There Is A Need To Revisit Our Foundations Of Justice And Rule Of Law

Posted by Nikhil Kumar
July 2, 2017

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The rise of exclusive majoritarianism, not political but cultural, across different pockets of the world has implications for justice and rule of law. These diverse monoliths that have gradually seeped into different cultures, with their passive assets, demonizes minorities, in different contexts, not just for their otherness in that context but for their very existence in that society. It manifests in the violence (physical and psychological) against non-masculines around the world, killing of Muslims and Dalits in India, assaults on dark-skinned citizens and visitors in USA and Europe, increasing revulsion from bearded men and burkha-clad women in Western societies, and the like.
The pockets of majority demand ‘protective’ changes in the law as they see fit, in order to ‘defend’ their culture from an assumed decay. Often times, they portray themselves as victims of outsiders. These outsiders are not just those born outside a community but also those fellow citizens who have different worldviews regarding religion, sex, culture and society.
The idea of unity in diversity, however profound, rings hollow in these contexts. While all modern societies profess rule of law, this promise is found wanting to the detriment of many innocent victims and survivors. Justice, however desirable – a myth nonetheless, finds itself receding from our society while we stare blankly.
The common theme of constitutions of nations around the world has been a social contract based on Rowl’s ‘Veil of Ignorance’. It is based on the idea that of impersonal justice that is rendered when a person does not know his/her position in society while designing its structure. Another common component in today’s society that deserves mention is material utilitarianism which locates the actions of individuals in the context of the common good of their society.
Both these philosophical foundations result in a rule based society in which rules tend to be followed by people, if at all, not out of fear of committing a crime but out of fear of becoming a victim of someone else’s crime. And therein lies the problem of the justice that is supposed to be rendered by the rule of law. When people realise that their becoming victims of a certain crime is often minimal, they tend to commit that crime against others.
For example, a man who rapes or attacks women, at home or outside, knows well his odds of being raped or attacked. Similarly, the angry self-righteous bigots who kill Muslims and Dalits have figured out that their chances of meeting a similar fate is negligible. Or a white person in the West has no reason to fear being reciprocated when s/he harasses an assumed foreigner for his/her ancestry or color of skin. Even so, it is not out of stupidity or self-interest that they do what they do. They do so out of a righteous moral self-licensing to protect a supposed ‘group-interest’.
The way around this, conventionally, had been the fear of punishment by the law enforcement system. However, it would be a naive to assume their impersonal political motivations. Either way, punitive actions against a whole section of society, that in truth, bears some blame for such perverse actions does not seem feasible.
Maybe we need to have a more critical look at the idea of ‘justice according to the rule of law’. If neither punishment nor the fear of being victimised serves a sufficient deterrent against crimes, maybe we are not in a very good shape after all.

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