Constitutional experimentalism

Published in Insights, The New Zealand Initiative’s newsletter, 10 February 2017

One of the most refreshing developments in New Zealand politics is the sudden appearance of Gareth Morgan’s Opportunities Party. No matter whether you love or loathe Morgan, it is uplifting to have a party that defines itself as an ideas and policy movement.

Having said that, not every novel idea necessarily makes much sense. A case in point is the Opportunities Party’s proposal to grant “the right of our endemic ecosystems to exist and thrive” in a written constitution.

As if the concept of a written constitution were not provocative enough (just ask Sir Geoffrey Palmer about it), Morgan also wants to break with millennia of jurisprudence and grant rights to something other than humans.

If you are only a little familiar with legal history, the concept of rights has traditionally been linked to people. It is people who have all sorts of rights: to their own bodies, to life, liberty, and their property. The purpose of the law, well the purpose of all law really, is to protect people’s rights.

There are just few extensions to this principle, and some of them make sense. Since the times of Roman Law, for example, the unborn child was considered as a person able to have rights. That matters not least for the right of unborn children to inherit property.

Another extension is the creation of legal persons. So companies can have rights even though they are really just a legal fiction. They derive their status of persons from the persons of their owners or shareholders.

Some other extensions are less sensible. For example, in Iceland elves do have rights. Their rights need to be considered when making planning and construction decisions. A few years ago, the New York Times ran an article explaining that Icelandic elves have even halted road building.

The problem is, of course, that elves do not exist. But try telling that to an Icelander.

And now Mr Morgan wants to give nature a right to exist unspoilt. It is a noble thought, and unlike Icelandic elves at least nature does exist.

But it does not change the fact that nature lacks the capacity to act in a legal sense. If nature had rights, it would need someone to speak on its behalf. Someone, for example, to defend New Zealand’s nature’s right against the invasion of non-native species – like cats.

Oh well. But maybe that’s what this policy was really about?


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