PART III / CHAPTER 7
BIO-CULTURAL JURISPRUDENCE
Bio-cultural jurisprudence seeks to identify and name those
only knowledge and no virtue, for the very efficacy of one’s
habits and devices of property jurisprudence that underlie
knowledge depends on one being virtuous. The gunis have
environmental law and policy that estranges it from ILCs and
a saying that captures this sentiment clearly: ‘In the guni
proposes alternative habits and devices that help to
only the guna/knowledge/virtue is worthy of respect,
adequately take on board bio-cultural values in law making.
irrespective of the guni’s gender or age’. Traditional healers of
the forest dwelling Malayali tribes of Tamil Nadu, before
The estrangement of property jurisprudence from bio-cultural
harvesting pray to the medicinal plant asking it permission
communities is a result of it being unable to relate to these
if they could harvest it and harvest it with their thumb and
communities with its current legal concepts and definitions
little finger to cause it as little harm as possible all the while
of ‘owner’ and ‘property’. These legal concepts of property
thanking it for its medicinal properties and praying that the
prevent the law from seeing enough to relate to. If the
life within it stays strong after the harvest They also collect
opposite of being estranged is to find a people believable,
the seeds of the plant, which they harvest and plant them
then bio-cultural jurisprudence seeks to counter the
elsewhere so as to conserve the plant.
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estrangement of property jurisprudence by making
bio-cultural values believable not just by articulating them,
Nature disconnected from the bio-cultural relationships that
but also by highlighting, historicizing and deconstructing
underlie it, is understood as property and this is presented
the values of property jurisprudence that are hitherto
as a self-evident fact in property jurisprudence. Facts are
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taken for granted.
discourse dependent - they do not exist out there waiting to
be discovered by us but rather what we describe as facts are
Traditional healers in Rajasthan who refer to themselves
based on our perception of the world. The dichotomy
as Gunis have a strict virtue code on sustainably harvesting
between facts and values is illusory to the extent that our
medicinal plants, caring for the land and not profiting
values inform what we perceive as facts rather than the other
from their TK but rather unconditionally serving those who
way round.
are ailing. In fact the Sanskrit term ‘guna’ means both
attempt to place the bio-cultural values of ILCs at the heart
knowledge and virtue, and a guni is one who is both
of environmental law making and therefore initiate a
knowledgeable and virtuous. The gunis on a number of
radical rethink of the ‘facts’ of property jurisprudence that
occasions have stated that one cannot be a true healer with
the law takes for granted.
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Bio-cultural jurisprudence ultimately is an
4. Biocultural Commmunity Protocols as
Bio-cultural Jurisprudence in Action
ILCs are increasingly reading their right to self-determination
In both the ICCPR and the ICESCR, Article 1 states, “All peoples
and customary laws into existing and emerging environmental
have the right of self-determination. By virtue of that right
laws and policies thereby actively creating bio-cultural
they freely determine their political status and freely pursue
jurisprudence. They do so by relying on the international
their economic, social and cultural development.”
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human rights instruments such as the International Covenant
on Civil and Political Rights (ICCPR) and the International
While this right has been historically construed to apply to
Covenant on Economic, Social and Cultural Rights (ICESCR).
individuals, both the U.N. Human Rights Committee - the U.N.
7. Gearing, Fredrick O, The Face of the Fox, Sheffield Publishing Company: Wisconsin, 1970, pp 3-5.
8. “Om mooli, maha mooli, jeeva mooli, un uver, un udalilinirka Swaha” This Tamil prayer recited before harvesting a medicinal plant is roughly translated as
‘O great living plant, let your life not be harmed by this harvest’. The healers believe that a plant has the power to curse them if not harvested respectfully.
9. Based on interviews with Gunis and the Malayali healers - interview transcripts with Natural Justice at www.naturaljustice.org.za
10. Putnam, Hilary, Reason, Truth and History, cited in Margret Jane Radin “Market Inalienability”, 100 Harv.L.Rev.1849 (1987), p.1882-1883.
11. The International Covenant on Civil and Political Rights (ICCPR) was adopted by the United Nations General Assembly on December 16, 1966, and entered into force
on March 23, 1976, and ICESCR, The International Covenant on Economic, Social and Cultural Rights (ICESCR) was adopted by the UN General Assembly on
December 16, 1966, and entered into force on January 3, 1976.
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