(Summary)Aligning Law and Life: An Inquiry into the Rights of Nature

( Extended version of article here )

As the climate crisis movement gains momentum, you will likely hear about a promising emergent legal concept called the Rights of Nature. In its essence, these rights are about human beings extending legal rights to other forms of biological life on Earth.

Humans listen and translate for all life, proclaiming an end to the silence of the victims of ecological destruction. A new generation of Earth guardians speaks for nature in human tongue.

The Rights of Nature and Earth Jurisprudence

To understand the brimming potential of the nascent Rights of Nature (RoN) movement, I went on a journey and asked the following questions:

  • Why give “rights” to nature? And how does this compare to our human rights?
  • How would the laws of an ecological civilization align human law with all of life?
  • How could the Rights of Nature be adopted on a global scale?
  • And, what else is possible — what are the mad creative ideas we can employ to spread the Rights of Nature?

I’ve tried to summarize my findings and the various pathways each successive question brought me on. I do this with the hope of sparking similar excitement and possibility in the reader, and to find allies and collaborators asking similar questions. I will move us through different thought spaces and explain how things like learning journeys, animism, Wild Law, philosophy and global guardianships are all part of a holistic understanding of the wider RoN movement.

(Note: This is the short-form version of this article; if you are seeking the extended version, take a look here)

Human Law

Anthropocentric law has evolved to protect a growing array of inanimate rights holders. Trusts, corporations, joint ventures, municipalities, universities, railroads, churches, public lands — all are regularly represented in court by guardians and trustees who speak on behalf of their interests. However, non-human life is rarely included in this category of inanimate rights holders; the Earth’s ecosystems, flora and fauna are surprisingly silent in the realm of Human Law. In general, most non-human life is mere legal “property” to be used, sold and processed.

We shouldn’t take any set of laws as being final and immutable; we must remember that law is always up for debate and re-imagining. Each successive extension of rights conferred onto a new entity has been nearly unthinkable in its time; at first a proposed extension of rights sounds strange, laughable, implausible.

While nature was once thought of as a passive backdrop to human affairs and exploitation, it is now increasingly considered a living entity worthy of moral consideration. And so it’s time for our laws to catch up with our emerging understanding of our interconnections with and responsibilities to the beyond-human world.

Yes, law is imperfect. It can be difficult to enforce, easy to manipulate, subject to interpretation, and case-dependent. But law defines an aspiration of a culture. Law is a force that shapes our inner and outer worlds and reflects society’s self-concept. At its best, law formalizes cultural norms that hold us to our moral ideals.

So: what are we aspiring to today?

The Law of a Truly Ecological Civilization

We now look to Earth Jurisprudence, a branch of philosophy of law. The term was first coined by the cultural historian and priest Thomas Berry in 2001 and refers to Earth as the primary source of law.

Our Earth uniquely sustains life through a complex system of living processes that act as a self-regulating organism. These operate under patterns such as self-organization, autopoiesis, reciprocity, and regeneration. All species are inextricably subject to and woven into larger biological and physical flows of energy and matter. There’s much in this reality that I wish for humans to come to recognize and emulate.

Since human society and its material foundations emerges from the biosphere, it ought to be co-regenerative with it. For if humans don’t tend to the integrity of the substrate of their own survival, they’re engaging in a suicidal process.

The system of law and design of an ecological civilization would be Earth Centric versus Anthropocentric. It would help stimulate and support human behaviors that are biophysically compatible with Nature. It would be based on a sound ecological understanding of how living systems function. Entwined and intermingled, every single element in the web of life is part of the whole and therefore essential for the survival of the whole.

What if human laws and ethics supposed that humans and nature were one?

“Thinking like a mountain“ — To have an appreciation for the profound interconnectedness of all the elements in Earth’s ecosystems

Instrumental Rights vs. Inherent Rights

To fully grasp what the Rights of Nature (RoN) is proposing, it is essential to understand the key difference between instrumental rights and inherent rights.

We do not grant a baby rights because a baby is useful to us as a joyful object to play with or as an extra set of hands. We grant a baby its rights because it is a human being; rights originate where existence originates.

If the self is inherently valuable, and if there is a clear continuity between the self and nature, then aspects of nature are arguably of inherent value.

In our current system of law, we can go to court and claim nature’s utility or aesthetic benefit for human endeavors (such as a polluted lake that damages human health), but natural entities cannot claim their own rights (the lake’s right not to be polluted). The International Whaling Convention of 1946, where nations agreed on the killing rate and conditions to provide for the “proper conservation of whale stocks’’, is distinct from someone being legally permitted to speak as a legal guardian for the whales themselves on the issue of how they view whaling.

The Rights of Nature are therefore the mechanism through which living entities can be granted their own inherent rights in a court of law, regardless of any instrumental utility for human needs.

Wild Laws and the Rights of Nature

Today’s most prevalent way of applying the inherent rights of nature can be seen in the global movement for the Rights of Nature.

Countries including Bolivia, Canada, Uganda, Colombia and Bangladesh have begun adopting the Rights of Nature in their constitutions. For the curious, here’s a complete list. These rights consider nature and other forms of life as legal persons, granting rights akin human rights. For example, in New Zealand, two laws in 2017 recognized Te Awa Tupua, the Whanganui River, and the forest of Te Urewera, as legal persons. They were given all the rights, powers, duties, and liabilities to own property, incur debts, petition the courts and receive reparations for damages. This was the culmination of two centuries of struggle by the Whanganui people and eight years of intensive negotiation.

Enforcement of these laws is still imperfect and irregular, but I invite you to picture them as something that defines our shared human aspiration and a new direction of ethics. The creation of new norms, social memes and precedents in court can lead to watershed moments of societal transformation.

In 2019, the first law recognizing the legal rights of a plant species was passed with the community of Ojibwe formally recognizing Manoomin, wild rice, as a legal rights holder. The Rights of Manoomin include “the right to clean water and freshwater habitat, the right to an environment free from industrial pollution, and the right to be free from patenting”.

And in Ecuador, a decade after their enshrinement, the RoN repeatedly make an appearance in national discourse. Six of the thirteen RoN applications were initiated by the State and all were successful. No miracles happen overnight and the Ecuadorian government is still pushing for the interests of extractivist multinationals, however, no politician can discuss development (and particularly mining and oil) without also talking about the RoN. In some cases, the Environmental Ministry unilaterally applied sanctions and fines for actions that violated the RoN, such as the removal of environmental licenses for economic development projects like the Secoya palm plantation and Macas road building.

Despite facing initial challenges such as the Ecuadorian judges’ lack of knowledge that such rights even existed in law, the same judges are now beginning to apply nature’s rights to cases that were not even initially about RoN — further evidence that new norms are emerging in the judicial system.

The Dream: A System of Global Guardianships

To wrap up, I’d like to propose a few outlandish ideas.

What if there were a system of Global Guardianships for Nature? We could set up a cluster of expert and institutionally freestanding legal Guardians, advocating on behalf of critical global commons areas like rainforest microregions and ocean corals. They could be empowered to act as special intervenor counsels for their ‘victim’ and have standing to initiate legal and diplomatic action on the ecosystem’s behalf

Imagine the energy of thousands of youth around the world stepping up and becoming self-professed “Global Guardians” for more-than human life. Even if they lose cases in court, I am certain that the sweeping coverage would generate such strong public opinion that governments and the private sector will have to become increasingly accountable and adapt accordingly.

A Universal Declaration for the Rights of Nature

I believe that a Universal Declaration for the Rights of Nature could well be an inspiring next iteration of our evolution of Earth ethics. The Declaration would recognise in law, enforce and implement the fundamental Rights of Nature. It would be approved by the U.N. General Assembly, and be applied in International Rights of Nature courts.

Creating the Conditions for the Rights of Nature

What excites me the most about the reformulation and extension of human laws to other forms of life is that it asks us to acknowledge that other forms of life are legitimate and real beings also deserving of rights. A parallel shift in the dominant paradigm must accompany any RoN movement.

We must become intimate again with nature and the way that we too are nature. We must allow a new human law, written of the Earth, to emerge, one that invites us to participate actively in the poetic and moral elevation of the living world. As such, the Earth Jurisprudence movement is nested within and supported by a much broader change in perspective that accepts that humanity is not at the centre of everything.

To become Earth Centric versus Anthropocentric humans, we need to become wild again, plunged into settings where the more than rational mind is engaged (dare I say, the animal mind…), sensitising ourselves to and understanding what a co-regenerative system of human law and ethics could look like. Culture determines law just as much as law determines culture.

This cultural transformation could encompass anything from place-based ecological understanding and pedagogy to bio-regionalism, permaculture, regenerative land practices and agriculture, bio-poetry, becoming animist, wilderness trainings, and so many other modes of reconnection that inspire people to take on essential roles as bridges and translators for the living Earth.

I believe that what is really being called for at this time is a spiritual response to our environmental crisis, enshrined in law and ethics. Only if we can approach our planetary responsibility in a state of reverence, compassion, harmony and service, will we be granted the ultimate gift — the permission of living, breathing and loving atop this wondrous, precious earth of such shuddering beauty.

To be continued…

(It is not in the scope of this article to describe in detail all the inspiring actors who have greatly helped to disseminate and strengthen Earth Jurisprudence and RoN around the world. Please find a list of further references and readings in the Appendix of the longer version of this article, and for a timeline of key events here’s your resource)

Learning Journeys | Ecological Literacy | Author, poet, wilderness guide | Investor | Co-founder Atlas Unbound, Ground Effect (alexafirmenich.com)