Wild Law
Wild Law
On the emergence of Earth-centred legal discourse
Rights of Nature (RoN) recognises the rights of ecosystems such as trees, oceans, animals, and mountains. Because all species and ecosystems are interconnected, Nature's rights balance what benefits humans, other animals, and the earth. It recognises the right of natural lifeforms to exist and regenerate their vital cycles. And we, as humans, have the legal authority and responsibility to enforce these rights on behalf of ecosystems.
In recent years the RoN concept has emerged in legislation, judicial rulings, and constitutional amendments in countries such as Canada, Mexico, France, Colombia, Pakistan, Bangladesh, Bolivia, India, New Zealand, Ecuador, and Uganda. There have been at least 410 legal provisions recognising eco jurisprudence across 41 countries and numerous international policy documents, ranging from the constitution, national laws, court decisions, local regulations, policies and indigenous law.
These rights provide nature and other forms of life with human-like rights. In addition, a United Nations program called Harmony With Nature has helped to coordinate and advance the movement, with nongovernmental organisations taking the lead. A quick skim of the latest developments in Earth Jurisprudence is impressive.
But why should we consider these arguments?
Thomas Berry has been a major inspiration for the growing legal movement known as Wild Law or Earth Jurisprudence. Berry notes, "every component of the Earth community, both living and nonliving, has three rights: the right to be, the right to habitat or a place to be, and the right to fulfil its role in the Earth community's ever-renewing processes." Thus, central to this movement is the understanding that the interdependence of all things justifies recognising the moral value and legal rights in all of nature.
So, what are the arguments for the RoN?
Epistemic
Earth jurisprudence aims to align the law with Earth system science findings on anthropogenic impact. We can now understand and model large-scale earth system processes and metabolisms at unprecedented resolutions and scales. Building on Lovelock and Margulis' Gaia hypothesis, which models Earth as a self-organising system, scientists have increasingly treated Earth as a single, integrated system.
Also, it is epistemically richer as it accounts for indigenous lifeworlds i.e. the “ontological, epistemological, and cosmological framework through which the world appears to a people", which differs from the liberal constitutionalism of modern western states. This epistemic framework is based on a relational understanding in which interspecies relationships are law, rather than just the spaces to which law is applied.
Moral (Nature ≠ object)
There is a long history of human rights law that aims to preserve the natural and imprescriptible rights of man: from the 1776 American Declaration of Independence to the United Nations Universal Declaration of Human Rights, recognising the inherent dignity of all humans. Many of these rights are not yet a reality for many people, but the declaration provides a moral blueprint for more-just societies. These expressions of natural human rights provided a vocabulary for arguing that slavery and other rights violations were wrong.
However, legal systems worldwide have treated land and nature as "property" for millennia. Individuals, corporations, and other legal entities have property rights protected by laws and contracts. Environmental protection laws legalise environmental harm by regulating how much pollution or destruction of nature can occur within the law. Under such law, nature and its non-human elements have no standing.
The posthuman turn and the new moral arguments brought to light the rights of many non-human entities (the most obvious example is animal welfare). Therefore, by legally recognising nature's rights, we are establishing environmental protection systems on the premise that nature, like humans, has inalienable rights.
Spiritual
Other rights arguments are based on religion and spirituality. There are approximately 370 million indigenous peoples in the world. They own, occupy or use up to 22% of the global land area, which is home to 80% of the world’s biodiversity. Recognising nature's rights is consistent with indigenous cultures' traditions of living in harmony with nature; existence is interconnected, and decisions and ideals are founded on what's beneficial for the whole.
It also combines Western rights principles with non-Western spirituality to repair a previous usurpation of nature. For example, New Zealand recognised the Whanganui River as the legal person Te Awa Tupua due to a treaty with a Maori tribe and their spiritual connection to the river.
Pragmatic
Human governance systems are failing to protect the natural systems and processes that support life. Most modern governance systems, unfortunately, facilitate the exploitation of the earth and frequently allow the interests of property-owners to prevail over the commons. Additionally, our existing legal entities have been complicit in repealing critical environmental regulations (more recently, the loosening or eliminating 90 environmental rules and regulations in the US).
The rights of nature might protect the environment in ways other kinds of environmental law don't. For example, species whose existence may conflict with human activities would not be protected by the right of humans to a healthy environment. Conservation laws, such as the Endangered Species Act, can help to protect species, but they do not grant them the right to exist. As a result, this safeguard can be removed at the whim of the legislature. If, on the other hand, species rights were recognised, species or their representatives could sue for damages when they were hurt, even if laws didn't explicitly protect them or if their needs conflicted with human needs.
Harmony with Nature
What if we reimagined human laws from an Earth-centered perspective? What would mean if we saw the Earth as a living community of subjects rather than a collection of objects?
Rights of Nature laws necessitate a fundamental reorientation of the global economy, requiring us to uphold ecological design and boundaries of nature. Recognising Nature's rights implies that human activities and development must not impair ecosystems' ability to absorb their effects, regenerate, thrive, and evolve. For example, current extractive practices, such as mountaintop removal for coal extraction, which destroys entire ecosystems, or industrial activities that pollute ecosystems or the atmosphere would be categorically illegal.
As a result, implementing a Rights of Nature framework would encourage an economic transition to renewable energy, a reduction in greenhouse gas emissions, resource investment in energy efficiency, and regenerative agriculture. Corporate actors would be held accountable for negative environmental impacts, encouraging economic models and practices that respect natural limits and laws.
Objections
Legal redundancy
Critics of the LoN argue that criminal and public law already protect nature and may be more robust than rights-based moves, which are often quickly challenged or reversed. Similarly, today's animal protection laws, such as the Animal Welfare Act and the Endangered Species Act, regulate animal use and abuse but do not question their fundamental legal status.
Undesirable effects
According to some lawyers and philosophers, granting legal personhood to something other than a human being is a category error that can cause more problems than it solves, especially when the plaintiff's right to personhood becomes a liability risk.
For example, critics note that corporations have legal standing, so it may be undesirable for e.g. an Amazon river to have a legal relationship with Shell. If a river can sue a factory for polluting it, can a developer sue that river when flood water damages the factory? Fossil fuel firms have sued governments worldwide for £13bn as climate policies threaten profits; I don’t think they will shy away from pushing back on future Rights of Nature regulations.
What about the duties?
Legal rights correspond with legitimate claims and entitlements. Nature lacks rights and duties, cannot recognise the rights of others and does not recognise rights between different parts of nature. A landslide, for example, that uproots a forest does not violate the rights of the tree community. Even if the landslide kills people, their human rights are not violated.
Outside of human moral or legal analysis, the rights framework makes little sense, and it only applies to human interactions with nature, imposing duties only on humans. The most suitable legal category for nature might be a claim right, defined as "claims correlative to other people's duties." Earth rights provide motivation for people who can safeguard that right.
Guardianship
Anthropomorphism is central to the natural rights movement. Instead of "legal mountains" and "legal rivers," mountains and rivers must become "legal persons." Because a river cannot appear in court, a human proxy must inevitably launch an action to assert nature's rights. Guardians with relevant experience could be nominated as representatives, like for incapacitated humans. This raises many practical questions:
What happens when people disagree on what's best for ecosystems or species? How do we identify who is "right," who can speak for another living being, and whose interpretation is correct? What is the party attempting to obtain on behalf of the injured entity? How are these damages determined? Is the appointed guardian liable if a river floods and causes damage?
These feel riddled with subjectivity. Interdisciplinary techniques are needed to establish when natural entity rights are violated, how to remedy them and determine the answers to these questions. (for some good work on attribution science — see the Climate Attribution Database)
More practical and philosophical puzzles
The rights of nature raise countless practical and ethical riddles. Practically, Peter Urdon presents this case:
Consider a situation where river rights are recognised in the context of a small community whose major employer pollutes directly into the river. Many townspeople do not report this offence for fear of losing their jobs. However, it is clear that the pollution is destroying the river ecosystem. In this example, three interrelated things are happening.
First, the river‟s right (or freedom) not to be polluted is being violated. This is clearly the principle wrongdoing in this example. Second, the company is violating the right of the river to be free from pollution. This is a violation of their “perfect obligation”. Finally, the townspeople who are doing nothing to stop the pollution are also transgressing their general and imperfect obligation to provide any help that they could reasonably provide. These distinct issues illustrate a complex pattern of rights.
It becomes even more complex in cases of transboundary ecosystems and effects. For example, who has a say over a transboundary river, such as in India, where the Ganges river extends beyond the border of Uttarakhand? If a complaint alleges climate change is a threat, how much liability do a specific industry’s activities bear in that respect?
Other philosophical riddles are raised by Astra Taylor.
Should invasive species have equal protections? What about the rights of prey against predators? Where does a watershed end if all ecosystems are interconnected?
Or, Alexa Firmenich asks:
if rights originate where existence originates, how do we define existence itself? Is a cancer cell a living being, and if so, does it have a “right” to kill its host? Or does the host have the right to flourish and survive? How do we define the rights bearer in such situations, scaling for different sizes of organismic complexity and intelligence?
But is it effective?
Giving nature legal standing may protect it from harm under the law, but does that work in practice?
To this day, I think ecosystems' legal personhood has largely been symbolic, and it is unclear how successful these lawsuits will be in obtaining adequate, long-term protection for ecosystems.
Kauffman and Martin did a large-scale empirical study of Ecuadorian case law. They found that the Rights of Nature have been put into practice in four ways: through pressure from civil society, instrumental government action, bureaucratic institutionalisation, and judicial application. Nature's rights had been affirmed in 100% of cases driven by state agendas but in only 40% of cases driven by civil society. This reveals much about the power and motivation of states, both to use the Rights of Nature to serve state agendas and to use them for national economic development.
Moreover, the outcomes of a case vary depending on how it is framed, the claimants' interests and the broader protection context. For example, there is a plethora of mechanisms and policies already in place to protect the integrity of nature, ranging from protected areas, offsets, conservation NGOs, taxation, green financial products and other effective area-based conservation measures (OECMs). Thus, it’s important to create more evidence and comparative analyses and understand how RoN compare against other conservation measures.
Towards deep legal pluralism
I’m excited about the following opportunities presented by the Rights of Nature framework:
New governance design spaces
The idea that nature can be valued economically as a service provider dominates contemporary policy discourses on environmental governance. The language of natural capital and ecosystem services reflects the classical economics language of stocks and flows. Natural capital is a stock valued through market exchanges; it can be kept as capital or sold as inventory. For example, trees can be used as wildlife habitats or as wood.
This framing not only fails to encourage a plurality of ways in which we engage in economic interactions, but it also fails to cultivate alternative ways of interacting with one another and the life around us.
I believe RoN can create pluralistic design spaces for new governance and interactions. What if we governed natural metabolisms instead of stocks? All species are woven into large biophysical flows of energy and matter. What would planetary care look like if we took these dynamics into account across scales?
Or, for example, in France, regional partners of the Loire Region are debating establishing the first parliament for the Loire River, where fauna, flora, and organic and inorganic elements will be represented. This initiative was inspired by New Zealand's Whanganui River and Colombia's Atrato River. What sort of power-sharing arrangements could be developed between states, people and other living entities?
Science enabled guardianship
A fundamental question to effectively operationalise the rights of nature is how to define the rights bearer, i.e. nature. Rivers, ecosystems, natural communities, glaciers, species, and the animal kingdom have recognised rights, but each has definitional difficulties.
An approach may be to develop ecologically informed requirements and indices for natural entities to become rights holders, similar to the incorporation process for firms. Science can evaluate species' habitat needs, ecological functions, community structures and evolutionary processes.
It’s also possible to automate and deploy these analyses together with AI Oracles that verify and help advocate on behalf of critical global commons areas like rainforest bioregions and corals. Or such systems can work alongside other governance mechanisms to inform and intervene on behalf of their ‘victim’.
More scalable governance mechanisms
Recently, there has been a lot of excitement in the web3 and crypto communities, also known as regenerative finance (refi). The broad aims of the refi movement are to stabilise the climate through immutable carbon markets, restore ecosystems whose value is likely to be exchanged via carbon market infrastructures and regenerate local communities. John Elison from Toucan writes:
We can now create transparent, programmable and digital representations of physical objects and even living beings—we can now create planet-positive money. Carbon is just the beginning. ReFi needs to harness this opportunity to protect and restore natural capital—including grassland, forests, coral reefs and all other essential habitats.
Web3 has the potential to tip the balance towards rewarding actors who conserve biodiversity and are not adequately rewarded financially.
However, natural “capital” is not appropriately valued by financial markets unless it has a cash flow or asset value that can be measured by current economic systems. Because biodiversity provides benefits that are public goods and biodiversity ownership is generally unclear, the market will generally undervalue biodiversity. Also, Web3 applications don’t do anything for perpetrators of biodiversity damage.
For these reasons (and also philosophical, moral and spiritual reasons described above), we cannot rely on hyperfinancialised models of nature or market forces to solve the problem of biodiversity loss. We need policies and laws for financial penalties and natural protection. This is where I think Rights of Nature can complement the Refi project.
Earth is a self-regulating organism that sustains life through a complex web of processes; it can (and should) inspire new laws and ethics. The goal should be to find context-specific power-sharing solutions that protect and respect Nature, human rights and relationships with the Earth, and legal and cultural diversity.
Nature and human activities come into conflict on a massive and systematic scale. When people and corporations have rights but nature does not, nature frequently loses, as we see in the continued deterioration of the environment. The rights of nature may be able to help prevent this one-sided outcome.