Monday, February 11, 2013

Non-human Agents

In Lin Ostrom's Institutional Analysis and Development (IAD) framework (see below), bio-physical systems, community attributes and rules are inputs into action situations, in which humans interact for various purposes, ranging from collective-choice decisions about new or amended rules to operational-level decisions about production and provision of goods, debt or equity financing of purchases, exchange, etc. (all of which are affected by rules adopted at collective-choice levels and/or norms established by prior interactions).

More than once in the past couple of weeks, anthropologists at the Ostrom Workshop have mentioned that Lin's IAD Framework is Western-centric in its presumption that only humans are actors in the action arenas (or, as Lin later preferred to call them, action situations). They point to "Eastern" cultures
in which land and other resources are invested with independent agency, so that they become as actors in collective-choice or operational action situations.

Needless to say, taking account of resources as agents would require a substantial reworking of the IAD framework. But before we start down that road, I want to insert a note of anthropocentric skepticism, based on observations William Baxter made in his 1974 book, People or Penguins: The Case for Optimal Pollution (Columbia Univ. Press). Ordinarily, I don't pay much attention to works with the word "optimal" in the title because I find the authors usually end up constructing models with virtually no application to real-world problems. This is not the case, however, with Baxter's book, which makes the important point that only humans (so far as we are or can be aware) are capable of expressing and ordering preferences and deliberating over trade-offs. As a practical matter, this prevents us from giving real agency to land or other resources, which are unable to state preferences or make trade-offs, at least in any ways that we might understand. This hardly  means that land and other resources have no value. In fact, as Baxter explains, we humans tend to value penguins (and other forms of charismatic mega-fauna) quite highly; we are loathe to allow them to go extinct (even if we don't always treat the planet with the care that it would take to avoid that result). But the value they have is not and cannot be independent of the values with which humans invest them.

What does this imply for social-scientific theories of non-human agency? At least, it puts the onus on supporters to show that what appears to be agency really is agency, rather than merely a privileging of one human group's preferences - perhaps as self-anointed guardians of the resources - over the preferences of other human groups. To put the question concretely: Do sacred cows in India possess independent agency? Or are they sacred and deemed to possess independent agency only because of human value systems applied to cows?

The issue of non-human agency has been debated in legal scholarship for quite some time, at least since Christopher Stone's famous 1972 book, Should Trees Have Standing? The term "standing" refers to the right to have grievances redressed in court. Traditionally, to have legal standing sue, one would have to have suffered a cognizable harm that the court is in a position to redress. Recognition that trees, or other resources, had standing to sue would be to recognize that they have rights of their own, which they have independent agency to enforce in judicial proceedings.

At least one problem should be immediately apparent: How could a tree appear in court to represent its own interest? Of course, it could not. We might analogize, however, to other beings, such as infants, that cannot appear in court to protect their own interests but nevertheless have standing. They are protected by the appointment of guardians or trustees, who are charged with a legal obligation to represent their interests. Indeed, Stone argued that the same could and should be done on behalf of trees and other natural objects, which were subject to harm by human pollution, over-extraction, and habitat degradation.*

But note the chief implication of Stone's argument: in order to grant legal agency to resources, we would have to appoint human agents to represent their interests. And we are right back where we started with human agents. It might be argued that Stone's agents, as legal guardians, would have a legal duty to act in the best interest of their arboreal wards. But different humans might well have very different views of that "best interest." And we should expect disputes as to who should be appointed guardian in the first place. Should it be a representative of the Sierra Club, Weyerhaeuser Corp., a local community, an even more local indigenous group, or the Dean of Yale Forestry School? In the end, the determination of the best interests of resource (whether or not as an agent in its own right) boil down to human choices about human representatives.

If different cultures appear to give agency to resources - the land, a tree, a river, or a mountain - appearances may be deceiving. Instead of the resource having agency, the apparent agency may be a manifestation of deeply ingrained attributes of the human community, which affect how human agents treat the resource in their action situations. That, at least, is an alternative hypothesis worth considering in light of the inherent problems of actualizing non-human agency.

*My friend Jan Laitos (Denver) has taken up and extended Stone's argument in a provocative new book, The Right of Nonuse (Oxford 2012). Jan calls for a legally enforceable "right of non-use" to be created for and held by resources themselves. Despite his best efforts, however, I don't think there's any way to avoid the problem of human agency in right-creation and -enforcement processes. Ultimately, some person or persons must be appointed to represent the aggrieved resource. The choice of guardian, and the discretion he or she possesses, may be legally constrained; but if so, that just means the deck has already been stacked, one way or another, in a prior, all-human, collective-choice determination. Whatever rights are allocated to resources inevitably are the outputs of collective-choice action situations comprised exclusively of human actors. Even an argument that nature endows trees with certain inalienable rights is, after all, a human argument about natural rights.

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