ON THE RIGHTS OF NATURE: A POSTSCRIPT

Ernest Partridge

 

From the unpublished anthology, Environmental Ethics: Perspectives and Issues, an evolving collection first assembled for an environmental ethics course at UC Santa Barbara in 1980, and used until my retirement from teaching, in Spring, 1997.  For more section introductions and original papers from that anthology, see "For Environmental Educators" at this site.

 

"Mindful of the scholastic adage that whenever you meet a contradiction you must make a distinction, I immediately sought and found one. . . " William James1

 

Consider the following observations and proposals:
 

I am quite seriously proposing that we give legal rights to forests, oceans, rivers and other so-called "natural objects" in the environment -- indeed, to the natural environment as a whole."

Christopher Stone²
 

If and when . . . people succeed in formulating moral rules respecting non-human entities, it maybe contended that these entities have rights. From this standpoint the meaning of the rights of rocks is that we should be ethical, not merely economic, in our treatment of rocks.

Roderick Nash³
 

It is absurd to say that rocks can have rights . . .  because rocks belong to a category of entities of whom rights cannot meaningfully be predicated.

Joel Feinberg⁴

It would seem that there is a fundamental and substantive disagreement here between Stone and Nash on the one side, and Feinberg on the other. But might not the contestants be firing past, not at, each other? That will be the essential contention of this analysis. To abandon the military metaphor and write literally, I suggest that the dispute is less substantive than it is conceptual. If so, then a resolution of the apparent dispute lies not in a citation of facts (since it seems that none are, or can be, in dispute here) but in a clarification and elaboration of concepts. Following Ludwig Wittgenstein's apt phrasing, the task is no to to "solve" the problem, but to "dis-solve" it -- that is, to identify it as a "non- problem."

We accomplish this "dissolution," I think, by following William James' advice: We look for distinctions. If we do, I believe that we will find that Feinberg, Nash and Stone each mean, by "rights," at least three different concepts, and quite possibly more. In a word, the philosopher, the historian and the legal scholar are "talking past" each other (and thus, parenthetically, it might be logically possible to agree with all of them). Indeed, the "conceptual map" may be more complicated still, for I sense that there are several distinct senses of "rights" distributed in at least two basic categories. These two fundamental categories, with which we begin our analysis, are "legal rights" and moral rights.

"Legal right" might be defined as

"powers, privileges, opportunities and immunities that are explicitly enacted, codified, protected and enforced by the power of the state."

 Stone's definition spells out the operational implication of such a conception. He writes: "an entity cannot be said to hold a legal right unless and until some authoritative body is prepared to give some amount of review to actions that are colorably inconsistent with that right." To this definition, Stone adds three criteria which, he says:

go towards making a thing count jurally -- to have a legally recognized worth and dignity in its own right, and not merely to serve as a means to benefit "us"  (however the contemporary group of rights-holders may be). They are, first, that the thing can institute legal actions at its behest; second, that in determining the granting of legal relief, the court must take injury to it into account; and, third, that relief must run to the benefit of it.⁵

With this definition of "legal rights" on record, the definition of "moral rights" is readily accessible. Such rights are:

Powers, privileges, opportunities and immunities that are founded upon basic moral principles and are supported by cogent rational arguments.

The above is a definition of normative moral rights ("rights" that people should or do have, by moral principle). Descriptive moral rights can be defined simply by adding the phrase "believed to be . . . " after both appearances of the verb "are" in the above definition. This qualification allows for the fact that a belief about rights is a thing apart from a morally valid possession of such rights. Thus, one can wrongly believe (descriptively) that so-and-so does, or does not, in fact have a certain morally valid (i.e., normative) right. Because this normative/descriptive distinction can be so readily expressed, we need say no more about it.

That legal and moral rights are distinct is immediately apparent upon reflection. If they were not -- if legal rights were, ipso facto, moral -- it would make no sense to pass moral judgment upon legislation. But, of course, it makes perfectly good sense to talk about "just laws" and "unjust laws". Indeed, some acts of "civil disobedience" are morally justifiable violations of immoral laws. Before the Civil War, slaveowners in the United States had the "legal right" to reclaim fugitive slaves (as the Supreme Court ruled in the Dred Scott Decision of 1857). Nonetheless, the fugitive slaves had the moral right to flee, (although, of course, they lacked at the same time a legal right, to do so.) The concepts can be further separated when we notice that some "legal rights" may have very tenuous connections with morality -- e.g., "rights" attached to the regulation of commerce or traffic, or other matters dealing with administrative or "civil" law. Conversely, some moral rights are, and should be, unrecognized by law. Examples would include "rights" to courteous treatment, rights to be spared minor nuisances or offenses, and the right not to be betrayed or treated dishonorably by one's friends. (While serious violations of such rights are, of course, covered by libel and other tort laws, the remedies for minor violations are personal, not legal. False friends are not normally taken to court. If their infractions are deemed unforgivable, they are "disowned" and repudiated). Only an oppressive, puritanical and paternalistic state would insist that the Law cover all such cases. The cost of such excess legalism in terms of the liberty and dignity of the citizens would far exceed the benefits thereof. (For more about the distinction between legal rights and moral rights, see my "On the Rights of Future Generations").

What, then, is the relevance of "moral rights" to "legal rights"? Just this: moral precepts and moral arguments are generally cited to support the enactment and enforcement of legal rights. Such is surely the case with Christopher Stone's proposal that "we give legal rights to . . 'natural objects' in the environment." Stone obviously feels that there are good legal reasons (precedents, legal principles, practices and concepts, etc) to support such a proposal. Yet he surely would not do so unless he also felt that there were good moral justifications as well. Thus the "legal recognition" and the consequent the legal protection of these natural entities will be designed to regulate our behavior toward them, and by so doing, it will manifest and acknowledge a public sense of value in these entities.

The protection that Stone would extend to natural entites has readily recognizable similarities to the legal protections afforded individual citizens and organized groups of citizens (such as corporations). Accordingly, Stone feels that it would not be inappropriate in this case to borrow from the body of civil and corporate law, the legal term used to describe the governmental recognition and protection afforded private citizens and groups of citizens. That term, of course, is rights.

All this legally intelligible. The law "can" (in a descriptive sense) do many things -- some admirable and just, some foolish, bizarre and even immoral. The law can even adopt terms from ordinary language and transform them beyond any meaningful application to their original contexts as, for example, in the case of the legal designation of corporations and (as now proposed) fetuses as "legal persons." Whether or not the attribution of "legal" rights to inanimate natural entities also constitutes a radical transformation of ordinary linguistic usage is a matter of no small interest to our present discussion. (We will return to this question shortly). But more significant, perhaps, than the legal transformation of language is the possibility of the legal perversion of justice. Thus, in an autocratic regime, the Law can grant to the police the privilege of overriding the civil rights of ordinary citizens, and the property rights of the privileged can, by statute, override the welfare rights of the masses. Moreover, "the rights of nature" could, in a regime of misanthropic environmentalists, be devised to "trump" the civil, property and welfare rights of citizens (for example, through "zero discharge" pollution laws, trespassing and game laws, etc.). Such excesses could be legally enacted, of course. But should they? Our intuitions rebel. But what reasons do we have to back up these "feelings"? With what basis principles and rules of justification do we evaluate the legitimate processes, functions and limits of the Law? Here, of course, we come to the question of the philosophical, and especially the moral, foundations of the Law. More to the point, we come to the question of which moral rights might underlie Stone's proposal that we extend legal rights to natural objects. For the remainder of this paper, we will deal with this issue of moral rights.

Clearly, Stone's essay is an exercise in both legal and moral philosophy. Thus he offers some valuable observations on the question of the moral status of natural objects -- specifically, upon the metaethical claim that such objects can meaningfuly be said to have rights. Nash apparently concurs with Stone's suggestion that natural entities both metaethically can and normatively should be afforded rights. Feinberg, on the other hand, states (metaethically) that it is "absurd" to predicate "rights" to inanimate objects such as trees and rocks. This apparent dispute can, I think, be "dissolved" if, following James' suggestion, we carefully distinguish and display the relevant sense of "right" at issue here. I suspect that there are at least four such senses at large in this debate:

•  Rights₁ "Personal Rights." These are rights of persons, due to them in recognition of their reflective consciousnes, deliberative rationality, moral autonomy, self-concept, moral capacities, and other qualities that define the unique condition called personhood (Note that bythis accouont some humana beings are not persons, and it is logically posible for non-humans to be persons -- e.g., extra-terresetrial aliens, possibly dolphins, etc.).
   

• Rights₂ -- "Sentient Rights." These rights apply to all beings capable of feeling -- capable, that is, of experiencing pleasure and pain. Such beings have, for instance, a right not to be tortured or treated cruelly. They have this right because they can be said to have an interest in not being hurt. ("Rights"₂ are what Feinberg has in mind in his essay, "Rights of Animals and Future Generations"⁶). "Higher animals" have rights₂. Persons, being sentient, also have these rights, and still other rights (noted above) that "merely sentient" beings do not have.
   

•  Rights₃ -- "Proxy Rights" (e.g., of corporations, of artifacts, and in some sense of natural objects). "Proxy rights," are "fictitious" rights of non-personal and non-sentient entities which, in fact, represent the "conferred" rights of persons or sentient beings. Strictly speaking, a corporation or an historic building cannot be "hurt" -- they have no feelings or consciousness. But "damage" to a corporation can violate the rights of its employees and stockholders, and damage to a building or a natural area can harm the interests of owners or of spectators. "Proxy rights," in short, are personal or sentient rights focused upon things, for purposes of legal or conceptual convenience. (They are, as it were, a kind of "moral shorthand"). Quite obviously, "proxy rights" play an important, though probably not an exclusive, role in Stone's proposal to give tress "legal standing." The residue of his proposal may lie in the next category.
   

• Rights₄ -- "Stewardship Rights" (of non-sentient natural entities). These rights convey the sense that certain natural objects are valuable in themselves, and that this value entails duties of respect, responsible use, or forebearance from abuse. Such thoughtful responsible use or constraint might manifest a personal sense of reference toward nature and its processes, an acknowledgement of unity with nature, and an expression of a human need to care for nature. (We have much to say about the possible moral and philosophical grounds of "stewardship rights" elsewhere in these readings").

Accordingly, rocks and trees may have "Rights"₄ -- as do sentient animals and persons (whose natural qualities we respect and revere). But, by definition, rocks and trees do not have Rights₁ (they are not persons) or Rights₂ (they do not feel). Rocks and trees might have Rights₃, if "concern for their well-being" is, in fact, a disguised and projected concern for the feelings of those who are interested or who have an interest in such natural entities. The distinction is between concern for the value of the rock or tree "itself" (Right₄) and concern for the feelings of those who care about it (Right₃).⁸

How are these separate senses of "rights" logicaly related to each other? To help us understand these relationships, consider an old and generally accepted logical rule which states that as a term expands in its scope of application (logicians would say "extends its denotation"), the list of qualities that define the term (its "designation") contracts.⁹ For instance, the word "animal," has a larger scope than the word "mammal" which denotes a class of animals. Thus the term "mammal" has all the descriptive characteristics of "animal" and more (e.g., warm- blooded, vertebrate, etc.). In short, the larger the class of objects a word refers to , the less can be said, by definition, about any member of that class. Conversely, the more that could be said about something, the smaller the class of things about which the same can be said.

Apply this rule now to our distinct senses of "Rights." (I will exclude rights₃ from this analysis, since it does not fit neatly into this scheme of inclusions and exclusions). Concerning all the types of rights considered above, we can say that these "rights" entail, on the part of others, a moral respect, constraint and responsibility that confines the liberty of those "others" -- i.e., restricts the range of their morally permissible behavior. (Joel Feinberg has noted elsewhere that rights imply duties which "carve out" the scope of others' liberties).

And so, according to the "extended" eco-morality of a Leopold or a Stone, or a Nash, we are not morally at liberty to do as we please to persons, to sentient beings, to trees, to (certain) rocks. But if we restrict the scope of application of rights (e.g., move from Rights₄ to Rights₂). qualifications are added on. Sentient beings, and persons, have a right not to be tortured. Rocks and trees do not have such a "right," not because we are free to "torture" them, but becausue it makes no sense to speak literally of "torturing" (non-sentient) rocks. Furthermore, persons can be said to have rights of religious liberty, freedom of conscience, and freedom of the press. Rocks, trees, dogs and cats, do not have such rights. Not, say, because we forbid dogs and cats to worship, but because it makes no sense to say, literally, that these non-personal sentient beings worship. Again, as we add qualifications to "rights," the scope of their application contracts.

The "dispute," then, comes to this. Feinberg chooses to make sentience a criterion (defining characteristic) of his definition of "rights." Thus his concept is broader than "personal rights" (Rights₁), but narrower than "stewardship rights" (Rights₄). He accepts "proxy rights" as a convenient fiction -- as a "shorthand" for expressing a recognition of the rights of the "clients" (for instance, corporate stockholders). Stone, like Feinberg, apparently holds the "moral constraint" criterion to be essential to the meaning of "rights." But, unlike Feinberg, Stone's concept of "rights" does not include the quality of "having an interest in avoiding pain" as essential to the meaning of "rights." Stone's concept has fewer qualifiers (notably, it lacks a sentience criterion) and thus has a broader scope of application.

Who is correct? In a sense, both. Both have adopted distinct meanings of "rights," clearly explicated their preferred senses, and proceeded to apply these distinct concepts of "rights" in their respective, insightful essays in environmental ethics. The critic who accuses either Feinberg or Stone of using the term "rights" incorrectly, is charging one or the other with making a linguistic error -- of a failure to recognize and to adopt conventional usage. But if this is an error on the part of either Feinberg or Stone, it is not a philosophical error. And it is the philosophical points, particularly some central issues of environmental ethics, that are of greatest interest and significance in these two essays. As we read these essays, we can grasp early-on the intended and divergent meanings therein of the word "rights." Given these, we can read on with interest and gain the insights offered by these superb scholars. And we might also sense that the apparent dispute between them is merely verbal, and not substantive. Thus the "problem" dissolves.

Having said all this, I must add that if "standard usage" of the term "rights" is to count in all this (namely, the "central" intuitive linguistic sense of informed and cultivated users of the English Language, both in "ordinary" and, I suspect, legal and philosophical discourse), then I would judge that preference should be given to Feinberg's interpretation ("rights₂"). While his essay is philosophically controversial, it is nonetheless a supremely well-argued and explicated analysis of the concept of "rights" and of the "interest theory of rights" which supports this concept. On the other hand, Stone's conception of "rights" has the appearance of what Israel Scheffler calls a "programmatic definition" -- that is to say, a "proposal" that the definition be adopted by a community that does not presently use the term in quite this way.¹⁰

How then might our encounter with these essays by Stone and Feinberg effect our behavior and attitudes toward trees and other natural entities? Stone, like Leopold and Muir, may encourage us to treat inanimate nature with greater respect and restraint; to respect, that is, the "Rights₄" of trees, landscapes and ecosystems. But this follows, in part, from his view of nature and man's place in it. However, the particular choice of words adopted to describe this responsibility, need not and should not be the central issue.

"Should trees have standing?" "Do rocks have rights?" It depends upon what you mean by "rights." Trees and rocks do not have personal rights or sentient rights. (That's simply true by definition). They may in some cases have proxy rights (representing, in fact, Rights₁ and/or Rights₂). In some cases rocks and trees may have a large claim of Rights₄. In other cases, they may have a minimal claim of Rights₄. Consider some cases that might tests the extreme claim that "rocks have rights".

Should Michelangelo have attacked a block of Florentine marble with hammer and chisel and chipped and scraped away everything in that block that wasn't "David"? Should the faces of our presidents have been carved out of Black Hills granite? Should James Watt, the Secretary of the Interior, lease out the face of the Half Dome to the Coca-Cola Company, allowing that firm to paint the world's largest billboard?

I confess that I can find it in my heart to forgive Michelangelo for what he did to that marble, thought I am not convinced that Mt. Rushmore was improved by our act of national idolatry. As for the "profitable use" of the Half Dome, I cringe at the very thought of that scheme, and urge you not to suggest it to Mr. Watt.

But in none of these cases, might, or did, the rocks in question complain of such treatment. Those rocks wouldn't, and didn't, "care" a bit. Since rocks are utterly, totally and permanently incapable of "caring," it follows that they have no personal or sentient rights. Because we can be confident that we shall never discover nervous systems or other signs of sentience in minerals or plants, it follows that we will never find grounds for their having such rights. This "failure" to "recognize" personal and sentient rights of rocks does not testify to a lack of moral development or sensitivity on our part. The "fact" that rocks cannot be said to have such rights follows simply from the fundamental nature of rocks and from the logic of these concepts of "rights." Given that rocks are inanimate, we can be as certain that they have no Rights₂ as we can be certain that no bachelors are married and that there are no four-sided triangles.

But it does not follow from this that we are totally at liberty to do what we wish to rocks. It does not, for example, mean that it is not aesthetically and even morally outrageous to paint the Coca-Cola logo on the Half Dome. To do so would violate the rights of those who visit Yosemite Park to enjoy an encounter with wilderness (i.e., "proxy rights" focused upon the Half Dome). Even more, such a desecration would manifest a lack of respect toward our natural origins and the natural context of our lives. Such an act would testify to a meanness and arrogance of spirit that would reflect poorly upon ourselves and our generation, so long as the paint remained on the granite, or the fact of the deed remained in the historical record.

Paint the Half Dome? An outrageous idea! The Half Dome should remain as it is, untouched and magnificent, for the ages to admire. We should leave the granite in Yosemite, the rapids in the Grand Canyon, the Redwoods in Sequoia, and the geysers in Yellowstone as nature has brought them to our epoch. That we should care for and preserve these natural places "for their sakes," manifests our recognition and appreciation of their enduring grandeur, and of our awareness of our proportion and placement in the context of natural time and space. The fact that we have "received" the national parks in our time relatively intact, testifies to the greatness of spirit of those forebearers who set aside these natural treasures for all posterity. Their greatness of spirit has been re-iterated by intervening generations who have, in their time, protected this national legacy.

Half Dome, Lava Falls, the Redwoods, Old Faithful, are parts of the landscape of nature. A continuing resolution to protect them are integral parts of the landscape of our mind and culture. These landscapes, contexts, and systems, both natural and cultural, would be demeaned and diminished by a deliberate decision to paint the Half Dome, inundate Lava Falls, reduce the General Sherman Tree to lawn furniture, or capture and sell the thermal energy of Old Faithful. These places "deserve" a better fate. They have a "Right₄" not to be so abused. Their rights are derived from a natural system that contains as an ingredient, the possibility of conscious, reflective, rational, cultural and spiritual life -- life that can apprehend and be enriched by the presence of such magnificent places.

The "rights" of natural objects are derived, not simply from the capacity of sentient and intelligent creatures to appreciate these objects. They derive from the natural system, the whole, which brings forth both reflective intelligence with its capacity to contemplate timeless magnificence and also the objects that manifest and display this magnificence.

A decision to leave such natural objects and landscapes undisturbed manifests, as Leopold and Stone indicate, an extension of moral responsibility and an enrichment of moral consciousness. Such a decision manifests a sense of moral restraint with regard, not only to one's species or to sentient life, or even toward inanimate objects. These eco-moralists are correct to suggest that this extension manifests moral growth. It is, in a word, praiseworthy. If, like Stone, one wishes to express this extension of ethics with a similar extension of the concept of "rights" to encompass "the rights of rocks, trees and landscapes," we will be extending and thus altering, along with our ethics, our concept of "rights." If we do so, I have no complaint, so long as the morally significant restricted senses

of "rights" remain active in our vocabulary, and available to our moral discourse and thought, and thus, most significantly, available as the moral and conceptual foundations of our personal and legal rights. In any case, we must not let our dispute about the language of morality and the law distract us from the urgent questions of the content thereof. We may invoke "the rights of rocks" and propose that "trees have standing" if we wish and if we are careful to understand the meanings and the intentions of our terms. But whatever language we choose to use, let's keep those damned paint pots away from the Half-Dome!

 

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NOTES AND REFERENCES
 

1. William James, Pragmatism.

2. Christopher Stone, Should Trees Have Standing?, (Los Gatos, CA:Kaufmann, 1974). p. 9. (Excerpted in this Anthology).

3. Roderick Nash, "Do Rocks Have Rights?", The Center Magazine (Nov./Dec., 1977), p. 10.  Nash's insistence on "mineral liberation" receives a much gentler treatment in this essay than I believed it deserved -- at the time of the writing (1980) and ever since.  Nash, who had an acute personal "investment" in his theory of "the rights of rocks," was, at that time, a senior colleague at UC Santa Barbara who had the future of my career in his hands. For a more candid assessment of Nash's views on "the rights of rocks," written shortly after my departure from UCSB, see Section IV of  "Can the Environmentalist Escape Philosophy?"

4. Joel Feinberg, "The Rights of Animals and Unborn Generations," Philosophy and Environmental Crisis,, William Blackstone (ed.), (Athens: University of Georgia Press, l974). p. 44. (Excerpted in this Anthology).

5. Stone, op. cit., p.11.

6. See pages 4 and 5 of "Environmental Ethics: An Introduction," the introductory essay in this collection. See also Mary Ann Warren's "On the Moral and Legal Status of Abortion" (The Monist, 57:1, January, 1973, page 55).

7. In Feinberg, "Rights of Animals and Unborn Generations," loc. cit.

8. The key to "Rights₄" is the notion of the value of the natural object itself -- the so-called "intrinsic value" of the object. I have much more to say about this in "Values in Nature: Is Anybody There?"

9. This is not entirely accurate. In some cases, an additional characteristic may not affect the denotation (scope of application). If we add to the description of "human" the qualification "less than twenty feet tall" the scope is unchanged. But never do scope and description vary directly.

10. Israel Scheffler, The Language of Education, (Springfield: Thomas, 196O), p. 19.

 

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Dr. Ernest Partridge is a consultant, writer and lecturer in the field of Environmental Ethics and Public Policy. He has taught Philosophy at the University of California, and in Utah, Colorado and Wisconsin. He publishes the website, "The Online Gadfly" (www.igc.org/gadfly) and co-edits the progressive website, "The Crisis Papers" (www.crisispapers.org).  Dr. Partridge can be contacted at: gadfly@igc.org .