The Orcas Win in Court!
This ruling fills me with jubilation. In my 1998 book The Living Beach, I took a look at the idea that natural phenomena should have legal rights. Bolivia has passed a landmark law on this topic — and here's a Canadian court asserting the duty of Canada to protect the habitat of a wild animal.
Geologist Stanley Riggs suggests that we might begin by giving legal rights to beaches and other natural objects. He proposes that beaches themselves should have legal standing in the courts; they should become "jural persons," with rights which the courts would be obliged to consider. The idea is disorienting at first, but then so is the present situation. If I sue my neighbour over ownership of some dune land, is there not something absurd about the fact that the law considers my interests and my neighbour's, but not those of the dunes? Surely Gaia is also a party to this dispute.
Of course, the courts already consider the legitimate interests of persons who are unable to speak for themselves — infants and the mentally incompetent, for instance. Other entities which are,literally, legal fictions are "persons" in the courts, including corporations, trusts, estates and nations. In many jurisdictions, animals have at least minimal rights, such as the right not to be
treated cruelly. Even ships are sometimes treated as jural persons.
If a ship or an estate, why not a beach, a mountain, a stream?
"Throughout legal history, each successive extension of rights to some new entity has been a bit unthinkable," writes Christopher Stone, a law professor at the University of Southern California, in Should Trees Have Standing? Towards Legal Rights for Natural Objects. It was
Stone's provocative essay which prompted Riggs to propose rights for beaches. "We are inclined to suppose the rightlessness of rightless 'things' to be a decree of Nature," says Stone, and "not a legal convention acting in support of some status quo."
This is the critical consideration in Stone's argument; the dividing line between property, with which we have no ethical relationship, and things-with-rights, with which we do. There is no
"natural" boundary between them; the border reflects a social consensus, usually unvoiced. We are usually not aware of the consensus any more than a fish is aware that it lives in water.
Things without rights, says Stone, are mere property. One can do what one wants with property — neglect it, alter it, give it away,destroy it. A property-owner's rights confer privileges, but no obligations. If something has rights, however, we may not do anything we like to it; we have an obligation to treat it according to a set of rules adumbrated and often enforced by a third party.
The history of Western law shows a steady migration of items of property into the category of things-with-rights. In Roman law, a man had absolute power over his children, even to the point of denying his paternity or putting them to death. In 1858, a US court could say explicitly that "a slave is not a person, but a thing." Blacks, natives, Jews, Chinese, women (especially married women), animals — all of these have at various times been considered property, and have
been denied the most basic of rights. In the industrialized West, all of them have a substantial basket of rights today, though not always a full basket of identical rights.
We may hear an echo of Santa Fe here. As order and organization spread, as evolution moves into the social and cultural plane, our range of ethical relationships broadens. More and and more of our property relationships are transformed into ethical relationships.
Stone argues that natural objects should have at least three basic rights: the right to institute legal action at their own behest; the right to have injuries to them taken into account in determining legal relief; and the right to benefit from that relief. Since trees and beaches cannot exercise those rights themselves, individuals or groups should be able to apply to the court for legal guardianship, and for the right to litigate on behalf of the natural object.
Is it necessary, though, to extend rights to natural objects in order to have their interests protected by the courts? Perhaps not, says Stone, but legal terms like "rights" have meaning in informal speech, and those meanings provide the context of legal discourse. Furthermore, "judges who could unabashedly refer to the 'legal rights of the environment' would be encouraged to develop a viable body of law — in part simply through the availability and force of the expression." The new set of rights could prompt the courts to perform "the very task that is called for: of summoning up from the human spirit the kindest and most generous and worthy ideas that abound there, giving them shape and reality and legitimacy."
Stone's whole essay expresses the growing consciousness of our need for an ethical relationship with nature, and a plea that we start to think in less "homocentric" terms. We are not protecting natural objects for future generations; we are protecting them for themselves. The environment does not exist for man; it may be that man exists for the environment.
It is a powerful argument, and an alluring one. It represents something practical which we could do tomorrow, a concrete step towards genuine stewardship of the natural world.