by Richard P. Hiskes. Cambridge: Cambridge University Press, 2009. 182pp. Hardback: $90.00/£45.00. ISBN: 9780521873956. Paperback: $29.99/£17.99. ISBN: 9780521696142. eBook format. $24.00. ISBN: 9780511465956.
Reviewed by David Dehnel, Department of Political Science, Augustana College. Email: daviddehnel [at] augustana.edu.
n this book, Richard Hiskes makes a case for incorporating environmental rights in national constitutions. He is motivated by his view that “Environmentalism needs a new and more muscular political vocabulary grounded in today’s central political ideas of human rights and justice” (p.2). To make his case he takes on a number of formidable philosophical challenges, including the fact that traditional liberalism has little to say about environmental issues, that rights language focuses on the individual while environmental degradation is a collective and reciprocal concern, and that environmental problems tend to be intergenerational in character. His handling of these challenges makes for an interesting exploration into of the philosophy of rights, but the fact that the book is thin on the legal, and specifically constitutional, dimensions of rights will make it of tangential interest to many readers of this review.
To account for the relatively recent appearance of environmental concerns on the human rights agenda, Hiskes coins the phrase “emergent rights” and develops a philosophical explanation for why we should not be surprised that human rights, though universal in character, nonetheless may change over time (Chapter 2). First, Hiskes notes that, although it has long been recognized that rights are closely connected to human identity, post-modern perspectives on the individual have recognized that human identity is malleable, not defined by a fixed “human nature.” Further, he asserts that rights define human relationships, either between individuals or between individuals and their government. Relationships and the rights that structure them are constitutive of human identity. Because relationships (and therefore identity) evolve over time, new rights can emerge. Finally, Hiskes posits that rights are defined in response to threats to basic human needs, and emergent rights are the appropriate response to emergent threats, such as our contemporary environmental crisis.
As Hiskes suggests, these considerations can be applied to other “emergent” human rights. A more formidable philosophical challenge lies in adapting the concept of rights to intergenerational moral obligations. The difficulty is that, for rights to be enforceable as a matter of justice, there must be a reciprocal relationship between the bearer of a right and the entity obliged to respect that right (p.10). Although individuals may have moral obligations towards those who are dependent on them, principles of justice are applicable only between [*30] moral agents in relationships of rough equality. We can harm future generations, but they cannot harm us. Hiskes responds to this challenge by articulating the concept of “reflexive reciprocity” in Chapter 3. This complex notion of reciprocity acknowledges each generation’s dependence on the vitality of cultural values across time. In light of this, Hiskes asserts that “Our successors are surely at our mercy to preserve our (and therefore their) physical environment, but we are also at the mercy of our own capacity to honor their human right to clean air, water and soil. If we do not do so we harm ourselves as well” (p.66). Apparently, we will not appreciate our own rights until we think seriously about the rights of future generations as well.
In pursuit of ideas such as emergent rights and reflexive reciprocity, Hiskes adopts the controversial idea of group rights. In the first place, it is often difficult to assign individual shares to environmental goods like clean water and clean air (p.19). Even if this can be resolved, Hiskes’ attribution of rights to future generations necessitates the recognition of group rights (p.63). While acknowledging that group rights are problematic, Hiskes argues that environmental rights avoid some of the pitfalls of group rights claims that have emerged from identity politics, because our imagined dialogue with future generations is about bridging the gap through shared identities (p.149).
Here as elsewhere in the book, Hiskes tries to make a virtue out of a necessity. Because of the power of rights language and the seriousness of environmental threats, we should find a way to apply that language to the threat (p.2). Because environmental threats implicate generations not yet born, we should adopt the concept of group rights (p.63). Because the enforcement of rights depends on principles of justice, we must develop a theory of intergenerational justice through reflexive reciprocity (pp.13, 24, 48). Because future generations cannot vote in the present, their rights must be constitutional in stature (p.131). Hiskes’ argument is nothing if not ambitious. His efforts to tackle these and other obstacles are provocative, if not always satisfying.
I hope that the above gives the flavor of Hiskes’ argument, though it does not do justice to the thoroughness of his analysis of the philosophy of human rights and intergenerational justice. In the remainder of this review, I will focus on some of the implications of his argument for legal institutions.
On the way to his conclusion that environmental human rights should be enumerated in national constitutions, Hiskes makes some interesting assertions about the nature of written constitutions. National constitutions serve the purpose because they are enforceable and because of their connection to deeply held values like human rights. At first glance, national constitutions may seem too parochial for problems like global climate change, but Hiskes sees national identity as the fulcrum on which local action and global necessity can be balanced.
As noted above, Hiskes sees environmental rights as resting on the recognition of communal obligations with future generations. For the imagined dialogue with the future [*31] (“reflexive reciprocity”) to generate something as substantial as intergenerational justice, we must see ourselves as members of the same moral community as our posterity. At the global level, such connections are simply too abstract. We feel a special connection to our own progeny, enhanced by the assumption that they will inherit the land on which we live (p.101). There is a danger, of course, that a preference for the rights of our own descendants over members of other communities will amount to a narrow nationalism (p.69). Hiskes believes, however, that nationalism need not be destructive if the national political process is democratic. In democracy, citizens not only share a common identity (as they do in totalitarian states), they also participate in the pursuit of common goals. Citizens in a democracy experience freedom as members of a community (Chapter 5), thereby taking a crucial first step toward a global construction of human rights (Chapter 6).
Having resolved the local/global dilemma by locating environmental rights at the national level, Hiskes contends that constitutions should be the locus of the new rights. He identifies several traits of constitutions that serve his purposes. Fundamentally, he asserts that constitutions and rights “have become wedded in most observers’ minds as the most common and efficacious method of governmental limitation” (pp.127-128). This statement glosses over the fact that environmental rights are among those that obligate government to act rather than limit its authority. Philosophically, Hiskes rejects the negative/positive rights distinction because all rights are founded in social relationships, contrary to “state of nature” theories (Chapter 2). That is a valid point, but constitutions deal with the structure of government (including the enforcement of rights), and the distinction between limitations on power and obligations to act does matter in that context. Here, Hiskes stops short of discussing issues of considerable interest to law and politics scholars.
Another trait of constitutions important to Hiskes is that “they are collective statements of a nation’s values, character, or identity” (p.128). Hiskes depicts constitutions as the legal expression of the moral community that binds together past, present and future citizens, and therefore as the logical locus for inter-generational environmental rights. Here Hiskes seems to be unconsciously universalizing the Anglo-American constitutional tradition, as when he declares that “Constitutions provide much of the tradition that binds individual citizens into a community with a recognizable past and future, and thereby a shared identity that is rooted both in stories of the past and in an anticipated future” (p.128). Many nations, of course, are much older than their constitutions. In most places, rights based constitutionalism is a recent development, if it exists at all.
Hiskes does not discuss how constitutional environmental rights would be enforced, and the book contains no hypothetical examples or discussions of policy implications. The book begs a number of questions of interest to law and politics scholars, such as: What sort of constitutional right might be implicated by global climate change? What governmental obligations would the violation of such a right [*32] imply? Would courts of law be empowered to create remedies? Who, if anyone, would have standing to sue on behalf of future generations? These of course, are the potential questions for another book, but I did feel somewhat cheated when I finished this book because Hiskes pushes hard right up to the edge of these questions. He endorses the “trumping” power of constitutional rights over ordinary legislation and asserts that environmental rights would “function to restrain actions by narrow (or narrow-minded) majorities that might be deleterious to long-term environmental protection” (pp.131-2).
In sum, THE HUMAN RIGHT TO A GREEN FUTURE is a provocative exploration of the use of rights language to address environmental issues. Readers interested in the philosophy of rights and justice will find a careful and well documented discussion of many of the major issues surrounding the expanding idea of human rights. Scholars of law and politics will find that the book stops short of addressing the implications of environmental rights for legal institutions.
© Copyright 2010 by the author, David Dehnel.