The Gandhian Jurisprudence of Nonviolence: A Path to Alternate Dispute Resolution
I had learnt the true practice of law. I had learnt to find out the better side of human nature and to enter men’s hearts. I realized that the true function of a lawyer was to unite parties riven asunder. The lesson was so indelibly burnt into me that a large part of my time during the twenty years of my practice as a lawyer was occupied in bringing about private compromises of hundreds of cases. I lost nothing thereby — not even money, certainly not my soul. — Mahatma Gandhi in his Experiments with Truth
The apostle of peace writing in his Autobiography after he was able to successfully mediate the case he was handling of Dada Abdullah in South Africa stressed on how it was important to explore the ‘better side of human nature and to enter men’s hearts’. This importance given to understand human feelings and develop heart-to-heart relationship is the foundation of the Gandhian Jurisprudence of Nonviolence. In that case, Gandhi through his approach of humanism and use of nonviolent communication was able to gain the complete confidence of both the parties and ‘persuaded them to submit the suit to an arbitrator of their choice instead of continuing with expensive, prolonged and bitter litigation.
Pyarelal describes Gandhi’s understanding of the profession of law, “Gandhiji learnt to regard law not as an intellectual legerdemain to make black appear white and white black, but as codified ethics. The profession of law became to him the means to enthrone justice, not entangle justice in the net of law.”
In this context, Charles Fried in his paper, The Lawyer as a friend- the moral foundations of lawyer-client relationship (1976) asks a philosophical question, ‘Can a good lawyer be a good person?’
Daniel Markovits in his book, A Modern Legal Ethics: Adversary Advocacy in a Democratic Age, points out, “Can the ‘actions, commitments, and traits of character typical of the [legal] profession . . . be integrated into a life well-lived’? Here Markovits is trying to interpret and reconstruct what the lawyer does do and explores its implications for the ability of the lawyer to lead a good life.” Markovits further points out in his book about the fundamental obligations observably placed on every lawyer; namely, loyalty, respect for client determination of ends, and legal assertiveness on behalf of clients. These fundamental obligations lead inevitably to lawyer violations of ordinary morality: to fulfil their obligations lawyers must lie (‘asserting a proposition that one privately (and correctly) disbelieves’) and cheat (‘to exploit others by promoting claims or causes that one private [and correctly] thinks undeserving’). Markovits argues that this is the result of the separation of adjudication and advocacy role of the legal system and the adversary system that is prevalent.
An insightful conversation with a lawyer practicing in the Supreme Court of India brought to the fore the following points: The so-called standard conception of the lawyer’s role, captured in the mantra of zealous advocacy, combines three elements: partisanship, neutrality, and non-accountability. Partisanship requires lawyers to pursue lawful client ends by any lawful means necessary, regardless of the morality of the ends or the damage the means might inflict on the innocent. Neutrality means that lawyers must not exercise moral judgment over their clients’ lawful ends or the lawful means used to pursue them. And lawyers cannot be held morally accountable for acting on their clients’ behalf. The central question raised by the standard conception is why lawyers get a free pass from morality in a pastime that is far from victimless. The lawyer does her work through speech and persuasion. Her/his moral faculties are fully engaged in a way that seems uniquely hard to square with non-accountability.
The Gandhi approach to jurisprudence answers the pointers on the ethical issues raised by writers like Fried and Markovits. The overarching approach of Gandhian Jurisprudence of Nonviolence is based on his principles of truth and nonviolence. Gandhi argues in his Autobiography, “It was not impossible to practise law without compromising truth.” As an ardent votary of truth, the Mahatma felt that truth was the first article of this faith and the last article of his creed. In this context, in the introduction to the book, The Law and the Lawyers, S B Kher points out, “It was therefore no wonder that in his practice of the law, he maintained the highest traditions of the profession and did not swerve by a hair’s breadth from the path of rectitude and integrity. He was always valiant for truth, bold in asserting it in scorn of all consequence, and never sold the truth to serve the interests of his clients.”
For Gandhi, there is no ideal higher than truth and no duty higher than nonviolence. The Mahatma points out, “I realized that what I was doing were experiments in truth. In doing so I have sometimes erred and learnt by my errors. Life has thus become for me a series of experiments in truth. In my pursuit of truth I came across the method of non-violence. By instinct I have been a votary of truth, but not non-violent. As the Muni Jinavijayaji once rightly observed, I was all for truth and was capable of sacrificing non-violence for the sake of truth. I confessed to him that it was true. For me “there was no dharma higher than truth” and “no dharma higher than the supreme duty of non-violence.” The word dharma in my opinion has different connotations as used in the two statements. In other words it means that there cannot be an ideal higher than truth and there cannot be any duty higher than non-violence. A man can pursue truth only by constantly adhering to this duty. There is no other means for the pursuit of truth.” (Collected Works of Mahatma Gandhi 68: 260)
Gandhi’s prescriptions should be able to form the fulcrum of professional ethics of governing lawyers as he stresses, “Throughout my career at the bar I never once departed from the strictest truth and honesty. The first thing which you must always bear in mind, if you would spiritualize the practice of law, is not to make your profession subservient to the interests of your purse, as is unfortunately but too often the case at present, but to use your profession for the service of your country.”
The enduring principles of truth and nonviolence form the pillars of his idea of justice and encourage the practice of alternate dispute resolution and restorative justice. He links his idea of nonviolence to justice when he says, “The first condition of non-violence is justice all round, in every department of life.”
(Mahatma, Vol. 5 by D. G. Tendulkar, p. 278)
If we go back to the Dada Abdulla’s case in South Africa, we find how it helped shape Gandhi’s realization on the critical importance of facts. He writes in his Autobiography, “Facts mean truth and once we adhere to truth, the law comes to our aid naturally.” Facts, according to Mahatma Gandhi three-fourths of the law and if we took care of the facts of a case the law would take care of itself.
Absolutely meticulous about facts and the essence of good draftsmanship while putting together cases, Gandhi was of the opinion that bad draftsmanship often spoilt good causes. He said, “I do wish as a practised draftsman to warn writers of petitions, whether they be pleaders or otherwise, to think of the case they may be espousing for the time being. I assure them that a bare statement of facts unembellished with adjectives is far more eloquent and effective than a narrative flowing with exuberant language.”
An important dimension of the Gandhian Jurisprudence of Nonviolence is his belief that ‘true function of a lawyer was to unite parties’. This forms the basis of alternate dispute resolution which comprises of various approaches for resolving disputes in a non-confrontational way, ranging from negotiation between the parties, a multi-party negotiation, through mediation, consensus building, to arbitration and adjudication.
In the backdrop of the strict ethical framework suggested by Mahatma Gandhi, he observes how it was critical for lawyers to play an important role in bringing disputing parties together to resolve their differences through a free and fair compromise procedure. Also the Gandhian approach to communication is a powerful framework for dispute resolution. It focuses on nonviolent speech and action, flexibility, openness in communication and evolution of personhood. The Gandhian communication principles which aim to build relationship and take individuals and groups to a process of dialogue could be the guiding principles of judicial communication.
When these approaches are integrated in studies of law and in codes of professional ethics, we could promote a jurisprudence of nonviolence thereby promoting alternate dispute resolution.
In the approach to a jurisprudence of nonviolence, it would be pertinent to understand the salient features of nonviolent conflict resolution. Here are some key points:
a. Nonviolence allows participation of all parties involved in the conflict- this includes people from all traditional levels of strength and weakness.
b. Nonviolence is based on eternal values of humanism, love, understanding, forgiveness, reconciliation, caring, compassion, justice, democracy, equality, security and preservation.
c. Nonviolence is not threatening to ordinary citizens.
d. In nonviolence, the means are consistent with the ends.
e. Based on principles of Mahatma Gandhi, Martin Luther King and others, it can be stressed that commitment to nonviolence requires courage.
f. Nonviolent action in conflict resolution can be summed up in ways (a) accommodation, where the opponent do not believe in the changes made but nevertheless believes that it is best to give in on some or all points to gain peace (b) nonviolent coercion, where the opponent wants to continue the struggle but cannot because they have lost the sources of power and means of control; © conversion, where the opponent has changed inwardly to the degree that they want to make the changes desired by the nonviolent person involved in resolving the problem.
g. Deutch M in his article”Conflicts : Productive or destructive published in Journal of Social Issues” — Vol. 25 (1963) rightly says, “Nonviolent ways of resolving social conflict have far greater chance than other methods — because it has a productive resolve in its within to get the conflicts settled. So it is better than violent method/technique which used to be destructive since it operates on limited understanding of the psychology of disputing process and the disputing parties and it creates threatening circumstances and based on balance of terror technique and thus creates a vicious cycle of chaos, crime and terror extremism and other network.”
Alex Robb gives a detailed explanation to the Gandhian approach to jurisprudence. In his paper, Gandhi and Law : His Ethos of Relating to Law Demonstrated in an Encounter with Legal Order (2010), Robb argues, “Gandhi takes legal order very seriously because it is through these established practices
of jurisprudence that men are formed, and by engaging with jurisprudence that men may reform themselves and their societies. Law in this conception is held up by society as a truth, a mode of conducting oneself and one’s relation with society that is claimed to be correct, and so laws supply Gandhians with a most appropriate subject for experimentation with agonistic.”
Robb notes, “ In developing this agonistic nonviolent approach to seeking truth through contesting law, Gandhi develops a form of personal jurisprudence, a practical wisdom of using vows and pledges in order to place oneself in a certain relation with the law.” He points out how Gandhi himself outlines his idea of personal jurisprudence in his Autobiography:
Before one can be fit for the practice of civil disobedience one must have rendered a willing and respectful obedience to the state laws. For the most part we obey such laws out of fear of the penalty for their breach, and this holds good particularly in respect to such laws as do not involve a moral principle. For instance, an honest respectable man will not suddenly take to stealing whether there is a law against stealing or not, but this very man will not feel any remorse for failure to observe the rule about carrying headlights on his bike after dark… but he would observe any obligatory rule of this kind, if only to escape the inconvenience of facing a prosecution for breach of the rule. Such compliance is not, however, the willing and spontaneous obedience that is required of a Satyagrahi. A Satyagrahi obeys the laws of society intelligently and of his own free will, because he considers it to be his sacred duty to do so. It is only when a person has thus obeyed the laws scrupulously that he is in a position to judge as to which particular laws are good and just and which unjust and iniquitous.”
Conclusion
The Gandhian approach to nonviolent jurisprudence holds great promise in alternate dispute resolution. At a time when the judiciary is overburdened, it is significant on how we can encourage nonviolent resolution of disputes like mediation. It is also critical how Gandhian nonviolent communication reaches the precincts of courtrooms and in law universities so that there can be meaningful interaction between the Bar and Bench and lawyers and clients. In fact efforts should be made to make the whole architecture of judicial communication, nonviolent in nature .