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People, not courts, shape norms 

People demand change in the U.S.’s gun laws, in Newtown, Connecticut. A

People demand change in the U.S.’s gun laws, in Newtown, Connecticut. A | Photo Credit: AFP

The BJP’s leadership says that disputes about mosques, temples and rights to worship, which are tearing up Indian society, will be settled by courts according to the Constitution. Pew Research Center surveys and the Global State of Democracy Report, 2021, reveal that two-thirds of citizens in democratic countries, including the U.S., do not trust institutions such as elected assemblies and courts to represent their will. Another horrific assassination of school children in the U.S. has caused the U.S. President to throw up his hands. The U.S. Senate is divided, and the Supreme Court continues to refer to the Second Amendment of the Constitution to disallow any dilution of a fundamental right of citizens to bear arms. The looming possibility of the U.S. Supreme Court denying women their rights to reproductive health is dividing the U.S. further. In India, laws regarding citizenship and sedition are being used to curb the fundamental rights of citizens and are being contested in the courts.

The U.S. and India are democracies founded on written Constitutions, which state the democratic principles adopted by ‘We, the People’ living within the geographical boundaries of these countries. The Constitutions define the institutions which are required to maintain democracy — principally elected assemblies and independent courts.

Conceptions change with time

The U.S. and India must lead the spread of democracy around the world, U.S. President Joe Biden declared at the Quad summit, to contain threats from China’s and Russia’s authoritarian governments. Both India and the U.S. need to put their own democracies in order. The leaked draft judgment by U.S. Supreme Court Justice Samuel Alito regarding women’s rights to abortion for reproductive health highlights the fundamental problems of democratic governance in all constitutional democracies, including India.

The draft raises questions about conceptions of human rights. How are concepts of human rights formed? Which institutions have the constitutional rights to enforce them? Justice Alito says the fundamental question before the court must be answered systematically in steps. One, whether the reference to ‘liberty’’ in the Fourteenth Amendment of the U.S. Constitution protects a particular right; two, whether the right at issue in this case is rooted in the nation’s history and tradition; three, whether it is an essential component of ‘ordered liberty’; four, whether a right to obtain an abortion is supported by other precedents.

Conceptions of ‘freedom’, ‘liberty’ and ‘human rights’ are not cast in stone. They are always works in progress. All citizens were not granted equal rights in the U.S. Constitution in 1787: women and coloured people obtained these rights later; and people of various genders have begun to be treated equally only in this century. These new rights, not explicitly mentioned in the U.S. Constitution, have emerged with struggles, from an ongoing civilisational dialogue.

The Alito draft explains why courts and elected assemblies find it difficult to determine the will of the people. “We all declare for liberty; but in using the same word, we do not mean the same thing,” Abraham Lincoln had said in 1864. Moreover, written constitutions, which courts must follow, state what the will of the people was at some prior time in history. The will of the people changes as ideas of human rights and liberties evolve. Therefore, good democratic governance requires a robust process for those who govern the people to continuously listen to the people. Also, the people must listen to each other; people ‘like us’ must listen to ‘people not like us’ for consensus on what ‘We, the People’ want, which is the foundation of all democracies.

Citizens want many things and may not agree about everything. The Arrow Impossibility Theorem, propounded by the economist Kenneth Arrow, is a fundamental dilemma in social choice theory. The Impossibility Theorem proves that there is no voting method in which voters, by merely expressing their votes as ‘yes’ or ‘no’, can produce a unanimous outcome, no matter how many rounds of votes there are. The mathematical problem here is that individual voters’ preferences cannot be sliced and diced; nor can the choices before them be made too simply as ‘this’ or ‘that’ to enable easy voting and counting (as done in referendums such as Brexit).

Human beings’ preferences are formed by combinations of many factors in their histories and their present circumstances; also, by what they value most, which may not be the same as other citizens. Therefore, their preference for a candidate in an election to represent them cannot reveal their consensus about fundamental needs. Outcomes of elections in first-past-the-post systems make the reading of the tea leaves even harder, when candidates, who do not even represent an electoral majority, win.

Democracy is a process of ‘ordered liberty’. It requires institutions to enable the will of the people to be implemented with checks and balances amongst them. Elected assemblies and independent courts are institutions for governance of the people. Constitutions lay down their powers. Neither must usurp the other’s powers. Justice Alito fears that the U.S. Supreme Court has transgressed the role of elected state assemblies. This is also a criticism of the Indian Supreme Court when it is spurred to act by public interest litigations.

Preserving democracy

Institutions are the means with which societies realise their aspirations. Constitutions, courts, elections, and assemblies are not all that a democracy needs to function. Institutions, Nobel Laureate Douglass North explained, are not merely constitutionally designed organisations; social norms are the fundamental drivers of institutions. Genuine democracy is government of the people by the people. People, not courts, shape the norms.

Democracies live outside courts and elected assemblies. People who belong to different political factions, practise different religions, and have different histories within the history of their nation must listen to each other and learn to live democratically together. Therefore, what healthy democracies need most of all are ongoing processes of democratic deliberations among citizens.

The right to freedom of speech is cited as a fundamental right in a democracy. Therefore, no one, not even the government, should curb the right of anyone else to say what they wish to. Technology was expected to provide solutions by enabling everyone to participate in debates about what matters to all. However, social media has resulted in a cacophony of voices and more divisions. Governments and courts in democracies are struggling to rein in social media democratically.

India’s beauty is its diversity. Democracy’s essence is the right of diverse people to live as equals. Citizens have rights in democracies. They have responsibilities too. While democracies must give every citizen the right to speak, democratic citizens have responsibilities to listen to others’ views too. The design of democratic institutions has so far concentrated on vertical structures, for upward representation and downward governance. To preserve democracy in this century, reformers should focus on designing lateral processes for democratic deliberation amongst citizens, founded on the discipline of listening to ‘people not like us’.

Arun Maira is author of Listening for Well-Being: Conversations With People Not Like Us


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Printable version | Jun 6, 2022 7:49:33 am | https://www.thehindu.com/opinion/op-ed/people-not-courts-shape-norms/article65496774.ece