Giving Trees A Vote

The philosopher Jonathon Keats wants to incorporate the world’s plants and animals into our democratic systems.

Duri Baek for Noema Magazine

Boyce Upholt is a writer and editor based in New Orleans. His book “The Great River” will be published in June 2024.

Anyone who has come home from the grocery store with a few too many bananas knows the perils of this fruit. Sometimes as much as half a harvest can be lost before reaching market. That’s why farmers tend to gather the bananas while they’re still green and hardy. The trick is to find a way to get the bananas to ripen quickly once they’re ready to sell.

There is a simple solution, practiced everywhere from Brazil to Africa: wrap the bananas in bags alongside leaves from other trees. The leaves release ethylene, which is both a stress hormone and a ripening agent. It’s an ingenious hack, coopting a biological process for human benefit. (It’s also far preferable to the standard modern technique: spraying bananas in industrial-grade calcium carbide, which often contains impurities hazardous to human health.)

When the philosopher Jonathon Keats learned of this practice, he saw something far more consequential: this is a means to expand the cramped boundaries of democracy. Finally, we’ll be able to tally the votes of the trees.

In 2006, frustrated that regulators like the Environmental Protection Agency couldn’t — or wouldn’t — stop companies from dumping toxic “biosolids” in nearby mining pits, the residents of a Pennsylvania town tried a new tactic: they passed an ordinance declaring that “ecosystems shall be considered ‘persons.’” First conceived by a legal scholar more than three decades prior, the concept of granting natural entities’ rights was meant to supercharge environmental protection by giving ecosystems the inherent right to exist untainted.

Though that Pennsylvania law has never been tested in court, subsequent “rights of nature” laws have had real consequences. In a ruling last year, Ecuador’s highest court ruled that a rights-of-nature provision in the country’s constitution forbid mining in a protected cloud forest. “The last three years have been an explosion of laws and campaigns towards the rights of nature,” says Grant Wilson, the executive director of Earth Law Center, a nonprofit that helps develop such laws. A set of lakes, streams and a marsh in Florida sued a developer last year, attempting to stop the construction of a 1,900-acre housing development amid the adjoining streams and wetlands. The waterways, which had been granted legal rights in a landslide county vote, are the first (and still only) natural nonhuman entities to defend themselves in U.S. courts.

The case launched a wave of press coverage, though its outcome revealed as much about the limits of this legal concept as its promise. Florida’s Republican-dominated legislature had already passed a law forbidding local municipalities from granting rights to nature, so a judge dismissed the suit.

“What if trees were named the owners of the land upon which they stood?”

While conservatives decry the rights-of-nature movement as, among other flaws, an attempt to “thwart human enterprise,” there are also critics on the other side who say this revolution is not enough. The new laws in some ways mimic Indigenous cosmologies, which often describe a world where no sharp line divides human and nonhuman beings. Indigenous leaders have been instrumental in passing rights-of-nature laws in many countries, and several U.S. tribes have embraced the idea. Still, some Indigenous thinkers suggest that “rights” are a deeply Western concept that cannot capture the personal, reciprocal exchange between human and nonhuman beings. When we conceive of obligations to our family, after all, we do not typically talk about rights.

Even Wilson notes that while the concept is a powerful tool, it is just a beginning. “You write three words into a law or a constitution — “nature has rights’ — and it’s transformative. But really what we need are relationships with nature and whole systems of society that are in harmony with nature.” Keats, who serves as Earth Law Center’s consulting philosopher, goes further: extending rights of personhood to nonhuman nature is a “technological fix,” he says — an incomplete cure that addresses the symptoms while the underlying pathology still festers. The laws passed over the past decade are valuable and important, he says, but ultimately shallow and superficial. As the case in Florida shows, they’re easily undone.

Working with Earth Law Center, Keats has produced a draft taxonomy of other kinds of “ecocentric” law. Some of the concepts he describes exist already: the body of law that protects beloved places, like national parks, for example, Keats calls “ecophilic.” The emerging rights-of-nature laws he classifies as “ecoprotective,” a term that emphasizes the need for human guardians to speak for nature in court. (In Florida, for example, an activist named Chuck O’Neal served as a co-plaintiff alongside the waterways.)

Other forms of ecocentric law remain hypothetical. Once well established, ecoprotective law could evolve into what Keats calls “ecorepresentational” law, which would give standing directly to nonhuman beings. What if, for example, trees were named the owners of the land upon which they stood? Ecorepresentational law might in turn grow into a future where species could receive patents for the “intellectual property” contained within their genes: if a medicinal plant inspires a drug, the profits from its sale would be placed into trust for the plant. Keats calls such future laws “ecocompensatory.”

The list goes on: ecogenic, ecometric, ecocompatible, and, ultimately, ecocratic — law that is developed in collaboration with other species.

Scientists have demonstrated that trees communicate and collaborate with one another. A forest, then, is a congress of trees. And Keats points out that scientists have remarked on how collaborative trees seem to be, even with other species. That’s a striking contrast to the perpetual gridlock of our human legislatures.

Human beings make up less than one percent of the planet’s biomass, Keats notes, while plants and nonhuman animals together make up more than 80%. They’re spread across the world’s many biomes — including places human beings can barely access, like microbes and crabs living on thermal vents in the ocean bottom. “In other words,” Keats wrote in a primer explaining his vision of multi-species governance, “they’re deeply informed, and have much to tell us.”

Democracy is not a uniquely human institution. As the writer and philosopher Eva Meijer writes in her recent book “When Animals Speak,” female African buffalos often stand and stare in one direction or another before sitting back down. The biologists who noted this behavior at first presumed the buffalo were stretching. Then, after two years of study, he realized that once enough bison stood and gazed in the same direction, the entire herd would move that way: this was “voting behavior,” he determined. Herds of red deer, too, move only after more than 60% of the adults stand up.

People already attempt to represent animals’ interests in democracies: the Party for the Animals, for example, has six seats in the Dutch legislature. A Costa Rica city has declared its pollinators — bees, butterflies, hummingbirds and bats — citizens, a symbolic gesture meant to prompt more holistic urban planning. The philosopher Sue Donaldson has developed incremental proposals that might push the world toward truer interspecies democracy. She suggests, for example, that our domestic pets might speak through “microboards,” an idea borrowed from the disability community: a trusted group — chosen by the pet through clear expressions of affection — would represent his or her point of view.

Often, though, the philosophical literature on this topic becomes mired in thickets of theory and terminology. In a recent “trialogue,” three philosophers were so caught up in definitional disputes — whether or not, for example, Donaldson was right to classify a dog’s choice of which route to walk as an example of meaningful political agency — that no one actually got around to describing how an interspecies democracy might work.

“Democracy is not a uniquely human institution.”

Keats told me that when he studied philosophy at Amherst College in the early 1990s, he found the discipline restrictive. “The questions being asked were too narrow, technical, and confined,” he said. “The mode of discourse prevented others from entering into it.” When he graduated, he decided to pursue philosophy on his own terms. That often meant launching what amounted to conceptual art projects. He produced pornography for plants, for example — lavish images of bees pollinating flowers. Keats wanted to rattle people’s unexamined assumptions, forcing audiences into a more curious mode of thinking. Humor, he figured, could make that process more inviting. Lately, though, as Keats has turned his attention to the planet’s ongoing ecological crises, his work has grown weightier.

Most discussions of interspecies democracy begin with moral reasoning: we believe that many animals are sentient, yet they have no say in the political systems that define the world around them. Most philosophers then ask how we can we expand our current systems to include their views. Keats’s thinking on ecocentric laws rests on a more radical premise: our political systems are fundamentally broken and may need to be replaced. When I met Keats at his San Francisco apartment in July, a heat wave smothered much of the globe. The U.S. Supreme Court had just stripped the EPA of its ability to regulate carbon emissions. Because of the truculence of a single Democratic senator, any progress on climate-mitigation legislation seemed doomed. “We need better decisions,” Keats told me. “But more than that, we need a better decision-making system.”

Keats wants to revisit some of the basic presumptions of our democracy. Why do we vote for legislators just once every few years? Keats blames the transportation technology that was available during the nation’s founding — horses, mostly. It was hard to get to the polls. Now, centuries later, it’s much easier, yet we’re stuck in our ways.

Working with students and faculty at San Jose State University’s CADRE Laboratory for New Media, where he is a visiting scholar, Keats spent several years developing hypothetical new forms of democracy. Ultimately, a simple thought experiment yielded a breakthrough: why bother with electing actual people? Keats and his colleagues developed a digital platform, a set of random number generators that they programmed to mimic the behavior of Congress.

The platform boils down the nation’s political ideologies into two simple presumptions: liberal legislators generally support changes to the legal system, while conservative legislators prefer the status quo. The platform does not care, then, about the particulars of each new bill — indeed, we might randomly generate tweaks to existing law, like mutations appearing in a genetic code. For each mutation, the platform accounts for the current makeup of the legislature — how many conservatives, how many progressives — and, with a bit of built-in randomness (“a crucial check on the tyranny of the masses,” according to Keats), spits out a yes or no. One upshot of a digital legislature is that we’d no longer need to bother heading to the polls. Instead, we could simply strap on Apple Watches and monitor our heart rates and cortisol. An increase in stress becomes a vote for change: the legislature becomes more progressive. When we calm down, signaling contentedness, the legislature turns more conservative. The platform mimics biological evolution, blindly groping its way towards an optimum legal code, adjusting as the environment around us demands changes.

There are obvious reasons to be skeptical: personally, I wouldn’t trust my fluttering heart to cast my vote; my stressors are sometimes about my job or my family, not the state of global politics. Keats points out that in the U.S., elections are already viewed as referendums on the reigning party and whether they’ve made the country a more livable place over the past few years. Particular policies seem to matter less than the price of gas and the rate of inflation.

“Keats’s thinking on ecocentric laws rests on a more radical premise: our political systems are fundamentally broken and may need to be replaced.”

Besides, my insistence on knowing whether or not this system would reflect my desires — or even whether it would reflect the will of the people — is a refusal to think beyond the individualistic limits of democracy. The real question is whether the collective stress of the populous serves as an effective proxy for needed change. Viewed from that scale, I begin to see the platform’s appeal. It bypasses our intellects, but that might offer a clearer reflection of our lived experience. Another virtue is that the platform can be expanded to incorporate the rest of biology, since other animals produce cortisol, too, and plants produce their own stress hormones, including ethylene.

When Keats and his colleagues at SJSU began to stress test this vision of “phytodemocracy” with high-tech ethylene sensors, they ran into difficulties. “They’re not cheap,” says Steve Durie, an artist and lecturer at the CADRE Laboratory. “They’re hard to run.” If the sensors were too cumbersome for a few students, they’d be nearly impossible to apply on a national scale. Which is where the bananas came in: Keats realized that if their ripening process can be hastened by the presence of ethylene, they could serve as probes of a kind. Plus, bananas were cheap.

Thus, Keats conceived of a new democratic ritual: start with two bananas in matching shades of green; hang one from a bag in the branches of a tree, while the other is kept in controlled conditions. Soon, thanks to the tree’s ethylene, you’ll get what Keats calls the “banana differential.” Repeat this protocol month after month, year after year, charting how the differential changes through time, and you can pinpoint periods when the trees seem to be growing increasingly frazzled by the world, data that can be quickly ported into the digital legislature.

Keats often hears from critics that his ideas are too radical. Voting rights as we know them are under threat, and here he is talking about tossing out legislators and randomizing legal texts and enfranchising plants. He agrees we need immediate triage to save our democracy, but his projects are geared to the longer-term future, which may require more radical change. He allowed that his ideas might be terrible — that infracting plants could send us spiraling towards disaster. But that’s no reason to avoid the conversation. We need to start experimenting now, so we know what could work.

He has no training in law, but he sees this as an advantage, as it frees him to think differently. Wilson told me that the job of the legal experts at Earth Law Center is to translate Keats’s concepts into the language of legalese. Thus, the organization has begun creating a repository of legal templates, ready for governments to adopt — LegalZoom for ecocentric law, in other words.

Lately, the team has been focused on what Keats calls “ecomimetic” law, which is inspired by the self-organizing principles of living systems. By way of example, Keats offered a story: envision a small village, he said, a hundred or so people who every so often walk through their local landscape seeking examples of behaviors they thought were worth emulating. A tree’s rootedness, for example, could inspire a new idea of ownership: to own a plot of land, you must be there and, like the tree, give back to the place and its creatures.

Keats imagines this wandering party of villages would set down a piece of clay at the foot of the tree and begin to discuss the particulars of their new law; once they reached consensus, they’d etch the terms of the law into the clay and build a bonfire. Once fired, the clay would become a lasting tablet, which would be set at the foot of the tree — and this is where future tribunals would be held, so the tree itself would stand as the exemplar of the law. One of the merits of this system, Keats thinks, is that it’s timebound by the local climate: eventually, the tablet will erode to nothing, forcing the community to decide whether or not to renew the old law. The unfired clay, too, gives urgency: it will quickly lose its shape if the community can’t reach consensus.

“He allowed that his ideas might be terrible — that infracting plants could send us spiraling towards disaster. But that’s no reason to avoid the conversation.”

To me, this little sketch sounded drawn from a science-fiction novel. When I said as much, Keats expressed his admiration for sci-fi: its writers are among the few people willing to engage with truly radical ideas. Keats himself has published novels, though he’s found that the form has inherent limits. “I don’t think that science fiction, by and large, is threatening enough,” he said. “Not because it isn’t good, or great, even, but because it suffers from the context in which it operates — that you can close the book. The movie comes to an end.” People can dismiss the work as fiction — “‘It’s just a movie,’ ‘it’s just a novel’” — and move on. Keats’s work on ecocratic law, he says, is different than his early art projects. He’s trying to create possible worlds that are less hypothetical, less whimsical and more imminent. Halfway through our interview, Keats pulled a lump of clay from a bag beneath his desk and proposed we take a walk.

In a nearby park, he pressed a leaf against the clay to leave an imprint, then scratched in numerals representing the date. Then he scrambled up a hill and placed the lump beneath a tree. He’d come back later to see how long the impression lasts — a way to test how his bit of utopian sci-fi might work in the material world.

It’s important to make his proposals “shovel ready,” he told me. Because if he gets them to the point that they can be implemented tomorrow, then we’re confronted with the essential question: why aren’t we doing things this way?

The banana differential, as it turned out, was not quite shovel-ready. When Keats asked SJSU students to track changes on actual bananas, the resulting figures were inconsistent. On the other hand, when Keats had the students eat the bananas at the end of the experiment and score their sweetness, they produced far more reliable results.

So here was a great leap forward in interspecies democracy. Fruiting is already a form of communication, Keats notes — a plant wants its seeds to be spread, and through its blushing colors manages to say, hello there, I’m ready, please help me propagate. Rather than worrying about ethylene levels and bags of bananas in trees, a democratic citizenry can simply eat the fruit and thereby catch a glimpse of the plant’s experience. If the flavor changes from year to year, this says something about how the plant has fared in this world.

Even if we don’t adopt a digital legislature, Keats says, the process of recording a banana differential or a record of fruiting might be useful: a public database describing plants’ experience could inform the votes of sympathetic politicians, or a corporation could put plants on their board. The process of collecting the data could open our eyes to the fact that we live in a more-than-human world.

In the park, Keats described a new vision: there’d be a yearly election day when a community goes out and harvests a few indicator species, no matter the apparent ripeness of the fruits. Sugar content could be measured using a refractometer, a simple tool that has become common among homebrewers — cheap and accessible and easy to use. Keats collected a handful of grape-like berries — leatherleaf mahonia — to demonstrate. He mashed the fruit against the glass plate of a refractor he’d brought, then handed me the device. When I pointed it toward the sun, the display revealed the juice contained 17% sucrose.

This tool could give a bit of rigor to the data, Keats says, though he also envisioned the election day as a community event: a picnic, a banquet, a celebration of our connection with the rest of the Earth. Sitting in the sunshine, the ritual sounded alluring, though it was easy enough to come up with reasons why it wouldn’t or couldn’t — perhaps even shouldn’t — ever be held. Of course, those objections were the point. They offered a map, revealing, by contrast, what in the idea might yet come true.