If
Nature Had Rights What would people need to give up? by Cormac
Cullinan
Published in the January/February 2008 issue of Orion
magazine
Read an extract from the author's book Wild Law.
IT WAS
THE SUDDEN RUSH of the goats' bodies against the side of the boma that woke him.
Picking up a spear and stick, the Kenyan farmer slipped out into the warm night
and crept toward the pen. All he could see was the spotted, sloping hindquarters
of the animal trying to force itself between the poles to get at the goats-but
it was enough. He drove his spear deep into the hyena.
The elders who
gathered under the meeting tree to deliberate on the matter were clearly unhappy
with the farmer's explanation. A man appointed by the traditional court to
represent the interests of the hyena had testified that his careful examination
of the body had revealed that the deceased was a female who was still suckling
pups. He argued that given the prevailing drought and the hyena's need to
nourish her young, her behavior in attempting to scavenge food from human
settlements was reasonable and that it was wrong to have killed her. The elders
then cross-examined the farmer carefully. Did he appreciate, they asked, that
such killings were contrary to customary law? Had he considered the hyena's
situation and whether or not she had caused harm? Could he not have simply
driven her away? Eventually the elders ordered the man's clan to pay
compensation for the harm done by driving more than one hundred of their goats
(a fortune in that community) into the bush, where they could be eaten by the
hyenas and other wild carnivores.
The story, told to me by a Kenyan
friend, illustrates African customary law's concern with restorative justice
rather than retribution. Wrongdoing is seen as a symptom of a breakdown in
relationships within the wider community, and the elders seek to restore the
damaged relationship rather than focusing on identifying and punishing the
wrongdoer.
The verdict of a traditional African court regarding
hyenacide may seem of mere anthropological interest to contemporary Americans.
In most of today's legal systems, decisions that harm ecological communities
have to be challenged primarily on the basis of whether or not the correct
procedures have been followed. Yet consider how much greater the prospects of
survival would be for most of life on Earth if mechanisms existed for imposing
collective responsibility and liability on human communities and for restoring
damaged relations with the larger natural community. Imagine if we had elders
with a deep understanding of the lore of the wild who spoke for the Earth as
well as for humans. If we did, how might they order us to compensate for, say,
the anticipated destruction of the entire Arctic ecosystem because of global
climate change, to restore relations with the polar bears and other people and
creatures who depend on that ecosystem? How many polluting power plants and
vehicles would it be fair to sacrifice to make amends?
"SO WHAT WOULD A
RADICALLY DIFFERENT law-driven consciousness look like?" The question was posed
over three decades ago by a University of Southern California law professor as
his lecture drew to a close. "One in which Nature had rights," he continued.
"Yes, rivers, lakes, trees. . . . How could such a posture in law affect a
community's view of itself?" Professor Christopher Stone may as well have
announced that he was an alien life form. Rivers and trees are objects, not
subjects, in the eyes of the law and are by definition incapable of holding
rights. His speculations created an uproar.
Stone stepped away from that
lecture a little dazed by the response from the class but determined to back up
his argument. He realized that for nature to have rights the law would have to
be changed so that, first, a suit could be brought in the name of an aspect of
nature, such as a river; second, a polluter could be held liable for harming a
river; and third, judgments could be made that would benefit a river. Stone
quickly identified a pending appeal to the United States Supreme Court against a
decision of the Ninth Circuit that raised these issues. The Ninth Circuit Court
of Appeals had found that the Sierra Club Legal Defense Fund was not "aggrieved"
or "adversely affected" by the proposed development of the Mineral King Valley
in the Sierra Nevada Mountains by Walt Disney Enterprises, Inc. This decision
meant that the Sierra Club did not have "standing" so the court didn't need to
consider the merits of the matter. Clearly, if the Mineral King Valley itself
had been recognized as having rights, it would have been an adversely affected
party and would have had the necessary standing.
Fortuitously, Supreme
Court Justice William O. Douglas was writing a preface to the next edition of
the Southern California Law Review. Stone's seminal "Should Trees Have Standing?
Toward Legal Rights for Natural Objects" ("Trees") was hurriedly squeezed into
the journal and read by Justice Douglas before the Court issued its judgment. In
"Trees," Stone argued that courts should grant legal standing to guardians to
represent the rights of nature, in much the same way as guardians are appointed
to represent the rights of infants. In order to do so, the law would have to
recognize that nature was not just a conglomeration of objects that could be
owned, but was a subject that itself had legal rights and the standing to be
represented in the courts to enforce those rights. The article eventually formed
the basis for a famous dissenting judgment by Justice Douglas in the 1972 case
of Sierra Club v. Morton in which he expressed the opinion that "contemporary
public concern for protecting nature's ecological equilibrium should lead to the
conferral of standing upon environmental objects to sue for their own
preservation."
Perhaps one of the most important things about "Trees" is
that it ventured beyond the accepted boundaries of law as we know it and argued
that the conceptual framework for law in the United States (and by analogy,
elsewhere) required further evolution and expansion. Stone began by addressing
the initial reaction that such ideas are outlandish. Throughout legal history,
as he pointed out, each extension of legal rights had previously been
unthinkable. The emancipation of slaves and the extension of civil rights to
African Americans, women, and children were once rejected as absurd or dangerous
by authorities. The Founding Fathers, after all, were hardly conscious of the
hypocrisy inherent in proclaiming the inalienable rights of all men while
simultaneously denying basic rights to children, women, and to African and
Native Americans.
"Trees" has since become a classic for students of
environmental law, but after three decades its impact on law in the United
States has been limited. After it was written, the courts made it somewhat
easier for citizens to litigate on behalf of other species and the environment
by expanding the powers and responsibilities of authorities to act as trustees
of areas used by the public (e.g., navigable waters, beaches, and parks).
Unfortunately, these gains have been followed in more recent years by judicial
attempts to restrict the legal standing of environmental groups. Damages for
harm to the environment are now recoverable in some cases and are sometimes
applied for the benefit of the environment. However, these changes fall far
short of what Stone advocated for in "Trees." The courts still have not
recognized that nature has directly enforceable rights.
COMMUNITIES HAVE
ALWAYS USED LAWS to express the ideals to which they aspire and to regulate how
power is exercised. Law is also a social tool that is usually shaped and wielded
most effectively by the powerful. Consequently, law tends to entrench a
society's fundamental idea of itself and of how the world works. So, for
example, even when American society began to regard slavery as morally
abhorrent, it was not able to peaceably end the practice because the fundamental
concept that slaves were property had been hard-wired into the legal system. The
abolition of slavery required not only that the enfranchised recognize that
slaves were entitled to the same rights as other humans, but also a political
effort to change the laws that denied those rights. It took both the Civil War
and the Thirteenth Amendment to outlaw slavery. The Thirteenth Amendment, in
turn, played a role in changing American society's idea of what was acceptable,
thereby providing the bedrock for the subsequent civil rights movement.
In the eyes of American law today, most of the community of life on
Earth remains mere property, natural "resources" to be exploited, bought, and
sold just as slaves were. This means that environmentalists are seldom seen as
activists fighting to uphold fundamental rights, but rather as criminals who
infringe upon the property rights of others. It also means that actions that
damage the ecosystems and the natural processes on which life depends, such as
Earth's climate, are poorly regulated. Climate change is an obvious and dramatic
symptom of the failure of human government to regulate human behavior in a
manner that takes account of the fact that human welfare is directly dependent
on the health of our planet and cannot be achieved at its expense.
In
the scientific world there has been more progress. It's been almost forty years
since James Lovelock first proposed the "Gaia hypothesis": a theory that Earth
regulates itself in a manner that keeps the composition of the atmosphere and
average temperatures within a range conducive to life. Derided or dismissed by
most people at the time, the Gaia hypothesis is now accepted by many as
scientific theory. In 2001, more than a thousand scientists signed a declaration
that begins "The Earth is a self-regulating system made up from all life,
including humans, and from the oceans, the atmosphere and the surface rocks," a
statement that would have been unthinkable for most scientists when "Trees" was
written.
The acceptance of Lovelock's hypothesis can be understood as
part of a drift in the scientific world away from a mechanistic understanding of
the universe toward the realization that no aspect of nature can be understood
without looking at it within the context of the systems of which it forms a
part. Unfortunately, this insight has been slow to penetrate the world of law
and politics.
But what if we were to imagine a society in which our
purpose was to act as good citizens of the Earth as a whole?
What might
a governance system look like if it were established to protect the rights of
all members of a particular biological community, instead of only humans? Cicero
pointed out that each of our rights and freedoms must be limited in order that
others may be free. It is far past time that we should consider limiting the
rights of humans so they cannot unjustifiably prevent nonhuman members of a
community from playing their part. Any legal system designed to give effect to
modern scientific understandings (or, indeed, to many cultures' ancient
understandings) of how the universe functions would have to prohibit humans from
driving other species to extinction or deliberately destroying the functioning
of major ecosystems. In the absence of such regulatory mechanisms, an oppressive
and self-destructive regime will inevitably emerge. As indeed it has.
In
particular, we should examine the fact that, in the eyes of the law,
corporations are considered people and entitled to civil rights. We often forget
that corporations are only a few centuries old and have been continually
evolving since their inception. Imagine what could be done if we changed the
fiduciary responsibilities of directors to include obligations not only to
profitability but also to the whole natural world, and if we imposed collective
personal liability on corporate managers and stockholders to restore any damage
that they cause to natural communities. Imagine if landowners who abused and
degraded land lost the right to use it. In an Earth-centered community, all
institutions through which humans act collectively would be designed to require
behavior that is socially responsible from the perspective of the whole
community.A society whose concern is to maintain the integrity or wholeness of
the Earth must also refine its ideas about what is "right" and "wrong." We may
find it more useful to condone or disapprove of human conduct by considering the
extent to which an action increases or decreases the health of the whole
community and the quality or intimacy of the relationships between its members.
As Aldo Leopold's famous land ethic states, "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." From this perspective, individual and collective
human rights must be contextualized within, and balanced against, the rights of
the other members and communities of Earth.
ON SEPTEMBER 19, 2006, the
Tamaqua Borough of Schuylkill County, Pennsylvania, passed a sewage sludge
ordinance that recognizes natural communities and ecosystems within the borough
as legal persons for the purposes of enforcing civil rights. It also strips
corporations that engage in the land application of sludge of their rights to be
treated as "persons" and consequently of their civil rights. One of its effects
is that the borough or any of its residents may file a lawsuit on behalf of an
ecosystem to recover compensatory and punitive damages for any harm done by the
land application of sewage sludge. Damages recovered in this way must be paid to
the borough and used to restore those ecosystems and natural communities.
According to Thomas Linzey, the lawyer from the Community Environmental
Legal Defense Fund who assisted Tamaqua Borough, this ordinance marks the first
time in the history of municipalities in the United States that something like
this has happened. Coming after more than 150 years of judicially sanctioned
expansion of the legal powers of corporations in the U.S., this ordinance is
more than extraordinary-it is revolutionary. In a world where the corporation is
king and all forms of life other than humans are objects in the eyes of the law,
this is a small community's Boston tea party.
In Africa, nongovernmental
organizations in eleven countries are also asserting local community rights in
order to promote the conservation of biodiversity and sustainable development.
Members of the African Biodiversity Network (ABN) have coined the term "cultural
biodiversity" to emphasize that knowledge and practices that support
biodiversity are embedded in cultural tradition. The ABN works with rural
communities and schools to recover and spread traditional knowledge and
practices.
This is part of a wider effort to build local communities,
protect the environment by encouraging those communities to value, retain, and
build on traditional African cosmologies, and to govern themselves as part of a
wider Earth community.
These small examples, emerging shoots of what
might be termed "Earth democracy," are pressing upward despite the odds. It may
well be that Earth-centered legal systems will have to grow organically out of
human-scale communities, and communities of communities, that understand that
they must function as integrated parts of wider natural communities. In the face
of climate change and other enormous environmental challenges, our future as a
species depends on those people who are creating the legal and political spaces
within which our connection to the rest of our community here on Earth is
recognized. The day will come when the failure of our laws to recognize the
right of a river to flow, to prohibit acts that destabilize Earth's climate, or
to impose a duty to respect the intrinsic value and right to exist of all life
will be as reprehensible as allowing people to be bought and sold. We will only
flourish by changing these systems and claiming our identity, as well as
assuming our responsibilities, as members of the Earth community.