by Upendra Baxi
First, a word concerning the title of my presentation. It is not out of any voguish reason that I use the term mimesis, rather than imitation. Certainly, it was Gabriel Tarde (1895) who first reminded us that the "tendency towards imitation is a main drive behind both creation and the development of social institutions, legal and other" (Stone, 1966: 481). But it is Rene Girad's corpus which educates us into the more complex notion of mimesis and relationship between mimesis on the one hand and violence, victimage and truth of the sacred on the other (1978, 1986). He has made it possible for us to think that social theory and thought, too, may become objects of mimetic desire, of acquisitive mimesis (where "two mimetic rivals attempt to wrest from one another an object because they designate it desirable to one another") and even about the phenomenon of mimetic "contagion."
Contemporary social theorizing concerning 'reflexive' globalization provides an exciting spectacle of acquisitive mimesis at work. It also enacts its own distinctive order of victimage by means of emistemic violence, exposing to doubt the anti foundationalist discourse celebrating Stanley Fish's maxim: Theory has no consequences (1989).
'Reflexive' globalization provides an exciting ongoing conversation "brilliant stuff" as Lash himself would describe it (1994:203) among social and cultural theorists of the North, often modestly placed at the service of the creation of a global sociology (Robertson, 1992) or "undoing culture" (that is 'globalizing cultural complexity': Featherstone, 1995), reflective globalization theorizing is, in reality, addressed to the task of construction of future histories of humankind. The point of departure for theoretical sketches is not provided by the mad integrity of a Nietesche who after all constructed nihilism as a way of writing the future history of Europe. 'Reflexive' globalization thinkers address the future of the world as a whole, with varying degrees of "pessoptimism." And the path followed is that of philosophical anthropology, sedimented by [-but going beyond] discursive traditions of 'modernity' and 'post-modernism." The debris of thought traditions of the North provides the raw materials for doing this kind of philosophical anthropology. Its other distinctive, indeed constitutive, feature is the deployment of enormously suggestive (seductive) power of anecdotal narrativism, unburdened by any rigors of method in assembling global social facts.
To take just one example, we hear Arguably, the workings of power, politics and ideologies in these new transnational flows of capital, people, commodities, information and culture are generating a cyberspace/telesphere that is coextensive with, but different from, first nature in biosphere and second, nature in the industrial technosphere. This new 'third nature' of cyberspatial/televisual information glocality fuses the local and the global in new everyday life-worlds. And it is the hyperreal estate of these glocal territories which anchors many social struggles, political organizations, economic conceptions and cultural creolizations in most regions of the existing capitalist world system (Luke, 1995: 91 emphasis added).
The tentativeness of this prologue (marked by italicized words) is soon dissolved in the heavy text which follows. It is not necessary in talking about 'cyberspatiality' to acknowledge the fact that only about 15 million people have access to Internet (that is, little over the population of the capital city of India!) or Canada has more telephone connections (approximate 27 million) than many a developing country put together or further that the televisual information glocality is available to those who have access to electricity (aside from other resources), a fortune yet to visit millions of impoverished people in the Third world whose governments proclaim, over and over again, five year rural electrification plans ! Much more could be said in this vein but I will desist.
Of course, such 'facts' can be quickly countered by other 'facts' - Rambo's "larger-than-life-heroes" being applauded by "remote villagers in rural Burma" only "days after they hit the screens of Wisconsin" (Iyer, 1989: 12, quoted in Featherstone, 1995: 116) or Paul Theroux's The Happy Islands of Oceania where people narrate to him the latest developments in Gulf War they'd heard on the Radio or and people in the tiny island of Savo (Solomon islands group) where a single generator video made Rambo a folk-hero. For Featherstone all this talk produces at least a reflexive anxiety "such accounts are by now legion yet how are we to read them?" (p.116) and suggests that "we should not be too hasty in dispensing with theories of social relations [of power domination-] altogether" (p.125). But haste for prognosis lies at the heart of reflexive globalization theories.
Reflexive globaliztion theorists' penchant for disregarding or transcending social facts makes its discourse essentially poetic, at time lyrical, in its imagery. The prophetic mode of contemporary theory - construction is more assured of future facts about glocalizing neo-world order in which agency will became even more autonomous of the structures and reflexivity will prefigure as well as transfigure things now hidden from view. Hidden only, I should add, partially from view because mimetic rivalry over conceptions should as 'reflexivity', 'risk', 'trust', 'culture', 'glocality', 'flows', 'hyperralitization', 'liminality' already indicate, via trajectories of imaginative social theory, the shape of things to come. Thus, for example, we now hear of 'reflexive subjects', 'reflexive accumulation', 'reflexive' consumption where "global economies of sign and space" become the only 'reality' there is, or that is worth talking about (Lash & Urry, 1994). Perhaps, we should adapt Girad's notion of acquisitive mimesis to 'reflexive' mimesis.
But let me as a mere lawperson (significantly, law and human rights have very little resonance in theoretical sketches and skirmishes of reflexive globalization narratives) not rush in, in this vein, where angels used to fear to tread ! Instead, let me look at result, consequences, implications of some of these narratives recalling Kerl Lewellyn's memorable counsel to first-semester law students at Chicago; his doyen of American legal realism used to ask the class not to look at what judges say but rather to look at what they do with what they say ! Perhaps, this hermeneutical jurisprudential maxim may be usefully extended to theories of, and about, reflexive globalization.
At the heart of conviction about 'open -ended' 'fluid' 'up-for-grab' notions of globalization (Robertson, 1992) the germ of social Darwinism gnaws, it does not display itself as outrageously as in Jacques Attali (1990) who elaborates the 'thesis' that the North is the millienial winner, the South the millenial loser. Attali boldly declares that Latin American countries represent a situation of 'terminal poverty'. Africa is a 'lost continent' and baring a few, Asian nations are millenial losers. We find much more refined versions of this kind of approach in contemporary globalization narratives, prominently for example, in Scott Lash and John Urry's recent proclamation of 'reflexivity winners' and 'reflexivity losers' (1994), the latter being the denizens of 'dead zones' or 'wild zones' of underclasses living in ghettos, a marker of exclusion from "information and communication structures' (Lash, 1995: 132). Lash and Urry are refreshing in their candor in asking: "what can reflexive production and consumption mean to a single mother in a Chicago ghetto?" (p.143). Nothing, as far my close reading can tell, excepting that the reflexivity losers are situated (interpellated) in the "wider zones of disorganized capitalist landscape," that is in their "exclusion from civil society itself." The zones are 'wild' or 'dead' as "spaces characterized by a deficit of economic, cultural and social regulation" (p.8). Students of histories of pauperism will know (as from the beginning of Elizabethan poor law system) that 'wild' or 'dead' zones can also be created by regulation-surplus as well! That apart, after this gesture of acknowledgment of 'underclass', at the heart of modern economies of signs and space, the caravan moves on to its proper exotic destinations. The trace of empathy proves barren, after all.
Another large example of Social Darwinism implicit, of almost innate epistemic violence of reflexive globalization theories, comes from no less thinker than Anthony Giddens who is sensitive to fashioning 'dialogic democracy' as the only alternative to violence (1994: 105-107), sensitive, too, to acknowledge that "liberal democracy is not the end of history in the political sphere" nor is "capitalist production in the domain of economic relations" (p.104). Yet, at the end of it all, Giddens is able to speak of the "possibility of the emergence of a post - scarcity order" in which "the drive to continuous accumulation has become weakened or dissolved" partly as a result of the "well-known contradictions of abundance" (p.195). Conscious of the difficulties that the problematique of mass impoverishment in the Third World immediately posses Gidden's grandly concludes that the post-scarcity order "is far from something that only has relevance to the economically advances sectors of the globe" in the sense that the "affluent have a great deal to learn from the poor: and the West from other cultures which in the past it has simply threatened with extinction" (p.196 emphasis added).
It is, of course, not Giddens' fault that I read his brilliant analysis of 'detraditionalization' 'reflexivity' and 'trust' around the same time I chanced to read War & Hunger (1994), a hauntingly contemporary account of planned acts of creation of "conflict-famines" where food (access to food as a basic need and to resource for agricultural productivity) is used as a weapons-system in insurgency and counter-insurgency operations, in wars throughout Africa (and, one may add, the rest of the Third World, including the New Third World emerging as a result of downfall of the Soviet Union). Even when conditions of belligerency abate, the presence of active land mines (estimated to be in the order of 18 to 30 million in most war-zones of Africa) continues to aggravate recovery and rehabilitation.
Among other things, reading of this account made me feel strongly about the violence of past tense in Gidden's italicized sentence quoted above (re: other cultures which the West has "in the past threatened with extinction.") Directly by aggressive intervention, or indirectly by complicity with rebels or incumbents, and/or by formal and informal profiteering by armament supplies as well by acts of diplomatic management, and at times out right usurpation, of legitimate roles, functions and missions of the United Nations system, destruction proceeds in infinitely complex ways. Indeed, the production of "complex emergencies" in the South, a conscious 'reflexive' foreign policy project in the era of cold war continues even now as a central concern in the varieties of versions of pax Americana. Given the dynamics of the 'new military world order'(which Giddens himself introduced in the discourse on contemporary globalization : 1990), it should at least be clear that the emergence of past-scarcity order in the North is causally correlated to manufacturing of conflict-famines in the South.
In addition, the prophetic notion that past-scarcity order, though Northern in origin but marking an incipient global order, proceeds on a theory of international social learning ("the affluent have a great deal to learn from the poor") stands problematized by the manufacturing of "complex situations", including the militarization of ethnicities embedded in the new international military order. The logic of this order as concerns the South consists in production of an order of super-scarcity. The 'learning' does occur but not in the direction of the production of any post-scarcity world order.
The situation is the same when we turn to the dimension of the international economic order. One has to just turn to the 'rationality' of the accomplishments of the WTO 1994 regime or of the US omnibus super - 301 legislation providing an arsenal of first strike weapons of trade retaliation for the protection and promotion of the very sectors of production of "informational goods" imbricated with "reflexive" production. The "reflexive" agency of people in struggle against new economic regimes of "free trade" was successfully overridden by the hegemony - or rather dominance without hegemony - of the 'globalizing' regimes of the North. Most of 'reflexive' globalization conversation naturalized global economic, trade, capital, commodities and peoples' flows instead of problematizing these. It is this formation of mentalite which remains, as it were, a necessary, perhaps even sufficient, condition for the intellectual production of reflexive globalization, the prophecy concerning the emergence of a world "post-scarcity order" being among its notorious examples.
It is also mightily curious that for theorists of 'reflexive gloabalization' the world of international diplomacy and the products it so regularly sprouts, is largely non-existent or irrelevant. In the older ways of doing social theory the global 'facts' would have been accorded the status, at least, of Durkhemian social facts. The prophetic discursivity of reflexive globalization passes by the entire happening of the U.N. Social Summit on Development (Copenhagen, 1995) whose Declaration and Plan of Action proceed on the candid acknowledgment of the relentless global social facts of mass impoverishment, destitution and deprivation rampant, especially out not only there in the Third World - a world, incidentally, for which according to Giddens that naming is no longer "appropriate", together with the "idea of 'development studies'" which has lost its "cogency" (1994:188.) Similarly, reflexive globalization theorists pass by the labours of society of states and international civil society exemplifies by the U.N. Conference on Population and Development (Cairo, 1993) and the U.N. Fourth World Conference on Women (Beijing, 1995). It requires no great imagination to see espy similar fate awaiting the human labours of the World Summit on Habitat due to take place in Istanbul (June, 1996). One's ambivalence concerning the behaviors of states within contexts of high-minded international diplomacy or of vibrancy and urgency with which groups of 'reflexive' NGOs participate, with a matching degree of Utopian realism - one's assessment of the intent and impact of such praxiological formations can only be meaningfully articulated when such global social facts are in the first place acknowledged by 'reflexive' theorizing on globalization. But for the prophetic 'reflexivity' discourse, cast in the mode of philosophical anthropology, such facts count for little or nothing, despite the celebration of such themes as the 'decentering' of the nation-state.
The constitution of "we-ness" in reflexive globalization theorizing remains ineluctably parochial and Eurocentric and therefore social-Darwinistic. It would take me for afield to archive all the illustrations. But a couple of examples should suffice. Writing in 1995 on the heroic and everyday life. Mike Featherstone (1995, 59-71) does not even mention once Mohandas Karamchand Gandhi, Nelson Mandela, Martin Luther King Jr. or Aung San Suu Kyi. The discourse is 'peoples' with Weber, Baudrillard, Horkheimer and Andorno, Nietesczhe, Simmel, Bauman and Heller. The 'we-ness' of reflective globalization narratives centres upon construction of social reality of Northern sociological thinkers and thought. And everyday heroism, too, does not appear in narratives of workers in struggle, women fighting patriarchy in lived lives, Pakistani child leader brutally assassinated for articulating struggle against bonded labour, indigenous peoples' struggling to conserve biodiversity but out of the cult of "mythic hero images of Superman and Rambo types as well pastisches and parodies of the whole heroic tradition such as the film, Monthy Python and the Holy Grail (1975) and various blends of both such as are found in Indiana Jones films." (p.67) Overconcentration of the 'mediascapes' or celleuioid realities cancels in theories of cultural globalization the embodied traditions of resistance, struggle and heroism in everyday life of the South. Here, alienated reflexivity functions to form visions of globalization which obliterate by refusing even to name the only heroes who would were in the past, and remain new and for the future, the arch - practitioners of emanicipative deglobalization.
Similarly, in articulating a gigantomachy between 'tribalism' and 'globalism' via the prism of McDonaldization of the world (named Mcworld, adding to the property of goodwill in the registered trade mark!) B.R. Berber in an article entitled 'Jihad v. Mcworld' (1992) - certified by no less than Ronald Robertson from whom I quote (1995: 25) as a "widely disseminated" statement - posits tensions between a "Mcworld of homogenizing globalization versus a Jihad World of particularizing 'leabonization.'" These are metaphors run wild for the destitute, starving, millions of human beings for whom the McWorld does not exist or for the 'reflexive' Leabenese subjects, mercilessly exposed to a series of violent disembeddings and reembeddings in a 'structure' from which they have supposedly won enclaves of 'autonomy'. While contesting some of Berber's thesis, Robertson lends his - both cognitive and aesthetic-authority to Berber's violent musing on how the creation of Mcworld signifies the realization of "the Enlightenment dream of universal rational society" in a remarkable degree. Perhaps, (though it does not really matter any more!) a more weighty labour of thought would have been provided by the lamented Walter Rodney's poignant text How Europe Underdeveloped Africa (1983). But, aside from the Dead White Males, the conversation on reflexive globalization is uniquely self-referential denying even a modest acknowledgment to thought and voice from the South, unless of course they are 'nomads', 'structured' hybrids or diasporic intellectuals. The discursive "we-ness" of contemporary globalization narratives barely conceals the exclusion of "reflexivity losers." The difference, this time round, being that among those excluded are labourers of thought within the growing "underclass" in a globalizing world, including practitioners of political thought from Nehru to Nyrere. Ghettoization of thought, in a world supposedly bursting with information access, is remarkably symptomatic of glocalizing theories about "reflexive globalization!"
The foregoing commendation on the current genre of globalization theorizing would have accomplished its task well if it were to persuade some eminent Northern thinkers to be more inclusive of the rest of the world in their labours of thought. Let me now move to my second thematic: politics of rights in the context of India, returning at the end of my presentation to Ulrich Beck's fecund notion of the reinvention of politics.
In focusing on law, constitution and rights I derive some comfort from Georges Guruvitch (1942) who said, memorably, that too little sociology leads us away from law and much sociology returns us to it. The founders and forerunners of modern social theory richly illustrate the truth of this dictum. The relation between societal complexity and legal evolution (Durkheim), the emphasis on constitutions and laws as necessities of class struggles (Marx) and the dialectic relationship between economic development and legal rationality (Weber) furnished salient dimensions of understanding societies. This tradition of taking law seriously persisted well till Parsons (who at one point described law, with language, as an "evolutionary universal". The lack of serious social/cultural theory interest in law in the narratives of reflexive globalization is understandable as an aspect of epistemological break with the older traditions of social reflexivity.
As and when, reflexive globalization theorists turn to law and rights, they are more likely than not to have recourse to the contemporary outpourings of critical legal studies, deconstructive jurisprudence, critical race theory, postmodernist perspectives on law and state. For these discourses, too, while providing sites for sustained iterrogations of traditions of western/capitalist legality remain, on the whole, in a state of well-bred amnesia of crises and contradictions in the construction of rights, legality and justice in the South.
Undoubtedly, the Indian formation of juristic thought provides us with many an inaugurator of new discursivity on law, rights and justice; M.K.Gandhi, Babasahed, Ambedkar and Jai Prakash Narayan among them. In particular, well ahead of John Rawls, and contemporary debate between 'liberalism' and 'communitarianism', Ambedkar persciently developed a critique of liberal legality (Baxi, 1995). But this is a theme by itself. Gandhi's discursive and political praxis creating collisions between the truth of people's law formations and imperial state law informations, his creative siting of duty of civil disobedience within the values of British legality and his unceasing search for commingling ethic of human rights with human responsibilities provides splendid examples of reflexivity so far not available in narratives of reflexive globalization. But it would take me for afield to explore these patterns of inaugural discursivity. It is indubitable that the Gandhi - Ambedkar conflicted legacies of thought and action made possible distinct points of departure in the construction of post-colonial legality just as Jai Prakash Narain notions of Total Revolution based substantially on a critique of the constitutional model, summoning people including the police, para-military and armed forces of India to disobey manifestly unjust laws and orders and calling for people's participation in administration of justice laid firm basis (after the brief but cruel authoritarian interlude of the Emergency of 1975-1977) for a new Indian jurisprudence, especially through the agency of judicial activism. The full narrative of the histories of those formations is beyond the scope of this paper. But the importance of Indian constitutional thought and development cannot be overstated, even in terms of invention of politics.
Just as the South African interim constitution marks a watershed in the history of constitutionalism on the eve of the Third Millennium, the Indian Constitution marked the first major break with the world (Western) constitutionalism. And it served as a model for most South Asian and Third World constitutions. The discontinuities with the inherited tradition of constitutionalism are perhaps more critical (these certainly have been so in the last two decades of the Constitution at work) than continuities. The Indian Constitution's remarkable persona manifests itself in massive normative assault against dominant institutions of civil society. In a society marked by millennial conception of hierarchical equality, the Constitution proclaims all citizens as free and equal. For a society almost irredeemably patriarchal in character, the Constitution asserts values and rights of gender equality casting (since 1976) an obligation by way of citizenship on all to renounce practices derogatory of women. In contrast to the Hindu society's valorization of 'purity' and 'pollution', Article 17 of the Constitution prohibits, as a matter of fundamental right, the notion and practice of "untouchability". Through Article 23, a fundamental right against exploitation, the Constitution outlaws bonded labour, beggar, and other forms of servitude in a society slow to emerge from semifeudal relations of agrarian production. Proclaiming a charter of rights to conscience and religion, the constitution mandates reform of Hindu religion. In these, and many related vital respects, the constitution declares a war on social practices and beliefs deeply rooted in Indian society and culture.
The symbolic significance of all these normative aspirations is immense, even when sonorous words written on parchment do not by themselves transform material social relations. But, as development since its adoption have shown these texts of justice and rights has helped to energize state action, to defeudalize public discourse on power, to sustain momentous scope for rigorous redirection of the Indian future. The constitution provides basis as much for legitimation of power as for its delegitimation.
To this inaugural dimension of Indian constitutionalism must be added the departures its theory of rights marks in terms of the classical liberal theory of human rights. This occurs in a least five distinct ways. First, the Indian constitution is practically unique in the annals of world constitutionalism in recognizing basic human needs as human rights, whose progressive realization is a constitutional obligation of the state. Formulated as Directive Principles of State Policy, unenforceable in principle by courts (but now being gradually enforced by activist jurisprudence), the Constitution of India anticipates by two decades the bifurcation of international human rights conventions into the International Covenant on Civil and Political Rights and the sister covenant on Social, Economic and Cultural Rights. Second, the fundamental rights are subject to limitations (reasonable restrictions) placed by legislation, subject to judicial review. Third, and perhaps most critical, the constitution does not merely conceive of human rights as a corpus of constraints on state power but also addresses them to institutions in civil society (notably through constitutional outlawry of untouchability and semi-slavery); what is more, the constitution creates offenses (a task normally assigned to criminal law) in the part enunciating fundamental rights and overrides federal principles by providing on obligation on Parliament to enact further suitable legislation. Fourth, the constitution provides not just for affirmative action programmes for the scheduled castes, scheduled tribes and other backward classes but also provides for a scheme of reservation of seats in state legislatures and Parliament providing secure modes of access to political power and principle now extended to grassroots governance in villages and cities, extending the reservation to women, by the commonly known as Panchayati Raj amendment to the constitution. Fifth, the fifth and the sixth schedules to the constitution provide for autonomy to Hill District Councils, such that they have the power not merely to declare that the state law is inapplicable but also the Federal law may not operate in the indigenous areas.
The Indian constitutionalism extends conceptions of rights, innovatively, to civil society, embraces social and economic rights, provides of rights to political participation for the "weaker" sections of society, and reconfigurates 'positive' and 'negative' liberties. The Namibia, and one in the making in Eriteria build on but also transcend the Indian modeling of civil liberties and peoples' rights.
We see in Indian constituion is texturing of rights notion an invention of tradition (cf. E.Hobsbawn, 1983). The nearest in the classical Hindu jural tradition equivalents were notions of adhikar (which conflates 'rights' with 'power') and hak (which is more akin to legally enforceable claim). While sustained research is needed in varieties of rajdharma (the dharma of the ruler, the king) and the imperative of respecting lokadhikar (rights of the people but usually conceived of a rights of communities personified). It is clear that these did not anticipate any major elements of modern conceptions of human rights. In this sense, the invention of tradition, contra Giddens, does not result in the "evacuation" of any tradition (1994: 95-96) or any tautology in the sense that "all traditions ... are invented." All the same , both in intention and historic impact the constitutional enunciations serve the role of what he describes as "detraditionalization."
The notion of detraditionalization apparently does not extend at a global level to modes of production of knowledges of dominant ideologies or entrenched paradigms of governance and rights. It is altogether natural, therefore, that the question is not even posed, how through the nationalist struggle and the accomplishment of constitutional enunciation, as to how the Indian conceptions of rights developed both through the nationalist struggle and accomplishment of constitutional enunciation, may have affected the dominant paradigms. But there is reason for saying that contemporary conceptions of self-determination, freedom from social discrimination, and notions of just freedom were distinctively Indian contributions.
When Lokmanya Tilak dared to say in the twenties that "swaraj is my birthright and I shall have it" he was not situating himself within the Indian traditions or the high colonial versions of the rule of law. Radically incomprehensible to the ruling ideology, this motto propelled, as it were, the nationalist movement to a high attitude. Equally important, it contributed to a ferment of thought which fifty years later achieved for the peoples' of the world an enunciation of the right to self-determination under international law. Mohandas Gandhi's heroic protest at early forms of apartheid was an attempt to detraditionalize colonial legal liberalism and yielded, under the leadership of the Third World, again a century later, the Convention on the Elimination of Racial Discrimination. Abedkar's notions of justice as emancipation - not just freedom but just freedom - certainly anticipated with remarkable originality the current crises of (Northern) theories about justice.
Perhaps, my attempt to bring all this back to the context of reflexive globalization may be assimilated merely to "global babble" explained, elegantly by Mike Featherstone as a process where "the rest are increasingly speaking back to the West" (1995:13). Once you reduce old and complex cultures and civilizations to the 'periphery' it is but natural, even though arrogant, to reduce voices from these as "babble', inviting would - be discursivity partners to worry about the progressive hearing impairment on the other side! The task then is how to glocalize the theorists of globalization!
The story of development of Indian constitutionalism in its formative years has often been told. The narrative centres upon the conflict between a hegemonic executive which relied on charismatic leadership and symbolic capital of nationalist struggle and a judiciary construing legalism as an ethical value summoning interpretative fidelity. The first two decades marked the ascendancy of executive power over definitions of individual rights (especially the fundamental right to property) and more importantly in the assertion of sovereignty of Parliament over the issue of amendment to the Constitution. This is not the time or place to revisit the narrative. But it should be sufficient to say that the conceptions of postcolonial legality which emerged on both sides - legislature executive and the judiciary - did not mark any discursive rupture with the dominant metaphors of colonial legal liberalism.
The incipient break occurs in 1967-1969 and a more fully fledged discontinuity establishes itself, in momentous ways, in 1973. Both these moments result in even more, and relatively irreversible discontinuity with the past, since the 80s. All these three moments amount to the reinvention of rights and of politics of human rights. We will need to dwell, howsoever briefly on each.
The first moment of incipient discontinuity registers an interrogation of the paradigm of executive hegemony over the nature and fate of human rights enshrined in the constitution. The Supreme Court accepts yet another abridgement of property rights by the Seventeenth Amendment, but not without raising the germinal question whether fundamental rights may be construed as "playthings of power." Two years later the Supreme Court, in an anxious and deeply divided articulation, ruled that Parliament's power to amend the constitution does not extend to abrogation of fundamental rights. This was the first historic step towards the discipling of a hegemonic and dominant executive power in the title of protection and promotion of human rights and gesture of autonomization of adjudicatory power of the state from legislative/executive realms.
Faced with an incredible reassertion of Parliament's power to amend and even repeal the constitution, on the basis of liberal majoritarian 'democratic' principles, the Supreme Court in the second moment in 1973 concedes. Parliamentary supremacy to amend all parts of the constitution but denies the power to repeal it and subjects this power to the judicially enunciated doctrine of the basic structure of the constitution. Amendatory power cannot take away the essential features of the constitution named as 'rule of law,' 'equality before the law,' 'democracy,' 'socialism,' 'secularism,' 'federalism' and above all the powers of judicial review, reducing to pale historical significance the celebration of Marbury v. Madison.
And exercising this power in the heyday of emergency, it declares unconstitutional an amendment enacted by Indira Gandhi. Ineluctably, the basic structure is what the Judges at any time say it is but peoples' rights are placed now on a more secure footing within the discipline of articulate legal contention, judicial tradition and emergent constitutional cultures.
The detraditionalization of the dominant cosmopolitan traditions of legal liberalism proceeds apace in the third moment, through the post-emergency cathartic growth of judicial engagement with the violations of the democratic rights of the Indian people. These news structures of engagement begin with a public acknowledgment of judicial failure, and the shame of it, during the brief interlude of Emergency unconstitutional governance. In the first phase, a radical democratization of access to courts takes place by privileging people's letters to Judges (the epistolgry jurisdiction) as legitimate vehicles of raising the issues of rights violation. The historic shift takes place in throwing overboard the restricted colonial legal liberalism's notions of standing (now any citizen may write letters complaining about violations of rights of other citizens by way of public interest). And the process matures (with initial distortions and waywardness) to a partnership between civil society and the adjudicatory powers of the state aimed at combating governmental lawlessness.
This moment marks a remarkable disjunction in the project of centralized unity of state power. The adjudicatory power no more seeks to recombine itself with legislative and executive power, but rather sets itself up in active tension, even contradiction, with it. And it does so with the title of protection and promotion of human rights, rule of law and democraticity of governance. The break with colonial/post-colonial traditions of liberal legality stands inaugurated, making the entire discourse on the legitimacy of judicial review power (with its well known celebration of judicial role as being 'antimajoritarian' and therefore 'undemocratic', still robustly alive in Anglo-American juristic traditions) somewhat irrelevant, and even archaic, to the nature and career of democratic development in India. And within a decade the unique Indian innovation of expansive judicial review resonates in Pakistan, Bangla Desh and Nepal. The genre takes a life of its own. Regardless of the well - bred cultivated ignorance or indifference by the first 'world' theorists of democracy, legality and rights, the media, the academia, social action and political groups, human rights activists, ecological and feminist action groups, indigenous and unorganized rural labour associations forge an ever-increasing people - judiciary partnership. Not merely is the repertoire of procedural jurisprudence renovated but a whole new array of people's rights are judicially created and enforced. Thus, the previously categorized unenforceable human rights (directive principles of state policy) are converted into enforceable human rights of life and liberty: the right to shelter, privacy, dignity, health, primary education and literacy, environment. Both micro - and macro - fascism of power now stands subject to strict judicial invigilation. The Supreme Court, and the High Courts, supervise and monitor public administration and state institutions (psychiatric, juvenile, women's homes, jails, 'correctional' centres and related custodial institutions). As one privileged to initiate the potential for judicial activism, I have narrated this story often enough (Baxi, 1989). It is naturally not to be expected that even such a mightly activist judiciary can perform tasks of governance. There are backslidings, factures, of governance. (the Bhopal settlement being archetype).
But there is no manner of doubt that judicial activism has, on the whole, succeeded in making state a little more ethical, power increasingly accountable and governance little more just. In a globalizing Indian economy judicial activism is harnessed by peoples' group to interrogate the headlong and heedless policies of liberalization especially denationalization, disinvestment, deregulation. The extension of judicial activism in this arena has led to a programme for its structural adjustment (Baxi, 1996). But the institutionalized processes of social action litigation are more resilient. By treating immunity from corruption as the most basic of peoples' human rights, the Supreme Court has now captured (in recent months) the commanding heights of redirection of the Indian polity and captured peoples' imagination as the only site available for accomplishing the tasks of redemocratization of India.
This brief but accurately adulatory account of Indian juristic and judicial development (which in many ways continues to nourish similar developments in Asia and Africa) will, I hope interest the projects on regional worlds as well as theorists of "reflexive" globalization. I now wish to return to Ulrich Beck's splendid notions of the "reinvention of politics" in the context of my understanding of the Indian development.
Beck, of course, addresses a wholly Northern scenario but the conceptual apparatuses he erects have a wider resonance, especially the distinction between "rule-directed" and "rule-altering" politics. The former, even with its potential for creativity and non-conformivity, "operates within the rule system of industrial and welfare state society in the nation-state" or "simple modernity" system. In contrast, the latter "meta" or "super-politics" aims at "politics of politics" confronting the inevitable questions concerning the "switching of the rule system" and "what system of rules one should switch to" (1994: 35). Not that these distinctions are wholly hermetically sealed compartments: "both types of politics overlap, mingle and interfere with each other" (p.36). A related distinction is "provided by official politics (rule-directed) and "reflexive" politics ("rule-altering"). To this distinction we must add Beck's notion of "sub-politics" which differs from politics on the following dimensions:
What does then the reinvention of politics through these processes lead to? In the face of despair on the project of "transformation from a national economy of self-destruction to a global and democratic world civilization" the reinvention of politics would proceed at least on a "consensus that the present obsolescent institutions will be unable to achieve these goals under any circumstances" (p.37). In this sense reflexive politics "does not mean just the invention" it also means "the clearing out of the political" (p.41).
I here expounded Beck's conceptual framework at some length (and even then in a schematic form) with a view to make mediation on the politics of human rights in the dominant mode of McWorldism and social Darwinism preeminent in the outpousings of "reflexive" globalization. Insofar as the latter provide any space for human rights, it is wholly assimilationist. Put another way, reflexive globalization theories heavily suggest that it is the globalizing processes which provide conditions constitutive of autonomy, reflexivity, pluralism, diversity and global institutionalization of human rights (Robertson, 1992). Such almost causal celebration of the emancipative potential of contemporary globalization is historically frivolous though indeologically potent (Baxi 1966). It also violates the canon of reflexive globalization theorizing of increasing relative autonomy of agency vis-à-vis the structure. In contrast, Ulrich Beck's perspectives besides being forthful to this canon suggest the potential of politics as a terrain for peoples' deglobalizing/deglocalizing power of praxis.
In terms of Beck's scheme the politics of human rights is both sub- and super-politics being, by definition, rule-altering. Of course, at each level of historical circumstance, condition and complexity, this politics will remain as strong as the integrity which actors bring to it. Given, however, the unleashing of forces production (cybernetics, biotechnology) and new social global relations of production (including McDonaldization, 'hyperrealization' diaspora and "flows" -- for the latter see (Appadurai 1991)) "integrity" becomes profoundly problematic. Its reservation demands allegiance to the "reason" of human rights amidst the "unreason" of globalization (Baxi, 1996).
At the same time, even Ulrich Beck reverts to embed the politics for human rights to the "process of modernization", "political modernization disempowers and unbinds politics and politicized society" (1992: 194, emphasis deleted). How do we relate the inaugural historic struggles of Indian peoples for freedom from the colonial rule of these fertile productivity attributes of "processes of modernization?" The struggle was not merely an example of "sub-politics" but constitutes the site of "meta-" or "super-" politics. It is aimed not merely to transform the grundnorm (to evoke -- Hans Kelsen) of the Indian governance but the grundnorm of the international social/imperial governance. It is possible to say that "freedom" being the Other of "colonialism" the latter caused or contributed to the attainment of the former. But this surely trivializes agency, reducing agency merely to the states of pertinent effect of structures of colonial globalization. It also suggests that all struggles against colonialism/imperialism derive their innate and historic strength from the tradition of classical western liberalism. A mere look at Mahatma Gandhi's corpus will show how misleading such assumptions are.
But Beck is profoundly correct when he says that constitutional rights "are hinges for a decentralization of politics with long-term amplification effects" and that basic "rights with universalistic validity claim" provide a "generally directed process" for political development (1992: 105). His metaphor of the "judge's potential verdict with an omnipresence in the political system" (p.197) could have been better illustrated with reference to Indian, and South Asian, developments than those in the North. The "living law" (or the peoples' law, to evoke Eugene Ehrlich) increasingly pulsates in judicial enunciation than in the moribund acts of legislature and administrative public policy in India.
The reinvention of politics, a sui generis process of invention and implementation of human rights, is, at a pinch, a typically resurgent Southern, than Northern, phenomenon. There are far greater cross-border juristic/juridical flows among countries of the South than between South and the North. The protection and promotion of human rights through the rule-transforming politics of human rights via judicial activism in the South occurs under incredibly difficult conditions for institutionalization of a modicum of conditions of democracy: it is not difficult to understand that justice-communities in the South seek juristic solidarity from each other. In this sense, a remarkably striking intercultural jurisprudence of human rights develops, in which judicial actors are conversant with "global" (Northern) traditions of jurisprudential discourse as well as with their own "cultural" realities. The 1985 Benazir Bhutto judgment by the Pakistan Supreme Court grounds itself in Kelsen, Hart, Dworkin as well as the shariat to produce a far-reaching democratization impact through multicultural juridical innovation (Baxi 1989); so does the recent Nepalese Supreme Court decision mandating wide-ranging public and professional discourse on how the "sensitive" reform on gender-discriminating inheritance law can be accomplished by public participation. Similarly, South Africa exemplifies, for the first time in world constitution-making history, an incredible range of public participatory initiatives on the shaping of its final Constitution (the Constituent Assembly has received so far 20 million petitions on how the interim Constitution may be further reshaped.) No one of these, or related instances, can be said to distinctively, originate in simple or complex, early or late, "modernity."
If theories of "reflexive" globalization were sufficiently 'reflexive' not merely would notions about the reinvention of politics will be world-historically enriched but also the parochialism of juridical and judicial production of legality and rights in the North will be sufficiently problematized. A more inclusive constitution of "we-ness" will also make theory incline itself to address how the fantastically exponential process of new forces of production (biotechnology, cybernetics, telecommunications) and the new social relations of global production (the neo-colonial division of labour, including sexual division of labour; "Mcdonaldization," "creolization," structural hybridizations in production of "liminality" etc.) impact on the politics of human rights. Already, there is in place the emergent paradigm of trade-related human rights (celebrating the human rights of aggregates of capital and technology) conflicted with human rights paradigms, the former conflating free trade and structural adjustment fusing it with social development and the latter siting resistance through empowerment of individual human being and historically disadvantaged groups to reinvent politics. If the enslaving morality of trade-related human rights find its high platform in GATT, NAFTA, APEC and ASEAN, for example, the emancipative morality of human rights articulates itself through enunciation of motto: "Women's Rights are Human Rights", the charter of rights of the world indigenous peoples, the Rio Convention on Biodiversity, and the U.N. Decade on Human Rights Education. The tasks of grasping the totality the new forces of global production and the emerging global relations of production have been essayed already by activist imagination of globalization theory labeled "reflexive" human subjects, who have asserted the 'reason' of human rights against the 'unreason' of globalization. (Baxi, 1996) Their praxis is certainly worthy of inscription on the agendum of reflexive globalization theorists.
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