The concept was originally proposed in the United States as a topic in environmental ethics.
Two perspectives must be kept in mind when considering the concept.
In 1995, an actual lawsuit was filed in Japan in which the Amami rabbit (Pentalagus furnessi) sued the national government. Lawsuits such as this, which may seem odd when first heard about, came into being in the 1970s in the United States, and are based upon the concept that is called "the rights of nature."
A Call for Environmental Rights
Japan's period of high economic growth that began in the latter half of the 1950s was also a period of major environmental pollution. The circumstances in the country at the time were such that, even as factories were emitting pollutants, the majority of the victims of the emissions could not obtain relief, on the grounds that the emissions were occurring on privately owned property and that it was affirmed that the corporate activity was supporting high economic growth. In this context, the Osaka Bar Association's Study Group on Environmental Rights moved forward with a study of the subject of environmental rights, which was advocated in 1970 at the annual convention of the Japan Federation of Bar Associations on the Protection of Human Rights, publishing its findings in 1975. The group's document "Environmental Rights" states, "We have the right to manage the environment and to enjoy a good environment, and on the basis of these rights, if a person or entity is recklessly polluting the environment and obstructing or attempting to obstruct our welfare, we also have the right to demand its abatement or prevention."
Even though this was a watershed concept, to this day it has not been accepted by the Japanese courts; even within academia, it has not been universally supported. Why is that? On the one hand, it is because the courts have been averse to the broad and amorphous nature of environmental rights and have gone about the issue of redress to injured parties through other, more concrete and limited legal principles. I must also point out the structural limitation included in this way of thinking. That is, this type of environmental right is based upon the concept of people having the right to manage and enjoy the environment, which is itself based upon the theory, serving as the foundation of the modern system of laws, that there is a distinction between the subjects of rights (persons) and the objects involved (things). Consequently, for example, when there is destruction of the natural environment in a remote place, it is difficult to make it an issue, since no human party is directly harmed.
The Advent of the Rights of Nature
One of the alternative concepts to be considered regarding this structural limitation is "the rights of nature." The background for this is the shift from viewing nature as something that human beings utilize, and seeing the value of nature as merely the value of its utilization, to the viewpoint that humans themselves are a part of nature and that nature and ecological systems have value in and of themselves. Thus nature, and not just people, can be regarded as the subject of certain rights.
The concept of "the rights of nature" was originally proposed in the United States as a topic in environmental ethics. Aldo Leopold's Sand County Almanac (1949) is representative of this. Later, in the 1970s, Christopher Stone argued for the rights of nature as a legal theory in his essay "Should Trees Have Standing? Toward Legal Rights for Natural Objects" (45 Southern California Law Review 450 ), contending that trees could legally sue as plaintiffs in a lawsuit.
The courts are by no means all-powerful, which is sometimes misunderstood, however. If, in order to deal with a problem, those whose rights and benefits have been infringed intend to recover them by appealing to force, including acts of violence, society on the one hand will abound with force, and on the other hand will also abound with those who cannot recover their rights and benefits because they have no strength. In this scenario, the institution that we call a court of justice is, to begin with, to make restitution prepared by the state for the use of such force, which it shall prohibit. It follows that only a party that has suffered a violation of its rights and benefits can generally be a plaintiff in a court proceeding.
For example, even if a development action by the government results in the destruction of the natural environment, unless there is a specific injured party a suit cannot be brought in a court of law. This system may appear at first to be irrational, but in a democratic nation the majority decisions of its citizens are latently, and of its elected politicians, directly, the basis for the government's development actions, and it is intrinsically antidemocratic for a court to overrule such actions.
In other words, allowing a suit to be filed on behalf of specific injured parties sets the scene, for instance, for protecting the rights and benefits of individuals that cannot be usurped, not even by a majority. Looked at in this way, there is a certain rationality to the way of thinking that says that issues of damage to the natural environment caused by government development actions should intrinsically be resolved by the legislature and not by the courts.
Unfortunately, however, people tend to be indifferent to issues that do not directly involve their own interests. There is no assurance anywhere that the principle of majority rule is a suitable way to pass along a good natural environment to our children, or to give any more than a passing thought to the extinction of species, or to consider the equilibrium of the entire ecosystem. That is surely the reason that Stone wanted trees to be given standing to bring suit as plaintiffs.
In the United States there have been a great number of law-suits in which nature itself has been the plaintiff. Of course, it has been "persons" that have actually brought suit, but those persons have been considered to be along the lines of conservators or trustees for nature, and they have been given standing to sue even though they were not themselves the "injured party." One of the first of these cases was Sierra Club v. Morton (405 U.S. 727) decided by the United States Supreme Court in 1972. The Sierra Club, an environment-protection organization, had sued to block a permit issued for the development of a ski resort in the Mineral King Valley in Sequoia National Park in central California. Although in the end the Sierra Club was denied standing, the dissenting opinion of Justice William O. Douglas, that the valley itself should have been the plaintiff, made a large impact. Later, a river in upstate New York was the plaintiff in the case of Byram River v. Village of Port Chester in 1975, and an island was the plaintiff in 1979 in Palila v. Hawai'i Department of Land and Natural Resources; in both of these cases the decisions were construed in such a way that persons were the conservators and trustees for nature.
Perspectives in Considering the Rights of Nature
I think that it is necessary to have in mind at least two perspectives when considering the rights of nature.
First, as for the direct effect on the legal system of the rights of nature, it is necessary to have a perspective on the division of roles between the legislature and the courts. As we saw above, the argument for the rights of nature in the United States has led directly to an opening of the doors of the courts, and by opening up, the courts have taken on the major problem of protecting nature and the ecosystem. This brings about the necessity of once again looking at the respective roles of the government and the courts. For example, in the United States, in addition to the principles of the judicial precedents mentioned above, under the laws of Congress, any citizen may sue in order to protect an endangered species. That means explicitly transferring authority from the legislative branch, where the process of adjusting interests is involved, to the judicial branch, in what might be termed a state of emergency created by the possible extinction of a designated species.
Meanwhile, in 1995 in Japan, four wildlife species, including the Amami rabbit, as well as an environmentalist organization and individuals sued, as coplaintiffs, to have the permit for a golf course development revoked. Without acknowledging any construction whereby the environmentalist group and the individuals were conservators or trustees of the Amami rabbit, the court rejected the lawsuit on the grounds that there should be an anonymous "person" who could state its name as "Amami rabbit," but that no such "person" had been identified. One could criticize the court's posture as being overly conservative, but viewed from another point of view, in such a situation, in which the legislature does not fully indicate the role that it demands of the courts, one can say that the court's action was inevitable.
Second, the "rights of nature" approach is also a bit dramatic in its sense of pressing for a change in the "people v. nature" thought pattern, but for it to lead to a restructuring of the entire legal and social system, simply revamping the text of the laws will not be sufficient. Even if, for example, the Japanese Constitution were to provide for nature itself to be the subject of rights, only a human being would be able to assert and protect those rights. Even if people are charged with the duty to protect nature, in light of the fact that nature is without a voice to speak for itself, it is ultimately left to the wisdom of human beings---and this is not limited to the wisdom of any one particular group of people---to decide specifically what, if anything, should be done. Consequently, when considering the rights of nature at the level of changing thought patterns, it is naturally not merely a legal technicality, but something that requires the collaboration of many fields: religion (especially Buddhism), philosophy, ethics, and education. I heartily invite people of religion to play a more active role in this.
Nobuyuki Sato is a professor of law in the Chuo Law School at Chuo University in Tokyo. He received his Ph.D. from Chuo University in 2000. His specialties are legal research, information law, and public law in North America and the United Kingdom. He is coauthor of several books on legal studies, including guides to the Constitution of Japan.
This article was originally published in the July-September 2008 issue of Dharma World.
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