Portrait of a researcher
As doctor in environmental law, Yaffa Epstein focuses on developing methods for interdisciplinary collaboration between natural and legal scientists. Terms and concepts rooted in the natural sciences permeate the law.
This is especially true in “new” legal fields like environmental and medical law, but is also true in many “classic” fields such as tort law, in which, for example, scientific expertise is often needed to determine risk or fault. Differing interpretations of these terms and concepts in different disciplines affect decision making and make it difficult to ascertain whether the law is being complied with. When scientific concepts are made part of the law, reference to the natural sciences is often necessary in order to properly understand or apply the law. When judges or other decision makers misunderstand or misuse natural science, the laws’ ability to achieve legislative goals may be hindered.
“Disagreement with scientists does not always mean that jurists are incorrect however. In other cases, decision makers must interpret terms that have different meanings in law and science, or must choose between differing scientific interpretations. How the decision maker understands these scientific ideas determines whether a species may be hunted, whether a food product can be sold, or whether a production technique will be allowed to continue”, explains Yaffa Epstein.
Yaffa often works with natural scientists to analyze scientific concepts used in EU laws. Another area in which she applies her interdisciplinary methods is the relatively recent jurisprudential development of rights of nature. One of the most surprising legal developments of the last decade has been the recognition of rights for nature. In just a few years, the idea of endowing nature with rights or legal personhood has gone from absurd to reality in a growing number of jurisdictions. These new rights have led to some judicial wins for nature protection, but thus far have not yielded impressive results.
“It is yet unclear whether this legal trend as reflected in Ecuador, Bolivia, Colombia, New Zealand, parts of the United States, India, Mexico and even France (in its New Caledonian territory) is the beginning of a new global rights paradigm, or a passing fad that will soon be forgotten”, continues Yaffa.
In a recent perspective article published in Science, “A Rights Revolution for Nature: Introduction of Legal Rights for Nature Could Protect Natural Systems from Destruction”, she and two ecologist colleagues argue that if these laws and new legal ideas are to succeed and indeed continue, they must be well grounded in legal theory and ecology. They identify some areas of inquiry for which legal-ecological analysis could support the implementation of legal rights for nature, including:
How is the rights bearer defined? How to define “nature” is a long-debated philosophical and scientific question. Natural entities for which legal rights have been recognized in some jurisdiction include Mother Earth, nature, species, natural communities, ecosystems, rivers, glaciers and waterfalls. Each of these types of entity comes with its own definitional challenges—for example, how far does a river extend, does it include tributaries, river bed, catchment, rain water etc. While some natural entities, such as species, may be easier to define scientifically, others such as “Mother Earth” may fit more easily within certain individual legal systems.
What rights does nature have? Rights for nature that have been recognized or suggested include legal personhood and procedural rights, representation, property rights, the right to life, diversity of life, clean air, evolutionary capacity, protection and restoration. Natural science expertise is again required to understand many of these rights, for example to interpret what a right to evolutionary process entails.
How are nature’s rights enforced? In some systems, the natural entity is appointed a guardian or representative, in some the public is allowed to bring litigation on nature’s behalf, and in others it may still be unclear how nature’s rights could be vindicated. Nature cannot assert its own rights before a court, but natural scientists can help determine when rights are violated and how they can be remedied.
“However these questions are resolved in various legal systems, the effectiveness of rights of nature will depend to a large extent on those systems’ ability to integrate ecological knowledge. I hope that by highlighting these open questions in implementing legal rights for nature for a broad audience of natural scientists, my research will lead to further interdisciplinary scholarly examination of whether a rights framework is an appropriate means for protecting the environment, and if so how these rights can be effectively realized”, concludes Yaffa Epstein.