Do Trees Have Rights?
“Environmental law is failing. And it will continue to fail because it comes from the same paradigm that created the problem.” — Mumta Ito
A World Full of Persons?
Animism posits a world full of persons: human persons, yes, but also hedgehog persons, salmon persons, rock persons, mushroom persons…and yes, tree persons. When I first heard this, it caused me to wonder what exactly a “person” is.
I’m a lawyer, so personhood for me is primarily a legal distinction. In the legal and political context, a person is a being that has rights. What would it mean, then, for a salmon, not to mention a rock, to have rights?
Personhood, in this legal context, is not an ontological distinction, but a cultural one. For that reason, it is more or less arbitrary. That’s why human beings could recognize personhood, and hence rights, of fictional entities like corporations and limited liability companies, trusts and estates, sovereign political entities and even ships, while at the same time denying rights to women, people of color, and LGBT folk.
Now, you might think that, if we can give rights to corporations and states, which are legal fictions, then we should be able to give rights to living beings like trees and natural beings like rocks, which at least exist in the physical world and, in the case of trees, share DNA with humans. But it turns out that extending rights to other-than-human beings is much harder for most people to imagine than giving rights to a corporation. The reason is that we’ve all been indoctrinated in a particular theory of rights: classical liberalism.
A State of “Nature”
The classical liberal understanding of rights is based in social contract theory, which is grounded in the classical liberal political philosophy of John Locke. When classical liberal thinkers refer to “natural rights”, they are referring, not to nature, but to what philosophers called the “state of nature”, the imagined state of human beings prior to the advent of society. This concept of rights is based on certain assumptions about the nature of human beings and society. In this view, the basic unit of existence is the individual. Individuals exist prior to their relationships. It is a kind of social atomism. According to Locke, society arises when individuals form a social contract wherein they recognize the rights of one another.
In the classical liberal view of society, other human beings are perceived primarily as obstacles to the individual’s freedom. Individuals enter into the social contract out of necessity, in order to escape the “state of nature”, the war of all against all. Through the social contract, an individual agrees to recognize the rights of others in exchange for a corresponding agreement that others will recognize their rights. This recognition of the rights of others is given begrudgingly, as it were. This is, at its core, an adversarial, rather than a cooperative, view of society. The purpose of government, in classical liberal view, then, is to enforce this social contract. It serves primarily a negative function–preventing individuals from infringing on the rights of others.
In the classical liberal view of rights, rocks and trees cannot have rights because rocks and trees cannot recognize the rights of others. Corporations and states are made up of human beings, so they can recognize other humans’ rights. The same is not true of other-than-human beings. If we decided to grant rights to trees, the trees would not be able to reciprocate the gesture.
The classical liberal view of rights has become the political air that we breathe today. It’s pervasive–from the public school curriculum to NPR. And though we take it for granted, the classical liberal paradigm has very real consequences, both for the other-than-human beings who inhabit our shared world, as well as for many human beings who have been categorized as less than fully human at one time or another.
Blue Rights, Negative Rights
In the 1970s, the Czech jurist, Karel Vasak, described three “generations” of rights–later called “blue,” “red,” and “green” rights. Blue rights are “negative” rights, the right to pursue one’s own self-interest without interference from other people or from government–essentially, your right to be left alone. These include political rights like freedom of speech and the freedom to contract and to acquire (more) property.
Red rights refer to “positive” rights. Rather than the freedom from interference, they represent a person’s entitlement to something, Red rights create the obligations of others to you and you to them. These include economic and social rights, like the right to employment, housing, health care, and social security.
The classical liberal view lends itself to the recognition of negative rights, but not positive rights. Prior to the New Deal, most Americans understood rights primarily in negative terms. The role of government was to keep people from interfering with other people’s person or property. Social Darwinism was the prevailing social theory and laissez-faire capitalism, which touted competition over cooperation, was the prevailing economic theory. Little wonder, then, that an adversarial theory of rights would dominate public discourse.
The United States’ Bill of Rights is an example of negative rights. Though many Americans today speak of the First Amendment as securing their “freedom of speech”, i.e., the freedom to speak, the First Amendment actually freedom from government abridging speech. This is a negative right, not a positive one. It is freedom from government interference which the First Amendment protects, and it is only the freedom to speak in the space created by the absence of government interference.
Red Right, Positive Rights
Red (positive) rights came to be more recognized through the efforts of FDR. In his 1941 State of the Union address, Roosevelt proposed that people everywhere should enjoy the freedom of speech and worship (blue rights), to which he added freedom from want and fear (red rights). Two years later, in his 1941 State of the Union address, he stated that the political rights identified in the Bill of Rights were “inadequate to assure us equality in the pursuit of happiness,” because “true individual freedom cannot exist without economic security”. Roosevelt identified several positive rights, among them the right to job, the right to a decent home, the right to adequate medical care, and the right to a good education.
These positive rights which would be incomprehensible for someone operating wholly within the context of a classical liberal paradigm. The reason is this–From the perspective of classical liberalism, you cannot recognize a positive right of one person without creating a corresponding obligation or duty on another person to fulfill that right, and when you create such an obligation, you violate the second person’s negative rights. Where there is a conflict between positive and negative rights, classical liberalism demands that the negative right trump the positive right. Classical liberalism favors negative rights because it takes for granted that free human beings exist prior to forming social relationships.
Rights of Individuals-in-Community
But that is not the only way to see the world. Rather than trying to defend positive rights in the individualistic terms of the classical liberal paradigm, we can start with a more communitarian or holistic paradigm. Rather than seeing the individuals as existing prior to society, a holistic view sees society as constitutive of individuals.
We are born into community, and we work out our individual identity through our relationships with other human beings and with the more-than-human world. There’s no such thing as “state of nature”, in which human beings lived before forming social relationships. We born into relation and there is no way to opt-out. In short, individuals do not exist apart from their relationships.
Therefore, there is no such thing as “natural rights”. Rights are social constructions, and they only can be created in society. And they always create corresponding obligations on other people. Rather than separating people, as the classical liberal imagines, rights bind people together, into communities. In this view, a person who has liberty, but no community, can hardly be called a person.
To put it another way, a person only really has freedom if the material and social conditions are present for them to exercise that freedom. We cannot can really pursue happiness without food, education, work, health care, etc. What use is it to tell a person they are free to fish if they don’t have a fishing pole or the knowledge of how to use it? As Adlai Stevenson succinctly put it, “A hungry man is not a free man.”
The goal of rights, in this perspective, is not primarily to protect the atomistic individual from other people, but to enable individuals to realize their potential together, through community. This does not mean that positive (red) rights will always trump negative (blue) rights. But if all other things are equal, then positive rights will be given greater weight, because negative rights are a function of positive rights.
This is also not to say that community takes precedence over individuals. Red rights are still individual rights, not communal rights; but they are rights of individuals-in-community. In this holistic view, rights arise, not from the nature of the solitary individual, but from the nature of the individual in society. The ability of people to exercise their liberties depends on other people.
Blue rights and red rights only apply to human beings, but Karel Vasak described three kinds of rights. The third kind of rights is “green rights.” Vasek’s divisions corresponded roughly to the three words of the French motto: “liberty, equality, and fraternity.” Green rights extend both blue and red rights to other-than-human beings and ecosystems, recognizing our “fraternity”–or “kinship” to use a non-patriarchal term–with the other-than-human inhabitants of our world.
The justification for extending rights to other-than-human beings is consistent with the logic of red rights, but simply recognizes that the community of which we are a part includes the more-than-human world–in fact, there’s many more of them than there are of us: hedgehog persons, salmon persons, rock persons, mushroom persons, tree persons and so on. To borrow from Aldo Leopold’s description of the “land ethic”, green rights “simply enlarge the boundaries of the community to include soils, waters, plants, and animals, or collectively: the land.”
Mumta It, founder of the NGO, Nature’s Rights, observes that the classical liberal political paradigm is based on a 17th century scientific paradigm–not surprising since Locke lived in the 17th century–which she describes as:
mechanistic (i.e., viewing the world as made up of separate, unconnected objects interacting in a predicable way);
anthropocentric (i.e., viewing the world as existing solely for the use of human beings – this is where ideas about ‘natural resources’ and ‘natural capital’ derive, basing nature’s value on its utility to humanity rather than on its intrinsic value); and
adversarial (competitive/retributive model, where one party wins at the expense of another)
In contrast, the holistic perspective is an ecological view of rights. Unlike more reductive forms of biology, ecology seeks to understand organisms in context of their relationships. The environment is not a backdrop to individual action, but a web of relations that constitute the individual. Therefore, an ecological view of rights is one which is holistic, biocentric, and cooperative, rather than mechanistic, anthropocentric, and adversarial.
In the classical liberal view, based on social contract theory, people only have a motivation to recognize the rights of others who are like them (or those who have greater power than them). In the holistic view, based on ecology, people would recognize the rights of those with whom they are in relationship. And since we are ultimately in relationship with everyone, people would recognize the rights of every person and every thing–in fact, every thing would be recognized as a person, which is the foundation of an animistic worldview.
Blue rights, red rights, and green rights are not equivalent and competing kinds of rights. Nor are they exactly hierarchical. Red (positive) rights, in a sense, encompass blue (negative) rights, because the latter are only possible in the context of the former, just as the individual only exists in the context of society.
Similarly, blue and red rights are encompassed within green rights, because both individuals and human communities only exist within the context the natural world–the former could not exist without the latter. To look at it another way, individual human beings cannot harm their human community without harming themselves, and likewise, a human community cannot harm the more-than-human community without also harming itself.
We can think of blue, red, and green rights as nestled within each other, as depicted in the image on the right in diagram below.
Rather than attempting to balance the interests of individual humans, human society, and the environment, as if they were equal and competing (see the diagram on the left above), the holistic model of rights acknowledges that blue rights are derivative of red rights and that both blue and red rights are derivative of green rights. This does not mean that green rights will trump blue rights in every instance, but it would mean that, all other things being equal (a caveat which conceals a great deal of nuance) green rights would be given greater weight than red or blue rights.
Speaking of the “Rights of Nature”
The holistic view of rights, in contrast to classical liberalism, provides a basis for recognizing the rights of nature. To say that other-than-human beings should have rights, though, is not to say that no one should be allowed to cut down a tree. Human beings have rights, but they can be incarcerated and even executed under the law. So rights can recognized, and yet withdrawn under some circumstances.
Nor does it say what kind of rights would be extended to the more-than-human world. Not every right holder holds all rights. Corporations have the right to contract, but they cannot plead the Fifth. Children have certain rights, but not the right to vote.
Nor does this say anything about the weight to be given those rights in any given case. U.S. law recognizes that humans have a right to life and also a right to a driver’s license (at least adults). But we can be legally deprived of the latter much easier than the former.
Answering these questions is beyond the scope of this essay. But just recognizing such a thing as the “rights of nature” would be profound. In The Wizard and the Prophet, Charles Mann writes about how, in 1948, with the publication of Road to Survival, William Vogt introduced the world to the idea of “the environment”, not just as a particular place, but as a global totality: “Defining a word on a new sense seems academic and abstract,” writes Mann, “but its consequences are not. Until something has a name, it can’t be discussed or acted upon it. … Without ‘the environment,’ there would be no environmental movement.”
The same, it could be hoped, would be true of the “rights of nature”. As Christopher Stone observed, in his seminal 1972 law review article, “Should Trees Have Standing?-Toward Legal Rights for Natural Objects”:
“Introducing the notion of something having a ‘right’ (simply speaking that way), brings into the legal system a flexibility and open-endedness … [T]he vocabulary and expressions that are available to us influence and even steer our thought. …[J]udges who could unabashedley refer to the ‘legal rights of the environment’ would be encouraged to develop a viable body of law–in part simply through the availability and force of the expression. Besides, such a manner of speaking by courts would contribute to popular notions, and a society that spoke of the ‘legal rights of the environment’ would be inclined to legislate for environment-protecting rules …”
It is conceivable that general acceptance of the phrase, “the rights of nature”, could trigger a paradigm shift in Western consciousness, a shift from viewing nature instrumentally–as having value only for humans–to viewing nature as inherently valuable–as having value in its own right. And that could have profound consequences for human behavior and our impact on the more-than-human world.
 Negative rights are often described as protecting “freedom from” something, whereas positive rights are described as protecting “freedom to” do something. This can be misleading, though. In one sense, negative rights may be thought of as embodying a person’s “freedom from”, i.e., freedom from interference by others. In another sense, negative rights may be thought of as a “freedoms to”, i.e., freedom to speak, to exercise religion, and to acquire property–in the space left by the non-interference of other people and government. Similarly, positive rights can be thought of as freedoms to, i.e., freedom to work, obtain heath care, acquire an education, etc., but also as freedoms from, i.e., freedom from want, fear, ignorance, etc., which result from work, health care, education, and so on.
John Halstead was the principal facilitator of “A Pagan Community Statement on the Environment,” which represents the most successful effort to date to harmonize the diverse voices of the Pagan community in defense of the Earth. He is also one of the founding members of 350 Indiana, which works to organize resistance to the fossil fuel industry. John is a Shaper of the fledgling Earthseed community. He is also the editor of the anthology, Godless Paganism: Voices of Non-Theistic Pagans. John writes about Paganism, activism, and life at AllergicPagan.com, PrayWithYourFeet.org, Huffington Post, and at Gods & Radicals.