Burgers, L.

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Blogpost on anthropocentrism in European private law and the mountain the Ben Nevi

International Migration, Integration and Social Cohesion online publications

UvA-DARE is a service provided by the library of the University of Amsterdam (https://dare.uva.nl)UvA-DARE (Digital Academic Repository)Anthropocentrism in European Private Law and the Case of Ben NevisBurgers, L.Publication date2017Document VersionFinal published versionLink to publicationCitation for published version (APA):Burgers, L. (Author). (2017). Anthropocentrism in European Private Law and the Case of BenNevis. Web publication or website, Judges in Utopia.https://judgesinutopia.eu/anthropocentrism-in-european-private-law-and-the-case-of-ben-nevis/General rightsIt is not permitted to download or to forward/distribute the text or part of it without the consent of the author(s)and/or copyright holder(s), other than for strictly personal, individual use, unless the work is under an opencontent license (like Creative Commons).Disclaimer/Complaints regulationsIf you believe that digital publication of certain material infringes any of your rights or (privacy) interests, pleaselet the Library know, stating your reasons. In case of a legitimate complaint, the Library will make the materialinaccessible and/or remove it from the website. Please Ask the Library: https://uba.uva.nl/en/contact, or a letterto: Library of the University of Amsterdam, Secretariat, Singel 425, 1012 WP Amsterdam, The Netherlands. Youwill be contacted as soon as possible.Download date:10 Mar 2023Anthropocentrism in European Private Law and the Case of Ben Nevis – Judges in Utopiahttps://judgesinutopia.eu/anthropocentrism-in-european-private-law-and-the-case-of-ben-nevis/[28-6-2019 16:33:47]Judges in UtopiaJudicial law-making in European private lawREADING RECOMMENDATIONANTHROPOCENTRISM IN EUROPEAN PRIVATE LAW AND THE CASEOF BEN NEVISDecember 14, 2017It is a truth universally acknowledged that a constitutional state in possession of democratic institutions mhave been made by humans. Law more generally is a human construction. Law is considered by some to even problematically anthropocentric, that is, it would be overtly focused at human interests and thereneglect the interests of animals and other forms of life on the planet.[1] Yet, in national legal systems acrothe globe, more and more natural entities get assigned legal personality: rivers, woods, mountains, evMother Earth herself. This fascinating movement has entered the sphere of European private law, now Scottish Muir Trust Foundation considers to endow its property, the mountain Ben Nevis, with lepersonality.[2] Key questions here are whether such a move would diminish anthropocentrism in the law awhether it would lead to better environmental protection.AnthropocentrismMany agree that the legitimacy of democratic laws follows from the idea that all those who have to abide it have a voice in its construction.[3] This is very close to the principle of all affected interests, stipulating tall interests touched upon by a certain law should be considered in the process of law-making.[4] Yet thowho have a voice in the law-making process typically are human beings, mostly inclined to defend humAnthropocentrism in European Private Law and the Case of Ben Nevis – Judges in Utopiahttps://judgesinutopia.eu/anthropocentrism-in-european-private-law-and-the-case-of-ben-nevis/[28-6-2019 16:33:47]interests, which can lead to the problem of the law to be anthropocentric. The results are clear: Even thouinternational consensus exists on the necessity to act upon – for instance – climate change, governmefind great difficulties to implement environmental measures. In the world of today, many species aendangered or actually die out, rivers are polluted and entire islands disappear below sea level. Humwealth and technology thrive more than ever.Legal personality‘Legal personality’ is a status the law can assign to an entity; it refers to the ability to bear legal rights aduties and to defend those in court. Interestingly, legal systems do consider not only human beings to legal persons, but also corporations and institutions such as municipalities, States, or churches. Animals other natural entities normally have no legal status – for the law, they are mere ‘things’. This is to say tpeople may have responsibilities towards them, but normally these natural entities cannot defend their rigin court rooms, let alone articulate their voice, or vote in the political process.Legal personality for natural entitiesYet in 2008, Ecuador was the first country on the world to include in its constitution rights of nature, Pachamama. Furthermore, in 2010, Bolivia proclaimed its Ley de Derechos de la Madre Tierra (the law the rights of Mother Earth) – making the Earth a legal person in the Bolivian legal system. In Argentina  similar proposal is made. Last summer, in Columbia and India, courts recognized certain rivers to have lepersonality;[5] in New Zealand, the same was done by legislation for a river and a forest.Environmental protectionIn India and New Zealand, the reasons for endowing these rivers with legal personality were mostly religio– people in these countries consider the rivers to be divine entities. The Bolivian, Columbian and Ecuadormoves, in contrast, were inspired by more environmental reasons. The Scottisch Muir Trust Foundation is conservation charity dedicated to protecting and enhancing wild places in the UK’.[6] Its reasons for givthe Ben Nevis – the highest mountain in the UK – the status of a legal person is purely environmennature and wild life should be protected. Lawyers working for the Muir Trust Foundation call themselves ‘wlawyers’.Balancing rights in private lawThe question now becomes, of course, whether endowing a natural entity with legal personality indeed leato better environmental protection. To be a legal person and thus, to be able to defend one’s rights in coudoes not automatically mean one’s interests prevail in a private law conflict. On the contrary, in private larights and interests of two parties are typically balanced against each other. Outcomes can be compromisor an outright loss for one party. Imagine some corporation (= a legal person) would litigate about its factosituated close to the legal person the Ben Nevis. The interests of this hypothetical factory could very well wagainst the interests of the mountain in private law litigation. Therefore, possibly stronger environmenAnthropocentrism in European Private Law and the Case of Ben Nevis – Judges in Utopiahttps://judgesinutopia.eu/anthropocentrism-in-european-private-law-and-the-case-of-ben-nevis/[28-6-2019 16:33:47]protection could be obtained if governments simply declared natural entities to be national parks, or offic‘wild life areas’ that merit absolute protection against industrial interests.Power of private law and the role of judgesFor that last option, however, governments have to be willing to do so, whereas the core of probl‘democratic laws are anthropocentric’ is precisely that environmental measures prove to be unpopular. Tforce of private law, now, is its bottom-up nature: a private foundation, such as Muir Trust, can decide transform its property, a mountain, into a legal person. Judges have a particularly important role to play hefor it is for them to either acknowledge this legal personality and allow the natural entity standing in court, dismiss the whole construction as ridiculous.Judges for UtopiaJudges applying European private law should not be too proud, nor too prejudiced towards legal personafor natural entities. Certainly, legal personality is a mere legal status – a fiction, so to say – which does lead to any better environmental protection as such. In this vein, Nick Mount remarked about the Columbriver with legal personality: “The Atrato River in general, and Rio Quito in particular, serve as a stareminder that awarding environmental rights is not the same as realising them.”[7] Yet we should not forthe symbolic power of fiction that may lead us closer to a Utopia in the positive sense of the word. In politiphilosophy, calls are made to include animal voices in the democratic process,[8] or even ‘things’.[9] Trivers with legal personality and the Ben Nevis cannot vote for the elections (nor corporations, nor churchfor that matter). Yet to consider not only humans and their corporations, but also natural entities to persons, legally speaking, might be a first step to turn the anthropocentric tide of our legal system. [1] Cf eg Stephen M. Gardiner Debating Climate Ethics Oxford University Press (Oxford: 2016), pp 32-37[2] Shttps://www.johnmuirtrust.org/assets/000/002/678/John_Muir_Trust_Journal_63_Autumn_2017_original.p1508494702 and also https://www.ukela.org/content/page/6379/ben%20nevis.pdf[3] Cf eg Jürgen Habermas Faktizität und Geltung; Beiträge zur Diskurstheorie des Rechts und ddemokratischen Rechtsstaats Suhrkamp Verlag (Frankfurt: 1998), p 14[4] Robert Goodin explains very clear why this principle reflects the essence of democracy in ‘Enfranchising All Affected Interests, and Its Alternatives’ 35 Philosophy & Public Affairs 1 (2016), pp 40-68[5] In India, this order is however stayed by the Supreme Court – we have to await how this is eventuaAnthropocentrism in European Private Law and the Case of Ben Nevis – Judges in Utopiahttps://judgesinutopia.eu/anthropocentrism-in-european-private-law-and-the-case-of-ben-nevis/[28-6-2019 16:33:47] PREVIOUSMETAMORPHOSIS? ARTICLE 47 EUCFR IN UCTDCASESNEWER ARTICLE ON ACTIVISM THROUGH JUDICIALPROCEDURES IN 'WIJSGERIG PERSPECTIEF'Name * Email *WebsiteLEAVE A REPLYYour email address will not be published. Required fields are marked *Commentgoing to be decided.[6] https://www.johnmuirtrust.org/[7] Nick Mount ‘Can a river have legal rights? I visited the jungles of Colombia to find out’ The Conversat6 October 2017[8] Sue Donaldson & Will Kymlicka Zoopolis, a Political Theory of Animal Rights Oxford University Pre(Oxford: 2011); Eva Meijer Political Animal Voices PhD Thesis Univeristy of Amsterdam (Amsterdam: 201accessible through  https://pure.uva.nl/ws/files/15946241/Thesis.pdf[9] Bruno Latour has called for a ‘parliament of things’ to be established in We have never been modeHarvard Univeristy Press (Harvard: 1993) pp 142-145 and, later, again in Facing Gaia Polity Pre(Cambridge: 2017). In 2015, students set up a parliament of things to negotiate a new climate agreement the same time as the conference of the parties of the United Nations Framework Convention on ClimChange, the latter of which resulted in the Paris Agreement, which is celebrated for its ambition. It turned that the students, amongst whom not only representatives of countries, but also of, for instance, oceawere included, came up with an even more ambitious agreement. This enormous experiment was caught David Bornstein in the movie Making it Work, which can be watched online for free. For further artisexperiments with this idea, see alsohttps://www.youtube.com/watch?v=oxG0ZWNpe1sBy Laura Burgers 0 Comments

Anthropocentrism in European Private Law and the Case of Ben Nevis

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Anthropocentrism in European Private Law and the Case of Ben Nevis

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