Good news for all you tree-huggers out there: New Zealand has just extended the framework of law beyond any rational perspective, to include within the expression “person” the Whanganui River. Henceforward, the river will be accorded personhood status, with rights pertinent thereto. Based on an agreement between the Crown and the Iwi tribal entity, the River will be a “person” before the law.
As many of you know from past discussions, talking about what “personhood” means for purposes of law is not easy, and it is not intuitive. There are lots of ways to make mistakes. One way is to assume that granting personhood under law means treating the entity as a person for ALL purposes. It just ain’t so. Most laws that call non-human entities as “persons” do so in a framework that explicitly recognizes them as persons for certain purposes and explicitly denies them the same rights granted to human beings for other purposes. Just to take one area, under tax law the term “person” generally includes both human beings and corporations, and also a number of other things, like associations, trusts, and estates. The term “individual” is reserved for human persons. And under tax law, non-human “persons” have certain rights, whereas individual human persons have considerably more rights – for example, only human beings can sign a Power of Attorney form and be the authorized representative for a pension plan.
Some people, both conservatives and liberals I believe, have stated grave misgivings for allowing corporations and other entities to be called (and treated as) persons in law. Their intuition rightly leads them to be worried that an entity should be called by that term we hold in especial reserve for the highest of natural beings, those with rational natures. But many object not just to the term, but the notion of granting rights to non-human entities. I have argued for the opposite angle: within certain limits, it is absolutely inevitable that non-human entities be treated under law as objects directly subject to law, and if subject to law then we need to have an expression that includes them as such. This is not just really worthwhile, it is fundamentally necessary in any ordered society. Men by nature have a right to associate – and this is recognized in the First Amendment. Once a group associates by some sort of formal act (usually adopting a statement of purpose and an organizational form), it MUST have the capacity to do things that carry out the purpose of associating, as distinct from the individuals doing so on their own: agree to contracts, have bank accounts, hire employees, make public statements, etc. All of these things come under the law in various ways, and the law must be capable of discerning the difference between Bob hiring an employee for his own purposes and Bob the chairman hiring an employee for the association. The law has to be able to treat the association distinctly from the members thereof.
It’s OK to use the term “person” to categorize entities subject to the law if in doing so you carefully delineate how far you mean that these entities are to be granted rights before the law. If, on the other hand, we find it virtually impossible to stay within those careful boundaries, then it is more reasonable o use a different term, and I would be fine with that too. What I am not fine with is throwing out the First Amendment because of squeamishness over a semantic issue.
Getting back to the W River, apparently (at least according to numerous reports, though I have been unable to find the actual agreement) the River is being accorded a kind of “juridic” or legal personhood status, similar to that of corporations. "[I]n the same way a company is, which will give it rights and interests". At least, that’s the meme being disseminated. However, right off the bat, this meme is a bit of a deception in some sense. The River’s rights and privileges are under the protection of 2 appointed people, one a member of the Iwi, the other a Crown official. It is almost like the River is going to be a ward of the state, with 2 assigned protectors. The second problem is that generally juridic persons are accorded legal personhood status because that protects KNOWN and discernible interests of known human beings. The W River’s so-called “interests” are yet to be discovered, yet to be enunciated, the River will not be a participant in doing so, and there is simply no knowing what humans’ interests will be involved in those of the River. Thirdly, in cases of corporations and other non-human “persons”, the entity has obligations and can be punished in certain ways. I doubt that we are going to find the 2 protectors locating responsibilities for the River, and assigning liabilities under any theoretical wrongdoing. Are they going to fine it if it floods some spring? Take away its water as punishment? Lastly, the meme of corporate personhood is given the lie directly by the very basis under which the Iwi sued for the river’s protection: in their religious perspective, “I am the river, the river is me.” The Maori apparently have some pretty strong pantheistic tendencies, and they are busy asserting the river’s personhood to endorse that religious view. Not even slightly unrelated, other New Zealanders are perfectly willing to speak of preventing “ecocide” as the reason for this move. Well, nobody thinks of the demise of a corporation as “corporocide”, and rightly so.
So New Zealand takes it all much too far. There are reasons to object to this measure both on general principles of rights law as such and on the basis of defining entities before the law. Western societies have made mincemeat of what might have been (at some point in the past) valid concerns under the notion “rights”, but this goes beyond mere poor judgment into farce. The basic reason for wanting to assign rights to non-human entities is to further HUMAN rights, goods, interests, and flourishing. Associations are accorded rights in order to further human rights, not because associations have them naturally. The fact that they weren’t even able to state the specific interests that belong to the river at the outset suggests that they will intentionally expand the scope of such interests to magnify the claims of “the river” whenever they imagine something might be gained BY SOMEBODY, including (for starters) the Iwi, and the appointed 2 protectors (who will be busy expanding their new bureaucratic empire). Since the river will never object to that, they can assert whatever needs, desires, rights and privileges they want that any other person – natural or artificial – might want. And there is no way to distinguish between a “need” and a mere whim, because of course the river doesn’t have either really. Since a river doesn’t really have true interests, it will be up to humans to impose on the river their own views of what it “wants”. Talk about anthropomorphic projectionism!
In some tribal traditions , humans changed into birds, fish and other creatures. There are also many examples where people identified the human body with features of the landscape. All of these traditions show an intimate experience of nature. Anthropologists have described it as a mystical involvement with the natural world.
And of course the concept of a river being an entity legally enforceable is stuff and nonsense anyway. New Zealanders will wake up to find out that the entity they have so foolishly created isn’t really a river, it’s a whole watershed. Then they will find out that it is anything and everything IN the watershed that affects water movement – including people. Then they will discern that it includes all the factors that affect the rainfall in the watershed region, including things that are not physically in the watershed itself, such as actions and conditions in surrounding regions. But aside from all this, the whole concept makes a mish-mash of what we intend by law and who law is for. Here’s a telling quote :
If we accept that all things have agency, not just human beings, this legal recognition of the personhood of a river, developed from the indigenous knowledge tradition and by the Whanganui River Iwi, is incredibly important.
To give a river (or presumably a mountain, valley or island) this status of personhood is important because it repositions us, human beings, within the environment, rather than over it.
If humans are not over the environment, but merely bit parts thereof, the on what basis do we even make law that affects the environment? If we are not in charge, well, let the environment take charge, let it make the rules and enforce them. But it can’t, can it? It’s sheer insanity, driven by the kind of loony-bin evil that ties man’s immense, and immensely sinful, pride that he can make reality what he wants of it, with fruitcake liberals’ whimsy that man is nothing more than the animals, plants, rivers, mountains, etc. Next week we will see some fruitcakery eco freak suing because rocks and air have rights too! How dare you breathe in oxygen and combine it with carbon to make carbon dioxide! You’re harming the oxygen, which had no intention of becoming carbon dioxide!