Saturday, 22 March 2025

Adam Smith's allodial stupidity.

 Adam Smith was stupid. That is why he is considered an economist rather than a canny Scot who had spotted a gap in the market and was supplying it in a highly professional and systematic manner- i.e. without bothering to use his brain. 

In a country which has neither foreign commerce, nor any of the finer manufactures,

there will be warring tribes and clans 

a great proprietor,

won't exist. Theft- particularly cattle theft- would be property. There may be inherited claims to territory kept up by local chieftains but there would be no 'proprietors'.  

having nothing for which he can exchange the greater part of the produce of his lands which is over and above the maintenance of the cultivators, consumes the whole in rustic hospitality at home.

Unless a rival clan attacks unexpectedly and carries away all the cattle. In that case there won't be much good cheer at the chieftain's table. 

If this surplus produce is sufficient to maintain a hundred or a thousand men, he can make use of it in no other way than by maintaining a hundred or a thousand men.

If it insufficient, the hundred or thousand must either raid their neighbours or perish of starvation.  

He is at all times, therefore, surrounded with a multitude of retainers and dependants, who, having no equivalent to give in return for their maintenance, but being fed entirely by his bounty, must obey him, for the same reason that soldiers must obey the prince who pays them.

If his retainers are shit at fighting, he himself will soon be killed or enslaved. 

Before the extension of commerce and manufacture in Europe,

it was a shithole. First came the extension of religion- Monasteries and such like- and only then did the pall of darkness begin to lift.  I suppose the Crusades played a part in this. But they imposed quite a high financial cost on some European kingdoms.

the hospitality of the rich, and the great, from the sovereign down to the smallest baron, exceeded everything which in the present times we can easily form a notion of.

It is easy enough. Your guys steal cattle and maybe grab some female slaves. You have a barbeque. Everybody's invited. But such potlatches become fewer and more far between as time goes by till a more commercial race finds that it can hire mercs from amongst your number and establish its paramountcy. This might mean that sheep replace your lusty warriors and you yourself become a 'great proprietor' who considers hospitality a virtue to be stinted to the needy but lavished on those richer or more powerful.  

Westminster Hall was the dining-room of William Rufus,

His manners may have been rough, but his finances were sound.  

and might frequently, perhaps, not be too large for his company. It was reckoned a piece of magnificence in Thomas Becket that he strewed the floor of his hall with clean hay or rushes in the season, in order that the knights and squires who could not get seats might not spoil their fine clothes when they sat down on the floor to eat their dinner.

Becket's father, though of Norman origin, was a prosperous merchant. It is believed he sold those 'fine' textiles for which his son, who rose as a commercial clerk and then was Lord Chancellor before making a lateral move into the Church, showed such tender concern. In other words, the London of Rufus & Becket was already commercia and concerned with foreign trade rather than autarkic and feudal. 

The great Earl of Warwick is said to have entertained every day at his different manors thirty thousand people, and though the number here may have been exaggerated, it must, however, have been very great to admit of such exaggeration.

I suppose, the only sort of safety available back then, was safety in numbers. It was not so much the bread and pottage served in the Baron's hall which attracted you as the chance to sleep safely on the straw surrounded by the slumbering bodies of hefty men-at-arms.  

A hospitality nearly of the same kind was exercised not many years ago in many different parts of the highlands of Scotland. It seems to be common in all nations to whom commerce and manufactures are little known. "I have seen," says Doctor Pocock, "an Arabian chief dine in the streets of a town where he had come to sell his cattle, and invite all passengers, even common beggars, to sit down with him and partake of his banquet."

Wealthy merchants in the biggest cities would be even more generous in terms of endowing seminaries and alms-houses or even contributing funds for the construction of great cathedrals or mosques. The hospitality of the merchant guild, or the monastery, might throw that of the Baron, or even the King, into the shade. But, in England, a point was reached where great Princes preferred to put up in commercial Inns rather than seek hospitality from their royal cousins. The problem with 'rude plenty' is that there is plenty to be rude about. Why not stay in a nice Inn and pay extra for dainty dishes and fine linen? 

The occupiers of land were in every respect as dependent upon the great proprietor as his retainers.

Under serfdom, they were more than dependent. They were subject to punishment if they ran away.  

Even such of them as were not in a state of villanage were tenants at will, who paid a rent in no respect equivalent to the subsistence which the land afforded them. A crown, half a crown, a sheep, a lamb, was some years ago in the highlands of Scotland a common rent for lands which maintained a family.

This was tribute as an acknowledgment of a duty of fealty.  

In some places it is so at this day; nor will money at present purchase a greater quantity of commodities there than in other places. In a country where the surplus produce of a large estate must be consumed upon the estate itself,

there is no point having a surplus if that but invites predation.  

it will frequently be more convenient for the proprietor that part of it be consumed at a distance from his own house provided they who consume it are as dependent upon him as either his retainers or his menial servants.

That's one way to do things. But you could also have a caste system. The aristocracy may be of foreign origin. They are hospitable to each other but, collectively, they terrorize the helots using, it may be, mercenaries from elsewhere. 

He is thereby saved from the embarrassment of either too large a company or too large a family. A tenant at will, who possesses land sufficient to maintain his family for little more than a quit-rent, is as dependent upon the proprietor as any servant or retainer whatever and must obey him with as little reserve.

He may join with his peers to rebel against the feudal lord. 

Such a proprietor, as he feeds his servants and retainers at his own house, so he feeds his tenants at their houses. The subsistence of both is derived from his bounty, and its continuance depends upon his good pleasure.

It depends on whether some more commercial and ruthless people can turn that land to a more productive use- e.g. replace crofters with sheep because wool commands a high price across the sea.  

Upon the authority which the great proprietor necessarily had in such a state of things over their tenants and retainers was founded the power of the ancient barons.

It was founded on military prowess though, no doubt, gifts and marriage alliances and clerical support could shore up one's position. But for how long? Either there was an invasion or a jacquerie or, sooner or later, you fall victim to intrigue or vendetta or can no longer borrow money and pay your troops. The old aristocracy has to become mercantile or else seek safe harbour in the Church or the liberal professions.  

They necessarily became the judges in peace, and the leaders in war, of all who dwelt upon their estates.

They gave sanctuary to outlaws in the hope that those outlaws would not cut their throats 

They could maintain order and execute the law within their respective demesnes, because each of them could there turn the whole force of all the inhabitants against the injustice of any one.

No. They had to tread carefully. The Chieftain remains the Chieftain because his nominal vassals have more to fear from each other than from him. 

No other persons had sufficient authority to do this. The king in particular had not.

In England, Norman Kings could conduct a 'General Eyre'. Perhaps Scotland was too poor to permit any such thing. 

In those ancient times he was little more than the greatest proprietor in his dominions, to whom, for the sake of common defence against their common enemies, the other great proprietors paid certain respects. To have enforced payment of a small debt within the lands of a great proprietor, where all the inhabitants were armed and accustomed to stand by one another, would have cost the king, had he attempted it by his own authority, almost the same effort as to extinguish a civil war. He was, therefore, obliged to abandon the administration of justice through the greater part of the country to those who were capable of administering it; and for the same reason to leave the command of the country militia to those whom that militia would obey.

Where such was the case, the King was a Roi faineant or mere figure head. Justice is a service industry. Kings provide Justice to make a bit of money. Smith, lazy sod that he was, had forgotten this.


It is a mistake to imagine that those territorial jurisdictions took their origin from the feudal law. Not only the highest jurisdictions both civil and criminal, but the power of levying troops, of coining money, and even that of making bye-laws for the government of their own people, were all rights possessed allodially by the great proprietors of land several centuries before even the name of the feudal law was known in Europe

Land title is allodial in Scotland but not England or the US. So what? Who the fuck cares?  

The authority and jurisdiction of the Saxon lords in England appear to have been as great before the Conquest as that of any of the Norman lords after it. But the feudal law is not supposed to have become the common law of England till after the Conquest. That the most extensive authority and jurisdictions were possessed by the great lords in France allodially long before the feudal law was introduced into that country is a matter of fact that admits of no doubt.

What admits no doubt was that the strong could dispossess and enslave the weak. 

That authority and those jurisdictions all necessarily flowed from the state of property and manners just now described. Without remounting to the remote antiquities of either the French or English monarchies, we may find in much later times many proofs that such effects must always flow from such causes. It is not thirty years ago since Mr. Cameron of Lochiel,

the nineteenth hereditary chieftain (Lochiel)  of Clan Cameron. Smith is pretending the guy was a local solicitor who played a prominent part in the Rotary Society.

a gentleman of Lochabar in Scotland, without any legal warrant whatever, not being what was then called a lord of regality, nor even a tenant in chief, but a vassal of the Duke of Argyle

head of the Clan Campbell. Smith pretends that the Argyles had made their money in merchant banking and advanced in the peerage thanks to their diligence as Chancellors of the Exchequer or Governors General of the Canada.

, and without being so much as a justice of peace, used, notwithstanding, to exercise the highest criminal jurisdiction over his own people. He is said to have done so with great equity, though without any of the formalities of justice; and it is not improbable that the state of that part of the country at that time made it necessary for him to assume this authority in order to maintain the public peace.

to wage war against the King. 

That gentleman, whose rent never exceeded five hundred pounds a year, carried, in 1745, eight hundred of his own people into the rebellion with him.

Because the was their Chieftain.  

The introduction of the feudal law, so far from extending, may be regarded as an attempt to moderate the authority of the great allodial lords.

Scotland, since about 2004, has only allodial land ownership. I believe the last feudal dues were done away with in the Seventies. It is notable that ever since Scotland was released from the 'moderating' effects of feudalism, great allodial lords have been beating and sodomizing tenants, and also any sheep belonging to those tenants, in a merciless manner. That is why so many billions of Scottish people have taken refuge south of the border. 

It established a regular subordination, accompanied with a long train of services and duties, from the king down to the smallest proprietor. During the minority of the proprietor, the rent, together with the management of his lands, fell into the hands of his immediate superior, and, consequently, those of all great proprietors into the hands of the king, who was charged with the maintenance and education of the pupil, and who, from his authority as guardian, was supposed to have a right of disposing of him in marriage, provided it was in a manner not unsuitable to his rank.

Very true. Queenji used to see to the education of Scottish peeps. Then Tony fucking Blair abolished feudalism and Scottish peeps started killing and raping everything in sight.  

But though this institution necessarily tended to strengthen the authority of the king, and to weaken that of the great proprietors, it could not do either sufficiently for establishing order and good government among the inhabitants of the country, because it could not alter sufficiently that state of property and manners from which the disorders arose. The authority of government still continued to be, as before, too weak in the head and too strong in the inferior members, and the excessive strength of the inferior members was the cause of the weakness of the head.

No. Feudalism was about being too fucking poor to have a standing army.  

After the institution of feudal subordination, the king was as incapable of restraining the violence of the great lords as before. They still continued to make war according to their own discretion, almost continually upon one another, and very frequently upon the king; and the open country still continued to be a scene of violence, rapine, and disorder.

Like present day Scotland where land ownership is allodial.  

But what all the violence of the feudal institutions could never have effected, the silent and insensible operation of foreign commerce and manufactures gradually brought about.

The country can tax imports and thus gain 'fiscal headroom' sufficient to pay for a standing army and nationwide independent justice system.  

These gradually furnished the great proprietors with something for which they could exchange the whole surplus produce of their lands, and which they could consume themselves without sharing it either with tenants or retainers.

This was true of anybody and everybody with a surplus. Potlatches are rational if you have no way to store surplus food and drink. You may as well throw a big party.  

All for ourselves and nothing for other people, seems, in every age of the world, to have been the vile maxim of the masters of mankind.

Whereas poor people were notorious for wanting to share their last crust with people poorer yet. I once heard of a bloke who would not let his friends fuck his wife. He wanted her all to himself. What a vile fellow he must have been!  

As soon, therefore, as they could find a method of consuming the whole value of their rents themselves, they had no disposition to share them with any other persons. For a pair of diamond buckles, perhaps, or for something as frivolous and useless, they exchanged the maintenance, or what is the same thing, the price of the maintenance of a thousand men for a year, and with it the whole weight and authority which it could give them. The buckles, however, were to be all their own, and no other human creature was to have any share of them; whereas in the more ancient method of expense they must have shared with at least a thousand people. With the judges that were to determine the preference this difference was perfectly decisive; and thus, for the gratification of the most childish, the meanest, and the most sordid of all vanities, they gradually bartered their whole power and authority.

Why is Scotland not the scenes of Civil Wars and tribal vendettas? How come Campbells don't claim hospitality from MacDonalds before slaughtering their hosts? The answer is that Scottish people have become very evil. They may not buy 'diamond buckles', but they do buy clothes and food and nice houses. Fuck you Scottish peeps! Fuck you very much!  


In a country where there is no foreign commerce, nor any of the finer manufactures, a man of ten thousand a year

ten thousand what? Sheep?

cannot well employ his revenue in any other way than in maintaining, perhaps, a thousand families, who are all of them necessarily at his command.

They are at his command so long as he is feeding them roast lamb 

In the present state of Europe, a man of ten thousand a year can spend his whole revenue, and he generally does so, without directly maintaining twenty people, or being able to command more than ten footmen not worth the commanding.

Which is why wealthy Europeans weren't constantly conducting cattle raids on their neighbours.  

Indirectly, perhaps, he maintains as great or even a greater number of people than he could have done by the ancient method of expense.

Perhaps Smith thought Mad King George 'maintained' tens of thousands of soldiers and sailors and civil servants. Also, plantation owners were maintaining hundreds or thousands of African slaves out of a pure spirit of Christian Charity and gentlemanly hospitality.

For though the quantity of precious productions for which he exchanges his whole revenue be very small, the number of workmen employed in collecting and preparing it must necessarily have been very great.

Or not. Smith had shit for brains.  He believed in the Labour theory of value. He did not understand that coal is abundant. Diamonds are scarce. Very little labour may be involved in finding a diamond. But its price is high.


When the great proprietors of land spend their rents in maintaining their tenants and retainers, each of them maintains entirely all his own tenants and all his own retainers.

Because those tenants and retainers don't do any work. Sheep shear themselves and willingly slit their own throats and barbeque themselves. Bread bakes itself. Cottages thatch themselves. 

But when they spend them in maintaining tradesmen and artificers, they may, all of them taken together, perhaps, maintain as great, or, on account of the waste which attends rustic hospitality, a greater number of people than before. Each of them, however, taken singly, contributes often but a very small share to the maintenance of any individual of this greater number. Each tradesman or artificer derives his subsistence from the employment, not of one, but of a hundred or a thousand different customers. Though in some measure obliged to them all, therefore, he is not absolutely dependent upon any one of them.

He is dependent on the State which provides national defence and a justice system. That's why he pays taxes.  


The personal expense of the great proprietors having in this manner gradually increased, it was impossible that the number of their retainers should not as gradually diminish till they were at last dismissed altogether. The same cause gradually led them to dismiss the unnecessary part of their tenants. Farms were enlarged, and the occupiers of land, notwithstanding the complaints of depopulation, reduced to the number necessary for cultivating it, according to the imperfect state of cultivation and improvement in those times. By the removal of the unnecessary mouths, and by exacting from the farmer the full value of the farm, a greater surplus, or what is the same thing, the price of a greater surplus, was obtained for the proprietor, which the merchants and manufacturers soon furnished him with a method of spending upon his own person in the same manner as he had done the rest. The same cause continuing to operate, he was desirous to raise his rents above what his lands, in the actual state of their improvement, could afford. His tenants could agree to this upon one condition only, that they should be secured in their possession for such a term of years as might give them time to recover with profit whatever they should lay out in the further improvement of the land. The expensive vanity of the landlord made him willing to accept of this condition; and hence the origin of long leases.

Why take a long lease when invaders or insurrectionists might usurp sovereignty? What drove productivity was the fact that more productive people, by hook or by crook, would gain land and other factors of production from the less productive. It was a Darwinian struggle for survival, not vanity or hedonism which caused the relations of production to change.  


Even a tenant at will, who pays the full value of the land, is not altogether dependent upon the landlord. The pecuniary advantages which they receive from one another are mutual and equal, and such a tenant will expose neither his life nor his fortune in the service of the proprietor. But if he has a lease for a long term of years, he is altogether independent; and his landlord must not expect from him the most trifling service beyond what is either expressly stipulated in the lease or imposed upon him by the common and known law of the country.

No. The Crown may demand much from the people for national defence. It is better to be impoverished by high taxes than to be enslaved.  


The tenants having in this manner become independent, and the retainers being dismissed, the great proprietors were no longer capable of interrupting the regular execution of justice or of disturbing the peace of the country. Having sold their birthright, not like Esau for a mess of pottage in time of hunger and necessity, but in the wantonness of plenty, for trinkets and baubles, fitter to be the playthings of children than the serious pursuits of men, they became as insignificant as any substantial burgher or tradesman in a city.

No. Some Scottish lairds rose in politics and statecraft to positions of international prominence. But some descendants of merchants or lawyers rose yet higher in the nobility and held great offices of state. 

It does not, perhaps, relate to the present subject, but I cannot help remarking it, that very old families, such as have possessed some considerable estate from father to son for many successive generations are very rare in commercial countries. In countries which have little commerce, on the contrary, such as Wales or the highlands of Scotland, they are very common.

But those who rose by commerce tended to marry into the older aristocracy. Moreover, where there was an absolute monarch, the old aristocracy tended to be degraded from generation to generation unless it served the state. But then many tiles of nobility were originally designations of political office.  

The Arabian histories seem to be all full of genealogies, and there is a history written by a Tartar Khan, which has been translated into several European languages, and which contains scarce anything else; a proof that ancient families are very common among those nations.

Genghis Khan got his start hunting marmosets. It is easy to create an ancient pedigree for a warrior who rose to the Crown by reason of his martial prowess.  

In countries where a rich man can spend his revenue in no other way than by maintaining as many people as it can maintain, he is not apt to run out, and his benevolence it seems is seldom so violent as to attempt to maintain more than he can afford.

Yet plenty such were bankrupted by their generosity. It turned out that the Church was a better husbandman of real estate but if it did not have the military power to defend its assets, it might lose everything.  

But where he can spend the greatest revenue upon his own person, he frequently has no bounds to his expense, because he frequently has no bounds to his vanity or to his affection for his own person.

This was also the case of Kings who were too lavish in their gifts to the Church or to artists or courtesans.  

In commercial countries, therefore, riches, in spite of the most violent regulations of law to prevent their dissipation, very seldom remain long in the same family.

Because families die out- at least in the paternal line.  

Among simple nations, on the contrary, they frequently do without any regulations of law, for among nations of shepherds, such as the Tartars and Arabs, the consumable nature of their property necessarily renders all such regulations impossible.

In such nations, almost everybody may be very poor.  

A revolution of the greatest importance to the public happiness was in this manner brought about by two different orders of people who had not the least intention to serve the public. To gratify the most childish vanity was the sole motive of the great proprietors. The merchants and artificers, much less ridiculous, acted merely from a view to their own interest, and in pursuit of their own pedlar principle of turning a penny wherever a penny was to be got. Neither of them had either knowledge or foresight of that great revolution which the folly of the one, and the industry of the other, was gradually bringing about.

This is foolish. Kings saw that by encouraging 'high value adding' crafts, their revenue could rise. Merchants saw the benefit of gaining 'royal warrants'. Foreigners are more likely to buy luxury goods endorsed by the leaders of the country producing those goods. We will pay more for the brand of cigar smoked by Fidel Castro just as we will pay more for the marmalade produced by the Company which has a Royal warrant from King Charles. 

It is thus that through the greater part of Europe the commerce and manufactures of cities, instead of being the effect, have been the cause and occasion of the improvement and cultivation of the country.

In Holland, it appears the reverse was the case. In England too, the need to raise productivity following the Black Death seems to have spurred urban development and the rise in manufacturing. 

Scotland was somewhat behind England. Even Hume and Smith, despite their great intellectual gifts and superb prose style, required aristocratic patrons. In England, Alexander Pope achieved opulence by supplying the market with a superior product. 

This order, however, being contrary to the natural course of things, is necessarily both slow and uncertain. Compare the slow progress of those European countries of which the wealth depends very much upon their commerce and manufactures with the rapid advances of our North American colonies, of which the wealth is founded altogether in agriculture.

We know Smith was wrong. The agricultural South was defeated by the industrial North.  

Through the greater part of Europe the number of inhabitants is not supposed to double in less than five hundred years. In several of our North American colonies, it is found to double in twenty or five-and-twenty years.

The indigenous population declined sharply. 

In Europe, the law of primogeniture and perpetuities of different kinds prevent the division of great estates, and thereby hinder the multiplication of small proprietors. A small proprietor, however, who knows every part of his little territory, who views it with all the affection which property, especially small property, naturally inspires, and who upon that account takes pleasure not only in cultivating but in adorning it, is generally of all improvers the most industrious, the most intelligent, and the most successful.

Till he realises he can make more money and work fewer hours by moving to the City. The big problem with being a small-holder is that your pigs sneer at you because you smell so bad.  

The same regulations, besides, keep so much land out of the market that there are always more capitals to buy than there is land to sell, so that what is sold always sells at a monopoly price.

Smith didn't know Economics. That's why he is considered the father of the subject. There is a disincentive to sell land precisely because it is relatively easy to borrow on its security.  

The rent never pays the interest of the purchase-money, and is, besides, burdened with repairs and other occasional charges to which the interest of money is not liable. To purchase land is everywhere in Europe a most unprofitable employment of a small capital.

I suppose this was true enough at that time. However the purchase of land was linked to greater political power and social influence.  

For the sake of the superior security, indeed, a man of moderate circumstances, when he retires from business, will sometimes choose to lay out his little capital in land. A man of profession too, whose revenue is derived from. another source, often loves to secure his savings in the same way. But a young man, who, instead of applying to trade or to some profession, should employ a capital of two or three thousand pounds in the purchase and cultivation of a small piece of land, might indeed expect to live very happily, and very independently, but must bid adieu forever to all hope of either great fortune or great illustration, which by a different employment of his stock he might have had the same chance of acquiring with other people. Such a person too, though he cannot aspire at being a proprietor, will often disdain to be a farmer. The small quantity of land, therefore, which is brought to market, and the high price of what is brought thither, prevents a great number of capitals from being employed in its cultivation and improvement which would otherwise have taken that direction. In North America, on the contrary, fifty or sixty pounds is often found a sufficient stock to begin a plantation with. The purchase and improvement of uncultivated land is there the most profitable employment of the smallest as well as of the greatest capitals, and the most direct road to all the fortune and illustration which can be acquired in that country. Such land, indeed, is in North America to be had almost for nothing, or at a price much below the value of the natural produce- a thing impossible in Europe, or, indeed, in any country where all lands have long been private property.

Land was scarce in Europe. It wasn't for Europeans who went to America and killed off the native population.  

If landed estates, however, were divided equally among all the children upon the death of any proprietor who left a numerous family, the estate would generally be sold.

That was what was happening to land owned by Catholics in Ireland. The consequence was the potato famine.  

So much land would come to market that it could no longer sell at a monopoly price. The free rent of the land would go nearer to pay the interest of the purchase-money, and a small capital might be employed in purchasing land as profitably as in any other way.

Land prices, in real terms, did fall from the 1880s onward.  

England, on account of the natural fertility of the soil, of the great extent of the sea-coast in proportion to that of the whole country, and of the many navigable rivers which run through it and afford the conveniency of water carriage to some of the most inland parts of it, is perhaps as well fitted by nature as any large country in Europe to be the seat of foreign commerce, of manufactures for distant sale, and of all the improvements which these can occasion.

Scotland would rise up thanks to the thrift, enterprise and innovative power of its inhabitants. 

From the beginning of the reign of Elizabeth too, the English legislature has been peculiarly attentive to the interests of commerce and manufactures, and in reality there is no country in Europe, Holland itself not excepted, of which the law is, upon the whole, more favourable to this sort of industry. Commerce and manufactures have accordingly been continually advancing during all this period. The cultivation and improvement of the country has, no doubt, been gradually advancing too; but it seems to have followed slowly, and at a distance, the more rapid progress of commerce and manufactures. The greater part of the country must probably have been cultivated before the reign of Elizabeth; and a very great part of it still remains uncultivated, and the cultivation of the far greater part much inferior to what it might be. The law of England, however, favours agriculture not only indirectly by the protection of commerce, but by several direct encouragements. Except in times of scarcity, the exportation of corn is not only free, but encouraged by a bounty. In times of moderate plenty, the importation of foreign corn is loaded with duties that amount to a prohibition. The importation of live cattle, except from Ireland, is prohibited at all times, and it is but of late that it was permitted from thence. Those who cultivate the land, therefore, have a monopoly against their countrymen for the two greatest and most important articles of land produce, bread and butcher's meat.

Indeed. Also, politically speaking, the shires were better represented than the emerging manufacturing towns. Indeed, some rotten boroughs had become thoroughly depopulated. Scottish highlands and islands would become depopulated at a later period. The 'landed interest' would decline in political power over the course of the nineteenth century. Nevertheless, the Squire and the Vicar would retain social prominence even into the Twentieth Century. Smith can't be blamed too much for failing to predict the future. What he can be blamed for is his obdurate clinging to the labour theory of value and his absurd suggestion that the nobility of old had been content to dress in rags while keeping open house for all the people of their territory. Sadly, the Scots got rid of feudalism some twenty years ago and so all land ownership there is now allodial. The result has been that Scottish people have reverted to cannibalism. Amartya Sen should have pointed this out to his friends north of the border. 



Thursday, 20 March 2025

Law & Morality. Hart vs Fuller

 What is the relationship between morality and the law? The answer is that laws and legal decisions make reference to morality. There may be moral clauses in contracts or professional codes of conduct. The morality of a motivation may decide whether an action was or wasn't culpable. Equally, morality takes cognizance of the law and recognizes that it is, generally speaking, immoral to break the law for some selfish purpose. However, the fact that two things refer to each other does not mean that either is inherently connected to the other. We can consider members of different religions living under the rule of a particular Emperor who establishes a law code for his own purposes. Each religion has a different morality yet, in their interactions, they may be obedient to the law. It would be strange to say that the morality of the Christian was inherently connected to the laws established by Caesar or, at a later date, once the Emperor had converted to Christianity, that Roman Law was inherently an expression of Christian morality. 

If a legal code has an expression as a deontic logic, might it not be the case that the law has an inherent morality? Lon Fuller argued that it did. However, his argument suffered from the ' no true Scotsman' fallacy. In other words, it is a subjective belief which a person is welcome to have because he thinks well of Scottish people and considers bad behaviour as un-Scottish. Fuller thought that for a legal system to be truly legitimate, it must adhere to certain principles of procedural morality, such as clarity, publicity, and non-retroactivity. These procedural principles, according to Fuller, are essential for ensuring that laws are just and worthy of obedience. The problem here is that you may have a Government in exile whose laws and just and worthy of obedience but which has no de facto power. Is it legitimate? The answer seems to be that it is only legitimate to the extent that some foreign power deems it to be so. But that is a political question and has nothing to do with 'inherent morality'. 

H.L.A Hart debated the matter with Fuller. Hart's view was in the tradition of positive law or law as command. Hart was willing to consider retroactive legislation to punish actions which were legal but abhorrent- e.g. punishing Nazis who 'just followed orders'- though he understood the dangers of this approach. One particular case mentioned during the debate concerned a German woman who denounced her husband, a soldier, as a critic of Hitler. A Court Martial sentenced him to death but he was sent to the Front and survived. After the war, he initiated proceedings against his wife for unjust deprivation of liberty and she was sent to jail. Since wives are under no obligation to pass information to the authorities and since she had a bad motive for her action, her punishment was considered salutary. Now, we might say it was abhorrent for the Judge to pass a sentence of death and that he too ought to be punished. The problem here is that under exigent circumstances, very harsh measures may have to be resorted to even in the most liberal societies. Moreover what is or isn't abhorrent is 'epistemic'- i.e. depends on our knowledge base. We are outraged when we read about homosexuals being sent to jail or having to suffer chemical castration not so very long ago in our own country. Yet, at that time, highly erroneous views on homosexuality were held even by some Doctors. 

Hart's 'rule of recognition'- by which 'what counts as law' is recognised- is not itself positive. It is epistemic. Moreover, there may be a strategic element to it. It sometimes pays not to recognize a guy to whom you money to. Does this make legal systems subject to indeterminacy? It would be easier to say that such systems have the right to be wrong or that legal systems are underdetermined- i.e. have more unknowns than 'equations'. If the rule of recognition is not itself positive and if morality too is epistemic, how do we demarcate a 'reprehensible' situation where judges have relied on morality rather than the law? We may agree that the wife who denounced her husband acted immorally. She was sent to jail for violating morality, not the law as it stood. Was that reprehensible? The short answer is no. She owed a legal duty to her husband which she violated. She was not legally obligated to report him to the authorities though she was permitted to do so. A legal duty may be of a moral nature just as it may be of an economic or punitive nature. 

The Hart-Fuller debate was based on informal and intensional fallacies. Hart was assuming that intensions of an epistemic kind can have well-defined 'extensions' (though there might be a 'penumbra' where some extra interpretation was required). But such is not the case. Equally, Fuller was assuming that 'impredicativity'- e.g. the overlap between morality and the law such that when one changes the other may also change- arose by reason of inherent similarity. Morality is inherently law-like. The Law is 'internally' moral. The problem here is that if both can have a representation as deontic logics then we would be entitled to say both are inherently mathematical because maths can have such a representation! But so can everything in Physics! We have abolished the distinction between Phusis and Nomos! 

This brings us to a separate question- viz. verification or 'witnesses'. We know that our morality changes when new facts become available and old assumptions are shown to be false. Legal decisions too may be overturned in this manner. A judge may rule a conviction 'unsafe' in the light of new evidence.

Returning to the story of the soldier's wife who got him sentenced to death at a Court Martial, a German Court of Appeal convicted her for 'indirect perpetration' under a law from 1871. Moreover, for the husband to have been found guilty, he would have had to had a mens rea which could not possibly arise in the context of the intimate relationship between man and wife. Was the Court Martial decision illegal? I suppose so but the dude wasn't killed. He was shipped off to the front which is what would have happened anyway. Indeed, that death sentence might have helped him if he fell into the hands of the Allies. It was a badge of honour. 

More generally, the German courts did preserve something of the legal order and there were some occasions where it shielded people from the Nazis. After the war, its higher courts found ways of punishing 'grudge informants' under pre-existing laws. The plain fact is, what is or isn't 'command' is an epistemic question. This means the intensional fallacy arises if you assume it must work in a particular way because your logic demands it. Sadly, where intensions don't have stable extensions, logic has no purchase. 

One final point. Judges can do stupid shit. This can cause the law to be disintermediated. This may be a superior outcome to trusting to the law rather than seeking other ways to protect yourself or to resolve conflicts. Hart & Fuller came from countries with good legal systems. They attracted skilled immigrants who wanted to live in well ordered societies. Stupid judges in shithole countries may have been doing their people a favour by increasing the incentive to emigrate. 

Wednesday, 19 March 2025

Chandrachud & the hopelessness of Equality Law

 


The Indian National University of Law held a conference last year to address the question 'is there hope for equality law?' The answer was obvious. If the legal system is seen as hopeless, there is no hope for any type of law. Why might the legal system be hopeless? The answer is that if it isn't raising total factor productivity then it is parasitic and will be increasingly disintermediated. Equality rises as general purpose productivity rises and people in poorer countries begin to converge to the material standards of living available in wealthier places. True, rapid economic growth in a country raises inequality within the country. That's a good thing. It sets off a Tardean mimetic effect such that people find ways to raise their own general purpose productivity in emulation of more successful people. 

Sadly, the good folk at the National Law University in Bangalore take a different view- 

Is There Hope for Equality Law?

Not in the US under Trump.  

After 10 successful iterations, as the conference travels to South Asia this year, we ask: is there hope for equality law? Inaugurating the global decolonial moment, the nations of the subcontinent constituted themselves into new republics with a lot of

ethnic cleansing. You either had dictatorship or dynasticism or a bit of both.  

optimism and creative energy expended in reimagining and setting up just and fair societies.

Nonsense! Killing infidels doesn't make society just or fair.  

Giving shape and form to the principle of equality in political, economic and social lives was foremost in their agenda.

Nope. Looting the country was foremost on the agenda. Also passing around the begging bowl. If Uncle Sam does not feed us and wipe our bums, we will starve to death.  

But today, in the twenty-first century, there are growing concerns in this region, as there are all over the world, about the rise of inequality.

It rose long ago. Under Nehru, Princes got fat Privy purses.  Mrs Gandhi got rid of this but created a Dynasty of her own. Rahul is deeply miffed that a lowly 'chai-wallah' now occupies the office held by his great grandfather, this grandmother and then his father. 

In the recent past, we have witnessed the growing awareness of different conceptions of equality,

e.g rapists with big dicks should be incarcerated in female prisons where they can beat and rape women. Equality means I'm a teenaged girl who should be crowned Prom Queen.  

including substantive and transformative equality, systemic and structural inequality, indirect and effects-based discrimination which have made it possible to respond not only to intentional harms but to institutional harms as well.

Sadly DOGE is ridding us of many of the harms these woke nutters created.  

There has also been an expansion in the canon of identity characteristics protected under equality law.

But that law leaves 90 percent of the working population to fend for itself. Even the 10 percent in the organized sector get little protection. Indian labour law says that nobody can be made to work for more than 48 hours. Tell that to a guy at INFOSYS. He will laugh himself to death.  

Yet, despite these gains and the centrality of equality to the political and legal order of so many countries, stakeholders around the world are questioning whether the legal right to equality is capable of addressing current inequalities.

They are asking whether the thing isn't a nuisance and a tool for harassment.  

There are concerns that equality law is not up to the challenges of the climate crisis;

also it can't prevent asteroids crashing into the Earth. 

ever-increasing wealth and income inequality; with the ever-widening disparities in access to rights and justice on the basis of religion, race, caste, sex and disability; tax injustice; growing informal work, the demonization of migration, the decay of democratic institutions, the power of multi-nationals, or the rise of artificial intelligence.

Most of these things have been ameliorated over the last few decades because total factor productivity has risen. Why pretend that the reverse is the case? If you keep crying wolf, nobody will help you when the wolf eats you.  

This conference asks the bold question: In light of the doubts on the relevance of equality, is there hope for equality law?

A society can choose to fall behind other countries by focusing on equality rather than efficiency. The problem is that it may be invaded. Just as there was a guns vs butter trade-off, there is a trade off between ensuring that the average soldier is disabled, drug addicted, and incessantly undergoing gender conversion surgery,  and not getting conquered by Putin's goons.  

The aim of the conference is to explore whether and how equality law can take the next step forward

by destroying employment 

and offer insights and remedies to contemporary global challenges. Scholars and activists have used equality law to diagnose how laws, policies and programmes have created or enhanced poverty, disadvantage, stereotypes, stigmas, prejudice, oppression, and social exclusion.

Bad laws can fuck up a country only so much because the courts can be disintermediated or ignored.  

These laws, policies and programmes have been challenged in domestic, regional, and international courts and decision-making bodies.

And then those challenges were themselves challenged.  

Although equality law has at best had a mixed record of success and failure, does it still have any untapped promise and potential to ensure that the world is fairer and more just for all peoples?

No. The Law has no magic power. It is merely a service industry. If it is shitty it will be disintermediated.  


We are seeking paper proposals that address the broad questions posed by the conference. We encourage proposals to explore the following concepts and questions: the tension between equality and other foundational values such as liberty or other ideologies such as neoliberalism or neocolonialism

That tension ended long ago when Communism crawled into a corner and died. Guys who gassed on about neoliberalism now face Trump who wants to put tariffs on everything. He also wants to conquer Canada and Greenland and maybe Panama. If Colonialism is back on the table, why gas on about neo-colonialism? 

the debates on the aims of equality law, such as debates on redistribution and recognition

Why am I not recognized as the cat who is also the Galactic overlord? Also, how about redistributing your wife to me?  

the role of affirmative action in redressing equality harms

Will affirmative action be struck down by the Bench? That's a better question.  

the role of proactive powers and duties

they have no role if there is no money to pay for them.  

the role of intersectionality in addressing systemic exploitation and oppression

i.e. letting thieves and muggers out of jail because their ancestors were exploited and oppressed.  

the challenges of achieving equality in specific fields of life such as:
 race, religion, caste, class and age discrimination (as illustration)

How come I'm not Pope? Is it coz I iz bleck?  

informal employment and lack of social protection

this problem gets worse the more laws are enacted.  

 land, water and material resources

we need armies and police forces to secure them. The law has no magic power.  

 Indigenous rights

White and black people must leave 'Turtle Island'  

 language, cultural and ways of life

Why isn't Arabic being taught in Texan schools?  

decolonization;

deporting Whites and Blacks from Turtle Island.  

 disability and ableism

Death is the biggest disability. Why are so few dead people getting hired as CEOs? 

 wealth and tax inequality

Law Professors should share their wealth with the custodial staff 

family, public life and gender

Heterosexual men must chop off their dicks. 

AI and technology

Ban everything. Let the Chinese take over the world.  

citizenship, migration and statelessness

Deport Americans. Bring in refugees.  

 climate crisis

Ban death. After than ban bad weather.  

 violence

Defund the police 

the impact of social justice movements on equality law

That impact was via legislatures. 

the relationship of equality law with rising authoritarianism and democratic decay
equality and international law

Equality law may indeed have fuelled the rise of Trumpism. 

CJI Chandrachud, with typical fatuity, addressed this useless Conference. 

“In a formal equality paradigm all institutions are assumed to be inherently fair and only require removal of formal barriers to entry.

Nothing wrong with assuming you and others will be fair and then acting in accordance with this assumption. 

However, how could institutions built in a hierarchy ridden world be so unquestionably egalitarian?

They could be if they were staffed by people who were assumed to be fair and who actually were fair. Equally, if institutions built in a fair world were staffed by people assumed to be unfair, they could not act in a fair manner. Expectations create reality.

Our systems are a creature of our creation

Not in India. The Brits created most of our systems.  

and reflect our social realities.

British realities, not Indian ones.  

The focus of equality and anti-discrimination law must now be to adopt a new role in different circumstances.

i.e. find new ways to fuck up the economy. Consider such and such Government Dept. or commercial Enterprise. Currently it is doing quite a good job. We must demand it do stupid, wasteful, shite in the name of equality and anti-discrimination. That way our country will fall further behind China. The air will become too poisonous to breathe. We will perish and be replaced by some race less interested in virtue signalling.  

As we look to a future fraught with climate change disasters and the use of technology, let's commit to creating equitable structures to address these issues at the outset.

This idiot does not know that there is a trade-off between equity and efficiency- i.e. achievement. If we commit to 'equitable structures' either they will be disintermediated or the economy will collapse. 

Equality is a moral, political and legal virtue.

No. It is a fact about the world which is useful for some purpose. I might say 'this Chinese electric car is fully equal in performance to a Tesla. Yet it costs one third as much. Let us buy the Chinese car'.  

It holds all our social commitments together. As the Scottish feminist thinker of the nineteenth century Frances Wright said ‘equality is the soul of liberty; there is, in fact, no liberty without it’.

She was wrong. The America she settled in had plenty of liberty precisely because it had even more inequality. What this meant was that Americans could kill any foreign or internal adversary.  

Chandrachud is a believer in contextual comparativism. But that means looking at countries which were once as poor as India and following their example. It doesn't mean comparing yourself to very rich countries. 

Consider the South Korean legal system which contributed to rapid growth from the Sixties onward. The first thing we note is that prosecution was inquisitorial- i.e. the focus was on detection and punishment. This meant that business owners couldn't do 'capital flight' through under-invoicing etc. Corrupt officials or politicians were caught and thrown in jail. The legislature passed pro-growth laws and the Courts ensured that implementation was fair and straightforward. One big difference between India and South Korea is that the latter has a very difficult National Judicial Exam and thus very few qualified lawyers- most of whom began their careers as prosecutors or sub-judges. In 2024, South Korea had 30,525 lawyers- a significant increase from 3,364 in 1997. Thus, it is only after South Korea's per capita income became 12 times greater than India that it had about the same number of lawyers per capita. But the South Korean lawyer has an average salary ten times that of his Indian counterpart. Why? Lawyers in South Korea raise total factor productivity. In India they lower it. 

 Chandrachud underlines the importance of institutional design in ensuring equity in access and process. Does he mean that more 'night-courts' and 'weekend courts' should be set up so that daily wage labourers have access to the Justice system? Does he advocate 'E-adalat'- i.e. electronic courts guided by generative AI on matters of law and which deliver judgments in vernacular languages? No. What he is talking about is Judges spending more time on showing off their knowledge of 'intersectionality' and 'cultural imperialism' in the course of lengthy judgments which end by referring the matter back to the very district court from which appeal was entertained 30 or 40 years ago. 

Turning to a genuine political and legal issue in India- viz. whether sub-classification within groups qualifying for affirmative action is permissible- Chandrachud considers it permissible. This means that the 'creamy layer' may find its entitlements are significantly curtailed. It remains to be seen whether reservations are renewed for another ten years in 2030. One reason Dr. Ambedkar wanted a sunset clause on affirmative action was that, as an economist, he knew that Economic growth causes greater and greater heterogeneity with the result that Equality Law becomes otiose since the underlying 'identity classes' are dissolving. More importantly, as we enter a period of rapid geopolitical change, which may be accompanied by a retreat from free trade, countries will have to focus on efficiency so as to remain competitive and capable of defending themselves. Equality had its moment in the Sun at a time when general purpose productivity was rising in the organized sector. But the gig economy and glaring differences in productivity brought about by new technology means that the Sun has set on Equality.


Rejecting Res Judicata turns Courts into perpetual motion machines

About 80% of the new cases brought before the Supreme Court involved Special Leave Petitions challenging orders of courts or tribunals. The acceptance rate of these SLP is high. Fully 40% of the cases heard by the SC are Special Leave Petitions. Currently there are 33,000 SLP cases in progress. Since about 44 percent result in reversal there is a clear incentive to bring them. The problem is that the Supreme Court isn't content to undermine stare decisis in lower courts, it will do the same to its own decisions. 

In Property Owners Association v State of Maharashtra 2024, CJI Chandrachud wrote the judgment of a nine member bench on an appeal on this matter dating to 2002. The case had previously been heard by a three member bench in 1996 which thought a five member bench (i.e. a 'constitution bench') was needed. This was done in 2001. The five judges decided that a seven member bench was needed. The next year, such a bench decided that a nine member bench was needed. 22 years later, such a bench directed the Registry to obtain administrative instructions from the Chief Justice for placing the matters before an appropriate bench for further proceedings! Forget about 'Res Judicata'! The Supreme Court is a perpetual motion machine creating more and more work for itself such that no decisions are ever made! 

 Meanwhile the underlying problem- viz. that the pre-1992 Repair Board which had been doing a fairly good job of  maintaining 'cessed' buildings had been replaced by the much less productive  MHADA- had greatly worsened as more and more buildings collapsed during the monsoons. Even if the CJI, who isn't an architect and doesn't know anything about repairing old buildings, gives lots of lovely instructions such that lots of cases can be brought before 'appropriate benches' and even if all those benches decide that what is needed is bigger and bigger benches to decide the case, still, the underlying problem will either worsen or disappear by itself. 

 Still, this judgment of Chandrachud's did attract adverse comment. The evil bastard was rejecting Socialist ideology! But this wasn't really the case.  The Bench merely affirmed that the Government could take away any private property if they thought it truly essential for the community's well-being. But this was already the settled view of the Courts! The time judges spent on this matter was time entirely wasted. 

In another case involving Waqf property, Chandrachud found that Res Judicata can be challenged by anything at all! But what was the outcome? The matter was sent back to the District Court. What is to prevent another thirty or forty years of appeals which will culminate with the Supreme Court sending the matter back to the District Court? Meanwhile all sorts of people are being harassed by claims that their ancestral property is actually Waqf land. Since none of the cases are ever resolved, this uncertainty will persist unless violent action is taken such that the nuisance ends. But that is the law of the Jungle!  

Chandrachooth on Intersectionality

Rights are only effective if linked to incentive compatible remedies under a bond of law. In other words, it must be in the interest of the obligation holder to supply the remedy otherwise the obligation holder will find some way to evade or avoid that responsibility. Human rights guaranteed by the Government are only effective if the Government has the necessary resources to supply the remedy. If it doesn't have the resources, the remedy will be rationed or its provision will be purely cosmetic.

Former CJI Chandrachud, speaking at King's College, never once mentions the question of the resources available for the provision of remedies- more particularly the 'remedies without rights' which the Indian Bench has been so keen on. What Chandr Chooth does talk about is modish Left-Liberal ideas like 'intersectionality'-

 intersectional discrimination, where many factors including gender, caste and disability play a role in the commission of heinous offence on say, a visually challenged woman belonging to the Scheduled Caste. In Patan Jamal Vali v. State of Andhra Pradesh , the Court stressed that the factors causing intersectional discrimination must be assessed while determining the sentence of a convict.

There was no need. The victim belonged to a Scheduled Caste and thus the Prevention of Atrocities Act of 1989 applied. This just meant that he got more concurrent life sentences. The victim was also blind and so an additional concurrent sentence could be imposed. There was no need to drag in 'intersectionality' because Indian law had already differentiated between crimes against Scheduled Castes and Tribes. The rapist was a poor coolie and nobody cared what happened to him. The question before the court was whether PoA was applicable even if the offender neither knew nor cared about the caste of the victim. It was decided that it was applicable though the Court left open the question of whether prosecution under the Act 'can be sustained as long as caste identity is one of the grounds for the occurrence of the offence'. If the Court had said that Dalit on Dalit crime (for offenses carrying a jail term of ten years or more) came under the Act by reason of difference in gender or disability, then 'intersectionality' would arise. But such was not the case. 

These factors do not operate in isolation and are deeply imbedded in our society.

What is embedded in Indian society is poverty. The 1989 Act made provision for Special Courts. Only one third of Districts have any such thing. Moreover, pendency has been rising and convictions have been falling. Instead the PoA act is used as a tool of harassment.  

The only possible way of creating a more inclusive society is to

grow the economy by raising general purpose productivity such that people have more opportunities to earn.  

recognize these causes of discrimination through our judicial work and even in our every day lives.

There is no need for any such recognition because those causes are blindingly obvious. What is needed is better functioning courts. But this means more resources must be made available. That means tax revenue has to rise which in turn entails raising Total factor productivity. If Courts are used to harass people and criminalize employers and entrepreneurs, then productivity will stagnate. Courts will become ineffective. They will be disintermediated as people turn to local gangsters to deal out rough justice.  

The struggles of the LGBTQ community have found a voice in the courts.

The court enjoys virtue signalling. But nobody had been prosecuted under anti-sodomy laws since 1920. Just as it makes no difference to a prisoner if he is serving one or two or even one hundred concurrent life sentences, so too, homosexuals gained nothing by the Bench's grandstanding on this issue.  

The members of the LGBTQ community have lived, thrived, endured and loved through the beginning of time. In the face of stigma and prejudice, many have been forced to live their lives closeted from the “straight” society.

This remains the case if the local people will apply Sharia law to them if they come out of the closet.  

In turn, they have created their own communities, found liberation in solidarity as they together resisted the heteronormative order and have crafted their own language of “being” when the labels that the society gave them fell short of the diversity that they had to offer to the world.

Mere verbiage. The fact is, the Hindus don't seem to have greatly cared about this issue and even Muslims tended to be tolerant of Homosexuality. This is an artificial problem. It pretends that draconian punishments and persecution of a sort which existed in some Protestant countries also prevailed in India.  

LGBTQ liberation movements are gaining momentum today in India and have achieved certain legal milestones that I will be discussing today. 14. The first significant case that advanced the rights of the LGBTQ community was National Legal Services Authority v. Union of India & Others .

The 'hijras' are politically important and have gained legal recognition even in Pakistan and Bangladesh. 

The judgment of the Court detailed the deep cultural, societal and religious recognition given to transgender persons in India. It recognised the different kinds of communities of transgender persons in India and the suffering they had witnessed. In recounting the discrimination faced by transgender persons, the  Court held that non-recognition of the true identity of transgender persons led to exacerbation of the social stigma they faced.

Hijras are a nuisance but nobody wants to get on the wrong side of them. Their true identity is well known which is why there is a social stigma against them. Still, you have to pay them off if they turn up at your doorstep because a son has been born to you. It is vitally important that the Bench recognizes the intersectionality of the cultural imperialism of the Neo-Liberalism of the Patriarchy by usurping more and more power so as to create yet more ways of harassing wealth creators and employment generators. On the other hand, kidnapping and castrating boys and giving them female hormones so they can money as prostitutes is a very noble and enlightened practice. If only Chandrachooth's daddy had permitted this to happen to his son, we would all be very happy. 

This made them vulnerable to exploitation, and hindered their access to public places, employment opportunities and placed a bar on their freedom of expression.

Very true. Most hijras want to get jobs with INFOSYS.  As kids they actively sought out kidnappers who would cut their dicks off and turn them into prostitutes.

Such a life without dignity struck at the heart of the fundamental rights guaranteed under the Indian Constitution. 

Getting kidnapped and having your dick cut off is a fundamental right.  

In my opinion in Navtej Johar, I invoked the principle of indirect discrimination to argue that although Section 377 is neutrally worded,

you aren't allowed to sodomize either males or females 

its effect and operation infringes the fundamental rights of the members of the LGBTQ community.

especially those who were kidnapped and who had their dicks cut off.  

The Bench's zeal to appear politically correct has led to absurd outcomes

In recent years, the Indian Supreme Court’s jurisprudence has also advanced in the field of disability law. At the legislative level, efforts had already been made to ensure that persons with disability are not subjected to discrimination with the introduction of the Rights of Persons with Disabilities Act. In Vikas Kumar v. UPSC , the Indian Supreme Court held that an individual suffering from writer’s cramp is entitled to the provision of a scribe for appearing in Civil Services Examination. The court held that denial of the scribe on the basis that the petitioner did not have a benchmark disability of 40 per cent or more violated the provisions of the Rights of Persons with Disabilities Act since every person with a disability is entitled to reasonable accommodation.

Vikas Kumar did not have a disability. A guy with 'writer's cramp' is not going to be a good civil servant. It is a different matter that a Nation may want blind people or those with cerebral palsy to become civil servants. They may have lived experience of disability and thus may be able to contribute to discussion of how productivity for disabled people can be raised. What the Bench has done is make it easier for people like Puja Khedkar- the daughter of an IAS officer- to unfairly claim various concessions meant for the genuinely disabled so as to get into the Civil Service. It was her high handed behaviour as an IAS officer which got her into trouble. Now the top Court is having its time wasted on this case as the prosecution seeks to deny her appeal for anticipatory bail. This is typical of the Indian Bench. They make a crazy decision as a result of which there will be more and more appeals coming before them.  

The Court recognized that the principle of reasonable accommodation

for the disabled, not for people who have 'writer's cramp' or 'exam nerves' or something of that sort.  

is at the heart of the values of substantive equality and human dignity recognized by the Constitution. Writing the judgement, I emphasized that, “[w]hen competent persons with disabilities are unable to realize their full potential due to the barriers posed in their path, our society suffers, as much, if not more, as do the disabled people involved. In their blooming and blossoming, we all bloom and blossom.”

But this dude was no more disabled than Puja Khedkar.  Still, it is undeniable that everybody is so fucking disabled that there is a fundamental duty to ensure they get Government jobs. 

In Ravindra Kumar Dhariwal v. Union of India

a crazy drug-addict who kept threatening to shoot people 

, the Indian Supreme Court addressed workplace discrimination against persons with mental health conditions. In that case, a central reserve police force officer was diagnosed with OCD and secondary major depression and was found to be having 40-70% mental disability.

He sometimes said he was mentally ill and sometimes said he wasn't. Different Psychiatrists may have come to different conclusion

In a judgement authored by me, the Supreme Court held that initiation of disciplinary proceedings against him was indirectly discriminatory because persons with mental disability are at a disproportionate disadvantage of being subjected to such proceedings in comparison to their able-bodied counterparts.

Actually, Chandrachud's reasoning was more subtle- '  The respondent (i.e. the Government agency) holds a privilege under the 2002 notification to not comply with the principles of non-discrimination and reasonable accommodation provided under Section 47 of the PwD Act. 

In other words, you can fire a guy who beats up a fellow officer and threatens to start shooting. 

However, for a privilege to accrue in terms of Section 6 of the GCA, mere expectation or hope is not sufficient. Rather, the privilege-holder must have done an act to avail of the right. The privilege provided by the 2002 notification would accrue only when one of the punishments provided under Section 47 has been imposed. However, in the instant case, the disciplinary proceedings were challenged even before the punishment stage could be reached. Therefore, the privilege available to the respondent under the 2002 notification was not accrued in terms of Section 6 of the GCA.

In other words, Chandrachooth is saying the Government Agency was dilatory. It had slept on its rights. Was this actually the case? Arguably disciplinary proceedings are themselves a punishment and have always been regarded as such. True, complete exoneration would have the effect of completely cancelling out the punitive aspect of such proceedings. But such was not the case in this instance. 

We held that while all para military personnel may be subject to disciplinary proceedings on charges of misconduct, the appellant was more vulnerable to engage in behavior that could be classified as misconduct because of his mental disability.

This is typical of Chandrachooth's reasoning. Whether a person is or is not disabled is a matter of fact not law. Moreover, a person receiving treatment for a mental disorder is either not fit to work- in which case he must not come to work- or else is not more liable to misconduct than other officers, though his efficiency may be impaired. In this case, there was grave misconduct even after the officer started receiving medical care. 

Chandrachooth lays aside the facts of the case and assumes what has not been proved- in this case that people receiving medical treatment for mental illness are more likely to misconduct themselves if they come to work. In other words, he chooses his own facts and interprets the law just as he pleases. But such judgments are unsafe. The effect of this judgment would be to create a defence for any Government employee accused of any type of crime. They could say 'had I been disabled, I'd have committed the crime because of my disability- e.g. I'd have stolen that money because I had a delusion that it was actually my money. The Court must follow Chandrachooth in deeming me to have been disabled at that time and thus acquit me of misconduct because crazy peeps are bound to misconduct themselves.'  

As a relief, we directed that the officer to be reasonably accommodated and be given a suitable post.

I suppose this would have happened anyway. There was a feeling that he had gone crazy while on active service in the insurgency infected North East.  

Conclusion . All of these instances and more show the path that the Indian Supreme Court has taken to protect human rights and civil liberties for different sections of the society in a democracy.

It has done nothing save 'virtue signal' and, in Chandrachooth's case, make modish reference to 'intersectionality' and 'cultural imperialism'.  

The role of courts in a democracy is informed by the civil and political structure, the social fabric, and the customs and traditions of society.

Either Courts promote total factor productivity or they get disintermediated. In India, the higher Courts are clogged up with suits pertaining to Government departments or employees of the Government. But, if the Government goes off a fiscal cliff, there will be no money to provide Court mandated remedies.  

Very often however, the Supreme Court, is thought of as the first line of defence or the one stop solution to resolve complicated issues of policy and society.

Governments like kicking the can down the road into the Courts so as to delay matters. But delay is not defence. It is merely delay.  

The use of the court as the first line of defence to solve complicated social issues is a reflection of the waning power of discourse and consensus building.

Neither had any power whatsoever. Fine words butter no parsnips. There may be  a consensus that rich people should give us lots of money and also come and wipe our bums for us. But rich people will do no such thing. Most have acquired foreign passports and have offshored their assets.  

If we allow our local laws, institutions and practices to be co-opted by the forces of racism, casteism and discrimination,

e.g. persecuting Hindus for their religious and social practices but not interfering with Muslims in any way 

all our social problems will have to be taken out of deliberative fora and placed before the court.

The Court is a deliberative fora. But its deliberations are meaningless if there is no incentive to provide the remedies they mandate.  

Our ever-expanding list of rights risks trivialising the essential core of rights without really advancing the important social issues that we have reconceptualised as rights.

The thing is a nuisance. Curb it by all means. 

The growing litigious trend in the country is indicative of the lack of patience in the political discourse.

No. It is a way to get cheap publicity.  

This results in a slippery slope where courts are regarded as the only organ of the State for realization of rights-

No. It is the only organ where self-important nutters can pose and posture.  

obviating the need for continuous engagement with the legislature and the executive.

Ambanis and Adanis know how to do that type of engagement. Self-important nutters go to Court.  

It is true that the Supreme Court of India must protect the fundamental rights of persons and perform its constitutional duty.

It has never been able to do so. In Pakistan and Bangladesh, the Bench has been cut down to size. It may not happen in India because everybody already ignores the Bench.  

However, it cannot and must not transcend its role by deciding issues requiring  the involvement of elected representatives.

In other words, Judges mustn't get too big for their boots. In Bangladesh, the Chief Justice was threatened by the students and so he resigned.  

That would not only be a deviation from its constitutional role but would not serve a democratic society, which at its core, must resolve issues through public deliberation, discourse and the engagement of citizens with their representatives and the Constitution.

No. Public deliberation does not matter. What matters is imitating what successful countries have done. This means making a bonfire of all sorts of paternalistic labour and land and other such laws.  

Refining our rights rhetoric to include participative processes and as well as substantive outcomes is one step towards recognising the complementary roles the political and legal spheres of the Constitution play in protecting our human rights.

No. Looking at substantive outcomes causes us to despair of both the Bench and the Legislature.  

The fulfillment of the ideals of our Constitution and the protections guaranteed under it cannot only be achieved by exercising our role as citizens once every five years. There must be a continuous engagement with all the pillars of democracy.

No. There must be an increase in general purpose productivity. The compliance and regulatory burden on enterprises must be reduced so total factor productivity can go up. Talking and engaging and building consensus does no good whatsoever.

The Law is a service industry just like the software or BPO industry. But productivity has risen a great deal in the latter two industries. It has fallen or stagnated in the Legal profession. The total Indian legal market is about 1.3 billion dollars a year- about 0.1 percent of the global market. Tiny Singapore has a legal market of about 2.4 billion. Indeed it exports about 0.9 billion! By contrast the software industry is about 255 billion dollars. There was a time when smart kids wanted to be lawyers. By the time Chandrachooth got to Harvard, this was no longer the case. Smart kids wanted to be software engineers. Technology has made Indian lives better. The Law has made Indian lives worse. That is why its footprint is shrinking and it is increasingly being disintermediated. 

Chandrachooth may be an aberration. He returned to India from Harvard with a head stuffed full of nonsense. He forgets that India generates about 8 dollars per man-hour of work. America generates over 80.  Bridging that gap is what turns notional 'rights' into realities. 

Tuesday, 18 March 2025

Chandrachud's kut-niti vs. Nyaya as Artha

St. Columba's School, in Delhi, does an excellent job of teaching English and Mathematics and Physics. Sanskrit, however, is not emphasized. I believe you are supposed to pass an exam in it in the Eighth standard but the rule wasn't strictly enforced when former CJI Chandrachud and I were studying there. However, even the most deracinated St. Columban knows that the word for law in Sanskrit is not, as Chandrachud now says, 'niti'- which means policy and is something decided by a 'neta' or leader. Rather it is vidhi- a mandatory injunction. An observance is a niyam and 'Nyaya' is the word for Justice. In Hindi, we speak of kanoon which derives from the Greek 'canon' via Arabic and Persian. It is notable that in the Hindi version of the Indian Constitution, 'vidhi' is used for 'law' or 'kanoon'. Chandrachud does not appear to know this. 

I should mention 'Nyaya' is linked to 'Artha' because the proper hermeneutic to apply is pragmatic or instrumental. In other words, 'meaning' is 'cash value'. It is economia, not akreibia- i.e. discretionary and defeasible rather than rigid or narrow. In other words, it already contains its own equitable principle such that where the law falls short by reason of too great generality, there is an equitable remedy. But the same is true when there is 'akreibia'- i.e. the fault of seeking greater precision than the subject matter affords. In this Indian 'dharmashastras' are at one with Greek and Latin jurisprudence. Dharma was translated by Indo-Greeks as 'eusebia' (Latin- pietas) and economia rather akreibia is recommended in the pursuit of this great, eusocial, goal. 

The law is a defeasible 'samskar' whose aim is to improve economic outcomes. In this sense, everything is 'res integra' till Authority decides policy in consonance with due process of Law. Justiciability is narrow and can only be concerned with that purely formal, not substantive, consonance. Otherwise, Authority has been usurped from what is Sovereign to a merely adjudicative body. Well and good, if it can raise taxes and pay for its own Armies. Otherwise, this is merely imbecility or hubris of a type which invites its own swift Nemesis. 

A crooked-policy (kutniti) may worsen economic outcomes so that some particular clique can extract a rent or maintain their higher status. But the thing is repugnant. Don't do it. Improve Society by raising productivity. Don't be a Social Justice Warrior who kills off the golden goose of industry. Learn how to draw up a contract or a will which stands up in court. Get together with a good Accountant and a guy who is good at Marketing or Social Media or whatever and see whether you can add value to existing businesses in your area. Start now. Don't wait till you get your credentials. 

In a recent speech given to law graduates, Chandrachud equated 'niti' with law and 'nyay' with Justice. Why? The silly man has been reading Amartya Sen who propounded a 'nyaya-niti' distinction. This corresponded to getting rid of 'doctrine of political question' (i.e. policy matters are not justiciable per se) so as to concentrate all power in the Bench. But that has never worked. The Legislature passes Budgets and raises Taxes and pays for Armies. Judges can't usurp that function. 

Chandrachud sometimes quotes Lon Fuller who warned judges against 'the morality of aspiration' as opposed to the 'morality of duty'. The legal system is deontic- i.e. concerned with duties arising out of a vinculum juris. It is not concerned with aspirations to higher types of virtue or duty which are the province of the clergyman or the poet or the idealistic rhetorician. In Chandrachud's judgments we find too much 'aspiration' and too little 'duty'. 

Indians who study law in India have few illusions about the Indian judicial system. It is a mark of Chandrachooth's deracination that he tells young Indian lawyers-

At many points in your career, you will realise that what is legal is probably unjust whereas what is just may not be always legal.

 The task of the lawyer is to find legal remedies for injustices suffered by his client. The problem is that there may be no injustice. No doubt, from the 'aspirational' point of view everything that is, is unjust. Future generations will think ill of us because we tolerate a repugnant state of affairs. But what is repugnant is a movable feast. The starving have to eat things which the rich turn their noses up at. Yet, to climb out of poverty is an arduous process. It is those who had stronger reason to fear starvation who expended greater efforts to accumulate skills and resources such that their descendants could take opulence for granted. 

I believe Chandrachud is an admirer of Lon L. Fuller's theory that a system of law has an 'internal morality'. But, since judges are paid by the tax-payer, surely that morality should involve considering how to raise total factor productivity? This, it seems to me, is what Fuller type 'Eunomics' would involve. Yet, Chandrachud himself invoked Fuller and the notion of a 'polycentric web' in his dissenting judgment in Aadhar. This begs the question, why should the Government meet a higher standard of justification? Structured proportionality is either utilitarian- i.e. 'greatest good of the greatest number'- or it places a higher value on liberty in a manner that the Constitution of India, particularly the first amendment, emphatically rules out. It appears that Chandrachud thinks judges are like novelists who should feel free to write anything they like in the next chapter of a novel even if it is inconsistent with what went before. This is the doctrine of a hippy, not a Harvard trained legal scholar. 

This is where your law school training of learning to critique the law will come in handy....

Law schools train you in understanding and applying the law, not in critiquing it. Economists or Political Scientists or Philosophers or polemicists may be better at critique. Chandrachud, it appears, may have had his brains destroyed at Harvard Law School.  

You must remember the importance of differentiating between law and justice and critiquing the law as a step to advance justice.

Legislators are authorized not just to critique but to change the law. Lawyers are officers of the court. They are expected to show deference to judges and to uphold the laws as they are written. Critique may be done in specific forums- e.g. journals of jurisprudence- but it is out of place in the ordinary course of a lawyer's business. 

Niti, in other words, does not always result in Nyay,"

Niti means policy. The Executive is the 'Neta' which decides and implements policy. This may be subject to judicial review. But what Judges can't do is decide policy. Where this occurs, we say the Executive & Legislature implicitly delegated that function to the Court. But they do not lose that right or that function just because they slept upon it. The moment the Bench is defied by the Executive, its authority collapses. The animals of the jungle may flee before a jackal which strides in front of a lion. But the jackal has no inherent power. 

Chandrachud said-

"Stepping into the world as fresh graduates amidst the increasing noise and confusion of political, social and moral clashes of ideologies, you must be guided by the path of your own conscience and equitable reason.

No. Lawyers must be guided by the science of law. Everybody has a conscience. Everybody has a feeling for what they think is required by an equitable rule of reason. But lawyers must tell their clients what the 'per se' rule is. True, they might be able to persuade the Court to apply an equitable remedy. But what are the relevant costs and benefits? That is what lawyers must inform their clients about. 

What Chandrachud is doing is encouraging ignorant youngsters to bring all sorts of nonsensical PILs while telling their paying clients fairy tales.  There are old and rich advocates or failed politicians who can take this path. But they create a nuisance. Chandrachud was a Peter Pan type of figure who did nothing to curb this nuisance.  

Speak truth to power,

Don't reveal confidential information about your client to powerful people. Chandrachud doesn't think before he opens his mouth.  

maintain your composure in the face of unspeakable social injustices

No. You are welcome to lose your composure under those circumstances. It is in Court that you need to maintain decorum.  

and utilise your good fortune and privileged positions to remedy them,"

The bad luck of your clients is the source of your fortune unless you stick to boring commercial work. 

Being accepting and tolerant of the opinions of others

is irrelevant.  

by no means translates into blind conformity and it does not mean not standing up against hate speech

It doesn't mean anything at all. Chandrachud hasn't put his brain in gear.  

You may encounter people who will tell you the situation is much better than before or better than situation in other places.

You may encounter this shithead talking bollocks.  

However, the journey to justice does not stop midpoint or where we feel that we are less unjust than the others

There is no journey to justice. The thing is a service industry just like Banking or Insurance. If it is shit, it will be disintermediated or ignored.  

Not content with channelling Sen, Chandrachud mentions the cretin Iris Young. 

"As Iris Young discusses, cultural imperialism

e.g. deracinated cunts like Chandrachud interfering in the ancient religious practices of Hindus 

is one of the faces of oppression faced by marginalised groups

This stupid cunt does not know that India was ruled by the British. Indians weren't 'marginalized'. They weren't a minority. But they were subject to imperialism- including linguistic and cultural imperialism. Chandrachud may be Brown, but he is the face of cultural imperialism in India. Call him a cunt and tell him to go fuck himself. That's a type of parrhesia we can all get behind.  

and she knows how the dominant culture will always define such groups as deviant...

Chandrachud is now pretending to be 'Sanatani'. But he also thinks 'niti' means law. Thankfully, his own 'culture'- viz. that of Harvard Law School back in the Eighties- had stopped being dominant in America. Vance says the Executive can defy the Bench with impunity.  

in other words respectability politics may sometimes even lead to further marginalisation of sub-groups," he said.

Being ignored or actively derided will marginalize the tiny sub-group which is the 'Collegium'.  

He then proceeded to differentiate between law and justice

The law is only concerned with justiciability. If the Bench says everything is justiciable, very soon nothing will be. Either the Bench replaces the Executive,  and raises taxes and fields Armies on its own authority, or it is ignored or disintermediated.  

and the importance of social justice lawyering.

The thing is a nuisance. If you raise compliance costs or the regulatory burden in a field, there is less output and employment. Those who beat and kill officers of the Court monopolize the industry.  

In this regard, he quoted from William Quigley's 'Letter to a Law Student interested in Social Justice'

India's productivity per hour is $8 per hour. It is $82 per hour in the US. America can afford Social Justice. India can't. What this stupid cunt should be talking about is how lawyers can raise total factor productivity. If they don't contribute to this, they will be disintermediated.  

"A lot of work which leads to achieving justice within law also happens outside the law in terms of social movements, faith in politics and cultural understanding.

Actual work is productive work- i.e. stuff which results in more goods and services being produced. India needs to raise general purpose productivity. It doesn't need virtue signalling shitheads like Chandrachooth.  

In our own context we don't have to look too far to decipher the difference between law and justice.

Justice, David Hume said, has utility. It raises total factor productivity. It has nothing to do with stupid prejudices or what is or isn't politically correct.  

It was only in 2005 that

only Hindu but not Muslim or Christian 

women were granted interest in coparcenary property and were given equality in terms of succession to property.

in other words, there will be increased fragmentation of agricultural land and SMEs will break up more often. Also, there will be more cousin marriage, lower female participation, and 'out of caste' marriages will lead to murder. Still, so long as the Lutyens' elite gets to pat itself on the back, who gives an actual fuck? 

Until the longest time in our history, there was no legislation regulating child labour.

In my, and Chandrachud's, lifetime, there has been plenty of such legislation. It doesn't work. It is useless. At one time maybe political parties could squeeze a bit of money out of bigger employers of child or bonded labour. But they found it cheaper to kidnap and kill politicians till they themselves got paid off.  

Minimum wages across the world are a result of recent labour movements.

They are useless. This silly man doesn't get that productivity has to rise otherwise there are no jobs. This doesn't mean people don't work in the unorganized sector. It just means what they are doing isn't a job. There is no employer per se.  

'During your own time at law school, Section 377 of the Indian Penal Code which criminalised sexual relations even between consenting adults of the same gender was the law of the land.

Only 5 people were ever prosecuted under it up to 1920. After that it wasn't used at all. This was pure gesture politics. It changed absolutely nothing. 

It was only in Navtej Singh Jauhar v. Union of India, a bench of which I was part of that the Supreme Court held that Section 377 was unconstitutional," 

Sadly, that judgment was itself unconstitutional. As a previous Bench had observed, it was up to the Legislature to provide the remedy. My point is what the Bench gives, the Bench can take away. It if usurps the right to say what is or isn't constitutional, it can itself be reconstituted to make the constitution mean anything at all.  

He also added that pursuing a career in social justice lawyering may not be for everyone as graduates from impoverished backgrounds might have education loans to pay off and might, therefore, have to take up high-paying jobs.

They won't get them. 90 per cent of lawyers make their money from 'bureaucratic facilitation'- i.e. filling out forms and standing in a queue at Government offices. The total legal market in India is only about 1.3 billion dollars. That's about 0.5 percent (ppp) of the global market. There are probably about 1.7 million lawyers in India. There are over twelve hundred law schools churning out 100,000 lawyers every year. Chandrachud should stop gassing on about 'Social Justice' and tell these kids to concentrate on getting their clients to do business with each other so as to make a money drafting contracts and arranging loans etc. 

"But one can promote Constitutional values and social justice if you imbibe Constitutional morality in the way you conduct your professional life regardless of the career you pursue," 

Very true. Beggars can promote constitutional values by begging outside the courts where they hoped to practice.  

Chandrachud hoped law students would 'refrain from perpetuating the traditional formalistic approaches to law.'
Stuff like actually knowing the law. 
' Instead, you should strive to adopt a legal approach that puts at its center the quotidian lives of people, who struggle on a daily basis to make their ends meet and take care of their family. That is the true redemption of justice.' 
Don't be a lawyer. Become a Social Worker. 
The Supreme Court judge also stressed on the importance of reinterpreting law.

in other words, increase uncertainty so that investment falls and, at the margin, firms exit the jurisdiction.  

"Along with critiquing law, it is important to simultaneously look for ways in which laws can be reimagined and redefined to make them better and more just.

These cunts are too stupid to do any such thing.  

The reinterpretation of law takes place as much through the lawyer's vision as through the judges craft," he stated.

But Indian lawyers and Indian judges are shit. There's a good reason why the Indian legal market is so small. It is merely a tool of harassment & delay. 

Consider Singapore. Its legal market is twice the size of India and it exports 0.9 billion of legal services. I don't know what proportion of that is Indian in origin but I believe that if Indian courts weren't so utterly shit and there were better tax-breaks for start-ups there would be 2 billion of Indian origin (i.e. contracting parties are Indian) business coming to Indian lawyers in India. This would have a multiplier effect for other service industries.

Importantly, he said that lawyers should not be afraid of failures.

They should be afraid of being as poor as fuck because their industry is focused on 'social justice' rather than raising total factor productivity. Look at the Indian software industry. It earns the country money, some of which can be given to the poor.  

"Always remember to not be afraid of failure. As a matter of fact, if you are not trying to achieve things when you are falling, you are probably not even trying to meet you potential because it is only at that edge that you will receive equal amounts of success and lawyer.

I suppose he means job-satisfaction as a lawyer. The problem is that these cunts have been getting a lot of satisfaction out of fucking up the country, destroying their own profession, and creating the conditions for a backlash of the sort Trump's America is witnessing.  

And if you are in the space of social lawyering, always remember that

you are a virtue signalling cunt. Anyway, a criminalized Trade Union leader (who may have a law degree) can do a better job extorting money from local employers, till they go bankrupt or run away. But that's what Social Justice means.  

never has justice been achieved in any movement without encountering failure, criticism or chaos," 

The Indian legal system is chaotic. Chandrachooth was the Master-bator of the Roster of Disaster.

He also cautioned against being swayed by social media distractions.

Chandrachooth has an 'only fans' page- right? Don't get distracted by it.  

"It also helps to remember especially the world of social media with a limited attention spans, that a lot of work you do will have only long term impact

of a wholly mischievous type 

and you should not worry too much about the everyday distractions that will become a given in your path," he opined.

The everyday distraction will be to earn enough to put food on the table.  

Before winding up he added that "as young wide eyed graduates, you must aspire to attain utopia, for the harbingers of change are often hopeless dreamers."

The Indian judiciary needs to change. Court administration must be separated and streamlined. Justice is a knowledge based service industry just like the software or BPO industry. To restore the prestige of the legal profession, productivity has to rise. The word Utopia means 'nowhere'. Hopeless dreamers and senile shitheads are welcome to fuck off to Utopia. But young Indian law graduates need to understand Coase Posner style Law & Econ. They can add value and contribute to Total factor productivity by telling Social Justice to go fuck itself. Grow the Economy if you want a better Society.  

Sunday, 16 March 2025

Jason Stanley vs Christopher Rufo

Last month, the Guardian carried the following article by Jason Stanley.
We are witnessing the rise of a new Republican ‘Southern Strategy’

The Republicans have been poaching white votes in the South since the time of Goldwater and Nixon. What matters now is whether they can hang on to Male Hispanics and make greater inroads amongst women. 

How to make sense of the Trump administration’s attacks on Diversity, Equity and Inclusion

Surely Vivek Ramaswamy deserves some credit? His book claimed that DEI was damaging the competitiveness of American industry. China didn't bother with 'Woke' virtue-signalling. America needed to refocus on STEM subjects or risk Chinese dominance in crucial new knowledge industries.

On his first day in office, President Trump signed an Executive Order targeting “Diversity, Equity, and Inclusion” programs in the federal government. A day later, the President signed an executive order entitled “Ending Illegal Discrimination and Restoring Merit Based Opportunity.” Together, these executive orders have been used to justify an across the board targeting of all federal programs, grants, and contracts, essentially a targeting of the entire federal bureaucracy. For example, very quickly, thousands of federal web pages have been taken down, with vast amounts of data from Alzheimer’s research to clinical trials being removed.

No doubt, some babies were thrown out with the bathwater. However, tech companies seem to have been backing away from DEI because it caused a nuisance and lowered productivity. 

The Trump administration has taken as its chief target DEI - Diversity Equity and Inclusion. The Executive Orders Trump signed on his first two days in office have been used to justify targeting federal agencies and other institutions, and to threaten the jobs of those suspected to be less than completely loyal to the new regime, on the grounds that they embody the ideology of DEI.

One may equally say that DEI was a stick to beat those considered to be politically incorrect in their views. What is sauce for the goose &c.  

In the vocabulary of America’s new regime, meritocracy is meant to replace diversity in hiring.

Hire the guy with better grades even if he is white and heterosexual.  

But what the administration means by “meritocracy” is distant from its original meaning.

No. That was the original meaning.  

The original meaning of “meritocracy” is a system based on competence and excellence.

On merit. The clue is in the word.  

Based on its actions, we can see that the sole metric of this regime’s judgements of merit is loyalty to the regime.

Jason can also see that everybody he doesn't like is actually Adolf Hitler.  

The attack on DEI is thus Orwellian double-speak.

Orwell was guilty of double-speak. So is Jason. Their own ideology is some sort of crazy leftist shite and they say everybody who disagrees with them is Adolf fucking Hitler.  

But, if anything, the true danger of the attack on DEI has been overlooked and underestimated.

There is no 'true danger'. DEI was a way of wasting money. America is waking up to the fact that, if it falls behind China, it won't have any fucking money to waste. 

In the Republican “Southern Strategy”, enacted most clearly and powerfully under

Goldwater and Nixon.  

Reagan,

who did use the term 'state's rights' but who then pivoted to talk of God. This 'God Strategy' worked. But what worked even better was 'oppo research'- Lee Atwater's trademark. Al Gore had mentioned Dukakis's giving convicts weekend passes. Atwater investigated this and found Willie Horton who robbed and raped wile on such a pass. That enabled Bush Snr. to win. I don't suppose Horton's being black was wholly irrelevant.  

federal programs that wealthy individuals supported eliminating in order to make way for tax cuts were described as “welfare.”

They were described as 'social welfare' by the people who created those schemes. Reagan's genius was to bring up 'Welfare Queens'.  

By describing such programs as “welfare”,

because that is what they were called 

Republicans intended to communicate that these programs were there to take money away from “hard working” white Americans and directed to benefit Black Americans,

it is true that African Americans were twice as likely to be on Welfare 

who, according to longstanding US anti-Black racist ideology, were associating with criminality,

in which case they were incarcerated. I suppose their families may have got welfare.  

laziness, and corruption (there are of course far more white Americans on programs aimed to help the poor

not relative to the size of their population 

than there are Black Americans on such programs).

Actually, African-American intellectuals- like the writer who coined the term 'woke'- saw with their own eyes that 'Welfare' was destroying African-American families. Thomas Sowell and Clarence Thomas are the foremost exponents of this view. Clinton got the message and thus came up with 'work-fare'.  

Scientists have repeatedly found, at least as recently as 2018, that this strategy was successful. Research has shown that almost half of white Americans regard Black Americans as lazier than whites, and almost as large a percentage regard Black Americans as less intelligent.

because us darkies have ginormous dongs. 

By describing certain government programs as “welfare”, politicians can easily decrease their popularity among this group of Americans.

Why not decrease the popularity of masturbation by describing it as 'welfare'? Did you know that if everybody stopped jerking off, productivity and hence Corporate profits would rise by 2.3 percent?  

The original version of the Republican Southern Strategy was necessarily limited –

it was about getting White votes in the South. It worked well enough once Carter was out of the picture.  

it was, after all, hard to describe all federal grant-making as welfare, or all federal bureaucracy as welfare.

So, the stuck to calling stuff which was already called 'welfare', welfare. How very devious! This shows Republicans are all 'boys from Brazil'- i.e. clones of Hitler.  

We are now witnessing a radical broadening of the Republican Southern Strategy, drawing on the same underlying racist attitudes towards Black Americans.

No. We are witnessing crazy shit. Hopefully, Trump will do a U turn before he tanks the market completely. As things are, he expects a recession by the end of the year.  

The idea behind the mechanism of extending the Republican Southern Strategy to all public institutions was due to Christopher Rufo, who realized that, in the expression “Critical Race Theory”, lay a potent weapon:“Strung together, the phrase ‘critical race theory’ connotes hostile, academic, divisive, race-obsessed, poisonous, elitist, anti-American.” Most perfect of all, Rufo continued, critical race theory is not “an externally applied pejorative.” Instead, “it’s the label the critical race theorists chose themselves.”

In other words, if darkies get to weaponize race, whites can do the same thing. There's no need for 'doublespeak'. What's important is to get the Hispanic vote. Just redefine them as White already. Same with East Asians. As for African-Americans, they are smart and keep their eye on the prize. What's so wrong with letting them rise in productivity and wealth?  Anyway, the second half of this century is going to be all about Africa's economic rise. Surely, African-Americans can play a great role in this? 

By connecting all of federal bureaucracy to “Critical Race Theory”, Rufo could create negative attitudes towards the entire federal system.

Which is why Left-Liberals should have kept their distance from it. It's one thing for me to bang on about how us Darkies invented everything. I am clearly stupid and ignorant and have a chip on my shoulder. If a well educated white person does it, we know they are lying. There's probably tax dollars that Whitey wants to get her greedy little mitts on.

There is, however, an obvious problem with radically extending the Southern Strategy by replacing “welfare” with “Critical Race Theory.”

This is the obvious problem with Jason's article. The 'Southern Strategy' is irrelevant. It was obvious that if the Dems backed Civil Rights, they would lose white votes in the South. CRT was a poison which parents wanted kept out of schools. That's it. That's the whole story. There is no secret program to take an axe to the Federal Government in the belief that this hurts African Americans. There is an open program to cut Federal spending so as to lower taxes and keep the Government's nose out of our business.  

The argument that the ideology of the federal government was Critical Race Theory was impossible to make.

Like Jason's argument that those who oppose it are rich bastards who want the poor to starve.  

Critical Race Theory is a small academic subdiscipline,

it is nonsense. 

and the expression “Critical Race Theory” occurs almost nowhere in federal documents. To argue that Critical Race Theory was somehow guiding the funding of (for example) Alzheimer’s research at Harvard and Yale would always sound like a conspiracy theory on the level of QAnon.

Rufo's tweet on the subject reads ' Columbia professor Jennifer Manly, who participated in the pro-Hamas demonstrations, has received $100 million in public funds for her "research" arguing that Alzheimer's is caused by "racism," not genetics or "lifestyle choices." He links to a video of her saying this. Incidentally, she is African American. 

Still, the fact is Black people think Alzheimer is something which can be cured by Scientists working in laboratories. At the very least, the guys researching this should be Medical Doctors. A psychologist focusing on 'mechanisms of inequalities in cognitive aging and Alzheimer’s Disease' can't add much value even if her research team has partnered with the Black and Latinx communities in New York City to design and carry out investigations of structural and social forces across the lifecourse, such as educational opportunities, discrimination, and socioeconomic inequality, and how these factors relate to cognition and brain health later in life.' We get that poor people of colour have horrible lives. Maybe they also suffer disproportionately from all sorts of cruel diseases. But the solution is better medicine not saying 'it sucks to be a darkie.' Even if this lady is black, there is no point spending money on her research. 

Even when Rufo argued that Critical Race Theory was guiding public schools, for example, his opponents could simply challenge him by asking for evidence that this academic theory had so much power.

He did produce such evidence. It is a different matter that kids don't give a shit about anything taught in public schools. They are too busy knifing each other or selling drugs to teechur.  

And it was evidence that, even in the much narrower range of education, was difficult to provide.

Jason never provides any evidence for his claims. The fact is CRT or some such shite motivated Manly's research which most of us darkies think was a complete waste of time. We know granny had a hard life. The question is whether Doctor Manly could cure her so she becomes well enough to cook our dinner. Sadly, Manly wasn't a Medical Doctor. She was a psychologist- i.e. useless.  

In short, “Critical Race Theory” could be deployed as an effective political weapon, for the reasons Rufo so clearly explains. But it was impossible to argue with any force that it was an ideology that governed the entire federal government.

People think the government spends a lot of money for political or cosmetic reasons. The funding for Dr. Manly is a case in point. You don't increase 'diversity' by hiring useless people. You merely waste public money. 

Diversity, Equity, and Inclusion programs are there to

piss money against a wall 

help ensure that workplaces are free from discrimination,

they become free of workers if the enterprise goes bankrupt. Still, we can always buy stuff cheaper from China- right? 

and accessible (for example to the disabled).

What about the dead? It is unfair to stop paying a dude just because he is pushing up daisies. Have you never heard of 'work from home'? The grave is the home of the dead person. Many dead people continue to be highly productive while working from their coffins.  

These programs are ubiquitous across federal agencies. Unlike Critical Race Theory, then, it is trivial to show that DEI is present across all federal agencies as well as institutions that the Trump administration deems hostile, such as universities.

So what? If CRT is part of the ideology of DEI then it shares the blame for the money being wasted in this way. 

The term “Welfare” was such a potent political weapon in the Republican Southern Strategy,

'Welfare Queen' was a weapon. Anyway, Clinton came up with 'work-fare' thirty years ago. It was popular with African Americans.  

as it was a useful shorthand for the deeply embedded racist attitude that Black Americans were lazier and less competent than whites. Rufo and others quickly realized that “DEI” could also be used to evoke the same racist attitudes, that Black Americans needed special help to compete with white Americans, positions that they could only obtain through cheating because of their supposed lesser competence and intelligence.

Did you know Vivek Ramaswamy is secretly white? That's how come he is so smart.  

We know that calling programs “welfare” made many Americans think less of them.

We know that working people didn't want their taxes to go to lazy drug-addicts.  

The anti-DEI campaign is the Republican Southern Strategy on steroids, as “DEI” marshals racist attitudes as effectively as “welfare”, but against a vastly broader target.

No. DOGE is about increasing efficiency by making a bonfire of regulations of various kinds. It is also about cutting government spending so more resources are available for household consumption and investment.  

The Republican Southern Strategy was a devastatingly effective weapon against America’s social safety net.

No. What was effective was running out of money. It turned out printing the stuff caused 'stagflation'. Who knew?  

By arguing that social programs were “welfare”, and benefitted supposedly undeserving Black Americans,

Black American tax payers were not keen on subsidizing 'Welfare Queens'.  

Republican politicians could argue that funding to these programs should be slashed, and the savings handed over to the wealthy in new tax cuts. The new version of the Southern Strategy is directed not just against the social safety net,

I suppose the retirement age will have to go up. This has nothing to do with any political strategy. It's just Accountancy is all.  

but against the entire federal government, and all the programs it supports, from health research to foreign aid to basic science.

If there are genuinely worthwhile scientific programs which have been axed, mention them by all means. Dr. Manly, sadly, does not qualify.  

Right now, America’s legacy of racism is being now directed as a weapon against America itself.

Jason is a weapon directed against the subject he teaches. The problem with telling stupid lies is that people think you are a stupid liar.