S1E6: The River Knows Where to Go

Back in the mid-1960s, Walt Disney wanted to build the resort. in what's known as the Mineral King Valley. He envisioned a state of the art facility and theme park that would bring millions of families every year. There's just one problem. The resort needed a highway, and to build that they would have to cut through six miles of protected forest. Environmental advocates were furious, the Sierra Club filed a lawsuit that eventually made it all the way to the U. S. Supreme Court.

Unless temporarily enjoined, the implementation of those plans would cause irreparable harm to the special conservation interests of the club. And to the public. But the justices refused to stop the development, stating that the Sierra Club lacked even the standing to sue. And to the court too, I believe.

For this case, in a very real sense, is the ultimate case on standing. In a lawsuit, there must always be an injured party bringing the case. And it wasn't the Sierra Club's trees getting torn down or their land being leveled. If any group has standing because it has an intellectual or emotional interest, does it not inevitably follow that any individual

Who asserts an evidence likewise has standing to raise these legal questions. But in the dissent, written by Justice William Douglas, he said something that if taken seriously could change everything. He suggested creating a federal rule that would allow the inanimate object about to be spoiled to be the injured party. Basically, give nature the right to sue. I'm Tom Ginsberg. And I'm Claudia Flores. And this is entitled.

Podcast about why rights matter and what's the matter with rights. Today, should nature have rights?

Okay, so maybe the idea of giving nature rights sounds a little bit out there. But it's kind of fitting that we saved the most surprising idea for the last episode of the season. Absolutely. But I will say, this idea really isn't all that strange to non-Westerners. In fact, the idea of nature having rights predates the whole idea of Western laws. The indigenous people in Argentina, Bolivia, Chile, Ecuador, Peru, where my family's from.

celebrate and honor Pachamama or Mother Nature, who they view as a living spirit. It's essentially an example of people ascribing personhood to nature. And it's not like we haven't ascribed rights to personifications outside of human beings before. We create rights that protect companies and corporations as legal persons all the time. But when it comes to nature, we always talk about protecting it after the fact.

Climate change is now rapid, widespread, and intensifying. That is according to a devastating report by the UN's intergovernmental panel on climate change. We all know this. Just look around. Well, about a third of the population is broiling in a heat wave tonight. Nearly 110 million Americans are under alerts from Nebraska to Georgia. Melting glaciers.

Ice shelves in the Antarctic breaking off into the ocean. Forest fires. Australia's bushfires have devastated that country's wildlife and their habitats. The effects of the climate crisis are all around us. And we often look at this as a problem of industrial incentives in a capitalist system or a lack of cooperation among national governments.

What about the law? Could giving nature rights change this whole conversation? And it's not just some concept in an academic journal, it's actually happening. There's a worldwide movement to institute this idea. In two thousand eight, Ecuador became the first country to enshrine legal rights of nature in its constitution.

Bolivia followed a few years later. In New Zealand, the government enacted a treaty a few years ago with the indigenous Maori tribes to grant certain natural objects, rivers, forests, the status of legal entities with the tribes as their guardians. In Bangladesh, the highest court ruled a couple of years ago that all rivers are living entities with legal rights. and had appointed a government agency to be their legal guardian.

In the US, an environmental group in Florida is suing a developer on behalf of a network of streams, lakes, and marshes in Orange County. But there's been a lot of debate about whether or not this is the right direction for environmental protections to go. So let's try to understand what's at stake here, because it's big. Not only the entire earth big, but also how we understand rights big. To help us understand what is motivating this movement. Let's go to Franklin.

The mission is to ensure that natural resources are managed for the benefit of the current and future generations. A lawyer and the head of a Ugandan nongovernmental organization called Anarda. Advocates for natural resources and development. Frank and Inarda were largely responsible for a 2019 Ugandan law called the National Environmental Act. which recognizes nature's right to quote unquote exist, persist, maintain, and regenerate its vital cycles.

Structures, functions, and its processes and evolution. This law gives any person the right to bring an action before a court for infringement of those rights, and it requires the creation of regulations to carry it out. Frank first heard about the Rights of Nature movement in twenty fourteen from a woman at another organization who started talking to him about something called Earth Jurisprudence.

And I said, I think this this woman must be confused and crazy. Frank was not on board. I mean I met her with scorn and humor. But he was curious. I said, what is this? She gave me a number of books to read here and there. And then later I was converted and I became a preacher. A preacher of earth jurisprudence. It's a philosophy of law and governance based on the idea that humans are part of a wider community.

along with other living beings in the web of life. It is a beautiful concept, but all jurisprudence needs Justification? Okay, the the justification derives virtually from the current deterioration of the environment. And the obvious fact that the Western laws are not in position to defend or kind of assist in implementation of uh protection of the environment. In other words, the law legitimatizes the destruction of the environment. That takes us back uh law we adopted in nineteen zero two.

is anthropocentric. It was meant to protect human beings. The point is that before then there were laws, especially indigenous traditions and customs that hooked communities on how to regulate This is an important thing to underscore. The idea of laws didn't just appear in the West thousands of years ago. Indigenous people have had laws governing This clan must respect a certain plant, must respect a certain animal. You don't plant around this.

You don't cut this kind of tree since you're rated to that plant. And what makes our concept of laws around nature inherently any better than theirs? And so It is on that aspect that sort of a recollection of who people were before things got where we are can be instrumental in reclaiming what is already, you know, uh destroyed. Will recognize an independent agent in nature.

that has certain goals and expectations and that those will be protected in law? Yes. The idea is to have a dual legal system because uh we cannot completely do away with the existing legal framework. If you cannot tear down constitutions the way they are, My experience in Uganda is that once you speak about nature, mother earth and uh the increasing deterioration of wetlands, riverbed systems and all that, the lawmakers, the politicians.

are quick and eager to listen. So but of course what is done in practice can be different because uh when the investor comes in, they are also quick and eager to allocate. We see this all talk and no walk attitude on climate change all the time. Which is why a binding force like a law could be useful. If you look at our law, for example, they are they're now talking of having certain conservation areas for which rights of nature can be applied.

Of course, this does not mean that the others that are not prescribed do not have rights. But I see a tendency here to say, can we have like uh Lake Victoria, a conservation area, can we have like Queen Elizabeth National Park? So, certain aspects will be picked out specifically for protection.

And the danger this might have is that once you pick that out, then the rest will still be re left to the dogs. So we have now a new concept or an old concept being brought into this modern Western legal system. And of course that means that at the end of the day, someone, a human being, has to show up in court or in the legislature to articulate it, push for the rights of nature.

And my question is, how do we figure out who that is? How do we figure out who gets to speak for nature? I'll answer with a question. How do you figure out who's supposed to speak for a cooperation? How do you figure out who is supposed to speak for a municipality? We are saying that there's another group that kept that traditional legal system, and these are indigenous communities.

So these indigenous communities understand and communicate with nature, just like the shareholders and board members understand how the company is operating. So those are people who are in a better position to supervise, let's say if it's a lake. Certain seasons you cannot go fishing. These supernatural sites are managed by custodians. and there are places of spiritual significance where minor custodians know this is what nature wants.

But as I said, because of a dual legal system, you have to now incorporate the executive or the central government or the local government. Então, se você tem uma equipe de nove pessoas, as custodias, ou seja parte da comitê, então você vai ter seis de vocês custodias. three are from the central government. That is a kind of deal legal system. And I will tell you what.

The custodians are always the first people to know what's happening. If it's a a pollution at the lake, they know it's a pollution. You don't need to drive uh five hundred meters to the lake to find out. They already know. So that's why they are the most or the first age providers of nature. I love how you are not separating nature from human.

you know, that it's these these these human communities are in some sense the custodians. And I think a lot of lawyers here, oh, rights of nature, how can that be? Only humans have rights. But uh when we see humans as connected with and part of nature, then we all have a responsibility, even a duty to protect those things. It's really just wonderful to hear you talk about. I think that the essential thing is that we need to reframe our perception and the perception of love.

Uh, because you know when you have a picture, until you get it out of the frame, that's when you know how to put another frame. Today we consume, I think, almost one point eight times more than what nature can produce to feed us.

So in terms of business, we are consuming not only the income but also the capital. And the best way is to change our ways, reframe our thinking, reframe the institution, set up how we relate with nature, how we treat it, but also empower indigenous communities and these other people who cooperate with nature on a daily to really save it and save ourselves in the long or in the short run.

Tom, I have to say I do find Frank convincing. I would feel much better about our efforts to protect the environment if they were in the community's hands as guardians. I agree. What he has to say seems so obvious. Of course, communities that are intimately connected with an area are gonna make better decisions about it than some corporate interests that are many miles away.

And undoubtedly recognizing nature as an agent with rights will generate corresponding duties, which is where some of the barriers are. You know, a real recognition of the duty can move us beyond thinking. Right. And I think what the movement is trying to do is also move us away from thinking about nature as individual units. A river or a forest, but think about the way in which all of these systems are really interdependent and interconnected. Yeah, but that's tricky, right?

Because we do in fact have basically a system of private property where we've already broken up nature into lots of individual parcels. So that sort of forces us to think about this river, this force, this mountain, as an individual entity within the broader whole, right? And we might find ourselves in the same tricky position as we normally do with rights. which is that rights have to be balanced against one another, and sometimes they conflict.

So what happens when what's good for a river is not good for a tree? Right, and what's good for the river and tree are sometimes not good for the human. Let's not forget our rights. There are many ways in which our modern life with its ability to fulfill many other rights is dependent on the destruction of nature. Right. And not everyone thinks this is such a great idea, do they? No, they do not. We'll explore that after the break.

If you're getting a lot out of this podcast, there's another University of Chicago. work show you should check out. It's called Big Brains. This brings you the engaging stories behind the pioneering research. Change how you see the world and Academic thinking with big brains, part of the University of Chicago Podcast Network.

The rights of nature sort of force us to rethink some fundamental relationships, chiefly the relationship between humans and their environment. And in North America, one place to start is to go back to indigenous ways of interacting with nature. and thinking about nature that were dominant, of course, before contact with Western civilization. So to guide us, we wanted to go to someone who's been thinking a lot about these issues from this perspective. I'm Aaron Mills.

I'm an Ananishinabe man from Kuchajing First Nation in northwestern Ontario, Canada. I'm an assistant professor at McGill University Faculty of Law, where I have the privilege of being the Canada Research Chair in Indigenous Constitutionalism. and philosophy. So Aaron is a lawyer and a philosopher who thinks a lot about how indigenous approaches and modern legal systems interact and may be compatible. We asked him what he thought of the rights of nature movement. This approach

Misdiagnoses the root problem. So I don't think it achieves what its proponents believe it does. Because what are the assumptions built in? The assumptions are that nature, say a tree, needs to have its interests protected, right? It has certain claims against others, and someone has to speak for those. And so what we're doing with this rights of nature approach

is essentially extending a kind of uh liberal system of law to the entire world. And so to my mind, it's it's sort of the liberalization of Earth. That that profoundly fails to address, for instance, climate change. You it you still have the same problem of externalized costs. And so you might protect this river or that mountain. But it's still autonomous bodies pursuing their own rational interests, making claims as against others.

And there's no sense of being already in relationship and pursuing projects of mutual benefit and of mutual constraint. And we're staying entirely within the Western world, but we're now bringing Earth into it. And so the argument that my career is largely about

is the other one, right? What we have to do instead is go down to the philosophical foundations and share those with non Indigenous folks. Invite them in. Say this is for you too. And not impose it on them. Invite them and say, If you find our way of law and governance appealing It is replicable in your house. What this approach does is it makes the whole world earth instead of

you know, making the whole planet in the sort of like liberal humanist kind of image. We're instead joining into the logic and structure of Earth community. instead of imposing our idea of how things ought to be on it. So in a sense, it's the exact opposite project. And so even though rights of nature is just so clearly well intentioned and I think so obviously stands to produce shorter term gains in the larger scale, it is a very significant move. To actually deepen.

the road we're on. And I feel it's the wrong road. It's why we're we have anthropocentric climate change. Oh man, so Aaron's concerns are that the rights of nature movement extend a sort of Western liberal tradition of rights to all of planet Earth. And that it doesn't really change or transform the way we are thinking about our relationship to Earth and each other. Yeah, and we've heard this concern with rights before. Rights are basically something that come out of the Western legal tradition.

And then there are many, many other cultures, of course, which have very different sets of values. Which may privilege duties or privilege community interests over the rights of an individual. And the U and I would argue that human rights is trying to account for these other world views, and that the goal of human rights really is to create a global community. that recognizes the way in which it is interdependent and interconnected.

Not only that communities are dependent on each other, but that nature and humanity is also dependent on each other. But I have to admit, of course, there's still this idea of individual components and individual units in the idea of right. and m vesting those individual components with rights and entitlements may not be the answer. At least I think that's what Aaron is saying. So we asked him to explain what he saw as the alternative to these kinds of legal rights.

And he distinguishes between what he calls Western legality and rooted legality. So that terminology is an effort to reflect the understandings that I slowly developed by sitting with elders in my community and other nearby communities. about the way that they think about and enact law. And I came with the assumption that law essentially meant the same thing. So this idea of legal norms, how they're enforced, and the kinds of institutions that create and interpret them.

courts and legislatures. And so I was looking for our version of that. What I came to understand is that there is no such thing. I was in a sense posing the wrong question. We don't have a version of those things. We have something different altogether. And so I use this language of legalities. to try and reflect that one can't just come in and look to do this kind of mapping, which naively I initially thought I could do, that one has to begin by

Understanding that there are going to be a completely different set of institutions. In fact, they don't even track. the executive, legislative, and judicial functions that law in the typical sense that most of us think about it does. And ultimately if we track it all the way down, really one has to start to understand. Something about indigenous worldview. Questions like what is a person? What is truth?

What is the relationship between humans and Earth in order to understand eventually an indigenous conception of law? So when you say that there is no

system of law, no discrete institution of law. What exactly does that mean? Does that mean that there is not community enforced sense of what you can do and what you can't do with consequences? Like can you just define it for us a little bit better? Yeah. So Most of the conversations I'm used to having with non-Indigenous folks, their starting point for imagining even the potential of what law could be. um is something within a nation state. And so they take as g simply as given the idea.

of courts. and legislatures, uh and an executive order of governments, that sort of administration, and indigenous peoples, our law doesn't have those kinds of institutions. it doesn't have that kind of separation of powers. Because it doesn't come from a centralized state. Our communities, in the sense of political community, are organized through kinship, not through some form of agreement.

Whether political theorists talk about a social contract or arguably the dominant Political philosopher in organizing law and governance in our lives today, John Rawls would uh have spoken about an original position, but always some sort of device that is designed to articulate the idea of agreement. And that's sort of the basis for modern liberal democracies. But it's actually not the case for indigenous peoples. Our device isn't about agreement.

What about kinship? The idea is that we're always already in relationship. We don't need a device to figure out how we can connect and coordinate our interests. Our natural state is one of being so connected. And the challenge is to make sure that we sustain good and healthy relationships. So let let me just follow that a little bit. So under the social contract theory of law.

Part of the reason we need law is to define how we should relate to each other, right? Because we need contours and boundaries and yeses and no's, right? So what you're describing, which is a a different, a different system, right? So this idea that we're that there's an existing relationship. You don't question the relationship and you don't have to create the relationship or define the relationship. So what is law doing in that context? What is the purpose of law? What purpose does it serve?

Yeah, so it serves the same purpose of ordering community. The point is that what that means, though, is very different. And so in the sort of social contract or original position kind of idea, the philosophical understanding is that people are fundamentally autonomous. We're units unto ourselves. And because of that, um, we all have uh different interests and abilities, and so there's a real challenge about how to coordinate them and how to sustain our cooperation.

And so law meeting the need of sustaining order in community has the the task of limiting the kinds of ways that we can impose on one another, given that each of us is uh a being unto ourself and has no natural connection to the other. But in a society that starts with the other premise, where we are already connected. Um, law isn't actually needed to limit or constrain the kinds of claims that one person might make of another.

Those issues arise, but it's not the fundamental task of law because being always already connected to everyone else. the issues that arise are different. And so the sort of core need for order isn't about stopping any one of us from imposing too much or claiming too much of someone else. It's about coordinating the relative flow of gifts and needs that sustain our already existing relationship.

So the dark version of rights is this very, you know, I am my own unit, you are your own unit, you may not enter my space and I will not enter your space, you know, unless I have a right to. Um, but there is something about rights that's also trying to create relationship and trying to understand relationship. I guess I'd just like to get your reaction to that. Um, just your thoughts and thinking about these two systems and what they're trying to accomplish.

Well the human rights is is a good example and there's debate about this, right? And I certainly want to concede the point I think you're making that um human rights by and large, are certainly intended to be about caring for persons. And that's a deep commonality. They're about articulating a minimal level of respect that has to be afforded. to all humans just by virtue of their humanity. But I think the way that it does so is

where my worry gets tweaked. And I think you said it yourself, right? It it does so within this philosophical framework of how people are positioned as against one another. And so you need human rights. if what you are imagining is that people are disconnected such that their basic dignity uh needs that kind of protection and If instead we were to focus on building someone's sense of what it is to be a person in a relational way, we don't actually have to think about

the most foundational needs people have in terms of the sort of Hobbsian like how we'll be at each other's throats if we don't have those adequate protections. And and part of the discursive shift is from rights to responsibilities on the understanding that responsibilities they presuppose a relational approach. They exist inside of relational boundaries. And so this to speak of a relationship-centered way is already to speak about responsibilities.

So Tom, Aaron is really describing a pretty different way of thinking about the individual and the individual's relationship to the community and how communities are organized. So presupposing this level of interdependence and connectedness and then letting law generate from that. Yeah, and I guess

I don't think that human rights are as different from that as he might be thinking. I mean the fact is we have human rights in order to get people to a basic position of equality in societies which are often riven by hierarchies and traditional ideas, which put some people above or below others. And human rights is actually a way of creating, in my view, more kinship, more community, if they were actually to be enforced.

Yeah, I agree with you. I actually think that human rights does presuppose the fact that community exists. It's in fact an articulation of the obligation that we have towards each other because we're in community. But I also do take Aaron's point that the rights-based model kind of superimposes what could be seen as an anthropocentric response to environmental protection. We're giving nature agency, which comes with a right. But at the same time, we are thinking of nature as a component

of the pre-existing community, the whole planet, but we are thinking of it as separate elements. However, it is separate elements that are considered both individually and as part of the whole. I mean I think that this conversation has been really interesting because what it suggests is you know, you can kind of take a sort of for or against attitude towards

human rights as a whole. But in fact what they're doing is providing us with a kind of language for people to articulate what kind of values they think should be advanced in society, what kind of interests are important, what relationships are to be valued and expressed through law. And that really suggests that the whole field is a kind of conversation, if you will, a dialogue.

That we're having about what we want out of our society. Exactly. We've been having so many conversations this season about how one weighs rights and what we should prioritize. And some of our guests have been concerned that this preoccupation with rights is actually fraying society a bit. Refraying our sense of community.

But when you think about it in the way you've just articulated, we are in the process of having this important conversation in which we are deciding what kind of society we want to be and what rights come along with that. There are different ways to look at it and different ways to prioritize, individual rights, community rights. We also focus on different sides of the coin, rights, and the corresponding duty.

But regardless, all of these elements are incredibly important, and this conversation needs to be had. I think that's right. Sometimes it's unpleasant. Sometimes it involves fighting. Rights often involve conflict and they emerge out of social conflict.

But at the end of the day, what we're then left with is the aspiration to move to a better place. Exactly. Kate Gilmore reminded us on our last episode that human rights is not a beauty parade. It is for the best and the worst of us. And these conversations They definitely create conflict and they're really hard, and sometimes they seem almost impossible, but we need to have them. They are the conversations that will lead us to a better place. I sure hope so.

I'm Tom Ginsburg. And I'm Claudia Flores. You've been listening to Entitled, a podcast about why rights matter and what's the matter with rights. We want to thank our listeners for joining us in this first season of Entitled from the University of Chicago Podcast Network. This has been a labor of love for Claudia and me. And one that I think has been a learning experience full of surprises. We want to thank our producer, Alyssa Eads, as well as Matt Hodap, the University of Chicago Law School.

and the many students and faculty who sent us their thoughts Lent their voices to the podcast, as well as those who supported us with research. We also want to thank all of our guests who generously spent time with us having these conversations. And Claudia, I want to thank you for taking this little journey with me. Neither of us really knew where it would end. end up, but I've really enjoyed the ride. I really have as well.

And join us for next season where we will take on the mother of all human rights, the right to equality. This right means a lot of different things to a lot of different people, but for many, it is becoming, and maybe has always been the single most important. Do you think you know what the right to equality is? Join us for season two.