Re-storying Laws for the Anthropocene: Rights, Obligations and an Ethics of Encounter
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Re‑storying Laws for the Anthropocene: Rights, Obligations and an Ethics of Encounter Kathleen Birrell1 · Daniel Matthews2 Accepted: 18 August 2020 © Springer Nature B.V. 2020
Abstract The Anthropocene prompts renewed critical reflection on some of the central tenets of modern thought including narratives of ‘progress’, the privileging of the nation state, and the universalist rendering of the human. In this context it is striking that ‘rights’, a quintessentially modern mode of articulating normativity, are often presumed to have an enduring relevance in the contemporary moment, exemplified in renewed recourse to rights in their attribution to parts of the nonhuman world. Our intervention contemplates ways in which the apparent disorientations of the Anthropocene might allow for a generative reorientation of some of these presuppositions. We critically consider the institutional and discursive limitations of rights and the ambivalence of rights language, and argue that the monism that rights so often implies limits the capacity to foster generative encounters between Indigenous and non-Indigenous legal traditions. We develop a critical discourse of obligation, understood here to both precede and exceed the rights-duty correlate so central to modern law. An attentiveness to the priority of obligation, we argue, might allow us to foreground an ethics of encounter between traditions, to examine the limits of modernity’s legal and political imaginary, and to pursue a ‘radical re-storying’ of laws for the Anthropocene. Keywords Anthropocene · Climate change · Ethics of encounter · Indigenous jurisprudence · Legal subjectivity · Obligations · Rights of nature The Anthropocene thesis, which contends that human agency manifest in consumption, production and habitation practices has fundamentally ruptured planetary * Kathleen Birrell [email protected] Daniel Matthews [email protected] 1
Melbourne Law School, University of Melbourne, Melbourne, VIC, Australia
2
Faculty of Law, University of Hong Kong, Hong Kong, Hong Kong
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K. Birrell, D. Matthews
history, evokes temporal and spatial scales that are routinely considered irrelevant for scholarship in law, the social sciences and humanities. This prompts renewed critical reflection on several of the modernist tenets that inform this scholarship: the linearity of ‘progress’ narratives, the privileging of the sovereign nation state, and the universalist rendering of the human. The Anthropocene invites contemplation of a world in which the human, or anthropos, is simultaneously aggrandised as a planetary force, and humbled, in that human agency must now be understood as being entangled within a range of nonhuman ecological and geological forces. In this context, ‘rights’—a quintessentially modern normative articulation—are nonetheless presumed to have an enduring relevance. Despite sustained critique of the neoliberal and neocolonial biases of rights regimes, recourse to rights has been renewed in their attribution to parts of the nonhuman wo
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