Life Beyond the Law - From the 'Living Constitution' to the 'Constitution of the Living'

Abstract

Among the many legacies left by Rudolf Bernhardt, the significance he attached to the doctrine of the 'living instrument' is crucial. Accordingly, the European Convention on Human Rights (ECHR) must be interpreted as evolving and dynamic - as a 'living' organism. In this article, I reflect on what it would mean to move from a 'living constitution' to a 'constitution of the living1. To answer this question, I consider what constitutes life itself - which forms of life currently merit legal consideration and care. The argument unfolds in three steps, each tracing a different way in which the protection of life is being reconfigured against the backdrop of ecological and climate change. The first part of the article is devoted to the 'liberal response' to ecological threats posed to life, which calls for a recognition of a self-standing human right to a healthy environment to better protect human life. The second part focuses on the 'critical liberal response', which advocates granting rights to nature to safeguard nonhuman life. Finally, I explore how the protection of life appears in critical posthumanist, new materialist, and decol-onial understandings of liveability. My objective here is not to propose a legal reform of the institutional functioning of the ECHR, but to speculate about how this 'living constitution' could 'constitute the living" differently. If the metaphor of life acts as a ruling device in the interpretation of the ECHR, only particular life-forms get protected, while others are eclipsed. I therefore think with Bernhardts invitation to consider the 'living' nature of the ECHR to reconceptualise the protection of life that animates human rights theory and practice today.