This article is taken from the foundations section of my (forthcoming) report about Rights of Nature legislation. I thought it was worth publishing as a stand-alone blog post.
2.1 An Overview of Rights of Nature
In this section I seek to give an overview of the idea(s) of Rights of Nature and (briefly) set out my position. In essence, ‘Rights of Nature’ is the idea that (non-human) elements of nature have inherent value and should have substantive legal rights and ability to act as legal subjects (via human representatives) in the legal system so as to protect their interests.*
*As is the case with ‘rights’, ‘Rights of Nature’ can mean either rights in the moral framing or refer to legal rights. In both this overview and report, the legal sense is my focus.
In my view, coming from a relational understanding of law and society,[1] law is not merely a neutral mechanism but perpetuates and reproduces particular forms and ideas about social (and socio-ecological) relations. The purpose of Rights of Nature is (or should be) that the legal system should be working towards just and harmonious relationships with the rest of nature and transforming the current destructive relationships.
Underlying Values
Rights of Nature thinking is rooted in different values and worldviews than those which are currently dominant in western societies. Western worldviews are primarily ‘anthropocentric’ – human centred – meaning that they consider humans to be the most (or only) important beings. In this thinking, the rest of the natural world is simply the human environment, full of ‘natural resources’ for us to make use of, pretty things for us to enjoy, and a healthy environment for us to live in.
Though ‘Rights of Nature’ is not one homogenous approach, the various schools of thought have some core values in common. (Non-human) nature has inherent value for its own sake, instead of only having value as instrumental for humans, and humans live as part of a wider ecological world instead of as masters of it. Humans should respect the rest of nature, and we should live in a sustainable way that does not destroy and degrade it.
Rights of Nature thinking posits a vision for how our legal system and society in general should be different, and work actively towards humans living harmoniously with the rest of nature. These legal rights could protect (nonhuman) interests of nature from being harmed by human activity, require intervention from the state (or others) for their protection, and bring about ecological restoration where harm has occurred.
The biggest current in Rights of Nature thinking is based on moral rights for nature. The foundational moral rights are generally recognised as including the right to exist, the right to ecological integrity and the right to restoration.[2] There are different sets of rights claimed beyond this,[3] and it is generally recognised that different aspects of nature might need different sets of rights.[4] However, the moral rights do not necessarily flow directly into legal rights, so there remains a need for legal and political theory on top of morality, as will be revisited below.
Rights of Nature is not one homogenous approach but a plurality of related approaches around the world – including political, cultural and legal approaches.[5] That said, the main ‘orthodox’ Rights of Nature position is a set of moral rights and some form of ‘natural law’ argument for how this relates to law.[5b] This is rooted in or inspired by liberal political theory, which underpins traditional human rights approaches, and extends this approach to Rights of Nature. However, this orthodox position does not include much detail on how Rights of Nature should work legally, either as rights or what this should mean in terms of legal obligations.
Beyond this, there are a range of philosophical or cultural foundations for Rights of Nature ideas, ranging from indigenous cosmologies to western folk spirituality to modern science. While the idea of legal Rights of Nature was initially one part of the broader doctrine of Earth Jurisprudence, it has now outgrown that to become an approach used pragmatically. There is a risk it becomes decoupled from any particular underlying values and forgotten that there is more needed for an ecological legal transformation than just Rights of Nature.
Despite these multiple different approaches, these can be collectively understood as being ‘ecocentric’ or ‘ecological’ worldviews, meaning that humans are recognised as being part of a wider natural world and that the rest of nature also has inherent moral worth. In this worldview, humans are recognised as part of the wider natural world, not separate from or superior to some ‘othered’ conception of nature. Non-human entities are neither mechanistic nor random processes, but understood to have agency, make decisions, seek to further their interests, and function as subjects instead of passive objects – and worthy of being valued and respected by humans.
Rights of Nature can certainly have beneficial effects for humans: we need a healthy environment, and Rights of Nature should function to protect ‘the environment’ directly. However, they should function to protect ecology for its own sake, and not to slip into the instrumental value of Rights of Nature benefit humans, which will almost certainly end up falling short of what is actually needed.
Legal System Transformation
Rights of Nature was originally just one part of the wider thinking of Earth Jurisprudence, or ecological approaches to law, which looks towards transformation across the full legal system and includes other elements. That said, Rights of Nature themselves, if taken seriously, have effects and necessitate change across the entirety of the legal system – which is what this report is about.
There are different pathways for legal developments and a variety of Rights of Nature laws and initiatives, and. Ultimately, for the full transformation of a legal system, multiple (if not all) of these elements must be present. In a previous research report, ‘Realising Rights of Nature: Understanding the Variety of Legal Instruments’,[6] I categorised the different types of legal change and how they interrelate, and surveyed developments in different jurisdictions. As shown in the below diagram, the different types are: Constitutional Change, Legislative Framework, Element Specific Subjecthood, Litigation/Case Law; and Common Law Principles.
These initiatives mean that a nature-subject is granted the ability to participate in the legal system – via humans acting to represent the interests of the nature-subject. This is usually known as ‘legal personhood’, though I think the language of ‘subjecthood’ is better because elements of nature are not persons. [7] This legal subjectivity of nature does involve an element of fiction in the legal subjectivity of nature: it is always be human representatives acting for nonhuman nature and deciding on its behalf.[8] The crucial point is that the interests being served by the law are different: it is the interest of the aspect of nature – distinct from any human interest – which has the rights, can bring legal actions, may be established as a legal entity, and benefits from legal relief.[9] While this sort of representation of nature in law is a novel development, both legal interests being represented by another and the creation of distinct abstract legal entities are not new: there are parallels with corporate entities being created and represented by human directors and employees, officials acting in some ‘public interest’, trustees, and where a human individual without full capacity is represented by another.
Rights of Nature can (and arguably should) flow across the entirety of the legal system: full effectiveness would be a significant transformation which affects property, criminal, tort, contract, human rights, and administrative law. As they are introduced, these interactions could be either positive or confrontational, smooth or messy, depending on how the new ecological norms are resolved against existing legal norms which benefit humans (or particular human social groups).[10]
Legal Change for Social Transformation[11]
Catastrophic ecological (and social) consequences are on the horizon and a colossal shift in how we live is needed. Social movements and Rights of Nature advocates must always remember that changing the law itself is not the goal; rather, just one step as part of political and social change. Radical changes to our legal system are proposed, but it is this scale of change which is vitally necessary if our legal systems are to work towards societies which live harmoniously with the rest of nature instead of supporting destruction of the natural world. The key issue is therefore to consider how legal rights will change the underlying social relations.
However strong the moral arguments may be, morality does not simply translate into legal rights – or at least establishing legal rights does not necessarily or straightforwardly bring about the desired results in the world. The political and economic system – society as a whole – is generally (though messily and with internal tensions) functioning in an extractive and human supremacist way, and there will be significant resistance to this being challenged. This comes both from particular actors who are currently benefitting from this – such as fossil fuel companies and other financial interests who have much vested in extractive licences – and from the inertia that extractivism and ecological damage are woven into almost every aspect of the social order and human activity.
Many Rights of Nature advocates have drawn on liberal legal theory, such as human rights theory. Rights of Nature advocates would do well to bear in mind the mixed legacy of human rights, which often fails to achieve emancipation or social transformation,[12] and learn from critical human rights scholars. In my view, liberal theories of rights – at their core about securing individual freedom – are flawed. Instead, for Rights of Nature thinking (as also for human rights thinking), relational and ecological legal theory is needed.[13]
Designers of Rights of Nature legislation should therefore be considering the key question of how the laws can work to change eco-social relations. One key consideration here is how the change will be driven – and who will represent the interests of nature-subjects. This could be via state bureaucracy or more democratised bottom-up change from local communities, civil society, or simply any person. This will often depend on the particular political and social context – as both law and social change always does – and how it links into existing social movements and political resistance.
This article is taken from the foundations section of a (forthcoming) report, Realising Rights of Nature: Conceptual Foundations for Legislation. The references below to sections are sections of that.
[1] This was my main research project – see more at <www.interconnectedlaw.com>.
[2] For example: the Universal Declaration for the Rights of Mother Earth, Universal Declaration on the Rights of Rivers, Article 2 of the Law for the Mar Menor in Spain.
[3] Discussed briefly in Section 3.2.
[4] Different nature-subjects is discussed in Section 3.1.
[5] See discussion in Mihnea Tanasescu, Understanding the Rights of Nature: A Critical Introduction (2022), p17 and Chapter 2.
[5b] I have in mind Thomas Berry, Cormac Cullinan and Christopher Stone. See also discussion of the ‘orthodox position’ in Mihnea Tanasescu, Understanding the Rights of Nature: A Critical Introduction (2022).
[6] Alex May, ‘Realising Rights of Nature: Understanding the Variety of Legal Instruments’, Lawyers for Nature, September 2023, available at <www.interconnectedlaw.com/Rights-of-Nature-Taxonomy>.
[7] This will be discussed further in Section 2.3.
[8] This will be discussed further in Section 3.3.
[9] These elements were first set out in Christopher Stone’s article ‘Should Trees Have Standing? Towards Legal Rights for Natural Objects’ (1972) Southern California Law Review 450, 458.
[10] This is the topic of Section 3.
[11] A longer version of the argument in this section can be found on my website: Alex May, ‘A Social Ecology Approach to Rights of Nature’ available at <www.interconnectedlaw.com/Rights-of-Nature-Social-Ecology>. A similar argument is made by Mihnea Tanasescu in Understanding the Rights of Nature: A Critical Introduction (2022).
[12] This is the topic of Section 2.4.
[13] This was my main research project – see more at <www.interconnectedlaw.com>.