IT WAS THE SUDDEN RUSH of the goats’ bodies against the side of the boma that woke him. Picking up a spear and stick, the Kenyan farmer slipped out into the warm night and crept toward the pen. All he could see was the spotted, sloping hindquarters of the animal trying to force itself between the poles to get at the goats — but it was enough. He drove his spear deep into the hyena.
The elders who gathered under the meeting tree to deliberate on the matter were clearly unhappy with the farmer’s explanation. A man appointed by the traditional court to represent the interests of the hyena had testified that his careful examination of the body had revealed that the deceased was a female who was still suckling pups. He argued that given the prevailing drought and the hyena’s need to nourish her young, her behavior in attempting to scavenge food from human settlements was reasonable and that it was wrong to have killed her. The elders then cross-examined the farmer carefully. Did he appreciate, they asked, that such killings were contrary to customary law? Had he considered the hyena’s situation and whether or not she had caused harm? Could he not have simply driven her away? Eventually the elders ordered the man’s clan to pay compensation for the harm done by driving more than one hundred of their goats (a fortune in that community) into the bush, where they could be eaten by the hyenas and other wild carnivores.
The story, told to me by a Kenyan friend, illustrates African customary law’s concern with restorative justice rather than retribution. Wrongdoing is seen as a symptom of a breakdown in relationships within the wider community, and the elders seek to restore the damaged relationship rather than focusing on identifying and punishing the wrongdoer.
The verdict of a traditional African court regarding hyenacide may seem of mere anthropological interest to contemporary Americans. In most of today’s legal systems, decisions that harm ecological communities have to be challenged primarily on the basis of whether or not the correct procedures have been followed. Yet consider how much greater the prospects of survival would be for most of life on Earth if mechanisms existed for imposing collective responsibility and liability on human communities and for restoring damaged relations with the larger natural community. Imagine if we had elders with a deep understanding of the lore of the wild who spoke for the Earth as well as for humans. If we did, how might they order us to compensate for, say, the anticipated destruction of the entire Arctic ecosystem because of global climate change, to restore relations with the polar bears and other people and creatures who depend on that ecosystem? How many polluting power plants and vehicles would it be fair to sacrifice to make amends?
“SO WHAT WOULD A RADICALLY DIFFERENT law-driven consciousness look like?” The question was posed over three decades ago by a University of Southern California law professor as his lecture drew to a close. “One in which Nature had rights,” he continued. “Yes, rivers, lakes, trees. . . . How could such a posture in law affect a community’s view of itself?” Professor Christopher Stone may as well have announced that he was an alien life form. Rivers and trees are objects, not subjects, in the eyes of the law and are by definition incapable of holding rights. His speculations created an uproar.
Stone stepped away from that lecture a little dazed by the response from the class but determined to back up his argument. He realized that for nature to have rights the law would have to be changed so that, first, a suit could be brought in the name of an aspect of nature, such as a river; second, a polluter could be held liable for harming a river; and third, judgments could be made that would benefit a river. Stone quickly identified a pending appeal to the United States Supreme Court against a decision of the Ninth Circuit that raised these issues. The Ninth Circuit Court of Appeals had found that the Sierra Club Legal Defense Fund was not “aggrieved” or “adversely affected” by the proposed development of the Mineral King Valley in the Sierra Nevada Mountains by Walt Disney Enterprises, Inc. This decision meant that the Sierra Club did not have “standing” so the court didn’t need to consider the merits of the matter. Clearly, if the Mineral King Valley itself had been recognized as having rights, it would have been an adversely affected party and would have had the necessary standing.
Fortuitously, Supreme Court Justice William O. Douglas was writing a preface to the next edition of the Southern California Law Review. Stone’s seminal “Should Trees Have Standing? Toward Legal Rights for Natural Objects” (“Trees”) was hurriedly squeezed into the journal and read by Justice Douglas before the Court issued its judgment. In “Trees,” Stone argued that courts should grant legal standing to guardians to represent the rights of nature, in much the same way as guardians are appointed to represent the rights of infants. In order to do so, the law would have to recognize that nature was not just a conglomeration of objects that could be owned, but was a subject that itself had legal rights and the standing to be represented in the courts to enforce those rights. The article eventually formed the basis for a famous dissenting judgment by Justice Douglas in the 1972 case of Sierra Club v. Morton in which he expressed the opinion that “contemporary public concern for protecting nature’s ecological equilibrium should lead to the conferral of standing upon environmental objects to sue for their own preservation.”
Perhaps one of the most important things about “Trees” is that it ventured beyond the accepted boundaries of law as we know it and argued that the conceptual framework for law in the United States (and by analogy, elsewhere) required further evolution and expansion. Stone began by addressing the initial reaction that such ideas are outlandish. Throughout legal history, as he pointed out, each extension of legal rights had previously been unthinkable. The emancipation of slaves and the extension of civil rights to African Americans, women, and children were once rejected as absurd or dangerous by authorities. The Founding Fathers, after all, were hardly conscious of the hypocrisy inherent in proclaiming the inalienable rights of all men while simultaneously denying basic rights to children, women, and to African and Native Americans.
“Trees” has since become a classic for students of environmental law, but after three decades its impact on law in the United States has been limited. After it was written, the courts made it somewhat easier for citizens to litigate on behalf of other species and the environment by expanding the powers and responsibilities of authorities to act as trustees of areas used by the public (e.g., navigable waters, beaches, and parks). Unfortunately, these gains have been followed in more recent years by judicial attempts to restrict the legal standing of environmental groups. Damages for harm to the environment are now recoverable in some cases and are sometimes applied for the benefit of the environment. However, these changes fall far short of what Stone advocated for in “Trees.” The courts still have not recognized that nature has directly enforceable rights.
COMMUNITIES HAVE ALWAYS USED LAWS to express the ideals to which they aspire and to regulate how power is exercised. Law is also a social tool that is usually shaped and wielded most effectively by the powerful. Consequently, law tends to entrench a society’s fundamental idea of itself and of how the world works. So, for example, even when American society began to regard slavery as morally abhorrent, it was not able to peaceably end the practice because the fundamental concept that slaves were property had been hard-wired into the legal system. The abolition of slavery required not only that the enfranchised recognize that slaves were entitled to the same rights as other humans, but also a political effort to change the laws that denied those rights. It took both the Civil War and the Thirteenth Amendment to outlaw slavery. The Thirteenth Amendment, in turn, played a role in changing American society’s idea of what was acceptable, thereby providing the bedrock for the subsequent civil rights movement.