Conceiving of Nature in Modern Law: The Influence of Traditions

In recent years, lawmakers, legal scholars, and courts have been demonstrating creativity in adapting the law to environmental issues. Unfortunately, this endeavor presents certain challenges. Among these is the fact that our legal thinking is steeped in an ancient, strongly anthropocentric tradition, according to which nature can be exploited by humans without limit. This is a highly influential—though often implicit—tradition that must therefore be brought to light in order to better assess its potential and limitations.

[This presentation is based on a forthcoming article by Prof. Dario Mantovani, a professor at the Collège de France and holder of the Chair in Law, Culture and Society in Ancient Rome . As part of the “Avenir Commun Durable” initiative, he organized a symposium on May 10, 2022, titled: “ The Future: How Long Must We Wait? ”]

The climate crisis is profoundly disrupting human societies and the way they function. The law, moreover, is not immune to this dynamic. Legal experts and activists are attempting to use existing legal remedies to take legal action against state actors, civil society organizations, or corporations that fail to meet their obligations in the global fight against climate change. But using existing law to achieve new objectives—and bending existing rules to align with values that the legislature did not originally envision—requires a great deal of ingenuity. We are therefore likely also facing a “legal transition.” In this effort to reinvent the legal framework, support and concepts are also being sought in tradition and in the law of the past, which is believed to help reshape current legal categories. In an article to be published in the proceedings of the symposium “Reconciling Climate Action and Social Justice” by Les Presses des Mines, Professor Dario Mantovani, holder of the Chair of Law, Culture and Society in Ancient Rome at the Collège de France, highlights the limitations of this approach. Western law—which has been largely adopted by international law as well—is an heir to Greek thought and Roman law, both of which are deeply anthropocentric. Overly liberal reuse of concepts from the ancient legal corpus—such as the concept of “commons”—amounts, without necessarily realizing it, to perpetuating a worldview in which it is legitimate and “natural” for humans to exploit the world around them without limits.

Ancient law is in fact based on a view of nature that differs from the one environmentalists would like to promote today. As Professor Dario Mantovani explains, for the ancients, “nature […] is an innate force that guides and accompanies the development of all beings in the sensible world. As a principle of motion and rest, it is almost another name for the soul. […] It is precisely this type of nature that Roman jurists refer to first and foremost when they speak of natura and natural law .” It is true that Roman jurists—in texts that have had a considerable influence on modern thought— “consider that nature endows all living beings, human and non-human, with a kind of instinct that drives them, for example, to care for their offspring.” But this is only the first step: “ for while humans may be likened to other animals in certain primordial impulses, they are distinguished from them—as the Ancients say—because they possess reason (which should guide them, alone among living beings, toward virtue).” […] This is the very legal divide between human and non-human, the root of humanity’s separation from the ecosystem, its detachment from it to make itself the center of the world. It follows that humans can freely and lawfully exploit that which is not human .”

The view of ancient jurists draws a clear distinction between what falls under “nature” [that which does not pertain to the distinctive traits of the human species, nor to human knowledge and know-how] and what falls under “culture.” Living beings and the environment are thus structured in a pyramidal form, with human beings at the apex. This hierarchy thereby legitimizes humanity’s absolute control over its surroundings. The only thing that could limit human action would then be the harm caused to other humans—not through environmental degradation, but in the race to exploit the environment. Once again, humans return to the center of legal discourse; ultimately, the environment is merely one factor among many in defining their position in society and in their relationships with other human beings.

Thus, in ancient legal thought, there are no rights attributed to “nature” understood as natural objects (animals, rivers, etc.), but rather a “natural law” that establishes the legitimacy of the human social order. It therefore never seeks to consider non-human things (living or inanimate) as subjects of law on the same footing as humans, as certain scholars and legal systems would like today, from Colombia to New Zealand. Moreover, this is an approach that aims to give natural objects a voice in the courts but which, according to Professor Mantovani, ultimately cannot avoid prioritizing the interests of populations—and thus of humans.

Relying on the ancient legal corpus to attempt to move beyond the current dichotomy in Western societies between “nature” and “culture” therefore risks quickly proving illusory. Nevertheless, exploring the roots of our legal history makes sense. As Professor Dario Mantovani states in the conclusion of his article, “if ancient legal thought can still guide us through the ongoing transition, it is by revealing to us the implicit values that tradition has embedded in our contemporary thinking .” This allows us to better understand them and also to maintain a discerning perspective on the efforts required to move beyond them.