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Main Problems in Liberalism

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Political Ideologies Contexts, Ideas, and Practices
 
Professor. Arvind Sivaramakrishnan Department of Humanities and Social Sciences Indian Institute of Technology,
 
Madras Lec 12
 
Main Problems in Liberalism Liberalism
 
Lec 5 Rec 16 Oct 2019 44:41
 
Now what are the main problems in liberalism? We just encountered one, and we have seen that there can be a liberal response to it. But liberalism shows even - by responding despite problems - shows that it offers a very great deal. It requires that we do not impose moral, social or political systems or ideologies or schemata on people. It requires that we accept and tolerate individuals’ rights to choose their ways of life freely.
 
It requires that we protect the rights and freedoms that people have, so that they can make their own decisions and choices. But can liberalism fulfil these promises? It can some of the time. What are the problems, some of them conceptual? First of all, abandoning any substantive ideology; liberalism understandably claims that we must not, requires that we do not, impose any substantive ideology on anyone and that we accept a very wide range of ideologies and approaches to life.
 
That is understandable in view of the horrors which any number of imposed ideologies and religions and other moral and political systems have caused; we are very familiar with those. But the problem is that the liberal position itself amounts to a substantive ideological commitment. In effect, it is an ideological commitment not to impose an ideology and this causes problems. It implies, for example, not intervening when a system or an individual causes serious harm in the service of an ideology. Liberal theorists are not always aware of the problems they face here.
 
 
We have already mentioned John Stuart Mill's goal for liberal values; he actually called for these to be imposed on India, right, by force. He thought Indian culture could not understand liberal values. John Stuart Mill, the, the great nineteenth-century liberal, said that liberalism would have to be imposed on India by force. We have also noted the contradictions in liberal interventionism - the claim say to bring freedom to other nations by invading them and in effect, occupying them, and taking, taking them over.
 
We noted that in the last two or three lectures,; but what then about specific rights in liberalism, the right to choose? This is, as we have seen, the individual is a basic unit of society, and is 2 therefore the holder of the right to make free choices and decisions, whether on occupation, way of life, moral and political attitudes, sexual preferences and orientation, and so on.
 
The idea is highly attractive, particularly in, in response to the kinds of contrast, contrast to the kinds of coercion which entire systems often impose on people, and therefore this idea of an individual right to choose has had an enormous impact on entire societies around the world. It has also given rise to very extensive protections in law and in institutional systems.
 
The example I gave you of the youngsters who came to see me to ask, asked me to open up a room in that college that they could conduct their Namaz at lunchtime on Friday - it is a good example. They were perfectly entitled to do so and English law specifically allows for that. Incidentally, we had no dress code in that college and the students could come in, in just about anything they liked; in hotter to whether we the staff often came in, in shorts, and casuals because good weather in that part of the world is something you try and make the most of when you can.
 
Not everyone, not everyone on the faculty liked it. Not all staff liked it, but many of us did. Extensive protections have resulted from the recognition of individual entitlements to various rights under liberalism. But what happens when we see the individual as a chooser and nothing else? Are we then, how then do we evaluate the choices and decisions individual make? Because if we start evaluating people's choices and decisions, then we are at risk of infringing their rights to choose if we start saying, well, that was a good choice, that was a bad choice or that is going to have rotten consequences or whatever.
 
Where at least in principle, opening up the possibility, obviously creating the possibility that we are going to restrict their choices or infringe their rights to choose and yet if we accept the right to choose as inviolable as absolute, then we are also unable to see what is, or is not, a free choice. We are unable to evaluate whether someone themselves, or ourselves, is manipulated or coerced, or brainwashed or deceived, or whether our decisions are a result of prejudice, misinformation, ignorance...
 
You know, we could even choose to stuff ourselves with junk food or consume other harmful substances or anything else, and these are significant issues in liberal systems of law. But conceptually, if we were to raise any questions about such conduct, we would have to investigate the substance of the actions, the context, the backgrounds and reasons, the wider social and political systems and context and so on.
 
The result is that if we take the right to choose as an absolute then liberalism leaves us without any of these other resources. All we are able to protect is the right to choose and that then means good, bad choices, harmful choices, the context of choices - the background disappears. Now I take that from Ronald Beiner’s excellent book on liberalism, published about 25 years ago.
 
Well, what about the concept, concept of rights? Rights are fundamental to liberalism. But how then is liberalism to protect the individual, this bearer of rights, constitutions, and they are very significant, we are very familiar with major cases in which rights have been asserted or denied or altered and so on.
 
But for liberalism rights are a fundamental concept and yet are riddled with problems. Consider, for example, the right to freedom of expression. This has even resulted in a Supreme Court decision which indirectly confirmed that students at George Mason University had the right to hold an ugly woman contest on campus.
 
The background is this: students did hold this contest, it was men, unsurprisingly. The there was a public outcry over it. I understand that they made a formal apology. The case is detailed in the United States educational literature on the net. But I if I am not mistaken, the university then sought to impose formal disciplinary proceedings. Again, if I am not mistaken, if I remember the case correctly, the students considered that this was punishing them a second time for the same, for the one offence.
 
They took the case to court and won in, if I am not mistaken, a United States Federal Circuit Court ruling, which said that this was double jeopardy - they were being tried and potentially punished twice for the same offence, and that this was unacceptable. One implication is that the ugly woman contest is therefore permissible under the United States Constitution, under the First Amendment.
 
 
Well, the fact is that this kind of context and this kind of contest, this ugly woman contest, may stand as a right. But it exposes the organizers’ misogyny and hatred of women. That is the only thing it does expose. But under liberal principles, the only thing counts is the right. That is one implication of the ruling. Similarly, what about a right that is not worth having? For example, in certain states of India, there is a practice of appointing unqualified teachers on very low salaries in place of qualified teachers.
 
If I am not mistaken, this practice was initiated by certain states after the passing of the otherwise thoroughly laudable Right to Education Act that was passed in 2009 and gives legal expression to the constitutional right to an education. But certain states, very soon after that, started appointing unqualified teachers instead of qualified teachers. They paid them far less, in fact, there is research which quotes some of these teachers are saying they were so badly paid that they could not even bribe their way to better jobs or to better-paying jobs.
 
Now, what was going on here? If we look at the context of this particular employment practice, we find that the one of the aims of the act was to increase enrolment in schools - absolutely audable, and the states concerned did increase enrolment in schools vary greatly. They said, in effect, you told us to get kids into schools. We did. We are now employing unqualified teachers.
 
But was that then a way of getting around an implicit requirement of the Act. The unqualified teachers were just that - unqualified, and presumably were simply not experienced, qualified, in the ways to teach the specified syllabus to the pupils. So, the states were meeting the formal requirements of enrolment, of increased enrolment. But were they then getting around the intended substance of the Act?
 
So, were the students, were the pupils then getting a right observed, yes a right to access to school, right of access to school, but not a right to an education. Is this a right that is worth having anymore, we have got the right of access, but not a right to an education. That is not being discharged in respect of us. So, there is no point having a right to something which it simply is not worth our while to have.
 
But that means examining the content of the right itself and how it is delivered. Well, there are even more problems with the idea of rights. We’re familiar with this, the right to freedom of expression often clashes with the right to freedom from expressions of prejudice and bigotry. But if rights are absolutes, then clashes of rights cannot be resolved within liberalism. Well, the examples are endless.
 
There are any number of them; the right to traditional way of life is often claimed. But the traditions in question might, and they often do require, say the subjection of women, or they may compel compliance in other ways which violate liberal principles. This has all been thoroughly documented. The difficulty here is that liberalism offers us none of its own resources with which to address clashes of absolute rights.
 
Some attempts have been made to evaluate rights claims against one another with another formula, for example, under calculations of calculations of relative harm or costs and benefits. But this leaves unaddressed the question of how particular things came to be seen as rights in the first place; and this is this approach also accepts that if we can trade off rights in a calculus of some kind, then rights are not absolute.
 
Well, what happens if we then, you know, there is a neoliberal approach which says we’ll leave it to the market to decide. But that abolishes the idea of rights, let the market decide means nothing is a right. It ignores the fact as well, that the market itself depends, as Adam Smith knows very well, on non-market values such as contracts and the enforceability of contracts. If a contract is a moral value, is it contained in the market transaction itself?
 
Adam Smith is very clear about that, it is no; but one non-market value, as he says, is the idea that a contract is morally binding. Where does the morally binding nature come from, legally enforceable, is that in the market transaction itself, it is not. Another consequence is that market exchanges themselves depend on trust and confidence. If we do not trust somebody, or if they betray our trust, then the very idea of the market or the practice of the market collapses.
 
Now, there are other ways of trying to preserve the idea of rights against challenges, and one way is something we have already encountered. That is the noted liberal, liberal way of giving a special status to procedural rights, such as the right to a fair trial or free and fair elections.
 
Now these have been regarded by some liberal theorists as absolutes, in contrast to what they sometimes call material rights, rights to employment, rights to public housing, and so on; those are all ruled out by certain sections of liberal opinion on the grounds that they require money and will therefore be the subject of endless disputes over how much somebody is entitled to, and so on, how much has to be spent on them; such things as that, those have been called material rights or economic rights.
 
The distinction between procedural and material rights can look very attractive. But the problem is this: fair trials and free and fair elections and so on themselves require public institutions and a great deal of public expenditure. How much does it cost in public funds to run a general election in India - and would we want to say that less should be spent on those by the state?
This is ensuring the electoral registers are accurate having the civil cervice officials ready in every state in every region to conduct the election, to count the results, to make sure the codes 6 of conduct are applied, though the model code of conduct is, if I am not mistaken, not enforceable. But the candidates do take it very seriously and have to do so.
 
Now all that costs a very great deal of money and we would say rightly, we have to do this right, if the election is to be trustworthy, if it is to be fairly conducted, and if it is be procedurally sound.
 
So, is there any difference in kind between procedural rights and material rights, we still have to spend public money on them, we still have to justify them, we still have to have institutions to protect them, and show that they are carried out correctly, and so on and so forth; and therefore, what looks like an issue in kind turns out to be, among other things, an issue of differences in degree are we. Why is it that we are prepared to spend hundreds of millions, perhaps billions, on running a free and fair election, you know, European Parliament elections, and the electorate where the population is about 528 million or something like that.
 
The electorate is likely to be about two thirds of that. I’m guessing here. But running a European Parliament election costs money around the whole European Union, and think of the United States. Yes, we know the candidates spend a very great deal of money, but they are allowed to under US law.
 
But running the election itself, with a population of 330 million or so and an electorate of about 220 million, itself requires public funding. So, it could well be, as my former colleague Raymond Plant and some of his colleagues have argued, that there is no difference in kind between procedural and material rights.
 
If rights are to be taken seriously, we are going to have to spend public money on them and we will need public institutions to protect them and ensure that they are observed and so on. So, there is a further question here on top of that; are we in any position to choose if we are seriously sick or starving - we’re in no position to start choosing in the way liberalism seems to think we should be.
 
Most contemporary liberals seem to have accepted this point. If we are seriously sick or starving, we are not choosing beings in the way liberalism imagines us to be. Even a very extreme proponent of liberalism, like Friedrich von Hayek, who has often been called libertarian, advocates a social safety net. The implication is that as the economy expands, and of course, an economy run on Hayekian lines, according to Hayek could only get better and better.  
 
So, the implication here is that as an economy expands, the social safety net will also expand. But Hayek regards the expansion or contraction of an economy as a natural law, because we cannot actually know the outcome of our actions in the overall market. But that is a philosophical claim about the nature of knowledge. It is an epistemological claim and Hayek is well aware of its dangers.
 
He himself says we must not tell people that the outcomes of the market are very much a matter of luck and he says we should not say that because they will lose the incentive to work. This is well recognized and he said the quotation is not that hard to find. But neoliberalism in particular, Hayek is a particularly extreme example, has been something of a fundamentalist religious crusade.
 
It is been very similar to those and that means that there is still no widespread admission of its comprehensive failures. But it also means that major aspects of the global trading system are invisible to neoliberalism, or neoliberal theorists, things like the weaponization of trade - and that is actually a term used by the people who have written about this, Harding and Harding; and the application of sanctions and so on also, counts import duties and tariffs selectively devised and imposed is a of form of weaponry.
 
Well, what does this mean for liberalism as a whole, in all the forms it is before us, you know, it promises a lot. In practice, it has been at least in part responsible for the global recognition that in democracies, political power needs to be justified, legitimized and controlled by public processes and institutions. Liberalism has, however, probably never been implemented fully in any of its forms.
 
Neoliberalism has been severely criticized since it’s revival in the early 1980s. It’s had even more criticism since the 2007 to 9 global financial crash and even international financial institutions have admitted that many of the precepts of neoliberalism do not work. For example, the International Monetary Fund has acknowledged that the policies it imposed on Greece in 2015 both would not and could not work, even the IMF admitted it. That is in a book written by the former Greek finance minister Yanis Varoufakis.
 
But on top of that, detailed arguments have been put that neoliberalism in particular does not replace the state with the market. It amounts to a takeover by commercial financial bodies and very large manufacturing corporations. This again has to do with the idea that the only way to resolve any issue is to leave it to the market.
 
 
 
The upshot is that major bodies in markets have effectively been able to shape markets as they wish. The examples are legion. In 2013, the Vodafone Corporation held it was not liable for UK tax because it is sold its, holding in the US Corporation Verizon for 84 billion pounds, 84 billion, and the relevant share was owned by a holding company based in the Netherlands and was therefore not liable for UK tax. The objection is still maintained that Vodafone is based in the southern English town of Newbury and should therefore have paid tax on the deal and this kind of issue keeps arising.
 
Now, well, what about other forms of other problems with liberalism? Yes, they all share the promise of all manner of freedoms, but they also share the problems; and the main problems are as we have seen, clashes of rights and what amounts to an unstated of unacknowledged dependence on a very substantial theory of human nature. This is the idea that humans are choosing beings above all else, and in fact liberalism delivers us into its own forms of captivity - that is, forms created by the very terms on which liberalism is founded.
 
Many conceptions of rationality have been involved in liberalism. For example, the idea that we are rational choosers, have been very severely criticized for even gross assumptions about what it is to be rational at all. One utility theorist has even said that our brains are an obstacle to rationality. I think the argument there was that we, we are habituated to act in certain ways and according to this particular applied psychologist, I think that is what he is or possibly a neuropsychologist, according to this particular piece of research.
 
Our brains then develop, if I’m not mistaken, neural pathways, which may then result in our not doing the rational thing as defined by, in effect an economic, economic-rational theory of action. So, our brains themselves become an obstacle to rationality. But that requires that we question the idea of rationality that is at work here. It is not clear that liberalism can actually accommodate questioning what it is to be rational.
 
The idea is that we are all rational chooses, according to liberalism, and therefore, that our choices are in a sense absolutes. Well, it may be slightly flippant of me to suggest that the consequence of this particular piece of work on rationality, this particular piece of research, one implication is that we should then remove everybody's brains. -because if our brains are an obstacle to rationality, surely the rational conclusion is that our brains should be removed.
 
I am being, well, partly flippant there. But even the Nazis, as far as we know, did not think of that. As with liberalism, as for liberalism, well, it is that at its best and genuine ideology, a way of 9 thinking, but it unintentionally, but systematically, misleads us. At worst, as in the case of Hayek, it can only be sustained by a gigantic lie. Yes, it involves significant misconceptions, or it leads us into significant and irresoluble problems on its own terms.
 
It has promised an enormous amount it has had an enormous undoubted impact, it is had enormous successes, particularly when rights under liberalism have been claimed in response to systematic oppression. But rights themselves create further problems and the failures on the part of liberalism to deliver are not only empirical but also conceptual.
 
So, that concludes our topic on liberalism, how liberal ideas occur in contemporary democratic states and are often highly significant and how these ideas pose significant, equally significant, questions for other kinds of ideas about society and human conduct. We are going to look at an example of a case in the Supreme Court of India.
 
That is the case of Shafin Jahan versus Ashokan and Others, in which the Supreme Court issued a ruling in March 2018, having considered the case for, if I am not mistaken, about a year, certainly for several months. We’ll then look at two analyses of the judgment, both of which recognize good things achieved by the judgment, but are also severely critical and we’ll try and reach some kind of conclusion about the whole episode.
 
So, these are the sources which we shall use, certainly the Supreme Court judgment itself and that is freely accessible in PDF form on the net. There is an article by Apurva Vishwanath in The Print, which I think is an online journal, and it is freely accessible on the net; and there is an analysis by Suhrith Parthasarathy of the judgment of the case and the judgment in the Hindu. Suhrith Parthasarathy is a lawyer who practises in the High Court of Madras and has written this among his other articles for the Hindu and that too is available with, I understand, limited free access but it is accessible. ,
 
So, you will have the, this list as part of part of your materials for this particular concluding topic, concluding part of the liberalism topic. Well, we’re going to start by looking at the facts of this case, the case is Shafin Jahan versus Ashokan and Others, and it is often more popularly known more widely known as the Hadiya case, because of the name of one of the people involved, perhaps in the central, the central figure in the case.
 
So, we will start with an account of events; the main facts are reasonably well known. A woman aged 24 was studying for a homeopathy degree. She converted to Islam, and in the process changed her name from Akila to Hadiya. She also moved into a hostel run by an Islamic 10 organization In January 2017; Hadiya’s father Ashokan, claimed in the High Court of Kerala that his daughter Hadiya was being illegally detained in the hostel.
 
The court rejected that claim, that was in January 2017. In August of 2017, Ashokan alleged in the Kerala High Court that Hadiya was at risk of being taken out of India. In December 2017, with that second case still in progress, Hadiya marriage Shafin Jahan - this was a man she had met during her time at the homeopathy college. The court annulled Hadiya's marriage.
 
It said she was, I quote, ‘weak and vulnerable, capable of being exploited in many ways’ - end of quotation; the Kerala High Court also put Hadiya under her father's custody. Now Shafin Jahan, the husband, appealed the decision to the Supreme Court of India and the Supreme Court took the case, if I am not mistaken, sometime in 2017 and it considered two questions. The first was Hadiya's capacity or incapacity to make a decision, and the second was whether or not she had been coerced into the marriage with Shafin Jahan.
 
So, those were the two main questions that seem to have been the focus of the Supreme Court's concern. We’ll look at them turn by turn. The first question was that of incapacity to make a decision - was Hadiya incapable of making a decision on changing her faith and implication also on getting married? Now analysing this question involved the Supreme Court in close examination of the existing Indian case law.
 
As it happens, much of the case law in this kind of matter is inherited from decisions in the British House of Lords over a fairly long period of time. The Supreme Court bench found no reason to doubt Hadiya's capacity to make a decision. The second question is that of whether or not Hadiya was coerced into her marriage; the Supreme Court heard Hadiya's own testimony and in so doing, in hearing her, the Court upheld the principle of habeas corpus; and the bench concluded that Hadiya had made her decision to marry Shafin Jahan entirely freely and of her own will.
 
So, she was in no way incapacitated in making a decision, and she made the decision to marriage Shafin Jahan entirely of her own free will. So, the Supreme Court quashed the Kerala High Court's decision and it noted many errors in the lower court’s reasoning. The Supreme Court decision is about 60 pages long and very clearly written; it is very accessible. Now, some key results of the decision have to do with the Constitution of the Republic of India.
 
One of these is that the right to marry a person of one's own choice is a fundamental right under Article 21 of the Indian Constitution. A second result is that matters of belief and faith, including 11 whether to believe, are at the core of constitutional liberty. That is a quotation from the judgment -I repeat it - ‘matters of belief and faith, including whether to believe are at the core of constitutional liberty’.
 
The third result, another quotation, ‘the Constitution exists for believers as well as for agnostics.’ Those are things that the Supreme Court itself said. Now, those rights and principles are grounded in liberal political thought, in particular, as article 21 says, the right of, the rights of the individual. Now the Supreme Court ruling clearly upholds and further specifies the scope of Article 21 of the Indian Constitution.
 
So, it upholds article 21 and further specifies the scope of that article, Article 21 of the Constitution - but the court was sharply criticized, despite being widely praised for ultimately upholding article 21 and for showing us more specifically in what kinds of contexts article 21 is to be upheld and is to be observed and followed; but the court was nevertheless sharply criticized. For what, certainly for omissions from the judgment and for what seemed to be unnecessary procedural delay.
 
Well, we need to look at these criticisms in more detail. The first one the first set of criticisms is here. In an article by Apurva Vishwanath, written in 2018, published in an online journal called The Print on the thirteenth of April 2018 and the title is, Before you cheer how the judgment, spare a thought for what it did not say’. You will get the link to the judgment anyway as part of the materials for this, for this lecture. Well, what did the judgment not comment on? It made no mention of what Hadiya endured during her 10 months of near-captivity in her parents’ home. During that time, she was not allowed to use a cell phone, she was allowed no access to the internet, and apparently was allowed no visitors except in the presence of her parents. Vishwanath than makes another point - Hadiya are repeatedly said during her testimony in the Supreme Court, I want my freedom.