Friday 26 February 2021

Why the Law and Political Economy project is shite.

I was born in Germany almost 20 years after the ending of the Second World War. I vividly recall explaining to the other babies in the maternity ward that Hitler had lost because he relied on Guns and Tanks and Submarines. Germany must try again, this time with bows and arrows. Sadly, the Germans don't appear to have heeded my kind suggestion.

In America, a bunch of Law Professors are suggesting that because the Coase-Posner 'Law & Econ' tradition hasn't succeeded completely, we should go back to a bullshit Lefty 'Political Economy' of a sort that appealed to Campus Maoists off their heads on drugs some fifty years ago. The problem here is that everybody knows Maoism failed just as everybody knows bows and arrows were shitty when compared to guns and tanks. This doesn't mean bows and arrows weren't cool or that England didn't once have laws about yeomen having to practice archery rather than play football. It just means the world has moved on.

Britton-Purdey et al write-
We lost the ability to see certain commitments in our law—whether educational exceptions to copyright law, or commitments to clean air

which arise out of the common-sense of the Common Law. It was obvious that an author whose work was read in class was not losing royalties. On the contrary, the kids who had to learn his shite might develop a taste for it and grow up to buy leather bound volumes of his oeuvre. Clean air affects our health. If the guy next door sets up a tannery, the value of our property plummets. It is not the case that the Law was ever on the side of free education at all levels or that it put the Environment above economic activity. These guys are telling stupid lies about a supposedly vanished golden age which was brought down by Coase & Posner & the Federalists.

They say there were 'political values'- of a crazy sort- embedded in the Constitution. Now it is quite true that a crazy person can say that the words in the Constitution mean some crazy shit. But that's why the Federalist Society became the dominant school of jurisprudence. It is better to be an 'originalist' rather than have to argue the toss with every crazy shithead who turns up to say 'pursuit of life, liberty and happiness' means everybody should supply abortion on demand to everybody else.

—as either reflecting or calling forth certain kinds of political values, or as taking a side in disputes that were inevitably struggles for power.

In other words, telling lies like 'the US constitution originally said kids could pirate anything they liked but those evil Republicans have changed the Laws' is not causing kids to join with Teacher in marching on Capitol Hill. Why? Kids have smartphones. They can immediately Google this and discover Teach is lying.  

That move, of course, was not neutral.

Whereas telling stupid lies is neutral. 

It expressed a particular view of power and legitimacy, one that viewed market ordering as tending to diffuse and neutralize power and as earning legitimacy by producing both a wealthy society and an appropriately constrained state.

These pedagogues may have a 'particular view of power and legitimacy' but this is because they are paranoid nutjobs subscribing to a foolish and long abandoned type of political activism. Other people don't bother holding any view in this regard. They get that markets may diffuse or may concentrate power while getting on with allocating resources. Equally, it may be the case that the Post Office, when not busy delivering parcels, is a front for wealthy pedophiles. But, equally, it may not be. There's no point getting your knickers in a twist about it.

Britton-Purdey et al pretend that there was a time when the Law was what they want it to be. Yet there is no evidence for this at all. Why are they lying to their students? Is it because their courses are adversely selective? They get shit students who in turn are only employable as shit teachers or shit writers for shit Think Tanks.

Britton-Purdey et al want us to believe there was 

a constitutional erasure of the structural subordination of the poor, people of color, and women.

These are fighting words! But only if they can be backed up. Otherwise they are bullshit. Let us see if the can prove what they say. 

Two steps were key here. First, despite efforts to constitutionalize welfare rights in the late 1960s and early 1970s, the Court held that public-benefits legislation was discretionary and refused scrutiny for poverty as a class, arguing that it was not susceptible to such sharply delineated formal inquiry.

To constitutionalize welfare rights would cause the Legislature to bind itself in perpetuity on vital fiscal matters. Since the Bench is ultimately constituted by the Legislature the thing was pointless. One way or another it would be undone. 

When individuals argued that their ability to exercise their constitutional rights was pertinent to the constitutional obligations of the state—for example, when women argued that the state could not constitutionally subsidize childbirth without also subsidizing abortion,

the bottom fell out of the Progressive platform. People don't mind their tax dollars going towards bringing cute babies into the world. They object to killing fetuses.

Why not assert that if the State subsidizes the training of midwives it must also subsidize the Caliphate in training suicide bombers to kill those whom those midwives help bring in to the world?   

or plaintiffs asserted that low funding levels for public schools in high-poverty districts denied students the material basis for exercising the rights to speak and vote

which was a terribly silly thing to assert since Americans who had never been to High School had been voting and speaking sensibly for two hundred years.

Why not assert that not having a PhD in Gramscian Grammatology would compromise one's ability to make a cross on a ballot sheet?  

—the Court demurred.

Do these guys not get that they are making themselves, not the Court, look ridiculous?  

Just when the achievement of formal equality meant that the major threats to an egalitarian society lay in structural inequality, the Court approved policies that compounded inherited forms of inequality, permitting education funding to vary in proportion to municipal wealth, and the access-to-abortion right to depend on having the money to exercise it.

Why? Because the sort of 'egalitarian society' these guys wanted was not what the voters wanted. No doubt, the thing was also unconstitutional- but Constitutions can be amended.  

Second, the Court encased forms of private, material power by rejecting heightened equal-protection review of policies that predictably and persistently reproduced underlying patterns of economic, racial, and gender inequality.

How come rich, hard-working, people so often have rich, hard-working, kids while  very poor crack addicts tend to have kids who may be as poor? Is this something Constitutional Law can remedy? Perhaps. It could forcibly sterilize some and take kids away from others. But is that what voters want?

In this way, the Court determined that education, public hiring, and criminal-justice policies could reproduce and even amplify social and economic inequality as long as they did not intentionally treat individuals differently on the basis of a forbidden characteristic.

But those did not actually 'reproduce' those social and economic equalities. Sex did. Rich, hardworking, people had protected sex a lot of the time till they could afford to have one or two kids whom they could send to College. Those families which remained poor from generation went ahead and had unprotected sex even if this meant that 'poverty' was reproduced. On the other hand, religious piety and moral character too may have been reproduced. Indeed, for all we know, good families that stay poor may be happier and have better 'inclusive fitness' than those who reproduced wealth. 

Yet it is precisely the defining character of structural inequality that it persists independently of individually disparate treatment.

No. The defining character of structural inequality is that it arises out of structural differences of a biological or geographical sort. The Law can do little where Nature determines outcomes.  

A conception of equality that ignored material deprivation and focused on improper intent

was all that the Law allowed. Politics could change that. Why do these cretins not try changing the 'conceptions' of voters rather than whining about the fact that Lefty Legal Scholars were shite 50 years ago and remain shite today? They lost then, they lost now. Why? Because they had embraced a lunatic doctrine. 

encased the most pressing sources of inequality

like how come Beyonce earns more than me though I too can twerk as I sing- though not perhaps as melodiously 

Consider the LPE claim that there are

 three emblematic moves of modern constitutional law. Each of these moves helped recast issues of justice as something other than political economy questions.

Nonsense! Justice isn't Political Economy any more than Art or Science is though, no doubt, it is an economic activity. 

First is an account of constitutional equality that exiled matters of class and material, structural inequality from the reach of constitutional law.

Exiled? Constitutional Law gradually extended its scope to those lower down the social scale. But it didn't back-track. It may not have gone on to do what these guys wanted but that isn't the same thing as saying it stopped doing something they liked. On the other hand, the Legislature could and did backtrack. Consider the Taft-Hartley Act of 1947. It essentially put Trade Unions back into a pre-1935 box while driving Commies out of the Labor movement. There can be little doubt this was a good thing for American workers. Without it, there would have been no affluent society. It should be remembered that Earl Warren had a strong anti-Communist reputation- perhaps framing Labor leaders as Reds during the Thirties. Yet, perhaps thanks to Brennan, for whom Posner clerked, the Warren Court is considered the most liberal in American history. The other side to this story is that empowering women and African Americans reduced the power of White labor leaders. It was only two decades later that the Republicans switched to a 'Southern Strategy'. Positive Political Theory (PPT) explains this actual 'Political Economy of Jurisprudence'. But L.P.E prefers to tell a fairy story about a Golden Age which was spoiled by evil Neo-Liberal Law & Econ mavens. 

Hence the claim that constitutional law suddenly 'exiled' stuff these guys want. It seems the first 'emblematic way' these guys make an argument is by saying 'Since you didn't give me what I wanted, it is the case that you stole from me'. 

Second is an expansion of the conception of First Amendment-protected “speech” to encompass certain economic transactions, including protecting advertising, campaign spending, and even the sale of data from regulation.

This is not an expansion. It is merely not the contraction which these guys wanted. Thus the second emblematic way they tell lies is by using sophistry and twisting words.

Third is an aggressive application of public-choice theory’s market-modeled skepticism of the state to legislation and administrative regulation.

If a theory is empirically proven, we don't say that Judges rely on that theory but rather on the facts presented by expert witnesses. 

It is a fact that legislation and administrative regulation can be motivated by mercenary motives of a hidden type. Factual evidence in this regard has to be accepted even if some guys don't like the theory behind it. Some may have an objection to Newton or Einstein. But this is not germane in a Court of Law if expert testimony, conforming to either's theory, is backed up by empirical facts.

Thus the third emblematic way these guys lie is by pretending Judgments based on facts are actually based on theories which are unproven and mischievous. 

These together form an encasement of economic power in the constitutional realm, tending altogether to render democracy subject to the market, rather than subjecting the market to democratic rule.

What does 'subjecting the market to democratic rule' actually mean? People have to vote on whether I can get to keep stuff I paid for? 

Suppose I said- 'Lies told by these shitheads together form an encasement of pedagogic power in the constitutional realm, tending altogether to render democracy subject to a bunch of stupid Professors, rather than subjecting pedagogy to democratic rule'.  You would answer, 'don't be silly! Some Pedagogues are shite. Others aren't. Democracy is a separate matter. Politics is relatively autonomous with respect to both market and pedagogic tendencies of howsoever unfortunate a type'. 

The objection may be raised- surely the Law is different from other fields? What if a sinister bunch of pedagogues has twisted the minds of our Judges?

My answer is, the Law is a Service industry- nothing more. There is an effective (i.e. backed by money) demand for it and a more or less costly supply of it. At the margin, there is entry and exit from its jurisdiction. Why? Because it uses up scarce resources. Thus it is part of Economics. Since the law costs money, its interessement is a function of transaction costs which in turn are a function of incentive compatibility. Where the Law is relatively shit, 'folk theorem based' Mechanism Design is relatively good and vice versa. Where the Law is cheap and effective and good, the Economy may stagnate because 'endogenous growth' generating externalities weren't being internalized. Of course, 'ethnic monopolies', or other high trust networks, escape this trap because internal transactions are valorized for non-economic reasons.

As with Markets, the Law too mustn't be too perfect otherwise it reduces an important driver for growth. This is easy to see from a common-sense perspective. But academics have no common-sense. As pedagogues, their job, is to have a worm's eye-view of, not the good earth, but an abstract model of a puerile type.

Since Lawyers often work for Business Enterprises they take the common-sense view. They meet their counterparts and work out mutually beneficial arrangements which may be embodied in contracts of various types. Some contracts may be adjudicated in certain jurisdictions which creates a rent for the 'Lord of the Manor' in that place. This is similar to seigniorage. But if jurisdictions have to compete, then there is something like 'Tiebout sorting'. Certain economic activities gravitate to certain jurisdictions which offer the right 'mix' of regulations and enforcement mechanisms. Jurisdiction shopping tends to cause convergence save for 'Tiebout' exceptionalism reflecting specific localized externalities. 

The 'Law & Econ' approach won out over other types of jurisprudence because, as the economy developed, most lawyers, or the best paid lawyers, were working for businesses in one way or another. They seldom went to Court. Their business was working with accountants and engineers to figure out how to make make mutually beneficial business arrangements.

By the time Ronald Coase enrolled at the LSE- he was planning to become a Solicitor- it was obvious that the business of the law is business. That is its bread and butter. Batman or Sherlock Holmes may be better able to deal with crime. Lawyers had to understand how business works- i.e. they needed to think like economists. Since Coase was hella smart and studied under Sir Arnold Plant, an expert on industrial economics, Coase could do well without becoming a lawyer. Indeed, as he said, the aim of his work was to reduce legal costs. His insights could also be adapted by mathematical economists at a later date thus becoming complementary to the 'reverse game theory' that is 'mechanism design'.

The State had developed a Competition policy at an early point so as to prevent the extraction of monopoly profits- or at least so as to get a portion of that 'economic rent'. However, such policy could be 'gamed'. Regulatory Agencies could be 'captured'. The cure could be worse than the disease. 

Back in the Nineteenth Century, some guys with Doctorates in the Law- people like Marx and Lasalle- could go in for 'Political Economy' because the rising bourgeoisie as well as organized labor was willing to pay for that type of shite. But, it was clearly shite. Gorbachev was trained in the law. He tanked the Soviet Union which had a system of Justice which took into account class origin and 'histories of persecution' etc. But that Justice was shite. People ran away from it. 

Now, with Biden's victory, it appears that some shitheads are demanding the replacement of 'Law & Econ' with 'Law & Politics'. 

As a case in point, the Boston Review has an article titled 'How Law made Neoliberalism'. The subtitle is 'If we are to emerge from this era of crisis, we need legal thinking that operates on fundamentally different presumptions.'

Under the Twentieth-Century Synthesis, areas of law that concern aspects of “the economy”—for example, contracts, corporations, and antitrust—were given over to a “law and economics” approach that emphasized wealth maximization.

How was this different from the 'Nineteenth-Century Synthesis'? The fact is some countries were Communist for a large part of the Twentieth Century. Then, for some reason, they stopped being so. Perhaps this had to do with people running away so as to get to a place where markets were freer and equality and fraternity were not considered good things if they interfered too much with the liberty of the rich and the talented and those who might otherwise run away.  

Meanwhile, other values—such as equality, dignity, and privacy—were supposed to be realized in constitutional law and areas of public administration.

How? Which Court will uphold my dignity if it is my habit to piss myself in the street while off my head on booze? What about equality? Will the DMV make me equal to David Beckham? Since it won't renew my license, its the least it could do by way of reparation.

Shaped by these ideological currents, constitutional law turned away from concerns of economic power, structural inequality, and systemic problems of racial subordination.

But what did constitutional law achieve when it did have those concerns? Anything at all to write home about? Constitutional law did nothing to prevent Jim Crow growing strong and then precious little to uproot it. Why? The Law is merely a service industry- like prostitution or pedagogy. It can't do much to change Society. But, no doubt, when Society changes enough, it too has to change. This is why I've had to give up hanging around the docks in fishnet stockings. Tastes have changed. Sailors no longer want instruction in the finer points of linear algebra from a guy in a blonde wig. Fuck you Khan Academy! Fuck you very much! 

No doubt, some senior prostitutes and pedagogues and legal eagles can create a taste for something recherche but it is bound to be a localized phenomena though, purely as a fad, it may have wider currency- like Punk 'bondage pants' in the late Seventies or Chidu's assless chaps under the first UPA Administration- because sooner of later 'jurisdiction shopping' militates for convergence to the median. It may be that one or two 'Tiebout models' buck the trend but, where there is a coordination game, there is bound to be a discoordination game. There's no point buying into the hype.

Other “public law” areas did the same. The result was that deep structures of power at the meeting place of state and economy were shielded from legal remedy and came to seem increasingly natural.

But this is true of any service industry. If priests are incessantly buggering little boys and banging on about how everybody should have babies like crazy, then sooner of later they get kicked in the goolies and told to fuck off. When the Law oversteps the mark, Crime holds it down and fucks it over till it cries Uncle.  

Our ambitious hope is to replace the current “common sense” of legal scholarship with a new set of default ideas that will prove more responsive to the crises that we face.

Why not? There are lots of Foundations with too much money which they'll happily spend on worthless shite. The problem is that the tax payer may want Courts to charge these cunts through the nose for wasting their time. They may defund areas of the Law and its Enforcement such that the return on justiciability becomes negative. 

So long as the Law is a service industry funded either by litigants or by the taxpayer or a mixture of the two, there are limits to what it can do though, no doubt, a few may do very well by pretending otherwise. 

A number of us—legal scholars, practitioners, activists, and academics gathered under the rubric “Law and Political Economy”—have begun rethinking the relationship between law, economy, and politics suggested by the Twentieth-Century Synthesis. Our ambitious hope is to replace the current “common sense” of legal scholarship with a new set of default ideas that will prove more responsive to the crises that we face.

Cool, but only if we could actually have a Revolution that changes things- i.e stringing up rich dudes and dudes who look like they might be kinda rich or basically anyone we can get our hands on given the fact that the rich have run away.  

The problem is that people may want help with their bills right now rather than wait for a share of the pie after the Revolution. This is the problem with having a sophisticated financial system. The Govt. can actually put 2000 dollars in your account every month. Direct transfers are a game changer. The old 'Political Economy' was about the Agencies which do the redistribution. That's why a lot of middle class cunts were keen on a type of redistribution which didn't redistribute shit but got them a nice office and an assured position in Society.

Law must move from 

Why just Law? Why not Art? Why not Music? Why not Sex? Why not LSD in the water supply? Why not the toilers of the earth who have nothing to lose but their chains? But if everything must move, why mention the Law? The thing plays catch up. First there is the crime- i.e. stringing up rich dudes- then and only then can the Law play a role by saying 'Not Guilty by reason of being an ipso loquitur Rabbit!' or whatever. 

must move from trapping us in accelerating crises toward providing paths to new and more adequate ways of setting democratic terms for a common fate.

But the Law has always been useless in this department. The Legislature can do stuff, though it faces a budget constraint. The President can do stuff- though the Courts may be a drag. But what can the Law do? Surely it has to itself go according to the Law? 

I suppose, it could be argued, that something like a Left wing Federalist Society needs to be created. But surely such things already exist? The problem is that they look a bit shit, intellectually speaking. This is because 'Political Economy' is a bit shit, cognitively speaking. Nobody's stopping Leftists from using Game theory and Mechanism Design and Big Data to discover systemic discrimination and apply for legal remedies. But that sort of thing is not predicated on repeating stupid shite. 

The U.S. Constitution, for example, should be interpreted and amended to align with democratic principles and become a platform for actual and democratic self-rule.

How? Quadratic voting? Cool! The problem is that stuff like quadratic voting doesn't feature in these guys 'Political Economy'. It's too mathsy.

Other changes—from constitutional doctrine, to voting rights, to legislative procedure—are also urgently necessary if the country is to become more democratic.

Why not achieve those changes using mathematical 'Law & Econ'? The thing isn't rocket science. Why go back to slow witted Nineteenth Century 'Political Economy' in order to fight the battles of the Twenty First Century? 

Simultaneously, lawyers must advance values of democratic empowerment in institutional settings that have, for decades, been defined as insular, technical, and, if at all political, relating to expert “governance.” The Twentieth-Century Synthesis has obscured the significance of this work. But, if we are to emerge from this era of crisis, we need legal thinking that operates on fundamentally different presumptions.

Presumptions aint justiciable. Why not get evidence and present cogent arguments? Even suppose you brainwash a bunch of lawyers into repeating this shite, why should Judges grant their 'presumptions'? After all, they need to give a ratio which can stand up on appeal. 

It may be that there are jaded lawyers who need to be psyched up by repeating mantras from the Old Testament or the slightly newer ones of Karl Marx before leaping into the ring. But if they keep losing, fuck them.   

The history of post-war economics and its intellectual predominance are partly responsible for the growth of the Synthesis. The Synthesis is also a story of the relative economic success of the decades following the World War II, when the market economy seemed to be reliably expanding, with broadly shared increases in income. Both Democrats and Republicans increasingly came to see the economy as an object of routine expert management.

When was the economy considered a suitable object for amateur cretins to play with? 

Persistent issues of inequality, such as racial hierarchy, were recast by many mainstream thinkers in the 1950s and ’60s as problems of inclusion in a system that basically worked.

As opposed to what? Separatism? Bantustans?  

That idea persisted long after any empirical plausibility was undercut in the mid-1970s, when wages stopped increasing for ordinary workers.

Economists can argue whether real wages rose by 30 per cent or whether immigration hurt 'ordinary workers'. But these are questions for experts in Economics. What can it possibly have to do with the Law? I thought these guys wanted to divorce Law from Econ so as to get back to 'Political Economy' and fairy stories about class solidarity and the inevitable fucking-over of the bourgeoisie.  

Its legitimacy was further undermined by the inequitable results of the financial crisis of 2007 and 2008, the aftermath of which persisted even as we careened into the present COVID-19 recession.

Obama was a Law Professor. How come he achieved nothing over two Presidential terms? Was it because he hadn't heard of 'Political Economy'? But if a smart guy like Obama didn't know about it, why expect less smart people to get the hang of it and use it to solve all our problems?  

The Synthesis comprises three presumptions that structure much of conventional legal and policy discourse. The first presumption is that the economy is a potentially autonomous system in principle—self-correcting, efficient, and largely serving the common good.

But Economists know that behind this presumption is the presumption that a Goldilocks condition re. preference and endowment diversity exists. It appears the 'Synthesis' is ignorant. But to critique it you need more Econ, not some antique 'Political Economy'. 

On this view, government “regulation” interrupts the system and should be treated with suspicion unless it simply solves “market failures.”

Nonsense! Governments supply public signals to promote better correlated equilibria. Furthermore, a market may be repugnant even absent any externalities. Government regulation is one way of addressing 'market failure' but 'mechanism design' can be done by the industry itself. 

Those failures may be widespread, and the state’s role in shaping and maintaining the economy extensive, but the law is to be oriented toward an approximation of the self-sufficient ideal of economic order. This presumption erases the growth of unequal income and wealth that is the empirical tendency of market economies, as well as the “private government” of managers dominating workers and monopoly firms, such as Amazon, increasingly dominating whole sectors of the economy. From this perspective, antitrust regulation gets between giants such as Amazon and their willing customers; unions regiment the labor market, boxing out individual at-will employment; financial regulation curtails innovation among investment managers. This posits that liberty and the general welfare will be advanced by getting the state out of the way—by “deregulating.”

Why? Jurisdiction shopping under International Trade agreements which included I.P and services. America could have stuck with a Competition Policy & I.P regime which caused it to fall behind. Instead it chose to release 'trapped assets'-e.g. patents owned by the Federal Government- and broadened the scope of 'inventive steps'.

Of course, the Synthesis arose during an era not of deregulation but of selective re-regulation. Certain parts of the state grew larger and more restrictive, redeployed to advantage the powerful few. For example, regimes of intellectual property and transnational investment protection—regulatory, if anything—were constructed to empower powerful businesses in the global North. At the same time that the government scaled back social services, it deployed expensive systems of incarceration and penal welfare. The state refined systems of parole and child support to make poor people, disproportionately of color, “get to work or go to jail.”

Why? Their neighbors preferred this outcome.  

Extractive immigration laws gave bosses more control and made workers, authorized and unauthorized, more vulnerable.

In which case, they probably worked harder. Productivity went up. This raised National Income and the Tax take. 

The stories of Flint and Ferguson are not about deregulation and market freedom, but about privateering business interests

Really? Flint found buying water from a Detroit public utility too expensive. So it bought water from the Karegnondi Authority- which was a municipal corporation. This is not deregulation or market freedom. It is a story about a public sector enterprise which was shit at its job. It is notable that General Motors switched its supplier when it noticed increased corrosion. Suppose Flint's water had always been supplied by, local entrepreneur and philanthropist, Mott's Foundation. The supply would probably have been cheaper and better. Instead, it was supplied by crappy public sector enterprises. 

Ferguson's problem arose from an out of control police department, not some rogue capitalist. But stuff like this happened a lot in purely Communist countries. How is it linked to 'deregulation and market freedom'?

finding a foothold in a degraded public sphere,

which is degraded because people don't want to pay higher and higher taxes in return for crappy public services 

implementing new ways to extract wealth from ordinary people, and denying basic entitlements to freedom, equal care, and democratic voice.

not to mention incessant anal probing by extra-terrestrials.  

The result has been the greatest economic inequality and concentrated economic power in a century. At every step,

people not wanting to pay higher and higher taxes has been the cause of the problem. The fact is a Communist country could have very low economic inequality but it would also have very high taxes and utterly shit public services. Also smart people would have run far far away. 

law has been central to these developments—not only providing the rules for new systems of extraction and upward redistribution,

nonsense! The Law has not provided any rules. Contracts have. But if smart people write those contracts stupid people find it very difficult to challenge those contracts by saying 'Boo to the Rich! This Contract is illegal due to Carly Marx said so! Judge, I order you to sodomize that law type guy wot went to Collidge. He is using long words and it is making my head hurt.'  

but also elaborating the ideas used to rationalize them.

Who the fuck needs to rationalize getting more money for less work?  Does Jeff Bezos really say 'how come I'm so rich?' and does the Law really reply, 'Jeff, baby, don' worry 'bout it! It's like habeas corpus dude!'

The role of law in weakening the welfare state

by not granting everybody lots of free money 

and expanding incarceration is clear,

by jailing rapists and muggers instead of giving them lots of money and letting them roam free 

but the shifts in law and legal logic that operate farther from the spotlight have largely been obscured. Take two examples from economic law: antitrust and labor law.

Voters want cheap high quality stuff. Anti-trust law had to change because it prevented the proper exploitation of economies of scope and scale. Labor law had to be reformed because people don't want to be at the mercy of Teamsters and other Unionized thugs and slackers. 

Law has been central to these economic developments

which arose out of a revolt by voters 

—not only providing the rules for new systems of extraction and upward redistribution, but also elaborating the ideas used to rationalize them.

These guys don't mind repeating themselves. Thrifty. 

The Sherman Act, which regulates the level of concentrated ownership in any given industry, was passed and enforced on the theory that corporate concentration was a threat to democracy.

So, it was foolish. 

Justice Louis Brandeis’s perhaps apocryphal claim that “we may have democracy, or we may have wealth concentrated in the hands of a few, but we can’t have both” could have served as a motto for the field.

Lots of this type of legislation was unenforceable or mischievous. Many states still have Robinson-Patman type retail price maintenance acts. But few complaints were ever brought under such acts. 

The other problem is that cases brought under these types of Acts are a double edged sword. They are just as likely to favor a rich Corporation as a bunch of struggling Mom & Pop operations. 

This is the big problem with making the Law the site for Revolutionary politics. The smarter guy can beat up the stupider guy. One alternative is to get rid of 'adversarial' justice and replace it with 'inquisitorial' justice. But the problem remains that the stupid get fucked over. It is safer to just write stupid articles for the Boston Review and to say 'Boo to the Rich' from time to time.  

Beginning in the 1970s, under the influence of conservative scholars (including Professor, later Judge, Robert Bork), antitrust law abandoned this original theory.

Because the Economics had moved on very greatly. Anyway, ways around existing laws were more easily available. The deciding factor was stagflation. Reducing competitive pressure simply meant that both Entrepreneurship and Labor could just take an ever increasing share of National Income. The problem was that, because of 'fiscal drag', this would mean a higher Tax as a proportion of Income. So Voters suddenly turned conservative because Director's Law had ceased to apply- i.e. ordinary people, not just the rich, were paying for what the Govt. provided- which they thought was shit.

In its place, it refocused on the goal of low prices (called “consumer welfare”).

though higher prices make consumers much happier, right?  

Antitrust law followed neoclassical economics in assuming that behemoths are generally large because they are delivering good value, not because they are accumulating too much power. This conviction also presumed that corporate shortcomings would be revealed by new competitors, reinterpreting the waning of competition as attributable to the efficiencies of dominant business.

What's wrong with that? Economies of scale and scope do exist. 

Now our banks are too big to fail, Amazon and Facebook are public infrastructures in private hands, and the super-concentrated meat industry is producing supply-chain breakdowns as COVID-19 devastates slaughterhouse workers.

While the CDC is working marvelously- thinks nobody at all.  

This regime is not serving the general welfare,

It's doing a better job than the fucking CDC or FERC or ERCOT or all the other public bodies which are fucking up every time there's a cold snap in Texas or a heat wave in California or some crazy bat virus from Wuhan gets loose.  

let alone the purposes of freedom and democracy that were once its anchors.

Public sector bureaucracies are quite capable of fucking over freedom and democracy and your drinking water and Vaccine distribution and ensuring a bit of snow crashes the Electricity supply and so on and so forth.  

The keystone of twentieth-century labor law, the Wagner Act, was passed in 1935 to support the creation of unions and promote collective bargaining. As Senator Robert Wagner put it, “Democracy in industry means fair participation by those who work in the decisions vitally affecting their lives and livelihood.” This idea of “industrial democracy” aimed to correct the “inequality of bargaining power” between workers and employers. For many decades it did just that, as unionization rates rose steadily in the decades following the Act, peaking at about 35 percent in the 1950s and early ’60s.

Sadly, women and blacks and immigrants destroyed that paradise for the working man though Jimmy Hoffa getting bumped off didn't help any.  

Today, with private-sector union membership at 6.3 percent,

and public sector unions- like that of the Police- really fucking over the tax payer though, for Blacks, a bullet too may be provided 

the most salient bodies of law for most employees have nothing to do with unions.

Because they were shitty, Mafia infested, deeply racist and misogynist institutions. Still, one can always join a Police Union and shoot African Americans. Don't say the good old days have completely vanished. 

Take for example the series of court decisions that allowed employers to extend arbitration agreements from disputes among companies and sophisticated actors to employer-employee disputes. This means that whatever rights employees theoretically have must be asserted in private forums that reliably favor employers.

The writers have a point. The 2018 Supreme Court decision in Epic Systems would scarcely have been possible if Hilary had won the White House. Will the Senate pass  the FAIR act (Forced Arbitration Injustice Repeal)?  An effective campaign on this issue could unseat many Republicans because of the very large number of people affected around the country.

But this is a case of getting the Politics right, not gassing on about 'Political Economy' and the Law. 

Another example is the permissive category of the “independent contractor,” which both new companies (such as Uber and Lyft) and many longstanding outfits have used to reclassify those they employ as free agents—free, chiefly, from the legal protections employees still enjoy.

Again, legislation is the way to go.  

A legal regime intended to balance power and promote democracy

was scrapped because it did no such thing 

has given way to one that ignores the huge difference in power between companies and individual workers.

but makes stuff cheaper and better quality. 

 Law ignores this discrepancy and, thus, deepens it. This shift in law has helped create our world of low-wage and insecure jobs that endanger workers’ health and safety. As COVID-19 has shown, this endangers all of us.

What Covid showed was the CDC was shite. Public bureaucracies often are. On the other hand, raising compliance costs for the private sector has its limits. The safer thing is to say 'Boo to the Rich!' from time to time and let the matter rest.  

The second presumption of the Synthesis is that legal equality, especially constitutional equality, is best understood as formally equal individual treatment, against a backdrop of a market reified as natural, rather than in light of the deep, structurally conditioned, and market-embedded differences that actually constitute the lived experience of race, gender, and class hierarchies. Formal equality forbids explicitly differential treatment of individuals in different groups, such as Jim Crow segregation, which means that it effectively requires “everyone to play by the same rules” on an unequal playing field. Shaped by this premise, much of the modern jurisprudence of equality turns a blind eye to the cumulative weight of historical systems, biases, and policies that perpetuate disparities in wealth, health, power, and privilege—from the segregated structure of our cities to the racial wealth gap.

Worse still, law courts shamelessly discriminate between lawyers who are stupid and inarticulate and who don't know the law- even if they regularly say 'Boo to the Rich'- and other lawyers who are smart and who present a compelling case. Clearly, we need to remove the presumption that lawyers are equal. Shit lawyers should be allowed to gag their opponents and beat them till they confess that they have no case to present. Of course, this should only be done for shit lawyers who regularly say 'Boo to the Rich'. Then everything would be hunky dory.  

In the 1970s the federal courts asked whether the Constitution allowed unequal school funding, whether racial equality was consistent with “color-blind” policies that reproduced racial gaps, and whether Congress could undercut the effective right to abortion by banning abortion funding while covering the costs of childbirth with public funds. The Supreme Court answered “yes” to each question. Through these decisions, equality came to mean having the same opportunity to win or lose in the marketplace. But this was burdened, of course, by unequal histories of poverty and discrimination.

So what? When had things been otherwise? Who wants to change these things now? Do voters really want to spend their tax dollars on aborting fetuses all over the place? 

Through Supreme Court decisions,

No, through the decisions of voters 

equality came to mean having the same opportunity to win or lose in the marketplace. This was burdened by unequal histories of poverty and discrimination.

but also unequal histories of effort, enterprise, thrift, sobriety etc. 

Finally, the third presumption of the Synthesis was that democratic politics was best understood, in practice, as a vehicle of irrational and opportunistic decisions, which should be constantly subjected to technocratic and juristocratic oversight. Some of this skepticism reflects the influence of “public choice” theory, and some of it implicitly reflects a longer history of technocratic condescension to democratic publics. Skeptics believe that the public is too ill-informed and ill-equipped to handle modern complexities, contending that we instead need insulated expert decision-makers—whether at the Federal Reserve or the Supreme Court.

Crazy people believe that Americans want 'equality of outcome' and publicly funded abortions at every street corner. Even crazier people think that voter wants the Fed and the Supreme Court run by a bunch of volunteers with time on their hands. 

The public was redefined as a collection of discrete “interest groups,” then shut out of rooms where trade deals were negotiated or interest rates were set.

Very true! Homeless dudes were not invited in to piss on the floor and make long incoherent speeches. That's like straight up Nazism, dude.  

For example, reigning trade theory from the 1980s into the last decade asserted that all “interest groups” had to be held at bay—treating both citizens and corporations as “rent seekers” who would disturb the grand bargains and decrease efficiency.

Rent only arises where demand or supply is inelastic. Increasing elasticity is a good thing. It means no 'surplus values' can be extracted. It puts an end to Marxian exploitation and therefore to 'false consciousness' and so forth. Sadly, when dealing with an actual Marxian behemoth determined to exploit the fuck out of its own people and to cheat and steal and get ahead by any means, Trade Theory was shown to be wishful thinking similar to the notion of a 'Rules Based International Order' or this shite these guys have published.

In practice, though, the public was shut out of treaty negotiations

Unlike what happened at the Treaty of Versailles where deputations of Lesbian organic farmers from Oregon freely intermingled with representatives of His Majesty's Government. 

while corporations were brought to the inside and allowed to set the table. This resulted in trade regimes that gave capital priority—for example, access to transnational arbitration to protect their investments, to which labor had no similar claim.

Because labor was now a consumer and cared more about lower prices than the Solidarity of the Proletariat.

But this logic was not limited to trade. Government during this period came to be seen not as a vehicle for public will,

because the public had learned that a vehicle provided by the Government was likely to be very expensive and to be utterly shite 

nor politics a place to debate, form opinions, and seek the public good—

which is what obtained in the paradise of Jim Crow which preceded our own evil age 

rather, both were assimilated to the logic of the marketplace, where the only “rational” choice is maximizing one’s own individual benefits. Here, government—with its monopoly on the use of force and certain public institutions—was a suspect kind of monopolist. Free from the disciplining force of “competition,” it would inevitably become corrupt—a trough where “special interests” go to seek spoils.

The fact is, voters in the Seventies became disgusted with 'Corporate welfare'- tax payers didn't want to subsidize enterprises. The thing was wasteful and politically mischievous. GM gives you a job for 100 dollars and claims 30 from the tax man who takes 40 out of your wages to pay GM. Meanwhile, you have to buy a Toyota to get to work because GM cars are shit because you are shit at your job. That was the Seventies for you- at least that was how many remember it. 

On this thinking, it made sense to try to roll back government (read: labor and civil rights protections, environmental regulation, etc.) to enable market competition and have government function like a market.

Politicians sell themselves as do pointy headed intellectuals and boring bureaucrats- that's a market right there 

The Supreme Court and public institutions, enabled by both parties, blessed a range of moves to promote this ideal, most beyond the glare of constitutional law. This was the general rule: government would be rolled back at the same time that it was also rolled out.

and at the same time as it rolled on to its tummy and stuck a radish up its bum 

The point—sometimes implicit, sometimes explicit—was to enable market logics to rule over more of public life. All the while, the marketplace increasingly became a locus of concentrated power.

Only in the same sense that it became the locus of diffused impotence. 

These three presumptions emerged from a combination of intellectual networks and, yes, interest group politics.

No. Once lawyers understood that they would not be part of a Revolutionary Tribunal sending the bourgeoisie to the guillotine but, rather, be sitting in offices poring over the details of commercial contracts, the following three presumptions emerged

1) Law is a Service industry. If it doesn't contribute to the sum of economic activity, it will be pruned back or the polity will go to pot

2) Law is adversarial. The stupid lawyer will lose even if he has a good case. You have to be smart. But to be smart you have to accept reality, not live in cloud cuckoo land

3) Politics can do what the Law can't and would be foolish to try. But, unlike Econ, which subsumes the Law, Politics is autonomous and of the moment. The political direction taken may be the opposite of the one in which jurisprudence is moving. This is because politicians say one thing and do another. 

On the one hand, scholarly debates about concepts such as cost-benefit analysis, economic efficiency, and public choice shaped the terrain of

the Economy. This in turn meant affected not the debates but the outcomes of 

debates about law and public policy. Then, partisan actors and interest groups leveraged these debates to advance specific political agendas.

Things like the Cowles Commission and the Rand Corp were paying for themselves in terms of increased industrial efficiency. They also helped Governments win wars more cheaply. It was because they 'paid for themselves' that they spread outward into the political world. Reagan was hired to give a type of speech which his audience knew would benefit them in their mutual business dealings whether or not the Government adopted its arguments. By contrast, the Left was talking worthless shite about how White working class people must spend their time either destroying their own employers and their own pension pots or else starve slowly in sackcloth and ashes while apologizing profusely to every disabled Gay African American they chanced to encounter. 

Business lobbies used the rhetoric of efficiency, regulatory capture, and the veneer of academic expertise to lobby for policies that benefited their bottom line.

There was a time when Lefty linear programmers and control theorists and so forth helped Businesses become more efficient. But the Left abandoned sciencey stuff to concentrate on paranoid ranting. Genuine Marxist 'econophysicists' are ignored- especially if they are non-White or female.

Thus worthwhile 'academic expertise' of even the most Lefty Greek or Argentinian mathematical economics ends up benefiting only the 'Law & Econ' school.

The process was at many moments driven by the right and propelled by the power of well-funded formations—from the Olin Foundation to the Federalist Society.

But the Left has no lack of Soros type backers. What they refused to do was develop cogent arguments. Indeed, misology was taken as a marker of ideological zeal and righteous indignation. Thus these cretins came across as cretins determined to be more cretinous than thou. This is an example of 'wasteful competition'. 

But these ideas could not have become hegemonic without key establishment figures on the left. It was President Bill Clinton,after all, who delivered workfare,

which African Americans liked. If you live in a shitty neighborhood, you want the able-bodied to go to work rather than hang around smoking dope and raping you. 

“financial reform,”

as opposed to financial craziness 

and full-throated neoliberalism in international trade.

Which killed off the ghost of inflation and permitted real incomes to rise 

It is only today that a position on money, budgets, and finance that could truly serve justice and democracy is starting to emerge from the wreckage of years when progressives conceded that there was no alternative to the neoliberal paradigm.

No. That happened more than 4 years ago, when Trump took office. Justice and Democracy require punishing China and protecting American jobs.  

The greatest success of neoliberal ideology may have been to make the state appear all the more like its caricature in neoliberal thought: the results provide more proof of the “failure” of the state and of democracy itself.

The greatest success of these cretins would be to make themselves appear to be cretins whose time has come- thanks to COVID & Biden's victory. 

There are three principles that might help us move toward a new legal imaginary.

One principle is enough- take drugs till your legal imaginary looks real sexy to you and you start jizzing in its face.  

Though these do not provide a methodology for scholarship or decision-making, they do represent a principled shift of legal inquiry to counter the precepts of neoliberal thought and the familiar discourses of legal neutrality. They also orient law toward a more democratic future, where the central task is not optimizing wealth and technocratic rule, but creating a more equitable and inclusive democracy and economy.

Which voters will reject quickly enough. 

The first step is a reorientation from efficiency to power. Whereas, for decades, we have been asking what legal regimes are “efficient,” we should instead be asking what regimes produce the kind of widely shared political and economic power that is fundamental to a democracy.

So, follow the example of the People's Democratic Republic of Korea.

One way to operationalize this 'principle' would be to say 'if a shit lawyer is faced with a smart opponent; the shit lawyer should have the legal right to tie up and beat the smart lawyer till he concedes defeat.' This may not be efficient. But it addresses the problem of power. 

More generally, our guys should get to beat the fuck out of people we don't like coz historically stupid people got the short end of the stick while smart people made out like gangbusters.  

This is not to insert politics and law where they were absent before, but rather to ask how we can deploy them toward the freedom of all, not just the ruling autonomy of a few. Markets are not “free”; they are riven throughout with power disparities which are, themselves, products of law and policy.

Nor are Courts or Law Schools or Government Departments. Indeed, these things are expensive. Defund them if they aren't efficient. As for power, guns decide who wields that.  

We construct the kinds of markets we want—and that means that we should embrace the capacity of law and politics to construct a radically more inclusive politico-economic order.

Get rid of academic or other requirements for 'right of audience'. Let lawyers compete the way prostitutes do.  No billing without a b.j should be our motto.

This shift helps make sense of why, for example, a new approach to labor law and anti-trust law should be central to a just political economy program. The revived attention being given to corporate power and anti-monopoly policy points towards a renewed use of public authority to check concentrations of private power. Similarly, this commitment to rebalancing economic power manifests in the fights over worker rights—from their evisceration by measures such as Prop 22 in California, to the efforts to expand labor’s ability to organize and secure benefits for all. Labor law and the law of finance and money are suddenly among the most dynamic in the legal academy today, as LPE scholars have begun newly mapping the state power at the heart of our systems of market coordination, finance, and banking, and theorizing how they might be designed to distribute, rather than concentrate, power.

LPE scholars have shat the bed. They have written risible, ignorant, nonsense. Meanwhile smart people- like those who work for Google- have dispensed with lawyers and taken matters into their own hands. Google's Management, obedient to market forces, has had to break ranks. 

Economics is indeed reshaping Corporate and Government behavior. The Law may catch up. It may not. The thing scarcely matters. Much of its machinery is obsolete or already has been disintermediated. On top of that, you have 'LPE' type cretins who will turn what remains into a repugnancy market. As happened in India, the Courts will have only nuisance value.  

Second, we must recognize the ways that formal equality fails and ask how our laws might cultivate a deeper form of equity—the equality of status and dignity that comes from dismantling historical structures of class exploitation and racialized and gendered subordination.

One way forward is to allow everybody to sue themselves for Caste discrimination- as I have explained elsewhere.  

There are many challenges here. We must unravel how racism, the marginalization of social reproduction, and the coercion of care are entangled with our political economy.

Sadly, these cretins can't unravel shit. 

We must work against the grain of liberal thinking about inclusion that has deeply marked law and mainstream legal theory, and simultaneously against an older tradition of political economy that encoded a racialized and gendered conception of the nature of production and the economy.

But you are too stupid to do so. Anyway, I remember reading shite like this 30 years ago. If these cretins couldn't do it then- when the Economy was simpler- how will they do it now? Their mean I.Q drops decade after decade. Many may already be suffering from incontinence. Others may have regressed yet further and are currently curled up in a fetal position- protesting Patriarchy after their own fashion.

We must theorize the relationships between the carceral state and capitalism and ask how we can constitute democratic publics in a global system that was designed for exploitation and exclusion.

Why? When did doing stupid shit like that help anybody? Smart people are finding ways to cure cancer and do quantum computing. Guys like you should give up Academia for finger painting.  

We need to bring these insights to bear upon a constitutional tradition that enacts the very “encasement” of the economy to which we are opposed—all in the midst of a legal culture that celebrates tactics like litigation over strategies of movement-building and legislation. But the generativity of this work is also clear, as scholarly debates about reparations, dismantling the carceral state, and intersectional strategies for labor organizing command a new conversation within and beyond the academy.

Kamala Harris should pay reparations on behalf of her slave owning ancestors to herself. The carceral state is expensive and may get dismantled by itself. Intersectional strategies can be used by Union Busters by hiring bi-racial transpeople to give b.js to Labor organizers and then threatening to tell their wives. 

But how is this a 'new conversation'? The thing is old hat. It may have been funny when South Park did it- but that was four or five seasons ago. 

Third, we must limit the familiar anti-politics of legalism and technocratic decision-making through a commitment to democratic politics.

The vast majority keeps telling you to shut the fuck up and do something sensible with your lives- but you won't listen. 

Democracy has to mean more than the manufacture of public opinion alongside elections. At its heart it means that majorities set the country’s direction, not the constitutionally gerrymandered pseudo-majorities of the senate and electoral college or the conclusions of neoliberal trade theory.

Bring back Jim Crow. The majority of the US population is White.  

Democracy also means deeper political empowerment, such as the capacity of communities to mobilize against the hoarding of political decision-making power in wealthier (and often whiter) constituencies.

How about the Whites unite to take back the country? What's to stop that outcome? LPE scholarship?  

How can we counter the power of technocratic elites without abandoning the need that any democracy has for expertise?

By being smart, not by talking bollocks. 

And how can we build more participatory and inclusive political institutions without hampering the exercise of state power, and without simply reproducing class and racialized biases?

By saying and doing smart things, not talking bollocks incessantly 

As we reformulate the central question in fields such as administrative law, new campaigns for community benefits agreements, wage boards, and participatory budgeting are taking root.

Indeed. But they are too costly in terms of time and effort and compliance. Thus they will quickly turn to shit just as similar schemes turned to shit in the past. This time, it will be quicker because the pace of Economic change has picked up. 

This is not to say that smart people can't set up 'hackathons' and quickly pool data and analysis and figure out novel solution concepts. But LPE can't be part of that type of 'spontaneous' order-creation because of its roots in Grievance Studies of a paranoid Nineteenth Century sort. 

Thursday 25 February 2021

Mithi Mukherjee's 'justice-as-equity'

Empires can be good things in that they reduce the per capita defense cost and provide cheap protection to minorities and permit lower real interest rates. But Empires can break up very quickly and chaotically. The question is how do stable Nation States emerge out of that hot mess?

With hindsight, we can say
1) Nations should be unitary, like Israel, not 'consocational', like Lebanon. If that unity is based on Religion- as India's unity ultimately is- so much the better. There may be contested margins, but the core is stable.
2) Tolstoyan, or Quaker, or Gandhian, or Wilsonian, or Marxist, or Ordoliberal, 'Human Rights based this or that', is worthless bullshit. Indeed, all 'discourse' is worthless. Life is economic- that is ergodic, not hysteresis ridden. Shadows have no life of their own. They disappear as communities turn back to the task of making choices under the noon-tide Sun of scarcity. 

Ashok Upadhyay has reviewed Mithi Mukherjee's 'India in the Shadows of Empire' in Beacon Magazine. Apparently, he finds some new relevance in that worthless tome because Modi is a Nazi- right?- and Nazism is so not cool.
Seventy years after Independence, discussions on the state of the nation, nationhood and the State itself have one underlying belief. It is taken for granted that the Indian State as it came into being in 1947 and especially after the Constitution gave it a foundational structure, represented the aspirational culmination of the freedom struggle; a Nation-State with a philosophical system embedded in the Constitution that mirrored, gave expression to, the dreams of a people just emancipated from colonial yoke.

This is nonsense. Lawyers know that large portions of the Indian Constitution are based on the 1935 Government of India Act. The other significant elements are to be found in the Nehru Report of 1928.

It is true that the 1935 Act was imposed because Indians could not agree on anything till the Muslims, as represented by the party which monopolized their votes in 1946, went their own way. Furthermore, initially, the deliberations of the Constitutional Assembly gave more weight to the arguments of the Princes and the minorities simply so as to allow Sardar Patel to consolidate the de facto power of the Indian Union. However, this was just eye-wash. What prevailed was the views of the Hindus who were busy taking over the offices previously occupied by not just White people but also Muslims under the previous system of reserved seats. 

Exactly the same thing was happening in other ex-colonies. Constitutions didn't matter at all. They could be disregarded or amended and then disregarded. No 'philosophical system' was embedded in any Constitution promulgated around that time- though Burma's Constitution was more Lefty because fewer people worked on it- because Constitutions are essentially Juristic and pertain to boring administrative details- e.g. salaries and pensions and terms of service for Civil Servants.  

Freedom was our birthright, the Preamble and the Directive Principles guideposts to a future Indians had only dreamt of.

Fuck off! Ambedkar described his contribution to the Constitution as 'hack work'. Since Indian lawyers are boring and loquacious, the Indian constitution was very very long and very very boring. It had nothing to do with 'dreams', though it could send you off to sleep quickly enough. 

Why, even the icons of the nation-sate–the flag, the Asoka pillar, the chakra were iconic signifiers of the emancipatory process.

No they weren't. They were boring and looked like shit. Ashoka died more than 2000 years ago. He didn't emancipate anything. He was an Emperor.  

It did not seem strange then, or even later, that the freedom struggle, so momentous and historical in its grounding in non-violence and mass mobilization,

that it failed completely 

should have resulted in such a bathetic outcome of a Transfer of Power?!

The Gandhian freedom struggle failed. There was a risk that parts of the country which had become ungovernable during the War would become so again. But people like Vallabhai Patel were as energetic and as good at wielding the big stick as any Viceroy. Indeed, they were rather more effective. Muslim and Communist militants were beaten, killed or locked up. They dared not wag their tail. Meanwhile, Hindi- not Hindustani- was pushed through as the official language of the Union (Gandhi's opposition to this was one reason Godse said he had to kill him)- reserved seats for Muslims were abolished and a Directive Principle re. cow protection was introduced. The Hindus had won and they wanted everybody to know this.

True, at the time, Communism seemed a magical way to achieve very rapid economic growth and military power. Also, Hindus wanted to get rid of stupid caste restrictions so as to rise up. So 'Secularism' was considered a good thing. Most importantly, educated Indians agreed with Nehru that Science, not Gandhian shite, was what the country should invest in. 

If the freedom struggle entered modernity’s books for its unique blend of mass power and animas then so did the avuncular way in which the family silver and the keys to the estate as it were, were handed over to the servants from the sculleries.

Perhaps 'animus' is meant. But power wasn't handed over to 'servants'. It was handed over to lawyers who were descended from Dewans and who represented the Hindu majority.  

The crowning irony was that the elevation of the subjects to the position of master was blessed by the leading representative of the very sovereign that Indians had fought against.

This was not an 'irony' at all. It was what had happened in Ireland and Egypt and so forth. George III had no difficulty giving a courteous welcome to the diplomatic representatives of the victorious  American Revolution.

So was 1947 the outcome of a national liberation? An Indian revolution?

No. There was a peaceful transfer of a power which had already been considerably diluted. This process continued till India became a Republic, a little more than 2 years later.

Many observers of independent India

are as stupid as shit. They have nothing interesting to say-  

have commented upon the pervasive influence of the colonial raj on post-Independent government practices; the lal-batti culture, the President and the governors in states.

But there was continuity between the practices of the Marathas and Moghuls and so on and those of the British. However, post-Independence practices were very different from what went before. The administration was not subject to the authority of the Crown in Parliament. It was wholly indigenous and independent. So what if motor cars, as opposed to magic carpets, were still used where roads existed? The fact is plenty of District Commissioners had to perform the tours of inspection on horse-back or elephant-back.

But the assumption is these are the symbols of power too tempting for most politicians and bureaucrats to abandon.

Fuck off! The Brits had plenty of 'symbols of power'- top hats and frock coats and medals and decorations signifying knighthood or whatever- which the Indians thought ugly and stupid. 

They are remnants; at the end of the day, they can be dispensed with, given some element of political will; what is important to keep in mind, so conventional wisdom goes, is that they are trimmings on an essentially Indian State, a statehood whose aspirational foundations are uniquely Indian.

But other states in the region have very similar 'aspirational foundations'. 

That idea of a uniquely Indian state informs discourse on both sides of the political spectrum;

nothing informs essentially foolish discourse 

the nationalists assume the state, a Nehruvian construct

though Nehru constructed nothing. He presided over the centralization of power because that is what exigent circumstances- or, the interests of the Hindu majority- required

with a sham secular inflection; the left assert the state is a superstructure representing Indian capitalism and increasingly, after 1991, global, neo-liberalist policies.

India isn't secular. It is Hindu. Non-Hindus would love to break away from it. Hindus want to get richer. They think, as does everybody else, that Leftists have shit inside their brains. That's it. That's the whole story. 

Both sides agree on the tainted character of the Indian state

but are regarded as a stinking pile of poo by everybody else. Who gives a fuck what they agree about?  

but do not doubt its epistemological break with its former colonizing master.

There was no 'epistemological break'. There was a political break. It is not the case that British degrees were no longer recognized in India. On the contrary, G.o.I sent scholars to British Universities. However, it stopped taking orders from the Crown in Parliament and, a little later, the Privy Council was replaced by the Supreme Court as the final Court of Appeal.

In fact one historian traces the origins of what she calls the “Righteous Republic” to the readings of ancient texts by the “founding fathers”; never mind that in their study and incorporation of what they considered relevant to the upcoming republic, they tip-toed around the seminal influences of the Mughals on political and social formations.

 There was no 'tip-toeing' at all around the issue of teaching the Muslims their place in the Republic of India. The message was loud and clear. If you don't like it here, fuck off to Pakistan. The notion that Muslims were coddled is a myth. No doubt, hard working and honest Muslims held high positions- but this was because they were hard working and honest. They were producing 'surplus value' for the State. The same was true of corrupt sycophants- they were kept around because they made money for you and licked your arse, though no doubt their Religion made them a cosmetic hire.

Mithi Mukherjee cuts to the heart of the matter; how do we identify the nature of the Indian State?

By noticing that the thing has always been run by Hindus for Hindus though, no doubt, honest and hard working non-Hindus can rise by merit. True, Hindus lie about this from time to time. But then Jinnah too lied about Pakistan treating non-Muslims as equal citizens. Indeed, no country says 'we fuck up our minorities' even if it is fucking obvious that they do nothing else.  

More to the point, what were its foundational principles, the epistemologies that fashioned its being as an instrument of power in a free India?

'Epistemologies' did exist. Gandhi had one but Nehru told him it was shit. The Communists had one- but it too was obviously shit. Hinduism could be said to have an epistemology. But it cashes out as common sense so nobody bothers to invoke it- unless they are a Katju level cretin. 

Power, the Hindu says, arises from Saam-Daam-Dhand-Bhed.  Persuasion- Bribery- Beating-and 'Divide and Rule'. 

As a historian she is not content to brush off the “Transfer of Power” as an accidental phrasing,

Historians should focus on facts. The Brits had transferred most powers to the Provinces by 1937. Ten years later they handed over power over Defense and Diplomacy. This Transfer was done in a perfectly legal and constitutional manner. 

a sort of logical conclusion of a non-violent freedom struggle in which the oppressor finally sees the light of day and is gracious enough to take it on the cheek and move on ruefully recognizing that the sun has finally set on the empire.

The British also transferred power to those- like Aung San in Burma- who were ready to fight them with bullets. 

In that ‘Transfer of Power’ Mukherjee locates the imperial sovereign handing over power to a shadow of itself.

Very true. Indians are shadow of British- innit? Shadows be dark. Also they are two dimensional. Mukherjee herself if probably a shadow of some nice White lady. Sadly, that White lady can't hand over any power to poor little shadowy Mithi. This is because shadows have no will of their own. 

In her book, India in the Shadows of Empire, the historian attempts to lay bare the founding principles of the new Indian state after 1947 as a legacy of the imperial past seemingly overturned.

Why do anything so pointless? The fact is the British Labour Party could have appointed Col. Wedgwood, not Olivier, Secretary of State for India- in which case the country would have got Dominion Status in 1924. Gandhian stupidity, or cowardly realism, prevented this. Still, the INC had stated what they wanted very clearly in 1930. They got it- at the price of parting with Muslim majority areas. This has nothing to do with an Imperial past or a monarchical past though no doubt that past has not magically vanished from India.

Her contention is that the political philosophy of the new state is no different from the philosophy of the imperial power that ruled over India since 1857.

Which proves she is as stupid as shit. The fact is the political philosophy of Britain in 1857 was completely different from the political philosophy of the Labour Party which ruled Britain from 1945. How the fuck could Indians have a political philosophy which disappeared in England in 1867?  

If this is the first radical break from extant scholarship

produced by shitheads whom nobody pays any attention at all to 

that viewed the new state as an experiment in fragmented modernity, the second is that the imperial epistemology itself grew out of a long struggle with what she calls the colonial philosophy of the East India Company, a discourse held by the likes of Warren Hastings that eventually led to the 1857 uprising.

Sheer nonsense! Warren Hastings, in 1818, said ' 'a time not very remote will arrive when England will, on sound principles of policy, wish to relinquish the domination which she has gradually and unintentionally assumed over this country and from which she cannot at present recede.

However, Hindus- like Raja Ram Mohan Roy and Dwarkanath Tagore- lobbied Westminster to allow unrestricted British immigration into India. They felt that only the Brit could defend the Hindu from the rapacious Muslim. Gandhi, writing in 1939, said that the Punjabis and Gurkhas and Indian Muslims would overrun India. The Hindus wouldn't be able to defend themselves. They may be the majority but they were as weak as shit. That's why Gandhi said the Brits must hand over power only to the INC. In particular, they must hand over the Army because otherwise the non-Punjabi, or non-Gurkha, Hindu would be at the mercy of the meat-eaters. 

In a fascinating blow-by-blow account, Mukherjee traces the dialectics of that struggle for epistemological supremacy that eventually led to the assertion of the monarchy and a new imperial discourse of rule determined to ensure that 1857 would never happen again.

This is utterly absurd. The Brits ensured that natives would never again have charge of artillery. They changed the pattern of recruitment and ensured that officers took responsibility for the morale of their men. They built railways so that they could quickly crush any Mutiny or other insurrection. Nobody bothered with 'Epistemology'. Killing rebels quickly and then fucking over their families was the way to go.  

Her distinction between the ‘colonial’ and ‘imperial’ discourses is crucial to the understanding of the foundational profile of India’s post-1947 statehood.

Nonsense! It is utterly useless. If Dadhabhai Noaroji, who lived under both Company Raj as well as direct Imperial Rule, found no difference between them then a bird brain like Mithi can't discover the opposite. All she can do is tell stupid lies. 

For her, the colonial discourse epitomized by the East India Company, and elaborated by Warren Hastings at his trial, underlined territorial expansion and subjugation by force of the colonized principally for commercial gain.

This remained the test for annexation. If the thing couldn't 'pay for itself' then it wasn't done- unless the French were expressing an interest, in which case geopolitical considerations prevailed.  

The discourse of the ‘imperial’ was positioned as a critique of the colonial discourse’s narrow goals by reference to justice based on a de-territorialized notion of natural law that was supposed to speak on behalf of the peoples of India.

Sheer nonsense! If 'natural law' does not exist in England- where as Sir Edward Coke pointed out ,Law is 'artificial reason'- then how could it do so in India? Plenty of smart Indians were lawyers. Why did none of them ever frame an argument in terms of 'natural law'? The answer is because the Courts recognized no such beastie.  

Mukherjee traces the origins of this imperial discourse by a fascinating examination of three ‘moments’ in British Indian history. The first is the impeachment trial of Warren Hastings in the last two decades of the eighteenth century that she claims Indian historians have ignored.

Because it failed. The thing was a parochial matter- a deeply corrupt Parliament was fighting over the perks of office- which had no influence at all on British political history. The only time someone refers to it is to explain why the Brits stopped impeaching people two hundred years ago. Now, even the Americans, can see that it is a silly thing to do.  

The trial offered Edmund Burke the platform for the most lucid expression of what would become an imperial discourse on sovereignty.

Burke's essay on the French Revolution is remembered. Nobody gives a shit about Sheridan and Burke's attack on Hastings. Indeed, few recall Mill's attack on Governor Eyre though Britain now has a large and very successful Jamaican origin population who have had a big cultural impact on the 'home country'.  

The second moment in the development of the imperial discourse comes with the establishment of the Supreme Court in India in 1774

But that 'Supreme Court' was useless. It could not check the Executive at all. Few now remember there were 'Supreme Courts' in Madras, Calcutta and Bombay. They were abolished in 1861 and replaced by High Courts. But you could always fight a case all the way to the Privy Council. This only changed after 1950 when the present Supreme Court was established.  

Britain itself only got a Supreme Court a dozen years ago on the insistence of Brussels. Perhaps the thing will be scrapped. 

and the third, the uprising of 1857.

This was important only in a negative sense. Propertied Indians came to see that the alternative to the Brits was anarchy. 

The British government back home learnt the lessons of 1857 well.

What lesson? Don't let the natives get their hands on artillery. Kill them if they become fractious.  

They learnt that Indians were capable of uniting even under a weakened Mughal Emperor against the firangi,

Nonsense! They saw that smart Indians were loyal Indians. The not so smart were slaughtered.  

that force alone would not help sustain their hegemony.

But force alone did sustain their paramountcy. Hegemony is meaningless Gramscian shite.  

All sources of national unity and cohesiveness had to be dismantled and the foreignness of British rule sublimated in a new overarching concept of sovereignty by a de-nationalized, de-territorialized monarch who would stand above all law in the dispensation of justice to all the peoples of India.

This did not happen. Victoria did become Empress, because her daughter had become an Empress, but she remained territorialized as the Queen of England equally subject to the Crown in Parliament. Britain was sovereign. India was not. The Crown in Parliament could barter away Indian territory to anybody it pleased. By contrast, it could not hand over any piece of English ground to anybody at all. Nor can it monkey with the Scottish legal system. Parliamentary sovereignty is limited in ways which only apply to Britain itself.  

That was the imperial project. That dispensation was to come through the discourses of justice: justice-as-equity and justice-as-liberty.

This is sheer fantasy! Equitable remedies exist in English Law but the gate of Equity was closed in the Seventeenth Century! Justice is not Liberty. It may uphold rights which are linked to Liberty but then again it may not. 

Justice under the Raj was differentiated by race and hereditary entitlement. Princes enjoyed sovereign immunity. Whites had the right to Jury trial by a 50 per cent White panel. Some landlords were immune to arrest on their estates. Some Indians, not others, were subject to corporal punishment. Women, of course, had greatly inferior rights. Though slavery was abolished, the legal position of 'bonded labor' remained unclear.  

Another, smarter, reviewer- Prakash Kumar writes- 'Neither the Company’s colonial discourse of sovereignty over the people of India nor the imperial discourse of justice could fend off the eruption of the 1857 revolt. 

Why? It is because 'discourse' is completely ineffective against bullets. However, that revolt could have been easily avoided if the artillery had been kept out of sepoy hands and the native officers hadn't been so old and out of touch with the young recruits. 

Chapter 3 documents the emergence of another set of justifications of colonial rule. The two new discourses of “justice as equity” and “justice as liberty” after the Queen Victoria’s Proclamation of 1858 built a somewhat different type of defense of the empire (p. 74).

No it didn't. The only type of defense that mattered was keep a strict watch on the sepoys and having lots of White troops with artillery around to kill mutineers and fuck up anyone foolish enough to help them. 

Why does Mithi think that saying things in English will quieten down Ind's revolting masses? Has it worked for her? Does she not say 'Boo to Modi' on a regular basis? Yet, she must have noticed, Modi rules. Clearly 'discourse' is worthless. 

 The former gave to colonial rule the role of mediator in the vision of India as a society of warring communities. 

Which 'communities' were warring in India at that time? None at all. The British weren't supposed to mediate anything. They were supposed to kill or lock up (or extern in the case of White people) any mischief maker regardless of creed. It wasn't till the Viceroyalty of Curzon that there was any talk of balancing the interests of different communities. But that had a lot to do with internal British politics. 

The latter seemed to promise some form of self-government to the people of India in a hazily defined, remote future when the latter would be ready for it, setting the context for an elaborate definition of a pedagogical mission for the colonial state.

No. This was merely the Whig theory that representative institutions should raise and spend taxes so as to benefit local communities. Gradually such municipalities should link together and form the basis of regional, and later national, self-governing bodies. 

This had nothing to do with 'pedagogy'. The fact is the Presidency Universities were merely examining bodies. Colleges already existed. The thing was a case of Supply and Demand. The Indian Education Service was set up because Indians wanted higher standards in the schools they were paying for. But the I.E.S only functioned for some 25 years- from 1896 to about 1922. It had no influence on the rising generation. Edmund Candler's 'Sri Ram, Revolutionist' is the epitaph of that type of stupidity.

 These new discourses were distinctive in that they were lodged in the person of the monarch 

This is wholly untrue. It had been very clearly established that the Queen was wholly subordinate to Parliament. 

and not in natural law

Natural law was irrelevant. English Law was what was provided.

 as the prior discourses of imperial justice were. 

No. They too were couched in the language of customary law supplemented by English Law.

Justice was now going to be delivered to the Indian people as a personal gift of the monarch.

The monarch's personal gift could only extend to the offer of employment as a Munshi. She couldn't even bestow an English title on an Indian Prince. 

The same reviewer writes- Chapter 4 makes an important argument that the moderate stream of the Indian National Congress, disavowing resistance as a means to freedom, represented imbrication of the anticolonial movement in imperial discourse. 

Indians realized that the British Navy ruled the Seas. True, portions of the interior could drive out the Brits but the littoral would always want them back in one shape or another so as to secure the benefits of International Trade. The question was whether India could pursue a 'Listian' (i.e. economic nationalist) program within the Empire. The same question faced other Colonies though, where English speaking stock predominated, there was no question of severing ties to the Monarch as symbolizing the mother country. This was not the case for the Boers or Catholic Irish or the Indians and other non-Europeans.  

India's problem was that it was stagnating economically, losing f.d.i share and failing to attract the best international entrepreneurial talent. Apart from the Tatas, its own indigenous capitalists were under-educated, under-capitalized, and quite understandably loathed as jumped up usurers or swindling brokers. All romance had fled Ind's coral strand. It was a frumpy, bureaucratic, shithole punctuated by elephants and maharajahs which were smaller and squatter than those to be found in Africa.

Naoroji represented the old fashioned mid-Victorian Radical. He was the first M.P the Indian Parliamentary Committee managed to get elected. But the next one was the Tory Imperialist Bhownagree. Naoroji himself was happy to rub shoulders with Rosa Luxembourg & Karl Liebknecht at the Amsterdam Conference of the Second International. Shyamji Krishna Varma, some 30 years younger than Naoroji, backed the wrong ideological horse in Herbert Spencer. The future would belong to those of the Gaddar or Jugantar revolutionaries who turned leftward rather than Hindu nationalist. Or so it seemed at that time. Now, Savarkar stands vindicated.

The Congress seemed to demand freedom as an act of charity from the monarch.

No. The monarch had no power. Congress was lobbying the Crown in Parliament. 

 The ultimate goal of Home Rule by the Congress revealed the party’s limited political aspiration of citizenship of the empire. 

Prior to the First World War, being part of an Empire meant lower cost of external, particularly Naval, defense. Then the Kaiser got pissed coz his cousins had bigger Empires than he did and fucked up Europe. At a certain point he said the War would have been worth it if the Brits lost India. The fellow was a cretin. The Indo-German conspiracy failed. Then came the Bolshevik Revolution. By 1921, the Chief of the British Army Staff was saying he hadn't enough troops to hold even England, let alone Ireland and India and Egypt and so forth. Thankfully, Gandhi surrendered unilaterally in 1922 and so Hindus and Muslims parted company and the Brits got to stay on because the Indians couldn't agree as to how strong or weak the Federation should be. Then the Germans went crazy again and Britannia emerged too weak to take up its old role as Ruler of the Waves. So, a Hindu India and a Muslim Pakistan and a Buddhist Sri Lanka had to go it alone, all fucking over their minorities to a greater or lesser extent. Why? That's what Nationalism means. Getting rid of Empires comes at a high price for some- as Tagore warned. 

Mukherjee implies that the later demands for dominion status and self-government at the Round Table Conference were also largely anchored within the same framework of demand for justice to Indians. 

Mukherjee is as stupid as shit. India was doing what everybody was doing. The lesson of Ireland was clear. You could get independence in the Twenties if you paid the price of partition on the basis of Religion. But Ireland wasn't doing well economically in the Thirties or Forties or even the Fifties. Its population was declining, despite married women having to have babies like crazy to keep the Pope happy, till the Sixties.

Why is Mithi obsessed with 'demands for justice to Indians'? Perhaps she believes that in the good old days, when Bengal was golden, her ancestors would make a beeline to the closest White dude demanding justice in the shape of first some nice hilsa curry and then some nice rosgulla and then a cushy desk job in Writer's building. 

But an insurgent discourse of “freedom” as against “justice” also gained a foothold, from 1893 to be precise. 

I suppose the lady means the cow-protection riots. The Viceroy did say this marked the beginning of mass politics for the INC. But, those guys were seriously not that into bovines. 

This was “an alternative discourse of legislative freedom” that demanded for Indians “the right to make laws for oneself”.

Which the Brits, quite sensibly, were giving scope for save where it conflicted with vested interests back in Westminster. So this was a pure 'Listian' economic conflict though, given India's size and diversity, it was always possible to show that any economic demand made by the INC would adversely affect some larger group. But that remains true to this day. 

This rise marked the rupture between the demands for imperial justice and legislative freedom. 

in the same sense that it marked the rupture between the demand that Queenji sit on my face and the demand that I be made Prime Minister. 

The author highlights the significance of this competing discourse and the latter’s autonomy that has been somewhat simplistically passed over as the “extremist” program.

The extremists, quite reasonably, wanted to kill Whitey, take his cool stuff and then...urm...well, there's bound to be other people who need killing and they are bound to have cool stuff too. 

The big problem with getting rid of an Emperor is deciding who to kill next. Suddenly, it dawns on peeps that it could be them. Suddenly Imperial 'Justice' and 'Liberty' don't looks so bad.

The latter principle (justice as liberty) was the cornerstone of the “civilising mission” of British rule.

There is a wide difference between the French meaning of this term and the British usage. Though there was an 'Occidental' party in England during a portion of the Nineteenth Century, it was the 'Orientalists' who prevailed. The Raj based itself on indigenous institutions though no doubt it could aim at reform of a humane and rational type. But there were severe limits to such efforts. 

As Mukherjee notes: “Justice as liberty…took on the form of a teleology that was based on the premise that whatever India may have been in the past or continued to be in the present, it could still move toward a future of liberty and, indeed, even freedom.

But this might never happen. Teleology arises only where there is an inevitable outcome- a final purpose which must be served. The British made no such assertion about India. Even the Labour party agreed that if- as happened in 1922 when Gandhi threw in the towel- India was unready for self-rule then the Raj had to stay in place.  

The teleology of liberty gave rise to a new discourse of imperial pedagogy …

No it didn't. 'Imperial pedagogy' meant shite taught at Haileybury, or- later on- the Indian Institute at Oxford or other Universities were ICS probationers completed their training. These guys had to mug up laws and languages and so forth. They weren't expected to listen to tosh about 'teleology'.  

This was the more precise articulation of what also came to be known as the ‘civilising mission.’ (75) Mukherjee pursues this idea relentlessly: if the mission of the imperial project was motivated by a sense of mission, “…a point of termination inevitably became a part of this mission…”

Fuck off! The ICS, like the IAS, does not say anything about its 'point of termination'. Sad. It would be great if they were indoctrinated to all kill themselves by the year 2030 so that we could have a 'babu mukth Bharat'. 

And she concludes that it was this discourse of justice as liberty “that allowed the British Empire to convert—with the consent of the of the Indian National Congress—its forced departure from India in 1947 into a voluntary ‘transfer of power’ in which the first prime minister of India received his oath of office from Mountbatten, the last Viceroy of the British Empire in India.” 

Mountbatten was first sworn in as Governor General by the Chief Justice of the Federal Court before administering the oath to his Cabinet.

If the discourse of justice-as-liberty then cast its shadow

it didn't. Mithi is making this shit up. 

over a “freedom” that really amounted to a transfer of power, blessed by a representative of the Queen, then an even longer shadow was to darken the formation of Indian state.

& if the discourse of anal intrusion cast its shadow over the American Declaration of Independence than QAnon is right. A longer shadow of buggery and pedophilia darkens the continued operation of every branch of the Federal Government. Let's go invade Capital Hill! Wake up sheeple! The Feds be fucking our kids in the ass!

It is in this investigation that Mukherjee exhibits forensic skills.

Fuck off! She is as stupid as shit. Her skills are fecal not forensic. 

The imperial discourse of justice-as-equity

didn't exist. Britain asserts Parliamentary sovereignty. Lots of lawyers are Members of Parliament. They know that English law is not 'justice-as-equity'. It is 'artificial reason'.  

was built upon two hegemonising (and unethical) assumptions: that India was essentially an amalgam of warring communities and that it therefore required the firm hand of a monarch standing above sectarian interests to maintain the peace between those fractious communities.

Rubbish! Britain could have sent some Royal Duke to India to rule it in perpetuity. It did not do so. Why? Monarchs tend to be shit at running things. It is better to have a professional Army and a professional Civil Service and a professional Judiciary. True, parliamentary oversight of distant Colonies involves much tedium and time taken away from considering the problems of the home country. But, so long as the Colonies 'paid for themselves' with something left over, perhaps that tedium was worthwhile.  

Justice-as-equity did not mean, as it did elsewhere even in England’s Common Law Courts, that Indians would be subject to a common law standing above all.

WTF? Since 1873, all courts offer all petitioners every remedy available. India never had a separate Court of Equity or Canon Law so why bring up the subject?  

It meant that equity was represented in the figure of the monarch that stood above all law.

But England decisively rejected this notion in the Seventeenth Century! James I found he could not even hang a robber caught in the act! A properly constituted Court had to first find the fellow guilty.

In subsequent decades the gate of equity was shut, the 'divine right of Kings' was denied, Charles I was executed, and- later on- his son James II was chased out of the country. There was a 'Glorious Revolution'. England was a 'limited monarchy'. The Queen reigns, she does not rule.  

The roots of justice-as-equity were located in sovereignty.

Nonsense! Equitable remedies exist against unjust actions occurring in far away places over which no sovereignty has been asserted. There is a 'Command' theory of Law which may invoke sovereignty but it isn't the only theory around.  

But hold it! Sovereignty did you say? That means political coercive power, right? Mukherjee offers a different view. “The role of political discourse” she says. “is often ignored in a discussion of the question of sovereignty. In the dominant approaches, the issue of sovereignty has been studied overwhelmingly in terms of the sovereign’s will and his power to coerce. ..Behind these approaches is an understanding of sovereignty that is exterior to discourse…However ,,,modern power operates as much through discourse as through violence. Indeed, it is as truth that power in the modern world presents itself.” (183. Emphasis added)

It might be nice to believe this fairy tale- but only for a moment. As we know 'truth' is always changing because facts change, Science advances, attitudes and beliefs adjust. Does this mean that the laws must change or be interpreted differently? Consider what that would mean in practice. Nobody would know whether they still have the same Hohfeldian rights and obligations that they had yesterday or the year before. Why? Because some Scientist in some far away country has made an astonishing discovery. 'Truth' as what Aristotle called 'Endoxa' has changed. Justice-as-Equity now says something different from it did yesterday. 

This a world which would rapidly turn to chaos. It is better to have 'robust' laws and stare decisis type Justice. Otherwise we might as well return to the days of the 'General Eyre' where everything is inquired into and nothing is known in advance about the outcome.  

Really now, if that rings a bell in your befuddled mind it should. For Mukherjee adds: “In a democracy sovereignty depends as much on the ability of the state to persuade as the ability to coerce…It requires an infrastructure of persuasion as much as an infrastructure of coercion.” (183) If that rings some more bells it too should because what else is happening tight now in the Indian republic but the exercise in persuasion that goods days are around the corner once we stop slaughtering cows?

Mithi has rung Upadhyay's bell but good. The guy is having orgasm after orgasm. Why? Infrastructure of persuasion is shoving its dick up his arsehole and stimulating his prostate gland. Will he thank Modi for this? No. What a mean fellow! 

How did the British after 1857 deploy the justice-as-equity principle for what was clearly an unethical legitimacy?

They didn't. They weren't stupid. They shot rebels and took away their property. This may have been 'unethical' but this is what legitimated their power. How so? Well if you were loyal to them and some guy grabbed your land, then- if you paid the court fees and the lawyer's fees and so forth- you'd get a judgment which the Brits would, after your bailiffs had failed, themselves enforce. If the guy who robbed you tried to fuck with the Brits, they would kill him and fuck over his family.  

By portraying India as a people grounded in divisiveness – caste, class – effete and barbaric cultures and practices, religions whose civilizational glory had long faded. British rule invested India – a meaningless entity by itself – with a cohesive idea of itself.

No. The Brits occupied and ruled India. They didn't have to portray shit. On the other hand, some British novelists portrayed fairies and elves and dragons and witches and wizards. Nobody thought this meant the British ruled over the kingdom of the fairies. Indeed, most people did not even believe that fairy-land existed.  

Disraeli invented a ‘legal fiction’

No. Lawyers deal with 'legal fictions'. Disraeli was a novelist who, like Bulwer Lytton, did well in politics. He offered the title of 'Empress of India' to Queen Victoria because her daughter was the new Empress of the Germans.  

by constructing a narrative based on the idea that the ‘native’ peoples had invited the British to rid them of their suffering from tyranny and to protect their property and rights. “It was as subjects of the principles of of ‘liberty, equity and justice’ that Indians became the subjects of the British Empire. Significantly the reverse was also true: it was as subjects of the British Imperial monarchy that Indians would become subject to the principles of liberty, equity and justice. In other words, the historical relationship of Indians as subjects to these principles came to be mediated through the figure of the Queen.” 

No it didn't. The Queen wanted some Indian Princes to be created Peers of the Realm. She was told to shut up. It is true that some very poor people from Champaran, hearing that the King Emperor was hunting in the Terai, came to present a petition to him. They were told to fuck off. Indian lawyers, by contrast, knew better than to appeal to the Monarch. So did Indian Princes. What Mithi says is pure fantasy. Indians weren't subject to principles which held no sway in England itself. That's why England had Chartists and, later on, a Labour Movement and a Suffragette movement and so forth.  

The hegemonizing principle worked well.

It didn't exist. 

It was presaged by the Queen’s message to the Delhi Durbar of 1877: “ ‘We trust that that the present occasion may tend to unite in bonds of yet closer affection ourselves and our subjects, that from the highest to the humblest all may feel that under our rule the great principles of liberty, equity, and justice are secured to them.’” As Mukherjee reminds us, “…That even as the Queen talked of her relationship with her subjects in personal terms as ‘bonds of affection’ her speech also revealed that her relationship with her Indian subjects was to be mediated by the principles of liberty equity and justice. The foregrounding of these principles as the foundation of the new state and the source of its legitimacy revealed a determination to construct a discourse of governance.”

Wow! Mithi must think the sun shines out of Queenji's arse! But she is mistaken if she thinks there was a 'new state'. There wasn't. The British Crown in Parliament had been paramount in India both before and after 1857. The form of that paramountcy was changed. The Queen sent a message which was written for her- with an eye to internal British politics (in particular, the fractious Irish members of Parliament) rather than with any intention to sway Indian hearts and minds.  

The relationship established by the sovereign with her subjects–discursive and personal–worked with the Indian National Congress when it was established in the late nineteenth century.

Nonsense! The INC knew very well that Westminster was supreme. There may have been some backwoods Chieftain who thought Victoria exercised power in the same way that he exercised power. But even such noblemen were brought gently back to earth if they started babbling about visiting Victoriaji. 

I recall a story about the old Chogyal of Sikkim toasting an American diplomat with the words 'Long life to your President and his beautiful wife Queen Erizabet.' It was pointed out to him that the American President is not in fact, ex officio, the husband of the British Queen. However, the Chogyal brought out a picture of Queenji and pointed out that she had a smokin' bod. Hit it and then, by all means quit it, but do hit it. 

The INC came into being in Mukherjee’s view precisely as a response to the justice as equity principle.

No it didn't. If it had, it would have said so. 

W. C Bonarjee wrote in 1898

It will probably be news to many that the Indian National Congress, as it was originally started and as it has since been carried on, is in reality the work of the Marquis of Dufferin and Ava when that nobleman was the Governor-General of India. Mr. A. O. Hume, C. B., had in 1884, conceived the idea that it would be of great advantage to the country if leading Indian politicians could be brought together once a year to discuss social matters and be upon friendly footing with one another. He did not desire that politics should form part of their discussion, for, there were recognised political bodies in Calcutta, Bombay, Madras and other parts of India, and he thought that these bodies might suffer in importance if, when Indian politicians from different parts of the country came together, they discussed politics. His idea further was that the Governor of the Province where the politicians met should be asked to preside over their deliberations, and that thereby great cordiality should be established between the official classes and the non-official Indian politicians. Full of these ideas he saw the noble Marquis when he went to Simla early in 1885, after Lord Dufferin had in the December previous assumed the Viceroyalty of India. Lord Dufferin took great interest in the matter and after considering over it for some time he sent for Mr. Hume and told him that, in his opinion, Mr. Hume's project would not "be of much use". He said there was no body of persons in this country who performed the functions which Her Majesty's Opposition did in England.

The newspapers, even if they really represented the views of the people, were not reliable and as the English were necessarily ignorant of what was thought of them and their policy in Native circles, it would be very desirable in their interests as well as the interests of the ruled that Indian politicians should meet yearly and point out to the Government in what respects the administration was defective and how it could be improved, and he added that an assembly such as he proposed should not be presided over by the Local Governor, for in his presence the
people might not like to speak out their minds*

Mr. Hume was convinced by Lord Dufferin's arguments and placed the two schemes, his own and Lord Dufferin's, before leading politicians in Calcutta, Bombay, Madras and other parts of the country, the latter unanimously accepted Lord Dufferin's scheme and proceeded to give effect to it.

Lord Dufferin had made it a condition with Mr. Hume that his name in connection with the scheme of the Congress should not be divulged so long as he remained in the country, and his condition was faithfully maintained and none but the men consulted by Mr. Hume knew anything about the matter."

In March 1885, it was decided to hold a meeting of representatives from all parts of India at the ensuing Christmas. Poona was considered the most central or most suitable place. From this meeting was issued the following circular:

A Conference of the Indian National Union will be held at Poona from the 25th to the 31st Dec. 1885.

The Conference will be composed of Delegates leading politicians well acquainted with the English language from all parts of the Bengal, Bombay and Madras Presidencies.

The direct objects of the Conference will be

(1) to enable all the most earnest labourers in the cause of national progress to become personally known to each other; 
(2) to discuss and decide upon the political operations to be undertaken during the
ensuing year.

Indirectly, this Conference will form the germ of a Native Parliament, and, if properly conducted, will constitute in a few years an unanswerable reply
to the assertion that India is still wholly unfit for any form of representative institutions. 

It is absolutely clear from the foregoing that the INC was wholly political. It was completely unconcerned with 'justice- as-equity'. Justice is a service industry- one which a poor country like India can't afford very much of. By contrast, politics can flourish even more in a poor country- because the opportunity cost of one's time is so low- than in a rich nation. 
If justice-as-equity meant referrals to the conscience of a monarch,

No such 'referrals' were made save by the hopelessly ignorant. All educated people knew that the Queen merely reigned, she did not rule.  

petitions for righting perceived grievances/lapses, could the lawyer be far behind?

The 'vakils' were ahead, not behind, in pursuing remedies from Parliament through judicious bribery. Edmund Burke's 'cousin' William Burke was in the pay of the Rajah of Tanjore while the Irish politician Phillip Francis- another persecutor of Hastings- was probably being paid by Cheyt Singh and other wealthy Indians opposed to Hastings. The fact is these Irishmen were just as concerned to loot India so as to make their own fortune. Only Mithi thinks there were Saints and Heroes of 'Justice-as-equity'.  

The imperial discourse had to lead up to the age of the petition and who better to do that than the lawyer on behalf of the subjects?

What fucking petitions were presented? If the Chartists got nowhere with the petitions, how could the Indians do so? Most English laborers had a smattering of literacy- at any rate, they knew English- who would believe that the Indian masses could understand any petition drawn up in their name?  

So the ‘Vakil Raj’ and the INC were born with the lawyer as sole political representative.

Nonsense! Dadhabhai Naoroji wasn't a lawyer. Neither was Gokhale. Princes and Zamindars weren't lawyers. They may have used lawyers for certain purposes but their interests were of a political type. They were unconcerned with 'Justice-as-Equity'.  

It is no accident that almost all the intellectuals and nationalists were lawyers, including Gandhi.

But they were paid by propertied classes or the new industrial entrepreneurial class.  

It was not a quirk of petite-bourgeois sycophancy that led Madan Mohan Malaviya, pleading for elected representation to the Legislative Council in 1906 to round off his plea thus: ‘…Why then should it be denied to the loyal and intelligent subjects of her Gracious Majesty?

Yes it was. Many young people laughed at old men like Malaviya and Gandhi for this sort of 'petit-bourgeois' sycophancy.  

There was method in such seeming unctuousness.

No there wasn't. It was foolish. That is why the 'Garam Dal' displaced the arse-licking 'Naram Dal'.  

Mukherjee reminds us that, ‘In light of the arbitrary nature of the colonial executive, the discourse of the Congress had necessarily to be addressed to a higher imperial judge…’ 

But it wasn't. It sometimes addressed the British Cabinet. But the Cabinet is not a Judicial institution. Of course, lawyers might appeal to the Privy Council on some thorny issue of Waqf Law or 'Mitaskhara' or whatever.  

And who higher than the monarch?

The Crown in Parliament. Till about a dozen years ago, the UK had parliamentary supremacy. Even now British Judges consider what in the US is called 'political question' to be more capacious than is the case in India.  

The lawyer, defendant, plaintiff and judge: India’s nationalist ambitions were confined to and constricted by the courtroom and its lead players.

Fuck off! Some Indian Nationalists were Communists. Others wanted a Theocracy. Few thought lawyers mattered- even if they themselves had been called to the bar. 

Then along came Gandhi.

Who was very well financed by Gujarati, and later Marwari, nouveau riche entrepreneurs.  

In South Africa, Gandhi, a lawyer, played the imperial game fighting – in the courts – for Indians there.

He lost because Smuts prevailed. Lord Milner's 'kindergarten' was scrapped. It became clear that first White Colonies, and then those of the dusky sort, would go entirely on their own way on all internal matters.  

When he came to India and began a non-violent cooperation movement against the British in 1921, the first call he gave was to boycott all British courts and to ban ‘lawyers from participating in and leading the struggle for national independence’ 

Why did he do so? Because the Irish had set up parallel courts. That succeeded and Ireland got independence in 1922. Gandhi had surrendered unconditionally by then. He went meekly off to jail and the country was so peaceful that the Brits withdrew the Rowlatt Act. 

In Mukherjee’s phrasing, the ‘renunciative persona’ of Gandhi was about to replace the ‘enunciative persona’ of the lawyer.

But it never did so. The lawyers went back to practicing law though from time to time they'd go off meekly to jail. Gandhi was shot the moment he started wagging his tail in independent India. Godse was hanged in a proper legal manner. There was a nutter who was supposed to have set up 'People's Courts' in the Adivasi belt. Last he was heard from, the fucker was facing jail time for sexually abusing young girls.  

The account of how this persona arrived to redefine and reshape India’s freedom struggle is riveting in its detail, fascinating in its novelty and freshness of approach.

It is a fairy story. Gandhi failed. He surrendered unconditionally. True, when the Japs were at the gate, his showed an eagerness to get to Jail so Tojo could release him and pat him on the back. But the Brits fucked over the Japs- thanks to the Americans. 

One knows one is retracing a period of India’s complex history never before examined in this fashion;

because no one has ever been as stupid and ignorant as Mithi 

as a clash of ideas of discourses as the location for what can only be called the ‘epistemological break’

what fucking 'epistemological break' is involved in a nutter telling stupid lies till he is sent off to jail to cool down? As Ghalib puts it 'Ek tamasha hua, gila na hua'. The thing was a theatrical spectacle. No actual grievance was redressed. 

in India’s long march to freedom. Gandhi did not invent the ‘renunciative discourse’ of freedom or the sanyasin as the proponent of freedom. His discourse of the renouncer was ‘genealogically connected’ with traditional Indian (Hindu, Buddhist and Jain) discourses on transcendental or renunciative freedom: mukti, moksha, nirvana. He blended these into a political slogan of swaraj like no other renouncer in the nineteenth century had.

Then fucked up so completely, that, in 1932, all the minorities of India repudiated the leadership of the INC.  

The discourse of swaraj, of course, was a radical opposition to the epistemologies of imperial rule.

An epistemology is a theory of knowledge. Two people who are agreed as to what constitutes knowledge may still disagree as to the facts. Equally, they may disagree simply because their interests are not aligned. I may say 'the fact is you took my yoghurt from the fridge and are proceeding to eat it'. You may deny this fact even if you know it is true because you want to eat the yoghurt.

Imperial rule was based on procedures which in turn depended on what did or did not constitute pertinent facts. This was also true of post Independence rule. But it is bizarre to speak of 'epistemology' in this context. Nobody at that time did so- even if, like Radhakrishnan and Lala Har Dayal, they lectured on Philosophy. 

It was not based on western notions of rights, of state-guaranteed duties and responsibilities.

Yes it was. Gandhi may have had personal beliefs of a different type but he clarified that, as President of the INC, he was pushing forward its agenda- which was couched in legal and political language of a type familiar to Westminster- rather than the ideas he put forward in 'Hind Swaraj'. Nehru pointed this out to Gandhi in 1946 after the latter wrote to him saying 'The first thing I want to write about is the difference in outlook between us. The difference is fundamental then I feel the public should also be made aware of it.'

Previously, Gandhi had threatened to publish a letter from Nehru to embarrass him. But much had changed over the succeeding years. Had Nehru quit Congress just before the election, Congress would not have monopolized the Hindu vote. Hindus saw that the British would deal with Nehru- more particularly because his pal Atlee was Prime Minister. As for Gandhi, there was no point dealing with him. The fellow was a crack-pot. Nehru, conveys this in a polite but firm manner- 

It is many years ago since I read Hind Swaraj and I have only a vague picture in my mind. But even when I read it 20 or more years ago it seemed to me completely unreal. In your writings and speeches since then I have found much that seemed to me an advance on that old position and an appreciation of modern trends. I was therefore surprised when you told us that the old picture still remains intact in your mind. As you know, the Congress has never considered that picture, much less adopted it. You yourself have never asked it to adopt it except for certain relatively minor aspects of it. How far it is desirable for the Congress to consider these fundamental questions, involving varying philosophies of life, it is for you to judge. I should imagine that a body like the Congress should not lose itself in arguments over such matters which can only produce great confusion in people’s minds resulting in inability to act in the present. This may also result in creating barriers between the Congress and others in the country. Ultimately of course this and other questions will have to be decided by representatives of free India. 

Gandhi wasn't standing for election. Thus he would have no voice in what followed though some might pretend otherwise for politeness' sake.

Most importantly, it did not acknowledge the distinction between the self and ‘other’.

Nonsense! Every body in politics acknowledges that the guy running things is different from the guy getting fucked in the ass in jail.  

Gandhi tapped into India’s most profoundly different worldview of freedom that presupposes the erasure of identity, of the gap between the self and other that was the cornerstone of the western idea of freedom grounded in individual rights.

Gandhi tapped into India's mercantile castes reserves of cash so as to advance their financial, political, religious and cultural interests. Some Hindus may speak of Advaita and some Muslims of Tawhid, but nobody has ever 'presupposed the erasure of identity'. That is why if I tenderly fondle your breast- believing it to be my own gorgeous pair of titties- you slap me silly or get me arrested by the police. 

The first task of the competing discourse—Mukherjee also calls it the Indic discourse

which she has taken great pains to get away from. Perhaps the poor lass was constantly being poked and prodded by Indian people who 'presupposed the erasure of her identity'  as something separate from them. But, Indian law supplies the remedy. She probably thought that it didn't because Gandhi had erased the distinction between ipseity and alterity. But any thought it is possible for Mithi to have is a stupid and ignorant thought. 

—was ‘to overcome the fragmentation of Indian society’ that had been an essential part of the colonial-imperial discourse and had so far prevented a national mass movement.

British people created the INC for the specific purpose of creating a National forum at least for intellectuals. That's the testimony of W.C Bonnerjee who was the first President of that organization.  

The Gandhian discourse ‘provided a way out of the labyrinth of the politics of identity

No it didn't. That's why, first Burma and then Pakistan went their own way. Other parts of India may have wanted to do the same. But the Army fucked them over till they kept quiet. The same thing happened in other newly independent nations.  

and made possible a large-scale mass movement

but such a movement- viz Swadeshi- existed from 1905- nine years before Gandhi returned to India.  

based on non-violence, an essential pillar of the discourse of renunciative freedom’ 

Gandhi gassed on about it but others didn't bother.  

As a political activist turned renouncer, Gandhi infused the freedom movement with a politics that in hindsight few understood beyond the realm of practicalities.

There was nothing to understand. The thing was a fairy story. 

For him, the fight for independence was a struggle for moksha, for non-attachment.

Though plenty of people were gaining moksha all over the place without bothering with politics of any sort. 

It did not aim for the seizure of power; it was directed at the extinction of power, of all power itself through the erasure of identity.

It may well have aimed at the erasure of nastiness and the promotion of niceosity.  

Political freedom then had to become transcendental liberation that negates all institutions premised on identity. The renouncer renounces all; the state has to wither away.

& rainbows must shoot out of everybody's butt 

It is not surprising that Gandhi asked Nehru to dissolve the Congress and turn it into a social service organization.

Gandhi published a 'Last Will and Testament' which everybody ignored. Godse had put paid to that nuisance.  

But the most tragic irony lay here.

No it didn't. The tragedy is that Gandhi was not ignored ab ovo. The irony was that his financiers would have been better off investing in Engineering Colleges and Institutes of Management.  

Had India really followed Gandhi?

No. He was a cretin. 

He had followed his renunciation to the hilt;

Nonsense! He was sleeping naked with great nieces. A renunciant is supposed to leave his family. 

he withdrew to spend his last years in dousing the fires of Partition with the healing voice of peace and harmony.

He failed. Finally, a Hindu rid the Nation of that maha-nuisance. Godse is now considered a hero though he was as stupid as shit and brought down disaster on his own Chitpavan community. 

He withdrew from active politics and the making of the new nation state.

He found himself de trop. Some observers thought he wanted to be offered the Premiership. As a matter of fact, Vallabhai had received the majority of nominations. But Nehru put his foot down. He'd join the Socialists and let Congress descend into senile dementia. Nehru refused to pay even lip service to Gandhian shite. 

Could Gandhi have done anything else? Not likely, for the logic of his discourse demanded anasakti or non-attachment.

Gandhi needn't have been such a worthless pile of shite. He could have said to Jinnah and Shurawardy and Liaquat- 'Listen guys, the choice facing India is between a Centralized, Socialist, Government and a decentralized Federation where Religion and Property are safe. I'm an elderly Gujju and I represent semi-literate Banias. So you can trust me to oppose young, phoren returned, Hindi speaking Brahmins and Kayasthas of a Socialist stripe. Work with my man Patel and my 'sambandhi' Rajaji so as to ensure the Socialists don't take power at the center and force their noxious creed down our throats. The Princes too will be on side once a smart guy like Shahnawaz Bhutto or CPR Iyer explains things to them.' Of course, Gandhi would have had to sideline Maulana Azad so as to make the Cabinet Mission Plan work. But Azad would have understood.

The reason Gandhi couldn't rally the Right, now the nightmare of a Socialist Britain handing power to Socialists in India had materialized, was because his financiers actually wanted a strong, Lefty, Center to put up Heavy Industries which they believed would be privatized- as had happened to the Japanese zaibatsu in the Eighteen Nineties. 

Should the rest be silence? Nehru and the Congress felt the job had just begun; a new state had to be created. Gandhi had no answer; he had become irrelevant. He was perhaps saved from providing any solutions by the bullet that claimed his life..

Sadly, stupid academics who think they know about 'epistemology' won't leave Gandhi alone.  

So a search for the defining principles of the new state began—on an ominous tone that almost presaged the future. Mukherjee asks the question: Why was the end of British rule described as a ‘Transfer of Power’?

Because it was a transfer of power over Defense and External Affairs just as power over other matters had been transferred ten years previously to the Provinces. What was different was that Nehru had come to see that a strong Center was essential. Thus independent India was more, not less, centralized than British India.  

Why is the freedom movement not seen as the Indian revolution in the same way that the Americans see their own liberation from the British two hundred odd years earlier?

Because there was no violence. Elections were held and power was transferred to a legally constituted body with the full concurrence of the Crown in Parliament. 

One may equally ask the question, 'why is cricket not referred to as 'Indian baseball'? Or 'why is New Delhi not referred to as the Capital of California?  

Her answer may shock the reader

by its stupidity 

but it is spellbinding nevertheless and it is the core of her work.

The Constitution that finally emerged after six years of deliberation

Six? No. Less than three. 

pulled the nation away even further from the Gandhian discourse

but Nehru told Gandhi there was never any Gandhian discourse within Congress. The guy was only tolerated when he advanced Congress's agenda. His private crotchets were of no interest to the party.  

and right into the old imperial discourse that the freedom struggle had so successfully battled, but not overthrown or upturned.

Nehru and his diplomats denounced Imperialism all around the globe. Mithi, cretin that she is, pretends otherwise.

Still, it is undoubtedly a fact that Nehru did not relocate the territory of India to some other planet untainted by Colonialism. Sad.  

If Nehru didn't have magical powers, why assume Gandhi did? This is the question we must ask Indian intellectuals who write shite of Mithi's stripe.

Prakash Kumar summarizes her thesis thus- 'But the real rupture with the paradigm of the moderate Congress and the contrary move toward explicit resistance of the empire came with Mahatma Gandhi as described in chapter 5. 

Gandhi's advent occurs after the Brits mop up the Ghaddar and Jugantar resistance and put paid to the Indo-German conspiracy There was a trial of strength but Tegart prevailed over Bagha Jatin. Ghanshaymdas Birla who had somehow got caught up in the Roda Cartridge case, is typical of the smart young person who quickly gets under the Gandhian umbrella so as to steer clear of the CID. Indeed, Tegart became a great pal of Birla and took a Directorship in his London holding Company after he retired. 

The Non Cooperation Movement marked the ascendancy of the ideas of “renunciative freedom,” a core Gandhian idea, which the Congress quickly embraced. 

No. Gandhi explicitly said that he was taking charge of the agitation to advance Congress's, not his own, program. He fucked up. Congress split. But Motilal & C.R Das's Swaraj Party fucked up equally. Still, the 1928 Nehru Report was accepted as Congress's platform. By 1930, you could say Jawaharlal had triumphed as it was his vision which was endorsed as the aim of 'Purna Swaraj' in Lahore in 1930. The problem was, the rich were in no hurry to have their fiscal throats slit by a very very poor electorate. 

This move by the anticolonial movement enabled it to come out of the labyrinthine imperial and colonial trap and demand complete political independence.

This is not what happened. Gandhi renounced politics to do 'constructive work' in 1922. Sadly this renunciation did not stick. He got back in the game with the Dalmia financed, Dandi Salt March which- predictably- failed completely. India still has a Salt Tax. Then came the Second Round Table Conference where Gandhi managed to unite all the minorities and 'depressed classes' against the INC. After that the Brits dictated the pace and scope of reform simply jailing or releasing Congress leaders as required.

 The Gandhian idea of transcendental freedom 

was predicated on sleeping naked with little girls. The thing was pure fantasy.

enabled two maneuvers: one, political resistance to colonialism 

which failed immediately

and two, spiritual freedom through an ethical engagement with current mores of the society.

i.e sleeping naked with little girls

 The chapter’s argument counts among the most valuable contributions of the book in its new interpretation of a continuum between the Gandhian calls for political and spiritual freedom. 

coz little girls really want to sleep naked with very old and smelly men

In Gandhi’s vision, the author argues, political “political freedom ... was indistinguishable from renunciation, renunciation of desire, and of identity”

such that girls understand it is terrible 'himsa', violence, if they refuse to sleep naked with their great-uncle

Mithi's other big idea is that 'transfer of power' is totes evil coz like Foucault, right? I mean there's Knowledge- that's Epistemology, yeah?- and then there's Power and Biopolitics and I mean you can't tell me some sinister shite aint going down. What if the Government is watching you poop? What if everybody is watching the Government watch you poop? I mean isn't that the sort of question we should be encouraging our students to ask? Look at what is happening all around the globe! If the Government isn't watching you poop what the fuck is it doing? I mean, that's just logic, right? 

Upadhyay takes up the tale- 

The ‘Transfer of Power’ stretched the long shadow of empire over the framers of the Constitution; not surprisingly its essential principles were reminiscent of the old imperial discourse.

Worse still, India remained in exactly the same position on the map as it had under the Raj.  

How so? Mukherjee draws our attention to The Preamble. It lists justice in economic, social and political domains as the primary function for the national good followed by liberty, not in the above domains but in thought, expression, belief, faith and worship.

This is silly. Justice, Liberty, Equality and Fraternity are all mentioned. There is no warrant for assuming one takes precedence over another. Anyway, the Preamble was considered unenforceable for the first two decades after Independence. 

The Preamble thus ‘clearly constitutes justice rather than freedom as its foundational or over-determining category,

Said no Chief Justice of the Supreme Court. Mithi is making this shit up.  

bringing the social, the economic and political domains within its jurisdiction…the category of liberty or freedom is is second in importance to justice.’ 

This is an unwarranted assumption. It is frequently the case that we have to list things of equal importance. This does not mean one thing won't be mentioned before another thing.  

The foundational principle of justice as the pivot on which Indian democracy turns owes its origins to the imperial discourse of justice as equity, says Mukherjee.

The pivot on which Indian democracy turns is Parliamentary Elections on the basis of universal franchise.  This remains the case even if the Constitution is suspended or scrapped altogether. 

Her penultimate chapter captioned with a question, ‘An Imperial Constitution?’ answers in the affirmative. “What one sees in the Indian Constitution is the ultimate triumph of the juridical-epistemological framework of empire” grounded in the idea of justice as equity with “its accompanying figure of the monarch as judge.

Where the fuck is the Indian monarch and when has any such worked as a Judge? Every country that became independent cobbled together a Constitution. But, speaking generally, those Constitutions didn't matter very much.  

It is in the Constitution that one can see the mutation of imperial justice as equity from a critical category of anti-colonialism to the sovereign legislative category of Indian politics and the final marginalization of the post-Independence formation of the Gandhian discourse of transcendental freedom under which the struggle for Independence had been largely carried out.

If that is what one wants to see then one can see it with even greater clarity in the novels of Enid Blyton. 

The Indian Constitution builds on the 1935 Act, it is true, but it also owes a lot to the Nehru Report. Still, it did not greatly matter and was swiftly amended every which way but loose. 

Who could this monarch-as-judge

There was no monarch-as-judge in England. James I may have had some illusions on that score but was obliged to give them up when he crossed the border.  

be in a new avatar of the old discourse? A judge who stands above the law, who precedes the law as the embodiment of justice – in other words a monarch or sovereign exterior to the people? Why, the state itself!

But, in independent India, the State is manned by Indian people whom other Indian people will beat up, or blow up, if they screw up too badly. 

In the Indian Constitution, justice as equity is the sovereign legislative principle.

No. Parliament holds the legislative function though Presidential Ordinances can have effect provided the Prime Minister holds the confidence of the Legislature. The phrase 'justice as equity' is unknown to Indian jurisprudence. One may as well speak of 'Law as twerking'.  

Being so, it allows the legislature or state to resolve ‘a conflict between the legislative imperatives of universal law and discretionary equity’ in favour of the latter (emphasis added).

Nonsense! This is a function of the Courts or of Tribunals or other quasi autonomous instruments of 'delegated legislation'. Parliament can, of course, pass a Law of restricted scope or the same matter can be dealt with by Presidential ordinance. But the Legislature does not itself function as a provider of Equitable remedies. 

Britain, it is true, used to have a Lord Chancellor. But India has a written constitution which makes no such provision.  

In this scheme of statehood, the state comes before the law. ‘The state is the source of all laws not the people. The state – not the people – is therefore also the source of the Constitution’ (191.Emphasis added).

Actually, the Indian Constitution upholds its own autochthony- i.e. affirms its immemorial pre-existence on Indian soil. Thus it claims its origin in the Indian people even before any State existed.  

Bear in mind, Mukherjee seems to tell us, that the monarchical state stood outside and above the people; so “the discourse of justice as equity was historically anchored in the duty and compassion of the monarch in opposition to the modern evolutionary discourse of the rights of the citizens deriving from the universality of the law…” Not surprisingly then, “the directive principles were specifically defined in terms of the duties of the state rather than as rights of the individual.” 

But those duties are linked to rights held by individuals under a vinculum juris.  

Where does that leave freedom?

It leaves freedom as a bunch of Hohfeldian rights linked to remedies under a bond of law.  

The Indian Constitution does mention freedom as a Fundamental Right but it is subordinated to the principle of justice.

No it isn't. Fundamental rights aren't more or less fundamental that each other any more than 'fundamental particles' in Physics.  

And since the state is the arbiter of that principle of justice as equity,

It is not. The Judiciary is the arbiter.  

it also has the right “to suspend or override freedom when (it is) deemed to be coming in the way of justice” 

The State certainly has that power. However a Court may decide that that power was exercised ultra vires. The power to do something is not the same thing as a right to do something.  

The framers of the Constitution achieved this end by adding qualifications to each right to such an extent that one Constituent Assembly member, Somnath Lahiri remarked, quite unerringly, that the rights had been framed from “the point of view of a police constable.” Granville Austin, the constitutional scholar is summoned by Mukherjee to say that “ this particular aspect of personal freedom was whittled down until on paper at least it was non-existent.” 

True enough. But, the fact is, much the same could have been said about McCarthy's America. Come to think of it, an American couldn't own gold in the Fifties whereas an Indian could- so, economically we were more free. Indeed, if you weren't a crazy Commie or a rabid Rezakar or a Sheikh Abdullah type secessionist, then India wasn't too bad. JBS Haldane decided to take Indian nationality after his wife was sacked for drunkenness in dear old Blighty. 

Ramifications follow from the legislative sovereignty of justice as equity

but those ramifications also follow from the anal intrusion of justice as equity 

and the subordination of individual freedom especially for the judiciary in relation to the executive.

and the incessant sodomy judges are forced to experience at the hands of executives of various types 

The Supreme Court’s power to examine parliamentary legislation in terms of its constitutionality was drastically reduced, “if not altogether removed by the framers of the Indian Constitution. While the Constitution did provide for judicial review in the domain of Fundamental Rights (think Aadhar and right to privacy!) and the relation between the central and the state legislatures, severe restrictions were placed on the nature of review. ’

That has been reversed but now the Bench realizes it bit off more than it could chew. The 'doctrine of political question' will have increasing salience going forward.  

More surprises follow. The framers further undermined the Supreme Court by rejecting the ‘due process’ clause as a ‘fundamental procedural element in the constitution despite ‘overwhelming public demand for it’

Fuck off. Nobody wanted the thing because it was associated with American plutocracy using the Bench to block FDR's agenda.  

And why would the public have wanted due process? “By giving the courts the power to judge in a case where the the individual’s rights may have been infringed upon by the legislature or the executive, the right to due process safeguards fundamental rights from the excesses of the state..”

This is silly. Instead of 'due process' the Indian Bench reads Article 14 and 21 to get to the same result. Saying 'procedures of law' is just as good as saying 'due process'.

Nehru, GB Pant and other Congress leaders opposed due process: “‘To fetter the discretion of the legislature could lead to anarchy’” They contended that “…in the interests of law and order, the prevention of violence the imperative of social justice, the due process clause needed to be dispensed with, and Parliament given the absolute power to override the rights of the individual.” 

Britain, with its unwritten constitution, always had Parliamentary sovereignty. Indians may have been prepared to have 'due process' etc, if Hindus in Muslim majority areas benefitted. But once Pakistan was created, there was no way Hindu India would accept any limit to its power to fuck over Muslims and Communists and anybody else who tried to create mischief. 

The ‘Constitution is a creature of Parliament,’, and if that was the case it could also be amended. “Parliament had the right to amend the fundamental provisions of the Constitution if the court’s decisions conflicted with its own sense of justice as equity.” Thus, amendments became, as Mukherjee notes, “an institutionalized way of dealing with judicial independence and asserting the legislative will of the Parliament even when the legislations were declared to to be unconstitutional by the Supreme Court.”

So what? This is scarcely news. Why gas on about 'Justice as equity' if, it has always been obvious, Justice is a scarce commodity in a poor country like India?  

When Nehru declared that “‘No Supreme Court and no judiciary…can stand in the way of the sovereign will of the Parliament , representing the will of the entire community…” and by designating the Constitution as a ‘creature of parliament’ Nehru had placed Parliament and in effect, the ruling party and its leader above the Supreme Court and the Constitution itself. It was in the Parliament, a.k.a. the ruling party and its leader, that the sovereign of the discourse of justice as equity was located—as it was in the figure of the Queen during the imperial raj.

Nonsense! The Queen had no power. Indira Gandhi and her son Sanjay could chop your balls off- or at least forcibly sterilize you.  However, even if there was no strong leader at the helm, extra-judicial killing to end an insurgency could carry on with impunity. 

Reading ‘In the Shadows…’ what we learn is that the ‘imperialism of categories’, to use Ashish Nandy’s memorable phrase, is

shite, like everything else which came out of his mouth 

alive and throbbing in the assertion of the legislative sovereignty of justice as equity,

or the aesthetic hegemony of anal intrusion as the Capabilities approach to a Rights based discourse of Human Development as the reach-around demanded by the Neo-Liberal Nomenklatura with comprador characteristics 

in the subservience of individual rights and freedom to justice – as interpreted by its supreme arbiter, Parliament and, by implication, the party in power.

Either there is subservience to the ruling party or there is Justice. There can't be both.  

Someone once said, you never read the same book twice. Re-reading ‘In the Shadows…’ first published in 2010, and after a review in Seminar magazine in 2014 did not give me the sense of having walked down this road before; not even those heavily underlined passages that should have invoked a sense of déjà vu. That had been a different reader. Now, it was the resonance of its pivotal ideas in the reality we live; or, to turn the equation around, in the way that the increasingly frightening omniscient state reaching out to grab us by the short and curly, to determine for us the codes by which to live and think—all in the name of justice and development—echoed so much in the pages of her book that made me think of re-visiting that period of our tryst with destiny through Mukherjee’s text. When I opened the book to the section on the ‘Imperial Constitution?’ I decided to read the book once again; I could hear the drumbeats of vaunting authoritarianism posing as grandstanding rhetoric.

So, this guy doesn't like Modi. Fair enough. But why read Mithi's book? Will it help him overthrow Modi? Or will it make him stupider than he already is?  

Not for the first time India is confronted with the prospect of an authoritarianism smelling the fruits of unbridled power The idea of a sovereign leader standing above all law, dispensing justice is the procrustean bed of our political life, of our democracy; democracy in India is not freedom for the individual grounded in rights primarily; it is the freedom for the State to determine and fashion the liberties of its subjects—all in the name of justice and development. The only unfettered freedom for the individual to vote a party into power that can then decide the freedoms we are entitled to.

So the guy doesn't like Democracy. If I were him I'd emigrate to the UAE. 

In India then electoral democracy is simply the means by which we endorse the power of the State, of the ruling party as the sovereign arbiter of our liberties.

The same is true of the US or the UK. That is why people who are worried about populist authoritarianism should emigrate to stable Monarchies in the Gulf. 

As head of state, the ‘sovereign’ does not need an Emergency, or a coup or coercive means (as yet) to enforce its will. The foundations on which the Indian State are erected allow for such a possibility in the first instance; that is Mukherjee’s unstated message; at least that is how one can read her text of an Imperial’ Constitution, of the echoes she finds of an imperial sovereign past, in the attitudes of our founding fathers to ‘due process’ to accountability to a judiciary and laws that should limit its excesses.

   Mithi migrated to the US where, no doubt, she is very happy with Trump's picks for the Supreme Court. In India, however, the Judiciary is independent. Still, Upadhyay should migrate to some nice monarchy in the Gulf because Hindus are in the majority in India.  

In Mukherjee’s view, the exercise of power, of sovereignty and of the perpetuation of the imperial discourse of justice-as-equity needs more than coercive power; it needs a discourse;

Does what China is doing to the Uighurs really need a discourse?  

imperial power (and by implication, the power of the Indian State) need not be guaranteed by force, political or economic might, by material appropriation and dispossession alone; it was and continues to be legitimized in the hearts and minds of the subject

wow! these cunts think Indian 'hearts and minds' belonged to Queenji only! Meredith Townsend revealed over a hundred years ago that Indians were not loyal to the Brits. They only pretended to be. 

through persuasion, by convincing its subjects that had been racked, ransacked by innumerable conquerors that its moment of glory had passed, that it was dysfunctional, malcontented, its communities at war with each other. It needed to welcome the supremacy of a foreign monarch and his/her categories of imperial rule to hold it together.

Why do these two people of Indian origin not know that the Brits defeated Indian princes and took their land? What do they think happened? Queenji started shouting very loudly in various Indian languages. She said 'India very dirty and horrible. Chee! Chee! Kindly invite a nice British Viceroy. Then everything will be hunky dory. Haan ji haan. Chashme buddoor'. Indians, being very stupid, were quickly fooled. Then they started complaining 'Queenji, why you are not giving us justice as equity? Is it due to you are using it as dildo? Chee! Chee! You one nasty bitch!' 

Sadly Nehru was rudely shoving the British aside and, without any concern for 'due process', he was starting massive campaign of anal intrusion as justice as equity and Hegemonization of the Compador Nomenklatura of the Neo-Liberal reach-around of the Populist Authoritarianism or the Democratic deficit of the immanent Sovereignty of the scotomization of the Panopticon of the infrastructure of ideological nexus of whatever it is that crawled up your arse and died there.  

By implication, that persuasion or discourse now has a new infrastructure

because discourses are getting new infrastructure for free from their rich Uncles who migrated to Singapore back in 1972.

to suit the sovereign’s ideological needs and to convince us that we Indians are at threat from ‘divisive’ forces that celebrate differences in religious beliefs, eating habits, dress codes and languages, from those who would destroy the fabric of our unity by extolling its diversity. Justice and development are prioritized; freedom is assigned—by the State—to only those purveyors and disseminators of the culture of statism, homogenization and majoritarianism.

Upadhyay is talking about Muslims. For some reason, Hindus seem to have developed an aversion for people of that Faith- unless they live in UAE or US or UK or other nice countries where terrorists are locked up properly.  

Mukherjee’s book is outstanding not just because it attempts to answer puzzling riddles long ignored, for instance, why ‘Transfer of Power’?

Because Power was transferred. Why is that difficult to understand?  

Its brilliance lies in raising more questions than it sets out to answer: The paradox of the renunciative discourse’s rapid disappearance from the political and psychological landscape of modern India soon after it had attained its formal objectives of what can be viewed as a qualified freedom.

There was no paradox. Gandhi talked stupid shite and got money from his financiers. Then everybody told him to fuck off. Finally, because he still didn't get it, he was shot. Then, he could be safely put on a pedestal. 

Was Gandhi’s project, of ‘transcendental freedom’ perhaps a Greek tragedy destined to an inevitable failure?

It was nonsense. It failed.  

Now one knows why disparate aspects of his practice and precepts, so ridiculed and made ludicrous, such as prohibition, the village economy, the loin cloth, his call to the Congress to disband, his experiments in celibacy make sense; seen discretely they appear as simulacra.

The guy said everybody should stop having sex so the human race could die out. Seen discretely or holistically, his nostrums were stupid, ignorant, garbled, shite.  

Their truth lies in the wholeness and tragedy of the renunciative discourse that enabled India’s freedom and was, in turn, disabled.

What 'enabled' India's freedom was the Kaiser's War. Empires were no longer viable. Sir Henry Wilson entitled his talk to the War College in 1921, 'the end of Empire'. Then an Irishman killed him. Ireland and Egypt and Afghanistan got independence. Ataturk prevailed in Turkey. White resistance to the Bolsheviks collapsed. India should have got independence around 1924. Gandhi's unconditional surrender prevented this outcome. Maybe that was a good thing. Maybe it was a bad thing. But that is what happened. 

Nobody in India wants Gandhianism- even those who pretend otherwise. This is because they don't want their throats slit in a manner which might discommode them from gassing on about Truth and Non Violence and like how the Modern World is totally Evil.