Anthropocentrism is one of the most destructive ideas in human history. The notion that humans are separate from nature and that nature is a dead resource merely to be used for human ends is at the root of many of the crises now engulfing the world, from climate change, deforestation, catastrophic declines in biodiversity and many more. Sadly, English lawyers had a big hand in imbuing this idea within our both the common law legal system and in our dominant worldview.
Drawing on the biblical injunction of human dominion over nature in Genessis, Blackstone in his Commentaries states, “The Earth therefore and all things therein, are the general property of all mankind, exclusive of other beings from the immediate gift of the creator”. This ‘despotic dominion’ view of human ownership of nature is sadly one of the most entrenched principles in the common law and it has been exported around the world under the auspices of common law legal theory and governance, causing immense harm and damage.
Rights of Nature
It is an urgent necessity for humanity to begin to see nature as more than merely something to be extracted from or dumped into. Instead, we must begin to see it as a living system with its own rights and interests and to incorporate that idea into our legal, political, economic and social systems. How do we begin to deal with a problem so all-encompassing? Environmental law has clearly shown itself to be insufficient for the task, approaching the problem as it does from the same theory that nature is a resource to be used for human ends, but with some management of that resource. What we need is an idea that goes to the route of the problem: both the philosophical and jurisprudential underpinning of the law. In the last 20 years, the ecosystem of interventions we need to implement that idea have begun to be formed around the world, being given the title of ‘Rights of Nature’.
One of the most well-known instances of substantive Rights of Nature is in Ecuador, with Article 71 of the Ecuadorean Constitution stating:
“Nature, or Pacha Mama, where life is reproduced and occurs, has the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes.”
What is perhaps most exciting about the example of Ecuador is that it is not merely a high-sounding constitutional principle with little practical effect. These Rights of Nature provisions have been argued, and upheld, in dozens of cases before the Ecuadorian courts, most famously in the Los Cedros case, where the Ecuadorian Constitutional Court cancelled mining licences that would have destroyed an ecologically rich cloud forest and thus infringe its constitutional rights.
Translating into a UK context
Although such substantive Rights of Nature provisions show that the doctrine is legally possible, they will clearly need translating to a UK constitutional context. This is where barristers could have an important role in drawing the substantive Rights of Nature for a UK context and shaping an Act of Parliament. This could look like a Human Rights Act-style framework for nature, which embeds the Rights of Nature across all of our laws, with reasonable and proportionality tests reflecting the fact that balancing the interests of humans and nature will be of greater importance in industrialised, highly populated countries like the UK.
Legal personhood
Another key aspect of Rights of Nature is legal personhood. It is perhaps a testimony to the ingenuity of English lawyers that we managed to devise legal rights and legal personhood for completely fictitious entities like companies before natural entities like trees and rivers which existed long before humans even came to these islands and which we fundamentally rely on for our own existence.
Giving legal personality to trees or rivers might sound strange at first, but it is already a legal reality including in Europe, where the Mar Menor was granted rights and legal personhood by way of legislation in 2022, after a citizens referendum. Perhaps most interesting, given the similarity of the New Zealand legal system to our own, is the Te Awa Tupua (Whanganui River Claims Settlement) Act 2017. In this Act, the New Zealand Parliament recognised the sacredness of the Whanganui River to Māori people and granted the river legal personhood, self-ownership and a guardianship body to represent the interests of the river and uphold its rights.
It is increasingly clear that the nature rights may well be to the 21st century what human rights were to the 20th century and we now have many examples from around the world about what Rights of Nature can look like. We now need the ingenuity of English lawyers to translate these ideas into our legal system in order halt the destruction of nature and create a new legal system designed to protect and enrich the natural world and all life.
Watch the 21st Annual Law Reform Lecture: Reimagining law for the Earth
Read barrister Fiona Peterson's 'Reflections on the Law Reform Lecture'