UDTR — Radar mondial des droits de la Nature

MihneaTănăsescu, Understanding the Rights of Nature: A Critical Introduction, Bielefeld: transcript Verlag, 2022, 165 pp, pb, €40.00.

Identification

Clé publique

doi:10.1111/1468-2230.12910

Auteurs

Roger B. M. Cotterrell

Année déclarée

2024

Langue déclarée

en

Type source

book-review

Première détection

2026-11-09T19:04:47.846549+00:00

Dernière observation des métadonnées

2026-11-10T16:58:51.468649+00:00

Dernière vérification HTTP

Non effectuée

Institutions déclarées par la source

Queen Mary University of London

Pays d’affiliation déclarés

GB

Résumé documentaire — langue originale

A few decades ago, it might have seemed easy to treat the concept of rights as a stable, relatively uncontroversial foundation of liberal legal modernity. Legal philosophers prominently claimed that rights must be taken seriously in legal theory. The strictures of critical legal studies against ‘rights-talk’, as promoting atomistic individualism at the expense of community consciousness, seemed marginalised. And the age of rights seemed to culminate in an ever-widening invocation of human rights proclaimed as universally valid. But matters are different now. Much lustre has faded from human rights as a secular ‘religion’ in the face of their apparent inability to control global violence. The appeal to rights continues to find many new contexts, but fundamental questions about the purpose of rights, who or what should assert them, and what follows from their invocation, are widely mooted. Among the most visible contexts for this questioning is the ever-increasing literature on ‘rights of nature’ (RoN). In many countries around the world natural entities, such as rivers, forests, lakes and regions, have been recognised as entities capable, themselves, of possessing rights and asserting them through human ‘guardians’ acting on their behalf. Ostensible reasons for recognising natural phenomena as legal persons are often that these entities are ecologically threatened, have traditional ethnic or religious significance that must be publicly recognised, or are essential to the wellbeing of local populations dependent on them. Very often these reasons are combined or compete. And they suggest a need for new legal thinking. Mihnea Tănăsescu's concise, clearly written book is presented as an introduction to global developments in practice and theory relating to RoN. The work of a political ecologist, it may not offer the kind of detailed practical analysis that lawyers could wish for as to how such rights can be operationalised, if at all, in the way that private rights are normally assumed to function in positive legal reasoning. But it shows very well the complexity (and to some extent confusion) of narratives around, and expectations about, RoN in different contexts of their use. Some of the most famous contexts (for example rivers in New Zealand, Columbia and India) are analysed in depth, as are other prominent expressions of such rights in the Ecuador Constitution (2008) and the Bolivian Law of the Rights of Mother Earth (2010). And more local and isolated developments are discussed, such as the 2006 Tamaqua ordinance in Pennsylvania, giving standing to assert RoN to protect a municipal area. Tănăsescu wisely avoids trying to map the entirety of global RoN initiatives. It has been suggested in other literature that at least 400 of these may exist globally. Particular initiatives inspire others, almost perhaps like a new legal fashion, or the collective discovery of a seemingly powerful new juristic resource to protect the natural world. Tănăsescu sees much thinking about RoN as misguided. His book is not that ‘of a believer’ he rejects ‘unwarranted enthusiasm’; the idea that such rights can save the environment is ‘an unfounded belief… at worst an actively dangerous one’ (14, 15). The main cause of the problem is that too much thinking is tied to Western liberal legal concepts, which are themselves devices (especially of property accumulation) aiding planetary destruction. This is so even if many RoN initiatives profess respect for indigenous ways of thinking about humans’ place in nature. The central object of the author's attack is what he calls ‘ecotheology’ – a compendium term for vague, abstract ideas about a general extension of moral concern – a widening of the ‘moral circle’ (38) – outwards beyond human beings to present a totalised conception of nature as a moral unity to which humans must relate. There is, in this thinking, typically an assumed binary divide between humanity and the rest of the natural world. Orthodox understandings of RoN thus treat them as aimed at using the means of state law to restore nature to a more pristine state before the effects of human depredations. Typically, following this legal paternalism, natural entities are to be protected by guardians entrusted with asserting the entity's rights – as, for example, in the cases of the Ganga (Ganges) and Yamuna rivers in India or the Atrato river in Columbia (103-104, 107). Tănăsescu sees all the key concepts in this kind of thinking as thoroughly Western-oriented and alien to most Indigenous Peoples. His focus throughout the book is on the lack of congruence of modern legal thought with indigenous perceptions, although he recognises the vast diversity of these perceptions. RoN are very often promoted as serving the interests of Indigenous Peoples but the very idea of nature as a global unity or totality is alien to indigenous thought. This latter typically sees no binary divide between humans and nature, treats natural phenomena as local and particular (not an abstract global unity) and understands the relation of humans to their natural environment as one of continuous interaction, interdependence and change. The idea of restoring nature to some earlier state before human depredation is at odds with indigenous conceptions. In them, human existence in nature is seen as in a continuous process of change; natural phenomena are to be sustainably used by humans just as human existence is shaped by a changing environment. Equally, modern ideas of the legal personality of nature protected by human guardians conflict with indigenous ideas in which individuals do not ‘guard’ their environment but may represent it as its ‘human face’. And because the idea of legal personality is so closely tied to modern Western legal thinking about individual private claims and duties, Tănăsescu sometimes suggests that it might be best to dispense with it in representing nature: perhaps better to think of the existence of natural ‘entities’, as was done in the New Zealand case that recognised the RoN of the Te Urewera area. For the author, the conceptual problems do not end there. The whole notion of rights is so tied up with private assertions of interest, nowadays in a context of modern capitalist society, that it sets the idea of ecological welfare on an individualistic course in which the state inevitably supervises and defines all legal relations. Perhaps in an echo of the old claims of critical legal studies, too much rights-talk is seen as set against the possibilities of community organisation, negotiation and mutuality. But at this point the reader might ask what is left of relevant structures of Western legal thought that might be salvaged for a RoN discourse. In fact, of the many RoN initiatives discussed in the book, the only ones that Tănăsescu really seems to approve fully in terms of their underlying reasoning are the New Zealand cases of Te Urewera (2014) and the Whanganui River (2017), both established on the basis of statute. The former, in its statutory management plan, avoids rights-talk and legal personality (in favour of the idea of a ‘self-owning legal entity’) and sets up the area's management board not as a guardian (with in loco parentis overtones) but as a speaker within and for the natural entity. In the Whanganui case the idea of guardianship is similarly marginalised. In Maori thought ‘local spirits, usually in the form of animals’ (not humans) are the guardians of a place and a gauge of its wellbeing (89), so humans must be understood as merely in partnership with the rest of nature. The greatest strength of the book is in its sensitive effort to reflect and apply indigenous thought in the context of modern environmental problems. Conservation as such cannot properly be treated, in the author's view, as the overriding aim of RoN thinking. Nature must be understood only as it exists in local, particular environments and these are always in a process of change through the interaction of humans and other natural phenomena. Just as nature is not a single totality, a comprehensive unity, neither can human populations affected by RoN claims be treated as monolithic. Their diverse interest claims have to be negotiated in political action. RoN can provide a useful legal focus for such action. And Tănăsescu asserts that these affected populations are not in the business of conservation as such. Their optimal involvement in relation to the rest of nature is to create and maintain a sustainable balance in the environment. Readers might be somewhat disheartened that the author, who insists that RoN ‘are both theoretically and practically possible’ (16), finds so few examples of what he thinks of as their really successful use. Only the two New Zealand cases seem to measure up. He thinks that the modern history of the idea of RoN was set on a problematic trajectory by Christopher Stone's famous article ‘Should Trees Have Standing? –Toward Legal Rights for Natural Objects’ ((1972) 45 Southern California Law Review 450). Arguing pragmatically in a US context that some natural entities should be given legal personality to enable them to have standing to litigate through appointed guardians, Stone assimilated potential RoN to orthodox private rights asserted before courts. These rights would be useful devices to enlarge the ‘moral circle’ beyond human individuals. They would not dislodge established US legal thinking, but merely extend it. And the justification for such an extension would be an explicitly moral one – to assert the moral standing of animals and other natural entities because of their inherent moral worth. Stone's ideas have been followed in many cases. But for Tănăsescu, Stone problematically linked legal pragmatism with mystical ecotheology – that is, with a belief in the inherent, self-evident moral worth of nature as a global unity confronted by the dangers of humanity's greed. Yet global ecotheology provides no litigating plaintiff. It is best seen as a romantic, faith-based appeal (though the author does not use these terms), not a political weapon informed by legal concepts. Ecotheology allocates no political power, so it opens the way for the state to appropriate RoN. If Tănăsescu glimpses a way forward for RoN it is to see them as ‘a process of politically representing nature’ (139). They are in essence a matter of practical politics more than of formal law. The key issue is who is entitled politically to speak for nature (121). Ultimately what counts are political power relations, which law can certainly influence. Giving legal personality to a natural entity has at least the potential to displace the focus of political conflicts within local populations. And those populations may include not only people concerned with local environmental sustainability but also actors interested in extracting resources from the environment for their own private gain. The appropriate objective of legal-political action is sustainability, the balancing of human interests in a particular context, rather than conservation. But the author does not elaborate further. His cautious affirmation of RoN reminds me of the way American minority legal scholars in the 1990s countered the dismissal in critical legal studies of rights-talk. Marie Matsuda well expressed their view as ‘cynical hopefulness’ – don't give up on rights, but don't expect too much. Another impression which this book gives is that the RoN developments described in it – which hardly constitute any unified movement – exist at a tangent to much legal action on environmental matters, even though they raise many new possibilities in legal thought. Tănăsescu does set his discussion continually in the larger context of the global destruction of the environment which he, like many others, associates with capitalism's rapacious drive to endless extraction of natural resources. But the book's approach, rooted in a sincere effort to represent indigenous thinking in relation to specific legal texts or court cases, is resolutely local in focus. It emphasises particular struggles in particular locations in the world. It has little if anything to say about global matters as such – sea levels and the melting of ice caps, global warming generally, the transnational climate impacts of forest destruction, or carbon trading, for example. The author is clearly suspicious of key concepts of modern Western law, seeing them as largely complicit in a capitalist system that sustains extractive industries. Yet it may be that these concepts are all that can really be invoked to address the largest environmental issues. Interestingly, he seems ambivalent about the ‘much-hated idea’ (141) of corporate legal personality. This legal device has been the most important means by which the capacity to hold and use property has been expanded to an almost unlimited extent. As a legal framework for capital accumulation, it has facilitated the power to secure wealth from the environment on a once-unimaginable scale. Yet, alongside his clear awareness of this, Tănăsescu suggests towards the end of the book that separating ownership and management under the model of corporate personality might indeed be a useful means to help empower environmental actors. One might conclude that the translation of local knowledges into the familiar kinds of reasoning of modern law is a necessary, if always problematic, way forward.

Identifiants

DOI

10.1111/1468-2230.12910

OPENALEX

W4400386300

OPENAIRE

doi_________::ae9adb063daa3a51d351c9ef6957be4c

Repères documentaires

Famille documentaire

Doctrine

Types déclarés par les sources

Article · book-review

Juridictions étudiées — sources explicites

EC · IN · NZ

Entités naturelles mentionnées

Fleuve / rivière · Lac · Forêt · Mer · Terre Mère

Les mentions d’entités ne constituent pas une preuve de reconnaissance juridique. La juridiction étudiée est distincte du pays d’affiliation des auteurs.

Sources

OpenAIRE · Document 1

OpenAlex · Document 1 · Document 2

• DOI · https://doi.org/10.1111/1468-2230.12910
• OpenAlex · https://openalex.org/W4400386300

Statut documentaire

Pertinence à examiner

Bibliothèque

Cette identité n’est pas encore intégrée à la Bibliothèque juridique.