Nyaya, niti and Amartya Sen's Riti

Vivek Iyer

In the old days, Indians like Mahatma Gandhi would come to England to qualify as barristers so as to
return home and get rich by fleecing their clients.

As part of their prescribed course of studies, they would hear with amusement of the horror which the
general population evinced at the prospect of an 'Eyre'- i.e. the visit of a bench of Judges empowered to
inquire into any malpractice or act of omission or commission since the last such visit. Embodied in the
‘Eyre’ was the notion that Justice was something ‘top-down’ and ‘substantive’- i.e. based on an
examination of all existing arrangements and the punishment and rectification of every deviation from
what the Judges considered to be Righteous. The ‘Eyre’ was not concerned with procedures. It could act
arbitrarily and proceed in any manner it pleased.

Was the Eyre welcomed? Did it help the poor, the vulnerable, the marginalized?

In Cornwall, the Eyre of 1233 caused the great mass of the population to flee into the woods. Again and
again, the people would petition their King not to proclaim a General Eyre. Justice would impoverish them
and tear asunder every affectionate or social bond between individuals because each party would fear
that the other might shift the blame for some culpa levis onto their own shoulders.

Justice, though more than paying for itself by detecting irregularities and levying fines, was not desirable
for a prosperous and harmonious Society. On the contrary, the people were prepared to pay the King to
be excused a General Eyre which would kill the golden goose of prosperity by too closely examining how
it came to thrive.

As a matter of Public Policy, it was better if there were no theory or practice of Justice save as something
supplied in response to a demand arising out of crimes or torts suffered by individuals. In return for
Justice being turned into a service such as the market might provide- i.e. one which was demand driven,
and where the ordinary people serving on the jury made determinations of fact- the people were prepared
to pay taxes agreed on by their own Parliamentary representatives.

This story about the evolution of the English Judicial system had a familiar ring to Indians from small
towns- like Mahatma Gandhi's own Porbandar or Rajkot. They knew very well that if the Prince develops
a passion for Justice, the prosperity of his demense would perish. That is why they showed little
enthusiasm for reforming the, demand driven, Indian judicial system- or even any great passion for
Constitutional Law, which, prior to Independence, was left to obscure 'Eighth Standard Pass', direct entry
clerks like V.P Menon.

Sadly, after Independence, we had a new type of Indian student being sent to England. Instead of the
Law, they studied Economics before returning to impoverish their own country without enriching
themselves.

Amartya Sen was one such student who boomeranged back to take high positions in the very Colleges
and Universities which had misled his ilk.

In medieval India, there was a style of literary composition known as 'riti' which drew upon, or itself
illustrated, a 'ritigranth' or manual of composition. Such compositions were 'second order'- i.e. derivative
of classical models- and far removed from nature or, indeed, reality.

It is tempting to speak of Sen's oeuvre as an exercise in 'riti'.

Consider his derivative work, 'An Idea of Justice' whose 'ritigranth' is Rawl's 'A theory of Justice'.
Before doing so, however, let us ask ourselves a simple question- In formulating a theory of Justice
should we begin by deciding what, ideally, Justice would imply or else decide how, in practice, Society
could be made more just?

The answer is NEITHER. Before doing something we should consider whether there is any point doing it
at this time, and, what potential costs and benefits might be associated with the process. After all, if we
have a prescriptive theory then, it would remain the case, that to put it into practice would involve a
periodic 'General Eyre'- which would be fatal to the commonweal. It would kill the golden goose. That's
why English Law took the path of legal fictions so as to become a pure Service industry which, currently,
earns a substantial 'invisible' surplus for the U.K.

Sen, writing his big book, never pauses to ask himself whether his project is worthwhile.
This contradicts his own stated preference for focusing on outcomes.

Consider this extract from Sen's 'The Country of First Boys'- a book whose great utility is that reading it
cures insomnia.

In examining the demands of social justice in India, it is important to distinguish

between an arrangement-focused view of justice, on the one hand, and a realisation-
focused understanding of justice, on the other.
A guy who makes a living selling widgets should examine the demand for widgets- who buys them and
why. He should also know something about the supply of widgets- why there may be a sudden shortage
of the thing or why widgets might become a 'repugnancy market' or become subject to price controls or
rationing or whatever.

But nobody needs to distinguish between an 'arrangement focused view' of widgets and a 'realisation-
focused understanding' of widgets. This is empty verbiage. Either 'arrangement focused' means
'determinants of supply' or it means nothing. 'Realisation-focused' means determinants of demand or it is
sheer bullshit.

The market for Justice, a Service, is a little different from the market for widgets, a commodity.

Justice should be seen as just in its procedures and just in its outcomes. It should not be arbitrary nor
subject to interference by Ideologues. It is highly mischievous to suggest otherwise.

Sometimes justice is conceptualised in terms of certain organisational arrangements –

some institutions, some regulations, some behavioural rules – the active presence of
which indicates that justice is being done. The question to ask here is whether the
demands of justice must be only about getting the institutions and rules right.
This is a foolish question. Getting the rules set right only matters if the outcomes are what is desired.

Consider the following scenario- I go to a South Indian restaurant and order a masala dosa. The waiter
chops off my arms. I complain that I have not received my dosa. Moreover, I did not want my arms to be
chopped off. The waiter chops off my legs. I roll myself out of the restaurant to the nearest hospital. The
restaurant sues me for not paying my bill. Their lawyers claim that their 'intentions and rules' were correct.
Chopping off arms and legs is an effective way of supplying dosas. Do my lawyers really need to prove
that this is not the case? Sen would say 'yes. It is indeed important to distinguish between an
arrangement-focused approach to providing South Indian food and a realization focused understanding of
the same. It may be that the Restaurant did not pay enough attention to promoting gender equality in
chopping off my arms and legs. On the other hand, my refusal to pay my bill may reflect homophobia or
racial discrimination. This is a complicated problem and we need to properly examine all relevant factors-
including the possible impact on the Higher Education of the Nicaraguan horcrux of my neighbor's cat- so
as to properly respond to the 'demands of justice'. Indeed, we must compute all possible future states of
Society. What if chopping off my arms and legs resulted in my not voting for Modi or Trump or Brexit or
some similar sort of moral catastrophe?

Proceeding beyond them, should we not also have to examine what does emerge in the
society, including the kind of lives that people can actually lead, given the institutions
and rules and also other influences?
No Dr. Sen. We should not do anything so stupid. This is a recipe for endless delay and increasingly
stupid and hysterical discourse. A South Indian Restaurants 'intentions and rules' don't matter. All that
matters is that it provide tasty masala dosa and not chop your arms or legs off. If this is not compatible
with your 'Idea of Justice', it is because you have shit for brains.

Human beings and, more recently, human institutions, have evolved over hundreds of thousands of years
to fully internalise the hiatus between means and ends such that there is an almost instinctive 'ex ungue
leonem' test we can apply. Just as, seeing the claw of the lion, we intuit the presence of a lion, so to do
we understand that Education can only be produced in an Educated manner, Culture in a Cultured
manner, and Justice in a fair and just manner.

The Judiciary's procedures- which to increase its own efficacy need to be transparent and 'common
knowledge'- do all relevant examining in a protocol bound manner such that the outcomes are what is
Socially desirable. But 'relevant examining' is a movable feast. It evolves as Society evolves. So long as
'Voice, Loyalty' & most importantly 'Exit' obtains, we have reason to believe that the Legal system will
adapt and 'pay for itself'.

Thus, a 'Law & Economics' approach is warranted because, as in Management theory,

Judicial processes are internally evaluated with respect to outcomes. The Coasian enterprise internalizes
associated externalities. The legal system can do the same. It is a matter of common sense that an
organisation which isn't doing what is being paid to should be deprived of revenue till it mends its ways.
The same is true of a profession or vocation which ceases to be socially utile.

Sen subscribes to a different view- he believes that the Law is a Dickensian monstrosity which evolved
along the lines predicted by Franz Kafka and Lewis Caroll. In this context, it seems reasonable to plead
for a little sanity, some basic humanity, on the part of Judges and Lawyers.

The basic argument for a realisation-focused understanding, for which I would argue,
is that justice cannot be divorced from the actual world that emerges.
OMG! Talk of the bleeding obvious! Where in the world is a system of Justice, paid for out of taxes, which
is 'divorced from the actual world'? No doubt, the Indian legal system is dysfunctional in several respects,
but it possesses the tools to correct itself. There is no need for a Philosopher to stick his nose where it
does not belong.

Of course, institutions and rules are very important in influencing what happens, and
also they are part and parcel of the actual world as well, but the realised actuality
goes well beyond the organizational picture.
Nonsense! The organisational picture is either dysfunctional, in which case it should be denied money, or
it is focused wholly on 'realised actuality'. Why does Sen think organisations can flourish while being
wholly divorced from the world? Justice isn't a worthless branch of Academia.
This is a critically important distinction in the history of theories of justice, including
those in Europe and the West.
It is not critically important. It is very very silly. Why pretend Courts operate like something out of Alice in
Wonderland and that taxpayers are too stupid to do anything about it?

But I begin with a demarcation that has a clear role in Indian intellectual debates,
going back to the Sanskrit literature on the subject. Two distinct words
– niti and nyaya – both of which stand for justice in classical Sanskrit, actually help
us to differentiate between these two separate concentrations.
This is sheer nonsense. Niti means 'Policy'. Sen's first paper was published by a Journal called 'Arthaniti'
which means 'Economic Policy'. Nyaya means Justice. A Court is called a 'Nyayalay'- 'Abode of Justice'-
just as a School is called a 'Vidyalaya'- 'Abode of Knowledge.

It is true, of course, that words such as niti and nyaya have been used in many
different senses in different philosophical and legal discussions in ancient India, but
there is still a basic distinction between the respective concentrations
of niti and nyaya.
There is a big difference between Public Policy- which is formulated by politicians and administrators- and
Justice- which is the province of wholly independent Judges.

Among the principal uses of the term niti are organisational propriety and
behavioural correctness. In contrast with niti, the term nyaya stands for a more
comprehensive concept of realised justice.
India rejected arbitrary 'Justice on horseback'. It is part of 'Niti' to have an independent Judiciary which
acts as a check on the Executive and the Legislature.

India's 'Planning Commission'- which at one time may have thought of itself as above the Law- is now
known as 'Niti Aayog'- and is a Public Policy advisory body.

In that line of vision, the roles of institutions, rules, and organisation, important as
they are, have to be assessed in the broader and more inclusive perspective of nyaya,
which is inescapably linked with the world that actually emerges, not just the
institutions or rules we happen to have…~~~
Institutions, rules and organisations are only important if they are wholly focused on outcomes. Acts of
omission or commission on their part can be made justiciable by either the Legislature or 'due process'
Judicial activism.

It is foolish to desire a return to the ideology of the Command Economy whereby idealogues could claim
to be achieving 'Social Justice' by robbing and killing millions of innocent people.
A realisation-focused perspective makes it easy to see the importance of the
prevention of manifest injustice in the world, rather than focusing on the search for
perfection.
Does Sen really believe that there are Judges in some country who are 'focused on the search for
perfection'? Which planet has he been living on?

If someone is the victim of a perceived injustice- e.g. breach of contract, tort or malfeasance- that person
can approach the Court for redress. Public Policy is about improving access to the Legal system and
doing 'incentive compatible' mechanism design.

Nobody except Sen thinks that Jurists sit around designing a perfect Judicial system for an ideal world.

As the example of matsyanyaya makes clear, the subject of justice is not merely about
trying to achieve – or dreaming about achieving – some perfectly just society or social
arrangements, but about preventing manifestly severe injustice (like avoiding the
dreadful state of matsyanyaya).
Hobbesian Anarchy has nothing to do with Justice. It is suppressed by the strong arm of a Stationary
Bandit who is himself above the Law. An evil Dictator may be better at eliminating street crime than an
affluent Liberal Democracy.

The term ‘matsyanyaya’ means ‘the big fish eats the little fish’. In Sanskrit jurisprudence it has the
meaning ‘the bigger reason swallows the smaller one’. Thus if I say you have wronged me by killing my
Mother, the big reason for prosecuting you is that you are a murderer. I may also mention that you
referred to me as fat which hurt my feelings. However, though this may explain my animosity against you
and, perhaps, throw an unflattering light upon your character, it should be disregarded. It is not relevant to
your being prosecuted for the crime of homicide.

The big factor preventing manifestly severe injustice is rigorous policing and harsh punishments. It may
be that promoting ‘the idea of justice’persuades, at the margin, some rapists and robbers to change their
ways. But this would only have a small effect. Thus, the juristic principle of ‘matsyanyaya’ says that
manifest injustice must be detected and punished with vigilance and severity. Gassing on about the ‘idea
of Justice’ can be omitted. It is irrelevant.

Sen believes otherwise. He writes-

For example, when people agitated for the abolition of slavery in the eighteenth and
nineteenth centuries, they were not labouring under the illusion that the abolition of
slavery would make the world perfectly just. It was their claim, rather, that a society
with slavery was totally unjust. That much, they argued, was absolutely clear, even if
it might be very hard to identify (not to mention, achieve) a perfectly just society.
This is nonsense. Slavery was illegal in the limited monarchies of Western Europe. However, the slave
trade flourished in the New World in a manner which Evangelicals and Quakers felt was un-Christian.
Paradoxically, it was Christian resistance to the enslavement of Native Americans which contributed to
the Transatlantic trade. Similarly, it was the abolition of Slavery in the West Indies which led to indentured
servitude for thousands of poor Indian people.

Sen pretends that the abolitionists were interested in Justice. The truth is they were motivated by the
Christian Religion and the Ethical Values of Quakers, Pietists and other 'Dissenters' who had risen up by
their own thrift, honesty and enterprise. The Enlightenment was ambiguous about slavery because it was
developing a 'scientific' theory of racism which rejected Religion's claim that all souls were created equal.
Thus several Enlightenment thinkers thought that it was wrong to enslave White people but perfectly fine
to enslave ‘for their own good’ people of my complexion.

Sen says-

Abolition of slavery was a matter of prevention of severe injustice and a significant

advancement of justice; it was not meant to be an answer to the transcendental
question of identifying a perfectly just society, or ideal social institutions.
It was meant to be an act of Christian virtue purging an irreligious practice which arose out of bestial
greed.

It was on that basis that the anti-slavery agitation, with its diagnosis of intolerable
injustice, saw the pursuit of that cause to be an overwhelming priority.
The Abolitionists were successful because they were respected for their Piety in an increasingly Religious
Age. Slavery, by contrast, had been justified by some 'Enlightenment' philosophes as arising out of the
natural inferiority of Black people. If Sen really believes that England was against ‘intolerable injustice’
when it abolished slavery in India in 1861, then he must also believe that England’s rule over his native
Bengal involved no ‘intolerable injustice’.

That historical case can also serve as something of an analogy that is very relevant to
us today in India. There are, I would argue, similarly momentous manifestations of
severe injustice in our own world today in India, such as appalling levels of continued
child undernourishment (almost unparalleled in the rest of the world), continuing lack
of entitlement to basic medical attention of the poorer members of society, and the
comprehensive absence of opportunities for basic schooling for a significant
proportion of the population.
The root cause of all these maladies is lack of family planning, which is a perfectly legal choice, on the
one hand and, on the other hand, widespread corruption in the Public Health, Education and Food
distribution Services, which can and ought to be punished by law. However, this would require proper
investigation because the crime is being committed in a secret manner.

By contrast Slavery in America was legal in certain States, whereas helping a Slave to gain Liberty by
fleeing the South, was severely punished by Law. It is true, however, that for purely economic reasons-
viz. that slaves were fungible assets- the Black American slave was better fed, housed, trained and
medically treated than most Indian people at that time. But, had Indians been able to emigrate to
America, they too would have seen a like amelioration in their lot.

This raises an important question. Why speak of 'manifestations of severe injustice' when you yourself
earn a lot of money in the UK and the US while poor Indian people who may have a superior 'idea of
Justice' are not permitted, by Law, to enter such paradises?
Whatever else nyaya must demand (and we can have all sorts of different views of
what a perfectly just India would look like), the reasoned humanity of the justice
of nyaya can hardly fail to demand the urgent removal of these terrible deprivations
in the world in which we actually live.
What on earth is 'the reasoned humanity of the justice of nyaya'? How is it different from plain 'humanity'?
Humanity demands we help starving people. Reasoning is irrelevant. Sentiment is what is important.
Revealed Religion tells us each human being is created with a soul equal to any and all others. Science
can make no similar claim.

India has laws regarding Right to Food, Education etc. Justice, as represented by the Courts, can and
does direct Government Agencies to take action in a time bound manner.

Political philosophy can be of no use here. This is a practical problem which actual Public Policy and real
world Jurisprudence can tackle.

Still, we must admit, poverty has a Malthusian aspect. The good news is that improving female economic
participation creates a virtuous circle encompassing demographic transition.

Sen, ignoring the principle of ‘mastyanyaya’ says-

This is not only a matter for political philosophy, but also a central issue in political
practice.
How is it a 'matter for political philosophy'? The thing is wholly useless. As for 'political practice'- i.e.
logrolling and virtue signalling- that's what created the problem in the first place. Dr. Jack Preger- an
actual Medical Doctor though his first degrees were in Econ & Pol Sci- worked in Calcutta. He explained
how things could be fixed. Nobody listened to him. Instead, he was constantly harassed by the Indian
Govt. because of claims that he was actually a Missionary. He explained that he had been thrown out of
Bangladesh because he had blown the whistle on wrongdoing by International NGOs and Christian
Charities. In Calcutta, it was actual Christian Missionaries who were complaining about his Medical work
and research on corruption within the Public Health System. They tried to get him deported by falsely
claiming he was converting poor Hindus by bribing them with medicines and food.

Sen, the 'Mother Theresa of Economics' writes-

It is easy enough to agitate about new problems that arise and generate immediate
discontent,
In a Democratic country, yes. The thing can or ought to be easy. Why? Because problems can and
should be fixed immediately by improved mechanism design.

whether it is rising petrol prices

There is evidence that agitations in this respect can and ought to be diffused by changing incentives for
those whose demand is inelastic such that they are left no worse off- i.e. the income effect is neutralised.

The 'Yellow Vest' movement in France was about a 'Green' tax whose Income effect was not
sterilised. This is the sort of thing Mathematical Economists ought to be doing. If not Slutsky then Frank
Ramsey provided the formula long ago.
or the fear of losing national sovereignty in signing a deal with another country.
These too are, of course, issues of importance, but what is to me amazing is the quiet
acceptance, with relatively little political murmur, of the continuation of the
astounding misery of the least advantaged people of our country.
Sen may have 'quietly accepted' all this and thus have been able to emigrate to greener pastures many
decades ago. But lawyers and politicians and administrators who remained in India did the jobs they were
paid to do. This meant having to permit India to grow a little so as to generate resources for altruistic, or
populist, schemes.

Sen may think that everybody should first feed and educate the poor before talking about stuff that
interests them. However, that isn't what he himself did. It is a little late in the day to pretend that his own
trajectory was that of an Jean Dreze and that he was holed up in jhuggi eating daal-baat rather than a
Master of Trinity presiding over a richly laden High Table.

The crowding out of political interest in the colossal and persistent deprivation of the
underdogs of the Indian society through the dominance of more easily vocalisable
current affairs (important as they may be) has a profound effect in weakening the
pressure on the government to eradicate with the greatest of urgency the most gross
and lasting injustice in India.
Sen is being silly. 'Vocalisable current affairs' don't have a crowding out effect. Empty talk- like Sen's own
worthless sound-bites- does not use up scarce resources.

There is something peculiarly puzzling about the priorities that are reflected in what
seems to keep us awake at night.
Sen pretends that the suffering of the poor keeps him awake at night. The result is yet another content-
free book designed to put us all to sleep.

But, this is just a case of market driven bis repetita placent.

In an earlier book- 'the Idea of Justice' Sen made great play on the distinction in Sanskrit between Nyaya
and Niti- i.e Philosophical Jurisprudence and actual Public Policy- speculating on how Kautilya's cunning
Niti might have laid the foundations for Ashoka's Buddhist Nyaya by drawing, perhaps, upon the scholarly
work of T.H. White who described a similar relationship between Merlin's Magic and Arthur's Camelot in
the Walt Disney Classic 'the Sword in the Stone'.

Moore foolishly yet, Sen also mentions the Gita- a sacred text for Hindus and thus a work we
actually do know quite a lot about- unlike what actually happened in Ashoka's reign.

The word Niti, in Sanskrit and Hindi, refers to ethical conduct or policy. Kutniti means a crooked type of
conduct or policy- like that of Kautilya.

An example of Kautilya's kutniti is the manner in which he recruited his successor. He gets a dhobi
(washer-man) to annoy the learned Pundit to such an extent that the fellow loses his temper and kills the
dhobi. Kautilya then gives the Pundit a choice- serve the state or pay the penalty for man-slaughter. The
Pundit revenges himself by framing Kautilya and having him killed. Sen's equation of Kautilya with Niti,
not kutniti, is utterly mad.

What of Ashoka's Nyaya? The guy was real pissed off when he heard that some Jain monks were
worshiping the Buddha by making out he was actually one of their own rubbishy Tirthankaras. So Ashoka
offered a bounty for decapitating Jain sadhus. One morning, inspecting the day's harvest of heads, he
found that his own special chum had been killed by mistake. Ashoka then ended the killing of Jain monks,
or, at any rate, stopped paying for it from the Privy Purse.This was actually a good thing- Governments
should leave the provision of decapitation for the Jain monastic community to the market- and Sen, the
economist is right to commend Ashoka's Nyaya. However, since Sen is now also regarded as a
Philosopher- and moreover one with an Indian surname and thus a 'native informant'- his silliness is
merely par for the course.

Underlying the notion of Niti (that is, ethical principles as guiding one's conduct) is that of Dharma (Duty/
Righteousness/Religion) which considers the nexus of obligations and entitlements that connects
individuals and encompasses the wider world. Dharma, which the Greeks translated as 'eusebia'- i.e.
'pietas- is founded upon Vrta- the vow or vocation which binds an individual's choice of righteous conduct.
The concepts of vyavahara and acara are relevant here. These are the procedural rules, observance of
which is incumbent upon an individual belonging to a wider collective. Where all collectives in a given
Society observe rules which are mutually compatible, that Society is considered Dharmic and a reflection
of the Cosmic Order. However, if all possessed Dharma, i.e. had internalised that upon which all is
based, then no actual judging or Judges would be needed as no transgression could arise.

Nyaya refers to Justice, in the sense that Quine pointed out, of being a stasis or equilibrium rather than
an active process requiring a General Eyre.

To say this is not nyaya is to say this is unjust and contravenes either the law or the cosmic order. The
Nyaya School of philosophy is concerned with Logic and Epistemology in Hinduism. In Amartya Sen's
native Bengal, a 'navya nyaya' School developed which provided Hinduism with a particular type of
rationalistic, or 'natural', theory of jurisprudence. Interestingly, Sir William Jones, the Judge who founded
modern Indo-European philology, learned Sanskrit from Pundits of this school. Moreover, some Pundits
of this School embraced the English scheme of Law and, a little later, Raja Ram Mohan Roy, a Unitarian
polemicist, eagerly adopted the Utilitarian theory of Jeremy Bentham. However, India as a whole did not
adopt the notion of natural law. Utilitarianism remained a dogma of the India Office but had no place in
the Justice system. Rather legal concepts- e.g. property- continued to be the thought of as 'samskaras'-
i.e conventional or virtual, and thus empirical and mutable, rather than real, substantive, analytic or a
priori.

In Sen's view, underlying the notion of Nyaya is the older concept of Rta- the Cosmic Order- which was
not conceived of as eternal and unchanging. Rather Rta went through a sort of evolutionary cycle. The
emergence of matsyanyaya- by which Sen means the situation where the big fish eat the smaller fish- is
evidence that the Cosmic cycle is in a phase of decline and dissolution. Alternatively, in Mimamsa- the
traditional Juristic hermeneutic- the maxim is a conventional lawyer's term for the 'big reason prevails over
the small reason' thus giving a criterion to distinguish ratio from obiter dicta.

As an empirical matter, the Law would become more restrictive during a period of 'avasarpini' cosmic
decline. In Hinduism this licenses the doctrine of exigent circumstances 'apadh dharma' which, however,
can be interpreted as either enjoining greater strictness or no strictness at all.

Under the older view, harsh vows or more restrictive vocational observances-'Vrtas'- would become
obligatory for wider sections of Society because of the adverse tide of events. Yet, at the same time, any
substantial increase in observed license would militate to the conclusion that what was formerly prohibited
has now become the norm.

Niti and Nyaya are linked, as are Dharma and Rta, by the theory of karma- or re-birth. Ethical policy or
behaviour, good niti, upholds Dharma and enables Rta to right itself after the total dissolution at the end
of the retrograde time cycle. The pay-off for the individual is that the good karma thus generated grants a
better future birth- or, indeed, total salvation.
It should be noted that while Niti and Nyaya are words that can be used outside a theistic or soteriological
context, they then lose any ethical meaning. Niti might mean a crafty policy or an individual religious
observance expected to bring personal salvation without any benefit being provided for the wider
community.
Nyaya, outside a Theistic context, would mean the principles or laws that operate in the actual world
according to our empirical experience of it. Thus 'the enemy of your enemy is your friend' would be a
statement of Niti and 'Might is Right' is a Nyaya maxim.

Sen, however, has decided to use the terms Nyaya and Niti in a wholly different way so as to bring out
what he believes to be a fundamental difference between two rival approaches to a theory of Justice.

The question arises whether the distinction Sen makes is in fact useful, or indeed, meaningful.

Let us make an analogy with my own proposed distinction between the terms 'fat bastard' and 'corpulent
swine'. This is a highly meaningful distinction for me personally- as I am generally referred to as 'Iyer, the
fat bastard' to distinguish me from another gentleman of the same name whom, it is my fervent wish, may
be termed 'Iyer, the corpulent swine'. You will readily grant, if I am not mistaken, that there is a certain
amount of affectionate raillery, not to speak of covert admiration, in the nickname 'fat bastard' whereas
the epithet 'corpulent swine' vividly conveys the coprophagous grossness of that other fat Iyer bastard to
whom I am compelled to refer.

In this case, clearly, the distinction I have introduced is of the highest utility and could become a topic of
the most fertile philosophical investigation and literary exposition.

Is the same true of Sen's Nyaya/Niti distinction?

Sen says that Niti is about deciding what the ideally just situation ought to be and then devising
institutions to bring it about. Thus, Rawlsian Justice as Fairness would be 'Niti'.

Except it wouldn't. Not in Sanskrit. Why? Policy and ethical conduct can not begin from a position of
disembodied omniscience, behind the Rawlsian veil of ignorance, because- by a fundamental axiom of
Dharmic thought- only the fully liberated Sage possesses that. But such Sages give up worldly life, they
cease to interact with other beings under the rubric of reciprocal obligation and entitlement- i.e.
omniscience can not give rise to a contractarian theory.

Niti is relevant to us only because our existing situation is characterised by problems regarding
uncertainty, information asymmetry, preference revelation and so on. Indeed, as in the story of Moses
and Khizr, who meet at the barzakh between 2 seas, so too in the Gita, we see that the omniscient
person will always violate deontological, rule based, Niti since it is no longer a meaningful concept for a
person free of all informational and instrumental constraints.

Why did Sen decide to call Niti the stuff he wasn't doing? Well, Niti is linked in Indian languages to stuff
like Morality and Rules of Conduct and 'high thinking plain living' and so on. In other words, Niti is part of
Bourgeois pi-jaw and Hegelian sittlichkeit and other unfashionable stuff like Institution building for better
Governance through things like transparency, cracking down on corruption and rent seeking,
decentralization of decision making (subsidiarity), equity audits and other such stuff on which countries
like Cuba or West Bengal's Left Front regime score badly.

Nyaya on the other hand was more general, more abstract, and hence, in his eyes, more prestigious. Sen
decided that Nyaya meant operating on the actual outcome matrix in time t which he assumed could be
known and changed at that very time. Sadly, this is nonsense. If Nyaya is concerned with the outcome
matrix at time t, then it can only be known, that too very imperfectly in time t+x and policy instruments can
be implemented only at time t+x+y with the results only coming through with a further unpredictable,
hysteresis heavy, time lag.
Moreover any diagnostic instrumentalized for policy purposes at time t+x would, probably, for that very
reason, have lost its effectiveness by Goodhart's law. In other words the more we seek to act upon the
outcome matrix the less reliable information we will have, ceteris paribus, about it in every future time
period.

In the Indian context, if one instrumentalizes Caste as a proxy for Social exclusion, then freezing up the
economy with controls and irrational fiscal incentives becomes attractive because though ruining the
country, and negatively impacting social mobility, it nevertheless makes a substantive (Sen would say
Nyaya) rather than procedural approach more attractive. In other words, first freeze the social geography
by disabling the engines of mobility- viz. education, emigration and enterprise- and you have an excuse
for any arbitrary 'direct' action which simply bypasses private and institutional notions of morality and just
proceeding.
However, the Indian experience is that you can't freeze Social Geography. Even if you ensure that the
Govt. Schools are crap, you can't stop working class folk (irrespective of caste or religion) from paying
money to private schools to get their kids a shot at an education.

In other words, Nyaya in Sen's formulation is something that can't be known, can't be action guiding in a
predictable or reliable manner, and thus is utterly meaningless for any practical purpose. Yet Sen wants
his 'Nyaya' coz it's a way of smuggling interpersonal comparisons of Utility- not just Utility but also other
empty words like Freedom and Development and Empowerment, Exclusion, degree of Aryan blood (or is
it Democracy?) and so on back on the agenda. How could he get away with it? Well, it was the 70's,
everybody was discovering their inner nigger- Sen, it turned out was a black man, and- as Gayatri Spivak
explains 'strategic essentialism' is okay coz gesture politics is way cooler and safer for our students
than actual politics and, in any case, Edward Said had already pointed out that it was irresponsible to
teach 'Gulliver's travels' to Post Grads at Ivy League without issuing repeated H&S warnings that
Jonathan Swift WAS NOT RECOMMENDING EATING YOUR OWN SHIT- YOU WILL NOT GET A
HIGHER GRADE BY EATING YOUR OWN SHIT ON THIS COURSE!- rather Swift was doing something
called 'irony' which, ironically, meant pretty much the same thing as like irony? Y'know? Except, like, aint
it ironic that people who overuse the word irony like totally don't get it, right?

Anyway, this particular silliness of Sen's worked out well for him because interpersonal comparisons of
Utility, Freedom, Development, Exclusion etc, etc, is what people with power do- it's what power is about.
Guys from head office are constantly inventing some new performance measure which will screw things
up in some novel way. Why? Rossi's 'metallic laws' make a startling prediction.

The Iron Law of Evaluation: The expected value of any net impact assessment of any large scale social
program is zero.
The Iron Law arises from the experience that few impact assessments of large scale social programs
have found that the programs in question had any net impact. The law also means that, based on the
evaluation efforts of the last twenty years, the best a priori estimate of the net impact assessment of any
program is zero, i.e., that the program will have no effect.
However, the business of designing performance indexes and holding seminars to thrash out
methodological issues is profitable and empowering to academics enabling them to interface with big
bureaucrats and get to utter sound-bites on T.V.
Since Niti would suggest ditching the whole project as corrupt and a waste of resources, Nyaya has to be
invoked to continue with the practice- which in any case could be justified as keeping the serf-class of
Grad Students busy building pyramids for the great Professor's sarcophagous and thus in a permanent
state of deferential stupor.

Thus, so long as Power is inequitably distributed within the Academy, interpersonal comparisons are
going to be big business within those constipated bowels. Human Development Indexes- apart from
cooking the books to prove silly things like Cuba is better off than Florida and Bangladesh verily is
Heaven- function like evaluative methods in State funded Education- i.e. they are manipulable in highly
pathological ways w.r.t outcomes, not to mention being resource costly and breeding cynicism and
careerism amongst those caught up in its rigmarole.
How about keeping Sen's 'Nyaya' around for 'thought experiments'? Well, Einstein's gedanken showed
how stuff like Absolute Space and Time or hidden variables and so on actually fucked up scientific
thinking. It is actually harmful to a Research Program, to retain a word- i.e a variable- to point to
something that we can't know or control except for some purpose purely polemical or idiotically
ideological. Sen has spoken of 'second order' public goods- i.e. the campaign for the provision of public
goods. Notice he isn't talking about alethic arguments for Public goods coz Truth is itself a Public Good.
Second order Public Goods must be based on the propagation of lies- emotive propaganda. However,
subsidizing second order public goods, after the dead weight loss has been considered, is more likely to
lead to less public good provision as the former crowd out the latter. The second order public good is like
Sen's 'meta-preference' against whatever you are addicted to. It might lead (if there is no alethic,
utilitarian, and therefore first order preference, that has negative cross elasticity of demand with the
addictive product or range of products) to more consumption of demerit, addictive shite. In other words,
the State could spend all its resources organising sit down strikes to demand public goods- with the result
that no public goods at all are produced.

In any case, Sen ignores the fact that his Nyaya is (in the linguistic sense) extensional not intensional-
hence public discourse faces a halting problem and is doomed to remain phatic rather than meaningful.
Sen also ignores the Jorgenson's dilemma aspect (i.e. how licit is it to treat deontic statements as if they
are alethic?) which by itself generates a lot of aporias. In plain Hindustani- ethics is 'insha' not 'khabar'.

The point about Niti is that by respecting the informational and instrumental constraints of actual agents,
Niti-talk can alter your Ethos positively and, in that sense, is Ethical. Not so Nyaya nonsense. Rawlsian
Justice as fairness is a pedagogic exercise of Theological derivation designed to foster 'anukrosha' or
empathy. Given Rawls's background and the location of his bully pulpit- nothing else was meant w.r.t Sen
'Nyaya'.
Sen hasn't taken on board, but must even at his advanced age retain at least a vestigial awareness of, a
lot of Behavioral Ec stuff & Cog Sci stuff which rigorously fuck in the ass all his unstated assumptions
seven times till Sunday. The fact is Emotions are now thought of as 'Darwinian algorithms of the mind' for
both individual and collective decision making. A theory of Social Choice which ignores the signalling,
coordinating, and strategic functions of Sen-tentious non-alethic, value laden, second order, emotive
rhetoric belongs in the crapper.

When Narendra Modi says 'I incentivize consensus in Village Panchayat elections by giving a bonus to
non-contested councils'- a case could be made for Modi as reflecting best practice in current Voting
theory. When Sen speaks- fucked are we all and fucked must we remain.

Ultimately, the problem with people like Sen, who appear to be but aren't actually, banging the drum of
Justice and Human Rights, is that they have added uncertainty and all sorts of perverse incentives and
signal extraction problems to Public Policy and so there's a good case to institute a moratorium, if not a
roll back, on that shite.

Sen tells us we Indians must focus less on Niti- though that is something we can do something about and
ourselves benefit by doing- and more on Nyaya- which we can do nothing about.
Why? Well, Sen himself decided not to do asymmetry of information, preference revelation, auction
design, mathematical politics, behavioural Ec, and the other very fruitful avenues of research Rand Corp
Game theorists had opened up. He was sticking with an old fashioned, Benthamite, type of Social Choice
theory where an omniscient Central Planner can frictionlessly re-allocate resources and make
interpersonal comparisons of utility, and so on. This was not, it turned out, a fruitful for Economics or
Psychology or anything at all but it fitted well with a type of Moral Philosophy or Political Philosophy-
without-the-Politics which certain other star fish academics, equally stranded on the beach by pi-jaw's
retreating tide, were now practicing.

Oh! and the other thing is, it looked radical, maybe even Communist, without being any such thing.
In other words, Sen had opened a way for 'eel wriggling' bureaucrats and anti-Poverty parasites to make
vacuous statements without every committing themselves to things like properly specified and
monitorable Human Rights while still appearing to be on the side of the poor.

Thus, surprise! surprise!, Sen's Nyaya turns out to be kutniti- the corrupt international diplomacy of the
Development and Anti-Poverty parasites.

Is Sen's position something to do with the fact he's Indian- that too an upper class Hindu?
Like- is it an Indian thing? Maybe it's in the Bhagvad Gita or something?
Here's what Sen said about the Gita-
Question: In your new book, The Idea of Justice, you speak a lot about the difference
between niti (institutional justice) and nyaya (realised justice). Do you think we have too much niti in India
and too little nyaya?
Prof Amrtya Sen: The short answer is yes. Niti has huge appeal and this applies to the great as well as
to the non-great. In the Bhagavad Gita, Arjuna’s position has much to commend it. I am not saying he
should not have fought the war, but his doubts were not dismissable, in the way that Krishna dismissed
them. Krishna is clearly a niti person.
How peculiar it is that someone as non-violent as Gandhiji, who was very inspired by the Gita, was on the
side of Krishna, who is making Arjuna fight a war and kill people, when Arjuna is saying maybe I
shouldn’t kill! The Mahabharata ends with success, but also with grief, desolation, with women weeping
for their lost men and funeral pyres burning in unison.
What actually happens in the Gita? Well, you have a piquant situation where a blind King is being told
what Krishna said to Arjuna, on the battlefield, by his minstrel, Sanjaya, who has been granted clairvoyant
powers.
Now both Arjuna and Krishna have powers of second sight (The Mbh delights in this sort of symmetry).
Arjuna had been granted chaksuchi vidya by a demi-god he'd defeated. Thus he knew that he will end up
killing his beloved Guru and Grandsire.
Lord Krishna (Devakiputra in the Chandogya Upanishad) had an even higher type of second sight and, in
any case was the omniscient, all action causing, Supreme Godhead.
Now Krishna, as charioteer- bound by Suta dharma so to speak- had the job of raising Arjuna's spirits. An
ordinary bloke would have said 'Oy, Arjun mate, don't you know both Guru Drona and Grand Sire
Bhishma have received the boon that they can not be killed and that death will come to them only at the
moment that they themselves will and decide? So long as the 2 of them are there, they will defend your
cousins. So your only job is to keep them busy- preventing them hurting your people- until everybody gets
sick and tired of the stalemate and your cousin is forced to settle.'

Now Krishna did know what would happen at the battlefield. He had arranged it all himself. This is the
delightfully dramatic aspect of his incarnation. His shtick was to pretend to be like a cowboy, or a naughty
baby, or a charioteer, or whatever, when actually he was the Lord of all driven and motivated by perfect
compassion which is the one true, indefeasible, form of Absolute Justice. Precisely, because he was
omniscient, Niti had no meaning at all for him. I don't need to observe the rules of double entry book
keeping to calculate how much money is in my Bank Account coz I have the password and can get my
balance immediately. If you have perfect information you can go for substantive rather than procedural
rationality- i.e. you needn't bother with search procedures and institution design and other stuff that
looks deontic (but isn't so necessarily. While solving a maths problem, we may 'follow a rule'- i.e. an
algorithm not because we are duty bound to do so but coz we have some empirical evidence that this
yields a result close to what we desire).

Sen interprets Krishna's advise 'do your duty' to be deontological, and therefore Niti based, but totally fails
to notice that
1) what one's duty is remains an unknown. The Mbh is highly symmetric (as it must be to conserve karma
and dharma- by Noether's theorem- unless it is actually just a dissipative midden of mindless accretions
and interpolations). To understand the Gita we must look at the symmetrically, equal but opposite,
situation where Arjuna wants to kill his elder bro but Lord Krishna stops him saying the Law is very subtle
and pretty much impossible to grasp. The Gita, in literary terms, represents an epoche. It is dramatic, not
didactic.
2) Krishna, as the Supreme Godhead, is revealing himself to be the puppet-master here- i.e everything is
Outcome based. The game has been fixed in advance. There is no Niti here at all. The only question is
whether Arjun will turn against his pal when he discovers he is actually God Almighty and responsible for
this whole shit-storm. There is a good reason why Arjun does not turn against Krishna. It is that in
disclosing his Cosmic Form- Krishna is, in effect, killing himself, for (as he later reveals) to disclose your
own great merits is to kill yourself just as to insult another is verily to have murdered him. In fact, the
reader's Bhakti (emotive devotionalism) is increased when we see Krishna's apotheosis is at a tragic cost
to himself.

Since no human being can be involved in worldly affairs while having full knowledge of Nyaya- i.e. the
intensional Law- the formula to work out what will happen at time t+1 if you change x at time t- it follows
that we have nothing but Niti- character building, institution building, but experimentation and observation
are also part of that- like Yuddhishtra having to learn Game theory.

Sen is simply ignorant of the Gita. His comments are jejune. But, perhaps, one should envy him his
puerility.

In the Mahabharata, we find that the Just King- Yudhishtra- must learn probabilistic game theory- this
suggests that Niti does not specify ideal states but evolutionarily stable strategies as grounding its praxis.
Yudhishtra himself is characterized by empathy, compassion and readiness to take the smaller share so
as to get a positive sum game off the ground. However, if ther is no gradient of altruism then the game
crashes- 'pehle aap, pehle aap mein gaadhi choot gaya'- In 'after you' 'no, after you," both missed the
train.
The one ethical theory repeated throughout the Mahabarata is that 'The tigers can not exist without the
forest. The forest can not exist without the tigers. The Kauravas and the Pandavas (the warring cousins)
are the Tigers and the Forest.' There is no suggestion that Tigers are better than Forest or vice versa or,
indeed, that Pandavas are better than Kauravas. They are interdependent not mutually antagonistic in
their quiddity.

What happens at Kurukshetra- what the Gita is about- is a parallel to what happens to the Khandava
forest. One holocaust makes the other necessary. This is Nyaya as a sort of Celestial book-keeping
which makes zero accommodation with human intentionality & cognitive capacity, while Niti is but the
hilarious prattle of the little fledglings who talk because they can not fly.
Though Mbh conserves karma and dharma- it acknowledges that both from the ultimate point of view are
empty. This follows when we consider that Vyasa has 4 sons- Pandu, a great conqueror but one
governed by the RAJSIC (passionate, thymotic) Guna (quality). Blind Dhritirashtra who is TAMSIC
(inertia, darkness, passive attachment) and fosters the MANYU (dark anger born from envy) of his son
Duryodhana. Vidura who is SATVIC (Truth seeking, just and self controlled) and is the champion of Niti-
but ultimately futile for all that. Finally there is Suka who goes beyond Vyasa becoming one with the
Universe because he has transcended the Gunas.
The message for ordinary people who are moved to a feeling of loving devotion by seeing how Lord
Krishna sacrifices himself in the Gita is that this change of heart by itself cancels karma and dharma. You
no longer feel 'I am born from such and such family, and have such and such physical and mental
characterisitics. This is a binding constraint on me. I can not do otherwise than follow the path already
marked out. What is it to me how people in superior or inferior stations conduct themselves? Mine is a
lonely furrow from which it is profitless to lift my eyes."
If the MhB were a completely unique Scripture, having no similarity or connection to other Holy Books (as
interpreted by Spiritual savants) then, perhaps, we should only pay it attention if the people of that book
distinguish themselves in War or Wealth accumulation or Scientific achievement. However, reading the
MhB gives an insight into the true glory of other Scriptures and systems of thought and this is the correct
proof of its relevance today.

In the Bible, you may consider the story of the slaying of Zimri and Kosbi- this is an example of halachah
vein morin kein- the law such that if it is known, disallows that very action it otherwise makes mandatory.
Since all laws are broken when one law is broken we see that the relationship between Niti and Nyaya is
such that the revelation of Nyaya nullifies Niti till, thus becoming the cause of its own death, a second
cosmic cycle (in this case, wave of ibbur) can begin.
Subtle ideas. Subtle not Sen-tentious.
But, fuck it, the guy is just an academic. Give him a break already. At least he didn't start a hedge fund
which lost billions of dollars of other people's money. And, bottom line, the guy responded to his Nobel
prize with great humility and patriotism- wishing his achievement to reflect as much glory as possible on
both Bangladesh and India. But this shows Sen has good Niti- he is a principled person. The Nyaya
outcome (to use his terminology one last time), however, is bad because he has fed the outrageous
complacency of the Indglish speaking public w.r.t stuff like
1) the notion that Famines can't happen in a democracy. East Bengal experienced two big famines after
two different transitions to Democratically elected Governments. Sen was a child during the first famine.
But he was an academic during the second.
2) Bengal and Kerala weren't actually fucking up the life-chances of their hugely talented people but, in
some mysterious manner, superior to America coz the life expectancy of a black man in a crack house in
N.Y is lower than a black man not in a crack house in East Bengal.
3) Indians don't need to study their own culture in their own languages- coz who needs Hindutva?
Divisions is Society arising from Caste, Gender, Region and so on will just melt away- or have already
done so. So you don't need to bring people together on the basis that God alone is the superior, the
knower, the guide. Thus the Gita really has no value except to show how Lord Krishna was an utter rogue
and Indians are completely stupid for still letting themselves be redeemed by His all compassionating, all
encompassing, Activity.