Human Values and the Legal Articulation of ‘Vagabond’

Introduction

In 1907, the Bombay government denied a ‘vagabond’ his right to his father’s pension only because he was assessed to be a ‘vagabond’. The 1907 file from the Bombay Police reads: ‘[T]he widow had only one son—a vagabond—and so the pension was granted to the widow (instead of to the son) for the support of herself and her daughter.’ Next, the reportage legitimizes the decision by citing a similar case—what the report calls a deviation from the ‘proper course’—with another widow. In the latter case, however, the widow received a pension because her two elder sons had separated from the family. Notwithstanding the gender angle, what catches my attention here is the ‘cultural baggage’ associated with the idea of the vagabond, and how it acts as key factor in the verdict of this case. The pledge that the pension of seven rupees—by no means a paltry sum in 1907—must go in favour of the widow instead of the son has been solely supported by the fact that the latter had become a vagabond.

In the lack of verifiable sources on the whereabouts of the son, one cannot but be amazed at the way one’s becoming a ‘vagabond’ has been uttered in the same breath with one’s ‘separating from the family’ and has been equated with self-ostracization in the eyes of the law. From the manner it has been reported, it follows as if like a corollary to vagabondage, ¹ that the vagabond son may now be disentitled, if not deprived, from his claim to the pension although there is no mention of him having either renounced the family or refused to support it financially. What needs asking at this point is: when and how exactly did the widow or the government conclude that the son had become a ‘vagabond’? Did the ‘vagabond’ son really ‘disappear’? Did he ever return? Does his becoming a ‘vagabond’ bear the same kind of consequences as becoming ‘separated’ from the family? Taking cues from here, this article sets out to understand: how do we unpack the social ‘constructivism’ of the a priori assumptions that cloak the idea of the ‘vagabond’ in the legal imagination? What conflates this idea with the notion of abstaining from responsibilities, familial or otherwise? Why at all is vagabondage perceived as a punishable in the eyes of the law?

Invoking a few case studies, both from India and beyond, this article points to the arbitrariness in the juridico-political imagination and the ambiguity in the legal articulation of the ‘vagabond’. How law perceives the world, in this case the category ‘vagabond’, is often grounded in systems of values and beliefs adopted by the legal practitioners: their interpretive frameworks, prejudices and dispositions, which shape the very ‘paradigms’ upon which they choose to see the ‘facts’ and frame their methods of inquiries. In other words, ‘truth’ in the eyes of the law is but ex post facto (re)construction of ‘reality’ achieved through narratorial articulation of relevant events and chosen facts. Say for example, when the Roman law deems ‘children born of prostitutes…monsters because they have…bestial characteristic of having been born of vagabond or uncertain unions’ (cited in Vico, 2015 [1744], p. 132), it embodies more—by uttering the vagabond and the prostitute in the same breath—the contemporary Roman ‘structure of feeling’, a certain mind-set towards the prostitute and the vagabond as ontological categories rather than any objective truth about the same. While the nineteenth century German school of jurisprudence viewed practices of legality as a microcosm of the nation and legislatures as mere reinforcement of the ‘national’ culture, more recent developments in the Anglo-American jurisprudence further observe law

as a distinct cultural system. Law practitioners internalize this culture in the course of their studies and professional activity, and this internalization comes to constitute, direct, and delimit the way these practitioners think, argue, resolve cases, and provide justifications. (Mautner, 2011, p. 841)

In light of this long-standing relation between law and culture, this article seeks to debunk the cultural baggage in the legal appropriation of the ontological category ‘vagabond’. Citing a number of cross-cultural cases, this article demonstrates how rhetoricity in the discourse of law in its invocation of the ‘vagabond’ tends to comply with the prevailing socio-legal conventions and is symptomatic of a tendency, rarely problematized, to assume that the category is universalizable across cultures.

The dispute had arisen back in 1964 over a wrongful acquisition of land by the Maharashtra state government to serve the purpose of development projects. The Supreme Court verdict, heard almost 50 years after the acquisition, directs the state government to compensate the legal heirs of the original landowners who were ‘illiterate’ peasants. In the process of the legal battle that had primarily started between the appellant and the Maharashtra state government eventually transfiguring to a contention between the Supreme Court and the state government, the dispute apparently functions as an arena where the relative priority between the discourse of unbridled development and that of nationalism would be determined. In fearing that the uprooted persons would vindictively turn anti-national, the underpinnings of the verdict point more towards the stake in nationalist ethos progressively giving way to bureaucratically driven transnational developmental market economy than a principle of ethical justice. The staging of the duel, however, renders exteriority to the person(s) to whom the wrong had been done. Couched in a rhetoric of welfarism and human rights, the imagery of the vagabond, as invoked here, is that of an exteriorized subject outside of both nationalism and development. This very structure of state intervention is characteristic of how it ordinarily perceives the ‘vagabond’: as ill-treated, as forced migrant, as anti-national, as anti-development, always in terms of negative predicates.

Today, the predicament of vagrancy seems to embarrass all welfare states. The seemingly interminable ‘deviance’ of wanting to live on the streets has been phrased in a rhetoric of temporal function. In the nurse’s imaginative articulation, vagrancy itself is ‘old-style’. The ‘vagabond’ has been assumed to be in contrast with or in opposition to modernity and progress. This linear idea of incremental progress—from nomadic to agrarian, agrarian to industrial, industrial to techno-digital—renders nomadicity obsolete in the ‘modern’ era. Gray was evidently happy the way he lived. That is how he wanted to continue to live. However, he was sentenced to procuring ‘proper’ housing for himself. Now, what needs to be asked is: Who gets to decide what is ‘proper’ for Gray? Who is the actual beneficiary of, in Gray’s case, the termination of vagrancy? That the law enforced Gray (without convicting him) to stay under the roofs expresses an overwhelming sense of welfarist civic responsibility. What surprises me here is how the ‘vagabond’ turns from a ‘law-breaker’ to a retrograde figure. In other words, what is at stake in this articulation is the increasingly formalized idea of ‘progress’, rather than issues concerning legality.

The seemingly humanist values in the verdict is symbolic of what is at stake in the shift away from retributive to disciplinary modes of control, and its fallout in our perception of the ‘vagabond’. Foucault (1986), while explicating the idea of ‘heterotopia’, stresses the extent to which space, in societies of control, are organized, if not monitored, in order to achieve desired outcome. The ‘retreat’ to nomadicity is at odds with utilitarianization of (urban) space. Of late, it is not rare to notice that the seats at the airports across everywhere are being increasingly fitted with armrests. Most public parks now a days, paradoxically though, have strict admission hours, beyond which they remain inaccessible. Born out of this regulatory intent is a desire to territorialize ‘social’ space into what Lefebvre (1992) calls ‘differential space’: a (re)organization of the coordinates of space and movement based upon the dialectics of (in)admissibility, which disenfranchises and expels those that are unwanted without any coercive intervention.

Now, the homeless man eventually has a home with the donations that poured in. In total, $ 159,945 has been raised so far and the fundraiser is still on. ² Having read about James’ honesty online, Whittington, hailing from about 500 miles off Boston, was so ‘mindblown’ that he started the campaign for fundraiser. While appreciating Whittington’s salutary initiative, I ask the readers to take note of the issue of distance involved here. When I say distance I mean it more as a figure of speech than literally. As indicated by the reports on the incident, the agential subjectivity of the homeless man in question is overwhelmed by a profoundly emotive sense of humanist crisis. Those who (at least reportedly) speak for the homeless man and determine that he is in want of money and/or home do so only from a distance. In other words, decisions about the homeless person have been made by those who are not homeless themselves. The modicum of altruism immanent in this remedial diagnosis of homelessness finds articulation only in a remotely distant superordinate gaze that has been projected from the outside.

What Whittington says of James—‘[t]he fact that he’s in the situation he is, being homeless, it blew my mind that he would do this’—expresses an implicit sense of awe and an element of surprise, aroused from an essentialist belief that homeless people are, or at least more likely to be, dishonest and/or financially destitute. To be precise, Whittington’s remark is less about ‘the situation’ itself, than an ‘imaginative’ correlation between homelessness and honesty, or lack thereof. Ian Hacking’s (1998) notion of ‘ecological niche’ problematizes the fine line between homelessness and vagrancy in the context of medicalization of ‘dromomania’—the state of fugue-afflicted travellers wandering—as a ‘disease’ that manifested only in the nineteenth century France, but not in other times or places. What the idea of ‘ecological niche’ alerts us to is that the figure of the ‘homeless’, or that of the ‘vagabond’, would continue to evoke cultural stereotypes, as evident in the case referred to above, unless we take into account the diverse variables that go into its making.

In banning homelessness, the state implicitly bans the conditions of homelessness: in most cases poverty, and in some ‘un-normative’ other, the very desire to be homeless. This report catches my attention for two reasons. Firstly, the nervy deliberation about the ban, as the report enunciates, obliterates history, in the sense that the historic-political conditions that create homelessness are obscured. The state wants to deport the homeless people without addressing the causes that create homelessness. Secondly, considering someone ‘needy’ unless one has a fixed address is problematic. The punch line of the article is evident in its title: ‘A Harsh Climate Calls for Banishment of the Needy’. This chronos-free, a-historical assumption pre-empts homelessness as a self-chosen lifestyle. Imbued with a totalizing political agenda, the clandestine welfarist rhetoric seeks to achieve social stratification, demographic control, sanitization and territorialization of what has been envisioned as a ‘crime-free’ space. The co-relation, as invoked in statist discourses, among homelessness, ‘heterotopic’ mobility and criminality is one of the defining problems I aim to investigate.

The issues that this incident raises—of class, criminality and welfare—further point toward the underlying politics in the discursive articulation of the ‘needy’, and by extension, that of ‘need’. Different people have different perceptions of ‘home’. Some perceive it as ‘need’; some as ‘choice’. What is ‘need’ for some is ‘choice’ for some others. The shifting definition/perception of ‘need’ and the issue of ‘cultural relativism’ involved therein come across succinctly in Adam Smith’s formulation:

By necessaries I understand not only the commodities which are indispensably necessary for the support of life, but whatever the customs of the country renders it indecent for creditable people, even the lowest order to be without. A linen shirt, for example, is, strictly speaking, not a necessary of life. The Greeks and Romans lived, I suppose, very comfortably though they had no linen. But in the present times, through the greater part of Europe, a creditable day-labourer would be ashamed to appear in public without a linen shirt, the want of which would be supposed to denote that disgraceful degree of poverty which, it is presumed, nobody can well fall into without extreme bad conduct. (cited in Sen, 2010, p. 74)

The incident in Norway illustrates how modern statecraft and techniques of governmentality—in order to optimize demographic control—collapse the subtle distinction between ‘need’ and ‘norm’, and in so doing, render ‘development’ as a fuzzy metric, rather than what Sen (2010, p. 3) calls ‘the removal of major sources of unfreedom’. This positivist perception of ‘development’—enshrined in the welfarist rhetoric pervasive in the report—stems from a certain narrow, entrenched understanding that Sen (2010, p. 74) debunks here:

The appropriate ‘space’ [of development] is neither that of utilities (as claimed by welfarists), nor that of primary goods (as demanded by Rawls), but that of the substantive freedoms—the capabilities—to choose a life one has reason to value.

It is essential, therefore, to place this statist intervention to eliminate choices—choice to be ‘homeless’ —and to increasingly ghettoize the ‘un-normative’ within the specific historic context of its evolution, and to understand the stakes involved therein. In order to better understand how the state (ab)uses ‘homelessness’ as a pretext for state intervention, the idea of ‘home(lessness)’, I insist, must be pitted against the fundamental issue of cultural difference.

This news vignette further signifies the contradictory moment in our thinking of the vagabond. The vagabond, for the ‘modern’ neo-liberal states, is not only a burden but also a blemish on the development index. Accordingly, advanced capitalism renders disposable those whose labour power it does not value. ‘What flows back to the worker in the shape of wages’, argues Marx (1959, p. 532), ‘is a portion of the product that is continuously reproduced by him.’ That the worker is responsible for the social reproduction of condition of production is a staple of the capitalist system. What is self-defeating in this particular case is that, in strategizing to harness the vagabond’s labour power the state exterminates the worker and in so doing, meets double ends: integrates into the ‘vicious circle’ of productive labour those that are eventually to be selectively gotten rid of.

The particular contradiction addressed by this strategy, however, probes beyond issues of the economy. It rather concerns an anatomo-bio-clinical penetrative intervention of power that effectively ‘circulate[s] in a manner at once continuous, uninterrupted, adapted, and “individualized” through the entire social body’ (Foucault, 1984, p. 61). It is symptomatic of the phenomenon of how capitalism evaluates the body in terms of its productivity, and thereby its potential for commercializability in order to reinforce a signifying chain of social hierarchies. While the inhibitive reservation of certain jobs for certain people bears a reference to the orthodox Hindu casteist worldview, the deeper consistencies in this recruitment of vagabonds point to, particularly in the face of the workers not informed of the work hazards and risks involved, a stealth of human capital, which Shiva (1997) calls ‘bio-piracy’. The ferocity in the nefarious treatment of vagabonds grossly violates the human condition. And, when I say ‘human’, I do not necessarily mean a particular species-form differing from the ‘non-human’. What I suggest instead is that the brutality is certainly at odds with the founding principles of liberal democracies, and quite ironically, the very ethos of justice and equality that law promises to dispense.

Conclusion

These five snippets are in fact illustrative of a central problem: the obtrusive truth-claims concerning ‘vagabond’. The articulation of the ‘vagabond’—quite astonishingly across cultures—conforms to a certain ethico-legal vis-à-vis psycho-pathological set of values, wherein the conceptual vocabulary of the ‘vagabond’ functions as referent for some larger social evil or criminality. This sweeping generalization across cultures—India, Japan, Norway, the USA, New Zealand—and the rhetoric it has been couched in clearly point to how the positivist value system immanent in the juridico-legal discourse has increasingly depleted the chronos and topos, issues of culture-specificity and that of cultural differences off the frame. I have argued elsewhere that the paranoia towards and the criminalization of the ‘vagabond’ in the context of India was inherited from a Western colonialist, positivist legal framework and its liaison with ‘instrumental rationality’ during the high noon of advanced industrial capitalism, while (quasi-religious) itinerancy, on the contrary, had always been tolerated in ‘pre-modern’ India (Ray, 2014a, 2014b). However, the uncanny conceptual overlap in the articulation of the ‘vagabond’ across the five case studies show how ideas—in this case, a narrow, utility-maximized, naturalized understanding of the ‘vagabond’ as a socio-legal subject—travel across space and are serenely appropriated by cultures, endorsed by the global capitalistic regime so endemic to the liberal democracies.

To put in Spivak’s (1996, p. 9) words, my contention here does not concern ‘the exposure of error. It is [rather] constantly and persistently looking into how truths are produced.’ In the context of a Public Interest Litigation (PIL) against the West Bengal government, say for example, the plaintiff who had sighted some women patients in the nude at the Howrah General Hospital (West Bengal, India) genuinely urges:

Let positive effort be made to provide human conditions to such patients in the hospital. Clothing is necessary for life and it is bounden duty of the hospital to provide the same. They cannot escape the same on the ground that vagrant patients are of habit of putting off cloths (online).

However arbitrary it might sound, the correlation between vagrancy and nudity (or lack thereof, if viewed from the plaintiff’s perspective), or better still, the invocation of the ‘vagabond’ as an ‘abject’ figure liminal to the purported ‘human condition’ characterizes a certain kind of truth—pervasive in the case studies above—concerning the ‘vagabond’, though always used an endonym. Societies reinforce ‘regimes of truth’ as historically validated discourses within particular times and places based on the power-knowledge nexus and axioms of normativity (Foucault, 1972, 1980). Accordingly, the legal ‘habitus’—according to Bourdieu (1984, p. 170), ‘[a] structuring structure, which organises practices and the perception of practices’—demands abidance from the actors in the (legal) ‘field’, which to say, the legal practitioners who are expected to reproduce and reiterate the dominant legal order that barely questions the ‘constructivism’ in what we perceive as (legal) ‘truth’. The point, therefore, is to see if and how we can open up the conditions of possibility for scrutinizing our ‘ways of seeing’ the ‘vagabond’, the diversities, contradictions and contingencies that render such truth possible in order to imagine alternative legal orders and diverse forms of inclusive governance.