@article{2016:menski:still_aski,
title = {Still Asking for the Moon? Opening Windows of Opportunity for Better Justice in India},
year = {2016},
note = {This introductory article picks up the key themes developed by the
three articles in this Special Issue and wraps them into a wider
discussion about creating new opportunities for productive use of the
internal pluralities of ‘law’, especially concerning the complex
relationships arising from ‘law and society’, ‘law and
development’ and ‘law and governance’ debates. That is of course
a tall order. To do this properly, ideally without losing focus, one
needs to be aware, first of all, that law itself is internally so
deeply plural that it is necessarily subject to interdisciplinary
enquiry, not only while analysing foreign jurisdictions or examining
state laws in today’s context of globalisation, as the pluralities
go much deeper and are ancient. One could extensively theorise this
rich plurality of pluralities, as I tend to call it these days, to
bring out the internally plural scenario of legal pluralism in
relation to the three subject areas discussed. However, legal
pluralism is today increasingly acknowledged as a fact and is ‘no
longer viewed as an arcane area of study’, especially when we
include within our radar the legal systems of Asia and Africa. Hence
we might proceed swiftly towards related problematics of
implementation, or lack of it, as the case may be, since all three
articles presented here identify and critique perceptions of lack of
progress and search for remedies. In that context, I return to one
particular image used earlier, when it struck me that reform-oriented
activists tend to ask for the moon, in other words, to lobby fiercely
for or simply demand an ideal scenario of development, progress and
rational order, not to speak of justice, only to be irritated and
disappointed when reality yields merely a mirror image of what was
desired. Maybe one even finds unforeseen, unintended elements in the
mirror image. I suggest here that Mother Yashoda’s ancient trick is
much more than the loving kindness of the Mother Cow (vātsalya) for
her offspring. It is also a non-verbal strategy of diversity
management, deeply relevant for the global rhetoric of justice. It
allows life to continue harmoniously, bypasses the petty impatient
irritants of demands and desire, and opens windows of opportunity for
better clarity of visions. In that regard, it is pertinent to note
here that the overall assessment of Indian legal and other
developments remains today generally clouded by remarkable
negativities. Often derogatorily bad-tempered and unconstructive, it
is frequently motivated by certain political and even personal agenda
that underpin partial, hostile rhetorical dismissals of anything India
attempts to survive in dignity. Reading of scholarly work, as of
judicial decisions, may actually benefit from awareness of the
writer’s biography, to understand better why particular perspectives
are taken, certain lenses are chosen and specific outcomes are
presented. Apart from being informed by the three articles that
constitute the main body of this Special Issue, the present
introduction is particularly inspired by Sen, a massive study that
identifies early on that ‘[i]mportance must be attached to the
starting point, in particular the selection of some questions to be
answered….rather than others’. This wide-ranging post-Rawlsian
analysis of justice as reasoned fairness, a form of equity rather than
an idolised moon-like image of equality, realistically observes that
‘global justice is not a viable subject for discussion, since the
elaborate institutional demands needed for a just world cannot be met
at the global level at this time’. This sobering health warning
implies that any globally uniformising analysis of justice risks being
little else than rhetoric asking for the moon. More productive, as the
three present contributions exemplify, are efforts to think about and
strive for more and better local justice. By definition, as the little
words ‘more’ and ‘better’ indicate, the aim is not selfish
possession of the full ideal shining end-result in the sky of hope, as
the research effort represents agitation ‘merely for the elimination
of some outrageously unjust arrangements’. What precisely is
‘outrageously unjust’ would, however, remain subject to often
highly subjective assessment and situation-specific scrutiny, as
outrage can be easily manipulated or may be (ab)used strategically as
a bargaining tool. Similarly, Twining found in conversations with
leading Southern voices of human rights protection that their
pluralist desire to account for different perspectives always risked
‘tolerating the intolerable’. Both these methods, identifying what
is ‘outrageously unjust’ or ‘intolerable’, will indeed be
subject to unending reasoning. While we may readily agree that it is
intolerable or outrageously unjust in today’s world that some people
die of starvation, deficiencies in securing a specific extent of
development, basic education for young people or gender equity in
family laws are much more difficult to assess in light of the
respective actors’ value judgements. So what can we do if some
participants in these ongoing debates stubbornly continue to insist
that their perspective is correct and everyone else’s is misguided?
Sen observes in this context that ‘many acts of nastiness are
committed by people who are deluded, in one way or another, about the
subject’. Since humans cannot find a globally agreed definition of
‘law’, this indicates that we will forever struggle with
universally binding agreements about justice. Hence, given that ‘a
diagnosis of perfectly just social arrangements is incurably
problematic’, justice is never really an identifiable final or
permanent state of perfection, but rather a momentary glimpse of the
moon of bliss. Sen suggests: Resistance to injustice typically draws
on both indignation and argument. Frustration and ire can help to
motivate us, and yet ultimately we have to rely, both for assessment
and for effectiveness, on reasoned scrutiny to obtain a plausible and
sustainable understanding of the basis of those complaints (if any)
and what can be done to address the underlying problems.  Thus, Sen
advises: ‘The challenge today is the strengthening of this already
functioning participatory process, on which the pursuit of global
justice will to a great extent depend. It is not a negligible
cause’.  Picking up this challenge, I seek to demonstrate how, in a
scenario of ever more intensive pluralisms of people, communities and
states, as well as concepts and methods of justice-conscious activism,
even if we only focus here on Indian basic rights problems, the
complexities in this field are growing rather than being reduced.
There is a cacophony of comment and critique, and we find much anger
and disappointment about what looks like significant failures. And
yet, it seems, considerable progress is being made in establishing
greater clarity about relevant parameters, particularly in identifying
more sophisticated benchmarks for assessing and promoting plausible,
realistic forms of justice. The elaborate performance of academic
discourse is thus not a futile exercise, even if it is full of
irritants. It can bring increasing awareness, first of all, about the
inherently plural nature of law, its multidisciplinary uses, and at
the same time its limits, too. Aware of such limitations and volatile
liquidities, we may then proceed to further discussions about
ambitious ideals like justice. Asking for the moon of perfect justice
remains also today a tempting short-cut strategy, succumbing to almost
childish desire to have a desirable toy. The hard labour of reasoning
over the contours of the resulting mirror image of this ideal is never
going to end. This introduction therefore also tests to what extent
the three energetic young contributors to this Special Issue are aware
of such limitations and are prepared to engage constructively in
further reasoning.},
journal = {VRÜ Verfassung und Recht in Übersee},
pages = {125--147},
author = {Menski, Werner},
volume = {49},
number = {2}
}