Building a community with nature. A legal community, say legal scholars and philosophers who are making the argument for an alternative view of nature – namely, that of a legal entity with equal rights and standing before the law. Jens Kersten (JK) and Tilo Wesche (TW) share their thoughts about what this legal revolution might look like.
---
For centuries, human behaviour – at least in Western societies – was influenced by the fear of nature, and as a result, we have developed technologies to subjugate it. But now we are increasingly seeing a fear for nature.
JK We have entered– if not in the age of industrialisation, then certainly after World War II – the Anthropocene. Humanity itself has become a force of nature in that it’s radically shaping the Earth. This process is mainly being driven by those of us in the Global North. The combination of individual self-realisation and the economic boom of affluent societies has had catastrophic effects on the climate and biodiversity, not to speak of the global pileup of waste. You described this change as a shift from a “fear of nature” to a “fear for nature”. But in view of how humanity has gone off the rails environmentally speaking, perhaps we should go one step further: our “fear for nature” has now reverted back to a “fear of nature” – the only difference being that we humans are responsible for our “fear of nature”. Not only do we dodge the repercussions of this thought – we find it outright impertinent. That’s why the Global North for the most part has lived according to the principle “After us, the deluge”. But in contrast – and in the truest sense of the word – we must build dams to prevent our self-destruction, even if we can no longer reverse the result of this environmental structural shift of our planet. And in building these dams against our self-destruction, law plays a very decisive role.
The fear of nature, as you’ve just described it, is possibly inscribed in the Nature Protection Article 20a GG (German: Grundgesetz - Basic Law) which was only added to the Basic Law in 1994. This fear seems to be rather deep-seated and hasn’t likely abated in view of the natural catastrophes caused by climate change ...
JK If you read Art. 20a GG closely, you can really see how much the constitutional legislators feared nature in 1994. The first half of the sentence would have been sufficient for setting the national target as constitutional law: “Mindful also of its responsibility toward future generations, the state shall protect the natural foundations of life and animals.” However, in second half of the sentence, they added the “fear clause”, that this protection is only afforded “by legislation and, in accordance with law and justice, by executive and judicial action, all within the framework of the constitutional order.” In terms of constitutional law, this is a given. The fact that the legislators, who amended the constitution, explicitly subjected environmental protection to both legislative and constitutional restrictions shows one thing in particular – that they were afraid that nature could play an all too active role in our constitutional and legal order. That is why the environment is carefully packaged and relativised with respect to constitutional law.
TW The fear of nature has always been a strong force for enlightenment, science and emancipation. Nature was always something we experienced as a fateful force, on whose whims our survival depended. There’s nothing wrong with gaining control of one’s conditions of survival. On the contrary, it represents an increase in freedom which we are very much loathe to relinquish nowadays. This new freedom, however, has become a problem. We must readdress the survival issue in the age of global warming because we’ve always thought of it as mastery over nature. Humans have been able to liberate themselves from nature by mastering it. Mastery over nature is exercised in three ways: through technology, nature is tamed, controlled and mimicked; through economics, nature is exploited as a seemingly free asset and profit generator at no cost; and through law – and by extension – ownership, nature is made available to us. This mastery over nature is wielded in the shape of arbitrary freedom which allows owners to use and consume natural goods – like every other possession – “at their discretion” as it says in § 903 BGB (German: Bürgerliches Gesetzbuch – German Civil Code). Property rights to natural assets are normally restricted by environmental rights. This legal limitation is a paper tiger, however, because environmental protection does not enjoy the same status as our basic rights, including the basic right to property (Art. 14 GG). The right to property has always taken precedence over that of environmental protection. This is the main reason for the sobering results and harmlessness of all previous efforts to protect nature. Just think of the demonstrations in Hambach Forest and most recently in Dannenröder Forest, or the extremely violent conflicts worldwide between environmental activists and state-backed economic interests in Latin America, Africa and Asia.
Viewing the relationship between humans and nature as a legal relationship is still the right course in my opinion. I think that without legal remedy, environmental protection has no chance against economic interests. The only thing that would help is placing property rights and environmental protection on equal footing. Both must have equal status as basic rights. The special twist to this concept is that property rights wouldn’t be weakened or abolished, but just the opposite, they’d be expanded and extended to nature. That would be taking the property rights of nature seriously! And by the way, this idea isn’t beyond the realm of political feasibility. In New Zealand and Colombia, property rights have already been conferred to certain rivers and landscapes. Why not here?
Professor Kersten, do you agree that constitutional equivalence of property rights and environmental protection is enough? Wouldn’t we actually have to bury the paternalistic idea that we have to “protect” nature? And if so, what’s next?
JK On this point I completely agree with Mr Wesche. Art. 20a GG only provides citizens with the comforting illusion that we have sufficiently regulated the protection of nature and animals. But in view of our environmental derailment, this has now become a very dangerous illusion. The “environmental state principle” as put forth in Art. 20a GG does not adequately address the environmental challenges we now face. Indeed, the provision has never really become legally relevant in almost 30 years – and not because there were no environmental problems, but because the article is simply much too harmless with respect to constitutional law. The protection of the environment is only understood as an objective principle; in competition with individual, social and economic interests, it simply cannot attain equivalent political and legal heft. Against this background, if we consider the legal relationship of property and nature, we are presented with an exceedingly ambivalent perspective. On one hand, it could be the case that property outweighs and “supplants” nature in legal deliberations. On the other, we have also observed since the 1980s – or more precisely, since the Nassauskiesung decision by the Federal Constitutional Court of 15 July 1981 – a legal trend that can be described as the “environmentalisation of the property guarantee”. What this means is that the right to property – as regarded by constitutional law – substantially differs from other basic rights and freedoms, such as the freedom of speech or religion, in that it is a basic right influenced by norms. This means that democratic legislators have leeway to define property – and this also means lending it an environmental aspect. With ownership comes responsibility – as the Basic Law states – and this not only concerns social, but also – and especially nowadays – environmental responsibilities. In this way, it is worth taking the property guarantee seriously, and by extending it to nature, substantially expand the possibility of solving social, economic and environmental conflicts. In view of the rights of nature, I would slightly modify the legal emphasis though: If we are to recognise nature as a legal subject, then we should allow it to safeguard its diverse interests in our world.
What you’re proposing is nothing less than an environmental legal revolution! What would that involve?
JK Yes, we need an environmental legal revolution. The basic idea of this revolution is quite simple, but at the same time, far-reaching and sweeping. Until now the constitution has regarded nature as only a passive object deserving protection. What we need to do now is to recognise nature as an active subject with rights in our constitutional order. We would recognise animals and plants, landscapes and the climate as legal entities which – like ourselves – possess a wide range of interests. This would give animals, for example, the right to integrity, life and movement, or in terms of their ecosystem, the right to the inviolability of their home. It is by no means inconceivable that animals or landscapes could become economically active and own property, for example, if they were to operate their own nature park. As environmental legal entities, they would also have the right to a legal hearing, and above all, effective legal protection. This environmental legal subjectivity of nature might sound surprising at first. It is exactly this strategy of regulating legal subjectivity that we have – one might say “always” – adopted with respect to economic capital, for example, by legally recognising or legally empowering corporations or limited liability companies as legal entities. As legal entities, they enjoy personal rights and especially basic rights (Art. 19 (3) GG) which enable them to actively pursue and exercise their interests within the legal system. And as little as human dignity comes under attack by recognising the personal rights and basic rights of a corporation or limited liability company, so too would human dignity be preserved were we recognise the rights of environmental or animal entities. Like a reflex, the objection immediately raised is, of course: behind every economic legal subject, there is always a human somewhere. But for one thing, this “human factor” is often very abstract, for example, when you consider large corporations, banks and financial service providers. Secondly, we also recognise foundations – that is, purely amassed capital assets – behind which there is no single person. In other words, recognising the rights of nature is not a rational problem, but rather a matter of habit. It doesn’t entail installing an “environmental dictatorship”; it’s simply a matter of fairness. In our legal system, economic capital is recognised as a legal subject that plays an active role in protecting its interests – often at the expense of the environment. Consequently, it is only fair that the environmental capital of this earth should also be allowed to play an active role as a legal subject in our legal system to safeguard its own interests. In legal practice, one would call this “legal equality of arms”. No, it’s not an “environmental dictatorship”, but just the opposite – environmental liberalism.
The idea of nature as a legal subject puts into question a fundamental, philosophical opposition we have long held in our (Western) world view: namely, that human beings are distinct from nature. One could argue that in the Anthropocene humans have been forced to regard themselves again as part of nature. As I see it, one could counter such “humility” by projecting what used to be genuine human abilities and decisions onto technologies and artificial intelligence. Should we be considering entirely new legal rights of nature with respect to machines and algorithms?
TW No, I don’t think so. You have to differentiate more precisely. Granted, digital technologies and nature possess similar dynamics with which they have decoupled from human actions. Yet there exists a fundamental difference between them. Technology means – as defined by the Greek root “techne”, that which is produced or created. Even the most advanced, sophisticated technologies, such as those used in self-driving vehicles, are artefacts, nonetheless. Nature, on the other hand, refers to what is naturally grown – as embodied in the Greek word “physei” – which in contrast to technology, is not manufactured or produced. In certain ways, humans are distinct from nature, but in others, are quite part of it. On one hand, humans are characterised by their freedom from natural constraints. In contrast to animals and ecosystems, humans can offer and demand reasons for the lifestyles they desire and what suitable institutions should be established to this end. It goes without saying that humans – due to their physicality and dependence on natural livelihoods – are inseparably linked to nature. The human condition, however, is not completely restricted to being part of nature. For our capacity for self-determination is also what distinguishes us from nature. Those who refuse to acknowledge this difference run the risk of either naturalising humans or anthropomorphising nature. Human freedom cannot be equated with nature either; as the Danish philosopher Søren Kierkegaard put it, man is not a potato. Nor should human abilities be projected onto nature; beyond a simple visual significance, nature does not possess any needs, any interests, intentions or goals.
Would that mean that nature as an environmental subject without the qualities you mentioned could not attain equivalency with humans as so-called natural subjects who lay claim to nature?
TW In place of that tradition, we must be aware that humans and nature have something in common. This commonality does not lie in the fact – as the French sociologist Bruno Latour argues – that humankind, like every ecosystem, is part of a global network, that Latour calls “Gaia” in reference to James Lovelock. Rather, both humans and nature are part of a shared common ground. And this common ground is law. Human rights and the rights of nature make them members of the same legal community, within which humans are no longer distinct from nature; rather both are equal subjects before the law. In my opinion, this is where the cohabitation of humans and nature can be found. And this has significant consequences for our treatment of nature.
What conditions would have to exist so that humans would strive for cohabitation with nature? Could we appeal to empathy, perhaps, as the most plausible course with regard to subjective animal rights?
TW That’s a very important question! An ethics of interest which relies on human empathy is certainly commendable but wouldn’t get us very far. For one person finds nature sublime while another thinks it’s just boring; one is receptive to the suffering of animals, and another isn’t. Because the ability to feel empathy is not a generalisable character trait of humans, it cannot serve to guarantee the rights of nature, which every person would be required to respect. We wouldn’t make the legitimacy of human rights dependent on whether someone feels empathy for others, would we? It would be much more promising to try deriving the rights of nature from the rationality of current law, for then the rights of nature would merely express that which is already recognised by law. Nature can be recognised as a legal entity, but not as a moral or ethical person. Ecosystems like landscapes, rivers or forests do not possess moral claims to freedom or ethical claims to a good life because they are not agents capable of taking action. Through global warming, pollution and species extinction, it’s not moral norms or ethical values being violated, but rather the rights of nature.
As an equal legal subject, nature wouldn’t only have rights but also obligations. What kind of obligations would these be, for example, in the case of rivers or barbastelle bats?
JK Naturally, the recognition of the rights of environmental or animal entities can come with the obligation to comply with environmental standards and regulations. As an environmental entity, a river would be obliged to satisfy German and European water laws. And even the barbastelles you mentioned could assume legal responsibility for the functionality of their ecosystem if endangered by human intervention. In such a case, they can sue for an injunction. This too is not all that unusual from a legal perspective. For instance, economic legal entities are obliged by law to publish their balance sheets and fight corruption; and should environmental or animal entities reap an economic profit through operating their nature park, they could be taxed like any commercial enterprise. This presents no legal problems whatsoever, it’s only – as I said before – unusual.
Professor Wesche, earlier you mentioned how some Latin American countries like Ecuador and Colombia have already anchored Pacha Mama (Mother Earth) as a legal subject in their constitutions. Every citizen has the right to demand that the state preserves or restores nature. Could a similar provision serve as a model for constitutional amendments in the Western world?
TW Yes and no. There are two things we can learn from the constitutional guarantees of nature rights in Latin America: first, the simple fact that the legal subjectivity of nature can be translated into constitutional law, and second, a certain view of nature as a relationship between the value creation of nature and its rights. The culture of Pacha Mama is based on the concept of the fertility of the earth and the value that nature engenders for a good life (“buen vivir”). Consequently, natural assets deserve protection because they contribute to the value of life for human beings. They perform so-called ecosystem services, e.g. pollination of plants, filtration of water, regulation of erosion, stabilisation of weather, formation of humus, provision of medicinal substances, energy carriers and building materials etc. Natural assets therefore are not worthless things that humans can simply make use of without paying any compensation. Those who use them are obliged to ensure their sustainable use. And this is where the similarities end. The ultimately religious concept of Pacha Mama cannot be transferred to the secular constitutions of Western nations. Its validity depends on a certainty of faith and is limited in this respect to a certain religious community. Those who do not share this faith would not have to legally recognise the rights of nature. What we would need is a secular justification of natural rights, the recognition of which would be independent of one’s personal convictions. I don’t see any problem in this because the rights of nature can be easily justified on the basis of created value.
In 1996, just two years after Art. 20a was incorporated into the Basic Law, a measure was put forth to add a provision to the Rome Statute of the International Criminal Court in The Hague making ecocide the fifth crime against peace after genocide, crimes against humanity, war crimes and the crime of aggression. The measure still hasn’t been passed. In France, President Macron has recently pledged to make ecocide a punishable crime at the national level and to hold a referendum on the matter. Do (nation) states have the obligation to stop climate change?
TW I would say so! But it depends on how such an obligation is justified. The challenge is to reconcile property rights and environmental protection. The justification could be expressed as follows: property is justified by the right to claim ownership of the performance of a service; whoever contributes to the creation of value is also entitled to the corresponding share of that value. Now nature – being an ecosystem service provider – is itself a source of value creation. It is therefore entitled to own its resources; by the way this corresponds to the jurisdiction in New Zealand where the Whanganui River belongs to itself. This means that using natural resources is equivalent to using third-party property, in this case, nature’s property. According to property protection laws, third-party property may neither be destroyed nor damaged; in other words, it obliges the user to treat such property in a sustainable manner. Whoever uses natural assets are thus obliged to protect the environment. The obligation to protect the environment is therefore embedded in our current property laws. In order to justify it, the defenders of liberal property need to be convinced of nothing more than what is already coming from their own lips.
The questions were asked by Friederike Tappe-Hornbostel.
