The Global Legal Movement to Treat Nature as a Person

Inbred, feral, and hungry, the “cocaine hippos” of Colombia took to the rainforests after liberation from Pablo Escobar’s menagerie at the time of the drug kingpin’s death in 1993. From an initial population of four, the hippos are now a fast-growing nuisance numbering over 100. Yet they are also the stuff of legend and an obvious favorite in a popular culture ever in search of quirky, new animal mascots.

In part because of their singular fame, a symbolic impediment to treating them as a common invasive pest was introduced in October, when a U.S. judge recognized their status as “interested persons,” which at least (in principle) enables them to exercise their legal right to obtain information in a U.S. legal trial. This ruling is not enforceable in Colombia, but it is a milestone in U.S. law and pushes the idea that the Earth is a political community composed of all sorts of “persons”—only some of whom are human.

Escobar’s hippos are far from unique (at least with respect to their claim to personhood). Building upon his own 2010 article, “Legal Personhood and the Nonhuman Rights Project” (Animal Law 17/1), the philosopher and animal-rights activist Steven Wise has spearheaded a movement for animal freedom that has successfully used the writ of habeas corpus to secure it—a writ that generally presupposes of the entity whose freedom is being sought that it is a “person.” Following Wise’s strategy, in 2018 a group of philosophers wrote a brief in support of two captive chimpanzees, Tommy and Kiko, arguing that they “satisfy the criteria [for personhood] and are entitled to habeas corpus relief.” As early as 2004, before the Nonhuman Rights Project had begun, a landmark case known as The Cetacean Community vs. George W. Bush asked an American court to decide whether marine mammals have the legal standing necessary to bring a suit in their own name. Again, the presumption is that such legal standing flows from personhood, even if until recent years this did not have to be made explicit, since the kind of persons brought before the court were consistently those we take to be paradigmatic: human beings.

Escobar’s hippos are far from unique (at least with respect to their claim to personhood). Building upon his own 2010 article, “Legal Personhood and the Nonhuman Rights Project” (Animal Law 17/1), the philosopher and animal-rights activist Steven Wise has spearheaded a movement for animal freedom that has successfully used the writ of habeas corpus to secure it—a writ that generally presupposes of the entity whose freedom is being sought that it is a “person.” Following Wise’s strategy, in 2018 a group of philosophers wrote a brief in support of two captive chimpanzees, Tommy and Kiko, arguing that they “satisfy the criteria [for personhood] and are entitled to habeas corpus relief.” As early as 2004, before the Nonhuman Rights Project had begun, a landmark case known as The Cetacean Community vs. George W. Bush asked an American court to decide whether marine mammals have the legal standing necessary to bring a suit in their own name. Again, the presumption is that such legal standing flows from personhood, even if until recent years this did not have to be made explicit, since the kind of persons brought before the court were consistently those we take to be paradigmatic: human beings.

The expansion of the legal category of “person” in this way may look like an opportunistic bit of wordplay, redefining a term in a way that satisfies certain immediate goals but without any real requirement that the new definition wins broad assent—or even that it seems intuitively plausible to anyone. In fact, however, the broadening of personhood to include some nonhuman entities is not so much a recent adaptation of an old legal concept as it is a return to an even older one.

A herd of hippopotamuses swim in a muddy lake at the abandoned country home of former drug kingpin Pablo Escobar in Puerto Triunfo, Colombia, on Dec. 10, 2002. Albeiro Lopera/Reuters

For a long time, the only way under the law to protect an animal from wanton abuse was to characterize the abuse as harm to property, essentially no different from the sort of law that prevents you from smashing your neighbor’s wheelbarrow. As for morality, if it was to enter into question at all, it was indirect incitement to moral depravity brought on by abuse of animals that justified any prohibition on harming them. Thus, philosopher Immanuel Kant insisted it is indeed wrong to harm domestic animals, but this still does not require us to suppose these animals are, as he would say, “ends in themselves.” They can only ever be means to distinctly human ends while a child who grows up torturing these “means” is, at worst, going to be more prone to abusing human beings later in life—animal torture as a gateway to human torture—or, at best, is going to be stunted in his or her overall moral development.

In any case, such indirect protection generally only extends to domestic animals while the vast majority of animals belonging to the category we call “wildlife” cannot be protected as property because, by definition, they do not belong to anyone. Over the course of the 20th century, significant subcategories of wildlife would come to be legally protected as part of large-scale conservationist efforts. But the concern here was at the population level rather than the individual and typically implied no commitment to the irreducible worth, however that may be conceived, of any individual member of a given protected species.

Koko the gorilla with trainer Penny Patterson (left) is seen on May 12, 1977. Koko became an international celebrity for her ability to communicate in sign language and understand English.Barney Peterson/San Francisco Chronicle via Getty Images

For example, gorillas, it appears to many, are sufficiently like human beings in deserving not to be harmed for the same reasons we deserve not to be harmed: not because we belong to someone else and not because our species is at risk of disappearing (though this is, in fact, also the case for gorillas) but because we are—however one might wish to flesh this out in theoretical, metaphysical, or even religious terms—intrinsically worthy beings. The best way to recognize this apparent truth in law has been to reclassify gorillas—perhaps to “promote” them to the status of person as has been done with varying degrees of success in several European countries, New Zealand, and Argentina.

So far, this is the easy part. Again, the case for gorilla personhood has typically been made on the basis of an evident similitude of internal capacities they share with us. Even hippos have what appear to be big smiling faces and plainly love to eat, so they come across as (in certain salient respects) relatable. But no one, at least no one directly involved in modern states’ law-making institutions, will make a similar argument for rivers and mountains. Rivers, it is generally believed, have no internal capacities at all. They are not subjects. To adapt an expression from philosopher Thomas Nagel, there is nothing that it’s like to be a river.

Yet today, at least some rivers have been reclassified as persons too. To bring such a river harm is to harm a person, a being that ought to be considered an end in itself with inalienable rights and intrinsic worth. In other words, some legal systems are now treating rivers as subject entities nearly universally recognized as lacking any subjective existence at all.

Nor was it traditionally believed that only human beings could don such masks. Outside of the context of drama, in the Roman Republic, personhood was commonly extended to municipalities and voluntary associations. This entailed, among other things, that such collective bodies had rights and responsibilities independent of their individual members. They were not themselves individual human beings, but they donned a mask, so to speak, by which they presented themselves to the world as singular characters.

In the early modern period, with the rise of powerful joint stock companies for the funding and orchestration of global trade, the idea of corporate personhood became common. And soon enough, the conceptual peculiarity of this idea found echoes in the work of some of the greatest philosophical minds. Philosopher Thomas Hobbes, for example, is sensitive to the origins of personhood in drama and claims everything that counts as a person is in some sense an actor. “A person,” the philosopher wrote in his 1651 book, Leviathan, “is he whose words or actions are considered, either as his own, or as representing the words or actions of another man, or of any other thing to whom they are attributed.” From here, Hobbes makes a crucial distinction: “When [these words] are considered as his own, then is he called a natural person: and when they are considered as representing the words and actions of another, then is he a feigned or artificial person.” Among such artificial persons are corporations, such as the East India Company, but also, in Hobbes’s view, the state itself.

Even when we come to appreciate the long history of nonhuman personhood, however, we are still hardly in a position to understand how it might be extended to rivers. For although rivers are not moral subjects and lack innate capacities in virtue that we attribute to intrinsic (rather than instrumental) moral worth, unlike corporations or states, rivers are evidently not “representing” anyone or anything. They are simply flowing.

Legislation in Bolivia, and indeed Ecuador’s new 2008 constitution, enshrine within law the “rights of nature.” While being a rights-bearer is not precisely the same thing as being a person, the two have typically overlapped to the point of near co-extensivity throughout modern history. But this overlap does not do much to help determine what a person is, because a clear understanding of what rights are is no less difficult to pin down.

The Whanganui River is seen near the entrance to Whanganui National Park on New Zealand’s North Island on Jan. 21, 2019. The river was given personhood status in 2017 in deference to the beliefs of the Indigenous Maori people.Matthew Lovette/Education Images/Universal Images Group via Getty Images

When the Ecuadorian Constitution’s Article 71 specifies that nature “has the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes,” we might similarly suspect this declaration translates faithfully into a conservationist imperative. The apparent inescapability of an anthropocentric motivation for conservation, moreover, seems to appear in the constitution’s Article 27, where a prior right is identified for human beings “to live in a healthy environment that is ecologically balanced, pollution-free and in harmony with nature.” Could it be that Article 71 simply restates, from an attempted nature-centric angle, what has already been claimed in Article 27 but in the more familiar terms of human rights?

Such a suggestion fails to take into account the effort at the heart of the revised constitution and similar legislation elsewhere to do justice to Indigenous conceptualizations of nature and humanity’s place within it. This effort has resulted in what Belgian legal scholar François Ost calls “legal animism,” which not only carves out a space for the preservation of traditional belief systems within modern Western (or Western-derived) legal frameworks but also permits these belief systems to determine the laws’ content and scope. Although it is impossible to succinctly summarize the great diversity of Indigenous beliefs around the world, it is certainly true these beliefs often represent human society and the natural environment as constituting a single “socio-natural” unity—thus conceiving nature or the “wilderness” as populated by sundry nonhuman agents whose actions and interests are no less “political” than those of a neighboring clan. Legal systems that seek to reflect this worldview are thus, in Ost’s words, compelled to use language that “personalizes nature.”

A particularly revealing example comes from New Zealand, where, in 2017, in deference to Maori representations of nature, parliament recognized the personhood of the Whanganui River on the North Island, finally bringing an end to long disputes about its territorial status from the 1840 Treaty of Waitangi. The British Empire had at least formally recognized certain rights and responsibilities of stewardship or guardianship flowing from Maori traditional beliefs and practices. How well “guardianship” translated the Maori concept of kaitiakitanga was not a point of long consideration, and in any case, the formal recognition of Maori rights to the river by no means translated, in practice, into smooth coexistence in the region.

Conflicts over practical questions continued, leading eventually to the 1975 Waitangi Tribunal, which sought to redress generations of colonial misuse of resources. The solutions were practical—for example, New Zealand’s government agreed to discontinue used water’s circulation back into the river even after having run it through purification plants—but the differences were cosmological. The kinds of things European settlers supposed one might do to, with, or in a river flowed from a different understanding of what sort of thing or being a river is. As Ost notes, in Maori cosmology, human beings, natural resources, ancestors, and spirits “form a single community of life when they all descend from Mother Earth, which is like the body of the tribe.” Significantly, a single term, whenua, designates both the Earth and the placenta.

New Zealand’s law thus recognizes the Maori relationship of kaitiakitanga to features of the natural environment, translates this relation imperfectly as guardianship, and sees particular resource management rights and responsibilities as flowing from this guardianship. The Maori, who have fought for and won this right, conceptualize their relationship to nature as something more like that of descendants to an ancestor (tupuna), and they see their Whanganui River ancestor with all its tributaries and ecosystem symbionts as Te Awa Tupua, a living whole. The two principal parties to this legal arrangement need not share in the same cosmology for the arrangement to work; “legal animism” does not enshrine animism as New Zealand’s official belief system but only carves out a space in which traditional belief in humanity’s shared community with nature may continue to guide resource management’s practical rationality.

Two members of the environmental group Earth First! hold a sign in front of the Lincoln Memorial in Washington on Sept. 30, 1987, to protest the destruction of the Earth’s rainforests.Bettmann Archive/Getty Images

We might supplement Hobbes’s position and say it is not only this capacity to “speak for” that determines personhood but also, often, a perceived suitability to be “spoken for.” Over the course of the modern period, it seems obvious that corporate entities are the sort of entities that may be spoken for. These initially included municipalities and collectivities with a variety of shared interests, but eventually, the extension of the term “corporation” would be narrowed to include only collectivities whose raison d’être is the accumulation of wealth.

It is common to hear animistic metaphors applied to such collectivities—that they are “rapacious,” for example. Significantly, the wealth these collectivities accumulate has typically come from the extraction of natural resources and ecosystem complexes, such as rivers and mountains, which Indigenous people attribute a status akin to personhood to. It is not that the Maori are particularly susceptible to fictional thinking about a certain kind of nonhuman collectivity while Europeans recognize only those entities that are, in metaphysical rigor, plainly and uncontroversially persons. Rather, on both sides, we observe personalization of nonhuman entities. Which sort of entities get personalized is a question of values rather than facts.

As environmental protection rapidly takes on a degree of existential urgency, whatever people believe about how the world works, there may indeed be some value in placing the mask of personhood on other entities than those who have been at the center of our attention for the last several centuries: to let rivers speak or to let people attuned to what rivers are speak for them.