Ecozoic Cafe

The November 16, 2021 issue of The Atlantic contained an article by the journalist and Harvard University American History professor Jill Lepore titled “The Elephant Who Could Be a Person.” According to the article’s lede, “The most important animal-rights case of the 21st century revolves around an unlikely subject.” The case involved an animal rights organization arguing that a female Asian elephant named Happy was being illegally detained by the Bronx Zoo. Because Happy lived most of her life in solitary confinement, an unfortunate situation for a species that is extremely social, the Nonhuman Rights Group claimed she had a right to habeas corpus. If Happy were to be freed from the zoo, she would be taken to a sanctuary to live with other elephants.

The NRG’s concern was discounted by the Wildlife Conservation Society which operates the zoo and has insisted that the elephant is well taken care of. Central to the case was the question of whether Happy should be considered a person. The NRG argued for her personhood because in 2005 she passed the mirror recognition test (a method for attempting to determine the presence of physiological and cognitive self-awareness) where she touched an X painted on her forehead. This touching action was considered to be evidence of self awareness and therefore a sense of personhood.

For Lepore, the case has huge implications for fighting climate change and preserving biodiversity:

But can an elephant be a person? No case like this has ever reached so high a court, anywhere in the English-speaking world. The elephant suit might be an edge case, but it is by no means a frivolous case. In an age of mass extinction and climate catastrophe, the questions it raises, about the relationship between humans, animals, and the natural world, concern the future of life on Earth, questions that much existing law is catastrophically ill-equipped to address.

Lepore believes that in the US the legal roots of these questions go very deep indeed: “The U.S. Constitution, written in Philadelphia in 1787, rests on a chain-of-being conception of personhood. The men who wrote the Constitution not only made no provision for animals or lakes or any part of the natural world . . . ” She continues

In the wild, the elephant is a keystone species; if it falls, its entire ecosystem can collapse. In the courts, elephant personhood is a keystone argument, the argument on which all other animal-rights and even environmental arguments could conceivably depend. Elephants, the largest land mammal, are among the most intelligent, long lived, and sentient of nonhuman animals, and, arguable, they’re the most sympathetic.

Last June, Happy’s legal team lost their case in a 5-2 decision. Writing for the majority, Chief Judge Janet DiFiore said that “While no one disputes that elephants are intelligent beings deserving of proper care and compassion . . . we reject petitioner’s arguments that it is entitled to seek the remedy of habeas corpus on Happy’s behalf. Habeas corpus is a procedural vehicle intended to secure the liberty rights of human beings who are unlawfully restrained, not nonhuman animals.” But both dissenting opinions found much merit in NRG’s position, with one of the dissenting judges, Judge Rowan Wilson, writing “When the majority answers, ‘No, animals cannot have rights,’ I worry for that animal, but I worry even more greatly about how that answer denies and denigrates the human capacity for understanding, empathy and compassion.” Even one of the judges who concurred with the majority wrote that the case presented “a deep dilemma of ethics and policy that demands our attention. The issue of whether a nonhuman animal has a fundamental right to liberty protected by the writ of habeas corpus is profound and far-reaching. Ultimately we will not be able to ignore it.”

If we want to consider an elephant, or any other animal for that matter, as a person, we need to begin with some definition of personhood. The Oxford Dictionary of Philosophy offers a list of the “central phenomena of personhood; rationality, command of language, self-consciousness, control or agency, and moral worth or title to respect, . . .” In Happy’s court case, the majority agreed that the elephant was self-aware and intelligent, but as a nonhuman it was not regarded to be in the same legal category as human persons. In so doing, the court’s majority followed in what appears to be a generally accepted legal definition personhood. According to the Oxford Dictionary of Law, a legal person “‘is typically defined as a being, entity, or unit which can bear legal rights and duties . . . ” This definition goes on to describe different types of “beings, entities, or units” which are considered legal persons, but also mentions one major exception: “By contrast animals, it is generally said, are unable to assume any legal rights: they have neither the capacity for rights nor the competence to enter personally into legal relations (which can only be had by persons).”

Another term appearing in the Happy court case was intelligence, primarily because Happy’s legal advocates, the NRG, used the mirror recognition test to provide evidence of Happy’s sense of self-consciousness. But the mirror recognition test is not without its critics. As a test used to show that humans were almost universally able to pass a mirror-based self-recognition test by 24 months of age, recent research has shown that the test is successful with children from Western nations, but not so much with children from non-Western nations. Similarly, the test has been successful with some elephants but not others, and a total failure with other species. Reporting his research findings using the mirror test with elephants, Joshua Plotnik believes that “the mark test can be difficult to apply across species because it assumes that a particular animal will be interested in something weird on their body.”

Science is only beginning to explore the possibility that nonhuman species are capable of possessing intelligence and personhood. Any effort to identify the presence of cognitive activity in animals needs to avoid using measures that are appropriate for humans but not necessarily for other species. In his article “Animal Intelligence” appearing in the Cambridge Handbook of Intelligence, Thomas Zentall, Professor of Psychology at the University of Kentucky, describes what scientists need to avoid and what to keep in mind in this area of research.

The ability to assess the intelligence of other species has been constrained because it is not always easy to communicate to other species what we require of them. Furthermore, we tend to define the tasks with procedures designed for us rather than for the species in question. The appropriate assessment of animal intelligence is important, however, because it has demonstrated that although the human capacity for intelligent behavior quantitatively surpasses that of other animals, qualitatively it is not as different as we generally believe. Furthermore, the intelligent behavior of other species demonstrates that although language and culture contribute to human intelligence, they are clearly not necessary. 

If Lepore is correct in saying that Happy’s case is the first to have “ever reached so high a court, anywhere in the English-speaking world,” then we have a long way to go in our court systems regarding the legal status of personhood for animals. If we are to develop a definition of legal person which includes nonhuman animals, we need to move beyond the American legal realm and explore what definitions and applications of the term person can be found in other contexts. One approach would be to become more familiar with Indigenous peoples’ more inclusive understanding of personhood that goes beyond the human. For example, in New Zealand, for a Maori tribe, a river or mountain might be an ancestor. This worldview was a significant factor in a court’s decision to grant personhood to the Whanganui River and the forest Te Urewera. Closer to home, Edward Valandra, a Sicangu Lakota (enrolled) from the Rosebud Sioux Reservation and a professor at Native and non-Native colleges and universities, provides a Native American view:

. . . Phil Wambli Nunpa, the Sicangu Lakota Treaty Council’s executive director, . . . explains that “water is alive: we call it mni wiconi, water is life.” That water is alive—and therefore possesses personality or personhood—defines our cultural response to the DAPL [Dakota Access Pipeline]. Our definition challenges the West’s anthropocentrism, which accords person/peoplehood only to humans. Hence, the Western way of life would both deny and defy water as having personhood. Yet the United States can arbitrarily recognize fictional entities like corporations as legal persons, while denying personhood to humans who become subject to the Thirteenth Amendment’s slavery exception.

I’m hoping that this is a time where attitudes toward our fellow nonhuman beings are profoundly changing. Many people like myself are listening closely to what Indigenous wisdom has to teach. Scientists are exploring ways to understand how nonhumans experience the world and are beginning to interpret outward behaviors as indications of inner states of consciousness and intelligence. Two books about these efforts are Are We Smart Enough to Know How Smart Animals Are? by Frans de Waal and An Immense World: How Animal Senses Reveal the Hidden Realms Around Us by Ed Yong. (Dog lovers might enjoy Inside of a Dog: What Dogs See, Smell, and Know by Alexandra Horowitz.) Western Christians are beginning to see helpful developments within Christian theology. See for example, Ask the Beasts: Darwin and the Love of God, by Elizabeth Johnson. In an article titled “We humans need to open our minds to the personhood of nonhuman animals,” Franciscan Fr. Daniel P. Horan, director of the Center for Spirituality and professor of philosophy, religious studies and theology at Saint Mary’s College in Notre Dame, Indiana, writes

For so much of our modern human history, we have presumed our absolute uniqueness as a species, denying the possibility of intelligence, emotion, moral reasoning, relationship building, and even kinds of religious experience for nonhuman animals. We simply assume that other creatures are, as René Descartes argued in the early 17th century, mere fleshy machines that only simulate feelings.

It doesn’t take much effort to see how such a rigid anthropocentrism, what the British moral theologian David Clough has called “human separatism,” has contributed to our abominable treatment of nonhuman animals over the years — from hunting to extinction and factory farming, to scientific experimentation, to circuses and zoos.

Regardless of whether the United States courts grant some nonhuman animals legal rights . . ., I believe we humans need to adjust our sense of the more-than-human world.

As we saw in Happy’s case, Judge Rowan Wilson was concerned that the court’s denial of habeas corpus for Happy denigrated “the human capacity for understanding, empathy and compassion.” Apparently, arguing in US courts for the legal personhood of animals is not going to succeed in the foreseeable future. But we can individually and as a society continue to develop our intellectual, moral, and spiritual comprehension of animals’ inner lives. Of course, artists and writers have long recognized animals as vital presences. See for example James Wright’s extraordinary poem “A Blessing.”

PS: Highly recommended: The Elephant Whisperers which recently won the Oscar for Best Documentary Short Film, currently streaming on Netflix.

Sources

https://www.theatlantic.com/ideas/archive/2021/11/happy-elephant-bronx-zoo-nhrp-lawsuit/620672/ https://www.reuters.com/world/us/happy-elephant-is-denied-personhood-stay-bronx-zoo-2022-06-14/
https://www.nytimes.com/2022/06/14/nyregion/happy-elephant-animal-rights.html
https://www.scientificamerican.com/article/kids-and-animals-who-fail-classic-mirror/
https://nonprofitquarterly.org/environmental-personhood-a-radical-approach-to-climate-justice/
https://www.theguardian.com/world/2017/mar/21/ganges-and-yamuna-rivers-granted-same-legal-rights-as-human-beings
https://www.ncronline.org/news/opinion/we-humans-need-open-our-minds-personhood-nonhuman-animals

“Enough about Human Rights!
What about Whale Rights? What about Snail Rights?
What about Seal Rights? What about Eel Rights?
What about Coon Rights? What about Loon Rights?
What about Wolf Rights? What about, what about, what about
What about Moose Rights? What about Goose Rights?
What about Lark Rights? What about Shark Rights?
What about Fox Rights? What about Ox Rights?
What about Mole Rights? What about, what about, what about
What about Goat Rights? What about Stoat Rights?
What about Pike Rights? What about Shrike Rights?
What about Hare Rights? What about Bear Rights?
What about Plant Rights?”
~ Moondog

Most environmental laws today are meant to protect the well-being of humans. Their purpose is to prevent the degradation of ecological systems and resulting threats to the public health of nearby communities. But according to the Community Environmental Legal Defense Fund (CELDF), environmental laws like the Clean Air Act, the Clean Water Act, and similar state laws “legalize environmental harms. They regulate how much pollution or destruction of nature can occur under law. Rather than preventing pollution and environmental destruction, our environmental laws allow and permit it.” What is needed, therefore, are new kinds of laws that do a better job at recognizing the interconnectedness between humans and nature. Thomas Berry and others have called for an “earth jurisprudence” or “earth law” where nature is granted legal standing equal to humans. According to the CELDF, “When we talk about the Rights of Nature, it means recognizing that ecosystems and natural communities are not merely property that can be owned. Rather, they are entities that have an independent and inalienable right to exist and flourish.” In the US, Tamaqua Borough, Schuylkill County, Pennsylvania, was the first community to enact a rights of nature law in 2006; its action was followed by dozens of other communities. In 2010, Pittsburgh, Pennsylvania, became the first US city to to grant legal status to the rights of nature. However, the rights of nature law movement hasn’t always met with success.

In 2018, a rights of nature law was enacted by the White Earth Band of Ojibwe, of the Chippewa Nation. The law was meant to protect a species of wild rice growing in the Great Lakes region. The Anishinaabeg (also known as Ojibwe or Chippewa) regard this wild rice or manoomin (the “good berry”) as a spiritual and cultural staple as well as a culinary one. But since its enactment, the law has been entangled in a series of court cases involving the White Earth Tribal Court and the federal Eighth Circuit of Appeals. The plaintiff was the manoonim and it was represented in court by the White Earth Band of Ojibwe; the defendant was Minnesota’s Department of Natural Resources. In 2021, the DNR had issued a permit for the Enbridge corporation to construct the Line 3 tar sands oil pipeline. While laying the pipeline, Enbridge crews punctured an underground aquifer in Clearwater County, causing uncontrolled flows of groundwater which posed a threat to the healthy growth of manoonim. Complicating the case was the issue of tribal versus state jurisdiction. The break occurred outside the White Earth Indian Reservation but it clearly had repercussions for manoomin. The DNR appealed to the Eighth Circuit as part of the agency’s ongoing fight to keep a tribal court from considering whether the state’s issuance of the water permit to Enbridge violated the legal rights of manoomin and the treaty rights of White Earth tribal members. In September 2021 the Eighth Circuit ruled that the White Earth Band of Ojibwe Court of Appeals had jurisdiction, but in March 2022 the Ojibwe court, citing federal case law, decided against the plaintiff because the break had happened outside the reservation.

In November 2020, a rights of nature law in the US was overwhelmingly adopted by voters in Orange County, Florida. In April 2021, the law was put to the test in a legal action. The plaintiffs were five waterways that were threatened by a developer’s proposal for commercial and residential development. Representing the waterways were two organizations, Florida Rights of Nature Network and Speak Up Wekiva (a Muskogee word meaning “spring of water”). In July 2022, a judge struck down Orange County’s rights of nature law citing Florida’s 2020 Clean Waters Act and its provision that bans “local governments from recognizing or granting certain legal rights to the natural environment or granting such rights relating to the natural environment to a person or political subdivision.” Clearly in Florida (as in many other states and localities in the US), developers enjoy more government support than environmentalists.

The status of rights of nature laws will continue to be a contentious issue in the courtrooms and state and local governments of our country. At the same time, we will continue to see Native Americans (in addition to numerous environmental protection organizations) advocating for the rights of nature. The CELDF believes that indigenous people need to be involved.

Aboriginal nations and communities retain sovereignty and knowledge over the natural ecosystems they have evolved with. To recognize and follow the natural laws of nature necessitates the elevation particularly of the Traditional Knowledge of local indigenous communities.

While this is a new area of law, it’s a growing global movement. According to Cary L. Biron of Reuters, “Lawmakers have been implementing rights of nature, which are rooted in indigenous thought, through laws, judicial decisions, constitutional amendments, and U.N. resolutions in countries including Ecuador, Bangladesh, Uganda, and Australia.”

To understand the importance of this movement is to recognize that the rights of nature can play a significant part in our efforts to deal with the climate crisis. In a 1972 law review article titled “Should Trees Have Standing? – Toward Legal Rights for Natural Objects”, Christopher Stone, a Professor of Law at the University of Southern California, argued that “nature should have its own voice” and should be considered as a plaintiff in any court case against parties threatening its well being. By placing nature and humanity on an equal legal footing, the human-nature relationship would be less one of subject – object, owner – owned, and more of a relationship of equals within an earth community. In the concluding section of his article, Stone wrote:

Scientists have been warning of the crises the earth and all humans on it face if we do not change our ways – radically . . .

A radical new conception of man’s relationship to the rest of nature would not only be a step towards solving the material planetary problems; there are strong reasons for such a changed consciousness from the point of making us far better humans. . . . To be able to get away from the view that Nature is a collection of useful senseless objects is . . . deeply involved in the development of our abilities to love – or, if that is putting it too strongly, to be able to reach a heightened awareness of our own, and others’ capacities in their mutual interplay. To do so, we have to give up some psychic investment in our sense of separateness and specialness in the universe.

Written fifty years ago, the article still remains highly relevant, even more so given the dramatic increase, in Stone’s words, of “material planetary problems.”

Sources

• Moondog Wikipedia article: https://en.wikipedia.org/wiki/Moondog. During the 60’s, I occasionally came across a man dressed up in very strange garb standing on a street in midtown Manhattan. He was a remarkable presence, even for New York.
• CELDF website: https://celdf.org/rights-of-nature/
• Earth Jurisprudence Wikipedia article: https://en.wikipedia.org/wiki/Earth_jurisprudence
• CELDF rights of nature timeline: https://celdf.org/rights-of-nature/timeline/
• Center for Democratic and Environmental Rights (CDER) – White Earth Tribal Law: Recognizing the Rights of Manoomin: https://www.centerforenvironmentalrights.org/rights-of-manoomin
• CDER: https://www.centerforenvironmentalrights.org/news/press-release-federal-appeals-court-denies-state-of-minnesotas-bid-to-take-rights-of-nature-case-away-from-tribal-court
• Turtle Talk – “The Leading Blog on Legal Issues in Indian Country”: White Earth Ojibwe Appellate Court Dismissed Manoomin Suit against Minnesota DNR: https://turtletalk.blog/2022/03/21/white-earth-ojibwe-appellate-court-dismissed-manoomin-suit-against-minnesota-dnr/
• Bioneers website: Orange County, FL, “Voters Overwhelmingly Approve ‘Rights of Nature’ Initiative”: https://bioneers.org/orange-county-fl-voters-overwhelmingly-approve-rights-of-nature-initiative/
• WUSF Public Media – “Judge strikes down ‘rights of nature’ charter amendment”: https://wusfnews.wusf.usf.edu/environment/2022-07-12/judge-strikes-down-rights-of-nature-charter-amendment
• Christian Science Monitor – “More nations pledge laws to protect the environment”: https://www.csmonitor.com/World/2020/1002/More-nations-pledge-laws-to-protect-the-environment
• Southern California Law review – “Should Trees Have Standing? – Toward Legal Rights for Natural Objects”: https://iseethics.files.wordpress.com/2013/02/stone-christopher-d-should-trees-have-standing.pdf

Tomorrow, December 21, the shortest day of the year – the winter solstice, will be observed around the world in a variety of ways. Some examples are provided on this page. Clearly some human communities have been and are still so deeply moved by this phenomenon that they have come to mark it with ancient rituals predating modern religions. Remarkable architectural structures created by pre-Christian cultures draw visitors each year, most famously perhaps at Stonehenge but other sites as well like 5,200 year old Newgrange in Ireland (above photo). In past years, people who wished to witness the winter solstice phenomenon from within the Newgrange tomb would be selected by lottery. This year, because of COVID-19 restrictions, this site will stay closed but available for archeological research.

Indigenous peoples observe winter solstice as another way of maintaining their close connection to the rhythms of nature. In this, they have much to teach and guide us as in this page from the NDN Collective. (NDN, a shortening of Native Indian, is sometimes used by Native Americans in the United States to refer to themselves.) American Indian influence on Catholic missionaries can be seen in 18th and 19th century Spanish mission churches in California where sunlight blazes through the churches on winter solstice.

Winter solstice provides the occasion for feasts and festivals like the Korean Dongji. In this winter soltice party (3 minute video) at the University of Michigan School for Environment and Sustainability, the event seems like a blend of winter solstice and Christmas (e.e., students singing “Have yourself a merry little solstice), a convergence many believe to be the reason why Christmas is a late December celebration.

Why do many of us in the postmodern world maintain a fascination with sites like Stonehenge and Newgrange? Or enjoy participating in special events marking the Winter Soltice? For example, The Trustees, (an organization devoted to protecting historic and natural sites in Massachusetts), is offering several such events this year. (Note that several of those events have sold out.) I believe Thomas Berry provides a way of understanding the Winter Soltice’s deeper meaning:

With regard to time and seasons, rituals were established [by “earlier peoples” – Berry’s phrase] to create a consciousness of the moments of cosmological change: the dawn and dusk of the daily sequence of sunlight and darkness, the increase and decline in the phases of the moon , the winter solstice especially in the danger moment of the universe, the period of dark descent; then came the rise into a world of warmth and light and the blossoming of the plants and the birth moment throughout the mammailan world. These moments of change were the moments when the shining forth of the phenomenal world was most evident. Such moments were moments of grace, moments when the sacred world communicated itself with special clarity to the world of the human. [TB, 53]

So tomorrow celebrate this moment of grace. Light a candle or two, pour a drink of your choice, and wish a merry solstice to your dear ones and the rest of the earth community! (And try some of the suggestions offered by the NDN Collective.)

On October 4th, a group of leading figures from a number of religious traditions sent an urgent message to world leaders who would be gathering for the 26th UN Climate Change Conference of the Parties (COP26) in Glasgow during October 31 – November 12, 2021. The Executive Summary of a Joint Appeal began with the following:

Today, after months of dialogue between faith leaders and scientists, we come together united to raise awareness of the unprecedented challenges that threaten our beautiful common home. Our faiths and spiritualities teach a duty to care for the human family and for the environment in which it lives. We are deeply interdependent with each other and with the natural world. We are not limitless masters of our planet and its resources. . . . We must address these challenges using the knowledge of science and the wisdom of religion. We must think long-term for the sake of the whole of humanity. Now is the time to take transformative action as a common response. [1]

Religious believers are joining others from around the world protesting expansion of fossil fuel industries and demanding commitments and actions from government and business leaders to limit fossil fuel emissions. Theologians and clergy have been writing, teaching, and preaching about the goodness of creation and our obligation to be responsible stewards of the natural world. For example, Catholic theologian Elizabeth Johnson CSJ wrote:

Since the reign of God is especially attentive to the needy and the outcast, Jesus showed a partisanship for suffering people that we can today interpret as extending to encompass the earth and its myriads of distressed species and ecosystems. His ministry reveals a wideness in God’s mercy that includes all creation. [See earlier blog post]

Perhaps the most widely read religious statement on the need for protecting the earth and its atmosphere from further degradation has been Pope Francis’s encyclical Laudato Si’ (Praise Be to You). Subtitled On Care for Our Common Home, the title is taken from Saint Francis’s great hymn praising God for his creation, Canticle of the Sun. In the encyclical, the Pope exhorts his readers to follow the example of the Saint’s love for the created world: “I believe that Saint Francis is the example par excellence of care for the vulnerable and of an integral ecology lived out joyfully and authentically.” (Laudato Si’, Paragraph 10)

In recent decades, Christian communities have used liturgies and prayers to not only praise God for the wonders of nature but also lament human actions which have caused deep harm to the environment. Examples include this Prayer of Lament from the Anglican Communion Network and the Anglican Alliance, and the Missa Gaia often heard in churches on a Sunday in October in observance of the Feast of Saint Francis (the patron saint of ecology).

In 2015 international negotiations resulted in the Paris Climate Agreement, but the climate crisis has only deepend during the intervening years. Annual increases in the numbers of fires, floods, and hurricanes and the rising of sea levels have confirmed what the scientific community had been claiming for decades – that human activity was degrading the earth and its atmospheric envelope and setting off irreversible changes in the environment.  Many groups both secular and religious have engaged in climate strikes, vigils, and protests around the world. This is a time when many of us feel a need to pray with words of hope that we can change the way we live on our planet home. The following prayer is taken from a prayer booklet developed for children and young adults in New Zealand.

Walk Lightly

Each leaf, each petal,
each grain, each person,
sings your praises,
Creator God.
Each creature on the earth,
all the mountains and great seas show your glory,
Spirit of Love.

And yet the hand of greed has patented
and plundered your splendour,
has taken and not shared your gift,
has lived as owner of the earth, not guest.

And so the ice is cracked
the rivers dry,
the valleys flooded
and the snowcaps melt.

God our Father,
show us how to step gently,
how to live simply,
how to walk lightly
with respect and love
for all that you have made.

Amen.

Adapted from a prayer written by Linda Jones/CAFOD. [2]

[1] “World Religious Leaders and Scientists Make pre-COP26 Appeal: External Statement / 05 Oct, 2021,” United Nations Climate Change, accessed November 6, 2021, https://unfccc.int/news/world-religious-leaders-and-scientists-make-pre-cop26-appeal.

[2] “Climate Change Prayer Booklet,” Caritas Aotearoa New Zealand, accessed November 6, 2021, https://caritas.org.nz/system/files/Climate%20Change%20Prayer%20Booklet.pdf