The controversial case for extending “legal personhood” to nature

Legal systems have historically provided protection, promoted interests, and offered retribution in pursuing justice and addressing injustices. Central to these systems is the concept of a “legal person,” an entity that can hold “standing” in the judicial system. Traditionally, this status has been reserved for human persons, community-based organizations, and economic actors like corporations.

Yet, what constitutes a legal person is a social construct that has changed over time. This fluidity is evident in cases such as the US Supreme Court’s decision in Dred Scott v. Sandford (1857), where it was declared that African Americans, enslaved or free, could never hold standing in a court of law as legal persons. This ruling allowed enslavers to continue terrorizing enslaved and free African Americans with impunity. It wasn’t until the passage of the Fourteenth Amendment to the US Constitution that all human beings born on US soil were considered legal persons, endowed with civil rights and standing in a court of law.

As scholar Jens Kersten notes, “the recognition of nonhuman actors as legal persons with subjective rights” isn’t a new idea; however, the concept of legal personhood is often driven by the interests of the ruling class. Extending legal rights to the natural world means circumventing obstacles put in place by those whose interests are served by denying that plants and animals, for instance, can be considered persons.

We’ve seen this conflict play out multiple times in the US, as cases have been brought against municipal and state governments over environmental harms that affect surrounding communities. Currently, protections for nature through the American legal system occur indirectly and are only addressed legally when they impact a legal person, usually in terms of that person’s economic prosperity or physical health. While nature has no standing in a US court, activists and Indigenous Nations have been forthright in pushing for the recognition of nature as a legally protected person with agency and rights.

Again, as Kersten points out, these demands aren’t new; in the US Supreme Court case of Sierra Club v. Morton (1972), Justice William O. Douglas argued for the standing of inanimate entities in litigation in a dissenting opinion:

Inanimate parties such as ships and corporations are considered capable of launching litigation, and so it should be as respects valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life.

For instance, in 1992 there was an attempt to include a “rights of nature” clause in the multilateral agreements emerging from the United Nations Convention on Biological Diversity. While the intrinsic value of nature was touched upon in the preamble, scholar Lakshman D. Guruswamy argues that legally binding language wasn’t included, which undermines the enforceable power of the Convention. The outcome was the prioritization of economic growth over environmental protection and a denial of responsibility for damage to the global commons of any sovereign nation. But that hasn’t stopped the rights of nature from being cemented in law worldwide.

The concept of giving nature legal personhood has received renewed attention and energy from the environmental justice movement, but much contention remains. There are numerous global examples of sovereign states and Tribal Nations within settler-colonial states embedding the Rights of Nature within their own legal frameworks. As scholar María Valeria Berros argues, the Constitution of Ecuador is a pioneering example of legal recognition of nature’s rights. It states:

Nature, or Pachamama, where life is reproduced and occurs, has the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions, and evolutionary processes. All persons, communities, peoples, and nations can call upon public authorities to enforce the rights of nature. To enforce and interpret these rights, the principles set forth in the Constitution shall be observed as appropriate. The State shall give incentives to natural persons and legal entities and to communities to protect nature and to promote respect for all the elements comprising an ecosystem.

This constitutional provision places the burden of proof on operators to demonstrate that their activities do not harm nature in a court of law. This is what scholar Atus Mariqueo-Russell defines as the “precautionary principle.” In the context of environmental law, the precautionary principle deems that activities must be demonstrated to be sufficiently safe for nature and human health to continue.

In the case of New Zealand, articulates scholar David Boyd, long-standing negotiations between the Māori and the government, pursuant to the 1840 Treaty of Waitangi, have produced remarkable settlements. The Whanganui River was granted the rights of a legal person through the Te Awa Tupua (Whanganui River Claims Settlement) Act 2017. Similarly, Te Urewera National Park was transformed into a legal person holding title to a large region of forests, mountains, and lakes under the Te Urewera Act 2014. Both laws require the appointment of human guardians to represent nature’s interests according to explicit principles.

Granting legal rights to nature could have profound implications for climate action and environmental protection. It would shift the legal framework from viewing nature as an object of commodification to recognizing it as an entity with its own rights and intrinsic value. This could lead to more stringent environmental protections and a greater emphasis on sustainable practices, as nature’s rights would need to be considered in decision-making processes. Legal systems around the world face a choice: to regard nature as a legal entity with rights or to continue treating it as an object subject to commodification. Embracing the former could foster a more harmonious relationship between humans and the environment, promoting long-term sustainability and justice for all beings.

This article appeared on JSTOR Daily, where news meets its scholarly match.