A democratic death knell for individual liberty

A referendum is a bad idea

Caught in a political tussle with the Union government that has administrative and “superuser rights”, Delhi’s Aam Aadmi Party government has thrown up the idea of a referendum to decide whether the union territory should become fully a state. Since there is no scope for a referendum within India’s constitutional structure, everything about the proposal—from who are the voters, to who will conduct it to what does any result mean—is an open question.

Regardless, the proposal for a referendum is dangerous, poorly conceived and might destabilise India’s politics more than anyone has imagined. Not for the textual reason that the Constitution does not permit it, but for the deeper, conceptual reason as to why the Constitution does not permit it.

There are two broad arguments for representative democracy: first, the practical transaction costs of taking every issue to all the voters are massive for anything larger than a community of a few thousand people. It would be prohibitively expensive even for a small Indian state to decide every issue by asking voters directly. Technology reduces costs: it is possible that in the coming decades, the availability and adoption of technology will make referenda rather inexpensive to conduct.

So should human civilisation move ahead to direct democracy when transaction costs of referenda are lower than the transaction costs of representative democracy (all that money spent on parliament, legislators and so on)? Not quite. That is because the second argument for representative democracy–even with the quality of legislators that we often detest–is that direct democracy can lead to highly illiberal outcomes. It would be dangerous enough in a homogenous, egalitarian society. It would be extremely risky in a highly diverse society like India’s. Politics is often a contest for relative power among different communities, quite often expressed through imposition or prohibition of their mores. In India we are used to thinking in terms of the majority and minorities in ethnic-religious terms. This is bad enough. But a majority is merely a number, and it is possible for majorities and minorities to form over political issues. Even in polities divided along religious lines, have we not seen conservative elements of religious communities come together to proscribe individual liberty?

That is the danger. The biggest casualty of direct democracy will be the liberty of the individual. The Indian Constitution is a balance between a democracy that expresses the will of the majority, and the fundamental rights of the individual. Weaken this edifice and individual liberty will be the first against the wall.

Referenda are dangerous not merely because people in some states might choose to secede from the Indian Union, but really because rule-by-referenda will be the death knell for the rights of the individual. There is no safeguard for liberty in a referendum.

The AAP government in Delhi would do well not to stoke fires it cannot control. If it does want to assess public preferences–for administrative or political purposes–it can conduct large scale public consultations that ask thousands or hundreds of thousands of people for their opinion. Results of such a consultation will have no constitutional basis, but can go some way in bringing in popular sentiment into public policy.

Related Posts: Dogma, Reason & Democracy; and how to escape the tyranny of the ignorant.

Dogma, Reason and Democracy

How to protect Reason from democratically-enforced dogma

Democracy is popular. Other than self-serving polemic promoted by authoritarian regimes or by dispossessed elite, it is rare to find anyone criticising democracy. For thoughtful people, democracy is, as that Churchill cliché goes, “the worst form of government except for all the others.” Yet some—perhaps even a lot of—scepticism is warranted in terms of democracy’s role in the long war between Dogma and Reason that has been in progress for much of human history.

Indeed, it is possible to argue that most—if not all—big political debates are essentially different forms of the fundamental conflict: should humans follow some form of dogma, or use knowledge, reason & critical reasoning in making decisions. What individuals do in their private lives is less of a concern. How they decide on public issues matters a lot more. Should slavery be banned? Should abortion be declared criminal? Should women be allowed to willingly immolate themselves on the pyres of their dead husbands? Should cloning be allowed? Should we allow foreign direct investment in retail? Should voting rights belong to citizens or to all people living in the country? The most vexing questions of politics are essentially dogma vs reason, playing out in different contexts.

So what role does democracy play in this conflict? Do democratic states always tend to push the moral envelope towards greater reason? For instance, aren’t democracies more liberal than non-democracies? Perhaps yes. But this might merely be a temporary correlation: are they liberal because they are democracies, or democracies because they are liberal? We can’t say for sure, as there are other factors at play that might have made societies more liberal, democratic or both.

Bryan Caplan has a compelling argument on why democracies fail:

“In the view of most democracy skeptics, it fails because it does not do what voters want. In my view, democracy fails because it does what voters want. In economic jargon, democracy has a built-in externality. An irrational voter does not hurt only himself. He also hurts everyone who is, as a result of his irrationality, more likely to live under misguided policies. Since most of the cost of voter irrationality is external—paid for by other people—why not indulge? If enough voters think this way, socially injurious policies win by popular demand.[The Myth of the Rational Voter: Why Democracies Choose Bad Policies]

Mr Caplan’s argument is that people have systematic biases that, unlike random biases, do not cancel each other out. In other words, if biases towards colour of shirts were random in the electorate, then they would cancel each other out and no particular colour would be more likely to win. However, if people had a systematic bias towards purple even to a small degree, the electoral verdict is quite likely to go purple. (Read the book to understand more deeply how this happens)

This argument, in itself, is a powerful indictment of democracy. It explains why democratic governments choose policies that are bad for them. If we factor in “education” (in the sense of reasoning, critical thinking and open-mindedness) then democracies can amplify dogma, in extreme cases, into a vicious cycle where society surrenders to dogma.

Consider a democracy where a simple majority of the people have an unshakeable dogmatic belief that Everyone Must Wear Purple Shirts. The rest of the people have a shakeable belief in everything and make up their minds based on available facts. Since the facts do not point to any advantage of purple shirts, they disagree with the Dogmatists who insist on purple shirts. Let’s assume everyone votes. It is quite likely that the politician who runs on a “Wear Purple” ticket is likely to defeat her competitors. And once she acquires political power, depending on her political strength, she is likely to change public policies to promote the wearing of purple. She is likely to focus on the education system, introducing purple into the curriculum so that she has an inherent advantage against the Reasoning politicians. In the future, politics will be about the shade of purple that people must wear.

In this highly simplified example, Democracy worked, the majority got what they wanted, but Reason lost. The real world is more complex, but the fundamental argument remains valid. To the extent that people subscribe to dogmas, democracy is a risk to Reason and values that derive from it.

Mr Caplan sees democracies failings as an argument for governments to let the market determine economic outcomes (his book consciously limits itself to economics). Given the risk democracy poses to Reason*, and therefore, to itself we should go further. The zeroth requirement is for democracies to be constrained by a republican constitution that affirms fundamental rights.

First, those who prefer a slightly more reasoning society than a slightly more dogmatic one must unequivocally defend freedom of speech and expression. Unpopular and dissenting voices must not only be tolerated but enjoy absolute protection. As my colleague V Anantha Nageswaran noted during a recent conversation on this topic, actors in ancient India enjoyed total freedom and protection for what they said on stage. Likewise, court jesters. Such freedoms are protected in many democracies, but your mileage varies depending on which democracy you are speaking out in. Freedom of speech and expression must be protected in law and in practice.

Second, those who believe minds should not surrender to dogma must hold up the freedom of education. This means that while the government can pursue uniform standards, syllabi and curricula in its role of delivering a public good, it should not be allowed to monopolise the curriculum. People should be free to start and send their children to schools of their choice, teach and learn curricula of their choice, with no interference by the government or self-appointed custodians of public values. If this means some parents send their children to religious schools, nature schools or witchcraft & wizardry schools, so be it. It would be a small price to pay in the defence of Reason.

Third, the separation of powers into the legislature, executive and judiciary is not only for the purpose of ensuring that no single entity is too powerful. It charges the judiciary with the duty to defend the constitution and dispense justice without reference to what is popular. Here again, your mileage varies from jurisdiction to jurisdiction, from time to time. In recent years we have had the US Supreme Court under John Roberts declaring it is not the job of the Supreme Court to “protect people from the consequences of their political decisions”. In India, while courts have been criticised for judicial activism and overreach, cases of judicial populism have received lesser attention. Trials by jury suffer from the defect that they subject questions of guilt and innocence to popular mores. This doesn’t mean trials by judges escapes the defect completely: judges are cut from the same cloth as jurors, and both from that of their compatriots. One way to reduce such risks might be for judges to come from other jurisdictions—rotate them more frequently across states, and bring in foreign judges from similar jurisdictions.

* Disclaimer: In a contest between Dogma and Reason, The Acorn stands on the side of the latter. Hence the implied value judgement.

Robbery is not right

The ‘rights-based approach to development’ is immoral and illiberal

Why was there ideological collusion in the passage of a bill that promises ‘food security’ but is certain to severely undermine India’s development path? Several reasons can be adduced—from the electoral to the conspiratorial—but what gave both the terrible bill and the even more terrible scheme it seeks to implement the impression of inevitability was the underlying narrative of a “rights-based approach”. And, as Narayan Ramachandran writes, “[the] apostle of the rights-based approach in India is the National Advisory Council (NAC).”

Over the last decade, the NAC’s narrative of a “rights-based approach” to development has acquired dominance. It has pervaded government policy because Sonia Gandhi, its chief and Congress party president, in all likelihood, genuinely believes in it. The power of narratives is such that even if you replace Mrs Gandhi and her NAC with another political leader and his or her own clique, they will be compelled to persist with the same policies as before, or undertake the Hanumanian task of countering the rights-based narrative before rolling back or changing tack on the massive entitlement schemes. (See my previous post on this).

Narayan argues that the rights-based approach is the wrong development model for India. In fact, “rights-based approach” is a misnomer. It is a clever way to refloat the failed policies of socialism under a new, fashionable but dubious political philosophy. In essence, this ‘development model’ identifies an ever-growing list of life’s needs and necessities, declares that they are ‘rights’ and suggests that these be provided by the state.

A lot of well-meaning people are fooled by this sophistry. Since few good people will dispute that people need food, education, healthcare and jobs to live in this world, they become susceptible to the argument that such necessities are rights. Moreover, since a lot of famous people, including Nobel laureates and rock stars, advocate this approach, the notion that such things are rights acquires wings.

Yet for all the celebrity endorsement, warm fuzzy feelings it creates, the so-called rights-based approach is immoral and illiberal. The only true rights are those that do not come at anyone else’s cost. Preetam’s right to life, equality, freedom and property do not come at Palani’s cost, and vice versa. The state might have to incur a cost to protect these rights, but not to provide them. [Meet Preetam and Palani, in Redistribution as Theft]

The entitlements that the NAC-types call ‘rights’ are different. It costs someone something to provide them. If Preetam and Palani are the only two citizens in a hypothetical state, the cost of providing Palani’s right to food, education, healthcare and jobs must be borne by the state. If the state, in this example, is financed by Preetam’s tax payments, Palani’s entitlements come at the cost of further infringing on Preetam’s rights (in this case, the right to use his money as he pleases).

It is sometimes reasonable to argue that Preetam must be made to pay for Palani’s necessities in order to have a equitable society. Or because Palani might be contributing to Preetam’s welfare in other ways. What is wholly wrong, though, is to contend that food, education, healthcare, internet connections, jobs and suchlike are ‘rights’, in the same way as life, freedom and property are rights.

However desirable, however necessary, if it costs (someone else) to provide, it is not a right. It is an entitlement. Liberal democracies can agree to make some entitlements obligations of the state. But it is important to keep these obligations distinct from rights. The framers of the Indian Constitution made this distinction when they separated Fundamental Rights from Directive Principles. Unfortunately, their successors in parliament lacked the same moral clarity, and proceeded to undermine Rights even as they attempted to rightify the obligations that fall under the Directive Principles.

Because it violates (someone else’s) rights, the rights-based approach is universally immoral. India cannot afford the luxury of this ‘international development’ fashion. The cost of providing an ever-growing list of entitlements is prohibitively large, and will severely undermine India’s future. Right-minded people and political parties (no pun intended) should reject the rights-based approach.

Tailpieces:
1. The Two-Person Test to determine what is a right (also known as the Preetam & Palani Test). If it costs Preetam to provide Palani something (and vice versa), then, however desirable it might be, it is not a right.

2. If we accept the rights-based approach, then we urgently need to legislate the “Right to Richer Spouse.” If every citizen has an enforceable right to marry a richer person, then poverty will disappear fairly quickly. Such a right will take away some freedom from the richer persons, but that’s no different from the rights to food, education, jobs and suchlike. If you find the Right to Richer Spouse absurd or repugnant, just remember that it is based on the same logic as the right to food, education, healthcare, jobs, internet connections and so on…

3. A storified series of tweets on the topic.

Why public protests are proliferating

When networked societies clash with hierarchical states

This week’s Economist has a couple of interesting articles on the proliferation of public protests in recent times—from the United States, to Britain, to Arab North Africa, India and now Turkey and Brazil. It attempts to understand the phenomenon within the frames of democracy and dictatorship, with technology as a key enabler.

Any study of these protests must contend with a simple, central question: given that the protestors’ grievances are not new, why did the protests take place now (roughly since 2010)? Corruption, economic distress, political oppression and elite control of political power, among others, have been around for decades. What changed enough to cause people to get onto the streets to protest?

It is possible to identify a number of factors: youth bulge, urbanisation, size of the middle class, mobile phone penetration and growth of social media are the most important among them. It is highly likely that these factors—in various combinations—have a causal relationship with the eruption of protests. The “why now?” question, can be explained by the fact that social media platforms like Facebook, Twitter are of fairly recent origin. Text messaging over mobile telephone networks is older, but it was only in the last decade that mobile phone ownership increased significantly as a fraction of the overall population. So the availability of technology could explain when the public protests took place.

Technology also suggests a more profound implication. The proliferation of public protests—across democracies and authoritarian states—might be the first signs of a clash between radically networked societies and hierarchically ordered states. (See this talk on radically networked societies.) As I argued in my Business Standard column in December 2011, “the popular legitimacy of today’s hierarchically-structured governments – and the political order they rest on – is under threat in radically networked societies.”

In other words, corruption, bus fare hikes, tree parks or economic policies that the protesters are abstractions or symptoms of the underlying dissatisfaction with the way the people are governed. A networked society is flat, its demands are diverse and often inchoate, decision-making processes are amorphous, and leadership diffuse. However, such a society is governed by a government that operates in a hierarchical manner, top-down and bottom-up, in silos, bound by hard rules and distinct leadership. While a networked society moves fast, a hierarchical government moves relatively slowly on account of its structure. To members of networked societies the hierarchical government appears slow, less responsive and remote, hence lacking in credibility and legitimacy.

The structure of the modern nation-state was forged in the Industrial Age. It now confronts the demands of the Information Age and is increasingly found wanting.

In my column I wrote: “One reason the United States emerged on top of the world order is because it had the best political system for post-Enlightenment industrial age societies. It may well be that the nation that best reinvents itself for the information age will have a shot at being the next great superpower.”

This raises a number of questions. What does a networked state look like? How does a hierarchically-ordered state change itself into a networked state? What does this mean for individual liberty? We do not have the answers yet.

PS. For the record, the Business Standard article I refer to in this post contained a typo that risks changing the entire argument. The sentence in the third paragraph should read “This is not a classical class struggle.” The “not” is missing in the published piece!

Centralism

(With no offence to Forumism)

No, a Centralist is not a shopper who prefers a chain of smart malls sprouting across India. A Centralist “(articulates) his or her worldview from within the existing (constitutional) framework. He also better understand(s) the power of free markets, trade, and economic growth, and are liberated from social orthodoxies.”

Like your seventh standard classmate who stuck things on your back while you were answering the teacher, Etlamatey has pasted this label onto this blogger.

Do read the post, because Mr Etlamatey disapproves of Centralism. And because it’s well-written.

On liberal nationalism

Connecting liberalism, nationalism and realism

Let’s start with an axiom: all individuals are free, and from this freedom, they possess certain inalienable rights. They possess these rights and freedoms at all times, but in a state of nature, their ability to enjoy the freedom and exercise the rights is circumscribed by their individual power. In Indian philosophy, the state of nature is termed as matsya nyaya, or the law of the fishes, a condition under which the stronger fish eats the weaker fish. Thomas Hobbes, the 17th century English philosopher, describes this as the time when “men live without a common power to keep them all in awe, they are in that condition which is called war; and such a war as is of every man against every man (bellum omnium contra omnes).” Life, therefore, is “solitary, poor, nasty, brutish, and short.”

To better enjoy their rights and freedoms, individuals trade-off a part of their freedom for the security offered by a state. Hence Kautilya writes

People suffering from anarchy as illustrated by the proverbial tendency of a large fish swallowing a small one (matsyanyayabhibhutah prajah), first elected Manu, the Vaivasvata, to be their king; and allotted one-sixth of the grains grown and one-tenth of merchandise as sovereign dues. Fed by this payment, kings took upon themselves the responsibility of maintaining the safety and security of their subjects (yogakshemavah), and of being answerable for the sins of their subjects when the principle of levying just punishments and taxes has been violated.[Arthashastra I:13]

In Western philosophy, this trade-off forms the basis of social contract theories. In Leviathan, Hobbes argues that individuals cede all their rights in return for protection to a sovereign who is himself above the law. John Locke, writing after Hobbes, is more moderate: in his view, individuals surrender only some of their rights to a government that rules by the consent of the governed.

This trade-off forms the basis of modern liberal democratic states. The exact implementation differs from state to state, and depends on a number of factors. But most often, the social contract is codified in a constitution. Constitutions are not, and do not have to be either perfect or immutable. To varying degrees, they affirm the rights of the individual and offer an enlightened method to settle the differences between the interests of individuals. In sharp contrast to Hobbes’ Leviathan, modern constitutions also, to varying degrees, make the government itself subject to the rule of law.

The upshot is that the state is necessary for the practical enjoyment of individual rights and freedoms. The survival and security of the state—often termed “the national interest”—is directly connected to the ability of citizens to enjoy their freedom. Put in another way, the “national interest” is the well-being and development of all its citizens.

If we adopt this people-centric definition of the national interest, how should one regard territory? Is territorial integrity uncompromisable? Not quite. To the extent territory is necessary for the well-being and development of all citizens, holding the territory is in the national interest. Where territorial compromises enhance the well-being of citizens, they are in the national interest. In the state-centric formulation, the objective question is whether acquiring, keeping or parting with a particular piece of land enhances the survival and security of the state, or not.

While the establishment of a state allows individuals to enjoy their rights—abridged as they are—the relationship between states remains in the world of matsya nyaya or anarchy. To an extent, the development of international law and institutions like the United Nations allow states to pursue ‘rules-based’ relations. But the ultimate arbiter of international relations is power. It follows that to protect its national interests—whether expressed in the people-centric or state-centric terms—states have to maximise their power relative to others. This results in an international balance-of-power, which can be stable or unstable depending on the power dynamics obtaining at a particular moment in time. The objective of the state then, is to maximise its own power to ensure that the international balance-of-power is in its favour.

This is how liberalism, nationalism and realism are connected with each other. Liberalism (or libertarianism, in its American usage) is concerned about individual freedom. To enjoy freedom in practice, the individual gives up some of it to the state. The state, a nation-state in India’s case, exists to ensure the rights, freedoms and well-being (yogakshema) of its people. So ensuring the survival and security of the Indian state—by maximising its relative power internationally—is wholly consistent with allowing its citizens to live in freedom.