Peoples' law: decolonising legal imagination.

• Author: Nayar, Jayan
• Position: Essay

Abstract

The simple and radical truth is that there is nothing inevitable or natural, let alone good, about the present 'order(ing)' of human societies within the scheme of the totality of global political-legal cultural imagination; there is nothing good in the militaristic, corporate control over the political-legal space that represents the landscape of governance today is an indictment that few would contest; that few being the public voices of domination that remain our (enforced) 'leaders'; there is nothing natural about this imposed order is something most of us would believe, much to the chagrin of the imperial voices which repeat time and again the evolutionary logic of their violence. With this in mind, this work critically evaluates contemporary dominant World Order(ings), exploring the colonising and violent claims of Power and its attendant Law, seeking to decolonise the latter through a Peoples' Law created by peoples' action that reclaims lost, hidden or repressed histories and emancipatory futures and reignites political action with the radical re-appropriation by peoples groups to initiate what might be termed 'grassroots democratic action' of and for law.

Keywords:

Peoples' Law; Power; Legitimacy; Hegemony; Globalisation;

1. Introduction

   We live in different worlds. One, a world of legal texts in which the academic, the reformer, the politician, gather to promise equality, justice, prosperity, security, for all. Another, the world of realities in which the minority groupings of power gather together to implement their visions of the world which inflicts violence, humiliation and death upon the majority weak. As commentators and activists, we can choose how we engage within these opposing worlds. We can dream the dream of enlightenment and hope that by our reasoned interventions which demonstrate the error of the ways of the present, we may transform real worlds into the promised lands of legal texts. (1) Or we can begin with the realisation that the world is a place of conflict and that we have the responsibility to take sides. (2) I adopt the path of the latter.

   We cannot, must not, speak about the world with anything but unrestrained outrage. Outrage at the inhumanity of the 'world order' that has been created; outrage at the lie of Law which maintains the purported idealism of the violent orders that govern us. When constitutions are made, when parliaments are convened, when international leaders gather to address the latest issue of concern and priority, when children have their heads blown open by the bombs of their 'liberators', the promised land of Law is invoked, like a mantra, repeated in this civilisational space that we call 'our world'. The utterances of George W. Bush are frightening examples of this cynical recourse to ideas of 'civilisation' and of Law:

   'There is a value system that cannot be compromised, and that is the values we praise. And if the values are good enough for our people, they ought to be good enough for others, not in a way to impose because these are God-given values. These aren't United States-created values. These are the values of freedom and the human condition and mothers loving their children.' (3)

   But the world of Law is a lie. The injection of Law into the language of Power serves, like a drug, to induce hypnosis, compliance, apathy. Law's promise is necessary to retain the myth of humanity, so essential to us as everything around us is dehumanised. The promises of Law, therefore, create the perpetual haze under which the real world goes about its business, and its business is business--this is a cruel world where visions of 'civilisation' are effected through the deliberate or callous infliction of violence.

   But, the simple and radical truth is that there is nothing inevitable or natural, let alone good, about the present 'order(ing)' of human societies within the scheme of the totality of global political-legal cultural imagination. That there is nothing good in the militaristic, corporate control over the political-legal space that represents the landscape of governance today is an indictment that few would contest; that few being the public voices of domination that remain our (enforced) 'leaders'. That there is nothing natural about this imposed order is something most of us would believe, much to the chagrin of the imperial voices which repeat time and again the evolutionary logic of their violence. That there is nothing inevitable about this colonising trajectory must be the line we draw upon the ground of (our)story, to be crossed as the act of decolonisation, as the moment of decolonisation. (4)

   The purpose of this paper is to instigate for such a moment of decolonisation. Its target is the colonising functions of ideas, in this case, the idea of Law. This is more than protesting law's workings, more than denouncing law's injustices. Rather, this paper suggests a break, a liberatory moment of decolonisation that rejects the idea--good, naturalness and inevitability--of Law as thus presented by Power. In its stead, is an assertion of a vibrant, different, emergent law, rooted in the social realities of the majority of the 'family of humankind', mired in the conflicts of political drama that are the lifeblood of living communities, of real (as opposed to idealised) people. A law that stands in conflict with Power, no reconciliations through projected fictions of universal 'We's' in sight; A law whose reality may not be tamed by 'disciplines' of discourse.

   A word of caution with respect to the conventions of 'legitimate' (theoretical) exposition. For all the theorisations of political-legal wonderlands that has been the legacy, the gift, of modernity, coupled with colonial violence, the world will take a shape that we the commentators may not anticipate as a result of haphazard, unpredictable, emotional struggle, regardless of theorists, theories, analyses, proposals for reform and the like. What follows in this paper is a claim to legitimacy for a such a (r)evolution that will come with the overturning of conventional ideas of legitimate politics and law. This is already happening although its contours aren't as yet clear, and I don't think they ever will be. And this is what makes it truthful, exciting, hopeful and dismissive of 'expert' control. In this paper, I want to say something about this revolution. Not just about the one that is visibly happening in the streets--this we are familiar with. (5) But I want specifically to talk about a potential, and necessary, revolution of ideas; of the most fundamental ideas of control by the powerful over the weak--the ideas of politics and law. I want to talk here about the revolution of Peoples' Law.

2. Trends of World Order(ing): Seeing Through the Noise

   So much is written about Law.

   Before proceeding, the following words of Amilcar Cabral helps set the scene, to remind us to check against our own 'civil-ised' prejudices:

   '[The colonizer] provokes and develops the cultural alienation of a part of the population, either by so-called assimilation, or by creating a social gap between the indigenous elites and the popular masses. As a result of this process ... it happens that a considerable part of the population, notably the urban or peasant bourgeoisie, assimilates the colonizer's mentality, considers itself culturally superior to its own people and ignores or looks down upon their cultural values' (6)

   This statement provides us with an important reminder of our own still-colonised condition. The 'culture' of law and politics which the coloniser imbued the elites of the colonies as true gifts of a higher civilization have indeed resulted in alienation within the 'postcolonial' polity. It may be accurately stated that the postcolonial, decolonised possibility was stillborn with the moment of political 'independence'. Assimilating the coloniser's mentality has meant the assimilation into a global political-legal (and economic) imagination that changes little the realities of violence for the majority of the purportedly post-colonial populations.

   These are strong assertions; perhaps they are made too hastily. Conceding this, let us maintain for the sake of argument that the political-legal (cultural) values that underpin the international system of independent and sovereign states, acting in cooperation with one another for mutual benefit and universal human welfare, held true one time long ago. (7) Can we still pretend that they hold true still? On what foundations does the assertion of the prevailing political-legal order stand majestically over the subjective realities of ordinary people? On the Hobbesian assertion of brutality that founds human sociality? On the Lockean vision of 'civil-ity' through the godly appropriation (fencing-in) of property? Leaping over a couple of centuries worth of Western ideological postulations, on the Bushian arrogance of cultural, religious, civilisational (corporate-military) superiority of values (and weapons)? What does provide for the 'majesty' of Law? Of 'Democracy'?

   The ideology of 'Law' and of the political systems that are purportedly engendered by 'Law' would claim the said majesty for this very modern of human organizational forms; (8) in its extreme, the triumphalism of 'Fukuyaman' end of history claims may be seen to serve the purpose of closing the futures of imagination. Looking through the 'noise' of roughly 400 years worth of (Western) ideological rhetoric means, however, seeing first the realities of human ordering that are the result of the claimed utopias of theory, and then judging their 'truth'. We can take a contemporary assertion that sums up the promise of Law's universe, and put our question as follows: what is the nature of the 'world' in terms of human realities of suffering, notwithstanding the noble rhetoric of the United Nations website which opens with the proclamation, 'This is Your World'?

   The world of today bears little...