Rule Of Law

'The Rule of Law' by Cass R. Sunstein comments 

The concept of the rule of law is invoked for purposes that are both numerous and diverse, and that concept is often said to overlap with, or to require, an assortment of other practices and ideals, including democracy, free elections, free markets, property rights, and freedom of speech. It is best to understand the concept in a more specific way, with a commitment to seven principles: (1) clear, general, publicly accessible rules laid down in advance; (2) prospectivity rather than retroactivity; (3) conformity between law on the books and law in the world; (4) hearing rights; (5) some degree of separation between (a) law-making and law enforcement and (b) interpretation of law; (6) no unduly rapid changes in the law; and (7) no contradictions or palpable inconsistency in the law. This account of the rule of law conflicts with those offered by (among many others) Friedrich Hayek and Morton Horwitz, who conflate the idea with other, quite different ideas and practices. Of course it is true that the seven principles can be specified in different ways, broadly compatible with the goal of describing the rule of law as a distinct concept, and some of the seven principles might be understood to be more fundamental than others.

Nonhuman Animals, Extraterrestrials and AI

'Harm to Nonhuman Animals from AI: a Systematic Account and Framework' by Simon Coghlan and Christine Parker in (2023) 36(25) Philosophy & Technology comments 

This paper provides a systematic account of how artificial intelligence (AI) technologies could harm nonhuman animals and explains why animal harms, often neglected in AI ethics, should be better recognised. After giving reasons for caring about animals and outlining the nature of animal harm, interests, and wellbeing, the paper develops a comprehensive ‘harms framework’ which draws on scientist David Fraser’s influential mapping of human activities that impact on sentient animals. The harms framework is fleshed out with examples inspired by both scholarly literature and media reports. This systematic account and framework should help inform ethical analyses of AI’s impact on animals and serve as a comprehensive and clear basis for the development and regulation of AI technologies to prevent and mitigate harm to nonhumans. 

... This paper provides a systematic account and a ‘harms framework’ for understanding how artificial intelligence (AI) technologies could damage the interests of nonhuman animals (hereafter ‘animals’). Technology has sometimes greatly benefitted animals, such as via modern veterinary medicine or agricultural machines that relieved ‘beasts of burden’ (Linzey & Linzey, 2016). Yet, technology has also profoundly harmed nonhumans. Construction of the Chicago stockyards and its assembly-line systems in the 1800s, for example, enabled the mass slaughter and processing of animals (Blanchette, 2020; Sinclair, 2002). Around the 1950s, specialised factory-farming technologies like sow stalls, battery cages, and automated sheds further amplified intentional harm to farmed individuals. The Chicago stockyards also soon led to Henry Ford’s assembly-line automobiles, the modern ancestors of which unintentionally kill and injure millions of animals annually (Ree et al., 2015). 

Today, in the twenty-first century, AI has significant potential to harm animals. AI refers to digital technologies that perform tasks associated with intelligent beings like classifying, predicting, and inferring (Copeland, 2022). AI’s growing power owes much to increasing data from, for example, the digital economy, online life, and manifold and integrated sensors in the environment and on or in human and animal bodies (e.g. as wearables)—the so-called Internet of Things or IoT. Its power also stems from modern machine learning (ML), including machine vision, natural language processing, and speech recognition. 

In ML, a system is trained on data from which it learns to make new classifications and inferences beyond its explicit programming. We shall in this paper side-step human-level or general AI (and AI that is arguably sentient), concentrating instead on narrow (and non-sentient) AI that is developed and used for specific purposes (Russell, 2019),Footnote 1 which is arguably of more pressing moral concern than the emergence of very human-like AI. 

Some existing technologies used to manage animals, such as automation in chicken sheds and dairies, may be augmented by AI. Moreover, some robots, drones, and vehicles incorporate AI in ways that may benefit or harm animals. Often the intention in developing and using AI is to positively benefit animals. For example, smart home applications for animal companions (Bhatia et al., 2020) and smart agriculture (Makinde et al., 2019; Neethirajan, 2021b) are often marketed as boons for animal welfare through better monitoring and control of the conditions in which they are kept. Another use that might benefit animals is AI image recognition to help detect illegal wildlife trafficking (O’Brien & Pirotta, 2022). Yet, as we show in some detail, AI can also act—both independently and with existing technologies—to create and amplify harms to animals (Sparrow & Howard, 2021; Tuyttens et al., 2022). 

A tendency exists to see advances in AI as inevitably bringing ‘improvements across every aspect of life’ (Santow, 2020). For example, autonomous machine intelligence can seem more objective and less prejudiced than human intelligence. Nonetheless, society is increasingly recognising AI’s potential for ill (Pasquale, 2020; Tasioulas, 2022; Yeung, 2022). Despite this, the burgeoning scholarship in AI ethics (Bender et al., 2021; Buolamwini & Gebru, 2018; Eubanks, 2018; O’Neil, 2016), while vital and sometimes courageous in critiquing Big Tech power and algorithmic injustice, has largely ignored animals. While some ethicists, including Peter Singer (Singer & Tse, 2022), have recently begun to correct this oversight (see also, e.g.Bendel, 2016, 2018; Bossert & Hagendorff, 2021a; Hagendorff, 2022; Owe & Baum, 2021; Ziesche, 2021), dedicated work on AI and animals is relatively rare. 

This paper’s systematic account of animal harm helps address that gap by setting out the breadth of contexts and plurality of ways in which animals may be harmed by AI. Drawing on the work of animal scientist David Fraser (Fraser, 2012), we develop a harms framework that includes intentional, unintentional, proximate, and more distant impacts of AI. While we do not propose specific ethical or legal responses, the framework provides a comprehensive and clear basis for crafting design, regulatory, and policy responses for animals. 

The paper runs as follows. Section 2 outlines why concern for animal harms is warranted despite a general neglect of animals in AI ethics scholarship, explains the plural range of harms animals can arguably experience, and introduces a practical five-part harms framework or typology that recognises different types and causes of harm to animals from AI. The framework includes intentional harms that are legal or condemned, direct and indirect unintentional harm, and foregone benefits. Section 3 then uses the framework to identify and illustrate actual and possible AI harms to animals in each of the five categories, based on a narrative review of literature. Section 4 concludes by considering implications of our framework and suggesting directions for further research.

'Restating Copyright Law’s Originality Requirement' by Justin Hughes in (2021) 44 Columbia Journal of Law & Arts 383 notes 

The Comments and Reporters’ Notes to § 6 devote an unusual amount of space to human authorship. The draft Restatement takes the view that “[t]o qualify for copyright protection, a work of authorship must be authored by a human being,” and “not, for example . . . works created by nonhuman animals.” The limited case law in this area is sufficiently nuanced as to make one wonder if the Reporters are trying to eliminate preemptively the possibility of “authorship” by artificial intelligence, but this is apparently not their intent. Recognizing that “[a] computer program might someday produce an output so divorced from the original human creator,” the “Restatement does not take a position on” authorship by artificial minds. 

The case law on nonhuman authorship is basically of two sorts. First, there are the cases in which the literary work in question was allegedly authored by sentient beings of a divine, celestial, or spiritual nature; I will call these the “spiritual being cases.” Second, there is one case—the 2018 Naruto v. Slater decision—in which the visual works in question (photos) were arguably authored by a nonhuman primate. The Naruto decision was a fairly singular exercise. People for the Ethical Treatment of Animals (PETA) attempted to bring suit on behalf of Naruto, a crested macaque monkey, against the publisher (and copyright claimant) of a book called Monkey Selfies. 

Both the district court and Ninth Circuit panel concluded that animals do not have standing under Title 17 using “a simple rule of statutory interpretation” previously crafted by the Ninth Circuit: “[I]f an Act of Congress plainly states that animals have statutory standing, then animals have statutory standing. If the statute does not so plainly state, then animals do not have statutory standing.”  This does not really strike me as a principle of copyright law. It was a ruling that nonhuman animals do not have standing under federal law when the law is silent on that issue, not a holding that, as the draft Restatement represents, “[t]he photographs taken by [nonhuman animals] do not qualify for copyright protection because they were not authored by a human being.” Moreover, the connection between the Naruto fact pattern and the spiritual being cases was only made by the Naruto trial court, not the Ninth Circuit. 

It is true that the spiritual being cases have pondered the question of whether a work “claimed to embody the words of celestial beings rather than human beings[] is copyrightable at all.” But we are adrift in terms of direct answers that are holdings and not dicta. Instead, when originality can be attributed to combined activities of humans and sentient nonhumans, courts will conclude that the human participant(s) added enough original expression to support a copyright. For example, in the Ninth Circuit’s 1997 Urantia Foundation v. Maaherra decision, the panel found that humans “pos[ing] specific questions to the spiritual beings,” then selecting and arranging the spiritual beings’ answers was sufficiently creative to confer a copyright. 

Similarly, in the 2000 Penguin Books v. New Christian Church of Full Endeavor decision, a judge in the Southern District of New York considered a “defense of lack of originality” based on the human originator of a book—Helen Schucman— testifying that “she began to hear a ‘Voice’ that would speak to her whenever she was prepared to listen”; that the Voice told her to take notes; and that, for seven years, “she filled nearly thirty stenographic notebooks with words she believed were dictated to her by the Voice". 

But she also made revisions with a (human) collaborator, William Thetford. In addition, “at least some of the editing and shaping of the manuscript was initiated by Schucman; the manuscript went through two additional drafts, one edited by Schucman, one edited by Schucman in collaboration with Thetford; and during this process sections were “rewritten so that the test would flow smoothly and communicate clearly its intended message.” Another colleague, Kenneth Wapnick, later made additional editorial suggestions. 

Concluding that the arrangement of the materials had been determined by the human contributors, that the text “reflect[ed] many of Schucman’s personal interests and tastes,” and that all the editorial changes “were initiated by Schucman, Thetford, or Wapnick,” the court found that there was enough creativity to support human authorship (regardless of whether there was divine joint authorship). But the Penguin Books court went further, offering the alternative reasoning that the work was, plain and simple, “a literary work authored by Schucman” and that, “[as] a matter of law, dictation from a non-human source should not be a bar to a copyright. 

Perhaps the only other spiritual beings case of note is a 1941 district court decision, Oliver v St Germain Foundation, in which the copyright owner Frederick Spencer Oliver, describes himself as the amanuensis to whom “letters” were dictated by Phylos the Thibetan, a spirit.  But the court does not directly hold that the work is uncopyrightable because of the spiritual being source of the expression. Instead, the court treats the spiritual being’s words as “facts” being reported by Frederick Spencer Oliver, analogous to an author of a series of interviews (with humans), who would not have copyright over the words of the interviewees.  The Oliver court also reasons that the defendant copied neither prose nor style and arrangement of the plaintiff’s work,  intimating that those might be protected as original expression from the human contributor to the project. 

Does any of this belong in a Restatement of Copyright? I doubt it. The Copyright Office Compendium says that the office will not register works by nonhumans, but we do not need an ALI Restatement to regurgitate an agency regulation that is not binding on courts. The day sentient refugees from some intergalactic war arrive on Earth and are granted asylum in Iceland, copyright law will be the least of our problems. But I am confident that once those sentient aliens are “nationals” in a Berne country, nothing in Naruto, Urania, Penguin Books, or Oliver will keep them from being treated as “authors” under American copyright law. 

Similarly, once some AI is sentient enough to demand its own civil rights and protection under the Thirteenth Amendment, my guess is that “person” in copyright law will not be limited to homo sapiens. (Since the Reporters apparently agreed todefer to the future on the question of AI authorship, some bits and pieces of the 2020 draft—like Illustration 6 to § 6—should probably be dropped.). Same for the day when a chimeric half human/half horse is proven to be sentient; “person” in copyright law will include them. These issues are fun conjecture for academics, but such issues are so rarefied as to wonder why the draft Restatement discusses them at all

Robots

The National Robotics Strategy Paper released today is to be used to: 

•  set out a vision for the robotics sector in Australia including the value of the domestic market for robotics and automation, and the contribution of these enabling capabilities to the economy 
• address challenges across the national robotics and automation ecosystem, including challenges regarding growth, talent, collaboration, cohesion, workforce impacts, public trust and approval 
• articulate the potential role of robotics and automation in the government’s agendas for the economy, revitalising manufacturing, jobs and skills. 

The government states

While recognising the tremendous opportunities from the production and adoption of robotics and automation, the government is aware of concerns in the community regarding the potential impact that increased adoption of robotics may have on people and on jobs in certain sectors. A key focus of this discussion paper is to explore these views so that we can work to address these concerns and best support Australian workers and communities and create job opportunities. 

The Paper identifies four key themes "from the advice of the advisory committee and the conversations we have had to date with industry, researchers and the broader public": 1. National capability 2. Trust, inclusion and responsible development and use 3. Skills and diversity 4. Increasing adoption 

  Theme 1: National capability Growing Australia’s national capability in robotics and fostering a robotics ecosystem will be critical to growing and improving the complexity of our economy. This will depend on the success of Australia’s robotics research and development, and the commercialisation of this technology. Strengths in enabling areas, such as AI and machine learning research, provide competitive advantages to Australia. A thriving robotics ecosystem would support local companies in these enabling fields, by creating highly valuable robotics markets and increased onshore manufacturing. This provides greater opportunity for collaboration and increases the feasibility of receiving intellectual property protections – such as patents – in hardware-based innovations, relative to those that are software-based. 

From our consultation to date, key areas of focus identified by industry that would help build our national capability include: • demonstrating to Australian businesses across a range of industries the potential use cases and commercial benefits from adopting trusted Australian robotics and automation solutions • improving collaboration across industries and between industry and research organisations • boosting coordination across state and territory governments and the Australian Government to identify shared national robotics priorities and ensure that legislative frameworks are fit for purpose • increasing attraction of domestic and foreign investment, especially at the seed and startup stages • filling gaps in national robotics supply chains, which can hinder Australian companies from scaling up robotic solutions or engaging in end-to-end manufacturing. 

We have heard from researchers and industry of challenges in commercialising their innovations. Australia’s venture capital investment in advanced robotics, while ranked seventh internationally, is only a fraction of that of leaders such as the US, China and Israel. This leads to lower levels of commercialisation, with Australia ranked 14th in patent filing. 

Australia’s relatively small market size and available capital may present barriers for some Australian robotics businesses seeking to commercialise their intellectual property or scale up their business. This may be compounded by the high level of investment needed to develop and test many robotic solutions. On the other hand, our close proximity to large Asian markets, along with similarities to United States and European markets, can help make Australia’s exports internationally competitive. 

Australia’s large land mass and low population density provide opportunities for testing of particular robotics solutions, and can encourage collaboration between international and local research institutions and industry. The development and use of remote test beds in consultation and collaboration with traditional owners and native title holders could create new opportunities for robotics development in Australia. 

The government is committed to investing in boosting Australian industry’s capability in developing emerging technologies, including robotics technologies, to support local talent, local ideas and local commercialisation. The National Reconstruction Fund has $1 billion targeted towards investments in critical technologies. The Buy Australia Plan, including the establishment of the Future Made in Australia Office, will support the creation of new firms and strengthen existing ones by leveraging Australian Government spending. 

Theme 2: Trust, inclusion and responsible development and use 

The success of the robotics ecosystem in Australia depends on ensuring public trust and support of robotics and automation. For the opportunities of robotics and automation to be realised, the development and adoption of these technologies needs to accord with settings promoting trustworthy, ethical and responsible use. 

There has been a popular conception of robots replacing or taking the jobs of humans since the term ‘robot’ originated in the early 20th century. These perceptions are strengthened by popular culture and portrayals of humanoid robots well beyond current technical limitations. The reality of the development and deployment of robots and their impact on the workplace is much more nuanced. 

While the adoption of robotics and automation may disrupt or change particular tasks in certain industries, research indicates that robotics will lead to a net growth in jobs by complementing and improving the productivity and job growth of many sectors. Research from the Organisation for Economic Co-operation and Development (OECD) found that countries that have invested more in robotics have experienced higher levels of employment growth. Industry has indicated it is only through the adoption of robotics and automation that they have been able to expand their operations and perform, for example, manufacturing tasks that would otherwise have been completed overseas.  

It is important that industry and government understand changes brought about from the adoption of robotics and automation. For decision makers in industry considering adopting robotics and automation technologies, the potential benefits of adoption need to be clear. Before committing to the expense, they will need to understand how these technologies will help them: • deliver better products and services • improve productivity • better respond to customer needs • be more competitive • be an attractive place to work or • grow their customer and employee base. 

That is, industry will need to be able to trust that there will be a positive return on their investment. Regulatory settings, standards, reliability, interoperability and robust cyber security arrangements can help foster this trust. Given Australia’s reputation as a trusted source of technology and a leading safety regulator, there is an opportunity for Australia to become a leader in the lawful, ethical and responsible development and use of robotics and automation. 

We have heard from stakeholders that public trust and understanding remain large barriers to increased adoption. We have been told that people are more likely to trust technology when: • they feel in control of setting up the system themselves • they understand and can see how the technology has practical benefits for their individual circumstances • the adoption of the technology is normalised. 

It is also important to consider the impact of these technologies on the broader community, including those not directly involved in their development and use. There is a role for all in the national robotics ecosystem to play in increasing trust and promoting demonstrable benefits to Australians through the adoption of robotics. 

There is an opportunity to improve public education around the role and application of robotics in industry and society. Showcasing positive examples of robotics and automation, including the specific benefits this has had on the workforce, as well as broader social and environmental benefits, will help build this knowledge and trust. 

The robotics industry needs to deliberately consider trustworthy, lawful, ethical and responsible development and use of robotics and automation technologies. This could include researchers, engineers, businesses and training providers working closely with social scientists and ethicists. Ensuring all parts of the robotics ecosystem have a diverse workforce will help assist in developing technology that is inclusive and fit for purpose. Feedback mechanisms that provide an opportunity for community concerns to be identified and addressed will also support this.

Theme 3: Skills and diversity 

We need to build on the pool of smart, innovative Australians excited about robotics to support a thriving robotics sector, and support adoption of these technologies. This includes building a diverse workforce that can develop robotics and automation technology to service the diverse needs across Australia. Training, attracting and retaining talent locally will assist in attracting investment and help drive the domestic startup ecosystem. 

Australia’s technical expertise is well-regarded internationally. Our vocational institutions are highly regarded and our universities are highly ranked, and as a result our graduates are sought after by overseas companies and research institutions. In particular, Australia has world-leading expertise in field robotics, including autonomous underwater vehicles and drones. However, we have heard from stakeholders that domestic industry, especially startups, cannot always offer the same salaries and opportunities that large overseas companies can, leading to local talent going abroad. 

We have heard from companies developing and adopting robotics that a range of skills and vocational training levels are required in the workforce. Some roles may require tertiary or post-graduate degrees, but in many others, it is trade or vocational skills, or those that can be learnt through on-the-job training. In the resources sectors, for example, tailored courses have been developed to upskill and train existing staff in the use of robotics. This not only provides workers with the skills they need, but allows them to see themselves working with new technologies, and to understand the impact on their work and the benefits from adoption. 

As improvements are made to robotics interfaces and usability, particularly in cobotics, the barriers to using and adopting robotics may be further lowered. More broadly, improvements in digital and technical literacy will increase the awareness of robotics and automation technologies in workplaces and board rooms. 

The growth of Australia’s robotics and broader tech ecosystem would benefit from an increase in STEM graduates at both tertiary and vocational levels. As highlighted through roundtables for the Jobs and Skills Summit, more needs to be done to encourage STEM at all levels of schooling and education, including fostering interest in STEM amongst primary school children. At the other end of the talent pipeline, Australia has a distinctive opportunity to build graduates and workers who are skilled in the translation of STEM and social sciences, law and ethics. To support robotics, organisations may require staff with expertise in building public trust and approval, and expertise in the lawful, ethical and responsible development and use of robotics. 

Skilled migration provides another method of securing a talented local workforce in addition to domestic training and education opportunities. Opportunities may come from the employment of skilled migrants in their areas of expertise, and from providing sufficient opportunity for people with skills not available locally to come to Australia or stay in Australia if they have been trained here. The maturity of the robotics industry could also be improved by attracting back the talented Australians that are overseas and who may be unaware of the growing Australian robotics industry. 

The Australian robotics industry would benefit from improved diversity. There is a role for government to encourage diversity in STEM and other fields relevant to development and adoption of robotics in society, aimed both at higher education and life-long learning, with a focus on reskilling and upskilling. More could be done to increase the number of women, First Australians and other historically underrepresented groups in the robotics industry. 

The government has already taken steps to address these challenges. The Diversity in STEM Review, being undertaken by an independent expert panel, will identify barriers to participation and retention, review how current programs are performing and recommend ways to improve participation. The Digital and Tech Skills Compact, announced at the Jobs and Skills Summit, affirms commitment from industry, government and unions to cooperate to help address skill shortages and grow the Australian tech sector. 

As with many technologies, the introduction of robotics and automation will change the way we work. Creating an agile, well-trained workforce will benefit the entire economy as it is predicted that all industry sectors will require increased technological skills in the future. There is a role for industry and government to provide training pathways to support the workforce of the future. 

Theme 4: Increasing adoption 

The benefits of robotics and automation are far reaching. For many industries in Australia, robotics and automation will not only make work more efficient, cost-effective and productive, but also safer and higher quality for their workforce. Through the strategy, we are seeking to support Australian businesses to adopt and integrate robotics into existing business practices, to solve specific business needs and realise the benefits that robotics and automation can provide. 

We are in a good position to spread robotics across the economy where it makes business sense, starting from the sectors that are already leading in uptake and automation. Australia is currently world-leading in the adoption of whole-of-system automation solutions in resources and mining sectors, improving the safety of work in these industries by removing the need for humans to be exposed to dangerous environments or to perform unsafe tasks. We also lead in remote operations, both in operation of mining equipment and in space operations, lending us the experience and expertise to more broadly utilise these field robotics technologies. 

However, in other areas of the economy, Australia lags in robotics adoption. For example, we are behind other OECD member countries in the adoption of industrial robots, which are typically used in manufacturing, with Australia’s annual installations of industrial robots ranked 30th globally in 2021. 

Other sectors, including agriculture and health, have started adopting robotics and automation. In these sectors there is potential for greater adoption to assist with addressing business challenges including workforce shortages and supply demands, and to improve reliability, productivity and sustainability. In healthcare, robotics can assist surgeons to perform surgeries with more precision and efficiency, potentially decreasing surgery waiting times and increasing the time doctors and nurses have to spend with patients. In agriculture, autonomous ground vehicles are being employed to work fields, while drone technology is being deployed in monitoring and surveillance. Meanwhile, autonomous underwater vessels will increasingly be used in management of fisheries. Examples of other sectors where robotics and automation are being used include aerospace, logistics, mineral extraction and emergency management, potentially making these sectors safer, more productive and more internationally competitive. 

Despite the benefits robotics can bring to sectors across the Australian economy, Australian businesses, especially small and medium enterprises, currently face challenges in adopting and integrating these technologies into their operations. We are seeking to better understand and identify ways to resolve these barriers to adoption. 

Australian robotics producers have told us that there is a low level of awareness across some sectors of the advantages that robotics and automation can afford businesses, limiting companies from investing in robotics. We have also heard from some businesses adopting robotics that they prefer to import well known solutions from abroad, rather than spend perceived additional time or take on perceived greater risk working with a local manufacturer. 

Despite many long-term benefits, there are short-term costs and risks for companies when established business processes are disrupted in order to adopt new processes and technologies, including robotics and automation. For small and medium enterprises in particular, this can be a significant barrier to adoption. We have heard from businesses that have realised significant benefits from adopting robotics that the initial adoption period required investment in training, work health and safety, and updating procedures. There may be other instances where the scale of operations or other considerations in particular sectors or businesses are such that, at this point in time, the return on investment from robotics and automation is not yet commercially viable. 

Regulations and standards have a role in providing certainty to businesses so they have confidence to use different technologies in their business processes. We have heard from stakeholders that in some instances, standards and regulations have not kept up with technological changes. Legal frameworks and regulations at times do not extend to robotics, leaving businesses using robotics open to increased uncertainty and potential liability. Additionally, some current industry and workplace health and safety standards do not consider robotics in the workplace or address interoperability that would ensure hardware, software and enterprise systems are compatible.

Personality

In 'Rawls and Animal Moral Personality' by Guy Baldwin in (2023) 13(7) Animals Baldwin comments 

“Moral personality” is required in order to be entitled to justice in John Rawls’s theory of justice, a famous and influential theory in political philosophy. The concept of moral personality involves the possession of two “moral powers”. One moral power is a capacity for a conception of the good, being a conception of what is regarded as worthwhile in life, while the other is a capacity for a sense of justice. Rawls claims that non-human animals (hereafter, “animals”) do not possess these moral powers, and accordingly he omits them altogether from his theory of justice. In this article, I raise doubts about this omission, outlining how at least some animals may indeed possess the moral powers, albeit to a lesser extent than most humans. In this regard, the distinction between humans and animals can be seen as one of degree rather than kind. A proper acknowledgement of animal abilities suggests that Rawls’s theory requires alteration to accommodate the position of animals. 

The relationship between animal rights and contractarian theories of justice such as that of Rawls has long been vexed. In this article, I contribute to the debate over the possibility of inclusion of animals in Rawls’s theory of justice by critiquing the rationale he gives for their omission: that they do not possess moral personality. Contrary to Rawls’s assumptions, it appears that some animals may possess the moral powers that comprise moral personality, albeit to a lesser extent than most humans. Some animals can act in pursuit of preferences and desires (and communicate them non-verbally), which might be taken as implicitly selecting a conception of the good; further, scientific research demonstrating inequity aversion and social play behaviors suggests that some animals can have a sense of justice relating to their own social groups. I conclude that Rawls’s theory needs to acknowledge any animals that can be considered to meet the threshold of moral personality, while the concept of moral personality as a range property may also require reconsideration. 

A limitation of John Rawls’s theory of justice is that the position of non-human animals (hereafter, “animals”) is treated as outside the scope of the theory. Although Rawls considered cruelty towards animals and the destruction of an entire species to be wrong, animals are said not to be entitled to justice [1] (pp. 441–442, 448–449). The reason offered for this exclusion is that animals are not “moral persons”. Moral personality involves two moral powers—the capacity for a conception of the good and the capacity for a sense of justice—that are claimed to be uniquely human attributes. Rawls’s position seems to mean that, as Martha Nussbaum puts it, “[e]ven … the twentieth century’s greatest philosopher of justice … held that it was virtuous to treat animals with compassion, but that they could not be treated justly or unjustly” [2] (pp. 8–9). The relationship between animal rights and contractarian theories of justice such as that of Rawls has long been vexed; a key difficulty is how to include animals in such theories if they are unable to participate effectively in the making of a social contract [3]. Mark Rowlands argues that “there is nothing in contractarianism per se that requires the contract be restricted to rational agents”; even if the framers of the contract have to be rational agents, its recipients do not (p. 236). Meanwhile, Robert Garner claims that Rawls’s approach cannot adequately explain the position of “those humans who are less endowed with rationality or autonomy”, invoking the well-known argument from so-called “marginal cases” [4] (p. 7), though he has also critiqued this argument [5]. The contribution of this article is to consider a different, under-explored issue: the merits of Rawls’s claim that animals do not have moral personality, which underpins their exclusion from his theory of justice. 

In ascribing moral personality only to humans, Rawls treats humans and animals as qualitatively different. Rawls’s concept of moral personality is widely assumed to “clearly preclude animals” [6] (pp. 2–3). However, as Rowlands says, “the all or nothing manner in which discussions of non-human rationality tend to be discussed is eminently questionable, on both theoretical and methodological grounds” (p. 236). Indeed, I argue that some animals might be better viewed as possessing moral personality, though to a more limited extent than most humans. The difference between humans and animals in this regard may be thought of as one of degree rather than kind, to adopt Charles Darwin’s words [7] (p. 179). Nonetheless, acknowledgment of the lesser degree of moral personality possessed by some animals is likely to require significant alterations to Rawls’s theory. Although I seek to establish some problems with Rawls’s account, modifying the theory to accommodate the possibility of animal moral personality is not attempted here. Further, I do not suggest that possession of some measure of moral personality means that animals (or, for that matter, humans) cannot or do not perform acts that inflict suffering on others. xx The article proceeds in three parts. First, I address Rawls’s analysis of the position of animals in his theory. As will be shown, Rawls’s theory is already consistent with the view that animals are owed moral concern. Nothing prevents legislators from protecting animal welfare or rights. However, Rawls considers that due to their claimed absence of moral personality, animals are not owed justice, and this may mean that animal protection is of lower priority than the principles of justice. Second, I question Rawls’s approach by analyzing the position of animals in respect of each of the moral powers. I suggest that Rawls’s conclusion that animals do not have moral personality is too simple; there is reason to consider that at least some animals can potentially possess the moral powers, albeit to a lesser degree than humans. Third, I conclude with a short reflection on the possible implications of this analysis for Rawls’s theory.

Undead

In Richard v Beresford [2023] NZHC 500 McQueen J addressed a stranger than usual sovereign citizen claim. 

The judgment states 

 [1] On 1 March 2023, “richard”, described as the “complainant”, presented to the Wellington High Court a “Bill in Chancery” (which I will refer to as “the claim”) together with an unsworn affidavit in support. The matter has been referred to me as Duty Judge by the Registrar under r 5.35A of the High Court Rules 2016. ...   

The claim 

[6] The claim is lengthy and sometimes difficult to understand. It does not comply with the High Court Rules 2016 and indeed asserts that Court rules are not to apply. It appears to seek declaratory and injunctive relief. The complainant wishes to have the claim determined in a court “of Chancery”, notwithstanding that no such court exists (or has ever existed) in New Zealand, in which the courts have a “fused jurisdiction”, meaning the ability to exercise both common law and equitable jurisdiction. 

[7] There is an immediate issue in that the complainant and the defendant are the same person. This is a result of what the complainant has described as the distinction between himself as “Richard” and the legal entity “RICHARD JOHN BERESFORD”, which he considers was created at the time of his birth through his birth certificate. This is presumably why the defendant is named as being “RICHARD JOHN BERESFORD c/- Registrar General of New Zealand”, which is likely intended to refer to the Registrar-General charged with the administration of the Births, Deaths, Marriages, and Relationships Act 1995. 

[8] The complainant appears to seek that the legal entity “RICHARD JOHN BERESFORD” as described in his birth certificate have its status changed from “living” to “deceased”, because:

The self-evident truth of the matter is that the extra feto embryonic material and placenta also born slightly later on that day also died on that day, it died by abortion and an act of violence with a weapon, died prematurely as an act of, maybe unwittingly by the assaulter, of intentional premeditated interference in the divine natural order of life, depriving me of my due remaining sustenance. Regardless i [sic] survived the premature abortion of my sustaining organ, whole, but at the end of the day, thankfully, my extra feto embryonic material and placenta became deceased. As the registered event entity is deceased, it [is] now required, pertaining to 88 of the United Nations Department of Economic and Social Affairs Handbook on Civil Registration and Vital Statistics Systems, Management, Operation and Maintenance, revision 1, New York, 2021, and as a function of the civil registration component, that the assigned PIN of the deceased person RICHARD JOHN BERESFORD, be changed, by retirement of the PIN of RICHARD JOHN BERESFORD by flagging the PIN or changing its status from “living” to “deceased”, as prescribed by law. 

[9] Claims such as the present one are characteristic of the consent-based Sovereign Citizen, “dual personality” or “Organised Pseudolegal Commercial Argument” (OPCA) theories that have been consistently rejected by the courts as legally untenable and “without legal foundation”. 

[10] Pseudolegal claims:

...[mirror and co-opt] the language, forms and structures of legal reasoning [but lack] substantive engagement with the core norms, principles and methods of legal reasoning. Proponents of pseudolaw appear to have a genuine belief that their doctrines represent the ‘true’ position of the law where more ‘mainstream’ approaches have become illegitimate for some reason(s). This means that adherents can disregard existing legal norms while simultaneously retaining of a self-conception of lawfulness and righteousness. 

[11] Such claims are undoubtedly damaging, and are a growing issue across the common law world. As has recently been stated, pseudolaw:

...hurts litigants, their families (whānau), and friends. Litigants employing pseudolaw waste time and money. They forego the opportunities to obtain capable legal representation. It creates opportunities for scammers and charlatans. Pseudolaw is also harmful to the proper administration of justice. Legitimate legal issues may be buried under pseudolegal gibberish and could be dismissed too hastily.

[12] In line with this approach, the Sovereign Citizen or “dual personality” pseudolegal belief is that “sovereign” individuals are not bound by the laws of the jurisdiction in which they reside unless they waive their rights and accept a contract with the government. Litigants who ascribe to this belief typically write their names in a non-standard fashion, thereby seeking to demonstrate that they do not consent to the Court’s authority. 

[13] The part of the complainant’s claim that seeks to change his birth status from “living” to “deceased” appears to me to seek that this Court engage in legitimising that theory, essentially to validate the complainant’s position that the law only applies to fictional legal personalities, rather than natural persons. It appears that the complainant believes that:

Because every person has inalienable, natural rights, governments must assert their authority over natural or ‘flesh and blood’ persons to make them subjects. Governments do that, for example, when a birth certificate, bank account, driver’s licence, or government identity is issued. Those actions create an ‘artificial’ person – a legal person, personality, corporation, or ‘strawman’ – over whom the government and its agencies, which are parallel corporate forms, have jurisdiction. The crucial aspect is that the natural or living man or woman is freed from government subjection when they assert their status, claim it, and prove it.

[14] This is clear in the naming of the parties in the complainant’s claim. He, as a ‘natural person’, seeks to be divorced from the “artificial” conception of him as a legal person, which he believes is embodied in his birth certificate.   The complainant seeks the same outcome for his five children. 

[15] The complainant also seeks orders including:

(a) the granting of probate for the estate of the deceased person RICHARD JOHN BERESFORD, and also his five children, on the basis that they are all deceased persons; 

(b) primary care of his children, notwithstanding that it appears their mother, his ex-partner, presently has primary care of them; 

(c) counsel and resources to assist him to obtain primary care of his children; 

(d) an order that his ex-partner return to Wellington with his children; 

(e) an order that enables him to choose and commission a therapist or counsellor for his children; 

 (f) an order that removes or discharges the matters in CRI-2021-096-3103, and CIV-2021-485-502; 

(g) if he is “deemed [to] have behaved unlawfully”, an order to bring him before a “proper” court of law; 

(h) an order to provide him with evidence relating to his ex-partner that would assist the court; 

(i) an order that his children are not to be involved in “exploitation involving slavery or death of our neighbours”; 

(j) an order that he and his children are not to be subject to “any weapons of war”; and 

(k) an order that any order made applies to his children until they are 21- years-old.

[16] The complainant also records that he will “give up and forsake everything the commercial world has offered and given to [him]”. 

[17] The complainant provided an affidavit in support of his claim, which was not sworn or witnessed. The content of that document largely contains quotes from various sources, including but not limited to the Bible, Shakespeare, Francis Bacon, Webster’s Dictionary, Black’s Law Dictionary, the Oxford Dictionary, and Butterworths New Zealand Law Dictionary. The exhibits attached to that affidavit contained further quotes from other sources, which the complainant seems to consider support his claim, as well as the birth certificates of him and his children. The affidavit also includes what appears to be correspondence with the Department of Internal Affairs (DIA) in which DIA has declined the complainant’s request to discharge certain public records. 

Analysis 

[18] The complainant’s claim does not articulate any valid cause of action and seeks orders that the Court is unable to grant. Chief among the barriers to the complainant’s claim is the view that his birth certificate can be changed to say that he is dead, when he is plainly very much alive. The same applies as in respect of his children. ...

Ontologies

'Connecting Science to Indigenous Knowledge: kaitiakitanga, conservation, and resource management' by Tara McAllister, Daniel Hikuroa and Cate Macinnis-Ng in (2023) 47(1) New Zealand Journal of Ecology 3521 comments 

Indigenous Knowledge (IK) provides effective solutions to environmental threats and pressures. Using approaches that fully include Indigenous concepts, ideas, worldviews, knowledge, process, and practice helps the recovery of threatened species and endangered ecosystems, but it is essential that such work engages with Indigenous Peoples and that engagement is respectful, reciprocal, and meaningful. We support using mātauranga (Māori knowledge, culture, values, and worldview) alongside science, because incorporating socio-cultural perspectives and initiatives allows sustainability to be addressed in a more holistic way. This collaborative group of Māori and Pākehā researchers brings a range of perspectives and expertise to the challenge of working at the interface of IK and science, and practices of conservation and resource management. In developing a deeper understanding of kaitiakitanga, which is often translated as “guardianship”, “stewardship”, or the “principle and practices of intergenerational sustainability”, when working in partnership with Māori, Western-trained scientists can meaningfully acknowledge Māori values, knowledge, process, and practice in their work. This enhanced consideration of kaitiakitanga requires bringing together intricately linked concepts such as whakapapa, rangatiratanga, mana, mauri, tapu, noa, and manaakitanga. In this paper, we aim to guide Western-trained scientists and other practitioners in understanding kaitiakitanga so that they can meaningfully engage through an enhanced understanding of Māori worldviews, knowledge, process, and practice. We also aim to highlight the synergies and differences between kaitiakitanga and conservation and resource management, whilst providing examples of how kaitiakitanga can be used to enhance conservation for holistic sustainability outcomes. We emphasise the benefits and importance of working with Māori communities for long-term partnerships based on mutual trust and respect.

The authors argue 

Aotearoa New Zealand’s already stressed natural environment is facing increasing threats and pressures (Brown et al. 2015; Norton et al. 2016; Ministry for the Environment & StatsNZ 2022). Invasive species, destructive fishing practices, extractive industries, a changing climate, and intensification of agriculture are examples of processes that are causing ongoing environmental degradation (Brake and Peart 2015; Clarkson et al. 2015; OECD 2017; Macinnis-Ng et al. 2021; Ministry for the Environment & StatsNZ 2022). We need to acknowledge customary ways to conserve threatened species and endangered ecosystems and enact resource management because the current methods and/or their implementation often exclude Indigenous peoples (e.g. Ruru et al. 2017). Using mātauranga (Māori knowledge, culture, values, and worldview) alongside science is an effective way forward, as weaving multiple knowledge- systems, socio-cultural perspectives and initiatives allows sustainability to be addressed in a more holistic way (Lyver et al. 2018; Marques et al. 2019; Hill et al. 2021). 

Indigenous practices of ecosystem management across the globe include a range of tools such as resource management and landscape patchiness incorporated with social dimensions of intergenerational knowledge transmission and the development of specific world views and cultural practices (Berkes et al. 2000). The global review by Berkes et al. (2000) draws parallels between adaptive management and Indigenous approaches because they include feedback learning and evolving understanding of dynamic systems. Recognition of the value of Indigenous Knowledge (IK), which emerges from a worldview that sees the people and the knowledge as being of the land, is growing in the international literatures of ecology and conservation with key papers like Berkes et al. (2000) receiving over 5000 citations. Alternative perspectives and highly detailed local knowledge combined with social mechanisms and customary practices in tune with environmental and ecological processes are key aspects of Traditional Ecological Knowledge (TEK; Berkes et al. 2000; Wehi et al. 2019). Although TEK is a subset of IK and is now widely acknowledged as an empirically sound and rich resource for community-based resource management (Lauer 2017), it has also been critiqued, because as conventionally practiced it can colonise IK by removing it from its cultural context and applying it within non-Indigenous management plans (McGregor 2004). So, despite having strong alignment with the definition of TEK in Berkes et al. (2000) we find the term Indigenous Knowledge better captures the evolving nature of modern Indigenous knowledges and remains consistent with ever-growing insights and expertise. In response to the bi-cultural approach being undertaken in Aotearoa New Zealand we use IK in general, otherwise mātauranga – the knowledge, culture, values, world view, process and practice of Māori, the Indigenous peoples of Aotearoa New Zealand. Therein bi-cultural approaches to conservation that include frameworks for effective collaboration and prevent cultural appropriation can empower local communities to build strong societal relationships with the natural world while addressing declines in biological and cultural well-being (Lyver & Tylianakis 2017; Lyver et al. 2018, 2019; McAllister et al. 2019; Wehi et al. 2019). While excellent examples of collaborative research are becoming more common (Clapcott et al. 2018; McAllister et al. 2019), globally and nationally many ecologists and conservation biologists continue to operate entirely independently of IK and fail to recognise the global importance of Indigenous lands for conservation (Garnett et al. 2018). For instance, Norton et al.’s (2018) paper on restoration of native biodiversity in Aotearoa only mentioned Māori as a relevant community group, failing to acknowledge the role Māori should play in restoration (Ruru 2004). 

In this review and synthesis, we explore kaitiakitanga, a key Māori concept informed by IK and often linked with conservation, and aim to give Western-trained scientists (acknowledging that Western science also marginalises Eastern cultures; Memmi 2019) and practitioners a better understanding of what kaitiakitanga is beyond (mis) interpretations of “guardianship” or “stewardship”. We also explore some synergies and dichotomies between kaitiakitanga and conservation and highlight some recent examples of co-developed research and monitoring projects. While we specifically discuss Māori worldviews and their relevance to Aotearoa New Zealand in this paper, we believe scientists across the world would benefit from being aware of these concepts because of the similarities and connectedness of many IKs. In addition, indigenising conservation policy is essential globally because colonial conservation ideologies perpetuate injustices to Indigenous human rights to the detriment of human and environmental well-being (Domínguez & Luoma 2020). 

In our broad definition of conservation, we include threatened species recovery, protection of endangered ecosystems, and sustainable resource management. While these three areas are traditionally seen as siloed areas of work, each is clearly tightly interwoven and using a holistic and inclusive understanding of these concepts (consistent with te ao Māori), is essential for effective progress in all three fields. 

Acknowledging and elevating mātauranga is important in Aotearoa New Zealand in order to honour Te Tiriti o Waitangi and the Wai 262 claim (Geismar 2013; Houghton 2021; Potter & Māngai 2022). Te Tiriti o Waitangi is New Zealand’s founding document: an agreement in both Māori and English languages, made between rangatira, Māori chiefs, and the British Crown. The chiefs signed the Māori language version and significant differences in the intent and meaning of key terms between the Māori and English versions created challenges from the outset, followed by deliberate breaches by successive governments through following decades (Charters & Whare 2017; Mutu 2018; Mutu 2019). Furthermore, the rule of contra proferentem which translates as “interpretation against the draughtsman” and was in use in 1840 (and continues in the present-day) is a contractual interpretation that views that, where a term, promise, or agreement is ambiguous, the meaning that is prioritised is the one that works against the interests of the party (the British Crown) who provided the ambiguous wording to begin with. Therefore, the correct version is Te Tiriti o Waitangi, the reo Māori version (Kwan-Parsons 2021). The Waitangi Tribunal, established in 1975, is a standing commission of inquiry that makes recommendations on claims brought by Māori relating to legislation, policies, actions, or omissions of the Crown that breach the conditions made in Te Tiriti o Waitangi. Settlement of Treaty breaches with a particular iwi (tribe) includes a Crown apology and the transfer of cash and assets to a Post-Settlement Governance Entity. Ataria et al. (2018) explain how the Treaty of Waitangi—English language version—specifically covers lands, estates, forests, fisheries, and other properties and the Wai 262 claim covers Indigenous culture, flora, and fauna consistent with Te Tiriti o Waitangi, the Māori language version. The Treaty settlement era has seen a resurgence and reconnection between the environment and people, which has resulted in cultural concepts, including kaitiakitanga, being incorporated in policy (Resource Management Act 1991) and research (Kawharu 2000; Henwood & Henwood 2011). Furthermore, kaitiakitanga is increasingly being incorporated as a key part of some national funding schemes (National Science Challenges; Sustainable Seas, Our Land and Water) and also in wider scientific discourse (Hikuroa et al. 2011; Dick et al. 2012; McGinnis & Collins 2013). The proliferation of iwi environmental management plans (e.g. Hauraki Māori Trust Board 2012; Mahaanui Kurataiao Ltd 2013; Te Ātiawa ki Whakarongotai Charitable Trust 2019) has also highlighted the importance of kaitiakitanga. 

The development, adoption, and implementation of policy frameworks like Vision Mātauranga (MoRST 2005) have incentivised and resulted in increased scientist-initiated engagement with Māori, and in some cases, Māori initiated engagement with scientists. Well-intentioned scientists and practitioners are seeking to incorporate mātauranga, but in our collective experience, a general lack of understanding of kaitiakitanga is thwarting their efforts and runs the risk of cultural appropriation. Here, we highlight the similarities and differences between kaitiakitanga and conservation, and urge non-Māori scientists and practitioners, even if they are working in genuine partnership mana whenua, to refrain from the “we’re all kaitiaki now” sentiment, as witnessed by all three authors on many occasions. Ataria et al. (2018) clearly articulate the risks of poor-quality engagement with IK and describe ways forward for mātauranga to enrich contemporary scientific thinking and, globally, Latulippe and Klenk (2020) advocate for Indigenous research leadership to combat this issue. 

We have collectively experienced kaitiakitanga becoming a buzzword in Aotearoa New Zealand’s scientific and regulatory community, frequently used by environmental managers and science organisations in Aotearoa New Zealand divorced from its cultural context. Despite the widespread adoption and use of the term kaitiakitanga by these organisations and practitioners, a deep and true understanding of its significance and meaning is usually lacking. This has resulted in the widespread belief that kaitiakitanga equates with conservation guardianship, and we support the argument put forward by others (Kawharu 2000) that this is an oversimplification of a rich and complex concept and set of practices, from a different worldview. Roberts et al. (1995) suggests that in order to fully understand a cultural concept (and to prevent the misuse of superficially acquired knowledge), such as kaitiakitanga, one must first serve an apprenticeship. In this particular case, it means kaitiakitanga must be understood within its cultural context, rather than severed from values and related concepts, which ground it within te ao Māori. Similarly, Wehi et al. (2020) describe the philosophical responsibilities of working with mātauranga. Here, we aim to guide conservation scientists and practitioners in understanding kaitiakitanga so that they can meaningfully engage through an enhanced understanding of the Māori worldview. Despite kaitiakitanga not being equivalent with conservation, its widespread use either interchangeably and/or as a proxy for conservation has prompted this article.