The Rights of Nature: Reconsidered
By Peter Burdon | March 31, 2015
When God-like Odysseus returned from the wars in Troy, he hanged all on one rope a dozen slave-girls of his household whom he suspected of misbehavior during his absence. This hanging involved no question of propriety. The girls were property. The disposal of property was then, as now, a matter of expediency, not of right and wrong. (Leopold 237)
In 1972, professor Christopher Stone from the University of Southern California was approaching the final minutes of an introductory lecture on property law. He noted that, like human culture, property law is an evolving social construct and has progressed through different stages of growth and development (Schlatter). As Aldo Leopold notes in the introductory quote, human beings were once considered property. Assault or even the intentional killing of a slave was considered a matter for property law, not a matter for human rights.
Throughout history, we have seen a continual evolution in the types of things that can be owned, who was considered capable of ownership and the meaning of ownership itself (Stone, "Trees" vii). Stone commented to his class that "it was easy to see how each change shifted the locus and quality of power ... each advance in the law-legitimated concept of ownership, fueling a change in consciousness, in the range and depth of feelings" ("Trees" vii). Stone was awakened from this historical narrative by the shutting and voices of his students who had begun to "pack away their enthusiasm for the next venture" ("Trees" vii). In an effort to maintain their attention, he wondered aloud:
So, what would a radically different law-driven consciousness look like? ... One in which Nature had rights ... Yes, rivers, lakes ... trees ... animals... How would such a posture in law affect a community's view of itself?("Trees" vii)
This thought experiment created uproar and as Stone stepped out of the lecture theater he asked himself, "what did you just say in there? How could trees have rights?" ("Trees" vii). Evidently, he had no idea. Thirty years later, Stone's paper "Should Trees Have Standing" and its influence in Sierra Club v Morton1 has become the thing of legend and continues to resonate with pockets of students in contemporary law schools. However, until recently, the notion of recognizing nature as an entity capable of holding rights was completely ignored by lawmakers.2
Writing in the American Bar Association Journal in 1973, practicing lawyer John Naff captures the profession's early reactions to Stone's thesis and the dissenting judgement of Justice Douglas in Sierra Club. He writes:
If Justice Douglas has his way –
O Come not that dreadful day –
We'll be sued by lakes and hills
Seeking a redress of ills
Great Mountain peaks of name prestigious
Will suddenly become litigious
Our brooks will babble in the courts,
Seeking damages for torts
How can I rest beneath a tree
If it may soon be suing me?
Or enjoy the playful porpoise
While it's seeking habeas Corpus?
Every beast within his paws
Will clutch an order to show cause
The Courts besieged on every hand,
Will Crowd with suits by chunks of land.
Ah! But vengeance will be sweet
Since this must be a two-way street.
I'll promptly sue my neighbour's tree
For shedding all its leaves on me. (727)
That Naff chose to write in comical verse is instructive. Indeed, while the law had recently shifted to recognize racial and gender equality,3 it was not yet ready to consider seriously an extension of rights to nature. Stone anticipated this resistance, noting "[t]hroughout legal history, each successive extension of rights to some new entity has been, there to, a bit unthinkable . . . each time there is a movement to confer rights onto some new “entity,” the proposal is bound to sound odd or frightening or laughable." ("Trees" 2-3) This is because until the entity in question is recognized as having rights, "we cannot see it as anything but a thing for the use of "us"—those who are holding rights at the time. ("Trees"3) This is true for nature, as it was for slaves, women, and children at different points in history. Three decades later, lawmakers are beginning to take seriously Stone's thesis as a novel and potentially powerful means to protect the environment.
In part one of this article, I will detail how the rights of nature have been recognized in municipal ordinances in the United States, the constitution of Ecuador and in a proposed United Nations Declaration. Following this, I will outline pertinent philosophical objections to the concept of rights and where possible, consider responses to these objections. I contend that the current environmental rights movement must engage seriously with the extensive literature on rights and advocate a position which is robust and intellectually sound. If this can be achieved, recognizing the rights of nature could represent a powerful tool for environmental protection and place appropriate responsibilities on human beings as members of a broader Earth community.CONTINUE READING: "The Rights of Nature: Reconsidered."
1 Stone's thesis concerned the legal issue of standing. Here the court affirmed the existing test that required the party seeking review to have suffered actual damage. However, in a dissenting judgement, Justice Douglas noted "the critical question of standing would be simplified and also put neatly in focus if we . . . allowed environmental issues to be litigated . . . in the name of the inanimate object about to be despoiled, defaced,or invaded. 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 ... this suit would therefore be more properly labelled as Mineral King v. Morton" (See Should Trees Have Standing?). Both Justices Blackmum and Brennan favored the conventional interpretation of standing but in the alternative would have permitted the "imaginative expansion" of standing advocated by Stone and Douglas.
2 For an interesting survey see Stone, Do Morals Matter? Stone notes: "Right! /2 (nature of environment) . . . gets 192 hits in the ALLFEDS database, even though one might have expected courts to be the more hospitable forum for rights-talk. None of the 10 percent samples was philosophically significant."
3 Specifically in regard to the civil rights and feminist movements.
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