Before I turn to your crass analogy involving fetuses, let’s deal with the trees and their “rights.” (Why am I reminded of Rush?) First, you either are contradicting yourself or have changed your mind that “Nature” deserves legal rights. I want to make sure we are in agreement here. Earlier, you stated that “Nature” did merit legal rights. Now, in your comment you have stated that they cannot earn or merit such rights. So, because I’m a little slow on the uptake, which is it?

Second, you have not answered my other questions. How do you place constraints and obligations (a necessary part of the very definition of legal rights) upon the actions of a tree or a forest of trees? How do we know if those particular entitlements, obligations and constraints are the correct ones to assign or grant? If a tree infringes upon my legal entitlement, how do I gain restitution? How does a tree seek restitution if another tree (or something else in “Nature”) infringes upon its “rights?”

These are important questions. Part of what makes our society function is the understanding that we are entitled to certain things but with that entitlement comes certain obligations and certain constraints upon it. You cannot sue for damages a tree that fell on your car or the lightning that caused it do so. A tree cannot sue another one for blocking its sunlight. And, the vacuousness of this whole thing reaches ridiculous proportions when we begin to talk about the whole of “Nature.” For example: do trees have more rights than flowers? Do flowers have more rights than weeds? Does my lawn have more rights than any of them?

To continue further into the absurd, how would “Nature” know if it even had legal rights? How do you communicate to the rose bush that it has legal recourse against the weeds in its flowerbed? Would the rose bush feel sad if it lost its case? Would it appeal? Can weeds, if they lost the case, appeal to be treated as a persecuted minority? Can they ask for civil rights and equal treatment because they are segregated by the blades of grass that make up my lawn? The answer to all of these questions is no. And, this is because “Nature” cannot be constrained or obliged by legal means.

In order to constrain or obliged “Nature” a person or a group of people must use willpower, whether this willpower takes the form of pesticides, axes, clippers, lawn mowers, hatchets, chainsaws, crop burns, sprinklers, poison, shovels, or any number of other tools we have devised to contrain, obliged, care for, and manipulate the world around us. Of course, this willpower and this manipulation can be done irresponsibly and in a destructive manner. This I won’t deny. But, such destruction does serve to further illustrate my point. And, frankly, I’m happy that we have found ways to constrain “Nature” and to be moderately successful at exercising our willpower over it.

Do you suppose the residents of the Gulf Coast or of New Orleans are sad that hurricanes don’t have legal rights? Or, maybe that the dirt in the dikes wasn’t given the opportunity to decide whether they wanted to be pilled up to protect the city? Or do California victims of an earthquake feel that such things are just another way “Nature” likes to express itself and laugh at their ruin? Or less extreme, we have lawns, parks, electricity in our homes, insulation in the walls of those homes, clothes on our body, and food in our belly because we have exercised our willpower over the world around us. And, to my mind, all those things are “good things.”

Now in your comment, to support a claim that you thought needed no support, you appealed to sentiment and the popularity of that sentiment. The proper response to such fallacies is so what? Simply because some people or most people are inclined favorably towards your claims or ideas (which I’m willing to grant) doesn’t prove they are true, right, or even desirable. Additionally, your appeal to emotion and to sentiment, even to the point of being crass, doesn’t demonstrate your claims either. So, again because I’m a little slow, I’m not really sure that there is anything in those appeals that I need to respond to directly.

But, on the question of babies and fetuses, I feel that I only need to point out that our entire Western cultural history and tradition has considered them human. And, there is extensive, massive legal precedent for the belief that humans possesses legal and natural rights. As we read in the Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

(As a relevant aside, the DoI continues by stating: “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.” Notice, that it is the fundamental belief of the Founders, and the founding philosophy of this nation, that governmemts are instituted to secure the rights of man. And, this securing occurs amongst men, not amongst trees or flowers or lawns or lakes or rivers. Furthermore, a government derives its power to secure those rights from the men that it governs. We give our consent, in this Lockean framework, to be governed. How do lakes give their consent to be governed? Or, flowers? Can we understand a forest fire that was started by a lightning bolt as a martyr’s protest against government? As an example of “Nature” not giving consent to be governed?)

“And the trees are all kept equal / By hatchet, axe, and saw.”

That’s an interesting question, Catholic Nutjob (great name, by the way). I hadn’t really considered it.

I guess, as a Catholic myself, I’d have to answer your question with a question: how does a fetus earn or merit a legal entitlement to do or refrain from doing something? How do you place constraints and obligations upon the actions of a fetus or a forest of fetuses?

Okay, it’s not likely that you’ll find a forest of fetuses. But still.

To answer your question as stated, however, I’d say this: trees cannot “earn” rights. They don’t have moral agency. But that doesn’t mean we can’t give them rights as we see fit. To use another example, a baby doesn’t have moral agency, but surely you’d be appalled if you saw a baby set on fire, or chopped up and used as paper. Now, you probably justify your revulsion through the belief in an the self-reflecting ego that Thomas Aquinas described and the boundless ability of the human mind to contemplate infinite being, blah blah blah. But, well, I disagree.

Fundamentally, your reaction to the violation of baby’s right is a gut instinct. You were a baby once. Perhaps you have a few kiddies of your own, and when you think about little babies being shaken or beaten or whatever, something inside of you is filled with disgust, a disgust that goes beyond your moralizing and perhaps goes even deeper than your Catholic faith. It’s a human part of you that is moved.

In my opinion, that’s empathy. It’s the ability to relate your own situation and being, and see the connection between yourself and the other. It’s a connection that goes beyond words and philosophy, and becomes a true, real experience.

Such a connection doesn’t justify giving a thing rights, of course. But it is evidence that there is potential, at least for healthy human beings, to move beyond the consideration of their small selves. There is potential for someone to feel such a consideration for forests, mountains, and trees.

I would suggest, and I think you’d find it hard to disagree with me, that millions of people on this planet have a connection to Nature. It might be deep, shallow, or otherwise, but for so many people, it exists.

If it’s possible for so many millions of people to break down, even just a tiny bit, their egos, and if by doing this they’re able to see just a tiny bit of themselves in a forest or a mountain, isn’t it true that there is something “human” in Nature? I don’t think it’s laughable to suggest that ecosystems have some legal protections.

True, what I just discussed above is not exactly “logical” or “objective.” It’s intuitive and subjective. But that is no reason to dismiss it casually or without consideration.

To end, I’m going to give you the most famous part of Justice William O. Douglas’ dissent in Sierra Club v. Morton:

The critical question of “standing” would be simplified and also put neatly in focus if we fashioned a federal rule that allowed environmental issues to be litigated before federal agencies or federal courts in the name of the inanimate object about to be despoiled, defaced, or invaded by roads and bulldozers and where injury is the subject of public outrage. Contemporary public concern for protecting nature’s ecological equilibrium should lead to the conferral of standing upon environmental objects to sue for their own preservation. This suit would therefore be more properly labeled as Mineral King v. Morton.

Inanimate objects are sometimes parties in litigation. A ship has a legal personality, a fiction found useful for maritime purposes. The corporation sole – a creature of ecclesiastical law – is an acceptable adversary and large fortunes ride on its cases. The ordinary corporation is a “person” for purposes of the adjudicatory processes, whether it represents proprietary, spiritual, aesthetic, or charitable causes.

So it should be as respects valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life. The river, for example, is the living symbol of all the life it sustains or nourishes – fish, aquatic insects, water ouzels, otter, fisher, deer, elk, bear, and all other animals, including man, who are dependent on it or who enjoy it for its sight, its sound, or its life. The river as plaintiff speaks for the ecological unit of life that is part of it. Those people who have a meaningful relation to that body of water – whether it be a fisherman, a canoeist, a zoologist, or a logger – must be able to speak for the values which the river represents and which are threatened with destruction…..

The voice of the inanimate object, therefore, should not be stilled. That does not mean that the judiciary takes over the managerial functions from the federal agency. It merely means that before these priceless bits of Americana (such as a valley, an alpine meadow, a river, or a lake) are forever lost or are so transformed as to be reduced to the eventual rubble of our urban environment, the voice of the existing beneficiaries of these environmental wonders should be heard.

Perhaps they will not win. Perhaps the bulldozers of “progress” will plow under all the aesthetic wonders of this beautiful land. That is not the present question. The sole question is, who has standing to be heard?

Those who hike the Appalachian Trail into Sunfish Pond, New Jersey, and camp or sleep there, or run the Allagash in Maine, or climb the Guadalupes in West Texas, or who canoe and portage the Quetico Superior in Minnesota, certainly should have standing to defend those natural wonders before courts or agencies, though they live 3,000 miles away. Those who merely are caught up in environmental news or propaganda and flock to defend these waters or areas may be treated differently. That is why these environmental issues should be tendered by the inanimate object itself. Then there will be assurances that all of the forms of life which it represents will stand before the court – the pileated woodpecker as well as the coyote and bear, the lemmings as well as the trout in the streams. Those inarticulate members of the ecological group cannot speak. But those people who have so frequented the place as to know its values and wonders will be able to speak for the entire ecological community…..

That, as I see it, is the issue of “standing” in the present case and controversy.

How does a tree earn or merit a legal entitlement to do or refrain from doing something? How do you place constraints and obligations upon the actions of a tree or a forest of trees? Who is to decide which entitlements, constraints and obligations are appropriate to assign or grant to trees? How do we know if those particular entitlements, obligations and constraints are the correct ones to assign or grant trees? If a tree infringes upon my legal entitlement, how do I gain restitution? How does a tree seek restitution if another tree infringes upon its “rights”?

In truth, it is not strange that in the United States “Nature” doesn’t have legal rights because our courts as thus far resisted the wholesale implementation of sloppy reasoning, even if this resistance isn’t as strong as it once was or as it should be.