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

[Ravi Agarwal]

Dear Kshmendra,

You're welcome. I think it raises important issues, especially when we are
witnessing an increasing tendency of the state to act on the behalf of
corporation to appropriate land in the public good. A good case is the
nandigram issue, where the  company Tata has said that it had no role, but
this was the job of the state to provide land to them.The question is when
Tata (or any other corporation) is the sole beneficiary, can they avoid
responsibility or not be part of the process?

Best
ravi

On Mon, Aug 24, 2009 at 3:30 PM, Kshmendra Kaul <kshmendra2005 at yahoo.com>wrote:

> 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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