Delhi gang-rape: Some answers – 2

As I write this, the victim in the Delhi gang-rape case is no more. Despite the best efforts of the state to provide medical help.

The protests will continue and demands for capital punishment for rape will intensify. These demands are little more than an instinctive reaction. The first thing that came to my mind when I read about this case was: I would like to kill the perpetrators. Combine that thought with the inability to really do anything of the sort and the Indian habit of seeking a state solution for every problem, and the result is a demand for state action: Stricter laws, more policing, capital punishment.

Consider this report from Tehelka. It is titled: The rapes will go on. Along with some commentary, it describes the views held by senior police officers in and around Delhi. Most of the police officers believe that of the cases that are reported, most are not really rapes at all. That in itself, may not be surprising. Somewhere in the report there is a parenthetical reference to studies indicating that for every reported case of rape, more than 50 go unreported. Most genuine cases are perhaps never reported and the once that are fall through, given the attitude of the police officers. What is noteworthy (though not surprising) about the report is that the police primarily blame the dressing and behavior of the victims for the rise in rapes.

It is all too easy to demand things of the state. In this case, it might even seem right to demand that the state provide a safer environment. Crime is after all, a state subject. But the question that the protesters seem to be missing is: Can the state really do anything about it? Can it ensure that the police have the same outlook on our modern lifestyles that we do? Can it punish the perpetrators in cases that are never reported? Can it remove the stigma attached to rape?

But the state can indeed attempt to do the things the protesters want it to do. The state can create new laws (which will never be implemented, just as existing ones aren’t), it can allocate more funds to recruit more police (who will drink Chai at the corner shops and collect bribes from hapless non-rapists), it can declare capital punishment for rapes (further reducing the already dismal conviction rate). And clueless politicians who have no idea how to deal with the protests will indeed be too happy to to oblige.

Is this what we want?

Look below the surface and it is clear that the rising number of rapes (and other crimes against women) are social and cultural issues. The state is entirely powerless to do anything about these underlying issues.

Autonomous political institutions

In a post about Swaminathan Aiyer’s recent article in The Times of India about “freeing the police”, Aristotle the geek makes a very good point:

All coercive capabilities of the state must always be under civilian political control.

Aiyer’s article reminds me of Fareed Zakaria’s book “The Future of Freedom – Illiberal Democracy at Home & Abroad” where Zakaria advocates the creation of autonomous regulatory entities not subject to political control. Both Zakaria and Aiyer seem to want to temper the consequences of a run-away democracy. There is a slight difference in context though. Aiyer writes about the police which is a legitimate state activity whereas Zakaria writes about areas where the government should have no role at all.

Regardless of the difference in context, both Zakaria and Aiyer are wrong. Both advocate the creation of an unaccountable bureaucracy. Both seem to forget that there is indeed an independent government entity not directly subject to political control – the judiciary. The judiciary can be independent because it deals with issues that are not political. In a properly limited and functional democracy, the judiciary should be sufficient to address any misuse of power by the agents of the state. The solution to a runaway democracy cannot be an unaccountable bureaucracy. Both need to be abolished. And that leads me to the point I want to make. Abolishing the ability of a democratic government to run out of control can only work in a culture that respects individual rights.

Political change is necessarily preceded by cultural change.

Aiyer’s article shows that despite all his claims to be a liberal, he does not really understand liberty at all. Anyone who thinks liberty can be achieved by political means fundamentally misunderstands it.

NYC mosque and symbolism

Ari Armstrong has a thorough post on the controversial NYC mosque. Here are some good excerpts

…the building of Cordoba House represents a symbolic victory for America’s enemies, and blocking it would constitute a symbolic victory for America’s self-defense.
The question, then, is whether a symbolic display may ever properly be proscribed legally. My initial reaction is to say no; the First Amendment properly protects symbolic expression, and only actions (including active provocation of violence) properly may be criminalized.

I submit that it is precisely this obsessive agonizing over Cordoba House that reflects a posture of defeat and surrender. Why would people spend one minute of their time trying to get rid of some damned prayer center, when they could spend that minute urging the United States government to take decisive action against America’s true enemies? What exactly are our priorities, here?

As disgusting as the idea of a mosque being built in the vicinity of what was once the WTC is, it remains a symbolic victory for Islamists. Leonard Peikoff – in his podcast (transcript) – and Amy Peikoff – in her post – seem to suggest that this symbol represents an existential threat to America. Had someone other than Peikoff taken this position, I would have ignored it. But on more thought, there is something to it. As a rational person driven by logic rather than emotion, I do not attach much significance to symbols. But the same certainly cannot be said about the radical or even moderate Islamists. If a symbol can inspire radical Islamists to further violence – and a mosque on property that was destroyed by Islamic terrorists is certainly a powerful symbol – does it still remain “just a symbol”? I hold that the state cannot legitimately curtail a merely symbolic expression because a symbolic expression is an expression of ideas and not of action. Does that principle still hold when one deals with enemies who do not make that distinction? I am not really sure.

Here is an excerpt from Steve Simpson’s post on NoodleFood.

There’s an odd sort of contradiction at the heart of the argument in favor of cajoling a zoning board into denying the land owners the right to build. It consists in saying that the government will not use legitimate anti-terror laws to prosecute the owners if they support terrorism, but it will use illegitimate, non-objective laws and processes to accomplish the same ends. But if officials lack the will to use legitimate means to go after terrorists, why would they possess the will to use illegitimate means? Supporting this effort seems destined to fail, in which case those who have done so have thrown away principle for nothing at all. And if government is willing to go after the terrorists, why would we ever support using illegitimate means when we could support using legitimate means? Trusting the government with arbitrary power is always a bad bet.

It is clear that trying to prevent the construction of the mosque by taking recourse to bad zoning laws is a bad idea. But I don’t think that is the point of contention. The real question is – Is this really an issue of the right to property or the right to free expression? As Peikoff notes in his podcast, property rights are contextual. They presume a context of a mostly rational, freedom respecting society. It would be impossible to apply them in a society where people do not respect even the right to life. When one is dealing with precisely such enemies, does the context remain unchanged?

Democracy and anarchism

Aristotle The Geek has written a partial response to the debate on my previous post. He writes

What is an “unfree” market? Let me ask the question the other way round – what is a “free” market? It is a market in which the State does not interfere (the only “interference” would be of the enforcement of contracts kind). Political/ economic freedom is always defined in terms of the State, not in terms of non-State actors. The latter don’t lay any claim to morality when they engage in fraud, theft, murder, confinement etc. It is the State which does that. So, an “unfree” market would be one with State interference.

At this point I would ask “What is the State?” Ayn Rand defines government (which I will use interchangeably with State) as
A government is an institution that holds the exclusive power to enforce certain rules of social conduct in a given geographical area. (emphasis in original)

I will modify it to make one aspect of it more explicit
A government is an institution whose exclusive power to enforce certain rules of social conduct in a given geographical area is generally accepted.

Compare that to a modern democracy. Modern democracies are characterized by the lack of acceptance of any fundamental rule for social conduct. Any rule or law (no matter how fundamental) passed by a legislature may be repealed, completely modified or contradicted in its next session. Read this very illuminating article about how Oliver Wendell Holmes’ dissent in a famous case has served to create a legal orthodoxy that believes that the American constitution does not contain any fundamental principle. In a modern democracy, there is no inviolate fundamental principle that the state or its members are bound by. This means that the modern state lacks an identity. The state is a collective and the identity of a collective is determined by the identity of its constituents. But the modern democratic state is highly disparate. The only thing that is generally accepted is that there are no fixed rules.

The state in a modern democracy is an ever-changing group of men who enforce certain ever-changing rules of social conduct in a given geographical area.

This is about as close to anarchism as I think (and hope) we will ever get. Anarcho-capitalists such as Rothbard (based on some quotes by ATG) write of competing (while also cooperating with each other) private defence agencies. If these competing-yet-cooperating private agencies bind themselves by fundamental principles and refuse to allow other private agencies that do not accept those principles, then they together form an entity which is remarkably similar to a state. If they do not bind themselves by any fundamental principles but still cooperate among themselves, then they are remarkably similar to a modern democracy – a disparate set of power wielders that manages to avoid open warfare.

The only difference between anarchism and modern democracy is the issue of the size of government. But the size of the government is an inessential characteristic. What is essential is the principles that make up its identity. Modern democracies are constantly increasing the size of government and at the same time destroying its identity. But no entity can last long without an identity, especially large ones. A large government devoid of any fundamental identity is just waiting for some autocratic group to seize it (something that seems to be beginning in the U.S.). Anarchists want to do away with government altogether. But that is something that can never happen. Anarchy must degenerate into smaller states (waiting to be conquered by a more powerful state intent on conquest) or into a democracy for the reasons in the paragraph above.

Anarchism

I was following the comments on this post and wrote a response that turned out to be long enough for a post. So here goes:

Here is my principled (not utilitarian) argument [against anarchism].
To implement the non-aggression principle, people must agree on what constitutes aggression, not just at a philosophical level but at a more detailed level. For example, firing a gun in the air is not aggression but firing it close to someone’s residence is. Even if I am a champion shot and the bullets do not hit anyone. That might not be the best example, but the point is that some of these distinctions are not philosophical but merely a matter of convention or reasonable definition. If such distinctions are not made beforehand, then the non-aggression principle is meaningless. Establishing the process by which people can agree to such distictions is what politics is (should be) all about. Saying that each person must form his own answer and never commit to any answer (committing would mean agreeing to be bound by it) is an abdication of politics. As you mentioned, politics only arises in a social context and therefore must involve social processes. Because these distinctions depend on convention (by necessity, not for any lack of good philosophy), there is a need for legislation – a process by which people can agree to and modify (when necessary) conventions.
So the answer to Rothbard’s question “how does the state get the authority to govern?” is:
By the delegation of those who choose to form a state. Ideally, the state would be formed by those who subscribe (philosophically) to the non-agression principle. If someone does not recognize the authority of the state, he is not harmed by the state. Unless he breaks its institutionalized definitions of aggression. As long as the state does not break its own definitions of aggression and as long as the definitions are not philosophically wrong, the mere existence of a state is not aggression against any individual.

As I wrote above, anarchism is an abdication of politics. It is merely a moral position that states: man should not submit to be bound by legislation. The answer to that position is merely “Don’t submit”. The funny thing is: I dont know of any sane anarchists who follow that moral position. A seemingly political way of framing anarchism would be: “In an ideal society, no organization of people should have a monopoly over the exercise of force.” But that is a thorougly contradictory position. What sort of monopoly is being referred to here? Metaphysical or existential? If it is metaphysical, then we already have anarchy, since no state can have a metaphysical monopoly on force (or on anything else). If it is an existential (or de facto) monopoly that the anarchist wants to abolish (not the right word, the right word would be ‘wish away’), then the anarchist is claiming that other people should not grant their consent to a de-facto monopoly on force. But then, that is a moral position.

Psychologically, an advocate of anarchism is saying:
I refuse to be bound by <i>any</i> institutionalized principles. Even if I agree with those principles today. I do not wish to take responsibility for my beliefs. The desire for anarchism is not a desire for freedom from aggression – it is a desire for freedom from responsibility.

Civil Service and The Constitution (Part 2)

Part 1 of this series concluded with

“The Indian constitution grants parliament almost unlimited powers to enact laws. It is this that allows politicians and thus the bureaucracy to get away with anything. It is this that breeds corruption.”

This post seeks to elaborate. A constitution is a document that establishes the structure, procedures, powers and duties of a government by means of principles. A constitution is the standard to which enacted laws must confirm and by which they are to be interpreted. For a constitution to be meaningful, it must be unambiguous and consistent. For a constitution to be successful, its principles must be valid.

Here are some articles from the Indian constitution (available here and here)

15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.
(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

(3) Nothing in this article shall prevent the State from making any special provision for women and children.

(4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.

16. Equality of opportunity in matters of public employment
(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.

23. Prohibition of traffic in human beings and forced labour
(1) Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.
(2) Nothing in this article shall prevent the State from imposing compulsory service for public purposes, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them.

31A. Saving of laws providing for acquisition of estates, etc.—
(1) Notwithstanding anything contained in article 13, no law providing for—
(a) the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights, or
(b) the taking over of the management of any property by the State for a limited period either in the public interest or in order to secure the proper management of the property

(2) In this article,—
(a) the expression ‘‘estate’’ shall, in relation to any local area, have the same meaning as that expression or its local equivalent has in the existing law relating to land tenures in force in that area and shall also include—
(i) any jagir, inam or muafi or other similar grant and in the States of Tamil Nadu and Kerala, any janmam right;
(ii) any land held under ryotwari settlement

The Indian Constitution is for the most part not a codification of principles at all, but an attempt to solve some of the social problems (such as untouchability, feudal land holdings, extreme backwardness in most sections of society etc) at the time it was written. Most of the articles follow a pattern of expressing a principle and then laying out conditions under which it can be violated by the state (Also see Ergo’s post as an example of this). This mess of contradictory and concrete-bound articles institutionalizes an approach of rampant pragmatism to governance. It institutionalizes the idea that there are no absolute rights, no absolute principles and no absolute limits to the actions governments can take. The Indian constitution is not a document that protects individuals from the misuse of power by the state. It is a document that protects the state from any legal challenges that individuals might raise (Perhaps the most common phrase in the constitution is “Nothing in this article shall prevent the State…“)

Part 3 will examine the relation between civil service and the constitution.

%d bloggers like this: