Note

This short “essay” was written in response to a video a friend posted on my Facebook timeline about New Zealand granting the Te Urewera national park legal personhood — an idea that another (lawyer) friend took some exception to in the comments.

So… Color me cautiously optimistic? But the devil’s always in the details, and I’d need to understand the situation a lot better than the information in the video allows to really come down on this one way or another.

Some background thinking…

I’ve been going on for a while that I think (one of?) the key question(s) that we need to be asking right now as we work towards resolve the failures of modern democratic systems is: “How do we incorporate the interests of people who are not people into our decision-making processes?”

In other words, how do we recognize the interests of — and our responsibilities to — non-human, trans-human, and not-yet-human entities? A lot of things fall under this broad class of entities: Future (unborn) generations, human ethnic groups and communities, plants and animals, ecosystems. Some of these are humans (who are yet to be). Some of these are made up of humans (either wholly or partially). And some of these may not contain humans at all.

There’s two motivations for this line of thought: (1) At an immediate level, human interests often depend on these entities in ways that we’re unable to adequately capture at an individualized level, and (2) at a philosophical level, thinking about the issue in these terms is a way to recognize that our sphere of moral responsibility extends (far) beyond the purely human realm most of our conversations are restricted to.

The term “people who are not people” is a bit awkward, but I keep coming back to that phrasing because it captures the dual meaning the term “person” has come to have in our society.

At one level, I do think that we need to start thinking of these entities as “people” in a legal sense. We already have a class of “people who are not people” in law — corporations — and while the system for dealing with those entities is flawed, it does provide us a framework for navigating our relationship with those entities (and their relationships with each other).

But this example also lets us get at the second sense of the word “people” — as a synonym for “human being”. And corporations (or communities, or animals, or ecosystems) are not human beings. Again, however flawed it may be, we do manage to navigate this difference; we can talk about corporations have a “right to free speech” in one breath, but also acknowledge that they don’t have a “right to vote” with the next.

Corporations are “people” in a legal sense, but that doesn’t necessarily mean that we treat them as being exactly the same as a human being.

Now, there’s a key difference between corporations and the other entities I think we need to be considering: Corporations are made up of people who are contractually bound together within a clearly delineated legal scope. That’s a big difference, so I think it’s important not to push the analogy I’m making between corporations and, say, ecosystems too far. But I still think the example of corporations is useful, because it shows us that we can (more-or-less) successfully navigate these waters… At least with a simple, relatable non-human “person”.

Now, for the issue of Te Urewera’s “personhood”…

If Te Urewera has been granted the status of legal person in exactly the same way that a corporation is a legal person (which the video makes it appear that it has), then I agree with Ryen Schimerman that this is immensly problematic. Firstly, Te Urewera is not made up of human beings, so there’s already a set of rights that don’t make any sense, and certainly one cannot talk about the park having “responsibilities”. But just as importantly is the fact that a park is probably not a good candidate for consideration of the sorts of entities the interests of, and our responsibilities to, we’re trying to capture here. A park is a human-demarcated piece of land, and I can’t think of a single example where the boundaries of such an area match the ecological reality “on the ground” very well (or at all). The video seems to talk about Te Urewera as if it were an ecosystem, but that almost assuredly extends well past the park boundaries. Moreover, the health of portion of the ecosystem within the park boundaries is almost certainly intimately tied to the health of the larger ecosystem its part of… Declaring the park a “person” is, in this sense, missing the forest for the trees (or, if you will, the person for the arms and legs).

This also gets into some of the explicit concerns that Ryen Schimerman is bringing up, because when we start to think about Te Urewera the ecosystem rather than Te Urewera the arbitrary boundaries, we realize that in this case we are talking about a gestalt entity that humans can be (though are not necessarily) part of. In this sense, once you have entered the park you have become part of the park, so the question of whether the park could be prosecuted for inhumanely treating an animal that died within it is a bit like asking how much responsibility you have to one of your fingers. Thinking about it as an ecosystem also lets us resolve the idea of trespass, which we again see is inapplicable because (1) ecosystems lack distinct boundaries they can trespass beyond, and (2) for the reasonscited above about ecosystems being gestalt entities, suing the park for trespass because a tree fell on your property is a bit like your nose suing your finger for picking at it.

But all of these thoughts only make sense if we’re talking about Te Urewera the ecosystem.

I think it’s also useful to come back to the fact that entities like Te Urewera are made up of other entitites, whose interests may not always align. How do we think through these multiple layers of interests, rights, and responsibilities for actors both human and non-human? This is a great unanswered question; simply declaring a parcel of land a legal “person” neatly side-steps these issues, but the central problem with this approach is that it is precisely these issues that we need to be engaging with.

On the face of it, I fear that declaring the Te Urewera national park a legal person thus simply papers over the problems we’re trying to address here and, because of the arbitrary nature of the entity weve granted that status to (and its lack of good correspondence to the actual systems we’re trying to address), we’ve created a whole set of potential side-problems of the sort Ryen Schimerman describes.

(Interestingly, the video mentions that the Whanganui River has been granted similar status. It’s probably a much better candidate than the park itself, though again there’s questions about whether we’re talking about the ecosystem or the geographic feature, and how to deal with the diffuse interests of gestalt systems.)

So, that’s a lot of concerns. I wouldn’t say that I have the same visceral reaction that Ryen Schimerman does, but I’m likewise not convinced that this was as wise a move as it sounds.

That said…

I do think we need to begin building the social, cultural, and legal frameworks necessary to bring “people who are not people” into our day-to-day decision-making process. I don’t have good, pat answers about how to do this, and frankly I don’t think anyone does. The way that we’re going to figure out how to do this is by trying different approaches.

Some of these are going to be more incremental, like the lawsuit of “Our Children’s Trust” on behalf of future generations that is currently winding its way through the US courts.

Some of these are going to be subtle, like the incorporation if the concept of the “rights of nature” into Ecuador’s constitution.

And some of these are going, frankly, to be blunt instruments, like the declaration of Te Urewera’s legal personhood.

Mistakes are going to be made, ideas tried and then discarded. This is how we figure things out as a society.

So while on the one hand I’m skeptical that granting legal personhood to Te Urewera national park will ultimately have the desired outcome (or even adequately addresses the issues it was intended to), on the other I welcome the conversation.