Chaper 2: The Covenantal Foundations of Governance for the Community of Life

2.1 Introduction

A strong democratic society or state demands a people with a strong covenantal identity. Citizens in a democracy are obliged to show greater solidarity and commitment to one another in joint political projects than is demanded by hierarchical societies; citizens must do what rulers would otherwise do for them, but this will happen only if they have a strong bond, or love, for their political community and for their homeland.

Similarly, a sustainable society demands a people with a strong covenantal identity. Sustainability requires what covenantal commitment alone can offer: sacrifices for the common good, including the survival and well-being of all members, self-limitations on individual and collective behavior, and responsibilities that reach across the generations.

The case studies marshalled for this study exemplify efforts to achieve forms of governance that are both strongly democratic and strongly sustainable. They also reveal – most implicitly, a few explicitly – the critical role that covenantal relationships played in their success. Taken as a whole, the case studies suggest that new forms of ecologically informed and motivated democratic self-government are emerging that seek the flourishing of the whole community of life by drawing on human beings' deep-seated covenantal ideas and capacities for loyalty to one another and to the Earth they share. A few case studies go further to suggest that the liberating and Earth-affirming democratic and scientific values of modernity can find greater power and adequacy by drawing more explicitly on the covenantal teachings of the world's indigenous traditions.

A new prospect is opened to view, a prospect of no little moment given the geopolitical and environmental realities of the world in 2008: these case studies give us reason to believe that a more richly covenantal understanding of citizenship may enable our modern faith in democratic citizenship to be redeemed. The notion that the prime mark of human dignity is the right and responsibility to use reason to govern oneself in community with others according to universal moral principles and for the common good – this fundamental, but more often than not unacknowledged, assumption that undergirds most contemporary efforts by civil society and progressive political leadership to make economic and political power more just, non-violent and sustainable – has been severely battered in the 20th and 21st centuries. But now the possibility is presented that by focusing our attention on the largely neglected, if not sometimes outright rejected, covenantal dimensions of democratic citizenship, such as mutual entrustment, self-limitation, the common good, personal responsibility for the whole, and commitment to future generations, we may find reason to believe that human beings can morally self-govern themselves within the evolutionary and historical conditions of life on this planet.

That, at least, is the promise of the civil society initiatives on behalf of vigorous democratic forms of sustainable governance occurring throughout the world today, a cross-section of which are treated in this study, and of the international network of legal scholars, environmental experts, moral philosophers, and theologians who are seeking to understand and further this work. The upshot is the vision – distant, but nonetheless on the horizon – of a new form of global democratic covenant, a new ‘natural contract’ with the creative evolutionary and ecosystemic processes of life as the basis for a new Earth jurisprudence.225 As Michel Serres writes in A Natural Contract:

Through exclusively social contracts, we have abandoned the bond that connects us to the world, the one that binds the time passing and flowing to the weather outside, the bond that relates the social sciences to the sciences of the universe, history to geography, law to nature, politics to physics, the bond that allows our language to communicate with mute, passive, obscure things – things that, because of our excesses, are recovering voice, presence, activity, light. We can no longer neglect this bond.226

This is the bond that is now being affirmed in such international declarations as the World Charter for Nature,227 The Earth Covenant,228 The Earth Charter,229 The Manifesto for Earth,230 and The Manifesto for Life.231

In order to make explicit the covenantal dimensions of contemporary efforts to achieve forms of governance that are both strongly democratic and strongly ecological or sustainable, this chapter will:

2.2 The eclipse and recovery of covenant in world history

Covenants are open, unconditional commitments to be faithful to others regarding our most fundamental values and behaviours, and they have historically served as the spiritual and moral authority for foundational political agreements such as national constitutions and international treaties. This fact does not receive immediate recognition or approval in many cultures of the world today and our use of the term therefore requires explanation.

Perhaps the most important factor responsible for the eclipse of the term in public rhetoric is the process of secularization that took hold of western society after the religious wars of the 17th century and which separated the political order of the state from religious belief and affiliation. The latter became increasingly a matter of private and voluntary choice rather than state or national identity. ‘Covenant’ was originally a religio-political term unifying these two spheres.232 The actual history of covenant in the last several centuries is a double narrative – the first carried through religious traditions and organizations, and the second through political and social institutions and histories.

In the religious tradition, covenantal ideas remained explicit in the ritual practices of the church, such as the sacrament of marriage, and in confessional creeds and theologies. The strong association of covenant with the Abrahamic family of religious faiths – Judaism, Christianity, and Islam – further contributed to a notion that the very idea of covenant was somehow exclusively linked to these traditions. In fact, of course, covenantal relationships are common throughout the cultures of the world, from Scandinavian oath societies to Native American sacred pipe ceremonies to the vows of the Buddhist sangha and the Hindu practice of tying the rakhi.

In the political or secular tradition, covenantal ideas, purposes, and energies were channeled into less explicitly theological forms of public commitment and shared purpose, such as the ideal of the ‘commonwealth’.233 The Declaration of Independence of the United States of America, for example, is a classic covenantal agreement, authorised by the ‘laws of nature and nature's God’.234 The fact that it was followed by a written Constitution helped establish a pattern that has been often followed in subsequent legal history. A ‘soft law’ declaration or covenantal commitment to broad ethical purposes is followed by a ‘hard law’ constitution or treaty that derives its moral authority from the previous declaration.

In the case of the United States, this relationship is evident in the state constitutions that preceded the federal constitution. For example, one of the oldest written constitutions in modern history, the Massachusetts State Constitution, adopted in 1780, between the Declaration of 1776 and the Constitution of 1787, opens with an explicit acknowledgement that it is a covenantal relationship:

The body-politic is formed by a voluntary association of individuals. It is a social compact, by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good. It is the duty of the people, therefore, in framing a Constitution of Government, to provide for an equitable mode of making laws, as well as for an impartial interpretation, and a faithful execution of them; that every man may, at all times, find his security in them.235

In the two 1966 United Nations Covenants on Human Rights, which gave legal force to the 1948 Universal Declaration of Human Rights, the terminology of covenant was retained. In 1989 the IUCN Commission on Environmental Law launched a Draft Covenant on Environment and Development based on the United Nations General Assembly's 1983 endorsement of the World Charter for Nature.236

In the field of international law, the term ‘covenant’ has continued to be the word of choice for agreements in which one party's non-performance does not effect the other party's duty to perform. Rights and duties are not mutually linked as in a classic contract (‘do ut des’). While not a unilateral promise, a covenant is a mutual promise of two (or more) parties that is valid independently of whether the parties deliver on their promise or not. This gives a covenant a higher, more solemn validity than an ordinary contract, treaty, or convention.

Declarations, charters, compacts, conventions, manifestos, constitutions, treaties, even contracts may carry forward covenantal forms and aspirations in secular guise. ‘Compact’ shares with covenant, for example, the expectation that the parties will feel obligated to respond to each other beyond the letter of the law, and both require mutual consent to be abrogated, designed as they are to be perpetual or of unlimited duration. In the view of Emile Durkheim, a ‘social contract’ can have covenantal characteristics. Underlying every contract, Durkheim observed, is a ‘non-contractual element’, meaning that the contract between citizen and state – if it is binding – necessarily involves more than mutual self-interest. It is a ‘code’, he argued, a deep agreement or sacred bond that reflects moral relationships believed to be inherent in reality itself. It is not a mere consensus, however enlightened, in which everyone's self-interest, values, or choices coincide and which therefore exists by human agreement alone.237

In recent years, both the word and idea of covenant have begun to re-emerge in public intellectual life. In 1994 United States President Bill Clinton launched a ‘Covenant with America’ in pointed contrast with neo-conservative Newt Gingrich's ‘Contract with America’, and in 2006 Marion Wright Edelman and a consortium of progressive black leaders launched ‘The Covenant with Black America’.238 International political affairs theorists Robert Jackson and David Held have each written books setting forth their respective visions for global governance under the heading of covenant.239

2.3 The ontological roots of covenant and governance

All forms of human governance, formal and informal, explicit and implicit, display marks of covenantal relationships to such a degree that it is plausible to think of ‘governance’ as essentially a matter of the ‘modes of collective discipline’240 that are involved in the making, keeping, and reforming of covenants.

No community can long be governed without some form of mutual trust or covenantal bond that provides identity and purpose to its members and that is judged to be a fair distribution of powers, benefits, rights, and obligations. And no covenant can be successfully formed and kept that does not provide for a constitution or other legal structure that institutionalises the norms and political processes (or government) by which decisions regarding the relationships between the parties to the covenant will be made and implemented.

It follows that differences between forms of political governance may be traced ultimately to the different kinds of covenants in which they are embedded. Differences between covenants, in turn, may be traced to the different ways we choose to relate to one another and to the whole.

All human relationships, whether to self, other persons, nature, or God, are ambiguous – involving conflicts, competitions, and uncertainties as well as reciprocities, dependencies, and regularities. We each are born into a world of separate and unique individuals alongside other separate and unique individuals yet dependent upon other individuals and the relationships between us. We are both autonomous and interdependent, free and determined, voluntary and involuntary, nodes of discontinuity in the midst of continuity.

John Briggs calls it the ‘primary paradox’:

You and I and everyone else are, each of us, simultaneously separate and isolated individuals, and inseparable and indivisible from others, from humanity, from the universe – indivisible from All Else, the whole. We die alone yet death binds us in a common destiny. That is only one of many forms this paradox takes!241

This existential dilemma is expressed philosophically as the doctrine of ‘internal relations’ according to which ‘relations are not extraneous to an agent but constitutive, albeit not wholly determinative, of an agent's being and character’.242

One way to understand covenant is to see it as the most elemental way in which we resolve the ambiguity inherent in self-other relationships. In the primordial act of ‘self-government’ we bind ourselves to ourselves, to others, and to what we believe to be the comprehensive and true ordering of society and nature, and this becomes the paradigm, world view, or ultimate justification, in light of which we govern ourselves and our world.

What form of resolution elicits our ultimate commitment, differs, of course, among covenants. We may try to deny our essential relationality and bind ourselves to other individuals by whatever advantageous ‘deals’ or limited contracts serve our purposes, the dominant utilitarian rationality of contemporary public and economic life.243 Or we might lift our sights higher and seek on the basis of an ontology of the autonomous individual certain ‘universal’ rules of moral action for which all persons are duty-bound, such as the ‘categorical imperative’ offered by Immanuel Kant, or a social contract based upon a principle of ‘justice as fairness’ such as the ethical theory offered by John Rawls.244 Or we may go the opposite extreme and try to deny our essential individuality and diversity and make restrictive covenants based on common and inherited racial, gender, genealogical, or cultural identities.245 Or we may make hierarchical covenants, as in the fidelity of a vassal to his feudal lord, that resolve the ambiguity of being persons-in-relationship through power relationships, submission to authority, or some assumed distinction between inferior and superior qualities of being.246

2.4 The democratic ecological covenant

Or we may make covenants that seek to hold together the reality of both our individual autonomy and our communal interdependence, what are here named ‘democratic ecological covenants’. Such covenants encompass our obligations to ourselves, one another and the ‘greater whole of which we are a part’ – the Earth, the ‘greater community of life’, if not the universe itself.247

Alfred North Whitehead defines the metaphysical basis of democracy conceived as a normative social and ecological ideal in precisely such terms:

The basis of democracy is the common fact of value experience, as constituting the essential nature of each pulsation of actuality. Everything has some value for itself, for others, and for the whole. This characterises the meaning of actuality. By reason of this character, constituting reality, the conception of morals arises. We have no right to deface the value experience which is the very essence of the universe. Existence, in its own nature, is the upholding of value intensity. Also no unit can separate itself from the others, and from the whole. And yet each unit exists in its own right. It upholds value intensity for itself, and this involves sharing value intensity with the universe. Everything that in any sense exists has two sides, namely, its individual self and its signification in the universe. Also either of these aspects is a factor in the other.248

Conversely, Daniel Elazar uses comparable terms to define the ontology of covenant as intrinsically democratic:

What is characteristic of the covenantal approach as distinct from other kinds of pacts is the covenantal emphasis on the achievement of true liberty and equality within the framework of community while at the same time insisting that true community can only be a community that fosters liberty and equality... it (is) in the nature of the covenantal world view that once equality (is) found for some, equality (has) to be found for others, if not for all.249

Although democracy has been often linked over the course of western history with Promethean and anthropocentric outlooks on the world,250 and with merely procedural rather than substantive philosophies of law and politics,251 there have also been many subversive democratic movements that have sought to counter these tendencies and faithfully hold to what David Korten calls ‘true democracy’.252 Indeed, it is precisely the presence of a strong covenantal dimension that makes the difference between Promethean, anthropocentric, individualistic, and procedural interpretations of democracy and relational, ecological, community-centered ones.

In the 17th century, in the face of a rising Cartesian dualism, true democratic movements allied their protests on behalf of the dignity of the underclass with the belief that even the most ‘lowly’ and mundane of material reality is alive and pregnant with the potential for life and beauty.253 Natural rights doctrines were a primary source of notions of democratic human rights.254 The democratic and ecological ideas associated with figures such as Alexander von Humboldt, Henry David Thoreau, and William Wordsworth found new voice in 20th century covenantal commitments to ‘land citizenship’ and the ‘integrity, stability, and beauty of the biotic community’, famously associated with Aldo Leopold,255 and the determined efforts of Vandana Shiva to save the planet's native seed stocks for the sake of ‘Earth democracy’.256 Today there is a burgeoning literature on ecological democracy, which in the main consists of so many attempts to critically theorise the democratic covenantal commitments of the world's struggling conservation, green, environmental justice, civic environmentalist, and sustainability movements.257

Nelson Mandela could find no more powerful way in his 1994 Inaugural Address to bring all South Africans together into a new post-Apartheid covenant than by evoking the natural piety of a shared democratic ecological covenant:

I have no hesitation in saying that each one of us is as intimately attached to the soil of this beautiful country as are the famous jacaranda trees of Pretoria and the mimosa trees of the bushveld. Each time one of us touches the soil of this land, we feel a sense of personal renewal . . . That spiritual and physical oneness we all share with this common homeland explains the depth of the pain we all carried in our hearts as we saw our country tear itself apart in a terrible conflict, and as we saw it spurned, outlawed and isolated by the peoples of the world . . . We enter into a covenant that we shall build the society in which all South Africans, both black and white, will be able to walk tall, without any fear in their hearts, assured of their inalienable right to human dignity – a rainbow nation at peace with itself and the world.258

2.5 The prism of covenant

How do we describe the qualities of those kinds of covenants we are calling democratic and ecological and that are inspiring new forms of governance for sustainability? Covenant is prismatic, with many faces, a complex reality revealing different meanings from different angles of vision. The following is an attempt to give a multi-dimensional account of the phenomenon of democratic ecological covenant, some of whose features have been anticipated in the previous discussion.

2.5.1 The sacred reality of life 1

All covenants, as we have seen, are founded on some kind of comprehensive ordering of separate and inseparable individuals. This becomes the sacred reality – the ultimate truth and justification – in light of which we govern ourselves and our world. In the democratic ecological covenant sacred reality is conceived as a world of social individuals, a plurality of individual integrities bound in a common whole, and variously identified as the community of life, the evolutionary process, the spirit, or creativity of life, or through metaphorical extension, the ‘covenant of being’.259

2.5.2 The response of gratitude, reverence, and love

A covenant with the Earth begins in responses of gratitude, reverence, and love for particular persons, places, and forms of life that are experienced as gifts of this sacred reality. As theologian Paul Tillich well noted, religion is ‘being grasped by ultimate concern’ but ‘one is concerned not in abstracto, one is concerned concretely’.260 The most fundamental gift is the gift of life itself, the opportunity to participate in the communion of gift-giving and receiving, the sacred community-building processes of life. Covenant has its origin, in other words, in sacrament (from Latin sacramentum, oath of allegiance, solemn obligation) and is traditionally marked by a symbolic exchange marking the unity of vital powers of life such as a mixing of blood, exchange of rings, or sharing a common meal.

Democratic ecological covenants universalise these responses. They bear strong attachments to particular communities of shared origin and citizenship, and the places or geographies with which they are associated, and through them to the embracing universal community of shared origin and citizenship, the community of humankind and the life of the planet as a whole – what is sometimes referred to as planetary democracy or ‘Earth patriotism’.

2.5.3 Mutual entrustment

Through the gift exchanges of the community of life we receive the entrustment of the lives of others, as we entrust our own lives to them. We are born into, inherit, inevitably become participants in overlapping communities of mutual entrustment. This has fundamental moral import: our responsibilities and obligations to others are grounded in expectations built into the fabric of being, not something we invent and ‘add’ from outside. But we are fundamentally challenged how to respond. The act of covenant making is a commitment to others, directly or symbolically, that we are accepting the entrustment of their lives to us, and entrusting our lives to them and the deliberate acknowledgement of the responsibilities this entails. The covenants of democratic ecological citizenship make the consenting act of covenant making a conscious and deliberate acceptance of the fact that not only human lives, but all life now throughout the planet, has been ‘entrusted’ to us, and that we are being called in return to entrust the future of our species to the continuing flourishing of life. In this way notions of ‘stewardship’ and ‘public trust’ are grounded in covenantal obligations.

2.5.4 Trust

The acceptance of mutual entrustment implies relationships of ‘trust’ within the covenanted democratic community. By entrusting ourselves to our fellow citizens we entrust ourselves to their exercise of political power and we thereby risk all we have, including our very lives. We must ‘trust’ they will exercise that power responsibly. However, whether or not they do so in no way affects our responsibility for their entrustment, for their person hood or wellbeing, and our need, therefore, to act in a trustworthy way toward them. Here are grounds for the democratic covenantal obligation of treating even the criminal, the enemy, or the abuser non-violently, with compassion, and as a person with rights and moral claims for respect and care.

2.5.5 Promises

Democratic ecological covenantal commitment is a pledge of unconditional, open-ended faithfulness to the community of life, to the integrity and dignity of each of its members, to the principles and purposes that will enable its perpetual survival and flourishing, and to the persons and communities that share such a pledge. Covenantal promises, in contrast to contracts, are for good, for the long-term, and for this reason it is plausible to say that the aims of sustaining life ‘to the seventh generation’, and for new forms of ‘sustainable governance’, are inherently covenantal in nature.

2.5.6 Comprehensive ethical principles, purposes, virtues and laws

The principles to which we commit ourselves in covenant are comprehensive – that is, they affirm a vision, a purpose, a telos, a cause, a universal natural or moral law, a set of virtues, that when embodied in human conduct will fulfill the common good of the whole community of life. The comprehensive norms of democratic ecological covenants are necessarily broad and universal: they encompass virtues such as care, humility, respect, truthfulness, steadfastness, compassion; and principles such as righteousness (right relations); equity (fair treatment), justice (equal treatment), well-being, peace as wholeness of being; and human civil, political, economic and social rights. In democratic ecological covenants, these moral purposes, principles and laws, associated in most of human history with purely social conduct, are now extended to embrace our relations with nature as well, and in the process new content emerges, such as human rights to a healthful environment, and new purposes, such as preserving ‘the integrity, stability, and beauty of the biotic community’.261

2.5.7 The common good

Covenantal relationships of mutual entrustment often carry a strong sense of the common good. The ‘common good’ is that in which all the members of a community share, and not merely a collection of the goods of its individual members. This means that justice is a common good that involves a right relationship among the citizens of a community and their government and not only an attribute of individuals. In today's interdependent world, the community of life which blankets the Earth as a whole is the only self-sufficient community whose integral relationships can provide the conditions necessary for sustaining human and all other forms of life. It is therefore our greatest ‘common good’, whose primary public goods, such as the atmosphere, the oceans, the diversity of species and ecosystems, and the common cultural heritage of humankind, must be governed in common.

2.5.8 Self-rule and self-limitation

One of the most morally profound and politically significant aspects of covenant is the fact that it entails the act of human beings voluntarily binding themselves to moral, political, and cultural limits, or restraints on their behavior, individually and collectively. Here is a primary source of the rule of law in the governance of human affairs. The covenantal understanding of ‘self-rule’ and ‘self-constraint’ as integral to the ‘collective disciplines’ of human moral and political self-government urgently needs to be reclaimed today in face of the ecological and social limits of the planet.

Covenantal self-limitation is the recognition that life is ineluctably finite – we are, and will always be, limited creatures alongside other limited creatures, in a limited world. Yet we have the unique obligation as humans to self-impose the limits that are required to live sustainably and abundantly in this world. There is no escaping this reality. Even the Faustian ‘pact’ with the Devil for unlimited power over others and gratification of every human desire – the hidden covenant that so largely governs the world's commercial life today – requires adherence to limits, such as the lifetime of Faust himself.262 Humans can turn their capacity for covenant to perverse and demonic ends. We are therefore in constant need to remind ourselves that we are not ‘limitless animals’, but are created to live democratically, by self-rule, by self-imposed principles of mutual respect, care, and entrustment, or we cease to be human.

2.5.9 Dialogue

Democratic ecological covenants place a special value on dialogue because of the centrality of mutual persuasion and public debate and dissent to uncoerced covenantal consent and deliberative self-government. It also reflects the importance of attentive listening to the ‘voices’ of nature in environmental protection and restoration. Dialogue may be conceived as both means and end of covenant. Unless there is covenantal loyalty to dialogue, including commitment to critical reason and truth in the shared search for justice and sustainability, the uncertainties and conflicts involved in thinking together, agreeing and disagreeing, cannot be made mutually accountable and discussion will cease. But beyond this, a life of loving and free communication constitutes a profound realization of the potentialities of a relational universe as they have emerged in the course of human evolution.

2.5.10 New beginnings

Covenants are made in the midst of covenants; seldom if ever, are they unprecedented. Yet they are also always in some sense a ‘new beginning’ in that they seek to transform previous commitments so as to improve them in some way. ‘New’ covenants are occasioned when previous ones are disrupted by loss, threat, or conflict; or in the face of a betrayal that has occasioned an alienation or injustice that needs to be remedied; or when previous commitments are judged oppressive of the values and capacities of its members; or when new patterns of interdependence emerge and new responsibilities become recognised that need to be covenantally formalised as in the founding of a new community or political order. Democratic ecological covenants mark such a ‘new beginning’ for the human species in the radically interdependent world we inhabit today.

2.5.11 Reconciliation

Because of their transformative capacity, covenants, in contrast to other modes of moral life, have ways of addressing the wrongs humans do so as to restore human self-respect and moral standing in the community. By acts of forgiveness, repentance, compensatory justice, and truth-telling, relationships can be healed, reconciliation can take place, and new covenantal beginnings can be made. Democratic ecological covenants in countries like South Africa are pioneering practices such as ‘reconciliation ecology’ that seek in a similar way to compensate for the abuses humans have perpetuated on nature. In other social contexts ‘restoration ecology’ is being pursued as a way of transforming and renewing our covenants with the community of life.

2.5.12 Power

Perhaps more than any other modern political philosopher, Hannah Arendt has emphasised how political compacts or covenants in which persons bind themselves together by promises based on comprehensive principles of reciprocity and mutuality, presupposing equality, create liberating political power. This was the engine, she argued, for the emergence of self-governing democratic communities in the modern world, for it contains in nuce the republican principle, according to which power resides in the people, and there is a mutual subjection and constitution of laws for the common good. Her eloquent description of what enabled the success of the 18th century revolutions equally accounts for the success of the civil society organizations that have taken leadership in achieving democratic governance for sustainability in this study:

Power comes into being only if and when men join themselves together for the purpose of action, and it will disappear when, for whatever reason, they disperse and desert one another. Hence, binding and promising, combining and covenanting are the means by which power is kept in existence; where and when men succeed in keeping intact the power which sprang up between them during the course of any particular act or deed, they are already in the process of foundation, of constituting a stable worldly structure to house, as it were, their combined power of action. There is an element of the world-building capacity of man in the human faculty of making and keeping promises. Just as promises and agreement deal with the future and provide stability in the ocean of future uncertainty where the unpredictable may break in from all sides, so the constituting, founding, and world-building capacities of man concern always not so much ourselves and our own time on earth as our successor and posterities. Action is only human faculty that demands a plurality of men; and the syntax of power is that power is the only human attribute which applies solely to the worldly inbetween space by which men are mutually related, and combine in the act of foundation by virtue of the making and the keeping of promises...263

2.5.13 A covenanted people

Those who witness to each other's oath or pledge of covenantal fidelity become a covenanted people. Judgments of success or failure fall on this covenanted community as a whole as well as on each individual. The covenant of democratic ecological citizenship is thus an explicit commitment to the inclusive community of life as the primary community of mutual entrustment and loyalty, and to all nations, peoples, and parties who join in commitment to the fulfillment of that inclusive community. The many ‘declarations’ of global ethics, such as the Earth Charter, now seeking to influence the trajectory of geo-political and economic development worldwide, will need to become the ‘charters’ of such a covenanted movement, locally and internationally, if they are to materially impact human behavior and social policy.

2.5.14 Federalism

A federal political structure is one composed of equal confederates that freely bind themselves to one another in a common whole that retains their respective identities. Daniel Elazar argues that societies based on democratic covenants inevitably lead to federal forms of constitutional and international political arrangements:

Polities founded by covenant are essentially federal in character, in the original meaning of the term, whether they are federal in structure or not. That is to say, each polity is a matrix compounded of equal confederates who freely bind themselves to one another so as to retain their respective integrities even as they are bound in a common whole. Such polities are republican by definition and power within them must be diffused among many centers or the various cells within the matrix.264

The model of global democratic and ecological governance inherent in the covenantal principle may be called ‘cosmopolitan/regionalism’; pacts are built on pacts from the ground up; each society's power is both limited and shared with every other society. Each citizen and each society exercises ‘common but differentiated responsibilities’ for the Earth as a whole in recognition of the fact that the community of life is something that can only be realised as a whole, a covenant of covenants. We realise our lives not separately, but as individuals-in-community – the foundational promise of democratic ecological covenant.265

2.6 The covenantal struggles of our time

The covenantal allegiances we choose are the decisions we make regarding what part we will play in the covenantal dramas of history. From the moment of birth we are enmeshed in a plurality of competing, overlapping covenantal obligations and narratives – covenants of family, friendship, gender, race, class, profession, party, religion, nation, culture – each competing for our allegiance. The stories of our personal and collective lives move between remembrance of covenantal foundings, faithfulness, betrayals, and reformations and the promise of covenantal fulfillments, renewals, and new beginnings, always with the present under judgment, pregnant with possibilities for the future, and requiring us to decide whether and how to honor the covenantal pledges of the past to which we are still bound. Often some crisis occurs, such as the one now facing the world in respect to the sustainability of the ecological integrity of the biosphere, that requires a response that will have more than ordinary consequences for the future of ourselves and our society. At such times we are compelled to decide where in the great unfolding dramas of history we will take our stand – which covenant, or which interpretation of covenant, we will give our ultimate or primary loyalty.

The various covenantal traditions of the world have widely different views concerning who and what is included in the covenanted community and what commitments are entailed; how covenants are to be transmitted and kept and whether and how they are open to reform or termination; the penalties for challenging, breaking, or betraying them (their definitions of treason, heresy, an apostate, infidelity); and on what terms they should be open to persons of different cultural, ethnic, or political backgrounds. Such views play a determinative role in shaping the course of human history, and in no way more so than in our history with nature.

Although they may not name it as such, proponents of sustainable forms of democratic governance such as those represented in the case studies of this study recognise that our present historical crisis requires us to engage in a struggle for the covenantal loyalties of contemporary human societies.

2.7 Making, keeping, reforming and renewing the democratic covenant of life

There is widespread consensus that the areas of environmental law in which greatest progress is occurring are at local, state, and regional levels.266 There is also growing recognition of the contributions that local communities are and can potentially make to the reform of international law.267 In Global Environmental Politics, Ronnie Lipschutz assesses the various approaches to strong global environmental protection that might succeed and finds greatest promise in political and legal actions at the local level:

[A]ctivists must still affect the beliefs and behaviours of real human beings, whose social relations are, for the most part, highly localised. Ideas do not fall from heaven or appear as light bulbs; they must resonate with conditions as experienced and understood by those real human beings, in the places that they live, work, and play. Moreover, it is in those local places that politics, activism, and social power are most intense and engages people most strongly.268

Rebecca Todd Peters and Richard Falk, in their respective reviews of the major theories of globalization currently vying for political and economic supremacy, concur in their judgment that the approach characterised as ‘globalization from below’ is the most ethically justified.269

The case studies that follow evidence the creative civic activity that is taking place in local, national, and regional arenas in the field of environmental law. They show a decided shift away from ‘management’ and toward ‘governance’ as the decisive factor in sustainability of ecosystems and natural resources.270 It is not surprising, therefore, in light of the previous discussion regarding the covenantal foundations of governance and law, that they also provide evidence for how the making and keeping of democratic ecological covenants is influencing and guiding this activity, and the positive changes in political and legal agreements and decisions this is effecting in different societies across the world.

There are a variety of ways in which the influence of democratic ecological covenant-making and keeping, and reform and renewal may be discerned in these case studies.

2.7.1 Normative democracy

The first, and most apparent, is the way all these case studies demonstrate a strong commitment to the principles of what Richard Falk calls ‘normative democracy’, and others ‘good governance’.271 These principles as explicated by Falk reappear frequently in contemporary literature on governance and in environmental legal theory and practice, and constitute what in effect is a massive consensus and commitment (an implicit if not explicit covenant) to democratic values and practices: consent of citizenry; rule of law; human rights; participation; accountability; public goods; transparency; and nonviolence.

Louis J. Kotzé, for example, speaks of the new ‘democratic order’ that was established in South Africa in 1994 with ‘new democratic laws’ focused on ‘greater transparency, public inclusion in the broader governance effort, promotion of equality and justice, and upliftment of the previously disadvantaged and former excluded sectors of society’. Porto Alegre is an internationally celebrated democratic experiment in participatory budgeting.272 Melinda Janki shows how the Guyana tribes were successful in negotiating an agreement with the government that gave them ownership of tribal lands well beyond what had pertained previously by working non-confrontationally within the democratic constitutional framework of their country.

2.7.2 Civil society

Most case studies demonstrate how mutually committed or covenanted voluntary associations seeking strong sustainability and justice goals, and working under the banner of inclusive citizen or ‘multi-stake holder’ participation, are the primary agents of positive social and legal change.

Christina MacLeod documents effective outcomes from ‘cooperative management schemes and collaborative efforts to be inclusive of all stakeholders’ in Canada, and Willemien du Plessis draws a portrait of the activities of the civil society organization Earthlife, which took responsibility for advancing the rights and claims of all citizens to a sustainable ecology. In consequence, it earned the admiration of South African courts because ‘their interest and motivation is selfless, being to contribute to environmental protection in the common good’. Earthlife was concerned to exercise the ‘positive freedom’ made possible in a democratic society, which is another way of speaking about citizens taking covenantal responsibility for their biotic and human communities.

2.7.3 Covenants with the sacred reality or law of life

The case studies provide two examples of democratic covenants that are explicitly conceived as covenants with the reality of nature or the sacred source of existence, and therefore more than agreements among humans.

Ricardo Libel Waldman emphasises the importance of grounding the process of democratic citizen participation in Porto Alegre in an objective reality or natural law if relativism is to be avoided:

There is a reality in which we all live and define ourselves, though we can not know all about it. It's only with that in mind that we can make any sense of political debate. If the reality is irrelevant, because it is not knowable independently of political or other point of view there is no way debate can win any level of rational consensus.

Jack Manno gives a striking account of how the Onondaga land rights suit against the State of New York is ultimately grounded in the covenant of the Great Law of Peace which the Haudenosaunee people considered the underlying spiritual and ethical constitution for all their practices of community governance and the ‘silver chain’ of treaty-making. The Great Law is the covenant of life described by the Peacemaker in his ‘Thanksgiving Address’, an oral tradition handed down from generation to generation. Manno describes it in these terms:

Every human being who is a member of a family, clan and nation has certain responsibilities and rights. Everyone has a responsibility to help protect and to preserve the earth, Our Mother, for the benefit of her children seven generations to come. Everyone has the right to come and to go, free to live in harmony with the laws of nature, free to enjoy liberty, to live in a natural way, as long as one continues to give thanks for all land and life.

The covenant of life is not limited to human beings. In the Thanksgiving Address ‘each part of the community of life is acknowledged and appreciated for carrying out its [common but differentiated] duties and following its original instructions from the Creator’.

Manno also shows how the example of the Haudenosaunee covenant of life and the special status it accorded women in the community served as an inspiration for American reformers and deepened their understanding of democracy.

2.7.4 Making new covenants

Examples of how new principles and policies of governance are established as a result of extensive processes of ‘covenant making’ may be found in Julien Bétaille and Ricardo Stanziola Vieira's account of the recent French ‘Grenelle de l'environnement’, modeled on the Grenelle Accords that were negotiated during the May 1968 riots at the French Labor Ministry, located on the Rue de Grenelle in Paris; and Karen Bubna-Litic's description of the struggles of the members of a new eco-village in Australia to articulate the fundamental covenantal obligations that will inform their community's governing constitution and enable it to realise its aim of ‘Caring for the Earth, caring for people, living creatively together’.

2.7.5 Holding societies accountable to covenants

Several other case studies focus on holding societies accountable to authoritative moral and legal commitments in existing constitutions, treaties and domestic legislation. Nicola Wheen describes efforts to hold New Zealand accountable to the international responsibilities it assumed under the Convention on Biological Diversity with regard to the protection of endemic Cetaceans. Louis Koetzé describes how plantiffs won a suit on the basis of the pace-setting covenantal commitment of the South African Constitution to environmental rights:

Everyone has the right:

  1. to an environment that is not harmful to their health or well-being; and

  2. to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that –

    1. prevent pollution and ecological degradation

    2. promote conservation; and

    3. secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development

2.7.6 The power of re-covenanting

Several case studies disclose how the process of re-covenanting can provide opportunities for correcting covenantal abuse or improving covenantal understandings. These opportunities can come about as a result of two kinds of circumstance: (1) from betrayals or failures to live up to previous covenants that were democratically agreed upon and included strong ecological responsibilities, or (2) because the founding agreement included the expectation of re-covenanting as a part of the original covenant.

The grievances of the Maori landowners described in Nicola Wheen's case study are longstanding and stem from breaches of the principles of the 1840 Treaty of Waitangi, an example of the first circumstance.

Jack Manno's two case studies illustrate both situations. In one case study, the Onondaga are seeking to engage in a process of re-covenanting with the United States because of its betrayal of its original treaty with them. In his second case study, he describes the Great Lakes Water Quality Agreement between the United States and Canada as having several basic covenantal qualities. It seeks collaboration on how to achieve a set of shared goals rather than negotiation on how to achieve a balance of interests or to protect the rights of each party; by shared commitment to the maintenance of the ‘ecological integrity’ of the Great Lakes, it functions implicitly as a covenant between the people of this vast region and the freshwater ecosystem that defines it; and it explicitly calls for regularly scheduled opportunities for improvements in the stipulations of the agreement, that is, for a process of re-covenanting.

2.7.7 Conclusion

These case studies show how in many societies throughout the world membership in the covenant of democracy, and grateful celebration of the common but differentiated contributions all members make to its fulfillment, is being extended to the whole community of life. As a consequence, these societies are achieving greater social justice and self-determination for their people, and greater sustainability for their environments. We conclude that all contemporary societies will require such a transformation in their covenantal identity, an acknowledgement of the mutual entrustment that binds all their citizens with one another and with the rest of nature, if they are to continue to enjoy the great gift exchanges of life on planet Earth.

225 Cullinan, C. Wild Law: A Manifesto for Earth Justice (Green Books: Totnes, Devon, 2003).

226 Serres, M. The Natural Contract (University of Michigan Press: Ann Arbor, 2000) translation of Le Contrat Naturel, 1990), p.48.

227 Burhenne, W. E. and Irwin, W. A. The World Charter for Nature: A Background Paper (Erich Schmidt Verlag: Berlin, 1983).

228 The Earth Covenant was circulated by Global Education Associates and signed by over 2 million people worldwide in 1996.

229 Soskolne, C. Sustaining Life on Earth (Lexington Books: Lanham, Maryland, 2007), pp. 425–432. Several prominent proponents of the Earth Charter have explicitly referred to it as a ‘covenant with Earth’ or ‘Gaia’. See Engel, J. R. ‘A Covenant Model of Global Ethics’ Worldviews Vol. 8, No. 1, 2004, pp. 29–46.

230 Mosquin, T. and Rowe, S. ‘A Manifesto for Earth’ Biodiversity, Vol. 5, No. 2, 2000, pp. 3–9.

231 A manifesto for life: in favor of an ethic of sustainability' Capitalism, Nature, Socialism, Vol. 13, No. 4, 2002, pp. 121–125.

232 Elazar, D. ‘Covenant as a Theo-political Tradition’ In Covenant and Constitutionalism (Transaction Publishers: New Brunswick, New Jersey, 1998), pp. 243–272.

233 Elazar, D. Covenant and Commonwealth: From Christian Separation through the Protestant Reformation (Transaction Publishers: New Brunswick, New Jersey, 1996), pp. 311–335

234 The Declaration includes the six basic elements of the covenantal formula that has been passed down from generation to generation from earliest times: 1) a preamble indicating the parties to the covenant; 2) a prologue, historical or ideological, establishing the setting or grounding of the covenant; 3) the operative section of the covenant, as stipulations, or what is agreed; 4) provisions for public reading (proclamation) and deposit of the text for safekeeping; 5) the divine witness to the covenant; and 6) the advantages of performance (blessings) and sanctions for nonperformance (curses). Elazar, D. Covenant and Constitutionalism (Transaction Publishers: New Brunswick, NJ, 1998), pp. 47–75.

235 Ibid., p.75. The Constitution required all state officials to swear a full oath to the Constitution and the commonwealth before the people and their representatives in full assembly. See Witte, J. Jr. God's Joust, God's Justice: Law and Religion in the Western Tradition (William B. Eerdmans Publishing Company: Grand Rapids, Michigan, 2006), p.154ff for the New England covenantal political theology informing this document, and the conventional view that the oath was a ‘a cement of society’ and ‘one of the principal instruments of government’ for it invoked and induced the ‘fear and reverence of God’.

236 IUCN Commission on Environmental Law, Draft International Covenant on Environment and Development (IUCN: Gland, Switzerland, 1995).

237 Bellah, R. and Hammond, P. E. Varieties of Civil Religion (Harper and Row: New York, 1980), p. 202.

238 Smiley, T. The Covenant with Black America (Third World Publishers: Chicago, 2006).

239 Jackson, R. H. The Global Covenant: Human Conduct in a World of States (Oxford University Press: New York, 2000); Held, D. The Global Covenant: the Social Democratic Alternative to the Washington Consensus (Polity Press: Cambridge, 2004).

240 Taylor, C. ‘Living with Difference’ In Allen, A. L. and Regan, M. C. (eds.) Debating Democracy's Discontent: Essays on American Politics, Law and Public Philosophy (Cambridge: Belknap Press, 1998), p. 222.

241 Briggs, J. ‘Ambivalence’ unpublished paper presented at the Oracle Institute, Black Earth, Wisconsin, 2005, p. 5.

242 Sturm, D. Community and Alienation: Essays on Process Thought and Public Life (University of Notre Dame Press: Notre Dame, 1988), p.12.

243 Brown, W. Edgework: Critical Essays on Knowledge and Politics (Princeton University Press: Princeton, 2005), pp. 37–59.

244 See Mudge, L. S. ‘Moral Hospitality for Public Reasoners: Covenantal Models for Contemporary Social Contracts?’ In Mudge, L.S. and Wieser, T. (eds.) Democratic Contracts for Sustainable and Caring Societies (WCC Publications: Geneva, 2000), pp. 23–47.

245 Mills, C. The Racial Contract (Cornell University Press: Ithaca, 1999); Pateman, C. The Sexual Contract (Stanford University Press: Stanford, 1988).

246 See Hillers, D. R. Covenant: the History of the Biblical Idea (Johns Hopkins University Press: Baltimore, 1969) for an account of how the suzerainty treaties of the ancient Near East were the source of early western covenantal ideas.

247 Quotations are from the Earth Charter, supra note 229, p. 430, p. 425.

248 Whitehead, A. N. Modes of Thought (Macmillan: New York, 1938), p.111.

249 Elazar, D. supra note 233, p. 343.

250 Deneen, P. J. The Democratic Faith (Princeton University Press: Princeton, 2005).

251 Engel, J. R. ‘The Earth Charter as a New Covenant for Democracy’ In Miller, P. and Westra, L. (eds.) Just Ecological Integrity: The Ethics of Maintaining Planetary Life (Rowman and Littlefield: Lanham, MD, 2002), pp. 37–52.

252 Korten, D. C. The Great Turning: From Empire to Earth Community (Kumarian Press: Sterling, VA, 2006), p. 353.

253 Toulmin, S. Cosmopolis: The Hidden Agenda of Modernity (Free Press: New York, 1990); Hill, C. The World Turned Upside Down (Penguin Books: London, 1972).

254 Nash, R. The Rights of Nature: A History of Environmental Ethics (University of Wisconsin Press: Madison, 1989).

255 Engel, J. R. ‘What Covenant Sustains Us?’ In Bosselmann, K., Westra, L., and Westra, R. (eds.) Reconciling Human Existence and Ecological Integrity (Earthscan: London, 2008), p. 288.

256 Shiva, V. Earth Democracy: Justice, Sustainability, and Peace (South End Press: Cambridge, MA, 2005), pp. 1–12.

257 Representative English language texts include: Barry, J. and Dobson, A. ‘Green Political Theory: A Report’ In Gaus, G. (ed.) Handbook of Political Theory (Sage: London, 2004), pp. 180–191; Curtin, D. Chinnagounder's Challenge: The Question of Ecological Citizenship (Indiana University Press: Bloomington, 1999); Dobson, A. Citizenship and the Environment (Oxford University Press: Oxford, 2003); Dobson, A. and Eckersley, R. (eds.) Political Theory and the Ecological Challenge (Cambridge University Press: Cambridge, 2006); Doherty, B. and de Geus, M. (eds.) Democracy and Green Political Thought: Sustainability, Rights and Citizenship (Routledge: New York, 1996); Dryzek, J. S. The Politics of the Earth: Environmental Discourses (Oxford University Press: Oxford, 1997); Eckersley, R. The Green State: Rethinking Democracy and Sovereignty (The MIT Press: Cambridge, MA, 2004); Mathews, F. (ed.) Ecology and Democracy (Frank Cass: London, 1996); Minteer, B. A. and Taylor, B. P. (eds.) Democracy and the Claims of Nature: Critical Perspectives for a New Century (Rowman and Littlefield: Lanham, MA, 2002); Morrison, R. Ecological Democracy (South End Press: Boston, 1995).

258 Mandela, Nelson, In His Own Words (New York: Little Brown and Company, 2003), pp. 68–69.

259 Engel, J. R. ‘What Covenant Sustains Us?’ supra note 255, p. 281.

260 Adams, J. L. Prophethood of All Believers (Beacon Press: Boston, 1986), p. 207.

261 Leopold, A. A Sand County Almanac (Oxford University Press: New York, 1949), p. 224.

262 Berry, W. ‘Faustian Economics: Hell Hath no Limits’ Harper's Magazine, May, 2008, pp. 35–42.

263 Arendt, H. On Revolution (Viking: New York, 1963), p. 174.

264 Elazar, D. Covenant and Polity in Biblical Israel: Biblical Foundations and Jewish Expressions (Transaction Publishers: New Brunswick, NJ, 1995), p. 38.

265 Engel, J. R. ‘A Covenant of Covenants: A Federal Vision of Global Governance’ In Soskolne, C. (ed.) Sustaining Life on Earth: Environmental and Human Health Through Global Governance (Lexington Books, a division of Rowman & Littlefield Publishers: Lanham, MD, 2007), pp. 27–40.

266 Engel, K. and Saleska, S. ‘Subglobal Regulations of the Global Commons: The Case of Climate Change’ Ecology Law Quarterly Vol. 32 No. 2, 2005, pp. 183–233.

267 Rajagopal, B. International Law from Below: Development, Social Movements and Third World Resistance (Cambridge University Press: New York, 2003); Santos, B. and Rodríguez-Garavito, C. A. (eds.) Law and Globalization from Below: Towards a Cosmopolitan Legality (Cambridge University Press: New York, 2005).

268 Lipschutz, R. D. Global Environmental Politics (CQ Press: Washington, D.C., 2004), p. 175.

269 Peters, R. T. In Search of the Good Life: The Ethics of Globalization (Continuum: New York, 2004); Falk, R. On Humane Governance: Toward a New Global Politics, The World Order Models Project Report of the Global Civilization Initiative (Pennsylvania State University Press: University Park, 1995), pp. 73–75.

270 A further example is the work being done on the Theme on Governance, Equity, and Rights (TGR) by the IUCN Commission on Environmental, Economic and Social Policy, see

271 Falk, R. The Declining World Order (Routledge: New York, 2004), pp.95–99,

272 Santos, B. ‘Two Democracies, Two Legalities: Participatory Budgeting in Porta Alegre, Brazil’, in Santos, B. and Rodriguez-Garavito, C. A., supra note 271, pp. 310–338.

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