Can a river be a legal person?

New Zealand recently endorsed the Maori principle of Te Awa Tupua by granting a new legal status for the Whanganui River. Although many progressives celebrate this recognition of legal personhood as an advance towards sustainability and climate justice, Karl Marx would likely be more sceptical

“I’m the River, and the River is me” is a saying of the Indigenous people of New Zealand, the Maori. Recently, the Māori succeeded in introducing this Indigenous principle into law, Te Awa Tupua (“The River as an Ancestral Being”), recognizing the Whanganui River as a legal person with defined legal rights stemming from the Maori worldview. The Whanganui River has been of significance both economically and spiritually for the Maori, serving as a trade route and a divine ‘Tupuna’ (ancestor) of the community. However, should we really celebrate the River’s newfound ‘legal personhood,’ or does this recognition merely repackage an unchanged relationship of extraction in more progressive language? Karl Marx would probably agree with the latter.

The progressive idea of recognizing the natural environment as a legal subject comparable to human beings was not pioneered by the Te Awa Tupua Act, though it was nonetheless revolutionary in being the first time a River was granted legal personhood through national legislation. Environmental lawyer Christopher Stone made this argument as early as 1972 in his essay ‘Should Trees Have Standing?’ where he pointed out that women and enslaved people were denied full legal subjecthood for centuries. Therefore, the gradual expansion of legal rights to new subjects is not alien to the law’s internal logic. After all, corporate bodies and companies have long enjoyed legal personality and compared to the legal imagination required to treat corporations as people, recognizing a River as a legal person may be one of the least imaginative stretches lawyers have ever made.

Karl Marx, one of history’s most revolutionary thinkers, would have raised an eyebrow and maybe flipped a table at how modern society ‘claims’ to treat nature. Marx’s core argument revolves around the critique of the capitalist mode of production, which he viewed as a historically transitory system that prioritizes the accumulation of abstract exchange-value (profit) over the qualitative wealth of nature and human needs. Capitalism dominates systems through what he identified as a process called reification, which ultimately refers to how our social relationships appear as "material relations between persons and social relations between things". In other words, the human and ecological relations that give rise to commodities fade into the background, while the commodities themselves take center stage, appearing autonomous and strangely capable of organizing social life on our behalf. As a result, this inherently capitalist system drives us to what Marx described as a "blind and measureless" quest for accumulation, where due to our lack of conceptualizing our social relations outside profit, we are forced to exploit anything social and natural for immediate monetary benefit.

But don’t panic, you’re not personally a cartoon capitalist villain, because Marx identifies how in his ‘inverted world,’ we are also naturally “bearers of commodities,” meaning that in a system where goods can’t move themselves, we become the agents who carry them and make their value real. Living like this shapes how we think, where we start to see ourselves through the logic of the market, that is: being a well-behaved economic subject, simply to survive within a system governed by capital. When this rationality is generalized across an entire society, exploitation becomes human nature as instead of humans consciously and collectively regulating their interaction with nature, they function as ‘bearers’ of the very objects that have attained an alien power over them, questioning whether there is even a way to protect and conserve nature.

You can probably now imagine how the designation of the Whanganui River as a ‘legal person’ may not make Marx rejoice in his grave over the dawning of a post-capitalist era. Marx would view this process as less of a rupture with capitalism and more of an ideological sleight of hand. Legal personhood functions as a formal solution to a material problem in an ‘inverted (capitalist) world’, which is that it changes the River’s status on paper while leaving intact Marx’s same idea on systemic exploitation, or rather, the underlying ‘robbery system’ of capital.

To further prove that you, reader, are no capitalist loon (unless you are a billionaire who I would sincerely question why you are self-loathingly reading a Marxist blog), Marx explains how systemic exploitation is quite synonymous to how elites maintain power, which is by shaping the economic and social order to their advantage, ‘robbing’ the original sources of all wealth (nature and workers) to sustain and replenish the material conditions that underpin a capitalist society. In Marx's 1859 Preface to ‘A Contribution to the Critique of Political Economy,’ he identified how the substructure (the system of production in society) forms the foundation, while the superstructure (the political, legal, and ideological institutions) arises to justify and reinforce it, or as he puts it:

…each special mode of production and the social relations corresponding to it… the economic structure of society is the real basis on which the juridical and political superstructure is raised and to which social forms of thought correspond; the mode of production determines the character of social, political, and intellectual life generally…”.

Law, according to classical Marxist theory, belongs to the superstructure, where it merely reflects and stabilises the underlying material relations of production rather than standing above them as a neutral arbiter of justice. The beard legend himself was clearly on to something, as Te Awa Tupua as a legal Act indeed did not arise in a vacuum. It was a direct result of a Treaty settlement negotiation between the New Zealand Government (who represented the Crown) and the Whanganui Iwi and Hapu (the Maori who occupied the Whanganui River region centuries before the European settlers arrived), which aimed to address the Crown's unilateral assertion of authority over the River and the subsequent obstruction of traditional Māori practices. As a result, Te Awa Tupua employed legal personhood as a form of reconciliation within a colonial legal framework in order to mediate between Indigenous claims and state authority, and it precisely did that through mandating there be a ‘human face’ to the River (Te Pou Tupua) that is comprised of two persons: one appointed by the government, and one by the Whanganui Iwi.

Despite the idea behind Te Awa Tupua being a reconciliation act, whether it can truly give the River a voice in the legal system depends on the co-governance processes between the Maori and the Crown. Although progressive, an inherently capitalist anthropocentric legal system that is built on the colonial extraction of Indigenous land can only ever go as far as there continues to be a dominant elite, which in this case, would be the Crown (shocking).

The bourgeois promise of freedom and equality as an end to domination becomes a delusion, because capitalism replaces personal domination with an impersonal, ‘reified’ one. Using Marx’s famous example: a free worker is not exactly ‘free’ as they are compelled to sell their labor power to survive within a capitalist system. Similarly, a legally recognised River is invited to participate as an ‘equal’ within a system that ultimately only understands value as exchange-value in capital. River personhood risks becoming an extension of what Marx described as ‘commodity fetishism’: social and ecological relations are transformed into legal abstractions, masking ongoing exploitation. By forcing nature to enter an anthropocentric legal system, the law doesn’t humanise the River, but rather further objectifies it, translating living ecosystems into recognisable units within a capitalist framework that is fundamentally exploitative.

The River is still ‘speaking’ in a courtroom designed to translate everything into exchange-value, but maybe some confetti can break out at the words of Christopher Finlayson, the Minister of Treaty Negotiations for the legal personhood of the Whanganui River settlements and the subsequent Te Awa Tupua Act:

It is easy to get disheartened by some of the environmental problems confronting us in 2020. But we have two options: get apocalyptic or do something.”

Photo of Dana Ahmed