Do Trees Have Rights? Toward an Ecological Politics
“[I]t turns out that extending rights to other-than-human beings is much harder for most people to imagine than giving rights to a corporation. The reason is that we've all been indoctrinated in a particular theory of rights: classical liberalism." From John Halstead
“The world is full of persons (people if you prefer), but few of them are human." -- Graham Harvey, “An Animist Manifesto”
When I first encountered contemporary animism, it boggled my mind. Animism posits a world full of persons: human persons, yes, but also hedgehog persons, salmon persons, rock persons, mushroom persons...and yes, tree persons. Those whose circle of friends includes many animists, pagans, and polytheists may easily forget just how radical the idea of “tree persons" is.
Hedgehog persons? Salmon persons? Mushroom persons? Even rock persons? When I first heard this, it caused me to wonder what exactly a “person" is. To the animist, a person is a being that exists in relationship. Personhood, in this sense, is an ontological statement. But I didn't get that right away.
I'm a lawyer, so personhood for me is primarily a legal distinction. In the legal and political context, a person is a being that has rights. What would it mean, then, for a salmon, not to mention a rock, to have rights?
Personhood, in this legal context, is not an ontological distinction, but a cultural one. For that reason, it is more or less arbitrary. That's why human beings could recognize personhood, and hence rights, of fictional entities like corporations and limited liability companies, trusts and estates, sovereign political entities and even ships, while at the same time denying rights to women, people of color, and LGBT folk.
Now, you might think that, if we can give rights to corporations and states, which are legal fictions, then we should be able to give rights to living beings like trees and natural beings like rocks, which at least exist in the physical world and, in the case of trees, share DNA with humans. But it turns out that extending rights to other-than-human beings is much harder for most people to imagine than giving rights to a corporation. The reason is that we've all been indoctrinated in a particular theory of rights: classical liberalism.
In the essay, I want to highlight some of the problems with classical liberalism, and then propose an alternative, holistic theory of rights, one in which we can ground the rights of nature.
The Standing of Mineral King Valley
As strange as it may seem to grant rights to corporations and ships, but not trees, there is an internal logic to that choice. Corporations and ships are human creations, and they have something that rocks and trees lack--human agents. These human agents can, for example, bring lawsuits to enforce the rights of their “principal", whether it be a corporation or a ship.
Now it has been suggested that human beings might act as agents for other-than-human beings, just like they do for corporations. In 1972, the Sierra Club filed suit to prevent the development of a Walt Disney resort at Mineral King valley in the Sequoia National Forest. The case went to the U.S. Supreme Court.
The issue in Sierra Club v. Morton was whether the Sierra Club had “standing", that is, the right to sue. Although the majority technically decided that Sierra Club did not have standing, in a footnote, the court helpfully suggested that the Sierra Club could amend its complaint to allege that Sierra Club made regular camping trips to Mineral King Valley, and the problem of standing would be resolved. The Sierra Club did so and, ultimately Mineral King Valley was saved from the developers.
(It is significant that the fate of the valley effectively turned on how frequently the Sierra Club camped there. More on that in a bit.)
But the case of Sierra Club v. Morton is perhaps most notable for Justice Douglas' dissent 1, in which he made the case for recognizing the legal standing of
“valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life. The river, for example, is the living symbol of all the life it sustains or nourishes - fish, aquatic insects, water ouzels, otter, fisher, deer, elk, bear, and all other animals, including man, who are dependent on it or who enjoy it for its sight, its sound, or its life. The river as plaintiff speaks for the ecological unit of life that is part of it."2
As a result, Douglas believed the case should have been entitled “Mineral King Valley v. Morton". (Morton was Secretary of the Interior.)
But who would speak for the river and its inhabitants? Douglas argued that human beings could be spokespersons for the “inanimate" natural “objects", if they had a “meaningful relation" or “intimate relation" to the natural “object". In the case of the Mineral King Valley, the spokesperson might “hike it, fish it, hunt it, camp in it, frequent it, or visit it merely to sit in solitude and wonderment." Douglas concluded that such a relation would enable them the person to speak for “the pileated woodpecker as well as the coyote and bear, the lemmings as well as the trout in the streams."
Who Speaks for the Water Ouzel?
As much as I would have rejoiced to see legal standing granted to the Mineral King Valley or the Kaweah River which runs through the valley, Justice Douglas' reasoning gives me pause. By what right do human beings speak for a valley or river? I think Douglas was on the right track when he references the human being's “intimate relation" to the natural “object". But then he proceeded to speak merely in terms of the usefulness of the “object" to humans--hiking, fishing, hunting, enjoying the solitude and wonder it offers to humans. Consider the list of types of human beings that Douglas says might speak for a river: “a fisherman, a canoeist, a zoologist, or a logger". Of these, the zoologist at least might have a sense of the inherent worth of the valley--but the logger?!3
Douglas argued that the rivers and valleys themselves could have standing, just as ships and corporations can have standing. But there is an important distinction between ships and corporations, on the one hand, and rivers and valleys, on the other. Ships and corporations are human creations. They have no life or meaning apart from the human beings who constitute them (the crew in the case of ships). The same is not true of rivers and valleys. The latter have a life of their own. The claim to speak for them cannot be so readily justified. And the notion that a logger might speak for all the life that a valley sustains seems presumptuous at best, and dangerous in fact.
Consider also how Douglas described rivers etc. as “environmental objects" and even “inanimate objects". Because he was unable to see the river, or even the fish in the river, as subjects, rather than objects, he was unable to appreciate the inherent value of the river or the fish beyond their usefulness to human beings. Despite his reference to Aldo Leopold's land ethic at the end of his dissent, Douglas didn't quite manage to escape the anthropocentrism which gave rise to the lawsuit in the first place. While he tried to make a case for the rights of valleys and rivers, these remained “objects" in his view, the value of which was determined by human beings.
In the end, Douglas' approach would have led to more or less to the same place as the majority opinion, with rights of the valley being determined by how often a group of human beings camped there. And this is significant, because it's not really the interest of the valley that is being protected in such cases, but the interest of humans who want to use the valley.
A State of “Nature”
Even if rocks and trees had agents to speak for them, there is a deeper philosophical problem with granting them rights. Rocks and trees cannotrecognize the rights of others. Rights are a human convention. Corporations and states are made up of human beings, so they can recognize other humans' rights. The same is not true of other-than-human beings. If we decided to grant rights to trees, the trees would not be able to reciprocate the gesture. In short, trees cannot have rights, because trees cannot recognize rights.
What I've describe above is the social contract theory of rights, and it is grounded in the classical liberal political philosophy of John Locke. (Note: Classical liberalism should not be confused with the contemporary partisan label of “liberal", which is commonly contrasted with “conservative". Most conservative and liberal political discourse today take classical liberalism as the starting point.)
The classical liberal worldview is based on certain assumptions about the nature of human beings and society. In this view, the basic unit of existence is the individual. Individuals exist prior to their relationships. It is a kind of social atomism. According to Locke, society arises when individuals form a social contract wherein they recognize the rights of one another. This can happen implicitly, even unconsciously, or explicitly, through constitutions and laws.
In the classical liberal view of society, other human beings are perceived primarily as obstacles to the individual's freedom. Individuals enter into the social contract out of necessity, in order to escape the “state of nature", the war of all against all. Through the social contract, an individual agrees to recognize the rights of others in exchange for a corresponding agreement that others will recognize their rights. This recognition of the rights of others is given begrudgingly, as it were. This is, at its core, an adversarial, rather than a cooperative, view of society.
The purpose of government, in classical liberal view, then, is to enforce this social contract. It serves primarily a negative function--preventing individuals from infringing on the rights of others. The danger of government, in the classical liberal view, is that it will overstep its bounds and begin imposing obligations or duties on individuals.
In order to enter into a contact, a person has to be legally "competent". This means that they have to be an adult and of “sound mind". It also means, though it is usually implied, that they have to be a human being. In the classical liberal view, trees cannot have rights. Trees cannot contract with human beings, so trees cannot be part of the social contract. Human beings don't recognize the rights of trees, because trees cannot recognize the rights of human beings.
The Air that I Breathe
This is the view of rights that I was indoctrinated with, from childhood on. It is why I had so much trouble understanding animism and the animistic conception of personhood.
I was raised by Reaganites, in a religion (Mormonism) which viewed voting Democrat as tantamount to apostasy. I went to a conservative religious university (Brigham Young University), where I was spoon-fed the theories of Friedrich Hayek and Milton Friedman, who inspired the growth of neoliberalism in the late 20th century, the notion that all social problems should be solved through laissez-faire capitalism.
I then went on to law school. Though I didn't realize it at the time, the standard law school curriculum is deeply rooted in the classical liberal paradigm. Just look at the required substantive courses for first year law students: torts (injury to person or property), contacts, property, constitutional law, criminal law. This curriculum takes for granted the concepts of individual liberty, personal property, the right to contract, limited government, and the state's monopoly on use of force--the basic tenets of classical liberalism.
But even if I hadn't been raised in a conservative family and religion and then gone to law school, I would still have absorbed the classical liberal worldview from the American cultural milieu. It's pervasive--from the public school curriculum to NPR. It's the political air that we breathe today. And though we take it for granted, the classical liberal paradigm has very real consequences, both for the other-than-human beings who inhabit our shared world, as well as for many human beings who have been categorized as less than fully human at one time or another.
Alienable Rights
“Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense — nonsense upon stilts." -- Jeremy Bentham
The classical liberal understanding of rights is justified in terms of so-called “natural rights", a reference not to nature, but to what philosophers called the “state of nature", the imagined state of human beings prior to the advent of society.
Natural rights were originally said to derive from human beings' purported special relationship with the divine Creator--specifically Yahweh of Judeo-Christian scripture. This is significant, because Yahweh is god of divisions, and the nature of the deity determined the nature of the rights at issue. Unlike the dying-and-reviving vegetation gods he supplanted, Yahweh believed himself to be separate from nature. Creation, in first chapter of Genesis, is also described as a process of separation: light from dark, sky from sea, etc.
Similarly, the natural state of human beings, as describe in the book of Genesis, is also one of separation. Human beings enter the world as individuals, not as a community. We are then separated from God and “fall" into the natural world, which is not our real home. Human beings can overcome the separation from God and escape nature by entering into a covenant--a contract--with Yahweh. All of the basic elements of Locke's social contract theory can be found here: the special nature of human being, the separation of human beings from each other and from nature, and the formation of society through through voluntary contracts.
As society became secularized, so did the justification for rights. But belief in the supposedly unique nature of human beings remained among humanists. Human beings, we are told, are born with “unalienable rights". The “self-evident" character of these rights depends upon a belief in humankind's exceptionalism. As evolutionary biology has chipped away at the belief in our exceptionalism, the justification for natural rights been weakened. If human beings aren't special, just one species among millions, then where do our special rights come from?
Not only is natural rights theory weak philosophically, when we look at history, it's revealed to be a farce--a facade for the exercise of power. Humans who have had the power to do so have always withheld so-called “natural rights" from certain classes of human beings: usually including women, people of color, and LGBT folk.
Personhood and natural rights exist in a tautological relationship. We define a person as a being that has rights, and then we extend rights only to those whom we recognize as persons. As Christopher Stone explained in his 1972 law review article, “Should Trees Have Standing?", “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." As a result, people with power can grant rights to anyone or anything they want, and they can withhold rights from anyone or anything, as well. This is why human societies can, for example, extend rights to corporations, while denying rights to people of color.
When we ground rights in social contract theory, human beings will tend recognize the rights of only two classes of people: (1) those that appear like themselves and (2) those who have power. We recognize the rights of those that are like us, because it is logically consistent with our desire that our own rights be recognized. And we recognize the rights of those in power, in the hopes that they will recognize our own rights. Hence, we tend to be blind to the rights of those who are different and/or have little or no power. Trees, for example, are other-than-human and have no political power. So human beings have no reason to recognize the rights of trees--at least as long as rights are based in the social contract.
Life, Liberty, and the Pursuit of Happiness More Property
Historically, political rights in the West have been connected to property ownership. While Jefferson invoked the rights of “life, liberty, and the pursuit of happiness", Locke, who had inspired Jefferson, wrote about the rights to “life, liberty, and property". Four years before the Declaration of Independence was signed, Samuel Adams wrote, in “The Rights of the Colonists," “Among the natural rights of the Colonists are these: First, a right to life; Secondly, to liberty; Thirdly, to property." And shortly before the Declaration of Independence was signed, the Virginia Declaration of Rights recognized the rights to the “enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.”
Rights were first extended to property owners--nobles, and then landed gentry--and those property owners sought to extend those rights as a way of protecting their property. The rallying cry of the American Revolution, “No taxation without representation," was the cry of White male property owners--not Native Americans, slaves, women, or unlanded men. Given the close connection of rights and property in history, it should come as no surprise that, today, the freedom of the market has trumped all other freedoms, and the right to acquire property has trumped all other rights.
This is important for understanding why rights are withheld from some classes of people. If people are beings who have rights, and property rights are preeminent among rights, then people, it may be said, are beings who own property. Anything or anyone that is not a person, is therefore property, and anyone who does not own property, is not a person. Enslaved people, for example, were considered to be things that were owned, not people that owned things, so it made no sense for slaves to have rights. The same was true of women and children for a long time--if a woman was raped or if child was killed, it was the father or husband who had a legal right to sue, and the nature of the suit was damage to property, not injury to person.
Similarly, trees today are considered to be things that are owned, not persons who own things. Therefore, they cannot have rights. While property ownership was eventually extended to former slaves, it is difficult to imagine how a tree might ever be said to own property. As a result, it's unlikely rights will ever be extended to trees, so long as we are operating within the classical liberal view of rights.
Blue Rights, Negative Rights
In the 1970s, the Czech jurist, Karel Vasak, described three “generations" of rights--later called “blue," “red," and “green" rights. In this section, I'll discuss the first two--blue and red rights.
Blue rights are "negative" rights, the right to pursue one's own self-interest without interference from other people or from government--essentially, your right to be left alone. These include political rights like freedom of speech and the freedom to contract and to acquire (more) property.
Red rights refer to “positive" rights. Rather than the freedom from interference, they represent a person's entitlement to something, Red rights create the obligations of others to you and you to them. These include economic and social rights, like the right to employment, housing, health care, and social security.
Negative rights are often described as protecting “freedom from" something, whereas positive rights are described as protecting “freedom to" do something. This can be misleading, though. In one sense, negative rights may be thought of as embodying a person's “freedom from", i.e., freedom from interference by others. In another sense, negative rights may be thought of as a “freedoms to", i.e., freedom to speak, to exercise religion, and to acquire property--in the space left by the non-interference of other people and government. Similarly, positive rights can be thought of as freedoms to, i.e., freedom to work, obtain heath care, acquire an education, etc., but also as freedoms from, i.e., freedom from want, fear, ignorance, etc., which result from work, health care, education, and so on.
The classical liberal view lends itself to the recognition of negative rights, but not positive rights . Prior to the New Deal, most Americans understood rights primarily in negative terms. The role of government was to keep people from interfering with other people's person or property. Social Darwinism was the prevailing social theory and laissez-faire capitalism, which touted competition over cooperation, was the prevailing economic theory. Little wonder, then, that an adversarial theory of rights would dominate public discourse.
The United States' Bill of Rights is an example of negative rights. Though many Americans today speak of the First Amendment as securing their “freedom of speech", i.e., the freedom to speak, the First Amendment actually freedom from government abridging speech. This is a negative right, not a positive one. It is freedom from government interference which the First Amendment protects, and it is only the freedom to speak in the space created by the absence of government interference.
Red Right, Positive Rights
Red (positive) rights came to be more recognized through the efforts of FDR. In his 1941 State of the Union address, Roosevelt proposed that people everywhere should enjoy the freedom of speech and worship (blue rights), to which he added freedom from want and fear (red rights). Two years later, in his 1941 State of the Union address, he stated that the political rights identified in the Bill of Rights were “inadequate to assure us equality in the pursuit of happiness," because “true individual freedom cannot exist without economic security". Roosevelt identified several red rights, among them:
The right to job
The right to earn enough for adequate food, clothing, and recreation
The right of every family to a decent home;
The right to adequate medical care;
The right to adequate protection from the economic fears of old age, sickness, accident, and unemployment;
The right to a good education.
These are rights which would be incomprehensible for someone operating wholly within the context of a classical liberal paradigm. The reason is this--from the perspective of classical liberalism, you cannot recognize a red or positive right of one person without creating a corresponding obligation or duty on another person to fulfill that right, and when you create such an obligation, you violate the second person's blue or negative rights. Where there is a conflict between positive and negative rights, classical liberalism demands that the negative right trump the positive right. Classical liberalism favors negative rights because it takes for granted that free human beings exist prior to forming social relationships.
To use an example from recent news, according to the classical liberal, you cannot guarantee a LGBT's person's right to purchase a wedding cake at a particular establishment, without violating the wedding cake maker's right to be free from indirect participation in LGBT weddings. When conservatives today make this argument, unfortunately many progressives have difficulty articulate a refutation, because they too are starting with classical liberal assumptions.
To contemporary liberals and conservatives alike, the wedding cake case is simply a question of deciding whose rights to give preference to: the LGBT customer's right to be free from discrimination or the wedding cake maker's free exercise of his religion. Progressives tend to give preference to the freedom from discrimination over the freedom of religious expression, so they will usually favor the rights of the LGBT customer. But they don't really question the classical liberal assumptions behind the choice. When we begin with the classical liberal assumption that human beings exist prior to their relationships, then it is difficult to defense the choice of the LGBT customer's rights over the rights of the wedding cake maker in a principled way.
Rights of Individuals-in-Community
But that is not the only way to see the world. Rather than trying to defend positive (red) rights in the individualistic terms of the classical liberal paradigm, we can start with a more communitarian4 or holistic paradigm. Rather than seeing the individuals as existing prior to society, a holistic view sees society as constitutive of individuals.
We are born into community, and we work out our individual identity through our relationships with other human beings and with the more-than-human world. There's no such thing as “state of nature", in which human beings lived before forming social relationships. We born into relation and there is no way to opt-out. In short, individuals do not exist apart from their relationships.
Therefore, there is no such thing as “natural rights". Rights are social constructions, and they only can be created in society. And they always create corresponding obligations on other people. Rather than separating people, as the classical liberal imagines, rights bind people together, into communities. (This seems to be the view taken by Kadmus in his article here, entitled “Nature's Rights”.) In this view, a person who has liberty, but no community, can hardly be called a person.
A person only really has freedom if the material and social conditions are present for them to exercise that freedom. We cannot can really pursue happiness without food, education, work, health care, etc. What use is it to tell a person they are free to fish if they don't have a fishing pole or the knowledge of how to use it? As Adlai Stevenson succinctly put it, “A hungry man is not a free man." Or, as someone said in the documentary Whose Streets? (about the Ferguson rebellion), “If you can't read, you're a slave."
The goal of rights, in this perspective, is not primarily to protect the atomistic individual from other people, but to enable individuals to realize their potential together, through community. This does not mean that positive (red) rights will always trump negative (blue) rights, but if all other things are equal, then positive rights will be given greater weight, because negative rights are a function of positive rights.
This is not to say that community takes precedence over individuals. Red rights are still individual rights, not communal rights; but they are rights of individuals-in-community. In this holistic view, rights arise, not from the nature of the solitary individual, but from the nature of the individual in society. The ability of people to exercise their liberties depends on other people.
Recall that the classical liberal understanding of rights was rooted in the desire of capitalists to protect their property (and acquire more). But the capitalist's ability to acquire more property is only made possible through the labor of others (which is exploited). What's more, the capitalist's profits depend upon infrastructure, markets, and so on, which are built by other people's hands. While the capitalist may pay taxes, the taxes any single capitalist pays would be insufficient to create the infrastructure that capitalist needs. In short, they need other people.
As then-candidate for Senate, Elizabeth Warren, explained in 2011:
“There is nobody in this country who got rich on his own—nobody. You built a factory out there? Good for you. But I want to be clear. You moved your goods to market on the roads the rest of us paid for. You hired workers the rest of us paid to educate. You were safe in your factory because of police-forces and fire-forces that the rest of us paid for."
Let Them Eat Wedding Cake
Let's apply this perspective to the case of the wedding cake maker and the LGBT customer. Rather than starting with two separate individuals with competing rights claims, we start with two individuals who are part of a larger community. The wedding cake maker's demand for “freedom from interference" in the exercise of their religion makes less sense when looked at from this more holistic perspective. As much as the wedding cake maker might want to deny it, they are already in community with the LGBT customer, even before the customer walks through the door.
To begin with, even if the wedding cake maker does not have employees, they nevertheless did not build their business on their own. Their business was created within a community that provides roads for delivery of cake ingredients, police to maintain a safe marketplace, and so on. Maybe the LGBT customer was even one of the people that helped build those roads or a police officer patrolling the neighborhood of the wedding cake business.
What's more, the wedding cake maker's right to exercise their religion in public spaces5 is only possible in the context of a culture of tolerance which is created and maintained by the community. The wedding cake maker only has freedom to exercise their religion, if they are if they are free from fear of discrimination from others. It is hypocritical, therefore, for the cake maker to insist on his freedom from one type of discrimination, while insisting on the right to discriminate against others on other grounds. So, the rights of the LGBT customer should trump those of the wedding cake maker in that case.
Green Rights
“Environmental law is failing. And it will continue to fail because it comes from the same paradigm that created the problem." -- Mumta Ito
At this point, I would forgive the reader for having lost sight of tree persons that I started this essay with, but I intend now to return to them. Blue rights and red rights only apply to human beings, but Karel Vasak described three kinds of rights. So far, we have only talked about two. The third kind of rights is “green rights." Vasek's divisions corresponded roughly to the three words of the French motto: “liberty, equality, and fraternity." Green rights extend both blue and red rights to other-than-human beings and ecosystems, recognizing our “fraternity"--or “kinship" to use a non-patriarchal term--with the other-than-human inhabitants of our world.
The justification for extending rights to other-than-human beings is consistent with the logic of red rights, but simply recognizes that the community of which we are a part includes the more-than-human world--in fact, there's much more of them than there are of us: hedgehog persons, salmon persons, rock persons, mushroom persons, tree persons and so on. To borrow from Aldo Leopold's description of the “land ethic", green rights “simply enlarge the boundaries of the community to include soils, waters, plants, and animals, or collectively: the land."
Recall that red rights were justified by pointing out that the capitalist's freedom to acquire more property is only made possible through the (exploited) labor of others. And their business relies upon public goods for which they did not pay, like roads. But the capitalist's freedom is also only made possible through the (even more exploited) natural world: air, water, soil, and the other-than-human beings who inhabit it. The roads upon which the capitalist relies run through land that used to be (and may still be) occupied by streams and prairies and inhabited by myriad living beings. And both the roads and the goods which the business produces are made from materials which come from the natural world.
Mumta It, founder of the NGO, Nature's Rights, observes that the classical liberal political paradigm is based on a 17th century scientific paradigm--not surprising since Locke lived in the 17th century--which she describes as:
mechanistic (i.e., viewing the world as made up of separate, unconnected objects interacting in a predicable way);
anthropocentric (i.e., viewing the world as existing solely for the use of human beings - this is where ideas about 'natural resources' and 'natural capital' derive, basing nature's value on its utility to humanity rather than on its intrinsic value); and
adversarial (competitive/retributive model, where one party wins at the expense of another)
In contrast, the holistic perspective is an ecological view of rights. Unlike more reductive forms of biology, ecology seeks to understand organisms in context of their relationships. The environment is not a backdrop to individual action, but a web of relations that constitute the individual. Therefore, an ecological view of rights is one which views worlds as interconnected, biocentric, and cooperative, rather than mechanistic, anthropocentic, and adversarial.
In the classical liberal view, based on social contract theory, people only have a motivation to recognize the rights of other who or like them (or those who have greater power than them). In the holistic view, based on ecology, people would recognize the rights of those with whom they are in relationship. And since we are ultimately in relationship with everyone, people would recognize the rights of every person and every thing--in fact, every thing would be recognized as a person, which is the foundation of an animistic worldview.
There are only a few examples of green rights in existence, but there appears to be a trend (albeit limited in scope so far) toward recognizing the rights of nature:
In 2008, the Ecuadorian constitution, recognized the right of nature (or "Pacha Mama") to "integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes." Among other obligations, the constitution required the state to apply preventive and restrictive measures on activities that might lead to the extinction of species, the destruction of ecosystems and the permanent alteration of natural cycles.
In 2010, Bolivia passed the “Law of the Rights of Mother Earth” (Ley de Derechos de la Madre Tierra), which recognizes Mother Earth as a “collective interest" which includes all its component communities, human and other-than. The law recognizes the rights of Mother Earth to life, diversity of life, equilibrium, clean water, clean air, pollution-free life, and restoration where living systems have been affected by human activities. The law also imposes duties on the state and on the people to realize these rights.
In 2016, a court in Colombia recognized the rights of the Atrato River basin. In negotiations with an indigenous Maori tribe of New Zealand, the government recognized the Te Urewera National Park and the Whanganui River as legal persons in 2014 and 2017, respectively. This was followed by the Indian court recognizing the personhood of the Ganges and Yamuna rivers in 2017. Several municipalities in the United States have also recognized the rights of nature, beginning with Tamaqua Borough, in Schuylkill County, Pennsylvania in 2006.
Nestled Rights
Blue rights, red rights, and green rights are not equivalent and competing kinds of rights. Nor are they exactly hierarchical. Red (positive) rights, in a sense, encompass blue (negative) rights, because the latter are only possible in the context of the former, just as the individual only exists in the context of society.
Similarly, blue and red rights are encompassed within green rights, because both individuals and human communities only exist within the context the natural world--the former could not exist without the latter. To look at it another way, individual human beings cannot harm their human community without harming themselves, and likewise, a human community cannot harm the more-than-human community without also harming itself.
We can think of blue, red, and green rights as nestled within each other, as depicted in the image on the right in diagram below.
Nestled Rights
Mumta Ito has written about two model of sustainability and the relationship between nature, human society, and the economy using a similar diagram:
“The diagram on the left is the usual model for sustainability. The problem with this model is that it assumes that each circle can exist independently of the others. In reality the only one that can exist without the others - is nature.
The diagram on the right is therefore more accurate. It shows a natural hierarchy of systems because without nature there's no people and without people there's no economy.
This then leads to a natural hierarchy of rights with nature's rights as our most fundamental rights because our life depends on it, then human rights as a subsystem of nature's rights - and then property or corporate rights as a subsystem of human rights.
In the model on the right, the rights are in service of each other rather than in conflict - working synergistically to protect the integrity of the whole. In this model human activities have to be beneficial for humans as well as nature - or its not viable in the long run."
Therefore, rather than attempting to balancing the interests of individual humans, human society, and the environment, as if they were equal and competing, the holistic model of rights acknowledges that blue rights are derivative of red rights and that both blue and red rights are derivative of green rights. This does not mean that green rights will trump blue rights in every instance, but it would mean that, all other things being equal--a caveat which conceals a great deal of nuance--green rights would be given greater weight than red or blue rights.
“The Rights of Nature”
The holistic view of rights, in contrast to classical liberalism, provides a basis for recognizing the rights of nature. To say that other-than-human beings should have rights, though, is not to say that no one should be allowed to cut down a tree. Human beings have rights, but they can be incarcerated and even executed under the law. So rights can recognized, and yet withdrawn under some circumstances.
Nor does it say what kind of rights would be extended to the more-than-human world. Not every right holder holds all rights. Corporations have the right to contract, but they cannot plead the Fifth. Children have certain rights, but not the right to vote.
Nor does it say anything about the weight to be given those rights in any given case. U.S. law recognizes that humans have a right to life and also a right to a driver's license (at least adults). But we can be legally deprived of the latter much easier than the former.
Answering these questions is beyond the scope of this essay. But, following Christopher Stone, I would propose that an acknowledgement of the rights of nature would, at a minimum, mean that other-than-human beings have legal standing in human courts, beyond any public or private human interest in them. So, in the case of Mineral King Valley, discussed above, the caption of the lawsuit would indeed, as Justice Douglas proposed, read “Mineral King Valley v. Morton".
Merely recognizing such a thing as the “rights of nature" would be profound. In The Wizard and the Prophet, Charles Mann writes about how, in 1948, with the publication of Road to Survival, William Vogt introduced the world to the idea of “the environment", not just as a particular place, but as a global totality: “Defining a word on a new sense seems academic and abstract," writes Mann, but its consequences are not. Until something has a name, it can't be discussed or acted upon it. ... Without 'the environment,' there would be no environmental movement."
The same, it could be hoped, would be true of the “rights of nature". As Christopher Stone observed,
“Introducing the notion of something having a 'right' (simply speaking that way), brings into the legal system a flexibility and open-endedness ... [T]he vocabulary and expressions that are available to us influence and even steer our thought. ...[J]udges who could unabashedley refer to the 'legal rights of the environment' would be encouraged to develop a viable body of law--in part simply through the availability and force of the expression. Besides, such a manner of speaking by courts would contribute to popular notions, and a society that spoke of the 'legal rights of the environment' would be inclined to legislate for environment-protecting rules ..."
It is not impossible that general acceptance of the phrase, “the rights of nature", could trigger a paradigm shift in Western consciousness, a shift from viewing nature instrumentally--as having value only for humans--to viewing nature as inherently valuable--as having value in its own right. And that could have profound consequences for human behavior and our impact on the more-than-human world.
Animistic Afterthought
But who would speak for the rights of nature in human courts? To answer this, I would return to Justice Douglas' idea that a spokesperson for the rights of other-than-human beings should have a “intimate relation" with those beings. And who better to fill that function than those human beings who already recognize the personhood of those beings--animists!
Who better to speak for nature in human courts that those humans who not only see, but cherish, their own relationships with the more-than human world and the beings who inhabit it? Perhaps, rather than the Sierra Club or a regulatory agency that has been co-opted by industry, nature would be better represented by a kind of legally-recognized priesthood. I leave it to people more imaginative than me to work out what such a world might look like.
Notes
1 Douglas' dissent was influenced by a law review article published earlier that year by Christopher Stone, cleverly titled, “Should Trees Have Standing?-Toward Legal Rights for Natural Objects”.
2 It's worth noting that Douglas did not propose granting rights to the fish, aquatic insects, water ouzels, etc., but to a “living symbol" of the ecosystem which included them.
3 There are governmental bodies that are tasked with acting as nature's guardians, but their history inspires even more skepticism about the ability of humans to speak for nature. Justice Douglas himself observed how regulatory agencies come to be captured by the industries they are supposed to regulate. For example, “The Forest Service — one of the federal agencies behind the scheme to despoil Mineral King — has been notorious for its alignment with lumber companies." Ironic, then, that he would propose a logger as a spokesperson for Mineral King.
4 Unfortunately, the word “communitarianism" has acquired the status of an epithet in contemporary American culture, so deeply have we drunk from the well of classical liberalism. This is true of many words which share common roots with the word “community", like “commune", “communal", “communalism", and of course, “communism".
5 While the theoretical wedding cake business is on “private" property, it is open to the public, and therefore a public space, to my mind.
John Halstead
John Halstead was the principal facilitator of “A Pagan Community Statement on the Environment,” which represents the most successful effort to date to harmonize the diverse voices of the Pagan community in defense of the Earth. He is also one of the founding members of 350 Indiana, which works to organize resistance to the fossil fuel industry. John is a Shaper of the fledgling Earthseed community. He is also the editor of the anthology, Godless Paganism: Voices of Non-Theistic Pagans. John writes about Paganism, activism, and life at AllergicPagan.com, Huffington Post, and here at Gods & Radicals.
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