C. Raj Kumar on The US Supreme Court
Professor C. Raj Kumar is spearheading the initiative to establish India’s first global law school known as the Jindal Global Law School as a part of the proposed O.P. Jindal Global University to be located outside New Delhi (Sonipat, Haryana) and less than an hour from the Supreme Court of India in the heart of New Delhi. He was a Rhodes Scholar at the University of Oxford, UK, where he obtained his Bachelor of Civil Law degree; a Landon Gammon Fellow at the Harvard Law School, where he obtained his Master of Laws degree, and a James Souverine Gallo Memorial Scholar at the Harvard University. He also obtained a Bachelor of Laws degree from the University of Delhi, India; and a Bachelor of Commerce degree from the Loyola College of the University of Madras, India. Professor Kumar has held consultancy assignments in the field of human rights and governance. He is Consultant to the National Human Rights Commission in India. He has been a Consultant to the United Nations University, Tokyo; United Nations Development Programme; and the International Council for Human Rights Policy, Geneva. He has advised the Commission to Investigate Allegations of Bribery or Corruption in Sri Lanka and the National Human Rights Commission in India on issues relating to corruption and good governance.Professor Kumar’s areas of specialization, include, human rights and development, corruption and governance, law and disaster management, comparative constitutional law and legal education. He has more than hundred publications to his credit and has published widely in journals and law reviews in Australia, Hong Kong, India, Japan and the U.S. His three co-edited books are Human Rights and Development: Law, Policy and Governance, Tsunami and Disaster Management: Law and Governance, and Human Rights, Justice and Constitutional Empowerment.
Kumar: Well, I mean, as most of us students of law or those who are familiar with constitutional law will recognize that the US Supreme Court does not, you know, does not… very rarely look at comparative law, very rarely draw upon principles of international human rights law or international humanitarian law, for that matter. There are probably a few judges in the US Supreme Court, notably Justice Briar, who occasionally refer to some principles of comparative law, which the decisions of court, other courts. Now, this is also part of the culture and tradition of judicial decision-making in different countries. Now, I mean, I, for one, would strongly argue that courts increasingly should look at different legal traditions and to see how courts have approached problems. And, you know, it’s interesting, comparative law, or comparative judicial decision-making, reference to drawing upon what other courts are doing, this does not necessarily need for the court to actually accept those decisions. It’s… We are the first stage where, you know, even to draw upon is problematic for some judges. For example, Justice Collier of the US Supreme Court. Now, he would probably not be in favor of even drawing upon, even examining or considering the judgments of the South African Supreme Court or some other, you know, courts in the world. Now… So US Supreme Court is an example of how where the issue of comparative judicial decision-making is in a very, very evolutionary stage, and there is a lot more work to be done. But there are also, you know, courts like the South African Supreme Court and, to some extent, the Indian court but also courts in other parts of the common law world, in Australia, where drawing upon foreign jurisprudence is not at all unusual. In fact, if you look at the US, the Indian Supreme Court’s decision in the last 60 years, they have significantly drawn upon, and, in some ways, sometimes rejecting it, that it may not be applicable for the Indian context, or sometimes accepting it, the US Supreme Court decisions, the court of the House of Lords and the English courts’ decisions, and, for that matter, including courts of other jurisdictions. So the point is that the notion or the concept of judiciary, one country’s judiciary drawing upon the jurisprudence and experience of other countries’ judiciary is indeed a subject matter of huge debate even among scholars. It is not a settled issue. Just as there are people who have a very strong view as to how do we interpret the Constitution, for example. While some people argue that Constitution is a dynamic, evolutionary document and that it’s a living document and it has to be interpreted in tune with the current situation that prevails in the society, there are some others who have a very different view that have to look at what the founders had in mind while formulating the Constitution. Just as that issue also invite a sort of different debate, even this is, but one thing I would say is that while different countries are evolving increasingly, the problems of a legal system, problems a country faces are problems of a legal system. As much as we sometimes think it to be unique and distinctive, in reality they probably are not. Meaning that, in many ways, in quite a number of issues, it is entirely possible that what the US Supreme Court is actually deciding on a particular issue of law is pretty similar to what a South African Supreme Court or an Indian Supreme Court and other court is deciding, and it is, it’s… I would say, it becomes almost a duty and responsibility on the part of learned judges to know what is happening in other countries and other societies. I see this to be a knowledge-enhancing, knowledge development process, and that’s why comparative law becomes very useful when it comes to judicial decision-making.
C. Raj Kumar says domestic courts should consider different legal traditions.
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Political division is nothing new. Throughout American history there have been numerous flare ups in which the political arena was more than just tense but incideniary. In a letter addressed to William Hamilton in 1800, Thomas Jefferson once lamented about how an emotional fervor had swept over the populace in regards to a certain political issue at the time. It disturbed him greatly to see how these political issues seemed to seep into every area of life and even affect people's interpersonal relationships. At one point in the letter he states:
"I never considered a difference of opinion in politics, in religion, in philosophy, as cause for withdrawing from a friend."
Today, we Americans find ourselves in a similar situation, with our political environment even more splintered due to a number of factors. The advent of mass digital media, siloed identity-driven political groups, and a societal lack of understanding of basic discursive fundamentals all contribute to the problem.
Civil discourse has fallen to an all time low.
The question that the American populace needs to ask itself now is: how do we fix it?
Discursive fundamentals need to be taught to preserve free expression
In a 2017 Free Speech and Tolerance Survey by Cato, it was found that 71% of Americans believe that political correctness had silenced important discussions necessary to our society. Many have pointed to draconian university policies regarding political correctness as a contributing factor to this phenomenon.
It's a great irony that, colleges, once true bastions of free-speech, counterculture and progressiveness, have now devolved into reactionary tribal politics.
Many years ago, one could count on the fact that universities would be the first places where you could espouse and debate any controversial idea without consequence. The decline of staple subjects that deal with the wisdom of the ancients, historical reference points, and civic discourse could be to blame for this exaggerated partisanship boiling on campuses.
Young people seeking an education are given a disservice when fed biased ideology, even if such ideology is presented with the best of intentions. Politics are but one small sliver for society and the human condition at large. Universities would do well to instead teach the principles of healthy discourse and engagement across the ideological spectrum.
The fundamentals of logic, debate and the rich artistic heritage of western civilization need to be the central focus of an education. They help to create a well-rounded citizen that can deal with controversial political issues.
It has been found that in the abstract, college students generally support and endorse the first amendment, but there's a catch when it comes to actually practicing it. This was explored in a Gallup survey titled: Free Expression on Campus: What college students think about First amendment issues.
In their findings the authors state:
"The vast majority say free speech is important to democracy and favor an open learning environment that promotes the airing of a wide variety of ideas. However, the actions of some students in recent years — from milder actions such as claiming to be threatened by messages written in chalk promoting Trump's candidacy to the most extreme acts of engaging in violence to stop attempted speeches — raise issues of just how committed college students are to
upholding First Amendment ideals.
Most college students do not condone more aggressive actions to squelch speech, like violence and shouting down speakers, although there are some who do. However, students do support many policies or actions that place limits on speech, including free speech zones, speech codes and campus prohibitions on hate speech, suggesting that their commitment to free speech has limits. As one example, barely a majority think handing out literature on controversial issues is "always acceptable."
With this in mind, the problems seen on college campuses are also being seen on a whole through other pockets of society and regular everyday civic discourse. Look no further than the dreaded and cliche prospect of political discussion at Thanksgiving dinner.
Talking politics at Thanksgiving dinner
As a result of this increased tribalization of views, it's becoming increasingly more difficult to engage in polite conversation with people possessing opposing viewpoints. The authors of a recent Hidden Tribes study broke down the political "tribes" in which many find themselves in:
- Progressive Activists: younger, highly engaged, secular, cosmopolitan, angry.
- Traditional Liberals: older, retired, open to compromise, rational, cautious.
- Passive Liberals: unhappy, insecure, distrustful, disillusioned.
- Politically Disengaged: young, low income, distrustful, detached, patriotic, conspiratorial
- Moderates: engaged, civic-minded, middle-of-the-road, pessimistic, Protestant.
- Traditional Conservatives: religious, middle class, patriotic, moralistic.
- Devoted Conservatives: white, retired, highly engaged, uncompromising,
Understanding these different viewpoints and the hidden tribes we may belong to will be essential in having conversations with those we disagree with. This might just come to a head when it's Thanksgiving and you have a mix of many different personalities, ages, and viewpoints.
It's interesting to note the authors found that:
"Tribe membership shows strong reliability in predicting views across different political topics."
You'll find that depending on what group you identify with, that nearly 100 percent of the time you'll believe in the same way the rest of your group constituents do.
Here are some statistics on differing viewpoints according to political party:
- 51% of staunch liberals say it's "morally acceptable" to punch Nazis.
- 53% of Republicans favor stripping U.S. citizenship from people who burn the American flag.
- 51% of Democrats support a law that requires Americans use transgender people's preferred gender pronouns.
- 65% of Republicans say NFL players should be fired if they refuse to stand for the anthem.
- 58% of Democrats say employers should punish employees for offensive Facebook posts.
- 47% of Republicans favor bans on building new mosques.
Understanding the fact that tribal membership indicates what you believe, can help you return to the fundamentals for proper political engagement
Here are some guidelines for civic discourse that might come in handy:
- Avoid logical fallacies. Essentially at the core, a logical fallacy is anything that detracts from the debate and seeks to attack the person rather than the idea and stray from the topic at hand.
- Practice inclusion and listen to who you're speaking to.
- Have the idea that there is nothing out of bounds for inquiry or conversation once you get down to an even stronger or new perspective of whatever you were discussing.
- Keep in mind the maxim of : Do not listen with the intent to reply. But with the intent to understand.
- We're not trying to proselytize nor shout others down with our rhetoric, but come to understand one another again.
- If we're tied too closely to some in-group we no longer become an individual but a clone of someone else's ideology.
Civic discourse in the divisive age
Debate and civic discourse is inherently messy. Add into the mix an ignorance of history, rabid politicization and debased political discourse, you can see that it will be very difficult in mending this discursive staple of a functional civilization.
There is still hope that this great divide can be mended, because it has to be. The Hidden Tribes authors at one point state:
"In the era of social media and partisan news outlets, America's differences have become
dangerously tribal, fueled by a culture of outrage and taking offense. For the combatants,
the other side can no longer be tolerated, and no price is too high to defeat them.
These tensions are poisoning personal relationships, consuming our politics and
putting our democracy in peril.
Once a country has become tribalized, debates about contested issues from
immigration and trade to economic management, climate change and national security,
become shaped by larger tribal identities. Policy debate gives way to tribal conflicts.
Polarization and tribalism are self-reinforcing and will likely continue to accelerate.
The work of rebuilding our fragmented society needs to start now. It extends from
re-connecting people across the lines of division in local communities all the way to
building a renewed sense of national identity: a bigger story of us."
We need to start teaching people how to approach subjects from less of an emotional or baseless educational bias or identity, especially in the event that the subject matter could be construed to be controversial or uncomfortable.
This will be the beginning of a new era of understanding, inclusion and the defeat of regressive philosophies that threaten the core of our nation and civilization.
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