The Scandal Of Enlightenment And Birth Of Disciplines: Is International Law A Science?

© Koninklijke Brill NV, Leiden, 2010 (12 INTERNATIONAL COMMUNITY LAW REVIEW (The Netherlands: Martinus Nijhoff Press, 2010, forthcoming) and to be reprinted in INTERNATIONAL LAW: CONTEMPORARY ISSUES AND FUTURE PROBLEMS (S. Silverburg ed., Boulder/Colorado: Westview Press, 2010 forthcoming).

THE SCANDAL OF ENLIGHTENMENT AND THE BIRTH OF DISCIPLINES: IS INTERNATIONAL LAW A SCIENCE? Prabhakar Singh* Assistant Professor, Jindal Global Law School, India

Abstract Today’s mainstream international law scholarship (MILS) is concerned primarily with the issue of its scientificity. This brings us to the larger epistemological questions of linear modernity, narratives of circular progress, role of colonisation and rejection of pre-science. International Law is not a self-contained regime as it draws insights from all the other disciplines that were born after the Enlightenment. This article makes a psychological investigation using Nandy’s psycho-political framework under Third World’s Approaches to International Law (TWAIL). It also sees, as a case in point, the invasion of modernity via late capitalism into tribal life as modernity’s apology for the “third” disenchantment. International Law’s evolutionary scientificity, therefore, has been examined through psychology and mythology in the post-colonial world. Key Words: Enlightenment, TWAIL, Nandy, anti-modernism, emotive and psychological aspect of PIL, history versus Mythology, colonisation, systems of knowledge.

I. Introduction In recent years it has become fashionable “in the Postmodernist camp, to disdain the Enlightenment as biased, facile, self-deluded, over-optimistic, Eurocentric, imperialistic, and ultimately destructive”.1 But we have now moved from a postmodernist to an anti-modernist discourses, and some nonWestern scholars like Ashis Nandy have identified the Enlightenment as a tool used to obscure non-European history while helping the legitimisation of colonisation.2 Yet Jürgen Habermas does not think that postmodernism and anti-modernism are different. Nonetheless, Latin “modernus” from which derives the term modernity was first spoken of in the fifth century to distinguish the modern Christian world from its Roman and pagan past: thus associating modernity only to Renaissance is too narrow.3 Instantly we see

*O. P. Jindal Global University, Sonipat, National Capital Region, India. An early version of this piece was submitted as the thesis for my LL.M. in International Economic Law & Policy (IELPO 2008-09) at the University of Barcelona, Spain. I am thankful to Stephen Weatherill and an anonymous reviewer from ICLR for comments. However opinion expressed are all mine. ([email protected]). 1 Jonathan Israel, Enlightenment Contested: Philosophy, Modernity, and the Emancipation of Man 1670– 1752 (New York: OUP, 2006). 2 See, Ashis Nandy, The Intimate Enemy: Loss and Recovery of Self under Colonialism, in A. Nandy (ed.) Exiled at Home (2nd impression, New Delhi: OUP, 2002) pp. v-121. 3 Jürgen Habermas, Modernity versus Postmodernity, 22 New German Critique (1981) pp. 3-14, at 3.

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that the history of modernity is contextualised in European experience, whatever the name, history or a despicable past. One should then expect a different narration from the perspective of the colonised; India, for example, because the experience of the “modernus” in India and Europe were not same or even identical. Fact remains that the Enlightenment virtues like secularisation, toleration, equality, democracy, individual freedom, and liberty of expression that challenged monarchy, aristocracy, authority, and tradition in Europe could not prevent the colonisation led exploitation – social, political, psychological, and material—of the non-European or the “other” world. The universality of the Enlightenment thus is a farce and if at all some of its ideas trickled down into colonies, it was not intentional. Colonial land was first sought to be civilised by Christian missionaries and later the capitalists, disenchanted from religion, used colonial recourses for the economic benefits of market, and buying political currency back home. Colonisation, as a vehicle, was used to spread the themes of European revolution, the birth of science and the burden of imparting civilisation to the “others”. The nexus between them both: the missionaries and the capitalists became obvious when international law began taking shape in two Hague peace conferences. The works of religious scholars, who were mostly natural in approach, were cited as the sources in a bid to universalise international law. Gentili, Suárez, Grotius, and many such names were then cited to defend colonisation with the assumed burden of civilising people.4 International law was only a justification for acquisition and management of the colonies that now presented immense market potential. A particular culture’s history is local and only during the period of colonisation, history was pursued as a project of universal experience. The question thus arose: is the non-West in general and India in particular, for example, uncivilised? A third world approach to study the systems of knowledge, of which international law is a part, is essential to discovering contested histories of the non-European World. TWAIL puts colonisation in the centre of international law formation.5 Certainly, the non-European world posed numerous problems to the international system. How were these peoples to be governed?6 On what legal basis could their lands be occupied? But, in international law, these were viewed as secondary problems that did not impinge on the great theoretical issues confronting the discipline.7 Assigning a secondary attention to concerns of the “other” world in international law theorisation comes from the then dominant view of Europe about the colonised as heathen, despicable, unsystematic, uncultured, unscientific and what not?

See a discussion and comparison of contributions of these three scholars in, Theodor Meron, Common Rights of Mankind in Gentili, Grotius and Suarez, 85 American Journal of International Law (1991) pp.110-112. 5 Antony Anghie , The Evolution of International Law: Colonial and Postcolonial Realities, 27:5 Third World Quarterly (2006) pp. 739 – 753, at 740. 6 Id., at 741. 7 Id.

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My primary aim here is to expose the scientific determinism and historical reductionism ailing international law’s global administrative project via a discussion on the history and the non-Western systems of knowledge. The disciplines of sociology and philosophy have spent ample time deliberating on modernity. International law, however, has seldom engaged with a discourse on modernity. Today, on the one hand, international law is the language of instructing our collective global cultural, financial, political and social existence. On the other, science, modernity, secularism, progress, technology, liberalism, universalism, and humanitarianism are all those words that collectively define today’s civilisation and international legal thought.8 But this modern idea of a new world was first tried out in colonies by “wellmeaning, hard-working, middle class missionaries, liberals, modernists, and believers in science, equality and progress”.9 Why a concept that was born in Europe as a result of the Treaty of Westphalia of 1648 eventually became the sole tool to define the architecture of international law and the governance of non-Western states and its people? No wonder, the contemporary International law is preoccupied with the question of its scientificity that was a product of Europe’s post-Enlightenment modernity discourses.10 Epistemologically, the birth of disciplines like history, economics, sociology, and environmental science etc. from the very beginning set the terms of the discourse to the advantage of MILS. Globalisation is only supporting their new cause as the marginal systems of knowledge are vanishing even faster. International law, today, has to work out a balance between its capitalist sympathy and effects -- social, cultural and political -- of its investments in the underdeveloped countries and peoples. A reductionist application of International Economic Law, for example, often ignores the cultural cost of its compliance by the marginalised subaltern, tribal and infant sectors while legitimising a universal application of the principles of economics. International law is now the new language of contestation between science, non-science, development and backwardness, if seen from TWAIL perspective.11 Therefore, sections II, III, IV, V, VI and VII of this article discuss the historical, anthropological and psychological aspect of modernity and the application of science in colonial management. Its distinctive aspect is the use of Nandy’s psychological analysis with a tinge of Foucault. The interpretative doctrines of international investment law, for example, have witnessed a North-South fault and investment in the South still evokes scepticism.12 Nandy, supra note 2. Id. at vii. 10 American Society of International Law/European Society of International Law Joint Conference, Call for papers, Changing Futures? Science and International Law (Helsinki, 2009) at (last visited Aug. 24, 2009). 11 See, Ashis Nandy, Alternative Sciences: Creativity and Authenticity in Two Indian Scientists (2nd ed., New Delhi: OUP, 2001) p. 68. 12 M. Sornrajah, International Law on Foreign Investment Laws (2nd ed., Massachusetts: CUP, 2004). See, James Thuo Gathii, War’s Legacy in International Investment Law, 11:4 International Community Law Review (2009) pp. 353-386. 8

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Therefore, it would be a mistake to see international law as constituting an epistemological break from the way other disciplines shaped up in Europe. In an analytical fashion it discusses the role of history, science, modernity and progress vis-à-vis the East-West dichotomy. As a case study, section VII discusses the issue of tribal exploitation and late capitalism invading their privacy and tribal peoples’ loss of choice and cultural autonomy. It exposes the deficiency of international law in appreciating cultural, psychological and emotional aspect of liberalism and market materialism. International law, in the name of scientific objectivity, should not ignore the psychological and emotive aspects of its application. The jurisprudence of international human rights law actually comes from an acknowledgement of the emotive aspect of the non-mainstream subaltern peoples, in the West or in the East.13 Without such an understanding, international law would simply become a tool of dominance over the subaltern, the folk and the tribal peoples. This reality will be used throughout to see MILS and contest some of the accepted theses of modernity in the overall architecture of public international law.

II.

Public International Law: Between Constitutionalism, Fragmentation, Human Rights and Science

In the seventeenth century Europe, priests, whether Catholic or Protestant, were regularly compared in radical rhetoric with lawyers and doctors, as the manipulators of popular credulity and the vendors of magical formulae couched in incomprehensible terminology, mostly in Latin: the Jurists, the scientists and the theologians cross-fed each other’s ideas.14 An uncountable number of sociologist, political scientists, jurist, diplomats and ministers have helped in the theorisation of modernity that was to become the tool of interference into the non-European territories via colonisation. Christian Wolff (1679-1754) had attempted to present international law scientifically and later, Hans Kelsen drew similar conclusions.15 Austin (1790-1859) and Jellinek (1851-1911), however thought otherwise, as for them international law was too natural to be scientific.16 In 1940s, Hans Morgenthau and Raymond Aron became sceptic of the classic international law chiefly because of its behavioural aspect.17 Alvarez’s idealism distances itself from both naturalism and positivism of international law.18 No wonder early international law scholars were all theologians. Thus debating whether international legal scholarship may be qualified as science or not, constitutes a necessary assignment. Today this question has become the primary Oche Onazi, Towards a Subaltern Theory of Human Rights, 9:2 Global Jurist (Advances), Article 8 (2009) available at (last visited Nov. 6, 2009). 14 Israel, supra note 1, at 108. 15 See, Martti, Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (reissue, Massachusetts: CUP, 2005) pp. 108. All the early jurists like Grotius, Hobbes, Barbeyrac favoured natural law for application among states. Wolff, later, talked about two kinds of natural laws: immutable and modified. Vattel used morality for international as well. Thus by early 19th century international law had become a professional science. However, Kelsen in not uncontested, See, Jörg Kammerhofer, Kelsen – Which Kelsen? A Reapplication of the Pure Theory to International Law, 22:2 Leiden Journal of International Law (2009) pp. 225-249. 16 Id., at 125. 17 Id. at 197-200. 18 Id. 13

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occupation of the international lawyers and the legal theorists. Of all the disciplines, international law is definitely the youngest and thus borrows heavily from the rest of the disciplines. Those lender disciplines were sciences, natural or social: international law’s borrowings from economics and philosophy outweigh its imports from the other disciplines. International law, like other social sciences, was used in the colonies to manage modernisation, and industrialisation; a phenomena that has played a vital role in the development of its post-colonial and anti-modernist social consciousness worldwide.

A. International Economic Law and the new vocabulary of specialisation The Helsinki School of international law led by Martti Koskenniemi opines that the “[p]ublic international law hovers between cosmopolitan ethos and technical specialization”.19 Among other issues, trade and environment, the role of scientific evidence at the World Trade Organisation (WTO) under food safety measures and the role of economics in the decisions of the WTO have suddenly come to preoccupy international lawyers. It has been recently alleged that the use of experts’ power under international economic law at the WTO is often concealed by describing it in the register of scientific truths.20 Even the intellectual property rights (IPRs) of big the multinational companies protected by the trade related intellectual property rights (TRIPS) and the rights of the “other” i.e. non-mainstream peoples and cultures are arguably divorced.21 This discourse thus exposes the inherent contradiction latent in the global administrative project of international law that tries to create generalised solutions of world’s problems using “universalist” arguments of science. West has operated the political project of international law with an implicit assumption of it being a science. A challenge to its scientificity from the non-West thus contains the seeds of emotional, psychological, cultural and political discontent of the peoples of the “other world”. The repercussions of accepting science as a mass of desiccated objective knowledge, untrammelled by human emotions, can hand over marginalised world communities as hostage to the very emotions of which the dominant

Helsinki School of Thought can be distinguished led by Martti Koskenniemi and his fellow colleagues at Helsinki University, Finland. See, Martti Koskenniemi, The Fate of Public International Law: Between Technique and Politics, 70 Modern Law Review (2007) pp. 1-30, at 1. Also, Koskenniemi, The Lady Doth Protest too Much: Kosovo, and the Turn to Ethics in International Law, 65 Modern Law Review (2002) at 159. 20 See the scholarship emerging from Helsinki under Koskenniemi’s guidance as a reply to, Rosie Cooney & Andrew Lang, Taking Uncertainty Seriously: Adaptive Governance and International Trade, 18 European Journal of International Law 523 (2007); by Mónica García-Salmones, Taking Uncertainty Seriously: Adaptive Governance and International Trade: A Reply to Rosie Cooney and Andrew Lang (2009) 20 European Journal of International Law (2009) at 167. See the response, Andrew Lang and Rosie Cooney, Taking Uncertainty Seriously: Adaptive Governance and International Trade: A Rejoinder to Mónica García-Salmones, 20 European Journal of International Law (2009) at 187. 21 Rajshree Chandra, Intellectual Property Rights: Excluding Other Rights of Other People, xliv: 31 Economic & Political Weekly (2009) p. 86. Also see her, Rajshree Chandra, Knowledge as Property: Issues in the Moral Grounding of Intellectual Property rights (New Delhi: OUP, 2010, forthcoming). 19

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community prefers to remain ignorant.22 Today, international law, corrupted by science is held hostage to contesting and dissenting experts’ preferences. This has surfaced as the problem of fragmentation. International disputes of ‘trade and environment’, ‘security and human rights’, and ‘development and investment’ are collectively called jurisdictional conflicts. At the same time, notions such as ‘sustainable development’, ‘responsibility to protect’, or ‘human security’, among a host of others, “single out fragile compromises in areas where the struggle between opposing groups of experts and their preferences has not yet been taken to the end”.23 Thus at an epistemological level, public international law and international economic law, both, are encountering conflicts with modernity, progress, science, development, technology and fragmentation. The idioms of socialism, free market through laissez faire policy, late capitalism through Foreign Direct Investment (FDI) and protection of the subaltern and tribal life from capitalism is now the new preoccupation of international lawyers.24 A number of different international organizations and instruments engage the intersection of science, risk and law. These include the World Health Organization, the Conference of Parties of the Convention on Biological Diversity, the World Bank, and the World Trade Organization with its Agreement on the Application of Sanitary and Phytosanitary Measures (SPS). It also includes the jurisprudence that the WTO has spurred, such as the EC-Hormones and EC Biotech cases. Recent investment cases such as Canadian Cattlemen for Fair Trade v. United States, under NAFTA’s investment chapter suggest that these issues extend to international investment and perhaps other areas. Scholars have accordingly studied the relation of risk regulation, science, law and international governance from various disciplinary perspectives, including political science, economics, sociology, psychology, philosophy, and law.25

Thus international law as a construct is as psychological, sociological and political as it is legal. Therefore, reducing international law to simply a mechanism to advance functional objectives is vulnerable to criticisms raised by New Approaches to International Law (NAIL) -- as critique about law as an instrument for state policy. Neither regimes nor states have a fixed nature or self-evident objectives. They are the stories we tell about them.26 “The task for international lawyers”, Koskenniemi thus warns “is not to learn new managerial vocabularies but to use the language of international law to articulate the politics of critical universalism”.27 Nevertheless, the West has not only produced colonialism but also the critiques of colonisation in postNandy, supra note 11, at 18. Martti Koskenniemi, The Politics of International Law – 20 Years Later, 20 European Journal of International Law (2009) at 7,10. 24 See, Jalia Kangave, Taxing TWAIL: A Preliminary Inquiry into TWAIL’s Application to the Taxation of Foreign Direct Investment, 10.4 International Community Law Review (2008) p. 389. 25 Call for Papers, The International Economic Law Interest Group of the American Society of International Law: Risk, Science and Law in International Governance (Chicago-Kent College of Law, Chicago, IL, December 5, 2009). 26 Koskenniemi, supra note 19, at 1. Also, David Kennedy, Images of Religion in International Legal Theory in Mark Janis & Carolyn Evans (ed.) Religion and International Law in (The Hague: Martinus Nijhoff, 1999) pp. 145-54. 27 Id. 22

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modernist theories. Thus, in NAIL’s critical universalism we have an offered ‘interpretation of interpretations’ exposed by anti-modernism of Nandy.28 From a psychological vantage point, this is the difference – albeit not expressly mentioned as psychological --- between the critique of international law offered by NAIL and TWAIL, elaborately distinguished by B.S. Chimni.29 Latin American Calvo doctrine, for example, about the level of protection offered to the foreigners as not more than that offered to the nationals, met stiff opposition from new international investment law that likes Kantian cosmopolitanism way more. In a battle between Kant and Calvo, it was Kant who won finally. And why not? The world was witnessing another legal déjà vu – of Mare Liberum of Grotius (1609) winning over Mare clusiaum of Seldon (1635). Today, once again Kantian cosmopolitanism through constitutionalism is in vogue in the post-nationalist era. The European Union (EU) states are going back to Kant for a possible legitimisation of its international constitutionalism. Collins feels that if: [o]ne can trace a cosmopolitan or constitutional project to the influence of domestic public law from this time, one can also trace the inherent tension between international law’s promise of a substantive ‘good life’, or sense of justice, and its purported legitimacy in a commitment to a voluntarist, or contractarian, form of obligation. These simultaneous commitments seem incompatible, but are inseparable from international law’s embedded liberalism, which requires interplay between them to make sense of progress in the absence of any explicit underlying philosophy.30

The EU constitutionalism is not only asserting individuality in international law through human rights discourses but is now creating a privileged sphere of a EU international law that is sceptic of a public international law that often flows down from the United nations’ Security Council resolutions, most recently seen in the Kadi case.31 One can only hope that this new return of Kant is more justice-enhancing than in the past, and that this constitutional cosmopolitanism does not mandate the exploitation of the non-elite subaltern and tribal minority in the EU.32 In postcolonial thoughts however, the discourse of constitutionalism and human rights is an unfamiliar guest. Constitutionalism provides for structures, forms, and apparatuses of governance and modes of legitimation of power. But Upendra Baxi feels that the constitutionalism also provides for “contested sites for ideas and practices concerning justice, rights, development, and individual associational autonomy”.33 It provides the narratives of both rule and resistance.34 Nandy, supra note 2, at Preface vii. See, B.S. Chimni, Towards a Radical Third World Approach to International Law, 5 ICCLP Review (2002) pp. 14, 23. 30 Richard Collins, Constitutionalism as Liberal-Juridical Consciousness: Echoes from International Law’s Past, 22: 2 Leiden Journal of International Law, (2009), pp. 251-287. 31 Peter Fromuth, The European Court of Justice Kadi Decision and the Future of UN Counterterrorism Sanctions, 13:20 American Society of International Law (ASIL) Insight (2009) available at (last visited Nov. 7, 2009). 32 See, Prabhakar Singh, Indian International law: From a Colonised Apologiats to a Subaltern Protagonist, 23:1 Leiden Journal of International Law (2010) pp. 79-103. 33 Upendra Baxi, Postcolonial Legality, in Henry Schwarz & Sangeeta Ray (eds) A Companion to Postcolonial Studies (Oxford: Blackwell Publishing, 2000), at 540. 34 Id. 28

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Therefore, from the constitutionalism debate, MILS hooked up with the “rule” aspect while TWAIL choose the discursive narrative of “resistance”. III.

International Law: Determinism and Loss of Compassion Scientific

Reductionism,

Drunk with the vision of liberty, restless minds fumbled with wisps of socialism and anarchism, positivism and the religion of humanity, Ethical Culture, and a medley of social ideals that promised the key to the universe … [In New York, the intellectual Jews displaced from East Europe] … turned to German sources of inspiration. They identified European civilisation and the advances of modern society with German culture, and accepted Karl Marx, modern Germany’s greatest prophet and his disciples as his own35

International law, to a large extent, is a discussion about the history of Europe excluding all of Asia, Africa and the Latin America. With no better word acceptable to both MILS and TWAIL, this discipline about past may be called history. A discourse on history, modernity, and culture is thus necessary before we move on to the issue of science in international law as scientific knowledge is provisional and “subject to review in the light of new information.36” Thus it is not definitive or final.37 Global South has developed radial critiques of science and modernity, and for a non-reductionist view of international law we must engage with it. Western science has always projected history as a linear narrative of development to modernity. This discourse of science and modernity in the occidental discipline of history comes from the so-called Enlightenment of the Renaissance. Unfortunately, international law has not been able to dislodge the scepticism attached to science in the non-Western worlds. Therefore, the Renaissance appears as a scandal to the global South; demand for an ‘unequal treatment’ for unequal peoples as true application of distributive justice is a logical offshoot of such a thought. Consequently science and modernity, which are attached with development, have received a cold welcome in former colonies that are now independent but weak sovereign states controlled by the forces of absentee colonialism.38 International law has been busy building its technical vocabulary that is often used for advocacy at such fora as the International Court of Justice (the ICJ), the WTO, the International Tribunal for the Law of the Sea (ITLOS) and the International Centre for Settlement of Investment Disputes (ICSID). Nonetheless, in spite of its functional and technical differences in application, identified as its fragmentation, they are all guided by the Vienna

Moses Rischin, The Promised City: New York Jews, 1870-1924 (New York: Harper Torchbooks 1970) p. 150. (Emphasis added). 36 García-Salmones, supra note 20, at 168 37 Id. 38 See, Prabhakar Singh, From Narcissistic Positive International law to Natural Universal International Law: The Dialectics of Absentee Colonialism 16 African Journal of International & Comparative Law (2008) pp. 56-82.

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Conventional on the Law of Treaties (VCLT) for its interpretations.39 VCLT’s article 31.3 (c) is a link between international law and other non-legal, cultural, historical and political aspects.40 This, however, constitutes an uphill task for the “other” who has to first accept the infrastructure of the discipline before considered worthy of engagement. And then there is the civilised and the uncivilised divide, explicitly expressed in the Statute establishing the ICJ, which has historically been instrumental in legitimising the priorities of cultures and sociology of international law.41 TWAIL exposes this as the problem of “politics of knowledge creation” as natural and social sciences; both, came to the rest of the world from the post-renaissance Europe.42 Using the articles 31.3 (c) of the VCLT and 38 (c) and (d) of the statute establishing the ICJ, a large body of oriental knowledge, deemed outside the scope of civilised states’ international law, can be included, absolving public international law of its scientific sin. Sympathising with the victims of modernity and science, who fall outside the periphery of “civilised world”, I shall, thus, “offset myth against science” and the history of international law.43

IV.

The Myth of History and Progress: Is modernity Linear or circular?

The importance of history while interpreting international treaties expressed in the French maxim “travaux préparatoires” is quite obvious.44 But how far can one dig up the past for interpretations? Often the powerful set the rules of the “interpretation game.” Since in the West, the past and history, both, tread a linear path of growth, there is an automatic check on how far one goes back, under the interpretative limits of law, to excavate the truth of history? As the discipline of history was created to legitimise the linear narration of progress and modernism, this linearity remains a Western truth. The oriental history is arguably circular.45 Arjun Appadurai’s seminal discourse on modernity reveals modernity’s ability to create five kinds of pasts; history

M. Koskenniemi (ed), Fragmentation of International Law. Problems caused by the Diversification and Expansion of International law, Report of the Study Group of the International Law Commission, A/CN4/L.682 (13 April 2006) (Analytical Report). 40 Panos Merkouris, Debating the Ouroboros of International Law: The Drafting History of Article 31(3)(c) 9 International Community Law Review(2007) pp. 1-31. Also, The ICJ, ‘Oil Platforms Case’, Reports 2003, 161, para. 41; The Court applied article 31 (3) (c) of the VCLT. For a comprehensive recent discussion, see C. McLachlan, ‘The Principle of Systemic Integration and Article 31 (3) (c) of the Vienna Convention, 54 International & Comparative Law Quarterly (2005) 279. 41 See, Article 38 (c); ‘The general principles of law recognized by civilized nations’ available at (visited Aug. 25, 2009). 42 See the literature on TWAIL in leading international law journals, Makau Mutua, What is TWAIL? 94 American Society of International Law Proceedings (2000) pp. 31-39; B.S.Chimni, Third World Approaches to International Law: A Manifesto, 8:1 International Community Law Review, (2006) pp. 3-27, Obiora Chinedu Okafor, Critical Third World Approaches to International Law (TWAIL): Theory, Methodology, or Both? 10:4 International Community Law Review (2008), pp. 371-378. 43 See, Nandy, supra note 2, at viii. 44 However, the reason why the terms “drafting history” or “debates” were selected over “travaux préparatoires” of Article 31(3)(c) was that the examination in this article covers fora and documents that would be debatable whether they constitute preparatory work in the sense of Article 32 of the VCLT; See, Merkouris, supra note 40, at 3. 45 Nandy, supra note 2, at preface. 39

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being just one of them.46 Other four types are tradition, evolution, antiquity and civilisation.47 Customary international law and the five kinds of pasts seem to align themselves with a common epistemology. India, for example, as Ashis Nandy remarks, “has many pasts; depending upon the needs of each age, the nation brings a particular past into its consciousness”.48 In India and other third world countries such philosophical ideas have often been used in the domestic courts to solve local cultural, religious and social disputes. But such idioms, originating in the East, are often limited in appeal to the international community whereas the Western idioms expressed in Latin, French and German maxims have been made fairly international first through colonisation and then through advocacy, scholarship, and the politics of knowledge creation. Such expressions and maxims carry with them their cultural baggage that when planted in foreign cultures diversify options and solutions. But, TWAIL is often compelled to ask as to why this has been a one-way traffic? Even when the globalisation is breaking down barriers, legality of knowledge construction has virtuously stuck to its Western fidelity as if accepting the “other” is a betrayal. Knowledge, we have to accept, is not a singular unit of global wisdom but a category constructed with a fair bit of snobbery, elitism, discrimination, Eurocentricism and anti-Orientalism. The rejection of mythology is its immediate effect. Two intellectuals of contemporary times from the “other” world, Appadurai and Nandy, thus agree that mythology unlike history is a non-linear Oriental narration of culture, philosophy, progress and past. The ICJ while discussing a very serious environmental and security issue facing the world sought the help of Indian mythology and pre-science for solutions.49 Very often these days third world polluters like China and India use arguments of past, colonisation and progress to legitimise environmental pollutions whereas the United States of America and the EU countries continue to use carbon trading to sell pollution for credits using deterministic scientific logics.50 The logics of science, it seems, are being put to various uses, often contradictory, by different cultures and economies that have vastly different national and domestic priorities. One is thus forced to ponder whether like human beings Arjun Appadurai, Modernity at Large: Cultural Dimensions of Globalization (1996). Also see a very relevant text, Patricia Cotti, Freud And History Before 1905: From Defending To Questioning The Theory Of A Glorious Past, 10.1 Psychoanalysis & History (2008) pp. 3-19. 47 Steney Shami, Prehistories of Globalisation: Circassian Identity in motion, in Arjun Appadurai (ed.) Globalisation (Duke Univ. Press, 2001) pp. 220, 221. 48 Ashis Nandy, Politics of Cultures in India in, Exiled at Home: At the Edge of Psychology, supra note 2, at 47-48. 49 Dissenting Opinion of Judge C.G. Weeramantry, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226 (July 8) at (last visited Aug. 24, 2009). 50 The European commission has announced an overhaul of the EU’s Value Added Tax (VAT) system in its latest attempt to prevent its much-vaunted “carbon trading” system being riddled by multimillion-pound fraud. Criminals who for years had been ripping off VAT from finance ministries around the EU on the trade of items have recently moved in on Europe’s €90bn (£81bn) carbon market. See, Ashley Seager, Brussels targets carbon trading fraud ahead of Copenhagen summit, The Guardian, Sept. 29, 2009, available at (visited on Sept. 29, 2009). 46

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even cultures are hypocrite while applying science? Is science simply a bundle of justification used by the powerful to legitimise its economic, security and cultural priorities? A. History as Mythology and the Myth of Science: Pre-Science and Indigenous Knowledge Systems The Western rejection of Indian mythology as a narration of superstition is a blatant disregard of oriental history telling.51 A major difference between India and the West regarding recording history is that in latter, history was written whereas in the former it was told, memorised and therefore, mythologized. Bringing the insights of botany, zoology and Darshan (philosophy) together, Jha and Tiwari have made certain pre-scientific observations in ancient Indian philosophy. Elaborately expressed in pristine Sanskrit maxim, laukik nyaya sutras (idioms of earthly, material, and practical justice), these are specimens of a cordial cohabitation of both natural and social sciences in Indian philosophical mythology.52 But the West has never credited the non-West of possessing scientific knowledge; definition of science and history itself is a Western construct. Their linear bias in the narrative of progress dismisses oriental writing as mythology whereas, to the utter dismay of the West, both science and art co-exist therein. The history of Indian subcontinent began at a time when history had not developed as a discipline in the Western academic sense. One of the prominent revolutionaries of our times, Mahatma Gandhi (1869-1948), refused history to embrace mythology. This does not render Gandhi ineffective. He rejected a chronicled past in his self-styled resistance to colonialism. History, as he saw, was a narration of the elites of both, the West and the East. His mythology gave history to women, the subaltern and the tribal cultures which constitute the majority of oriental population, mostly unrecorded in history. It is only now that we have begun to assign rights to the tribal people under international law; however, they are far from getting justice. History has not been able to save them; mythology can. History unfortunately, reduces people and incidents to data and statistics whereas mythology sees them as lucid and emotional entity capable of establishing dialogues unrecorded in history. History neutralises any emotion that may be associated with the non-dominant actors like the folk, the tribal and the subaltern.53 Ashis Nandy reminds us that Gandhi, for example, “[n]ever cared for chronologies of past events”.54 “History to him was a contemporary myth which had to be interpreted and reinterpreted in terms

51 Superstitions and sub-cultural semiotics of rural existence is a global reality rather than only an Asian or African phenomenon. Europe was as superstitious as any other culture in the world. See, Bernd Roeck, The Enchantment of the Alien: Metaphysics and Marginality in Late Medieval and Early Modern Europe, 7 Medieval History Journal (2004) pp. 39-57. 52 See, Vidyanath Jha & D.N.Tiwari, Certain Scientific Observations as depicted in Indian Philosophical Principles, 2 Indian Journal of Traditional Knowledge (2003) pp. 170-180. 53 Nandy, supra note 11, at 6. 54 Nandy, The Politics of assassination of Gandhi, in supra note 2, at 83

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of contemporary needs”.55 Gandhi’s mythological devices of ahimsa (nonviolence) and satyagrah (truthful request) are not only the most original of the devices of international relations for cultural defence invented in the twentieth century, but they prove beyond doubt, the relevance of mythology over history and science. This Gandhian discovery is awaiting an appreciation by MILS.56 In fact, Gandhi first “tested his indigenous tools in a foreign laboratory to eventually use it in India”.57 As we can, now, see there can definitely emerge a “Gandhian cosmopolitanism” as he himself was an accommodative revolutionary. The success of Gandhi and the failure of Subhas Chandra Bose while seeking the same end i.e. liberation of India, can be attributed to the ability of Gandhi to create a political tool out of India’s memories and to what Habermas agrees as “future oriented memories”.58 Bose wanted to use force, history and science (in a way similar to Hitler) and therefore, failed whereas Gandhi used ideas, non-violence and myth to successfully free India.59 Thus, it was Gandhi who taught the world the importance of treading alternative paths which helped people like Martin Luther and Nelsen Mandela to discard history for myth in their struggle against apartheid. History is, arguably, always constructed by the elites whereas mythology always exists, albeit in the imaginations of the non-elites and texts that are called religious and superstitious. Gandhi demonstrated that those who seek liberation and freedom must learn that “history can sometimes be made to follow from myths”.60 In a way India fashioned, in Gandhi, the discourse of science versus mythology. The concepts of non-alignment, internationalism and federalism in the Indian constitution and foreign policy have been attributed to a series of Indian thinkers like Rabindranath Tagore, Sri Aurobindo and Jawaharlal Nehru, among others.61 A Gandhian conception of international humanitarian law that tries to make same experiments with truth that Gandhi himself successfully made can definitely enrich the vocabulary of justice particularly for the women, the folk peoples, the tribal population and the subalterners.62 They have been a victim of history and international law both, and thus any law, domestic or international, that tries to emancipate them all, must draw insights from mythology otherwise their emancipation will continue to remain a myth. .

Id. Alakh Niranjan Singh & Prabhakar Singh, What Can International Law Learn from Indian Mythology, Hinduism and History? 2 Journal of East Asia & International Law (2009), pp. 239, at 241. 57 Id., at 241. 58 Jürgen Habermas, Moral Development and Ego Identity, in Thomas McCarthy (ed.) Communication and the Evolution of Society (London: Heinemann, 1979), pp. 69-94. 59 For a detailed discussion on semiotics of myth, history and modernity vis-à-vis international law see, Prabhakar Singh, The Madness of Art, Modernity and International law in the East-West Telos, 23 International Journal for Semiotics of Law (2010 forthcoming). 60 Nandy, supra note 2, at 63. 61 See, Ashis Nandy, The Illegitimacy of Nationalism: Rabindranath Tagore and the Politics of Self (4th impression, New Delhi: OUP, 2000) pp. 4, 5. 62 M.K. Gandhi, My Experiments with Truth (Mahadev Desai tr., Ahmadabad: Navjeevan, 1948). 55

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B. Indigenous International Law and the Political Theory of the Pre-Scientific “Others” The 2009 Asian Society of International Law (ASIL) conference in Tokyo was pivoted around the question whether there is an Asian way of thinking? B.S. Chimni has been leading the pack of alternative voices as he elaborately explores such possibilities.63 Such concerns have come up as the central agenda of both the ASIL and the foundation for development of international law in Asia (DILA) established in 2007.64 They are marked by the publications of new journals where the approach to international law is markedly Asian. This Asian enquiry has been very fruitful in bridging mythology, history and law.65 Pratap Bhanu Mehta very emphatically explains as a case in point, how a mythological India came to acquire a ‘sudden history’ in Western cliché after the discovery of palm leaf manuscript of Kautilya’s Arthasastra and its English translation in 1909. The Arthasastra is rooted partially in myth and partially in pre-science and yet … [this] text became a focal point with which to contest every cliché that had been used to define India. A society that allegedly never had a rational state suddenly acquired one; a society defined by a dreamy moralism suddenly acquired a narrative of steely realism; a society without a history of political thought acquired a master text in political theory; a society without sophisticated economic thinking acquired insight into the foundations of wealth; a society without a strategic culture acquired a veritable theory of international relations; a nation with ostensibly no political identity acquired a prehistory of political unity.66

Even Max Weber thought that Kautilya’s Arthasastra was one of the greatest political books of the ancient world. In his famous lecture “Politics as a Vocation,” Weber said that Arthasastra, written long before the birth of Christ, is ‘radical Machiavellianism’ in the popular sense of the term.67 Compared to it, Machiavelli’s The Prince is harmless.68 It is also an accepted fact, today, that not only paper and gunpowder were first invented in China -the epitome of oriental wealth and might -- but it organised first bureaucratic administration in the world selected not through feudal nepotism but through civil services examinations.69 Yet China, like India, remained a primitive society for the colonisers. This makes an interesting observation: Voltaire thought that China was perhaps the most advanced culture of the World!70 63 See, B. S. Chimni, Draft: Is There an Asian Approach to International Law?, Presented at ASIL Tokyo Conference (2009) at (last visited Sept. 10, 2009). 64 DILA: The Foundation for development of international law in Asia, available at (last visited on Sept. 10, 2009). 65 See generally, Singh & Singh, supra note 56. 66 Pratap Bhanu Mehta, Century of Forgetting, The Indian Express 15 (Patna 15 June 2009). 67 See, Roger Boesche, Kautilya’s “Arthaśāstra” on War and Diplomacy in Ancient India, 67:1 Journal of Military History, (2003) pp. 9-37, at 9. 68 See, Id. 69 See, Chun-chieh Huang, On the Relationship between Interpretations of the Confucian Classics and Political Power in East Asia: An Inquiry Focusing upon the Analects and Mencius,11.2 Medieval History Journal (2008) pp. 101-121. 70 Nandy, supra note 2, at 6, footnote no. 8. A central challenge for the western Enlightenment as a whole in the eighteenth century was the question of how to classify ‘the other’. Efforts were made by the

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But plans for colonisation found Voltaire’s beliefs as hindering colonial expansion and exploitation.71 Thus in a larger design for colonisation, the rejection of Europe’s pre-modern conceptualisation of the East and its reincorporation into European consciousness according to needs of colonisation became a necessity.72 Thus, for the West to be called modern, the East had to be made backward. A dichotomy was therefore, produced where a manufactured cultural, social, financial and political primitiveness of the East had to be removed with the panacea of Western modernity through industrialisation. This discourse on pre-science and mythology has the potential to tarnish some of the figures of the Enlightenment. The secular international law, today, has the burden of dislodging this dichotomy inherent in its application. Asiatic endeavours to preserve history were mythological and pre-scientific in nature. This makes all these Indian and Chinese sources not fit for use by international law as sources. Thus, this is a problem of accommodation and appreciation. History, I contend, does not have to be a linear story of growth and modernisation but it can be an alternative chronicle of salient oriental forms of recording past, e.g. circular progress as archived in over thousand books on what we today know as Hindu mythology and Chinese wisdom.73 In a semantic antagonism today, all that is history in the East is mythology to the West and all that is history to the West is a myth to the East. Mythology in my view is nothing but fossilised history.74 This fossilised knowledge needs an appreciation by MILS to ensure that legality of international norm does reflect the semiotics of subcultures. The sub-cultural and the tribal realities of human existence have been the most ignored aspect of international law, thanks to history. The savages, after all, do not have rights. Thus, globalisation should neither mandate a one-way traffic of ideas, images and solutions nor should it promote a naïve synthesis of Western thesis and Eastern antithesis. An attempt to manufacture universal homogeneity does not necessarily lead to a homogeneous synthesis of norms of various cultures under international law. The encounters of norms from the ancient times to

Europeans to reach general assessments of Islamic, Indian, and Chinese thought. But as so often in cases of attempts at cross-cultural evaluation the result was curiously self-centred and limited; See, Israel, supra note 1, at 640. 71 See, Israel, supra note 1, at 657-60 72 Western philosophers strove valiantly to grasp the fundamentals of classical Chinese philosophy but ended up, in the main, merely mirroring their own prior obsessions. The Radical Enlightenment’s enthusiasm for what it took to be classical Chinese thought originated during the third quarter of the seventeenth century, among a small but remarkable group of libertine Deist neo-Epicureans. The first esprit fort, or ‘suspected atheist’, Reimmann calls him, to hit on the idea of using Chinese culture as a subversive strategy within western intellectual debate, apparently, was Isaac Vossius (1618–89), who deployed the evidence of Chinese antiquity and the ancient character of their philosophy during the late 1650s as part of his campaign to sap confidence in biblical chronology and notions of prisca theologia as well as the centrality of revelation. See, Id. 73 Singh & Singh, supra note 56. 74 See for a powerful discourse on the science of mythology, C. G. Jung & C. Kerényi, Essays on a Science of Mythology: The Myth of the Divine Child and the Mysteries of Eleusis (2nd Ed. London & New York: Routledge, 2001). Scholars have rejected the theory of evolution has a mythology of science, See, Bert Thompson, The Mythology of Science: Spontaneous Generation, in Brad Harrub & Bert Thompson (eds.) Truth About Human Origin (Montgomery: Apologetics Press, 2003).

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the ones of contemporary origin are generating afresh set of questions and tensions seen in the wake of globalisation.75

V.

The Birth of Disciplines and the advent of Modernity: Natural and Social Sciences

In the eighteenth century, the image of the medieval past of Europe changed dramatically; from a negative to positive one.76 An increasing knowledge of the non-European cultures and their commercial development led to a reconstruction of history as an interactive process of civilisation. Therefore, the middle ages could no longer be dismissed as a barbaric interval between Rome and the Renaissance.77 Historian, such as Voltaire, although he never liked the Middle Ages, saw it as a time of commercial growth and the rise of the bourgeoisie. [G]erman philosophers, such as Herder, developed a notion that all cultures were equal and unique: therefore, medieval culture had to be considered on its own merits, despite its barbaric character … from 1750 onwards the Middle Ages were seen as integral to the European past, though not much liked. It was the romantic era that represented the medieval past as the height of civilisation.78

The birth of modern disciplines is undoubtedly a post-enlightenment Western phenomenon. Western translations of its disenchantments with its own life into theories of natural and social science has been possible by the birth of various disciplines including avant garde modern art.79 The new question is; how close are Anthropology, Sociology and Psychology as the disciplines of knowledge? What is the role of racism in the construction of knowledge? Whereas disciplines like biology and immunology played a significant role in materialising colonial conquest, psychology of Freud, mathematics, and postWorld War I genetics gave a theoretical support for conquest. Immunology, a pure science, was a product of colonisation and not of the Catholic concerns of serving and nursing the diseased. Newton’s laws in physics, particularly, the one theorising every action having equal and opposite reaction is not different from the Buddhist “act-pay” theological formulation of Karma – what one discards as mythology comes back to haunt as history. In Europe, Newtonianism entailed a “full-scale revolution, not only in physics and astronomy but also philosophy, religion, and all erudite endeavour, his acolytes attributing their idol’s unparalleled accomplishment to his scrupulously inductive method and aversion to that unfortunate ‘love of systems’ deemed to have ruined Descartes, Spinoza, Malebranche, and Leibniz”.80 Thus, Western science had not denounced intuition completely as 75 See, Monica Juneja, Malabarian Dialogues: The Encounter between German Pietists and the Tamilian Populace during the Early Eighteenth Century, 5.2 Medieval History Journal 333-346 (2002). 76 Peter Raedts, Representations of the Middle Ages in Enlightenment Historiography, 5.1 Medieval History Journal (2002) pp. 1-20. 77 Id. 78 Id. 79 Eric Hobsbawm, The Age of Empire 1875-1914, (12th reprint, London: Abacus, 2002), at 231. 80 Israel, supra note 1, at 201.

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modernists like to believe. It merely digested and reproduced the knowledge of mythology, both Western and non- Western, into a new discipline of history.81 Therefore, such disciplines as biology, politics, and ideology cannot be kept apart, says Hobsbawm, for their links are too obvious.82 Both sciences, irrespective of their area of investigation, were rooted in the same epistemology. They were harnessed and funded by the disenchanted industrialised bourgeois for colonial conquests. This also explains a relatively deeper penetration of the sciences into colonies as compared to arts. Art, therefore, was limited to the Westernised colonised: a breed of third world aristocracy that sought to align its history with the feudal history of Europe, an act of identification with the aggressor, as Nandy puts it.83 It was this history that Gandhi rejected for a folk, subaltern and tribal mythology.84 Shadows of racial assimilatory sentiments can be found in the scholarship of J. W. Jackson whose anthropology tried to link a selected group of South Asians like the upper caste in India, Pakistan and Iran with the Europeans with his racial theory of Aryans. Unfortunately, the Negroid race for him remained a race lacking enough “nervous force for their effective development into human form”.85 The anthropological findings of Jackson when evaluated against Hobsbawm’s findings on social Darwinism clearly blur the distinction of Sciences, natural and social: A substantial part of the impetus for the development of bacteriology and immunology was a function of imperialism86 … biology was essential to a theoretically egalitarian bourgeois ideology, since it passed the blame of visible human inequalities from society to nature … hence biology was not only potentially the science of the political right, but the science of those who suspected science, reason and progress 87… [Nietzsche’s The Will to Power is a …] variant of Social Darwinism, a discourse conducted in the language of ‘natural selection’ in this instance to produce a new race of ‘superman’ who will dominate human inferiors as man in nature dominates and exploits brute creation.88

Thus, anthropology; a study of the primitive societies, and sociology; a study of the modern ones, were both born with an implicit conception of superior and inferior humans. Early international law reflected such sentiments. Foucault tells us that for the seventeenth century Europeans, madness signified hidden primitivism of men in delirium.89 The only prescribed cure R.P.Anand, Maritime Practice in South East Asia until 1600 AD and Modern Law of the Sea, 30 International & Comparative Law Quarterly (1981) pp. 440-454. 82 Hobsbawm, supra note 79, at 256. 83 Nandy, supra note 2, at 7. 84 Id. 85 J. W. Jackson, The Aryan and the Semite, 7:27 Anthropological Review 333-365 (1869). Also, G.C. Spivak, Race before Racism: The Disappearance of the American, 25.2 Boundary 35-53(1998). 86 Hobsbawm, Supra note 79, at 251 87 Id. at 252. 88 Id. at 253 89 Michel Foucault, Madness and Civilization: A History of Insanity in the Age of Reason (Richard Howard (tr.), 1st Indian Reprint, Chennai: Routledge, 2003) pp. 183-84. See an interesting discussion on differentiation between the true Christ and satanic Doppelgängers and impostors; Valentin Groebner, The Sight of Blood: Christ as a Delinquent in the Late Middle Ages, 3.2 Medieval History Journal (2000) pp. 81

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for madness was labourhood.90 Psychologist alone could understand what transpired in the minds of madmen. Psychology developed, scientifically, the expertise to converse with a man in delirium. Thus from primitivism to madness to labourhood, the disciplines travelled from anthropology to psychology to sociology. The study of Africa was consigned to anthropology whereas Europe and to an extent, Middle East and South Asia were assigned to sociology. The very birth of these social sciences harboured a perception of humans on racial narratives of the primitive and the modern, the progressive and the backward, the Negroid and the Aryans, the Catholics and the Protestants, and the enlightened and the disenchanted. International law as product of an interdisciplinarity of other disciplines is thus understandably devoid of concern for the coloured, the tribal and the ahistorical. The task at hand now is to admit its lacunae and work towards a solution which is, by any standard of problem solving, herculean. A. The Suspect Objectivity and Loss of Emotions: Utilitarian International Law as Capitalist Avarice Jackson’s formulations are further complemented by the works of W. E. Clark who thought that India had a great tradition of philosophy but few historians. Indian works were so mixed with fables that they proved to be unworthy guides.91 Nandy’s answer to such positive reading of Indian mythology is illuminating. He maintains that “both the science of myth and the scientific status of the myth continue to be a predominantly modern concern”.92 This affirmation of “ahistoricity is an affirmation of the dignity and the autonomy of non-modern people”.93 Thus mythology, mostly preserved in the imagination of the non-modern cultures, majority of which was folk, subaltern, tribal and the in-house but right-less women, could not be offered as a hand-me-down history to the non-West. For the colonisation of both mind and territory, mythology had to be flushed out of the memory and imagination of the non-modern peoples. Such blank minds would then be ready for a hand-me-down history programmed to carry out modernisation via linear modernity. The suspect objectivity of international legal science and its absence of sympathy for the non-modern peoples for colonisers’ own administrative convenience are thus an offshoot of the legitimisation of the colonisation project. Only history mandates revolutions. Modernisation through territorial acquisitions and the burden of civilisation were “revolutionary” ideas unlike in the Indian mythology where the past, the present and the future were not disjointed and thus a radical revolution was not necessary.94 Therefore, diverse peoples and distant civilisations could converse without a tendency of 223-233. See, Barry Smart, Review, 39.3 Journal of History & Philosophy (2001) pp. 458-458 (reviewing Philip Barker, Michel Foucault: An Introduction (1998). 90 Foucault, Id., at 184. 91 Walter Eugene Clark, The Importance of Hellenism from the Point of View of Indic-Philology, 14:4 Classical Philology (1919) pp. 297-313. 92 Nandy, supra note 2, at 59. 93 Id. 94 Id.

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territorial and cultural conquest making the idea of “revolution” unnecessary. A rejection of mythology thus converges with the demise of medievalism and birth of disciplines after renaissance.95 After all, only a linear conceptualisation of a narcissistic narrative of progress could promote colonisation and conquest.96 The Western expression of its linear chronology of growth subsequently rejected the circular narratives of Indian historiography hidden in its mythology. Piyel Haldar remarks that: By the 19th century, missionary and utilitarian agendas had denounced the use, and even the scholarship, of Orientalism as unprofitable and corrupt. The conservative view was that the Orient was inextricably linked to forms of illicit activities, and excess pleasure. Its association with the violence of despotism meant that Orientalism had to be extricated from the question of Imperial government.97

Utilitarianism, even today, “retains that conceptual antagonism to an imagined Orient in which excess transgresses codes of civility”.98 “An analysis of Bentham’s philosophy shows that the conceptual enemies of Utilitarianism were fantasized as being of Oriental import”.99 Utilitarianism nonetheless “fails to account for the manner in which subjects are held in thrall and obey a particular system if that system is based simply on the mundanities of efficiency and pragmatism”.100 Today, support to such anti-utilitarian scholarships is echoed in the scholarship of TWAIL. Indian historian Romila Thapar refutes the Aryan theory advanced by Max Mueller who was employed by the East India Company to manufacture the official history of India. Naturally, it was more of a conciliatory literature for the administrative convenience of the British administrators. The much emphasized Aryan-Dasyu divide in India, according to Thapar, is not a racial bifurcation but a semantic denominator of guna or qualities.101 Such racial scholarships were only used to sow the seeds of disunity to divide and rule colonies by claiming to offer secular models. B. Archaeology & Architecture: Advent of Science, Changing Relations of Market, Aesthetics and Productivity Max Weber has explained that for the progressive Protestants, enlightenment became disenchantment.102 This, in the chronology of disillusions, was the first disenchantment. Eric Hobsbawm says that the years preceding the First World War was a time when the disciplines in Europe offered a promise to the mankind of emancipation and truth while Id. See generally, Singh, supra note 38. 97 Piyel Haldar, Utilitarianism and the Painful Orient, 16 Social & Legal Studies (2007), pp. 573, at 574. 98 Id. at 588. 99 Id. Nandy categorically explains that unlike utilitarians and the Marxists, Freud’s early disciples did not clearly identify primitivism and infantility with disvalues like structural simplicity and static history. See, Nandy, supra note 2. 100 Id. 101 Romila Thapar, Ancient Indian Social History: Some Interpretations (Hyderabad: Orient Longman, 1978). 102 Max Weber, Protestant Ethic and the Spirit of Capitalism (New York: Charles Scribner’s Sons, 1958). 95

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rejecting appeals to intuition and the authority of the Church. One of the crucial attractions of Marxism over other brands of socialism, Hobsbawm identifies, was precisely that it was a “scientific socialism”.103 Darwin and Gutenberg, inventor of the printing press, were as honoured among radicals and social democrats as Tom Paine and Marx.104 Galileo’s ‘And still it Moves’ was persistently quoted in social rhetoric to indicate the inevitable triumph of the workers’ cause. 105 This Science then progressed with an imagined animosity with so-called primitiveness and irrationality of the Orient. The pre-scientific reason, the rationality, the conceptions of beauty and the aesthetics of the non-Western civilisations collectively constituted an antithesis to this new science. But this novel science fails to appreciate that every culture produces its own science like each scientific achievement produces new cultural realities.106 C. Birth of Science and Celebration of Modernity: How biased has Science been? Science at the time of its birth killed pre-science. Thereafter, there has been an element of bias in the application, if not the production of scientific knowledge.107 Henry Staten is of the view that “the object of scientific knowledge has always been conceived as nature … and the appeal to the scientific explanation of nature has been the basis of the historical polemic against idealisms, mysticisms, supernaturalisms, and spiritisms of all sorts”.108 Derrida accorded great importance to what Freud had called the three great ‘narcissistic wounds’ inflicted by science on human vanity. The first two were associated with the names of Copernicus and Darwin, but the greatest of the three wounds was inflicted [by Freud as] psychoanalysis, the ‘science’ he himself had invented…Derrida returned to the notion of the three great narcissistic wounds twenty years later, in Specters of Marx; but this time he added the name of Marx to the list109

One would think that the science freed people of certain biases like the racial discrimination and promoted equality and truth; say, astronomy of Galileo. But the scientific discoveries were financed by the same disenchanted Protestants for whom Freud was true because he had lessened their guilt by accusing the sub-conscious. The intellectual structuring of bourgeois Protestants’ world had to eliminate the ancient of the non-West. Therefore, constructing a linear history was necessary. Some observers see a radical epistemological break between Marx’s humanist ideology written before The

Hobsbawm, supra note 79, at 263. Id. 105 Id. 106 Nandy, supra note 11, at 17. 107 Henry Staten, Derrida, Dennett, and the Ethico-Political Project of Naturalism, 1 Derrida Today 19-41 (2008). 108 Id., at 20. 109 Id. 25. 103

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German Ideology and the anti-humanist science written after it.110 Industrialisation thus critically altered the worldview in favour of scientificity.

VI.

Modernity Discourse in Indian and Western Sociology: Enlightenment as Disenchantment

According to Indian sociologist Yogendra Singh, the intellectual nihilism implicit in the works of post modernists like Foucault, Lacan, and Derrida is a manifestation of a double disenchantment.111 According to him “a life-world of a society is constituted by a set of elements drawn from history and from the existential determinants of the human situation”.112 This second disenchantment of Europe, after its first disenchantment with religiosity, Singh thinks, links history with mythology.113 Science has been a work of demythologisation leading to the advent of modernity.114 But to add a word of caution, this is a European construction of history. In Asia and elsewhere mythology continued to be a guiding force in the cultural sub-consciousness of community existence. Nonetheless, in the Indian context, borrowings from the West continued, “but it had to be done covertly and only when it could be justified as a resurrection of India’s past”.115 A. Corporate Social Responsibility (CSR), Privatisation and Investment Today’s corporate culture, for example, is a manifestation of modernity with its protestant ethics; observed more in private sectors in comparison to government departments. The reasons are largely clear. A private industry works with the sole motive of profiteering and wealth generation. Its progress is measured by its balance sheet. The agenda of a welfare government whose departments do not work with the incentive of profiteering, however, is markedly different from that of the private capitalists. Chimni calls this process as an imperial global state in the making.116 The concern, therefore, in the third world is now about the cultural aspects of hybrid ventures where both the government and the private capitalist come together. Such an activity is bound to have porous effects. It can privatise the government culture and “welfarise” private corporate governance while developing what is today called the corporate social responsibility (CSR). However, to the misfortune of the large third world population, it is the privatisation of government that is more dominant than the development of CSR. Partha Chatterjee observes that the mark of non-Western modernity has been an 110 Edward Andrew, Marx’s Theory of Classes: Science and Ideology, 8 Revue canadienne de science politique (1975) pp. 454, 454. 111 Yogendra Singh, A Life-World of Disenchantment: Modernity, Ethnicity and Pluralism, 47 Sociological Bulletin, (1998) pp. 155-65, 155. 112 Id., at 155. 113 Id. 114 Id. 115 Nandy, At the edge of Psychology: Politics of Cultures in India, in supra note 2, at 53. 116 See, B.S. Chimni, International Institutions Today: An Imperial Global State in the Making, 15 European Journal of International Law (2004) pp. 1-37.

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“always incomplete project of modernization and of the role of an enlightened elite engaged in a pedagogical mission in relation to the rest of society”.117 Thus this never ending agenda of modernity provides a justification for eternal interventionism in the “other” world, for example, through military measures, cultural and industrial products, mass media, and models of education. The importance of sociology in developing a worldview about the poor and the downtrodden need not be overemphasized. Notably, it was neither Durkheim nor Marx but Max Weber who provided the conceptual framework within which we can more adequately understand the lower class style of life of the urban subaltern.118 Waxman remarks that the religious development of the sixteenth and the seventeenth century had impact not only upon the rise of modern capitalism but also its plastic antipathy for the poor.119 Wealth generation and possession was seen in the Calvinist Protestant tenets as signs of virtue. This inadvertently led to a religious legitimation of poor as immoral. In the year 1786, little known Joseph Townsend published a rather unnoticed book “Dissertation on Poor Law”.120 This work, however, did produce a profound effect, as Waxman says, on Malthus, directly and Darwin, indirectly.121 Even Hobsbawm makes this conclusion about the theory of struggle for existence having a bearing on natural selection.122

VII.

The Uncontacted Tribes and Modernity: A Episode of Blatant Twenty First Century Colonisation

Once again we are in the process of awarding history to the primitive, the tribes. This is mandated by what I call the apology of third disenchantment by the absentee colonisers - after the first disenchantment of the Protestants and the second disenchantment of post-modernists. Indigenous peoples experience, says René Kuppe, three levels of injustice. “They are the transgenerational victims of historic colonisation; they are politically disenfranchised and their cultural diversity is not officially recognized”.123 Recognition of tribal rights conflicts with some of the basic principles of modern constitutional democracy: the declared equality of all citizens; the legitimization of the state for the common good of all and the legal fiction of one homogenous people making up the state.124 Continuing with the same narration of linear growth, from primitive to modern, the corrupt and greedy modernity is invading the tribes who decided to live away from us. The

Partha Chatterjee, Beyond the Nation? Or within? 56 Social Text (1998) pp. 57, 61. Chaim Waxman, The Sigma of Poverty: A Critique of Poverty Theories and Policies, (2nd edition, New York: Pergamon Press, 1983) at 67. 119 Id., at 80. 120 Joseph Townsend, Dissertation on Poor Law: By A Well-Wisher to Mankind (1786) (University of California Press 1971). 121 Waxman, supra note 118, at 81. 122 Hobsbawm, supra note 79, at 254. 123 René Kuppe, The Three Dimensions of the Rights of Indigenous Peoples, 11 International Community Law Review (2009) pp. 103–118. 124 Id. 117

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outsider’s usual view of uncontacted tribal people is a mixture of fear, suspicion, avarice and racism. A. Corrupt Modernity’s Special Investment and Tribal Intrusion

Purpose

Vehicle

(SPV):

The pathology of new capitalist intrusions into the tribal lives around the world reveal dangerous patterns similar to the one seen during colonisation led by the first disenchantment; some are motivated by ethno-tourism while others simply for pleasure. The only difference is that the new bourgeois constituting a mix of national and international capitalists, encouraged by the new consumerist patterns of large masses of cash-rich middle classes, together, form a special purpose vehicle (SPV) of corrupt modernity. This modernity is not corrupt because of its apathy for anything indigenous – knowledge, practices or customs. It’s corrupt because of its loss of compassion for the tribal, the folk and the subaltern peoples, and its addiction to market materialism that sees culture as a product worthy of commercial exploitation. There has been a sudden increase in the cases of private intrusion into the lives of the aboriginals around the world including those who had decided not to come out of the jungle - like the Jarawas of the Andaman Nicobar Islands, the Dongria Kondh of Orissa - and contact the modern world.125 The modernity is about to gift the uncontacted tribes exactly what the Spaniards had gifted to the Latin American Indians about four centuries ago - syphilis, slavery, addiction and devastation. Indian TWAIL however, lacks sympathy for tribal exploitation.126 This is because TWAIL has failed to align the history of the subaltern with the compassion for the tribes and its inward and introvert existence. Tribes that chose to withdraw, and declined to align themselves with the narratives of linear development are now pushed by ethno-tourism which treats them as animals and their native habitat as an anthropological zoo. With this intrusion comes the promise of development. Such an unasked contact is already devastating their culture and because of their lack of immunity to certain diseases gifted by colonisation and modernity; they run a constant risk of extinction. The Indian state has been rather insensitive to this threat. It has not implemented, as a case in point, the decision of the Supreme Court of India to close the illegal road bulldozed through the Jarawa tribe’s reserve in the Andaman Nicobar Islands. Nancy Love notes that: Economically, capitalism and socialism similarly objectify nature as matter, men as producers, and their interaction as products. Politically, state capitalism and state socialism transform market freedoms into

125 There are about 100 such tribes as documented by Survival International, an organisation for creating awareness about the aborigines around the world. See, Julie Christie, Narrator: Uncontacted Tribes, video on (last visited on Aug. 1, 2009). See, Benedict Imbun, Cannot Manage without The ‚Significant Other’: Mining, Corporate Social Responsibility and Local Communities in Papua New Guinea, 73:2 Journal of Business Ethics (2007) pp. 177-192. 126 This concern has been reflected in my, Singh, supra note 32, at 95-95

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administrative plans. Under the authoritarian state, capitalist or socialist, repression becomes an administrative necessity.127

Arguably, therefore, new administrative intrusions into tribal life that will start with tourism will encourage the tribes to learn foreign languages in order to make money. Induced migration will bring them to cities for money and jobs. But there is every possibility of tribes ending up joining the swelling ranks of the working classes still to be pulled out of poverty by the welfare states. We cannot expect an already struggling state to accommodate tribes into the ranks of its proletariats by offering jobs and protecting their rights and stopping exploitation by the brokers of modernity. In the end, they will be part of the so-called global culture including its power structures by becoming labourers and consumers. In a discursive fashion, they will not only become consumers of modernity but also its victims unaware of where this new path is taking them. Yet anthropology and international law have intersected far less often than might be beneficial for both.128 This lack of consideration for the tribal peoples might be because of the fact that their nomadic societies are an anti-thesis of a modern sovereign and the State; a product of Westphalian formulation and Austinian positivism.129 However, Morreti argues that the modern States of “western-style are not necessarily better organised and efficient than the fluid system of organisation of nomadic societies”.130 A United Nations’ working group on the indigenous people (UNWGIP) has been struggling for over a decade to formulate a blanket draft declaration about the rights and future of the tribal people all around the world.131 The tribal existence is one of the dimensions that claim to redefine modernity from an anthropological standpoint conceding that “anthropology, history, archaeology, and other disciplines jostle one another to lay authoritative claims to the pasts of modernity”.132

VIII. International Law as a Science: Role of Other Disciplines in the Making of International Law The theme of 2009 combined conference of the American Society of International Law (ASIL) and the European Society of International Law (ESIL) was titled “Changing Futures? Science and International Law”.133 This 127 Nancy Love, Epistemology and Exchange: Marx, Nietzsche, and Critical Theory, 41 New German Critique (1987) pp. 71, 73. 128 Lee Swepston, Indigenous and Tribal Peoples and International Law: Recent Developments 30 Current Anthropology (1989) pp. 259-264. 129 Sally Merry, Anthropology, Law, and Transnational Processes, 21 Annual Review of Anthropology (1992) pp. 357-379. 130 See, Marco Moretti, International law and Nomadic People available at (last visited on Aug. 1, 2009). Also see, Patrice Kunesh, Transcending Frontiers: Indian Child Welfare in the United States, 16 Boston College Third World Law Journal (1996), pp.18-34. 131 See, The UNWGIP Reports, The International Indian Treaty Council, at (last visited on Aug. 1, 2009). 132 Shami, supra note 47, at 221. 133 See, ASIL/ESIL, Call for papers, supra note 10.

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obviates the importance of a debate whether the international law has become a science completely? International law certainly does not exist in a vacuum, and one of its more complicated relationships to the outside world is its relationship with science.134 Using controlled methods, scientists collect observable evidence of natural or social phenomena, record measurable data relating to the observations, and analyse this information to construct theoretical explanations of how things work.135 The methods of scientific research include the generation of hypotheses about how phenomena work, and experimentation that tests these hypotheses. Judging on these scientific parameters international law, particularly, economic laws, comes quite close to becoming science.136 Activities such as treaty interpretations are regularly subject to scientific analysis. International law contains rules governing the acceptability of scientific and technological data in areas such as food safety or health.137 International law forms part of the raw data used in other sciences. Thus, political scientists, economists, historians, and ethicists, as discussed in detail, all make use of insights from international law to a greater or lesser extent.138 … International law is sometimes based on the insights gained from other sciences: political scientists may contribute to treaty design, while environmental scientists may help determine the substance of and indeed provide the justification for environmental protection agreements … [s]ometimes international law is used itself to protect scientific insights and understandings. Intellectual property rights law is a prominent example … [i]nternational law may also be used to protect the objects of scientific research. Here, a prominent example is the protection of archaeological sites.139

The field of trade and commerce that is regulated by international economic law has assumed, in particular, an onus to prove its scientificity. What is the reason behind this? Since the results of scientific process enable better understanding of past events and a better ability to predict future events of the same kind as those that have been tested; a scientific international law would, arguably, insure equality. The predictability and the subsequent possibility of distributive justice have attracted international lawyers to look for science in international law. Thus from the touchstone of economics, history and psychology, international law’s scientificity can be tested. But since the world that is now divided into North and South have dichotomous reverence to science; the South does not see the objectivity that science claims to posses. Therefore, the efforts of the North to create a scientific international law have not resulted in a whole-hearted acceptance by the South. Today, international law is facing determinism and reductionism which undercuts many valid concerns like poverty, cultural vulnerability, privacy and autonomy of Southern sovereign, sub-cultures and tribal peoples Id. Wikipedia, Definition of Science, at (last visited Aug. 24, 2009). 136 Call for papers, supra note 25. 137 Id. 138 Id. 139 Id.

134

135

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alike. The prejudice of science and history toward pre-science and mythology is ailing international law and is now turning cancerous. A. International law as International “Economic” Law The subject of international economic law consists of international investment law, intellectual property rights’ law, Sanitary and Phytosanitary (SPS) Agreements and TBT issues at the World Trade Organisation, international arbitration, natural resource law and environmental laws etcetera. The aforesaid 2009 conference identifies a non- exhaustive list of issues covered under international law and science. Questions have been asked about the level of scientificity accepted in the application and interpretation of WTO agreements at the panel and the Appellate Body level. Part of the concern has been regarding the proportionality issues.140 While developing potential models for explaining current links between investment levels and dispute resolution mechanisms; speculations on how investment treaty arbitration may create incentives for foreign investment by fostering the development of the rule of law are frequently made in IIL.141 But popular sources of free trade scepticism among ordinary citizens, civil society organizations, and policy makers in the developing countries have not accepted the scientific theories of liberalisation. The sentiment against free trade in developing countries is not simply a function of rent-seeking special interests.142 Chimni opines that “free trade scepticism is rooted in a profound appreciation of the historical, ethical, legal, and political contexts in which the idea of free trade has been advanced and practiced”.143 Thus economic determinism of international economic law must not bulldoze through the privacy and reservations of those who have a slower cultural and social stimulus to international law like the subaltern and the tribes around the world. B. International Law as ‘Circular’ History of the Non-West: A Private Merchants’ Agenda to A Government Project Today, not many people would believe in the plurality of science. The mainstream view on science would not believe that “there can be politics or culture in the content of science”.144 The birth of disciplines has obscured “cultural and intellectual values from the point of view of defeated systems of knowledge, and with the psychological costs of confronting an imperial system of knowledge outside the Western world”.145 International law, no wonder, has been a language of colonisation and therefore, modernisation. Thomas Frank, On proportionality Of Countermeasures in International Law, 102 American Journal of International Law (2008) pp. 715-67, at 715. 141 Susan Franck, Foreign Direct Investment, Investment, Treaty Arbitration, and the Rule of Law, 19 Global Business & Development Law Journal (2007) pp. 338, at 340. 142 See, B.S. Chimni, Developing countries and the GATT/WTO system Some Reflections on the Idea of Free Trade and Doha Round Trade Negotiations, in Developing countries in the WTO legal system 21- 43 (Joel Trachtman and Chantal Thomas eds., New York: OUP, 2009). 143 Id., at 23. 144 Nandy, supra note 11, at viii. 145 Id., at ix. 140

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The Indian Sepoy Mutiny of 1857 gave the English Queen an excuse to take over the powers of administration. The 1857 Mutiny or the first struggle for independence, as Indians like to imagine it, marks the break in the British project of reforming India through universalisation. The second phase of reform was marked by a new cultural relativism which saw Indian culture as ‘infantile’ and ‘immoral’ against the promoted culture through British public school products; the Westernised Indians were declared austere, courageous, self-controlled adult men as against the illiterate, superstitious, and infantile natives. It is this political and cultural adulthood assigned to the educated Indians that Gandhi rejected and instead chose myth over history. International law as a discipline emerged only at the end of 19th century. Soon the powerful states began to fund this project and international law began to take shape. As Koskenniemi tells, international law largely remained a tool to reorganise Europe after Napoleonic wars.146 In that sense it was a European international law. There was an absence of grand theorising that is generally seen in disciplines likes political science, sociology and psychology. At most it could be linked with political science and its theories of freedom and utilitarianism of Bentham.

IX.

Conclusion

It is the {sic} not the fear of the “other”, but what the “other” might show us about ourselves and our most cherished ideas, that prompts our insecurity about the way forward. It exposes that we may rely on pre-written scripts, that the words we speak and feelings we share are not our own, but rise out of the tribal mysticism and patriarchal irrationality of our past.147 The history of the tribunals and criminal courts are not only a lesson in the limits of our ability to reach out; rather, the chief obstacle we face may be that age-old fear of difference, first and last defense to any self-critique, to any challenge of our own identities, our own reality and sense of right and wrong.148

This article addresses the existential dichotomy of international law.149 International law should now be an inclusive discussion about the mythology of Asia as against an ad nauseam dialogue about European history.150 International law is, at present, closed to influences and sources that one may wish normatively to have been absorbed by it. This article is an attempt to expose limitations, even prejudices, within international law practice and 146 Martti Koskenniemi, Georg Friedrich von Martens (1756-1821) and the Origins of Modern International Law, NYU Institute of International Law and Justice Working Papers 1/2006 (2006), at (last visited Oct. 5, 2008). 147 John D. Haskell, The Complicity and Limits of International Law in Armed Conflict Rape, 29 Boston College Third World Law Journal (2009) pp. 35, at 84. 148 Id. 149 See generally, Onuma Yasuaki, A Transcivilizational Perspective on Global Legal Order in the Twentyfirst Century: A Way to Overcome West-centric and Judiciary-centric Deficits in International Legal Thoughts, 8:1 International Community Law Review (2006) pp. 29-63. However, this vision of Yasuaki is not uncontested as Christian Tomuschat replies to this in his, World Order Models: A Disputation with B.S. Chimni and Yasuaki Onuma 8:1 International Community Law Review, (2006) pp. 71-79. 150 Koskenniemi for example in his book Gentle civilizer of nations makes an elaborate discussion on the shared common history of Europe which also is the history of international law. His new works goes further back in European history. See e.g., Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (Massachusetts: CUP, 2002).

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thinking. “Science” here, is central to my distinction between West and nonWest. Science as a process of testing hypotheses and also as a much more detailed matter embedded in the application of WTO law is, no doubt, contextually very different from Science as East-West distinction. Nonetheless, they are threaded by the commonality of discursive context of law application. What began as barely audible notes of dissent in TWAIL has today developed into a powerful chorus of protest yoking science and pre-science, history and pre-history and legal and pre-legal together. Now wonder Habermas “fear[s] that ideas of anti-modernity, together with an additional touch for premodernity, are becoming popular in the circles of alternative cultures”.151 There is no doubt that the Asian approach, one of the “others” of international law, is more natural than positive as Chimni advocates a spiritual view of Sri Aurobindo among other possible choices.152 After all, international law has only been a matter of choice and today if some of the “others” chose to be natural in approach, are they violating some unsaid code of academic integrity? I do not think so. Science, from an anti-modernist view, is corrupt and the international law is today preoccupied with, as Koskenniemi rightly points out, proving its scientificity. This makes international law all the more unwanted. Any attempt to align the tribes with today’s selfish modernity is an act of aggression and expression of modernity’s superior science over those who either fail to understand it or who do not wish to engage with it. International law has to accept it. Thus the concern is: if international law is proven a science, will it become anti-indigenous, anti-poor, anti-subaltern or anti-tribal, like sciences? The answers are not that obvious. Indian alternative science for even the most ardent alternative seeker like Nandy “is impossibly unmanageable”.153 “It not only seems a half-dissent, it also seems inefficient, chaotic, abstruse, amorphous, and unsure of itself”.154 The effect of science through colonisation on Asia, thus, has produced mixed emotions. In this article, some obvious narratives of MILS via political science, sociology and anthropology have been either discussed faintly or ignored for obvious reasons. Economics, history and psychology have been chosen to read through international law as economics and psychology are two ends of the complete circle of the disciplines. Between them a complete rainbow of disciplines lies that mandates a series of efforts on the part of the observers of international law to register comments. It is hoped that the readers of this work would pick up the threads left open by this article to weave an entire fabric of alternative international law in the future. Though limited in its breadth of coverage, the article, nonetheless, seeks to take a step in the right direction. Post-colonial and anti-modernist voices in international law have made a strong case for a

Habermas, supra note 3, at 14. Chimni, Tokyo, supra note 63. 153 Nandy, supra note 11, at 15. 154 Id.

151

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new international law.155 We must save international law from sweeping generalisations and interventionist universality while proving its scientificity. If proving international law a science would mean overlooking contextual milieu of its application, this science would remain undesirable. International law today should be an exercise in restoring the symmetry of the forgone days. It should not only be a debate about Kant, Grotius, and Vitoria. It should also accommodate Gandhi, Kautilya and Sri Aurobindo. A theory of justice from Rawls and Dworkin must also be complemented with the theory of justice of Amartya Sen.156 Chimni’s six fold perspective of international law shows the new directions to be developed further.157 International law in its current form cannot be sold as the medicine to world’s problems. It has developed on its own colonial experience, as an agenda of capitalist avarice. But, its structure, however discriminatory, cannot be pulled down completely. All we can do is to pull down individual discriminatory bricks and replace them by better ones.

155 See for a careful observation on where to situate the “post-colonial” voice, Sundhya Pahuja, The Postcoloniality of International Law, 46 Harvard Journal of International Law (2005) at 459. 156 See B.S. Chimni, The Sen Conception of Development and Contemporary International Law Discourse: Some Parallels, 1 Law & Development Review, article 2 (2008) at (last visited May 3, 2009). 157 Chimni outlines six distinct visions of just world order reflected in recent academic and political discourse in India. These perspectives may be designated as establishment, left, Dalit, subaltern, antimodernist, and spiritual. Each of these perspectives offers a certain understanding of the state, society, globalization, and international institutions. See, B.S. Chimni, Alternative Visions of Just World Order: Six Tales from India, 46:2 Harvard Journal of International Law (2005) pp, 289.