Const in The Anthropocene

Journal of Human Rights and the Environment, Vol. 15 No. 1, March 2024, pp.
4–22
Constitutionalizing in the Anthropocene
Floor Fleurke*
Associate Professor of EU Law, Tilburg Law School, the Netherlands
Michael Leach**
Assistant Professor, Tilburg Law School, the Netherlands
Hans Lindahl***
Professor of Legal Philosophy, Tilburg Law School, the Netherlands; and Professor of Global Law,
Queen Mary University of London, UK
Phillip Paiement****
Professor of Law & Governance in the Anthropocene, Tilburg Law School, the Netherlands
Marie Petersmann*****
Assistant Professorial Research Fellow, LSE Law School, UK
Han Somsen******
Professor of EU Law, Tilburg Law School, the Netherlands, the Netherlands
The Anthropocene thesis, in its rejection of both the modernist separation between ‘humans’
and ‘nonhumans’ as well as in 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 reconcep-
tualization of legal relations as never being limited to human concerns, but as always and
already part of more-than-human collectives. These legal relations are organized by the co-
agency of humans and nonhumans, in recognition of shared vulnerabilities and in relations
premised on care. This reconceptualization demands a new understanding of representa-
tional 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 Anthropo-
cene, and the role that law plays in this regard. Such technologies have given rise to the
* Email: F.M.Fleurke@uvt.nl.
** Email: M.C.Leach@uvt.nl.
*** Email: H.K.Lindahl@uvt.nl.
**** Email: P.M.Paiement@uvt.nl.
***** Email: m.petersmann@lse.ac.uk (corresponding author). The authors would like to thank
the colleagues and friends of the ‘Constitutionalizing in the Anthropocene’ research project funded
through the Law School Sector Plan scheme of the Dutch Ministry of Education, Culture and
Science. They also thank the participants to the CitA workshop that was held at Tilburg Law
School in December 2020 and the anonymous reviewers for their constructive feedback on the
article, as well as the editors of the journal for their engagement with the argument. For more
information on the CitA project, please visit <https://constitutionalizing-anthropocene.org>.
****** Email: Han.Somsen@uvt.nl.
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Constitutionalizing in the Anthropocene 5
possibility of ‘ruling by design’, by technologically mediating ‘natural’ forces or Earth sys-

tem processes to achieve pre-established regulatory goals. This possibility raises critical
concerns about the remaining role for law in legitimising 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 architectures capable of manifesting more-than-human constitutionalism, it is neces-
sary to excavate the historical role that foundational legal principles and institutions – such
as sovereignty and personhood – have had in facilitating exploitative relations between and
beyond humans.
Keywords: constitutionalism, Anthropocene, more-than-human collectives, emergent

technologies, transformations
1 INTRODUCTION
The ‘Anthropocene’ is the name proposed by Earth system scientists and geologists
for the ‘current epoch in which humans and our societies have become a global geo-
physical force’.1 Understood as a geological phenomenon, the Anthropocene signals
that ‘humans’ – viewed as a unified whole or as a species – wield a ‘force’ capable of
marking and disrupting the ‘natural’ functioning of the Earth: anthropogenic disrup-
tions are of such degree that they alter atmospheric, geologic, hydrologic, biospheric
and other Earth processes. While the preceding Holocene epoch was characterized by
relative stability in ecological conditions, the Anthropocene is marked by change,
uncertainty and instability in the behaviour of the Earth, which carries wide-ranging
implications for how domestic and international law conceives of and regulates socio-
ecological issues.2 Taken together with its companion concept of ‘planetary bound-
aries’ – a framework developed by Earth system scientists to propose ‘boundaries’
to nine processes that regulate the stability and resilience of the Earth to secure ‘a
safe operating space for humanity’3 – the Anthropocene thesis has mainly been
received in international law as a geophysical phenomenon presenting a major set
of problems, the resolution of which requires rapid regulatory adaptations of legal
norms and practices. A telling example is provided by the call to ‘bolster legal bound-
aries to stay within planetary boundaries’.4 Some have moved beyond calls for
1. W Steffen, PJ Crutzen and JR McNeill, ‘The Anthropocene: Are Humans Now Over-
whelming the Great Forces of Nature?’ (2007) 36:8 Ambio: A Journal of the Human Environ-
ment 614, at 614. The formalization of the ‘Anthropocene’ by the Anthropocene Working
Group (AWG) of the Subcommission of Quaternary Stratigraphy, formed within the Interna-
tional Commission on Stratigraphy (ICS), still needs to be approved by the ICS. See the
AWG’s website, at <http://quaternary.stratigraphy.org/working-groups/anthropocene>.
2. D Vidas, J Zalasiewicz and M Williams, ‘What Is the Anthropocene – and Why Is It Rele-
vant for International Law?’ (2015) 25:1 Yearbook of International Environmental Law 3; D
Vidas et al., ‘International Law for the Anthropocene? Shifting Perspectives in Regulation of
the Oceans, Environment and Genetic Resources’ (2015) 9:1 Anthropocene 13.
3. J Rockström et al., ‘Planetary Boundaries: Exploring the Safe Operating Space for
Humanity’ (2009) 14:2 Ecology & Society 32.
4. G Chapron et al., ‘Bolster Legal Boundaries to Stay Within Planetary Boundaries’ (2017)
1 Nature Ecology & Evolution 1. See also D French and LJ Kotzé (eds), Research Handbook
on Law, Governance and Planetary Boundaries (Edward Elgar 2021); and infra (n 51).

6 Journal of Human Rights and the Environment, Vol. 15 No. 1
reforming or strengthening international law, prescribing instead a whole new legal

paradigm, namely an ‘Earth System Law for the Anthropocene’.5
The Anthropocene, however, implies much more than a reconfiguration of the
‘environment’ as a complex, unstable and dynamic Earth system to which legal
thought and practice must adapt. It signals a reconfiguration of the ‘human’ category
itself, and of the relationship between ‘humans’ and ‘nonhumans’ hitherto assumed by
Western modern (legal) traditions, and long refused and resisted by Indigenous and
decolonial traditions.6
The confrontation of the humanities and social sciences with the Anthropocene
thesis constitutes indeed a major disruptive ‘event’.7 At the heart of the debates lies
a contestation surrounding the term ‘Anthropocene’ itself, which is imbued with pro-
blematic assumptions regarding the transcendental ideal of ‘humanity’ posited as both
culprit and victim. Critiques of a conflated ‘humanity’ have been advanced from var-
ious and intersectional perspectives,8 and alternative names for this epoch have been
proposed to circumvent the conceptual flaws that the orthodox term and definition
entail.9 These reconfigurations advocate a rejection of the modernist separation
between ‘humans’ and ‘nonhumans’ and of the mastery of the former over the latter
that has been taken for granted in Western societies since the Enlightenment period.
Critics also reject an unqualified ‘human’ category as a singular ‘global geophysical
force’, and denounce the role played by specific societies and their enactment of a
capitalist world-ecology.
Building on these critiques, the research project on ‘Constitutionalizing in the Anthro-
pocene’ (CitA) takes stock of these radical reconfigurations of human-nonhuman
relations to explore the constitutional dimensions that living in the Anthropocene implies
for more-than-human collectives with distinct, distributed and differential agencies,
response-abilities and vulnerabilities.10 From this perspective, the societies or worlds
that ‘humans’ form and the worldviews they enact are not perceived as being built
5. See, eg, LJ Kotzé and R Kim, ‘Exploring the Analytical, Normative and Transformative
Dimensions of Earth System Law’ (2021) Environmental Policy and Law 1. See also T Cad-
man, M Hurlbert and AC Simonelli (eds), Earth System Law: Standing on the Precipice of
the Anthropocene (Routledge 2022).
6. See, eg, J Singh, Unthinking Mastery: Dehumanism and Decolonial Entanglements (Duke
University Press 2018); L Betasamosake Simpson, As We Have Always Done: Indigenous Free-
dom through Radical Resistance (University of Minnesota Press 2020); C Black, The Land is
the Source of the Law: A Dialogic Encounter with Indigenous Jurisprudence (Routledge 2010).
7. C Bonneuil and J-B Fressoz, L’Événement Anthropocène: La Terre, l’histoire et nous
(Éditions du Seuil 2016); S Dalby, ‘The Anthropocene Thesis’ in M Juergensmeyer et al.
(eds), The Oxford Handbook of Global Studies (Oxford University Press 2018) 173.
8. See, eg, K Yusoff, A Billion Black Anthropocenes or None (University of Minnesota Press
2019); R Braidotti, Posthuman Knowledge (Polity 2019); R Grusin (ed), Anthropocene Femin-
ism (University of Minnesota Press 2017); JW Moore (ed), Anthropocene or Capitalocene?
Nature, History, and the Crisis of Capitalism (PM Press 2016); H Davis and Z Todd, ‘On
the Importance of a Date, or, Decolonizing the Anthropocene’ (2017) 16:4 An International
Journal for Critical Geographies 761.
9. D Haraway, ‘Anthropocene, Capitalocene, Plantationocene, Chthulucene: Making Kin’
(2015) 6 Environmental Humanities 159; and Bonneuil and Fressoz, supra (n 7) at 119–317.
For the orthodox definition, see supra (n 1).
10. ‘Response-abilities’ is used to refer to Haraway’s call to cultivate an (in)ability to respond
or a ‘response-ability’ as a practice of ongoing collective knowing and doing, where the duty to
respond to harms is inherently joined with the question of differentiated ability to do so. For
more on ‘response-(in)abilities’, see section 2 below, and n 22 specifically.

upon or emerging from without ‘nature’, but from within: not in disconnection from
nonhumans but embedded in entangled more-than-human worlds. In this respect,
CitA aligns with strands of theory that suggest ways of legally (re)positioning humans
in relation to nonhumans, such as ‘Earth jurisprudence’ or ‘wild law’,11 and with what
has come to be coined more broadly as ‘law for the Anthropocene’, which unpacks
ontological and epistemological implications that the Anthropocene condition triggers
for legal thought and practice.12
The CitA project is concerned with the capacity to constitutionalize living in the
Anthropocene. As Neil Walker usefully remarks: ‘if practical reasoning in general
is about deciding how to act in a context of practical choice, the special kind of prac-
tical reason associated with constitutionalism is concerned with the deepest and most
collectively implicated question of “how to decide how to decide” how to act [collec-
tively]’.13 Set against the backdrop of the Anthropocene, the fundamental question of
‘how to decide how to decide how to act collectively’ must account not only for
human collective action but for that of implicated more-than-human collectives.
This reconfiguration opens myriad new questions and lines of (legal) inquiry, as
this article argues.
The article is organized along the lines of the three analytical categories of trans-
formations that animate the CitA project, namely: (i) conceptual and foundational
transformations; (ii) regulatory transformations; and (iii) institutional transformations,
each of which are given further elaboration in this article. Far from providing any
definitive answer or solution to the problems identified, this overview aims to intro-
duce readers to the main challenges that arise with conceptualizing and understanding
how and to what ends living conditions in the Anthropocene can be ‘constitutiona-
lized’ in and by law.
2 CONCEPTS AND FOUNDATIONS
One of the central research inquiries of the CitA project is to investigate and recon-
ceptualize relations between humans and nonhumans. In its inquiry and critique, the
project affirms and extends the ‘Capitalocene’ thesis, which aims to dismantle the
capitalist world-ecology defined by an onto-epistemology of masterful ‘humans’
who relate to the ‘nonhuman’ through subjugation, control and exploitation. 14
11. M Maloney and P Burdon (eds), Wild Law – In Practice (Routledge 2014); P Burdon (ed),
Exploring Wild Law: The Philosophy of Earth Jurisprudence (Wakefield Press 2011).
12. K Birrell and D Matthews, ‘Re-storying Laws for the Anthropocene: Rights, Obligations
and an Ethics of Encounter’ (2020) 31 Law and Critique 233; A Grear, ‘Legal Imaginaries and
the Anthropocene: “Of” and “For”’ (2020) 31 Law and Critique 351; D Matthews, ‘Law and
Aesthetics in the Anthropocene: From the Rights of Nature to the Aesthesis of Obligations’
(2019) Law, Culture and the Humanities 1.
13. N Walker, ‘Taking Constitutionalism Beyond the State’ (2008) 56 Political Studies 519–
43, at 524.
14. JW Moore, Capitalism in the Web of Life (Verso 2015). ‘Onto-epistemology’ refers to the
‘study of practices of knowing in being’ (emphasis added), thereby positing an inseparability of
being, knowing and acting within the world. As Barad observes: ‘[t]he separation of epistemol-
ogy from ontology is a reverberation of a metaphysics that assumes an inherent difference
between human and nonhuman, subject and object, mind and body, matter and discourse’.
K Barad, Meeting the Universe Halfway: Quantum Physics and the Entanglement of Matter
(Duke University Press 2007) at 185 and see 379–81.

This thesis calls for an interruption of structural and asymmetrical power relations
with an externalized and objectified ‘cheap nature’.15 It equally rejects the supposedly
symmetrical relations between ‘humans’ reproduced by the formal definition of the
Anthropocene, which posits a presumably all-encompassing and unified ‘humanity’
acting on ‘nature’.16 In so doing, the project invites a reconfiguration of the categories
of both human-nonhuman ‘subjects’ and ‘objects’ of law to think of them not as sepa-
rate, pre-given and fixed entities, but as entangled actants who intra-act within more-
than-human collectives.17 At the core of this reconfiguration in legal thinking lies a
renewed understanding of the materiality of legal practices. Nonhumans are not
merely the inert matter that humans act upon, but intra-active entities that humans
act with.18 From this vantage point, legal relations and the practices they enact can
never be limited to purely human concerns nor understood as emerging solely from
human action, since humans are always and already part of more-than-human collec-
tives. This raises a question: how should the notion of legal relations be understood if
collectives are more-than-human collectives with distributed and entangled agency
between humans and nonhumans?
Reinterpreting legal relations within more-than-human collectives demands
rethinking the notion of agency along at least two vectors of analysis. On the one
hand, it challenges the notion of ‘freedom’ by suggesting that it begins elsewhere
and earlier than with ourselves. Instead, being members of more-than-human collec-
tives requires acknowledging an original and radical dependency on the Other, which
ruins any attempt to characterize freedom simply as autonomy: as self-rule, whether
individual or collective. This reinterpretation necessarily rejects strong philosophical
interpretations of action as the beginning or origin of change, requiring instead a view
of action as secondary, as re-active, or more precisely, as responsive.19 Likewise, the
15. Moore, supra (n 8); Haraway, supra (n 9).

16. For this formal definition, see supra (n 1).
17. The notion of ‘intra-action’ comes from Barad, who rejects the metaphysics of individualism
and suggests an agential realist account where matter is ‘a dynamic expression/articulation of the
world in its intra-active becoming’. In contrast to the usual ‘interaction’ that assumes separate indi-
vidual agencies that precede each action, the neologism ‘intra-action’ signifies the mutual consti-
tution of entangled human-nonhuman agencies. Barad, supra (n 14) at 33 and 392–3.
18. The literature on the materiality of law is vast. Kang and Kendal usefully distinguish
between ‘matters’ and ‘materials’: ‘if matters are problematizations or “matters of concern”
to law, materials are the attributes or properties that are enlisted in acts of interpretation’. As
they put it: ‘Legal materiality is concerned with how materials come to matter by being engaged
in the production of legal meaning through interpretive and representational practices’. HY
Kang and S Kendall, ‘Legal Materiality’ in S Stern, M Del Mar and B Meyler (eds), The Oxford
Handbook of Law and Humanities (Oxford University Press 2019) at 21 (original emphasis).
See also HY Kang and S Kendall, ‘Introduction’, in HY Kang and S Kendall (eds), Special
Issue (2019) Law Text Culture, vol 23 Legal Materiality 1–15; S Vermeylen, ‘Materiality
and the Ontological Turn in the Anthropocene: Establishing a Dialogue between Law, Anthro-
pology and Eco-Philosophy’ in LJ Kotzé (ed), Environmental Law and Governance for the
Anthropocene (Hart Publishing 2017); M Davies, Law Unlimited (Routledge 2017); A Pottage,
‘The Materiality of What?’ (2012) 39:1 Journal of Law and Society 167–83. The materiality of
law and agency of nonhuman legal artefacts are also key to posthuman theories. See, eg, the
special issue edited by A Grear, E Boulot, I Darío Vargas-Roncancio and J Sterlin, ‘Posthuman
Legalities: New Materialism and Law Beyond the Human’ (2021) 12:1 Journal of Human
Rights and the Environment (and all the contributions therein).
19. B Waldenfels, Antwortregister (Suhrkamp 1994); K Oliver, Response Ethics (Rowman &
Littlefield 2019).

responsiveness of entangled agency presupposes a more original passivity, in the form

of an embodied affectivity, sensibility and receptivity, absent which there could be no
opening to and forms of care within more-than-human worlds.20 Furthermore, reinter-
preting legal relations in terms of intra-actions requires relinquishing any assumption
that agency is the exclusive preserve of human beings. In this way, acknowledging the
responsiveness of action is also to acknowledge the co-agency of agency itself, such
that humans and nonhumans ‘act-with’ and respond to each other as part of more-
than-human collectives.21 The notion of co-agency that emerges from intra-active
relations between humans and nonhumans does not imply, however, an agential inse-
parability among actants, but accounts instead for a differential ability of actants to act
and to respond – a ‘response-(in)ability’ – in ways that enact differences that matter.22
For law, this invites questions about how notions of co-agency give rise to new forms
of legal relations that include human and nonhuman actants while accounting for their
respective differential responsiveness and (in)abilities to respond. In what way, in
other words, might the ‘co’ of co-agency speak to modes of sociality occluded by con-
temporary accounts of legal collectivity?
A reconfiguring of agency as co-agency between humans and nonhumans with dif-
ferential (in)abilities to respond to and account for the enactment of their intra-actions
implies a recognition of shared yet asymmetrical vulnerabilities that span across more-
than-human collectives. Responding to such vulnerabilities demands a reconfigura-
tion of intra-active relations towards caring relations. This reconfiguration requires
suspending the protection of certain otherwise presumed independent privileged
actants over others, whether ‘humans’ against ‘nonhumans’ or particular ‘humans’
or ‘nonhumans’ against others. The notion of caring relations, in this sense, constitutes
‘a feeling with, rather than a feeling for, others’.23 From a legal standpoint, this recon-
figuration demands a fulfilment of the obligation to care within entangled relational
arrangements.24
The enactment of caring relations that emerges from the shared material and affec-
tive dependency does not, however, reduce or disavow the differences and asymme-
tries among the destructive and restorative impacts of human and nonhuman actants.
A relational disposition of care by no means implies a symmetrical ‘response-ability’
in the face of shared afflictions, nor does it imply a necessary ability to respond in the
first place. Rethinking legal relations through responsive ethics of care instead
demands radical reconfigurations not only of who and what to care about but also
how to (begin to) care about possible ways of living within more-than-human worlds.
20. M Merleau-Ponty, Phenomenology of Perception, trans. D Lande (Routledge 2013);

M. Merleau-Ponty, Nature: Course Notes from the Collège de France, trans. Robert Vallier
(Northwestern University Press 2003); M Merleau-Ponty, The Visible and the Invisible,
trans. Alphonso Linguis (Northwestern University Press 1968).
21. See ‘The Ontology of Knowing, the Intra-activity of Becoming, and the Ethics of Matter-
ing’, in Barad, supra (n 14) 353–95; and D Haraway, Staying with the Trouble: Making Kin in
the Chthulucene (Duke University Press 2016). As Haraway argues, becoming is always a
‘becoming-with’, which offers an onto-epistemology grounded in connection, instead of
separation.
22. Barad, supra (n 14) 353–95; Haraway, supra (n 21) 104–17; M-C Petersmann, ‘Response-
abilities of Care in More-than-Human Worlds’ (2021) 12:1 Journal of Human Rights and the
Environment 102–24.
23. H Hobart and T Kneese, ‘Radical Care Survival Strategies for Uncertain Times’ (2020) 38
Social Text 1, at 2.
24. Matthews, supra (n 12).

By remaining open to potential enactments of intra-active human-nonhuman relations,

a sense of care for more-than-human worlds is not limited to extant or ontic realities
that predetermine specific degrees of protection. Instead, such openness extends car-
ing relations towards potential other worlds to come. Such speculative commitments
to caring relations can thereby re-affect and revitalize objectified worlds.25 What are
the consequent structure and dynamic of caring relations in more-than-human worlds
and to what extent, and how, might legal collectives be(come) caring? Under what
conditions, in other words, can a legal collective come to care for something for
which it had been uncaring?
One must also wonder about the political formats in which caring relations within
more-than-human collectives could find suitable expression. Political representation,
we argue, is a good point of departure. Although it has been argued that participation
is a form of representation, and that collective unity is always and only a represented
unity, this debate takes for granted that what is represented is a collective of
humans.26 Enacting caring relations within more-than-human collectives, however,
implies a radical rethinking of political representation and its limits along several vec-
tors. First, how, if at all, might the ‘intercorporeality’ of representational practices
condition the possibility of representing more-than-human collectives?27 In particular,
how, if at all, might representational practices in politics and law make sense
of entangled and intra-active relations between humans and nonhumans?28 Moreover,
how can representational practices account for differential abilities to act within more-
than-human collectives, without regressing into familiar relations of subjugation?
Second, if representational practices invoke the first-person plural perspective of a col-
lective ‘we’, in what way, if at all, can they involve the participation of nonhumans as
not only the ‘we who matter’ but also the ‘we authors’ of collective law-making?29
Third, if representational practices include and exclude, and render visible and invi-
sible, then what sense can be made of struggles for representation as struggles for
inclusion and visibility in more-than-human collectives? This interrogation must
also account for what has been or risks being excluded from mattering,30 as well
as considerations of those who demand no inclusion but instead thrive on a politics
25. M Puig de la Bellacasa, Matters of Care: Speculative Ethics in More Than Human Worlds
(University of Minnesota Press 2017).
26. C Lefort, Democracy and Political Theory, trans. D Macey (Polity 1988); B Van Roermund,
‘First-Person Plural Legislature: Political Reflexivity and Representation’ (2003) 6 Philosophical
Explorations 235–52; H Lindahl, ‘Inside and Outside Global Law: The 2018 Julius Stone Address’
(2019) 41 Sydney Law Review 1.
27. See Merleau-Ponty references supra (n 20); B Waldenfels, Das leiblichte Selbst: Vorle-
sungen zur Phänomenologie des Leibes (Suhrkamp 2000).
28. Barad, supra (n 14).
29. Van Roermund, supra (n 26); H Lindahl, Authority and the Globalisation of Inclusion and
Exclusion (Cambridge University Press, 2018). A simple reference to ‘we’, in the first-person
plural sense of ‘we together’, is too massive; it must be parsed into three different but interrelated
we-positions: ‘we-spokespersons’, ‘we who matter’ and ‘we authors’. The ‘we-spokespersons’
position stands for all those agents which in speaking and acting as participant agents effectively
act and speak on behalf of this position. The ‘we who matter’ position regards the group at stake
in collective action. Finally, the ‘we authors’ position concerns the group that authorizes collec-
tive action. Typically, democratic theory interprets legitimacy in terms of the identity between the
we ‘who matter’ and the ‘we authors’ positions.
30. J. Rancière, Le partage du sensible: Esthétique et politique (La Fabrique Éditions 2000).

of refusal or politics for exclusion.31 That is to say: what are the conditions that gov-
ern representation as responsive representation?32 Fourth, what light might represen-
tational practices shed on the temporality and spatiality of more-than-human
collectives in the Anthropocene?33 In particular, are representational practices in pol-
itics and law up to the task of articulating intergenerational justice for more-than-
human collectives? In what ways might it be possible to deploy distinct, multiple
and overlapping forms of intergenerational care for living and non-living actants
with whom humans are entangled in ways that can mourn the anthropogenic loss
and extinction of beings and for which anthropocentric views of representation share
responsibility?34 Fifth, what role might the materiality of representational practices
play in the individuation of more-than-human collectives?35 And to what extent can
emerging technologies – in light of their ability to enact sensing practices that enable
a datafied relational awareness and engagement with more-than-human worlds – help
mediate human-nonhuman relations as well as the representation of nonhumans in
law and politics?36 In light of the above, representational practices must therefore be
reconfigured in light of the ‘intercorporeality’ of entangled and intra-active relations
between humans and nonhumans within more-than-human collectives. As with
human collectives, more-than-human collectives are also entangled with struggles for
inclusion and exclusion. The dynamics of inclusion and exclusion relate to subjective
(ie who are the human and nonhuman subjects affected by the representational practices
at stake?) but also temporal (ie whether and how representational practices can mourn
extinct worlds and anticipate more-than-human worlds to come) and spatial configura-
tions (ie whether and how representational practices can relate to distant, invisible and
potential worlds in the making).
31. GS Coulthard, Red Skin, White Masks: Rejecting the Colonial Politics of Recognition
(University of Minnesota Press 2014); S Harney and F Moten, The Undercommons: Fugitive
Planning & Black Study (AK Press 2013).
32. Waldenfels, supra (n 19); H Lindahl, ‘Intentionality, Representation, Recognition’, in
T Bedorf and S Herrmann (eds), Political Phenomenology: Experience, Ontology, Episteme
(Routledge 2019) 256–76.
33. F Menga, Lo scandalo del futuro: per una giustizia intergenerazionale (Storia e letteratura
2017); F Menga, L’emergenza del futuro. I destini del pianeta e le responsabilità del presente
(Donzelli 2021); H Lindahl, ‘Place-holding the Future: Intergenerational Justice in More-than-
Human Collectives’ (2021) 2 Rivista di Filosofia del Diritto 313–30.
34. K Barad, ‘Troubling Time/s and Ecologies of Nothingness: Re-turning, Re-membering, and
Facing the Incalculable’ (2018) 92 New Formations: A Journal of Culture/Theory/Politics 56;
T van Dooren and D Bird Rose, ‘Keeping Faith with the Dead: Mourning and De-extinction’
(2017) 38:3 Australian Zoologist 375; L Baraitser, Enduring Time (Bloomsbury 2017);
L Head, Hope and Grief in the Anthropocene: Re-conceptualising Human-Nature Relations
(Routledge 2016).
35. Individuation, in this context, refers to how a given legal order can be picked out as this or
that specific legal order. Traditionally, legal theory has focused on legal orders as inter-human
affairs, eg on law as WTO law or as Brazilian law, but how to make sense of the individuation
of legal orders of more-than-human collectives?
36. For an exploration of such questions from distinct angles of inquiry and critique, see, eg,
D Chandler, Ontopolitics in the Anthropocene: An Introduction to Mapping, Sensing and Hack-
ing (Routledge 2018); L Amoore, Cloud Ethics: Algorithms and the Attributes of Ourselves and
Others (Duke University Press 2020); F Johns, ‘Data, Detection, and the Redistribution of the
Sensible in International Law’ (2017) 111 American Journal of International Law 57; J Gabrys,
Program Earth: Environmental Sensing Technology and the Making of a Computational Planet
(University of Minnesota Press 2016).

Finally, such reconsidering of concepts of relation, agency, care and representation

demands terrestrializing constitutionalism. Against territorial constitutionalism, to ter-
restrialize constitutionalism acknowledges the vitality and disruptive dynamics that
the Anthropocene foregrounds. To terrestrialize practices of more-than-human legal
ordering disrupts and suspends the subjective, temporal, spatial and material bound-
aries of modern constitutionalism. Modern constitutionalism envisions itself as an
inquiry into the constitution of a polity through a threefold understanding of the
term ‘constitution’: (1) the make-up of a polity – the basic structure of its legal
order; (2) law-making in all its variations and permutations, including constituent
power – legal ordering; and (3) the rules and principles that govern authoritative
law-making. Terrestrializing constitutionalism requires critical examinations of the
presuppositions that govern each of these three dimensions of modern constitutiona-
lism, namely: (1) If constitutions are understood as structuring polities in terms of
spatial, temporal, subjective and material jurisdiction, then what transformed interpre-
tations of space, time, subjectivity and agency would be demanded if jurisdiction were
to become terradiction?37 (2) Can constituent power be reconfigured as a response-
able ‘enworlding’ that mourns destruction and extinction? and (3) Might a renewed
understanding of relation, agency, care and representation yield rules and principles
that provide orientation for responsible law-making?
As can be seen, different philosophical perspectives and conceptual frameworks
inform this set of questions. While convergences among those perspectives and fra-
meworks will be welcomed in the course of future inquiry, no attempt will be
made to generate a single encompassing position, and divergences of perspectives
should be acknowledged as being no less interesting and illuminating than their uni-
fication. For this reason, the bibliographical references included in this section are
intended to identify texts and positions in ways that invite sustained engagement,
without necessarily implying shared allegiance.
3 REGULATORY MODALITIES
From a regulatory perspective, the notion of ‘intra-action’ within more-than-human

collectives that comprise both the living and non-living triggers uncomfortable
questions concerning the role, risks and potentials of emerging technologies in
the Anthropocene – questions that can no longer be ignored and which invite a dif-
ferent focus on the workings of ‘human’ and ‘natural’ regulatory systems in the
Anthropocene. These systems can be seen as unfolding through co-constitutive
combinations of human and nonhuman agencies, but premised on distinct regulatory
modalities, schematically referred to respectively in terms of the ‘rule of law’ and
the ‘rule of nature’. Whereas the former refers to practices of legal design or
legal ordering traditionally perceived as emanating from social orders, the latter
refers to the agency, force and flow of matter and energy traditionally perceived
as emanating from nonhuman orders.38
37. H Enroth, ‘Declarations of Dependence: On the Constitution of the Anthropocene’ (2020)

Theory, Culture & Society 1–22.
38. The objective here is of course not to reproduce the binary between the social and the nat-
ural or between human and nature, but to assess how technology disrupts traditional under-
standings of regulatory theories that rest on such binaries.

‘Natural’ systems are essentially ‘self-regulatory’ in the sense that changes in Earth
processes are driven by nonhuman forces of chemistry, biology and physics, with
which human forces are interfering. What makes the Anthropocene distinctive is its
recognition of the degree to which combinations of such forces are exerted by humans
and their technologies. Enzymes, in that sense, can be seen as regulatory agents of
cellular change, regulating life by intra-acting in human and nonhuman cells, just
as volcanoes or solar radiation management techniques can be recognized for their
roles as agents regulating the climate, intra-acting in the chemical composition of
the atmosphere. Such agents also regulate humans and their artefacts. Even mild vol-
canic eruptions, for instance, cause displacements of local communities, and the after-
maths of large eruptions can intimately affect human behaviours and cultures across
the planet, as evidenced by the widespread socio-economic disturbances brought on
by the 2010 Eyjafjallajökull volcanic eruption in Iceland.
‘Human’ regulatory systems, by contrast, engage with the practical and moral
domains of human regulatees by aiming to steer their behaviours through a range
of legal (hierarchical), social (self-regulatory), economic (market) and technological
(architectural) modalities.39 Collective agency and intentionality are what procedu-
rally and substantively dictate both practical and moral regulatory goals as well as
the instruments adopted to pursue them. Although human and nonhuman agency
can be understood as mutually constitutive, as in the case of volcanic activity, it is
the centrality of human intentionality in ‘human’ regulatory systems that differentiates
the latter from ‘natural’ systems, in which intentionality plays no role.
Today, a number of technological innovations, such as genetic, geo- and climate-
engineering technologies, are forcing collisions between these conventionally distin-
guished ‘human’ and ‘natural’ regulatory systems in novel ways.40 Such human-deployed
technologies are capable of operating within the modalities of Earth processes, while also
being capable of being steered with the intentionality and purpose that has traditionally
been reserved for human regulatory systems. Such novel regulatory intra-action speaks to
the ‘rule of technological design’ – or ‘rule by design’ – in the sense of a capacity to rule
being built in or intra-actively emerging through technology in new ways that transcend
prevailing binary distinctions between ‘rule of law’ and ‘rule of nature’. Such a devel-
opment raises pressing questions of legitimacy, given how unlikely it will be for any
technology-driven regulatory measures that seriously compromise human individual
and collective agency to be perceived as legitimate governance actions by social, political
and judicial institutions.
Such regulatory intra-action raises the question of whether ‘human’ regulatory systems
and the ‘rule of law’ should take priority over regulatory systems constructed on ‘rule by
design’ and ‘rule of nature’. Orwellian technological responses to socio-ecological harms,
regardless of their prospects for policy effectiveness, might not survive formal or substan-
tive legal safeguards of human agency, given the rule of law’s prioritization of human
39. See L Lessig, Code: Version 2.0 (Basic Books 2006), and the wealth of commentaries
(many of which are critical) that his theory of the four modalities of regulation has generated
since.
40. Note that, for the purposes of this section, ‘technologies’ is referring primarily to those
that manipulate and intervene in Earth system processes, such as genetic- and geo-engineering.
There are of course many additional technologies whose role in the Anthropocene is not to
manipulate Earth processes, but to ‘sense’ their properties so as to generate distinct forms of
human-nonhuman relations. See, eg, Gabrys, supra (n 36); and the chapter on ‘Sensing’ in
Chandler, supra (n 36) at 85–137.

dignity and its requirement that consent dictates substance.41 Such a belief in the primacy
of ‘rule of law’ over the ‘rule of nature’, and that the ‘rule of law’ can enforce such pri-
macy, was on full display in 2015 with the (later reversed) criminal convictions that
handed down on six Italian seismologists and a government official for failing to predict
the full impact of the L’Aquila earthquake.42 The human-nonhuman co-agency at play in
such events demands a critical reconsideration of anthropocentric understandings of
‘regulation’ in the first place. More particularly, it forces one to wonder whether such
a hierarchy in regulatory modalities can or should survive when they reflect a misplaced
belief in the human monopoly on agency. Put differently, one has to wonder whether
(local) ‘rules of law’ can or should continue to trump (planetary) ‘rules of nature’, espe-
cially when the distinction between ‘rule of law’ and ‘rule of nature’ is being collapsed.
In so far as technology can add normative weight to the ‘rule of nature’, an enhanced
regulatory status for such technologies might be envisaged. The basis for that claim
resides in the constitutive quality of technology. Legal, social or economic regulatory
modalities always require interfaces to affect ‘nature’. Their effects on ‘nature’, in
other words, are always indirect, since such regulatory modalities need to be implemen-
ted, complied with and enforced before they take effect. Technologies and ‘nature’, in
contrast, are inter-operable: technological effects on ‘nature’ are direct and immediate.
Such technologies can range from the simple, such as constructing a fence to protect
wildlife from traffic, to the highly sophisticated, such as using gene-editing to protect
wildlife against anthropogenic environmental calamities. Understood in this sense, tech-
nologies intra-act within more-than-human collectives and are directly capable of both
subjecting and/or emancipating humans and nonhumans therein.
There is little question that in the Anthropocene, a technological turn is indeed tak-
ing shape. This is most evident in cases where law has failed to provide sufficient nor-
mative guidance and where it has been ineffective in its implementation. Two telling
examples of this are gene-editing techniques that aim to combat alien invasive species
or to revive extinct species, and carbon dioxide removal technologies and techniques
that aim to arrest or reverse climate change.43 What role is left, then, for laws that
41. As Raz put it, ‘observance of the rule of law is necessary if the law is to respect human
dignity. Respecting human dignity entails treating humans as persons capable of planning and
plotting their future. Thus, respecting people’s dignity includes respecting their autonomy, their
right to control their future’. J Raz, The Authority of the Rule of Law (Oxford University Press
1979) at 221. On formal and substantive theories of the rule of law, see B Tamanaha, On the
Rule of Law (Cambridge University Press, 2004) 102–26. Formal notions of the rule of law
demand respect for (‘thin’) rule by law, formal legality, or democracy (‘thick’). Substantive
notions would require individual rights (‘thin’), the right of dignity and/or justice, or social wel-
fare (‘thick’) to be respected.
42. E Cartlidge, ‘Why Italian Earthquake Scientists were Exonerated’ (10 February 2015) at
<www.sciencemag.org/news/2015/02/why-italian-earthquake-scientists-were-exonerated>.
43. On gene-editing to combat threats posed to biodiversity loss see, eg, T Harvey-Samuel,
T Ant and L Alphey. ‘Towards the Genetic Control of Invasive Species’ (2017) 19 Biol
Invasions 1683–703. On carbon dioxide removal techniques to combat climate change,
see, eg, MJ Mace, CL Fyson, M Schaeffer and WL Hare, ‘Large-Scale Carbon Dioxide
Removal to Meet the 1.5°C Limit: Key Governance Gaps, Challenges and Priority
Responses’ (2021) 12 Global Policy 67–81. On the restoration of fisheries resources, see
PD Tran, TV Pham, LT Nguyen, H Van Tran and KQ Nguyen, ‘Artificial Coral Reefs
Restore Coastal Natural Resources’ (2019) 7:3 International Journal of Fisheries and Aqua-
tic Studies 128–33. On posthuman legalities, see, eg, the Special Issue on ‘Posthuman Leg-
alities: New Materialism and Law Beyond the Human’, supra (n 18); and J Norman,

primarily target human agency and that seek to change human behaviours in order to
protect ‘nature’ through its preservation and restoration when such technologies are
evidently recreating ‘nature’ anew? How can one make sense of this as happening
within or among more-than-human collectives? How, in other words, can law be
understood to operate with such technologically mediated, post-‘natural’ and post-
‘human’ reconfigurations when both the ‘natural’ and the ‘human’ categories that
were taken as ‘given’ throughout modernity are reconstrued? Consider, for example,
the traditional, conservation-focused paradigm of environmental laws that target
harmful consequences of human agency and operate on a problematic assumption
of a stable, ‘pristine’ environmental ‘state of nature’. The process of confronting
the lengthy history of human-driven adaptation and change to human-nonhuman land-
scapes also demands a search for new and transcendent modes of human-technology-
nature regulatory cooperation that are capable of ‘becoming-with’ their ever-evolving
relations. Likewise, law’s role and utility needs to be reimagined, with a focus on how
it can mediate the interrelationships and interdependencies between human interests
and rights – with the assumed stability, predictability and certainty they currently
require – and the vagaries of Earth system forces, especially since technologies are
so often deployed as barriers between human and nonhuman forces.
Such questions might prompt objections to law exercising final authority when
sanctioning or conditioning ‘natural’ events.44 Legal scholars may also insist, how-
ever, that law has been shown to be capable of addressing seemingly insurmountable
challenges, and that it possesses a dynamic quality that can allow it to reconnect with
‘nature’ and technology after such connection had been lost.45 Surely, rather than
monomaniacally trumpeting the virtues of ‘rule by design’, there is every reason to
resist global attempts by oligopolies of powerful and unaccountable private develo-
pers of technologies to capture regulatory modalities that parasitize the ‘rule of law’.
Posthuman Legal Subjectivity: Reimagining the Human in the Anthropocene (Routledge 2021).
On legal personhood beyond the ‘human’ subject, see M de Leeuw and S Van Wichelen (eds),
Personhood in the Age of Biolegality: Brave New Law (Palgrave Macmillan 2020); VAJ Kurki
and T Pietrzykowski (eds), Legal Personhood: Animals, Artificial Intelligence and the Unborn
(Springer 2017); and the Special Issue on ‘Tradition, Myths and Utopias of Personhood’
(2017) 18:5 German Law Journal.
44. See, eg, the criminal convictions of Italian seismologists and government officials for fail-
ing to predict the L’Aquila earthquake; Cartlidge, supra (n 42).
45. The ‘challenge of regulatory connection’ is associated with law’s difficulties in responding to
newness and is extensively discussed in law and technology literature. Holocenic environmental
laws (in the same way as laws regulating technologies) need frequent reconnection with the
dynamic present that is the Anthropocene. This need arises because phenomena that appear as fun-
damentally ‘new’ (or the intensity and scale of which appear as such) encounter regulatory voids
(such as the revival of species gone extinct), but also because existing phenomena have evolved in
directions that push them outside the scope of existing regimes initially designed to regulate them
(such as the tensions between the EU Habitats Directive and the emerging practice of reintroduc-
tions of species). See L Bennett Moses, ‘How to Think about Law, Regulation and Technology:
Problems with “Technology” as a Regulatory Target’ (2013) 5 Law, Innovation and Technology
1–20; R Brownsword, Rights, Regulation and the Technological Revolution (Oxford University
Press 2008); BR Allenby, ‘Governance and Technology Systems: The Challenge of Emerging
Technologies’, in GE Marchant, BR Allenby and JR Herkert (eds), The Growing Gap between
Emerging Technologies and Legal-Ethical Oversight, vol 7 (International Library of Ethics,
Law and Technology, Springer 2011); D Collingridge, The Social Control of Technology (Pinter
1980).

Such objections are as important as they are persuasive, but they also invite counter-
arguments insisting that law’s authority and primacy have historically been grounded in a
focus on the agency and dignity of human collectives – and of particular human collec-
tives specifically – in ways that result all too often in exploitative and asymmetrical legal
relations among and between humans and nonhumans. In the day-to-day experience of
environmental activists, this asymmetry reveals itself in the skewing of burdens of
proof in the regulation of environmental risks or in anthropocentric biases in proportion-
ality tests, among other examples.46 Yet, as discussed in the previous section, the limita-
tions of anthropocentric legal ordering highlight the importance of reconceptualizing
law and legal relations in ways that can recognize the shared yet differential vulnerabil-
ities and response-abilities of both human and nonhuman actants.
Living in the Anthropocene therefore demands confronting the unsettling question
of whether the primacy of the ‘rule of law’ can remain unaffected in the face of climatic
and biodiversity catastrophes, as just some examples of Anthropocene symptoms.
These regulatory modalities claim authority from, and revolve around, the paramountcy
of human agency and dignity premised on law, market instruments and regulatory func-
tions of social norms, in disregard of nonhuman agency and normativities. Beyond the
unfolding of Anthropocenic disasters, this question also forces itself upon us by dint of
emerging technologies that have the potential directly to alter the functioning of the
Earth, thereby offering alternatives to ‘rule of law’ regulatory interventions. To what
extent, then, do such regulatory technologies de-centre human agency, human dignity
and law?
In one of the earliest articles on the ‘Anthropocene’ and its implications, Crutzen
drew attention to such questions by holding that ‘[a] daunting task lies ahead for scien-
tists and engineers to guide society towards environmentally sustainable management
during the era of the Anthropocene [which] will require appropriate human behaviour
at all scales, and may well involve internationally accepted, large-scale geo-engineering
projects, for instance to “optimize” climate’.47 In Crutzen’s vision, ‘appropriate human
behaviour at all scales’ and ‘environmentally sustainable management’ have become
the preserve of ‘scientists and engineers’, rather than parliaments and legislators.
Instead of the ‘rule of law’, Crutzen pinned his hopes on what we referred to as
‘rule by design’. Crutzen’s take on technology is a totalizing one, aimed at ruling
nothing less than the Earth itself and, as such, equally affecting yet not necessarily
benefiting all humans and nonhumans living within it. If the design remains a product
of human agency, its effects might well reach beyond human control, agency and
autonomy, as evidenced already with the rise of ‘algorithmic governmentality’.48
46. As Winter puts it: ‘As a requirement of the constitutionalisation of economic rights such
political will must be justified by a public interest and abide by the principle of proportionality.
In this way, public interests triggering restrictions on economic freedoms are in a defensive
position from the outset. They are pressed in a higher-ranking constitutional and international
legal framework and thereby become depoliticized, meaning that the political discretion of the
regulator is not anymore solely based on the government’s democratic basis but “conceded” by
the now responsible courts. […] But in relation to health and environmental protection policy
the general mood has been to ask for scientific proof of adverse effects or – where the precau-
tionary approach is accepted – at least scientific indication of risk.’ G. Winter, ‘Cultivation
Restrictions for Genetically Modified Plants’ (2016) European Journal of Risk Regulation
120–43, at 123.
47. PJ Crutzen, ‘Geology of Mankind’ (2002) 415 Nature 23, at 23.
48. A Rouvroy and B Stiegler, ‘The Digital Regime of Truth: From the Algorithmic Govern-
mentality to a New Rule of Law’ (2016) 3 La Deleuziana 6; Amoore, supra (n 36).

Technologies might increasingly connect and affect humans and nonhumans by reg-
ulating both, at once, in pursuit of an Earth that remains habitable into the future. Such
ideals highlight how possible techno-regulatory responses to threats to diverse forms
of (non)human life on Earth clash with the formal and substantive pillars of the ‘rule
of law’.
Has it become inevitable today to accept transgressions of the ‘rule of law’ by the
‘rule by design’? Will such developments be part of the ‘new normal’ in the Anthro-
pocene, in the same manner as living conditions are being increasingly rhythmed by
the ‘rule of nature’ in the form of pandemics, forest fires, droughts, floods, hurricanes,
pests, crop failures and other anthropogenic calamities? What does this imply for the
‘value’ ascribed to the ‘rule of law’ and its presumed ability to regulate what is tra-
ditionally conceived as an externalized, passive and objectified ‘nature’? Is it the case
that the viability of future (non)human life itself is being risked in order to cling on to
what is considered to be the essence of human dignity – namely human autonomy and
agency? Can an ethics of care, or precautionary legal articulations of such ethics, offer
any directions towards answering these questions, and do they incentivize or discou-
rage recourse to technologies like solar radiation management and gene-editing?
In other words, how can such ethics inform appropriate socio-political debates and
decision-making towards developing non-totalizing ‘technologies of humility’,
deployed with care, which attend to differential yet entangled response-(in)abilities
of humans and nonhumans in more-than-human collectives, instead of pursuing tota-
lizing ‘technologies of hubris’?49
Asking these uncomfortable questions is key to a contemplation of the role, risks
and potentials of emerging technologies such as de-extinction, climate engineering
and gene-editing in the Anthropocene. Besides the fears of uncertain risks that such
technologies pose to human and nonhuman life in the long run, and the expansion –
instead of suspension – of modernist ideals of Promethean human potency and control
over the nonhumans that is associated with them,50 there might also be a lingering
aversion to the idea of relinquishing human monopoly over agency itself, at the
risk of letting techno-regulations intrude into anthropocentric notions of agency and
regulation.51 These questions and confrontations are daunting yet pressing,52 given
49. S Jasanoff, ‘Technologies of Humility’ (2007) 450 Nature 33; and S Jasanoff, ‘Humility
in the Anthropocene’ (2021) 18:6 Globalizations 839–53.
50. On how such technological ideals of mastery are embedded in imperial, colonial and racial
legacies, see TJ Demos, ‘To Save a World: Geoengineering, Conflictual Futurisms, and the
Unthinkable’ (e-flux journal, October 2018). Demos critically analyses geoengineering’s
techno-utopianism in relation to Arthur Jafa’s 2016 video-installation ‘Love is the Message,
the Message is Death’, which Demos sees as foregrounding Indigenous and anticolonial futur-
isms that are diametrically opposed to the ‘future’ of a geoengineered planet. On this dissonance
with geo-technology, see also F Neyrat (trans. D Ross), ‘The Black Angel of History: Afro-
futurism’s Cosmic Techniques’ in Y Hui and P Lemmens (eds), Cosmotechnics: For a Renewed
Concept of Technology in the Anthropocene (Routledge 2021) 119–33; and A Mitchell and
A Chaudhury, ‘Worlding Beyond “the” “End” of “the World”: White Apocalyptic Visions
and BIPOC Futurisms’ (2020) 34:3 International Relations 309.
51. On geo-constructivism and ecomodernism as ‘Promethean politics’, see also F Neyrat,
The Unconstructable Earth: An Ecology of Separation (Fordham University Press 2018).
52. On the emergent debate about geoengineering and its politics from within a radical left
tradition, see also HJ Buck, After Geoengineering: Climate Tragedy, Repair, and Restoration
(Verso 2019). But see also the call for an International Non-Use Agreement on Solar Geo-
engineering issued on 17 January 2022, at <https://www.solargeoeng.org/>.

the (in)ability of the ‘rule of law’ – and ‘human’ agency alone – to offer a ‘safe oper-
ating space’ in the Anthropocene.53
4 INSTITUTIONAL ARCHITECTURES AND COMPLEXITY
The Anthropocene, whether viewed temporally as an enduring and unfolding

‘event’, 54 a ‘rupture’ in Earth and life science paradigms, 55 or a historical
‘epoch’,56 presents far-reaching conceptual and normative challenges for understand-
ing the scope and scale of what it represents and portends for the institutions of law
and governance. In this context, the institutional aspect of law refers to the actual and
regular legal practices that are organized, authorized and routinely implemented and
enforced, whether one is speaking about domestic, international, regional or non-state,
transnational systems.57 As indicated in the first section above, it is still unclear at a
fundamental normative level how intra-active, more-than-human collectives do or
could manifest in reconfigured notions of legal and political spatiality, temporality
and subjectivity or personhood. Beyond this, however, different sorts of questions
abound about law’s role in creating and perpetuating the destructive conditions of
the Anthropocene, as well as how law should anticipate and respond to what present
indicators augur for possible worlds to come. Such questions are driven by an aware-
ness that more and greater transformations are on the horizon, but also that it is
unknown what shapes these transformations will take and how their significance
for law and governance should be understood, including what law’s role is or should
be in anticipating, triggering or responding to them. The CitA project treats these as
new lines of inquiry about past, present and (im)possible future roles of law, along
with explorations of the interpretive and prescriptive challenges that are posed by
complex institutional and administrative structural responses to change, uncertainty
and unpredictability. Trust in law’s potential for transformative change in governance
must be tempered by acknowledgement of its exploitive past and present, as well as of
the architectural limitations its current structures impose on possibilities for radical
transformations to come.
Forward-looking visions of the Anthropocene as an ‘emerging crisis’, or a
moment of ‘rupture’,58 can obscure or deflect attention away from the historically
contingent and contributory role that law has played in the development of the struc-
tures, institutions, processes and paradigms of thought that have enabled the
53. Rockström et al., supra (n 3).

54. Bonneuil and Fressoz, supra (n 7). Environmental scientists recently suggested viewing
the Anthropocene as an ‘ongoing geological event’. AM Bauer, ‘Anthropocene: Event or
Epoch?’ (2021) 597 Nature 332.
55. C Hamilton, ‘The Anthropocene as Rupture’ (2016) 3 The Anthropoene Review 93.
56. SL Lewis and MA Maslin, ‘Defining the Anthropocene’ (2015) 519 Nature 171.
57. Here, we seek to distinguish institutional aspects of law from ideational, cultural, and
formal-doctrinal considerations. According to pragmatist John Dewey, for a set of phenomena
to be institutionalized is to say that it ‘involves a tough body of customs, ingrained habits of
action, organized and authorized standards and methods of procedure’. JA Boydston (ed),
The Later Works of John Dewey, 1925–1953: Volume III 1927–1928 (Southern Illinois Univer-
sity Press 2008) at 153. See also N MacCormick, ‘Law as Institutional Fact’ in N MacCormick
and O Weinberger (eds), An Institutional Theory of Law: New Approaches to Legal Positivism
(Springer 1986) at 49.
58. Hamilton, supra (n 55).

Anthropocene’s emergence.59 Analyses that disregard law’s deep historical roots

implicitly situate law and its institutions in a position of innocence and invite
overly-quick assumptions of its suitability as a powerful, objective and neutral
forum for reacting and adapting to the uncertainties and challenges associated
with the Anthropocene. Instead, legal analysis must ask how and why certain
human societies and ways of worlding have constructed their legal frameworks so
as to facilitate and promote subjugative and exploitative relations within more-
than-human worlds. It must also account for the problematic treatment of Indigen-
ous peoples and other communities whose knowledges have long identified and
critiqued unsustainable and exploitative relationships.60 Inquiring into the historical
contingency of the present ‘capitalist world-ecology’61 opens up critical questions
about the sacrosanctity, inevitability and permanence of law, as well as the asymme-
trical distribution of the consequences of environmental degradation that it enacts.62
To take one example, sovereignty is an established, but historically contingent,
legal principle whose sacrosanctity as an elemental principle of both domestic and
international public law is worth re-evaluating in light of the Anthropocene.63 Built
into its membranes is a depiction of the Earth as a collection of territorial bundles
of natural resources to be exploited by each respective state.64 It has been relied
upon as justification for past colonial projects of ‘natural’ and ‘(in)human’ resource
extraction around the ‘Globe’, as well as for present extractivist projects within
national territories.65 Law’s role in instituting such exploitations must therefore be
unpacked, in particular the relations that it enacts between humans and nonhumans
in pursuit of paradigms of ‘eternal growth’.66 Law’s complicity invites questions
about which of its properties are salvageable for enabling caring relations in more-
than-human worlds, while law’s historical contingency invites other questions
about which conditions are changeable or necessarily permanent and inherent to law.
From a future-oriented perspective, law’s capacity to change and to respond to pla-
netary transitions is also worth evaluating. These considerations relate to long-lasting
debates about how law intra-acts with other non-legal and more-than-human
59. Bonneuil and Fressoz, supra (n 7).

60. For an appeal to the value of Indigenous peoples’ knowledges in understanding human-
nature relations in the Anthropocene, see C Yumie, A Inoue and P Franco Moreira, ‘Many
Worlds, Many Nature(s), One Planet: Indigenous Knowledge in the Anthropocene’ (2016)
59:2 Revista Brasileira de Política Internacional.
61. Moore, supra (n 14); and E DeLoughrey, J Didur and A Carrigan (eds), Global Ecologies
and the Environmental Humanities: Postcolonial Approaches (Routledge 2015).
62. Yusoff, supra (n 8); AP Harris, ‘The Treadmill and the Contract: A Classcrits Guide to the
Anthropocene’ (2016) 5 Tennessee Journal of Race, Gender & Social Justice 1; R Nixon, Slow
Violence and the Environmentalism of the Poor (Harvard University Press 2013).
63. K Bosselmann, ‘Environmental Trusteeship and State Sovereignty: Can They Be Recon-
ciled?’ (2020) 11 Transnational Legal Theory 47; D Matthews, ‘Reframing Sovereignty for the
Anthropocene’ (2021) 12:1 Transnational Legal Theory 44–77.
64. V De Lucia, ‘Rethinking the Encounter Between Law and Nature in the Anthropocene:
From Biopolitical Sovereignty to Wonder’ (2020) 31 Law and Critique 329.
65. A Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge
University Press 2004). For a critique of the category of the ‘Globe’, see D Chakrabarty,
The Climate of History in a Planetary Age (University of Chicago Press 2021); and B Latour,
‘Onus Orbis Terrarum: About a Possible Shift in the Definition of Sovereignty’ (2016) 44:3
Millennium: Journal of International Studies 305.
66. Moore, supra (n 14).

phenomena often framed as ‘systems’. To what extent, if at all, can systemic under-
standings of law, viewed as a structural and normative systemic ordering, help in recon-
figuring how law relates to other non- or more-than-legal ‘systems’?67 How can actual
institutional designs constrain or facilitate transformative changes in response to dis-
ruptions to Earth processes? Claims that law must become more ‘adaptive’ to match
its increasingly unstable ‘externalities’68 struggle with accounting for and reconciling
law’s constitutive role in creating and fostering these instabilities in the first place.
Moreover, further challenges arise with the need to combine multiple and contradic-
tory scalar lenses, be they planetary, global, international, transnational, regional,
local or individual, when reconfiguring collective governance responses to attend to
more-than-human concerns.69 Nor is it clear how, if at all, ‘planetary’ responses could
unfold from better and closer integration and alignment of these multiple and overlap-
ping scalar lenses, or whether institutional changes may instead evolve on more
organic, ungoverned and chaotic lines. Questions of degree are also prescient for cri-
tically examining the extent to which the instruments and institutions of domestic,
international and transnational legal orderings are capable of overcoming their origins
as tools of exploitation and dominance over ‘nature’.70 Is the degree of transformation
a matter of architecture and technique, such as by giving ‘voice’ to the ‘voiceless’,71
or is it something more fundamental, a complete transformation away from the legal
form and political economy of natural resource exploitation?72 How do increasingly
67. See, eg, J Dryzek, ‘Institutions for the Anthropocene: Governance in a Changing Earth Sys-
tem’ (2014) 46 British Journal of Political Science 937; R Ison, ‘Governing in the Anthropocene:
What Future Systems Thinking in Practice?’ (2016) 33 Systems Research and Behavioural Science
595; F Berkes, ‘Environmental Governance for the Anthropocene? Social-Ecological Systems,
Resilience, and Collaborative Learning’ (2017) 9 Sustainability 1232; J Donges et al., ‘Closing
the Loop: Reconnecting Human Dynamics to Earth System Science’ (2017) 4:2 The Anthropocene
Review 151; G Garver, ‘A Systems-based Tool for Transitioning to Law for a Mutually Enhancing
Human-Earth Relationship’ (2019) 157 Ecological Economics 165.
68. J Viñuales, The Organisation of the Anthropocene: In Our Hands? (Brill 2018) at 66.
69. On the complexity of ‘scale’ in the Anthropocene, see G Dürbeck and P. Hüpkes (eds),
Narratives of Scale in the Anthropocene: Imagining Human Responsibility in an Age of Scalar
Complexity (Routledge 2022). See, eg, the contrasting local and global approaches in S Pincetl,
‘Cities in the Age of the Anthropocene: Climate Change Agents and the Potential for Mitiga-
tion’ (2017) 20 Anthropocene 74; L Karaliotas and G Bettini, ‘Urban Resilience, the Local and
the Politics of the Anthropocene: Reflections on the Future of the Urban Environment’ in
K Archer and K Bezdecny (eds), Handbook of Cities and the Environment (Edward Elgar
2016); LJ Kotzé, Global Environmental Constitutionalism in the Anthropocene (Hart 2016).
See also the contrasting planetary and global approaches in Chakrabarty, supra (n 65); and
N Clark and B Szerszynski, Planetary Social Thought: The Anthropocene Challenge to the
Social Sciences (Polity 2020). On the reconfiguration of an ‘individual’ perspective, see
SF Gilbert, J Sapp and AI Tauber, ‘A Symbiotic View of Life: We Have Never Been Indivi-
duals’ (2012) 87 The Quarterly Review of Biology 325; and ZI Jackson, Becoming Human:
Matter and Meaning in an Antiblack World (New York University Press 2020).
70. For an example in the context of the ecosystem approach in international environmental
law, see V De Lucia, ‘Bare Nature: The Biopolitical Logic of the International Regulation of
Invasive Alien Species’ (2019) 31 Journal of Environmental Law 109.
71. RS Abate, Climate Change and the Voiceless: Protecting Future Generations, Wildlife,
and Natural Resources (Cambridge University Press 2020).
72. I Feichtner, ‘Law of Natural Resource Extraction and Money as Key to Understanding Global
Political Economy and Potential for Its Transformation’, in PF Kjaer (ed), The Law of Political
Economy: Transformation in the Function of Law (Cambridge University Press 2020); I Feichtner

popular calls for reform, such as for law to recognize the legal personhood of ‘nature’
and ecosystems, interact with the deep grains of its exploitative structures that main-
tain and preserve personhood as a privileged instrument by which human and corpo-
rate actors assert mastery over and dispossess human and nonhuman others through
property relations?73 Are market-oriented governance interventions, such as the chan-
nelling of capitalist tools and finance to prevent deforestation under the REDD+
framework, adequate institutional frameworks for moving beyond capitalizing rela-
tions within more-than-human worlds and towards a relationality premised on differ-
ential (in)abilities to act in response to shared vulnerabilities?74
These avenues of research only begin to partially lay out the terrain of issues that is
stimulated by the Anthropocene’s encounter with law, but they constitute pivotal
questions for understanding the governance and institutional character of what the
Anthropocene condition poses for the study of law. It is far from obvious what
kind and degree of transformation is required of existing and future legal and institu-
tional frameworks and arrangements, nor how hobbled they are and will be by their
historical legacies. Nor is it easily discernible exactly how interests will conflict in
ways that facilitate or impede alternative modes of relating in more-than-human
worlds. It is by exploring these questions that we hope to take stock of reconfigura-
tions in legal thought and practice that might potentially enhance law’s ability to navi-
gate radical socio-ecological transformations for the Anthropocene.
5 CONCLUSION
The Anthropocene, and the radically reconfigured depiction of human-nonhuman rela-

tions which it entails, provokes a fundamental reconceptualization of constitutionalizing
modalities, processes and institutions. The ‘Constitutionalizing in the Anthropocene’
project questions how it is possible to constitutionalize living within more-than-human
collectives with distinct, distributed and differential agencies and vulnerabilities. It lays
out a far-reaching research agenda for rethinking the constitutive role of law along three
dimensions.
First, the recharacterization of relations between humans and nonhumans as being
premised on caring and differentiated response-(in)abilities requires a reconceptuali-
zation of the legal nature of these relationships, including a re-evaluation of freedom
as consistent with entangled relations, rather than individual autonomy and separa-
tion. Reconceptualizing legal relations along such lines will likewise impact the
and S Ranganathan (eds), ‘Symposium: International Law and Economic Exploitation in the Glo-
bal Commons’ (2019) 30 European Journal of International Law 541. See also G Kallis et al., The
Case for Degrowth (Wiley 2020); JB Schor and AK Jorgenson, ‘Is It Too Late for Growth?’
(2019) 51 Review of Radical Political Economics 320.
73. J Bennett, Being Property Once Myself: Blackness and the End of Man (Harvard University
Press 2020); R Nichols, Theft Is Property! Dispossession and Critical Theory (Duke University
Press 2019); and E Blanco and A Grear, ‘Personhood, Jurisdiction and Injustice: Law, Colonial-
ities and the Global Order’ (2019) 10 Journal of Human Rights and the Environment 86.
74. It is also noteworthy how REDD+ is disciplining Indigenous peoples as stewards of a glo-
bal ‘green economy’. See J Dehm, Reconsidering REDD+: Authority, Power and Law in the
Green Economy (Cambridge University Press 2021); J Dehm, ‘Indigenous Peoples and
REDD+ Safeguards: Rights as Resistance or as Disciplinary Inclusion in the Green Economy?’
(2016) 7 Journal of Human Rights and the Environment 170.

conceptual understanding of legal and political representational practices, including

the struggles that amount to the constitution of collective selfhood. How can such
practices involve the participation of nonhumans as not only the ‘we who matter’
but also the ‘we authors’ of collective law-making?
Second, accompanying the Anthropocene is the transcendence of the two tradi-
tional modes of regulation: the so-called ‘human’ and ‘natural’ regulatory systems.
With the development of technologies capable of directly intervening and disrupting
Earth processes (such as de-extinction, geoengineering and genetic modification), and
the corresponding ability to intentionally alter Earth processes for regulatory effects,
we identify the challenges that lie in re-evaluating the role that law does and ought to
serve in facilitating or restraining such technological modes of regulatory interven-
tion. The prospect of these emerging regulatory activities dramatically expands the
scope of contemporary regulatory discourses, bringing into question the longstanding
importance of human agency and dignity in legal and regulatory frameworks.
Third, the Anthropocene calls into question the institutional character of law and its
relationship – historic, present and future – with the exploitation of life. Assessments of
law’s role in ushering structural transformations towards non-exploitative relations
with human and nonhuman life must consider how much and which properties of
law are salvageable. Likewise, we question whether the reconceptualized relations of
the Anthropocene require new architectures or techniques of representation and collec-
tive decision-making – giving nonhuman lifeforms ‘personhood’ – or whether they
demand a more fundamental transformation away from the historic and enduring
co-constituted legal-economic systems of exploitation.
In sum, this intervention amounts to the establishment of a research agenda for
working through the possibilities for Constitutionalizing in the Anthropocene. Rather
than identifying how law can ‘save the planet’, we aim to untangle the more fundamen-
tal questions as to how law shapes the possibility and conditions of life, and which
shifts in legal thought and practice would allow for and enact forms of living that
embody the entangled, differentiated and vulnerable collectives that characterize
human-nonhuman relations in the Anthropocene.


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Journal of Human Rights and the Environment, Vol. 15 No. 1, March 2024, pp.

Constitutionalizing in the Anthropocene

possibility of ‘ruling by design’, by technologically mediating ‘natural’ forces or Earth sys-

Keywords: constitutionalism, Anthropocene, more-than-human collectives, emergent

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reforming or strengthening international law, prescribing instead a whole new legal

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2 CONCEPTS AND FOUNDATIONS

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15. Moore, supra (n 8); Haraway, supra (n 9).

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responsiveness of entangled agency presupposes a more original passivity, in the form

20. M Merleau-Ponty, Phenomenology of Perception, trans. D Lande (Routledge 2013);

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By remaining open to potential enactments of intra-active human-nonhuman relations,

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Finally, such reconsidering of concepts of relation, agency, care and representation

From a regulatory perspective, the notion of ‘intra-action’ within more-than-human

37. H Enroth, ‘Declarations of Dependence: On the Constitution of the Anthropocene’ (2020)

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4 INSTITUTIONAL ARCHITECTURES AND COMPLEXITY

The Anthropocene, whether viewed temporally as an enduring and unfolding

53. Rockström et al., supra (n 3).

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Anthropocene’s emergence.59 Analyses that disregard law’s deep historical roots

59. Bonneuil and Fressoz, supra (n 7).

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The Anthropocene, and the radically reconfigured depiction of human-nonhuman rela-

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conceptual understanding of legal and political representational practices, including

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