Actually, Curbing Uber Won’t Relieve Heavy Traffic (Liya Palagashvili, Professor at SUNY, in the New York Times)
CoinFund Is In The Heart Of The Blockchain Revolution (Alisa Cohn’s profile of Jake Brukhman and Alex Felix in Forbes)
The fatal conceit: the hubris of India’s planners (Shruti Rajagopalan, Professor at SUNY, in LiveMint)
Sovereign Entrepreneurship (Alex Salter , Professor at TTU at the Center for Innovative Governance Research)
The title of this post refers to F.A. Hayek’s essay ‘Why I am Not a Conservative’, which can be found as an appendix to his 1960 book The Constitution of Liberty. What this post is really about is the deficiencies of American conservatism and the general idea of liberal conservatism or a natural alliance between classical liberals and conservatives. However, first a few words about Hayek’s essay as Hayek is an important figure for liberty advocates. The essay in question is well known and particularly easy to find online.
Hayek’s criticism of conservatism overestimates the extent to which it is just a limiting position, slowing down change. The relation of conservatism to tradition is seem too much as conservatism being too slow to accept changes to tradition. Traditionalist conservatism, however, has been a much more active and dangerous force than that. ‘Traditionalism’ as far as I know is a 20th century term used particularly in France (René Guénon) and Italy (Julius Evola) to refer to a spiritual based for politics of an extreme conservative kind which found natural alliance with fascism. It seems clear enough that it has precedents in late 18th and 19th century conservative monarchist thinkers like Joseph de Maistre, Louis de Bonald, and Juan Donosó Cortes.
Carl Schmitt, who was maybe the greatest 20th century admirer of those thinkers, joined the Nazi Party in 1933, though found himself purged as not properly Nazi from his post as head of a jurists’ association in 1936. Not only did Schmitt admire the French and Spanish thinkers mentioned, he was a great admirer of Edmund Burke. Burke is a favourite of those claiming a conservative-liberty affinity. It would be unfair to suggest that Burke would have welcomed National Socialism (though the same applies to de Bonald, de Maiste, and Donosó Cortes).
It is a fact that a large part of conservative thinking of the time of the rise of Fascism, and allied forms of illiberal government such as corporatism, regarded it as a legitimate counter to Bolshevism and disorder. Even Ludwig von Mises defiled his own 1927 book Liberalism with generous words about Fascism as a counter to Bolshevism. The reality is that at the time such regimes came to power there was no immediate risk of Communist take over and this is a horrifying position, which cannot be justified by suggesting that Mises was writing in the heat of the moment as Bolsheviks stalked power in any particular country. Winston Churchill welcomed Fascism in Italy and even initially welcomed Hitler’s rise in Germany, before becoming acquainted with the reality of his regime. It is of course the case that Fascism and National Socialism had socialist roots as well as traditionalist conservative roots, but then a liaison between socialism and traditionalist conservatism as a counter to liberal individualism has a history going well back into the 19th century.
We can see right now in Europe the growing force of conservatism with a populist-nationalist emphasis targeting abnormals (as in everyone who does not fit their assumptions of a normal person in their country). This is not some new addition to the repertoire of the right. The strong man of the Northern League in Italy, Metteo Salvini, has aligned himself with Mussolini recently by tweeting a variation of Mussolini’s slogan ‘many enemies, much honour’ on Mussolini’s birthday. The Hungarian equivalent of Salvini, the Prime Minister Viktor Orbán, has rehabilitated the pre-war authoritarian leader Miklós Horthy. The Legue, Orbán’s Fidesz party, the Bannonite wing of the Republican Party and the like are stuffed with Vladimir Putin apologists, or at least as in Bannon’s case slippery arguments according to which he does not like Putin, but we should ally with him. In any case, Bannon is very active supporting the pro-Putin parties in Europe.
These parties draw on long traditions of conservative populism, monarchist anti-liberalism, and the like. The appeal to conservative love of monarchy, state church, and social conformity was a major weapon of monarchist conservative forces after the 1848 Springtime of the Peoples in Europe, helped by violent Russian intervention in the Austrian Empire to ‘restore order’. We see something like this now in the growing strength of a brand of conservatism which does not just limit change but fosters change in the direction of illiberalism, nationalism, xenophobia, Islamophobia, Christian identity, free trade, liberal protections of the individual from state power, the rights of civil society organisations to stand up to the state, and economic protection, seeking inspiration from the kleptomaniac nationalist authoritarian regime in Russia.
Enthusiasm for Recep Tayyıp Erdoğan is less obvious, but Orbán has put him on his list of ‘illiberal democracy’ heroes, and we can reasonably say that the rhetoric and methods of Erdoğan have been an inspiration for the populist right throughout Europe, even as, like Órban, it puts Islamophobia at the centre.
The role of Donald Trump and Steven Bannon as friends of, and models for, European populists should give reason to wonder whether Hayek misunderstood US conservatism. More on this in the next post.
All eyes are on how Imran Khan will fulfill the ambitious promises which he and his party (Pakistan-Tehreek-i-Insaaf, or PTI) have made for creating a ‘Naya Pakistan’ (New Pakistan). Khan, who will take his oath as Prime Minister on August 11, 2018, needs to hit the ground running given the myriad of economic (Pakistan’s external debt is well over $90 billion, and accounts for over 30 percent of the country’s GDP) and geopolitical challenges. As Pakistani senior officials were drawing up plans to approach the IMF for a loan (estimated at $12 billion), US Secretary of State Mike Pompeo warned the IMF that there is absolutely no justification for ‘IMF Dollars’ to bail out ‘Chinese bond holders’ or China.
Given the high expectations as well as the impatience amongst the youth, Khan is not likely to have a very long honeymoon period.
Pakistan-China relationship under PTI government
It will be interesting to see how the crucial Beijing-Islamabad relationship pans out under Imran Khan. During his first address (after his party’s victory) to the Pakistani nation, he dubbed the Pakistan-China relationship as the most important for Pakistan. Khan also emphasized the point that Pakistan had a lot to learn from China in the context of poverty alleviation, as well as the latter’s anti-corruption campaign.
China’s relationship with Imran Khan
In the past, Khan, while supporting the China-Pakistan Economic Corridor (CPEC) project in principle, had expressed certain apprehensions during his meetings with Chinese diplomats. Khan had also stated that the government of Pakistan needs to be more transparent with regard to the contours of the project, and that each province should get it’s rightful due.
The Chinese in turn were uncomfortable with Khan’s dharna (protests) of 2014 (it was as a consequence of these protests that the inauguration of the CPEC Project had to be delayed). Khan’s 2016 protests against the Nawaz Sharif government (after the names of three of Sharif’s family members, who held offshore accounts, appeared in the Panama leaks) were also watched with skepticism by the Chinese.
It would be pertinent to point out that the PTI manifesto, while praising the project, has pointed to some of CPEC’s short comings, including investments as a consequence of ‘insufficient transfer of knowledge and capabilities, fewer partnerships with local businesses and Pakistan’s high dependence on imports of goods and services from China’.
PTI’s chief rival, the PML-N, often spoke about the need for an independent foreign policy, but never ever alluded to this aspect.
Beijing’s preference for PML-N
It would also be pertinent to point out that while Beijing has had problems with Pakistan, it has had a close relationship with the Pakistan Muslim League (Nawaz), or PML-N. Beijing, which has maintained robust relations with the army, also shared cordial relations with Shehbaz Sharif, the President of PML-N and former Chief Minister of Punjab. China has praised Shehbaz Sharif for his efficiency more than one occasion, even referring to his style of working as ‘Shehbaz Speed’ and Punjab speed. When Shehbaz was appointed President of the PML-N, he received a congratulatory message from senior members of the Chinese Communist Party.
The PML-N also sought to take credit for the CPEC project on more than one occasion. In August 2016, while addressing a meeting of his party’s parliamentary committee, then-Prime Minister Nawaz Sharif stated:
He [Xi Jinping] said this is a gift to you from China. They were also waiting for the time when our government would be in power so that they could make this investment.
Chinese Media’s comments on Imran Khan and CPEC
Post the election results, Chinese media has sought to be positive, and has been confident that the CPEC project will go ahead as planned. One op-ed published in the Global Times (‘Will Imran Khan pivot Pakistan from US to China’) referred to how the West was creating unnecessary paranoia with regard to the economic ramifications of the CPEC project. The op-ed also said that Imran Khan may take Pakistan further into the ‘Chinese orbit’ and that he had no problem with the CPEC project. The article cites the PTI manifesto to bolster its argument (saying that PTI has dubbed the project as a ‘game changer’). Other sections of the Chinese media have also welcomed Imran Khan’s election. Only one analyst, Tom Hussain, has categorically made the point that PTI had strained ties with China in the past. Said Hussain:
the PTI has been working overtime to repair its relations with the Beijing, which had been damaged by its disparaging remarks and allegations of corruption about CPEC projects in the past.
Likely developments in the short run
Imran Khan doesn’t have too many options, but there could be some re-examination of some of the CPEC projects. While Pakistan is now dependent upon China given Islamabad’s rock bottom ties with the US, the question on many people’s minds is if Khan can do a Mahathir (Malaysia’s Prime Minister), where maintaining good ties with China does not mean shying away from questioning the financial feasibility of certain projects within CPEC.
In the short run, this is impossible, and many would argue that even in the long run this may seem like nothing but a pipe dream. Yet, if Imran Khan can harness relations more effectively with neighbors (as he emphasized in his speech) and build a robust economic relationship with India (something which the Chinese may not mind), we could witness a course correction. One of the reasons why Nawaz Sharif advocated good ties with India was so that Pakistan could develop an independent foreign policy and end its dependence upon the US. One of Sharif’s slogans in 2013 was ‘Trade not Aid’. While Imran himself has spoken about trade ties with India, will the establishment allow him to go ahead.
Changing geopolitical dynamics in South Asia
If one were to look beyond economics, even in the context of Afghanistan, one of the significant developments in South Asia has been a decision by India and China to work jointly in Afghanistan. It remains to be seen how Imran Khan’s government perceives this. India and Pakistan are also likely to participate jointly in anti-terror drills in Russia, in August 2018, under the umbrella of the Shanghai Cooperation Organisation (SCO).
Conclusion
It is very tough to predict how Imran Khan handles ties with China, but one thing is for sure: Beijing may publicly be welcoming Khan’s election but from the opinion pieces in the Global Times, there is a worry deep down concerning his maverick nature. Imran, unlike the Sharif’s (who were businessmen), may not be as transactional in the economic sphere. His economic ideology is left-of-center (with a strong thrust on welfare). While he needs foreign direct investment, he is not as obsessive about mega projects as the Sharif’s.
Imran on his part will have numerous challenges to contend with, and needs to strike a fine balance. A less hostile relationship with the neighbors will benefit him, and a slightly less hostile relationship with the US would give him space. Given the plethora of challenges he is likely to face, no real changes should be expected in the context of Pakistan-China ties, though over a period of time, recalibration of policies should not be ruled out.
I was very fortunate to learn that my essay ‘Markets for rules‘ has won the Mont Pelerin Society’s 2018 Hayek essay competition for young scholars (one of the perks of academia is being defined as young well until your 30s). I am now looking forward to presenting at MPS’s famous conference, originally organised by F.A. Hayek to build the post-war intellectual case for liberalism.
The essay is an attempt to explain the governance possibilities of blockchain technology through the lens of new institutional economics and more specifically private governance. Blockchains allow people to develop rules that can then be enforced autonomously by the participants that use them without further central direction. This could allow communities to rely more on common rules and less on formal coercive authorities to achieve widespread social cooperation. I am cautiously optimistic about the technology (it could also turn into a dystopian nightmare) though not any particular currently existing blockchain.
Here is the abstract: Classical liberals seek the paradoxical: government powerful enough to protect individuals from preying off each other, but limited enough to prevent it becoming a fierce predator itself. The emergence of blockchain technology heralds a potential revolution in our collective capacity to implement limited government. Blockchains offer a more secure and transparent way of implementing rules while permitting individual choice between rulesets that can co-exist at the same time and place. What this could ultimately mean is that a great deal of what we have traditionally conceived to be governance might be disintermediated from the territorially defined monopolistic coercive authorities that classically define states.
Continuing from Ottomanism, Nationalism, Republicanism VII.
The Democrat Party returned to power under the name of Justice Party (a name possibly referring to ‘justice’ for Adnan Menderes, who was certainly executed as the result of a very politicised trial, but was no genuine martyr of democracy) in 1965. This hint at an enduring idealisation of Menderes sets up many problems in Turkey to the present day.
Recep Tayyıp Erdoğan has appealed to the same theme, which has very evidently turned under his rule into a drive for ‘revenge’ against anyone who supposedly defies the National Will.
The National Will, in practice, is based on preserving a monolithic majoritarianism based on ethnic Turkish nationalism and Sunni religious identity along with loyalism to the state under its rightful leader, who looks more like a Reis (a traditional chief) than the head of a liberal democracy.
This process begins under Süyleman Demirel (1924-2015) as leader of the AP (short for Adalet Partisi, the Turkish words for Justice Party). Demirel himself was despised by Erdoğan, and in the end sided with his old enemy, the Republican People’s Party, against Erdoğan’s AKP. However, AKP stands for Adalet ve Kalkınması Partisi, which is Justice and Development Party, so clearly Erdoğan placed himself in Demirel’s tradition. Demirel was Prime Minister or President for nearly half of the time from 1965 to 2000, but never acquired the status of a giant in national history, as such a long occupation of the highest offices of state might suggest.
The most grotesque single item of evidence of Demirel’s desire for revenge over the 1960 coup came in the case of Deniz Gezmiş, a leading figure on the revolutionary left, who was arrested for the kidnapping of two American soldiers. Gezmiş was executed in 1972, along with two associates, after Demirel had said ‘we want three’, in a clear reference to the execution of Menderes and two of his ministers in 1961, and possibly referring to Gezmiş’ self-declared Kemalism (though he is usually seen as more a revolutionary Marxist). We have two major problems in Turkish politics in one here. Firstly the attraction of some parts of the left to political violence; secondly the unendingly vengeful attitude of the right towards the 1960 coup and a belief in state violence as the solution to the far left.
State violence against the far left has been constant in the Republic. As long as there was Soviet Socialist Russia and then the USSR, the far left tended to be seen as part of an assault by a traditional national rival, whether run by a Tsarist or Bolshevik regime. This combined with a never ending fear of the weakness of liberal democracy in the face of possibly existential enemies in which political compromise has been seen as treason.
The continuing idolisation of Gezmiş, who was it must be said an attractive and charismatic person, who died young and very good looking, by the far left continues a vicious cycle in which the state establishment under various governments treats any expression of far left views as subversion, only one stop at most from outright terrorism, while the far left can then see violence as politically legitimate. Not everyone who continues the memory of Gezmiş advocates violence and we can only hope he does become a symbol of revolutionary purity detached from advocacy of political violence.
The existence of the revolutionary groups where Gezmiş operated itself tells us something about the difficulties of the 1960s. Economic growth and stability was reasonable, but there was no state understanding of how to incorporate the most disaffected parts of society. The far left was not very working class in its base, which has a stronger social core in Aleviism, that is a heterodox off shoot of Shia Islam, which constitutes the largest religious minority in Turkey.
The strongest geographical concentration of Alevis is in the Tunceli (also known as Dersim) region. These Zazaki (Persian dialect) speaking Alevis, along with Alevis elsewhere, had an antagonism to the Republican People’s Party as a result of extreme suffering during state-Zazaki Alevi conflict in Tunceli during the later 30s. However, when the Democrat Party-Justice Party line became the new state establishment and expression of Sunni supremacy, Alevi support switched to the Republican People’s Party and has stayed with it ever since as a major component. The far left also has a strong Alevi component, expressed at its most extreme in the DHKP/C terrorist/insurgent group.
Support for the far left reflects to some degree the incapacity of the state to deal with Alevi identity, while also failing to adapt to the kind of radicalised student political culture of the late 60s that existed on a global level. A significant part of this international trend comes from the growth of higher education to accommodate more people from non-elite backgrounds, which meant an increasing proportion of students with little hope of achieving the elite status more easily achieved by earlier students.
Pesant families were moving from the land into illegally constructed buildings in city suburbs, creating a target audience for the far left, though providing more support overall for the most conservative aspects of the right. The ultranationalist right found political expression in the Republican Peasants’ National Party after its take over by Alparslan Türkeş. Türkeş had announced the 1960 coup on the radio, but in politics deviated from the Kemalist ideology of the military government, certainly by the late ’60s when Türkeş went on pilgrimage to Mecca and changed the name of the party to Nationalist Action, with a party emblem of three crescent moons, referring to an Ottoman military standard.
The Nationalist Action Party was named as such in 1969, the year that Necemettin Erbakan founded National View. National View is a Muslim conservative movement which takes much of its inspiration from the Arab-based Muslim Brotherhood. The National View of Erbakan evidently refers to Turkish nationalism. The nationalist movement had secular aspects and the religious conservative movement had aspects of a Muslim universalism beyond nations, though particularly directed towards the Arab world, so seeking a kind of authentic source for religion. On the whole, the Grey Wolf/Idealist Hearth nationalists of Türkeş and the National View religious conservatives of Erbakan converged. This tendency is often referred to as the Turkish-Islamic Synthesis and has roots going back to the late 19th century, but is mostly thought of as something that grew in the 60s.
More on this and related topics in the next post.
I posted earlier this month on Brexit Breakdown suggesting that the aims of enthusiasts for the United Kingdom of Great Britain and Northern Ireland, leaving the European Union, have been eroded as the UK government’s positions drifts towards ‘soft Brexit’ accepting alignment with EU regulations on industrial goods and food, at the very least. This is still the case, but the situation has become increasingly complex, driven in an unpredictable way by contradictory forces, as I will attempt to explain below.
Full ‘soft Brexit’ would mean membership of the European Free Trade Association (EFTA), with almost complete adherence to European regulation. ‘Hard Brexit’ means eliminating any adherence to EU regulations, which in its most rock hard form means a willingness, even a preference, for crashing out of the EU with no agreement, resorting to World Trade Organisation rules to govern trade. On the other side are ‘Remainers’, including myself, who ideally would like to stay in the European Union after a referendum reversing the decision of two years ago; and who if this is not possible will work for the return of the UK to the EU at a future date.
It is still the case that over time the government has drifted towards soft Brexit, though not EFTA, and seems likely to end up agreeing to an even softer Brexit after EU negotiations are complete. The most notable area of likely compromise with the EU is to preserve an almost completely open border between Northern Ireland and the Republic of Ireland by allowing de facto membership of the EU Customs Union of Northern Ireland through a de facto border in the Irish Sea between Great Britain and Northern Ireland, largely in the form of EU customs inspections on ships between Northern Ireland and Great Britain.
The House of Commons anyway came very close recently to voting for the UK as a whole to form a customs union between the UK and the EU, so a proposal backed by the government for a form of customs union between the UK and the EU allowing an open border between Northern Ireland and the Republic without a customs border in the Irish Sea would certainly pass the House of Commons. It is one of the oddities of Brexit that a free vote of the House of Commons would result in the UK joining EFTA and this is resisted by the leadership of the two largest parties.
The Labour Party leadership resists EFTA (or any other way in which the UK stays in the Customs Union or the Single Market) though most Labour Party Members of Parliament, party members, and voters support remaining in the EU. The Labour leader Jeremy Corbyn supported Remain in the referendum though he has always looked like a socialist critic of the EU as a capitalist club. The Conservative Party leadership resists EFTA, though most Conservative MPs supported Remain in the referendum and would vote for EFTA now, and the leader (who is also Prime Minister), Theresa May, supported Remain during the referendum. In the case of the Conservatives though, party members and voters are mostly Leave and hard Brexit.
Theresa May gathered her Cabinet at the Prime Minister’s country residence, Chequers, recently to force through a soft Brexit package, in the hope of ending increasingly public conflict on the issue. Two members of the Cabinet have since resigned and Brexiteers in the House of Commons have forced some concessions, though of a rather secondary kind, which might disappear in further negotiations with the EU and the final parliamentary vote on the exit deal.
The consequences of recent political manoeuvres are as follows:
These four things do not seem to go together and what has happened is a drift from what seemed like the overwhelming probability of a hard Brexit with an agreement, to a relatively chaotic situation in which it is becoming harder and harder to decide on the most likely of the possible outcomes.
Hard Brexit without a deal has come to seem more likely because hard Brexiteers in the Conservative Party may undermine any agreement the Prime Minister (who has recently started to exercise direct control over negotiations) may reach with the EU and there are signs that the United Kingdom Independence Party (UKIP) will take voters from the Conservatives in the case of a soft Brexit. Theresa May is trying to achieve a position which can get most MPs behind her, and most Conservative MPs will probably support any deal she proposes. However, the hard Brexit people are willing to do anything to undermine a deal they consider inadequate and may vote with Labour in voting down a deal, though for very different reasons.
May’s hold on the Conservative Party is weak after her very poor performance in last year’s general election and no one expects her to be the leader at the next election (though given that the impossible seems to be becoming possible maybe we should not accept this as a given). Any election for the leader requires a contest in the parliamentary party to determine two candidates, with the Conservative Party membership as a whole deciding between them. The membership will undoubtedly vote for the more hard Brexit candidate, which at the moment seems likely to be Boris Johnson or Jacob Rees-Mogg. Rees-Mogg has absolutely no governmental experience at all, which would create an unprecedented situation if he does become Conservative leader and Prime Minister.
Neither Rees-Mogg nor Johnson is popular with the parliamentary party, so there must be a real possibility that neither makes it the final list of two candidates, presuming the parliamentary party does not persuade the candidates behind the leader of the first round to abandon the contest, which is what happened in May’s case. This could set off a major crisis in the Conservative Party.
The possibility of a second referendum (labelled a People’s Vote by its main advocates) is increasing because it seems likely that hard Conservative Brexiteers allied with the Labour Party will vote down any soft Brexit, and it also seems likely (but less likely as hard Brexiteers are more willing to vote against their own government) that an alliance of soft Conservative Brexiteers and the Labour Party will vote down any hard Brexit. It also seems very possible that the EU will reject any UK offer, as the arguments within Parliament and the Cabinet on the terms of Brexit refer to what can be agreed within British politics, not what the EU might find acceptable. At the very least it seems increasingly likely that substantive Brexit will be postponed, apart from withdrawal of UK representatives from EU institutions, for at least a couple of years after next year’s formal withdrawal.
The various forms of deadlock described above have not yet made a second referendum likely, but are increasing the likelihood of a second resort to the People to find a solution, though the question that would be asked, the form of any such referendum, its timing and so on remain unclear. Opinion polls show increasing support for a second vote and for then remaining in the EU, while the media is giving more coverage to the possibility. I would be happy to see such a result myself. The increasing uncertainty about what Brexit means itself undermined Leave claims that it would be an easy exit. Nevertheless, I have to say that the UK is probably leaving and that a no-deal Brexit is also increasing in probability.
I should, as all good academics should, be writing. Instead I’m using my Saturday afternoon to settle an academic wager. Click here if you wish to help do so.
For over a year now I’ve been obsessed with figuring out why studies find that non-whites are discriminated against in the labor market and in political representation. It isn’t that I don’t believe that elites indulge themselves in discrimination. I think that the marketplace places a cost to discrimination but that some people have a sufficiently high willingness to pay to discriminate.
What I have difficulty believing is that people decide to discriminate on something as mundane as responding to resumes. Imagine that you work for human resources in Notes On Liberty Inc. Your job is to screen resumes and, if someone meets the bare requirements they get considered for recruitment. Regardless of whether they are recruited to the company or not, you don’t actually have to interact with this individual. You work a 9-5 shift and are based remotely somewhere in westwood. Why should you care if NoL Inc hires someone you personally dislike (say a Trojan fan), if you never interact with them?
One possibility, related to existence value for those versed in the environmental econ literature, is that the very idea of a Trojan fan being employed causes you distress. It doesn’t matter that you never actually interact with them. This distress is high enough that you are willing to both actively reduce their likelihood of being employed by NoL Inc and to increase the likelihood that your boss will fire you for unethical behavior.
Another possibility is that you, the human resource manager, aren’t discriminating against Trojan fans at all. It is possible that the algorithm that receives resumes from Trojan fans, for some reason, flags them as spam and filters them away before any human being gets involved. Maybe the algorithm mis-interprets the USC Trojan logo as an actual Trojan virus. Likewise is that possible that ethnically non-white names (e.g. Jamal, Xochitl) are flagged by resume algorithms as likely spam due to their relative weirdness.
If you’re willing to help me test this possibility, please click here.
India is in the middle of an anachronistic power tussle. Watching The Tudors right when the Indian Supreme Court is hearing submissions in the Sabrimala case placed before me an interesting hypothesis – the King v Church tug of war is replicating itself, albeit democratically, in the controversy surrounding the Essential Practices Test.
First introduced in the Shirur Mutt case (1954 AIR 282), the doctrine provides for a test that would make state interference justified under a Constitution that gives to her citizens (Article 25), the freedom to practice and profess their religion, and to religious denominations (Article 26), the right to manage affairs and administer properties, both being subject to restrictions on public order, morality, and health. Essentially, the test gives the Court the power to determine what constitutes “essential to the practice of the religion” and holds that everything non-essential is subject to legislative action by the State.
A number of scholars (Gautam Bhatia, Shreya Atrey) have commented on the un/desirability of the consequences of such a test. The clearest of them all comes from Jacobsohn who characterizes the test as an attempt to internally reform the religion by allowing the judges to “re-characterize the religion in a more progressive light”.
What has given these objections much weight is the support Justice Chandrachud has lent to the skepticism of judicial discretion bestowed by the doctrine. He questions the ecclesiastical function of the court and proposes to use constitutional morality as the one stop test for determining the constitutionality of a religious practice, instead of going the long way of finding the non-essential elements that may be subjected to progressive restraints. This adherence to the constitutional word is consistent with the treatment of the constitution as the new-age charter of a civic religion, a notion oft repeated and celebrated in India.
King Henry VIII’s ostensible zeal for reform came out of his hatred for papal supremacy. Divine rights of the Kings placed the King directly under God, and God alone. He would then become the supreme mortal in terms of matters relating to governance and spirituality. The Indian courts do not wish to claim any such supremacy over spiritual matters (yet). What they seek to do is social reform – a venerable objective behind the framing of the Indian constitution. In that, they seek to be not just interpreters and guardians of the constitution, but active participants of change in realizing the aims of the constitution.
But one must question this insistence that in religion, like with the legislation, there is an umbra and a penumbra and that the latter is so hierarchy placed that it may be interfered upon, whereas the umbra is so essential that it may not be touched. What is religion but not faith? And what is faith but not a collection of beliefs organically coalesced to create charters that may look different for each generation? Is it not possible that a religion undergo change so as to value a tenet A over B within a span of decades? Is it also not possible that A and B exist simultaneously without harming the essentiality of each other, howsoever inconsistent they might seem to an educated rational mind? Since when has religion been the epitome of moral consistency?
Much can be said on the justifiability of this aspiration. Much more can be said of the legitimacy of the court’s position on such matters. Democratically speaking, ridding a society of its ills is more likely to give positive results if it comes from a joined political action rather than from a bench of judges who, in all their wisdom, are not privy to a large section of the society. Of course, the Indian supreme court has “grounded itself” (a phrased used by Dr. Rajeev Dhavan) and has acquired the kind of legitimacy that demands respectful obedience from its supporters. And this has been primarily because of the non-traditional use of judicial description for activism against a falling parliament often mired in political games to care much about the legal and policy lacunae deserving attention.
Sabrimala is an especially thorny issue, not just because the judges must conclusively decide the path the judiciary wishes to take with respect to social reform but also because they can either be the ecclesiastical court and inform the citizens of the immorality (grounded in the constitution, no doubt but then looking at the vastness of the Indian constitution, it can probably accommodate all moral philosophers barring Peter Singer) of their actions or they can let arguably unethical practices live, giving individual liberty the space that separation of church and state demands.
There is a short thought, quoted by Paul K. Feyerabend in “Notes on Relativism”, that I’ve been thinking about a lot recently. Paul, ever critical of Western rationalism, is commenting at length on the expansion of (Western, capitalist) industrial scientific society to the margins of the developing world and minority cultures. He quotes François Jacob from The Possible and the Actual:
In humans … natural diversity is … strengthened by cultural diversity, which allows mankind to better adapt to a variety of life conditions and to better use the resources of the world. In this area, however, we are now threatened with monotony and dullness. The extraordinary variety which humans have put into their beliefs, their customs and their institutions is dwindling every day. Whether people die out out physically or become transformed under the influence of the model provided by industrial civilization, many cultures are disappearing. If we do not want to live in a world covered with a single technological, pidgin-speaking, uniform way of life — that is, in a very boring world — we have to be careful. We have to use our imagination better.
Prima facie, I want to say, the general message is correct: the world is slowly homogenizing, and homogeneity is boring. People no longer just consult their local markets and preserve culture organically; we buy and sell all over. Although Dallas and San Francisco have very different cultures, to some extent Los Angeles looks like Seattle looks like St. Louis looks like New York City… looks like Athens looks like downtown Rome, etc. This doesn’t explain what we should do — neither Jacob as quoted, nor Feyerabend in his entire book explain how we should “use our imagination better” (which is what makes this paragraph so unsettling). Feyerabend offers some views in other writings, e.g., using the state to intervene with the success of the sciences.
Feyerabend can be interpreted in a plethora of contradictory ways. Though co-opted by the political left (perhaps to their own detriment), far-right nationalists, primitivists and humanists can all find theoretical support in his ideas. He seems to have written surprisingly little specifically about capitalism, although there are plenty of implications in his anthropology; maybe understanding his views on political economy could provide the path to extracting a substantive political philosophy. In any case, the concern of Jacob and Feyerabend is a consequence of, to a large extent, the West’s powerful free markets, globalizing trade, science and universalistic liberalism. And, I want to say, their concern is not only prima facie correct but a growing left/right critique of Western capitalism/liberalism, and therefore one worth addressing.
There may not be a market approach to preserving cultural diversity; maybe all we can say is that so long as homogeneity is a result of the free interactions of individuals it is not undesirable. Here are a few responses anyway, which may or may not be satisfying.
Evaluating the consolidation of cultural diversity sits at an uneasy crossroads between rights concerns, utilitarianism and aesthetics. I’m not sure these responses would be satisfying to those that buy Jacob’s argument, but it’s likely I’ll be returning to this subject at length in the future.
Notes On Liberty 