Sen Discusses Pursuit of Justice in India
Published: Thursday, March 14, 2013
Updated: Thursday, March 14, 2013 02:03
On Feb. 28, an auditorium in Higgins Hall was packed with individuals who had come to hear Nobel Prize winner Amartya Sen give a lecture entitled “Constitution: Language and Content,” an event sponsored by the Clough Center for the Study of Constitutional Democracy. Long before Sen began speaking, all of the chairs were occupied, and attendees filled the rest of the floor space to the extent that one woman wondered aloud, “Is this going to be a fire hazard?”
On coming to Boston College, Sen said, “I did think, this morning, that I might pick up a tip or two about what might be happening in the papal election. I actually was fortunate in knowing Pope Paul, because when he did the encyclical called Centesimus Annus, I was one of the advisors. I contributed to one paragraph, and I thought, if I’m ever stopped at the Gate, I would always say, did you read page 37, second paragraph? It was mostly what I wrote.”
Taking an interdisciplinary, “peripatetic” approach, Sen centered his lecture on the problems India faced in forming a democratic constitution after the end of British rule in 1947, which ultimately involved an ad-hoc approach. “The Indian Constitution is an impressive achievement, particularly with the absence of a theoretical basis for justice,” Sen said.
“The pursuit of justice was among the main guiding principles the lawmakers faced, even though there was some lack of agreement among the new lawmakers themselves about how justice would be best promoted.”
The main conflict, between “fixed rules and a built-in flexibility,” existed in India as well as the U.S. surrounding the principle of originalism, which had supporters such as Supreme Court Justice Antonin Scalia and opponents such as Justice Stephen Breyer. As he had done in his recent book, The Idea of Justice, Sen organized the two sides under the Sanscrit terms of “niti” and “nyaya.”
“Sanscrit has about 25 words for justice,” Sen said, “but niti and nyaya are the two principle ones, and have been invoked in legal discussions a great deal, but they operate in very different ways. Among the uses of the term niti are organizational propriety and behavioral correctness. In contrast with niti, the term nyaya stands for the comprehensive concept for realized justice.”
In other words, niti is akin to the originalist view of adhering strictly to the rules themselves, while nyaya bears more relevance to the motivation behind those rules, which “are not important in themselves, but have to be assessed in the broader and more inclusive perspective of nyaya, which must take into account the nature of the world that actually emerges, not just the institutional roles that we happen to have.”
The wrong kind of world, Sen said, followed “the justice of fish, where it is all right for the big fish to freely eat the small fish.” Nyaya would allow lawmakers to avoid this type of justice through uniting motivation despite differing ideology. While motivation may be difficult to analyze, Sen argued that an obsession with the original wording itself was often directed by the evolution of language, which he described as only a tool.
To illustrate his points, Sen drew upon not only upon the ideas of other thinkers before him, but also upon intriguing elements of Indian culture, such as the fourth century Sanscrit drama Mrcchakatika, “a moving love story between an upright citizen and a beautiful and kind courtesan.” In the end, the protagonists would like to set free a killer despite his crimes against them. By one view, Sen said, “it would be our duty to kill the accused.”
Sen then applied his concept of niti and nyaya to a famous statement made by Emperor Ferdinand I, “Let justice be done, though the world perish.” He also drew a distinction in the attitude of Arjun toward a costly war in the Bhagavad Gita and a related text, and noted that even Gandhi supported the decision to be engaged in a just war.