Leiden Law Blog

Living in a world of give and take

Living in a world of give and take The gift of life

The terrorist attacks in Paris and the Western response to them have made me realise once again to what extent we tend to focus on taking something away from others. Terrorists take lives and undermine feelings of security, and we have seen that the response consists largely of taking more lives. We can see a similar pattern in our approach to crime in general. Criminals also take away something from others (like money, property, sexual integrity, health, or a life), and criminal law can initially only respond to this by taking something back (like freedom, through a prison sentence; or money, through a fine), in an attempt to restore the balance. (I have written elsewhere more extensively about this.) All this is understandable and perhaps also necessary, but it is largely negative action, focused on what we do not want in our world: no terrorists, no criminals.

The things we (do not) want

The popular Dutch researcher Marja de Vries has said something interesting about this focus on what we do not want. In her book The Whole Elephant Revealed (in Dutch De hele olifant in beeld) she discusses ‘the existence and operation of Universal Laws’ in our life. When she comes to the Law of Attention, she argues that by focusing on what we do not want, unconsciously we give it energy anyway and help to manifest it. Therefore this is not the way to get rid of unwanted behaviour, and it is crucial instead to focus on what we actually do want. An important message, I think, when it comes to dealing with terrorism and crime.

The larger perspective

If we dive a bit deeper into this behaviour of taking from others, we quickly discover that it is certainly not limited to just terrorists and criminals. In fact, it is symptomatic for what is deeply ingrained in our culture as an accepted way of life. Ever since the rise of the ego some 6000 years ago (see my previous blog on this) we have regularly engaged in taking from others on a large scale. For instance, when the European colonists settled in the New World, it did not take them long to take possession of the land. They considered it legally permitted to do this, because there was no law in existence which stated that this land belonged to the Native Americans. And in a way they were right: the Native Americans did not consider it possible to own land, because in their view they were owned by the land. Although at the time the act of taking possession of land by the colonists could not legally be considered theft or a crime, now in retrospect we can see that it actually was.

The craziness of property rights

How crazy our ideas about property have become was demonstrated recently when the Turkish army shot down a Russian military aircraft on July 24 which on its way to Syria for a few seconds apparently passed through Turkish airspace. Globally we are used to the idea and think it’s normal (and even legal) that a government owns the airspace above its country, and that anybody passing through this airspace without permission is committing a severe offence. We don’t even consider it strange that a government can decide to close its airspace down completely for foreign travel! The craziness of our property ideas is also shown after parties at war have battled fiercely over the possession of a city. When the victorious party finally plants its flag on the buildings of the conquered city, only ruins are left, a destroyed infrastructure, a wasteland unfit for anybody to live in.

The gift of life

In our market economy, founded on the idea of taking possession of things, perhaps we find it hard to understand that beyond it there once existed and still exists a so-called gift economy which expresses a much more primal and deeper way to relate to life. It is responsible for creating powerful bonds between people, keeping families and societies together. In fact, it’s an expression of life itself: for instance, our vegetables initially are nature’s gift from the cooperative interplay between the sun, rain, earth and the changing seasons, and only later do we turn them into commodities, into property. Similarly we ourselves are also first and foremost a wonderful gift – a living open-minded being or subject, inclined to pass on our gift to others. Until of course some enemy (of life) manages to reduce our natural stature into an artificial object.
More and more thinkers (Charles Eisenstein and Genevieve Vaughan prominent among them) acknowledge that the process of gift giving must be allowed to play a central role once again in our lives, if we want to deal with today’s problems in a structural way. I say again, because ideas about the gift definitely are not new: indigenous people all over the world, living much closer to nature than we modern people, have never forgotten its meaning and its power.  

Be the change

Although brave attempts have been made to try to transform criminals and terrorists back into ‘giving’ people, we should be wary of this. By focusing too much on them, we necessarily focus on getting rid of behaviour we do not want, thereby – as Marja de Vries has argued – unconsciously strengthening their power. We must not stop punishing criminals and terrorists for their deeds, but fortunately more and more people have started to realise that this is definitely not enough. On top of that we must all focus on our own individual lives – find out where we are on the scale of give and take – and on all the good things that are happening around us, and keep on contributing to them as much as we can. When we learn to shift our focus to the life we actually want, we can be sure – if we hold on long enough and be patient – that we will see it gradually taking shape. It comes down to what Gandhi said so beautifully a long time ago: ‘You must be the change you wish to see in the world.´

2 Comments

Wim Bonis
Posted by Wim Bonis on December 18, 2015 at 10:37

Dear Jan Michiel,

Thanks a lot for your comments. Perhaps I have generalised a bit too much about the mindset of the colonising Europeans. Right from the start there must have been individuals among them who had a genuine interest in the indigenous people they came across. I didn’t know that van Vollenhoven – who of course is remembered in the name of the Van Vollenhoven Institute in Leiden – has done pioneering research on adat customary law in Indonesia. But I do know about the existence of adat law. A few years ago I read a very interesting book about the adat law system of the Minangkabau: ‘Women at the Center’ by Peggy Reeves Sanday. Central to her argument is that women have always played an important role in it.

I wasn’t aware that this adat law system also included land rights. As far as I know Reeves Sanday doesn’t discuss them in her book. I must investigate this topic a bit further. I would be interested to know, for instance, whether these adat land rights existed within a context of a gift culture or not. Were they rights of the land – that is: obligations for the people to take care of the land – or were they rights of the people, comparable to the modern idea of private ownership? 

What I find interesting in the Native American approach to the land is that they considered private ownership of the land an alien idea, because for them the land was sacred. Although in the past in the West there have existed pieces of land which were collectively owned by the community – the so-called ‘commons’ – , today we find it quite hard to imagine that land can be considered unsuitable for private ownership. But I think it’s important that we try it anyway.

Jan Michiel Otto
Posted by Jan Michiel Otto on December 17, 2015 at 17:20

Dear Wim,

thanks for your thought-provoking and positive blog piece. You rightly write that when “European colonists settled in the New World, it did not take them long to take possession of the land. They considered it legally permitted to do this, because there was no law in existence which stated that this land belonged to the Native Americans. And in a way they were right: the Native Americans did not consider it possible to own land, because in their view they were owned by the land. Although at the time the act of taking possession of land by the colonists could not legally be considered theft or a crime, now in retrospect we can see that it actually was.”

Not all Europeans had such views about land ownership in the colonies. The Leiden professor Cornelis van Vollenhoven (1901-1933) argued successfully that the indigenous population of Indonesia, then called the Dutch East-Indies, actually had land rights. These rights were unwritten but could be verified by research into actual practices and underlying norms. This led to the famous Adatrechtschool of which numerous publications are still present in our faculty library.

Not everybody agreed, for reasons you mention in your piece. This led to the infamous Leiden-Utrecht conflict. But until today the work of this Leiden scholar has remained a source of inspiration and legal argumentation in Indonesian land disputes.

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