Time to strike a balance between justice and prosperity
As we celebrate India’s independence this week, it is easy to focus on economic growth and the competition between nations for advantage in the global market. These issues are certainly important. But we should remember, too, the crucial role of political liberty in creating a nation that remains a model of democratic achievement for the developing world. As an academic whose university has recently launched a major research center in Delhi, I love to work in India, in a way that I would not like to work in China, or even the somewhat more open Singapore. Since its founding, India has cherished not only liberty of access to the political process—and its voter turnout is well above that in my own country—but also a group of other liberties: freedom of speech, freedom of religious belief and worship, the freedom of association, and the free choice of occupation. (Most political theorists hold that the last of these liberties requires a market economy, so one could argue that that liberty is in a better state today than at the founding.)
These freedoms are not set in stone, and they are periodically threatened. Freedom of speech is threatened when books are banned and pulped. Freedom of religion is threatened when religious minorities face mob violence. Freedom of association is threatened when individuals are harassed for their group membership, whether left or right, and when sodomy laws make people risk prison for their intimate relationships. All these problems, and still others, make the liberties insecure in today’s India. But their defense is vital to a strong nation, for two reasons.
First, liberty is important to human welfare. Philosopher John Rawls imagined rational individuals designing a society without knowing in advance what group, majority or minority, each would belong to in it. He argued that the very first thing they would secure was this set of liberties. People, he argued, care deeply about the value of self-expression and life according to their convictions, and they wouldn’t want to risk that they would turn out to be in a weak group to whom a more powerful group would refuse these opportunities. So, he argued, the choosers in his ‘Original Position’ would opt for ‘the maximum liberty that is compatible with a like liberty for all.’ In other words, liberty must be ample, but it must also be equal. I’ll return to that crucial issue.
A second reason for the importance of liberty is given by John Stuart Mill in his great work On Liberty, prompted by the numerous violations of liberty characteristic of Britain in his time—where all women and many men could not vote, where university jobs required membership in the Anglican church, and where a host of restrictions on personal and sexual freedom made many a person’s life a prison. (Mill himself literally went to prison simply for distributing information about contraception to the poor in London.) Mill’s immediate focus in On Liberty was the freedom of speech, but he also was a lifelong defender of women’s freedoms of association and political participation; he introduced the first bill in the British Parliament for women’s suffrage. Mill’s argument for liberty is that a strong society needs unfettered expression. Dogma is the death of progress. It’s worst when false views rule the roost, but even true views need the stimulus of challenge and dissent.
So nations need ample liberty, both for their individual citizens’ welfare and for the health of a democratic public culture. But now: what about equal liberty? What does that mean, and what measures are needed to make liberty truly equal? The United States has really only begun to face this question, since it has largely assumed that all is well with liberty when the state doesn’t restrict anyone. Thus the US has confronted only fitfully and unevenly the threats to equal liberty supplied by the power of private actors, of the market, or even of democratic majorities. Take voting rights. It’s all very well to give all citizens rights on paper, but if procedures for voter registration disadvantage certain groups, for example by requiring driver’s licenses or other documentation that many poor people do not have, a common problem in my own nation (caused, alas, by democratic majorities), liberty is not equal. Or take religious liberties. Democratic majorities may be perfectly well-intentioned, and yet impose great obstacles to minority religious equality—for example, by making Sunday, the Christian holy day, a day of rest, thus penalising workers who for religious reasons need to refuse work on a Friday, or a Saturday. If some workers risk being fired from their jobs for observing their religion and others do not, liberty is not equal.
Again, take the freedom of speech. It’s all very well to say that people can express their political convictions freely. But if large groups in the population do not have access to decent education, what are the chances that they will ever be able to address their fellow citizens in a way that matters? If freedom of speech exists on paper but many people do not have the education that would actually enable them to speak effectively, liberty is not equal. The first African-American Justice of the US Supreme Court, the great Thurgood Marshall, argued that equal access to education is required by the freedom of speech. (He was outvoted, and his position remains a minority position, but it was correct.)
On the all-important question of equal liberty, India has long been ahead of the US in its constitutional thinking. Dr Ambedkar remains one of legal history’s most distinguished and insightful thinkers about this question. And of course his insight derived not just from his first-rate legal mind but also from his appalling early life, when, as he tells us, he was even unable to take water in school on a hot day because the teacher and the other children would not permit him to ‘contaminate’ the classroom water supply; when he was unable to travel and associate freely, because hotels and restaurants would not admit him. Ambedkar believed, correctly, that there can be no real liberty so long as ‘society itself is a tyrant… enslaving the soul itself.’
For Ambedkar, then, constitutional liberties would be mere words on paper, unless government at the same time were to take steps to make the liberties truly equal and available. Liberties are human opportunities, and people have them only when they can actually choose actions that express them. ‘It is no use for the Depressed Classes to have a declaration of equal rights,’ he wrote. ‘There can be no doubt that the Depressed Classes will have to face the whole force of orthodox society if they try to exercise the equal rights of citizenship… Rights are nothing unless remedies are provided whereby people can seek to obtain redress when rights are invaded.’ Or, as I would put it, liberties are not just formal guarantees, they are human capabilities, and they exist for real only when people can really avail themselves of them.
In drafting the new Constitution, therefore, Ambedkar took steps to make liberties (amply protected by articles 19, 21, and others) more than words on paper. First, of course, the Constitution declares untouchability illegal in all forms (Article 17). That is a major step, and of course it was hugely controversial at the time. Second, there is a strong article prohibiting discrimination (Article 15), and it states explicitly that nothing in the article prevents the State from taking measures for the advancement of ‘socially and educationally backward classes of citizens’—thus deliberately averting the sort of endless squabbling about the constitutionality of affirmative action that has long vexed the US judiciary. The same proviso is attached to Article 16, on equality of opportunity in matters of public employment. Other articles bearing on the equality of liberty include the prohibition of trafficking and forced labor and the prohibition of child labor in factories and mines.
Ambedkar favoured both strong non-discrimination laws and some forms of affirmative action. We should agree, although we should also observe that mere quotas do little good without early affirmative measures to make sure that the people who eventually take the reserved spaces in education are equipped to succeed when they get there. Above all, then, it is to primary education that we must turn for help, if liberty, whether in India or the US, is to be truly equal. We may go even further than Justice Marshall: inherent in all the liberties is access to an early education that truly develops human talents and capacities—as much early education in India lamentably fails to do. People are not truly free to participate in politics, to practice their religion, to speak in public, or to associate, unless they have the chance to choose a wide range of functions for which education is an indispensable prerequisite. If liberties are not just an empty space, but actual human capabilities, then a nation must produce human capabilities, not just refrain from interfering.
Economist James Heckman, winner of the Nobel Prize in 2000, has shown that early intervention in primary education is a win-win for society: if the programs are well designed, including nutrition and work with families, the payoff we observe years later is great. Crime is reduced, the recipients are more productive actors in the economy, and their personal welfare is also greatly improved. So it is not necessary to choose between justice for deprived groups and economic efficiency. A successful economy needs and profits from an educated and healthy work force. Such workers are also enjoying the promises of truly equal political and associational liberty offered in India’s very distinguished Constitution.
About The Author
Martha C Nussbaum is the Ernst Freund Distinguished Service Professor of Law and Ethics at the University of Chicago
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