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Scanlon writes (p. 213):

I am interested only in maintaining the negative thesis that whatever these crimes involve, it has to be
something more than merely the communication of persuasive reasons for action (or perhaps some special
circumstances, such as diminished capacity of the person persuaded).
Amdur attacks this negative thesis on two counts: first, he argues (p. 295) that it flies in the face of our
intuitions about moral responsibility legal responsibility being understood as an extension thereof
and second, he attempts to show (p.298) that Scanlons ideas are inconsistent.
Here are two sentences from Amdurs quotations of Scanlon which I believe to be critical:
First: The contribution to the genesis of his action made by the act of expression is, so to speak, superseded
by the agents own judgment.
Second: An autonomous person must apply to these tasks his own canons of rationality, and must
recognize the need to defend his beliefs and decisions in accordance with these canons.
Lets first examine how far Amdurs intuition (p.295) about Smiths responsibility would extend.
Would it extend to the case where Smith had written a pamphlet advocating bank-robbing and Jones
read it? What if he had written not a pamphlet but an academic book? What if he had written in another
century, another culture and Jones simply happened to come across his work in a library and found his
ideology sensible enough to adopt? What if he had written an epic poem with a bank robber as the hero
and Jones decided he wanted to be that hero? What if he hadnt directly mentioned bank-robbing at all,
but simply expressed an ideology that to Jones seemed to justify/necessitate bank-robbing? What if hed
explicitly mentioned he was personally against bank-robbing but Jones thought he was simply refusing
to commit to his own (very convincing) ideas for fear of retribution? Its clear that if we go on in this
way, this intuition is reduced to the idea or rather, the fact, because I doubt anyone could deny this
that the external world can influence our thoughts in ways we cannot always control precisely, and that
a major part of this influence is exerted by words. In the language of physics, we would say that human
minds were coupled systems, influencing and being influenced by each other through acts of
But then where does that leave Scanlonian autonomy? Shall we say that because our minds are not
isolated systems, because words from outside our skulls can give rise to thoughts within them, we
cannot really ever have autonomy of thought by extension, of anything at all? And where does this
compounding of responsibility for words or actions down a causal chain of agents end? Must
Gutenberg take responsibility for everything anyone ever communicated through the medium of print?
If Whitman knows that his poems [will not] do good only, they will do just as much evil, perhaps more,
is it incumbent upon him not to publish them? Is there any space at all for disclaimers in this world? I
dont think even Amdur would go so far as to say that. His problem seems to be that if autonomy does
exist, then Scanlon is completely discounting the autonomy involved in the act of convincing and
where there is autonomy there must be responsibility. Scanlon would counter that by saying that Amdur
is discounting the autonomy involved in the act of being convinced an autonomous agent takes
responsibility for being convinced hence they must be prepared to defend their beliefs. If someone
else can convince them to abandon a belief, it means they were not prepared to defend that belief
against that particular argument, and insofar as they were unprepared, they were by definition not
autonomous either.
But this seems to be an impasse. By this sort of argument, we can arbitrarily declare any aspect of
human existence the province of autonomy and start holding anyone responsible for anything, and
then say they are not autonomous if they cannot fulfill that responsibility. Can there be any dialogue on
this? Lets look at Amdurs second beef with Scanlon. He wants to know why the superseding
argument would not apply to the nerve gas example if people have such perfect autonomy of belief as
Scanlon says, how is giving them a justification for doing something any different from giving them the
tools to do it? Arent we just enabling them to do it in both cases?
This is where I think Scanlons defense argument would come into the picture. In the nerve gas case,
the autonomous agents who already want to do it do not have the responsibility of resisting the
temptation to kill people. They want to kill people, period. If the inventor does not bear this in mind,
nobody will. The inventor must know or naturally assume this what other purpose could be served by
communicating the formula? Hence it is common knowledge that the layer of autonomy that might
separate the speaker from the act does not exist in this case. Scanlon is not arguing that the agent is
somehow non-autonomous in the nerve gas case, hes saying that because the agents mind is firmly
made up on the moral question quite independently of the act of expression, and because the act of
expression does not seek to engage with the agents beliefs or decisions at all, there is no longer any
question of judgment on their part. In other words, we can now replace the agent with a MoralBot that
operates under the rule: if possible, use nerve gas to kill people, if not, do nothing. The autonomy of the
inventor lies in deciding which of these if-conditions should hold something that the agent cannot
possibly be autonomous about, and that therefore cannot be superseded by the agents judgment. The
contribution to the agents state of mind made by the knowledge that killing people is now easy is
morally trivial that is, it involves absolutely no revaluation of beliefs and no new decisions. There
is no challenge to the agents autonomy, and thus no need for the agent to defend their beliefs.
The agent and the inventor are autonomous in completely different spheres (each of them acts like an
input to an AND gate) and the combined effect of both exercises of autonomy determines whether the
act is performed. If the agent has already thrown the switch of moral decision, the question is reduced
to a single decision on the part of the inventor. One could similarly argue that Jones will rob a bank if
(Smith makes a good argument) AND (Jones accepts it). But that is a misrepresentation; there is only
one input or enabler here: Joness belief. And only one agent can throw a switch to alter that. All
other inputs are essentially contestations of that input attempts to alter it in some way.
A rational argument is a situation in which ones autonomy of belief is directly threatened. If we are to
take Scanlons definition at face value, being prepared to defend [] is essential to the maintenance of
autonomy. Hence Scanlonian autonomy can only be empirically verified when it is threatened the test
of whether what is threatened is contained in [], the province of autonomy, is whether the threat
provokes a strong enough defense. Nor does this defense necessarily have to be put up in the form of a
counter-argument or a physical or legal struggle; it could simply be a stubborn refusal to believe or
decide to do what one is being convinced to believe or do. In other words, just because one loses a
rational argument, it does not mean one will believe whatever absurd conclusion one was forced to
concede. If that were true, one could be replaced by a MoralBot (albeit a rather more sophisticated one)
programmed with the rules of rational argument. The reason it is important for Scanlon that the agent
should defend themselves in accordance with [the canons of rationality] is not that these canons of
rationality are the sole arbiters of what the agent believes and decides, it is that anything that goes
against them is censored by the agents brain. In other words, Scanlonian rationality is not a positive
rationality where the agent will believe everything that is in accordance with it, it is a negative
rationality that will destroy the agents beliefs if they are shown to contradict it. It is to avoid this
internal destruction that the agent must be prepared to defend the beliefs (or to alter ones canons of
rationality to make those beliefs defensible in accordance with them; that is what Scanlon means by his
own canons of rationality) that is, purely out of a practical consideration. There is no cognitive law
against holding unprovable beliefs only against holding contradictory beliefs nor can another person
have any say in which unprovable beliefs an autonomous agent will hold (having a say here means
being able to make an autonomous contribution to as the citizens of a democracy have a say in who
gets elected; there is no further authority that can supersede an electoral majority in the positive
sense, though in the negative sense the ineligibility of the candidate may do so).
It is precisely because there is no way to prove an empirical truth purely through rational argument
(or a moral/political truth through legislation it is in this sense that this argument is applicable to
political philosophy) that Scanlonian autonomy can exist. There is no way, for instance, to argue against
the belief that robbing banks is wrong in itself if Jones can come up with no better argument, he has
this to hide behind. As Ive stated above, though, what matters is not whether Jones can win the
argument but whether he can defend this belief to himself after hearing Smiths arguments defend
them, that is, from the rational part of his brain that says, Smith is right, you should rob a bank because
not robbing banks goes against something you believe in and must defend through your actions.
This, then, would be Scanlons answer to Amdurs first point: while the idea of autonomy does not
rest on a bucket theory, it does rest on a theory of exclusivity: if I am autonomous about
something, you cannot be autonomous about the same thing. In this case, the thing is Joness belief.
Without Joness refusal to defend his beliefs, or surrender, Smith cannot through rational argument get
him to believe or decide anything (although he may do it by other methods, such as employing his
charisma, great voice modulation, superior grammar, apparent personal commitment to the issue etc.
and it is for these that he might be praised or blamed, as well as for the decision to
challenge/threaten Joness autonomy on this point rather than some other). Smith cannot possibly know
what effect his arguments will have on Jones, and intuitively it seems unlikely that he could get Jones
to do anything simply by arguing his case well. It is in regard to those things that he cannot get Jones to
believe/do no matter how well he argues that Joness autonomy is most evident. Scanlons implicit
argument is that it is natural for us to make decisions like whether to rob a bank autonomously since
crimes are directly connected with our place in society, and thus for us there is something personal at
stake that must be defended. This is why our beliefs and decisions naturally align themselves to
defend such aspects of our lives and thus the task of defending these aspects is reduced to defending
our beliefs and decisions from verbal assaults. And if we refuse to defend these beliefs, it is this willing
refusal that supersedes all external moral directives including the speakers directive to believe
something that contradicts the abandoned belief. Smiths autonomy, therefore, is not in the act of
convincing even if Jones ends up convinced, but in the act of attempting to convince (a sentiment
the Bhagavad Gita might approve of that we cannot <verb>, we can only attempt to <verb>). This act
may make it likelier that Jones will be convinced; it may force Jones to rethink his morality but it by no
means takes the final call on the question; that is something only Joness autonomous mind can do, and
can do despite anything Smith may say.
In this answer, Ill consider only the schedule attached to the ordinance which lists the actual
restrictions and not the rest of the ordinance which discusses the ways in which they may be enforced.
Provisions will refer to the items of this schedule.
Since most of the provisions of the ordinance only explicitly ban activities that violate either the
Fundamental Rights or the dignity of a person, there are few that could count as a violation of freedom
of speech but those that do in my view are as follows, in the order in which they strike me as
(2) This seems to be the clearest violation, for obvious reasons. If someone genuinely believes they are
performing miracles, and if people around them believe it too, why should they be prevented from
displaying and propagating them, and conducting business transactions around them, provided nobody
else is being harmed by their doing so?
11 (a) Is the state now taking it upon itself to regulate the erotic choices of its citizens?
(5) Theres a fine line between this and other provisions like (8). I dont think the consequences of this
one are so terrible as to warrant suppression altogether. Theres a difference between preventing
someone from getting medical treatment and inspiring some kind of generalized fear in them; the
former should probably be prohibited because it has unacceptable consequences, but I cant see any
good reason for separating the latter from other activities that inspire fear of a particular person or
group. Still, Ill discuss all the provisions in the next part of this answer.
First Ill list the main arguments for freedom of speech that I know of from HUL 253:
1. Mills argument from truth
a. Autonomy-based justifications for protecting rational persuasion (limitation on state
b. Consequentialist justifications resting on finding better alternatives to suppression
more speech, marketplace of ideas
2. Free speech is good in itself (self-fulfilment)
3. Democracy requires that everyones voice be heard, no matter what it says
4. State intervention is likely to be biased and suppress more than necessary for political ends
It seems to me that (3) and (4) are not really applicable in this case, since there is no obvious connection
between black magic and Indian politics. As an act of expression, black magic is more or less limited to
communicating statements concerning specific people (the magician, his clients or his victims, or
supernatural beings) without any wider justification and therefore by its nature cannot have any direct
political implications.
However, (1) and (2) are both, I think, applicable here. Its a bit of a stretch to argue that (2) applies
since the only direct consequences of the acts of expression involved in black magic seem to involve the
production of negative states of mind (in the victims), but if we look a little closer, its obvious that the
production of positive states of mind (in the clients) is inseparable from this (and in this regard 11(a)
sounds very much like a victimless crime, though it may not always be). In other words, it appears that
black magic creates a kind of emotional economy, integrating emotions like terror, envy, desire etc.
and things like life, liberty and personal dignity with the actual financial economy. Insofar as the people
who are part of this economy choose to be part of it and to engage in the transactions it makes possible,
they cannot only be thought of as victims. That is, the same person may at different times be both a
client and a victim, being harmed by this economy but also benefiting from it. If participation in the
emotional economy of black magic is considered as a whole not simply as a collection of harms it
must be granted that it is an aspect of self-fulfilment just as much as the financial economy is.
This argument does also justify things like hate speech as an aspect of self-fulfilment though only to
the extent that this self-fulfilment does not have unacceptable consequences. Further, if these things
are to be understood as social/emotional economies they must be regulated in the same way as the
financial economy for instance, a breach of contract should be understood as a violation of the terms
and conditions under which people participate in the economy, even if such a contract is never made
explicit. This is why it does not apply to (9), (10) and 11(b) these are obvious examples of cases where
a contractual obligation is not honored, independently of any metaphysical or emotional understanding
of the forces involved.
But the argument from truth is, I believe, the main argument against the provisions mentioned. It is not
so much that irreparable harm would be done to the pursuit of truth if belief in the supernatural were
discarded as that we must be very careful about why we discard it, so as not to discard certain
epistemological methods along with it that may be useful in other ways. While it may be obvious to the
state that black magic is mere superstition, this is contingent on a rationalistic metaphysics. The
consequentialist argument would imply that the state cannot legitimately reserve the right to enforce a
metaphysical view on its citizens since if this were granted, it would also grant the state the right to
ban/outlaw all religious practices, a good portion of secular literature and most of the internet leaving
rationality to be held as a dead dogma. (It has been extensively argued over the past two centuries that
the consequences of this can be infinitely worse than the consequences of any other kind of dead
dogma.) The autonomy-based argument the stronger one here would imply that since metaphysical
doctrines cannot be conclusively verified, what people decide to believe or are persuaded to believe
must be left up to them. (This is why the autonomy-based argument is understood, in my analysis, as
part of the argument from truth, and not instead as part of the argument from self-fulfilment.)
To return to the three provisions that appear to violate freedom of speech, the wording of the act implies
that practitioners of black magic are necessarily conmen who do not themselves believe in the practices
they engage in, and are doing so only with a view to financial or social gain. But this may not always be
the case. There are many forms of metaphysics which, while they cannot be endorsed by the state, are
nevertheless quite practical for societal purposes. One example of such an alternate metaphysics that
is current in India is the theory of karma that the world is a self-regulating system where every agent
eventually gets their just deserts. But it would be preposterous if the judiciary were to be dissolved on
the grounds that artificial punishment constituted an interference with this natural balance. The
state cannot endorse the metaphysics of karma because it undermines its justification. But this does not
mean it can make it a law that nobody can believe in the theory of karma.
Similarly, it may be that these practitioners actually believe they are communicating with supernatural
powers on behalf of their clients. What might be the reason for the persistence of such a belief, in the
practitioners mind or in society? Presumably that it has never been conclusively disproved to their
satisfaction. In that case, even if the state has tried all the awareness campaigns, education and
dissemination of information possible, if it has made public the results of studies on the origins of belief
in black magic, if, in short, it has given its citizens access to a free market of ideas, and they still persist
in believing in black magic, the state has absolutely no right to tell them that they cannot believe in it. If
without taking such measures the state enforces its rationalistic beliefs, that is even less acceptable,
because it denies legitimacy to the experience of the individual and to social mechanisms of belief
construction. The ultimate test of truth, after all in the Millian spirit is not whether it satisfies
established truth conditions but whether human beings (ideally, immortal human beings on an eternal
mission to investigate the truth of a particular belief) judge it to be truth. It may very well be that by
their canons of rationality, all these believers are perfectly persuaded that black magic is a real thing
and then it would be a violation of their liberty for the state to insist that it is not without persuading
them otherwise. It may also be and this is a kind of consequentialism that there is at least some
objective truth, social or psychological truth, encoded in the complex system of beliefs surrounding
these practices, even if it is not what people think it is.
But other than this part autonomy-based, part consequentialist argument against suppression, there are
two further arguments in favour of it one consequentialist and one autonomy-based.
The consequentialist argument is as follows: perhaps people are not being rationally persuaded. Perhaps
belief creates fear, and fear belief, so that the cycle of superstition is self-sustaining. In this case, there
does not seem to be any way other than suppression to break this cycle, nor is there any good argument
against breaking the cycle, for a self-sustaining cycle is not a product of human agency, and breaking it
cannot thus be a violation of anyones autonomy, which takes us directly into the realm of
consequentialism. The ordinance should then be understood as a form of psychiatric intervention on a
large scale. This, however, would require people who held these beliefs to seek help that is, to
individually recognize that they did not wish to continue holding those beliefs but were unable to break
free of them due to the influence of society on parts of their brains over which they had no control. The
intervention would then be a way of securing positive autonomy for them. If there is reason to believe
that a large-scale intervention would be welcomed by all of the believers (except the practitioners,
who have a vested interest) that is, it would receive unanimous consent if asked, then such
suppression would be in the public interest. There is, however, a qualification: if suppression alone
would not be sufficient to rid society of the belief, then there cannot be any justification for it. If there is
reason to believe that it would simply leave people without a redressal mechanism for their
supernatural problems (e.g. hearing voices psychiatrists can be expensive) which would persist
independently of whether there were any practitioners of black magic around, this consequentialist
argument for suppression breaks down.
The other possibility is that people hold these beliefs not because their experience supports them but
because they do not have the resources to conduct investigations to disprove them. They may hold them
as a form of Pascals wager if black magic isnt real, then all they lose is money/dignity/a bit of liberty,
all things they know they are giving up, can autonomously choose to give up, in return for which they
may gain unlimited power but if it is, the consequences of not believing in it are unknown and could be
unspeakably worse. In this case, they would believe in it because others believed in it because there
would be no way to decide whether someone was a real magician other than that there were many
people who believed in them. Belief in this case would be non-autonomous. (Pascals wager, in fact, is
the quintessential example of how metaphysical belief can be firmly linked to society and the individual
made non-autonomous with respect to it.) However, there cannot be a law against living by Pascals
wager either. What there can be a law against is arbitrarily altering the options available to those who
do live by Pascals wager since this is a form of direct social control and could have unacceptable
consequences. If it can be proven that the construction of the wager in question is so widespread that it
can be understood objectively as a social fact, and that this construction is being manipulated in such a
way that it is violating peoples autonomy arbitrarily (it can do this because of the infinities in the payoff
matrix of the wager), then suppression can be justified. If, on the other hand, people can implement
some kind of system of verification that does not only depend on the beliefs of others (and that is
therefore not, in the final analysis, self-referential, for in this case the beliefs of others depend on ones
beliefs) or of checks and balances that can limit the authority of the magician over them, then I cannot
see that the state has a right to interfere further.
It is worth noting that consequentialist arguments can only be invoked after autonomy arguments have
been exhausted. In moral philosophy, the right to choose ones metaphysics comes before the right to be
free of fear or the right to personal liberty or even the right to life. One cannot, for instance, morally
justify preventing Jain monks from starving to death on the grounds that suicide is a crime. The reason is
that consequentialism depends on an objective evaluation of the consequences, which can never happen
so long as the consequences in question involve a violation of one persons autonomy but not anothers
it would simply provoke a defensive response from the violated party, causing a breakdown of
negotiation. Thus there can be no more suppression of speech than is necessitated by the violation of
someone elses autonomy since any more would be an indefensible violation of the speakers as well as
the listeners autonomy.
[I also think this may be where Rawls is coming from when he refuses to have his agents reason
probabilistically, and instead goes, apparently arbitrarily, for the worst-case scenario avoidance
argument. The possibility of having ones autonomy violated when the veil is lifted introduces infinities
into the amount of happiness or sadness one may have in that world, and the worst-case avoidance is a
way of removing the need for that calculus of infinities so far as possible.]
This discussion dispenses with (2) and (5), and also further with all those provisions of the ordinance
that define crimes against life, liberty and personal dignity that are justified on the pretext of performing
black magic as a separate class of crimes for which the punishment may be more severe than if those
things were done on some other pretext namely, (1), (3), (4), (6), (7) and (12). These crimes have to be
defined separately because they are instances of using Pascals wager as a means of control.
11(a) is an interesting provision. I dont quite understand why it is in the ordinance at all. It may be that
(for instance) the requirement of being faithful to ones spouse for seven consecutive births causes the
devotee to believe that it is their duty to engage in sexual relations with the practitioner or perhaps
the devotee may be told that they had made some other promise in a past life, and they must now make
good on it. But apart from this, I cannot think of any other scenario that may necessitate such a
provision. Even if the practitioner says this and the devotee believes them, I do not know of any rule
stating that one must have sexual relations with a person who was ones spouse/lover in a past life.
Furthermore, a strong reason why this might be an unjustifiable provision is that it is not at all
uncommon for lovers to be absolutely convinced in the face of all rational evidence that they share some
profound mystical connection, which is often explained metaphysically in terms of a connection from a
past life. It would be quite unfair, I think, to prevent them from expressing this view if they genuinely
believe in it. But it could be that this will only be the case in a tiny minority of situations, and for the
most part the assertion of such connections will be used by the practitioner to sexually exploit
devotees. Although it seems to me that in this case the sexual autonomy of the devotee should
supersede anything the practitioner might say, I think if the promise of a past life is invoked, it does
to some extent have the effect of changing the situation, since then the devotees refusal to believe the
practitioner may be seen as a justification for moral outrage on the practitioners part. (The difference
between this and normal lovers outrage is that everyone knows normal lovers are insane, so their moral
emotions do not receive social sanction.) This is an example of how the invocation of alternate
metaphysics can have a direct bearing on social relations, thus serving as a form of social control that,
while perhaps not as extreme as the Pascals wager form of control, can nevertheless shift the balance of
moral-social emotions. Since the construction of sexual autonomy especially female autonomy is not
very strong in Indian society, and sexual relations can often be forms of social contestation more than
personal explorations of eroticism, this kind of control can also justify state intervention on
consequentialist grounds (regulation of the economy) even if nobodys autonomy is being violated.
To sum up, there are three main questions which would need to be answered before deciding whether
suppression is justified (brackets specify the expertise required to answer them):
1. Do there exist any social facts, or objective social constructions, that can be/are converted into
forms of Pascals wager by the practitioners of black magic? (sociological)
2. Does the practice cause those who have no truck with it to feel psychologically threatened, and
is this effect intended? (Is it impossible to opt out?) Does the practice depend on this effect?
That is, does it feed off autonomy violations for instance, is its legitimacy increased by the
indignities listed in (1)? (sociological and anthropological)
3. Do those who believe in it (non-practitioners) rationalize it to the extent that it would be
impossible to convince them through more speech that it is an irrational practice?
Furthermore, do they see this belief as a personal choice? (psychological)
If the answers to 1 and 2 are Yes, and to 3 No, Id say the ordinance is justifiable. If any of the answers
are different, then I cannot be certain.