Subject: Jurisprudence – An Introduction to Legal and Political

Philosophy
Instructor: Sidharth Chauhan (Assistant Professor, NALSAR Hyderabad)
Timeline: May-June 2020
Outline of Coverage

Weekly Unit Session Plan Topics for Coverage Instructor's Remarks /

Reading from Textbook

Unit 1: Session 1 Approaches to Legal Philosophy -Tom Campbell, 'Legal Studies' (pp.
Ideological 226-253).
Frameworks Session 2 Conservative Political Thought -Anthony Quinton & Anne Norton,
'Conservatism' (pp. 285-311).
Session 3 Strands of Liberalism -Alan Ryan, 'Liberalism' (pp. 360-382).
-Barry Hindess, 'Marxism' (pp.
Session 4 Marxist Thought 383-402).
-Jane Mansbridge & Susan Moller
Session 5 Feminism in Law and Politics Okin, 'Feminism' (pp. 332-359).
Unit 2: Session 6 Analyzing Political Authority - Patrick Dunleavy, 'The State' (pp.
State, Civil 793-803).
Society & Session 7 What is the 'Social Contract'? -Jean Hampton, 'Contract and Consent'
Rights (pp. 478-492).
Session 8 Conceptualizing Civil Society - Rainer Forst, 'Civil Society' (pp.
452-462) & Richard Flathman,
'Legitimacy' (pp. 678-684).
Session 9 Constitutionalism and the Rule - C.L. Ten, 'Constitutionalism and the
of Law Rule of Law' (pp. 493-502).
Session 10 Concept of Rights - Jeremy Waldron, 'Rights' (pp.
745-754) & Charles R. Beitz, 'Human
Rights' (pp. 628-637).
Unit 3: Session 11 Theories of Equality -Richard Arneson, 'Equality' (pp.
Equality & 593-611).
Community Session 12 Distributive Justice -Peter Vallentyne, 'Distributive Justice'
(pp. 548-562) & Alan Hamlin, 'Welfare'
(pp. 852-864).
Session 13 Can There be Historical Justice? -Martha Minow, 'Historical Justice' (pp.
621-627) & Phillipe V. Parijs,
'International Distributive Justice' (pp.
638-652).
Session 14 Religious Toleration - R. Scott Appleby, 'Fundamentalisms'
(pp. 403-413) & Stephen Macedo,
'Toleration' (pp. 813-820).
Session 15 Multiculturalism -Will Kymlicka, 'Community and
Multiculturalism' (pp. 463-477).

The soft copy of the following textbook will be circulated among the VLS students in
advance. They are required to read the relevant chapters listed in the above table.
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 ⦁ Robert E. Goodin, Philip Pettit & Thomas Pogge (eds.), A Companion to
Contemporary Political Philosophy, 2nd edn. (Blackwell Publishing, 2007).

Apart from this textbook, soft copies of the following books are being circulated
among the VLS students for self-study and further reading:

⦁ Austin Sarat (ed.), The Blackwell Companion to Law and Society (Blackwell
Publishing, 2004).
⦁ Suri Ratnapala, Jurisprudence, 2nd edn. (Cambridge University Press, 2013).
⦁ Raymond Wacks, Philosophy of Law: A Very Short Introduction (Oxford
University Press, 2006).

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Jurisprudence – An Introduction to Legal and Political Philosophy
Instructor: Sidharth Chauhan (Assistant Professor, NALSAR Hyderabad).

Session 1: Why Should We Study Legal Philosophy?

This course will introduce you to the philosophy of law, which will serve as a
foundation for much of your coursework at law school. It will equip you with the
conceptual tools needed for engaging in legal reasoning and providing holistic
analysis of official legal sources such as legislation, judgments and administrative
rules. During this course, we will examine several ideas and texts that will help you to
think about legal processes and controversies with considerable depth. More
significantly, we hope that you will become comfortable with the notion of arriving at
multiple answers to a given social or legal problem and evaluating them from different
points of view.

It is useful to begin by reflecting on what the concept of ‘law’ means to each one of
us? If it is a tool of social control, how is it distinct from other systems of social
control such as organised religion, market institutions or governmental structures?
Does our understanding of law depend on cultural particularities or is there a universal
conception of law? What are the basic features of a modern legal system? What are
the acknowledged sources of law in the same?

In a general sense, the field of legal philosophy (or ‘jurisprudence’ as it is also called)
principally asks two branches of questions.
⦁ Firstly, what is the nature of law? Is it derived from a determinable set of
authoritative sources or is there an inherent fluidity in what serves as the basis
of law?
⦁ Secondly, what methods should be adopted to interpret and apply the
presumptive sources of law when disputes arise as to their meaning? The
answers to these questions have evolved distinctively in different legal
traditions. Apart from formal processes of legal change such as the enactment
of legislation, the framing of administrative rules and the pronouncement of
judicial decisions, there are other factors that contribute to the same such as
customs, institutional structures and scholarship.
We will concentrate on the major currents in the scholarship which addresses the two
questions outlined above.

The ‘natural law tradition’ suggests that the validity of official sources of law should
be derived from norms established by higher sources, which could range from
religious beliefs to humanist moral reasoning and ethics. With the evolution of liberal
democratic institutions, there was considerable disputation of this view since it seems
to enable a high degree of subjectivity in addressing specific disputes.

In response, some other scholars framed the position of ‘legal positivism’ which
describes official sources of law as part of a self-validating system that ultimately
relies on ideas of political authority. This approach situates the formal study of law as
an autonomous discipline and pursues the objectives of clarity and predictability in the
eyes of the participants in a legal system. There are internal disagreements among
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those who subscribe to these two positions.

Legal scholarship in the 20th century emphasized a third strand, namely ‘Legal
Realism’, which treats official sources of law as derivatives of human behaviour. In
this view, disputes about the meaning of rules cannot be addressed without
understanding the background and motivations of the individuals (as well as
institutions) who are involved in creating, interpreting and enforcing them. As
opposed to the legal positivists, this approach firmly situates the study of law in the
larger realm of the humanities and the social sciences. Contemporary legal scholarship
has extended the key ideas of ‘Legal Realism’ to highlight problems that arise when
legitimate interests are excluded while creating law as well as when the interpretation
and enforcement of laws have a discriminatory impact. We can trace the development
of distinctive realist approaches to legal philosophy under the framework of ‘Critical
Legal Studies’ (CLS) which has further sub-divisions such as ‘Feminist Legal
Theory’, ‘Critical Race Studies’, ‘Law and Poverty’ among others. While the
'Economic Analysis of Law' is also viewed as an outgrowth of the realist approach to
Jurisprudence, its foundational assumptions are at cross-ends with the 'Critical Legal
Studies' Movement. It privileges the pursuit of efficiency in the design of legal
institutions and seeks to interpret rules so as to incentivise compliance by the various
stakeholders in a legal system. The 'Law and Society' Movement is yet another
extension of the realist framework in legal studies. This approach situates the analysis
of rule-making, adjudication and enforcement in the backdrop of empirical research
focused on various social institutions.

Students can perhaps refer to the following list to understand the distinctive
approaches to the study of legal philosophy:

Cluster 1:
The 'Natural Law Tradition' emphasizes pre-existing higher sources of Law, such as
religious beliefs or humanist moral values which ultimately shape the content of
customs, legislations, administrative orders/rules and judgments. In other words, this
approach has two distinctive strands, namely:-
(a) 'Theological/Religious' approach
(b) 'Humanist/Secular' approach

Cluster 2:
'Legal Positivism', also described as the 'Formalist' approach which stresses upon the
'Blackletter' tradition in legal analysis and interpretation. This entails the treatment of
law as an autonomous discipline which has its own internal logic for identifying,
classifying and interpreting sources of law. However, the academic work in this area
can be differentiated into two separate strands:
(a) Exclusive Legal Positivism: An approach that insists on a strong separation
between moral judgments and legal analysis. John Austin (The Province of
Jurisprudence Determined, 1867) is largely viewed as a proponent of this approach
who was responding to the problems of subjectivity in the Natural Law Tradition.
(b) Inclusive Legal Positivism: An approach that views legal analysis and
interpretation as a distinctive field of knowledge, but acknowledges that it requires
insights drawn from other disciplines such as sociology, economics, political
philosophy and intellectual history to name a few. H.L.A. Hart (The Concept of Law,

4
1961) is credited for framing this approach and setting the agenda for modern studies
in jurisprudence. Examining his scholarly exchanges with Lon Fuller (The Morality of
Law, 1964) and Ronald Dworkin (Law's Empire, 1986) are vital to understand the
progression of this field.

Cluster 3:
'Legal Realism' entails that we study jurisprudence in an interdisciplinary manner. The
basic insight is that legal analysis and interpretation does not have an internally
coherent structure and that more importance should be given to the actual social
consequences of the operation of laws. One way to understand this approach is to
invoke the distinction between 'Law in the Books' and 'Law in Action' which was
stressed upon by Roscoe Pound. The early movement in this approach was towards a
sociological approach to legal studies, but over time it has diversified into separate
branches. Some of the prominent ones include:
(a) Sociological Movement in Law / 'Law and Society' Approach
(b) Economic Analysis of Law
(c) Marxist Critique of Legal Positivism
(d) Feminist Approach to Jurisprudence
(e) 'Critical Legal Studies', which foregrounds the voices and interests of groups
facing marginalisation and exclusion based on gender/religion/caste/language/sexual
orientation/disability among other markers.

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Jurisprudence – An Introduction to Legal and Political Philosophy

Instructor: Sidharth Chauhan (Assistant Professor, NALSAR Hyderabad).

Session 2: What do we mean by Conservatism?

Key elements of Edmund Burke's Ideas (Reflections on the Revolution in France,

1789)
⦁ Attitudes towards Change, disapproval towards sudden, large-scale disruptions
⦁ Skeptical of Abstract and Normative Political Knowledge, Preference for
Practical approach to Politics grounded in accumulated experiences
⦁ Emphasis on organic ties and inter-connectedness (distinctive national cultures
as opposed to universal claims about human nature)

Conservative attitudes towards religion / family / property / nationalism

How do conservatives view core constitutional values such as liberty, equality,
fraternity?

What is the difference between socio-cultural, economic and political ideas of

conservatism? How do these strands relate to legal conservatism? Is legal
conservatism the same as a formalist or positivist approach to the study of
jurisprudence? What are the problems in adopting a conservative approach to the
interpretation of legal sources such as customs, legislations, administrative orders and
judicial decisions? Does legal practice prefer a textualist approach towards
interpretation as opposed to a purposive approach?
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How should we situate Social-Cultural Conservatism?

Emphasis on tradition and continuity in social institutions (family, religion,

workplace, political institutions) so as to maintain stability
Radical or Sudden changes in social institutions can lead to instability, resentment and
continuing conflict --- Progressive Changes must be brought in a gradual and
incremental fashion, with each step being carefully considered

How should we situate Economic Conservatism?

State should play a limited role in regulating markets, respecting the initiatives and
wisdom of citizens and business entities (Classical Economics)
vs.
State should play an interventionist role in the economy to address socio-economic
inequalities (Welfare State Liberalism, Democratic Socialism)

How should we situate Political Conservatism?

Anarchism-------Marxism/Socialism-----------Liberalism---------Conservatism---------
Authoritarianism -----------------------------------------------------------------------------------
(Fascism/Totalitarianism/Elitism)

Where do we locate Legal Conservatism?

Textualism (Blackletter Tradition), formalism seeks to ensure certainty and precision

in the interpretation of legal sources. Concrete meanings enable accurate predictions
about outcomes as well as consistency in future decision-making
vs.
Pragmatic Approach, that seeks to balance stability with justice, often based on 'rule-
scepticism'. Hence, it becomes essential to explore uncertainties and ambiguities in
rule-making, enforcement and adjudication.

Example for Discussion:

Should Courts intervene in religious practices that reflect discrimination based on
caste and gender? Consider the examples of Temple Entry Cases. Are there different
strands of conservatism at play in these controversies? If constitutional rights and
precedents are taken as authoritative sources, then legal conservatism will negate
social-cultural conservatism in the specific context of these cases.

We must learn to distinguish between the Conservative-Liberal binary in terms of:

⦁ application to the subject-matter of a legal dispute
⦁ application to interpretive methods.

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Should Judges lean in favour of Legal Conservatism? Or Should they be guided by
other ideological frameworks which help us to understand legal interpretation in light
of social, economic and political realities?

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--------------------

Jurisprudence – An Introduction to Legal and Political Philosophy

Instructor: Sidharth Chauhan (Assistant Professor, NALSAR Hyderabad).

Session 3: What do we mean by Liberalism?

At the normative level, 'Liberalism' prioritizes the recognition, protection and

expansion of personal freedoms, be it in the context of political institutions, socio-
cultural institutions or economic institutions. Here we may refer to personal freedoms
or liberties as constantly evolving ideas rather than static ones. Some commentators
see Liberalism or 'Progressivism' as the polar opposite of 'Conservatism' which is an
approach that invokes the importance of tradition and continuity in ordering our
communities.

However, it would be a conceptual mistake to use this 'Liberal-Conservative' binary in

a simplistic manner. An empirical (or descriptive) understanding of politics often
shows intersections between supposedly 'liberal' and 'conservative' positions. For
instance, centre-right political parties often combine preferences for socio-cultural
conservatism (e..g. Non-intervention with religious practices) with arguments for
economic liberalism (e.g. promotion of private business and investment). On the other
hand, 'socialist' or left-of-centre political parties often combine preferences for
progressive social policies (e.g. restrictions on discriminatory customs) with economic
policies that require considerable state intervention in order to address inequalities in
the possession of property or acquisition of income. To take some extreme examples,
authoritarian governments have been known to be business-friendly or reform-minded
while democratic governments often pursue welfarist or protectionist policies.

How should we situate Political Liberalism?

Anarchism----- argues for unlimited personal autonomy, where an individual decides

on the reasons for acknowledging the authority of political/social/economic
institutions

Marxism/Socialism---- These approaches argue for considerable State intervention in

order to address the existing socio-economic inequalities in a given polity. 'Marxism'
is deeply critical of the institutions of electoral democracy, organised religion and
private property, viewing them as bastions of the dominant property-owning classes. It
positions itself against political liberalism for its support of capitalist structures and
hence argues for the reconstruction of the State in a manner that prioritizes the
interests of the working classes. 'Democratic Socialism' is different since it tries to
arrive at an intermediate position between Marxism and Liberalism, by seeking to
integrate policies of economic redistribution (of material resources and opportunities)
within the working of democratically elected institutions.

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Liberalism--- Central Ideas discussed below:
1) Respect for Personal Autonomy through Primacy of Democratic Institutions,
2) Separation Between Religion and Politics
3) Regulation of Markets so as to ensure development and prosperity

Conservatism------ Central Ideas outlined in previous session

⦁ Preference for continuity of older institutions, deeply skeptical of radical
disruptions
⦁ Puts the invocation of practical experience in politics over abstract principles
to explain political interests or actions,
⦁ Prioritizes the interests of the collective entity (family, organised religion,
nation state) over those of the individual

Authoritarianism ------Arguments for concentration of political power

(Fascism/Military Dictatorship/Theocracy/Elitism)

Key elements of Liberalism (as framed by Alan Ryan)

⦁ Anti-Absolutist Strand (Respect for Personal Autonomy): This is premised on

the distrust of the concentration of power in a few hands. This idea captures
the shift in power from the monarchy towards parliamentary democracy in
Late-Medieval Europe. It also forms the core of Modern Constitutionalism by
shaping principles such as the separation of powers (between the Executive,
Legislature and Judiciary) and federalism (distribution of powers among
different levels of government). Liberal Democracy is also premised on the
idea of giving voice to the citizens through participation in voting, electoral
representations and different forms of public engagement. One can also locate
the justifications for codifying individual and group rights in this strand of
thinking.

⦁ Anti-Theocratic Strand (Secularism): Insists on a separation between political

power and organised religion. While Western Secularism emerged from a
long-power struggle between the Clergy and Royal Authority, the implantation
of this idea in many other nations took place through colonial rule. Hence,
there are arguments about 'cultural relativism' and how western-style
secularism may not be suited to deeply religious societies. In Indian
Constitutional Law, the argument has been framed as one between (a) 'No
Concern' Secularism that seeks to erase religious identity from the public
sphere and (b) 'Equal Respect' Secularism that seeks to preserve and build
respect for political authority through the public recognition of religious
differences and fair treatment towards them.

Points for reflection: What are the inherent problems with mixing religion and
politics? Does it pave the way for religious majoritarianism or even a theocratic
political order? How do religious beliefs shape attitudes towards voting,
representation and deference to political authority?

8
 ⦁ Regulation of Capital (Economic Liberalism): Ideas of Economic Liberalism
have developed through different stages in modern history:-
⦁ Classical Economics (Late 18th century): Adam Smith argued that the State
should play a limited role in regulating markets, respecting the initiatives and
wisdom of citizens and business entities. His theories were invoked to seek the
reduction of tariffs in international maritime trade as well as the easing of
licensing conditions for domestic traders
⦁ Welfare State Liberalism (Mid 20th century): The Great Depression of the
1930s and the economic hardships resulting from the Second World War, gave
credence to arguments that the
State should play an interventionist role in the economy to address socio-
economic inequalities
(Key intellectual figures include John Maynard Keynes, John Rawls and
Amartya Sen).
⦁ Neo-Liberalism (Late 20th century): Emerged as a response to the expansion
of Communism as well as Welfare State Liberalism. The key idea is that the
State should gradually reduce its role in economic regulation, thereby
encouraging private entrepreneurs to drive innovation and productivity in
different sectors.
(Key intellectual figures include Friedrich Hayek, Milton Friedman and Jagdish
Bhagwati)

Points for reflection: How do we locate ideas of economic liberalism in Indian

politics? Can we clearly identify groups and formations that support welfarist
redistribution policies as opposed to others who are closer to the Neo-Liberal position
which favours minimal state intervention in economic affairs?

Examples for discussion:

-What is the ideological/philosophical basis for progressive taxation?
-Why should the State legislate on the issue of minimum wages for workers?
-Why should the State have the power to acquire land from private parties?

These examples will be discussed more closely when we reach Sessions 11 & 12
which will be devoted to the 'Theories of Equality' and 'Distributive Justice'
respectively. At that stage, we will primarily discuss the ideas of John Rawls
('Difference Principle') and Amartya Sen ('Capabilities Approach').

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Jurisprudence – An Introduction to Legal and Political Philosophy

Instructor: Sidharth Chauhan (Assistant Professor, NALSAR Hyderabad).

Session 4: How do we understand Marxist Political Thought?

'Marxism' as a theoretical formulation is deeply critical of the:

(a) working of the institutions of electoral democracy,
(b) influence of organised religion in shaping social attitudes
9
(c) the conceptualisation of 'private property' and its defence in classical economics,

As an intellectual tradition, Marxism looks at history through the lens of a continuous

class-struggle, primarily between property-owners and the working classes. It
presupposes the problem of 'economic determinism', that is the nature of economic
organisation in a given society forms the base around which social and political
institutions are designed. It positioned itself both against Conservatism as well as the
early articulations of political liberalism. The critique of 'Conservatism' was based on
the undue importance given to customary knowledge and religious beliefs, most of
which reinforced patterns of class-based domination. The critique of 'Liberalism' was
based on the latter's support of 'classical economics' (which favoured respect for
economic initiatives and enterprise) and hence argued for the reconstruction of
governmental structures in a manner that prioritizes the interests of the working
classes.

Such an assertion would require the development of a 'class consciousness' among

those who provided labour under deeply exploitative conditions. In simple terms, the
Industrial Revolution had created systems of economic production where the surplus
value created by workers was largely appropriated by the capital-owners, without
adequate care being given to their immediate needs. The rise of factory-based
production had created conditions where workers were increasingly alienated from
both the fruits of their own labour as well as the overall economic development and
prosperity that was promised by 'classical economics'. While the organisation of
workers and farmers' interests through trade unions and cooperatives are seen as
necessary steps to increase their bargaining power within capitalist societies, the
ultimate objective is to replace the existing governmental structures and create a
'dictatorship of the proletariat'.

According to Barry Hindess, the most familiar recurrent features in the Marxist
Ideology are:
• A Sociological Theory of History and social change in which ideas of class struggle
(primarily between capital and labour) and the development of economic relations
play a major explanatory role;
• the claim that Marxism offers a critical analysis of society which also defines a
socialist political project – ‘the philosophers have only interpreted the world’, Marx
asserted in his Theses on Feuerbach, ‘the point however, is to change it’, Marx (1845).
• an insistence that, unlike many competing ideas of socialism, both Marxist theory
and its political project are grounded in contemporary scientific knowledge as opposed
to other ideological frameworks which emphasize knowledge from sources such as
religious beliefs (Conservatives) and abstract moral philosophy (Liberals).

'Communism' as practiced by the Soviet Union (1917-1991) drew inspiration from the
Marxist objectives of improving the socio-economic conditions for the working
classes, but also tended towards authoritarianism in the functioning of its political
organisation. This was most evident during the tenure of Joseph Stalin (1929-1953)
who used the state machinery to suppress dissidents as well as rivals within the
Bolshevik Party. A famous example being the assassination of Leon Trotsky (who
was once a close friend of Vladimir Lenin) in Mexico in 1940. After the Second
World War, the Soviet Union directly influenced the political orders of several

10
Eastern European nations, using both military force (Czechoslovakia and Hungary
being prominent examples) and economic power. The growth of Communism in other
locations such as Latin America and China had its own organic roots.

'Democratic Socialism' as it has evolved during the latter half of the 20th century
(primarily in Western European nations such as France, Germany and Italy) is
different since it tries to arrive at an intermediate position between Marxism and
Liberalism. It seeks to pursue policies of economic redistribution (of material
resources and opportunities) within the working of democratically elected institutions.
In this sense, the social democrats of today have departed from a key element of
Marxist thought which saw elected institutions as being inherently dominated by the
capital-owning classes.

Even in Indian politics, one can see a clear distinction between political parties that
have positioned themselves around 'Socialist' ideas (think of the Janata-Parivar parties
that exist today such as SP, JDU, RJD, BJD, JDS) as opposed to 'Marxist' ones (such
as CPI, CPI-M). Among the Marxist parties, there has been a fragmentation between
the 'Parliamentary Left' and the 'Insurrectionary Left'.

Influence of Marxist Thought on Academic Inquiry

1) Critical Theory (Frankfurt School): Examines the functioning of governments,
markets and civil society institutions as part of an integrated 'public sphere',
where more emphasis is being placed on 'communicative rationality' as
opposed to older justifications for acknowledging the authority of political,
economic and social institutions. In this sense, the working of 'civil society'
institutions becomes very significant as they perform the dual functions of (a)
regulating the behaviour of individuals through norm-setting, and (b) laying
down the criteria for judging the legitimacy of governmental action, especially
by enabling independent public discussion and scrutiny of the performance of
public officials. The most well-known scholar who has articulated this
approach is Jurgen Habermas.
2) Marxist 'Anti-Humanism': Skepticism towards Empirical Approaches (Based
on Scientific Observation/Description of Human Behaviour) of knowledge-
production which are usually preferred by the Modern Liberal Tradition;
Preference for theorisation of political, social and economic institutions based
on fully formed ideological positions, such as the idea that individuals can
transcend their existing socio-economic location and re-formulate their own
consciousness. This approach was advocated by Louis Althusser in the 1960s.

Point for reflection: Think about the 'Ideas v. Experience' debate in the humanities and
the social sciences. For example, anti-caste scholars and activists in India argue that
applying Marxist analysis of social relations based on the cateogory of 'class' is
inadequate to understand the complexity of caste-based discrimination in our society.
For starters, caste-based hierarchies exhibit a problem of 'graded inequality' between
thousands of groups as opposed to a binary opposition between capital and labour.
Furthermore, Marxist parties are criticized for not giving leadership opportunities to
persons from historically marginalised caste backgrounds.

3) Analytical Marxism: An approach that suggests the use of the Marxist

11
 intellectual frame to study contemporary political, economic and social
relations. For example, Marxist ideas such as 'economic determinism' and
'social alienation' can be used to explain structural forms of discrimination and
exclusion in contemporary societies – both at the national and institutional
level.
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Jurisprudence – An Introduction to Legal and Political Philosophy

Instructor: Sidharth Chauhan (Assistant Professor, NALSAR Hyderabad).

Session 5: What is meant by Feminist Stances in Politics and Law?

Unlike Conservatism, Liberalism and Marxism, Feminism cannot be described as a

distinctive ideological framework bearing a clear chronological development. Instead,
it can be described as a stance or position that can be found in intersection with
several other ideologies and cultural contexts. At the core, Feminism entails a line of
thought that seeks to eliminate male-domination in different spheres of life, be it in
the working of political, economic and social institutions or the supposedly private
sphere of the family/household. Feminist social science and political philosophy
begins with three central questions: (i) How did male domination arise?, (ii) Why was
it so widely accepted? and (iii) What are its consequences? How, until recently, have
men managed with a semblance of legitimacy to exclude women from formal politics
in almost every tribe, state and civilization on the globe? And what are the current
implications of this history for women, for human relations, for philosophy and for
politics?

According to Jane Mansbridge, three common factors can be found in the different
varieties of Feminist thought :-
1) First, feminism privileges 'lived experiences' of women as well as other
subordinated groups (as opposed to Liberals who tend to prioritise abstract
theorisation about human behaviour). A direct report of the way one perceives
one’s own experience has great weight with feminists trying to make sense of
their world. Much of feminist theory is thus inductive, proceeding from
particular observations towards general inferences. This is in contrast to
deductive reasoning which begins with general principles and proceed
towards particular conclusions.
2) Second, feminism is not easily systematized. Its experiential plurality,
proceeding from different experiences differently perceived, constantly undoes
attempts to derive a full theory from a single point, or make all pieces fit a
coherent whole.
3) Third, feminism makes the personal political. Real experiences of gender
domination cut across the formal lines that divide the public sphere
(government, market institutions, civil society actors) from the private sphere
(household/family/intimate relationships). They require for their explanation a
political theory that assumes the interpenetration of these spheres.

In the past few decades it has become especially clear how deeply the feminism of all
individuals rests on their own cultural, ethnic, religious, class, sexual and individual

12
pasts and projected futures. In most cultures, women in dominant groups are likely to
articulate feminist principles first. For example, the demand for voting rights for
women in India (during the freedom struggle) were initially made by Upper-Caste
Women members of the Congress Party who also happened to be highly educated. In
comparison, the socially significant demand for 'equal pay for equal work' found its
way into Labour Laws several decades after Independence. Such examples often lead
to the criticism that demands for action based on Feminist thought are affected by a
'class-bias'. However, the same can be said for any of the other significant ideological
frameworks which we have examined so far.

Questioning the Public-Private Divide

As discussed above, Feminist thought strongly rejects the premise of the 'Public-
Private' divide which had informed the development of liberal political thought for
several centuries. According to Carole Pateman (The Sexual Contract, 1988) the
public sphere has been largely imagined as the domain of men who act on 'reasoned
self-interest' as opposed to the private spaces of the family where women are wrongly
stereotyped as acting on their emotional impulses. For example, ancient conceptions
of citizenship were often tied to masculine characteristics such as the ability to
physically fight for one's country and the possession of property which would yield
revenue for the State. On the other hand, feminine characteristics such as the
responsibilities of childcare and management of the household (which are far more
fundamental to sustain a society) were not placed at the same pedestal. Even in the
Late-Medieval period, the early arguments for liberal constitutionalism spoke about
the need for distributing power in the public sphere (through recognition of rights,
limiting powers of elected institutions) but did not do much to address patterns of
male-domination (patriarchy) that fundamentally shape the relationships within a
household.

Feminists have pushed back against this dichotomy by arguing that an individual's
capacity for political participation is shaped or nurtured by the environment at home.
Hence, the pursuit of constitutionally entrenched ideals (such as liberty, equality and
fraternity) will be meaningless if political and legal processes did not redress the
existing patterns of gender-based inequality that pervade our private lives. In the
Indian context, while the demand for the right to vote was a initial step in this
direction, subsequent legal interventions include the codification of family laws (on
aspects such as marriage, succession, inheritance) so as to remove/mitigate
discriminatory customs as well as legislative proscriptions against Child Marriage,
Dowry and Domestic Violence among others. One can also think of more recent
changes such as a longer period of maternity leave (extended from 3 months to 6
months) and the proposals for introducing 'paternity leave' so as to confront
stereotypes about who is responsible for childcare. The more difficult questions relate
to issues involving violent behaviour such as the incidence of 'marital rape' and 'child
sexual abuse'. While State intervention can be defended on grounds of gender-justice,
the practical problems of under-reporting (largely due to concerns about social stigma
and backlash against the victim) and the immediate threats of witness-intimidation
and destruction of evidence come to mind.

'Sameness', 'Difference' and 'Domination' in Rethinking Liberal Concepts

13
Feminists have taken three approaches to the issue of women’s differences from men.
⦁ One approach, completely compatible with liberal theory, stresses the
sameness of the subordinate to the dominant group. This approach challenges
the assumption that natural differences should generate different spheres in life
and work or different insights in philosophy.
Example: Think of gender-based discrimination in employment settings. Until the rise
of the IT Sector, Financial Services and Broadcast-Media since the 1990s, a female
candidate was less likely to be hired for a job that requires late-night shifts and
constant traveling. Consider the implications of the decision in Anuj Garg v. NCT
Delhi (2008) which examined a provision in the Punjab Excise Act, 1916 that
prohibited women from working in establishments that sold alcohol.
⦁ A second approach, building on modal gender differences in the experience of
intimate connection, challenges the central assumption in liberal political
theory that the individual is essentially separate from, and in conflict with,
others.
Example: Can the stereotypical feminine characteristics be elevated in public life
(government, markets, civil society) so as to inculcate an 'ethics of care' as opposed to
masculine characteristics that entail cutthroat-competition? For example, how do we
view female leaders whose policies are more responsive to the needs of the vulnerable
sections of society?
⦁ A third approach, revealing the roots of political and economic domination in
the most private of sexual relations, produces feminist reconceptualizations of
liberal theory that focus on domination.
Example: Can political obligations (duties owed by citizens to their government) be
compared to the ties within a marital relationship? How do we view the 'paternalism'
exhibited in the behaviour of public officials (legislators, civil servants and judges) in
contrast to the position of a patriarch in the family? How do ideas of 'dominance' and
'submission' play out in the working of organisational hierarchies as part of different
kinds of institutions? For instance, can we readily identify 'gendered roles' in various
professions?

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Jurisprudence – An Introduction to Legal and Political Philosophy

Instructor: Sidharth Chauhan (Assistant Professor, NALSAR Hyderabad).

Session 6: Contractarian Approaches in Political Theory

How do we explain our deference to political authority in ordinary times? Do these

reasons largely have a moral character? Or should they be narrowly grounded in
practical considerations? For the sake of a structured discussion, moral reasons can be
framed as those which entail the recognition of duties owed to others. Practical
reasons are those which primarily address one's understanding of self-interest and then
address the interests of others as a secondary matter. It would be useful to restate the
justifications that are usually offered to explain the acknowledgment of political
authority in democratic systems:

Contractarian Justifications
14
1. The authority ('right to rule') of an incumbent government is based on the consent
of the people (John Locke, Second Treatise on Government, 1697), where 'popular
consent' is conflated with the supremacy of elected institutions. According to Locke,
individuals living in a benign 'state of nature' (as opposed to Thomas Hobbes who
described life in the 'state of nature' as 'nasty, brutish and short') still face numerous
inconveniences and obstructions in ensuring the collective protection of their life,
liberty and property. In short, individuals acting autonomously cannot create the
public goods needed to sustain a collective political existence and therefore need to
enter into cooperative arrangements with each other. Hence, citizens come together to
form a pre-political entity known as 'civil society' which is intended to create
conditions of peaceful coexistence. As members of such a 'civil society', citizens
collectively confer executive powers on to the government, principally through elected
institutions. The government then exercises power over citizens, but is also morally
bound to respect an overarching framework of rights and duties. In this way, John
Locke formulated the intellectual foundations of modern liberal constitutionalism.

While there have been numerous criticisms mounted against the invocation of 'popular
consent' in this form, the procedural notions of democracy tend to go back to the
same. These criticisms include the following:-
(a) Support expressed at the time of periodic elections does not imply popular consent
for all decisions made by the chosen representatives. Very simply put, voters may
change their minds or the underlying circumstances may change dramatically.
(b)Voters should ideally have the opportunity to express their displeasure or
disapproval of decisions that disregard their interests and preferences; mere passivity
cannot be conflated with popular consent. Hence, the legitimacy of public institutions
needs to be judged on a continuous basis. The existence of a free press,
institutionalized checks on executive powers and robust civil society institutions are
needed to actualize a substantive notion of democracy. Arguments for direct
democracy measures (such as referendums and voter's initiatives) are also based on
this line of thinking.
(c) Some electoral systems based on the Plurality Rule (such as First-Past-the-Post
System) create 'manufactured majorities' wherein disproportionate power is vested in
successful political formations, whereas comparable group interests are locked out of
power owing to fragmentation in their respective vote-shares. While this may be
necessary in the interest of stability, it can deepen conflicts in highly divided societies.
Hence, it is important to restate the distinction between obligations towards the
nation-state and those owed to the government in power.

2. Another criticism directed against the consent tradition in liberal political thought is
that it overemphasizes the role of electoral representation. The processes of voting,
representation and public discussions by themselves may not substantially improve the
conditions of citizens belonging to weaker and marginalized sections in highly
unequal societies. For political representation to be effective in this regard, it needs to
be closely tied to goals such as redistribution of economic resources and meaningful
changes in social attitudes. The principle of fairness (John Rawls, A Theory of Justice,
1971) ties the acknowledgment of political authority with the goal of distributive
justice. This idea was developed in order to legitimise the welfare function of modern
liberal democracies. Participation in a constitutional democracy is likened to a

15
cooperative scheme, where citizens assume duties of contributing to the success of the
same since they have benefited from the efforts and contributions made by other
participants in the said scheme. Citizens would also have a self-interest in ensuring
the success of governmental efforts that protect them during times of vulnerability and
distress. For example, consider the argument for healthy individuals to regularly
contribute to a publicly administered health insurance scheme. Another instructive
example would be that of employment conditions that require employees to set aside a
portion of their income towards pension funds.

In this sense, the duty to obey just institutions that seek to distribute benefits and
burdens in a fair manner seems to gain far more importance than periodic acts of
political participation such as voting, representation, agitation and other forms of
public discussions. In formulating the 'Difference Principle', Rawls speaks about the
duty of obedience towards policies and institutions that seek to protect the most
disadvantaged sections of society. However, there are numerous objections mounted
against this moralistic account of a welfare state.
(a) Libertarians argue that the principle of fairness places undue restrictions on the
personal liberties of citizens, principally by curtailing their choices about how to
deploy their own material resources and efforts. (Critique of State Paternalism). They
further argue that welfarist redistribution would have the effect of discouraging
individual initiatives and sometimes seek to deliver benefits that are not valued in the
first place (Robert Nozick, Anarchy, State and Utopia, 1974).
(b) Critical Social Theorists have also been quite critical of the principle of fairness.
For instance, Nancy Fraser (1994) famously argued that the emphasis on economic
redistribution was inadequate to understand the difficult questions thrown up by
groups which have faced cultural subordination and marginalisation at a structural
level (e.g. discrimination based on caste, gender, race, religion, language, sexual
orientation, persons with disabilities). For example, can affirmative action
programmes which ensure representation for historically marginalised groups in
higher education and public employment really remedy the centuries of social stigma
faced by them? Why would dominant groups assume a duty of contribution which
entails visible reductions in the resources and opportunities available to them? To
what extent can the pursuit of social justice rely on such ideals of self-affliction?

Practical Reasons for Obedience

- Empirically Grounded Reasons, namely those based on customs, common wisdom,

popular opinions and examples being followed by large groups of people. Their
invocation is often described as the 'Bandwagon Effect' or shaping behaviour where
one blindly follows the 'Herd'.

- Juristic Reasons, that is reasons derived from the opinion of experts or professionals,
namely those who possess specialist knowledge or those who have accumulated
substantial experience in the relevant subject.

- Purely Practical Considerations based on an individual's immediately available

resources and limitations. For instance, instinctive decisions are often made when
there is limited time to act on a complex problem.

16
Examples for Reflection: Do our reasons for obedience change considerably during
exceptional times? To what extent do we depart from the established justifications for
acknowledging political authority during armed conflicts, civil unrest and pandemics?
In the context of the COVID-19 situation, let us examine our responses to four sets of
decisions made by elected governments in recent times:
(I) Imposition of a Nation-Wide Lockdown under the Disaster Management Act,
2005. While it is being seen through a 'Lives v. Livelihood' prism, it also raises
serious questions for the future of Indian Federalism and Administrative Law.
(II) Late and Inadequate responses to the needs of informal sector workers in large
cities, be it through cash transfers, food provisions and transport facilities. Why have
elected governments been unable to protect the lives and interests of vulnerable
citizens?
(III) Ordinances passed by State Governments in Uttar Pradesh, Madhya Pradesh and
Rajasthan which have suspended the operation of a large number of Labour Laws for
a period of 3 years.
(IV) Insistence on the usage of the Arogya Setu App, despite concerns about its use
for surveillance and unauthorised data-mining.

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Jurisprudence – An Introduction to Legal and Political Philosophy

Instructor: Sidharth Chauhan (Assistant Professor, NALSAR Hyderabad).

Session 7: Communitarian Approaches in Political Theory

Communitarian Justifications

1. Political Conservatism emphasizes the continuity of social institutions, be it the

family, organised religion or the nation-state. In this frame, the justification for
political authority is closely linked to the way in which a political community is
imagined at the level of popular discourse. This approach often tends to emphasize the
need for uniformity, such as a common language, ethnicity, religion, culture or
history. When these commonalities do not exist empirically, efforts are made to create
such conditions through the use of political power as well as economic and cultural
organization. In the most extreme case, we may identify such an approach in countries
that tend to be theocracies (where governmental structures are dominated by religious
bodies) or have governmental structures and laws that are weighed in favour of
religious, linguistic or ethnic majorities. In this view, the very fact of being born into a
designated political community creates obligations to abide by its social norms and
rules created by formal institutional structures.

2. In contrast to the ethno-nationalist idea outlined above, several scholars have tried
to advance the understanding of 'civic nationalism' as a presumptive basis for political
authority. One of the most famous accounts comes from Ronald Dworkin (Law's
Empire, 1986) who argued that the contractarian justifications (such as the invocation
of 'tacit consent', principle of fairplay) were both inadequate or unsuited to explain
why citizens in modern nations obey the laws and directives issued by their respective
governments. He instead argued that a stronger basis for obedience lies in associative

17
ties of solidarity which need to be carefully nurtured in constitutional democracies.
The authority of the nation-state is derived from a careful mediation between the
rights of individual citizens (based on ideals of equality, liberty and fraternity) and the
entrenched practices of the groups that they belong to. This would mean that the
nation-state both recognises and regulates other forms of associative identities such as
those based on religion, language, professions, kinship and the like. At times, the State
must use its morally grounded authority to resolve conflicts of justice, such as those
that arise when the entrenched practices of groups unduly restrict the core freedoms of
citizens. Dworkin's emphasis on associative ties of solidarity between citizens can be
likened to Dr. B.R. Ambedkar's discussions on the need for developing 'constitutional
morality' in India (To be elaborated in Session 9).

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Jurisprudence – An Introduction to Legal and Political Philosophy

Instructor: Sidharth Chauhan (Assistant Professor, NALSAR Hyderabad).

Session 8: Ideas of Constitutionalism

The idea of ‘constitutionalism’ encapsulates several objectives, namely those of

structuring, enabling and limiting the exercise of governmental power. A Constitution
does not necessarily have to be in a written form. As the history of the British
Parliamentary system demonstrates, constitutionalism can also evolve through
conventions and yet provide a robust framework for curtailing the exercise of
executive, legislative and judicial power. On the other hand, the American
Constitution drafted in the late 18th century has proved to be the prototype for the rise
of written constitutions, especially after the end of the Second World War. The
intention behind that was to set out an elaborate set of constraints which would protect
the rights of individuals and minorities in the face of arbitrary actions by the State. In
the context of liberal democracies, this also translates into a ‘paradox of
precommitment’ that seeks to prohibit elected majorities in the future from whittling
away these constraints which are entrenched at a particular point of time. It must also
be remembered that formal constitutional arrangements can persist outside the
normative frame of liberal democracies. It is quite feasible for autocratic and
theocratic regimes to also have written constitutions, though there might be
considerable uncertainty about the place of these texts in structuring the actual
exercise of political authority.

At the time of its framing, the Indian Constitution was conceived of as one that fell
within the epistemic framework of political liberalism. The dominant theoretical
understanding in the postcolonial context is that constitutional texts are created in the
name of the people of the newly liberated nation. In that sense, the legitimacy of the
Indian Constitution is often linked to the Lockean idea of ‘tacit consent’ which can be
discerned from the conduct of citizens who voluntarily accept the authority of the
State in return for the protection of their individual rights. However, a preliminary
inquiry into the historical circumstances surrounding the framing process reveals that
the Constituent Assembly was itself chosen through a narrow right of franchise and
performed its task during a time of immense religious conflict and considerable
18
uncertainty about the viability of the Union of India. This creates a strong rebuttal to
the inclusion of the Indian Constitution in the consent tradition of liberal political
thought.

Other readings suggest that the Indian Constitution should be read as a complicated
set of compromises which were arrived at between distinctive communities which
continue to be divided on the grounds of religion, race, caste, region and language
among other markers. In this view, both the framing of the Constitution as well as its
endurance rests on the capacity of these communities to respect this compromise
rather than being contingent on its acceptance by individual citizens. In some
instances, protections need to be created for individuals so as to preserve their liberties
against undue interference by entrenched group practices. This contrast between
‘contractarian’ (individual-centric) and ‘communitarian’ (group-centric) explanations
for political authority presents a useful analytical tool.

We must also be attentive to the organic processes that fed into the framing of the
Indian Constitution. For instance, many leading figures of the freedom struggle were
active participants in the Constituent Assembly Debates. The opinions and positions
of several social and political formations found its way into the text that was enacted
on January 26, 1950. Granville Austin described the document as a seamless web that
pursued the principles of (i) ensuring national unity, (ii) enhancing democracy and (iii)
facilitating a social revolution. This multi-layered characterization takes us to the
proposition about rights and obligations. Think more carefully about the structure of
fundamental rights that are enumerated in Part III of the Indian Constitution (Article
12-36). The older ‘contractarian’ approach pushes us to think about these rights
primarily as a set of constraints that operate on the powers of elected governments. On
the other hand, the ‘communitarian’ approach requires us to think of these rights as
pragmatic choices made by distinctive communities in the hope that future generations
will adhere to them. Some others argue that rights are also included to give effect to
policies that will bring about meaningful socio-economic transformation. For
example, why was it important to include explicit anti-discrimination provisions
(Article 15, 16, 17 and 18) and safeguards against exploitation (Articles 23 and 24) in
Part III whereas many other countries address these issues through ordinary statutes?

We must develop a clearer understanding of what we mean by ‘fundamental rights’

and their enforcement by asking the following questions:-

Are they 'fundamental' because they codify widely held moral beliefs about the
preconditions for peaceful coexistence in a given society? Is this comparable to the
idea of 'inalienable human rights' propounded by scholars such as John Locke and
David Hume? Can we readily distinguish between the theological and secularist
foundations of the content of such rights?

Or are they framed as 'fundamental' in order to legitimize governmental actions taken

to pursue collective aspirations? In that sense, is the conception of fundamental rights
limited by utilitarian considerations? In other words, are rights deliberately structured
in such a way that public policy and law reflects the pursuit of the 'greatest good for
the greatest number of people'?

19
Alternatively, are fundamental rights described as such merely to set out a language
for self-assertion that can also be treated as normative standards for a polity? For
example, do rights reflect deeper moral commitments that stand above utilitarian
considerations and popular preferences? As Ronald Dworkin had argued, do we agree
with the formulation that 'rights trump utility'.

Do enumerated rights provide a clearer pathway for their enforcement by an

independent judiciary? After all, if a constitutional text has to be treated as a higher
source of law, then it should lay down some definitive standards that can be invoked
to test the validity of ordinary legislation and administrative decisions.

How do we locate liberal constitutionalism in H.L.A. Hart's formulation of a modern

legal system? Hart had argued that a modern legal system should have a multi-layered
structure of rules, where 'primary rules' cover the direct enforcement of legal
obligations on citizens. In comparison, 'secondary rules' set out a higher-order
framework that lays down the:
(a) Criteria for the recognition of 'primary rules' as valid within a legal system
(b) Processes that enable flexibility and change in the content of primary rules
(c) Mechanisms for adjudicating disputes about the content, interpretation and
enforcement of these primary rules

Point for Reflection: What happens when there are further disagreements about what
counts as the 'secondary rule of recognition' within a legal system? What interpretive
tools are available to us to explore such ambiguities? For example, what was the
rationale for formulating the 'Basic Structure' doctrine in Indian Constitutional Law?
Why was it important to limit parliamentary powers in some respects?

Jurisprudence – An Introduction to Legal and Political Philosophy

Instructor: Sidharth Chauhan (Assistant Professor, NALSAR Hyderabad).

Session 9: Justifications for Rights

The recognition and enforcement of fundamental rights on part of individuals or

groups is correlated with obligations placed on others, be it the State or other private
parties. The older written constitutions largely characterized fundamental rights as
those which implicate obligations on part of the State. Some of these obligations bore
a negative character thereby implying duties of restraint on part of public officials so
that they would not interfere in the exercise of rights by citizens. Others entailed a
positive character and hence implied duties of facilitation and assistance in the
exercise of rights. With the passage of time, this conceptual distinction between the
negative and positive character of rights has broken down.

Another significant conceptual shift has occurred in what constitutes ‘State Action’ in
the first place. The reach of public functions and the nature of citizen-state
interactions has changed considerably, initially with the rise of the administrative state
and consequently with economic globalization. More and more functions that were
identified as public responsibilities in a welfare state are now in the hands of private
players. Conversely, there are several activities which have historically been in private

20
hands but there are increasing demands for public accountability over them, often by
way of judicial scrutiny.
In the Indian context, the judicial discourse has captured this shift in several ways. In
the late 1970s and early 1980s the Supreme Court started expanding the category of
what constitutes an ‘agency or instrumentality of the state’ under Article 12, primarily
to protect the interests of employees in Public Sector Undertakings (PSUs). With the
passage of time, the discussion has turned to what should be the definitive criteria for
attributing a public character to an entity, since that would compel the latter to respect
and protect the enumerated fundamental rights. Should it rest on whether the entity is
substantially owned and controlled by the State (‘Structuralism’) or should the inquiry
turn on whether its functions are characterized as ‘public’ or ‘private’
(‘Functionalism’)?

It would also be beneficial to examine the most prominent remedies that are sought in
litigation related to the enforcement of fundamental rights. While Article 32 and 226
empower the Supreme Court of India and the High Courts to issue writs in order to
enforce fundamental rights, the same can be litigated through appellate processes as
well. This would be an opportune time to familiarize students with some well-
established concepts related to judicial review such as the presumption of
constitutional validity, the doctrine of eclipse, the waiver of rights, the doctrine of pith
and substance, the doctrine of severability and the principle of ‘res judicata’.

It should also be highlighted that some fundamental rights are directly applicable
against private parties. In other words, they are subject to horizontal application.
Prominent among these are rights directed against existing patterns of discrimination
and exploitation such as Article 17 (Prohibition of Untouchability), Article 18
(Abolition of Titles, except Military and Academic ones), Article 23 (Prohibition of
Forced Labour) and Article 24 (Prohibition of Child Labour). Some obligations
pertaining to affirmative action in the educational sector have also been placed on
privately funded institutions by way of Article 15(5) and Article 21-A. The ambit of
‘personal liberty’ under Article 21 has also undergone considerable expansion so as to
implicate the horizontal application of fundamental rights, especially in the context of
socio-economic rights.

Enumerated Rights

As opposed to the broader idea of liberty that serves as another legitimating ideal,
Article 19 is an example where some dimensions of personal liberty have been
explicitly mentioned. At the time of the framing, the freedoms of speech, assembly,
association, movement, residence, property (removed from Part III in 1978) and those
of seeking a livelihood were largely characterized as significant for enabling civic and
political participation. Most of them were conceptualized as protections against
arbitrary actions by the State, perhaps deeply informed by the experiences of the
framers, many of whom had faced repression during the freedom struggle. They were
also confined to ‘citizens’, which is an expression that covers individuals in its legal
sense in India and has been consciously not applied to group entities such as
corporations. However, soon after the enactment of the Constitution, the Supreme
Court read the freedom of speech broadly to protect press freedoms when some
publications were sought to be prohibited. The Government responded by amending

21
the Constitution and inserted grounds for placing reasonable restrictions on the
exercise of these freedoms. Corresponding restrictions were placed for the other
neighbouring freedoms enumerated in Article 19. Hence, the enumerated freedoms
came to be read and interpreted in close conjunction with interests that can be invoked
by the government of the day in order to curtail them.

This takes us to several questions about their interpretation. Do these enumerated

freedoms enjoy a higher pedigree than other dimensions of personal liberty which
have been progressively read into Part III? How do they relate to other provisions that
seek to ensure equality and protect liberty? What happens in the case of conflicts
between enumerated freedoms? What should be the standards of judicial scrutiny in
weighing the grounds provided by the State when it places restrictions on the exercise
of these freedoms? How should these freedoms be understood in light of social,
economic and political change? Can they be understood through a comparative lens by
looking at how similarly worded freedoms in other countries have been recognized?

Personal Liberty

Given its open-textured nature, Article 21 has emerged as the principal vehicle for
judicial recognition of liberties that are not explicitly enumerated. In its original form,
it was conceived of as a ‘due process’ clause which would entail procedural
safeguards for defendants in criminal cases. The premise being that individual
defendants will require protections against prosecutions launched by the better
resourced State. This characterization goes back to British Medieval History, where
the evolution of safeguards in criminal trials was closely linked to the previous
persecution of political dissenters and religious non-conformists. In that sense, these
protections reflect the transition from autocratic to democratic rule. Hence, this
provision acts as a reinforcement of rights such as that of seeking legal representation,
a fair opportunity to present a defence and to expect reasoned orders. Articles 20 and
22 also reflect on interface between the constitutional text and the law of criminal
procedure. Article 20 codifies well-established protections in criminal law such as the
restraint on retrospective criminalization of conduct, the right against self-
incrimination and the rule against double-jeopardy. Article 22 deals with the power of
the State to use measures such as preventive detention in the interests of security or to
maintain law and order. It also contemplates checks on this power such as time-limits
on the detention periods and review by Advisory Boards.

While the interface with criminal procedure becomes evident from a bare reading of
Article 21, its expansive reading takes us into other subject-matter. Given the
recognition of the interrelationship between Articles 14, 19 and 21 in the Maneka
Gandhi case (1978), the Indian Supreme Court has expanded the understanding of
personal liberty in several directions. In differentiating this position from the earlier
decision of A.K. Gopalan (1951), the Court has in effect transplanted the idea of
‘substantive’ due process. This implies that rather than just insisting on procedural
safeguards in proceedings that can lead to the deprivation of personal liberty, a
broader range of governmental actions can be questioned if they infringe rights that
emerge from a conjoint reading of the idea of equality (Article 14), the enumerated
freedoms (Article 19) and the open-textured protection for personal liberty (Article
21).

22
A significant articulation has been in the context of framing what are 'reasonable
expectations of privacy', primarily in response to intrusive surveillance practices. This
has paved the way for judicial borrowing from other jurisdictions on this aspect.
Another development in this direction has been the evolution of ‘constitutional torts’
wherein courts have granted civil remedies such as monetary compensation to citizens
in lieu of harm caused by the State in cases such as those of unjust detention, custodial
torture, sexual assault or negligence by government employees.

We can observe two distinctive strategies that have been used to expand the ambit of
the phrase ‘life and personal liberty', namely:-
⦁ Firstly, we can examine the articulation of respect for human dignity. This idea
has been used to argue for an expanded understanding of personal autonomy in
settings such as the right of an individual to choose death in case of a terminal
illness or the right of persons with disabilities to seek late-term abortions, to
give two examples.
⦁ The second interpretive strategy has been that of a fragmented process of
harmonization with some of the Directive Principles of State Policy (Part IV).
This has enabled deeper judicial engagement with socio-economic objectives
such as that of expanding access to healthcare, education and means of
livelihood. These interventions have also reached collective goals such as
environmental protection and remedies against corrupt practices in
governance.

However, such expansive interpretation also invites considerable criticism since it

often reflects selective pursuits of policy objectives that require administrative
expertise and large budgetary commitments. Some argue that this form of judicial
expansion upsets the ‘separation of powers’ between the three principal limbs of
government and should be characterized as unwelcome activism. Others argue that
such judicial engagement becomes a vital tool for progressive change since the
interests of disadvantaged parties with inadequate bargaining power in the political
process are more likely to be addressed by the courts. Yet another perspective is that
courts are poorly equipped to deal with socio-economic policies and risk undermining
their own legitimacy in the eyes of the litigants if their orders are not enforced.
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Jurisprudence – An Introduction to Legal and Political Philosophy

Instructor: Sidharth Chauhan (Assistant Professor, NALSAR Hyderabad).

Session 10: Equality

Equal Protection Review

‘Equality’ is held up as one of the three legitimating ideals of the enlightenment,

alongside those of ‘Liberty’ and ‘Fraternity’. The Preamble to the Indian Constitution
refers to all three of them but perhaps goes much further when it comes to Equality
since it refers to both the equality of status and that of opportunity. The text of Article
14 explicitly addresses the ideal of ensuring ‘equal protection before the law’ which is
23
semantically distinct from the expression ‘equal protection of laws’. The antecedents
of the same can be traced back to a part of the 14th Amendment of the United States
Constitution which was inserted after the Civil War in order to ensure a measure of
formal equality in voting and property rights for the previously enslaved population.
Nearly a century later, the SCOTUS (then led by Chief Justice Earl Warren) started
expanding the meaning of this provision, so much so that it served as the legal
bedrock of the civil rights movement of the 1960s.

In the Indian context, Article 14 can be read in two distinctive ways. The first level is
that of reading it as a formal standard of equality. Within its first decade, the Indian
Supreme Court had developed the test of ‘reasonable classification’ to scrutinize
governmental action that was challenged on this ground. The first step would be to
examine if there were cogent reasons offered by the government to draw up the
classifications. The validity of the classifications would then turn on whether the
criteria used for drawing the same was related to a legitimate policy objective. In most
cases, the presumption of validity led the Courts to accept the mere assertion of
reasons as sufficient to accept differential treatment between similarly situated
persons or other entities. However, by the mid-1970s, judicial decisions started to
exhibit more searching standards of scrutiny. Instead of simply looking for
discriminatory intent behind governmental actions, Courts started paying attention to
their discriminatory consequences. This marked a shift from a formal to a substantive
standard of ‘equal protection review’ which is seen as a protection against
arbitrariness in governmental action.

This newer approach directs judges to pay closer attention to whether the rights-bearer
suffers a legal injury on account of the impugned action even if the latter is backed up
with strong justifications by the State. Supporters of the ‘proportionality’ approach
advocate that judicial scrutiny should also account for how the impugned
governmental action intrudes into other recognized rights. If the stated policy
objective could be pursued through less intrusive measures, then the Courts can cite
them to invalidate more intrusive measures. Some benches have also tapped into
foreign precedents to invoke a standard of ‘stricter scrutiny’ where the intrusion into
enumerated rights is considered sufficient to invalidate or read down a statutory
provision or executive order, irrespective of the merits provided by the State.
However, there are conflicting opinions on whether such ‘tiers of scrutiny’ [namely (I)
Rational Basis Review, (II) Proportionality, (III) Strict Scrutiny] can be used in the
Indian context, especially with respect to the enumerated anti-discrimination
provisions such as those providing for affirmative action in public employment,
higher education and electoral representation.

Apart from invidious forms of discrimination in governmental action which may be

shown by the affected parties, there can also be some discriminatory classifications
that largely have a benign or protective character. In the ultimate analysis, the Courts
would have to examine how the claim of equal protection squares up against policy
objectives, especially after accounting for the interrelationship between various
fundamental rights. Special emphasis will be placed on how the Indian Supreme Court
has used the phrase ‘golden triangle’ to highlight the intersection between equality
(Art. 14), personal freedoms (Article 19) and the guarantee of due process (Article
21).

24
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Jurisprudence – An Introduction to Legal and Political Philosophy

Instructor: Sidharth Chauhan (Assistant Professor, NALSAR Hyderabad).

Session 11: Distributive Justice

Distributive Justice

The principle of fairness (John Rawls, A Theory of Justice, 1971) ties the
acknowledgment of political authority with the goal of distributive justice. This idea
was developed in order to legitimise the welfare function of modern liberal
democracies. Participation in a constitutional democracy is likened to a cooperative
scheme, where citizens assume duties of contributing to the success of the same since
they have benefited from the efforts and contributions made by other participants in
the said scheme. Citizens would also have a self-interest in ensuring the success of
governmental efforts that protect them during times of vulnerability and distress. For
example, consider the argument for healthy individuals to regularly contribute to a
publicly administered health insurance scheme. Another instructive example would be
that of employment conditions that require employees to set aside a portion of their
income towards pension funds.

In this sense, the duty to obey just institutions that seek to distribute benefits and
burdens in a fair manner seems to gain far more importance than periodic acts of
political participation such as voting, representation, agitation and other forms of
public discussions. In formulating the 'Difference Principle', Rawls speaks about the
duty of obedience towards policies and institutions that seek to protect the most
disadvantaged sections of society. However, there are numerous objections mounted
against this moralistic account of a welfare state.

(a) Libertarians argue that the principle of fairness places undue restrictions on the
personal liberties of citizens, principally by curtailing their choices about how to
deploy their own material resources and efforts. (Critique of State Paternalism). They
further argue that welfarist redistribution would have the effect of discouraging
individual initiatives and sometimes seek to deliver benefits that are not valued in the
first place (Robert Nozick, Anarchy, State and Utopia, 1974).

(b) Critical Social Theorists have also been quite critical of the principle of fairness.
For instance, Nancy Fraser (Social Justice in the Age of Identity Politics, 1994)
famously argued that the emphasis on economic redistribution was inadequate to
understand the difficult questions thrown up by groups which have faced cultural
subordination and marginalisation at a structural level (e.g. discrimination based on
caste, gender, race, religion, language, sexual orientation, persons with disabilities).
For example, can affirmative action programmes which ensure representation for
historically marginalised groups in higher education and public employment really
remedy the centuries of social stigma faced by them? Why would dominant groups
assume a duty of contribution which entails visible reductions in the resources and

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opportunities available to them? To what extent can the pursuit of social justice rely
on such ideals of self-affliction?

Since the 1970s, other scholars have built upon the ideas of John Rawls. Prominent
among them are Amartya Sen who is known for framing the 'Capabilities Approach'
(See: Development as Freedom, 1998; The Idea of Justice, 2011). This entails that
instead of pursuing a subjective standard of economic welfare, the state must aim to
create and distribute public goods which enable people from impoverished and
marginalized backgrounds to enhance their own possibilities of upward socio-
economic mobility. For example, instead of narrowly focusing on improving
educational access through affirmative action schemes and targetted scholarships, the
State must actively invest in creating and expanding the necessary infrastructure for
delivering education to communities that have been historically denied access to
formal education. Likewise, reforms in public health should concentrate on building
capacities for primary healthcare at the grassroots level instead of concentrating on
attracting private investment in high-end hospitals (providing secondary and tertiary
care) that largely cater to the richest segments in society.

Another important conceptual formulation has come from Michael Walzer, who
coined the phrase 'complex equality' (Spheres of Justice, 1983). In essence, he argued
that the Liberal Democratic State can justify policies that seek to prevent or restrict the
transfer of inequality from one sphere of human life to another. For example, if the
concentration of wealth in the hands of a few corporations enable their
promoters/owners to exercise undue influence over news-media coverage and
electoral preferences, laws can be made to tackle these problems. Likewise,
inequalities based on social markers of discrimination (such as those based on race,
caste, gender, religion) should be filtered out in the criminal justice system, namely
that these biases should be acknowledged and actively counteracted upon during the
process of investigation and trial.

Points for reflection: How do we locate ideas of economic liberalism in Indian

politics? Can we clearly identify groups and formations that support welfarist
redistribution policies as opposed to others who are closer to the Neo-Liberal position
which favours minimal state intervention in economic affairs?

Examples for discussion:

-What is the ideological/philosophical basis for progressive taxation?
-Why should the State legislate on the issue of minimum wages for workers?
-Why should the State have the power to acquire land from private parties?
-Should we implement measures such as a 'Universal Basic Income'?

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Jurisprudence – An Introduction to Legal and Political Philosophy

Instructor: Sidharth Chauhan (Assistant Professor, NALSAR Hyderabad).

Session 12: Historical Justice

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Arguments about distributive justice emphasize the duties of a liberal democratic state
to actively engage in the pursuit of welfare functions. Very often, this idea of welfare
is grounded in the present needs of society, namely by invoking the interests of the
most disadvantaged sections of the population. However, the forward-looking
emphasis on the redistribution of tangible economic resources and opportunities often
masks the older causes of the existence of inequality and discrimination in the first
place. Hence, the very theorisation of distributive justice needs to be grounded in the
unique history of the country/legal system where such welfarist functions are being
performed.

Many scholars have argued that constitutional democracies can flourish only if the
citizens acknowledge a collective moral responsibility to address wrongs committed
in the past. In this view, it is justified to frame laws and policies which explicitly try to
provide redressal to those who were affected by such wrongful behaviour. However,
we must ask whether it is actually possible to compensate those communities who
have suffered on account of these wrongs over several generations? Here, the
emphasis in not on specific violations of civil rights or individual instances of
atrocities, but on structural causes of discriminatory or exploitative behavior that took
place in the past. Such questions gain prominence when societies witness decisive
changes in their political, economic or social arrangements. For example, countries
that underwent long-periods of foreign domination in the form of colonialism have
seen demands for reparations and apologies from the older colonial powers. (Think
about Shashi Tharoor's speech at the Oxford Union, 2015). In other contexts, remedies
are sought against systemic forms of racism, such as the recent protests following the
custodial death of George Floyd that are calling for police reforms and accountability
in the USA. One can also think about the origins of the field of International Criminal
Law in the Trials for War Crimes at the Tribunals in Nuremberg and Tokyo. Yet
another example would be statements of apology made by political leaders in
recognition of the exploitation of minority groups (France) and indigenuous
communities (Canada).

The Indian Constitution also tries to grapple with questions of historical justice, albeit
in a limited form. To some extent the constitutional goal of bringing about social
reform addresses the history of caste-based discrimination in our society. As discussed
earlier, Dr. B.R. Ambedkar's own writings in support of anti-caste movements played
a role in the drafting of anti-discrimination provisions such as Article 15(2), Article
17, Article 23 and Article 25(2)(b). However, public debates tends to be centered on
the provisions that provide for reservations in the domains of education [principally
Article 15(4), but one can now cite Articles 15(5), 15(6) and 21-A], public
employment [Article 16(4)], Union Parliament (Article 330), State Legislatures
(Article 332) and Local Elected Bodies (Articles 243D and 243T). While reservation
policies are often defended as measures of distributive justice which aim to secure a
minimum threshold of representation in public life for marginalised groups, they also
need to be grounded in ideas of historical justice. This account provides a better
response to the oft-quoted objections raised against compensatory discrimination,
namely that (i) excessive reservations lead to a problem of 'reverse' discrimination',
(ii) why should the present generation of individuals belonging to dominant
communities be held responsible for the faults of their ancestors and be compelled to
give up claims to valuable resources and opportunities, and that (ii) 'compensation for

27
past wrongs' is an illusory goal. We must think about the credibility of these
objections and the responses to them.

Jurisprudence – An Introduction to Legal and Political Philosophy

Instructor: Sidharth Chauhan (Assistant Professor, NALSAR Hyderabad).

Session 13: Religious Freedom

Think about the language of Articles 25 and 26 in the Indian Constitution, which are
the principal provisions dealing with the ‘freedom of religion’. Articles 27 and 28 are
also connected to the same, but they are not litigated as much on account of their
relatively precise language. It will be useful to begin with an overview of how the
debate on secularism has evolved in post-Independence India. The Constituent
Assembly Debates were closer to the idea of ‘equal respect’ secularism which implies
that the State should allow different religions to flourish in public life and not
discriminate between them, either by endorsing one religion or by stigmatizing
another. This idea is distinct from the strand of ‘No concern’ secularism that is
identified with some Western democracies where the State is expected to actively
disentangle religious practices from public life.

A useful analytical category in this regard is one given by Gary Jeffrey Jacobsohn
(The Wheel of Law, 2003) who speaks of ‘accommodative’, ‘ameliorative’ and
‘assimilative’ approaches to secularism in a comparative study of how the concept has
played out in India, the United States and Israel respectively. Rajeev Bhargava (The
Distinctiveness of Indian Secularism, 2006) has argued that Indian Secularism should
be conceptualised very differently from Western nations. The main premise is that the
South Asian subcontinent has a much longer history of accommodating religious
diversity in political, economic and social structures when compared to the Western
nations that were earlier constituted around homogeneous identities (based on
religion, language or ethnicity) are now grappling with the implications of
multiculturalism owing to economic globalisation and immigration.

Given the electoral consolidation of Hindu nationalism since the 1990s, social and
political commentators have laid stress on the ideal of religious tolerance as one of the
essential attributes of liberal constitutionalism. Others argue that the public expression
of religious beliefs should not be encumbered by the State, since their suppression
would weaken the legitimacy to govern a multi-religious country like India. It must be
kept in mind that some religious practices can come into conflict with other rights
enumerated in Part III. The early thrust of the Indian Supreme Court was to
subordinate the 'freedom of religion' to other constitutional provisions such as those
directed against discrimination. This is evident from decisions that upheld statutes
which created remedies against customary restrictions on access to places of worship.
The Court also scrutinized financial decisions made by religious trusts and
endowments by articulating a distinction between the ‘essential’ and ‘secular’
practices of a religious group. As per this standard, judicial interventions were
legitimized in so far as they dealt with practices pertaining to financial matters such as
the distribution of offerings collected from worshippers and the management of
property owned by religious groups. On the other hand, functions such as the

28
performance of long-practiced ceremonies and the preservation of the premises were
deemed to be ‘essential’ and hence left outside the purview of judicial scrutiny.

Over time, the ‘essential-secular’ diad has proved to be counterproductive in several

matters dealing with governmental restrictions on religious practices. In particular, it
has proved to be a conceptual obstacle in dealing with persistent controversies such as
those arising from restrictions on cow-slaughter and State-level laws that criminalize
the act of religious conversion. There have also been intense debates surrounding
situations where religious practices are seen as antithetical to the maintenance of
public order. Another significant question that can be examined at this stage is
whether there should be judicial scrutiny over personal laws of religious minorities?
While older decisions had exempted personal laws from such scrutiny through their
interpretation of Article 13, the question has been debated intensely in recent times,
especially in the context of some marriage practices which are recognised in Muslim
Personal Law such as ‘Triple Talaq’ and ‘Polygamy’.

We should also think about Articles 29 and 30 which protect the rights of religious
and linguistic minorities to preserve their language and culture and concomitantly to
establish and administer educational and charitable institutions respectively. At the
time of the framing of the Indian Constitution, the language of these rights was
substantially borrowed from comparative sources. The protection of the educational
and cultural rights of minorities was given utmost significance in the discourse of
International Human Rights Law, a field which was emerging at the time as a
response to the majoritarian atrocities witnessed during the Second World War. In that
sense, these rights speak both to the ‘freedom of religion’ as well as the larger ideal of
promoting equality and non-discrimination in the polity. However, the judicial
interpretation in India has changed the contours of the debate. Especially in the
context of Article 30, the central question has been whether this provision is merely
meant to protect the identity-conferring practices (such as language and religious
belief) or should it extend to generic activities such as the pursuit of higher education
in professional fields? One position in this regard is that educational institutions run
by religious and linguistic minorities should be given considerable autonomy from
governmental regulation so that they can provide effective access to education for
their own members who might otherwise struggle to acquire the same in institutions
dominated by the majority religious or linguistic groups. A contrary position is that
differential treatment accorded to minority-run educational institutions would also
make it harder for the government to regulate their quality, apart from obstructing the
implementation of affirmative action provisions in the education sector such as those
enumerated in Articles 15(4), 15(5) and 21-A. In this context, the role of the National
Commission for Minority Educational Institutions (NCMEI) has become important as
an oversight body.

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