The Spirit of the Law

Tears, climate rights, the more than human world, and Popper's World III.

The search for this latent and living law—not the law of prescriptive rules or of bureaucratic policies, but the elementary code of human interaction—has been the staple of the lawyer's art wherever this art was practiced with the most depth and skill. What united the great Islamic 'ulama', the Roman jurisconsults, and the English common lawyers was the sense they shared that the law, rather than being made chiefly by judges and princes, was already present in society itself. Throughout history there has been a bond between the legal profession and the search for an order inherent in social life. The existence of this bond suggests that the lawyer's insight, which preceded the advent of the legal order, can survive its decline.

- Roberto Mangabeira Unger

I was crying on the train yesterday. I did not feel sad, weak, or in need of consolation. The tears appeared unbidden, as they often do, sent out by the part of me that resolves to remember something important in search of that part of me that pretends to forget, asking him to come home.

The best answer to ‘why are you crying?’ is sometimes: “Because I’m human”, perhaps followed by: “Why aren’t you crying?” and then maybe a smile, but there is usually a precipitating factor.

I had just watched a short clip (below) about Tuesday’s verdict at the European Court of Human Rights (ECHR). I was particularly moved by the moment when the young Sofia Oliveira expressed her disappointment at not winning the case she had been part of for four years.

I wanted to tell her: but you did win, and the feeling that accompanied the thought tipped me over the edge.

Sofia spoke on behalf of a group of young Portuguese activists taking their governments to court for not acting with sufficient resolve and urgency on climate collapse. The Global Legal Action Network (GLAN) site gives more details, but the critical line is this one:

After witnessing devastating forest fires and experiencing ever-worsening heatwaves, six Portuguese young people decided to act. On 3rd September 2020, they launched an unprecedented case against over 30 European countries in the European Court of Human Rights. Finally, following the hottest summer on record in Europe, their case was heard on 27th September 2023. The historic hearing took place before 22 judges with 86 government lawyers in attendance; unprecedented in scale, the case received worldwide attention, with over 6000 mentions in the press in 71 countries, and counting. The case of the ‘youth-Applicants’ is simple: time is rapidly running out to safeguard their futures. European governments have a legal duty to take far more radical and urgent action to slash greenhouse gas emissions.

In Duarte Agostinho and Others v Portugal and 31 Other States six young Portuguese people - Mariana, Sofia, André, Catarina, Cláudia and Martim - argued that countries bound by the European Convention on Human Rights — the 27 EU states, as well as the United Kingdom, Switzerland, Norway, Russia and Turkey — had infringed several human rights after heatwaves and forest fires closed down their schools and risked their health. Amnesty International submitted a joint third-party intervention in the case on the obligation on governments to create climate policies that protect the rights of people outside their borders.

The Portuguese case was considered alongside two related cases. Damien Careme, a former Mayor of Grande-Synthe, a Suburb of Dunkirk in France, argued that the French Government has neglected its climate obligations in a way that heightens the risk of flooding in his area. In Klimaseniorinnen Schweiz and Others v Switzerland, a group representing more than 2,500 older Swiss women argued that their government’s failure mitigate climate collapse with the requisite resolve violated their human rights to health and life, and put them at risk of dying during heatwaves.

The French case was thrown out mostly because Damien Careme no longer lives in the area he argued was threatened, and he did not therefore have ‘victim status’.

The Portuguese case was also deemed inadmissible, but the verdict was more nuanced. The court did not accept that countries other than Portugal (‘extraterritorial jurisdiction’) could be held responsible for upholding the rights of the Portuguese youth (‘the convention does not extend…’). Moreover, since the applicants had not allowed their home country to consider their case before the ECHR was asked to rule, the whole case was deemed inadmissible. I heard that one of the fathers of the applicants said it's like the young Portuguese team scored three amazing goals and they've all been declared offside. In the process, however, they showed their goal-scoring potential, and they learned a little more about how to get around the offside rule next time.

The Swiss case was the breakthrough, and the ruling is that Switzerland had failed to comply with its duties (‘positive obligations’) under the climate change convention (there are some details on the climate change/human rights relationship here).

My lay reading is that the critical difference was twofold: First, legal standing was achieved not by particular individuals but by a large civil society group: the ‘KlimaSeniorinnen’, represents a group interest comprised of Swiss women over 65. They launched the case nine years ago, calling for better protection of women's health in the context of climate change. Second, the case had already been tried nationally. The ECHR said the Swiss courts had not provided good reason not to take the case seriously, despite having the opportunity to do so. The court’s extended commentary on its decisions also effectively indicated what strategic climate litigation had to do to use human rights violations to hold governments to account.

So the story was not about the heroic French Mayor who saved his town from rising seas, nor six heroic Portuguese youths emerging from a baptism of fire, becoming the fabled David defeating the Goliath of European governance. It was the Swiss Senior Women who prevailed. Knowing it might have been otherwise, they were keen to acknowledge that any credit for their legal success should be shared with the other applicants. The details matter, especially in law, but so does the spirit of the international and intergenerational endeavour, and what follows for climate action over the following years and decades. There are a several takeaways from the verdict, based on what was shared with me by Sian Ferguson, who has followed the cases closely and was on site for the verdict.¹

Overall, then, this was by no means a failure, but still I am reminded of Samuel Beckett’s terms from his 1983 story “Worstward Ho,”: 

“Ever tried. Ever failed. No matter. Try again. Fail again. Fail better.”

The real story here is the trying, and that’s what’s touching: that people do what they can with what they have, where they are. One of the things we can try is the law, and now we have a clearer sense of how to fail so much better that we might even begin to succeed.

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I am personally encouraged by this recent development, just as I was encouraged by South Africa bringing Israel to the International Court of Justice for the crime of genocide, as discussed here.

I enjoy the legal theatre, and the reallife courtroom dramas, but it’s not just that. In both cases, I felt that our existing institutions might, after all, still be fit for purpose. And that feeling of fidelity to what we already have engenders hope, which, for many, is a positive and necessary thing.

But I have some mixed feelings too. I’ve been reading and watching a lot of material suggesting the very idea of hope might be misplaced, that modernity might be unsalvageable, and that the world as we have known it is surely ending. A few months ago I enjoyed At Work in the Ruins by Dougald Hine and I am currently enjoying Hospicing Modernity by Vanesssa Machado de Oliveira. I was also impressed by a conversation on The Stoa about the themes in Dougald’s book, with additional contributions from Bayo Akomolafe and Stephen Jenkinson; Dougald speaks about composting ideas including ‘hope’, and even ‘the future’, which, in their way, might be serving to reinforce oppressive and delusional systems of power.

In the context of this kind of thought - I am not quite sure what to call it - new realism, good ruinism, apocalyptarianism, dark mountainism, endism, new animism, ontological fugitivism, time-between-worldism, liminalism, interregnumacity…I don’t know! But in the context of the resolve of thoughtful people that modernity is inexorably ending and has to end, the idea of getting excited by a court case risks looking obtuse.

Certainly, an over-reliance on the law can be seen as a kind of technical bypassing. It is surely a mistake to seek technical solutions to adaptive challenges that are political and perhaps ultimately spiritual in nature. The legal system can also be seen as part of the architecture of modernity, and something that has to be dismantled rather than over-relied on and thereby further reinforced.

In my Open Letter to the Human Rights Movement, I hinted at this issue as follows:

Movements are fuzzy edged and I cannot know exactly who I am writing to. You may be an activist, a scholar, a lawyer, a journalist or the kind of protean team player who keeps the show on the road. You may be more or less political, more or less angry, and more or less patient. You may even be a judge. If your professional purpose is grounded in protecting human rights, the first thing I want to say is thank you. Thank you for fighting for the dignity, capability and moral equality of every human being. Thank you for remembering the forgotten, giving voice to the powerless, and striving to keep humanity awake to its better nature.

Through your emancipating passion, diligent testimony, campaigning zeal and legal prowess, you have operationalised the conscience of humankind.

Operationalised? Some say the movement has been colonised by technocrats. Some say that’s a sign of success, others that you’ve lost your way. Maybe you are too powerful now? Maybe you are not nearly powerful enough. Maybe it’s time you reimagined your power.

We should use the best tools available, even as we work to reimagine and refashion them. Roberto Unger’s remarks on the law (opening quote) are the heart of the matter for me. Whatever is going on at a macro scale, 21st-century humans have to do what they can, with what they have, where they are. That means using the law and seeking to reimagine what it can do (and idea with some philosophical depth, outlined below).

While the ECHR and ICJ cases show the legal innovation in action, there is also work underway on legal imagination.

For instance, I warmly recommend a short essay in Emergence magazine by César Rodríguez-Garavito on the growing interest in giving rights to nature, much of which arises from a shift in our underlying worldview towards complexity and entanglement, in which the boundary between human and non-human is increasingly blurred.

If biology has become ecology, if individuals are ecosystems, where does that leave human rights, which arose to protect individual Homo sapiens? What novelties and what surprises would this turn toward ecological thinking bring to human rights?

Of course, what just happened in Strasbourg was simply about human rights, rather than what César calls More-than-human rights, or MOTH rights, but it indicates a direction of travel towards humanity’s growing entanglement with the ecosystem. Machine learning is beginning to make bioacoustics recognisable as a kind of speech such that we can now ‘talk’ with other species who express their interests in ways we cannot disavow.

The highest profile example of the shift in legal imagination might be the Whanganui River in New Zealand being granted personhood.

But César indicates that there is a broader pattern afoot:

Since 1990, around five hundred initiatives recognizing rights of nature—including constitutional provisions, national or local laws, policy instruments, court decisions, or nonbinding declarations—have been pursued in forty-four countries and international venues like the United Nations. Ecuador is widely recognized as the headquarters of this global legal laboratory. In 2021, the Ecuadorian Constitutional Court handed down what is perhaps the most sophisticated ruling on the rights of nature in a case involving Los Cedros, a nearly intact cloud forest in northern Ecuador that sits at the juncture of the Andes and the Chocó region, one of the most biodiverse areas in the world. After hearing from scientists, government officials, environmentalists, artists-activists, and community leaders, the Court established that the government’s authorization of mining concessions in the forest violated not only local communities’ rights to water and a clean environment, but also the rights of the forest itself.

There are all kinds of objections to this extension of the law. Just as some find the idea of ‘natural capital’ horrific because it relegates nature to an instrument of capital, giving nature rights risks denaturing nature, making it feel, to some, less wild and free, and more like jurisdiction, the trappings of the human world.

There are risks here, but also opportunities, and in a compromised world of over eight billion people governend by dsyfunctional nation states, we may not have the luxury of one without the other.

The underlying perception that the difference between humans and other species is a matter of degree rather than kind, and that this might be reflected in law, is inspired and informed by indigenous thinking, where the connection between humans, their ecosystems and even forms of life we would consider to be ‘spirits’ tends to be more intuitive.

At the FORGE conference at NYU in November I was privileged to watch Patricia Gualinga, International Relations Director for the Kichwa First People of Sarayaku, describe her experience (in Spanish, live translated, but not yet on the recording) of protecting her community in Amazonian Ecuador. I remember thinking how darkly absurd the worldview of exploiting the land for profit must look from that vantage point.

I am reminded of Bayo Akomolafe’s celebrated essay Dear White People where he argues our challenge is fundamentally to remember who we are:

• You are already indigenous: There is no need to ‘become’ indigenous. This is the narrative of gaps and distances all over again. It has become popular to think of ourselves as separate from nature. We tell stories about a stylized period in time when we were fundamentally delinked from natural temporalities, from the way the world ‘truly’ is. As such, the ethical imperative of our times – you say – is to re-join nature and, in so doing, become indigenous again. But this narrative suggests that this really happened – and that you really are separate from the world and must return to it. Well, what if you never left? What if your bridges and rockets and buildings and roads and technology and GMOs are just another iteration of nature – albeit one which many now find troublesome? What if you are just as embedded in, and dependent on, land, water and air (even though your particular enactment of indigeneity is about exteriorizing that dependence)? What changes when the anxiety of ‘arriving home’ or ‘becoming indigenous’ is replaced with a studious slowness and a curiosity about where you are?

“A studious slowness and a curiosity about where we are.”

Where we are, it seems to me, is in a time where some things have to die so that others can be born. I am not sure modernity in general and our orientation towards the future in particular is dying in a time frame that makes sense to most people alive today. But even if we are called to hospice modernity, as Vanesssa Machado de Oliveira elegantly puts it, that process will take time, certainly decades. In the meantime, I can’t envisage any viable world without a functioning legal system, and any functional legal system needs an underlying jurisprudence that evolves in line with ecological and technological reckoning.

In the ECHR case, it now appears that state governments can be held to account for not doing ‘their bit’ to contend with transnational phenomena. I don’t know if that’s fair, but it may be necessary to challenge the complacency of nation states and the sclerosis of multi-national institutions. And I am not sure how I feel about human rights in general and extending rights to the more than human world, but again it feels necessary to shift inertia and change our perception of where we are.

I started with tears, and I want to end by speaking to the title of this post - the spirit of the law - so my closing query is relatively philosophical.

What kind of reality is law, and what follows for how we relate to it?

Perspectiva has a three-world perspective, reflected in our tagline as systems, souls, and society, arising from a diverse range of intellectual influences.² However, I think the theorist that helps us see what law is most clearly is Karl Popper because law is such a clear illustration fo what he calls World III as part of his three world hypothesis outlined in his Tanner Lectures in 1978 and which is well summarised here.

World I denotes all entities in their objective physical, chemical, and biological states, not just ‘matter’, but also forces, minerals etc. World II denotes our inner subjective states, the world of pain and pleasure, of hopes and dreams, thoughts and feelings. Popper also indicates that subconscious experience and dreams are part of World II, and so is animal consciousness. Popper’s innovation was to find a way to transcend the intractable debates about how world one and world two interact, given that they are just so very different, by indidcating a world that was objective but also recognisably human, imbued with a kind of sedimented subjectivity. Popper postulated World III, “the world of objective contents of thought, especially of scientific and poetic thoughts and of works of art” (1979, p. 106). World III is constituted by languages, mathematics, stories, hypothesies, paintings, dances, sculptures, and symphonies. These are all products of the mind, but are identical not the mind itself. And law and legal institutions are part of World III.

Popper calls World III ‘inter-objective’, which is a weird but important term. World III is in Perspectiva’s co-founder Tomas Bjorkman’s terms: The World we Create.

The tears that rolled down my cheek on the train are actually part of World I, but they arose from feelings in World II that were stimulated by something happening in World III where my fellow humans were busy trying to create a different kind of world.

The spirit of the law at its best is surely that, an attempt to create a better world. Law is, as my colleague Michael Bready puts it, Appollian rather than Dionysian, and it is about Logos rather than Mythos, so it does not always appeal to spiritually inclined people, and seems to be very much ‘of the world’. Yet in our attempts to create a better world the law assumes a quality of Eros, of the desire to make contact with reality. This is law not merely as societal tool, but also a kind of worldcraft. As Roberto Unger Puts it:

Throughout history there has been a bond between the legal profession and the search for an order inherent in social life.

That kind of World III work has a spiritual dimension, because it is about our conscious involvement with our evolving relationship with reality. This applies to ecological reckoning, but it is also relevant to how we adapt to technological changes, and it also relevant to any hope we have for peace in the remainder of the 21st century.

‘Getting real’ today means subjective recognition of our responsibility towards the inter-objective world.

Our response to that feeling can take many forms. Some respond through education, or art, or politics, and so it should be. But it’s clear that ‘getting real’ must also mean reimagining the law, and our relationship to it. Law may have become commercialised and technocratic, but the spirit of the law is ultimately a creative spirit, and it’s there to help us protect what we love.

• The very fact there was a hearing for a judgment is extraordinary. 

• That the hearing was livestreamed is unusual. 

• That the court judge took the time to highlight key legal points and explain the court's reasoning, made it appear like they were laying out a modus operandi for future cases.

• The judges seemed to have drawn on the evidence of the Duarto Agostinho (Portuguese) case to inform the judgement on the Swiss SeniorWomen case and provided judgements in that case that addressed some of the issues used in the Duarto Agostinho case will be helpful to others in Europe. 

• There is now a route for associations of people to bring domestic human rights cases in European countries when countries fail to meet their obligations to limit climate change.

• There could now be multiple simultaneous cases brought from different associations - in the UK context,  asthma sufferers, farmers, age concern, citizens UK, Girl Guides, Boy Scouts, where does it end?!…

• The court recognised the link between climate change impacts and human rights today and in the future and that climate change poses an existential threat to people.

• The impacts of one country's emissions effect people in other jurisdictions but there is currently no recourse through the human rights convention for cross-boundary challenge, which clearly shows the need for legal imagination and/or new legal norms and institutions.

• The Senior Swiss women and their counsel were kind to the youngsters and GLAN, declaring it a shared victory. Furthermore, apparently the Swiss Senior Women had a mythopoetic quality and were magnificent to behold, adorned in vibrant colours. 

• As the applicants appeared to meet the press (a great many of them), the press and court staff erupted into spontaneous applause for them. There was real admiration for what the applicants and GLAN have done. The press conference was cathartic for the six young Portuguese people who could see the potential they had created. There has been huge media coverage.

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2. A similar notion is also outlined in by Margaret Archer (Structure, agency, culture), Marvin Harris (Infrastructure, Superstructure, Social structure), Jurgen Habermas(technical, interpretative, emancipatory knowledge interests) Felix Guattari (Environment, Mind, Society) and in practice by Dave Snowden (Assemblages, Agency, Affordances) and Indra Adnan (I, We, World) amongst others. Even Ken Wilber’s four quadrant map of reality can be thought of as three main aspects of reality because the distinction between objective-interior and objective-exterior, between the ‘it’ and the ‘its’, can be combined with some loss of granular coherence, but without significant loss of intelligibility or explanatory power.