The Transformative Constitution

by Gautam Bhatia

  12. Ibid., ¶13.

  13. Ibid.

  14. Ibid.

  15. Ibid.

  16. Ibid., ¶14.

  17. Ibid.

  18. This problem is, naturally, magnified in a society like India, where law enforcement is weak, and the informal sector is massive.

  19. Ibid., ¶14.

  20. Ibid., ¶12.

  21. Whether I have been rightly or wrongly imprisoned is a separate issue.

  22. For a prior discussion of this issue in the context of Indian constitutional law, see Gautam Bhatia, Offend, Shock, or Disturb: Freedom of Speech under the Indian Constitution, Ch. 11 (New Delhi: OUP 2015).

  23. David Miller, ‘Constraints on Freedom’ (1983) 94(1) Ethics 66, 72.

  24. Gerald MacCallum, ‘Negative and Positive Freedom’ (1967) 76(3) The Philosophical Review 312.

  25. Eric MacGilvray, The Invention of Market Freedom 312, 314 (New York: Cambridge University Press 2011).

  26. The word ‘liberal’ here does not refer to political liberalism.

  27. See, e.g., Quentin Skinner, Liberty Before Liberalism (Cambridge: Cambridge University Press 1998). Henry Sidgwick, The Elements of Politics (2nd ed., London: Macmillan 1897), available at https://ia800207.us.archive.org/31/items/theelementsofpol00sidguoft/theelementsofpol00sidguoft.pdf. For a critical genealogy that traces it back to Hobbes, see Corey Robin, The Reactionary Mind (2nd ed., New York: OUP 2018).

  28. Isiah Berlin, ‘Two Concepts of Liberty’ in Four Essays on Liberty (Oxford: Oxford University Press 1969), available at http://faculty.www.umb.edu/steven.levine/courses/Fall%202015/What%20is%20Freedom%20Writings/Berlin.pdf.

  29. F. Hayek, The Constitution of Liberty 12 (Chicago: University of Chicago Press 1978).

  30. Ibid.

  31. Ibid., 13.

  32. Ibid., 137. For a genealogy of the argument from ‘naturalness’ of private hierarchical orders, going back to Edmund Burke, see Robin, The Reactionary Mind, supra.

  33. See, e.g., Alex MacGilvray, The Invention of Market Freedom 1 (New York: Cambridge University Press 2011). This was also the philosophy espoused by the US Supreme Court during the well-known ‘Lochner era’, where labour regulations were struck down on the grounds that they interfered with the ‘freedom of contract’ that existed between employers and employees. See, e.g., Lochner v. State of New York, 198 U.S. 45 (1905). Alex Gourevitch, From Slavery to the Cooperative Commonwealth: Labor and Republican Liberty in the Nineteenth Century (New York: Cambridge University Press 2015).

  34. Berlin, Four Essays on Liberty, supra, liii. For inconsistencies in Berlin’s thought on this point, see MacGilvray, The Invention of Market Freedom, supra.

  35. John Rawls, A Theory of Justice 204 (Cambridge: Harvard University Press 1971).

  36. For a defence of the analogy between the market and natural forces, see Hayek, The Constitution of Liberty, supra. See also Ripstein’s description: ‘Each individual faces the labor market in just the way an individual faces the weather. The market sets parameters within which one must operate. And the only way to turn those parameters to one’s advantage is the same as the only way to turn the weather to one’s advantage – by exploiting their very inexorability.’ Arthur Ripstein, ‘Commodity Fetishism’ (1987) 17(4) The Canadian Journal of Philosophy 733, 746.

  37. See the discussion of Berlin and Rawls in Gerald Cohen, ‘Freedom and Money’, available at http://www.howardism.org/appendix/Cohen.pdf; see also Jeremy Waldron, ‘Liberal Rights: Two Sides of the Same Coin’ in Liberal Rights: Collected Papers 1981–1991 1–34 (Cambridge: Cambridge University Press 1993).

  38. Quentin Skinner, Liberty Before Liberalism (Cambridge: Cambridge University Press 1998); Quentin Skinner, ‘A Third Concept of Liberty’ (2002) 117 Proceedings of the British Academy 237–268.

  39. Skinner, Liberty Before Liberalism, supra, 69.

  40. Ibid., 70.

  41. Philip Pettit, Republicanism: A Theory of Freedom and Government 22 (Oxford: Oxford University Press 1997).

  42. Ibid.

  43. Skinner, ‘A Third Concept of Liberty’, supra, 256.

  44. Skinner, Liberty Before Liberalism, supra, 84.

  45. See, e.g., Thomas Hobbes’ famous argument that freedom has no relevance to the form of government, and Harrington’s response to him, cf. Pettit, Republicanism, supra, 38.

  46. Ibid.,72.

  47. Ibid., 122.

  48. Skinner, Liberty Before Liberalism, supra, 60. This is a familiar argument. See also Karl Marx, The German Ideology (Moscow: Progress Publishers 1968), available at https://www.marxists.org/archive/marx/works/download/Marx_The_German_Ideology.pdf, visited on 31 December 2017: ‘Individuals obtain their freedom in and through association.’

  49. Pettit, Republicanism, supra, 22: ‘Domination, as I understand it here, is exemplified by the relationship of master to slave or master to servant.’ See also, William E. Forbath, ‘The Ambiguities of “Free Labor”: Labor and Law in the Gilded Age’ (1985) 1985 Wisconsin Law Review 767, 784: ‘Unfreedom inhered in the slave’s legal bonds of personal dependence.’

  50. Pettit, Republicanism, supra, 52–53.

  51. Pettit, Republicanism, supra, 75. See also Philip Pettit, ‘Freedom in the Market’ (2006) 5(2) Politics, Philosophy & Economics 131–49; Skinner, ‘A Third Concept of Liberty’, supra.

  52. For an early variant of the argument, see Adam Smith, The Wealth of Nations, Book III, Chapter IV, available at https://www.marxists.org/reference/archive/smith-adam/works/wealth-of-nations/book03/ch04.htm: ‘[e]ach tradesman or artificer derives his subsistence from the employment, not of one, but of a hundred or a thousand different customers … though in some measure obliged to them all … he is not absolutely dependent upon any one of them’. Or, as the Reconstruction US politician William Graham Sumner put it in the late nineteenth century, ‘… a society based on contract is a society of free and independent men, who form ties without favour or obligation, and cooperate without cringing or intrigue’. William Graham Sumner, What the Social Classes Owe Each Other 24 (Caldwell: The Caxton Printers 1974), available at https://mises.org/system/tdf/What%20Social%20Classes%20Owe%20Each%20Other_2.pdf?file=1&type=document; see also MacGilvray, The Invention of Market Freedom, supra; Ripstein, ‘Commodity Fetishism’, supra.

  53. Pettit, ‘Freedom in the Market’, supra, 139.

  54. William Clare Roberts, Marx’s Inferno: The Political Theory of Capital 97 (Princeton: Princeton University Press 2016).

  55. MacGilvray, The Invention of Market Freedom, supra, 102.

  56. Pettit, ‘Freedom in the Market’, supra, 144.

  57. Roberts, Marx’s Inferno, supra, 98. MacGilvray calls this a ‘conceptual sleight-of-hand’. See MacGilvray, The Invention of Market Freedom, supra, 172. As William Forbath puts the point in his account of US labour history, citing D.B. Davis, ‘one could justify exploitation only by making it impersonal’. Forbath, ‘The Ambiguities of “Free Labor”’, supra, 784.

  58. Ripstein, ‘Commodity Fetishism’, supra, 747. In his analysis of Capital, William Clare Roberts points out that Karl Marx’s project was, in part, to demonstrate that early socialist thinkers were mistaken in taking as their objects of criticism individual ‘acts of force or fraud committed by the proprietors.’ This mischaracterized the form of domination exercised under capitalism, which was social in character, and ended up trapping them within the ‘very social system that they want to escape’. See Roberts, Marx’s Inferno, supra, 53, 58, 82, 93, 95, 132. See also, ibid., 96: ‘One might say that individuals are forced to be market agents in general, but not forced to make any particular market decisions.’ In The German Ideology, Marx himself framed it thus: ‘The social power, i.e., the multiplied productive force, which arises through the co-operation of different individuals as it is determined by the division of labour, appears to these individuals, since their co-operation is not voluntary but has come about naturally, not as their own united power, but as an alien force existing outside them, of th
e origin and goal of which they are ignorant, which they thus cannot control, which on the contrary passes through a peculiar series of phases and stages independent of the will and the action of man, nay even being the prime governor of these.’ Marx, The German Ideology, supra. Further, for an account of the concept of social domination in German critical theory, see Moishe Postone, Time, Labour, and Social Domination: A Reinterpretation of Marx’s Critical Theory 30 (Cambridge: Cambridge University Press 1993), available at http://www.urbanlab.org/articles/Time/Postone%201993%20-%20Time%20Labour%20and%20Social%20Domination.pdf; see also Chris O’Kane, ‘Fetishism and Social Domination in Marx, Lukacs, Adorno, and Lefebvre’, available at https://reificationofpersonsandpersonificationofthings.files.wordpress.com/2013/06/chris-okane-thesis-final.pdf; Julius Sensat, ‘Exploitation’ (1984) 18(1) Nous 21–38.

  59. See, e.g., Michel Foucault, Discipline and Punish: The Birth of the Prison (New York: Pantheon Books 1977).

  60. Sharon Krause, ‘Beyond Non-Domination, Agency, Inequality and the Meaning of Freedom’ (2013) 39(2) Philosophy and Social Criticism 187–208; see also Alex Gourevitch, From Slavery to the Cooperative Commonwealth, Labor and Republican Liberty in the Nineteenth Century (Cambridge: Cambridge University Press 2014).

  61. Ibid., 10.

  62. Roberts, Marx’s Inferno, supra, 23; see also Karl Marx, Grundrisse (Harmondsworth: Penguin Books 1973), available at https://www.marxists.org/archive/marx/works/1857/grundrisse/, visited on 30 December 2017.

  63. Ripstein, ‘Commodity Fetishism’, supra, 747. In The German Ideology, Marx writes: ‘In history up to the present it is certainly an empirical fact that separate individuals have, with the broadening of their activity into world historical activity, become more and more enslaved under a power alien to them (a pressure which they have conceived of as a dirty trick on the part of the so-called universal spirit, etc.), a power which has become more and more enormous and, in the last instance, turns out to be the world market.’ Marx, The German Ideology, supra.

  64. Gourevitch, From Slavery to the Cooperative Commonwealth, supra, 45.

  65. Marx, Grundrisse, supra. Elsewhere, Marx calls this ‘the violence of things’. Marx, The German Ideology, supra. Among the early thinkers, Max Weber, as well, identified the market as a source of domination as oppressive as personal dependence. See Max Weber, ‘Domination and Legitimacy’, in Economy and Society: An Outline of Interpretive Sociology (New York: Bedminster Press 1968), available at https://ia600305.us.archive.org/25/items/MaxWeberEconomyAndSociety/MaxWeberEconomyAndSociety.pdf, visited on 30 December 2017. See also, Max Horkheimer, Eclipse of Reason (New York: Continuum Books 2004).

  66. Miller, ‘Constraints on Freedom’, supra; US labour-republicans characterized it as the product of ‘human law’. See Gourevitch, From Slavery to the Cooperative Commonwealth, supra.

  67. Ibid., 84, quoting a prominent labour republican.

  68. ‘Labour-republicanism’ because it borrows from republican theory in understanding freedom in social terms, and also in terms of power and domination rather than interference. Ibid.

  69. Ibid., 109.

  70. Ibid., 111; the English philosopher Thomas Hobhouse made this specific argument in the context of minimum wage laws: because ‘… [t]he opportunities of work and the remuneration for work are determined by a complex mass of social forces which no individual, certainly no individual workman, can shape … [t]he ‘right to work’ and the right to a ‘living wage’ are just as valid as the rights of person or property’. See L.T. Hobhouse, Liberalism (London: Oxford University Press 1911), available at https://www.gutenberg.org/files/28278/28278-h/28278-h.htm. See also, Nien-he Hsieh, ‘Rawlsian Justice and Workplace Republicanism’ (2005) 31(1) Social Theory and Practice 115–42.

  71. Gourevitch, From Slavery to the Cooperative Commonwealth, supra, 69; see also, Karl Marx in his early writings, arguing that alienated labour, because it belongs to and is directed by another, ‘is thus not voluntary, but compelled, forced labour [Zwangsarbeit]’, cf. Roberts, Marx’s Inferno, supra, 139.

  72. Pope, ‘Labor’s Constitution of Freedom’, supra; see also Forbath, ‘The Ambiguities of “Free Labor”’, supra.

  73. Thirteenth Amendment, Constitution of the United States.

  74. See, e.g., the account in Forbath, ‘The Ambiguities of “Free Labor”’, supra.

  75. Lochner v. New York, supra.

  76. It might be legitimately asked whether this is a purely verbal argument. After all, if both Berlin and Rawls agree that economic circumstances make freedom worthless, then there exists a strong case for intervention in order that freedom actually be meaningful. What is the point of freedom that people cannot use? However, while labour-republicans and Rawls/Berlin might agree on some economic policies, the framing remains important: if public intervention is treated as an infringement upon freedom (as non-interference), then it is the very fact of intervention that requires justification; and the argument is reduced to balancing freedom against other values (economic security, welfare, well-being, etc.) This already reduces the range of possible arguments and justifications, justifications that would be available on the labour-republican understanding of freedom.

  77. As Pettit puts the point: ‘I do not interfere with you just through happening, like a natural obstacle, to be in your way or just through doing something that has the unforeseen effect of hindering you. Nor do I generally interfere with you just through allowing such an obstacle to get in your way, or through allowing another person to interfere: not, at any rate, unless contextual criteria give such an omission a positive interpretation.’ Pettit, ‘Freedom in the Market’, supra, 135. Notice how the words ‘unless contextual criteria’ necessarily qualify the clean, analytic distinctions that precede them, and accurately classify the entire enterprise as a question of moral judgement.

  78. MacCallum, ‘Negative and Positive Freedom’, supra, 325–26.

  79. S.I. Benn and W.L. Weinstein, ‘Being Free to Act and Being a Free Man’ (1971) 80(318) Mind 194, 197–98; see also the examples in Philip Pettit, ‘A Republican Right to a Basic Income’ in Basic Income: An Anthology of Contemporary Research 26 (Karl Widerquist et al. eds., Malden: Wiley Blackwell 2013).

  80. Benn and Weinstein, ‘Being Free to Act and Being a Free Man’, supra, 199.

  81. Ripstein, ‘Commodity Fetishism’, supra, 747.

  82. In the Indian context, the debate about the meaning of freedom becomes even more salient, because it marks the distinction between an enforceable fundamental right under Part III of the Constitution, and matters of policy, indicated by Part IV, but ultimately left to the discretion of the legislature.

  83. Clause 4, Karachi Resolution, supra.

  84. See Section III(B), infra.

  85. Clause 3, Karachi Resolution, supra.

  86. Clause 5, Karachi Resolution, supra.

  87. Pope, ‘Labor’s Constitution of Freedom’, supra.

  88. Clause 1(ii), Karachi Resolution, supra.

  89. Clause 1(v), Karachi Resolution, supra.

  90. Clause 2, Karachi Resolution, supra.

  91. Clause 11, Karachi Resolution, supra.

  92. Preamble, Karachi Resolution, supra.

  93. Pope, ‘Labor’s Constitution of Freedom’, supra, 942. Interestingly, the term ‘effective freedom’ is also used by Quentin Skinner in his discussion of Isiah Berlin’s example of the blind man who is ‘free’ to read, but ‘unable’ to do so. Skinner’s gloss on this is that the blind man is ‘formally free’ to read, but effectively unfree. Skinner, ‘A Third Concept of Liberty’, supra, 245. If we replace ‘effective’ with ‘real’, we can see how the Karachi Resolution represented a serious riposte to the view that treated freedom as non-interference and the absence of intentional coercion. It is also interesting to note that Berlin dismissed the concept of ‘economic freedom’—the exact phrase used by the Karachi Resolution—as something bordering on a conceptual error. Berlin, Two Concepts of Liberty, supra.


  94. See K.T. Shah, ‘A Note on Fundamental Rights’, 23 December 1946, cf. Shiva Rao, The Framing of India’s Constitution, Vol. II, supra, 36, 53.

  95. B.R. Ambedkar, ‘Memorandum and Draft Articles on the Rights of States and Minorities’, 24 March 1947, cf. Shiva Rao, The Framing of India’s Constitution, Vol. II, supra, 84, 87.

  96. Ibid., 100.

  97. Notice Ambedkar’s use of the words ‘subject’ and ‘governed’, borrowed from republican ideas of freedom and servitude.

  98. B.R. Ambedkar, ‘Memorandum’, cf. Shiva Rao, The Framing of India’s Constitution, Vol. II, supra, 100–01.

  99. Ibid., 101–02.

  100. See, infra.

  101. Discussion of the Fundamental Rights Sub-Committee, 27 March 1947, cf. Shiva Rao, The Framing of India’s Constitution, Vol. II, supra, 125–26.

  102. Discussion of the Fundamental Rights Sub-Committee, 28 March 1947, cf. Shiva Rao, The Framing of India’s Constitution, Vol. II, supra, 127-28; see also B.N. Rau, ‘Notes on the Draft Report’, 8 April 1947, cf. Shiva Rao, The Framing of India’s Constitution, Vol. II, supra, 147, 149.

  103. Draft Report of the Sub-Committee, 3 April 1947, cf. Shiva Rao, The Framing of India’s Constitution, Vol. II, supra, 137, 140.

  104. Thirteenth Amendment, Constitution of the United States.

  105. See e.g., Bailey v. Alabama, 219 U.S. 219 (1911).

  106. Parliament of India, Constituent Assembly Debates, Vol. III, 1 May 1947 (speech of K.M. Munshi), available at http://parliamentofindia.nic.in/ls/debates/vol3p4.htm, visited on 30 December 2017.

  107. Ibid.

  108. Ibid.

  109. Ibid. (speech of B.R. Ambedkar).

  110. Ibid.

  111. Ibid. (speech of P.K. Sen).

  112. Parliament of India, Constituent Assembly Debates, Vol. VII, 3 December 1948 (speech of Damodar Sarup Seth), available at http://parliamentofindia.nic.in/ls/debates/vol7p19.htm, visited on 30 December 2017.

  113. Ibid. (speech of B.R. Ambedkar).

  114. Ibid. (speech of Renuka Ray).

  115. Parliament of India, Constituent Assembly Debates, Vol. III, 1 May 1947 (speech of Dakshayani Velayudhan).