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[4] Infrastructure for subsurface ecologies. Alex Duff, University of Technology Sydney, Master of Landscape Architecture Thesis, 2021 (supervisor: Dr Andrew Toland).
[4] Infrastructure for subsurface ecologies. Alex Duff, University of Technology Sydney, Master of Landscape Architecture Thesis, 2021 (supervisor: Dr Andrew Toland).
Governing the Ground: Architecture v. the Rights of the Land 
Biological Diversity, Governing, land ownership, land rights, Rights of nature, Sustainable Development
Andrew Toland
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Until recently, nature was wholly outside the law.[1] At most, it was property of one sort or another – to be bought and sold, securitised and commodified, and especially, in the old-fashioned phrase of the English common law, “improved”. Other “laws” – of physics, chemistry and biology – are not of consequence in this realm of capital “L” Law,[2] exempted because of their exceptionalism. Humans are distinct from and superior to other animals, a situation the Canadian environmental lawyer and academic David R. Boyd describes as “at odds with reality … any biologist will tell you that humans are animals”.[3] Black’s Law Dictionary, the dominant legal lexicon in North America, is at pains to point out that the legal definition of animals “includes all living creatures not human”.[4] Similarly, architecture presented itself as standing apart from nature. “Architecture, unlike the other arts, does not find its patterns in nature”, claimed Gottfried Semper in 1834.[5] Or Louis Kahn in 1969: “What man makes, nature cannot make.”[6] In what is ultimately a form of the cosmology of the modern, law and architecture sit apart from and superior to nature. Design, like the economic activities to which law gives its support, is about subduing nature and turning it to productive ends. In this model, both are methods of human governance of the natural world. Indeed, for centuries, architecture was among the key pieces of evidence cited for human exceptionalism – buildings and cities, just as in Laugier’s original parable of the hut as the first example of architecture, allowed humans to transcend the state of nature.[7, 8] At times, this line of Western thought had deeply pernicious consequences for other peoples throughout the world, as the presence or absence of architecture, as well as agricultural cultivation, became one of the key legal determinants that permitted European colonisers to expropriate the lands of indigenous peoples.[9] Architecture was thus enfolded into the law’s methods for imposing governance over unfamiliar lands and peoples, just as it structured the dominance over nature. But what would it mean, for architecture no less than for the law, if – as one of the provocations suggested by the editors of this journal proposes – nature were to govern itself? Developments in legal theory over the past several decades, as well as a handful of legal cases that have received wide media coverage, now allow us to consider this novel possibility. This article considers the rise of this “rights of nature” jurisprudence from the perspective of architecture and landscape architecture, with particular attention paid to the emergence of the (literal) law of “the land”, as well as what this emerging way of thinking about the natural world and its life and systems might mean for the design of the very ground itself. 

Media reporting on high profile lawsuits or settlements where legal standing has been claimed (and in some cases recognised) for landscapes, ecosystems and rivers, to enable them to sue as plaintiffs, has drawn attention to the rights of nature and related claims as strategies to protect ecosystems or seek accountability for environmental damage and destruction. This has involved instances as diverse as the Whanganui River in New Zealand,[10] the Ganges and Yamuna Rivers and the Gangotri and Yamunotri glaciers in India,[11, 12] the Colorado River in the United States,[13] the Amazon rainforest in Colombia,[14] and the Paraná Delta wetlands in Argentina.[15] In addition, by the start of 2021, 178 legal provisions derived from rights of nature legal theory had been documented in seventeen countries across five continents, with an additional thirty-seven under consideration in ten more countries. Rights of nature has also found expression in a range of international legal instruments, such as the United Nations’ 2030 Agenda for Sustainable Development, the Convention on Biological Diversity, and in the jurisprudence of the Inter-American Court of Human Rights.[16] These approaches have their origins in the relatively recent fields of “earth jurisprudence” and “wild law”.[17] Many of their arguments derive from the disjunction that has emerged between the law and advances in the ecological sciences; a critique of legal doctrines trapped in the discrete and mechanistic model of the natural work developed during the scientific revolution of the sixteenth and seventeenth centuries when these foundational areas of the law were also fundamentally consolidated.[18] In contrast, earth jurisprudence and wild law seek to orient the law towards a scientific model of the world as made up of dynamic organic and material interrelationships, and away from anthropocentrism, subordination of the environment in the form of “property”, and economic notions of ever-expanding “growth”.[19] 

Figure 1 – Elements of the subterranean biome. Alex Duff, University of Technology Sydney, Master of Landscape Architecture Thesis, 2021 (supervisor: Dr Andrew Toland). 

Beyond this, the legal presumptions that give rise to the longstanding juridical status of nature also provide the basic conceptual structure within which the basic actions of modernity, including design, occurred. The basic systems of procurement of architecture, landscape architecture, and urban and landscape planning and design all fundamentally depend on the system of property; on who has legal control or dominion over land, and the right to “exploit” its resources (a much more neutral term in legal parlance, but one which, nonetheless, opens the door for acts with much more negative and damaging consequences). Whether issued by individuals, corporations or the state, any design commission granted to an architect or landscape architect requires the commissioner to have the right to “improve” (again, in the sense of the archaic language of the law) the land in the first place. Before embarking on a further consideration of what the rights of nature might mean for design disciplines concerned with built and natural environments, it is worth examining in some detail how the very legal conceptualisation of the ground itself also involved the basic activities of architecture and landscape design. 

From the sixteenth century onwards, in English common law, one of the fundamental precepts governing land (and who had the right to do what; on, under, and above the ground) was encapsulated in the Latin legal dictum, Cuius est solum, eius est usque ad colem et ad infernos: “Whoever’s is the soil, it is theirs all the way to Heaven and all the way to Hell.”[20] The earliest recorded judicial authority for this approach has its origins in a basic architectural dispute. Sometime around 1586, an English landowner somewhere in Oxfordshire constructed a house blocking the light and views his neighbour had enjoyed for some three to four decades. The neighbour sued. The record of the judgment in that lawsuit, Bury v Pope, is a scant 123 words long and can be quoted in full:  

“Case for stopping of his light.-It was agreed by all the justices, that if two men be owners of two parcels of land adjoining, and one of them doth build a house upon his land, and makes windows and lights looking into the other’s lands, and this house and the lights have continued by the space of thirty or forty years, yet the other may upon his own land and soil lawfully erect an house or other thing against the said lights and windows, and the other can have no action ; for it was his folly to build his house so near to the other’s land: and it was adjudged accordingly. 

Nota. Cujus est solum, ejus est summitas usque ad cœlum.”[21]

The final nine words echo down the centuries, certainly in the areas of the world touched by English common law, from mineral rights in Native American lands to mining leases in postcolonial Africa to tricky jurisdictional questions over carbon capture and storage. The careful reader will note that “et ad infernos” (“and to hell/the underworld”) does not appear in the original Latin maxim at the end of the report of the original judgment. And yet by the eighteenth and nineteenth centuries, the common law doctrine, which has variously been claimed to have its origins in Roman or Jewish Law, had come to be accepted as applying to rights both above and below an owner’s land. It is no coincidence that by this time claims and rights related to the extraction of mineral resources were of huge economic importance. In English common law, the parameters of land and land ownership, as originally conceived, emerged as spatially absolute – it could not conceive of more intricate frameworks of interests or custodianship in which different parties or, indeed, different beings might share in the rights and responsibilities for the use and care of a given territory.  

Figure 2 – Surface/subsurface reciprocities. Alex Duff, University of Technology Sydney, Master of Landscape Architecture Thesis, 2021 (supervisor: Dr Andrew Toland). 

A few decades later, this fundamental principal of the law of Land (Terra, as presented in its Latin formulation), was elaborated in telling detail by the great systematiser of early modern jurisprudence, the Elizabethan jurist Sir Edward Coke. Again, it is worth scrutinising how Coke first presented this legal approach to the land; in essence, it depends on a set of presumptions of human habitation within the material environment that we can also see establishing the modern foundations of designing, dwelling and designing the land in which that dwelling occurs (with land that can be built upon being accorded a special privilege): 

“Terra, in the legal signification comprehended any ground, soil, or earth whatsoever; as meadows, pastures, wood, moores, waters, marshes, furses and heath. Terra est Nomen generalissimum, et comprehendit omnes species terra; but properly terra dicitur a terendo, quia vomere teritur; and anciently it was written with a single r; and in that sense it includeth whatsoever may be plowed; and is all one with arvum ab arando. It legally includeth also all castles, houses, and other buildings: for castles, houses, &c. consist upon two things, viz. land or ground, as the foundation or structure therewith, so that in passing the land or ground, the structure or building thereupon passeth therewith. Land is anciently called Fleth; but land builded on is more worthy than other land, because it is for the habitation of man, and in that respect hath the precedency to be demanded in the first place in a Præcipe, as hereafter shall be said.”[22] 

It is habitation that conveys rights; that is the source of law and governance over land and the expropriation of its material resources: 

“And therefore this element of earth is preferred before the other elements: first and principally, because it is for the habitation and resting-place of man; for man cannot rest in any of the other elements, neither in the water, are, or fire. For as the heavens are the habitation of Almightie God, so the earth hath he appointed as the suburbs of heaven to be the habitation of man; Cœlum cœli domino, terram autum dedit filiis hominum. All the whole heavens are the Lord’s, the earth hath he given to the children of men. Besides, every thing, as it serveth more immediately or more meerly for the food and use of man (as it shall be said hereafter), hath the precedent dignity before any other. And this doth the earth, for out of the earth cometh man’s food, and bread that strengthens man’s heart, confirmat cor hominis, and wine that gladdeth the heart of man, and oyle that makes him a cheerful countenance; and therefore terra olim Ops mater dicta est, quia omnia hac opus habent ad vivendum. And the Divine agreeth herewith for he saith, Patrium tibi & nutricem, & matrem, & mensam, & domum posuit rerram Deus sed & sepulchre tibi hanc eandem dedir. Also, the waters that yeeld fish for the food and sustenance of man and are not by that name demandable in a Præcipe.”[23] 

The ownership of control of the surface of the land is then expanded into a fully three-dimensional envelope of property, governance and control: 

“… but the land whereupon the water floweth or standeth is demandable (as for example) viginti acr’ terræ aqua coopert’, and besides, for the earth doth furnish man with many other necessaries for his use, as it is replenished with hidden treasures; namely gold, silver, brasse, iron, tynne, leade, and other metals, and also with a great variety of precious stones, and many other things for profit, ornament, and pleasure. And lastly, the earth hath in law a great extent upwards, not only of water, as hath been said, but of ayre and all other things even up to the heaven; for cujus est solum ejus est usque ad coelum, as it is holden.”[24] 

Although the subsurface is not explicitly mentioned in the Latin dictum, it has always been the presumption that the rights of land extend down as well as upwards, which is made plain by Coke’s express discussion of mining (an increasingly important economic activity in both Elizabethan and Jacobean England) and the expanding global conquests of the European empires. 

Figure 3 – Sydney basin soil sampling. Alex Duff, University of Technology Sydney, Master of Landscape Architecture Thesis, 2021 (supervisor: Dr Andrew Toland). 

Less than a century later, the importance of subsuming any disorderly expressions of nature on landed property – a theory of landscape design that had been developing across the course of the seventeenth century – was famously crystallised in Joseph Addison’s influential essay on the landscape garden, “On the Pleasures of the Imagination”;[25] property and design fused in his dictum: “a Man might make a pretty Landskip of his own Possessions.”[26] Over subsequent centuries, and especially in the context of European colonialism, it became almost an imperative that land be improved by “art” in order to justify its expropriation and its incorporation into a totalising world economic system.[27] As Sir William Blackstone, Coke heir’s as juridical systems builder and the most influential legal systematiser from the end of the eighteenth century onwards, wrote: “The Earth, and all things herein, are the general property of mankind, exclusive of other beings, from the immediate gift of the creator.”[28] 

Blackstone himself was a great architectural enthusiast and, indeed, an architectural critic and draftsperson, author of An Abridgment of Architecture (1743) and Elements of Architecture (1746-7).[29] In classical architecture, Blackstone saw the highest expression of a system of universal laws that surpassed the disorderliness of the natural world. Here, his model was the science of mathematics, not the natural sciences; it was the former that gave architecture access to a plane of being beyond the worldly, the realm of Beauty and Nobility, “the flower and crown of all sciences mathematical”. Classical architecture provided Blackstone with his model for his efforts to renovate and remodel English common law, to rescue it from its fate, “like other venerable edifices of antiquity, which rash and unexperienced workmen have ventured to new-dress and refine, with all the rage of modern improvement … it’s [sic] symmetry … destroyed, it’s proportions distorted, and it’s majestic simplicity exchanged for specious embellishments and fantastic novelties”.[30] Just as the architect must work to restore symmetry, proportion, and majestic simplicity to a grand manor fallen into decay, “mankind [sic]” was duty-bound to elevate “his [sic]” property of the entire earth through the improvements of art and science. Blackstone’s distaste for “modern improvement” did not preclude him from writing elsewhere of the inherited law as “an old Gothic castle” that needed to be “but fitted up for a modern inhabitant … converted into rooms of convenience, … chearful [sic] and commodious”.[31] 

Figure 4 – Infrastructure for subsurface ecologies. Alex Duff, University of Technology Sydney, Master of Landscape Architecture Thesis, 2021 (supervisor: Dr Andrew Toland). 

The totalising thrust of Western property law as a law of land has resulted in more recent efforts by designers focused on the environment and ecology, unlike the theorists of earth jurisprudence and wild law, to find spaces outside of the law itself, rather than to attempt to find space within it. The landscape architect Gilles Clément has deliberately sought out land literally outside the jurisdiction and operations of the law and its various systems of governance and administration. His notion of le tiers paysage is about land:  

“… forgotten by the cartographer, neglected by politics, undefined spaces, devoid of function that are difficult to name; an ensemble … located on the margins. On the edge of the woods, along the roads and rivers, in the forgotten corners of the culture, in the places where machines do not go. It covers areas of modest size, scattered like the lost corners of a field; unitary and vast like peat bogs, moors and wastelands resulting from recent abandonment. 

There is no similarity of form between these fragments of landscape. They have only one thing in common: they all provide a refuge for diversity. Everywhere else, diversity is driven out. 

This justifies bringing them together under a single term. I propose ‘Third Landscape’ …”[32] 

The passage is striking, especially when we compare it to Coke, whose aim was to bring those very landscapes – “meadows, pastures, wood, moores, water, marshes, furses and heath” – within the remit of the law. For Clément, it is the very fact that the latter types of landscape, especially, have been so difficult to govern, to bring within law’s jurisdictional ambit, that makes them such rich sources of biodiversity – nature’s outlaw territories. It is these territories that ought to provide a model for designers (and his preferred model for the designer in question is not the architect or landscape architect, but the gardener, who “creates a landscape by following it over time, using horticultural and environmental maintenance techniques. … But above all, it is about life”).[33] 

Figure 5 – Infrastructure for subterranean biodiversity. Alex Duff, University of Technology Sydney, Master of Landscape Architecture Thesis, 2021 (supervisor: Dr Andrew Toland). 

But if nature itself has rights, if it is recognised as having agency and self-determination in the manner put forward by the earth jurisprudence and wild law movements, then designers may not need to – and, increasingly, cannot – escape into a third landscape. As other theorists have pointed out, nature is always part of the social. Beyond the well-known position of Bruno Latour in We Have Never Been Modern, other theorists have noted the ways in which “the entities that compose arrangements have a physiochemical composition and are, accordingly, part of the greater physiochemical stratum in which material entities are linked”.[34] In other words, society and culture have a “physicality”, and a large part of that physicality is defined by the bio- and physiochemical processes of “nature”. In this sense, even anthropogenic climate change is a kind of revenge of nature, whose processes have turned against us. In a more everyday sense, “The properties of wood, for instance, lay down sequences of actions that must be followed if trees are to be felled, axe handles produced, animals clubbed, houses built, and paper produced”.[35] 

There is no escaping our material realities and the dynamics they define. The question is how to enter into and think of ways to reconfigure those “sequences of actions” – in other words, how to design. Material properties are not absolutely deterministic. It is not just a matter of asking the brick, à la Louis Kahn.[36] Instead, the design possibilities that come from the rights of nature simply begin to open up the field for a set of political claims about the appropriate status and interrelationship between humans, societies and the non-human environment, by codifying those claims in a form that other models of organising human activities are forced to recognise. As in debates over the political, social, economic and cultural rights of humans, the language of rights is simply part of an ongoing political contestation over claims and obligations.[37] We might begin, for example, by using the very same premises as Coke, considering what design might mean in the realm of terra itself – “ground, soil, or earth whatsoever” – if that very ground also had self-determining rights, and could govern itself, irrespective of what our “designs” upon it might be. A recent piece in Nature Climate Change draws attention to the extent to which subterranean ecosystems have generally been overlooked in biodiversity and climate change mitigation agendas.[38] This zone, “likely the most widespread non-marine environment on Earth,” remains largely a terra incognita. In cities, the upper layers of the urban soil (the “A and B horizons”) are highly “disturbed” and often “depaupurated”, if not directly contaminated with anthropogenic chemicals and other wastes.[39] Various projects have drawn attention to the task of recovering urban and other post-anthropogenic soils.[40] But an equally important shift may simply be in opening up the legal definition of “land” and the cluster of rights and obligations that have been constructed around it. Instead of a conceptual tabula rasa simply to be built upon, if we instead came to recognise it as the lively subterranean biome it in fact is, and if that biome might be recognised as having rights and claims of its own, then design might be forced to take a very different turn. Even the most vacant of plots will come to seem not so vacant, after all. 


[1] Admittedly, this assertion is phrased in a universalist register. The reality is that what is being referred to is Western, and, latterly, international, legal constructs, that have provided the dominant model for legal thinking across almost all jurisdictions that form the basis for land law in the early twenty-first century. 

[2] C. Kauffman and P. Martin, The Politics of Rights of Nature: Strategies for Building a More Sustainable Future (Cambridge, MA: The MIT Press, 2021), 4. 

[3] D. Boyd, The Rights of Nature: A Legal Revolution That Could Save the World, (Toronto: ECW Press, 2017), xxv. 

[4] Ibid, xxv. 

[5] Quoted in A. Forty, Words and Buildings: A Vocabulary of Modern Architecture (London: Thames & Hudson, 2000), 220. 

[6] Ibid, 220. 

[7] O. Verkaaik, “Creativity and Controversy in a New Anthropology of Buildings”, Ethnography 17(1) (2015), 135–143. Recent work in anthropology has explicitly challenged this premise, as in the work of Tim Ingold discussed by Verkaaik: T. Ingold, “Building, Dwelling, Living: How Animals and People Make Themselves at Home in the World”, 172–188. In Tim Ingold, ed., The Perception of the Environment: Essays on Livelihood, Dwelling and Skill (London: Routledge, 2000). 

[8] M. Laugier, An Essay on Architecture, trans. Wolfgang Herrmann and Anni Herrmann (Los Angeles: Hennessey & Ingalls, 1977). 

[9] S. Banner, “Why Terra Nullius? Anthropology and Property Law in Early Australia”, Law and History Review, 23(1) (2005), 95–132 at 107. 

[10] Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 (NZ). 

[11] Mohd Salim v State of Uttarakhand & others, WPPIL 126/2014 (High Court of Uttarakhand), 2017. 

[12] Lalit Miglani v State of Uttarakhand & others, WPPIL 140/2015 (High Court of Uttarakhand), 2017. 

[13] Colorado River Ecosystem v State of Colorado, 1:17-cv-02316 (U.S. Colorado Federal Court), 2017. 

[14] Demanda Generaciones Futuras v Minambiente, STC4360-2018 (Supreme Court of Colombia), 2018. 

[15] Asociación Civil por la Justicia Ambiental v. Province of Entre Ríos, et al., (Supreme Court of Argentina), 2020. 

[16] C. Kauffman and P. Martin, The Politics of Rights of Nature: Strategies for Building a More Sustainable Future (Cambridge, MA: The MIT Press, 2021), 2. 

[17] As represented, especially, in the work of T. Berry, “Rights of Earth: We Need a New Legal Framework Which Recognises the Rights of All Living Beings,” 227–229. P. Burdon, ed., Exploring Wild Law: The Philosophy of Earth Jurisprudence (Kent Town, South Australia: Wakefield Press, 2011); C. Cullinan, Wild Law: A Manifesto for Earth Justice, 2nd ed. (Totnes, UK: Green Press, 2011); and P. Burdon, Earth Jurisprudence: Private Property and the Environment (London: Routledge, 2014). 

[18] C. Kauffman and P. Martin, The Politics of Rights of Nature: Strategies for Building a More Sustainable Future (Cambridge, MA: The MIT Press, 2021), 4–5. 

[19] D. Boyd, The Rights of Nature: A Legal Revolution That Could Save the World, (Toronto: ECW Press, 2017), xxii–xxiii. 

[20] Jackson Municipal Airport Authority v. Evans, 191 So. 2d 126, 128 (Miss. 1966). 

[21] Bury v Pope (1586) Cro Eliz 118; 78 ER 375. 

[22] Coke on Littleton (1628–1644), 4a. 

[23] Ibid. 

[24] Ibid. 

[25] J. Addison, Spectator, III, Nos 411–421 (21 June–3 July 1712), 535. 

[26] Ibid. 

[27] For example, the first landscape designer in Australia, Thomas Shepherd, advocated for the use of English “landscape gardening” principles to be used to improve Crown land in order to attract foreign capital investment: see T. Shepherd, Lectures on Landscape Gardening in Australia (Sydney: William M’Garvie, 1836). 

[28] W. Blackstone, Commentaries on the Laws of England in Four Books, Book III (Philadelphia: J.B. Lippincott Company, 1893; orig pub 1765), 2. 

[29] C. Matthews, “Architecture and Polite Culture in Eighteenth-Century England: Blackstone’s Architectural Manuscripts” (unpublished dissertation, School of History and Politics, University of Adelaide, 2007); W. Prest, “Blackstone as Architect: Constructing the Commentaries,” Yale Journal of Law & the Humanities, 15(1) (2003), 103–133. 

[30] W. Blackstone, Commentaries on the Laws of England in Four Books, Book I (Philadelphia: J.B. Lippincott Company, 1893; orig pub 1765), 8. 

[31] Ibid, Book III, 268. 

[32] G. Clément, Manifeste du tiers paysage (Paris: Éditions du commun, 2016), 14. 

[33] G. Clément, Gardens, Landscape and Nature’s Genius, trans Elzélina Van Melle (Risskov, Denmark: IKAROS Press, 2020), 19–20. 

[34] T. Schatzki, “Nature and Technology in History,” History and Theory 42(4) (2003), 88–89. 

[35] Ibid, 89. 

[36] Quoted in S. Turkle, Simulation and its Discontents (Cambridge, MA: The MIT Press, 2009), 86 n 4. 

[37] Marie-Bénédicte Dembour, “Human Rights Talk and Anthropological Ambivalence: The Particular Contexts of Universal Claims,” 17–32. Olivia Harris, ed., Inside and Outside the Law: Anthropological Studies of Authority and Ambiguity (London: Routledge, 1996). 

[38] D. Sánchez-Fernández, D. Galassi, J. Wynne, P. Cardoso and S. Mammola, “Don’t Forget Subterranean Ecosystems in Climate Change Agendas,” Nature Climate Change 11 (2021), 458–459. 

[39] R. Forman, Urban Ecology: Science of Cities (Cambridge, UK: Cambridge University Press, 2014), 91–93. 

[40] See, for example, the projects of the landscape architect Julie Bargmann and her D.I.R.T. studio. 

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