Re-imagining Rights

If a corporation can be a legal person, why can't a river?

The Whanganui River, a legal person. Courtesy Wikimedia Commons

In 2007, Canadian intellectual, politician, and prime ministerial candidate Michael Ignatieff published The Rights Revolution. The book is an exploration of the issues currently boiling in the stew now generally referred to as “identity politics.” It’s no accident that the axis of the fight between the far right and mainstream politics in Canada, the U.S, and Europe is individual and collective rights—how we slice and dice them and define what counts as a person (in the case of abortion/women’s rights), an identifiable group (black people, indigenous people, gays, trans, and next…?), and what our social and personal obligations are towards these new kinds of person. One of Ignatieff’s conclusions is that it’s impossible to separate questions of rights from politics, and as a believer in democracy, that to him means that all such distinctions are ultimately to be discussed, debated, and decided upon by our society as a whole.

The issues addressed in The Rights Revolution are humanist to the core; even the far right is humanist in that its interests are human-oriented. You could see the global political foment over the past half-century entirely through a humanist lens and pretty much everything resolves into clear focus: do China, Iran, and Russia have sovereign control over the human rights of their citizens? Is there instead a universal standard, and does the rest of the world have the right to impose it? Within such a standard, how many types and classes of humans do we recognize? Is our online data part of our extended Self, and should we therefore have rights over it? When the Rapture of the Nerds happens and we all ascend to digital heaven, will our digital selves have rights? Should a conscious AI be considered a person and therefore have rights?

Issues of identity and rights matter because rights are about power. Rights draw clear lines around people and place limits on who gets to mess with them. For free speech absolutists, placing limits on online defamation is wrong because everyone should be equal under the law; for the LGBT2S community, you only have a right if you’re able to exercise it, and disproportionate power of speech owned by hostile billionaires lets them use their free speech to smother yours. So rights are not about fine logical distinctions, rights are about control.

While everybody’s attention has been on this humanist turmoil, a different rights revolution has quietly snowballed. Twenty years ago I would have bet that the greatest political traction would be found in the sentientist movement, which recognizes all sentient animals as possessing rights. Alasdair Cochrane’s Sentientist Politics is a great introduction to this idea and its implications. I’d have thought animal rights, so ferociously defended by groups like PETA, would have dominated legal thinking outside of the humanist sphere. Instead, a surprising thing has happened: the most exciting developments in recent years have come from the Rights of Nature movement.

A startling win in Ireland this week highlights just how far this revolution has come.

Constitutional Rights of Nature

In 2008 Ecuador was the first nation in the world to enshrine the rights of Nature in its constitution. —This is far from the most amazing thing about that constitution, by the way; it also enshrines rights to gender expression and food security. In retrospect, it seems ridiculous for any country not to provide its citizens a constitutional right to food. But I digress.

Recognizing that Nature (capital-N, in the abstract sense) has rights is very different from recognizing them for any given natural system. It’s also a toothless provision if there is no way for such a system to exercise its rights. As with the free speech example above, having a right on paper means nothing if you can’t apply it.

This is where things get interesting. In 2017 New Zealand passed a law recognizing the legal personhood of the Whanganui River. This has taken 140 years of sustained effort by the Maori, who consider the river to be a place where they can meet with their ancestors. They now act as trustees of the Whanganui and must be consulted in any industrial or urban development that affects it.

Once again, this might seem like an interesting oddity, an exception that proves the rule… Except that in 2019 Bangladesh granted all its rivers legal personhood. This is a global movement; Lake Erie and Canada’s Magpie River are now legal persons, for example.

Spearheading this effort is an organization called the Center for Democratic and Environmental Rights. Back in October, Mari Margil, CDER’s executive director, and Thomas Linzey testified before the Irish Joint Committee on Environment and Climate Action, and with their help the Committee has now recommended that Ireland follow Ecuador’s lead and enshrine the rights of nature in its constitution.

This is far from an easy fight. The Chilean constitutional referendum, held back in the summer, also had provisions for protecting natural systems. Unfortunately, the people (with the help of intense industry lobbying) found the current draft too radical and turned it down. There’ll be another referendum; we’ll see if the rights of nature are included in that version.

A lot is at stake here; nothing less than humanity’s relationship with the natural world is on the table. This is the nonplus ultra of post-colonialist legislation—it’s not just sentientist politics, but a politics of, by, and for nonsentient and even nonliving things.

Full disclosure: I am deeply involved in this movement and am working with Mari Margil and Thomas Gooch on some real-world projects. I was consulted, for example, on the wording of the Declaration of the Rights of the Moon. If you’ve followed my career, you’ll know that I rang this bell loudly in 2000 with my very first novel, Ventus, in which I describe a world where natural systems have full rights and humans have none. Questions of how we carve the world into people and non-people appear in everything from the Diadem Swans of Ventus to the Mighty Brick and the litigious box tulips of Virga. And, of course, Stealing Worlds is entirely about autonomous nature.

The Fox Guarding the Henhouse

The question we’re trying to answer with rights in general, and with rights of nature in particular, is this:

How can humanity protect the inhabitants of the Earth and its physical environment when we ourselves are the problem?

Within the sphere of human activities, enforceable rights are the answer. This is Michael Ignatieff’s Rights Revolution, and it’s also the Rights of Nature revolution; these are great things. Mari, Thomas, CDER and indigenous powers around the world are working on the legislative and governance mechanisms to make the natural world’s side of the revolution successful. Yet, there is still something of the fox guarding the henhouse to that effort. To restate the issue: what can humanity do to preserve the natural world when human doing is itself the problem?

The answer:

Create an autonomous, distributed resource management system that acts in the interest of ecosystems, species (including humans), and natural resources.

Inspired by philosopher Jane Bennett, I’ve revived the old English word deodand to describe the new kind of agent that solves the fox-henhouse problem. In old English law, a deodand was a nonliving object that had caused injury or death and was temporarily assigned personhood so that it could be tried. This kind of scenario actually exists right now—what if somebody drowns in the Magpie River? As a person, is it liable? More important, though, is that humans have an inherent conflict of interest when they are asked to act as trustees for natural resources that might be exploitable. We are the fox guarding the henhouse. Rights for Nature’s solution to this problem is to partially remove decisions about resource use from individual humans or specific groups of humans and place them in the hands of an automaton: the law.

Laws and institutions are (partially) non-human agents that we deploy to solve just this kind of problem. For our generation, it’s highly likely that rights of nature will continue to spread and be increasingly buttressed by well-designed governmental processes. But since our institutions are increasingly administered by AI, so too will these processes. The result, within our lifetimes, will be the existence of the entities I describe in Stealing Worlds:

A deodand is an autonomous Collective Intelligence application that uses smart contracts to maximize some “stock” representing the health of a particular natural system.

In other words, deodands are AIs that think they are some particular river, forest, pod of whales, or species of krill and act in “their” own interests. This is the real robot rebellion, and it is the natural and inevitable outcome of the continued growth of both AI technology and the Rights of Nature movement.

If you’re worldbuilding for a piece of true 21st-century science fiction, this tension in AI and AGI has to be taken into account. There will be AIs designed to maximize the efficiency with which we exploit natural resources, but we will also create AIs that are advocates for those resources. I call these AIs actants. For the planet to continue to be habitable, the actants have to win the power struggle.

I define actants as self-administering resources. An actant typically (though not always) represents some Common Pool Resource. CPRs are resource systems whose boundaries make it difficult or impossible to restrict their use; fisheries are an example of a common pool resource. There is a robust legal framework for the administration of CPRs (Garrett Hardin’s fallacious ‘tragedy of the commons’ notwithstanding). An entirely new economic system is possible when the means of production own themselves… but I’ll talk about that in a later post. The takeaway here is that now that we’ve started down the road of granting personhood to natural systems, the logical endpoint is the self-governance of those systems, either through legal/institutional structures, or AI.

Rights Bundles and Identity in General

If you’re a homeowner, do you own the mineral rights under your house? How about the flyover rights? You might think that property rights are monolithic and absolute (many people do) but all ownership comes with compromises. This is the third rights revolution that I think is happening right now (after human rights and natural rights). I’m investigating this idea, but from the standpoint of foresight practice, we’re still at the stage of weak signals of change here. The strongest of those signals is the John Deere ‘right to repair’ controversy. Right to Repair is the thin edge of a wedge; my pal (and co-author of our Complete Idiot’s Guide to Publishing Science Fiction) Cory Doctorow is following it more closely than I. He and I might have diverging opinions on the ultimate end-game it represents, but that’s fine. My take on it is that the Internet of Things gives us the ability to track the lifecycle of every part of every device and object we manufacture, mine, or grow; the need to avoid resource overshoot (Kate Raworth’s doughnut economics) means we have to do this tracking; but companies and rights owners are heavily incentivized to split every object up into as many separate entities, with separate assignable rights, as possible. Each division represents an opportunity for further value extraction, as John Deere realized.

This means that for nonhuman things, in the (near) future, the unitary object will dissolve just as for humans, the unitary male/female human entity is dissolving. While TERFs rail at the ambiguities of trans people, in the background the same basic process is happening to their phones, automobiles (Tesla can remotely shut down your car even if you supposedly own it), and soon, everything else. Two possible outcomes of this process are

1. The Rights Economy. I first described this in my 2002 novel Permanence. In the RE, everything you ‘own’ is actually rented, and all its parts are divided into separate entities whose rights you have to pay for separately in ongoing microtransactions. In this world, there are only owners and serfs, and the owners are the people who get to define what a thing, or person, is.

2. The Frameworlds, which I describe in Stealing Worlds. The Frames are a system of self-owned objects that are being made possible by the Rights of Nature and modern Commons (open-source) movements. Actants, deodands, and an ongoing process of negotiated rights bundles mean that ‘ownership’ is a thing of the past not because everyone’s a renter, but because everyone’s a stakeholder, a part-owner. In this world, there are no serfs, but everyone is ultimately accountable to the limitations of Raworth’s doughnut.

The contrast between these futures couldn’t be more stark. They are, of course, the polar extremes of a future that will certainly land somewhere in the contested middle. What this framing does, though (and the reason we’ve gone down this rabbit hole) is it allows us to step out of the binary arguments of the humanist rights debate (Left-political vs. Right-political) and analyze our situation along an entirely new dimension. On this third, post-humanist axis, our concerns are just part of the larger worries of the Earth as a whole.

The Earth is the ultimate owner; no matter how arrogant humanity may be, we are just renting the place. And when the bills come due (as they have started to with this year’s unprecedented natural disasters), it won’t matter whether you’re on the left or the right. Our best course forward is to acknowledge the power of this larger system and our obligations to our co-inhabitants on the planet, first legislatively, and ultimately, in a post-humanist redesign of our economics and politics.

Back to (a new) Earth

These futures are speculative; the reality is that CDER has succeeded in putting the Rights of Nature on the constitutional agenda for Ireland, one of the world’s most advanced economies, a member of the EU, and a former participant in Europe’s unbridled colonialist adventures. This is a landmark achievement and it fills me with hope that we can discuss and deliberate all our rights as Ignatieff would have us do; and, just possibly, redress some of the mistakes of our past.

Congratulations, Mari and team!