VLS Jurisprudence I (May-June 2020)

Subject: Jurisprudence – An Introduction to Legal and Political Philosophy
Instructor: Sidharth Chauhan (Assistant Professor, NALSAR Hyderabad)

Timeline: May-June 2020
Outline of Coverage
Weekly Unit Session Topics for Coverage Instructor's Remarks /

Plan Reading from Textbook
Unit 1: Session 1 Approaches to Legal Philosophy -Tom Campbell, 'Legal Studies' (pp.
Ideological 226-253).
Frameworks Session 2 Conservative Political Thought -Anthony Quinton & Anne Norton,
'Conservatism' (pp. 285-311).
Session 3 Strands of Liberalism -Alan Ryan, 'Liberalism' (pp. 360-
382).
Session 4 Marxist Thought -Barry Hindess, 'Marxism' (pp. 383-
402).
Session 5 Feminism in Law and Politics -Jane Mansbridge & Susan Moller
Okin, 'Feminism' (pp. 332-359).
Unit 2: Session 6 Analyzing Political Authority - Patrick Dunleavy, 'The State' (pp.
State, Civil 793-803).
Society & Session 7 What is the 'Social Contract'? -Jean Hampton, 'Contract and Consent'
Rights (pp. 478-492).
Session 8 Conceptualizing Civil Society - Rainer Forst, 'Civil Society' (pp. 452-
462) & Richard Flathman, 'Legitimacy'
(pp. 678-684).
Session 9 Constitutionalism and the Rule - C.L. Ten, 'Constitutionalism and the
of Law Rule of Law' (pp. 493-502).
Session 10 Concept of Rights - Jeremy Waldron, 'Rights' (pp. 745-
754) & Charles R. Beitz, 'Human
Rights' (pp. 628-637).
Unit 3: Session 11 Theories of Equality -Richard Arneson, 'Equality' (pp. 593-
Equality & 611).
Community Session 12 Distributive Justice -Peter Vallentyne, 'Distributive Justice'
(pp. 548-562) & Alan Hamlin,
'Welfare' (pp. 852-864).
Session 13 Can There be Historical Justice? -Martha Minow, 'Historical Justice'
(pp. 621-627) & Phillipe V. Parijs,
'International Distributive Justice' (pp.
638-652).
Session 14 Religious Toleration - R. Scott Appleby, 'Fundamentalisms'
(pp. 403-413) & Stephen Macedo,
'Toleration' (pp. 813-820).
Session 15 Multiculturalism -Will Kymlicka, 'Community and
Multiculturalism' (pp. 463-477).
The soft copy of the following textbook will be circulated among the VLS students in advance. They
are required to read the relevant chapters listed in the above table.
• Robert E. Goodin, Philip Pettit & Thomas Pogge (eds.), A Companion to Contemporary
nd
Political Philosophy, 2 edn. (Blackwell Publishing, 2007).
Apart from this textbook, soft copies of the following books are being circulated among the VLS
students for self-study and further reading:
• Austin Sarat (ed.), The Blackwell Companion to Law and Society (Blackwell Publishing, 2004).
nd
• Suri Ratnapala, Jurisprudence, 2 edn. (Cambridge University Press, 2013).
• Raymond Wacks, Philosophy of Law: A Very Short Introduction (Oxford University Press,
2006).
Jurisprudence – An Introduction to Legal and Political Philosophy
Instructor: Sidharth Chauhan (Assistant Professor, NALSAR Hyderabad).
Session 1: Why Should We Study Legal Philosophy?
This course will introduce you to the philosophy of law, which will serve as a foundation for much of
your coursework at law school. It will equip you with the conceptual tools needed for engaging in legal
reasoning and providing holistic analysis of official legal sources such as legislation, judgments and
administrative rules. During this course, we will examine several ideas and texts that will help you to
think about legal processes and controversies with considerable depth. More significantly, we hope that
you will become comfortable with the notion of arriving at multiple answers to a given social or legal
problem and evaluating them from different points of view.
It is useful to begin by reflecting on what the concept of ‘law’ means to each one of us? If it is a tool of
social control, how is it distinct from other systems of social control such as organised religion, market
institutions or governmental structures? Does our understanding of law depend on cultural
particularities or is there a universal conception of law? What are the basic features of a modern legal
system? What are the acknowledged sources of law in the same?
In a general sense, the field of legal philosophy (or ‘jurisprudence’ as it is also called) principally asks
two branches of questions.
• Firstly, what is the nature of law? Is it derived from a determinable set of authoritative sources
or is there an inherent fluidity in what serves as the basis of law?
• Secondly, what methods should be adopted to interpret and apply the presumptive sources of
law when disputes arise as to their meaning? The answers to these questions have evolved
distinctively in different legal traditions. Apart from formal processes of legal change such as
the enactment of legislation, the framing of administrative rules and the pronouncement of
judicial decisions, there are other factors that contribute to the same such as customs,
institutional structures and scholarship.
We will concentrate on the major currents in the scholarship which addresses the two questions
outlined above.
The ‘natural law tradition’ suggests that the validity of official sources of law should be derived from
norms established by higher sources, which could range from religious beliefs to humanist moral
reasoning and ethics. With the evolution of liberal democratic institutions, there was considerable
disputation of this view since it seems to enable a high degree of subjectivity in addressing specific
disputes.
In response, some other scholars framed the position of ‘legal positivism’ which describes official
sources of law as part of a self-validating system that ultimately relies on ideas of political authority.
This approach situates the formal study of law as an autonomous discipline and pursues the objectives
of clarity and predictability in the eyes of the participants in a legal system. There are internal
disagreements among those who subscribe to these two positions.
Legal scholarship in the 20th century emphasized a third strand, namely ‘Legal Realism’, which treats
official sources of law as derivatives of human behaviour. In this view, disputes about the meaning of
rules cannot be addressed without understanding the background and motivations of the individuals (as
well as institutions) who are involved in creating, interpreting and enforcing them. As opposed to the
legal positivists, this approach firmly situates the study of law in the larger realm of the humanities and
the social sciences. Contemporary legal scholarship has extended the key ideas of ‘Legal Realism’ to
highlight problems that arise when legitimate interests are excluded while creating law as well as when
the interpretation and enforcement of laws have a discriminatory impact. We can trace the development
of distinctive realist approaches to legal philosophy under the framework of ‘Critical Legal Studies’
(CLS) which has further sub-divisions such as ‘Feminist Legal Theory’, ‘Critical Race Studies’, ‘Law
and Poverty’ among others. While the 'Economic Analysis of Law' is also viewed as an outgrowth of
the realist approach to Jurisprudence, its foundational assumptions are at cross-ends with the 'Critical
Legal Studies' Movement. It privileges the pursuit of efficiency in the design of legal institutions and
seeks to interpret rules so as to incentivise compliance by the various stakeholders in a legal system.
The 'Law and Society' Movement is yet another extension of the realist framework in legal studies.
This approach situates the analysis of rule-making, adjudication and enforcement in the backdrop of
empirical research focused on various social institutions.
Students can perhaps refer to the following list to understand the distinctive approaches to the study of
legal philosophy:
Cluster 1:
The 'Natural Law Tradition' emphasizes pre-existing higher sources of Law, such as religious beliefs or
humanist moral values which ultimately shape the content of customs, legislations, administrative
orders/rules and judgments. In other words, this approach has two distinctive strands, namely:-
(a) 'Theological/Religious' approach
(b) 'Humanist/Secular' approach
Cluster 2:
'Legal Positivism', also described as the 'Formalist' approach which stresses upon the 'Blackletter'
tradition in legal analysis and interpretation. This entails the treatment of law as an autonomous
discipline which has its own internal logic for identifying, classifying and interpreting sources of law.
However, the academic work in this area can be differentiated into two separate strands:
(a) Exclusive Legal Positivism: An approach that insists on a strong separation between moral
judgments and legal analysis. John Austin (The Province of Jurisprudence Determined, 1867) is largely
viewed as a proponent of this approach who was responding to the problems of subjectivity in the
Natural Law Tradition.
(b) Inclusive Legal Positivism: An approach that views legal analysis and interpretation as a distinctive
field of knowledge, but acknowledges that it requires insights drawn from other disciplines such as
sociology, economics, political philosophy and intellectual history to name a few. H.L.A. Hart (The
Concept of Law, 1961) is credited for framing this approach and setting the agenda for modern studies
in jurisprudence. Examining his scholarly exchanges with Lon Fuller (The Morality of Law, 1964) and
Ronald Dworkin (Law's Empire, 1986) are vital to understand the progression of this field.
Cluster 3:
'Legal Realism' entails that we study jurisprudence in an interdisciplinary manner. The basic insight is
that legal analysis and interpretation does not have an internally coherent structure and that more
importance should be given to the actual social consequences of the operation of laws. One way to
understand this approach is to invoke the distinction between 'Law in the Books' and 'Law in Action'
which was stressed upon by Roscoe Pound. The early movement in this approach was towards a
sociological approach to legal studies, but over time it has diversified into separate branches. Some of
the prominent ones include:
(a) Sociological Movement in Law / 'Law and Society' Approach
(b) Economic Analysis of Law
(c) Marxist Critique of Legal Positivism
(d) Feminist Approach to Jurisprudence
(e) 'Critical Legal Studies', which foregrounds the voices and interests of groups facing marginalisation
and exclusion based on gender/religion/caste/language/sexual orientation/disability among other
markers.
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Session 2: What do we mean by Conservatism?
Key elements of Edmund Burke's Ideas (Reflections on the Revolution in France, 1789)
• Attitudes towards Change, disapproval towards sudden, large-scale disruptions
• Skeptical of Abstract and Normative Political Knowledge, Preference for Practical approach to
Politics grounded in accumulated experiences
• Emphasis on organic ties and inter-connectedness (distinctive national cultures as opposed to
universal claims about human nature)
Conservative attitudes towards religion / family / property / nationalism

How do conservatives view core constitutional values such as liberty, equality, fraternity?
What is the difference between socio-cultural, economic and political ideas of conservatism? How do
these strands relate to legal conservatism? Is legal conservatism the same as a formalist or positivist
approach to the study of jurisprudence? What are the problems in adopting a conservative approach to
the interpretation of legal sources such as customs, legislations, administrative orders and judicial
decisions? Does legal practice prefer a textualist approach towards interpretation as opposed to a
purposive approach?
How should we situate Social-Cultural Conservatism?
Emphasis on tradition and continuity in social institutions (family, religion, workplace, political
institutions) so as to maintain stability
Radical or Sudden changes in social institutions can lead to instability, resentment and continuing
conflict --- Progressive Changes must be brought in a gradual and incremental fashion, with each step
being carefully considered
How should we situate Economic Conservatism?
State should play a limited role in regulating markets, respecting the initiatives and wisdom of citizens
and business entities (Classical Economics)
vs.
State should play an interventionist role in the economy to address socio-economic inequalities
(Welfare State Liberalism, Democratic Socialism)
How should we situate Political Conservatism?
Anarchism-------Marxism/Socialism-----------Liberalism---------Conservatism---------Authoritarianism
----------------------------------------------------------------------------------- (Fascism/Totalitarianism/Elitism)
Where do we locate Legal Conservatism?
Textualism (Blackletter Tradition), formalism seeks to ensure certainty and precision in the
interpretation of legal sources. Concrete meanings enable accurate predictions about outcomes as well
as consistency in future decision-making
vs.
Pragmatic Approach, that seeks to balance stability with justice, often based on 'rule-scepticism'.
Hence, it becomes essential to explore uncertainties and ambiguities in rule-making, enforcement and
adjudication.
Example for Discussion:

Should Courts intervene in religious practices that reflect discrimination based on caste and gender?
Consider the examples of Temple Entry Cases. Are there different strands of conservatism at play in
these controversies? If constitutional rights and precedents are taken as authoritative sources, then legal
conservatism will negate social-cultural conservatism in the specific context of these cases.
We must learn to distinguish between the Conservative-Liberal binary in terms of:

• application to the subject-matter of a legal dispute
• application to interpretive methods.
Should Judges lean in favour of Legal Conservatism? Or Should they be guided by other ideological
frameworks which help us to understand legal interpretation in light of social, economic and political
realities?
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Session 3: What do we mean by Liberalism?
At the normative level, 'Liberalism' prioritizes the recognition, protection and expansion of personal
freedoms, be it in the context of political institutions, socio-cultural institutions or economic
institutions. Here we may refer to personal freedoms or liberties as constantly evolving ideas rather
than static ones. Some commentators see Liberalism or 'Progressivism' as the polar opposite of
'Conservatism' which is an approach that invokes the importance of tradition and continuity in ordering
our communities.
However, it would be a conceptual mistake to use this 'Liberal-Conservative' binary in a simplistic

manner. An empirical (or descriptive) understanding of politics often shows intersections between
supposedly 'liberal' and 'conservative' positions. For instance, centre-right political parties often
combine preferences for socio-cultural conservatism (e..g. Non-intervention with religious practices)
with arguments for economic liberalism (e.g. promotion of private business and investment). On the
other hand, 'socialist' or left-of-centre political parties often combine preferences for progressive social
policies (e.g. restrictions on discriminatory customs) with economic policies that require considerable
state intervention in order to address inequalities in the possession of property or acquisition of income.
To take some extreme examples, authoritarian governments have been known to be business-friendly or
reform-minded while democratic governments often pursue welfarist or protectionist policies.
How should we situate Political Liberalism?
Anarchism----- argues for unlimited personal autonomy, where an individual decides on the reasons for
acknowledging the authority of political/social/economic institutions
Marxism/Socialism---- These approaches argue for considerable State intervention in order to address
the existing socio-economic inequalities in a given polity. 'Marxism' is deeply critical of the institutions
of electoral democracy, organised religion and private property, viewing them as bastions of the
dominant property-owning classes. It positions itself against political liberalism for its support of
capitalist structures and hence argues for the reconstruction of the State in a manner that prioritizes the
interests of the working classes. 'Democratic Socialism' is different since it tries to arrive at an
intermediate position between Marxism and Liberalism, by seeking to integrate policies of economic
redistribution (of material resources and opportunities) within the working of democratically elected
institutions.
Liberalism--- Central Ideas discussed below:

1) Respect for Personal Autonomy through Primacy of Democratic Institutions,
2) Separation Between Religion and Politics
3) Regulation of Markets so as to ensure development and prosperity
Conservatism------ Central Ideas outlined in previous session

• Preference for continuity of older institutions, deeply skeptical of radical disruptions
• Puts the invocation of practical experience in politics over abstract principles to explain
political interests or actions,
• Prioritizes the interests of the collective entity (family, organised religion, nation state) over
those of the individual
Authoritarianism ------Arguments for concentration of political power

(Fascism/Military Dictatorship/Theocracy/Elitism)
Key elements of Liberalism (as framed by Alan Ryan)
• Anti-Absolutist Strand (Respect for Personal Autonomy): This is premised on the distrust of the
concentration of power in a few hands. This idea captures the shift in power from the monarchy
towards parliamentary democracy in Late-Medieval Europe. It also forms the core of Modern
Constitutionalism by shaping principles such as the separation of powers (between the
Executive, Legislature and Judiciary) and federalism (distribution of powers among different
levels of government). Liberal Democracy is also premised on the idea of giving voice to the
citizens through participation in voting, electoral representations and different forms of public
engagement. One can also locate the justifications for codifying individual and group rights in
this strand of thinking.
• Anti-Theocratic Strand (Secularism): Insists on a separation between political power and
organised religion. While Western Secularism emerged from a long-power struggle between the
Clergy and Royal Authority, the implantation of this idea in many other nations took place
through colonial rule. Hence, there are arguments about 'cultural relativism' and how western-
style secularism may not be suited to deeply religious societies. In Indian Constitutional Law,
the argument has been framed as one between (a) 'No Concern' Secularism that seeks to erase
religious identity from the public sphere and (b) 'Equal Respect' Secularism that seeks to
preserve and build respect for political authority through the public recognition of religious
differences and fair treatment towards them.
Points for reflection: What are the inherent problems with mixing religion and politics? Does it pave
the way for religious majoritarianism or even a theocratic political order? How do religious beliefs
shape attitudes towards voting, representation and deference to political authority?
• Regulation of Capital (Economic Liberalism): Ideas of Economic Liberalism have developed

through different stages in modern history:-
th
• Classical Economics (Late 18 century): Adam Smith argued that the State should play a
limited role in regulating markets, respecting the initiatives and wisdom of citizens and business
entities. His theories were invoked to seek the reduction of tariffs in international maritime
trade as well as the easing of licensing conditions for domestic traders
th
• Welfare State Liberalism (Mid 20 century): The Great Depression of the 1930s and the
economic hardships resulting from the Second World War, gave credence to arguments that the
State should play an interventionist role in the economy to address socio-economic inequalities
(Key intellectual figures include John Maynard Keynes, John Rawls and Amartya Sen).
th
• Neo-Liberalism (Late 20 century): Emerged as a response to the expansion of Communism as
well as Welfare State Liberalism. The key idea is that the State should gradually reduce its role
in economic regulation, thereby encouraging private entrepreneurs to drive innovation and
productivity in different sectors.
(Key intellectual figures include Friedrich Hayek, Milton Friedman and Jagdish Bhagwati)
Points for reflection: How do we locate ideas of economic liberalism in Indian politics? Can we clearly
identify groups and formations that support welfarist redistribution policies as opposed to others who
are closer to the Neo-Liberal position which favours minimal state intervention in economic affairs?
Examples for discussion:

-What is the ideological/philosophical basis for progressive taxation?
-Why should the State legislate on the issue of minimum wages for workers?
-Why should the State have the power to acquire land from private parties?
These examples will be discussed more closely when we reach Sessions 11 & 12 which will be devoted
to the 'Theories of Equality' and 'Distributive Justice' respectively. At that stage, we will primarily
discuss the ideas of John Rawls ('Difference Principle') and Amartya Sen ('Capabilities Approach').
----------------------------------------------------------------------------------------------------------------------------

Session 4: How do we understand Marxist Political Thought?
'Marxism' as a theoretical formulation is deeply critical of the:

(a) working of the institutions of electoral democracy,
(b) influence of organised religion in shaping social attitudes
(c) the conceptualisation of 'private property' and its defence in classical economics,
As an intellectual tradition, Marxism looks at history through the lens of a continuous class-struggle,
primarily between property-owners and the working classes. It presupposes the problem of 'economic
determinism', that is the nature of economic organisation in a given society forms the base around
which social and political institutions are designed. It positioned itself both against Conservatism as
well as the early articulations of political liberalism. The critique of 'Conservatism' was based on the
undue importance given to customary knowledge and religious beliefs, most of which reinforced
patterns of class-based domination. The critique of 'Liberalism' was based on the latter's support of
'classical economics' (which favoured respect for economic initiatives and enterprise) and hence argued
for the reconstruction of governmental structures in a manner that prioritizes the interests of the
working classes.
Such an assertion would require the development of a 'class consciousness' among those who provided
labour under deeply exploitative conditions. In simple terms, the Industrial Revolution had created
systems of economic production where the surplus value created by workers was largely appropriated
by the capital-owners, without adequate care being given to their immediate needs. The rise of factory-
based production had created conditions where workers were increasingly alienated from both the fruits
of their own labour as well as the overall economic development and prosperity that was promised by
'classical economics'. While the organisation of workers and farmers' interests through trade unions and
cooperatives are seen as necessary steps to increase their bargaining power within capitalist societies,
the ultimate objective is to replace the existing governmental structures and create a 'dictatorship of the
proletariat'.
According to Barry Hindess, the most familiar recurrent features in the Marxist Ideology are:
• A Sociological Theory of History and social change in which ideas of class struggle (primarily
between capital and labour) and the development of economic relations play a major explanatory role;
• the claim that Marxism offers a critical analysis of society which also defines a socialist political
project – ‘the philosophers have only interpreted the world’, Marx asserted in his Theses on Feuerbach,
‘the point however, is to change it’, Marx (1845).
• an insistence that, unlike many competing ideas of socialism, both Marxist theory and its political
project are grounded in contemporary scientific knowledge as opposed to other ideological frameworks
which emphasize knowledge from sources such as religious beliefs (Conservatives) and abstract moral
philosophy (Liberals).
'Communism' as practiced by the Soviet Union (1917-1991) drew inspiration from the Marxist
objectives of improving the socio-economic conditions for the working classes, but also tended towards
authoritarianism in the functioning of its political organisation. This was most evident during the tenure
of Joseph Stalin (1929-1953) who used the state machinery to suppress dissidents as well as rivals
within the Bolshevik Party. A famous example being the assassination of Leon Trotsky (who was once
a close friend of Vladimir Lenin) in Mexico in 1940. After the Second World War, the Soviet Union
directly influenced the political orders of several Eastern European nations, using both military force
(Czechoslovakia and Hungary being prominent examples) and economic power. The growth of
Communism in other locations such as Latin America and China had its own organic roots.
th
'Democratic Socialism' as it has evolved during the latter half of the 20 century (primarily in Western
European nations such as France, Germany and Italy) is different since it tries to arrive at an
intermediate position between Marxism and Liberalism. It seeks to pursue policies of economic
redistribution (of material resources and opportunities) within the working of democratically elected
institutions. In this sense, the social democrats of today have departed from a key element of Marxist
thought which saw elected institutions as being inherently dominated by the capital-owning classes.
Even in Indian politics, one can see a clear distinction between political parties that have positioned
themselves around 'Socialist' ideas (think of the Janata-Parivar parties that exist today such as SP, JDU,
RJD, BJD, JDS) as opposed to 'Marxist' ones (such as CPI, CPI-M). Among the Marxist parties, there
has been a fragmentation between the 'Parliamentary Left' and the 'Insurrectionary Left'.
Influence of Marxist Thought on Academic Inquiry

1) Critical Theory (Frankfurt School): Examines the functioning of governments, markets and civil
society institutions as part of an integrated 'public sphere', where more emphasis is being placed
on 'communicative rationality' as opposed to older justifications for acknowledging the
authority of political, economic and social institutions. In this sense, the working of 'civil
society' institutions becomes very significant as they perform the dual functions of (a)
regulating the behaviour of individuals through norm-setting, and (b) laying down the criteria
for judging the legitimacy of governmental action, especially by enabling independent public
discussion and scrutiny of the performance of public officials. The most well-known scholar
who has articulated this approach is Jurgen Habermas.
2) Marxist 'Anti-Humanism': Skepticism towards Empirical Approaches (Based on Scientific
Observation/Description of Human Behaviour) of knowledge-production which are usually
preferred by the Modern Liberal Tradition; Preference for theorisation of political, social and
economic institutions based on fully formed ideological positions, such as the idea that
individuals can transcend their existing socio-economic location and re-formulate their own
consciousness. This approach was advocated by Louis Althusser in the 1960s.
Point for reflection: Think about the 'Ideas v. Experience' debate in the humanities and the social
sciences. For example, anti-caste scholars and activists in India argue that applying Marxist analysis of
social relations based on the cateogory of 'class' is inadequate to understand the complexity of caste-
based discrimination in our society. For starters, caste-based hierarchies exhibit a problem of 'graded
inequality' between thousands of groups as opposed to a binary opposition between capital and labour.
Furthermore, Marxist parties are criticized for not giving leadership opportunities to persons from
historically marginalised caste backgrounds.
3) Analytical Marxism: An approach that suggests the use of the Marxist intellectual frame to
study contemporary political, economic and social relations. For example, Marxist ideas such as
'economic determinism' and 'social alienation' can be used to explain structural forms of
discrimination and exclusion in contemporary societies – both at the national and institutional
level.
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Session 5: What is meant by Feminist Stances in Politics and Law?
Unlike Conservatism, Liberalism and Marxism, Feminism cannot be described as a distinctive

ideological framework bearing a clear chronological development. Instead, it can be described as a
stance or position that can be found in intersection with several other ideologies and cultural contexts.
At the core, Feminism entails a line of thought that seeks to eliminate male-domination in different
spheres of life, be it in the working of political, economic and social institutions or the supposedly
private sphere of the family/household. Feminist social science and political philosophy begins with
three central questions: (i) How did male domination arise?, (ii) Why was it so widely accepted? and
(iii) What are its consequences? How, until recently, have men managed with a semblance of
legitimacy to exclude women from formal politics in almost every tribe, state and civilization on the
globe? And what are the current implications of this history for women, for human relations, for
philosophy and for politics?
According to Jane Mansbridge, three common factors can be found in the different varieties of
Feminist thought :-
1) First, feminism privileges 'lived experiences' of women as well as other subordinated groups (as
opposed to Liberals who tend to prioritise abstract theorisation about human behaviour). A
direct report of the way one perceives one’s own experience has great weight with feminists
trying to make sense of their world. Much of feminist theory is thus inductive, proceeding from
particular observations towards general inferences. This is in contrast to deductive reasoning
which begins with general principles and proceed towards particular conclusions.
2) Second, feminism is not easily systematized. Its experiential plurality, proceeding from different
experiences differently perceived, constantly undoes attempts to derive a full theory from a
single point, or make all pieces fit a coherent whole.
3) Third, feminism makes the personal political. Real experiences of gender domination cut across
the formal lines that divide the public sphere (government, market institutions, civil society
actors) from the private sphere (household/family/intimate relationships). They require for their
explanation a political theory that assumes the interpenetration of these spheres.
In the past few decades it has become especially clear how deeply the feminism of all individuals rests
on their own cultural, ethnic, religious, class, sexual and individual pasts and projected futures. In most
cultures, women in dominant groups are likely to articulate feminist principles first. For example, the
demand for voting rights for women in India (during the freedom struggle) were initially made by
Upper-Caste Women members of the Congress Party who also happened to be highly educated. In
comparison, the socially significant demand for 'equal pay for equal work' found its way into Labour
Laws several decades after Independence. Such examples often lead to the criticism that demands for
action based on Feminist thought are affected by a 'class-bias'. However, the same can be said for any
of the other significant ideological frameworks which we have examined so far.
Questioning the Public-Private Divide

As discussed above, Feminist thought strongly rejects the premise of the 'Public-Private' divide which
had informed the development of liberal political thought for several centuries. According to Carole
Pateman (The Sexual Contract, 1988) the public sphere has been largely imagined as the domain of
men who act on 'reasoned self-interest' as opposed to the private spaces of the family where women are
wrongly stereotyped as acting on their emotional impulses. For example, ancient conceptions of
citizenship were often tied to masculine characteristics such as the ability to physically fight for one's
country and the possession of property which would yield revenue for the State. On the other hand,
feminine characteristics such as the responsibilities of childcare and management of the household
(which are far more fundamental to sustain a society) were not placed at the same pedestal. Even in the
Late-Medieval period, the early arguments for liberal constitutionalism spoke about the need for
distributing power in the public sphere (through recognition of rights, limiting powers of elected
institutions) but did not do much to address patterns of male-domination (patriarchy) that
fundamentally shape the relationships within a household.
Feminists have pushed back against this dichotomy by arguing that an individual's capacity for political
participation is shaped or nurtured by the environment at home. Hence, the pursuit of constitutionally
entrenched ideals (such as liberty, equality and fraternity) will be meaningless if political and legal
processes did not redress the existing patterns of gender-based inequality that pervade our private lives.
In the Indian context, while the demand for the right to vote was a initial step in this direction,
subsequent legal interventions include the codification of family laws (on aspects such as marriage,
succession, inheritance) so as to remove/mitigate discriminatory customs as well as legislative
proscriptions against Child Marriage, Dowry and Domestic Violence among others. One can also think
of more recent changes such as a longer period of maternity leave (extended from 3 months to 6
months) and the proposals for introducing 'paternity leave' so as to confront stereotypes about who is
responsible for childcare. The more difficult questions relate to issues involving violent behaviour such
as the incidence of 'marital rape' and 'child sexual abuse'. While State intervention can be defended on
grounds of gender-justice, the practical problems of under-reporting (largely due to concerns about
social stigma and backlash against the victim) and the immediate threats of witness-intimidation and
destruction of evidence come to mind.
'Sameness', 'Difference' and 'Domination' in Rethinking Liberal Concepts
Feminists have taken three approaches to the issue of women’s differences from men.
 One approach, completely compatible with liberal theory, stresses the sameness of the
subordinate to the dominant group. This approach challenges the assumption that natural
differences should generate different spheres in life and work or different insights in philosophy.
Example: Think of gender-based discrimination in employment settings. Until the rise of the IT Sector,
Financial Services and Broadcast-Media since the 1990s, a female candidate was less likely to be hired
for a job that requires late-night shifts and constant traveling. Consider the implications of the decision
in Anuj Garg v. NCT Delhi (2008) which examined a provision in the Punjab Excise Act, 1916 that
prohibited women from working in establishments that sold alcohol.
 A second approach, building on modal gender differences in the experience of intimate
connection, challenges the central assumption in liberal political theory that the individual is
essentially separate from, and in conflict with, others.
Example: Can the stereotypical feminine characteristics be elevated in public life (government,
markets, civil society) so as to inculcate an 'ethics of care' as opposed to masculine characteristics that
entail cutthroat-competition? For example, how do we view female leaders whose policies are more
responsive to the needs of the vulnerable sections of society?
 A third approach, revealing the roots of political and economic domination in the most private
of sexual relations, produces feminist reconceptualizations of liberal theory that focus on
domination.
Example: Can political obligations (duties owed by citizens to their government) be compared to the
ties within a marital relationship? How do we view the 'paternalism' exhibited in the behaviour of
public officials (legislators, civil servants and judges) in contrast to the position of a patriarch in the
family? How do ideas of 'dominance' and 'submission' play out in the working of organisational
hierarchies as part of different kinds of institutions? For instance, can we readily identify 'gendered
roles' in various professions?
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Session 6: Contractarian Approaches in Political Theory
How do we explain our deference to political authority in ordinary times? Do these reasons largely
have a moral character? Or should they be narrowly grounded in practical considerations? For the sake
of a structured discussion, moral reasons can be framed as those which entail the recognition of duties
owed to others. Practical reasons are those which primarily address one's understanding of self-interest
and then address the interests of others as a secondary matter. It would be useful to restate the
justifications that are usually offered to explain the acknowledgment of political authority in
democratic systems:
Contractarian Justifications
1. The authority ('right to rule') of an incumbent government is based on the consent of the people
(John Locke, Second Treatise on Government, 1697), where 'popular consent' is conflated with the
supremacy of elected institutions. According to Locke, individuals living in a benign 'state of nature' (as
opposed to Thomas Hobbes who described life in the 'state of nature' as 'nasty, brutish and short') still
face numerous inconveniences and obstructions in ensuring the collective protection of their life,
liberty and property. In short, individuals acting autonomously cannot create the public goods needed to
sustain a collective political existence and therefore need to enter into cooperative arrangements with
each other. Hence, citizens come together to form a pre-political entity known as 'civil society' which
is intended to create conditions of peaceful coexistence. As members of such a 'civil society', citizens
collectively confer executive powers on to the government, principally through elected institutions. The
government then exercises power over citizens, but is also morally bound to respect an overarching
framework of rights and duties. In this way, John Locke formulated the intellectual foundations of
modern liberal constitutionalism.
While there have been numerous criticisms mounted against the invocation of 'popular consent' in this
form, the procedural notions of democracy tend to go back to the same. These criticisms include the
following:-
(a) Support expressed at the time of periodic elections does not imply popular consent for all decisions
made by the chosen representatives. Very simply put, voters may change their minds or the underlying
circumstances may change dramatically.
(b)Voters should ideally have the opportunity to express their displeasure or disapproval of decisions
that disregard their interests and preferences; mere passivity cannot be conflated with popular consent.
Hence, the legitimacy of public institutions needs to be judged on a continuous basis. The existence of
a free press, institutionalized checks on executive powers and robust civil society institutions are
needed to actualize a substantive notion of democracy. Arguments for direct democracy measures (such
as referendums and voter's initiatives) are also based on this line of thinking.
(c) Some electoral systems based on the Plurality Rule (such as First-Past-the-Post System) create
'manufactured majorities' wherein disproportionate power is vested in successful political formations,
whereas comparable group interests are locked out of power owing to fragmentation in their respective
vote-shares. While this may be necessary in the interest of stability, it can deepen conflicts in highly
divided societies. Hence, it is important to restate the distinction between obligations towards the
nation-state and those owed to the government in power.
2. Another criticism directed against the consent tradition in liberal political thought is that it
overemphasizes the role of electoral representation. The processes of voting, representation and public
discussions by themselves may not substantially improve the conditions of citizens belonging to
weaker and marginalized sections in highly unequal societies. For political representation to be
effective in this regard, it needs to be closely tied to goals such as redistribution of economic resources
and meaningful changes in social attitudes. The principle of fairness (John Rawls, A Theory of Justice,
1971) ties the acknowledgment of political authority with the goal of distributive justice. This idea was
developed in order to legitimise the welfare function of modern liberal democracies. Participation in a
constitutional democracy is likened to a cooperative scheme, where citizens assume duties of
contributing to the success of the same since they have benefited from the efforts and contributions
made by other participants in the said scheme. Citizens would also have a self-interest in ensuring the
success of governmental efforts that protect them during times of vulnerability and distress. For
example, consider the argument for healthy individuals to regularly contribute to a publicly
administered health insurance scheme. Another instructive example would be that of employment
conditions that require employees to set aside a portion of their income towards pension funds.
In this sense, the duty to obey just institutions that seek to distribute benefits and burdens in a fair
manner seems to gain far more importance than periodic acts of political participation such as voting,
representation, agitation and other forms of public discussions. In formulating the 'Difference
Principle', Rawls speaks about the duty of obedience towards policies and institutions that seek to
protect the most disadvantaged sections of society. However, there are numerous objections mounted
against this moralistic account of a welfare state.
(a) Libertarians argue that the principle of fairness places undue restrictions on the personal liberties of
citizens, principally by curtailing their choices about how to deploy their own material resources and
efforts. (Critique of State Paternalism). They further argue that welfarist redistribution would have the
effect of discouraging individual initiatives and sometimes seek to deliver benefits that are not valued
in the first place (Robert Nozick, Anarchy, State and Utopia, 1974).
(b) Critical Social Theorists have also been quite critical of the principle of fairness. For instance,
Nancy Fraser (1994) famously argued that the emphasis on economic redistribution was inadequate to
understand the difficult questions thrown up by groups which have faced cultural subordination and
marginalisation at a structural level (e.g. discrimination based on caste, gender, race, religion, language,
sexual orientation, persons with disabilities). For example, can affirmative action programmes which
ensure representation for historically marginalised groups in higher education and public employment
really remedy the centuries of social stigma faced by them? Why would dominant groups assume a
duty of contribution which entails visible reductions in the resources and opportunities available to
them? To what extent can the pursuit of social justice rely on such ideals of self-affliction?
Practical Reasons for Obedience
- Empirically Grounded Reasons, namely those based on customs, common wisdom, popular opinions
and examples being followed by large groups of people. Their invocation is often described as the
'Bandwagon Effect' or shaping behaviour where one blindly follows the 'Herd'.
- Juristic Reasons, that is reasons derived from the opinion of experts or professionals, namely those
who possess specialist knowledge or those who have accumulated substantial experience in the relevant
subject.
- Purely Practical Considerations based on an individual's immediately available resources and

limitations. For instance, instinctive decisions are often made when there is limited time to act on a
complex problem.
Examples for Reflection: Do our reasons for obedience change considerably during exceptional times?
To what extent do we depart from the established justifications for acknowledging political authority
during armed conflicts, civil unrest and pandemics? In the context of the COVID-19 situation, let us
examine our responses to four sets of decisions made by elected governments in recent times:
(I) Imposition of a Nation-Wide Lockdown under the Disaster Management Act, 2005. While it is
being seen through a 'Lives v. Livelihood' prism, it also raises serious questions for the future of Indian
Federalism and Administrative Law.
(II) Late and Inadequate responses to the needs of informal sector workers in large cities, be it through
cash transfers, food provisions and transport facilities. Why have elected governments been unable to
protect the lives and interests of vulnerable citizens?
(III) Ordinances passed by State Governments in Uttar Pradesh, Madhya Pradesh and Rajasthan which
have suspended the operation of a large number of Labour Laws for a period of 3 years.
(IV) Insistence on the usage of the Arogya Setu App, despite concerns about its use for surveillance and
unauthorised data-mining.
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Session 7: Communitarian Approaches in Political Theory
Communitarian Justifications
1. Political Conservatism emphasizes the continuity of social institutions, be it the family, organised
religion or the nation-state. In this frame, the justification for political authority is closely linked to the
way in which a political community is imagined at the level of popular discourse. This approach often
tends to emphasize the need for uniformity, such as a common language, ethnicity, religion, culture or
history. When these commonalities do not exist empirically, efforts are made to create such conditions
through the use of political power as well as economic and cultural organization. In the most extreme
case, we may identify such an approach in countries that tend to be theocracies (where governmental
structures are dominated by religious bodies) or have governmental structures and laws that are
weighed in favour of religious, linguistic or ethnic majorities. In this view, the very fact of being born
into a designated political community creates obligations to abide by its social norms and rules created
by formal institutional structures.
2. In contrast to the ethno-nationalist idea outlined above, several scholars have tried to advance the
understanding of 'civic nationalism' as a presumptive basis for political authority. One of the most
famous accounts comes from Ronald Dworkin (Law's Empire, 1986) who argued that the contractarian
justifications (such as the invocation of 'tacit consent', principle of fairplay) were both inadequate or
unsuited to explain why citizens in modern nations obey the laws and directives issued by their
respective governments. He instead argued that a stronger basis for obedience lies in associative ties of
solidarity which need to be carefully nurtured in constitutional democracies. The authority of the
nation-state is derived from a careful mediation between the rights of individual citizens (based on
ideals of equality, liberty and fraternity) and the entrenched practices of the groups that they belong to.
This would mean that the nation-state both recognises and regulates other forms of associative
identities such as those based on religion, language, professions, kinship and the like. At times, the
State must use its morally grounded authority to resolve conflicts of justice, such as those that arise
when the entrenched practices of groups unduly restrict the core freedoms of citizens. Dworkin's
emphasis on associative ties of solidarity between citizens can be likened to Dr. B.R. Ambedkar's
discussions on the need for developing 'constitutional morality' in India (To be elaborated in Session 9).
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Session 8: Ideas of Constitutionalism
The idea of ‘constitutionalism’ encapsulates several objectives, namely those of structuring, enabling
and limiting the exercise of governmental power. A Constitution does not necessarily have to be in a
written form. As the history of the British Parliamentary system demonstrates, constitutionalism can
also evolve through conventions and yet provide a robust framework for curtailing the exercise of
executive, legislative and judicial power. On the other hand, the American Constitution drafted in the
th
late 18 century has proved to be the prototype for the rise of written constitutions, especially after the
end of the Second World War. The intention behind that was to set out an elaborate set of constraints
which would protect the rights of individuals and minorities in the face of arbitrary actions by the State.
In the context of liberal democracies, this also translates into a ‘paradox of precommitment’ that seeks
to prohibit elected majorities in the future from whittling away these constraints which are entrenched
at a particular point of time. It must also be remembered that formal constitutional arrangements can
persist outside the normative frame of liberal democracies. It is quite feasible for autocratic and
theocratic regimes to also have written constitutions, though there might be considerable uncertainty
about the place of these texts in structuring the actual exercise of political authority.
At the time of its framing, the Indian Constitution was conceived of as one that fell within the
epistemic framework of political liberalism. The dominant theoretical understanding in the postcolonial
context is that constitutional texts are created in the name of the people of the newly liberated nation. In
that sense, the legitimacy of the Indian Constitution is often linked to the Lockean idea of ‘tacit
consent’ which can be discerned from the conduct of citizens who voluntarily accept the authority of
the State in return for the protection of their individual rights. However, a preliminary inquiry into the
historical circumstances surrounding the framing process reveals that the Constituent Assembly was
itself chosen through a narrow right of franchise and performed its task during a time of immense
religious conflict and considerable uncertainty about the viability of the Union of India. This creates a
strong rebuttal to the inclusion of the Indian Constitution in the consent tradition of liberal political
thought.
Other readings suggest that the Indian Constitution should be read as a complicated set of compromises
which were arrived at between distinctive communities which continue to be divided on the grounds of
religion, race, caste, region and language among other markers. In this view, both the framing of the
Constitution as well as its endurance rests on the capacity of these communities to respect this
compromise rather than being contingent on its acceptance by individual citizens. In some instances,
protections need to be created for individuals so as to preserve their liberties against undue interference
by entrenched group practices. This contrast between ‘contractarian’ (individual-centric) and
‘communitarian’ (group-centric) explanations for political authority presents a useful analytical tool.
We must also be attentive to the organic processes that fed into the framing of the Indian Constitution.
For instance, many leading figures of the freedom struggle were active participants in the Constituent
Assembly Debates. The opinions and positions of several social and political formations found its way
into the text that was enacted on January 26, 1950. Granville Austin described the document as a
seamless web that pursued the principles of (i) ensuring national unity, (ii) enhancing democracy and
(iii) facilitating a social revolution. This multi-layered characterization takes us to the proposition about
rights and obligations. Think more carefully about the structure of fundamental rights that are
enumerated in Part III of the Indian Constitution (Article 12-36). The older ‘contractarian’ approach
pushes us to think about these rights primarily as a set of constraints that operate on the powers of
elected governments. On the other hand, the ‘communitarian’ approach requires us to think of these
rights as pragmatic choices made by distinctive communities in the hope that future generations will
adhere to them. Some others argue that rights are also included to give effect to policies that will bring
about meaningful socio-economic transformation. For example, why was it important to include
explicit anti-discrimination provisions (Article 15, 16, 17 and 18) and safeguards against exploitation
(Articles 23 and 24) in Part III whereas many other countries address these issues through ordinary
statutes?
We must develop a clearer understanding of what we mean by ‘fundamental rights’ and their
enforcement by asking the following questions:-
Are they 'fundamental' because they codify widely held moral beliefs about the preconditions for
peaceful coexistence in a given society? Is this comparable to the idea of 'inalienable human rights'
propounded by scholars such as John Locke and David Hume? Can we readily distinguish between the
theological and secularist foundations of the content of such rights?
Or are they framed as 'fundamental' in order to legitimize governmental actions taken to pursue
collective aspirations? In that sense, is the conception of fundamental rights limited by utilitarian
considerations? In other words, are rights deliberately structured in such a way that public policy and
law reflects the pursuit of the 'greatest good for the greatest number of people'?
Alternatively, are fundamental rights described as such merely to set out a language for self-assertion
that can also be treated as normative standards for a polity? For example, do rights reflect deeper moral
commitments that stand above utilitarian considerations and popular preferences? As Ronald Dworkin
had argued, do we agree with the formulation that 'rights trump utility'.
Do enumerated rights provide a clearer pathway for their enforcement by an independent judiciary?
After all, if a constitutional text has to be treated as a higher source of law, then it should lay down
some definitive standards that can be invoked to test the validity of ordinary legislation and
administrative decisions.
How do we locate liberal constitutionalism in H.L.A. Hart's formulation of a modern legal system?
Hart had argued that a modern legal system should have a multi-layered structure of rules, where
'primary rules' cover the direct enforcement of legal obligations on citizens. In comparison, 'secondary
rules' set out a higher-order framework that lays down the:
(a) Criteria for the recognition of 'primary rules' as valid within a legal system
(b) Processes that enable flexibility and change in the content of primary rules
(c) Mechanisms for adjudicating disputes about the content, interpretation and enforcement of these
primary rules
Point for Reflection: What happens when there are further disagreements about what counts as the
'secondary rule of recognition' within a legal system? What interpretive tools are available to us to
explore such ambiguities? For example, what was the rationale for formulating the 'Basic Structure'
doctrine in Indian Constitutional Law? Why was it important to limit parliamentary powers in some
respects?

Session 9: Justifications for Rights
The recognition and enforcement of fundamental rights on part of individuals or groups is correlated
with obligations placed on others, be it the State or other private parties. The older written constitutions
largely characterized fundamental rights as those which implicate obligations on part of the State. Some
of these obligations bore a negative character thereby implying duties of restraint on part of public
officials so that they would not interfere in the exercise of rights by citizens. Others entailed a positive
character and hence implied duties of facilitation and assistance in the exercise of rights. With the
passage of time, this conceptual distinction between the negative and positive character of rights has
broken down.
Another significant conceptual shift has occurred in what constitutes ‘State Action’ in the first place.
The reach of public functions and the nature of citizen-state interactions has changed considerably,
initially with the rise of the administrative state and consequently with economic globalization. More
and more functions that were identified as public responsibilities in a welfare state are now in the hands
of private players. Conversely, there are several activities which have historically been in private hands
but there are increasing demands for public accountability over them, often by way of judicial scrutiny.
In the Indian context, the judicial discourse has captured this shift in several ways. In the late 1970s and
early 1980s the Supreme Court started expanding the category of what constitutes an ‘agency or
instrumentality of the state’ under Article 12, primarily to protect the interests of employees in Public
Sector Undertakings (PSUs). With the passage of time, the discussion has turned to what should be the
definitive criteria for attributing a public character to an entity, since that would compel the latter to
respect and protect the enumerated fundamental rights. Should it rest on whether the entity is
substantially owned and controlled by the State (‘Structuralism’) or should the inquiry turn on whether
its functions are characterized as ‘public’ or ‘private’ (‘Functionalism’)?
It would also be beneficial to examine the most prominent remedies that are sought in litigation related
to the enforcement of fundamental rights. While Article 32 and 226 empower the Supreme Court of
India and the High Courts to issue writs in order to enforce fundamental rights, the same can be
litigated through appellate processes as well. This would be an opportune time to familiarize students
with some well-established concepts related to judicial review such as the presumption of constitutional
validity, the doctrine of eclipse, the waiver of rights, the doctrine of pith and substance, the doctrine of
severability and the principle of ‘res judicata’.
It should also be highlighted that some fundamental rights are directly applicable against private
parties. In other words, they are subject to horizontal application. Prominent among these are rights
directed against existing patterns of discrimination and exploitation such as Article 17 (Prohibition of
Untouchability), Article 18 (Abolition of Titles, except Military and Academic ones), Article 23
(Prohibition of Forced Labour) and Article 24 (Prohibition of Child Labour). Some obligations
pertaining to affirmative action in the educational sector have also been placed on privately funded
institutions by way of Article 15(5) and Article 21-A. The ambit of ‘personal liberty’ under Article 21
has also undergone considerable expansion so as to implicate the horizontal application of fundamental
rights, especially in the context of socio-economic rights.
Enumerated Rights
As opposed to the broader idea of liberty that serves as another legitimating ideal, Article 19 is an
example where some dimensions of personal liberty have been explicitly mentioned. At the time of the
framing, the freedoms of speech, assembly, association, movement, residence, property (removed from
Part III in 1978) and those of seeking a livelihood were largely characterized as significant for enabling
civic and political participation. Most of them were conceptualized as protections against arbitrary
actions by the State, perhaps deeply informed by the experiences of the framers, many of whom had
faced repression during the freedom struggle. They were also confined to ‘citizens’, which is an
expression that covers individuals in its legal sense in India and has been consciously not applied to
group entities such as corporations. However, soon after the enactment of the Constitution, the
Supreme Court read the freedom of speech broadly to protect press freedoms when some publications
were sought to be prohibited. The Government responded by amending the Constitution and inserted
grounds for placing reasonable restrictions on the exercise of these freedoms. Corresponding
restrictions were placed for the other neighbouring freedoms enumerated in Article 19. Hence, the
enumerated freedoms came to be read and interpreted in close conjunction with interests that can be
invoked by the government of the day in order to curtail them.
This takes us to several questions about their interpretation. Do these enumerated freedoms enjoy a
higher pedigree than other dimensions of personal liberty which have been progressively read into Part
III? How do they relate to other provisions that seek to ensure equality and protect liberty? What
happens in the case of conflicts between enumerated freedoms? What should be the standards of
judicial scrutiny in weighing the grounds provided by the State when it places restrictions on the
exercise of these freedoms? How should these freedoms be understood in light of social, economic and
political change? Can they be understood through a comparative lens by looking at how similarly
worded freedoms in other countries have been recognized?
Personal Liberty
Given its open-textured nature, Article 21 has emerged as the principal vehicle for judicial recognition
of liberties that are not explicitly enumerated. In its original form, it was conceived of as a ‘due
process’ clause which would entail procedural safeguards for defendants in criminal cases. The premise
being that individual defendants will require protections against prosecutions launched by the better
resourced State. This characterization goes back to British Medieval History, where the evolution of
safeguards in criminal trials was closely linked to the previous persecution of political dissenters and
religious non-conformists. In that sense, these protections reflect the transition from autocratic to
democratic rule. Hence, this provision acts as a reinforcement of rights such as that of seeking legal
representation, a fair opportunity to present a defence and to expect reasoned orders. Articles 20 and 22
also reflect on interface between the constitutional text and the law of criminal procedure. Article 20
codifies well-established protections in criminal law such as the restraint on retrospective
criminalization of conduct, the right against self-incrimination and the rule against double-jeopardy.
Article 22 deals with the power of the State to use measures such as preventive detention in the
interests of security or to maintain law and order. It also contemplates checks on this power such as
time-limits on the detention periods and review by Advisory Boards.
While the interface with criminal procedure becomes evident from a bare reading of Article 21, its
expansive reading takes us into other subject-matter. Given the recognition of the interrelationship
between Articles 14, 19 and 21 in the Maneka Gandhi case (1978), the Indian Supreme Court has
expanded the understanding of personal liberty in several directions. In differentiating this position
from the earlier decision of A.K. Gopalan (1951), the Court has in effect transplanted the idea of
‘substantive’ due process. This implies that rather than just insisting on procedural safeguards in
proceedings that can lead to the deprivation of personal liberty, a broader range of governmental
actions can be questioned if they infringe rights that emerge from a conjoint reading of the idea of
equality (Article 14), the enumerated freedoms (Article 19) and the open-textured protection for
personal liberty (Article 21).
A significant articulation has been in the context of framing what are 'reasonable expectations of
privacy', primarily in response to intrusive surveillance practices. This has paved the way for judicial
borrowing from other jurisdictions on this aspect. Another development in this direction has been the
evolution of ‘constitutional torts’ wherein courts have granted civil remedies such as monetary
compensation to citizens in lieu of harm caused by the State in cases such as those of unjust detention,
custodial torture, sexual assault or negligence by government employees.
We can observe two distinctive strategies that have been used to expand the ambit of the phrase ‘life
and personal liberty', namely:-
• Firstly, we can examine the articulation of respect for human dignity. This idea has been used to
argue for an expanded understanding of personal autonomy in settings such as the right of an
individual to choose death in case of a terminal illness or the right of persons with disabilities to
seek late-term abortions, to give two examples.
• The second interpretive strategy has been that of a fragmented process of harmonization with
some of the Directive Principles of State Policy (Part IV). This has enabled deeper judicial
engagement with socio-economic objectives such as that of expanding access to healthcare,
education and means of livelihood. These interventions have also reached collective goals such
as environmental protection and remedies against corrupt practices in governance.
However, such expansive interpretation also invites considerable criticism since it often reflects
selective pursuits of policy objectives that require administrative expertise and large budgetary
commitments. Some argue that this form of judicial expansion upsets the ‘separation of powers’
between the three principal limbs of government and should be characterized as unwelcome activism.
Others argue that such judicial engagement becomes a vital tool for progressive change since the
interests of disadvantaged parties with inadequate bargaining power in the political process are more
likely to be addressed by the courts. Yet another perspective is that courts are poorly equipped to deal
with socio-economic policies and risk undermining their own legitimacy in the eyes of the litigants if
their orders are not enforced.
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Session 10: Equality
Equal Protection Review
‘Equality’ is held up as one of the three legitimating ideals of the enlightenment, alongside those of
‘Liberty’ and ‘Fraternity’. The Preamble to the Indian Constitution refers to all three of them but
perhaps goes much further when it comes to Equality since it refers to both the equality of status and
that of opportunity. The text of Article 14 explicitly addresses the ideal of ensuring ‘equal protection
before the law’ which is semantically distinct from the expression ‘equal protection of laws’. The
antecedents of the same can be traced back to a part of the 14th Amendment of the United States
Constitution which was inserted after the Civil War in order to ensure a measure of formal equality in
voting and property rights for the previously enslaved population. Nearly a century later, the SCOTUS
(then led by Chief Justice Earl Warren) started expanding the meaning of this provision, so much so
that it served as the legal bedrock of the civil rights movement of the 1960s.
In the Indian context, Article 14 can be read in two distinctive ways. The first level is that of reading it
as a formal standard of equality. Within its first decade, the Indian Supreme Court had developed the
test of ‘reasonable classification’ to scrutinize governmental action that was challenged on this ground.
The first step would be to examine if there were cogent reasons offered by the government to draw up
the classifications. The validity of the classifications would then turn on whether the criteria used for
drawing the same was related to a legitimate policy objective. In most cases, the presumption of
validity led the Courts to accept the mere assertion of reasons as sufficient to accept differential
treatment between similarly situated persons or other entities. However, by the mid-1970s, judicial
decisions started to exhibit more searching standards of scrutiny. Instead of simply looking for
discriminatory intent behind governmental actions, Courts started paying attention to their
discriminatory consequences. This marked a shift from a formal to a substantive standard of ‘equal
protection review’ which is seen as a protection against arbitrariness in governmental action.
This newer approach directs judges to pay closer attention to whether the rights-bearer suffers a legal
injury on account of the impugned action even if the latter is backed up with strong justifications by the
State. Supporters of the ‘proportionality’ approach advocate that judicial scrutiny should also account
for how the impugned governmental action intrudes into other recognized rights. If the stated policy
objective could be pursued through less intrusive measures, then the Courts can cite them to invalidate
more intrusive measures. Some benches have also tapped into foreign precedents to invoke a standard
of ‘stricter scrutiny’ where the intrusion into enumerated rights is considered sufficient to invalidate or
read down a statutory provision or executive order, irrespective of the merits provided by the State.
However, there are conflicting opinions on whether such ‘tiers of scrutiny’ [namely (I) Rational Basis
Review, (II) Proportionality, (III) Strict Scrutiny] can be used in the Indian context, especially with
respect to the enumerated anti-discrimination provisions such as those providing for affirmative action
in public employment, higher education and electoral representation.
Apart from invidious forms of discrimination in governmental action which may be shown by the
affected parties, there can also be some discriminatory classifications that largely have a benign or
protective character. In the ultimate analysis, the Courts would have to examine how the claim of equal
protection squares up against policy objectives, especially after accounting for the interrelationship
between various fundamental rights. Special emphasis will be placed on how the Indian Supreme Court
has used the phrase ‘golden triangle’ to highlight the intersection between equality (Art. 14), personal
freedoms (Article 19) and the guarantee of due process (Article 21).
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Session 11: Distributive Justice
Distributive Justice
The principle of fairness (John Rawls, A Theory of Justice, 1971) ties the acknowledgment of political
authority with the goal of distributive justice. This idea was developed in order to legitimise the welfare
function of modern liberal democracies. Participation in a constitutional democracy is likened to a
cooperative scheme, where citizens assume duties of contributing to the success of the same since they
have benefited from the efforts and contributions made by other participants in the said scheme.
Citizens would also have a self-interest in ensuring the success of governmental efforts that protect
them during times of vulnerability and distress. For example, consider the argument for healthy
individuals to regularly contribute to a publicly administered health insurance scheme. Another
instructive example would be that of employment conditions that require employees to set aside a
portion of their income towards pension funds.
In this sense, the duty to obey just institutions that seek to distribute benefits and burdens in a fair
manner seems to gain far more importance than periodic acts of political participation such as voting,
representation, agitation and other forms of public discussions. In formulating the 'Difference
Principle', Rawls speaks about the duty of obedience towards policies and institutions that seek to
protect the most disadvantaged sections of society. However, there are numerous objections mounted
against this moralistic account of a welfare state.
(a) Libertarians argue that the principle of fairness places undue restrictions on the personal liberties of
citizens, principally by curtailing their choices about how to deploy their own material resources and
efforts. (Critique of State Paternalism). They further argue that welfarist redistribution would have the
effect of discouraging individual initiatives and sometimes seek to deliver benefits that are not valued
in the first place (Robert Nozick, Anarchy, State and Utopia, 1974).
(b) Critical Social Theorists have also been quite critical of the principle of fairness. For instance,
Nancy Fraser (Social Justice in the Age of Identity Politics, 1994) famously argued that the emphasis
on economic redistribution was inadequate to understand the difficult questions thrown up by groups
which have faced cultural subordination and marginalisation at a structural level (e.g. discrimination
based on caste, gender, race, religion, language, sexual orientation, persons with disabilities). For
example, can affirmative action programmes which ensure representation for historically marginalised
groups in higher education and public employment really remedy the centuries of social stigma faced
by them? Why would dominant groups assume a duty of contribution which entails visible reductions
in the resources and opportunities available to them? To what extent can the pursuit of social justice
rely on such ideals of self-affliction?
Since the 1970s, other scholars have built upon the ideas of John Rawls. Prominent among them are
Amartya Sen who is known for framing the 'Capabilities Approach' (See: Development as Freedom,
1998; The Idea of Justice, 2011). This entails that instead of pursuing a subjective standard of economic
welfare, the state must aim to create and distribute public goods which enable people from
impoverished and marginalized backgrounds to enhance their own possibilities of upward socio-
economic mobility. For example, instead of narrowly focusing on improving educational access
through affirmative action schemes and targetted scholarships, the State must actively invest in creating
and expanding the necessary infrastructure for delivering education to communities that have been
historically denied access to formal education. Likewise, reforms in public health should concentrate
on building capacities for primary healthcare at the grassroots level instead of concentrating on
attracting private investment in high-end hospitals (providing secondary and tertiary care) that largely
cater to the richest segments in society.
Another important conceptual formulation has come from Michael Walzer, who coined the phrase
'complex equality' (Spheres of Justice, 1983). In essence, he argued that the Liberal Democratic State
can justify policies that seek to prevent or restrict the transfer of inequality from one sphere of human
life to another. For example, if the concentration of wealth in the hands of a few corporations enable
their promoters/owners to exercise undue influence over news-media coverage and electoral
preferences, laws can be made to tackle these problems. Likewise, inequalities based on social markers
of discrimination (such as those based on race, caste, gender, religion) should be filtered out in the
criminal justice system, namely that these biases should be acknowledged and actively counteracted
upon during the process of investigation and trial.
Points for reflection: How do we locate ideas of economic liberalism in Indian politics? Can we clearly
identify groups and formations that support welfarist redistribution policies as opposed to others who
are closer to the Neo-Liberal position which favours minimal state intervention in economic affairs?
Examples for discussion:

-What is the ideological/philosophical basis for progressive taxation?
-Why should the State legislate on the issue of minimum wages for workers?
-Why should the State have the power to acquire land from private parties?
-Should we implement measures such as a 'Universal Basic Income'?
----------------------------------------------------------------------------------------------------------------------------

Session 12: Historical Justice
Arguments about distributive justice emphasize the duties of a liberal democratic state to actively
engage in the pursuit of welfare functions. Very often, this idea of welfare is grounded in the present
needs of society, namely by invoking the interests of the most disadvantaged sections of the population.
However, the forward-looking emphasis on the redistribution of tangible economic resources and
opportunities often masks the older causes of the existence of inequality and discrimination in the first
place. Hence, the very theorisation of distributive justice needs to be grounded in the unique history of
the country/legal system where such welfarist functions are being performed.
Many scholars have argued that constitutional democracies can flourish only if the citizens
acknowledge a collective moral responsibility to address wrongs committed in the past. In this view, it
is justified to frame laws and policies which explicitly try to provide redressal to those who were
affected by such wrongful behaviour. However, we must ask whether it is actually possible to
compensate those communities who have suffered on account of these wrongs over several
generations? Here, the emphasis in not on specific violations of civil rights or individual instances of
atrocities, but on structural causes of discriminatory or exploitative behavior that took place in the past.
Such questions gain prominence when societies witness decisive changes in their political, economic or
social arrangements. For example, countries that underwent long-periods of foreign domination in the
form of colonialism have seen demands for reparations and apologies from the older colonial powers.
(Think about Shashi Tharoor's speech at the Oxford Union, 2015). In other contexts, remedies are
sought against systemic forms of racism, such as the recent protests following the custodial death of
George Floyd that are calling for police reforms and accountability in the USA. One can also think
about the origins of the field of International Criminal Law in the Trials for War Crimes at the
Tribunals in Nuremberg and Tokyo. Yet another example would be statements of apology made by
political leaders in recognition of the exploitation of minority groups (France) and indigenuous
communities (Canada).
The Indian Constitution also tries to grapple with questions of historical justice, albeit in a limited
form. To some extent the constitutional goal of bringing about social reform addresses the history of
caste-based discrimination in our society. As discussed earlier, Dr. B.R. Ambedkar's own writings in
support of anti-caste movements played a role in the drafting of anti-discrimination provisions such as
Article 15(2), Article 17, Article 23 and Article 25(2)(b). However, public debates tends to be centered
on the provisions that provide for reservations in the domains of education [principally Article 15(4),
but one can now cite Articles 15(5), 15(6) and 21-A], public employment [Article 16(4)], Union
Parliament (Article 330), State Legislatures (Article 332) and Local Elected Bodies (Articles 243D and
243T). While reservation policies are often defended as measures of distributive justice which aim to
secure a minimum threshold of representation in public life for marginalised groups, they also need to
be grounded in ideas of historical justice. This account provides a better response to the oft-quoted
objections raised against compensatory discrimination, namely that (i) excessive reservations lead to a
problem of 'reverse' discrimination', (ii) why should the present generation of individuals belonging to
dominant communities be held responsible for the faults of their ancestors and be compelled to give up
claims to valuable resources and opportunities, and that (ii) 'compensation for past wrongs' is an
illusory goal. We must think about the credibility of these objections and the responses to them.

Session 13: Religious Freedom
Think about the language of Articles 25 and 26 in the Indian Constitution, which are the principal
provisions dealing with the ‘freedom of religion’. Articles 27 and 28 are also connected to the same,
but they are not litigated as much on account of their relatively precise language. It will be useful to
begin with an overview of how the debate on secularism has evolved in post-Independence India. The
Constituent Assembly Debates were closer to the idea of ‘equal respect’ secularism which implies that
the State should allow different religions to flourish in public life and not discriminate between them,
either by endorsing one religion or by stigmatizing another. This idea is distinct from the strand of ‘No
concern’ secularism that is identified with some Western democracies where the State is expected to
actively disentangle religious practices from public life.
A useful analytical category in this regard is one given by Gary Jeffrey Jacobsohn (The Wheel of Law,
2003) who speaks of ‘accommodative’, ‘ameliorative’ and ‘assimilative’ approaches to secularism in a
comparative study of how the concept has played out in India, the United States and Israel respectively.
Rajeev Bhargava (The Distinctiveness of Indian Secularism, 2006) has argued that Indian Secularism
should be conceptualised very differently from Western nations. The main premise is that the South
Asian subcontinent has a much longer history of accommodating religious diversity in political,
economic and social structures when compared to the Western nations that were earlier constituted
around homogeneous identities (based on religion, language or ethnicity) are now grappling with the
implications of multiculturalism owing to economic globalisation and immigration.
Given the electoral consolidation of Hindu nationalism since the 1990s, social and political
commentators have laid stress on the ideal of religious tolerance as one of the essential attributes of
liberal constitutionalism. Others argue that the public expression of religious beliefs should not be
encumbered by the State, since their suppression would weaken the legitimacy to govern a multi-
religious country like India. It must be kept in mind that some religious practices can come into conflict
with other rights enumerated in Part III. The early thrust of the Indian Supreme Court was to
subordinate the 'freedom of religion' to other constitutional provisions such as those directed against
discrimination. This is evident from decisions that upheld statutes which created remedies against
customary restrictions on access to places of worship. The Court also scrutinized financial decisions
made by religious trusts and endowments by articulating a distinction between the ‘essential’ and
‘secular’ practices of a religious group. As per this standard, judicial interventions were legitimized in
so far as they dealt with practices pertaining to financial matters such as the distribution of offerings
collected from worshippers and the management of property owned by religious groups. On the other
hand, functions such as the performance of long-practiced ceremonies and the preservation of the
premises were deemed to be ‘essential’ and hence left outside the purview of judicial scrutiny.
Over time, the ‘essential-secular’ diad has proved to be counterproductive in several matters dealing
with governmental restrictions on religious practices. In particular, it has proved to be a conceptual
obstacle in dealing with persistent controversies such as those arising from restrictions on cow-
slaughter and State-level laws that criminalize the act of religious conversion. There have also been
intense debates surrounding situations where religious practices are seen as antithetical to the
maintenance of public order. Another significant question that can be examined at this stage is whether
there should be judicial scrutiny over personal laws of religious minorities? While older decisions had
exempted personal laws from such scrutiny through their interpretation of Article 13, the question has
been debated intensely in recent times, especially in the context of some marriage practices which are
recognised in Muslim Personal Law such as ‘Triple Talaq’ and ‘Polygamy’.
We should also think about Articles 29 and 30 which protect the rights of religious and linguistic
minorities to preserve their language and culture and concomitantly to establish and administer
educational and charitable institutions respectively. At the time of the framing of the Indian
Constitution, the language of these rights was substantially borrowed from comparative sources. The
protection of the educational and cultural rights of minorities was given utmost significance in the
discourse of International Human Rights Law, a field which was emerging at the time as a response to
the majoritarian atrocities witnessed during the Second World War. In that sense, these rights speak
both to the ‘freedom of religion’ as well as the larger ideal of promoting equality and non-
discrimination in the polity. However, the judicial interpretation in India has changed the contours of
the debate. Especially in the context of Article 30, the central question has been whether this provision
is merely meant to protect the identity-conferring practices (such as language and religious belief) or
should it extend to generic activities such as the pursuit of higher education in professional fields? One
position in this regard is that educational institutions run by religious and linguistic minorities should
be given considerable autonomy from governmental regulation so that they can provide effective access
to education for their own members who might otherwise struggle to acquire the same in institutions
dominated by the majority religious or linguistic groups. A contrary position is that differential
treatment accorded to minority-run educational institutions would also make it harder for the
government to regulate their quality, apart from obstructing the implementation of affirmative action
provisions in the education sector such as those enumerated in Articles 15(4), 15(5) and 21-A. In this
context, the role of the National Commission for Minority Educational Institutions (NCMEI) has
become important as an oversight body.

VLS Jurisprudence I (May-June 2020)

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VLS Jurisprudence I (May-June 2020)

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Subject: Jurisprudence – An Introduction to Legal and Political Philosophy

Instructor: Sidharth Chauhan (Assistant Professor, NALSAR Hyderabad)

Weekly Unit Session Topics for Coverage Instructor's Remarks /

Session 1: Why Should We Study Legal Philosophy?

Jurisprudence – An Introduction to Legal and Political Philosophy

Session 2: What do we mean by Conservatism?

Conservative attitudes towards religion / family / property / nationalism

How should we situate Social-Cultural Conservatism?

How should we situate Economic Conservatism?

Where do we locate Legal Conservatism?

Example for Discussion:

We must learn to distinguish between the Conservative-Liberal binary in terms of:

Jurisprudence – An Introduction to Legal and Political Philosophy

Session 3: What do we mean by Liberalism?

However, it would be a conceptual mistake to use this 'Liberal-Conservative' binary in a simplistic

How should we situate Political Liberalism?

Liberalism--- Central Ideas discussed below:

Conservatism------ Central Ideas outlined in previous session

Authoritarianism ------Arguments for concentration of political power

Key elements of Liberalism (as framed by Alan Ryan)

• Regulation of Capital (Economic Liberalism): Ideas of Economic Liberalism have developed

Examples for discussion:

Jurisprudence – An Introduction to Legal and Political Philosophy

Session 4: How do we understand Marxist Political Thought?

'Marxism' as a theoretical formulation is deeply critical of the:

Influence of Marxist Thought on Academic Inquiry

Jurisprudence – An Introduction to Legal and Political Philosophy

Session 5: What is meant by Feminist Stances in Politics and Law?

Unlike Conservatism, Liberalism and Marxism, Feminism cannot be described as a distinctive

Questioning the Public-Private Divide

'Sameness', 'Difference' and 'Domination' in Rethinking Liberal Concepts

Jurisprudence – An Introduction to Legal and Political Philosophy

Session 6: Contractarian Approaches in Political Theory

Practical Reasons for Obedience

- Purely Practical Considerations based on an individual's immediately available resources and

Jurisprudence – An Introduction to Legal and Political Philosophy

Session 7: Communitarian Approaches in Political Theory

Jurisprudence – An Introduction to Legal and Political Philosophy

Session 8: Ideas of Constitutionalism

Jurisprudence – An Introduction to Legal and Political Philosophy

Session 9: Justifications for Rights

Jurisprudence – An Introduction to Legal and Political Philosophy

Equal Protection Review

Jurisprudence – An Introduction to Legal and Political Philosophy

Session 11: Distributive Justice

Examples for discussion:

Jurisprudence – An Introduction to Legal and Political Philosophy

Session 12: Historical Justice

Jurisprudence – An Introduction to Legal and Political Philosophy

Session 13: Religious Freedom

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