The invention of the environment as a legal subject

The legal regulation of the environment is exemplary of the formation, practice and challenge of modern legal discourse and governance. The latter part of the twentieth century has seen the emergence of environmentalism and the problematisation of the environment in terms of the management of hazard and risk. The social authority of law has meant that it has been inevitably implicated in the contestation and negotiation of environmental governance. In turn, environmental governance and discourse have required a certain refiguring of legal rationality as legal discourse has been confronted by the immanent critique of environmentalism. This thesis will focus on how the environment emerged as problematic and how it came to be governed and of legal interest. Several examples of legal thinking concerning specific environmental problems are analysed, and the manner in which the environment is constructed within the legal discursive domain is examined. Much modern knowledge and understanding regarding the environment developed in part from the specialisation of scientific discourse and experiment, which formed certain areas of expertise, including biology, ecology and toxicology. This scientific knowledge significantly contributed to governmental identification and elucidation of the environment. Modern ecology and associated technologies have facilitated the detailed mapping and auditing of physical environments, and have profoundly effected our modern appreciation of 'the environment' as an interdependent, dynamic and potentially fragile web of interdependent physical zones, spaces and activities. Modern environmentalism has emerged through the application of this type of technical scientific knowledge, in combination with certain forms of 'environmental sensibility' which treat the environment, not as a thing, or somehow 'out there', but as a dynamic process of which humans are a part, which has a history, an economy, and a power to transform and be transformed. The shape of modern environmental governance has been especially influenced by the scientific and ethical critique of environmentalism that connects the origin of ecological risks to technological application and commodity production. Throughout this thesis, specific aspects of the 'analytics of government' or governmentality approach derived from Foucault's writing on governmentality are taken up. Governmentality theory is largely concerned with the contingent relationship between knowledge and power; thus, with analysing specific discourses and associated spaces within which differing knowledge and forms of thinking interrelate and resist each other. The contestation and negotiation associated with environmental governance has confronted legal discourse and led to a refiguring of legal rationality. Legal governance of the environment has stretched and unsettled legal orthodoxy, as the environment does not readily fit into any of the usual categories pertaining to legal rights and interests. The environment, as a legal subject, is not simply a physical space; it is a contingent and instrumental concept, determined by human activity, social values and legal and non-legal calculation