In his new book (Brill, July 2018), Jorge E. Viñuales explores the legal dimensions of the new geological epoch called the Anthropocene, in which humans are the defining force. More details follow in this interview on The Organisation of the Anthropocene: In Our Hands?.

You say that “law as a technology of social organisation has been neglected in the otherwise highly technology-focused accounts by natural and social scientists of the drivers of the Anthropocene”. Why this negligence?

In part because the perception of law from other disciplinary prisms, whether natural or social sciences or even humanities, is that of an arcane black box left to technicians to operate. So, very few people outside lawyers pay genuine attention to law and, when they do so, they often misunderstand its nature and operation. But the main reason is that we lawyers have used a fairly rudimentary approach to interdisciplinary research. Environmental issues are a particularly suitable vantage point to see how simplistic our “interdisciplinary” attempts are. By way of illustration, we still see climate change as a classical instead of a complex system. The implication is that we falsely believe that you can handle the system as if it were, say, water: you heat it (in my analogy, you add greenhouse gases to the troposphere) and it becomes vapour, then you cool it (in the analogy, you remove greenhouse gases from the troposphere) and it becomes liquid again. But the climate system does not work that way, at least not in a human timescale. Once you push it out of its initial equilibrium, removing greenhouse gases is not going to bring it back to where it was. It’s more like burning a piece of paper: it becomes ashes, and it will only become paper once those ashes have fertilised a tree and the tree produce has been turned into paper. Yet there are many assumptions in policy accounts that one can go back and forth as if the climate system behaved like water phase transitions. It is a real problem. Closer interactions among different disciplinary backgrounds are not just useful, but necessary if we want to avoid becoming irrelevant or, what is similar, self-referential. This is already happening quite a lot in international law but also in macroeconomics and several other disciplines. We need to get much better. Genuine interdisciplinarity has yet to unleash its potential in legal analysis. 

What do you mean when you say that “there is a tendency to assume that the role of law is to tackle the negative externalities of transactions (e.g. their environmental or social implications) rather than the core of the underlying transactions, i.e. the organisation of production and consumption processes”?

If you look at law as a broad technology from the prism of transactions/externalities (in the Pigouvian or other modern accounts), what you notice is that legal systems around the world (with the exception of a number of aboriginal or traditional law systems) organise first the underlying transaction (i.e. the production processes) through a range of legal techniques such as economic freedoms, property rights, corporate law, contract law, trade and investment law, and labour law (historically slavery), and only then do they add a somewhat secondary layer which is intended to mitigate the negative implications of such processes without interfering with them. For environmental externalities, that additional layer is environmental law. Of course, one cannot make such a point without first reviewing a vast amount of legal systems to see whether such hypothesis is confirmed. I have done that with a network of colleagues in another research project, the results of which are forthcoming in two books, an Oxford Handbook of Comparative Environmental Law  (edited with Emma Lees) and a monograph on the Architecture of Comparative Environmental Law. From the perspective of the Anthropocene, that means simply that the foundations of legal organisation prioritise production, even unbridled production, over sustainability. This is also why sustainable development can only be a political slogan. Yet it is possible to intervene legally in the transaction itself rather than touching the externality. The main example is slavery. Slavery was key for the Industrial Revolution to happen in England (rather than in the Yangzi delta) because, as one prominent historian has shown – based on more detailed studies from other colleagues – England could exchange expensive manufactures for raw materials produced in the Americas by means of slaves. The initial reaction to the inhumanity of slavery was to improve slaves’ condition while keeping them under the slavery system: that is a typical example of treating the mere externality. Then, the British anti-slavery movement slowly gained ground and led to the abolition of slavery or, in other words, put an end to a key aspect of the production process. You could say the same for some far less controversial transactions. Do we really need gold or diamond mining? Mitigating the externalities of open-pit cyanide mining is a mockery of environmental protection. You could simply abolish it or reduce it to the extreme without interrupting vital social processes. That day will come, I hope.

You also argue that the focus on externalities “fails to unveil the role of law in prompting, sustaining and potentially managing the processes that have led to the Anthropocene”. Can you tell us more about this role?

It is related to what I said earlier. Without certain legal concepts, the Industrial Revolution, which is the process that has turned humans – at least some humans – into a force of geological proportions, would have unfolded differently. The clearest examples are intellectual property rights (for the steam engine, for instance) and, even more, the corporate form and the slave trade. International law is particularly interesting in this regard for law as a whole because both the corporate form and the slave trade were deeply informed by what we would call today, somewhat anachronistically, international law. Indeed, the corporate form grew out of the “companies” formed by colonial powers to conquer territory abroad and, without the corporate form, the capital accumulation that turned humans into a geological force would have been more difficult to achieve. I cannot say that there is a causality relation, so I use the terms “prompting” and “sustaining”. The corporate form prompted and sustained the advent of the Anthropocene. Similarly, the mechanism of triangular trade (slaves from Africa to the Americas, raw materials from the Americas to England, manufactures from England to the Americas) that enabled the Industrial Revolution rested on legal concepts of conquest, slave condition, the UK-claimed freedom of the seas, infrastructure investment abroad, trade flows, and others, the specific form of which organised the mechanism – i.e., gave it some form of regularity and predictability in the Weberian sense – that was to turn humans into a geological force in less than three centuries.

Sincerely, are you optimistic about the capacity of Homo œconomicus to switch to a sustainable way of life?

One colleague famously wrote that it is easier to imagine the end of humanity than the end of capitalism. In my view, capitalism can itself be transformed and move away from what has caused part of the pressure on the Earth system, namely fossil fuels, overconsumption, etc. In a recent article written with an interdisciplinary team and published in Nature Climate Change, we have used a non-normative integrated assessment model of the world economy, technology diffusion and the global climate system to show that demand for fossil fuels is going to decline by 2035, even if no new climate policies are adopted to meet the targets of the Paris Agreement. The reason is technological change or, in other words, the very forces of capitalism that are transforming production systems. This article has been very widely reported in the major media and, importantly, it shows that climate change is not a prisoner’s dilemma. If you do not invest to transform your economy away from fossil fuels, you lose, because your fossil fuel industry becomes stranded with major macroeconomic implications, even if you are as big as the United States. For too long, we have been arguing and teaching that climate change is a prisoner’s dilemma, where some states can “free ride” the efforts of others. That may have been true in the past, but today it is a misrepresentation of reality, with very misleading policy consequences – yet another example of the need for more and deeper interdisciplinarity!

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Full citation of Professor Viñuales’s new book:
Viñuales, Jorge E. The Organisation of the Anthropocene: In Our Hands? Leiden: Brill, 2018.

Interview by Marc Galvin, Research Office.