with apologies to Te Awa Tupua
Like animal rights, the rights of nature are often invoked as a model for thinking about the rights of robots. In March of 2017, for example, the Parliament of New Zealand “confer[ed] a legal personality on the Whanganui River” as part of a settlement with the Maori tribes that traditionally lived along its banks. Scholars like David Gunkel and Josh Gellers frequently cite this act as a key moment in the history of “rights for non-humans” and, therefore, an opening to the possibility of granting rights to machines. If a river can be a person, and the subject of rights, why can’t a robot or other artificial entity?
The short answer is that the Whanganui river, in the sense that we who are oppressed by the Western metaphysics of presence understand it, was not granted personhood by the Te Awa Tupua Act of 2017. Te Awa Tupua is not just a river and its rights belong to a spirit, what the Romans called a genius loci. From the point of view of the Western legal tradition, Te Awa Tupua is basically a corporation tied to a specific geography, much like an incorporated town. The river itself, which is to say, the watercourse through the landscape that we Westerners too easily point to and call “the” Whanganui, does not have any rights according to the law.
The purpose of this post is to think some of these issues through. As usual, I’ll try to bring the discussion around to the possibility that an artificial entity could be an “author”; that is, I will try to see whether Te Awa Tupua can provide a model for a “legal personality” for, say, GPT-3, giving it rights of authorship. The answer is not quite no, but also not quite (and you’ll have to pardon me for not killing this darling of a pun) the watershed moment for “robot rights” that Josh and David imagine.
Obviously, I’m not here challenging the legal personhood of Te Awa Tupua, nor suggesting that it shouldn’t have any rights. The Act clearly says that it does and, as we’ll see, I appreciate the legal brilliance of the settlement. The question I want to address is, What — or, indeed, who — has those rights? Already back in 2012, when the agreement was first reached, the Ministry of Treaty Negotiations made clear that the river would be recognized as a person “in the same way a company is, which will give it rights and interests.” When the act was passed, this idea was stressed again. “I know the initial inclination of some people will say it’s pretty strange to give a natural resource a legal personality,” said Chris Finlayson, who had negotiated the settlement. “But it’s no stranger than family trusts, or companies or incorporated societies.” As I want to show in this post, this interpretation is borne out by the act itself, though, like I say, couched in strangely metaphysical language.
Let’s begin with the sentence in the law that Josh and David wish to emphasize.
14(1): Te Awa Tupua is a legal person and has all the rights, powers, duties, and liabilities of a legal person.
This does indeed seem pretty unambiguous. But let’s pause for a moment to notice that it does not say that the Whanganui River, which is the official name of the watercourse and what you will find on a map, is a legal person. Rather, it says that an entity called Te Awa Tupua, which is what the Maori call it, is a legal person. You don’t have to be Willard Van Orman Quine to find this a little interesting. What is this entity that the law refers to? Is it just the Whanganui River? Or is it something else?
As it happens, Quine wrote a paper many years ago in which he worked through in elabaroate detail how it is or isn’t possible to step into, or rather, refer to the same river twice.
The introduction of rivers as single entities, namely, processes or time-consuming objects, consists substantially in reading identity in place of river kinship. (“Indentity, Ostension, and Hypostasis”, in From a Logical Point of View, p. 66)
As you can imagine, we’re going to end up making a great deal of this poetic notion of “river kinship”. For Quine, for now, all turns on the profound ambiguity of the apparently simple act of pointing to something.
Such ambiguity is commonly resolved by accompanying the pointing with such words as “the river”, thus appealing to a prior concept of a river as one distinctive type of time-consuming process, one distinctive form of summation of momentary objects. (p. 67)
Until, that is, we know what the Maori mean when they say “Te awa tupua,” we don’t know what sort of thing has been declared a person in New Zealand law. They may as well say “gavagai!” Fortunately, we can read the law to find out; specifically, we can read the two sections before the one I have already quoted.
(12) Te Awa Tupua is an indivisible and living whole, comprising the Whanganui River from the mountains to the sea, incorporating all its physical and metaphysical elements.
Already here we can see that Te Awa Tupua is more than the river; it “incorporates all its physical and metaphysical elements” to constitute an “indivisable and living whole”. But that is not all; this whole also has an identifiable essence:
(13) Tupua te Kawa comprises the intrinsic values that represent the essence of Te Awa Tupua, namely—
Ko Te Kawa Tuatahi
13 (a) Ko te Awa te mātāpuna o te ora: the River is the source of spiritual and physical sustenance:
Te Awa Tupua is a spiritual and physical entity that supports and sustains both the life and natural resources within the Whanganui River and the health and well-being of the iwi, hapū, and other communities of the River.
Ko Te Kawa Tuarua
13 (b) E rere kau mai i te Awa nui mai i te Kahui Maunga ki Tangaroa: the great River flows from the mountains to the sea:
Te Awa Tupua is an indivisible and living whole from the mountains to the sea, incorporating the Whanganui River and all of its physical and metaphysical elements.
This basically restates the definition already set out in section 12, but the next two subsections are crucial for our understanding of how Te Awa Tupua, and not just the Whanganui River, can be a legal person.
Ko Te Kawa Tuatoru
13 (c) Ko au te Awa, ko te Awa ko au: I am the River and the River is me:
The iwi and hapū of the Whanganui River have an inalienable connection with, and responsibility to, Te Awa Tupua and its health and well-being.
Ko Te Kawa Tuawhā
13 (d) Ngā manga iti, ngā manga nui e honohono kau ana, ka tupu hei Awa Tupua: the small and large streams that flow into one another form one River:
Te Awa Tupua is a singular entity comprised of many elements and communities, working collaboratively for the common purpose of the health and well-being of Te Awa Tupua.
That is, the “indivisible whole” called Te Awa Tupua includes the human communities that traditionally reside, not just near the banks of the river that flows from the mountains to the sea, but, in all the lands nurtured by the “small and large streams” connected to it. These human communities (iwi) are “inalienably” connected to it.
Indeed, right after this metaphysical entity is given personhood in law, the terms of its representation are also spelled out:
14(2) The rights, powers, and duties of Te Awa Tupua must be exercised or performed, and responsibility for its liabilities must be taken, by Te Pou Tupua on behalf of, and in the name of, Te Awa Tupua, in the manner provided for in this Part and in Ruruku Whakatupua—Te Mana o Te Awa Tupua.
And what, then, is Te Pou Tupua?
18(1) The office of Te Pou Tupua is established.
18 (2) The purpose of Te Pou Tupua is to be the human face of Te Awa Tupua and act in the name of Te Awa Tupua.
18 (3) Te Pou Tupua has full capacity and all the powers reasonably necessary to achieve its purpose and perform and exercise its functions, powers, and duties in accordance with this Act.
It seems pretty clear to me that this settlement is an ingenious way of constructing an entity that respects both indigenous and Western conceptions of community. “It is wrong to say that they are identical,” Quine might say from his “logical point of view” (cf. p. 66), “they are merely river-kindred.” From the point of view of the law and the legal system Te Awa Tupua is a kind of trust or corporation, as Finlayson puts it, but from the point of view of the iwi that inhabit it, it is a living being of which they too are a part. “I am the river,” they say. “The river is me.” The settlement has managed to, literally, put a “human face” on this natural relationship for the purpose of administering it within the current system of rights, while at same time “incorporating” (i.e., embodying) its “metaphysical elements”. Here David might invoke Derrida:
One of the definitions of what is called deconstruction would be the effort to take this limitless context into account, to pay the sharpest and broadest attention
possible to context, and thus to an incessant movement of recontextualization. The phrase which for some has become a sort of slogan, in general so badly understood, of deconstruction (“there is nothing outside the text” [it n y a pas de hors-texte]), means nothing else: there is nothing outside context. (Limited Inc, p. 136)
In a sense, yes, the idea that “there is nothing outside the river” deconstructs the Western metaphysics of presence (which would ignore even Heraclitus’s warnings about stepping into rivers twice). But, as Wittgenstein would point out, this deconstruction nonetheless “leaves everything as it is,” from the mountains to the sea. After all, Bob Dylan’s honesty notwithstanding, there is nothing outside the law either.
This is all bit too fast and loose, I know.* I need to tighten up this analysis and bring its metaphysical elements into sharper focus. (There is much more to be done with both Quine and Derrida.) But I’m beginning to see the outline of an argument for robot rights, specifically, the rights of authorship for large language models like GPT-3. Fortunately, just as the Te Awa Tupua Act doesn’t give any rights to the merely physical process that is temporarily represented on the map as an object called the Whanganui River, this argument would never give rights to an algorithm or a database itself. It would always require an act of “incorporation”, a legal embodiment, and, yes, a “human face” to represent it. We already know how to speak of an author’s “body of work” and how to govern it. “I am the text,” the author says. “The text is me.” But the author dies, as Barthes pointed out, and a reader is born who can say the same. Maybe the future of text production is not so radical after all.
I hope you find this as invigorating as I do. I’ve decided to continue thinking about this by moving on to another law that David and Josh like to invoke, namely, the law governing personal delivery robots in Virginia. This analysis of the personhood of Te Awa Tupua provides a good model for the work that needs to be done to understand the precise sense in which those robots “have the rights of pedestrians” on the sidewalks of Norfolk. When I’ve worked that out, maybe, finally, I will be able to say precisely why I think robots can’t write.
Maybe two or three posts more. Then I’ll head off for a late summer vacation. And then, I promise, I will stop pretending to be a philosopher and legal scholar and return to the subject of how human beings can become better writers in the here and now.
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*Update: After reading it, Josh expressed his disappointment with the scholarship behind this humble post on Twitter. If you want a sense of how Te Awa Tupua is discussed by scholars of environmental law, I can now recommend three good pieces.
Christopher Rodgers’ “A new approach to protecting ecosystems: The Te Awa Tupua (Whanganui River Claims Settlement) Act 2017” in the Environmental Law Review 19(4) seems to be the obligatory reference (Josh cites it in his book, Rights for Robots, on p. 127). It offers a good summary and analysis of the facts. Michelle Worthington and Peta Spender’s “Constructing legal personhood: corporate law’s legacy” in the Griffith Law Review 30(3) and Seth Epstein, Marianne Dahlén, Victoria Enkvist, and Elin Boyer’s “Liberalism and Rights of Nature: A Comparative Legal and Historical Perspective,” forthcoming in Law, Culture and the Humanities, both use the case in broader analyses of corporate and natural rights. All three are, as far as I can tell, a little more impressed with the legal novelty of the Te Awa Tupua settlement than I am, but I remain convinced that it is not the ontological innovation that would be needed to extend rights to machines in any radical way. That’s, of course, something I’ll need to return to.
Update (25/09/22): David Gunkel recently drew Visa Kurki’s A Theory of Legal Personhood to my attention, which presents a very similar argument about the Whanganui River in chapter 4.