Individual Liberty
The second part of a mini-series by Håkon Evjemo, ‘Rethinking Legal Personality’.
This mini-series of essays on rethinking legal personality is really motivated by a fear that by granting nonhumans legal personality, we are fighting anthropocentrism with another form of anthropocentrism. Which is to say, legal personality is a human construct. More importantly, it was originally created by humans for humans. Even worse, the so-called universality of the anthropos upon which it is based is now commonly understood to actually reflect a particular type of western, male, property-owning human. By recognising nonhumans as legal persons, are we not squeezing them into legal categories that have historically been created by and for (specific) humans? Are we not doing the very thing we are trying to oppose, i.e. knocking humans off their perch as the centres of meaning and the arbiters of value? Before granting legal personality to nonhumans, maybe we have to give some thought as to what legal personality might mean for them?
This short essay is interested in the idea of liberty, specifically individual liberty. The notion that freedom (and its correlating responsibility) is expressed and possessed by a single individual. Liberty is a key feature of legal personality. Human rights and (corporate) law protect various types of freedoms that are expressed by an individual. This notion that liberty can be atomised and placed in a single individual is essential to our current understanding of legal personality.
However, it is not the only way of interpreting liberty. We can also understand liberty as diffuse. Drawing on processual understandings of nature, one can instead think of liberty or freedom as a diffuse phenomenon rather than an essential power. Diffuse liberty recognises that freedom is not the power to flourish, but the condition of flourishing.
My freedom to be or do anything does not exclusively begin with me, but relies on that network of relations of which I am a part and that is also supportive of me. These conditions for flourishing are the interlocking network of social relations and support networks that allow me to get an education, secure a job, access healthcare, etc. The question is whether such an interpretation has any value for current legal practices and/or informing nonhuman legal personality. [AI generated image]
Current legal practices
A good example of individual liberty (and its complementary notion of responsibility) can be found in tort law i.e. civil redress of harm between people. The atomisation of liberty acts as a kind of limit on the legal reach of various forms of liability, preventing legal responsibility from excessively spilling over into all walks of life. This atomisation also lends itself to the kind of mechanistic detective work judges engage in to identify the true cause of harm, i.e. who is liable for damages. One of the problems with this approach to liability is its tendency to reduce or simplify quite complex relationships.
The rule of law - the need for clear and predictable laws - serve as good reasons why simplification is needed. However, this need to atomise first, then analyse second, has the unfortunate consequence of excluding any consideration of the relationships between beings. To use an analogy from ecology, it has the effect of valuing a monoculture of trees while remaining blind to the presence or non-presence of life-sustaining relations those trees establish with each other and the rest of the ecosystem. Something similar happens when we focus exclusively on the liberty of individuals while ignoring the network of social, interspecies relationships that support the flourishing of individuals.
So this idea of individual liberty may be useful in some circumstances, but it is problematic in others. How do we become more aware of the relations between legal persons? One could even argue that the ongoing expansion and contraction of the limits of tortious liability reflects a philosophical interrogation into the differences and complementarities between diffuse and individual liberty. While the definition of harm stays within the remit of individual liberty (the loss or detriment to a person’s legal rights, property, or well-being), the very notion of 3rd party liability, of extending legal obligations beyond direct personal or contractual obligations, seems to point towards a broader, more social type of legal responsibility.
The famous case of Donoghue v Stevenson (of a lady who became ill after drinking a bottle of ginger beer with a decomposed snail in it and successfully sued the manufacturer and the person who sold it to her) established the neighbour principle: people owe a duty of care to others who are directly affected by their actions. The diffuse nature of the neighbour principle is found in its recognition of a kind of relationality that precedes the individual subject’s exercise of liberty. [AI generated image]
There is, then, a silent recognition of the diffuse nature of liberty. The notion of diffuse liberty has always already been operative in UK law. We just need to find ways to better articulate its prevalence in the ever-growing environmental legal struggles. For example, we don’t necessarily need to grant nonhuman legal personality in order to include them in legal decision-making. We can explicitly adopt or further champion this interpretation of diffuse liberty in legal arguments that oppose environmentally destructive activities. According to this diffuse interpretation of liberty, when a water company pollutes a river, they are interfering with the interconnected network that conditions the flourishing of various human and nonhuman beings. The water companies are liable, not because they do direct harm to any individual, but because they disrupt or harm an interconnected network of inter-species relationships. They have undermined the diffuse liberty of not just the various residents who live on or adjacent to the river, but also the various fish, birds, trees and other nonhuman creatures that are also affected.
Diffuse Liberty and Nonhuman Legal Personality
While I have tried to explore how the idea of diffuse liberty can supplement existing legal practices, I have not yet answered the question of whether this notion of diffuse liberty can or should inform nonhuman legal personality.
One of the obvious reasons why the notion of individual liberty may not be suitable for various nonhumans is that many nonhumans do not exhibit the same degree of individuality as humans. Consider the Great Barrier Reef. As Braverman has observed, “corals’ unique life forms upset traditional biopolitical assumptions about life/death and individuality/population.” The very existence of corals - the fact that biologists refer to certain coral reefs as “holobionts”, holistic entities composed of various different living entities that are symbiotically related to each other - directly challenges the idea of the self-contained individual. It also encourages us, humans, to reflect on our own bio-historical existence. There is no such thing as a pure human being. Not only are we descendants of nonhumans, but we presently share a body with a variety of nonhumans. The biological erosion of our own individuality allows us to question the appropriateness of thinking of our own expression of liberty as exclusively individual. Coral reefs actually teach us something about ourselves.
[Image credit: adiprayogo liemena]
But what would happen if we granted the Great Barrier Reef legal personality, then interpreted the associated liberties and responsibilities of legal personality in exclusively individualistic terms? How does an individualistic interpretation of liberty cater for the uniquely complex, ambiguous and inherently ecological nature of the Great Barrier Reef? To borrow from the language of human rights, we can talk about protecting the Great Barrier Reef’s right to life, but which part exactly?
And what about the non-living elements that still play an essential ecological role in the Reef’s overall functioning? What about the other sea life that take refuge and make a life for themselves in and amongst the coves and shelters of the Reef? Overfishing has a direct impact on the health of a coral reef. And yet, if we maintain an individualistic interpretation of liberty, we would naturally exclude any ‘externalities’ such as fish populations as falling beyond the purview of the Reef’s libertarian concerns.
What would it actually mean if coral reefs were conferred the same kind of legal personality as humans. They would be seen as self-sufficient, legal agents unto themselves. The modern liberal subject. A free moving atom that passes from one legal setting to another, unburdened by any kind of relational dependence or legal obligation to those around it. But this is patently not the case. They are deeply indebted to their surroundings in a way that individual liberty actively ignores. We can apply the same critique of individual liberty to rivers or lakes. A river may not fall within the strictly biological definition of a living being, but when we switch to the notion of diffuse liberty we capture the broader network of living and non-living beings that form part of the river as the condition for inter-species flourishing. The river becomes alive through its interdependence with other beings. It loses its vital sheen when it is forcibly extricated from its network via the recognition of its rights qua individual liberty.
If we were, therefore, to grant the Great Barrier Reef legal status or any river or lake, I hope that we find a way to move away from the idea of liberty as concentrated in the individual. Or, as I will continue trying to argue in this short series, that we stop trying to force nonhumans into legal categories that were designed for humans. When granting rights to coral reefs or rivers, we need to develop new models of legal personality that cater for their needs. Otherwise we risk repeating the very anthropocentric logic that ecocentric critiques of the law so vehemently oppose.
In the next essay, I will continue this critique. I will focus on another (often neglected) dimension of legal personality: being a centre of action. I will try to show how 1) legal personality champions the idea that legal subjects are centres of action, and 2) why being a centre of action is problematic for nonhumans (and humans!) and should be replaced with the idea of middling. We are not centres, or absolute points of reference, but are always caught up in the middle of a commotion. Legal subjects cannot extricate themselves from situations. They are always already implicated in the world around them, just as the world is always already implicated in them.
About the author: Håkon Evjemo is a PhD student at the University of Dundee. His research interests include non-human agency, dynamic ontologies, embodied phenomenology and indigenous approaches to nature philosophy.
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