The Constitution is not our religious book

There are two things you can do with a book. You can either keep it closed or open it and read it. Those who argue that the Indian Constitution is now our religious book could be referring to the book in either its closed or open state. In its closed state, our Constitution certainly has qualities that a religious book requires. It is large and bulky, its cover can be nicely decorated and it looks good on a pedestal. Like all religious books, the unopened Constitution serves well as a symbol of our civic religion. along with the Flag, the Emblem, the National Anthem and Bharat Mata. Like any symbol, it can take on the meaning we see in it. As long as we don’t try to open it and read it, the Book serves well as a symbol of the rule of law as a foundational principle of our Republic.

Now, I would like to clarify that despite the sarcasm you might have noticed in the previous paragraphs, I sincerely believe that the Constitution, in its closed form, does serve a useful religious purpose. I believe in nationalism, and nationalism does take on a religious aspect; we do need symbols that depict our national pride, and as a symbol, the Constitution does have a purpose.

I strongly object, however, to the idea of the Constitution as a religious book. Let me rephrase that: I strongly object to the idea of constitutions as religious books. I have many disagreements with our Constitution, but this essay is not about those. It is not the purpose of a constitution to serve as a guide to people’s morality.

People who follow religious books use them as guides to live their daily lives. They derive their sense of right and wrong from them and judge others by the standard of those books. They may also act to compel others to follow the precepts laid therein. I have heard arguments that now that we have a Constitution, it should supersede all previous religious edicts and that this is the only book that should guide our sense of right and wrong. This is deeply mistaken and reflects a misunderstanding of the purpose of constitutions.

The task of a constitution is to constitute the state, not the nation. It establishes the state and grants it certain powers. It designates the organs of the state and specifies the distribution of powers between them. It also clarifies the limits of the powers granted and establishes checks and balances to ensure that the organs of the state do not exceed their powers. It also recognizes a bill of rights for the people that act as a limit to the state’s powers over citizens. A constitution that grants the state certain powers does impose a reciprocal obligation on the people. If the government, exercising its lawful powers granted to it by the constitution, makes a law, citizens have an obligation to follow it. But from this, it does not flow that morality is coterminous with the law.

If a friend calls you over for lunch and when you do visit, he orders you out of his house and sends you back hungry, we can agree that he has behaved quite badly. You may feel entitled to retaliate by complaining about him in public, boycotting him and persuading others to do the same. You may find that religious books have something to say about his behaviour – refer to the parts that speak about how guests should be treated.

I hope you also agree that the Law’s say in this matter should be limited. It is his house, and he has a right to turn you out of it. You’d have a legal case against him if he were under contract to provide you with food, or his actions left you so hungry and cut off access to food to an extent that it endangered your life, but otherwise, his actions were awful, but lawful. You have a right to criticize him for his actions and take the retaliatory actions specified above, and he can’t stop your criticism on the grounds that his actions were lawful.

If you believe that the Law should involve itself in your friend’s behaviour and your reaction to it, you are giving it a role that we normally assign to God, a role that He’s able to perform only because he is omnipresent, omnipotent and omniscient. The state cannot be omni all those things in practice. It cannot be omniscient or omnipresent. A constitutional scheme that grants omnipotence to the state is not performing its basic role of limiting the powers of the state.

I hope that the above example disposes of the argument that the Law should intrude into the domain of morality. The reverse of this argument is that the boundaries of morality should expand till they cover everything that the Law allows. Recently, the remarks of a seer caused some controversy. He had made some unkind remarks about those who ate non-vegetarian food. Some of those who outraged over his remarks claimed that his remarks were unconstitutional. Why? Because the Indian Constitution recognized religious freedom, which included the freedom to eat what people chose to ate, by making comments criticizing some dietary choices the swamiji had violated constitutional morality.

The contradiction in the argument should be clear rather immediately. It is the same logical fallacy inherent in the question “Is it wrong to be judgmental?” The same constitution that protected the religious beliefs of the targets of the seer’s remarks also ought to protect his freedom of conscience and the right to express his beliefs. There is no way to recognize religious freedom at that level without circumscribing other freedoms of others. In practice, this is the only way to enforce the idea that the extent of morality is what Law allows.

There is a third interpretation of constitutional morality. This says that while constitutional morality ought not to be enforceable, but we should follow it in spirit. This means that we, and not just the state should practice secularism – not by enjoying the religious freedom that the state guarantees, but by doing the opposite of that – by keeping religion strictly private, by not wearing religious symbols, and so on. If that is the case, then presumably this should apply to all constitutional principles. Does it also apply to the idea of equality? Does loving your children more than that of others violate constitutional morality? Does having close friends violate it? If a company treats certain customers who pay extra as premium customers, does it violate the constitutional principle of equality?

The principle of equality actually means equality before the law. I am allowed to love my children and I am allowed to have friends. But if I am a public official, constitutional morality requires that in my actions as a public official, I treat them the same as other citizens. This is true for every constitutional principle. The constitution ought to function as a religious book for government officials. It lays down their Dharma. It is wrong to expand the definition of public officials to cover every action by a private citizen in public life.

For actions by private citizens, the boundaries drawn by a constitution are only the outer edges of what is morally permissible. Yes, the constitution overrides all religious books – if your religion says that it is permissible to kill apostates and the constitution says that killing is forbidden, the latter should prevail. But a constitution that uses this overriding power to intrude into every aspect of religious and personal life is no longer a constitution.

The Dangers of Labeling

I was going to write a post on this today, but coincidentally, Wired’s piece on 100 Things Your Kids May Never Know Abouthas “Toys actually being suitable for the under-3s” as one of those things. The United States of America faces a dystopian future where no child under 3 will havea toy he or she can play with.

Igot a taste of this future back in November, at a Toys R Us outlet in New York. I was searching for something to buy for my then 2 month old son toshow people what we got from phoren. Sadly, the only thing that was available was some cuddly soft toy that hummed tunes when its tummy was pressed. Indian children at that age have rattles and other toys to play with, but not their American counterparts.

I am back in India, and my son is now a few months older. I have managed to find some toys for him, butattempts tobuy high-end ones usually fail. Companies like Fisher-Price attempt to follow the same standard for labeling toys as they do in the US, and sadly this means that any interesting toy is labeled “Not suitable for children under 3”, because apparently those toys invariably have small parts that cause a choking hazard.

We were planning to buy an inflatable rubber tub to pour water into and let him splash about. Just as I took out my credit card, we saw the choking hazard warning. It took some detective work, but we finally figured out that the small part in question was the lid covering the inlet for air. The lid was attached to the tub, and it was exceedingly unlikely that a child would swallow it. In any case,responsible parents who will let 6 month old kids play in water will watch over them all the time. The warning label was obviously intended, not to protect children from choking, but manufacturers from lawsuits.

The danger from this defensive labeling is that either children will be left with no toys to play with, or parents, inundated with too many pointless warnings will start ignoring them, and some will also ignore real hazards.

Defending Modi’s Honour is Unnecessary

Ritwik’s lament is that all his arguments with me devolve into nitpicking. My response is, he starts it.For example, in my post about terrorism, I model Narendra Modi as being interested only in votes, not in combating terrorism. Ritwik’s response to that is that while is interested in both fighting terrorism and winning elections, and when there is a conflict between the two, winning elections takes precedence. In FitW’s formulation of the same point, Modi considers winning elections his patriotic duty to keep the evil Congress at bay, and therefore considers short term setbacks in the fight against terrorism as acceptable collateral damage.

This is an astonishingly subtle distinction, and I took some time to grasp it. The trouble is, this distinction has very little to do with my actual argument.

Continue reading

The Model of Law Enforcement

It so happens thatmy article in Pragatiis around 200 words shorter than it should have been, because it was supposed to be one of a set of 2, and had a reduced word limit than the normal Pragati article. Neither Nitin nor I are very strict about word counts while editing. If an article is well-written, we don’t care if it goes a couple of hundred words over. But while writingI am very very conscious about word limits. I set a target, constantly check my pace, and almost always ensure that I make the limit. When it became clear that Karthik’s article was not going to arrive, I was thinking of revising my article a bit, but then I had to rush to the hospital. So if I had given myself another 200 words, I would have been able to cover some of points I am covering now.

Continue reading

Me in Pragati

I have an article up in the October 2008 issue of Pragati. There I argue against Karthik’s poston statistics and terrorism. I argue that if we give a “free hand” to our police to fight terrorism without insisting that they obtain convictions from courts, we will not only end up with too many innocent victims, but also too few genuine terrorists. This was supposed to run in a debate format, with an article from Karthik and a response from me, but Karthik asked for a bailout at the last minute, which left only my article standing.

Response on Harvard

Commenter Froginthewell says:

I dont understand – Harvard is a private university, right? And this controversy is about propriety and not rights?

Well, yes. Harvard is a private university,butin thisnon-libertarian world, they are subject to various anti-discrimination laws which may or may not mandate or prohibit reserving a few hours for women in their gym. I am not aware of, and I am not really very interested in the details of those laws, but start from The Volokh Conspiracy if you are interested.

Secondly, my point was a defence of the libertarian position, which starts from the presumption that owners should be broadly free (legally) to do what they wish within their property. If you agree with the libertarian position, then what you are saying makes sense. We can agree that Harvard should be legally free to do what it did, and then debate the propriety of that decision. Those libertarians who think that Harvard’s decision was improper would still be free to protest that decision through non-violent demostrations, signature campaigns or boycotts.

But my argument, naturally enough, was not directed at those who agree with me. It was directed at those who do not hold the libertarian position, which means that they are open to enforcing their sense of propriety through legislation, i.e. it was directed at precisely those who do not agree with the distinction that Froginthewell’s comment is drawing. I am not aware of just how many people fit that definition, but I am confident that the proportion is high enough that I can say that I was not attacking a strawman.

Finally, it so happens that I do not agree with the view that this issue is about propriety.I think that this is, or ought to be, a pragmatic decision, based on costs and benefits, best made at the local level on a case-by-case basis. Having a law for this is bad, but even making this into an issue of “propriety” is unwise. There is no need to bring out the heavy artillery of religious freedom, “discrimination”, women’s rights, etc. I was pointing out that this libertarian “dogmatism” on property rights is what enables usto be non-dogmatic about everything else, while those who do not agree with our dogma have no choice but to turn every issue into one of law or propriety.

There is Still Time to Repent

Those who keep criticising us libertarians for being too dogmatic about our insistence on property rights as the source of other rights, look upon the weird controversy over reserving a few hours for women at the Harvard gym, and repent.

For, the truth is that a dogmatic respect for certain fundamental rights is what enables us to be easygoing about most other things.

An employee who belongs to an orthodox Jewish faith wants to cut a Friday evening meeting short, because he cannot be in a car when Sabbath starts at sundown. Should we accommodate his request? Muslim employees request some changes in meal timings during Ramzan. Should we accommodate them? Obviously, all such requests will cause some inconvenience to others. Is the cost too much? Are the beneficiaries a few or many? Are the the benefits worth it? Are the beneficiaries willing to make other accommodations to compensate?

To me, it seems like a good idea to make reasonable accommodations for people’s religious or other beliefs, where possible. Whether we should in any particular case depends on so many factors, so many costs, so many benefits and the conflicting interests of so many constituencies that it would be highly presumptuous of me to make blanket statements one way or the other. But what I can state is that letting property owners make the decision devolves the decision making to those who are closest to the decision and who have the most stake in the costs and benefits of that decision.

Or, you could turn this into a legal question involving esoteric principles. Well, good luck. When you are trying to make a law for this, you are moving the decision-making up to the top. Your quest for foolish consistency will inevitably lead to foolish decisions, because no law will provide for every nuance that would be involved in individual cases. There is still time. Come to Libertarianism my children!

Arresting Raj Thackeray

I have not been able to make up my mind on whether we should have laws against the kind of things Raj Thackeray says. Quite clearly, conspiring to commit violence should be punished. If I were to pick up a phone and ask a hitman to kill someone, I cannot claim free speech protection. I don’t see how anyone can claim free speech protection if he asked a crowd of people to do the same. The problem is that when people “incite violence” they do not use very precise words. A judge has to consider hidden meanings and effects of those words on “reasonable people”, and a person who listens to Raj Thackeray and then goes out to beat up North Indians is, by definition, unreasonable.

Continue reading