As the lesson neared its end, Christopher Stone could feel the attention of his class waning. They were discussing property law. He needed something to lasso them back in. He floated an idea: what if nature – animals, mountains and rivers – had rights? The question provoked uproar. Afterwards he wondered what he’d said. How could a tree have rights? The desire to answer his own question led him to write his landmark paper “Should Trees Have Standing?”
Published in 1972, it makes a compelling and rational argument for the law to morally evolve to better protect the interests of other-than-human beings. Given the converging crises of biodiversity loss, mass extinctions and a changing climate, it seems our current laws are manifestly failing to safeguard our environment. Stone’s ideas are now more urgent than ever. What if a river could sue its polluters and win damages to pay for its restoration?
Stone’s essay explores the historical expansion of rights, beginning with different categories of people. He notes that children were once considered the property of their fathers, women the property of their husbands, and slaves the property of their owners. All eventually became persons by the law. Stone wrote: “The fact is, each time there is a movement to confer rights onto some new ‘entity’, the proposal is bound to sound odd or frightening or laughable. This is partly because until the rightless thing receives its rights, we cannot see it as anything but a thing for the use of ‘us’ – those who are holding rights at the time.”
There is still a bedrock belief, imbued in legal systems, that everything else in nature constitutes our property. The influential 18th-century jurist William Blackstone, author of the Commentaries on the Law of England, wrote: “The Earth, and all things herein, are the general property of mankind, exclusive of other beings, from the immediate gift of the creator.”
Stone was proposing a legal corrective to man’s relationship to the rest of nature. What came as an epiphany to Stone chimes with ancient ways of understanding our place in the world and our relationship to all that surrounds us. It shouldn’t need saying that every breath we take comes from plants, every drop we drink runs from rain, rivers and streams and every bite we eat originates from seeds and animals. We are inseparable from the land on which we depend. We are interconnected with all other life forms. This deep truth is too often obscured by a sense of human exceptionalism and superiority.
Yew trees can live for over 4,000 years. In Britain, we have hundreds of these ancient trees. Yet these living links to our history have less legal protection than listed buildings, even though they may outlive the churches in whose churchyards they can often be found. Arguing for nature to be granted rights, Stone warns, “It is no answer to say that streams and forests cannot have standing because streams and forests cannot speak. Corporations cannot speak, either; nor can states, estates, infants, incompetents, municipalities or universities. Lawyers speak for them.”
Stone references the fact that in 1886 “bold and imaginative” lawyers convinced the US Supreme Court that a railroad corporation was a person under a constitutional provision. Today, corporations enjoy extensive rights as legal persons. What does it say about our culture that we accept this legal reality without blinking but balk at the idea of natural phenomena being accorded similar status?
As Stone was publishing his thesis, the environmental organisation the Sierra Club were trying to prevent construction of a leisure complex in Mineral King Valley, a wilderness area in California’s Sierra Nevada mountains. When the hearing came to the Supreme Court, one of the judges, Justice William Douglas (who had read Stone’s work), said that just as inanimate objects like ships and corporations could be parties in litigation, so valleys, meadows, rivers, lakes, beaches and swampland should be able to sue for their own preservation. Though it was a minority view, the endorsement of such a senior judge carried Stone’s idea to new audiences and ensured its fame ever after.
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Decades later, it is indigenous people who have brought this idea to fruition. In 2017, the government of New Zealand passed legislation which recognised the Maori’s Whanganui river as a legal person. The Maori see all forms of nature as their kin. This is encapsulated in their saying: “I am the river and the river is me.” The new legislation recognises the Maori’s holistic concept of the river as Te Awa Tupua (river of sacred power), defining it as “an indivisible and living whole from the mountains to the sea, incorporating the Whanganui river and all of its physical and metaphysical elements”. Two individuals will serve as the river’s official guardians, one chosen by the Maori and one by the government, and they will speak on behalf of Te Awa Tupua.
The river’s newfound legal status prompts the question of where it begins and ends. For the Maori, it begins in the mists swirling above the mountains and valleys. In David Freid’s beautiful short documentary The River Is Me, there is a remarkable exchange between the director and the government minister who negotiated the treaty, Christopher Finlayson, who says: “The fact of the matter is you can’t divide a river up into the bed, the water column, and the air above the river – I think you can get hung up on these western concepts of ownership.”
Freid posits that since the river’s water comes from the rain and the rain falls through farmland and city streets, now that the river is indivisible, perhaps everything that water touches along the way might eventually gain the same personhood. “I suppose that’s right," Finlayson says, "in so far as the water is part of this indivisible entity that will flow in and flow out.”
So then the larger idea, Freid suggests, is that all of nature in some way or another gets spoken for. Finlayson looks unabashed. “When you think about it, why not?”
It’s a thought that hangs heavy in the air.
Other victories for the rights of nature have sprung up all over the world. In 2019, Bangladesh became the first country to grant all of its rivers the same status as humans, and decreed that the National River Conservation Commission will speak for the rivers. Ecuador and Bolivia have enshrined the rights of nature in their constitutions. Communities across the US, starting in Pennsylvania, have also put in place rights for nature at a local level by passing local ordinances (akin to British bylaws). David R. Boyd documents many of these moments in his book The Rights of Nature: A Legal Revolution That Could Save the World.
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Of course, legislation is worth little without enforcement and it remains to be seen how effectively natural rights will be defended. The fear that granting trees, rivers and animals rights could unleash a tsunami of litigation has proved unfounded. Legal representation costs money which nature itself doesn’t have, and its defenders are underfunded. An inequality of power persists. The new progressive constitutions in Latin America haven’t stopped extractive industries. Local ordinances in the US can be overridden by state diktat.
Coming from a different direction, looking at criminal rather than civil law, another group of activists is proposing a criminal law at the international level to prevent ecocide. Ecocide means the destruction of ecosystems –harm to nature which is widespread, severe or systematic. They want to see ecocide added to the Rome Statute, the founding document of the International Criminal Court, to become the fifth major international crime alongside genocide, crimes against humanity, war crimes and crimes of aggression.
Jojo Mehta, director of the Stop Ecocide campaign, sees common ground with the rights of nature movement. “We see them as two sides of the same coin. Rights are only half the story. Your right to life is protected by the crime of murder and we’re aiming for the same effect.”
Stop Ecocide’s founder, the late Polly Higgins, once asked the head of a bank why they continued to fund damaging activities and he reasoned, “It’s not a crime.” Mehta explains that criminal law draws a line between what our culture accepts and what it doesn’t. In other words, new criminal law can change the culture. Different decisions might be made in boardrooms and cabinet offices across the world and investment might flow in a more ethical direction. And if ecocide is proposed as an amendment to the Rome Statute, that in itself would put companies and governments on notice that they could become liable for prosecution.
Mehta highlights the advantages of working at the international level: states are fearful of putting themselves at a disadvantage. “But we’re saying, consider supporting this at the international level and if it moves forward then it will be a big move with the international community all moving together,” she says.
There is growing support for the idea. Last year low-lying island nations Vanuatu and the Maldives, on the frontline of climate chaos and rising sea levels, called for the criminalisation of ecocide to be given serious consideration at the Hague. In June 2020, French President Emmanuel Macron said he would work at the international level to introduce a crime of ecocide. Pope Francis has also called for ecocide to be added to the Rome Statute.
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A desire for greater ecological justice is slowly percolating through popular culture, from the Pope to leading literary luminaries. Our relationship with the natural world is so dangerously dysfunctional right now that a wholesale cultural transformation is needed to help pave the way for more protective laws. One writer deeply engaged with this task is Robin Wall Kimmerer, a professor of environmental biology in New York and member of the Citizen Potawatomi Nation, whose books Gathering Moss and Braiding Sweetgrass have awoken new ways of thinking in her devoted readers. In a recent interview, she said that she sees her work promoting a growth in values of justice: “That’s where I really see storytelling and art playing that role, to help move consciousness in a way that these legal structures of rights of nature makes perfect sense. I dream of a day where people say: ‘Well, duh, of course! Of course those trees have standing.’”
It’s hard to think of a more glowing example of the transformative potential of a novel than The Overstory by Richard Powers. Powers describes one character, Ray, an intellectual property lawyer, wrestling with Stone’s essay “Should Trees Have Standing?” Ray tells his wife whilst reading it, “I don’t know whether to throw it across the room and laugh or to set it on fire and kill myself.” Suddenly, Ray’s “entire career until this moment – protecting the property of those with a right to grow – begins to seem like one long war crime, like something he’ll be imprisoned for, come the revolution. . . His whole self is dissolving.”
Whilst Powers’ character doesn’t know how to respond to Stone’s thesis, Powers himself is unequivocal about the huge impact it’s had on his thinking. He told me: “Stone’s essay and the shift in consciousness that it has helped to bring about has forever changed my sense of the possibilities and purpose of art. For a long time, we’ve lived as if we can treat the rest of the living world as a commodity, and our novels have tended to reflect that indifference or contempt. Now we are beginning to remember that those ‘commodities’ are in fact our only available community. Without such a community, no story makes sense or yields meaning. And I believe that shift in our understanding is growing inexorably. As Stone put it, so many years ago: ‘As radical as such a consciousness may sound today, all the dominant changes we see about us point in its direction.’”
Shaun Tan’s illustrated novel Tales of the Inner City includes a surreal but telling story in which bears have lawyers and sue humankind in an epic class action: Ursine vs Homo sapiens. In Tan’s imagining, Human Law is not the only legal system on the planet and Bear Law takes precedence in most cases. Dragging “various bits of primeval forest” into the courtroom as evidence, the bears “exposed the shallowness of every Human Law as presumption, ignorance and hubris. That wasn’t the worst of it. Deep in our hearts we knew they were right.”
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Paul Powlesland, founder of the UK-based group Lawyers for Nature, was working in civil commercial law and engaging with environmental activism in his spare time when he decided to connect the two and bring his legal practice into alignment with his values. “We’re fundamentally going to destroy everything unless nature has rights,” he says. Wherever there’s money to be made in destroying a habitat, he points out, an army of corporate lawyers will line up, handsomely paid, to defend such destruction. “Hundreds of lawyers represent commercial entities. There should be lawyers for birds, lawyers for trees, lawyers for rivers.”
Powlesland acknowledges that this vision feels a long way off but he’s impatient for change. He notes that we’ve been talking about rights for nature for decades but in the UK, at least, they’re no closer to fruition. “We need to start making these rights manifest in any way we can.” He has some practical ideas about how to do so. One entails civil disobedience to protest the law as it stands, another involves using existing law to its full effect.
Powlesland advised and represented residents in Sheffield who managed to save thousands of street trees from being chopped down by the council. They patrolled their streets and obstructed the cutting. He’s inspired by their show of people power. “The New Zealand parliament only enacted legislation because it was demanded by indigenous people. The law said trees in Sheffield have no rights and you have no right to stop them being cut. But a few hundred people thought differently and acted differently. The council got injunctions but people broke the law and stayed on the streets. I don’t think the law in this country is willing to imprison civil citizens, especially elderly ones, who are standing under trees.”
Powlesland has also established the River Roding Trust and a Friends of the River Roding group to restore his local river. He’s scouring environmental legislation to collate the existing rights of the river, pointing to laws against litter and sewage inputs. “We’re working out the rights of the river and we’ll then act as friends of the river to enact them. If parliament gave all rivers rights tomorrow, you still might not get enforcement. But a Friends group like ours could be more effective in acting as guardians for the river. Given a choice, I’d choose the latter. It’s more empowering and provides a way of enforcing the rights of a river now.”
Speaking by phone, Powlesland is sitting on a riverbank with his feet steeped in the water. He suggests that restoring our relationship with a river may be the key to restoring the river itself and winning it greater legal protection. Perhaps missing law is a symptom of our lost connections. If we can learn from the Maori’s connection to their environment, the legal ripples from the Whanganui river may lap against our shores.
From the autumn 2020 edition of New Humanist.
