We are accustomed to think of a ‘right’ as an attribute of human kind. There is new legal thinking under way that suggests, in the context of modern environmental challenges, that it’s time to extend that concept.
This year Ireland has been subjected to some of the worst flooding in living memory during one of our warmest winters ever. Climatic distortions such as these, which are predicted to become more pronounced, are the product of a Climate Change attributed to human activities by the overwhelming majority of climate scientists.
At least the recent Paris COP21 Agreement commits the world’s governments to holding average global temperatures to below 2°C of an increase on pre-Industrial levels. This should entail a significant reduction in emission across all sectors. But we may also need fresh philosophical perspectives on the Earth to inform our laws as we awake to the realisation that human beings now enjoy unprecedented mastery over the natural world.
Alongside and concomitant with Climate Change is what has been called the Sixth Extinction. Thus, the World Wildlife Fund estimates that the number of wild animals has halved in just the last forty years. A range of farming, logging and mining activities continue to lay waste to remaining virgin habitats. Protecting those remaining – and even restoring others – is also of great importance to human beings, especially in terms of maintaining clean air and water. But alongside human interests: is it time to start considering the rights of multiple forms of life?
The recent floods led to a debate over dredging along the River Shannon with farmers’ representatives claiming that EU Nature Directives would prevent effective measures being carried out to protect their members. The European Commission denied this, clarifying that the legislation defers in its objectives to the protection of persons and property.
This scenario exhibits the limitation of a regime where the biodiversity that abounds on the banks of rivers is not supported by any right to exist. An individual property owner seems to enjoy untrammelled right to take such measures as necessary merely to protect his chattels from flooding.
Yet this elevation of individual property rights may also come at the expense of the wider human community that enjoy tangible benefits from biodiversity, including resilience against extreme weather events. However, if we envisage that plants and animals can have associated rights then the problem may be overcome. Individual landowners can still be compensated as the wider community sees fit.
This would entail shifting our understanding of private property guaranteed under Article 43 of the Constitution. The ‘exigencies of the common good’ have been amplified considerably since 1937. Moreover, a person’s legal ownership of property confers rights but also gives rise to new duties, suggesting entitlement on the part of the objects of those duties.
Lawyers in the future may be called upon to negotiate the inevitable friction that will occur, especially as we observe the incredible complexity and interdependence of Nature. But the important philosophical departure is to accept that natural objects enjoy rights and that the concept of a right is not confined to humans. We refer to this as Earth Jurisprudence or Wild Law.
In a seminal 1972 article Should Trees Have Standing Professor Christopher D. Stone explores how such an idea could work in practice. He suggests natural objects could have legal standing by analogy with companies, states, infants, incompetents, municipalities or even universities. He says: ‘On a parity of reasoning, we should have a system in which, when a friend of a natural object perceives it to be endangered, he can apply to a court for the creation of a guardianship … The guardian would urge before the court injuries not presently cognizable – the death of eagles and inedible crabs, the suffering of sea lions, the loss from the face of the earth of species of commercially valueless birds, the disappearance of wilderness areas.’
Stone also draws an analogy with the law of patents and copyright: ‘I am proposing that we do the same with eagles and wilderness areas as we do with copyrighted works, patented inventions and privacy: make the violation of rights in them to be a cost by declaring the piracy of them to be the invasion of a property interest.’
He even suggests that this could involve modifications of our representative assemblies: ‘I am suggesting that there is nothing unthinkable about, and there might on balance even be a prevailing case to be made for an electoral appointment that made some systematic effort to allow for the representative “rights” of non-human life.’
He envisages that a change in the law would inform wider social norms: ‘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 more environment-protecting rules by formal enactment.’
Finally he speculates that: ‘What is needed is a myth that can fit our growing body of knowledge of geophysics, biology and the cosmos’, and considers: ‘that we may come to regard the Earth, as some have suggested, as one organism of which mankind is a functional part’.
Such a myth now exists in the shape of Pachamama a goddess revered by the indigenous people of the Andes who in September 2008 entered the Ecuadorian constitution. The state and its citizens commit to seeking well-being in a manner that is harmonious with nature. More importantly Nature or Pachamama is granted a right ‘to exist, persist, and maintain and regenerate its vital cycles, structure, functions and its evolutionary processes.’ A duty is also imposed on all Ecuadorian men and women is ‘to respect the rights of nature, preserve a healthy environment and use natural resources in a rational, viable and sustainable manner.’
This was followed by a call from nine countries of the Bolivarian Alliance for the Peoples of Our America on October 17th 2009 for a Universal Declaration of Mother Earth Rights. It includes the statement that: ‘Just as World War II caused a serious humanity crisis that in 1948 led to the adoption of the Universal Declaration of Human rights, today we are suffering the enormous consequences of Climate Change making it essential to have a Universal Declaration of Mother Earth Rights.’
In the Descent of Man Charles Darwin argues that the history of man’s moral development has been a continual extension of the objects of his ‘social instincts’ and ‘sympathies’: ‘Originally each man had regard only for himself and those of a very narrow circle about him’; later he came to regard more and more ‘not only the welfare, but the happiness of all his fellow men’; then ‘his sympathies became more tender and widely diffused, extending to men of all races, to the imbecile, maimed and other useless members of society, and finally to the lower animals’.
Over time, albeit with significant interruptions, the evolution of the law has reflected this expansion in our sympathies. It seems unthinkable that a father could have power of life or death over his family as a Roman paterfamilias did or that racial segregation and Apartheid could operate again. Broadening this compassion to encompass the rest of Nature is required in an age of impending dangers from Climate Change and species loss. The great power we now hold imposes weighty responsibilities and an idea that law applies to all manifestations of nature may prove important for preserving human beings too.
Christopher D. Stone ‘Should Trees Have Standing’ (1972): Available online at http://isites.harvard.edu/fs/docs/icb.topic498371.files/Stone.Trees_Standing.pdf
Cormac Cullinan Wild Law A Manifesto for Earth Justice (Green Books, Totnes, 2003)