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Bad law and Democracy

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A still from the film Gandhi (1982)


“There are unjust laws as there are unjust men” ~ from the film Gandhi (1982)

Background:This article on the Volokh Conspiracy, titled ‘Why we shouldn’t “just enforce the law'”.

I

Enacting and enforcing law is the primary reason for the existence of the state. The state itself is a mechanism that human society has ‘evolved’ to ensure societal growth and progress. The State is therefore a servant to societal needs and wants. A state which is not reflective of society and cognizant of its requirements will not survive long. The laws that the state enacts – in a democratic society is presumed to have been consensual. The legitimacy is derived from the assumption that the majority has the right to dictate the will of the society, and those who do not ought to be cast out or penalized. This is however restricted by the constitution of the country – it dictates in essence what the majority can and cannot do. The Constitution itself is a document that the majority itself has agreed up on to be the terms of the state.

As stated in the Reason article, there are arguably laws whose enforcement would be unjust. The problem of course is that knowing what is known in the paragraph above, the terms of the law are set by the majority, and therefore they have a likelihood of being unjust to a minority. The only way the majority does not have its way through whatever they want in a democracy is if the majority itself is animated by the ideas of democracy and liberty. When they are not, the system will fail and the country will overtime become overtly or implicitly authoritarian.

Coming back to the topic at hand – yes, there are laws that are unfair, unjust and unreasonable. What can be done to repeal them? to amend them? Any dissent against the law if it is to achieve success has to be through a sustained political movement that appeals to the majority of citizens. If it is a law that affects a minority of citizens, then the legislature has to take cognizance and act, but they will do so only when they themselves have any benefit attached to such a change. Otherwise, it has to be through the political system promoting a ‘good actor’, who utilizes his political capital to repeal the law. But that would only occur if the ‘good actor’ judges the costs of the law being enforced to be higher than the costs of keeping the law on the books. Unless there is a political incentive to act a certain way, any given moderate politician would not swing one way or another. The situation is different if the politician is a radical. The radical may act according to his own dictum as long as it does not cost significant political capital.  [This is all presuming a democratic system]

For a democratic system to work therefore, the populace has to be ‘educated’ and informed about the issues one way or another. The majority have to be ‘believers’ in liberal democracy. The other alternative is that the elites in the society are of that inclination.

Unjust laws are part of any political system. What exactly counts as being ‘unjust’ could very well be relative. That relativity does not however mean that there is fluidity in what ‘justice’ should mean. There are obvious norms that are universally frowned upon since they lay bare the very basis of society and societal structure.

II

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To some, the modern war in drugs is also another form of “baptists and bootleggers” was for prohibition


As illustrated above, democracy does not really incentivize the removal of bad laws from the statute books. In fact, democracy accrues more bad law than we anticipate due to the unbalanced political power of interest groups. Cartels can develop over a certain bad statute that protects the interests of special groups but is harmful for the larger populace. This is characterized as the “baptists and bootleggers” phenomenon – something that applies in India as well.  The concept was proposed by Bruce Yandle, and argues that interest groups promote regulation that directly benefit them. In case of prohibition of alcohol, the Baptists (Evangelical Christians) wanted it because of moral reasons while bootleggers wanted it because they could make more cash if alcohol was prohibited.

To break such a cartel, the populace have to be outraged enough for it be made into a campaign issue by the opposition. This may not happen since the interest groups can lobby both sides for favours. No pragmatic businessman in a democracy would commit himself to just one side of the aisle. The key lies in bribing both of them enough for your purposes.

Cartels therefore formed to create bad law, will with enough time and patience can delude the general populace into thinking that the law is beneficial and positive for the majority of the population. This is  done by controlling the flow of information, patronizing researchers and activists who are both committed to your cause. Against such an onslaught of institutional strength, any opposition could wither away. The point I’m trying to make is that if a cartel group plays their cards right, they can develop a whole system devoted to protecting them and their interests. (For example: the activities of the United Fruit Company in Guatemala).

In a similar fashion, cartels can develop over protecting ideologies and concepts that may not be in the best interests of the majority, but that of the establishment or elite. (Something I will elaborate in a later post, when I have time)

Note: This post was revised and extended on 24/09/2018, adding the second part.

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