Sunday, April 09, 2017

Living world: Should natural entities be treated as legal persons?

This year the New Zealand parliament voted to give legal personhood to a river and provided for the appointment of two guardians to represent it. In India a court extended legal personhood to the Ganges and Yamuna rivers and the glaciers that feed them.

It defies our normal modes of thinking that natural entities such as trees, rivers, mountains, lakes, and glaciers should be given legal standing in courts and public life. And yet we take as a matter of course the legal rights of other inanimate entities:

The world of the lawyer is peopled with inanimate right-holders: trusts, corporations, joint ventures, municipalities, Subchapter R partnerships, and nation-states, to mention just a few. Ships, still referred to by courts in the feminine gender, have long had an independent jural life, often with striking consequences.

The quotation comes from a famous law review article on the topic of rights for natural entities entitled "Should Trees Have Standing? Toward Legal Rights For Natural Objects," written in 1972 by Christopher Stone, a professor of law at the University of Southern California.

Perhaps our most important blind spot is that we forget that we humans are natural entities as well. Scientists study our bodies just as they do the bodies of other animals--except that these scientists are not allowed to kill humans to dissect them or expose them to potentially harmful substances without informed consent. (Animal rights activists would argue that such protections should be extended to all animals.)

Ultimately, what's at stake is what our relationship with other natural entities will be and whether it is in our interest to grant them legal rights. It is well to remember that full legal rights for women, African-Americans, Native Americans, the mentally and physically disabled, and many other disadvantaged groups were once unthinkable, too. And yet, today few would argue against including these previously excluded groups within the realm of legal personhood.

But, one might say, these are people and belong to a special category. Nature cannot speak for itself as we humans do. To which law review author Stone replies:

It is not inevitable, nor is it wise, that natural objects should have no rights to seek redress in their own behalf. It is no answer to say that streams and forests cannot have standing because streams and forests cannot speak. Corporations cannot speak either; nor can states, estates, infants, incompetents, municipalities or universities. Lawyers speak for them, as they customarily do for the ordinary citizen with legal problems.

Now, perhaps the most important phrase in the above quotation is "in their own behalf." This explains why we might not regard it as sufficient merely to compel people by law and by custom to take care of natural entities. When natural entities do not have independent advocacy, it is all too easy to consider them merely as the instruments of humans. We call them "resources" and that means they are for our use as we please. Nature becomes merely a great vat of primordial clay from which we humans can take whatever we want and shape it to our needs without regard to the needs of any other entities.

This is the relationship of a master to a slave, Stone points out. That master is concerned about his slave as a piece of valuable property that he does not want stolen or injured by another; but the master reserves the right to injure the slave for his own purposes (through overwork, lack of food, poor medical care and, of course, involuntary servitude.)

In the United States we already have the Endangered Species Act. Lawyers speak regularly on behalf of species in court proceedings. The purpose of the act, of course, is not to protect individual organisms, but to insure the survival of an entire species. I wonder how we would be obliged to act if humans were classified as an endangered species under the law. What might we as a species be required to change to insure our own survival (or face an an angry and powerful federal judge)?

What we face instead of a judge is the rest of the natural world. In fact, scientists James Lovelock and Lynn Margulis proposed the Gaia Theory in the early 1970s. The theory re-imagines the Earth as a single biogeochemical system that is self-regulating in the way that a single organism is said to be. The organic and inorganic worlds influence one another. Geology, biology and chemistry are bound up as one field when we look, for example, at the carbonate layers of the Earth which were formed by living creatures. Life is not an afterthought on Earth; it is a major geological force on the planet.

This is not a new animism. This is not to say that rocks have the mental faculties of humans (though the opposite is sometimes said of people we don't like). But there is a flow of information and interaction which regulates key processes on the planet to keep it habitable.

Those engaged in climate change activism understand this and fear that the dawn of the Anthropocene means that the Earth will within the next several decades become increasingly hostile to the life which now inhabits it including human life.

But, the argument for legal rights for natural entities goes beyond human survival. It imagines that natural entities have worth in and of themselves and not just as materials necessary for human survival. This move has been essential for women and racial and ethnic groups who have achieved full legal rights. They have worth in and of themselves and not as mere instruments of others.

It may be profitable for a nation to lift up its oppressed peoples and include them in the mainstream of social, economic and political life. It may be good for all of us. But the worth of these oppressed peoples does not reside in their profitability, but in their status as autonomous individuals who have self-determination.

What goes unrecognized by most is that the natural entities we think are currently excluded from our legal and political lives are actually sitting in our courtrooms and legislatures across the planet. They sit quietly, implacably in their insistence that the laws of nature will not be contravened. Our understanding of such laws can be used to benefit us--to extract resources and to protect us from natural dangers--but we cannot repeal those laws for they do not arise from legislative or judicial fiat.

Slowly, haltingly, we are coming to understand this and providing representation for the entities of nature in our various institutions--representation that renders into human speech and writing the information that is running past us everyday in the environment as if it were coursing through a series of gargantuan broadband cables connecting everything on the planet.

This is why it is so disturbing to see an American administration who believes we should reverse this trend and go back to pretending that the natural entities aren't in the room. Those entities who are ignored turn to conflict to be heard. Already that conflict has taken the form of a great worldwide fever in the planet's atmosphere. It is in evidence in fisheries that have been depleted, soil that has been eroded or made too salty to sow, and water, air and land that continue to be fouled by toxic pollution.

We can easily see that these effects are due to the acts of humans. What we must now see is that they are also due to the reactions of nature. The conflict can only be resolved through dialogue, and that dialogue can only come into existence when we recognize that we are dealing with entities that have a life of their own.

Kurt Cobb is an author, speaker, and columnist focusing on energy and the environment. He has been a regular contributor to the Energy Voices section of The Christian Science Monitor and is author of the peak-oil-themed novel Prelude. In addition, he has written columns for the Paris-based science news site Scitizen, and his work has been featured on Energy Bulletin (now Resilience.org), The Oil Drum, OilPrice.com, Econ Matters, Peak Oil Review, 321energy, Common Dreams, Le Monde Diplomatique and many other sites. He maintains a blog called Resource Insights and can be contacted at kurtcobb2001@yahoo.com.

1 comment:

Michael Dowd said...

Thanks for this post, Kurt!

Our mentor, Thomas Berry, was especially passionate about this subject the last two decades of his life.

See the following...

Thomas Berry and an Earth Jurisprudence: an Exploratory Essay:
http://trumpeter.athabascau.ca/index.php/trumpet/article/viewFile/106/110

Thomas Berry's "Ten Principles of Earth Jurisprudence":
http://therightsofnature.org/thomas-berrys-ten-principles-of-jurisprudence/

Wikipedia page on "Earth Jurisprudence":
https://en.wikipedia.org/wiki/Earth_jurisprudence

Together for the future,

~ Michael Dowd & Connie Barlow
http://TheGreatStory.org