The answer is NEITHER. Before doing something we should consider whether there is any point doing it at this time, and, what potential costs and benefits might be associated with the process.
Sen, it seems to me, has not asked himself the right question or, at any rate, not addressed it in his recent book.
This contradicts his own stated preference for focusing on outcomes.
Sen makes great play on the distinction in Sanskrit between Nyaya and Niti, speculating on how Kautilya's Niti might have laid the foundations for Ashoka's Nyaya by drawing, perhaps, upon the scholarly work of T.H. White who described a similar relationship between Merlin's Magic and Arthur's Excalibur in the Walt Disney Classic 'the Sword in the Stone'.
Moore foolishly yet, Sen also mentions the Gita- a sacred text for Hindus and thus a work we actually do know quite a lot about- unlike what actually happened in Ashoka's reign.
The word Niti, in Sanskrit and Hindi, refers to ethical conduct or policy. Kutniti means a crooked type of conduct or policy- like that of Kautilya.
An example of Kautilya's kutniti is the manner in which he recruited his successor. He gets a dhobi (washerman) to annoy the learned Pundit to such an extent that the fellow loses his temper and kills the dhobi. Kautilya then gives the Pundit a choice- serve the state or pay the penalty for man-slaughter. The Pundit revenges himself by framing Kautilya and having him killed. Sen's equation of Kautilya with Niti, not kutniti, is utterly mad.
What of Ashoka's Nyaya? The guy was real pissed off when he heard that some Jain monks were worshiping the Buddha by making out he was actually one of their own rubbishy Tirthankaras. So Ashoka offered a bounty for decapitating Jain sadhus. One morning, inspecting the day's harvest of heads, he found that his own special chum had been killed by mistake. Ashoka then ended the killing of Jain monks, or, at any rate, stopped paying for it from the Privy Purse.This was actually a good thing- Governments should leave the provision of decapitation for the Jain monastic community to the market- and Sen, the economist is right to commend Ashoka's Nyaya. However, since Sen is now also regarded as a Philosopher- and moreover one with an Indian surname and thus a 'native informant'- his silliness is merely par for the course.
Underlying the notion of Niti (that is, ethical principles as guiding one's conduct) is that of Dharma (Duty/ Righteousness/Religion) which considers the nexus of obligations and entitlements that connects individuals and encompasses the wider world. Dharma, which the Greeks translated as 'eusebia'- i.e. 'pietas- is founded upon Vrta- the vow or vocation which binds an individual's conduct. The concepts of vyavahara and acara are relevant here. These are the procedural rules observance of which is incumbent upon an individual belonging to a wider collective. Where all collectives in a given Society observe rules which are mutually compatible, that Society is considered Dharmic and a reflection of the Cosmic Order. However, if all possessed Dharma, i.e. had internalised that upon which all is based, then no actual judging or Judges would be needed as no transgression could arise.
Nyaya refers to Justice, in the sense that Quine pointed out, of being a stasis or equilibrium rather than an active process. To say this is not nyaya is to say this is unjust and contravenes either the law or the cosmic order. The Nyaya School of philosophy is concerned with Logic and Epistemology in Hinduism. In Amartya Sen's native Bengal, a 'navya nyaya' School developed which had could have provided Hinduism with a rationalistic, or 'natural', theory of jurisprudence. Interestingly, Sir William Jones, the Judge who founded modern Indo-European philology, learned Sanskrit from Pundits of this school. Moreover, some Pundits of this School embraced the English scheme of Law and, a little later, Raja Ram Mohan Roy, a Unitarian polemicist, eagerly adopted the Utilitarian theory of Jeremy Bentham. However, India as a whole did not adopt the notion of natural law. Utilitarianism remained a dogma of the India Office but had no place in the Justice system. Rather legal concepts- e.g. property- continued to be the thought of as 'samskaras'- i.e conventional and virtual, thus empirical, rather than real or substantive, and therefore purely deductive or a priori.
In Sen's view, underlying the notion of Nyaya is the older concept of Rta- the Cosmic Order- which was not conceived of as eternal and unchanging. Rather Rta went through a sort of evolutionary cycle. The emergence of matsyanyaya- by which Sen means the situation where the big fish eat the smaller fish- is evidence that the Cosmic cycle is in a phase of decline and dissolution. As an empirical matter, the Law would become more restrictive in this phase. Harsh vows or more restrictive vocational observances-'Vrtas'- would become obligatory for wider sections of Society because of the adverse tide of events.
Niti and Nyaya are linked, as are Dharma and Rta, by the theory of karma- or re-birth. Ethical policy or behaviour, good niti, upholds Dharma and enables Rta to right itself after the total dissolution at the end of the retrograde time cycle. The pay-off for the individual is that the good karma thus generated grants a better future birth- or, indeed, total salvation.
It should be noted that while Niti and Nyaya are words that can be used outside a theistic or soteriological context, they then lose any ethical meaning. Niti might mean a crafty policy or an individual religious observance expected to bring personal salvation without any benefit being provided for the wider community.
Nyaya, outside a Theistic context, would mean the principles or laws that operate in the actual world according to our empirical experience of it. Thus 'the enemy of your enemy is your friend' would be a statement of Niti and 'Might is Right' is a Nyaya maxim.
Sen, however, has decided to use the terms Nyaya and Niti in a wholly different way so as to bring out what he believes to be a fundamental difference between two rival approaches to a theory of Justice.
The question arises whether the distinction Sen makes is in fact useful, or indeed, meaningful.
Let us make an analogy with my own proposed distinction between the terms 'fat bastard' and 'corpulent swine'. This is a highly meaningful distinction for me personally- as I am generally referred to as 'Iyer, the fat bastard' to distinguish me from another gentleman of the same name whom, it is my fervent wish, may be termed 'Iyer, the corpulent swine'. You will readily grant, if I am not mistaken, that there is a certain amount of affectionate raillery, not to speak of covert admiration, in the nickname 'fat bastard' whereas the epithet 'corpulent swine' vividly conveys the coprophagous grossness of that other fat Iyer bastard to whom I am compelled to refer.
In this case, clearly, the distinction I have introduced is of the highest utility and could become a topic of the most fertile philosophical investigation and literary exposition.
Is the same true of Sen's Nyaya/Niti distinction?
Sen says that Niti is about deciding what the ideally just situation ought to be and then devising institutions to bring it about. Thus, Rawlsian Justice as Fairness would be 'Niti'.
Except it wouldn't. Not in Sanskrit. Why? Policy and ethical conduct can not begin from a position of disembodied omniscience, behind the Rawlsian veil of ignorance, because- by a fundamental axiom of Dharmic thought- only the fully liberated Sage possesses that. But such Sages give up worldly life, they cease to interact with other beings under the rubric of reciprocal obligation and entitlement- i.e. omniscience can not give rise to a contractarian theory.
Niti is relevant to us only because our existing situation is characterised by problems regarding uncertainty, information asymmetry, preference revelation and so on. Indeed, as in the story of Moses and Khizr, who meet at the barzakh between 2 seas, so too in the Gita, we see that the omniscient person will always violate deontological, rule based, Niti since it is no longer a meaningful concept for a person free of all informational and instrumental constraints.
Why did Sen decide to call Niti the stuff he wasn't doing? Well, Niti is linked in Indian languages to stuff like Morality and Rules of Conduct and 'high thinking plain living' and so on. In other words, Niti is part of Bourgeois pi-jaw and Hegelian sittlichkeit and other unfashionable stuff like Institution building for better Governance through things like transparency, cracking down on corruption and rent seeking, decentralization of decision making (subsidiarity), equity audits and other such stuff on which countries like Cuba or West Bengal's Left Front regime score badly.
Nyaya on the other hand was more general, more abstract, and hence, in his eyes, more prestigious. Sen decided that Nyaya meant operating on the actual outcome matrix in time t which he assumed could be known and changed at that very time. Sadly, this is nonsense. If Nyaya is concerned with the outcome matrix at time t, then it can only be known, that too very imperfectly in time t+x and policy instruments can be implemented only at time t+x+y with the results only coming through with a further unpredictable, hysteresis heavy, time lag.
Moreover any diagnostic instrumentalized for policy purposes at time t+x would, probably, for that very reason, have lost its effectiveness by Goodhart's law. In other words the more we seek to act upon the outcome matrix the less reliable information we will have, ceteris paribus, about it in every future time period.
In the Indian context, if one instrumentalizes Caste as a proxy for Social exclusion, then freezing up the economy with controls and irrational fiscal incentives becomes attractive because though ruining the country, and negatively impacting social mobility, it nevertheless makes a substantive (Sen would say Nyaya) rather than procedural approach more attractive. In other words, first freeze the social geography by disabling the engines of mobility- viz. education, emigration and enterprise- and you have an excuse for any arbitrary 'direct' action which simply bypasses private and institutional notions of morality and just proceeding.
However, the Indian experience is that you can't freeze Social Geography. Even if you ensure that the Govt. Schools are crap, you can't stop working class folk (irrespective of caste or religion) from paying money to private schools to get their kids a shot at an education.
In other words, Nyaya in Sen's formulation is something that can't be known, can't be action guiding in a predictable or reliable manner, and thus is utterly meaningless for any practical purpose. Yet Sen wants his 'Nyaya' coz it's a way of smuggling interpersonal comparisons of Utility- not just Utility but also other empty words like Freedom and Development and Empowerment, Exclusion, degree of Aryan blood (or is it Democracy?) and so on back on the agenda. How could he get away with it? Well, it was the 70's, everybody was discovering their inner nigger- Sen, it turned out was a black man, and- as Gayatri Spivak explains 'strategic essentialism' is okay coz gesture politics is way cooler and safer for our students than actual politics and, in any case, Edward Said had already pointed out that it was irresponsible to teach 'Gulliver's travels' to Post Grads at Ivy League without issuing repeated H&S warnings that Jonathan Swift WAS NOT RECOMMENDING EATING YOUR OWN SHIT- YOU WILL NOT GET A HIGHER GRADE BY EATING YOUR OWN SHIT ON THIS COURSE!- rather Swift was doing something called 'irony' which, ironically, meant pretty much the same thing as like irony? Y'know? Except, like, aint it ironic that people who overuse the word irony like totally don't get it, right?
Anyway, this particular silliness of Sen's worked out well for him because interpersonal comparisons of Utility, Freedom, Development, Exclusion etc, etc, is what people with power do- it's what power is about. Guys from head office are constantly inventing some new performance measure which will screw things up in some novel way. Why? Rossi's 'metallic laws' make a startling prediction.
The Iron Law of Evaluation: The expected value of any net impact assessment of any large scale social program is zero.
The Iron Law arises from the experience that few impact assessments of large scale social programs have found that the programs in question had any net impact. The law also means that, based on the evaluation efforts of the last twenty years, the best a priori estimate of the net impact assessment of any program is zero, i.e., that the program will have no effect.
However, the business of designing performance indexes and holding seminars to thrash out methodological issues is profitable and empowering to academics enabling them to interface with big bureaucrats and get to utter sound-bites on T.V.
Since Niti would suggest ditching the whole project as corrupt and a waste of resources, Nyaya has to be invoked to continue with the practice- which in any case could be justified as keeping the serf-class of Grad Students busy building pyramids for the great Professor's sarcophagous and thus in a permanent state of deferential stupor.
Thus, so long as Power is inequitably distributed within the Academy, interpersonal comparisons are going to be big business within those constipated bowels. Human Development Indexes- apart from cooking the books to prove silly things like Cuba is better off than Florida and Bangladesh verily is Heaven- function like evaluative methods in State funded Education- i.e. they are manipulable in highly pathological ways w.r.t outcomes, not to mention being resource costly and breeding cynicism and careerism amongst those caught up in its rigmarole.
How about keeping Sen's 'Nyaya' around for 'thought experiments'? Well, Einstein's gedanken showed how stuff like Absolute Space and Time or hidden variables and so on actually fucked up scientific thinking. It is actually harmful to a Research Program, to retain a word- i.e a variable- to point to something that we can't know or control except for some purpose purely polemical or idiotically ideological. Sen has spoken of 'second order' public goods- i.e. the campaign for the provision of public goods. Notice he isn't talking about alethic arguments for Public goods coz Truth is itself a Public Good. Second order Public Goods must be based on the propagation of lies- emotive propaganda. However, subsidizing second order public goods, after the dead weight loss has been considered, is more likely to lead to less public good provision as the former crowd out the latter. The second order public good is like Sen's 'meta-preference' against whatever you are addicted to. It might lead (if there is no alethic, utilitarian, and therefore first order preference, that has negative cross elasticity of demand with the addictive product or range of products) to more consumption of demerit, addictive shite. In other words, the State could spend all its resources organising sit down strikes to demand public goods- with the result that no public goods at all are produced.
In any case, Sen ignores the fact that his Nyaya is (in the linguistic sense) extensional not intensional- hence public discourse faces a halting problem and is doomed to remain phatic rather than meaningful. Sen also ignores the Jorgenson's dilemma aspect (i.e. how licit is it to treat deontic statements as if they are alethic?) which by itself generates a lot of aporias. In plain Hindustani- ethics is 'insha' not 'khabar'.
The point about Niti is that by respecting the informational and instrumental constraints of actual agents, Niti-talk can alter your Ethos positively and, in that sense, is Ethical. Not so Nyaya nonsense. Rawlsian Justice as fairness is a pedagogic exercise of Theological derivation designed to foster 'anukrosha' or empathy. Given Rawls's background and the location of his bully pulpit- nothing else was meant w.r.t Sen 'Nyaya'.
Sen hasn't taken on board, but must even at his advanced age retain at least a vestigial awareness of, a lot of Behavioral Ec stuff & Cog Sci stuff which rigorously fuck in the ass all his unstated assumptions seven times till Sunday. The fact is Emotions are now thought of as 'Darwinian algorithms of the mind' for both individual and collective decision making. A theory of Social Choice which ignores the signalling, coordinating, and strategic functions of Sen-tentious non-alethic, value laden, second order, emotive rhetoric belongs in the crapper.
When Narendra Modi says 'I incentivize consensus in Village Panchayat elections by giving a bonus to non-contested councils'- a case could be made for Modi as reflecting best practice in current Voting theory. When Sen speaks- fucked are we all and fucked must we remain.
Ultimately, the problem with people like Sen, who appear to be but aren't actually, banging the drum of Justice and Human Rights, is that they have added uncertainty and all sorts of perverse incentives and signal extraction problems to Public Policy and so there's a good case to institute a moratorium, if not a roll back, on that shite.
Sen tells us we Indians must focus less on Niti- though that is something we can do something about and ourselves benefit by doing- and more on Nyaya- which we can do nothing about.
Why? Well, Sen himself decided not to do asymmetry of information, preference revelation, auction design, mathematical politics, behavioural Ec, and the other very fruitful avenues of research Rand Corp Game theorists had opened up. He was sticking with an old fashioned, Benthamite, type of Social Choice theory where an omniscient Central Planner can frictionlessly re-allocate resources and make interpersonal comparisons of utility, and so on. This was not, it turned out, a fruitful for Economics or Psychology or anything at all but it fitted well with a type of Moral Philosophy or Political Philosophy-without-the-Politics which certain other star fish academics, equally stranded on the beach by pi-jaw's retreating tide, were now practicing.
Oh! and the other thing is, it looked radical, maybe even Communist, without being any such thing.
In other words, Sen had opened a way for 'eel wriggling' bureaucrats and anti-Poverty parasites to make vacuous statements without every committing themselves to things like properly specified and monitorable Human Rights while still appearing to be on the side of the poor.
Thus, surprise! surprise!, Sen's Nyaya turns out to be kutniti- the corrupt international diplomacy of the Development and Anti-Poverty parasites.
Is Sen's position something to do with the fact he's Indian- that too an upper class Hindu?
Like- is it an Indian thing? Maybe its in the Bhagvad Gita or something?
Here's what Sen said about the Gita-
Question: In your new book, The Idea of Justice, you speak a lot about the difference between niti (institutional justice) and nyaya (realised justice). Do you think we have too much niti in India and too little nyaya?What actually happens in the Gita? Well, you have a piquant situation where a blind King is being told what Krishna said to Arjuna, on the battlefield, by his minstrel, Sanjaya, who has been granted clairvoyant powers.
Prof Amrtya Sen: The short answer is yes. Niti has huge appeal and this applies to the great as well as to the non-great. In the Bhagavad Gita, Arjuna’s position has much to commend it. I am not saying he should not have fought the war, but his doubts were not dismissable, in the way that Krishna dismissed them. Krishna is clearly a niti person.
How peculiar it is that someone as non-violent as Gandhiji, who was very inspired by the Gita, was on the side of Krishna, who is making Arjuna fight a war and kill people, when Arjuna is saying maybe I shouldn’t kill! The Mahabharata ends with success, but also with grief, desolation, with women weeping for their lost men and funeral pyres burning in unison.
Now both Arjuna and Krishna have powers of second sight (The Mbh delights in this sort of symmetry). Arjuna had been granted chaksuchi vidya by a demi-god he'd defeated. Thus he knew that he will end up killing his beloved Guru and Grandsire.
Lord Krishna (Devakiputra in the Chandogya Upanishad) had an even higher type of second sight and, in any case was the omniscient, all action causing, Supreme Godhead.
Now Krishna, as charioteer- bound by Suta dharma so to speak- had the job of raising Arjuna's spirits. An ordinary bloke would have said 'Oy, Arjun mate, don't you know both Guru Drona and Grand Sire Bhishma have received the boon that they can not be killed and that death will come to them only at the moment that they themselves will and decide? So long as the 2 of them are there, they will defend your cousins. So your only job is to keep them busy- preventing them hurting your people- until everybody gets sick and tired of the stalemate and your cousin is forced to settle.'
Now Krishna did know what would happen at the battlefield. He had arranged it all himself. This is the delightfully dramatic aspect of his incarnation. His shtick was to pretend to be like a cowboy, or a naughty baby, or a charioteer, or whatever, when actually he was the Lord of all driven and motivated by perfect compassion which is the one true, indefeasible, form of Absolute Justice. Precisely, because he was omniscient, Niti had no meaning at all for him. I don't need to observe the rules of double entry book keeping to calculate how much money is in my Bank Account coz I have the password and can get my balance immediately. If you have perfect information you can go for substantive rather than procedural rationality- i.e. you needn't bother with search procedures and institution design and other stuff that looks deontic (but isn't so necessarily. While solving a maths problem, we may 'follow a rule'- i.e. an algorithm not because we are duty bound to do so but coz we have some empirical evidence that this yields a result close to what we desire).
Sen interprets Krishna's advise 'do your duty' to be deontological, and therefore Niti based, but totally fails to notice that
1) what one's duty is remains an unknown. The Mbh is highly symmetric (as it must be to conserve karma and dharma- by Noether's theorem- unless it is actually just a dissipative midden of mindless accretions and interpolations). To understand the Gita we must look at the symmetrically, equal but opposite, situation where Arjuna wants to kill his elder bro but Lord Krishna stops him saying the Law is very subtle and pretty much impossible to grasp. The Gita, in literary terms, represents an epoche. It is dramatic, not didactic.
2) Krishna, as the Supreme Godhead, is revealing himself to be the puppet-master here- i.e everything is Outcome based. The game has been fixed in advance. There is no Niti here at all. The only question is whether Arjun will turn against his pal when he discovers he is actually God Almighty and responsible for this whole shit-storm. There is a good reason why Arjun does not turn against Krishna. It is that in disclosing his Cosmic Form- Krishna is, in effect, killing himself, for (as he later reveals) to disclose your own great merits is to kill yourself just as to insult another is verily to have murdered him. In fact, the reader's Bhakti (emotive devotionalism) is increased when we see Krishna's apotheosis is at a tragic cost to himself.
Since no human being can be involved in worldly affairs while having full knowledge of Nyaya- i.e. the intensional Law- the formula to work out what will happen at time t+1 if you change x at time t- it follows that we have nothing but Niti- character building, institution building, but experimentation and observation are also part of that- like Yuddhishtra having to learn Game theory.
Sen is simply ignorant of the Gita. His comments are jejune. But, perhaps, one should envy him his puerility.
In the Mahabharata, we find that the Just King- Yudhishtra- must learn probabilistic game theory- this suggests that Niti does not specify ideal states but evolutionarily stable strategies as grounding its praxis. Yudhishtra himself is characterized by empathy, compassion and readiness to take the smaller share so as to get a positive sum game off the ground. However, if ther is no gradient of altruism then the game crashes- 'pehle aap, pehle aap mein gaadhi choot gaya'- In 'after you' 'no, after you," both missed the train.
The one ethical theory repeated throughout the Mahabarata is that 'The tigers can not exist without the forest. The forest can not exist without the tigers. The Kauravas and the Pandavas (the warring cousins) are the Tigers and the Forest.' There is no suggestion that Tigers are better than Forest or vice versa or, indeed, that Pandavas are better than Kauravas. They are interdependent not mutually antagonistic in their quiddity.
What happens at Kurukshetra- what the Gita is about- is a parallel to what happens to the Khandava forest. One holocaust makes the other necessary. This is Nyaya as a sort of Celestial book-keeping which makes zero accommodation with human intentionality & cognitive capacity, while Niti is but the hilarious prattle of the little fledglings who talk because they can not fly.
Though Mbh conserves karma and dharma- it acknowledges that both from the ultimate point of view are empty. This follows when we consider that Vyasa has 4 sons- Pandu, a great conqueror but one governed by the RAJSIC (passionate, thymotic) Guna (quality). Blind Dhritirashtra who is TAMSIC (inertia, darkness, passive attachment) and fosters the MANYU (dark anger born from envy) of his son Duryodhana. Vidura who is SATVIC (Truth seeking, just and self controlled) and is the champion of Niti- but ultimately futile for all that. Finally there is Suka who goes beyond Vyasa becoming one with the Universe because he has transcended the Gunas.
The message for ordinary people who are moved to a feeling of loving devotion by seeing how Lord Krishna sacrifices himself in the Gita is that this change of heart by itself cancels karma and dharma. You no longer feel 'I am born from such and such family, and have such and such physical and mental characterisitics. This is a binding constraint on me. I can not do otherwise than follow the path already marked out. What is it to me how people in superior or inferior stations conduct themselves? Mine is a lonely furrow from which it is profitless to lift my eyes."
If the MhB were a completely unique Scripture, having no similarity or connection to other Holy Books (as interpreted by Spiritual savants) then, perhaps, we should only pay it attention if the people of that book distinguish themselves in War or Wealth accumulation or Scientific achievement. However, reading the MhB gives an insight into the true glory of other Scriptures and systems of thought and this is the correct proof of its relevance today.
In the Bible, you may consider the story of the slaying of Zimri and Kosbi- this is an example of halachah vein morin kein- the law such that if it is known, disallows that very action it otherwise makes mandatory. Since all laws are broken when one law is broken we see that the relationship between Niti and Nyaya is such that the revelation of Nyaya nullifies Niti till, thus becoming the cause of its own death, a second cosmic cycle (in this case, wave of ibbur) can begin.
Subtle ideas. Subtle not Sen-tentious.
But, fuck it, the guy is just an academic. Give him a break already. At least he didn't start a hedge fund which lost billions of dollars of other people's money. And, bottom line, the guy responded to his Nobel prize with great humility and patriotism- wishing his achievement to reflect as much glory as possible on both Bangladesh and India. But this shows Sen has good Niti- he is a principled person. The Nyaya outcome (to use his terminology one last time), however, is bad because he has fed the outrageous complacency of the Indglish speaking public w.r.t stuff like
1) the notion that Famines can't happen in a democracy. East Bengal experienced two big famines after two different transitions to Democratically elected Governments. Sen was a child during the first famine. But he was an academic during the second.
2) Bengal and Kerala weren't actually fucking up the life-chances of their hugely talented people but, in some mysterious manner, superior to America coz the life expectancy of a black man in a crack house in N.Y is lower than a black man not in a crack house in East Bengal.
3) Indians don't need to study their own culture in their own languages- coz who needs Hindutva? Divisions is Society arising from Caste, Gender, Region and so on will just melt away- or have already done so. So you don't need to bring people together on the basis that God alone is the superior, the knower, the guide. Thus the Gita really has no value except to show how Lord Krishna was an utter rogue and Indians are completely stupid for still letting themselves be redeemed by His all compassionating, all encompassing, Activity.