Robert A. Silverstein
In an editorial in The Morung Express dated February 21, 2017, the nature of customary law is addressed: “Political and legal thinkers point out the ‘customary law’ concerns the laws, locally recognized principles, specific norms and rules of conduct, patterns of practices, beliefs and customs established over time which are applied by community institutions to internally guide and govern an indigenous political community.
“’Customary law’ has been projected to encompass principles of equity, shared responsibilities, and collective interdependence. It is holistic and focuses on bringing balance and harmony to all aspects of community life, values of equilibrium, respect and restorative justice while addressing conflicts, and is also the basis of negotiation.”
The editorial goes on to say that, “… the colonial project misappropriated ‘customary law’ and effectively broke up community cohesion through negating indigenous ways of life, worldviews and their intellectual and moral framework.
Subsequently, the colonial construct of ‘customary law’ became more narrowly defined and lost its flexibility under the State system on the post-colonial era and this reinforced the hierarchical and patriarchal systems.
“The colonial ‘customary law came to represent an outdated rigid parochial view of reality manipulated by people in power to support their own interests. More importantly it stopped facilitating restorative justice approaches which marginalized women, younger people and people of ‘lesser privilege’ and this did not address the issues of equity.
“Today’s form of ‘customary law’ has ceased to reflect the indigenous community’s ethical foundation and values.”
Further on in the editorial, it suggests the establishment of a “Naga Tribunal,” under Point 9b(ii) of the 1960 Sixteen Point Agreement, stating of such a tribunal that it “needs an independent body comprised of respected and capable women and men from diverse backgrounds and experiences who have demonstrated their commitment to work for equality, justice and the common good.”
My apologies for the lengthy quotes from the editorial, but they are necessary to the points I want to make.
It is my contention that all of the above, although articulate and seemingly logical, make a number of presumptions which are unrealistic, and can only lead to disappointment and resentment.
Paragraph one, above, is satisfactory as a general definition of “customary law” (hereinafter CL). But paragraph two starts us down the road to major misunderstandings about CL. It uses words pregnant with meaning like, “principles of equity,” “shared responsibilities,” and “collective interdependence.” It uses ambiguous terms like, “values of equilibrium,” “respect and restorative justice,” which imply in the mind of the reader some sense of present day values.
None of the words and phrases above have clear meanings. Each is subject to debate and to a large extent are subjective. After all, I recently wrote an article that was published in The Morung Express titled, “Aretha Franklin was Wrong: All Women are really asking, “’is for a little P.O.W.E.R.’”
It basically said, disagreeing with a previous article that pointed out that “Naga Men by and large love and respect women and children,” that women are not interested in respect, they are interested, like men, in power.
“Principles of equity” means nothing in and of itself.
Who defines what is equitable? In another article I recently wrote, which appeared in The Morung Express and the Eastern Mirror, I quote extensively from “Thucydides: The War of the Peloponnesians and the Athenians.” Anyone who has studied ancient Greece will know that Athens had one of the first pure democracies in Western civilization. But only certain men could vote, women could not vote, nor could slaves. The whole system was, to use the words in the present editorial, “holistic and focuses on bringing balance and harmony to all aspects of the community, values of equilibrium,….”
In other words, words like “equity” and “justice” are meaningless in and of themselves. Philosophers have been debating what those words mean for over 2,000 years. (Thucydides wrote in the 430s-410s BC.)
I disagree with the editorial conclusion that things were fine until the colonial powers intervened. That way of thinking presumes that all was well, in the sense that there was a constant progression in the direction of what we’d like to believe should be the case until the intervention by the British. There is no doubt that the colonial powers everywhere manipulated the system of tribal and caste beliefs for their own benefit, but that does not mean that, were it not for the colonial interference, we would have CL that is progressive and liberal as we define those terms. To this day, there are many modern cultures that do not treat people equitably, peoples who think democracy is a decadent form of government that leads to nothing but capitalist inequality.
The editorial talks about setting up a Naga Tribunal with wise men and women “to work for equality, justice and the common good.”
But those terms are what in the law are called “glittering generalities.” They mean nothing on their own. As I pointed out, who determines what is just? How do you define equality? There’s equality of means versus equality of ends, a topic in every political science class in the Western world, and perhaps here to. And you cannot have both. An equality of means leads to inequality of ends, that is, if you try to give someone the same tools to move forward in life, some will be successful and some won’t. If you work for an equality of ends, you are saying that merit is not the cornerstone of your society but equality of people’s possessions and way of life is.
The latter is a form of communism, in the literal sense, each according to his needs.
All these terms are in themselves meaningless. A Naga Tribunal is not going to resolve these issues.
I had a tutor at Oxford, Sir Isaiah Berlin, who was famous for his view that fundamental values, like equality and freedom, are fundamentally incompatible, that they conflict.
To have more equality, you will have less freedom, and vice versa. That is obviously true. The issue is, who makes the societal decisions as to where to draw the line? Who decides what the balance is going to be in relation to distributive justice? How much of my tax money is going to the poor? What guidelines are to be used?
To talk about a Naga Tribunal working these things out is to avoid the main lesson of the last few chaotic weeks. The question is not about the “common good,” it’s about POWER, it’s about who determines what the common good really means, who has the power to make those decisions.
The point of me writing this article is not to discourage Nagas from trying to work out a way to live with compromise, but to discourage not just Nagas, but all people, from expecting things to work out.
They won’t. Another professor of mine once said, that the ship of state is the only ship that never reaches a port. The tensions of the last few weeks over the power of women versus men will never disappear.
Human beings have been slaughtering each other over power for as long as there has been written history, and before, as far as we can tell, and it’s never going to stop. Humans are imperfect, and power is the great battleground for working out those imperfections. To expect anything better is to be disappointed and end up being bitter.
