Tag Archives: rights

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.

A Note on the Latest No-Platforming

There are currently a number of arguments being made on both sides of the question whether the no-platforming of Peter Tatchell constitutes censorship. I won’t say they are all good arguments; but I’d like to suggest there’s more at stake in all this than the speech rights of one very outspoken person. This thought was brought home to me by a turn of phrase in Jerry Coyne’s very thorough post on the Tatchell affair:

If someone is invited to an event and then is disinvited, or someone who’s already agreed to speak at an event withdraws because they don’t like the views of another invited speaker, then that is a kind of censorship, as it constitutes breaking an agreement previously made in an effort to prevent someone’s views from being expressed and heard.

Censorship might well have been the intended outcome of Fran Cowling’s childish refusal to take part in a debate with someone who had signed a letter defending the free speech of Germaine Greer and other writers whose views she found unsavory. I don’t know for certain that she meant to do anything other than stomp her feet in public (some people call this behavior “virtue signaling”) or if she had thought her actions all the way through.

All that involves very complicated questions about her intentions and so on, and it’s beside the simpler point I want to make. Before jumping into questions of what Cowling intended or what were the intended or unintended consequences of her actions, I suggest we pause to consider the simple fact that (as Coyne puts it, or almost puts it) Cowling broke an agreement. Full stop.

Of course, we make and break agreements all the time, sometimes reaching and then rescinding an agreement jointly with others, and sometimes in violation of commitments we’ve made, or without fulfilling the explicit or implicit terms of the agreement. It’s in making and breaking agreements where we come up against questions of what we owe each other.

In this instance, the breaking of the agreement could stand at least as much discussion as the censorship question or the question what Cowling hoped to accomplish by breaking the agreement. It’s not simply that Cowling broke or withdrew from the agreement she’d made to appear alongside Tatchell. He’s even said that he’s ok with that (“She has a right to refuse to speak alongside me, but not to make witchhunting, McCarthy-style, untrue allegations.”). It’s her denouncing him as a “racist and a transphobe” that really bothers him.

But there was a much much more basic agreement in place even before the invitation to either speaker was made, and that’s something like a shared commitment to debate, or the very idea that it’s worth talking things over and listening to what others have to say — as opposed to, say, might makes right or some equally ugly proposition. It’s hard to believe that this even needs saying: when we deny others who share a commitment to talking things over the standing to talk, we wrong them and invite all sorts of abuses against them and against ourselves.

This is one reason why Cowling’s actions appear to be unethical and dangerous even if it can be argued that they are not, as her supporters insist, a violation of Tatchell’s individual rights.

From Aping to Asking

Joseph Jordania offers a clever but not entirely satisfying answer to the question posed in the title of his book Who Asked The First Question?

“The first human being.”

Did asking questions make us human? Maybe not exactly, or at least that can’t be the whole story. But to be human is to ask questions, and clearly the ability to ask things of each other — to request clarification, to invite others to join with us in some activity, to make offers and claims or demand reasons — is at the very core of human social life; and in primate cognitive evolution, asking or the power to ask must represent a significant turn toward the human.

A 2004 study of chimpanzee gesture sequences by Liebal and Tomasello suggests that apes do not request clarification in the way we do, from infancy, to help the other convey meaning or in order to negotiate meaning collaboratively. Asking for clarity, we recognize the other, show that we appreciate the role she is playing in trying to communicate with us, and we make meaning together; and just as importantly — and on a more basic level — we commit to the project. It’s not language use that differentiates us here; it’s the commitment (though I would not be surprised if these turned out to be indistinguishable and inextricable). The so-called “speaking” bonobo Kanzi will play with toys or participate in the preparation of food, but so far as researchers can tell, Kanzi lacks understanding that he is doing these things together with you: he is not jointly committed with you to the activity, does not recognize your role or support you in it.

Kanzi learns, but lacks commitment.

Kanzi learns, but lacks commitment.

For Tomasello and his colleagues, our amazing ability to co-create meaning or even to coordinate through request and reply isn’t what ultimately sets us apart. The first human may have asked the first question, but the power of asking and language use itself is “not basic; it is derived.” “An adaptation for participating in collaborative activities involving shared intentionality” is the more fundamental evolutionary step, write Tomasello et al. in a 2005 paper on human cognitive evolution. “At some point — perhaps heralding the emergence of modern humans some 150,000 years ago — individuals who could collaborate together more effectively in various social activities came to have a selective advantage.”

Early human life, in this view, does not look so nasty, brutish and short, or at least not so nasty and brutish; and Tomasello is aware that he’s running against the prevailing “Machiavellian” account of human evolution. He offers a “Cultural account” of human cognitive evolution that “emphasizes … the importance of collaboration, cultural historical processes, and strong reciprocity based on social norms.” Putting the emphasis on collaborative give and take instead of on winner-take-all competition may not make sense of every step in our evolution, but it helps Tomasello bring into focus an important aspect of human cognition. Specifically, he argues that it was through collaboration (not competition) that we became highly skilled at reading and sharing intentions.

Although intention reading may be helpful in competitive interactions, it is not absolutely necessary — since in competition I care mainly about what you do. That is to say, in competitive interactions, the interactants do not have goals about others’ intentional states; the situation is that we both have the “same” goal (e.g., both want that piece of food), and the key thing is that I anticipate what you will do next. In contrast, collaborative interactions require interactants to have goals about others’ intentional states so that the requisite shared goals and plans may be formulated. Thus, in collaborative interactions, we are faced with the so-called coordination problem from the outset: to get started, we must somehow coordinate or negotiate so that we end up with a shared goal…Then, in addition, to collaborate effectively, we must mesh our action plans at least some of the way down the hierarchy — and this requires some communication about those plans, at least to some degree ahead of time.

“The motivations and skills for participating in this…’we’ intentionality are woven into the earliest stages of human ontogeny and underlie young children’s developing ability to participate in the collectivity that is human cognition.” In other words, we are hard-wired for soft sharing skills — born to collaborate. At only 14 months of age, infants “begin to understand full- fledged intentional action – including the rudiments of the way people make rational decisions in choosing action plans for accomplishing their goals in particular reality contexts and selectively attending to goal-relevant aspects of the situation.”

This kind of understanding leads to some powerful forms of cultural learning, especially imitative learning in which the observer must perform a means-end analysis of the actor’s behavior and say in effect: “When I have the same goal I can use the same means (action plan).” This analysis is also necessary before one can ask why someone did something and whether that reason also applies in my circumstance (“rational imitation”).  Without such analysis, only simpler forms of social learning are possible.

That is how, to riff on the horrible pun I’ve chosen for the title of this post, we manage to do more than simply ape the behavior of others; we learn by analyzing and asking. We can learn recipes and social rituals, make tools and share techniques, build bridges and launch sea voyages. We can inquire whether another’s reasons match our circumstances, and when we make that effort at rational imitation, we have only just begun to tap the power of asking. In order to ask why someone did something, after all, we must first see them as someone who has reasons: we ascribe rationality to them and to ourselves. You are someone who acts with reason, for reasons, and so am I. We are mutually accountable, so we can demand (or ask) that we bring reasons for our actions.

Serious Conversations, 2

Nora [after a short silence]. Isn’t there one thing that strikes you as strange in our sitting here like this?
Helmer. What is that?
Nora. We have been married now eight years. Does it not occur to you that this is the first time we two, you and I, husband and wife, have had a serious conversation?
Helmer. What do you mean by ‘serious’?
Nora. In all these eight years–longer than that–from the very beginning of our acquaintance, we have never exchanged a word on any serious subject.
Helmer. Was it likely that I would be continually and forever telling you about worries that you could not help me to bear?
Nora. I am not speaking about business matters. I say that we have never sat down in earnest together to try and get at the bottom of anything.
-Ibsen, A Doll’s House, Act 3

Preoccupations may be harder to escape than promises. I went to see a performance of A Doll’s House last night at the Harvey Theater, and this exchange between Nora and Torvald in the final act of Ibsen’s play reminded me of my pledge to say something more about serious conversations. (My first effort to make good on this pledge is here.).

There’s an important point here that I don’t want to overlook. A serious conversation requires something more than a serious subject to discuss. It may not have anything to do with the things we take seriously: business matters, for example. Well before we consider things, or the topic at hand, we have to sit down “seriously together” — alvor sammen, as Nora puts it to her husband Torvald in Ibsen’s Norwegian.

Of course, Torvald Helmer’s “honor” will not survive the serious conversation he and his wife have. The respect Nora ultimately demands —  the claim she makes on Torvald and on herself — will destroy their marriage and upset the bourgeois respectability of the Helmer household, or show it for the sham that it is. Torvald should have known: to sit down seriously together is always more about honoring the other than safeguarding personal honor. Or at least it’s a matter of honoring the joint commitment to have a serious conversation.

dolls-house

Torvald (Dominic Rowan) and Nora (Hattie Morahan) are about to have their first serious conversation in the BAM Harvey Theater production of Ibsen’s A Doll’s House.

I’m using “joint commitment” here in Margaret Gilbert’s sense — a commitment by two or more people as a body or plural subject, a we, to some act or activity: a walk or a conversation, for instance. For Gilbert, these joint commitments are commonplace associations by which we make up “the social world, the world of conversations, friendships, marriages, sports teams, discussion groups, religious orders, partisans, citizens and so on.”

In entering and living up to joint commitments, we share agency with others, and all parties are obligated — have a duty — to act in accordance with the commitment. “If our acting together, our conventions, and other central aspects of our lives together involve our jointly committing ourselves in one way or another, then our lives together are run through with obligations to one another and rights against each other, with the correlative standing to insist on various actions and rebuke for non-performance.”

To read the essays collected in Gilbert’s Joint Commitment (Oxford, 2013) is to appreciate above all how often and how effortlessly we enter into these joint commitments, just as a matter of course, and to be reminded that assumptions of trust, respect and mutual accountability infuse our everyday social experience.

These are all the issues that come to the surface when Torvald and Nora sit down seriously together, for the first time, to have their serious conversation. Whether we commit jointly to take a walk together (to use Gilbert’s favorite example) or have a conversation about work or a stifling marriage, what makes the activity serious is that we are on equal footing and mutually obligated to one another. Acknowledge that, honor it, and we have started to take one another seriously; deny it, or cover it up with patronizing gestures or power grabs, and we are probably heading for crisis or failure.