Advancing Rights of Nature through Restorative Justice

TJ is a lens that can be applied to any area of the law, this week Guest Blogger Femke Wijdekop continues our exploration of environmental law…

The Scottish law firm Living Law recently published a report, Giving Nature a Voice – Granting Nature Legal Rights, analyzing legal developments to recognize rights of nature in the jurisdictions of New Zealand, Colombia, Ecuador, Bolivia and India.  The report speaks of a growing momentum for rights of nature, but also signals recurring challenges in their enforcement, especially when they have to be upheld against well-entrenched property rights.

In my paper Advancing Rights of Nature through Restorative Justice, I look at how restorative justice to play an additional role in advancing the rights of nature.

What is restorative justice?

Restorative justice is a social movement and set of practices that aim to redirect society’s retributive response to crime. It views crime not as a depersonalized breaking of the law but as a wrong against other members of the community. It involves community-based processes, which offer an inclusive way of dealing with offenders and victims of crime through facilitated meetings.

With its focus on healing the harm caused by crime for all parties involved, restorative justice can be seen as a therapeutic tool to improve the wellbeing of those who are affected by the law. As such it is related to Therapeutic Jurisprudence (TJ), which studies how systems of justice influence behavioural outcomes and emotional wellbeing.

In New Zealand and Australia restorative justice is applied to environmental crimes and in New Zealand nature is sometimes recognized as a victim of environmental crime in its own right, and represented in the restorative process.

My paper gives a short overview of these cases, which shows the potential of restorative justice to advance the recognition of nature as a victim and to vindicate nature’s rights. It shows that when the environment is recognized as being a victim of environmental crime and is represented in the restorative justice process, it can become empowered because it is given a voice, validity and respect.

This is a transformative act as it recognizes the intrinsic value of the environment. Giving the environment a voice and recognizing and healing it as a victim contributes to transforming humanity’s relationship with the environment from one of exploitative ownership towards respect and a duty of care.

Restorative justice processes allow a wide range of values, including spiritual and emotional values, to be expressed and acknowledged. Thanks to this ‘open’ character, restorative justice could be well suited to give space for rights of nature-approaches to what constitutes an environmental violation, who can be a victim of such a violation, and what ‘restoration’ could look like from an ecocentric perspective. As such, restorative justice seems to hold great potential as an avenue to advance the rights of nature.

You may read my full paper here.

I welcome your feedback on this blog and my paper. You can contact me at fwijdekop@gmail.com.

Interested in TJ and environmental law? read last week’s blog by Nabeela Siddiqui

 

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Environmental Psychology & Therapeutic Jurisprudence: Rethinking Environmental Courts and Tribunals

The legal philosophy of therapeutic jurisprudence – how the law and legal processes can innovate to improve the wellbeing of people and communities – is a interdisciplinary approach that can be applied in all areas of the law.    Over the coming two weeks,  we will explore how TJ thinking can be used to improve environmental law…

Guest blogger Nabeela Siddiqui focuses her TJ lens on Environmental Courts and Tribunals drawing on the social science of Environmental Psychology…

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A therapeutic Jurisprudence response to viral online games such as #Bluewhale and #KIKI challenge

In recent years social media has led to the viral spread of various games or challenges. Some such as the ALS Ice Bucket Challenge – where participants dumped a bucket of ice cold water over their heads – have been positive awareness raising activities for charity. Others such as #BlueWhale – where participants engaged in self harm and even suicide – have been dangerous.

The most recent craze,the #kikichallenge – where participants jump out of a moving car and dance to the Drake song “In My Feeling” – has led to deaths.

Guest blogger Dr.Debarati Halder explores the Indian legal response to these social media phenomena and the potential role of therapeutic jurisprudence…

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Restorative practices to further therapeutic jurisprudence in Family Courts (An Amicus Justitia Brief)

Magistrate Gabriela McKellar writes…

I am a magistrate in a Family Court in Cape Town South Africa, and I am interested in how to ensure a more consistent practice of Therapeutic Jurisprudence in Family Courts.

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Steps towards change – a tool for judges working with persons with substance abuse disorders (TJ Court Craft Series #12)

Guest blogger Magistrate Pauline Spencer writes….

Judicial officers seeing people with substance abuse disorder will often see people who are feeling overwhelmed.

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The Therapeutic Application of the Law & the need for ‘Amicus Justitia’ Briefs

Therapeutic Jurisprudence founder David B. Wexler writes… 

Since I wrote my essay New Wine in New Bottles  where the legal landscape or code provisions were thought of as “bottles” and the developing TJ practices and techniques were thought of as the new “wine” or “liquid”, I have been thinking about how some new types of legal writing are in order.

The New Wine article spoke fancifully about the need to sketch a TJ “code” (scare quotes intentional) of proposed criminal processes and practices, where the hypothetically blackletter TJ-friendly provisions could be accompanied by a “commentary” section detailing how TJ practices could be poured into the code provisions.  A TJ-friendly provision, therefore, speaks only of the law’s potential to be applied therapeutically: to live up to its therapeutic potential, legal actors (judges, lawyers, others) need to use the types of TJ practices that the so-called friendly law would allow.

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Therapeutic Jurisprudence and Environmental Law – One Missing Link

perlin photo

Guest blogger Professor Emeritus of Law, Michael Perlin, writes:

One of my puzzlements is why we in the therapeutic jurisprudence (TJ) community have made so few inroads in the areas of environmental law and protection.

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