There’s No Such Thing as Free Speech, and it’s a Good Thing, Too by Stanley Fish — A Summary

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Stanley Fish, “There’s No Such Thing as Free Speech, and it’s a Good Thing, Too”, in There’s No Such Thing as Free Speech, and it’s a Good Thing, Too (New York: Oxford University Press, 1994): 102–119.

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The following main thesis will be advanced is this essay: Free speech is an abstract concept that does not have any “natural” content but is filled with whatever content and direction one can manage to put into them. It is not an independent value but a political prize.

But consider another related thesis first: “All affirmations of freedom of expression dependent for their force on an exception that literally carves out the space in which expression can then emerge.”

The importance of the exception must be noted. In order for you to be able to assert that some things must be expressed freely, there has to be some things that cannot be expressed freely. That’s to say there must be exceptions to the rule that there be free speech. This means that restriction of speech is constitutive of expression and that without it, i.e. restriction, there would be nothing to say or no reason for saying whatever it is that we say. Put different it is precisely because we are for this that we are against that. Or, if you are not against something, how can you be for anything? It is in reference to what we are for that we will find speech that articulate what we are against intolerable.

“Speech, in short, is never a value in and of itself but is always produced within the precincts of some assumed conception of the good to which it must yield in the event of conflict.” And when it happens that an institution — church, state, or university — is faced with behaviour or speech that undermines what it is for, it will be forced to declare that cannot allow that behaviour. It will be realised then that there was never a general freedom to exercise free speech but only a freedom that had been understood against a background of what this freedom excluded, i.e. this new behaviour or speech that undermines its values, what it’s for. And this leads us back to the main thesis, that free speech has no natural content on its own and that it means, or contains, what we want it to mean, or contain.

Consider this case from Canada. In R. v Keegstra, a high school teacher who had, as the evidence established, “systematically denigrated Jews and Judaism in his classes” was indicted under Section 319(2) of the Criminal Code which which criminalises willful promotion of hatred against any identifiable group “by communicating statements other than in private conversation”.

Of course, Section 2(b) of the Canadian Charter guarantees “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”. But this freedom is subject to, Section 1 qualifies, “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”.

The majority finds Section 319(2) of the Criminal Code to violate Section 2(b) of the Charter but accepts the indictment for principles that are proclaimed in Section 1. This is very close to what was asserted: that free speech is never really general (or free) but is constituted by exceptions, in this case, those that violate “the limits prescribed by law”.

Things are a little different in the USA. The First Amendment is apparently absolute. However, there are many ways of getting around it. Consider the distinction between speech and action. It is asserted that if the First Amendment is to make sense, speech cannot be a species of action. If speech is understood as action, the First Amendment would read, “Congress shall make no law … abridging the freedom of action” and it is clear that such a law would abolish all action, and therefore all law, so that what we would have left would be unregulated and uninhibited action. Therefore, either speech is not action or failing that, speech is a special form of action that lacks that aspect of action which might cause it to be the object of regulation, i.e. consequences. The latter is favoured.

The problem with this formulation of speech as a special form of action that does not have consequences is the obvious fact that speech does have consequences. “Speech always seems to be crossing the line into action, where it becomes, at least potentially, consequential.” To save the distinction, a further distinction is proposed: “some forms of speech are not really speech because their purpose is to incite violence or because they are, as the court declares in Chaplinsky v. New Hampshire, ‘fighting words,’ words ‘likely to provoke the average person to retaliation, and thereby cause a breach of the peace.’”

The problem with this further distinction is that it distinguishes not so much between provocative/fighting words and harmless words but between words that might provoke some persons and words that might provoke other persons. This follows from the obvious fact that it is not the words themselves that are provocative, but some group that is provoked by some words. And if one thinks what words are likely to provoke some group or the other, “the answer is anything and everything”.

As Justice Holmes said long ago (in Gitlow v. New York), every idea is an incitement to somebody, and since ideas come packaged in sentences, in words, every sentence is potentially, in some situation that might occur tomorrow, a fighting word and therefore a candidate for regulation.

Given this insight, we can conclude that the idea of fighting/provocative words is useless either because clever and unscrupulous advocates would find all sorts of exceptions, i.e. speech that are provocative to some group or other, so that there is nothing left to protect, or because the difficulty of specifying provocative words is just an instance of the difficulty of separating speech from action with the result that there was nothing to protect in the first place. If the latter is true, we could say that if the point of the First Amendment is to identify speech that is separable from conduct and the consequences that flow from that conduct, there is no such speech for the First Amendment to protect. To make the point form the opposite side, “when a court invalidates legislation because it infringes on protected speech, it is not because the speech in question is without consequences but because the consequences have been discounted in relation to a good that is judged to outweigh them”.

Despite what they say, courts are never in the business of protecting speech per se, “mere” speech (a nonexistent animal); rather, they are in the business of classifying speech (as protected or regulatable) in relation to a value — the health of the republic, the vigor of the economy, the maintenance of the status quo, the undoing of the status quo — that is the true, if unacknowledged, object of their protection.

Can’t we declare up front that total freedom of speech is our primary value and trumps anything else, no matter what? We could but only if what we said didn’t matter and if nobody cared what we said. But we speak in order to “move the world in one direction rather than another”. We speak because we care about what we speak. Not simply because we care about speaking. “It may seem paradoxical, but free expression could only be a primary value if what you are valuing is the right to make noise; but if you are engaged in some purposive activity in the course of which speech happens to be produced, sooner or later you will come to a point when you decide that some forms . of speech do not further but endanger that purpose.”

Consider universities. Is it their purpose to encourage free expression? If yes, they require nothing but “a soapbox or an open telephone line”. But the fact that universities are so much more than soapboxes — consider the events, rituals, and procedures that fill its calendar, the fact that they have departments, or disciplines, or libraries — point to the fact that they have a more substantive purpose. In relation to that purpose, “the flourishing of free expression will in almost all circumstances be an obvious good; but in some circumstances, freedom of expression may pose a threat to that purpose, and at that point it may be necessary to discipline or regulate speech”.

The objection could be raised that codes regulating free speech in universities are misguided, if well intentioned, efforts to give values of community and harmony a higher place than freedom and that if the goals of harmony collide with freedom of expression, the latter “must be the paramount obligation of an academic community”.

[Comment: This was an objection raised by Benno Schmidt in a Wall Street Journal piece titled “Universities Must Defend Free Speech” in May 1991. The WSJ republised an excerpt in 2015 but the page is behind a paywall. I was able to find this quotation in a blog reporting the WSJ’s re-publication.]

What this objection inadvertently admits is what has been said all along: that speech occurs in communities (or in given contexts) and in any community, in this instance the “academic community”, “limitations on speech in relation to a defining and deeply assumed purpose are inseparable from community membership”. Of course, this is something that the objector wants to deny. But, independent of a community context, expression would be at once inconceivable and unintelligible.

Rather than being a value that is threatened by limitations and constraints, expression, in any form worth worrying about, is a product of limitations and constraints, of the already-in-place presuppositions that give assertions their very particular point. Indeed, the very act of thinking of something to say (whether or not it is subsequently regulated) is already constrained — rendered impure, and because impure, communicable — by the background context within. which the thought takes its shape.

Perhaps it will be asked whether the view being offered here does not focus too much on short-run outcomes and fail to understand that the good effects of speech will be realized in the long run — true self-fulfillment, a more perfect polity, a more capable citizenry, a less partial truth, etc. Certainly, this weakens one of the main points of the argument being offered: that speech in and of itself cannot be a value. It could be said that by equating the goal of free speech with some locally espoused value, the argument fails to see the larger or better future goal which is as of now an inchoate shape but which will be “given firm lines only by time’s pencil”.

This seems appealing except that it imposes a requirement so severe that one would expect more justification for it than is usually provided. “The requirement is that we endure whatever pain racist and hate speech inflicts for the sake of a future whose emergence we can only take on faith.” This seems like just another strategy to delegitimise the victims of free speech; to say that we must suffer harm in the name of something that cannot be named.

However, this strategy has worked. Using the parlance of a marketplace of ideas, many have bought this invocation of something that cannot be named to justify current harms. The reason for this is that they realise that the alternative is politics, which means that decisions about what is free and what is not will not be a matter of principle but that they will become a matter of the ability of some persons to interpret, recharacterize, or rewrite principle in ways that lead to the protection of speech they want heard and the regulation of speech they want silenced.

When the First Amendment is successfully invoked, the result is not a victory for free speech in the face of a challenge from politics but a political victory won by the party that has managed to wrap its agenda in the mantle of free speech.

From this flows the conclusion that politics infects the First Amendment. This is horrifying to many but it must be realised that there have never been “any normative guidance for marking off protected from unprotected speech”. The distinction between speech and action has always been effaced in principle. And in practice, it has always taken the form that existing political situations mandate. In short, there has only been politics.

This, it will be recognised, is not an argument for or against the regulation of free speech as a matter of general principle. Rather, the argument is that there is no general principle based on which to regulate free speech. Regulation will always have to be local and neither any general abstract principle of free speech.

Free-speech principles don't exist except as a component in a bad argument in which such principles are invoked to mask motives that would not withstand close scrutiny.

Consider the publication of an ad that cast doubt on the historicity of the Holocaust: an ad looking like as a scholarly work filled with “learned” references, undocumented statistics, and an array of so-called authorities.

[Comment: This was an ad made by a certain Bradley R. Smith in the Duke University student newspaper Chronicle. I have been unable to locate that ad. But see this New York Times report on that ad.]

The justification for publishing that ad, provided by one of the editors, was an appeal to the First Amendment “right” of advertisers to be published, i.e. an appeal to free speech. This is simply mistaken for refusal by one publication is not an infringement of that right provided there are other avenues available. Still, an argument could perhaps be made for its publication: we could say that printing the ad would foster healthy debate. But this is what the editor declaimed choosing instead to take a “principled” free-speech stand.

The distressing part is not so much that the ad was published but that it was published by people who knew well that its claims were untruthful but published it anyway by appealing to a principle of free speech. Perhaps the editors thought “although we ourselves are certain that the Holocaust was a fact, facts are notoriously interpretable and disputable; therefore nothing is ever really settled, and we have no right to reject something just because we regard it as pemicious and false.”

However, the fact that “facts” are never really settled does not mean that we cannot affirm and rely on truths that according to our present lights seem indisputable. It simply means that we must act on the basis of the certainty we have so far achieved.

Truth may ... always be in the course of emerging, and we must always be on guard against being so beguiled by its present shape that we ignore contrary evidence; but, by the same token, when it happens that the present shape of truth is compelling, beyond a reasonable doubt, it is our moral obligation to act on it and not defer action in the name of an interpretative future that may never arrive.

None of this is to pass a judgment on the First Amendment that it is bad or useless. But only that it is nothing. That’s to say, in so far as we use the contents of the First Amendment as reference points for regulating free speech, those contents are always political and not, as people imagine them to be, politics-free. If we see the First Amendment as politics-free, then it has no content. Again, this need not lead to the conclusion that the First Amendment be abandoned. At a minimum, by imposing a lot of argumentative work before a speech regulation will be allowed to stand, it slows down outcomes that might be dangerous.

Of course, what sort of argumentation can be done and will win out will not be neutral. The substantive contents of the First Amendment will be favourable to some outcomes and unfavourable to others, so that the contents that it has at the present moment will favor some interests more than others. The counsel that results is this: “so long as so-called free-speech principles have been fashioned by your enemy, … contest their relevance to the issue at hand; but if you manage to refashion them in line with your purposes, urge them with a vengeance.

All of these leads to the conclusion that there is no such thing as free speech. This shouldn’t be surprising to anyone or thought to be dangerous. It states merely that everything somebody says is tied to a context, a world of conduct, and that identifying certain speech as tied to that context will indicate the existence of politics, and not its absence. The bad news is that jurisprudence concerning the First Amendment can never be non-political; the state will always interfere. The good news is that because speech is never free, it will always matter.

[B]ecause everything we say impinges on the world in ways indistinguishable from the effects of physical action, we must take responsibility for our verbal performances — all of them — and not assume that they are being taken care of by a clause in the Constitution. Of course, with responsibility comes risks, but they have always been our risks, and no doctrine of free speech has ever insulated us from them.

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On the Different Senses of ‘Freedom’ by Thomas Hill Green — A Summary

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Thomas Hill Green, “On the Different Senses of ‘Freedom’ as Applied to Will and the Progress of Man,” in Works of Thomas Hill Green, ed. R. L. Nettleship, vol. II (London: Longmans, Green, and Co., 1906), 308–333.
[Google Drive Link]

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I assume you are aware of the debate on freedom (or liberty). If not, this essay will be very difficult, essentially useless. At the very least, check out the first two sections of this lecture transcript of Quentin Skinner’s “A Genealogy of Liberty”, i.e. the sections, The Liberal Concept and The Hegelian Concept. Green’s ideas on freedom is located, along with those of Plato, Kant, Hegel, the Stoics, etc. within what has been rendered, in that transcript, as the Hegelian Concept, and what Isaiah Berlin has popularised as the positive concept of liberty. In arguing for positive liberty, Green is positioning himself against the what Skinner explicitly calls the Liberal Concept, what Berlin calls negative liberty. This liberal tradition is given classical expression by Thomas Hobbes and John Locke (Green cites Locke but not Hobbes) and taken up further by Bentham and Mill and is alive, as Skinner points out, to this day. [Skinner by the way is arguing for a third concept of freedom, which he calls the Neo-Roman concept and which is popularly known as republican freedom.] In addition to familiarity with this debate, some general familiarity with the ideas of Plato, Kant and Hegel along with Stoic and Christian ethics is recommended as Green engages with them.  

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“[One] way of imposing an undue strain [on the reader],” Brand Blanshard writes in On Philosophical Style (1954: 53) “is to arrange the stepping-stones in groups so that one must skip about at awkward angles in one group before going on to the next.” The example that Blanshard chooses to illustrate this type of difficulty frequently seen in philosophical writing is a 112-word Green sentence which makes a rather pedestrian point that could be made using a lot fewer words. The point is that Green can be frustrating to read. The style (and the vocabulary) will be familiar to anyone who has read any translation of Hegel. Be ready for the challenge.

Also please read the subsection The Theory of the Will in the entry on him at the Stanford Encyclopedia of Philosophy and get the meanings of and the connections between “willing”, “freedom”, “objects” and “self-satisfaction”. Green’s idea of the will must be grasped in order to make sense of this essay. 

Very briefly, I might illustrate them thus. When I make a choice to do or be something from amongst many other options, that activity of choosing might be called “willing”. “By ‘will’,” Green writes, “we mean the effort of a self-conscious subject to satisfy itself.” Whatever it is that I choose to do or be is the “object” of that willing. And of course, it is always me or my mind doing this “willing”. Hence, in this sense, “willing” is always free. (Take note to distinguish this notion of being free, which is a necessary state of the mind/soul, from that familiar, negative, notion of freedom having to do with societal or political relations, which is that of not being interfered with or frustrated by other persons or the state in doing the things that one wants to do.) But my “willing” could also be such that its “objects” frustrate my nature (my reason, the will of God, the law of man’s being, etc. however we define it.) And if my willing is such that it frustrates these, then it will not lead to “self-satisfaction” or “self-realisation”. To the extent that I am so frustrated, I am, for Green, unfree.

We can finally proceed with the summary.

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1. “Since in all willing a man is his own object, the will is always free.” That’s to say, everything that one wills is ultimately directed towards himself whether the will is connected to the objects of desire [what he wants to have/do] or being [what he wants to be]. The nature of these objects differ and because the nature of these objects differ, the nature of freedom also differs. These objects might either frustrate self-satisfaction or they might contribute to its realisation. In the former, the act of seeking the object is always free in one sense because it is afterall the agent who wills the object. But if the object frustrates his self-satisfaction, if it does not conform to “the law of his being”, the agent is unfree in another sense. “His will to arrive at self-satisfaction not being adjusted to the law which determines where this self-satisfaction is to be found, he may be considered in the condition of a bondsman who is carrying out the will of another, not his own.”

From this bondage he emerges into real freedom ...by making its [the law of his being] fulfilment the object of his will; by seeking the satisfaction of himself in objects in which he believes it should be found, and seeking it in them because he believes it should be found in them. For the objects so sought ... have the common characteristic that, because they are sought in such a spirit, in them self-satisfaction is to be found; not the satisfaction of this or that desire, or of each particular desire, but that satisfaction, otherwise called peace or blessedness [or freedom], which consists in the whole man having found his object.

To break free from this bondage, the agent would have to, adapting Green, seek satisfaction of himself in objects in which he believes his self-satisfaction should be found. And the agent should seek satisfaction in those objects because he believes his self-satisfaction should be found in those objects. That’s to say, the agent must be aware of what his nature or the law of his being demands and seek those things (or objects) which will lead him to realise that law (or ‘contribute to the realisation of self-satisfaction’). It is only in this latter case that the agent may be necessarily and properly said to be free.

2. The original use of the term freedom denotes a metaphor that expresses a social and political relation between persons. (For the classic statement of this original, or liberal, or negative view of freedom for which Green uses the adjectives “juristic”, “outward” and “primary”, see Thomas Hobbes, “Of the Liberty of Subjects”.) This original use implies some exemption from compulsion by others. Even in this use, the meaning of freedom is altogether uncertain. The extent and conditions of non-coercion or non-interference — “exemption from compulsion” — that might connote freedom will be different in different societies.

When the term freedom comes to be applied to the relation that men have with their, say, inner life of self-consciousness, as opposed to other members of the society, its meaning fluctuates even more. We might, like Plato, establish, for instance, a relation between man and his impulses which frustrate the attainment of his true good and assert that man is free when he is a master of these impulses and unfree when the impulses are master of him. But such impulses are as unlimited as they are varied. To use the metaphor then is quite arbitrary. It might lead one to say only freedom is to be found in a life of absolute detachment from all interests. And indeed this is what happened with the Stoics and to the Christians.

With St. Paul, the relation established is between man and the (divine) law. “With him ‘freedom’ is specially freedom from the law, from ordinances, from the fear which these inspire.” Law as an external command binds man in a double sense by (a) making him obey for fear of punishment, and (b) in forcing him to obey, by obstructing the enjoyment of his desires which might frustrate the law. In a word, law renders man unfree by forcing him to do what he wouldn’t, and forbidding what he would. 

[Here’s a classic example of Green’s long-windedness. He expresses the sense conveyed by the last line of the previous paragraph with the following sentence:

Presenting to man a command which yet it does not give him power to obey, it destroys the freedom of the life in which he does what he likes without recognising any reason why he should not (the state of which St. Paul says ‘I was alive without the law once’); it thus puts him in bondage to fear, and at the same time, exciting a wish for obedience to itself which other desires (φρόνημα σαρκὸς {phronema sarkos, from Romans 8:6}) prevent from being accomplished, it makes the man feel the bondage of the flesh.]

From this bondage of the law, man is freed, according to St. Paul, when the spirit expressed by the (divine) law the principle upon which man acts. He comes to identify himself and his acts with the law. He obeys the law willingly. In this movement, man stops being a subject/a servant and becomes a son. “He is conscious of union with God, whose will as an external law he before sought in vain to obey, but whose ‘righteousness is fulfilled’ in him now that he ‘walks after the spirit.’”

3. Of course, this is similar to Kant’s idea of freedom in that the statement “He is free because he conscious of himself as the author of the law which he obeys” can equally apply to both. The difference however is that for Kant, as for Plato and the Stoics, the bondage is not to a divinely ordained law but to impulses of pleasure that inhere in man as a merely natural being. Freedom, or autonomy of the will, for Kant is consciousness of what should be which leads to imperatives for action that are determined/authored by reason. Such consciousness is rare and what we are looking for usually, and what Green thinks Kant’s views amount to, is to “be[] conscious of the possibility of such determination (emphasis added).”

4. Hegel’s quarrel with Kant was of course that the latter’s idea of freedom was essentially unrealisable. Hegel makes freedom more concrete and identifies it with and in the state. Because for him, the state is the perfect expression of reason, the self-determining (or autonomous, to use Kant’s term) principle operating in man. This is a way of thinking about freedom and about the state which is not familiar to Englishmen (Hobbes and Locke, two of the most important philosophers writing in the English language and who propounded the opposite, i.e. negative view of freedom). But it would be familiar to the ancient Greek philosophers (like Plato and Aristotle) who thought of the polis as a society governed by laws and institutions and established customs which secure the common good of the members of the society — enable the citizens to make the best of themselves — and are recognised as doing so. It is in such a state — the modern state, more precisely Prussia, for Hegel and the city-states for the Greek philosophers — that freedom is realised.

5. There is some truth to this view. Both the Greek polis and the modern state contribute to the freedom understood as autonomy of the will in so far as they “actualise in [men] the possibility of [determining] objects conceived as desirable in distinction from objects momentarily desired” so that “man seeks to satisfy himself, not as one who feels this or that desire, but as one who conceives, whose nature demands, a permanent good.”

6. But of course, it is difficult to speak of freedom except in the case of individuals. This talk of freedom as realised in the Greek polis would be unintelligible to the Greek slave who is forced to gratify his master’s lust. Nor would Hegel’s idea of freedom as realised in the modern state be intelligible to “an untaught and under-fed denizen of a London yard with gin-shops on the right hand and on the left.” 

What Hegel says of the state in this respect seems as hard to square with facts as what St. Paul says of the Christian whom the manifestation of Christ has transferred from bondage into ‘the glorious liberty of the sons of God.’ In both cases the difference between the ideal and the actual seems to be ignored, and tendencies seem to be spoken of as if they were accomplished facts.

7. In the discussion thus far, freedom has been understood positively. It has meant “a particular kind of self-determination; the state of the man who lives indeed for himself, but for the fulfilment of himself as a ‘giver of law universal’ (Kant); who lives for himself, but only according to the true idea of himself, according to the law of his being, ‘according to nature’ (the Stoics) ; who is so taken up into God, to whom God so gives the spirit, that there is no constraint in his obedience to the divine will (St. Paul) ; whose interests, as a loyal citizen, are those of a well-ordered state in which practical reason expresses itself (Hegel).”  

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Two issues may be raised against this idea of [what Isaiah Berlin calls positive] freedom. First, is this a good way of thinking about freedom, i.e. as a state of the soul, of having reconciled our wills to the law of our being, as opposed to a civil relation whereby we are not physically or otherwise interfered with by others? Second, what is this law of being that man is supposedly subject  to? 

[Comment: This paragraph is actually from the end of paragraph 1. But it makes sense to put these questions here for reasons that should be clear if you have reached this far in the summary.]

8. Perhaps, it’s not a good way of thinking of freedom given the problems and confusions (section 6) associated with such a notion of freedom. It is tempting then to confine talk of freedom to the popular sense of the power to do what one wills without being interfered with. But then, we must ask whether we can understand freedom in the popular sense (as acting without interference) without reference to freedom as autonomy of will. That’s to say, how can we understand our freedom to do what we wish to do without understanding from where the direction/preference to do what we wish to do comes from: from us ourselves? or from something else?

John Locke thinks that freedom is merely the power to do or not do a certain act of preference. And to will, for him, is simply to have a preference. As such, to ask if this will is free is to ask an absurd question, like asking whether freedom is free (see paragraph 1). But it can, for Locke, properly be asked if a man is free to will or to act. Liberty in other words has to do with the man and not with his will or act (which are necessarily free). 

So far as a man has power to think or not to think, to move or not to move, according to the preference or direction of his own mind, so far is a man free. Wherever any performance or forbearance are not equally in a man’s power; wherever doing or not doing will not equally follow upon the preference of his mind directing it, there he is not free, though perhaps the action may be voluntary.

Liberty belongs not to the will. If this be so, (as I imagine it is,) I leave it to be considered, whether it may not help to put an end to that long agitated, and, I think, unreasonable, because unintelligible question, viz. Whether man’s will be free or no? For if I mistake not ... the question itself is altogether improper; and it is as insignificant to ask whether man’s will be free, as to ask whether his sleep be swift, or his virtue square.

Volition, it is plain, is an act of the mind knowingly exerting that dominion it takes itself to have over any part of the man, by employing it in, or withholding it from, any particular action. And what is the will, but the faculty to do this?

It is plain then that the will is nothing but one power or ability, and freedom another power or ability so that, to ask, whether the will has freedom, is to ask whether one power has another power, one ability another ability; a question at first sight too grossly absurd to make a dispute, or need an answer.

Liberty belongs not to the will but to the agent, or man. To return, then, to the inquiry about liberty, I think the question is not proper, whether the will be free, but whether a man be free.

John Locke, An Essay Concerning Human Understanding, 1690, Book II, Chapter 21, paragraphs 8, 14, 15, 16, (20,21).

9.  It is alright to ask if a man is free to act. But if we cannot ask if a man’s will is free, can we properly ask if he is free to will? It is difficult to see how anyone would be free or unfree to will because the will is not something that can be acted on like your body might be acted on. If it is indeed acted on, it is no longer your will or preference but the will or preference of whatever is acting on it, whether it be another person. So that the question whether one is free to will is as absurd as the question that asks whether ones will is free.

10. Perhaps this is a mere quibble with words. For the meaning of “power” when we say that a man is has power over his will, i.e. when he is free to will, is different from when we say a man has power over his actions, i.e. when he is free to act. But it has to be accepted that asking the question in the form asked (Is a man free to will as well as to act?) has deeply muddled our thinking about free-will. It has led us to think that the man doing the willing is somehow separate from or subject to the motive or object of the will, in the same way that a natural event might be subject to (or caused by) another. This has led to the further thought that the will, if man is not to be subject to arbitrary or immoral motives/objects, must also be separate from or independent of the objects/motives.  However, such distinctions are meaningless. “[A man’s] will is himself. His character necessarily shows itself in his will.” For Locke and others, there is some uncertainty when we ask whether a man has power over determinations of his will, i.e. whether he will act or forbear when given a choice; and if he chooses to act, which one he will choose.

11.  But there is no such uncertainty. If we answer that the man has no power, then according to the common scheme, i.e. the negative view, it would presumably be because that action has been determined by his strongest motive(s) and not by his will. We are forced to conclude that the will is determined like any natural phrenomenon: by causes external to it (here, motives).

[But such motives, in the only sense intelligible, are determined by himself. These motives are objects of his own making.]

12. This unsavoury conclusion can be avoided if we say that the man indeed has power over the determinations of his will. But saying this would mean that his will is determined by something else, that “behind and beyond the will as determined by some motive there is a will, itself undetermined by any motive, that determines what the determining motive shall be. …But an unmotived will is a will without an object, which is nothing (emphasis added).”

If those moral interests, which are undoubtedly involved in the recognition of the distinction between man and any natural phenomenon, are to be made dependent on belief in such a power or abstract possibility, the case is hopeless.

13. The only way to get out of this trouble is to realise that the question whether a man is free to will is a question that cannot be answered because the question presupposes that there is some agency beyond the will which determines it such that man could be free or unfree to will. No such agency exists. The will is the self-conscious man. The self-conscious man is determined by objects which are already, and necessarily so, in his consciousness — otherwise they would not be his objects.

To say that [man’s objects] have power over him or his will, and that he or his will has power over them, is ... misleading. Such language is only applicable to the relation between an agent and patient, when the agent and the patient (or at any rate the agent) can exist separately. But self-consciousness and its object, will and its object, form a single individual unity.

14. If a person however persists in asking this question, the answer must be both “yes” and “no”. “Yes” in that nothing external to him has power over him and “no” in that he is nothing other than his will. 

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15. The discussion thus far has lead to this conclusion: that a man’s will is nothing other than himself and that to ask if he is free to will is to ask an absurd question for given that his will is himself, his will is necessarily free. [Comment: This is the sense in which the will is always free (paragraph 1).] But now, it might be considered what is the character of the objects that are willed. To those inspired by Locke, freedom has been claimed or denied for the will irrespective of the objects willed, on whose nature the goodness or badness of the will depends.

If they decide that a man is ‘free to will,’ they mean that he is so in all cases of willing, whether the object willed be a satisfaction of animal appetite or an act of heroic self-sacrifice; and conversely, if they decide that he is not free to will, they mean that he is not so even in cases when the action is done upon cool calculation or upon a principle of duty, as much as when it is done on impulse or in passion.

16. On the other hand, for the Stoics, St. Paul, Kant, and Hegel, freedom of the will is intimately connected to the nature of the objects willed. Only that will which wills good objects is free but that which wills bad objects, is unfree. Obviously, this requires that we make a distinction between good and bad will but also, and this is important, that an element of identity be found to establish them as wills in the first place. This element of identity is ignored by Plato as well as by St. Paul. But it is present in Kant and Hegel. And this is what has been stressed before: that “[willing] is not a determination from without, like the determination of any natural event or agent, but the realisation of an object which the agent presents to himself or makes his own.”

17. Whether this use of freedom is proper is a secondary matter. If it becomes common enough, the common man would easily understand it just as he easily understands the popular notion of freedom as non-interference by others.

Freedom construed both as expressing the condition of a citizen of a civilised state [as Plato and Hegel do], and as expressing the condition of a man who is inwardly master of himself [as Kant and St. Paul do] share a community of meaning for both leads to “his becoming what he should be, what he has it in him to be, in fulfilment of the law of his being.” This is the fulfilment of the demand for freedom. And this is the same demand of freedom which is expressed by the common juristic conception of freedom.

18.  The juristic conception of freedom, it might be said, lies essentially in the feeling of a possibility rather than a reality. To a captive just liberated or to a child in early life, the freedom (to act in whatever way he likes) might seem boundless, but in reality, this freedom does not amount to much. Everywhere we go, our actions are constrained. “Thus to the grown man, bred to civil liberty in a society which has learnt to make nature its instrument, there is no self-enjoyment in the mere consciousness of freedom as exemption from external control.” This makes the quest for freedom, understood as non-interference, important.

In the same way, ‘freedom’ is the natural term by which to characterise the the state in which man shall have become all that he has in him to be after having defeated those wants and impulses that interfere with the fulfilment of his possibilities.

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19. Now, we can turn to the “essential question as to the truth of the view … that freedom is in some sense the goal of moral endeavour … such that there is some will in a man with which many or most of his voluntary actions do not accord, a higher self that is not satisfied by the objects which yet he deliberately pursues.”

This notion of the higher self has been put forth in various forms by St. Paul, Kant, and Hegel. Here, it has been put forth as follows: “that a man is subject to a law of his being, in virtue of which he at once seeks self-satisfaction, and is prevented from finding it in the objects which he actually desires, and in which he ordinarily seeks it (emphasis added, see paragraph 1).” That’s to say there is a law of man’s being whose satisfaction is prevented by the objects that we ordinarily desire. We might understand this by differentiating, as Kant did, between the pure autonomous will which concerns itself with the law of his being and the empirical heteronomous will which concerns itself with those objects which he actually desires, and in which he ordinarily seeks satisfaction. But these are separate wills. Can we sensibly, then, ascribe man’s quest for self-satisfaction as directed to certain objects (i.e. that informed by his empirical will) to the same law of his being (i.e. that which is at one with his pure will) which prevents it from finding it there? 

20.  Well, the pure will, which is a consciously self-realising principle, and the empirical will are not separate but one. The latter is just the former except in that it appears in this or that state of character.

By a consciously self-realising principle is meant a principle that is determined to action by the conception of its own perfection, or by the idea of giving reality to possibilities which are involved in it and of which it is conscious as so involved; or, more precisely, a principle which at each stage of its existence is conscious of a more perfect form of existence as possible for itself, and is moved to action by that consciousness.

21. How do we understand this unity and difference? The unity lies in that it is the same self-realising prinicple that works in both the pure and empirical will. The difference lies in the extent to which they realise the principle. The pure will, whose reality might be ascribed only to God, realises it fully, is fully reconciled with it. But in men, the empirical will at best only tends towards realisation and reconciliation with the form that the pure will takes, which is reason. Put in different words, in men, “the object of [the empirical] will is intrinsically or potentially, and tends to become actually, the same as that of reason.” He is thwarted from realisation by natural impulses: ‘the objects which he actually desires, and in which he ordinarily seeks it’. These impulses are the result of the work of the self-realising principle and not to be extinguished or denied but rather fused or reconciled with those higher interests “which have human perfection in some of its forms for their object.”

22. When this reconciliation or fusion happens, a man may be said to be truly free. He is free in the sense “he is the author of the law which he obeys … from that impulse after self-perfection which is the source of the law or rather constitutes it.” He is also free not only in the sense that he “‘delights in the law after the inward man’ (to use St. Paul’s phrase) while his natural impulses are at once thwarted by it and thwart him in his effort to conform to it, but [because] these very impulses have been drawn into its service, so that he is in bondage neither to it nor to the flesh.”

There is an appearance of equivocation, however, in this way of speaking, because the ‘will’ which is liable not to be autonomous ... is not this self-realising principle in the form in which this principle involves or gives the law. On the contrary, it is the self-realising principle as constituting that effort after self-satisfaction in each of us... The equivocation is pointed out by saying, that the good will is ‘autonomous’ in the sense of conforming to a law which the will itself, as reason, constitutes.

23. In God (or the ideal man), reason and the will are one. But in the historical man, the latter only tends towards the former, i.e. they only tend to unite. “The moral progress of mankind has no reality except as resulting in the formation of more perfect individual characters.”

24. How does/can the reconciliation between reason and will happen?

“A certain action of the self-realising principle … result[s]… in a [conventional morality, a] system of recognised rules (whether in the shape of law or custom) as to what the good of society requires, which no people seem to be wholly without.

The moral progress of the individual, born and bred under such a system of conventional morality, consists (a) in the adjustment (which it is the business of education to effect) of the self-seeking principle in him to the requirement of conventional morality … which is … a determination of the will as in the individual by objects which the universal will has brought into existence.

It consists (b) in a process of reflection, by which this feeling in the individual of what is expected of him becomes a conception of something that universally should be, of something absolutely desirable, of a single end or object of life.”

25. It finally consists in (c) “the growth of a personal interest in the realisation of an idea of what should be, in doing what is believed to contribute to the absolutely desirable, or to human perfection, because it is believed to do so. Just so far as this interest is formed, the reconciliation of the two modes in which the practical reason operates in the individual [i.e. reason and will] is effected.”

There can be no real determination of the will by reason unless both reason and will are operating in one and the same person. A will is not really anything except as the will of a person, and, as we have seen, a will is not really determinable by anything foreign to itself: it is only determinable by an object which the person willing makes his own.

Affirmative Action: Is it Fair? by Ronald Dworkin — A Summary

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Ronald Dworkin, “Affirmative Action: Is It Fair?” in Sovereign Virtue: The Theory and Practice of Equality (Cambridge, Mass.: Harvard University Press, 2000), 409–26.

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I

In the 1978 Bakke case, the United States’ Supreme Court upheld the constitutionality of Affirmative Action (hereafter AA), and ruled that racial preferences are permissible if their purpose is to improve racial diversity among students, and if they do not stipulate fixed minority quotas but take race into account as one factor among many. The Supreme Court might reconsider this ruling and declare AA unconstitutional. This is thanks to the 1996 Hopwood case where the Fifth Circuit Court of Appeals struck down the Texas Law School’s AA plan and effectively declared all university AA unconstitutional.

[Note: This essay was published in 2000. The 1996 Hopwood decision was abrogated by the U.S. Supreme Court in the 2003 Grutter v. Bollinger case where the AA admissions policy of the University of Michigan Law School was upheld.]

Is AA unconstitutional? Does it violate the 14th Amendment’s guarantee of “equal protection of the laws”?

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

14th Amendment to the US Constitution

The equal protection clause is not meant to protect citizens from all legal distinctions and classifications that disadvantage them. Governments take a lot of decisions — which medical research to support, which art to subsidize, which industries or products to protect by tariffs or other trade policy, etc. — which have both adverse and beneficial consequences for vast sections of the population. In principle, such decisions should be made in the general interest of the community even if they have adverse consequences for some. In practice, such decisions are often determined by the political power that certain interest-groups might have and not considerations of general interest.

The equal protection clause is not violated when a group loses out on the merits of the case or through politics. That clause is violated only when a group loses out due to a special vulnerability to prejudice or hostility or stereotype and its consequent diminished standing in the political community. The clause does not guarantee each citizen that he will benefit equally from every political decision; it guarantees him only that he will be treated as an equal — with equal concern and respect — in the political processes and deliberations that produce those decisions.

We must distinguish between two different principles that take equality to be a political ideal. The first requires that the government treat all those in its charge as equals, that is, as entitled to its equal concern and respect. That is not an empty requirement: most of us do not suppose that we must, as individuals, treat our neighbor’s children with the same concern as our own, or treat everyone we meet with the same respect.... The second principle requires that the government treat all those in its charge equally in the distribution of some resource of opportunity, or at least work to secure the state of affairs in which they all are equal or more nearly equal in that respect.

Ronald Dworkin, “Liberalism”, in A Matter of Principle, 1985, p. 190. But first published in Public and Private Morality, 1978, p. 125.

The difficulty with the 14th amendment is that it forces courts not only to judge on the consequences of legislation for different groups, but the motive behind that legislation. Was the law — in this case, AA policy — that injures this or that group — in this case, white candidates who would have got admissions were it not for AA policies — the product of a forbidden, prejudiced attitude toward that group, or of more benign motives? It is obvious that motives cannot be discerned in the manner of consequences. In addition, it is impossible to translate the individual motives of the legislators into an overall motive which can be attributed to the legislation.

The courts approach the question of motives indirectly. They have devised doctrines intended to “smoke out” improper motives by concentrating on the apparently more objective question of a law’s actual effects. They subject all political decisions that are challenged on equal protection grounds to an initial threshold classification. If the group upon which a law imposes disadvantages forms a “suspect” class  — “a class … that is saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process — then the decision is to be subject to “strict scrutiny”  meaning that the decision must be rejected as violating the equal protection clause unless the disadvantage can be shown to be essential in order to protect some “compelling” governmental interest. 

But if those whom a law disadvantages do not form such a “suspect” class — if they are only the members of a particular business or profession or the residents of a particular area, and are not different from their fellow citizens in any way historically associated with prejudice or antipathy — then that law is subject to only a “relaxed” scrutiny meaning that the law constitutional unless it can be demonstrated to serve no purpose or point at all.

It is very difficult to apply these doctrines to the AA debate. The white candidates who form the disadvantaged class do not, by any stretch of the imagination, form a “suspect” class. AA policies seem to be entitled to relaxed scrutiny. However, race is so closely associated with bias and favoritism that some racial classifications that seem benign on the surface might turn out, after a closer look, to be constitutionally offensive. An AA scheme that gives preference to blacks might conceivably have been constructed to reduce the number of Asian Americans or Jews admitted. However, such offensive motivations can only be revealed by a closer look, something that a relaxed scrutiny would not allow. But subjecting AA schemes which benefit a genuine suspect class — black candidates — to the same strict scrutiny that is applied to schemes/laws/classifications that harm a suspect group seems insensitive to the moral differences between the two aims.

What must be done then? A case-by-case approach must be pursued which accounts for, among other pertinent factors, the character of the groups benefited and disadvantaged by the program, the racial or other character of the officials who have designed and will administer the plan, and whether the plan aims at a goal. No doubt, such an approach requires more judicial work and provides less legal predictability but with time, these shortcomings will be overcome.

However, the Supreme Court has, in recent cases, subjected all racial classifications, including those that are apparently designed to favor rather than injure suspect groups, to strict scrutiny. In the 1986 Croson case, the Court struck down a Richmond, Virginia, city council plan that required city contractors to subcontract at least 30 percent of the dollar amount of any contract to minority-owned firms. Justice Sandra Day O’Connor ruled that Richmond’s claim that it was seeking a racially more diverse local construction industry was not a “compelling” interest. The low participation of minority business enterprises was not the result of injustice authored by the city, either directly, by its own discriminatory practices, or “as a ‘passive participant’ in a system of racial exclusion practiced by elements of the local construction industry”.

The Hopwood decision relied heavily on the Supreme Court’s Croson decision. The Fifth Circuit judges in the Hopwood case argued that no state institution may use a racial classification for any purpose except to remedy the continuing effects of, following Croson, its own direct or indirect discrimination. The Texan Law school could not satisfy that test, the judges said, because it had ceased discriminating against minorities many years ago.

How to make sense of this? Has Croson and other decisions had this devastating effect on AA policies?

II

The strict scrutiny test can be interpreted in two very different ways which are based on two very different assumptions about the constitutional status of racial classifications.

For the first, any racial classification imposed by any branch of government for any purpose whatever automatically violates the equal protection clause in principle. Only that racial classification will be tolerated which is absolutely necessary — hence, this might be called the “overriding necessity” interpretation — either as the only available means for that branch to end its own past and continuing racial discrimination, or to forestall some danger of such dramatic urgency — “a social emergency rising to the level of imminent danger to life and limb” to use the words of Justice Scalia — that we must overlook a grave constitutional wrong in order to avoid that danger.

The second does not assume that every racial classification violates the 14th Amendment, even in principle, and it therefore does not assume that no racial classification is tolerable unless it is required by some emergency sufficiently grave to justify overlooking a constitutional wrong. Racial classifications, in this view, violate the equal protection clause only when they have been generated by the unacceptable attitudes of prejudice or stereotyping that the clause outlaws. This view imposes the burden of proof on any institution that uses racial classification to produce evidence which is sufficiently compelling to rebut — hence, this may be called the “rebuttal” interpretation — any suspicion of offensive motivations.

The rebuttal version is closer to the constitutional principle than the overriding necessity version. There is no constitutional warrant for assuming that the equal protection clause prohibits all racial classifications regardless of the purposes they serve. The 14th Amendment does not mention race, and there is no reason to think that those who drafted and endorsed that amendment meant to forbid all racial classifications outright.

And it is this version that has been argued for by many, though not all, Supreme Court judges. For instance, in the Croson case, Justice O’Connor opined that “classifications based on race carry a danger of stigmatic harm. Unless they are strictly reserved for remedial settings, they may in fact promote notions of racial inferiority and lead to a politics of racial hostility (emphasis added).” A careful, case-by-case examination, cannot be replaced by a flat, mechanical rule striking down all plans that did not meet a simple a priori test. Justice Stevens, in the same case, said that racial classifications should be judged in terms of their impact on the future, and expressly rejected any implication that “a governmental decision that rests on a racial classification is never permissible except as a remedy for a past wrong”. 

III

Thus, it may thus be said that the Hopwood decision which struct down Texas Law School’s AA program as unconstitutional was wrong. However, it does not follow that the Courts cannot strike down race-sensitive admissions schemes. Even on the basis of the rebuttal reading of strict scrutiny, they can do so.

[Oh! By the way, Dworkin himself prefers a case-by-case approach to the rebuttal version (see Section I).

[E]ven the rebuttal version imposes too heavy a burden on branches and departments of government, from Congress to city councils, that are struggling with intractable problems of de facto racial segregation in industry and politics. My point in distinguishing the rebuttal version from the overriding necessity version of strict scrutiny is not to endorse the former, though it is plainly preferable to the latter, but only to clarify what the Court has actually decided, and what its past decisions entail in future cases. (Footnote 15)]

How can, if at all, university AA plans meet a strict scrutiny test as construed by the rebuttal version? The justifying purposes for race-sensitive admissions tests are, first, the universities’ own need for racial diversity in their student bodies, and, second,  the community’s need for a larger presence of minority members in important political, business, and professional roles. Are these purposes compelling? Does the record of AA policies rebut any trace of reasonable suspicion that the courts might have against the institutions implementing AA?

University admissions are in a strong position to dispel such suspicions. University admissions policies are not set by politicians, who might hope to court the votes of a racial bloc, but by faculty members, who are not running for office. Their interest in diversity is traditional and recognized. Indeed, many universities believe that it is irrational to seek diversity in geographical origin, in social class, and in cultural orientation, and not also to seek racial diversity. Racial diversity is sought because race is itself important. Besides, universities have used AA programs judiciously with no tendency to expand them beyond sensible proportions. There is no genuine risk that race-sensitive admissions programs will be used as a pretence for disfavouring any other particular group of applicants. In fact, the search for racial diversity among students has been accepted as a compelling interest that survives strict scrutiny by many members of the Supreme Court.

“The argument is therefore strong that the Bakke principle,” — that racial preferences are permissible if their purpose is to improve racial diversity among students — “in force for over twenty years, remains good constitutional law, and that American colleges and universities · may continue to rely on that principle to justify using race-sensitive admissions policies to secure a diverse student body.”

However there is yet another justification for race sensitive admission policies — the deplorable absence of blacks from key positions in government, politics, business, and the professions. This is the need for a larger presence of minority members in important political, business, and professional roles in American society. Many statements in various Supreme Court judgments appear hostile to this justification. They see AA policies as compensatory and point out that it is a mistake to suppose that one race “owes” another race compensation. Such statements, however, fail to note the distinction between backward-looking justifications of racial classifications as compensatory and forward-looking justifications that argue that such classifications may, in some circumstances, be in the general interest of the community as a whole.

Race-sensitive admission policies of universities are not compensatory. Rather they are forward-looking. Great universities hope to train more blacks and other minority students not to repay them for past injustice, but to make the future better for everyone by helping to lift a curse that the past laid on us all. The worry that any broad and general remedial justification for AA would license racial preferences until every industry or social or professional stratum had the same racial and ethnic composition as the nation as a whole is misplaced when applied to higher education. This is because colleges, universities, and professional schools use race-sensitive standards not in response to any central government mandate but through individual decisions by individual schools. They don’t and can’t fix how many members of which races will occupy what roles in the overall economy and polity. They seek to increase the number of blacks and other minorities who are in the pool from which other citizens will choose employees, doctors, lawyers, and public officials in the normal way.

“If the justices recognize this aspect of what our best universities aim to do, as well as their academic need for educational diversity, then they will have served us particularly well. They will have acted not just as judges allowing a crucial educational initiative to continue, but as teachers helping to explain to the nation the true and continuing costs to everyone of our racist past, and the distinct promise of an educational policy that can help us all to achieve, if we really want it, a more perfect union.”

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Affirmative Action: Does it Work? by Ronald Dworkin — A Summary

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Ronald Dworkin, “Affirmative Action: Does It Work?,” in Sovereign Virtue: The Theory and Practice of Equality (Cambridge, Mass.: Harvard University Press, 2000), 386–408.

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The short answer is, “Yes, absolutely!” 

The essay draws this emphatic response on the basis of the book The Shape of the River: Long–Term Consequences of Considering Race in College and University Admissions by William G. Bowen and Derek Bok (Princeton: Princeton University Press, 1998). 

This book has been hailed as the one that “forever changed the debate on affirmative action in America. …Its conclusions mark a turning point in national discussions of affirmative action — anything less than factual evidence will no longer suffice in any serious debate of this vital question.” To quote Dworkin:

[The book’s] analysis has significantly raised the standard of argument. Impressionistic and anecdotal evidence will no longer suffice: any respectable discussion of the consequences of affirmative action in universities must now either acknowledge its findings or challenge them, and any challenge must match the standards of breadth and statistical professionalism that Bowen, Bok, and their colleagues have achieved. (“Affirmative Action: Does it Work?” p. 390)

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Just a word on the metaphor of the river. To quote the beginning of the book:

Stretching from St. Paul to New Orleans, Mark Twain’s Mississippi winds for twelve hundred miles through fog, rapids, slow eddies, sand bars, bends, and hidden bluffs. Drawing upon his own experiences on [Life on] the Mississippi, Twain created an image of the river as both physically central to the United States and symbolically central to the progress of the country. The image of the river is also central to the story of our book, which is concerned with the flow of talent — particularly of talented black men and women — through the country’s system of higher education and on into the marketplace and the larger society. The image most commonly invoked in discussions of this process is the “pipeline.” We often hear of the importance of keeping young people moving through the “pipeline” from elementary school to high school to college, on through graduate and professional schools, and into jobs, family responsibilities, and civic life. But this image is misleading, with its connotation of a smooth, well defined, and well understood passage. It is more helpful to think of the nurturing of talent as a process akin to moving down a winding river, with rock-strewn rapids and slow channels, muddy at times and clear at others. Particularly when race is involved, there is nothing simple, smooth, or highly predictable about the educa­tion of young people. (Preface, p. 1)

To quote another voice:

“I’m calling for a temporary restraining order” on the two metaphors, said [Michael] Olivas, the Bates Professor of Law at the University of Houston Law Center. “The pipeline and pool paradigms are inapt,” he continued, in a lecture titled “Academic Life: In Search of the Perfect Metaphor.” “They misconstrue the problem. A pool is static, likely to turn brackish and is bounded. It cannot replenish itself. A pipeline is even worse. It’s a foreign mechanism used to leech valuable products from the earth. It can leak, damage the environment, rust or clog up.”

A better metaphor for the use of historical records and social science data to correct injustices in higher education, he said, is the river. Couching issues of racial and ethnic diversity as a “pool” problem “suggests that there is a supply shortage or that someone is merely using bad fishing techniques,” Olivas said. “And saying there is a ‘pipeline problem’ casts injustice as the result of ‘a foreign mechanism’ that is experiencing merely a ‘glitch in conveyance.’”

“These are not rich enough metaphors,” Olivas declared. “A better one is the river. A river supplies nutrients and conveys resources. It constantly changes form and can wear down rock. It has a natural filtration system, can adapt, can be altered and even reversed. This is the image I wish to convey. Efforts to make our schools reflect demography will lead to improvement over time.”

And therefore, one find articles, in the debate on Affirmative Action, with titles such as Two Views of the River (which by the way is inspired by Mark Twain, again), Meeting Across the River, or The Changing Shape of the River.

That’s quite enough. On with the summary.

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I

America’s finest institutions have pursued race sensitive admission policies for decades to increase the number of students from minorities, especially blacks. 

Critics of such policies, also known as affirmative action (hereafter AA), argue that it has lowered educational standards by admitting students unqualified to benefit from the education they receive.

Before considering this question, which will be done in the light of the book, The Shape of the River, we should distinguish two main strands of the debate on AA. The first is a matter of principle: Is AA unfair in so far as it fails to take adequate stock of the individual merits of each prospective student? The second is a matter of practical consequence/policy: Does AA do more harm than good by, to return the the question posed in the previous paragraph, admitting blacks beyond their capacities, or by stigmatising them as somehow inferior, which makes them more, not less, conscious about race? The two questions are not separate. People think AA policies are fair, or unfair, because they realise, or restrain, certain substantial social goods. But they are also independent in that admissions that consider race as an important factor might still be fair, or unfair, even if they realise, or restrain, whatever social goods are being sought.

The debate has mostly been concerned with the practical aspect. And so will the next two sections of this essay. Most critics who charge AA policies of being counterproductive — of  perpetuating a sense of black inferiority (among both blacks and whites), of promoting black separatism, and increasing race consciousness, etc. — rely on sketchy factual evidence, isolated newspaper reports, and introspective or otherwise anecdotal accounts. The River study disproves these objections on the basis of solid empirical evidence. 

A few words on the study. It analysed an enormous data base of records, called the College and Beyond (C&B) data base which contains information about each of more than 80,000 undergraduates who matriculated at twenty-eight selective colleges and universities in 1951, 1976, and 1989; these institutions are representative of the elite schools that have used AA. In the case of the 1976 and 1989 cohorts, the data base records the undergraduates’ race, gender, high school grades, SAT scores, college majors and grades, extracurricular activities, any graduate or professional school record, and, for many, family economic and social background. It also presents information about the post-university experience of all those in the sample who answered detailed questionnaires sent out when the data base was being compiled.

The final section will consider the objections of unfairness raised against the principle itself, irrespective of its practical consequences. It will argue that AA is just and fair.

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II

Does AA accept unqualified blacks? No. The average number of black students in the schools covered in the analysis (which, unless otherwise obvious, will mean the analysis presented in the book, The Shape of the River), increased from 0.8 percent in 1951 to around 7 percent in 1989. Much of the increase was due to race sensitive admissions. If such race-sensitive admissions were not followed,  the number of black entrants would have declined to between 2.1 and 3.6 percent for all schools in the study. Not because those who would have been “retrospectively rejected” were unqualified but because of extraordinary improvement in recent decades in the academic qualifications of white applicants, i.e. because the white candidates were spectacularly well qualified. 

Do blacks waste the opportunity they are offered? Not really. The black dropout rate in the schools analysed is small by national standards: 75 percent of the 1989 black cohort graduated from the school they entered within six years. This graduation rate however is lower than that of whites.

III

Has AA produced, as hoped, more successful black businessmen, professionals, and community leaders? Certainly. While it is true that black male graduates from the twenty-eight schools in the 1976 cohort found less-well-paid jobs than their white classmates who had parallel test scores and college or professional school grades, black graduates earn considerably more than the average black with a B.A. degree. Also, while both black and white college graduates are equally likely to participate in various kinds of civic and professional groups, at least among those studied, black men are strikingly more likely to do so, especially in those activities that seem most important to black communities, including social service, youth clubs, and elementary and secondary school organizations.

Does racial diversity in a university’s student body help to break down stereotyping and hostility among the students, and, if so, does the benefit endure in post-university life? Yes to both, and to a significant extent. More blacks than whites thought knowing people of other races particularly important. More black than whites rated the value of their college experience in improving their ability to “get along with” people of other races as “very important”. Also, Even though black students made up less than 10 percent of the student body, 56 percent of the white respondents (in the 1989 cohort — group — said they knew two or more black students well while 88 percent of the black students said that they knew two or more white students well. 41 percent of the 1951 cohort — the group which might be expected to be more conservative about AA since the policy didn’t exist then  —  reported that they believe that a great deal of emphasis should be placed on seeking racial diversity. This is compared to 37 percent and 48 percent of the 1976 and 1989 cohorts.

[T]he River study gives some reason to doubt whether there is any general and deep-seated antagonism to affirmative action specifically in university admissions. Of course, many rejected university applicants (including, presumably, the plaintiffs in the lawsuits I mentioned) are indeed resentful. But the study estimates the number of once-rejected students who are resentful as relatively low.

Does AA damage blacks by insulting or mortifying them, or destroying their self-respect, or poisoning the black image? Yes, but only for very few. If many blacks felt insulted, the cost would be great. However, the overwhelming majority of blacks canvassed in the River study applaud the race-sensitive policies of their university. They think that their universities should now place more, not less, emphasis on racial diversity, and they accept what the study confirms. 

Could the proportion of blacks in prestigious institutions be maintained if AA was abandoned and race-neutral standards used instead? No. On the basis of plausible assumptions, that a strict race-neutral admissions policy would have reduced the number of blacks by between 50 percent and 75 percent. The suggestion has been made that consideration of low income, and not race, would help maintain the number of blacks. This is fallacious because even though black applicants are disproportionately poor, poor applicants are still dominantly white.

Is the United States better off, judged strictly by the outcome, because its most selective universities and colleges have practiced AA over the past thirty years? Yes. The high correlation the study establishes between the selectivity of the school attended and later success suggests that many fewer blacks would then have become prominent professors, doctors, or lawyers, or high-salaried and powerful business executives, or political or community service leaders, than the actual graduates have become. 

In all the dimensions in which our society is stratified — income, wealth, power, prestige, and authority — blacks are greatly underrepresented in the top levels, and the resulting de facto racial stratification is an enduring shame, waste, and danger. [We cannot] think ourselves better off if that racial stratification were even more absolute than it is, and if we saw no or fewer signs of its lessening.

IV

Does AA violate the right of candidates to be judged only on the basis of their individual qualifications?

What is a qualification is this context? For a beauty contest or a quiz, the relevant qualification is some physical or intellectual quality. For a book award, the qualification is a prior, or backward-looking, achievement. In other contexts, such as that of choosing a doctor, the qualification is a forward-looking promise. The doctor is chosen based on considerations of what he can do for you in the future, on the basis of a forward-looking promise. The doctor’s natural talents or prior achievements or relevant only in so far as they are good indicators of his forward-looking promise.

Sufficient attention [must be paid] to the distinction that Justice Stevens has several times made-between backward-looking justifications of racial classifications as compensatory and forward-looking justifications that argue that such classifications may, in some circumstances, be in the general interest of the community as a whole.

Compensatory [i.e. backward-looking] justifications suppose that affirmative action is necessary ... to “make up” to minorities for damage done to their race or class in the past. But universities do not use race sensitive admission standards to compensate either individuals or groups: affirmative action is a forward-looking, not a backward-looking, enterprise, and the minority students whom it benefits have not necessarily been victims, as individuals, of any distinct injustice in the past. Great universities hope to train more blacks and other minority students not to repay them for past injustice, but to make the future better for everyone by helping to lift a curse that the past laid on us all.

Ronald Dworkin, “Affirmative Action: Is it Fair?”, In Sovereign Virtue, p. 424. 

University admissions are contexts or competitions of this last sort. Admissions are not prizes for past achievements or effort, or as medals for inherent talents or virtues. The aim of admission policies is to try to choose a student body that, as a whole, will make the greatest future contribution to the legitimate goals their institution has defined. These goals need not be political or economic in any narrow sense. Educational institutions, especially the best financed and most prestigious ones, are instead expected to contribute to science, art, and philosophy, whose advancement we might take to be part of our collective public responsibility, and to select students and faculty very much with that goal in mind.

But of course, such a goal cannot be the only goal of educational institutions. They are expected to help the students and the community in general in more practical ways as well. “[A] great university may properly decide to study the treatment of AIDS or Alzheimer’s disease even when it knows that different, more basic research would be theoretically more rewarding.” Besides, different educational institutions are expected to adopt varying goals and devise strategies most appropriate for the realisation of those goals.

The point is that given the goals that an institution has set, academic qualifications such as high SAT scores and grades are only one among others. “The list of other qualifications is long: it includes motivation for public service, athletic ability, unusual geographical background, and, in the case of some of these schools, ‘legacy status.’”

[N]one of [the insitutions] has treated these distinctly academic qualifications as exclusive: they have all from time to time rejected candidates with top SAT scores and grades — even black candidates — in favor of other students with lower grades and scores.

The consideration of race as a qualification in addition to the others has served at least two goals traditionally set by institutions — diversity, and improvement of the collective life of the community.

First, it is “plausibly assumed that students are better equipped for commercial and professional life, and better prepared to act as good citizens in a pluralistic democracy, if they have worked and played with classmates of different geographical background, economic class, religion, culture, and — above all, now — race.” The objection that race — like, for instance, the preference for soul music — is an inappropriate or arbitrary consideration for diversity misses the point that it is race itself which is the relevant aspect of diversity being sought. 

Second, institutions have “traditionally aimed to help improve the collective life of the community … by helping to make that collective life more just and harmonious [which] are, after all, among the main ambitions of our law schools and schools of politics and public administration.” And it is right to think that “the continuing and debilitating segregation of the United States by race, class, occupation, and status is an enemy of both justice and harmony.” Race sensitive admission seek to correct and remove such segregation.

Thus, AA in no way compromises the idea that students be admitted based on relevant qualifications. Given the kind of forward-looking competition that university admissions are and given the goals of diversity and communal harmony adopted by institutions, race is an important and relevant qualification.

I do not mean (as some critics have accused defenders of affirmative action of supposing) that black color is in itself a virtue or an aspect of merit. But it is nevertheless a qualification in the sense I have been describing. We do not count a person’s height as a virtue or a merit. But someone who is tall may just for that reason be better able to contribute, on a basketball court, to one of a university’s traditional goals, and in the same way, though for sadder reasons, someone who is black may for that reason be better able to contribute to its other goals, in the classroom and dormitory and in the course of his or her later career.

Why, then, is AA so widely thought unfair? Why do even many of its supporters concede that it is a distasteful remedy, even if, in their view, a necessary one?

It is argued often that race-sensitive admissions judge applicants not as individuals but as members of large groups. This objection has been upheld against crude forms of AA. But in contemporary forms where admissions are given based on “case-by-case, all-things-considered judgments”, it no longer holds. No one is accepted or excluded simply by virtue of race.

It is also argued that race should not be considered as a qualification even in the qualified sense outlined above. Any consideration of race, it is contended, is wrong in principle, regardless of the consequences, however desirable they may be, that result. The idea is that it is impossible to distinguish between invidious and benign uses of race. Would we “accept a law school’s argument that it rejects all black applicants because it aims to help the community’s economy by producing graduates who will function effectively in local law firms that do not welcome blacks? We wouldn’t.

However, we can make a distinction between malign and benign uses of race. For one, we can think of individual rights which the malign uses of race violate but which the benign uses do not. Properly conceived AA programs do not violate the fundamental right of each citizen to be treated by his government, and by institutions acting with the support of his government, as equally worthy of concern and respect, i.e. the right to be treated as an equal. Nor does AA reflect, either directly or indirectly, prejudice against white citizens any more than seeking seeking geographical diversity expresses prejudice against people from large urban centers.

We must distinguish between two different principles that take equality to be a political ideal. The first requires that the government treat all those in its charge as equals, that is, as entitled to its equal concern and respect. That is not an empty requirement: most of us do not suppose that we must, as individuals, treat our neighbor’s children with the same concern as our own, or treat everyone we meet with the same respect.... The second principle requires that the government treat all those in its charge equally in the distribution of some resource of opportunity, or at least work to secure the state of affairs in which they all are equal or more nearly equal in that respect.

Ronald Dworkin, “Liberalism”, in A Matter of Principle, 1985, p. 190. But first published in Public and Private Morality, 1978, p. 125.

For another, “though it is important to allow universities ample latitude in designing their own purposes and goals, we can nevertheless insist that some goals a university might conceivably adopt are illegitimate and unacceptable, and we can dismiss, as such, a goal that panders to and reinforces the racial stratification of our society.”

But, it is further asked, how could we be sure, for example, that a program that gives preference to some minorities, like blacks and Hispanics, is not motivated by hostility to other groups of citizens — Asian Americans or Jews, for example-who score well on tests and who would be admitted in greater numbers if admission policies were race-neutral?

This argument is applicable in political cases, for example, against allowing city councils, which might well be dominated by black members or dependent on black support, to set aside a quota of construction contracts for black-owned firms. It is easy to see the malign use of race in such a case. But despite its force, “it seems fanciful and misplaced when applied to higher education.” The faculty and academic administrators are in no way beholden for power or wealth to the the communities benefited by AA policies. It is true that the consideration of race cannot be made completely immune to the suspicion of malign use, but “denying all universities the power to do what they can to improve diversity and social justice and stability, on the remote chance that some one or two institutions would abuse that power and escape undetected, would be like denying any use of public funds for medical research on the ground that a few researchers might be plagiarists or embezzlers”

There is yet another difficulty with considering race. It is an important psychological fact that many people do think that being rejected by a university because they are not of the “right” race is far worse being rejected because they lack some other quality, like a skill or physical ability, or even because their parents did not graduate from the school.” Such feeling is understandable but only because of our familiarity with invidious racial classification. “In a racist society people are indeed rejected absolutely and for who they are, and it is therefore natural that racial classifications should be seen as capable of inflicting a special form of injury.” But to state thus is to assert at the same time that race itself possesses no special importance in the metaphysics of our identity: the colour of your skin is no less genetically grounded than the fact that some people will never be able to score above 1400 on an SAT test no matter how hard they prepare.

The point is that it is only because we are so familiar with racial classification and discrimination that we see considerations of race as especially damning and contemptuous. It must be realised however that race is similar to many other differences in that it is genetically determined with us having no say: these other differences (difference in intellectual or athletic capacity, for instance) are such that their consideration do not lead the terrible psychological responses that consideration of race does. The peculiar “psychological character of race … is [thus] a product and sign of racism, and it must not be permitted to protect the racism that has generated it.”

Finally, it is often argued that that America’s social and constitutional history has committed us to a society that is colorblind as a matter not just of our ultimate goals but also of the means that we are entitled to use toward any goal. Race, in this line of argument, must play no role in any official affair whatsoever. It is asserted that a colorblind commitment would do a better job of confronting and eliminating racism in the long run would. This has been proved false by the River study. Besides there is no ground for supposing that the Constitution, or anything else, has committed the nation to that strategy of colourblindness. No plausible interpretation of the 14th Amendment — which guarantees “equal protection of the laws” — shows that it automatically  rules out all racial classifications as means to greater justice. “Nor have the American people, by any long-standing or sustained consensus, ruled out all such [racial] classifications for [greater justice].”

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

14th Amendment to the US Constitution

“So, according to by far the best evidence yet available, affirmative action is not counterproductive. On the contrary it seems impressively successful. Nor is affirmative action unfair: it violates no individual rights and compromises no moral principle.”

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What is Indian secularism and what is it for? by Rajeev Bhargava — A Summary

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Rajeev Bhargava, “What Is Indian Secularism and What Is It For?” India Review 1, no. 1 (January 1, 2002): 1–32.
https://www.tandfonline.com/doi/abs/10.1080/14736480208404618

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With the growth of Hindu nationalism and the consequent alienation of religious minorities, it is obvious that secularism in India is in crisis. The question is whether this crisis is due primarily to factors external to it, i.e. poorly practiced, in the wrong hands, undermined by inimical forces, or whether the cause of the crisis is internal to secularism itself, i.e. a deep conceptual flaw, a case of a wrong-footed ideal.

Indian Critiques of Secularism

T.N. Madan, Ashis Nandy and Partha Chatterjee have argued that secularism in India is in crisis in the second deeper conceptual, sense.

Madan argues that “in the prevailing circumstances, secularism in South Asia as a generally shared credo of life is impossible, as a basis for state action impracticable, and as a blueprint for the foreseeable future impotent”^[1]: impossible because a majority of the people in South Asia cannot make a distinction between the sacred and profane, as required by secularism, as they are deep adherents of some religious faith or other; impracticable because religion is pervasive and disestablishment of religion, predicated as it is on a particular mainstream Enlightenment view which sees religion as irrational, would be culturally unacceptable; and therefore, secularism is impotent to either fight fundamentalism — which, ironically, is  a product of state-sponsored anti-religiosity (i.e., secularism) — or serve as a blueprint for political action.

Nandy draws a distinction between religion-as-faith and religion-as-ideology. The former refers to “a way of life, a tradition which is definitionally non-monolithic and operationally plural” while the latter means “a sub-national, national or cross-national identifier of populations contesting for or protecting non-religious, usually political or socio-economic, interests”.^[2] The crisis of secularism lies in the fact that modernisation creates religion-as-ideology, while ignoring religion-as-faith, and then generates secularism to meet this ideological challenge. The public/private distinction, so central to modern secularism, does not hold for the faithful and so, to ask people for whom religions hold immense importance to expunge their faith from the public realm is insensitive at best. At worst, it forces the communalisation of politics. Religion is forced, if you will, to enter public life through the back door.

Secularism, for Madan and Nandy, “is a comprehensive rationalist world view that, because of the incontestable irrationality of religion, seeks first the reversal of hierarchy between the secular and the religious and eventually the demise of religion altogether, its ejection from the belief systems of people”. It seeks to first depoliticise and then depublicise religion until it is thoroughly privatised.

Chatterjee’s analysis of secularism^[3] is a little different. For him, secularism is guided by non-religious principles. It is characterised further by its commitment to neutrality towards religions. In other words, the project of active exclusion of religion from the public or political domain must be carried out in a non-preferential manner. Clearly, these have not been met by the secularism practiced in India. The state has intervened in the affairs of some religions more than others deviating from the norm of neutrality making it deserving of the charge of favouritism and minoritism. For example, it changed Hindu personal laws quite significantly: polygamy was made illegal, the right to divorce was introduced, child marriage was abolished, inter-caste marriages were legally recognized. But it has been non-interventionist with respect to Islam.

In short, political secularism for these three writers means that, first, the state excludes religion from politics; second, the state then excludes religion from the wider public domain; third, it carries out this project of exclusion in a neutral way; and, fourth, it behaves neutrally toward this privatized religion. The first aspect may work in India but may not be morally desirable; the second is neither workable nor morally acceptable. If the second aspect does not work or is not morally acceptable, then the third aspect cannot work or be morally acceptable either. If the third does not work, then the fourth must fail. Ergo: Forget secularism, abandon it.

Theocracy, Establishment,
Multiple Establishment

First, some ideal-type distinctions must be made. A theocratic state is governed by divine laws directly administered by a priestly order claiming divine commission. Examples are ancient Israel, the Papal states, Iran as ruled by the Ayahtollahs and the Taliban-led Afghanistan.

On the other hand, a state that establishes religion grants it official, legal recognition. Here, religion benefits from a formal alliance with government but, unlike in a theocratic state, the sacerdotal order need not govern the state. Establishment of religion can mean the recognition of a single church or religion, as exemplified by the Anglican Church in England or the Roman Catholic churches of Spain and Italy. It can also mean the establishment of multiple religions. Here, the state recognises and perhaps nurtures all religions without preferring one over the others. Examples are the state of New York in the middle of the 17th century and the 14th century Vijayanagar kingdom in India.

Secular State as Disestablishment

A secular state is a state in which religion is disestablished. It means, and this is Feature I of secular states, that the separation of the state is from all religions. A secular state is not anti-religious but it ensures that religion does not become hegemonic. It also admits equality and peace not just among believers of different religions but among different kinds of religious believers as well as non-believers.

Values of a Secular State

A secular state also ensures religious liberty to all. This liberty has the following dimensions.  A secular state, and this is Feature II, gives liberty to the believers of one religious group. This is important because within religions there may be multiple interpretations with some being dominant. It, Feature III, grants this liberty non-preferentially to all members of every religious community. (This feature might be found in states that establish multiple religions. Such occurrence however is only incidental. In contrast, in a secular state, this feature is constitutive.) Individuals in a secular state, Feature IV, are free not only to criticize their religion but also to reject it and remain without a religion.

Religious equality and liberty thus outlined is one broad feature of a secular state. The other feature is that this equality and liberty extends to that of equal and free citizenship. If it were not so, a degree of religious liberty may easily go hand in hand with second class citizenship.

For instance, it may be that a person freely defies the authority of the religious head of his own denomination but is not free to challenge the authority of the state or that the undisturbed conduct of religious worship is guaranteed to religious dissenters or minorities, though they continue to suffer the statutory disabilities which had accumulated in the past against them.

The value of equal citizenship has two dimensions, active and passive. The former entitles a citizen to physical security, a minimum of material well-being and a sphere of one’s own in which others ought not to interfere. This entitlement should, Feature V, be available to everyone irrespective of religion. And since, citizenship is conditional upon education, no one must, Feature VI, be denied admission to educational institutions solely on grounds of religion. The latter recognises every citizen as equal participants in the public domain. It acknowledges, Feature VII, that every citizen must garner equal respect in the political domain.

What Secularism is Not

The core idea of secularism then is this: separation of religion and state for the sake of civic peace, religious liberty and equality of free citizenship.

First, secularism is not just about the separation of state from religion lacking in substantive values. Second, secularism is also not to be identified with rationalism, individualism, disenchantment, scientism, or even with whole process of modernization.

Secularism is not a comprehensive doctrine laden with every single substantive value in the empire of modernity nor merely a strategy with instrumental significance.

Third, secularism is not a single-value doctrine that prevents religious conflict. Neither the maintenance of peace among religions nor the institutionalisation of religious tolerance is sufficient to make a state secular.

Is the Indian Constitution Secular?

Yes.

1. Feature I — Article 27, Article 28(1).
2. Feature II — Article 25(1)
3. Feature III — Article 25(1)
4. Feature IV — Article 25(1), Article 27, Article 28(3)
5. Feature V — Articles 14, 15(1)
6. Feature VI — Article 29(2)
7. Feature VII — Article 16(1)(2), Article 325

The existence of these features in the Indian constitution means that secularism departs from strict separation. First, they enjoin the state to interfere in religion. Second, they necessitate a departure from strict neutrality or equidistance.

In short, some Articles in the Indian constitution support an individualist interpretation and others a non-individualist one. Some conceive separation as exclusion, others as non-preferential treatment and, finally, some depart altogether from separation understood as exclusion or neutrality. At the end of the day, a confusing, somewhat contradictory picture on secularism emerges from a reading of the constitution. Critics could hardly fail to notice this.

A Defense of Indian Secularism

Aid to Religious Institutions

Does giving aid to religious communities [Article 30(2)] violate secularism? It is instructive to turn to the Constituent Assembly Debates. The case against giving aid to religious instruction was made on three grounds. First, that the burden of such funding is borne by all but the benefit accrues only to some. Second, that it would favour majority religions. Third, that religious instruction would peddle in dogma and exacerbate communalism.

The following rejoinders may be considered. To the first, it must be said that institutions run by a religious community teach much more than religion and that others are burdened unfairly only if they are denied entry to such institutions. So long as funds are available to all religious institutions on a non-preferential basis, the argument that funding such insitutitons imposes an unfair burden on other citizens falls apart. To the second, while it is likely that the majority religious community will draw most of the funds, banning state funding would create the same state of affairs such that while the majority community is able to maintain its institutions, the minority communities may not be able to sustain theirs. And to the third, it could be counter-argued that proper teaching of different religions would instead help dispel caricatures and diffuse tension between religious groups.

“[B]y giving conditional aid to educational institutions run by religious communities and by ensuring their conformity to public standards, [the Indian constitution] appears to reconcile values of individual liberty, group autonomy, and equality of citizenship. Since secularism is equally committed to each of these values, far from violating core principles, Article 30(2) encapsulates them in the best possible manner.”

Community-based Rights

The recognition of community-based social rights, such as the right to establish educational institutions may be required by the principles of secularism. However, the same principles rule out the recognition of certain kinds of community-based political rights (see next section).

The Debate over Separate Electorate

In the Constituent Assembly Debates, the proponents of separate electorates contended that minorities are inevitable and the eradication of differences, impossible. A minimisation of differences is possible but only if the minorities are satisfied with the political framework of which they are part. Such satisfaction would be ensured if the minorities are given participatory voice in the legislature. The minorities are best placed to choose the representatives most appropriate for them. Therefore, there should be separate electorates.

While the premises of this chain of reasoning, offered by Pocker Sahib Bahadur, were acceptable to the opponents, its conclusion was rejected. Govind Ballabh Pant argued that separate electorates fail to ensure democratic accountability. Representatives of the majority would not, in such a system, be accountable to the minority, so that even if there is a formal presence of minority representatives, the majority could easily take decisions against the interest of the minority.

“Separate electorates were rejected not because they fostered communal difference as such or because they endangered a simple idea of national unity but because, as Patel put it, ‘they had in the past sharpened communal difference to a dangerous extent and had proved one of the main stumbling blocks to the development of a healthy national life’” (italics added by author).

“[D]emocratic states need cohesion, a common identity, a common personality, and a common agency. Democracy is not just a procedural issue but also a matter of identity. It allows for differences but it cannot stomach divisions which are ‘sharpened to a dangerous extent’. It was precisely for this reason that … eventually no political rights were granted to religious communities.”

Secularism: Community-based Rights and Principled Distance

By accepting community-based rights for religious minorities and endorsing state intervention in religion, the Indian constitution innovated a modern variant of secularism. The uniqueness of this secularism can be grasped only when the cultural and social context of India is understood.

First is the mind-boggling diversity of religious communities. Second is the emphasis, especially in Hinduism, on practice rather than belief and since practices are intrinsically social, any significance attached to them serve to valorise communities. These first two features entail inter-community conflicts. Third, many religiously sanctions social practices oppressive owing to their illiberal and inegalitarian character. Fourth, in Hinduism, the absence of an organized institution such as the church has meant that the impetus for effective reform cannot come exclusively from within.

Given this peculiar and demanding context, India could not simply replicate the classical liberal model. But despite deviation, India still continues to embody a model of secularism. Consider the three relations that constitute Donald Smith’s working definition of secularism (India as a Secular State 1963): religious liberty construed individualistically; equal citizenship, and; non-establishment and therefore to a strict separation of religion from state. Firstly, it is possible to construe religious liberty in terms of practices of groups rather than the beliefs of individuals. Secondly, while Smith’s version of secularism entails a charter of uniform rights, the commitment of secularism to equal citizenship can dictate community-based rights and therefore differentiated citizenship: this is reflected in the addition of community-specific social rights. Thirdly, separation need not mean strict non-interference. It could be a policy of principled distance which entails a flexible approach on the question of intervention or abstention, combining both, dependent on the context, nature, or current state of relevant religions.

It is important to understand that the idea of separation within a value-based secularism cannot mean exclusion, especially exclusion of the state from religious institutions. Recall [that] equal citizenship rights easily challenge hierarchical religions... . To uphold the value of equal citizenship, to ensure equal treatment and protect the ordinary life of citizens, the state may have to interfere in hierarchically organized religions. Secularism is consistent with, indeed requires such intervention.

It is true that the contitution explicitly sanctions interference only in Hinduism. However, this is merely the functioning of principled distance which entails just and impartial intervention. Impartiality does not mean neutrality understood as equidistance.

“In the strategy of principled distance, whether or not the state intervenes or refrains from action depends on what really strengthens religious liberty and equality of citizenship for all. …[T]he state may not relate to every religion in the same way, intervene in the same degree or in the same manner. All it must ensure is that the relation between religious and political institutions be guided by non-sectarian principles that remain consistent with a set of values constitutive of a life of equal dignity for all.”

The idea of principled distance derives from Ronald Dworkin’s distinction between treating everyone equally and treating everyone as an equal.^[4] The former requires that people be treated equally in the relevant respects. The latter requires that people be treated with equal concern and respect. This is compatible with differential treatment.

“To say that a state keeps principled distance from religion is to claim that it intervenes or refrains from interfering in religion, depending entirely upon whether or not some values (liberty and equality) are protected or advanced. Moreover, it is to admit that a state may interfere in one religion more than in others, depending once again on the historical and social condition of all relevant religions. …On this interpretation of separation, a secular state neither mindlessly excludes all religions nor is blindly neutral towards them.”

A strict absolutist wall of separation was never a constitutive feature of the Indian model of secularism. On the contrary, the wall here was always permeable.

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Footnotes

^[1] The quotation is from T.N. Madan, “Secularism in its Place,” The Journal of Asian Studies, 46 no. 4 (Nov 1987): 747–59. See p. 748.

^[2]The quotations in this sentence are from Ashis Nandy, “The Politics of Secularism and the Recovery of Religious Tolerance,” in Veena Das, ed., Mirrors of Violence (Delhi: OUP, 1990), pp. 69–93. See p. 70.

^[3] Partha Chatterjee, “Secularism and Toleration,” Economic and Political Weekly, 29 no. 28 (July 1994): 1768–77.

^[4] Ronald Dworkin, “Liberalism,” in Stuart Hampshire, ed., Public and Private Morality (Cambridge: Cambridge University Press, 1978), pp. 113–43. See p. 125.

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