The Black Anthropocene: and the end(s) of the constitutionalizing project

This article is written in response to the assumptions and objectives of a recent project coming out of Tilburg Law School, called ‘Constitutionalizing in the Anthropocene’, but can be read just as easily as a stand-alone piece. The analysis presented here is based on an understanding of the concept ‘Anthropocene’ as rejecting modernist ontological assumptions about a split between human and nature. The concept says that this split is fictitious and can no longer hold in the present context of ecological crisis. The project to constitutionalize the conditions of living in the Anthropocene recognizes the importance of this shift but, this article argues, fails to fully acknowledge the implications for law. In contrast, this article explores the alternative concept of the ‘Black Anthropocene’ as a (para-)ontological understanding and an ethico-political response that better captures the concept of Anthropocene, including the legal implications. Grounded in the concept of Black Anthropocene, this article demarcates two distinct approaches to relationality and to the legal subject. It then utilizes this framing to rethink constitutionalization as disavowing the imbrication of law within a modernist ontology of separation and, as a result, the possibilities for constitutionalizing the Anthropocene at all. The article argues that focusing on anti-Blackness as central to the modernist ontology of human and world opens other possibilities for thought, leading us to question, rather than seek to preserve, the authority and legitimacy of projects of constitutionalization per se.