b) Assuming that it is possible to expand our notion
of legal persons beyond human beings and corporations, what are the benefits
(or challenges) of extending legal personhood to the entities containing common
pool resources such as rivers or trees (forests)? Should trees have legal
personhood?
While there are both benefits and
challenges of extending legal personhood to common pool resources, I think this
discussion needs to actually begin with a comparison of the proposed personhood
approach with existing regulatory practices.
On first glance, it may seem as
though the idea of giving trees legal personhood is the ideologically opposite
idea of setting up strong regulatory bodies. Legal personhood implies liberal
individuality, while state regulation implies collectivist decision-making by a
centralized body. The approach of legal personhood is even suggested as a
solution to the problems inherent in regulatory bodies, which include co-option
by the governing party as well as by the industry that the body is trying to
regulate.[1]
However, it's not at all clear exactly why it might be thought that a trust
fund run by "guardians" would be any less susceptible to that kind of
corruption. Would industry not also attempt to gain a controlling interest in
the trust fund? Based on the experience we've had with industry influence over
our elected bodies[2], not to
mention the experience with looted aboriginal trust funds,[3]
or the phenomenon of greenwashing,[4]
it cannot be stated with much confidence that a democratic and transparent
process would act as a buffer against industry influence, either. The possible
ramifications of industry taking over these trust funds are actually quite
startling. A lumber company would have a strong interest in becoming a guardian
of the forest, whereas a drink bottling company would desire guardianship over
water sources. Perhaps rules may be erected to disallow these conflicts of
interest, but their enforcement depends on the existence of a functioning
regulatory system, and if we are to argue that this is a reasonable hope then
we have no need to shift to personhood in the first place! If the problem here
is that regulation is ineffective, legal personhood is not a solution.
Stone also points out that legal
personhood has implications of responsibilities as much as it has implications
of rights and that legal personhood for resources could consequently lead to
judgements against the environment for negligence or harm.[5]
While he optimistically suggests that this could lead to more equitable
restitution and greater infrastructure, he does not contemplate how this could
open up legal arguments and tactics that could be used to clear existing
regulatory hurdles. It is possible, then, that the trust fund might not just
fail to protect these resources from exploitation, but might also open them up to
the possibility of even greater exploitation; should industry exploit the trust
fund system as fully as it has exploited the regulatory system, the only
difference between a trust fund and a regulatory body would be less public
oversight.
Perhaps the key point to this
derived equivalency between granting personhood and applying regulation is the
existence of a system of control. One of the key concepts to legal personhood -
even for legal persons that are not natural persons - is self-determination. It
is arguably rationally incoherent - at least linguistically - to give an entity
personhood and then deny it self-determination by assigning it to the
subservience of some other disconnected sentient will. A corporation can make
its own decisions and express it in language that humans can understand; if a
forest has a level of consciousness, it is unable to express it to us.[6]
Any attempt to protect these resources is consequently going to behave as a
regulatory body. The only difference can ever be who is regulating - and who is
regulating the regulators.
Stone also ignores the question of
how effective a system of tort would
actually be in protecting resources, and even implicitly suggests that it wouldn't be effective at all by
salivating over the restitution that such a fund would be able to ensure.[7]
A large trust fund held for the resource would be proof that this approach has
failed in preventing harm, not something to celebrate. Currently, large
companies tend to view litigation as little more than the cost of doing
business.[8]
If a cost-benefit analysis concludes that the consequences of destroying the
river are less than the profit that could be increased by destroying the river
then the river will be destroyed and the fine for doing so will be paid.
While the tone here is so far quite
cynical, that should not suggest that the switch to legal personhood may not
have benefits. It is likely to give people that use or need resources a greater
say in how or whether they are protected.[9]
While increasing the costs of pollution may be more likely to increase
inflation than decrease pollution, it would still act as a competitive
disincentive to pollute more than is necessary.[10]
Introducing the language of rights to the environment would likely change our
conception of nature for the better.[11]
However, the actual change in regulatory practices is likely to be minimal - as the regulation of the resource would merely shift from the public to the private domain, giving legal personhood to resources seems like little more than another form of deregulation.
However, the actual change in regulatory practices is likely to be minimal - as the regulation of the resource would merely shift from the public to the private domain, giving legal personhood to resources seems like little more than another form of deregulation.
[2] http://www.polisci.ccsu.edu/trieb/InfluGov.html
[3] DeVries, Laura. Conflict in Caledonia: Aboriginal Land Rights and the Rule of Law. UBC Press, 2012. p. 37.
<http://books.google.ca/books?id=0KRGpyO7DncC&pg=PA37&lpg=PA37&dq=six+nations+trust+fund+stolen&source=bl&ots=W3gnCfQtYw&sig=AYfZ3r2dM-uRNc37_rIghSLXV0E&hl=en&sa=X&ei=VDF8UbqqDcnX0gHG94GwBg&ved=0CFIQ6AEwBA#v=onepage&q=six%20nations%20trust%20fund%20stolen&f=false>
<http://books.google.ca/books?id=0KRGpyO7DncC&pg=PA37&lpg=PA37&dq=six+nations+trust+fund+stolen&source=bl&ots=W3gnCfQtYw&sig=AYfZ3r2dM-uRNc37_rIghSLXV0E&hl=en&sa=X&ei=VDF8UbqqDcnX0gHG94GwBg&ved=0CFIQ6AEwBA#v=onepage&q=six%20nations%20trust%20fund%20stolen&f=false>
[4] http://www.youtube.com/watch?v=iHsIjMPP2M8
[6] http://www.huffingtonpost.com/2012/06/05/do-plants-think-daniel-chamovitz-see-feel-smell_n_1571027.html
[8] http://www.maacenter.org/blog/death-the-cost-of-doing-business.html
laws 2201
april, 2013
http://dghjdfsghkrdghdgja.appspot.com/thoughts/essays/standingtrees.html