The German philosopher Tilo Wesche has published a book ‘Rights of Nature’ that submits an inspiring, important and comprehensive argument why ‘nature’ owns property that must be recognized in our legal systems and that would transform our societies to become ecologically sustainable, in an institutional regime of cohabitation between humans and ‘nature’ on the basis of legal equality. This book is in German, so I briefly summarize the key argument and will then present my critique, which, however, is productive in the sense that I think that Wesche’s case can even be strengthened. The pivotal point of my critique is his use of the term ‘nature’, so I use it with quotation marks.
Wesche diagnoses that the existing approaches to ecological transformation remain too weak to contain the destructive way how the current economic system works. He shows that this results from the fact that they operate via external interventions, political, moral, legal, without affecting its basic mechanisms. At the core of these mechanisms is property, since property gives humans the right to appropriate ‘nature’ without compensation. Wesche’s starting point is to consider whether and how property can be changed to transform the system, and he presents a fascinating dialectic: The existing institution of property is incomplete in failing to fully develop its logic (‘Begriffslogik’ in the Hegelian sense) which requires to recognize property of ‘nature’. So, this recognition would not revolutionize the system, but fully develop it. How does that apparent paradox work? Wesche overviews various theories of property and concludes that the key justification is that property accrues to an entity if that entity creates value in using the object of property. This is close to John Locke’s view, but without the idea of the free human person and her labour. If value creation is the key, then ‘nature’ is a legitimate subject of property, because ‘nature’ produces services (Wesche builds on the notion of ecosystem services) that so far humans appropriate for free. These services create value in the form of natural resources used by humans: The duality of ‘services of nature’ and ‘natural resource’s’ is one of the highly original ideas of the book (my impression is that the German ‘Naturleistungen’ may be better translated in another way than services). Yet, humans deny ‘nature’ the right to property that necessarily follows from value creation. Hence, completing the current system of property requires extending that notion to ‘nature’. From this result wide-ranging consequences, notably the internal limitation of human property, since all uses of natural resources require coordination with and compensation of the other co-proprietor, ‘nature’. That means, the full existing legal force of ´property law’ would apply for ‘nature’, resulting, for example, in the full internalization of externalities such as polluting a river (which is so far only interpreted in terms of damage to humans).
Wesche’s book is rich in detail, but for my current discussion this summary of its logic suffices. My critique points at the use of ‘nature’ as counter pole to ‘human’. To be frank, it came as a surprise to me that in such a sophisticated argument, such a highly contested and problematic term stays at the centre. In the recent decades, ‘nature’ has been deconstructed and discarded as an analytical concept from many sides (for an overview, see Vogel’s book). In the current context, what matters is that we cannot reasonably define a neat borderline between what is ‘human’ and what is ‘nature’, both conceptually and empirically. Planet Earth has become a hybrid, and most ecosystems have been deeply shaped by human activity for millennia, conceptualized as anthromes. At the same time, humans as embodied persons are also part of ‘nature’. Another issue is that ‘nature’ encompasses many different types of processes and structures, and Wesche himself argues that the property notion must be analysed in relation to ontological plurality of possible objects of property (which he refers to as ‘goods’). For my current argument, consider the difference between sand and soil. Sand is the product of geological processes working over a very long time span, soil is the product of local ecosystems involving a large number of species. Can we employ the notion of value creation for both? In the case of sand, that would imply that legal representation would relate to such geological forces, which overstretches the argument, in my view. In the case of soil, we can clearly identify the creators of values, such as the earthworms.
This brief reflection shows that we should not refer to ‘nature’ but to the biosphere and its members as subjects of property. In fact, this is implied by the notion of ecosystem services. This substitution renders the whole argument more operational, but raises the next question. Wesche argues forcefully that there is a fundamental difference between humans and ‘nature’: Humans are persons who can be free in their action, nature is not. Nature has no freedom and therefore no agency. This stark normative juxtaposition may seem reasonable as long as one refers to ‘nature’ in general (which also applies for ‘humans’ who neither have agency as a collective), but falls apart if we look at the biosphere and its members. When it comes to property subjects, the relevant reference cannot be a diffuse entity such as ‘nature’ but living systems as concrete beings. The notion of ‘freedom’ is as burdened with political, ideological and philosophical ballast as the notion of ‘nature’. In our new forthcoming book, Frédéric Basso and I argue that it should be discarded in favour of ‘autonomy’ which has not only prestigious philosophical pedigree in German idealism important for Wesche, but is also a key concept in modern philosophy of biology and foundational thought about life. If we turn to autonomy, we have concise definitions of what an autonomous agent is, and these lead to the conclusion that all living beings are such agents. If we add the similar wide extension of the notion of ‘sentience’, then the ontological duality of humans versus ‘nature’ can no longer be maintained. Wesche argues that freedom is the normative core of human property, and he adapts this for the case of ‘nature’ without freedom. If we focus on the biosphere and living systems, both humans and non-humans are subjects of property because this is constitutive for their autonomy.
Finally, if this is the case, another imbalance in Wesche’s reasoning can be remedied: He claims that humans can appropriate natural resources, subject to the constraints of property of ‘nature’, but ‘nature’ cannot appropriate anything human. This cannot be maintained if all living beings are autonomous agents. The reverse operation corresponds to what I have introduced in this blog as technosystem services as dual of ecosystem services: If humans build artefacts by using natural resources, the co-proprietors can claim that humans offer technosystem services in compensation. This is straightforward in practice: For example, in building urban landscapes humans would have to create also value for other species, that is nurturing biodiversity, in the design of specific ‘nature-based solutions’. As I have argued elsewhere, such a reciprocal relationship can be institutionally anchored in a specific property institution, ecosystem commons with humans and non-humans as members with equal rights. Wesche’s approach to value creation would define such a commons as a community of value co-creation.
As we see, Wesche’s way of reasoning helps to further expand and fortify his idea. He says that it is necessary to fully unfold the logic of property. But in using the concept of ‘nature’ as a key reference, its full deployment is blocked at critical junctures: the failure to recognize more-than human agency and reciprocal claims of non-humans against humans. Removing these stumbling blocks completes his theory of truly universal property.
The technosphere, our agency, our planet 