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 <[email protected]> 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 <[email protected]> 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,
BRs
Athina Kritsotaki
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