This is fascinating. Consider this: in the middle of the night a hyena leaves the woods and, ‘trying to force itself between the poles’ of the goats’ pen, tries to eat a goat. The Kenyan farmer hears it and kills the hyena. (There is no mention of the hyena actually getting in and killing a goat.) A trial results. A human elder is appointed to represent the hyena. It turns out that not only was the hyena hungry, but she was nursing too. There’s a drought on. ‘Her behaviour was … reasonable and … it was wrong to have killed her.’ The farmer did not consider this, nor ‘that such killings were contrary to customary law.’ Couldn’t he (his gender is identified) have simply driven her away? The elders decide the farmer should release more than a hundred of their (note: not ‘his’) goats into the woods to ‘be eaten by the hyenas and other wild carnivores.’
This story illustrates, South African lawyer Cormac Cullinan writes [ewl, 230-235], ‘African customary law’s concern with restorative justice rather than retribution. Wrongdoing is seen as a symptom of a breakdown in relationships within the wider community, and the elders seek to restore the damaged relationship rather than focusing on identifying and punishing the wrongdoer.’
That’s a tale of African customary law. Now a little Western history: in 1972 law professor Christopher D. Stone (this link is a good read and provides details!) asked in a lecture, What if Nature had rights like people and corporations do? ‘How could such a posture in law affect a community’s view of itself?’ An uproar ensued: trees and fish don’t have rights! Stone realized law needed to change in three ways:
- an aspect of nature, such as a river, could sue
- an offender, such as a polluter, could be held liable
- judgements could be made benefiting that aspect
Following Stone’s question and subsequent essay, ‘Should Trees Have Standing? Toward Legal Rights for Natural Objects’, U.S. law swung a bit to the left for a few years, but then back to the right. Cullinan notes that
the courts still have not recognized that Nature has directly enforceable rights. Communities have always used laws to express the ideals to which they aspire and to regulate how power is exercised. Law is also a social tool that is usually shaped and wielded by the powerful. Consequently, law tends to entrench a society’s fundamental idea of itself and how the world works. [But as society changes, so too does law. He gives the example of American slavery.] … In the eyes of American law today, most of the community of life on Earth remains mere property, natural ‘resources’ to be exploited, bought, and sold just as slaves were. This means that environmentalists are seldom seen as activists … but rather as criminals who infringe on the property rights of others. It also means that actions that damage the ecosystems … are poorly regulated.
With the recent 2006 Tamaqua Borough of Eastern Schuylkill County (Pennsylvania) ordinance regarding sewage sludge that recognizes ecosystems as persons maybe the pendulum is swinging left again. When will it stay there, or will it swing back? As Pete Seeger (right) wonders, will we ever learn? Will we listen to the wisdom of the elders? The analogy of our culture being teenaged seems appropriate, for in our culture often teens don’t listen to their elders. They gotta find out the hard way. This is hard. Restoration is hard. But in the long run, retribution is harder. No, retribution–whether smacking your kid or jailing someone for ten years–doesn’t have a long run; it just perpetuates the cycle of violence.