Constitutionalizing in the Anthropocene

Abstract

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 reconceptualization 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 representational 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 Anthropocene, and the role that law plays in this regard. Such technologies have given rise to the possibility of ‘ruling by design’, by technologically mediating ‘natural’ forces or Earth system 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 necessary 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.