In a previous article I wrote about people’s will being the central legal-constitutional principle of government formation and which is expressed through free election by them of their representatives. My argument was, and remains, that what happened on the night of February 8 and what we have witnessed since then violates this basic principle.
That wrong needs to be righted. Of course, it won’t be. In fact, it would be naive for anyone to think that those who have stolen the people’s mandate are likely to suddenly develop a conscience troubled by constitutional probity. If that were even a remote possibility, they would have shown some remorse. As it happens, their actions are guided by political and other interests and would not brook any moral interference.
Such wrongs are, therefore, often righted by a combination of factors, including second-order effects of actors’ actions over a period of time. That said, my purpose today is somewhat different. I want to look at the day-after, the moment when such wrongs have been mitigated and people’s will is established. Do states and societies, once that is done, develop harmonious relations and establish constitutional democracy? Yes and no.
It’s important, therefore, to problematise the idea of democracy; important because it is far easier to analytically dismiss and castigate dictatorships, military or civilian, than democracy, especially when things in many democracies are happening “constitutionally.”
Yes, because the people’s will, as noted before, is the basic principle enshrined in the Constitution and ceteris paribus that should help society form a balanced relationship with the state. In other words, I am keeping other factors constant to arrive at that happy moment.
No, because that mayn’t be the case and because the demos in democracy, if not held in check by a system of rights, could lead us to majoritarian coercion. Whether that majoritarian coercion is grounded in an ism, some political expression of religion, sectarianism or ethnocentric essentialism, it poisons the body politic and results in defeating the very purpose of what we loosely call democracy. It also fulfils one aspect, the will of the majority while ignoring a crucial aspect, i.e., the wellbeing of a minority (or minorities) within the polity.
It’s important, therefore, to problematise the idea of democracy simply as the will of the majority; important because it is far easier to analytically dismiss and castigate dictatorships, military or civilian, than democracy, especially when things in many democracies are happening “constitutionally”. But we know from history as well as from current goings-on that constitutions and laws are as good as those who are supposed to adhere to them. As the American judge Learned Hand said in his speech The Spirit of Liberty, “Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it.”
It should be evident, that this idea of liberty is not just for the rulers; it’s not only they who must abide by the rules but for every citizen because “the spirit of liberty…seeks to understand the mind of other men and women [and]… weighs their interests alongside its own without bias.” (italics added)
This forces us back into examining the concept of demos in democracy. We have accepted that democracy is about participation and participation means having a voice and the majority must speak. Not just that. When the majority speaks, it must also be heard. But this principle must rhyme contrapuntally with the principle of rights guaranteed by the constitution.
The legal-constitutional principle about people’s voice as the basis of government formation is central and important. But this principle must have a counterpoint in the principle of rights for everyone. This creates the tension that has to be diligently monitored so that neither gets out of sync with the other.
In other words, as the Federalists painstakingly tried to highlight, a state must not degenerate into coercive majoritarianism; that it is crucial to have a republic where rights are constitutionally guaranteed and cannot be trampled by anyone, whether a dictator or a democratic mob. Put another way and circling back to people’s voice, democracy is not just about demos and a political system of rule by the people. Nor is it the political expression of vox populi, vox dei. It is, most importantly, a system of rights.
This is neither a new idea nor invented by me. With greater freedoms and equality, the old idea of liberty, “the protection against the tyranny of political rulers”, was giving way to what Alexis de Tocqueville called “tyranny of the majority.” JS Mill, in On Liberty, made the same point about a new form of social tyranny from which there are “fewer means of escape” and which [penetrates] “much more deeply into the details of life…enslaving the soul itself.”
The revolutions on the continent, particularly the French Revolution, while calling into question ancien regimes everywhere and highlighting the salience of the majority voice and universal rights also put a spotlight on the problem of majoritarian violence and how to balance the idea of vox populi with rights. This was further exacerbated by what came to be called the Tocqueville effect, the paradox that improvements in social conditions and opportunities also increase social frustration.
This is why James Madison went to great lengths in Federalist 10 to present the idea of republican synthesis to avoid not only the factionalism of direct democracy but also the tyranny of the majority.
To recap: the legal-constitutional principle about people’s voice as the basis of government formation is central and important. But this principle must have a counterpoint in the principle of rights for everyone. This creates the tension that has to be diligently monitored so that neither gets out of sync with the other.
If the Leviathan is absent, society will face disorder, chaos and anarchy. At the other extreme is the despotic Leviathan, which promises the order of a graveyard, but not liberty.
Is that easy? No.
In The Narrow Corridor, Professors Daren Acemoglu and James Robinson argue that the path to liberty — a state of order and freedom — is a narrow corridor, which requires a balance between state and society. I would argue that such a balance is essential even among social groups and factions, especially in diverse societies. We are witnessing this in India socio-politically, and in Bangladesh politically, and the serpent is back in the European Eden.
If the Leviathan is absent, society will face disorder, chaos and anarchy. At the other extreme is the despotic Leviathan, which promises the order of a graveyard, but not liberty.
What must be done then? Too strong a Leviathan and it devours liberty; too weak or absent and the society breaks down. The space between these two extremes is the narrow corridor, the Shackled Leviathan. It’s not a door to a permanent state of bliss, a transportation from a state of despotism or anarchy to a state of eternal balance. It is a corridor and it is narrow precisely because keeping that balance is a constant struggle and because the institutions and the rules of the game are forged over a long time. Even so, the balance is not guaranteed.
Could it be? Acemoglu and Robinson are not sure. No one is because there are no templates, only deceptive simulacrums of the ideal.