The 'Third World' and Socio-Legal Studies: Neo-Liberalism and Lessons from India's Legal Innovations

Abstract

A terse, brief order of the Supreme Court of India in the Networking of Rivers case in September 2002 impugns the role of public interest litigation in the wake of neoliberal reforms. At a poignant moment in India's 'tryst with destiny', socio-legal studies in India stand disarmed and disempowered without adequate conceptual and theoretical tools to analyse and interpret the event in emancipatory ways. The case inaugurates a new phase in judicial activism and Public Interest Litigation in India, a subject that has been written about extensively both in India and elsewhere. In this article the Networking of Rivers case is used as a vehicle to explore the trajectories of developments in socio-legal studies in India and the ways in which it may have contributed to the present theoretical and conceptual impasse. The article argues for a more geo-historically differentiated understanding of the theoretical underpinnings of socio-legal studies in India and the 'Third World' generally. KEY WORDS law in development; Networking of Rivers case; public interest litigation; river basin development; 'Third World' context SOCIAL & LEGAL STUDIES

The Limits of Socio-Legal Radicalism

“…There is, for instance, little or no explicit engagement in the journal with the theoretical debates over the meaning, purpose and direction of law and development. While it is certainly true that many articles published in SLS come from within this broad tradition (Harrington and Manji, 2012;Manji, 1999;McAuslan, 2015;O'Rouke, 1992;Stewart, 1995), they are not centrally concerned with debating the history and contours of the field as such (an exception is de Souza, 2005). This is surprising for two reasons: one biographical and one conjunctural.…”

“…First, the original iteration of Law and Development had been a key frame for much of the scholarly work in and on the Third World in the 1960s. Ford-funded US scholars and their British peers worked through, challenged and ultimately repudiated the canons of Law and Development Mark I. Trubek and Galanter's widely cited 1973 essay 'Scholars in Self-Estrangement' served as confiteor for the generation of ex-patriate scholars in Britain, as well as North America (see de Souza, 2005). Second, Law and Development was revived by the World Bank in the decade from 1992 as it responded to the social and political chaos which had followed its structural adjustment programmes.…”

Untitled

“…The constitutional reforms of 1935 introduced elected governments in the provinces based on enlarged communal electorates. It introduced a system of governance under which economic powers remained with the unelected central government, and social and cultural matters delegated to provincial governments elected by communal electorates (D'Souza 2006). This model of governance that put economic powers in the hands of a superior unelected British government and political, social and cultural affairs in the hands of an elected provincial government was the forerunner of the international UN system where the Bretton Wood institutions, charged with regulation of post-WW2 economies of states, remain in the hands of five largest capitalist states elected on the basis of their share subscriptions alongside decolonisation and self-determination (D'Souza 2005).…”