July 11, 2022

Ecology and more-than-human property

Author: Carsten Herrmann-Pillath

In responding to the challenge of climate change, the political focus is on decarbonizing the economy. This is certainly a priority, however it overlooks the issue that the catastrophic decline of biodiversity in recent decades was not caused by global warming, but by the material growth of the human economy, often referred to as the ‘technosphere’. Human ‘technomass’, i.e. the sheer weight of human-created artefacts and waste, has surpassed the entire wet biomass of planet Earth, and the numbers of domesticated animals for human consumption, from fowl to cattle, by far surpass the numbers of wild animals. Shifting to renewables would not necessarily contain this growth, which is driven by the growth of the human population and its expanding needs and wants. How can we then scale back this development?

In understanding the causes of the loss of biodiversity, a focus on land is indispensable. Human claims on land, both directly (e.g., buildings) and indirectly (e.g., plastic waste in the oceans), expropriate other living beings from using their own habitats. Western civilization was built on the belief that humans deserve the right to appropriate the Earth. This was cast into in the language of property in John Locke’s influential idea that human labor is what makes land valuable and thereby appropriates it rightfully. His theory legitimized the colonial seizures of vast land resources inhabited by humans with different ways of life, thus also destroying their natural habitats. This observation shows that one key issue is the lack of recognition of the original rights of these Indigenous peoples, which were (and still are) based on very different conceptualizations of the relationship between humans and land. In Locke’s tradition, productive use of land justifies appropriation. ‘Productive’ here means catering to the needs and wants as pursued by the white male colonizing subject, in capitalism expressed via the market.

Justifying appropriation by spending productive labor on land is deeply anthropocentric, or better, white-male-centric. Even if we accept this connection, the question is, who uses the land productively, and what are our standards for evaluating productive uses? Locke’s legacy persists into the 21st century when it comes to considering the relationship between human beings and their appropriation of the Earth’s biosphere. Anthropocentrism even shapes concepts, such as that of ‘ecosystem services’, which are designed for mending our broken relationship with the biosphere: We recognize the value of the biosphere in terms of its direct and indirect contributions to human well-being and livelihood. In the new extension of ‘Nature-based solutions’ promoted by the European Commission, the proposed solution to our current malaise is harnessing the powers of nature to repair our economies, while maintaining their capacities for growth. However, I believe that we will not be able to face our current challenges unless we first free ourselves from anthropocentrism. How can this be achieved?

One idea receiving increasing attention is to legally recognize the rights of the biosphere by, for instance, enshrining them in the constitutions of countries, analogously to human rights. However, this is a very broad notion, which is difficult to translate into concrete action. Therefore, a more radical idea has been ventilated: Why not recognize non-human claims on land as property? Karen Bradshaw, for example, titles her book Wildlife as Property Owners. This amounts to a revolution: Creating bio-centric property law. In fact, this idea can be based on John Locke himself (although he wouldn’t agree!): If property is constituted by labor that makes the land valuable, why shouldn’t that also apply to all living beings exploiting the land as a resource, thus making it valuable beyond human valuation? Locke’s reasoning can be widened to approach land as habitat for all kinds of living beings, hence rendering it as their property, once we refute his belief that only ‘man’ can be productive. This is ‘more-than-human property’.  

As described above, Locke’s original theory was used to legitimize the appropriation of Indigenous people’s land, thereby negating their own views on what ways of life have a ‘productive’ relationship to the environment. In principle, this can be corrected by recognizing their original rights as form of ownership. This critique can be furthermore extended to the non-human domain. However, there is a catch. The institution of property only remains meaningful for humans, and it can only be enacted among humans. We cannot negotiate over property with the wolves roaming their territory. Yet, conceptual clarity is needed: The notion of ‘territory’ in animal behavior can be easily rendered as ‘possession’, and we can interpret actions like defending a territory in ritual displays of aggression as claiming the right to possess, hence a form of property. In other words, while the wolf cannot presumably understand the human notion of property, humans have the cognitive and emotional capacities for understanding and even empathizing with the relationship that other living beings have with their habitat. These capacities are a pillar for legally constructing and practicing more-than-human property. The key is legal representation and legal personhood.

In principle, human law recognizes the rights of non-humans and even creates new non-human entities in the form of all kinds of corporations, trusts, endowments, and other legal persons. There are also many forms of fiduciary representations of humans (e.g. infants) who are considered unable to represent themselves. There is no principled reason why these legal constructs could not be used to create a framework for biospheric representation. However, the devil is in the details. If we consider property of land as space of habitats of all living beings, we face a vast number of possessors whose rights we would need to recognize as property, a situation impossible to navigate. The solution is at hand: We define landed property as a commons, owned by all members of the local ecosystem.

In this view, as the French legal scholar Sarah Vanuxem argues, we would revive medieval notions of property in distinguishing between the ultimate ownership of the land and the various rights to enjoy the fruits of the land. Commons were aggressively suppressed by European states in the 18th and 19th centuries, thus reflecting the new market-oriented conceptions of property enshrined in a series of legal innovations of civil law codes. As the Dutch historian Tine de Moor shows in her research on commons, medieval commons were very different from the mere ‘collective management’ of land, but they rather manifested a complex and rich system of various property rights, both individual and communal. Interestingly, one of the key concerns in managing those commons was to recognize rights to exploit the land for well-measured and sustainable gains on the marketplace while containing the lure of overexpanding into those opportunities of profit-making and eventually jeopardizing the sustainability of the commons. Obviously, this kind of balance is what we are in dire need of today.

In sum, I propose the concept of universal commons as the ‘more-than-human’ property regime for land. There is a long tradition in economics pondering and debating whether land should be subsumed under the private property regime. However, the alternatives have been seen as ‘human only’, such as collective human owners or the state. Building on contributions such as those of Bradshaw and Vanuxem, the new idea is to assign ultimate ownership to local ecosystems, which are legal persons such as trusts in Common Law jurisdictions or public endowments in Civil Law jurisdictions. These legal persons operate as commons in their internal relations, but as private owners in their external status. The former means that the legal prescriptions for managing the universal commons would define precise and binding duties for the human trustees or stewards of the legal person vis-à-vis all members of the local ecosystem. The latter means that the full range of private property rights protects the land claims of the ecosystem community ‘against the world’ by passing prescriptions against trespassing, other forms of damage or regarding takings. At the same time, the universal commons can define any form of partitioning and delegation of more detailed property rights to members and non-members for specific uses, such as seasonal nesting rights for migratory birds, or human commercial enterprise.  In this approach, humans become tenants of the universal commons with regards to the use of private and public land. If this seems outrageous, let us think of ultra-capitalist property regimes, as in colonial Hong Kong, where land was owned by the government and privately leased for long time spans (the 99-year Crown leasehold).

What is the advantage of such a veritable property revolution? Compared to environmental regulations and all kinds of policies, in the public interest, property claims can only be revoked under special circumstances. The universal commons can use the full range of the judicial system to enforce its interests. This is already salient in the increasing uses of private litigation by environmental NGOs, such as when they manage to hold minority shares in public corporations and sue management for enforcing climate friendly action. As the Trumpian tragedy in the US showed, governments can change policies at their whim, responding to pressure from powerful interest groups and electoral constituencies. At the same time, ecology is always local. The universal commons allows us to respond to the local conditions at the grassroots level, thus also allowing leeway to the engagement of human members as eco-citizens. In their economic endeavors, humans would be constrained by the obligations of the local commons to pay respect to the well-being of all members. Again, if rights are assigned to various members, this would even include litigation when humans abuse their partial rights (such as a tenant of land destroying a nesting place on which the migratory bird has a right).

Law transformed the world into global capitalism. It is time to harness the powers of law to achieve the transition to a world that is home to all living beings, sharing their opportunities for flourishing together.