Letters to law students #39: What is democracy for?

Letters to law students #39 What is a democracy for??

My dear law students

Just a few days ago, we celebrated Constitution Day. Democracy always gets a good outing during Constitution Day celebrations. Many people believe that what is celebratory about the Indian Constitution is that it embodies democratic ideas. Yet, the idea of democracy is actually quite vague. I want to investigate this further with you, as our understanding of democratic politics also has a knockdown effect on our understanding of the nature of the law.?

The conception of democracy that is most popular, what I will call a common good conception, has a certain idea of what democratic politics ought to be, a certain idea of what politicians ought to be if such a democracy were to have any chance to succeed, and a certain idea of how citizens ought to behave with each other. This conception believes that democracy exists to further the common good of a society such that everyone, and in particular, the vulnerable sections of the society, get a chance to prosper and live a life of dignity. The politicians that can power this democracy ought to be statesmen who have the vision and zeal necessary to be wise and empathetic. The citizens in a democracy ought to believe in the idea of fraternity, and that of a shared political and social destiny. The partisans of the common good conception of democracy do not deny that democracies today fail the ideals I set out above, but believe that democracies around the world are best understood as striving towards these ideals, with varying degrees of success.?

There is another conception, what I call the conflict management conception. It is no less idealistic, but its centre of gravity is neither the politicians nor the citizenry but the judges in a polity. This conception also places politicians in charge of our lives. But it does so because it considers our society to be irredeemably in conflict, a society with violent fault lines on the basis of class, caste, status and innumerable other factors.??Democracy is the best mechanism to manage this conflict. It allows all persons, and in particular, people who are nor powerful enough to take care of their interests individually, to come together with like minded people and advance their interests. In a democracy, the ability to associate with people and to advance opinions freely enables interest groups to push their respective agendas forward.?

Politicians are needed in this conception, not for their wisdom or their statesmanship, but for their ability to represent best the interest groups they serve. It is no easy task, for it takes a certain amount of dexterity, ambition and ruthlessness to ensure that the people backing you get the biggest bang for their buck. Naturally, the conflict ridden circumstances in which democracy arises and the ability of politicians to manage and yet take advantage of these conflicts make for a combustible combination, with the possibility at all times that politics will lead to tyranny and coercion. We are in conflict and we have placed our lives in the hands of people who are in the business of exercising power and control over others. The most pressing issue in this conception of democracy is how to control the use of coercion in politics. State violence, even when it is under the surface, is dangerous and needs regulation precisely because it is always a threat and needs constant vigilance to ensure it does not infringe on the rights of citizens.?

In this conception, only one group of people stands between state coercion and citizens-the judiciary. One can’t depend consistently on the citizenry because self interest usually tends to trump respect for other people’s rights. A society might have great culture, art, literature and architecture, and its citizens might be industrious and talented, but their focus on their individual and group development and their internecine conflicts inevitably eats away at their ability to see beyond their immediate advantages. The politicians might be good at co-ordinating behaviour and striking difficult bargains, but they are not very good at self restraint. The immense power that is placed in their hands is always in danger of being used against the citizens. A functioning democracy, if it’s serious about preventing abuse of power, needs to nurture an institution that will consist of people who are fiercely independent and are capable of delicate ethical and moral judgment. These we can call judges, in the modern tradition, but the nomenclature really does not matter. The conflict management conception of democracy treats politics as necessary but also as a problem that needs to be contained.?

My dear law students, you decide which conception appeals to your sense of what democracy is for. Whichever conception you choose, your idea of the nature of the law will follow suit. If you choose the common good conception, you will look at the law as mainly legislation driven, with judges coming in to fill up the gaps. If you choose the conflict management conception, you will think of the law in terms of principles that judges apply in the cases that come before them, and these principles are meant to protect the human rights of all citizens. In any case, remember that politics and law are closely interlinked. Don’t think of the law as some island by itself. Not only will you be misled, you will graduate from law school and mislead others as well.?

Prof Nigam Nuggehalli

Registrar?

NLSIU?