PART III / CHAPTER 7
BIO-CULTURAL JURISPRUDENCE
It is the determination of such a bio-spiritual ‘self’ that
moral, aesthetic, religious, mythological and socio-
Article 8 (j) seeks to protect and promote. The ‘bio-spiritual
morphological phenomena- meaning can only be grasped if
self’ that seeks to be determined through the act of free
they are viewed as a complex concrete reality.
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consent is constituted through its relations to the land rather
than its proprietary rights over it. While property jurisprudence
In the context of ILC’s lands, territories, natural resources or TK,
divides the world into subjects and objects and gives
Mauss’s point about ‘total prestation’ becomes all the more
coherence to a title claim that ‘this land is mine’, bio-cultural
urgent by asking two important questions: First, ‘what is the
jurisprudence that Article 8(j) seeks to develop emphasizes
total context from within which land, territories, natural
on the connectedness of the bio-spiritual self to the land gives
resources or TK arises i.e. what are the customary and spiritual
meaning to the statement ‘this land is me’.
obligations that regulate its sharing and use? Second, how
can these customary and spiritual obligations be manifested
The bio-spiritual self that is determined in the act of providing
in ABS, REDD, payment for ecosystem services, protected
FPIC poses an alternative conception of the self, which is more
areas or any other such agreements relating to the use of
than just an insular bearer of property rights. It emphasizes
such land, territories, natural resources or TK? Both these
less on rights in its engagement with the Nature and more
questions are crucial because these customary and spiritual
on bio-spiritual virtues that foregrounds one’s connectedness
obligations are a part of a way of life that has conserved and
with nature rather than separateness through the practice of
sustainably used biological diversity and is the way of life that
kindness, love, compassion and reciprocity towards the land.
Article 8(j) seeks to protect and promote.
While justice from the point of view of the contemporary legal
subject is the upholding of one’s property rights, justice for
A language of property is totalizing in the sense that it
the bio-spiritual self is the removal of any obstruction to this
overwrites all other languages of social relations, which
sense of virtuous connectedness with the land.
may have existed. If, for instance, a community had various
norms through which it dealt with questions of the control
2.2 Customary Laws
over natural or cultural resources, these cannot coexist with
a property claim. The introduction of property transforms
In his 1924 classic essay ‘The Gift’, French sociologist Marcel
diverse practices by rendering them illegitimate or erasing
Mauss addressed the issue of customary law and the moral
them from the official memory of the community.
universe it operates in when analyzing gift giving in traditional
societies. Mauss’s explorations provide us with a keen insight
When John Locke theorized the state of nature, one of the
into a dimension of FPIC in bio-cultural communities that is
most important insights that he drew on was the idea that
often missed out in property jurisprudence. The act of
the state of nature lacked a regime of private property.
consenting to sharing or use of knowledge, resources, land
And it was this lack of private property, for Locke that resulted
and territory in bio-cultural communities is circumscribed and
in the unpredictable nature of life since there was no rule of
regulated by their customary values and spiritual obligations.
law, which regulated society. It is important to note that
It is these values and obligations that Article 8(j) seeks to
Locke’s state of nature was not merely an imaginary one.
foreground in its affirmation of the right of FPIC of bio-cultural
While writing about the state of nature, he really had in mind
communities.
practices of indigenous and aboriginal people in Belize and
Guyana. Under English common law, land that was already
Mauss asked an important question that drove his enquiry
occupied or in possession of another could not simply be
into the anthropology of the gift: ‘What power resides in the
taken by force. But Locke helped redefine the concept of
object that causes its recipient to pay it back?’ Mauss was
property ownership to overcome the legal bars to
interested in looking at ‘giving’ as a ‘total prestation’ where gift
appropriation of land in the possession of the Aboriginals
exchanges in traditional societies are viewed as complete
and to facilitate the colonial purpose of the
social movements and are at the same time economic, juridical,
European settlers.
3.
Evans-Pritchard, “Introduction” in The Gift, Marcel Mauss, Norton Library: New York, 1967, p. vii.
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