'Nature as a sentient being: Can rivers be legal persons?' by Asanka Edirisinghe and Sandie Suchet‐Pearson in (2024) Review of European, Comparative & International Environmental Law comments
The concept of ‘legal personhood and rights of rivers’ has developed as an alternative to anthropocentric legal frameworks that focus only on the instrumental values of rivers. Obtaining legal personhood marks a key milestone in legal recognition that could provide for the protection of rivers for more than the instrumental values that they hold. However, who could be considered legal persons is the subject of widespread debate in Western jurisprudence. Legalists hold that anything and anyone can be a legal person while Realists believe that a legal person is defined by certain attributes held only by certain categories of persons. One of the main arguments against the personhood of rivers raised by Realists is that rivers are not sentient beings and, consequently, they are incapable of holding the status of a legal person. The idea that nature is not a sentient being is mainly a Western construct. This research analyses the theory of legal personhood to determine whether rivers can and should be legal persons. It challenges the Realist claim that rivers cannot be legal persons because they lack sentience, drawing on Indigenous Vedda ontologies in Sri Lanka and Aboriginal worldviews from the continent now called Australia. The authors argue that a pluralistic approach to legal personhood is crucial in recognising and valuing our hyperconnected world, preventing categorisation, homogenisation and colonisation of ontologies and addressing sustainability challenges surrounding rivers. The research contributes to the existing scholarly work by defending the concept of legal personhood for rivers within a more pluralistic legal philosophy and addressing one of its major criticisms.
According to Western jurisprudence, the law is for persons, and therefore, in a literal sense, if rivers are not legal persons, the law is not for them. Who can be considered a person in Western law is the subject of widespread debate and not all scholars and philosophers agree that rivers can or should be legal persons. Two primary schools of Western academic legal thought, namely, the Legalist and Realist schools, analyse the concept of legal personhood. The Legalist school adopts a more flexible perspective, considering a broader range of entities eligible for legal personhood. On the other hand, the Realist school adopts a more restrictive viewpoint, limiting legal personhood only to those entities who possess specific predetermined characteristics. This article analyses the theory of legal personhood to address the overarching research question of whether rivers can and should be legal persons. By drawing on Indigenous ontologies from Sri Lanka and the continent now called Australia, the authors challenge a key argument raised by the Realists against granting legal personhood to rivers, which is based on the notion that rivers are non-sentient beings. The authors argue that the notion of legal personhood must be viewed beyond the narrow confines of Western jurisprudence to avoid categorisation, homogenisation and colonisation of a hyperconnected world and to enable more pluralistic and just understandings of human–river relationships to underpin sustainability efforts.
This article draws on three methodological approaches: the traditional ‘blackletter’ doctrinal approach to legal research, socio-legal research and international comparative research. The blackletter approach analyses the meaning and interpretation of the doctrine of legal personhood, referring to primary and secondary sources that are normative and/or authoritative. The socio-legal research complements and deepens the doctrinal research to ensure a rich understanding of the doctrine of legal personhood in the context of Sri Lanka. The research uses qualitative data gathered through semi-structured interviews conducted in 2023 with 32 key stakeholders in Sri Lanka, including Indigenous Vedda elders in Vedda village in Dambana, community elders in Perimiyankulama near Malwathu Oya River, environmental lawyers and scholars with expertise in Sri Lankan culture, tradition and religious practice. International comparative research illustrates the contrast between mainstream Western perceptions of rivers as objects or resources and the recognition of the sentience, agency and wisdom of rivers by many Indigenous communities. Drawing on examples from Sri Lanka and Australia due to the authors' expertise and the synergies between the places, it becomes evident that Indigenous communities in both countries hold profound relational values that are often suppressed and overshadowed by the impact of colonial Western worldviews and legal systems.
In making our case, Section 2 introduces the notion of legal personhood. Section 3 examines the importance of attaching legal personhood to rivers. Section 4 analyses who is considered a legal person and explains the Legalist and Realist approaches to legal personhood. Section 5 justifies the recognition of rivers as legal persons in light of the Legalist approach to legal personhood and Earth jurisprudence. Section 6 challenges the Realist argument that rivers are not legal persons because they are not sentient beings. It discusses Indigenous Vedda worldviews in Sri Lanka and Aboriginal worldviews in Australia, which argue that rivers are imbued with sentience. The final section of the article lays down the conclusions.
