[Crm-sig] An interesting case of rights to think about..
franco.niccolucci at gmail.com
Sat Mar 25 13:37:08 EET 2017
I was interested from the question raised by Athina as well, and started writing a reply similar to yours, but there remained some doubts, so I left it in my large drawer of open issues.
I understand you suggest (as I planned to do) to model the river as an E40 Legal Body. i.e. a subclass of E39 Actor, which, according to its scope note, "comprises people, either individually or in groups, who have the potential to perform intentional actions of kinds for which someone may be held responsible. The CRM does not attempt to model the inadvertent actions of such actors.”
Now, although the statement by the NZ government quoted in the article refers to the “liability” of the river, is there any intentionality in e.g. a flood? Can the river be called in court for the damages? I do not think so. In my opinion, but we should ask Maoris, the river has rights but no intentionality. It is similar to natural persons who are "unfit to plead", for example because of mental insanity or for young age, and so cannot be held responsible for their acts: they cannot have a “mens rea” (guilty mind). This consideration applies to bad behaviour, but of course it applies to good one as well: for them there is no merit or guilt in doing things. Nevertheless, such people have rights: even animals do. They can even hold “legal rights”, for example they may own things, with guardian(s) to act as trustees on their behalf.
Obviously the river guardians have to do anything possible to avoid disasters, but cannot be held responsible for acts of God. So, what is the difference between them and a river authority? This deprives the news of much of its appeal: a National Park has similar “rights” although not defined as a person, which are managed by its director, the government or whatever. The Maori river story seems much more a political/philosophical question rather than a legal one.
However the example, beyond the picturesque news, shows that either there is a need of rephrasing the above-mentioned scope note; or that the CRM is not interested in such situations (I would go for the latter).
If so, who P75 possesses the E30 rights: the guardian, who may be held responsible, or the rightful right owner, who cannot? The E40 scope note suggests it is the guardian, and probably the same holds for the Maori river.
In any case it should be explained in the E40 scope note e.g. that the person(s) having property rights on something may not be an actor because may be incapacitated to be liable and thus, by definition, cannot perform intentional actions. In this case, how do we document ownership? And what is the (CRM) relationship of the guardian to the ward?
the river guardians -> E39 Actors
the river itself -> E?
the guardians towards the river -> P?
Prof. Franco Niccolucci
PIN - U. of Florence
ARIADNE - PARTHENOS
Piazza Ciardi 25
59100 Prato, Italy
> Il giorno 25 mar 2017, alle ore 11:15, Øyvind Eide <lister at oeide.no> ha scritto:
> Dear Athina,
> I have not moved beyond the article (thanks for posting it, it is a very useful addition to other complex land right issues!) but by reading that it seems like the river has the right of a legal person, not an individual. Is that right? If so, the river can be seen as an organisation, in line with the (and connected to) a group of people (the Whanganui iwi). Or it can be seen as an organisation connected to the two guardians, who will speak on behalf of the legal person (the river).
> Can this be seen as similar to, for instance, a trust? Then a lawyer appointed to speak on behalf of the trust would be in line with the two guardians of the river.
> All the best,
>> On 20 Mar 2017, at 12:57, athinak <athinak at ics.forth.gr> wrote:
>> Dear all,
>> relating to the rights triangle P75,P104, P105 we proposed, here is an interesting case of right holding: https://www.theguardian.com/world/2017/mar/16/new-zealand-river-granted-same-legal-rights-as-human-being.
>> The approach of the tribe is unique: the river is granted legal rights as human-being; can we apply this (rights possessed by river?) in the model? is there a possibility to find an equivalence between human's behavior and a behavior of a phenomenon and in what way? is there a generalization missing?
>> think about this,
>> Athina Kritsotaki
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