There is a current controversy in India around The List which concerns a public list of sexual aggressors in Academia. There are similar events underway elsewhere, and one can view much of what has taken place since the revival of #metoo as a type of global “list.” Part of the Indian discussion is an argument against the list on the grounds that it does not respect “due process” [statement]. A detailed and sophisticated discussion of these arguments is in another Kafila article. There are certainly many valid criticisms of this list, of any mechanism of anonymous accusation, with or without accompanying evidence. But put very simply and generally, as I see it, calls for due process may conflate the final step with the first step of a certain process . There is a concept in Common Law of “Hue and Cry” [Wikipedia]. The first person to see a crime in progress raises the hue and cry and then “all able-bodied men are obliged” to assist in the pursuit and apprehension of the alleged perpetrator. The due process part comes later, when an unjustly accused person has the opportunity to prove his innocence. In this process there are also substantial penalties for raising a false alarm, for “crying wolf.”
This precursor to modern law I see as related to the idea of a Commons. The flaw with the “Tragedy of the Commons” argument so often used to justify the privatisation of just about everything is that it does not in fact describe a functional Commons, it describes what happens when a Commons is broken down, when the means a community has of protecting itself from thieves of various sorts is itself stolen. I recommend Kate Raworth’s Doughnut Economics as an excellent introduction to the Commons, besides being a complete re-invention of Economics. Just to be clear, the Commons I am discussing is emphatically not “Women” (that natural resource that men must learn to share and distribute fairly)! The Commons in question is our shared humanity, morality, ethics, that which permits us to have anything like a civilisation to begin with. When a pervasive silence is imposed on women, on men, then the Hue and Cry is never raised to begin with, and real criminals run free with impunity, which is of course the purpose of the silence. And, yes, there must always be some “false positives” in Hue and Cry, perhaps the unknown man seen driving off a herd of sheep from the pasture is in reality a relative of the owner of the herd, sent to move them to another location. Perhaps the accuser has a personal grudge or is just “crying wolf.” In this case (and, of course, assuming that the community is not so degraded as to resort to mob lynching) this fact will emerge in “due process.” That’s a risk. But the risk of permitting a far larger number of “missed positives,” real thieves, real sexual predators, to escape apprehension and punishment is a greater risk, and missing enough of them will itself destroy the Commons.