06 June 2018

Fictions and Personhood

'From Weakling to Superhero: The Economics of Captain America' by John Robinson and William C. Wood comments 
We examine economic themes surrounding the superhero Captain America. When Steve Rogers became a super soldier, his production and consumption opportunities were expanded greatly, and yet the effect on his lifetime realized utility seems ambiguous. We explore the possibility that Captain America became wealthy through the power of compound return on investment during his stay of nearly 70 years under the Arctic ice. The society and economy that he returned to were much different from what he left behind, and these differences are used to illustrate the nature of economic growth and dynamism. We also show how Captain America’s story illustrates the nature of inflation and major themes in the provision of public goods and public choice.
The New Zealand domain known as Mount Taranaki is closer to gaining legal personhood alongside Te Urewera under the Te Urewera Act 2014 (noted here) and Te Awa Tupua, a matter discussed in my doctoral dissertation.

A perspective is offered by 'Juristic Personhood For Sacred Natural Sites: A Potential Means For Protecting Nature' by John Studley and William Bleisch in (2018) 24(1) Parks.

The authors comment
 The recognition that ‘other-than-human’ persons can be legal subjects has previously been adopted in forms of customary law but has been denied in most modern jurisdictions until recently. The legal concept of juristic personhood is rooted in jus gentium of Imperial Rome, which was also the basis of ‘public trusts’. Juristic personhood has been expanded in some jurisdictions to include other ‘legal subjects’ with specific rights and obligations. Judges in India, for example, have recognised enspirited idols as having legal status with the same legal rights as human beings ever since the nineteenth century. Recently, several additional jurisdictions have recognised certain spiritual-natural entities as legal persons, making sacred rivers and mountains ‘juristic persons’. In this article we review a number of recent cases from around the world that highlight this evolution of jurisprudence over time. The legal regime of juristic personhood may be an effective tactic for safeguarding enspirited sacred natural sites, because it conceptually resonates with the animistic world-view and relational ontologies of many Indigenous peoples. Further study (and litigation) is required for such an approach to become widely recognised, but it could become an effective tool for conservation of nature within community-conserved areas and protected areas.
 They argue
With the realisation that loss of biodiversity and ecosystem services have become global crises (Ceballos et al., 2015; Ripple et al., 2017), there has been a recognition of the need to vastly increase the area of most landscapes and ecosystems under conservation management (Venter et al., 2014; Butchart et al., 2015; Wilson, 2016). Butchart et al. (2015) and others have pointed out that this will require approaches that go beyond conventional Western conservation frameworks, and have particularly advocated community-based management. Community-conserved areas have considerable potential as another form of area-based conservation, which could be enhanced and better secured for the long-term if they could also be endowed with legal recognition. Indeed, the 11th Aichi Target in the Strategic Plan for Biodiversity 2011–2020, drafted under the Convention on Biological Diversity, mentions “other effective area-based conservation measures” (OECM) as a basis for achieving 2020 targets of protection for ecologically representative areas (CBD, 2010, p. 9). Jonas et al. (2014) have suggested that these OECMs should include Indigenous Peoples’ and Community Conserved Territories and Areas (ICCAs) that effectively conserve nature, even if that conservation is an ancillary outcome, not a primary objective, and only if the governance authority wants them to be recognised as such. 
Many sacred natural sites (SNS) include biodiverse habitats or refugia that benefit from ritual protection in the context of animistic beliefs as distinct from protection motivated by a ‘conservation ethic’ (Kopnina, 2012) or legal prescriptions. While this may not apply to most SNS of mainstream religions, these SNS are often still important for biodiversity conservation. As far as many Indigenous peoples and local communities are concerned, the ‘spirits of place’ or numina that enspirit1 most SNS are endowed with certain rights –‘juristic persons’, in all but name – and these communities regularly invoke the numina enabling them to engage in ‘spiritual governance’ (Studley & Awang, 2016; Studley & Horsley, 2018). SNS would be most effective as conservation areas if legal recognition was given to complement communitybased customary ritual protection that is already in place. One possible nascent approach is to bestow juristic personhood on selected landscapes. Most conservation initiatives aimed at the legal protection of the environment are undertaken by Homo sapiens acting as the plaintiff (e.g. a person who brings a case against another in a court of law) and beneficiary. Under the aegis of juristic personhood, the numina that inhabit the SNS are themselves granted standing as plaintiffs in the defence of their domain, represented by a guardian, agent or ‘next friend’. 
Historically most legal systems have “denied legal personhood to natural-spiritual entities” (Jonas pers. comm. 29/6/2017). This article highlights recent cases and trends in legislation that seem to be reversing that denial, based on notions of juristic personhood or nature rights. It can be argued that conceptually juristic personhood falls under the rubric of animism predicated on a posthuman world-view and ecocentric ‘rights of nature’ under the aegis of a pan(en)theistic world-view (Berry, 1988; Berry, 1996; McDermott, 2012; Nash, 1989; Zaleha, 2008).
'Environmental Personhood' by Gwendolyn J  Gordon in (201) 43(1) Columbia Journal of Environmental Law 50 comments
Parks are people too, my friend. So quipped an August 2016 headline making reference at once to Mitt Romney's flip commentary on corporations and to recent developments in New Zealand law enabling landscapes to be named as legal persons - that is, as entities possessing juridical rights akin to those of corporations. In the wake of this and other developments of the concept, legal personhood has struck observers as a promising tool for protecting nature-an idea overdue given the now seemingly unexceptional nature of corporate personhood in protecting corporate rights.  Far from being the settled, stolid doctrine that its long tenure might have it appear to be, however, corporate personhood is quicksilver; it seems an endlessly adaptable concept. How might we come to understand the environment as a similarly flexible rights-holder in a way that is robustly protective of environmental interests? This Article argues that, as an example of how we came to see a non-human entity as a rights holder, corporate personhood may be a useful tool in moving toward understanding the environment as a rights holder. 
Legal personhood is not binary; it is not a yes-or-no proposition. The differentiation of legal rights and responsibilities starts, not ends, at the question of whether something may or may not be considered a person in the meaning of a statute.' The real issue here is what, given the legal personhood of corporations or the environment, that means for how much that legal, practical, rhetorical entity-that category-for-legal-convenience-should be allowed to claim the rights of other shades of personhood. There is, after all, no such thing as a plain-old person; it is law that defines the categories of persons. 
The development of a concept of corporate personhood in American law was anything but inevitable. Although we are familiar now with "the idea of a corporation having 'its' own rights, and being a 'person' and 'citizen' for so many statutory and constitutional purposes," the idea was perhaps as unsettling to contemporary jurists as that of environmental personhood might sound today. Just as "[t]hroughout legal history, each successive extension of rights to some new entity has been.., a bit unthinkable, so too does their contingency become practically unthinkable after they are normalized. Before environmental personhood becomes unremarkable, and thus unremarked-upon, we would do well to consider some of the contingencies in the development of the personhood concept as applied to corporations. 
Even among the very few jurisdictions that have developed concepts of environmental personhood, conceptions of that "personhood" are diverse. In 2014, Te Urewera, formerly a New Zealand national park, was declared to be a legal entity. The act making this designation transformed the land from government- owned national park to freehold land owned by itself.' The country's Whanganui River followed suit in 2017. Years prior to the movement in New Zealand law, Ecuador proclaimed under its constitution the rights of nature "to exist, persist, maintain and regenerate its vital cycles."" Nature here, instead of being named as a legal person directly, instead is given these rights by analogy to "persons and people." In Bolivia, nature is defined as a juridical entity that "takes on the character of collective public interest." In the United States, a number of local governing bodies promulgated ordinances recognizing the rights of nature. 
These new global legal developments arrive alongside what appears to be a wholesale re-evaluation of the place of human interests in relation to nature. New Zealand's Te Urewera Act in particular is seen to be novel for its changes to the very nature of property ownership. It is an unequivocal rejection of a human-centered rights regime for protecting nature as property. 
In the end, our capacity to imagine a politics capable of encompassing things and places far outside of human lives or business interests has more to do with how well legal personhood will protect the environment than does any particular deployment of legal arguments for environmental personhood-just as has been the case in the development of the doctrine of corporate personhood in American law. To show why this is so, the Article is arranged as follows. Part II describes recent advances made in the concept of environmental personhood in locations as varied as Bolivia, Ecuador, India, and New Zealand. Part III examines the usefulness of corporate personhood doctrine as an analogy for proponents of the protection of the environment by means of the concept of personhood. Part IV examines the terms of the debate in more detail, considering the development of rights of nature arguments and the stakes of ontological claims regarding divisions between nature and people. Part V considers the significance of holistic theories of environmental protection to discourses of personhood. Finally, the Article offers some conclusions regarding the development of environmental personhood. Legal personhood may come to be as protective for environmental interests as it has been for corporate interests; it can become so by referencing the latter's protean, politically fluid nature.
'The Whanganui River as Te Awa Tupua: Place‐based law in a legally pluralistic society' by Liz Charpleix in (2017) The Geographical Journal comments
A landmark political decision recognising the legal personhood of a river provides insights into how legal pluralism may evolve and how relationships with non‐human nature may be recognised into the future. The decision in respect of the Whanganui River in Aotearoa/New Zealand, although not a legal precedent, has resulted in a new and vital Māori/Pākehā legal arrangement, which, in addressing the injustices of the country's colonial history, may also address environmental challenges such as resource exploitation. Since colonisation in 1840, the Māori of the Whanganui River have been fighting to assert their rights in relation to the river. The 1840 Treaty of Waitangi, made between Māori chiefs and British colonisers as the basis of future governance in Aotearoa/New Zealand, was flawed due to differences between the Māori and English versions of the Treaty. Conflicting expectations regarding the constitution and administration of “law” emerged, as did incompatibilities between Māori and English ontologies, particularly involving interactions between humans and (non‐human) nature. In 1975, a tribunal was established to resolve Māori grievances regarding application of the principles of the Waitangi Treaty. In 1999, the Tribunal settled Claim 167 (known as Wai 167, after the Tribunal), recognising Māori ownership of the Whanganui River. Subsequent negotiations resulted in declaration of the river's legal personhood; the enacting legislation was passed on 20 March 2017. An association of place‐based law and the dominant legal system has been instigated. This paper explores how this less anthropocentric approach, in an era commonly called the “Anthropocene” due to the influence of humans on planet Earth, has a critical role to play in environmental management, particularly in relation to water.