Law, Social Justice & Global Development
(An Electronic Law Journal) 

Thinking the ‘Impossible’: Peoples’ Law

Dr Jayan Nayar

Coordinator,
The Peoples’ Law Programme,
Lelio Basso International Foundation, 
Rome, Italy

peopleslaw@libero.it

This is a commentary published on: 17 June 2003

Citation: Nayar, J ‘Thinking the ‘Impossible’: Peoples’ Law’, 2003 (1) Law, Social Justice & Global Development Journal (LGD). <http://elj.warwick.ac.uk/global/issue/2003-1/nayar.html>

Editors Note

This commentary is being published as part of the open forum on ‘Modernity, Nation and Empire’ on the Law, Social Justice and Global Development (LGD) Journal. Readers are welcome to contribute to the forum which will be updated regularly to incorporate submissions. Please email your comments to: Celine.Tan@warwick.ac.uk

The Peoples’ Law Programme is an attempt to build a collective movement for a redefined law, a movement to reclaim the idea of law from Power. This paper (always ‘a work in progress’) we hope will contribute to multiple conversations towards a decolonisation of law. 

1. A Second Superpower?  Let’s Think Like One !

Indeed it is time to begin thinking like a ‘superpower’.

How long must we carry on with this tendency to lament (perpetually) the (perpetual) betrayal of law’s promise? We do this well, and always end our reflections with the plea that something ‘new’ is necessary. We collectively celebrate this realisation. And? 

Can we begin at the end instead? And set about thinking the impossibles?

We have conceded too much, we the ‘social majorities’ of the world, thereby betraying a dream. At the altar of contemporary givens – the ‘ideas’ and institutions of governance, both local and global, that have taken on an apparent pre-eminence of inevitability, immutability and naturalness – too often we cease the responsibility of imagination which once was the lifeblood of liberation-thought. We remain (newly) colonised. The dream of ‘decolonisation’ awaits our efforts again towards realisation.

There is nothing inevitable, natural or good about the present ordering (in terms of both orders given and orders created) of human societies within the global political-legal cultural imagination. That there is nothing good in the militaristic, corporate control over the political-legal space that represents the landscape of governance today is an indictment that few would contest; that few being the public voices of domination that remain our (enforced) ‘leaders’. That there is nothing natural about this imposed order is something most of us would believe, much to the chagrin of the imperial voices which repeat time and again the evolutionary logic of their violence. That there is nothing inevitable about this colonising trajectory must be the line we draw upon the ground of (our) story, to be crossed as the act of decolonisation, as the moment of decolonisation.

The purpose of this paper is to introduce an attempt which instigates for such a decolonisation moment – The Peoples’ Law Programme (PLP). Its target is the idea of ‘Law’. This is more than about protesting law’s workings, more than about denouncing law’s injustices. 

Indeed it is time to ‘rethink’ law.

2. A Peoples’ Law Perspective.

The PLP, from its very beginning, was motivated by the apparent disjuncture between the rhetoric of ‘Law’, as particularly articulated through and in the language of Human Rights, and the realities of suffering that is inflicted upon the social majorities of the world through the various guises of ‘security’, development’, ‘economic restructuring’ and the like. The idea of Peoples’ Law was born out of this realisation, so as to act as a means of reclaiming the idea of law; amplifying the voices of judgement and resistance of the violated, and to dignify those articulations as carrying with it the weight of Law.

Peoples’ Law, therefore, is an affirmation and an extension of the notion that the ordinary people of the world have the right to judge violation. A fundamental orientation of a peoples’ law perspective, therefore, is to counter the assumption of misfortune which belies much of the ‘dominant’ construction of deprivation through the explicit denunciation of the violence and the violation of current world orders. The ‘globalisation’ of human suffering that is the result of structural features of the national/global political-economic-legal systems must clearly be rejected as being the consequence of misfortune. It must resoundingly be condemned as the consequence of violations. 

The need to assert this right to judgement is ever more important today, and this we see by the many peoples’ tribunals being held across the world, by the gatherings of the social majorities in various peoples’ forums, by the increasing numbers of ordinary citizens saying no to the policies of power. 

The conceptualisation of the PLP begins, therefore, not with the aim to reform law, to plead ever again to ‘power’ to concede some token gesture of amelioration to the sufferings of the peoples, but to reclaim the very idea of law – ‘Power’ after all proceeds along in its ordering programme, increasingly confident and arrogant of its historic mission to create a world in its own image. Peoples’ law articulations, as envisaged by the Programme, provide the significant intervention in the space that separates the rhetoric of human rights and the realities of humans wronged. More importantly, it reveals the significance of the inherent legitimacy of the emerging notion of peoples’ law and its substantive contents of judgement and vision. This is so given the betrayal of the ideological legitimisation of the notions of ‘politics’ and ‘law’ that is purportedly provided by the promises of inclusiveness, universality and equality that are expressed through the words ‘we the peoples’, within the legitimising texts of the ‘dominant’ political-legal order. 

But peoples’ law is something more than protest. It is more than urging power to reform. It is more than trying to be invited to speak with power. It is more than being critics of power. Peoples’ law is about creating a different authority for judgement and action altogether. 

This brings us to the underlying tenet of the Programme in advancing the notion of ‘peoples’ law’. Everything, the world so to speak, is up for grabs. And it is precisely this grabbing that is being pursued by the powerful, the dominant, in their appropriation of the idea of ‘law’, and through it, the mechanisms of governance, to preserve, and promote, their interests. But, there is nothing which determines that it is only the prerogative of the powerful to undertake a rethinking, an appropriation, of law. There is nothing which prevents the violated from doing the same. If anything, it is the violated majorities who have the ideological claim (let us hold aloft for a moment those platitudes of peoples’ sovereignty, law of the peoples, by the people, for the people, and the like) to the idea of Law. So whilst, ‘globalisation’, and now more explicitly, globalisation a’la Pax-Americana, heralds a period of violent uncertainty which marks the ‘death’ of an earlier vision of law for which we may despair, it has also made explicit the ‘theoretical’ humbug upon which this ‘Empire’ was built. The ‘new world order’ consists no more of the assumed ‘post-colonial’ community of ‘independent, sovereign states’, but rather, essentially, of a reworked colonial administrative structure of ‘local chieftaincies’. The ‘liberty to Law, therefore, is still constrained by the colonial test of ‘repugnancy’. Within these boundaries of ‘freedom’, the (statist) administration of colonised peoples is maintained.  

To attempt to fight the new-colonialism through the ‘law’ of old is, therefore, to wield weapons of air; we make the mistake of irrelevance when we seek so to do as we bemoan the death of a promise. Instead, a possibility to articulate ‘decolonisation’.

If it is the desire of ‘power’ to take for itself the ‘idea’ of law as it is conventionally understood, if it is the theft of ‘power’ to appropriate authorship of law for its own sake and negate the right of authorship inherent in the people, if it is the confidence of ‘power’ to do so in ways which blatantly disregards the existence of the people as primary subjects of that law and not merely inconvenient objects to be subjugated, then a peoples’ law perspective would say ‘Enough – for this is not our law’. And flowing from this primary act of ‘decolonisation’, are a series of demystifications, of the perceived inevitability, and inviolability, of the dominant institutionalisation of law and governance:

•	Despite attempts to claim the opposite, there exists no inviolable right, on the part of the powerful, to govern, rule, order, the weak.

•	Notwithstanding attempts to convince otherwise, there exists no pre-ordained rationale for, eternal truth of, inevitability regarding, forms of socially constructed orders that form the institutions of governance, including the form of ‘Law’.

•	Regardless of the ideological claims being advanced, there exists no unifying or unified civilisational consensus on values, truths, visions of human futures that prescribe a universal course for humanity’s social evolution.

Explicit in the current ‘project’ to create a peoples’ law movement, therefore, is the positing of conflict between differing conceptions and values of world order-ing that move the divergent orientations of current ‘global governance’ regimes, on the one hand, and the radical, revolutionary potential of peoples’ law, on the other. There is a considerable need to counter the silence within dominant fora for the dissemination of ‘knowledge’ about the world by prising open the doors of ‘truth’ to the voices and substantive demands of the people on righting the wrongs committed against them in the name of law:

Peoples’ Law as a process of reclaiming Histories and Futures: An underlying thrust of the conceptual and practical implication of peoples’ law is the reclaiming of peoples’ rights to ‘truth’, manifestly in the reappropriation from dominant sites and processes the narratives of history and futures. An elaboration of peoples’ law, therefore, impinges on the very basis upon which ideological constructions of the ‘world’ are maintained and promoted. Much of what can be seen as peoples’ action is this regard has been to re-tell history as a means of reclaiming the power of memory and judgement.

Peoples’ Law as a manifestation of reclaiming Political Action: Running through the entire range of people’s political initiatives in opposition to ‘power’ is a fundamental reclaiming of the ‘right to act’. Peoples’ Law therefore brings to the fore ideas of political action which counter-poses the mainstream conceptualisation of democratic politics with the radical re-appropriation by peoples groups to initiate what might be termed ‘grassroots democratic action’ of and for law.

None of this will be easy, that is merely to state the obvious. We cannot tell how long it will take the forces of democratisation and justice, of peoples’ movements, to reclaim our worlds from the clutches of power. There is no timescale for how long it will take for political mobilisation to generate sufficient strength of force to truly counteract the laws of power with alternative peoples’ laws. But we can make a beginning. The People’s Law Programme is intended to contribute to such a beginning for a peoples’ law movement. 

3. The Peoples’ Law Programme: A Statement of Basic Principles.

a) Reclaiming Sovereignty.

The language of peoples’ law is indeed intended to re-call the basis and re-member the constituencies of political-legal action. 

For the purpose of building an agenda for the development of a peoples’ law movement, the Programme begins with a restatement of ‘sovereignty’ which affirms the peoples’ right to law and which thereby challenges the very hegemony of corporate-statist monopolisation of the law word/world: 

•	Judgement: the right/power of peoples to pass judgement on the ‘realities’ that are inflicted upon them and to name as violation that which is otherwise proclaimed as normalcy by the dominant powers.

•	Authorship: the right/power of peoples to author/create ‘law’ and to define the structures and nature of social relationship conducive to a life of security and welfare.

•	Control: the right/power of peoples to control (and not merely ‘participate’ in) the processes of decision-making and judgement in relation to the matters which affect the daily life-conditions of their communities.

•	Action: the right/power of peoples to effect the ‘implementation’ of their alternative visions of social relationships in ways which reinforce and celebrate the diversity of humanity, for humanity.

The practical implications of these fundamental principles to the development of the Programme lies in the following:

i.	on the identification of the ‘texts’ of peoples’ law
ii.	on the location of valid judgements and the normative imperative that these judgements entail
iii.	on the ‘jurisdiction’ of peoples’ actions with respect to interventions against violations.

i) Texts of Peoples’ Law 

For the purposes of the Programme, texts of peoples’ law constitute the articulations of peoples’ judgements with respect to the worlds of ‘power’ and visions of alternative possibilities. They are to be found in the many forms of peoples’ articulations; in Declarations and Charters, in Statements and Calls for Action, in Peoples’ Tribunal Verdicts, in poetry, vision statements, solidarity messages. In all, these texts represent an alternative ‘source’ of peoples’ indictments, aspirations and commitment, as well as alternative projections of possibilities and the means by which these may be struggled for. The Programme seeks to accord to these texts normative weight and to amplify, by way of collation and dissemination, the substance of peoples’ law.

ii) Location of Judgement

Central to the politics of peoples’ law is the reclaiming of the right to judgement. Rejecting the negation of voice which is entailed through the exclusionary tendencies of power’s law, the Programme seeks to emphasise the validity of peoples’ fora of judgement, of ‘doing law’. The sites of peoples’ law are manifold; peoples’ tribunals, peoples’ consultations and gatherings, street conferences, all might be regarded as sites of judgement. The Programme seeks to bring to greater prominence the utilisation of peoples’ movements of these sites and to promote and instigate for greater use of such sites both as a political manifestation of the right of law inherent in peoples of the world as well as process of substantive elaboration of different and differing ‘verdicts’ on reality from that presented as ‘reality’ by ‘power’.

iii) ‘Jurisdiction’ of Action

Following on from the ‘source’ and the ‘location’ of peoples’ law is the reclaiming of peoples’ right to action. The Programme is this respect is directed towards creating a jurisdictional base from which the ‘implementation’ and ‘enforcement’ of peoples’ judgements may be undertaken. This aspect of peoples’ law, therefore, is fundamentally directed towards the reorientation of ‘politics’.

It may be viewed that this formulation of peoples’ law is indeed a restatement of the basic postulate of law being, ‘of the people, for the people and by the people’.

b) The Actors

The Programme is focussed on the judgements and actions of peoples. These then are the actors and agents that form the foundations upon which the ‘source’ of law and its implementation is taken. 

The ‘people’ for the purposes of the Programme is not a closed, conceptual construct. They require no external, objectified, objectifiable, definition. They constitute organic, political realities of solidarity. They need not be homogenous in any abstracted sense; they are flesh and blood, with contestations and even contradictions amongst themselves. Differences, the potential for conflict, diversity of intra-group perceptions and strategic choices, none of these are precluded from the collective affirmation of solidarity as a people, nor are they necessarily to be precluded. This would negate the very essence of a living movement reclaiming the law. Social life and visions are rooted in the manifold negotiations amongst people as a people. Differentiations of power, persistence of historical hierarchies and prejudices may both be real presences within the people. Yet they do not diminish the existence of peoples as ‘peoples’. The people of peoples’ law may determine the issues of contestations for themselves; they may affirm solidarities notwithstanding these contestations. They are not fictitious ‘law-models’ in any ‘original position’; they exist in real time, real place and with real hopes, convictions, uncertainties. They do need it to be repeated unto them the patronising benevolence of ‘civilised’ law’s promise of objective and universal resolution of their conflicts. The peoples of peoples’ law are aware and conscious of their own need for critical self-reflection and corrective action. They move in fluid form and evolve into political manifestations. The peoples in peoples’ law are a lived consciousness. They are self-defining. And for all their ‘messiness’ as a ‘legal concept’, they are the richer in their political voice. 

The Peoples’ Law Programme, based upon the fundamental ‘right’ of people to law, affirms also the right of peoples’ to self-definition. Never mind whatever discomfort this might cause for the ‘lawyer’; never mind the irreconcilability with power’s law. 

This said, the Programme is, however, not an apolitical vessel. The Programme itself undoubtedly, and it would be disingenuous to pretend otherwise, is premised on political and ideological judgements of solidarity. Although it is certainly within the rights of any collectivity to self-define as a ‘peoples’ within the conceptual and framework outlined above, that does not necessarily coincide with a solidarity affirmation by the Programme. Some fundamental principles of political orientations abide notwithstanding the so-called indefiniteness of our ‘postmodern’ world. The Programme retains the right, therefore, to apply an interrogation of the ‘justice-cause’ of a peoples’ mobilisation in determining support. Justice-denying mobilisations which seek the denigration of suffering, which proclaim the priority of rights to violence, which assert the individuality of political visions that possesses no cross-mobilisation solidarities of suffering, none of these would fit within the Programmes vision of actors contributing to a more humane realisation of politics and governance. 

4. Building the Programme.

Based on the principles and orientations outlined above, the programmatic agenda of building a movement of Peoples’ Law as envisaged by the Programme are as follows:

•	To pursue the elaboration of the political orientations and resistance force of peoples’ law.

•	To enable the exchange of historical and cultural experiences and imaginations of peoples’ law with a view to develop a resource base of peoples’ law texts.

•	To facilitate the dissemination of knowledge regarding peoples’ law and the communication of experiences of struggles and strategies towards upholding the justice demands of peoples’ judgements.

•	To contribute towards the democratisation of ‘law’ and political practice which takes as its authority  the articulations of communities of the violated.

•	To legitimise the just struggles of peoples’ against injustice and violation and to gain legitimacy for peoples’ conceptualisations of a just and democratic society.

i) Preliminary Work

Towards this agenda, the Programme is seeking to act on the following tasks as requiring initial attention:

•	To identify partners for dialogue amongst grassroots peoples’ organisations, and other related/interested parties, on the development and dissemination of a movement for peoples’ law.

•	To identify and analyse various peoples’ law forms and initiatives (for example, peoples’ tribunals, citizen’s juries, peoples’ forums) and the historical and contextual experiences of these in their respective struggles for voice and justice.

•	To identify and compile a substantive database of peoples’ law texts (for example, peoples’ declarations, charters, statements, verdicts, folk songs, poetry) as texts of peoples’ law. Of particular importance in this regard are women’s visions of ‘law’.

•	To invite analytical contributions from activists on the subjects and experiences of peoples’ law and to advocate for the publication and dissemination of this emergent jurisprudence.

An important first step towards creating a ‘Programme’ is necessarily to bring together various peoples’ groups and other related organisations who are already engaged in what might be regarded as peoples’ law initiatives and struggles as a coalition of forces. It is obvious that many solidarity coalitions already exist, particularly as manifested in the struggles against corporate-globalisation and in the transnational alliances which move the ‘Social Forum’ initiatives. In addition to these manifold peoples’ mobilisations, exist also groups whose initiatives are more directly ‘law’-related – peoples’ tribunal initiatives provide such an example. Some of these tribunal initiatives maintain a continuing institutional presence – in addition to the Permanent Peoples’ Tribunal, the Indian Peoples’ Tribunal is perhaps the most established and functionally sophisticated in its interventions. Other Tribunal initiatives have had lesser longevity, mainly due to the focus-specific orientation of their work – with respect to these, the Burma Tribunal on Militarisation and Food Insecurity, the Women’s War Crimes Tribunal, the Africa Tribunal, are examples. It is important that these different initiatives be greater coordinated and linked so as to form the origins of a peoples’ law network.  Part of the ambition of the Programme is, therefore, to connect in more explicit and visible ways the ‘protest’ movements against power’s law with an alternative doing of law. To speak the language of peoples’ law in a more concerted and coordinated manner, to posses a coalition of voices constructing a dialogue and resistance stance with this language of peoples’ law, can only increase the effectiveness of peoples’ visions for and rejections of current world-ordering tendencies. This in essence is a task of building an ideological capability from which the politics of peoples’ law may be effected.

The task of compiling a resource-base of peoples’ law texts is another area of obvious urgent necessity. Although it is undeniable that there exists a proliferation of peoples’ mobilisation against violations, there is little documentation and collation of these articulations of judgements. The dispersed nature of sources and the lack of coordination in the accumulation of what might be developed as a peoples’ jurisprudence only serves to minimise the potential impact of these texts. In this way, words of judgement appear to have short lives, every ‘forgotten’ text a shameful loss to the archive of peoples’ voices.  The Programme, therefore, seeks to remedy this lack of pronounced and enduring visibility and voice by providing a one-stop location for peoples’ law texts. The accumulation first, then the dissemination of peoples’ judgements and actions in the various identified areas of human concern – for example, food sovereignty, human security – provides for a greater force of political articulation that may otherwise be dissipated. 

ii) Building an Action Capability

The specific facilities which are envisaged as being crucial to contributing to a peoples’ law movement are set out below:

•	Documentation Centre: to enable the offices of the PLP to function as a resource-base and port of call for peoples’ organisations seeking information and experience of peoples’ law initiatives through the documentation of peoples’ law texts as a substantive content of emerging normative standards against corporate-dominated ‘globalisation’ and for alternative worlds of non-violent relationships.

•	Tribunal Network and Activities: to increase the profile and strategic intervention of the PPT and other peoples’ tribunals to serve as effective sites for peoples’ groups to judge violation from which international solidarity may be generated on the broad themes and visions of the social majorities. The Tribunal Network would enable wider dissemination and the sharing of strategic visions towards an enhanced political mobilisation of a peoples’ law movement. 

•	Conversations Initiative: to provide a facility for the exchange of experiences on peoples’ law initiatives through periodic gatherings of representatives of peoples’ movements to reflect on the specific and general histories and possible futures of peoples’ political action and law-making.

•	Peoples’ Law Observatory: to utilise the offices of the PLP to maintain ‘continuous jurisdiction’ with regards peoples law initiatives, for example by internationalising local and regional tribunal activities by taking on a follow-up capacity which would monitor and promote/demand the realisation of peoples’ demands for justice.

•	Publication Series: to provide a site for the dissemination of peoples’ law stories through the publication of analysis, experiences and theoretical contemplations resulting from the praxis of peoples’ law.

We invite critical engagement from everyone concerned towards the building of the Programme. We request for comment and guidance. We work in anticipation that through dialogue and collective action to amplify the content and processes of peoples’ law, we might indeed move closer to realising a world that is less violent and more just. 

Contact.

Jayan Nayar
Coordinator 
Peoples’ Law Programme.
Lelio Basso International Foundation
Via Della Dogana Vecchia, 5
00186 Roma
Italy.

Tel: 00 39 06 6865352
Fax: 00 39 06 6877774
Email: peopleslaw@libero.it

For further information on the Lelio Basso International Foundation of the Rights of Peoples and the work of the Permanent Peoples’ Tribunal, please visit
www.internazionaleleliobasso.it