In this provocative essay, which appeared in the January/February 2008 issue of Orion magazine (online here) South African environmental lawyer Cormac Cullinan imagines what nature could gain and what humans could "lose" if nature were given legal protection. Essay translation: Jiří Zemánek. Cormac Cullinan is the author of the book Wild Law: A Manifesto for Earth Justice (Green Books, Cambridge 2011).
He was awakened by the sudden crash of goat carcasses against the wall of the boma. The Kenyan farmer grabbed a spear and a stick, slipped out into the warm night, and crept toward the enclosure. All he could see was the spotted, slanting backside of the animal, trying to squeeze through the stakes to reach the goats. But that was enough. He drove his spear deep into the hyena.
The elders, who had gathered under a tree to discuss the matter, were clearly dissatisfied with the farmer’s explanation. The man who had been appointed by the traditional court to represent the hyena’s interests, testified that on careful examination of the animal’s carcass, he discovered that it was a female still nursing her young. He argued that, given the drought and the hyena’s need to feed her young, its behavior of trying to find food in human settlements was reasonable and that killing it was wrong. The elders then questioned the farmer carefully. They asked him whether he was aware that such killing was against customary law. Had he considered the hyena’s situation and whether or not it had caused harm? Couldn’t he have simply chased it away? Finally, the elders ordered the man's clan to pay compensation for the damage he had caused by driving more than a hundred of their goats (a fortune in that community) into the bush, where they could be eaten by hyenas and other wild animals.
This story, told to me by a Kenyan friend, illustrates that African customary law focuses on restorative justice rather than retribution. Wrongdoing is seen as a sign of a breakdown in relationships within the wider community, and elders seek to repair damaged relationships rather than focusing on identifying and punishing the perpetrator.
The verdict of a traditional African court regarding the killing of a hyena may seem interesting to contemporary Americans only anthropologically. In most legal systems today, decisions that harm ecological communities are to be challenged primarily on the basis of whether or not they followed proper procedures. But consider how much greater the prospects for survival for most life on Earth would be if there were mechanisms for imposing collective responsibility on human communities and for restoring damaged relationships with the larger natural community. Imagine having elders with a deep understanding of wildlife knowledge who spoke for the Earth as well as for humans. If we did, how could they order us to compensate for, for example, the expected destruction of the entire Arctic ecosystem due to global climate change, to restore relationships with 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 such a reparation?
“SO WHAT WOULD A RADICALLY DIFFERENT LEGAL CONSCIOUSNESS LOOK LIKE?” A law professor at the University of Southern California asked this question more than three decades ago, as his lecture drew to a close. “A consciousness in which nature has rights,” he continued. “Yes, rivers, lakes, trees. . . . How might such a legal stance affect the way the human community sees itself?” Professor Christopher Stone might as well have declared himself an alien life form, since rivers and trees are objects, not subjects, in the eyes of the law and by definition incapable of having rights. His speculation caused a stir.
Stone left the lecture somewhat stunned by the class’s reaction, but determined to push his case further. He realized that for nature to have rights, the law would have to be changed so that, first, a lawsuit could be filed on behalf of some aspect of nature, such as a river; second, a polluter could be held accountable for harming the river; and third, judgments could be rendered that would benefit the river. Stone quickly identified a pending appeal to the United States Supreme Court of a Ninth Circuit decision that raised these very questions. The Ninth Circuit Court of Appeals found that the Sierra Club’s legal defense fund was neither “impaired” nor “adversely affected” by Walt Disney Enterprises, Inc.’s proposed development of the Mineral King Valley in the Sierra Nevada Mountains. This ruling meant that the Sierra Club lacked “standing,” so the court did not have to address the merits of the case. It is clear that if Mineral King Valley were itself recognized as a rights holder, it would be an adversely affected party and would therefore have the necessary standing to bring proceedings.
Coincidentally, Supreme Court Justice William O. Douglas was writing the foreword to the next edition Southern California Law Review. Stone’s seminal article, “Should Trees Have Standing? Toward Legal Rights for Natural Objects,” was hastily squeezed into this law review and read to the court by Justice Douglas before the verdict was handed down. In it, Christopher Stone argued that courts should grant legal standing to guardians to represent the rights of nature, much as guardians are appointed to represent the rights of infants. To do so, the law would have to recognize that nature is not simply a conglomerate of objects that can be owned, but that it is an entity with legal rights in its own right and the capacity to be represented in courts to enforce those rights. The aforementioned Stone text eventually became the basis for Justice Douglas's famous dissenting judgment in the 1972 Sierra Club v. Morton case, in which the judge expressed the opinion that "the current public interest in protecting the ecological balance of nature should lead to the recognition of the capacity of environmental objects to bring lawsuits for their own protection."
Perhaps one of the most important things about Stone’s text is that it dared to transcend the accepted boundaries of law as we know it, arguing that the conceptual framework for law in the United States (and by analogy elsewhere) required further evolution and expansion. Stone began by addressing people’s initial reaction that such ideas were bizarre. He pointed out that throughout legal history, every extension of legal rights had previously been unthinkable. The emancipation of slaves and the extension of civil rights to African Americans, women, and children had once been rejected by authorities as absurd or dangerous. The Founding Fathers, after all, were hardly aware of the hypocrisy inherent in proclaiming the inalienable rights of all people while denying basic rights to children, women, and African and Native Americans.
Stone’s “Trees” has since become a classic for students of environmental law, but even three decades later, its impact on the law in the United States has remained limited. Since its publication, courts have made it somewhat easier for citizens to bring lawsuits on behalf of other species and the environment by expanding the powers and responsibilities of agencies that are supposed to act as stewards of areas used by the public (e.g., waterways, beaches, and parks). Unfortunately, these gains have been followed in recent years by court attempts to limit the legal standing of environmental groups. Damages for environmental damage are now in some cases enforceable, and are sometimes enforced in favor of the environment. But these changes fall far short of what Christopher Stone advocated in his book. The courts have still not recognized that nature has directly enforceable rights.
SOCIETIES HAVE ALWAYS USED LAWS to express the ideals they pursue and to regulate the exercise of power. Law is also a social tool that is usually most effectively shaped and used by the powerful. As a result, law tends to reinforce a society’s basic idea of itself and the way the world works. For example, even when American society came to view slavery as morally repugnant, it was unable to peacefully end the practice because the basic idea that slaves were property was firmly embedded in the legal system. The abolition of slavery required not only the recognition by those in power that slaves were entitled to the same rights as other people, but also political efforts to change the laws that denied slaves those rights. It took 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, providing the basis for the subsequent civil rights movement.
In the eyes of American law today, most of the communities of life on Earth remain mere property, natural “resources” that can be exploited, bought, and sold like slaves. This means that environmentalists are rarely seen as activists fighting for basic rights, but rather as criminals who violate the property rights of others. It also means that activities that damage ecosystems and the natural processes on which life depends, such as the Earth’s climate, are poorly regulated. Climate change is a clear and dramatic symptom of the failure of human government to regulate human behavior in a way that recognizes that human well-being is directly dependent on the health of our planet and cannot be achieved at its expense.
There has been more progress in the scientific world. It has been almost forty years since James Lovelock first proposed the “Gaia hypothesis”: the theory that the Earth regulates itself by keeping the composition of its atmosphere and average temperatures within a range that is favorable for life. The Gaia hypothesis, which was ridiculed or rejected by most people at the time, is now widely accepted as a scientific theory. In 2001, more than a thousand scientists signed a statement that begins: “The Earth is a self-regulating system composed of all life, including humans, and of the oceans, atmosphere, and surface rocks.” This statement would have been a Should Trees Have Standing? was unthinkable to most scientists.
The acceptance of Lovelock's hypothesis can be seen as part of the scientific world's shift away from a mechanistic understanding of the universe towards the realization that no aspect of nature can be understood without examining it in the context of the systems of which it is a part. Unfortunately, this realization has been slow to penetrate the world of law and politics.
But what if we imagined a society in which our goal was to act as good citizens of the Earth as a whole?
What might a system of governance look like if it were designed to protect the rights of all members of a biological community, not just humans? Cicero pointed out that each of our rights and each of our freedoms must be limited so that others can be free. It is high time we considered limiting the rights of humans so that they cannot unjustifiably prevent nonhuman members of the community from participating in life. Any legal system that was supposed to give effect to modern scientific knowledge (or even the knowledge of many ancient cultures) about the workings of the universe would have to prohibit humans from driving other species to extinction or from deliberately disrupting the functioning of major ecosystems. In the absence of such regulatory mechanisms, an oppressive and self-destructive regime would inevitably emerge. And that is what has happened.
In particular, we should examine the fact that corporations are considered people in the eyes of the law and are entitled to civil rights. We often forget that corporations are only a few centuries old and have been evolving ever since their inception. Imagine what could be done if we changed the fiduciary responsibilities of corporate directors to include duties not only to profitability but also to the natural world as a whole, and if we imposed on corporate managers and shareholders collective personal responsibility for repairing all the harm they do to the natural community. Imagine that landowners who abuse and degrade the land were to lose their right to use it. In an Earth-centered community, all the institutions through which people act collectively would be designed to require behavior that is socially responsible from the perspective of the community as a whole. A society concerned with preserving the integrity or wholeness of the Earth must also refine its ideas about what is “right” and what is “wrong.” In order to approve or disapprove of human action, we may find it more useful to consider the extent to which a given action enhances or detracts from the health of the community as a whole and the quality or intimacy of relationships among its members. As Aldo Leopold’s famous earth ethic states, “a thing is right if it tends to preserve the integrity, stability, and beauty of the biotic community. It is wrong if it tends to the opposite.” From this perspective, individual and collective human rights must be contextualized and balanced against the rights of other members and the Earth community.
ON SEPTEMBER 19, 2006, the municipality of Tamaqua, Schuylkill County, Pennsylvania, adopted a sewage sludge ordinance that recognizes natural communities and ecosystems within the municipality as legal entities for the purposes of enforcing civil rights. It also strips corporations that apply sludge to land of their right to be treated as “persons” and, therefore, of their civil rights. One consequence of this ordinance is that the municipality or any of its residents may sue on behalf of the ecosystem for damages and punitive damages for any harm caused by the application of sewage sludge to land. Any damages so awarded must be paid to the municipality and used to restore those ecosystems and natural communities.
According to Thomas Linzey, an attorney with the Community Environmental Legal Defense Fund, which helped Tamaqua, the ordinance is the first time in the history of municipalities in the United States that something like this has happened. The ordinance, which comes after more than 150 years of court-approved expansion of the legal powers of corporations in the United States, is more than extraordinary—it is revolutionary. In a world where the corporation is king and where all life forms except humans are objects in the eyes of the law, this is a small community Boston Tea Party.
These small examples, these nascent shoots of what we might call “earth democracy,” are emerging despite adversity. It is quite possible that Earth-centered legal systems will have to grow organically out of human communities that understand that they must function as integrated parts of larger natural communities. In the face of climate change and other enormous environmental challenges, our future as a species depends on humans creating a legal and political space within which our connection to the rest of our community here on Earth is recognized. The day will come when our laws that do not recognize the right of rivers to flow freely, that do not prohibit actions that destabilize the Earth’s climate, or that do not impose an obligation to respect the natural value and right to exist of all life, will be as reprehensible as allowing people to be bought and sold. We will only thrive if we change these systems and claim our identities and take responsibility as members of the larger Earth community.