Interconnected Law: a paradigm shift in legal thinking

For property law, an interconnected approach would be to find the relational context of the property and to see what it would mean for these relationships to be…

For property law, an interconnected approach would be to find the relational context of the property and to see what it would mean for these relationships to be just. For many things, such as ecosystems, ownership would be transformed to something more akin to ‘stewardship’, with responsibilities attached to the power of ownership. Ownership of land which contains a habitat could have the legal responsibility to ensure that ecological health is maintained, for example. Perhaps someone who owns a house could have a responsibility to the local community and society that the house be used in the public interest, which could be determined by a democratically-created policy similar to a council’s housing strategy. This might require a landlord to rent to a family instead of converting their property into flats to rent to ‘young professionals’, or it could mean that somebody has to sell their second home to somebody in need of a first home.

The aim of Interconnected Law is not a totalising one, that every relationship should be controlled by law. It should first be recognised that law is already involved in the relationships that make up our society and our world, though there are still ways in which Interconnected Law does seek to expand law’s domain. The vision is instead for law to be involved in the manner of a gardener or a mentor: it intervenes when intervention is necessary, tries to set something on the right path, and then steps back. Law should be used with a goal in mind, but once the work is done it should step back and shed its power, aiming towards a utopia where it is not necessary.

Relationships with Nature

The ecological part of an interconnected approach to law has been fairly well mapped out in Earth Jurisprudence, one of the works of scholarship which Interconnected Law is based on. We should understand that we are part of the community of all living things and natural systems. Law currently facilitates our domination and destruction of Nature, and our approach to environmental law is a piecemeal afterthought which can do little to actually achieve sustainability.

Earth Jurisprudence gives a vision for how law could be part of creating a harmonious relationship with the rest of Nature, preventing further destruction, restoring damaged ecosystems and working to harmonious relationships with Nature in which we respect it properly and receive what we need to survive, whether that’s fresh water, food to wear, places to live or temperatures that we can live in.

Part of this vision is that Nature should be able to play an equal role in our legal system, and have legal rights as part of this. Whereas environmental law usually protects the environment indirectly, by limiting human activity, rights for Nature would allow Nature to participate in our legal system and defend itself, via human intermediaries and representatives. In the interconnected web of life and systems, rights would have to exist at all levels. While individual animals should have rights, more important would be collective animal rights, the rights of ecosystems, and the rights of planetary systems.

One example of this could be to give the climate rights to defend itself. The current law around the climate is strange, with international targets or obligations for states, and domestic government regulation over particular economic activity. In this framework, climate litigation has to be brought innovatively through mechanisms like constitutional duties to future generations. Instead, situating climate law in the relationship with the climate itself would be a better framework to challenge unsustainable emissions and pollutions directly, at every level.

Rights of Nature is not just an abstract idea – it has been implemented in a handful of cases around the world. Ecuador introduced the idea into its constitution and Bolivia introduced legislation to give Nature rights, an idea that fits well with their indigenous people’s ideas of Pachamama. In New Zealand, a particular river system was given legal personhood, and in Colombia and India courts have developed rights for particular ecosystems. In the USA, CELDF have been working on rights of Nature at local levels.

The end goal is not simply for Nature to have rights – this is just a necessary part of transforming law to look at the relationships. As rights of Nature would frequently conflict with existing rights and human rights, law would be about the relationship between rights-bearers. If Nature had rights, it could protect itself from various human (or corporate) activities, make specific claims against communities and individuals, and challenge our ideas of economic growth and development. Beyond just protection, it could also demand things from us, such as restoration, care and nurture. As with the general Interconnected approach, the legal system will be much more about the relationships between rights holders than about rights themselves.

As a reminder, the idea is not that a change in our legal system would, of itself, be enough to make the necessary change. It would be an easy change in name only, as has been the case with many legal declarations. Legal transformation will only realise justice with broader political change, but the broader political change requires legal transformation as part of it.

Corporate law

Corporate law has the same fundamental problem as our general approach to liberty: it creates power without responsibilities. Regulation of corporate activity currently has piecemeal limitations around the edges of what corporations do, such as specific pollution control regimes or a requirement to publish a statement about addressing modern slavery. An interconnected approach would be more transformative, seeking to change this fundamental dynamic. Corporate law could be approached by mapping out the different relationships and impacts that corporations have and seeing what legal change would be needed for these relationships to be just.

So far, there does not seem to have been much in the way of radical legal thinking about corporations. The only things I have come across are the Sustainable Companies Project, which looked at integrating environmental concerns into corporate decision-making, and the Treaty Alliance, which rightly argues that the current Guiding Principles on Business and Human Rights do not go far enough in addressing corporate human rights abuses.

Current UK corporate law gives directors of a company the legal duty of promoting the success of the company for the benefit of its shareholders. Though this is broader than the common myth that directors are legally required to ‘maximise shareholder value’, it means that any ideas of sustainability are more of an afterthought.

The idea of a ‘triple bottom line’, where a company measures social and environmental performance as well as financial performance, could become a legal framework instead of an approach which corporations can use voluntarily. This would turn the different impacts that businesses can have into legal duties that would be parameters for legitimate business activity.

A company could be required to be beneficial to the society it is in, and to communities impacted by its operations. It could be required to be responsible for respecting and realising human rights in its supply chain; being fair to its employees; and having a positive impact on other aspects of Nature. This would be comparable to the ‘duty of care’ that exists in tort law, but as well as being broader for who is owed such a duty, it would also go beyond negative responsibility to avoid or compensate certain harms and includes positive responsibilities too.

Some of these obligations should be easy to meet: companies should be beneficial to societies and communities through the goods or service they provide, employing people and paying tax. When there is instead poor employment practices, shoddy products and tax avoidance, these are not just bad actions by a company, but relational injustices which should be addressed. This approach might seem onerous – but then why should companies be able to make a profit while destroying the natural world?

Criminal law

Criminal law is an area which already has ideas in the ‘relational’ or ‘interconnected’ paradigm which could be brought into the Interconnected Law approach. The liberal approach to crime sees only an individual who has committed a bad act and who needs to be punished and rehabilitated. It does not consider any relational context, and therefore focuses on policing crime in an abstracted way. Instead, we should situate the ‘crime’, the perpetrator and the harm caused in its relational context.

Looking at socio-economic causes of crime and the ‘public health’ approach is part of a relational approach to the context of why people commit crimes. The ‘public health’ description is often described as ‘treating violence like an infectious disease’, but it could be described as being about circumstances and relationships which cause or reproduce violence. This looks at changing outcomes instead of catching criminals, and makes more obvious behaviours which should be dealt with by means other than criminalisation, such as recreational drug use and rough sleeping.

Grounding the discussion of crime in interconnection helps remind us to focus on what we are trying to achieve. We should not be aiming to catch criminals, or even for there to be an absence of crime, but to realise security and wellbeing. These are values which are best understood and realised relationally: security is not about protecting ‘good people’ from ‘bad people’ but about relationships of security which provide conditions in which people are safe.

Restorative justice and transformative justice are both relational approaches to criminal justice, shifting the focus away from an individual’s actions to instead look at relationships. Restorative justice focuses on the harm caused by particular behaviour(s) and tries to repair this damage, involving the perpetrator in a process which hopes to be positive for them too, as well as restoring the relationships with and in the community. Transformative justice is about changing the conditions which cause crime, rooted in transforming community infrastructure and relations into ones which produce safety and care instead of harm and isolation, and seeking to avoid reproducing violence and harm in this response.

These ideas are an example of the sorts of ideas which already exist in the relational or interconnected paradigm, which can be brought into the overall Interconnected Law approach.

The legal process

In a transformed legal system, the legal process would itself also be different. From the current vantage point, I only have a vague sense of how this might be.

It is already the case that law often seeks to resolve conflicts without the need for a judge to adjudicate: many people will follow the law to avoid any involvement with the law, and legal disputes are frequently resolved informally, with pre-action letters, through litigation and settlement and arbitration, and it is only when this fails that something ends up in court. This could be taken further, though, as the legal process itself should be part of the endeavour of realising better relationships,

Instead of pitting people against one another as adversaries who are encouraged to care only about their own best interests, law could work to encourage people to cooperate in resolving conflicts. This could include using community engagement in early stages of dispute resolution, seeing if a dispute can be resolved by a mediator or community institution, and having decisions approved or made by citizens assemblies and juries where possible. It would also look more towards proactive transformations than simply dispute resolution. The recent Citizens Assembly on achieving net-zero which was established by Parliament is just the beginning of what this might look like in terms of policy-making.

Conclusion

Interconnected Law is a vision for how our legal systems could be, and for how law itself should be transformed as part of addressing injustices in our current society and around the world. The core critique is that law should look not at individuals and individual freedom but at the network of relationships we live in, and work to make these relations ones which nurture and empower instead of which harm, limit or exploit.

The argument is certainly not that law should be the main way we try to change society. It is that law must itself be part of the broader political and social transformation we need, and a part which has been somewhat overlooked so far. I hope that the Interconnected Law approach will be useful to a range of social movements and political tendencies as we seek to realise better worlds.

This is a radical approach to law, and I anticipate that many will respond by saying ‘it’s a nice idea, but that isn’t what law is’. The response to that is: this is what law could be, and radical is what is needed.

The Interconnected Law project seeks to develop and share ideas about law and ultimately transform our legal systems. If you are interested in discussing the ideas further, working or partnering with us or helping fund the project, please get in touch — you can find us at www.interconnectedlaw.com or @InterconLaw on twitter.


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