Tag Archives: conservation

A Note on Stone’s “Should Trees Have Standing?”

A report in the New York Times the other day about the Federal District Court case naming the Colorado River as plaintiff led me to Christopher D. Stone’s 1972 Southern California Law Review article, “Should Trees Have Standing?” Justice Douglas drew on Stone’s arguments to formulate his dissent in Sierra Club v. Morton, and since that time the essay has been widely influential, a classic that helped define a field.

For Stone, a river or a lake, a mountain or a forest, a species or the biosphere can have roughly the same status as other “legal incompetents.” A human guardian or, as we might say nowadays, a protector brings a complaint for a natural entity that has suffered some injury. The case is brought “at the behest of” the river or mountain, without having first to prove injury to the guardian or some third party (e.g., a fishing guide whose business has suffered as the result of stream pollution); and the natural entity itself would be the beneficiary of an award or remedy ordered by the court. So, for instance, a judgment against those who have polluted a stream might direct them to undo the damage done to its waters, mitigate erosion of its banks and depletion of its plant life, restock its fish, and so on. The stream would have a “right” to be made whole again.

Stone recognizes that his proposal “is bound to sound odd or frightening of laughable,” but that, he notes, has been true of any movement to confer rights on rightless “things”:

There will be resistance to giving the thing “rights” until it can be seen and valued for itself; yet it is hard to see it and value it for itself until we can bring ourselves to give it “rights” — which is almost inevitably going to sound inconceivable to a large group of people.

Stone’s thinking can seem way ahead of its time — and ours (even if the writing here is sometimes redolent of Southern California in the early 1970s). This is especially true toward the end of the piece, where Stone moves from making strictly jural arguments for the standing of rivers, trees, and other natural entities to broader observations about the “shift from the view that nature exists for men”:

…the time is already upon us when we may have to consider subordinating some human claims to those of the environment per se. Consider, for example, the disputes over protecting wilderness areas from development that would make them accessible to greater numbers of people. I myself feel disingenuous rationalizing the environmental protectionist’s position in terms of a utilitarian calculus, even one that takes future generations into account, and plays fast and loose with its definition of “good.” Those who favor development have the stronger argument — they at least hold the protectionist to a standstill — from the point of advancing the greatest good of the greatest number of people. And the same is true regarding arguments to preserve useless species of animals, as in [the case of sea urchins endangered by a nuclear power plant.] One can say that we never know what is going to prove useful at some future time. In order to protect ourselves, therefore, we ought to be conservative now in our treatment of nature. I agree. But when conservationists argue this way to the exclusion of other arguments, or find themselves speaking in terms of “recreational interests” so continuously as to play up to, and reinforce, homocentrist perspectives, there is something sad about the spectacle. One feels that the arguments lack even their proponent’s convictions. I expect they want to say something less egotistic and more emphatic but the prevailing and sanctioned modes of explanation in our society are not quite ready for it. In this vein, there must have been abolitonists who put their case in terms of getting more work out of the Blacks. Holdsworth says of the early English Jew that while he was “regarded as a species of res nullius … [H]e was valuable for his acquisitive capacity; and for that reason the crown took him under its protection.” (Even today, businessmen are put in the position of insisting that their decent but probably profitless acts will “help our company’s reputation and be good for profits.”)

For my part, I would prefer a frank avowal that even making adjustments for esthetic improvements, what I am proposing is going to cost “us,” i.e., reduce our standard of living as measured in terms of our present values.

We may still not be “ready for it,” as Stone puts it; and, he goes on to say, there might be a more “fundamental problem” with asking human beings to put their own immediate self-interest aside and act on ethical principle, or to limit our rights in order to respect the rights of others:

Insofar as the proposal is not just an elaborate legal fiction, but really comes down in the last analysis to a compromise of our interests for theirs, why should we adopt it? “What is in it for ‘us’?”

This is a question I am prepared to answer, but only after permitting myself some observations about how odd the question is. It asks for me to justify my position in the very anthropocentric hedonist terms that I am proposing we modify. One is inclined to respond by a counter: “couldn’t you (as a white) raise the same questions about compromising your preferred rights status with Blacks?”; or “couldn’t you (as a man) raise the same question about compromising your preferred rights status with women?” Such counters, unfortunately, seem no more responsive than the question itself. (They have a nagging ring of “yours too” about them.) What the exchange actually points up is a fundamental problem regarding the nature of philosophical argument. Recall that Socrates, whom we remember as an opponent of hedonistic thought, confutes Thrasymachus by arguing that immorality makes one miserably unhappy! Kant, whose moral philosophy was based upon the categorical imperative (“Woe to him who creeps through the serpent windings of Utilitarianism”) finds himself justifying, e.g., promise keeping and truth telling, on the most prudential-one might almost say, commercial-grounds. This “philosophic irony” (as Professor [S. Morris] Engel calls it) may owe to there being something unique about ethical argument. “Ethics cannot be put into words”, Wittgenstein puts it; such matters “make themselves manifest.” On the other hand, perhaps the truth is that in any argument which aims at persuading a human being to action (on ethical or any other bases), “logic” is only an instrument for illuminating positions, at best, and in the last analysis it is psycho-logical [sic] appeals to the listener’s self-interest that hold sway, however ”principled” the rhetoric may be.

That logic may have its limits and ethical argument its attendant ironies should not deter us. “The strongest case can be made from the perspective of human advantage,” Stone writes; and after reviewing that case, he goes on to suggest that protecting the environment will actually raise our standard of living, if not in terms of our present values, then (this point deserves emphasis) in terms of new and more durable values.

Stone is even prepared to argue that “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” (and the problems Stone identifies here, in 1972, are still very much with us and more urgent than ever before: melting polar ice caps, dying oceans, serious threats to water). “There are strong reasons for such a changed consciousness [Stone admits that he is uncomfortable with the term] from the point of making us far better humans.” Recognizing the rights of those whose standing once seemed “unthinkable,” to borrow Stone’s phrase, surely has.

Inside Greenberg’s Tuna Machine

Paul Greenberg wants us to regard bluefin tuna as “wildlife” on the verge of extinction, but when he admires the fish he admires them as machines: at one point in his article for the New York Times Magazine he likens the bluefin to a big inefficient “Hummer”; he watches its “tuna motor” run, and slow; he marvels at the bluefin’s “miraculous engine.” And in one of the oddest passages in the entire article, he refers to the fish explicitly as a machine:

Not only is the bluefin’s dense, distinctly beefy musculature supremely appropriate for traversing the ocean’s breadth, but the animal also has attributes that make its evolutionary appearance seem almost deus ex machina, or rather machina ex deo — a machine from God. How else could a fish develop a sextantlike “pineal window” in the top of its head that scientists say enables it to navigate over thousands of miles? How else could a fish develop a propulsion system whereby a whip-thin crescent tail vibrates at fantastic speeds, shooting the bluefin forward at speeds that can reach 40 miles an hour? And how else would a fish appear within a mostly coldblooded phylum that can use its metabolic heat to raise its body temperature far above that of the surrounding water, allowing it to traverse the frigid seas of the subarctic?

This may be as pretentious as it is confusing. And the two qualities may be inseparable here. Take the most pretentious moment of all, the recourse to Latin and the variation on the literary phrase “deus ex machina.” Greenberg here first requires us to see the bluefin as a stage god of papier mache, brought up through the trap door or riser (the “machina”) on to the evolutionary stage. The fish is a piece of stagecraft, a device, the artifice of a Poet or Maker, I suppose, who writes the great drama of evolution. Here and elsewhere, Greenberg flirts with, but never really strikes, a compromise position between evolution and – I won’t call it Creationism, but I will call it Deism.

Horace, who coined the phrase “deus ex machina” in his Ars Poetica, considered the mechanical delivery of the god on stage a clumsy way to resolve plot conflicts, and advised strongly against it; but I suppose we are not meant to take the Latin that far, or that seriously. We, too, are supposed to pretend, or at least feel smug and assured. So it wouldn’t do, I suppose, to ask what conflict or entanglement is resolved by the evolutionary appearance of the bluefin.

Besides, Greenberg himself isn’t comfortable with the phrase, as his next move reveals: the bluefin tuna doesn’t just seem like a plot device, or a god brought on stage by the Maker of evolution; the fish also seems “a machine from God.” Whether “machina ex deo” is really the most elegant way to express this in Latin I leave for others to discuss, but I will note that the “ex” with the ablative “deo” here feels like a clunky way to express the idea of the bluefin as God’s machine, almost medieval, or like late Latin at best: it just feels a little too mechanical. (Of course that has not deterred scholars from using the phrase in books about technology; we even have Joan Rothschild’s Machina Ex Dea, an anthology that purports to offer “feminist perspectives on technology.”) Apparently, Greenberg and his editors at the Times did not fuss too much over the Latin, and could not resist the allure of the reversal here. But what does it mean? What could it mean?

The Neoplatonic philosopher Plotinus conceived of a “creatio ex deo”. Creation, in this view, is an emanation from God, or “the One.” The emanation is simply (not merely, but simply) a consequence of the transcendent One. Plotinus asks us to consider the sun, which is not diminished by its rays. The created universe shines forth from Divine Nous, which Christian writers would identify with the Logos or the Word of John’s gospel. God in this conception is not the Aristotelian prime mover, creating the universe and all living things “ex nihilo,” out of nothing; presence itself, The One, is in no way affected or diminished or changed by the emanation of or from its presence. We recognize the transcendent One when we recognize the Good or the Beautiful in the world, and from there, as in Platonic thought, move to contemplate the Forms.

Now you can easily see how this Neoplatonic view – a view of the creation as an emanation of God, the beauty of which leads us to the Creator – could inform what I am calling Greenberg’s Deism. We can come to know God, the Transcendent One, by watching the bluefin run. But this isn’t exactly Greenberg’s point of view – or at least it’s not the point of view his language allows. Instead, he wants to see God as a great engineer, a maker of machines; he has converted creatures to machines.

This idea of the world as a big clockworks, and all the creatures as instruments in that elaborate work, has been around since the 17th century. For Descartes, animals are automata and their bodies are machines, a complex set of moving parts, which can be replaced by pistons, drivers, rods, chips, apps, and so on. This cold and cruel view is part of the great philosophical heritage of the fish farm that Greenberg visits in Hawaii, where the idea is to engineer a better sushi fish, so that the bluefin can be left to run wild – or so that we can still eat sushi after the bluefin go extinct. Man assumes the role of maker, or helpmate, to God; the exercise of dominion over the created world, entrusted to man by the God of Genesis, is really a bit like running a machine shop or an industrial plant.

What gets lost or severely diminished when we liken creatures to machines is the essence of Creation or, indeed, of evolution: what gets lost is life. Wendell Berry has written beautifully on this theme, the ugly determinism it involves, the industrial devastation it enables, “the incalculable cost,” as he puts it in Life is a Miracle, “to other creatures and to ourselves.”

Without a full appreciation for life, and for all that sustains life, all the many relationships and little connections that sustain the lives of creatures and our own lives, and allow the life of one place – the sea, the forest, a farm – to be unique and truly marvelous, the idea of “wild life” is never really going to have much grab. And the only things we will find really marvelous will be the machines of our own making, or, even worse, our ability to make and remake them.