Reconstruction of Ethics: Nature as a Subject of Rights

Abstract

The recognition of the rights to a new subject, nature, and its moral consideration requires an ethical analysis for the theoretical-legal construction. In anthropocentric thought, the relationship between humans and living beings is discussed from the definition of their power and hierarchy towards the environment. In contrast, Andean philosophy surpasses the vision of an independent rational subject, alien to nature and reaffirms its interconnection, interdependence and cooperation between all living beings in the community, with a fundamental approach to the care of life. Against this background, this question was proposed: Does the existing value scheme in today’s societies ensure the vital processes of nature? or is it necessary to change the ethical-moral paradigm in which nature is subject to rights? This work, considering the Andean philosophy and ancestral knowledge, the path of intercultural interpretation of human-nature relations marked through the jurisprudence of the Constitutional Court of Ecuador that recognizes the ethical and moral principles that regulates them, which proposes the use of natural resources in a sustainable way, avoiding their exploitation and guaranteeing the survival of species and ecosystems. A combination of the historical, comparative, analytical, and argumentative method was used as an investigative method.

1. Introduction

Is the existing scheme of values in today’s societies sufficient to ensure the vital processes of nature? or is a change of ethical-moral paradigm necessary in which nature is the subject of rights, not the object of rights? In the light of this question, it is proposed to analyse the approach of Andean philosophy and ancestral knowledge, the ethics of Good Living (founded on the principles of relationality, correspondence, complementarity, and reciprocity between man and nature), and the philosophical bases of Andean culture with its ancestral knowledge about Pachamama. Thus, in contrast to these approaches, anthropocentrism, biocentrism, and ecocentrism are analysed from the axis that relates to man and nature. The jurisprudential analysis of the sentences issued by the Constitutional Court of Ecuador is also proposed, which marks the path of intercultural interpretation of human-nature relations. Likewise, the ethical and moral principles generated in the relationships recognised in a transversal way in Andean philosophy allow us to mark the emergence of a new normative behaviour, totally distant from economic extractivism, as the foundation of the capitalist system, towards an economical form of subsistence characterised by respect and harmonious coexistence of the different elements that coexist in this world. To this end, a combination of historical, comparative, and argumentative analytical methods was used to analyse Western thought and an amalgam of oral and symbolic transmission of the sayings of the village elders to the vision of Andean philosophy¹ and ancestral knowledge.

1.1 Initial discussion on anthropocentrism

From the beginning of humanity, the fear of the unknown and the struggle to survive were a motivation to know the human and to coexist with non-human entities. The Greek tradition discussed human-animal and society-nature relations and identified humans and nature with the divine and animals as inferior entities. This initial sacred, eternal, and spiritual vision was surpassed by another that left the spiritual outside of nature and transferred it to the sacred temples. In the Middle Ages and the Renaissance (XIII and XVII), the human being was considered the most virtuous of all species that inhabited the earth and administered goods, animals, and the natural environment (in a limited way since complete dominion was exclusive to God) [1]. Nature, with its domestication, became an exploitable and external resource, subject to modification (raw material) for economic purposes and subject to market laws. It was accompanied by philosophical thought, which limited morality to man alone and preserved the natural world under a utilitarian conception. It considered man the absolute master of nature, whose progressive and rational mission was to dominate, use, and abuse it without limits.

However, the dominion is not for all, but only for some because the same human beings attributed to themselves characteristics that served the physiognomists to classify them hierarchically [2]. Psychic and moral characters were deduced from their resemblance to a particular animal. After passing through Gall’s phrenology [2], together with Lombroso and the positivists [3], it was a tradition that entered the legal field to give scientific status to criminology, consecrating aesthetic values as the basis of racist hierarchies and associating the ugly with the bad or primitive [4].

For Plato, the separation between body and soul and contempt for the body prepared capitalism, and [5] simultaneously relegated the animal and the human—for its corporeal dimension, close to an animal condition—to the state of pure body. The human was not to worry about earthly suffering because his destiny was in his soul, and he would go to paradise [6]. The human concerned with the body, as vanity, was the closest criminal to the animal. In this environment, Sir Francis Bacon (1561–1626) introduces his concern for nature by comparing character with the inmates: science tortures nature, as the Inquisition did with its inmates, to reveal the last of its secrets… [7].

For his part, René Descartes (1596–1650), in the fifth part of his Discourse on Method, summarised his book Treatise on Light [8] and concluded that animals and the universe were machines regulated by laws. Animals lacked a soul, or if it was admitted that they had one, it was very different from that of man. Therefore, they could not be punished, nor was there any obligation in this regard; on the contrary, they were objects of human domination and had no rights, ethics, or legal limitation. As for the universe, everything was reduced to matter (extension) and motion [8]. In addition, he referred to God as the great clockmaker of the world, responsible not only for building the universe but for keeping it running. When analysing the method of incipient modern science, he said that the human being must become the owner and possessor of nature [2].

Schuld considers danger as the basis of inquisitorial punitive power. Nonhumans were animals, and the criminals, heretics, women, and inferior colonised humans were half-animals to be protected by superiors. In contrast, others had to be eliminated to prevent them from destroying humanity. This originated a stage characterised by political and legal domination over the subjected peoples to satisfy the interests and needs of the imperial economy.

Enlightenment and liberal philosophical thought of the eighteenth and early nineteenth century and all modernity did not consider the animal as a machine. The Enlightenment had two contradictory bases: an empiricist one that gave rise to Bentham’s utilitarianism and an idealist one, proper to Kantian rationalism. Kant limited ethics and the right to human relations [9]. However like Hobbes, he excluded not only animals from the contract but also some human enemies because (understood as autonomy) he could decide what would make him happy and pursue it without obstacles by making use of his freedom unless another had been granted the power to determine through a covenant [10, 11]. In one of his 1983 book, The Case for Animal Rights, the author Tom Regan corrects Kant by asserting that every living being must be considered or treated as an end in itself, not only those endowed with a moral conscience, as Kant claimed [12]. He based this assertion on the fact that many humans do not possess a moral conscience—such as very young children and the severely mentally disabled. This is the basis from which he builds the principle that no living being should be treated as a means to serve other people’s ends.

Then, from the chronological review of the philosophy underpinning anthropocentrism, it can be concluded that knowledge is based on reason—knowledge contained in science and the construction of ideas. Thus, anthropocentrism uses the scientific method and denies everything that cannot be demonstrated. Furthermore, it upholds the separation of the mind from the body and emotions. It poses the denial of the spirit or the soul to justify power and its hierarchy regarding the environment.

1.2 Notes on biocentrism

Biocentrism, as a philosophical stance, seeks to expand the limits of morality towards non-human living beings and organisms, granting them value and respect for sharing a common element, life. For this, it considers: a) the capacity, or not, to feel as a moral criterion for using species and b) the intrinsic value of each species regardless of the attributes of its life.

In this sense, concerning the capacity or not to feel, we have Bentham’s utilitarian discourse in which he proposes the greatest happiness for all. He seeks to avoid pain in sensitive beings such as animals, thereby summoning their respect and recognising their rights. This was continued by Henry Salt, who published his book Animal’s Rights in 1892. Also, Peter Singer, in 1975, in his book Animal Liberation, proposed avoiding animals’ cruel treatment or experimentation as part of the animals’ rights. In this environment, a French philosopher, Michel Serres, tested the thesis of the creation of subjects and concluded on the need for a contract with nature [13].

On the other hand, regarding the intrinsic value of each species regardless of the attributes of its life, the author Charles Darwin, in his theory of evolution, referred to the survival of the fittest, understood as the most fertile and not as the strongest in the physical sense. Therefore, in evolution, competition should not be privileged but rather cooperation. Nature selects the fittest individuals and eliminates the least favourable variations [14]. Symbiosis recognition as an essential evolutionary force has profound philosophical implications. All macroscopic organisms, including ourselves, are living proof that destructive practices ultimately fail; only creative individuals who know how to cooperate and progress survive [15].

On the other hand, according to the law of natural selection (nature selects the most suitable individuals, eliminating the least favourable variations), Herbert Spencer, manager of subhuman justice, concluded that it was necessary to apply the same rule to humans through the homogeneous or the heterogeneous. On the other hand, they could evolve from cosmogenesis to humans, clearly divided between the white superior and inferior races. However, the tutelage of the most biologically evolved race was necessary for this [16]. Evolution was a process in which, according to positivism, the half-animals of other races were to be protected by the superiors (neocolonialism), and within the race itself, the inferiors (the delinquent half-animals) were to be eliminated, by either natural or artificial selection. The latter must be understood as the evolutionary process by which humans consciously select for or against certain characteristics.

Based on each species’ intrinsic value, egalitarian biocentrism appears, establishing that every organism is a teleological centre endowed with uniqueness, an individuality whose final cause is to pursue its good [17]. This position defends substantial equality between all forms of life without considering the proper values of nature and all forms of life and their inequalities. Thus, for example, an ant is not the same as a person; rights that do not focus on individuals but on species or ecosystems are generated.

In contrast, hierarchical biocentrism conceives of a community of human and non-human living beings linked together by vital independence rather than a relationship of ranks in which humans are superior. Taylor, on his part, posits the belief that humans are not inherently superior to other living things, implying their equality [17].

James Lovelock states that the Earth regulates, maintains, and recreates life conditions using living beings. It is evident that we could not survive without living beings that supply oxygen, and they could not survive without us, as we produce their nutrients. In fact, he claimed that there is a “planetary intelligence”; that is, the Earth is not a collection of rocks or other inert elements but a coherent system linked to a purpose [18]. In this way, it was changed from a mechanistic paradigm, in which the Earth was a large mass of stone, to one in which it can be affirmed that the Earth is a living being. This thesis was called Gaia, the name of the ancient Greek goddess who generated all the beings that inhabited the planet. In terms of Varela and Maturana, it is an autopoietic system [19].

Leopold changes the status of nature from property to a member of the biotic community based on the axiology of a philosophical value, which is superior to mere economic significance [20]. For his part, Berry [21] considers the Earth an integral community that includes all its human and non-human members, limiting the human being to be just another member (biotic community).

Under the premises analysed, it can then be concluded that biocentrism analyses the conflicts between non-human living organisms, which have value and respect for the fact of sharing life. However, while the proper values of nature and all life forms are recognised, they are not necessarily equal. A person is not the same as an ant. This position generates rights that focus not on individuals but species or ecosystems. Their concern is the survival of populations and the integrity of ecosystems, which enables using natural resources, albeit under certain conditions. On the one hand, it ensures the persistence of these life forms, and on the other, it guarantees exploitation to enable their quality of life satisfaction.

1.3 On ecocentrism

It starts from a holistic vision of the human being. It proposes to broaden reflections on the moral community, questioning the anthropocentric idea of harm and, with it, our exclusivity as subjects of rights. Its justification rests on an ontological belief and a subsequent ethical claim. The former denies that sufficient existential division exists between human and non-human nature to justify human beings as (a) the only bearers of intrinsic value and (b) possessing greater intrinsic value than non-human nature. Thus, there is a further ethical claim for equality of intrinsic value between human and non-human nature and biospheric egalitarianism.

The ecological question not only focused the attention of scientists but also of ecology theorists and raised a kind of division between a) an environmentalist ecology, which continues to consider that humans are the holder of rights and that, although they can recognise their obligations regarding nature, it is not up to them to assign human beings the character of holders of rights; and b) a deep ecology, which recognises personality to nature, as holder of its own rights independently of humans.

Keller & Truschkat defined deep ecology, coined by Arne Naess, as a movement that rejects the image of the man in the environment, in favour of the relational notion of a whole [22], characterised as an egalitarian and holistic environmental philosophy founded on a phenomenological methodology. In this sense, Keller & Truschkat [22] focused on an egalitarian system of values (axiology), as well as on a set of interconnected individuals within a whole (ontology) [22]. As a result, the idea of economic and productive development was accentuated in the twentieth century. The need to preserve nature in the face of environmental impact and ignorance of the ethnic and cultural diversity of nationalities became evident. Thus, the definition of a theory that would grant the status of good to nature, in itself, even in the absence of risk to human beings, emerged.

1.4 Andean philosophical thought

The Andean worldview is cosmocentric; the human being submits to the order of the cosmos expressed in nature and society and, therefore, belongs to Mother Earth (Pachamama). Knowledge, based on the concrete experiences of the people, within specific spatiotemporal parameters of being (that in which the different objects coincide and in which, in turn, they are distinguished) and its essence are expressed in the ritualisation of life as a form of relationship with natural and cosmic or spiritual human communities, which defend the hermeneutic subjectivity to understand the depths of life, in which its celebration (way of being and living), symbols, and stories are elements of socialisation.

Consolidation and evolution of consciousness are acquired by living the rituality of life with daily gestures of reciprocity with Mother Earth. Celebrations, as forms of interpretation of reality, promote a complementary, balanced, consensual relationship with full respect for the identity of the other (one and one-all). Each individual lives in unity with nature, the cosmos, and the totality of reality to achieve well-being, individual, and collective realisation of all the elements of life.

The learning method of the Andean communities is experiential, conscious, and experience-based. At the same time, the transmission of knowledge is oral and symbolic, and its valuation is carried out by the elderly. In addition, emotionality, feeling, and subjectivity are recognised in cyclical space-time under solidarity, redistribution, and reciprocity. On the other hand, spirituality is expressed in the way of living personally and with nature in which the application of the principles of relationality, correspondence, complementarity, and reciprocity is advocated, which is based on a conception of space-time.

The Pachamama, according to Andean thought, is everything in which man is and what is in his environment, above and below him. That is, where everything that exists, material and spiritual, occurs. Humans belong to it, and therefore, no one can appropriate it. It is separated into Pacha and mama [23]. The Pacha refers to the unity of space-time. In this sense, it is vibrational energy in which infinite energies-matter flow in all directions, in nonlinear or spherical-pyramidal movements, simultaneously concentric and eccentric, contractive and expansive, and compact and non-compact, which give the illusion of having a spiral-circumferential shape. There is no top, and there is no bottom, there is no right, there is no left, and there is no centre or periphery. Thus, the Pacha is concentrated with all its power on each human being, bacteria, star, mountain, or drop of water, so that each thing is a whole [24, 25]. According to Pacari [26], the mama is the Mother Earth or “allpa-mama,” which wraps in its womb the seeds and, after specific processes, constitutes the food of living beings. It must be cared for, respected, and equally nourished. During this relationship with the “allpa-mama,” when the harvests are produced, the indigenous peoples sing their songs known as the “Jahuai-jahuai,” and rituals of gratitude are prepared. They toast with it by watering the land with “chicha” (fermented corn drink) and food (challaco), which is nothing more than sharing the commitment to continue generating life.

1.5 Complementary duality

Complementary duality states that nothing exists without its complementary opposite or pair. On the one hand, the cosmic force of Pachatata (father cosmos-masculine energy or cosmic force, above) and the telluric force of Pachamama (mother earth-feminine energy or telluric force below) are interrelated through reciprocity and complementarity so that everything remains in a complementary relationship and perfect balance [27]. Indigenous knowledge has a multidimensional worldview. It considers the existence of other planes, such as the world of the dead or non-visible beings of nature accessed through sacred plants. In the personal sphere, the indivisible world refers to the interior of the human being, where emotions and thoughts originate and are then reflected in the external world.

The “chakana,” a bridge of transition between the world above and the one below, contains and synthesises the conceptual keys of thought, its philosophical principles, and the vision of balance and harmony in the relationships between human beings and nature and the universe. Estermann [28] states that the “chakana” bridges between the human and the divine, the living and the inert, the feminine and the masculine, and the past and the future. Man’s holistic, relational harmony with the mythical living nature, which has a humanitarian, non-discriminatory reason, is explained in the living experiences of rituals and the development of the agricultural, medicinal, and other cycles. The researcher concludes that if the Andean cross did not exist, the world would be in complete disorder, and reality would be totally dislocated [29]. Rituality constitutes an element through which man is linked with the tutelary spirits and “Apus” (mountain spirits), propitiators of the “Sumak Kawsay (good life or life in harmony).”

All beings of nature are invested with energy, that is, the “samai.” Consequently, they have life, enjoy a family, and have joys and sorrows, just like humans [26]. Nature maintains communication with human societies. Thus, peoples recognise what can be done or not. They know the risks and changes; they hold a series of rituals and restrictions that respond to the knowledge of the natural cycles of other species and the understanding of natural laws. In addition, nature is the space for celebrating life with a series of guardian beings known as “owners” who, in the form of spirits, ensure the good use of their protectors. The relationship with the owners is mediated by the “shamans,” who are responsible for negotiating the use of resources [30]. According to Aguirre Palma, water is considered the germ, lactation, and regeneration of man [31]. In addition, it has a sacred value on which the success of the agricultural cycle and life itself depends. For this reason, in the dry season, the community members practice rituals of requesting rain. The essence of sumak kawsay is expressed in the centre of the chakana as the meeting place of complementary, corresponding, proportional, and reciprocal energies linked to life as a whole [32].

2. Ethics of Pachamama

The ethics of Pachamama, as a model of a holistic life, has as its backbone the principles of relationality, complementarity, balance, and reciprocity, which are reviewed below:

2.1 Relationality

For Andean philosophy, the individual as such is “nothing” (a “non-entity”). It is part of a network of multiple relationships [28]. Disconnecting from the natural and cosmic nexus (a postulate of the Enlightenment) would mean for the Andes people to sign their own death warrant [28]. This principle has to do with a holistic conception of life. Everything is related, linked, and connected to each other. This fact can be stated negatively and positively. In the first, there is no unrelated entity; therefore, all are necessary. In the positive way, what one entity does or does not do will affect others. The relationship is not causal but ontological. This means that the important thing is not that one entity can alter the other but that all entities “are” one. There is no causal relationship but an essential one.

2.2 The correspondence

Andean thought involves a mutual and bidirectional correlation between two elements manifesting at every level and aspect of life [28]. Meanwhile, the rational or causal explanation is only one way—and not exclusive—of understanding the world and of knowing [33]; the Andean interpretation is symbolic, ritual, celebratory, and affective. When the correspondence manifests in all areas of life, there is a cosmic, an earthly, and an infra-terrestrial reality. There is correspondence between the cosmic and the human, the human and the extra-human, the organic and the inorganic, life and death, the good and the bad, the divine and the human, etc. The principle of correspondence has universal validity, in gnoseology, cosmology, and anthropology, as well as in politics and ethics [28].

2.3 Complementarity

All entities coexist [28]. An element depends on all the others to be absolute or complete. To be an element requires the one that could be considered opposite, and within the opposite, precisely so as not to consider it that way, we have in the centre the point of the different. That is, the elements are not exactly opposite but complementary and harmonious. All aspects “suffer” from an ontological deficiency. Thus, for example, the author Boaventura de Sousa Santos, to exemplify this approach, mentions that the principal countries are developed in technology but underdeveloped in social communitarianism. In this sense, ignorance of rational knowledge can mean emotional wisdom [34].

2.4 Reciprocity

It is the practical form of interaction between the other principles briefly stated [28]. In every interaction, human and non-human, every time an act or phenomenon occurs, a reciprocal action is manifested as a complementary contribution. Every human action has cosmic transcendence and is part of a universal order. This way of seeing the world does not make sense for Western thought, which is profoundly individualistic and promotes, on the contrary, the autonomy of the will and the freedom to make decisions. The acts of human beings, like those of nature, are mutually conditioned in such a way that the effort or “investment” in action by one doer will be “rewarded” by an effort or an “investment” of the same magnitude by the receiver [28]. From this, it follows, for example, that barter makes much sense in economic relations between people. The basis of reciprocity is what Estermann calls “cosmic justice” [28], which would bring together all our compartmentalised ways of understanding justice (economic, judicial, social, among others). Therefore, the basis of all relationships is the cosmic order, and an improper act can alter the global order.

Cosmic balance (harmony) requires reciprocity of actions and complementarity of participants. For the Andean people, a (unilateral) relationship in which one party only gives or is active, and the other only receives or is passive is neither imaginable nor possible [28]. The principle of reciprocity can be appreciated, lived, and applied in any sphere of life, from the daily and seemingly personal to the transcendent and cosmic. As for the relationship with nature, the human being, when interrelated with the soil when sowing or harvesting, does not do so as with an object but as a subject with whom he works and transforms. The sowing ritual is an interrelationship of deep respect and reciprocity. If nature is reciprocal with the human being and vice versa, preserving this interrelation through the notion of law is appropriate, whereas, if neglected, it deprotects and damages nature and irreparably affects the principle of reciprocity. The Andean philosophy does not start from the conception that the human being is the only and exclusive recipient of the benefits of the discourse of rights. On the contrary, Andean logic does not consider and, therefore, anthropocentrism is discarded in the foundation [35].

2.5 The development of the right to nature since the sentences issued by the Constitutional Court of Ecuador

In Ecuador, a jurisprudential line has been developed regarding nature as a subject of rights through the Constitutional Court. Thus, several rulings have been handed down in the recent years, for example: a) in Ruling No. 012–18-SIS-CC Case No. 0032–12-IS, the violation of the rights of nature is recognised due to effects on the Vilcabamba river; b) in Ruling No. 22–18-IN−/21 Case No. 22–18, it is stated that mangrove ecosystems are holders of the recognised rights to nature and have the right to have their existence, maintenance, and regeneration of their life cycles, structure, functions, and evolutionary processes fully respected; c) in Ruling No. 1149–19-JP/21, the affectation of the rights of nature by allowing mining activity in the Protective Park “Los Cedros” is recognised. It was determined that nature has intrinsic value as a holder of rights and not necessarily as a value linked to human beings. Therefore, it has legal protection for itself; d) in judgement No.1185-20-JP/21 (The Aquepi River) case No. 1185-20-JP, the legal valuation of the river as a subject of rights individually and simultaneously as part of an ecosystem, recognised that rivers are dynamic, complex, and integrating ecosystems with multiple connections with other ecosystems.

Therefore, the Constitutional Court has established a jurisprudential line that recognises nature as a complex subject that must be understood from a systemic perspective. This comprises an interrelated, interdependent, and indivisible set of biotic and abiotic elements, in which, when one part is affected, the functioning of the entire system will be altered. Thus, Ruling No.253-20-JH (habeas corpus action in favour of a Chorongo monkey named Estrellita) recognised wild animals as subjects of protection rights by being part of nature.

3. Conclusions

Having the Constitutional Court developed the jurisprudence marked by the path of intercultural interpretation of human-nature relations and the ethical and moral principles generated in the relationships recognised transversally in the Andean philosophy, it is possible the emergence of a new normative behaviour, totally distant from economic extractivism as a foundation of the capitalist system, because it tends towards a financial form of subsistence marked by respect and harmonious coexistence of the different elements that coexist in the world. This situation leads us to a social, cultural, and philosophical commitment external to the Eurocentric.

Therefore, jurisprudence has initiated the path with a reconstruction process of the ethics of good living. The challenge is to make an active transition to abandon that productivist economy, uprooted from the Earth, immaterialist, separated from the biosphere, and materialistic, which exploits natural resources to indefinitely increase the material well-being of people, and move to an economy in which nature is not a resource or requires a continuous accumulation of wealth that submerges subjects in the free game of supply and demand. Such an economy will not wish to multiply what it has in the future and will consider the reciprocity between nature and human beings and moral consideration. The practice of a new ethic will be achieved by constructing a society where the productive objectives go hand in hand with the laws of functioning of natural systems, with attention to human dignity.