On this blog, on various occasions, I have tried to advance the beginnings of a theory of constitutional fraternity, that focuses on egalitarian relationships within non-State associations (it is a model of fraternity that is entirely different from that propounded by the Supreme Court in the criminal defamation case). Recently, I came across the work of the political theorist Ian Shapiro, on the subject of “non-domination” as central to justice. It seems to me that Shapiro’s understanding of non-domination captures with great succinctness the idea of constitutional fraternity (as I understand it):
“I have previously made the case that the best path for pursuing justice, thus conceived, is to democratize human relationships in a particular way. This involves institutionalizing democracy as a conditioning or subordinate good that shapes the ways in which people pursue other goods. My democratic conception of justice is partly defined contextually, linked to the nature of the goods in question and the ways in which people pursue them in particular historical settings. But mine is also partly a general ideal. It implies the need for participation in decision making as well as rights of opposition as constraints on ways in which people pursue their contextually defined goals. How robust these constraints should be depends on how vulnerable to domination people are in particular settings; the more vulnerable they are, the more demanding should be the constraints.
Vulnerability to domination is operationalized, for me, principally by reference to the notion of basic interests. People have basic interests in the security, nutrition, health, and education needed to develop into, and live as, a normal adult. This includes developing the capacities needed to function effectively in the prevailing economic, technological, and institutional system, governed as a democracy, over the course of their lives. People are more vulnerable in collective settings when their basic interests, thus conceived, are at stake than when they are not. If I control resources that you need to vindicate your basic interests, that gives me power over you. This fact legitimates more stringent democratic constraints on our collective endeavours when basic interests are at stake than when they are not. This power-based resourcism, as I have called it, is geared toward mitigating the most serious kinds of domination that permeate human social arrangements.”
From Ian Shapiro, On Non-Domination (University of Toronto Law Journal, 2012).
Readers will recall that we have tried to thresh out a similar argument when discussing Article 15(2) as providing a right against horizontal discrimination in the domain of housing, as well as the constitutional validity of the anti-excommunication law that was at issue in the Dawoodi Bohra Case (and is now moot because of the passage of the Maharashtra Social Boycott law). I hope to be able to further develop this argument a little way down the line.