Rights of Nature: A Few Theoretical Considerations

Photo: Yann Arthus Bertrand, Utah Canyon

By Megan Barickman

It has only been 46 years since Christopher Stone published “Should Trees Have Standing? Toward Legal Rights for Natural Objects,” his seminal essay in which he first introduced the idea that society should “give legal rights to forests, oceans, rivers, and other so-called ‘natural objects’ in the environment – indeed, to the natural environment as a whole.”[1] The Rights of Nature movement, despite considerable gains over the course of these few years, is still relatively young, and its proponents are still actively involved in debates about how to best articulate its conceptual framework. In what follows, I will attempt to summarize four of the most pressing (and interesting) theoretical considerations that have emerged in contemporary writing about Rights of Nature.

What Do We Mean When We Say ‘Nature’?

As Kate Soper writes in her book What is Nature: Culture, Politics and the Non-Human, the term “nature” is a complex and ambiguous concept.[2] We use “nature” to indicate that which is untouched by human hands, as well as to describe manufactured products (all-natural dish soap). We use the term to talk about that which is inherent in us (human nature) and to describe the vast workings of ecosystems that lie outside of, or encompass, human activity. There is no doubt that nature, in all of these usages, is meant to signify the ‘other,’ the opposite of culture, human manipulation, and in fact, humanity itself.

As philosophers increasingly question the boundaries between nature and culture, the question of what exactly we mean when we say “nature,” and what we want to say instead, becomes more and more prescient. For Rights of Nature advocates, who wish to change the paradigm of our interaction with the non-human parts of the world, this is a question of particular importance. That is not to say, however, that this question requires an immediate answer. Rather, it requires our careful attention, especially as we attempt to answer the other questions surrounding Rights of Nature.

On What Grounds Do We Grant or Acknowledge Rights of Nature?

Directly connected to the question of how we define nature is the question of the theoretical and legal grounding on which Rights of Nature will be established. Most proponents of Rights of Nature will agree that rights ought to be accorded to nature (or recognized) on the basis of nature’s existence alone. As Judith Koons compellingly argues, the universe is revealed to us as self-organizing and self-manifesting, and this is enough to demonstrate its intrinsic worth.[3] While the issue is still a complex one, and there is plenty of room for minor theoretical disagreements, the general consensus shows just how closely this rationale is intertwined with the core tenant of Rights of Nature; nature ought to be protected, not for anything that we see in it, but simply because it is, on its own terms.

As Alessandro Pelizzon and Monica Gagliano point out in their paper “The Sentience of Plants: Animal Rights and Rights of Nature Intersecting?,” there is good reason to shy away from other rationales for rights, even though doing so has caused some environmental activists to be less accepting of the tenets of Rights of Nature than might be hoped.[4] Pelizzon and Gagliano address, in particular, Peter Singer’s contention that rights ought to be accorded to animals on the basis of sentience, which Singer defines as the capacity for pain and happiness.[5] In their article, Pelizzon and Gagliano outline several new studies regarding the cognitive capacity of plants in order to argue that sentience, like nature itself, is a culturally constructed and negotiable term, and therefore, is not the most effective basis for extending rights to non-human entities. Rather, the authors suggest, the principle of rights should be understood on the grounds of a constantly evolving knowledge of the other.

Pelizzon and Gagliano’s point is an important one for Rights of Nature in general. If Rights of Nature is to be taken seriously as the ideological rejection of paradigms that assign value to nature based on its relationship and meaning to us, then it must also be a shift to a new evaluation of nature that acknowledges our limited perspective.

What Part of Nature Receives the Rights?

We cannot, however, simply leave nature alone. Whether such an approach was ever possible is debatable – we are, after all, inhabitants of Earth and will always have to decide on the terms of our habitation – and we have now reached a stage of development where every ecosystem has been altered, in some way, by human influence. We will have to decide, despite our limited perspective, what parts of existence ought to be preserved as they are found today, what ought to be restored to the best of our knowledge and ability, and how we will develop and manage the integrated spaces where plants and animals exist in the midst of human habitation. Deciding what parts of nature should be given legal rights must be a large part of this decision-making process, if Rights of Nature is to be successful.

In their 1994 article on Nature’s Rights, Susan Emmenegger and Axel Tschentscher outline the four major paradigms that might be used to guide this discussion: holism, ecocentrism, biocentrism, and physiocentrism.[6] Holism and ecocentrism focus on ecosystems or systems of relationships as rights-bearing entities, while physiocentrism and biocentrism would grant rights to discrete entities rather than the relationships between them.

To be more specific, in holism, the world is seen as a single entity, an interconnected whole, which in and of itself is protected by rights. While ecocentrism also focuses on the relationships between living things and their environment, it is more nuanced and complex than holism. In ecocentrism, each relationship or set of relationships, such as an ecosystem, is seen as a potential rights bearer. In physiocentrism, every living and non-living thing is inherently valuable and is potentially a rights-bearing entity. Biocentrism, on the other hand, considers the interests of living things only.

There are difficulties inherent in each approach. Holism, for instance, is blind to the very real dilemma of competing interests. To provide an extreme example, very few people would want to argue that a deadly virus has as much a right to exist as do the people it infects, or that the “relationship” between a virus and its human host should be protected. Perhaps even more importantly, if rights are to be meaningful as a legal tool, they must foresee and allow for the discussion of competing interests. The Rights of Nature articles included in the constitutions of Ecuador and Bolivia, which are essentially holistic, are often criticized on these grounds as vague and internally inconsistent. Nathalie Ruhs and Aled Jones point out the way in which the articles treat all of nature and humanity as a legal conglomerate, leading to potentially unresolvable conflicts between the Rights of Nature, humans, and the rights of different locales.[7]

Ecocentrism, on the other hand, by treating the rights of different ecosystems and relationships separately, largely avoids this problem. However, both the holistic and the ecocentric paradigms, as Emmenegger and Tschentscher point out, could cause us to try and “pause” nature by focusing on maintaining a balance of relationships that, in reality, are constantly in a natural state of flux. It is worth noting that physiocentrism and biocentrism do not inherently obviate this problem either; it is possible to imagine that if all species were granted the inherent (and equal) right to exist, then extinction would need to be avoided at all costs, even when it is arguably the result of natural causes.

Emmenegger and Tschentscher, who favor biocentrism as the model for Rights of Nature because it is the closest to our current individualistic rights legal system, argue this problem can be circumvented by allowing for change, such as extinction, but only if the “rules of game are fair.” That is, if we know that extinction or radical changes occur very slowly in most cases where human influence is not operative, then we can assume that a species moving rapidly toward extinction or a radical change isn’t being given its fair evolutionary chance.

Not everyone agrees, however, that Rights of Nature should be set up as a “marketplace of interests” that mirrors our own current legal system[8]; there are many who object that excessively individualistic rights will fragment the integrated system that is nature. As Peter Burdon points out, there are now discourses on human rights that seek to shift rights from individuals to the relationships between them. Burdon argues that this new direction of rights discourse will be the most useful in developing a working Rights of Nature model.[9]

What Role Should Humans Play?

But what, and this brings us full circle, is humanity’s ideal relationship to ‘nature’? Proponents of Rights of Nature may readily agree that current environmental laws will always be ineffective because they are founded on an ideology that views nature as fundamentally separate from (and often owned by) humanity, but it is much harder, as should be obvious by now, to determine the proper relationship between humans and the rest of nature. Many new theories have emerged in recent years, often akin to indigenous world views, that challenge the nature/culture divide on which so much of our thinking about nature is based.[10] Rights of Nature demands that we take seriously how we think of nature, but we must also take seriously the fact that, fair or unfair, it is humanity that must make the decisions about how to move forward.

Anne Louise Schillmoller and Alessandro Pelizzon in their article “Mapping the Terrain of Earth Jurisprudence: Landscape, Thresholds and Horizons,” critique many of the new philosophical gestures that seek to shift values away from human exceptionalism. Schillmoller and Pelizzon say that these gestures ignore hierarchies of interest and differentials of power.[11] For example, how and by whom will non-human voices be represented? While theory may decenter humanity’s dominance, practice, in Christopher Stone’s words, will remain “unavoidably anthropocentric.”

In order to practice Rights for Nature carefully and responsibly we must be cognizant of asymmetrical power relations and establish the epistemic conditions of knowledge, i.e. what information is meaningful and who speaks with accuracy and authority. The good news is that Rights of Nature advocates are already asking the right questions to succeed on this front. We need only remain active and engaged in our debate of these considerations.

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[1] Stone, Christopher. “Should Trees Have Standing? Toward Legal Rights for Natural Objects.” Southern California Law Review, issue 45. (1972). pp 450-501.

[2] Soper, Kate. What is Nature? (Massachusetts: Blackwell Publishers, Ltd., 1995).

[3] Koons, Judith E. “What is Earth Jurisprudence?:Key Principles to Transform Law for the Health of the Planet” in Exploring Wild Law: The Philosophy of Earth Jurisprudence 45 (Peter Burdon ed. 2011).

[4] Pelizzon, Alessandro and Monica Gagliano. “The Sentience of Plants: Animal Rights and Rights of Nature Intersecting?” Australian Animal Protection Law Journal. Vol. 11, 2015: pp. 5-13.

[5] Singer, Peter. Animal Liberation: A New Ethics for Our Treatment of Animals. 2nd ed. (New York, NY: Random House, 1995).

[6] Emmenegger, Susan and Axel Tschentscher. “Taking Nature’s Rights Seriously: The Long Way to Biocentrism in Environmental Law.” Georgetown International Environmental Law Review. Vol. VI: Issue 3, Summer 1994: pp 576-579

[7] Ruhs, Nathalie and Aled Jones. “The Implementation of Earth Jurisprudence through Substantive Constitutional Rights of Nature.” Sustainability. 2016: p. 174.

[8] Ibid.

[9] Burdon, Peter. “The Rights of Nature: Reconsidered.” Australian Humanities Review, Issue 49. pp. 69-89.

[10] See: Kent, Jaimie. “Rights of Nature and the Political Implications of Post-Humanist Ecologies” (2017). Theses and Dissertations. 686. http://ir.library.illinoisstate.edu/etd/686.

[11] Schillmoller, Anne Louise and Pelizzon, Alessandro (2013) “Mapping the Terrain of Earth Jurisprudence: Landscape, Thresholds and Horizons,” Environmental and Earth Law Journal (EELJ): Vol. 3: Iss. 1, Article 1. Available at: https://lawpublications.barry.edu/ejejj/vol3/iss1/1

Earth Law Means Rights for All (Including Humans)

By Darlene Lee

Origins of Earth Law

The oldest hominid (a term scientists apply to humans and their two-legged pre-human predecessors) is 7 million years old.[1] Agriculture appeared only 12,000 years ago[2]. That means in the intervening millions of years, humans moved across the land, living in a way that left the lightest footprint on the environment.

From these gatherer-hunter roots, Traditional Ecological Knowledge (TEK) of Indigenous peoples of the world developed. Indigenous people are people defined in international or national legislation as having a set of specific rights based on their historical ties to a particular territory, and their cultural or historical distinctiveness from other populations that are often politically dominant.[3]

TEK acknowledges the intrinsic rights of all living systems to exist, persist, and flourish. This sense of place and concern for individuals leads to two basic TEK concepts: 1) all things are connected and 2) all things are related. Humans are not the center of the universal web, just one strand of many. Indigenous cultures view both themselves and nature as part of an extended ecological family that shares ancestry and origins.[4]

Rediscovery of Earth Law

In contrast, the ability of western scientific and technological advances to manipulate everything within reach (including each other) seems sourced from our ability to divest ourselves from all living systems. A Post-Enlightenment Western scientific worldview uses terms such as “natural resources” to describe everything other than humans and man-made objects. This perspective holds the other as property and therefore something to be used to our advantage. Even words like “protect” and “conserve” imply ownership, apart and separate.

Now, the world at large seems to be rediscovering indigenous wisdom by coming around to the idea that humans are part of a complex whole – not outside and independent of it. This includes an awareness that nature’s connection to humans determines the continued health and well-being of humans. According to the Dalai Lama, “Today we understand that the future of humanity very much depends on our planet, and that the future of the planet very much depends on humanity. But this has not always been so clear to us. Until now, you see, Mother Earth has somehow tolerated sloppy house habits. But now human use, population, and technology have reached that certain stage where Mother Earth no longer accepts our presence with silence. In many ways she is now telling us, ‘My children are behaving badly,’ she is warning us that there are limits to our actions.”[5]

Earth Law (also known as Wild Law or Earth Jurisprudence, from the book by Cormac Cullinan) shares similar perspectives on nature as the Indigenous worldview. Christopher D. Stone’s Should Trees Have Standing first argued for rights of nature in 1972, saying, “I am quite seriously proposing that we give legal rights to forests, oceans, rivers and other so-called ‘natural objects’ in the environment – indeed, to the natural environment as a whole.”[6]

While a singular view of nature does not exist across the myriad indigenous cultures, it’s useful to look for commonalities across a specific group – such as Native American cultures – for a clue about the orientation of indigenous cultures towards nature. Key commonalities include:

·         Nature is something we live within and as a part of it. No essential separation, no transcendental dualism, no Enlightenment search for objectivity, no Puritan fear of dangerous, chaotic nature, no distant observation in Romanticism.

·         Nature is the location of spirituality, both in individual beings (usually animals) and in a more general sense of the sacred.

·         Nature’s spiritual value calls for reverence, respect and humility in our relationship with it.[7]

Earth Law is a philosophy of law and human governance that is based on the idea that humans are only one part of a wider community of beings and that the welfare of each member of that community is dependent on the welfare of the Earth as a whole. It states that human societies will only be viable and flourish if they regulate themselves as part of this wider Earth community and do so in a way that is consistent with the fundamental laws or principles that govern how the universe functions, which is the ‘Great Jurisprudence’.[8]

In If Nature had Rights, a 2008 article in Orion Magazine, author Cormac Cullinan notes, “If we accept [Thomas] Berry’s propositions that the Earth is a communion of subjects, and that rights originate where the universe originates and not from human jurisprudence, it means we cannot claim that humans have human rights without conceding that other members of the Earth Community also have rights. In other words, the rights of the members of the Community are indivisible – there cannot be rights for some without there being rights for all.”[9]

In a 1972 case Sierra Club v. Morton, The Walt Disney Company sought to build a $35 million ski resort in the subalpine glacial valley of Mineral King, in California. The project had received all the permits to go forward, and Walt Disney had personally begun buying private property around Mineral King, when Sierra Club Legal Defense Fund (now called Earthjustice) sued the United States Secretary of the Interior in San Francisco federal court to block development of the ski resort. Although Sierra Club lost the battle, they won the war. The case moved forward after Sierra Club amended its complaint and Governor Regan withdrew his support. Mineral King was ultimately never developed and was subsequently absorbed into Sequoia National Park.

Justice William O. Douglas wrote a now famous dissenting opinion which states in part:

The voice of the inanimate object, therefore, should not be stilled. That does not mean that the judiciary takes over the managerial functions from the federal agency. It merely means that before these priceless bits of Americana (such as a valley, an alpine meadow, a river, or a lake) are forever lost or are so transformed as to be reduced to the eventual rubble of our urban environment, the voice of the existing beneficiaries of these environmental wonders should be heard … That is why these environmental issues should be tendered by the inanimate object itself. Then there will be assurances that all of the forms of life which it represents will stand before the court – the pileated woodpecker as well as the coyote and bear, the lemmings as well as the trout in the streams. Those inarticulate members of the ecological group cannot speak. But those people who have so frequented the place as to know its values and wonders will be able to speak for the entire ecological community.

Earth Law in Practice

On March 14, 2017, the Whanganui in New Zealand became the first river in the world to gain legal rights. The Whanganui Iwi (tribes) have fought for recognition of their relationship to the river since the 1870s, so the decision brings New Zealand’s longest running litigation in history to a close.[10] New Zealand's attorney general Chris Finlayson was quoted in the New York Times as acknowledging the Maori perspective as formative in the granting of rights to these natural entities, saying, “In their worldview, ‘I am the river and the river is me.” He added adding that “Their geographic region is part and parcel of who they are.”[11]

Rule of law is a framework based on rules meant to govern all individuals regardless of their stature or position. Rule of law is defined as the restriction of the arbitrary exercise of power by subordinating it to well-defined and established laws. Since its inception, the law has not just enabled, but helped further social evolution in the way that crampons assist the mountain climber. The law provides guidelines and support. The law also sets a baseline, to ensure that behavior does not fall below that (and when it does, there are consequences).  Law can be one of the most useful tools in our drive to stop and reverse environmental destruction.

The Whanganui is by no means alone. In 2008, Ecuador became the first country to include Rights of Nature in its Constitution. In 2010, Bolivia passed its Law of Rights of Mother Earth. The Atrato River in Colombia gained legal rights as a result of a case presented by the Colombian NGO Tierra Digna, Afro-Colombian organizations, and indigenous organizations.[12]

The amendment to the Ecuadorian Constitution was sourced from indigenous cultural perspectives. Traditional indigenous cultures prefer the term Mother Earth in referring to nature and our planet as it connotes the sacred relationship of all life. The reference employed by the Ecuadorian Constitution is "Nature, or Pachamama (Quechua for Mother Earth) where life is reproduced and exists".[13] The Kichwa notion of “Sumak Kawsay” or “buen vivir” in Spanish translates roughly to good living in English. It expresses the idea of harmonious, balanced living among people and nature. The idea centers on living “well” rather than “better” and thus rejects the capitalist logic of increasing accumulation and material improvement. Nature is conceived as part of the social fabric of life, rather than a resource to be exploited or as a tool of production. The Preamble of the Ecuadorian Constitution reads:

“We women and men, the sovereign people of Ecuador recognizing our age-old roots, wrought by women and men from various peoples, Celebrating nature, the Pachamama (Mother Earth), of which we are a part and which is vital to our existence…. Hereby decide to build a new form of public coexistence, in diversity and in harmony with nature, to achieve the good way of living, the sumac kawsay.”[14]

Conclusion

We have the opportunity now to shift the paradigm, from one in which everything and everyone can be considered property to one in which all living systems and beings are equal partners. We can do this by legally recognizing the inherent value and rights of the ecosystem whose support is essential to the survival of all living things on the planet (including us). This paradigm shift puts Earth at the center, with all its myriad parts as subjects within the whole. It recognizes that the biosphere called Earth has an inherent right to exist, thrive and evolve. Securing those rights in a court of law helps substantiate that shift in perspective, and gives citizens and local communities standing in the courts to defend the health and well being of living systems.

As the Cree Proverb states, “Only when the last tree has died, the last river been poisoned, and the last fish been caught will we realize we cannot eat money.” [15]

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[1] https://www.pearsonhighered.com/assets/samplechapter/0/2/0/5/0205835503.pdf

[2] https://genographic.nationalgeographic.com/development-of-agriculture/

[3] http://www.indigenouspeople.net/

[4] https://www.fws.gov/nativeamerican/pdf/tek-salmon-2000.pdf

[5] https://www.dalailama.com/messages/environment/universal-responsibility

[6] https://iseethics.files.wordpress.com/2013/02/stone-christopher-d-should-trees-have-standing.pdf

[7] https://www.uwosh.edu/facstaff/barnhill/ES-243/pp%20outline%20Native%20American.pdf

[8] https://en.wikipedia.org/wiki/Earth_jurisprudence

[9] Wild Law, page 97

[10] http://www.loc.gov/law/foreign-news/article/new-zealand-bill-establishing-river-as-having-own-legal-personality-passed/

[11] https://intercontinentalcry.org/rights-nature-indigenous-philosophies-reframing-law/

[12] https://news.mongabay.com/2017/05/colombias-constitutional-court-grants-rights-to-the-atrato-river-and-orders-the-government-to-clean-up-its-waters/

[13] https://celebratewcffg.files.wordpress.com/2013/09/rights-of-nature-for-wcffg.pdf

[14] https://intercontinentalcry.org/rights-nature-indigenous-philosophies-reframing-law/

[15] https://indiancountrymedianetwork.com/news/for-earth-day-quotable-native-wisdom-about-the-environment/