[Commons-Law] Owning 'work or owning 'information'

[Keith Hart]

Dear`Avinash,

First, apologies for unwarranted classification and second, thank you 
for the seriousness of your latest reply. I can only attempt a partial 
answer to such big questions based on personal experience. This is in 
any case both the form and the content of my approach I take to the 
general issues of law, justice, knowledge and value you raise. I agree 
that we should not limit ourselves unnecessarily in the ambition we 
bring to our explorations of the world, but then we have to discover a 
level of engagement with such questions that is appropriate to our 
circumstances and, perhaps as a result of learning from experience, we 
may be able to narrow the gap between our puny self and the scope of the 
universe we inhabit.

I will start with a joke. A sociologist interviews a married couple 
together as part of a survey of decision-making in the home. First i 
want to fin dout who takes the big decisions, he says. I do, says the 
husband. Yes, he does, says his wife. OK, perhaps we can be more 
concrete. If you decided to move to another neighbourhood, who would 
have the main say in choosing your new house? I would, says the wife. 
Yes she would, says her husband. Alright, if your child is having 
problems at school who would be likely to decide whether to transfer him 
to another school? I would, says the wife. Yes, she would, agrees her 
husband. The sociologist is a bit perplexed. I thought you said you took 
th ebig decisions, he says to the husband. Yes I do, he replies. I 
decide if China should revalue the yuan, whether Israel should be 
allowed to stay on the West Bank -- the big decisions.

Which to say that how you affect the life of your own child may seem to 
be small potatoes in th egrand scheme of things, but you can be a major 
force for good or bad, whereas stopping the Indian government from 
enacting regressive patent legislation is apparently more important, but 
your personal influence on the decision is likely to be nugatory. The 
trick is how to scale up ones self and scale down the world so that the 
two might meet on more menaingful terms than is currently the case. 
Prayer once filled this need for many. Fiction, novels and movies, 
enables us to enter history as subjects exercising judgment. The citizen 
soldier fighting a just war achieves something like this. The suicide 
bomber likewise. Scientists who seem to explain a whole universe through 
a single equation pull off this trick. The larger questions can only be 
addressed if we understand the need to make our effective knowlege at 
once personal and general.

I have no doubt which 20th century figure came to terms with this issue 
most successfully. In the 19th century western imperialism brought the 
rest of humanity into world society on extremely unequal terms and they 
in turn shaped the 20th century by fghting to join it on their own 
terms. I believe that the 21st century will see world society realigned 
to reflect where most of the people are, a continuation of what we have 
already witnessed but more revolutionary even than th eend of colonial 
empire, since the west, the US and Europe, will lose their control of 
global institutions along with the transfer of economic power eslewhere, 
notably to China and India. We are living through the early stages of 
this latter phase, a period in which the digital revoltuion in 
communications has simulataneouly speeded up the integration of world 
society and acclerated the transfer of production away from America and 
Europe.

So when I look for the intelelctuals of the 20th century who made a 
difference to the content of th eongoging human conversation about a 
better world, I find them in the anti-colonial revolution. Gandhi to my 
mind stands head and shoulders above the rest because he synthesised so 
well a strand of western thinking with eastern traditions. I consider 
the west Indian revolutionary and writer, CLR Mentor to be my mentor and 
I have learned also as much from another Caribbean intellectual, Frantz 
Fanon, but these men were operating largely with the western tradition 
from a standpoint of resistance to colonialism and racism. James used to 
say that he always felt he had a fair wind at his back in embarking on 
what was often a lonely road of anti-colonial politics and writing.

The main point I wish to make through a selective reading of Gandhi is 
th eone I highlighted initially in this message. For evidence i would 
refer primarily to his autobiography, but also to Bhiku Parekh's 
Ghandi's Political Philosophy (please excuse the lack in care in 
scholarly reference, but this is after all just an email message). 
Gandhi's critique of modern civilization and especially of th emoder 
state was devastating. He believed that it disabled its citizens, 
subjecting mind and body to the control of professional experts when the 
purpose of a civilisation should be to enhance its members’ sense of 
their own self-reliance. He proposed instead an anthropology based on 
two universal postulates: that every human being is a unique personality 
and as such participates with the rest of humanity in an encompassing 
whole. Between these extremes lie proliferating associations of great 
variety. As an Indian who had absorbed much that the West has to teach, 
Gandhi settled on the village and therefore on agricultural society as 
the most appropriate social vehicle for human development. <>

This backward-looking solution to the problem of the modern world makes 
Gandhi a typical 20^th century figure. But the problem he confronted has 
been largely ignored by social theorists. It is this. If the world of 
society and nature is devoid of meaning, being governed by remote 
impersonal forces known only to specially trained experts, that leaves 
each of us feeling small, isolated and vulnerable. Yet modern cultures 
tell us that we are personalities with significance. How do we bridge 
the gap between a vast, unknowable world, which we experience as an 
external object, and a puny self endowed with the subjective capacity to 
act alone or with others? The answer is to scale down the world, to 
scale up the self or a combination of both, so that a meaningful 
relationship might be established between the two. Gandhi chose the 
village as the site of India’s renaissance because it was where most 
Indians lived, but more importantly because it had a social scale 
appropriate to self-respecting members of an agrarian civilisation. 
Moreover, he devoted a large part of his philosophy to building up the 
personal resources of individuals.

His autobiography is full of examples of how he threw himself into 
sitations he didn't understand and subsequently built up an approach 
that was both personal and systematic. Read about his initial encounter 
with London as a law student. His first problem was to find somewhere to 
eat, but before long he was an active member of the Vegetarian Society, 
writing political tracts and eating the way he wanted. After the crucial 
South African period, where he learned his political mission, read also 
about the amazing intervention he made into a strike in Ahmedabad, where 
he just turned up and sat down alone on a street corner and within days 
the whole political situation revolved around him. We can't all be 
Gandhi, but each of us can learn from him how to train ourselves to 
enter society more effectively than before.

This is no doubt bringing coal to Newcastle. What about your question 
concerning the source of law? The first thing is to be clear about what 
modern history is about. It is about democracy. That is the only value 
that counts or should count in all -- the movement to ensure that the 
people most affected by a decision have the greatest say in making it. 
And, as we used to say in Manchester where I grew up, you are no good to 
anyone else if you can;lt look after yourself. The most pernicious 
doctrine is the one that says self-preservation or self-interest is 
selfish and anti-social. We are or should be searching for societies 
that are conductive to individual self-espression. The idea that ones 
ultimate self-interest lies in the good of everyone is common to Locke 
and the Buddha. Similar notions can be found in Hinduism, Christianity 
etc. But anyone who tells you that must be altruistic in order to serve 
the collective good is a fraud and probably in the pay of the 
powers-that-be.


I have referred to the English common law tradition before. At a 
fundamental level the idea of right must come from individual citizens. 
and be a body of internalized theory that can be applied in practice 
often under emergency condition. But I also believe that the American 
and French experiments in a written constitution as the basis for legal 
judgment were an improvement on the unwritten British constitution. 
Judgment as a personal quality can only be built up through experience 
over time. We learn from our commitments and our mistakes. Let me offer 
a personal example.

In fall 1977 I was teaching at Yale. One day a young man in a hunting 
jacket and big boots came into my office to remove the waste bin. I 
asked him who he was and the ran away without a word. The office cleaner 
was an elderly black lady called Lucille and it occurred to me that I 
hadn't seen her recently. So I asked around and found out that the 
manual workers union was on strike and the young man was scab labour. On 
making further inquiries I discovered that this sort of thing happened 
every three years when the contract had to be renegotiated and it could 
be better described as a lockout by the Yale authorities since they were 
often responsible for a breakdown in negotiations. On the last two 
occasions the workers had been out for several months and the conflict 
spread to involve the campus as a whole.

The pattern had been set some time ago. The union and its supporters 
tries to knock out the energy supply to the building containing the 
university's most prestigious scientific experiments as leverage in the 
dispute. This requires neutralising one power station. The oil is 
delivered by truck and so, if the Teamsters Union can be persuaded to 
cooperate, so much the better. In 1971, students lay down in fron front 
of the trucks when the teamsters refused to play ball. In 1974 students 
set fire to the power station. In neither case was the station closed 
down and eventually the workers came back on reduced terms. In 1977 the 
students were complaining about not being seved breakfasy in their halls 
of residence.

For some reason that I am not sure about, I decided to join the struggle 
in this time of general demoralisation. I thought it wasn't right. I had 
never before taken part in any labour dispute, nor was I particularly 
radical in my politics. I found only a handful of academics willing to 
come out in support of the workers and most of them were junior 
researchers reliving their own experiecne of anti-war demos earlier. I 
was th eonly tenured faculty involved and all of the rest folded within 
a few days. I found myself escalating -- I gave interviews to the local 
press and TV saying that the Provost was lying and so on. But I found 
that I got cool treatment from union officials.

The local leader of the union was an Italian gangster who was currently 
facing a charge in California. The teamsters (another section of the 
unionised mob) stayed out of attempts to isolate th epower station and 
the experiments remained safe. eventually I realised that the union had 
made an informal deal with the university to help them lay off workers 
for a couple of months, save on their salary bills and bring them back 
before Christmas with a free chicken as compensation. Itw as a 
chastening expereince, but I learned quite a lot about the law and 
especially about the politics of law. I had only been in the USA for a 
couple of years, but I still felt that this was an issue that would 
leave unable to face Lucille in future if I didnt find out if there was 
something I could do. I was naive and ineffective. I never particpate 
din a similar conflict since then. But it was formative of my personal 
judgment about the elaw. I gained some knowledge from the experience, 
but knowledge was not what I brought to the expereince in the first place.

On that incolclusive note, I will end this rambling anecdotal reply to 
your powerful set of questions and go back to thinking about them.

Keith