PART III / CHAPTER 7
BIO-CULTURAL JURISPRUDENCE
Locke also remains one of the exemplar philosophers of
societies is an example of customary law where a gift is an
the 17th and 18th century, a period in which many of our ideas
affirmation of a relationship that obliges reciprocation,
of selfhood emerges. In many ways, the question of personal
the gift therefore can never become a commodity in the strict
identity was the primary question that motivated Locke’s
sense of the word since it is always tied to the giver through
enquiry…While the question of personal identity troubled
the obligations it creates in the receiver.
many philosophers even before Locke, it was only with the
publication of Locke’s Two Treatises on Government and
Mauss by observing the culture of gifts amongst the
Essay Concerning Human Understanding that you have
Maori and in Polynesia established the very opposite of
the establishment of the most coherent argument linking
commodification that ‘the bond created between things
theories of identity to property. If property is both an
is in fact a bond between persons, since the thing itself is
extension and a pre requisite of personality then we should be
a person or pertains to a person’. Hence it follows that to
aware of the possibility that different modes of property may
give something is to give a part of oneself. In this system
be seen as generally encouraging different modes
of ideas one gives away what is in reality a part of one’s
4
of personality.
nature and substance, while to receive something is to receive
5
a part of someone’s spiritual essence. Social, cultural and
Mauss in his work when analyzing the giving of gifts in
spiritual bonds that underlie gifts in traditional societies also
traditional societies was emphasizing their inalienability
underlie relationships bio-cultural communities have with
from the giver. The gift can therefore never become a
their knowledge, lands, territories and resources, which are
commodity that is separate from the person who gives it, but
the heart of their conservation and sustainable use practices.
rather the very act of giving creates a social bond with an
Therefore the right to FPIC in the context of Article 8(j) for it
obligation to reciprocate on the part of the recipient.
to truly affirm the way of life of bio-cultural communities
While property jurisprudence that underlies FPIC in contract
has to underpin the right to consent in accordance with
law emphasizes the rights of the legal subject to alienate an
the customary laws and values of these communities
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object that s/he owns, the nature of the gift in traditional
3. Towards a Biocultural Jurisprudence
The trade route is the Songline’ said Flynn, ‘Because songs, not
that attempt to secure the interests of ILCs. Estrangement in
things are the principle medium of exchange. Trading in “things”
environmental law and policy is generally manifested in
is the secondary consequence of trading in song’. Before the
paternalistic attempts at protecting the rights of ILCs, without
whites came, he went on, no one in Australia was landless,
addressing the root of the matter, which is securing the
since everyone inherited as his or her private property a stretch
foundations that support a way of life i.e. self-determination
of the Ancestor’s song and the stretch of country over which
and customary law.
the song passed. A man’s verses were his title deeds to territory.
He could lend them to others. He could borrow other verses in
It is possible that causes of legal estrangement are cognitive,
return. The one thing he couldn’t do was sell of get rid of them.
due to certain habits of legal thinking that determine what is
Bruce Chatwin, The Songlines
observed and what is ignored when property jurisprudence
encounters ILCs. An effective counter to property jurisprudence
Property jurisprudence when dealing with ILCs is estranged.
is a bio-cultural jurisprudence that takes as its starting point
This estrangement taints even the best-intentioned efforts
the right of bio-cultural communities to determine their way
of the different international environmental laws and polices
of life in accordance with their customary and spiritual values.
4.
5.
6.
Lawrence Liang et al. ‘How Does an Asian Commons Mean?’ . See also Etienne Balibar, My self and My own: One and the Same? In Bill Maurer & Gabriele Schwab,
Accelerating Possession: Global Futures of Property and Personhood, New York: Columbia University Press, 2006.
Mauss, Marcel, The Gift: Forms and Functions of Exchange in Archaic Societies, Norton Library: New York, 1967, p.10.
Hyde, Lewis, The Gift: Imagination and the Erotic Life of Property, Random House: New York, 1983.
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