The Reality Bubble

by Ziya Tong

  That non-human life forms have their own forms of intelligence is something that scientists are just beginning to understand. It is fortunate, then, that around the world, rights are increasingly being granted to non-human life forms in a legal effort to protect them. Nature may not have a voice per se, but by giving the natural world a “right” its interests can at least be defended in court and it can have legal standing.

  In a historic ruling on April 5, 2018, Colombia’s supreme court did just that and changed the status of the country’s portion of the Amazon basin so that it became an “entity subject of rights,” essentially giving the ecosystem the same rights as a human being. After years of rampant destruction from illegal mining, logging, and agricultural expansion, including drug crops, the Amazon was being robbed and its resources sold off. From 2015 to 2016 alone, deforestation increased by 44 percent to 70,074 hectares, or about the size of New York City. By granting the Amazon rights, this rainforest will have legal rights so that it can be protected and defended.

  Similarly, in March 2017, the Whanganui River in New Zealand was granted the legal right of “personhood.” For the Māori, who have sought respect and justice for the river for over 150 years, it has never been a “thing”; it has always been an essence of life, a vital part of the community. The indigenous peoples of the area—the Whanganui River iwi, or tribe—have a traditional saying: “I am the river and the river is me.” Which, as we saw in Chapter Two, is supported by science: we do have a physical connection to the world even though with the naked eye you cannot see it. In The Rights of Nature, David R. Boyd explains the Māori philosophy called whanaungatanga:

  Whanaungatanga is actually broader than kinship in the sense that it relates not only to relations between living humans, but also to an expansive web of relationships between people (living and dead), land, water, flora and fauna, and the spiritual world of atua (gods)—all bound together through whakapapa (genealogy). In other words, the Māori believe that all things in the universe, living and dead, animate and inanimate, are related, going back to Papatūānuku (the Earth), and Ranginui (the sky). Thus all the elements of nature are kin.

  What New Zealand’s Environment Court recognized is this basic but powerful connection: people are made of the water; they drink water; and ultimately “to pollute the water is to pollute the people.” Unlike Colombia’s Amazon, however, the Whanganui was granted a dedicated committee of human representatives to defend its rights. Furthermore, if industry should wish to divert the water’s natural flow, that could be deemed a violation and its guardians could petition the court to defend it.

  The idea that forests, mountains, soil, rivers, and oceans are not merely human property has not gone unchallenged. While over three dozen US communities currently have rights-of-nature ordinances to protect their local ecosystems, big business has also brought in its own top-gun lawyers to defend its land rights as well.

  In Pennsylvania, an ongoing David and Goliath battle between the Grant Township community and Pennsylvania General Energy (PGE) has been raging for over six years. The issue at stake is the Little Mahoning Watershed, home to a range of fish, freshwater mussels, aquatic insects, the eastern hellbender salamander, and, vitally for the locals, the key source of their drinking water. In 2014, however, as part of the state’s fracking boom, PGE received permits to dispose of its wastewater in deep injection wells. For the community, whose drinking water comes directly from private wells, a daily underground injection of over 150,000 litres of toxic and radioactive fracking water represents a risk to their water supply they are unwilling to subject themselves to—especially considering earthquakes have been a well-documented result of the fracking process.

  In court, PGE’s lawyers argued that the idea that the Little Mahoning Watershed should have rights through the community ordinance was “absurd” and a “circus act,” claiming that “a watershed lacks consciousness, intelligence, cognition, communicability, or agency. The Watershed cannot decide to intervene, cannot accept representation or engage with counsel as a client, and cannot appear in court or testify.” On January 5, 2018, federal judge Susan Paradise Baxter ruled in favour of the corporation, calling the attempts by the Community Environmental Legal Defense Fund “unreasonable” and “implausible,” and saying that such an approach “creates enormous expense to parties and taxes limited judicial resources.” The executive director of the fund and the team’s legal attorney were fined $52,000, to be paid back to PGE. Further disciplinary measures were also forwarded to the disciplinary board of the Pennsylvania Supreme Court for consideration, including the suspension of attorney licences and even disbarment.

  But is fighting for the rights of nature really a mockery of the courts? The irony of the situation is that corporations are just as much of an artificial construct, if not more so, than a living ecosystem. As David Boyd points out, “Many of the same arguments [of PGE’s lawyers] used to attack the watershed’s standing are equally applicable to their own client. A corporation is a legal fiction, lacking consciousness, intelligence, and cognition. It is incapable of doing the things the corporate lawyers suggest an ecosystem ought to be able to do, such as testify in court. It is remarkable that PGE’s lawyers could describe watersheds as ‘artificial constructs’ while simultaneously believing that corporations are real persons to whom rights naturally belong.”

  But legally, corporations are “persons.” They have almost all the same rights as people do. In the United States, that includes equal protection, religious liberty, freedom of speech, freedom of the press, freedom from unreasonable search and seizure, the right to trial by jury, the right against double jeopardy, the right to counsel, and due process, to name a few. We’ve believed in this idea for so long, we barely question it. As Adam Winkler writes in his book We the Corporations, corporations gained their first rights in 1809, half a century before legal rights were championed for African Americans or women. But here’s the rub: while corporations do have rights, without a physical body they do not suffer the same penalties as humans. A corporation can do wrong, but a corporation cannot go to prison.

  At the same time, our closest biological cousins, chimpanzees, which share 98.8 percent of our DNA, have had their right to personhood denied by US courts multiple times. So why—if its okay for a corporation to be a person—is it not okay for a living animal or ecosystem to attain those rights? The answer is that we have relegated animals to the status of property, somewhat above the status of inanimate things, but not much.

  Still, you can love your property. There are certainly dairy cow farmers, for instance, who show deep care and affection for their animals; not every farmer subjects their animals to factory-farm cruelty. But this does not address the relationship between cow and farmer, because the cow is still owned. It’s property. The cow is not free.

  And property, whether it’s an object, a cow, or a slave, does not have right of movement without the owner’s consent. “It” cannot change its conditions even if it’s unhappy, because it has no rights. The key point here is that rights are incompatible with ownership when it comes to living things. After all, if rivers and chimpanzees have rights, what’s next? Will our bacon and eggs demand freedom? Our lumber and paper? Our leather shoes and our wool sweaters? All of this life, or extinguished life, is defined as our property to do with as we please. To begin to question that fundamental authority of our ownership of life would be to upend our whole system of thinking. That’s because the core tenet of our entire economic system can be eviscerated by asking one simple question, which is: What does it even mean to “own” something anyway?

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  JUST BECAUSE YOU HAVE paid money for something does not necessarily mean you own it. Martha Fuqua learned that lesson first-hand when she bought a box of assorted goods for $7 at a West Virginia flea market. Inside the box was a plastic cow, a brown leather doll, and a napkin-sized oil painting by one of the greatest artists that ever lived. Fuqua did not
know it at the time, but it was a Renoir, and on having it appraised she learned its value was upwards of $100,000. When word spread about the discovery of the small masterpiece, however, another potential owner soon staked a claim: the Baltimore Museum of Art asserted that Landscape on the Banks of the Seine was their property and had been stolen from the museum in 1951. After hearing of the museum’s claim, the Fireman’s Fund Insurance Company also got involved. They had paid the museum a $2,500 settlement on the theft and so had a strong case for legal ownership themselves. In this instance, the object changed hands multiple times but had three different “owners.” So, who owned the painting?

  A judge ruled that the rightful owner of the Renoir was the museum. The case required a judge, as many property-related disputes do, because the question of who owns what is rarely simple. In some countries, property litigation accounts for as much as 66 percent of annual court cases. The disputes range widely, from who owns a dead man’s emails to who owns human genes to who owns the family dog. The question of who owns what is critically important to us, because not only do the things we own define our social status, they define us internally as well.

  The psychologist William James was the first to posit that we have a “blind impulse” to form attachments to things, that our objects and property become in a sense part of our material identities. That is, the things I call “mine” extend beyond my physical body outwards to my clothes, my family, my house, my garden, and my car. Each of us exists as the epicentre of our stuff, and while many of these things are inanimate, they affect our emotions. As James wrote in 1890 in The Principles of Psychology, “A man’s Self is the sum total of all that he CAN call his, not only his body and his psychic powers, but his clothes and his house, his wife and children, his ancestors and friends, his reputation and works, his lands and horses, and yacht and bank account. All these things give him the same emotions. If they wax and prosper, he feels triumphant; if they dwindle and die away, he feels cast down, not necessarily in the same degree for each thing, but in much the same way for all.”

  Flash forward to the twenty-first century, and marketers and retailers are well aware that we see products and things as extensions of our physical selves. Studies have shown that merely touching an object is enough to create feelings of ownership, which is why people are encouraged to use samplers, to try on clothes, or take out cars for test drives.

  The process takes place very quickly. When you walk into a store, you are fully aware that none of the objects there belong to you, but once you get to the cash register and pay for an item, the object instantly changes, not physically but in your mind. Now, it belongs to you. As Gail Wynand, the newspaper tycoon in Ayn Rand’s novel The Fountainhead, put it, “I am the most offensively possessive man on earth. I do something to things. Let me pick up an ashtray from a dime-store counter, pay for it and put it in my pocket—and it becomes a special kind of ashtray, unlike any on earth, because it’s mine.”

  Psychologists even have a name for this phenomenon. It’s called the “instant endowment effect,” and it marks the sudden attachment to an object we develop once we own it. The ownership effect is even visible in the brain. Using fMRI scans, scientists have found that when a person thinks of an object they own versus one owned by someone else, their medial prefrontal cortex lights up. This is the same area of the brain associated with “self-referential processing,” and it activates when we hear our name, recall autobiographic memories, or remember our personal preferences.

  Humans are certainly not alone in our drive to protect objects and defend territory; other animals are known to have a rudimentary understanding of exchange and possession. Bowerbirds, for instance, collect colourful trinkets to display by their nests, coconut octopuses will fight each other over coconut shelters, and high-ranking baboons respect the rights of possession of other troop members and will not take an object away from another baboon, even a low-ranking one, if he or she was in possession of the object first. So it seems there is some genetic basis for possession in the animal kingdom, but absolutely nothing that compares with the acquisitiveness of humans. While other animals have territories and shelters, we are the only species with such a vast number and variety of possessions. Most animals travel light; most humans are bogged down by their “stuff.”

  Our stuff may, however, be one of the keys to why our species is so powerful. As naked apes roaming the open savannah, we relied on our big brains for survival, and three hundred thousand years ago, some of the first objects we created were weapons such as arrows and spears. These became our first possessions. Hunters would have cherished and used their best weapons again and again, and from this perspective it makes sense that our early possessions were vital for survival.

  As our species became increasingly sedentary, the drive to accumulate stuff went up. Archaeologist Gary Feinman argues that storing surplus was a way to minimize risk, because as “people settled down, they became more susceptible to environmental disaster.” With families each stocking up on supplies, people’s relationships were reinforced with trade, and the “exchange of non-necessary goods” became a way of strengthening ties with one’s neighbours.

  Today, ownership is considered a human universal. It is found in all cultures, though there is significant cultural variation. So while it could be said that ownership has evolutionary roots, much about ownership, particularly its rules, is learned rather than innate.

  We begin to learn those rules early. As everyone knows, the concept of “mine” becomes very important to toddlers. Developmental psychologists have found that children as young as eighteen months can distinguish the difference between something they are in possession of versus something that belongs to them; and by two years they can reason that ownership belongs to the person who acquired something first. This notion of “first possession,” as we shall see, is one of the primary ways in which adults define legal ownership.

  To start, however, we should remember that ownership does not exist in a vacuum. It ceases to exist if there is no other person in the picture. From a psychological standpoint, “objects are claimed to distinguish them from something belonging to the other…Without the presence of the other, the need to label objects as ‘belonging to me’ or ‘not belonging to me’ disappears.” Or to put it another way: if you were alone on a desert island, everything would belong to you and nothing would belong to you; it simply wouldn’t matter. Until, that is, someone else showed up. Once there is another person in the picture, we can begin to assert our rights with respect to what we own. And children by the age of two or three can be seen defending the “rights” to their property. In a study where toddlers watched puppets throw objects into a garbage bin, for example, the children were fine if a puppet threw away its own property, but they vehemently protested when it threw away an object that belonged to them. Recognition of others’ right to property begins around this age as well. Two-year-olds would watch without protesting if a puppet threw away an item owned by a third party, but by the age of three they would object at this violation of someone else’s ownership rights.

  So how do children decide what is theirs and what is not? First possession is the simplest rule, but it depends on how that possession was acquired. In an equal setting, with an object that belongs to no one, it’s the kindergarten rule of “finders, keepers.” As Shaylene Nancekivell, a cognitive psychologist at the University of Michigan, notes, this is why “collecting seashells lying on a public beach is acceptable, [while] helping yourself to seashells sold at a beachside stand is not.” The vendor found them first and has the right to sell them. But in a world where most items are bought in store transactions, we seldom move beyond autopilot to think about who owns what. If one begins to consider the question, however, as cognitive development psychologists have, it becomes clear that “ownership is not a ‘natural’ property of objects, but is determined by human intentions” and that “facts about who owns what may be altered by appropriate decisions.”


  In the journal Cognition, Max Palamar and his colleagues explored this idea of ownership and intention by using the thought experiment of a feather sitting atop a cactus. In one scenario, someone called Mike wants the feather, so he uses a stick to dislodge it and it flutters down. Studies on this kind of ownership reasoning have found that most people will deem Mike the rightful owner of the feather. But if Mike bumps the cactus by accident and the feather falls just as Dave happens to walk by, and Dave picks it up, well then the rules change. Dave becomes the rightful owner of the feather because Mike had less direct responsibility for getting it.

  History is another factor in deciding who owns what. As stated earlier, by the age of two or three most children already have a basic understanding of the ownership rule. To test this, toddlers were given identical toy cars to play with, and after playing alongside each other for a while, they had to tell the researcher which toy belonged to them. Two-year-olds had difficulty telling ownership since the cars all looked the same, but the three-year-olds were able to track their own toys by intently following the history of exchanges between their car and the cars of other children.

  But history and primary possession alone are not the only ways we come to reason who owns what. If an object has an identifiable creator, that also affects our ideas of ownership. First possession, for instance, can be trumped by creative “investment” in an object. In a study looking at this behaviour, children were given Play-Doh and told that it was theirs to keep after the experiment was over. During the experiment, however, they were asked to swap their clay with the experimenter, and each would use the other’s clay to shape an object. For the children, once the object was made, say a clay dinosaur, this new condition trumped first possession. Even though the clay was borrowed, the creative labour invested by the borrower made them the rightful owner of the object, and a transfer of ownership took place because of it.