Non-Western Legal Traditions and Environmental Law by Emilie Oudart

Page 15 Culture the Loire Parliament, aims to simulate a parliament of an entire river ecosystem with all interests represented – humans, the river itself, other elements of nature relying on the river – and demonstrate how these could interact and function in a system where such rights are recognised.

Conclusion

These initiatives not only mobilise and educate citizens, but also examine an important issue that must be addressed before we can give rights to rivers – how to exercise those rights. Rights without the concrete conditions to exercise them are useless, so we need to recognize the importance of an effective framework to enforce these rights once they have been granted. This will be essential to provide real empowerment and avoid a purely formal granting of rights. By smoothing out these practical elements, when the discourse finally reaches the top political level, rights can be granted to rivers in a meaningful way, rather than giving mere lip service to a vague notion.

The relationship between humans and nature is central to discussions on climate change and environmental challenges. Human activity can have a detrimental impact on the environment, facilitated by Western philosophies and their view on how humans should interact with nature. For example, property rights have been linked to a rise in deforestation as they promote investment and therefore encourage the agricultural use of land. Western legal systems are characterised by their emphasis on the rights of the individual. The core role of the individual in these legal traditions enables the exploitation of natural resources and diminishes the importance of preserving the environment. But how is this issue handled by other legal systems that existed long before the civil law and the common law came to dominate in Europe and, later, across much of the world?

The philosophies, beliefs and values underpinning some of these legal traditions highlight a very different approach to environmental law. We can, and should, learn from these approaches in our efforts to fight against climate change. These traditions have persisted and developed over millennia and more recently have inspired legal developments concerning the environment in many “Western” jurisdictions around the world.

Non-Western Legal Traditions and Environmental Law

By Emilie Oudart, JS Law and Political Science

Chthonic Legal Traditions The ancient legal traditions, described by H. Patrick Glenn as “chthonic,” are often associated with a highly respectful attitude towards the environment. Chthonic people live in close harmony with the earth, with their legal traditions emphasising the cycle and balance of life. In the traditions of many sub-Saharan tribes, for example, land is sacred and at the core of the legal system. It cannot belong to anyone absolutely and humans’ relationship to land is protected by supernatural forces. A particularly interesting feature of many chthonic legal traditions is the endowment of non-human entities with rights, including the dead, the supernatural, and the natural. This has important implications for environmental law and is an element of the chthonic tradition that is re-emerging in “state law” (official law backed by the coercive power of the state) in the concept of environmental personhood.

The idea of attributing legal personhood to natural entities has gained traction in many jurisdictions as a means of protecting the natural environment. Although the concept is often traced back to the 1972 work Should Trees Have Standing? — Towards Legal Rights for Natural Objects by Christopher D. Stone, an American academic, it is consistent with many chthonic legal traditions. The recent phenomenon of rivers being endowed with legal rights

Culture Page 16 highlights how non-Western legal traditions have played a role in putting Stone’s theory into practice. This was first seen in New Zealand’s Te Awa Tupua (Whanganui River Claims Settlement) Act 2017, which conferred legal personality on the Whanganui River. Maori tribes in Whanganui argued for legal personhood for the river based on their deep-rooted connection to it. The river is sacred to the tribes. In Maori teaching, humans and nature are closely intertwined and mutually interdependent. This legal development provides a clear example of the legal tradition of indigenous people influencing contemporary developments in “state law” on an environmental issue.

The Hindu Legal Tradition Other legal traditions have also had an impact in this respect. Recent court cases in India attributing juristic personhood to rivers illustrate the influence of the Hindu legal tradition and its approach to the natural world. The Hindu tradition is likely the oldest non-chthonic legal tradition in the world, dating back over 4,000 years. In India, some Hindu law has been codified and continues to apply directly to Hindus in areas such as family law. However, the influence of the Hindu legal tradition can be seen much more broadly, especially in environmental law.

The concept of rights is not part of Hindu law. Instead, karma and a strong emphasis on inherent duties and roles in life (dharma) drive respect for the natural world and prevent harm being done to it. Rivers are revered in Hinduism, with the River Ganges being the most sacred. In Salim v State of Uttarakhand in 2017 the High Court of Uttarakhand granted juristic personhood to the rivers Ganges and Yamuna. Although following New Zealand’s example, the Court explicitly drew on Hindu texts and customs, noting that “Rivers Ganges and Yamuna are worshipped by Hindus. These rivers are very sacred and revered.” It also placed emphasis on the fact that the Ganges is mentioned in the Rigveda, one of the original Hindu texts and a source of much of the Hindu tradition. While the Court’s order in this case was subsequently stayed, the reasoning in the judgment provides an illuminating insight into an alternative perspective on humans’ relationship with the environment and how other legal traditions can influence “state law.”

Conclusion

Describing cultures, customs and values as law may seem unorthodox and it can be difficult to understand the law in this way from a Western-centric perspective. But law existed long before the development of the civil law in the Roman Empire or the common law in England, and far beyond their jurisdictions. Many of these non-Western traditions are less formal and tend to be strongly intertwined with mythology or religion. Although not always visible to those of us who focus on “state law,” these legal traditions have endured and evolved over thousands of years. Today, these legal traditions are re-emerging in ‘state law’ to provide responses to issues like the environment where Western jurisprudence has proven problematic. While many are looking for new, bold ideas to address the climate crisis, the examples in this analysis suggest that some of the solutions are already available in existing non-Western philosophies. We simply need to broaden our perspective to find them.

“The relationship between humans and nature is central to discussions on climate change and environmental challenges. Human activity can have a detrimental impact on the environment, facilitated by Western philosophies and their view on how humans should interact with nature.”

“We stand now where two roads diverge. But unlike the roads in Robert Frost’s familiar poem, they are not equally fair. The road we have long been traveling is deceptively easy, a smooth superhighway on which we progress with great speed, but at its end lies disaster. The other fork of the road — the one less traveled by — offers our last, our only chance to reach a destination that assures the preservation of the earth.” -Rachel Carlson, Silent Spring