Sustainability and private law? Let’s do it together – crowdsourcing ideas and materials

The biggest challenge of the 21st century is undoubtedly the question of how to tackle the effects of a rising population, expanding industrialisation and growing environmental degradation. Apart from an ever complex world, there are externalities that are the result of the way humankind has been treating its planet in the last centuries. The rules of private law play an instrumental role in this.

Two examples are freedom of ownership (including the substantive concept of ownership) and freedom of contract. These principles, which were born from a liberalist conception of freedom and individualism, have brought many of us incredible wealth and prosperity. However, at the same time, we have developed a system in which growing inequality shows us the negative side of these developments.

In 2015, the UN adopted 17 sustainable development goals (SDGs) to guide the development of our society and especially the way in which we treat our planet. Although these are non-binding targets, all countries that are members of the UN are expected to take these SDGs into account when making law and policy.

Private lawyers, because they deal with many of the building blocks of our society, have a role to play in this too. Ownership viewed as the primary right to extract (to use Marjorie Kelly’s terminology) rather than also to regenerate is causing many negative effects. A primary example of this is offered by the earthquakes caused by the excavation of natural gas by the Nederlandse Aardolie Maatschappij (NAM) in the province of Groningen at the moment. Apart from the liability issues, there is a strong case to be made that NAM, and the Dutch State, are not properly taking their responsibility as owner from this SDG-inspired perspective.

Many private lawyers are already working on this issue. Natural scientist Fritjof Capra and legal scholar Ugo Mattei, in their highly interesting book Ecology of Law, bring much of these issues to our attention in a compelling and convincing manner. They show how the commons before the introduction of many of our civil law codifications, governed by local customary law, provided much more sustainable solutions for communities and therefore also for individuals. Capra and Mattei argue for a new, more holistic, view of our legal systems in parallel with developments in other fields of science, such as the natural sciences. Marjorie Kelly in her seminal book on Owning the Future provides fantastic examples of how this can be done and how ownership can also be used for community, relationships and stewardship, besides extracting the maximum amount of wealth for personal gain. What is clear is that public and private law go hand in hand to develop new sustainable solutions for the future. For who read Dutch, Monika Chao-Duivis has also written a three part series on circular building in the Dutch Tijdschrift voor Bouwrecht that is worth a read. This literature is a great starting point for anyone interested in this new area.

Jill Robbie of the University of Glasgow, who is a specialist in water rights, and I are starting a new initiative. We will be working closely together in the future to showcase what private law, most notably property law, can do to contribute to the attaining of the SDGs.

To start we will be compiling a public reading list of materials for everyone to consult and – most importantly – to contribute to. We will collect literature from environmental law, private law, legal theory and every other area that can be of help to us.

Following on from this, we will develop initiativesand projects, in the most innovative and interdiscplinary  manner we can conceive, which attempt to assist with the transformation of our laws which needs to take place if we are to look after our world for future generations. We welcome anyone who is willing to work with us on these matters from all over the world.

For now, you can contribute to the compiling of our reading list at https://goo.gl/forms/ZVvihJ58P47UJXBq1

Many thanks in advance for those who do!