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

Introduction

In Lapland, we find an impassioned girl speaking in national court, acting as a legal guardian for the reindeer herds who once migrated with her ancestors across the icy tundra. Today, the reindeer no longer have a place to call home and are dying by the thousands, their habitat razed in the extraction of iron ore and uranium.

In Indonesia, a fisherman becomes a new national hero. His ageing face plastered on billboards speaks to the tenacity of his coalition that’s pushing a criminal lawsuit on behalf of ocean coral ecosystems turning to lifeless stone.

In California, the united Salmon Nation advocates for salmon’s rights to spawn and swim unobstructed from the oceans to the lakes and back again.

As the climate crisis movement gains momentum, you will likely hear cases such as these, touching upon 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.

The voices of nature speak loud and clear. Humans listen and translate for all life, proclaiming an end to the silence of the victims of ecological destruction. Songs of bald eagles and lynxes and orcas and old growth forests tumble from the mountains and flood into International Rights of Nature courts.

A new generation of Earth guardians speak for nature in human tongue.

The Rights of Nature and Earth Jurisprudence

  • 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 long-form version of this article; if you are seeking the short version before delving in, take a look here)

Human Law

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. Think back to when our forebears suffered at the harm of diminished human rights; they had to fight to assert their own rights and as a consequence, bestowed them unto future generations.

Before 1948, there was no such thing as The Universal Declaration of Human Rights. Similarly, there was a time before child labour laws, women’s voting rights, and a host of other cultural evolutions later enshrined in law. As for the environment, indeed we’ve seen a branch of Environmental Law come into existence, often used as a punitive tool of environmental accountability in cases of extreme harm.

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

I believe that the Earth can inspire laws but cannot be taken in its totality as the template for the creation of all human laws. If you’ve watched any nature documentary, you’ll know the prevalence of predation, inequality, infanticide, and all manner of behaviours that occur in the plant and animal kingdom that, should we anthropomorphise them, would be harmful to human society. Consider how rapidly Darwinian thought mutated into social Darwinism, perpetuating slavery and colonialism, and birthing systematic eugenics and similar thought patterns that persist into the present. Every law at micro or macro scale is context specific and must be adapted accordingly.

And yet I don’t want to discard Earth inspiration as the basis for a new series of laws and corresponding ethics. 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.

Meanwhile, present-day human law often acts in destructive ways that seem to be oblivious to these processes of life. We treat non-human life as if it had no relation to human life, as if human life were not sprung from it. Permissive of ecological desecration, much to the detriment of human health, legal entities are complicit in the repealing of critical environmental-protection regulations (for example the loosening and eliminating of over 90 environmental rules and regulations on climate change, clean air, pollution, coal mining and endangered species protections under the current administration).

Human law is therefore embarrassingly inadequate at representing the actuality of the vivid, teeming world in which we all live. For Human Law to become a sufficient foundation for addressing our present challenges, it would account for billions of years of emergence and evolution that brought us to this point and will take us further into the unknown reaches of life.

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? Could we then imagine extending rights from the part of nature that is us to the other parts of nature?

“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

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 his seminal 1970s essay “Should Trees Have Standing?”, Christopher Stone catalyzed global discussions on how we could begin conceptualizing the Rights of Nature. He gives an example of the difference between Situation A, where a master can go to court and collect damages from someone who has beaten his slave, or Situation B, where the slave himself can institute proceedings on his own behalf. The critical emphasis is that the injured entity (such as a slave, an ecosystem or a species) must be allowed to have its own independent standing to appear in court, and that restitution for injury goes directly back to it.

In our current system of law, nature is our slave.

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.

(Here, I ask an open question: What happens when two humans disagree on their perceived interpretation of what is in the whales’ best interest? How do we legally determine who is “right”, who gets to speak on behalf of another living entity, who claims injury, whose interpretation may be correct? This feels riddled with subjectivity and yet I am certain that we can find common ground and processes for determining the answers to these questions)

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

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.

A few patterns persist across the multiple ways that RoN have been elaborated according to a particular place’s context, nuance and social environment. By and large, these can be summed up by Thomas Berry’s statement that every member of the Earth community has three main rights: the right to be, the right to habitat, and the right to fulfil its role in the ever-renewing processes of the Earth community. The right to be, because of the aforementioned intrinsic rights of existence; the right to habitat, because everyone has the right to a home; and the right to fulfil its role, because in an embedded world, the healthy functioning of the system as a whole depends upon each player, no matter how seemingly small the part.

Aldo Leopold’s 1949 masterpiece, A Sand County Almanac, has a brilliant final hoorah entitled the “Land Ethic.” In it, he sketches out the foundations of a newfound human ethical relationship to land. Leopold writes, “A thing is right when it tends to preserve the integrity, stability, and beauty of the biotic community. It is wrong when it tends otherwise.”

In an interconnected, self-organizing universe, it seems wise to create RoN laws that preserve the “integrity and stability” of larger biotic systems. The word ‘stability’ here really points to the concept of meta-stability over a significant spatial temporal scale; disequilibrium in natural systems is desirable as a catalyst for evolution and resilience. Despite the fact that new species are constantly emerging and disappearing, one also shouldn’t argue that today’s Sixth Mass Extinction and tremendous specie dieoff is in the interest of large-scale stable planetary health. “Beauty” is subjective and we can happily jam on that too.

We can see how Leopold’s concept of integrity and stability has been applied today in many RoN laws. Ecuador’s constitution acknowledges that Pachamama (nature) in all its forms has the right to “exist, persist, maintain and regenerate” its vital cycles. And in response to a new sewage sludge deposit facility in Pennsylvania, the borough of Tamaqua passed the world’s first RoN ordinance in 2006. Here, nature is framed as having the rights to “exist and flourish” (ie. fulfil its role). Importantly, the right to flourish switches the emphasis from preventing permanent damage to ensuring some level of well-being for an ecosystem. The US ordinances are the strongest in this respect, limiting the rights of corporations and subordinating them to the RoN.

Case Studies: Rights of Nature in Practice

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. RoN have been invoked in politicized and controversial cases and in 2014, the Ministry won two lawsuits against individuals who killed a condor and a jaguar, both endangered species.

Thus, 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.

Who’s Behind This All?

The Dream: A System of Global Guardianships

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

Think back to the hypothetical scenarios at the beginning of this piece. 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.

(If you like this idea, check out the 2016 Dutch Design Week experiment with guardians for 7000 Beech trees. Amongst other things, the trees’ guardians vowed to the trees that they would “search for good soil for you, with a residence permit of at least 250 years”)

We could also set up Global Guardians for Sacred Natural Sites (SNS). This has already begun in Africa, where the recognition of a network of SNS in Venda in 2010 led the South African High Court granting an interdict to stop tourism development at a sacred waterfall. Youth around the world could reconnect to their ancestral lands, harnessing tools of eco-cultural community mapping to establishing SNS as legal entities.

Or perhaps Embassies for different global commons areas, akin to the nascent project of the Embassy for the North Sea, which researches how non-humans, from phytoplankton to ship wrecks and cod fish can become full-fledged members of society.

A Universal Declaration for the Rights of Nature

Creating the Conditions for the Rights of Nature

Our relationship to nature, and the nature that is us, should be governed by the ethical concerns that we extend to ourselves. Without human beings valuing the rivers, soil, forests, and animals for their intrinsic worth (beyond any concept of human ascribed utility), no climate change or sustainability movement could endure the test of time.

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.

As the father of natural farming, Fukuoka once said that the healing of the land and the purification of the human spirit is one and the same process. We are ethically incomplete unless we acknowledge and are connected to all that which provides for us.

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…

PS. This research drew heavily on the pioneering work and research of the following authors and institutions, and I thank them immensely.

  • The Earth Law Center
  • The Gaia Foundation
  • Exploring Wild Law: The Philosophy of Earth Jurisprudence — Burdon, Peter
  • Should Trees Have Standing?: Law, Morality, and the Environment — Stone, Christopher D.
  • Thinking Like a Planet: The Land Ethic and the Earth Ethic — Callicott, J. Baird
  • Beyond the Land Ethic: More Essays in Environmental Philosophy (SUNY series in Philosophy and Biology) — Callicott, J. Baird
  • A Sand County Almanac — Aldo Leopold
  • In Defense of the Land Ethic: Essays in Environmental Philosophy (SUNY series in Philosophy and Biology) — Callicott, J. Baird
  • The Embassy of the North Sea — From the Parliament of Things: a speculative research into the emancipation of animals, plants and things
  • Non Human Rights Project

Reading Group material that you can do solo or with a group —
https://naturerightsreadinggroup.hotglue.me/start/

PPS. Fundamental philosophical questions remain... If rights originate where existence originates (as dictated by Human Rights for example), a logical next question would be how to define existence itself. Is a cancer cell a living being, and if so, does it have a “right” to kill its host? Or does the host have its right to flourish and survive? How do we define the rights bearer in such situations, scaling for different sizes of organismic complexity and intelligence? How do we consider individual rights and well-being alongside collective rights and well-being? In a potential case of conflict, which would take precedence?

Other great questions are raised in this article by Astra Taylor — Propounding the rights of nature raises countless philosophical and practical riddles. How do we define a being? Should invasive species have equal protections? What about the rights of prey against predators? Where does a watershed end if all ecosystems are interconnected? Where does a forest begin and end? How do human advocates know what is best for the rights-holders they aim to help?

And from Robert Macfarlane — “ To many lawyers and philosophers, however, the assigning of legal personhood to a more than human entity is a profound category error, which can create more problems than it solves. Critics observe that corporations also have standing as legal persons; is it desirable that the Niger Delta might exist in legal affinity with Shell? The plaintiff power of personhood also becomes a liability risk. If a river may bring an action against a factory for polluting it, may a developer in turn sue that river when flood water damages the housing stock? Legal recourses — in tort, criminal and public law — already exist to protect nature, and may be thought more robust than rights-based moves, which are often subject to swift challenge or reversal.”

He continues, “Anthropomorphism is also awkwardly central to the natural rights movement. Lakes and forests must undergo transformation into “legal persons”, rather than being recognised as “legal lakes” or “legal forests”. Because a river is unable to stand up in court, a human proxy must inevitably bring an action, determine optimal outcome, and do the river’s talking for it. Or as Thomas Berry puts it in The Great Work, “Trees have tree rights, insects have insect rights, rivers have river rights, and mountains have mountain rights”.

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