BIO-CULTURAL COMMUNITY PROTOCOLS - Portal do Professor

PART III / CHAPTER 7
Locke also remains one of the exemplar philosophers of
the 17th and 18th century, a period in which many of our ideas
of selfhood emerges. In many ways, the question of personal
identity was the primary question that motivated Locke’s
enquiry…While the question of personal identity troubled
many philosophers even before Locke, it was only with the
publication of Locke’s Two Treatises on Government and
Essay Concerning Human Understanding that you have
the establishment of the most coherent argument linking
theories of identity to property. If property is both an
extension and a pre requisite of personality then we should be
aware of the possibility that different modes of property may
be seen as generally encouraging different modes
of personality. 4
Mauss in his work when analyzing the giving of gifts in
traditional societies was emphasizing their inalienability
from the giver. The gift can therefore never become a
commodity that is separate from the person who gives it, but
rather the very act of giving creates a social bond with an
obligation to reciprocate on the part of the recipient.
While property jurisprudence that underlies FPIC in contract
law emphasizes the rights of the legal subject to alienate an
object that s/he owns, the nature of the gift in traditional
3. Towards a Biocultural Jurisprudence
The trade route is the Songline’ said Flynn, ‘Because songs, not
things are the principle medium of exchange. Trading in “things”
is the secondary consequence of trading in song’. Before the
whites came, he went on, no one in Australia was landless,
since everyone inherited as his or her private property a stretch
of the Ancestor’s song and the stretch of country over which
the song passed. A man’s verses were his title deeds to territory.
He could lend them to others. He could borrow other verses in
return. The one thing he couldn’t do was sell of get rid of them.
Bruce Chatwin, The Songlines
Property jurisprudence when dealing with ILCs is estranged.
This estrangement taints even the best-intentioned efforts
of the different international environmental laws and polices
BIO-CULTURAL JURISPRUDENCE
societies is an example of customary law where a gift is an
affirmation of a relationship that obliges reciprocation,
the gift therefore can never become a commodity in the strict
sense of the word since it is always tied to the giver through
the obligations it creates in the receiver.
Mauss by observing the culture of gifts amongst the
Maori and in Polynesia established the very opposite of
commodification that ‘the bond created between things
is in fact a bond between persons, since the thing itself is
a person or pertains to a person’. Hence it follows that to
give something is to give a part of oneself. In this system
of ideas one gives away what is in reality a part of one’s
nature and substance, while to receive something is to receive
a part of someone’s spiritual essence. 5
Social, cultural and
spiritual bonds that underlie gifts in traditional societies also
underlie relationships bio-cultural communities have with
their knowledge, lands, territories and resources, which are
the heart of their conservation and sustainable use practices.
Therefore the right to FPIC in the context of Article 8(j) for it
to truly affirm the way of life of bio-cultural communities
has to underpin the right to consent in accordance with
the customary laws and values of these communities 6
that attempt to secure the interests of ILCs. Estrangement in
environmental law and policy is generally manifested in
paternalistic attempts at protecting the rights of ILCs, without
addressing the root of the matter, which is securing the
foundations that support a way of life i.e. self-determination
and customary law.
It is possible that causes of legal estrangement are cognitive,
due to certain habits of legal thinking that determine what is
observed and what is ignored when property jurisprudence
encounters ILCs. An effective counter to property jurisprudence
is a bio-cultural jurisprudence that takes as its starting point
the right of bio-cultural communities to determine their way
of life in accordance with their customary and spiritual values.
4. Lawrence Liang et al. ‘How Does an Asian Commons Mean?’ . See also Etienne Balibar, My self and My own: One and the Same? In Bill Maurer & Gabriele Schwab,
Accelerating Possession: Global Futures of Property and Personhood, New York: Columbia University Press, 2006.
5. Mauss, Marcel, The Gift: Forms and Functions of Exchange in Archaic Societies, Norton Library: New York, 1967, p.10.
6. Hyde, Lewis, The Gift: Imagination and the Erotic Life of Property, Random House: New York, 1983.
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