Law is probably the most human of institutions. Legal systems have underpinned human activity for thousands of years and are now a globalised force that determine mostly everything we do: Trade, criminal activity, marriage (and divorce). There are well over a hundred specialties of it, including ‘Art Law’, ‘Internet Law’ and ‘Medical Law’. Decisions made behind the bench can shape our society, politics, culture and economy. The texts that emerge from courtrooms have far reaching consequences that go beyond specific countries and are truly a directive force in shaping the future.
Legal systems need to create fictions to function properly; they give non-living, incorporeal entities the status of personhood. In the eyes of the law, there are natural persons like you or me, and juridical persons, i.e. corporations. These entities are almost omnipresent in legal systems around the globe and hold rights and obligations that include the ability to sue or be sued. A juridical person must have a name and a nationality, pay taxes and has some privileges and protections. Furthermore, the 2014 US Supreme Court’s decision in Burwell v. Hobby Lobby granted religious freedom to for-profit corporations. As a consequence, and as a response to the legalisation of gay marriage, an army of bakers, florists and wedding singers started to deny their services for such ceremonies. This decision opens a Pandora’s Box for juridical persons. Where will the US draw the line on corporate religious freedom? Could companies start firing employees on religious grounds? This future is still unclear.
One critical question to ask here is if these juridical persons actually are a fiction. Are corporations now part of a wider understanding of personhood? We associate brands with values, connect with them through a variety of mediums, and grow to love them. We are sometimes moved to tears by the messages they produce using emotional marketing delivered through carefully produced audiovisuals. Humans have always been enamored with fictional persons, we admire and emulate them, be it the cunning of Odysseus or the strength of Daenerys Targaryen. Contemporary corporations assemble fanatics by the thousands, loyal customers all, who defend the ethos of their favourite company. No case is more evident than the person named Apple, born in Cupertino, California, a staple of innovation and creativity, admired by millions around the globe. People line up for days to see what this person has created, and carry its image around as a badge of honour.
A recent development regarding this fiction shows another side of the coin. A couple of legal systems in the world have established nature as a ‘person’. Ecuador has developed what is probably the most specific document regarding this subject. The Ecuadorian constitution of 2008 dedicates its seventh chapter to the rights of nature. ‘Pacha Mama’ (Mother earth for indigenous Andean communities) is recognised as where life is realised and reproduced, and it is given the right to maintain and regenerate its life cycles, structure, functions and evolutionary processes. Furthermore, any person or community will be able to demand to the authorities the fulfillment of those rights. The State also commits to the protection of nature and the promotion of respect towards ecosystems. The right to restoration is also specified as being independent of the State’s obligation to compensate individuals and collectives that depend on the affected natural systems.
New Zealand also recently gave legal personhood to the Whanganui River. This entity (The river and all its estuaries) will have two legal custodians who will safeguard its rights in a way that is reminiscent of how parents act on behalf of their children. This decision is the result of almost two centuries of negotiations between the Whanganui River iwi community and the Crown. Ecuador’s decision was also heavily informed by their indigenous population and the concept of ‘Buen Vivir’ (living well; an alternative to western economic growth). These novel legal fictions resonate with animist, ancestral ways of being. Indigenous animist tribes regarded nature as an extended human community where non-humans and humans exchanged symbols and communicated constantly. The Western divide between nature and culture was irrelevant in these societies, if such societies would have had a legal system, nature would have had a voice.
Facing the Anthropocene and expecting higher temperatures, climate change and the mass extinction of species, these new legal fictions are a relevant strategy to rein in the consequences of planetary human impacts. The recognition of the personhood of nature is categorically different from regulatory systems of natural property. Nature stops being a ‘standing reserve’ which is there to be used, and acquires agency, it quickens and vocalises to establish conversations with humans in the most human of terms: Law. In 1972, Justice William O. Douglas wrote in his Dissent in Sierra Club v. Morton: “So it should be [to have legal standing] as respects valleys, alpine meadows, rivers…or even air that feels the destructive pressures of modern technology and modern life. The river, for example, is the living symbol of all the life it sustains or nourishes…including man, who is dependent on it or who enjoys it for its sight, its sound, or its life. The river as plaintiff speaks for the ecological unit of life that is part of it.”
Legal systems flow in a constant cycle of change; societal transformations force them to change and these changes reinforce systemic shifts in our societies. A poignant example is the oppression of women; for centuries married women lost their legal status and were considered one person with their husbands. The emergence of the juridical person of nature could leverage major changes in societies around the world. Will ‘Citizen Nature’ spread to other legal systems? Will there be tensions between global legal systems brought on by trade agreements (e.g. TiSA) and ecosystems being subjects having rights? Will our understanding of nature as pure resource or aesthetic pleasure shift? Only time will tell. However, the emerging personhood of nature will surely give new meaning to “All are equal before the law”.
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