Should Nature Have Rights?

The Understory: Issue Thirteen

“Climate March 0777 Lorax” by Edward Kimmel (Shared by CC BY-SA 2.0)

“Law cannot be better than society’s idea of itself” – Philip Allot

Between the ages of 15-19, if you had asked me what I wanted to do for my career, I would have given you an answer without hesitation. I wanted to become an environmental lawyer so I could pursue justice for all animals (yes that includes humans), plants, and natural environments. I wrote my college admissions essay on a smallish orange character named the Lorax who attempted to speak for the trees, only to see the entire forest be felled before him. 

Leap forward nearly thirty years to today. I have a twelve-year-old son who has recently decided he wants to be a lawyer. After being enraged by movies such as When They See Us about the Central Park Five and Just Mercy about Bryan Stevenson and the Equal Justice Initiative, he came to realize how vital justice is to a functioning society, and how we should not expect justice to just appear. It has to be hard-fought. Those fights require people willing to do the fighting, sometimes at incredible personal risk and harm. And it was the mix of these conversations with my son— articles about our rapidly deteriorating regulatory environments, the rise of corporate over government power, and the need for deeper regulation—that inspired me to resurface questions.  How do we determine what should have rights and in what order? How might we consider alternative regulatory frameworks for better protecting not just humans, but also all other animal species, plants, and natural environments? Who represents those that cannot speak for themselves?

Issue Thirteen explores our historic relationship to legal rights and how different societies have rationalized, constructed, and enforced those boundaries. In this journey, we’ll see how conversations about rights go from the unthinkable to the established to the embedded. We will identify why rights are vital, and how we must continue to challenge what has rights and why. We’ll understand what is entailed in the definition of rights. We will look at the origins of different worldviews to understand how they shaped the rights of different civilizations and cultures. Last, we will turn our attention to new possibilities for conceiving of natural rights in the future. The hope is that by combining all of these into a single issue, we can have a new understanding of our current climate moment and planetary condition with the deteriorating health of species, land, forests, waterways, and air. Rights are a societal construct, which means they are specific to cultures and evolutionary. If rights are up to a society to determine, who determines what is worthy of our protection?

Why Rights Matter

Rights are our mechanism for protecting the entities we most value as a society. The granting of rights confers status and the ability for that status to be protected under law. In the influential book, Should Trees Have Standing? Toward Legal Rights for Natural Objects (1974), Christopher D. Stone argues that for a thing to have legally recognized worth and dignity in its own right, it must have three qualities: 

1. The thing, either directly or indirectly, can instigate the legal actions

2. The court must take injury to it into account if granting legal relief

3. The relief must go to the benefit of it directly

As Stone establishes, none of the natural objects, whether held in common or privately, has any of the three criteria of a rights-holder in traditional Western legal systems. “They have no standing in their own right; their unique damages do not count in determining outcome; and they are not the beneficiaries of awards.” In Canada and the United States (and likely many other countries), all fish, game, wildlife, shellfish and protected insects are property of the province, state, or nation until it is legally seized by someone through an activity such as legal hunting. As Chief Oren Lyons Jr., Faithkeeper of the Onondaga tribe of the Haudenosaunee (Iroquois) Nation rhetorically asked:

"What of the rights of the natural world? Where is the seat for the buffalo or the eagle? Who is representing them at this forum? Who is speaking for the water of the earth? Who is speaking for the trees and the forests? Who is speaking for the fish—for the whales, for the beavers, for our children?”

Chief Lyons recognizes that without the three qualities, the natural world is rightless. These rights are continually evolving based on these kinds of societal questions, values, and power shifts. As Alan Dershowitz points out, historically rights have emerged from experiencing the impact of societal wrongs—visible transgressions of what we believe to be ethical behaviour such as the Universal Declaration on Human Rights in the aftermath of WWII. It is not coincidental that the most sweeping piece of U.S. environmental legislation, The Endangered Species Act, came a decade after the publishing of Silent Spring which exposed the damage done by DDT to human, animal, plant, and land health. The tumultuous era of the 1960s where civil, gender, and environmental rights were all being radically reconsidered was due to the visible damage and disenfranchisement of blacks, women, and the environment. The transgressions were so visible that the Endangered Species Act passed with a vote in the House of Representative of 355 to 4 and without dissent in the Senate according to David R. Boyd in The Rights of Nature: A Legal Revolution That Could Save the World (2017)—a tally unfathomable in our current political environment.

While there have been significant pieces of regional, national, and international legislation drafted since the 1960s, largely humans are the only species with rights in Western societies. If the natural environment itself is rightless, says Stone, it remains outside of the bounds of the judicial system which issues protections and damages. Rights determine who and what matters. To date, humans and their institutions have been conferred with majority rights. The mere fact of having legal rights cannot inhibit their removal such as one’s right to vote, one’s property, or one’s life. However, infringement of such rights must go through legal procedures to do so, or will eventually be given judicial standing for a hearing to assess damages. This is why Stone believes we must give legal rights to forests, oceans, rivers, and other “natural objects,” and to the natural environment as a whole. Without their own sets of rights, each of these is subject to degradation without consequence or retribution for restoration.

Understanding the Structure of Rights

“SP 4449 and 3208 at Bray April 26 1981xrp” by Drew Jacksich (Shared by CC BY-SA 2.0)

When you hear rights groups protesting for primates, cetaceans, or elephants to be treated as people, what they are saying is that the law should recognize them as legal persons. According to Boyd, a “legal person” is an entity with a bundle of rights, not necessarily a human being. Corporations, ships, churches, and municipalities are all legally considered persons as a result of legal battles that successfully won the rights of their personhood. As Stone astutely recognizes, it will take the same imaginative and dedicated legal minds to urge the courts to confer personhood on natural objects that it took lawyers in 1886 to convince the U.S. Supreme Court that a railroad was a person under the 14th Amendment in Santa Clara County v. Southern Pacific Railroad Company.

As Stone argues, it is neither inevitable nor wise that natural objects are unable to seek redress on their own behalf. Stone believes there is an economic imperative for personifying the environment. “Every well-working legal-economic system should be so structured as to confront each of us with the full costs that our activities are imposing on society.” The full costs Stone is referring to is the economic damage wrought on our environment by others afforded such personhood. As demonstrated by the other non-humans classified with personhood, the very fact that a forest or stream cannot speak is not a reason to deny its personhood. As they do for most ordinary citizens, lawyers can speak for non-human persons if they may. This new bundle of rights for natural objects need not include every right we can imagine, or even the same body of right humans have. But without making the environment the beneficiary of a judgement, Stone says nature can be directly damaged by others with personhood with little to no legal repercussions, or indirectly “sold out” in a negotiation among private litigants who reach an agreement amongst themselves.

Origin of the Western Rights Conception

In reading all of this you might be wondering how we got to this point. How is it that many of the species and environments that we most value and need to preserve our life-support systems have no little to no legal recourse from harm? How did we invent the legal concept of personhood to include many man-made entities while excluding the majority of living things in this world? You will probably not be surprised to find that many of these answers have ties to themes explored in past issues of The Understory in how our worldview has been structured and therefore codified as law. 

“Great Chain of Being,” Diego de Valadés, Rhetorica Christiana, 1587

For Aristotle, animals were considered inferior creatures to humans because they lacked souls and reason (Boyd). In Politics he wrote:

"Plants exist for the sake of animals, and animals for the sake of man—domestic animals for his use of food, wild ones for food and other accessories of life, such as clothing and various tools. Since nature makes nothing purposeless or in vain, it is undeniably true that she has made all animals for the sake of man."

A conception of nature and other non-human species outside of their relationship with man was unjustifiable to the ancient Greeks. This hierarchy was further cemented by Plato in his work with Aristotle on the ladder of existence that ranked animals and plants. This is better known to us today in its Christian manifestation, the Great Chain of Being, that placed humans with the divine at the top of the ladder below God and angels, with seemingly inconsequential animals below, and those species incapable of movement in the bottom rungs of which man is given dominion (Boyd). 

As Stone astutely asks, “what is it within us that gives us this need not just to satisfy basic biological wants, but to extend our wills over things, to object-ify [sic] them, to make them ours, to manipulate them, to keep them at a psychic distance?” In other words, why could the ancient Greeks not conceive of a picture of natural forms outside of human needs and desires? 

Western legal philosophy is a direct descendant of the human-centric view of the planet. In “The Jurisprudence of Thomas Berry,” Peter D. Burdon writes that these Western legal systems are structured around the relationships between individuals, communities, and states rather than groupings beyond humans. This led to all rights being bestowed on human beings and left the other than human vulnerable to exploitation by humans according to Thomas Berry. Even recent “landmark” environmental declarations centre on human superiority such as the Stockholm Declaration (1972) which declared "Of all things in the world, people are the most precious,” and the Rio Declaration on Environment and Development (1992) which stated, "human being are at the centre of concerns for sustainable development” (Boyd).

Alternative Conceptions of Rights

Thankfully we have other historic and contemporary conceptions of humans as a part rather than separate from nature to guide a different understanding of natural rights. Even within the Christian church St. Francis of Assisi advocated for the equality of all creatures. Much like Indigenous cultures, St. Francis wrote about the sun, the Earth, the water, and the wind familiarly as his brother and sisters. Within Jainism, Hinduism, and Buddhism we find the concept of ahimsa, which has a reverence for all life and strives for non-injury to all living things. In the 10th century, a Sufi scholar in Iran wrote The Animals' Lawsuit Against Humanity, in which both domestic and wild animals unite and complain to the Spirit King about the violation of their rights by humankind (Boyd).

We are fortunate to have documentation of some of the myriad ways Indigenous people embraced the concept of an interconnected community of the human and non-human worlds. In “I Am I And the Environment: Inuit Hunting, Community, and Identity” (Journal of Indigenous Studies, 1992), Arlene Stairs and George Wenzel describes the Inuit conception of this relationship:

"Inuit emphasize that the core of the relationship between humans and animals is human recognition that an equity exists with animals as participating members of a shared environment...Through a life that unifies the land, the animals and the community past and present, the Inuk hunter acquires, reconstructs, and lives out a world-image which provides both security in his own identify [sic] and direction for his behaviour. He does not hunt only to eat, but also to structure his community, and ultimately to build a cognitive model of the world by which he is defined and directed. To be inummarik (the process of becoming a genuine person), is to be actively engaged in lifelong cycles of interaction with, and cognitive interpretation of, the human and the non-human environment."

As written about in Issue Seven, the lived experience of reciprocal relationships with non-human species in the Arctic becomes foundational to a more equitable concept of natural rights. The purpose and treatment of the law is quite different in Inuit culture than our statutory system of law. As Mike Bell writes in “Thomas Berry and an Earth Jurisprudence” (2003), Inuit elders view our contemporary system of justice as one based on “intimidation, fear, and shame.” In contrast to our justice system which leaves offenders alienated, traditional Inuit society was based on the integration of offenders into the community. The emphasis in Inuit jurisprudence is not punishment, but rather an attempt to change behaviour so the relationships and rights can be restored to human and non-human communities. 

Where We Go From Here

Laws are based on our understanding of the world. As it pertains to the natural world, that understanding has radically changed over the past fifty years. In 1978, a researcher named Donald Griffin invented the field of cognitive ethology by studying what others considered unfit—how animals think. Defying thinking going back to the ancient Greeks, Griffin found that animals are conscious even if they may think about different things and in different ways than humans (Boyd). In 2012, a group of scientists released the Cambridge Declaration of Consciousness stating “the weight of evidence indicates that humans are not unique in possessing the neurological substrates that generate consciousness." Richard Low, one of the authors of the declaration concluded, "The overwhelming tendency of all this scientific work, and its results, has been toward more consciousness. More species having it, and species having more of it than assumed” (Boyd). As discussed in Issue Twelve, our understanding of forest ecology has likewise exploded with both new and debunking knowledge. 

I’ve found great resonance in the writings of Thomas Berry on how we might evolve our legal institutions based on the modern understanding of interdependence and scientific understanding of non-human species and environments. Berry called his philosophy of governance and law “Earth Jurisprudence,” in which the earth, not human interests, is primary. This was not just a matter of desire for Berry, but rather a recognition that humans are born into an ordered and lawful Universe according to Mary Evelyn Tucker and John Grim, “Thomas Berry and the Rights of Nature” (2019). Instead of remaking those natural laws for our own human-centrism, we can have a benign presence on earth by embracing the “Earth Governance of the Planet.” Berry also found inspiration in the languages, laws, and governance of Indigenous peoples which are rooted in rather than in opposition to natural laws. 

Berry was clear that we need to fundamentally rethink our system of rights. Writing in Evening Thoughts (2006), Berry concluded that both living and nonliving components of the universe have three rights: “the right to be, the right to habitat or a place to be, and the right to fulfill its role in the ever-renewing processes of the Earth community.” Berry’s conception of rights decouples natural rights from human utility while at the same time deepening the connection between humans and all other living and nonliving things. Berry’s rights are their own form of reparation for centuries of accelerated disconnection from our relationships with other beings on the planet. Berry also nuances these rights so that they are relative and limited to each species. Writing in The Great Work (1999), 

“…every being has rights to be recognized and revered. Trees have tree rights, insects have insect rights, rivers have river rights, mountains have mountain rights. So too with the entire range of beings throughout the Universe.” 

Based on the conversation with Berry, Cormac Cullinan writes in Wild Law how we might reconceptualize our ideal of law based on an Earth-centered perspective with the level of relativism suggested by Berry:  

“reforming our governance systems will require us to entirely reconceptualise our idea of law from a biocentric or Earth-centered perspective. Reforming national legislation and entering into new international agreements will be insufficient unless these are done on the basis of a new understanding that the essential purpose of human governance systems should be to support people to play a mutually enhancing role within the community of life on earth.”

While this may sound novel for many of us in our own countries, we can look to other countries around the world who have implemented forms of Berry’s Earth Jurisprudence. The Global Alliance for the Rights of Nature maintains a timeline of the progress in implementing new systems of natural rights around the world, as well as an extensive list of articles and resources in English and Spanish such as The Universal Declaration of Rights of Mother Earth and Ecuador’s 2008 Constitutional Chapter on the Rights for Nature.

I would like to conclude by coming back to legal scholar Christopher D. Stone who writes: 

“Each time there is a movement to confer rights onto some new ‘entity,’ the proposal is bound to sound odd or frightening or laughable...until the rightless thing receives its rights, we cannot see it as anything but a thing for the use of ‘us’—those who are holding rights at the time.” 

For some period of time, the very idea of a certain thing or class being given a new set of rights seems unthinkable. Stone attributes this to being unwilling to confer rights on an object we need. The 1856 Dred Scott decision being a perfect case in point. The U.S. Supreme Court ruled that Blacks should be denied equal rights of citizenship "as a subordinate and inferior class of beings” to uphold the institution of slavery. Slaves were believed to be vital in order to maintain Southern agriculture, and so new rights were not conferred on the needed “object.” It is typically through a slow accommodation to the idea of changed rights that we can begin to rationally consider their merit, eventually overturning such logic. 

I believe we are at this exact juncture when it comes to the rights of nature. If I was to say to you that a plant, river, or tree was deserving of rights, you might chuckle (audibly or under your breath depending on the level of perceived absurdity) for it seems far-fetched and perhaps like an impossibility given our political and judicial systems at home. Our context for evaluating what is possible or feasible, often discussed as the Overton Window, is in constant flux. As the visible transgressions of our current system become more visible and acute in the form of mass species extinction, flooding, fires, and forced migration, we will be forced to reconcile what we are seeing and experiencing with our own ethics. And if Dershowitz is correct, and I believe that he is, the kind of systemic changes Thomas Berry envisioned are a lot closer than we think. When that time comes, even though it might be painful, we will have our moment to consider the kind of radical legal reforms needed to shift human rights in regards to planetary ones. We will all be better off when that day comes.

Conclusion

It is time that we reconcile rights with our radically changed understanding of the natural world and our place in it. Peter D. Burton asks us to consider “how can law, as an evolving social institution, shift to reflect the modern understanding that human beings are interconnected and dependent upon a comprehensive Earth Community?” For most Western societies, humans are the only species with rights and conferred with hierarchical priority over other beings. Without their own set of rights, our forests, oceans, rivers, other “natural objects,” and non-human species will continue to be degraded at the peril of compromising our most vital life support systems. Through myriad examples, we can envision more equitable concepts of natural rights. Thomas Berry’s philosophy of “Earth Jurisprudence” recognizes that humans are born into an ordered and lawful Universe. By using those natural laws as our guide, we can redesign our human governance systems to encourage a mutually enhancing role with the community of life on earth.

Go forth and make a difference in the week ahead. 

Adam

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In between issues I share my own reflections and those I have heard from readers. While the term community is often overused and thus abused, The Understory is a community of readers who value the comments of others. Please reply to this email or leave a comment on the website with any reflections you feel comfortable sharing 🙏.

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Why I Write The Understory

We have crossed the climate-change threshold from emerging to urgent, which demands a transformative response. The scale of the issue demands not only continuous focus but also the courage to take bold action. I've found that a persistence of climate consciousness improves resilience to the noise and distractions of daily life in service of a bigger (and most of the time invisible) long-term cause. 

The Understory is my way of organizing the natural and human-made curiosities that capture my attention. Within the words, research, and actions of others lies the inspiration for personal and organizational journeys. I hope that my work here will help to inform not just my persistent consciousness, but yours as well.

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