Rule of law, anyone?

Negotiated and reciprocal agreements between communities are vital to underpin any law

From Left to Right, from Liberal to Conservative, there is a touching faith in the rule of law as the answer to all of society’s problems. They may differ on what these rules ought to be, but they agree that the rule of law must prevail.

They are confusing something that is nice to have with something that is assumed to always work. The truth is that the rule of law cannot work in all circumstances, and there is no actual proof that it does so in reality. A few examples will prove that point.

Just last month, the US Supreme Court over-ruled a half-century-old law that made abortion a part of women’s rights. Now states will determine what these rights are on their own. In the same country, there will be multiple rules of law. In April, after Muslim groups in Sweden rioted over alleged blasphemy by one politician, Prime Minister Magdalena Andersson said that integration had failed; mainstream Swedish society and its immigrant citizens lived in “parallel societies”. In 2018, former German chancellor Angela Merkel acknowledged that there were no-go zones for the law enforcement agencies — a reference to Muslim ghettos in some cities. Between the late 1990s and 2013, hundreds of British teenage girls were “groomed” by largely Pakistani gangs, and the police, despite knowing about it, did not act for fear that they would be judged racist or Islamophobic.

In India, we know that the rule of law does not work when a Supreme Court Bench — no less — can tell us without batting an eyelid that one provocative statement by a former Bharatiya Janata Party spokesperson was responsible for the murder of another in Udaipur. Some 20 states do not allow cow slaughter or the transportation of bovine animals without permits; but the police do not, for the most part, act, leaving it to vigilante groups to undermine the law or its implementation. Laws banning religious conversion exist in some states, but conversions have not stopped. A law exists to prevent wholesale defections without resigning from the political party you currently belong to, but defections happen anyway. We saw that in Maharashtra recently.

The point of beginning this article with references to foreign examples is simple: We know that the Indian state is often unwilling to implement the law fairly or effectively, but we also assumed that rich countries, especially those exemplars of democracy, the Nordics, were much better at it. Not quite. For, as the Swedish PM said last April after mobs attacked Swedish policemen, wounding scores of them, we live in “parallel societies”. When you live in alternate social realities, you also expect differentiated laws. The rule of law fails.

The rule of law works under two or three important conditions that don’t last very long in modern societies, where change is rapid. First, there must be a very strong group of interests that must want the law legislated and enforced. Second, the state itself must be powerful enough to be able to do so. And third, when societies change, the law must be flexible enough to quickly change too. But when large communities live in “parallel” universes, this change will not happen fast enough.
 

Illustration: Binay Sinha

A fourth point is the one this writer would wish to emphasise. When different social groups exist and cannot agree on what the law should be, the rule of law cannot work except on the basis of agreements between groups in specific geographies. This implies that in order to be effective laws must also take into account what specific groups are willing to agree on between themselves before legislating them into reality.

For example, if Hindus and Muslims do not agree on the cow slaughter ban, or namaz in public spaces, or the playing of loud music near mosques, no neutral law can indeed work — as we have repeatedly seen in India.

This leads me to a related point: Laws hardcoded into the Constitution or the Indian Penal Code are dead letters because the underlying communities which are supposed to comply with them do not agree, or will not cooperate in their implementation. There can be no rule of law as separate from what the people, or a large section of the people, want from it.

The short point is that, for laws to work, there has to be community-level negotiation based on give and take. You cannot legislate rights that are universal, and then expect communities that don’t want these laws to apply to them to comply. In Sweden, free speech laws allow politicians to blaspheme, but its immigrant societies do not agree. The only way to have an enforceable law is for both the immigrants and Sweden’s mainstream politicians to agree on what both will do if blasphemy happens, and immigrants agree on which line they will not cross. Right now, there is a presumption that the rule of law, as defined by mainstream Swedes, will apply, but it does not quite do so. Forget immigrants, in the US even members of the same racial group — Whites — indulge in cancel culture based on whether you are liberal or conservative. If liberals do not want to break bread with conservatives, they are undermining the basic consensus needed to make any democracy work: Respect for disagreement and diversity.

Contentious laws work best when they are negotiated and reciprocal in nature. If Hindus and Muslims agree that there will be no ban on cow slaughter (a concession by Hindus, that is) there has to be an equivalent or significant concession made by Muslims for any agreement to be honoured. And vice-versa. If Muslims agree to respect a ban, Hindus need to make it worth their while to comply. If we need castes to work together, the forward and backward castes must negotiate a two-way deal that both sides believe is fair to both. Or we are asking for more caste-based discrimination and violence.

Making concessions non-reciprocal was the mistake made by the founding fathers of the Indian Republic, and one-sided concessions resulted in more bad blood between communities rather than peace and amity.

At the global level, nuclear peace held during the Cold War because both the US and the Soviet Union stuck to their part of the deal based on reciprocity and a balance of power. But other countries that were given a bad deal decided that they would not respect the one-sided non-proliferation treaty, given their own security concerns. Globalisation is unravelling because it has resulted in unfairness to some. Ultimately, the rule of law fails when outcomes are iniquitous.

The conclusion: The rule of law is a good thing to have, but it must ultimately be backed by groups and communities working out their own arrangements for peace and respect for the law based on reciprocity and give and take.

The author is Editorial Director, Swarajya magazine