Rights of Nature, but not natural rights ?

by John Quiggin on March 24, 2019

There’s an interesting article by Anna Grear in Aeon, criticising the idea that Nature should have human-style rights, and linking to the website of the Centre for Humans and Nature, which has lots more interesting discussion.

I’ve recently written a contribution to a forthcoming book by Tim Hollo, in which I take the opposite view. My central point is that corporations are routinely treated as persons for legal purposes, and that the effect is frequently harmful to Nature. There is in my view, no reason in principle, not to give legal standing to representatives of Nature, similar to that given to the representatives of social constructions like corporations. A lengthy extract over the fold.

If property rights are social constructions, what implications can we draw in relation to rights for Nature. On the one hand, we can rule out essentialist objections, along the lines that the concept of property rights cannot encompass rights for Nature.
There are, of course, practical issues that must be resolved. Neither Nature in general, nor particular species and ecosystems have the kind of agency required to exercise and defend property rights. Rather these property rights must be exercised by humans, bound by obligations to act in line with the interests of Nature, and these interests must also be defined by humans. There is nothing particularly unusual here. Our current system assigns property rights to infants, who are in exactly the same position.

The same is true of property rights assigned to more-or-less abstract collectivities such as BHP or ‘the people of Australia’. While the people represented by these collectivities may have a role in choosing their representatives, they must rely, most of the time on the fiduciary and constitutional responsibilities that bind these representatives.
On the other hand, having rejected the idea of ‘natural’ property rights for people, we must reject this idea for Nature also. Whether or not people (individually or collectively) have moral obligations to Nature, these obligations do not translate directly into property rights/

Rather, any assessment of property rights for Nature must ultimately be pragmatic. Would the creation of property rights for Nature serve to promote the achievement of fairer and more sustainable outcomes (bearing in mind that these terms will themselves be contested). Alternatively, would these goals be better served by an expansion of the current system in which the protection of the natural environment is part of the responsibility of governments, operated primarily through legislative and regulatory constraints on environmentally damaging activities?

The case of bankruptcy law provides an instance where there would appear to be at least a prima facie case for assigning property rights to Nature. There have been numerous instances where mining companies have done substantial environmental damage before declaring bankruptcy and passing the responsibility for any cleanup on to the public in general. In a few cases, such as that of Linc Energy, the damage has been such as to lead to criminal charges.

However, the protections of corporate and bankruptcy law mean that, even in cases like this, the costs fall on the public rather than on the directors and shareholders of the company. Linc was fined $4.5 million and the cleanup costs estimated at $72 million (Smee 2018). The CEO and main shareholder, Peter Bond, dismissed the fine as meaningless and stated that the company would not have to pay anything (McKenna 2018). As always under limited liability, Bond’s own liabilities were confined to the value of his shareholding, which was lost when the company went bankrupt.

An explicit assignment of property rights to Nature might have changed this. If environmental damage were regarded as constituting an unpaid debt to Nature, it might be possible to force a company like Linc into insolvency well before it ran out of cash. Moreover, the offence of trading while insolvent is more clearly established as a basis for prosecution than are the laws under which Linc and its directors are currently being pursued.

Similar problems have arisen in the United States, where mining companies have been permitted to engage in ‘self-bonding’ to cover the costs of reclaiming abandoned mine sites. That is, rather than posting a bond, the companies were allowed to promise to pay the costs of reclamation out of their own assets. As more and more companies (particularly coal miners) have gone bankrupt, governments have been left to pick up the bill. In West Virginia, more than 60 per cent of the future cleanup bill is associated with bankrupt companies.

The problem is made worse by the inadequate level at which bonds are set. In Kentucky, for example, forfeited bonds covered only half the estimated cost of reclamation.
The practice of self-bonding has come under increasing attack. In Wyoming, which has the largest open-cut mines in the United States, proposals are being put forward to limit self-bonding to firms with a strong credit rating and significant remaining production. In practice, very few coal companies are likely to meet the criteria.

This shift is welcome. However, the outcome is a long way from that which would arise if Nature had explicit property rights. In that case, the normal outcome would be that mine owners were required to pay compensation for damage to natural assets as that damage occurred, or even in advance, as is typically the case when mining activities impinge on the value of privately owned land and other assets.

{ 73 comments }

1

Matt 03.24.19 at 10:20 am

My central point is that corporations are routinely treated as persons for legal purposes,
The main thing this means is that corporations can do things like sign contracts, sue and be sued in court, and so on. It’s sometimes taken to unreasonable levels (as it has been in the US), but even in the case of speech rights, say, if corporations didn’t have them, then companies like newspapers, TV stations, book publishers, etc. could be censored. The idea isn’t at all radical or mysterious – it’s designed to meet human ends in a straight forward way.

and that the effect is frequently harmful to Nature.
Well, sometimes, and all too often, but of course only a tiny percentage of the time over all.

There is in my view, no reason in principle, not to give legal standing to representatives of Nature, similar to that given to the representatives of social constructions like corporations.

I’m not sure if this counts as a “principled” reason or not, but the worry I’d have here is that, while it’s at least often easy to figure out who the representatives of a corporation are, it’s not at all straight forward to figure out who the representatives for nature are. The rest of the text doesn’t convince me at all that this is the right way to go. Those are all pretty bad cases, but giving rights to “nature” seems like a kludge at best. If we can do that, why not just change the offending laws more directly, and do what we want in a more direct way? Maybe that would turn out to be harder, and this sort of round-about way is the best we can do, but I’m skeptical. Note also that there would be no reason to think that the people appointed to be the “representatives of nature” will always, or maybe even usually, do what we want them to. That’s another reason to worry about this approach.

2

Roger Jones 03.24.19 at 11:55 am

Hi Matt

and that the effect is frequently harmful to Nature.
Well, sometimes, and all too often, but of course only a tiny percentage of the time over all.’

Could you please tell us what planet you’re from and what measures in place you have there, because being able to compare this with the situation on Earth would be really useful.

3

Chetan Murthy 03.24.19 at 12:59 pm

This is a great idea, but it still feels like “bolting the barn door after the horse is gone”. That is, the problem you’re addressing is one of corporate privatization of gains and socialization of losses. If there were a way to simply prevent this wholesale, that’d be better, wouldn’t it? I remember recently reading that one of the original motivations for the corporate income tax in the US was as a counterweight against the “corporate barrier” on liability, so that corps would pay some part of their earnings back to compensate for society’s picking up all the losses. One might imagine that as losses pile up (e.g. cleaning up all of West Virginia/Kentucky’s coal fields) those could get added to some ledger, and the size of that ledger influenced the “corporate remediation tax” rate for the following year. There sure seem like a lot of things that ought to go on that ledger …..

I realize that this omits the fact that except in large jurisdictions, corps can just escape by not doing business in the taxing jurisdiction (which would cause states to not enact such a tax), so we’d need this to be at the largest-scale possible (e.g. entire US). And the tax has to be across all corps, b/c otherwise declining industries would still shove their liabilities off to the state. I’ve also read that trying to finely-slice who gets taxed what, is friction-inducing, so it’s better to levy a general tax and “get out of the way of business”. Sure sure, let’s go with that *grin*. A single tax for all corps above a certain medium-size, on profits. And designed to bring in a certain percentage of the outstanding ledger each year.

I’d like to believe that if corps saw the percentage of their profits going to mal-feasance by other corps, they’d demand better regulation ….. for the sake of their profitability.

4

Murali 03.24.19 at 1:53 pm

Environmentalists do not tend to be on the poor side of the global distribution of wealth. I don’t see why they can’t just purchase large parts of the wilderness from states or other private individuals and stick a no trespassing sign in front. Maybe build a wall. Perhaps channel that trumpist wall building urge in a direction where a wall would actually be useful.

5

steven t johnson 03.24.19 at 2:16 pm

” While the people represented by…collectivities may have a role in choosing their representatives, they must rely, most of the time on the fiduciary and constitutional responsibilities that bind these representatives.” Since von Hayek and others are dead wrong about the epistemological impossibility of distinguishing needs and wants for infants, the trustee for their property has a sufficiently meaningful notion of what they are responsible for. A trustee for example might correctly deem expending principal to purchase a home, or retain interest to save for university education.

What would be the fiduciary responsibilities of the agents for Nature? The natural world changes all the time, as the geological record attests, so preservation of Nature conceived as prevention of change is ultimately a physical impossibility. This does not seem to be a usable criterion. Growth of capital is a nicely quantitative measure of fiduciary success for an infant’s property, but I have no real idea what growth of Nature can mean.

I know libertarians (and apparently Dean Baker) are convinced rent-seeking is a phenomenon endemic to government. But perhaps rent-seeking might be considered more as a strategy of people using monopoly in land, aka property. To me, it seems like it should be a fundamental premise of economics that unregulated monopoly is deleterious to the general welfare. Thus, it seems like it might be simpler, more effective in the end, to revise the whole concept of property in land?

6

Eric Pedersen 03.24.19 at 4:01 pm

I wonder if you have any thoughts on the recent Supreme Court of Canada decision that bankruptcy does not remove obligations to pay for environmental remediation (https://www.cbc.ca/news/business/supreme-court-redwater-decision-orphan-wells-1.4998995). It still doesn’t seem to allow for going after individual assets of owners of bankrupt firms that don’t meet environmental cleanup obligations, but from what I understand it does treat environmental cleanup costs as a senior debt that takes priority in bankruptcy proceedings.

Canada’s had a pretty spotty history of effectively enforcing environmental laws, but this does seem to point in the direction you’re talking about.

7

Orange Watch 03.24.19 at 8:08 pm

Matt@1:
but even in the case of speech rights, say, if corporations didn’t have them, then companies like newspapers, TV stations, book publishers, etc. could be censored.

Surely in the American case, that is precisely and intentionally precluded by the separate freedom of the press – indeed, while this gets trotted out almost without fail to defend the idea that corporations must have a person’s freedom of speech in addition to the free speech of the individuals comprising the corporation, it becomes difficult to understand what we are to make of freedom of the press if its entire function is subsumed by the sum of individual and corporate free speech.

8

Birdie 03.24.19 at 8:15 pm

If property rights are social constructions then vesting them as the absolute possession of individuals is already quaint, by which I mean irrational and oppressive. Vesting property in corporations and other socially legible entities (tribes, villages, congregations, docent associations) seems more consistent, or would be if “rights” weren’t regarded as absolute.

9

Ebenezer Scrooge 03.24.19 at 10:20 pm

Who is going to represent Nature? And how (or by whom) will this representative be determined? Until these questions have been answered, any comparison with corporations is at best facile. Corporations have a very clear process for determining representation.
Think of a “best interest of the child” determination, without any parents, and megabucks at stake. Think of the history of regency.

10

Jack strocchi 03.24.19 at 11:13 pm

I thought the Crown was the default agent for Nature as principal. It is the custodian of the “rights of Nature” in the same way as a parent is the custodian of the rights of a child.

It is the default owner of all “natural” common property within the state, including nature reserves, air, water sources and mining leases. Which then gives it the right to sue citizens who abused common property.

It already claims the power to regulate the natural environment. So I don’t see any legal barrier to giving the Crown legal guardianship over Nature. Or is Pr Q proposing to let private citizens sue on behalf of Nature?

11

Sebastian H 03.25.19 at 12:47 am

The abortion debate is going to hate this argument.

12

Orange Watch 03.25.19 at 1:37 am

Chetan Murthy@2:

corps can just escape by not doing business in the taxing jurisdiction (which would cause states to not enact such a tax), so we’d need this to be at the largest-scale possible (e.g. entire US)

Is there any good reason why corporations in the US engaging in interstate commerce are chartered at the state level but not at the federal level? Naively, it looks like the only arguments in favor of it is “so they can race to regulatory bottom” and “that’s how it was done when the nation was founded”, while federal corporate charters seem like something that should fall squarely w/in the scope of regulating interstate commerce. I am aware that there are some federally chartered corps, but that area seems like a patchwork mess and very much the exception rather than the rule; again naively, ISTM that corporations that are not localized in their activities should be required to acquire a federal charter and not be able to hide in deferential jurisdictions while conducting businesses outside of them.

13

John Quiggin 03.25.19 at 2:58 am

@11 Too cryptic for me, I’m afraid.

14

John Quiggin 03.25.19 at 3:04 am

Murali “Environmentalists do not tend to be on the poor side of the global distribution of wealth.”

I’m making a list of catchphrases and tropes which inform me that I can ignore whatever follows. “Virtue signalling” is top of the list. I’m now adding tropes regarding “wealthy environmentalists” .

15

V.Iyer 03.25.19 at 6:18 am

Rights are linked to remedies under a bond of law. It may be argued that a corporation should have similar access to remedies as the individuals who compose it. After all, individuals can limit their liability through limited partnerships, Trusts, or contingent contracts. Why not a Corporation?

A different problem arises where- as happens in Indian law- a Hindu deity has legal personality. In a recent highly controversial court case, the Hindu God Ram has been granted as share of the land at his supposed birth-place. What if the ‘holy cow’, or the ‘holy Ganges’ is granted a similar legal personality? It may be argued that if the devotees of the God Ram, or the Holy Ganges, predominate and are of one mind, then, effectively, there is a collection of individuals asserting a right of a particular type. However, unlike a Business Corporation- which has regular AGMs, it is not clear that there is any similar mechanism for ensuring that the rights of individuals are being ‘pooled’ in a legitimate manner.

16

Matt 03.25.19 at 7:00 am

Hi Roger, On the earth we both live on, the vast, vast majority of corporations are very small closely-held corporations. Beyond those, then next largest amount are also fairly small, not closely held but not publicly traded corporations. Of course, they don’t have the influence or power that very large corporations do, but when we talk about corporate personality, it’s important to remember that it’s _mostly_ very small, closely held corporations that are involved. Allowing these entities to do things like sign contracts, sue and be sued, etc. (again, this is mostly what “corporate personality” means) has no discernible impact on the environment. This is one (but only one) reason why I’m convinced that being upset about corporate personality is just a mistake – it’s not the target people should care about.

Orange watch – the “press” clause in the US first amendment is just about _publishing_, as opposed to _speaking_. Press entities don’t (and probably shouldn’t) have any more or different free speech rights than do other legal or natural persons. So, no, at least in the US, that clause doesn’t and wouldn’t do what you suggest.

17

Chetan Murthy 03.25.19 at 9:05 am

John Q@14: I’m actually willing to cut Murali slack, after having butted heads with him pretty violently in previous threads. So while I can understand why you might just write him off for his comment, I’ll try to respond and maybe he’ll see the point.

Murali, surely you agree that the problems John is pointing out, aren’t merely about “virgin unspoiled acres in need of preservation from capitalist rapine”, right? I mean, look at Louisiana, or the Gulf Coast of the US generally. Look at the Hudson River until recently. Look at the Berkeley Pit in Butte Montana, which is slowly growing to eat the entire town, and them from there to pollute the watershed. There are umpteen examples. Basically, these places are *already* horribly polluted by the actions of rapacious capital. And sure/sure/sure there are places where environmentalists are putting up money to create “conservation easements” to prevent development. But that can’t be a *solution*. There WILL be development, there WILL be resource extraction. All “conservationists buying easements” can do, is to SHIFT that development/extraction *elsewhere*.

And we know where that “elsewhere” is *always* going to be: it’ll be to where the people are too poor to buy their way out, too poor to purchase their right to a clean environment.

How else do you think it is, that the waste incinerators (all over America, that are starting up again now that recyclables are no longer accepted by all those poor Asian countries[1]) are ALWAYS in poor communities?

[1] Oh and hahah (with a whimper of sadness) even the way we send our waste to poor countries where poor people process it — a dirty and dangerous job — is another example of the same thing. Reading about the enivronmental impact on that town of ship-breakers in India from all the waste from the ships they break is …. horrifying.

Surely you can see that turning this problem into another version of “when rich people care, they can make sure it doesn’t happen to the parts of the Earth they are about” doesn’t actually solve ANYTHING, no? The Earth’s too damn big, and shuffling around *money* doesn’t change that.

18

Peter T 03.25.19 at 9:43 am

Is there an analogous case here with the independence of the judiciary, and the various arrangements that attempt to secure that? The case for that rests on the broad recognition that no polity can survive without justice – that power that rests on force alone is brittle. “Justice” is, of course, a contested notion, but in everyday matters we try to divorce legal right and wrong from pure politics, and work to make legal right and wrong coincide with wider social notions of right and wrong.

In the same way, no human polity that abuses its environment can survive nor, in the present case, can we hope to escape by migration, colonisation or imperialism. The environmental crisis is both local and global. So arrangements that provide an independent voice – a fourth or fifth arm of government – would seem essential. A Court of the Rivers, perhaps?

19

Chetan Murthy 03.25.19 at 10:18 am

Matt @ 16:

On the earth we both live on, the vast, vast majority of corporations are very small closely-held corporations. Beyond those, then next largest amount are also fairly small, not closely held but not publicly traded corporations.

But this is fallacious thinking, on a par with believing that because most businesses in the US are small businesses, then most employees must work for small businesses. But this isn’t true at *all*: https://www.nysscpa.org/news/publications/the-trusted-professional/article/more-americans-work-at-big-firms-than-small-ones-040717

Since 2014, the latest year for which there is census data, this is no longer the case. At this point, 39.2 percent were employed at either a large or very large company, while 26.5 percent worked at mid-sized companies and 34.3 percent worked at small companies.

[the text says that prior to 2014, the percentages working for large, and for small, businesses were about equal ; the problem is, add in medium-sized businesses and small businesses *still* didn’t employ most workers.]

Just because most corps never pollute, doesn’t mean that most pollution isn’t caused by corps. When sole proprietorships fail, their owners suffer. But when corps fail, their owners are protected by the corporate barrier, and this barrier doesn’t magically cease once a corp is larger than a certain size.

I mean, this is *elementary* stuff. C’mon.

20

Person_XYZ 03.25.19 at 12:44 pm

Like many, I wonder how a person could be appointed to represent nature. If the suggestion is ‘through a democratic election’ then that isn’t too far removed from the current situation. The government is elected (though some would disagree) and people in that government create legislation to protect the environment. Are they doing a good job? More cynically, I fear that if there was a direct election, the people would elect an oil executive to be natures representative.

21

Trader Joe 03.25.19 at 2:03 pm

The last I looked every time someone wants to dig a hole to extract resources they need a permit so elected governments or their appointees are already representing Nature by granting these rights. Similarly the sky – producers of pollutants are subject to limits and permits.

Accordingly I’d say Nature is already being represented – its just that those who are representing it are going a crap job.

As noted above who gets to do the representing is ultimately the question. Right now the “who” is effectively those who would choose to destroy and pollute. You don’t need to change the laws – just change those who are enforcing them. In the US the Obama administration made a start on this, but its been un-done. The EU has been better – but some places (China) its non existent.

22

LFC 03.25.19 at 2:19 pm

Matt
I’m skeptical re your view that freedom of newspapers from censorship depends on the doctrine of corporate personality, and would note that that doctrine underpins the awful recent campaign finance rulings, notably Citizens United. But I’m aware this whole area is one of continuing controversy among the First Am. specialists.

23

WLGR 03.25.19 at 2:31 pm

Murali @ 4 is quite right to place these approaches to environmental conservation in the context of Trumpism, but the connection is far more unsettling than they seem to realize, and Quiggin’s response @ 14 could hardly be more wrongheaded: from the beginning of both movements, certain strands of conservationism have shared an uncomfortably strong resonance with certain strands of white supremacist eugenics. Adam Serwer’s recent piece on Madison Grant in The Atlantic is a good introduction to Grant’s importance in the history of blue-blooded establishment white nationalism, but it unfortunately softpedals his already-underappreciated parallel importance in the history of blue-blooded establishment environmentalism, such as the fact that he was once widely celebrated as the father of the very concept of “national parks.” These two aspects of Grant’s worldview aren’t as easily disentanglable as many today might want them to be, nor are they necessarily disentanglable in the worldviews of Grant’s prominent ideological admirers like Teddy Roosevelt or Adolf Hitler — and lest that seem like a gratuitous Godwin, the early history of the Nazi slogan “blood and soil,” famously chanted by the marchers at Charlottesville, was as a signifier for a set of foundational and highly developed fascist doctrines about the ecological harmony between a eugenically cultivated master race and the sacred homeland over which it justly claims stewardship, doctrines that were embedded in some of the Nazis’ most horrifying unrealized plans for mass ethnic cleansing and Aryan resettlement in eastern Europe.

For anybody interested in staking out a thoroughly non-fascistic articulation of ecological politics, a good starting point might be Timothy Morton’s concept, <a href="https://youtu.be/lQbIqNd5D90&quot; engagingly articulated by Slavoj Žižek in Astra Taylor’s Examined Life, of “ecology without Nature,” in so many words rejecting any categorical distinction between a reified entity called “Nature” and the allegedly non-“Natural” entities that form human society. Jason Moore has a good critique of how this dualistic Nature/Society binary was foundational to colonialism, and ultimately racism and fascism, by distancing certain kinds of humans from “Society” and relegating them to the category “Nature” as resources to be managed, herds to be culled, or infestations to be exterminated, the way we might think of populations of elephants or deer or cockroaches.

By contrast, trying to solve the problems of anthropogenic ecological catastrophe by formalizing our already problematic concept of “Nature” even more deeply within our similarly problematic concept of individualized legal private property rights strikes me as exactly the wrong approach, almost a perfect simultaneous nadir of every single racist, fascist, and capitalist tendency described in any of the above.

24

Chetan Murthy 03.25.19 at 3:07 pm

Matt @ 16: I didn’t notice the other howler in your comment. The problem with “corporate personality” isn’t merely that they can sign contracts, sue etc. It is the *limited liability* of the owners (and usually directors too) that is problematic here, as John made so clear. This aspect is what allows a mining concern to extract immense profits for decades and then skive off leaving a massive toxic waste site to be cleaned-up by the taxpayer.

25

mpowell 03.25.19 at 3:38 pm

I’m going to side with Matt@1 on this one. I don’t see a theory of politics or power developed here to make sense out of this argument. It just seems like wishful thinking, ie existing environmental protections laws are too weak – what if we could posit the existence of property right for nature out of nowhere? I don’t have an idea of how you would expect this to play out in other jurisdictions, but is the idea to get 5 SCOTUS votes on the idea that this already exists in the constitution? Are you going to pass an amendment to make it so? Those are both bigger lifts than simple legislative action to simply make the penalties for environmental damage much more closely fitting to their actual costs. And you can structure the penalty system in a much more binding way through the legislative process without inventing property rights for nature, which just raises a whole set of new weird questions and not for any apparently good reason – is this expected to make your legislative program more appealing to the median congressional vote you need to capture? If you think you can use this idea to capture the imagination of a broad-based movement to shift opinion please say so.

26

Doug K 03.25.19 at 4:55 pm

Here in the US we have decided that corporations are people, and money is speech. This gives corporations many and sounding trumpets, Nature gets to be silent and suffer what she must. I’m all in favor of giving Nature some rights.

As Thoreau already asked, who hears the fishes when they cry ?

“Shad are still taken in the basin of Concord River at Lowell, where they are said to be a month earlier than the Merrimack shad, on account of the warmth of the water. Still patiently, almost pathetically, with instinct not to be discouraged, not to be reasoned with, revisiting their old haunts, as if their stern fates would relent, and still met by the Corporation with its dam. Poor shad! where is thy redress? When Nature gave thee instinct, gave she thee the heart to bear thy fate? Still wandering the sea in thy scaly armor to inquire humbly at the mouths of rivers if man has perchance left them free for thee to enter. By countless shoals loitering uncertain meanwhile, merely stemming the tide there, in danger from sea foes in spite of thy bright armor, awaiting new instructions, until the sands, until the water itself, tell thee if it be so or not. Thus by whole migrating nations, full of instinct, which is thy faith, in this backward spring, turned adrift, and perchance knowest not where men do not dwell, where there are not factories, in these days. Armed with no sword, no electric shock, but mere Shad, armed only with innocence and a just cause, with tender dumb mouth only forward, and scales easy to be detached. I for one am with thee, and who knows what may avail a crow-bar against that Billerica dam?–Not despairing when whole myriads have gone to feed those sea monsters during thy suspense, but still brave, indifferent, on easy fin there, like shad reserved for higher destinies. Willing to be decimated for man’s behoof after the spawning season. Away with the superficial and selfish phil-anthropy of men,–who knows what admirable virtue of fishes may be below low-water-mark, bearing up against a hard destiny, not admired by that fellow-creature who alone can appreciate it! Who hears the fishes when they cry? It will not be forgotten by some memory that we were contemporaries. “

27

Orange Watch 03.25.19 at 5:24 pm

Matt@16:

Corporations cannot speak. People working for corporations can speak, but corporations cannot. Very specifically, the comment that I was responding to leveled a (very common) pro-corporate-personhood argument: not granting free speech rights would cause “companies like newspapers, TV stations, book publishers, etc.” to be censored. This claim very obviously runs counter to press freedom. However, per the reasoning you put forth (“press entities don’t have different speech rights”), and acknowledging that freedom of the press includes self-publications by non-press entities, any information promulgated by representatives of a corporation would either be a corporate publication in some media, or a natural person’s speech. The natural person may be expressing an opinion collectively arrived at by an association of persons, but it is still a natural person’s expression. It is far from clear to me what corporate speech could otherwise consist of, nor why denying supernumerary rights to the owners of corporations would prevent free expression in any meaningful way so long as free speech is afforded to natural persons.

Except, ofc, in the US spending money is considered speech. And that’s the crux of it, isn’t it?

28

Yan 03.25.19 at 6:11 pm

There are so many philosophical questions and potential issues here.

Political philosophers usually understand possessing a “right” as implying a general obligation on the part of others to acknowledge and to give some sort of status to my interests, while definitions of specific rights concern toward which interests we are obligated and in what particular ways.

The general precondition for having a right is, then, having interests toward which others can have obligations.

Now, you may reject that common understanding among political philosophers, but you’ll need to explain your alternative, for it is surely an unusual if we are to “give legal standing to representatives of Nature, similar to that given to the representatives of social constructions like corporations.”

Corporations (which, of course, should not have rights), can at least plausibly though to possibly have them because they consist of individuals who have interests toward which we can be obligated. But whose interests do “representatives of Nature” represent? Nature does not have interests. Animals and humans have interests, and the protection of nature connects to rights insofar as protecting nature protects the interests of animals who have interests.

As for the reasoning of the the very big “if” in “if property rights are social constructions.” I happen to agree with that extraordinarily controversial view (most ordinary people and still many philosophers think rights are functions of human nature). But it’s a view that does not make these questions easy but extraordinarily more difficult. If rights are social constructions, what rational grounds do we have for any particular way in which we construct them–why extend them at all or limit them at all? Corporations, animals, nature, how prevent the line from being arbitrary–and, historically, how explain that the exclusion of women, the propertyless, and people of color was unjustified?

29

Ogden Wernstrom 03.25.19 at 7:03 pm

Matt @1:

and that the effect is frequently harmful to Nature.
Well, sometimes, and all too often, but of course only a tiny percentage of the time over all.

What is this statement attempting to minimize? I’m pretty sure that effects that are harmful to Nature are going on close to 100% of the time over all.

I see that @16, Matt clarified that we shouldn’t hate corporations collectively, we should treat them as we would individuals. If I understand correctly, Matt’s earlier comment should have been about “a tiny percentage of instances” rather than time.

Matt’s response to Orange Watch appears to parse The First Amendment in a way that agrees with OW. Perhaps one of us misinterpreted OW.

***

Murali @4:

Perhaps channel that trumpist wall building urge in a direction where a wall would actually be useful.

Make Wilderness Great Again!

Or, would it be more of an anti-wildlife sentiment driving chants to lock up Nature?

***

Sebastian H @11:

The abortion debate is going to hate this argument.

Giving “the debate” agency to hate must be a metaphor, so this statement was difficult to parse. It must be about those places where a woman’s agency is suppressed (much like that of Nature, as outlined in the OP), and she can be forced to carry to term.

30

John Quiggin 03.25.19 at 11:20 pm

@WLGR I’ll add “You know who else were environmentalists, don’t you?” to my list.

Chetan @17 Thanks for having more patience than me.

To various others. There seems to be a highly unitary theory of the state underlying a lot of these comments. The argument seems to be “the state can already regulate this, so we don’t need to think about it”. The difficulty that some particular person has to be given standing to act is obvious relevant, but not the discussion-stopper a lot of people here seem to think – there are all sorts of state appointed or legitimated actors with particular responsibilities. As I said, in the OP, the issue is one of practicality rather than one that can be resolved from first principles.

31

Orange Watch 03.26.19 at 12:49 am

Ogden Wernstrom@29:

On re-reading Matt@16, I’m tempted to conclude that they believe that freedom of the press is strictly a freedom to disseminate something, with nothing said about whether or not the government can dictate the contents of what is put forth. That’s obviously wrong – freedom from censorship is intrinsic to freedom of the press, and in the US the courts have been fairly clear this is because of 1A press freedom rather than being a byproduct of 1A free speech – but it’s the most sense I can get from their @16 while still assuming they disagree with me, which they certainly seem to do.

32

faustusnotes 03.26.19 at 1:22 am

John, I don’t think WLGR is trolling. There is a definite connection between the environmentalist (and Western cultural) notion of “wilderness” and the early colonial efforts to drive indigenous people out of it. The colonial thinking involved in the formation of America’s natural parks led to the decline in their beauty and quality. I think the early national parks movement also supported driving indigenous Americans off their land.

In connection with this I think there are legitimate arguments to be made that the western approach to property rights is not the best way to approach environmental issues that require either some participatory custodianship (as in e.g. the Amazon or large stretches of the USA), or dealing with issues of common goods. Unfortunately critiques of western rights-based or property-based approaches to environmentalism are often ignored or dismissed because they draw on indigenous experience and indigenous approaches to land rights that are often sneered at as being religious hocus-pocus, or because modern western economists think that indigenous people were not “using” the land and didn’t have a concept of property.

In a thread where you want to discuss a rights-based approach to environmental issues it might be nice to engage with a post-colonial critique of western personal and property rights.

33

Matt 03.26.19 at 2:17 am

orange watch – it’s been several years now since I took my 1st Am class in law school, but I’ll admit that your description of the law in the US doesn’t sound at all right to me. Can you point to specific cases that you think support your reading rather than mine?

Over all, I think that thinking about “corporations” here is just a mistake, distracting us from important issues. Think about campaign donations counting as “speech”. That’s completely independent of issues about corporations. And, the argument in the post also seems to be independent of it. I think we’d do a lot better to focus more carefully on what exactly the issues are. I don’t see that done much here.

34

John Quiggin 03.26.19 at 5:54 am

@faustusnotes My Masters thesis, written in 1983, was on common property rights, and drew on examples like water-sharing systems in precolonial Sri Lanka. So, I’ve been paying attention to the issues for a fair while.

You make valid points, but I don’t think they excuse WLGR.

35

John Quiggin 03.26.19 at 5:54 am

“Property rights” are not specific to western societies. All societies have rules saying who can use what things for what purposes, and some mechanism to enforce those rules. That’s what property rights are.

Most of the time, these socially constructed rights are backed up by some spurious origin story. The specifically western story is that of Locke, which I’ve debunked at length.

36

Chetan Murthy 03.26.19 at 6:21 am

Matt @ 33:

Over all, I think that thinking about “corporations” here is just a mistake, distracting us from important issues. Think about campaign donations counting as “speech”. That’s completely independent of issues about corporations.

Size has a quality all its own. Only corps (and the very wealthiest individuals) can command the kind of money we’re talking about. Furthermore this idea that “campaign donations are speech” ….. I’m glad you brought it up, b/c now we know you’re a troll. Only a troll would make such a stupendously bad argument, at this point in our history, when precisely such donations managed to pervert the democracies of two leading Western nations.

So I can ignore you. Which is a relief.

Your comments appear to be pretty unrelated to what John has been proposing. Instead of discussing its merits, you’ve gone on a rant defending corporations and their right to do whatever-the-hell-they-want. It’s an ethos, I guess. Party on, dude.

One thing I find interesting [and mentioned by John quite carefully as part of his argument]: when the courts appoint guardians at litem, nobody thinks that it’s impossible for those guardians to fulfil their role. I mean, how could they *possibly* know what the child’s best interest it? It’s so *presumptuous*! So fraught! And yet, somehow, it all gets done, every day all over the world. The same happens for elderly people (though here it’s more contentious b/c assets to depredate). It’s almost like there’s a spectrum of situations, and maybe what John’s proposing would fit *into * that spectrum, certainly towards the more fraught end, but still, not a difference in kind from other cases.

37

greg 03.26.19 at 7:18 am

The reason fishermen often run out of fish, is because they fail to put the fish first. Fishermen put them selves first, either as a commonality, (socialism) or as individuals (capitalism)

The reason humanity is running out of nature, is because he puts himself first.

Just a matter of ordering priorities: If the fisherman puts the fish first, he will always have fish. If humanity puts nature first, he will always have nature.

38

greg 03.26.19 at 7:23 am

And that’s an “only if.”

39

Z 03.26.19 at 10:45 am

Philosophically speaking, I’m firmly on the side that the vocabulary of rights is too fraught with implicit conceptions to be helpful (see e.g its judicial as well as theological foundations) and that the analytic correct concept (which, if it needs to be couched in venerable philosophical terms, could be called isonomia) finds its strength and origin from the fundamental property of reciprocity. Consequently, I’m firmly in the camp that believes giving rights to abstract entities like Nature is analytically incoherent (though I doubt John Quiggin and I would disagree on any practical schemes). In particular, I believe the following remark is fundamentally misconceived.

Rather these property rights must be exercised by humans, bound by obligations to act in line with the interests of Nature, and these interests must also be defined by humans. There is nothing particularly unusual here. Our current system assigns property rights to infants, who are in exactly the same position.

If indeed there is nothing unusual here, it is precisely because this is (in my view) a misunderstanding of the correct analysis of the situation which lead to a society assigning property rights to infants. The correct analysis starts with the obvious remark that each human being begins as helpless, and thus that human association comes first, and manifestations of social agency (such as rights) later, within the context of the prevailing mode of human association. So insofar as infants have rights, this is simply a legal convention describing (very imperfectly) the fact that in our society, the public (usually acting through parents and immediate relative, but under the scrutiny of the public generally, and its direct involvement if necessary) have ascribed to themselves the responsibility of taking care of infants in a specified way. Property rights for infants are (very imperfect) guidelines and stipulations about how to go about exercising this collective responsibility the public has, according to its own collective agreement.

Similarly, there is (in my view) nothing to be gained (and a lot to be lost, analytically) in assigning rights to Nature (what’s that? by the way). That would be in effect mistaking the imperfect guidelines for the real task we have at hand: that is to say defining what is the collective responsibility the public has towards the ecosystem. Instead of declaring the problem solved by mimicking the (I know I repeat myself, but it is important) extremely unsatisfying guidelines we have found for other similar situations, our goal should be to solve the problem.

40

Orange Watch 03.26.19 at 11:53 am

Matt@33:

Ogdan Wernstrom is correct; it is at this point fairly clear that you’ve fundamentally misunderstood me. The point is not whether the courts have created a legal framework under which corporations must enjoy the same rights as natural persons in order to prevent those rights from being abridged, but rather that it is not true that they must within our Constitutional framework rather than the extra-Constitutional judicial scaffolding that the courts have erected on top of it. Your initial claim that I objected to was that suppression of the press is prevented only by granting press corporations the same free speech rights as is guaranteed to natural persons. This is not true, and again appears to be motivated reasoning attempting to force us to accept corporate “free speech” as necessary to preserve something separately guaranteed by the Press Clause. Since you want a citation, I am lead to believe the clearest example would be Lovell v. City of Griffin (1938).

Tellingly, when we see corporate free speech co-equal to natural free speech – which is to say utterances – and held as distinct from freedom of the press – which is to say publications in the various media – we invariably are talking about “expression” not in the form of disseminating information – which corporations cannot do except through publications or the speech of natural persons – but rather, spending money. First National Bank of Boston v. Bellotti established that right for corporations, and ofc it was expanding on Buckley’s vile doctrine of spending money as speech. Press freedoms for natural persons would protect corporations’ ability to disseminate information non-orally, and freedom of speech for natural persons would protect corporations’ ability to disseminate information orally; the only recognized form of “expression” that corporations cannot engage in by proxy (which is a telling formulation, as corporations are in principle meant to be proxies for people, not vice versa) is spending the corporation’s money – officers of a corporation can only spend the corporation’s money in their capacity as officers of the corporation.

So no, it is not a distraction to think about corporations and the rights being piled upon them. Corporations have been given particular rights in order to allow them to abuse distortions of the rights of natural persons, and taking for granted that they should possess these rights misses that they are creations of state law that should be considered persons only insofar as doing so allows natural persons to interact with the law. They have no interests of themselves, nor should they grant supernumerary rights to their owners, and that they do is a problem distinct from any particular abuse of legal concepts such as money = speech = money.

41

steven t johnson 03.26.19 at 12:39 pm

WLGR@23 does not need excusing. This is true especially if you think the old history is irrelevant to the modern issues.

WLGR’s concern with what the agents of Nature may decide their goal in protecting nature’s interests is, can’t really be dismissed. What are the best interests of Nature? Do we imagine Nature as the Goddess Gaia a la Lovelock?

42

P.M.Lawrence 03.26.19 at 1:17 pm

There is in my view, no reason in principle, not to give legal standing to representatives of Nature, similar to that given to the representatives of social constructions like corporations.

How about “two wrongs don’t make a right”? There is a considerable body of thought that disapproves of that right even for corporations, from the thinking behind the Statute of Mortmain in the Middle Ages to Mutualists and some kinds of Anarchists in recent times, with much in between, and an implicit criticism of that right among Distributists (even when they don’t think it through). My own view is close to that of Mutualists and Distributists, and ends up close to the Byzantine view that only recognised those corporations that were “moral persons”, roughly speaking those like monasteries that could hold together by themselves on the back of their own internal dynamics rather than those that could only do that because of the legal system’s dynamics.

Of course, this leaves the question of whether “Nature” should qualify up in the air, but it does provide a criterion, in some ways analogous to “cogito ergo sum”: can it live and move and have a being as a corporation, in and of itself? I strongly suspect not.

As always under limited liability, Bond’s own liabilities were confined to the value of his shareholding …

That might be misunderstood by lay readers. No, his own legal liabilities (as opposed to the deemed value of his shareholding) were confined to the face or notional value of his shareholding, which in some cases includes a further amount not fully called in after its issue. That is why Australia introduced the “no liability” form of company, largely in order to make highly speculative mining ventures more viable by protecting entrepreneurs from that in the event of failure while still allowing further capitalisation in the event of success.

There are quite a few other matters that come out in this post, to do with the nature and support of property rights and concepts and such, but since the post isn’t trying to go into all that sort of underpinning I probably shouldn’t explore it in any depth either. But I should state that I disagree, taking the view that any such social constructs as support property rights do not generate those themselves but rather give an incentive to buy into those constructs to people who have already internalised their own constructs, and maybe to firm up their own internalisations in response – even when they are born long afterwards. Certainly, as a child I knew perfectly well what “my little brother” meant: nobody else was allowed to hit him.

43

WLGR 03.26.19 at 1:27 pm

John, the only thing you’ll accomplish by flippantly dismissing the long and well-documented history of environmental racism is to ensure that any tangible proposal you try to articulate will end up going precisely nowhere. People on the antiracist, antifascist, anticapitalist, and anti-imperialist radical left (distinguishing this group from liberals and social democrats) are generally conscious of this odious legacy to one degree or another, which means that if you want any substantial leftist buy-in for any broad and sweeping ecologically-motivated policy changes you might propose, the burden is on you to assuage the 100% reasonable concern that such policies could be co-opted into tools of white, Western, First World imperial chauvinist oppression against the greater masses of humanity — granting the good-faith assumption that your thought process isn’t driven by such motives from the start, which as the history of environmental racism makes undeniably clear, many environmental conservationist policies and ideas absolutely have been.

Your basic idea of assigning formal property rights to an entity called “Nature” seems like an excellent case in point, a clearly well-intentioned proposal with obvious potential utility for environmental preservation, but which also raises a bunch of obvious red flags for anybody concerned about the possibility of uninterrogated environmental racism leading to green-brown convergence and eventual full fascist co-option. Earlier I jumped straight to the core legal/philosophical issue of how to define the concept of “Nature” or whether it should be discarded altogether, precisely because a number of prominent thinkers have recently been calling attention to this as a crucial prerequisite for grounding ecological politics on a firmly non-fascistic foundation. But at a more immediately practical level, as faustusnotes alludes to above and as one of the pieces I linked earlier outlines in detail, the established policy framework that seems like the most obvious precedent on which to build your more expansive proposal of assigning robust legal property rights to “Nature” (i.e. the national-park model of territorial preservation) is thoroughly intertwined with racism and ethnic cleansing, not just historically in places like the US, but also right up to the present day in places like sub-Saharan Africa.

Again, I’m not trying to troll you, I’m genuinely trying to call your attention to the importance of approaching ecological issues in the context of antifascism and anti-imperialism, early enough and all-encompassingly enough to ensure that your proposals are just as inseparable from your opposition to racism as the proposals of people like Madison Grant or Walther Darre are inseparable from their support for racism.

44

LFC 03.26.19 at 1:45 pm

@WLGR

It’s not the nature/society distinction, or
“binary,” that was “foundational” to colonialism; rather, it was a particular interpretation of that distinction. The conceptual distinction between nature and society is independent of, and not undermined by, the particular uses to which that distinction was put by colonialists. racists, etc.

45

Orange Watch 03.26.19 at 2:48 pm

Matt@33:

It occurs to me that you may be questioning a different aspect of the scope of freedom of the press than what Lovell addresses. In that case, the cites you probably want to look at are Near v. Minnesota and/or New York Times Co. v. US, wherein prior restraint is generally enjoined specifically against press freedom.

46

b9n10nt 03.26.19 at 3:06 pm

I think this is an intriguing idea. The most applicable model I am aware of is social work: in California (& most US, I’d imagine) the state appoints attorneys to represent children independently of both the parents and the Health and Human Services Agency that is charged with investigating parents for abuse, neglect, or failure to protect.

So I at least could readily imagine that a law that establishes ecosystem rights and mandates a legal representative for Nature, say, within each counties’ jurisdiction.

47

Mike Huben 03.26.19 at 9:54 pm

Is the British Canal & River Trust an example of what you are looking for?

48

Matt 03.27.19 at 12:15 am

Orange Watch – I agree we are probably at an impasse, but the principles in Near and NY Times are ones that apply not specifically to “the press”, but to publication, as has been made clear in later cases. That’s reasonable, as it fits with how “prior restraint” (and needing a license to publish) applied to individuals before there was anything like the modern press. Maybe it would be good to give “the press” free speech rights that are different from those of other individuals (natural or legal), but it’s not at all clear that that’s done in the US. (I’m skeptical of the claim that it would be a good idea, but it could be true.)

49

Chetan Murthy 03.27.19 at 2:54 am

John, in a way, your OP and the following one by Maria, are the same one. They ‘re both about the discounting of the interests of future humans, in favor of the short-term interests of current humans. Maria writes about this explicitly, but your proposals for “rights of Nature” could be recast that way. If you look far enough out, the preservation of a healthy natural environment doesn’t need some “rights-based” justification: it can merely be justified by the need for future humans to (for example) eat fish, or breathe clean air, or live in the Persian Gulf area and be able to walk outside without dying forthwith.

I’m not an economist/accountant, but gosh, it seems like (again to borrow from Maria) this whole “maybe we’re doing the accounting wrong” is a big part of what you’re looking for?

[Obviously that isn’t Maria’s entire argument: doing the accounting right doesn’t change that poor families count for less in the calculations of *every* party to these “no playgrounds for thee” abominations. Or, um, we can increase the weight put to future generations’ welfare, while blithely shitting down the necks of the poor of those future generations, it seems.]

50

John Quiggin 03.27.19 at 4:22 am

Chetan @49 This is helpful.

Yan @28 “If rights are social constructions, what rational grounds do we have for any particular way in which we construct them–why extend them at all or limit them at all?

On consequentialist grounds – that a world in which rights are constructed this way is better than one where they are constructed another way.

?Corporations, animals, nature, how prevent the line from being arbitrary–and, historically, how explain that the exclusion of women, the propertyless, and people of color was unjustified?”

You need an evaluation of the consequences which treats everybody equally. On that basis, assigning all the rights to wealthy white men produces bad consequences on average, whereas extending rights more broadly produces better consequences. The case for corporations is the (contestable) claim that they provide a socially efficient way of organizing capital, and the case for nature is the claim (contested in many comments above) that the existing combination of property rights and regulation does not do an adequate job of protecting the natural environment on which we all depend.

51

Chetan Murthy 03.27.19 at 7:57 am

John, just in case it’s not obvious to some readers, I thought I’d illustrate why Maria’s post and yours seem so related.

I love to eat fish, and love to eat sushi. I cannot remember the last time I ate sushi, and the only fish I’ve eaten in living memory is (the infrequent) canned smoked herring. More and more infrequent. This is by conscious choice: I love to eat fish, but feel enormously guilty knowing that if I tuck in, someday there’ll be none left. Forever. So I consciously apply a very, very low discount rate to future consumption of fish by our descendants, and this leads me to the position that it’s wrong to eat fish *today*. it requires no granting of rights to fish — merely the understanding that ecosystem services to our many-generations descendants are just as valuable as ecosystem services to living humans.

52

ccc 03.27.19 at 1:02 pm

@50 John Quiggin: “You need an evaluation of the consequences which treats everybody equally. On that basis, assigning all the rights to wealthy white men produces bad consequences on average, whereas extending rights more broadly produces better consequences.”

With “everybody” you seem to mean “very far from everybody”, specifically you in the post seem to only consider how damage to “natural assets” affect humans. That completely excludes the interests of all non-human sentient individuals, who are many more than the humans.

If that is your view then why don’t you explicitly state it?

Furthermore, have you at some point tried to argue in defense of that maximally speciesist view?

53

Ogdan Wernstrom 03.27.19 at 4:22 pm

Once insect suffrage triumphs, even the poorest person will yearn for the good old days of white-male-human dominance. Or am I jumping too far ahead?

54

Orange Watch 03.27.19 at 5:42 pm

Matt@48
Maybe it would be good to give “the press” free speech rights that are different from those of other individuals (natural or legal), but it’s not at all clear that that’s done in the US.

We probably are at an impasse, but… you seem to very explicitly discount the contents of Lovell here.

A city ordinance forbidding as a nuisance the distribution, by hand or otherwise, of literature of any kind without first obtaining written permission from the City Manager violates the Fourteenth Amendment; strikes at the very foundation of the freedom of the press by subjecting it to license and censorship. [emphasis added]

The struggle for the freedom of the press was primarily directed against the power of the licensor. It was against that power that John Milton directed his assault by his “Appeal for the Liberty of Unlicensed Printing.” And the liberty of the press became initially a right to publish “without a license what formerly could be published only with one.” While this freedom from previous restraint upon publication cannot be regarded as exhausting the guaranty of liberty, the prevention of that restraint was a leading purpose in the adoption of the constitutional provision.

The liberty of the press is not confined to newspapers and periodicals. It embraces pamphlets and leaflets. These indeed have been historic weapons in the defense of liberty, as the pamphlets of Thomas Paine and others in our own history abundantly attest. The press, in its historic connotation, comprehends every sort of publication which affords a vehicle of information and opinion.[…] “Liberty of circulating is as essential to that freedom as liberty of publishing; indeed, without the circulation, the publication would be of little value.”[emphasis added]

This was not a decision outlining special rights for the institutional press; it was upholding the right of persons to publish (and distribute) information through various media without censorship. Again, we return your problematic claim that press freedom is necessarily subordinate to (corporate) free speech, and thus corporate free speech is required to allow corporations to publish in the various media. It is not, and this does not require carving out extraordinary freedoms for the institutional press. This may not be helpful for arguing that corporations must be allowed to “express themselves” by disseminating money, but it does a more than acceptable job of protecting their ability to disseminate information.

[To drag this back within (distant) sight of the post’s topic, I would say the depths of the weeds we’ve descended into points to the dangers of creating elaborate legal fictions to exercise collective decision making, as unintended consequences inevitably multiply both naturally and with help from motivated opportunists.]

55

Yan 03.27.19 at 6:39 pm

John Quiggin @50:

“Yan @28 ‘If rights are social constructions, what rational grounds do we have for any particular way in which we construct them–why extend them at all or limit them at all?
‘On consequentialist grounds – that a world in which rights are constructed this way is better than one where they are constructed another way…. You need an evaluation of the consequences which treats everybody equally.'”

It’s worth noting that there is a serious, though admittedly not insurmountable, tension between a commitment to rights and to consequentialism, since rights are often valued precisely as trump cards against good consequences that are achieved at an individual or minority group’s expense.

One option is to subscribe to a rule-utilitarian view of rights, of course, but I think that’s a bit having one’s cake and having someone else’s cake too, since it amounts to saying rights are trumps that we can trump if we want to, where “we” is inevitably whoever has the power to do so.

Note too that traditionally consequentialism has not been a social constructionist theory of rights. It has been grounded naturalistically in the fact that some beings have interests, a capacity for and awareness of pleasure and pain and so a “natural right” to have those interests considered.

Which returns me to my first concern: why formulate this as rights of Nature, rather than protections of nature grounded in the rights and interests of sentient creatures?

One reason why not to do so: if the consequentialist goal is to promote the wellbeing of sentient creatures, “rights of nature” could trump that goal. An extreme case as illustration: humans are the greatest threat to the well being of the environment, why not bring them to extinction?

56

Faustusnotes 03.28.19 at 1:57 am

John, your answer seems tautological. Rights should be extended to everyone because it’s better for everyone – but why would a current rights holder consider adding a group to their definition of “everyone” when their current view already considers those groups not be part of “everyone”?

57

John Quiggin 03.28.19 at 6:32 am

“One option is to subscribe to a rule-utilitarian view of rights, of course,”

And that’s exactly what I do. I would be guilty of cake-ism if I then tried to claim something for these rights beyond the fact that they are useful. It follows that, if our judgements change or something more useful comes along “we” can indeed trump them.

As a trivial example, I used to have the right to smoke in public, now I have the right to stop others from doing so. It seems to me just about impossible to avoid using the language of “rights” here, and equally impossible to tell a coherent story by which one or other of these rights arrangements (or maybe both or neither) is “natural”.

Faustusnotes: It’s tautological if you accept the premise that “what’s better for everyone should prevail”, but as Yan and others point out, that’s inconsistent with the idea that rights exist independently, and should be enforced, regardless of what we, or anyone else, might prefer. As to whether current rights holders want to extend rights to others, that’s the basic problem of democratic and socialist politics – how to persuade or coerce those who have a lot to share it with those who have little.

58

J-D 03.28.19 at 9:35 am

Once insect suffrage triumphs, even the poorest person will yearn for the good old days of white-male-human dominance. Or am I jumping too far ahead?

Too far, or not far enough? Once nematodes get the vote you can forget about insects.

59

ccc 03.28.19 at 11:00 am

Yan @50: “Note too that traditionally consequentialism has not been a social constructionist theory of rights. It has been grounded naturalistically in the fact that some beings have interests, a capacity for and awareness of pleasure and pain and so a “natural right” to have those interests considered.”

This confuses meta-ethical matters (constructivist vs naturalist accounts about moral norms) with multi-level reasoning withing normative ethical consequentialism.

First, as a normative ethical theory consequentialism can in an indirect/derived/constructed/rule-of-thumb sense (pick your favorite term) accomodate legal rights, virtues, special relations, promises, instutitions and so on within its overall theory. But the role and status of such components differs from what they have in non-consequentialist theories. They’re all instruments to producing outcomes approved by the higher-level consequentialist principle.

For example if the act of adopting into law some construct of “rights of Nature” expectedly yields optimal outcomes (on some normative specification of good/bad outcomes), compared to all alternative actions then act-consequentialists approve.

Second, if some legal right protection is adopted as an instrument to advance the interests of some sentient beings then, at the level of philosophical analysis, adding the label “natural” is redundant.

Yan @50: “why formulate this as rights of Nature, rather than protections of nature grounded in the rights and interests of sentient creatures?”

The answer seems to be that John Quiggin without argument simply assumes that the interests of most sentient creatures are worthless. The legal “rights of Nature” he proposes seem to be only instruments for promoting human interests, in the end.

But we could reformulate your question to: why not instead talk of protections of nature grounded in the rights/interests of humans?

That might work. I suppose one reason for Quiggin’s proposal may be that for some natural processes/structures there is a lot of uncertainty on which humans are affected, in what waym how much and when. Yet we have good reason to think there will likely be in aggregate significant negative effects to human flourishing in some way or other.

E.g. think of externalities like health effects from water/air pollutions or noise/light pollution or the cultural importance a river may have in traditions/rituals of some minority group community. In such cases expected costs may be very difficult to individuate and act on.

The legal construct “this river has the legal rights X Y Z and persons/organizations A and B are to be the legal advocates of those rights” may then be a useful way to curb the problem upstream (ha!) compared to e.g. having each affected individual pursue their interests in court once the damage is done.

Yan @50: “One option is to subscribe to a rule-utilitarian view of rights”
John Quiggin @57: “And that’s exactly what I do.”

I don’t think you do :-) Unless you by that merely mean accepting legal rules etc for instrumental consequentialists reasons that act consequentialists also can approve of.

If you on the contrary really do mean strictly speaking rule-consequentialism as a distinct alternative to act-consequentialism then you may need to reformat your argument.

The leading rule consequentialist theorist today is Brad Hooker. This article by act-consequentialist Richard Arneson is useful on the rule/act theory difference and on some drawbacks with Hooker’s rule-consequentialism, http://philosophyfaculty.ucsd.edu/faculty/rarneson/BradHooker2.pdf

60

ccc 03.28.19 at 11:28 am

Ogdan Wernstrom @53: “Or am I jumping too far ahead?”

You’re not jumping at all, you’re stuck. You feel “absurdity!” and take that as an excuse to not consider arguments.

Peter Singer, Animal Liberation, the start of chapter 1:

“”Animal Liberation” may sound more like a parody of other liberation movements than a serious objective. The idea of “The Rights of Animals” actually was once used to parody the case for women’s rights. When Mary Wollstonecraft, a forerunner of today’s feminists, published her Vindication of the Rights of Woman in 1792, her views were widely regarded as absurd, and before long an anonymous publication appeared entitled A Vindication of the Rights of Brutes. The author of this satirical work (now known to have been Thomas Taylor, a distinguished Cambridge philosopher) tried to refute Mary Wollstonecraft’s arguments by showing that they could be carried one stage further. If the argument for equality was sound when applied to women, why should it not be applied to dogs, cats, and horses? The reasoning seemed to hold for these “brutes” too; yet to hold that brutes had rights was manifestly absurd. Therefore the reasoning by which this conclusion had been reached must be unsound, and if unsound when applied to brutes, it must also be unsound when applied to women, since the very same arguments had been used in each case.”

61

Mike Huben 03.28.19 at 12:29 pm

J-D @ 58: “Once nematodes get the vote you can forget about insects.”

Oh, Puh-Lease! Once bacteria get the vote you can forget about the lot.

62

John Quiggin 03.29.19 at 7:05 am

ccc I ducked the issue of whether to regard sentient animals as having interests of their own, independently of humans. Obviously, if these interests are to be protected, humans need to the protecting, and the creation of rights is one way to do that. The obvious interests relate to pain and suffering from food production.

I was thinking more about ecosystems and non-sentient Nature.

63

J-D 03.29.19 at 8:31 am

John Quiggin

I ducked the issue of whether to regard sentient animals as having interests of their own, independently of humans.

It’s fair to say that you ducked the issue if by that we mean that you did not explicitly raise it, but when ccc writes

With “everybody” you seem to mean “very far from everybody”, specifically you in the post seem to only consider how damage to “natural assets” affect humans. That completely excludes the interests of all non-human sentient individuals, who are many more than the humans.

and

The answer seems to be that John Quiggin without argument simply assumes that the interests of most sentient creatures are worthless. The legal “rights of Nature” he proposes seem to be only instruments for promoting human interests, in the end.

it’s sheer fabrication. When I originally read your post, it didn’t occur to me to think about the interests of non-human animals; but when ccc raised the issue, I reread your post and observed that although you did not explicitly discuss the interests of non-human animals, nothing in what you wrote entailed their exclusion from the scope of the interests to be considered. That ccc should insist that you excluded consideration of the interests of non-human animals as worthless, when you did no such thing (either explicitly or implicitly), is unsurprising but tiresome.

64

ccc 03.29.19 at 11:29 am

J-D @63: From “nematodes tho” shitposting to “sheer fabrication!” white knighting – groovy!

“nothing in what [Quiggin] wrote entailed their exclusion from the scope of the interests to be considered”

Yes. Luckily, I didn’t claim entailment. My “seems” is inductive. Inductive support:
– The post only gives examples that involve costs to humans.
– I have read many previous texts by John Quiggin but not on examination seen inclusion of non-human interests, despite frequent use of inclusive-sounding phrases like “everyone”.
– When a person repeatedly “ducks” the interests of billions of sentient beings for years (decades?) while writing about political/economic areas where policies very clearly greatly impacts on those interests then that is some evidence for thinking that the person does not really think those interests matter.

John Quiggin @62: If you un-duck at some point in time then one tip regarding this particular topic is John Haldane’s 2015 book “Animal Property Rights: A Theory of Habitat Rights for Wild Animals” and the ongoing related discussion in journal reviews/articles.

65

steven t johnson 03.29.19 at 12:07 pm

There are no mufflers on lawn mowers. This is so you can’t hear the screams of the grass.

66

Ogden Wernstrom 03.29.19 at 4:39 pm

ccc appears to be drawing a line somewhere – without revealing where that line might be for them. If considering the suffering of insects is absurd, is that because we do not yet consider their pain to be valid? If I had the energy, I could go all Godwin Kuhnian on the topic of which beings some humans have considered to be validly sentient (or otherwise worthy of consideration), and where various lines-of-absurdity have been drawn.

@59, which appears to be a different tack for ccc, leads me to conclude that Insect Lives Matter, since we humans* rely upon insects in so many ways – no matter how the insects feel about that issue.

My powers of deconstructivist hermeneutics are exhausted, and our lawn grows long.

*I hope I am not assuming too much.

67

DAT 03.29.19 at 5:11 pm

Discussion elsewhere. “The Rights of Wild Rice” by Winona LaDuke, Feb, 21, 2019, in In These Times.

68

Yan 03.29.19 at 7:32 pm

@60
“You’re not jumping at all, you’re stuck. You feel “absurdity!” and take that as an excuse to not consider arguments.Peter Singer, Animal Liberation, the start of chapter 1:”

This is a false analogy that completely distorts the heart of Singer’s argument: that rights should be extended to all interest bearing living things

The problem here is that no argument has been given for why rights should be directly extended to non-interest bearing living things as such, rather than merely rhetorically (but in reality based in the rights of interesting bearing beings the protection of nature serves).

69

J-D 03.29.19 at 11:24 pm

ccc

Yes. Luckily, I didn’t claim entailment. My “seems” is inductive. Inductive support:
– The post only gives examples that involve costs to humans.

All the examples John Quiggin gives in the post are examples of environmental damage caused when mining companies abandon mine sites without cleaning them up. Yes, this damage harms humans, but does it only harm humans, or does it harm non-human animals as much as, or possibly even more? The problem of environmental damage caused by mining companies abandoning mine sites without cleaning them up is a potential concern for people who care only about the interests of humans and not at all about non-human animals; but it is just as much a potential concern for people who also care deeply about the interests of non-human animals. The post is equally compatible with both stances; it’s just you that has to insist that it’s written from one and not the other.

I have read many previous texts by John Quiggin but not on examination seen inclusion of non-human interests, despite frequent use of inclusive-sounding phrases like “everyone”.

What do you think Charlotte Brontë meant by ‘every one’ when she wrote, in Jane Eyre, ‘It was well I secured this forage, or both she, I, and Sophie, to whom I conveyed a share of our repast, would have run a chance of getting no dinner at all: every one downstairs was too much engaged to think of us.’? What do you think James Joyce meant by ‘everyone’ when he wrote, in Dubliners, ‘Everyone’s heart palpitated as Leo Dillon handed up the paper and everyone assumed an innocent face.’? What do you think Oscar Widle meant by ‘everybody’ when he wrote in ‘The Decay Of Lying’, ‘I only hope we shall be able to keep this great historic bulwark of our happiness for many years to come; but I am afraid that we are beginning to be overeducated; at least everybody who is incapable of learning has taken to teaching— that is really what our enthusiasm for education has come to.’? You may not be familiar with the technical term ‘domain of quantification’, but your English is too good for you not to have a clear understanding of what ‘everyone’ means.

Ogden Wernstrom

If you are concerned about what’s happening to insects (and regardless of whether that’s for the sake of insects themselves or because you’re concerned about effects for humans), then you should consider getting rid of your lawn, or so I’ve been told:
https://www.youtube.com/watch?v=azRGZavmNnE
(Easy for me to say, I admit: I don’t have a lawn and don’t want one.)

70

ccc 03.30.19 at 1:13 pm

J-D @69: “Yes, this damage harms humans, but does it only harm humans, or does it harm non-human animals as much as, or possibly even more?”

It of course harms non-humans too. But my point is that there is no mention of any penalty or rectificatory mechanism designed to account for harms to non-humans non-instrumentally. The examples seem to me to concern only penalties based on indirect and direct costs to humans natural resource owners (and future users). Not exclicitly stated, but I take it that is the standard approach in this type of cost-benefit analysis so it would be expected to explicitly point out if an example deviates from that.

Admittedly I haven’t tracked down the example references so I’m open to correcting information. Perhaps John Quiggin can clarify this: does any of the referenced example cases involve penalties/cleanup costs where the cost calculation includes harms to non-humans sentient beings as separate, non-instrumental items of accounting i.e. not in the end counted only as instrumental to losses for human owners or users of the natural resource?

J-D @69: “What do you think Charlotte Brontë meant … James Joyce … Oscar Wilde”

They meant humans, some subset thereof. But your argument here fails for the same reasons as last time you tried it. You misdiagnose the complaint as linguistic when it is moral. When Quiggin writes approvingly about a consequentialism that considers the interests of “everyone” it sounds like a view with plausible properties like impartiality and universalizability (which it does have *if* the term is used in the widest sense that include all sentient individuals) – in contrast to views that prejudicially caters only to the interests of white men or some powerful interest group. But then a slide occurs. In application billions of sentient non-human individuals are excluded in Quiggin’s practical reasoning time and time again, even in cases where their interests are affected. That is, in application the sense of “everyone” is silently drastically reduced. That slide is a handy way to keep on ducking an argumentative burden. Until others call it out.

Of course calling it out can meet pushback. For example one-liner, gut-reactionary ridicule of the “nematode suffrage LOL” kind.

71

ccc 03.30.19 at 1:54 pm

Yan @68: “The problem here is that no argument has been given for why rights should be directly extended to non-interest bearing living things as such, rather than merely rhetorically (but in reality based in the rights of interesting bearing beings the protection of nature serves).”

If we understand rights as social constructs within a consequentialist theory then all rights, including human rights, are in reality instruments fundamentally based on something else, namely they’re tools designed to protect and promote the interests of individuals. They’re useful legal constructs that bundle up certain concerns into an easy to grasp language and make certain ways of acting to promote and protect interests actionable and predictable and similarly deal with interest conflict cases in a structured and predictable way. Society runs better on rights, appropriately designed, so consequentialists approve. The pragmatic question to ask is then if such bundling into “this river has rights X Y Z” serves those ends better than some other form of legislation. I took Quiggin’s OP to given arguments: doing so could help fix the problem of polluters/damagers who currently can evade penalties. Another argument that I sketched is that such rights could be a means to curb damages from occuring in the first place rather than try to individuate and act on claims once damage is done.

So far considering only human interests. Haldane’s book that I mentioned above is interesting in that it investigates a system of property rights over habitats in the service of the wild non-human animal inhabitants.

Yan @68: “This is a false analogy that completely distorts the heart of Singer’s argument: that rights should be extended to all interest bearing living things”

I think we’re talking past each other here. I only quoted Singer in reply to Ogden Wernstrom’s gut-reaction ridicule of me bringing up the interests of non-humans. He has reacted like that before. I quoted that passage from Singer because Ogden Wernstrom seem stuck in the same flawed moral heuristic (“Feels absurd to me, ergo must be false, case closed.”) that Wollstonecraft’s detractors were stuck in.

72

J-D 03.31.19 at 12:44 am

ccc

The examples seem to me to concern only penalties based on indirect and direct costs to humans natural resource owners (and future users). Not exclicitly stated, but I take it that is the standard approach in this type of cost-benefit analysis so it would be expected to explicitly point out if an example deviates from that.

In the words that John Quiggin actually wrote, there is no reference to cost-benefit analysis. The text does refer to the cost of cleaning up a mine site. The cost of cleaning up any kind of mess is related to the work that has to be done to clean it up, but independent of how much harm the mess has caused and/or how much additional harm will be caused if the mess is not cleaned up. I don’t know whether you have ever hired anybody to clean a home, or been hired by anybody to clean a home, but it’s a prosaic enough phenomenon that I think most people can imagine the sort of process by which the cleaner calculates how much to charge, and it’s got nothing to do with putting a monetary value on how much harm has been, is being, or will be done by the uncleaned state of the home, and therefore involves no assumptions about who (human or non-human) has been, is being, or will be harmed.

Linc was fined $4.5 million and the cleanup costs estimated at $72 million (Smee 2018).

I haven’t looked up the reference either, so I have no direct information about how that estimate was prepared, but surely the general nature of the procedure isn’t hard to figure out? Experts look at the site and form a view about the nature and scope of the reclamation works–how many workers for how many days, what machines and what consumable supplies–how else could that sort of estimate be prepared? If that’s how it’s done, no monetary figure for harms done is involved, and therefore harm done to non-human animals is neither included nor excluded, because that’s not the sort of calculation required.

In application billions of sentient non-human individuals are excluded in Quiggin’s practical reasoning time and time again, even in cases where their interests are affected.

In the post here, which is what I am discussing, no such exclusion takes place. Even if John Quiggin has done something of the kind you describe in other contexts (which I do not know to be the case, although obviously it’s a possibility), that doesn’t make it relevant to object here that he’s doing it again, when here he’s not doing it.

73

KT2 03.31.19 at 7:52 am

Worthy of a hat in this ring?

Laws and obligations defined here for crimes and damage so at least a good discussion point: “about the world-changing work of Polly Higgins.””…

“Until 1996, drafts of the Rome statute, which lists international crimes against humanity, included the crime of ecocide. But it was dropped at a late stage at the behest of three states: the UK, France and the Netherlands. Ecocide looked like a lost cause until Higgins took it up 10 years ago.

“She [ Polly Higgins ] gave up her job and sold her house to finance this campaign on behalf of all of us. She has drafted model laws to show what the crime of ecocide would look like, published two books on the subject and, often against furious opposition, presented her proposals at international meetings.”
https://www.theguardian.com/commentisfree/2019/mar/28/destruction-earth-crime-polly-higgins-ecocide-george-monbiot

“”(iv)     Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated; ”
http://legal.un.org/icc/statute/99_corr/cstatute.htm

Polly Higgins deserves support and donations;
“Ecocide Crime
“Ecocide is the extensive loss or damage or destruction of ecosystem(s) of a given territory, whether by human agency or by other causes, to such an extent that peaceful enjoyment by the inhabitants of that territory has been or will be severely diminished.”
https://eradicatingecocide.com/the-law/the-model-law/

Ted talk by Polly in guardian link.

Comments on this entry are closed.