Rebalancing rights

Corporations are becoming soverign. Governments are surrendering their sovereignty to them, eagerly. Governments have no desire to grant ‘rights’ to nature and they won’t. Sovereignty over nature was always integral to what sovereignty is. That is the the exact sovereignty corporations want and are getting.

An alternate or parallel conception is that the market is soverign. The market provides the best solution to who has rights at all.

The great conservative task of denying government sovereign rights is in the service of giving corporations and the market sovereignty.

Meet the new boss.

I think both your claim that corporate property rights are socially constructed and that this view is not universally accepted are both absolutely correct and very important facts about (US in particular) society.

In particular, the combination of limited liability, principle of shareholder value uber alles as a governing principle of corporate management and corporate personhood – this triumvirate is very much a mistake. I could accept any 2 of the 3, but not all of them together because what they imply together is that corporations should behave in a completely amoral way (corporate ethics as taught in business school is to be exactly unethical as you get away with), that they should be empowered by the courts to pursue these ends with all possible tools at their disposal (eg. political donations) and that liability for crossing legal boundaries is mainly a civil matter for the corporation and rarely reaches the humans behind the decisions. It should be fairly obvious to all that allowing entities to exist that possess all 3 of these properties is purely a creation of state policy and does not flow naturally, even from a principle of natural individual property rights (how do you restrict your liability towards 3rd parties by forming an agreement with just a 2nd party – it doesn’t make sense).

Limited liability I think we should stick with, but as a condition of it, it would be appropriate to either do away with shareholder value primacy through shared corporate governance or restrict corporate personhood by eliminating the option for political speech. Preferably, we would start with the latter and then begin with baby steps for the former – I think more experimentation is appropriate there.

With the whole article available I can now wrap up something from the previous thread: This article only considers how damage to natural assets affect humans. It is thereby an instance of political theory that without argument excludes – in the sense of ignoring i.e. in the text not giving any non-instrumental weight or importance to – the interests of affected non-human sentient beings. The full paper and its references makes that even more clear.

That’s my last word on this complaint for now, some may be glad to hear.

Instead, time for praise. John Quiggin I really like your approach here of putting the case for the legal construct of “rights of nature” in the context the of legal protections that corporations already enjoy. It serves the dual purpose of
(1) working through critical arguments on the growing legal powers of corporations and property rights in general, things that are in popular debate too easily reified, and
(2) showing that legal rights of nature would not really be so different from some constructs we’ve already incorporated in legal systems.
That and the slogan of “rebalancing” could prove useful in debates where some opponents predictably will frame even the tiniest proposal for “legal rights of nature” as some scary, radically new legal experiment.

Of course property rights are socially constructed! What isn’t? But …
Have you ever seen dogs interact? They have a strong sense of property: both real and chattel property. And they are happy to enforce their property rights much the same way we do: threats followed by violence. Dogs are indeed social animals, but they’re not symbolic beasts.
I’m using dogs to show that there is a strong psychological component to property, one which limits the power of social construction. (It also limits the power of social deconstruction–it is hard to avoid tangible metaphors for intangible property, at some cost to the coherence of the law.) And similarly, to the extent that property consists of legal rights, the law itself has some autonomy: again which places limits on the social construction of property.
Social construction is always true, and always too simple.

To a person of my background and vintage it’s amazing that anybody would think of property as a natural fact. I guess I shouldn’t be surprised since conservatives have been doing just that for a very long time now, and economists still have to be reminded now and then that economics and physics are non-overlapping magisteria. On the other hand, if being the owner of something is as fictive (= made up) as being somebody’s spouse, it’s no less a part of our reality, which, as it were, takes place on the imaginary plane where everything, including our personhood, has a real part and an imaginary part, a + bi. I get a bit nervous when I read the expression social construction because it sometimes makes people think that the entities and qualities created by cultural postulation are merely conventional signs as if they don’t matter and a perfect and absolute blank sheet is readily available for a new map. Property rights are an invention, but an essential one. They can and obviously have changed over time, but a productive, viable civilization requires some version of property. For that matter, if you’re going to reform property rights, a political action I certainly endorse, you need to evaluate the specifically modern form of property rights to recognize what’s functional about it as well as what’s abusive. Hard to see how you do without something like the corporation, for example.

mpowell@4:
I don’t think that the problem is the triumvirate of limited liability, shareholder value, and corporate personhood. (I view corporate personhood as a mere technical thing, allowing the corporation to go to court under its own name.) The problem is that of corporate political rights that extend beyond mere property and contract rights. If corporations were political eunuchs, we could give them the full triumvirate, and control them through law. But they also have political rights, and a disproportionate power to shape the law in the interest of shareholder value.
The 19th century distinguished between property, civil, and political rights, with property being the most fundamental of these rights, and the state bestowing political rights on those deemed best able to exercise them (white adult men). There is some wisdom to this trichotomy, if not to the way it was implemented.
I view the “corporate social responsibility” movement as an attempt to preserve political rights for corporations, but demand that they act like citizens. A noble goal, but I see no way to operationalize this through law. (Board representation requirements are ineffective.) The only things, IMO, that might work are countervailing power (unions?) or political castration of corporations. I vote for the rusty butter knife.

1) Does the social construction of rights imply that members of rightful relations must be participants in their construction?

2) Rights of nature would seem to imply that some persons are also property. Does this make sense?

3) Is all of nature to be a single person?

Speaking of legal personhood for nature: Te Urawera – what was until 2014 the Urawera National Park in New Zealand has legal personhood under the Te Urawera Act, 2014. It is represented by a board…

One way to mitigate the tension between regulatory policies would be to grant property rights, and the associated legal standing, to nature.

As I said in comments to your recent post on the topic, the important question is to define the set of obligations a human community has towards those (including abstract or non-sentient entities) this human community considers it has a responsibility to care for (this situation encompasses many different but related cases, from dependent elderly to wards in one of the original sense of the terms, to communities, to animals, to rivers, to rather abstract things like cultural expression or the darkness of night skies – and don’t laugh at the last case, it is a serious battle that we are mostly losing, with serious consequences).

This defining task, inducing the hard concrete work of understanding how it translates in direct actions and at which cost, remains largely to be done for the natural ecosystem (but also remains at a very preliminary stage for children, even in the most advanced societies). Once it is done, the outcome can be trivially translated in terms of legal rights granted to the entities in question and arguable before courts, if that is deemed useful within the context of a particular legal system (indeed, progress has often been achieved in this way, so I don’t want to be dismissive of the second step). But we should recognize that the second step is just a second step, and not mistake the prey for its shadow.

To be concrete: there has recently been a string of catastrophic studies on coral mortality in the Great Reef following the heat waves of 2016 and 2017, the last of which in Nature reports a decline of almost 90% in larvae production. What is to be done about this, and at which cost (broadly construed), which should be born by whom? Once we have answered these questions to our collective satisfaction, we can easily decide that this translates in a “legal right” of the Great Reef to reproduce, if need be. But I don’t think we have, even at the level of basic principles, and that is our problem.

John Quiggin @18: “the clearest interest of sentient animals is in avoiding pain” … “Of course, it’s limited to cruelty and excludes some inflictions of pain”

Animals, human and non-human, have a clear interest in avoiding pain but it is implausible to for that reason not consider their other interests. The end of your comment seems to agree with that, but then it goes nowhere. I’m of course glad you’re against whipping horses, I had missed or forgotten that text of yours. I can’t going forward think you consider animal interests worthless then. But still, that is a very narrow case and only focused on pain. A non-speciesist ethical theory will take all animal interests, including their full range of positive welfare, as a an important practical concern in political theory more widely.

The current system of animal exploitation reproduces itself in part by pushing an implausibly thin, negative standard of animal interests. That the industries routinely fail to satisfy even that low standard is telling. Widen the scope to consider all interests and it becomes clear that all current systems of confining and killing animals for food inherently harm animals in many ways.

“The RSPCA is a private advocacy organization, which is endowed with a wide range of powers to act on behalf of animals to prevent cruelty.”

RSPCA has the functional role of humanewashing most of the industrial scale harming of animals going on today. If their purported goals and powers had real macro level bite then all australian animal industries would be permanently shut down. For overviews of harms inherent to the system see
https://www.dominionmovement.com/watch
https://www.aussiefarms.org.au/

This recent talk by activist “Earthling Ed” Winters gives a particular example of RSPCA being complicit with harmful practices, though that example concerns the UK organization.

John Quiggin @23:

“I’ll declare myself as having a part-ownership in a beef cattle farm.”

Holy moly – this explains a lot!

I think you’re massively mistaken on the prevalence of pain, suffering and other harms in the animal industries. But as Upton Sinclair wrote “It is difficult to get a man to understand something, when his salary depends on his not understanding it.” I’ll instead probe a little on the moral theoretic side.

“it’s no more crowded or uncomfortable than a ride on a Tokyo subway”

For human persons the subway riding experience is modulated by knowing the context, the ride duration, the low probability of harm, and so on. But as Peter Singer write in Practical Ethics 3rd edition p52:

“Sometimes animals may suffer more because of their more limited understanding. If, for instance, we are taking prisoners in wartime, we can explain to them that although they must submit to capture, search and confinement, they will not otherwise be harmed and will be set free at the conclusion of hostilities. If we capture wild animals, however, we cannot explain that we are not threatening their lives. Animals cannot distinguish attempts to overpower and confine from attempts to kill them; the one causes as much terror as the other.”

You write

“that cattle would be better off not living at all than going through it is absurd”
… “The cattle don’t know what’s coming, of course.”

Does this mean that you accept the total view in population ethics and the ethics of killing view that there is nothing morally wrong per se with killing an individual if they don’t know what is coming?

If yes to both, do you consistently apply those views also to humans with cognitive capacities similar to those in animals that you do seem to apply the views to? Again Peter Singer, Practical Ethics 3rd edition p52:

“Note, however, that this same argument that gives us a reason for preferring to use human infants – orphans perhaps – or severely intellectually disabled humans for experiments, rather than adults, because infants and severely intellectually disabled humans would also have no idea of what was going to happen to them. So far as this argument is concerned, nonhuman animals and infants and severely intellectually disabled humans are in the same category; and if we use this argument to justify experiments on nonhuman animals, we have to ask ourselves whether we are also prepared to allow experiments on human infants and severely intellectually disabled adults.”

Short test question: Do you think there is nothing directly morally wrong with creating a human child only to raise it for slaughter at age 2? For sake of argument assume away indirect considerations.

Perhaps more species could obtain income from intellectual property rights such as licensing brand names – Tiger balm, Koala brand throat lozenges etc. After all, the bilby will be making some profits this Easter.

John Quiggin @25-26:

Thanks for the continued back and forth.

Operators of animal exploitation industry, including those with battery raised chickens and live sheep exports, routinely report some version of “*our* animals have it good”, no matter how bad the animals have it. I now hear you, another operator of animal exploitation, firmly report similarly. No one should give such mere reports much credence.

“if the only criterion is capacity to feel pain vs pleasure” … “total utility”

It seems again that you rely on the total view in population ethics. Now combined with simple experiential hedonism about value? Doesn’t those views plus utilitarianism entail Parfit’s repugnant conclusion?

“I’ll leave the separate argument about the morality of killing per se for later. I don’t have a precisely articulated view on it”

Ok, I hope you similarly postpone any planned killings.

“I agree that the suffering of sentient animals is morally relevant and that many animal-based industries, including battery raised chickens, live sheep exports and others cause suffering that cannot be morally justified.”

I’m very glad we overlap on that. Though given the number of individual victims in those industries, it is perplexing how absent that issue is from your writings here and elsewhere. For example your recent vision for 2050 excluded it. Yet if the net experiential hedonic utility in Australia year 2050 will be positive or (perhaps massively) negative seem mostly determined by outcomes for non-humans, simply because they are so many more than the humans.

Another Nick

Years ago I trained myself to kill cockroaches with my bare hands; recently I have retrained myself. I’ve applied this training also to the killing with bare hands of silverfish, mosquitoes, and pantry moths. It is true, I acknowledge, that I don’t care about these insects: the reason I had to train myself was not that I cared about the insects but that I didn’t like their smashed remains on my hands. Well, one can get used to that, knowing that hands can be washed. Does the repeated killing of insects warp my humanity? It doesn’t seem so to me, but other people are better placed to judge that than I am. I confess further that when the first strike does not kill a cockroach outright, the wiggling legs and antennae don’t inspire me with a compassionate desire to put it out of its misery as swiftly as possible, but a with a purely instrumental determination to make sure the job’s finished.

I’ve never killed a vertebrate with my bare hands, but I expect I’d be capable of learning to do it (although probably not much good at the job, as I’m not much good at working with my hands in general). I’ve set traps for mice and laid baits for rats, without caring about them. Once I came into a bathroom where somebody else had left the bath full of water and discovered a rat treading water, obviously unable to escape. I considered the situation. I didn’t want to save the rat’s life. From my point of view, a speedy death for the rat seemed preferable to a protracted one (I have to reference my point of view, because who know what the rat’s would be, or even if that question makes sense?), but it was clear to me that any attempt at intervention (even a hypothetical one directed at saving the rat’s life) would be a sure way of getting bitten. So I left it there (although I didn’t care about the rat, I had no affirmative desire to witness its dying struggles) and (as I learned later at second hand) it eventually lost the struggle and drowned. I don’t relish the memory, but I don’t feel troubled by it. Whether this is evidence of inhumanity and a warped mind I can only leave to other to judge.

Lots of people kill vermin, both invertebrate and vertebrate: it’s not just me. I think it’s bad, and dangerous, and disturbing, if people learn to enjoy the death of non-human animals and treat it as a kind of entertainment (as people unfortunately have done throughout human history), but it’s not so clear to me that is has to be a bad thing if people become inured to it, as people surely can. I would prefer to live in a world (which I know this one isn’t) in which nobody kills non-human animals (or human ones, for that matter) for fun, but I’m not equally clear about having a preference for a world in which nobody kills animals at all.

It would be simpler just to assign rights to all property. This has already been done in the instance of corporations, in order to enable corporations to exploit their environments more efficiently.

Rights could equally be assigned to prevent wasteful exploitation, needless destruction, and burdening with externalized costs. ( eg a right not to be polluted. Pollution would be a matter of public policy, as, ultimately are all rights matters of public policy, rather than private expedience.)

J-D @33: “I do not see anywhere a description of harm done to human animals which omits reference to harm done to non-human animals by the same actions.”

Wrong. See my earlier comment about the paper’s chapter 1 objections to lockean moral property orgin myths.

But what is worse, your comment again miss my basic point. Quiggin’s paper without argument excludes – in the sense of ignoring i.e. in the text not giving any non-instrumental weight or importance to – the interests of affected non-human sentient beings.

Miss the part about non-instrumental importance again and I’ll filter you out.

In the Linc-case pollution that made water unfit for livestock is instrumentally negative to the economic interests of farmers. The text mentions that but is silent on harms to animals not instrumental to human interests, even though unowned animals in the area presumably also faced contaminated water. There is no mention of any fine for harms to such unowned animals, as expected. This only strengthens my point.

Contrast: Quiggin could very easily, if he had wanted, either chosen an additional case or formulated an additional example himself where some animals face harm that doesn’t impact negatively on human interests and for that case still propose that the suggested new legal construct be used to curb such harms. He didn’t.