[Crm-sig] An interesting case of rights to think about..

Christian-Emil Smith Ore c.e.s.ore at iln.uio.no
Mon Mar 27 11:46:09 EEST 2017


The New Zealand example  has a kind of counterpart in the so called Droit Moral/Moral Rights connected with IPR. 
(https://en.wikipedia.org/wiki/Moral_rights). Moral Rights is not limited in time. By decorating a Mona Lisa copy  in a offending manner you can taken to court accussed for violating Leonardo's Moral Right.   Who posesses the rigths?  Leonardo who died 500 years ago?

Chr-Emil

________________________________________
From: Crm-sig <crm-sig-bounces at ics.forth.gr> on behalf of athinak <athinak at ics.forth.gr>
Sent: 27 March 2017 08:04
To: crm-sig at ics.forth.gr
Subject: Re: [Crm-sig] An interesting case of rights to think about..

Deal all,

I agree with all of you - basically, this case was a good example to use
in order to question models of ownership or transfer of custody relating
to rights and actors, that's why I mentioned it,
BRs
Athina Kritswtaki

Στις 2017-03-25 20:41, martin έγραψε:
> Dear Franco,
>
> I think your analysis is exactly up to the point. I think the question
> is not so much, if the CRM is interested in modelling such a thing,
> obviously it is out of scope so far, but to understand the distinction
> between human terms and the actual concepts they represent. Clearly,
> the identification of the river with a human being is a metaphor,
> which shows how far stretched such metaphors can be, but still be
> operational if suitably interpreted, otherwise the Maori wouldn't have
> won the case. That does not mean, that we should extend E39 Actor with
> this river, nor that the Maori confuse rivers with human actors.
> Therefore I do not see a need to change the scope note, even if it
> were in scope. Rather, we have to do with another instance of an even
> more abstract phenomenon, that might be very interesting to understand
> some time.
>
> For me, this is a didactic example not to be fooled by surface
> language terms in ontological analysis. George Lakoff, in "Women, Fire
> and Dangerous Things" describes this "prototype effect", i.e, how a
> core metaphor, such as "human being", can be extended in different
> ways, with NO COMMON CORE meaning.
> The question is always which definition of the behaviour of instances
> of some concept answers which question.
>
> You write: "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? "
>
> This touches a fundamental question of exception handling. Since these
> persons are accidentally handicapped and not a systematic life form,
> I'd argue that they fall under the "potentially capable of intentional
> action", and hence are actors.
>
> To be discussed, a very nice topic of logic versus reality, intension
> versus potential.
>
> All the best,
>
> Martin
>
> On 25/3/2017 1:37 μμ, Franco Niccolucci wrote:
>
>> Dear Oyvind
>>
>> 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?
>>
>> In sum:
>> the river guardians -> E39 Actors
>> the river itself -> E?
>> the guardians towards the river -> P?
>>
>> Best regards
>>
>> Franco
>>
>> Prof. Franco Niccolucci
>> Director, VAST-LAB
>> PIN - U. of Florence
>> Scientific Coordinator
>> 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,
>>
>> Øyvind
>>
>> 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
>> [1].
>> 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,
>> BRs
>>
>> Athina Kritsotaki
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