What Liberals must do before questioning Tradition?

A P Ashwin Kumar

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 (i.e., 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.

Rights Principle and Traditional Practices

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.

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 are handed down, 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 is handed down, 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 reverses 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 uniform 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.