Jurisprudence and state recklessness
Global jurisprudence is continually battling with the challenge of cutting its intellectual and organizational cloth to better fit the latest malefactions of the body reckless. Locally, it is beset with the following challenges:
First, where a cosmopolitan society is in formation, and each “ethnic” system of law is dissolved or subordinated to a centralized bureaucracy, how shall the new masters of law, armed with the law of the king, parliamentary law, with its own system of assizes, its case law, the law of precedent, presume? The weight of bureaucratic centralization brings with it endless pressure; each fish and fowl has a suit, a grievance, in a complex “advantage-taking” cuchoor-driven society.
Litigiousness is inescapably rich, and keeping tabs, administrating, and avoiding backlogs are near impossible.
Second, more vigorous and dodgy forms of crime are always emerging. Donald Trump wants to build a wall across the land which the United States grabbed from the Mexicans, the indigenes, a century and more ago, to “protect” the North from crime, human trafficking, drugs, illegal entry.
But no sooner than you build a wall, extend it higher, than the modern insurgent, transgressor finds a way over, under, through, around. There are more than one route to China and all its tea.
Jurisprudence requires new assizes (especially at the local level), new knowledge, new organization, new technology, reformed considerations of equity.
Third, politics, like weevil in rice, besets everything. Professional and para-juridical bodies are jumping up in the same fête: the Parliament; professional organizations such as of engineers or contractors, as they too bid for consultancies, contracts; state agencies such as UDICOTT, NIDCO, the NGC, the EMA with their own line ministers to tip the scales; the university consultant/technocrat, gifting government with well-behaved conduct and opinions; and some media companies, owned by conglomerates that levy considerable financial influence.
The system of patronage (you scratch my back) is endemic. How are law lords to trust the opinions, assessments, evidence of any of the above “expert” professional entities?
So, three fundamental problems. How does one sustain justice under the burdens of backlog, a society weeping for litigation; laden with historical inequity, advantageousness. How do you cope with new crimes by dodgy state and corporate actors; or engendered by altered economies and technologies? Which “experts” do you trust when they all seem beholden to the state, when intertwined interests abound?
Local jurisprudence has yet to sufficiently ponder on the presumptuousness of the word “development”, the face behind its mask. You might think that when the state decides to invest billions of dollars on a project, where billions of dollars are jumping up in the tin pan of the Treasury, government decision is bound, by its calculus, measurement, approach, to be correct. Wrong!
History shows that government actions on big spending projects have invariable proven to be reckless; dodgy. These projects have come hooded in the cloak of one word: development.
A court might be forgiven for presuming that when government embarks on a “big development project” on behalf of the “public interest”, where the future lives of populations and their infrastructural assets, financial, economic, social and ecological do matter, that the government is in the main correct, or well intentioned. But recklessness is more often than not, the case.
Take the switch from the rail to the uneconomic highway mass transit economy. Take the New Cut drainage of the South Oropouche Lagoon in the 1960s, salinating massive swathes of agricultural soil. Take the switch to the ungovernable comprehensive school system. Take the trade liberalization drive of the 1980s mashing up the diversification drive, the balance of trade, foreign exchange infrastructure.
Take the bail-out from the agricultural economy of Caroni 1975 Ltd, the bail-in of the HCU and CLICO; and the agglomeration of such entities, in insurance, banking, mortgage, merchant marketing, to the detriment of ordinary citizens.
Take the Master Gas Plan for the West Coast and SW Peninsula, involving 13 heavy gas-based industrial complexes, industrial estates, roadways, ports, pipelines. Take the Petrotrin/Board closure of the Chatham Diary.
Take the Manning/UDICOTT plan to skyline the West Coast from Cedros to Chaguaramas with high rises and strip malls. Take the plan for enhanced monetization of the gas-based assets of Petrotrin (GTL/WGTL). Take the mortgaging of Central Bank assets, the Green Fund, and the use of the Phoenix Gas offerings, Treasury assets, to fund exorbitant recurrent expenditure. Take the Pt Fortin highway extension characterized by lack of probity, recklessness, bankruptcy, overspending, mess.
Not a single state actor involved in any of these actions, debiting our society humungous social costs, billions of dollars in financial assets, reckless to the core, has been punished.
When government says “big development”, it invariably meant unmitigated destruction. Recklessness, negligence, endangerment, injury, lack of probity. How must jurisprudence cut its cloth here? Very little jurisprudence, in equity law, has occurred here.
(Wayne Kublalsingh is a social commentator.)