From, courtesy shortindiangirl

…Eliminate the very idea of right and wrong independent of what the government says, and you eliminate not just dissent — you eliminate the very possibility of dissent. That is the first reason truth has political value. Just having the concept of objective truth opens up a certain possibility: It allows us to think that something might be correct even if those in power disagree. Without it, we wouldn’t be able to distinguish between what those in power say is the case and what is the case.

The second reason truth is politically important is that one of our society’s most basic political concepts — that of a fundamental right — presupposes the idea of objective truth. A fundamental right is different from a right that is granted merely as a matter of social policy. Policy rights — such as the right of a police officer to carry a concealed weapon — are justified because they are means to a worthwhile social goal, like public safety. Fundamental rights, on the other hand, are a matter of principle, as the philosopher Ronald Dworkin has famously put it in a book by that title. They aren’t justified because they are a means to valuable social goals; fundamental rights are justified because they are a necessary component of basic respect due to all people. Fundamental rights, therefore, override other political concerns. You can’t justifiably lose your right to privacy, for example, just because the attorney general suddenly decides we would all be less vulnerable to terrorism if the government knew what everyone was reading, buying, and saying. The whole point of having a fundamental or, as it is often put, “human right,” is that it can’t justifiably be taken away just because a government suddenly decides it would be in our interest to do so.

It follows that a necessary condition for fundamental rights is a distinction between what the government — in the wide sense of the term — says is so and what is true. That is, in order for me to understand that I have fundamental rights, it must be possible for me to have the following thought: that even though everyone else in my community thinks that, for example, same-sex marriages should be outlawed, people of the same sex still have a right to be married. But I couldn’t have that thought unless I was able to entertain the idea that believing doesn’t make things so, that there is something that my thoughts can respond to other than the views of my fellow citizens, powerful or not. The very concept of a fundamental right presupposes the concept of truth. Take-home lesson: If you care about your rights, you had better care about truth.


Posted on September 13, 2004, in Uncategorized. Bookmark the permalink. 17 Comments.

  1. I liked the entire article, and agree with his basic stated position, but I do wish he had refrained from confusing fundamental rights with human rights. The latter ,by their very definition, include cultural, economic and social rights, some of which are *not* fundamental rights. Fundamental rights are basically rights which negative in nature, they are the protection of an individual’s rights to life, liberty and property from encroachments by others. Human rights, in contrast, are often positive in nature as they seek to ensure a particular quality of life.

    • Interesting point. But it’s a fine line, I would think. And possibly, even a question of perspective.

      What do you think same sex marriage? Is it a human right or a fundamental right?

      If I may ask, how did you land on my blog? We don’t seem to have any common friends.

      • It’s not that fine a line, at least not for a student of political science and political philosophy, as it marks the gradual change of liberal philosophy from l’aissez faire to a more socially responsible ‘positive’ concept. But I do remember the amusement I used to feel at the thought that anybody who wasn’t studying the discipline would consider us crazy to debate all these teeny-weeny distinctions… πŸ™‚

        What do you think same sex marriage? Is it a human right or a fundamental right?

        Well the very term ‘same sex marriage’ seems to be an attempt to classify the concept as a human right, the abrogation of which traditionally has never created as much emotional resonance as a fundamental right. However, the concept itself refers to an off-shoot of one of our fundamental rights, the right to liberty.

        An individual’s right to marry, or not marry, is a part of the individual’s right to liberty. We all have the freedom to choose our professions, home cities, friends and partners. And this right is certainly not dependant on one’s sexual preferences. All this fuss about same-sex marriage is nothing more than the government’s attempt to abrogate the freedoms of one sub-group, chosen on the basis of their sexual preference. Frankly, that makes about as much sense as abrogating a right on the basis of hair colour or skin colour, and is equally heinous.

        If I may ask, how did you land on my blog?

        Via Beatzo’s friends page. πŸ™‚

      • Hmm…I haven’t really made this distinction before. At least, not consciously. Will have to reflect on this a bit more, though I have a gut feel that there will be more than a few grey areas between the two.

        Thanks for the comments.

      • Oh, you would find many a grey areas between the two, and a lot of overlap as well. It all depends on which ‘ism’ seems more ‘true’ and ‘natural’ to one. Further confusing the issue are the practical applications of these theories in terms of different constitutions all over the world, and what these constitutions classify as the fundamental rights of their citizens [the right to property is not the fundamental right of any Indian, at least not since 1971]. And then there is the United Nations – it doesn’t care much for the distinction between fundamental and human rights and classifies all the rights as human rights, which might perjhaps explain why it is so hard to co-ordinate a global strategy to ensure these rights.

      • PS – Something I meant to ask you when I first read the entire article: Have you read any Ayn Rand? She makes one of the best cases for the need to respect the objective truth.

      • I haven’t read Ayn Rand. Truth to tell, have refrained from reading her, ‘cos from what people have told me, hers is a mostly supremely rational, non- spiritual approach to philosophy.

        And my personal belief is that any philosophy that does not take into account a higher order meaning/ spirituality is convenient at best, even if logically convincing from many perspectives.

        Of course, it is probably not right on my part to make such a comment without reading her, pre-judged prejudice almost, you could say. Maybe one of these days, I will read her, and make my own judgement.

        Btw, any particular essay/reading you would recommend on the distinction between human rights and fundamental rights?

      • I am not aware of any one piece which would discuss the differences between the two concepts. What I’d recommend is that you visit a college library, get your hands on some political theory text which discusses the development of the concept of rights over the last few centuries. That would provide a clear enough overview, and you’d have references available for further reading if you’d like to pursue it.

        If you’d ever like to explore Ayn Rand’s philosophy, I’d suggest that you start with _Atlas Shrugged_. The novel best exemplifies her philosophy. She has written a lot of non-fiction as well, but almost every position therein is but a natural extrapolation of the ideas expressed in her novel.

        Personally, I would not qualify her as a non-spiritual philosopher, not when the core of her philosophy is nothing more than a paean to the human spirit. The only thing is she doesn’t feel the need to look beyond the human spirit. Nor is her philosophy convenient – it is passionate, rational, exacting, but it is definitely not convenient. πŸ™‚

  2. Interesting arguments πŸ™‚ Here’s my opinion on this issue:

    From what it appears, the distinction between human and fundamental rights is legal and political. Fundamental rights are those human rights that have been adopted by a nation as “fundamental”, and legalized it by incorporating the same into the constitution.

    In the same way, a fundamental right can be taken away by a nation. A mass removal can happen through an ammendment of the constitution (such as article 370 which removes the right to property in J&K), and an individual removal can happen through a due process of the law (such as attachment of individual’s property to the court, or pronouncing the death sentence on an individual).

    Human rights are highly subjective – democracy may be considered a basic human right in the west, and therefore adopted as a fundamental right. This need not be the case for middle east, or other countries. And this applies to same-sex marriages too. Whether it is an offshoot of the right to liberty therefore becomes a question of law and not a question of rights, for the basic right to liberty itself arises from only law.

    • I think it’s not right to say that the basic right to liberty arises from only law.

      Some human rights are subjective, I agree. Maybe, one way to look at it is, human rights which crown individual benefit over social/community benefit, should be thought through more carefully before enshrining it as a fundamental right.

      From that perspective, probably Article 370 could be justified, given the circumstances. Similarly, in the case of a death sentence on an unrepentant rapist. I am not saying this will eliminate all grey areas, but maybe this is a resonable approach to the rights issue.

    • the basic right to liberty itself arises from only law.


      But that depends on whether you believe in the legal theory of rights or the theory of natural rights. I much prefer the latter and do believe that all men are endowed with certain inalienable rights, and that it is the government’s duty to ensure the same. The basic, crucial, inference being that certain rights are mine by birthright and the government is duty-bound to protect them.

      If we leave the realm of political theory and talk about its application in the Indian system, then Mrs. Gandhi’s govt. thought that rights could be taken away with impunity. But when the right to property was amended out of the fundamental rights, the courts passed a ruling holding that our fundamental rights constitute the basic law of the constitution and could be tampered with further. That has held to this day.

      I am not aware how Art. 370 removed the right to property in Kashmir. A far as I know it mentions nothing more than the details of the administration of the state of J&K. It was a rather stupid idea, but then I am hardly a fan of Nehru’s Kashmir policy. πŸ™‚

      And as for same-sex marriages, I cannot conceive of any legal reason for a secular democracy to consider them anything more than an expression of the fudamental human right to liberty. πŸ™‚

      • I think I have been misunderstood. I speak from a practical viewpoint when I say that the right to liberty arises from law. If you belive in natural rights theory, you would say that such a such a right in inalienable and therefore not subject to any law. On the other hand, if you believed in legal positivism, you would say that all laws (and therefore rights) are man made, and have no connection with morality or nature.

        I am not debating either of these viewpoints. What I’m trying to say is that from a practical perspective, a right can remain so only if it is legally enforcable in a court of law. If the right to marry arises from the right to liberty as defined under the constitution, the courts would not uphold “the right” to same sex marriage if they felt that the makers of the constitution did not envision same sex marriages as coming under the definition of marriage.

        This is a crucial difference between Indian and American jurisprudence. In India, our courts do not have to power to go beyond what the makers of the constitution laid down as the framework of the constitution. Any interpretation in violation of this framework would require an ammendment to the constitution. Whereas in the US, the Supreme Court can decide if the consitition is valid and current, keeping in mind the current society and make necessary interpretations even if it exceeds the scope of the original interpretation by the makers of the constitution. Atleast, this is my understanding of the law. Hence, the question of whether there the right to same sex marriage is a right at all, becomes an issue of interpretation of law. Most likely, Munshi and Rajaji would not have envisioned such a situation and neither is it supported by any religious or natural precedence (sodomy or oral sex is a crime even today, as per the Indian Penal Code), in which case the courts will not make the necessary interpretation to give such a right a legal status. In which case it would then come to the Parliment for debate, and then our viewpoints would matter! πŸ™‚

      • I think I have been misunderstood

        Nope, I thought I had made that clear with my grin and the first line. I know where you are coming from, and I have no arguements with the position. From the point of view of administration, it is the only practical position. However, the concept of natural inalienable rights is quite important when it comes to garnering support for an idea. πŸ™‚

        The judges in the US Supreme Court are bound to uphold the constitution as the basic law of the lad. This is one aspect we had borrowed from their constitution. So they certainly can’t deem their constitution invalid. The power of judicial review is theirs, but our judges have it to. They are concerned about the basic structure of the constitution, not what Munshi or Rajaji would have thought.Oh one can easily argue that they would have been able to envision same-sex marriages. Rajaji and Munshi were Sanskrit scholars, and even if they bypassed the Kamasutra, both of them definitely seem to have read the Mahabharata. Given the discussion between Vidura and Bheeshma on the nature of marriage and sexual alliances, and given a few other stories in the epic, they would already have been conversant with the idea of homosexuality. India’s secular status renders the question of religious precedence immaterial, and there are enough studies documenting the presence of homosexuality in other species that a natural precedence can be established.

        True, sodomy is a penal offence but a little research would tell them that is simply because we adopted a large portion of the British penal code into our system, and that this particular law dates back to the Victorian era. It can be easily argued that the Victorian age was one of the most prudish eras when it comes to human sexuality. homo sexuality has not been all that uncommon in India down the centuries, and there are enough references in poetry and literature to support that stance. We even have a monument erected to a homosexual couple, Kamali-Jamali. πŸ™‚

        It is simply a matter of arguing your case. πŸ™‚

      • Well, I beg to differ with you.

        First of all, the Kamasutra is highly overrated. It is the work of a single individual, which has never been recognized widely in Indian history until recent times. Neither does it have the status of a hindu religious text, nor has it been ratified by other sages like the epics have been. It is the artistic and literary work of a single individual. Oh, I’m not saying that homosexuality is not prevelant. Just that it was never accepted as a mainstream practice, and was discouraged strongly. There is no disscussion on homosexuality in the Mahabharata. The closest discussion that comes to it is Shikandi’s change of sex, and the circumstances are completely unrelated.

        However, Kautilya’s arthashastra disapproved of homosexuality, sodomy and any other form of non-natural sex. That is the source of our penal code, not the british standard for sexuality. The monument you refer to is not of hindu origin, and does not hold any religious significance. And regarding natural precedence, it is not overwhelming enough to establish that homosexuality is the natural order of the universe. No scientist around the world has come to that conclusion yet. Let us be clear: this argument is not about the prevelance of homosexuality, but whether it should be accorded a majority status and incorporated into marriage laws.

        I hate to hijack ‘s journal and hold this discussion, but I am unable to leave this discussion as it is. My point is this: homosexuality is an deviation from the natural order of things. We should accept it as such, and treat it accordingly. Aberrations of nature cannot and should not be given the mainstream importance that normal and accepted practices are given. One cannot assign a majority status to every minority, and the minorities have to recognize this. This feverent pro-same sex marriage argument, even by those who do not practice it or even remotely connected with it, is one of the symptoms of the trend towards a libertarian society.

        Please do not make the argument that 50 years back people like Rajaji were so liberal as to envison the need for same sex marriages. That is simply unacceptable and such a stand undermines the credibility of all your other arguments.

      • With apologies to our host….

        … I’ll try to be brief :

        1] Section 377 of the IPC, which deems sodomy a penal offence, was introduced by the British in 1860. The IPC, in its own introduction, makes no mention of Kautilya, or _Arthshastra_, but does acknowledge the fact that the British Penal Code comprises a vast majority of it. Had you mentioned Manu’s _Dharamshastra_, we might have had something to argue about, but then Manu doesn’t talk about homosexuality. I have never before heard the assertion that our penal code is based on Kautilya’s treatise [and I never asserted that IPC was based on British sexuality :)] and am curious about your sources/reasons for doing the same.

        2]As far as homosexuality goes, given its presence in nature and the studies showing a genetic linkage to a predisposition towards it, I do not consider it to be a gross offence against nature. Besides, and more to the point from a legal perspective, who defines ‘the natural order of things’ and what are the paremeters used in this decision?
        India is a secular nation and thus, the lack of religious significance isn’t supposed to be a consideration. The fact that there was an acceptance of these practices then goes on to establish a historical precedence of tolerance.
        And decriminalising a minority is not the same as making it the majority. They are not asking for religious sanction, merely a removal of the criminal status, and perhaps later, a civil union. I fail to conceive of a sufficient reason to deprive them of the same.

        3] Please do not make the argument that 50 years back people like Rajaji were so liberal as to envison the need for same sex marriages.

        It is not a question of how liberal they were in the matter of sexual behaviour, but how liberal they were with regards to their stance on individual rights. You have picked out two of the staunchest individualists and I think you do them a great disservice by assuming that they would blithely disregard the civil rights of a group merely because of the latter’s sexual preferences. The reference to Mahabharata and Kamasutra were merely to indicate that they would have already had some idea about the existence of the phenomenon.

        4] And that brings me to this:

        There is no disscussion on homosexuality in the Mahabharata.

        I never claimed there was any. Merely that different notions of sexuality are discussed, and a lot more is implied in the side-tales. Shikhandi’s sex change is irrelevant here. However, I will not be able to cite examples right now – my notes on that bit are locked up in my office cabinet, and I am home on a medical leave. Also, I am years ahead in my narration and simply daren’t delve into the original right now. It would completely mess up my timeflow, and I can’t have a writer’s block right now. πŸ™‚

        Apologies for that, but if you’d care to discuss this further, just let me know. I can get in touch with you with the notations once I rejoin work and can access my notes.

      • Re: With apologies to our host….

        Ok, let me bring closure to this debate. πŸ™‚

        I will clarify that I strongly believe that homosexuals shouldn’t be treated as criminal. Certainly nothing criminal about it. And they definitely should not be abused or discriminated because of their sexual preference. But that’s just protection of a minority who have their own reasons for choosing homosexuality (and most of those reasons are usually not very happy ones).

        There’s the question on what happens if we legalize homosexuality. Or sodomy for that matter. Very recently, there was a public interest petition pleading that the court removes the reference in the IPC to sodomy and oral sex being crimes against nature. The supreme court refused to consider that stating that they had no jurisdiction to ammend the IPC and recommended that the parliment address this issue through an ammendment. While stating that recommendation, the court also opined that while this is may be an accepted practice in other countries, it offends religious and moral sentiments in India and so the court would advice against making any changes until a common civil and criminal code had been established. The debate now rests with the parliment.

        In my opinion, the problem with legalizing these things is that it sets a precedence. The point is that these laws offend no one, and cannot be enforced. How the hell can you prevent two adults of the same sex from having intercourse with one another? How do you detect and prevent these things? That’s not the purpose of the law. In fact, in that petition, the petitioner had cited this very argument, saying that no one had been procecuted under these sections for a very long time. I think that the only purpose of these archaic laws is to make sure that no precedence is set, and that people understand that exceptions cannot be made the rule. The very foundations of a stable society, such as the concept of family, can be easily ruptured within a very short period of time if one decides to give in to the whims and fancies of every such minority.

        The more important reason why these things should be outlawed right at the very beginning, is that one cannot pre-quantify the tipping point. For example, at what point would you say that the change in society becomes irreversable? When 10% of married couples belong to the same sex? 20%? 30%? or 50%? You see my point? You don’t know before hand when things will start spiraling out of control, and then it becomes too late to reverse the trend. If we knew that tipping point, we could be liberal till we reach that point, and then enforce stricter laws. But it doesn’t work that way. This is the same reason why thieving is considered illegal. After all, what’s the big crime if one person steals a purse from some one else? Why can’t it just be ignored? Why make a point of it and then arrest him citing illegality while politicians who steal in hundreds of crores escape free? Why not treat it on a case to case basis? Because, if thieving is not outlawed, we cannot prequantify at what point society will become seriously destabilized by free-for-all thievery and people will lose absolute respect for another person’s property. So we have to completely make it illegal from the very beginning. Even if it seems frivilous, or unnecessary at first.

        I hope this puts my arguments into perspective.

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