Diagnosis: Unnatural Law and the deep codes of misalignment that mean good work can have bad consequences
I have been struggling (as regular readers will know) with the question of how to do good work as a lawyer, when the outcomes flowing from that work will lead to foreseeable harms arising.
Year on year now, we are seeing this fatal formula play out:
↑Ev + ↑Ef = ↑Em
where:
↑Ev = increasing evidence of climate breakdown and ecosystem collapse happening
↑Ef = increasing efforts to encourage or require reporting of climate and nature related impacts, transition planning and science based commitments
↑Em = increasing GHG emissions – i.e. the opposite of what is required
Somewhere, evidently, there is a disconnect and I think it is in the unspoken assumptions on which our profession (and also the economy in which we practice) operates.
That disconnect, at its most fundamental level, is reflected in these words from Gregory Bateson: “The major problems in the world are the result of the difference between how nature works and the way people think”.
The way nature works is as one living ecosystem comprised of multiple smaller ecosystems, all inherently connected to one another and interdependent on one another. The way we think, mostly, is an individualistic, atomised perspective.
Our professional duty requires us to practice law by acting in the best interests of each of our clients. There is a logic to this in that it is reasonable for any one client to be confident that the person or organisation they are paying to represent them is putting their interests first and is not compromised by conflicts or other agendas. However, if this is interpreted by all lawyers in all cases through the lens purely of ‘getting the best deal’ in relation to what is immediately before them, with no consideration of any wider systemic impacts, that amounts to a culture wilfully operating at odds with the way the natural world behaves. This may well be a contributory factor to that fatal formula playing out.
Another deep assumption is that more (aka growth) is always good. The business model of a law firm is predicated on this, requiring increased fee income each year so that more partners can be paid more money. To do that, they need to attract clients happy to pay fees, who are in turn generating revenues to afford them. Success is measured by profits per partner, achieved by helping clients be more profitable also. The beast must be perpetually fed.
In contrast, nature is about equilibrium and harmony: preserving the optimal conditions for life. When something grows too much (whether a body losing functionality, or a population becoming too large to feed itself), they become vulnerable. The ecosystem they are part of can no longer support them. Humanity is approaching that point on a planetary scale, having destructive impacts the earth cannot replenish. Again, the unspoken assumption (here that growth will always be our friend) both contributes to the fatal formula and threatens our own and our clients’ longer term interests.
The most fundamental disconnect of all lies in the assumption that we are not a part of nature, but are set apart from (and above) nature and it exists for us to exploit as we choose. This is at odds with the reality of our interdependence on nature, being demonstrated constantly, and increasingly vividly, both by the power of nature evident in the natural disasters we are witnessing and the growing threats posed by loss of pollinators, fertile soils, fresh water sources and carbon sinks. Yet the law barely acknowledges nature. The human concept of a corporation and the human invention of a ship each have greater standing in the law than natural phenomena that are far more important to our wellbeing and survival.
Intentionally addressing this issue is potentially the single most powerful starting point to engaging effectively with the polycrisis we are in. An emphasis on achieving a healthy, generative relationship with nature, where finance and law recognise the value it provides in how we use and care for it, would encourage the behaviours necessary to correct the fatal formula and shift us to a way of creating a society, economy and legal practice fit for our times.
We lawyers cannot do it alone. We need clients who see the value of this and want us to help them realise it and we need a wider movement vocally supporting the shift in perception of our relationship with nature. But we can be proactive in bringing this about.
Please go to the Antidote post for more on what this might look like.