Tuesday, 27 July 2010

Nyaya, niti and Amartya Sen's Riti

Vivek Iyer

In the old days, Indians like Mahatma Gandhi would come to England to qualify as barristers so as to return home and get rich by fleecing their clients.

As part of their prescribed course of studies, they would hear with amusement of the horror which the general population evinced at the prospect of an 'Eyre'- i.e. the visit of a bench of Judges empowered to inquire into any malpractice or act of omission or commission since the last such visit. Embodied in the ‘Eyre’ was the notion that Justice was something ‘top-down’ and ‘substantive’- i.e. based on an examination of all existing arrangements and the punishment and rectification of every deviation from what the Judges considered to be Righteous. The ‘Eyre’ was not concerned with procedures. It could act arbitrarily and proceed in any manner it pleased.

Was the Eyre welcomed? Did it help the poor, the vulnerable, the marginalized?

In Cornwall, the Eyre of 1233 caused the great mass of the population to flee into the woods. Again and again, the people would petition their King not to proclaim a General Eyre. Justice would impoverish them and tear asunder every affectionate or social bond between individuals because each party would fear that the other might shift the blame for some culpa levis onto their own shoulders.

Justice, though more than paying for itself by detecting irregularities and levying fines, was not desirable for a prosperous and harmonious Society. On the contrary, the people were prepared to pay the King to be excused a General Eyre which would kill the golden goose of prosperity by too closely examining how it came to thrive.

As a matter of Public Policy, it was better if there were no theory or practice of Justice save as something supplied in response to a demand arising out of crimes or torts suffered by individuals. In return for Justice being turned into a service such as the market might provide- i.e. one which was demand driven, and where the ordinary people serving on the jury made determinations of fact- the people were prepared to pay taxes agreed on by their own Parliamentary representatives.

This story about the evolution of the English Judicial system had a familiar ring to Indians from small towns- like Mahatma Gandhi's own Porbandar or Rajkot. They knew very well that if the Prince develops a passion for Justice, the prosperity of his demense would perish. That is why they showed little enthusiasm for reforming the, demand driven, Indian judicial system- or even any great passion for Constitutional Law, which, prior to Independence, was left to 'country bottled' vakils- like Sapru- or even obscure 'Eighth Standard Pass', direct entry clerks like V.P Menon.

Sadly, after Independence, we had a new type of Indian student being sent to England. Instead of the Law, they studied Economics before returning to impoverish their own country without enriching themselves.

Amartya Sen was one such student who boomeranged back to take high positions in the very Colleges and Universities which had misled his ilk.

In medieval India, there was a style of literary composition known as 'riti' which drew upon, or itself illustrated, a 'ritigranth' or manual of composition. Such compositions were 'second order'- i.e. derivative of classical models- and far removed from nature or, indeed, reality.

It is tempting to speak of Sen's oeuvre as an exercise in 'riti'.

Consider his derivative work, 'An Idea of Justice' whose 'ritigranth' is Rawl's 'A theory of Justice'.

Before doing so, however, let us ask ourselves a simple question- In formulating a theory of Justice should we begin by deciding what, ideally, Justice would imply or else decide how, in practice, Society could be made more just?

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. After all, if we have a prescriptive theory then, it would remain the case, that to put it into practice would involve a periodic 'General Eyre'- which would be fatal to the commonweal. It would kill the golden goose. That's why English Law took the path of legal fictions so as to become a pure Service industry which, currently, earns a substantial 'invisible' surplus for the U.K.

Sen, writing his big book, never pauses to ask himself whether his project is worthwhile.
This contradicts his own stated preference for focusing on outcomes.

Consider this extract from Sen's 'The Country of First Boys'- a book whose great utility is that reading it cures insomnia.

In examining the demands of social justice in India, it is important to distinguish between an arrangement-focused view of justice, on the one hand, and a realisation-focused understanding of justice, on the other.

A guy who makes a living selling widgets should examine the demand for widgets- who buys them and why. He should also know something about the supply of widgets- why there may be a sudden shortage of the thing or why widgets might become a 'repugnancy market' or become subject to price controls or rationing or whatever.

But nobody needs to distinguish between an 'arrangement focused view' of widgets and a 'realisation-focused understanding' of widgets. This is empty verbiage. Either 'arrangement focused' means 'determinants of supply' or it means nothing. 'Realisation-focused' means determinants of demand or it is sheer bullshit.

The market for Justice, a Service, is a little different from the market for widgets, a commodity.

Justice should be seen as just in its procedures and just in its outcomes. It should not be arbitrary nor subject to interference by Ideologues. It is highly mischievous to suggest otherwise.

Sometimes justice is conceptualised in terms of certain organisational arrangements – some institutions, some regulations, some behavioural rules – the active presence of which indicates that justice is being done. The question to ask here is whether the demands of justice must be only about getting the institutions and rules right. 

This is a foolish question. Getting the rules set right only matters if the outcomes are what is desired.

Consider the following scenario- I go to a South Indian restaurant and order a masala dosa. The waiter chops off my arms. I complain that I have not received my dosa. Moreover, I did not want my arms to be chopped off. The waiter chops off my legs. I roll myself out of the restaurant to the nearest hospital. The restaurant sues me for not paying my bill. Their lawyers claim that their 'intentions and rules' were correct. Chopping off arms and legs is an effective way of supplying dosas. Do my lawyers really need to prove that this is not the case? Sen would say 'yes. It is indeed important to distinguish between an arrangement-focused approach to providing South Indian food and a realization focused understanding of the same. It may be that the Restaurant did not pay enough attention to promoting gender equality in chopping off my arms and legs. On the other hand, my refusal to pay my bill may reflect homophobia or racial discrimination. This is a complicated problem and we need to properly examine all relevant factors- including the possible impact on the Higher Education of the Nicaraguan horcrux of my neighbor's cat- so as to properly respond to the 'demands of justice'. Indeed, we must compute all possible future states of Society. What if chopping off my arms and legs resulted in my not voting for Modi or Trump or Brexit or some similar sort of moral catastrophe?

  Proceeding beyond them, should we not also have to examine what does emerge in the society, including the kind of lives that people can actually lead, given the institutions and rules and also other influences? 
No Dr. Sen. We should not do anything so stupid. This is a recipe for endless delay and increasingly stupid and hysterical discourse. A South Indian Restaurants 'intentions and rules' don't matter. All that matters is that it provide tasty masala dosa and not chop your arms or legs off. If this is not compatible with your 'Idea of Justice', it is because you have shit for brains.

Human beings and, more recently, human institutions, have evolved over hundreds of thousands of years to fully internalise the hiatus between means and ends such that there is an almost instinctive 'ex ungue leonem' test we can apply. Just as, seeing the claw of the lion, we intuit the presence of a lion, so to do we understand that Education can only be produced in an Educated manner, Culture in a Cultured manner, and Justice in a fair and just manner.

The Judiciary's procedures- which to increase its own efficacy need to be transparent and 'common knowledge'- do all relevant examining in a protocol bound manner such that the outcomes are what is Socially desirable. But 'relevant examining' is a movable feast. It evolves as Society evolves. So long as 'Voice, Loyalty' & most importantly 'Exit' obtains, we have reason to believe that the Legal system will adapt and 'pay for itself'.

Thus, a 'Law & Economics' approach is warranted because, as in Management theory, Judicial processes are internally evaluated with respect to outcomes. The Coasian enterprise internalizes associated externalities. The legal system can do the same. It is a matter of common sense that an organisation which isn't doing what is being paid to should be deprived of revenue till it mends its ways. The same is true of a profession or vocation which ceases to be socially utile.

Sen subscribes to a different view- he believes that the Law is a Dickensian monstrosity which evolved along the lines predicted by Franz Kafka and Lewis Caroll. In this context, it seems reasonable to plead for a little sanity, some basic humanity, on the part of Judges and Lawyers. 

The basic argument for a realisation-focused understanding, for which I would argue, is that justice cannot be divorced from the actual world that emerges. 
OMG! Talk of the bleeding obvious! In which country is a system of Justice, paid for out of taxes, which is 'divorced from the actual world'? No doubt, the Indian legal system is dysfunctional in several respects, but it possesses the tools to correct itself. There is no need for a Philosopher to stick his nose where it does not belong.
  Of course, institutions and rules are very important in influencing what happens, and also they are part and parcel of the actual world as well, but the realised actuality goes well beyond the organizational picture.
Nonsense! The organizational picture is either dysfunctional, in which case it should be denied money, or it is focused wholly on 'realised actuality'. Why does Sen think organisations can flourish while being wholly divorced from the world? Justice isn't a worthless branch of Academia.

This is a critically important distinction in the history of theories of justice, including those in Europe and the West.
It is not critically important. It is very very silly. Why pretend Courts operate like something out of Alice in Wonderland and that taxpayers are too stupid to do anything about it? But I begin with a demarcation that has a clear role in Indian intellectual debates, going back to the Sanskrit literature on the subject. Two distinct words – niti and nyaya – both of which stand for justice in classical Sanskrit, actually help us to differentiate between these two separate concentrations. This is sheer nonsense. Niti means 'Policy'. Sen's first paper was published by a Journal called 'Arthaniti' which means 'Economic Policy'. Nyaya means Justice. A Court is called a 'Nyayalay'- 'Abode of Justice'- just as a School is called a 'Vidyalaya'- 'Abode of Knowledge.

Perhaps, Sen confused the word 'Niyam' (Rule, Observance) with Niti. In several Indian languages there is are expressions to the effect that 'Nyaya (Justice) is greater than Niyam (Rule)'- in other words you can break the rules to achieve Justice. But this is precisely the notion of 'equitable exception'. In Hindu law, Niyam is always defeasible. It presents no barrier to Justice though, no doubt, some casuistry may be involved. 
It is true, of course, that words such as niti and nyaya have been used in many different senses in different philosophical and legal discussions in ancient India, 

Sen is the first to confuse the two. A Minister may have a crooked or cunning policy or Niti. A Judge must always be upright though he is not absolutely bound to follow 'Niyam' (rule). However, human Justice is imperfect. After death, Yama will judge all. 

but there is still a basic distinction between the respective concentrations of niti and nyaya. 
There is a big difference between Public Policy- which is formulated by politicians and administrators- and Justice- which is the province of wholly independent Judges. Should Judges have 'niyams'? If the Judge is an arbitrator and neither party to the dispute has any objection, then- sure- the Judge can ignore rules and procedures. Also, if we are speaking of 'Judge Dredd'- i.e. a policeman who is also judge, jury and executioner- then too we may say observing 'niyam' is irrelevant. The only way to appeal a decision by such a judge is to kill him before he kills you. 

Among the principal uses of the term niti are organisational propriety and behavioural correctness. In contrast with niti, the term nyaya stands for a more comprehensive concept of realised justice. 

India rejected arbitrary 'Justice on horseback'. It is part of Democratic, Constitutional, 'Niti' to have an independent Judiciary which acts as a check on the Executive and the Legislature.

India's 'Planning Commission'- which at one time may have thought of itself as above the Law- is now known as 'Niti Aayog'- and is a Public Policy advisory body.
In that line of vision, the roles of institutions, rules, and organisation, important as they are, have to be assessed in the broader and more inclusive perspective of nyaya, which is inescapably linked with the world that actually emerges, not just the institutions or rules we happen to have…~~~

Institutions, rules and organizations are only important if they are wholly focused on outcomes. Acts of omission or commission on their part can be made justiciable by either the Legislature or 'due process' Judicial activism.

It is foolish to desire a return to the ideology of the Command Economy whereby idealogues could claim to be achieving 'Social Justice' by robbing and killing millions of innocent people.

A realisation-focused perspective makes it easy to see the importance of the prevention of manifest injustice in the world, rather than focusing on the search for perfection.

Does Sen really believe that there are Judges in some country who are 'focused on the search for perfection'? Which planet has he been living on?

If someone is the victim of a perceived injustice- e.g. breach of contract, tort or malfeasance- that person can approach the Court for redress. Public Policy is about improving access to the Legal system and doing 'incentive compatible' mechanism design.

Nobody except Sen thinks that Jurists sit around designing a perfect Judicial system for an ideal world.

As the example of matsyanyaya makes clear, the subject of justice is not merely about trying to achieve – or dreaming about achieving – some perfectly just society or social arrangements, but about preventing manifestly severe injustice (like avoiding the dreadful state of matsyanyaya).

Hobbesian Anarchy has nothing to do with Justice. It is suppressed by the strong arm of a Stationary Bandit who is himself above the Law. An evil Dictator may be better at eliminating street crime than an affluent Liberal Democracy.

The term ‘matsyanyaya’ means ‘the big fish eats the little fish’. In Sanskrit jurisprudence it has the meaning ‘the bigger reason swallows the smaller one’. Thus if I say you have wronged me by killing my Mother, the big reason for prosecuting you is that you are a murderer. I may also mention that you referred to me as fat which hurt my feelings. However, though this may explain my animosity against you and, perhaps, throw an unflattering light upon your character, it should be disregarded. It is not relevant to your being prosecuted for the crime of homicide.

The big factor preventing manifestly severe injustice is rigorous policing and harsh punishments. It may be that promoting ‘the idea of justice’ persuades, at the margin, some rapists and robbers to change their ways. But this would only have a small effect. Thus, the juristic principle of ‘matsyanyaya’ says that manifest injustice must be detected and punished with vigilance and severity. Gassing on about the ‘idea of Justice’ can be omitted. It is irrelevant.

Sen believes otherwise. He writes-

For example, when people agitated for the abolition of slavery in the eighteenth and nineteenth centuries, they were not labouring under the illusion that the abolition of slavery would make the world perfectly just. It was their claim, rather, that a society with slavery was totally unjust. That much, they argued, was absolutely clear, even if it might be very hard to identify (not to mention, achieve) a perfectly just society.
This is nonsense. Slavery was illegal in the limited monarchies of Western Europe. However, the slave trade flourished in the New World in a manner which Evangelicals and Quakers felt was un-Christian. Paradoxically, it was Christian resistance to the enslavement of Native Americans which contributed to the Transatlantic trade. Similarly, it was the abolition of Slavery in the West Indies which led to indentured servitude for thousands of poor Indian people.

Sen pretends that the abolitionists were interested in Justice. The truth is they were motivated by the Christian Religion and the Ethical Values of Quakers, Pietists and other 'Dissenters' who had risen up by their own thrift, honesty and enterprise. The Enlightenment was ambiguous about slavery because it was developing a 'scientific' theory of racism which rejected Religion's claim that all souls were created equal. Thus several Enlightenment thinkers thought that it was wrong to enslave White people but perfectly fine to enslave ‘for their own good’ people of my complexion.

Sen says-
Abolition of slavery was a matter of prevention of severe injustice and a significant advancement of justice; it was not meant to be an answer to the transcendental question of identifying a perfectly just society, or ideal social institutions.

It was meant to be an act of Christian virtue purging an irreligious practice which arose out of bestial greed.
It was on that basis that the anti-slavery agitation, with its diagnosis of intolerable injustice, saw the pursuit of that cause to be an overwhelming priority.
The Abolitionists were successful because they were respected for their Piety in an increasingly Religious Age. Slavery, by contrast, had been justified by some 'Enlightenment' philosophes as arising out of the natural inferiority of Black people. If Sen really believes that England was against ‘intolerable injustice’ when it abolished slavery in India in 1861, then he must also believe that England’s rule over his native Bengal involved no ‘intolerable injustice’.

That historical case can also serve as something of an analogy that is very relevant to us today in India. There are, I would argue, similarly momentous manifestations of severe injustice in our own world today in India, such as appalling levels of continued child undernourishment (almost unparalleled in the rest of the world), continuing lack of entitlement to basic medical attention of the poorer members of society, and the comprehensive absence of opportunities for basic schooling for a significant proportion of the population.

The root cause of all these maladies is lack of family planning, which is a perfectly legal choice, on the one hand and, on the other hand, widespread corruption in the Public Health, Education and Food distribution Services, which can and ought to be punished by law. However, this would require proper investigation because the crime is being committed in a secret manner.

By contrast Slavery in America was legal in certain States, whereas helping a Slave to gain Liberty by fleeing the South, was severely punished by Law. It is true, however, that for purely economic reasons- viz. that slaves were fungible assets- the Black American slave was better fed, housed, trained and medically treated than most Indian people at that time. But, had Indians been able to emigrate to America, they too would have seen a like amelioration in their lot.

This raises an important question. Why speak of 'manifestations of severe injustice' when you yourself earn a lot of money in the UK and the US while poor Indian people who may have a superior 'idea of Justice' are not permitted, by Law, to enter such paradises?

Whatever else nyaya must demand (and we can have all sorts of different views of what a perfectly just India would look like), the reasoned humanity of the justice of nyaya can hardly fail to demand the urgent removal of these terrible deprivations in the world in which we actually live.
What on earth is 'the reasoned humanity of the justice of nyaya'? How is it different from plain 'humanity'? Humanity demands we help starving people. Reasoning is irrelevant. Sentiment is what is important. Revealed Religion tells us each human being is created with a soul equal to any and all others. Science can make no similar claim.

India has laws regarding Right to Food, Education etc. Justice, as represented by the Courts, can and does direct Government Agencies to take action in a time bound manner.

Political philosophy can be of no use here. This is a practical problem which actual Public Policy and real world Jurisprudence can tackle.

Still, we must admit, poverty has a Malthusian aspect. The good news is that improving female economic participation creates a virtuous circle encompassing demographic transition.

Sen, ignoring the principle of ‘mastyanyaya’ says-

This is not only a matter for political philosophy, but also a central issue in political practice. 
How is it a 'matter for political philosophy'? The thing is wholly useless. As for 'political practice'- i.e. logrolling and virtue signalling- that's what created the problem in the first place. Dr. Jack Preger- an actual Medical Doctor though his first degrees were in Econ & Pol Sci- worked in Calcutta. He explained how things could be fixed. Nobody listened to him. Instead, he was constantly harassed by the Indian Govt. because of claims that he was actually a Missionary. He explained that he had been thrown out of Bangladesh because he had blown the whistle on wrongdoing by International NGOs and Christian Charities. In Calcutta, it was actual Christian Missionaries who were complaining about his Medical work and research on corruption within the Public Health System. They tried to get him deported by falsely claiming he was converting poor Hindus by bribing them with medicines and food.

Sen, the 'Mother Theresa of Economics' writes-

It is easy enough to agitate about new problems that arise and generate immediate discontent,
In a Democratic country, yes. The thing can or ought to be easy. Why? Because problems can and should be fixed immediately by improved mechanism design.
whether it is rising petrol prices
There is evidence that agitations in this respect can and ought to be diffused by changing incentives for those whose demand is inelastic such that they are left no worse off- i.e. the income effect is neutralised.

The 'Yellow Vest' movement in France was about a 'Green' tax whose Income effect was not sterilised. This is the sort of thing Mathematical Economists ought to be doing. If not Slutsky then Frank Ramsey provided the formula long ago.
or the fear of losing national sovereignty in signing a deal with another country. These too are, of course, issues of importance, but what is to me amazing is the quiet acceptance, with relatively little political murmur, of the continuation of the astounding misery of the least advantaged people of our country.
Sen may have 'quietly accepted' all this and thus have been able to emigrate to greener pastures many decades ago. But lawyers and politicians and administrators who remained in India did the jobs they were paid to do. This meant having to permit India to grow a little so as to generate resources for altruistic, or populist, schemes.

Sen may think that everybody should first feed and educate the poor before talking about stuff that interests them. However, that isn't what he himself did. It is a little late in the day to pretend that his own trajectory was that of an Jean Dreze and that he was holed up in jhuggi eating daal-baat rather than a Master of Trinity presiding over a richly laden High Table.

The crowding out of political interest in the colossal and persistent deprivation of the underdogs of the Indian society through the dominance of more easily vocalisable current affairs (important as they may be) has a profound effect in weakening the pressure on the government to eradicate with the greatest of urgency the most gross and lasting injustice in India.
Sen is being silly. 'Vocalisable current affairs' don't have a crowding out effect. Empty talk- like Sen's own worthless sound-bites- does not use up scarce resources.
There is something peculiarly puzzling about the priorities that are reflected in what seems to keep us awake at night.
Sen pretends that the suffering of the poor keeps him awake at night. The result is yet another content-free book designed to put us all to sleep.

But, this is just a case of market driven bis repetita placent.

In an earlier book- 'the Idea of Justice' Sen made great play on the distinction in Sanskrit between Nyaya and Niti- i.e Philosophical Jurisprudence and actual Public Policy- speculating on how Kautilya's cunning Niti might have laid the foundations for Ashoka's Buddhist Nyaya by drawing, perhaps, upon the scholarly work of T.H. White who described a similar relationship between Merlin's Magic and Arthur's Camelot 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 (washer-man) 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 choice of righteous 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 requiring a General Eyre.

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 provided Hinduism with a particular type of 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 or virtual, and thus empirical and mutable, rather than real, substantive, analytic 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. Alternatively, in Mimamsa- the traditional Juristic hermeneutic- the maxim is a conventional lawyer's term for the 'big reason prevails over the small reason' thus giving a criterion to distinguish ratio from obiter dicta.

As an empirical matter, the Law would become more restrictive during a period of 'avasarpini' cosmic decline. In Hinduism this licenses the doctrine of exigent circumstances 'apadh dharma' which, however, can be interpreted as either enjoining greater strictness or no strictness at all.

Under the older view, harsh vows or more restrictive vocational observances-'Vrtas'- would become obligatory for wider sections of Society because of the adverse tide of events. Yet, at the same time, any substantial increase in observed license would militate to the conclusion that what was formerly prohibited has now become the norm.

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 it's 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?
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.
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.
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.


Anonymous said...

This is an incredibly badly written blog post. What is your native language? Perhaps you should first write out your thoughts in your mother tongue and then translate it into English (that is, if you feel you really have to write in English)

windwheel said...

Dear Anonymous,
My native language is Tamil. I don't know how to write Tamil. Thus, your suggestion, though kindly meant, is no use to me.

Abdullah Khoso said...

Dear Anonymous, it seems you have English phobia. You should have rather appreciated thoughts of the author in the article. First learn to appreciate or disqualify contents of the subject then come to speak on tiny matters of language. All the best, Abdullah

Anonymous said...

I think you have completely misunderstood what Dr. Sen has said.
Please see this article
Rashme Sehgal: In your book, you repeatedly make a distinction between niti and nyaya.

Amartya Sen: Neeti is about rules and institutions and nyaya is about their realisation. To cite an example, caste policy is driven by neeti whereas I believe that we need a more nyaya-based perspective while dealing with caste distinctions as with other issues as well.

Reservations as a policy cannot be justified on grounds of redressing the past. It would be justified in terms of improving the present. Therefore we have to judge reservations as a niti in the light of what it actually does rather than what it is theoretically expected to do.

Nyaya is not just a slogan, it means that we realise all the different aspects of human life and take into account all the relevant factors.
(my comment- Dr. Sen is saying, niti means rules and regulations. Govt. of India applies rules and regulations blindly. They should not do so but look to see if the result is anyaay (injustice) or if it is nyaay (justice) What is wrong with that? It is merely a matter of common sense.)

RS: How exactly do you define justice?

AS: Justice is a complex idea, which has everything to do with everyone being treated fairly. But the theory of justice must be concerned with the systematic assessment of how to reduce injustice in the world, rather than concern ourselves with what a hypothetical "perfectly just society" would look like.

There may be no agreement on the shape of perfect justice but we can still have reasoned agreement on many removable cases of manifest injustice, for example, the presence of widespread hunger and deprivation, or the lack of schooling of children, or the absence of available and affordable healthcare. If we do not eliminate removable injustices, then we are living without justice in a more practical sense. In India, we need to concentrate on removing all manner of injustices.

It is extremely shocking that we have not done enough to eliminate gender inequality. The widespread maternal undernourishment that leads to foetal undernourishment – this deprivation goes back to the womb. I have always maintained that gender deprivation, gender inequality, and child deprivation all go back to the deprivation of women. These are the big injustices, which we need to pay attention to.

RS: Do the middle class and the educated elite need to engage to a greater extent with these injustices?

AS: All I would like to say on this is that there is a need for every Indian citizen to think of whether he or she is sufficiently concerned about the interests and needs of the most deprived sections. The extent and number of people who think and concern themselves about these deprived sections should indeed become much larger.

( my comment- all that Dr. Sen is doing is saying that free public discourse should promote Justice and Fairness. It should seek to eliminate discrimination and suffering. There is no perfectly just society- instead day to day we should try to fight injustice)
Your post completely misses the mark. Perhaps you are angry on religious grounds with Dr. Sen. However, India is Secular country so this criticism should be put in logical form otherwise mention that your blog is only for people belonging to your sect or cult.)

windwheel said...

@ anon- Thanks for your comment.
Sen says ' Neeti is about rules and institutions and nyaya is about their realisation'- is this true? I say, no. Niti means conduct and policy. Vyavahara or Acara deals with rules and institutions. A person who violates Acara or Vyavahara- e.g. a person who breaks the rules of his sect- may have good Niti if his purpose was pure and unselfish. A person with good Niti would automatically behave as Sen advises. However, the consequence could be Anyaya (injustice). For example, I truthfully answer the question of murderer regarding your whereabouts and thus unwittingly contribute to an injustice- viz. your being killed.
Atonement can be offered for an Anyaya injustice by the King even if he acted with good Niti. The classic case is of King Shibi who offered protection to a dove. The hawk complained that his was an injustice since the dove was his own proper food. The King then offered his own flesh to atone for his injustice.
Sen has used the words niti & nyaya in a 'yadraachashabda' (use-as-you-like word) manner which is not supported in classical Indian literature.
Thus he is giving his own writing a spurious prestige.

There are some theories of Justice which say that there is a duty to provide health, education, food etc to the poor. But, such theories need to explain why that duty arises. One type of theory might say Justice legitimates the authority of the State, another might say such Justice is pleasing to God, a third might say that is an essential complement or background for a contractarian theory, yet others might take a 'virtue ethics' approach.
Sen says his foundation is something called public discourse and that maybe it has something to do with democracy and pluralism but he fails to make his case. Everybody agrees that Rawlsian Justice can't actually decide anything- e.g. is abortion wrong- but nor can Sen's Justice- e.g. is Right to Food correct.
One other point- my criticism of Sen's remark on the Gita is not made from a Religious perspective but from that of 'Rational Choice hermeneutics'

Anonymous said...

@Windwheel- Dr. Sen is using the word Niti in a specific sense which he has carefully described. This sense is of following proper procedure to ensure fairness and just proceeding by institutions, officials and policy makers. He mentions caste only in the context of the question 'is it just to have reservations for certain castes on the basis of what happened in the past?'. Your mention of Acara and Vyavahara is not relevant here.
Dr. Sen says ' If we do not eliminate removable injustices, then we are living without justice in a more practical sense. In India, we need to concentrate on removing all manner of injustices.' The meaning is that glaring instances of buman rights abuse- including right to life, livelihood, education etc- must be addressed immediately. A Government which follows all the rules and regulations but which fails to tackle pressing matters is a Govt. which is unjust even though, from the technical point of view, no wrong doing has occurred.

windwheel said...

Niti means moral guidance. Morality and ethics is not about just following procedure blindly while ignoring suffering or injustice.
It is highly questionable whether Hindu law- except that dealing with Acara/Vyavahara- ever subscribed to immutable rules or indefeasible reasoning. Certainly, learned scholars, like Chief Justice Gajendragadkar rejected this view.
The duty of the King towards his subjects is not limited to any degree. If he sees hunger, his duty is to feed. If he sees sickness, his duty is to make provision of health services. On the other hand, he has no duty to continue to employ a Judge or official who, while sticking to the letter of the law, nevertheless fails to prevent injustice or avoidable suffering.
The Bhagvad Gita rejects 'ethical objectivism'- it says that karma can be destroyed by the Grace of God. Sen himself rejects objectivism and champions a cognitivism such that 'human capabilities' are objective and the source of value. There is no reason why Lord Krishna should not be read as championing this view rather than 'deontological niti'. After all, Arjuna has certain human capabilities. Why should he not exercise them given the extraordinary circumstances of the Kurukshetra war?
More generally, in India, a 'capabilities approach' should counsel education in the vernacular language, reverence for indigenous religion, scripture, art and so on. Why? Because, otherwise, English speakers have a huge in-built advantage whereas vernacular speakers face continuous discouragement and a 'glass ceiling'. The problem is that Capabilities, as opposed to traditional Utility theory, has everything to do with relative status, one's place in the pecking order, having 'voice'.
It may be that Capabilities in aggregate improve if High Castes are penalized or English speakers have to pay an extra tax. Capabilities can't tell us in advance whether Caste based reservations are a good or back thing. It may also be, as was suggested in the Seventies, that People's Courts avenging past crimes on the part of the Upper Class are necessary to overcome the 'broken' status of the oppressed.
The danger in Sen's thesis is that he says that ethical conduct isn't as important as addressing Injustice immediately. But, how is that to be done such that 'Capabilities' are maximized? Why not direct action, People's Courts, seizing property form 'oppressors', banning of English schools and so forth? Come to that, why not a Cultural Revolution? Mao transferred power from elderly men to teenage girls. Did this change the Capabilities of Chinese females? I don't know, but I think we all would be better off if the experiment wasn't made to find out.

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