A point of morals

When we were doing the second World War in class twelve, one of the activities we did was to pick up  one of the characters mentioned in the textbook, do some research on what it was like to be them, and then present a sort of profile in the class. One of my favourites was when Sonia took off her shoes, kneeled in them, and explained in the most matter-of-fact way possible what it was like to be a dwarf during Hitler's reign. I, true to form, only read the entire chapter for research, and came up with an elocution piece. One of my better executions of the dramatic and crusading style that I used at every opportunity. A Professor's dilemma. That free thought, non-fascist thought, should be stifled because people were seduced by the prospect of 'Arbeit und Brot' (work and bread: I remember because at the crucial point when I was about to drop this nativism, I forgot the words and had to check my note, ruining the effect in my own opinion). A thoroughly classist and condescending intellectual position, but true-to-life frequently enough for all that. At the time, the point was to do something impressively anti-Nazi, and I couldn't think of another problem a professor would have with him other than degrading the quality of human thought to mundane considerations, and falsely at that.

Reading the jurists Hart and Fuller on Gustav Radbruch, another possible dilemma comes to light. Radbruch, a hearty legal positivist before the Nazi regime, did a volte-face on the main question: the separation of law from morality. The positivist saw law as law, to put it inconsequentially, meaning that law was a thing apart from moral value, that its validity was entirely independent on its perceived moral value. Moral value only came into play when an individual confronted the existing body of law, and considered his position with respect to it. If it appeared to him evil, he was free to disobey, and indeed it would be his duty to do so.

Afterwards, he noted the difficulty of individual conscientious objection to stem the effects of evil law—the Nazis' manipulation of the rhetoric of legality, and the German legal profession's entire capitulation to the system so put in place—and concluded that positivism contributed to the horrors of that time. 

This is Hart's formulation of the problem: that Radbruch didn't trust people enough (based on more or less an exceptional circumstance), and so got the law into dubious tangles like disguised retrospective legislation. Moreover, he reasserts that moral values are not so singular and harmonious. They might conflict in particular situations or people may hold entirely opposing ideas of what is moral. Things are not as simply good or evil as the Nazi circumstance would have us believe.

 Fuller, on the other hand, makes the point that Hart's clear distinction between 'law' and 'good law', or (that which it ensures) 'order' and 'good order', is not quite tenable. For one thing, 'order' in itself is not free from a 'moral element': meaning that the idea of what constitutes an orderly co-habitation in society derives validity and sustenance from moral principles. For instance, the success of a system of rules may be based in part on coercion, but more importantly is based on 'ethics' in the other sense: of working with discipline, of showing care with consistency, and so on. The other difficulty is where to draw the line between what is essential and what is changeable in the law, or if you prefer, how much change is a change of degree, and how much is a change in kind. In such a situation, positivism does not help: it says either agree or disobey, which is a static sort of idea, to say the least.

From this comes his disagreement with Hart: this polarity, in his words, 'never gives any coherent meaning to the moral obligation of fidelity to law'. In a sense, in seeking to uphold the inviolability of law, this view robs it of substance. Why is fidelity to law so important? Is it pretending to the status of a physical law, while at the same time requiring our consent for its continued operation? Fuller says no; it's a 'collaborative human achievement in need of constant renewal'.

For that professor in Berlin—now a professor of law, and not of history—the question would be how to say no under the condition of positivism, or else how to collaborate to produce better law without himself being contaminated, or endorsing the wrong that went on in the name of law in the meanwhile. Captain von Trapp ran away, but the armed forces never have as constructive a role to play, and especially in a time of war their powers are rarely vis-a-vis the home country, and much less freely exercised. When the soldiers come to take him—or me, in my narration—how shall I decide? Perhaps it is easier to decide and act well upon it, than to be certain that the action was the righter one.

A single day at Jantar Mantar Road. 4th March 2013.

The protest by the National Fishworkers Forum

The Pension Parishad dharna

The protest against the hanging of Afzal Guru

The protest demanding a 'Gorkhaland'

The protest against anti-Bahujan policies of the GoI

The single-member protest against a specific rape

The fast against sex crimes in general

A protest against land-grab in Bangalore

 and a protest by the main Opposition party which wound up before I arrived there. 

Each yelling their demands, plus gratis abuse of the government. Though it is the final resort, and its efficacy questionable to say the least, we have at least this final freedom. It gives me hope.

distance

"the fact that the general elections are still more than a year away means the Finance Minister has had to squarely balance the competing claims of economics and politics" —The Hindu, day after the Union Budget 2013-14 was presented.

Presumably they mean 'vote banks' versus business people. But which is economics and which politics? Meaning that the point economic sociologists have been arguing for some time—that economics distances the government from its people, turning them into 'consumption', 'production' and so on—is only reinforced by a democratic politics that distances them as 'vote banks'. 

The increasing disparity in incomes but also in concerns is one formulation of these troubles. When I told my mother of the movement to implement a two-thousand rupee universal old age pension, especially for NREGS workers, she immediately disagreed with it. Her view was that tax money should not be spent on giving dole in any form. Moreover, she doubted the work actually done by those registered with this scheme that merited giving pension 'when people actually doing work are not getting it'. Disagreeable as this seems to people who do not pay the stipulated thirty-three percent or so of their income to the government, as well as to those whose concerns are wider for other reasons, it must be dealt with.
My mother readily acceded to my protestations and counter-assertions about the need for pensions for old people, particularly those engaged in hard labour and in the unorganized sector, the difficulties inherent in the current pensions system—both in terms of insufficient amounts and difficult criteria. I didn't tell her about lowering the age to 55 years for men and 50 for women, while ensuring continued employment without discrimination arising from this assured income. I forgot. But chances are she would not, however deserving, have appreciated that pensions should accrue without the same conditions that the organized sector accepts as universal for it. I'm not certain of my own views on this last in any case.

To overcome these concerns, this sense of what is fair and unfair, appealing to individual interest is never going to work. The only reason parents are fine about them making money and their children spending it willy-nilly (when they are) is that they see their children as an extension of themselves, as an expression of a group-self-interest. Terms like 'vote bank' used on english news media about those who don't watch it—in effect— creates rifts in a population that is already internally distanced in material circumstances. We need a lot more national sentiment of the substantial and non-military variety—cultural and social particularly. 'National shame', 'national pride', etc about unemployment figures, agrarian distress, labour laws, public health and sanitation, and the rest. But how do we produce this?