Laws cannot make a country democratic
There is a standoff between the Supreme Court and the government about who has superior powers in a democracy. In many democratic countries, including the US, citizens have lost confidence in their national elected assemblies and their supreme courts to represent the will of all the people.?
Let's not shout that democracy is in peril, and expect our courts and elected politicians to make us democratic. Ultimately, it is "we the people" who must behave democratically towards each other. Laws and courts cannot mandate how we think of each other.?
In my article in The Tribune, I explain this conundrum for all constitutional democracies. I also explain why we must learn to listen deeply to people around us who, in our minds, are not like us. Because then only will we learn who "We" really are, and also learn to respect each other in spite of our differences. Which is true democracy.?
The full text of the article, and a link to it, are below.
“WE THE PEOPLE” MUST KEEP OUR DEMOCRACY ALIVE
?India’s government and Supreme Court disagree about the roles of an elected Parliament and the Court in upholding the Constitution. The justices say they are responsible for protecting the ‘basic structure’ of the Constitution. The government says the people, through their elected representatives, have superior rights in a democracy, and the Parliament’s powers cannot be reduced by self-appointed justices.
?Pew Research Centre surveys, and the Global State of Democracy Report, 2021, reveal that two-thirds of citizens in democratic countries do not trust institutions such as elected assemblies and courts to represent their will. They include the U.S. which is ostensibly leading a global fight for democracy against autocracies. Citizens are frustrated with the gridlock in governance with different interpretations of their constitutional rights. Gun laws are not changed in the US, despite growing concerns about the proliferation of weapons, because the right to arms was enshrined in the Constitution over two centuries ago. Abortion laws have been reversed by a conversative Supreme Court to protect the right to life of unborn infants; laws that an earlier, liberal Supreme Court had endorsed to protect the lives of their mothers.
?What “We the People” want evolves, as “We” evolve, as Lynn Hunt, professor of history, explains in “Inventing Human Rights: A History”. Therefore, rights codified in a constitution written at an earlier stage of our history may not reflect what We the People want today. For example, concepts of human rights are being expanded in many countries to include the equal legal rights of all LBGTQ citizens because citizens have become tolerant of different sexual orientations that constitutional writers (and the people then) had considered abhorrent.
?Abraham Lincoln said in 1864, “We all declare for liberty; but in using the same word, we do not mean the same thing”. 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. Because people, not courts, shape the norms—the “unwritten rules”—of their societies.
?The separation of powers between the legislative assembly, the judiciary, and the executive, and the checks and balances amongst them, are essential for sustaining democracy. Neither the Supreme Court nor the elected Parliament is superior to the other when it comes to deciding what “We the People” want. That right must remain, finally, with the People. Even a majority in an assembly of elected representatives cannot be allowed to pass any legislation that takes away this fundamental right from the people.
?What do “We the People” want
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 preferences for candidates in elections to represent them cannot reveal their consensus about fundamental needs.
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?Economists are unhappy when the Supreme Court rules on economic policies. They say the Supreme Court is not qualified to judge in economic matters. Economists are also unhappy with “populist” measures undertaken by elected state governments which economists believe are not good for the economy. Economists themselves cannot explain satisfactorily why are loan right-offs for farmers unhealthy for the economy whereas writing off losses of large companies to get investments moving is good economics??And when is a “revadi” a justifiable subsidy and when is it a vote-catching measure? What notions of justice should apply in economics to determine good or bad economics?
?Parliaments and Courts must grapple with conflicting concepts of good economies and good societies. The economy must be recoupled with society. Protection of property rights is a fundamental duty of the law. However, as concepts of human rights evolve, judges, and economists too, must apply evolving views of human rights to property rights. Therefore definitions of “capitalism” and “socialism” must evolve.
?Learning to listen to people not like us
Constitutions, courts, and elected assemblies are not all that a democracy needs to function. Genuine democracy is government of the people?by?the people. People, not courts, shape the norms. Democracies come alive outside courts and elected assemblies. People who belong to different political factions, who practice different religions, and who have different histories within the history of their nation, must listen to each other and learn to live together democratically. Therefore, what healthy democracies need most of all are ongoing processes of democratic deliberations among citizens.
?Far-sighted leaders of the Muslim community, who have formed the Alliance for Economic and Educational Development of the Underprivileged (AEEDU), have built a bridge with leaders of the RSS. They are respectfully listening to each other’s concerns. Such initiatives will repair Indian democracy which is sadly being “broken into fragments by narrow domestic walls” (in the words of Gurudeva Tagore, the author of our National Anthem).
?Consensus on what ‘We, the People’ want, which is the foundation of all democracies, will come about only when people listen to each other. It is imperative for democracy that “People ‘Like Us’ listen to ‘People Not Like Us’.
?It is time to press the pause button; put our smart phones on silent; shut out the tweets, trolls, and soundbites. It is time to listen to the caring in our hearts, and to the voices of people not like us. Then, we will learn and find solutions for living together on our shared Earth.
?Arun Maira
Author of?Listening for Well-Being:?Conversations with People Not Like Us
January 30, 2023
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Well organized Executive Assistant
1 年Well said Sir!