MUSIC: (INSTRUMENTAL MUSIC PLAYING)
PROF. BRONWEN MORGAN: Greetings, ladies gentlemen, and legal personae.
Yes, indeed, legal entities are people, too,
or at least they can acquire legal personality.
In part, because of the legal imagination
of lawyers who have come before.
A quality that I'm going to convince you today is crucial to our pathway
beyond sustainability and the ability to thrive in the 21st century.
Legal imagination is institutional imagination
and somewhat abstract as a result.
But picture a tapestry, a carpet woven of colorful threads.
But instead of those threads being red silk or yellow cotton,
those threads are made of rules,
entitlements, principles, aspects of organizational design.
Those are the threads that we weave together to create a stable,
creative and responsive structure to support the economy.
We can be a bit more concrete.
Take a prosaic example, like a business company.
What is a business company?
It's a corporation and legally speaking,
that's a fictional legal person whose liability
to pay debts is forever fixed
at a capped sum and whose human directors are forever shrouded
in a corporate veil brought to you by the 16th century.
PROF. BRONWEN MORGAN: Now, it's no accident that I'm using a corporation
as a prime example of legal imagination because
corporate inventiveness and creativity has
brought so much affluence and prosperity.
But at the same time, the cumulative extraction
wrought by our economic model on social
and environmental aspects of our lives is increasingly
visible and painfully urgent.
And it's for that reason that, for me, legal imagination matters.
It matters because what we need is to think through for law,
a task that's really different from that
of traditional environmental law.
That traditional task is more to create a safety buffer,
to prevent damage happening,
to slow it down; perhaps sometimes to restore that damage.
But we often end up with an image of law as a turgid knot of detailed
rules that actually prevents people from doing the good stuff.
And in some ways, that quality can protect the planet for a short time.
But the task that is required of law to craft a pathway
beyond sustainability is very different.
It's to build the foundations for a regenerative economy.
PROF. BRONWEN MORGAN: So a regenerative economy it's a mode of economic
development that goes beyond sustainability in
the sense that we are not slowing down the damage
that we're doing to environment or society.
We're doing more than that.
We're actually doing even more than restoring damage that has been done.
We're redesigning the economic machine,
redesigning it from the inside out so that instead
of tweaking it to prevent nasty side effects,
we actually build social and environmental values into the heart
of the engine and they drive the pathway of development.
So I got interested in this whole idea of regenerative economies.
When I first actually slowed down myself in my research career
and that was in my first year of maternity leave.
And at that time, I joined a movement called transition towns.
And transition towns brought ordinary people together
at a neighborhood level as ordinary citizens rather
than as professionals to figure out ways to it to
respond to the challenges of climate change.
And what we did during that period encompassed
everything from rip-roaring
street parties to creating the germ of a community-owned wind farm.
So it ran the gamut from technical to social
and creative all the way through.
It was suffused with imagination, humor, energy,
and these were qualities I felt that I really
wanted to bring back into my research,
along with the motivation of responding to our environmental challenges.
PROF. BRONWEN MORGAN: So when I thought about how I could bring those qualities to law,
I discovered to my surprise that economists had actually stolen
a march on the lawyers in the stakes of imagination.
Two lines of economic scholarship use
vivid metaphors to help us reimagine
how the economy might work in very useful, creative ways.
One of those is an iceberg, the other a doughnut.
Diverse economy scholars like Jake Gibson Graham teach us that
we should remember that the traditional economy, markets,
wages, property, and so on is really just the tip of an iceberg
and that innumerable practices underneath the waterline,
including cooperation, the sharing of resources, unpaid care work,
those invisible critical elements are actually
what makes the economy work as a whole.
And then comes Kate Raworth with the doughnut, a metaphor for a circular
model of economic development that helps us keep that iceberg
from melting by encouraging and creating a framework for policies to
always sit inside that sweet spot in the middle of the doughnut,
never falling below the social foundation into the hole in the middle
and never going beyond the ecological ceiling that caps what
we can do if we are to respect the planetary boundaries that create
a safe operating space for both humanity and the planet.
PROF. BRONWEN MORGAN: So these ideas captured a regenerative economy for me,
and the task now was to not let the economists
outdo the lawyers but to think about how
law could help bring these ideas alive.
So there are a number of different types
of laws that can help in this way.
And the first I would describe as a sparkly package of accessible,
evocative ideas like rites of Nature.
Rights of nature actually give natural formations legal personality,
not unlike the way a corporation has legal personality
but designed in a different way to protect nature at its core.
So we use human rights to protect human persons and rights of nature,
take that to the non-human world.
And the Blue Mountains Council west of Sydney
has recently resolved to conduct all
its policy operations with the guiding
light of Rights of Nature Principles.
But we could go even further.
There's a movement to craft a treaty that would
label ecocide a crime against humanity,
much as genocide was created as a crime against
humanity after the Second World War.
And that movement is gathering pace and energy in recent months.
And planning laws more concrete and local,
even they could be reimagined in these sparkly, evocative ways.
If we, for example, as suggested by a farmer recently on
a podcast on regenerative agriculture, asked planning,
decision-makers to think in terms of a thousand-year
planning horizon when assessing public benefit.
PROF. BRONWEN MORGAN: Now, these ideas are really of a sparkly kind.
They're quite accessible.
They're evocative.
I like to think of them as something relating to the constitution of
the biosphere or rewriting a social contract
with the planet, if you like.
They might seem a little wild and unlikely at times,
but they know more wild than the original idea of
legal personality that underpins the corporation.
But they lead us back to that corporation, which,
as I said, is a crucial aspect of legal imagination,
and they lead us into a different terrain
of legal imagination and creativity.
This is terrain that Indy Johar; He's a British architect,
and he calls himself an institutional designer,
and he's a passionate advocate of what he calls the BoRing revolution.
So the BoRing Revolution has a Capital B and a capital R,
and contrary to name it, encourages much play.
Now, he doesn't apply explicitly to law, but in the domain of law,
I see the boring revolution as encompassing creativity
around what we might call transactional law.
So transactional law is the technical devices that
enable us to exchange things on a market,
create a market in the first place,
ensure it's competitive, build organizations.
It's very much the dark matter of that economic engine.
It tends to exist under the hood,
and people don't usually lift that hood
to investigate its internal workings.
PROF. BRONWEN MORGAN: But if we think about things like creating a social enterprise or
implementing accounting rules or writing governance procedures,
even designing the architecture of a digital platform,
all of these are aspects of transactional
law and to creatively redesign them
so that they make that economic engine
work to move beyond sustainability.
That task that's so important to thriving,
that kind of creative redesign takes a very specific
and deep kind of focused legal imagination.
So I'll just give you a few examples from business
and money which are at the heart of transactional law.
So new forms of economic enterprise are really wonderful
site for the work of legal imagination,
and we can redesign the standard corporation into different forms.
We can create benefit corporations, for example,
which allow directors to pursue triple bottom line economic,
social and environmental goals on an equal par without
any fear of breaching directors' duties.
We could imagine a fare shares association
which protects assets like a charity does,
but actually pays out profits at the same time and not only to
investors and shareholders but also to workers and founders.
PROF. BRONWEN MORGAN: We could even create something called a disco.
Disco is short for distributed cooperative organization,
and these are entities who've
developed accounting rules that measure
not only the work that brings in money,
but also that invisible, caring work under the iceberg,
under the water level that keeps organizations
healthy and flourishing on a day to day basis.
We could also turn to money for some creative ideas.
Think of donating to a crowdfunding pitch.
But instead of becoming a donor, you actually,
by virtue of your money contribution,
become a co-owner of the project with attendant legal rights
to participate in decision making and get income streams.
Food Connect Brisbane, a project which connects
local consumers with farmers up in Brisbane,
raised $2 million for a distribution shed using this
method not long after Australia legalised it.
So there are endless ways to combine these
money and business ideas into a puzzle
that works together to create a legal foundation
for regenerative innovation.
And what I envisage when I think of this is the creation
of a whole new type of legal professional,
one that's alight with a fever for combining
these into inventive combinations
like benefit certified self-managed super funds with asset blocks.
And I hope that you can share some of
the excitement and energy that I feel when
I think of this institutional creativity, because this is the nub of it.
PROF. BRONWEN MORGAN: We need legal imagination not only to sow
exotic seeds like rights of nature
or planning laws with thousand-year horizons, but we need it, even more,
to actually nurture those seeds to help them grow
roots so that these new creations can stabilize
themselves and be in there for the long haul
for that pathway beyond sustainability.
And I hope that I'm convincing you that its actually when
law is at its most boring, that it matters most.
Despite that boring nature, I end with a metaphor
for law that can perhaps resonate
with the creativity of icebergs and doughnuts,
and that metaphor is a spiderweb.
It's not meant to evoke anything of a tangled net of sticky rules,
instead, it's a nod to biomimicry.
It's speaking to the idea that we can learn from nature,
that we can weave together that responsive
of pliable and yet incredibly strong structure
for a pathway beyond sustainability.
So we need to stop thinking of law as merely crystallizing the past or
stabilizing the present and let go of images of it choking the future
and instead use our legal imagination to open up the possibility for
law to weave creative pathways towards a regenerative future.