Professor of pathos: Upendra Baxi’s minor jurisprudence

Abstract

What is Upendra Baxi’s contribution to jurisprudence in India? Baxi’s single-most important contribution to jurisprudence in India has been to infuse legal scholarship with pathos – the pathos of suffering, resistance, responsibility and care. An apocryphal reading of Baxi’s work might make us consider his passionate heft as a sentimental inflection, but it will not necessarily lead us to consider this as a jurisprudence. Baxi’s pathos endeavors to unmask law’s violence and silence about the suffering of those on the margins (even as he has offered ways of working with law); and in turn Baxi’s pathos has become marginal to the teaching and learning of jurisprudence in India. Indian legal education is marked by a simultaneous presence and absence of Baxi. His work is acclaimed for its rigorous content, but not necessarily for its innovative forms. While his politics is contingently celebrated, his aesthetics is considered removed from jurisprudential insight. It might be well accepted that Baxi writes with pathos, but does that pathos constitute a jurisprudence? In this essay, I offer some illustrations of Baxi’s minor jurisprudence by looking at three particular forms of writings which don’t get counted as part of his jurisprudential oeuvre: his lesser known works in the field of law, acknowledgements and footnotes that appear on the margins of major works, and tributes written by him on the passing of his mentors and comrades. My choice of the selected references has to do particularly with how these writings have helped me think through my own work as a law teacher and scholar.

The minor… gets cast aside, overlooked, or forgotten in the interplay of major chords. This is the downside of the minor, but also its strength: that it does not have the full force of a preexisting status, of a given structure, of a predetermined metric, to keep it alive. It is out of time, untimely, rhythmically inventing its own pulse.

- Erin Manning¹

1 ‘Testimonial to a lack’

What is Upendra Baxi’s contribution to jurisprudence in India? If one were to engage in a playful speculation about the ways in which lawyers will answer this question, what might some imaginative responses yield? If you are a practicing lawyer – I am not, so this is a hazardous guess – he will be considered a respected legal academic who has written a lot on the Constitution and the Supreme Court, but hopelessly theoretical for a practitioner’s use. If you are a judge (am I bordering on contempt?) – his stature would invite the salutation “brother”, but he will also be considered too much of a polemicist who will tear through the myth of judicial propriety. If you are a practicing lawyer of the human rights kind – which also I am not, but can risk a more favorable guess – he is a key figure who extolls the power of social action litigation, and has encouraged many law students (who have been either taught by him or have read or heard him) to not go down the path of taking up a corporate law job and dedicate themselves to litigating against the impunity with which the state and corporations perpetuate violence against the poor, despised and suffering. If you are an activist (which I have been in a past life with some remaining traces, so can speak with contingent authority), Baxi’s own activism offers strategies for how law can be used by lawyers and people’s movements for social transformation, while you continue to subject law to ethical interrogation.

If you are a legal academic (which is the skin that I have lived in for a fair bit of time now) he is a Dumbledore-esque figure² for those few in India who engage in what can broadly be called critical legal scholarship or legal theory on the left or activist scholarship. This is because within the discipline of law in India, the practice of interdisciplinary, self-reflexive, feminist and anti-capitalist scholarship that questions orthodoxy and dogmatism, speaks truth to power, and foregrounds the social, continues to be marginalized at best and dismissed as not scholarly enough at worst. For the more doctrinal and analytically oriented amongst us, who I feel are in a majority within Indian law schools and colleges, Baxi’s works on the Indian legal system, the Supreme Court, rule of law in India and Indian constitutionalism are considered worthy of citation.³ However, his sustained engagements with postmodernism and psychoanalysis,⁴ and his intellectual and political self-positioning that defies easy ideological pigeonholing (being equally critical of conservatives, liberals and progressives) has been a cause for some discomfort.⁵

I have never been taught by Upendra Baxi in person, but it would not be an exaggeration to say that I’ve been a student of his thought, conduct and writing for a long time now. I had not met him until after completing my first law degree. My interactions with him since that brief first encounter at the Critical Legal Conference in Hyderabad in 2006 (I was able to gather enough courage to go up and say hello and mumble something about the discontents of suffering-talk) have been mostly fleeting. Yet, through the years of my law education and afterward, Baxi has had an indelible presence in the way I have shaped my persona as a feminist, law teacher and jurisprudent.⁶

One of the regular ways in which such a presence can be thought of as possible is through reading his works as part of my courses. But I went to ILS Law College in Pune from 1999 to 2004 that had not introduced teaching methods like the breed of the national law schools. We were taught courses in a mode in which we did not necessarily read beyond a set textbook (actually borrowed or photocopied notes or flimsy guidebooks) for a subject.⁷ I first heard about Baxi and his work from the constitutional law scholar S.P. Sathe, who had taught Baxi during his law degree at the University of Bombay in the early 1960s. A senior professor referring to the work of a former student was in itself a pedagogical gesture that was unprecedented for me. Sathe had offered a fond introduction to his work – Baxi was teaching at the University of Warwick at that time and had just published The Future of Human Rights (2002) – calling it something akin to essential and dense (these are my forgetful approximations).

During a lecture on judicial activism, on which Sathe has written a lot,⁸ he referred us to Baxi’s now classic 1985 article “Taking Suffering Seriously”.⁹ The article was not discussed in class in any great detail except for some remarks about what is at stake in shifting the language of judicial activism from “public” to “social”. My attempts at trying to find the article online failed. It was available behind the paywall of a journal database, and I had no institutional access. For me though, that the word suffering was invoked in the context of learning the law, left a subliminal impression whose import I would come to realize only later.¹⁰

The second instance when Baxi’s name came up in class was during my law of crimes course. This was a reference to “An Open Letter to the Chief Justice of India” that he had co-authored in 1979 with three other law professors to register a protest against the Supreme Court’s acquittal of the accused in what has come to be known as the Mathura rape case. Again, this was a mere reference in class. What struck me was the action involved – the collective writing of a letter addressed directly to the Chief Justice as a way of demonstrating public dissent as lawyers within the bounds of the Constitution’s mandate. I found the “Open Letter” in the pages of a Supreme Court Cases volume in the library.¹¹ It was unlike any piece of legal writing that I had read in law college. Instead of legalese, the language was imbued with outrage. It was a passionate piece of writing that taught its readers about the larger context of patriarchal and caste oppression within which practices of adjudication and justice delivery operated. This might sound too obvious a connection – but it was more than revelatory for me as a law student, and tragically requires repeated emphasis to many of the students who I’ve been teaching law to. Those were fledgling days of my political consciousness taking shape, and reading more of Baxi’s writings – it was (and continues to be) an exciting struggle working through his language – opened up a whole new way to imagine the law, and re-imagine my role as a lawyer beyond litigating or working with a firm. Learning that activism and writing could very well be worthy pursuits that I can use my legal training to do was what has led me to doing what I have done so far.¹²

The “Open Letter”, although co-authored, bore the hallmark of a distinctive voice in which Baxi wrote that I have come to identify him with – what might be called a voice of pathos – one that distinguished him from any other legal academic in India, especially among his contemporaries. Pathos, in everyday terms, can be understood as the practice of emotional appeal through language. It is a mode of address that lends aesthetic intensity to the tragedy of human suffering when conveyed to an audience. Pathos constitutes not only the content of speech, text or image, but also a style: the tone, the use of vocabulary, the deployment of metaphors, the form of delivery. Pathos, though, is not completely synonymous with emotion. While emotion is understood to be connected to the faculty of the mind which interprets experiences to offer socially intelligible responses, pathos is ‘intense emotion involving the whole body’¹³ that generates ‘affective relationalities’.¹⁴ It breaks down logocentric¹⁵ dualities like mind/ body, reason/ sentiment, strength/ vulnerability, public/ private, lawful/ lawless, to produce ‘exalted passion’.¹⁶ Baxi’s writings – strongly aligned with a de-colonial and de-brahiminising commitment¹⁷ – are embedded in pathos as well as kindles pathos in the reader.

If I had to answer the question that I opened this essay with, my response would be that Baxi’s single-most important contribution to jurisprudence in India has been to infuse legal scholarship with pathos – the pathos of suffering, resistance, responsibility and care. An apocryphal reading of Baxi’s work might make us consider his passionate heft as a sentimental inflection, but it will not necessarily lead us to consider this as a jurisprudence.¹⁸ It might be well accepted that Baxi writes with pathos, but does that pathos constitute a jurisprudence?¹⁹ If we understand jurisprudence as ‘a practice, a craft, and a virtue: a way of attending to and taking responsibility for the full range of techniques by which [lawyers] […] make the world amenable to judgement', ²⁰ then pathos would be inseparable from ‘the phronesis of jus […], law’s consciousness and conscience’.²¹

However, if we take the apocryph seriously,²² in Baxi’s jurisprudence we will find an equally rigorous attachment to the prosaic, procedural, political and poetic in law – it is a rare demonstration that combines the material with the metaphysical. However, a plain reading of Baxi might not make us see this – which is why I have heard evaluations like “abstract” or “polemical”, with reference to his work from many students and colleagues. Which is also why Baxi might not feature in the core syllabus of a Jurisprudence or Constitutional Law course in India, unless perhaps as a supplementary reading. He will still be part of the Law and Social Transformation or Human Rights Law course, or the “Open Letter” might feature in a Criminal Law course’s module on rape – given the direct connect one would make between the subject and the content of his writings, but not because of the aesthetics of the writing and the emotional investments and ethical imperatives that are conveyed through the voice of the author.²³

So, in many ways, there seems to be a strange contradiction emerging: Baxi’s pathos endeavors to unmask law’s violence and silence about the suffering of those on the margins (even as he has offered ways of working with law); and in turn, Baxi’s pathos has become marginal to the teaching and learning of jurisprudence in India. Indian legal education is marked by a simultaneous presence and absence of Baxi. His work is acclaimed for its rigorous content, but not necessarily for its innovative forms. While his politics is contingently celebrated, his aesthetics is considered removed from jurisprudential insight. I do not intend to overstate this form/ content divide – but it is the task of paying attention to their relationship in Baxi’s style of writing that I wish to undertake in this essay.²⁴ To mark B.R. Ambedkar’s centenary year in 1995, Baxi had lamented how the ‘Indian social science landscape has disarticulated Babasaheb Ambedkar by studious theoretical silence’.²⁵ My contention is that legal research and teaching in India has extended a similar theoretical silence towards the aesthetics in and of Baxi’s jurisprudence.²⁶

Pathos is discernible in the major jurisprudential themes of suffering and violence in the lives of subaltern peoples that Baxi has written about, and is well known for. That is a corpus that I do not need to re-state for readers acquainted with his work. In this essay,²⁷ I intend to offer some fragments of what I would call Baxi’s ‘minor jurisprudence’.²⁸ Minor would not necessarily mean the opposite of major, or lesser and insignificant. A plain language approximation might mean it to be the sub-text that comes to the fore only when you look for pathos on the margins of Baxi’s writings, or in his marginal writings, or read his major works against the grain. They will show a consistent engagement with an ethic of responsibility exercised in the practice of jurisprudential knowledge production and holding the office of the jurisprudent.²⁹ As feminist law professors Amita Dhanda and Archana Parashar, whose own works have been strongly influenced by Baxi’s, have written:

While the knowledge and power nexus is now well established, it is equally important to make explicit the nexus of power and responsibility. Legal scholars who theorize the law have the power to constitute valid legal knowledge. Necessarily, they ought to take responsibility for the consequences that flow from their theories.³⁰

As I will indicate in what follows, the normative call in this quote is already embodied in Baxi’s minor jurisprudence and can provide insights into a practice of jurisprudence that can interrogate the status of modern law as the ‘state’s emissary’³¹ or a stooge of the powerful, along with a self-reflexive account of the jurisprudent’s own entanglements with networks of power and privilege.³²

2 Minor affects

The expression minor jurisprudence draws on what French philosophers Gilles Deleuze and Felix Guattari have called ‘minor literature’.³³ I had first encountered their names in a not so well-known 1991 piece by Baxi titled “Complicity and Struggle: Theory and Society” which offered an impassioned provocation: the ‘complicitous relation of social theory with the noological Indian state’.³⁴ Following up on that reference inaugurated for me a rival trajectory in the French intellectual tradition with a strong psychoanalytic bent that added more layers to Michel Foucault’s theorization of power and government.³⁵

In this section I will do two things: first, offer a brief understanding of why I have chosen to use the idea of minor jurisprudence to think about Baxi’s work. Second, I will illustrate Baxi’s minor jurisprudence as a practice of ‘affective labour’³⁶: care work that takes ‘immaterial’³⁷ forms in nurturing ‘socially engaged theoretical labourers’³⁸ who will be able to interrogate their own complicity in ‘the charmed circle of cognitive entrepreneurs operating grids of globalized knowledge systems’.³⁹

Two key characteristics of minor literature are: first, ‘everything in them is political’ and second, ‘everything takes on a collective value’.⁴⁰ As Laurie and Khan point out:

… minor literatures should not form canons anchored to Masters… The minor is not the achievement of individual heroes: it describes a multiplicity. Minor literatures make visible all the collective forces required for liberalism to produce its myths of the autonomous individual. For this reason, there is no moral hierarchy between minor and major works.⁴¹

Minor jurisprudence,⁴² thus, displaces canonical understandings of law that are traced back almost singularly to Euro-American traditions comprising the works of all white men. Yet, in offering an anti-colonial perspective, minor jurisprudence will not engage in a nativist counter-position that again favours specific individuals or civilizations as the sole repositories of Southern legal knowledge. In making visible the machinations of the collective forces in sovereignty, constitutions, rights and citizenship, minor jurisprudence reveals how the production of the autonomous individual is intrinsic to ‘state formative practices’⁴³ under liberalism and imperialism. Minor jurisprudence foregrounds the possibility of a co-habitation of a multitude of laws that do not work with a foundational law of authority like Kelsen’s ‘grundnorm’⁴⁴ or Hart’s ‘Rule of Recognition’.⁴⁵ Minor jurisprudence is not a romantic category of resistance to the hegemonic laws of colonialism, apartheid, occupation, capitalism, racism, casteism, patriarchy or heteronormativity, but an active and ethical practice of legal scholarship that repeatedly challenges, in the words of Peter Goodrich, ‘the dominance of any singular system of legal norms’ and ‘neither aspires nor pretends to be the only law or universal jurisprudence’.⁴⁶

We can see such a working of minor jurisprudence in Baxi’s argument in favor of a distinct ‘postcolonial legality’⁴⁷ that challenges ‘epistemic legal racism’⁴⁸ while at the same time troubling the idea of the postcolonial itself as ‘a hegemonic term of art’.⁴⁹ Baxi has described constitutions as a ‘will to stateness’, which is a ‘totalizing formation’ in which legal recognition of communities and rights postures as the telos of justice-seeking enterprises within liberalism.⁵⁰ Alongside, he has also kept alive a ‘dark hope’⁵¹ in the Constitution of India and by extension the Supreme Court. This is what can be called Baxi’s faith in ‘demosprudence’: ‘judicial review process and power that enhances life under a constitutional democracy’.⁵² In a similar vein, while on the one hand he has called out the neoliberal co-optation and ‘repressive’ potential of human rights (‘trade-related market-friendly human rights’), he has also re-imagined human rights futures that ‘engage in a discourse of suffering that moves the world’.⁵³ Baxi’s philosophical inheritances – from Gandhi to Marx to Ambedkar to Gramsci to Foucault to Derrida to Rawls to Sen to Nussbaum – demonstrate a committed attempt to not eulogize any singular heroic figure, but an acknowledgement of a multitudinous bricolage of traditions, which is constituted also by his learnings from the struggles of people’s movements. In his approach to legal research and teaching, while Baxi has found home in what he has called the ‘hedonist approach’ of ‘rebellious pedagogies’,⁵⁴ he has also sounded caution about the production of exclusionist ‘elite theories’ by a new generation of law institutes and scholars whose claim to criticality lie in berating doctrinal legal analysis, but not foregrounding their complicity with structures of oppression in the way higher education in general and in law is being privatized and depoliticized in India.⁵⁵

If postcolonial subjectivity is characterized by what Gayatri Spivak has called a condition of a ‘double-bind’,⁵⁶ Baxi’s work has been a performative embodiment of that. At the heart of this double-bind lies pathos. As Baxi has commented on pedagogy, research and scholarship in India:

… our espousal of transformative causes has not kept pace with the need to renovate our practices of theoretical labour… I have a feeling, at least for myself, that much of our social engagement does not inform our academic being. Even if there is a grain of truth in this perception, we must acknowledge the ‘germ gnawing at the heart of conviction’. And this should goad us, perhaps to proceed beyond the merger of heroic activism with tearful accountability.⁵⁷

Thus, the task of pathos in Baxi’s minor jurisprudence, as I read it, is one of affective labor: a form of unrecognized work that engages in an ethic of care and responsibility but does not carry exchange-value in material terms of being considered legal knowledge. Feminists have long characterized women’s domestic work as caregivers, and professional work by sex workers as affective or immaterial labor because it remains unrecognized as legitimate work, resulting in the exacerbation of gendered exploitation under capitalism.⁵⁸ Drawing on the work of Michael Hardt, affective labor can be understood as ‘the labor of human contact and interaction, which involves the production and manipulation of affects’.⁵⁹ Under neoliberal conditions of production, affective labour does not remain restricted to the private sphere alone. Johanna Oksala writes:

As the marketization and commodification of everyday life expands, people have increasingly come to rely on the affective services that they buy and that they used to receive from their families and communities… Affective labor is increasingly outsourced, and the domestic, private realm is marketized.⁶⁰

The affective labour of Baxi’s minor jurisprudence stands unrecognized because it offers gestures of care and responsibility that fall outside of the conventional interpretive frames through which most legal scholarship is written and read in India. As long as they pertain to theorizing law with a capital L, works can claim to qualify as jurisprudential. There is a strong inflection of an instrumental orientation in such practices of reading and writing jurisprudence in the Indian legal academy where training is directed to turn students into technocrats who will serve the demands of an industrious new India.

To consider the affective labour invested in Baxi’s minor jurisprudence gains particular significance in times of the consolidation of the academic-military-industrial complex that individuates academic labor, rewards intellectual depoliticization, managerialises academic relationships through metric-based evaluations, and securitizes university spaces.⁶¹ This trend has been particularly acute in the discipline of law globally for many decades,⁶² and as Baxi has pointed out time and again, in the case of post-liberalized legal education in India.⁶³

In the rest of this section, I will offer some illustrations of Baxi’s minor jurisprudence by looking at three particular forms of writings which do not get counted as part of his jurisprudential oeuvre: his lesser known works in the field of law, acknowledgements and footnotes that appear on the margins of major works, and tributes written by him on the passing of his mentors and comrades. My choice of the selected references has to do particularly with how these writings have helped me think through my own work as a law teacher and scholar. I do not offer a chronological or comprehensive overview because a claim of that nature in itself will render the idea of minor jurisprudence redundant.

The fragmented nature of my survey is motivated by a practice of what Eve Sedgewick has called ‘reparative reading’⁶⁴: reading ‘texts and semiotic practices […] in terms of their empowering, productive as well as renewing potential to promote semantic innovation, personal healing and social change’.⁶⁵ Further, reparative reading can be understood as ‘a mode of critical theory that embraces the “privilege of unknowing” and that provides theorists, readers, and scholars with a way to think about texts that does not always already, even before reading, imagine a potential outcome—a possible reading, indeed, that does not imagine a potential as even necessary’.⁶⁶ Reparative reading, thus, enables an attachment with the text through the foregrounding of interpretive vulnerability rather than interpretive supremacy.⁶⁷ The register of vulnerability invokes pathos in the way a reader cares for a text and its author, and in that ethic of care lies the task of affective labor.

In 1990, at the dawn of India’s liberalization era, Baxi wrote a short contemplative piece titled “Teaching as Provocation” that compellingly foretold how the privatization of higher education in India would solidify knowledge as a ‘Brahmanic preserve’ and reduce the ‘teacher-taught’ relation into one between ‘producers’ and ‘consumers’ of knowledge’.⁶⁸ The piece was a frank insight to Baxi’s teaching philosophy, and since the time of my discovery of it, it has remained with me as a manifesto that has inspired my own pedagogical pursuits. I teach this piece as part of my Jurisprudence course to emphasize that jurisprudence is not just a pre-existing and distant corpus of knowledge to be mastered, but whose appreciation and reception are intrinsically connected to the ethical imperatives attended to in its teaching. Despite its brevity, this is a piece with enormous depth. I will hold on some key thoughts from it here as an illustration of Baxi’s minor jurisprudence of legal pedagogy.

Drawing from his teaching experience at the University of Sydney (which was his first teaching job after completing his doctorate in USA), Baxi suggests ‘a profound inversion of roles’ to unsettle the hierarchical structure and ideology through which knowledge is arranged within a classroom.⁶⁹ This inversion requires that ‘the teacher has to be taught and the taught in turn teaches something to the teacher, the receivers of knowledge are the givers and the givers receivers’.⁷⁰ The jurisprudential lesson in this for me lies in its critique of authority as embodied in the figure of the teacher. The call for collaboration between the teacher and students in a classroom is an acknowledgement of the teacher’s ‘scholarly finitude’.⁷¹ This acknowledgement is not a tacit one, but what Baxi calls a ‘confessional activity’: ‘Every time I bite at the fruit of knowledge, I have to say, I realize the core of my ignorance’.⁷² The confession is not metaphorical. In response to the question ‘What are you good for?’ that Baxi was asked by his students, he replied:

Do not merely look at what I say; look at what I do with what I say. I simply cannot carry conviction about what I say to young minds unless they see that I mean what I say about the rule of law, human rights, human dignity.⁷³

This quote sets up Baxi’s own struggle with knowing and doing, or praxis: ‘we… are the bearers of the very modes of repression we seek to combat through scholarship…’.⁷⁴ Teaching as an exhibition of the prowess of knowledge is a demonstration of ‘specialization’ that according to Baxi ‘reinforces the authority of the knowledge makers and givers’.⁷⁵ In this, praxis becomes Baxi’s life practice for subjecting knowledge practices to an ethical interrogation for the role they play in reproducing the ‘tyranny, injustice and exploitation enacted before our own eyes even as we ‘teach’ and ‘learn’’.⁷⁶

It is this ‘dichotomy between discourse and praxis’⁷⁷ in Indian social sciences that prompted Baxi in 1987 to offer ‘an interrogation of the wildfire spread of women’s studies in India’.⁷⁸ As the chairperson of the Indian Council for Social Science Research Committee on Women’s Studies, Baxi had raised concerns about how the institutionalization of women’s studies in Indian universities can lead to it becoming a depoliticized specialization. As he wrote: ‘Suffering women are our true social scientists, not we for whom their suffering provides material for nurturing our careers and building institutions focused on ‘women’s studies’.’⁷⁹

Since its inception in the mid-1970s, born in the wake of the historic 1974 Towards Equality report on the status of women in India,⁸⁰ Women’s Studies has emerged as a critical interdisciplinary field that combines research, pedagogy and activism, with close ties to women’s movements in India.⁸¹ Alongside my law education, I had completed a postgraduate certificate from the Women’s Studies Centre at Pune University.⁸² Under the tutelage of feminist sociologist Sharmila Rege, this course trained me in feminist theory and thought from a socialist and anti-caste perspective, and introduced me to a new vocabulary of politics and scholarship to engage with both the teaching and learning of jurisprudence.⁸³ So, when I read Baxi’s concerns many years after its publication, it seemed a little alarmist and the tone carried a tinge of what might today be called ‘mansplaining’.⁸⁴ Expressing what I read as doubt laced with humour, Baxi himself noted that with the piece he had aimed at ‘shocking sisters’,⁸⁵ and admitted in an endnote that the questions raised by him were met with ‘appropriate silence’,⁸⁶ by the women scholars who were pioneering Women’s Studies at that time. Contrary to Baxi’s position of doubt, it is because of the critical nature of the feminist scholarship being produced by Women’s Studies Centres at public universities, there have been repeated attempts by the University Grants Commission to reign them in – once by trying to rechristen them as Women and Family Studies Centres, and more recently through a threat of ending funding.⁸⁷

However, a reparative reading allows me to appreciate a broader political motivation behind his interrogation that becomes relevant for our current times. Baxi’s caution offers two lessons that speak to the pursuit of ‘emancipatory knowledge’,⁸⁸ in the neoliberal university. First, his position can be read as one about the problematic consequences of institutionalizing movement politics into academic disciplines of expertise that end up severing critique from collective action.⁸⁹ Second, is a related argument against reducing the experiences of suffering of others into discourses of academic specialization for a select few. This is a concern with what can be called academic ventriloquism: potential for violent appropriation that research continues to perform by capitalizing on the voices of the subaltern and then marketing it for consumption as critical scholarship.⁹⁰ This has, in fact, been a sustained concern for Baxi with regard to the relationship between scholarly expertise and social transformation:

… there is no prospect for an empowering sphere of studies and action within the existing conceptions of uni- and multi-disciplinarism. […] Versatility, not mere specialization, is what the birth of emancipatory knowledge calls forth […] … at no stage can it become authentic without praxis.⁹¹

This observation has also found amplification in his concerns with the teaching of law as a specialist field, with particular regard to post-liberalization legal education in India which saw the burgeoning of the five-year LLB program and the growth of the national law school prototypes. As Baxi asserts: ‘… most ‘encultured’ law products of the National Law School prototypes now serve better the causes of globalized lawyering than the future of human rights in a globalizing India’.⁹² I have a palpable sense of this teaching law in India at a university founded by a philanthropic grant from a steel mining company that has been involved in a major case of corporate corruption and in the exploitation of India's adivasis.⁹³

Building on the eleventh thesis of Marx’s “Theses on Feuerbach”,⁹⁴ praxis for Baxi brings together knowing (interpretation) and doing (transformation) in many ways. A minor jurisprudential dimension of this can be seen at the margins of some of his texts. When being trained as lawyers, seldom are we taught to look at the acknowledgements section of a book, or the footnotes of a major work to be constitutive of the philosophical orientation of the jurisprudent, or how citational practices reproduce knowledge hegemonies.⁹⁵ These components remain mostly extraneous to the work in question and are understood merely as functional conventions, unless being mined for data retrieval or questioning veracity.

In the acknowledgements section of many of his books, Baxi has remained attentive to the domestic economies of affective labor and the experiences of subaltern suffering and struggles that enables and inspires him to produce his scholarship. In The Crisis of the Indian Legal System, learning from an argument by Australian feminist Anne Summers, Baxi had commented on how the gesture of dedicating a book to one’s wife is a manifestation of patriarchy and sexism.⁹⁶ The same was repeated in Human Rights in a Posthuman World.⁹⁷ The wording of two key portions in the acknowledgements in The Future of Human Rights, carry important minor jurisprudential insights:

While conventional protocols require acknowledgement of my authorship of this work, it remains a composite creation. The heavily silent burdens of the labour of this writing have been graciously as ever borne by my wife Prema…⁹⁸

[…]

I need to say that the work in your hand owes, in many ways beyond traditional labours of authorial acknowledgement, to the real authors. If there is anything creative to this work, it owes to three decades old association with social action struggle for the human rights of subordinated peoples at diverse sites, within and outside India and in particular to the heroic struggle of over 200,000 women, children and men afflicted by 47 tonnes of MIC, in the Union Carbide orchestrated largest archetypal peacetime industrial disaster. From them, and the geographies of injustice constituted by the ‘organized irresponsibility’ and ‘organized impunity’ of global corporations, I have learnt more about human violation and suffering than the work in your hands can possibly ever convey. I accordingly also dedicate this work to the suffering of the just, by no means an abstract ‘category’.⁹⁹

In a similar vein, in a footnote to Chapter 1 in the same book, as an apologia for his use of the word ‘human’, Baxi wrote:

I use the term ‘human’ as an act of communicational courtesy. Human stands marked by the presence of ‘man', and person by a ‘son’. My preferred non-sexist version is, therefore, a combination of the first letters of both words: ‘huper’. I await the day when the word ‘huper’ will replace the word ‘human’.¹⁰⁰

As a semiotic practice of pathos, the sharing of authorship with a people’s movement, acknowledging the contradiction in dedicating a book to one’s partner, and explaining the patriarchal structuring and limitations in the English language, are crucial to a critique of authority in jurisprudence. If we read these as Baxi’s affective labor, they offer a training in reading with care and responsibility that make it difficult to respond to acknowledgements and footnotes with ‘facile gestures’¹⁰¹ and reformulates the writing of jurisprudence as ‘above all theory which is reflective about the positioning of subjects in the construction of knowledge’.¹⁰²

An articulation of the scholar’s self-positioning in the practices of the production of knowledge also ‘creates specific relationalities that generate assemblies of social relations’.¹⁰³ The above instances have pointed at Baxi’s acknowledgement of his affective ties with his wife and his engagement with subaltern peoples’ struggles.¹⁰⁴ A deep account of such relationalities can also be found in the many tributes that Baxi has written about his mentors and comrades on their passing.

When I had heard about Baxi from S.P. Sathe in the early 2000s, I had no inkling of the fact that as a student at the University of Bombay, Baxi had ‘rebelled against [Sathe’s] ways of teaching’ in class.¹⁰⁵ This I learnt on reading “Adieu, Satyaranjan Sathe”, Baxi’s tribute to his former teacher. As Baxi recalled:

Of course, he was outraged at my interlocution of his pedagogic authority. However, what eventually mattered for both of us were the ways in which Satyaranjan converted this contestation into a resource for vastly improved methods of law teaching and his reiterated public acknowledgement of this episode as providing further lessons and messages for innovating critical pedagogy. In thus continually recalling with warm affection my acts of rebellion, Satyaranjan thus sought to nourish dialogical, rather than authoritarian, modes of intergenerational transmission of knowledges. This, I believe, constitutes an enduring Sathe legacy…¹⁰⁶

The sole surviving signatory to the “Open Letter”, in 2014 Baxi delivered the 1st Lotika Sarkar Memorial Lecture titled “Unlearning the Law with Lotika Sarkar”. In a tribute laced with humour, sadness, and gratitude, Baxi said:

… as her students they first learnt the two, and true, meanings of academic freedom: the freedom to teach and the freedom to learn. She emphasized the latter with students and the former with Deans and Heads! And Lot encouraged the students to learn the law as they wished; for her, the syllabus never cast in stone was but a mere opportunity to co-learn… ¹⁰⁷

[…]

In a sense I was her student…¹⁰⁸

Both tributes are not hagiographical, but rather what can be called jurisographical: an account of the ‘duties that attach to the persona of jurisographer… to take care of the many forms and sources of writing of jurisprudence the jurisographer inherits…’¹⁰⁹ In keeping alive the legacies of Sathe and Sarkar and Baxi’s inheritances of them, the tributes continue a dialogue infused with disagreements, reminisces, revisits, and absences.¹¹⁰ The tributes mark an exemplary demonstration of a minor ‘jurisprudence of generosity’.¹¹¹

3 A tragic celebration?

The festschrift is a curious artefact and event of academic writing. It honors the work of a veteran scholar (on most occasions a man¹¹²) at a particular time in her life through the self-aggrandizement of the contributors. It curates a community of inheritors who stake claim to a legacy of (waning?) greatness. The community shares the inherited glory through the individual attachment to the repertoire of the honored scholar, and yet each member of the community competes for authentic proximity as the most deserving inheritor. The pieces that constitute the festschrift maintain fidelity to the thoughts of the scholar being honored, while bringing in subjective insights (both as valorization and disagreements) into her life and works. It claims coherence of convention, but remains inconsistent in treatment.¹¹³

There are two motivational questions that ought to be responded to while putting together a festschrift. In the case of the instant volume, these are: “Why Baxi?” and “Why Now?” The first one is less controversial of the two. The massive influence of Baxi’s work in jurisprudence in India and globally, and also on social theory in general, is more or less settled. There might be a debate about the nature of the influence, but few would disagree that he is a towering figure in Indian (critical) legal scholarship. The second question can have an easy answer, and then a very difficult one. 2018 marks Baxi’s 80th birthday – a worthy occasion to honor the person, his life and works. That is the easy and happy response. Baxi’s work has continuously made us confront the ‘dark times’¹¹⁴ that we have been living with, inheriting, and bequeathing. In trying to answer “why now?” a confrontation with this dark side cannot be wished away. In both honoring Baxi and confronting the horrors of human suffering that his life’s work bears witness to, this festschrift becomes at once a celebration and a tragedy. This sense of tragedy is further exacerbated in the banality of violence that we see around us, and live with, even as we honor Baxi.

In the dual characterization of this festschrift as a tragic celebration, I am struggling with a set of contradictions. What does it mean to read Baxi’s minor jurisprudence in a volume honoring him as a major figure in Indian jurisprudence? In casting myself as a successor of the Baxian legacy, might I be (unwillingly) reifying the law of the father? As Austin Sarat writes: ‘fatherhood is one term through which law is mythologized and through which fantasies and anxieties about law are expressed’.¹¹⁵ The festschrift form lends itself to an ‘agonistic intimacy’¹¹⁶ between my fantasy of staking claim to Baxi’s legacy, and my anxieties about mythologizing him. It is a performance of a citational captivity – you are meant to repeat references to the (male) persona of scholarly prowess that you are honoring, even as you desist deification. A ‘citational relation’, points out Sara Ahmed, ‘is often paternal’¹¹⁷. In attending to Baxi’s minor jurisprudence thus, I as the reader, and Baxi as the author, are both rendered fractured,¹¹⁸ joined through a relationship of transversal vulnerability¹¹⁹ that is trying hard to disavow paranoid fraternity and embrace an ‘ethic of listening’.¹²⁰ I would not like to romanticize and exceptionalise Baxi’s minor jurisprudence; yet in his practice of ‘ordinary ethics’¹²¹ he emerges as an extraordinary figure of wisdom and foresight.

Baxi’s own negotiations with this authority-vulnerability continuum has been expressed thus: ‘how is it that power of some people becomes the fate of innumerable others?’¹²² All of Baxi’s writing, teaching and activism has been a struggle with finding answers to this question, taking seriously the ethical imperative related to authorizing oneself to be able to ask and answer this question, and thinking about the repeating conditions that offer no escape from the tragedy of this question. This struggle features in the pathos with which Baxi’s writings have engaged a range of ‘critical events’¹²³ and issues, from aboriginal land rights in Australia to the Emergency to the Bhopal gas leak, violence against women, modern gulags, the war on and of terror, the Gujarat pogrom, caste atrocity, human rights, to name just a few.

My attempt in this essay has been to reparatively read the minor gestures in Baxi’s jurisprudence. These gestures, of which I have offered a fragmented survey, can provide affective resources that can help us, at the least, to narrate accounts of the failure that the co-habitation of celebration and tragedy – a ‘negative moment’¹²⁴ – presents. Upendra Baxi’s minor jurisprudence can teach us the responsibilities that are incumbent upon us as jurisprudents in these times of extreme flux: one marked by a perverse coexistence of acute precarity and spectacular affluence. Baxi’s minor jurisprudence can train legal academics to be affective laborers and reparative readers who, instead of appropriating the vulnerability of the suffering and claiming interpretive supremacy, will build relationships through their shared experiences of vulnerability.

I will force an ‘inconcudable’¹²⁵ end on this essay with a quote by Baxi that infuses pathos in these pathetic times. For those of us who teach law and are struggling with our own double-binds between knowing and doing, complicity and contamination, celebration and tragedy, this can be a talisman:

For me, being a teacher in India is to be a deeply fractured, deeply wounded being, constantly in throes of transition, forever being evicted from utopias and yet, forbidden by history from desisting from struggles here and now for whatever ‘justice’ against injustice.¹²⁶

A luta continua.