Sunday, 5 July 2009

The Grundnorm

“A constitution is only as good as the people and culture behind it!”--anonymous

My friends Akmal Husain and Ejaz Haider have both in their columns in the Daily Times invoked the Grundnorm a legal concept from one of the thinkers of the now famous Austrian School that gave us so many important ideas last century. The contrast in the views of the 2, is interesting, informative and worthy of much contemplation.

A staunch democrat, Ejaz interprets the grundnorm to be the constitution and argues against arbitrary changes in it: “That basic normative framework, among other things, flows from, and is sustained by, the Constitution….This is why it is so problematic to accept Constitutional amendments dictated by external actors or flowing from the barrel of the gun….”

More philosophically, Akmal asks a very interesting question: “The question that needs to be examined is why both exogenous interventions as well as endogenous changes in the constitution have repeatedly been deployed to change the character of the constitution?” and notes “Why is it that the grundnorm has not yet emerged?”

Kelsen’s Grundnorm was neither the constitution nor an ideal and nor indeed an absolute in time. It is a norm that lies at the foundation of society. It is what societies held sacred and dear at there very core and from which flow all other norms. You could call it the “core” of the value system of society. Unlike the Platonic ideals, it can vary from time to time and indeed conquest can forcibly establish a new grundnorm if the domestic population accepts the conquerors values.

I think these two gentlemen ought to be complemented for starting a fascinating debate and we should all chime in for after all it is only through such thinking and debate that we might be able to clarify our grundnorm and perhaps move it from its current confused state to a humanist one.

The mullahs would argue that our grundnorm is a static concept of Islam—a theocratic static state where thinking, legislation and change are all stifled by the clergy. In fact clergy and not law rules! To my reading of history, this view is not consistent with a dynamic society capable of surviving in a globalized, highly competitive and fluid economy. Indeed, the theocratic position was overturned by the humanistic enlightenment in a bloody battle to pave the way for modernity and science. The Mullahs claim can be validated by society only to set up our own struggle for enlightenment.

Much of human history is the battle between theocracy and enlightenment. A constitutional grundnorm is only consistent with a humanistic enlightened society holding enlightened principles. These grand concepts handed to us from the enlightenment are now being accepted throughout the world as grundnorms-- prinicples such as the “rule of law”, ‘sovereignty of the people,” “equality of human beings regardless of color, creed or caste,” and “inalienable rights.” We in poor countries may put them in our constitutions, but do we own them?

Recall that in Europe they fought bloody revolutions to establish these principles. The kings fought hard to retain themselves above the “rule of law” and many were beheaded and they even had a military dictator. Oliver Cromwell. But they arrived at the intellectual conviction in their society that the “rule of law” will prevail and that sovereignty lies with people and a sovereign is maintained only to attract tourist dollars. The French revolution and the American Revolution were fought on enlightened and humanistic principles!

Is it only a matter of writing these humanist norms down? If that were so, any legal consultant from the west could come and write a lovely constitution and we could call it a grundnorm and live happily after. Through much of the development world Latin America, Africa, Middle East and Pakistan, constitutions do not work well and dictatorships, personality cults and outright civil wars have characterized these states for decades. They borrow constitutions, norms. Latin America has been doing it since Simon Bolivar’s days in the early 1900s. The UN gives them these documents off the shelf. But shortly after adopting a new constitution, these countries veer towards the dysfunctional. Why?

Much history and legal and philosophical thinking will tell us that the grundnorm is what Ejaz and Akmal call an endogenous norm. Every society has an endogenous norm. Humans cannot live without it. The question is: is it progressive and enlightened? In our society, unfortunately it is not! And it certainly is not accepting of rule of law or of our constitution. That is why we continue to have these hiccups of constitutional squabbles. Why is that?

In my view, our society does not accept any of the enlightenment concepts that are so necessary for democracy to establish itself. For example, we certainly do not subscribe to any form of rule of law. The VIP culture seeks to segment the feudal haves into a privileged class. In airport queues, elite clubs, government offices etc, every where privilege counts. Even achievement and excellence has to follow privilege. The privileged do not struggle in life; government gives it to them in the form of plots or monopolies. This is our endogenous norm: the protection of decadent feudal privilege and power. Our constitution was written for that with no debate or discussion. It is a compact of the feudal elite, for the feudal elite, and by the feudal elite. And the term feudal includes top brass in the country for they also make it and survive by joining the circus of government plot and privilege.

In such a privilege-preserving society, how can you hope to have “sovereignty of the people?” The rich and powerful that control all the resources, the institutions, the parliament, the bureaucracy are certainly not willing to share power or even rule with noblesse oblige of a Jefferson, a Macaulay or a Lafayette. They do not even invest in their own educational institutions or their neighborhoods. How can they give any one “inalienable rights”?

The yeoman of England fought for the “rule of law” sometimes on their own, sometimes with the squires against the feudals and sometimes with the industrialists against the landowner. In each case, they had a credible deal –a gain from the establishment of the rule of law. Why should our people rise up for our constitution? It gives them nothing! It has no rights for them. The same ministers come into power with or without the constitution! Life remains constant for the poor after each constitutional hiccup.

There are no institutions or intellectual leadership to take the enlightened concepts to them. If only that were possible, through a process of discussion, debate and education, we may be able to establish an enlightened endogenous norm. Currently, I am sorry to say, Akmal and Ejaz, we are losing the battle for enlightenment.

In a dog-eat-dog world, the endogenous grundnorm is neither enlightened nor human. Recall the Lord of the Flies, a famous book and movie of the sixties. In that a group of kids find themselves unsupervised on an island and they degenerate into serious savagery. Their grundnorm was savagery. There is much to learn from that!

There is a school of thought that says that constitutions get accepted only when society has accepted the enlightened thinking and “rule of law.” So it is not only a matter of writing it down. Tough, guys! There are no easy solutions! Look for no progress towards the development of an enlightened grundnorm –one that moves us away from power and privilege--in our lifetimes!

(this article was written in 2003 for Dailytimes where thanks to Ejaz Haider a fascinating debate took place on this issue. If there is interest I will get all related articles from Ejaz and put them up.)