[Reader-list] Law and the public good: Shiv Visvanathan..

[Kshmendra Kaul]

Dear Ravi
 
Thank you for sharing this thought provoking piece. Very educative (for me).
 
Kshmendra

--- On Mon, 8/24/09, Ravi Agarwal <ravig64 at gmail.com> wrote:


From: Ravi Agarwal <ravig64 at gmail.com>
Subject: [Reader-list] Law and the public good: Shiv Visvanathan..
To: reader-list at sarai.net
Date: Monday, August 24, 2009, 2:13 PM


http://www.deccanchronicle.com/op-ed/law-and-public-good-773

Law and the public good
August 24th, 2009  By Shiv Visvanathan

Three of the most interesting ministries of the Manmohan Singh government
are environment, health and education. It is not that the rest are not
eventful but that the nature of events taking place here are different. They
may not provide infrastructure in terms of roads and buildings, but what
these sectors seek is to create the infrastructure of the imagination. They
emphasise the need for new concepts, even a new ethics.

Consider the recent debate on the Ambani gas finds. The media raised the
issue whether oil was a public good or a piece of private property. What was
floated as a question is actually a bundle of major controversies.

Let us list them out. Chattrapati Singh the philosopher argued that Indian
customary law distinguishes between stock and flow. Land is stock, it is
immovable. Water is flow. Those who have water on the land can use it but
cannot own it. Water belongs to the community.

The second issue concerns the nature of a public good. Firstly, a public
good is not a public sector good. The latter is only a devious form of
privatisation, where even the state as a public good has been privatised. A
public good is not a commodity because a good is a form of being that
resists commoditisation. A good is more than a thing. It is a matrix of
being where welfare encompasses profit.

A good redefines the nature of any contract by positing the fiction of the
third party. This third figure is the future as a community depending
perpetual representation. A good cannot be defined purely in terms of market
efficiency. It demands a sustainability over time. Renewability, diversity
and justice are hallmarks of a good. A good is polyarchic in that it has to
cater to a variety of problem-solving situations. Oil, water, air are
“public goods” where the juxtaposition of the two words resists both
privatisation and commodisation.

Unfortunately, the idea of the public good operates within a limited
discourse. It lives within the gridlock of public and private. But the above
opposition does not exhaust the world of community. The public operates
within the horizon of the commons. Yet Indian law has turned the word
obsolescent. The destruction of the idea of the common begins with the idea
of the eminent domain in Anglo Saxon law where the state owns the land,
rendering the tribal homeless. All it required to displace a few thousand
people was some diktat centering around “development” or “national purpose”.
The commons came back as a specialised but limited term around the Internet
community. But we need to go back to the original idea of the availability
of resources, the access to them and the presence of skills and knowledge to
utilise them. To make land minimally public, the community has to
participate in decisions about its livelihood and food. Without that,
nationalisation merely becomes another form of appropriation. If land is a
public good, then the communities living on or near it need to have a say in
what it is good for. Without the idea of the commons as a creative
imaginary, the idea of the public good flattens out, becoming a fragment of
a limited Homo juridicus.

The environmental debates centering around nature and land as a public good
have been both subtle and sustained. One of the classic debates revolved
around whether trees should have a standing? But to comprehend this, the
language of nature and the anthropomorphic nature of rights has to change.

Homo juridicus, the legal man like Homo economics, the economic man, is a
fiction that creates a framework of reality. Unfortunately Homo juridicus is
becoming subservient to the logic of the economic man, serving to create
conditions for private property and legal contract. The juridical man is not
yet an ecological man, at home in the notion of complexity and uncertainty.
Its pervasive scientism has little understanding of the precautionary
principles or the idea of uncertainty that pervades regulation in
biotechnology or nanotechnology. But more interestingly, what law does is to
aid the economisation of the world.

Take violence. Once one subjects it to a cost benefit, it obtains its own
forms of legitimation. The economics of dams, which obtains its calculus of
displacement, claims that the displacement of an entire people is a bearable
cost of a dam. When a people or a culture become displaceable as a cost
benefit justified by law, Homo juridicus shrinks into a hand maiden of
economics.

Death, particularly mass death, merely becomes a form of obsolescence
regarded as necessary and inevitable in the inevitable idea of development.
One can then read a riot or a disaster as a real estate operation, freeing
land from old and cumbersome collectivities for innovation and
entrepreneurship.

In fact, it is this particular notion of economisation that creates a
contradiction between first and third generation rights. In a generational
sense, the 1947 Universal Declaration was a first generation right, the
socialist framework, a second generation “right”, and the laws of innovation
and intellectual property a third generation right. Third generation rights
are property rights that seek to redefine life as property by creating the
idea of intellectual capital. When you patent “life”, you alter its very
axiomatics. In that sense, life is secondary to property, creating an
obscene contradiction at the centre of the rights discourse.

Zygmunt Bauman, the sociologist, in a classic book on waste points out that
the economisation of rights went through two phases. The earlier idea of
full employment, he shows, at least humanised man as a resource. Right to
work was part of the dignity of man, even if the work itself was
exploitative. Today men are seen as global waste. The displaced, the
unemployed, the refugee, the marginal, the obsolescent are not even
recyclable, only disposable. In economising law, we have destroyed the power
and claim of human rights. Genocide then becomes an extension of cost
benefit analysis, mass death an extension counter of development.
All one is arguing for is a return to the fundamentals of law. The Homo
juridicus we have created is a narrow pre-ecolate creature.

We need to examine our law and Western law as a set of fundamentalisms about
science, the individual, contract and property. Otherwise the rule of law
might be just a law of rules rather than the fluid that creates and seeds a
more supple democratic imagination.

* Shiv Visvanathan is a social scientist
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