'Signs of Invisibility: Nonrecognition of Natural Environments as Persons in International and Domestic Law’ in International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique comments
Recognition of legal personhood in contemporary international and domestic law is a matter of signs. Those signs identify the existence of the legal person: human animals, corporations and states. They also identify facets of that personhood that situate the signified entities within webs of rights and responsibilities. Entities that are not legal persons lack agency and are thus invisible. They may be acted on but, absent the personhood that is communicated through a range of indicia and shapes both legal and popular understanding of powers and obligations, they lack standing in judicial fora. They are signified as entities that are the subjects of action by legal persons, for example exploitation through rights regarding natural resources or commodification of ‘wild’, companion and other non-human animals. They are also signified as members of a diverse class of non-persons such as ‘nature’ and ‘the environment’. This article explores the consequences of law’s signification of personhood and the natural world before asking whether we both should and could recognise domains such as specific rivers, forests or even Antarctica as a type of legal person. Recognition might acknowledge the salience of nature in the ontologies of colonised First Peoples. It might also underpin a global response to climate change as the existential crisis of the Anthropocene. In understanding law as a matter of signifiers and syntaxes the article cautions that ostensible recognition of some domains as persons has been aspirational rather than substantive, with observers misreading the sign as necessarily transforming power relationships. The article also cautions that personhood for nature or particular domains may be contrary to the self-determination of colonised First Peoples.
It continues
Law is an empire of signs, indicia of what is/is not permitted or required and signifiers of what is often characterised as personhood or identity. It is a realm in which observers or actors sometimes conflate the signifier with what is signified, for example misreading tokens of legal status and individuation such as passports, badges and identity numbers as being a citizen or an official. It is also a realm in which there is frequent reference to ‘identity’ and ‘personhood’, key elements of a legal syntax and of public/private administration but potentially misunderstood by observers who mistake individuation for legal status or by activists who assume that naming—such as a declaration that a specific forest is a legal person—brings into being capability.
This article enhances the rich theoretical literature on legal identity or personhood by considering the legal person as a matter of signifiers. Law’s signification privileges some classes of entities, notably the live human animal as the paradigmatic legal person in contemporary Western law, while serving both to erase other entities and disregard the ontologies of First Peoples. Those ontologies are the social and conceptual foundation of what is sometimes characterised as traditional or even primitive law, a coherent body of enforceable rules in which specific geographical domains are important for the belonging of peoples within a cosmology and within which nature requires respect. Recent theoretical literature has often been preoccupied with questions about extending the personhood of corporations by granting them a range of human rights and about the utility of recognising some classes of machines (robots) and disembodied artificial intelligence as being persons, with a consequent legal existence and rights independent of that of owners, users and manufacturers. That exploration has co-existed with calls for recognising some non-human animals, for example apes, as legal persons and for the enshrinement in constitutions or other law of rights for nature. It has also coincided with a small and often misunderstood (or merely commonly misreported) body of statutes and judicial decisions that specific domains are legal persons, so that their deemed needs must be considered in policy making and that through guardians (typically representative of the particular First Peoples intimately associated with the domain) must be able to litigate against harms that injure or threaten the domain. Most recently advocates have relied on that law in unsuccessful litigation regarding climate change, in other words seeking to force governments to address climate change that is global, attributable to human activity and existential because it has geopolitical impacts and large-scale species loss rather than inconvenience to property owners in Manhattan, Sydney, Venice and other coastal locations. Signifiers and recognition of what they signify have consequences.
This article proceeds in eight parts. The following pages initially discuss legal personhood, paradigmatically the live human animal. That discussion notes that personhood is culturally and temporally contingent, arguing that through a lens of legal semiotics all personhood is a matter of legal constructs and thus contestable. The discussion considers personhood as a matter of status and individuation, in other words the functioning of signifiers in contemporary Western and pre-modern legal systems. The article then turns to personhood for nature, in other words invoked locally yet existing globally, and for specific domains. The discussion draws on work regarding the signification of built environments and on the uneven recognition of First Peoples by settler states in moving towards post-colonial legal systems. Imperialism involves processes of naming and claiming. The discussion seeks to encourage discourse regarding signs and justice by asking whether Antarctica might be usefully regarded as a discrete legal person rather than weakly protected commons, underpinning a global response to climate change. In understanding law as a matter of signifiers and syntaxes the article cautions that ostensible recognition of some domains as persons has been aspirational rather than substantive, with observers misreading the sign as necessarily transforming power relationships. The article also cautions that personhood for nature or particular domains may be contrary to the self-determination of colonised First Peoples.
