Three states of mind needed to solve today’s environmental crises
Consciousness, imagination and thoughtfulness. Three states of mind needed to tackle today’s environmental crises. Consciousness because we need to be aware of the environmental problems if we are to solve them. Imagination because we need to rethink how we can solve the environmental problems. Thoughtfulness because we need reflection and deliberation in the implementation of environmental law and governance.
Consciousness, imagination and thoughtfulness. Three states of mind needed to tackle today’s environmental crises. Consciousness because we need to be aware of the environmental problems if we are to solve them. Imagination because we need to rethink how we can solve the environmental problems. Thoughtfulness because we need reflection and deliberation in the implementation of environmental law and governance.
Consciousness involves awareness, not apathy; awareness involves activity, not passivity; activity involves searching for solutions, not suffering the status quo.
We need to identify the pervasive, pernicious and pressing problems for people and planet. We need to explore the nature and scope of these environmental problems. We need to triage them. We cannot solve all at once, but must decide the order of treatment.
Consciousness, imagination and thoughtfulness. Three states of mind needed to tackle today’s environmental crises
We need to recognise the complexity and polycentricity of environmental problems, each a spider web of sophistication and synchrony. Each issue of the environmental problem is linked by interacting points of influence to the other issues. We need to note the nodes and internodes, identify the interconnections between issues. A decision about one issue leads to a spontaneous transformation of the nature and scope of the other issues, changing the decision to be made on those issues.
These characteristics of interconnectedness and interactivity occur not only amongst the issues of an environmental problem but also between the environmental problem and the law and governance. Environmental consciousness calls for identification of the intersections between issues of law and governance and environmental problems. An illustration is climate conscious lawyering. A climate conscious approach involves an active awareness of the causes and consequences of climate change and how they interact with daily legal problems.
This is where imagination, and for lawyers, legal imagination, assists. Legal imagination is a feature of all law. Environmental law scholar Liz Fisher describes legal imagination as the set of collective mental constructs that lawyers and legal scholars use in thinking about the law and how it applies.
Law is a form of social ordering. One of its purposes is to anticipate and address problems in social ordering. Environmental problems are types of social ordering problems. Environmental law is the law of environmental problems. Environmental law frames our understanding of the world and our interactions with it and amongst ourselves. Law requires the finding of different facts to establish different legal conclusions about the world and our interactions with it and amongst ourselves.
Legal imagination leads to a reframing through the law of our relationship with, and responsibilities to, the environment and other people.
Legal imagination is used to think about how law can reframe and better address problems of social ordering, including environmental problems. Legal imagination leads to a reframing through the law of our relationship with, and responsibilities to, the environment and other people.
Albert Einstein is attributed with observing that insanity is doing the same thing over and over and expecting different results. Insanity in environmental law and governance is using the same legal tools over and over and expecting them to solve environmental problems when they have not before, let alone solve new environmental problems.
The environmental crises we are confronting call for new ways to understand our ever-changing environmental, social and economic worlds. Our legal thinking must be developed to make sense of and solve the crises we are facing. We need to develop the law to respond to a world of polycentric problems, multiple interconnected parties, scientific uncertainty and socio-political conflict. Law thereby co-evolves with the changing world. The law, as a meta-concept, is always reworking legal stability in light of new facts, new thinking and new laws.
We can see legal imagination at work in the reformulation of the rule of law to include the environmental rule of law and the proposal of the Draft Global Pact on the Environment. The Draft Global Pact restates some existing legal tools, such as the sustainable development principles of integration and sustainable use (Art 3), inter-generational equity (Art 4), prevention (Art 5), precaution (Art 6), and polluter pays (Art 8), and the principles of access to information (Art 9), public participation (Art 10) and access to environmental justice (Art 11). The Pact improves and extends the application of other existing legal tools, such as the right to an ecologically sound environment (Art 1). The Pact also adds new legal tools, reframing out legal responsibilities to the environment, such as the duty to take care of the environment (Art 2) and to maintain and restore the resilience of the environment (Art 16), and our governance of the environment, such as adopting, implementing and enforcing effective environmental laws (Art 15) and refraining from adopting laws that reduce environmental protection (Art 17).
So too, a global pact on the environment is on its way and we can hear it breathing.
This imaginative process involves thoughtfulness. Legal philosopher Jeremy Waldron suggests that thoughtfulness in the law is “the capacity to reflect and deliberate, to ponder complexity and confront new and unexpected circumstances with an open mind.” In this way, thoughtfulness involves invoking legal imagination to adapt and evolve law and governance to address the new environmental crises. Waldron also calls for thoughtfulness in the implementation of the law and governance systems, so is that it is “thoughtful and reasoned, rather than rigid and mechanical.”
The call for thoughtfulness is an appeal to the ideals of the Enlightenment, for evidence-based, methodologically sound, rational and reasoned decision-making. Such enlightened environmental decision-making has been jeopardised of late by the rise of right-wing populist governments. In the face of increasing environmental threats such as climate change, we have seen denial and failure to act or even worse, regression by repealing or rolling back environmental laws and protection. In response, we need to reassert and return to the ideals of enlightened environmental law and governance. The Draft Global Pact encourages this quest, calling for improvement of scientific knowledge of ecosystems and the impact of human activities (Art 13).
Aristotle observed in his Politics that “the law is reason unaffected by desire.” We do need the law to be connected to, and founded on, reason. But desire should not be dampened or discarded. We need desire too: desire to divine the dire difficulties we face; desire to design solutions to these difficulties; and desire to deploy the solutions and develop good governance.
Desire also drives optimism and dispels pessimism. On days when the strife and struggle seem insurmountable, it is understandable to feel pessimistic. In these dark days, we can be inspired by Arundhati Roy’s optimism: “Another world is not only possible, she is on her way. On a quiet day, I can hear her breathing.” So too, a global pact on the environment is on its way and we can hear it breathing.
1 J Jowell, “The Legal Control of Administrative Discretion“ [1973] Public Law 178, 213-215; LL Fuller, “The Forms and Limits of Adjudication” (1978) Harvard Law Review 353, 371, 395.
2 Brian J Preston, “Climate conscious lawyering” (2021) 95 ALJ 51.
3 Elizabeth Fisher, Environmental Law: A Very Short Introduction (Oxford University Press, 2017) Ch 5; Elizabeth Fisher, “Legal Imagination in the Anthropocene” (2021) LJIL (forthcoming). See also M. Del Mar, Artefacts of Legal Inquiry: The Value of Imagination in Adjudication (2020).
4 Elizabeth Fisher, “EU Environmental Law and Legal Imagination” in P Craig and G de Burca, The Evolution of EU Environmental Law (3rd ed, OUP, forthcoming).
5 Fisher (2017) (n 3) 51.
6 See Elizabeth Fisher, ‘Law and Energy Transitions: Wind Turbines and Planning Law in the UK ‘ (2018) 38 OJLS 528, 531, 553; and Elizabeth Fisher, Eloise Scotford and Emily Barritt, ‘The Legally Disruptive Nature of Climate Change ‘ (2017) 80 MLR 173, 175 and Peter Birks, “Adjudication and Interpretation in the Common Law: A Century of Change” (1994) 14 LS 156, 158.
7 IUCN World Declaration of the Environmental Rule of Law.
8 https//:globalpactenvironment.org/en/
9 Jeremy Waldron, “Thoughtfulness and the Rule of Law” (2011) 18 British Academy Review 1, 1.
10 Ibid.
11 Brian J Preston, “The End of Enlightened Environmental Law?” (2019) 31 JEL 397.
12 Arundhati Roy, An Ordinary Person’s Guide to Empire (South End, 2004) 86.
