To be present in the world implies strictly that there exists a body which is at once a material thing in the world and a point of view towards this world; but nothing requires that this body have this or that particular structure (de Beauvoir 1972; p. 39).

Introduction

It is widely accepted that state law in its common positive form has social sources. Because of its focus on state law, jurisprudence often stops at this point – accepting social facts and norms as the basis for state law.Footnote 1 It is nonetheless interesting to pay attention to those facts, and the diverse histories, relationships, institutions, and social identities from which they emerge. Removing the limits of state law – even as a thought experiment – can reveal the multiple material vectors out of which it continues to emerge. These factors are the foundations and infrastructure of state law, even though they may be excluded from ‘legal’ analysis of its limited form.Footnote 2 The existence of human law presumes not only multiple prior layers of human (social, cultural) normativity, but also of nonhuman norms. Neither state law nor social norms can be dissociated from life or from the processes of living. What western thought understands as ‘human’ law is of human life, that is, it is a product of an emergent and diverse human life.Footnote 3 But it is also apparent that law/normativity exists beyond living and beyond any knowing human subjectivity, embedded in the naturally purposive value-creative movement of matter (Prigogine 1997; Barad 2007, 2012; see also Grosz 2004; pp. 130–131, discussing Nietzsche 1972; aphorism 36Footnote 4). Since normativity is not confined to human life, all forms of law ultimately emerge from the natural physical world; what is understood as human law is grounded in human-nonhuman entanglements, and this is a subset of a multi-dimensional natural nomos, coexisting in the overlapping and intricately nested normative worlds of animals, plants, earth, and cosmos.

Human law clearly and obviously owes its existence to the natural physical world with its diverse co-becomings and its self-created value systems. The problem for legal theorists embedded in the western tradition is that we might find it difficult to see that law is a product of a generative nature when we regard state law as the centre of the legal universe; we need at some point to recognise that we are not bound by parochial or political definitions of law and can invert our methods so that we start with the Earth rather than regard it as an excluded outside or a marginal afterthought. In pursuing this line, I am not proposing anything new. Many First Nations peoples have for millennia understood law as part of the land and as immanent across a living-nonliving continuum (Kwaymullina and Kwaymullina 2010; Bawaka Country et al. 2016; Watson 2015; Deloria 1999; Cf. Anker 2017). These worlds differ by nation because they are grounded in a literal sense. Because they attribute primacy to the land they have a clarity that Euro-derived renditions of law lack. As Kombumerri and Waka Waka philosopher Mary Graham puts it:

The two most important kinds of relationship in life are, firstly, those between land and people and, secondly, those amongst people themselves, the second always being contingent upon the first. The land, and how we treat it, is what determines our human-ness. (2008, p. 181; see also Watson 2017; p. 212)

In the face of the many complicated efforts of western people and western ideologies to isolate ourselves from a nonhuman world and to find transcendent foundations for law and knowledge, Graham points out that Aboriginal people know that ‘the only constant in the lives of human beings …[is] land/nature’ (2008, p. 189; see also Watson 2015; Black 2011). This basic truth has been repressed and sometimes entirely forgotten by western culture; even critical socio-legal accounts of law still tend to put the relationship between people before the necessarily prior condition of ‘land and how we treat it’.

The essay is divided into four sections. In the first section, I lay out the background to the present essay, which is an amplification of certain matters that have arisen in response to my book EcoLaw (2022) – in particular the point that we are necessarily bound to a human perspective even while endeavouring to move beyond it. In the second section, I sketch aspects of the conventional exclusion of life from the definitions of law (and knowledge) and describe its partial return in socio-legal thinking. Sections three and four endeavour to re-connect biological life and law using, respectively, the two starting points of the human and the more-than-human. The sequence of human and more-than-human are not the ends of a spectrum or separate (except insofar as they are conventionally separated). Rather, they are each launchpads for developing an image of interconnected plural normative fields, that are also cognitive and ontological fields. The conclusion offers some brief thoughts on how I think the approach fits (or doesn’t) with legal theory in its western manifestation.

Some Background: Human Lifeworlds

Thinking beyond state law to a wider nomos raises some preliminary questions which I will explore briefly before explaining the more specific background to this article:Footnote 5 first, what is the difference between ‘law’ and ‘normativity’? And second, how can theory differentiate between different types or kinds of norms – for instance, those intentionally imposed by an authoritative body and those unknowingly followed in the process of living? These questions are also considered in my book EcoLaw: Legality, Life, and the Normativity of Nature. In that work I explore the continuity between, and comparability of, the plural forms of human and nonhuman normativity. Specifically, I define normativity as emerging from material patterns and pathways that are formed by purposive iterations and bonds. Norms are produced by repetition (including habits) and convergence, processes that are not mechanical but always encompass the possibility of divergence from established patterns. Norm-producing processes are also purpose-driven or at least directional; the direction might be the flow of energy, the preservation of life, a drive to be ‘normal’, or maximising social coherence. This definition enables a comparison to be drawn between the norm producing processes of human and nonhuman nature. It also helps generate an image of normative plurality as a field of complex (plural, intersecting, and conflicting) ordering that crosses the division of nature and culture.

Complex and intersecting plural normative fields include those associated with the nonliving world, the multiple ontological worlds produced by life forms, and the many strata of human becoming – cultural, cognitive, social, and representational. Describing the nomos as plural indicates that its many dimensions are irreducible to each other. Normative fields intersect, hybridise, and clash; they can mutually strengthen and also negate other normativities. They are not an orderly totality. As I will explore further in this article, entities arise as part of these meaning-making normative relationships and do not precede them. Understood as an artefact, human law in its western form sits within the social and representational dimension of normative plurality – such law is produced by human social norms and human representations of the world, which include the narratives of European cultural and racial superiority and dominance that have been so damaging to First Nations and to the planet as a whole. Yet all of these norms have the moving physical and living worlds of nature embedded within them. None of this normative complexity is static, indeed by definition it cannot be, and more importantly it is the product of inherited norms layered over eons and inscribed in embodied life as the knowledge products of geohistory and evolution – how to grow, how to feed, to reproduce, to survive. In other words, there is a conventional, political difference between state ‘law’ and normativity at large, but as I will explain further, state law is nonetheless always emergent from and ultimately inseparable from these wider normative forces. State law is often understood as deliberately chosen, but it is nonetheless always constrained by many prior conditions.

Within the plural nomos there are clearly many ways of differentiating norms – who made them? How were they made? Was intention involved? are they given by a political superior? Are they emergent? Abstract? Entirely physical? A combination of both? How do we know them and live them? Are they of a type that can be accepted or resisted? Do they direct matter (including human beings) even without any conscious choice being possible? All these questions and more can be of interest to legal theorists; however the project of differentiating normativity into types or kinds is not my primary concern at this point. Rather, my concern has been to expand the framing of law and legal theory beyond the abstract euro-colonial state to matter itself so that the law-state entity can be reframed as ecologically emergent, rather than severed from matter and life. This does not mean that it is not possible intellectually or politically to bracket all of life and all of materiality from the understanding of law; this has been the dominant mode of understanding law in the west and it has proved highly destructive to more grounded (emplaced) experiences of law and to the Earth at large.

One further point has frequently been raised in discussions about this perspective and forms the specific motivation for this article. It is this: we are always bound to a human perspective, even though we might endeavour to shift the orientation of legal theory from an exclusively human centre to a more than human field. We can only see the more-than-human through our own human filters, which include our biological limits of perception and intelligence as well as our specific and multiple layers of cultural, educational, linguistic, and other discursive patterning. Can the human-ness of our knowing and thinking be reconciled with the effort to engender a non-anthropocentric understanding of law in nonhuman beings? The observations behind the question are of course necessarily true: they are an extension of Kant’s argument that we cannot know the world as it is but only as it appears to us. In one sense the question (while fair) does not negate the value of attempting an imaginative and empathic shift in orientation from a human centre to a wider field of being and to locate the substrate of human law beyond the human. There is value in endeavouring to imagine life as a microbe in a complex ecosystem despite the fact that knowledge or experience of such a subjectivity is clearly impossible.

But the value of an imaginative and empathic shift in orientation perhaps does not fully address the issue. There is also value in trying to articulate the quality of our living knowledge as bio-social beings – of putting living subjectivity back into knowledge. Although it is not possible to bracket the human, it is entirely possible to regard our selves as natural beings emergent with a vast field of physical relations and necessarily subordinate to that field. By contrast to Kant, Friedrich Schelling argued that we can only truly comprehend life outside our selves by first appreciating our own identity with nature (1797/1989, p. 36; see n12, below). He argued that suppression of the living basis of comprehension can only result in a knowledge of dead objects.

Initially in trying to think through the living quality of law and knowledge, I was led down a spiralling enquiry of which came first – normativity, living beings, or cognition. But then the obvious dawned on me that – at least as far as life is concerned – nomos, being, and knowing are co-emergent. It is the contours of this point that I explore in this article.

A Changing Paradigm? Removal of Life from Law

The ‘human’ comprises many qualifications that are now familiar; any human life form or human nature also consists of the living and nonliving processes and forms that help us each sustain our life – microbes, plants, air, and many other parts of the functioning bio-technical ecosystems that form our habitat. The ‘human’ is necessarily more-than-human – it is ‘transcorporeal’ (Alaimo 2008), a ‘holobiont’ (Gilbert et al. 2012), and (like all animals) a ‘host-microbe ecosystem’ (McFall-Ngai et al. 2013) – any conceptual boundary around the human must be understood as provisional. In this part of the essay, I maintain such a provisional boundary as a first step in moving beyond it. Engaging with the conceptual horizon of western legal theory is necessary, and before we can extend the concept of law to the nonhuman world, it needs to be reattached to embodied human life (see e.g. Grear 2011). Not only does western thought divide the human from the nonhuman and the living from the nonliving (Povinelli 2016), but much of its legal theory has gone further in its abstractions by also excluding life and the processes of living from its account of law. I start by tracing the absence of life from law and its partial restitution in recent theory.

‘We accept far too easily’, said Georges Canguilhem, ‘that there exists a fundamental conflict between knowledge and life, such that their reciprocal aversion can lead only to the destruction of life by knowledge or to the derision of knowledge by life’ (2008, p. xvii). In the dominant Western worldview,Footnote 6 law, like knowledge, has been seen as different from life and from the physical world of cyclones, rocks, volcanoes, and rivers. Law addresses, categorises, interprets, and represents life and the earth but is not seen as emerging from physical nature. Two mutually reinforcing ontological moves that underpin our separated legal imaginary have been much reflected upon (see e.g. Graham 2008). Human exceptionalism divides the human being from the rest of nature: it imagines that the human is ‘hyper-separated’ from animals, plants, and earth (Plumwood 2002; p. 102). In addition, this differentiated human being is itself bifurcated into a body and a mind (the alleged superiority of which, in some narratives, provides the justification for human exceptionalism). Traditional positivist legal theory of the nineteenth and twentieth centuries sees law as situated firmly within the mind part of this structure, as something that is conceptual before it is practiced (see e.g. Kelsen 1967). It is certainly true that the ‘western’ worldview has through its history been complex, not singular. There are ‘dominant’ views (for instance the separation of human society from the natural physical world) that are nonetheless contested by cultural and philosophical counternarratives (see e.g. Hueglin 1999; Clark and Page 2019). To speak of a dominant view in the context of legal theory is simply to make the point that a particular kind of narrative dominates other narratives and that it tends to be definitive (of law, for instance). Bringing forward the alternative views within western thought and building upon them is one method of counteracting and complexifying assumed images.

The transcendence of law in relation to living beings within the colonial and positivist mentality is illustrated by the concept of the legal person, which, depending on theoretical orientation, can be understood as a purely fictional being entirely constituted within a self-referential, autopoietic, legal system (Fischer-Lescano 2019; Kelsen 1967; pp. 173–174) or as a more complex, variable, semi-embodied but nonetheless legalised being (Naffine 2009). The form of the person enables legal categorisation of entities who are included and excluded and variously objectified by law: legal designations address living humans, via age and gender, and as citizen, alien, permanent resident, asylum seeker etc. Newly born human beings are brought into legal existence by having their birth registered and certified. Without registration and certification, the legal identity of any human being may be difficult to establish (Gerber 2009; Castan et al. 2011). The ‘person’ emerged in order to encapsulate legally the male body, more specifically, non-outlawed, non-alien, adult, non-serf, non-slave, male bodies.Footnote 7 One of the more extreme forms of this person and the foundation of much that has followed in western thought, is the early Roman pater familias, the only human entity with complete legal status. Pater familias normally encompassed civic rights vis à vis the political community as well as extensive patria potestas or paternal power over a household that was legally without power, comprised of undifferentiated land, animals, things, and people, including male and female kin (Watson 2001). Although modelled on and historically emerging from the male body, rather than bringing living beings as such into law, in its most abstract form the ‘person’ is now regarded as a category construed as necessary to visibility or standing in relation to abstract legal processes – it is these internal statist abstractions that are normally regarded as ‘law’, not the ongoing material processes which create and sustain the abstractions (Vatter 2020). As a mobile legal fiction, the status and legal visibility of the person was eventually conferred upon women and all men but is often invested with a three-dimensional (masculine-inflected) character that exist in tension with its abstract form (Naffine 2009). Nonetheless, as an abstract legal construct, the person remains separated from natural beings collectively living and relating: hence, the corporation is a state-created entity, not a legally recognised group of people (Watson 2019).

From the perspective of the western legal mind, the ‘personality’ of a river is arrived at via a circuitous, anthropocentric, route reliant upon a fictional ‘unity of obligations and rights’ (Kelsen 1967; p. 174; see generally O’Donnell 2018; 2023): western legality after all offers no alternative form for a whole living being, human or nonhuman, to be present to the law (Stone 1972; Fischer-Lescano 2020; Cf. Macpherson 2021). However, it is possible that recent personhood innovations counteract the western detachment of legal status from materiality. One of the best-known examples of attribution of legal personality to a river is accomplished via a negotiated alliance of two forms of law. The settlement of status for the Whanganui River in Aotearoa New Zealand occurred using the colonial form of legislation and the attendant abstractions that bring legibility within state law, such as the declaration of the river as an entity with legal personality (Te Awa Tupua). At the same time, the legislation enshrines many elements of the more holistic ontology of the groups who have lived with the Whanganui, in particular the responsibilities that human beings have to care for land.Footnote 8 Carwyn Jones explains that the distinct constitutional traditions of both Maori and the state are given voice in interpretations of te Tiriti o Waitangi/ Treaty of Waitangi (Jones 2019) and that negotiations pursuant to the different meanings of the treaty in its two languages create space for these traditions to come together. As part of a treaty settlement process, the Whanganui River legislation is an example of this negotiated constitutional dualism in action (see also Sanders 2018). In this sense it offers much more than a simplistic extension of legal personality or rights to a natural entity but remains a necessary compromise, which is an imperfect rendition of Maori ontology (see e.g. Coombes 2020). The approach is place-based, not a universalizable model: other locations demand other decolonising strategies to address the disjunction between living rivers and colonial law (see e.g. O’Donnell 2018; Martuwarra RiverOfLife et al. 2020).

Generally, under a Euro-colonial conception of abstract law, life is construed as outside the law (Agamben 1998; Cf. Motha 2012). Law is strictly an intellectual representation, not a living process. The idea that Earth and everything that makes life possible are separate from or marginal to abstract law also means that the essence of law is imagined as being mobile – transportable from its European place of origin to entirely different places. It is true, of course, that this disavowal of life by law has been challenged. Once positivism took hold in the late nineteenth century, the more socially-oriented legal theorists of the twentieth century began to put aspects of human life back into the legal imaginary.Footnote 9 These thinkers included Eugen Ehrlich, the US legal realists, the legal consciousness scholars, feminist legal theorists, critical race theorists, postcolonial theorists, and the legal pluralists and anthropologists. Critical and postmodern legal theory put language and the constitution of meaning into the heart of law, albeit often in a highly abstracted rather than a material form. In many cases, the human life that we returned to the idea or the conceptual field of law remained devoid of biological life; it emphasised the social and linguistic construction of law, sidelining the part played by the living body in its human-nonhuman entanglements.Footnote 10 In other cases, human bodies and the diverse materialities of human social performances have been powerfully incorporated in an extended field of legality where formal law remains, nevertheless, a dominant, often violent, and jurispathic presence. Corporeality and Earth-entanglement remain stubbornly other to the actuality of state law, an abject outside of a duplicitous legality in which inclusion is formally promoted but structurally impossible.

Although they did not extensively theorise law as intrinsically connected to biological life or to the Earth, the many forms of Anglophone critical and social legal theory of the twentieth century paved the way for an Earth first view of law. For some decades critical/socio-legal theory extended the definition of law beyond the state to the human practices, performances, and beliefs that surround and support state law as well as to the plural forms of law that intersect with and/or entirely exceed state law (see e.g. Cover 1983; Blomley 2013; Ewick and Silbey 1998). Over the past decade nonhuman beings have been seriously regarded as part of the field of law and efforts made to theorise and practice an affirmative more-than-human legality (see especially Grear 2011; 2020; Philippopoulos-Mihalopoulos 2011; Norman 2021; Anker 2017). The ongoing project for legal theory is to build on the many openings created by the critiques of the boundaries of state law moving beyond it to a more collective and emergent sympoietic understanding of legality (Petersmann 2021).

Biosocial Legalities of Being Human

Canguilhem’s observation that life and knowledge are often presumed to be in conflict, also therefore applies equally to life and law. Life – that is, biological life, the process of living – has often been presumed to be in ‘fundamental conflict’ with law in the sense that it is excluded from the concept and definition of law. But just as knowledge is produced by life before it can represent it, so law and legal consciousness emerge from life before they can be separated from life or govern it (Ewick and Silbey 1998; Esposito 2008; pp. 187–191). In itself, law cannot act or do anything that is not done by legal actors, citizens, inter-relating subjects (see e.g. Davies 2017; pp. 29–30). The dual meaning in the preposition ‘of’ is highlighted by the title of Canguilhem’s book, Knowledge of Life/Connaissance de la vie which ‘is simultaneously and inseparably the knowledge we have of life when we take it as an object, and the knowledge that life itself produces’ (Marrati and Meyers 2008, p. ix). Kurt Goldstein, to whom Canguilhem frequently refers, made a similar point in his Preface to the 1963 edition of The Organism: ‘biological knowledge is a form of biological being’ and human knowledge ‘is an expression of human nature’ (2000, p. 22; see Esposito 2008; p. 191). Such statements repudiate the common gesture that erases the embodied living being in the service of a transcendent version of knowledge and instead place knowledge at the centre of being alive.

Despite the emergence of scientifically informed philosophy of embodied knowledge in the early-mid twentieth century (see e.g. Uexküll 1926; Merleau-Ponty 1962) many of us whose knowledge has been developed within a framework of Cartesianism find it easy to repress the fact that the knowledge we have is always of (emergent from) our biological life. This is especially so when such knowledge appears to be about something other than our immediate life, like plate tectonics or constitutional law. In turn, as I have outlined, positive law is nearly always understood to be about life – never of life. Repression of this ‘of’ – the ‘of’ that means emergent from or produced by – is, after all, fundamental to any claims of unsituated objectivity, universalism, and neutrality in knowledge and law. As soon as life becomes an object of law-knowledge that is separated from the process of being alive, it is available for appropriation, a situation understood first-hand by many women, Indigenous peoples, and racialised others to mean being conceptually, socially, and even legally turned into an object.

Human knowledge and human law find their point of departure in naturally-embedded living humans. The western hegemonic version of human living has endeavoured to overcome the humanness and the vitality of what we know and the laws we live by, by insisting that knowledge is somehow about an object detached from any subject. But these detached and abstracted forms are nonetheless reliant on living beings for their meaning. The recognition of the living and material human nature of human knowledge might be understood as a supplement, remainder, externality, excess, or aporia to transcendent knowledge. Using a different theoretical idiom, this set of relations can be understood as the complexity, emergence, or generative quality of knowledge, including the knowledge that involves the formation of concepts that structure our human environment. The difference between these two terminological strategies is subtle but important. In the first oppositional and binary case, the structure implies sameness and difference or the constitution of knowledge by the othering of life and nature generally which nonetheless intrudes as a ‘constitutive outside’. In the second nonbinary (both monistic and pluralistic) case, the implication is of process and continuity across diverse materialities – from earth to body to neural system and back again, including everything in between and across differently-constituted registers and scales.

To insist that human life produces human knowledge bypasses both the Cartesian separation of mind and body and Kant’s distinction between the sensible and the intelligible. Kant’s distinction between phenomena and noumena bifurcates the human world of knowledge, with its shared a priori universals, from an exterior that is unknown in itself. The distinction (and others like it) is formative of the framework that excludes living and the processes of living from knowledge (Merleau-Ponty 1962; p. 353; Brilman 2018).Footnote 11 The opposing idea that life is the basis for knowledge and human agency, rather than bracketed from it, was made repeatedly in the centuries since Kant,Footnote 12 perhaps most famously by Darwin, Nietzsche, and Freud (Grosz 2014; Lemm 2020; Esposito 2015; pp. 115–118). However, it was the more popular Kantian view that made its way into legal philosophy (and much philosophy). As I have mentioned, Canguilhem’s work in the mid-20th century is particularly interesting for legal thinking because he elaborated a concept of normativity that was situated first and foremost in the process of living. Hence, for Canguilhem, ‘life is no longer exceptional to understanding or is rationality’s “blind spot” as Kant suggested. Rather, it is that which makes understanding and rationality possible’ (Brilman 2018; p. 26; see also Esposito 2008; pp. 188–191).

With respect to the conventional state-law-first perspective, there are at least two ways that life can be reinstated into its conceptualisation. The first of these is implied in the socio-legal accounts of law I have mentioned and is simply an extension of the fact that state law in any form is produced collectively by embodied beings. As Michel Foucault put it in his introduction to Canguilhem’s The Normal and the Pathological, the fact that human beings live in a ‘conceptually architectured environment’ does not mean that we are separated from life but only that we live ‘in a certain way’. Hence, ‘Forming concepts is one way of living, not of killing life; it is one way of living in complete mobility and not immobilizing life’ (1978, p. xviii). The idea of law, knowledge of law, concepts of law, the persona ficta of legal personality, are about living ‘in a certain way’ even as, in the Euro-colonial legal theoretical framework, we work hard to separate our legal concepts from physical life and from nature. The ‘certain way’ of western legal living involves, or presumes, this separation. It also does involve actual killing of life in the form of an anthropocenean/capitalocenean/colonial ecocide even as it necessarily remains continuous with and reliant upon life. Regardless of my training as a theorist in the western critical legal tradition to read the disavowal or othering of life from legal knowledge as an opposition, it remains a ‘certain way’ of living in which knowledge and life are factually continuous; the opposition or disavowal itself emerges from life. Therefore, against the image of the transcendence of law and its spatial mobility, it is clear that even the most abstract and positive practice of law, not to mention the multiple forms of non-state law, are made and sustained by living human beings (Ehrlich 1962; Ewick and Silbey 1998; Harding 2010; Davies 2017).

The paradox that remains entrenched in western thinking begins with a division of subject and object. Speaking of Canguilhem as a historian of science, Mary Tiles wrote that because ‘the quest for knowledge of whatever kind is specifically a life function … the subject and object of knowledge [are placed] in a peculiarly complex interactive relation which displaces subject/object oppositions’ (Tiles 1987; p. 143). The structure of concepts inherited in legal philosophy would have us believe that law is an abstract or distinct object of an abstractly knowing subject and therefore a categorizing system that leaves a remainder (life, nature, society, etc.).

Despite this inheritance, knowledge of law remains at the same time knowledge that is emergent from a life in which subject and object are not yet differentiated. The second method of re-instating life into law is biological. Interpreting Spinoza, Roberto Esposito says:

Not only every subject is sui juris but every behaviour carries with it the norm that places it in existence within a more general natural order. Considering that there are as many multiple individuals as there are infinite modes of the substance means that the norms will be multiplied by a corresponding number. The juridical order as a whole is the product of this plurality of norms and the provisional result of their mutable equilibrium. (2008, p. 187; see also Lemm 2020; p. 176)

Patterns like state law that are made by living beings are reliant upon and continuous with the normative processes that constitute life, even though these continuities might be very intricate and have transitioned through multiple layers of complex materiality. Despite the common insistence on separation within the limited western formulation of law, nothing understood as ‘human’ law is imaginable without its emergence from human life and our extended ecosystem relationships. Canguilhem’s account of a vital normativity places it within the processes that constitute and maintain life (Canguilhem 1978; Brilman 2018; Davies 2022). Organisms follow but also re-form the norms needed for the maintenance of life; according to Canguilhem norms emerge from the organism’s need to avoid suffering and enhance wellbeing in constantly changing circumstances (1978). New norms and new normals are the product of ongoing fine adjustments to the process of living, made by the organism itself. Human bodies and the multiplicity of life forms that constitute them, are normative systems. Law in its extraneous and representable form emerges from the multilayered dynamism of living norms. This is not to say that all life is equally a participant in all forms of law. Plural and often antagonistic normative registers with their associated political stratifications result in multiple familiar nonrecognitions and exclusions. Nor is it to suggest that there is nothing normative about the nonliving. Living and nonliving are materially continuous. Moreover, like the living, the nonliving has a normative direction – not a direction towards a predetermined norm but rather a norm brought into being by directional movement, such as the flow of a stream or the dissipation of energy (Davies 2022; pp. 72–87).

Knowledge, Law, and Nonhuman Life

Knowledge, law, and power are not attached uniquely to human life. As Canguilhem reasons, ‘the animal cannot resolve all the problems we present to it, but this is because these problems are ours and not its own. Could man make a nest better than a bird, a web better than a spider?’ (2008, p. xvii). The animal knows how to solve its common problems, because these are problems of living in its own particular milieu. It has learnt to solve them via evolutionary adaptation expressed through its own immanent norm-creation processes. The knowledge of the animal is a knowledge made from its own life and connections. It is a living knowledge and a living normativity, subject to change as circumstances change. In addition, if knowledge necessarily co-emerges with life, is it also possible to say that all life necessarily knows? In other words, does knowledge emerge from all life, not just animals, but also plants, and even microbial and unicellular life? Arguably, human forms of law and human forms of knowledge are continuous with a larger and, in evolutionary terms, prior field consisting of nonhuman law and knowledges.

The exceptionalism that has so frequently been claimed by philosophers for human capabilities, in particular our capability for rational thought, begins to unravel as soon as we place the human being within our ecosystem of similarly-constituted animals and plants. Nietzsche famously deflated human knowledge by expanding the frame of reference to infinite time and space and juxtaposing it with the perceptions of the mosquito, which has a similarly ‘self-important’ sense of its position in the world:

In some remote corner of the universe, poured out and glittering in innumerable solar systems, there once was a star on which clever animals invented knowledge. That was the haughtiest and most mendacious minute of ‘world history’ – yet only a minute. After nature had drawn a few breaths the star grew cold, and the clever animals had to die.

One might invent such a fable and still not have illustrated sufficiently how wretched, how shadowy and flighty, how aimless and arbitrary, the human intellect appears in nature. There have been eternities when it did not exist; and when it is done for again, nothing will have happened. For this intellect has no further mission that would lead beyond human life. It is human, rather, and only its owner and producer gives it such importance, as if the world pivoted around it. But if we could communicate with the mosquito, then we would learn that it floats through the air with the same self-importance, feeling within itself the flying center of the world. (Nietzsche 1954; p. 42)

Nietzsche adds that it is ‘strange’ that the human intellect should be over-inflated in this way, since we are otherwise too fragile to survive (1954, p. 43). We are deceived by knowledge into thinking that we are powerful. At the same time, the mosquito is also at the centre of its own world, itself a reminder that human beings are not the only subjects of knowledge. By contrast, Kant formed an opposite view in his equally memorable musings about the ‘starry heavens above and the moral law within’ from the end of The Critique of Practical Reason (1956, p. 166).Footnote 13 For both thinkers the immensity of the universe reduces the animal being to nothing; however, upon looking inside himself, Kant universalises the understanding, whereas Nietzsche sees such exceptionalism as hubris, reducing the human perspective to an equivalence with the mosquito.

The ‘clever animals’ passage from Nietzsche is used by Dorion Sagan to introduce an edited volume of works by biophilosopher von Uexküll (2010; pp. 1–2). Uexküll’s work is particularly resonant in providing insight into the interiority of life forms, and their creation of a phenomenal world centred on the subjective perspective specific to their own form of life. Each organism creates its own Umwelt – a world centred on its own being – from sensory processing of signals from its exterior. This occurs via a ‘function-circle [or cycle]’ (1926, p. 155) in which the exterior world is repeatedly sensed, processed, and turned into actions. Such a description of the reception of information and production of actions may appear consistent with a mechanical view of life, especially where organisms typically understood as lower in the hierarchy of being (such as microbes and insects) are concerned. But Uexküll insists that the reverse is the case. It is not movement that causes a response, but rather stimuli: ‘and a stimulus has to be noticed by the subject’ (2010, p. 46). Each living cell perceives and responds and therefore is a ‘machine operator’ not a machine, in turn co-ordinated by brain cells.

Uexküll endorsed Kant’s view that reality is a subjective experience (1926, p. xv). But rather than limit cognition to humans and universalise its fundamental principles, he located it in the sensory and interactive capacities of all animals. In this way, Uexküll relativises and pluralises the constitution of space and time for animal life. For the physicist, he says, ‘there is only one real world’ with ‘absolute laws’ that exist independently of any subject. The biologist, by contrast ‘maintains that there are as many worlds as there are subjects, and that all these worlds are worlds of appearance, which are intelligible only in connection with the subjects’ (Uexküll 1926; p. 70). At the same time, the notion of Umwelt is not restricted to the worlds produced by singular subjects – such worlds are layered and shared within species and can even be intertwined with the semiotic-normative worlds of other species (Meacham 2016; pp. 83–84). Where there is co-existence, there can be partially shared perceptual worlds and normative engagements. Once we learn to understand animals, says Uexküll, ‘we are enabled to fill the world around ourselves with a countless multitude of these iridescent worlds, and this a thousandfold enriches our own’ (1926, pp. 70–71). Affirming Nietzsche’s clever animals parable, Sagan comments that ‘it begins to look increasingly ridiculous for us to indulge our delusions of a radical cleverness’ (2010, p. 23). The blue whale, for instance, ‘may, in their giant Umwelten, have fabulous multisensory pictures of major portions of the ocean, images that, even if we had direct access to them, we couldn’t process, because our brains are too small’ (Sagan 2010; p. 23).

Nietzsche’s natural human is elaborated in Vanessa Lemm’s compelling interpretation of aphorism 230 in Nietzsche’s Beyond Good and Evil; via Nietzsche, Lemm evokes the extraordinary re-thinking of human nature that is consequential upon re-situating the human within nature – understanding the human as a natural being, or homo natura (Lemm 2020). Lemm traces Nietzsche’s homo natura to our vegetal as well as our animal natures: ‘Nietzsche speaks of the human being not only as an animal but also as the “human plant” …, a plant that has been uprooted from its natural growing ground’ (Lemm 2018; p. 207; see also Lemm 2020; pp. 63–68).Footnote 14 Plants are the primary producers for life since – unlike animals – they can turn sunlight and nonliving matter into nutrition. This basic generative capacity makes plants the model for all other human experience. ‘On Nietzsche’s hypothesis of the will to power, all higher organisms and psychic processes have thus never really superseded the “basic modus operandi of the plant-soul”: even in our highest endeavours, in the pursuit of truth, the human being remains a sublimated plant’ (Lemm 2020; p. 64, quoting Marder 2013; p. 40). By contrast, Uexküll distinguished plants from animals, each of us moving around within our phenomenal bubble, reforming it and ourselves adaptively. He argued that plants are unable to form an Umwelt, not because they don’t move, but because they lack organs to perceive and respond, as well as neurons to co-ordinate the functional cycle (1982, p. 33). But such a view of plants is increasingly challenged. In different ways, Indigenous peoples have long attributed agency and knowledge to plants (Viveiros de Castro 2012; Roncancio 2017). Even western scientists who have been held back (for better or worse) by conventional definitions and modernist preconceptions are now recognising that plants can learn, remember, communicate, and act (Gagliano 2018) and that their networks of mycorrhizal fungi function as neural processors enabling them to engage communally (Simard 2018). As Monica Gagliano explains, plants may not have neurons or brains, but they are nonetheless able to ‘evaluate their world subjectively and use their own experiences and feelings as functional states that motivate their choices’ (2018, p. 218). Like humans, plants constantly make choices to enhance their lives and survival, and even act communally to improve their ecosystems: ‘Through sophisticated cognition that is facilitated by their microbiomes, trees and plants are more perceptive, intelligent, and in control of their destiny than humans have ever given them credit for’ (Simard 2018; p. 207).

But even plants are not the end of the line (or the ‘lowest’ in conventional hierarchical terms) for the attribution of norm-producing and cognitive skills to nonhuman life. Lynn Margulis said, ‘consciousness, awareness of the surrounding environment, starts with the beginning of life itself’ (2001, p. 58). The narrative that finds cognition in all forms of life is undoubtedly at odds with more conventional biology, still grappling with the Cartesian attribution of mechanical form to all nonhuman life. However, as Reber and Baluška argue, ‘robotic species … with only hard-wired behaviors could not have survived in the constantly shifting, complex flux that marked the primordial environment’ (2021, p. 151). Adaptive responses require a subjective experience driven by an individual or collective desire to survive and replicate in the face of changing environments: it is implausible to suggest that life emerged with a pre-programmed set of responses to every possible environmental variation.

In ‘The Cognitive Cell’, Pamela Lyon analyses works that, starting at the beginning of the twentieth century, located intelligence, thinking, memory, cognition, IQ, and so forth, in microbial life. She outlines a ‘bacterial cognitive toolkit’ (2015, p. 2) consisting of a matrix of factors that can be seen across bacterial life, including the following: the ability to sense and perceive, the attribution of value (valence), and the capacities to adapt behaviour, retain information, to learn, anticipate, make decisions, and communicate (summarised from Lyon 2015; p. 4; see also Reber and Baluška 2021; Slijepcevic 2021; Hayles 2017; pp. 25–30). As Lyon says:

Like all organisms, bacteria adapt to changes in their environment by modifying their metabolism and behaviour. The traditional view is that this process depends on a limited number of highly canalized, inflexible mechanisms, which bear little resemblance to their behavioural counterparts in animals with nervous systems. However, evidence increasingly points to the idea that bacteria – particularly ecological ‘generalists’ as distinct from ‘specialists’ – are highly social, flexible responders, responders (however limited their actual response styles) that rely on a sophisticated suite of sensory and information-processing mechanisms. (ibid.)

In ‘How Low Can You Go?’, Dario Meacham argues that the marker for ‘cognitive’ behaviour is that reactions are not ‘chemically necessary’ but rather ‘involve recognition and reaction as a result of a selective process’ (2016, p. 80). Meacham explains that the theory of autopoiesis designates the cellular membrane as the dividing line between the cognitive unit and the ‘chemical environment’ (ibid.). But the cell has inherited its patterns – its cognitive norms – thorough evolutionary processes. Science might (mostly) draw the line for cognitive capacity at the microbial beginnings of life, but as Meacham argues, the embodied knowledge of proteins transmitted through generations is an ancestral knowledge (Meacham 2016; p. 81; see also Kovac 2000). The Umwelt of the cell or larger organism is preconditioned by its evolutionary history:

… autopoietic and other autonomous systems acquire evolutionarily selected ‘habits’ of interaction which help ensure the maintenance of certain patterns that sustain some degree of independence from environmental circumstances. These habits can be considered a form of embodied knowledge and can be transmitted across generations … or throughout populations … through the mechanisms of materially embodied knowledge. It is in this sense that operative meaning-structures or significative relations can pre-exist any one particular Umwelt to which they belong. (ibid.)

As patterns, such ancestral habits are not only embodied knowledge, they are also embodied law, an embodied living law. Such normative patterns are not pre-given as physical or chemical necessities since life could always have been otherwise within the limits dictated by what is chemically possible and probable. Nonetheless the laws of life are the result of apt choices that become performances or patterns and, over time, embodied norms. Hence, the autopoietic cell may not be the simplest normative and cognitive agent; perhaps it can be scaled down even further to pre-living molecular assemblages (Meacham 2016; p. 89; Kovac 2006).

Conclusion

Law and knowledge are about life and they are also emergent from life. Life is itself formed from cognitive-normative processes. Microbial and pre-microbial life seems to be a long distance from legal theory, especially in its mainstream western-colonial formulations. Such legal theory can (and probably will) go on without paying any attention to animal, plant and microbial intelligence and agency. It can proceed within its own autopoietic bubble of European-humanistic-colonial-legalism without concern for the normative systems of life forms in their individual and collective being. But, even using only the counter-stories of western philosophy and emerging scientific thought, it can also expand beyond its neo-colonial formulations to a perception of the connectedness of law with the processes of life and beyond. How much deeper can legal theory become when it is able to listen to and engage fully with other knowledge traditions?

The separation of law as a human construct from the land and life in general is a European-based separation, which can be suspended in order to pursue a more open enquiry into the nature of a plural nomos.Footnote 15 Although state law is often imagined to be completely different from physical, located, and social norms and practiced and studied as though it is separate, this separation is the result of collective intellectual line-drawing that is itself customary, historical, social, and political. That is not to say that state law is not real and operative (it is) but legal theorists do not need to be bound by a ‘politics of definition’ (Santos 2002; p. 91) that limits the use of the term ‘law’ to the state. The assumption that state law is definitive of law reinforces a colonial understanding of law, which includes the colonising European mindset. It is a worldview that excludes the prior law of First Nations peoples. Following Santos, Irene Watson calls the exclusion of Aboriginal law a potential ‘epistemicide’ or ‘juricide’ – the attempted ‘murder of knowledge’ (2017, p. 217), that is connected to ongoing ecocide. The first step in this process for colonial and neo-colonial renditions of law is the theoretical-political step of not seeing beyond the state in trying to identify and define law. Aboriginal law endures independently because it is not reliant for its authority on state recognition.

The decision to draw the line of what law is in much jurisprudential, critical, and even socio-legal thought at the abstractly positive notion of law may sometimes seem necessary. Nonetheless, it is possible for theory to deploy both a restricted political-discursive concept of state law (for largely practical, including critical, purposes) and a more extensive understanding of forms of law and normativity that surround and precede it (see generally Davies 2017). In other words, western legal theorists can balance their narratives about state law with an imaginative effort to see law at large; that is, legal theorists can situate the practical-juridical understanding of state law within the wider analytical frame constituted by all of the biophysical and social norms that constitute state law.

Expanding the analytical frame of law in this way is one method by which we might reshape western narratives of law. There are several reasons for doing so. A more Earth-sensitive narrative of law might promote better openness and recognition (and not automatic exclusion) of the prior authoritative laws of First Nations peoples that still operate in many localities across the globe. It might discourage western cultural superiority and the specific forms of human exceptionalism that it is bound up with. It might, in time, promote a more eco-sensitive view of the relationship between what is understood as human law-culture-society and the natural world, resulting (one would hope) in a more resilient and less extractive attitude to the Earth. And finally, there is value in knowledge as an end-in-itself and therefore in questioning and expanding longstanding conventional ‘truths’.

Turning legal theory upside down so that it starts rather than ends with the natural world does not result in a deterministic or reductive account of law. Whilst mechanistic accounts of nature remain popular, twentieth century science saw a strong trend towards a process view where nature is characterised by complex emergences which are nonlinear and shaped by probabilities rather than certainties. Both order and chaos are implicated in the ongoing generativity of a complex nature. Stuart Kauffman, for instance, characterised self-organising complexity as ‘on the edge between order and chaos’ (Kauffman 1993; p. 210; see also Prigogine and Stengers 1984). This analysis of the physical world provides a powerful metaphor for the complexity of order and change within human society and law. However, more than metaphor, it locates human law and society within the complex emergences that characterise the natural world (see generally Ruhl 1996; Murray, Webb, and Wheatley 2019). Finally, efforts to close the divide between nature and culture are sometimes understood as replacing dualism with monism; ‘natureculture’ replaces the bifurcated spaces of culture and the physical world. However, the term ‘monism’ is problematic in many respects because it resonates with unity. A better option, in my view, is to understand the result of anti-dualism as pluralism: terms such as pluriverse, multiverse, and multinaturalism better capture the ongoing differentiations of embodied, subjective normative becoming.