The real outlaws

The real outlaws by Sauvik Chakraverti

The New Indian Express Wednesday, September 12, 2007 

Last night, I watched Parzania, a film on the Gujarat riots. This kind of organised rioting has been with us ever since ‘politics’ entered our lives around 1905. For over 100 years we have been searching for a ‘political solution’ to this and, indeed, that is why we value ‘secularism’. I will contend that we are barking up the wrong tree. It is not in politics, but in Law, that the solution lies. 

To begin with, the idea of ‘community’ is not a political one. On the contrary, it is a social concept; that too, one that is not exclusive. All our cities and towns are peopled with a mixed match of Hindus, Muslims, Christians, Sikhs, Jains and what not. They are also open to ‘friendly strangers’ from anywhere: tourists are welcome. There is regional competition for foreign tourists. What then is ‘community’? On the surface at least, it must be a far broader concept than politicians — especially religion-based politicians — would have us believe. 

The great social philosopher Friedrich Hayek offers us a dazzling insight into the idea of community: ‘‘What makes a community is the common recognition of the same rules.’’ When we go about the bazaars, gainfully trading with all kinds of foreign people, we all follow certain unwritten rules. This ‘private law’ is what makes up a community. This law has not been legislated, and so is not man-made. 

Rather, it is a product of social and cultural evolution, and is our inheritance from the past. 

We all make private law. My rental contract with my tenant is an example. My fence along my property, and my name on the gate-post with a ‘Trespassers will be shot’ sign are further examples. I live peacefully in my ‘community’ because all my neighbours and all my tenants ‘recognise’ this private law, and abide by it. I live in Goa, and I must add that even the lakhs of foreigners who descend here every winter respect this very private law. I am therefore living in peace and harmony — and all of us comprise a private law, non-political community. 

The roots of the ‘common law’ are based on the notion of separate and exclusive domains for private and public law. Till today, the King of England does not make law. This was true even among the Anglo-Saxon tribes of yore. Their ancient chieftains were warlords who never made law. When William, the Norman conqueror, took England in 1066, he was told, ‘‘We don’t want any changes in the laws of the Anglo-Saxons.’’ The English people lived in a private law community, and their laws were largely about property and possession, the performance of promises (contracts) and economic compensation for injuries (torts). There were also local customs and traditions that had to be respected: that is, there were many unwritten laws. 

If we go through the history of the common law, we find that there was zero ‘legislation’ till modern times. Throughout their history, the purpose of parliaments has been to vote on taxation that the sovereign demanded — and nothing more. That is, neither the sovereign, nor parliament, actually made law. So who did? 

Actually, no one did. Whenever there was a dispute between two people, it came up before an impartial judge who ‘found’ the facts of the case and applied his judicial mind, and his ‘sense of justice’, to it: ‘The law is not made; it is found’ was the guiding maxim. As the common law courts became the most popular avenue for justice, and the ‘legal community’ of lawyers, pleaders and so on came about, the role of the lawyers was to look into past precedents and point out to the judge as to which were in favour of their clients. The judge would either apply the precedent, or make an adjustment to it, thereby setting a new precedent, and the law would take a small step forward. This manner of decentralised law-making is an exact mirror of the decentralised decision-making individuals engage in when they trade amongst each other in markets. 

The organised rioting we see in India is ‘political’. A permanent solution to this is to entrench the ‘private law’ in which we interact in harmony as peaceable and inclusive communities. Private property, contracts and torts make up this private law. This defines who the bonafide members of the community are — and who are the real outlaws. 

It will then be realised that the outlaws are these very politicians, their political parties, and their corrupt and politicised police forces. Indeed, there are specific provisions in the Indian Penal Code against divisive politics, but these are not being enforced. 

What then is public law? The acts of parliamentary assemblies, the public law, since Roman times, have been meant to apply to the organs of government only. These are the rules that the administrative apparatus of the government have to abide by. Today, it is these that are actually ‘lawless’, in the true sense of the word. We are therefore confronted with the classic situation in constitutional history: the people live lawful lives in the private law world, but their rulers are lawless. It is precisely under such circumstances that the English people forced their sovereign to sign the Magna Carta in 1215. ‘‘The original idea behind constitutions is that of limiting government and of requiring those who govern to conform to laws and rules,’’ says the legal scholar KC Wheare. The public law must list out the ‘duties and responsibilities’ of the district officer, the superintendent of police, the roads engineer and so on. Our socialist and absolutist constitution lists out the duties of citizens! That is why there is so much lawlessness in this country. 

Parzania clearly shows that our civil communities are peaceful, inclusive and harmonious. It also shows how ugly our politics has become. We need a Magna Carta to limit politics and government. Onwards to a Second Republic! 

This article was published in the New Indian Express on September, 06, 2007.  Please read the original article here.