JURIS PART 3- CRITICAL LEGAL STUDIES
CONTENTS
Prof Jaco’s Section ................................................................................................................................................... 2
MATTHEWS – FROM GLOBAL TO ANTHROPOCENIC ASSEMBLAGES: RE-THINKING TERRITORY,
AUTHORITY AND RIGHTS IN THE NEW CLIMATIC REGIME ............................................................................... 2
POTTAGE – HOLOCENE JURISPRUDENCE ......................................................................................................... 9
LENKABULA- BEYOND ANTHROPOCENTRICITY .............................................................................................. 13
RAMOSE- ECOLOGY THROUGH UBUNTU ........................................................................................................ 15
Judge Davis’ Section ............................................................................................................................................. 16
Klare & Davis ‘Critical Legal Realism in a Nutshell’. ..................................................................................... 17
Tembeka Ngcukaitobi- The Birth of Constitutionalism ................................................................................ 19
MADLINGOZI – DISCOURSE AND DEBATE ....................................................................................................... 22
, PROF JACO’S SECTION
Essay Question:
It is 2030. You are an advocate in a pre-trial hearing in which a large coalition of environmental NGOs that work in
“post”-colonial countries (including in South Africa) (collectively, the applicants) have brought an application to the new
International Court of Planetary Justice (ICPJ), for a structural interdict ordering the United States, the United Kingdom,
the European Union and the People’s Republic of China (collectively, the Respondents) to immediately implement a
carbon neutral emissions policy (for which it will be accountable annually to the Court), while at the same time paying
1% of their annual GDP over to the coalition for deposit into a Climate Reparation Fund (overseen by the Court) which
Fund will be used to finance climate change relief work in the postcolonial jurisdictions exclusively.
You represent the South African NGOs in the coalition. You are required to present an argument for the legal
responsibility of the respondents in the form of a concise legal opinion essay (not longer than 1500 words). Your opinion
should focus on the legal responsibility of, particularly, the United Kingdom and the European Union. Assume that
there is as yet no internationally enforceable legal instrument in place that founds the applicants’ cause of action on
the basis of rights. Assume, further, that the domestic laws of the applicants (in your case, South Africa) has persuasive
value in the ICPJ.
The essentials you need to cover:
we don’t have rights, so let’s refer to obligations instead (Matthews)
why is appropriation responsible for the Anthropocene, and why is it worthy of being a ‘crime’, and why do
the respondents fit this category? (Schmitt and Pottage)
what existing authority is there? Ubuntu (LenkaBula and Ramose)
MATTHEWS – FROM GLOBAL TO ANTHROPOCENIC ASSEMBLAGES: RE -THINKING TERRITORY, AUTH ORITY
AND RIGHTS IN THE NE W CLIMATIC REGIME
THESIS: LEGAL AND POLITICAL THEORY IS URGENTLY IN NEED OF A PARADIGM SHIFT IN ORDER TO BECOME BETTER ABLE TO RESPOND
TO THE CHALLENGES OF THE ANTHROPOCENE.
INTRODUCTION
Matthews does three things in the introduction:
1) They state the problem (two parts);
2) They state the thesis / argument and its itinerary (how it proceeds);
3) They state the purpose / aim of the argument.
The Problem
Part 1 That legal and political theory has not dedicated sufficient energy to the challenges presented by the dark side of globalization:
the reality of a dramatically changing planet.
This reality of a dramatically changing planet has been given the name of the Anthropocene.
o The ‘Anthropocene is the postulation that the scale of human activity on Earth has essentially itself become a force of nature.
In other words, the source of this dramatically changing planet is the scale of human activity.
We have entered a new epoch.
Our previous / still current geological epoch was / is known as the Holocene, which started approximately 11 000 years ago.
o The key feature of the Holocene is that it was regarded as a period of relative climatic stability between ice ages.
o Recent evidence, however, show that there are climatic shifts in the Holocene, but the key difference is that the drivers of
these climatic shifts over the last 10 000 years have been the result of natural forces – human activity did not have a significant
impact on the Earth’s climate system until now.
Part 2 That the ‘vast literatures’ that have formed around the assessment of social life under conditions of neoliberal globalisation,
‘continues to bear the distinctive hallmarks of modern political thought’
, champion individual autonomy and equality, whilst seeking to limit any encroachment on such freedom and equality through
general norms and objective standards.
Ultimately, the view of these literatures continue to maintain that ‘human actors have the capacity to break free from a range of
‘natural attachments’ in order to create new political forms that respond to the shifting sands of social and economic life.’
These literatures continue to work within the modern worldview of nature as the ‘backdrop ontology’: ‘the natural world is
conceived as a largely immobile scenography that simply provides the staging for human political dramas.
But the Anthropocene tells us that the backdrop is beginning to move, the scenery and props have come to life
What Matthews is on about in this section is thus the old Greek distinction between ‘nature’ and ‘culture’, or between physis and
nomos.
This distinction lies at the core of modern legal and political thought.
o For thousands of years, the assumption has unbelievably been that, no matter what we do as a species, whether to nature
or to each other, nature will be just fine, at least fine enough to continue to support our actions on the stage.
o The Anthropocene thesis tells us not only that ‘human communities are acting within, not set against, a range of
biogeochemical processes revealing the earth’s capacity to both affect and be affected by human collective action’, but also
that this ‘human collective action’ has been devastating for the climate system that has supported human life for thousands
of years
Wallace-Wells in The uninhabitable Earth (2019): ‘We have already exited the state of environmental conditions that allowed the
human animal to evolve in the first place,’ ‘in an unsure and unplanned bet on just what that animal can endure. The climate system
that raised us, and raised everything we now know as human civilisation, is now, like a parent, dead.’
The problem is thus not only that legal and political theory has not dedicated itself sufficiently to the challenges of the
Anthropocene, it is also that legal and political theory remain dominated by the modernist paradigm. For Matthews, this paradigm
of individual autonomy, equality and rights is not going to get us very far when it comes to thinking through the challenges that the
Anthropocene presents for us as a species-being.
The thesis / argument and how it proceeds
New theoretical resources are needed to both ‘characterise the problem at hand’ and to ‘indicate paths towards possible action’
Matthews will unpack some of the challenges by subjecting the typically modernist triad of territory, authority and rights (TAR) to
‘renewed critical attention’ - Territory, authority and rights are taken to be the fundamental tenets of modern legal and political
thought.
They are taken to be universal / transhistorical and together they have been treated as a framework through which social change
can be understood (Sassen).
TAR has given rise to a bifurcated frame of reference - the global and the national.
Matthews argues that what he calls the earthly has intruded into the prevailing debates about the evolution of legal, political and
social life.
His main thesis is that the triad of territory, authority and rights ‘lose their supremacy in the context of the new climatic regime’
NB! Matthews is not arguing that TAR should be thrown out altogether. Rather he is agitating for the extension and supplementation
of TAR ‘in ways that help to attend to the complex interactions between human social forms and a range of ‘material,
biogeochemical processes and systems within which, the Anthropocene thesis tells us, human life is tightly knit.’
In place of the modernist concept of territory, Matthews will consider the concept of terrain which emphasise the dynamic and
processual qualities of lived and material space.
In place of authority at the scales of national and / or global, he will consider the city ‘both as an alternative scale to the
global/national but also as a means through which we can explore the interweaving of human and nonhuman agencies that is
increasingly shaping the parameters of political life’.
Instead of rights, Matthews suggest that we focus on obligations through which we can ‘reanimate nonmodern accounts of
normativity that stress an existential and material rootedness in place, environment and social relations in ways that an ever-
expanding ‘rights talk’ fails to capture’. (The modern account of normativity proceeds, precisely through this ever-expanding ‘rights
talk’).
The purpose / aim of the argument Developing a ‘new, ecologically attuned, critical jurisprudence’
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