Mihnea Tănăsescu, Representation doesn’t have to be a conclusion, an end point, but rather a process of getting to know each other

In this interview, Mihnea Tănăsescu explores the emergence of the Rights of Nature movement, its legal implications, and its intersection with indigenous perspectives. Tanasescu also considers how this movement may reshape our understanding of personhood and foster more horizontal relationships between humans and the environment.

Before we explore the rights of nature, I believe it's essential to address a fundamental question. The term "nature" holds significant importance in modern culture, yet its meaning remains elusive. What exactly do we mean when we refer to "nature"?

You started with the biggest question of all. It’s one of those things that everybody thinks they know what it is; it’s a signifier that immediately draws on emotions. But when you stop to think about it, it’s fuzzy, right? And it’s very hard to put a limit around it, so I won’t even try to frame it as A thing.

The term is used in many different ways and for me, one of the distinctions that I found useful in thinking about it is between three major uses. The first one views nature as signifying the whole, the totality, the planet, the global, which we’ve started to discuss since the space age exploration, since we’ve had images of the planet as one, as a totality, and I think that at that point, this idea of nature really became the equivalent of God and theology. And in fact, there is a theological aspect to this idea of the totality that gets carried over. The other meaning is expressed in ideas such as habitat, ecosystem or environment and it’s a shorthand for the immediate abode of different creatures – where do things live? That, to me, is a very interesting use. And then, of course, you have the natural which is qualifying something as separate from the human, and I guess here we’re touching on another really interesting idea of nature, meaning that it’s often presented as an opposite to culture, civilization, the human, etc. In the environmentalist discourse, the natural in that sense is also often a shorthand for saying that something is good, so the natural way is the right way, the good way. So those would be three different ways of using nature that you can’t combine into a coherent idea, and that’s fine, I mean, you don’t really need to.

How does the influence of modernism shape environmentalist perspectives?

I think that the heritage of modernism is very pronounced in environmentalism. But there’s a lot of experiments in trying to overcome this. It’s viewed in several ways and one is this idea of the wild and wilderness as opposed to human civilization. It’s a very romantic idea. Romanticism itself is a reaction to industrialism and modern development. It’s roiling in horror at what this new modernity is doing, and therefore idealizing what nature is. The idea of wilderness has been foundational for environmentalism. Basically that’s where the protection of nature started, viewed as a wild place, as they say in the United States, untrammelled by man, where nobody has been. This is obviously connected to settler colonialism, as there was no untrammelled land, there were just lands that belonged to people that we didn’t recognize as having a claim to them, because we supposed they didn’t have culture in our sense.

This is connected to the second thing that we’ve inherited from modernism, which is this duality between being the noble savage – someone that is inherently in harmony with nature and can do no harm – and the idea that people are intrinsically bad for nature. And I think this idea is so ingrained in the Western culture that part of the reason you need to protect it is that people can’t help but be bad for the environment. And that’s where we can switch it around and say, well, no, actually, people can and have been in many different instances throughout history good for the environment and we can specify what that may mean, and that there’s something to reclaim.

And again, in urban areas, when you give up this idea of wilderness as being the only way of conceptualizing nature, there is a lot of “nature” as well, and there’s no reason why people can’t enhance that, give it more space, learn how to observe it – a lot of urban dwellers don’t know how to do this – and learn new skills of interaction. So I think this notion that humans are either bad for nature or intrinsically good robs people of a rich history that they can learn from and reinvent ways of actually being good for the environment.

One of the modern functions of the term "nature" is its non-reflective, neutral status, which legitimizes various political perspectives and truths. What all these contradictory modern views have in common is their portrayal of nature as a passive object. However, what changes when Western law, which is not only anthropocentric but also Eurocentric, encounters nature as a legal subject?

The rights of nature combine the concept of nature we’ve just very briefly talked about and the idea of rights which also has a specific history in Western law, but also in the evolution of morality and ethics in the West in particular. The collision of these two ideas takes place in the late twentieth century, first in legal scholarship, where the underlying argument is fairly simple: nature only counts in law as property, as an object. This very instrumental ownership relationship to nature leads to all sorts of environmental problems. What this new legal paradigm proposes to do is to make nature a legal subject – anything that has rights also has what’s called a legal personality, a juridical personality. And what it does is that it makes it count on its own terms, so it’s not that you can’t own a legal person – a corporation is a legal person, for instance – but you can, in the case of nature, bring a lawsuit on behalf of the legal person, and not just because it’s your property. So the idea is to move the concept of nature in the law from object to subject, from property to counting on its own terms. That’s where it begins, and then it fans out in all sorts of different directions and different cases.

The first big case that attracted a lot of attention was the Constitution of Ecuador that was rewritten in 2008 for local political reasons and that for the first time in constitutional history anywhere, included several articles that give rights to nature. It is not defined, i. e., the Constitution mentions nature as such, everywhere in Ecuador, but also beyond. Since then you’ve had lots of other different cases and to me, very notable ones are two instances in Aotearoa, i. e., New Zealand, from 2014 and 2017. They use the formulation of legal personality for very specific places and for strengthening the relationship between those places and specific Māori groups. So there are two big models that have developed and also everything else in between. In short, that would be the idea and the application so far.

The Rights of Nature movement is often viewed as a blend of Western law and indigenous cosmology. It's essential to recognize that the concept originated from an academic thought experiment. Tracing back to Professor Christopher Stone's 1970s essay "Should Trees Have Standing? Toward Legal Rights for Natural Objects," its early leadership came from Anglo-Saxon scholars. How do indigenous people connect with this concept?

Well, I mean, there’s debate about that and the last thing I can do is to say what this means to the indigenous. That’s a problematic concept to begin with, as in general it’s used as a moniker for all sorts of different groups that claim this name and also, I don’t think I’m in any privileged position to answer the question. On the other hand, I think there are things you can say without going into such grand claims, and one of them, fairly obviously, is that the concept of rights comes from Western law.

Part of the idea, and it’s the way you framed your question as well, is that putting rights together with nature sort of translates something from indigenous legal traditions . It may or may not be the case, but I doubt that there’s an accurate translation going on. Many indigenous traditions have a completely different way of conceptualising the relationship with the environment that doesn’t rely on rights which are very litigious and individualistic categories.

Now, that being said, in practice and in activism, there has been a lot of mobilization by organized indigenous communities on behalf of the rights of nature. It’s a really complex relationship and I don’t think it’s seen in one way unanimously by people that would claim indigenous ancestry. And again, I think a very interesting example comes from New Zealand where two different indigenous Māori communities have used the idea of legal personality without giving specific rights to strengthen their political and legal relationship with their ancestral territories. Basically, they became the representatives of the legal person, and in doing so they’ve created a space where actual indigenous legal traditions may be expressed in governance. But again, does it mean that the idea of legal personality translates Māori legal traditions? I don’t think so. I think it means that it can be used in a very strategic way to further some goals of indigenous activism in certain parts of the world.

I am interested in exploring whether this direction of thinking could be applied in the case of Europe and identifying its limits. Additionally, I am curious about the extent to which the conception of personhood can foster emancipation within a neoliberal society. Moreover, I ponder whether granting human rights to non-human actors perpetuates anthropocentric schemes or instead challenges them. When do you think it is beneficial to direct our focus toward the rights of nature?

So the first question to be asked for me in any particular context is: what would you do this for? And is this the best mechanism for achieving that goal? To give an example, you can do it for environmental protection. But then you have to be careful as to what you aim to protect. Is it something like wilderness or a national park? And in that case, you have to see whether the legal personality mechanism, the idea of rights, may conflict with the local uses of the territory. If you decide no, it doesn’t conflict, then fine, but does it then achieve the goal of protection? And why would it achieve it better than the national park designation? I think another obligatory question in any context is: Who will speak on behalf of these rights? Who will represent nature as a legal person? And those questions will have different answers in different contexts. I think that, in this respect, practice is always going to be one step ahead of theory. And then the theoretical insights will come from this kind of experimentation in practice, but the danger is that theory will preclude experimentation by presenting the rights of nature as a universal solution.

Do you think that Rights of Nature have the potential to change the Western perspective on personhood?

It’s a really good question. I don’t really know. I mean, we already have a very embedded concept of personhood in Western legal systems, and that, to me, is not incompatible with the idea of rights for nature. I don’t necessarily see the rights of nature having to change the concept of personhood, legally speaking. I think it’s more of a moral question and sort of a philosophical question. And to what extent is a sort of existential or philosophical concept of personhood reflected in Western legal systems? In as much as we understand nature as a person, in terms of it having its own agency, in terms of having what we would call a personality outside of a legal meaning? But I’m not sure that has to be translated in legal terms as such, I think the two can sort of cohabit in the context of Western law.

Could you provide further elaboration on the issue of representing entities beyond the “human” realm? In the words of Astrida Neimanis, while those of us with more privilege may hesitate to speak for marginalized and oppressed groups out of concern for presuming to understand their wants and needs, we also struggle with remaining silent in the face of injustice.

In lots of ways it is a trap, of course, and I suspect you probably have this debate in art more than in politics. I’m not necessarily a fan of neologisms, I don’t think that everything, any new idea or any change to an idea needs a new name. I think new names are precious and they have to be kept for when they’re actually needed. In that sense, I think the concept of representation can and does evolve in ways that are promising.

Classically, and I think this is where the trap is, the idea of representing is that of translating interests in a more or less objective way. So the representative would somehow have access to the interests, needs, preferences of the represented and make them present. And, of course, in political sciences, there are many models as to how this happens etc., but the basic idea is that you take the interest and somehow there’s this conveyor belt that gets it to the representative. And there, especially when you talk about nature, we see a lot of limitations, because there’s no set way in which this model can work. It’s also predicated on this binary between the representative and the represented, in this case it would be a natural environment or entity.

But I think there’s a way of moving further than this and thinking about representation as a kind of performance that happens as a relationship between people and their environment, and that it’s always provisional. It means that representation doesn’t have to be a conclusion, an end point, but rather a process of getting to know each other. In that sense, representation is performed and it can be performed through, for instance, projects of environmental restoration, where, obviously, you need to decide why and what to restore, what part of the environment or not, and all those decisions are reiterative performances where the idea of interest or need must change constantly. That’s a very different flavor of representation that I find really promising.

I personally see it in some restoration or rewilding projects where the goal is not necessarily to fence something off, and protect it as it is. Because that would be a classic idea of representation – what this needs is a strict protection and we know that we’re representing that interest – and instead we could have this kind of reiterative, ritualized engagement with a particular environment where, for instance, prescribed burns should be done every season in order to protect against massive fires and to restore a certain kind of habitat that has to do with plants and animals that are dependent on fire. There are areas of the world, for instance, in North America, where this practice was an indigenous practice that disappeared through settler colonialism and now can be reinvented in a way that forms a representative relationship, yet of a completely different kind, one that depends on constantly doing things with the environment and learning about it through this process.

I don't think we have to focus on translation. Anything you would reintroduce to an environment, if you take the example of animal reintroductions, it will be in an environment that is different from its historical environment, and that is because of climate change, because of the way people have been using lands, because of toxicity and so on and so forth. Already having historical data in our understanding of what that animal or plant needs has to be reinterpreted in light of changing environmental conditions. So what it means to represent the interest of, say, European bison, which is a specific case in the Southern Carpathians in Romania, is different from what it would have meant 600 years ago. To take again the specific example of European bison that have been reintroduced in the Southern Carpathians quite successfully, they are reintroduced in a mountainous forest scenario, though we’re not really sure if that’s what the bison prefer.

On the other hand, that’s where they can be, because the planes are taken up by people to an extent where we cannot cohabit with bison. It would be very difficult for them to live amongst the high density of roads and agricultural fields and so on. So already there we have a new negotiation where we’re saying: this is a space we have and let’s see if they are good with it, if they like it, what they will make of it. So already there, the level of prediction saying that when we do this, this other thing will happen, is very sketchy, because they’re basically exiles in a land they have to learn to navigate and how they do that is a matter of continued observation that then feeds back into how we represent their interests etc. And that doesn’t have any end, especially in an era of accelerated ecological change. It’s just how it must be done.

Do you think that this practice has the potential to cultivate a more egalitarian relationship and politics between humans and non-human entities?  

Yes, and that’s where the interspecies part of your question comes in. It’s really about having a more horizontal relationship and in a way, learning how to ask the right questions of your animal partner as opposed to foreclosing different kinds of behaviors and different kinds of questions by being stuck in one way of investigating the situation. So I think this idea of horizontality is really interesting because it opens up new possibilities.

There are two Belgian philosophers, Isabelle Stengers and Vinciane Despret, who talk about learning to be polite, learning good manners in dealing with your animal partner. What it means to learn good manners is, first of all, trying to understand what good manners are for a bison, how bison society is organized and how different animals approach each other in a way that represents good manners for them. And this observation, framed in this way, allows you to interact in ways that become more meaningful for bison themselves.

Here, a classic example for understanding this idea of learning manners and politeness and what’s interesting for the animal is laboratory animals and laboratory rats. When rats are made to do a maze and solve problems, a lot of times it may be that they don’t perform a certain task, because they’re really bored and the question is not interesting to them. So, by learning more about rats as rats and not as research subjects, you figure out more of what’s interesting to them, and therefore you can pose different questions to them as opposed to a question that they may not find interesting.