In a profession defined by the hyperbole we use to describe our understanding of our world, the simple truth is frequently lost. Eventually, we come to believe that our choice of words is the truth of what we speak. This skews our understanding of legal issues and curveballs the laws we create. Allow me to illustrate.

When a poor man builds a hut by trackside, an ‘encroacher’ has ‘illegally occupied’ government land ‘in defiance’ of the law under the protection of ‘slumlords’. When I build a house in an illegal colony like Delhi’s Sainik Farm, I am ‘harassed’ by ‘corrupt’ inspectors in search for ‘bribes’ who ‘interfere’ with my property. Clearly, our attitude to the issue directs the language we use.

I have a better example. In an endless public campaign to demonize three wheeler drivers who, for urban elites, seem to personify rapacious opportunismlike no other, ‘rude and aggressive’ drivers are intermittently accused of ‘harassing’ citizens and ‘demanding’ double fares ‘taking advantage’ of rush hour. We don’t stop to ask why it costs four times more to register a private auto rickshaw than a small car, why commercial auto rickshaw licenses are concentrated in the hands of so few or why these licensees are charging extortionist daily rentals from the drivers. Airlines on the other hand, who doubled their fares last June, were ‘struggling’ carriers, ‘reeling’ under the impact of ‘unsustainable prices’ and “uneconomic low fares” who were able to ‘recoup’ some of their losses. We do ask why “tax payer’s money” is used to “subsidize” Indian Airlines which then “undercuts” the other airlines causing “tremendous losses” to the whole industry. This is how form becomes substance.

When laws get made, the language in which the addressable issue is framed determines legislative attitude. Thus, I argued in my last presentation at Lex Witnesses’ Real Estate Summit that we areproceeding to frame a patently unfair land acquisition law because we see conversion of farms to golf clubs as ‘development’ and original ‘owners’ as ‘claimants’. If we saw acquisition as ‘land grab’, landowners as ‘victims’ and compensation as ‘peanuts for helpless peasants’, the laws we make would change radically.

Historically, this is how it has always been. When the British Government ejected indigenous people from their community owned forests, their ‘relationship with the forest’ was ‘settled’. When plains dwellers lost title to their lands to a newly created class of zamindars, agricultural land was thus subject to a ‘permanent settlement’.

The point here is not to change the “language” of legal issues to favour peasants and victimize industry. That is replacing one prejudice with another, one propagandist line with another, one demagogue with another, one emotional appeal with another and, most of all, one moral judgment with another. To make fair and just laws, we need legal discourse free of moral judgment and semantic spin.

Why do I say so? In our cynical world of high pitched demagoguery, it is always easy to trash any argument in favor of self-restraint and rationality. Nevertheless, when moral judgment becomes the driver of political discourse, the result is usually tragedy. We must acknowledge that laws will always favor someone at the cost of someone else, so laws will always be political. We need political discourse free of moral judgment. History has proved as much. Just so I don’t get caught up inemotional debates on the interpretation of Indian history, let me use an example from another global power.

The Ming Dynasty was undoubtedly a high point in Chinese history. Why did the Ming Dynasty fall? When you get past the patchy tax collection and the corrupt bureaucrats, it comes down to the neo Confucian philosophy of Wang Yangming who, during the reign of the emperor Wanli (1572-1620), set forth the proposition that everyone has an “innate knowledge of the good”. In demanding that people act on their beliefs, he demanded that every individual including those in government must make a moral judgment on everything he did or didn’t. This was not so far from European Individualist Humanism (which mercifully never informed European history). This exaggerated moral responsibility really meant that the Ming government became hostage to individual moral choices as officials each decided who would act in what way based on what that individual believed was correct. So simple governance choices were really moral choices and it became impossible to find a middle ground, which lies at the heart of political compromise. Government was undermined, terminally so. Within twenty years of the emperor’s death, the dynasty was destroyed by incoming Manchu invaders.

May I submit that we who have the ability to make and interpret laws have no business becoming hostage to such prejudice. Let us confer together and rethink our legal landscape so we may not hurtle towards a self-righteous suicide.