PROPERTY AND PERSONHOOD: COMPARATIVE ANALYSIS OF TRIBAL AND COMMON LAW SYSTEM

The paper presents a comparative reflection of the property and personhood concept, between dominant Common Law and varied Tribal/Indigenous legal systems, that the construction of the former has been a major agent of dispossession and environmental annihilation. Common Law considers property to be an individualistic, alienated bundle of rights to property, and personhood to be anthropocentric, and confined to humans and corporate fictions. In tribal jurisprudence, however, the notion of property is an act of altruism, to a relationship, to the land and the people, where natural objects, like rivers, mountains, tend to be regarded as living beings and possess rights and personhood. This impossibility of the two types of jurisprudence being compatible has been exemplified by the case of the Niyamgiri Hills in India, Niyam Raja, the god-like mountain of the Dongria Kondh tribe, was a living deity and a legal person, and the Niyamgiri Hills conflict. The weakness of the anthropocentric form of the state confronted with the ontological difference becomes evident by the fact that the Supreme Court of India ruled that it was up to the tribal legal institutions to make the final decision. The critical approach with regard to the various schools of jurisprudence (Natural Law, Historical, Sociological and Realist) exposes in the paper that the dependency of the Common Law on these definitions is an epistemological injustice, which undermines spiritual assertions to subjective culture. Even though the cases when legal accommodations (including the role of Native title or consultation) are applicable exist, they tend to bring indigenous worldviews into compliance with the proprietary form of the state to the extent that they can not be real legal pluralism. The paper ends by making the recommendation that in order to resolve the current crises of the environment and social life, the radical reconsideration of these underlying legal ideas is urgently required, and a transition ...