John Queely, commondreams.org, 8 October

Can nature have rights? A moose? A forest? A river?

For some readers, these questions will seem silly or the answer will be simple: “Of course not, and we already know who came up with such nonsense!” However, if I were to ask them to elaborate on this answer slightly and explain why, say, only humans can have rights, the conversation would likely either stop at a blunt “That’s just how it is” or lead to fundamental questions to which there are no easy answers. Starting with the question: what exactly is a right?

To narrow the topic slightly, I have chosen the forest as an example. So: can a forest have rights? The question is not exactly new, but it is certainly newer than another: can an animal have rights? In the 1980s, animal rights theory became one of the leading positions in animal welfare ethics. The same cannot be said for environmental ethics, which deals extensively with questions about the ethical status of nature or, for instance, forests, but rarely uses the concept of rights.

In animal welfare ethics, the question of who can have rights is very widely discussed. Those who believe that animals can have them argue that a being does not necessarily need reason, language, or the ability to distinguish right from wrong to have rights. A newborn baby can have rights, even though we do not expect them to act responsibly or to be capable of demanding that others respect their rights. We can demand that the baby's rights be respected on their behalf. This argument is not the end of the discussion, but the beginning; nevertheless, it is easy to see how it can be used to defend the rights of a forest. Even if a forest is not part of the network of mutual claims that exists in human society and demands nothing, we can make the demand on the forest's behalf.

However, defenders of environmental ethics, as I have said, for the most part avoid talking about the rights of forests. This is most likely because the understanding of rights is traditionally linked to the concept of the individual. An individual has a right to life and property; an individual is entitled not to be humiliated or tortured; they may have interests that others must not infringe upon. Yet even representatives of environmental ethics are reluctant to recognise a forest or a river as an individual, at least not in the same sense as humans, animals, or plants. Meanwhile, defenders of environmental ethics mostly feel that the concept of rights is not even necessary to express their ethical convictions. For example, there can be ethical principles, laws, or duties that are binding regardless of rights. Say, I have a right to my property, but an ethical duty requires me to share with others in a certain situation, even if they have no right to demand anything from me. And environmental ethics has tried to formulate ethical principles that require us to defend nature regardless of whether nature has rights.

So far, I have not explicitly stated what I am talking about – ethical or legal rights. They are not the same thing. Ethical principles, laws, or rights are binding on humans, but in a different way than legal ones. By saying that an animal has ethical rights, I acknowledge that I should act in a certain way, for example, that I must not kill the animal. The authority that compels me to follow an ethical principle is, at least ostensibly, myself. Ethical principles may coincide with external requirements, but in recognising something as an ethical principle, I acknowledge this “internal” authority of mine, regardless of who else is trying to influence me. Legal laws and rights, on the other hand, require an external authority to ensure that these laws and rights are observed. If legal rights are not enforced, they are empty.

Swedish politicians who want to amend the constitution are calling for legal rights for nature. Whether legal rights must be based on ethical rights is a complex question; however, I doubt that these initiatives are based on any well-developed ethical theory—rather, it is a goal: to protect the natural environment. According to environmental ethics, the question of who can have rights is not necessarily linked to the political question of who the Swedes want to grant legal rights to.

When nature advocates turned to philosophy in the mid-20th century, and philosophers turned to environmental ethics, they were driven by the conviction that there are fundamental problems in how humans treat nature and that the protection of the natural environment is only possible if human thinking also changes. The proposal to amend the Swedish constitution is probably based on the realisation that changes in thinking are too slow and that internal control is not enough—external, state-imposed sanctions are needed.

Why is it important to demand the rights of nature specifically, rather than, for example, a requirement enshrined in the constitution that nature must be respected? I can imagine two reasons. Firstly, rights are traditionally contrasted with the will of the majority or the benefit of others. It is the essence of individual rights that, for example, a Catholic is allowed to be Catholic even if everyone around them is Lutheran and considers the Catholic to be a lost sheep. Accordingly, if a forest has rights, it must not, for example, be destroyed, even if it is profitable for someone else. Secondly, calls to care for and respect nature have proven insufficiently effective. Even the fact that laws include various restrictions on the use of natural “resources” and requirements to look after, for example, animals, has not stopped the ecological crisis or violence against animals.

Both these aspects relate to a single topic which, in the reviews of the Swedish constitutional changes known to me, is not emphasised, but which I think is central to this discussion. Namely, the question of forest rights is a question of property. The idea that a forest can have rights strikes at the principle that a forest can be private property or property at all. Formally, they do not exclude each other, because, for example, even a slave can have rights: let's say, they may be sold, but must not be killed. However, one of the reasons why various types of restrictions on the use of nature are not effective enough is that, in the end, nature, the forest, and the animal are *only* property. In reality, the clash between nature conservation and the status of nature as *only* property happens continuously. By acknowledging that a forest has rights and that anyone can stand up for them, including in court, we undoubtedly reduce, and radically at that, the owner's rights to their property.

I will immediately remind you that no one has yet made any changes to the Swedish constitution, and the chance that these changes will be approved is very small. However, the call to grant rights to nature could be a harbinger of what awaits us. First, we must understand that the ecological crisis is real and it will not simply disappear. But the consequences may be much more significant than we imagine in our worst scenarios. It will not be the case that everything remains as it was, only that we will recycle more and eat less meat. The need to preserve the natural environment will place pressure on the entire structure of society because the preservation of the natural environment will become a matter of survival.
But this will generate a whole series of conflicts. In the European Union, everyone will try to lock themselves in their little house, hoping that the storm will not affect them. In Latvia, the “city” will fight against the “countryside” and the “people” against the “Brussels lackeys” and the “radical greens”. Unfortunately, judging by the experience of the world, problems are exacerbated by irresponsible politicians who will try not to reduce dissatisfaction and resolve conflicts, but to use them for short-term goals.
In my opinion, it is impossible to avoid these conflicts entirely. The main reason is that it is very difficult for people to give up something concrete and immediate to gain something in the future, let alone show solidarity with those who are not here nearby in space or time. Philosophers have proposed a strategy for resolving such conflicts: justice. Justice does not quite solve the problem of solidarity, because to realise justice, one generally needs a human desire to show solidarity. However, it forces us to realise that granting rights to nature is not enough to solve the ecological crisis, because the mechanical introduction of such a principle would mean that one part of society—the owners of natural resources—would have to sacrifice more than others, even though the benefit is shared.

Forest rights are not an absurd idea, and property rights over nature will increasingly be restricted, but it can be said with reasonable certainty: if we do not want to act out any of the scenarios for social catastrophes caused by the ecological crisis, we will be forced to seriously address not only the issues of the rights of nature but also the issues of social justice.
Article first published in the December 2019 issue of Rīgas Laiks magazine