Is Degrowth Even Legal?

Current law is not degrowth-friendly.

Photo by Tingey Injury Law Firm on Unsplash

We can talk about the benefits of degrowth all we want, but if the laws where we live don't accommodate degrowth we have a problem. Most people reading this live somewhere where the rule of law is paramount. We have spent the last few thousand years implementing and hopefully improving the laws that govern our societies so that we can have orderly societies. Laws set out incentives and penalties that for the most part keep society polite and moving forward toward a better world.

That's the idea anyway.

But all those laws, especially in the Western world are attached to economic systems and cultures that see economic growth as a country's reason for being. That's quite a challenge for those wishing to take the degrowth path.

Too little information.

I’ve been thinking about this issue of degrowth in the law for quite a while. So, I knew I was going to write this essay. I thought I would do a bit of research on degrowth and the law to see what was out there. I found that there's not much out there.

I’m sure this isn't the best place to do this, but if you are reading this and in a position to write on degrowth and the law, please do so. There's a lot of scholarship that's needed in this area to move the idea of degrowth forward.

I found a great article from 2021 titled; Degrowth and Law – how to combine these concepts? In the essay, Geoffrey Garver notes the challenges that I spoke of above. The law we know is tied to hierarchical structures, that serve the state and owners of property first and foremost. The author proposes more emphasis on ecological law to help us transition to a degrowth society.

In his earlier 2013 paper, The Rule of Ecological Law: The Legal Complement to Degrowth Economics, Garver sets out Ten Core Features of the Rule of Ecological Law. I suggest you read his work, as it goes into more detail than I will here. I list his ten rules for your edification:

1.      Humans are part of Earth's life systems not separate from it.

2.      Legal regimes must be constrained by ecological considerations necessary to avoid catastrophic outcomes.

3.      The role of ecological law must permeate legal regimes and other disciplines like economics and a systematic integrated way.

4.      The legal regime should support a radical refocusing of the economy on the reduction of its throughput of material and energy.

5.      the rule of ecological law must be global but distributed fairly using principles of proportionality and subsidiarity with the protection of the global Commons and public goods.

6.      The rule of ecological law must ensure fair sharing of resources among present and future generations of humans and other life forms.

7.      The rule of ecological law must be binding and supernational with supremacy over sub-regional legal regimes as necessary.

8.      A program of research and monitoring for improved understanding and continual adjustment of ecological boundaries and means for respecting them is needed.

9.      The rule of ecological law requires precaution about crossing planetary boundaries, with margins of safety to ensure that the boundaries are respected from global and local levels.

10.   Ecological law must be adaptive.

So, all we need is a binding global law that fundamentally changes the way we see ourselves in relation to nature, puts strict limits on our use of resources, requires us to share resources more equitably, and can quickly adapt to a world where environmental challenges will come more frequently and become more destructive with each passing year. Sure, should be no problem.

Govern locally but in a global way.

One of the challenges of integrating degrowth and law is that degrowth looks to decentralize much of the system we have today. This is intended to slow down the throughput of our societies, to produce more locally and cooperatively. Our centralized system of governance today has spent decades and centuries consolidating power to run an economy at the national level. Of course, there are states and local governments that handle more local planning and decision-making, but the national system has primacy in most cases. A degrowth model looking to change this is a big cultural change and will take time to catch on.

You might want to check out the paper, Degrowth: An Idea For Our Time by Gareth T. Davies :: SSRN

The paper focuses on more than just the law but does devote quite a bit of time to the question of how the law could function in a degrowth world.

The authors agree with Garver, noting that a law regime focusing on degrowth would put environmental goals first, and likely include strict regulation. They believe that this economic and legal system would grant more rights to employees and citizens, with more family and individual leave, and universal public services. Such a law regime would encourage more to be done and handled at the local level. Limits on resource use would replace market structures in many cases. For example, a society with degrowth infused in law is more likely to have GHG emissions limits, instead of the more market-based emissions trading schemes.

Laws don’t change until cultures do.

The examples I gave above are a bit academic. That’s fine, that’s where these ideas often start. We need more of that. But we aren’t going to have a global legal system anytime soon that puts the primacy of nature above property rights. But we can start to talk about it more, to get more happening at the local level, which can then filter up to more national and global practices.

This takes a change in the way we think about the purpose of law. At its core, law exists to keep order in a society, through a system of incentives and punishments. We can make laws about anything we want. I live in the United States and decided to look up some ridiculous laws here to make this point.

·        California: If a frog dies in a frog jumping contest. It is illegal to eat it.

·        Idaho: Cannibalism is punishable by up to 14 years in prison.

·        Kentucky: Every public official must take an oath that they have not fought a duel with deadly weapons.

·        Michigan: Adultery is a felony

·        New Hampshire: It is illegal to collect seaweed at night.

·        South Carolina: No man over the age of 16 is permitted to seduce a woman by falsely promising to marry her. Women are apparently allowed to do so, however.

These silly laws drive home the point that law is tied to culture. At the time when many of these laws were put on the books, they reflected the culture of their time.

Interracial marriage was only legalized in the United States in 1967 (Loving vs. Virginia). Same-sex marriage only became legal in the United States in 2015 (Obergefell v. Hodges). That there were marriage restrictions in these ways seems odd now. But they were products of their time.

Law favoring a degrowth world will only happen once a culture embraces degrowth, and then likely with a lag. Those big marriage cases in the US were a long time in the making. If you want the law to change, change the culture. If you want the culture to change, get out there and change it.