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Rights of Nature, Legal Personality, and Indigenous Philosophies
Abstract
This article investigates the relationship between legal personality for nature and indigenous philosophies by comparing two cases: the Ecuadorian Constitution of 2008 and the 2014 Te Urewera Act of Aotearoa, New Zealand. Through these case studies, the article considers the nature of indigenous relations with the concept of rights of nature, arguing that this relation is primarily strategic, not genealogical. The article engages with the concept of legal personality and shows that it is not a direct translation of indigenous conceptions, but rather a potential straitjacket for indigenous emancipatory politics. The radical character of indigenous ontologies is not fully reflected in the concept of legal personality. Furthermore, the way in which rights are granted to the natural environment is an important part of the effect such rights might have on indigenous communities. Despite some affinities between rights of the environment and indigenous philosophies, overstating the connection might constrain the radical political and legal implications of indigenous thought.
... Sui generis recognition of personhood for specific domains is conceptually problematical and potentially opposed by some First Nations as contrary to their self determination [28,100]. As discussed below, absent the particular circumstances in a decolonialising jurisdiction such as New Zealand [50], law would more usefully not ascribe rights to domains but instead construe governments, property owners and others as having duties to respect both the natural and built environments on behalf of current and future generations [97]. ...
... In the United States there have been declarations by municipal governments of personhood for domains as part of Community Bills of Rights [84,100], most prominently the city of Toledo's declaration of personhood for Lake Erie [10,56,82]. Those declarations have a rhetorical value akin to the 2021 Declaration of the Rights of the Moon but exceed the particular government's legal authority. ...
... There is one particularly challenging response to assumptions that personhood for domains is necessarily beneficial and welcomed by First Peoples or more broadly by disadvantaged residents of domains without a First Nations identity. Tănăsescu asked whether personhood was a potential straitjacket for Indigenous emancipatory politics [100]. Coombes noted issues regarding paternalism and objectification of First Peoples as a matter of Indigenous ecological nobility, commenting. ...
Recognition of legal personhood in contemporary international and domestic law is a matter of signs. Those signs identify the existence of the legal person: human animals, corporations and states. They also identify facets of that personhood that situate the signified entities within webs of rights and responsibilities. Entities that are not legal persons lack agency and are thus invisible. They may be acted on but, absent the personhood that is communicated through a range of indicia and shapes both legal and popular understanding of powers and obligations, they lack standing in judicial fora. They are signified as entities that are the subjects of action by legal persons, for example exploitation through rights regarding natural resources or commodification of ‘wild’, companion and other non-human animals. They are also signified as members of a diverse class of non-persons such as ‘nature’ and ‘the environment’. This article explores the consequences of law’s signification of personhood and the natural world before asking whether we both should and could recognise domains such as specific rivers, forests or even Antarctica as a type of legal person. Recognition might acknowledge the salience of nature in the ontologies of colonised First Peoples. It might also underpin a global response to climate change as the existential crisis of the Anthropocene. In understanding law as a matter of signifiers and syntaxes the article cautions that ostensible recognition of some domains as persons has been aspirational rather than substantive, with observers misreading the sign as necessarily transforming power relationships. The article also cautions that personhood for nature or particular domains may be contrary to the self-determination of colonised First Peoples.
... Firstly, rights-of-nature is a normative and urgent call for changing how contemporary societies relate to nature (Knauß, 2018). Secondly, rightsof-nature supports "traditional" cosmovisions and indigenous people's governance over their territories (Kinkaid, 2019;Tȃnȃsescu, 2020). These aims tie together ecological and social justice concerns (Acosta, 2010), even if the former is treated as primary, as social justice concerns are partially embedded into ecological justice. ...
... Rights-of-nature conceptualisation, meanwhile, foregrounds nature's intrinsic value and ecological justiceor justice for nature(s) (Acosta, 2010;Chapron et al., 2019). The approach is also tightly connected to social justice, as it supports indigenous peoples' territorial claims and "traditional" cosmovisions (Kinkaid, 2019;Tȃnȃsescu, 2020). ...
... For instance, the inviolable use rights associated by the respondents with rights-to-nature could be re-interpreted to guarantee not only access to a forest, but its existence. The rights-of-nature conceptualisation, meanwhile, could challenge the existing land ownership structures particularly in Upper Lapland, supporting indigenous peoples' territorial claims similarly as elsewhere that the transnational discourse has been mobilised (see Sarjas, 2020;Tȃnȃsescu, 2020). However, for the rights conceptualisations to acquire more radical content and broader local support, political mobilisation would likely be required to shift the common sense. ...
Forests, and the politics around them, are posited both as a cause of and solution to the contemporary ecological crisis. This paper explores how rights to forest and rights of forest conceptualisations can re-articulate, and potentially challenge, the problematic dominance of capitalist forest politics in Northern Finland and beyond. Conceptually, the paper combines the debates on rights-to-nature and rights-of-nature. Rights-to-nature is concerned with how people can access and use nature to support their lives. Rights-of-nature, meanwhile, highlights the nature’s intrinsic value and the rights of indigenous peoples. Combining the two perspectives might allow imagining politics of nature that is both ecologically and socially just. Empirically, the paper studies forest politics in Tornio River valley in Northern Finland through an ethnographic case study. The rights-to-nature conceptualisation associates locally with the existing use rights and ownership rights. Rights-to-nature may guarantee access to a forest, but it does not guarantee its existence. Rights-of-nature, meanwhile, associates with strong conservation, nature’s power, and indigenous land rights. However, also the rights-of-nature conceptualisation is unlikely to challenge the gradual degradation of most Northern forests, as these “boring” forests lack both recognised human stewardship and intrinsic value. Thus, in the study area the rights conceptualisations do not decisively challenge the existing forest politics, even if the framings can acquire a more radical content. Overall, this paper shows that transnational rights discourses and conceptualisations entangle with local common senses. Factoring in the local understandings is essential for re-articulating politics of nature that could receive broad local support.
... Take the practice of Ecuador as an example. It is the world's first country to include RoN in its constitution, but the wide variation in outcomes between its extant RoN cases reveals "the problems inherent in a formulation of nature's rights based on a universal subject" [89], and also indicates that for RoN to produce real environmental impact, certain obstacles such as politicization must be overcome first [90] (p. 138). ...
... Third, even if the RoN approach is effective to a certain degree, it cannot persuasively demonstrate that tort law alone is sufficient for environmental remediation, for the majority of existing RoN cases are not based on tort law, but on constitutional law or administrative law. What is more important is that the legislation on RoN, such as that of Ecuador and New Zealand, is founded in a specific political context, and is considered as "a historically contingent experiment in the ongoing pursuit of greater indigenous political authority" with no environmental results embedded in it [89] (pp. 446, 452). ...
... Even French law is seeking to overcome the challenges that these issues present [135] (pp. [88][89][90][91][92][93][94][95][96]. Such a situation leaves much space for the role of the environmental law system. ...
The recognition of the intrinsic value of the environment and natural resources contributed to the establishment of liability for damage to the environment per se, which, coupled with the traditional environmental tort liability, constitute the double facets of environmental civil liability. Although the two facets share some common characteristics, their distinct focuses indicate that they cannot be fully covered by tort law or environmental law systems alone. As a result, an international trend toward the regulatory approach to environmental civil liability, which is referred to in this article as the “separate-regulatory paradigm”, is emerging. In such a pattern, as followed by the United States (US) and the European Union (EU), environmental tort liability and liability for environmental damage are mainly regulated by tort law and environmental statutes, respectively. However, China, relying substantially on its civil law system to address liability for environmental harm, seems to deviate from this paradigm. This article analyzes the significance of the separate-regulatory paradigm and argues that it has profound implications for China. This article suggests a separate statutory liability scheme that moves beyond the existing Chinese civil law framework to achieve the full recovery of environmental damage.
... No es una sorpresa, entonces, que el concepto de naturaleza-sujeto se entrecruce con principios como el del buen vivir en Bolivia y Ecuador y el de kaitiakitanga (tutela o protección) en Nueva Zelanda (Barié, 2014;Gudynas, 2009a;Haidar y Berros, 2015;Lalander, 2015;Llasag Fernández, 2009;Sanders, 2017;Tănăsescu, 2020 aislados, que se encuentran azarosa y ocasionalmente. Por el contrario, se consideran como entidades que están estrechamente interconectadas y que interactúan incesante e ineludiblemente. ...
... En este caso, sin embargo, las fuentes religiosas que sustentan el carácter sagrado de la Madre Tierra no provienen del cristianismo; más bien, de las religiones que profesan los pueblos indígenas andinos y maorí.Los derechos de la naturaleza son un producto cultural híbrido, como la Virgen-Cerro de Potosí. La idea de que la naturaleza es una madre sagrada procede de los pueblos indígenas que constituyen parcialmente a Ecuador, Bolivia y Nueva Zelanda(Tănăsescu, 2020). La idea de que este individuo es un sujeto de derechos se deriva de la tradición jurídica occidental moderna. ...
Este artículo examina la arquitectura conceptual de los derechos de la naturaleza. Para cumplir con este objetivo, se divide en tres partes. En la primera, analizo las estructuras conceptuales que dan forma a tres perspectivas paradigmáticas sobre los derechos de la naturaleza: la ecuatoriana, la boliviana y la neozelandesa. En particular, exploro las siguientes categorías que constituyen la columna vertebral de los derechos de la naturaleza: (i) sujeto autónomo juridificado, (ii) híbrido cultural, (iii) sagrado y eterno, y (iv) espacio habitado (y constituido) por un conjunto de entes orgánicos e inorgánicos interdependientes. En la segunda parte, y como una forma de comprender de manera más clara y precisa la idea de la naturaleza-sujeto, analizo la noción de la naturaleza-objeto que emerge paradigmáticamente con la Biblia, en especial con el libro del Génesis. La creación del mundo por parte de la divinidad judeocristiana, así como la expulsión de los seres humanos del Jardín del Edén, son elementos centrales en la narrativa que articula la idea de la naturaleza-objeto en la cultura occidental. Las diferencias entre los conceptos de la naturaleza-objeto judeocristiana y la naturaleza-sujeto culturalmente híbrida me permitirán caracterizar y comprender de una manera más aguda las dimensiones constitutivas de la noción de naturaleza-sujeto que aparece en la modernidad tardía. En la tercera parte, estudio el concepto de naturaleza-sujeto-objeto que aparece en la poesía de Walt Whitman. Su obra articula de manera prototípica uno de los posibles puntos intermedios que existen entre la naturaleza-objeto y la naturaleza-sujeto. La poesía de Whitman ofrece un concepto de naturaleza que es al mismo tiempo persona sagrada e instrumento humano. La naturaleza en este autorse antropomorfiza y se espiritualiza: es madre y fuerza creadora cósmica. No obstante, también se interpreta como un medio para alcanzar un proyecto político particular: la construcción de una democracia moderna en el Nuevo Mundo.
... Ongoing work on the interpretation of the relevant provisions of the CBD and Articles 5, 6, and 7 of the Nagoya Protocol is still encumbered by a significant level of uncertainty, but a great deal of hope has been pinned on community protocols -referred to here as Biocultural Community Protocols (BCPs) -as now enshrined in the Nagoya Protocol. 8 In particular, seen within a dynamic policy and advocacy context around "territories and areas conserved by indigenous peoples and local communities" (ICCAs), 9 Indigenous Biocultural Territories (Argumedo & Pimbert, 2008), rights of nature (Iorns Magallanes, 2019; Kotzé & Villavicencio Calzadilla, 2017;Tănăsescu, 2020), and biocultural rights (Bavikatte, 2014;Girard, 2019;Sajeva, 2018), BCPs have been heralded as able to solve the ABS conundrum for IPLCs. They ensure communities' rights to development, while supporting their role in biodiversity conservation and maintenance (Posey & Dutfield, 1996, p. 95), without letting their unique livelihoods and ways of life be shattered by the unfettered extension of disembedded markets and the language of trade. ...
... That the issue arises when the epistemic frameworks of modern law are being discussed with precedents such as the Atrato and the Whanganui Rivers cases (Tănăsescu, 2020) should come as no surprise. Just as in the 16th century, when on the Old Continent, profound socioeconomic and geopolitical upheavals had led, through a return to the debate on "man", the State, sovereignty, and property, to give rise to the rights of individuals ("subjective rights") and the subject of modern law; today, too, the entry into the Anthropocene ushers in a new "political ontology of the subject". ...
... Ongoing work on the interpretation of the relevant provisions of the CBD and Articles 5, 6, and 7 of the Nagoya Protocol is still encumbered by a significant level of uncertainty, but a great deal of hope has been pinned on community protocols -referred to here as Biocultural Community Protocols (BCPs) -as now enshrined in the Nagoya Protocol. 8 In particular, seen within a dynamic policy and advocacy context around "territories and areas conserved by indigenous peoples and local communities" (ICCAs), 9 Indigenous Biocultural Territories , rights of nature (Iorns Kotzé & Villavicencio Calzadilla, 2017;Tănăsescu, 2020), and biocultural rights Girard, 2019;, BCPs have been heralded as able to solve the ABS conundrum for IPLCs. They ensure communities' rights to development, while supporting their role in biodiversity conservation and maintenance (Posey & Dutfield, 1996, p. 95), without letting their unique livelihoods and ways of life be shattered by the unfettered extension of disembedded markets and the language of trade. ...
... That the issue arises when the epistemic frameworks of modern law are being discussed with precedents such as the Atrato and the Whanganui Rivers cases (Tănăsescu, 2020) should come as no surprise. Just as in the 16th century, when on the Old Continent, profound socioeconomic and geopolitical upheavals had led, through a return to the debate on "man", the State, sovereignty, and property, to give rise to the rights of individuals ("subjective rights") and the subject of modern law; today, too, the entry into the Anthropocene ushers in a new "political ontology of the subject". ...
... Let us situate these abstract distinctions in a concrete case such as burgeoning debates about "rights of nature" (Giraldo, 2012;Santamaría Ortiz, 2023;Tȃnȃsescu, 2020). Rivers are among the non-human entities that have become increasingly treated as legal persons with their own rights and responsibilities (Chaves et al., 2020;Kramm, 2020;O'Donnell, 2018). ...
In this paper we analyze relations between ontology in anthropology and philosophy beyond simple homonymy or synonymy and show how this diagnosis allows for new interdisciplinary links and insights, while minimizing the risk of cross-disciplinary equivocation. We introduce the ontological turn in anthropology as an intellectual project rooted in the critique of dualism of culture and nature and propose a classification of the literature we reviewed into first-order claims about the world and second-order claims about ontological frameworks. Next, rather than provide a strict definition of ontology in anthropological literature, we argue that the term is used as a heuristic addressing a web of sub-concepts relating to interpretation, knowledge, and self-determination which correspond to methodological, epistemic, and political considerations central to the development of the ontological turn. We present a case study of rivers as persons to demonstrate what the ontological paradigm in anthropology amounts to in practice. Finally, in an analysis facilitated by a parallel between the first- and second-order claims in anthropology, and ontology and meta-ontology in philosophy (respectively), we showcase the potential for contribution of ontological anthropology to contemporary philosophical debates, such as ontological gerrymandering, relativism and social ontology, and vice versa.
... The field of Indigenous peoples' rights and legal decolonisation provides another significant approach to RoN, drawing upon Indigenous peoples' worldviews and their rich tradition of interconnecting the human with the natural or nonhuman world. RoN provides a pragmatic attempt to build connections between western legal systems and Indigenous worldviews showing that extension of legal personhood to nature is a common way of being amongst Indigenous communities (Tănăsescu, 2020). Although not necessarily framed as rights (which is a western concept), in many Indigenous cultures ecological knowledge and cultural practises are deep rooted in spiritual and cultural practises recognising and celebrating the inherent value of nature (Arabena, 2015). ...
Recognising the rights of nature is seen by many as the paradigm shift needed to truly embed ecology and the environment into nature-based policy and management solutions to address biodiversity loss, climate change, and sustainable development. However, despite its potential, research across and beyond disciplinary boundaries remains very limited, with most located in the humanities and social sciences and often lacking connection with environmental sciences. Based on a multi-, inter-, and transdisciplinary project, we identify some critical common themes among the humanities, social sciences, and environmental sciences to support future research on the potential of the rights of nature to address con- temporary social-environmental challenges. We argue that future research needs to be not only interdisciplinary but also transdisciplinary since the movement of rights of nature is often driven by and based on knowledge emerging outside of academic disciplines.
... 31 See Borràs 2016. 32 Tănăsescu 2020. 33 See Sajeva (2023 in this monographic section of Ragion Pratica. ...
Ente di afferenza: () Copyright c by Società editrice il Mulino, Bologna. Tutti i diritti sono riservati. Per altre informazioni si veda https://www.rivisteweb.it Licenza d'uso L'articoloè messo a disposizione dell'utente in licenza per uso esclusivamente privato e personale, senza scopo di lucro e senza fini direttamente o indirettamente commerciali. Salvo quanto espressamente previsto dalla licenza d'uso Rivisteweb,è fatto divieto di riprodurre, trasmettere, distribuire o altrimenti utilizzare l'articolo, per qualsiasi scopo o fine. Tutti i diritti sono riservati. Abstract This piece explores the engagement of an international lawyer with interdisciplinary me-thodologies for the study of environmental sustainability and emerging biotechnologies. Using an autoethnographic approach, I discuss key characteristics of the legal discipline, including the link between training and practice, the focus on doctrinal approaches, and the approach on methods and methodology, juxtaposing the latter with perspectives from social scientists. I address the need to challenge basic concepts and question biases and limitations of Western legal scholarship. I explore the usefulness of qualitative methods of social sciences for international law research, and share tools for normative work involving life sciences. Highlighting the need to build interdisciplinary competencies to address complex law and governance questions, I call for rethinking disciplinary boundaries and forming communities of knowledge and practice.
... In addition, there are safety and security principles for consumers to provide security and safety guarantees for consumers in consuming the selected food. The last principle in consumer protection, namely the principle of legal certainty, is intended so that consumers and business actors obey the laws regulated in order to obtain justice in the implementation of consumer protection guaranteed by the state (Tănăsescu, 2020). This last principle is the main problem in the problem of the relationship between producers as business actors who produce processed food to the public as consumers. ...
Through the decision of the Surabaya District Court Number 728 / Pid.Sus / 2018 / PN.Sb PT. ASAHAN FOOD does not need to stay in prison for 6 (six) months, provided that within the next 1 (one) year the owner of PT. ASAHAN FOOD is of good character. In the case of endangering the public with the decision mentioned above, the verdict in the case of the Surabaya district court has anomalies and has a vague meaning to law no.18 of 2012 concerning food article 91 and article 142 considering that there are still legal loopholes as a criminal act in the case of PT. Asahan Food for deliberately taking steps to ignore it for quite a long time (4 years) since the issuance of the new regulation to administer the permit from BPOM as the agency that has control over the safety of food products. so that this can cause loss and cause of death for the wider community.
... As Coates points out (2018, p. 169), the Awa Tupua model represents a 'subtle and incremental shift in the Crown-Māori constitutional relationship' (See also Sanders (2018), p. 231;Tănăsescu (2020), p 446). But it is still a political compromise arising out of a Tiriti settlement (Te Aho 2019, p. 1618), and (as such) is limited by the extent to which the Crown agreed to its parameters (Jones 2016, p. 98). ...
There is increasing support, in international legal theory and advocacy, for water governance approaches that go beyond the technocratic, and recognise the reciprocal relatedness of water peoples and water places. Such an approach may seem logical within certain Indigenous law and belief systems, but can Western legal frameworks become more ‘relational’? How can they evolve to be capable of meaningfully relating with Indigenous systems of law and governance for water? This article draws on a comprehensive survey of comparative legal developments affecting water across seven settler-colonial countries in Australasia and Latin America that attempt (or profess) to be relational. I critically evaluate these attempts against the ‘yardstick’ of relationality. In each jurisdiction there are unresolved calls for a social, cultural and constitutional transformation of some sort, in which Indigenous and environmental justice are key. The analysis here reveals the potential for constitutional law to drive relational water laws, although without place-based specificity and supporting institutions, resources and redistributions of power, constitutional approaches risk having little practical impact.
... The aim is to understand how the local context shapes and is shaped by these legislations, and how RoR can either reinforce or transform processes of marginalisation, contestation and even environmental harm to the rivers themselves (Kinkaid, 2019). This complicates the ecocentric narrative, which often glosses over clashes between river rights and the rights of people (Chapron et al., 2019;Macpherson and Ospina, 2018;Tanasescu, 2020). Careful consideration is thus required of the material and discursive ways in which RoR approaches come into being, and of their implications. ...
Rights of Nature (RoN) approaches as a tool to protect ecosystems and nature is gaining growing
attention in academic and societal debates. Despite this new momentum, theoretical work is increasingly pointing
out major problems and uncertainties related to such approaches. Inspired by this critical work, the paper considers
RoN as a type of intervention that competes with those of other actors for the control of, and decision-making
power over, natural resources. To understand the implications of such interventions, it is necessary to investigate
how they shape, and are shaped by, local context. To that end, we look at Rights of Rivers (RoR) cases in New
Zealand, Colombia and India. Investigating these well-researched cases, we aim to tease out the material and
discursive contestations that emerge from the establishment and implementation of RoR interventions. We then
propose an analytical approach that has emerged from our fieldwork and which can be useful in identifying the
conflicts and contestations underpinning RoR.
... Also (Lambooy et al., 2019). 3. See (Darpö, 2021;Tănăsescu, 2020). 4. RoN in a legal setting have been elaborated by Cullinan's Wild Law (Cullinan, 2011) and Berry's Earth Jurisprudence (Bell, 2003). 5. ...
The Rights of Nature (RoN) promote a new understanding of the human environment, where natural entities are conceived as subjects with intrinsic value independent of human interests. The implementation of this idea gained momentum in the United States in 2006. One decade and a half later, the idea has spread all over the world. Despite some efforts, a sophisticated geographical inventory of the movement is missing. Building on Kauffman (2020), we identified and analysed 409 initiatives in 39 countries, creating the most comprehensive database of RoN initiatives to date. We developed a taxonomy that may guide further research. We also present two detailed maps which can help policymakers, legislators, judges, researchers, and the public at large to evaluate and compare initiatives. The findings of this investigation directly help the UN Harmony with Nature Programme and have contributed to the launch of the Eco-Jurisprudence Monitor, an online database of RoN initiatives.
... A biosociety is defined as an organized set of individuals who base their lives on learning, managing, and experimenting with the biotic resources of a territory. Nature is perceived as a "somebody", so the relationships that are established are ones of respect [52]. As part of the social structure, rules, and behaviours, a biosociety does not differ from a society based on an anthropocentric approach, but it does have the particularity that needs are satisfied based on the knowledge obtained from its interaction with the biodiversity existing in the territory. ...
The objective of this study is to explore the strengths of indigenous food systems in Latin America within the framework of effective food policies. The analysis is based on the adaptive capacity of human beings, and, in this logic, it considers the food systems of Latin America to be relevant since in the face of challenges, such as climate change and the COVID-19 pandemic, indigenous peoples have been able to establish response strategies. However, beyond these responses, we find a region that has assumed a biopolitical stance with a tendency to design control policies in response to the pandemic. This situation has not improved the inequalities and vulnerabilities of a sector of the indigenous population in Latin America. The aforementioned challenges give a clear picture of the strengths of the region's indigenous people, and knowledge of this interactive dynamic can provide elements for the design of food policies. In this sense, an exhaustive literature review was carried out in order to approach the state of the art of the issue. The analysis was derived from three analytical categories that in synergy and from an open innovation perspective, make a proposal for the design and implementation of effective food policies that allow a region to learn from local indigenous experiences in a context of food insecurity.
... I don't mean to imply that in New Zealand a perfect 'inclusion' of Māori thinking has been achieved. I have presented a much more nuanced view of this in Tănăsescu (2020a). Instead, I do want to suggest that those cases cut a new path, one that has much greater potential for much greater inclusion. ...
Rivers, landscapes, whole territories: these are the latest entities environmental activists have fought hard to include in the relentless expansion of rights in our world. But what does it mean for a landscape to have rights? Why would anyone want to create such rights, and to what end? Is it a good idea, and does it come with risks? This book presents the logic behind giving nature rights and discusses the most important cases in which this has happened, ranging from constitutional rights of nature in Ecuador to rights for rivers in New Zealand, Colombia, and India. Mihnea Tanasescu offers clear answers to the thorny questions that the intrusion of nature into law is sure to raise.
... 101 Natures' rights, however, particularly in Ecuador, have been criticized as endorsing a singular, universalized Nature that merely reifies Western understandings of the world beyond the human. 102 If indeed this was lawmakers' original intent, there is now, instead, considerable evidence of many distinct naturecultures asserted when natures' rights are ecocentrically invoked to affirm territorially grounded life projects. Subaltern struggles have used rights-based legal claims to protest and combat the harms caused by extractivist development and industrial capitalist agriculture to the multi-species communities in which they live. ...
In a decolonial determination to resist the modern ontological separation of nature from culture, political ontologies and posthuman legalities in Andean Community countries increasingly recognize natural and cultural forces to be inextricably interrelated under the principle of the pluriverse. After years of Indigenous struggles, new social movement mobilizations and citizen activism, twenty-first century constitutional changes in the region have affirmed the plurinational and intercultural natures of the region's polities. Drawing upon extensive interdisciplinary ethnographic research in Ecuador and Colombia, the article illustrates how Indigenous, Afro-descendant and campesino communities express multi-species relations of care and conviviality in opposition to modern extractivist development through the concept of buen vivir. These grassroots collective life projects and life plans articulate rights 'from below' to support new practices of territorialization that further materialize natures' rights and community ideals. Although human rights have modern origins, the implementation of third generation collective biocultural rights to fulfill natures' rights may help to materially realize community norms, autonomies and responsibilities that exceed modern ontologies. The ecocentric territorial rights struggles and posthuman legalities we explore are examples of a larger emergent project of decolonizing human rights in a politics appropriate to the Anthropocene.
... Yet as discussed in this article, despite an evolving jurisprudence, Indigenous claims are often excluded from mainstream dialogue (Tănăsescu, 2020;Macpherson, Torres Ventura, and Clavijo Ospina, 2020). Their roles in helping prevent future pandemics and the devastating effects this pandemic has had on them, must be included. ...
Latin America is often considered the world’s most unequal region. This inequality is not limited to socioeconomic differences; it is also seen through discrepancies in access to nature, land, and natural resources. The Covid-19 pandemic has intensified existing vulnerabilities felt by communities, especially susceptible to environmental degradation through furthering their socioeconomic disadvantage. Faced with challenges related to the national implementation of certain rule of law concepts and practices, and the lack of access to sufficient domestic remedies, regional plaintiffs have often reached out to the Inter-American system as an arbiter for human rights abuses. Recent jurisprudence of both the Inter-American Court of Human Rights and the Inter-American Commission on Human Rights has broadened the scope of recognized rights infringed by State Parties to the Inter-American human rights system, particularly in fields relating to environmental issues, natural resource rights and the rights of vulnerable and marginalized communities. Critical to this is the Inter-American Court’s development of the inter-dependence of green human rights in Indigenous cases. Set against this backdrop, the Covid-19 pandemic provides an opportunity to analyze existing and evolving legal trends, giving the Inter-American human rights system fertile ground to address emerging legal topics on human rights and the environment. This article addresses this evolving jurisprudence, using recent cases brought to the Commission’s attention as case studies on the development of this relationship.
Niniejsza praca ma na celu przedstawienie, w jaki sposób Hartowska koncepcja otwartej struktury prawa może posłużyć dla teoretycznej refleksji nad zjawiskiem ewolucji instytucji prawnych. W pierwszej części artykułu zostanie zaprezentowany sposób, w jaki rozumiane jest pojęcie „otwartej struktury”. Jest to presktyprywna interpetacja propozycji Herberta L.A. Harta, zaproponowana pierwotnie przez Briana Bixa, która „zakłada”, a nie „dowodzi” istnienie otwartej struktury. W drugiej części przedstawię, jak otwarta struktura prawa wyjaśnia aktywizm sędziowski bądź zmiany legislacyjne w stosunku do instytucji prawnych na przykładzie instytucji małżeństwa. Jednym z głównych problemów jest tzw. argument semantyczny, który wskazuje na językowe granice dla dokonywania pewnych zmian prawnych (np. uchwalenia małżeństw jednopłciowych, nadania osobowości prawnej rzekom). Problem semantycznych granic zostanie umieszczony w kontekście podziału na pojęcia odnoszące się do rodzajów społecznych oraz prawnych. Powyższe rozważania zostaną na końcu umieszczone w kontekście polskich przepisów, szczególnie art. 18 Konstytucji RP.
The ontological question of whether nature ‘naturally’ has rights is related to indigenous people’s interactions with nature. In the academic discussion of that relationship, roughly two movements can be discerned. Indigenous people in the first movement would reject the idea of personality as something granted by humans to non-humans. A second movement is the view that thinking about rights does not coincide at all with indigenous people’s interactions with whatsoever; indigenous people, instead of a Western, dialectical discourse of rights, would have a more semiotic conception of normativity. In this way, the question of the ontology of rights for nature masks an underlying colonialism. A third perspective would offer an outcome from this discussion. This is the view that a philosophical-ontological discussion about the granting or recognition of rights for nature is just unimportant. The legal fiction theory merely declares the anthropological concept of man to be a legal subject and sees in the concept of legal personality a legal, dialectical construct, which, through sovereignty legitimated by the state, holds natural persons and legal persons to be equal. This argumentation is pragmatic and does not yield many legal-philosophical consequences.
Radical democratic thinking is becoming intrigued by the material situatedness of its political agents and by the role of nonhuman participants in political interaction. At stake here is the displacement of narrow anthropocentrism that currently guides democratic theory and practice, and its repositioning into what we call ‘the nonhuman condition’. This Critical Exchange explores the nonhuman condition. It asks: What are the implications of decentering the human subject via a new materialist reading of radical democracy? Does this reading dilute political agency? Or should this be seen, on the contrary, as an invitation for new voices and demands to enter into democratic assemblages? How might engagement with the more-than-human disrupt or extend theories of radical democracy? Hans Asenbaum and Amanda Machin discuss the human democratic subject both through radical democratic and new materialist lenses. They suggest that a new materialist decentred subject does not lose agency but further gains political responsibility in radical democracy. Jean-Paul Gagnon highlights the possibility of becoming through loss. In losing our anthropocentric arrogance—our understanding of being other and better than animal—we become more connected and discover our place in human-nonhuman assemblages. Melissa Orlie agrees that something can be gained through renouncing dominant human fantasies and presents a ‘radical democratic naturalism’. By renouncing land violence and acknowledging nature’s subjectivity, we can further nonexploitative radical democratic politics. This is where the notion of ‘tidalectic’ processes introduced by James L. Smith is helpful. Focusing on water and the Indigenous knowledges around rivers, he considers how democracy and community can be reimagined as plural, cyclical and attentive to the nonhuman with which the human is inevitably entangled. Diana Leong offers a different approach. Considering the nonhuman from the perspective of Black Studies demands an awareness to how blackness has long been constituted as non- or partially human.
In recent years, a number of jurisdictions have recognized diverse ecosystems and other-than-human organisms as legal persons. From national constitutions and legislation to subnational judicial decisions and ordinances, these legal experiments have extended legal personality to riverine and terrestrial ecological communities, including vast geographical areas and the beyond-human beings that inhabit them. A growing body of literature engages with these developments and, in particular, their consequences for states and governments. However, few analyses have considered the practical implications they may present for private organizations operating under company law. We address this research gap and explore potential challenges and opportunities that the recognition of ecosystems as legal persons may create for private legal persons, especially corporations. We also discuss the possible impacts and opportunities of the expansion of legal personality on company law and corporate practice more broadly, arguing for a reimagination of company law. This reimagination embraces an ethics of reciprocity, responsibility , and relationality between corporate entities, and ecological and human communities.
The recent trend of attributing rights to nature arguably introduces a novel way of ordering the relationship between humans and nonhumans. But to what extent does it challenge the political, legal, and economic categories of modernity? By analysing the processes that led to the inclusion of the rights of Mother Earth in the Bolivian legal system, I explore whether and how rights of nature express a distinct form of relating to the environment. Using the lenses of juridical symmetry and political conflict, I argue that attempts to ascribe rights to ecosystems can be read as examples of hyperpoliticisation which ultimately result in depoliticisation. I contend that rights of nature bring together the neutralisation of political conflict by extending the logic of juridical symmetry to nonhuman entities. Thus, far from constituting a renewed way of being together, these processes reiterate the aporia of the modern Western conceptual horizon.
Although the Indonesian Constitution guarantees religious freedom in Indonesia, the implementation of that freedom is not without ambiguity. As the state defines what constitutes religion and categorises official and nonofficial religions, religious communities such as indigenous religious groups are struggling to obtain equal access to the public administration and to express their faith to the broader society. The ambiguity of religious freedom in Indonesia is obvious in the matter of institutional freedom of religion. Minority religious groups, especially those of nonofficial religions, would find their institutional freedom much restricted. Kuyper’s sphere sovereignty has proved to be successful in establishing institutional religious freedom in the Netherlands. This article seeks to show the relevance of Kuyper’s sphere sovereignty to the matter of institutional religious freedom in Indonesia.Intradisciplinary and/or interdisciplinary implications: Kuyper’s sphere sovereignty does not only show the importance of religious freedom but also the equal access for every religious community to institutionalise themselves. In the Indonesian context, sphere sovereignty could contribute to the issue of institutional religious freedom, especially for the adherents of nonofficial religions.
Human rights and environmental protection are closely intertwined, and both are critically dependent on supportive legal opportunity structures. These legal structures consist of access to the courts; 'legal stock' or the set of available standards and precedents on which to base litigation; and institutional receptiveness to potential litigation. These elements all depend on a variety of social, political, and economic variables. This book critically analyses the complexities of uniting human rights advocacy and environmental protection. Bringing together international experts in the field, it documents the current state of our environmental human rights knowledge, strategically critical questions that remain unanswered, and the initiatives required to develop those answers. It is ideal for researchers in environmental governance and law, as well as interested practitioners and advanced students working in public policy, political science and environmental studies.
Este artículo explora algunos de los elementos conceptuales más importantes de los derechos de la naturaleza, así como momentos históricos clave en su desarrollo. La discusión se centra en varios casos que se examinan con mayor detenimiento, como la Constitución ecuatoriana y la Ley Te Urewera de Aotearoa (Nueva Zelanda). Mediante este análisis, el artículo ofrece nuevas pistas para una clasificación de los diferentes tipos de derechos de la naturaleza, así como un estudio de la importancia de su alcance (municipal, regional, nacional, etc.). Además, se revisa la cuestión del pluralismo jurídico y la estructura inherentemente política de los derechos de la naturaleza. En conjunto, estas contribuciones ofrecen un panorama general del estado actual de los estudios sobre los derechos de la naturaleza hasta la fecha e importantes orientaciones para futuras investigaciones.
A partir de la tendencia jurídica global del reconocimiento de la naturaleza como una entidad titular de derechos, este artículo propone, en primer lugar, abordar la debida diligencia empresarial en derechos humanos con un enfoque holístico, de modo que el núcleo de la responsabilidad de las empresas de respetar los derechos humanos incluya, además de la emergente debida diligencia climática, los derechos de la naturaleza. Este enfoque holístico se fundamenta en la adopción por parte de distintos ordenamientos jurídicos nacionales de los derechos de la naturaleza, y en la relación de integralidad reconocida entre los derechos humanos y la naturaleza. En segundo lugar, el artículo propone aplicar esta debida diligencia empresarial a la transición energética, teniendo en cuenta el papel que juegan las empresas en el proceso de transformación del sector energético como estrategia clave para enfrentar el cambio climático. En este sentido, la transición energética implementada bajo los estándares de la debida diligencia en derechos humanos, propuesta en este texto, respondería a la máxima: la transición energética no se trata solo de sustituir fuentes de energía fósil por fuentes renovables, sino que debe estar alineada con el desarrollo sostenible, la protección de la naturaleza y el respeto por los derechos humanos.
El objetivo de este artículo es discutir cómo los derechos de la naturaleza han sido juridificados y disciplinados por los jueces colombianos. Para lograrlo, utilizamos una metodología con dos componentes: un análisis del discurso de sentencias judiciales y un examen de doctrina y teoría sobre el origen y los pilares del movimiento de los derechos de la naturaleza. A lo largo del texto analizamos cómo su lectura desde nociones tradicionales jurídicas como propiedad y bien común limita las aspiraciones transformadoras que inspiran el movimiento de los derechos de la naturaleza.
This paper studies “environmental personhood” legislation as a transitional concept. A transitional concept is one whose originating context sets parameters for its pragmatic functioning even as the eventual coherence of this functioning entails deep change in this originating context. By more explicitly thematizing environmental personhood as a transitional concept, we can acknowledge worries about its entanglement with a rights paradigm emphasizing private property and human exceptionalism while still exploring how it might contribute towards deeper ecological transformation. The paper introduces Nuu-chah-nuulth philosopher E. Richard Atleo’s notion of ‘phase connectors’ as a heuristic for thinking transitional tensions in environmental personhood especially in terms of the gap between its present operative strategy and possible future effects on wider imaginaries. Indeed, this gap indicates how environmental personhood’s transitional potential is entangled with challenging dominant presuppositions in what Anna Grear calls ‘law’s onto-epistemic imaginary’. Using Atleo’s heuristic and drawing on a range of sources, the paper thinks through some of the prominent fault lines and volatile dynamics of environmental personhood as a transitional concept. After establishing these critical tensions, it considers how its conceptualization in domains beyond legislative or academic articulations may or may not help induce ethico-phenomenological changes in constitutive imaginaries. Though such popular presentations are frequently reductive, understanding why and how is important if theorists can contribute to the construction of creative alternatives.
Conflicts between environmental protection laws and human rights present delicate trade-offs when concerns for social and ecological justice are increasingly intertwined. This book retraces how the legal ordering of environmental protection evolved over time and progressively merged with human rights concerns, thereby leading to a synergistic framing of their relation. It explores the world-making effects this framing performed by establishing how 'human' ought to relate to 'nature', and examines the role played by legislators, experts and adjudicators in (re)producing it. While it questions, contextualises and problematises how and why this dominant framing was construed, it also reveals how the conflicts that underpin this relationship - and the victims they affect - mainly remained unseen. The analysis critically evaluates the argumentative tropes and adjudicative strategies used in the environmental case-law of regional courts to understand how these conflicts are judicially mediated, thereby opening space for new modes of politics, legal imagination and representation.
This last chapter is dedicated to alternative approaches to environmental human rights and their relation to Indigenous peoples, with a view to lay the foundation of future research around the connection between Rights of Nature (RoN) and Indigenous peoples cosmovision, spirituality and beliefs in a decolonial perspective. This chapter argues for the need of critically rethinking human rights-based approaches to climate change, by allowing a paradigmatic shift towards Earth Jurisprudence and RoN, however highlighting some important critical considerations and problematizations we should take into account when affirming that Rights of Nature are inextricably linked to Indigenous cosmovision, knowledge and beliefs. In addition, this chapter presents a review of global environmental litigation based on RoN, highlighting the most important feature of this particular case law. In its final part, the chapter suggests a new approach to environmental law and governance represented by the right of ecological integrity, a "way forward through a non-centredness theory".
Ownership has been a key tool in the exploitation of nature for centuries. However, ownership could also shield natural entities from extraction and pollution if it were vested in them, rather than in humans or corporations. Through a case study of German constitutional property law, this article examines the normative content of this constitutional right. It argues that in owning themselves, natural entities would have numerous tools to fend off human interference with their self-determination. Constitutional property law would require any harmful activity affecting the natural entity to be based upon legislation and necessary to achieve a public purpose. The natural entity would enjoy broader access to justice. Courts would also often award appropriate remedies; where the natural entity would be awarded only compensation, this would be unsatisfactory because money cannot replace nature. The article finds that constitutional property law offers the potential for further protection from human interference, which has not been realized because of anthropocentric value judgments prevalent in German legal doctrine. Ecocentric approaches to ownership and invalidity as a standard remedy would play an important role in unlocking the full potential of ownership for environmental protection.
Despite the growing prominence and use of Rights of Nature (RoN), doubts remain as to their tangible effect on environmental protection efforts. By analyzing two initiatives in post-colonial societies, we argue that they do influence the creation of institutionalized bridges between differing land-ownership regimes. Applying the methodology of inter-legality, we examine the Ecuadorian Constitution of 2008 and the Ugandan National Environment Act 2019. We identify five normative spheres that influence land-ownership regimes. We find that the established Ecuadorian RoN have an institutionalized effect on the nation's legal system. Their more recently established Ugandan counterpart shows potential to develop in the same direction.
This paper reflects on leadership shown in Venda, Southern Africa to protect the lungs of the planet and draws out key themes on the way Indigenous wisdom — underpinned by a sense of the sacred and the profane – expressed in solidarity with nature - are vital for protecting forests. It explores indigenous wisdom on their kinship with organic and inorganic sacred totems (plants, animals and features of the landscape) which are protected through relationships that inform governance. The ongoing community of practice and related projects make a case for standing together to address climate change. The paper was developed as part of a University of South Africa project together with the named authors. Mphatheleni Makaulule has developed an a priori and a posteriori approach to Ecosystemic governance that resonates with the work of Wangari Maathai. Makaulule’s leadership in Venda that is discussed with fellow project members who are exploring how the agendas for COP 26 could be attained by fostering law informed by Bateson’s concept an “ecology of mind – which means an understanding of human beings’ place within living systems and our need for both education and laws to protect ecosystems such as forests (which are the lungs of the world) and the water systems (which are the life blood of all living systems). The governance approach in Venda emphasised the need to think in terms of our relationships with all living systems. The idea of extending a sense of solidarity to others is explored deeply with Makaulule and colleagues by considering similar approaches in other places, such as the Amazon where Makaulule spent time learning from shamanic leaders, Ghana (where Akwasi Achemfuor has undertaken research), Northern Territory and South Australia (where McIntyre was mentored by Peter Turner and Olive Veverbrants). The paper also refers to the work of Widianingsih based on an in-depth discussion on the Kasepuhan Ciptagelar community in West Java that has also been protecting the forests for more than 300 years. The authors explore whether attributing personhood to nature, could be regarded as limiting a notion of mystical and pragmatic recognition of interbeing or even a form of colonising the notion of interbeing? We suggest that a community of practice approach (Wenger, 1999, Wenger et al., 2009) to support learning organisations and communities could support two-way education to enable cross cultural, cross disciplinary and transnational learning to support steps towards wellbeing through sharing our understanding of interbeing in dialogue, it became clear that transcendence through totemism, dreams and shamanistic rituals support a sense of oneness with nature, relationality as well as a sense of awe, solidarity and responsibility for others which is being increasingly recognised in the arts and sciences.
At first blush, normative arguments justifying representation of future generations and nature appear to rest on contradictory values. This article argues, however, that there are strong synergies between these discourses. Arguments for institutions for future generations based on human rights are compared with justifications for proxy representation of nature based on ecological justice, Indigenous ecological justice and socio-ecological justice. Case studies involving the Welsh Commissioner for Future Generations, the Aotearoa New Zealand Parliamentary Commissioner for the Environment, and ascribing legal personality to rivers in Australia and Aotearoa New Zealand, are presented to demonstrate that representing future generations and nature reflect mutually supporting values. Building on these synergies is vital for reform efforts.
Human beings are spending less time in nature than previous generations. Without opportunities to interact with nature, we are unable to forge deeper connections with the natural world, leading to indifference and unwillingness to protect it. At the same time, climate change has led to biodiversity loss and new threats such as pandemics, making the issue of the disconnection between humans and nature even more pertinent. This article proposes a modified human rights-based framework to education that incorporates nature as an integral part. I draw on UNESCO’s framework for the human rights-based approach to education which entails three distinct dimensions: access to education, educational quality, and educational environment. I argue that introducing nature as a crucial part of the educational environment can contribute to upholding both human rights and the fundamental rights of nature. By drawing on ecopedagogy and Indigenous beliefs underlining a harmonious relationship with nature, we can move away from the current anthropocentric approach and address the environmental crisis in a meaningful way.
While much has been written about the efforts in multiple jurisdictions to recognize nature and natural features as rightsholders, there has been relatively little research into the relationship of these Rights of Nature developments to the Anthropocene. This article uses historian Dipesh Chakrabarty’s argument for the adoption of a human species identity in the Anthropocene as a jumping off point to analyze how legal rights for nature, such as those enacted in the Ecuador and New Zealand, can help address what Chakrabarty identifies as the challenges the Anthropocene presents to contemporary political thought. These pressing challenges include how to politicize relations between humans and non-humans, extend justice and the sphere of human morality to non-humans, cope with human limitations on our abilities to represent non-humans, and to initiate a withdrawal from a human-dominated world that is a common though uneven legacy of imperialism, capitalism, and globalization. The article argues that by providing responses to these challenges, Rights of Nature laws may also further the development of a human species identity. However, it also qualifies this conclusion in several important regards. First, the more expansive of these protections, embracing all of nature within political boundaries and relying on a remedial approach to justice and broad notions of representation in fact may hinder the adoption of the kind of species identity for which Chakrabarty has called. Second, as a cosmopolitan identity, this identity may be inhibited by continued circumscription of Rights of Nature by notions of state sovereignty.
Global law and the environment is an increasingly prominent and rapidly evolving area of scholarship. In confronting global challenges such as climate change, biodiversity loss, freshwater scarcity, and other symptoms of planetary breakdown, critical scholars from different intellectual traditions are questioning the traditional approach taken within environmental law which has, so far, only managed to save “some trees” but failed to keep “the forest”. These dominant legal interactions often use the law to address “problems” after they arrive. However, the law plays a key role also in constituting these “problems” by incentivizing certain harmful activities, upholding socio-political-economic structures, and through the limited framing of the issues it claims to solve. It is becoming increasingly clear that we live in a “legally constituted world”. Against this background, there is a need for further critical reflection on the role of the law in preventing, addressing, and even driving the entangled socio-ecological-economic crises of modernity. Through interrogating the assumptions that underlie environmental law, critical scholars have exposed, challenged, and put forward alternative visions to its neo-colonial and gendered biases; its exclusion of indigenous perspectives and voices; its construction upon problematic representations of “the environment” that centres an anthropocentric worldview; and a neoliberal economic order that fosters vast environmental damage.
Since 2009, the United Nations program on Harmony with Nature has sought a new philosophy of global environmental governance known as Earth jurisprudence. This article examines how Harmony with Nature has advanced Earth jurisprudence to unite Indigenous legal traditions, rights of nature, and mounting evidence from Earth system science regarding anthropogenic forcing on the planet. It does so through a policy analysis of annual UN reports, resolutions, and dialogues with international experts. Situating Harmony with Nature in the broader intellectual heritage of Earth jurisprudence and contemporary efforts to address anthropogenic forcing on the Earth system in the Anthropocene, I argue that Harmony with Nature operates at the juncture of two powerful ways of ordering relations, knowledge, and obligation: kin and system. The critical analysis shows how a new geography of global environmental governance has been produced within the constraints of the UN precisely by scaling Indigenous kinship to the planetary diagnoses made by system‐based planetary sciences. The resulting form of Earth jurisprudence in Harmony with Nature holds important, cautionary lessons both for understanding how Indigenous legal traditions are made to comport with UN sustainable development programs and for contemporary efforts to transform governance to meet the pressing demands of global environmental change.
There is growing recognition that radical ontological difference underlies Indigenous communities’ opposition to extractivist development within their territories. Scholars writing from a political ontology (PO) framework excitedly posit the possibility of the pluriverse emerging from the ‘ontological openings’ (de la Cadena 2015a) that these struggles are forming in the project of modernity. While such accounts are useful in elucidating how such struggles are more than ‘mere resource conflicts’ (Coombes et al. 2012a), they also risk reifying ontological difference and losing sight of the power asymmetries which shape its pragmatic and strategic articulation. More than just a matter of academic debate, overstating the ontological difference of Indigenous opposition to extractivism is a ‘cosmopolitical risk’ (Cepek 2016) that has the potential to limit Indigenous communities’ particular aspirations for self-determination. As a consequence, this article suggests a way forward can be found in ‘ontologizing political economy’ (Burman 2016) whilst also paying closer attention to the contingent nature of worlding, as well as ontological ambiguities and ‘partial connections’ (de la Cadena 2015a). This article fleshes out these theoretical concerns through drawing upon my ethnographic research about an ongoing ‘resource’ conflict in Guatemala. Over the last few years, the Maya Tz’utujil community of San Pedro la Laguna has been strongly opposing the ‘megacolector’ – a wastewater megaproject being advanced as a solution to Lake Atitlan’s contamination by the environmental NGO ‘Asociación de Amigos del Lago de Atitlán’ (Association of Friends of Lake Atitlán). Through engaging with a range of Pedrano community members, I reflect upon the usefulness of a PO framework for understanding the megacolector conflict’s ontological dimensions and the motivations of San Pedro’s opposition movement.
International environmental law has come a long way in addressing humans’ extractive and negative relationship with nature, although despite its profound anthropocentrism and economic focus. This paper analyzes how and whether international environmental law can be conceived differently by incorporating different perspectives about the human/nature relationship. More specifically, the article engages with the concept of multinaturalism , as developed by anthropologist Eduardo Viveiros de Castro, to address the advantages and significance of admitting indigenous forms of life in international environmental law. Forms of life which not only relate to nature differently but can conceive of nature differently. Taking such an approach requires a methodological shift to examine the existence of forms of life that invert the traditional Western conception of nature and culture, thus allowing for the potential to move international environmental law beyond anthropocentrism, while providing elements to resolve the tension between development/economic concerns in ecological conservation and long-term species survival.
This article critically analyses the novelty of the legal personhood of nature and, in particular, whether it signals cracks in the anthropocentrism of Western law. Drawing upon the work of Michel Foucault and Roberto Esposito, it contributes to the theorisation of environmental personhood by focusing on the biopolitical nature of personhood itself. It does so by engaging in a critical examination of the attribution of legal personality to the Whanganui River in Aotearoa New Zealand as the most detailed and sophisticated legislative example to date of legally personifying a natural thing. Working through three key conceptual terms in Foucault’s and Esposito’s work (population, personhood and immunisation), we demonstrate the way in which a biopolitical analysis raises questions about whether ascribing legal personhood to nature addresses anthropocentrism and its effects. We draw attention to the risk of ascribing legal personhood to nature, which is that, instead of signalling an ontological shift in the Western anthropocentric understandings of environment, it operates within and reinforces the dominant legal worldview – unless, that is, the granting of personhood to nature calls into question the dominant paradigm of personhood itself. The article concludes by suggesting alternative ways of developing human understandings of, and relationship with, nature.
In introducing the contributions to this special section, we explore the links between social and juridical concepts of normativity and science and technology. We follow the Legal Pluralism challenge to the notion of state law as the sole source of normative order and point to how technological transformation creates a pluralistic legal universe that takes on new shapes under conditions of globalization. We promote a science and technology studies (STS)-inspired reworking of Legal Pluralism and suggest expanding the portfolio of legally effective regimes of ordering to include the normativity generated by materiality and technology. This normativity is amply demonstrated in the case studies included in the papers which make up this special section. We conclude that the inclusion of approaches developed in STS research helps analytically to overcome what we view as an incomplete law project, one unable to deal with the technicized lifeworlds of a global modernity. The contributions to this special section illustrate that technomaterial change cannot be understood without recognition of the role of normative impacts, and conversely, the legal pluriverse cannot be understood without recognition of the normative role of techno-material arrangements.
People with disability have demanded the recognition of full legal personhood in order to realise their rights and to overcome dominance and oppression. Legal personhood is also being claimed for similar reasons for natural entities, including rivers, forests, and mountains. However, the prevailing neo-liberal understanding of legal personhood relies on the individual exercising personhood independently. This may not be enough to secure the interests and realise the rights of people with disability, natural entities, or other cohorts that are not experiencing a wealth of power and privilege. In this article, we attempt to overcome centuries of (white, able-bodied, cis gender) male centric theory of legal personhood. We reject the dominant conceptions of personhood from liberal political theory that emphasise an atomistic, isolated individual making independent decisions. Instead, we argue for a different conception of legal personhood – relational personhood. We use insights from feminist theories of relational autonomy as well as the experience of disability to help us re-conceptualise personhood to embrace exercising autonomy through a collaborative process of acknowledging, interpreting and acting on an individual’s expressions of will and preference. We then apply this new conception to the recognition of legal personhood in nature and explore how natural entities can exercise their personhood via their relationships with humans – and, in particular, Indigenous Peoples, who have developed close relationships with natural entities over centuries. Our aim is to demonstrate the utility of a conception of legal personhood that encompass the reality of the interdependence of all individuals and entities.
Since the momentous release of the Montecristi Constitution of Ecuador in 2008, which recognised Nature, or Pacha Mama, as a subject of rights, the rights of Nature movement across the world has gained exponential momentum, with numerous jurisdictions worldwide now recognising some form of legal subjectivity vested upon Nature. In particular, since 2017, river personhood has dominated news headlines around the world as one of the most recognisable forms of Nature’s novel subjectivity. The emergence of legal personhood for nature, however, has been far from uncontroversial, and numerous critiques have been advanced against the use of such a legal category – traditionally applied to humans and their abstract creations (such as States and corporations) – to the natural world, resulting in numerous calls for an alternative category of legal personhood (one that some rights of Nature advocates have termed an ‘environmental person’). Against the backdrop of this emerging debate, this paper acknowledges the work undertaken by the Martuwarra Fitzroy River Council (Martuwarra Council), which was established in 2018 in the Kimberley region of Western Australia by six independent Indigenous nations to preserve, promote and protect their ancestral River from ongoing destructive ‘development’. The Council believes it is time to recognise the pre-existing and continuing legal authority of Indigenous law, or ‘First Law’, in relation to the River, in order to preserve its integrity through a process of legal decolonisation. First Law differs markedly from its colonial counterpart, as its principles are not articulated in terms of rules, policies and procedures, but rather through stories. This paper, therefore, begins with a dialogical translation of one First Law story relating to Yoongoorrookoo,¹ the ancestral serpent being,² to create a semantic bridge between two apparently distant legal worldviews. A dialogical comparative analysis is then followed to posit and explore the concept of an ‘ancestral person’ as a novel comparative tool that may be able not only to capture the idea of Nature as a legal subject, but also complex Indigenous worldviews that see Nature – in this case instantiated in the Martuwarra – as an ancestral being enmeshed in a relationship of interdependence and guardianship between the human and the nonhuman world. To instantiate and embody such relationships, the paper directly, and somewhat provocatively, acknowledges the River itself, the Martuwarra RiverOfLife, as the primary participant in such dialogue, an embodied non-human co-author who began a conversation then left to human writers to continue.
This article explores deep underlying assumptions about relationships between people and the planet, and how these translate into very different ways of relating to waterways in Aotearoa New Zealand. In te ao Mäori – ancestral Mäori ways of living – rivers and lakes are the tears of Ranginui, the sky father, mourning his separation from Papatüänuku, the earth mother, and people are their descendants, joined in complex whakapapa that link all forms of life together. In modern ways of thinking, on the other hand, ideas such as private property, resource management and ecosystem services can be traced back to the Genesis story of God’s gift of ‘dominion’ to Adam and Eve over fish, birds, plants and the earth itself, including waterways, in which all other life forms are created for human purposes. In successive Waitangi Tribunal claims, iwi have disputed these assumptions in relation to fisheries, tribal lands and rivers, and, in worldleading legislation, the Whanganui River has been declared a legal person with its own rights. In this article, the authors discuss different ways in which the rights of rivers as rivers might be understood in scientific terms, investigating the ‘geomorphic rights’ of the Whanganui River, for instance, and how rivers as living communities of land, water, plants, animals and people might be understood through ‘river ethnography’, an approach that aligns a wide range of natural and social sciences with mätauranga taiao – ancestral knowledge of other living systems. They also consider how current policy discussions might be informed by such framings, so that river communities across Aotearoa New Zealand may be restored to a state of ora – life, health, abundance and prosperity.
In this text I investigate the increasing usage of the Rights of Nature to approach the task of Stewardship for the Earth. The Ecuadorian constitution of 2008 introduces the indigenous concept of Pachamama and interpretes nature as a subject of rights. Reflecting the two 2017 cases of the Whanganui River (New Zealand) and the Gangotri and Yamunotri Glaciers (India), my main argument is that, although the language of individual rights relies on modern subjectivity as well as the constitutionalism of the secular nation state, it is obviously seen as a trans-cultural tool to justify Human Stewardship over the Earth in the Age of Anthropocene. I argue that the new Rights of Nature debate “provides” a straightforward justification of the Stewardship for the Earth and it includes two moments aimed to transcend European Modernity. The Rights Approach justifies obligations towards nature beyond human interests and it appeals to indigenous knowledge as an alternative sphere of argumentation. The relation of this endevor to the Anthropocene is twofold: The indigenous worldviews can now be translated into Rights of Nature because of the two core items of the Anthropocene that are gaining more and more acceptance: the idea of the Earth as a system and of history as a non-linear process. The scientific description of the Earth system offered by the Anthropocene supports holistic narratives of the Rights of Nature and facilitates the recognition of non-Western worldviews. At the same time the Rights of Nature help to clarify the normative claims implicit in the Anthropocene because the integrity of natural items and processes is presented as the explicit reason for a responsible human stewardship towards the Earth.
International environmental law (IEL) has been unable to respond effectively to the Anthropocene’s global socio-ecological crisis, which is critically existential and requires radical interventions and regulatory reform. This article explores the potential of the recent United Nations (UN)-backed initiative to adopt a Global Pact for the Environment as an opportunity to reform IEL. It does so by (i) reflecting on the Anthropocene’s demands for a constitutionalized form of IEL through the lens of global environmental constitutionalism; (ii) investigating the extent to which the Global Pact could contribute to such a vision; and (iii) suggesting ways in which to strengthen the constitutional potential of the Global Pact in this endeavour. To this end, the article revisits the World Charter for Nature of 1982, which seems to have slipped off the radar in academic as well as policy circles. A case is made for renewed support of the Charter – which already enjoys the backing of the majority of UN General Assembly member states, and which has constitutional qualities – to serve as a ‘best-practice’ example during the ensuing negotiation of the Global Pact.
Governments around the world are adopting laws granting Nature rights. Despite expressing common meta-norms transmitted through transnational networks, rights of Nature (RoN) laws differ in how they answer key normative questions, including how to define rights-bearing Nature, what rights to recognize, and who, if anyone, should be responsible for protecting Nature. To explain this puzzle, we compare RoN laws in three of the first countries to adopt such laws: Ecuador, the US, and New Zealand. We present a framework for analyzing RoN laws along two conceptual axes (scope and strength), highlighting how they answer normative questions differently. The article then shows how these differences resulted from the unique conditions and processes of contestation out of which each law emerged. The article contributes to the literature on norm construction by showing how RoN meta-norms circulating globally are infused with differing content as they are put into practice in different contexts, setting the stage for international norm contestation.
Juridical protection of the rights of nature is steadily emerging in several legal systems and in public discourse. Building on a recent publication in Transnational Environmental Law in which we interrogated Ecuador’s constitutional experiment with the rights of nature, we critically reflect in this contribution on Bolivia’s legal regime providing for the rights of Mother Earth. We do so, first, by sketching the juridical-political context within which these statutes were drafted and adopted, and then by analyzing the relevant constitutional provisions that provide the basis for the laws of Mother Earth. The third part forms the bulk of the discussion and details the background and the most relevant provisions of Bolivian statutes with a view to enabling a deeper critique in Part 4, in which we critically evaluate both the symbolic and the theoretical significance of the statutes as well as concerns related to their practical implementation. Insofar as the rights of nature paradigm has now become a truly global debate and a consideration in transnational comparative legal borrowing practices, our analysis aims to reveal the Bolivian experience, which could be instructive for civil society groups, academics, politicians and legislatures in a transnational setting.
As pressures on water resources increase, the demand for innovative institutional arrangements, which address the overuse of water, and underprovision of ecosystem health, is rising. One new and emerging approach is the use of legal personality to protect water systems in law through the granting of legal rights to rivers. This constitutes a significant development in the fields of environmental law and water resources management, yet little analysis is available of how the approach has been used and applied. We critically examine the new legal rights for rivers using three case studies from Australia, New Zealand, and India. We analyze how legal rights have been created in each case, and the complexity of enforcing these legal rights to protect the rivers. We conclude that legal personality could be a useful alternative approach for river management, provided that the new legal rights are given sufficient force and effect.
Today, numerous constitutions provide for a rights-based approach to environmental protection. Based as they are on an instrumentalist rationality that seeks to promote human entitlements to nature, the majority of these rights remain anthropocentric. Although there are growing calls within academic and activist circles to reorient rights alongside an ecocentric ontology, only one country to date has taken the bold step to bestow rights on nature in its constitution. The Ecuadorian Constitution of 2008 announces the transition from a juridical anthropocentric orientation to an ecocentric position by recognizing enforceable rights of nature. This article critically reflects on the legal significance of granting rights to nature, with specific reference to Ecuador’s constitutional experiment. It first provides a contextual description of rights in an attempt to illustrate their anthropogenic genesis, and then explores the notion of environmental rights. The following part traces the discourse that has developed over the years in relation to the rights of nature by revealing aspects of an ecocentric counter-narrative. The final part focuses specifically on the Ecuadorian constitutional regime and provides (i) a historical-contextual discussion of the events that led to the adoption of the rights of nature; (ii) an analysis of the constitutional provisions directly and indirectly related to the rights of nature; and (iii) a critical appraisal of whether those provisions, so far, measure up to the rhetoric of constitutional ecocentric rights of nature in that country.
Revisión de las principales ideas en discusión sobre el Buen Vivir. No se pretende defender una única definición del Buen Vivir y como se verá en la revisión, no es posible ofrecer una que sea aplicable a todos los casos. El Buen Vivir en este momento está germinando en
diversas posturas en distintos países y desde diferentes actores sociales, que es un concepto en
construcción, y que necesariamente debe ajustarse a cada circunstancia social y ambiental.
This essay is an analysis from the Andean vision of the concept of Good Living based on the Ecuadorian Constitution, drafted in Montecristi and approved in 2008. In it, the Good Living is a right recognized along with the rights of the Nature. From the contents of this Constitution emerge multiple proposals to promote fundamental changes, built up over many decades of resistance and social struggles in which were built alternative development proposals and even alternatives to development, as is the Good living for the development of citizens and peoples.
Resumen Las tensiones generadas cuando el concepto de buen vivir aborda la dimensión ambiental quedan en claro al comparar las nuevas constituciones de Bolivia y Ecuador. Mientras que en Ecuador se reconocen los derechos propios de la Naturaleza, y se apunta a una postura biocéntrica, la postura boliviana insiste en que un Estado debe industrializar los recursos naturales. Esto expresa la persistencia de aspectos propios de la Modernidad, con un antropocentrismo asentado en el dualismo Naturaleza-sociedad. El buen vivir necesariamente debe incorporar una dimensión ambiental, que desde el biocentrismo, le per-mita superar la herencia moderna, y transitar a otros desarrollos, con otra rela-ción con la Naturaleza, seguramente más austeros, pero más equitativos. Palabras clave: biocentrismo, buen vivir, naturaleza, modernidad. Abstract The tensions created when the concept of Living Well tackles the environ-mental dimension become clear when comparing the new constitutions of Bolivia and Ecuador. Meanwhile in Ecuador recognizes the inherent rights of nature, and points to a biocentric stance, the Bolivian posture insists that a state must industrialize natural resources. This expresses the persistence of specific aspects of modernity, with an anthropocentric dualism settled in Nature-society. Living Well must necessarily incorporate an environmental dimension, which from the biocentrism, allow it to overcome the modern heritage and transit to other developments, with another relationship with nature, certainly more austere, but fairer.
Resumen: A partir de la Constitución ecuatoriana del 2008 aparece el nuevo concepto del Buen Vivir o Sumak Kawsay en las discusiones sobre el desarrollo. El Buen Vivir propone una vida en armonía con la naturaleza y es visto como una alternativa al desarrollo moderni zante. Hasta ese momento, el Buen Vivir ocupaba una posición marginal en el discurso de la sociedad y del movimiento indígena con su larga tradición de criticar el desarrollo y reivindicar la protección de la naturaleza. Recién en los años 2007 y 2008, comienza el movimiento indígena a hablar del Sumak Kawsay como un concepto único que integra su crítica al desarrollo capitalista. Este trabajo analiza cómo evolucionaron los conceptos de las organizaciones indígenas hasta la introducción del concepto del Buen Vivir, así como el papel de este concepto en el discurso del movimiento indígena.
Abstract: Since the introduction of the Ecuadorian Constitution in 2008, the new concept of Good Living or Sumak Kawsay appears in discussions of development. The concept of Good Life proposes a life in harmony with nature and is seen as an alternative to modernizing development. Until now, Good Life held a marginal position in the discourse of society and the indigenous movement with its long tradition of criticizing development and demanding nature conservation. In 2007/2008, the indigenous movement started talking about Sumak Kawsay as a unique concept that integrates its criticism of capitalist development. Here we will discuss the development of the concepts of the indigenous organizations that led to the introduction of the concept of Good Living and the role that it acquired in the discourse of this movement.
After a period of retreat, critical approaches to development are back in Latinamerica. These include some old components, many of them originated in the region (like some elements of dependency theory), with new issues (like those related to the environmental crisis), and incorporating perspectives from indigenous knowledges. Under this process emerges the current ideas of Harmonious Coexistence, a good life that is not a new instrumental development alternative, but an alternative to thewholewestern idea of development. The different approaches to Harmonious Coexistence are described, including its introduction in the new constitutions of Bolivia and Ecuador, and also the key current debates. Some perspectives are rooted in indigenous knowledges, while others are represented in marginal and critical perspectives within Modernity. Harmonious Coexistence is plural and multidimensional concept, still under elaboration. Nevertheless, these different approaches shared a common political platform, based on features like the rejection to classical developmentalism, a distinct ethics (e.g. intrinsic values in Nature), a decolonial attitude, and the prosecution of alterna tives to development. These components are described and analyzed
Cambridge Core - Social and Cultural Anthropology - Indigenous Water Rights in Law and Regulation - by Elizabeth Jane Macpherson
In 2014, Te Urewera, land formerly comprising a national park in Aotearoa New Zealand, was declared a legal entity. In 2017, the Whanganui River was declared a legal person. This article analyses the grant of legal personality as part of a process that seeks to acknowledge colonial wrongs to hapū and iwi, indigenous descent groups. It argues that a primary purpose of the grant is to regulate human relationships. Legal personality recognises the competing claims of the Crown and hapū and iwi to political authority and allows for the establishment of new legal frameworks, which address who is entitled to act on behalf of the land and river. The article concludes that the settlements should be regarded as constitutional in nature-the grant of legal personality provides a forum for disagreement and compromise, and the opportunity for relationships between peoples, land and authority to be reframed. © The Author(s) 2018. Published by Oxford University Press. All rights reserved.
In March 2017, the High Court of Uttarakhand in India ruled in the Ganges and Yamuna and the Glaciers cases that the Ganges and Yamuna rivers, the Gangotri and Yamunotri glaciers, as well as other natural objects in the state of Uttarakhand enjoy legal rights. In both cases, the High Court established the natural objects as legal minors and conferred guardianship responsibilities on several individuals within the state government of Uttarakhand. These judgments create novel legal rights for nature and, as such, present powerful examples of the increasing relevance of rights-centred environmental protection. The impact of this case law, however, is uncertain. As a start, the legal rights entrusted to nature are underpinned by such broad definitions of 'harm' that it is difficult to envision successful implementation. Further, the Ganges and Yamuna case is currently stayed pending appeal to the Supreme Court, which may decide to overturn the High Court's findings. Still, these cases are important to analyse, especially in light of how constructing nature as a legal subject/legal person shifts environmental law away from public law and into the sphere of private law. Also, the Ganges and Yamuna case draws explicitly on Hinduism to support the sacred status of the Ganges and Yamuna rivers, which, in the current context of the Hindu Nationalist Movement, may prove controversial. © The Author(s) 2018. Published by Oxford University Press. All rights reserved.
Rights of Nature, the idea of extending legal personhood to nature, is today’s most prominent alternative to mainstream environmental governance. Proponents describe Rights of Nature as a grassroots movement of diverse actors opposing commodification of life and anthropocentric dualism of western thought. In Rights of Nature, indigenous cosmologies validate holistic models of life to overcome dualities of nature and humans. We argue this move enacts a paradoxical dichotomy between the West and the rest and, in so doing, treats rights as existing outside western history. In this article, we push against the image of Rights of Nature as a global consensus converging on the inevitability of rights. Applying decolonial, black feminist perspectives on historical mobilizations of rights, we ask how rights for nature becomes rights as natural. We trace individuals, institutions, and ideas associated with Rights of Nature, conceptualized as a Transnational Policy Network. We find tight linkages among a small number of actors, mostly from the global North, who draw on western holism and jurisprudence to present nature’s rights as an indigenous and natural alternative to western development. Rights of Nature is not just connected to the same ideas of nature and law it rejects, but through these connections Rights of Nature universalizes colonial modes of existence as natural.
In 2017, four rivers have been given the status of legal persons: the Whanganui River in New Zealand, the Ganges and Yamuna Rivers in India, and most recently, the Rio Atrato, in Colombia. This extension of legal rights to rivers is groundbreaking and largely unprecedented, and there is a great deal of uncertainty about what this novel legal development will mean in practice. For instance, the rivers have received their legal rights in different ways (via legislation or judicial decision), for different purposes (environmental protection, religious beliefs, and indigenous values) and by using different legal forms as the basis for legal rights and personhood. How will these different mechanisms translate into new legal frameworks for managing the health of the rivers into the future?
This article explores this exciting new development by focusing on two examples in more detail: the Whanganui River in New Zealand and the Ganges and Yamuna Rivers, in India. Each of these examples occurred within a week of each other in March, 2017, and together, they showcase the diversity of legal mechanisms and methods used to create legal rights for rivers.
The idea of giving rights to nature is gaining ground. Already, there are several jurisdictions where nature has a number of rights. There is even a proposal for a universal declaration granting the entire Earth at least the right to exist. Mihnea Tanasescu offers a much needed examination of the concept of giving rights to nature, as well as a first comprehensive analysis of all of the various cases to date, from municipal ordinances in the United States to the constitutional rights of nature in Ecuador. Avoiding partisanship or scorn, this book provides an honest and thorough engagement with both the theory and the practice of enlarging the concept of rights to previously unthinkable territory: nature itself.
The weaknesses of our environmental laws stem in large part from the fact that legal systems treat the natural world as property that can be exploited and degraded, rather than as an integral ecological partner with its own rights to exist and thrive. This article analyzes the recent rise of a new generation of environmental laws which reject the ‘false dogma’ of ‘humans over nature’ and instead recognize our interconnectedness with the natural world and acknowledge its rights to exist, persist, and maintain its vital cycles. The article focuses on the transition from an anthropocentric approach, denoted by the ‘right to the environment’, to a biocentric approach constructed around ‘rights of nature’. This transition is evident in various new legal instruments – the Ecuadorian Constitution, certain Bolivian laws, and numerous ordinances of the United States – which incorporate and respect rights of nature, and grant legal rights to the natural world and enforcement rights to affected communities. These instruments serve as models for legal systems which can steer us towards more robust and effective environmental laws.
In 2008, Ecuador became the first country in history to grant constitutional rights to nature. What is termed the indigenous symbol played a significant role in this event. The rights of nature are used as an occasion to interrogate the indigenous symbol in order to reveal what it does,
as opposed to what it says. The account of the rights of nature originating in indigenous sensibilities is presented, and subsequently critiqued. The argument makes use of the notion of representative claim to show the strategic construction of indigeneity as ecologically harmonious. An alternative
genesis of the rights of nature is presented. It is further showed that the indigenous symbol is employed as a veneer of moral authority hiding the strategic machinations of representative politics.
This response highlights a confusion of categories in Marshall Sahlins’ comments between three different analytical levels: that of the modes of identification, that of the modes of aggregation, and that of the modes of relation.
In 2008, Ecuador became the first country in history to guarantee rights to nature, in its new constitution. This article tells the story of this extraordinary moment in constitutional history, presenting a detailed description of how these rights came about, why they appeared when and where they did, and what they mean to those concerned with this innovation.
The 'Sala de la Corte Provincial' - a provincial court in Ecuador - became the first court ever to vindicate the recently constitutionalized rights of nature. Recognizing the indisputable importance of the rights of nature for present and future generations, the court held the provincial government liable for flooding damages caused by dumping of construction debris. This judicial victory is arguably overshadowed by challenges facing the plaintiffs in seeing the court's order enforced, however. A subsequent case bears witness to the judiciary's vindication of rights of nature in Ecuador with ever increasing legal effect.
This article locates a theoretical reflection on the form of legal subjectivity against twenty-first century complexities and pressures, including the structural complexities visible in biotechnological developments, new hybridities and numerous contemporary theoretical and practical manifestations of heterogeneity, multiplicity and complexity emerging in a range of disciplines, including cybernetics, techno-theory, post-humanism and ecology. The author defends the theoretical and critical utility of understanding the legal subject as an explicit (and explicitly limited) constructus. Criticising the constructed naturalism (and the historical and contemporary exclusions) of the 'human being' of law, the author suggests that the language and concept of the 'legal entity' (rather than that of the 'legal person') draws attention to the patterned 'gap' between law and life (and to related injustices enacted by the form of the materialisation of legal subjectivity) while simultaneously providing the degree of theoretical plasticity now required by the mutable complexities of the twenty-first century and beyond.
Common Knowledge 10.3 (2004) 463-484
My subject is the cosmological setting of an indigenous Amazonian model of the self. I will examine two major contexts, shamanism and warfare, in which "self" and "other" develop especially complex relations. Shamanism deals with the relation between humans and nonhumans; and in warfare, a human other, an "enemy," is used to bring a "self" into existence. I will deliberately use a set of traditional dichotomies (I mean, in the tradition of modernity) as both heuristic instruments and foils: nature/culture, subject/object, production/exchange, and so forth. This very crude technique for setting off the distinctive features of Amazonian cosmologies carries the obvious risk of distortion, since it is unlikely that any nonmodern cosmology can be adequately described either by means of such conceptual polarities or as a simple negation of them (as if the only point of a nonmodern cosmology were to stand in opposition to our oppositions). But the technique does have the advantage of showing how unstable and problematic those polarities can be made to appear, once they have been forced to bear "unnatural" interpretations and unexpected rearrangements.
If there is one virtually universal Amerindian notion, it is that of an original state of nondifferentiation between humans and animals, as described in mythology. Myths are filled with beings whose form, name, and behavior inextricably mix human and animal attributes in a common context of intercommunicability, identical to that which defines the present-day intrahuman world. Amerindian myths speak of a state of being where self and other interpenetrate, submerged in the same immanent, presubjective and preobjective milieu, the end of which is precisely what the mythology sets out to tell. This end is, of course, the well-known separation of "culture" and "nature"—of human and nonhuman—that Claude Lévi-Strauss has shown to be the central theme of Amerindian mythology and which he deems to be a cultural universal.
In some respects, the Amerindian separation between humans and animals may be seen as an analogue of our "nature/culture" distinction; there is, however, at least one crucial difference between the Amerindian and modern, popular Western versions. In the former case, the separation was not brought about by a process of differentiating the human from the animal, as in our own evolutionist "scientific" mythology. For Amazonian peoples, the original common condition of both humans and animals is not animality but, rather, humanity. The great separation reveals not so much culture distinguishing itself from nature as nature distancing itself from culture: the myths tell how animals lost the qualities inherited or retained by humans. Humans are those...
What is it to be a legal person? A review of the jurisprudence of persons reveals considerable confusion about this central legal question, as well as deep intellectual divisions. To certain jurists, law's person should and does approximate a metaphysical person. Depending on the metaphysics of the jurist, the legal person is thus variously defined by his uniquely human nature, by his possession of a soul, or by his capacity for reason, and therefore his moral and legal responsibility. To other jurists, law's person is not a metaphysical person but rather a pure legal abstraction; he is no more than a formal, abstract, but nonetheless highly convenient device of law. This paper endeavours to bring some order and clarity to these scholarly debates about the nature of legal personality. It also considers their implications for feminist legal theorists, with their enduring interest in the character of law's subject.
In Latin America indigenous politics has been branded as “ethnic politics.” Its activism is interpreted as a quest to make cultural rights prevail. Yet, what if “culture” is insufficient, even an inadequate notion, to think the challenge that indigenous politics represents? Drawing inspiration from recent political events in Peru—and to a lesser extent in Ecuador and Bolivia—where the indigenous–popular movement has conjured sentient entities (mountains, water, and soil—what we call “nature”) into the public political arena, the argument in this essay is threefold. First, indigeneity, as a historical formation, exceeds the notion of politics as usual, that is, an arena populated by rational human beings disputing the power to represent others vis-à-vis the state. Second, indigeneity's current political emergence—in oppositional antimining movements in Peru and Ecuador, but also in celebratory events in Bolivia—challenges the separation of nature and culture that underpins the prevalent notion of politics and its according social contract. Third, beyond “ethnic politics” current indigenous movements, propose a different political practice, plural not because of its enactment by bodies marked by gender, race, ethnicity or sexuality (as multiculturalism would have it), but because they conjure nonhumans as actors in the political arena.
Conceptualizing Indigenous Rights in Aotearoa New Zealand
- A Erueti
A. Erueti, 'Conceptualizing indigenous rights in Aotearoa New Zealand' (2017) 27(3) New Zealand
Universities Law Review, pp. 715-743, at p. 717.
In Ecuador, it has been the work of CELDF and Alberto Acosta that has been most influential. See A. Acosta and E. Martínez, 'La naturaleza con derechos: de la filosofía a la política
Part of the difference between the Ecuadorian and New Zealand provisions can be accounted for by different
intellectual histories. In genealogical terms, in New Zealand, the most influential scholars in developing Stone's
early work have been Jacinta Ruru and Alex Frame. See A. Frame and J. McLean, 'Property and the Treaty of
Waitangi: A Tragedy of the Commodities?', in J. McLean (ed.), Property and the Constitution (Hart Publishing,
1999), pp. 224-34, and Morris and Ruru, n. 98 above. In Ecuador, it has been the work of CELDF and Alberto
Acosta that has been most influential. See A. Acosta and E. Martínez, 'La naturaleza con derechos: de la
filosofía a la política' (2011) Polis, Revista de la Universidad Bolivariana 10(29), pp. 479-485. From Stone
spring two very different trees.
The Origin, Differentiation and Role of Rights
- T Berry
Giving Voice to Rivers: Legal Personality as a Vehicle for Recognising Indigenous Peoples
- Ruru
La naturaleza con derechos: de la filosofía a la política
- Martínez
Te Tiriti o Waitangi: Texts and Translations
- Ross
Utu, Revenge and Mana
- Patterson
The Treaty and the Word: The Colonization of Māori Philosophy
- M Jackson
M. Jackson, 'The Treaty and the Word: The Colonization of Maōri Philosophy', in O. Graham &
W.P. Roy (eds), Justice Ethics, and New Zealand Society (Oxford University Press, 1992), pp. 1-10, at 2.
Address to Tuhoe-Crown Settlement Day in Taneatua', beehive.govt.nz (official website of the New Zealand government)
- V O'malley
V. O'Malley, 'Tuhoe-Crown Settlement: Historical Background', Maōri Law Review online articles, Oct.
2014, available at: https://maorilawreview.co.nz/2014/10/tuhoe-crown-settlement-historical-background. See also C. Finlayson, 'Address to Tuhoe-Crown Settlement Day in Taneatua', beehive.govt.nz
(official website of the New Zealand government), 23 Aug. 2014, available at: https://www.beehive.
govt.nz/speech/address-tuhoe-crown-settlement-day-taneatua.
Tuhoe-Crown Settlement
- C Jones
C. Jones, 'Tuhoe-Crown Settlement: Tuhoe Claims Settlement Act 2014;
This link between legal personality, circumscribed standing and representation, more broadly understood, is also present in Te Kawa, which explicitly states that the 'Te Urewera Board is the voice and servant of Te Urewera
- N Tanasescu
Tanasescu, n. 11 above. This link between legal personality,
circumscribed standing and representation, more broadly understood, is also present in Te Kawa,
which explicitly states that the 'Te Urewera Board is the voice and servant of Te Urewera', over and
beyond its legal protector.
Should Trees Have Standing? Toward Legal Rights for Natural Objects’ (1972) 45 Southern California Law Review
- See
- C Stone
Environment as a Marae Locale
- M Kawharu
- R Selby
- P Moore
- M Mulholland
President of the Republic, NoT-5.016.242, Corte Constitucional, Sala Sexta de Revision
- E Talbot-Jones
For a history of the Indigenous origin of buen vivir (see n. 25 below) and the relationship between this and rights of nature, see
- P Altmann