Book review
15/1 2024
Marie Widengård
Marie
Widengård reads Jana Norman’s ‘Posthuman legal
subjectivity: reimagining the human in the Anthropocene’, (2022) and
reflects on the relations between Hawaiian rivers and wildfires
Through ‘posthuman legal subjectivity’, Jana
Norman wishes to provide a complement to the nonhuman legal personhood often
associated with rights of nature. In this book, we are asked to shift focus
from the ‘other’ and the ecocentric expansion of non-human legal subjects – towards
the ‘self’ and the ecological expansion of the human legal subject. A reason
for placing the human in the middle (but not in the centre) is that nonhuman
representation is mostly about humans anyways. What then does this ‘posthuman
legal subjectivity’ entail?The book is divided into six chapters. In the introduction, we meet two of the legal theorists who have been decisive for Norman’s approach: Margaret Davies who took the idea of law beyond its conventional boundaries towards a law unlimited where the material and plural domains of an interconnected human and nonhuman world are recognised; and Thomas Berry, one of the founding thinkers of earth jurisprudence and advocates for rights of nature and who wanted to expand the community of legal subjects to include every human and nonhuman member of the Earth community. Building on these ideas (and numerous other theories), Norman reconceptualises the human legal subject to take earthliness into account and introduces the ‘super-thick’ legal subject ‘Cosmic Person’.
Who is this Cosmic Person? The posthuman by Rosi Braidotti’s is given as a reference to what Norman has in mind. In particular, the cosmic person ’acts with interest in the project of life itself rather than the individual life project’. Norman wants the name to evoke the notion that ‘as material human beings, we belong to the universe – we are made of stardust – and we belong to the earth because we are part of, rather than superior to or apart from, the whole community of life on this planet’ (Chapter 1). For Norman, it is important to consider ‘the relational, affective and embodied complexity of human existence’ and to create ‘awareness of human interconnection with other life forms and systems of the earth and even the universe as a whole’. This means, for example, that we all belong to our communities, ‘whether in correspondent conformity or defiant opposition or a complex mixture thereof’.
But how can this cosmic complex be applied in law and legal practice? At this point in my reading, I decided to jump to the pragmatic chapter five of the book where Norman promises to show how the posthuman, cosmic legal subjectivity can be understood and practiced. In chapter 5, we are introduced to the Waimea River case. Waimea is one of the largest rivers in Hawaii located in West Kauaʻi. However, the river is a matter of concern, specifically because it had run dry because of massive irrigation. The diverted amount of water had remained the same as during the sugar plantation days, even though all that water is no longer needed for agriculture. Large scale sugar cultivation ended in 2001 and yet large amounts of water were still being channelled out from the watershed onto the plains, ‘just taking out the river and on the road to nowhere’. Beginning in 2013, an Alliance of watershed residents, farmers and Native Hawaiian cultural practitioners petitioned the State of Hawaii to increase the instream flow standards for the river system and stop the wasteful diversion of water.
Four years later, a historical mediation agreement shifted the water governance away from merely industrial needs towards the interest of the river ecology, its species, recreation and traditional and customary practices. A central objective had been to create connectivityso that all streams would run from the mountain to the sea as per the principle of One Water, that is, ‘being one with each other’. Norman explains:
the Waimea River Watershed Mediation Agreement is an example of law that has moved into posthuman territory. The agreement is more of a guideline for a mutually constitutive relationship than a water management plan. That is, water is to be managed, but such management for human use is to be carried out within the context of the river system. The limits of the river, rather than human interests and uses, set the terms of management. This suggests a deeply ecological framework, and it sets a trace of posthuman normativity into the agreement: the source of the law (or, in this case, the pre-juridical agreement that binds parties to particular behaviours and standards) is the river. … The people have agreed to serve the river in an ongoing relationship of co-becoming (chapter 5).
To those of us familiar with the Whanganui case in Aotearoa New Zealand, this sounds like a familiar shift towards more river-centred and indigenous water governance. But how are we to understand the Cosmic Person and the posthuman legal subjectivity in Waimea? Norman suggests that the enlarged sensibility is visible at several points: by choosing mediation as a method of resolution; by telling the story of the Waimea watershed as a human–non-human ecosystem; by locating the human in the middle but not at the centre; and by recognising the complex, interacting pattern of continued and new practices.
Everyone won and everyone lost, says a person from the Hawaii Commission on Water Resource Management: Earthjustice got restoration of stream flows, while agricultural companies and renewable energy projects secured their water demands (see video published on Apr. 18, 2017). Indeed, a central driver of the agreement was to provide adequate water supply for the river and have water restored back into the river, but another driver was an energy company that wanted to quickly settle the water disputes to speed up new hydropower developments. A farmer says that the settlement is not enough, but it is a good step in the right direction towards getting the water restored into the river. The lawyer from Earthjustice says it’s going to require continued efforts to make sure ‘that the wins on the paper translate into wins on the ground and in the river’ (see video).
Despite of the rich material posted on the case, it is not clear what concessions big industry made. I would like to know more about what it was that ‘everyone won and everyone lost’. However, perhaps this is what Norman means by the notion that the entangled posthuman legal subject ‘evokes one scale of accountability beyond the self’ (chapter 1). The collective perspective should bring something new to the table. To fully understand how water governance shifts with these legal innovations, it probably requires that we follow cases over a longer time and learn how rivers and relationships develop together. The Waimea agreement has certainly not resolved all water issues. There are community concerns that the river is still running low.
The Waimea case was certainly a high point of the book and I diverged into learning more about the river and the Hawaiian water approach. For me, then, the book was foremost an inspiration on how to think of the posthuman legal subject as collective of humans and nonhumans. ‘The cosmic person’ was an interesting take, but I wonder if is necessary to reach for the stars to argue for the re-centring of the river and its caretakers in law and watershed management.
We only need to turn to another island in Hawaii to realise the importance of indigenous water care. On August 8, 2023, one of the deadliest wildfires in the US history ravaged the Hawaii Islands, and particularly devastated Maui and the town of Lahaina. Over hundred people died and thousands of homes were destroyed. People now raise questions about how the fires began and whether anything could have been done to prevent the disaster.
What caused the Maui fire? A cause has still not been officially established, but natural and human-centred explanations feature in the news. ‘A perfect storm of conditions led to the deadly blazes’ writes CNN. The fires were fuelled by a mix of land and atmospheric conditions that created "fire weather" according to CBS News. This involved a combination of factors: gusting winds, low humidity, lack of rainfall and dry vegetation, states USA Today. Much of Hawaii was under a red flag warning for fire risk when the fires broke out. Among the factors were the dangerous high wind conditions caused by Hurricane Dora, which moved across the Pacific Ocean. Fingers were also pointed at power and water companies. CNN and Washington Post reports that the state’s electricity company was blamed for failing to implement safety measures. Residents testified that the fires were ignited by the flames after trees fell on power lines during the strong winds. The county and residents have now sued the company for not powering down as the storm approached. The company in turn says they had put out the fire caused by the downed electrical line. Turning off the power completely would have prevented the water pumps from working. Still, the availability of water still became an issue as heat and poor plumbing combined to depressurise the water system. New York Times highlights that water ran out, which hindered the fire fighters and residents to slow the fires.
Water has become part of a larger discussion as people seek to draw lessons from the fires. Traditional media, such as New York Times, reports that the water system in Lahaina relies on both surface water from a creek and groundwater pumped from wells. The persistent drought conditions combined with population growth has merely led to an intensified search for more water supplies and new wells.
What isn't told and what isn't covered in the official channels? This question was raised by Hawaiian scholars at the 4S conference in Honolulu 2023. They emphasised that people rely on the water streams to fight fires and pointed at the importance of taking care of streams and restoring the natural flow of water to avoid future disasters. Via a videoclip, we listened to one of the many testimonies challenging the official narrative of what caused the fires. According to a testifier, this disaster has been waiting to happen for generations because the pleas of the community to restore the streams and restore the water has continued to fall on deaf ears. Instead of channelling water for sustainable farming, water has been diverted to industrial irrigation, tourism and infinity pools. Hence, the causes of the fires are also found in the infrastructural and land tenure landscape that allows water to be taking from one place to profit another. Many Hawaiians therefore plea for the return of the waters. Perhaps new posthuman legal subjectivities will emerge as the search for causes and solutions continues.