The Hedgehog

“THE FOX KNOWS MANY THINGS,” the ancient Greek poet Archilochus said, “but the hedgehog knows one big thing.” The maxim was made famous by Isaiah Berlin in his essay, 'The Hedgehog and the Fox', in which he classified intellectuals into two categories: ones who view the world, like a fox, through many ideas, and others who, like a hedgehog, have one big idea. In Justice for Hedgehogs, the culmination of his life’s work, the American legal philosopher Ronald Dworkin, who died aged 81 on 14 February 2013, argued for one big idea: “the unity of value”. The ethical values that govern how we individually live our lives are inextricably linked to the moral values that govern how we interact with others, and the law ought to be interpreted through the lens of how these two values interact, he said. In other words, values in the ethical, moral and legal realms—and in all other realms as well—should fit together in a coherent way. Our understanding or interpretation of a given value (such as justice) should support, and even be derivable from, our interpretation of other values (such as liberty). We can picture this as a network, in which our most fundamental values are the nodes with the densest connections to other values and principles. Damage or remove these nodes, and the rest of the network disintegrates. On this conception, any value or principle must be interpreted or applied in a way that does not contradict, undermine or trump our fundamental values. Equally, political conceptions, such as laws, are defensible only when they fit well with moral and ethical principles that we hold; when they contradict these principles, it’s likely that the conceptions are flawed, and even damaging, in some important way.

Part of Dworkin’s aim in making these arguments was to integrate law and justice with morals. He shunned theories of legal positivism, the dominant school of thought for much of the 20th century, which argued that the law is grounded in its own institutions, customs and rules, and that morality is irrelevant in interpreting law. Instead, he argued that to properly interpret a law, judges must look beyond its mere wording; they must reconcile it with a broader system of laws and with values in the ethical and moral spheres of life. Statutes that don’t fit well into this broader system are likely to represent false beliefs about what’s of value, and to undermine the other values that we hold.

Dworkin used the First Amendment of the American Constitution as an example to justify his call for a systematic moral interpretation of the law. According to Dworkin, the amendment, which provides that Congress shall make no law abridging “the freedom of speech”, recognises an explicitly moral principle—“that it is wrong for government to censor or control what individual citizens say or publish”—and incorporates it into American law. Therefore, he argued, when a novel or controversial issue arises—for instance, whether the First Amendment protects pornography—judges must decide whether the moral principle that condemns censorship extends to pornography. A positivist, on the other hand, would eschew any moral judgment, and would look only at whether the law as it was enacted demands censorship of pornographic material.

India’s polity and legal system today are mired in all kinds of moral confusion and could do with a dose of Dworkin. Most significantly, India’s courts often purport to practice a breed of jurisprudence called textualism, which is closely allied with legal positivism. This approach holds that a statute’s ordinary meaning should govern its interpretation. This has led to absurd contradictions between our fundamental values and the implementation of the law. To take one example: while a freedom of speech has been guaranteed to citizens by our Constitution, the courts have, at times, sought to curtail this freedom by relying on specific statutes instead of on the totality of the rights guaranteed by the Constitution and on the larger system of values of which those rights are a part. In just the past few weeks, the release of a movie was delayed by what was perceived by a state to be a risk to its security; the sociologist Ashis Nandy was threatened with arrest after he made allegedly caste-ist statements; and the author Salman Rushdie was forced to stay away from Kolkata, where he was scheduled to promote a film adapted from his novel Midnight’s Children.

According to Dworkin, even if a majority might believe that our speech should be restricted, an inherent morality requires the protection of this liberty. “A policy is normally justified, for instance, if it would make the community safer by reducing violent crime: that is a good all-things-considered justification for increasing taxes to pay for more police,” Dworkin wrote. “But increased safety is not an adequate justification for forbidding unpopular speeches on street corners … The latter policies violate political rights—the right to free speech.” A perceived increase in safety—the reason given by the Tamil Nadu government for holding up the release of Vishwaroopam—is therefore never an adequate justification for curbing a person’s freedom of speech. “In a democracy no one, however powerful or impotent, can have a right not to be insulted or offended,” wrote Dworkin. “That principle is of particular importance in a nation that strives for racial and ethnic fairness … Whatever multiculturalism means—whatever it means to call for increased ‘respect’ for all citizens and groups—these virtues would be self-defeating if they were thought to justify official censorship.”

In the Nandy case, the Supreme Court, while issuing a stay on his arrest, asked him to refrain from making similar statements in the future. “Tell your client he has no license to make such comments,” a bench headed by Chief Justice Altamas Kabir reportedly told senior advocate Aman Lekhi, who was appearing for Nandy. Purporting to restrict Nandy’s freedom of speech in this way fundamentally threatens the coherence of our larger value system because it hacks away at one of that system’s central nodes. Although we must strive to interpret fundamental, yet apparently contradictory, rights—for example, the right to freedom of speech of one person, and the right to life of another—in a way that reconciles them, we cannot abrogate our fundamental rights for the sake of lesser claims, such as the specious right not to be offended. Because this lesser claim does not fit well with our larger system of laws and values, attempts to uphold it will inevitably conflict with, and therefore threaten, the other rights and values we hold dear. Although the bench’s remarks were offhand and without specific judicial weight, they displayed the attitude of a judiciary afflicted by not merely legal but also moral and ethical disarray.

THE INDIAN CONSTITUTION IS REPLETE with abstractions, and therefore has necessarily to be interpreted in one manner or another. For instance, Article 14 says the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. How should the term “equality” be construed? Is it a formal equality, which ensures simply that individuals must be treated alike irrespective of their sex, race or other characteristics; or is it a substantive equality, which ensures the ability of persons to compete on an equal basis regardless of differences in the obstacles (such as class and caste) that they each face? Dworkin argued that when we—especially the judiciary, which has the ultimate authority in these matters—are dealing with abstract principles, we must interpret them in a way that allows them to fit best with the totality of our laws and value system. Constitutional interpretations, in other words, must be in keeping with the foundational principles that merited the existence of the Constitution in the first place.

In the past, especially in the period that followed the Indira Gandhi-imposed Emergency, the court’s rulings abounded with these sorts of cohesive moral judgments. When, in Maneka Gandhi v. Union of India, the court found Articles 14, 19 and 21 to represent a collective set of rights that included a higher standard of judicial scrutiny—thus effectively incorporating into the law a new standard of “reasonableness” and a due process requirement—the court had embarked on a moral and universalist reading of the fundamental rights promised in the Constitution. The Constitution’s drafters had explicitly rejected due process considerations in reviewing a law, but the court in the Maneka Gandhi case, through its reading of the Constitution, found due process to be implicit in the Constitution’s principles. The fundamental rights contained in our Constitution, Justice PN Bhagwati wrote in his majority opinion, “represent the basic values cherished by the people of this country since the Vedic times and they are calculated to protect the dignity of the individual and create conditions in which every human being can develop his personality to its fullest extent.” The court therefore ensured that the interpretation of specific parts of the Constitution cohered with the foundational values that the document as a whole embodies, and that we, as a nation, prize. The court’s interpretation, therefore, drew upon values beyond what were at stake in the case, and vindicated the theory of a unity of value.

But while the Supreme Court in the post-Emergency phase did much to correct a period of amoral Constitutional interpretation that preceded it, there has been a re-emergence of cluttered thinking through an endeavour to balance rights with state policy. Several laws that offend free speech, for instance, continue in force, even though there have been occasions to consider their legitimacy. For example, section 295A of the Indian Penal Code punishes, with a fine and/or a prison term of up to three years, those who through speech “outrage [the] religious feelings of any class”. Section 505(2) punishes those who make statements that promote “enmity, hatred or ill-will” between different classes on grounds of religion, caste, language or race. The provisions are regularly invoked to constrain free speech, and yet, although the Supreme Court intervenes time and again to prevent such constrictions, these laws flourish.

The principal function of Article 19 is to validate a set of foundational liberties by giving them a constitutionally enforceable status. They are, by definition, a set of principles that are aimed at upholding our value system, and are consequently deserving of an interpretation in line with moral and universalist thought. A mere textualist approach, which would entail recognising that our freedom of speech is grossly limited, will not suffice, as ultimately it would prove counterproductive: by restricting speech we attack exactly what the framers sought to protect when giving the government the ability to control the right in special circumstances. Within the constraints of interpretation, the state must make the Constitution “what our sense of justice would approve, not because we must sometimes compromise law with morality, but because that is exactly what the law, properly understood, itself requires,” Dworkin wrote. What India needs today are not doctrinal balancing acts that perniciously limit our foundational rights in an attempt to uphold specific statutes, but greater judicial sensitivity and rigour: judges must interpret laws in a manner that ensures rights trump policy initiatives of the State, that protects the true meaning of our Constitution, and that preserves the unity of value.

India today may not be facing a “cultural emergency”, as Salman Rushdie described it, but rather a breakdown in the rule of law—at least in terms of enforcement of our freedom of speech and expression—driven by politicians eager to suppress such freedoms and abetted by judges attempting to balance morally incompatible “rights”. Although the Constitution specifies scenarios in which freedoms ought to be curtailed, the restriction cannot go so far as to grant the “right to be outraged” and the “right to abridge speech” the same fundamental status as the freedom of speech. A Dworkinian reading of our Constitution would give paramount status to our most foundational rights, and any exceptions would be reasonable only in circumstances in which they are morally justified, they don’t impinge the ethical independence of a person—a right that each person has to make fundamental choices about the best way to live—and they don’t go beyond the reasons why the Constitution, properly understood, endures.