'Relational personhood: a conception of legal personhood with insights from disability rights and environmental law' by Anna Arstein-Kerslake, Erin O’Donnell, Rosemary Kayess and Joanne Watson in (2021) Griffith Law Review comments -
People with disability have demanded the recognition of full legal personhood in order to realise their rights and to overcome dominance and oppression. Legal personhood is also being claimed for similar reasons for natural entities, including rivers, forests, and mountains. However, the prevailing neo-liberal understanding of legal personhood relies on the individual exercising personhood independently. This may not be enough to secure the interests and realise the rights of people with disability, natural entities, or other cohorts that are not experiencing a wealth of power and privilege. In this article, we attempt to overcome centuries of (white, able-bodied, cis gender) male centric theory of legal personhood. We reject the dominant conceptions of personhood from liberal political theory that emphasise an atomistic, isolated individual making independent decisions. Instead, we argue for a different conception of legal personhood – relational personhood. We use insights from feminist theories of relational autonomy as well as the experience of disability to help us re-conceptualise personhood to embrace exercising autonomy through a collaborative process of acknowledging, interpreting and acting on an individual’s expressions of will and preference. We then apply this new conception to the recognition of legal personhood in nature and explore how natural entities can exercise their personhood via their relationships with humans – and, in particular, Indigenous Peoples, who have developed close relationships with natural entities over centuries. Our aim is to demonstrate the utility of a conception of legal personhood that encompass the reality of the interdependence of all individuals and entities.
There is a more nuanced approach in 'From Rights to Responsibilities using Legal Personhood and Guardianship for Rivers' by Catherine J Iorns Magallanes in B Martin, L Te Aho and M Humphries-Kil (eds)ResponsAbility: Law and Governance for Living Well with the Earth (Routledge, 2019) 216-239, which states -
This chapter surveys a range of examples whereby rivers have been given legal personality or similar rights, seemingly in an effort to uphold human responsibility to better protect them from degradation. The examples are first drawn from the United States of America, where nature has been given a range of rights, in order to illustrate key rights of nature arguments. Then four examples of rivers in different countries are addressed: the Vilcabamba River in Ecuador, the Whanganui River in Aotearoa New Zealand, the Ganges River in India, and the Atrato River in Columbia. Two of these examples emphasise the rights of the rivers and two emphasise duties and responsibilities, while three of them create a separate legal personality for the river. The tools used to protect each of these rivers are slightly different from each other and they illustrate interesting comparisons and likely lessons, even though they are still very new.
A key lesson from this difference is that rights – including rights for nature – are useful tools, but also, that collective responsibility may be even more useful. All of the examples in this paper can help our societies and their legal systems evolve to protect nature more effectively and engender a greater appreciation of its importance. But explicit frameworks and tools of collective responsibility may provide a clearer path to the paradigm shift that is necessary to better respect humans’ role within nature and ecosystems within which we live. Any framework or tool chosen needs to support a paradigm of collective responsibility and should be carefully designed and worded so as not to obscure or distract from that.
'Property in Indian Water: A Future Transformed by Climate' by Paul T Babie in (2019) 15 Amity Law Review 1-17 comments
This article, which contains four parts, explores the ways in which climate change challenges the nature of property in Indian water. The first briefly recounts the ways in which control over surface freshwater is currently achieved in India. It focuses on the use of property as a concept for use in determining allocation, identifying a continuum of approaches to allocating property in water. Yet, because such allocation is nothing more than a fragmentation of the water resource in increasingly smaller bundles, the second part explains why doing so will result, ultimately, in the inability of any user to make effective use of the resource, for any purpose. The third part considers two alternatives to property as a means of allocating the use of freshwater found in Indian rivers, one secular, the other sacred. Finally, the article concludes with some brief reflections on the nature of transformative change necessary to achieve a sustainable and inclusive approach to water allocation.
'Constructing legal personhood: corporate law’s legacy' by Michelle Worthington and Peta Spender in (2021) Griffith Law Review comments
Legal personality – its nature and function – has become a topic of renewed interest. In particular, there is increasing interest in extending existing categories of legal personality. While contemporary discussion of legal personality is directed at comparably novel ends, aspects of the discussion are familiar, mirroring broader patterns of thought evident in historical treatments of the subject. Most familiar of all is the pronounced conceptual uncertainty that continues to surround legal personality as a device. This uncertainty may compromise efforts to successfully create and manage new forms of legal person. Proceeding from an understanding of legal personality as function, and the elements of legal personality as the terms of a licence, we explore considerations essential to the effective design of synthetic legal persons, including the need for clarity with respect to immediate purpose, designated legal capacities and the conditions against which the grant of legal personality might be made by the State. Drawing on the historical example of the corporation as the first truly ‘synthetic’ legal person in Anglo-Australian law we tell a cautionary tale about the conferral of synthetic legal personality, contrasting the flawed design of the corporate device with that of new ‘environmental’ devices, including New Zealand’s Whanganui River. .
