Courts as Modern Civic Churches?

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.

The Politics of the Incredibles (minimal spoilers)

I saw an early release of the Incredibles 2 last night. I wasn’t expecting too much given Pixar’s history with sequel. Finding Dorothy, Monsters University and the Cars sequels were okay, but below average for Pixar. I am happy to report that the Incredibles 2 was a pleasant exception. Not only did the film re-capture the magic of the original, it made a point that many readers and fellow Notewriters should appreciate: legality doesn’t equal right.

The film starts off directly after the events of the first film. The titular Incredibles family fights off the Underminer, a mining themed super villain. Instead of getting praised for their actions though, they get arrested. Superheroes are still illegal. The events of the past film haven’t changed that. One of the characters wisely remarks, “Politicians don’t understand why someone would do the right thing for its own sake. They’re scared of the idea.”

The family is let go, but they’re at a low point. Their home has been destroyed. They’re unemployed and broke. They’re gifted with super powers, but they live in a world where they can’t legally use them. That’s when a businessman approaches them and asks – why not use their super powers? The businessman proposes that the family continue to use their powers illegally, and convince the government to change the law after the public has been shown how useful superheroes are. This leads to a funny exchange where the characters argue about how they’re being asked to be illegal in order to become legal.

I won’t spoil the remainder of the film, but I love the businessman character’s early scenes. It’s refreshing to see a corporate character, and his disregard for legislated morality, portrayed in a positive light. Tony Stark/Iron Man starts off this way in the early MCU films, but makes a u-turn by Captain America: Civil War. This new character, for better or worse, stands by his beliefs.

The tension between legislation and morality isn’t a new theme for Pixar. The idea of breaking the rules to do what’s right was a central feature of Monsters University as well. It’s a lesson I think many children, and their parents, could benefit to learn. Legislation isn’t morality.

I give the film a solid 9/10. It’s around Wall-E or Up levels of quality. It’s easily one of the funniest Pixar films in a while. The animated short before the film is, as standard for Pixar, a tear jerker. Bring some tissues.

Thoughts? Opinions? Post in the comments.

Is minimalism immoral?

I came across a simple but important question on Quora: Is it wrong to aspire to be a minimalist? Doesn’t this negatively affect the country’s GDP?

I see two big lessons here: 1) wise use of metrics requires wisdom… i.e. appropriate interpretation and critical thinking. 2) Maximization is just one version of one part of the whole story. (There are also important questions to ask about what we can expect from others, but I’ll leave that for the comments.)

Readers of NOL should be familiar with the notion that GDP is only an imperfect proxy for well being. But not everyone is so we have to repeat ourselves. There’s what we’re after, and there’s what we can measure, and the two are not the same. GDP is a really clever way to aggregate total production in an economy, but production is only valuable to the extent we’re producing the things that actually improve people’s lives. It’s easy for busy people to confuse a proxy measure for the latent variable we actually care about, so we need someone whispering in the emperor’s ear “the metric is not the mission.

Economics is easier to describe using the simplifying assumption that people want more stuff. It’s easy to forget that people also want more leisure (and so less work). This is a subtle reappearance of the seen and unseen. We can see when someone gets a cool new car and we can’t see when someone has a fun evening with friends and family. We have to check our bias towards trying to get more stuff and remember that reducing work is another feature of human flourishing.

A preliminary argument against moral blameworthiness

For a while now I’ve advocated not an absence of morality, but an absence of moral blameworthiness. Here’s a first, brief attempt to jot down the basic idea.

There’s two arguments. First let’s consider the epistemic conditions that must hold to make a moral judgment. For any enunciator of a moral judgment, e.g. “this murder, being unprovoked, was wrong,” the speaker must have knowledge of specific details of the case — who committed the crime? was there malice aforethought? — and also moral knowledge, knowledge with normative validity. To judge something as moral or immoral, then, requires information of one kind which is open to forensic methods and of another kind which is … highly contested as to its epistemic foundations. Obvious thus far. Now, this is the situation of the bystander judging retroactively. The perpetrator of the immoral act is in an even worse predicament. Most people would agree, as a basic axiom of juvenile jurisprudence, that a person must have “knowledge of right and wrong” in order to be morally blameworthy. This allows us to discriminate between mentally competent adults, on the one hand, and children or mentally challenged individuals on the other. However, like we have said, this domain of right and wrong is highly contested by highly intelligent people, enough to cast skepticism into all but the most stubborn, and so most people, acting according to their ethics, understand themselves to be acting uncertainly. And, unlike the bystander judging retroactively, the perpetrator is on a time crunch, and must make snap decisions without the luxury of an analysis of the objective conditions — who, what, how, why — or a literature review of the subjective conditions, the theories.

So, to sum up, moral blameworthiness requires knowledge of right and wrong. This knowledge is highly contested (and widely considered to be emotional rather than rational); thus, people must act, but must act under highly uncertain information. Without an agreed-upon rubric moral action is more or less guessed. The doer is in a more uncertain situation than the judger so his judgment is likely to be less justified, more forgivably wrong.

Okay, but now as a friend has pointed out, where morality is highly contested is on the margins, and not the fundamentals. There is a lot of agreement that unprovoked murder is wrong, this does not seem highly contested (though certainly there is disagreement provided the forensic circumstances). So, can we not hold a murderer morally accountable?

Here, in response to that, is the second argument, which is much more fundamental and probably exposes me to some logical consequences I don’t want to accept. With action, there is something we could call a “regression to non-autonomy.” Traditional perspectives on morality and punishment emphasized the individual making a choice to commit an offense. This choice reflected bad moral character. More recently, the social sciences have impacted the way we think about choices: people are shaped by their environments, and often they do not choose these environments. Get the picture? But, it is even worse than that. We could say that the murderer chose to pull the trigger; but, he did not choose to be the sort of person who in that situation would pull the trigger. That person was a product of their environment and their genes. Aren’t they also a product of “themselves”? Yes, but they did not choose to be themselves; they simply are. And, even when someone “chooses to be a better person,” this choice logically presupposes the ability to choose to become a better person, which, again, is an ability bestowed upon some and not upon others and is never of our own choosing. Thus if we go back far enough we find autonomy, or a self-creative element, is not at root in our behavior and choices. And non-autonomous action cannot be considered morally blameworthy.

This is my argument (I do not claim originality; many people have said similar things). The murderer is doing something immoral, but finding them worthy of blame seems, to me, almost if not always out of the question. This ends up being hard to accept psychologically: I want to find history’s greatest villains morally culpable. I cannot, though. Instead of any sort of retributivist punishment — found, now, to be psychologically satisfying but morally confused — we are left only with punishment policy that seeks to deter or isolate offenders, the category of “moral blameworthiness” found to be lacking.

I invite criticisms of the arguments as sketched out here — preferrably, ones that don’t require us to get into what actually is moral or the status of free will.