'Constitutionalizing in the Anthropocene' (Tilburg Law School Research Paper) by Floor M. Fleurke, Michael C. Leach, Hans Lindahl, Phillip Paiement, Marie-Catherine Petersmann and Han Somsen comments
The Anthropocene thesis, in its rejection of both the modernist separation between ‘humans’ and ‘nonhumans’ as well as its treatment of ‘humans’ as a singular global geophysical force, presents fundamental challenges to constitutional theory and practice. First, in terms of conceptual and foundational transformations, the Anthropocene provokes the reconceptualization of legal relations as never limited to human concerns, but always and already part of more-than-human collectives, in which both humans and nonhumans act with co-agency, in recognition of shared vulnerabilities and in relations premised on care. This reconceptualizing demands a new understanding of representational practices that could constitutionalize more-than-human relations as political and legal collectives. Second, emergent technologies such as genetic and climate engineering introduce fundamental questions about regulatory modalities available in the Anthropocene, and the role law plays in this regard. Such technologies have given rise to the possibility of ‘ruling by design’, by technologically mediating ‘natural’ forces or Earth system processes to achieve pre-established regulatory goals. This possibility raises critical concerns about the remaining role for law in legitimizing and enabling such developments. Finally, the temporal dimensions of the Anthropocene thesis cast a critical light on law’s potential for driving radical transformations in (un)governance. In imagining future legal institutions capable of manifesting more-than-human constitutionalism, it is necessary to excavate the historical role that foundational legal principles and institutions – such as sovereignty and personhood – have had in facilitating exploitative relations within and beyond humans.
