Gandhi and Law: The Philosophical Stakes

Author(s): Sasheej Hegde

Source: Social Scientist , May - Jun., 2006, Vol. 34, No. 5/6 (May - Jun., 2006), pp. 70-83
Published by: Social Scientist

Stable URL: https://www.jstor.org/stable/27644142

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Gandhi and Law:The Philosophical Stakes

CD
"O
OuO
(D
IE
'?T
(D
co But only he who has mastered the art of obedience to law
{j^ knows the art of disobedience to law.
Gandhi [Younglndia, 5-11-1919]

At the very outset, a confession: I am not entirely sure the pages that
follow do complete justice to my title. But hopefully it will trigger a
discussion, and I can approximate to a theoretical consolidation.

I
It is certainly not the least achievement of current debates on Gandhi
to see him both as an effective counterweight to liberalism and to have
discredited the notion that he had nothing to do with liberal thought.
This essay is an attempt to draw out some implications ofthat double
edged construal by considering a problem that has been intruding
itself into my own field, namely, the spaces of legal and moral
judgment.
I begin with an observation issuing off Professor Akeel Bilgrami's
important essay 'Gandhi, the philosopher' (2003). The guiding
hypothesis of his reading is that, with reference to Gandhi, exemplary
action takes the place of both moral and political principles; and that
it is only by this substitution can the violence that is implicit in
principles themselves be neutralized. As he puts it:
"If someone fails to follow your example, you may be
disappointed but you would no longer have the conceptual basis
to see them as transgressive and wrong and subject to criticism"
(ibid.: 4163).
Without doubt this is a striking formulation - all the more so for
the added spin that Bilgrami lends to it - and yet I am not entirely
sure whether all its limits (I am referring of course to Gandhi's
conception of moral judgment) are being properly heeded. Note, not
quite that Bilgrami has got it all wrong about Gandhi; rather, in
getting it right, whether he is entirely coherent about having got it
right and indeed whether the theoretical and moral matrix needs to be
complicated somewhat. The ground needs to be addressed not only
for philosophical and historical reasons, but also as a way of coming
to terms with the seeming paradox of annunciating a principle - in a

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 Gandhi and LawiThe Philosophical Stakes

word, Gandhi's integrity - out of a moral position that is taken to eschew %?

moral and political principles.1 To be sure, I am irritated, but I will not let it zzr
get the better of me. Incidentally, although Bilgrami does not quite invoke the J5.
problem in the way that we are, the conception of integrity that grounds his IE
formulation comes close to (without quite overlapping with) what I am cro
getting at. There is of course the question of the legal and the moral that I fl>
want to implicate more forcefully in the context of Gandhi.
Bilgrami is inclined to posit the liberal provenance of moral judgment
(apace fashioned through Mill and Kant) as the backdrop against which to
serve up an understanding of the philosophy behind Gandhi's politics. The
maneuver is interesting and certainly pushes the discussion forward. And yet
it also stops and swaggers, and, in the ultimate analysis, I am not sure it does
justice either to Kant or to Mill or even to Gandhi. That's the problem with all
exegesis and commentary; and, although criticism has a function considerably
larger than reportage or the articulation of opinion, what turns commentary
into criticism, what gives it critical edge and focus is, above all, its concern for
the quality of public agreement about a work (or works). That is a concern I
would like my thoughts here to mediate. Exemplariness, I take it, on any
register - whether it be the realm of actions, ideas, events, practices, or even
interests - is governed by norms. That is to say, there are standards of fidelity
and determinants of faithfulness in relation to which exemplarity is specified
and/or identified.
I am sure aspects of Professor Bilgrami's argument will be commented
upon by othep contributors here - and elsewhere. I want to dwell, in the
context of Gandhi, on another factor which has (I am inclined to reiterate)
received less attention. Of Gandhi's many personalities, the most neglected is
that of the lawyer and indeed his complex and variable positions on law and
lawyers. I am afraid I am not going to comb through his writings for a sense of
the same - readers could make do with the book compiled and edited by S. B.
Kher with the title The Law and the Lawyers (1984) and those more diligent
could scan through the hundred odd volumes of the Collected Works of
Mahatma Gandhi (CD version dates to 1999) brought out by the Publications
Division of the Government of India. Nor am I interested to attest to his
ambidexterity with both the British and the Indian codes of behaviour and
rationality. As any serious student of modern Indian history and society
knows only too well, it was his familiarity with the British legal system that
enabled Gandhi to feel his way into its centre and pose it questions which
often it could not answer too well.
My challenge is somewhat more abstract, without doubt precipitated by
the guiding hypothesis of Bilgrami's important paper. In a more substantial
sense, it has to do with the quality and fecundity of'deontological dicta' - not j i

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 Social Scientist

o quite (only) in the space of morality or moral theory but (also) in a political
cm space of law and legal reasoning. The question clearly is not what kind of
<L>
C weight deontological dicta be given - although the level (
Z5
2^ restrict oneself to the domains under consideration) at whic
<y plays itself out is important - not even whether the West
moral and political judgment is the last word on the subject (s
Indeed, to seek what is logically required of or philosophically
deontological dicta is not quite the same as suggesting th
involve a scaffolding of facts and frameworks. There is stil
standards to be met in establishing that something is the cas
> how something is the case but also whether knowing ho
case is enough for asserting that this is the case and that th
course of action) ought to be attempted or pursued. Of cour
to the terrain of law with deference to Gandhi.

II
The task of responding to Gandhi's views on law and lawyers and his strategies
for both using and defying British law is not an easy one. The reason it is
difficult to respond is this - one that has to do with all his claims on various
subjects, and indeed the way he led his life - for Gandhi, the devil was in the
detail, in the minutest elements of lexicon and grammar, of typography and
punctuation. The advocacy and adjudicatory dimensions of law, which for
him was the preconditionality of a knowledge and use of (British) law for the
work of breaking it and accordingly confronting the 'stateness' that it
encodes, could only be diagnosed and fought against at the microscopic level,
by an implacable philology of irony and disobedience, by tactics of reading
not only between the lines, but between the letters of mendacious words and
gestures in courts. This, in turn, entailed Gandhi's immersion in the leviathan
mix of contemporary journalism, bureaucratic jargon, political rhetoric, legal
parlance and the avalanche of mass mobilization. One need only look at the
multifarious dispatches of Young India, given over to bringing to public
attention specific miscarriages of British justice, as well as the entreaties to
public authorities - and indeed the language and compositional logic in
which he frames them - to establish the point.2
The millions of strong words which Gandhi wrote addressed multiple
instances of public order and civic duty, of semantic "unruliness' on the part
of all - those implementing authority, those breaking it, those resisting it, and
those others quite plainly living through it. This means that a dominant
proportion of Gandhi's polemics, essays and articles, famously published in
his weekly paper Young India and Harijan, deal with intensely local, often
transient and yet tangible targets. The mosaic of allusion, of playful, angry or
contemptuous reference, of strident and masked citation is itself a formidable

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 Gandhi and LawrThe Philosophical Stakes

collage, a montage as cunning and kaleidoscopic as that in the best of film and p?
Surrealist art. But to appreciate it fully, an archival familiarity with the zzr
currents of Gandhi's India before and after the First World War is ?>.
indispensable. T.
There is however the 'other' Gandhi, the satyagrahi, of civil disobedience era
and non-violence and active and passive resistance, the apocalyptic and the fl>
exemplary on an epic scale. One confronts here the vast canvas of Hind
Swaraj, of The Story of My Experiments with Truth, of Satyagraha in South
Africa and From Yeravda Mandir - as indeed Young India and Harijan -
prose-poetic frescoes whose overwhelming dimensions seem to counterpoint
the concentrated minimalism of Gandhi's lawyering and 'counter-journalism'
(alluded to above in this section). Here are works and utterances, in part yet
to be exploited, which seek to embrace, to dramatize the entire flowering and
sordidness of an order coming-to-be. I can only cite at random:
It has been my experience that I am always true from my point of view,
and am often wrong from the point of view of my honest critics. I know
that we are both right from our respective points of view. And this
knowledge saves me from attributing motives to my opponents or
critics. ... I very much like the doctrine of the manyness of reality. It is
this doctrine that has taught me to judge a Mussulman from his own
standpoint and a Christian from his. ... My anekantavada is the result of
the twin doctrine of satyaemd ahimsa (YoungIndia, 21-1-1926).

I look upon an increase of the power of the State with the greatest fear,
because although while apparently doing good by minimizing
exploitation, it does the greatest harm to mankind by destroying
individuality, which lies at the root of all progress. ... Violence becomes
imperative when an attempt is made to assert rights without reference to
duties (Interview to Nirmal Kumar Bose, The Hindustan Times, 17-10
1935).
Outside circumstances have never overwhelmed me. The reason for the
present darkness lies within me. I find that my ahimsa does not seem to
answer in the matter of Hindu-Muslim relations. This struck me
forcibly when I came to learn of the events in Noakhali. ... I could do
nothing through pen or speech. I argued to myself that I must be on the
scene of action and test the soundness of the doctrine which has
sustained me and made life worth living. Was it the weapon of the weak
as it was often held by my critics or was it truly the weapon of the
strong? The question arose in me when I had no ready-made solution
for the distemper of which Noakhali was such a glaring symptom
(Harijan, 19-1-1947). 73

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Social Scientist

o No man can claim to be absolutely in the right or that a particular thing

cm is wrong because he thinks so; but it is wrong for him so long as that is
c his deliberate judgment. It is, therefore, moot that he should not do that
"T^ which he knows to be wrong, and suffer the consequence whatever it
<y may be. This is the key to the use of soul-force (Hind Swaraj, Vol.10 of
so Collected Works).

o I am myself daily growing in the knowledge of satyagraha. I have no

Z text-book to consult in time of need, not even the Gita which I have
m called my dictionary. Satyagraha, as conceived by me, is a science in the
o making. It may be that what I claim to be a science may prove to be no
science at all, and may well prove to be the musings and doings of a fool,
if not a mad man. It may be that what is true in satyagraha is as ancient
as the hills (Harijan, 24-9-1938).

The world learns to apply to a man the standards which he applies to

himself (Satyagraha in South Africa, Vol.34 of Collected Works).
Hence the prophetic sweep, the teeming prodigality of his "story of my
experiments with truth" (Vol.44 of Collected Works). Hence the gust of
divination which induced Gandhi, in 1932, to proclaim "(i)ndeed it is all the
same whether we say that the universe is a function of truth or that it is a
function of Law" (cited in Iyer 1973: 155). Only Ambedkar, whose relations
with Gandhi are not always easy to determine, matches the latter's genius for
foresight (although it is a different matter who, of the two, is more
philosophically challenging).
One approach to Gandhi's duality vis-a-vis the question of law is to
approximate to what we have epigrammatically positioned at the head of this
writing. Allow me to repeat it here: "But only he who has mastered the art of
obedience to law knows the art of disobedience to law" (Young India, 5-11
1919). It obviously translates into a rule of political obligation - not entirely
unconnected with truth and ahimsa of course. Are we presupposing a
foundationalism in Gandhi? Well, not quite.3 Underwriting the question, of
course, is the fact-value issue which I am afraid I cannot develop in detail
here, for reasons of time and economy of argument. But do consider the
following. Gandhi can, often, be chastised for jumping from the descriptive to
the prescriptive, for what one might posit as an illicit is/ought cross-over.
Surely Gandhi is not given over to analytic work to recognize the naturalistic
fallacy of inferring our normative commitments from some factual similarity
(or condition). But there is a difference between saying that the truth of a
descriptive statement (xhas property F) implies a prescription (x ought to be
treated in manner Z), and saying that Z supervenes upon F. Supervenience - I
74 take to imply (philosophers could correct me if I am wrong) - is that if x is to

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 Gandhi and Law:The Philosophical Stakes

be treated differently from v, then there must be some other difference ^

between x and y on which that prescriptive difference supervenes.4 ~r
Extrapolated onto the space of Gandhi and the positions we are ?2.
considering the determination that this would yield is the following. Taking x IE
to be the citizen (with the attribute F, namely, the right to resist) and y the era
State or its authorities/institutions (with Z, the imperative of obedience and <t>
compliance with the law), Gandhi would hold that the imperative of
obedience and compliance with the law (Z) would supervene on the right to
resist (F). Surely this is the difference between the State and the citizen on
which that prescriptive difference supervenes, and the basis of the claim
foregrounded above u(o)nly he who has mastered the art of obedience to law
knows the art of disobedience to law" (emphasis is mine).5 Arguably, this is a
feature of all moral discourse, not just of Gandhi that is susceptible to the
naturalistic fallacy or to bridge the is/ought gap. Of course, if Z supervenes
upon F - and I discern in Gandhi no sustained attempt to establish a relation
of implication between them - then there must be some other way of
explaining their relation. For Gandhi - or so it seems on my reading - we
must be able to say why the fact that x has F and y does not is a reason for
treating x in accordance with Z but not y. That explanation will normally be
itself a moral suggestion - and thereby exemplary - and of course it too will
need to be defended. Thus again: "But only he who has mastered the art of
obedience to law knows the art of disobedience to law' (emphasis is mine).
Operative here are (two?) concepts of 'self-mastery' and 'rule', which I
have tried to explicate elsewhere (and probing another context) as the
presence of an imperative/prescriptive dimension (Hegde 1998). That is to
say, something binding and commanding, offering itself with a sense of
obligation, and whose determining ground can or ought to be adduced
alongside a certain Indian normativity. The existence of this normativity -
roughly equivalent to the questions 'what is justice?' or 'why be moral?' or,
even more squarely, the preoccupation with codes of conduct considered to
be exemplary/desirable - is, as I had posited therein, the mark of a concern
within the tradition to articulate the 'political' (the space of force, generally)
in accordance with a criterion of legal regulation and/or mora/subjectivation.6
It should be discernible that the epithets legal and moral are taken to be
broadly coeval - I am afraid I cannot get into this in detail, but see the
discussion that follows in our third section - and, within the tradition,
received as complementary modes of marking the space of power. The force
of this marking is what gives the tradition its currency, that is to say, informs
its strategies of individuation and control and ensures its articulability in
different historical and discursive circumstances.
But let me get back to Gandhi and the register of my construal. The 75

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 Social Scientist

o problem as I am formulating has an obvious Kantian

cm to possess a non-Kantian underside - not quite, or
c - can show, of any form, modality or circumstance, h
also how, if impossible, that impossibility could yet
Z The point is not that if one meant by the rule o
so insistent interrogation of the order of law and
Ln institutions, one will answer - in accord with G
o necessary and/or that modifications ought not to b
co
Rather that if one intends to accord with the meanin
address it normatively, in terms of convictions of a
> must do - in terms, say, of norms of/for decision v
from, say, something expressed in terms of what on
do). The question is: what is one to make of this? W
weight can it be given? The nub of the problem
estimation, the status and ontology of deontological

Ill
Broadly - and perhaps somewhat loosely - deontological dicta exist
independent of the state and positive (man-made) law.7 The most obvious
way (though not the only way) to account for this proposition within the
broad framework of liberal thought is through a particular species of natural
law theory which conceives fundamental individual rights as those natural or
'moral' rights possessed by individuals in the state of nature by virtue of
natural law.8 Most liberal natural law theories are bound up with the notion of
the social contract, the hypothetical device through which people moved
from an imagined 'state of nature' that preceded the advent of civil society to
a condition in which they live subject to the authority and the rules of the
state.9 The combination of Kantian ethics and social contract theory yields a
particularly muscular conception of the individual's natural rights vis-?-vis
the state: natural rights are universal (corresponding with Kant's emphasis
that all individuals have a unique worth by virtue of their humanity); they are
enjoyed by all individuals equally; their existence does not depend upon the
actions of other individuals or governments, but rather predates governments
and were retained upon entry into the social contract; and they are inalienable
- they could not have been surrendered upon entry into the social contract
even if the 'contractors' had wanted to - and thus cannot be compromised (as
they might under utilitarian theories) to further the interests of the majority
even if this would best advance the aggregate balance of good over evil. In its
most robust form, this argument assumes that there are at least some rights
defined by natural law that are so fundamental they are absolutely protected
from governmental interference.10
76

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 Gandhi and LawrThe Philosophical Stakes

This notion of deontological dicta rejects ideas of moral subjectivism or p?

relativism in favour of a form of moral realism that posits, as Ronald Dworkin ~r
has, that there is always one best, right answer to moral questions, including jQ>.
those implicating fundamental rights.11 Yet, as we know only too well (and X
Gandhi did), while moral truths objectively exist, they are not always readily QQ
. discernible in fallible human beings.12 Most moral realists acknowledge that - <T>
in the words of the philosopher Jeremy Waldron (1993) - "people disagree
implacably about what the objectively right answer is" to deontological
dicta.12 Even those who believe that at least some individual rights 'trump'
other societal interests disagree on the content and scope of those rights, how
they should be ranked, and how they should operate in specific
circumstances/Some person or institution must be vested with the authority
to resolve these issues when concrete controversies arise. Any workable theory
of deontological dicta, therefore, must be supplemented by a theory of
authority addressing how they should be protected and enforced (Cf.
Waldron 1993).
The approach taken in large parts of the Anglo-Saxon world for the past
century has been to entrust fundamental decisions to the representative
institutions of majoritarian democracy, but to many of the leading
proponents of deontological conceptualizations of natural or moral rights -
influenced no doubt by the legal literature on the point from the United
States - ultimate authority regarding fundamental rights should be assigned
to the judiciary.13 For instance, Dworkin (1977: 142-49) has argued that the
concept of a right against the government is inseparable from the institutional
control placed on the majority and its representatives in a constitutional
system. The theoretical justification for placing this institutional control in
the hands of judges is perhaps to withdraw certain subjects from the
vicissitudes of political controversy - to place them beyond the reach of
majorities and officials and to establish them as legal principles to be applied
by the courts. To be sure, it is sometimes necessary to subordinate the
transitory concerns of the day to deeper considerations of deontological dicta.
Judges, at least in principle, are taken to be insulated from direct political
pressures and the more overt aspects of the campaigns of special interest
groups, and are often uniquely positioned (along with legal academics, of
course) to take a long-term perspective on issues affecting the society and
polity."1
Now, I am not quite in a position to determine where Gandhi is placed on
the issue; indeed whether he can (or ought) to be so placed and if could lend
a twist to the question. The problem is compounded by the fact that Gandhi
would accept a basic antinomy between the fields of law and politics (here,
direct action), seeing in the former the medium for establishing 'authority' 77

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Social Scientist

o (through lawyers and courts). But of c

cm served to undermine (British) authority.
C the British legal system enabled him to s
pose it questions which often it could not
?2 from the fragments captured in Sect
so himself both to the view that wheneve
1-0 necessarily directs its subjects to an ex
o an impossibility in incorporating moral
^ that such incorporation is possible and
Zl and ought - be part of the law. For Gan
> state provide a means by which society c
own powers and limiting itself. But - and
their special expertise and deliberative pr
to draw the line between the sphere of so
the state), the area of private right and th
this out is clearly a challenge, and
concomitant fecundity) of deontological d
the legal and the moral domains.
Clearly, there is a problem in assum
'equality', 'justice' etc. appear in the law th
there is a sense in which they refer to lega
the moral standards. My own view would
and legal meaning of moral words. The m
concepts are never (or hardly ever) the sam
the same word - along with a difference in
in meaning. The German theorist Haberm
of law with morality need not always be
"the political element of law brings comp
(1992: 252)/717
Gandhi is sensitive to this, and yet would not grant that moral standards
can become legal standards. [I am glossing of course the reference/meaning
difference just alluded, although our concluding formulation turns it
around.] Professor Bilgrami's point - what he discerns as Gandhi's highly
'integrating' suggestion - that there is no true non-violence until criticism is
removed from the scope of the moral, and that the ideal of non-violence is
thus part of a moral position in which moral principles, which lead us to
criticize others, are eschewed, is definitely astute, but (as I noted at the very
outset) I am not entirely sure whether all its limits are being properly heeded.
To be sure, Gandhi 'equivocates' - not quite the word, but that can pass -
and I think understanding the basis of that equivocation is perhaps
7Q important. I can do no more than speculate, contextually. Allow me to quote

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 Gandhi and Law:The Philosophical Stakes

CO
at length from Robert Lingat (1973), since the work could lend some &
in
ZT
perspective to what seems to me a larger cultural circumstance. Querying the n>
a>
relationship between law and dharma, Lingat observes that "(the) element
which has served in the West as a foundation for a specific discipline, namely, (T)
OPQ
the coercive element, which characterizes a legal rule and distinguishes it from CL
(D
other rules which also control human activity" does not so obtain in the
Hindu context; and that the latter (in building up their law) "have derived it
from a more general notion which exceeds the domain of law in many
respects without actually comprehending it entirely: duty (1973: xii).
According to Lingat, "the classical legal system of India (unlike the 'Western
juridical system') substitutes the notion of authority for that of legality" (ibid.:
257-58). Lingat further maintains (an argument which could serve as the basis
of a whole new disputation in the context of Indology or Sanskrit knowledge
systems):
The word 'dharma' which could be translated as 'duty' in effect
expresses conformity with what Hindus regard as the natural order of
things; and this explains its association with law. But the rule of
dharma can only become a rule of law by a process beyond the expression
of it, a process which enables it to enter society armed with a power of
constraint which is not inherent in it (ibid.: xiii, emphasis is mine).
I am afraid I do not have the time or the space to lay this out. But clearly
the question is beyond conscience and its deliverances (whether the well
spring of principles or not).18 To be fair, Bilgrami is struck, less by the
plausibility of the philosophy that emerges in Gandhi than "by the stunning
intellectual ambition and originality that this integrity displays" (2003: 4159).
The steering is important, and I guess anybody working off Gandhi is bound
to be inspired by his singularity. I perceive the rudiments of another paper
here, provisionally titled 'Conscience and the law'.

Sasheej Hegde is at the University of Hyderabad.

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O Dworkin, Ronald. 1977. Taking Rights Seriously. Cambridge MA: Harvard University Press.
O
rsl
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<L>
cz
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>
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Truth: Philosophical Papers, Vol.1. Cambridge: Cambridge University Press, pp.21-34.

Waldron, Jeremy. 1993. "A Right-Based Critique of Constitutional Rights". Oxford

Journal of Legal Studies Vol.13 (1): 18-51.

Wolin, Sheldon S. 1989. The Presence of the Past Baltimore: John Hopkins University Press.

It would not suffice either to hold that ultimately (and paradoxically) deontological
dicta, from wherever they emanate, whatsoever their reference and/or meaning,
although universalizable are yet particular. This is neither here nor there. I am not
presuming of course that this specification is unnecessary or impossible, not even
that it should remain, as I think it generally is, unstated or pregiven, rather, that
questions of explanatory graft cannot - and indeed do not - exhaust the same.
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 Gandhi and Law:The Philosophical Stakes

Notes CO
fu
1. I recall Professor Bilgrami's distinguished lecture on Gandhi delivered some CD
years ago at the University where I teach. He may not remember, but I did ask
him - off the precincts of that meeting - whether, in the context of his I
understanding of the philosophy behind Gandhi's politics, the latter translates oro
into an 'archimedeanism' (sic.) beyond conventional measure. However, we did
a>
not have the time to clarify our mutual vantage points. The question, however,
has remained with me, although I do not venture to unpack it here and now. I
must confess, yet, that the word 'integrity' with which Bilgrami has couched the
discussion intrigues me no end; and, in an oblique sort of way, a part of the
problem of my text is to grasp this elusive ideal.
2. The Kher compilation called attention to earlier has a section 'Lawyers and
Satyagraha' devoted to these probings. See also the section entitled 'The Trials of
Gandhiji' which showcases the response of Gandhi to his many acts of 'civil
disobedience' in South Africa and India and in the wake of the Non-Coopera
tion movement of the 1920s and his subsequent trial for seditious writing. The
three pieces for which Gandhi is charged are also featured in the appendix. In
another context, Gandhi calls attention to the importance of legal draftsman
ship: "(I) do wish as a practiced draftsman to warn writers of petition, whether
they be pleaders or otherwise, to think of the cause they may be espousing for
the time being. I assure them that a bare statement of facts unembellished with
adjectives is far more eloquent and effective than a narrative glowing with
exuberant language" ('How not to do it?' Young India, 27-9-1919).
3. Cf. also Gandhi's view of the relation between the State and the citizen: "There
is no halfway house between active loyalty and active disloyalty" ( Young India,
27-3-1930). Expounding further in this piece, 'Duty of Disloyalty': "There is
much truth in the late Justice Stephen's remark that a man to prove himself not
guilty of disaffection must prove himself to be actively affectionate. In these days
of democracy there is no such thing as loyalty to a person. You are therefore
loyal or disloyal to institutions. When therefore you are disloyal you seek not to
destroy persons but institutions" (ibid.). For 'foundationalism' and its rejection
vis-?-vis the moral realm, see Rorty (1991).
4. I admit there is more to say about all this, but I cannot pursue it now. Surely the
supervenience relation is more complicated than what we have argued. But see
the discussion which follows in our text, and the subsequent section.

5. Cf. also Gandhi who proffers satyagraha as "an extension of the domestic law on
the political field" (Evidence Before Disorders Inquiry Committee, Ahmedabad
9-1-1920). Also his Statement to the Press (2-4-1934): "Let it be understood that
civil resistance is for those who know and perform the duty of voluntary
obedience to law and authority." Yet again: "'Civil disobedience' is certainly not
for those who have not learnt the art of voluntary obedience to law, even when it
is irksome. This elementary principle seems to have been altogether forgotten,
or else one could not witness spirit of indiscipline and disobedience to laws and
rules which we have ourselves enacted and to which we have voluntarily pledged
ourselves to render obedience" (The Hindu 16-8-1934).

6. Consider the classical scholar A. K. Coomaraswamy, who, working through a

81
series of glosses on the Indian formula T am That, thou art This, I am Sky, thou

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 Social Scientist

sO
O art Earth*, etc., addressed by the Brahman priest, the Purohita, to the King in the
O
CM Aitareya Brahmana, has remarked: "The essence of the traditional politics
<L> amounts to this, that 'self-government' (svaraj) depends upon self-control
C
(atmasamyama), rule on ruliness" (1978: 85). Also his claim that the question of
a traditional doctrine of government "is not only one of a universal and a
z national or civic order, but also one of an internal economy" (ibid.: 71). There
sO are of course complexities (and complications) that elude Coomaraswamy. For
some indications, see Hegde (1998).
7. Kant proposed that one must act in accordance with the 'imperatives of duty*,
maxims which can be derived from the principle of what he termed the
co
'categorical imperative.' See Kant (1785/1964: 82). In its initial formulation, the
"5 categorical imperative closely resembles the .'Golden Rule' of the Christian
>
tradition: "I ought never to act except in such a way that I can also will that my
maxim should become a universal law" (ibid.: 70). But Kant suggested other
formulations of the categorical imperative, including one that equates the
categorical imperative with the idea of respect for the individual dignity of
human beings. For a general discussion of Kant's categorical imperative, see
Mulholland (1990: 46-71).
8. Kant himself maintained that some (though not all) rights are 'inalienable and
imprescriptible', and can neither be acquired nor forfeited. See Mulholland
(1990: 9), who finds this conception of'rights' 'roughly similar' to the concept
of natural rights. For extended discussions of the relationship between Kant's
political theory and natural law, see Copleston (1960: 308-48).

9. Whether Kant himself was a social contractarian is the subject of some contro
versy. See Mulholland (1990) and the sources discussed therein. In any event,
Kantian ethics and social contract theory are quite compatible in important
respects. For example, contractarian theory assumes that all persons entered the
social contract on equal conditions. That is, all persons made the same promise
and surrendered the same rights when the social contract was formed. See
Wolin (1989). This premise sits well with the post-Kantian emphasis on the
equal dignity of individuals.

10. It is worth noting that Kant himself did not necessarily derive the same
conclusions that his successors have about the limits of the state's authority
from his contentions that at least some rights were inalienable. Mulholland
(1990: 3) has contended that, in Kant's philosophy, "rights and the state are ...
conditions for the exercise of freedom to be ruled by law rather than interest."

11. See generally Dworkin ( 1977). See also his Law's Empire ( 1986: 76-86) criticizing
moral relativism.

12. Cf. also Gandhi (the first of the quotes cited at random on p.7 above). Also:
"Everybody is right from his own standpoint, but it is not impossible that
everybody is wrong. Hence the necessity for tolerance, which does not mean
indifference to one's own faith, but a more intelligent and purer love for it.
Tolerance gives us spiritual insight, which is as far from fanaticism as the north
pole from the south" (From Yeravda Mandir, pp.39-40).

13. For instance, Dworkin (1977: 142-49) has argued that the concept of a right
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 Gandhi and Law:The Philosophical Stakes

en
against the government is inseparable from the institutional control placed on
to
the majority and its representatives in a constitutional system. zzr
a>
14. I think I need to think this out more in the context of Dworkin. See also his
Freedom's Law (1996) and our fn.16 below. But clearly this notion underlies, for
a>
example, the German Federal Constitutional Court's conception of itself as "an 00.
organ of law, not of politics", notwithstanding the inevitable political ramifica CL
(D
tions of its decisions. See Limbach (2001).

15. On the antinomy between law and politics, see the section entitled 'Lawyers and
Satyagraha' in the Kher compilation (pp. 123-209). But note the arguments that
follow in the text above.

16. Cf. Gandhi: "Once a law is enacted, many difficulties must be encountered
before it can be reversed. It is only when public opinion is highly educated that
the laws in force in a country can be repealed. A Constitution under which laws
are modified or repealed every now and then cannot be said to be stable or well
organized" (Satyagraha in South Africa). There is, in the current jurisprudential
discourse, a debate about two positions - incidentally, taken to be two versions
of legal positivism - each turning on the question of the relations between law
and morality. I am not entirely sure this debate about the relations between law
and morality is a productive one, although the beginnings of the debate can be
found in the responses offered by different theorists to Dworkin's arguments
against legal positivism. See Dworkin (1977). Very roughly, Dworkin has argued
that morality plays an essential, non-discretionary, role in legal reasoning; it
follows that at least some moral standards are necessarily part of the law.
Dworkin also maintained that since these moral standards are not part of the
law as a result of some 'pedigree' test, positivism is false. Some positivists
conceded that in some legal systems the law includes moral standards; this,
however, they argued is an empirical finding, true perhaps of all 'developed'
legal systems, but not a necessary truth about law, for one can easily imagine a
legal system that contains no reference to morality. They went on to reject
Dworkin's second point, by arguing that in legal systems that include moral
standards, these are part of the law in virtue of the acceptance of those moral
standards into the legal system through something like Hart's 'rule of recogni
tion'. See Hart (1970). Among other things, the latter is arraigning against the
idea of treating law as command (for, according to him, the bulk of legal rules
are not in the form of prescriptions). See also Raz (1979), for whom the law
cannot incorporate morality, which is to say that moral standards cannot
become legal standards. Therefore whenever the law refers to morality, the
correct explanation is not that moral standards become part of the law, but that
there is a gap in the law, and the law directs the adjudicator to some non-legal
standards upon which decision should be made. But note the turns of our text
above. The context, besides, may be interesting and/or important. For
Habermas: "In Kant and in early liberalism, there is a conception of the rule of
law which suggests that the legal order itself is exclusively moral is character, or
at least is a form of implementation of morality. This assimilation of law and
morality is misleading" (ibid.: 252). Note also that Habermas is here responding
to a question concerning how one ought to understand law and morality in
modernity.
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