Legal life writing and the field of environmental politics: Experiments in law, history and sociology

Susan Bartie

Introduction

‘Environmental law’ is a term that dates from the late 1960s in the United States.¹ It was adopted in Australia in the 1970s, with some Australian lawyers slowly describing themselves as ‘environmental lawyers’ after that time.² These descriptors, ‘environmental law’ (referring to a body of law) and ‘environmental lawyer’ (referring to a lawyer’s professional identify and expertise) were introduced into a discipline that, for over a century, had drawn its legitimacy and importance from its capacity to organise rules and principles into so-called rational and logical analytical categories with distinctive legal meanings. Previously the lawyers organised into these new categories were mostly described as planning, local government or administrative lawyers—labels that bore no obvious correlation to political or social movements.

The political and social significance of these organisational projects has often been buried or simply ignored. History has served as an important interrogational tool, serving to penetrate the mythical, self-evident presentation of these categories. Critical lines of inquiry for legal historians include examining ‘how law itself is presented as dematerialised … and how legal categories are used to construct ontological boundaries’.³ As Chloe Kennedy observes, ‘a lot turns on how law creates and maintains its classificatory distinctions, and different schemes reflect distinct theoretical and ethical underpinnings’.⁴

This article explains how legal life writing can create new sites of interdisciplinary creativity to challenge the seemingly innocuous nature of legal categories. It does so by drawing on existing studies and by introducing some of the central design principles of a new life writing project of around 70 Australian lawyers. These lawyers contributed to the professional category ‘environmental lawyer’ and legal category ‘environmental law’ by engaging in professional work and initiatives intended to improve environmental outcomes. This new project, among other things, seeks to understand how Australian lawyers from the 1970s onwards received and gave new meanings to the concept of the environment—a concept that had gained a degree of solidity within scientific as well as national and international political circles.⁵ It also sheds light on the historical and social meaning of environmental law as a legal category. I explain how its meaning can be approached through a combination of sociological, historical and legal sensibilities, packaged within a life writing vessel modelled on the earlier studies. Such a life writing project promises to do what history often does best: excavate enduring assumptions and counter deterministic accounts of law.

The categories ‘environmental law’ and ‘environmental lawyer’ now present as an entrenched part of the legal landscape. For example, international organisations such as the United Nations (UN) have generated initiatives that place great faith in the ability of law, upheld and maintained by lawyers, to protect the environment.⁶ At the same time, few have studied and evaluated the historical national contributions of environmental lawyers to environmental politics to understand what this increased reliance on law and lawyers might really mean.⁷ Understanding the social and historical meaning of the categories that have elevated the status of laws typically used in efforts to protect the environment is an important first step towards analysing the track record of environmental law.

This article begins by introducing two existing seminal studies in law that help to establish the case that life writing can be central to understanding, and excavating the assumptions within, several of the discipline’s foundational concepts. These studies show that the lives and careers of lawyers, particularly those of legal academics, can shed light on the political arrangements forged through the creation and sustenance of legal categories. The endurance of these categories has established hierarchies of power within the discipline and broader legal profession that persisted throughout the nineteenth century and continue today. While the studies answer very similar overarching questions, their theoretical frames are different. The first, by David Sugarman,⁸ sits within the path set by historian E. P. Thompson,⁹ while the other, by Anthea Roberts,¹⁰ draws principally from sociology, adopting aspects of Pierre Bourdieu’s field theory.¹¹

Together these studies illustrate how life writing, which I define expansively as work that draws from the biographical data of humans or objects,¹² can excite the interests of scholars working with different methodological and theoretical tools. Their efforts suggest that through life writing a discipline such as law, which unites scholars around a subject (‘the law’), rather than methodological and theoretical commitments (such as sociology or archaeology), can foster exciting interdisciplinary experiments and collaborations. Put simply, these examples demonstrate that rather than being a peripheral exercise of interest largely to historically inclined lawyers, legal life writing ought to be treated as a vital component of the discipline—one that helps to explain the broader relevance of law and, in particular, legal categories.

The theme of this special issue, Writing Tasmanian Lives, invites consideration of how studying a legal category through a life writing project might provide lessons or identify new lines of inquiry for those writing about the lives of Tasmanians. One might expect that studying the legal category ‘environmental law’ through the lives of environmental lawyers would lead to the location of one of the central environmental battle grounds of twentieth century. Yet, while some of the most high-profile environmental campaigns and harms of the twentieth century occurred in Tasmania, most notably the Franklin River campaign and the submerging of Lake Pedder, the leading lawyers who assisted the protestors and their adversaries were from elsewhere. Accounts of Australia’s pioneering environmental lawyers have often concentrated on Sydney lawyers, and litigation in Australia’s highest courts has often involved barristers chosen for their technical expertise rather than environmentalist commitments. Some notable exceptions in Tasmania include Gerry Bates (an academic at the University of Tasmania and then Greens politician), Roland Browne (a lawyer who has represented protestors and others involved in environmental disputes and who the first president of the Board of the Environmental Defender’s Office in Tasmania [EDO Tas]), Jess Feehely (a principal lawyer at EDO Tas for almost 15 years) and Claire Bookless (a principal lawyer at EDO Tas, who then became managing lawyer of the new national EDO). Does this mean that the study of environmental law through the lens of legal lives will separate the history of the category from what occurred in Tasmania?

In the second part of this article, I explain how framing a study of the category ‘environmental law’ as a field study that relies heavily on lawyer biographies not only explains law through individual agents and their relationship with broader structures but also connects law with place.

First, I explain how existing studies of environmental law, which draw from biography, suggest that the impetus for the category stems from two different political motivations. In England, a straightforward connection has been drawn between the environmental movement and the creation of environmental law and environmental lawyers. A US account draws a similar connection but suggests that the prevailing impulse of lawyers drawn to public interest lawyering was to put into practice ideas formed at elite law schools—namely, that the administrative state had become an unruly beast that needed to be kept in check. What is interesting about both of these accounts is that they concentrate on the ideas that motivated lawyers to contribute to the categories of environmental law and environmental lawyer, rather than the relationships and emotions. I make an argument that a lawyer’s relationship with protestors and the emotions they felt about particular places ought to be explored in future accounts. I also suggest that it is important to identify legal categories as distinct entities capable of creating and holding considerable symbolic power.

This brings me to the final point of this article: that thinking about a legal biography project through the lens of field theory has the potential to identify and elevate important lines of inquiry that may be overlooked in life writing projects lacking a sociological foundation. I explain that the exercises of conceptualising a field, identifying central actors and thinking about their existential motivations can generate new and important knowledge about law.¹³ Field theory’s emphasis on relationships promises to bring key Tasmanian protestors into understandings of how the categories of environmental law and environmental lawyering was sustained over time. It can also bring the Tasmanian landscape, as a distinctive actor, into accounts of law. The creation of the EDO in Tasmania and the movement of leading environmental law academics to the law school of the University of Tasmania raises interesting questions about the importance of place to both of these groups of lawyers.

Studying legal categories through life writing promises to unsettle existing understandings of law and invite experiments with law, history and sociological theories. It can help to illuminate how lawyers’ meanings and identities have, among other things, shaped law. In short, the potential of these studies to expand the horizons of the discipline of law, as well as other disciplines, seems vast.

Legal life writing and legal categories

Two existing studies within law, one old and one new, make a strong case that the professional lives of legal academics and lawyers are crucial to any understanding of the political and personal dimensions of law, dimensions that have often been overlooked within the discipline. While both studies have received considerable attention and acclaim, the key role of career history and biographical data in generating these findings has received less attention. As mentioned earlier, the two studies take different forms. Sugarman, a well-known and highly regarded English legal historian, adopts methods from intellectual history and biography and presents his findings in an engaging narrative.¹⁴ Anthea Roberts, in contrast, writes as a socio-legal scholar, drawing together aggregates and presenting graphs and tables to bring to light common trends among legal academics at a particular point in time.¹⁵ While Roberts draws from biographical details, such as where legal academics studied, worked and published, she explains that her work concentrates on a ‘snapshot in time’;¹⁶ therefore, she does not treat her project as primarily a work of history. Despite these differences, the two studies’ heavy reliance on biographical data make them both works of legal life writing.

Both studies also respond to the same overarching question: to what extent has law been forged by relationships between lawyers and academics, and the political and personal motivations they held for themselves, the discipline and law? And they make similar contributions to knowledge, facilitating greater scrutiny of arrangements and assumptions that have held law, and those who study and practise it, captive to certain power relationships. They each challenge the persistent myth that law is self-evident, rational, universal, valueless and beyond challenge and revision.

Sugarman: Biographies and legal myths

In 1986, Sugarman published a seminal history charting the intellectual origins of the modern discipline of English law: ‘Legal Theory, the Common Law Mind and the Making of the Textbook Tradition.’¹⁷ In it Sugarman closely examined the professional lives of the English jurists who founded the modern discipline of law to understand how and why the early common law analytical categories—those that shaped how the law is organised throughout the common law world—emerged. His investigation revealed that these early jurists believed that to gain a firm hold within the legal establishment they needed to carve out a distinctive role for themselves, what Sugarman describes as a ‘narrow ledge’. Sitting on this delicate ledge meant upholding, and not threatening, the supreme authority of the judiciary and not trespassing onto the fact-finding role of the profession.¹⁸

This ‘narrow ledge’ involved jurists searching within the common law for general universal principles, grouping these together under subject headings and disseminating this law through textbooks created under those headings.¹⁹ At least outwardly, their diligence in reading cases and statutes, and engaging in these organising and cataloguing exercises, became their chief virtue and identifier. While their position at a university granted them the freedom to examine and critique bodies of laws and suggest reforms based on research and intellectual reflection, they instead sought to present themselves as research assistants to judges.²⁰ Of course, as generations of scholars and theorists have argued and shown, untangling the common law required jurists to move beyond common logic.²¹ As textbooks presented the law in a more accessible form than the many law reports containing an edited transcript of judgments, the authority and influence of textbooks, and through them textbook writers, in many ways equalled that of the courts.

In this way, the presentation and rhetoric of the early jurists hid their contribution to law and the authority of their work. It created an enduring legal myth.²² It also, according to Sugarman, buried the co-conspiratorial role they held with the judiciary. He suggests that the common law textbook tradition was founded on a commitment on the part of both the judiciary and the jurists to uphold and perpetuate the ‘common law frame of mind’.²³ This is the assumption that, although the law is made up of a myriad of provisions and common law pronouncements, at the heart of law is a rational, ‘internally coherent and unified body of rules’²⁴ that stem from general, universal principles. This coherence and rationality provide the law with legitimacy and is what, so the myth goes, protects the liberty of citizens against the actions of both the government and others.

The professional lives of the early jurists provided the key for unlocking these central personal and professional dimensions of law and provided strong ammunition for challenging the typical ways of conceptualising law. Put simply, Sugarman made a powerful case for the potential of life writing to create new understandings of law that cast doubt on dominant ways of thinking and studying law.

Sugarman’s interrogation of the textbook tradition sat firmly within the critical legal studies movement. It was different from many other English legal histories of the time in that it concentrated on networks of human actors, rather than the history of abstract rules, principles and ideas.²⁵ It treated law as a social construct and sought to understand who constructed the law, to what end and with what consequences. Sugarman suggested that the energies and ideas associated with one of the central building blocks of law had set it on a path that made it immune from criticism and placed academics in an intellectual prison, with research projects seeking to understand law outside of the common law frame of mind continually treated as alternatives rather than the mainstay of the discipline.

While Sugarman’s essay was well received within the socio-legal community and attracted many citations,²⁶ in the decade following its publication few scholars were persuaded to adopt an academic agenda grounded in life writing. Within law, life writing was often treated as synonymous with individual biography, and usually the biography of judges. And, even then, it was considered peripheral to the main enterprise of legal scholarship.²⁷ Today there are, nonetheless, signs of increasing interest in legal life writing, with a growing number of socio-legal scholars and historians undertaking projects that incorporate biographical data, studying law from both above and below.²⁸ In Australia, Jacqueline Fox has made an important contribution to this body of work. Her history of John Lewes Pedder, chief justice of Van Diemen’s Land from 1824 to 1854, illustrates how a penetrating and deeply contextual exploration of a judge’s life can not only bring new understandings of the colonial world, but also challenge long held perceptions about the form and application of criminal laws.²⁹

Roberts: Biographies and international law

An interesting recent example, which explores the composition of a legal category broadly understood to be highly political in nature, is Anthea Roberts’s book-length study of international law.³⁰ In it she draws on biographical data of international law legal academics, as she believes they played a crucial role in constructing the field. As with the traditional common law categories, legal scholars have sought to imbue international law with legitimacy by presenting it as an abstract, objective and universal body of law. By contrast, Roberts asks: ‘Is International Law International?’ She suggests that ‘what counts as international law depends in part on how the actors concerned construct their understandings of the field and pass them on to the next generation’.³¹ Her work signalled a clear departure from earlier preoccupations of international law scholars who often asked whether international law should be classified as law or politics (i.e. ‘is international law really law’?³²) and who had taken for granted the meaning of ‘international’ in this context.³³

Roberts adopts Bourdieu’s field theory, conceptualising international law as ‘a social sphere made up of objective relations between different agents who interact and compete’.³⁴ Her adoption of Bourdieu signals that her study is about the power relations created through a legal category—that is, international law. It also indicates that she considers that the field was created by human actors who shaped, and were shaped by, their intellectual and cultural environment, suggesting that she is adopting Bourdieu’s theories on agency and structure.³⁵ Roberts applies Bourdieu’s concepts of field, habitus, doxa and capital to the central professional activities and career biographies of international law scholars from the five permanent members of the UN Security Council (China, France, Russia, the United Kingdom and the United States).

For example, Roberts studied the textbooks and professional biographies of international law scholars, grouping them within their national boundaries, to understand both the habitus of international law scholars and what kinds of social and cultural capital are rewarded. Habitus, a central concept of field theory, describes how individuals derive understandings or adopt ways of thinking about how to behave within a part of society through their interaction with that society, both taking from and contributing to this habitus.³⁶ She explains how these rewards create differences between the countries that mean that some academies are given greater prominence and contribute more to the transnational field of international law than others. Her study of national textbooks provides an indication of the doxa—that is, what legal scholars in each country treat as self-evident distinctions about what counts as international law.³⁷ Through this framework she identifies ‘some of the nationalizing, denationalizing and westernizing influences that reflect and reinforce the divisible [as opposed to universal and united] college of international lawyers’.³⁸

Roberts builds on Sugarman’s thesis, illustrating how, over time, lawyers and legal scholars have clung to a mindset in which the legitimacy of law is tied to its coherence and rationality, both of which come from its abstract universal properties. As with Sugarman, she challenges this mindset by introducing the personal and constructivist elements of the legal category under study. As her thesis examines the 2010s, rather than the late nineteenth and early twentieth century, her study is about academics working within established legal academies that have, over many decades (and, in some instances, centuries) created distinctive habitus, doxa and markers of capital. Unlike Sugarman’s categories, the existing forms of international law are in part the product of modern legal academies. Roberts shows that these modern academies have adopted a range of internal customs and cultural practices, rewarding different forms of capital, that either strengthen or weaken the capacity of international law scholars, and the form and content of international law within particular countries, to gain a transnational status.

Roberts’s work is important therefore in demonstrating how a legal category can be understood through biographical data, analysed as part of a large systematic study and framed by a sociological theory. Her conclusion that while ‘international law aspires to be a universal field … [it] is also, and inevitably, a deeply human product’,³⁹ points to the importance she places on the individual agency of legal scholars and the need to draw from the professional biographies of her subjects to understand international law.

Lawyers and environmental legal categories

In the remainder of this article I explain how the intellectual foundations set by Sugarman and Roberts may be extended in an investigation of the way that environmental lawyers have contributed to the field of environmental politics, in particular by creating and giving meaning to legal categories. While the body of environmental law scholarship in Australia has grown and diversified considerably since its birth in the 1970s, few have considered how the categories of environmental law or environmental lawyering have been socially and politically constructed, or considered the relationship between academic and practising law. The recent formation of the environmental law categories (at least when compared with Sugarman’s older categories and even when compared to Roberts’s international law), suggests that the meanings attached to them can tell us something about the persistence or erosion of the common law mindset and whether law and lawyers, both practising and academic, have shown greater willingness to acknowledge the political dimensions of their work. For example, how have these types of attitudes shaped law’s ability to support environmental protection goals? It is hoped that by following within the intellectual tradition of Sugarman and Roberts, such a study will strengthen the case for legal life writing as a body of work that can speak to the central concerns of what has traditionally been an analytical and conservative discipline.

During the 50 years of environmental lawyering in Australia, there has been a core and growing group of lawyers whose activities have helped construct the legal category known as environmental law and who have created a new category of legal expert: the environmental lawyer.⁴⁰ While they are not the only people to have contributed to environmental law, with public servants, activists, scientists, corporate actors and others also contributing to the shape of the category, their expertise and growing prominence within the legal profession suggests that they are worthy of greater investigation.

Environmental lawyers publicly critiqued the economic policies of successive state and federal administrations and corporations and translated these criticisms into legal forms. They urged courts to shed narrow legalistic tendencies, embrace dynamic reasoning and recognise new interests across diverse fields of established law.⁴¹ They created environmental law courses in law schools across the country, with the first initiative emerging in the late 1970s within Australia’s most radical law school: Macquarie.⁴² They created textbooks, journals and other scholarship devoted to the topic of environmental law.⁴³ They founded their own associations and public interest law firms with the mandate of creating novel legal strategies to protect a non-human actor previously lacking legal rights: the environment.⁴⁴ Their successors became stewards of these new organisations and were also appointed judges in planning and environment courts and tribunals, handing down rulings that recognised environmental interests to be equal, and even superior, to economic and other social concerns, including employment opportunities and native title interests in land.⁴⁵

To understand their activities, it is necessary to gather and create a body of experiential, intellectual, biographical and emotional data, and to build from these data new theories about the contributions of Australian lawyers, and Australian law, to environmental politics. Sugarman and Roberts provide strong starting points, identifying important lines of inquiry and a conceptual framework for understanding the contributions of lawyers to politics. In the remaining parts of this article, I explain the key lessons I take from their studies and how I propose to apply them to a life writing project of environmental lawyers. The project consists of a prosopography of the key lawyers, both academic and practising, who established public interest law firms, environmental law professional associations, were involved in significant environmental law reform initiatives, devised some of the central litigious strategies, created large bodies of environmental law scholarship, and sat on environmental (or environmental related) courts and tribunals. It also consists of a series of individual biographies of lawyers who played a crucial role in bringing lawyers together to engage in these activities.

Environmental lawyers and the common law mindset

Environmental law provides an interesting new case study because it emerged in the 1970s in Australia—a time when Australia had established a textbook tradition devoted to Australian law⁴⁶ and also a time of increasing critical ferment that challenged the liberal foundations of Australian law embodied in most of those textbooks.⁴⁷ Following Sugarman’s lead and considering how lawyers and scholars contributed to the making of the category of environmental law involves examining the relationship between the early lawyers and this political foundation.

While Sugarman’s and Roberts’s studies demonstrate that all legal categories are based on a normative foundation, for environmental law, that dimension was both clearly on display and, to a largely conservative legal profession, this served as a provocation. The proximity with the growth of the local and global environmental movements would suggest that lawyers adopted the term ‘environmental’ intending it to be something more than a bland descriptor of a part of the legal world. Rather, the timing suggests that it was a term deliberately transplanted from the growing movements. A recent memoir by English environmental lawyer and academic Richard Macrory provides some useful examples of what some of the key lawyers were thinking at this time.⁴⁸ Macrory was at the forefront of developments in law in England, as a practising lawyer working for not-for-profit organisations, as a legal academic creating environmental law programs and, more generally, as an organising force.

In his memoir, Macrory draws a clear link between the growth of the environmental movement and the coming together of lawyers under the banner of ‘environmental law’. For example, he explains that in 1972:

the Law Society Gazette had published a letter from a solicitor, Edward Moeran, pointing to the vital role that lawyers could play in helping to deal with the potential environmental catastrophes facing the world—‘Should we not form a group of interested and dedicated lawyers now, whilst there may yet be time to make our own contributions to this crisis of humanity?’⁴⁹

Macrory points to how changes to the names of law journals—‘in 1973, the Journal of Planning Law changed its name to the Journal of Planning and Environmental Law⁵⁰’—followed on the heels of:

the emergence of modern environmentalism at the highest international level with the UN Stockholm Conference on the Human Environment and, within the United Kingdom, the establishment of the Department of the Environment and the setting up of the Royal Commission on Environmental Pollution.⁵¹

He explains how the terms ‘environmental law’ and ‘environmental lawyer’ were applied to the creation of lawyer associations and groups designed to bring together lawyers working in the field.⁵² In this sense, the term presented as more of a legal slogan, organising similarly politically minded legal scholars together, than an analytical category.

Accounts of the birth of environmental law in the United States are a little different. A study by US environmental historian Paul Sabin illustrates how the work of environmental lawyers in shaping the categories of environmental law can be motivated by, and can communicate, political messages other than those associated with environmental protection and the environmental movement.⁵³ His work also demonstrates that lawyers’ biographies serve as important explanatory factors. Sabin suggests that lawyers working within public interest environmental law firms in the United States were united not by grave concerns about, or affinities with, the environment, but by political ideals they had formed during their education at elite law schools.⁵⁴ He explains:

Public interest environmental lawyers spoke broadly about ‘curbing an industrial civilization’s abuse of nature’, and they criticized the economic growth strategies, and the government, labor, and business partnerships, that characterized the New Deal order. However, in both practice and in theory, the public interest lawyers largely worked to improve the existing political and economic system, not to overturn or radically alter it. John Adams, NRDC’s founding executive director, called this approach ‘responsible militancy’. Their legal strategies were fundamentally conservative in method. Litigation offered a practical alternative to urban riots and student protests. The public interest lawyers sought to represent the ‘unrepresented’, but they also were elitists who highly valued professionalism and technical expertise. Personal alienation from soul-deadening corporate law helped spur young lawyers to create new legal organizations that would allow them to pursue a social mission while practicing law. They might not be able to stop the war in Vietnam, but they could use their professional skills to fight other perceived injustices, including environmental despoliation.⁵⁵

While previous wisdom suggested that the impetus for these law firms was the enactment of federal environmental legislation, Sabin’s study suggests that their emergence was a product of these ideals, which maintained and upheld traditional faith in the judiciary. In line with some of the leading progressive literature at the time, which was circulating in elite law schools, they believed that government officials could no longer be trusted to serve the public interest and that they ought to be held to account in the courts.⁵⁶ The new law firms served as vehicles for a new political ideology, separate from liberalism and the free market, being ‘an informed, active citizenry, represented by professional experts, who would ensure that government agencies pursued the true public interest’.⁵⁷

In this example, the lawyers’ contribution to environmental politics was to spread the message that lawyers and the courts, in partnership, and in the place of other political processes by governments and movement actors, could best guard against environmental harms. In this way, Sabin suggests that, despite the very different times and movement orientations, environmental lawyers in the United States shared the motivations of early jurists and judges to elevate faith in courts. However, Sabin’s lawyers’ faith in the courts was different in that, rather than protecting individual liberties through seemingly objective principles, the courts became guardians of the extremely nebulous notion of the public interest.

Sabin’s study, with its emphasis on lawyers and law firms, rather than merely litigation, demonstrates how the early US lawyers who united under the banner of environmental law brought about social and political change. They shaped public consciousness about what environmental law was and what it might achieve. Whether Sabin’s lessons can be transplanted to Australia is complicated by the patchy track record of environmental litigation in Australia in the 1970s and 1980s. Even when successful, litigation furthering the goals of the environmental movement often resulted in companies and government taking subsequent action to get around the court’s decisions.⁵⁸

What is interesting about Sabin’s account is that it concentrates on how lawyers were motivated by an idea brought to them by their law professors and how this idea was translated into the category of environmental law. Macrory’s account, in contrast, speaks more strongly and directly about how the existence of environmental harms motivated some lawyers to join forces and pioneer the category. While both accounts view law through a biographical lens (for Macrory it is largely autobiographical) and provide cogent historical accounts, what seems to be missing is an explanation of emotions and relationships.

In contrast, my studies suggest that emotions and relationships served as crucial explanatory factors for the emergence and sustenance of the categories of ‘environmental law’ and ‘environmental lawyer’. My preliminary studies suggest that these emotions and relationships serve as crucial explanatory factors. For example, the lawyers who encouraged Australia’s federal government to prevent the Tasmanian government from continuing with their plans to dam the Franklin River⁵⁹ spoke to key Tasmanian protestors (most notably, Bob Brown) and expressed their strong concern about damage to the natural environment. These types of engagements with members of the environmental movement and affinities with the natural environment seem crucial to any explanation of how environmental law and environmental lawyering has been sustained.

Macrory’s account of environmental lawyering in England suggests that there was something special about the creation of ‘environmental law’ as a legal category. He speaks of the reluctance of some lawyers to adopt this term, preferring terms such as planning law or local government law that brought greater status, perhaps because they avoided using a term such as ‘environmental’, which provided a normative element.⁶⁰ In other words, Macrory’s thesis gives weight to the idea that the mere creation of a legal category named ‘environmental law’ was both contested and important. To my mind, it raises questions about the symbolic power⁶¹ this term had. By this I mean that it had the ‘authority to shape or even determine the meaning of reality’.⁶² In the context of landmark litigation, particularly litigation pursued to secure civil rights, socio-legal scholars have spoken of how, even when successful, this litigation has not achieved its central aims; nonetheless, the court’s decision may help ‘destabilize political stalemates’,⁶³ galvanise lawyers and activists to raise awareness of causes⁶⁴ and give causes greater legitimacy through the communication of powerful legal norms.⁶⁵ Courts and judges have always been one of the most visible and most studied aspects of law. However, as Sugarman and Roberts explain, the creation of legal categories through a range of lawyerly activity can bring about just as significant changes to the political and legal order.

In the following part I suggest that field theory is an apt tool for forging interesting collaborations between law, life writing and sociology. Recent versions of field theory have the potential to prioritise inquiries about the relationships between lawyers and movements, and lawyers and their emotions towards the environment.

Environmental lawyers and field studies

In addition to reinforcing some of the central messages of Sugarman’s study, Roberts’s monograph is an interesting example of how a field theory project, which draws heavily from biography, might contribute to understandings of law. Applying the framework of field theory to a study of the lives of environmental lawyers raises some of the same, as well as different, issues and challenges to those encountered by Roberts.⁶⁶ In this part, I explain some of the challenges associated with defining a field through which to study environmental lawyers. I also explain the importance of problematising the definition of environmental lawyer. And, finally, I suggest that the recent turn in field theory towards the existential helps to better capture the emotions towards places and relationships among actors that have underpinned the categories of ‘environmental law’ and ‘environmental lawyer.’

The field

One of the most important first steps when conducting a field study is to identify the field under study. It can also be one of the hardest. As sociologists Neil Fligstein and Douglas McAdam point out in their reworking of Bourdieu’s field theory:

One of the trickiest challenges for anyone interested in studying a specific field is defining with some degree of conceptual and empirical precision what the contours of that strategic action field are. In some cases, it is easy. We have said that all formal organisations can be simultaneously analysed as fields. There the boundaries of the field are perfectly clear. It is also reasonably easy to characterize and develop a viable operational definition of a mature industry, conceived as a strategic action field. Many other fields, however, resist easy characterisation. Instead, analysts must carefully fashion a conception of the field based on deep knowledge of the case in question.⁶⁷

Providing an example of a field of study that resists easy characterisation, Fligstein and McAdam offer their decision to define one of their fields as ‘racial politics 1877–1932’ and defend why they chose that field over other possibilities, such as ‘white supremacy’ and ‘Jim Crow’.⁶⁸

Defining a field for environmental lawyers falls at the more difficult end of the spectrum. There are various options, including using existing labels and defining the field as either that of environmental law or environmental lawyers, or defining it as one of environmental legal protection or the environmental movement. My preference is to define it as ‘the field of environmental politics from 1970 to 2020’. This field makes clear the project’s aim of understanding whether and how lawyers contributed to the broader political stage. The starting year, 1970, is chosen because the descriptors that became the legal categories of ‘environmental law’ and ‘environmental lawyer’ followed on from the beginnings of the national environmental movement in Australia in the late 1960s. While there were clearly environmental campaigns and efforts prior to this time,⁶⁹ as well as laws that concerned the environment,⁷⁰ it was at this point that Australia fell in line with other Western nations and joined what quickly became a large global movement, and a series of smaller movements, that, in aggregate, signalled a growing prioritisation of the environmental cause within Australian politics.

The time period—five decades—means that the study can explore the significant changes within environmental lawyering, including the more recent concentration on climate action that has brought about numerous legal innovations, including changes to the organisational practices of law firms.

A further advantage of this definition is that it allows for scrutiny of the new legal categories of environmental law and environmental lawyer without the risk that they will be confused with the field itself. If the field was defined as ‘environmental lawyering’ or ‘environmental law’ or ‘environmental academic law’ then considering the symbolic power of these categories and studying the field itself may result in conceptual confusion. Instead, the legal categories can be considered as possible sites of symbolic power in the way described earlier—that is, as tools that elevated the cause of the environmental movement within the fields of practising and academic law, creating a new legal contribution to environmental politics.

In choosing to situate lawyers within a broader political field, and, in particular, a broader environmental field, I am following in the footsteps of sociologists Hannah Hughes and Mathew Paterson who, in their examination of the contribution of scholars to the International Panel of Climate Change (IPCC), conceptualised the field as the ‘international field of climate politics’.⁷¹ Their field studies demonstrate that this raises consciousness to the overarching point and purpose of these bodies and allows consideration of the symbolic power of the IPCC within this field. Their studies also ensure that the broader political significance of what might otherwise be considered to be internal intellectual matters is not lost.

Who is in the field?

A study of law’s contribution to the field of environmental politics raises a further challenge: whose lives should be studied? Neither Roberts nor Sugarman faced this dilemma. For Roberts, the identity of international academic lawyers was relatively clear. She could look to the academics who predominantly published in this field and its subfields. For Sugarman, it was easy to identify the small and close network of academics contributing to the textbook tradition in the early period. In contrast, the criteria that may qualify someone as an environmental lawyer is subject to constant revision, as well as contestation. To understand the field, it is necessary to consider and articulate these changing criteria.

The work of environmental law academics, particularly their textbooks, might provide some guidance on who might be considered to be an environmental law academic at a particular point in time. By this I mean that we can look at which laws (cases and statutes) their scholarship deems to be part of the environmental law empire and look for lawyers who have either contributed to the cases (as solicitors, counsel or judges) or whose practice draws largely from this body of law. However, just how much environmental law scholarship corresponds with the work of environmental lawyers is something to be interrogated rather than assumed. In all areas of law, it has been difficult for members of the academy to keep up with the latest developments in the profession and, perhaps surprisingly to some, studying lawyers of all stripes has not been one of the central objects of the discipline. Traditional legal education and scholarship, in part for the reasons provided by Sugarman, has often reflected the work of judges (i.e. their decision-making) rather than the broader profession.⁷² Further, while there exists a body of environmental law textbooks, there is ongoing debate over whether they are needed for environmental law courses, with many teachers drawing from a range of texts and case studies rather than a textbook.⁷³

Today it appears that lawyers who represent government and industries associated with pollution and environmental damage are considered to be environmental lawyers. For example, legal ethics lawyer Stephen Vaughan treats lawyers within commercial law firms whose work helps facilitate environmental harms as environmental lawyers and has considered the ethics of this work.⁷⁴ There are even suggestions that all members of commercial firms are environmental lawyers, or at least need to be well versed in environmental (particularly climate) issues, due to the emergence of ESG (environmental, social and governance) practices.⁷⁵ This again points to the importance of problematising rather than assuming the meaning of the term ‘environmental lawyer’. Exactly how these new environmental lawyers and their activities have constructed the sub-field of environmental lawyering, competing and cooperating with other members of the sub-field and carving out a distinctive professional identity, is therefore worthy of exploration. The relational component of field theory provides a useful thinking tool for comparing these different groups.

The importance of life writing

These changes in the number and interests of environmental lawyers further support the case for a field study project that relies heavily on life writing, as this can reveal the central motivations and interests of the lawyers involved in the sub-field. Recent field studies have emphasised the importance of the existential to understanding how fields are constructed and how they change over time. For example, analysing the potential of field studies to explore social movements, sociologist Nick Crossley considers how a range of material and existential concerns can lead people to not only join social movements but also create lives and careers that facilitate activist work.⁷⁶

Crossley challenges the thinking of rational actions theorists who suggest that strategic action within movements occurs when individuals have time to reflect and engage in society and gain exposure to the harms that bring about social disadvantage. Instead, he suggests that ‘those with a taste for contention make their own temporal opportunities and expose themselves (qua carer) to social disadvantage’.⁷⁷ This includes choosing jobs or carving out careers ‘affording greater opportunity for participation in political activities and affirming the individual’s rejection of materialist values’.⁷⁸ While Crossley gives the examples of caring professions and work for government, it is possible to conceptualise the work of movement-orientated environmental lawyers as a form of protest that might be considered to be part of the movement.⁷⁹

My sense is that several of the early environmental lawyers created new legal work, and the occupation of environmental law scholar or professional, because these activities and jobs allowed them to further progressive ends. Sabin’s work, described earlier, suggests that the ends may not primarily relate to the environmental movement but might instead come from a sense that government needs to be kept in check when it comes to furthering progressive causes. My preliminary research suggests that early environmental lawyers in Australia were more closely aligned with environmental movements than the lawyers studied by Sabin, possibly leading to different conceptions of the new environmental law organisations and their work.⁸⁰

Importantly, inquiries into the existential motivations of lawyers should not begin and end with those who were obviously connected to the environmental movement. Understanding how and why lawyers in commercial law firms and government departments became environmental lawyers also requires a consideration of both the rational and existential. It raises questions about the identity, as well as ethics, of these lawyers. Do the lawyers with dual environmental and government identities, or environmental and corporate identities, identify primarily as government and corporate lawyers? How do they navigate or consider the ethics of their role and relate to the growing environmental consciousness in society? And how do the existential motivations of lawyers from within and outside the environmental movement lead to conflict and competition among practitioners? How has this constructed the field of environmental law?

Considering the connection between these different types of environmental lawyers with the natural and urban environment presents as a further important line of inquiry, falling partly within the existential, that might help explain the cooperation and competition between these different groups. For example, the majority of early environmental lawyers, and the first environmental law associations, were based in Sydney, a densely populated city. While there were many activists in Tasmania and Queensland who helped propel some of the major legal and political battles (most notably the Tasmanian Dams Case⁸¹), the leading early environmental lawyers do not come from either of these states. What was it that drew Sydney lawyers to environmental causes around the country? Perhaps a better question might be: how did environmental activists around Australia coopt Sydney practitioners? Understanding a lawyer’s relationships with particular places and how it influences their work strikes me as an important but unexplored dynamic within environmental law. Put simply, questions of meaning and identity, which raise questions of how professionals relate to the environment, should sit at the heart of a study of how law contributes to environmental politics. Life writing presents as one of the most useful tools for providing answers to these questions.

Conclusion

Sugarman’s and Roberts’s studies suggest that life writing can provide new insights into the social and political significance of a legal category. Sugarman’s thesis explains how judges and academics together contributed to changes to the law and the structure of experts within the legal profession. It penetrates a persistent myth—the common law frame of mind—that has disguised the important role of academics within society of creating legal categories and maintaining the legitimacy and heightened status of the judiciary. Roberts’s thesis suggests that there are multiple international laws being created throughout the world by both academics and practising lawyers. Her book makes a strong case that biographical data are crucial to understanding who holds power and why, and which countries have become dominant in this space.

In a similar vein, I have suggested that a study of environmental lawyers, situated within the field of environmental politics, has the potential to provide new understandings of Australian law in the second half of the twentieth century and its contribution to environmental politics. Asking what the categories of environmental law and environmental lawyer mean, and who has gained a foothold into the sub-field of environmental lawyering, can contribute to a better understanding of how the field was constructed as well as its potential to bring about social change. I have suggested that this exercise of injecting life into understandings of a legal category involves combining questions and theories from the disciplines of law, history and sociology. It involves questions of existential meaning that help to connect law with people and place. In the context of environmental law, these connections promise to reveal how the threat or existence of environmental harms in forests and lakes in Tasmania’s wilderness motivated city-based lawyers. It promises to reveal how the strategies of activists in Tasmania, and the relationships they formed, were translated into legal forms. These types of ambitious life writing projects suggest that life writing should be considered a vital tool for the discipline of law to better understand itself and its contribution to the social, political and natural world.

Acknowledgements

The work underpinning this article was supported by a Discovery Early Career Researcher Award funded by the Australian Research Council, DE220100264.

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1. 1 See David Sive, ‘Some Thoughts of an Environmental Lawyer in the Wilderness of Administrative Law’, Columbia Law Review 70, no. 4 (April 1970): 612–51, doi.org/10.2307/1121309; Richard Lazarus, The Making of Environmental Law (University of Chicago Press, 2004), 47. This origin story could, however, be subject to greater comparative scrutiny.

2. 2 Patricia Ryan, ‘Did We? Should We? Revisiting the 70s’ Environmental Law Challenge in NSW’, Environmental and Planning Law Journal 18, no. 6 (2001): 561, 567–77.

3. 3 Chloe Kennedy, ‘Sociology of Law and Legal History’, in Research Handbook on the Sociology of Law, ed. J Přibáň (Edward Elgar Publishing, 2020), 31, 35, doi.org/10.4337/9781789905182.00010.

4. 4 Kennedy, ‘Sociology of Law and Legal History’, 35.

5. 5 Paul Warde, Libby Robin and Sverker Sörlin, The Environment: A History of the Idea (John Hopkins University Press, 2018).

6. 6 In 2020, the UN Environment Programme implemented the ‘Geneva Road Map’, a platform for collaboration between academia and environmentalists to devise initiatives and seek commitments to secure the right of defenders to act for the protection of the environment. The platform speaks of the UN’s belief that law, upheld and maintained by lawyers, is crucial to the protection of the environment. See: United Nations Human Rights Council, ‘Recognising the Contribution of Environmental Human Rights Defenders to the Enjoyment of Human Rights, Environmental Protection and Sustainable Development’, A/HRC/RES/40/11, adopted 21 March 2019, ap.ohchr.org/documents/dpage_e.aspx?si=A%2FHRC%2FRES%2F40%2F11. See also: Geneva Environment Network, ‘Geneva Roadmap 40/11 for Environmental Human Rights Defenders’, accessed 21 October 2025, www.genevaenvironmentnetwork.org/environment-geneva/organizations/geneva-roadmap-for-environmental-human-rights-defenders/.

7. 7 This is not to say that there have not been any studies. For a recent English example, see: Carolyn Abbott and Maria Lea, Environmental Groups and Legal Expertise: Shaping the Brexit Process (UCL Press, 2021).

8. 8 David Sugarman, ‘Legal Theory, the Common Law Mind and the Making of the Textbook Tradition’, in Legal Theory and Common Law, ed. W. Twining (Basil Blackwell, 1986), 26.

9. 9 Perhaps the most influential of Thompson’s works in the sphere of critical legal studies is E. P. Thompson, The Making of the English Working Class (Victor Gollancz, 1963).

10. 10 Anthea Roberts, Is International Law International (Oxford University Press, 2017), doi.org/10.1093/oso/9780190696412.001.0001.

11. 11 Pierre Bourdieu, Outline of a Theory of Practice (Cambridge University Press, 1977), doi.org/10.1017/CBO9780511812507. Bourdieu published many works on the concept of fields and others have revised several of his concepts.

12. 12 On legal life writing embracing objects as well as humans see: David Sugarman, ‘From Legal Biography to Legal Life Writing: Broadening Conceptions of Legal History and Socio-Legal Scholarship’, Journal of Law and Society (2015): 7, 29, 31–2, doi.org/10.1111/j.1467-6478.2015.00696.x. Life writing is a more expansive term than biography in that it draws from biographical data but does necessarily seek to adhere to some of the loose tenets (there are no fixed rules) of biography. As Barbara Caine explains, the term ‘life writing’ ‘emerged in the 1970s and contained an explicit critique of the fairly rigid and restrictive nature of earlier approaches to biography in terms of both its subject matter and its form. The idea of life writing also allowed a new way of looking at a range of different kinds of writing, such as letters and diaries, which had little place in the established literary cannons’. See Barbara Caine, Biography and History (Red Globe Press, 2019), 63.

13. 13 See also: Susan Bartie, ‘Understanding the World through Legal Biography—Lessons from History, Sociology and Law’, International Journal of the Legal Profession 32, no. 2 (2025): 185, 193–5, doi.org/10.1080/09695958.2024.2443402.

14. 14 Sugarman, ‘Legal Theory’. Recently, we have seen a rise in legal scholarship that studies textbooks and their authors as a way of interrogating the politics of law, particularly, but not only, in the field of international law. See: Luíza Leão Soares Pereira and Fabio Costa Morosini, ‘Textbooks as Markers and Makers of International Law: A Brazilian Case Study’, European Journal of International Law 35, no. 1 (2024): 25, doi.org/10.1093/ejil/chae007; Ana Luísa Bernadino, ‘Going by the Book: What International Law Textbooks Teach Us Not to Know’, in International Law’s Invisible Frames, ed. Andrea Bianchi and Moshe Hirsch (Oxford University Press, 2021), 293, doi.org/10.1093/oso/9780192847539.003.0017; Susan Bartie and Meredith Hagger, ‘Bringing the Idea of the Environment to Law: A Comparative Study of Early Environmental Law Textbooks’, Legal Studies 44, (2024): 720, 725–7, doi.org/10.1017/lst.2024.28 (with explicit reference to Sugarman and Roberts’ work).

15. 15 Roberts, Is International Law International?

16. 16 Roberts, Is International Law International? 50.

17. 17 Sugarman, ‘Legal Theory’.

18. 18 Sugarman, ‘Legal Theory’, 33.

19. 19 Sugarman, ‘Legal Theory’, 26.

20. 20 Sugarman, ‘Legal Theory’, 33.

21. 21 Several of Australia’s most senior judges acknowledged this in surprisingly candid interviews with a US researcher. See: Jason Pierce, Inside the Mason Court Revolution—The High Court of Australia Transformed (North Carolina Academic Press, 2006).

22. 22 As legal historian Wes Pue has pointed out, we can interrogate legal myths and create better accounts of reality, but we cannot entirely escape them. See Wesley Pue, ‘In Pursuit of Better Myth: Lawyers’ Histories and Histories of Lawyers’, Alberta Law Review 33, no. 4 (1995): 730, doi.org/10.29173/alr1113.

23. 23 Sugarman, ‘Legal Theory’, 27.

24. 24 Sugarman, ‘Legal Theory’, 26.

25. 25 Russel Sandburg, for example, has recently explained how David Sugarman and other critical legal and socio-legal historians pioneered a new historical tradition in England and the United States. See: Russell Sandberg, Subversive Legal History: A Manifesto for the Future of Legal Education (Routledge, 2021), doi.org/10.4324/9780429200618.

26. 26 A simple google scholar search suggests that it has been cited at least 150 times.

27. 27 Tanya Josev, ‘Judicial Biography in Australia: Current Obstacles and Opportunities’, University of New South Wales Law Journal 40, no. 2 (2017): 842, doi.org/10.53637/ZURF5177.

28. 28 For example, a number of international projects have emerged, often led by socio-legal scholars, which have studied the lives and careers of women lawyers. See: Ulrike Schultz, Gisela Shaw, Margaret Thornton and Rosemary Auchmuty, eds., Gender and Careers in the Legal Academy (Hart Publishing, 2022), doi.org/10.5040/9781509923144; Ulrike Schultz and Gisela Shaw, Women in the World’s Legal Profession (Hart Publishing, 2003).

29. 29 Jacqueline Fox, Bound by Every Tie of Duty: John Lewes Pedder, Chief Justice of Van Diemen’s Land (Australian Scholarly Publishing, 2018).

30. 30 Roberts, Is International Law International?

31. 31 Roberts, Is International Law International? 2.

32. 32 See, for example, Anthony D’Amato, ‘Is International Law Really ‘Law’?’ Northwestern University Law Review 79, no. 5 (1984–85): 1293.

33. 33 For a similar argument in the context of criminal law, see: S. Bronnitt, ‘Towards a Universal Theory of Criminal Law: Rethinking the Comparative and International Project’, Criminal Justice Ethics 27, no. 1 (2008): 53, doi.org/10.1080/0731129X.2008.9992228.

34. 34 Roberts, Is International Law International? 24.

35. 35 For a recent treatment of Bourdieu’s position on agency and social determinism, see: John E. Joseph, ‘The Agency of Habitus: Bourdieu and Language at the Conjunction of Marxism, Phenomenology and Structuralism’, Language and Communication 71 (2020): 108, doi.org/10.1016/j.langcom.2020.01.004.

36. 36 While this is not the place to delve deeply into the changing concepts within field theory, Nick Crossley has provided some useful insights and interpretations of the concept. See: Nick Crossley, ‘The Phenomenological Habitus and its Construction’ Theory and Society 30, no. 1 (2001): 81, doi.org/10.1023/A:1011070710987.

37. 37 Roberts, Is International Law International? 24–7, 129, 244.

38. 38 Roberts, Is International Law International? 52.

39. 39 Roberts, Is International Law International? 321.

40. 40 Members of this early generation include Judge Paul Stein (Sydney), Justice Murray Wilcox (Sydney), Justice Peter McClellan (Sydney), Simon Molesworth (Melbourne), Jo-Anne Bragg (Brisbane), Judge Mahla Pearlman (Sydney), Gerry Bates (University of Sydney and The Australian National University [ANU]), Ben Boer (Macquarie University and the University of Sydney), Donna Craig (Macquarie University and Western Sydney), Doug Fisher (Queensland University of Technology, University of Queensland, ANU), Rob Fowler (University of Adelaide, University of South Australia) and David Farrier (University of Wollongong, University of New South Wales).

41. 41 The diversity and expansion of the subject can be appreciated through a comparison of early and recent volumes of environmental law textbooks.

42. 42 Mark Smith, ‘Environmental Law Teacher Recognised for Legendary Teaching’, Western Sydney University News Centre, 18 August 2017.

43. 43 The first Australian textbooks were published in the 1980s: D. E. Fisher, Environmental Law in Australia: An Introduction (University of Queensland Press, 1980); G. M. Bates, Environmental Law in Australia (Butterworths, 1983); David Farrier, Environmental Law Handbook: Planning and Land Use in New South Wales (Redfern Legal Centre Publishing, 1988).

44. 44 The first public interest environmental law firm was founded in Sydney in 1985, the Environmental Defenders Office. See: Murray Hogarth, Law of the Land—The Rise of the Environmental Defenders (Environmental Defenders Office, 2015).

45. 45 The chief judge of the Land and Environment Court, Judge Brian Preston, serves as a good example.

46. 46 See Susan Bartie, Free Hands and Minds: Pioneering Australian Legal Scholars (Hart Publishing 2019): 28–9, doi.org/10.5040/9781509922642.

47. 47 See Hillary Charlesworth, ‘Critical Legal Education’ Australian Journal of Law and Society 5 (1988–89): 27.

48. 48 Richard Macrory, Irresolute Clay: Shaping the Foundations of Modern Environmental Law (Hart Publishing, 2020), doi.org/10.5040/9781509928149.

49. 49 Macrory, Irresolute Clay, 25.

50. 50 Macrory, Irresolute Clay, 25.

51. 51 Macrory, Irresolute Clay, 24–5.

52. 52 Macrory, Irresolute Clay, 25–6.

53. 53 Paul Sabin, ‘Environmental Law and the End of the New Deal Order’, Law and History Review 33, no. 4 (2015): 965, doi.org/10.1017/s0738248015000462. For a book-length account of the emergence of environmental law that relies less on biographies, see: Richard J. Lazarus, The Making of Environmental Law (University of Chicago Press, 2023).

54. 54 Sabin, ‘Environmental Law’, 973.

55. 55 Sabin, ‘Environmental Law’, 972–3.

56. 56 Sabin, ‘Environmental Law’, 981.

57. 57 Sabin, ‘Environmental Law’, 972.

58. 58 This is clearly explained in Tim Bonyhady’s history of environmental legal actions in the 1970s and 1980s. See: Tim Bonyhady, Places Worth Keeping—Conservationists, Politics and Law (Allen and Unwin, 1993).

59. 59 Murray Wilcox, Simon Molesworth and Leonie Kelleher were key lawyers who provided advice at various junctures and also enlisted the media, promoting the idea that the federal parliament had the power to pass legislation to override the Tasmanian legislation that gave approval for the dam.

60. 60 Macrory, Irresolute Clay, 30–1.

61. 61 This is a concept that derives from Bourdieu. For an explanation of the concept in the context of global environmental politics, see: Hannah R. Hughes and Mathew Paterson, ‘Narrowing the Climate Field: The Symbolic Power of Authors in the IPCC’s Assessment of Mitigation’, Review of Policy Research 34, no. 6 (2017): 744, doi.org/10.1111/ropr.12255.

62. 62 Hughes and Paterson, ‘Narrowing the Climate Field’, 746.

63. 63 Stuart A. Scheingold, The Politics of Rights: Lawyers, Public Policy and Political Change, 2nd ed (University of Michigan Press, 2007), xix–xx.

64. 64 Michael W. McCann, Pay Equality Reform and the Politics of Legal Mobilisation (Chicago University Press, 1994).

65. 65 Charles R. Epp, The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective (Chicago University Press, 1998); Charles R. Epp, Making Rights Real: Activists, Bureaucrats, and the Creation of the Legalistic State (Chicago University Press, 2009); Charles E. Epp, ‘Law as an Instrument of Social Reform’, in The Oxford Handbook of Law and Politics, ed. Keith Whittington, R. Daniel Kelemen and Gregory A. Caldeira (Oxford University Press, 2008).

66. 66 I consider that although Sugarman does not frame his study with field theory, it covers much the same ground.

67. 67 Neil Fligstein and Doug McAdam, A Theory of Fields (Oxford University Press, 2012), 117, doi.org/10.1093/acprof:oso/9780199859948.001.0001.

68. 68 Fligstein and McAdam, A Theory of Fields, 117–21.

69. 69 See Drew Hutton and Libby Connors, A History of the Environment Movement (Cambridge University Press, 1999).

70. 70 See, for example, the laws described in Tim Bonyhady, This Colonial Earth (Miegunyah Press, 2000). He suggests that law relating to the environment were proclaimed in 1788.

71. 71 Hughes and Paterson, ‘Narrowing the Climate Field’.

72. 72 See, for example, the neat explanation of this tradition in Robert W. Gordon, ‘The Harvard Models in Their Native Habitat and Abroad—Reflections’, in American Legal Education Abroad—Critical Histories, ed. S. Bartie and D. Sandomierski (New York University Press, 2021), 370, 372–5, doi.org/10.18574/nyu/9781479803583.003.0018.

73. 73 Stuart Bell, ‘Is Your Textbook (Still) Really Necessary?’, in Teaching and Learning in Environmental Law: Pedagogy, Methodology and Best Practice, ed. A. Kennedy, A. du Plessis, R. Fowler, E. Hamman and C. Warnock (Edward Elgar, 2021), 69, doi.org/10.4337/9781789908534.00011.

74. 74 Steven Vaughan, ‘The Unethical Environmental Lawyer’, UCL Research Paper Series, no. 18 of 2022 (2022), ucl.ac.uk/laws/events/2022/oct/unethical-environmental-lawyer. See also: Steven Vaughan and Karen Nokes, ‘Role Morality in Action? An Empirical Exploration of the Professional Ethics of Practising Environmental Lawyers’, Legal Ethics (2025), doi.org/10.1080/1460728x.2025.2489201.

75. 75 Centre of the Legal Profession at Harvard Law School, ‘Law Firms in the ESG Game—ESG Practices Pervade the Legal Industry’, The Practice, January/February 2023, clp.law.harvard.edu/knowledge-hub/magazine/issues/esg-and-lawyers/law-firms-in-the-esg-game/.

76. 76 Nick Crossley, ‘From Reproduction to Transformation: Social Movement Fields and the Radical Habitus’, Theory, Culture & Society 20, no. 6 (2003): 43, doi.org/10.1177/0263276403206003.

77. 77 Crossley, ‘From Reproduction to Transformation’, 53.

78. 78 Crossley, ‘From Reproduction to Transformation’, 53.

79. 79 Crossley, ‘From Reproduction to Transformation’, 53.

80. 80 See Hogarth’s explanation of the different environmental lawyers and their motivations: Hogarth, Law of the Land.

81. 81 Commonwealth v Tasmania (1983) 158 CLR 1.