Opening plenary session
Friday, 8.1.2009 (16.00 - 19.00, SSS1 auditorium)
Chaired by Niraja Gopal Jayal
Panelists
Law and Violence: Counter-narratives from an Anthropological Imagination
Veena Das [bio]
One of the classic sites in political philosophy for examining the relation between law and violence is that of social contract. In this paper I develop a counter-narrative from some foundational anthropological texts that appeal to a different kind of invented natural history in defining the problem of the social. How are we to think of familiar questions such as what it is to obey a rule when law is rendered as imminent rather than transcendent and what relation might this bear to the idea of a life form - or the forms life takes? Is there an ideal position from which such questions might be asked? And what does disappointment with law as the guarantee of order have to offer us for thinking of the larger question of aspirations for a moral life?
[top]
About the Speaker
Veena Das is Krieger-Eisenhower Professor of Anthropology and Professor of Humanities at the Johns Hopkins University. Her most recent book is Life and Words: Violence and the Descent into the Ordinary (California University Press, 2006). She has worked on themes of violence, social suffering, health and disease, and anthropology of the everyday. Currently she is engaged in a longitudinal study of urban neighbourhoods in Delhi. Das is a Fellow of the American Academy of Arts and Sciences and the Academy of Sciences for Developing Societies. She has received several honours including the Andrez Retzius Prize of the Swedish Society of Anthropology and Geography and an honorary doctorate in Humane Letters from the University of Chicago.
[top]
The Laws of Empire
Peter Fitzpatrick [bio]
A generative ambivalence to begin: 'law' can refer to the prescriptive rules recognized as binding within a community (law 1), and it can refer to a descriptive force constituent of the community (law 2). Although some overlap, even fusion, of the two was once found in natural law, modern occidental theorizing (whether positivist, sociological or critical) characteristically subordinates law 1 to law 2.
That theorizing cannot accommodate the laws of empire – at least of empire in its modern and current forms, including the 'global' variety. As Arendt would emphasize, the formations of modern imperialism do not provide the comprehensive domination necessary for law 2. The resulting hiatus in modern imperial formation is manifested in demotic resistances of law 1 to law 2 in its imperial constitution.
This paper refracts that resistant law back towards the modern theorizing of law with which we started and finds such resistant law to be integral to law 1. Not only that, the refraction reveals the 'original' distinction between law 1 and law 2 to be untenable. So, the 'particular' case of modern imperialism – including, most pointedly, the resistances to it – reveals an intriguing incompletion within the supposedly general modern theorizing of law 'in the first place'. And, as that ever-obliging resort of stymied scholarship, the Oxford English Dictionary, would remind us: "in many langs. the word "law" is derived from roots meaning "to place".
[top]
About the Speaker
Peter Fitzpatrick is currently Anniversary Professor of Law at Birkbeck, University of London and Honorary Professor of Law in the University of Kent. In 2007 he was awarded the James Boyd White Prize by The Association for the Study of Law, Culture and the Humanities. He has taught at universities in Europe, North America and Papua New Guinea and published many books on legal philosophy, law and social theory, law and racism, and imperialism, the latest one being Law as Resistance: Modernism, Imperialism, Legalism (Ashgate, 2008). Outside the academy he has been in an international legal practice and was also in the Prime Minister’s Office in Papua New Guinea for several years.
[top]
On the Nature and Limits of Judicial Authority
Pratap Bhanu Mehta [bio]
As the role of judiciaries in societies expands they are put under pressure from two different directions. The first is: what is the relationship between legality and violence. The second is: given that appeals to the idea of the rule of law are not self evident, on what basis is judicial authority founded? This talk examines both these questions and the relationship between them.
[top]
About the Speaker
Pratap Bhanu Mehta is the President and Chief Executive, Centre for Policy Research, New Delhi. He was previously Visiting Professor of Government at Harvard University and Associate Professor of Government and of Social Studies at Harvard. He was also Professor of Philosophy and Law and Governance, JNU. He has published widely in reputed national and international journals in a variety of fields including, political philosophy, intellectual history, constitutional law, international politics, society and politics in India. His most recent books are The Burdens of Democracy and Public Institutions in India: Performance and Design. Mehta’s current research projects centre around four themes. The first is understanding India’s Great Transformation, the profound social, political and economic changes of the last two decades, and the trajectory they are likely to take in the future. This will result in a book. The second project looks at the role of law in Indian society. It will specifically focus on the justiciability of social and economic rights, and whether judicial intervention is a good means of achieving those objectives. This project will result in a series of papers. The third project - a collaborative project-related to the first two is on Globalization and the Indian State, that looks at the legitimacy challenges facing the Indian State in an era of globalization. The fourth project continues Mehta’s long standing interest in philosophical ethics and explores what it means to lead an examined life. In addition Mehta will continue to perform the role of loyal opposition and engage the public and government through columns on topical issues.
[top]
Peregrinations: the Catastrophic Lives of the 'Modern' Law
Upendra Baxi [bio]
This presentation deals not so much with the important relationship of'modern' law and catastrophe but rather addresses the'modern' law itself as a catastrophic form. Many experiences have contributed to this lived realization. Studying at the University of California at Berkeley and as a participant in the early phase of protest against the Vietnam War, commencing law teaching career at Sydney with an effort to break the conspiracy of silence over the rightlessness of the Gove Island Aborigines (and having the privilege to initiate what became a landmark Millirrupum Case), and then at several Indian sites (the Mathura Open Letter, strategizing social action litigation before the Indian Supreme Court, the difficult struggles for those violated by organized political catastrophes misnamed as 'communal riots' and mass disasters caused by the MNCs especially at Bhopal, and some ongoing current concerns engaging the two 'terror' wars - the wars of and on 'terror') have led me to invent and emplot some rather ad hoc and perishable, in the eye of a hyperglobalizing future history, some strategies of resistance. In each instance of struggle, I have distressingly learnt a great deal about the ways in which the many lived lives of the catastrophic languages of the 'modern' law actually proceeds to devour the aspirational values otherwise animating constitution, human rights, and international law discourses. Understanding the ways in which this occurs remains crucial for the uncertain promise of social theory and movement.
This understanding has developed at each phase of struggle. Reading the founders and forerunners of classical liberal social theory provided me, for a long while, some precious resources for the pursuit of a new politics of hope, even when accompanied by the awareness that overall theoretical and empirical enquires in the domain of law and social change remained rather inconversant with the lived and embodied experience of human devastation, suffering, and rightlessness. In contrast, reading Marx (especially his insights into law as terror and terror of law—‘force with phrases’ and ‘force without phrases’—or the perennial compossbility of the ‘rule of law’ with the ‘reign of terror’) also shaped my grasping of the experience of the catastrophic orderings that constitute the very auspices of modern law.
In suggesting to the LASS Presidium that this plenary session be titled ‘peregrinations,’ I had in view a full recall of the phrase-regime of Jean François Lyotard, Peregrinations: Law, Form, Event (New York: Columbia University Press, 1988.) The agonizingly pertinent questions that Lyotard thus raises still command our discursive attention: ‘How may we achieve political language that understands ethics as born of natural suffering and the birth of the specificity of the political ... [as] the supplement that that history adds to this suffering?’ How further may our preferred ways of ‘birthing’ the ‘specificity’ of the ‘political’ avoid our ‘presumption of intelligence’ that entirely enacts ‘the tragic stupidity of that which has no words to make it understood, nor any law to justify itself? ‘In what ways, if any, may we grasp the deep descent into the ‘substrata of necessity, to seek out there the most the meaning of the most irrational of historic effects that resists the [construction of] the incomprehensible and complete tableau of reality ...[that listens] ... to the obscure passions, the arrogance of leaders, the sadness of workers, the humiliation of peasants, and of the colonized the anger and the bewilderment of revolt; the bewilderment, too, of thought [that invites] again the thread of class in the imbroglio of events?’ This presentation remains at best, and worst, a tentative addressal of some outer narrative edges of the ‘bewilderment of thought’ amidst the ruins of memory that may still dare speak to the emancipatory potential of ‘modern’ law.
Manifestly, the ‘sovereign’ question concerns ways in which we may transform the fellowships of knowledges into those of suffering. As ‘Uncle’ Marx memorably put this long while ago: ‘The existence of a suffering humanity which thinks and of thinking humanity which is oppressed will necessarily be unpalatable for the passive animal and the world of Philistines... The longer circumstances give thinking humanity time to reflect and suffering humanity time to rally, the more finished when born will be the product that the world carries in its womb.’
[top]
About the Speaker
Upendra Baxi (currently, teaching at the University of Warwick, UK) was educated at Rajkot, University of Bombay and University of California at Berkeley Law School (Boalt Hall), where he received LL.M. and J.S.D., Baxi began his teaching career at the Sydney University Law School, and remained the youngest law professor in India when invited to the law faculty of Delhi University in 1971. Overrun by the Vice Chancellorships of the University of South Gujarat and the University of Delhi, Baxi has continued writing and teaching and has authored more than 20 books and over 200 articles; he has also offered instruction in comparative constitutionalism, social theory of human rights, and law, science, and technology at the Washington College of Law, Duke University Law School, and the University of New York Law School Global Law Program. His most recent publications include: The Future of Human Rights (3rd edition, 2008) and Human Rights in a Posthuman World: Critical Essays (Delhi, and Oxford, Oxford University Press.) He has delivered the Hague Academy of International Law Lectures (2002) on ‘Mass Disasters, Multinational Enterprise Liability and Private International Law and is scheduled to deliver (2009) the Tagore Law Lectures at the University of Calcutta on the ‘Approaches to Global Justice.’
[top]