What liberals must do before questioning tradition

In the recent past, many progressive voices have aired their discontent about the way liberals have evaluated community traditions and practices. This article attempts to explore the issue further by proposing a framework to evaluate traditional practices, and community claims associated with such practices. It argues that in instances where traditional practices come into question, rights-based claims made by the liberals lead to undemocratic consequences and so must yield to a model of injury-based claims.

It may be important to argue that communities must be allowed the space for internal critique and reform and that a liberal should not be high-handed in dealing with fragile customary practices. However, such a strategy makes the issue seem as if it is about the liberals. Whereas, in reality, the issue is about how different communities in a democratic society, liberals, traditionalists and every one in between, should conduct themselves when their values are at variance.

Therefore, it is even more important to lay down certain ground rules of public reasoning in such situations. It is imperative for the health of a democracy that the burden of proof is equitably distributed and the odds not unfairly stacked in favour of any one or the other of these positions. More generally, it is necessary to move away from a variety of public reasoning which attempts to explain the opponent (as ideologically motivated, as trapped in false consciousness or as power hungry) towards a mode which seeks to dialogue with them.

The liberal conundrum

Part of the reason for communities turning virulent in responding to the liberal challenge can be traced back to the peculiar logic of liberal arguments where communities are often vilified on the basis of evaluative standards and assumptions which are not intelligible outside the liberal framework. It does not amount to much that liberals themselves have impeccable arguments for the universality or priority of their standards.

The consensus needed to even so much as begin a dialogue is put together using common and everyday values available at hand. Larger and more abstract values, typically those championed by the liberals, are articulated as part of the process of dialogue itself, every time that such a consensus has to be built.

Therefore, liberal values cannot be treated as absolute to which all parties have to comply if a true democracy has to be set up. Instead, they are to be treated as the best heuristic to guide the liberal in his or her own political actions. Treating a heuristic concept as a normative one (that is, as universally valid irrespective of the context of dialogue) is at the heart of the liberal's own uncompromising attitude towards illiberal values.

Therefore, in instances where liberal and traditional values have come into conflict, arguing for the supremacy of liberal virtues like gender justice, equity, rights and tolerance is neither strategically productive nor cognitively valid. After all, it simply mirrors the traditionalists' strategy of arguing for their own set of cherished values, which are probably equally unintelligible to those outside their ways of life. Instead, it might make better sense to lay down procedures of reasoning which are agnostic to both sets of values.

Of late, in matters concerning contentious community practices and traditions, the liberal strategy has been to evoke the principle of right. The courts too have found it appropriate to ask whether denying entry into temples to persons based on their gender, caste or station in life and allowing the practice of rolling over left-over foodstuff (made-snana) would not constitute a breach of their rights. Unless one wants to take recourse to universal evaluative criteria, (which, as mentioned above, is both logically untenable and strategically undesirable) we must remember that the sense of abhorrence one experiences at these practices are the result of particular evaluative preferences that have shaped us. We need not be apologetic or triumphant about the evaluative criteria we hold on to, but we do need to be wary of making them the ultimate court of appeal.

Rights principle and traditional practices

Arguing that a traditional practice should be abandoned as it infringes upon one's rights is untenable at many levels. The idea of right draws its meaning from the boundaries within which it operates. One such significant boundary-marker for defining something as a right is that it has a bearing on the civic aspects of our life. As citizens who give the law unto ourselves, we cannot be encumbered by forces which inhibit the full and free exercise of our judgment on matters of common good.

Any such encumbrance, be it a denial of voting rights, free speech, life or security are detrimental to the full exercise of the powers of a citizen. However, those aspects which are not part of our civic life and common good cannot be brought under the concept of right; precisely why courts and legislatures do not determine by fiat the results of scientific experiments or the precise method of worshipping gods, unless they infringe upon our rights to exercise our capacities as citizens, that is, as arbitrators of the common good.

For instance, when we argue that education is a right, we mean that education refers to a good which is necessary for a citizen and therefore no one should be denied it for reasons of caste, gender or sexual orientation.

Regardless of whether we presently have an adequate explanation about the good that education embodies, we can agree that there is possibly some explanation which is both secular and rationally admissible. Similarly, if we want to make rights-based arguments in matters of religious and traditional practices, we have to show what the relevant good is in such practices, using a secular and rational language.

However, the good that inheres in religious and traditional practices is, by definition, not amenable to such a language. There are two options in these circumstances: either the liberals have to resort to religious language themselves in defining the good embodied in traditions, which is a move in bad faith. Or, they have to concede that the good of traditions is in how they come, and not in anything else they refer to; the only agnostic and reasonable option available. Tradition has no other good outside of the ways in which it is practiced. If the good of a tradition is in how it comes, a rights-based argument which attempts to access the tradition by altering it is a self-cancelling argument. 

Lest we are afraid that this argument reeks of a logical fallacy called "appeal to tradition", a line of clarification. Arguing for the validity of a statement or a belief based on an appeal to tradition is indeed fallacious. However, arguing for the continuation and sustenance of a tradition because it is desirable in itself is no fallacy; not in the least because advocating a tradition is not equal to advocating one or the other claim about it.

Injury-principle and traditional practices

This leads us to the next problem: doesn't such a model insulate traditions from all possible criticism leading to a tyranny of traditions? The solution lies in invoking the principle of injury; that is, in challenging a customary practice, the aggrieved parties prove injury.

While most obvious cases in such circumstances will involve physical injury, like practices involving harm to the life, limb and sanity of persons, the more critical cases might involve social or psychological injuries too.

However, arguing purely on formal grounds that denying someone entry to a temple causes social or psychological injury may be insufficient. That is because, under normal circumstances, no one would consider a woman, for instance, as socially inferior because ritual practices require that she stay outside a temple. Whereas, this is not the case with rights for civic goods: a person denied education is considered socially inferior as a result of lack of education.

Similarly, arguing that denying entry into a temple causes psychological injury cannot in itself hold because such injury cannot be purely personal; a significant cross-section of the society must make a case that psychological injury is to be anticipated in such circumstances.

Another apprehension about this proposal could be that it undoes the hard-won historical gains of some communities, especially Dalits, in securing entry to temples and other public spaces.

But, it must be remembered that the Dalit argument for temple entry could successfully claim that denial of entry to temples was a paradigmatic instance of denial of entry to all public spaces and goods, including education, jobs and other rights. Such a case cannot be made in any of the present instances involving temples, dargas and various traditional practices. Even the most extreme anti-traditionalist would concede a distinction between the practice of Sati and denying women entry into the Sabarimala shrine.

However, within the rights-based framework, it is impossible to articulate this intuitive difference in any meaningful sense. Both seem like cases of infraction of rights and a result of the patriarchal system with varying degrees of violence on women. In contrast, a significant difference between them is easily articulated using the injury principle: both are traditions, with the former involving a cognisable injury, and only therefore reprehensible, and the latter less obviously so.

It may not be out of place to note that, in India, very radical calls for a common civil code are usually made using the rights principle as a plank. Instead, with the injury principle, we could effectively check the excesses that may be caused by such legislative adventurism. Such a principle will ensure that personal laws be amended only gradually and that too after the injury due to a particular unfair law is established adequately.

As with all other regulatory and procedural ideas, this one too is born weak and is in need of fleshing out as it encounters a variety of challenging circumstances. But it must be noted that, unlike the rights principle, it does not guarantee any one or the other variety of outcomes beforehand. Also, unlike the rights principle, which is very abstract, the injury principle is more concrete and sensitive to the fact that injury may vary based on contextual differences of time and place. This ensures that due respect is given to both the aggrieved and the defendant in case of a conflict over tradition.

The liberals' evocation of rights in matters of traditional practices gives them a very wide writ. The point is not simply that of allowing or disallowing a discriminatory practice in a particular temple or mosque. It is that pretty much any conceivable distinction between human beings, situations and rituals made by a tradition is potentially subject to being pronounced illegal, if one were to apply the liberal maxim of rights.

Even the liberals, going by their own canon of fairness, would agree that no one, including themselves, should have such a wide and overarching writ in a democracy.