Rights of Nature: Just Another Chocolate Laxative?Lukas van den Berge
Scholars, lawyers and activists around the world have recently embraced the idea of granting legal personality and subjective rights to rivers, landscapes and other natural entities. In view of the climate crisis and other environmental problems, such an expansion of legal personhood and rights is widely understood as a revolution that could save the world. Arguably, however, the rights of nature concept is not really a shift, but only a further extension of a legal paradigm that causes so much trouble in the first place. Instead, what is needed is a thorough reconsideration of the concepts of legal personality and rights themselves.
In one of his controversial essays, Slovenian star philosopher Slavoj Žižek refers to the chocolate laxative as a paradigm of modern western culture. Sold in boxes that advertise it as ‘very pleasant both in taste and action’, the chocolate laxative is typically publicised as its own antidote. ‘Do you have constipation? Eat more of this chocolate’, or so a well-known American television commercial has it. For Žižek, the same structure – the thing itself is the remedy against the threat it poses – is widely visible in today’s ideological landscape. Take, for instance, emission trading systems as they are currently used worldwide in order to reduce the release of greenhouse gases. As it is generally acknowledged, global capitalism – with its imperatives of economic growth and ever-increasing levels of production and consumption – is at the heart of the current climate crisis. Ironically, however, it is from the workings of capitalism itself that the European Union Emissions Trading System (EU ETS) and other such programmes expect a proper remedy.
Calling for more radical ways to combat global warming and to protect the planet’s life-support systems more in general, scholars, lawyers, activists and politicians around the world have recently embraced the idea of ‘earth jurisprudence’ as a true ‘legal revolution that could save the world’. Supposedly breaking with anthropocentrism as the viewpoint that puts human beings at the centre of everything, earth jurisprudence starts out from the idea that legal rights should be assigned to human as well as non-human animals and – in its most recent manifestation – also to natural entities such as rivers, lakes and mountains. Current laws would fail to protect nature because they are based on the premise that nature is merely an object of human exploitation and profit. In order to facilitate a transition to a sustainable future, a ‘fundamental reorientation’ would be needed that discards familiar legal and cultural paradigms and transforms humans from conquerors and possessors of nature to ‘members of the planet’s community of life’.
In recent years, the idea of giving rights to nature has moved from mere theory to practice in various jurisdictions around the world. Examples of their practical implementation range from the recognition of rights of nature in municipal ordinances in the United States and elsewhere to their codification in national laws in Bolivia and New Zealand, their recognition by the Supreme Court of Colombia and even their inclusion in Ecuador’s new constitution of 2008. As we speak, new initiatives are developed across the globe. In the Netherlands, for instance, several public interest groups have instigated campaigns that should ultimately lead to the granting of legal rights to the Wadden Sea, the river Maas and to the estate of Amelisweerd – a small forest near Utrecht that is currently under threat of being cut down in order to facilitate the broadening of a busy highway. As it is expected, these developments and initiatives are only the beginning of a much wider movement that will gain further momentum in the future.
The growing popularity of the rights of nature concept is obviously inspired by the growing awareness of ongoing and still impending environmental catastrophes. According to many of its proponents, the extension of the rights paradigm to natural entities could support legal action on behalf of the environment in various ways. To begin with, the rights of nature concept would be important in order to guarantee access to justice. In conventional systems of law, legal standing in environmental cases is typically limited for human beings or their organisations on the condition that they are particularly affected by ecological upheaval. The idea of rights of nature, however, logically involves legal standing of natural entities themselves. Additionally, and perhaps even more significantly, the recognition of nature’s inherent right to be and evolve would strengthen its position as courts would be required to make clear how such a right could be properly respected while counterbalancing it to economic and other human interests.
Evidently, everything that could strengthen environmental claims is more than welcome in a time in which it is becoming increasingly clear that serious and immediate action is needed in order to prevent an ecological breakdown. Even though reports from Ecuador, Bolivia, Colombia and elsewhere suggest that the implementation of the rights of nature concept does not necessarily lead to enhanced levels of environmental protection, it certainly seems that the recognition of such rights may be helpful in particular circumstances. In a number of interesting publications, for example, philosopher and political theorist Mihnea Tănăsescu explains why the assignment of legal personality to the Te Urewera park and to the Whanganui River in New Zealand should be considered a success, while also pointing out why the implementation of the rights of nature concept seems to have perverse effects in many other instances. The rights of nature are not a monolith. Whether they deserve our support or not, depends on the particular way in which they take shape in legal and political practice.
What seems for sure, however, is that the idea of giving rights to nature does not really amount to a ‘legal revolution’ that could save our planet and its biosphere. Arguably, the rights of nature concept is not really a shift, but only a further extension of a longstanding legal paradigm that causes so much trouble in the first place. The concept of rights itself and the related notion of legal personality are the elephants in the room here. In western legal and political thought, rights are typically invoked in order to legitimate a private sphere in which individuals are at liberty of advancing their own interests without interference by others. Accordingly, rights (and property rights most in particular) play a pivotal role in the sustenance of a system of globalised capitalism that poses such a threat to sustainable life in modern societies. The same goes for a modern conception of legal personhood as a uniform abstraction that does not only include individual human beings, but also pertains to corporations and other fictive bodies.
An underlying cause for the climate crisis and other environmental problems seems not to be that natural entities do not have rights. Instead, the current crisis obviously relates to a western legal and political system that awards far-reaching rights to private individuals and their organisations without properly counterbalancing those rights with legal responsibilities. To be sure, that does not mean that granting rights and legal personality to natural entities is necessarily a bad idea. What it does mean, however, is that a possible transition to ‘earth jurisprudence’ as a new legal paradigm requires careful reconsideration of notions such as ‘rights’ and ‘legal personality’ themselves. Without a fundamentally new understanding of what such notions entail, the rights of nature concept is doomed to remain a half-baked solution that aims to fight fire with fire and does not really address the root of the problem. Or, to put it in Žižek’s terms: without such rethinking, it is destined to be nothing but just another chocolate laxative.