Liberalism is gentleness

Paternalism is a fool’s errand. The world is full of parents who wish to alter what they perceive to be their children’s suboptimal choices: do this, marry him, don’t talk to her. And it is full of states who want to compel people to do similar things: make steel, grow wheat, speak Marathi. 

Liberalism is an exercise in gentleness. The world should be gentler with its people, and their suboptimal choices, and their strange preferences. We take as granted, in the modern economy, that there are countless firms, and that these firms will experiment with new and inventive ways to organise themselves and use resources, that they will see the whole range of possibilities for substitution and innovation and act boldly. 

We take as granted that people have varied, multidimensional preference sets, and that everyone has a different equilibrium.  
And we say that we love that for them, and that we love their ability to make choices, and we love their different equilibriums and love their varied preferences, as we love them. 

On Calicut

Calicut is ancient — an entrepôt for as long as there have been maps. The Malabar Manual (a colonial administrator’s guide to the region) says that we have a certain mercantile hardiness; we were shipbuilders and traders; stubborn realists. On Beach Road, you can still trace where the Portuguese and the French trading posts used to be. Calicut makes practically nothing of value today, but it has transitioned into being a sleepy city of world literature and literary criticism. Every year, you can come here to see Pamuk and Chomsky and Duflo and Guha and Mukundan and Claudel and everyone else you can think of. You can be poor here without being impoverished. 

It is a tiny city; on a good day, it is only a fifteen-minute drive from the beach to the last bit of built-up area. It has some of the best food in the world, by any measure. There’s barely any traffic, most of the time, and the roads are wonderful if you like driving fast. There are beautiful beaches, and rivers and marshes you can boat through. 

Today, there are barely any jobs, so the city is full of the young and the old, students and retirees. As a result, there is a strangely wholesome nightlife, because the days are hot and humid. At 3AM, families are talking on the beach, the Latin American cafés that serve steak and salads are still open, and anyone can walk through any part of the city. There are two or three small, nice bars where the doorman will make sure to remember your name. You can go running at 2:30am and not have a care in the world. I loved being young here, despite all the other neuroses of being in a small town, because you could smoke a cigarette and drink a beer on the beach where the trees and the sand dune grass met the rocks and the sea.

Abstractions and Drafting

When you are writing laws you are testing words to find their utmost power. Like spells, they have to make things happen in the real world, and like spells, they only work if people believe in them.

Hilary Mantel, Wolf Hall

Legislative drafting, like contract drafting or software engineering, is fundamentally a problem of constructing the correct ontologies.

When you find the correct abstractions, things fall into place. When you have the wrong abstractions, you will find yourself constantly creating more complex procedures. A feature of bad abstractions is that they are harder to reason with.

One way we check for the existence of a modern, working legal system is by asking whether its abstractions have been successful. I mean “abstraction” in a precise sense, i.e., ‘the quality of dealing with ideas rather than events.’ 

It is by abstracting that we create general rules from specific disputes. It is by reasoning about those abstractions that we try to maintain consistency when comparable situations arise. Without those abstractions, you are just following your intuitions. Surely, the abstractions and our reasoning about them is driven fundamentally by intuition. But the fact that they are intuitions about the abstractions, as opposed to an intutition about “who should win”, introduces some rigour to the legal system. 

When your abstractions are successful, that means that your judges are reasoning about the abstractions, not principally about the case before them. When they fail, courts (where professional judges apply laws) devolve into durbars (where the sovereign dispenses justice).

As a drafter, your task is to find the correct abstractions, construct the correct ontology, and then execute on the mundane and rigorous work of converting that ontology into a text.

Examples of plain language drafting

  • The Draft Indian Financial Code is exceptional but was sometimes too much of a departure from traditional drafting. More detail and context can be found in the FSLRC Report.

  • The UK’s Mental Capacity Act 2005 is an example of good, clear drafting. You don’t have to take just my word for it. In PC and NC v City of York Council, McFarlane LJ said:

    37. The central provisions of the MCA 2005 have been widely welcomed as an example of plain and clear statutory language. I would therefore deprecate any attempt to add any embellishment or gloss to the statutory wording unless to do so is plainly necessary. […]

Further reading

Vidhi has published a plain language drafting manual (2017) and an updated SARAL manual (2023). They are both excellent India-centric resources for plain language drafting.

The Leap Journal has great posts (herehere) on the drafting process that rhyme with how I feel about the experience.

See Common Legislative Solutions (UK Cabinet Office, May 2022)

Microlawsuits

I wonder how BigLaw billing practices will adapt.

The speed at which a lawsuit is decided depends on the number of judges and their productivity. A judge is a scarce, treasured, exotic piece of human capital; a person who can speak with the voice of the common law. Judicial productivity has many factors: the raw efficiency of the judge; whether your court system is efficient; whether it is rigorous about timelines; whether it has integrity’; whether it is competent. (See Dutta et al., 2019). You have faster courts if you have higher judicial output per capita.

How much faster can you make courts? If you want the resolution time to be days or months, you need to increase judicial output per capita to levels which permit that resolution time. The complexity of the dispute doesn’t matter that much. When an ordinary lawsuit takes ten years, it is not because a judge has spent her fifties racking her brains for a solution to your property dispute. It is because your legal system is not built for fast resolution.

Now, let’s make it faster. Imagine that you have AI systems that put cheap intelligence at your disposal, that can read the record and deliver instantaneous results. You have near infinite judicial output. The per unit cost of resolution is near zero, and resolution time is measured in seconds.

[This would involve some structural changes to the legal system. Every person, when confronted with the sense that they have been wronged, runs a mental process that predicts whether they will actually get relief in courts. Everyone has a lawsuit inside them, and in most cases, that is exactly where it should remain. But imagine if they could just “Hey Siri” a lawsuit and get instant resolution. Presumably Siri could still tell you, in milliseconds, that your instant lawsuit was thrown out because you don’t meet some procedural requirement – but couldn’t a lawyer have told you that anyway? But why would you ask the AI lawyer when the AI judge would tell you the answer instantaneously anyway?]

This is not incredibly far off, because we already have instant resolution in low-stakes cases — these are usually dispute resolution procedures employed by companies to avoid lawsuits. When you demand a refund from a food delivery app, you are engaging with a dispute resolution process that is often faster and better than a consumer court.

But you wouldn’t use that process for anything important. Imagine a lawsuit, decided in seconds, about the boundaries of Sudan. The problem with this is not that people do not believe it is possible to interpret the boundaries correctly in seconds. The problem is that an incredibly fast resolution one way or another would seem like an illegitimate process tothe litigants. Resolution in a few months with a lot of agonising about the difficulty of the decision? Great. Resolution in a second? You have succeeded in producing a decision, but utterly failed at resolving the dispute – your litigants are raising their armies even as your AI judge’s HAL 9000 voice reads the judgment.

Courts are a branch of government, and so need legitimacy and authority to perform their functions. Even supremely efficient governments may lose the mandate of heaven. In Tiers (1984), Judith Resnik offers the example of a trial judge in New York who decided whether to sentence a defendant to 20 days or 30 days based on a coin flip. There was massive outrage and the judge was censured. Resnik asks:

What was so offensive? The coin flip produced an outcome, inexpensively and quickly. Moreover, the judge’s critics did not claim that the decision itself incorrectly reflected either law or fact, or that the time ultimately to be served by the defendant was unjustly long or short.

The complaint was about process. The coin flip offended this society’s commitment to rationality. The open embrace of chance as determinative was frightening. The decisionmaking procedure was also uncomfortably commonplace; people flip coins to decide who must wash dishes or go first in a game. State-backed orders to incarcerate are more seemly if made in a way that differentiates them from those involving dishwashing. The import of the judge’s decision, that a person had to spend many nights in a cell, was not reflected in the procedure. The community’s outrage expressed feelings that some decisions should be treated specially, perhaps garbed in ritual, and certainly made to appear rationally and carefully chosen.

Everything about the judicial process, including certain binding constraints on speed, are imposed by the need to ‘construct the authority of the court’ and ensure ‘a certain, careful process in each case.’ This is a requirement of solemnity, and to our monkey brains, doing things slowly means doing them solemnly and carefully.

There is a common law principle – de minimis non curat lex – which means that the law does not concern itself with trifling matters. When the claim is for less than a certain amount, it’s not important enough for the legal process. When a breach of contract is only a technical breach and doesn’t cause harm, the law refuses to intervene. You don’t waste the common law’s time on a ten dollar dispute. This is partly because judicial time is scarce. But partly it is also because it is hard to feel awe for an institution that deals with trivial things. One purpose of de minimis is to construct and maintain judicial authority.

To summarise, until you invent AI judges, your binding constraint is judicial output. After you invent AI judges, your binding constraint is sociology.

You need to now construct the authority of the AI judge. Aiming for AI judges who instantaneously provide decisions on par with the best human judges is a good start, but it’s ultimately unsatisfying. I recommend massive overambition. The quality of our legal decisions is presently affected by political and socioeconomic considerations; and also limited by our status as slightly-advanced chimps.

Instead, we should demand perfection from the AI judge. I am kidding, but only a little bit? In Taking Rights Seriously (1977), Ronald Dworkin invents a judge, Hercules, of “superhuman skill, learning, patience and acumen” who was capable of an internally coherent, logical understanding of the legal system. Posed with a legal dispute, he would construct an internally consistent theory of the state, of government, of law, and produce a decision that was consistent with that theory:5

You will now see why I called our judge Hercules. He must construct a scheme of abstract and concrete principles that provides a coherent justification for all common law precedents and, so far as these are to be justified on principle, constitutional and statutory provisions as well.

We might not accept an instantaneous decision from a machine if it were only a judge. But perhaps we might accept it from a machine that was the common law itself. As for me, I would tell Hercules to pretend to take at least a week on the case anyway, and hire a (human) PR consultant. And bodyguards. You know, just in case.

[I was unsurprised but nonetheless slightly disappointed to find out I wasn’t the first one to have thought about Dworkin's Hercules and AI. See, for e.g., Davis (2018), Goldsworthy (2019), or Wang (2023). See also Guerra-Pujol (2015).]

What I've been reading (July 2024)

Whole Earth Discipline, RAND's halcyon days, digital competition...

I have been reading very little over the last few months. That is, until I found Whole Earth Discipline by Stewart Brand on Patrick Collison’s bookshelf list. Brand’s argument is directed at the Green movement, arguing that environmentalists should be pro-nuclear, pro-density, pro-GMOs, and pro-geoengineering. He also made me finally appreciate trees. Every section is beautiful, in-depth, contains references to a ton of interesting sources, and single-handedly rekindled my reading habit. (I’ve tweeted some quotes.)

When RAND Made Magic in Santa Monica by Pradyumna Prasad and Jordan Schneider. “In short: RAND had the best and brightest people working with the best computing resources in an environment that celebrated excellence, welcomed individual quirks, and dispensed with micromanagement and red tape.” Anything by Pradyu comes highly recommended :)

India's Proposed Digital Competition Framework: The License Raj by Another Name by Shruti Rajagopalan and Shreyas Narla. The proposed framework is a heavy-handed attempt to regulate digital markets. It imposes arbitrary and ambiguous punitive obligations—which are yet to be completely known—on large digital firms, disregarding sound competition law principles and risking the stifling of innovation and investment.”

The long-run costs of highly competitive exams for government jobs by Kunal MangalReally enjoyed it, prompted me to get a copy of Karthik Muralidharan’s new book, which discusses government jobs and the bureaucracy in depth. Abstract:

Public sector recruitment exams can be highly competitive. Does this competition encourage candidates to develop generalizable skills, or do investments in exam preparation burden candidates who fail to get selected? I address this question by studying the impact of a partial public sector hiring freeze in the state of Tamil Nadu, India on male college graduates. The hiring freeze eliminated 86% of the usual vacancies. This increased the applicant-to-vacancy ratio for the remaining posts. Cohorts that were exposed to the hiring freeze delayed full-time employment, most likely in order to invest more time in exam preparation. A decade after the hiring freeze ended, the affected cohorts demonstrate a lower earning capacity, have delayed household formation, and appear more likely to remain unemployed. Together, these results suggest that highly competitive exams encourage candidates to make investments that are ultimately unproductive.

Ezra Klein. I listened to a lot of his podcast growing up, in its previous form at Vox (now titled “The Grey Area with Sean Illing” but you can scroll down to listen to Ezra’s episodes). I found it impressive that he helped successfully depose a presidential candidate over the last few months with his op-eds. So, that’s how I started binging. It ended with me scrolling through his old Typepad posts, and then two profiles, one by the New Republic and one by New York Magazine. And then a video from the World Bank where he tells researchers why no one reads their research. By far my favourite rabbit hole of the month.

How to Write a Lot by Paul Silvia is, by all appearances, a useful book — but I realised that it wasn’t going to help me about when Silvia wrote, “...if you like writing in coffee shops because you can have a great latte while illustrating how a method actor would play the role of ‘plucky assistant professor with an overdue book manuscript,’ then you need a new place” and I realised romanticisation is probably a better motivator for me than sheer discipline is. Probably this is why I don’t Write a Lot™. If anyone wants to give me advice on balancing full-time research with writing, I will be grateful.

I would also recommend a few other books, which I’ve started and read parts of, before I got distracted:

Anyway, perhaps you will hear from me again soon. I will try to write publicly more often, even if I cannot Write a Lot.™

Against Searching for Saints

Adam Mastroianni argues that we are using incentives poorly. His case has two parts.

First, he argues that we are operating based on a flawed theory of human motivation. He argues that people are neither jukeboxes (who only do good things when incentivised to do so) nor secret criminals (who will actively do bad things unless incentivised to do good things). Instead, we must recognise that intrinsic motivations and interests are powerful. In support of his criticism of incentive theory, he offers many examples of situations where people game incentives and obtain rewards without actually doing the behaviour that is incentivised.

Second, he has a positive case about how we should use incentives. He thinks that, instead of using incentives to modify behaviour, we should find the people who already exhibit the desired behaviour and support them. We should focus on finding good people (who do not need to be incentivised or coerced) and firing the bad people (who can only be redeemed through lengthy processes).

In Adam’s words:

The best way to use incentives, then, is to:

1) find the people who already want what you want

2) help them survive

Some basics

Incentive theory addresses solutions to a category of principal-agent problems. This is how Sappington (1991) opens:

“If you want something done right, do it yourself.” This age-old maxim has some of the major concerns of modern “incentive theory” at its heart. Incentive theory, however, generally focuses on tasks that are too complicated or too costly to do oneself. Thus, the “principal” is obliged to hire an “agent” with specialized skills or knowledge to perform the task in question. The central concern is how the principal can best motivate the agent to perform as the principal would prefer, taking into account the difficulties in monitoring the agent’s activities.

This principal-agent metaphor, the literature tells me, has broad application. Incentives by governments, by regulators, by employers — you can apply the principal-agent model to all of them and mostly understand incentive theory.

Marginal Revolution University’s video on principal-agent problems gives you the example of trying to get your car repaired. You don’t know how much your car repairs should cost, or what kinds of repairs the car needs. Let’s say the mechanic is incentivised to maximise his fee, and your incentive is to get the car repaired at the lowest long-run cost. Incentive theory and contract design are about trying to build contracts and arrangements which ensure that your interests are aligned.

Motivated agents

Let’s get back to Adam’s case. It skips the principal-agent problem, because Adam’s principal has already hired someone with aligned incentives (“good people”, “people who already want what you want”). These people, to be sure, exist in the incentive theory literature, and they are called “motivated agents” who are “characterised by increasing their effort, if their work generates not only a monetary return for them but also a benefit for a mission they support.” (Koppel and Regner 2019)

1) They are not evenly distributed

The natural distribution of interests produces guys who read Sartre at a coffee shop with a Marlboro Red hanging languorously from his lips more often than it produces people willing to work in trial courts. Our motivations and intrinsic interests are not always socially productive: playing Factorio, scrolling through Instagram, writing poetry about owls. I thought the point of incentives was to allocate ourselves to socially useful tasks, to transmute our interests in memorising anime trivia into computer programs and healthcare units.

I know normal distributions are an oversimplification, but I think they’re helpful as a way of thinking about this. The left tail of the normal distribution for “passion” consists of guys who have, well, very little passion. They want to sit at home all day watching TV or scrolling through Instagram.

The upper, or right, tail of the normal distribution consists of people Adam wants to hire. They are, in my life, the underpaid researchers who could make much more money at any given point in time by switching from physics or microbiology to building mediocre widgets for enterprise software systems - but simply will not. They are, in the lives of some of my friends, excellent doctors who work in the government system who could make much more money working in a private hospital.

The vast majority of people, however, are in the middle. We are neither secret criminals nor jukeboxes. We are morally grubby; we like money and dislike discomfort. We care about status and the opinions of our peers. We also have passions, not in a “fanatical religious devotion” sense, but in a “I like going to church” sense. In other words, we are human.

In many public services, you will find many people who see themselves as producing a collective good. They work hard, partly because they need to earn a living, but also because they believe the work they do produces a collective good. But it’s harder to find motivated agents in areas where you are not producing a collective good.

This is about passion, not skill. Even if you find a person who is a great engineer, that does not mean they will care about the particular tasks you have for them. Not all jobs evoke burning passion, and extreme dedication (thankfully) isn’t required in most jobs. Sure, we need to hire constitutional law theorists, but we also need to hire drivers and receptionists and mechanics and waiters. You have to deal with most people. You have to deal with bad apples. What are you going to do, give up?

2) They are hard to identify

Now, “picking the right people” as a solution understates the problem of finding them. Given perfect information, you would, of course, try to hire agents who would “perform as the principal would prefer” or “who already want what you want.” The problem is that people lie about being motivated agents. Especially if, like Adam, you put up a big sign saying “I want to hire motivated agents.” In individual interviews, distinguishing between truths and falsehoods about people’s internal motivations is extremely difficult. At scale, it is practically impossible

I know this from constitutional theory, which I understand much better than economics. Adam quotes Dune to say that “[g]ood governance never depends upon laws, but upon the personal qualities of those who govern.” This is correct. Except that the major developments in constitutional theory over the last few centuries have been about discovering that it is impossible for any system of government to reliably pick the “right leaders”. As I wrote a week or two ago:

In 1787, the Americans […] had a more structural, a more sophisticated theory of the human desire for power, of ego and ambition. They created three strong branches of government which tended naturally to conflict among themselves, but gave each of them “the necessary constitutional means and personal motives to resist encroachments of the others” (Federalist No. 51). They made the “provision for defense” commensurate to the “danger of attack.” They desired that "[t]he interest of the man … be connected with the constitutional rights of the place.

In other words, they used incentives and systems thinking! The last line about the “interests of the man” being connected with the “constitutional rights of the place” are literally about incentive compatibility.

There’s a few hundred years of constitutional theory dealing with the problem of preventing leaders from becoming tyrants, and then there’s Adam, saying “I would simply not elect tyrants.”

There’s a few hundred years of economic theory dealing with principal-agent problems and the difficulty of aligning incentives with imperfect information, and then there’s Adam, saying “I would simply hire the right people.”

Morality, motivations, and rewards

Adam’s people are devoted already, which means that, for some purposes, they leave the universe of people we need to motivate. A lot of people are passionate about medicine because one of their relatives died on an operating table. We are glad they channel their rage in this manner. We are no longer thinking about them. They will plug away at the problem, and we are happy about that.

Incentives have a role in getting a lot of people from “has interest in medicine because watches House MD” to “heart surgeon”. A passing interest does not survive gruelling years of medical school or an aversion to cutting open human beings. This is where I cue in Patrick McKenzie:

Are “interests” and “shared goals” enough to make someone stay in medical school? Is it enough to make them want to live in India’s most deprived villages, where their patients are?

There are not enough people who want to do this and are willing to be trained to do this, i.e. we have a scarcity of doctors. This scarcity is reflected in the price we are willing to pay for their services. What an incentive does is find everyone who could be plausibly made to apply their minds to a problem and gives them a reason to do so. The fact that the Bureau of Labor Statistics says doctors in the US make $239k is a signal that finds everyone who might be persuaded to go into medicine and gives them 239,000 reasons to do so.

And so we manufacture doctors by the tens of thousands. And as Patrick says, if one day, we realise we could realise many more units of healthcare by simply pressing a button and making the doctors redundant, we will press that button with a ruthless mind for efficiency.

There is an understandable, moral, good hearted temptation to reward people who love medicine instead of incentivising our fellow grubby humans to get through medical school. This is misguided self-righteousness. The doctors who don’t care about the incentive are the upper tail of the normal distribution. But for the rest of humanity, which consists of grubby little humans, incentives matter at the margin. They might or might not be better doctors than the saints, but there are more of them, and they produce units of healthcare in a world where units of healthcare are scarce.

We, as a society, are not motivated by finding saints and rewarding them. The saints will produce healthcare units anyway. We are motivated to ensure the production of healthcare units, and therefore, we are motivated to pay the hundreds of thousands of potential doctors who will cure diseases, even if they do not, at night, dream about clinical technique or stay up worrying about the suffering of a dying patient.

This might seem a little unfair. Why are we handing out carrots to the people for whom the carrots are the objective, as opposed to the people for whom medicine is the objective? But being a little unfair is alright if you aren’t in the business of moral redemption.

We are not interested in ‘rewarding only the truly deserving’ or creating Valhalla. We are interested in creating good outcomes. May we always be clear-eyed enough to tell the difference.

Thanks to Pranav Agarwal for his detailed comments and contributed paragraphs which improved this essay considerably. My thanks and apologies to Judah, who sent me Adam’s piece two months ago, suggested I write a response “in a couple of hours”, and helped me to finally get this out.

State capacity: prescribing generic drugs edition

Medical Council of India (MCI) regulations require all doctors to prescribe drugs using pharmacological names (like Paracetamol) instead of brand names (like Dolo). The regulation is directed at doctors who get kickbacks from pharmaceutical companies to prescribe their drugs.

Over the last few months, the case of Kishan Chand Jain v Ethics and Medical Registration Board has been listed before the Chief Justice’s bench in the Supreme Court. The petition wants the regulation enforced strictly and coercively: conduct surprise raids, track prescriptions, take disciplinary measures.

But this won’t solve the problem. The MCI has already issued circulars warning strict disciplinary action if doctors irrationally prescribe brand names. Before we demand court orders, we must grapple with the structural reasons why the regulation has been ineffective.

The regulation against prescribing brand names failed because the knowledge and the capacity to enforce it didn’t exist and still does not exist. The monitoring of lakhs of prescriptions and the conduct of raids in tens of thousands of hospitals is a difficult task. There is significant discretion in the hands of frontline officials. The stakes are high – a mistake means punishing an innocent doctor.

Who is to carry out this task? Under Indian law, it is the state medical councils (SMCs) or, if an SMC does not exist, the Ethics and Medical Registration Board (EMRB). SMCs are not capable of implementing the regulation consistently and fairly. Few medical councils have a public complaints procedure or publish their proceedings or penalties issued. And that is if a functioning state medical council exists in your state at all. A study by the Vidhi Centre for Legal Policy has found that state medical council laws have not been implemented in many states.

Theoretically, in these cases, the Ethics and Medical Registration Board (EMRB) is supposed to step in. But it has been three years since the National Medical Commission Act 2019 came into force, and the five-member EMRB has three vacant seats, including that of its president. The EMRB, therefore, is not a promising backstop.

Some will argue that a lack of capacity should not prevent the government or the medical councils from making regulations. Perhaps an order from the Supreme Court or a push from the Ministry for more stringent enforcement might have positive effects. This is a common pattern in Indian regulation. Often, there is a sudden push from the ministry or a court to strictly enforce a law or a regulation.

We must be wary of the tendency to authorise enforcement first and build capacity later. There is little reason to welcome enforcement actions by an organisation with low capacity. Some officers will go to hospital after hospital, pharmacy after pharmacy, and evaluate prescriptions en masse. They will be compelled to meet unrealistic targets by making an arbitrary number of enforcement actions. In the haste to show results, and in the absence of procedural safeguards, enforcement has a tendency to become unjust and coercive.

Instead, thoughtful and effective regulation involves a more comprehensive analysis. It involves thinking carefully about the problem, assessing the jurisdiction and powers of the regulator, evaluating the costs and the benefits of the regulation, and drafting it precisely so that it obtains the intended outcome. It involves thinking about technical feasibility and procedural safeguards before authorising a single enforcement action. It means acquiring a more sophisticated regulatory toolkit.

In contrast, MCI Regulations contain vague drafting and moralistic exhortations to doctors. They should be revised top to bottom. Societies may have many preferences about how doctors should act. These preferences should only be regulations if the government has the capacity to enforce them. The alternative is a regulator with wide powers and low capacity — a combination which almost uniformly produces poor results.

There are other ways to promote the use of generic drugs. We can work on making doctors more sensitive to price, and making both patients and doctors more aware of generic alternatives. Union and State governments can improve pharmaceutical regulation, make it easier to trust generic drugs in the market, and regulate the marketing activities of pharmaceutical companies. While these measures are difficult, they are more practical than nation-wide enforcement actions that seek to assess the legality of each prescription.

Authority

Indians live, “fanatically at odds, with their different diets and their incompatible gods”, between frontiers delineated by ragged lines on a map: the Line of Control, the Radcliffe Line, the Line of Actual Control, the Actual Ground Position Line in Siachen, the Durand Line. To speak of the Indian state is to legitimize an authority which can use force on all persons that live between the glacier and the ocean. It means accepting, in practice if not in theory, an authority that has executed guerillas, held cities hostage, crushed rebellions. The existence of a state indicates the existence of “a military power resting on force, so centralized, so necessarily heedless of the individual.” (Korematsu)

Eventually, states are made to realise the foolishness of using the lathi and the rubber truncheon to do more than maintain a brutal social and political order. Only so many peasant rebellions can be crushed, only so many famines weathered, only a finite number of hangings under the banyan tree can occur before state authority thinks “we cannot possibly go on like this.” Forget democracies; kings realise, sooner or later, that “[y]ou cannot threaten any individual and escape the consequences.” Or they were made to realise it, as King John was made to realise it by rebellious barons. They were made to make concessions, as he was made to do in the meadow which is called Runnymede. Or they lost the Mandate of Heaven, faced rebellion; heads, spikes, walls.

The kings sometimes won these battles, but it became increasingly clear that arbitrary power came at too high a cost. To justify their power and retain a mandate, they acquired new bases for legitimacy: preventing and punishing crime, producing food, liberating the poor, curing disease, settling disputes. Even these new bases of legitimacy, they later discovered, are counterintuitively made harder by having arbitrary, unbounded power. It is harder to perform certain state functions by the sword. The unity of action and vigour and ambition that animates the executive is unsuited to a body that makes laws or decides disputes. We discovered the separation of powers, principal-agent problems, coordination problems, rules-based systems, guided discretion, democracy, independent courts – major leaps forward in the technology tree of statecraft.


What did these theorists believe, at least in the parliamentary system? They believed in taming power by requiring it to have an internal coherence. Power flowed from the people to Parliament, which makes law. The government, the brutal state which in another life crushed rebellions and executed guerillas, was tamed and made a creature of Parliament. It was to obey Parliament’s commands, live by the rules Parliament set. It had the power to enter a home or arrest a person or tax a holding only to such a degree as Parliament permitted. And individuals could go to court, with the vagrant and brutal power of the state arrayed against them, and say “you have no statutory authority”, and if a judge (a lawyer, a man committed to this theory of government) commanded it, the brutality of the state would recede.

In 1787, the Americans went even further in Philadelphia. They had a more structural, a more sophisticated theory of the human desire for power, of ego and ambition. They created three strong branches of government which tended naturally to conflict among themselves, but gave each of them “the necessary constitutional means and personal motives to resist encroachments of the others” (Federalist No. 51). They made the “provision for defense” commensurate to the “danger of attack.” They desired that “[t]he interest of the man … be connected with the constitutional rights of the place.”


At Council House on Raisina Hill in 1950, India adopted a charter that divided up arbitrary authority into branches of government and secured rights to individuals and communities in perpetuity.  This is where the tale becomes a tragedy, or a work in progress, depending on how chronocentric you are. These innovations in political theory were hard to internalise, and so the Indian state did not. At best, it internalised them in a maudlin, superficial way. At worst, it remained, at once, centralised, disorganised, and brutal.

India is a country where Supreme Court judges write brimming, saturated paeans to liberty while the police, as a matter of course, beat citizens with little to no provocation. It is a country where the typical regulatory environment is a feudal one, “where regulators lord over practitioners, threaten them, extort from them…” It is a country where there is still no distinction between an administrative diktat and a rule made under a statute. The standard textbooks and commentaries describe the area of law dealing with the distinction between administration directions and statutory rules as “unsatisfactory.” (See MP Jain and SN Jain, Principles of Administrative Law (9th ed. 2021) (chapter on “Administrative Directions”). 

Those of us who have an emotional attachment to the rule of law, to a government of laws and not of men, find this dispiriting. But we are also patient. The Constitution of India is a flawed document — only as flawed as the people who made it, only as flawed as the population that is supposed to live by it. But it has created in India an order that has survived for generations, “longer than anything ever lasts.”

And we are still young.

Advice on being patient

Don’t do too many things at once. Do a few things, do them well, do them quickly. Finish things, one after the other, and move on.

Surprisingly, completing projects is fairly difficult. Completing a draft, for instance, means doing a variety of things that must necessarily happen slowly. These include fact checking, proofreading, or in other words, making sure your sentences say exactly what you mean. These tasks cannot be completed in a burst of activity.

This is precisely the moment where the temptation to switch projects or tasks is greatest. But being able to wait until you’re done is what gets things done. In other words, you need patience. Impatience means you put off finishing things because you don’t feel like you’re making progress. Ben Kuhn is excellent on this:

As a programmer, I tried to make sure that I was only ever working on one thing at a time. Even if I got stuck on that one thing—say I was blocked on waiting for a tech partner to give me API documentation—I’d let myself stay stuck instead of sliding off to work on something else.
In the short term, this made me less efficient, because I’d spend less time programming and more time staring vacantly at the ceiling. But if I stared vacantly for long enough, I’d eventually get mad enough to, e.g., reverse-engineer the partner’s API in a fit of rage. This resulted in me shipping my most important projects faster, hence getting faster compounding growth.

Set aside large spaces of time to write and think during the day and the night. I think sometimes about one of my colleagues, and how they sit in front of a screen patiently: looking at each clause, evaluating each word, weighing them slowly, and rearranging their order.

Write and read more patiently and diligently. Do this every day, with metronomic precision. Paragraphs can be produced in bursts of inspiration but the real work of writing happens with slow forebearance under the meditative spell of the word processor. Ensure that every sentence is composed carefully, slowly, with regard for exactly what is meant.

Martin Amis is dead

One of my favourite writers, Martin Amis, died recently. In a substantial way, Amis taught me to write. On the shelf in front of me, there are three books: Money (1984), The Moronic Inferno (1986), and Experience (2000). While Money is merely a little dog-eared, the pages of Experience are crowded with sticky notes, tabs, and underlinings. Amis’s painfully self-aware, precise, graphomaniacal voice gave me a sense of literature, a sense of decorum, and a sense of what it was to be young. Alongside his always-dark extroversion, he exuded gravity. He was funny and detested the humourless. To quote a devastating footnote from Experience

By calling him humourless I mean to impugn his seriousness, categorically: such a man must rig up his probity ex nihilo.

Amis said in The War Against Cliche (as a response to anti-elitist, anti-standards democratization in literary criticism) that in the long term “literature will resist levelling and revert to hierarchy. This isn’t the decision of some snob of a belletrist. It is the decision of Judge Time, who constantly separates those who last from those who don’t.” 

He has given me great joy over the years. I have been rereading his work, and introducing it to my friends. I begin by saying that Martin Amis died recently, and that I loved his books very much, and that here is something by him they might like to read. And they will hear him say, “Welcome! Do step on in – this is a pleasure and a privilege. Let me help you with that” and before he begins a story, they will hear him say, “It’s no trouble. There’s a lift… Oh, don’t mention it – de nada. The honour is all mine. You are my guest. You are my reader.” Martin Amis, Inside Story (2020), Preludial.

I was his guest, I was his reader, and it is the least I can do to ensure that he continues to be read.