Dr. Amartya Sen on Constitutional Interpretation, Language and Human Rights
Owen J. Roberts Memorial Lecture in Constitutional Law
At the 2011 Owen J. Roberts Memorial Lecture in Constitutional Law, Professor Amartya Sen presented a short paper on the philosophy of language and the evolution of interpreting constitutional and human rights provisions over time. Professor Sen argued that the act of constitutional interpretation itself must confront the particular philosophical language problems of interpreting the collection of words of which a constitution is explicitly constitutive, thus casting doubts over the Originalism of Robert Bork and the textualism of Calabresi.
When British rule ended in 1947, the pursuit of justice as a guiding principle was one of the questions that concerned the makers of the constitution of newly independent India. The disagreement and difficulty lied in combining “fixed legal rules that a constitution demands” with “built in flexibility so that new ideas that win future argument can be accommodated within an appropriately responsive constitutional framework”. For Professor Sen, the makers of the new democratic constitution of India were “explicitly” and by “implication” confronted with philosophical problems of interpretation of the constitution that go beyond it as a mere “collection of words”.
Professor Sen outlined three such philosophical problems. First, there is the problem elaborated by Philosopher Ludwig Wittgenstein that the meaning of words is to be understood in “terms of rules that govern their use”. The makers were concerned that if the constitution were indeed to survive in over time, they could not overlook that the “governing of rules can change substantially”. The second was that the “rules that reflect the use of the word might not be uniquely defined” even in Wittgensteinian terms. “There might be scope for argument over which of the permissible rules in the Witgensteinian sense would be appropriate for interpreting a law, even a constitution”. Each word of the constitution might have a “cluster of alternative definitions each with issues over what would be permissible interpretations”. Finally, the third concerned the arbitration of interpreting provisions need what Professor Sen termed not only “reasoning” but a type that incorporated “empirical cogency” as well as “ethical plausibility”.
In demonstrating by what is meant by empirical cogency, Professor Sen spoke on affirmation action provisions in India and how they have for some not been served particularly well by their specific wording in the constitution. There have been arguments made that a more “efficacious” provision for social mobility can be found by re-interpreting the provisions’ “motivations” rather than their “particular wording”. Here, a distinction is made for provisions with “reasoning dependent” on its correlates rather than “provisions with reasoning independent” from its “effects and other correlates”.
On ethical plausibility, Professor Sen refers to works of Adam Smith’s on jurisprudence and politics, in particular Smith’s imperative that we not look at constitutional provisions without bringing the ethical component into consideration because laws always “leave an opportunity” to be alternatively interpreted. Professor Sen argues that this point has often been misunderstood in Smith’s writings where Smith has in fact always been a proponent of moral reasoning in the pursuit of happiness. The “Smithian reasoning”, noted by Professor Sen, must involves both an epistemology of not only what “would regulation favoring one group over another would actually produce in society” but as well an ethical component for determining “what outcomes would be acceptable in light of demands of fairness and justice”.
Here, the right question in the major battle in the United States over constitutional interpretation, that of Originalism as in “taking the original view of the constitution”, is not merely whether one want to take the original view or not since presumably that is what everyone does in consulting the primary documents would in fact be doing, but rather “what part of the original do you preserve”. Is it the intentions of the framers? Or its constitutive words? Or perhaps, as Professor Sen would contend, something more substantive than the intentions, that is the original motivations?
The former position, Professor Sen tells us, is ascribed to Robert H. Bork who advocates that we need to look at the intentions of the framers of the constitution, such that we “must interpret the provisions of the constitution according to the intentions of those who drafted, proposed and ratified them”. The second view is ascribed to Steven Calabresi who argues that the “the meaning of the words and their application to present day problems depends of what the American people mean in acting on a long period of time through our three branches of constitutional interpretation”. Calabresi argues we must reject the notion of “intention” as too prone to the “idiosyncrasies” of a “privileged famous few” and stick instead to the words used “no matter how much they have in fact changed” now rather than their meaning in the previous centuries. For Professor Sen, we need to look for “something more substantial” than intentions, what Professor Sen calls the “constitutional motivation”. That is, we need to “ask the question what is it that they were trying to do” and “what kind of society they were trying to capture”.
In defending his position, Professor Sen argues that there are two “evolutions” important to take in account. First, we must take into account the conceptual difficulty in ascribing to the past the foreknowledge of causes-effect and reject the call to ignore the “epistemological enrichments” that have developed over time through studies and research. Secondly, our language and our ethical values have proven over time malleable. We must fully distinguish between “the development of particular values and priorities that are compatible with constitutional motivation (democratic and tolerant participative society)” and the changes and logic of the use of language or words applied and particularly used in the text. It would be “credulous”, claims Professor Sen, to expect that both are always congruent. The problem with the Calabresi thesis is that we are essentially asked to forego a large amount of contemporary meaning and relegate substantial ideas to “linguistic moods”. It is “very suspect” that we would need to “treat the specific written word as a fixed point”.
To illustrate what Professor Sen takes as “reasoning” and its empirical and ethical aspects, he takes the highly debated theory of justice, which highlights for him the further philosophical issues of what is constitutive of law and constitutive of morality. Here Professor Sen contrasts his account with the Hobbesian conception of justice as based on a “social contract” which he basically says is “wrong” on three grounds: (a) “it looks only at the perfect society, doesn’t tell you if something is getting better or worse”; (b) “it assumes that we would have an agreement if we would take away our private interests on what a fair society would be”; and (c) “even with a plurality of impartial reasoning, it is possible to be completely impartial and arrive at different conclusions”.
To explore what is “just thing to do” in a constitutive way, Professor Sen turns to the 4th century play in India The Little Clay Cart which illustrates what he sees as two theories of justice: (1) as “an organizational propriety and behavioral correctness”; and the (2) as a “comprehensive concept of realized of justice what happens in the world and what makes it go about realization”. For Professor Sen, what the story demonstrates particularly well is that “the assessment of institutions must take into account their place in the world so that it includes not merely how it emerges but actually also how it emerges”.
In the topic of human rights, Professor Sen asks us to reconsider Jeremy’s Bentham’s description of rights as a product or a child of law obtained as a citizen of a state but also rights as a tenet of law obtained in virtue of our shared humanity. Professor Sen notes that if we consider Christabel Pankhurst’s petition for women’s right to vote in 1911 Britain, the use of right could not have been in the legal sense since the right had never been enshrined in any legislative form; it had and could only have been a moral demand or tenet of law. Professor Sen summarizes: “the duality of the uses of right has a connection between the two types of rights: (1) on legal force as a claim and (2) as moral motivation”. Right are not only “the child of law” but also a “tenet of law”. As Llyn Hunt in Inventing Human Rights exclaims, even the Declaration of Human Rights in 1948 by the United Nations was for President Roosevelt as a “template for legislation”.
Professor Sen concludes by noting that the ethical component is vital. In order to bring out human rights different societies, rights cannot be simply a legislative matter. There is not only a lot of work needed and possible in the “media coverage” and the “agitation of people”, but this suggests also that the legitimacy and the foundations for interpreting constitutional motivations are rooted in the moral conditions of the legal framework itself. Bentham was essentially right; however, there is a more substantive position here. Professor Sen argues, like philosopher Marry Wollstonecraft, we need to have more than legislation to bring its conditions about. We need equal rights but we must also change the media coverage, we need to change what agitates people. It is never simply a product of legislation.