Five Smooth Stones
This year, Genesis Farm has identified “Five Smooth Stones,” or five legal and governance strategies that we hope will challenge our human-centric, Goliath-sized, corporate-dominated system of governance. They are not the only “stones” in the legal toolbox, and others are surely evolving every day.
Yet these five stones are ones that continue to intrigue us, and ones that we believe deserve further support, exploration and development. They are strategies that we hope will someday delegitimize the amalgamated power of the corporate and financial giants, and prevent them from trampling the rights of individuals, communities and the natural world.
Earth Jurisprudence is a philosophy of laws that seeks continuity between humanity’s governance systems and our Earth systems. In 2001, Thomas Berry’s foundational document, the Ten Principles for Redefining the Origin and Role of Rights
, that suggested some important guidelines. It articulated the logical but critically important idea that the natural world gets its rights from the same place humans do: from the Universe that brought them forth.
Central to the ideals contained within Earth Jurisprudence are the rights of every being that exists. “The right to be, the right to habitat, and the right to fulfill its role in the ever-renewing processes of the Earth Community,” Berry states in Principle Five, are the foundational rights inherent in every member of the Earth Community. Whether the member be “living” in the typical human sense of the word or not, whether it be a seed, a tree, a mountain, or an ocean, it too has fundamental rights.
Though Western jurisprudence has made great strides in human rights and responsibilities toward one another, the rights of the rest of the Earth Community is largely ignored. As we move toward a wider understanding of rights, we are challenged to govern in a new way that respects the inherent rights of all members of a diverse and often unfamiliar Earth Community.
The idea is to govern ourselves in a restrained and respectful way that contributes to the health not just of humans, but to wider ecological communities. As Cormac Cullinan writes in his landmark book, Wild Law, “the ultimate source of jurisprudence and of law shifts out of the homosphere and beyond human control…it follows that human jurisprudence is embedded within, and bounded by, the larger and more significant Great Jurisprudence.”
The goal of shifting our colossal governance structures to a new philosophical framework is an ambitious one. Yet there are many promising initiatives taking hold all over the world. In 2008, Ecuador became the first country with a constitution that recognizes the rights of nature. “Nature, or Pacha Mama, where life is reproduced and occurs,” the new constitution reads, ”has the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes.” Other initiatives, just as Bolivia’s “Law of Mother Earth,” and the Universal Declaration of the Rights of Mother Earth, an international document that was birthed in 2010, indicate a new momentum for recognizing the rights of the Earth Community.
One fresh example can be seen in the ongoing work to expand the ideas inherent in the Public Trust Doctrine that has been emphasized by Canadian scientist Maude Barlow. She sees the potential for this doctrine, which is still a part of United States common law, to stand for the broader principle that Earth’s fundamental elements – its air, water, minerals and soil – must be protected for the common good.
The second stone we consider is a powerful and hopeful worldwide initiative that is completely in line with the basic tenets of Earth Jurisprudence. The Earth Charter
, which came into being in the year 2000, is an international declaration that articulates ethical principles for a just, sustainable and peaceful Earth community. The Earth Charter was drafted after an unprecedented decade-long dialogue between individuals and groups from all over the world. The leadership provided by Earth Charter Committee members Mary Evelyn Tucker, Steven Rockefeller, and members of the United Nations Environmental Programme was indispensible in this effort. Important foundational work was also accomplished earlier by Patricia and Gerald Mische of Global Education Associates.
Since 2000, the Earth Charter has been endorsed by over 4500 organizations, which include many governments, organizations and religious bodies. In the United States, the U.S. Conference of Mayors, the Episcopalian Diocese of Newark, Berkeley, California, and local towns from Oregon to New Jersey have endorsed the Earth Charter. No other document has built such a broad consensus around building a sustainable biocracy.
The document has also enjoyed support from Genesis Farm’s own bioregion. Following the tragedy of 9/11, Genesis Farm was able to encourage the mayors of 4 local New Jersey towns – in Hardwick, Frelinghuysen, Knowlton, and Hope -- to support the US Conference of Mayor’s endorsement of the Earth Charter.
The premise of the Earth Charter is a deep respect for the natural world, and the recognition that, in light of vast environmental devastation, humans have a responsibility to act. In order to move forward at this critical time, the Earth Charter’s Preamble states, “we must join together to bring forth a sustainable global society founded on respect for nature, universal human rights, economic justice, and a culture of peace.” Principle One, for example, states “Respect Earth and life in all its diversity.” Principle Four “Secure Earth’s bounty and beauty for present and future generations.” Principle Five calls upon us to “Protect and restore the integrity of earth’s ecological systems with special concern for biological diversity and the natural processes that sustain life.”
The Earth Charter’s participatory drafting process and subsequent widespread acceptance gives it strong international legitimacy. Some international lawyers now view it as a “soft law” document that is morally if not legally binding on signatories. It also provides valuable guidance to people and groups, and model language for governing bodies that draft legislation.
Our third stone looks at redefining and strengthening the rights of individuals and local communities as well as the rights of nature. When large corporate polluters come to town with development plans that could threaten community health and viability, local governing bodies that want to keep them out often discover– too late – that their existing ordinances and laws leave them no protection. But with the help of an innovative non-profit organization, things are beginning to shift. The Community Environmental Legal Defense Fund (CELDF), a non-profit Pennsylvanian law firm, collaborates with communities to prevent them from becoming unwilling victims to corporate pollution. Tom Linzey, an environmental lawyer with a fresh approach to the law, founded the organization.
Linzey and CELDF’s innovative strategy has already helped dozens of government bodies, including the city of Pittsburgh, draft and pass rights-based ordinances that promote local sovereignty and the rights of nature. The ordinances establish local self-government and “the people’s authority and consent,” and specify that “corporate entities…shall not enjoy special privileges or powers under the law which make community majorities subordinate to them.” Some ordinances go beyond the rights of people to recognize the rights of natural communities and ecosystems, stating that they also possess “fundamental rights to exist and flourish.” Local residents also are granted legal standing to enforce the rights of nature on behalf of those natural communities.
Using these ordinances, towns have successfully turned away corporations looking to open factory farms, privatize water, drill for gas (a process known as “fracking”), and more. CELDF’s services are in such demand that they founded the Democracy School, which trains elected officials and others how to effectively assert their rights and pass local ordinances. The school has trained officials, citizens and lawyers throughout the United States.
The fourth stone shines a new perspective on a storied American document. Article IV, Section 4 of the US Constitution states that "The United States shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence." The Domestic Violence Clause contained in that section has rarely been elaborated upon in American jurisprudence.
Michael Diamond, an environmental lawyer and the author of “If You Can Keep It: A Constitutional Roadmap to Environmental Security,” argues that the Domestic Violence Clause requires the federal government to protect its citizens
from self-inflicted harms that threaten our health or survival. The current ecological crisis, while not foreseen by the Constitution’s drafters, is the kind of epic crisis that could trigger this clause’s federal protections and provoke a massive reordering of federal priorities and spending. Diamond’s book details the history and wider purpose of the Domestic Violence Clause. He believes that the domestic clause would best be used by citizens to successfully petition the federal government to protect them from environmental and health degradation.
Our fifth stone addresses one of the biggest roadblocks to ecological progress: the global corporation. The number of national and global corporations that knowingly pollute the ecosystem and exchange our planet’s long-term viability for short-term profit is truly overwhelming. To many of those who spend their lives trying to protect Earth, no other human institution of our time has such Goliath-like status.
Nevertheless, it is helpful to remember that corporations are fictional legal entities created for human convenience. Evolutionarily speaking, profit-making corporations are brand new: by the early 1800s, there were only an estimated 300 of them in the United States. Early framers of the US Constitution were suspicious of corporations because they viewed them as a threat to democracy. Corporate lifespans and activities were therefore severely limited by the corporate charter.
In the last 200 years, corporate powers exploded as humans depended on them more and more to generate personal wealth. Today they enjoy “corporate personhood” and many of the same rights under the Constitution as actual people. In fact, when it comes to their resources, political influence, indefinite lifespans, and protection from personal liability, corporations have a powerful advantage over individuals. The early constitutional framers, as it turns out, were right about the threat to democracy. Local towns, citizens, and even states that take on a polluting corporate giant are often outspent, outnumbered, outmaneuvered and handily defeated.
The fundamental problem is that our laws grant corporations too much power and demand too few responsibilities in return. This is not to say that corporations are evil in themselves when created and governed for the common good. Ironically, it is thanks, in part, to scientific research funded by corporations that humans now know that we live in a fragile, interconnected planet with limited resources. A governance system that enables corporations to legally exploit our planet’s water, air, forests, mountains, and other bounty, regardless of the long-term impact, is no longer viable. Efforts at corporate reform, which are occurring on many levels, recognize that short-term profit for shareholders often propels the behavior that is a fundamental threat to the planet, to humans and all living species that depend on it for life. As Thomas Berry wrote, a new phase in corporate history will begin when “corporations recognize that a human economy can only exist as a subsystem of the Earth economy.”