Informal regulations defining nature, natural and organic have proliferated across diverse fields of law from patents to agriculture, from taxation to gemstones. The unwritten jurisprudence of defining nature is primarily a story of the struggle to isolate mankind’s manipulations and interventions, creating a man-nature dichotomy that frustrates more than it explicates. This failure to define nature continues with the Supreme Court’s recent Myriad decision, which struggles to define the law of nature exception to patentability, highlighting the challenge of measuring levels of human intervention and manipulation. Our dichotomous definitions do not generate neat, binary answers, but rather complicated scales of human agency. This article seeks to generate a history of the jurisprudence of defining nature. Such a comparative history naturally elucidates the challenges of predictable outcomes when an ostensibly binary system is effectively implemented as a scale. The evidence of inconsistency and confusion provokes an exploration of the literature of history, sociology, and philosophy on the cultural history and pitfalls of defining nature. The article concludes by exploring how the language of property might more efficiently and reliably allow us to navigate the need to legally distinguish manipulations and interventions to protect both public property and private investments not only in patents, but also in consumer products.
28 April 2015
'The Jurisprudence of Nature' by Jill Fraley in (2015) 63 Catholic University Law Review comments