Stories

By Chuck Powers

The first major theoretical work written by a sociologist was Emile Durkheim’s The Division of Labor in Society (published in France in 1893). The central argument of the book was that 19th century industrialization threatened the integration of French society by enfeebling the collective conscience; that is, by undermining shared understandings about how people should conduct themselves.  Durkheim initially worried that enfeeblement of collective conscience would result in society’s disintegration, but after two years of investigation he concluded that, in addition to enfeebling collective conscience, France’s industrialization was also associated with an expansion of civil law which promoted integration by offering a new mechanism for people to repair fractured relations without reverting to blood feuds or vendettas.  This insight resonated with the concept “form follows function” which was the theoretical underpinning for many scientific advances of Durkheim’s time, and provided a starting point for structural functional thought in sociology.  By the conclusion of The Division of Labor in Society Durkheim (a) was committed to the view that sociology must not be limited to the study of individual people, but must also treat social systems as distinct units of analysis, (b) had begun explicitly asking how, why, and by what process social systems manage to settle on changes which increase their problem-solving effectiveness and resilience in the face of challenging circumstances, and (c) came to recognize that legal and administrative codes are excellent data points for a sociologist trying to understand purposeful structural change in social systems.  This was sociology’s real beginning as a discipline.

A number of early sociologists who shared this focus understood that the consequences of social system change can be quite dysfunctional.  Perhaps the best illustration of this is found in Vilfredo Pareto’s The Transformation of Democracy (published in book form in Italy in 1921).  Pareto understood that treasured institutional forms (such as democratic elections) can be kidnapped by powerful interests, and that this can have disastrous consequences.  But by the mid-20th century, many structural functional theorists stopped trying to explain why change is sometimes functional but at other times quite dysfunctional, and instead, began operating on the fallacious assumption that observable characteristics of social systems can almost always be presumed to have developed in order to help society deal with challenges.  This view, however, is simply not valid, and structural functional thinking fell out of fashion because so many people started to associate it with blind endorsement of the status quo and knee-jerk opposition to change. [The idea that a social system can or should remain stagnant and unchanging is of course antithetical to the most basic premise of structural functionalism, that we should try to understand how social systems can manage to change in positive ways when serious problems (for example, global warming) are not being adequately addressed.]   The theoretical question is still the same, but in recent decades has sometimes been addressed more effectively by legal scholars and environmentalists than by sociologists. That enduring question is: What societal conditions or processes influence whether resulting institutional change is likely to be functional or dysfunctional from the standpoint of the well-being and resilience of society as a whole? 

My current work focuses on the evolution of cross-national differences in environmental law.  A major legal question of our time is whether the environment itself (as distinguishable from the people or corporations who are deemed to own parts of the environment, or are allowed to profit from parts of the environment) should enjoy any “legal standing.”  Legal “standing” is the right to seek court protection against harm at the hands of others and to have one’s interests weighed when legal matters are being adjudicated. Without legal “standing” there can be no appeal to courts for protection. When people discuss the concept of “equal access to justice for all” in utopian terms, they are really envisioning legal proceedings which aspire to provide equal access to justice for all those people and entities (such as corporations) with “standing,” excluding direct consideration of interests of people and entities which lack standing.  An important matter being debated on a global scale RIGHT NOW is whether eligibility for legal standing should be extended to ecosystems, and this is the subject of much of my current work. I have been driven to this topic because of my concerns about the environment, but this is also a way for me to address, with contemporary data, what is probably sociology’s longest-standing but unanswered theoretical question. What societal conditions or processes influence whether resulting institutional change is likely to be functional or dysfunctional from the standpoint of the well-being and resilience of society as a whole?    

Extending legal standing to nature was being given some consideration in the United States as early as 1971 when the Supreme Court of the United States (SCOTUS) heard the case of Sierra Club v. Morton.  (This case was heard in late 1971, and the Supreme Court’s ruling was issued in early 1972.)   The case came about after the U.S. Department of Interior granted a series of administrative wavers in order to enable developers to begin construction of a large ski resort near a national park.  The Sierra Club, with Christopher Stone serving on its legal team, sought court reversal of those administrative decisions because of the environmental threat construction was expected to pose. But in its majority decision the Supreme Court held that nature had no standing on its own (apart from the property interests and other interests of living persons or corporations.  [Associate Justice William O. Douglas wrote a clearly worded dissent endorsing the Sierra Club’s position, and calling for extension of “standing” to nature, but his view was a dissenting position.] 

In marked contrast to the United States, the nation of Aotearoa/New Zealand recently extended legal “standing” to three identifiable places and the ecosystems of those places.  The first of these legal developments was The Te Urewera Act (Act of Parliament of New Zealand 2014) granting legal personhood and “standing” to a large part of the rugged Urewera forest of northeastern Aotearoa/New Zealand.  The Act explicitly states: “Te Urewera forest is declared to be legal entity; Te Urewera is a legal entity, and has all the rights, powers, duties, and liabilities of a legal person... ” and “the rights, powers, and duties of Te Urewera must be exercised and performed on behalf of and in the name of, Te Urewera” (Act of Parliament of New Zealand 2014; Te Urewera Act, Part I, Subpart III).  The legal reality is that the Act gives the forest to itself, so that the forest can belong to itself, speak for itself, and press interests in court for its own long-term protection and preservation and the preservation of its ecosystems and biodiversity. In other words, The Te Urewera Act granted a large New Zealand forest the kind of legal voice which SCOTUS categorically denied to nature in the USA in the case of Sierra Club v. Morton. 

The Te Urewera Act (it seems to me) is a very good illustration of the kind of functional institutional change early structural functionalists originally wanted to understand.  It turns out that understanding how the Act came to be passed requires that we consider the intersection of dynamics understood to be important by conflict theorists (especially long-standing conflict between New Zealand’s colonial and national governments and the indigenous Māori people of Aotearoa/New Zealand), symbolic interactionists (especially sense making and social construction of shared meaning about the fragility of the environment and humankind’s dependence on the environment), as well as structural functionalism (especially feedback mechanisms and the purposeful development of institutionalized decision-making and dispute resolution with the aim of protecting the common good).  In this respect, Aotearoa/New Zealand’s extension of legal rights to nature offers case material on which to envision a long-overdue paradigm shift in sociology, suggesting a replacement of the view of different paradigms as mutually exclusive with an understanding of different theoretical orientations as mutually informing. 

Legal change in Aotearoa/New Zealand provides other data points as well.  A short time after passage of The Te Urewera Act, New Zealand’s Parliament extended legal “personhood” to the Whanganui River (Act of Parliament of New Zealand 2017). Although the law itself is often represented by international observers as a straightforward conveyance of personhood to the river, without much else involved, change in the legal status of the Whanganui River marks some kind of resolution for what is said by many to have been the longest continuously running legal and administrative dispute anywhere in the world in modern history, in the form of a legal and administrative dispute pitting indigenous Māori people against British settlers and colonial administration since roughly 1875.    

Then, late in 2017, in an administrative understanding entered into by New Zealand’s national government and Māori leaders, Mount Taranaki was removed from Egmont National Park and ownership of the mountain was conveyed to the mountain itself, and legal “personhood” was explicitly bestowed onto that mountain in the process (Record of Understanding 2017).  The Record of Understanding imbues the mountain with legal “personhood” status for its own protection, and also solidifies the mountain’s centrality as an important focal point of indigenous Māori identity. Institutional arrangements created to give voice to Mount Taranaki, like those created to give voice to the Whanganui River, were modeled on those created for the Urewera forest.

From a purely ecological point of view, the extension of legal “personhood” with “standing” to Urewera forest, the Whanganui River, and Mount Taranki are widely recognized as having global significance.  To begin with, these places now have legal voice and legal rights roughly comparable to rights which have been long enjoyed by corporations. This means these places (via their appointed human representatives) can appeal to the legal system for court review and possible protection when actions by humans or corporations threaten what remains of the natural conditions of those places.  This is a game-changing legal development, not because it assures nature will always prevail over other legal entities in a court of law, but because (at least in these three places) nature finally has a right to at least have its voice heard and its interests weighed along with whatever else might be relevant interests of the other persons or entities also having “standing” in legal proceedings concerning ecosystems.  And these developments are important to the planet because the New Zealand’s actions have been careful enough and thoughtful enough to provide other nations with a template for practical action and not merely a philosophical statement of a utopian idea. Energy is now building for extension of Aotearoa/New Zealand’s model in many countries, on a local level in many places in the United States, and on a global level for protection of ocean environments.  This is very interesting, very exciting, and very promising for a planet under environmental attack from within. 

Aotearoa/New Zealand’s recent acts of parliament and conclusion of administrative understandings does not end legal evolution.  A lot of work remains to be done by people in Aotearoa/New Zealand as they determine how the new laws and provisions will be interpreted in concert with New Zealand’s overall body of law.  I am leaning a good deal about these aspects of the law (globally, but with particular focus on New Zealand, where change has progressed the farthest) and also about other trend-setting work (globally, but particularly in New Zealand) on matters broadly related to regenerative agriculture.