Interdisciplinary Perspectives in Political Theory 9788132106302, 9788132107682

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Interdisciplinary Perspectives in Political Theory

ii INTERDISCIPLINARY PERSPECTIVES IN POLITICAL THEORY

Interdisciplinary Perspectives in Political Theory

Edited by

Mangesh Kulkarni

Copyright © Mangesh Kulkarni, 2011 All rights reserved. No part of this book may be reproduced or utilised in any form or by any means, electronic or mechanical, including photocopying, recording or by any information storage or retrieval system, without permission in writing from the publisher. First published in 2011 by SAGE Publications India Pvt Ltd B1/I-1 Mohan Cooperative Industrial Area Mathura Road, New Delhi 110 044, India www.sagepub.in SAGE Publications Inc 2455 Teller Road Thousand Oaks, California 91320, USA SAGE Publications Ltd 1 Oliver’s Yard, 55 City Road London EC1Y 1SP, United Kingdom SAGE Publications Asia-Pacific Pte Ltd 33 Pekin Street #02-01 Far East Square Singapore 048763 Published by Vivek Mehra for SAGE Publications India Pvt Ltd, typeset in 10/12 pt Times New Roman by Star Compugraphics Private Limited, Delhi and printed at Chaman Enterprises, New Delhi. Library of Congress Cataloging-in-Publication Data Interdisciplinary perspectives in political theory/edited by Mangesh Kulkarni. p. cm. Includes bibliographical references and index. 1. Political science—Philosophy. I. Kulkarni, Mangesh, 1963– JA71.I568

320.01—dc22

2011

2011007106

ISBN: 978-81-321-0630-2 (HB) The SAGE Team: Elina Majumdar, Arpita Dasgupta, Mathew P.J. and Deepti Saxena

To The memory of Professor Rajendra Vora, Consummate practitioner of civic friendship & Intellectual catalyst par excellence.

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Contents

List of Abbreviations Acknowledgements Introduction 1

Reflections on the Relation between Theory and Practice for Our Times Jayant Lele

ix xi xiii

1

2

Politics of Globalisation: Theoretical Debates Rohini Hensman

37

3

Theory of Public Choice: Implications for Democracy Prakash Sarangi

57

4

Justice, Citizenship and the Politics of Feminism Lajwanti Chatani

70

5

Group Identities and Rights: A Case for Theory beyond the Nation-state Arpita Anant

87

6

Civil Society: Alternatives and Differences Sanjay Palshikar

117

7

Albert Camus and the Politics of Friendship Mangesh Kulkarni

135

8

Dismantling the Political Syed A. Sayeed

151

9

Discourse Ethics: Rediscovering the Link between Rationality and Morality Deepti Gangavane

171

viii INTERDISCIPLINARY PERSPECTIVES IN POLITICAL THEORY 10 Debates on Protecting Traditional Knowledge in the Age of Globalisation: A Call for Re-imagining Political Theory Kannamma Raman 11 The Camp as Nomos of the Modern: Interrogating the Armed Forces (Special Powers) Act, 1958 Shardool Thakur

189

216

12 The Crime of Torture Justin Clemens and Russell Grigg

236

Index About the Editor and Contributors

260 269

List of Abbreviations

AIMPLB AFSPA CCIM CEDAW CRPF CTBT EU FTAA GATT GDP JIH ICC ICCPR ICESCR ICT ILO IMF IPRs IR MNC NCM PCF POTA POW R&D RAFI RMC SAP TADA

All India Muslim Personal Law Board Armed Forces (Special Powers) Act Consultative Committee of Indian Muslims Convention on the Elimination of all forms of Discrimination Against Women Central Reserve Police Force Comprehensive Nuclear Test-Ban Treaty European Union Free Trade Area of the Americas General Agreement on Tariffs and Trade Gross Domestic Product Jamaat-e-Islami Hind International Criminal Court International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights Information and Communication Technologies International Labour Organisation International Monetary Fund Intellectual Property Rights International Relations Multinational Corporation National Minorities Commission Parti Communiste Francais (Communist Party of France) Prevention of Terrorism Act Prisoner of War Research and Development Rural Advancement Foundation International Regional Medical College Hospital Structural Adjustment Programmes Terrorist and Disruptive Activities (Prevention) Act

x INTERDISCIPLINARY PERSPECTIVES IN POLITICAL THEORY TBGRI TK TRIPS UDHR UN UNESCO UNITE UNICEF UNHCR WHO WILPF WTO

Tropical Botanic Garden and Research Institute Traditional Knowledge Agreement on Trade Related Aspects of Intellectual Property Rights Universal Declaration of Human Rights United Nations United Nations Educational, Scientific and Cultural Organization Union of Needletrades, Industrial and Textile Employees United Nations Children’s Fund United Nations High Commissioner for Refugees World Health Organization Women’s International League for Peace and Freedom World Trade Organization

Acknowledgements

This volume of essays is offered as a celebration of and a contribution to the rich and thriving intellectual enterprise of Political Theory. It seeks to capture the truly global, interdisciplinary, multi-paradigmatic and praxis-oriented character of the enterprise. Accordingly, it features a team of scholars who are at home with the diverse academic milieux in Asia, Australia, Europe and North America; takes into account insights thrown up by various disciplinary formations spanning the social sciences as well as the humanities; deploys several theoretical frameworks ranging from Public Choice Theory to Discourse Ethics; and critically intervenes in contemporary political debates on a variety of issues, such as the state of civil society and the fate of traditional knowledge. The book owes its existence to the unstinting support of the 12 contributors: Jayant Lele, Rohini Hensman, Prakash Sarangi, Lajwanti Chatani, Arpita Anant, Sanjay Palshikar, Syed A. Sayeed, Deepti Gangavane, Kannamma Raman, Shardool Thakur, Justin Clemens and Russell Grigg. I am glad to offer my most sincere thanks to each of them. It is necessary to point out that two essays in this volume are substantially revised versions of previously published articles. Syed A. Sayeed’s ‘Dismantling the Political’ had earlier appeared in Studies in Humanities and Social Sciences, Vol. IV, No. 2 (1997); while Sanjay Palshikar’s ‘Civil Society: Alternatives and Differences’ was originally published in The Indian Journal of Political Science, Vol. 63, Nos 2 and 3 (June–September 2002). The idea of bringing out a book of this kind first occurred to me when I organised a national seminar on ‘Contemporary Political Theory’ at the Department of Politics and Public Administration, University of Pune (India) on 9–10 March 2006. Rajendra Vora (former Professor and Head of the Department) had encouraged me to plan the seminar. To my lasting sorrow, he suddenly passed away in 2008. I dedicate the book to his memory.

xii INTERDISCIPLINARY PERSPECTIVES IN POLITICAL THEORY I owe a special word of thanks to Ram Bapat—patron-saint of political theorists in Pune—for his constant goodwill and guidance. This book would not have seen the light of day but for the effort put in by Elina Majumdar, Commissioning Editor of SAGE Publications (India). I am greatly indebted to her for piloting it through various stages with admirable patience and tact. Finally, I thank all the members of my extended family: Digambar and Kunda Kulkarni (parents); Govind and Jayashree Rege (parents-in-law); Shraddha (wife), Ritvik (son) and Rijuta (daughter) from the bottom of my heart for the innumerable ways in which they succored (and suffered!) me through the long gestation period of the book. Mangesh Kulkarni

Introduction Mangesh Kulkarni

Political theory is a unique intellectual enterprise which combines a hoary lineage with a vibrant contemporary presence. It brings a formidable tradition of theoretical inquiry to bear upon the most pressing political concerns of our times.1 As a complex and evolving body of critical thought, it draws upon a wide spectrum of humanities and social sciences in an eclectic spirit. The essays included in the present volume seek to capture and explore both the historically grounded contemporaneity and interdisciplinarity of political theory by focusing on key thinkers (Rawls, Habermas, Derrida), concepts (justice, rights, democracy), debates (globalisation, intellectual property, torture) and perspectives (Marxism, feminism, post-structuralism). The contributors are outstanding scholars spanning three generations and four continents, as also over half a dozen disciplines including political science, international studies, sociology, psychoanalysis, philosophy and literary studies.

Fundamentalism, Globalisation and Democracy The well-known political theorist Benjamin Barber has summed up the predicament of the contemporary world in terms of a tussle between Jihad and McWorld.2 The former is propelled by parochial hatreds seeking to recreate sub-national borders, while the latter is driven by globalising markets that make national borders porous. Ironically, the cross-pressures they generate pose major challenges to freedom and democracy at a time when these ideals have gained unprecedented legitimacy. The first two essays in the volume draw on current debates in political theory to explore different dimensions of the contradictory forces at work in this unfolding drama, while the third grapples with a set of antinomies that are arguably intrinsic to democratic praxis.

xiv INTERDISCIPLINARY PERSPECTIVES IN POLITICAL THEORY In a wide-ranging essay that sets the tone of the book, Jayant Lele offers reflections on the relation between theory and practice by focusing on the two intertwined fundamentalist phenomena that plague the post-Cold War era: the global spread of neo-liberal ideology on the one hand, and the upsurge of belligerent ethnic, cultural and religious identities on the other. After tracing the genealogy of this crisis, he explores the intellectual resources available to meet the challenges it generates by concentrating on three prominent exponents of the major trends in political theory: John Rawls (1921–2002), Jürgen Habermas (b. 1929) and Jacques Derrida (1930–2004). Rawls’ theoretical trajectory represents a remarkable attempt to develop a realistic liberal utopia. However, in the ultimate analysis, the seductive ambiguities of his thought have served to legitimise the political practice of the American state in the domestic and global arenas. Habermas’ long and sophisticated journey from the early critical theoretic Marxism to procedural liberalism is full of rich insights. But, his decisive renunciation of the materialist heritage has led him to a formalism that is complicit with the status quo. Derrida’s immensely influential project of deconstruction acquired an explicit political thrust in his later writings. Yet, his responses to the events of 9/11 and the subsequent McCrusades in Afghanistan and Iraq suggest that he finally joined the ranks of Rawls and Habermas. The impasse of these three representative thinkers is symptomatic of a deeply embedded distortion of the idea of modernity in contemporary Western political theory. It can be broken only through a critique of economy and religion in the spirit of Marx, and an excavation of the emancipatory potential of counter-hegemonic traditions available in different parts of the world. Rohini Hensman tracks the theoretical debates centred on the politics of globalisation. She criticises the common tendency to conflate it with capitalism, imperialism and neo-liberalism tout court. It is far more productive to see globalisation as a process through which new organs of global regulation such as the World Trade Organization (WTO) and the International Criminal Court (ICC) could emerge and play an effective role. The seeming contradiction between ‘the global’ and ‘the national’ involved in the evolving forms of governance should be overcome. This can be done by prioritising democracy over sovereignty in pursuit of the rights of subaltern strata, including women and workers. Globalisation also opens up other emancipatory possibilities. It projects trade across porous borders rather than war and annexation of territory as an instrument of economic gain. Thus, it creates conditions that are conducive to the struggle against militarism. It also provides the

Introduction

xv

intellectual and political space required for reinventing citizenship in a cosmopolitan spirit. Appropriate international alliances and initiatives need to be forged to realise such possibilities. An effective deployment of advanced information and communication technologies is one of the preconditions of their success. A large number of scholars (especially in the USA) draw on public choice theory to seek explanations for the perennial puzzles pertaining to the translation of individual preferences into collective decisions. They typically use forms of reasoning and tools of analysis furnished by mathematics and economics. Prakash Sarangi offers an overview of this school of thought by focusing on its key contributions to the understanding of democracy. The most startling of these is Arrow’s theorem, which states that no alternative can be selected decisively through a voting procedure subject to minimal conditions of fairness and logicality if there are more than two voters and more than two alternatives. The theorem raises serious questions as to the very possibility of defining and pursuing public interest by democratic means. Other issues discussed by public choice theorists include the precise motivation underlying the citizen’s decision to vote, while in full knowledge of the fact that his/her vote has a negligible prospect of affecting the outcome; the predicament of political parties seeking to maximise their chances of winning elections by positioning themselves at the median point in the spectrum of public opinion; the conundrums of coalition politics; the probability that the government would function more as a malevolent revenue maximiser than as a benevolent provider of public goods; and the problem of ‘free-riding’ that commonly afflicts collective action. While the rigour and earnestness of this academic enterprise cannot be gainsaid, critics point out the flimsiness of its foundational assumption that human beings are essentially egoistic, rational, utility-maximisers. This explains the discrepancy between some of its austere formulations and the rich complexity of lived political experience.

Just Citizenship, Group Rights and Civil Society The broad-brush theoretical inquiries summarised above are followed by a set of three essays that discuss the interconnected themes of citizenship and justice, group identities and rights, and the dialectics of civil society.

xvi INTERDISCIPLINARY PERSPECTIVES IN POLITICAL THEORY They exemplify the proclivity of political theory to illuminate and productively complicate the public discourse surrounding several critical concerns of our times. Such an intellectual endeavour involves a blend of exegesis, conceptual analysis, ideology-critique and constructive theorising based on scrupulous attention to empirical realities.3 The first essay is pitched at a high level of generality, the second seeks to generalise on the basis of a richly textured case study, whereas the third involves a deft dialogue between the particular and the general. Lajwanti Chatani examines the fractures in the ongoing debates on citizenship and justice through the lens of feminism. While the liberal notion of citizenship is caught up in the public/private dichotomy, its civic republican counterpart tends to reify the common good. Feminist scholars like Carol Gilligan and Carole Pateman have sought to overcome these limitations by advancing an alternative understanding of the citizenself that foregrounds women’s gender-specific experience of care and motherhood. However, Chantal Mouffe, arguing from the vantage point of post-structuralist feminism, objects to the essentialism implicit in such a move. She advances an alternative view of citizenship as an articulating principle (re)structuring the subject-positions of the social agent, in keeping with the democratic assertion of liberty and equality for all. The contemporary debate on justice is also polarised between two conceptions that canvass the competing claims of economic redistribution or those pertaining to recognition of socio-cultural differences. The champions of the former include social liberals like John Rawls; while communitarians such as Charles Taylor tend to emphasise the latter. The noted critical theorist and feminist Nancy Fraser indicates a way beyond this deadlock by pointing out that social categories like gender and race are two-dimensional; hence the quest for justice entails claims for redistribution as well as recognition. Accordingly, she calls for theoretical and practical efforts to integrate the politics of class and status to ensure inclusive and just citizenship. The demand for rights emanating from minority groups gives rise to theoretical issues akin to the ones discussed above. Arpita Anant grapples with these thorny issues by focusing on the case of the Muslims in modern India. Alluding to a significant body of work in international studies that emphasises the continuity between the domestic and external aspects of a country’s politics, she underscores the need to integrate the national and global facets of identity politics. A close examination of the ideological currents that have shaped the self-image and mobilisation of Indian Muslims over the last century and a half reveals the influence of several

Introduction

xvii

transnational factors, including the vicissitudes of pan-Islamism, social and legal reforms introduced among Muslim communities in other parts of the world, and the role of diasporic organisations. A survey of the debates in social and political theory that has framed the ‘Muslim question’ in India points to an interesting anomaly. These debates have been conducted in a sophisticated conceptual idiom, encompassing concerns such as tradition and modernity, secularism and democracy, multiculturalism and tolerance. They have unfolded against the variegated tableaux of national politics in general and of communal politics in particular. But curiously, the interlocutors evince little interest in the international dimension of the problem that is central to the contention. The omission needs to be urgently remedied through a research agenda that is attentive to this dimension. Sanjay Palshikar provides an insightful account of the different ways in which the notion of civil society has been used by theorists in India against the background of its trajectory in the West, where it originated. He scrutinises the exegetical accuracy, internal coherence and practical purchase of these usages. Rajni Kothari optimistically projects civil society as a network of voluntary, principled and decentralised activities that would usher in humane governance. But, he operates with an unduly dichotomous conception of the relation between civil society and the State, and tends to idealise the former. Gurpreet Mahajan does not share Kothari’s optimism and sees the actually existing civil society in India as a domain that is fraught with ascriptive identities and traditional hierarchies. She favours the liberal idea of the constitutional State as a guarantor of individual rights. However, she does not adequately theorise the links between political participation, civic virtue, rights and liberties. Besides, many of her arguments are based on a truncated reading of Locke and Hegel. Partha Chatterjee is even less enamoured of civil society, which he treats as a synonym for ‘bourgeois society’. He pins his faith on the democratic potential of ‘political society’ seen as a sphere of subaltern self-assertion, typically involving tactics based on a strategic use of illegality. But, the contours of this concept remain hazy as it is taken to include disparate forms of popular mobilisation. Moreover, illegality is not a sufficient criterion to demarcate the operations of governmentality, which Chatterjee considers to be central to the dynamics of political society. The most important shortcoming of the binary he posits is that it fails to account for collective interventions that seek justice for the marginalised people without resorting to illegality. Such interventions

xviii INTERDISCIPLINARY PERSPECTIVES IN POLITICAL THEORY pose a major challenge to the bourgeois order as they train the poor in the rigours of citizenship, enabling sections of the ‘population’—serving merely as objects of governmental manipulation—to become part of ‘the people’ bearing rights. The movement of democratisation can be mapped only by capturing this dialectic.

Solidarity, Emancipation and Communicative Action A defining feature of the classical tradition of political theory was its deep and abiding preoccupation with philosophical inquiries ranging from ontology to axiology. The post-metaphysical cast of contemporary thought has led to a problematisation of the nexus.4 The essays discussed under this category occupy an intellectual space marked by the effects of this transition. They address a variety of concerns including the possibility of sustaining solidarity in an era that offers no firm ontological footing for its affirmation, the imperative of dismantling the heteronomy lodged in the very heart of the political, and the quest for a domination-free discourse ethics anchored in universality. The well-known Algerian-French writer and political thinker Albert Camus (1913–60) developed a distinctive philosophy of rebellion. Mangesh Kulkarni suggests that it can serve as a springboard for reflecting on a politically informed understanding of friendship suited to the spirit of our times. He charts the course of Camusian rebellion from its early avatar as an existential response to absurdity ensuing in hedonism, to its subsequent transformation into a mature advocacy of compassionate camaraderie and righteous resistance to injustice. Critics have argued that there is an irresolvable contradiction in Camus’ staunch commitment to the sanctity of human life as a cardinal principle informing authentic rebellion, and his insistence that the rebel who has had to murder an oppressor should atone for the violation of this principle by sacrificing his/her own life. Arguably, the apparent aporia springs from the deep structure of Camus’ political philosophy which is embedded in a ‘weak ontology’. The prevalence of weak ontologies is a characteristic feature of late modern political thought. Unlike their ‘strong’ predecessors, they offer epistemologically contestable and historically grounded interpretations of existence, which enable us to think, feel and inhabit the world differently. A weak ontology signals its own fallibility, contingency and partiality

Introduction

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through two or more conceptual ‘folds’—each drawing attention to the insufficiency of the other—linked only by virtue of a ‘crease’. The crease that holds the conceptual folds characterising Camus’ philosophy of rebellion in a precarious unity is a certain notion of love or friendship. An exegetical elaboration of its filiations and nuances indicates that it is hospitable to a wide range of contemporary concerns including civic solidarity, intercultural amity and ecological sanity. Numerous philosophers from Aristotle to Arendt have sought to articulate a vision of emancipation in and through the domain of politics. Others, especially those of an anarchist bent, have emphasised the imperative of deconstructing politics as a prerequisite for emancipation. Syed A. Sayeed joins the ranks of the latter in his vigorous polemic against ‘the political’, which he views as a constitutive element of social reality involving power transactions that necessarily warp the structure of practices and institutions. He adopts the Weberian definition of power as the capacity of one unit in a system to realize its goals against the opposition of other units. While power assumes many forms, its distributive structure is essentially pyramidal. Attempts to invert or flatten the power pyramid through revolutions or other means are doomed to failure, as it invariably gets reconstituted sooner or later. The mechanism of the political defuses resistance to power transactions by creating a screen of social ideals that disguises them. Its logic is one of duplicity, ambiguity, manipulation and subversion. Hence a hermeneutics of suspicion should be deployed to expose the modalities by which the political turns language, morality, authority, civilisation, reason and religion into instruments of domination. Moreover, it is necessary to develop a counter-political strategy of freedom that can deconstruct the everforming pyramids of power. Such a project may seem utopian, but it is not without precedent. Those seeking to embark upon it would do well to seek inspiration and guidance from the life and thought of M.K. Gandhi. Jürgen Habermas is perhaps the most eminent of living political philosophers. Deepti Gangavane provides a critical account of his thought by focusing on ‘discourse ethics’—a theme that runs like a red thread through the German thinker’s monumental corpus straddling a wide spectrum of disciplines. She points out that the central objective of Habermas’ intellectual endeavour is to further the Enlightenment project of creating a free and just society by retrieving the emancipatory potential of human reason. The challenge is to develop a conception of reason that would enable a critical normative discourse anchored in universality, while avoiding the temptation of being transcendental and hence totalitarian.

xx INTERDISCIPLINARY PERSPECTIVES IN POLITICAL THEORY Habermas meets it by grounding such a conception on the human ability to communicate. Every act of communication entails an implicit knowledge of the validity claims underlying all utterances—intelligibility, truth, rightness and truthfulness. The ensuing notion of communicative rationality springs from and sustains the shared lifeworld in which individuals are formed and act as linguistically competent subjects. Discourse is a type of communicative action that takes up validity claims as themes for reflective discussion, in a bid to secure the rational assent of all the participants in a dialogue that is free from internal constraints and external domination. The ethical norms governing such discourse are the autonomy of the individual and the solidarity of the community. They help generate ‘an ideal speech situation’, which is offered as a regulative principle for ushering in a truly emancipatory social order. The formal procedure provided by discourse ethics cannot be applied directly to substantive issues of the good life, but it can be used to adjudicate questions of justice in a universalistic fashion. This impressive theoretical edifice has been widely criticised on account of its allegedly ethnocentric attachment to the Western project of modernity, as an anachronistic utopian metanarrative, and for its supposedly empty formalism. Yet, it remains a sturdy bulwark against the perils of conventionalism, decisionism and irrationalism.5

Traditional Knowledge, Biopolitics and Torture The critical unmasking of unjust and oppressive structures and practices has constituted one of the historic tasks of modern social and political theory.6 The liberal critique of absolutism, the socialist interrogation of laissez-faire and the feminist deconstruction of patriarchy may be cited as paradigmatic examples. The contemporary manifestations of hegemony often turn out to be far more insidious than their prototypes. Innovative theoretical techniques have to be deployed to unravel their complex logic and modalities. It is with this awareness that the last three essays in the volume turn the spotlight on certain dominant regimes of property and power which impinge poignantly on the people subjected to their rigours. The thematic foci comprise the fate of traditional knowledge in the face of globalisation, the logic of biopolitics underlying the Armed Forces (Special Powers) Act (AFSPA) in India, and the political psychology driving the worldwide practice of torture.

Introduction

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Kannamma Raman discusses various theoretical issues arising out of the need to protect traditional knowledge (TK) in the era of globalisation. Since the colonial epoch, the hegemonic forces in the North have engaged themselves in a relentless drive to expropriate such knowledge, developed over centuries and collectively owned by indigenous or local communities in the global South. Recent decades have witnessed an intensification of this process due to the increasing geographical and sectoral penetration of the market, and the emergence of a knowledge-driven economy. The United Nations Organizations (UNO) has estimated that developing countries lose at least USD 5 billion in unpaid royalties to multinational corporations that appropriate TK. Not just corporations but states, universities and scientists are often guilty of such exploitation. It is necessary to protect TK as the world’s poorest people depend upon it for their physical and cultural survival; besides, it is also needed to sustain biodiversity. One way of attaining this objective is to confer the relevant Intellectual Property Rights (IPRs) on the holders of TK. However, such an approach may turn out to be counterproductive as the dominant understanding of IPRs is anchored in an epistemology that separates knowledge from the social context of its use, and is deeply implicated in the predatory ideology (possessive individualism) and dynamics (commodification) of capitalism. Not surprisingly, the current IPR regime favours the interests of the hegemonic forces. Safeguarding TK in the existing human rights framework is also problematic as the latter is State-centric and provides little space to group rights. It might be more feasible to secure the integrity of TK through a communitarian and dialogical discourse of rights that would prevent its steamrollering by the State’s quest for power and capital’s pursuit of profit. Modernity is a curiously Janus-faced phenomenon. While promising liberation from the shackles of age-old superstition and tyranny, it generates new forms of power/knowledge that have ominous implications for human freedom. The concentration camps in Nazi Germany could be seen as a particularly vicious manifestation of the latter. The Italian political theorist Giorgio Agamben (b. 1942) has argued that far from being an aberration, these camps represent a paradigmatic matrix of modern ‘biopolitics’, which was defined by Michel Foucault (1926–84) as the process by which life itself comes to be what is at stake in politics. In this sense, ‘the camp’ is the most sinister version of an organisational template that has resulted from the quest of modern regimes for an arrangement best suited to ensure the care, control and use of bare life. As such it involves juridical procedures and power dynamics, through

xxii INTERDISCIPLINARY PERSPECTIVES IN POLITICAL THEORY which human beings are so completely deprived of their rights that no act committed against them could appear as a crime. Shardool Thakur provides a thumbnail sketch of this hypothesis and uses it as a lens to examine the implementation of the AFSPA. The apparatus of the camp was first deployed by the Western imperial powers to discipline their colonial subjects, further developed by both democratic and totalitarian governments in interwar Germany to contain and eliminate ‘undesirable elements’ like communists and Jews, and is currently evident in the carceral practices prevalent in the US detention centre at Guantanamo Bay. The AFSPA—enacted in 1958 to curb fissiparous movements in Assam and Manipur, and extended in 1972 to the whole of the North East—has turned the entire region into a camp. It has conferred draconian powers on the armed forces and caused untold misery to the people of the region. The Act continues to be in force despite the bitter protests of its innocent victims, condemnation by human rights agencies like Amnesty, and the report of a government-appointed committee, which recommended its repeal. All these instances seem to validate Agamben’s melancholy hypothesis that the camp is the very nomos of the modern. Though torture is an international crime, it continues to be used as an instrument of power in different parts of the world. In fact, the so-called war against terror seems to have given a renewed legitimacy to the use of torture against suspects. Justin Clemens and Russell Grigg argue that the tendency to normalise torture must be resisted on political and psychological grounds. Evidence produced by torture is both unreliable and unjust. Torture has manifold elements which invariably get confused in its execution, and are at odds with its justification. Besides, there are vital links between democracy and the prohibition of torture. Historically, democracy entailed restrictions on the sovereign’s right to torture his subjects. It must be clearly understood that an absolute ban on torture—and related practices like ‘disappearing’ people or holding them in arbitrary detention—as a State prerogative remains a prerequisite of the Rule of Law, free speech (including the freedom not to speak) and by implication, of democracy itself. Of late, many ‘experts’ have come to recommend torture as ‘an excellent information-gathering device’ that states should use for ensuring security. Not only is this claim empirically false, it is also dangerous. There is in fact a ‘slippery slope’ aspect to the practice of torture, inducing a slide towards the legitimisation of brutality as a routine expedient, abuse of power and terror. If the belief in the efficacy of torture persists, despite

Introduction

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ample evidence to the contrary, this is because it is rooted in a political fantasy. Psychoanalysis tells us that fantasy functions as a frame through which the ‘real world’ is perceived; it is based on a lack of reality, and canalises traumatic experience. Thus, attempts to counter fantasy through rational argument and mobilisation of hard facts are futile, and often end up fuelling it. Considering the deep-rooted human desire to dominate and torment others, fantasy is apt to generate the pathology of torture. While this pathology can be counteracted through a therapeutic process of listening and talking to its perpetrators and victims, the larger battle against torture can be fought only through legal, ethical and political activism geared to the safeguarding of democracy.

Conclusion As the foregoing discussion of certain salient debates in contemporary political theory indicates, the destiny of humankind will depend increasingly upon our collective intellectual and practical capacity to shape the global configuration of capital, power and knowledge that is emerging in the matrix of late modernity. What is needed is a twofold manoeuvre involving a vigilant deconstruction of the heteronomous tendencies inherent in this configuration, together with a dialogical endeavour to recover and reinforce the possibilities of emancipation. Political theorists can make a major contribution to this process by drawing on their own rich heritage and by engaging in a creative collaboration with their likeminded colleagues in the other human sciences. This volume may be seen as a modest exercise in the generation of such synergy.

Notes 1. The following books give a broad overview of recent debates in political theory: John Dryzek, Bonnie Honnig and Anne Phillips, (eds), The Oxford Handbook of Political Theory (Oxford: Oxford University Press, 2008); Iain MacKenzie, (ed.), Political Concepts: A Reader and Guide (Edinburgh: University Press, 2005); and Terence Ball and Richard Bellamy, (eds), Twentieth Century Political Thought (Cambridge: Cambridge University Press, 2003). For an India-specific compendium, see V.R. Mehta and Thomas Pantham, (eds), Political Ideas in Modern India: Thematic Explorations (New Delhi: SAGE, 2006).

xxiv INTERDISCIPLINARY PERSPECTIVES IN POLITICAL THEORY 2. The formulation originally appeared in Benjamin Barber’s article, ‘Jihad vs. McWorld’, The Atlantic Monthly, March 1992. It was subsequently developed by the author in his book Jihad vs. McWorld (New York: Times Books, 1995). 3. For a brief but illuminating account of the nature and functions of political theory, see David Miller, Janet Coleman, William Connolly and Alan Ryan, (eds), The Blackwell Encyclopaedia of Political Thought (Oxford: Basil Blackwell, 1991), pp. 383–90. 4. See Michael Brint, William Weaver and Meredith Garmon, ‘What Difference Does Anti-Foundationalism Make to Political Theory?’, New Literary History, Vol. 26, No. 2 (1995), pp. 225–37. 5. Conventionalism reduces morality to social conventions. Decisionism traces the origin of moral choices to the inclinations of the agents and therefore considers them to be non-cognitive. Irrationalism rejects the axiological primacy accorded to reason and propounds an ethic rooted in instinct, feeling and will. 6. See Brian Fay, Critical Social Science: Liberation and Its Limits (Ithaca: Cornell University, 1987).

1 Reflections on the Relation between Theory and Practice for Our Times Jayant Lele

The telos of tolerance is truth Herbert Marcuse1

Since the turn of the century, a sense of fear and uncertainty about life and livelihood has been spreading globally, together with the polarisation of populations along the affluence–deprivation axis. The end of the Cold War has brought not the anticipated golden age of perpetual peace and global prosperity, but a period of random, turbulent and chaotic tensions, confrontations and wars between nations and peoples and an increase in organised non-State armed violence. The latter licenses the State to take unprecedented liberties with the Rule of Law. Together, these trends destabilise the lives of ordinary citizens everywhere. There is an all-encompassing global sense that this is an era in which unfathomable risks, pervasive uncertainty and endemic unpredictability haunt all our actions, individual or collective, private or public. Does political theory need to respond? What are the ways in which political practice and political theory have been affecting each other? The governing ideas of Western political theory emerged during European Enlightenment. Central among them were those of justice, equality and liberty. The development of the natural sciences and a new understanding of reason as human reason, as opposed to divine reason, were the driving force behind this change.2 The Enlightenment was the last major marker for these ideas in the long process of transition from

2 JAYANT LELE feudalism to capitalism. With the rapid growth of capitalism in the country where it first emerged and the triumph of its bourgeoisie as the ruling class, two relatively distinct traditions of interpretation of Enlightenment ideas emerged. The liberal tradition developed new, shifting and apologetic interpretations of liberty, equality and justice and thus affirmed the new sociopolitical and economic order.3 The liberal tradition treats the existing order as a system that can and will gradually reform itself from within through piecemeal adjustments to the institutional nexus of democracy and the Rule of Law. Reforms are believed to result in response to formal and informal pressures from citizens active in the public sphere. Theory’s relationship to practice is mediated through the institutions of formal democracy. Its task is to reflect on the way they work and to reform them so as to enhance their capability. It is also expected to provide situation-specific reinterpretations of the basic principles (of liberty and equality) such as freedom of speech, electoral participation and open access to the public sphere for all citizens. Liberalism, in affirming the virtues of capitalist democracy, recognises that the two—liberty and equality—must remain in a contradictory tension,4 since it anchors liberty in private property which is treated as part of the natural order. Private property as the prerequisite of individual liberty features in all versions of liberalism. The most emphatic claims are utilitarian and link organically to the defence of capitalism in consequentialist terms—it fosters growth, guarantees liberty and upholds justice. It accepts those moral and legal rules which promote happiness. It projects a benign and virtuous capitalist ‘free market’ order of production and exchange as the guarantor of the greatest amount of aggregate societal welfare. Objections to the utilitarian doctrine have come, within the liberal tradition, from those who argue that utilitarian political and economic practice is prone to sacrificing the well-being of some individuals to achieve aggregate welfare, and is thus a source of injustice. They justify private property rights as natural through a number of assumptions about nature, society and human nature, the most basic of which is the notion of an autonomous rational (and moral) individual. The critical tradition, on the other hand, recognises the potential inherent in capitalism to eliminate want and oppression of humankind, but also its inherent incapacity to do so from within.5 It points to the contradiction between labour and capital and between wages and profits as the necessary driving force of capitalist development. The only way to simultaneously and fully actualise the potential for liberty and equality is, therefore, its transcendence through transformative action.

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The concept of crisis underscores critical theory’s relation to practice. Its tasks are the following—to analyse the situation as it exists, but in terms of what it can be and is not; to specify, when possible, those whose everyday experience6 may motivate them to identify the contradiction between what is and what can be; to analyse the crisis conditions under which it mostly occurs; and to engage them in dialogue and thus act as a catalyst in the acceleration of reflection and action towards emancipation. Marx’s critique of political economy explained crises in capitalist societies as the inevitable outcomes of the fundamental contradiction between social production and private appropriation, between labour and capital; in short, it showed how they manifest themselves in all the dimensions of social life. The State and society both contribute to the resolution of crises. Each such resolution produces consequences from which neither can escape. The sociopolitical and subjective dimensions of such crises were further developed by Gramsci. What is often called a ‘crisis of authority’ erupts when the ruling classes are no longer hegemonic. A class that no longer leads but merely dominates must exercise coercion; it can no longer rely on the consent of the masses. The masses, even though disenchanted with ruling ideologies, do not necessarily develop counter-hegemonic ideas so as to act in order to transform the stagnant order with revolutionary acts. In such a situation, says Gramsci, when ‘the old is dying and the new cannot be born; in this interregnum a great variety of morbid symptoms appear’.7 The task of theory then is to expose the operative forces that lie hidden behind the malaise, and not merely criticise or try to ameliorate the symptoms. It must seek the enlightenment of and with the victims of the malaise whose awareness of contradictions may, through such deliberations, lead to informed action. A major creative tension within the critical theory tradition is centred on the ‘delicate dialectic’ between spontaneity and organisation, agency and system or voluntarism and determinism. The self-reflexive nature of the tradition enables it to create imaginative and productive reinterpretations of major ideas for relevant understanding of the changing political practice. An equally important and creatively disputed issue is that of the relationship to the past. Marx’s own ideas appear, on a superficial reading, to display ambivalence and have often been interpreted as antagonistic to the past, as dead weight on the present that must be overthrown to usher in a new social order. A more sensitive reading by seminal thinkers such as Walter Benjamin and Ernst Bloch presents a nuanced view of Marx’s

4 JAYANT LELE thoughts on the revolutionary potential of the traces and memories of past traditions that remain alive, although in distorted forms in the present.8 I have been arguing for some time along similar lines, mainly through a reinterpretation of Indian traditions. Tradition, any tradition, I suggest is capable of generating from within, under conditions of crisis, a critique of an oppressive social practice, as a critique of its legitimating ideology. Such critiques are grounded in a rational recognition of an ideologically encrusted and practically denied potential social order. Where an adequate material basis for an epochal transition has emerged, it points to a concretely imaginable future in which existing oppressions can be overcome. Where such preconditions have yet to emerge, a critique appeals to the anchoring principles of tradition and demands that ‘unnecessary oppression’, socio-culturally determined within the specific parameters of a given tradition, be abolished. Such an approach to the past requires that its excavation, within the context of a future-oriented understanding of the present, be undertaken through a ‘critical hermeneutic method’.9 This reinterpretation of the past entails a re-examination of the concept of modernity. According to Marx’s critical insight, human beings live simultaneously in the two worlds of nature and culture (in and as nature, in and as society), and as mindful bodily (sentient and sapient) beings, they live their biographies—make sense of nature, selves and of others, within the symbolising universe of culture and society. The three defining elements of the human condition: one’s self (as subjectivity), the relationship to other humans (as intersubjectivity) and to the life and matter that exist in and outside, before, after and beyond us, as the objective third, form a dialectical unity that varies and differentiates in response to or by changing material conditions. We live this creative tension, to borrow from and adapt Ricoeur,10 in the growing awareness of our own finitude and the relative infinitude of nature and society into which we arrive and remain embedded but which we also make, through our everyday existence of creative social labour. With Ricoeur,11 I also see as inherent to the human condition a struggle, within the self, between ‘a believer and an atheist’. However, unlike Ricoeur, I see inherent to being human, the urge to suspect and to believe at the same time. It is not a unique property or condition of the Western woman/man of the post-Enlightenment age, but rather a human attribute. It is the basis of our creative–reflexive endeavour to reach out to and shape both nature and society as creators of objects and meanings at the same time. This is ‘human modernity’. As social beings, we explore, confirm and question ourselves, and the world in our everyday experience. Thus understood, modernity is neither

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a gift nor a curse, as it is often depicted, from the West to the rest of humanity, but a human attribute, a human faculty with which we suspect and believe. Enlightenment thought also saw it as a universal human attribute and called it reason.12 One of the unique and profound expressions of human modernity came in Europe’s transition from feudalism to capitalism. It had epochal consequences, some rather disastrous, for the entire world. However, given its truncated self-understanding and its misunderstanding of the past, its own and that of other civilisations, its universality was abridged by the West through Eurocentric evolutionism. Modernity was thus turned into the West’s unfinished global project. This drastically abridged outline of the two traditions and their somewhat starkly opposed politics is my starting point for discussing political theory and its relationship to today’s practice. We live today in a prolonged period of crisis, and a number of critical political economists have produced a detailed and varied account of the origins of the current crisis. The challenges that have emerged engulf all aspects of life. Today, two morbid symptoms constitute the most formidable challenge: economic and cultural fundamentalisms. I offer a brief sketch of the crisis and of these two symptoms and follow it up with a brief discussion of the theories of three of the most distinguished ‘political’ thinkers of our times: John Rawls, Jürgen Habermas and Jacque Derrida. All three have greatly influenced the way we make sense of the world of politics. All have produced incomparable outbursts of intellectual energy across disciplines. My selection is guided by their relationship to the critical theory tradition—with Rawls it was studied abstinence; with Habermas a matter of rich, varied and systematic withdrawal from once intense engagement; and with Derrida, there was a single, forever delayed, encounter with Marx. I shall look specifically for their responses to the current crisis. The paper concludes with some reflections on the adequacy of their responses. The three most pertinent aspects of global post-War political practice until the 1970s were: American hegemony, the Cold War rivalry and the primacy of the State in all three worlds of development.13 Having emerged as the most powerful economic and military power in the world, the United States presented a new vision of a world order of peace and stability. The Soviet Union rose from the ravages of the war and posed a serious challenge to American hegemonic aspirations, while struggles for national liberation contested colonialism. American hegemony rested, at this point, on countering the appeal of communism worldwide through promotion of development and democracy in the Third World than on its

6 JAYANT LELE coercive supremacy as a superpower14 since it ‘saw clearly that the more the USSR extended its influence beyond its borders, the more territory would be lost to US capital.15 Important parts of the Third World became a theatre of violent superpower contestations. In the First World, the welfare state, through Keynesian public policies and Fordist–Taylorist production techniques, managed to eliminate mass unemployment, improve the living standards for the ‘two-thirds society’16 and pacify class antagonism for the majority of workers. In the socialist states, Stalinism brought a modicum of improvement to the life of citizens at a heavy cost of inefficiency and loss of freedom. In the Third World, outcomes varied between stellar (as in East Asia) and minimal growth (as in most of Africa), and deeper dependency on the Western markets for all. The success of the capitalist welfare state in these golden years of capitalism became a serious challenge for liberal political theory which was still anchored in utilitarian ideology. Its response was fully articulated for the first time by Rawls. In the critical theory tradition also, several revisionists questioned the relevance of some of Marx’s concepts and in particular, the value theory of labour. In both traditions, the sphere of production was relegated to the background while the bureaucratic State, inefficient market and mass consumption became the domains of primary theoretical interest. Beginning in the late 1960s, the capitalist global political economy entered into a prolonged crisis, triggered by the escalation of the Vietnam War and its effects on the US balance of payments, the challenges of labour–capital relations globally and competition between American, German and Japanese capitals. The United States was forced to make drastic changes in its economic policies which produced catastrophic consequences for the world. The response to the crisis by both capital and the First World states produced consequences that are often subsumed under the rubric of globalisation. When this global reorganisation of capitalism occurred, the United States had already established its position as the ‘diffuser of cultural signifiers’ such as consumption patterns, lifestyles, branding and design and technological tropes. The three dimensions of American dominance—its predominance in the capitalist system, its pre-eminence as a military-technological power and its status as the locus of ‘high and low’ cultural modernity—came together once again after 1991 into an effective hegemony.17 Globalisation, as a response to the crisis of capitalism, was also a class project. It involved internationalisation of the production process

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through Information and Communication Technologies (ICT). The result was the decimation of the bargaining power of the working class globally through fragmentation, casualisation, feminisation and polarisation which made it invisible as a class with consequent difficulties in imagining solidarity.18 Despite the consolidation of class power in the hands of capital through financialisation, concentration and transnationalisation, the hegemonic discourse of the global financial managers continues to assert and get away with make-believe ideological claims that the free market will create a ‘stakeholder’ society under rapidly democratising capitalism in the emerging era of ‘people’s market’.19 The impact of globalisation on all major dimensions of life came through its complex interpenetration. It produced a range of diverse, locally specific effects.20 In the economic domain, for example, the now massive parallel (underground) economy intersected with—supplemented as well as challenged the formally legitimate economic transactions of transnational corporations—nation-states and the international financial institutions. Politically, the State has been retooled to suit the needs of capital. Popular resistance to these changes requires that the State develop new strategies of legitimation and coercion. It begins to rely on elements of culture in service of jingoistic patriotism. It mines and reshapes popular memories and wraps them in an ethno-nationalist garb. Militant self-assertions of latent cultural identities also emerge, as national, pannational, language, religion, or ethnicity movements.21 The State can now use ‘war on terror’ for the rapid expansion of its coercive apparatus for domestic use. Socially, there has been a massive reorganisation of consumption where ‘the seduction of the market’ engulfs large numbers through the ‘culture of consumption’. A vast percentage of the global surplus of resources flows to the North. The ‘grotesquely uneven’ 86 per cent of total annual global consumption by only 20 per cent of the world’s population living in the North22 in no way changes ‘the ecological and social inequalities’ embedded in increased global consumption,23 even though it pacifies some of the discontent simmering underneath.

The Two Fundamentalisms Most debates on the concept and content of fundamentalism centre on religion as a unique object of fundamentalist appropriation, and not as a special case of the larger cultural turn under the postmodern condition,

8 JAYANT LELE with its intimate links to late capitalism and its vicissitudes or the associated resurgence of identity politics under conditions of its most recent crisis.24 According to Habermas,25 every faith has a dogmatic kernel of belief, a worldview, which presents itself as orthodoxy when backed by an authority (such as the Pope). It turns fundamentalist when it seeks or wields power to enforce the received interpretation as the only acceptable one in a world characterised by a plurality of faiths and epistemic frameworks. Riesebrodt,26 in his careful sociological analysis of religious fundamentalism, points to other important dimensions—a subjectively perceived sense of crisis and an urge to preserve or restore an imagined, idealised past social order. If we take the basic elements of these conceptions of fundamentalism—a movement to enforce a singular authoritative interpretation of the past under conditions of crisis, with violence if necessary, and despite the presence of contradictory beliefs or evidence—a number of not specifically religious movements that display these traits fall within the purview of this concept. In any case, fundamentalism has been already subject to a large number of diverse uses and interpretations. Attempts to limit it to religion, or even more specifically to Abrahamic faiths, and to resist its ‘empirical widening and political instrumentalization’27 seem unwarranted. Cultural fundamentalism, given the diversity of cultures, takes a variety of specific forms. Depending on the specific context it may originate from—in defence of or against authoritative claims of a currently dominant orthodoxy—what they all have in common, as fundamentalisms, is the claim to a singular authentic interpretation of the past and a willingness to resort to militancy including violence for its enforcement.28 The dogmatic kernel of belief in liberal economic theory is the isolated ‘autonomous’ and economically rational individual that Marx had aptly ridiculed as ‘the 18th century robinsonades’. The term market fundamentalism is now in vogue, and refers to the belief in the perfectibility of the market which, it is claimed, will deliver just desserts, when left to itself, by rewarding ‘rational’ individuals while punishing the irrational ones. Here the individual appears as a stand-alone market-guiding consumer. This belief is matched by an entrepreneurial twist of a ‘quasimystical “objectivistic” individualism of the Ayn Rand variety’. Nef and Robles29 list a few other ubiquitous beliefs that make up neo-liberal economic fundamentalism, such as neo-classical economics and rational choice theorizing, monetarism and fiscal restraint, neo-conservatism and Social Darwinism. Together they work towards a clear political aim of

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favouring the interests of transnational capital, especially finance capital, and influencing decision-making at the highest levels within the group of Seven Nations and beyond.30 There is sufficient evidence in critical literature to show that starting with the Reagan years and the deepening of the economic crisis, neo-liberal orthodoxy moved from a mere dogmatic interpretation of economic reality and liberal theory—sustained by American and European think tanks during the lean years of the development era—to its political imposition on often unwilling nation-states through ‘authorities’ such as the World Bank and the International Monetary Fund (IMF), using the structural adjustment programmes (SAP) and leading to violent disruptions in livelihoods and survival of the deprived sections of the populations. It continues to assert and impose its faith while denying the validity of all contradictory evidence.31 Fundamentalism flattens history. Economic fundamentalism essentialises the existing structured relationships—economic, political and cultural—as universal truths. It invests impersonal natural power in the market so as to claim benign consequences from its freedom. It demonises the State. It creates the illusion of equality by focusing on the consumer in a world that necessitates inequalities of class, race and gender. In order to accomplish this, it glosses over the creative dynamic of structure and agency. It reinterprets the past in the image of the present. It produces one-size-fits-all models and enforces them with the power of capital and the empire. Cultural fundamentalism also flattens history in constructing identities as unity or difference. It essentialises, as forgotten and ignored, a manufactured image of the past to which it appeals as the source of a new sense of community. This newly constructed comradeship is angry and vengeful about a past that is claimed to have been violated by an enemy it must also create. It blames the Other, be it modernisation, the secular State, or innocent and helpless or reawakened and recalcitrant minorities in its midst. It renders opaque the historical and material specificity of a grievance or of an experience of domination and oppression in order to employ it in identity politics of manufactured suspicion and hostility. It thus manages and deflects their anger and hopes away from the real sources to either sustain or enhance entrenched privilege. With the crisis of the 1970s, the symbiotic relation between cultural and economic fundamentalism became most visible. In the United States, Christian fundamentalism, dormant in the first two decades of the post-war years came alive along with neo-liberalism during the Reagan years.32

10 JAYANT LELE The dogmatic kernel of neo-classical economics, belief in the autonomous individual as prior to society, is foundational to neo-liberalism. It still wields a strong influence on political liberalism, although its interpretations have become increasingly flexible. As the fortunes of capital shift, it undergoes the necessary adaptations along the liberal spectrum. Under the current crisis, it reversed the positive image of the welfare state by appealing to the pervasive liberal suspicion of the State while portraying the market as the ideal, just and fair distributor of rewards and punishments for individual and corporate actions in the ‘classical’ liberal idiom. Fundamentalist identity constructs are not sheer ‘postmodern inventions’ without links to ancient ways of life as Jameson33 suggests. They are not mere ‘aesthetic fiction’. They are crafted through a systematic distortion of the past. While the quest for power often motivates those who mobilise, those who follow do so in the hope of a better, more just and free future. The dynamic moments of past struggles in the history of a tradition are reinterpreted along with the texts, symbols and rituals by the former to construct a hostile and evil Other. These are then transformed into spectacular acts of symbolic or real violence against the Other through effective use of the postmodern trappings of ‘image and media barrage’ of mass media culture and entertainment industry.34

Rawls Rawls lived and wrote during the golden age of capitalism and through the rise of the morbid symptoms that came with its crisis. His massive impact on the professional world of political theory makes sense when placed in the context of the changing political practice in the United States. His contributions in the 1950s and 1960s brought the issue of justice to the centre. They appeared revolutionary in the context of the McCarthy witch-hunt of the late 1940s and the 1950s and the nascent but smouldering discontent that exploded into the first quiescent and then radical civil rights movement. In reality, most of Rawls’ essays on the subject and the culminating Theory of Justice, acclaimed as a timely response to Berlin’s accusation that ‘no commanding work in political theory has appeared in the 20th century’,35 remained anchored in a firm belief in liberal reformism through public deliberations and, if necessary, ordered protests. Echoing Habermas’ nostalgia for the bourgeois public sphere, he argued for

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‘reasonableness’ of competent moral judges in developing principles of justice. Such principles would survive, however, only if they could evoke free and willing allegiance through gradual convergence and agreement of citizens.36 Rawls responded through Theory of Justice to the changes in economic theory that corresponded to changed practice. Political theory was still treating citizens as ‘a collection of utility maximizers out to satisfy their own aims and desires’. He was ‘the first modern liberal political philosopher’ to address the problem of justice ‘while explicitly accepting the orientation of modern welfare economics, where social equity assumes priority over property rights’.37 Rawls argued for ‘the conception of the moral individual: someone who is responsible for his or her own goals’.38 When placed under the ‘veil of ignorance’, he argued, such moral individuals will, universally, accept his two principles and with these, Rawls believed, they could overcome the liberal paradox of liberty and equality. In the 1970s, the context changed from the golden years to a deepening crisis of capital. With neo-conservatives leading the charge, a composite Right consisting of hawkish foreign policy supporters from the North East, the old anti-communist conservatives, the traditional opponents of the civil rights movement and the resurgent religious right from the South, together mobilised voter discontent enough to secure Reagan’s victory. Rawls’ response to the onslaught was to reiterate his faith in social contract and cooperation between reasonable citizens. His Political Liberalism asserted the possibility of cooperation even for those holding deep personal beliefs in ‘comprehensive doctrines’. New concepts like ‘overlapping consensus’ and ‘public reason’ make their appearance to give the revised theory of justice the same universalising aura. Political Liberalism distinguishes between reasonable and fundamentalist beliefs. It lists the basic elements of the prevailing liberal consensus on ‘political values’ and affirms the coexistence of the reasonable beliefs and those values as the norm. It then suggests that ‘except for certain kinds of fundamentalism, all the main historical religions admit of such an account and thus may be seen as reasonable comprehensive doctrines’.39 His overlapping consensus is not an outcome of compromise, he insists, nor does it involve transcendence of what Gadamer describes as prejudices. It is only a result of reasonable citizens treating their comprehensive doctrines as modules. Political justice becomes just another module to which they can adapt their reasonably believed comprehensive doctrines.

12 JAYANT LELE The idea of public reason reaffirms the liberal belief that individuals in formal democracies are capable of living a double life by splitting themselves into private individuals, relentlessly pursuing their often antagonistic private interests, while being able to leave them behind and, as public citizens, willingly proposing and abiding by terms of cooperation, that require them to curb their pursuit of such interests.40 When the challenge is that of gross inequality, they will accept the ‘reasonable’ solution given by the distributive principle of charitable justice, for the severely deprived, while protecting the right to private property as the institution necessary for liberty, even though it must necessarily entrench material inequality under capitalism. The global context of American politics changed, once again, with the decline and fall of the Soviet bloc. The anticipated peace dividend through substantial reduction of the nuclear arsenal did not materialise. The uneasy peace of the Cold War era was replaced by rampant subnational, national and pan-national wars wearing religious and ethnic mantles. Religious and nationalist comprehensive doctrines were now being employed or advocated by fundamentalist State and non-State actors and were beginning to threaten the weakened but now unrivalled American hegemony of a destabilised world order. Rawls’ Law of Peoples divides ‘the peoples’41 of the world into three categories—well ordered and decent liberals; well ordered but non-liberal decent peoples; and the non-decent, illiberal peoples who advocate fundamentalist causes and try to impose them beyond legitimate and established national borders. Law of Peoples poses the question: how are the well ordered liberal people to relate to well ordered non-liberal but decent peoples of the world as well as the indecent, illiberal peoples. Rawls argues that just relationships between liberal and non-liberal decent people are possible—even though the latter live in hierarchical societies and enforce comprehensive doctrines—as long as they respect basic human rights, ensure basic subsistence and security for all citizens as well as protect property and a measure of liberty of conscience and freedom of thought. If such agents were to seek conditions of justice from behind a ‘veil of ignorance’, they would produce a contract, a law of peoples, similar to those that exist between liberal peoples. Although the liberals can deal with the well ordered hierarchical peoples in the same way as the other liberal peoples, the distribution principle does not apply to them, even if that means one ignores prevailing material and capability inequalities—no matter how enormous. The reason: ‘the welfare of a person is more often at risk from a distorted

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and corrupt political culture than from a country’s lack of resources’. The remedy for that is ‘to make the political traditions and culture of all peoples reasonable and able to sustain just political and social institutions that secure human rights’.42 The non-decent ones are ‘burdened societies’, that ‘lack the political and cultural traditions, the human capital and know-how and often the material and technological resources needed to be well-ordered’.43 The liberal peoples have no equity obligations towards them. The project of ‘pushing polyarchy’,44 initiated by Reagan for decent illiberals and pursued with devastating militancy by G.W. Bush against the indecent ‘rogue states’, when coupled with minimal humanitarian aid, finds its total endorsement in Law of Peoples. Invasions are justified to set the human rights record straight. There is no indication anywhere of an awareness or refutation of the mass of critical literature that points to the responsibility for the past and current predatory practices of the colonial and imperial regimes of decent and liberal democratic states for the burden of the burdened societies. The underlying basic concern of all of Rawls’ major works and his numerous papers,45 despite his studied abstinence from engagement with the political practice of his times, either in the written work or through political activism, was the defence and preservation of well-ordered liberal societies against threats from ‘unreasonable’ peoples within and beyond. The founding principle of liberalism, an uneasy compromise between the basic Enlightenment ideas of liberty and equality, with a heavy tilt towards the former, was central to all of his writings even as he adjusted his conceptual architecture to meet the demands of the changing times.46 What lessons can we draw from Rawls’ opus for our concern with the challenges of fundamentalism? While Theory of Justice is mostly concerned with upholding the changes in the American political practice ushered in by late capitalism, both Law of Peoples and Political Liberalism directly address the threat of cultural fundamentalism, domestic and international. Their message is clear. Rawls affirms the basis of earlier American hegemony, initially in terms of its proclaimed mission of promoting development and democracy around the world. As that basis begins to fade, the tone shifts rather decisively towards legitimation of economic and military domination in a recalcitrant world. The hawkish conservative drift of his post Cold war writings is unmistakable.47 His language of the ‘outlaw state’ seemed to echo the rhetoric of the Department of Defense that was demanding an arms build up bigger than that of the Cold War era.48

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Habermas Habermas’ left liberal activism has remained decidedly to the left of Rawls’ theoretical stance.49 The context of his early writings was set by the American occupation of Germany and its project of a free market democracy substantially modified by the anti-communist agenda.50 His adulation for the ‘American political culture’ and his gratitude to America for acquainting Germany with ‘the radical democratic spirit of the American pragmatism of Peirce, Mead and Dewey’ date back to this era.51 From the outset, it may be argued, his work displays an abiding faith in the virtues of liberal democracy as the best practical expression, notwithstanding all its faults, of the (Kantian) Enlightenment ideals. It remains, for Habermas, the most advanced, ‘modern’ form of organisation of social life, where free citizens can arrive at a consensus on the common good, through a ‘communicative’ exercise of public reason. Even in his earliest important work on the structural transformation of the public sphere, Structural Transformation of the Public Sphere, Habermas displayed, like his Frankfurt School predecessors, a deep concern about the decimation of and continuing threats to the survival of constitutional democracy in the capitalist world; hence, perhaps, one sees his unrelenting preoccupation with the assertion of its virtues and the downplaying of its faults. 52 Defending democracy has entailed, for Habermas, the need to prove the inadequacy and/or irrelevance of Marx’s analysis of capitalism, of its inherent crisis tendencies and of its relationship to the State and bourgeois society. This has been central in much of his work and has involved several moves that have been full of rich and insightful meanderings into philosophy and social theory. We will examine all too briefly only three of these moves here—his turn to social evolutionism, his ‘linguistic turn’ and his adoption of the systems theory of Talcott Parsons and Nicholas Luhmann. During the 1970s, Habermas53 engaged himself in a theoretical project, designated as ‘a reconstruction of historical materialism’.54 This was his most direct attempt to reinterpret Marx’s work, not as what it was—a practice-oriented critique of political economy of capitalism—but as a theory of social evolution. The aim was to challenge the centrality of social labour in the simultaneous interaction of human beings with nature and society. Marx’s analysis of capitalist society, Habermas argued, when viewed as an immanent critique of the normative domain of bourgeois ideals,

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has lost its relevance with the transition to organised capitalism. Those ideals had ‘gone into retirement’ and ‘bourgeois consciousness has become cynical’.55 Using relevant anthropological findings, Habermas also argued that labour or work—‘sensuous human social activity’ for Marx—should be understood as governed only by instrumental rationality, since it emerged at the hominid stage of evolution and is limited to the domain of nature while interaction, as an activity related to the social-symbolic domain (emerging only with Homo sapiens), is to be seen as governed by communicative rationality. The former produces rules of technical knowledge while the latter is governed by norms calling for a distinct form of justification.56 The idea of human reason split into two has been central in much of Habermas’ theorising. It feeds into his reinterpretation of Weber’s notion of structural differentiation, filtered through the system-theoretic lens of Parsons and Luhmann. He accepted Weber’s understanding of life under capitalism as based on differentiation into three value spheres— science, morality and art—and linked them with three generalised symbolic media of money, power (or domination) and language. The first two are to be treated as the steering media of the ‘systems world’ of societal management, organised through the economy and the State. Language is the generalised (universal) medium of everyday communication in the ‘life world’. Thus the ‘linguistic turn’ and the ‘system-theoretic turn’ come together. The system-theoretic conversion of the capitalist mode of production allowed Habermas to reject the relevance of the wage–profit contradiction (and the associated law of the falling rate of profit) under organised capitalism, on the grounds that ‘the classical fundamental categories of the theory of value are insufficient for an analysis of governmental policy in education, technology and science’.57 While this assessment was made in the era of the welfare state and the wage–profit compromise, Habermas has shown no inclination to change it and revise his theory even after that compromise started to fall apart. His faith in his old analysis seems unshaken even under the continuing crisis of capitalism and the rising threat of liberal democracy’s descent into new forms of barbaric State terror. Although he could ignore these implications of the rise and spread of economic fundamentalism, Habermas cannot ignore the challenge of cultural fundamentalism, especially its religious manifestation. Withdrawal of religion from the public domain, through Weberian rationalisation of

16 JAYANT LELE comprehensive worldviews, was the keystone of his theory of social evolution and modernity. Fundamentalism is only the most extreme expression of a more general and more troubling ‘religious turn’ in Western philosophy as well as in the everyday life of citizens in the West.58 Habermas’ rethinking on religion has been prompted by the new challenges of our times, religious fundamentalism being one of them. He treats it as an extreme manifestation of a widespread disenchantment with the Western models of modernisation. The other serious challenge for him is biotechnology’s unrelenting march into the danger zones of human self-identity as species-being. Habermas had cut off the bodily dimension of human sociality through the splitting of instrumental from communicative reason, so as to devalue the centrality of labour in human sociality. He celebrated the fragmentation of life under capitalist modernity as evolutionary differentiation. Now he wonders if the persistent meaningfulness of religion as a comprehensive, unfragmented worldview may be the only source remaining to appeal to for putting this humptydumpty of reason back together again. Habermas refuses to recognise today’s cultural fundamentalism for what it is: a morbid symptom emerging out of the continuing crisis of capitalism.59 Surprised by ‘the fact that religious traditions and communities of faith have gained a new, hitherto unexpected political importance’,60 he still refuses to accept the possibility that they may contain an unforeseen integrative potential that can be critically interpreted in terms relevant to our times. In his work, we note a desperate search for accommodating them in the liberal political public sphere, but only on somewhat defunct secularist terms. All the soul-searching reflected in these writings and the resulting proposals do not go very far.61 One such moment of soul-searching, potent with a rare possibility, occurred in the early 1990s. In an interview about the debates on the first Gulf War, Habermas62 wondered if the principles of international law were so West-centric that they ‘are of no use for the non-partisan adjudication of international conflicts’ and whether the concept of human rights simply conceals ‘an especially subtle and deceitful instrument of domination’. Unwilling to accept such self-condemnation, he pins his hope on Rawls’ supposition63 that there must exist ‘an overlapping consensus within… religious interpretations of deep feelings and elementary experiences of communicative action’ and goes on to affirm his faith: ‘I am convinced that Rawls is right’.64 Taking that insight seriously and investigating it fully will require more than a simple hermeneutic exercise of examination and translation of the

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interpretations of the doctrines and texts that are currently propagated or believed in dogmatic ways. It will require a dynamic, historicised ‘critical hermeneutic exercise’ of excavating the struggles that challenged the then dominant dogmas.65 Their successes or failures often remain hidden in symbols, rituals, deities and demons behind currently accepted meanings. They are part of the living traditions with millennia of continuous past behind them. The necessity and value of such an effort has remained beyond the horizon of even the most insightful liberals of our times.

Derrida Derrida’s first major works appeared in 1967 in the context of a political practice highly polarised between a bourgeois bloc of the ruling right and a militant working class organised mainly under the Communist Party of France (PCF) influenced by Stalinist ideas of organisation. Derrida’s early studies of Heidegger, his close association with his mentor Althusser and the latter’s critical involvement in the PCF, and the emerging wave of denunciation of Stalinism and the associated critical rethinking of Marxism in Europe were also part of that political context, along with the memory of the pre-war liberal descent into barbarism. They have had a lasting impact on Derrida’s work. The diversity of the texts and themes, and the complexity and richness of imagination and play with which Derrida has dealt with them, makes it impossible to meaningfully summarise or systematise his work. Much of his earlier critique of philosophical texts contains suggestive insights on political theory and practice, and has been so used by several scholars. His more direct interventions in political theory began, however, only in the 1990s. They were provoked, simultaneously, by (a) the disintegration of the Soviet bloc and (b) the emergent question: of Marxism, as well as (c) the rise and spread of cultural fundamentalist conflicts and the religious turn in the political practice of Western democracies. Common to his earlier and later work has been, I suggest, an intense commitment to spontaneity in the binary: spontaneity versus organisation. Although it has been at the root of so many debates in Western philosophy and political theory, Derrida has been by far the most influential from among the ‘sons of Nietzsche’. 66 In the early years, his thinking on Marx and Marxism had remained ambivalent enough to discourage him from submitting Marx to

18 JAYANT LELE deconstruction. His much-noticed abstinence was also a response to the political context of his times. While admitting that the critique of idealism and self-reflexivity was the main bond between ‘dialectical materialism’ and deconstruction, he claimed that an ‘encounter with the materialist text’, although absolutely necessary, would be of no benefit, theoretically or politically, before the conditions necessary for such contact were rigorously elucidated’.67 That encounter finally came as Spectres of Marx. Derrida labelled it as ‘several hypotheses on the nature of responsibility’.68 Spectres of Marx registers its relief with the demise of the Soviet bloc and that of the totalising stranglehold of ‘the dogma machine’ and the ‘ideological apparatus’ of the State, the party, the cells and the unions. It reflects the old disenchantment of the left in Western Europe with Stalinism and its impact on their communist parties. It denounces, at the same time, the self-congratulating, ‘End of History’ triumphalism of capitalism, liberalism and parliamentary democracy, and contrasts it to the ‘ten plagues’ of globalisation that have been unleashed and that span all aspects of human life—economic, political and cultural.69 This state of our times leaves no excuse, says Derrida, for turning away from the responsibility to read and re-read Marx. A detailed examination of the ideas and claims in Spectres of Marx is beyond the scope of this paper. The response to Derrida’s work spans the whole spectrum of scathing criticism and fawning adulation that is also spread along the left–right spectrum. I shall limit my comments only to a set of conclusions that seem to emerge from reading Spectres of Marx along with a few other writings that relate to and have implications for the challenges of our times. The strategy Derrida adopts in Spectres of Marx is that of purging all other spirits of Marx so as to establish the primacy of, and commitment to, the only spirit that seems to him capable of releasing human spontaneity from the bonds and constraints of organisation. This means, for Derrida, that it must be freed not only from the constraining organisational arrangements such as the party, the State or the union, but also from the concepts that entail organisation, namely social labour, mode of production and social class. And yet, the relationship of spontaneity to organisation is also an aporia, as is the case with all other binaries that Derrida excavates and deconstructs in his writings. The purge is, therefore, accompanied by a promise to never abandon the only spirit of Marxism that is to survive, that of critical self-reflexivity as the ‘critical idea of the questioning stance’,

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a prerequisite for liberating spontaneity, but also an intimate relation to practice: its emancipatory, messianic affirmation and promise to ‘produce events, new effective forms of action, practice, organization and so forth’.70 This, one assumes, for Derrida, is his ‘democracy to come’, expressed as a messianic hope. On offer is the concept of the ‘New International’ as an organisation purged of all old organisational residues of all previous Internationals. The label is invoked, nonetheless, only rhetorically, so as to silently denounce them. The New International seems to reiterate the liberal reformist faith. Derrida asks the New International to continue to exert pressure to bring about changes to the international law, so as to extend and diversify its interventions. As a radical gesture, however, it is also accompanied by ‘a link of affinity’ to an unnamable, thoroughly indeterminate agency, emptied of any definable content: ‘without status, without title, without name, barely public even if it is not clandestine, without contract, out of joint, without coordination, without party, without country, without national community and without common belonging to a class’.71 It is difficult to avoid the temptation to imagine Derrida seeing that link of affinity reflected in the sporadic and ineffective eruptions of anger and celebration of ephemeral solidarity, found among the scattered antiglobalisation activists and the participants in the World Social Forums. Spivak was incisive in her critique of Derrida’s lack of understanding of the nature and substance of today’s capitalism.72 Jameson’s sympathetic critique also chided Derrida for the lack of a more nuanced understanding of class before declaring its irrelevance. Spivak went further to criticise Derrida for his empty reference to ‘Marxist critique, the critique of the market, of the multiple logics of capital’ without recognition of the vicissitudes suffered by the organised opposition to the global managers of capital, such as the Group of Seven, and without a ‘researched account’ that refers ‘to the longstanding global struggle from below’. ‘Why should the South’, she asked, ‘feel any degree of confidence in the project’ of the New International when the Human Rights and International Law lobbyists tend to be only the ‘irreproachably well-bred?’73 As far as politics is concerned, the self-reflexivity of deconstruction74 addresses histories and traditions of concepts through deconstruction of texts. In the work of the 1990s, Derrida superimposes his textual discoveries on to the political practice of our times. What is gained in the process is an enriched understanding of what is, in terms of what it can be, counterfactually as it were, in ways that take us beyond the conceptual and methodological apparatus of political economy and is still consistent

20 JAYANT LELE with the sketch of critical theory project sketched earlier. What is lost in the process, because of Derrida’s studied refusal to do so, is a necessary engagement with the materially grounded understanding of political practice, in terms of the origins and trajectories of the crises of capitalism and the response of the institutional nexus that draws on one of the two sides of the binaries of these concepts for its legitimation. Due to an obsession with the tendency of philosophical and political binaries to secretly resolve themselves into domination of one term over the other, and a desire to unsettle them, so as to expose the way they are used to serve the ideological function of entrenching hierarchy and oppression, Derrida prefers to construe them as aporias. Understood as contradictions they would remain open for a critique of the present in terms of a glimpse beyond, into futures made possible through practical transformative action. However temporary and fleeting, which is what they will invariably turn out to be, their anticipated coming alone sustains hope. Bloch locates hope, as a principle, in the events and expressions of everyday life.75 Derrida, however, is convinced that all such moments of transformation must inevitably result in some form of totalitarian organisational takeover. His fear of organisation haunts his advocacy of spontaneity in ways that lead to this hasty closure. As a result, Derrida opens himself to the legitimate accusation of depoliticisation of politics and its debilitating impact on the political practice of our times. In the end he has nothing of value to say with respect to the challenge of economic fundamentalism. In Spectres of Marx and since, the notion of the messianic has played a crucial role in Derrida’s political writings. His interest in religion was stimulated particularly by Benveniste’s76 reflections deriving from the recognition that Indo-European vocabulary does not present a ‘common term’ for ‘religion’. Derrida’s ‘Faith and Knowledge’77 deals extensively with his own derivations from this discovery. His deconstruction of religion in ‘Faith and Knowledge’ also responds to the immediate concerns of our times, through the direct relationship between faith and teletechnoscientific reason, and thus religion’s inseparable connection to knowledge, fundamentalism and violence. We cannot dwell here on the entire range of Derrida’s insightful engagements with religion and must remain satisfied with a brief, rather starkly judgmental observations on those. Politics of Friendship78 is also at the same time politics of faith. Much of Derrida’s work in the 1990s has been ‘political’ and ‘religious’ at the same time. Spivak79 remembers Derrida as a teacher and finds in Politics of Friendship, and in its reference to ‘the event of the text Nietzsche’,

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a text that is not to be deconstructed but to be enacted in the classroom. Caputo80 discovers in Politics of Friendship, a Zarathustra who is also a Dionysian rabbi and a preacher who comes to preach to us about friendship and democracy. In Spectres of Marx, democracy to come is conveyed as a messianic hope, along with a promise to preserve the messianic in Marx but without messianism. Purged of all messianisms, he says, of all religions—but the ones Derrida knows something about are, of course— only the Abrahamic ones. These engagements, starting with Spectres of Marx, are best understood as an attempt (like that of Marx81) to go to or at least point to a place beyond religion; hence the messianic without messianism. In ‘Faith and Knowledge’, Derrida exposes the limits or salience of what constitutes itself under the label religion and, more specifically, ‘the Christian prevalence that has imposed itself globally within the said Latinity’82 that goes with it. He goes on to indicate the necessity/impossibility for the debate on the ‘return of religion’ so as ‘to think a situation in which, as in times past, there will perhaps no longer exist, just as once it did not exist, any common Indo-European term for “religion”’.83 Despite widespread allusions to and suggestive hints about potential points of entry, in his encounter with religion, Derrida, in the end, declares, rather hastily I believe, that his notion of the messianic has and will have nothing to do with tradition, any tradition. His fear of organisation, and hence that of organised religion, drives a hard bargain. Aware of fundamentalism that lurks in the shadow of every tradition, with its penchant for dogmatic assertions and claims to universality based on exclusion, Derrida dissociates himself from all of them, in all their manifestations. He thus shuts himself off from their inner dynamics and their historic responses to challenges from within and outside. Thus he remains oblivious to what I have called the modernity of tradition.84 Instead of engaging them historically and in their material contexts, he takes shelter in language theory and the structure of the speech act in order to retain the singularity intact, while opening himself to the considerations of universality. This is yet another opportunity he almost creates for himself and then emphatically rejects.85 Spivak86 revised her earlier critique of Derrida after reading Spectres of Marx along with Politics of Friendship and seems to have discovered an equivalent of Marx’s revolutionary class in the ‘indefinite, unrecognizable, yet active-in-silence collectivity, with no possibility of coming together across insuperable linguistic and spatial divides’. She anchors in it her hope for ‘the possibility of resistance in the far-flung global grassroots’.

22 JAYANT LELE She still rejects the New International since it remains susceptible to the risk of being assimilated to ‘that self-styled international civil society’. Inspired by the idea of teleopoiesis, Spivak reads in it the shocking potential to affect the distant through imaginative remaking without guarantees. As a messianic structure it is, to Derrida, an invitation to the silent and distant ‘future philosophers’ to whom he offers a hand of friendship in anticipation of their becoming ‘future philosophers’. It will be, says Derrida, ‘perhaps’ a ‘community of those without community’. To understand what this means we have to remember Derrida’s reading of Schmitt; there can be no politics without community, no community without friendship and there can be no friendship without an enemy. To Spivak, the idea of teleopoiesis suggests a politics of identity which can be employed in bringing about a ‘slow but tenacious change of mind’ so as to reach towards the distant other by ‘the patient power of imagination’. Her interest is pedagogic. Teleopoiesis is to be enacted in a classroom—in the North with new/old ways of reading the literature from the South so as to sustain alterity and to overcome the now common tendency to domesticate the other. In the South, teleopoiesis would involve a classroom full of ‘unexceptional rural teachers’ where their teacher must invent new pedagogic techniques to work with them.87 When placed in the context of the pedagogic violence that fundamentalists are inflicting on the future philosophers in the South,88 this is indeed an important and welcome gesture. In the North, similar violence comes from a tooquick familiarisation and commodification of the otherness of foreign literature.89 Missing from this proposal, however, is a glimpse, a window on how this dialogue with the future philosophers can be made to work. With their current beliefs congealed into prejudices and convictions, nurtured through dogmatic indoctrinations, the teacher must take on the role of a heretic seeking a dialogue with a confirmed believer.90 What then are the requirements of such a dialogue to be potentially successful? We will return to this question towards the end of this chapter. Jameson91 views Derrida’s New International as a new kind of political intervention for which globalisation sets the stage. He views the idea with deep sympathy as it points to the possibilities—through new teletechnology—for the networks of radical intellectuals on a world scale analogous to those of Marx’s times who communicated using the print media. These mildly radical overtures of Spivak and Jameson are of interest, as they read in Derrida’s work, hints of a possible counter-hegemonic political

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practice for our times. Without them, the idea of the New International and the proposals for gradual reforms to international law and enforcement of human rights, through civil society pressures, seem dangerously similar to those reiterating the cosmopolitan project of formal democracy, emanating from the two liberal protagonists we have been looking at in this chapter. Spivak92 offers precisely the same criticism. Constituted as aporetic binaries, the concepts of hospitality, friendship, forgiveness and justice have produced interpretations that range from conservative to radical. Despite Derrida’s cultivated ambivalence and seductive ambiguities, his major conclusion reinforced in his Borradori interview, seems unmistakably similar to Schmitt’s decisionism. His aporias, when combined with an unhesitating conclusion that decisions must be made and made prematurely and in the dark leads, not surprisingly, to conservative conclusions about what is to be done in the political practice of our times. A call to act responsibly in everyday life—with the full tragic knowledge that whatever you do does not really matter, and the show must just go on, as it did in the past and so it will in the future, until perhaps, someday, somehow, a messianic event will change it all, or may not—at best it teaches humility, and at worst, total indifference.93 Derrida’s ‘rejection’ of tolerance as a form of charity and paternalism, as ‘the good face of sovereignty’,94 has been widely noted. He invokes pure hospitality as a contrasting vision to tolerance, but only as a standard for criticising it. But pure hospitality, pure justice and pure friendship without an enemy are impossible, at least in our times and perhaps forever, without determinate action for which there is to be no planning. So we must learn to live with them, tolerate them in the awareness of their impurity which at best means without arrogance. In the end, with all the cautionary words such as ‘Tolerance remains scrutinized hospitality, always under surveillance, parsimonious and protective of its sovereignty’,95 he feels forced to arrive at this conclusion, ‘I would take the side of the camp that, in principle, by right of law, leaves a perspective open to perfectibility in the international institutions’.96 We are back in the world of patience and tolerance. Rejecting Rawls’ and Habermas’ rather haughty Kantian notion of universal tolerance—one that distinguishes among ‘decent liberal’, ‘decent illiberal’ and ‘illiberal rogue’ states and thus refuses to grant the same status to all within the tolerance principle97—only means embracing a humble and tragic tolerance, juxtaposed to and thus tempered by yet another Kantian notion of hospitality, itself tempered by the exposure of its aporetic nature. Tolerance so adopted is also to be kept open to criticism and is to be rhetorically pushed to its limits, demanding expansion.

24 JAYANT LELE How should one understand and interpret Marcuse when he says that ‘the telos of tolerance is truth’? Both Habermas and Derrida, like Marcuse, know that there is no truth ‘out there’ waiting to be ‘dis’-covered. Habermas had cited Vico to make the point: ‘for there can nowhere be greater certainty than where he who creates the things also gives an account of them’.98 Marx turns Vico on his head in the Eleventh Thesis on Feuerbach. This means, for us, that the truth, of a world beyond tolerance pure or tainted, has to be created by action—first by comprehending reality as it is in terms of what can be; hence the need for tolerance. It is a precondition for a dialogue between the heretic and the believer. It is telos—a new shared understanding of what is and what it can be, and a shared commitment to change the world so as to make that newly shared sense come true. Creating a formally equal space for such a dialogue between materially unequal distant strangers, a consciously imagined mock ‘level playing field’, equivalent to Habermas’ utopia of an ‘ideal speech situation’, can only be the first step. Truth to be created is not in the consensus so arrived at, but in the anticipated consequence of practical action that must follow. What, we must ask, are the preconditions for a dialogue between Derrida’s philosopher colleagues such as Spivak and Jameson on one hand, and his future philosophers on the other. Spivak is right that the approach in the classrooms of the North and those of the South will have to be different. Let us limit ourselves for the moment to those in the South. At the very least, I suggest, it calls for an ability on the part of the former to enter the lifeworld of the latter. In that world tradition, a memory of past struggles still remains alive in the form of deeply held beliefs expressed through myths and folk tales and acted out in rituals. Their current understanding of those beliefs and practices may well be found congealed in the dogmatically transmitted interpretations rendered from above. Only because tradition is still alive, it remains available for such manipulation by cultural fundamentalists, both ‘legitimate’ and deviant. Its current ideological crust remains effective by concealing but keeping alive an opening to a future fulfilment of what has been denied in the past and in the present. If the teachers—as partners in such a dialogue, be they Jameson’s intellectuals or Spivak’s self-proclaimed speakers who claim the right to speak for the subaltern—are to seek such a dialogue, with a view to meeting the challenge of today’s political practice, they will have to learn the art of listening and suspecting at the same time. Developing critical hermeneutic competence to listen to, believe in and understand today’s believers who are also tomorrow’s philosophers, while suspecting their

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current understanding of belief is the precondition for that dialogue.99 But a community that will emerge in this exercise will have to begin with Derrida’s insight derived from Schmitt: no politics without collectivity, no collectivity without friendship and no friendship without an enemy. A dialogue of this nature will have to remain open to learning from the past experiences of actions oriented to transformative practice without prejudice because of its past mistakes and by re-understanding its critical innovations. It must organise itself as a democracy within, and even remain open to a dialogue with the enemy, having clearly identified its nature and its limits. But when that fails it must prepare itself for action against its forces, not in self-annihilating ways but with a shared sense of enlightenment and a strategic openness. In Marx’s own times, the workers were supposed to organise themselves as a democratic Communist party, thus ‘externally, in the face of the class enemy, strategic action and political struggle; internally, with respect to the mass of workers, the organization of self-reflection. The vanguard of the proletariat must master both: the critique of weapons and the weapons of critique.’100 The classes made antagonistic by the very nature of the system they had become part of, were far more clearly identifiable then. Times have changed. In our times, a project of Enlightenment with and of the subalterns will be possible, only through a critical hermeneutic engagement with tradition. It must combine the hermeneutic of belief with that of suspicion by being sensitive to the history of hegemonic appropriations of traditions, and the challenges that had emerged as a result in the past. Only a unified critical excavation of the past, through the separation of the moments of dogma from those of critique and of the initiators of one from the other, will provide the access that the New International seems to take for granted. An elaboration of this claim is, however, beyond the scope of this chapter.

Conclusion Rawls’ response to the challenge of economic fundamentalism was disappointing. He had, from the outset, declared indifference to the project of transformative politics and hence to Marx’s ideas on politics and society.101 The severe consequences of the neo-liberal onslaught had not yet unfolded while he was actively practicing his profession. However

26 JAYANT LELE the signals emanating from both Political Liberalism and Law of Peoples are, as we saw, somewhat menacing. Habermas’ response has been to recognise but dissociate the effects of neo-liberalism from the basic source of its re-emergence, that is, as the ideological underpinning of the onslaught of ruthless capitalist expansion necessitated by its crisis and its virulent global spread backed by the older capitalist states. The history of capitalism, its tendency to go through cycles of civility and barbarism, has also been deleted from his consideration. His faith that a constitutionally entrenched democratic cosmopolitanism is on the horizon and the return of the golden age of capitalism is only a matter of the return of the public will remains unshaken. It needs to be cultivated with patience through institutional changes that will replace parochial nationalism with a gradually expanded internationalism, for which the New Europe is to provide a model. It will, he hopes, also rein in the arbitrary decisionism of the American state. Capitalism will reform itself once the markets are tamed through rational, somewhat more egalitarian economic and social policies under pressure from assemblies of rational citizens both nationally and globally. Derrida’s vehement denunciation of the triumphant claims of the advocates of liberal democracy and capitalism in Spectres of Marx had raised hopes. They were rather quickly and summarily dashed, however, when visualising an organisation for counter-hegemonic political practice. The only real organisation that he was willing to signal with approval was the same as that of Habermas. He also endorsed and believed in the possibility of the states being able to tame the markets and to put neoliberalism on a leash. And he joined Habermas in a joint appeal for the creation of a New Europe and to reiterate the call for the ‘transformation of international law and its institutions, in particular the UN’.102 When we come to cultural fundamentalism, it is religion that preoccupies the minds of all three. Rawls turns, surprisingly, into a jingoist and endorses the American action plan for global security. For both Rawls and Habermas, the entry of religious and comprehensive beliefs is welcome where there is a possibility of such beliefs accommodating themselves to the secular public space dominated by ‘reasonable’ or ‘rational’ citizens. It reassures them both of the claims of liberal tolerance and abiding civility of Western formal constitutional democracies. In addition, for Habermas, their rhetorical and emotion–passion binding power could only strengthen the claims of openness, inclusiveness and durability of these democracies. Both assert a claim about the humanityencompassing universalism of World Religions without even thinking about the need to excavate the reasons or validate the truth-value of that claim.

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Derrida, as always sensitive and sceptical, was moved to examine the complex relationship between religion and politics together and in terms of their mutually reinforcing and contradictory manifestations, both historically and in our times. As a result, he is responsible for some promising (as well as some rather pessimistic) attempts, by some of those who took him seriously, to meet the challenges of our times. His own conclusions, as we saw, turn out to be rather disappointing. I have argued that his own early political context may well have shaped his deep suspicion of organisation and his over-protective preoccupation with spontaneity. The final question we are left with then is about the promising pedagogic initiative emerging from Derrida’s work. If the telos of tolerance is truth to be arrived at and implemented through dialogue and practical action, what is to be the nature and substance of that truth? We will be compounding the mistake repeated over and over again by the critics of ‘Marxist utopias’ if we were to treat the arrival of such a moment of truth with a sense of finality. Marx was forever insistent that every moment of arrival will also in that very instant turn into a moment of anticipation. The unceasing creative, reflexive, productive activity of socially embedded human beings, their social labour, will begin to produce consequences, with or without the awareness at this point, of its critical–transformative potential. The fruits of that labour will begin to bring every just established shared sense of truth into question. Therein lies, I believe, the secret of human modernity.

Acknowledgements I am grateful to Dr Mangesh Kulkarni for his insightful comments, patient insistence and careful correctives throughout the preparation of this chapter and to Drs Radhika Desai, Amod Lele, Nissim Mannathukaren and Rajendra Singh for their thoughtful critical comments. I am alone responsible for the various inadequacies that still remain.

Notes 1. Herbert Marcuse, ‘Repressive Tolerance’, in Herbert Marcuse, Robert Paul Wolff and Barrington Moore, Jr., A Critique of Pure Tolerance (Boston: Beacon Press, 1965). 2. The European Enlightenment has remained organically linked, in the Western intellectual culture, to ‘modernity’, perceived as uniquely European in origin and understood as

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3.

4.

5.

6.

a break with ‘tradition’, as the end of something old and the beginning of something radically new. It is believed to have later spread to the rest of the world with varied consequences. The complex links between the Enlightenment and capitalism and between the latter and thus conceived modernity are usually glossed over. This cultivated opacity in the Western understanding of the very idea of modernity has now become thoroughly globalised. See Jayant Lele, ‘By Faith Alone: History as a Weapon in the Politics of Hindutva’, JCAS Symposium Series 11 (Osaka: The Japan Center for Area Studies-National Museum of Ethnology, 2000), pp. 46–55. Ellen M. Wood disentangles the ‘Enlightenment project’ from ‘the culture of capitalism’. The country in which capitalism triumphed much before Western Europe was England. She points out that ‘while commentators will often talk about English influences on, or precursors of “the Enlightenment” (such as Bacon, Locke or Newton), there is in our scholarly conventions no “English Enlightenment”’. This is explainable by the fact of ‘the presence of capitalism in England and its absence elsewhere’. When the universalistic, egalitarian ideas of the Enlightenment came ‘within the orbit of capitalism’, the ‘English and Locke in particular were indeed pioneers in constructing a theoretical justification of inequality on a foundation of natural equality’. For details, see Ellen M. Wood, ‘Capitalism or Enlightenment?’, History of Political Thought, Vol. XXI, No. 3 (2000), p. 425. Barber refers, in a rhetorical flourish, to a ‘delicately dialectical relationship’ between liberty and equality, community and the individual, and between participatory and representative democracy. They maintain a precarious balance in liberal democracy. He does not see that the balance, already reduced to formal (political) equality and liberty, swings away from equality with cyclical turns and crises in the fortunes of capital. See Benjamin R. Barber, Strong Democracy: Participatory Politics for a New Age (Berkeley: University of California Press, 2004). Jameson observes, ‘For the liberal view is generally characterized by the belief that the “system” is not really total in that sense, that we can ameliorate it, reorganize it, and regulate it in such a way that it becomes tolerable and we thereby have the “best of both worlds”’. See Frederick Jameson, Postmodernism, or, the Cultural Logic of Late Capitalism (Durham: Duke University Press, 1999). The relationship between experience, an awareness of its contradictory nature and a sufficiently intense need or desire to overcome it, is not automatic. Where critical theory remains only at the level of ideology critique, it can be justly criticised, as by Rorty in Truth and Progress, or Habermas in Communication and The Evolution of Society. See Richard Rorty, Truth and Progress: Philosophical Papers, Vol. 3 (Cambridge: Cambridge University Press, 1999); Jürgen Habermas, Communication and the Evolution of Society (Boston: Beacon Press, 1979). Where parodying of contradictions has become a way of life, as among pacified citizens of affluent capitalist societies, mere immanent critique of the old paradigm is rather ineffective. Robert Lynd made the point in 1939. He gave us a list of the ‘wealth of contradictory assumptions’ that Americans have learnt to live with. It includes such gems as: ‘patriotism and public service are fine things, but a man has to look after himself’ or ‘the American judicial system ensures justice to every man, rich or poor but a man is a fool not to hire the best lawyer he can afford’, and, of course, ‘honesty is the best policy but business is business’. The task for theory is, therefore, to identify the likely moments of realisation of discrepancies, namely the recurring cycles of the crisis of capitalist production. See, Robert S. Lynd, Knowledge for What? (Princeton: Princeton University Press, 1939).

Relation between Theory and Practice for Our Times 29 7. Antonio Gramsci, Selections From The Prison Notebooks, (ed.), Q.G. Smith Hoare (New York: International Publishers, 1971). 8. This is most obvious in Marx’s critique of religion. While he was firm in his conclusion that religion as an institution must be transcended in practice, his idea of transcendence is to be understood dialectically. It sustains the kernel of truth that animates the inherent human urge to remember, trust and believe and yet goes beyond the institutionally entrenched ideological trappings in which organised religion encrusts it with dogmatic and exclusive interpretations. 9. Militant identity politics invoke the past through selective reinterpretation and rearrangement of historical narratives and texts and uses it for mobilising large numbers with the promise of a return to the glorious past, said to be full of virtues and values missing from the sordid sociopolitical order of the present times. The space is left wide open for such appropriation by a modernist tendency that dismisses tradition as an inert mass of past memories and nostalgia that obstructs the otherwise rational march of modernity towards greater material prosperity and even greater freedom, justice and equality for humankind. For details see, Jayant Lele, Hindutva: The Emergence of the Right (Madras: Earthworm Books, 1995); Jayant Lele, ‘Reflections on Dnyaneshwar’s Theory of Dialogue’, in M.I. Shima Naito and H. Kotani (eds), Marga: Ways of Liberation, Empowerment, and Social Change in Maharashtra (Delhi: Manohar, 2008). 10. Paul Ricoeur, Fallible Man (New York: Fordham University Press, 1986). 11. Paul Ricoeur, The Philosophy of Paul Ricoeur (Boston: Beacon Press, 1978). 12. Habermas sums it up as our ‘automatic inability not to learn’. See Jürgen Habermas, Legitimation Crisis (Boston: Beacon Press, 1975). 13. Despite all their other differences, the common feature of all three worlds during this period was the positive recognition of the role of the State as the monitor and the regulator if not the initiator and implementer of the strategies of rapid industrial growth. See G. Esping-Andersen, The Three Worlds of Welfare Capitalism (Princeton: Princeton University Press, 1990); Elmar Altvater, The Future of the Market: An Essay on the Regulation of Money and Nature after the Collapse of ‘Actually Existing Socialism’ (London: Verso, 1993); and Peter Worsley, The Three Worlds: Culture and World Development (Chicago: University of Chicago Press, 1984). 14. J. Beverly Silver and G. Arrighi, ‘Polanyi’s “Double Movement”: The Belle Époques of British and U.S. Hegemony’, Politics and Society, Vol. 31, No. 2 (2003), pp. 325–55. 15. Radhika Desai, ‘The Last Empire? From Nation-building Compulsion to Nation-wrecking Futility and Beyond’, Third World Quarterly, Vol. 28, No. 2 (2007), pp. 435–56. 16. Peter Glotz, ‘Forward to Europe’, Dissent, Vol. 33, No. 3 (1986), p. 329. 17. Philip S. Golub, ‘Imperial Politics, Imperial Will and the Crisis of US Hegemony’, Review of International Political Economy, Vol. 11, No. 4 (2004), pp. 763–86. 18. As Jameson puts forward that ‘the global restructuration of production and the introduction of radically new technologies—that have flung workers in archaic factories out of work, displaced new kinds of industry to unexpected parts of the world, and recruited work forces different from the traditional ones in a variety of features, from gender to skill and nationality—explain why so many people have been willing to think’ that classes have disappeared from the older capitalist countries. See Frederick Jameson, Postmodernism, or, the Cultural Logic of Late Capitalism, p. 319. 19. David Harvey, Spaces of Hope (Berkeley: University of California Press, 2000). 20. Frederick Jameson, ‘Globalization and Political Strategy’, New Left Review, Vol. 4 (July–Aug, 2000), pp. 49–68.

30 JAYANT LELE 21. Fear and anger that follow capitalist penetration which forces homogenisation of lifeworlds, uproots habitats and livelihoods and eliminates local ways of living and thinking, resulting in inchoate responses of localised resistance that are easily suppressed or ameliorated through temporary measures of rehabilitation or compensation. When these also fail, the new identity politics mobilise and deflect that anger on to targets other than the real ones. In the end, they too fail to create sustainable alternatives. 22. Crystal Bartolovich, ‘Post-imperialism or New Imperialism? The Eleventh September of George Bush, Fortress US and the Global Politics of Consumption’, Interventions, Vol. 5, No. 2 (2003), pp. 177–99. 23. Subhabrata Banerjee and S. Linstead, ‘Globalization, Multiculturalism and Other Fictions: Colonialism for the New Millennium?’, Organizations, Vol. 8, No. 4 (2001), pp. 683–722. 24. On the larger context of late capitalism, its crisis tendencies and the rise of identity politics, see Jameson, Postmodernism, or, the Cultural Logic of Late Capitalism; David Harvey, The Condition of Postmodernity (Oxford: Blackwell, 1990). On the complex relationship between the current crisis of capitalism, the Reagan recovery and the ‘deteriorated elements of the postmodern’, see Perry Anderson, The Origins of Postmodernity (London: Verso, 1998). 25. Giovanna Borradori, Philosophy in a Time of Terror: Dialogues with Jürgen Habermas and Jacques Derrida (Chicago: University of Chicago Press, 2003). 26. Martin Riesebrodt, ‘Fundamentalism and the Resurgence of Religion’, Neumen, Vol. 47, No. 3 (2000). 27. Ibid. 28. On the use of cultural fundamentalism by the State to bolster declining legitimacy under conditions of economic crisis, see Amod Lele, ‘State Hindutva and Singapore Confucianism as Responses to the Decline of the Welfare State’, Asian Studies Review, Vol. 28, No. 3 (2004), pp. 267–82. On cultural fundamentalism as the politics of ‘exclusion of the excluders by the excluded’, see Manuel Castells, The Power of Identity (Oxford: Blackwell, 1997). On the ‘new rhetorics of exclusion in Europe’ as cultural fundamentalism, see Verena Stolke, ‘New Rhetoric of Exclusion in Europe’, International Social Science Journal, Vol. 51, No. 159 (March 1999), pp. 25–35. 29. Jorge Nef and Wilder Robles, ‘Globalization, Neoliberalism, and the State of Underdevelopment in the New Periphery’, in Richard Harris and M.J. Said (ed.), Critical Perspectives on Globalization and Neoliberalism in the Developing Countries (Leiden: Brill, 2000), pp. 27–48. 30. On the history of Neoliberalism and its movement from the margins to the centre of economic dominance under the conditions of crisis, see David Harvey, A Brief History of Neoliberalism (Oxford: Oxford University Press, 2005); Michael A. Peters, Poststructuralism, Marxism, and Neoliberalism: Between Theory and Politics (Lanham MD: Rowman and Littlefield, 2001); Andrew Barry, Thomas Osborne and Nikolas Rose, Foucault and Political Reason: Liberalism, Neo-Liberalism, and Rationalities (Chicago: University of Chicago Press, 1996). 31. See, for example, Robert Wade, ‘Japan, the World Bank, and the Art of Paradigm Maintenance: The East Asian Miracle in Political Perspective’, New Left Review, Vol. I, No. 217, (May–June, 1996), pp. 3–36; also, Robert Wade, ‘Showdown at the World Bank’, New Left Review 7 (Jan–Feb 2001), pp. 124–37. 32. See, for instance, Steve Bruce, ‘Modernity and Fundamentalism: The New Christian Right in America’, The British Journal of Sociology, Vol. 41, No. 4 (1990), pp. 477–96;

Relation between Theory and Practice for Our Times 31

33. 34. 35. 36.

37.

38. 39.

40. 41.

42. 43. 44. 45.

Stephen Eric Bronner, ‘The New Right: Reflections on an International Phenomenon’, New Political Science, Vol. 12, No. 1 (1993), pp. 87–98; Anton K. Jacobs, ‘The New Right, Fundamentalism, and Nationalism in Postmodern America: A Marriage of Heat and Passion’, Social Compass, Vol. 53, No. 3 (2006), pp. 357–66. Frederick Jameson, The Cultures of Globalization (Durham: Duke University Press, 1998). Ibid. John G. Gunnell, Between philosophy and Politics: The Alienation of Political Theory (Massachusetts: University of Massachusetts Press, 1986). In his early outline for the moral theory of justice, Rawls used the medieval Inquisition as an example of ‘unreasonable’ decision procedure leading to unjust outcomes. His reference to the damned and to the ‘inquisition’ could not be read without summoning the horrors of McCarthy (‘damned communists’). See, John Rawls, ‘Outline of a Decision Procedure for Ethics’, The Philosophical Review, Vol. 60, No. 2 (1951), pp. 177–97. Despite Rawls’ studied abstinence from direct references to contemporary political practice in the United States, his admirers and critics were quick to note how it was reflected in his writings. Fishkin, for example, in his critique of the liberal approach to equality, coupled Lyndon Johnson’s ‘Great Society Speech’ as the most important policy initiative in modern American history with Rawls’ Theory of Justice as the most influential work of liberal political theory to appear recently in America. See James S. Fishkin, Justice, Equal Opportunity and the Family (New Haven and London: Yale University Press, 1983). Barry Clark, and H. Gintis, ‘Rawlsian Justice and Economic Systems’, Philosophy and Public Affairs, Vol. 7, No. 4 (1978), pp. 302–25. The seductive ambiguities of his principles of liberty and justice generated speculations even about his possible (and dangerous!) ‘socialist’ affinity. John Rawls, Theory of Justice (Cambridge: Harvard University Press, 1999). John Rawls, Political Liberalism (New York: Columbia University Press, 1993). Only recently noted by liberal scholars such as Martha Nussbaum and Jürgen Habermas, this idea did not prompt any of the three to investigate the possibility that perhaps world religions harbour in them a certain dialectic between fundamentalist assertions and critical revolts leading to re-evaluations and reinterpretations of dominant interpretations of texts (The Word), dogmatically asserted as universal and eternal. None of the liberals, including Habermas, have since then attempted to excavate such a possibility. This is understandable given their relative ignorance of the history of nonAbrahamic religions. Even then, a critical hermeneutic rethinking about Reformation would have alerted them to this possibility. Here I believe their misunderstanding of modernity stands in the way. Rawls, Political Liberalism, p. 49. His peoples closely resemble contemporary states, says Buchanan. Please see Allen Buchanan, ‘Rawls’ Law of Peoples: Rules for a Vanished Westphalian World’, Ethics, Vol. 110, No. 4 (July 2000), pp. 697–721. John Rawls, Law of Peoples (Cambridge: Harvard University Press, 1999b), p. 64. Ibid. William I. Robinson, ‘Pushing Polyarchy: The US–Cuba Case and the Third World’, Third World Quarterly, Vol. 16, No. 4 (1995), 643–60. Rawls, Law of Peoples.

32 JAYANT LELE 46. While Rawls’ liberal detractors want to uphold either agonism or communityembedded individualism against his contractarian constitutionalism, they still share his commitment to the liberal compromise that insists on limiting equality by hyphenating it as political equality. 47. It was also obvious to his sympathetic former students. See Thomas W. Pogge, Global Justice (Oxford: Blackwell Publishers, 2001); Charles R. Beitz, ‘Does Global Inequality Matter?’, Metaphilosophy, Vol. 32, Nos. 1 and 2 (2001), pp. 95–112. 48. Jeffrey Paris, ‘After Rawls’, Social Theory and Practice, Vol. 28, No. 4 (2002), pp. 697–98. 49. Reflecting the flexibility of the liberal spectrum is the fact that while Rawls is considered to be a ‘left liberal’ (even a hidden Marxist, by some) in America, in Europe he is seen only as a mainstream liberal. 50. The democratic State that actually emerged was a ‘bourgeois bloc’ that implemented the agenda of anticommunism, political Catholicism and economic liberalism under the leadership of the Christian Democratic Union. Its ideology was ‘ordo-liberalism,’ an equivalent of the American neo-conservatism that fed into the later neo-liberal ideology. A product of the Freiburg School, which inherited the ‘right’ dimension of Weber’s analysis of capitalism, it stood juxtaposed to his ‘left’ dimension, inherited by the Frankfurt School with which Habermas was initially associated. See Ronald Dore, W. Lazonick and M.O’Sullivan, ‘Varieties of Capitalism in the Twentieth Century’, Oxford Review of Economic Policy, Vol. 15, No. 4 (1999), pp. 102–20. On Foucault’s critique of the two schools, see Thomas Lemke, ‘“The Birth of Bio-politics”: Michel Foucault’s Lecture at the College de France on Neo-liberal Governmentality’, Economy and Society, Vol. 30, No. 2 (May 2001), pp. 190–207. 51. Jürgen Habermas, ‘A philosophico-political Profile’, New Left Review, 151 (May–June 1985), pp. 75–105. It is understandable, given that at the end of World War II, for the first time, as Anderson notes, ‘representative democracy based on universal suffrage as the normal and stable structure of the State’ was established in all major capitalist countries, a fact often forgotten by the students of Anglo-American democracy. Perry Anderson, Considerations on Western Marxism (London: NLB, 1976). 52. Even in Structural Transformation of the Public Sphere, Habermas treated Marx’s critique of the bourgeois public sphere—even though situated within his comprehensive critique of the capitalist mode of production—as a ‘socialist model’ comparable to and competing with the ‘liberal model’ of democracy. Both models proved incapable, he claims, of forestalling the transformation of the bourgeois public sphere that came with the gradual transition to organised capitalism. Since his ‘liberal turn’, references to the organic link between capitalism and democracy have become even more muted in Habermas’ writing on democracy. See Jürgen Habermas, The Structural Transformation of the Public Sphere: An Enquiry into a Category of Bourgeois Society (Cambridge: MIT Press, 1981) (first published in 1962). 53. Habermas, Communication and the Evolution of Society, pp. 95–177. 54. The relevant essays were translated and included in Habermas’ Communication and Evolution of Society. 55. In Legitimation Crisis, Habermas argued that although under liberal capitalism the loyalty of the subordinate classes was secured, not through these ideals but through their traditional ties, fatalism, ignorance and naked repression, bourgeois ideals still had integrative power as the ruling ideas. Under organised capitalism, the welfare state

Relation between Theory and Practice for Our Times 33

56. 57. 58.

59.

60. 61.

62. 63. 64. 65.

66. 67.

had already pacified the passions of the subordinate classes and hence the power of critique emanating from the domain of production had been thoroughly decimated. Jürgen Habermas, Communication and the Evolution of Society, pp. 96–97. Habermas, Legitimation Crisis, p. 56. Religious categories and concepts now occupy prime positions in the writings of political philosophers from Levinas to Taylor and many others in between. Most of such writing emerge from the ‘vicinity of Marx’ and may be ‘a part of a wider cultural commitment to renew, reinvoke, repossess Marxism as a revolutionary moral tradition in which conscience and judgment play a defining role’. It cannot be dismissed as a conservative reaction to modernisation. See John Roberts, ‘The Ethics of Conviction: Marxism, Ontology and Religion’, Radical Philosophy, No. 121 (2003), pp. 36–48. His faith in the virtues of ‘proper’ modernisation and its culmination in liberal democracy remained unshaken even after Bin Laden’s forces had just demolished the World Trade Center in New York. He admits of the ‘structural’ violence of ‘unconscionable social inequality, degrading discrimination, pauperization, and marginalization’ in the ‘peaceful and well-to-do societies’ of the West. The admission is buffered, however, because he claims, ‘the praxis of our daily living together rests on a solid base of common background convictions, self-evident cultural truths and reciprocal expectations’ and hence when conflicts erupt, it leads to ‘the breakdown in communication’ and lands ‘in court’ or ‘at the therapist’s office’. Jürgen Habermas, ‘Religion in the Public Sphere’, Lecture presented at the Holberg Prize Seminar, Bergen Norway, 29 November 2005. It has spawned more grist for the liberal academic paper mill, mostly critical of the inadequacy of Habermasian proposals, but without new insights into the real basis of the strength and resilience of religious traditions. See Maeve Cooke, ‘Salvaging and Secularizing the Semantic Contents of Religion: The Limitations of Habermas’s Postmetaphysical Proposal’, International Journal of Philosophy and Religion, Vol. 60, No. 1/3 (December 2006), pp. 187–207; Maeve Cooke, ‘A secular state for a postsecular society? Postmetaphysical political theory and the place of religion’, Constellations, Vol. 14, No. 2 (2007), pp. 224–38; Simone Chambers, ‘How religion speaks to the agnostic: Habermas on the persistent value of religion’, Constellations, Vol. 14, No. 2, (2007), pp. 210–23. Jürgen Habermas, The Past as Future (Lincoln NE: University of Nebraska Press, 1994), p. 20. Rawls’ supposition in Political Liberalism, p. 170. To the best of my knowledge, Habermas never returned to this idea in his subsequent attempts to accommodate religion in the public spheres of the Fortress West. See Lele, ‘Reflections on Dnyaneshwar’s Theory of Dialogue’. There have already been several highly publicised assemblies of globally recognised celebrities of World Religions which have produced declarations documenting an ecumenical consensus of the Rawlsian insight, not too dissimilar to the ‘Washington consensus’ on the neo-liberal political practice. It is precisely this kind of understanding of religion that would have to come under the critical eye of the kind of hermeneutic inquiry I am proposing. The debates on the relationship between spontaneity and organisation have taken a variety of forms (e.g. agency vs. structure, singularity vs. universality). Jacques Derrida, ‘Interviews: Jacques Derrida’, Diacritics, Vol. 3, No. 1 (1973), pp. 33–46.

34 JAYANT LELE 68. Jacques Derrida, Specters of Marx: The State of the Debt, the Work of Mourning and the New Internatinal (London: Routledge, 1994). 69. Ibid.: 81–84 70. Ibid.: 89 71. Ibid.: 65 72. Gayatri C Spivak, ‘Ghostwritings’, Diacritics, Vol. 25, No. 2, (1995), pp. 64–84. The adequacy of that critique, as it focuses on the distinction between commercial and industrial capitalism and a particular interpretation of the concept of use value, is not of concern here. Relevant is the fact that Derrida blissfully ignores the insights of the several critical political economists because of his aversion to ‘the other spirits’ of Marx and hence fails to connect effectively his 10 plagues to the crisis and the morbid symptoms, particularly the rise of economic fundamentalism. 73. Ibid.: 69. 74. It is the self-reflexivity of the critical tradition that Derrida has always claimed provides the bond between the spirit of Marx and deconstruction. 75. Following Bloch, one could demonstrate that guided by its wishes, needs and hopes, humankind produced moral–practical actions throughout its history. Traces of their memories, of their triumphs and failures, of celebrations and mourning are scattered in the histories of all human communities, congealed into rituals, rites, myths and fables that eventually become organised as religions. These tendencies, I suggest, are revealed in their profuse richness in the histories of those ancient societies that have retained their continuity into the present. See Ernst Bloch, The Principle of Hope, Vol. 1–3 (Cambridge: MIT Press, 1986). 76. Emile Benveniste, Indo-European Language and Society (London: Faber, 1973). 77. Jacques Derrida, ‘Faith and Knowledge’, in Jacques Derrida and G. Vattimo (eds), Religion (Stanford: Stanford University Press, 1998), pp. 1–77. 78. Jacques Derrida, Politics of Friendship (London: Verso, 2005). 79. Gayatri C. Spivak, ‘A Note on the New International’, Parallax, Vol. 7, No. 3, (2001), pp. 12–16. 80. John D. Caputo, ‘Who is Derrida’s Zarathustra? Of Fraternity, Friendship, and a Democracy to Come’, Research in Phenomenology, Vol. 29 (1999), 184–99. 81. Marx’s scattered references to religion and the tenor of some of his writings have been the subject of interpretation for decades. At first glance they may appear linear and evolutionary, but when placed within the context of the history of human communities over millennia, they reveal their evocative power (‘spiritual aroma’, ‘sigh of the oppressed creature’, ‘expression of real suffering’) that fuelled the creative meditations of thinkers such as Bloch and Benjamin. He treated all his writings as ‘work in progress’; this was particularly the case when he was dealing with pre-capitalist societies. See Karl Marx, The Ethnological Notebooks of Karl Marx (Assen: Van Gorcum, 1972); Lawrence Krader, ‘Still More on Marx, Engels, and Morgan’, Current Anthropology, Vol. 18, No. 2 (1977), pp. 109–20. Unlike Derrida, he was dealing with relatively meagre knowledge and quite primitive methodologies of research on these societies available at the time. See Alan Barnard (ed.), Hunter-gatherers in History, Archeology and Anthropology (Oxford: Berg Publishers, 2004). 82. Derrida, ‘Faith and Knowledge’, p. 38. 83. Anyone familiar with the history of the construction of the term Hindu as a name for religion that did not exist and the subsequent manufactured ethnicist fossilisation being attempted within it, will have no difficulty recognising the critical hermeneutic potential of this insight. See Lele, ‘By Faith Alone’.

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35

84. See, Jayant Lele, Tradition and Modernity in Bhakti Movements (Leiden: Brill Archive, 1981); Lele, ‘By Faith Alone’. 85. Habermas also relies on the structure of language to make claims about the primacy of the intersubjective over the subjective dimension of human condition. Neither he nor Derrida make the next necessary move, to link the structure of a speech act to the human condition as a totality and the creative tension of the subject in its relation to the objectivity of nature and the intersubjectivity of symbolic human interaction. 86. Spivak, ‘A Note on the New International’, p. 14. 87. Ibid. 88. Jayant Lele, ‘Hindutva as Pedagogic Violence’, in The Transformation of Knowledge in South Asia: Essays on Education, Religion, History and Politics (Delhi: Oxford University Press, 1996). 89. Gayatri C. Spivak, Death of a Discipline (New York: Columbia University Press, 2003). 90. Admittedly, Spivak’s Death of a Discipline is rich with examples of what such dialogues can be in an elite university classroom in the North. I am concerned here about the necessary prerequisites for such dialogues in the classrooms in the South. 91. Jameson, Postmodernism, or, the Cultural Logic of Late Capitalism, p. 29. 92. Spivak, ‘Ghostwritings’, p. 69. 93. McCormick, for example, draws this conclusion from The Forces of Law (1990): it encourages us to wait for justice, not by shirking responsibility or reveling in arbitrary violence but rather by living a life according to law. Derrida demonstrates that a world without violence is our most enlightened aspiration, if not an instrumentally attainable goal. But this insight encourages us to think about living according to law formulated and enforced in less violent ways.

94. 95. 96. 97.

98. 99.

100.

See John P. McCormick, ‘Derrida on Law; or, Poststructuralism Gets Serious’, Political Theory, Vol. 29, No. 3 (2001), pp. 395–423. Teubner echoes this sentiment and concludes that ‘whatever you decide in law will end in injustice and guilt’. See Gunther Teubner, ‘Economics of Gifts—Positivity of Justice: The Mutual Paranoia of Jacques Derrida and Niklas Luhmann’, Theory, Culture and Society, Vol. 18, No. 1 (2001), pp. 29–47. Borradori, Philosophy in a Time of Terror, p. 127. Ibid.: 128. Ibid.: 113. Anticipating such criticism of the tolerance of the mighty, Habermas refers us to the constitutional State that relies on a formal, democratically derived, consensus and not paternalism (a consensus, between those who are materially unequal in resources and capabilities and therefore, one might say, between a lion and a lamb, but still a consensus!). See Giovanna Borradori, Philosophy in a Time of Terror. Jürgen Habermas, Theory and Practice (London: Heinemann, 1974), p. 243. Spivak does invoke religion with reference to the Devi movement, at ‘the ancient and indigenous level’ and to the reference to ‘the extra potency’ gained by rebellion of the hill people from the worship of deities that were all ‘man-eating goddesses’ and she goes on to conclude that ‘in the current Indian context neither religion nor femininity show emergent potential of this kind’ without asking the question why. For details, see Gayatri Spivak, ‘Subaltern Studies: Deconstructing Historiography’ in Ranajit Guha and Gayatri Spivak (eds), Selected Subaltern Studies (Delhi: Oxford University Press, 1988), p. 26. Jürgen Habermas, Theory and Practice, p. 27.

36 JAYANT LELE 101. In a reply to the economist Musgrave, Rawls observed: Marx seems to have thought that this precept [each according to his abilities, to each according to his needs], would apply only when the circumstances of justice are surpassed; for it belongs to a fully developed socialist society when work itself is life’s principal need [das erste Lebensbedurfnis] and the limitations of moderate scarcity no longer hold. Thus, in a sense, it is not a precept of justice but one for a society beyond justice. Rawls thus denied its relevance for his US centred ‘realistic utopia’. See John Rawls, ‘Reply to Alexander and Musgrave’, The Quarterly Journal of Economics, Vol. 88, No. 4 (1974), pp. 633–55. 102. Jürgen Habermas and Jacques Derrida, ‘February 15, or What Binds Europeans Together: A Plea for a Common Foreign Policy, Beginning in the Core of Europe’, Constellations, Vol. 10, No. 3. (2003), pp. 291.

2 Politics of Globalisation: Theoretical Debates Rohini Hensman

Introduction This chapter defines globalisation, distinguishing it from the related concepts of imperialism and neo-liberalism, and explores the impact it has had on national sovereignty, popular movements of resistance and emancipation, militarism and citizenship.

Defining Globalisation Globalisation has become a buzz-word, yet there are widely differing conceptions of what it means. Part of the problem is that those who use the word seldom bother to define it. Prima facie, it would appear that a globalised world is one in which there are no barriers—other than purely natural and technological ones—to the movement of people, products, money and ideas around the world. But, globalisation in this very general sense pre-dates capitalism and the formation of nation-states. Clearly, this is not the subject of current debates about globalisation, although it is not irrelevant to them. It is presumably in order to clarify this point that the anti-globalisation movement uses various adjectives to qualify ‘globalisation’, such as ‘capitalist’, ‘imperialist’ and ‘neo-liberal’. However, this creates new problems, because these adjectives have their

38 ROHINI HENSMAN own meanings. When they are combined with ‘globalisation’, where do these meanings end and where does the meaning of globalisation begin? That capitalism is inherently global is taken for granted by Marxism. In the graphic words of The Communist Manifesto, ‘The need of a constantly expanding market for its products chases the bourgeoisie over the whole surface of the globe. It must nestle everywhere, settle everywhere, establish connections everywhere.’1 Moreover, the very survival of capitalism depends on its extraction of more value (surplus value) from wage workers than they are paid in the form of wages; thus exploitation of workers is part of the definition of capital. The expropriation of petty producers, ruin of small capitalists and job losses—all seen as characteristics of globalisation by its critics—are inherent in capitalism.2 The overlap between globalisation and capitalism seems to be complete. However, the danger of opposing globalisation because it is identified with capitalism is the implication that the real enemy is international capitalism, while domestic capitalists and small producers are allies who should be protected against it. This has been the standpoint of fascist movements, going back to Hitler’s denunciations of international capital in Mein Kampf.3 In India, this is the position taken by the Hindu nationalist Sangh Parivar, which has on various occasions protested against foreign investment, India’s accession to the World Trade Organization (WTO) and more generally, liberalisation and globalisation.4 At best, such a conception propagates the illusion that capitalism can solve problems of poverty and unemployment so long as it remains national. At worst, it condones and supports barbaric oppression and exploitation by indigenous capitalists. Globalisation may be a phase of capitalism, but anti-globalisation can never be anti-capitalist, because genuine opposition to capitalist oppression and exploitation does not distinguish between ‘national’ and ‘international’ capital, nor support the former against the latter. Capitalist imperialism is characterised by State-backing for capitalist expansion; this could mean overt colonisation, covert operations to install ‘friendly’ governments in power or other activities aimed at extending the military or political power of the State beyond its borders. At home, the imperialist State engages in protectionism, and contains class struggle either by extending welfare benefits to the working class, or by whipping up war fever and hatred of an external enemy. Globalisation, on the contrary, is marked by the emergence of advanced sectors of capital, both productive and financial, which rely on porous rather than impervious national borders, and do not need backing from a nation-state. This is not a matter of size—some of the biggest corporations in the world depend on

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support from the State, while much smaller firms may be linked into global networks which are not dependent on any nation-state.5 The rapid spread of outsourcing—of manufacturing as well as services—is one form in which such networks have developed, and this highlights another defining characteristic of globalisation—its dependence on new Information and Communication Technologies (ICT). Finally, some of the former colonies have emerged as powerful players under globalisation. Both imperialism and globalisation result in global capitalist accumulation, but the mechanisms by which this is achieved are very different. Globalisation is different from imperialism; indeed, ‘imperialist globalisation’ is a contradiction in terms. There is also an overlap between neo-liberalism and globalisation, since both are concerned with removing barriers to the movement of goods and capital across national borders. But neo-liberal policies also include privatisation of public services, slashing government spending on social security and welfare and ‘deregulation’, a policy which in fact benefits the stronger party—capital—at the cost of the weaker one— labour.6 These are not necessarily part of globalisation, although they are not incompatible with it. The distinction can perhaps be exemplified by the difference between the Bretton Woods institutions—the International Monetary Fund (IMF) and the World Bank created in 1944—on one side, and the WTO, created in 1995, on the other. The former, which are headquartered in Washington—hence the description of their economic stabilisation and structural adjustment programmes as the ‘Washington consensus’—have an inbuilt dominance of rich countries over policymaking, while the latter, which is headquartered in Geneva, is a onecountry–one-vote institution. Although always lumped together by anti-globalisers, their foundation is separated by more than half a century, and they operate in very different ways. IMF and World Bank policies imposed on Third World countries, against which there is no appeal, have usually resulted in economic decline and stagnation, leading to spectacular crises in some instances.7 By contrast, Third World countries can, by engaging in collective bargaining, influence policy-making at the WTO in a way that is impossible in the IMF and World Bank. The WTO is the only global institution where the US has been taken on and defeated repeatedly. Its first major ruling upheld a complaint made by Venezuela and Brazil that US petrol norms discriminated against imports, and inspired this comment, ‘The World Trade Organisation has teeth. And it is willing to use them, even against the mighty United States….The WTO corrects some of the power imbalance

40 ROHINI HENSMAN between the rich and poor countries that existed under GATT [General Agreement on Tariffs and Trade].’8 Subsequently, the US was hauled up repeatedly for violating WTO rules, losing case after case.9 Moreover, the remit of the WTO is not deregulation as such, but shifting regulation of trade and investment from the national to the global level. It is therefore possible for labour to influence its policies if a concerted effort is made to do so. This has not happened yet, thanks to divisions in the labour movement globally, but it can be done. The campaign against a patent regime protecting the monopoly of big pharmaceutical companies over the production of life-saving drugs showed that it is possible for oppressed groups to challenge powerful multinationals if they organise themselves effectively.10 I would therefore define globalisation as an emerging phase of capitalism, marked by (a) a capitalist world economy covering more or less the whole globe; (b) large-scale decolonisation and the emergence of some Third World countries as powerful players in the world economy; (c) a changing relation between capital and the State such that the most advanced capitals do not need protection and support from a nation-state, but instead need porous national borders and global regulation; (d) the emergence of ICT, both as a new and increasingly dominant branch of production in itself, and as a factor affecting manufacturing, services and finance, and (e) the emergence and increasing importance of new institutional investors, including pension funds, whose assets amounted to 57.1 per cent of Gross Domestic Product (GDP) in the US and over 87 per cent of GDP in The Netherlands at the end of 1995,11 a form of finance capital, consisting of the capitalised savings of wage earners, that Lenin and Hilferding could never have envisaged.12 The WTO is not the only institution of global regulation and governance. There are numerous United Nations (UN) organisations that perform a similar function, although they are much weaker. The International Labour Organization (ILO), founded in 1919 to promote social justice and internationally recognised labour rights, became the first specialised agency of the UN in 1946, and the International Labour Code of the ILO is a large and growing document. The Convention on the Elimination of all forms of Discrimination against Women (CEDAW) 1979, is often described as an international bill of rights for women. The most revolutionary development, perhaps, was the establishment of the International Criminal Court (ICC), which came into force in June 2002, with the mandate to prosecute perpetrators of four core crimes—war crimes, crimes against humanity, genocide and aggression.

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Implications for Sovereignty Perhaps the most obvious effect of globalisation is to undermine national sovereignty. Policy decisions that were previously made by national states are now passed on to global institutions, which can interfere with national policies if these conflict with global regulations. The anti-globalisation movement sees this as a loss of democracy, but is it really so? First and foremost, what is called ‘national sovereignty’ is really State sovereignty. In the constitution of a nation-state, ‘a two-fold process of interaction is at work: “internally” with regard to society and “externally” with regard to other states and actors’.13 Conventionally, sovereignty is seen as the authority of the State over what occurs within its territorial space—its ‘entitlement to rule’14—and recognition of this authority in its external interaction with other states. Internationally, the system has never been able to prevent large-scale violence, despite the adoption of the Geneva Conventions to regulate the conduct of nations during war. The horrific carnage of World War II, including the slaughter of hundreds of thousands of civilians by the nuclear bombs dropped on Hiroshima and Nagasaki, and conventional bombing elsewhere, led to the foundation in 1945 of the UN, whose foremost purpose, as proclaimed in its Charter, was ‘to save succeeding generations from the scourge of war’, and for this purpose ‘to unite our strength to maintain international peace and security’. This could be seen as a pooling of sovereignty in order to regulate relations between sovereign states so as to prevent violent conflict between them, thus modifying the ‘external’ dimension of sovereignty. These ‘international…institutions have both linked sovereign states together and transformed sovereignty into the shared exercise of power. A body of…international law has developed which underpins an emerging system of global governance’.15 The horror of the Nazi Holocaust created a crisis for the ‘internal’ dimension of sovereignty too, leading to the Nuremburg trials which questioned the authority of a State to do as it pleased within its territorial space. The adoption of the Genocide Convention by the UN on 9 December 1948, and the Universal Declaration of Human Rights the following day, articulated the belief that the most basic rights of human beings cannot be different in different countries but have to be common for all peoples, and therefore the internal authority of a State could be questioned if it violated these rights. In subsequent decades, the UN would pass many covenants and conventions applying to the world as a whole; for example, in 1966 two covenants codifying the rights in the Universal Declaration

42 ROHINI HENSMAN were adopted by the General Assembly—the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. However, the operation of international law has thus far been fairly arbitrary, with powerful states being able to violate it with impunity. The establishment of the ICC, whose scope encompasses both the internal and external dimensions of sovereignty, has the potential to change this situation, at least for the core crimes covered by it, but this process still has a long way to go. As the example of the Holocaust and other cases of internal genocide demonstrate, the loss of State sovereignty is not necessarily a loss of democracy; indeed, it could be the opposite. Anti-globalisers subscribe to the implicit assumption that the smaller the unit, the greater the potential for democracy, but this is not supported by experience. As advocates of women’s and children’s rights have known for a long time, the smallest unit in society—the family—can be the least democratic, with weaker members sometimes being imprisoned, tortured or killed in their own home. In such cases, the intervention of the broader community is necessary in order to protect human and democratic rights. By analogy, a global community governed by democratic norms can justifiably intervene to protect human and democratic rights that are being violated by a national State. It is significant that the BJP government complained of infringement on its sovereignty when questioned by other governments about the Gujarat genocide in 2002, and the Bush administration objected to the monitoring regimes of the Comprehensive Nuclear Test-Ban Treaty (CTBT) and Chemical and Biological Weapons Conventions, on the grounds that they infringed on its sovereignty. Here ‘sovereignty’ is implicitly defined as the right of a State to commit genocide or develop weapons of mass destruction. Those who argue for a defence of sovereignty would contend that theirs is a more democratic conception, which equates sovereignty with the rule of the people. However Negri and Hardt point out that, Democracy…can be conceived as the rule of the many or all, but only insofar as they are unified as ‘the people’ or some such single subject. It should be clear, however, that this mandate of political thought that only the one can rule undermines and negates the concept of democracy.16

The population of a country is marked by diversity, and can never be a single subject; it is only by stifling or crushing the aspirations of some that others can project themselves as the representatives of all. If this argument

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is accepted, then sovereignty is not only not the same as democracy, but is incompatible with democracy. It is undeniable that national sovereignty and globalisation stand in contradiction to each other, and if sovereignty is seen as the prime principle of governance, globalisation is an enemy to be opposed. But if we move from sovereignty to democracy as the prime principle of governance, then there is no contradiction between the national and global. For example, fighting for women’s rights to equality and freedom from violence at an international level through CEDAW and the ICC can only reinforce, never undermine, the struggle for women’s rights in any particular country. Nor can the winning of women’s rights to equality and freedom from violence in one country ever undermine women’s rights in another part of the world or the world as a whole. On the contrary, democracy at a global level complements democracy at a national level, and vice versa; neither is completely effective without the other. This has significant implications for all struggles for democracy, above all the struggle for workers’ rights.

Popular Mobilisation, Resistance and Emancipation Globalisation has also had a profound impact on popular movements of resistance and emancipation. It is fairly obvious that where policies affecting most countries of the world are made at an international level, attempting to influence or resist them at a purely national level will not be very effective; for example, the policies of the WTO, although decided by governments collectively, impose themselves on each State as an external pressure. It is less obvious but equally true that in an interconnected world, decisions and events in one country can influence what happens in others; thus low labour standards and attacks on workers’ rights in one country can, through relocation of production to it and cheap imports from it, lead to unemployment and pressure to depress labour standards in other countries—the so-called ‘race to the bottom’.17 There have been two opposite reactions to this dilemma, conflated by uninformed media persons as ‘the anti-globalisation movement’. One reaction is genuinely opposed to globalisation, seeking to go back to a world of sovereign states which have complete control over what goes on inside their territory as well as the way they relate to others. This can

44 ROHINI HENSMAN be characterised as a reactionary response in two senses—first, in the purely descriptive sense that it tries to roll back the wheel of history, as The Communist Manifesto puts it,18 going back to an earlier phase of capitalist development; and second, in the sense that it offers support to appeals for sovereignty made by oppressive states, including, ironically, the imperialist State in the US. The second reaction seeks to impose democratic norms on the emerging world system, both in terms of the way that states behave within the territory they govern, and in terms of the way that they interact with each other. These two opposite reactions can clearly be distinguished at occasions and in movements that are inaccurately characterised as ‘antiglobalisation’. The demonstrations outside the WTO meeting at Seattle in 1999 are a good example. Some demonstrators demanded that the WTO be scrapped, and this demand is still being made, despite the fact that it is very clear that the alternative—bilateral or regional trade agreements where the stronger or strongest party can impose its will on weaker ones—is much worse for Third World countries. This is why, for example, the Hugo Chavez government in Venezuela opposed the Free Trade Area of the Americas (FTAA) tooth and nail, but engaged critically with the WTO process, putting forward proposals that would democratise the way it functioned by ensuring greater equality between developed and developing countries. Similarly, many trade unions and labour activists demonstrating in Seattle proposed a workers’ rights clause in WTO agreements that would protect the basic human rights of workers in all member states—a measure that, if crafted carefully, would democratise the WTO in a different way by ensuring that its policies did not undermine the human rights of workers.19 The World Social Forum, started as a counterpoint to the World Economic Forum, also displays these opposite reactions to globalisation, which were evident in the banners put up when it was held in Mumbai. While many of the slogans were the usual anti-globalisation ones, there were others which, on the contrary, were calls for globalisation, like ‘Globalise Justice’ by the campaign for the ICC, ‘Globalise Human Rights’ by Amnesty International and ‘Globalise Workers’ Rights’ by labour activists. It is my view that the latter response is the more appropriate and effective one. If, as I believe, globalisation is a new and more advanced stage of capitalism, then the most that opposition can do is to delay it—and that, too, at the cost of supporting the most oppressive features of the old order and ignoring the potential for strengthening emancipatory

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movements in the new one. One consequence of globalisation has been the worldwide expansion of the proletariat, which has occurred much faster in the Third World, with more women than men joining the labour force. At the same time, there has been a convergence in conditions of employment, which came out very clearly in the project I was working on with Women Working Worldwide, an organisation involved with women workers in several countries. For example, we produced an educational booklet on Codes of Conduct, which was translated into various local languages. One of the examples was from a factory in El Salvador which was supplying garments to Gap—a major US retailer—where the workers, mainly women, responded to oppressive conditions by forming a union. The employer retaliated by dismissing those involved; this was followed by an international campaign in support of the workers, as a result of which a Code of Conduct guaranteeing basic workers’ rights was introduced. The dismissed workers were reinstated and the union was recognised.20 Women workers from the Free Trade Zones in Sri Lanka—some of them also working for companies supplying Gap—read this story out loud in a workshop, and when asked what they had learned about codes, one woman said, in awe and wonder, ‘They too had problems getting permission to go to the toilet!’ Another added, ‘And they too were forced to do compulsory overtime.’ A third commented, ‘They were thrown out for forming a union, just as we were!’ There was an immediate sense of identification with women workers on the opposite side of the globe. In another example, women garment workers in Mumbai doing outwork for a factory called Patel Hosiery received an appeal for information from UNITE (Union of Needletrades, Industrial and Textile Employees), the union organising garment workers in the US. Workers in Brylane, a mail-order firm supplied by Patel Hosiery, were facing stiff opposition to their attempts to form a union, and were trying to collect information from suppliers around the world, so as to put pressure on the parent firm to recognise their union. They sent us details of the health and safety hazards that the American workers, most of them women, were suffering, and my colleague Chanda Korgaokar translated these into Marathi for the women in Bombay, who listened with sympathy and readily agreed to supply information about their own abysmal employment conditions. When the union was finally established, UNITE wrote to thank all those who had helped them, and when Chanda translated this letter, some of the women broke into spontaneous applause, thrilled that they had helped workers in a distant country to organise, even though they themselves got nothing out of it.

46 ROHINI HENSMAN The potential for this kind of identification, which I found very moving, has been created by globalisation. Along with the expansion of the proletariat, whom Marx and Engels saw as the ‘grave-diggers’21 of capitalism, the convergence of employment conditions in different countries, with its potential for leading to solidarity and common strategies, would have been seen as a positive development by classical Marxism. If capital is inherently global, its grave-diggers too have to be global. The world has always been and will always be one, as the urgent issue of climate change demonstrates. For instance, there is no way that the effect of carbon emissions from one country can be confined to that country, no matter how impermeable national boundaries may be. Nationalist ideology treats the nation-state as a timeless and ahistorical category, whereas in actuality it arose at a certain point in history, and will also become obsolete at some point. The latter point may still be far in the future, but the world is moving towards it at a slow but steady pace. The more integrated the world is, the more necessary it becomes to tackle the problems that face humankind together. Fortunately, globalisation has provided tools that make it more possible than ever before to do so. The new ICTs can be used to convey information rapidly across national borders, to publicise problems and struggles on the Internet, and to debate and coordinate action. An important example is the debate over child labour, which not so long ago was so much taken for granted in India that many people who would have claimed to be progressive employed children to work in their homes. A dialectical process whereby publicity for the campaigns of child rights activists in India highlighted child labour as a global issue, which in turn reacted back to put pressure on the State in India to do something about the problem, has at least compelled acknowledgement of the issue and some attempts to address it.

Globalisation and Militarism Globalisation results in a radical change in the relationship between militarism and capitalism. Militarism played a positive role for capital during its imperialist phase, enabling it to expand geographically and accumulate rapidly. The destruction caused by war, like that caused by crises, could re-establish conditions for accumulation, although at the cost of the certainty that some capitals would perish. Luxemburg and other Marxists also suggested that the market for military production assured by

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the State could temporarily serve to boost employment, thus smoothing over business cycles.22 Initially, there were also ‘spin-offs’ from Research & Development (R&D) in military production to civilian production, leading to major innovations which increased overall productivity, such as the use of computers.23 And in an epoch when capital depended heavily on the State to secure or expand national borders, military spending could be seen as an asset even in Third World countries like India. Yet, there were inherent problems in militarism that came to the fore as imperialism matured. The channelling of taxes into military spending occurred at the expense of State expenditure on infrastructure, which is necessary for the smooth functioning of capital, and on the social sector—education, health and social welfare—which is necessary for the smooth reproduction of labour power. The consequences were especially dire in Third World countries, but were not confined to it. As a placard held up in demonstrations against the nuclear tests in India and Pakistan in 1998 commented sarcastically: ‘NO FOOD, NO WATER, NO JOBS, NO PROBLEM: WE HAVE THE BOMB!’ Ten million dollars spent every day by India and Pakistan in patrolling the icy wastes of the Siachen glacier, where more soldiers died of exposure than in combat, would have gone a long way towards assuring food, water, health care and education to the people of these countries.24 And millions of US refugees left stranded in the wake of Hurricane Katrina in 2005, forced to depend on aid from other countries including much poorer ones, demonstrated that even in the richest country in the world, the government could not endlessly transfer funding from infrastructure and the social sector to military expenditure without having a disastrous impact on social reproduction.25 As military production became more high-tech and specialised, the spin-offs declined,26 and in the US, R&D in the military sector starved civilian R&D. Moreover, the ‘cost-plus’ pricing formula of industries producing for the military meant that there was no incentive to improve productivity, which therefore fell behind productivity in countries with less military spending. Seymour Melman has argued that the massively larger military spending by the US, in comparison with Germany and Japan, resulted in its lagging far behind these two countries in terms of productivity.27 As in the USSR at an earlier stage, militarism in the US became a drag on the economy. The result was enormous fiscal deficits that would have wrecked any other country’s economy. The only reason why they did not, was that US financial dominance of the world economy, underpinned by the role of the US dollar as the only world currency, ensured an equally huge inflow

48 ROHINI HENSMAN of capital to offset the deficits.28 However, this system came under threat when the creation of the euro offered a potential alternative to the dollar as a world currency. Many countries, including China and Japan which had the most massive dollar reserves, started diversifying their foreign exchange assets.29 In a significant move, George Soros pulled his assets out of dollars, and many US investors followed suit.30 This does not mean that the dollar is liable to crash in the near future, since countries which have large dollar reserves and rely heavily on the US market will no doubt continue to prop it up. Yet, in the long run, it means that the US economy is doomed unless the government changes its policy of military over-spending and tax cuts for the rich. In a globalised world, military power no longer ensures economic dominance. For the first time under capitalism, globalisation makes it possible to dispense with militarism. With capitalism encompassing the whole earth geographically, there is no necessity to spread it by using guns, bombs and missiles; and with capitals depending on porous rather than impervious borders for their expansion, productivity rather than backing by the military might of a particular nation-state ensures victory in the competitive struggle. It does not follow that militarism will decline automatically, since the military–industrial complex is enormously strong, and would resist any diminution of its power. But the possibilities of successful opposition to militarism and war—for example, between India and Pakistan— would be enhanced considerably by the fact that for many capitalists too, militarism plays a negative role. Again, ICT can be and has been used by repressive states, including that of the US, to crush opposition through tighter surveillance. But it can also be used for the opposite purpose. ICT provides a means for debating issues in the anti-war movement as well as publicising and coordinating activities across national borders. It has enabled a worldwide anti-war movement to be organised far more rapidly after the occupation of Iraq than was possible in the case of the war on Vietnam. Moreover, globally coordinated demonstrations against the war have been organised using the Internet—something that never took place during the long years of the anti-Vietnam-war movement. Thus globalisation provides new resources for the struggle against militarism and war. Marxists like Lenin and Luxemburg would have welcomed them because in their time communists were unambiguously internationalist in their politics. Feminists too opposed nationalist wars, which destroyed in an instant the years of labour and love women had put into rearing their children. Clara Zetkin, founder of International Women’s Day and foremother of socialist feminism, ended her speech at a conference

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of the Socialist International in 1912 by declaring ‘war on war’ (Krieg dem Krieg), and in another speech said that ‘When the men kill, it is up to us women to fight for the preservation of life. When the men are silent, it is our duty to raise our voices in behalf of our ideals.’ In 1915, she helped to organise the International Women’s Peace Conference in Switzerland, attended by around 1,300 women from countries at war with each other as well as neutral ones. The conference set up the Women’s International League for Peace and Freedom (WILPF), the oldest peace organisation still in existence, which stands for total and universal disarmament.31 However, the strand of nationalism in the socialist movement that led to the split in the Second International at the time of World War I grew much stronger subsequently, not only in the imperialist countries but also in the emerging Third World nations. Nationalism must be distinguished from national liberation movements. Many distinct elements go into the making of a national liberation movement. For the majority of participants it simply expresses a desire for freedom from foreign rule and oppression, but it also usually includes an elite striving to gain control of political power which it can wield over the others. Nationalism is an expression of this struggle for power. This dual character of national liberation movements accounts for the tragic anomaly of what took place in India at the time of Independence—freedom from British rule as a result of a popular liberation struggle, but at the same time the enormous violence of Partition, the direct result of a clash of nationalisms. Nationalism is also different from love of one’s country. Tagore, who made no secret of his love for his country, was savagely critical of nationalism, writing that ‘the nation has thriven long upon mutilated humanity’.32 One can love one’s country in the same way that we love our home, neighbourhood, city, town or village, because we have grown up in it or have lived in it for a long time, are familiar with it, and associate it with loved ones and pleasant memories. This does not imply any commitment to supporting the State; on the contrary, love of one’s country can in some circumstances—for example, under a repressive or genocidal government—lead to opposition to the State. Nationalism, by contrast, demands allegiance to the State or would-be State which claims to speak and act in the name of the ‘nation’, and is obsessed with the definition of a national identity. But ‘[t]he construction of a national self has always been only vis-à-vis “the other”,’ hence ‘a nation can be defined as an unending process of othering’.33 The process of othering—on the grounds of gender, race, ethnicity, religion, caste, sexual orientation, nationality, and so on and so forth— has always preceded, and been used to justify, the use of lethal violence

50 ROHINI HENSMAN against those who are defined as ‘the other’. This is why nationalism always contains the seeds of war. Perhaps the most reactionary aspect of the nationalist opposition to globalisation is that its advocates lack the imagination to conceive of a world in which, in John Lennon’s words, there is ‘nothing to kill or die for’,34 and consequently espouse an ideology which provides justification for the horrific violence of militarism and war.

Globalisation and Citizenship Globalisation poses a challenge to the traditional notion of citizenship, which defines rights only in relation to the nation-state. In principle, globalisation should mean the permeability of national borders to the movement of people, but immigration barriers have been taken down only in a few instances, as within the European Union (EU) for EU citizens. Elsewhere, they remain as strong as ever, and in some cases are stronger than they were before. Thus a large proportion of the millions of migrant workers who seek employment outside their own country comprise the ‘undocumented’, or ‘illegal aliens’—in the US alone, this category numbered 12 million in early 2006.35 For migrants, the traditional notion of ‘citizenship as an idea and as an institution is not always emancipatory. In fact, it often works to exclude people from the enjoyment of rights and recognition’.36 The assumption that only citizens have a right to rights means that migrants can be treated as ‘aliens’ and deprived of basic human rights, including labour rights; ‘oppositions between citizens and aliens pose obstacles for migrants’ claims to rights based on universal personhood, even within a State that formally supports international human rights norms’.37 There have been two types of proposals for dealing with the exclusion of non-citizens and denial of their human rights. ‘One political and scholarly response to migration’s challenges to the administration of rights has been to turn to international law to establish and protect a more equal and universal basis for rights than membership of the territorial nation-state’; this includes the enactment by the ILO and UN of conventions protecting the rights of migrant workers and their families.38 One way of achieving a more equal and universal basis for rights is to make it mandatory that ‘rights and recognition should be based on an individual’s personhood or her social participation, rather than on citizenship’.39 Alternatively, according to the cosmopolitan outlook, the

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locus of citizenship—which was originally attached to the city, not the nation-state—would be displaced once more, from the national to the global level, to make us all ‘citizens of the world’.40 Another response has been the proposal to abolish immigration controls. Contradicting fears that this would lead to a flood of Third World immigrants pouring into Europe and North America, it has been pointed out that before immigration controls for Commonwealth citizens were imposed in Britain, the tendency was for single young people to come, work for a while, and then return home, possibly to be replaced by another family member; whereas afterwards, the majority of immigrants were dependants coming to join working people, since there was no other way to ensure both family reunion and access to a job.41 Similarly, immigration controls imposed on Mexicans coming to work in the US converted temporary migrants into longer-term settlers.42 Both these suggested changes would undermine the nation-state— the first by replacing national citizenship rights with universal human rights or global citizenship, the second by making national borders even more porous—and therefore could be seen as pushing forward the agenda of globalisation.

Globalisation and Politics The politics of globalisation are polarised sharply, but not on a simple axis between support and opposition. It is more like a three-way split, between those who support a neo-liberal vision of globalisation, those who oppose it with an economic nationalist agenda, and those who seek to impose values of justice, equity and democracy on the new global order. Paradoxically, the first two camps, seemingly opposed to each other, often concur in their views. Both, for example, think it is inevitable that globalisation results in an attack on workers’ rights, and both are uneasy about the investment of pension funds in financial markets.43 If these two are seen as the only options, the choice becomes an impossible one for those involved in emancipatory movements. The neo-liberals support measures that inevitably result in impoverishment and weakened rights for the mass of working people. But the economic nationalists, concentrating all their fire on globalisation, refuse to confront the enemies under their noses, like informal labour, child labour or caste and gender oppression, all of which existed long before globalisation. Even when

52 ROHINI HENSMAN enemies like imperialism and neo-liberalism are correctly identified, the fact that they are incorrectly assumed to be inseparable from globalisation prevents a viable strategy for fighting them from emerging. Nationalism acts as an obstacle to solidarity and coordinated resistance to oppression, and provides a justification for militarism and war. The assumption that globalisation is in itself evil blinds nationalists to the possible advantages that might flow from it. It is only the third option that can lead to any progress, although the advantages that might flow from globalisation would have to be fought for, and would not be won easily. Implementing such a programme would require building solidarity at all levels, from the local to the global, and a thoroughgoing debate on aims and strategies, with enough translation to enable people from different linguistic communities to communicate with one another. Fortunately, globalisation has provided some of the tools for carrying out this enormous task.

Conclusion We have seen that the greater permeability of national borders resulting from globalisation has resulted in profound political changes. In more and more areas, national sovereignty is being replaced by the pooling of sovereignty in international institutions, and this demands a shift from sovereignty to democracy as the prime principle of governance at all levels—local, national and global. A parallel shift occurs in the notion of citizenship, which now needs to be displaced from the national to the global level, just as at an earlier stage it shifted from the city to the nation. These changes have a negative impact on the effectiveness of many popular movements of resistance and emancipation so long as they remain wedded to notions of national sovereignty and national citizenship. But if they are able and willing to espouse a global vision, it becomes evident that globalisation provides them with new tools that make the new tasks manageable, in the form of ICTs. Movements for disarmament and peace have the most to gain from globalisation, because it makes militarism a liability for capital rather than an asset. What is required, then, is that an emancipatory vision of globalisation should be counterposed both to the dominant neo-liberal vision of globalisation, and to reactionary notions of national sovereignty espoused by the anti-globalisation movement.

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Notes 1.

2. 3.

4.

5.

Karl Marx and Frederick Engels, ‘Manifesto of the Communist Party’, in David Fernbach (ed.), The Revolutions of 1848 (Harmondsworth: Penguin Books, 1973), pp. 66–98, especially p. 71. Karl Marx, Capital, Vol. 1, trans., Ben Fowkes (Harmondsworth: Penguin Books, 1976). In Hitler’s words, ‘The development of Germany was much too clear in my eyes for me not to know that the hardest battle would have to be fought not against hostile nations but against international capital.’ See, Adolph Hitler, Mein Kampf, trans., Ralph Manheim (Boston: Houghton Mifflin Co., 1943), p. 213; cited in Dough Henwood, Wall Street (London: Verso, 1993), p. 303. See, for instance, Business Standard, ‘RSS to Continue Attack on Globalisation, MNCs’, Business Standard, 28 March 1995; Business Standard, ‘RSS Plans Stir against Government Today’, Business Standard, 30 November 1998; Economic Times, ‘BMS Joins Left in Slamming Government’s Economic Policies’, Economic Times, 14 January 1999. See, for example, Subir Roy, ‘Quietly, Backoffice Outsourcing Goes Deeper, Wider’, Business Standard, 17–18 May 2003; Sunil Rajanala, ‘Outsourcing HR: The Next Big Thing’, Economic Times, 18 May 2003; J. Padmapriya and V. Balasubramanian, ‘Outsourcing of Auto Parts Revs Up Job St’, Economic Times, 24 September 2004. Even within the Republican Party in the US, there was a division between Bill Thomas—who drafted a Bill repealing tax concessions to exporters that the WTO had judged to be illegal—and Phil Crane, who opposed the Bill. The split between Mr Crane and Mr Thomas mirrors divisions among US corporations over the WTO ruling. A coalition of large electronics, oil, retail and consumer companies, including Wal-Mart, Coca-Cola and General Motors, released on Friday a letter endorsing Mr Thomas’s bill, saying it would end what is, in effect, double taxation on the overseas operations of US companies,’ whereas ‘the big beneficiaries of the current…tax break are companies that manufacture in the US for export, including Boeing, Microsoft and Kodak’. See Edward Alden, ‘US Divided on EU Levy Issue’, Business Standard, 17 September 2002.

6. This is pointed out by Jan Breman in his critique of the World Bank’s World Development Report 1995: Workers in an Integrating World. See Jan Breman, ‘Labour, Get Lost: A Late-Capitalist Manifesto’, Economic and Political Weekly, Vol. 30, No. 37, (16 September 1995), pp. 2294–300. 7. See Joseph E. Stiglitz, Globalization and Its Discontents (London: Penguin Books, 2002). 8. Neeta Ghei, ‘WTO Ruling against US Gives a Ray of Hope to Third World’, Economic Times, 21 January 1996. 9. See, for example, Business Standard, ‘EU Files Formal Complaint with WTO’, Business Standard, 8 March 2002. Also see in Economic Times, ‘Japan Retaliates against US Steel Tariffs’, 18–19 May 2002; ‘US under Fire at WTO over Steel Tariff’, 9–10 March 2002; Richard Waddington, ‘EU Gets WTO Nod for $4bn Sanctions on US’, 31 August 2002; ‘US Loses Battle in WTO Court on Cotton Subsidies’, 3 March 2005. Also, Ranvir Nayar, ‘WTO Upholds EU, India Case against US’, Economic Times, 16 January 2002, and many more.

54 ROHINI HENSMAN 10. It was not an unqualified victory for health activists and Third World governments, because there was a great deal of red tape involved in the procedure which would allow countries like Brazil and India, which were producing cheap generic versions of patented drugs, to export them to poor countries suffering a health emergency, but it was certainly a defeat for the pharmaceutical companies. See Neeraj Kaushal, ‘A Sugar-coated Pill from WTO’, Economic Times, 2 September 2003. 11. Koen De Ryck, ‘Asset Allocation, Financial Market Behaviour and Impact of EU Pension Funds on European Capital Markets’, in Institutional Investors in the New Financial Landscape (Paris: OECD, 1998), pp. 267–76. 12. Rudolf Hilferding’s Finance Capital–A Study of the Latest Phase of Capitalist Development, first published in 1910, was one of the earliest and most influential attempts at a Marxist analysis of the merging of bank capital and industrial capital to form ‘finance capital’, a new form at that time. See Rudolf Hilferding, Finance Capital—A Study of the Latest Phase of Capitalist Development, trans., Morris Watnick and Sam Gordon (London: Routledge & Kegan Paul, 1981). V.I. Lenin drew heavily on it in his critique of imperialism written in 1916 and published in 1917, usually mistranslated as ‘Imperialism, the Highest Stage of Capitalism’. See V.I. Lenin, ‘Imperialism, the Highest Stage of Capitalism’, in Collected Works, Vol. 22 (Moscow: Progress Publishers, 1964), pp. 185–304. The editors of Monthly Review point out that the original title was ‘Imperialism, the Latest Stage of Capitalism’, implying that although it was the latest stage at the time he was writing, it might not be the last. Please refer to Monthly Review, ‘Notes from the Editors’, Monthly Review, January 2004. Available online at http://www.monthlyreview.org/nfte0104.htm (last date of access: 22 December 2010). Lenin remarked that although an excess of capitalseeking profitable investment had arisen, the profits would never be used to improve the miserable living standards of the working class. The idea that one day workers’ savings would constitute an increasingly important form of finance capital would have seemed quite bizarre to him! 13. Ian Clarke, Globalization and International Relations Theory (Oxford: Oxford University Press, 1999), p. 57. 14. David Held and Anthony McGrew (eds), The Global Transformations Reader— An Introduction to the Globalization Debate (Cambridge: Polity Press, 2003), p. 11. 15. Held and McGrew, The Global Transformations Reader, p. 11. 16. Michael Hardt and Antonio Negri, Multitude: War and Democracy in the Age of Empire (London: Hamish Hamilton, 2004), p. 328. 17. See, for example, Katherine van Wezel Stone, ‘Labour in the Global Economy: Four Approaches to Transnational Labour Regulation’, in William Bratton, Joseph McCahery, Sol Picciotto and Colin Scott (eds), International Regulatory Competition and Coordination: Perspectives on Economic Regulation in Europe and the United States (Oxford: Clarendon Press, 1996), pp. 445–77. 18. Marx and Engels, ‘Manifesto of the Communist Party’, p. 77. 19. There has been an extensive debate over this issue, which I have reviewed elsewhere. See Rohini Hensman, ‘Minimum Labour Standards and Trade Agreements: An Overview of the Debate’, Economic and Political Weekly, Vol. XXXI, Nos 16 and 17, (20 April 1996), pp. 1030–34; Rohini Hensman, ‘World Trade and Workers’ Rights: To Link or Not to Link?’ Economic and Political Weekly, Vol. XXXV, No. 15, (8 April 2000), pp. 1247–54; Rohini Hensman, ‘World Trade and Workers’ Rights: In Search of an Internationalist Position’, in Peter Waterman and Jane Wills (eds),

Politics of Globalisation

20.

21. 22. 23.

24.

25. 26. 27. 28.

29. 30.

31.

32.

33. 34. 35.

36.

55

Place, Space and the New Labour Internationalisms (Oxford: Blackwell Publishers, 2001), pp. 123–46. Women Working Worldwide, Company Codes of Conduct: What Are They? Can We Use Them? (Manchester: Women Working Worldwide, 1998). This educational booklet was translated into several languages, including Sinhala and Marathi, and used in workshops to inform women workers about codes of conduct and consult them about their responses to the idea. Marx and Engels, ‘Manifesto of the Communist Party’, p. 79. Rosa Luxemburg, The Accumulation of Capital, trans., Agnes Schwarzschild (London: Routledge, 2003). Michael Kidron, ‘A Permanent Arms Economy’, International Socialism, Vol. 1, No. 28 (1967). Available online at http://www.marxists.org/archive/kidron/works/ 1967/xx/permarms.htm (last date of access: 22 December 2010). Praful Bidwai and Achin Vanaik, South Asia on a Short Fuse: Nuclear Politics and the Future of Global Disarmament (New Delhi: Oxford University Press, 1999), pp. x–xi. Vinay Lal, ‘New Orleans: The Big Easy and the Big Shame’, Economic and Political Weekly, Vol. XL, No. 38 (17 September 2005), pp. 4099–100. Michael Kidron, Western Capitalism since the War (Harmondsworth: Penguin Books, 1970). Seymour Melman, After Capitalism: From Managerialism to Workplace Democracy (New York: Alfred A. Knopf, 2001), pp. 110–14, 124–26. William Clarke, ‘Revisited—The Real Reasons for the Upcoming War with Iraq: A Macroeconomic and Geostrategic Analysis of the Unspoken Truth’. Available online at http://www.ratical.org/ratville/CAH/RriraqWar.html (last date of access: January 2004). This is a revised version of his January 2003 essay. Steve Johnson, ‘Asian Banks Cut Exposure to Dollar’, Economic Times, 11 March 2005. Jennifer Hughes, ‘Dollar Gets Sinking Feeling as Investor Confidence Fades’, Business Standard, 24–25 May 2003; Economic Times, ‘US Appetite for Foreign Stock Takes Toll on $’, Economic Times, 20 December 2004. Please see http://www.socintwomen.org.uk/en/history.html (last date of access: 22 December 2010); http://www.spartacus.schoolnet.co.uk/GERzetkin.htm (last date of access: 22 December 2010; and http://www.wilpfinternational.org/AboutUs/index. htm#briefhistory (last date of access: 22 December 2010). Rabindranath Tagore, Nationalism (London, 1917), p. 44, quoted by Sajal Nag, ‘Nationhood and Displacement in Indian Subcontinent’, Economic and Political Weekly, Vol. XXXVI, No. 51 (22 December 2001), pp. 4753–60 (especially p. 4753). Nag, ‘Nationhood and Displacement in Indian Subcontinent’, pp. 4753–54. From John Lennon’s song ‘Imagine’. Yahoo! News, ‘Number of Illegal Immigrants Hits 12M’, Yahoo! News, 7 March 2006. Available online at http://www.breitbart.com/article.php?id=D8G6U2ko8 (last date of access: 22 December 2010). Linda Bosniak, ‘Critical Reflections on “Citizenship” as a Progressive Aspiration’, in Joanne Conaghan, Richard, Michael Fischl and Karl Klare (eds), Labour Law in an Era of Globalization: Transformative Practices and Possibilities (Oxford: Oxford University Press, 2002), pp. 339–49 (especially p. 343).

56 ROHINI HENSMAN 37. Kristen Hill Maher, ‘Who Has a Right to Rights? Citizenship’s Exclusions in an Age of Migration’, in Alison Brysk (ed.), Globalization and Human Rights (Berkeley: University of California Press, 2002), pp. 19–43, (quotation from p. 21). 38. Kristen Hill Maher, ‘Who Has a Right to Rights?’ p. 24. 39. Bosniak, ‘Critical Reflections on “Citizenship” as a Progressive Aspiration’, p. 343. 40. Ibid.: 348. 41. Teresa Hayter, Open Borders: The Case against Immigration Controls (London: Pluto Press, 2000). 42. Nigel Harris, ‘Migration and Development’, Economic and Political Weekly, Vol. XL, No. 43 (22 October 2005), pp. 4591–95, see p. 4593. 43. Thus, the mainstream Left opposes globalisation because, they say, it undermines workers’ rights, while neo-liberals call for ‘flexibility’ of labour—which undermines workers’ rights—because they say that it is necessary for competitiveness in a globalised economy. The same Left opposes investment of pension funds in financial markets because they see it as an encroachment of the market into State-supported social security, while neo-liberals oppose investment of government- and unioncontrolled pension funds in financial markets because they see it as an encroachment of public control into the market, and thus the introduction of socialism through the back door!

3 Theory of Public Choice: Implications for Democracy Prakash Sarangi

Political theorists seek explanations for several puzzles. Why do individuals come together to form a collective entity? How are the rules of the game including rights and duties decided in such a collective? Why do a few individuals dominate over many? Why does a collective structure like a State break down? Answers to these questions have generated varieties of political theories. Explanations of these puzzles often centre on factors such as the presence of God, nature, force, class conflict and sexual gratification. However, it is specific individuals who interpret the role of God, use nature or force, engage in class conflict and seek sexual gratification. The will and reason of such individuals could be an important starting point in our understanding of political phenomena. They therefore constitute the focus of inquiry in the theory of public choice.

What Is Public Choice? Public choice theory uses the tools of economics in its study of political decision-making. The methodology of economics is used to analyse what has been the traditional domain of political science including theories of the State, the nature of democratic representation, voting behaviour, party and pressure politics, as well as the study of the executive, the legislature and the judiciary. ‘The basic behavioral postulate of public choice, as for economics is that man is an egoistic, rational, utility maximizer.’1

58 PRAKASH SARANGI Democratic decision-making is based on the premise that the resolution of a matter of social policy, group choice or collective action should accord with the desires or preferences of the individuals who constitute the social group or the collective. The theory of collective choice2 explains the way the tastes, preferences or values of individual persons are amalgamated into a choice of society. Individuals have bundles of opinions and it is assumed that they can logically arrange them according to their preferences. It is further assumed that when faced with a choice, they would be guided by their order of preferences. In other words, individuals have will and reason and they use these abilities while taking decisions. The bundles of preferences that we are concerned with in political science are those which concern not only the holders of preferences, but also other persons. One can realise one’s preferences by cooperating with others or by preventing others from realising their preferences. The activity of politics is the selection of the preference of some person (or the potential preference of some person) to be the choice of society….[W]e start with the contradictory preferences of many and end up with a single bundle of more or less realized choices for the whole.3

The assumption of rationality has an important role in the theory of public choice. ‘Rationality’ only implies regularity in behaviour. It presupposes that individuals are guided by their own purposes or goals. Rationality presupposes a goal-directed behaviour. These goals are defined by the individual herself/himself. They are not dictated by an outside agency, a supernatural entity or a philosopher. As social beings, we often have to react to prescribed goals. These goals get into each individual’s calculus while deciding on an action. One finds a reason for action. To give a reason is to demonstrate that the actor acted as if s/he were seeking to achieve a particular goal. These reasons eliminate randomness in human behaviour. However, no specific goal is prescribed for the rational actor. This notion of rationality differs from political rationalism. The latter, which dominates the history of political thought, assumes that the rational human beings pursue a general goal of human society, be it justice, the good life or securing order. On the other hand, in a rational actor model, an individual’s preferences emerge out of a self-defined purpose or goal.4 The fundamental assumption is that the behaviour of an individual must be explained in terms of her/his maximising her/his own ‘utility’ and that all social phenomena may be explainable on the basis of this conceptualisation of individual behaviour. Thus a rational choice approach reduces all human action to the making of choices which confront the

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actor or subject. The rational agent is to analyse various courses of action open to her/him in terms of the consequences each will have. The actor is supposed to have a preference ordering which satisfies two axioms—an axiom of choice (between any two alternatives s/he can say that one is preferred to the other or that s/he is indifferent between them) and an axiom of transitivity (if an alternative, x, is preferred to an alternative, y, and if y is preferred to an alternative, z, then x is also preferred to z). Thus, from the set of alternatives, an individual chooses that set which has the highest ranking in his preference ordering. However, no assumption is made about the way in which people come to prefer one thing to another. It is not even assumed that one derives greater pleasure from the alternative that s/he prefers. A person’s wants, values or satisfactions are immaterial to our analysis. All that is required is that a person be consistent in her/his choice and consistency is possible if axioms of choice and transitivity are fulfilled.

Theory of State In an economic market, goods and services are supposed to be allocated efficiently through an ‘invisible hand’. But it is often alleged that such allocations may lead to anarchy because of collusion among individual players. In a democratic State, the problem of aggregating individual preferences into public policy is structurally the same as the more general problem of aggregating demands in the market. The State serves as the ‘visible hand’ in the form of a public planner allocating goods and services based on these preferences. But how can we find the best way of aggregating them? This is the stage of constitution-making analogous to the generation of ‘a social contract’, which transforms ‘the state of nature’.5 What decision rules will rational individuals support? What decision rules ought to be supported? Could any one set of decision rules be both empirically predictable and normatively justifiable? Is there a set of decision rules which rational individuals will choose and which will satisfy certain ethical criteria? First, in a situation like the Hobbesian state of nature, each individual faces a dilemma, the classic example of which is the prisoner’s dilemma.6 Individuals will be better off by accepting an enforced cooperative outcome, that is, deciding to form a State and accepting its rules. The resultant peace would be the obvious benefit. Such a decision will

60 PRAKASH SARANGI also entail some voluntary costs which individuals would impose on themselves. The examples of such costs may be payment of taxes, obeying the law, and so on. There are also involuntary costs in the form of negative externalities7 imposed on us by the actions of others. These are essentially a violation of individual rights and are therefore legitimate social issues. The main function of the government is to prevent such negative externalities. Tullock and Buchanan8 argue that each individual is in the best position to determine when s/he is suffering a loss of utility from the actions of others. Therefore, it is claimed that the unanimity rule is best suited to protect against the loss of rights. However, such a rule may prevent actual decisions from being taken, since each individual wields a veto against a decision. Since most real political societies involve considerable conflict, decision-making is likely to be difficult. Time and effort are necessary to persuade those who oppose a policy to support it, and such support frequently must be obtained by providing concessions, promises of future support and other policies. Such time, effort or concessions are obvious costs. Thus, the choice of a decision rule represents a trade-off between external costs and decision costs. External costs may be the lowest in the unanimity rule, lower in a three-fourths majority decision, and somewhat higher in a majority decision. Therefore, each State has to decide on the level of consent that is necessary to ensure its continued existence. Following the tradition established by Black9 and Arrow,10 it is well known that there is coexistence of coherent individual valuations and a collectively incoherent choice. It is as though almost anything anyone has ever said about what a society wants or should get is threatened with internal inconsistency. This result, known as Arrow’s General Possibility Theorem, is essentially a generalisation of what is popularly known as a Paradox of Voting.11 According to this theorm if there are more than two voters and more than two alternatives, a majority preference cycle will emerge and no alternative can decisively be selected. No method of amalgamating individual judgments can simultaneously satisfy some reasonable conditions of fairness on the method and a condition of logicality on the result. The possibility of a lack of meaning in the outcome is a serious problem for social judgement and public choice. It forces us to doubt if the content of ‘social welfare’ or ‘public interest’ can even be discovered by amalgamating individual value judgments. One even doubts if any such thing as ‘public interest’ exists. Epistemological questions of this kind are serious and cannot be easily resolved. The practical consequences of the paradox are still worse. These consequences are either

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that power is concentrated in society or that any system of voting can be manipulated to produce outcomes advantageous to the manipulators or at least different from outcomes in the absence of manipulation. Those in control of procedures can manipulate the agenda, and those not in control can manipulate by false revelation of values.

Political Participation A key issue in public choice literature is to explain a voter’s decision to vote in an election. Anthony Downs12 justified the ‘rational ignorance’ of voters. When parties compete for the votes of a large electorate, each individual’s vote has a negligible probability of affecting the outcome. Further, the individual may calculate the benefit s/he may derive if one candidate wins rather than another. If a voter expects to get benefits by getting her/his choice of candidate elected, such a hope may be mistaken, since one vote may not make a difference to the outcome of the election. Therefore, rational voters would not like to spend time and energy to gather information about the candidates. They would rather remain rationally ignorant both about the issues in the election and the position of candidates on these issues. There have been several attempts to find a way out of this complex issue, since in reality millions of voters go out to vote during elections. Instead of regarding the decision to vote as mysterious or ‘irrational’, one may regard it as something other than an investment in a particular election or in a party. It may be an altruistic act to save democracy or to save a party from sinking.13 Voting may also be regarded as an expressive act.14 There may be very few strategic options for citizens as voters, but their simple decision has genuine importance for politics in a democracy. Brennan and Buchanan15 suggest that a voter’s participation is like a sports fan’s act of watching a match. By cheering for one of the competing teams, s/he expresses a preference for a team. But this support does not contribute to the team’s chance of success. Brennan and Buchanan argue that voting, like cheering in a match, is an expressive act, not an instrumental one. The inconsequential nature of a single vote frees the individual to allow other considerations to intrude upon her/his choice of candidates— peer pressure, campaign slogan, and so on. This, of course, reduces the importance of predictive models of the political process and undermines the normative conclusions drawn from voting. But altruistic participation brings out a new dimension of the voter’s decision to participate.

62 PRAKASH SARANGI

Party Competition It is assumed that both representatives and voters are rational, economic individuals trying to maximise utilities. Voters’ utilities are functions of the baskets of public goods and services they consume. A representative’s utility, however, is not so straightforward. The frequently employed formulation is that of Anthony Downs who hypothesised that ‘parties formulated policies in order to win elections, rather than win elections in order to formulate policies’.16 Using this theory, Downs argued that, if political opinion is depicted in a single continuum, political parties would like to position themselves at the median point in order to win elections.17 Each voter is assumed to have a most preferred position along the spectrum for his candidate or party. The further the candidate is from this position, the less desirable his election is to the voter.18 Thus, a candidate can go after the votes of other candidates by invading his territory and both continue to move towards the median. Downsian spatial analysis of electoral competition has a potential for contributing to our understanding of complex political processes.19 Spatial analysis formulates the electoral process as a game and therefore brings out a decision context in which people’s fates are interdependent. It alerts us to the fact of strategic voting by the mass electorate. One realises the complexities involved in a multi-dimensional policy space leading to instability in outcome. Spatial analysis raises important questions about the very meaning of an issue, of public opinion and about the relationship between public policy and people’s evaluation of policy. By deciphering the conditions of political equilibrium, we come to understand the nature of representation for bringing about stability or change. Political parties learn to pursue preference-accommodating strategies, that is, making their policy stances accord as closely as feasible with the preferences of a majority of voters. However, as Mueller states, ‘Downs’s Economic Theory of Democracy raised the promise that political competition might achieve attractive outcomes and at the same time undermined that promise by persuasively arguing that rational voters would remain ignorant of the issues.’20

Political Coalitions The theory of public choice is also used in the analysis of coalition formation in multiparty systems. William Riker21 suggests that all party systems would converge to two parties, or two coalitions of parties,

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of almost equal size. His model rests on the hypothesis of politics as a zero-sum game.22 In such a game, the optimal strategy is to allow one’s coalition to be as small as possible. Assuming that there is a fixed payoff, say cabinet berths, which is to be divided among the winning coalition, each party would like to let as small as a number of additional parties into the government as it can and still secure a majority. Riker predicted that all ‘grand coalitions’ would break into ‘minimum winning coalitions’. If the only goal of a party was to win elections, there would be no reason for a grand coalition to disintegrate. It may look safer to have a big coalition to minimise the risk of losing votes. But if one’s payoff decreases in a large coalition, one would like to make the coalition a lean one and throw out the unwanted partners. Axelrod23 added a new dimension to Riker’s model, in which parties are principally office-seeking, but attempt to form coalition governments that minimize ideological policy differences across their known policy preferences. He proposed that the coalitions will be minimal connected winnings, that is, both winning and comprising ideologically closer in the left–right or any other significant dimension. In other words, the process of coalition formation takes account not simply of the size of coalition, but also of ideological congruity. Riker’s idea of a minimum winning coalition comes from a treatise on the Zero-sum Game Theory by von Neumann and Morgenstern.24 In a zero-sum game, the players have no common interests at all. If the prize is fixed, then the fewer the players who have to share it, the more there is for each winner. One should note, however, that there is a difference between Downs and Riker on the goals of the players. While Downs said that the politicians’ goal is to win as many votes as they can, Riker says that they aim to win just enough votes to get into power. Too many votes may be almost as bad as too few. If the size of the cake to be distributed is fixed, then the fewer the people who get a share, the better. ‘However, the contradiction between Riker and Downs may be more apparent than real. For mass elections, there may be not much difference between their predictions because of the impact of uncertainty’.25

Government Output On the demand side of public choice, the government is seen simply as an institution for aggregating or balancing individual demands for public policies. Those in the government are merely pawns in the arena of competitive elections and would therefore design public policies to woo their

64 PRAKASH SARANGI voters. However, politicians may not live by votes alone. They may also seek wealth, status or leisure and these preferences have a significant impact on the functioning of the government. Besides, the bureaucrats who run the government machinery do not have to face elections. While the economic man pursues profit, the bureaucratic man pursues power. Profit exists because of uncertainty and is earned by those who possess the daring and information to allow them to make correct decisions under uncertainty. Thus, there is a close link between the economic theory of profit and the political theory of power. Both exist owing to uncertainty; both accrue to the possessors of information.26

Political power means inducing someone to do something that they would not otherwise do. A political actor can exercise power because of her/his access to information regarding the alternatives, which would enable her/him to persuade others to vote for her/him preferred alternative. The pursuit of profit is not considered a legitimate goal of a government department. A bureaucrat, therefore, has to set non-pecuniary objectives.27 Some of the objectives often examined are: maximising the size of one’s budget and minimising the risk. The first systematic study of bureaucracy within the public choice framework was conducted by William Niskanen.28 One of the important assumptions is that a government department is a monopolist supplier of goods and services, analogous to a monopolist firm. Albert Breton29 argues that, besides a desire to retain office, a government official’s objective function would include personal pecuniary gain, personal power, pursuit of lofty personal ideals, personal view of the common good, and so on. To achieve these goals, persons in power take advantage of their position as the monopoly supplier of highly desired public goods, for example, defence, police, highways and welfare provisions. A monopolist of a private good can increase profits by tying the monopolised product with others where he has no monopoly. A consumer compares the packages offered by different suppliers—as in the case of TV channels, if there is a choice—and picks the one that gives her/him the maximum advantage. In the same way, a government can achieve the varied objectives of its members by packaging narrowly defined issues with the popular services it monopolises. Political competition is thought to provide an ineffective constraint on government because of the rational ignorance of voters, the uncertainties inherent in majority rule

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cycles and collusion among elected officials.30 Traditional analysis of the working of government assumed that the purpose of government is to raise a certain amount of revenue, subject to efficiency and equity constraints. But when a government is viewed as a malevolent revenue maximiser rather than as a benevolent provider of public goods, the traditional view virtually stands on its head.

The Logic of Collective Action The pioneering work on interest groups using the public choice approach is by Mancur Olson.31 Interest groups emerge because it is believed that public policy can enhance certain values which bring a set of individuals together, be it for higher wages or for clean drinking water. The commonality of the goals of the members of an interest group makes the fulfilment of these goals a public good for the group. It, however, gives rise to a free-rider problem—a worker gets a wage hike even without contributing to the efforts to fight for such a demand. Two conclusions drawn from this premise are: (a) it is easier to form an interest group when the membership is small and (b) in large interest groups, separate and selective incentives need to be used to curb the free-rider problem. The typical examples of selective incentives are deducting union membership dues from the salary, hiring only from unionised labour, and so on. Empirical verification of Olson’s theory suggests that free-riding increases as the number of players expands, but only some individuals, and not all, free-ride. Olson used his analysis of the interest group to explain differences in growth rates across nations. He was primarily concerned with interest groups having redistributive objectives. They would like to maintain their monopoly over the membership and would extract maximum possible incentives from the government. The emphasis on distributional goals of interest groups—or, ‘distributional coalitions’ as Olson calls them— prevents them from supporting any unpleasant radical decisions. Any restriction on the entry or fixing a quota makes the distribution pie smaller, resulting in efficiency loss.32 Olson uses this distribution, the efficiency loss argument to explain differences in growth rates across nations. Interest groups tend to be democratic and thus are slow in reaching decisions. They are therefore slow in responding to change in an organisation. They slow down a society’s capacity to adopt new technologies and to reallocate resources in response to changing conditions and thereby reduce the rate

66 PRAKASH SARANGI of economic growth. Therefore, a country’s growth rate varies inversely with the level of interest group activity. During periods of social and political stability, the number of interest groups grows along with a growth of distributional conflicts and a slowing down of economic growth. On the other hand, in a country where the interest groups are subdued or destroyed, the economy is likely to grow faster.

Exit, Voice and Loyalty Should a citizen voice a protest against the State or decide to quit it? Should s/he be a loyal citizen or revolt against the State? Albert Hirschman has used the public choice approach to grapple with such dilemmas.33 It is often assumed in political science literature that the boundaries of the polity are predefined and the citizenry is fixed. A citizen is, at most allowed to abstain from participation in the political process. But s/he cannot leave the polity in order to avoid the consequences of its decisions. One cannot easily change one’s citizenship. However, in the economic market, entry or exit options remain with the buyers and sellers. They can even communicate or ‘voice’ in respect of price–cost negotiations and the condition of exchange. Hirschman argues that, as in the case of the economic market, there is scope for exit and voice in the political market as well. In this respect, the theory of clubs is very instructive.34 A club is an association which provides non-excludable public goods. Many of its activities are shared by all the members. But, there are also additional costs for some specific services, for instance, an extra fee for swimming. This results in exclusion on the basis of variable costs, depending on a member’s use of the services. There cannot be identical tastes and income. Thus, exclusion from the consumption of a public good is possible with an institutional device. Similar exclusion is possible in the case of State-action. For example, different bundles of public goods may be provided in different locations, thus physically excluding a part of the population. Similarly, a person may be excluded from an option, say formal education, if one wishes to have only indigenous education. In such cases, citizens can generate ‘club’ type of communities with their own allocation of limited public goods. A club may function like a local polity. ‘No ballots will have to be cast. All preferences will be revealed through the silent voting-with-the-feet of individuals exiting and entering communities.’35

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The extreme case of exit by disloyalty is revolution. Public choice theorists are puzzled by the reasons for a revolution in a country and by the fact that rational individuals participate in them.36 An individual’s participation in a revolution is a function of the level of her/his dissatisfaction with the regime and the extent of time s/he is willing to contribute in its pursuit. The participant in a revolution expects greater benefits from the new regime, if the revolution succeeds. Further, the success of the revolution depends on the time and effort all other citizens contribute to the revolutionary activity. There are also costs of participation. Spending time in a revolution implies losing wages. Also, the probability of being caught and punished increases with the increased hours of participation. Weighing both benefit and cost, which almost cancel each other out, a person’s participation would solely depend on her/his personal satisfaction in the revolutionary movement. For an average citizen, the benefits from a revolution’s success are pure public good benefits, which cannot be denied to someone who did not participate in the revolution. One can even get a free ride without any risks and get the benefits of a revolution. However, this is not true of the leaders of a revolution. Their marginal benefit from the new government is much higher. Thus, it is easier to explain the participation of leaders in a revolution, rather than that of the rank and file. ‘Under a rational choice theory, leaders of a revolution are like entrepreneurs in the theory of the firm, risk takers with extreme optimism regarding their ability to beat the odds.’37

In Lieu of a Conclusion This chapter has presented a few examples of the use of the theory of public choice in explaining various aspects of political life, with particular reference to democratic politics. Every political action is viewed as a collective action resulting from the decisions of individuals who constitute the collective. The calculus of action is regarded as the primary explanatory variable. While this explanation makes sense up to a point, if we accept the findings of Black and Arrow on cyclical majorities,38 we should expect a lot of instability in collective action. But in reality, State and society are reasonably stable. One needs to go beyond pure economic explanations and ask the reasons for stability in individuals’ valuations of their own actions. Perhaps a stable value system emerges through sustained interactions between individuals and sociopolitical institutions.

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Notes 1. Dennis C. Mueller, Public Choice II (Cambridge: Cambridge University Press, 1989), p. 2. See also, Anthony Downs, An Economic Theory of Democracy (New York: Harper and Row, 1957); J.M. Buchanan and G. Tullock, The Calculus of Consent (Ann Arbor: University of Michigan Press, 1962); and William H. Riker and Peter C. Ordeshook, Introduction to Positive Political Theory (Englewood Cliffs: Prentice-Hall, 1973). 2. Depending on what is being decided upon, this theory is variously called social choice, public choice or collective choice. This is a rational choice approach used in the context of the collective. Economists often use the term social welfare function. 3. Riker and Ordeshook, Introduction to Positive Political Theory, p. 2. 4. Ibid.: 13–14. 5. This is in reference to the hypothetical choice situation for individuals in the state of nature, as described by several social contract theorists. While the goal is to generate a democratic State, the aggregation of preferences may also result in a ‘Leviathan’. 6. Prisoner’s dilemma is a classic example of choice in conditions of uncertainty. Two accomplices committed a crime, were arrested and put in two different cells. Each one is offered freedom after confessing, thereby sending the other to jail for 10 years. If each one confessed, both may be charged of colluding and are likely to get a sentence of five years. If, however, no one confesses, each may get only a minor punishment. The dilemma is the following: each one would like to go free. However, freedom of each prisoner can be achieved through the sacrifice of the other. Both are better off if they cooperate with each other and do not confess. A similar dilemma is faced by the individuals in the hypothetical state of nature. For each one, pursuing self-interest may sound attractive, but collective welfare could be achieved by cooperating with each other, that is, by creating a State through social contract. 7. An externality occurs when the activity of an individual has unintended impact on the utility function of another individual. The classic example of negative externality is the factory chimney whose smoke pollutes the surrounding area. 8. Buchanan and Tullock, The Calculus of Consent. 9. Duncan Black, The Theory of Committees and Elections (Cambridge: Cambridge University Press, 1958). 10. Kenneth Arrow, Social Choice and Individual Values (New Haven: Yale University Press, 1963). 11. The typical example is that of a three-person society consisting of A, B and C choosing among three alternatives, x, y and z. The preference order may hypothetically be as follows: A: xPyPz B: yPzPx C: zPxPy, where P means ‘preferred to’ If we assume that the society follows a simple majority rule as a method of amalgamation of preferences, the social choice will result in xPyPzPx. This violates the principle of transitivity and, hence, the social preference is inconsistent. Arrow’s General Possibility Theorem is a generalisation of this result. No matter which method is used to amalgamate the preference—instead of a majority rule, as in this example—it will result in an inconsistent result. 12. Downs, An Economic Theory of Democracy, Chapter 14.

Theory of Public Choice 69 13. Iain McLean, Public Choice (Oxford: Blackwell, 1987), pp. 46–47. 14. John H. Aldrich, ‘When Is It Rational to Vote’, in Dennis C. Mueller (ed.), Perspectives on Public Choice (Cambridge: Cambridge University Press, 1997), pp. 385–87. 15. G. Brennan and J.M. Buchanan, ‘Voter Choice: Evaluating Political Alternatives’, American Behavioral Scientist, Vol. 28, No. 2 (1984), pp. 185–201. 16. Downs, An Economic Theory of Democracy, p. 28. 17. This median voter theorem was earlier formulated in H. Hotelling, ‘Stability in Competition’, Economic Journal, Vol. 39, No. 1 (1929), pp. 41–57 and Duncan Black, The Theory of Committees and Elections (Cambridge: Cambridge University Press, 1958). 18. Downs assumes that in a continuum—say from extreme left to extreme right policies of parties—maximum voters will be at the middle point in the form of a single-peaked curve. In other words, voters will be evenly distributed on either side of the middle point. A party positioning itself closest to the middle point is likely to win. 19. Peter C. Ordeshook, ‘The Spatial Analysis of Elections and Committees: Four Decades of Research’, in Dennis C. Mueller (ed.), Perspectives on Public Choice (Cambridge: Cambridge University Press, 1997), pp. 262–64. 20. Dennis C. Mueller, Public Choice II (Cambridge: Cambridge University Press, 1989), p. 215. 21. William H. Riker, Theory of Political Coalition (New Haven: Yale University Press, 1962). 22. A zero-sum game implies that one wins at the cost of others. In a two-person game, if my payoff is 1, my opponent’s payoff must be –1. The sum of both payoffs is zero. 23. Robert Axelrod, Conflict of Interest (Chicago: Markham, 1970). 24. J. von Neumann and O. Morgenstern, Theory of Games and Economic Behaviour (Princeton: Princeton University Press, 1947). 25. Iain McLean, Public Choice, p. 105. 26. Mueller, Public Choice II, p. 250. 27. It is, of course, true that many bureaucrats or politicians try to convert their power into monetary gain. Public choice literature has a separate theme on ‘rent seeking’ political actors. 28. William A. Niskanen, Bureaucracy and Representative Government (Chicago: AldineAtherton, 1971). 29. Albert Breton, The Economic Theory of Representative Government (Chicago: Aldine, 1974). 30. G. Brennan and J.M. Buchanan, The Power to Tax (Cambridge: Cambridge University Press, 1980), pp. 17–24. 31. Mancur Olson, The Logic of Collective Action (Cambridge: Harvard University Press, 1965 and The Rise and Decline of Nations (New Haven: Yale University Press, 1982). 32. For example, if trade unions oppose migration of workers from abroad, it may result in the loss of efficiency of the work force. 33. A.O. Hirschman, Exit, Voice and Loyalty (Cambridge: Harvard University Press, 1970). 34. J.M. Buchanan, ‘An Economic Theory of Clubs’, Economica, Vol. 32, No. 1 (1965), pp. 1–14. 35. Mueller, Public Choice II, p. 154. 36. See, for example, Gordon Tullock, ‘The Paradox of Revolution’, Public Choice, Vol. 11, No. 1 (1971), pp. 89–100 and M. Silver, ‘Political Revolution and Repression: An Economic Approach’, Public Choice, Vol. 14, No. 1 (1974), pp. 63–71. 37. Mueller, Public Choice II, p. 175. 38. Black, The Theory of Committees and Elections; Arrow, Social Choice and Individual Values.

4 Justice, Citizenship and the Politics of Feminism Lajwanti Chatani

Introduction This chapter explores the ongoing discourse on feminism to mark out a possible political intervention that this discourse makes in the dominant theorising on justice and citizenship. It is an attempt to understand the present strains and unease in the relationship between the different theoretical positions on justice and the conceptualisations of the citizenself, and to underscore the manner in which feminist scholars, particularly their arguments on just citizenship, serve to address such strains and uneasiness. The most distinctive feature of contemporary political theory is its concern with the idea, issue and claims of justice. Not too long ago, before the publication of John Rawls’s A Theory of Justice in 1971,1 the field of political theory identified as its focal point the conceptual analysis of the meaning of power, sovereignty and the Rule of Law. An order enforceable by the exercise of power, and not the justness of that order, remained the central concern of political thinking and practice. Today, however, such concerns have been left behind by the imperative to raise and address claims of injustice by working out, in a more democratic way, principles of justice that citizens would obey politically as well as morally. Since the publication of A Theory of Justice, political theorists of various persuasions have arrived at competing understandings and conceptualisations of justice. Different arguments and claims are provided to explain and legitimise a possible political and at times moral order.

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Liberals, communitarians, libertarians, secular democrats, neo-Marxists, human rights theorists and feminists, among others, work out and advocate diverse accounts of justice. Underlying such diversity, however, is an agreement that present-day political thinking and practice ought to be guided by the pursuit and guarantee of justice. The centrality of justice to contemporary political theory is further accentuated when the legitimacy of the principles underlying the State is seen to depend primarily on their justness and not on their enforceability. Political issues and concepts such as rights, citizenship, nationalism and democracy, to mention a few, are validated and legitimised in terms of justice, rather than power. The idea of the State seems to shift from being essentially ‘a war-making institution’2 to one for which, as Rawls claims, ‘justice is the first virtue’. It is this concern with justice that, many would argue, renders contemporary political theorising a more meaningful, empowering and perhaps worthy project. This chapter focuses on the relationship between justice and citizenship. Citizenship is the political identity that we as members of a political community possess. As such, our political identity is crucial, and the attempt to construct the image and identity of the citizen is one of the most important tasks of democratic politics. The transition from subjects to citizen-selves marks the most significant moment in the historical trajectory of democracy. While democratic struggles are fought for different reasons and in different ways, it seems clear that any final negotiation of such struggles would be worked out through the logic of citizenship. As pointed out by Will Kymlicka, the ongoing debates and struggles over justice and inclusion have been, are and would continue to be negotiated and resolved through the idea and claims of citizenship.3 Citizenship is often and rightly linked to the kind of society and political community that we seek to establish and sustain. But more than that, citizenship draws from and depends on the prevalent or dominant understanding or idea of justice available to us. Citizenship is essentially determined by the dominant and settled claims and conceptions of justice. The main concern of this chapter is to demonstrate how the ongoing discourse on justice, rather than providing a focal point on which to resolve and negotiate the claims of citizens, is itself fraught with deep and apparently conflicting disunities. Today, the prevalent understanding of justice is one that is beset with fractures. Such fractures render a political guarantee of justice, somewhat improbable. More importantly, they get reflected in prevalent notions of citizenship, thereby nullifying the guarantee of a sufficiently just democratic citizenship. This chapter argues that

72 LAJWANTI CHATANI such fractures in the ongoing discourse on justice and citizenship ought to be repaired so as to realise the promise of a truly just citizenship. This chapter discusses two interrelated fractures situated in the ongoing discourse on justice and citizenship. The first is over the conception of the citizen-self, referred to as Fracture 1. The second is over the legitimate concern of justice, referred to as Fracture 2. Having explained both fractures, this chapter goes on to argue that the ongoing discourse on feminist politics contains the possibility of repairing the fractures and thereby of providing the basis for an integrated effective conception of just citizenship. It argues that a possible political resolution to the disunities in the discourse on just citizenship is contained in the discourse on feminism. In exploring such a solution, the chapter looks at the arguments of two feminist political theorists, namely, Chantal Mouffe and Nancy Fraser. While Mouffe addresses Fracture 1, Fraser sufficiently explains and responds to Fracture 2. Both of them have, in different ways, tried to raise and respond to the issue of a just citizenship, and it is in their arguments that one can locate a possible solution.

Fracture 1: The Conception of Citizen-self Fracture 1 is one which afflicts the conception of the citizen-self. The dominant understanding of the citizen-self is one that derives from and is deeply influenced by liberal political principles. Liberalism has contributed to the formulation of a notion of citizenship, which is based on the assertion that all individuals are born rational, free, equal and capable of self-determination. Drawing heavily from the philosophy of Kant, this conception of citizenship sees the self as individuated and at a distance from all other private identities. What underlies it is the clearly formulated and entrenched separation of the private sphere of freedom and choice and the public sphere of order and control. In the liberal understanding, the principles structuring the public and private are essentially different and politically determined. While the public realm of modern citizenship is constructed in a universalistic and rationalistic manner that precludes the recognition of division and antagonism, our particularities, differences and disagreements characterise the private realm. The public–private distinction, central as it is for the assertion of individual liberty, acts therefore as a powerful and potent tool of exclusion

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as well as alienation. Many contemporary political theorists have argued that while this separation managed to work out some guarantee of freedom, it played an important role in the misrecognition, oppression and subordination of the minorities and women. Many would go on to argue that it also reduces citizenship to a mere legal-political status. Chantal Mouffe, for instance, claims that liberal notions of citizenship simply indicate: […] the rights that the individual holds against the state. The way those rights are exercised is irrelevant as long as their holders do not break the law or interfere with the rights of others. Notions of public-spiritedness, civic activity and political participation in a community of equals remained alien to most thinkers.4

Such arguments against the dominant liberal understanding of the citizen-self have provided sufficient reason and grounds for alternative conceptualisations of the citizen and her rights. Several contemporary political theorists have explored the civic republican and communitarian traditions in search of a different, more active conception of citizenship. Unlike the liberal tradition, these traditions emphasise the value of political participation and the notion of the common good, which is understood to be both prior to and independent of individual desires and interests. Contrary to the individualists, the communitarians draw from the arguments and contributions of Hegel. According to the communitarians, the understanding of the citizen as individuated is not only flawed but fails to be representative of what we truly are, that which is attached and situated. It fails to take account of the true nature of the political as an activity oriented to the common good. They defend the respect, recognition and accommodation of groups, cultures and identities in the public political sphere. Such accommodation, it is argued, necessitates the guarantee of group-specific or minority rights, rather than rights of the individualist type. Two different and rather conflicting languages and positions on the identity of the citizen-self therefore characterise the ongoing discourse on citizenship. Kantian liberals represent the citizen of a constitutional democracy in terms of equal rights and the claims to egalitarian redistribution. The best expression of this representation is found in Rawls’ two principles of justice as fairness. On this account, once citizens see themselves as free and equal persons, they should recognise that to pursue their own different conceptions of the good, they need the same

74 LAJWANTI CHATANI primary goods—that is, the same basic rights, liberties and opportunities— as well as the same all-purpose means such as income and wealth and the same social bases of self-respect. The Hegelian communitarians object that this is an impoverished if not altogether flawed conception, that precludes the notion of the citizen as one for whom it is natural to join with others to pursue common action for the common good. For them, the alternative to the flawed liberal approach is the revival of the civic republican view of politics that puts a strong emphasis on the notion of a public good, prior to and independent of individual desires and interests. Some of the recent advocates of this argument include Charles Taylor, Michael Sandel and to some extent, Will Kymlicka. Here I wish to leave out the question of which position is worthier. What I argue is that this contestation over the identity of the citizen-self renders improbable a correct representation of who we as citizens are. The contestation in turn fractures our understanding of justice and citizenship by disuniting our claims as individuals from our claims as members of this or that community. As such, we need to mend this fractured notion of the self in order to develop an adequate guarantee of citizenship. Much of present day feminist scholarship aims at contesting and reconceptualising notions of the political. The distinction between the public and private has been a crucial site of contestation and criticism for most feminist theorists. They contend that the project of an individuated citizenship fails to recognise and respond to the politics of the personal. In fact, within recent feminist scholarship, there have been sufficient arguments on alternative models of citizenship.5 However, many of these alternatives do not seem to contain a satisfactory response to the fractured identity of the citizen-self. Most feminists concerned with the contribution that feminism could make to political theory in general and to the theory of democratic politics, in particular, have concerned themselves either with the specific demands that could express and satisfy women’s interests or with the specific feminine values that should underlie any framework of democratic politics. As noted by Mouffe: [L]iberal feminists have been fighting for a wide range of new rights for women to make them equal citizens, but without challenging the dominant liberal model of citizenship and of politics. Their view has been criticized by other feminists who argue that the present conception of the political is a male one and that women’s concerns cannot be accommodated within such a framework. Following Carol Gilligan, they oppose a feminist ‘ethics of

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care’ to the male and liberal ‘ethics of justice’. Against liberal individualist values, they defend a set of values based on the experience of women as women, that is, their experience of motherhood and care exercised in the private realm of the family….According to this view, feminists should strive for a type of politics that is guided by the specific values of love, care, the recognition of needs and friendship.6

A somewhat different, though equally convincing, feminist critique of liberal citizenship is provided by Carole Pateman in her work, The Sexual Contract.7 Here Pateman contests the supposedly disembodied genderneutral understanding of the citizen-self. According to her, citizenship is essentially and after all ‘a patriarchal category’. Who a ‘citizen’ is, what a citizen does and the space within which he acts have been constructed in the masculine image. Consequently, although women in liberal democracies are now equal citizens, such equal citizenship has been won and continues to be practiced within a structure of patriarchal power in which women’s qualities and labour are still devalued and discounted. In response to such a devaluation of women’s qualities and labour, some feminist scholars demand the full integration of women’s distinct capacities into the public world of citizenship. Such a demand, according to Pateman, faces what she calls the ‘Wollstonecraft dilemma’, that is, to demand equality is to accept and leave unquestioned the patriarchal conception of citizenship that implies that women are or must become similar to men; while to insist that women’s different qualities, capacities and labour be respected and recognised as being contributory to a more fulfilling account of citizenship is to demand the impossible because such difference is essentially what malestream patriarchal citizenship excludes. The problem according to Pateman is that the category of the ‘individual’, while based on the male model, is presented as the universal form of individuality. Feminists must, she asserts, uncover such false singular universality by asserting the existence of two sexually differentiated forms of universality. For Pateman, the traditional malestream way of posing an alternative, where either the separation or the sameness of the sexes is celebrated, is caught within the structure of patriarchy and needs to be overcome by a new way of posing the issue of gender justice. This can be done through a conception of citizenship that recognises both the specificity of womanhood and the common humanity of men and women. Pateman therefore puts forward the idea of a ‘sexually differentiated’ conception of citizenship that would recognize women qua women, that is a conception of citizenship that would respect and recognise women as women with their different though equal qualities, attributes, bodies and

76 LAJWANTI CHATANI all that they symbolise. According to Pateman, this would entail giving political significance to the capacity that men lack, that is to create life, namely, motherhood. The capacity of motherhood, which is an essentially womanly capacity, is therefore posited as being equally relevant to the definition of citizenship as that which is usually considered the ultimate test of citizenship—a man’s willingness to fight, shed blood and die for his country. While both Pateman and Gilligan recognise the dichotomisation of the citizen into public bodies and private bodies—into (Kantian) free and equal individuals and into members of a (Hegelian) though gendered community of good—they fail to work out a complementarity. At times, they could be seen to be altogether ignoring or discarding the contestation. It is here and for this reason that one can recognise the importance and contribution of Mouffe’s conception of democratic politics. According to Mouffe, the problems with the liberal construction of the public/private distinction would not be solved by discarding it, but only by ‘reformulating’ or even by ‘transcending’ it. While Mouffe acknowledges that Pateman provides many very interesting insights into the patriarchal bias of the social contract theorists and the way in which the liberal individual has been constructed according to the male image, she considers her solution to be unsatisfactory. To quote Mouffe: […] despite all her provisos about the historically constructed aspects of sexual difference, her view still postulates the existence of some kind of essence corresponding to women as women. Indeed, her proposal for a differentiated citizenship that recognizes the specificity of womanhood rests on the identification of women as women with motherhood. There are for her two basic types of individuality that should be expressed in two different forms of citizenship: men as men and women as women.8

Mouffe argues that the remedy is not to replace the modern male category of the individual by a sexually differentiated bi-gendered conception of the individual and to bring women’s so-called specific tasks into the definition of citizenship. The remedy is also not to juxtapose two different principles of the engendered and embodied citizen. Such a remedy in fact fails to attend to the political, the politics of the private and the politics underlying this separation. For Mouffe, the limitations of the modern conception of citizenship should be remedied, not by making sexual difference politically relevant or by making citizenship sexist, but by constructing a new conception of

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citizenship where sexual difference would become effectively irrelevant. This, in turn, she argues requires the conception of a social agent as ‘the articulation of an ensemble of subject positions, corresponding to the multiplicity of social relations in which it is inscribed’.9 It would require recognition and non-recognition of sexual difference at one and the same time. Mouffe’s arguments on citizenship construct a political identity that is based on the political principles of modern pluralist democracy, that is, the assertion of liberty and equality for all. It would be the common political identity of persons who might be engaged in many different enterprises and with differing conceptions of the good, but who are bound by their common identification with a given interpretation of a set of moral–political values. On this account, citizenship is not just one identity among others, nor is it the dominant identity that overrides all others. Instead, it is an articulating principle that affects the different subject positions of the social agent, while allowing for a plurality of specific allegiances and for the respect for individual liberty. On this view, the public/private distinction is not abandoned, but is constructed in a different way. The distinction does not correspond to distinct spheres; ‘every situation is an encounter between “public” and “private” because every enterprise is private though never immune from the public conditions prescribed by the principles of citizenship.’10 The view that Mouffe proposes is clearly different from the liberal as well as from the communitarian one. It is not a gendered conception, but neither is it a neutral one. It recognises that every definition of a ‘we’ implies the delimitation of a ‘frontier’ and the designation of a ‘them’. The definition of a ‘we’ then always takes place in a context of diversity and conflict. Contrary to liberalism, which evacuates the idea of the common good and communitarianism which reifies it, Mouffe’s approach views the common good as a ‘vanishing point’—something to which we must constantly refer when we are acting as citizens, but one that can never be reached. To quote Mouffe: […] the common good functions on the one hand as a ‘social imaginary’: that is as that which the very impossibility of achieving full representation gives the role of a horizon which is the condition of possibility of any representation within the space that it delimits. On the other hand, it specifies what I have designated a ‘grammar of conduct’ that coincides with an allegiance to the constitutive ethico-political principles of modern democracy, namely liberty and equality for all.11

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Fracture 2: The Claims of Justice The second fracture, Fracture 2, that is located in the ongoing discourse on justice, is over the legitimate concern or claim of justice. This fracture is not entirely unrelated to the first. Intrinsically related to the way we construct the citizen-self, is the question of what we as citizens demand as justice. Put differently, what is a legitimate or substantive claim for justice? How do we understand justice? Like the conception of the self, this concern of justice appears to be riven by disunities. In the nineteenth century, the identity of the citizen-self and the guarantee of democratic citizenship were made just and legitimate by relating them to the claims of true representation. The guarantee of representation through the procedures of democracy made just the various claims of the State, as well as the category of citizenship. After the 1970s, with the publication of Rawls’ A Theory of Justice, an attempt was made to justify justice in terms of redistribution, so that a just order is now one that guarantees equal starting places through the process of the redistribution of burdens and benefits. Today, justice has gone beyond the claims of representation and redistribution, to embody, include and engage with the somewhat competing claim of recognition. Today we witness a remarkable proliferation of claims and struggles for recognition, which question the supposed neutrality of the liberal State as well as the inherent equality of liberal individual rights. Claims for recognition move many of the world’s social conflicts, from struggles for gender equality to efforts for the inclusion of ‘the other’, from battles for national sovereignty and sub-national autonomy to crusades for international human rights. Such widespread appeal to a common grammar is noteworthy as it indicates and symbolises a massive revival of the politics of status. Political practice is today increasingly poised on claims of recognition. Interestingly and somewhat regrettably, the surge in the politics of status appears to be accompanied by a corresponding decline in the politics of class. The language of economic equality, which was once the dominant language of political contestation, is less salient today than in the recent past. The demise of communism, the revival of free market ideologies and the rise of identity politics in both fundamentalist and progressive forms, are some of the developments that have collaborated to decentre and marginalise, if not stifle claims for egalitarian redistribution. The discourse of social justice, which was once centred on distribution, is

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now increasingly divided between claims for redistribution on one hand, and claims for recognition on the other. In terms of political culture then, we are confronted with a new configuration. In this configuration, the centre of gravity has shifted from redistribution to recognition. While this shift is salutary in some respects, the decline in the politics of class is distressing. For one, the shift from redistribution to recognition is occurring despite a stepping up of economic globalisation. Thus, status conflicts have become paradigmatic at precisely the moment when an aggressively expanding neo-liberal global capitalism is radically intensifying economic inequalities as well as questioning redistributive efforts. Consequently, struggles for recognition are being strengthened, just as accelerated migration and global media flows are fracturing and hybridising all cultural forms. In fact, some struggles do not respect such interaction; rather, they tend to encourage separatism, exclusion, chauvinism and intolerance. What does this mean for politics? For politics today, both in terms of theory as well as practice, claims for social justice seem increasingly to divide into two types. First and most familiar are claims for justice as redistribution, which seek a more egalitarian distribution of resources and wealth. Examples include claims for redistribution from the developed to the developing, from the North to the South, from the rich to the poor, and from the owners to the labourers. Then there is a second type of social justice claim in the ‘politics of recognition’. Here the goal in its most plausible form is a difference-friendly world, in which cultures other than the dominant culture are guaranteed equal respect, recognition and protection, and wherein assimilation to majority or dominant cultural norms is no longer the price of equal respect. Examples include claims for the recognition of the distinctive perspectives and values of ethnic, racial, religious and sexual minorities as well as of gender differences. But then how does Fracture 2 relate to Fracture 1? The terms ‘redistribution’ and ‘recognition’ have both a philosophical and political reference. Philosophically, they refer to normative paradigms developed by political theorists and moral philosophers. Politically they refer to families of claims raised by political actors and social movements in the public sphere. ‘Redistribution’ comes from the liberal (Kantian) tradition, which was richly extended by philosophers such as John Rawls, Richard Rorty and Brian Barry.12 Seeking to synthesise the traditional liberal emphasis on individualism with the egalitarianism of social democratic theory, they teased out new conceptions of justice that could justify social and economic redistribution.

80 LAJWANTI CHATANI The term ‘recognition’ in turn comes from Hegelian philosophy, specifically the phenomenology of consciousness, developed today most elaborately by Charles Taylor and Michael Sandel, among others.13 In this tradition, recognition designates an ideal reciprocal relation between subjects, in which each sees the other as its equal, and also as separate from it—the other as an equal outsider. Thus, recognition implies the Hegelian thesis often deemed at odds with liberal individualism, that social relations are prior to individuals and intersubjectivity is prior to subjectivity. The identity of the citizen thus depends on and defines the claims and concerns of justice. While the claims of redistribution and recognition have come to dominate present-day thinking on justice, these claims are often dissociated from one another, both intellectually as well as practically. Intellectually, those who consider redistribution as the remedy for injustice and domination remain disengaged from tendencies that consider recognition. Similarly, those who understand domination and denial to be a part of our social and cultural codes maintain an uneasy distance from demands for recognition. Proponents of the politics of redistribution insist that identity politics is counterproductive, rejects universalist norms and serves to divert attention from real economic issues. For them, the sole proper object and site of political struggle is the economy. Conversely, proponents of the politics of recognition insist that a difference-blind politics of redistribution can reinforce injustice by falsely universalising dominant group norms, requiring subordinate groups to assimilate to them and misrecognising the latter’s distinctiveness. For such theorists, the privileged political objective is cultural transformation. Practically too, the claims of redistribution and recognition remain disunited. Social movements and egalitarian activist tendencies that look to redistribution as the remedy for domination and exploitation are increasingly dissociated from tendencies that look instead to recognition of distinctiveness and difference. As the foregoing account suggests, we are effectively presented with an either/or choice: redistribution or recognition; class politics or identity politics; multiculturalism or social democracy? Must we abolish differences or should we celebrate them? Should we identify the citizen in terms of universal individualist moral considerations or accommodate the differences that make the private political? Should we support the argument for egalitarian distribution among free and equal individuals or should we reinforce the right of the group to the recognition of its differences. This situation exemplifies a broader phenomenon in the

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widespread rupture of cultural politics from social politics, of the politics of difference from the politics of equality. I once again choose to leave aside the question of which claim is worthier. Instead I argue that such rupturing of the equally worthy, though different, claims of recognition and redistribution in the ongoing discourse on justice hinders the possibility of working out a satisfactory response to experiences of injustice. Contemporary political theorising needs to repair both Fracture 1 and Fracture 2 as a precondition for arriving at a truly just conception of citizenship. I believe that a convincing method of repairing Fracture 2 is available in the writings of Nancy Fraser.14 According to Fraser, our present political reality is exemplified by a ‘decoupling’ of cultural politics from social politics, or the politics of difference from the politics of equality. Characterising this decoupling as flawed, Fraser begins to unpack the different though not necessarily conflicting claims, concerns and assumptions of redistribution and recognition. She unpacks four of such differences.15 First, the two claims assume different conceptions of injustice. Redistribution defines injustice in terms of ‘social and/or economic exploitation’ (that is having the fruit of one’s labour appropriated for the benefit of others), ‘economic marginalisation’ (that is being confined to poorly paid work or being denied access to income-generating labour) and ‘deprivation’ (that is being denied an adequate material standard of living). Contrarily, recognition understands injustice to be essentially cultural and rooted in social patterns of representation, interpretation and communication. On the recognition claim, injustice is experienced in terms of ‘cultural domination’ (that is being subjected to social patterns that are associated with another culture and that are alien and/or hostile to one’s own), ‘non-recognition’ (that is being rendered invisible by certain authoritative cultural practices) and ‘disrespect’ (that is being routinely maligned by dominant cultural patterns and practices). Second, the two propose different sets of remedies for injustice. While redistribution aims at ‘economic restructuring’—in the form of redistribution of income/wealth, reorganising division of labour and changing the structure of property ownership—recognition aims at ‘cultural remedies’—such as upwardly revaluing disrespected identities, recognising cultural divisions and transforming societal patterns. Third, the two assume different conceptions of the collectivity that experience injustice. For the redistribution theorists, collectivity is defined in relation to the market or means of production, so that the collective

82 LAJWANTI CHATANI subjects of injustice are ‘classes or class-like’. For recognition theorists, collectivity is defined and distinguished in terms of the lesser respect, esteem, prestige and privilege they enjoy relative to other social groups, so that the collective subjects of injustice are status groups. Fourth, the two assume different understandings of group differences. The politics of redistribution treats differences as unjust differentials. Consequently, such politics strives to abolish and not recognise group differences. In contrast, claims of recognition are premised on benign preexisting cultural variations that have then been transformed into an unjust hierarchy, which requires that we recognise group differences. Having identified the different and equally valid claims and concerns of justice by theories of recognition and redistribution, Fraser moves on to question the decoupling of these politics. She rightly argues that certain experiences of injustice and claims of justice can often fit neatly into categories of redistribution and recognition. However, such an understanding of justice provides little space for experiences of injustice that involve claims of redistribution as well as recognition. To quote Fraser, ‘some matters can be murky or two-dimensional incorporating both redistribution and recognition’.16 Then, injustices that follow from misrecognition can result into a system of maldistribution; alternatively, unjust distributive mechanisms can establish and justify accounts and instances of misrecognition. For instance, the ultimate cause of class injustice is the economic structure of capitalist society. But the resulting harms include misrecognition as well as maldistribution. Similarly, status harms that originated as by-products of economic structure may have since developed a life of their own. The decoupling of claims of redistribution from claims of recognition assumes that collective subjects of injustice are either classes or status groups, but not both, that the injustice they suffer is either maldistribution or misrecognition, but not both. It assumes that the group differences at issue are either unjust differentials or unjustly devalued variations but not both, that the remedy for injustice is either redistribution or recognition but not both. Gender, Fraser argues, and in fact most of our other social categories and identities, are two-dimensional, so that the claims made encompass redistribution and recognition.17 Gender-based injustices are in fact traceable to both, so that neither only a politics of redistribution nor a politics of recognition alone could be sufficient. Gender justice requires that we abolish as well as respect differences, that we redistribute as well as recognise.

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Mainstream political theories of justice regard distributive justice as a form of class politics while regarding claims of difference as identity politics. This common association, Fraser argues, is misleading.18 For one, they treat recognition and anti-racist movements as the whole story rendering invisible alternative currents dedicated to righting/correcting gender-specific, culture or race-specific forms of economic injustice. For another, they obscure the recognition dimension of class struggles which has never aimed solely at redistributing wealth. Finally, the equation of recognition politics with identity politics reduces what is actually a plurality of different kinds of recognition claims to a single type, namely, claims for affirmation of group specificity. Fraser goes on to suggest how ‘redistribution and recognition can go together despite their divergent philosophical provenances’.19 Her general thesis is that justice today requires both redistribution and recognition. Neither alone is sufficient. In her words, […] the emancipatory aspects of the two problematics should be integrated into a single comprehensive framework. Theoretically the task is to fashion out a two-dimensional conception of justice that can accommodate both defensible claims for social equality and defensible claims for the recognition of difference. Practically the task is to devise a programmatic political orientation that can integrate the best of the politics of redistribution with the best of the politics of recognition.20 (Emphasis added)

According to Fraser, instead of aligning redistribution and recognition with class politics and identity politics respectively, we need to treat them as ‘folk paradigms’ that offer distinctive though related perspectives on social justice. Treating redistribution and recognition as folk paradigms, and not exclusive and authoritative theories, would mean that when we place both together they do not seem to be antithetical, but mutually complementary. Thus, the paradigm of redistribution can encompass not only class-centred political orientations, but also those forms of feminism and anti-racism that argue and aspire for social and economic transformation as the remedy for injustice. The paradigm of recognition likewise can encompass not only movements aiming to revalue unjustly devalued identities—egalitarian cultural feminism, black cultural politics, gay identity politics—but also understand the economy and economic basis for this experience, for citizenship is not only a political identity; it is also an economic identity.

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Conclusion This chapter argues for a bonding of the supposedly competing conceptions of the citizen-self as individual and member of a community, and the corresponding claims of justice as redistribution and recognition. It contends that this contestation ought at once to be reconciled and accommodated in ongoing considerations of citizenship. The idea of the citizen as a self, free from subjugation, domination and denial, requires the equal positing of conceptions of individuated selves and situated selves, of just claims of representation, redistribution and recognition. Contemporary political theory would have to locate and strengthen arguments of such equal positing to empower the citizen as well as to address and overcome the present fractured debate on justice. Feminism provides the conceptual resources needed for such a theoretical enterprise. The central feminist category of gender involves a two-dimensional social differentiation. Neither simply a class nor a status group, it is a hybrid category rooted at once in the economic structure and the status order of society. Gender appears as a class when women are relegated to unpaid, reproductive domestic labour or when they are assumed to occupy pink-collar positions; it appears as a status group when they are misrecognised or denied the capacity of selfhood. Gender appears as individuated when women struggle against community sanctioned unjust and unequal practices. And then, it is manifested in collective terms when women seek the equal recognition of differences in place of a differenceblind justice. Gender blows up this whole idea of a fractured logic of justice. Here we have a category that is a compound of both status and class, of both individual and community. Here difference is constructed from both economic differentials and institutionalised patterns of cultural value. Here both maldistribution and misrecognition are fundamental. Gender injustice can only be remedied by an approach that encompasses both a politics of redistribution and a politics of recognition. The two-dimensional character of gender wreaks havoc on the idea of an either/or choice between the paradigm of redistribution and the paradigm of recognition, between the individual and the community. In fact when carefully considered, many of our identities appear as two-dimensional so that a singular perspective of justice becomes altogether unsatisfactory. In political theory today, the task is to envision a set of institutional arrangements and policy reforms that can remedy both maldistribution and misrecognition, that can encompass and harmonise both dimensions

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of social justice. Axes of subordination intersect one another in ways that affect everyone’s interests and identities. Only by looking to integrative approaches that unite redistribution and recognition, as well as identify the conception of the citizen-self as an individual and member of a collective, can we meet the requirements of justice at all. Contemporary discourses on justice are fraught with disunities which have come to define, if not disempower contemporary notions of citizenship. An approach that permits us to understand how the subject is constructed through different discourses and subject positions is certainly more adequate than one that reduces our identity to one single position— be it class, race or gender. This type of a democratic project is also better served by a perspective that allows us to grasp the diversity of ways in which relations of power are constructed. It helps us to reveal the forms of exclusion present in all pretensions to universalism and in the claims to have found the true essence of rationality. Indeed, the politics and possibility of feminist discourse contains the link between justice and citizenship. And, it is in strengthening this link that feminism would mark out its most distinctive contribution to the theory of a possible moral politics.

Acknowledgements This initial draft of this chapter was presented at the national seminar on ‘Contemporary Political Theory: Interdisciplinary Perspectives’ at the Department of Politics and Public Administration, University of Pune, Pune, on 9 and 10 March 2006. I thank the organiser of this seminar, Dr Mangesh Kulkarni, as well as all the participants for their valuable comments.

Notes 1. John Rawls, A Theory of Justice (London: Oxford University Press, 1971). 2. This argument of the State being essentially a ‘war-making institution’ is elegantly worked out by Philip Bobbitt. See Philip Bobbitt, The Shield of Achilles (London: Allen Lane, 2002). 3. See Will Kymlicka, Contemporary Political Philosophy (Oxford: Oxford University Press, 2002), pp. 284–319. 4. Chantal Mouffe, The Return of the Political (London: Verso, London, 1997), p. 83. 5. See Carole Pateman, The Sexual Contract (Oxford: Polity Press, 1988); Carol Gilligan, In a Different Voice: Psychological Theory and Women’s Development (Cambridge, MA: Harvard University Press, 1982); Susan Moller Okin, ‘Gender, the Public and the Private’, in David Held (ed.), Political Theory Today (Cambridge: Polity, 1991).

86 LAJWANTI CHATANI 6. 7. 8. 9. 10. 11. 12.

13.

14.

15. 16. 17. 18. 19. 20.

Mouffe, The Return of the Political, p. 79. Pateman, The Sexual Contract. Mouffe, The Return of the Political, p. 81. Ibid.: 82. Ibid.: 84. Ibid.: 85. See John Rawls, A Theory of Justice; Richard Rorty, ‘Postmodernist Bourgeois Liberalism’, in R. Hollinger (ed.), Hermeneutics and Praxis (Notre Dame: University of Notre Dame Press, 1985); Brian Barry, The Liberal Theory of Justice (Oxford: Oxford University Press, 1973). See Charles Taylor, ‘The Politics of Recognition’, in Amy Gutmann (ed.), Multiculturalism and the ‘Politics of Recognition’ (Princeton: Princeton University Press, 1992); Michael Sandel, Liberalism and the Limits of Justice (Cambridge: Cambridge University Press, 1982); Amy Gutmann, Identity in Democracy (Princeton: Princeton University Press, 2004); Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (Oxford: Oxford University Press, 1995). Nancy Fraser and Axel Honneth, Redistribution or Recognition? A PoliticalPhilosophical Exchange (London: Verso, 2003). Also see Nancy Fraser, Justice Interruptus: Critical Reflections on the ‘Post-Socialist’ Condition (New York: Routledge, 1997). Fraser and Honneth, Redistribution or Recognition? pp. 11–16. Ibid.: 19. Ibid.; Also see Fraser, Justice Interruptus. Ibid.; Also see, Fraser and Honneth, Redistribution or Recognition? Ibid.: 11. Ibid.: 9.

5 Group Identities and Rights: A Case for Theory beyond the Nation-state Arpita Anant

Introduction Broadly speaking, there are four types of studies about group rights and identities. Thinking about identities and rights of groups—notably minority/marginal groups—has concerned political theorists, sociologists and policy-makers alike. Such thinking is mainly attributable to moral concerns regarding the well-being of marginal groups and concerns that if the claims of these groups are not addressed in an appropriate manner, they may lead to tensions in the body politic.1 However, in cases where ethnic conflict has had international ramifications, issues of group identities and rights have been studied in a global perspective.2 More recently, studies have focused on the domestic impact of international norms through transnational advocacy networks, especially with regard to issues of human rights.3 Taking such analyses a step further, there have been studies of how local groups have in their turn, transnationalised their movements and in the process contributed to the vocabulary of international human rights and made it more representative of issues/claims relevant to their particular groups.4 Generally, studies in political science and sociology have focused on domestic factors influencing the identities and claims of minority groups at the cost of neglecting very pertinent international influences. Those looking at the international dimension of ethnic conflicts give

88  Arpita Anant less attention to equally important peace-time influences that may not necessarily cause conflict. There appear to be at least two limitations of the latter two types of studies. First, empirically, they tend to focus more on organised movements of groups in the contemporary period that perhaps obscure the heterogeneity of most group identities and claims. Second, conceptually such studies do not visualise their cases as instances of domestic–international interaction. As a result, there emerges a clear gap in the study of group identities and rights. Simply put, there are few studies that consider group identities and rights as being shaped by domestic and international influences, not only in times of conflict, but at all times, and also not just in the contemporary era of transnationalisation, but even in earlier eras such as the colonial epoch. With the aim of initiating such an exercise, this chapter advances the case for a study of the relationship between the external and domestic debates on rights. It looks at the Indian discourse on the rights of minorities, with particular reference to the Muslim minority and highlights those aspects of the discourse that have been influenced by existing international ideas, environment and debates. It does not attempt the intellectually challenging task of suggesting how political theory ought to incorporate such inputs; rather, it suggests why it should do so. It is thus a comment on the context of thinking about the rights of groups based on the manner in which minority groups think about their rights and identities. The other logical extension of this line of thinking, not explored here, is the argument for studying group identities and rights as a subject in International Relations (IR) and its theoretical implications for the discipline.5 The main argument of this chapter is that unless issues of group identities and rights are viewed conceptually as areas of domestic–international interaction, their understanding will remain partial and it will generate philosophical debates and policy options that may not be able to address the issues of the concerned group. Moreover, there is a need to look at groups, and not only organised movements, because even in the absence of organised transnational movements, groups may be fairly outward-looking in their outlook. Another point that this chapter attempts to highlight is that if one views a local identity in the light of its external interactions, it becomes clear that groups or certain sections of it, absorb the discourses, from not only ethnic/religious sources but also from more secular sources such as the human rights discourse. And finally, it argues that this shift in turn puts into question the exaggerated claims about the essential difference not only between the internal and external but also the Western and Indian contexts for dealing with religious diversity.6

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Transcending the Domestic–International Frontiers Thinking beyond the nation-state comes quite naturally to someone trained in the theory and methodology of IR. A key component of such learning is the interrogation of the domestic–international divide that has been at the core of thinking about ir. Several such writings have appeared consistently since the formal launch of the discipline of IR after the World War II. For instance, some scholars dwelt on the distinction between domestic and international realms and on the concomitant differences between political theory and IR theory.7 Others felt the need to study domestic politics, for according to them, it was impossible to understand the foreign policy of a nation-state, which was the key concern of IR, without focusing on the domestic sources of foreign policy.8 Alongside, there were those who focused on transnational phenomena that transcended the domestic– international divide.9 Some scholars encouraged normative studies in IR, which entailed applying domestic theories of justice to the international political and economic realms.10 Some went so far as to study domestic analogies in the normative proposals advanced as world order models.11 Several critical writings challenging the ontological and epistemological state-centredness of the dominant systemic neorealist theories of IR have made a strong argument for changing the sociology of IR, not only to include the study (and thereby empowerment) of the individual and other marginalised groups, but also to investigate the unitary state.12 Some evidence of transcendence of domestic frontiers is also evident in writings on political theory. In a re-reading of prominent political theorists, Howard Williams claims that political theory always comprised an ‘international’ element. He re-assesses the works of Plato, Aristotle, Augustine, Aquinas, Machiavelli, Hobbes, Rousseau, Kant, Hegel, Clausewitz and Marx from the perspective of IR.13 In a subsequent study, he points to Immanuel Kant’s characterisation of the secular Protestant ethic having universal application to all individuals everywhere, Nietzsche’s individualist philosophy that moved away from nation-centeredness and Hegel’s comparative assessment in arriving at the ‘norm’ of the state. Williams also applies Habermas’ idea of ‘law-making as an ongoing debate’ in the democratic society to the making of international law. He dwells on the manner in which models of democracy and freedom are influenced by international considerations. Commenting on international political theory, he points to the Grotian natural law thesis that brings

90  Arpita Anant together domestic and international viewpoints and John Locke’s extension of the ‘state of nature’ and the ‘labour theory of property’ to all nations. He also points to the inadequacy of nation-centric conceptions of justice in political theory in post-communist East Europe.14 Williams asserts that political theory is being pressed in the international direction by political and social circumstances and this has crucial implications for it and for IR theory. International politics has become increasingly involved in domestic politics especially since the end of World War II. This is so because of institutions such as the UN, the IMF, the World Bank and the European Coal and Steel Community.15 Continuing his argument, Williams points out that political scientists and sociologists like David Held and Anthony Giddens have come to conceptualise society globally. Among those who study political ideology, the international dimension is covered in the study of the environmental movements. There is a recognition that political theory has come to the aid of IR so that Morgenthau uses Hobbes for his basic assumptions about realist IR.16 Hobbes himself has said that the state of nature faced by the individual is encountered by the state in international society. Also, his ‘laws of nature’ actually lead to peace rather than anarchy. IR has come to aid political theory so that James Rosenau talks of the post-international society that is not state-centric, but rather multi-centric. Such a society witnesses centralisation due to interdependence as well as decentralisation due to the rise of sub-groupism.17 One of the issues that Williams identifies as having truly transcended domestic concerns is the issue of rights.18 Indeed, the active evolution of the international law of human rights and the use of human rights issues as tools of foreign policy are two key ways in which the discourse on rights has been studied as an issue in IR. The foregoing discussion entails two related questions that come to the mind of a student of IR. Do international debates, ideas and environment impact on or interact with domestic debates and ideas on rights? And if yes, then has political theory which is centrally concerned with rights, taken sufficient cognizance of this impact or interaction? Constructivist writings in IR have studied how human rights norms become a part of the domestic discourse. While such writings have their strengths and weaknesses that need not be discussed here in detail, they represent an attempt in IR to study domestic–international interactions.19 This chapter begins with a look at instances in the evolution of Indian Muslim identity, which reveal an explicit engagement with an existing external discourse or an external dimension/referent to their political

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mobilisation for rights. This is not to devalue the mutually enriching cultural/religious interactions that Indian Islam and its variants have had with the Indic civilisations and cultures. The aim of this chapter is merely to demonstrate that ‘external’ ideas and discourses have become integral to the discourse of rights and hence the identity of a community.

Attempts at Defining the Indian Muslim Identity in the Nineteenth Century The form of Islam on the Indian subcontinent has always been characterised as similar to and yet different from Turkish/Arab Islam. Historically, the advent of Islam in India has been regarded as an event in the larger history of the spread of Islam beyond the Arab world. In the eighth and the ninth centuries, the Turks are believed to have revived the ‘ebbing political fortunes of Islam’ and Turkish Islam was established in India.20 By the sixteenth century, it was felt that in its interactions with the civilisation in India ‘Islam had “deviated” much from its original moorings and that there was need for its Reformation and rejuvenation’.21 The growing impact of Sufism was sought to be curtailed by Syed Ahmad Sarhindi, who stressed the importance of the Shariat against Sufi mysticism.22 Two centuries later, the disintegration of the Ottoman and Mughal empires resulted in another phase of rejuvenation. This time the movement in Arabia was led by Muhammad-bin-Abdul Wahab and by Shah Waliullah in India.23 Wahabism in India was developed by Syed Ahmad Barelwi in his Mohammadi order and it added the requirement of an ethical code of conduct to the existing Sufi emphasis on disciplining and training of the soul for spiritual bliss.24 While there were similarities in the Arabian and Indian versions of Wahabism, it has been argued that the resemblance was more due to the common sources on which the reform movements were based, rather than a result of one following the other.25 Both borrowed from the Quran and Hadis, proclaimed monotheism, and took a stand against intercession and innovation.26 However, scholars have also highlighted significant differences between the two movements. Indian Wahabism has been characterised as being aimed at the political emancipation of the country, while Arabian Wahabism was geared toward socio-religious reform. Moreover, later Indian Wahabism developed a belief in the coming of the Saviour (Mahdi) and therefore an alliance with the Mahdavi movement. This element was totally lacking in the Arab variant.27

92  Arpita Anant Under British colonialism, the legacy of being identified with the larger world of Islam had resulted in a peculiar predicament by the midnineteenth century. The British who saw Indian Wahabism as drawing on Arab Wahabism fitted Indian Islam in its larger image of the stereotypical Orient. They therefore perceived the ‘revolt’ of 1857 as having a ‘foreign’ motivation, the impetus for which lay in Arab Wahabism. In order to correct this misunderstanding, the most prominent scholar/leader of Muslims at the time, Sir Syed Ahmad Khan, gave considerable attention to redefining the Indian Muslim identity by denying any collaboration between the larger world of Islam and other anti-British imperialist powers on the one hand and India’s large number of Muslim revolutionaries on the other. In his ‘Asbab-e-Baghawat-e-Hind’ or ‘Causes of the Indian Revolt’, Sir Syed strongly refuted any external support to the Indian Muslims. In addition to arguing that the sporadic nature of the rebellion proved that there was no widespread conspiracy, he said: The Hindustanees have no conception of the views of Russia; and it is not probable that they would league themselves with her. Nor can I think that they would ever be likely to receive any help from Persia. As between Roman Catholics and Protestants, so between the Mussalman of Persia and Hindustan, cordial co-operation is impossible…[S]urely if such were the case, it is very strange that during the Russian and Persian wars, Hindustan should have remained completely tranquil. Nor, on the other hand, is it less strange that while Hindustan was in flames, there should have been in those countries no visible stir whatever.28

Sir Syed also wrote extensively on the issue of the relationship of Islam and Christianity in the context of India, but as a response to the worldwide defamation of Islam by the colonial powers. He criticised Hunter’s misrepresentation of ‘Indian Mussalmans’ as being a source of threat to the British power. He claimed that Hunter’s book was based on the British experience with Bengal Muslims.29 He says, ‘…Dr. Hunter’s work represents Wahabism and rebellion against the British Government as synonymous…[I]n my opinion, what the Protestant is to Roman Catholic, so is the Wahabi to other Mohammedan creeds.’30 He also clarified that the post-1830 Wahabi Jihad was directed against the Sikhs rather than the British.31 His argument was that as per Merghanani’s work on Hanafi jurisprudence, the Hadeya, Muslims may live as mustemun or the protected people, and this was their position under the British. So conditions of Jihad did not prevail in British India and it was not necessary for Muslims to live under Muslim rule.32 In addition,

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Sir Syed cited European precedents regarding the mutual compatibility of Islam and Christianity and the spirit of tolerance in Islam.33 Thus, central to the articulation of Indian Muslim identity by Sir Syed Ahmad Khan in the nineteenth century was the denial of its links with the outside world of Islam. This anti-pan-Islamism and the other political positions of Sir Syed were guided by his concern with Muslims not being perceived as anti-British. Thus while he considered Hindus and Muslims as two nations (quams) belonging to Hindustan, he also urged the Muslims to stay away from the Congress as he felt that the Congress would eventually work against the British, and he did not want the Muslims to be in an anticolonial association. In the later nineteenth century, Syed Ahmad Khan tried to inculcate a minority consciousness among the Muslims, but this was countered by Badruddin Tyabji’s appeal to the Muslims to participate in the national movement on the Congress platform.34

Pan-Islamism and Muslim Rights, 1900–45 The strongest critiques of Syed Ahmad’s anti-pan-Islamism came from Ameer Ali, Sir Aga Khan and Jamaluddin al-Asadabadi ‘al-Afghani. Afghani felt that Ahmad Khan’s ideas were a reflection of his servility to the British and would isolate Indian Muslims from the Dar al-Islam.35 Afghani became the symbol of pan-Islamism for the young Muslim leaders of the twentieth century, including Mohammad Ali, M.A. Ansari and Maulana Abul Kalam Azad. The pan-Islamism of these leaders, as well as poets Altaf Hussain Hali, Shibli Nomani and Mohammad Iqbal, was discernibly anti-imperialist.36 The demand for separate electorates for Muslims came from these leaders espousing pan-Islamism. Ameer Ali and Aga Khan were instrumental in mobilising British public opinion in favour of India’s Muslims. Ameer Ali established the London Muslim League in 1902, which took the lead in articulating the Muslim demand for separate representation.37 Yusuf Abbasi has argued that: Muslim historians generally tend to laud the Simla Deputation for achieving separate representation. But this facile assumption is farthest from fact. At best, the Simla Deputation made a declaration of intent and was by no means a concrete achievement. The protracted battle for separate representation was fought in London and the real credit primarily belongs to Syed Ameer Ali and the Aga Khan—the motive force of the London Muslim league.38

94  Arpita Anant As a domestic extension of a pan-Islamist impulse of the movement of Indian Muslims in UK, Muslim leaders led by Viqar ul-Mulk submitted a memorandum to the Viceroy Lord Minto to secure separate electorates for Muslims in order to enable them to overcome inadequate representation of the community in the public sphere, that had resulted from the policy of nomination rather than election of Muslim representatives. The memorandum stated: […] we cannot help observing that the representation thus accorded to us has necessarily been inadequate to our requirements and has not always carried with it the approval of those whom the nominees were selected to represent….39

Therefore, Muslim leaders demanded elected representation in the judiciary, municipal and district boards, senates and syndicates of universities, and provincial and imperial legislative councils. As a result of such mobilisations, the All India Muslim League was formed in 1906: (a) To promote among the Mussalmans of India feelings of loyalty to the British Government and to remove any misconceptions that may arise as to the intentions of Government with regard to any of its measures (b) To protect and advance the political rights and interests of the Mussalmans of India and respectfully to represent their needs and aspirations to the Government (c) To prevent the rise among the Mussalmans of India of any feelings of hostility towards other communities without prejudice to other objects of the League.40

The next discernible external landmark that became crucial to defining the Indian Muslim identity was the pan-Islamic Khilafat Movement. The leaders of the Lucknow Pact of 1916 between the Muslim League and the Congress, namely, the Ali Brothers, Mohammad Ali Jinnah and Mahatma Gandhi, together with new leaders like Maulana Abul Kalam Azad, led the non-cooperation and Khilafat movements in the early 1920s. Thus in a span of 20 years, certain sections the Muslim intelligentsia had made a clear break with the early wariness towards pan-Islamism to openly express solidarity with the Turkish Sultan. The Khilafat movement against the British ill treatment of the Sultan of Turkey may be considered as the foremost instance of the pan-Islamism of India’s Muslims in the pre-independence period. Although there were considerable differences among the different Muslim communities regarding the legitimacy of the Turkish Khalifa, with both the Barelwis and Deobandi ulama rejecting the Sultan’s claim to Khilafat, the movement was carried forward by Abul Kalam Azad.41

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It is important to note that the development of a ‘national’ consciousness among India’s Muslims was a gradual process that coincided with the rise of their pan-Islamist consciousness.42 And it is equally important to keep in mind the argument made by Mushirul Hasan that the pan-Islamism that was propounded by the Muslim intelligentsia remained firmly grounded in the context of Indian nationalism.43 This is most evident in the thought of Mohammad Ali. In his paper, The Comrade (1912–1915), he stated that the aim of starting his paper was ‘…to prepare the Mussalmans to make their proper contribution to territorial patriotism without abating a jot of the fervour of their extra-territorial sympathies which is the quintessence of Islam.’44 Elaborating on the reason for involvement in the Khilafat movement, he said: But the temporal losses of Turkey which we were advised by Europe to ‘cut’ touched a peculiar chord in or sub-consciousness, the chord of religion; for the ruler of Turkey was the Khalifa or successor of the Prophet and Amiral-Mumimin or Chief of the Faithful, and the Khilafat was as essentially our religious concern as the Quran or the Sunna of the Prophet.45

In the words of Mohammad Ali, the impact of international politics on India’s Muslims was crucial in this case as it helped coalesce the different sections of Muslims in the Indian society on a common platform. To quote Ali, ‘The temporal misfortunes of Islam, therefore drew Muslims to their religion as if inevitably and the wedge that Western education had seemed to insert between the ranks of the religious, and the men of the “New Light” vanished as if by magic.’46 A prominent Muslim leader who emerged during the Khilafat movement was Abul Kalam Azad. Between 1913–16, Azad was a pan-Islamist for whom the political struggle for freedom was a religious obligation. However by the 1920s, Azad’s views had changed considerably. To quote Madan, ‘Citing the example of the Prophet Mohammad, who had entered into a covenant with the Jews of Medina, Azad envisaged a similar “single nation” (ummah al wahidah) of Muslims and Hindus in India.’47 Interestingly, initially Azad’s new political philosophy of pluralism was founded on a Quranic basis, which he interprets as speaking for the one-ness of humankind and therefore the unity of faiths.48 Later, Azad characterises this pluralism as being the defining characteristic of the cultural history of India. The final instance of the use of the external in the era under consideration was Jinnah’s call for a separate Muslim nation. Whereas the idea of Hindus and Muslims as two nations had been part of the Muslim discourse since the time of Sir Syed, the idea that the two nations should be embodied in

96  Arpita Anant two states was pronounced only in the Lahore Resolution of 23 March 1940.49 In his Presidential Address to the Lahore Session of the Muslim League, Jinnah argued that since in the 1920s, Lala Lajpat Rai had stated that his fear of granting special rights to Muslim minorities was due to the fact that ‘seven crores in Hindustan plus the armed hosts of Afghanistan, Central Asia, Arabia, Mesopotamia and Turkey shall become irresistible, Muslims had been considered as a separate nation rather than a minority’.50 Drawing on historical examples from the international context, Jinnah emphasised why two nations could not live together in one state: History has presented to us many examples such as the Union of Great Britain and Ireland, of Czechoslovakia and Poland. History has also shown to us many geographical tracts, much smaller than the sub-continent of India, which otherwise might have been called one country, but which have been divided into as many states as there are nations inhabiting them. The Balkan Peninsula comprises as many as seven or eight sovereign states. Likewise, the Portuguese and the Spanish stand divided in the Iberian Peninsula. Whereas under the plea of the unity of India and one nation, which does not exist, it is sought to pursue here the line of one Central Government, when we know that the history of the last 12 hundred years has failed to achieve unity and has witnessed, during the ages, India always divided into Hindu India and Muslim India….Muslim India cannot accept any Constitution which must necessarily result in Hindu majority Government….Mussalmans are a nation according to any definition of a nation, and they must have their homelands, their territory and their state.51

It is interesting to note that while considerable differences had developed among the Congress Muslim leadership and Muslim League leadership with regard to the future status of the Muslims, their pan-Islamist concerns continued to coincide. Moreover, even though Jinnah had moved from a pro-Congress to a pro-Pakistan stance, his pan-Islamist concerns remained as such. Thus, the issue of dismemberment of Turkey and that of the weakening of the position of Arabs in their control over Palestine remained among his topmost concerns.52 Muslim League members did not participate in the early Constituent Assembly debates on the rights of minorities.53 However, their leader Chaudhuri Khaliquzzaman was present during the debates.54 The most pressing Muslim demand had been for separate electorates. The Shia Muslims, who were represented by the Shia Political Conference, under the leadership of Ali Zaheer and later Tajmul Husain, supported joint electorates without reservation and weightage.55 The Advisory Committee on minority rights decided that Muslims, along with Scheduled Castes,

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would be given reservations in contesting elections in proportion to their population, but they would not have separate electorates.56 However, the composition of the Constituent Assembly changed after the Partition, and in the wake of the Partition riots, the whole discussion on minority rights took a significant turn. The idea of secularism was promoted as was that of nation-building and in this ethos, most leaders of minority communities agreed not to press for special representation.57 The Nationalist Muslims led by Maulana Azad favoured reservations for minorities. But finally, the representatives of all sections of Muslims gave up their long-standing demand for reservation of seats in legislatures as well as services.58 One finds no references to international discourses on rights of minorities, as had been seen in the case of presentations made by representatives of the various Christian denominations, or even the Scheduled Castes and the Sikhs. This was perhaps due to the turbulent political circumstances and/or due to the fact that Jinnah had made the most forceful argument using the international discourse in calling for a separate nation for the Muslims, and this had made the other leaders refrain from making any further references to anything remotely extra-territorial.

Indian Muslims in the Post-Independence Years The following is a brief account of the main developments in the contemporary history of Indian Muslims. Despite having opposed the creation of Pakistan, the secular state that emerged after Independence was regarded by leading Muslim organisations as ‘contrary to fundamentals of Islam’.59 According to an official publication of Jamaat-i-Islami, the modern Indian state was irreligious.60 By 1970 however, the Jamaat had accepted the idea of the secular state since it was preferable to a totalitarian or fascist state. The idea of a contract between Hindus and Muslims was proposed by the Jamiyat al-Ulama.61 This was also reflected in the Muslims voting for the Congress in the first three general elections. Attempts to revive the Indian counterpart of the Muslim League was unsuccessful in North India since most of the prominent leaders had left for Pakistan. However, the Muslim League survived in South India due to a variety of reasons: (a) much of its leadership stayed on in India, there were no riots and the majority did not perceive the Muslim League as a threat; (b) the low threat perception was also due to the distance

98  Arpita Anant from Pakistan and Bangladesh; (c) Muslims in the South had adopted the local languages and so there were no barriers to communication and no perceived need for structural assimilation.62 A Bombay attorney, Saif T.B. Tyabji played a prominent role in the rejuvenation of the AnjumanI-Islam, which was dedicated to education and economic regeneration and thence political awakening of the Muslims.63 A prominent Congress leader, Syed Mahmud made some attempts to organise Muslims on the issue of employment in the public and private sectors, representation in legislature and government, communal bias in textbooks and the loss of Muslim life and property during riots. The Muslim Convention was revived in 1961 and in August 1964, at a Muslim leaders’ convention at Lucknow, a united front of Muslim organisations was set up and called the All India Muslim Majlis-iMushawarat, led by Abdul Jalil Faridi. Both these bodies however worked with a pro-Congress attitude.64 However, even in Bihar and Uttar Pradesh, the Majlis did not fare well in the 1967 elections and was defunct by 1969.65 While the Majlis tried to construct a Muslim identity around ‘endangered’ symbols of Muslim identity such as the status of Urdu, Aligarh Muslim University and Muslim Personal Law, the Tablighis promoted an alternative vision, more spiritual and distanced from such ‘instrumentalities’.66 Since the mid-1960s, Muslim groups in different parts of the country woke up to their continual marginalisation and discrimination, in addition to being targets of communal violence. Communally oriented groups such as, the Jamaat-i-Islami of Kashmir, the Ittehadul Muslimeen of Hyderabad and the Indian Union Muslim League gained cadres due to the rise in communal violence on the issue of cow protection and Hindi–Urdu controversy, as well as the economic weakness of the community due to official neglect and discrimination and the consequent loss of the Congress base.67 This was also the period of the involvement of the RSS–Jan Sangh in denouncing Indian secularism of the Congress variety and calling for the ‘Indianising’ of Muslims. The 1970s were not witness to any big communal riots, but during the 1980s, nearly 4,000 people lost their lives in communal riots.68 The Meenakshipuram conversion of 1981 triggered many incidents of communal riots during the decade. It was no mere coincidence that these riots happened in towns where Muslims had made economic progress through their traditional and entrepreneurial skills. This economic resurgence was portrayed as rise of ‘Islamic fundamentalism’ with links to the prosperity of West Asia.69

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Conservative elements were also strengthened in the wake of the call for a uniform civil code. The Jamaat-i-Islami, Tablighi Jamaat and Jamiyat al-Ulama took the lead in this sphere. In 1974, the All India Muslim Personal Law Board (AIMPLB) was set up to monitor any changes that may be brought in the Sharia.70 In the wake of the Shah Bano controversy in 1986, the AIMPLB influenced the government to adopt the Muslim Women (Protection of Rights on Divorce) Bill, which was a step in the wrong direction as far as women’s rights were concerned.71 The controversy over the Babri Masjid led to further strengthening of leaders such as Syed Shahabuddin, Abul Hasan Nadwi, Sulaiman Sait and Salahuddin Owaisi. In 1987, Syed Abdullah Bukhari, Shahi Imam of the Jama Masjid, called on the Muslims to enter the premises of the historical monument and offer prayers at historical monuments that had been under the charge of the Archeological Survey of India.72 In constructing a post-colonial identity for themselves, Indian Muslims have looked to the external environment in some instances not only for restructuring their relation with the Indian state, but also for internal reform related to the community. In 1978, the National Minorities Commission was divided into the Commission for Linguistic Minorities and the Commission for Religious Minorities. Meanwhile, in the United Kingdom, the Commission for Racial Equality was accorded a statutory status and given the powers to conduct investigations into incidents of discrimination against racial minorities. Muslim leaders and the members of the Commission often cited the example of the Commission for Racial Equality as worth replicating in India.73 However, the members considered adapting it to the existing constitutional framework of India. The statutory Commission, they said, must derive its legitimacy and sanction directly from the Constitution. Further, they wanted it empowered to conduct formal investigations and act in a quasi-judicial capacity in terms of the provisions of the Commission of Enquiry Act, 1952. This longstanding demand was realised in 1993 with the setting up of the National Minorities Commission (NCM), a statutory body with quasi-judicial powers in all matters related to minorities except criminal proceedings. A second area in which an existing external discourse has been invoked has been that of personal law reform. It has been argued that the minority position of Muslims has led them to resist reform of personal law, which therefore, is perhaps the most retrogressive as compared to countries in which Muslims are in majority.74 However, in the wake of the Shah Bano controversy, Muslim women’s groups lobbied for reform in personal law based on progressive changes in Muslim countries. In relation to personal

100  Arpita Anant law, Asghar Ali Engineer, a leading scholar proposed the codification of Muslim marriage and family laws based on the Pakistani model in the form of the Family Law Ordinance promulgated by the Government of Ayub Khan, as prepared by a seven-member Commission on Marriage and Family Laws.75 More recently, he has written under the auspices of the international non-governmental organisation (NGO) called Women Living Under Muslim Laws, making the argument that the issue of personal law cannot be seen merely as that of the Muslim community but rather has to be seen as an issue of gender justice.76 Arguing along similar lines and defending the right of Muslims to their personal law, Tahir Mahmood cites the instances of Yugoslavia, Greece, the Soviet Union, China, Cyprus, Philippines, Ghana, Uganda, Thailand, Singapore, Burma and Sri Lanka as countries where Muslims form dominant religious minorities. It was only in the Central Asian republics after the Bolshevik revolution, and in China and Philippines after 1969, that Islamic laws were forbidden. In all other countries, the Islamic law remains as such or is applicable with some reforms.77 Moreover, he says that minorities in Muslim countries have been allowed to adhere to their personal laws. Change in Muslims personal laws in keeping with reforms in Muslim countries is important, but this does not necessarily mean standing in opposition to a common civil code, since there was recognition among progressive Muslim lawyers that a common civil code would not be a Hindu civil code.78 A third manner in which the external has become internal to the debate on rights of Muslim minorities is in the form of the involvement of overseas Indian Muslims, who have supported Muslim causes and concerns in India. Through their organisations, the Indian Muslim diaspora have acted as pressure groups in international forums as well as the domestic arena. Notable among them is the Indian Muslim Federation of the United Kingdom that was established in 1969 to promote educational, social, cultural, economic, political and religious activities of Indian Muslims. The Federation proclaimed as its objective the fulfilment of the UN Charter of Human Rights and the protection of minority rights in all countries, to resist oppression and exploitation in all its forms, and work for international peace and justice.79 Over the years, the Federation has been urging successive Indian governments to ameliorate the scourges of Muslims in India. In the aftermath of the massacre of Muslims in Nellie in Assam on 27 February 1983, it adopted the London Resolution. In this the Federation resolved that the crimes against Muslims were crimes against humanity, and called upon the

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governments of other countries, the UN and the international community to exercise their moral and political influence to bring an end to this gross violation of human rights in India.80 The Chairman of the Federation, Md Khan, addressed a letter to the Prime Minister of India dated 3 November 1982, urging him to prevent communal riots in the country.81 Another intervention of a different nature was the Federation’s letter to Prime Minister V.P. Singh dated 7 December 1989, expressing its disapproval of the appointment of Arif Mohammed Khan in the Cabinet. The Federation felt that he was not the best representative of the Muslim community in India and therefore should be replaced.82 On the first anniversary of the demolition of the Babri Masjid, the Federation presented a memorandum to the Prime Minister, urging him to release Muslims wrongfully detained under the Terrorist and Disruptive Activities (Prevention) Act (TADA), preventing anti-Muslim riots and securing proportional representation for Muslims in the armed forces, police, paramilitary forces and government services.83 Another organisation of Indian Muslims in the USA, the Consultative Committee of Indian Muslims (CCIM), Chicago, also played a similar role. In addition to liaising with Muslim associations in other parts of the world where Indians were in considerable numbers, the Committee played a crucial role in strengthening the All India Muslim Majlis-e-Mushawarat.84 The CCIM gave a major contribution to the Fund for the Education and Rehabilitation of Riot Affected Children established in October 1979 by Syed Shahabuddin.85 In a similar vein, the Association of Indian Muslims of America, Washington DC, submitted a memorandum to the National Human Rights Commission on 24 June 1995 asking for the release of those TADA detainees who were not proved guilty, legal action against the Shiv Sena for provoking the Bombay riots and taking action on the inquiry reports pertaining to communal riots.86 A fourth variant of the external referent is the adoption of the human rights discourse by some Muslim activists who see a tremendous potential in this discourse, especially for Muslim minorities, whose every demand is perceived as being communal.87 Along with Asghar Ali Engineer, Iqbal Ansari has been one of the pioneers in portraying Muslim rights as human rights. The various issues that have been taken up by him over the years are those of giving proper recognition to Urdu as a minority language, autonomy of minority institutions, the issue of reservation for Muslims in government jobs and the violence against minorities in communal riots. In a memorandum submitted to the Constitution Review Committee in 2000, the Minorities Council of India, headed by Ansari justified all its

102  Arpita Anant demands for reforming the Indian constitution based on the international declarations on human rights.88 Thus, the right of minorities to special protection was defended, based on the judgement of the Permanent Court of International Justice in the Albania Schools Case of 1935.89 This and the UN Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities (1992) were stated as the main reasons for special protection as a basic requirement for equality and as not amounting to discrimination. Article 27 of the Constitution was cited for making provisions for protection of cultural rights of minorities, while Article 4(2)(3) of the 1992 Declaration mentioned above was made the basis of the claim to make it obligatory for the state ‘to create conditions favourable for preservation and development’ of the right to culture.90 The constitutional provision for protection of minority languages under Articles 347 and 350A were presented as being inadequate, and therefore in need of being strengthened, especially with regard to right to education in the mother tongue at the primary level based on international instruments and UNESCO declarations.91 Interestingly, reminiscent of the arguments made by representatives of various disadvantaged/minority communities, these activists have now called for representation in legislatures and all elected bodies, based on similar electoral practices in West European democracies, Northern Ireland and the Mauritius. They have cited the recommendations of the NCM for protection of minorities during communal riots from abuse of police power, one of which was based on limiting the use of force and firearms by the law-enforcement agencies following the UN Code of Conduct and Basic Principles on Use of Force and Firearms by Law Enforcement Officials of 1979 and 1990.92 Several cases of communal riots have been brought to the attention of the UN Human Rights Committee by the Amnesty International. However, for the first time in the case of the Gujarat carnage (2002), the language of international human rights law has been used to characterise and condemn it as genocide.93 And finally, there is a wide array of external reactions to the persecution of Muslim minorities in India. While many of them are from the Muslim states or Muslim organisations in other states, others are from governments expressing concern over the violation of human rights in India. The Nellie massacre provoked strong reactions from the Kuwaiti National Assembly that passed a resolution condemning the Assam killings.94 A similar reaction came from the Muslim Community Relations Council of New York, which in a memorandum to the Secretary General of the Un

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urged the UN to send a fact finding mission to Assam and give generous aid through its agencies such as the United Nations Children’s Fund (UNICEF) and United Nations High Commissioner for Refugees (UNHCR).95 The Secretary General of the World Assembly of Muslim Youth issued a statement condemning the misrepresentation of the Quran by a New Delhi Metropolitan Magistrate in a ruling. In this case the court had remarked that the verses in the Quran comprised ‘orders of envy, bad blood, hatred, conflict, loot and murder and were responsible for riots between Muslims and non-Muslims in India and until such verses are expunged from the Koran, riots could not be stopped’.96 According to Imtiaz Ahmed, to the limited extent that pan-Islamism was regarded as the defining feature of India’s Muslims before independence, such transnational linkages as have been described above, have now taken the place of pan-Islamism.97 Also, one must bear in mind that many of these external influences recorded here are in vogue among the more liberal intelligentsia among the Muslims, while the more conservative elements perhaps still continue to be fairly inward-looking or even attempt to define Muslim identities in a more religious/spiritual manner.98

Contextual Consciousness in Thinking about Group Identities and Rights Contemporary Indian thinking on the rights of groups, notably religious groups, has taken place in the language of secularism, individual versus group rights in liberal democracy, communitarianism and liberal multiculturalism, all of which have been given a nuanced interpretation in the Indian context. A second set of writings focuses on Indian Muslim identities, much of which is about the local influences shaping these identities. Such writings offer valuable insights into the sources identities and rights in the Indian context. Gurpreet Mahajan provides a good account of the problems generated by the constitutional protection given to the rights of various groups in the country. Based on an analysis of jurisprudence relating to the autonomy of cultural/religious groups, she argues that the context in which such protective measures were included in the Indian Constitution has been detrimental to the rights of individuals. Since many of these provisions were meant to ensure inter-group equality, the whole issue of intra-group equality in general and of gender equality in particular, was totally ignored.

104  Arpita Anant This is in contrast to the West where the issue of group rights vis-à-vis other groups came up when the issue of rights due to every individual in a liberal democracy had already been resolved. She also argues that the discourse on affirmative action has changed from one aimed at overcoming exclusion (of the ex-untouchables) to that of under-representation of these groups, religious minorities and women. In other words, there is a move from inclusion to adequate representation.99 She also argues that the idea of group rights, which was intended to be used in favour of disadvantaged minority communities, is now being used by the majority to demand similar rights.100 In a later work, commenting on contemporary western liberal thinking on multiculturalism, Sheth and Mahajan argue that since the demand for minority rights is coming primarily from immigrant groups and indigenous peoples, it is their concerns that are central to these writings.101 They assert that since these communities are adequately represented in the social and political arenas, they are merely asserting a right to their culture that is being devalued and marginalised by the majority/national culture. In the Indian context, however, the struggle is not limited to cultural rights and therefore the situation is far more complex. They also feel that the Western understanding of the issue of marginalisation and concerns of minorities is limited. One, the focus is mainly on cultural devaluation, two, it ignores the construction of national hegemonies within the state and does not conceive of the nation-state as a plural entity and three, it believes that the preservation of minority cultures would solve all their problems.102 Rajeev Bhargava has compiled a representative collection of writings comparing and contrasting Indian secularism with its Western counterparts.103 The growth of communal violence has led many a thinker to denounce the very ideal of secularism. Some of the strongest critiques of the Indian doctrine of secularism have come from the ‘communitarian’ thinkers in India.104 T.N. Madan and Ashis Nandy may be considered the foremost critics in this regard. Madan traces the origins of the idea of secularism to the Enlightenment view of religion as being irrational. However, this goes against the Indian experience of religion, which is integral to the life of people. So the modernist/scientific separation of the state and religion took away from the public sphere the voice of sanity that religions could provide, which in turn has led to increasing communal violence.105 Ashis Nandy argues along similar lines and contends that modernity produces religion as an ideology, which is generally used for protecting

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parochial political and socio-economic interests, eclipsing its character as a faith, which allows for pluralism. The idea of secularism is also produced simultaneously to meet the challenge of this ideology and run the state along scientific lines. The public realm thus becomes an arena of conflict between religion and science; thus secularism should be abandoned.106 Partha Chatterjee on the other hand calls for rejection of secularism for the very idea of the separation of the state and religion can now be used by the resurgent Hindu Right to deny religious liberty to minorities. For Chatterjee, the best hope for the minorities lies in promoting the idea of toleration of religious diversity with a considerable emphasis on internal democratic norms.107 Sarah Joseph criticises Madan, Nandy and Chatterjee for overemphasising this distinction between ‘indigenous’ and ‘Western’, since rationalism has existed with religion in India as well as in the West, and for not associating secularism with other enlightenment ideals of liberty and equality.108 According to Joseph, in addressing themselves to the issue of diversity, communitarians have criticised the homogenising tendencies of the post-colonial state and argued that they are a product of the imposition of alien ideas by a westernized elite. She argues that today even the subaltern strata are not rejecting elite nationalism; instead they are trying to appropriate and re-fashion it in their own terms.109 Making a distinction between Western communitarians and their Indian counterparts, Joseph argues that while the two are similar in their concern for diversity and community identity and their critique of modernity, Indian communitarians would differ from their western counterparts ‘in their insistence that colonialism, imperialism and racism were also constitutive of modernity’.110 Thus the ‘political project’ of the Western communitarians is aimed at overcoming the alienation and individualism of modern life by rebuilding the networks in the community and creating a shared moral universe.111 Indian communitarians aim at justifying the politics of difference, reinstating communities as political actors and giving a voice to the subaltern.112 Seeking to go beyond the contingency of minority rights guaranteed by the ‘secular’ Indian state, some liberal philosophers have made a case for grounding minority rights in the democratic right to substantive equality.113 Making a distinction between core rights and conditional rights, Neera Chandhoke says that the collective rights of communities that enable them to exist and flourish are a precondition for the realisation of the individual’s right to culture, the philosophical defence for which is the right to equality. So in some respects the individual rights are contingent

106  Arpita Anant upon collective rights.114 This, she argues, is based on Indian traditional and historical thinking. She provides three instances of the presence of this thought in the writings of Bipin Chandra Pal, Lajpat Rai and Bal Gangadhar Tilak and says that these were inversions of the Western notion of rights. Pal argued that swaraj not only meant external freedom but also internal freedom, which he called self-regulation or self-determination. Lajpat Rai argued that sovereignty rested with the people. Finally, there were those who traced the origin of rights to Vedanta and along this line of thought, Tilak argued that rights existed independent of the colonial power.115 The underlying idea here is that rights of individuals are contingent on the grant of political freedom to the community of which they are members. Perhaps the most significant works on India’s Muslims in recent years have been those that have proved beyond doubt that the Indian Muslims are a heterogeneous category. They are not the monolith that several writers, who have succumbed to the reification of Islam, have made them to be. Mushirul Hasan has argued convincingly against such writers for whom the, […] standard tenet…has been that ‘Islam’ as such provides a complete identity, explanation, and moral code for Muslims, and the mere fact of people being Islamic in some general sense is conflated with that of their adherence to beliefs and policies that are strictly described as ‘Islamist’ or ‘fundamentalist’.116

A central thesis of Hasan’s work is also that the ‘so-called world of Islam…is far removed from the imagination of most Muslims’.117 In fact, Hasan finds a clear consonance between attempts to link Indian Islam with the outside world of Islam and the construction a homogeneous Indian Islamic identity. Thus, establishing a ‘disconnect’ from the external world of Islam is central to his reconstruction of the heterogeneous Indian Muslim identity. Similarly, historical as well as more contemporary studies on how Muslim identities have shaped up in Kashmir, Bihar, Bengal and Alwar underscore the fundamental role of local influences.118 All these writings emphasise the domestic sources of distinctly Indian group identities. Why then should one seek to understand the external/ international environment, ideas and/or factors that have shaped the Indian Muslim identity? This chapter has argued that understanding the role of the ‘external’ in fact reinforces their conclusions. It proves yet again that the core of the Indian Muslim identities is ‘local’. However, such an exercise

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of looking at the external in the construction of Indian Muslim identity adds value to theorising about identities holistically, by locating identities in two contexts, one immediate and the other physically distant and yet integral to the process of construction of identities. Thus, it contextualises identities in the domestic as well as international contexts and provides a better understanding of the motivations, concerns and articulations of identities.

Conclusion Emphasising the importance of the international context in determining the treatment of minorities in the South Asian context, Kanti Bajpai has argued that since the majority in a country like India perceives itself to be a minority surrounded by a number of Islamic countries, it perceives the minority as the majority in the larger context.119 He makes the argument that the international context is also important, because it provides a new way for the minority to perceive itself not just as a minority, but as part of the larger group of marginalised and subjugated people and also as a minority group that is distinct from co-religionists who are in majority elsewhere. The foregoing is an analysis of the variety of external influences that have become a part of the discourse of the rights of the Muslims in India. The fractured narrative that has emerged in the process of tracing the evolution of Muslim identity through external referents reinforces the point that the domestic factors have been more detrimental to the articulation of rights of India’s Muslims. However, external referents have also become involved intermittently in this process and therefore are in part of the Indian Muslim identity. In the nineteenth century, it was the denial of contiguities with the world of Islam that provided indigeneity to Indian Islam. In the first half of the twentieth century, pan-Islamism provided the thrust for demands for special rights for Muslims. Initially, such pan-Islamism triggered the demand for adequate representation of Muslims in all government institutions. Then, it helped produce a unique category of nationalist pan-Islamist leaders and organisations such as the Jamaat-i-Islami and the Jamiyat ul-Ulama, and finally, from among them emerged a group of those who could reconcile their pan-Islamism with the creation of a separate State for the Muslims.

108  Arpita Anant In the post-Independence period, the form of external referents changed with the changing international environment. Borrowing from the example of statutory bodies elsewhere in the world, invoking provisions of international law of human rights or calling for reform of the personal law based on more progressive laws in other parts of the Muslim world by scholars/activists, has made the external element crucial to articulation of the rights of the Muslim minority. Moreover, the participation of the Muslim diaspora and other concerned nations and leaders in the discourse of Muslim rights, especially when there are communal riots, makes the rights of India’s Muslims part of the larger discourse of human rights. In due course, these influences may perhaps substantially change the politics of identity of the Indian Muslim communities. These conclusions prove rather convincingly that identities of groups are not only determined by what R.A. Schermerhorn called reciprocal goal definitions within the domestic context, but by external determinants as well.120 Additionally, the impact of the international is not only due to transnational advocacy groups or organised domestic groups. Various constituencies within a group, not necessarily organised as movements, are sources facilitating domestic–international interaction. Seemingly conservative groups may have amidst them certain sections who absorb the discourses not only from ethnic/religious sources, but also from more secular sources such as the human rights discourse. And finally, the claims of essential difference between the internal/external, as well as the Western and Indian contexts for dealing with religious diversity, are problematic. In every instance where there is an external referent, there is a coming together or interaction of the domestic and international contexts and normative discourses on rights. This may have interesting implications for most theories of identities and rights that ground their debates in domestic material and ideational factors in the formation and transformation of group identities. It may perhaps be that given the marginal influence of the international/external at a given point of time in history, its impact has not been stated or taken cognizance of explicitly. However, my argument is two-fold—first, when one studies the intermittent yet enduring presence of the external in the making of identities over a century, one might like to account for its presence and influence more explicitly, and second, while this role may indeed be marginal in the case of India’s Muslims, the importance of the external has been more crucial in the case of other groups, say the Sikhs or Dalits or indeed many other groups elsewhere.121

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The manner in which this chapter discusses the external/international may be characterized as being very factual/empirical, and lacking theoretical and philosophical arguments. However, the aim of this chapter was to only make a case for studying the international in talking about group identities and rights, so it leaves for another time and place, and perhaps to philosophers and theorists, the task of analysing the value of such a case. There are several aspects of Indian Muslim identities that have not been dealt with in great detail this chapter. Among them is the role of leading Muslim organisations such as the Jamaat-e-Islami Hind (JIH), Jamiyat-al-Ulama and the Tablighi Jamaat in shaping the Indian Muslim identity. This is because the connection between these organisations and the articulation of rights of and by Indian Muslims was not very apparent from the literature surveyed. It is, however, necessary to recognise the role of these organisations in shaping the Muslim identity in a very fundamental way. Interestingly, the functioning and discourse of the JIH and the Tablighi Jamaat have been considerably influenced by the larger Islamic world.122 A second aspect that has not been studied in detail is the movement of the Indian Muslim women, which perhaps will provide even more interesting and theoretically relevant inputs. Another dimension that has not been explored is the heterogeneity of the Indian Muslims. And interestingly, this too can be attributed to some extent to differential borrowing from the external world of Islam. For example, the form of Islam and the role (social work) of Islamic groups in Kerala is greatly influenced by the Mujahid movement, which was influenced by the reformist movement in Egypt in the nineteenth century.123 Similar influences may perhaps be prevalent among Sunni Islamic groups in north India, the Sufi Islam predominant in Kashmir, the Shia Islamic groups, or even the emerging Dalit–Muslim groups, all of whom make up the heterogeneous Indian Muslim identity. One important point that does not come out so clearly, and therefore needs to be reiterated, is that this study has demonstrated that talking about the ‘external’ in the context of minorities need not always be in the negative sense. It need not evoke ideas of foreign funding to communal groups that are necessarily anti-Indian, nor of external help to secessionist movements. The external can make benign and enriching contributions that can coexist, and have indeed coexisted, within a nationalist–liberal framework. It is also important to note that such studies of domestic–international interaction can provide interesting insights not only in the case of India’s

110  Arpita Anant Muslims, but also concerning other identity groups based in India and elsewhere in the world. Thus this chapter is not about the distinct nature of Indian Muslim identity/identities, and it is the hope of the author that arguments made here will not be used to vilify this particular minority community in any way. The chapter only makes a case for bringing together varied contexts to outline a theory of identity and hence rights in a globalised world. The larger argument is that just as the various moments that have brought political theory and IR together in the evolution of the discipline of IR have enriched it and broadened its scope, a study of the international dimension while studying issues of rights of groups in the domestic realm will contribute to a better understanding of seemingly domestic issues and therefore enrich political studies of group identities and rights.

Acknowledgements This chapter draws on the author’s PhD Thesis entitled ‘Group Rights in the Indian and International Discourses’. An earlier version of this chapter was presented at the Second International Conference on Religion and Cultures in the Indic Civilizations, New Delhi, 2005. The author would like to thank Dr D.N. Dhanagare, Dr Rajendra Vora, Dr Will Kymlicka and Dr Mangesh Kulkarni for their valuable critical comments and suggestions on earlier drafts of this chapter.

Notes   1. To cite just two of the many philosophical arguments in defence of minority rights see Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (Oxford: Oxford University Press, 1995) and Charles Taylor, ‘The Politics of Recognition’, in David Theo Goldberg (ed.), Multiculturalism: A Critical Reader (Massachusetts: Basil Blackwell, 1994), pp. 75–106 as representing the liberal and communitarian views on rights of minority groups.   2. Michael E. Brown (ed.), Ethnic Conflict and International Security (Princeton, New Jersey: Princeton University Press, 1993).   3. Thomas Risse, Stephen Ropp and Kathryn Sikkink (eds), The Power of Human Rights: International Norms and Domestic Change (Cambridge: Cambridge University Press, 1999).   4. Alison Brysk, From Tribal Village to Global Village: Indian Rights and International Relations in Latin America (Stanford: Stanford University Press, 2000). Brysk’s exhaustive study relating to the indigenous people’s movement comes closest to developing the kind of perspective I wish to develop.

Group Identities and Rights  111   5. This idea is further explored in my unpublished thesis entitled ‘Group Rights in the Indian and International Discourses’ (New Delhi: Jawaharlal Nehru University, 2003).   6. I would like to thank Professor Will Kymlicka for highlighting the latter two points that emerge from this chapter. According to him, it is these that distinguish this study from others undertaken in the context of indigenous peoples’ movements in Latin America and East Asia and ethnic minorities in post-Communist Europe.   7. See Martin Wight, ‘Why Is There No International Theory’, in James Der Derian (ed.), International Theory: Critical Investigations (Houndsmill: Macmillan Press Ltd, 1995), pp. 2–35 and Hans Morgenthau, ‘The Intellectual and Political Functions of Theory’, in Ibid.: 36–52.   8. James P. Rosenau, Linkage Politics: Essays on Convergence of National and International Systems (New York: Free Press, 1969).   9. Michael Clarke, ‘Transnationalism’, in Steve Smith (ed.), International Relations: British and American Perspectives (Oxford: Basil Blackwell, 1985), pp. 146–70. 10. See Charles Beitz, Political Theory and International Relations (New Jersey: Princeton University Press, 1979), 1999 edition; Chris Brown, ‘Theories of International Justice’, Review Article in British Journal of Political Science, Vol. 27, No. 2 (April 1997), pp. 273–97; Chris Brown, International Relations Theory: New Normative Approaches (New York: Columbia University Press, 1992); Stanley Hoffman, quoted in R.B.J. Walker, Inside/Outside: International Relations as Political Theory (Cambridge: Cambridge University Press, 1993), p. 44; Richard Devetak and Richard Higgot, ‘Justice Unbound? Globalization, States and Transformation of the Social Bond’, International Affairs, Vol. 75, No. 3 (July 1999), pp. 483–98; Andrew Linklater, ‘The Evolving Spheres of International Justice’, International Affairs, Vol. 75, No. 3 (July 1999), pp. 473–82. 11. Hidemi Suganami, The Domestic Analogy and World Order Proposals (Cambridge: Cambridge University Press, 1989). 12. Andrew Linklater, Men and Citizens in the Theory of International Politics (New York: St. Martin’s Press, 1982); Mark Neufeld, The Restructuring of International Relations Theory (Cambridge: Cambridge University Press, 1995); R.B.J. Walker, Political Theory and the Transformation of World Politics, World Order Studies Programme, Occasional Paper No. 8 (Princeton: Princeton University Press, 1980); Wayne S. Cox and Clare Tuerenne Sjolander (eds), Beyond Positivism: Critical Reflections on International Relations (Boulder and London: Lynne Rienner Publishers, 1994); E. Fuat Keyman, ‘Problematizing the State in International Relations Theory’, in Ibid.; Fred Halliday, Rethinking International Relations (London: Macmillan Press Ltd., 1994). 13. Howard Williams, International Relations in Political Theory (Philadelphia: Open University Press, 1992). 14. Howard Williams, International Relations and Limits of Political Theory (Houndsmill: Macmillan Press, 1996), paraphrased from the Introduction, pp. viii–xiv. 15. Ibid.: viii, 141. 16. Ibid.: 149–50. 17. Ibid.: 154–55. 18. Ibid.: 157. 19. Risse, Ropp and Sikkink, The Power of Human Rights. 20. Qeyamuddin Ahmad, The Wahabi Movement in India (Calcutta: Firma K.L. Mukhopadhyay, 1966), pp. 10–11. 21. Ibid.: 11. 22. Ibid.: 12–13. 23. Ibid.: 13.

112  Arpita Anant 24. Ahmad, The Wahabi Movement in India, p. 15. Waliullah took training in the four prominent Sufi orders of the time, namely, Chishti, Sohrawardi, Qadri and Naqshbandi, and then evolved the Mohammadi order. 25. Ibid.: 22. It is interesting to note that despite the Turkish lineage of Islam in India, Wahabism, which was a distinctly Arabian phenomenon and strongly opposed by the Turks and the British alike, had its variant in India. For the political conflict between Wahabis and the Turks for control over Mecca and Medina and the involvement of the British in this tussle, see Ahmad, The Wahabi Movement in India, pp. 18–21. 26. Ibid.: 17. 27. Ibid.: 22. 28. Sir Syed Ahmad Khan, ‘Asbab-e-Baghawat-e-Hind’, in Shan Mohammad (ed.), Writings and Speeches of Sir Syed Ahmad Khan (Bombay: Nachiketa Publications Ltd, 1972), pp. 15–33. 29. Sir Syed Ahmad Khan, ‘Review of Hunter’s Indian Mussalmans’, Ibid.: 65–82. 30. Ibid.: 68. 31. Ibid.: 71–75. 32. Sir Syed Ahmad Khan, ‘The Loyal Mohammadens of India’ (abridged), Ibid.: 34–56. 33. Ibid.: 57–64. 34. A.G., Noorani, ‘Muslim Identity: Self-image and Political Aspirations’, in Mushirul Hasan (ed.), Islam, Communities and the Nation: Muslim Identities in South Asia and Beyond (New Delhi: Manohar Publications, 1998), pp. 121–38 (especially p. 122). 35. Mushirul Hasan, ‘Pan-Islamism versus Indian Nationalism: A Reappraisal’, Itinerario, Vol. 11, No. 1 (1987), pp. 1–14 (especially p. 3). 36. Ibid.: 11. Hasan establishes the important point of the lack of contradiction between pan-Islamism and Indian nationalism. He also argues the same regarding the role of the Deobandi ulama and the Jamiyat al-Ulama citing their alliance with the Congress since the Khilafat movement. 37. For details see M. Yusuf Abbasi, London Muslim League (1908–1928), An Historical Study (Islamabad: National Institute of Historical and Cultural Research, 1988). 38. Ibid.: ix. 39. Address presented by the Mohammedan Deputation to Lord Minto, 1 October 1906 in Sharif Al Mujahid (ed.), Muslim League Documents, Volume I, 1900–1908 (Karachi: Quaid-I-Azam Academy, 1990), pp. 95–102. 40. Yusuf Abbasi, ‘Aims and Objects’, in Muslim League London, p. 182. 41. Hamza Alavi, ‘Ironies of History: Contradictions of the Khilafat Movement’, in Hasan, Islam, Communities and the Nation, pp. 25–56 (especially pp. 29–30). However, Alavi argues that the British actively encouraged this since in their opinion the Khalifa would be useful in controlling India’s Muslims. Thus the Khilafat movement ‘killed the politics of the Lucknow pact of 1916’ that had generated a common platform between the Congress and the Muslim League. Therefore, the movement had a retrogressive ideological influence on the mind and thinking of modern Indian Muslims and on politics in India and Pakistan. 42. For a detailed analysis of the four major strands in pan-Islamist opposition to the British in India and the influence of socialism on some of them, see K.H. Ansari, ‘Pan-Islam and the Making of Early Indian Muslim Socialists’, Modern Asian Studies, Vol. 20, No. 3 (1986), pp. 509–37. Ansari makes a correlation between the decline of panIslamism and rise of socialism among the ‘Muhajirins’, the Deobandis who left India and worked in London, Constantinople and most importantly, Kabul. 43. Hasan, ‘Pan-Islamism versus Indian Nationalism: A Reappraisal’.

Group Identities and Rights  113 44. Mohammad Ali, ‘The Comrade and its Dreams’, in Mushirul Hasan (ed.), My Life: A Fragment, Autobiographical Sketch of Maulana Mohammad Ali (New Delhi: Manohar, 1999), pp. 73–74. 45. ‘Europe’s Temporal Aggression’, p. 82, in Ibid. He further elaborated on this in the context of the internment of the brothers: It was our religious duty to prevent the further disintegration of the temporal power of Khilafat which was indispensable to the defense of our faith, to maintain the inviolability of the sacred regions of Islam and to see that the dying injunction of the Prophet with regard to exclusive Muslim sovereignty over Jazirat-ul-Arab (or the Island of Arabia including Syria, Palestine and Mesopotamia) was not disregarded. 46. 47. 48.

49. 50.

51. 52. 53.

54. 55. 56. 57. 58. 59. 60. 61. 62.

Also see Ali, ‘Man proposes, God disposes…’, pp. 155–59 (especially p. 158), in Ibid. The Appendix offers a critique of Orientalism and reasons for the misunderstanding between Islam and the West. See Ibid.: 215–61. Ali ‘Impact of International Politics on Indian Muslims’, pp. 84–85, in Ibid. T.N. Madan, Modern Myths, Locked Minds: Secularism and Fundamentalism in India (Delhi: Oxford University Press, 1997), pp. 160–61. Madan comes to this conclusion based on Azad’s commentary on the first seven verses of the Holy Quran, notably on the Tawhid or the Concept of God and Hidayat or Divine Guidance. Azad was greatly attracted to the monism or the philosophy of Vedantic Hinduism and its resonances in Islam. Madan, Modern Myths, Locked Minds, p. 124. Presidential Address of Jinnah at the Lahore Session of the Muslim League, 1940 in Ikram Ali Malik (compiled), Muslim League Session 1940 and The Lahore Resolution (Documents) (Islamabad: National Institute of Historical and Cultural Research, 1990), pp. 142–59 (especially pp. 152–54). Ibid.: 157. Atique Zafar Sheikh and Mohammad Riaz Malik (ed.), Quaid-e-Azam and the Muslim World, Selected Documents, 1937–1948 (Karachi: Royal Book Company, 1990). For details of the Conference between the Cabinet Mission and Representatives of the Congress and Muslim League regarding participation of the League in the framing of the Constitution, see B. Shiva Rao, Framing of India’s Constitutions: Select Documents, Volume II (New Delhi: Indian Institute of Public Administration, 1968) pp. 190–20, 249–57, 263–64. For the Muslim League decision to boycott the Constituent Assembly, see pp. 282–86. Rao, Framing India’s Constitution, Vol. I, pp. 201. Ibid. Rao, Framing India’s Constitution, Vol. II, p. 415. Rao, Framing India’s Constitution, Vol. I, p. 206. Ibid.: pp. 207–08. Mushirul Hasan, ‘In Search of Integration and Identity: India’s Muslims since Independence’, Islam and the Modern Age, Vol. 19, No. 4 (November 1998), pp. 217–50 (especially p. 218). Ibid. This view was supported by scholars at the two leading seminaries, namely, the Dar al-Ulumat Deoband and Nadwat al-Ulama at Lucknow. Ibid.: 219. Theodore P. Wright, Jr., ‘The Muslim League in South India since Independence: A Study in Minority Group Political Strategies’, American Political Science Review,

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63. 64. 65. 66. 67. 68. 69. 70. 71. 72. 73. 74.

75. 76. 77. 78.

79. 80. 81. 82. 83. 84. 85.

Vol. 60, No. 3 (1966), pp. 579–99 (especially p. 580). Another important historical reason cited by Wright, Jr. is that unlike the advent of Islam in north India through conquest, Islam came to south India peacefully through traders who inter-married with Hindu women and thereby produced the Moplahs of Malabar, Navayats of Kanara and the Libbais, Marrakayas and Rowthers of Madras. Therefore, it was not perceived as the invaders’ faith. A second more contemporary reason is that Muslims of the south are self-reliant merchants, fishermen and peasants who did not look to government jobs and privileges as much as those in the north. It will be interesting to study if the same holds true even today. Noorani, ‘Muslim Identity: Self-image and Political Aspirations’, p. 134. For a detailed analysis of the secular leanings of Muslim organisations until 1960s and the change thereafter, see, Mushirul Hasan, Legacy of a Divided Nation: India’s Muslims since Independence (New Delhi: Sage Publications, 1997). Ibid.: 221–22. Mohammad Talib, ‘The Tablighis in the Making of Muslim Identity’, in Hasan, Islam, Communities and the Nation, pp. 307–41. Ibid.: 229, 235. Ibid.: 227. Ibid.: 231. Ibid.: 237. Ibid. Ibid.: 238–39. ‘Minorities Commission, Third Annual Report for 1980’, Muslim India, Vol. 1, No. 1 (1983), p. 24. Theodore P. Wright, Jr., ‘Inadvertent Modernization of Indian Muslims by Revivalists’, in Imtiaz Ahmad (ed.), Modernization and Social Change among Muslims in India (New Delhi: Manohar Publishers, 1983), pp. 83–98 (especially p. 84). The author makes an interesting comparison of this phenomenon with the modernisation of the Black Muslims or Baliabans in America in the 1960s. He also points to the significance of the coming together of the Jamaat-i-Islami-e-Hind with the All-India Muslim Majlise-Mushawarat on a common political platform; see, pp. 93–94. Asghar Ali Engineer in Times of India, 25 July 1995, cited in Muslim India, Vol. XIII, No. 154 (October 1995), p. 456. Asghar Ali Engineer, The Need for Codification and Reform in Personal Law in India, Dossier No. 22, January 2000. Available online at http://www.wluml.org/english/ pubsfulltxt.shtml?cmd (last date of access: 12 September 2002). Tahir Mahmood, An Indian Civil Code and Islamic Law (Bombay: N.M. Tripathi Private Ltd, 1976), pp. 35–37. Tahir Mahmood, ‘Progressive Codification of Muslim Personal Law’, in Tahir Mahmood (ed.), Islamic Law in Modern India (Bombay: N.M. Tripathi Private Ltd., 1972), pp. 80–98. Also, see V.R Krishna Iyer, ‘Reform of the Muslim Personal Law’, in Ibid.: 17–33. Muslim India, Vol. I, No. 1 (January 1983), pp. 45–46. Muslim India, Vol. I, No. 4 (April 1983), p. 161, Col. 2. Muslim India, Vol. I, No. 3 (March 1983), p. 145. Muslim India, Vol. VIII, No. 2 (February 1990), p. 92. Muslim India, Vol. XV, No. 6 (June 1997), p. 274. Muslim India, Vol. I, No. 1 (January 1983), pp. 46–47. Muslim India, Vol. I, No. 4 (April 1983), p. 159, Col. 2.

Group Identities and Rights  115   86. Muslim India, Vol. XIII, No. 7 (July 1995), p. 382.   87. Comment by Iqbal Ansari in a personal interview on 10 October 2003.   88. Iqbal Ansari, Protection of Human and Minority Rights under the Indian Constitution: A Review, Memorandum submitted by the Minorities Council to the Constitution Review Committee (Aligarh: Minorities Council, 2000).   89. Ibid.: pp. 9–10.   90. Ibid.: pp. 12–13.   91. Ibid.: p. 14.   92. Ibid.: 15. In yet another instance, Attorney General Soli J. Sorabjee criticised the judgements relating to essential practices of communities and the restriction on the freedom to propagate religion, as being contrary to Article 18 of ICCPR guaranteeing freedom of religion and the expanded definition of religious practices, adopted by the Human Rights Committee General Comment No. 22 (48) under Article 40(4) of ICCPR. Soli J. Sorabjee, Minorities: National and International Protection (Aligarh: Minorities Council, 1995), pp. 8–9.   93. Communalism Combat, Genocide: Gujarat 2002 (Mumbai: Sabrang Communications and Publishing Private Ltd, March–April 2002). Also, see Concerned Citizen’s Tribunal, Crime against Humanity: An Inquiry into the Carnage in Gujarat, Mumbai, 2002.   94. Muslim India, Vol. I, No. 4 (April 1983), p. 213, Col. 3.   95. Muslim India, Vol. I, No. 6 (June 1983), p. 254.   96. Riyadh Daily, 24 March 1987, cited in Muslim India, Vol. 5, No. 6 (June 1987), p. 285.   97. Opinion expressed during a personal interview with Professor Imtiaz Ahmed on 28 September 2003.   98. I would like to thank Dr D.N. Dhanagare for this thought.   99. Gurpreet Mahajan, Identities and Rights, Aspects of Liberal Democracy in India (Delhi: Oxford University Press, 1998), pp. 152–55. 100. Ibid.: 155. 101. D.L. Sheth and Gurpreet Mahajan (eds), Minority Identities and the Nation-state (New Delhi: Oxford University Press, 1999), p. 1. Their characterisation of liberal multicultural thought is based on the work of Will Kymlicka, Bhikhu Parekh and Joseph Carens. 102. Ibid.: 8–9. 103. Rajeev Bhargava (ed.), Secularism and Its Critics (Delhi: Oxford University Press, 1998). 104. This characterisation is borrowed from Sarah Joseph, Interrogating Culture: Critical Perspectives in Contemporary Social Theory (New Delhi: Sage Publications, 1998), pp. 152–72. 105. See T.N. Madan, ‘Secularism in Its Place’, in Rajeev Bhargava (ed.), Secularism and its Critics, pp. 297–320. 106. See Ashis Nandy, ‘The Politics of Secularism and the Recovery of Religious Tolerance’, in Ibid.: 321–44. 107. See Partha Chatterjee, ‘Secularism and Tolerance’, in Ibid.: 345–79. 108. Joseph, Interrogating Culture, pp. 163–64. 109. Ibid., 158. She further argues: [N]ot only does contemporary politics in India make us question the notion of the silent subaltern, it also make [sic] us think again about the depiction of the subaltern as the repository of authentic culture. Subaltern movements themselves

116  Arpita Anant might question this depiction since it does not recognize their demand for change in the culture and it is difficult to ignore the struggle over cultural symbols and representations, which subaltern movements, like the Dalit movement, are conducting today. Moreover, an undifferentiated identity of the subaltern seems to make little sense in the face of the numerous divisions that have emerged within subaltern movements. 110. Ibid.: 153. 111. Ibid. Joseph bases her characterisation of the Western communitarianism on the writings of Charles Taylor and Alasdair MacIntyre mainly in the Canadian and American contexts. 112. Ibid. 113. Neera Chandhoke, Beyond Secularism: The Rights of Religious Minorities (New Delhi: Oxford University Press, 1999). 114. Ibid.: 206, 225. Thus she adopts a middle ground between the individualists and communitarian positions and speaks of the ‘contextualized individual’ or the ‘individualin-community’ (see, p. 271). She also argues that such rights should be granted only to minorities since they are the ones threatened by the majoritarian ethos. 115. Ibid.: 222–23. 116. Hasan, Legacy of a Divided Nation, p. 19. Hasan refers to the following polemical authors who have distorted the Indian Muslim identity in this manner: A.B. Shah, Hamid Dalwai, M.A. Karandikar, Girilal Jain and Arun Shourie. 117. Ibid.: 21. Through a series of interviews conducted with various Indian Muslim Ulama and scholars, Yoginder Sikand arrives at a similar conclusion affirming the indigeneity and heterogeneity of Islam in India. See Yoginder Sikand, Struggling to be Heard: South Asian Muslim Voices (New Delhi: Global Media Publications, 2004). 118. See Mohammad Ishaq Khan, ‘Kashmiri Muslims: Social and Identity Consciousness’, pp. 201–28; Papiya Ghosh, ‘Partition’s Biharis’, pp. 229–64; Joya Chatterji, ‘The Bengali Muslim: A Contradiction in Terms?—An Overview of the Debate on Bengali Muslim Identity’, pp. 265–82; and Shail Mayaram, ‘Rethinking Meo Identity: Cultural Faultline, Syncretism, Hybridity or Liminality?’ pp. 283–306, in Hasan, Islam, Communities and the Nation. 119. Kanti P. Bajpai, ‘Majorities and Minorities in South Asia’, in Sheth and Mahajan, Minority Identities and the Nation-state, pp. 220–41. 120. For an excellent sociological analysis of the manner in which identities of minority groups in India were formed until the 1970s, see R.A. Schermerhorn, Ethnic Plurality in India (Tuscon, Arizona: University of Arizona Press, 1978). Schermerhorn argues that the identity and position of a minority group is determined by the manner in which it is perceived by the majority group and the manner in which it perceives itself. If such reciprocal goal definitions are complementary, then the ethnic groups lives amicably and if they are contradictory, then there is conflict. 121. The case of the Dalits, Sikhs and Christians in India is studied in detail in my PhD thesis. 122. Irfan Ahmed, ‘Between Moderation and Radicalization: Transnational Interactions of Jamaat-e-Islami of India’, Global Networks, Vol. 5, No. 3 (2005). Also, Yoginder Sikand, The Origins and Development of the Tablighi Jamaat: A Cross-Country Comparative Study (Hyderabad: Orient Longman, 2002). 123. Yoginder Sikand, Interaction with Saddiq Hassan, ‘Abdullah, Amir of the Kerala unit of the Jamaat-I-Islami Hind’, in Struggling to be Heard, p. 20.

6 Civil Society: Alternatives and Differences Sanjay Palshikar

Though the term ‘civil society’ is widely used, it is not easy to say what precisely it connotes. It is particularly difficult to demarcate those areas of social life which fall within its purview. In contemporary political theory, civil society has been variously identified with local communities, churches, the family, the market and in non-academic circles, with voluntary associations. The confusion, even if only apparent, is not dispelled simply by going back to its use in the Western intellectual tradition where it has had several revivals, each time with new philosophical and political motives. For example, there is no distinction in Locke between the civil and the political; for him distinguishing society from government is more important. The luminaries of the Scottish Enlightenment used it to mean civilisation, whereas, for both Hegel and Marx, ‘civil society’ stood for bourgeois economy prone to the problems of destitution and periodic crises. So, the answer to the question, ‘what is civil society?’ will yield a different answer in each case. Moreover, the significance of the answer will not be obvious. Why Hegel and Marx deviate from the earlier usages, for example, requires further exploration.

An Oppositional Concept Turning to the history of the use of this concept will not help. This is for the simple reason that there is no single history agreed upon by all the

118 SANJAY PALSHIKAR scholars. ‘Civil society’ is not something that exists independently of our calling it by that name. There are bound to be different histories of a concept resulting from different philosophical and political interests of those presenting its history, and this applies to ‘civil society’ too. We can however try to identify features common to most usages of the term. Thus, civil society is often posited in opposition to something else, say, nature, or an uncultivated state of mankind, or prominently, the State. Hobbes and Locke use it in contrast to the natural state of mankind, the distinction between civil society and the State is central to Hegel’s political philosophy, and the renewed interest in the closing decades of the twentieth century in the idea of civil society—in the sense of structures of voluntary social interaction—is in explicit contrast to the ultimately coercive State. For Michael Walzer,1 civil society is the set of relational networks formed for the sake of family, faith, interest, and ideology’; John Keane distinguishes between ‘military, legal, administrative, productive and cultural organs of the State’ and ‘the realm of privately owned, market-directed, voluntarily run or friendship based activities’2 which are legally recognised and guaranteed by the State. Civil society is thus an oppositional concept. The other feature that is common to the varied invocations of civil society is the idea of non-coercive associationality. When unpacked, this idea can be seen to have several strands to it: (a) that human beings are primarily and irreducibly individuals; (b) that they have the rationality to form and pursue their interests and purposes; (c) that freedom consists in precisely such pursuit; (d) and that pragmatically and normatively, the best sociopolitical arrangement is one which minimises coercion and maximises the domain of individual freedom. Students of Western political philosophy will discern the liberal provenance of this conception. But it is not just liberals who are wary of the State. Scholars like Walzer and Keane3 share the liberal scepticism, though on different grounds. As a first approximation, it can be said that while they agree with liberalism on the intrinsic value of what I have called ‘non-coercive associationality’, they elaborate on it differently—its basis for them is not atomistic individualism. Civil society then is a web of social networks of a voluntary nature. To liberals, this is a picture of social relations as they ought to be, and as they are tending to become everywhere in modern times. Critics of liberalism and critics of modernity use the same picture to show certain intellectual and practical inadequacies of the present. They do so either by showing the normative deficiencies of the model or by investing it with ideals that go beyond its liberal lineage. Generations of Marxist scholars

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have done the former, while scholars like Michael Walzer, John Keane, David Held, Jean Cohen and Andrew Arato do the latter.

Contexts of Current Revival It is worth pausing here for a minute to consider the context in which the idea of civil society has been revived in different parts of the world. No single factor is valid across countries, and certainly not across large divides like the eastern and western parts of Europe, or the North and the South. If in countries like Poland and Hungary, opposition to the totalitarian communist regime was the main context, in liberal democracies it was the general political apathy induced by the working of the welfare state and the unwillingness of the political parties to move beyond a narrow, restrictive agenda which stimulated the revival of ‘civil society’. The politics of the latter had for too long revolved around issues of income and growth. The new social movements, on the other hand, took up issues of alternative lifestyles, alternative sexualities, peace, gender, environment and the normalising tendencies of modernity. There was also a perception that politics had become bureaucratised and corporatised with the apex levels of parties, governments, business and trade unions working out bargains. It was devoid of genuine deliberations, local initiative and meaningful participation by ordinary men and women. This account of the context in which the idea of civil society was revived can be greatly improved upon in terms of detail and nuance. But even a bare sketch like this is sufficient to warn us against a nonchalant invocation of it beyond the Western world. While ‘civil society’ has made several comebacks in Western history, its latest revival was accompanied by processes of globalisation. One of the consequences of globalisation is an intensification of conversation among academics and intellectuals across countries. Everybody knows that there is nothing equal or ideal about this conversation situation. The vocabulary of the conversation and the enabling paradigm come from the West. What are the strategies available to non-Western intellectuals who do not want the specificity of their experiences to get occluded by the Western terms used to structure them? To pose the question this way is to deny the non-designative view of language, according to which our words have the meanings they have because they successfully represent to us objects, tangible or otherwise,

120 SANJAY PALSHIKAR and their interrelationships. On this view, the social and natural worlds exist independently of our talking about them. Thus, we either describe them correctly, or know for sure that we have erred. There is then no coherent way in which we can speak of our experience being structured by a language which is somehow at odds with it. By contrast, on the expressivist view, the language we use is not a neutral instrument which picks out features of objective reality dexterously or gawkily. Rather, it is an active medium, which at least partly, constitutes our experience of the world and of ourselves in this world.4 An extreme position on the expressivist side would be to deny the very existence of extra-linguistic reality; but we need not concern ourselves with that here. Adopting an expressivist view of language, it is indeed valid to worry about the possible appropriation of non-Western experiences by Western theories. And since the way we talk about our experience has consequences for our actions, it is not just permissible but necessary to raise questions about the globalised civil society discourse. Currently, ‘civil society’ is being deployed by Western intellectuals to (a) describe certain activities organised outside the State and clustered around faith, interest, visions and goals; (b) to characterise them as an unconstrained search for alternatives; (c) to express rejection of capitalism and communism, both of which have left the legacy of an intrusive and inefficient State; and (d) to celebrate plurality, difference, initiative and decentralisation. In short, the current normative use of ‘civil society’ implies a search for alternatives under conditions of bourgeois freedom, but not necessarily bound by the bourgeois horizon. In India, several movements, organisations and groups have been engaged with a similar search, proposing ways of freeing the political process from dominant interests and a callous bureaucracy, making it more responsive to local and subaltern needs. Rajni Kothari, whose writings have made this sense of ‘civil society’ popular in India, sees the networks of voluntary, principled and decentralised activities leading to ‘humane governance’.5

Civil Society and the State This use of ‘civil society’ shares with the current Anglo-American usage, a quest for the replacement of the State by civil society, as a site from where a rejuvenation of public life can be launched. It also operates with a dichotomous view of the State and civil society. These common

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features, it might be thought, will make it possible for an Indian academic to begin a conversation with his/her Western counterpart. But beyond a point, their positions will begin to diverge as they give their respective historical accounts of the way the modern State emerged and grew, the salience they attach to community, and so on. Concepts have a layered existence and it is always possible to find that the meanings we attach to them accord with those of our interlocutors at some level of abstraction. This gives a false sense that we are talking about the same thing and keep from our view the real divergences. If, for example, Indian intellectuals agree with their Western counterparts that local networks of participation through which citizens manage their affairs offer the most effective way of (re)vitalising civil society, what would be the political implications of such a prescription? Gurpreet Mahajan raises similar questions, though she does not come to them by the same route. To quote her: ‘…in endorsing a participation based conception of democracy that is currently being espoused by several liberals in the West, he [that is, Kothari] neglects the implications of this view in the Indian context’.6 Participation in the Western context presupposes emergence of new kinds of communities, based on the principle of equality. However, in India, where ascriptive identities and traditional hierarchies have not merely survived but often been politically reinforced, emphasis on direct participation will leave inequalities and domination intact. She points out that by not distinguishing between different kinds of bodies and organisations, Kothari gives, […] the impression that all collectivities, from caste panchayats to student unions, Ramlila mandalis and temple organizations, are agencies of democratization. That some of these bodies operate on the principle of hierarchy and exclusion is a consideration that is almost always left out of the discussion on civil society’.7

The drift of Mahajan’s argument is that if the current Western advocacy of civic and political participation at the cost of the State is translated into practice in India, it will have consequences that an egalitarian or a democrat cannot accept. In place of the current preference for civil society as distinct from and opposed to the State, she advocates returning to the somewhat older Western idea of the constitutional State as a guarantor of individual rights. For, ‘the state alone can create conditions that are necessary to protect the institutions of civil society from internal disruptions’.8 She concludes her argument by saying that the intermediary institutions of what is currently taken to be civil society are valuable for the

122 SANJAY PALSHIKAR pursuit of diverse particular interests. ‘But to secure individual liberty along with social equality, neither increased participation nor diversity of individual bodies is enough’.9 For that, we need a democratic constitutional State. While her plea for a return to ‘a rights-based civility’ is interesting for its invocation of the idea of civility, the focus here is on her strategy for dealing with Western ideas, whether contemporary or historical. Her overall methodological stance seems to be that normative positions can be ultimately judged only on the basis of whether their probable practical implications are consistent with other values held by us. This, however, does not make her sufficiently context-sensitive. There is first a need to point out a problem with Mahajan’s argument from within Western philosophy. She seems to ignore the claims of Machiavelli and Montesquieu that extensive participation in public affairs by citizens, guided by civic virtue, is the best safeguard of their rights and liberties. To this she might respond by saying that, precisely because in India participation takes place under conditions of power asymmetry and inequality that she is sceptical of promoting the ideal of civil society at the cost of the State. While I do not deny the force of this hypothetical rejoinder, I think the precise link between participation and rights needs to be clarified. But more seriously, Mahajan is subscribing to a very simple model of the relationship between ideals, institutions and processes which makes her believe that all that one needs to do is to make an appropriate choice from a separately existing stock of values. This stock has presumably a long shelf-life, so that you can return to it any time, from wherever you are. I am using this metaphor deliberately because she does seem to see normative goods as discrete items and not as practices. The idea of democracy, for example, values participation. But, the valuing and ascribing of relevance to it is not a one-time act which results in a finished product which, at any given time, one can buy or reject. Rather, it is something that grows in complexity, acquires various dimensions, comes to resonate in certain definite ways through its entanglement in varied practical situations. It is a process in which intellectual and political activities are in a dynamic transaction with each other. It is therefore pointless to expect an exact equivalence between the idea of democracy and the specific state of affairs it is expected to produce. Another problem with Mahajan’s argument is that she deploys truncated versions of the historical Locke and Hegel. They are more like tags to her independently formulated positions and there is not enough evidence of

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having engaged with their projects. She is selective in her adoption of their views. Take this passage from the Second Treatise where Locke is discussing the State of Nature and the Law of Nature. ‘That Law,’ he says, ‘teaches all mankind…that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions’.10 The rationale underlying this injunction is very important: For men being all the workmanship of one omnipotent and infinitely wise Maker, all the servants of one sovereign master, and sent into this world by his order and about his business, they are his property, whose workmanship they are, made to last during his, not one another’s pleasure.11

This is the premise on which the Lockean defence of individual rights and liberties is based. I doubt if Mahajan has any use for this premise. But without it, or without the fundamental scepticism about the human ability to arrive at full and impartial judgements, we are not really taking a Lockean position on limited government or equal rights of all individuals. It is possible to reply by saying that the scholar is not concerned here with taking any supposedly full-blown Lockean position, and that she is entitled to being selective about what ideas of the thinker meet with her approval. That may be fine, but the selection should not be arbitrary. In a long exposition of Hegel on civil society, almost making him a philosopher of the welfare state, she does not mention Hegel’s admission that ‘despite an excess of wealth civil society is not rich enough…to check excessive poverty and the creation of a penurious rabble’.12 The point here is that without inheriting the kind of history that Locke and Hegel or Held and Walzer do, we cannot use the term ‘civil society’ and expect it to work for a different kind of politics and in a different context. In criticising Mahajan’s use of Western ideas and arguments, I do not mean to take a nativist position or, to subscribe to what Rajeev Bhargava calls the strong sense in which a political theory is Indian: theorising that is ‘born out of and reflecting the “genius” of Indians, something uniquely Indian’.13 To drive home this point, let me digress a bit.

Culture and Freedom In a speech given around 1930, K.C. Bhattacharya said, ‘The ideas embodied in a foreign language are properly understood only when we express

124 SANJAY PALSHIKAR them in our own way. I plead for a genuine translation of foreign ideas into our native ideas before we accept or reject them. Let us…think in our concepts’.14 While there is a lot that can be said if we take the idea of translation seriously, let me briefly present the views expressed by various scholars, responding to Bhattacharya’s speech in the ‘Swaraj in Ideas’ special number of the Indian Philosophical Quarterly. Bhattacharya’s case can be stated as follows (drawing partly upon Ashok Kelkar’s summary15 of it): culture becomes conscious of itself in and through ideas and ideals which are partly institutionalised. Every society is, and ought to be, guided by its culture as it has developed through history. The educated Indians, however, have uncritically swallowed Western ideas. This has resulted in ineffective, imitative, hybrid thinking. Indian ideals are given up and the Western ones accepted without any contest between the two. Unfortunately, our educated men hardly notice this. They are infatuated with Western ideas and the infatuation is a result of colonialism. Unless we own up our culture, before modifying it, we will remain an unfree people in a crucial sense.16 Given the times in which this was argued, the tone and the views are hardly surprising. But while Bhattacharya’s point about allowing a contest between the Indian and the Western ideas seems reasonable, it does raise a question about what is Indian. This question becomes all the more urgent when we come across expressions like ‘the soul of India’, our ‘indigenous nature’, ‘ideas that pulsate in the life and the mind of the masses’, and so on, in the same speech. These and other emotionally appealing expressions remain unexplained. Bhattacharya welcomes critical, well thought out acceptance of foreign ideas, or a synthesis of the alien and the indigenous, and therefore he cannot be called a chauvinist. But the romantic notions he uses—‘the genius of a community’, ‘the ideals of a community springing from its soil’—do not strengthen his argument analytically. Most of the problems with Bhattacharya’s speech arise because of two separate claims which he seems to take as connected and neither of which is well argued: (a) that we must hold our ideas and ideals reflectively, that is, self-consciously, critically; we must be able to account for them, our dignity as thinking beings demands it; and that (b) we must use our ideas because they alone contain insights into our problems. Today, after the developments of the twentieth century, it is easy to see what is problematic about these claims. The obvious worry anyone would have is about the connotations of the Indian soul’, ‘our ancient culture’, and so on. Bhattacharya treats Indianness as singular and homogeneous. Moreover, it is not clear whether it is the colonial context of power relations which

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alone necessitates intellectual nativism or it is something demanded by a romantic notion of culture. But this chapter does not want to judge Bhattacharya from its present position of methodological superiority and feel self-congratulatory about it. The real problem is that none of the contributors to the ‘Swaraj in Ideas’ volume take Bhattacharya’s thesis any further by scrutinising it, modifying it, and thus strengthening it. Except for Ashok Kelkar, Arindam Chakrabarty, Rajendra Prasad and J.P.S. Uberoi, others do not have doubts and questions to raise. As a result, crucial ideas of Indianness, authenticity and access to the past remain taken for granted. Mrinal Miri and Sujata Miri find the Bhattacharya speech utterly clear,17 Rajni Kothari adds to unclear ideas by speaking of ‘our collective self-realization’,18 Ashis Nandy does not show the exact connection between what he calls the ‘the language of spirit’,19 of the non-Western traditions and emancipatory politics. K.J. Shah boldly raises potentially troublesome questions but makes short work of them by implying that there are in fact no problems in following the categorical imperative of swaraj in ideas. For example, he asks what the Indian tradition is. Cautioning that there is no easy or simple answer, he says: The whole tradition consists of several strands of traditions—Hindu, Buddhist, Jain, Sikh, Tribal, etc.—mutually related, mutually interacting both in an oppressive and enriching manner. This should not present a problem…[because] any specific tradition that is taken for comparing…will be related to the other strands and therefore the whole tradition will be considered at least indirectly.20

Or again, ‘It might be said …that…creative use of the past is no longer possible for us because our consciousness itself is contaminated, and we have lost our capacity to understand…our tradition.’ Admitting that this may be true, he says that ‘this makes our task difficult but it need not prevent authentic and fruitful contact with tradition’.21 This brief discussion shows that at present the thesis that we must think in and through our concepts is in an unsatisfactory state. It shows how basic ideas like ‘tradition’, ‘Indianness’ and ‘authenticity’ are deeply problematic, no matter how attractive they might be otherwise. Therefore, in criticising Mahajan for using Western ideas, the chapter does not argue for intellectual nativism. There is no need to think that we should treat with opprobrium the very use of Western ideas and arguments. But, we must try to theorise what we are doing in making such use. In fact, once

126 SANJAY PALSHIKAR we have a theoretical account of the transaction, we will be able to say whether we are ‘using’ the ideas or something else is going on. To give an example of what this chapter means by theorising the contact across intellectual and cultural traditions, it is necessary to go back briefly to the idea of translation that appears in Bhattacharya’s speech. He urges us to translate Western ideas into native ideas before using them. Behind this plea is an attempt to reconcile the belief that every community/people/ culture has a unique way of organising its experience of the world with the idea of an intellectual exchange between cultures. But, for the idea of translation to be able to give an account of such a synthesis, we will have to look at the debates on translation.22 Today the old idea of translation as a faithful reproduction of the original has been abandoned. It has been realised that the target text, that is, the text that results from translation, is as much a product of the socio-culturally mediated intentions of the translator as the source text—the text to be translated—is. Such a position rejects the idea of fidelity and gives the translator a degree of independence. This does not solve all problems; it gives rise to new ones. How much freedom can the translator exercise? How is the product of her/his activity to be judged? Is it to be judged by its success in evoking the response from its readers that the original did? But it is known that the same text evokes different responses through different acts of reading. A better way perhaps would be to judge it in terms of the intentions of the translator. After all, s/he has chosen to translate that text with a certain audience in mind, for a certain purpose. For example, s/he wants to ‘educate’ them, or, remind them of their ‘patriotic duties’, and we can consider the translation to be successful to the extent it accomplishes what the translator set out to do. But then again what is the relationship between the text produced by the activity of translation and the ‘original’ text? Is translation a transcreation?23 If yes, then a transcreation of what—of original intentions or original effects? The debate goes on. Admittedly, we do not have ready solutions that can be simply borrowed and used. It is also important to note here that ‘translating’ a concept in political philosophy is different from translating a literary text. And taking the idea of translation in a figurative sense will demand a different kind of account of the activity. But if we are to attempt a theoretical account of the ‘use’ of Western ideas in a non-Western context, and if we are going to take recourse to the idea of translation, we will have to start with the debates in translation studies and build on them. Otherwise, our use of those ideas will remain random and arbitrary as it is seen in Mahajan’s resort to Locke and Hegel.

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Civil Society and Political Society For a different example of a non-Western perspective on a Western idea, the chapter now turns to Partha Chatterjee’s writings on civil and political society. Chatterjee has suggested that the main and urgent task of political theory today is ‘to provide a conceptual map of the emerging practices of the new political societies of the East’.24 The subaltern classes in these societies try to cope with the rigours of survival and, in the process, evolve certain practices which do not conform to the Western models of democratic politics. By calling them backward or deviant, Western theory conceals its own provincialism. The task of political theory coming out of the experience of the ‘Eastern’ societies is to expose this provincialism and show how, in the alternative modernities of the East, the cohabitation of capital and community is being worked out, precisely through a welter of such ‘deviant’ practices. The domain of these practices he calls ‘political society’, reserving the term ‘civil society’ for those institutions and practices which show a heartwarming fidelity to the original bourgeois model. Chatterjee says: I find it useful to keep the term ‘civil society’ for those characteristic institutions of modern associational life originating in Western societies which are based on equality, autonomy, freedom of entry and exit, contract, deliberative procedures of decision-making, recognized rights and duties of the members, and other such principles.25

‘Political Society’, on the other hand, is where mediations between population and the State take place over basic issues of survival as marginal groups interact strategically with the police, bureaucracy, political leaders and non-governmental organisations (NGOs). Drawing upon Foucauldian scholarship, Chatterjee makes a distinction between ‘citizens’ and ‘population’. This distinction is very important for Chatterjee. Formally, everyone is a citizen, and an equal member of the nation-state. But actually, in a country like India, only some effectively enjoy the rights due to them as citizens, rights that are recognized by the State. Chatterjee does not give their ‘social location’, perhaps because he considers it obvious. Presumably, they are predominantly upper/middle caste, upper/middle class, educated and urban, or some composite category encompassing the area where these categories overlap. Beyond the small number of citizens is the vast domain of population, classified in ‘multiple, cross-cutting and shifting’ ways, even as these sections become objects of the State’s welfare policies. At first sight, it might seem that

128 SANJAY PALSHIKAR we have two broad divisions—one, that of active citizens, and the other, of population that is administratively acted upon through calculation of costs and benefits. But as Chatterjee’s case studies show, the population groups—refugees, project affected persons, slum dwellers—are as active as their elite counterparts, but in ways which Western conceptions of civic participation do not readily welcome. Chatterjee’s first example is a story of the death of the leader of a sect whose followers refused to accept that their guru was dead.26 There was mounting pressure on the government and the local civic authorities from various quarters to take charge of the body and cremate it, something the sect members stoutly resisted. After attempts to persuade them failed, a large contingent of police stormed the ashram, removed the body and after nearly a month since the official death of the Baba, he was cremated. Throughout the sequence of events, one newspaper vigorously pushed a rationalist line and condemned both, the superstition of the Baba’s followers as well as the opportunistic delay from the government. The tussle between rationalism and alleged irrationalities seems to be a dimension of the civil society–political society relations, but there is no elaborate discussion of this in Chatterjee’s narration. On the whole, the case looks odd among the examples of eviction, rehabilitation, development projects and welfare programmes. The example of a strike in Calcutta’s bookbinding industry in Daftaripara is also not of much help. The author himself admits that ‘there is very little sense [among them]…of a collective identity…’, and that ‘there is no engagement here with the apparatus of governmentality’.27 Having narrated the story of the failed strike by the workers in the industry— who had been unionised by the CPI(M)—Chatterjee says, ‘The bookbinders of Daftaripara have not made their way into political society.’28 It is unclear as to why this case is included, but it may be guessed that it is through it that Chatterjee wants to make it clear that not all instances of subaltern politics qualify as political society. But the opening remarks of this discussion in the third chapter of The Politics of the Governed indicate otherwise when Chatterjee says that he is going to take the reader ‘on a quick tour through political society, or at least those parts of it that I am familiar with, because there are many parts about which I know very little’. The most interesting and also the most cited example is that of the squatters’ colony in south Calcutta along the railway line.29 This example allows Chatterjee to make all the crucial points he wants to make about political society. Here is a settlement that has been in existence for more than 50 years. The very basis of its existence is in illegally encroached

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public land. It has resisted eviction so far (unless it has been removed after the publication of Chatterjee’s book) through strategic and shifting alliances with various political parties. It has got electricity, water and rudiments of medical facilities through informal, ‘paralegal’ arrangements. In order to achieve this, it has formed an association. Beyond dealing with the ‘outside’ agencies—governmental or non-governmental—the association also organises sports, religious and cultural activities. The example thus has all the features that Chatterjee’s political society has— illegality, governmentality and strategic moves exploiting the exigencies of electoral politics. Given that the colony has illegally occupied public land—a fact exploited by political parties and government agencies alike—there is perennial uncertainty under which its residents live. Political society cannot guarantee stability and happy endings. It is also not without its dark side which the author acknowledges but does not analyse because he confesses ignorance of the way criminality works in the lives of the subalterns.30 However, what is interesting is that even as the precariously living population groups are constituted through the power-knowledge grid of governmentality, they respond not with passivity but in ways that expand their democratic participation.31 This claim, if true, is crucial as Chatterjee operates with a Foucauldian conception of agency, but this line of argument allows him to avoid the passivity ascribed by Foucault-derived studies which see people as entirely constituted by the power–knowledge grid, without there being any ‘remainder’. It is this space of remainder which the squatters’ colony invests with claims of being a community. Chatterjee has not considered whether such claims can ever pose a challenge to the operations of governmentality, but that possibility would be an anomaly in his framework. The question that can be raised from within his framework is about the theoretical importance of illegality. His analysis of the examples, if not the examples themselves, gives the impression that somehow illegality is crucial for the operations of governmentality. Contrary to the general influence of texts like Discipline and Punish,32 this does not seem to be true. The very distinction between the legal and the illegal, and the underlying conception of law, is clearly important in Foucault. But illegality, meaning continuous violation of norms and rules, while producing a special case, is not indispensable to the exercise of power as Foucault understands it. It is not as if the ‘proper’, law-abiding citizens are somehow unaffected by the operations of governmentality. Do we then say that the associational forms of civil society are as much a response to governmentality

130 SANJAY PALSHIKAR as the communitarian forms are the response that political society generates? Beyond helping us resist our middle class tendency to denigrate certain forms of popular political action, is anything more to be gained by this analysis?

An Alternative Modernity? In a recent article published in the Economic and Political Weekly, Chatterjee33 has argued against treating the current political and economic features of the Indian society as transitory. Implicit in the condemnation of the forms taken by subaltern groups’ politics, is often a mixture of hope and despair stemming from the conviction that these forms ought to change, that they will only if the subalterns behave in more middle class ways, and that one day they might, if someone plays the role of a benevolent but strict educator. If this were to transpire, it would surely be the ultimate triumph of the project of Western modernity, of which the government and civil society here would be the agents. Chatterjee’s analysis asks us to give up that stance and instead look for mutually educative interaction between political society and the ‘enlightened’ elements of civil society.34 It is only in such interaction that an alternative modernity can find its anchor. Chatterjee sets up various oppositions such as citizens and population, elite and subaltern, modernity and democracy, elite control versus popular legitimacy, associations and communities, ‘enlightened’ and ‘lumpen’ or ‘populist’, capital and community. All these oppositions make the opposition of civil and political society possible. More precisely, they all work through each other, or are each other’s dimensions. Moreover, he seeks to devalue precisely that side in each pair of opposites which the mainstream/Western theory valorises. He does not do so by making a normative argument against it; but by showing the limited reach, spread and importance of civil society in a country like India. Andre Béteille has provided a useful characterisation of institutions that can be said to compose civil society: They are open and secular in the sense that membership in them is independent of such considerations as race, caste, creed and gender; selection to positions of respect and responsibility [within these institutions]… are based, at least in principle, on open national competition. They are secular

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in the sense that their internal arrangements are not governed by religious rules or religious authorities.35

Even if we drop the condition of ‘national competition’ to accommodate associations which are otherwise open (and secular), not all intermediate organisations are part of civil society. It has not escaped the scholars working on India that here the institutions occupying the social space between the State and the individual are a mixed bag, and that it is problematic to call all of them civil society institutions. What Chatterjee has done is to redraw the conceptual map by incorporating such problematic but politically relevant bodies into ‘political society’. That enables him to stop waiting for the arrival of civil society in all parts of India. But, in the process, he has unwittingly compared the actuality of ‘political society’ with the model of civil society and reached the unsurprising conclusion that together they form a pair of binary opposites. Implicit in it is the other binary of the associational forms of civil society and communitarian forms of political society. These opposites point to differences, which are undeniable, but also exaggerate them. It will be far more accurate to think of ‘association’ and ‘community’ as ideas of which actual relations and organisations are partial embodiments. We call an organisation a civil society organisation when it approximates to the ideal of an open network of interaction between free and equal individuals who can freely choose to enter it or opt out; but there is never a perfect fit between an idea and a situation or an aspect of social reality. Chatterjee’s analysis draws to our attention the significance of ‘unreformed’ popular culture, and that is its positive contribution to our understanding of Indian politics. But in the process he misses out on the importance of civil society. The complex and at times complicated transactions between the two sides in each of the pairs of opposites he posits, is underplayed. This tendency is mitigated to some extent in his recent formulation36 that the Indian State has been spending, and will continue to spend, large sums on the welfare programmes meant to provide livelihood to the victims of the process of primitive accumulation, thus reproducing the domain of ‘political society’, and preventing the victims from challenging civil society. Even making allowance for the fact that Chatterjee is using the term ‘civil society’ in the sense of ‘bourgeois society’, it can still be argued that the analysis gives us a sense of two tenuously linked sectors, each having its own kind of politics. There are movements, agitations and even individual actions which are not located in illegality, which originate

132 SANJAY PALSHIKAR neither in the genteel world of bourgeois associations nor in the strategic field of political society. The historical role of these agitations is deeply ambiguous; they participate unconsciously in the bourgeois society’s drive towards incorporating within itself its Other; but they can also in the process stretch the normative resources of the bourgeois order and can pose a challenge to it. They virtually train the poor in the rigours of citizenship through which sections of the ‘population’ come to be part of ‘the people’, without of course ceasing to be amenable to objectification as population. This dialectic of ‘the people’ and the ‘population’ is as old as the country’s freedom movement, and what has changed over the decades is that it is now being increasingly mediated by the politics of development.

Concluding Remarks We considered two Indian responses to the late twentieth century revival of ‘civil society’. Both are in their own ways mindful of the Indian context, and both refuse to participate in the excitement over ‘civil society’. But, both end up not appreciating sufficiently the complexity of its relationship with other elements and structures within contemporary Indian society. The important difference between them is that in one case this alleged failure comes from not theorising the reception of Western ideas, whereas in the other case it happens due to the restrictiveness of the framework used to receive those ideas. What then is the solution to this? While there is no immediate answer, this chapter has attempted to convince the reader that we must continue looking for ever more satisfactory ways of critically responding to the Western modes of theorising the present because, as Edward Said points out, ‘there is no theory capable of covering, closing off, predicting all the situations, in which it might be useful’, for, ‘no system or theory exhausts the situation out of which it emerges or to which it is transported’.37 The search for different ways of theorising is thus as much an epistemological imperative as a political need to give an appropriate response to the Western intellectual hegemony. Ultimately, both these reasons merge in critical awareness—the awareness of differences in situations and the realisation that no understanding of the present as unimpeachable— because, ‘what is critical consciousness at bottom if not an unstoppable predilection for alternatives?’38

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Notes 1. Michael Walzer, ‘The Idea of Civil Society’, Dissent, Vol. 39 (Spring 1991), pp. 293–304. 2. John Keane, Democracy and Civil Society (London: Verso, 1988), p. 3. 3. See Walzer, ‘The Idea of Civil Society’, pp. 293–304; Ibid. 4. Charles Taylor, ‘Language and Human Nature’, in Language and Human Agency: Philosophical Papers, Vol. I (Cambridge: Cambridge University Press, 1985). 5. Rajni Kothari, State against Democracy: In Search of Humane Governance (Delhi: Ajanta, 1988). 6. Gurpreet Mahajan, ‘Civil Society and Its Avatars: What Happened to Freedom and Democracy?’, Economic and Political Weekly, Vol. XXXIV, No. 20 (1999), pp. 1188–96. 7. Ibid.:1194. 8. Ibid.: 1196. 9. Ibid.: 1196. 10. Quoted by John Dunn, ‘The Contemporary Political Significance of John Locke’s Conception of Civil Society’, in Sudipta Kaviraj and Sunil Khilnani (eds), Civil Society: History and Possibilities (Cambridge: Cambridge University Press, 2001), p. 44. 11. Ibid. 12. G.W.F. Hegel, Philosophy of Right, trans., T.M. Knox (Oxford: Oxford University Press, 1952). 13. Rajeev Bhargava, What Is Political Theory and Why Do We Need It? (New Delhi: Oxford University Press, 2010), p. 68. 14. Krishna Chandra Bhattacharya, ‘Swaraj in Ideas’, Indian Philosophical Quarterly, Vol. 11, No. 4 (1984), pp. 383–93. 15. Drawing partly upon Ashok Kelkar’s summary. See Ashok Kelkar, ‘The Idea of Svaraj’, Indian Philosophical Quarterly, Vol. 11, No. 4 (1984), pp. 550–55. 16. Ibid.: 553. 17. Mrinal Miri and Sujata Miri, ‘Comments and Communications’, Indian Philosophical Quarterly, Vol. 11, No. 4 (1984), pp. 580–83. 18. Rajni Kothari, ‘Comments and Communications’, Indian Philosophical Quarterly, Vol. 11, No. 4 (1984), pp. 566–69. 19. Ashis Nandy, ‘Cultural Frames for Social Transformation’, Indian Philosophical Quarterly, Vol. 11, No. 4 (1984), p. 419. 20. K.J. Shah, ‘The Indian Tradition and Our Intellectual Task’, Indian Philosophical Quarterly, Vol. 11, No. 4 (1984), pp. 473–83. 21. Ibid.: 482. 22. I thank Chitra Panikkar for familiarising me with the debates in the area of translation theory. 23. I owe this idea to Meenakshi Mukherjee. 24. Partha Chatterjee, ‘Community in the East’, Economic and Political Weekly, Vol. XXXIII, No. 6 (1998), pp. 277–82. 25. Partha Chatterjee, ‘On Civil and Political Societies in Post-colonial Democracies’, in Kaviraj and Khilnani, Civil Society: History and Possibilities, p. 175. 26. Partha Chatterjee, The Politics of the Governed: Reflections on Popular Politics in Most of the World (Delhi: Permanent Black, 2004).

134 SANJAY PALSHIKAR 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38.

Chatterjee, The Politics of the Governed, p. 64. Ibid.: 64. Ibid.: 53–60. Ibid.: 75. Ibid.: 76. Michel Foucault, Discipline and Punish: The Birth of the Prison, trans., Alan Sheridan (New York: Vintage, 1977). Partha Chatterjee, ‘Democracy and Economic Transformation in India’, Economic and Political Weekly, Vol. 43, No. 16 (2008), pp. 53–62. Chatterjee, The Politics of the Governed, p. 51. Béteille cited in Mahajan, ‘Civil Society and Its Avatars’, p. 1195. Chatterjee, ‘Democracy and Economic Transformation in India’, pp. 53–62. Edward Said, The World, the Text, and the Critic (Cambridge: Harvard University Press, 1983), pp. 241–42. Ibid.: 247.

7 Albert Camus and the Politics of Friendship Mangesh Kulkarni

Albert Camus (1913–60), the Algerian French writer and Nobel laureate, has been widely recognised as a visionary political thinker of the last century.1 At the centre of his vision lies a certain notion of rebellion which reveals an ontological orientation according well with the spirit of our times. In what follows, I offer a thumbnail sketch of Camusian rebellion, discuss some of the contradictions that critics have detected in it, and argue that if these seeming aporias are properly contextualised, they can serve as entry points into a philosophically informed politics of friendship.2

Anatomy and Antinomies of Rebellion Camus’ initial understanding of rebellion sprang from his preoccupation with the problem of absurdity. In The Myth of Sisyphus, he defined the absurd as the discord between the human longing for clarity and the irrationality of the world.3 Camus rejected the temptation to find a deep coherence in the universe through a leap of faith. He also rejected suicide as a valid response to the absurd predicament. This is because these responses do not truly resolve the discord; they merely seek to conjure it away by removing one of its poles, the opacity of the world or the human search for meaning. Camus advocated rebellion as the correct response to absurdity. Here rebellion is understood as a lucid affirmation of the absurd, giving rise to

136  Mangesh Kulkarni an ethic of quantity geared not to the best living, but to the most living. Rebellion so defined is essentially individualistic, amoral and even passive. It thus remains way below the threshold of politics. The transition from such a limited conceptualisation to a properly political problématique of rebellion is reflected in Camus’ writings beginning with Letters to a German Friend and culminating in The Rebel.4 Camus’ struggle against the murderous politics of totalitarian regimes and ideologies such as communism and fascism led him to search for a more positive ethic than that yielded by the absurdist premises. His earlier notion of rebellion, rooted in these premises, provided no unambiguous refutation of the legitimacy of murder. Hence, he redefined rebellion as the simultaneous refusal of injustice and the affirmation of the common dignity of human beings. Anguished by the corruption of the spirit of rebellion in contemporary Europe, he began a genealogical inquiry to discover the ways in which rebellion degenerated into nihilism. Camus’ exposé of the nihilistic denouement of rebellion focuses on its metaphysical and historical avatars. He sees ‘metaphysical rebellion’, which is a protest against the incoherence and injustice of the whole of creation, as a progeny of modern European culture lacking both the classical faith in the goodness of nature and medieval piety. Camus argues that by swinging wildly from the pole of absolute negation (hatred of creation) to that of absolute affirmation (exclusive and defiant love of what exists), this form of protest betrays its original impulse. Through an examination of the metaphysical rebellion expressed by Marquis de Sade (1740–1814), the Romantics, the fictional Ivan Karamazov, Max Stirner (1806–56), Friedrich Nietzsche (1844–1900) and the Surrealists, he shows how it ends in murder and loses the right to be called rebellion. Camus then turns to a critique of the contradictions inherent in the grand narratives of ‘historical rebellion’ through which the metaphysical urge for existential unity gets transformed into a revolutionary quest for political totality. Despite their admirable intention to realise perfect justice and freedom, revolutionaries are driven to fit the world into an ideological straitjacket. Thus, the Jacobins’ deification of formal virtue led to the degeneration of the French Revolution into a regime of terror and oppression. Even this semblance of morality was destroyed by G.W.F. Hegel (1770–1831), who historicised the whole of reality and consecrated historical efficacy as the sole guide to political action. He also glorified conflict and held out an apocalyptic vision of the future. The cult of efficacy, violence and total revolution ensued in individual terrorism, best exemplified by nineteenth century Russian revolutionaries

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like Sergei Nechaiev (1847–82). In the twentieth century, it gave rise to state terrorism in the form of fascism and communism. Fascism was an irrational creed based on a gangster morality and its practitioners had met with an abject defeat. What troubled Camus was communism, for it offered a comprehensive critique of history and society, practised ‘rational’ terrorism and aimed at world revolution. He traced the roots of Stalinist nihilism to Lenin’s opportunist use of Marxism, which itself was a romantic ideology of historical reason as it simultaneously claimed to shape and judge history. In his attempt to formulate a theory of authentic rebellion, Camus derives from great art the need to avoid the polar extremes of total affirmation and total negation of the world so as to maintain a creative tension between the two attitudes. Similarly the rebel must eschew, both bourgeois nihilism based on formal virtue and revolutionary nihilism that glorifies pure expedience. This requires a reaffirmation of the values central to rebellion—human dignity, freedom and creativity. Accordingly, Camus advances the notion of ‘a dialogical life in communion’, which envisions a community founded on the respect and responsibility of each for all and an uninterrupted dialogue among the individuals. Such an ethic would entail a spirit of moderation in the pursuit of humanly desirable ends defined in terms of relative values and approximative thought. The principles of rebellion so conceived are neither purely historical nor entirely trans-historical, but a product of moral choice exercised by men amidst the struggles and contradictions of their social existence. They include the sanctity of human life, a spirit of solidarity and compassion, the indivisibility of justice and liberty, and the integrity of means and ends. Camus’ passionate plea for the abolition of capital punishment, and his earnest, if Sisyphean, endeavour to amicably resolve the Algerian crisis of the 1950s, give an indication of how these principles could be put into practice. Camus invokes the ethic followed by the Russian revolutionary Ivan Kaliayev (1877–1905) and his comrades as an exemplary embodiment of authentic revolt under extreme conditions. These young intellectuals were members of the Russian Socialist Revolutionary Party, which championed a form of agrarian socialism, freely practised terrorism to overthrow the Tzarist autocracy, and often resorted to political assassinations. It was their love of justice, sympathy for the suffering masses and an implacable hatred of oppression, which drove these idealists to embrace the politics of terror and murder. However, they refused to surrender their conscience and their abiding faith in human fraternity to a revolutionary mythology.

138  Mangesh Kulkarni Hence Camus describes Kaliayev and his comrades as ‘fastidious assassins’,5 who represent the moment when the spirit of rebellion embraces the spirit of compassion. Their compassion stemmed from a faith in the sacredness of human life and it encompassed both the oppressor and the oppressed. They were careful not to shed innocent blood. Even when it was necessary to kill political enemies such as oppressive officials of the Tzar, they did so with great reluctance and compunction. To Camus, what makes them exemplary is that they recognised the ineradicable sinfulness of homicide and atoned for it by sacrificing their own lives. Critics have pointed out a dissonance in Camus’ conception of rebellion. Herbert Hochberg spells it out as follows: The [just] assassin murders and contradicts the value of life. Contradictions must be removed. The way out is for the assassin to ‘remove’ the contradiction by killing himself. Here we have come full circle. On the basis of the absolute value of life Camus has rejected suicide, capital punishment and murder. He ends by acquiescing in certain cases to all three, for the suicide of the just assassin is suicide in the form of self-imposed capital punishment.6

Suicide is ruled out in the first instance because it would both nullify the truth of absurdity constitutive of the individual’s relationship with the world, and negate the integrity of life. It is endorsed in the second instance as atonement for the rebel’s homicidal rupturing of the bond with a fellow human being. Arguably, this contradiction reveals a genuine tension that characterises Camus’ thought and reveals its ‘weak’ ontological orientation.

Ontologies: Weak and Strong The political theorist Stephen White has cogently argued that a characteristic feature of the deep structure underlying late modern thought in general and political thought in particular is the prevalence of weak ontologies.7 He uses the term ‘weak ontology’ to connote ‘the most basic frames that we use both to access and construct ourselves and the world.’8 Unlike their premodern and modern ‘strong’ predecessors, ‘weak’ ontologies do not assert certitudes regarding the nature of the world, of political life, and the relationship between the two. Instead, they offer

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epistemologically contestable and historically anchored interpretations of existence, which have cognitive, aesthetic–affective and moral–political dimensions. They thus enable us to think, feel and inhabit the natural as well as social world differently. White holds that strong ontologies of modern vintage project an assertive, disengaged and ‘teflon’ (non-sticky, freewheeling) subject. It is distanced both from its background, that is tradition and embodiment, and foreground, that is external nature and other subjects. It seeks frictionless momentum in relentless pursuit of grandiose cognitive and political projects. The ‘possessive individualist’ citizen of bourgeois democracies and the ‘party-state’ in communist countries could serve as examples of such subjectivity at the individual and collective levels respectively. An irony of contemporary intellectual life is that the transgressive impulse of postmodernism often leads it to reproduce in another guise, the problem of frictionless modern subjectivity: […] the affirmed mode of individual agency becomes one of continuous critical motion, incessantly and disruptively unmasking the ways in which the modern subject engenders, marginalizes, and disciplines the others of its background and foreground. The potential, ironic danger here is that the former image of subjectivity comes to look uncomfortably like the latter.9

Weak ontologies on the other hand proffer an embodied and socially embedded subject, imbued with a deep sense of humility towards being and an acute awareness of the fragility of our projects. The hallmark of a weak ontology is that it signals its own fallibility, contingency and partiality through two (or more) conceptual ‘planes’ or ‘folds’, each drawing attention to the insufficiency of the other—linked only by virtue of a ‘crease’. White explains the experiential content of this idea of planes joined at a crease as follows: ‘It would mean refining the capacity to flesh out one kind of experience or attitude (the crease) in alternate ontological directions (the planes) with correspondingly different sensibilities.’10 Having adumbrated the structure of weak ontology, we may now turn to a consideration of the way in which it frames Camus’ conception of rebellion. A comparison with the thought of his contemporary Jean-Paul Sartre (1905–80) would serve as a point of departure. On the cognitive plane, while Sartre tends to hypostatise absurdity, Camus scrupulously refrains from doing so, treating it more as a relational category. The philosopher John Passmore brings out the contrast in a concise formulation:

140  Mangesh Kulkarni [Sartre] is enough of a rationalist to conclude from the contingency of existence to its being absurd, irrational, even obscene….The ‘absurdity’ of the world is even more strongly emphasized by A. Camus in Le Mythe de Sisyphe (1942). But Camus is not an existentialist: he does not believe that absurdity can be ontologized.11

Hazel Barnes explains the notion of the absurd in Sartre’s Being and Nothingness as, [t]hat which is meaningless. Thus man’s existence is absurd because his contingency finds no external justification. His projects are absurd because they are directed toward an unattainable goal (the ‘desire to become God’ or to be simultaneously the free For-itself and the absolute In-itself).12

This understanding of absurdity comes out most starkly in Sartre’s remarks on the human predicament, which occur in the concluding section of Being and Nothingness: [Insofar as men] believe that their mission of effecting the existence of in-itself-for-itself is written in things, they are condemned to despair; for they discover at the same time that all human activities are equivalent… and that all are on principle doomed to failure. Thus it amounts to the same thing whether one gets drunk alone or is a leader of nations.13 (Emphasis added)

Similarly, in the affective and moral domains, Sartre takes an agonistic view, epitomised by the famous statement ‘Hell is Others’ in his play No Exit.14 Barnes attributes an intended universality to the picture of human relations presented in No Exit. She holds that ‘the absence of any philosophical justification by Sartre of love as a positive existential structure of human reality is a serious lack’.15 The ontological underpinning of such a view is explained by Sartre as follows: [T]he experience of the ‘We’ and the ‘Us,’ although real, is not of a nature to modify the results of our prior investigations. As for the Us-object, this is directly dependent on the Third—i.e., on my being-for-others—and it is constituted on the foundation of my being-outside-for-others. And as for the We-subject, this is a psychological experience which supposes one way or another that the Other’s existence as such has been already revealed to us. It is therefore useless for human-reality to seek to get out of this dilemma: one must either transcend the Other or allow oneself to be transcended by him. The essence of the relations between consciousnesses is not the Mitsein [being-with]; it is conflict.16 (Emphasis added)

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Camus, on the other hand, presents a solidaristic conception of beingin-the-world. This is clearly evident in his understanding of authentic rebellion. To him, the pristine act of rebellion, such as that of the slave rebelling against the unbearable suffering inflicted by a tyrannical lord, affirms the sanctity and inviolability of a pre-existing human nature. It gives rise to a noble conception of fraternity which embraces not merely the oppressed, but also the oppressors, because they equally share in a common humanity. These feelings of love and compassion distinguish it alike from hate-filled resentment and sanguinary revolution. Unlike the individual rebellion of the absurd man, it is founded on a profound solidarity, which is summed up in Camus’ pithy pronouncement: ‘I rebel— therefore we exist’.17 Like Camus, Sartre too moved away from an individualist existential ethic. But unlike Camus, he came to advocate a species of Marxism. Critics like Maurice Cranston have found in it echoes of Hobbes’s emphasis on war being endemic to ‘the state of nature’, Hume’s preoccupation with scarcity as a basic feature of primordial human existence and Machiavelli’s instrumental attitude towards violence.18 The following extracts from Sartre’s Critique of Dialectical Reason bear out Cranston’s assessment: A man is a practical organism living with a multiplicity of similar organisms in a field of scarcity. But this scarcity as a negative force, defines, in commutativity, every man and partial multiplicity as realities which are both human and inhuman: for instance, in so far as anyone may consume a product of primary necessity for me (and for all the Others), he is dispensable: he threatens my life to precisely the extent that he is my own kind; he becomes inhuman, therefore, as human, and my species appears to me as an alien species.19 Man is violent—throughout History right up to the present day (until the elimination of scarcity, should this occur, and occur in particular circumstances)—to the anti-human (that is to say, to any other man) and to his Brother in so far as he has the permanent possibility of becoming antihuman himself. This violence, contrary to what is always claimed, envelops a practical self-knowledge because it is determined by its object, that is to say, as the freedom to annihilate freedom. This is called terror when it defines the bond of fraternity itself; it bears the name of oppression when it is used against one or more individuals, imposing an untranscendable statute on them as a function of scarcity.20

Contra Sartre, Camus advocates a position redolent of the humane strands of anarcho-syndicalism.21

142  Mangesh Kulkarni Camus points to the syndicalist movement as an example of the practical efficacy of his rebellious ethic. Syndicalism became a major force in the French labour movement in the late nineteenth and early twentieth centuries.22 It also had a considerable following in Spain and Italy. An ideological offshoot of anarchism of the sort espoused by Pierre-Joseph Proudhon (1809–65), the syndicalist movement was both anti-capitalist and anti-Statist. It sought to overthrow the existing oppressive order through revolutionary trade unionism. The syndicalist movement was opposed to communism. It stressed workers’ initiative and participation in revolutionary action rather than party vanguardism. Instead of a cynical exercise of violence and subversion, it preferred economic non-cooperation and conscientisation as tools of revolutionary transformation. Its principled opposition to centralisation and bureaucracy led it to reject the doctrine of proletarian dictatorship. Instead, it envisaged a loose federation of local trade unions entrusted with the management of industry, and of autonomous communes performing governmental functions. Its world outlook was staunchly anti-militarist and internationalist. While the communists viewed it as a petty bourgeois diversion, Camus argues that syndicalism succeeded in bringing about a real and substantial improvement in the condition of the working class. He laments its capitulation to the forces of communism, fascism and economism in the aftermath of World War I. He sees this victory of nihilism as a tragic but temporary rupture of the Mediterranean tradition of authentic rebellion. According to him, ‘Authoritarian thought, by means of three wars and thanks to the physical destruction of a revolutionary elite, has succeeded in submerging this libertarian tradition. But this barren victory is only provisional; the battle still continues.’23

Rebellion, Love and Friendship In the light of the foregoing discussion, it may be argued that the aporias which Camus’ critics have detected in his understanding of rebellion are symptomatic of the tension that marks the conceptual folds anchored in a weak ontology. The crease that holds the Camusian conceptual folds in a precarious unity is a certain notion of love. The ‘third cycle’ (after the cycles focusing on the absurd and rebellion respectively) of works Camus was planning at the time of his untimely

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death included a book on love. The book never saw the light of day, but there are several significant references to the theme in Camus’ published works. While it often goes unnoticed, love is a key motif in the fuguelike structure of The Rebel. Thus, in the course of his critique of historical rebellion, Camus faults Hegel for refusing to foreground his own initial insight that love could bring about the mutual recognition of minds: Hegel had allowed that the mutual recognition of minds could be accomplished in love. He would not, however, give a place in the foreground of his analysis to this ‘phenomenon’, which according to him, he found ‘had not the strength, the patience, nor the application of the negative’. He had chosen to demonstrate human minds in blind combat, dimly groping on the sands, like crabs that finally come to grips in a fight to the death, and voluntarily abandoned the equally legitimate image of beams of light painfully searching for one another in the night and finally focusing together in a blaze of illumination. Those who love, friends or lovers, know that love is not only a blinding flash, but also a long and painful struggle in the darkness for the realization of definitive recognition and reconciliation.24

Love is actually a recurring theme in the philosophy of Hegel. His Early Theological Writings contains a fragment on ‘Love’, where he visualises ‘Life’ (Das Leben, like ‘Spirit’ or Geist) undergoing a ‘…process of immature unity, opposition and final reunion. Love restores unity between individuals, and between the individual and the world, but without entirely annihilating the individual’.25 Under the heading ‘Concept of the Absolute as Love’ in Lectures on Aesthetics he says, ‘The true being of love entails renouncing the consciousness of one’s self, forgetting oneself in an other self, however, it is in this disappearance and forgetting (of the self) that one actually has and possesses the self.’26 A philosophical preoccupation with the nature and significance of love can be found in various strands of the Western intellectual tradition to which Camus was heir. He was greatly fascinated by pre-Socratic thinkers and wished to write a book (that would have formed part of the ‘third cycle’) using their characteristic blend of poetry and philosophy. Empedocles (c. 490–c. 430 bc) was among Camus’ favourite pre-Socratic thinkers, and he was associated with a literary journal named after the Greek philosopher and statesman. According to Empedocles, all things emanate from the combination of four Elements in proportions determined by one of the two dominant cosmic tendencies—Love and Strife. When ‘Love’ dominates, previously separated elements combine into matter and order of unified quality and sphericity—a state described as Sfairos.

144  Mangesh Kulkarni Domination by ‘Strife’ on the other hand results in Akosmia, where the elements are completely separated; consequently, things otherwise arising from mixture cannot emerge or exist.27 In early Christian social thought, St. Augustine (ad 354–430) accorded a central place to the notion of Caritas—the love we should have for all our fellow human beings, corresponding to the love of God for humankind.28 It may be noted that Camus’ graduate dissertation focused on a comparison of the theologian’s ideas with those of Plotinus (ad 205–70), the founder of Neoplatonism.29 The Augustinian conception of love lies at the heart of a youthful commentary30 on St. Augustine by Hannah Arendt (1906–75)—a major political thinker of the last century, whose remarkable intellectual affinity with Camus is well known.31 It also informs her mature political thought. The theme of the individual’s relationships to the human community pervades all of Arendt’s works. Her 1929 gloss on Augustine provides her with a way of rooting ‘plurality’ in the ‘multiplicity’ of human society, while balancing it against collective common purpose. She makes this move within the framework of the Christian commandment to love one’s neighbour. As a result the ‘new social life…is defined by mutual love’.32 Arendt so interprets caritas as to provide the basis for creating new communities rooted in common moral judgement and shared history. The nurturing of ‘plurality’ in social experience and ‘natality’33 in political life finds expression in her later advocacy of new public spaces. In view of the foregoing discussion, it should come as no surprise that Camus affirms the centrality of love and friendship in the history of rebellion, and traces the latter’s degeneration to the nihilist repudiation of these values: [I]f virtue in the course of history is recognized by the extent to which it gives proof of patience, real love is as patient as hatred. Moreover, the demand for justice is not the only justification throughout the centuries for revolutionary passion, which is sustained by a painful insistence on universal friendship…Violence, for every one of them [the revolutionaries], is directed only against the enemy, in the service of the community of the oppressed. But if the revolution is the only positive value, it has a right to claim everything—even the denunciation and therefore the sacrifice of the friend. Henceforth, violence will be directed against one and all, in the service of an abstract idea.34

He attributes the malaise of his contemporaries to their incapacity for love. ‘They no longer believe in the things that exist in the world and in

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living man; the secret of Europe is that it no longer loves life.’35 Quite logically, he treats love as an integral element of authentic rebellion; ‘…rebellion cannot exist without a strange form of love. Those who find no rest in God or in history are condemned to live for those who, like themselves, cannot live: in fact, for the humiliated’.36 Camus’ kinship with the sociopolitical ideas expressed in the early writings of Simone Weil (1909–43) is well known.37 It is not clear how he responded to Weil’s later spiritual concerns. Yet, it seems quite legitimate to examine the homology between her understanding of love—a central theme in her mature thought—and Camus’ exploratory reflections on the subject. Weil’s essay on ‘Forms of the Implicit Love of God’38 would be particularly relevant here. In this essay, she discusses forms of love, which may not necessarily culminate in the love of God, but are nevertheless to be cherished for their intrinsic value. These forms include the love of religious ceremonies, of the order of the world, of our neighbour and friendship. All except the first of these would resonate with Camus’ sensibility, which was agnostic, yet open to a sense of the sacred. Weil defines love as consent to the rule of mechanical necessity in matter and of free choice in each soul: ‘The face of this love which is turned towards thinking persons is the love of our neighbour; the face turned towards matter is love of the order of the world.’39 She finds intimations of the love of the world’s order or beauty as much in the thought of Plato and the Stoics as in the teachings of Jesus. This beauty, which is without intention or finality, is good in itself. Art, science, physical work, the longing of the mystics and even carnal love are, at their best, ways of imitating or establishing contact with the beauty of the world. Weil considers the compassionate granting of equality even to those who are weak as a cardinal virtue. The modern notion of justice, which distinguishes it from the love of our neighbour, is not acceptable to her. This is because it dispenses the one who possesses from the obligation of giving and the one who receives from the obligation of expressing gratitude without losing his dignity. Neither the Greeks nor the Gospel made such an invidious distinction. She therefore counsels the restoration of the original unity between justice and love. She writes, ‘Only the absolute identification of justice and love makes the coexistence possible of compassion and gratitude on the one hand, and on the other, of respect for the dignity of affliction in the afflicted—a respect felt by the sufferer himself and the others.’40 To Weil, friendship is a pure form of human love, which is based on affection, equality, reciprocity and respect for each other’s autonomy. Though it is a bond between two persons, in a deeper

146  Mangesh Kulkarni sense, true friendship is impersonal, for the desire to please and the desire to command are both absent from it, and this is conducive to impartiality. It therefore has a universality: It consists of loving a human being as we should like to be able to love each soul in particular of all those who go up to make the human race…he who knows how to love directs upon a particular human being a love which is universal.41

It seems reasonable to speculate that Camus might have wholeheartedly assimilated the essence of Weil’s position outlined here. He would have probably had reservations about certain other aspects of her thought—an unflinching faith in God, a concomitant resort to supernaturalism and a curious justification of capital punishment. But, he could have overcome these disagreements in a spirit of dialogue to preserve the common ground. At a time when ethnic and religious discord finds expression in genocide and terrorist fundamentalism, and the critique of hetero-patriarchy has triggered off gender wars, we need concepts and norms that can accommodate ‘difference’ within a framework of universality, thereby providing a platform on which people of very different orientations could meet to craft a truly humane sociopolitical order. It is for this reason that Camus’ open-ended, unconventional exploration of love and friendship remains exemplary. Particularly noteworthy in this context is the concept of friendship which has a classical pedigree traceable to the writings of Aristotle and Cicero, rendering it quite congenial to Camus’ pagan sensibility.42 It reemerged during the French Revolution under the banner of ‘fraternity’ as one of the three cardinal principles animating the democratic spirit of the modern era. Yet, the concept has not received the sort of attention it deserves in contemporary political theory.43 Unlike the present day view of friendship as an exclusively personal relationship prevailing in the private domain, the classical conception clearly affirmed its political worth by viewing it as a civic bond. To classical theorists, the personal aspect of friendship could serve as a substratum of and be subsumed within its larger public or political function. It is true that they saw this bond as subsisting primarily between patrician men, thereby excluding large strata of the populace, namely, plebeians and women. But if the classical conception of friendship is married to the more capacious democratic ideal of fraternity in a Camusian spirit, the resulting synthesis may give us both a theoretical and practical purchase on the

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seemingly intractable problem of welding diverse and often conflicting communities into some semblance of civitas at the national and global levels—an imperative that can hardly be gainsaid in an era of internecine warfare and the soi-disant ‘clash of civilisations’. It may not be out of place to speculate further that an expanded notion of ‘friendship’ with the non-human world may also be our only hope of attaining ecological sanity. Camus’ worldview clearly had a place for such an ethic of care, as is amply borne out by this passage (dated 15 September 1937) in his diary: Sitting on the ground, I think about the Franciscans whose cells I have just visited and whose sources of inspiration I can now see. I feel clearly that if they are right then it is in the same way that I am. I know that behind the wall on which I am leaning there is a hill sloping down towards the town, and the offering of the whole of Florence with all its cypress trees. But this splendour of the world seems to justify these men…there is an extreme point at which poverty always rejoins luxury and richness of the world. If they cast everything off, it is for a greater and not for another life. This is the only meaning which I can accept of a term like ‘stripping oneself bare’. ‘Being naked’ always has associations of physical liberty, of harmony between the hand and the flowers it touches, of a loving understanding between the earth and men who have been freed from human things.44

There is more wisdom in these youthful observations than meets the eye. It can provide the basis for a non-anthropocentric, yet humane ecosophy.

Coda Unlike the doctrines of many celebrated political thinkers of the last century, which already seem dated, Camus’ thought continues to be a source of inspiration. Through its spirit of moderation, its advocacy of relative values and approximative thought, and its acknowledgement of its own fallibility, it offers an ontological orientation to the self and the world, which is attuned to the requirements of the late modern Zeitgeist. In its critique of the hubristic grand narratives of European modernity, it prefigures many themes currently championed by the postmodernists. But unlike the latter, it offers a constructive view of human nature and a positive project of emancipation. In an era characterised by the ‘end of history’ impasse, it provides both the utopian energy and the conceptual

148  Mangesh Kulkarni resources needed to reinvent a humane sociopolitical order anchored in a vision of friendship.

Acknowledgements I wish to thank Professor David McLellan, Professor Stephen Eric Bronner and Professor Raymond Gay-Crosier for carefully reading and commenting upon an earlier version of the chapter. However, the responsibility for any errors of commission or omission that may be found in the chapter is exclusively my own.

Notes   1. See Fred Willhoite, Beyond Nihilism: Albert Camus’s Contribution to Political Thought (Baton Rouge: Louisiana State University Press, 1968). Also, Stephen Bronner, Camus: Portrait of a Moralist (Minneapolis: University of Minnesota Press, 1999).   2. Many of Camus’ literary works are relevant to the themes discussed in this chapter. However, I have not dwelt on them to ensure economy and sharpness of focus.   3. See Albert Camus, The Myth of Sisyphus, trans., Justin O’Brien (Harmondsworth: Penguin Books, 1984), p. 26.   4. The Letters are available in Albert Camus, Resistance, Rebellion and Death, trans., Justin O’Brien (London: Hamish Hamilton, 1961). Also see Albert Camus, The Rebel: An Essay on Man in Revolt, trans., Anthony Bower (New York: Vintage Books, 1956) and Albert Camus, Albert Camus: Selected Political Writings in Jonathan King (ed.) (London: Methuen, 1981).   5. See the section entitled ‘The Fastidious Assassins’, in Albert Camus, The Rebel, trans., Anthony Bower (Harmondsworth: Penguin, 1975), pp. 133–42.   6. Herbert Hochberg, ‘Albert Camus and the Ethic of Absurdity’, Ethics, Vol. LXXV, No. 2 (January 1965), p. 101.   7. See Stephen White, ‘Weak Ontology and Liberal Political Reflection’, Political Theory, Vol. 25, No. 4 (August 1997), pp. 502–23. White has further developed these ideas in Sustaining Affirmation: The Strengths of Weak Ontology in Political Theory (Princeton, NJ: Princeton University Press, 2000).   8. White, ‘Weak Ontology and Liberal Political Reflection’, p. 506.   9. Ibid.: 521. 10. Ibid.: 508. 11. John Passmore, A Hundred Years of Philosophy (Harmondsworth: Penguin Books, 1972), p. 491. 12. Hazel Barnes, ‘Key to Special Terminology’, in Jean-Paul Sartre, Being and Nothingness: A Phenomenological Essay on Ontology, trans., Hazel Barnes (New York: Washington Square Press/Pocket Books, 1956), p. 799. 13. Ibid.: 797. 14. Quoted in Hazel Barnes, An Existentialist Ethics (New York: Vintage, 1967), p. 319.

Albert Camus and the Politics of Friendship  149 15. Quoted in Barnes, An Existentialist Ethics, p. 320. 16. Jean-Paul Sartre, Being and Nothingness: A Phenomenological Essay on Ontology, trans., Hazel Barnes (New York: Washington Square Press/Pocket Books, 1956), p. 555. 17. Albert, Camus, The Rebel (New York: Vintage Books, 1956), p. 22. 18. See Maurice Cranston, ‘Sartre and Violence’, in The Mask of Politics (London: Allen Lane, 1973), pp. 108–10. 19. Jean-Paul Sartre, Critique of Dialectical Reason, trans., Alan Sheridan-Smith, (London: Verso, 1991), pp. 735–36. 20. Ibid.: 336–37. 21. For a glowing tribute to Camus by his anarchist compatriots, see Albert Camus et les Libertaires (Paris: Volonté anarchiste, 1984). 22. See Peter Marshall, Demanding the Impossible: A History of Anarchism (London: Fontana, 1993), pp. 442–43. 23. Camus, The Rebel, p. 300. 24. Ibid.: 161. 25. This paraphrase is quoted from Michael Inwood, A Hegel Dictionary (Oxford: Blackwell, 1992), p. 36. 26. Translated by Jatin Wagle from G.W.F. Hegel, Vorlesungen ueber die Aesthetik II, Werke 14 in Werke in zwanzig Baenden (Frankfurt am Main: Suhrkamp Verlag, 1970), p. 155. 27. See Jan Janko, ‘Two Conceptions of the World in Greek and Roman Thought: Cyclicity and Degeneration’, in Mikulas Teich, Roy Porter and Bo Gustafsson (eds), Nature and Society in Historical Context (Cambridge: Cambridge University Press, 1997), p. 23. 28. Love, understood as ‘caritas’—a Latin translation of the Greek term ‘agape’—is treated by St. Paul as the highest of Christian virtues: ‘So faith, hope, love abide, these three; but the greatest of these is love.’ See ‘The New Testament’ in The Holy Bible (New York: Collins, 1973), p. 165. I thank Professor David McLellan for pointing this out to me. 29. Interestingly, all three thinkers happen to be of North African provenance. An English translation of Camus’ dissertation is available in Joseph McBride, Albert Camus: Philosopher and Litterateur (New York: St. Martin’s Press, 1992), pp. 93–171. 30. Hannah Arendt, Love and Saint Augustine (edited with an Interpretive Essay by J.V. Scott and J.C. Stark) (Chicago: University of Chicago Press, 1996). 31. See Jeffrey Isaac, Arendt, Camus and Modern Rebellion (New Haven: Yale University Press, 1992). 32. J.V. Scott and J.C. Stark, ‘Rediscovering Hannah Arendt’, in Hannah Arendt, Love and Saint Augustine, p. 153. 33. The Arendtian notion of ‘natality’ connotes ‘the capacity of historically situated humans to begin anew, to transvalue the world’. See Isaac, Arendt, Camus and Modern Rebellion, p. 77. 34. Camus, The Rebel, p. 161. 35. Ibid.: 305. 36. Ibid.: 304. 37. See Fred Rosen, ‘Marxism, Mysticism and Liberty: The Influence of Simone Weil on Albert Camus’, Political Theory, Vol. 7, No. 3 (1979), pp. 301–19. For an excellent intellectual biography of the maverick philosopher, see David McLellan, Utopian Pessimist: The Life and Thought of Simone Weil (New York: Poseidon Press, 1990).

150  Mangesh Kulkarni 38. This essay is available in Simone Weil, Waiting on God (London: Fontana, 1959), pp. 94–166. 39. Ibid.: 115. 40. Ibid.: 97. 41. Ibid.: 158. 42. See Horst Hutter, Politics as Friendship: The Origins of Classical Notions of Politics in the Theory and Practice of Friendship (Waterloo, Ont.: Wilfrid Laurier University Press, 1978). 43. There are a few notable exceptions to this generalisation. John Rawls accorded a small but significant place to the notion of fraternity in his magisterial work, A Theory of Justice (Oxford: Oxford University Press, 1973), pp. 105–06; and Jacques Derrida wrote a full-scale treatise on the subject entitled Politics of Friendship, trans., George Collins (London: Verso, 1997). Also see Leela Gandhi, Affective Communities: Anticolonial Thought and the Politics of Friendship (Delhi: Permanent Black, 2006). 44. Albert Camus, Carnets 1935–1942, trans., Philip Thody (London: Hamish Hamilton, 1963), p. 32.

8 Dismantling the Political1 Syed A. Sayeed

It is intrinsic to the nature of concepts that they cannot be confined to a single language game.2 Moreover, the range of language games in which a concept participates need not have structural implications. Yet, a distinction between concepts based on the range of their participation in cognate and non-proximate language games can be important for analytic purposes. Concepts that are confined more or less to a single language game or to cognate language games, require an analytic mode different from that which is required for concepts that are integral constituents of a variety of remotely related or unrelated language games. Speaking in terms of the trajectory of a concept across language games, there is a difference between a trajectory that describes a more or less logical or linear extension of the original language game and a trajectory that represents a conceptual leap that must be explained with recourse to extraneous factors which we generally place under the rubric of external history of a theory or even a discourse. The concept of the ‘political’ is, I think, of this latter kind. The ‘political’ constitutes a dimension of many different, that is to say not directly related, features of human reality, particularly social reality. There is, though, a certain unity to such diversity. All the contexts in which the political figures as a component can be plotted on one single axis—the axis of power transactions. What is important here however is the further fact that this unity cannot be understood in terms of an overarching principle, which unproblematically controls the discursive behaviour of the concept in different language games. It is a dialectical pattern and its analysis entails the indispensability of a hermeneutic circle. Needless to say, such an analysis of the total field of signification covered by the ‘political’ as a notion, and examination of the dialectical structure of the

152 SYED A. SAYEED mutual relations between different strands of this signification constitute a major task requiring a whole book, and more pertinently, competence of a much higher order than the author claims in this chapter. What can be done within these constraints is to examine the outlines of such an analysis, and provide a brief account of the configuration of any one strand of that signification. Consequently, in this chapter, there is an attempt towards delineation of the analysis appropriate for this (kind of) concept and trace briefly one particular strand (the dominant strand, one might say, though that would be misleading if taken undialectically) from the bundle of significations that constitute the concept of the ‘political’. The particular strand of signification that this chapter aims to explore is the one relating to that insidious factor in human interactions which warps the structure of practices and institutions, so to speak, along the line of the gravitational pull of power. Put more simply, this chapter attempts to suggest a perspective in which this strand of signification of the political becomes visible. However, this exercise cannot be conducted with the help of the more traditional type of conceptual analysis. This requires a slightly different kind of analysis, a hybrid mode of analysis developed from a fusion of ‘pure’ analysis and a sort of historically informed, extratheoretical analysis.

Relevance of Historicist Analysis This section begins with a brief understanding about this historicist analysis that is proposed here. The conceptual analysis practiced—at any rate, adhered to in theory—by mainstream analytic philosophers is a form of theory-neutral analysis, in the sense that it attempts to analyse concepts in some sort of a simulated space, free from the pressures of the theories in which a concept participates. The limitations of this analysis, particularly in the case of fraught concepts which are themselves subjects of theoretical contestation, have been increasingly obvious, and have been responsible for a change in the approach of analytic philosophers. However, the fact remains that a sense of operating in a historical vacuum continues to haunt traditional analysis.3 The dissatisfaction with this mode of analysis has sometimes led to rather drastic changes in attitude involving a declaration of a demise of the philosophical and the ushering in of a post-philosophical era. But this attitude, while it provides the motivation for theoretical innovation, is not

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without danger since it encourages a rather free-wheeling, impressionistic intervention in the structure of concepts and conceptual frameworks, as a substitute for an allegedly irredeemable philosophical analysis. What is needed therefore is a mode of analysis, which remains philosophical in the sense that it insists on a resistance to the immanence of concepts in theories, but which pursues an examination of the structure of concepts in a historically informed fashion, paying attention to the interface between what one would call the internal evolution and the external history of theories and theoretical paradigms.4 In other words, such an analysis would have the task of delineating the basic structure of a concept understood in the sense of its primary participation in the standard language games through which it acquires its semantic identity and stability, but would also, in the process, intervene in this structure through an ‘historicistic’ negotiation of those extensions of the concept which are a result of semantic inertia, and need recuperation (in the sense of adjustment in line with the logical force of the concept’s dynamics). By ‘semantic inertia’, what is meant is simply the sluggishness of common usage (and/or ossified theories) relative to the pace of movement of concepts in an actively evolving theoretical space.5 This phenomenon appears in somewhat different forms in different discursive contexts. For instance—to take an elementary and frequent, but not necessarily innocuous instance—when a concept is taken over by a theoretical discourse and modified in subtle but important way for better amenability to systematic use, the word denoting that concept continues in ordinary usage in its original form. This inertia of the signifier in relation to the dynamics of the semiotic systems through which its signified travels, results in considerable ambiguity of signification which is susceptible to abuse of several kinds. To take an instance of another sort of semantic inertia, when a scientific paradigm is in currency, the activity of what Thomas Kuhn (1922–96) calls ‘ordinary science’ gradually fills out the theoretical map that constitutes the paradigm through empirical investigations and more fine-tuned theoretical formulations. As this continues to happen, some of the concepts that form the elements of that framework may shift their position within the paradigm since their initial delineation is revised in the light of new data or more detailed theorisation.6 In a related way, it sometimes so happens that the paradigm is itself replaced, but a concept from the old paradigm persists in use, due to force of habit or because of a decision to use it as a heuristic bridge between the old paradigm and the new—often incompletely articulated—paradigm. This results in an ambiguity, particularly an ambiguity of reference whose

154 SYED A. SAYEED impact on those discursive and non-discursive domains which orientate themselves through the referential markers of the older paradigm can be enormous and fraught with all kinds of implications. One can cite another case of conceptual inertia (overlapping with the instances cited above) from the human sciences, where the phenomenon to which a concept refers undergoes a transformation in terms of its internal structure as well as its relation to other phenomena. The use of the concept is, in this case, constrained by an inadequate grasp of the objective transformation of the concept or by an ideologically grounded refusal to acknowledge that transformation. This too leads to considerable semantic confusion whose effects can spill over into areas of policy and planning, with not altogether happy consequences. It may be noted en passant that such confusion may not be always unwelcome since many impressive theoretical and ideological innovations are grounded in it. In such cases, if clarity regarding the structure of concepts and understanding of their fields and modes of application are the objectives, neither a ‘neutral’, purely descriptive analysis, nor an arbitrary cultural analysis can be really useful. What is required is the kind of analysis that is discussed here, an analysis that is sensitive to the dynamics of the structural relation between the theoretical interiority and the historical exteriority of the conceptual schemes in question. Such an analysis would not hesitate to sort out the irrelevancies that have crept into the concept or remain clinging to it. Moreover, it could account for and assign a place to those irrelevancies. It would proceed by respecting the historicity of concepts through a recognition of the fact that in most cases (to paraphrase a Sartrean slogan)7 historicity precedes essence. Let me again clarify that by historicity, the author only means the dynamics of the participation of the concept in the succession of historical situations leading to the historical context that constitutes the present. It of course follows that this kind of analysis is a more or less perpetual task, more acutely required during the crises of paradigms. Let me state that in saying all this, I do not imagine that I am suggesting an altogether new approach. Social scientists have always felt called upon to adopt it, as also those philosophers who have made it their business to follow the complex trajectories of concepts in their historical spaces as well as those who have tried to push the frontiers of understanding in the human sciences by setting their faces against what they perceive as philosophical practice itself.8 All that is being done here is to draw attention to this kind of analysis and suggest that it makes sense to engage in it more explicitly and more consistently, and on a wider scale; and of course

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with a certain rigour, since appropriation of history as a methodological strategy increases the challenge of rigour in articulation. At all events, this chapter proposes to try to subject the concept of the ‘political’ to this mode of analysis, since it represents a paradigm case for the use of this approach by virtue of the fact that it exemplifies almost every mode of semantic inertia, some of whose instances that have been cited in the course of this paper. More pertinently, our perception of the presence of the political factor in different social contexts has important normative implications, particularly for our emancipatory concerns, and therefore there is a certain urgency to the task of restoring the focus on this concept from an appropriate perspective.

Defining the Political There seem to be broadly two senses in which the concept of the political is used. The first is that which is denoted by the term ‘politics’. In this sense, the term denotes the activities and institutions associated with the governance of communities and with the effort to secure positions from which to engage in such governance. According to this usage, politics is a domain of public life, related to such other domains as the economic, cultural and social, but distinct from them. The second way in which the concept of the political has increasingly been used is through the phrase ‘the politics of…’. In this usage, the political appears to denote a certain element present in different kinds of social or interpersonal situations. Popular usage identifies this element in terms of manipulation and intrigue. According to a more sophisticated perception, this element consists of the exercise of power of some sort. Now, how do we coordinate the various intuitions in which these different usages are grounded? One way, of course, is to suggest that politics as referring to the domain of governance is the primary meaning and that the other usages are derivative, based upon a perception of some, more or less accidental—as opposed to essential—features of that domain. The merits of this approach are two-fold. First, it has the virtue of being faithful to the etymology—at any rate the traditional meaning—of the word, and second, it fits in with our commonsense understanding of how words shift their meaning metonymically. But, it has a grave drawback as well; it fails to do justice to the groping intuition behind the usage which tries to grasp a significant but little-understood determinant of social existence.

156 SYED A. SAYEED This determinant can be properly understood only through what Michel Foucault (1926–84) called the analytics of power.9 A second way, in contrast to the above diachronic approach, is the synchronic approach which involves appealing to the Wittgensteinian theory of family resemblance.10 But this approach only defers understanding, since the problem with the notion of family resemblance is that it is descriptively adequate, but has very little explanatory potential. It tells us what not to look for, but fails to tell us what to look for. It correctly warns us not to look for some central core meaning of the political, but is unhelpful in guiding us towards understanding the structure of semantic relations by virtue of which there is family resemblance among certain meanings. And the point, at least in this context, is to understand the precise relations between the different members of the family of concepts which allow themselves to be signified by the word ‘political’. The correct method for this would be to use the intuitive sense of conceptual affinities that governs ordinary language or our sense of family resemblance as a point of departure to pursue an understanding of the epistemic and ontological factors that determine that affinity. The third way, which I hold to be the most fruitful, is nothing but an application of the method I just mentioned. It consists of treating the changing relations between the different usages as an indicator of the evolution of another perspective, and using that new perspective in turn as the highest vantage point to recognise the increasing primacy of the play of power in different contexts, including the domain of governance. Let us be aware in saying this, however, that there is some redundancy in our reference to the domain of governance here, since the notion of ‘governance’ refers to the originary legitimation of the exercise of power. This is a central point and, which is only briefly made explicit in this chapter. It nevertheless forms the axiomatic background of the discussion. Returning for a moment to the exact relevance of the mode of analysis that I am discussing here with a somewhat truncated performativity, let me point out that a greater recognition of the shift in the centre of gravity of the concept of the political is not merely a matter of semantic reform. Rather, it has to do with a more consistent recognition of an emerging perspective as a more adequate instrument of understanding social phenomena. The basic thrust of this chapter is that the emergent diversity in the use of the notion of the ‘political’ represents a crystallisation of the insight that the political is not one of the dimensions of social existence, but rather, a constitutive element, in a foundational way, of almost all social, interpersonal situations practices and institutions.

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The further insight that follows this understanding, somewhat by way of a corollary, is that the coming into being of power through an institutionalisation of force—a part of which we recognise as the phenomenon of legitimation—is the origin of the political; and even further, that the sublimation of power into the process of ‘institutionalisation’ itself represents the political, in the sense that it represents the activity of power in the creation of the channels through which it thereafter flows. By this, I mean that the formation of institutions can be understood as an endeavour to integrate the structure of power transactions into the economy of the social contract in such a way that the institutions can continue to be conduits for the exercise of power in the guise of executors of the social contract. In short, institutionalisation is the first effective transformation of power.

Power as a Process Inasmuch as every subject is, as Martin Heidegger (1889–1976) would say, prior to everything else a project, every intersubjective situation involves an encounter of wills which generates a field of existential tension. This tension is inevitably attendant upon any interaction including the interaction of two viewpoints or even two perceptions. This of course follows from the notion of subjecthood as project; even simple mutual perception cannot occur without that tension, since even to perceive the other is to have a perspective on him/her which involves an appropriation of him/her as an object with a particular status and role in the projects of one’s will. To recognise another locus of will in fact unleashes the energies that eventually constitute the field of existential tension of all interactions. This field of tension represents the space in which the dynamics of the inequilibrium of power operate. My reference here is to the fact that the directionality of the flow of power must be governed by some gravitational curvature, which can only be a function of the magnitude and intensity of the will represented by a locus of power. By power, on the other hand, I mean simply the fundamental, ontically primary operation of the will— the will to decide, to determine, to control; or to adopt the more felicitous formulation by Max Weber, that is the capacity of one unit in a system to realize its goals against the opposition of other units. Unlike force, which can operate in a social vacuum (by which I mean an unstructured social space), power, as Foucault has pointed out, operates

158 SYED A. SAYEED only within a structured social space since it is essentially rational as well as institutional. That is to say, power is ultimately subject to decision, and flows along the conduits that constitute the channels of social or primarily intersubjective interaction. The interesting fact here is the paradox that agency in some form—mediated and represented if not direct—is an essential prerequisite on both sides of the power transaction for the activity of power to be possible. The dynamics of that activity of course get modulated according to the specificity of the domain in which it flows. It is for this reason that we find that there are as many forms of power as there are modes of institutional interaction; there is economic power, religious power (of which the ecclesiastic may only be a part), bureaucratic power, and so on. Each of these forms of power displays a distinct mode of the fundamental dynamics of power as the field of intervolitional tension. However, as we know, regardless of its specific form, the distributive structure of power describes a pyramid—as any structure with graded differences must. The tip of the pyramid represents the concentration of maximum power among a few and the base represents the majority with little power at their disposal. The latter obviously bear the oppressive weight of the entire structure.11 This pyramidal structure embodies— indeed it is only a figural representation of—the very logic of power, in the sense that power necessarily tends to this structure in the state of equilibrium. Attempts to invert this pyramid, or to flatten it to one single level, through revolutions or by other means, are invariably doomed to failure, or worse still, to illusory success, since power re-distributes itself in some different form in order to revert to that essential structure. To counter this logic of power, civilised (or to put it more accurately, more organised) communities erect distinct, though necessarily interactive, pyramids of different forms of power. These pyramids are so coordinated in any systematically structured social organisation that the excessive concentration of power-allocation in one pyramid gets neutralised by that in others. As long as the different power pyramids counterbalance each other, we have the semblance of an open or at any rate stable society. But unfortunately, this happy state of affairs never lasts long. Very soon, the power centres in the different pyramids begin to form symbiotic relationships, resulting in one single effective pyramid and the whole system returns to its original, oppressive form. The success and the necessarily attendant evils of capitalism, including international capitalism, result from the fact that economic power, being the most fluid, the most versatile form of power, has a greater ability to appropriate other

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pyramids to form its own oppressively steep, grand pyramid of virtually illimitable power. We have only to look at the phenomenon of globalisation to see a vivid manifestation of this fact. Because power can exist only as a process, as a movement of transaction, the power pyramid is a dynamic structure, even when it appears as a stable, immutable entity. It is never without tensions that constantly tend to upset its internal economy. These tensions can originate from the conflicts of interests of laterally related elements of the pyramid, as well as from the resistance offered by the lower levels of the pyramid. The wars between colonial powers, including the two World Wars, are examples of the former, while most mass revolutions can be taken as examples of the latter phenomenon. The significant difference between these two kinds of tensions is that lateral displacements alter the content without affecting the form of the power pyramid while the vertical tensions that constitute resistance, upset for a short or longer while, the form of the power pyramid.12 In order to effectively meet this resistance, the controlling part of the structure—which essentially means the region close to the apex of the pyramid—evolves a system of transactions, which by camouflaging the play of power under various guises, distracts and dissipates the energies that go into the resistance. The mechanism by which this system of disguised power transactions is instituted constitutes the political dimension of social reality. This mechanism involves the creation of new institutions for controlling and manipulating resistance, as well as the subversion of already existing or presently forming institutions and movements engaged in creating and crystallising resistance. An important component of this mechanism is the creation of discursive practices, which construct and operate the conceptual apparatus to produce a climate of congenial normativity. Such normativity works to legitimise the power transactions and make their smooth operation possible.13 Their fundamental function is one of mystification, of creating a ghost structure consisting of sublimated, idealised images that present an acceptable picture of power transactions that are in reality extremely oppressive. The essence of the political can be identified with this metaphysics of power that sustains its reality by disguising it with a structure of appearance which is aligned with the structure of posited social ideals. Its logic is the logic of duplicity, of ambiguity, of manipulation and subversion. To understand the structure of this metaphysics, one must engage in a practice of interrogation, in a type of hermeneutics of suspicion. What I am attempting here—through a brief exploration of the way the political operates in some domains—can be seen as a sort of prologue to such an interrogation.

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Politics and Language Let us begin with language. This would be an appropriate starting point, since language represents the most basic level of the social dimension of inter-subjectivity, and the deepest intervention of the political is also found at the level of language. Therefore, the best opening into the structure of the political is through an understanding of how language is subverted into serving as an instrument of the political in the discursive domain, or more accurately, how power incarnates language, and flowing through its interstices, subverts its basic character as a medium of intersubjectivity. The basic, or more accurately, originary function of language is to facilitate a constitutive sharing of reality. It is through language that the subjective vision is shared to form the inter-subjective pool of a public reality. However, when the play of power enters into language,14 it becomes an instrument through which the dominant group’s perspective and its conceptual schemata are imposed on others, in order to determine their conceptual organisation of reality. But since every group, no matter how low its position in the hierarchy of power, has its own language, resistance is never entirely absent, and consequently there is a conflict of discourses between different levels of the power hierarchy (which may eventually become polarised into a battle between the tip and the base of the power pyramid). That is to say, if seen through the lens of power transactions, language appears as the battleground for the reclamation of reality. However, it would be a mistake to view this battle in terms of a philosophical agonistics (in an ideal sense). What is at stake in this battle is not truth as much as control over belief. Therefore, rhetoric represents the main weapon with which this battle is fought. But what is rhetoric? The necessary ambiguity of any possible answers to this question itself indicates how rhetoric constitutes the mechanism of the intervention of the political in language—the question of the truth of rhetoric cannot be out of the circle of rhetoric itself. On the one hand, rhetoric is just an aid to the effective communication of truth. On the other hand, it is the art of persuasion par excellence through which the favoured opinion is disseminated in the guise of truth. This ambivalence regarding truth—which consists in the fact that it is an instrument of truth and at the same time it makes truth its instrument—constitutes the necessarily duplicitous essence of rhetoric. This inescapable contradiction governs the entire career of rhetoric. Its functioning is always concealed behind the façade of another function to which, in fact, it is inimical. It cannot

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reveal its truth which is that it is a channel of power and not a channel of truth, since to reveal its truth is to lose its own power, to negate itself structurally and functionally. A further paradox of rhetoric is that its deviant relation to truth continues to the point of its very termination, in the sense that it cannot claim success when it is successful, since to admit success would rob it of that success. Rhetoric represents the political in language by virtue of the manner of its coming into being, as well as the purpose for which it is brought into being. It comes into being through a characteristically—one might say essentially and inaugurally—metaphysical manoeuvre, by positing a duality of domains which play a constitutive role in the structuration of language—the inner and the outer, the private and the public, reality and appearance. This metaphysical structure constitutes the mechanism— embodied in the duality of communication/control—through which manipulation of belief, so essential for the manipulation of wills, is carried out. The presence of this structure can be found in all cases of politicisation of language, that is to say, in all instances where the use of language as a conduit of power needs to be concealed. The concealment, however, is not an either-or affair but exhibits an entire range, from distortion of perspective to total concealment, including concealment through unexpected exposure, like Edgar Allen Poe’s Purloined Letter. From the textuality of commercial advertisement to the ambiguities of electoral discourse in democracy, many a discursive domain of public space manifests this phenomenon. However, the site of the truly insidious operations of the political is the network of concepts through which our thought and behaviour are organised. Let me give a brief vignette of how this happens in such domains as morality and governance.

Morality, Governance and the Political Let me begin by suggesting that one way of looking at morality is to see it as an institution that constitutes the means through which the undesirable interpersonal impulses of the members of a community are regulated through an exertion of social pressure. Now, this definition must appear somewhat negative, at any rate reductive. It appears to ignore the fact that we have values which we intuit primarily as normative impulses innate to our consciousness, and that ethics constitutes a framework that articulates

162 SYED A. SAYEED those values into rules and principles to guide our conduct. As a matter of fact, there is considerable validity to this objection. We must understand morality both in terms of the interdictions issuing from the exigencies of social regulation, as well the prescriptions that cannot be understood without distortion except in terms of certain normative impulses. It may be possible to reductively explain those impulses, (as evolutionary psychologists or socio-biologists try to do), in terms of some biological factors. But the existence of those impulses and their role in the formation of the ethical attitude cannot be denied. To this extent, the two descriptions I have cited above do not represent just two perspectives but refer to two different aspects of the constitution of morality. However, the relation between these two aspects of morality15 is fairly complex. The ‘moral’ is not just the translation or the application of the ‘ethical’. There is a process of appropriation here, which is necessarily mediated by the requirements of power. In other words, the transformation of the ethical into the moral involves the subversion of certain basic concepts, so as to facilitate power-transactions. The ethical, as suggested, refers to the codification of our innate intuitions of what is good and what is evil. It is a set of guidelines, with the help of which we manage our spiritual economy by organising our limited emotional resources. But the institution of morality is not identical with ethics, although it is grounded in the latter. In the formation of the institution of morality, the primary intent is to give a sharper outline to the root ideas that guide our spiritual economy, give them a more objective content and arrange them into a coherent framework of rules, laws and principles. But all this does not add up to a mechanism of enforcement since the ethical is essentially an exercise of freedom. This means that it is not possible to evolve a system of overt enforcement in order to control behaviour. Therefore, in that very process of institutionalisation, the ideas that represent the ethical are subjected to the economy of power. This appropriation is a political operation, in the sense that it facilitates the transactions of power unhampered by resistance. It produces a mechanism which ensures voluntary compliance without recourse to coercion. This mechanism is a valuable tool for social regulation and the tool is forged by injecting a new content into ethical concepts such as ‘conscience’, ‘ought’ and ‘duty’. For instance, ‘conscience’, which is originally the expression of the inner conflict between opposite impulses, is turned into a vehicle of social pressure—the still, small voice inside becomes the echo of the curt warning from outside. Similarly, the Kantian sense of duty is given the content of obedience to commands which originate from the concerns

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of the social order as desired by the dominant elements of the power pyramid. In the same way, the notion of ‘ought’, which is an expression of an inner impulse prompted by a perception of rightness, is converted into the formal aspect of social commands. Thus, the ethical becomes a function of the metaphysics of power. A similar but more complicated metaphysical manoeuvre can be seen to be in operation in the domain of governance. Here the power transactions are conducted through the ‘overt’ channel of authority on the one hand, and the intangible, repressed, subterranean channel of ‘influence’ on the other, in such a way that power as such remains an abstraction. This diversion of power is managed through the concept of legitimacy. The best way to approach this phenomenon is to note the points of contrast between authority and influence. Authority is necessarily visible, since its exercise depends on recognition, in every sense of the word. In order to facilitate this recognition, authority equips itself with a variety of symbolic structures. In contrast, influence is not only invisible, but also mysterious (the very word ‘influence’ carries its etymological connotation of ‘occult’). Indeed, it is effective in proportion to how mysterious it appears, to the point that the centres of great influence are often felt to be in some awesome way anonymous. If kings represent authority, the king-makers—who are but shadowy figures, more felt than seen behind the throne—embody influence. A related point of contrast is that while authority is meticulously well defined, influence is like a field of force, fuzzy in outline with an indefinite extension. Further, whereas authority is closely bound up with rules, influence is immune from rules of any sort. In fact, its effectiveness lies in its capacity to transcend rules. Finally, when the channels of authority are clear-cut and follow a hierarchical route, the channels of influence are as mysterious as its source. Influence is, so to speak, action at a distance in the space of human reality. I have drawn the contrast between these two concepts in such detail in order to show how it runs along parallel lines, along presence and absence, respectively. The diversion of any form of power transaction into these two modes is necessitated by the fact that the reality of power as such cannot be negated, since it is experienced by those on whom it is exerted. Therefore, it has to be diverted into two modes—one innocuously present and the other absent as a matter of fact—with something like the status of a rumour. The structure of this operation is common to all domains, and in all cases it is conducted through the crucial concept of ‘legitimacy’. Authority can only be defined in terms of legitimacy, and as we know, no matter how we define it, legitimacy must always presuppose authority.16

164 SYED A. SAYEED It is evident that if two things appear to mutually presuppose each other, they must be grounded in something else. The alternating levels of authority and legitimation are constantly generated by the play of power, and set in motion following a trajectory that consists of a loop in which these two reinforce each other. It is imagined that (at least in democratic societies) the source of power at this point is popular consent. This is an illusion created and managed by the same metaphysics of power. Democratic societies are sustained on this illusion that the power pyramid has been inverted in the structure that institutionally embodies the democratic impulse. But as I have pointed out, such an inversion represents a state of unstable equilibrium, and the pyramid quickly returns to its original position. Popular consent, insofar as it exists, is the consent given in advance for the subsequent, systematic manipulation of consent. In other words, ‘authority’ is not a function of the social contract, but a function of the subversion of that contract. Let me explain this point by bringing into focus the context in which we can discern the implications of the ubiquity of the political for civilisation. Civilisation is itself a process whose movement is essentially governed by the play of the political. It is based on the notion of restructuring power transactions in a manageable way, or in such a way that human communities and all the institutions that constitute them are closed, controlled structures. But the crux of the matter lies in the notion of management. We tend to forget that civilisation as a process has come to its present stage by a continuous insistence on the idea that human beings need to be ‘managed’ in the sense that they need to be controlled/governed/taken care of/regulated/administered, and so on. There is, of course, a sense in which management, as a gesture of economy, in the sense of a coordination of energies and resources, to optimise the possibilities of survival and growth of the race, is necessary. The play of the political subtly transforms this notion of management into the notion of governance. The social contract in its original sense is a contract with regard to management in the economic sense, and not with regard to governance. It is in this move— from general will to a sovereign authority—that the social contract is subverted. Now, I am not suggesting that the social contract is formed and then it is subverted. My point is that the very fashion in which the social contract is shaped and articulated is determined by the play of the political. The political is the fine print of the social contract. The subversion of the social contract is sustained with the help of a number of factors, but two of them play a central role. These are Reason and religion. The manner of their appropriation is once again characteristic.

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A domain of desire is marked off as Reason and forced into an opposition with Desire. This posited dichotomy is used to project Reason as constituting the deferment or regulation of Desire. From this, it is a small step to the notion that control and governance are essential for wellbeing, both within the individual psyche and at the level of community. This notion in turn is reinforced by presenting the psyche and the society as structurally identical and locking them in an embrace of mutual metaphoricity. Religion supplements this operation with the doctrines of the Original Sin and imbalance of the soul, a recovery from which is made out to be possible only through ‘self-control’. Through the replication of the same movement, the notion of discipline is substituted for self-control, which is then externalised and dispersed into the structure of society from where it may be allocated to specific agencies. Thus, civilisation is transformed into the embodiment of control, an expression of the impulse of discipline. To be civilised is to be controlled in the right way—in apparently self-governed and auto-cultural societies, through an effective adoption of a set of rules and rituals; in the colonial context, through voluntary acceptance of the control imposed by the coloniser; and in the contemporary post-industrial world, by consenting to be controlled by those agencies which are projected as the symbols of the good life, to live by the proposition that to be civilised is to buy the right things. At the international level today, the same pattern is repeated, with the only difference that Western culture is supposed to represent the element of Reason which is in an ethically conflictual relation with Islam or the Third World. The latter are projected as representing the absence of civilisation; an absence manifested by a whole range of symptoms ranging from lack of professionalism to terrorism. This is in turn assumed— with an equal sense of certitude—to place the obligation on the US or the West in general to be the noble instrument of civilisation and accordingly regulate the internal and external life of all the nations.

Conclusion Let me conclude by making two points. First, while I have presented the political in a negative perspective, I do not thereby necessarily imply that there is nothing positive about the political. As Foucault points out with regard to power itself, the political can and should be looked at in a broader perspective that can encompass its negative as well as positive

166 SYED A. SAYEED aspects. My attempt here has been to draw out one basic aspect such that its implications for the entire field of the political can be seen clearly. To the extent it serves a heuristic purpose, the expository imbalance of this article does not matter. Second, and more importantly, the question concerns the implications of this aspect of the political for human freedom. This question can be articulated in various ways, such as in terms of the possible escape from the political or in terms of the means of countering the political. If the analysis I have briefly outlined is at all correct, we must understand that there can be no escape from the political. There is no space, not only in the public sphere, but in the entire universe of inter-subjective human reality, that is free from the play of the political. Therefore, to imagine the possibility of carving out a non-political space that can be a sanctuary for freedom is to delude oneself. The only option is to remain within the political and resist its effects. However, to do it successfully and meaningfully requires a strategy. We must first of all realise one important point in this context. When we look at power in analogy with force, both power and resistance appear to be the same substance, the difference being only directional. While this perception is basically not wrong, we must understand that although the substance of power is the same in all directions, the difference of its modes is crucial. The logic of power in the mode of resistance, in the mode of the quest for and preservation of freedom, is considerably different from the logic of power when it functions as power proper. To ignore this fundamental fact results—as it has so often done in history—in the agency of freedom turning into a structure of oppression. Therefore, the strategy of freedom must be essentially antithetical to the tactics of power, that is to say, it must be counterpolitical. Great care has to be exercised in articulating the counterpolitical, since one of the basic manoeuvres of the political is to insinuate itself into those domains which are potentially antithetical to its dynamics, and neutralise their opposition by appropriating their discourse. Therefore, a discourse that posits itself at a fundamental level as the ‘other’ of the political must be forged. Very briefly, the first requirement of such a discourse would be that it must not only work against the dynamics of the political by exposing its metaphysic, but must keep itself free from such a metaphysic. It must deconstruct the ever-forming pyramids of power-play and expose their operation. This way alone can resistance succeed in the sense of dismantling the hierarchies of power by intervening at the nodal

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points of those hierarchies. But the problem, as I tried to indicate above, lies in the fact that the hierarchies of power quickly re-establish themselves. In order to obviate this possibility, it must be ensured that the very logic of the system of resistance is antithetical to the logic of power, such that it is impossible for those in control of power to appropriate resistance. By the ‘counterpolitical’ I mean basically this alternative logic. The imperative of forging a counterpolitical discourse may be an extremely difficult task, but to give it up as too utopian is to give up the struggle for human freedom and dignity. In any case, this is not a task without precedent. For those who are discerning, the essence of the Gandhian approach is precisely an attempt to inaugurate and sustain the counterpolitical at the level of praxis. Therefore, if we are searching for the basic tools for fashioning a counterpolitical discourse, we need look no further than the life and thought of M.K. Gandhi.

Notes 1. An earlier version of the chapter was published in Studies in Humanities and Social Sciences, Vol. IV, No. 2 (1997), pp. 59–68. 2. My reference is of course to Wittgenstein’s theory of language according to which we must not look for the ‘essential’ meaning of any word but try to understand its use in a language game—a language game being a linguistic context governed by a set of rules which stipulate the way in which a word is to be used within that context. See Ludwig Wittgenstein, Philosophical Investigations (Oxford: Blackwell, 1958). 3. There is, I confess, a bit of polemically inspired deliberate anachronism here. The past three decades have seen a change of attitude in this regard, particularly in the case of social philosophy and the philosophy of the social sciences. Nevertheless, my comment is not altogether misplaced. The unreflective attitude of most analytic philosophers still retains a strong hangover of that philosophical mindset, and to a large extent explains the divide between analytical philosophy on the hand and the continental philosophical practice with its congeniality for the evolution of disciplines such as, say, Cultural Studies, which are grounded in a suspicion of the mode of analysis characteristic of analytic philosophy. 4. What I am trying to suggest here is that there can and ought to be a mode of analysis that traces the lines of tension which describe the dialectic of the history of ideas. 5. I do not imagine that I am drawing attention to any new phenomenon here. I am only trying to point out its importance. 6. Although it is through Kuhn’s work, mostly his The Structure of Scientific Revolutions (Chicago: University of Chicago Press, 1996) that the phenomenon has become familiar to most people, the first thinker to draw attention to this important epistemological phenomenon and its implications was the French philosopher of science Gaston

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7. 8.

9.

10.

11.

12.

13.

14.

Bachelard, whose influence on the work Kuhn, as well as Foucault has been well documented. I mean the famous assertion of Jean-Paul Sartre that in the case of human reality, existence precedes essence. I think this impulse, together with the anxiety to free oneself from an ahistorically abstract conception of the functional reality of concepts, constitutes one of the important strands of such emergent disciplines as Cultural Studies. Here I am referring to the broad theoretical approach Foucault tried to develop in his History of Sexuality. See Michel Foucault, The Will to Knowledge: The History of Sexuality, Volume I (London: Penguin, 1981). This refers to another aspect of Wittgenstein’s theory of meaning which says that the different uses of a word do not have a core or nuclear meaning that runs as a common factor through all of them. According to Wittgenstein, the different uses of a word (in different contexts) have a general, difficult-to-isolate similarity, somewhat analogous to the resemblance one finds among different members of a family. It may be objected that Foucault’s analysis of power in terms of a network, which I have invoked above, is inconsistent with my analogy of the pyramid. But, I do not think the notion of networks of power transactions is incompatible with the idea of power pyramids. In fact, the latter notion fleshes out the Foucauldian insight very much in its original direction. If it is insisted that it does not, then I must say that what requires revision is the notion of networks since the pyramidal structure of power is a more fundamental and more self-evident fact. In a pre-publication discussion of this chapter, Mangesh Kulkarni has questioned this distinction, saying that the break-up of empires (for instance, the Ottoman Empire) after the World Wars changed the form of the power pyramid in the relevant areas, while the transition brought about by the Bolshevik Revolution may be seen as a continuity of form albeit with a new content—one despotism giving way to another. While I can see the relevance of this criticism to my statement about wars and revolutions, I am still not fully convinced that the distinction itself is invalid. The dominant international discourse operative today serves as an excellent example of this phenomenon at the largest level. This discourse is so completely manipulated that the concepts, the definitions, the basic axioms, not to speak of the structures of argument that constitute this discourse, display the extraordinary feature that no matter where you start, that is to say, whatever one’s initial empirical and normative premises, the conclusions reached coincide with whatever is favourable to the interests of the United States, which today represents the tip of the global power pyramid. It may be objected that this clause ‘when the play of power enters’ seems to imply an antecedent ontological state of human reality prior to the play of power, while the truth is that—to borrow a fashionable phrase—power is always already everywhere. Such critics can treat this clause as implying only a logically anterior position, posited for purely heuristic purposes. However, it can also be argued—which is implicit in the present exposition—that in the final analysis, how we look at this phenomenon is a matter of conceptual economy. While power is coterminous with human reality, it only becomes manifest—in both the senses of visible and operational—in the asymmetry of its differentiality. In other words, power in equilibrium is not power, except in the Aristotlean sense of potentiality. This latter sense would only create confusion

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in the present context since we are concerned here with power in its actuality, in its dynamism. 15. I shall, for convenience of reference, designate these two aspects by two different terms, calling the former ‘morality’ and reserving the term ‘ethical’ to refer to the latter. 16. In this discussion, I have held a view of the structure of concepts relating to the core phenomenon of power somewhat at variance with received opinion, at least as found in the works of such thinkers as Hannah Arendt (1906–75), who defines these concepts quite differently while presenting their authentic diversity as lying beneath the spurious unity of function (of enabling man to rule over man) in her On Violence (New York: Harcourt Brace Jovanovich, 1970). In Arendt’s account, power is necessarily a matter of collective agency, at least in representational form. As she puts it, ‘Power is never the property of an individual; it belongs to a group and remains in existence only so long as the group keeps together.’ I find this view somewhat implausible. It seems to me that the prerequisite for power is not collectivity, but communication in a basic sense. Robinson Crusoe can exert power on Man Friday as long as the latter recognises the former as an agent of power. Power in such a context, in its initial manifestation, could be just a visible suspension of imminent force, whose visibility must be discursively mediated. To put it crudely, all that is needed for power to exist is two wills and a language. In a related way, Arendt states that ‘strength unequivocally designates something in the singular, an individual entity’. Taking a cue from Nietzsche, she suggests that collective power aligns itself against individual strength motivated by resentment. It is doubtful whether a consistent taxonomy can be maintained, if we include ‘strength’ in the family of concepts relating to power. In any case, it seems to me that here Arendt is looking at strength through the hazy lens of a somewhat romanticised valorisation, generated perhaps from an excessive emphasis on the fact that we see resistance in terms of strength. I think strength can be collective as much as individual, and there is nothing essentially positive about strength. Strength is basically a capacity, or a measure of capacity, somewhat like potential energy. In the same context, exhibiting an instance of the kind of semantic suggestion I have been discussing here, she says that we tend to treat force as synonymous with violence, but we should reserve this term to denote ‘the energy released by physical or social movements’. I feel that while Arendt grasps the direction of the concept correctly, she makes it too narrow and thereby reduces its heuristic efficacy. My view in this matter is that while power is a discursively primitive notion, force is ontologically the more primitive, or primordial fact. Force is the primary expression of existence in relational form. To be is to force oneself onto whatever else there is. In the context of human reality, the operative thing is force. It is the inadequacy and unreliability of force that calls for its transformation into power. Similarly, referring to ‘authority’ she calls it ‘the most elusive of these phenomena’, and points out that ‘to remain in authority requires respect for the person or office’, while adding the important insight that ‘a father can lose his authority either by beating his child or by starting to argue with him, that is either by behaving like a tyrant or by treating him as an equal’. However, it seems to me that she does not clearly delineate the complex structure of authority in relation to other related phenomena. It is correct that authority requires an asymmetry and any hint of equality ruins authority. It is also correct that tyrannical behaviour runs contrary to authority. But the point here, which Arendt

170 SYED A. SAYEED does not make adequately, is that authority is legitimised force held in abeyance. And the mode of this being held in abeyance is the extreme discursification of force. That is, force sublimated into a principle, almost into a symbol. That is why the actual show of force is tantamount to an admission of loss of authority. This relation between force and authority, which can be captured in semiotic terms by representing the former as the referent and the latter as the signifier, is crucial to any analysis of power and its role in the political. This point is important to any discourse of resistance, since it is only by subverting the semiotic manoeuvre of force sublimating into authority that resistance can act. That is why resistance has to sustain itself at the level of force and manifest itself as counter-force, ‘forcing’ authority to reveal itself as force.

9 Discourse Ethics: Rediscovering the Link between Rationality and Morality Deepti Gangavane

Contemporary philosophy is marked by numerous breaks with traditional philosophy. The well-known German philosopher Juergen Habermas (b. 1929) has rightly pointed out that philosophers are busy celebrating farewells and that the philosophical landscape is dotted with ‘postanalytic’, ‘post-structuralist’ and ‘post-Marxist’ groups.1 In this context, Habermas’ own position seems to be quite unique. Though he has engaged with some major trends of thought prevalent in the last century, he has not completely followed any one of them. In fact, he has tried to formulate a grand synthesis of various insights drawn from different streams of thought. Habermas’ canvas is truly vast, and includes philosophy, sociology, political science and psychoanalysis. Within philosophy itself, his engagements encompass German idealism, Marxism, hermeneutics, ordinary language philosophy, American pragmatism and postmodernism. His thinking has been shaped on the one hand by a penetrating analysis of contemporary philosophy and on the other, by an acute awareness of the dilemmas and paradoxes of the larger sociopolitical situation. The formative period of Habermas’ life witnessed a crisis, which was simultaneously social, political, cultural and intellectual. The rise of fascism, racism, antagonisms of different kinds, the resultant outburst of the Second World War and the mass destruction that followed, together raised a serious question about the seeming progress of the Western civilisation along the paths of science and technology. In a way, the crisis entailed a shocking disillusionment regarding the potential of reason as

172 DEEPTI GANGAVANE a source of remedies for all the problems that human beings could ever encounter. Contrary to the hope that Enlightenment had placed in reason, it was now believed by some that reason itself was deficient, inadequate as a cure, or worse still, was dangerous in certain respects. The distinctive form that Habermas’ thinking takes is a result of the way in which he seeks to respond to this crisis. The most striking feature of his thinking is the persistent, vigilant awareness of the fundamental objectives of philosophical thinking. The common thread that runs through Habermas’ intellectual output is his concern with an emancipated or just society. Habermas has a peculiar relationship with the Enlightenment project. Descartes, the father of modern philosophy, had begun his philosophical meditations by way of reflecting on his own consciousness and then formulating the self-evident truth about the cogito. Since then, philosophy adopted what is described as the ‘first person standpoint’. This standpoint assumes the self-givenness of one’s own consciousness and its claim to certainty. It treats consciousness as the source of truth as well as values. This ‘philosophy of consciousness’ associated with the Enlightenment project fails to take cognizance of the fact that the consciousness of an individual is in fact constituted by society, and cannot be treated as a self-contained unit, completely immune to external influences. Habermas is well aware of the complex, interdependent nature of the processes of individuation and socialisation, and has therefore moved away from the philosophy of consciousness.2 A corollary of the philosophy of consciousness is the view that reason, in its essence, is not affected by the external factors pertaining to particularities of time, place, person, and so on, but functions in a universal manner. The rationalist’s conviction about the possibility of a priori knowledge was an outcome of such an ahistorical understanding of reason. In Kant’s critical philosophy, reason also acquired the attribute of transcendentality, by being assigned the function of providing the categories of understanding, which are the conditions of possibility of knowledge. Habermas does not accept such a transcendental, ahistorical concept of reason that the Enlightenment project assumes. However, Habermas has not radically departed from the basic aspirations and urges of the Enlightenment. The hope that Habermas invests in the potential of reason even today, sets him apart from many of his contemporaries who have sought a way out of the aporias of modernity by turning towards pessimism or by appealing to the non-rational aspects of human nature in order to regain the lost sense of meaning and fulfilment. Unlike the latter, Habermas believes that it is still possible to have a vision

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of the good life, a vision that is not cut off from the concerns of reason but is grounded in those very concerns in an important way. In other words, he believes in the possibility of developing a rational critique of the existing state of affairs and of creating a space for social action based on such a critique. This task has necessitated a review of the way in which reason was understood in modernity. Reason’s claims to transcendentality were greatly challenged in the wake of Hegel’s emphasis on its historicity. With the emergence of modern science as an intellectual and cultural force in modern life, reason was increasingly confined to scientificity. Already in the eighteenth century, Hume had rejected the claim that reason could provide necessary knowledge of empirical facts. Accepting the fallibility of scientific theories and being ready to change them if required were the hallmarks of a scientific temper. Further, accepting Hume’s bifurcation between facts and values, scientific rationality cut itself off completely from moral considerations. It thus turned into instrumental rationality looking for the most efficient means to achieve pre-chosen goals. The choice of goals themselves could not be rationally grounded since it was based on value considerations, which lie outside the scope of instrumental rationality. On the intellectual front, the achievements of science gave rise to scientism, namely, a blind, uncritical acceptance of the results as well as the methodology of science. Under the impact of the positivist understanding of the unity of method, the social sciences tended to look upon the methodology of the natural sciences as a model that they needed to follow in order to be ‘scientific’, and in this attempt, at times treated human beings as if they were natural objects to be examined externally, to be manipulated without paying heed to their status as humans. The advocates of scientism were of the opinion that in order to be cognitively valid and rational, every inquiry had to be ‘scientifically’ conducted. This equation of rationality with scientificity had disastrous effects on ethics, as an inquiry focusing on the nature of the good life. Various concepts of the good life were considered to be relative to specific cultures and forms of life, or worse still, were left completely at the mercy of the non-rational subjective forces. This gave rise to decisionism, which treats choices as being based only on the desires and inclinations of the agents and thus being non-cognitive in nature. Together, relativism and decisionism preclude the possibility of a universally acceptable concept of the good life. At the level of social practices, reason, which had the ambition to replace authority, either human or divine, in matters regarding choice

174 DEEPTI GANGAVANE of action, itself severed all its connection with values and goals. The erosion of the traditional bases of morality was coupled with a diminishing influence of religious and metaphysical worldviews. The acquaintance of the West with the rest of the world had already led to an awareness of the plurality of worldviews and normative systems that greatly differed from one another. The world was no more enchanting, as it did not contain any meaning, value or purpose within itself. With the decentring of worldviews and differentiation of social spheres, reason itself lost its claim to universality and was fragmented, reinforcing the ‘disenchantment’ of the world. On the political front, the problems created by late capitalism along with the disappearance of a revolutionary working class made the issue of legitimisation of the existing sociopolitical order more and more acute. Everyday life activities take place on the background of a shared stock of assumed but unthematised meanings, values, patterns of relevance and frames of interpretation. This world of everyday living, that is, the lifeworld in its various aspects, was brought under control mainly by the economic and the administrative systems, thereby threatening its autonomy.3 The issues with which the political institutions were concerned, were the ones regarding the efficient technical management of the system, and these were to be dealt with in a scientific manner. Once the rationality of moral discourse was denied and that of political discourse was retained, only in so far as politics was scientised and thus constrained within the limits of instrumental rationality, the sociopolitical struggles for betterment of life tended to lose their moral significance. The vision of an emancipated or a just society, which has been present in Habermas’ work since the early days, requires a vindication of the possibility of rational discourse about moral and political values, otherwise it would lose all its force. A critique of the existing sociopolitical conditions is developed with reference to such a vision, which is fundamentally normative in nature. The notion of ‘critique’ is essentially value-laden. It is informed by an understanding of ‘normalcy’ on the one hand and the ‘ideal’ state to be striven for on the other. It aims at a proper diagnosis of a crisis, seen as a pathological situation, so as to provide a remedy or a therapy. A critique seeking to bring about an emancipated society is not possible unless one adopts a moral standpoint. In spite of the recent attacks on such notions, Habermas does not find it necessary to give them up completely. He still believes in the possibility of connecting reason and morality in a fruitful way, without at the same time committing the blunders that the previous attempts in this direction

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had committed. These attempts, which tended towards transcendentalism, had completely ignored the actual, real-life differences among human beings and the consequent pluralism at various levels. The universalism that they claimed for themselves was problematic and even at times dangerous, as in actuality, it concealed the particularity of the values and interests on which it was founded. The challenge for Habermas, therefore was to develop an understanding of reason that would preserve the possibility of a critical normative discourse in a universalistic manner without at the same time being transcendental and hence totalitarian or hegemonic.

Habermas’ Theory of Communicative Rationality It is against the background of this problematique, that Habermas’ ‘linguistic turn’ has to be seen. A crucial step in his endeavour of building a comprehensive theory of rationality involves replacing transcendentality with linguisticality, or rather, with the human ability to communicate. In his theory of linguistic competence, Noam Chomsky (b. 1928) had tried to capture the universal pre-theoretical knowledge underlying the capacity to generate and understand a grammatically well-formed sentence, which all normal human beings possess. It was generally believed that the pragmatic features of language, that is, features pertaining to actual use of language, are so varied that they are not amenable to universalisation. Habermas however believed that the actual use of sentences in a communicative situation also presupposes a pre-theoretical knowledge of the relevant rules. This knowledge underlies the capacity to use language communicatively, and is universally present in all normal human beings. In his work on universal pragmatics, Habermas tries to theoretically reconstruct this knowledge, which is the basis of what he calls ‘communicative competence’.4 This theory enables him to ground reason on something which is universal without being transcendental. According to this theory, every act of communication is based on an implicit knowledge of the pragmatic presuppositions on which all utterances are based. There are four such presuppositions, which are called validity claims. Every utterance, at least implicitly claims to be comprehensible, true, right and truthful. That is to say, the speaker claims that what s/he is saying can be understood, that it is true and that it is normatively right. S/he also claims to be truthful. In entering a communicative situation, every

176 DEEPTI GANGAVANE person attains the right to raise any particular validity claim with reference to the utterances of one’s interlocutors and simultaneously places herself/ himself under the obligation of justifying or redeeming validity claims raised by others with reference to one’s own utterances. In the process of criticising and justifying validity claims, which basically consists of asking for and offering reasons, reason gets ‘linguistically embodied’.5 Although every normal human being, insofar as s/he is able to communicate, is endowed with rationality, its formation, development, expression and refinement occur through intersubjective processes. It largely functions within the frameworks of social practices, processes and institutions created through interpersonal relationships and the rules, criteria and values that govern them. These frameworks are obviously not absolute and ahistorical. Hence, reason as actualised in these frameworks is far from being transcendental in the traditional sense of the term. In fact, it is situational and context-dependent to a great extent. However, to assert that reason is thoroughly situational is to embrace relativism, which is not acceptable to Habermas. Though he is not an absolutist, he accepts a mild version of objectivism, which can be explained by way of referring to the nature of validity claims. The validity claims have a peculiar characteristic. The particular claims that are raised and the way in which they are redeemed, are always context dependent, receiving their content as well as the criteria used for their evaluation from the particular context in which they are raised. However, they are at the same time, context-transcending by virtue of the force of the rights and obligations that are conferred on all those who participate in any communicative situation, universally. This is how reason embodied in linguistic communication also becomes context dependent and context transcending at the same time. Communicative rationality is thus, essentially, rationality inherent in the universal human ability to communicate, that is, the ability to raise and redeem the validity claims. This understanding of rationality has many advantages. Communication necessarily presupposes a self–other context, and thus communicative rationality is not monological, but dialogical. Language, the chief means of communication, is through and through intersubjective. According to Habermas, the subject, the self itself who uses language, is not a transcendental, unitary, homogeneous subject, but one constituted through the processes and means of socialisation. Language plays a major role in constituting the subject, and it is again language which strengthens the intersubjective nexus of the lifeworld. He asserts, ‘Linguistically and behaviourally competent subjects are constituted as individuals by growing into an intersubjectively shared lifeworld and

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the lifeworld of a language community is reproduced in turn through the communicative actions of its members.’6 The dialogical or intersubjective nature of communicative rationality can be further elaborated with reference to the fact that actual communication presupposes, not merely the presence of the ‘other’, that is the addressee of communication, but an active participation and rational assent of the other. Active participation consists in taking a ‘yes’ or ‘no’ position regarding the claims that the speaker makes. This position can be called ‘rational’ if it is not a result either of some external force or strategic manipulation, or of internal constraints, and is based on reasons accepted freely by the individual. In short, the validity claims can be said to have been redeemed rationally if the participants reach an agreement based on rationally motivated assent, that is, if the only force which is responsible for bringing about the agreement is the force of the better argument. Language, which is the medium of communication, is itself a site of differences and pluralism, but at the same time it also opens up possibilities of understanding across such differences. In fact, for Habermas, understanding is the inherent telos of all communication. The context of the lifeworld in which everyday communication takes place requires that actions of different agents should be co-ordinated. In order to make such co-ordination possible, the participants should ideally have a common understanding of the external, objective world, the social intersubjective world and the inner subjective world with which the validity claims of truth, truthfulness and rightness are respectively associated. Of course, such an understanding can be genuine if it is based on a rationally motivated assent referred to in the foregoing. This connection between reason on the one hand, and language, communication and action on the other, makes the intersubjective nature of communicative rationality quite explicit. Habermas’ classification of communication assumes the connection between communication and action, or rather treats communication itself as a kind of action. He makes a distinction between two types of action based on the goals at which they aim. Whereas communicative action is oriented towards reaching understanding, strategic action is one that aims at success. According to Habermas, strategic action ultimately depends for achieving its goal on the primacy of communicative action. From the point of view of communicative rationality, ‘discourse’ is the most important category within Habermas’ classification of different types of communication. Discourse is a very special type of communicative action, which neither naïvely assumes that validity claims can be redeemed, nor actually seeks

178 DEEPTI GANGAVANE to redeem them, but takes up validity claims themselves as themes for reflective discussion. The need for discourse arises whenever argument reaches a level where validity claims and the criteria used for their justification themselves become problematic. If the participants do not switch over to strategic communication and if they do not wish to break off communication, they suspend the problematic validity claims, so as to arrive at a better understanding of these claims through critical, reflective dialogue. Since, of the four validity claims, only two can be redeemed discursively, there are two types of discourse—theoretical and practical. While the former thematically discusses the claim of truth, the latter discusses that of rightness. All types of communicative action aim at generating a consensus. The important point here is that this consensus should not be merely de facto, but has to be de jure, that is, it should be based on potential reasons. In other words, it is not enough that all participants agree about a certain claim as a matter of fact; it is also necessary that the agreement should be based on reasons which have the potential to support the claim. The implication is that the agreement should not be a result of any factor extraneous to reason. Discourse is a crucial step in the process of reaching such a rational agreement, as it refuses to accept the governing norms and criteria uncritically and brings them under a deep scrutiny, the ultimate ground of which is communicative rationality. It is an extended kind of rationality that does not merely work in a calculative, set manner within the limits of an accepted framework of rules and regulations. It is not context-bound, but transcends the context in order to examine the framework itself. The only criterion of validity and justifiability at this level is the rational assent of all the participants, and the only assurance that the assent is rational can come from the fact that all the participants have the freedom to move on to higher and higher levels of argumentation free from all internal and external constraints.

Discourse Ethics: Connecting Rationality and Morality The values of individual autonomy and responsibility are an integral part of communicative action, and due to its primacy, of all types of communication. In fact, it can be said that every act of communication is a

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normative act, that is, an act based on value considerations. The individual’s autonomy consists in taking a ‘yes’ or ‘no’ position as well as raising the validity claims if and as long as one is not convinced about them. The responsibility is posited through the obligations that one at least implicitly accepts. The implicit awareness of these values is the presupposition on which the possibility of communication is based, whereas preservation of these values is in a sense the only way to achieve the ultimate telos of communication. A complete realisation of this telos requires a dialogue completely free from external domination as well as internal restraints. The ‘ideal speech situation’ which Habermas speaks of in his early works, is one in which no participant deceives others or oneself and does not use any non-rational means of domination, direct or indirect.7 Rationality, being embedded in communicative competence, is thus inextricably bound with normativity, which is intrinsic to all acts of communication and is free from the confinements of instrumentality. To be rational is to be able to communicate, and to communicate is to establish a moral relation with the interlocutor. It is to treat the ‘other’ as a free individual, a partner, or a fellow human being in dialogue. Thus communication is an assertion of both the autonomy of the individual, as well as the solidarity of the community. However, it is also true that like all social practices, power relations operating at various levels also govern linguistic practices. In fact, many a time, language, like knowledge, becomes an instrument of domination. The complete freedom of the participants in a dialogue, which is a fundamental requirement of the ideal speech situation, is in actuality greatly circumscribed by the existing power relations. That is why the ideal speech situation always remains counterfactual, as Habermas unambiguously admits. However, the notion of the ideal speech situation can still function as a parameter against which the existing social conditions can be measured and as a regulative principle for making social practices domination-free to a greater and greater extent. Limiting the freedom of the individuals as participants in dialogue weakens their rationality and annuls the potential that reason has for building up a just society. If the emancipatory potential that lies at the core of communicative rationality is to be released fully, linguistic practices must be freed from domination to the greatest possible extent. Linguistic practices reflect the nature of social practices, of which they are a very important, integral part. Whenever these practices are restricted or distorted, communicative rationality is threatened. The critique aims at discovering the reasons underlying such a situation and analysing them so as to change the social conditions responsible for it.

180 DEEPTI GANGAVANE Through its connection with morality, communicative rationality is thus also bound with political activity guided by the vision of a just society.8 It refuses to admit that the individual is a mere node in the nexus of power operating from various directions, who is left completely at the mercy of social relations that are mechanically controlled by anonymous forces in society. It reasserts the role of the individual as a moral and political agent. This assertion is crucial for a liberatory critique, as it refutes the contention that there can be no deliberate attempt to transform the present social condition into a better one in the future. Obviously enough, Habermas rejects scienticisation or technicisation of politics. He does not view political theory as being concerned merely with the problems of efficient management and administration. Habermas’ political philosophy seeks to re-establish the connection between moral philosophy and political theory by articulating his idea of discursive participatory democracy and by proposing discourse ethics.9 Habermas makes a distinction between ethical issues, that is, issues about the good life, and moral issues or issues regarding justice.10 He believes that although given the normative pluralism of modern life it is no more possible to evolve a single, universal perspective regarding the good life, yet an attempt to reconstruct a universal framework for evaluating different competing claims can be undertaken. This is what discourse ethics attempts, by providing a formal procedure to solve the questions of justice, which are believed to be capable of being dealt with in a universalistic manner, leaving aside the substantial, context-relative issues about the good life arising in the actual struggle of life. Habermas characterises discourse ethics as being cognitivist, deontological, formal and universalistic.11 It is congnitivist in that it understands normative claims as being at par with truth claims and asserts that they can be discussed in a rational way. Since it is concerned with the ‘right’ rather than the ‘good’, it is deontological. It is formal as the procedure it suggests is arrived at by abstracting from all the content of moral argumentation and concentrating only on its formal structures. Last, it claims to be universalistic, as it tries to be completely impartial, non-relative as well as intersubjective and dialogical in nature. In order to develop such an ethics, Habermas works closely on the logic of argumentation, which is a reflective mode of communication. This type of reflective argumentation takes the form of a discourse. The kind of discourse that Habermas is concerned with here is of course practical discourse. Practical discourse, as seen earlier, thematically discusses the validity claim of rightness of an utterance and examines the acceptability of the

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prevalent ethical norms, dissociating it from the actual context in which it has been raised. Habermas’ study of the logic of argumentation at this level leads to the formulation of what he calls the ‘universalisation principle’. This principle is supposed to function as a bridge between the norms applicable to particular cases—taking care of particular needs and interests—and those which can be applied universally—by virtue of being concerned with generalisable interests—in the manner in which the principle of induction conjoins particular observations with a general hypothesis. The principle is as follows—a norm is valid if ‘All affected can accept the consequences and the side effects its general observance can be anticipated to have for the satisfaction of everyone’s interests (and these consequences are preferred to those of known alternative possibilities of regulation).’12 Though Kantian in spirit, this principle differs from the categorical imperative as well as Rawls’s concept of the ‘original position’ in an important manner. The universalisation that discourse ethics aims at does not emerge from monological, subjective reflection, carried out in isolation. It requires an actual argumentation among a plurality of participants with the objective of restoring the disrupted consensus in the domain of norm-governed interaction.13 In this connection, the reformulation of the categorical imperative suggested by Habermas is worth quoting: Rather than ascribing as valid to all others any maxim that I can will to be a universal law, I must submit my maxim to all others for purposes of discursively testing its claim to universality. The emphasis shifts from what each can will without contradiction to be a general law, to what all can will in agreement to be a universal norm.14

The crucial problem regarding the principle of universalisation, which is a formula for justifying norms, concerns its own justification. Habermas correctly observes that since this principle and the principle of induction are proposed for bridging the logical gap within argumentation, both of them cannot be justified in a deductive manner. As we have seen, the principle of universalisation is used at the level of practical discourse, where one engages in moral argumentation. Just as Habermas has worked out the pragmatic presuppositions of communication in general, here he turns to the pragmatic presuppositions on which every act of argumentation is inevitably based. Following Karl-Otto Apel (b. 1922), he offers a transcendental pragmatic justification for the principle of universalisation.15 The justification is called pragmatic, as it is derived from different types of presuppositions underlying the actual use of language

182 DEEPTI GANGAVANE in any communicative situation. It is transcendental as it presents the universal conditions of possibility of the argumentative use of language regarding the acceptability of norms. According to Habermas, the principle of universalisation is implicitly contained in these presuppositions of argumentation. Thus, the principle itself becomes a condition of possibility of moral argumentation. Habermas identifies three levels of presupposition of argumentation; namely, the logical level of products, the dialectical level of procedures and the rhetorical level of processes. The presuppositions at the first level are rules of logic and semantics, concerned with the cogency of the argument, while those on the second level are rules regarding truthfulness of all participants, their accountability for each other as well as rules that regulate the themes that can or cannot be admitted in the discussion. The third level presuppositions are rules that facilitate the process of argumentation in such a way that it can approximate the ideal conditions of speech, free from repression and coercion.16 According to Habermas, these presuppositions imply the principle of universalisation. Drawing on Apel, Habermas shows that one who rejects this principle commits a performative contradiction in the very act of rejection. One lands in a performative contradiction if one inevitably, though perhaps only implicitly, presupposes something which one is trying to reject explicitly. Thus, in the very attempt to criticise or reject this principle, the moral sceptic,17 as Habermas calls her/him, has already accepted the principle at least implicitly. The impossibility of engaging in moral argumentation without presupposing the rules of argumentation and the principle implied by them, thus, justifies the principle in a pragmatic, transcendental manner. To quote Apel: If on the one hand, a presupposition cannot be challenged in argumentation without actual performative self-contradiction and if, on the other hand, it cannot be deductively grounded without formal-logical petitio principii, then it belongs to those transcendental–pragmatic presuppositions of argumentation that one must always (already) have accepted if the language game of argumentation is to be meaningful. 18

The only way to avoid making these assumptions is to refuse to participate in argumentation. Habermas however strengthens his position by insisting on the inevitability of engaging in argumentation in any form of socio-cultural life. Argumentation is a reflective form of communicative action, that is, action oriented towards reaching understanding. The presuppositions on which it is based are embedded in the counterfactual

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conditions of communicative action. This type of action is the base of any community, and hence, it is not possible to escape the presuppositions of argumentation as long as one is a member of a community. Habermas is aware that this is only a weak normative justification that proves that argumentation proceeds on the basis of certain rules that have to be presupposed necessarily, without justifying those rules as such. The speaker’s knowledge of these rules is intuitive and in some sense infallible. However, he maintains that his own reconstruction of these presuppositions is fallible. Discourse ethics has given up the foundationalism of some of the traditional theories of ethics, which believe in the possibility of grounding moral theory on foundational principles in a deductive manner. It is characterised by Habermas as one of the reconstructive sciences, which make universalistic claims and are yet empirical. Being an empirical science, it can at least to an extent be tested empirically and can be accepted or rejected accordingly. The reconstruction itself is hypothetical, which has to be confirmed by way of testing it against individual cases. Further, there is a possibility of connecting it with other sciences or theories studying related phenomena for obtaining indirect corroboration. Habermas himself seeks such corroboration by connecting discourse ethics with Kohlberg’s work on the developmental psychology of moral consciousness. 19 Habermas asserts that the principle of universalisation is the only moral principle that discourse ethics has, and that it must be distinguished from substantive basic norms, the normative content of presuppositions of argumentation and the principle of discourse ethics ‘which stipulates the basic idea of a moral theory but does not form part of a logic of argumentation’.20 These distinctions re-emphasise the formal, universal nature of the principle as against the context-dependent nature of particular substantive norms. The actual contents of practical discourse depend on real discourses that arise from the conflict of interests in the lifeworld. The formal principle does not prejudge these issues and norms, but only provides all those who are willing to participate in argumentation with an impartial procedure that will give equal consideration to the interests of all affected. To sum up, the comprehensive understanding of rationality that is proposed by the theory of communicative rationality restores the lost link between rationality and morality. Discourse ethics works out this connection in detail, so as to demonstrate the way in which reason can actually justify norms governing action. The problems that emerge in connection with the further link between political praxis informed by moral

184 DEEPTI GANGAVANE theory are taken up by Habermas in his discussion of discursive democracy, which cannot be discussed within the limits of the present chapter.

Critiquing Habermas Habermas is one of those contemporary thinkers whose prolific writings on a wide ranges of key issues have generated a great amount of interest among scholars working in various fields. His work has been reviewed from different angles, giving rise to a number of positions, both for and against his theory. It is beyond the scope of the present chapter to discuss all the issues raised. It will only be possible to consider some points of criticism and indicate plausible responses. Habermas has often been accused of ethnocentrism, and this charge applies to both the theory of communicative rationality and to discourse ethics, which is grounded in the former. It is said that he is still holding fast to the Enlightenment values that are no more relevant in the contemporary world. Moreover these are basically values upheld by the paradigmatic modern, white, European male. The claim to universality that his theories make is only a kind of façade, hiding the underlying ethnocentrism. Such a claim glosses over the actual differences and has no place for a genuine ‘Other’. His notion of communication as basically oriented towards reaching mutual understanding is considered to be utopian and his idea of an ‘emancipated ’ or a ‘just’ society is labelled another ‘metanarrarive’ which should be rejected.21 It has also been suggested that due to its utopian character, the theories of communicative rationality and discourse ethics are practically redundant and politically irrelevant. In particular, discourse ethics is criticised for what is taken as its empty formalism. It must be mentioned that Habermas himself has responded to most of these allegations.22 It is undeniable that like any other work of its kind, Habermas’ work is historically situated within and therefore must be seen as a response to the sociopolitical and intellectual conditions of his times. Habermas is well aware of this situatedness and that is why his pursuit is not a disinterested one, but arises from a particular normative perspective that he adopts consciously. Unless one is working within a positivist paradigm, such rejection of value neutrality is not a defect in itself. In fact, this value orientation is quite consistent with the aspirations of critical theory. The criticism then should be directed at the particular values that he accepts,

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such as the autonomy and dignity of the individual, equality and justice. One way of opposing these values is of course to propose certain countervalues, which has not been adopted by anyone for obvious reasons. Another way is to treat them as being vacuous and redundant in today’s world, marked by a proliferation of normative perspectives and their interpretations. In this world, it is believed that the claim to universality is not a virtue of a theory, but an indication of the theory being a disguised threat to such pluralism. Habermas has tried to reject the charge of ethnocentrism through his quasi-transcendental pragmatic, presuppositional analysis of communication. This seems to be a strong line of argument, though it is not free from defects or limitations. It should be noted that if we remember the historical rootedness of the Habermasian project—which is not, in itself, a demerit—and his explicit objective, his bias for Western modernity could perhaps be explained, if not justified. Certain methodological questions also arise with reference to Habermas’ way of resolving certain problematic issues. His ‘reconstructive theories’, being ‘quasi-transcendental’, have an advantage over transcendental theories, as they offer at least a possibility of being related to empirical studies, and being empirically testable to that extent.23 But the problem as to the possible falsification of such theories remains unsolved.24 A similar problem arises about Habermas’ use of Piaget’s and Kohlberg’s developmental theories that view the forms of rationality acquired in modernity as the most evolved ones. That all normal human beings follow a sequence of development philogenetically, that is at the social level, as well as ontogenetically, that is at the individual level, can be treated as a hypothesis which needs to be tested empirically before being accepted. Whether this belief in evolutionary development is a bias or a scientific truth is still an open and hence a debatable issue.25 That is why Habermas’ use of such theories is problematic to say the least. Another group of problems stems from the formal nature of discourse ethics. It seems to be a good move to differentiate substantive ethical issues of the good life from formal, moral issues of justice, given the objective of retaining universalism without thereby rejecting pluralism. Within the sciences, though the substantial issues relating to facts differ from each other with reference to the areas of study within which they are raised, the overall procedure of justifying truth claims remains more or less the same at the more abstract, logical level of theoretical discourse. Similarly, though the normative issues differ greatly in actual contexts, the possibility of devising a procedure to test the justifiability of norms is worth exploring; at least it cannot be rejected at the outset.

186 DEEPTI GANGAVANE It is true that a formal, abstract moral theory of the Habermasian kind cannot properly address questions regarding the practical application of justified norms and those of motivation for actions based on these norms. Habermas takes explicit note of these points and tries to respond by defending his distinction between questions of justification and questions of application, with a clear priority given to the former. This is in consonance with the objective he has set for his project. He cannot be blamed for failing to achieve something that he did not aim at. What can be said is that discourse ethics, as it stands now, is incomplete as a moral theory. A more important point concerns the procedural definition of ‘right’ that discourse ethics offers. The procedure based on the principle of universalisation is prescribed for arriving at a rational, de jure consensus among the participants regarding the justifiability of a proposed norm. But like the consensus theory of truth, this consensus theory of rightness is fraught with difficulties. The concept of truth has to accommodate a sense of correspondence—though obviously not in a naïve manner—and pragmatic success. Within the sciences, the consensus to be arrived at is a consensus of the scientific community that works within an institutional framework, which prescribes the necessary qualifications for being a member of the community along with procedural mechanisms for conducting scientific discourse. Habermas acknowledges the need for institutionalisation of discourses: ‘…to sufficiently neutralize empirical limitations and avoidable internal and external interference so that the idealized conditions always already presupposed by participants in argumentation can at least be adequately approximated’.26 Even if one grants that such institutionalisation may be possible, it will not provide a sufficient ground for the justifiability of a norm. For it may so happen that due to the lack of sufficient knowledge or intellectual sophistication necessary for a reflective mode of thinking, the participants may arrive at a wrong decision. The problem is that in a formalist ethics, there is no way in which one can speak about the rightness or otherwise of a norm, independently of the prescribed ‘right procedure’. However, a question can definitely be asked regarding the rightness of the procedure itself. At some stage this question inevitably leads to considerations regarding the consequences of application of the norm, thus in its turn challenging the very formalism of the theory. Habermas’ discourse ethics is no exception. The procedure that Habermas proposes, though apparently formal, is ultimately rooted in the acceptance of certain values, and the justification of this acceptance can only be in terms of the consequences of such

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acceptance. To put it in another way, the understanding of ‘right’ cannot be completely divorced from the understanding of ‘good’. Ultimately all that is valued as such, is valued precisely because it is considered to be in some sense ‘good’ for life; moral values are supposed to be good not only for the individual, but for the society at large. This gives rise to a dilemma. A universalist moral theory cannot be adequately developed unless universalism at the level of ethical issues is also accepted. So, either a universalist moral theory will have to uphold a universal concept of the good to whatever extent possible, or the hopes for universalism will have to be given up. There surely are formidable difficulties in grappling with the first horn of the dilemma, yet going along with the second does not seem to be a satisfactory solution at both the theoretical and practical levels. The fact of normative pluralism makes the problem of choice at once difficult, complicated and urgent. Conventionalism, decisionism, irrationalism are the only alternatives left in the absence of a theory which can justify normative claims rationally. The challenge for all those who still believe in the possibility of a rational critique is to work towards a satisfactory theory of the universal good. Obviously such a theory will be based on a certain understanding of what it is to be a human being whose good we are trying to articulate. In this era, it may seem retrogressive to speak about ‘universal good’ and ‘human nature’, but it does not seem to be possible to completely do away with these notions, especially within the social sciences and humanities. The value of Habermas’ theory of communicative rationality and discourse ethics cannot be underestimated by anyone who is not happy with the decisionism rampant in our age. One of the merits of the theory is its effort to re-link morality and rationality. However, in order to take this project a step ahead, we need to have a theory of the universal good. Habermas himself has taken a crucial step in this regard when he declares: ‘Going beyond Kant, discourse ethics extends the deontological concept of justice by including in it those structural aspects of the good life that can be distinguished from the concrete totality of specific forms of life.’27

Notes 1. Jürgen Habermas, Postmetaphysical Thinking: Philosophical Essays, trans., William Mark Hohengarten (Oxford: Polity Press, 1995). 2. Habermas’ views regarding the contribution of these processes to the formation of subjectivity are based on those of G.H. Mead and Émile Durkheim. See Jürgen Habermas, Theory of Communicative Action: The Critique of Functionalist Reason,

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3.

4.

5. 6. 7. 8. 9.

10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21.

22.

23. 24. 25.

26. 27.

Vol. 2, trans., Thomas McCarthy (Cambridge: Polity Press, 1987), pp. 3–76; and also Habermas, Postmetaphysical Thinking, pp. 149–204. Habermas, Theory of Communicative Action, pp. 113–98. Also see David Ingram, Habermas and the Dialectic of Reason (New Haven: Yale University Press, 1987), pp. 115–18. Jürgen Habermas, Communication and the Evolution of Society, trans., Thomas McCarthy (London: Heinemann, 1979), p. 26. Also see Thomas McCarthy, Critical Theory of Jürgen Habermas (London: Hutchinson, 1978), pp. 272–91. Jürgen Habermas, Moral Consciousness and Communicative Action, trans., Christian Lenhardt and Shiery Weber Nicholsen (Cambridge: Polity Press, 1992), pp. 58–59. Ibid.: 199. Jürgen Habermas, ‘Towards a Theory of Communicative Competence’, Inquiry, Vol. 13, No. 4 (1970), pp. 360–75. Habermas, Moral Consciousness and Communicative Action, pp. 208–09. For an extensive discussion of the connection between discourse ethics and discursive democracy, see Kenneth Baynes, ‘Democracy and the Rechtsstaat: Habermas’s Faktizitat und Geltung’, in Stephen K. White (ed.), The Cambridge Companion to Habermas (Cambridge: Cambridge University Press, 1995), pp. 201–32; and Simon Chambers, ‘Discourse and Democratic Practices’, in Ibid.: 233–62. Habermas, Moral Consciousness and Communicative Action, p. 180. Ibid.: 196. Ibid.: 65. Ibid.: 66–67. Ibid.: 67. Ibid.: 79–86. Ibid.: 86–89. Ibid.: 76. Karl Otto-Apel cited in Ibid.: 82. Ibid.: 119–33. Ibid.: 95. Jean-Francois Lyotard, The Postmodern Condition: A Report on Knowledge, trans., Geoff Bennington and Brian Massumi (Minneapolis: University of Minnesota Press, 1984). Jürgen Habermas, ‘Morality and Ethical Life: Does Hegel’s Critique of Kant Apply to Discourse Ethics’, in Moral Consciousness and Communicative Action, pp. 195–215. McCarthy, Critical Theory of Jürgen Habermas, pp. 278–79. Richard Bernstein, Beyond Objectivism and Relativism (Oxford: Basil Blackwell, 1983), pp. 191–94. Anthony Giddens, ‘Reason without Revolution?—Habermas’s Theorie des Kommunikativen Handelns’, in Richard Bernstein (ed.), Habermas and Modernity (Oxford: Polity Press, 1995), pp. 95–121. Habermas, Moral Consciousness and Communicative Action, p. 92. Ibid.: 203.

10 Debates on Protecting Traditional Knowledge in the Age of Globalisation: A Call for Re-imagining Political Theory Kannamma Raman

For a short period of time, the ascendancy of linguistic philosophy and empirical political science resulted in claims being made about the death of political theory.1 In fact, at ‘… the height of the behavioral revolution in the 1960s, a few self-styled “hardboiled” scientists dismissed theory altogether as little more than mythology: moralizing fairy tales dressed up as a kind of prescriptive philosophy that confounded facts and values’.2 Cynics argued that everything that is worth saying on political theory has already been said ad nauseam, and hence drew the conclusion that it is time we gave up on what is nothing more than a dreary reiteration of ideas. Though we have witnessed a revival of political theory since the 1970s, it has become increasingly clear that as conditions of social life change, the words we use, and the ideas they convey lose old meanings and acquire new ones. For this reason, the continuous rejuvenation of political principles is both vital and inevitable. It is therefore not surprising that the ongoing process of globalisation challenges many of the traditional assumptions of political theory and has necessitated the recasting of established notions. Globalisation is not, as some suggest, narrowing or foreclosing political options and discussion; on the contrary, it is reinvigorating the contemporary political terrain. An important development that highlights the complexity of the situation is the present debate on the protection of traditional knowledge.

190 KANNAMMA RAMAN This debate is located within the larger concern about a new enclosure3 movement that is making a concerted effort to bring everything under the intellectual property law framework. The ideological underpinning of this effort is the belief that all commons are inefficient, if not tragic.4 In order to examine the issues at stake, we will first seek to understand certain aspects of globalisation, and subsequently analyse the reasons for the sudden interest in traditional knowledge and the appropriateness of the efforts underway to protect it. For the purpose of this chapter, traditional knowledge, […] refers to the knowledge, innovations and practices of indigenous and local communities around the world. Developed from experience gained over the centuries and adapted to the local culture and environment, traditional knowledge is transmitted orally from generation to generation. It tends to be collectively owned and takes the form of stories, songs, folklore, proverbs, cultural values, beliefs, rituals, community laws, local language, and agricultural practices, including the development of plant species and animal breeds….Traditional knowledge is mainly of a practical nature, particularly in such fields as agriculture, fisheries, health, horticulture, forestry and environmental management in general.5

Holders of local knowledge are not mere transmitters of a static cultural legacy, but conscious actors who perform and manipulate the subject matter with which they deal. Therefore, this knowledge is neither old nor unscientific. Customary laws and practices generally regulate access to this knowledge.6

Understanding Globalisation Defining globalisation is problematic. Due to the contentious nature of the process, definitions given by scholars often seek to win the debate even before it starts. For the purpose of this chapter, I would describe globalisation as a process of change predominantly structured around four interconnected features, namely, (a) post-national forms of production and distribution of goods and services that are propelled by growing levels of international trade, foreign direct investment, and capital flows; (b) rapid proliferation of information, communication and media technologies that facilitate exchanges and instantaneously connect people across vast geographies and place a premium on knowledge-intensive work; (c) ever-increasing levels of worldwide migration; and (d) resultant

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cultural changes that challenge traditional values and norms in both the sending and receiving countries.7 In this context, the State is one of the principal agents of globalisation and continues to play an important role in safeguarding the interests of the market forces. Governance means the maintenance of law and order, the protection of property (including intellectual property), provision or assurance of infrastructure, a sound and efficient basis and machinery for the settlement of disputes, ‘sensible’ labour laws, minimal control and regulation and the timely granting of statutory and other clearances for economic activity. A complex division of labour in governance has emerged, in which states share power and governance capacity with supra-national agencies like the United Nations (UN) and its specialised agencies, the World Trade Organization (WTO), the International Monetary Fund (IMF) and the World Bank, and functionally-specific public, quasi-public and private bodies. Having described globalisation in this manner, it is necessary to note that, as Derrida asserts, the entire concept of globalisation—or ‘mondialisation’ as he prefers to call it—is inherently a contradiction. It both does and does not take place. The technological facts (such as instant communication) of globalisation exist, but the promises they bring of greater equality and democracy and the creation of a global village have not yet come to fruition. In this latter sense, globalisation does not exist.8 Further, as Heidegger accurately prophesied, new communication and information technologies have spawned novel possibilities for dramatically extending the scope of virtual reality. ‘Distant sites of the most ancient cultures are shown on film as if they stood this very moment amidst today’s street traffic….’9 This creates an illusion of intimacy, and yet it has not engendered the necessary respect, recognition and tolerance that must accompany it.10 Instead of opening up new possibilities for rich and multi-faceted interaction, the abolition of distance has tended to generate a ‘uniform distancelessness’ in which fundamentally distinct objects become part of a bland homogeneous experiential mass.11 The recognition that each culture possesses specific wisdom and characteristics, its own novelty and uniqueness, born out of its own individual struggle over thousands of years to cope with nature and circumstance, has been drowned out by the hue and cry that the world is now a global village. The Western model—neoliberal markets, democracy and the rest—is being viewed as the template for all.12 Further, easy global travel and the explosive growth of the World Wide Web, coupled with increasingly powerful search engines now expose formerly inaccessible knowledge to the glare of the global media and the market.13 In this sense, market encroachment into once-sacrosanct areas

192 KANNAMMA RAMAN is emerging as the sleeper political issue of the early twenty-first century. Thus we are witnessing what Marx expressed 150 years ago: Finally, there came a time when everything that men had considered as inalienable became an object of exchange, of traffic and could be alienated. This is the time when the very things which till then had been communicated, but never exchanged; given, but never sold; acquired, but never bought—virtue, love, conviction, knowledge, conscience, etc.—when everything finally passed into commerce.14

Without really getting into the debate on whether globalisation is a new phenomenon or merely a continuation of the past, I would suggest that the present process bears a striking similarity to certain aspects of the colonial period. The expansion of European society through colonialism and the conquest of non-European peoples for economic and political advantage brought most of the territories of Asia, Africa and the Pacific under the imperial rule. This was facilitated by international legal doctrines that legitimised the appropriation of lands already occupied, by declaring them as terra nullius, or empty land. European colonialism was based on the belief that it was their duty to discover and conquer so that they could bring ‘civilised values’ to the natives. A similar attitude was revealed more recently when the head of Nike corporate education remarked, ‘I think we’re doing a great job quite frankly, to help evolve some of these cultures’. He said that Vietnam’s culture was ‘just emerging’, thanks in part to Nike investment.15 The central problem of the encounter, then, and now, is the imperialistic pretension to universality made on behalf of Western16 episteme and the unwillingness of its believers to accept the existence of competing systems of knowledge.17 This is because the Western narrative of knowledge is dominated by scientific method and this implies, as pointed out by Lyotard, a demand for legitimation and an unwillingness to accept anything that fails to conform to the rules.18 The encounter proved fatal for local knowledge systems as the supreme confidence of the Westerners or westernised elites in their knowledge, coupled with the superior means of political and economic force at their disposal, enabled them to dominate.19 The consequence was the fundamental cognitive triage and erasure that was imposed on the rich knowledge heritages of non-Western people. By declaring non-Western societies’ knowledge and innovations that guided and sustained them as non-scientific, their cultural and intellectual contributions were systematically obliterated.

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An example of this attitude was exposed by Frédérique Apffel Marglin’s research on the origins of smallpox vaccination in India. In general, we credit Edward Anthony Jenner with this innovation. However Marglin shows that variolation was a much older and effective practice used in India, and that knowledge of this folk practice probably reached England and became available to Jenner. In a final twist during the colonial rule, the British, in the name of science, suppressed the successful folk practice. This initially led to an increase in the incidence of the disease and also increased the cost of prevention. The Western technology for dealing with smallpox triumphed primarily due to the power of the colonial government to outlaw variolation. This was justified on the grounds that variolation was ‘tainted’ by its association with what was perceived as superstition and idolatory, and hence did not conform to the scientific approach trusted those trained in the Western episteme.20 Also, the disdain with which traditional knowledge was treated can be gauged from Thomas B. Macaulay’s ‘Minute on Education’ which states among other things that, …the dialects commonly spoken among the natives of this part of India, contain neither literary nor scientific information, and are moreover so poor and rude that, until they are enriched from some other quarter, it will not be easy to translate any valuable work into them …. all the historical information which has been collected from all the books written in the Sanscrit [sic] language is less valuable than what may be found in the most paltry abridgments used at preparatory schools in England.21

Further, the proliferation development allowed the construction of a linear scale on which industrialised countries seen as ahead of the Third World, and the modern sector clearly ahead of the traditional sector within the Third World. The ‘developing’ or ‘underdeveloped’ tags missed, and continue to miss, the ways in which these countries possess thousands of years of traditional knowledge stored in their cultural patterns. More crucially, this notion created a mindset, especially amongst the elite, that only by becoming like clones of their erstwhile colonial masters could nirvana be reached.22 This meant, at best, a benign neglect of traditional knowledge as it did not fit into the agenda of modernisation. What was disregarded is that during the colonial phase, considerable ‘borrowing’ of resources took place and the approach was generally one of take-and-run. It is ironical that, in most cases, the strict rules governing access to knowledge that applied to the local population were waived for outsiders accessing the same.23 This meant that local knowledge was more

194 KANNAMMA RAMAN easily shared with the marauders than with their own people. Christopher Columbus was, among other things, an archetypal bioprospector, who began the familiar process of transferring the countless genetic resources from indigenous peoples to the developed nation-states of Europe.24 The British Empire instituted regular plant collection drives. During the voyage of the Beagle, Charles Darwin simply collected what interested him, from the Galápagos and elsewhere, and took it home. The Royal Botanical Gardens took rubber trees from Brazil, and planted them in Southeast Asia; they took cinchona seeds from Bolivia, in violation of Bolivian national law, and planted them in India. The spirit of the time was revealed when Jefferson suggested that the ‘…greatest service which can be rendered any country is, to add an useful plant to its culture’.25 Commodore Mat Perry’s naval mission to Japan collected a wide variety of plants to take back to the United States. Similarly, during the mid-twentieth century, Richard Schultes could, by befriending traditional healers, collect thousands of specimens of medicinal plants, hundreds of which had not even been identified taxonomically.26 Such interactions resulted in major transfers of knowledge from the so called natives or traditional people to the West, where many private actors profited immensely. It is only recently that people have started recognising the economic implications of traditional knowledge. To cite a few instances: mayapple (podophyllum peltatum), used by native Americans for centuries to treat skin warts, ulcers and cancerous growths, is the source of Etoposide used for the treatment of cancerous growths with a USD 500 million world market value. Similarly, vinca alkaloids originating from the traditional medicinal use of periwinkle led to blockbuster drugs Vincristine and Vinblastine, with estimated global sales of USD 300 million. It was also recognised that in many of these cases while commercial cultivation thrived, the plants could no longer be found in nature by the local communities that had historically their properties and used them. To cite an instance, sarpagandha (rauwolfia serpentina) was used by Indians for centuries to treat mental disorders, insomnia and snake bite. Once a German firm picked it up and developed, based on the alkaloid reserpine from rauwolfia serpentine, a drug to treat high blood pressure, its natural populations dwindled and it is at present on the endangered species list.27 The issue came to the forefront in the late 1990s due to the internationalisation of intellectual property, when patents were obtained for certain properties of ayahuasca, neem, turmeric, rosy periwinkle, hoodia cactus, arogyapaacha and others.28 Further, rapid developments in biotechnology and the emergence of the knowledge society accentuated the

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value of local knowledge. Biotechnology and new patent laws allowed companies to capitalise on the smallest of life forms. Consequently, Merck patented microbial samples from nine countries including soil bacteria from a heather forest on Mount Kilimanjaro, a Mexican soil fungus useful in the manufacturing of male hormones, a fungus found in Namibian soil of potential use in treating manic depression, a soil bacterium in India that serves as an anti-fungal agent and a Venezuelan soil bacterium patented for use in the production of antibiotics.29 Equally important is the greater awareness generated by concerned groups protesting against what they perceived to be the injustice perpetuated by the present model of globalisation. Due to the outrage expressed over the years, there has been considerable debate in national and international forums about the need to protect traditional knowledge. Suddenly, the rhetoric of biopiracy came to be heard, as did the larger debate about the general commodification of knowledge and the emergence of academic capitalism.30

From Biosharing to Biopiracy The term biopiracy entered the lexicon in a specific context. Considerable apprehension was expressed when the United States introduced intellectual property rights (IPR) in the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) as a new issue and accused the Third World of ‘piracy’. The US estimates suggested that royalties lost in agricultural chemicals alone amounted to USD 202 million, and totalled USD 2,545 million for pharmaceuticals. It was in this scenario that Rural Advancement Foundation International (RAFI)31 contended that if the contribution of Third World peasants and indigenous people were taken into account, the US alone would owe Third World countries USD 302 million in royalties for agriculture and USD 5,097 million for pharmaceuticals.32 This was described as ‘biopiracy’, in that, corporations from the developed world claimed ownership of or took unfair advantage of the genetic resources and traditional knowledge of developing countries and worse still, did so without compensating those who originally developed such knowledge. This assertion got credence when the UN estimated that developing countries lost at least USD 5 billion annually in unpaid royalties to multinational corporations (MNCs) that appropriate traditional knowledge.33

196 KANNAMMA RAMAN However, a word of caution is needed at this juncture. Though the appropriation of traditional knowledge has been largely caused by MNCs, they are not the only culprits. The patent on turmeric that was successfully challenged by the Government of India was acquired by two scientists of Indian origin working at the University of Mississippi Medical Center. The claim covered a method to promote the healing of a wound by administering turmeric to the patient. The researchers admitted in their patent application that it was a commonly used traditional remedy, but claimed, ‘there are so many home remedies all over India, but are these scientifically valid or just gibberish? That’s the point. We have used turmeric on patients. It has been clinically treated’.34 More recently, it was a person of Indian origin who successfully copyrighted his style of yoga. Pilfering of knowledge happens within a country as well. For instance, senior officials from a government-run research centre in India tried to appropriate and patent cure for malaria known to the Onge tribe living in the Andaman Islands.35 Even academic centres/universities have been guilty of such practices. The Mayan people’s traditional drink, pozol, is a source of nutrition and a natural preventative for various intestinal ailments. In 1999, the Dutch corporation Quest International, in conjunction with the University of Minnesota, obtained a patent for an isolated micro-organism (or active component) of the drink. Both the University of Minnesota and Quest International refused to recognise the basic indigenous knowledge that was used to develop pozol.36 Therefore, it is important that the debate goes beyond the usual rhetoric about the MNCs. Non-governmental organisations (NGOs) and others must realise that for those whose knowledge is being misappropriated, it does not really matter whether such an act is perpetuated by a domestic or an international company or for that matter, expatriates or a university. It must be understood that misappropriation of knowledge by anyone is unacceptable. It is this that makes protection of traditional knowledge mandatory.

Protection of Traditional Knowledge Traditional knowledge can be classified, as suggested by N.S. Gopalakrishnan, into four categories according to its level of prevalence: (a) information that is commonly known and is in constant use such as the common therapeutic uses of neem, tulasi, turmeric, and so on;

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(b) information that is well-documented and available to the public for examination and use, for instance, the Ayurvedic or Unani texts; (c) information that is not documented or commonly known but known only to small groups of people and not revealed to others outside the group, such as, tribal knowledge; and (d ) information known only to individuals or members of the family and none else, such as, the information used by the medical practitioners for treatment.37 One of the most important reasons as to why traditional knowledge should be protected is that a majority of the world’s poorest people, given their marginalisation from market economies, depend upon their traditional knowledge for survival. According to the World Health Organization (WHO), up to 80 per cent of the world’s population depends on traditional medicine for its primary health needs.38 Similarly, traditional agricultural systems have successfully enabled millions of people to subsist for thousands of years. For instance, the petaca (tobacco pouch) variety of rice grown in Panama had little to recommend about it since it was not tasty, turned hard when left in the pot overnight, broke when shelled, and did not sell well on the market. Yet it is grown because ‘it always gives a little’, that is, the crop never fails completely. In other words, petaca promises self-sufficiency in foodstuffs for the households and buffers them from starvation. It also helps maintain the community.39 Respect, preservation and maintenance of traditional knowledge cannot and should not be justified solely by its instrumental or utilitarian value. In other words, traditional knowledge should not be protected merely because it is relevant to biodiversity conservation and sustainability and even less because some of it has market value. It is noteworthy that a great deal of traditional knowledge has no commercial potential whatsoever, but this does not make it any less worthy. The disappearance of traditional knowledge is a tragedy for the peoples and communities that depend upon the integrity of their knowledge systems for their cultural and even physical survival. To elaborate on this, an important feature of the Tigray form of institutional organisation in Ethiopia is that it facilitates easy sharing or exchange of seeds among the farmers and even outside communities. One channel of seed exchange is the practice of offering a portion of the best-selected seeds as a gift to the poor in connection with the St. Mary celebration in the Orthodox Church. Because these are considered blessed seeds, the poor will take some home and plant them and hence be saved from destitution.40 Any attempt to patent seeds could undermine what Appadurai calls the sociality of the village community, and this could pose a serious threat to the very survival of the system.41

198 KANNAMMA RAMAN Having recognised the need to protect traditional knowledge, we will examine the means by which this can be achieved. Over the years international forums like the WTO, World Intellectual Property Organization, Food and Agriculture Organization (FAO), the United Nations Educational, Scientific and Cultural Organization (UNESCO), the UN Human Rights Council and various state governments have been debating about how to set up globally agreed rules to protect traditional knowledge. These endeavours have, more or less, crystallised into two broad approaches to protect traditional knowledge. The first seeks to protect traditional knowledge by bringing it under the IPR regime. IPR laws are being sought in the form of ‘positive’ and ‘defensive’ protection. Positive protection refers to the acquisition by the traditional knowledge holders themselves of an IPR such as a patent or an alternative right provided in a sui generis system. Defensive protection refers to provisions adopted in the law or by the regulatory authorities to prevent IPR claims to knowledge, cultural expression or products being granted to unauthorised persons or organisations. The second approach seeks to protect traditional knowledge within the human rights discourse. In the next section we will examine the appropriateness of such efforts.

Traditional Knowledge and Intellectual Property Rights Before examining the appropriateness of using IPR to protect traditional knowledge, certain features of its need to be clarified. First, ‘intellectual property’ is a generic term used to refer to a group of legal regimes, each of which, to a different degree, confers rights of ownership in a particular subject matter. Copyright, patents, designs, trademarks and protection against unfair competition form the traditional core of intellectual property. Second, the Western legal mechanism is unique in its conception of intellectual property, that is, its notion of knowledge as something that can be owned, and the concomitant belief that the rights consequent to such ownership can be protected by law. Built upon the Cartesian duality of mind and body, IPR are aligned with practices of rationality and planning. This is part of a Western epistemology that disengages mind from body, subject from object, observer from observed, and then accords priority, control and power to the first half of the duality. The term ‘intellectual’ denotes the knowledge side and indicates that the context of use is unimportant. Thus, it is believed that medicines and foodstuffs developed

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for specific uses in one society have fundamental features that can be abstracted, written in a technical form, and put to use anywhere.42 Economic historians conclude that intellectual property appeared only during the early development of capitalism. Unlike capital and labour, knowledge is a public or what economists call ‘non-rivalrous’ good.43 Once knowledge is discovered and made public, there is no marginal cost to sharing it with more users. As Arrow observes, ‘[i]n the absence of special legal protection, the owner cannot…simply sell information on the open market. Any one purchaser can destroy the monopoly, since he can reproduce the information at little or no costs’.44 Further, the creator of knowledge cannot prevent others from using it.45 One solution to this is for the owner to exclude all others from using the information, but this solution is beneficial neither to the owner nor to the society. The other solution is to create legal measures to allow information to be appropriated as a commodity. Instruments such as trade secrets protection and patents, copyright, and trademarks provide the creator with such protection. It is crucial to remember that the underlying purpose of IPR is to turn knowledge into a marketable commodity that can be sold.46 The main justification for strong IPR is that patents and licences provide incentives to ‘increase the number of commercially available products and thereby serve the public interest.’47 From its historic roots in Europe, the IPR discourse has, over the years, spread across the globe.48 The process reached its acme with the signing of the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). Third, there is a deep contradiction between IPR, that is, a Statebacked monopoly handed out to individuals or firms, and the popular Neoliberal vision of globalisation that valorises ‘privatisation’ and free market economics. Two questions that must be addressed when discussing IPR and the rights of the custodians of traditional knowledge are: first, do IPR have characteristics that are inherently unjust to traditional knowledge holders? Second, to what extent can IPR be used to protect their rights? The answer to the first question is unfortunately in the affirmative as the linkages between IPR and past colonial expropriation of unused land are very blatant. Christopher Columbus was issued with a common form of charter or ‘letter patent’ for the discovery and conquest of foreign lands, in accordance with which he was entitled on behalf of his principals to conquer and own the lands and indigenous peoples of America. The fact that peoples already lived on those so called empty lands presented little problem:49

200 KANNAMMA RAMAN This same vision of what kinds of activities count as productive use and are thus entitled to legal protection, as opposed to those that are characterized as merely an aspect of ‘the natural,’ is repeated today in the TRIPS discussions of what qualifies as ‘an inventive step’ for purposes of intellectual property protection. There is an unpleasant dichotomy between defining the products of laboratory research as intellectual property subject to the full panoply of protections afforded by TRIPS and formal domestic law, while characterizing the uses and experimentation of indigenous peoples as ‘traditional knowledge’ excluded from these protections.50

Other objections relate to the theoretical underpinning of conventional IPR. In particular, serious misgivings have been raised about the appropriateness of applying the IPR framework that is historically associated with the ideology of ‘possessive individualism’51 and ‘unstoppable selfinterest’52 and romanticised individual authorship when discussing things like agricultural practices, seed plasm and oral narratives belonging to communities rather than individuals.53 More crucially, it is suggested that intellectual property protection will result in fundamental cultural distortion as it is designed to recognise, legitimise and consequently empower the Western scientific narrative alone. Also, as mentioned earlier, the underlying rationale of IPR is to turn knowledge into a marketable commodity, not to conserve such knowledge within its cultural context.54 In advancing commercial interests, IPR facilitates the commodification of all things, irrespective of the values that might be attached to them. One may question the acceptability of the commodification of knowledge and the extension of markets and of market-oriented thinking to spheres of life once thought to lie beyond their reach. Michael Sandel delineates two objections to extending the reach of market valuation and exchange. The first is an argument from the standpoint of coercion. It points to the injustice that can arise when people buy and sell things under conditions of severe inequality or dire economic necessity. The second is an argument from corruption, or the degrading effect of market valuation and exchange on certain goods and practices.55 Each objection has a different philosophical starting point. While the former stems from notions of autonomy, consent, and inequality in background conditions, the latter stems from the moral worth of the object at stake. The ‘voluntariness’ formulation seeks to determine whether consent to the transaction was genuinely voluntary. Its theoretical underpinnings lie in the Kantian idea that humans cannot realise their true nature as free and rational beings if they are overly influenced by the coercive effects of money.56 It is not, strictly speaking, an objection to markets per se, only

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to markets that operate against a background of inequality severe enough to create coercive bargaining conditions.57 Given the history of the international intellectual property system, the notion that the TRIPS Agreement was based upon consensus is a myth. When developing countries were faced with the option of accepting TRIPS standards, or of losing their right to participate on an equal footing in the multilateral trading system, most chose the former. Hence, it would be quite appropriate to maintain that hard IPR standards were forced on the less developed countries.58 It is due to this that some see IPR as a newer incarnation of colonisation, and a mode of oppression, rather than a celebration of the rights of inventors. 59 A second mentioned type of objection to commodification points to the degrading effect of market valuation and exchange on certain goods and practices. The contention here is that certain moral and civic goods are diminished or corrupted if bought and sold for money. The argument from corruption is intrinsic in the sense that it cannot be met by merely fixing the milieu within which market exchanges take place. It resists the thesis of Benthamite utilitarianism that all goods are equal and that all values and virtues can be translated, without loss, into monetary terms.60 Without a doubt, it is unfair to seek to fit centuries of ancestral effort within the straightjacket of personal ownership of intellectual property. The secular language of IPR law has an aversion to making any arguments that rely on what are considered to be personal or metaphysical issues, while the spiritual dimensions of knowledge lie at the heart of an indigenous culture. Thus, it is a clash of very different worldviews and imposition of patent protection will inevitably destroy the very core of traditional knowledge. In addition, talk about compensating the owners of traditional knowledge is problematic because, as Walzer notes, goods have no natural meaning; their meaning is the result of socio-cultural construction and interpretation. In order to determine just compensation, we have to determine what it means to those for whom it is intended.61 While the custodians of traditional knowledge might consider even the process of fixing a ‘price’ denigrating and completely unacceptable, the market forces will base the price on what the market will bear. Therefore, while the market will know at best the price of the object, the custodians of traditional knowledge alone will know its value. Additionally, the existing IPR discourse makes it difficult, if not impossible, for holders of tradition knowledge to claim any protection. First, in the US, a patent application is judged on four criteria. The invention must be ‘useful’ in a practical sense (the inventor must identify some useful purpose for it), ‘novel’ (that is, not known or used before the filing),

202 KANNAMMA RAMAN and ‘nonobvious’ (that is, not an improvement easily made by someone trained in the relevant area). The invention also must be described in sufficient detail to enable one skilled in the field to use it for the stated purpose (sometimes called the ‘enablement’ criterion). Most traditional knowledge will fail to meet the requirements of novelty and inventive step. Second, traditional knowledge is held collectively—there is not a single individual or discrete group of individuals that can be identified as the inventor in whose name an application can be filed. The tale of two wheat varieties, ‘Norin 10’ and ‘Turkey Red’, shows the complexity of assigning sovereignty and rights to traditional intellectual property. Who can claim authorship of these varieties and the dwarfing trait that is worth billions of dollars: Japanese farmers, farmer Abraham Fultz in Pennsylvania, Ukrainian Mennonites in Kansas, Cossack peasants in the Ukraine, or scientists in Japan and the United States who recognised the potential of these farmers’ varieties? This is a tricky question as all of them had a role to play in developing ‘Norin 10’ and ‘Turkey Red’.62 Any number of such instances can be cited. Third, most traditional knowledge exists within oral culture and it is difficult to transform it into a written format. However, for traditional knowledge to be part of the conventional IPR regime, it must be published in a written form. In the process of granting a patent, prior art is determined not by oral narrative, but by publication in written form. Another constraint is the indigenous communities’ lack of financial power to register and service IPR, particularly the expensive patenting process.63 It is worth mentioning that despite appropriate noises that have been made in international forums, the effort to protect traditional knowledge has not progressed. Traditional knowledge holders simply do not have the political influence to change the system.64 In view of the serious doubts raised by a number of concerned persons, the debate on the protection of traditional knowledge by intellectual property law has recently moved to the human rights forums. In the next section we will examine whether the current human rights framework is likely to be more effective in protecting traditional knowledge.

Human Rights and Traditional Knowledge Article 27.1 of the Universal Declaration of Human Rights (UDHR) and Article 15(c) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) recognises IPRs as a human right. Sharp

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differences were expressed even at the drafting stage on intellectual property being incorporated in the UDHR.65 However, using a human rights rubric, intellectual property is recast as ‘a social product with a social function and not primarily as an economic relationship’.66 Hence, the right to intellectual property is counterbalanced by attempts to protect the rights of the indigenous and local people. For example, Article 1 of the ICESCR establishes the right of self-determination, including the right to dispose of natural wealth and resources. This implies the right to protect and conserve resources, including intellectual property. Besides, Article 27.2 of the UDHR which states that ‘[e]veryone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author’ provides a ‘soft legal basis’ for indigenous and local peoples to be entitled to benefits arising from the use of their knowledge and resources. There are, however, a number of limitations to using human rights as a legal instrument to protect traditional knowledge of indigenous and local peoples. First, whereas traditional knowledge is a collective property and generates collective rights, the UDHR by and large provides only for individual rights. Rooted in natural rights theories, social contract theories, Kantian notions of the individual, and other philosophical antecedents, it is generally assumed by liberal democratic governments that legally cognisable human rights are individual rights that stand against the potential tyranny of government.67 As a consequence, it is often assumed that ‘[a]ny rights that might arise from solidarity would not be human rights’.68 For those opposing the very idea of collective rights, its potential threat to individual rights seems to be one of the strongest arguments. Although the collective human rights of indigenous and local communities are being increasingly recognised, they are yet to secure universal recognition. Even when they are recognised, such recognition comes with the caveat that the ultimate purpose and justification of group rights is not the protection of the group as such, but the protection of individuals who compose it.69 It should also be noted that many non-Western people are not entirely comfortable with the present human rights discourse, as their notion of rights is quite different from the liberal notion of rights. It is suggested that, […] indigenous peoples generally think in terms of the freedom of individuals to be what they were created to be, rather than being free from certain kinds of state encroachments. Along with this highly individualized notion of ‘rights’ is a sense of unique personal responsibilities to kin, clan and nation. Each individual’s ‘rights’, then, consists of freedom to exercise

204 KANNAMMA RAMAN responsibilities towards others, as she or he understands them, without any interference.70

Similar sentiments have been expressed by several Africans who argued that they have a complex structure of communal entitlements and obligations grouped around four ‘Rs’: not ‘rights,’ but Respect, Restraint, Responsibility and Reciprocity. They argue that in most African societies group rights have always taken precedence over individual rights, and political decisions have been made through group consensus, rather than individual assertions of rights.71 In view of this, they view any attempt to push the human rights agenda with suspicion and scepticism. As a critic noted, human rights ‘…might turn out to be a Trojan horse, surreptitiously introduced into other civilizations, which will then be obliged to accept those ways of living, thinking and feeling for which Human Rights is the proper solution in cases of conflict’.72 This fear is echoed by Balakrishnan Rajagopal when he suggests that we have become so accustomed to considering human rights as the sole legitimate discourse of resistance in the Third World that peoples are being forced to adopt and occupy its categories even when these are alien to them.73 What is equally problematic is that states have generally adopted human rights norms to the extent that these have tended to buttress their own role in directing development.74 Development invariably has meant ‘…movement from traditional relations, traditional ways of thinking, traditional ways of dealing with health and education, traditional methods of production, to more “modern” ways’.75 This kind of framework does not augur well for traditional knowledge. Another issue of concern is that that responsibility for enforcing UDHR provisions is vested in the State. This is tricky since it is well known that the State’s role in protecting the rights of indigenous and local people has been dubious, to say the least.76 Though the fears are justified and need to be addressed, I would like to suggest that we need to push the envelope of rights categories to deal with new forms of injustice. A re-integration of IPR into the international human rights framework will valorise culture not as an inventory of goods, or as a set of established differences to be valued as scarce resource, but as a means for engaging in more productive forms of dialogue across and between communities.77 However, a purely rights-based approach grounded on the elastic concept of justice may fail, since it is still considered a soft law and states and non-State actors cannot be penalised for violating it. Of late, states have positioned themselves as guardian angels seeking to negotiate favourable terms and conditions on behalf of the custodians of traditional knowledge. States have often successfully asserted that they

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alone have sovereign rights over any sort of genetic material and to regulate its access by means of national legislation. For instance the Convention on Biological Diversity, adopted at the 1992 Earth Summit in Rio de Janeiro, began its discussion of genetic resources by proclaiming the sovereignty of nations over them. It is to this aspect that we would like to turn our attention.

Traditional Knowledge and the State Western political theory has for long presupposed the existence of territorially bound communities, whose borders can be more or less clearly delineated from those of others. Moreover, it is often argued that the domestic arena represents a normatively privileged site, since fundamental normative ideals and principles (such as, liberty or justice) are more likely to be successfully realised in this arena than in relations among states. Therefore, it is not surprising that most international agencies and even NGOs have supported the notion that the State should be responsible for protecting traditional knowledge. Such an endeavour is counter-productive as states have generally not protected the rights or interests of indigenous or traditional communities. The State can undermine traditional knowledge due to two major reasons. First, despite its claims in the international fora about the sanctity of local knowledge and the need to conserve it, the State is also enmeshed in the same market rhetoric that seeks to commodify traditional knowledge. Conformity to the demands of this ideology has now become absolutely critical for the economic survival of nations. The worth of a nation is now primarily measured in terms of its credit assessment.78 Cash-stricken governments often strike biotrade deals that might not further the interests of their traditional knowledge-holders. Another risk is pressure in the form of investments designed to transform indigenous cultures into a marketable commodity.79 In addition, states are generally indifferent to many of the issues related to traditional knowledge and generally take up the matter when they are pushed to do so by various concerned groups. For instance, India and Pakistan did not take action against the gradual adoption of the generic status of basmati over the last 20 years. India did not even lodge a formal protest when the US Federal Trade Commission formally declared ‘basmati’ generic.80 The US Patent and Trademarks Office granted Patent No. 5,663,484 on ‘basmati rice lines and grains’ to the Texas-based company RiceTec.81 RiceTec then started marketing

206 KANNAMMA RAMAN Texmati as ‘American basmati’ in the US and in some European countries. India woke up to the issue only when it was feared that this would reduce the market for basmati. Moreover, there is little reason to believe that the State will use the funds negotiated on behalf of individuals or indigenous communities for their benefit. Given the choice between respecting the wishes of local communities and potentially enhancing their country’s overall technological development and resource-starved coffers, national governments will generally choose the latter. This is evidenced by struggles the world over to halt and reverse the loss of cultural knowledge that is sometimes a deliberate policy and at other times an accidental by-product of State development projects. Hence it is asserted that ‘[v]esting the sovereign with rights over genetic material…may be likened to having the proverbial fox guard the henhouse’. 82 It is therefore hardly surprising that traditional knowledge holders often find their governments to be more part of the problem than allies in the search for solutions. Due to the paternalistic regimes that function in almost all states, communities have effectively lost direct control over genetic material. For instance, the Kani tribe of the southern Indian State of Kerala has for centuries used arogyapacha, a wild regional plant, to cure liver diseases. The Tropical Botanic Garden and Research Institute (TBGRI)—an independent Indian government research body—found the plant to contain anti-fatigue, immunity-enhancing and liver-protecting qualities and developed a drug now known as Jeevani. TBGRI secured a patent for Jeevani in partnership with the Kani tribe in order to share the benefits of the sale of the drug. The agreement between the Kani and TBGRI stipulates that half of all the profit from sales of the drug accrue to the Kani tribe. The tribe was expected to use this income to fund projects to promote the welfare of its people. This acclaimed benefit-sharing model was even awarded the United Nations Equator Prize in 2002. Now the Kani tribe is finding it difficult to access the plant which is grown under the shade of the natural forest canopy. It is reported that the State Forest Department guards on the field demand (from those attempting to collect the plant) a ‘share’ of the supposed licence fee and royalties that the tribal people are entitled to.83 It is due to such incidents that the efforts of countries like India to build a database of traditional knowledge is viewed with scepticism and apprehension. What is worse, the whole rhetoric of traditional knowledge is being appropriated by reactionary forces to promote phoney nationalist agenda advocating a return to some pristine glorious past. What is being sought is some kind of museumising of traditional knowledge into ghettoes and

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denying access to ‘outsiders’ so that its pristine purity is not destroyed. Doing so would inhibit the dynamic process of culture creation, imagination and communication. Such ‘reservations of the mind’84 would further impoverish the very indigenous societies that were being ‘protected’. What traditional knowledge needs is ‘…a site, a theatre of encounter which is not patronising, not preservationist, not fundamentalist, but is open and playful’.85 Further, in many cases traditional knowledge and indigenous innovations cut across present day political boundaries. For instance, the San people who possessed knowledge about a cactus called hoodia live in Angola, Botswana, Namibia, and the Republic of South Africa. The San had traditionally used hoodia to stave off hunger while hunting. While negotiating with authorities who sought commercially exploit hoodia, the first question they faced was: who is the real owner of the knowledge, and who could legitimately negotiate and conclude a benefitsharing agreement? Initially, there were conflicts over the royalties and heated debates among the San groups. Ultimately, they decided to join hands and recognised that before the colonial era, there had been no borders separating the San, and thus competition among the groups was a legacy of colonial times.86 However, states are usually not amenable to such solutions if large amounts of money are at stake. Also, one State might be willing to stand up for the rights of the people in question while another might not; in such a situation commercial interests could easily acquire the desired knowledge from the State that is more amenable. It is therefore clear that neither the global bodies nor the states are the appropriate fora to protect traditional knowledge. It is also clear that answers cannot be found by merely mimicking pre-existing, off-theshelf solutions.

Way Out? So far, we have witnessed a tug of war between two alternative property visions: State ownership versus private ownership of these resources under the TRIPS Agreement. The foregoing discussions reveal that the tensions between internationalism, nationalism and localism, between globalism and parochialist ethnocentrism, between universalism and class asymmetry, are very real issues. It also raises fundamental questions about the liberal practice of privileging individual rights over group rights and underscores the need to go beyond atomistic bias in order to protect those for whom communal life is vital.

208 KANNAMMA RAMAN At this juncture, the solution seems to rest in the various initiatives that have been launched to challenge the ongoing process of hyperprivatisation and hyper-propertisation of knowledge. At a conceptual level, the arguments advanced by Michael Heller and Rebecca Eisenberg,87 and by Carol Rose,88 suggest that when too many parties independently possess the right to exclude others, under-utilisation of resources ensue, causing a tragedy of the anti-commons. It has been suggested that the historical record can teach us some valuable lessons about how community property ownership can succeed. Various individuals and organisations have been trying to establish their own ‘knowledge commons’ to manage and share the information they collectively produce. Through their writing, pro bono litigation, amicus briefs, lobbying and the formation of the Digital Future Coalition, academics in alliance with other groups such as librarians, have fought the expansionist agendas of corporate intellectual property owners.89 A significant development is the conscious effort being made by some information technology professionals to move away from the ‘embrace, extend, extinguish’90 philosophy of market players. This includes, for instance, the free software movement,91 open-source programmes.92 Some of these licencing tools allow users to structure permissions and conditions that create incentives for communication and yet at the same time respect the restrictions placed on data by the originating authors or communities. For example, some moviemakers, musicians, and authors do not mind if their fans make non-commercial copies of their works to post on the Internet or to share with friends as long as they properly attribute the works to their respective creators and do not profit from them. In other words, these tools facilitate a shift from the ‘all-or-nothing’ framework to a ‘some rights reserved’ set-up that enables people to voluntarily negotiate and set flexible terms and conditions for communication.93 Those seeking to protect traditional knowledge can build on these models. However, this can succeed only if we are able to overcome the Manichean framework within which the debate has been conducted. Here, we may be able to use the ideas of ‘incompletely theorized agreements’ (associated with Cass Sunstein)94 or ‘overlapping consensus’ (associated with John Rawls) to break the impasse.95 This may not however be easy, since it will involve confronting diverse and contradictory worldview. Hence there is a need for deliberations that are fair, inclusive and open and where those who join in reflective discussions are neither intimidated nor manipulated. This in turn will facilitate an ethical political theory framework for researching intercultural issues.

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Notes 1. Alfred Cobban, ‘The Decline of Political Theory’, Political Science Quarterly, Vol. 68, No. 3 (September 1953), pp. 321–37. 2. Benjamin R. Barber, ‘The Politics of Political Science: “Value-free” Theory and the Wolin-Strauss Dust-Up of 1963’, American Political Science Review, Vol. 100, No. 4 (November 2006), p. 539. 3. ‘Enclosure’ is a technical term in English law, and it arose from the fact that the privatisation of common lands was often accomplished physically by the new owner surrounding the land with hedges or fences and often employing armed guards to prevent the commoners from continuing to use the land that had previously been theirs collectively. 4. James Boyle, ‘Fencing Off Ideas, Enclosure and the Disappearance of the Public Domain’, Law and Contemporary Problems, Vol. 66, Nos 1 and 2 (Winter/Spring 2003), pp. 38–39. Available online at http://www.law.duke.edu/shell/cite.pl?66+La w+&+Contemp.+Probs.+33+(WinterSpring+2003 (last date of access: 6 June 2007). 5. Article 8 (j) of The Convention on Biological Diversity. Available online at http:// www.cbd.int/traditional/ (last date of access: 30 January 2011). 6. Graham Dutfield, ‘Protecting Traditional Knowledge: Pathways to the Future’, Issue Paper No. 16, International Centre for Trade and Sustainable Development, Geneva, 2006. Available online at http://www.iprsonline.org/unctadictsd/docs/ Graham%20final.pdf (last date of access: 30 May 2007). 7. Marcelo M. Suárez-Orozco and Desirée Baolian Qin-Hilliard, ‘Globalization Culture and Education in the New Millennium’, in Marcelo M. Suárez-Orozco and Desirée Baolian Qin-Hilliard (eds), Globalization Culture and Education in the New Millennium (Berkeley and Los Angeles: University of California Press, 2004). Available online at http://www.ucpress.edu/books/pages/10166/10166.ch01.html (last date of access: 3 June 2007). 8. Jacques Derrida, ‘Autoimmunity: Real and Symbolic Suicides’, in Giovanna Borradori (ed.), Philosophy in a Time of Terror (Chicago: Chicago University Press, 2003), pp. 121–24. 9. Martin Heidegger, ‘The Thing’, in Poetry, Language, Thought (New York: Harper & Row, 1971), p. 165. 10. Martin Jacques, ‘We Are Globalised, But Have No Real Intimacy With the Rest of the World’, The Guardian, 17 April 2006. Available online at http://www.guardian. co.uk/comment/story/0,,1755110,00.html. (last date of access: 18 January 2007). 11. Heidegger, Poetry, Language, Thought, p. 166. 12. Jacques, ‘We Are Globalised, But Have No Real Intimacy with the Rest of the World’. 13. Eric C. Kansa, Jason Schultz and Ahrash N. Bissell, ‘Protecting Traditional Knowledge and Expanding Access to Scientific Data: Juxtaposing Intellectual Property Agendas via a “Some Rights Reserved” Model’, International Journal of Cultural Property, Vol. 12, No. 3 (August 2005), pp. 288–314. 14. Karl Marx, The Poverty of Philosophy (Peking: Foreign Language Press, 1977), p. 28. Available online at http://www.marx2mao.com/M&E/PP47.html (last date of access: 18 May 2007). 15. Editors, ‘Rethinking Globalization’. Available online at http://www.rethinkingschools. org/publication/rg/RGLang.shtml (last date of access: 7 January 2011).

210 KANNAMMA RAMAN 16. The term West is used to refer to the ideal type that is presented as a model to Third World societies. 17. Stephen A. Marglin, ‘Towards the Decolonisation of the Mind’, in Frédérique Apffel Marglin and Stephen A. Marglin (eds), Dominating Knowledge Development, Culture, and Resistance (Oxford: Clarendon Press, 1990), p. 25. 18. As cited by Peter Roberts, ‘Rereading Lyotard: Knowledge, Commodification and Higher Education’, Electronic Journal of Sociology, Vol. 3, No. 3 (April 1998). Available online at http://www.sociology.org/content/vol003.003/roberts.html. (last date of access: 2 May 2007). 19. Marglin, ‘Towards the Decolonisation of the Mind’, p. 25. 20. Frédérique Apffel Marglin, ‘Smallpox in Two Systems of Knowledge’, in Marglin and Marglin, Dominating Knowledge Development, Culture, and Resistance, pp. 102–40. 21. Thomas B. Macauley, ‘Minute on Indian Education’, 2 February 1835. Available online at http://www.geocities.com/bororissa/mac.html (last date of access: 27 May 2007). 22. For more details see Frantz Fanon, Black Skins, White Masks (new edition) (London: Pluto Press, 1991). 23. Stephen A. Marglin, ‘Losing Touch: The Cultural Conditions of Workers’ Accommodation and Resistance’, in Marglin and Marglin, Dominating Knowledge Development, p. 235. 24. M. Auer, ‘Access to Genetic Resources and Benefit Sharing’, in W. Barthlott and M. Winiger (eds), Biodiversity: A Challenge for Development Research and Policy (Berlin: Springer-Verlag, 1998), pp. 199–207. 25. Paul Richards, ‘Culture and Community Values in the Selection and Maintenance of African Rice’, in Stephen B. Brush and Doreen Stabinsky (eds), Valuing Local Knowledge: Indigenous People and Intellectual Property Rights (Washington DC: Island, 1996), p. 218. 26. Michael A. Gollin, ‘Biopiracy: The Legal Perspective’, Nature Biotechnology, Vol. 17, No. 9 (September 1999). Article updated on February 2001, by the author for the web site http://www.actionbioscience.org/biodiversity/gollin.html (last date of access: 2 March 2007). 27. Ajeet Mathur, ‘Who Owns Traditional Knowledge’. Available online at http://www.iimahd. ernet.in/download.php?downloadid=346 (last date of access: 8 January 2007). 28. Olufunmilayo B. Arewa, ‘TRIPS and Traditional Knowledge: Local Communities, Local Knowledge, and Global Intellectual Property Frameworks’, Vol. 10, No. 2, Special Issue (2006), pp. 170–79. Available online at http://law.marquette.edu/ip/ Arewa.pdf (last date of access: 3 June 2007). 29. Andrew Kimbrell, ‘Replace Biopiracy with Biodemocracy’. Available online at http:// www.ratical.org/co-globalize/ReplaceBPwBD.html (last date of access: 3 February 2007). 30. Sheila Slaughter and Larry L. Leslie, Academic Capitalism: Politics, Policies and the Entrepreneurial University (Baltimore: Johns Hopkins University Press, 1999). 31. It is now known as Group on Erosion, Technology and Concentration or ETC. For details see the website http://www.etcgroup.org/en/ 32. As cited by Vandana Shiva, ‘The Turmeric Patent is Just the First Step in Stopping Biopiracy’. Available online at http://www.twnside.org.sg/title/tur-cn.htm (last date of access: 1 June 2007). 33. Coenraad J. Visser, ‘Making Intellectual Property Law Work for Traditional Knowledge’, in J. Michael Finger and Philip Schuler (eds), Poor People’s Knowledge:

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34. 35.

36.

37.

38.

39. 40.

41.

42. 43.

44. 45. 46.

47.

48.

49.

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Promoting Intellectual Property in Developing Countries (Washington, DC: The International Bank for Reconstruction and Development/The World Bank, 2004), p. 213. Hari Har Coyle quoted in Seth Shulman, Owning the Future (New York: Houghton Mifflin, 1999), p. 144. GRAIN and Kalpavriksh, ‘Traditional Knowledge of Biodiversity in Asia-Pacific Problems of Piracy and Protection’ (October 2002). Available online at http://www. grain.org/briefings-files/tk-asia-2002-en.pdf (last date of access: 31 January 2011). Marcia Ellen DeGeer, ‘Biopiracy: The Appropriation of Indigenous Peoples’ Cultural Knowledge’, New England Journal of International and Comparative Law, Vol. 9, No. 1 (2002), pp. 200–01. N.S. Gopalakrishnan, ‘TRIPs and Protection of Traditional Knowledge of Genetic Resources: New Challenges to the Patent System’, European Intellectual Property Review, Vol. 27, No. 1 (January 2005), pp. 11–18. Darshan Shankar, and Padma Venkatasubramanian, ‘The Evolution of Global Standards for Traditional Medicine’, Science and Development Network, March 2005. Available online at http://www.scidev.net/dossiers/index.cfm?fuseaction=printarticle&dossier= 7&policy=58 (last date of access: 30 May 2007). Stephen Gudeman, ‘Sketches, Qualms, and Other Thoughts on Intellectual Property Rights’, in Brush and Stabinsky, Valuing Local Knowledge, p. 105. John Mugabe, ‘Intellectual Property Protection and Traditional Knowledge: An Exploration in International Policy Discourse’. Available online at http://www.wipo.int/ tk/en/hr/paneldiscussion/papers/pdf/mugabe.pdf (last date of access: 30 January 2011). Arjun Appadurai, ‘Technology and the Reproduction of Values in Rural Western India’, in Frédérique Apffel Marglin and Stephen A. Marglin, Dominating Knowledge Development, pp. 183–214. Stephen Gudeman, in Brush and Stabinsky, Valuing Local Knowledge, pp. 102–03. James Boyle, ‘Fencing Off Ideas, Enclosure and the Disappearance of the Public Domain’; Information Technology Advisory Group, ‘The Knowledge Economy’, A submission to the New Zealand Government by the Minister for Information Technology’s IT Advisory Group in August 1999. Available online at http://www. med.govt.nz/upload/31197/knowledge-economy.pdf (last date of access: 30 January 2011). As cited in Stephen B. Brush, ‘Is Common Heritage Outmoded?’ in Brush and Stabinsky, Valuing Local Knowledge, p. 151. Ibid. Gary Paul Nabhan, Angelo Joaquin, Nancy Laney and Dahl Kevin, ‘Sharing the Benefits of Plant Resources and Indigenous Scientific Knowledge’, in Brush and Stabinsky, Valuing Local Knowledge, p. 193. Risa Lieberwitz, ‘Book Review: The Marketing of Higher Education: The Price of the University’s Soul: Universities in the Marketplace: The Commercialization of Higher Education By Derek Bok’, Cornell Law Review, Vol. 89, No. 3 (March 2004), p. 782. Peter Drahos, ‘The Universality of Intellectual Property Rights: Origins and Development’. Available online at http://www.wipo.int/tk/en/hr/paneldiscussion/papers/pdf/ drahos.pdf (last date of access: 3 June 2007). Vandana Shiva, Biopiracy: The Plunder of Nature and Knowledge (Boston: South End Press, 1997), pp. 1–3; Darrell Posey, ‘Upsetting the Sacred Balance: Can the Study of

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50.

51. 52.

53.

54.

55.

56.

57. 58. 59.

60. 61. 62. 63.

64. 65.

Indigenous Knowledge Reflect Cosmic Connectedness?’ in Paul Sillitoe, Alan Bicker and Johan Pottier (eds), Participating in Development: Approaches to Indigenous Knowledge (London and New York: Routledge, 2002), pp. 24–42. Rebecca M. Bratspies, ‘The New Discovery Doctrine: Some Thoughts on Property Rights and Traditional Knowledge’, American Indian Law Review, Vol. 31, No. 2 (2007), p. 21. Available online at http://ssrn.com/abstract=987042 (last date of access: 6 June 2007). A phase originally used by C.B. Macpherson. For more details, see C.B. Macpherson, The Political Theory of Possessive Individualism (Oxford: Clarendon Press, 1962). Daniel J. Gervais, ‘Traditional Knowledge: A Challenge to the International Intellectual Property System’. Available online at http://www.cra-adc.ca/en/documents/traditionalknowledge (last date of access: 2 June 2007). Rosemary Coombe, ‘The Properties of Culture and the Politics of Possessing Identity: Native Claims in the Cultural Appropriation Controversy’, in Dan Danielsen and Karen Engle (eds), After Identity: A Reader in Law and Culture (New York: Routledge, 1995), p. 264. Rosemary Coombe, ‘Culture: Anthropology’s Old Vice or International Law’s New Virtue?’ paper included in Proceedings of the American Society for International Law Annual Meetings, 1999. Available online at http://culturalpolicy.uchicago. edu/workshop/coombe.html (last date of access: 30 May 2007). Michael Sandel, ‘What Money Can’t Buy: The Moral Limits of Markets’, Tanner Lectures on Human Values, Brasenose College, Oxford, 11 and 12 May 1998. Available online at http://www.tannerlectures.utah.edu/lectures/sandel00.pdf (last date of access: 7 March 2007). Glenn I. Cohen, ‘The Price of Everything, the Value of Nothing: Reframing the Commodification Debate’, Harvard Law Review, Vol. 117, No. 689 (2003), p. 690. Available online at http://ssrn.com/abstract=479321 (last date of access: 6 March 2007). Sandel, ‘What Money Can’t Buy: The Moral Limits of Markets’, p. 94. For more details see Susan K. Sell, Private Power, Public Law The Globalization of Intellectual Property Rights (Cambridge: Cambridge University Press, 2003). Rosemary J. Coombe, ‘Intellectual Property, Human Rights and Sovereignty: New Dilemmas in International Law Posed by the Recognition of Indigenous Knowledge and the Conservation of Biodiversity’, Indiana Journal of Global Legal Studies, Vol. 6, No. 1 (Fall 1998), pp. 59–116. Available online at http://www.yorku.ca/ rwombe/publications/Intellectual_Property_Human_Rights_and_Soverei.PDF (last date of access: 31 January 2011). Sandel, ‘What Money Can’t Buy: The Moral Limits of Markets’, p. 104. M. Walzer, Spheres of Justice (Oxford: Basil Blackwell, 1983), p. 8. Stephen B. Brush, ‘Is Common Heritage Outmoded?’ in Brush and Stabinsky, Valuing Local Knowledge, pp. 144–45. Chidi Oguamanam, ‘Localizing Intellectual Property in the Globalization Epoch: The Integration of Indigenous Knowledge’, Indiana Journal of Global Legal Studies, Vol. 11, No. 2 (Summer 2004), pp. 142–44. Peter Drahos, ‘Indigenous Knowledge and the Duties of Intellectual Property Owners’, Intellectual Property Journal, Vol. 11, No. 2 (August 1997), pp. 179–201. Audrey R. Chapman, ‘Approaching Intellectual Property as a Human Right: Obligations Related to Article 15 (1) (c)’, Copyright Bulletin, Vol. XXXV, No. 3 (July–September 2001), p. 10.

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66. Audrey R. Chapman, ‘The Human Rights Implications of Intellectual Property Protection’, Journal of International Economic Law, Vol. 5, No. 4 (December 2002), p. 867. 67. See Ian Shapiro and Will Kymlicka (eds), Ethnicity and Group Rights (New York: New York University Press, 2000); Neil MacCormick, Legal Rights and Social Democracy: Essays in Legal and Political Philosophy (Oxford: Oxford University Press, 1984). 68. Jack Donnelly, Universal Human Rights in Theory and Practice (New York: Cornell University Press, 1989), p. 144. 69. Miodrag A. Jovanovic, ‘Recognizing Minority Identities through Collective Rights’, Human Rights Quarterly, Vol. 27, No. 2 (May 2005), pp. 625–651. 70. R.L. Barsh as cited by Graham Dutfield, Protecting Traditional Knowledge and Folklore: A Review of Progress in Diplomacy and Policy Formulation, International Centre for Trade and Sustainable Development and United Nations Conference on Trade and Development, Geneva, 2003, p. 24. Available online at http://www.iprsonline. org/resources/docs/Dutfield%20-%20Blue%201.pdf (last date of access: 30 January 2011). 71. Shashi Tharoor, ‘Are Human Rights Universal?’ World Policy Journal, Vol. XVI, No. 4 (Winter 1999/2000). Available online at http://www.worldpolicy.org/journal/ tharoor.html (last date of access: on 2 June 2007). 72. As cited in Ibid. 73. For more details see Balakrishnan Rajagopal, International Law from Below: Development, Social Movements, and Third World Resistance (Cambridge: Cambridge University Press, 2003), pp. 163–232. 74. Balakrishnan Rajagopal, ‘Counter-hegemonic International Law: Rethinking Human Rights and Development as a Third World Strategy’, Third World Quarterly, Vol. 27, No. 5 (July 2006), pp 767–83. 75. Joseph Stiglitz, ‘Towards a New Paradigm for Development: Strategies, Policies, Processes’, 9th Raúl Prebisch Lecture delivered at the Palais des Nations, UNCTAD Geneva, 19 October 1998, p. 5. Available online at http://siteresources.worldbank. org/NEWS/Resources/prebisch98.pdf (last date of access: 30 January 2011). 76. Audrey R. Chapman, ‘Human Rights Implications of Indigenous Peoples: Intellectual Property Rights’, in Tom Greaves (ed.), Intellectual Property Rights for Indigenous Peoples: A Sourcebook (Oklahoma City: Society for Applied Anthropology, 1994), p. 216. 77. Rosemary J. Coombe, ‘Fear, Hope, and Longing for the Future of Authorship and a Revitalized Public Domain in Global Regimes of Intellectual Property’, DePaul Law Review, Vol. 52, No. 4 (Summer 2003), pp. 1171–91. Also see, Rosemary J. Coombe, Steven Schnoor and Mohsen Al Attar Ahmed, ‘Bearing Cultural Distinction: Intellectual Property and New Expectations for Intellectual Property’, in W. Grosheide and Jan J. Brinkhof (eds), Intellectual Property Law: Articles on Crossing Borders between Traditional and Actual (Antwerpen and Oxford: Molengrafica/Intersentia, 2005), pp. 193–213. 78. Gary Dean, ‘Globalisation and the Nation-state’, October 1998. Available online at http://www.okusi.net/garydean/works/Globalisation.html#fnB3 (last date of access: 5 May 2007). 79. Rebecca M. Bratspies, ‘The New Discovery Doctrine: Some Thoughts on Property Rights and Traditional Knowledge’, p. 16.

214 KANNAMMA RAMAN 80. Commission on Intellectual Property Rights, Integrating Intellectual Property Rights and Development Policy (London: Commission on Intellectual Property Rights, 2002), p. 89. 81. Uzma Jamil, ‘Biopiracy: The Patenting of Basmati by RiceTec’, 8 October 1998. Available online at http://www.iucn.org/themes/ceesp/Publications/art-mono/basmati. doc (last date of access: 4 June 2007). 82. Sabrina Safrin, ‘Hyperownership in a Time of Biotechnological Promise: The International Conflict to Control the Building Blocks of Life’, American Journal of International Law, Vol. 98, No. 4 (October 2004), p. 660. 83. GRAIN and Kalpavriksh, ‘Traditional Knowledge of Biodiversity in Asia-Pacific Problems of Piracy and Protection’, pp. 7–9. 84. Michael Brown, Who Owns Native Culture? (Cambridge: Harvard University Press, 2003), p. 228. 85. Catherine A. Odora Hoppers, ‘Constructing a Conceptual Framework for HBUs in a Development Paradigm’, in Mokubung Nkomo, Derrick Swartz and Botshelabo Maja (eds), Within the Realm of Possibility (Cape Town: HSRC Press, 2006), p. 58. For more details, see http://www.hsrcpress.ac.za (last date of access: 2 June 2007). 86. Debra Harry and Le`a Malia Kanehe, ‘The BS in Access and Benefit Sharing (ABS): Critical Questions for Indigenous Peoples’, in Beth Burrows (ed.), The Catch: Perspectives in Benefit Sharing (Edmonds, Washington, DC: The Edmonds Institute, 2005), pp. 97–100, 114. 87. Michael A. Heller, ‘The Tragedy of the Anticommons: Property in the Transition from Marx to Markets’, Harvard Law Review, Vol. 111, No. 3 (January 1998), pp. 621–88; Michael A. Heller and Rebecca S. Eisenberg, ‘Can Patents Deter Innovation? The Anticommons in Biomedical Research’, Science, Vol. 280, No. 5364 (1 May 1998), pp. 698–701. 88. Carol Rose, ‘The Comedy of the Commons: Custom, Commerce, and Inherently Public Property’, The University of Chicago Law Review, Vol. 53, No. 3 (Summer 1986), pp. 711–81. 89. Peter Drahos, ‘Developing Countries and International Intellectual Property Standardsetting’, Study Paper 8. This report was commissioned by the Commission on Intellectual Property Rights as a background paper. Available online at http://www. iprcommission.org/papers/word/study_papers/sp8_drahos_study.doc. (last date of access: 30 May 2007). 90. The phrase was originally used during an investigation conducted by the US Department of Justice, focusing on the Microsoft Corporation. It described the company’s policy of adopting free and publicly accessible programmes, modifying them in order to copyright a new version and then making only the copyrighted version compatible with its other products, such as Windows. David Bollier, Public Assets, Private Profits: Reclaiming the American Commons in an Age of Market Enclosure (Washington, DC: New America Foundation, 2001). 91. The philosophy of the movement is to give freedom to computer users by replacing proprietary software under restrictive licencing terms with free software, with the ultimate goal of liberating everyone in cyberspace. 92. Open source allows users to create See user-generated software content through incremental individual effort or through collaboration.

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93. Kansa, Schultz and Bissell, ‘Protecting Traditional Knowledge and Expanding Access to Scientific Data: Juxtaposing Intellectual Property Agendas via a “Some Rights Reserved ‘Model’” pp. 288–314. 94. According to Sunstein: Participants in legal controversies…need not agree on fundamental principle… When they disagree on an abstraction, they move to a level of greater particularity. The distinctive feature of this account is that it emphasizes agreement on (relative) particulars rather than on (relative) abstractions. See Cass R. Sunstein, ‘Incompletely Theorized Agreements’, Harvard Law Review, Vol. 108, No. 7 (May 1995), pp. 1735–36. 95. John Rawls, Political Liberalism (New York: Columbia University Press, New York 1996).

11 The Camp as Nomos of the Modern: Interrogating the Armed Forces (Special Powers) Act, 1958 Shardool Thakur

Giorgio Agamben (b. 1942) is an internationally reputed figure in Italian philosophy and radical political theory. This chapter examines Agamben’s hypothesis of the camp being the nomos of modernity and inquires its relevance in the Indian context, more specifically, in the North East, with reference to the controversy surrounding the continued implementation of the Armed Forces (Special Powers) Act (AFSPA). My position is that Agamben’s hypothesis is relevant to India and offers us important insights into the political turmoil in the North East. I Undoubtedly, Homo Sacer: Sovereign Power and Bare Life is Agamben’s best-known work, and probably also the most controversial. It is in this book that Agamben develops his analysis of biopolitics, first identified by Michel Foucault as the process by which ‘life, at the beginning of the modern age, comes to be what is at stake in politics’.1 I would like to focus specifically on Section Three of the Agamben’s book titled ‘The Camp as Biopolitical Paradigm of the Modern’. Agamben approaches the issue of concentration camps by emphasising the need to investigate ‘the juridical procedures and deployments of power by which human beings could be so completely deprived of their rights and prerogatives that no act committed against them could appear any longer as a crime’.2 What happened in the camps so exceeded the ordinary

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legal concept of crime that the specific juridico-political structure in which those events took place was often simply omitted from consideration. The crux of Agamben’s argument is that the camp is: …not an anomaly belonging to the past but in some way is the hidden matrix and nomos of the political space in which we are still living, and it is this structure of the camp that we must learn to recognize in all its metamorphoses into the zones d’attentes of our airports and certain outskirts of our cities.3

Further, he argues that the camp is not an entity that is far removed from us in time and space but is ‘now securely lodged within the city’s interior’ and is ‘the new biopolitical nomos of the planet’.4

Totalitarianism, Democracy and Biopolitics Agamben argues that the two thinkers who have reflected most deeply on the political problem of our age, namely, Michel Foucault and Hannah Arendt, came very close to the crux of the problem, but they somehow failed to link up their own insights, thereby indicating the difficulty of this problem. In the last years of his life, Foucault did focus on the study of biopolitics understood as the growing inclusion of man’s natural life in the mechanisms and calculations of power. While he continued to investigate ‘the processes of subjectification’, Foucault failed to bring his insights to bear upon the totalitarian states of the twentieth century, which very clearly were ‘the exemplary place of modern biopolitics’. Agamben acknowledges that Hannah Arendt, in her studies dedicated to the structure of totalitarian states in the post-World War I period, came very close to understanding the link between totalitarian rule and the particular condition of life that is the camp. However, she lacked a biopolitical perspective. Consequently, Arendt failed to see that it was possible for politics to take on a totalitarian dimension—seen most clearly in the Nazi concentration camps—only because contemporary politics had been entirely and radically transformed into biopolitics. Agamben mentions the German philosopher Karl Löwith (1897– 1973) as being the first to define the character of totalitarian states as a ‘politicization of life’, and also the first to note the contiguity between democracy and totalitarianism. This contiguity between mass democracy and totalitarianism was not sudden. This is how Agamben puts it:

218 SHARDOOL THAKUR It is almost as if, starting from a certain point, every political event were double sided: the spaces, the liberties, and the rights won by individuals in their conflicts with central powers always simultaneously prepared a tacit but increasing inscription of individuals’ lives within the state order thus offering a new and more dreadful foundation for the very sovereign power from which they wanted to liberate themselves.5

Agamben further argues that to make sense of the rapidity with which parliamentary democracies were able to turn into totalitarian states and totalitarian states were converted into parliamentary democracies in the twentieth century, one must take into account the crucial fact that in this era biological life and its needs had become politically decisive. By that time politics had already turned into biopolitics, and the only unanswered question was that pertaining to the form of organisation that would be best suited to the task of assuring the care, control and use of bare life. The thin line that divides biopolitics from thanatopolitics, that is, the point at which a decision on life becomes a decision on death, seems to be getting even thinner. In the subsequent chapters, Agamben proceeds to analyse certain events which illustrate and symbolise what he terms ‘an incomprehensible intrusion of biologico-scientific principles into the political order’,6 for example, the elimination of ‘life that is unworthy of being lived’ a la National Socialist eugenics, or the contemporary debate on the normative determination of death criteria. Agamben argues that events acquire their true sense only if they are brought back to the common biopolitical or thanatopolitical context to which they belong. From this perspective, the camp ‘as the pure, absolute and impassable biopolitical space (insofar as it is founded solely on the state of exception)’,7 starts appearing as the hidden paradigm of the political space of modernity. Agamben then goes on to analyse the English Habeas Corpus Act 1679, which he believes is the first recording of bare life as the new political subject. The Act was passed during the reign of King Charles II to define and strengthen the ancient prerogative writ of habeas corpus, whereby persons unlawfully detained can be ordered to be produced before a court of law. This document is no doubt important as it heralds the birth of democracy in the assertion and presentation of the ‘body’: habeas corpus ad subjiciendum, ‘you will have a body to show’.8 More importantly for Agamben, this writ very clearly exposes the ambiguous/polar character of democracy if one considers the fact that: The same legal procedure that was originally intended to assure the presence of the accused at the trial, and therefore, to keep the accused from avoiding the judgment, turns—in its new and definitive form—into grounds for

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the sheriff to detain and exhibit the body of the accused. Corpus is a two faced being, the bearer of subjection to sovereign power and of individual liberties.9

In keeping with this logic, Agamben subsequently explores the link between biopolitics and human rights.

The Camp as the Matrix of the Modern World Agamben’s central hypothesis regarding the phenomenon of the concentration camp is that far from being relegated to the distant past, it is in fact the hidden matrix of the modern world that we live in. To prove this contention, he provides a historical account focusing on the camps created by the Spanish in Cuba to suppress the popular insurrection of the colony and the ones set up by the British for the Boers. One defining feature of camps, which emerges from this account, is that a state of emergency linked to a colonial war is extended to an entire civil population. Thus, it becomes clear that camps are not born out of ordinary law, but out of a state of exception and martial law. According to Agamben, it is necessary to understand the use of Schutzhaft—literally, ‘protective custody’—for deciphering the origin of the state of exception. Schutzhaft is a preventative police measure, which allows individuals to be taken into custody independent of any criminal behaviour, solely to avoid danger to the security of the State. He points out that the origin of Schutzhaft lies in the Prussian Law of 4 June 1851, on the state of emergency, which was extended to all of Germany (with the exception of Bavaria) in 1871. Agamben draws our attention to the important fact that the first concentration camps in Germany were not the work of the Nazi regime, but were created by the Social-Democratic Government in 1923 to intern thousands of communist militants on the basis of Schutzhaft. The juridical foundation of Schutzhaft was the proclamation of the state of exception which was accompanied by the suspension of the articles of the German Constitution that guaranteed personal liberties. Thus, Article 48 of the Weimar Constitution empowered the president of the Reich to provisionally suspend the citizens’ fundamental rights in case of ‘a grave disturbance or threat to public security and order’. However, from 1919 to 1924, the Weimar governments declared the state of exception on more

220 SHARDOOL THAKUR than 250 occasions for a wide variety of reasons like the fall of the mark, and to imprison communists, thereby ‘confirming the modern tendency to conflate politico-military and economic ties’.10 Thus the Nazis were only following an established practice when they proclaimed the ‘decree for the protection of the people and the State’ on 28 February 1933, which indefinitely suspended the articles of the Constitution guaranteeing personal liberties of citizens. What marks this particular suspension of civil liberties is the novelty of its execution. In a clever and possibly well-thought move, the decree avoids mentioning the expression Ausnahmezustand—‘state of exception’—and as the first paragraph puts it very directly, the articles of the Constitution guaranteeing personal liberties of citizens were ‘suspended until further notice’.11 As a result, the decree remained de facto in place till the end of the Third Reich. The implications of the decree were undoubtedly far reaching. First, the state of exception ceased to be referred to as an external and provisional state of factual danger, but came to be confused with juridical rule itself. Second, Schutzhaft, which till that point of time, was meant to be an instrument to be used only in a state of exception, was left in force in the normal situation. Consequently, the state of exception became the rule and the space that opened up was the camp. In the camp, the state of exception, which was essentially a temporary suspension of the Rule of Law on the basis of a factual state of danger, is now given a permanent spatial arrangement, which nevertheless remains outside the normal order. This can best be illustrated with the example of the Dachau concentration camp set up by Himmler when Hitler was elected as the Chancellor of the Reich in March 1933. The camp was handed over to the SS and placed outside the rules of penal and prison law. Agamben highlights the paradoxical status of the camp as a space of exception. While the camp is a piece of land placed outside the normal juridical order, it is important to note that it is not simply an external space. Agamben argues that the state of exception inaugurates a new juridico-political paradigm in which the norm becomes indistinguishable from the exception. The camp is thus the structure in which the state of exception is realised normally.

State of Exception as a Paradigm In an interview with Ulrich Raulff, Agamben points out that he is not a historian and that he works with paradigms. Elaborating further he says that

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for him a paradigm is an exemplar. He equates the state of exception, which is a paradigm for him, with the panopticon a la Foucault. He then points out that he used the paradigm to construct a large group of phenomena and in order to understand a historical structure. Thus, for Agamben, the state of exception becomes a paradigm of government, a notion that he explores at considerable length.12 He begins by pointing out that there was still no theory of the state of exception in public law, in spite of Carl Schmitt’s famous definition of the sovereign as ‘he who decides on the state of exception’,13 which has been widely discussed and commented upon. What then is this state of exception? It may be taken to constitute a ‘point of imbalance between public law and political fact’. Agamben is certainly not the first person to provide a history of the state of exception. He examines works like Carl Schmitt’s Politische Theologie and also mentions the works of eminent jurists like Carl J. Friedrich’s Constitutional Government and Democracy, Frederick M. Watkins’s ‘The Problem of Constitutional Dictatorship’, Clinton L. Rosssiter’s Constitutional Dictatorship: Crisis Government in the Modern Democracies and Herbert Tingsten’s Les pleins pouvoirs. L’expansion des pouvoirs gourvernementaux pendant et après la Grande Guerre.14 He points out that these works are important because they record, for the first time, how the democratic regimes were transformed by the gradual expansion of the powers of the executive during the two World Wars, and also by the state of exception that had accompanied and followed those wars. Tingsten seeks to examine the situation that arose in a series of countries like France, Switzerland, Belgium, England, the US, Italy, Austria and Germany from the systematic expansion of executive powers during World War I, when a state of siege was declared, or full powers laws were issued in the warring states. Agamben points out that though this book does not go beyond recording a large number of histories, nevertheless in the conclusion, the author seems to realise and acknowledge one important point, that is, though a temporary and controlled use of full powers is theoretically compatible with democratic constitutions, a systematic and regular exercise of the institution results in the ‘liquidation’ of democracy.15 It is as if World War I and the years following it were ‘a laboratory for testing and honing the functional mechanisms and apparatuses of the state of exception as a paradigm of government’.16 Further, he points out that one of the essential characteristics of the state of exception—the provisional abolition of the distinction among legislative, judicial and executive powers—shows the tendency to become a lasting practice of government. Consequently, the legislative powers of parliament are

222 SHARDOOL THAKUR considerably eroded and its role gets reduced to one of ratifying decrees issued by the executive. Friedrich uses two terms, namely, ‘constitutional dictatorship’, that seeks to safeguard the constitutional order, and second, ‘unconstitutional dictatorship’, that seeks to overthrow it, which seem to have been drawn from Carl Schmitt’s distinction between commisarial and sovereign dictatorships. However, ‘the fundamental aporia’17 of the book, as Agamben puts it, is the impossibility of defining and overcoming the forces that determine the transition from the first to the second form of dictatorship (which is what happened in Germany). Agamben’s examination of how the state of exception is situated in the legal traditions of the Western states, reveals that there are two kinds of order which regulate the state of exception; France and Germany belong to the first type of countries which regulate the state of exception in the text of the constitution or by a law, while Switzerland, England and Italy belong to the second group of countries that prefer not to regulate the problem explicitly. Similarly, Agamben points out that scholarship is also divided between writers who favour a constitutional or legislative provision for the state of exception, and others like Schmitt who criticise the pretence of regulating by law what by definition cannot be put in norms. The problem of the state of exception provides clear analogies to a problem which is closely linked to and often emerges as a response to a state of exception, that is, the question of resistance. When the current Italian Constitution sought to include an article proposed by Giuseppe Dossetti, a prestigious Catholic figure, which would make resistance to oppression a right and duty of the citizen, it met with stiff opposition and had to be dropped. However, Article 20 of the German Constitution unequivocally legalises the right of resistance ‘against anyone who attempts to demolish that order (democratic constitution)’,18 and affirms that ‘all Germans have a right of resistance if no other remedies are possible’. The common link between the state of exception and the right to resistance is that the core of both the issues is the question of the juridical significance of a sphere of action that is in itself extra-juridical. Agamben points out that there is a considerable difference of opinion among legal scholars on whether the state of exception should be considered within the sphere of juridical order or as an extra-juridical phenomenon. On the one hand, there are scholars like Santi Romano, Haauriou and Mortati, who consider the state of exception to be an integral part of positive law because the necessity that grounds it acts as an autonomous source of law. On the other hand, there are scholars like Biscaretti, BalldorPallieri and Carre de Malberg, who consider the state of exception and

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the necessity that grounds it to be extra-juridical, de facto elements, even though they may have consequences in the sphere of law. However Agamben argues that these theorists try to explain the state of exception in terms of a simple topographical opposition (inside/outside), which is insufficient to explain the phenomenon. He poses a pertinent question: if a characteristic property of the state of exception is a total or partial suspension of the juridical order, how can such a suspension still be contained within it? Agamben’s answer to this question is that, in truth, the state of exception is neither external nor internal to the juridical order, and the problem of defining it concerns precisely a threshold, or zone of indifference, where inside and outside are not mutually exclusive but blur into each other. Agamben equates the Nazi State with modern totalitarian states. No sooner did Hitler take power, than he proclaimed the state of exception, which was accompanied by the suspension of the articles of the German Constitution that guaranteed personal liberties. Since the decree was never repealed, Agamben argues that from a juridical standpoint, the entire Third Reich can be considered as a state of exception which lasted 12 years. In the same sense, Agamben further argues that modern totalitarianism can be defined as ‘the establishment, by means of the state of exception, of a legal civil war that allows for the physical elimination not only of political adversaries but of entire categories of citizens who for some reason cannot be integrated into the political system’.19 Agamben then posits his disturbing but well-argued hypothesis, that in the context of what he calls ‘a global civil war’, the state of exception tends increasingly to appear as the ‘dominant paradigm of government in contemporary politics’.20 Highlighting the contemporary transformation of what was originally meant to be a provisional measure into a technique of government, Agamben argues that this has altered ‘the structure and meaning of the traditional distinction between constitutional forms’.21 If one sees things from this perspective, one cannot but accept the argument that the state of exception appears as a threshold of indeterminacy between democracy and absolutism.

Contemporary Relevance of the State of Exception While affirming the contemporary relevance of this conception of the state of exception, Agamben cites the ‘military order’22 issued by the

224 SHARDOOL THAKUR President of the United States on 13 November 2001, which authorised the ‘indefinite detention’ and trial by ‘military commissions’ of non-citizens suspected of involvement in terrorist activities. The existing USA Patriot Act, passed by the US Senate already allowed the Attorney General to ‘take into custody any alien suspected of activities that endangered the national security of the United States’, but had some modicum of safeguards built into it in the form of a clause that specified a time frame of seven days within which the alien had to be either released or charged with violation of immigration laws or some other criminal offence. What then is so special or unique about this order? Almost akin to the 1933 Nazi decree, this order radically erases the legal status of any person so arrested, thus producing ‘a legally unnamable and unclassifiable being’.23 As a consequence, Agamben points out that not only do the Taliban captured in Afghanistan not enjoy the status of Prisoners of War (POW), as defined by the Geneva Convention, they do not even have the status of persons charged with a crime according to American laws. They are neither prisoners nor accused persons, but simply ‘detainees’, thus making them the object of a pure de facto rule of a detention that is ‘indefinite not only in the temporal sense but in its very nature as well, since it is entirely removed from the law and from judicial oversight’.24 By stripping the detainees of their politico-legal status, they are reduced to their purely physical existence. Then in a forthright assertion which is bound to shock many people, Agamben boldly and accurately points out that the status of these ‘detainees’ can be compared only to the legal situation of the Jews in the Nazi concentration camps. The most apt contemporary example of the state of exception that Agamben gives is that of Guantanamo Bay. In the interview with Ulrich Raulff mentioned earlier, Agamben points out that it is no longer possible to distinguish between what is private and what is public, and that both sides of the classical opposition appear to be losing their reality. He further states that the detention camp at Guantanamo is the ‘locus par excellence of this impossibilty’.25 This also corresponds to and is consistent with Agamben’s position in State of Exception, wherein he writes, ‘The state of exception is not a dictatorship but a space devoid of law, a zone of anomie in which all legal determinations—and above all the very distinction between public and private are deactivated.’26 Further, he argues that the crucial problem connected to the suspension of the law is that of the acts committed during the Iustitium—an institution of Roman law that can be considered as the archetype of the modern state of exception—in that the nature of these acts seems to escape all legal definition. As they are neither transgressive, executive, nor legislative, they seem to be situated in an

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absolute non-place with respect to the law. This more or less explains the predicament faced by the detainees of Guantanamo Bay. The history of Guantanamo Bay also has a unique role to play in the way it is being used, rather misused very ingeniously, by the US for its own so-called global war against terror. Following its victory in the Spanish–American War in 1902, the US extracted its pound of flesh from Cuba—which possibly was in no state to refuse—in the form of a lease contract that it signed, which gave it the right to use Guantanamo Bay as a naval base. However, after assuming power, Fidel Castro declared the American presence in Guantanamo Bay as illegal; a violation of Cuba’s territorial integrity. He has since refused to accept the payment for the lease agreement. In a very shrewd and ingenious way, the US has turned this to its advantage. In a certain sense, the US functionalised the illegality of the naval base that was asserted by the Cuban side. The lease contract for Guantanamo Bay in fact gives it control over Cuban territory, but allows it to suspend the US law at the same time, since the territory is juridically subject to Cuban sovereignty. The special legal status was first instrumentalised by the United States in the early 1990s, when Haitian and Cuban boat people attempting to reach the US were picked up and brought to Guantanamo. Between 1994–96, 50,000 refugees were held in camps at the military base. Since Guantanamo Bay is not located on American territory, the refugees had no right to apply for asylum in the US and were deported. The suspected Taliban and Al-Qaida members held there are afforded neither the status of POW, nor of civilians. The US circumvents the Geneva Convention and thus international law by defining the prisoners arbitrarily as ‘Unlawful Enemy Combatants’, for whom no constitutional rights are recognised. The prisoners have no right to legal representation nor to a fair trial, and they are held for an unspecified period with no review of remand in custody. One just needs to read the reports of torture in Guantanamo Bay camp or the numerous incidents of torture and arbitrary killing in the North East of India, discussed at length in Section II, to realise that the condition of their victims is comparable to that of Jews in Nazi concentration camps. II In this section, I would like to carry Agamben’s hypothesis forward that the camp is the hidden matrix of the politics in which we are still living, and extend it to the Indian context, keeping in mind the danger that

226 SHARDOOL THAKUR Agamben warns us against when he says that it is the structure of the camp that we must learn to recognise in all its manifestations. When one thinks of an Indian parallel which would resemble the ‘camp’, one is tempted to think of the Emergency imposed by Mrs Indira Gandhi as one glaring example that undoubtedly was one of the saddest phases of Indian democracy, when almost the whole country was converted into a virtual camp. But that was over 30 years ago. In more recent times, Kashmir and the North East of India are notable examples. I would like to focus on the use of instruments like the Armed Forces (Special Powers) Act (AFSPA), and show how using these, the whole of the North East has been converted into a modern day camp. The North East hardly figures in public consciousness as it is far from the national capital, New Delhi, and terrorism in the region—as compared to terrorism in Jammu and Kashmir—lacks a dramatic international dimension. A sad and telling commentary on the state of affairs is that it took two bold actions, one by Irom Sharmila and the other by a group of brave Manipuri women, to bring the predicament of people in the region into national prominence. On 11 July 2004, Thangjam Manorama was found dead a day after she was arrested by the Assam Rifles, a paramilitary force deployed in the State. Angered by the killing, the shocked women of Manipur protested in a manner never seen before in independent India. They stripped outside the gates of the Assam Rifles Headquarters in Imphal, the State capital. These brave Manipuri women shook the conscience of the entire nation.27 On 6 October 2006, many national newspapers showed a photograph of the Manipur Chief Minister Ibobi Singh with Irom Sharmila, who had been on a hunger strike for the previous six years, seeking repeal of the AFSPA.

The Trajectory of the Armed Forces (Special Powers) Act It is pertinent here to ask the question what is the AFSPA? In an article in the Times of India dated 26 February 2007, titled ‘Licensed to Kill: Armed Forces Act is Mother of Black Laws’, Rakesh Shukla, an eminent Supreme Court lawyer refers to the AFSPA as the mother of all black laws. He claims that it is far more draconian than the dreaded POTA (Prevention of Terrorism Act, 2002). Passed by the Indian Parliament in 1958, the AFSPA gives all security forces unrestricted and unaccounted

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power to carry out their operations, once an area is declared disturbed. Even a non-commissioned officer is granted the right to shoot to kill, based on mere suspicion that it is necessary to do so in order to ‘maintain public order’. The AFSPA gives the armed forces wide powers to shoot, arrest and search, all in the name of ‘aiding civil power’. It was first applied to the states of Assam and Manipur and was amended in 1972, so as to bring within its purview all the seven states in the North East India. They are Assam, Manipur, Tripura, Meghalaya, Arunachal Pradesh, Mizoram and Nagaland, also known as the ‘seven sisters’. The enforcement of the AFSPA has resulted in innumerable incidents of arbitrary detention, torture, rape and looting by security personnel. This legislation is sought to be justified by the Government of India on the plea that it is required to pre-empt the fissiparous forces in the North East. Preposterous though it may seem at first sight, a detailed analysis of the provisions of the AFSPA28 offers an insight into how the North East of India has been converted into a veritable camp and proves to be a timely confirmation of Agamben’s hypothesis that the camp is the new biopolitical nomos of the planet. What follows is an in-depth analysis of the AFSPA’s provisions, its historical origin and the story of how a gross misuse of this Act has placed the North East and specifically Manipur in a state of siege. The AFSPA was originally passed by the Parliament in 1958 to enable the armed forces to function effectively in Assam and Manipur which were considered to be ‘disturbed areas’. Section 3 of the Act read as follows: If the Governor of Assam or the Chief Commissioner of Manipur is of the opinion that the whole or any part of the State of Assam or the Union Territory of Manipur, as the case may be, is in such a disturbed or dangerous condition that the use of armed forces in aid of the civil powers in necessary, he may, by notification in the Official Gazette, declare the whole or any part of the State or Union territory to be a disturbed area.

It thus effectively conferred the power to declare an area disturbed on the state government, but did not describe the circumstances under which it would be justified in making such a declaration. Agamben points out that the camp is born out of a state of exception. In this sense, the North East of India has been converted into a virtual camp by using Section 3 of AFSPA. Once an area is declared as a ‘disturbed area’, its homology with the ‘state of exception’ becomes crystal clear. In the Section I, we saw how the provision of the ‘state of exception’ was

228 SHARDOOL THAKUR blatantly misused by successive German governments, which eventually and cumulatively made it possible for the concentration camps to come into existence. It is in fact the vagueness of the definition of a ‘disturbed area’ in Section 3, which makes it possible for the Indian government to declare an area as disturbed almost at will. The vagueness of this definition was challenged in the Indrajit Barua vs. State of Assam case.29 The court decided that the lack of precision in the definition of a disturbed area was not an issue because the government and people of India understand its meaning. Since the declaration that an area is disturbed depends on the satisfaction of government officials, it is not subject to judicial review. So in practice, it is only the government’s understanding which determines the declaration of an area as disturbed. There is no mechanism for the people to challenge this opinion. Strangely, there are Acts which define the term more concretely. In the Disturbed Areas (Special Courts) Act, 1976, an area may be declared disturbed when, …a State Government is satisfied that (i) there was, or (ii) there is, in any area within a State extensive disturbance of the public peace and tranquility, by reason of differences or disputes between members of different religious, racial, language, or regional groups or castes or communities.

The lack of precision in the definition of a disturbed area under the AFSPA demonstrates that the government is not interested in placing restrictions on its application of the Act. The 1972 amendments to the AFSPA extended the power to declare an area disturbed to the central government. In the 1958 version of the AFSPA, only the state governments had this power. In the 1972 Lok Sabha debates, it was argued that extending this power to the central government would take away the states’ authority. In the 1958 debates, the authority and power of the states in applying the AFSPA was a key issue. The Home Minister had argued that the AFSPA broadened the states’ power because they could call in the military whenever they chose. The 1972 amendment shows that the central government was no longer concerned with the power of the states. Rather, it now had the ability to overrule the opinion of a state governor and declare an area disturbed. This happened in Tripura when the central government declared Tripura a disturbed area, despite the opposition of the state government. Section 4 of AFSPA is really the sharp edge of the law, which actually facilitates in the making of the camp possible in the North East. It reads as follows:

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Any commissioned officer, warrant officer, non commissioned officer or any other person of equivalent rank in the Armed Forces may, in a disturbed area, (a) if he is of opinion that it is necessary so to do for the maintenance of public order, after giving such due warning as he may consider necessary, fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of fire-arms, ammunition or explosive substances; (b) if he is of opinion that it is necessary so to do, destroy any arms dump, prepared or fortified position or shelter from which armed attacks are made or are likely to be made or are attempted to be made, or any structure used as a training camp for armed volunteers or utilised as a hide-out by armed gangs or absconders wanted for any offence; (c) arrest, without warrant, any person who has committed a cognisable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognisable offence and may use such force as may be necessary to effect the arrest; (d) enter and search without warrant any premises to make any such arrest as aforesaid or to recover any person believed to be wrongfully restrained or any arms, ammunition or explosive substances believed to be unlawfully kept in such premises and may for that purpose use such force as may be necessary.

Section 5 of AFSPA states that ‘Any person arrested and taken into custody under this Act shall be made over to the officer-in-charge of the nearest police station with the least possible delay, together with a report of the circumstances occasioning the arrest.’ Though the holding of the arrested person without review by a magistrate constitutes arbitrary detention, the Act does not define what constitutes ‘the least possible delay’. The gross misuse of this section has resulted in large-scale incidents of torture, rape, physical assault and illegal detention of innocent civilians by the security forces. Section 6 of the Act states that ‘No prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the central government against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act.’ This is what I would call the shield that protects the security forces from fear of any action or accountability for any of their actions. This section establishes that no legal proceeding can be brought against any member of the armed forces acting under the AFSPA, without the permission of the central government, thus leaving the victims of the armed forces abuses without a remedy.

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The Misuse of the AFSPA Supporters of the AFSPA, most of them from the Armed Forces,30 make an attempt to justify the continuance of the Act on grounds of its necessity to control the volatile situation in the North East, failing which, they argue that states in the region would secede from India. In this connection, it would be worthwhile to recall Agamben’s questioning of the concept of necessity as the foundation of the state of exception. He points out that the concept is invoked to release a case from the obligation to observe the law. However, every attempt to define necessity as an objective situation runs into an aporia because it invariably entails a subjective judgement and is relative to the aim one wants to achieve. Thus, it is pertinent to question Section 4 of the AFSPA, which allows the armed forces personnel to kill a suspected offender, provided the officer be ‘of the opinion that it is necessary to do so for the maintenance of public order’. This section is ambiguous and has effectively sanctioned large-scale abuse in the form of rape, custodial torture and arbitrary killings. What follows is just a sample of the allegations of excesses committed by the security personnel in the North East. Excerpts from the joint statement of 12 Women’s Groups against the AFSPA alleging excesses by the Security Forces.31 The most widely known incidents of such excesses include torture and violence against the villagers of Oinam (Manipur) in 1987, the gang rape of the women of Ujanmaidan (Tripura) in 1988, the terror unleashed in Assam during Operation Rhino in 1991, the shelling of the town of Ukhrul (Manipur) with mortars in May 1994, indiscriminate firing on civilians in the town of Kohima (Nagaland) in March 1995, torture of the villagers of Namtiram (Manipur) in 1995, the reign of terror in Jesami (Manipur) in January 1996, the rampage in the village of Huishu (Manipur) in March 1996, and the torture, rape and killing of Thangjam Manorama alias Henthoi (Manipur) in 2004.

The following is a list of some of the complaints/memorandums alleging torture/ rape/killings by the Armed Forces, submitted to Justice B.P. Jeevan Reddy Committee during its public hearing at Imphal (Manipur), the state which has borne the maximum brunt of the AFSPA.32 1. Smt. Wahengbam Ongbi Kunjarasi Devi w/o W. Udoichandsingh, Torbung Bangla of Churachandpur district, regarding the death of her son Wahengam Brojendra Singh, aged 21 years, at the hands of B.S.F. personnel on 1 September 2001.

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2. N. Pramo Devi, w/o Ningthoujam Basanta Singh narrated the incident of her rape inside her house by Army personnel. 3. Complaint by the Mother of Moriangthem Manibala Devi, regarding shooting of her daughter studying in Class IX by CRPF personnel on 9 June 1998. 4. Representation by Malika Devi, Mother of Thingujam Dhirendra Michael, who was allegedly killed by personnel of 17 Assam Rifles on 5 April 2002. 5. Smt. Laitonjm Ningol Lanjita Devi’s memorandum alleging that her father L. Manlemba Singh and another person Thodam Girami Singh were gunned down by personnel of 8th Assam Rifles on 23 March 2000. 6. Th. Dolendro Singh’s memorandum alleging that his sister was tortured and raped by personnel of Assam Rifles on 10 July 2001 and that she was found dead the next day. A common thread that runs through all these allegations is the complaint that no or inadequate action was taken to address these serious grievances. I would also like to quote the following excerpts from the Amnesty International’s briefing on the AFSPA:33 Amnesty International has received numerous reports of security forces in the states of the North east opening fire arbitrarily during search operations, resulting in the death of innocent men, women and children in clear violation of the right to life. On 4 May 1995, there was a firing in Kohima, Nagaland, where six people were shot dead. The Justice D. M. Sen Commission of Enquiry found that: (B)esides indiscriminate firing and shelling, some of the 16 RR (Rashtriya Rifles) personnel had entered private houses, beaten up the inmates and even killed innocent persons inside their residence. There is evidence beyond any reasonable doubt that Bishnu Sonar of Kohima was shot dead by 16 RR inside his residence in the presence of his wife Mrs. Naya. A number of witnesses had deposed to that effect. This was a cold blooded murder.

In Manipur alone, Amnesty International received sufficient reports of deliberate and arbitrary killing by members of security forces and law enforcement personnel during 1995–96 to conclude that there was official sanction for extra-judicial executions. That this provision of the AFSPA has facilitated actions violating Article 6 of the ICCPR (International Covenant on Civil and Political Rights) is demonstrated by an incident documented by Amnesty International in 1997, known as the shooting

232 SHARDOOL THAKUR at the Regional Medical College (RMC) Hospital, Imphal, Manipur, where the CRPF, a central law enforcement agency, killed nine civilians. A Commission of Inquiry was constituted by the Government of Manipur on 13 January 1995, which found that: (T)here can be no other explanation for the death of nine civilians and injury to another, except that they were fired upon by the CRPF after the militants had already retreated and there was no further need for resorting to any firing by the CRPF.

All these reports in a way serve to validate my hypothesis that Agamben’s theory of the camp being the nomos of the modern is applicable to the North East of India.

Justice B.P. Jeevan Reddy Committee and Its Report It would be worthwhile to take a look at the circumstances that led the government to appoint the Justice B.P. Jeevan Reddy Committee. The abduction and killing of Manorama in 2004 triggered massive protests by the people of Manipur against the AFSPA. A group of brave Manipuri women shook the conscience of the entire country by baring themselves in front of the guns and bayonets of the Army. Prime Minister Manmohan Singh told a delegation of the Apunba Lup—the umbrella organisation spearheading the campaign—in New Delhi in November 2004 that he would consider replacing the AFSPA with ‘a more humane law that will address both the concerns of national security and the rights of citizens’.34 Later that month, Dr Singh went to Imphal and met some of the women who had staged that dramatic protest against the AFSPA outside Kangla Fort. Subsequently, the Prime Minister appointed a high level committee, headed by Justice B.P. Jeevan Reddy with the mandate of ‘review[ing] the provisions of AFSPA…and advis[ing] the Government of India whether (a) to amend the provisions of the Act to bring them in consonance with the obligations of the government towards protection of human rights; or (b) to replace the Act by a more humane Act’.35 Dr Singh said it was his hope and belief that it would be possible ‘to work together with the people of Manipur to write a new chapter in the history of the State’.36 The Committee went about its job in a fair and professional manner. Extensive public hearings were conducted in all North-East states and

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in Delhi. The views of the armed forces and various government departments were also solicited. Though the Jeevan Reddy Committee submitted its recommendations on 6 June 2005, the Indian government did nothing about them for more than a year and a half. It even refused to make the findings of the report public. It was then that a leading newspaper, The Hindu, went ahead and unofficially published the report of the committee online. The 147-page report unambiguously recommends the repeal of the controversial law against which people in Manipur and elsewhere in the North East have been agitating for several years. The report finds that the AFSPA, 1958, ‘is too sketchy, too bald and quite inadequate in several particulars’.37 It therefore recommends that the Act should be repealed. The report adds that the impression formed by the Committee during the course of its work is that ‘the Act, for whatever reason, has become a symbol of oppression, an object of hate and an instrument of discrimination and high-handedness’.38 Acknowledging that the Supreme Court had upheld the constitutional validity of the Act, the Committee said that the judgment ‘is not an endorsement of the desirability or advisability of the Act’.39 The apex court may have endorsed the competence of the legislature to enact the law, but ‘the Court does not—it is not supposed to—pronounce upon the wisdom or the necessity of such an enactment’.40 The Committee unambiguously recommends that ‘It is highly desirable and advisable to repeal the Act altogether, without, of course, losing sight of the overwhelming desire of an overwhelming majority of the [people in the North East] region that the Army should remain (though the Act should go)’.41

Conclusion Despite the criticisms levelled against it, the AFSPA continues to be in force. During a recent conference organised by the National Human Rights Commission in New Delhi, the UN High Commissioner for Human Rights, Navanethem Pillay, said: India should repeal those dated and colonial-era laws that breach contemporary international human rights standards. These range from laws which provide the security forces with excessive emergency powers, including the Armed Forces Special Powers Act, to laws that criminalise homosexuality… such legal vestiges of a bygone era are at odds with the vibrant dynamics and forward thrust of large sectors of the Indian polity. 42

234 SHARDOOL THAKUR Though this seems like a reasonable demand for the ‘modernisation’ of the Indian legal system, the earlier discussion of Agamben’s critique of the camp suggests the disturbing possibility that seemingly ‘dated and colonial era laws’ like the AFSPA might in fact represent the flip side of the much-coveted modern juridico-political order. What modalities of resistance and prospects of emancipation are available to the victims of the regime of bio-power embodied in the polymorphous avatars of the ‘camp’? This is undoubtedly a question of great contemporary significance. While the foregoing discussion may offer useful pointers for grappling with it, a full-scale engagement with the question lies beyond the scope of this chapter.

Notes 1. Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, trans., Daniel HellerRoazen (Stanford: Stanford University Press, 1998) [first published in 1995], p. 119. 2. Ibid.: 171. 3. Ibid.: 175. 4. Ibid.: 176. 5. Ibid.: 121. 6. Ibid.: 122. 7. Ibid.: 123. 8. Ibid.: 124. 9. Ibid.: 125. 10. Giorgio Agamben, State of Exception, trans., Kevin Attell (Chicago: University of Chicago Press, 2005), p. 15. 11. Agamben, Homo Sacer, p. 168. 12. Agamben, State of Exception, pp. 1–31. 13. Ibid.: 1. 14. For details, see Carl Schmitt, Politische Theologie [Political Theology: Four Chapters on the Concept of Sovereignty], trans., George D. Schwab, (Cambridge MA: MIT Press, 1985) [Original publication in 1922]; Carl J. Friedrich, Constitutional Government and Democracy: Theory and Practice in Europe and America (Boston: Ginn and Company, 1950) [First published in 1941]; Frederick M. Watkins, ‘The Problem of Constitutional Dictatorship’, in C.J. Friedrich and Edward S. Mason (eds), Public Policy (Cambridge, MA.: Harvard University Press, 1940), pp. 324–79; Clinton L. Rosssiter, Constitutional Dictatorship: Crisis Government in the Modern Democracies (Princeton: Princeton University Press, 1948); and Herbert Tingsten, Les pleins pouvoirs. L’expansion des pouvoirs gouvernementaux pendant et après la Grande Guerre [Full Powers: The Expansion of Governmental Powers during and after the First World War] (Paris: Librairie Stock, 1934). 15. Tingsten, Les pleins pouvoirs, p. 7. 16. Agamben, Homo Sacer, p. 7.

The Camp as Nomos of the Modern 17. 18. 19. 20. 21. 22. 23. 24. 25.

26. 27. 28. 29. 30.

31. 32.

33. 34.

35. 36. 37.

38. 39. 40. 41. 42.

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Agamben, Homo Sacer, p. 8. Ibid.: 11. Ibid.: 2. Ibid. Ibid. Ibid.: 3. Ibid. Ibid.: 4. Ulrich Raulff, ‘Interview with Giorgio Agamben—Life, a Work of Art without an Author: The State of Exception, the Administration of Disorder and Private Life’, German Law Journal, No. 5 (1 May 2004). Available online at http://www.egs. edu/faculty/giorgio-agamben/articles/life-a-work-of-art-without-an-author/ (last date of access: 23 December 2010). Agamben, State of Exception, p. 50. Available online at http://www.outlookindia.com/article.aspx?224820 (last date of access: 23 December 2010). See Prakash Louis, Extraordinary Laws in India (New Delhi: Indian Social Institute, 2002). Available online at http://www.hrdc.net/sahrdc/resources/armed_forces.htm (last date of access: 23 December 2010). Memoranda given by several army officers to the Justice B.P. Jeevan Reddy Committee during its hearing in various parts of the North East. See, http://www.hindu.com/nic/afa/ (last date of access: 23 December 2010). See Women’s Rights Pages; available online at http://www.sacw.net/Wmov/ JointStatement20012005.html (last date of access: 23 December 2010). Memoranda given to Justice B.P. Jeevan Reddy Committee during its hearing in various parts of the North East given in Annexures 1 to 4. See, http://www.hindu.com/nic/afa (last date of access: 23 December 2010). Amnesty International Report 2005. Available online at http://www.amnesty.org/library (last date of access: 23 December 2010). Siddharth Varadarajan, ‘Does Anybody Care about Manipur’. Available in the online edition of The Hindu, 10 October 2006, http://www.hinduonnet.com/2006/10/10/ stories/2006101002661100.htm (last date of access: 23 December 2010). For more details, see http://www.hinduonnet.com/2006/10/10/stories/200610100 2661100.htm (last date of access: 23 December 2010). Ibid. Report of the Justice B.P. Jeevan Reddy Committee, Section 4: Recommendations, p. 74, unofficially published by The Hindu. Available online at http:// www.hindu.com/ nic/afa/ (last date of access: 23 December 2010). Ibid. Ibid. Ibid. Ibid.: 73. IANS, ‘India Should Repeal Armed Forces’ Special Powers: UN Official’, 23 March 2009, New Delhi. Available at IANS online archives. See, http://www.thaindian. com/newsportal/uncategorized/india-should-repeal-armed-forces-special-powers-unofficial_100170335.html

12 The Crime of Torture Justin Clemens and Russell Grigg

All questioning is a forcible intrusion. When used as an instrument of power it is like a knife cutting into the flesh of the victim. The questioner knows what there is to find, but he wants to touch it and bring it to light. He sets to work on the internal organs with the sureness of a surgeon. But he is a special kind of surgeon, one who keeps his victim alive in order to find out more about him, and, instead of anaesthetizing, deliberately stimulates pain in certain organs in order to find out what he wants to know about the rest of the body. Elias Canetti1 Torture is senseless violence, born in fear. The purpose of torture is not only the extortion of confessions, of betrayal: the victim must disgrace himself, by his screams and his submissions, like a human animal. Jean-Paul Sartre2

Torture and Crime Let us be clear.3 Torture is an international crime under all circumstances. Countries in which torture is sanctioned are considered states that violate human rights, to the extent that they may well be vernacularly denominated ‘criminal states’. Every country has a legal and moral obligation to prevent the use of torture. This includes prosecuting those who have engaged in torture or otherwise supported its practice, discouraging other states from the use of torture, and, if the acts have been committed outside their

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jurisdiction, to extradite the alleged perpetrator to a State that has such jurisdiction. The prohibitions against torture are so foundational that the states which sanction it are sometimes pursued by a range of extra-legal measures, such as military intervention, economic sanctions, ideological or humanitarian exertions. If torture does not in itself provide adequate legal grounds for intervention by such extraordinary means, there is no question that evidence of torture provides one of the strongest possible public supports for such intervention. If torture is an individual criminal offence rather than a State offence, the distinction has proven to be difficult to maintain. Torture is one place where the difference between individual criminal acts and broader political concerns is unavoidably blurred. The reason for this will be examined in this chapter. There is no distinction between sins of omission and sins of commission where torture is concerned; to prevent the circumstances under which torture is carried out is a duty every bit as much as to desist from torture itself. For a long time, even to discuss publicly the possible uses of torture— under any circumstances whatsoever—has been close to unthinkable in Western states. Torture has been understood as archaic, ineffective, antidemocratic, a sign of barbarity and a falling away from the ideals of a civilised society. In the discussions leading up to the Universal Declaration of Human Rights (1948), the strictures dealing with the prohibition of torture were accepted without any dissent. Article 7 of the ICCPR, 1966 (International Covenant on Civil and Political Rights) interdicts torture absolutely, as well as certain other ‘cruel, inhuman or degrading’ practices from which torture is often legally, conceptually and pragmatically distinguished. Unlike almost all other Articles of the Covenant, Article 7 is ‘non-derogable’, that is, there are no circumstances, however extreme, under which its dictates might be circumvented or mitigated.4 If the United Nations (UN) Convention against Torture introduced in 1984 was not ratified by all democratic nations, many of these nations had led the way on promoting the letter and spirit of its articles. Moreover, the prohibition against torture is such that it is considered a norm of customary international law, binding even states that have not ratified the Convention. Human rights abuses, including the use of torture, for example, in countries such as China and Iraq, have frequently been grounds for considering democratic countries as morally superior to non-democratic regimes. Moreover, when democratic states have themselves covertly resorted to torture, this has been publicly considered an assault on democratic values and grounds for pursuing those responsible.

238 JUSTIN CLEMENS AND RUSSELL GRIGG Yet the prohibition against torture now appears not to be absolute. Today virtually all Western states endorse this absolute prohibition, even though—as official images and documents attest—some of them are prepared to entertain situations under which the prohibition is at best relative. The denial of human rights and the failure to seriously investigate allegations of torture in such places as Guantanamo Bay and Abu Ghraib, suggest that torture may now not only be considered acceptable under certain circumstances, but that it would almost be some kind of dereliction of duty not to torture suspects.5 It is clearly not a matter of a ‘few bad apples’, as the Bush Administration claimed of torture allegations.6 The US academic Alan Dershowitz has engaged in high-profile debates about torture, in which he has offered what he believes to be adequate justifications for its limited but official use as a security measure; he has recently been supported in an Australian context not only by other academics, but also by major legal, administrative and political figures.7 We believe that this tendency must be seriously resisted, not primarily on moral, but on psychological and political grounds.

Torture, Democracy and Free Speech There is an unbreakable link between democracy and the prohibition of torture. This link is at once historical, political and philosophical. Historically, the emergence of modern Western democracies in the eighteenth century was bound up with a concerted international struggle against the power of the sovereign to torture his subjects. Emblematic in this regard is a very famous incident from eighteenth century France. Damiens, convicted of the attempted murder of Louis XV (with a small rusted penknife), was publicly torn apart by horses after being mutilated, burned with sulphur and disembowelled.8 In Michel Foucault’s reconstruction of the event, such spectacular torture had the function of exemplifying and legitimating the power of the king. Torture for the Ancien Régime was at once an indispensable epistemological tool, ritual observance, punishment, dissuasion and a show of justice—a sort of (negative) advertising campaign pour encourager les autres.9 Torture was essentially a public device, whether pursued in dungeons of interrogation where professional torturers would ply their trade and clerks would note every unavailing scream, or in the open execution grounds attended by large crowds.

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Damiens’s horrific execution would barely have raised eyebrows even a few decades previously. Stephen Greenblatt memorably writes that Shakespeare’s London, …was a nonstop theater of punishments. Shakespeare had certainly witnessed corporal discipline before he came to London…but the frequency and ferocity of sentences meted out on public scaffolds at Tower Hill, Tyburn, and Smithfield; at Bridewell and the Marshalsea prisons; and at many other sites both within and outside the city walls would have been new. Almost daily he could have watched the state brand, cut, and kill those it deemed offenders.10

Yet only a few years later, in the turbulence that preceded the Civil War, England would ban torture, the first European State to do so. But what the rest of the seventeenth century accepted, even craved and enjoyed, the eighteenth abominated. Many of the greatest political activists and intellectuals of the day weighed in. It is no accident that Voltaire, the century’s most vocal advocate for free speech, also led the most energetic attacks against judicial torture.11 Jeremy Bentham—despite the distortions inflicted on his work by over-enthusiastic commentators—clearly directed his attentions to minimising physical coercion. If one cannot a priori exclude the possibility of torture for utilitarians, Bentham resists the temptation to support the use of physical violence for infractions, and indeed becomes a brilliant designer of institutions that encourage nonviolent responses to criminal acts.12 Despite their brevity, the above remarks can serve to clarify some of the confusions surrounding ‘torture’. Certainly, what ‘torture’ is, its function, regulation and value change over time. For example, the uses of torture have included torture as an ‘information-gathering device’, torture as punishment, torture as a tool of terror, torture as a pedagogical method, torture as a scene of perverse enjoyment for its perpetrators and spectators (indeed, the knowledge that the torture is being recorded, let alone broadcast, can often be part of the torture itself), torture as a kind of ritualised practice, torture as an experiment with the body, and torture as an index of a sense of loss of authority (for example, when you are desperate, you torture as a last resort).13 Only the first of the above points has, so far, proved explicitly admissible as part of the contemporary ‘argument’, even if it has commonly been confounded with the others. Indeed, what was crucial about the eighteenth century critique of despotic power is that it identified, isolated and separated features that had previously been fused in torture’s deployment

240 JUSTIN CLEMENS AND RUSSELL GRIGG by the Ancien Régime or, in England, by the pre-Civil War monarchs. But the eighteenth century theorists also recognised that while it could serve a number of functions, the nature of torture was such that it invariably confused such functions, to the point where it was practically useless as a method for getting at the truth, and positively harmful for the cause of free speech. The Italian theorist Cesare Beccaria’s very influential On Crimes and Punishments and Other Writings of 1764—it struck Thomas Jefferson as strongly as it did Voltaire—notes that a man is either guilty or not guilty of the crime for which he is charged. If guilty, he should suffer the punishments ordained by law, but if he is not guilty, then it is itself a terrible crime to torture the innocent.14 And since it is empirically the case that people have shown themselves capable of resisting torture, those strong or lucky enough to hold out against it may then be acquitted for lack of evidence though they are guilty. Evidence produced by torture is irredeemably unreliable and in itself unjust.15 The public struggle against torture therefore involved the identification of torture’s manifold aspects, as well as showing how these are at odds with the justifications for its use. The Enlightenment writers thereby also demonstrated that an essential part of torture’s harm consists in the pragmatic impossibility of ever thoroughly separating these elements, for instance, is torture a tool of truth or a punishment for an infraction? Is it part of a bureaucratic apparatus or the entertainment of justice; pedagogical principle or vengeful satisfaction? And is it intended to have these consequences just for the individuals directly concerned in an act of torture, or for their communities as well? What the eighteenth century democratic revolutionaries and reformers like Beccaria and Voltaire realised is that the very threat of torture makes it impossible in principle to distinguish interrogation from punishment, speech from being, the individual from the coercive authority. Aside from all its other features, torture invariably confuses these operations—and therefore, too, what people can say about these operations—and consequently this confusing aspect of torture is an integral part of its harm. Torture, by definition mixes up act, knowledge, the victim, the voice, the official and truth in such a way that they thereafter cannot be adequately distinguished.16 As a tool of interrogation, torture is tantamount to a forcing of speech, but it is then no longer clear who is really speaking, the torturer or the victim, and nor is it clear whether what is being said is true. As a punishment, torture is barbaric and its utility dubious. Moreover, that the abolitionists made their claims very publicly is part of their point; these issues should no longer be restricted to a technical language and a cadre of professionals.

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So, it is crucial to note that the present discussion about torture is about the legitimate powers of the State. No one contributing to the discussion is arguing for the rights of individual torturers—such as murderers, serial-killers, terrorists, and so on—to be free to torture others. The modern democratic disgust with torture is based on moral grounds; we are not dealing with a question of squeamishness or of faintheartedness, but of what is impermissible on moral grounds. However, it is not purely a moral issue; the argument also needs to be made that whatever might be said about a given, individual situation—the ‘ticking bomb’ scenario—the futility of torture is its greatest political weakness. Why is it then that this simple point is returned to again and again? Moralising about conflict does not help here. As the French sociologist of science Bruno Latour notes, talk of the ‘Axis of Evil’, the ‘War on Terror’ or ‘World War III’ will have damaging consequences for polities if allowed to continue unabated. A ‘War on Terror’ is not a war in any traditional sense, because ‘there is no frontline, no territory, no camps, not even two parties’.17 This inability to identify the ‘war’ and its perpetrators has undoubtedly fuelled the anxieties that have led some to suggest that torture may be a useful device in our brave new world. The ‘shadowy and obscene’ nature of our new enemies, to invoke John Howard’s words, is being used to legitimate extreme measures. Surely, this demonisation of the enemy evokes the strategy of the ‘beautiful soul’ whose outrage at the immorality of the world around belies the disorder within his own heart. If modern democratic states have in part been founded on the official banning of torture—or, at least, the drive to ban torture—this ban is not simply due to a revulsion about the mutilation of bodies. Neither is it simply due to a desire to place limits on the arbitrary reign of monarchs, although this is indeed an ideal for modern states. It is also linked to a new commitment to the powers of speech. Take the very famous declaration of the philosopher Immanuel Kant: ‘For enlightenment of this kind, all that is needed is freedom. And the freedom in question is the most innocuous form of all—freedom to make public use of one’s reason in all matters.’18 It is no accident that Frederick the Great, who Kant cites admiringly in this essay, and who at one point provided refuge for Voltaire, was one of the first European rulers to ban torture in 1740. The founding eighteenth century theorists of modern liberal democracy are very clear on this point. It is through speech that actions will be commenced, evaluated, commended or punished, and such speech permits an ongoing re-evaluation of actions and their grounds.19 What happens with the panopticon is that punishment will no longer involve torture, that is, direct and intrusive

242 JUSTIN CLEMENS AND RUSSELL GRIGG physical coercion ratified and dispensed by the State, but will be in and of itself a re-education camp that suggests appropriate forms of action through the interiorisation of the gaze of authority. In other words, ‘speech itself becomes a central activity in democratic modernity’; statements under this condition are never absolute, but always exploratory, experimental.20 Punishments come to have less and less to do with incursions into the body, and more and more to do with regimes that focus on a criminal’s physical containment and retraining.21 In a democracy, one can and sometimes should be punished for what one has said, but must not be tortured for such—neither at the point of interrogation nor after conviction. In fact, this is one hallmark of democracy tout court—the ban on judicial torture. Everything else is up for grabs. Also, the fact that the banning of judicial torture was preceded 200 to 300 years by the movements that resulted in the abolition of the death penalty in the twentieth century is, we believe, an interesting fact in a complicated set of changes symptomatic of the new and complex relationship between the modern State and the body of its citizens. In our current research, we are in the process of analysing a range of issues concerning the State’s ‘administration’ over the body for what they can tell us about the civil and juridical status of the subject in modern democracies. What can only be regarded as an increasingly profound cleavage between the subject and his or her body is indicated by a number of developments that include the following: 1. Subsequent to the banning of torture for purposes of interrogation, there has been a gradual suppression of torture as a means of punishment to the point where, in 1992, the United Nations Human Rights Committee could state that the international prohibition of torture and ill-treatment must extend to all forms of corporal punishment used as a disciplinary measure. 2. In those jurisdictions where the death penalty remains in force, the increasing concern that the punishment be carried out efficiently and without bodily mutilation, combined with the self-congratulation, particularly in the US, over the use of the lethal injection as an allegedly painless and ‘humane’—a grotesque term in this context—form of execution, indicates a desire to demonstrate that the punishment is above all to be inflicted, to put it in Cartesian terms, upon the subject rather than the body. 3. The reappearance of the call to torture on the specious grounds that it is a means of gathering evidence that can be obtained in no other way itself, is often cast in terms of employing techniques that do

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not mutilate or maim, but inflict a maximum of pain while leaving no permanent disability. Since these and other phenomena raise complex issues that require urgent attention—but can only be properly understood by addressing the place of the body in the body politic—starting from the premise that the suppression of torture is not the eradication or dissolution of the desire to abuse the body of the other, but rather the repression of an antagonistic and sadistic urge whose persistence is tangible in its return in symptomatic form. To return to our theme, the ban on State torture, aside from being motivated by disgust at the horrific mutilation of bodies, not only aims to ensure freedom of speech but, paradoxically, also aims at ensuring a perhaps even more important freedom—the freedom not to speak. An alleged criminal will no longer be forced to implicate herself/himself in a crime at the point of interrogation; rather, trials will now have to rely upon evidence that is not based on extorted testimony. This is undoubtedly why one of the most utopian moments in TV cop shows is not the jury’s verdict, but when the arresting officer announces, ‘You have the right to remain silent’. The representatives of the law can no longer do what they will, and have to begin by telling their subjects just that. Thus it is with the struggle for democracy that the previously ‘indispensable’ uses of torture lose all justification. It is also why any real affirmation of ‘free speech’ does not mean ‘the right to say anything whatsoever no matter how offensive’. In fact, democracies need to affirm restrictions on speech; when they do so, they have not thereby become non-democratic. On the contrary, the necessity of civil suits for defamation, as well as racial vilification laws is evidence that ‘free speech’ does not mean the right to say whatever one likes. Rather, ‘free speech’ means the State shalt not torture, not in the slightest. If there is even the suspicion that a speech has been coerced through torture, or has taken place under the threat of such coercion, we no longer have democracy; true debate is rendered impossible wherever there is a suspicion that what was said may have been said unfreely. One is no longer in a democratic frame. So democracy is not about passing laws once and for all for or against, say, racial vilification. It rather entails an intense anxiety about the legitimacy of any such laws, and the possibility that they may have to change again—because a certain number of people have said so, and have said so without the threat of bodily mutilation. This is why the central liberal distinction between ‘public’ and ‘private’ is inherently unstable;

244 JUSTIN CLEMENS AND RUSSELL GRIGG and no doubt why modern democracies, which began by giving a political voice only to a tiny fraction of the male population, have now extended this franchise to an unprecedented range of persons. In any particular political matter, participants might be acting according to economic interests, they might well be deluded, they might be lying and they might have less easily comprehensible reasons for their opinions. But the democratic State has to listen, as it has to punish; and it has to keep on listening. In fact, if the democratic State has certainly shown itself capable of acting, and acting ferociously, it has also shown itself capable of vacillating and recanting, except on one point—torture. It is extraordinary how often this fundamental point is missed by the contemporary liberal defences of—or, for that matter, attacks upon—democracy, though it was a staple for the eighteenth century radicals fighting against arbitrary power. Given this state of affairs, the contemporary pressing necessities to rethink security issues may, if improperly handled, result in some very unpleasant political consequences. It seems that the consequences of a return to torture in today’s geopolitical context will include—fishing for evidence; disavowed extrajudicial punishment; a presumption of guilt; a legitimation of sadistic acts and affects; a signal that there are now no limits to the power of State officials and secret agencies; and, perhaps, an expression of an obscure drive for destruction. Given this context, the new proselytisers for torture add their voices to those who are demanding the vitiation of existing democratic bulwarks against arbitrary detention, habeas corpus, presumption of innocence, open and transparent legal procedures (including appeals procedures), and so on. As many humanitarian organisations have argued with respect to present US governmental practice, disappearing people, or holding them in arbitrary detention is close to if not indistinguishable from torture.22 It might be further suggested that this does not only involve tampering with certain particular laws, but is tantamount to an assault on the foundations of law in general, that is, by treating prohibitions as if they were merely guidelines, and principles as if they were merely techniques.23 The routinisation, the naturalisation, of allegedly exceptional measures is only one aspect of such a process. Ultimately, such developments tend to devolve absolute power to a sovereign executive that no longer needs to submit to any restraints on its actions, not even to the restraints of a Hobbesian monarch, to whom one submits because he is the only agency capable of preserving one’s life in the war of all against all. Any State that sanctions torture has already neutralised democracy.

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So one of the most disturbing aspects of this ‘debate’ is that it is not and cannot be a debate at all. On the contrary, as soon as one believes that this issue can be debated and discussed just like any other, one is already lost. Once, one starts arguing in such a fashion, then all that can be expected is the escalating intensity of claim and counter-claim, a slippage from legal and political concerns to moral problems of affect, the proliferation of distinctions without difference (for example, those allegedly ‘clear eyed re-examinations’ of the evidence which insist on discriminating between, say, ‘sleep deprivation and amputation or burning or some other horror’ in Jean Bethke Elshtain’s words) and a concomitant occlusion of the real issues at stake.24 It is not that such distinctions may not have their place; it is that they do not have a place here, other than as obscurantist rhetoric. As we noted above, it is this confusion power of torture that the eighteenth century recognised as one of torture’s primary harms to the democratic State. If the polity in which one resides guarantee democracy qua freedom of speech? If it does, then it must, by definition, in intention, in spirit and letter, prohibit torture as a tool of State. This is so because the exclusion of torture—we might even say physical coercion more generally—constitutes the conditions for free speech and thus for free debate. Anyone who tries to act as if torture might be reintroduced even ‘a little bit’, as it were is already lost. Pragmatically, yes, states will undoubtedly always try to torture in one circumstance or another (for example, the French in Algeria, the British in Northern Ireland, the Coalition of the Willing in Iraq), but this ‘fact’ in no way vitiates the necessary absolutism of the principle. On the contrary, without such a principle, there will not even be any possible recourse or restitution for the victims of torture. Lest we forget, in principle, anyone who wishes to abrogate the absolute prohibition on torture, no matter how allegedly well-meaning or pragmatic, no matter how much of a hard-nosed realist they would like to think of themselves as being, is nothing of the kind. They are simply the inhabitants of one or another anti-democratic frame of reference.

Torture and Psychoanalysis Why have psychoanalysts become involved in this experience at all? What interest could psychoanalysis have in the crime of torture? What expertise could psychoanalysis bring to this political, legal and moral question?

246 JUSTIN CLEMENS AND RUSSELL GRIGG As very many commentators have shown, the claims made by the proselytisers for torture are for the most part inaccurate and unfounded. To take only the most extreme of these here—to hold, as have several local Australian legal academics, that torture is an ‘excellent informationgathering device’ is plainly wrong. No one acquainted with the extensive body of psychological evidence could make such a claim. Donald Rumsfeld has himself admitted that the extensive information acquired from years of prisoner abuse at Guantanamo Bay has been ‘low-grade’. The claims that torture can provide useful information are not only empirically false, but fit rather uneasily with other claims often made as part of the same argument; for example, that hypothetical ‘thought-experiments’ are effective tools for thinking about the possibilities for torture. Perhaps this latter claim is true. But it is difficult to maintain a declared allegiance to ‘hard-nosed realism’ on the one hand even though you provide no facts (there are none), and, in their place, proffer only extraordinary imaginary scenarios of ‘ticking time-bombs’.25 It is important to note here the desperate anxieties about ‘speeding up the process’ and ensuring ‘efficiency’, themes that seem to have been exported from the rhetoric of businessmanagement. There has also been a notable absence in the discussions of those in favour of torture around the sorts of institutions, regulations and personnel which would be necessary to run State-sanctioned torture chambers. How does one train government torturers—in special schools; with what tools; and with what subjects? It is very disturbing and empirical evidence tends to suggest a kind of ‘slippery slope’ aspect to the naturalisation of torture. In Kate Millet’s words, ‘Once established, the practice of torture seems to become applicable to any group or situation. A convenience, a way of dealing with certain elements, certain social problems, a brutality that establishes itself as expedient.’26 In this context, we were particularly struck by Michael Ignatieff’s ‘acknowledgement’ that the ‘argument that torture and coercion do not work is contradicted by the dire frequency with which both practices occur.’27 What is false about such an acknowledgement—which tries, in its otherwise exemplarily liberal fashion to contend rigorously with the objections of such fellow travellers as Richard Posner—is that it participates in the misrepresentation that Posner and others continue to promulgate. The misrepresentation is this: that those who torture know that it gets results. The problem here reduces to this: what constitutes ‘results’ under those conditions must remain obscure and confused.

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Enjoyment of brutality, the abuse of power, generating terror in a subject population, and so on, are all unquestionably ‘results’ generated by torture; they are not just the results that are being claimed for it. Torture, yes, terrorises, but there is little evidence that it provides the ‘crucial information’ that is currently the alibi for its revivification as a tool of State; nor does torture ultimately make states safer. We find it difficult to believe that any of the South American dictatorships that used torture as an integral part of their statecraft were any more secure as a result (they were certainly more violent, iniquitous and corrupt); it does not seem that the current US policy of ‘rendition’ will ensure a better result. Yet, to have disproved a claim or a theory is by no means to have vanquished it. Nor does undermining the justifications for a practice necessarily hinder the continuance of that practice. On the contrary, it seems unlikely that proponents of torture will be swayed by any calls for a reality-testing of their ideas. This ‘force of the incoherent’ that is, the force of fantasy, is a particularly important phenomenon for psychoanalysis.28 Indeed, psychoanalysis properly began when its founder, Sigmund Freud, realised that although patients do in some way know the truth of their situation, their sickness derives from their inability to recognise or acknowledge that it is essentially self-sustained. Resistance to (one’s own) truth is as much a feature of large political movements as it is of individual pathologies.29 Much more important than truth in the motivations and behaviours of individuals and groups are primal affects—shame, fear, loathing, envy, panic, anxiety—and the socio-cultural rituals that have been developed to master them. In the case of torture, this feature should give us cause for concern. The very weakness of the claims for reinstating torture as a tool of State security organisations, the inconsistency of the arguments for doing so, and the resolute rejection of the historical, political and psychological evidence in the name of ‘realism’ are indices of a very dangerous contemporary political fantasy. One should not believe that the best way to disarm such a fantasy is by simply pointing to empirical evidence, to logic, to morality, or even to existing legal provisions because these are what this fantasy or bundle of fantasies is attacking. Certainly, one must continue to argue by recourse to empirical evidence and the rest, but such a recourse remains insufficient on its own to neutralise the manifest drive to reinstate torture as a necessary, desirable and viable governmental defence against ‘the global terrorist threat’ in ‘the wake of September 11’. The fact that these scare-quoted phrases, and others like them, have so quickly become such familiar slogans—in and

248 JUSTIN CLEMENS AND RUSSELL GRIGG of themselves supposedly adequate to justify the abrogation of existing legal systems—is itself disturbing, symptomatic of just such a fantasy. A fantasy is almost never corrected by the truth, as it has very little to do with any state of affairs in the ‘real world’; rather, a fantasy is a kind of frame through which the ‘real world’ can appear at all. This may require some further explanation. Certainly, every psychoanalytic orientation agrees on the crucial importance of fantasy in subjective life. As Ethel Person puts it: Fantasies—daydreams, castles in the air, mental scripts, and scenarios— filter our experience of the inner and outer worlds to a surprisingly large extent…in truth, fantasy is as essential as air, forming the medium or the ether in which all the other activities of mind take place. Fantasy also impacts on the world outside our mind.30

On such an account, fantasy is just a name that we can apply to almost any of the aspects of mental life that do not simply correspond to reality and can be equated with a kind of spontaneous fiction-making in which one cannot help but indulge, often without knowing it. There are of course intra-psychoanalytic disagreements about what fantasies are, their aetiology and function, and how they should be analysed. This is in some ways a consequence of Freud’s own ambiguities. As J. Laplanche and J.-P. Pontalis put it, Freud’s doctrine of fantasy seems to be located ‘exclusively within the domain of opposition between subjective and objective, between an inner world, where satisfaction is obtained through illusion, and an external world, which gradually, through the medium of perception, asserts the supremacy of the reality principle’.31 The ‘reality principle’, however, is not the same as what is commonly taken for ‘reality’; the point for Freud is that everything that comes to be denominated ‘reality’ is the consequence of later psychological ‘secondary revisions’ of infantile experience. Human consciousness begins with fantasy, not reality, and reality itself is built out of the often-brutal interactions between an individual’s fantasies and external events. Freud’s basic positions were further developed by practitioners that came after him. For Melanie Klein and Susan Isaacs, fantasy remains an immediate and primordial fact, operative in the infant from the beginning, incorporating a relation—indicatively, sadistic or mortificatory—to an object of some kind. This relation is irreducibly ‘sexual’, in the expanded sense that Freud gives to this term. Moreover, fantasy is linked to trauma; one might almost say torture. ‘Freud’s view that sexuality itself is traumatic; and Lacan’s contribution has been to theorise how it is that trauma is related

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to a lack’.32 So what is absolutely central for almost all psychoanalytic orientations—despite their notorious differences—is, first, the conviction that fantasy underpins what counts as reality; second, that fantasy is based on a lack (of reality); and third, that fantasy is the name for the operations that try to canalise traumatic experience. Fantasy is therefore ‘fictional’, not being ‘really real’, but it is not simply one fiction among others; rather, it is tied directly to psychic drives and, as such, is not susceptible to the sorts of interpretation and ‘reality-testing’ to which one might submit fictions that we can recognise as such.33 Fantasy thereby defends against both reality and other fantasies. Indeed, once the aetiology and role of fantasy are taken seriously, ‘reality’ itself can no longer be considered an ‘objective situation’ on which we could all agree if we were just serious about the thing, but it will instead be something like what it is that forces humans to keep inventing new ways to sustain their inability to give up on infantile experience. Humans only become acquainted with reality through experience, but this experience is itself integrally shaped by erotic and aggressive drives which are never quite overcome, but whose modes of expression instead become more and more insidious and ramified with time. There are, therefore a number of interconnected reasons why material evidence is never enough on its own to shift a fantasy. First, a fantasy indiscernibly shapes in advance the world within which certain events can appear as evidence at all. What counts as evidence in one framework may not even be able to be registered at all in another. It may not even be possible to point out this incommensurablity to either of the parties. It is difficult, almost impossible, to see the limits of one’s own fantasies, though they may be only too clear to others. Second, a fantasy emerges to canalise and redirect a subject’s otherwise unspeakable feelings. Attempts to transform such a fantasy, however minimally, may therefore be experienced as and, indeed, may well be an attack on the subject itself.34 A fantasy is not an optional extra, but a necessity for a subject. We are all fantasists. Third, fantasy involves a certain misdirection—to respond to what the fantasy seems to be addressing is to misunderstand what the fantasy is actually doing. What fantasy makes possible for the subject’s activities may have little or nothing to do with the apparent content of the fantasy itself. Fourth, a fantasy may well feed on opposition as part of its mechanisms of self-stabilisation. Certain sorts of fantasy—take, for instance, the popular doctrine of ‘the enemies of the people’—may actually gain in plausibility when attacked. After all, who would attack those who attack the enemies of the people, except of course the aforementioned

250 JUSTIN CLEMENS AND RUSSELL GRIGG enemies of the people. This sort of fantasy is particularly difficult to budge; if the people themselves protest, they must have been infiltrated by the enemies of the people. This is where psychoanalysis can be of use. Psychoanalysis—unlike many other comparable accounts—insists that a substantial part of human psychology involves the desire to dominate and torture others.35 Indeed, every society is founded on physical violence, and this violence must find its support in the human body, its pleasures and pains, its emotions and thoughts. The surprise for psychoanalysis is not that people torture, but that people do not torture, that they sometimes refrain from and even abominate the practice. Sadistic drives are integral to human life. As Freud famously writes in Civilisation and its Discontents: …men are not gentle creatures who want to be loved, and who at the most can defend themselves if they are attacked; they are, on the contrary, creatures among whose instinctual endowments is to be reckoned a powerful share of aggressiveness. As a result, their neighbour is for them not only a potential helper or sexual object, but also someone who tempts them to satisfy their aggressiveness on him, to exploit his capacity for work without compensation, to use him sexually without his consent, to seize his possessions, to humiliate him, to cause him pain, to torture and to kill him.36

Psychoanalysis, moreover, insists that we all, in some way, suffer from infantile traumas, even in the best of cases; furthermore, that we continue to inflict this suffering on others, in a variety of self-deceiving ways. No one is exempt from this state of affairs. There is no way in which we can make an absolute break either with our own formative pain or with our own self-deceptions. When the tension between self-deception and reality becomes too great, illness may ensue. Yet psychoanalysis aims to counteract the worst ravages of such illnesses through a non-intrusive process of listening and talking. ‘Free association’ means to keep talking, about anything whatsoever that comes into your head, no matter how apparently irrelevant, stupid or obscene, and know that you will not be judged by your interlocutor (the analyst)—and certainly not punished—for anything that you might say. If drugs are sometimes unavoidable in the treatment of psychological disorders, psychoanalysis, as well as many other forms of psychotherapy, reminds us that such dispensing can also be experienced as a violent incursion into the body of a patient—a foreign substance with often quite disturbing physiological–mental side-effects, allegedly delivered for the patient’s

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‘own good’, by a powerful authority figure.37 This is also why anyone who insists on ‘doing good’ for others, even with the best of intentions, may be irremediably compromised in advance. For such reasons, added to the wealth of clinical evidence, budging even an individual’s fantasy is an extremely difficult and volatile affair, let alone the social fantasies that traverse larger agglomerations of people. It requires not only listening closely to what people are saying—no matter how apparently obscene, irrelevant or incoherent—but slowly working, often over extended periods of time, to reattach these utterances to their lives in a less damaging way. This was part of the justification for organising a forum on ‘The Crime of Torture’ in the first place. The work of listening must go on, even if all it ultimately gathers is mere information about why, for example, torturers themselves today insist that they are the real victims; for example, that their nations are threatened as never before by suicidal terrorists, that security forces cannot be hamstrung by restrictive laws, that any attempt to restrict new measures plays directly into the hands of enemies, and so on.38 As Brian Stagoll once put it in an article entitled ‘Epistemology and Torture’, ‘torture is the antithesis of the therapeutic process’.39 The therapeutic process requires the testimony of victims, the (often public) listening to and inscription of their stories, over a protracted period of time. If torture drives at the hostile takeover of a victim’s entire existence, to the point where even the very words they speak are no longer permitted to be their own, psychoanalysis depends, above all, on ‘free association’, on the patient talking and talking about anything whatsoever, until the patient is finally able to assume responsibility for her/his freely-uttered words. As psychoanalysis suggests, you are often the unfree state of which you complain. What such patients often need is not to be told what to do, what they ‘really think’, or what is (allegedly) best for them, but simply to be listened to, to find somewhere to deposit their thoughts, the residues of experiences, that continue to torment them. Psychoanalysis, perhaps scandalously, would insist that the torturers as much as the victims are worthy, needy of such attention. But attention is not tantamount to affirmation. So, perhaps unexpectedly, torture and the psychotherapies are inextricably linked. The long-term consequences of torture are an insistent refrain throughout Joseph Schwartz’s recent history of psychoanalysis, Cassandra’s Daughter, in which he mentions the child-torturers of Nicaragua, who had been taught to pluck out the eyes of the regime’s enemies. What do you do with such children when (if) the terror finally

252 JUSTIN CLEMENS AND RUSSELL GRIGG stops? These children are being treated by psychoanalysts.40 The French historian and psychoanalyst Michel de Certeau has suggested how torture subsists at the heart of modern democracies as a routine and indispensable administrative practice.41 And there is now a vast psychological literature on the long-term effects of the traumas suffered by torture-victims, effects that have consequences for families, communities, health-systems, and so on, far beyond the immediate context of the crime.42 But if, in this context, psychoanalysis might function as—a diagnostic tool (for instance, in the analysis of political fantasies); an organisational procedure (for instance, a way of getting people to speak to each other in unfamiliar or hostile circumstances); a therapeutic activity (for instance, helping to treat victims of torture) and an early-warning device (for instance, human beings find torture desirable, and so any attempts to legitimate the practice must be strenuously and immediately combated)—it must nonetheless remain marginal to this so-called ‘debate’. It must take a back-seat to those forms of legal, ethical and political activism now concerned to protect our democracies from sliding into an authoritarianism prepared to torture suspects on principle. As the South Vietnamese torturers used to say, ‘If they are not guilty, beat them until they are.’ We do not pretend to offer a definition of what a democracy is; but it seems to us that an absolute, necessary condition for any democracy, whether in its ancient Greek form of participatory democracy or the varied modern forms of representative democracy, is an absolute interdiction upon torture as a tool of state. We have already presented some of the unexpected consequences of such an interdiction. Theorists of democracy, undoubtedly puzzled by the manifold ambivalent and shifting forms that democracy has historically taken, have found it difficult to say exactly what constitutes a democratic polity. To pick any particular State of the system as representative is already to have missed what is essential. We believe that what is essential to democracy is that what can and cannot be said, what can and cannot be done, must be in ceaseless mutation, simply because the separation and tension between ‘authority’ and ‘voice’, between ‘action’ and ‘being’, that is at the heart of democracy constantly presses at all actual psychological, social, political and legal limits. As we have argued here, torture is one limit it must not cross. Democracy, like any other form of human community, cannot avoid violence, and is perhaps even founded on violence. But, unlike every other form of political organisation to date, it has constitutively forbidden itself the possibility of torturing its subjects. Given that one necessary condition of democracy is an absolute interdiction on State torture, when the State

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seeks to reintroduce official torture, on whatever grounds, this is tantamount to a constitutional assault. What the practice of psychoanalysis enables us to say is that ‘free association’ and torture are political antitheses; whoever speaks up for torture as a tool of state under any circumstances is, consciously or not, assaulting the foundations of democracy. And they do so because, as psychoanalysis has demonstrated in a number of ways over the past century, human beings love torture but cannot always admit to it; the drive to reinstate torture, to be anti-democratic, is an insistent temptation for human beings. If we wish to continue to live in a democratic polity, such a drive must be resisted at all costs.

Notes 1. Elias Canetti, Crowds and Power, trans., Carol Stewart (New York: Farrar, Straus and Giroux, 1984), p. 284. 2. Jean-Paul Sartre, ‘Preface’, in Henri Alleg, The Question, trans., John Calder (New York: Braziller, 1958), p. 23. 3. This chapter originated in a forum on ‘The Crime of Torture’ organised by the Psychoanalytic Studies program at Deakin University, and held on 25 June 2005 at the Immigration Museum in Melbourne, the day preceding the International Day for Torture Victims. Speakers included politicians, lawyers, civil rights activists, philosophers, sociologists, mental health and other professionals working with the victims of torture—Lindsay Tanner, Patrick McGorry, Robert Sparrow, Paris Aristotle, Brian Walters, Marius Smith, Stan van Hooft, Geoff Boucher, Matthew Sharpe, Lynne Alice, Ian Weeks, Les Thomas and Max Charlesworth. The presentation dealt with a variety of issues thrown up by the recent revivification of the alleged ‘goods of torture’. Political, psychological, legal, philosophical and pragmatic questions were discussed in detail, from a number of professional and personal perspectives. We would also like to thank Juliet Rogers for her help and encouragement with this chapter. 4. This stricture also applies to some other articles in the International Covenant on Civil and Political Rights, which are specified in Article 4 (1) and (2) of the covenant. Article 4(1): In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. Article 4(2): No derogation from articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may be made under this provision. 5. See Anthony Lewis, ‘Introduction’, in Karen J. Greenberg and Joshua L. Dratel (eds), The Torture Papers: The Road to Abu Ghraib (New York: Cambridge University Press, 2005). For commentary, see Karen J. Greenberg (ed.), The Torture Debate in America

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6.

7.

8.

9. 10. 11. 12. 13.

14. 15.

(Cambridge: Cambridge University Press, 2006); Amy Goodman, ‘Foreword’, in Jennifer K. Harbury, Truth, Torture and the American Way (Boston: Beacon Press, 2005); Craig R. Whitney, ‘Introduction’, in Steven Strasser (ed.), The Abu Ghraib Investigations (New York: Public Affairs, 2004). When the Abu Ghraib photographs were released, President Bush, Secretary Donald Rumsfeld, and others initially condemned the abusive acts they depicted as the work of ‘a few bad apples’. For details, refer to David W. Bowker, ‘Unwise Counsel: The War on Terrorism and the Criminal Mistreatment of Detainees in U.S. Custody’, in Greenberg, The Torture Debate in America, p. 194. See Alan Dershowitz, ‘The US Military Need Not Obey the Geneva Conventions when Dealing with Suspected Terrorists’, in Tom Head (ed.), Is Torture Ever Justified? (Detroit: Greenhaven Press, 2005); also ‘Tortured Reasoning’, in Greenberg, The Torture Debate in America, pp. 257–80. The event was so horrific that even Sanson, the Chief Executioner, was incapable of discharging his duties, and offered 100 Louis to a subordinate to help with the job (that is, plying the red-hot pincers). See Michel Foucault, Discipline and Punish: The Birth of the Prison, trans., Alan Sheridan (New York: Vintage, 1979). Stephen Greenblatt, Will in the World: How Shakespeare Became Shakespeare (London: Jonathan Cape, 2004), p. 178. See Peter Gay, Voltaire’s Politics: The Poet as Realist (New Haven: Yale University Press, 1988). See Jeremy Bentham, The Panopticon Writings (ed.), Miran Bozovic, (London: Verso, 1995). See the articles collected in Ronald D. Crelinsten and Alex P. Schmid (eds), The Politics of Pain: Torturers and Their Masters (Boulder: Westview Press, 1995). Though now outdated in several ways, George Ryley Scott’s A History of Torture provides some substantial background material. See George Ryley Scott, A History of Torture (London: Senate, 1995 [1940]). See Cesare Beccaria, On Crimes and Punishments and Other Writings, R. Bellamy (ed.), trans., R. Davies (Cambridge: Cambridge University Press, 1995). For a completely different view of how and why judicial torture disappears from European law, see J.H. Langbein, Torture and the Law of Proof: Europe and England in the Ancien Régime (Chicago & London: University of Chicago Press, 1977). Langbein persuasively demonstrates that the public and political outcry against torture in the eighteenth century relied on arguments as old as judicial torture itself. Moreover, the little the abolitionists had to add to these ancient arguments, when it was not simply irrelevant, was based on ignorance. Langbein even goes so far as to accuse them of having held back a struggle that had in fact already been quietly won. It is not the abolitionists who we should thank for the abolition of torture, but certain changes internal to the law itself, that is, what Langbein calls ‘a revolution in the law of proof’ regarding the admissibility of circumstantial evidence. It is because weaker forms of evidence than those available through torture become admissible in certain sorts of cases that the law gradually shifted toward the use of such evidence, relying less and less on torture as a result. This is a strong thesis, as far as it goes. Langbein, however, makes certain initial delimitations which thereafter lead him to misrepresent the real problem; indeed, he refuses to admit the fact that political struggles against sovereign powers were fought within the restricted domain of the

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law itself, and in such a way as to cipher their wider intent. The legal and the political cannot be separated in the way which Langbein presumes, and especially not when it is a question of torture. Let us take just one instance of Langbein’s misrepresentation of the historical evidence. In Chapter 7, Langbein (Ibid.) notes that Sir Francis Bacon completely fails to mention torture in his tract on the kingly prerogatives, adding that Sir Thomas Smith and Sir Edward Coke also ‘deny the existence or the legality of torture’. For Langbein, all this suggests why the crime of torture in England was ultimately just let drop, because the stakes were now elsewhere. However, it is possible and, we believe, necessary, to read these very documents in the opposite sense to Langbein. First, we need to remember that the struggle against despotic power at this time dare not speak its name, that those seeking to restrict the unlimited power of monarchs had to be chary of saying so directly. Thus, second, this struggle had to be prosecuted in more ‘esoteric’ or covert ways. The place at which sovereign power expresses itself most forcefully, most clearly and most unjustly is in the domain of torture. This is why Coke and his allies—crucially, in this context, the committed enemies of Bacon—deny the legality of torture. By doing so, they are directly seeking to limit sovereign power. So Bacon’s refusal to mention torture in his tract really does demonstrate that he is the perfect royalist he claims he is, because he is writing in a context in which everyone knows that it is torture that is helping to render the exceptional claims of sovereign power suspect. Bacon’s strategy is therefore of the genre ‘best not mention it under the circumstances’, at the same time that, in his allegedly proto-scientific works, he is urging that nature herself be ‘put to the question’ (that is, tortured). So when Langbein (Ibid.: 129–30) continues: …we suggest that the power to torture did inhere in the prerogative, not affirmatively but defensively. It derived from the doctrine of sovereign immunity. The sovereign was immune from suit in his own courts. Not only were King and Council immune, they could immunise their agents. This confirms our own analysis, not his. Torture and unrestrained sovereignty are integrally bound, so it is no surprise, then, that ‘King and Council kept tight control over the use of torture’ (Ibid.: 131). This is why we would like to stress the irreducible ambivalence of Langbein’s position. He can only make the advances that he has because he has so carefully restricted himself to a study of the legal documentation, but it is also because of this restriction that his claims that judicial torture simply ‘fell into desuetude’ miss the concerted political struggle that was going on behind the scenes. Langbein’s revisionism underplays that there was such a struggle, and how this struggle was played out. As Langbein phrases the position he contests, ‘The abolition of judicial torture was both a juristic and a political event.’ We agree with this (Langbein does not), for it is precisely the indissociability of law and politics on just this point that must not be missed in any discussion of torture. 16. Let us praise here—of all things—quotation marks for their role in safeguarding our democratic freedoms. As Magreta de Grazia writes: Lax use of quotations summons up the grisly shadow of compulsory selfincrimination, of being forced to bear witness against oneself, in this instance by being made to speak (or, more precisely, by being made to look in print to speak)

256 JUSTIN CLEMENS AND RUSSELL GRIGG self-condemnatory words….Lurking behind the Courts’ dread of misquotation is, I would like to suggest, a long history of the gruesome inquisitorial procedures deployed in Europe and England to exact self-incriminating testimonies. Defamatory misquotation and coerced confessions are both procedures for putting self-incriminating words into another’s mouth. See M. de Grazia, ‘Sanctioning Voice: Quotation Marks, the Abolition of Torture, and the Fifth Amendment’, in P. Jaszi and M. Woodmansee (eds), The Construction of Authorship: Textual Appropriation in Law and Literature (Durham & London: Duke University Press, 1994), p. 286. de Grazia immediately continues: ‘The Fifth Amendment to the US Constitution was drafted to guard against the juridical horror of coerced confessions and testimonies’ (Ibid.: 286). 17. Bruno Latour, ‘In Terror There Is Error’, Domus (May 2005), p. 71. 18. Immanuel Kant, ‘An Answer to the Question: What Is Enlightenment?’ in H. Reiss (ed.), trans., H.B. Nisbet, Political Writings (Cambridge: Cambridge University Press, 1991), p. 55. Again, this is why, if many of the arguments offered by the eighteenth century critics of torture have a long history, it is the very fact that they offer them to the public for its response that renders their contribution democratic. 19. In this context, see the very interesting work of Frances Ferguson, especially Pornography, the Theory: What Utilitarianism Did to Action (Chicago & London: University of Chicago Press, 2004). This is a book whose argument uses pornography to exemplify some key, if usually overlooked, features of modern social systems. As Ferguson (p. xv) phrases her argument: The utilitarian perspective of both Sade and Bentham moved discussion from individual identities to actions and highlighted the uses that even fictitious representations came to have in encouraging people to feel that they can see actions, which are by their very nature less conspicuous than persons themselves. In utilitarian systems, power does not, as Foucault puts it, come from everywhere as a contribution of all the participants in a social group. It is also continually being redistributed. 20. This is another crucial point, and one which will be missed if one sticks purely to a ‘moral’ or a ‘legal’ framework for examining the discourses of this era. The very ways in which the Enlightenment philosophes promulgated their doctrines attempted to maximise the values of public, open and ongoing debate—which makes the transformations they effected upon the media an integral part of their message. As Dena Goodman puts it: Through the circulation of letters, a network of intellectual exchange was defined that was the first circle of expansion beyond the walls of the salons. As letters and correspondences became the bases and models for print media of broader circulation, these networks expanded and went truly public. See Dena Goodman, ‘Letters into Print: Correspondence and Communication in the French Enlightenment’, in Transactions of the Eighth International Congress on the Enlightenment, Vol. II (Oxford: Alden Press, Oxford, 1992), p. 884. 21. Even a brief glance at the dates at which European states banned judicial torture is revealing: England, 1640; Scotland, 1708; Prussia, 1740; Austria, 1776; Italy, 1786; France, 1789; Russia, 1801; Spain, 1812. We take these dates as indices that major

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23.

24.

25.

26. 27.

28.

29.

257

democratic upheavals (even if ‘unsuccessful’) have something to do with the interdiction or cessation of judicial torture. If the specific preconditions for such a development go back a lot further (for instance, immanent legal developments), it is notable that it takes real political agitation to get things moving along. Moreover, though it took a lot longer for physical torments to disappear from the education system altogether (such as, floggings), this banning of torture is accompanied by a welter of arguments condemning the use of physical coercion in schools. For a discussion of the very public ongoing issues around detainees in American detention centres, see Alfred W. McCoy, ‘The Outcast of Camp Echo: The Punishment of David Hicks’, The Monthly, No. 13 (June 2006). On some of the consequences of a permanent ‘state of exception’, that paradoxical situation in which laws are suspended by the sovereign at the same time that they are fully maintained, see Georgio Agamben, Homo Sacer: Sovereign Power and Bare Life, trans., Daniel Heller-Roazen (Stanford: Stanford University Press, 1998). For Agamben, this ‘suspension of law’ is the ‘orginary operation of law’ rather than its perversion. See also Giorgio Agamben, State of Exception, trans., Kevin Attell (Chicago: University of Chicago Press, 2005). Jean Bethke Elshtain, ‘Reflection on the Problem of “Dirty Hands”’, in Karen J. Greenberg (ed.), The Torture Debate in America (Cambridge: Cambridge University, 2006), p. 86. For an excellent account of some of the problems with such scenarios, see John Kleinig, ‘Ticking Bombs and Torture Warrants’, Deakin Law Review, Vol. X, No. 2 (September 2005). Kate Millet, The Politics of Cruelty: An Essay on the Literature of Political Imprisonment (New York & London: Norton, 1994), p. 291. Michael Ignatieff, ‘Moral Prohibition at a Price’, in Kenneth Roth and Minky Worden (eds), Torture: Does It Make Us Safer? Is It Ever OK? (London & New York: The New Press, 2005), pp. 25–26. This is the title of a well-known book, in which the origins and uses of individuals’ fantasies are discussed in detail. See Person, Ethel, By Force of Fantasy: How We Make Our Lives (New York: Basic Books, 1995). Though psychoanalysis as a clinical practice has for the most part restricted itself to the treatment of individuals, work with groups is not unknown. Clinical group-work has, most famously, been practiced at the Tavistock Clinic in London, just as there continues to be a flourishing trade in group analysis, group therapy and family therapy of a psychoanalytic inspiration. Moreover, psychoanalysis has not hesitated to theorise the workings of larger groups, and though it may be that the categories appropriate to individual psychopathology (such as ‘hysteria’, ‘obsessional neurosis’ or even ‘the Oedipus complex’) are inapplicable in their pure form to larger human groups, there are nonetheless shared processes that psychoanalytic interventions have revealed. Freud himself opens his Group Psychology and the Analysis of the Ego (1921) with the statement: The contrast between individual psychology and social or group psychology, which at a first glance may seem to be full of significance, loses a great deal of its sharpness when it is examined more closely. It is true that individual psychology is concerned with the individual man and explores the paths by which he seeks to find satisfaction for his instinctual impulses; but only rarely and under certain

258 JUSTIN CLEMENS AND RUSSELL GRIGG exceptional conditions is individual psychology in a position to disregard the relations of this individual to others. In the individual’s mental life someone else is invariably involved, as a model, as an object, as a helper, as an opponent; and so from the very first individual psychology, in an extended but entirely justifiable sense of the words, is at the same time social psychology as well.

30. 31. 32.

33.

34.

35.

See Freud Sigmund, The Standard Edition of the Complete Psychological Works of Sigmund Freud, Vol. XVIII, J. Strachey (ed.) (London: The Hogarth Press, 1955). In Group Psychology, Freud himself examines such cases as the Church, the army, wild street mobs, and a teenage girls’ boarding school; since Freud, psychoanalysts have extended their analyses to a wide range of groups and their dynamics. See Person, By Force of Fantasy, p. 1. Jean Laplanche and J.-P. Pontalis, ‘Fantasy and the Origins of Sexuality’, in Victor Burgin (ed.), Formations of Fantasy (London & New York: Methuen, 1986), p. 6. Russell Grigg, ‘Signifier, Object, and the Transference’, in Mark Bracher and Ellie Ragland-Sullivan (eds), Lacan and the Subject of Language (New York: Routledge, 1991), p. 111. In addition to the texts already cited, for a range of further reading on the topic of fantasy, see S. Akhtar and V.D. Volkan (eds), The Seed of Madness: Constitution, Environment, and Fantasy in the Organization of the Psychotic Core (Madison: International Universities Press, 1997); S. Grolnick and L. Barkin with W. Muensterberger (eds), Between Reality and Fantasy: Transitional Objects and Phenomena (London & New York: Jason Aronson, 1978); R. May, Sex and Fantasy: Patterns of Male and Female Development (New York & London: W.W. Norton & Co., 1980); H. Segal, Dream, Phantasy and Art (London & New York: Tavistock/Routledge, 1991); L. Shengold, Soul Murder: The Effects of Childhood Abuse and Deprivation (New York: Fawcett Columbine, 1989); S. Zizek, The Plague of Fantasies (London & New York: Verso, 1997). Indeed, some psychoanalytic theorists have gone so far as to suggest that what torture ultimately aims at—beyond its only-too-familiar uses as information-extraction, prejudicial punishment, and a warning to others—is the total destruction not only of the sufferer’s physical being, but of his/her fundamental fantasy, the frame that structures his/her entire way of life. This brings in the problem of enjoyment, of the affective bases of human action. See also S. Zizek, The Metastases of Enjoyment (London: Verso, 1994), especially p. 75. This also holds for the institutions which humans build, and into which they are born. As Eric Santner affirms, building on the work of Michel de Certeau: Torture is the way an institution simultaneously confesses and represses its deepest secret: that its consistency, its enjoyment of recognition as a really existing social fact, ultimately depends on the magic of performative utterances, on the force of their own immanent process of enunciation. The abjection produced in the torture victim, his betrayal of everything that matters and is dear to him, his confession of his own putrescence, is, as it were, the ‘substance’ that stands in for the lack of substantial foundations to which the institution might appeal for final and ultimate legitimation. See Eric Santner, My Own Private Germany: Daniel Paul Schreber’s Secret History of Modernity (Princeton: Princeton University Press, 1996), pp. 42–43.

The Crime of Torture

259

36. Sigmund Freud, Civilisation and its Discontents, in The Standard Edition of the Complete Psychological Works of Sigmund Freud, Vol. XXI (1927–31), J. Strachey (ed.). (London: The Hogarth Press, 1961), p. 111. It is also worth noting Friedrich Nietzsche’s remarks that: In the act of cruelty the community refreshes itself and for once throws off the gloom of constant fear and caution. Cruelty is one of the oldest festive joys of mankind. Consequently it is imagined that the gods too are refreshed and in festive mood when they are offered the spectacle of cruelty—and thus there creeps into the world the idea that voluntary suffering, self-chosen torture, is meaningful and valuable.

37.

38.

39. 40.

41.

Please refer to Friedrich Nietzsche, Daybreak: Thoughts on the Prejudices of Morality, trans., R.J. Hollingdale (Cambridge: Cambridge University Press, 1982), p. 16. In this context, Kate Millet notes ‘the medicalization of torture’, The Politics of Cruelty, especially pp. 311–12, and Elaine Scarry gives a particularly chilling example: ‘In Uruguay, doctors assisted in the administration of drugs causing hallucinations and acute sensations of pain and asphyxiation; those who refused to assist the torturers disappeared at such a rate that Uruguay’s medical and health care programmes entered a state of crisis.’ See Elaine Scarry, The Body in Pain: The Making and Unmaking of the World (Oxford: Oxford University Press, 1985), p. 42. For an exemplary case-study of the extraordinary powers of murderous fantasies, see Klaus Theweleit, Male Fantasies, Volume 1: Women, Floods, Bodies, History, trans., S. Conway. with E. Carter and C. Turner (Minneapolis: University of Minnesota, 1987); Male Fantasies Volume 2. Male Bodies: Psychoanalyzing the White Terror, trans., S. Conway with E. Carter and C. Turner (Minneapolis: University of Minnesota, 1989). Brian Stagoll, ‘Epistemology and Torture’, Australian and New Zealand Journal of Family Therapy, Vol. 7, No. 2 (1986), p. 97. See Joseph Schwartz, Cassandra’s Daughter: A History of Psychoanalysis (New York: Viking, 1999). One should not forget that, when torture becomes an option for states, children are routinely tortured and ‘disappeared’. As de Certeau writes: The goal of torture, in effect, is to produce acceptance of a State discourse, through the confession of putrescence. What the torturer in the end wants to extort from the victim he tortures is to reduce him to being no more than that, rottenness, which is what the torturer himself is and knows that he is, but without avowing it. The victim must be the voice of the filth, everywhere denied, that everywhere supports the representation of the regime’s ‘omnipotence,’ in other words, the ‘glorious image’ of themselves the regime provides for its adherents through its recognition of them.

See Michel de Certeau, Heterologies: Discourse on the Other, trans., B. Massumi (Minneapolis: University of Minnesota Press, 1986), pp. 40–41. 42. ‘Politically driven torture may not seem a likely factor in the course of much conventional clinical work, but the unfortunate fact is that the consequences of barbarity inflicted elsewhere are increasingly to be encountered within resettlement populations here and throughout the world.’ See William Gorman, ‘Refugee Survivors of Torture: Trauma and Treatment’, Professional Psychology: Research and Practice, Vol. 32, No. 5 (2001), p. 443.

Index

Abbasi, Yusuf, 93 Abrahamic faiths, 8 Abu Ghraib, 238 Advisory Committee on minority rights, 96 Agamben, Giorgio, xxi, 217–218 conception of state of exception, 223–26 Homo Sacer: Sovereign Power and Bare Life, 216 hypothesis regarding phenomenon of concentration camp, 219–20 melancholy hypothesis, xxii state of exception as paradigm, views on, 220–23 totalitarianism, democracy and biopolitics, views on, 217–19 Albania Schools Case (1935), 102 Algerian crisis, 137 Aligarh Muslim University, 98 All India Muslim League, 94, 96, 97 All India Muslim Majlis-e-Mushawarat, 98, 101 All India Muslim Personal Law Board (AIMPLB), 99 Al-Qaida, 225 ‘American basmati’, 206 American political culture, 14 Amnesty International, xxii, 44, 102, 231 Anant, Arpita, xvi Anjuman-I-Islam, 98 anti-globalisation movement, 37, 41, 43, 52 anti-Muslim riots, 101 anti-racist movements, 83 anti-Vietnam-war movement, 48 anti-war movement, 48 Apel, Karl-Otto, 181 Apunba Lup, 232 Arabian Wahabism, 91, 92 Arendt, Hannah, 169n.16, 217

Armed Forces (Special Powers) Act (AFSPA), xx, xxii, 216 enforcement in North East India, 227 misuse of, 230–32 trajectory of, 226–29 arogyapacha, 206 Arrow’s General Possibility Theorem, xv, 60 Article 27 of Constitution of India, 102 Asbab-e-Baghawat-e-Hind, 92 Association of Indian Muslims of America, 101 Ausnahmezustand, 220 Azad, Maulana Abul Kalam, 94, 97 Babri Mosque controversy, 99, 101 Bajpai, Kanti, 107 Barber, Benjamin, xiii Barelwi, Syed Ahmad, 91, 94 Barnes, Hazel, 140 ‘basmati’ rice controversy, 205–06 Beccaria, Cesare, 240 Being and Nothingness (Sartre), 140 Benjamin, Walter, 3 Benthamite utilitarianism, 201 Bentham, Jeremy, 239 Beteille, Andre, 130 Bhargava, Rajeev, 104, 123 Bhattacharya, K.C., 123, 124, 126 biodiversity conservation, 197 biopiracy, 195–96 biopolitics, xx–xxiii, 217–19 biosharing, 195–96 Bloch, Ernst, 3, 20 Bolshevik revolution, 100, 168n.12 Bombay riots, 101 bourgeois society, 131–32, 139 B.P. Jeevan Reddy Committee, 230, 232–33

Index 261 Breton, Albert, 64 Bretton Woods institutions, 39 Bush, G.W., 13 Camus, Albert, 135. See also Camusian rebellion Letters to a German Friend, 136 The Myth of Sisyphus, 135 philosophy of rebellion, xix, 138 political philosophy, xviii The Rebel, 136 Camusian rebellion, xviii anatomy and antinomies of, 135–38 Coda doctrine, 147–48 features of, 138–42 love and friendship, 142–47 capital flow, 190 capitalism, 38 commodification of, xxi and feudalism, 5 global reorganisation of, 6 growth of, 2 international, 38 capitalist democracy, 2 imperialism, 38 capital punishment, 137, 138, 146 caritas, concept of, 144 Cartesian duality of mind and body, 198 Cassandra’s Daughter (Schwartz), 251 Castro, Fidel, 225 Causes of the Indian Revolt, 92 Chandhoke, Neera, 105 charitable justice, principle of, 12 Chatani, Lajwanti, xvi Chatterjee, Partha, xvii, 105, 127–128, 130 Chemical and Biological Weapons Conventions, 42 Chomsky, Noam, 175 Christian fundamentalism, 9 citizen-self conception of, 72–77 identity of, 78 citizenship, xv–xviii, 71 alternative models of, 74 definition of, 76 globalisation and, 50–51 patriarchal conception of, 75

principles of, 77 and sexual difference, 77 civil rights movement, 10, 11 civil society, xv–xviii and alternative modernity, 130–32 in contexts of current revival, 119–20 culture and freedom in, 123–26 ‘enlightened’ elements of, 130 institutions, 131 oppositional concept of, 117–19 and political society, 127–30 and State, 120–23 Clemens, Justin, xxii Coda doctrine, 147–48 Codes of Conduct, 45 cogito, 172 Cold War, 5, 12, 13 collective action, logic of, 65–66 collective choice, theory of, 58 collective rights of communities, 105 Commission for Linguistic Minorities, 99 Commission for Racial Equality, 99 Commission for Religious Minorities, 99 Commission of Enquiry Act (1952), 99 Commission on Marriage and Family Laws, 100 common civil code, 100 communal politics, xvii communal violence, 98, 101, 102. See also anti-Muslim riots communicative rationality, theory of, 175–178, 183 communism, 5, 78, 120, 136, 137, 142 Communist Manifesto, 38, 44 community property ownership, 208 Comprehensive Nuclear Test-Ban Treaty (CTBT), 42 The Comrade (1912–1915), 95 concentration camps, 216, 217, 219, 220, 224, 225, 228 Constituent Assembly, 96, 97 constitutional dictatorship, 222 Constitutional Dictatorship: Crisis Government in the Modern Democracies (Rosssiter), 221 Constitutional Government and Democracy (Friedrich), 221 Constitution Review Committee, 101

262 INTERDISCIPLINARY PERSPECTIVES IN POLITICAL THEORY Consultative Committee of Indian Muslims (CCIM), Chicago, 101 consumption, culture of, 7 Convention on Biological Diversity (Rio de Janeiro), 205 Convention on the Elimination of all forms of Discrimination Against Women (CEDAW), 40, 43 copyright, 198, 199 Cranston, Maurice, 141 criminal states, 236 crisis, concept of, 3 ‘crisis of authority’, 3 Critique of Dialectical Reason (Sartre), 141 cultural fundamentalism, 5, 8, 9, 13, 16, 26 culture of capitalism, 28n.3 and freedom, 123–26

Economic and Political Weekly, 130 economic fundamentalism, 5, 9, 15, 25 Economic Theory of Democracy (Downs), 62 egalitarian redistribution, 73, 78 electoral competition, 62. See also party competition Eleventh Thesis on Feuerbach, 24 emancipation, theory of, xix English Enlightenment, 28n.3 Enlightenment project, 28n.3, 172 ethnic conflict, 87 Eurocentric evolutionism, 5 European colonialism, 192 European Enlightenment, 1, 4–5, 25, 172 European Union (EU), 50

Dachau concentration camp, 220 Dar al-Islam, 93 death penalty, abolition of, 242 democratic decision-making, 58 democratic politics, theory of, 74 Deobandi ulama, 94, 112n.36 Derrida, Jacques, xiv, 5, 17–25 Faith and Knowledge, 20, 21 Politics of Friendship, 20, 21 Dershowitz, Alan, 238 Devi movement, 35n.99 Digital Future Coalition, 208 Discipline and Punish, 129 discourse ethics, xix, xx for connecting rationality and morality, 178–84 distributional coalitions, 65 Disturbed Areas (Special Courts) Act (1976), 228 D. M. Sen Commission of Enquiry, 231 domestic–international interaction, 89–91 domination-free discourse ethics, xviii Dossetti, Giuseppe, 222 Downs, Anthony, 61 Economic Theory of Democracy, 62

Faith and Knowledge (Derrida), 20, 21 Family Law Ordinance, 100 Faridi, Abdul Jalil, 98 fascism, 136, 137, 142, 171 fascist movements, 38 feminist deconstruction of patriarchy, xx feminist politics, 72 Food and Agriculture Organization (FAO), 198 foreign direct investment, 190 Foucauldian scholarship, 127 Foucault, Michel, xxi, 156, 216, 217 Fraser, Nancy, xvi, 72 free market economics, 2, 199 free speech, 238–45 Free Trade Area of the Americas (FTAA), 44 Free Trade Zones (Sri Lanka), 45 French Revolution, 136, 146 Freud’s doctrine of fantasy, 248 Friedrich, Carl J., 221 friendship concept of, 142–47 politics of, 135 fundamentalism, concept of, 7–10 Fund for the Education and Rehabilitation of Riot Affected Children, 101

Early Theological Writings (Hegel), 143 Earth Summit (Rio de Janeiro), 205

Gandhi, Mahatma, 94, 167 Gangavane, Deepti, xix

Index 263 gender equality, 78, 103 justice, 75, 82 General Agreement on Tariffs and Trade (GATT), 40, 195 Geneva Convention, 41, 224, 225 genocide, 42 Genocide Convention, 41 Giddens, Anthony, 90 globalisation and citizenship, 50–51 defined, 37–40 impact of, 7 imperialist, 39 influence on civil society, 119 international alliances and initiatives, xv meaning of, 190–95 and militarism, 46–50 nationalist opposition, 50 Neoliberal vision of, 199 and politics, 51–52 popular movements of resistance and emancipation, 43–46 principal agents of, 191 and struggle against militarism, xiv traditional knowledge, xxi global war against terror, 225 goal-directed behaviour, 58 good life, concept of, 173 Gopalakrishnan, N.S., 196 government output, influence on public choice, 63–65 Greenblatt, Stephen, 239 Grigg, Russell, xxii Gross Domestic Product (GDP), 40 Grotian natural law thesis, 89 Group of Seven, 9, 19 group rights and identities, xv–xviii types of, 87 Guantanamo Bay, 224–25, 238, 246 Gujarat genocide, 42, 102 habeas corpus, 218, 244 Habeas Corpus Act (1679), 218 Habermas, Jürgen, xiv, xix–xx, 5, 14–17, 171–72 classification of communication, 177 criticism, 184–87

discourse ethics, 180 Structural Transformation of the Public Sphere, 14 theory of communicative rationality, 175–78 view on cultural fundamentalism,16 religious fundamentalism, 16 Hasan, Mushirul, 95, 106 Hegel, G.W.F., 136 Early Theological Writings, 143 Heidegger, Martin, 17, 157, 191 Held, David, 90 Hensman, Rohini, xiv Hindi–Urdu controversy, 98 Hindu civil code, 100 Hindu Right, 105 Hirschman, Albert, 66 Hobbesian state of nature, 59 Hochberg, Herbert, 138 Homo Sacer: Sovereign Power and Bare Life (Agamben), 216 hoodia, 194, 207 human condition, elements of, 4 human modernity, 4–5 human rights abuses, 237 concept of, 16 and traditional knowledge, 202–05 identity politics, 8, 22 Ignatieff, Michael, 246 immigration, proposal to abolish, 51 imperialist globalisation, 39 Indian doctrine of secularism, 104 Indian Muslim communal violence, 98 demand for minority rights, 104 identity in nineteenth century, 91–93 marginalisation and discrimination, 98 massacre in Nellie (Assam), 100, 102 pan-Islamism and Muslim rights (1900–45), 93–97 in post-independence years, 97–103 separate electorates, 94 Indian Muslim Federation of the United Kingdom, 100 Indian Philosophical Quarterly, 124

264 INTERDISCIPLINARY PERSPECTIVES IN POLITICAL THEORY Indian Union Muslim League, 98 Indian Wahabism, 91, 92 Indrajit Barua vs. State of Assam case, 228 Information and Communication Technologies (ICT), 39 intellectual property, 191, 194, 198, 203 and development of capitalism, 199 intellectual property rights (IPRs), xxi, 195 traditional knowledge and, 198–202 international bill of rights for women, 40 international capitalism, 38 International Covenant on Civil and Political Rights (ICCPR), 42, 231, 237 International Covenant on Economic, Social and Cultural Rights (ICESCR), 42, 202–03 International Criminal Court (ICC), xiv, 40, 43 international financial institutions, 7 International Labour Code, 40 International Labour Organisation (ILO), 40 international law of human rights, 90 International Monetary Fund (IMF), 9, 39, 191 international politics, 90 International Relations (IR), 88 international trade, 190 International Women’s Peace Conference (Switzerland), 49 intra-group equality, 103 Islamic fundamentalism, 98 Islamic law, 100 Ittehadul Muslimeen of Hyderabad, 98 Jamaat-e-Islami Hind (JIH), 109 Jamaat-i-Islami, 97, 98, 99, 107 Jamiyat al-Ulama, 97, 99, 109, 112n.36 Janus-faced phenomenon, xxi Jeevani, 206 Jefferson, Thomas, 240 Jinnah, Mohammad Ali, 94, 96 Joseph, Sarah, 105 judicial torture. See torture justice claim of, 78–83 gender, 75, 82 moral theory of, 31n.36 principles of, 11

Kaliayev, Ivan, 137–38 Kani tribe, 206 Kant, Immanuel, 89, 241 hospitality, notion of, 23 universal tolerance, notion of, 23 Keane, John, 118, 119 Keynesian public policies, 6 Khan, Syed Ahmad, 92 Khilafat movement, 94, 95, 112n.36 knowledge, traditional, xx–xxiii categories of, 196–197 commodification of, 200 human rights and, 202–05 and intellectual property rights, 198–202 protection of, 196–98 and State, 205–07 Korgaokar, Chanda, 45 Kothari, Rajni, 120, 121, 125 Kuhn, Thomas, 153 Kulkarni, Mangesh, xviii Kuwaiti National Assembly, 102 Kymlicka, Will, 71 labour–capital relations, 6 labour movement, 40, 142 Lahore Resolution (1940), 96 laissez-faire, xx Latour, Bruno, 241 Law of Peoples (Rawls), 12, 13, 26 legitimacy, concept of, 163 Lele, Jayant, xiv Les pleins pouvoirs. L’expansion des pouvoirs gourvernementaux pendant et après la Grand Guerre (Tingsten), 221 letter patent, 199 Letters to a German Friend (Camus), 136 liberal economic theory, 8 liberalism, 72 linguistic competence, theory of, 175 Locke, John, 90 London Muslim League, 93 London Resolution, 100 love, concept of, 142–47 Löwith, Karl, 217 Lucknow Pact (1916), 94, 112n.41 Luhmann, Nicholas, 14, 15

Index 265 Macaulay, Thomas B., 193 Mahajan, Gurpreet, xvii, 103, 121–23 Mahdavi movement, 91 Mahmud, Syed, 98 market valuation and exchange, 201 Marx, Karl, 8, 14, 17, 21, 24, 27, 117, 192 mass electorate, 62 Meenakshipuram conversion (1981), 98 Mein Kampf, 38 Melman, Seymour, 47 migrant workers, UN conventions for protection of rights of, 50 militant identity politics, 29n.9 militarism and citizenship, 37 globalisation and, 46–50 Millet, Kate, 246 ‘minimum winning coalitions’, 63 Minorities Council of India, 101 modernisation, Western models of, 16 motherhood, 76 Mouffe, Chantal, xvi, 72, 73, 76 Mujahid movement, 109 multilateral trading system, 201 multinational corporations (MNCs), 195, 196 Muslim Community Relations Council of New York, 102 Muslim Convention, 98 Muslim marriage and family laws, codification of, 100 Muslim Personal Law, 98 Muslim Women (Protection of Rights on Divorce) Bill, 99 The Myth of Sisyphus (Camus), 135 Nandy, Ashis, 104 National Human Rights Commission, 101, 233 national liberation movements, 49 National Minorities Commission (NCM), 99 national sovereignty, 41, 43 Nazi Holocaust, 41, 42 Nazis, 220, 224 Nechaiev, Sergei, 137 Nellie massacre, 100, 102 Neoliberal vision of globalisation, 199

New International, 19, 22, 23 Niskanen, William, 64 No Exit (Sartre), 140 nomos, 227 non-coercive associationality, concept of, 118 ‘non-rivalrous’ good, 199 ‘Norin 10’ (variety of wheat), 202 Nuremburg trials, 41 Olson, Mancur, 65 On Crimes and Punishments (Beccaria), 240 one-country–one-vote institution, 39 Original Sin, doctrines of, 165 Palshikar, Sanjay, xvii pan-Islamic Khilafat Movement, 94 pan-Islamism and Muslim rights (1900–45), 93–97 Paradox of Voting, 60 Parsons, Talcott, 14 party competition, 62 Passmore, John, 139 Pateman, Carole, 75, 76 patent protection, 201 patriarchal citizenship, 75 people’s market, 7 Permanent Court of International Justice, 102 personal law reform, 99 Person, Ethel, 248 petaca, 197 Pillay, Navanethem, 233 Poe, Edgar Allen, 161 political coalitions, 62–63 defined, 155–57 economy, 3 historicist analysis, 152–55 justice, 11 and language, 160–61 morality and governance, 161–65 participation, 61, 73 rationalism, 58 Political Liberalism (Rawls), 11, 13, 26 political society, xvii and civil society, 127–30

266 INTERDISCIPLINARY PERSPECTIVES IN POLITICAL THEORY Politics of Friendship (Derrida), 20, 21 politics of identity, 22, 108 Politische Theologie (Schmitt), 221 possessive individualism, xxi, 139, 200 POTA (Prevention of Terrorism Act, 2002), 226 poverty, 38 Prisoners Of War (POW), 224, 225 private property, 2, 12 The Problem of Constitutional Dictatorship (Watkins), 221 proletarian dictatorship, doctrine of, 142 psychoanalysis of torture, 245–53 public choice theory, xv citizen voice against State, 66–67 government output, 63–65 logic of collective action, 65–66 meaning of, 57–59 party competition, 62 political coalitions, 62–63 political participation, 61 theory of state, 59–61 Purloined Letter (Poe), 161 ‘pushing polyarchy’ project, 13 racial minorities, discrimination against, 99 racial vilification, 243 Rai, Lala Lajpat, 96, 106 Rajagopal, Balakrishnan, 204 Raman, Kannamma, xxi rational actor model, 58 rationality concept of, 58 discourse ethics and connection with morality, 178–84 Raulff, Ulrich, 220 Rawls, John, xiv, xvi, 5, 10–13 concept of ‘original position’, 181 Law of Peoples, 12, 13, 26 Political Liberalism, 11, 13, 26 Theory of Justice, 10, 11, 13, 70, 78 The Rebel (Camus), 136 rebellion, philosophy of, xviii redistribution, concept of, 79 reformist movement in Egypt, 109 regional trade agreements, 44 religious fundamentalism, Habermas’ view on, 16

religious groups, identities and rights, 103–07 religious movements, 8 religious right, 11 ‘revolt’ of 1857, 92 RiceTec (company), 205–06 rights-based civility, 122 Riker, William, 62 idea of minimum winning coalition, 63 rogue states, 13, 23 Rosenau, James, 90 Rosssiter, Clinton L., 221 Rule of Law, xxii, 1, 70, 220 Rural Advancement Foundation International (RAFI), 195 Russian Socialist Revolutionary Party, 137 Sandel, Michael, 200 Sangh Parivar, 38 Sarangi, Prakash, xv Sarhindi, Syed Ahmad, 91 Sartre, Jean-Paul, 139 Being and Nothingness, 140 Critique of Dialectical Reason, 141 No Exit, 140 Sayeed, Syed A., xix Schermerhorn, R.A., 108 Schmitt, Carl, 221, 222 Schutzhaft, 219, 220 Schwartz, Joseph, 251 Scottish Enlightenment, 117 secularism, idea of, 104–05 semiotic systems, 153 The Sexual Contract (Pateman), 75 Shahabuddin, Syed, 101 Shah Bano controversy, 99 Shah, K.J., 125 Shariat, 91 Sharmila, Irom, 226 Shia Political Conference, 96 Shiv Sena, 101 Simla Deputation, 93 social contract, 59, 164 Social Darwinism, 8 social democratic theory, 79 social equity, 11 social evolution and modernity, theory of, 16

Index 267 Socialist International, 49 socialist movement, 49 social location, 127 social reality, xix social welfare, 60 socio-cultural differences, xvi Soros, George, 48 sovereignty, implications for, 41–43 Spanish–American War (1902), 225 Spectres of Marx, 18, 21, 26 Spivak, Gayatri C., 19–24, 35n.99 Stagoll, Brian, 251 ‘stakeholder’ society, 7 State sovereignty, 42 theory of, 59–61 traditional knowledge and, 205–07 welfare policies, 127 State ownership vs. private ownership, 207 strife, concept of, 144 structural adjustment programmes (SAP), 9 Structural Transformation of the Public Sphere (Habermas), 14 Sufism, 91 suicide, 138 swaraj, 106, 124, 125 syndicalist movement, 142 Tablighi Jamaat, 99, 109 Taliban, 224, 225 Taylor, Charles, xvi, 80 teleopoiesis, 22 terrorism, 136, 137, 165 Terrorist and Disruptive Activities (Prevention) Act (TADA), 101 Thakur, Shardool, xxii Theory of Justice (Rawls), 10, 11, 13, 70, 78 Tingsten, Herbert, 221 torture, xx–xxiii banning of judicial, 242 and corporal punishment, 242 and crime, 236–238 democracy and prohibition of, 238–45 and free speech, 238–245 as ‘information-gathering device’, 239 international prohibition of, 242 and psychoanalysis, 245–53

tout court, xiv, 242 trademarks, 198, 199, 205 Trade Related Aspects of Intellectual Property Rights (TRIPS), 199–201, 207 trade secrets protection and patents, 199 traditional knowledge (TK), xx–xxiii categories of, 196–197 commodification of, 200 human rights and, 202–05 and intellectual property rights, 198– 202 protection of, 196–98 and State, 205–07 transnational corporations, 7 transnationalisation, 7, 88 Tropical Botanic Garden and Research Institute (TBGRI), 206 ‘Turkey Red’ (variety of wheat), 202 Turkish Khalifa, 94 UN Charter of Human Rights, 100 UN Code of Conduct and Basic Principles on Use of Force and Firearms by Law Enforcement Officials, 102 UN Declaration on the Rights of Persons, 102 unemployment, 6, 38, 43 UN Human Rights Committee, 102 UN Human Rights Council, 198 uniform civil code, 99 Union of Needletrades, Industrial and Textile Employees (UNITE), 45 United Nations Children’s Fund (UNICEF), 103 United Nations (UN) Convention against Torture, 237 United Nations Educational, Scientific and Cultural Organization (UNESCO), 198 United Nations Equator Prize (2002), 206 United Nations High Commissioner for Refugees (UNHCR), 103 United Nations Human Rights Committee, 242 United Nations Organizations (UNO), xxi Universal Declaration of Human Rights (UDHR), 41, 202, 203, 237 universalisation principle, 181–82, 183, 187 Unlawful Enemy Combatants, 225

268 INTERDISCIPLINARY PERSPECTIVES IN POLITICAL THEORY USA Patriot Act, 224 US Federal Trade Commission, 205 US Patent and Trademarks Office, 205 validity claims, 175, 178, 179 Vedanta, 106 wages, 2, 38, 65, 67 Wahabi Jihad, 92 Wahabism, 91–92 Wahab, Muhammad-bin-Abdul, 91 Waliullah, Shah, 91 Walzer, Michael, 118 ‘war against terror’, xxii, 225 Washington consensus, 39 Watkins, Frederick M., 221 Weber, Max, 157 definition of power, xix Weimar Constitution, 219 White, Stephen, 138–39 Williams, Howard, 89, 90

Wittgensteinian theory of family resemblance, 156 Wollstonecraft dilemma, 75 Women Living Under Muslim Laws, 100 Women’s International League for Peace and Freedom (WILPF), 49 women’s rights to equality and freedom, 43 Women Working Worldwide, 45 World Assembly of Muslim Youth, 103 World Bank, 9, 39, 191 World Economic Forum, 44 World Health Organization (WHO), 197 World Intellectual Property Organization, 198 World Religions, universalism of, 26 World Social Forum, 19, 44 World Trade Organization (WTO), xiv, 38, 40, 191, 198 World War I, 49, 217, 221 World War II, 41, 89, 90, 171 Zero-sum Game Theory, 63 Zetkin, Clara, 48

About the Editor and Contributors

Editor Mangesh Kulkarni teaches at the Department of Politics and Public Administration, University of Pune. Presently, he has been selected for deputation as the first Visiting Professor to the Chair of Indian Studies instituted by the Indian Council for Cultural Relations at the University of Vienna (Austria). He has also taught at universities in Silchar (India), Zomba (Malawi), Goettingen (Germany) and Bilbao (Spain). Dr Kulkarni has published numerous articles and book reviews in journals such as the South Asia Bulletin (New York), The Australian Journal of Anthropology (Sydney), Economic and Political Weekly (Mumbai) and Wasi (Zomba). He also has the following books to his credit: A Terrorist of the Spirit (poems of V.A. Dahake, translated from the Marathi with R. Hoskote, 1992), Politics in Maharashtra (edited with U. Thakkar, 1995) and India in World Affairs (edited with U. Thakkar, 1999). He has served as Associate Editor of the interdisciplinary journal New Quest and is currently an International Advisory Editor of the Sage journal Men and Masculinities. Dr Kulkarni has received a Rotary International Grant for University Teachers to Serve in Developing Countries (1998), the Indal Fellowship of the Asiatic Society of Bombay (2000), a Research Grant of the Rockefeller Archive Center in New York (2004) and an Erasmus Mundus Scholarship of the European Commission (2009).

Contributors Arpita Anant is an Associate Fellow at the Institute of Defence Studies and Analyses, New Delhi. She has been awarded a PhD in International Politics by the Jawaharlal Nehru University. Her doctoral thesis is on ‘Group Rights in the Indian and International Discourses’. She was

270  Interdisciplinary Perspectives in Political Theory awarded the ICSSR Doctoral Fellowship and the Commonwealth Visiting Fellowship for the year 2001–02 to undertake doctoral research. Her current research interests include identity and conflict in Kashmir and nonState armed groups in Asia. She has published an article: ‘Identity and Conflict: Perspectives from the Kashmir Valley’, Strategic Analysis, Vol. 33, No. 5 (2009), pp. 760–73. She also has two papers in the NISDA Occasional Paper Series: ‘Terrorism: The Matrix of Regional Security Perspectives and Responses’, Paper No. 7, March 2007 and ‘Security in the Post-Cold War World’, Paper No.1, March 2006. Lajwanti Chatani is Associate Professor in Political Theory at the Maharaja Sayajirao University of Baroda and a Convener of the Forum on Contemporary Theory in Vadodara, Gujarat. She is Joint Editor of the Journal of Contemporary Thought. She has edited a special issue of the journal (Vol. 27, Summer 2008) on ‘Revisiting the Political’. She has also contributed to curriculum development and course materials pertaining to political theory at the Indira Gandhi National Open University and the National Council of Educational Research and Training in New Delhi. Justin Clemens teaches English at the University of Melbourne (Australia) and is Secretary of the Lacan Circle of Melbourne. He has published extensively on European philosophy, poetry and psychoanalysis, and Australian art and literature. His books include the following: The Romanticism of Contemporary Theory (2003), The Mundiad (2004), The Praxis of Alain Badiou (jointly edited with P. Ashton and A.J. Bartlett, 2006), Black River (with H. Johnson, 2007) and The Work of Giorgio Agamben (jointly edited with N. Heron and A. Murray, 2008). With C. Dodds and A. Nash, he is the creator of several online art works, notably Babelswarm (2008) and Autoscopia (2009). Deepti Gangavane is Head, Department of Philosophy, Fergusson College, Pune. Her publications include several academic papers and the following books: Dialogues of Reasonableness (1995) and Feminism in Search of an Identity: The Indian Context (jointly edited with M. Kelkar, 2005). She has been publishing a series of articles on ‘Milestones in European Philosophy’ in the Marathi journal Kelyane Bhashantar since January 2007. Russell Grigg teaches Philosophy and Psychoanalysis at Deakin University (Australia), practices psychoanalysis and is a founding member and current President of the Lacan Circle of Melbourne. He completed

About the Editor and Contributors  271

his PhD in the Department of Psychoanalysis founded by Jacques Lacan at the University of Paris VIII (Vincennes) where he also worked as a lecturer. He attended Lacan’s seminars and has translated two of them: The Psychoses (1997) and The Other Side of Psychoanalysis (2006). He has collaborated on the first complete translation of Lacan’s Ecrits (with B. Fink and H. Fink, 2002). His recent publications include Lacan, Language and Philosophy (2008). He is currently engaged in research on psychosis, creativity and language. Rohini Hensman is a researcher, writer and activist who lives in London and Mumbai. She holds a PhD from the University of Amsterdam, Netherlands. Her publications include the following: My Life is One Long Struggle: Women, Work, Organisation and Struggle (with S. Gothoskar and N. Chaturvedi, 1982), Beyond Multinationalism: Management Policy and Bargaining Relationships in International Companies (with J. Banaji, 1990), To Do Something Beautiful (a novel, 1990), Effects of Recent Political Disturbances in Sri Lanka on Women and Children: Implications for Women under Stress (1992), Journey without a Destination: Is There a Solution for Sri Lankan Refugees? (1993), Playing Lions and Tigers (a novel, 2004). Jayant Lele is Professor Emeritus in the Departments of Political Studies, Sociology and Global Development Studies at Queen’s University at Kingston in Canada. He holds a PhD in Development Sociology from Cornell University. He has served as the President of the Canadian Association of South Asian Studies, as also of the Shastri Indo-Canadian Institute in New Delhi. His numerous publications include the following books: Tradition and Modernity in Bhakti Movements (edited, 1981), Elite Pluralism and Class Rule (1981), Language and Society (with R. Singh, 1989), State and Society in India (edited with R. Vora, 1990), Explorations in Indian Sociolinguistics (with R. Singh and P. Dasgupta, 1995), Hindutva: The Emergence of the Right (1995), Unravelling the Asian Miracle (edited with K. Ofori-Yeboah, 1996), Asia: Who Pays for Growth? (edited with W. Tettey, 1996), Democracy and Civil Society in Asia, Volumes 1 and 2 (edited with F. Quadir, 2004). Sanjay Palshikar is Associate Professor at the Department of Political Science, University of Hyderabad. He has previously taught at the Centre for Political Studies, Jawaharlal Nehru University. He is currently a Fellow at the Indian Institute of Advanced Study, Shimla, where he is engaged

272  Interdisciplinary Perspectives in Political Theory in a research project on the modern Indian interpretations of the Gita. He has published several articles which include the following: ‘Virtue, Vice and the Origins of Militant Nationalist Thought in Western India’, in V.K. Mehta and Thomas Pantham (eds), Political Ideas in Modern India (2006) and ‘Political Thought in Maharashtra (1850–1950)’, in D.P. Chattopadhyaya and Sabyasachi Bhattacharya (eds), Development of Modern Indian Thought and the Social Sciences (2007). Kannamma Raman is Associate Professor at the Department of Civics and Politics, University of Mumbai. Her teaching and research interests cover the fields of human rights, political theory and public policy. Her current research is focused on intellectual property rights with special reference to the pharmaceutical sector and traditional medicine. She is also involved in developing online courses in human rights. Her publications include a number of articles and monographs, as well as the book Revitalising Indian Democracy (jointly edited with N.B. Mody and L. D’Silva, 2001). Syed A. Sayeed is Professor of Philosophy, Department of Arts, Aesthetics and Comparative Philosophy at the English and Foreign Languages University, Hyderabad. He holds a PhD from the Indian Institute of Technology, Kanpur. He has taught Philosophy at the Aligarh Muslim University and the University of Hyderabad. In 2000 he was at the Liverpool University (UK) as a recipient of the Charles Wallace Trust Visiting Fellowship. His publications include a book Knowledge and Reality: Towards a Nonreductionistic View (1990) and about 20 articles in scholarly periodicals like the Journal of the Indian Council of Philosophical Research and the Indian Philosophical Quarterly. His areas of interest include contemporary European thought and philosophy of social sciences. Shardool Thakur teaches English at the Fergusson College, Pune. His research interests encompass contemporary critical theory, international relations and instructional design. His MPhil thesis at the University of Pune was on ‘George Orwell’s 1984: An Early Twenty-First Century Perspective after Foucault, Arendt, Agamben, and Abu Ghraib–Guantanamo Bay’. He is currently doing doctoral research on ‘The Depiction of Religious Fundamentalism in Select Literary Texts’ at the English and Foreign Languages University, Hyderabad. In 2009, he visited the Technical University, Dresden (Germany) through an Exchange Programme.

About the Editor and Contributors  273

Prakash Sarangi is Professor, Department of Political Science at the University of Hyderabad. He is currently a Visiting Professor and Senior Fellow at the Southern Methodist University, Dallas, Texas (USA). A PhD from the University of Rochester, he has held visiting assignments at the following universities: University of Wisconsin, Madison and University of Illinois, Chicago in USA; University of Heidelberg, Germany; Uppsala University, Sweden and Deakin University, Australia. He has authored Political Exchange and Public Policy: A Cross-National Analysis (1990) and Liberal Theories of State: Contemporary Perspectives (1996) and has jointly edited (with Hans Lofgren) Politics and Culture of Globalisation: India and Australia (2009).