The desires of the heart are as crooked as corkscrews
Not to be born is the best for man
The second best is a formal order
The dance’s pattern, dance while you can.
~ W.H. Auden
If you’re a close friend and had a conversation with me yesterday, you probably heard me talk a lot about British history — you probably even heard me express some ineffable sense of gravity at the death of a British monarch. Parts of Twitter have been unfailingly funny in mocking those who believe in such an archaic mechanism as monarchy. And who can blame them? Being the symbolic head of a state which has repressed and killed populations around the world is unlikely to earn Elizabeth II a lot of beatifying eulogies from erstwhile conquered peoples.
However, while the British empire does not need to be offered deference, there is another reason we might feel gravity and respect, and want to pay tribute to their constitutional culture and its resilience. The UK has a successful constitutional system, the rule of law, and real democratic accountability. In order to appreciate how rare this is, one must recognise that constitutions are fragile illusions, and their sole source of strength is a sense of gravity, of belief in tradition. More than politics, what animates this moment is ceremony, these are matters of custom and style — the remnants of an archaic constitutional settlement of extraordinary longevity whose forms still retain some of their old power to inspire respect and awe. Why do I feel so strongly about this? As Matt Levine puts it, principles — like constitutionalism, the separation of powers, or the freedom of the press — do not enact themselves. They persist “because the people constrained by them believe themselves to be constrained by them.” And these principles are “checks on power only as far as they command the collective loyalty of those in power; they require a governing class that cares about law and government and […] tradition, rather than personal power and revenge. Their magic is fragile, and can disappear if people who don’t believe in it gain power.”
And remembering this is doubly important in India, where constitutionalism is still a facade over the fundamental failings of the rule of law. Daily, we receive reminders that the only laws that truly exist are the physical laws of the universe. Everything else is merely an arrangement of convenience. If different people held power, things would be different — including the constitutional order.
Legal realists throughout history have understood this. As Holmes said, the life of the law has not been logic, but experience, and “[t]he substance of the law at any given time pretty nearly corresponds, so far as it goes, with what is then understood to be convenient; but its form and machinery, and the degree to which it is able to work out desired results, depend very much upon its past.” What law officers in India today argue, and what governments do, is a compromise between convenience and ideology — but they must make those arguments in the constitutional courts, in the language of rights, and with the respect that is appropriately due to the law lords.
Perhaps you would feel a little more respect for British tradition if you understood how steeped we are in it. When you make a claim before a constitutional court, what you are really doing is invoking history. When you claim the principles of equity and fairness, you are calling upon the product of a tradition that began with the curia regis and the Lord Chancellor. If you learn the history of the criminal law, you will learn that the transition from blood vengeance to the burden of proof took a long time, and that virtually none of it was certain, and all of it was hard won.
Absent these traditions, it takes embarrassingly little for the rule of law to be replaced by a fight for a knife in the mud. We must cherish these principles and the tradition and history that they represent. The moment we stop believing in them, the mirage will shimmer and dissipate. But as long as they persist, they can be summoned in the face of reaching claims from ambitious statesmen, whether they are progressive or regressive. ‘No,’ we can tell them, ‘you cannot wish away or dissipate this recent past — constitutionalism and all the rest — so easily.’ As long as we live by the common law and its progeny, we are bound in an inexplicable sense of mutuality, parties to a shared network of obligation. This bond is the physical feeling of malaise at the thought of a man, however dangerous, being imprisoned without trial, or the flutter that arises from the English dictum that a judge shall put aside all other business and take up first the matter involving the liberty of a subject.
Perhaps you derive those principles from less archaic forms. But it helps, sometimes, to have talismans and tokens and a sense of history. It lets us summon ancient curses and a cerebral stampede against the person who suggests that rights-based systems should be replaced by an economic cost-benefit analysis; or against the craven lawyer who argues that bulldozing homes without fair notice is required in the national interest. In the face of bulldozers, there are no philosophical debates about first principles and anarchism and empathy. No, our best and only hope is to teach people a litany to ward off demons: “Because the Magna Carta, because the common law, because the Constitution, because the oath of office, because कानून.”
Mere days ago, we celebrated the grant of bail to a political prisoner who had been detained for far too long. That grant of bail was the direct result of the ascent of a new Chief Justice. Gentle reader, it is not for me to say that this is not the rule of law; it is for you to say that. So, to answer your derision, perhaps my love of ceremony has something to do with the fact that I am a citizen of the Republic of India, where so little is stable, where so little can be taken for granted, where so little is governed by constitutional ceremony, and where so much is decided by apathy and force.
I hope you will forgive, meanwhile, my goosebumps and my awe as I watch a system go through royal succession — as the Queen’s Counsels plead allegiance to a new King, as Regina becomes Rex, and as the First Lord of the Treasury offers her condolences to a functioning Parliament whose sovereignty was only recently defended by an independent Supreme Court.
And so the rule of law carries on, held up by a collective Atlas of brave lawyers, scholars, activists and politicians, bureaucrats, businessmen, and citizens who refuse to accept that the Constitution is only a parchment promise. I will not begrudge you if you think me naive — I probably am — to aspire to a system while detesting its colonial history, or to think that there could be anything to feel as the colonialists grieve. To paraphrase Auden, perhaps I believe, in the absence of perfect justice and the settlement of all wrongs, that the second best is a formal order. And while the tune is not quite catching in our republic, we can only whirl harder, and dance, dance, dance until we drop.