Justice for all requires listening to all
AMID a geopolitical churn around the world, institutions of global governance — such as the UN and the World Trade Organisation — stand paralysed. In democratic countries, elected governments are crippled by partisan politics. Courts are grappling with public concerns they are not equipped for.
The Overton Window, also known as the window of discourse, is a model for understanding how ideas change in societies. Politicians are selective about what policy ideas they can support — they generally only pursue policies that are widely accepted in society as legitimate policy options. These policies lie inside the Overton Window. Other ideas exist outside it, but politicians risk losing popular support if they champion those.
World-systems analysis, an approach to social analysis and change, explains the construction of a world system of power and ideas. Immanuel Wallerstein and his co-authors (Randall Collins et al) explain in ‘Does Capitalism Have a Future?’ how a world system of dominant ideas and hegemonic power emerges. They say, “One state gains advantage simultaneously in all three forms of economic activity — production, commerce and finance — and gains a significant military edge emerging from its success in a previous struggle. To cap its overall position, it asserts its cultural dominance and its defining version of the geoculture.” The hegemonic power then declines with a redistribution of ideas from the periphery to the core when ideas that were relegated to the periphery come around again.
Concerns about inequality, and private versus public property rights, had been pushed into the background by a capitalist ideology of free markets and borderless trade along with private enterprise and minimum government — the Washington Consensus — which swept across the world from the 1990s. Socialism, with the visible hand of the government rather than the invisible hand of the market, and its emphasis on human welfare, was denigrated. The Overton Window has opened again. Concerns about colonialism and inequity among countries have arisen again; also about unsustainable and inequitable economic growth. Alongside these, anger is increasing against politicians within many global champions of democracy — the US, Europe, and India.
Institutions at the top in democratic states — elected governments and the courts — check and balance each other. They are expected to find solutions to complex problems and provide justice to all. But they are unable to do so. Reforms in India’s agriculture sector and the labour laws that affect crores of citizens were passed by a majoritarian Parliament without a debate. The reforms are stalled. A nine-judge Bench of the Supreme Court is re-examining its 1978 interpretation of constitutional rights to private versus public property. The court has also acknowledged the fundamental right of all citizens to freedom from the adverse impacts of climate change. With this, the court has admitted, jurisprudence is entering new territory.
The liberal ideology that individual rights are superior to a community’s rights, and that every individual has the right to be whatsoever she or he chooses to be, has grown along with the European Enlightenment since the 17th century. From Europe, it spread around the world. Its ideas accumulated hegemonic power in academia and social and political discourse. Modern science also developed and spread with the European Enlightenment. In modern science, complex systems are broken into parts. Science advances in specialised silos with experts who know more and more about less and less. None understands the whole.
The scientific establishment and governments are guided by knowledge in bits and bytes. Governments, philanthropists and scientists focus on the improvement of bits of systems, with the belief that if the bits are improved, the wellbeing of the whole system will improve, whereas the health of complex living systems requires all their parts to be healthy. “Leave no one behind”, a strategy for the wellbeing of all, is based on sound systems science. If any part of a human body is unhealthy, the body becomes unwell even if all other parts are in robust health. Therefore, the right to life of all nature’s parts — its trees and plants, insects and animals, mountains and rivers — is founded on sound systems science.
Written Constitutions record the aspirations and norms of a society. The US, French, and Indian Constitutions begin with lofty ideals of fraternity, equality and liberty. 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 rule of law and speedy justice make countries attractive for financial investors and citizens. Investors and citizens have different needs and may have different expectations of the law. Democratic governance cannot be only a government of the people (elected by them) or a government for the people (providing them welfare). It must also be by the people. Justice for all requires those who govern to continuously listen to all the people.
On top of the pyramid of democratic governance are constitutionally created institutions — the executive and the judiciary. At the bottom is the open public sphere of civil society, the media and the protests on the streets. The public sphere has become more noisy and more divided due to social media. The institutions on top are unable to understand and solve the complex problems the public sphere demands they must.
Citizens with diverse needs must listen to each other to come to a consensus about the type of society they want to create for themselves. Courts and experts within their narrow specialisations cannot do this for them. Democratic governance requires a strong middle layer to hold a democracy together. The missing middle layer in 21st-century democracy is the processes for democratic dialogue among citizens in which they listen to each other and begin pre-digestion of ideas, and convert their contentions into consensus to help the institutions perform their constitutional responsibilities.
