2. What is Law and Why Should We Obey It?

A widespread and ‘common sense’ understanding of law is that it consists of rules to guide behaviour that have been laid down by parliament and courts. Law is created, enforced and revised by these legal institutions and supporting state-based mechanisms. Change to the law occurs in accordance with well-established institutional procedures. But the common sense understanding of law leaves many unresolved questions:

• By what authority is this ‘law’?
• Is it moral, just and/or legitimate?
• Does it reflect social values?
• Is law neutral in its operation?
• Do we have an obligation to obey the law?
• Why does the common sense idea about law exclude the First Laws of Australia’s Indigenous peoples?
• Is it possible to reimagine law in a way that is more attentive to Earth — that places humans within, rather than against, nature?

We consider some of these questions briefly below, but much more could be said about each of them.

2.1 What is Law?

The question of ‘what is law’ can be understood as a question of representation and authority — that is, an enquiry into how law is understood and what its source is. We will step through each of these.

Legal positivism has been the dominant approach to legal theory over the past 200 years: it is the basis for the common sense view mentioned above. In simple terms, legal positivism is the view that law is laid down (posited) by a political superior (such as a sovereign or parliament), that it is therefore objectively identifiable and limited in the sense that it is different from more vague and contestable social norms, and that it does not necessarily reflect any morality or justice (though it can).^[1] The advantage of legal positivism is said to be its clarity about what law is (and what it is not) and therefore about what laws need to change. Its downside is that it limits the understanding of law to an image that has emanated from a very particular place and history: Britain and Europe of the past few centuries. A theory of law that is often contrasted with positivism is ‘natural law theory’.

Natural law theory has an older and more complex heritage, but it is essentially the view that law either must or ideally ought to reflect an objective morality or set of universally held values.^[2] One rather obvious difficulty with this is that there is little if any agreement beyond some basics about the ‘objective’ values upon which law is or ought to be based. The description of so-called objective and universal standards also obscures some European and Anglo biases.

Throughout the 20th century these theoretical approaches to law were challenged by many intersecting social and critical approaches to law. Broadly speaking, social and critical approaches challenged the ideas of neutrality, objectivity and universality that the mainstream approaches tended to assume. They pointed out that law in its dominant form is based on social mythologies (individualism, human exceptionalism, centralised power, eurocentrism, anthropocentrism) that are not universally shared. For instance, ideas about the legal person have been based on a specific concept of what a legal subject or person is — usually associated with characteristics that are socially masculine, white, able-bodied and heterosexual. Feminist and critical race theorists have argued that law is based on and reproduces systemic forms of social power, for instance patriarchal and racial power. Indigenous legal philosophers have pointed out that the dominant state-based model of law remains an artefact of a colonial system that continues to destroy the land and separate people from Earth.

2.2 What is Law For?^[3]

Until recently, western legal theory was characterised as anthropocentric (human centred): it focused on human nature, institutions and relationships. Despite its name, the natural law tradition has not been about or for nature at large but about an imagined universal and unchanging human nature. However, in an unexpected way the very idea of a ‘natural law’ might be helpful for climate-conscious legal theory: is it possible to reimagine natural law in a much more expansive ecological way? A nature-oriented theory of law would (in keeping with many Indigenous understandings of law) identify law as being of Earth and emerging from the natural world in all of its incredible diversity, dynamism, fragility and locational specificity.^[4] Such a law would include humans and our laws but not be limited to it.

The anthropocentrism of western law has been challenged by the idea that we are living in the ‘Anthropocene’. This idea began as a scientific thesis, proposing the naming of a new geological epoch prompted by human activity and excess.^[5] It has now been taken up more broadly, in the social sciences (including law) and the humanities. While contested, the Anthropocene arguably prompts an important perspectival shift. Given humans are now understood to have geomorphic (earth changing) force, the conventional separation between ‘human’ and ‘nature’ is no longer stable and distinct. This has prompted a greater engagement with ecocentrism (ecologically centred), which values nature for its own sake and places humans on the same level as other dimensions of the environment, stressing the interdependence of all living and non-living things.

This ecocentric turn has also galvanised different legal approaches to the protection and governance of the environment. This includes the emergence of earth and ecological jurisprudence, which is focused on the extension of rights to nature, such as rivers, forests and mountains. This approach is deeply informed by ecocentrism. Some scholars have drawn attention to the limits of rights and the presumptions of legal personhood (white, male, able-bodied, propertied), advocating a turn toward obligations, which arguably ground rights while also extending our understanding of the legal relationships between humans and nature.^[6] Nonetheless, various forms of legal recognition, including rights, have now been granted to non-human entities throughout the world as rights for nature, and advocates of this approach often act in partnership and solidarity with First Nations custodians.

Indigenous peoples offer extensive and much more ancient philosophical (and practical) guidance about the ways in which an Earth-centred law is possible and necessary for our survival. This has extended to a critique of western ethics and a scholarly engagement with obligations in accordance with an Aboriginal ethics.^[7] The challenge for theoretical approaches grounded in the western (European philosophical) tradition is to centre First Nations knowledge and jurisprudence, and not to appropriate but instead to engage with these traditions on their own terms. This engagement has prompted a reimagining of theories about law, attending more closely to nature in and around human life and across Earth.

2.3 Where Does Law’s Authority Come From?

One of the central questions of legal theory concerns authority: what precisely is the source of law’s authority? Is law justified in some way that can be generally agreed upon or does law have authority only because it is backed up by force in different forms? This question has been extensively studied within political theory, but it is equally important for legal theory. Law’s authority is often said to be based in sovereign power (originally in the form of a monarch), a social contract in which the people consent to being governed for the security of living in a state, or in deference to religious, social and moral values, or some combination of these factors.

For influential legal positivist, HLA Hart, who built on the work of others in this tradition, the law (of the state) is grounded in social rules (norms), which turn on the idea of obligation. According to this theory, legal authority does not emerge (solely) from the threat and exercise of force but rather from an understanding of its validity. That is, legal authority arises when social rules are obeyed in the fulfilment of a perceived obligation, rather than in the avoidance of punishment. Adherence to rules requires the application of ‘social pressure’, which signals a standard of behaviour that is accepted as a guide for the conduct of social life.^[8]

Those who approach legal theory from a critical perspective are more focused on the practices and consequences of authority than its sources — that is, how legal authority is carried out and whether it achieves its desired outcomes. This approach includes a questioning of the imaginaries and knowledges that are reflected in practices of legal authority, such as the attribution of rights to legal persons, which we mentioned earlier. Accordingly, the exercise of legal authority is not neutral but instead reflects particular social imaginaries and power structures, which are entrenched and institutionalised in their articulation and repetition — in their telling. We will return to this in section 3.

Ultimately ideas about the authority of state law are convenient fictions (or myth, as we discuss below), since the reality of law’s existence and authority is much more complex than any one abstraction: the state law that governs our lives is an artefact produced by centuries of social and political conflict and change. Critical theories of law add more sociopolitical and cultural dimensions into the mix of factors upon which law is said to be based: law is ultimately grounded in multiple forms and practices of power, and law’s authority is therefore inseparable from patriarchal power, European supremacy (colonial power), economic power (in particular capitalism) and so forth. The ‘social’ contract has been renamed a ‘sexual contract’ and a ‘racial contract’^[9] because modern nation states in colonised parts of the world were imagined and constituted exclusively by men of British and European origin.

In Australia, the ‘authority’ of law can be regarded as tenuous, given the obvious falsity of the narrative of the terra nullius justification of ‘settlement’ and the lack of any cession of authority by First Nations. This is made clear by Tanganekald and Meintangk legal philosopher Irene Watson, speaking of various ‘development’ proposals on her ancestral lands (fracking, golf courses, drainage construction): ‘The state has power derived from its original violent colonial foundation to go ahead but it does not have the law-full authority. The state does not have the consent of First Nations and even if consent was given by individuals, it is important to note that there are situations where consent would be against law.’^[10] First Nations knowledges challenge the abstract and centralised sovereign authority of European-style legal systems with understandings of law based in reciprocal relations with country that cannot be erased. As Kombumerri / Wakka Wakka scholar Mary Graham explains, ‘Aboriginal Law / Aboriginal civilisation could be said to be both an action guide to living and a guide to understanding reality itself, especially in relation to Land as the basis for all meaning.’^[11]

Centring First Nations knowledge in legal thinking means, in the first instance, putting the authority of Indigenous peoples at the heart of law and challenging colonial assumptions about human supremacy over the land and nature. There are complementary ways to think of the authority of law, even within the limited options offered by our present positivist framework. For instance, it is possible to expand the beings imagined by any ‘social contract’ to global communities and future generations. Looking further, to the relationships that make human life possible in the first place, we could expand the contract that frames an imaginary of law to a ‘natural contract’^[12] inclusive of all living and non-living beings. We will return in section 3 to how law might be reimagined so that it is responsive to nature, which includes both human and non-human beings.

2.4 Must We Obey the Law?

Contesting the authority that law is said to be based on raises significant questions for legal theory:

• What is the nature of our obligation to obey the law?
• Is obligation merely a practical matter of avoiding penalties?
• If aspects of law are extremely unfair, discriminatory or otherwise unjustified in some way, do we nonetheless have a social or moral duty to obey it?
• Do we have a social duty to disobey in pursuit of a higher purpose?
• Is it necessary to disobey law in order to prevent the extreme dangers of climate change, thus potentially justifying a defence of necessity under criminal law?

There are many variations to such questions and even more possible answers.

‘Civil disobedience’ (or ‘civil resistance’) encapsulates different forms of refusal to obey law, undertaken in order to resist law or at least draw attention to wider political issues, often connected in some way to the protest itself (eg protesting fossil fuel by drawing attention to sponsorship used to greenwash a brand — see Figure 2). In relation to environmental damage, activists sometimes claim that state law has lost its authority, insofar as it actively promotes environmental destruction, and that traditional methods of change do not work because law reform processes are captured by those who profit from damage (‘we tried polite’, as the sign succinctly puts it).

The concept of civil disobedience is often understood as broadly occurring within the framework of a liberal democracy where the parameters of the state and punishments given are public and accepted by protesters.^[13] But the line between civil disobedience (in progressive circles often now practiced as non-violent direct action) and forms of activism that are more extreme or aimed at radical change to state-law systems is not always easy to draw. A protest against fossil fuel and extractivism at some point might contest an entire matrix of social-legal-political forms, including colonialism, individualism, corporatism, private property and attempted control of nature. Such a protest generates difficult questions. For instance, is it morally worse to destroy ecosystems and country by clearing land (for human housing or mining or cattle raising) or to blow up a pipeline because conventional methods of protest do not work?^[14] Both ‘civil’ disobedience and more extreme forms of political violence have preceded a number of high-profile legal changes, such as the extension of voting rights to women in the UK.^[15] Who is on the right side of history — those who always obey the law and maybe even use it for their financial gain, or those who break it to promote a longer term goal? Legal theory does not provide definite answers to such questions, but it can provide strategies and tools that may help protesters (and their lawyers) to think broadly about them.

Disobedience, civil or otherwise, therefore goes to the heart of what law is, what it should be and the politics of changing the law. In its more moderate forms, it challenges mainstream law while also prompting reform using methods that consciously and publicly break the law.