Lessons of Customary Law for a Geocentric Legal Transformation

Hegel famously called institutions the ‚second nature’. Indeed, in modern societies, our relationship with the ‘first nature’ is deeply shaped by institutions that govern our interactions. In fact, what is ‘nature’ is not given, but is an institutional construct itself. Therefore, if we want to heal our broken relationship with the biosphere, we must change our institutions. The key is the law. This receives increasing attention. One important contribution is Sarah Vanuxem’s book ‘La propriété de la Terre’ which analyzes the transition from French customary law to the law of the French revolution and the Code Civil and asks the question, which inspiration we can get from reconsidering customary law in the light of our current ecological dilemmas? This does not mean to revive customary law, but to radically rethink our current legal systems.

Customary laws all over the world share some features, such as being bound to local communities, being concerned about just notions of livelihood, and regulating conflicts over valuable resources, with land as a key resource. Customary law often is only orally transmitted across generations, that is, it is a form of practice. One important topic is the question of ownership. The new legal systems emerging with economic modernization centred on a notion of absolute and exclusive property mainly assigned to individual owners, with complex arrangements for various forms of co-ownership, and they implemented a strict distinction between the object and the subject of ownership. In addition, and most importantly in terms of ‘second nature’, the new legal regimes were based on texts and thereby created new objects of ownership, that is the legal titles, hence, indeed, an institutional ‘layer’ above the original objects that allow for new forms of transactions independent from operations directly involving the former. This is the modern notion of ‘property’. With regard to ‘nature’, this implied that all things ‘natural’ were conceived as objects in larger assemblages that can be legally partitioned into them as parts. This is also true for land. In principle, the Earth is seen as being divisible into parcels of land to which property titles are assigned which then can be exchanged freely within the human domain, the ‘second nature’.

Land has been a difficult issue for economists for long, since land is associated with the land rent which creates forms of income that are independent from individual productive contributions. Therefore, critical voices (even among economists, such as thelate eminent neoclassical scholar Hirofumi Uzawa) have always argued that land should be either publicly owned or that the rent must be subject to a tax that would accrue to the government as representing the public, and used in the public interest. Such systems have been rarely implemented. In the current context, customary law offers some concepts that free us from the straitjacket of opposing ‘private’ and ‘public’ which is itself a mirror of the revolutionary legal regimes of modernity.

The first is that customary law distinguishes between the fruits of the land and the land itself, a distinction which anticipates contemporary notions of ‘ecosystem services’. The land as such cannot be directly appropriated, only certain fruits. The nature of the fruits determines the way how the rights to enjoy the fruits are assigned: enjoyment, though, is not ‘property’ but an entitlement (a ‘right’, not a ‘property right’). The archetypical example is the rules governing forests, which are a rich source of various fruits. Even if a forest would be formally ‘owned’ by someone, customary law would always protect the rights of the local community to enjoy fruits of the forest. This is mostly referred to as ‘commons’, a term which is today seen in the light of the revolutionary law, thus suggesting a distinction within the modern system. This blocks the view on the radically different conception of the relationship between individuals, communities and land prevailing in the worldview of customary law.

In relation to the fruits of land, customary laws often maintain that owning land implies the responsibility to take care of it, mainly referring to tilling the land in case of agricultural uses. This is different from early modern ideas that there is wilderness that is appropriated by human labour, since it frames land use within a historically given community that relates to land. In this community, enjoying recognition of ownership depends on spending effort in maintaining the land. In other words, using the fruits of land is matched with contributing to the community that stays in a relationship to the land.

Customary law recognizes two fundamental facts about land. The first, reflected in the fruits, is its complex nature which allows for developing a rich array of relationships with the land: The land is a place we dwell on, and not just an object that we possess. Dwelling implies a relationship by which we also adapt to the land as a place of livelihood. This notion is embodied in the sense of place that is deeply imbued in customary law. The other is that land is continuously changing its state, as being a place where a living ecosystem evolves through time. Indeed, only the forceful construction of human artefacts can suppress this living essence of land. Hence, customary laws often recognize property of artificial objects, while offering much more complex approaches to land as ecosystem, as in the example of forests.

These features of customary law are highly suggestive for envisaging a radical geocentric transformation of our modern legal systems. Vanuxem speaks of rethinking ownership in general as a relationship to a ‘place’, and not an object. For example, many of us feel attached to things in our homes, since these evoke memories, are elements of our habits, and so on. In the context of land, this means that land, as a legal abstraction of the ecosystems that are ‘there’, is no object either since we are just one member of these ecosystems: The subject/object boundary evaporates. That implies that we must strictly distinguish between uses of ecosystem services and the communal nature of the ecosystem. This implies that our relationship is essentially local, and that we must arrange ourselves within this locality.

The locality is the place where the community dwells. This community consists of all owners, non-human and human, who enjoy the fruits. This extends customary law conceptions of community beyond the human domain, but many indigenous communities also recognized this. Recognizing non-humans as owners has far-reaching implications, as we either must arrange ourselves with them in shared management of the ecosystem or enter into a reciprocal relationship. The former would legally define the place of the ecosystem as a commons, the latter would imply that human uses must always include compensation of non-humans if their rights are being encroached. Just to accentuate this: ‘Compensation’ at other places would not fit that criterion (as promoted in ‘green deals’ today).

Modern legal systems gradually move into the direction of such customary law-inspired ideas, as Vanuxem points out, such as the increasing recognition of personhood of animals, and of the rights of entire ecosystems, such as rivers. The first implies that there are rights of co-habitants of the local ecosystems we dwell in, and which we must recognize legally. The second implies that there is a ‘public interest’ which is not defined in human terms but framed in the larger place of the ecosystem. This implies that we can restore a ‘first nature’ partitioning of the land: As in the case of rivers, we would reconstruct members of federations of local and regional ecosystems which are the body politic of a truly ‘natural law’, the Law of the Earth.

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