Earth System Law for the Anthropocene

Abstract

Law has failed to address the ever-deepening socio-ecological crisis of the Anthropocene. In the light of, and as a response to, law’s failures in this respect, this paper argues in support of developing a new legal paradigm for the Anthropocene epoch called Earth system law. It does so first by briefly describing the Anthropocene trope and the extent and dimensions of its socio-ecological crisis. The paper then specifically focuses on international environmental law as an example of how and why law has become incapable of, and inappropriate for, addressing this crisis, and for being unable to respond to the Anthropocene’s regulatory demands. By drawing on three Earth system-related regulatory implications of the Anthropocene trope (i.e., inclusivity, interdependencies and complexity), the final part of the paper makes out a case in support of reforming law and creating a new Earth system oriented legal paradigm that is fit for purpose in the Anthropocene epoch.

1. Introduction

The Anthropocene has become a popular [1], but at times divisive [2,3], scientific term since it was first introduced by Stoermer and Crutzen almost 20 years ago [4]. Although initially intended to designate a new geological epoch, by acting as a trope or epistemological lens, the Anthropocene is now variously applied in several scientific disciplines in search of new ways to better understand the place of humans in, and our impact on, other elements of the Earth system, of which we are an integral part [5]:

The Anthropocene ranks among the most ambitious scientific programmes of the past 15 or 20 years … and it is tempting to treat it as a new metanarrative for the twenty-first century. It is effectively an all-encompassing framework that seeks to make sense of the ‘earth-system’ as a whole: it delineates the planet’s natural history and turns it into a new geological period, it specifies the particular influence of human action on the emergence of that epoch, and it accounts for the relationships between the ‘scientific’ and the ‘political’ implications of these transformations.

[6] (p. 45)

By linking the “scientific” and “political” implications of Earth system transformations, and to the extent that it symbolizes a “domain of urgency” [7] that demands a drastic and urgent change in the way humans interact with other Earth system elements, the Anthropocene trope essentially upends many traditional assumptions about the purpose, functions, design, and effectiveness of our human (or social) regulatory systems, including laws “that are a past cause, present consequence, and future adaptation of our ecosystem changes” [8] (p. 5).

As a result, an important achievement of the Anthropocene trope and its surrounding discourse is the realization that “[T]o develop a world-wide accepted strategy leading to sustainability of ecosystems against human induced stresses will be one of the great future tasks of mankind” [4] (p. 18). Law inevitably plays, and will continue to play, a critically important part in the global regulatory effort that must pursue sustainability (elsewhere described as “global environmental governance”) [9]. This task will in all likelihood specifically fall to international environmental law. Yet, recent studies suggest that international environmental law has failed to address the ever-deepening socio-ecological crisis of the Anthropocene, and that it even might have contributed to causing and exacerbating it (e.g., references [10,11,12]).

If we accept that “[O]ne of the key intellectual challenges of the Anthropocene epoch is to reimagine how humans make connections between planetary and everyday life in ethical, sustainable, and ecologically just ways” [13] (p. 440); then such a reimagination will also have to be extended to law generally, and to international environmental law specifically, if it were to retain any legitimacy and use in future. It is therefore my hypothesis for the purpose of this paper that a new, reimagined legal paradigm is urgently needed to address the myriad complex regulatory challenges presented by the Anthropocene trope and its socio-ecological crisis. It is further my hypothesis that such a reimagination must occur alongside an Earth system approach. The Anthropocene trope foregrounds an Earth system approach, which, for its part, derives from Earth system science [14]. This approach has already guided reforms in other social science domains such as political science, consequently leading to the development of a new global environmental governance paradigm called Earth system governance [15]. In the same way that the Earth system approach “transformed” global environmental governance into Earth system governance, as it were, it could quite possibly also inform the future transformation of (international environmental) law into a new Earth system-oriented global juridical paradigm called Earth system law.

Building on a recent analysis [16], and in light of the foregoing, this paper offers suggestions that could guide the future elaboration of a new Earth system law paradigm for the Anthropocene. It does so first by describing the Anthropocene and the extent and dimensions of its socio-ecological crisis. The paper then specifically focuses on international environmental law as an example of how law has become incapable of and inappropriate for addressing this crisis and for responding to the Anthropocene’s regulatory demands. The final part of the paper reflects on how some of the Anthropocene’s Earth system regulatory demands could guide the development of a new Earth system law juridical paradigm. While there are other possible approaches, this paper focuses on three considerations that are inherent to an Earth system approach (i.e., inclusivity, interdependencies and complexity) and discusses what this could mean for law in regulatory terms. In doing so, while the discussion stops short of offering any thoroughgoing account of Earth system law, it does attempt to initiate a debate on some aspects of the law that would urgently need to change if it intends to remain relevant in the face of the Anthropocene’s deepening socio-ecological crisis.

2. The Anthropocene Trope

Earth system scientists offer convincing, but not uncontested (e.g., references [17,18]), evidence that shows Earth has left the relative stable and harmonious Holocene epoch, while entering an unstable and erratic state that is becoming less conducive to sustaining life [19]. We have arguably entered the Anthropocene; a new geological epoch where humans emerge as a powerful Earth system altering force, fully integral as we have now become to the Earth system, and able to change it in ways that volcanoes or meteorites do [20]. Humans, in short, have become geological agents:

Today, humans can no longer be conceived of as social actors operating exclusively within a social sphere of human-to-human engagements. We must now be conceived of as integral to earth systems. We act today ... as biophysical ‘actants’ who have, through our actions, significantly reshaped the earth. As geological agents, humans are slowly reconceiving themselves as biophysical beings interacting with other biophysical beings... As we humans have slowly but surely come to recognize this change in our status, we have begun to question foundational assumptions about ourselves as a ‘social-only domain’, separate from ‘the natural world “over-there” that surrounds us’ ... as was formed during the Holocene.

[21] (p. 257)

The destruction occasioned by humans’ Earth system altering geological powers is revealed by, among other images, “different versions of the Anthropocene Era” [8] (pp. 3–5). One version is the “Great Acceleration”, which details the rapid decline of Earth system integrity that is associated with a significant rise in greenhouse gas emissions, population growth, increased industrialization, urbanization and consumption, increased biodiversity loss, and possibly even a Sixth Mass Extinction [22]. This version of the Anthropocene suggests that “[W]e have reached a point where many biophysical indicators have clearly moved beyond the bounds of Holocene variability. We are now living in a no-analogue world” [23].

Another version of the Anthropocene casts human domination of the Earth system in terms of planetary boundaries that determine the self-regulating capacity of the Earth system (otherwise understood as biophysical thresholds) [24]. The boundary theory seeks to focus attention on the non-negotiable planetary preconditions that humanity needs to respect in order to avoid the risk of calamitous global environmental change, while offering an opportunity to visualize multiple and growing human demands on limited and deteriorating Earth support systems in concrete, appreciable terms. In terms of the boundary theory, when a boundary or biophysical threshold is crossed, humanity is entering an unsafe operating space [1] (p. 860), which implies a risk of damaging or catastrophic loss of existing ecosystem functions or services across the biosphere [25] (p. 1). Of the nine planetary boundaries (climate change; rate of biodiversity loss (terrestrial and marine); interference with the nitrogen and phosphorus cycles; stratospheric ozone depletion; ocean acidification; global freshwater use; change in land use; chemical pollution; and atmospheric aerosol loading), it is estimated that four have already been crossed, i.e., climate change, biosphere integrity, biogeochemical flows, and land-system change [26].

In detailing the historical trajectory of human domination of the Earth system, the Anthropocene trope (and its various versions), reveal the extent, depth and severity of the present socio-ecological crisis. The Anthropocene’s is a crisis of human hierarchy, of global unevenness, of deepening interdependencies, of Earth system decay, of species extinction, of temporal inter and intra-species injustices, and of intensifying patterns of interrelated human/non-human vulnerability [27].

3. International Environmental Law and the Anthropocene

The foregoing discussion clearly points to the dystopian nature of the Anthropocene trope, urging as it does, a critical reflection on the human-driven causes of its socio-ecological crisis and of innovative ways (regulatory, technological and otherwise) to confront this crisis. To be sure, “[A] futurology of crises is central to the cry for political action of most modern meta-narratives: in this case, the direct connection to the politics of global warming, and environmental issues more broadly, allows the scientific findings of the Anthropocene to be readily used in wider public debates” [6] (p. 45). While an important part of these debates will focus on and encourage the development of utopian innovations such as geo-engineering to cope with a decaying Earth system, society will also have to re-interrogate, and ultimately re-imagine, its many social regulatory institutions, including law, that have been created over thousands of years to promote and sustain the human enterprise. The Anthropocene trope arguably offers a valuable opportunity to revisit the past achievements and future prospects of law as an important part of those global regulatory institutions that must keep life on Earth within a “safe operating space”. In pursuit of such a critical interrogation of law, and in the interest of scope and brevity, the ensuing discussion specifically focuses on international environmental law.

International environmental law is the principal collection of norms aimed at ensuring global environmental protection [28]. Having emerged in the early 1970s, the international environmental law regime is burgeoning, diverse, and detailed, while it seeks to tackle several narrowly defined, sectoral environmental challenges, such as biodiversity protection, ocean governance, and climate change [29]. Despite its rapid development, questions loom large over international environmental law’s ability, effectively to contribute to ensuring Earth system stability and integrity in the face of increasingly severe global socio-ecological decay. To this end, state of the art research has already extensively mapped the failures and deficiencies of international environmental law in the context of the epistemic and regulatory challenges presented by the Anthropocene trope [10,11,12]. Looking through the Anthropocene’s lens, this research reveals the truth about international environmental law and its entanglement with, and structural complicity in, sustaining multiple drivers of Earth system destruction and socio-ecological injustices. These include, for example, international environmental law’s support of several foundational paradigms that underlie global economic, political, legal, and social human systems such as: anthropocentric sustainable development, (neo) colonialism, property rights, state sovereignty, and neoliberal corporate exploitation [30]. As I have shown elsewhere in some detail [30,31], international environmental law (mostly implicitly, but often also explicitly), structurally contributes to causing, sustaining, and exacerbating these predatory paradigms that, in turn, result in Earth system destruction, exploitation, and the oppression of vulnerable humans (mostly those situated in the Global South) and oppression of the non-human world (see also references [32,33]).

As a practical example, the failures and deficiencies of international environmental law are starkly evident from its inability to meaningfully respond to global climate change and its multiple and varied global injustices. International environmental law has failed, among others, to provide ambitiously binding norms that ensure climate mitigation, adaptation, and resilience; it has been unable to address the intertwined social and ecological aspects of climate change; and it has been unable to address problem-shifting resulting from fragmented, non-systems oriented regulation (see generally references [34,35]). The latter is particularly evidenced by the ongoing biofuels controversy. The global biofuels drive that has been designed as a climate mitigation strategy is a noble decarbonization initiative, but the propagation of biofuel crops has several disadvantages that essentially do not solve the core problem at hand. In addition to being a central driver of neo-colonial land-grabbing practices, biofuel activities lead to massive land clearing, deforestation, destruction of habitats, and impacts on biodiversity. Moreover, replacing fossil fuels with bioethanol increases eutrophication because of increased fertilizer use; soil, air, and water contamination increases due to increased pesticide use; water scarcity rises as a result of more crops that must be irrigated; and the spread of genetically modified organisms presents a growing concern (see, among others, references [36,37]).

The foregoing and other failures and deficiencies of international environmental law were clearly underlined in early 2019 through unsuccessful attempts to develop a new binding environmental framework treaty in the form of the Global Pact for the Environment [38]. This process was informed by a technical and evidence-based United Nations (UN) report on “gaps” in international environmental law, which showed the worrying extent to which international environmental law is not a “single overarching normative framework”, but rather one that is “fragmented” as opposed to being coherent, holistic, and synergistic; “incremental and piecemeal” instead of pursuing wholesale radical change; and “reactive” instead of being proactive, reflexive and preventive [39,40] (see for a related, parallel assessment, reference [41]).

The disproportional disconnect between international environmental law’s limited scope and ambition and the magnitude of the Anthropocene’s regulatory challenges is stark and at once problematic. The magnitude of the Anthropocene’s dystopian socio-ecological crisis shows how international environmental law (alongside other human systems such as economics and politics) has become incapable of, and therefore inappropriate for, confronting this crisis [42]. It is clear that we are changing the Earth system more rapidly than we are able to understand and to respond to such change through our laws [43] (p. 10). International environmental law has neither kept up with the pace and scale of Earth system change, nor has it managed to evolve in step with the complexity and severity of the socio-ecological crisis and its complexly changing regulatory demands [44]. Instead, international environmental law has been unable to respond to a complex non-linear Earth system that is characterized by unpredictable shifts at multiple local and global scales; and to an interlinked socio-ecological system where humans and “nature” are not separate entities but instead coevolve [45].

International environmental law’s non-systems approach is specifically evident in that it operates after the fact instead of anticipating Earth system disruptions well in advance, while it is insufficiently adaptive to deal with Earth system complexity and uncertainty [46]. International environmental law remains trapped within the confines of conventional top-down non-systems oriented interstate-law that isolates regulatory problems, while being steered by sovereign (political and economic) interests of states [47], and it focuses on an externalized “environment” that could be “managed” by people through top-down rules adopted by majority consent in the pursuit of short term socio-economic and political benefits [48]. International environmental law and its (largely monodisciplinary) scholarship also remains trapped within a segmented regulatory paradigm focusing on, for example, biodiversity conservation, transboundary watercourses governance, protection of the ocean and atmosphere, and chemicals regulation, instead of recognizing the functionally interdependency of all Earth system elements. In sum, the regulatory challenge which increasingly demands an Earth system perspective, now dwarfs the juridical regulatory solution which has not yet embraced such an Earth system perspective.

4. Towards Earth System Law: The Regulatory Implications of an Earth System Approach

Despite its dystopian nature (or perhaps because of it), by revealing its deficiencies and failures, the Anthropocene trope at once also offers an opportunity to rethink the role of international environmental law in ensuring the continuation of life on Earth by challenging how we understand the role of law in social regulatory systems more generally, including law’s potential to help humans navigate Earth system change [49] (p. 3). The Anthropocene trope thus offers an opportunity to challenge our conventional perceptions of international environmental law as a regulatory institution, including perceptions of its actors, purpose, ontology, objectives and design, while offering an opportunity to look ahead and to reimagine international environmental law. This challenge specifically arises from: the new regulatory reality presented by the Anthropocene trope; the disconnect between the demands of this new regulatory reality and the diminishing regulatory abilities of international environmental law; shifting and intertwined global governance priorities (evidenced by the Sustainable Development Goals); the emergence of new global governance actors at all levels (e.g.,. Extinction Rebellion and Fridays for Future climate actions); intensifying patterns of global socio-ecological decay (evidenced by the projected Sixth Mass Extinction) [50]; and new understandings of organizational norms, collective action initiatives, and complexly uncertain multi-scalar and temporal challenges that interconnect as a single socio-ecological system [51].

A pertinent question that accordingly arises is not merely “whether existing legal concepts can be extended and adjusted to reflect the new human condition but … whether new legal ontologies must be developed that are specifically … concerned with the geological implications of human powers” [33] (p. 24). Business-as-usual international environmental law that only preserves the regulatory status quo and the relative stability of its ineffective regime (as described above), would be inappropriate. We arguably need a new legal paradigm that must be able to fully respond to the complex physically, reciprocally, and temporally interlinked Earth system. The Earth system could be understood as a “highly complex system formed by a large variety of sub-systems … which interact by the exchange of matter, energy, and information” [52] (p. 3); and it is characterized by “complex and multiple-scale feedbacks, critical thresholds, abrupt changes and large temporal and spatial variability” [43] (p. 9).

For international environmental law to better respond to the complex Earth system, it must therefore itself be oriented by and based on an Earth system approach. The Earth system approach is now key in shaping several major regulatory institutions: “detailed studies of the various components of the Earth System are perceived as necessary in combination with a systemic approach that maps their many inter-linkages and feedbacks” [43] (p. 10). Yet, to date, international environmental law and its scholars have not embraced the Earth system approach and are unable to respond juridically to the Earth system’s unique regulatory demands [53]. Some commentators have cursorily suggested alternatives such as “Earth-centered law”, “Anthropocene environmental law”, “planetary boundaries law”, and “Lex Anthropocenae” [54,55,56,57]. But no thorough critique or elaborate theoretical account has thus far been offered, and it remains unclear what such a new legal paradigm, its architecture, actors, focus, regulatory scope, normativity, geographical reach, ethical premise, and scientific agenda could be.

The result is an “Anthropocene gap” which signifies the inability of social regulatory human systems and their scientific domains to contend with and respond to a complex Earth system [58]. This gap exists in relation to international environmental law and legal science’s potential role in navigating the Earth system and its actual and potential contribution to confronting the Earth system’s myriad deepening regulatory challenges. Consequent to this gap, lawyers are unable to understand and respond juridically to the major implications induced by transgressions into a human-dominated planet, while it remains unclear how international environmental law could respond to key problem characteristics of the Earth system such as: (i) the all-inclusive nature of the Earth system; (ii) the complex interdependencies created by Earth system transformation; and (iii) the extreme complexity of Earth system transformations [59]. Earth system law, as a new juridical paradigm for the Anthropocene, would arguably have to fully embrace and respond to these (and several other) characteristics and the regulatory challenges they create. I briefly explore each of these below.

4.1. Inclusivity

First, the Anthropocene trope emphasizes the centrality of the human as a key agent of Earth system change, and it exposes the structural complicity of all social (human) regulatory institutions, such as law, and their predatory patterns of exploitation and deeply entrenched anthropocentrism that are causing, sustaining, and exacerbating the Anthropocene’s socio-ecological crisis [30]. In doing so, attempts to externalize nature from the human experience are now thoroughly challenged. The Anthropocene trope reveals that the Earth system instead does not only include “natural” or ecological aspects such as climatic, oceanic, and biodiversity systems that should be technocratically “managed” by ingenuous human masters. The Earth is an adaptive and multi-faceted system comprising human-social and ecological elements; the maintenance of its integrity would be to the benefit of all Earth system elements [60] (p. 199). This is so because these elements are deeply intertwined: the stability of the ecological element is required for the human-social element to flourish, while the human-social element impacts the overall stability of the Earth system, including its ecological element. In this view, “humans and nature have become ‘definitively’ joined together” [6] (p. 47); a realization which prompts us to rethink how Earth system law could foster a greater degree of harmonious co-existence and the possibility for humans not to dominate and exploit the Earth system, but to live with other Earth system elements in a harmonious and symbiotic way [61].

An all-embracive conception of humans as part of the Earth system (and not masters of it), thus offers an opportunity to think how law could be reformed from serving as a powerful tool of exploitation, domination and mastery, to instead serving as an accommodative means of facilitating mutual respect, care and the pursuit of an all-inclusive form of Earth system integrity. The recent emergence of “rights of nature” in some domestic legal orders is a useful example of what the law could achieve in its attempts to dissolve hierarchies by deliberately embracing ecocentrism and care for the non-human world, and by shunning human mastery while affording humans and non-humans the same status in law [62,63].

Affording non-humans rights is also a way of acknowledging that law does not sufficiently cater for interspecies justice, but that it should. In fact, it is essential to appreciate that the human impact on the non-human world is also a matter of interspecies injustice when viewed in the context of what Grear calls, the “symbiotic generativity of life”: “[I]n a symbiotic view, the ‘all’ of the ‘we’ is profoundly interspecies—(or intra-species if we count ‘earthlings’ in an all embracing way)—a lively entanglement of beings and systems that are never individual in the traditional Western sense” [64] (p. 91). Earth system law should accordingly not only pursue justice for some privileged present humans that form only a very small and particularized privileged subset of the past and present global human population [65] (p. 286), but for all present and future humans living in the Global North and the Global South [66], as well as for present and future non-humans in equal terms. From an Earth system perspective, the type of justice that Earth system law must therefore pursue is a very different, significantly enlarged, and “deeper” version than the one that law currently pursues.

4.2. Interdependencies

Second, from the perspective of an intertwined, nested and reciprocally connected Earth system, the underlying drivers of the Anthropocene create, transform and reinforce multiple inter- and intra-generational, inter- and intra-species relations, and their accompanying globally intensifying interdependencies. These interdependencies manifest spatially (from the local to the global sphere), temporally (in an inter and intra-generational sense), in an inter- and intra-species sense, and in the context of functionally interdependent Earth system elements such as climatic and aquatic systems [67] (p. 58). In fact, this globally interconnected characteristic of the Anthropocene, has resulted in

cross-scale interactions connecting people and places in new ways, in turn resulting in novel and dynamic local, regional, and worldwide dependencies. Escalating environmental changes interact and connect across scales with large social and economic changes, triggering feedback loops, abrupt change, turbulence, and increased exposure to new types of risk.

[68] (p. 268)

The challenge for Earth system law would accordingly be how to accommodate these ever-deepening and expanding interdependencies in a spatial, temporal, inter/intra-species, and functionally interdependent sense.

Spatially, Earth system law will have to be less focused on the nation state and its bordered sovereign interests, and instead must more fully embrace the idea of “globalness” or transnationality. Such a progression would necessarily also imply a deliberate rejection of law’s virtually exclusive focus on “hard”, enforceable, state-made law, by embracing instead a more normatively plural collection of alternative “softer” norms that are made, used and revised by various actors other than the state, and that operate at multiple scales. The steady emergence of the idea of transnational environmental law and governance is an example of the type of juridical innovations that could drive such transformations [69].

Temporally, Earth system law will have to better realign short term benefits with long-term impacts [6] (p. 48). Social institutions such as law are unapologetically designed to address the “here and the now” as a result of their dependence on short-termist political and economic needs that legitimize their existence, and that must be immediately satisfied without much regard for the needs and concerns of future (human and non-human) generations. It was only fairly recently that some environmental laws started, at least on paper, to embrace a forward-looking orientation through the principle of inter and intra-generational equity. But much more needs to be done before it could be said that law pays sufficiently equal regard to past destruction and historical wrongs and present and future challenges, as it should [70].

Closely related to the centrality of the human geological agent to the Earth system (discussed above), Earth system law will also have to accommodate the relationships between species. In doing so, law will have to discard the many “dynamics of privilege and oppression” that it embrace and that lead to the Anthropocene’s “crisis of human hierarchy” and “global unevenness” [71] (pp. 111, 119), and that are created and maintained by pursuing a deeply entrenched predatory paradigm of human mastery. Because the Anthropocene trope essentially dissolves the many pervasive socially constructed hierarchies of privilege, it is now increasingly clear that the entire living order is vulnerable and would require protection and care through social regulatory institutions [72]. Going forward, Earth system law will have to more thoroughly and deliberately embrace the vulnerability concerns of all humans and those of the non-human world. In other words, addressing the vulnerability of the entire Earth system must become a central concern of and objective for Earth system law [73].

Finally, law has also not yet fully appreciated the deeply interlinked and reciprocal relationship between functionally interdependent Earth system elements. For example,

There is a profound and counterproductive discrepancy between the complexity of the climate system as part of a living ontological plane, and law’s fundamentally fragmentary responses, which remain locked (in the main) within path-dependent priorities, boundaries, and disciplinary commitments … Legal thought, moreover, has a deep tendency to deploy certain conceptual structures: binaries; reductionisms; atomistic, linear views of causation; taxonomies; separative, bounded domains; territorial jurisdictional parameters, and so forth- none of which fit well with the amorphous complexity of climate change. Law’s taxonomical and linear tendencies, if anything, tend to exacerbate law’s inadequate systemic grasp of the challenges.

[71] (pp. 104–105)

Such a segmented, non-systems approach is clearly reflected in international environmental law. One consequence is the differing and contradictory positions adopted across various international environmental law treaty regimes and normative conflicts that might arise as a result [74]. Of even greater concern is international environmental law’s tendency to shift problems among and between its various regimes as we have seen above: “neglect for cross-sectoral interactions on the part of MEAs [multilateral environmental agreements] comes with a high risk of transfer of harm or hazards from one area or medium to another, or the transformation of one type of environmental harm into another” [47] (p. 298). Going forward, Earth system law will have to more fully accommodate the functional interdependencies of all Earth system elements. It could start doing so by discarding international environmental law’s fragmented focus on specific environmental sectors and challenges, such as biodiversity conservation and climate change, and instead explore ways to foster greater regulatory coherence that is responsive, reflexive, and symbiotic.

4.3. Complexity

Third, the Anthropocene introduces a new understanding of complexity that is fundamentally different from whatever understanding of complexity we had in terms of the relatively harmonious and “uncomplex” Holocene: “[T]he stable Holocene has proven to be a very accommodating global environment for the development of humanity; it has allowed agriculture, villages and larger settlements and more complex civilizations to develop and thrive” [75] (p. 747). The Anthropocene trope, however, now destabilizes and challenges these notions of relative Holocene stability, equilibrium, predictability, harmony, continuity, and linearity that have hitherto also informed the objectives, architecture, and content of the law. To the extent that it has been fully based on and informed by such Holocene stability, international environmental law, like so many other social regulatory institutions, has subsequently been pursuing an undynamic regulatory strategy that maintains stasis, instead of one that adapts to and governs for change with a view to confronting the type of complex and “profound disruptions” we are now witnessing in the Anthropocene [76] (p. 108).

While law needs to be responsive to the continuously changing social, political, economic, cultural and ecological contexts that it is embedded in [77], it is highly likely that disruptions in these contexts will become more severe, frequent, and far reaching in the Anthropocene, and that law will be unable to address these effectively simply because it has not been designed to respond to such extraordinary degrees of complexity. The ever-deepening disruptions caused by climate change, and its many and varied impacts in the social, political, economic, cultural, and ecological spheres of life, as well as the inability of international environmental law to deal with these, is a case in point. A major concern in this respect is international environmental law’s “false assumption of ecological equilibrium” [53] (p. 6), which must be discarded going forward.

A central objective for Earth system law in this respect must therefore be to embrace Anthropocene complexity and its associated characteristics of unpredictability, non-linearity, etc., and to instead assume these as a principal point of departure. To this end, Earth system law must itself be a complex adaptative system that seeks to govern, in a mirror-like way, aspects of the Earth’s complex adaptive system:

Global environmental changes are inherently unpredictable; hence, our governing institutions need to be sufficiently flexible and able to rapidly adapt when necessary to, for example, nonlinear changes. At the same time, institutions must be stable and rigid enough to ensure that humanity stays within the ‘safe operating space.’ The right balance between these contrasting properties is achieved and maintained in a CAS [complex adaptive system], and hence the proposition IEL [international environmental law] should be designed as one.

[53] (p. 9)

Such an adaptive system-oriented body of Earth system law must simultaneously respect planetary-scale tipping points and pay due consideration to the dynamic interconnections of Earth system elements, while embracing the complexity of interacting planetary boundaries and safeguarding the integrity of Earth’s life-support systems.

5. Conclusions

This paper has not offered any thoroughgoing conceptual treatment of ESL, its architecture, content, specific objectives or research agenda. Less ambitiously, it only made out a case in support of starting to think about law in Earth system terms with a view to reimaging a new juridical paradigm to confront the Anthropocene, its socio-ecological crisis, and some of the regulatory challenges flowing therefrom. The implications of an Earth system approach for law could be far-reaching and paradigm-shifting. For instance, international environmental law, the example used for illustrative purposes in this paper, might have to: shift its focus from the reductionist three-tiered approach to sustainable development to one recognizing inseparable social-ecological systems; shift from local interventions aimed at the present to global multi-scalar interventions operating across geographies and time scales in a dynamic cross-scale context; discard assumptions of linearity, predictability, and incrementality for an approach embracing complexity and the possibility of non-linear systemic tipping points; not be solely dependent on the state as its principal actor/agent and primary legitimizing source of authority; and change its focus from adapting to focusing on transforming for change, including pathways to create a new system when ecological, economic, or social structures make the existing system untenable [68].

These are only some of the normative and epistemic challenges that law, lawyers, legal scholars, and legislators will have to grapple with in pursuit of constructing a coherent concept, theory, framework, research program, and legislative program for Earth system law. While such a reimagination exercise is daunting, it is not unprecedented. Political scientists have already commenced with rethinking global environmental governance alongside Earth system dictates. Notably within the domain of Earth system governance, Biermann has made out a case in support of developing a new sustainability governance paradigm that pursues “global stewardship for the planet”; one that is based on cooperation, coordination, and consensus-building between various state and non-state actors at multiple scales; one that includes complex architectures of interlinked institutions and decision-making procedures; and one that deliberately embraces diversity and disparity [15] (p. 24). These considerations, along with the aspects of inclusivity, interdependencies, and complexity discussed above, will all be relevant and valuable for future efforts that seek to articulate Earth system law for the Anthropocene. The stage is now set for the elaboration of a new Earth system-centered legal paradigm for the Anthropocene.