Introduction

Wild law is an approach that seems to deviate from the known anthropogenic style of governance to a more eco-centric approach. It is a philosophy that seeks to recognize earth as the primary law giver and therefore bolster passionate and intimate connections between people and nature. Several scholars have continued to expand the frontiers of the theory and more importantly, devise means by which it can be used as a way of protecting and conserving our diminishing natural recourses. This paper will highlight how the wild law theory can serve as a  tool for environmental protection and also platform that encourages public participation by incorporating traditional indigenous knowledge where human beings and the environment can coexist harmoniously.[1]

Wild Law and Earth Jurisprudence defined

Wild law is an emerging theory that is advocated by Cormac Cullinan.[2] The theory supports Thomas Berry’s[3] argument that natural world has to be recognized as having rights and privileges similar to the rights accorded to natural or legal persons.[4] According to Berry, there should be a paradigm shift of jurisprudence which will restructure and re-define the relationship between the human and earth community which must be mutually enhancing.[5] Berry believed that the earth is maternal and a nurturing principle therefore the source of human existence. He states that there has been glaring discontinuity between humans and the non-human which should not be the case.[6] The discontinuance has led to the massive and unsustainable exploitation of resources. Filguiera and Mason for example argue that current legal system which is anthropogenic centered has legitimized the unconstrained exploitation of the natural world.[7] They further clarify that wild law does not mean irrational principles but instead they are derived from the laws of nature where components of earth like; the land, the water, the air and the complex of life system, and has to be shared in proportion to the needs of the earth community.[8] The argument elaborates the position taken by Berry that rights originate from the universe and therefore every component must have ‘the right to be, the right to habitat, and the right to fulfill its role in the ever-renewing process of the earth community.’ Angyal points out that, ‘human rights do not cancel or extinguish the rights of other modes of being to exist in their natural state.’[9]  Bell argues that it will be tantamount to ‘sending a fox to guard the chicken’ if human jurisprudence is used to recognize and protect the rights of other species.[10] Berry’s argument that objects should be accorded rights is played out in the Sierra Club[11] case. This is sn American case concerning a decision by the forest service to approve plan by Walt Disney Enterprises to build a $35,000,000 resort in the mineral king valley, which the court describes as ‘an area of great natural beauty nested in the Sierra Nevada Mountains’. Sierra Club opposed the plan arguing that forest service violated federal statutes. The supreme court refused to grant sierra club standing even though they brought the suit under public interest, and not to mention their long standing on preservation of the environment.[12]  Findley and Farber point out that the court relied on the two grounds that the plaintiff must show; an ‘injury in fact’ and an interest which, according to the court, they failed to demonstrate.[13] Stone points out that instead, mineral king valley could have been designated as the plaintiff who has been adversely affected and thus meeting the ‘injury in fact’ test. In dissenting, Douglas J opined that it could have been simplified by allowing the environmental issues to be litigated by using the names of in animate objects that are about to be ‘despoiled, defaced, or invaded.’[14] This position embraces Cullinan’s wild law theory. According to Stone each time there is something new to be granted rights, it is considered odd and mostly laughable especially where non-human objects are involved. But he wonders why a river or a tree cannot enjoy rights and privileges that humans have. He points out in particular that corporations which are legal persons, just like trees, do not have voices yet they have rights.[15] He argues that there should be a mechanism where a friend of a natural object can apply to the court for the establishment of a guardian.[16] For example where a river is polluted, instead of the lower riparian or the affected person being awarded compensation, it can instead be channeled to the river through a natural or legal person who will utilize the funds in the cleaning of the river.[17] Wild law therefore is motivated by the believe that it is important to change our relationship with the natural world by adopting a more democratic participation process in a community of other beings through enacting laws that recognize other members of the earth community and also restraining humans from unjustifiably infringing their rights. Earth jurisprudence is a term that Berry referred to as ‘new jurisprudence, philosophy of law, ethics and governance that recognizes earth as the primary giver of law.’ Earth jurisprudence is ‘laws or principles that govern how the universe functions.’[18]Cullinan argues that Wild law expresses earth jurisprudence because it seeks to foster and deepen our relationship with our own nature.[19] Filgueira and Mason state that wild law is the ‘rules, regulations and constitutional principles that give effect to earth jurisprudence.’[20] Cullinan points out that the human societies are savaging earth by consuming the ‘natural capital’ faster than it can accumulate or re-generate therefore impairing and diminishing the earth’s capacity to maintain life. He argues that we should change our governance system to prevent this behaviour by adopting more eco-centric laws. Furthermore he notes that, it is not only the laws which must change but also the society itself. He proposes the adoption of earth jurisprudence and wild law despite the challenges that will ensue.[21] According to Filgueira and Mason, earth jurisprudence advocates for nature to be valued for its own ‘inherent worth’ and not necessarily because it is valuable to human beings.[22]

Wild law indicators

Filgueira and Mason in their work recognized and appreciated the fact that earth jurisprudence is still in its infancy and thus identified three principle Wild law indicators that can be used as a yard stick to assess ‘wildness’ of individual laws.[23]  These three indicators are: Earth centered governance; mutually enhancing relations; and community ecological governance. Earth centered governance for example condemns the anthropogenic modern jurisprudence but advocates for earth jurisprudence which is premised on respecting the intrinsic value of earth and its members. This indicator obliges humans to act in a manner that is consistent with the natural state of the environment.[24] For example Higgins proposal to add Ecocide to the list of crime against peace is a good example of law that is earth centered. Higgins defines ecocide as ‘large -scale destruction, in whole or in part, of ecosystems within a given territory.[25] According to Higgins, creation of crime of Ecocide will create an obligation to act responsibly before damage or destruction of a given territory.[26] In addition she also advocates for the proclamation of Universal Declaration of the Rights of Mother Earth, a position which Cullinan also acknowledges.[27] The second indicator promotes mutual relationship between members of the earth community and humans. It indicates that humans have a critical role to ensure this mutual relationship is maintained by restraining unsustainable exploitation of natural resources.[28] Lastly community ecological governance (CEG)denotes the intimate relationship between humans and the natural word and the role humans can play to reduce damage to the natural world. It advocates for the participation and involvement of all members of the earth community living within the ecosystem affected. Environmentalist have used CEG to engage the communities especially in learning traditional ways of listening to nature, and giving effect to nature’s voice when formulating laws, policies, plans and programmes that affect them.[29] These environmental entities  advocate for the recognitions of the full rights of the indigenous communities to manage the natural resources within their territories in accordance with their traditional use and customs.[30] Cullinan for example notes that governments should allow the indigenous people self-determination and permit them to self-regulate.[31] The significance of indigenous community in sustainable development was further elaborated in the Rio plus 20 conferences. In its final document, states were called upon to engage indigenous communities’ knowledge and skills to achieve sustainable development.[32] In conclusion, it is necessary to develop and incorporate principles of Wild law and Earth jurisprudence in our laws despite the enormous challenges that accompany it. There is urgent need to rethink how we view our natural world by changing our governance system which has proved to be anthropogenic, and strive to establish eco-centric laws, for example adoption of Ecocide as crime against peace. It is also important to embrace CEG that advocates for involvement of indigenous community in conservation of natural resources as elaborated by the recent outcome in Rio plus 20 conferences. Therefore, it will require more ambitious and creative individuals to influence the adoption of wild law and earth jurisprudence practices in the contemporary jurisprudence.

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* Mr. Marrirmoi is an Environmental Lawyer and an advocate of the High Court of Kenya of over 12 years standing. He holds a law degree (LLB) from Moi University and a post graduate diploma from Kenya School of Law (KSL).  I addition he holds a master of laws (LLM) in environmental law and policy from University of Kent, UK and also a Ph.D. candidate at the University of Nairobi- Institute of Climate Change and Adaptation (ICCA). He is currently the President of the Kenya Environmental Lawyers (KELA).

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References

1. [1] See Generally C. Cullinan, ‘Wild Law: A manifesto for earth justice’ (2010, Green Books). C. Stone, ‘Should tress have standing?’ (2010, 3^rdedn, OUP). C.  Stone, ‘Should tress have standing?’ (1996, OPI) G.Triggs, ‘the rights of the indigenous people to participate in resource development; an international legal perspective’ in Zillman, Lucas and Pring, ‘Human rights in natural resources development: public participation in sustainable development in mining and energy resources’ (2002, OUP). P. Higgins, ‘Eradicating Ecocide’ (2010, Shepherd-Walwyn). A.J Angyal, 'Thomas Berry's Earth Spirituality and the “Great Work”' (2003) 3 The Ecozoic Reader 34. Available at http://www.ratical.org/many_worlds/GreatWork.html-   accessed on 7^th August 2023.
2. M. Bell, 'Thomas Berry and an Earth Jurisprudence' (2003) 19(1) Trumpeter. Available at http://scholar.google.com/scholar?hl=en&q=Thomas+Berry+and+an+Earth+Jurisprudence+An+Exploratory+Essay&btnG=&as_sdt=1%2C5&as_sdtp= accessed on 7^th July 2023.
3. B. Filgueira, & I.Mason. ‘Wild Law: is there evidence of earth jurisprudence in existing laws and practice? (2009) UK Environmental Law Association.
4. [2] Cormac cullinan is a practicing environmental attorney based in Cape Town and author of the book Wild Law: A Manifesto for Earth Justice.
5. [3] A cultural historian who focused on intersection of culture and ecology. See http://www.gaiafoundation.org/thomas-berry accessed on 7th  August 2023.
6. [4] B. Filguera, and I.Mason, (2009) supra n1, p3. M. Bell, (2003) n 1,p5 points out Berry’s argument that we need to grant rights to non –humans and also think like mountains, which he acknowledges that it will be hard to think like a non – human. C. Stone, (2010) n 1,p3 notes that legal rights should be given to forests, oceans, rivers, and other natural objects. He makes also clear that giving rights to tress does not mean that we can’t cut them down nor to be construed that every single thing in the universe will have rights.
7. [5] Ibid B. Filgueira and I. Mason (2009) 2. Furthermore he argues that the western culture has eroded and diminished wild law. A. J Angyal, (2003), supra n1, p1. Points out that Berry’s arguments seeks to reunite humans with nature .it is also ‘a reunification of science and religion.’
8. [6] A. J Angyal, (2003), supra n 1, p1. See also M. Bell, (2003) n 1, p5 arguing that the relationship between the universe and its species has broken down and dysfunctional.
9. [7] See B. Filgueira and I. Mason (2009) supra n 1, p2.
10. [8] Ibid B. Filgueira and I. Mason (2009) 3.  See also A. J Angyal, (2003), supra n 1, p5. Who comments on the position taken by Berry, terming the current governance system as, ‘anthropocentric, mechanistic, reductionist, and exploitative thinking about the non- human world’ See also M Bell, (2003) n 1, p8.
11. [9] A. J Angyal, (2003), supra n 1, p4. See also C. Cullinan, (2010) n 1, p101.
12. [10] M. Bell, (2003) n 1, p2 and 8. According to him, human jurisprudence is not the proper framework for protecting the rights of other species because it could have done so long time ago. He also notes that human jurisprudence is adversarial in nature, and therefore requires that there must be a winner and a loser unlike earth jurisprudence which is premised on the principle of mediation by promoting mutual relationship between the members of the earth community and also looking for a common ground. Moreover Bell argues that human jurisprudence favour the rich who can afford legal fee.
13. [11] Sierra Club v Morton 405 U.S. 727 (1972)
14. [12] R.W. Findley and A. Farber ‘Environental law: in a nutshell’ (1992, 3^rdedn, WP).
15. [13] Ibid R.W. Findley and A. Farber, (1992). However, according to them, the injury to the aesthetic beauty and their inability to hike into the unspoiled wilderness is sufficient to constitute ‘an injury in fact.’
16. [14] See C. Stone (1996, OPI) n 1. C. Stone (2010, 3^rdedn OUP) n 1 and R.W. Findley and A. Farber, (1992) n 1, p3
17. [15] C. Stone (1996, OPI) n 1, 5 and 12 and C. Stone, (2010, OUP) n 1, p3-4.  He further notes that there will always be resistance to giving rights until when it can be seen to be valuable to itself. Stone goes further to determine what it entails to be a holder of rights: there must be a public authority which can give review to actions that are inconsistent with the right; some authority which can review actions and process of those who threaten the right; can institute a legal action at its behest and in determining the granting of legal relief, the court must take injury into account and that the relief must run to the benefit to it. See also C. Cullinan, (2010) n 1, p97. Referring to definition of ‘rights’ given Berry who stated that  rights mean ‘freedom of humans to fulfill their duties, responsibilities and essential nature and by analogy, the principle that other natural entities are entitled to fulfill their role within the earth community.’
18. [16] C. Stone (1996, OPI) n 1, p13. S. Stone, (2010) n 1, p8. The argument that the guardian may not be able to judge the needs of the river will of course suffice.
19. [17]  See C. Stone, (2010) n 1, 13 this will mean bringing the suit using the name of the river and the judgment would be for the benefit of the river. He also states that if a trustee in a bankruptcy proceeding can be appointed, or a representative or custodial trustee for a minor or mentally challenged persons, then it can be possible to do the same for non-human objects like rivers and mountains.
20. [18] See C. Cullinan, (2010) n 1, 30, 78. He also defines Earth jurisprudence as ‘legal philosophies developed by humans that are to a large extent derived from, and consistent with great jurisprudence.’ B. Filgueira and I. Mason (2009) n 1, 3. Also defines earth jurisprudence as ‘the philosophy of laws and regulations that gives formal recognition to the reciprocal relationship between humans and the rest of nature.’ They further argue that ‘nature itself can enhance human freedom and wellbeing if the reciprocal nature of the relationship is fully recognized and allowed to be effective.’
21.  [19] Ibid C. Cullinan, (2010) who points out wild laws focuses more on strengthening their relationship than on end points.
22. [20] Filgueira and I. Mason (2009) n 1, 4
23. [21] See C. Cullinan, (2010) n 1, 36- 61.
24. [22] Filgueira and Mason, (2009) n 1, p4.
25. [23] Filgueira and Mason, (2009) n 1, p5.
26. [24] Ibid Filgueira and Mason, (2009) 5.
27. [25] See P. Higgins, (2010) n 1, p62 and 63 According to her, ecocide should be defined as ‘the extensive destruction, damage to or loss of ecosystem(s) of a given territory whether by human agency or by other causes, to such an extent that peaceful enjoyment by the inhabitant of that territory has been severely diminished.’ She further notes that if ecocide is not included in the list of crimes against peace, there will be proliferation of ‘resource wars’ because where there is resource depletion, war comes chasing close behind.
28. [26] See P. Higgins, (2010) n 1, p71.
29. [27] P. Higgins, (2010) n 1, p167. See C. Cullinan, (2010) n 1, p189. A Declaration that inter alia support demands of the indigenous communities. Ecuador for example has adopted this principle in its 2008 Constitution.
30. [28] See Filgueira and Mason, (2009) n 1, 6.
31. [29] Ibid, Filgueira and Mason, (2009) 6.
32. [30] See Custodian Statement 2008 (2010) A Statement of Custodians of Sacred Natural Sites, in Verschuuren B, Wild R, McNeely, JM, Oviedo G. (2010) Sacred Natural Sites, Conserving Nature and Culture, earth scan, London.
33. [31] C. Cullian , (2010) n 1, p102.
34. [32] See in particular paragraph 43 of the Rio plus 20 outcome document available at http://daccess-dds ny.un.org/doc/UNDOC/GEN/N12/381/64/PDF/N1238164.pdf?OpenElement. Accessed on 7^th August 2023.

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