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Interconnected Law: a paradigm shift in legal thinking

Our legal system lies at the root of many of our problems. It must be transformed as part of the solution.

Alex May
27 November 2020
The UK Supreme Court in Parliament Square, Westminster.
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Yui Mok/PA Wire/PA Images

Our world abounds with injustices, and the struggle to challenge and transform these has only become more urgent with the multiple crises facing Western society. But in our efforts to realise better worlds, the role of law has been relatively unexamined. While particular laws are often focused on as rules or processes that need changing, and many social movements invoke arguments based on ‘human’ rights and seek social transformation through law, the bigger picture of law and the legal system has been overlooked.

Despite operating in the background, law is pervasive. It influences almost the totality of human activities: family and interpersonal relationships, employment conditions, accessing housing, the relationship with our environment, and much more. Law is generally seen as somewhat neutral – a technical part of the state or a set of rules and norms controlled by those with political power. But it also a social system which itself needs to be transformed as part of an emancipatory politics. While law is not the magic solution to changing everything, it must be a necessary part of a transformative and political project.

Interconnected Law

First, some background: I started thinking about law’s role in society, its political role and what a just legal system would look like during my undergraduate degree. Some years and a fair amount of reading and thinking later, these thoughts have developed into what I am calling ‘Interconnected Law’ – an approach to law based on human interconnection.

This ‘interconnected’ approach to law builds on and brings together existing ideas about law, as well as personal experiences. It seeks to bring together two areas of scholarship – relational approaches to law and ecological approaches to law – into one overarching approach. This new approach is a framework which can link together ideas in this ‘interconnected’ paradigm in other domains, such as transformative justice, ethics of care approaches and systems theory. Interconnected Law is still in the early stages of development, with a general conceptualisation and direction of travel but far from a detailed blueprint of how legal systems should be.

The core idea is that humans are interconnected with one another, and that our law should both recognise this fact and seek to improve the relations which make up this interconnection. Law has a significant role in this web of relationships we live in, and it should work to weave and reweave this web to be more just, harmonious and sustainable.

In most Western countries, our legal systems are based on an individualistic model of society, much like our economics, culture and politics. Yet the individualist model is flawed: humans do not live as tiny islands but instead in a dense network of relationships. In this way, Interconnected Law is a critique of the liberal individualism which our law, along with our politics, economics and society, is based on. This liberal individualistic approach sees individuals, abstracted from their social context and humans separated from the rest of Nature.

Modern law’s conceptual development was influenced by understandings of the natural world as a collection of atoms and molecules, as legal theorists in the enlightenment drew on ideas from the scientific revolution. Enlightenment science saw the material world as being made up of lots of tiny building blocks, the world as a machine, which political and legal theorists followed by conceptualising society as a collection of individual people. In this paradigm, which has not changed significantly in the current era of neoliberalism, law governs this collection of individuals. Legal systems focus on individual (and corporate) rights which demand things from other individuals. Law seeks to do justice on an individual basis, and it sees its goal as protecting or creating freedom for individuals, primarily the ‘liberty’ type of freedom.

This individualistic approach misses half of the picture: that individual humans live in a dense network of relationships. We are interconnected, not atomised. We live not on metaphorical islands, interacting with each other occasionally, but in an interwoven and often messy social fabric. Law should be based on this interconnection instead of on individualism, and our legal system should work to weave and reweave this social fabric so that the network of relations we live in are more just and more harmonious – a web that realises individual and collective freedom.

Interconnected Law also means recognising our interconnection and interdependence with the rest of the natural world, broadening law’s scope to our ecological and spatial relations as well as the various inter-human relations we live in. Currently, humans plunder and dominate Nature, notwithstanding that this is deeply harmful to us by undermining the ecological conditions we need to live, threatening our survival. Our legal system is part of this problem, and therefore it must also be part of the solution.

This means including Nature in our legal system by giving it legal rights, and using law to transform the relationships between humans and Nature to make them harmonious and sustainable. These ideas, drawn from Earth Jurisprudence, are a key part of Interconnected Law in recognising our interconnection with the world around us and the rest of Nature.

Interconnected Law as part of a paradigm shift

Recognising that we live in a dense, interconnected network, instead of as a collection of individuals, should change how we think about law. Pointing to the individualistic liberal conception and saying this is not who we are has huge effects for how we should understand law, how legal systems should work, and what we should use law for.

The relationships that are meant by this are not just social relationships, in the sense of our intimate and familial relationships and friendships. They mean any relation between people, whether individually or collectively, including social systems. This includes economic relationships, such as employment, customers and consumers, and advertising. It also includes political relationships, spatial relationships, relationships around things, and relationships with our environment and the rest of Nature.

In many other domains, the mechanistic enlightenment view of the world as a machine has been surpassed with better understandings. This new paradigm is conceptualised by Fritjof Capra and Pier Luigi Luisi as the systems view of life, a holistic approach which sees systems and networks instead of just components. Mechanistic physics has been updated to quantum physics. In biology, we now see organic systems in which cells, organisms and beings are both a unit in themselves and part of a whole. In the natural world more broadly, we understand ecosystems and planetary systems. A forest is not just a collection of trees: trees relate to and communicate with one another, providing habitats for animals and with cooperation and symbiotic relationships with insects, animals and fungi all providing the shared conditions they need to live in.

Law is in the early stages of such a paradigm shift, and Interconnected Law hopes to be part of this, aspiring to do what doughnut economics has done to economics.

The relational approach to law

When we think about law, we often focus on the sharp end of coercion and violence, the way that law designates things as illegal and creates obligations which are enforced with physical force, threats of imprisonment and financial sanctions. In many cases, the possibility or threat of such a sanction, via lawsuits or prosecution, is enough for people to comply. Yet this side of law is only part of the picture in western liberal democracies, because in many situations people follow the law because they think it is the right thing to do. This is the softer side of law, when people comply and accept law as their guide because they think it right to do so.

Law is a social institution of power, but it is more than just top-down state power or a governance system of the ruling class. It has a significant role in constituting society, giving us frameworks to interpret ourselves and the world around us and structuring and influencing relationships in society. Our current law and legal systems construct us as individuals with rights, which reproduces our understanding of ourselves as seperate from others and the society we live in and gives us an approach to freedom which is based on entitlement and which does not come with general responsibilities. We see freedom as something we want for our self, instead of something we create together.

This is inherent to liberal legal systems, but it is not inherent to law. Law can be part of reproducing the neoliberal vision of individuals in society who only deserve things if they undertake productive economic activity, defined as someone who does something profitable or beneficial for someone else that they are willing and able to pay for. Alternatively, law could be used in a radically different way to reproduce a more collective vision of society, such as onein which everyone is entitled to various guarantees from the state which are contributed to by everyone through compulsory taxation. These ideas are not just legal ones, but law is certainly a necessary part of (re)constituting how we see ourselves and each other.

Law is a social institution of power

In the relational understanding of law, the argument is not that law should do something about the network of relationships that make up our society: it is that it already does. Law is pervasive, part of the fabric of every aspect of human activity. Though we often name politics, society, culture, economics and even art as separate domains, these are all interwoven with each other, and law is part of this interwoven jumble of human activity.

Our legal systems influence and structure many of our relationships, whether through the gentle reproduction of existing patterns of relations or firm enforcement of particular relational structures.

In each of these, law can foster positive relationships which empower people, or it can enable abusive and destructive relationships. Understanding law in this way, we can see that law’s goal should be to facilitate just and harmonious relationships and conditions in society, and to transform exploitative and abusive relations into better ones.

The way that law affects our relationships is most obvious in the ones most commonly associated with the word ‘relationship’. The legal institution of marriage does much to reproduce a certain type of social relationship, and the way this has changed over time legally, such as whether women could own property or vote and the recent creation of civil partnerships, is part of changing social relations over time. Our current law has little to say directly about social relationships which fall short of these, although it may often be involved if there is joint ownership of a house or a child involved.

Law structures all sorts of relationships beyond these intimate ones. Criminal law affects many aspects of how we can and should interact with one another, such as by trying to protect people from being attacked by others, stopping people drinking in the streets (unless as part of a particular establishment), or even in some instances banning certain types of gathering. Whether an activity is designated as ‘criminal’ has huge effects for how something is perceived socially, which can deter people from engaging in dangerous activities and also create situations in which certain communities are heavily policed. Access to space is also mediated by law, affected who can access and control parts of the city and who particular spaces are for.

The coronavirus regulations come to mind as an excellent example of how law affects social relationships. The regulations have changed how we relate to one another, who and how many people we can meet with in different types of location, and which sorts of activities are permitted. Yet this is not exceptional use of law, only one which is broader in scope, more intense in effect and at a greater pace of change, which makes them stand out compared to the way law is typically integrated into our way of life. The legal response to COVID-19 has been an epitome of the individualistic response, by criminalising people who do not follow the rules but not changing their relational context. The need for more systemic change, such as financial support, functioning sick pay, workplace rights or proper health and safety enforcement, has lagged behind this individual criminalisation and fallen short.

Having a job is a significant and necessary part of most people’s lives, and law does much to mediate employment relations. Law sets a foundation for how people must be treated, such as minimum wages and protections against discrimination, but in other parts of employment relations its absence leaves employment conditions down to social and economic power dynamics. Law is absent on whether remuneration for work should be just, or whether people should be treated with respect. A lack of union rights, for example, helps perpetuate unequal power dynamics in workplaces, whereas stronger union rights create a legal structure that can be used to empower workers.

We can see how law fosters conditions in which exploitation is easily possible in the intersection of immigration law and employment law. When someone’s visa status links a person’s right to be in the country with a particular job that ‘sponsors’ their visa, or when it is made a criminal offence for certain categories of immigration status to work, those who employ them know that exploitation and abuse is unlikely to be reported to authorities, giving employers a near carte blanche regarding these workers.

Even in the mythical ‘free market’, law and the state work to make economic activity viable. It is law that creates the legal form of a ‘corporation’, creating entities separate from the individuals involved in them, and law which enforces contracts and protects private property. Within ‘the market’, law is involved with relationships that businesses have with consumers and also has a role in whether ecosystems can be destroyed for the extraction of ‘natural resources’ or to build a factory.

This relational aspect of law is perhaps implicitly understood when people seek to use law as a means of bringing about social change. Yet this ‘relational’ understanding of law is rarely explicitly recognised or understood. When I first saw this relational approach to law described during my master’s degree, it was revelatory.

What might Interconnected Law look like?

Interconnected Law is still in its early stage, existing primarily as a conceptualisation of law’s role in our society and how it should be instead. While it is not a detailed blueprint, it will be helpful to share a few sketches of how things might be in a legal system based on this paradigm.

The core of the interconnected approach to law is seeing the interconnected web of relations that we live in. Instead of focusing on abstracted individuals, law should focus on the relationships that are the context and conditions within which individuals act. The aim is not to abolish individual rights, but to contextualise them in this relational web and have that be the focus instead.

For any particular domain, this means understanding the current conditions and relations, mapping out how they should be transformed to realise just, balanced and harmonious relationships, and finding how law can be part of this. These transformations will usually also require changes to political power, social relations and cultural norms, instead of a simple legal change, but we should look at law as both a catalyst for changing this and something which itself must be changed as part of this shift.

In general, law’s goal should be looking to improve the web of relations we live in to realise whatever is trying to be realised, instead of trying to achieve this via individual rights. When we want to realise freedom, for example, we should be looking to create and cultivate relations that empower people and foster freedom. Freedom should be talked about in terms of conditions and relations of freedom, within which individual people are able to be free, instead of trying to crudely manifest freedom in an individualistic way. In some ways, this is the legal parallel of focusing on public infrastructure instead of private luxuries concentrated in the hands of a minority.

Similarly, sustainability is a relational value: when we talk about ecological sustainability, that is a relational question between actors and Nature, whether it’s about a particular ecosystem or a planetary system. Sustainability must be addressed at all levels: individuals, corporations, geographic areas, communities, nations and economic systems. Looking only at individual activity without a systemic approach is doomed to fail, as is only setting top-down ‘legally binding’ targets and duties on nation states or governments.

Typically, liberal rights give power without any responsibility: by default there is freedom unless there is a legal limit. Property rights, for example, give an owner total control over property – whether that is a house, a forest or a large amount of money – without any corresponding obligation or responsibility. As well as the legal power to do as they wish, this means that the idea that a person should have total control over something without any social or ecological responsibility is reinforced and reproduced.

liberal rights give power without any responsibility

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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