I am interested only in maintaining the negative thesis that whatever these crimes involve, it has to be something more than merely the communication of persuasive reasons for action (or perhaps some special circumstances, such as diminished capacity of the person persuaded). Amdur attacks this negative thesis on two counts: first, he argues (p. 295) that it flies in the face of our intuitions about moral responsibility legal responsibility being understood as an extension thereof and second, he attempts to show (p.298) that Scanlons ideas are inconsistent. Here are two sentences from Amdurs quotations of Scanlon which I believe to be critical: First: The contribution to the genesis of his action made by the act of expression is, so to speak, superseded by the agents own judgment. Second: An autonomous person must apply to these tasks his own canons of rationality, and must recognize the need to defend his beliefs and decisions in accordance with these canons. Lets first examine how far Amdurs intuition (p.295) about Smiths responsibility would extend. Would it extend to the case where Smith had written a pamphlet advocating bank-robbing and Jones read it? What if he had written not a pamphlet but an academic book? What if he had written in another century, another culture and Jones simply happened to come across his work in a library and found his ideology sensible enough to adopt? What if he had written an epic poem with a bank robber as the hero and Jones decided he wanted to be that hero? What if he hadnt directly mentioned bank-robbing at all, but simply expressed an ideology that to Jones seemed to justify/necessitate bank-robbing? What if hed explicitly mentioned he was personally against bank-robbing but Jones thought he was simply refusing to commit to his own (very convincing) ideas for fear of retribution? Its clear that if we go on in this way, this intuition is reduced to the idea or rather, the fact, because I doubt anyone could deny this that the external world can influence our thoughts in ways we cannot always control precisely, and that a major part of this influence is exerted by words. In the language of physics, we would say that human minds were coupled systems, influencing and being influenced by each other through acts of expression. But then where does that leave Scanlonian autonomy? Shall we say that because our minds are not isolated systems, because words from outside our skulls can give rise to thoughts within them, we cannot really ever have autonomy of thought by extension, of anything at all? And where does this compounding of responsibility for words or actions down a causal chain of agents end? Must Gutenberg take responsibility for everything anyone ever communicated through the medium of print? If Whitman knows that his poems [will not] do good only, they will do just as much evil, perhaps more, is it incumbent upon him not to publish them? Is there any space at all for disclaimers in this world? I dont think even Amdur would go so far as to say that. His problem seems to be that if autonomy does exist, then Scanlon is completely discounting the autonomy involved in the act of convincing and where there is autonomy there must be responsibility. Scanlon would counter that by saying that Amdur is discounting the autonomy involved in the act of being convinced an autonomous agent takes responsibility for being convinced hence they must be prepared to defend their beliefs. If someone else can convince them to abandon a belief, it means they were not prepared to defend that belief against that particular argument, and insofar as they were unprepared, they were by definition not autonomous either. But this seems to be an impasse. By this sort of argument, we can arbitrarily declare any aspect of human existence the province of autonomy and start holding anyone responsible for anything, and then say they are not autonomous if they cannot fulfill that responsibility. Can there be any dialogue on this? Lets look at Amdurs second beef with Scanlon. He wants to know why the superseding argument would not apply to the nerve gas example if people have such perfect autonomy of belief as Scanlon says, how is giving them a justification for doing something any different from giving them the tools to do it? Arent we just enabling them to do it in both cases? This is where I think Scanlons defense argument would come into the picture. In the nerve gas case, the autonomous agents who already want to do it do not have the responsibility of resisting the temptation to kill people. They want to kill people, period. If the inventor does not bear this in mind, nobody will. The inventor must know or naturally assume this what other purpose could be served by communicating the formula? Hence it is common knowledge that the layer of autonomy that might separate the speaker from the act does not exist in this case. Scanlon is not arguing that the agent is somehow non-autonomous in the nerve gas case, hes saying that because the agents mind is firmly made up on the moral question quite independently of the act of expression, and because the act of expression does not seek to engage with the agents beliefs or decisions at all, there is no longer any question of judgment on their part. In other words, we can now replace the agent with a MoralBot that operates under the rule: if possible, use nerve gas to kill people, if not, do nothing. The autonomy of the inventor lies in deciding which of these if-conditions should hold something that the agent cannot possibly be autonomous about, and that therefore cannot be superseded by the agents judgment. The contribution to the agents state of mind made by the knowledge that killing people is now easy is morally trivial that is, it involves absolutely no revaluation of beliefs and no new decisions. There is no challenge to the agents autonomy, and thus no need for the agent to defend their beliefs. The agent and the inventor are autonomous in completely different spheres (each of them acts like an input to an AND gate) and the combined effect of both exercises of autonomy determines whether the act is performed. If the agent has already thrown the switch of moral decision, the question is reduced to a single decision on the part of the inventor. One could similarly argue that Jones will rob a bank if (Smith makes a good argument) AND (Jones accepts it). But that is a misrepresentation; there is only one input or enabler here: Joness belief. And only one agent can throw a switch to alter that. All other inputs are essentially contestations of that input attempts to alter it in some way. A rational argument is a situation in which ones autonomy of belief is directly threatened. If we are to take Scanlons definition at face value, being prepared to defend [] is essential to the maintenance of autonomy. Hence Scanlonian autonomy can only be empirically verified when it is threatened the test of whether what is threatened is contained in [], the province of autonomy, is whether the threat provokes a strong enough defense. Nor does this defense necessarily have to be put up in the form of a counter-argument or a physical or legal struggle; it could simply be a stubborn refusal to believe or decide to do what one is being convinced to believe or do. In other words, just because one loses a rational argument, it does not mean one will believe whatever absurd conclusion one was forced to concede. If that were true, one could be replaced by a MoralBot (albeit a rather more sophisticated one) programmed with the rules of rational argument. The reason it is important for Scanlon that the agent should defend themselves in accordance with [the canons of rationality] is not that these canons of rationality are the sole arbiters of what the agent believes and decides, it is that anything that goes against them is censored by the agents brain. In other words, Scanlonian rationality is not a positive rationality where the agent will believe everything that is in accordance with it, it is a negative rationality that will destroy the agents beliefs if they are shown to contradict it. It is to avoid this internal destruction that the agent must be prepared to defend the beliefs (or to alter ones canons of rationality to make those beliefs defensible in accordance with them; that is what Scanlon means by his own canons of rationality) that is, purely out of a practical consideration. There is no cognitive law against holding unprovable beliefs only against holding contradictory beliefs nor can another person have any say in which unprovable beliefs an autonomous agent will hold (having a say here means being able to make an autonomous contribution to as the citizens of a democracy have a say in who gets elected; there is no further authority that can supersede an electoral majority in the positive sense, though in the negative sense the ineligibility of the candidate may do so). It is precisely because there is no way to prove an empirical truth purely through rational argument (or a moral/political truth through legislation it is in this sense that this argument is applicable to political philosophy) that Scanlonian autonomy can exist. There is no way, for instance, to argue against the belief that robbing banks is wrong in itself if Jones can come up with no better argument, he has this to hide behind. As Ive stated above, though, what matters is not whether Jones can win the argument but whether he can defend this belief to himself after hearing Smiths arguments defend them, that is, from the rational part of his brain that says, Smith is right, you should rob a bank because not robbing banks goes against something you believe in and must defend through your actions. This, then, would be Scanlons answer to Amdurs first point: while the idea of autonomy does not rest on a bucket theory, it does rest on a theory of exclusivity: if I am autonomous about something, you cannot be autonomous about the same thing. In this case, the thing is Joness belief. Without Joness refusal to defend his beliefs, or surrender, Smith cannot through rational argument get him to believe or decide anything (although he may do it by other methods, such as employing his charisma, great voice modulation, superior grammar, apparent personal commitment to the issue etc. and it is for these that he might be praised or blamed, as well as for the decision to challenge/threaten Joness autonomy on this point rather than some other). Smith cannot possibly know what effect his arguments will have on Jones, and intuitively it seems unlikely that he could get Jones to do anything simply by arguing his case well. It is in regard to those things that he cannot get Jones to believe/do no matter how well he argues that Joness autonomy is most evident. Scanlons implicit argument is that it is natural for us to make decisions like whether to rob a bank autonomously since crimes are directly connected with our place in society, and thus for us there is something personal at stake that must be defended. This is why our beliefs and decisions naturally align themselves to defend such aspects of our lives and thus the task of defending these aspects is reduced to defending our beliefs and decisions from verbal assaults. And if we refuse to defend these beliefs, it is this willing refusal that supersedes all external moral directives including the speakers directive to believe something that contradicts the abandoned belief. Smiths autonomy, therefore, is not in the act of convincing even if Jones ends up convinced, but in the act of attempting to convince (a sentiment the Bhagavad Gita might approve of that we cannot <verb>, we can only attempt to <verb>). This act may make it likelier that Jones will be convinced; it may force Jones to rethink his morality but it by no means takes the final call on the question; that is something only Joness autonomous mind can do, and can do despite anything Smith may say. A2. In this answer, Ill consider only the schedule attached to the ordinance which lists the actual restrictions and not the rest of the ordinance which discusses the ways in which they may be enforced. Provisions will refer to the items of this schedule. 1. Since most of the provisions of the ordinance only explicitly ban activities that violate either the Fundamental Rights or the dignity of a person, there are few that could count as a violation of freedom of speech but those that do in my view are as follows, in the order in which they strike me as violations: (2) This seems to be the clearest violation, for obvious reasons. If someone genuinely believes they are performing miracles, and if people around them believe it too, why should they be prevented from displaying and propagating them, and conducting business transactions around them, provided nobody else is being harmed by their doing so? 11 (a) Is the state now taking it upon itself to regulate the erotic choices of its citizens? (5) Theres a fine line between this and other provisions like (8). I dont think the consequences of this one are so terrible as to warrant suppression altogether. Theres a difference between preventing someone from getting medical treatment and inspiring some kind of generalized fear in them; the former should probably be prohibited because it has unacceptable consequences, but I cant see any good reason for separating the latter from other activities that inspire fear of a particular person or group. Still, Ill discuss all the provisions in the next part of this answer. 2. First Ill list the main arguments for freedom of speech that I know of from HUL 253: 1. Mills argument from truth a. Autonomy-based justifications for protecting rational persuasion (limitation on state authority) b. Consequentialist justifications resting on finding better alternatives to suppression more speech, marketplace of ideas 2. Free speech is good in itself (self-fulfilment) 3. Democracy requires that everyones voice be heard, no matter what it says 4. State intervention is likely to be biased and suppress more than necessary for political ends It seems to me that (3) and (4) are not really applicable in this case, since there is no obvious connection between black magic and Indian politics. As an act of expression, black magic is more or less limited to communicating statements concerning specific people (the magician, his clients or his victims, or supernatural beings) without any wider justification and therefore by its nature cannot have any direct political implications. However, (1) and (2) are both, I think, applicable here. Its a bit of a stretch to argue that (2) applies since the only direct consequences of the acts of expression involved in black magic seem to involve the production of negative states of mind (in the victims), but if we look a little closer, its obvious that the production of positive states of mind (in the clients) is inseparable from this (and in this regard 11(a) sounds very much like a victimless crime, though it may not always be). In other words, it appears that black magic creates a kind of emotional economy, integrating emotions like terror, envy, desire etc. and things like life, liberty and personal dignity with the actual financial economy. Insofar as the people who are part of this economy choose to be part of it and to engage in the transactions it makes possible, they cannot only be thought of as victims. That is, the same person may at different times be both a client and a victim, being harmed by this economy but also benefiting from it. If participation in the emotional economy of black magic is considered as a whole not simply as a collection of harms it must be granted that it is an aspect of self-fulfilment just as much as the financial economy is. This argument does also justify things like hate speech as an aspect of self-fulfilment though only to the extent that this self-fulfilment does not have unacceptable consequences. Further, if these things are to be understood as social/emotional economies they must be regulated in the same way as the financial economy for instance, a breach of contract should be understood as a violation of the terms and conditions under which people participate in the economy, even if such a contract is never made explicit. This is why it does not apply to (9), (10) and 11(b) these are obvious examples of cases where a contractual obligation is not honored, independently of any metaphysical or emotional understanding of the forces involved. But the argument from truth is, I believe, the main argument against the provisions mentioned. It is not so much that irreparable harm would be done to the pursuit of truth if belief in the supernatural were discarded as that we must be very careful about why we discard it, so as not to discard certain epistemological methods along with it that may be useful in other ways. While it may be obvious to the state that black magic is mere superstition, this is contingent on a rationalistic metaphysics. The consequentialist argument would imply that the state cannot legitimately reserve the right to enforce a metaphysical view on its citizens since if this were granted, it would also grant the state the right to ban/outlaw all religious practices, a good portion of secular literature and most of the internet leaving rationality to be held as a dead dogma. (It has been extensively argued over the past two centuries that the consequences of this can be infinitely worse than the consequences of any other kind of dead dogma.) The autonomy-based argument the stronger one here would imply that since metaphysical doctrines cannot be conclusively verified, what people decide to believe or are persuaded to believe must be left up to them. (This is why the autonomy-based argument is understood, in my analysis, as part of the argument from truth, and not instead as part of the argument from self-fulfilment.) 3. To return to the three provisions that appear to violate freedom of speech, the wording of the act implies that practitioners of black magic are necessarily conmen who do not themselves believe in the practices they engage in, and are doing so only with a view to financial or social gain. But this may not always be the case. There are many forms of metaphysics which, while they cannot be endorsed by the state, are nevertheless quite practical for societal purposes. One example of such an alternate metaphysics that is current in India is the theory of karma that the world is a self-regulating system where every agent eventually gets their just deserts. But it would be preposterous if the judiciary were to be dissolved on the grounds that artificial punishment constituted an interference with this natural balance. The state cannot endorse the metaphysics of karma because it undermines its justification. But this does not mean it can make it a law that nobody can believe in the theory of karma. Similarly, it may be that these practitioners actually believe they are communicating with supernatural powers on behalf of their clients. What might be the reason for the persistence of such a belief, in the practitioners mind or in society? Presumably that it has never been conclusively disproved to their satisfaction. In that case, even if the state has tried all the awareness campaigns, education and dissemination of information possible, if it has made public the results of studies on the origins of belief in black magic, if, in short, it has given its citizens access to a free market of ideas, and they still persist in believing in black magic, the state has absolutely no right to tell them that they cannot believe in it. If without taking such measures the state enforces its rationalistic beliefs, that is even less acceptable, because it denies legitimacy to the experience of the individual and to social mechanisms of belief construction. The ultimate test of truth, after all in the Millian spirit is not whether it satisfies established truth conditions but whether human beings (ideally, immortal human beings on an eternal mission to investigate the truth of a particular belief) judge it to be truth. It may very well be that by their canons of rationality, all these believers are perfectly persuaded that black magic is a real thing and then it would be a violation of their liberty for the state to insist that it is not without persuading them otherwise. It may also be and this is a kind of consequentialism that there is at least some objective truth, social or psychological truth, encoded in the complex system of beliefs surrounding these practices, even if it is not what people think it is. But other than this part autonomy-based, part consequentialist argument against suppression, there are two further arguments in favour of it one consequentialist and one autonomy-based. The consequentialist argument is as follows: perhaps people are not being rationally persuaded. Perhaps belief creates fear, and fear belief, so that the cycle of superstition is self-sustaining. In this case, there does not seem to be any way other than suppression to break this cycle, nor is there any good argument against breaking the cycle, for a self-sustaining cycle is not a product of human agency, and breaking it cannot thus be a violation of anyones autonomy, which takes us directly into the realm of consequentialism. The ordinance should then be understood as a form of psychiatric intervention on a large scale. This, however, would require people who held these beliefs to seek help that is, to individually recognize that they did not wish to continue holding those beliefs but were unable to break free of them due to the influence of society on parts of their brains over which they had no control. The intervention would then be a way of securing positive autonomy for them. If there is reason to believe that a large-scale intervention would be welcomed by all of the believers (except the practitioners, who have a vested interest) that is, it would receive unanimous consent if asked, then such suppression would be in the public interest. There is, however, a qualification: if suppression alone would not be sufficient to rid society of the belief, then there cannot be any justification for it. If there is reason to believe that it would simply leave people without a redressal mechanism for their supernatural problems (e.g. hearing voices psychiatrists can be expensive) which would persist independently of whether there were any practitioners of black magic around, this consequentialist argument for suppression breaks down. The other possibility is that people hold these beliefs not because their experience supports them but because they do not have the resources to conduct investigations to disprove them. They may hold them as a form of Pascals wager if black magic isnt real, then all they lose is money/dignity/a bit of liberty, all things they know they are giving up, can autonomously choose to give up, in return for which they may gain unlimited power but if it is, the consequences of not believing in it are unknown and could be unspeakably worse. In this case, they would believe in it because others believed in it because there would be no way to decide whether someone was a real magician other than that there were many people who believed in them. Belief in this case would be non-autonomous. (Pascals wager, in fact, is the quintessential example of how metaphysical belief can be firmly linked to society and the individual made non-autonomous with respect to it.) However, there cannot be a law against living by Pascals wager either. What there can be a law against is arbitrarily altering the options available to those who do live by Pascals wager since this is a form of direct social control and could have unacceptable consequences. If it can be proven that the construction of the wager in question is so widespread that it can be understood objectively as a social fact, and that this construction is being manipulated in such a way that it is violating peoples autonomy arbitrarily (it can do this because of the infinities in the payoff matrix of the wager), then suppression can be justified. If, on the other hand, people can implement some kind of system of verification that does not only depend on the beliefs of others (and that is therefore not, in the final analysis, self-referential, for in this case the beliefs of others depend on ones beliefs) or of checks and balances that can limit the authority of the magician over them, then I cannot see that the state has a right to interfere further. It is worth noting that consequentialist arguments can only be invoked after autonomy arguments have been exhausted. In moral philosophy, the right to choose ones metaphysics comes before the right to be free of fear or the right to personal liberty or even the right to life. One cannot, for instance, morally justify preventing Jain monks from starving to death on the grounds that suicide is a crime. The reason is that consequentialism depends on an objective evaluation of the consequences, which can never happen so long as the consequences in question involve a violation of one persons autonomy but not anothers it would simply provoke a defensive response from the violated party, causing a breakdown of negotiation. Thus there can be no more suppression of speech than is necessitated by the violation of someone elses autonomy since any more would be an indefensible violation of the speakers as well as the listeners autonomy. [I also think this may be where Rawls is coming from when he refuses to have his agents reason probabilistically, and instead goes, apparently arbitrarily, for the worst-case scenario avoidance argument. The possibility of having ones autonomy violated when the veil is lifted introduces infinities into the amount of happiness or sadness one may have in that world, and the worst-case avoidance is a way of removing the need for that calculus of infinities so far as possible.] This discussion dispenses with (2) and (5), and also further with all those provisions of the ordinance that define crimes against life, liberty and personal dignity that are justified on the pretext of performing black magic as a separate class of crimes for which the punishment may be more severe than if those things were done on some other pretext namely, (1), (3), (4), (6), (7) and (12). These crimes have to be defined separately because they are instances of using Pascals wager as a means of control. 11(a) is an interesting provision. I dont quite understand why it is in the ordinance at all. It may be that (for instance) the requirement of being faithful to ones spouse for seven consecutive births causes the devotee to believe that it is their duty to engage in sexual relations with the practitioner or perhaps the devotee may be told that they had made some other promise in a past life, and they must now make good on it. But apart from this, I cannot think of any other scenario that may necessitate such a provision. Even if the practitioner says this and the devotee believes them, I do not know of any rule stating that one must have sexual relations with a person who was ones spouse/lover in a past life. Furthermore, a strong reason why this might be an unjustifiable provision is that it is not at all uncommon for lovers to be absolutely convinced in the face of all rational evidence that they share some profound mystical connection, which is often explained metaphysically in terms of a connection from a past life. It would be quite unfair, I think, to prevent them from expressing this view if they genuinely believe in it. But it could be that this will only be the case in a tiny minority of situations, and for the most part the assertion of such connections will be used by the practitioner to sexually exploit devotees. Although it seems to me that in this case the sexual autonomy of the devotee should supersede anything the practitioner might say, I think if the promise of a past life is invoked, it does to some extent have the effect of changing the situation, since then the devotees refusal to believe the practitioner may be seen as a justification for moral outrage on the practitioners part. (The difference between this and normal lovers outrage is that everyone knows normal lovers are insane, so their moral emotions do not receive social sanction.) This is an example of how the invocation of alternate metaphysics can have a direct bearing on social relations, thus serving as a form of social control that, while perhaps not as extreme as the Pascals wager form of control, can nevertheless shift the balance of moral-social emotions. Since the construction of sexual autonomy especially female autonomy is not very strong in Indian society, and sexual relations can often be forms of social contestation more than personal explorations of eroticism, this kind of control can also justify state intervention on consequentialist grounds (regulation of the economy) even if nobodys autonomy is being violated. To sum up, there are three main questions which would need to be answered before deciding whether suppression is justified (brackets specify the expertise required to answer them): 1. Do there exist any social facts, or objective social constructions, that can be/are converted into forms of Pascals wager by the practitioners of black magic? (sociological) 2. Does the practice cause those who have no truck with it to feel psychologically threatened, and is this effect intended? (Is it impossible to opt out?) Does the practice depend on this effect? That is, does it feed off autonomy violations for instance, is its legitimacy increased by the indignities listed in (1)? (sociological and anthropological) 3. Do those who believe in it (non-practitioners) rationalize it to the extent that it would be impossible to convince them through more speech that it is an irrational practice? Furthermore, do they see this belief as a personal choice? (psychological) If the answers to 1 and 2 are Yes, and to 3 No, Id say the ordinance is justifiable. If any of the answers are different, then I cannot be certain.