On constitutions and the generality principle

This is the continuation of the previous piece on the government creating and profiting from conflict. This piece was originally published at Niti Central on Dec 3rd. Here it is, for the record.

On Constitutions and the Generality Principle

In a previous piece (“Profiting from Conflict – the Monkey and the Cats”), I had used the fable of the monkey and the cats to model simple situations in which a third party gains from the conflict between two parties. A natural extension of the model showed that the third party could indeed artificially provoke, generate and maintain hostilities between the two parties out of self-interest. Even if the cats don’t really intend to, the monkey ensures that they do end up fighting.

All that is rather obvious but needed to be stated so as to make explicit a basic building block of the argument that is to follow and which relates to conflict in the political sphere. Another building block relates to the structure of the polity, which in the case of India is broadly democratic. The basic idea behind a democracy is that the people have a voice in choosing their political leaders and therefore indirectly they choose how they are governed and what public policies are adopted.

In the ideal conception of democracy, the citizens are well-informed about the choices they face and the elected members of the government are farsighted, benevolent, wise and selflessly motivated to seek that which is true, good and just. The reality, however, is not romantic at all and is quite bleak, especially in underdeveloped countries. In reality, the voters are largely ignorant and the politicians are motivated by self-interest and not public interest — even if they were aware of what public interest is, which is doubtful.

Deviations from the ideal are not limited to those alone. The greatest flaw in the scheme arises from the basic structure of rules that guide public policy, namely, the constitution, and the heterogeneous nature of the society. Homogenous societies are immune to easy divisions of the population into groups. But where there are major easily identifiable differences of religion, language, castes and regions, the society can be divided along multiple dimensions.

Differences are by themselves not harmful. Indeed diversity itself can be a major contributor to the vitality and resiliency of a people. But there has to be a shared conception of what is sacrosanct, what is worth aspiring for, what is the common good, and so on. Major disagreements or even just lack of a shared vision of the good society is definitely a major hurdle to prosperity.

Societies which have potential fracture lines can still avoid catastrophic breakdown provided the basic set of rules — the constitution — that constrain behaviour were such that it did not stress those divisions. The real danger arises when the constitution makes those fault lines explicit and laws are enacted in accordance with those rules which then discriminate for or against identifiable groups.

A word about constitutions is in order. The constitution of a state defines the broad framework within which laws are made by legislators presumably to further some interest of the state as recognised by them and authorized by the citizens either directly or indirectly. Constitutions don’t lay down the law so much as provide a yardstick to measure whether a law is within certain defined bounds. Therefore, constitutions belong to a different category than do laws. If laws are rules, then the constitutions define meta-rules — rules about rules.

It may be said that constitutions provide the direction and destination of the journey, while leaving the matter of how to get there to policies through enacted legislation. If a state is unable to meet the basic needs of its citizens, it is likely that the enacted set of laws is implicated at least in the proximate analysis. But in the ultimate analysis because it is the constitution that defines which legislated laws are permissible, bad public policies point to a bad constitution. Good constitutions are necessary for good policies but bad constitutions are sufficient for bad policies. Bad laws necessarily lead to bad outcomes.

One of the bad set of laws that have been enacted in India are those that discriminate among and between various groups in India. Especially pernicious are those that discriminate on the basis of religion and other group characteristics. They violate what is known as the generality principle.

Generality principle is well-recognized in a court of law. All citizens are treated as equals and everyone is guaranteed equal treatment before the law. But in politics, the generality principle is not applied. It leads to what the late James Buchanan, Nobel laureate economist and public-choice theorist, called the “politics by interest.”

“Politics by principle” is that which modern politics is not. What we observe is “politics by interest,” whether in the form of explicitly discriminatory treatment (rewarding or punishing) of particular groupings of citizens or some elitist-dirigiste classification of citizens into the deserving and nondeserving on the basis of presumed superior wisdom about what is really “good” for us all. The proper principle for politics is that of generalisation or generality. This standard is met when political actions apply to all persons independent of membership in a dominant coalition or an effective interest group. The generality principle is violated to the extent that political action is overtly discriminatory in the sense that the effects, positive or negative, depend on personalised identification.

Personalized identification has become something of a norm in India. Handouts are made on the basis of which religion a person professes, or caste that the person belongs to. This leads to political rent-seeking, the attempt by groups to seek differential benefits for themselves at the expense of other groups. This is not the worst of it, though. The worst part is that it fractures the polity and pits groups against each other. Politics thus becomes a zero-sum (or even a negative-sum) game in which certain groups benefit at the expense of others. What is lost in the ensuing conflict is the shared vision for the nation and a loss of communitarian values that are critical for social cohesiveness and peace. Its logical conclusion is a war of each against all or what I call a “cold civil war.”

The way out is simple to state but not easy to implement. The constitution has to prohibit discrimination and extend the generality principle to the political sphere. This kind of constitutional prohibition is not unknown. For instance, the first amendment to the US Constitution (ratified in 1791, a good 222 years ago) reads,

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Thus legislators in the US cannot pass laws that discriminate among people of different religions since doing so would be tantamount to respecting the establishment of some religions and prohibiting others. Or consider The Basic Law for the Federal Republic of Germany, the Constitution of Germany. Article 3 [Equality before the Law] reads (in part):

(1) All persons shall be equal before the law.

. . .

(3) No person shall be favored or disfavored because of sex, parentage, race, language, homeland and origin, faith, or religious or political opinions.

These embody the generality principle. Scholars have long recognized its central role in the creation of a free society, such as Friedrich A Hayek in his 1960 book The Constitution of Liberty. The point here is not what a government should do politically but rather that whatever it does, it should do generally and not discriminatorily. Held to that standard, politics would not be as bad as it is. Discrimination in the political sphere damages the social fabric and ultimately destroys the sense of shared purpose that is essential for any progress.

The problem as I had stated it in the previous piece was this: how do we ensure that the government does not act to provoke and maintain a state of cold civil war among various groups in the country? I am forced to the conclusion that it can only happen if the constitution of the country prohibits discriminatory laws. To bring that about, nothing short of a radical rethinking of what India stands for is required. The question is: can India reinvent itself?

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