THE HUMBLE POSTULATE: LAW, PUBLIC

CONSCIENCE AND THE PROBLEM OF

LEGITIMACY

DISSERTATION SUBMITTED IN PARTIAL FULFILMENT OF THE

REQUIREMENTS FOR THE POSTGRADUATE DEGREE OF
MASTER OF LAWS (LL.M) - COMMERCIAL LAW
AT MAHATMA GANDHI UNIVERSITY, KOTTAYAM

GOVERNMENT LAW COLLEGE, ERNAKULAM

REGISTER NO: 233243210182
2023-2025
THE HUMBLE POSTULATE: LAW, PUBLIC CONSCIENCE AND THE
PROBLEM OF LEGITIMACY

DISSERTATION WORK

In Partial Fulfilment of the Requirements for the Award Of

LL.M (Commercial Law)

MAHATMA GANDHI UNIVERSITY

GOVERNMENT LAW COLLEGE, ERNAKULAM

KOCHI – 682 011, KERALA

LL.M: 2023 – 2025

SUBMITTED BY

REGISTER NO: 233243210182

i
 DECLARATION

I hereby declare that the dissertation titled "THE HUMBLE POSTULATE: LAW, PUBLIC
CONSCIENCE AND THE PROBLEM OF LEGITIMACY", submitted by me in partial
fulfilment of the requirements for the Postgraduate Degree in Law (LL.M – Commercial
Law), at Government Law College, Ernakulam, Kochi, Kerala, affiliated to Mahatma Gandhi
University, has been carried out under the guidance and supervision of Dr. LEKSHMI G.R,
Assistant Professor, Government Law College, Ernakulam, and I further declare that this
dissertation has not been previously submitted to any other university or institution for the
award of any degree, diploma, fellowship, or any other similar recognition.

Date: SIGNATURE
Place: Register No: 233243210182

ii
 CERTIFICATE OF DISSERTATION GUIDE

This is to certify that the dissertation titled " THE HUMBLE POSTULATE: LAW, PUBLIC
CONSCIENCE AND THE PROBLEM OF LEGITIMACY " has been prepared by the
candidate with Register No: 233243210182 in partial fulfillment of the requirements for the
postgraduate degree in Law (LL.M – Commercial Law) at Government Law College,
Ernakulam, affiliated to Mahatma Gandhi University. This dissertation is a record of genuine
and bona fide work carried out under my guidance, and no part of this work has previously
been submitted or published for any degree.

Date: Dr. LEKSHMI G.R

Place: Ernakulam ASSOCIATE PROFESSOR

iii
 CERTIFICATE OF THE HEAD OF THE INSTITUTION

This is to certify that the dissertation titled "THE HUMBLE POSTULATE: LAW, PUBLIC
CONSCIENCE AND THE PROBLEM OF LEGITIMACY " has been prepared by the
candidate with Register No: 233243210182 in partial fulfillment of the requirements for the
postgraduate degree in Law (LL.M – Commercial Law) at Government Law College,
Ernakulam, affiliated to Mahatma Gandhi University. This dissertation is a record of genuine
and bona fide work carried out by the candidate.

Date: DR. MINI PAUL

Place: Ernakulam PRINCIPAL

iv
 ACKNOWLEDGEMENT

I express my deep sense of gratitude to Dr. LEKSHMI G.R, Assistant Professor in Law,
Maharaja’s Government Law College, Ernakulam, for her invaluable guidance, constant
support, and encouragement throughout the course of my research.

I also wish to extend my profound gratitude to Dr. Mini Paul, Principal of Maharaja’s
Government Law College, Ernakulam, for her continuous motivation, which greatly
contributed to the completion of this dissertation.

My sincere thanks go to all my esteemed teachers for their ongoing support and for imparting
valuable knowledge, which greatly aided me in completing this project.

I would like to take this opportunity to thank the library staff of His Highness Maharaja’s
Government Law College, Ernakulam, for their assistance in providing the necessary
resources for my research.

I am deeply indebted to the various jurists, writers, and scholars, whose writings and works
have been an invaluable source of reference and inspiration for the completion of this
dissertation.

I also wish to express my gratitude to all those known and unknown individuals who, in one
way or another, helped me during my research.

Last but not least, I extend my heartfelt respect and appreciation to my family and friends for
their immense help, cooperation, and unwavering support during this journey.

Register No: 233243210182

Ernakulam

v
 ABBREVIATIONS

Abbreviation Full Form

DCT Divine Command Theory

EctHR European Court of Human Rights

ERP Essential Religious Practice

IPC Indian Penal Code

PRWORA Personal Responsibility and Work

Opportunity Reconciliation Act

TDT Truth-Default Theory

v. Versus (used in case citations)

vi
 TABLE OF CONTENTS

Chapter / Page
Section Title No.

Chapter 1 Introduction 1

1.1 Background of the Study 1

1.2 Research Problem 2

1.3 Statement of the Problem 3

1.4 Objectives of the Study 3

1.5 Research Questions 4

1.6 Hypothesis 4

1.7 Significance of the Study 5

1.8 Scope of the Study 5

1.9 Limitations of the Study 5

1.1 Research Methodology 6

vii
 1.11 Review of Literature 6

1.12 Chapterisation 7

Chapter 2 The Epistemic Question of Authority 9

2.1 Introduction: The Problem of Justification 9

The Münchhausen Trilemma and the Inevitability of

2.2 Destigmatizing of the Axiomatic Stop 10

2.3 The Legal Postulate as "Fictional Exegesis" 12

2.4 The Postulate as a "Mystical Foundation" 14

2.5 Comparative Postulates: The Theological Axiomatic Stop 14

2.5.1 The "Voluntarist" Postulate: The "Axiomatic Stop" as Pure Will 15

The Rationalist Postulate: The "Axiomatic Stop" as Divine

2.5.2 Intellect 17

2.5.3 A Case of Hinduism: Diversity of Postulates 19

2.6 The Secular Postulates: From General Epistemology to Law 20

The Naturalist Postulate: Hiding the Axiom in Materialism,

2.6.1 Science and Empiricism 23

viii
 2.6.2 The Skeptical, the Nihilist, and the Pragmatic Resolution 26

2.7 The Aesthetics of Authority: Obscurantism and the "Guru Effect" 27

2.7.1 The "Guru Effect" and the Burden of Interpretation 28

Conclusion: The Unavoidable Axiom and the Secular

2.8 Concealment 29

Chapter 3 The Public Conscience 32

3.1 Introduction: An Epistemology of the Governed 32

The Anthropological Foundation: Culture, Custom, and the Lex

3.2 Non Scripta 33

3.2.1 The Legal Pluralism 34

3.3 The Sociological Foundation: Law as Power and Practice 37

3.3.1 The Fallacy of the "Law in Books" (Pound) 37

Marxian Critique Against the Notion of "Neutrality" (Marx &

3.3.2 Conflict Theory) 38

3.3.3 The Fallacy of "Reason" as Justice (Weber) 38

3.3.4 The Fallacy of Law as "Object" (Foucault) 39

ix
3.4 The Political Foundation: Law as Sovereign Mask 40

3.4.1 The Fallacy of the "Rule of Law" vs. "Sovereignty" (Schmitt) 40

3.4.2 The Fallacy of "Legitimacy" vs. "Hegemony" (Gramsci) 41

3.4.3 The Fallacy of the "Apolitical" (Schmitt & Agamben) 41

The Political Economy of Compliance: Opportunistic Alignment

3.4.4 and the Conditioned Populace 42

3.5 The Cognitive Foundation: Intuition Over Reason 45

The Epistemic Vulnerability: Heuristics, Credulity, and the Truth-

3.5.1 Default 46

The Social-Psychological Engine: Frustrated Needs and

3.6 Scapegoating 50

The Cognitive Levers of Group Identity: Bias and Motivated

3.6.1 Reasoning 51

3.6.2 Contagion and Emergent Norms 54

3.6.3 The Posture of Passivity: The Bystander Conscience 55

3.6.4 Cognitive Justifications for Passivity: 'Just-World' Fallibility 56

The Technocratic Bridge: Propaganda and the Engineering of

3.7 Consent 57

x
 The Invisible Government: Bernays and the 'Conscious
3.7.1 Manipulation' 57

3.7.2 Jacques Ellul and 'Sociological Propaganda' 58

3.7.3 Jason Stanley and the 'Flawed Ideology' 59

3.7.4 Computational Propaganda: The Algorithmic Reinforcement 60

The Trojan Horse Mechanism: Ideological Bundling and the Halo

3.7.5 Effect 60

The Sociological Foundation: Legal Consciousness and Its

3.8 Failures 62

3.8.1 The Internal Contradiction: A Fractured Conscience 63

The Architecture of Systemic Pathogenesis: From Prejudicial

3.8.2 Policy to Manufactured Consent 65

3.9 The Political Foundation: The Conscience as the Subaltern Voice 69

The Architecture of Discursive Boundaries: Hegemony, the

3.9.1 'Overton Window,' and the Internalized 'Line' 70

3.9.2 The Hart-Devlin Debate: A Conflict of Epistemologies 73

3.1 Conclusion: A Fractured Antagonist and an Epistemic Tragedy 73

Chapter 4 The Postulates of Liberalism, Secularism, and Paternalism 76

xi
 4.1 The Liberal Postulate and Its Dissonance 76

The Clash of Teleologies: The Tabula Rasa vs. The Soteriological

4.2 Self 77

4.3 The Paternalist’s Justification: The "Non-Voluntary" Conscience 79

4.3.1 The Paternalist's Imperialist Origins: Mill's 'Nonage' 80

4.4 The Phantom of Laïcité: Secularism as Erasure 81

4.4.1 The Violence of the Universal: Westernism as the "Zero Point" 83

An Epistemic Case Study: The "Essential Religious Practice" and

4.5 the Conflict of Ontologies 84

4.6 Deconstructing the Postulate's Axioms: Agency and Power 87

4.7 Conclusion 88

Chapter 5 The Postmodern Turn 88

5.1 Introduction: The Academy's Insurgency 89

5.2 Lyotard and the "Incredulity Toward Metanarratives" 89

5.3 Deconstruction as the Subaltern's Method 90

xii
 Feminism and Queer Theory: Deconstructing the "Neutral"
5.4 Subject 91

5.5 The New Dissonance: When Critique Becomes a Postulate 92

5.6 Conclusion: The Multiplying of Postulates 93

Chapter 6 A Way Forward? Epistemic Humility and Legal Pluralism 95

6.1 Introduction: The Impasse of Legitimacy 95

6.2 The Virtue of Epistemic Humility: Destigmatizing the Axiom 96

6.3 Robert Cover and the "Jurispathic" State 96

6.4 Boaventura de Sousa Santos: The Ecology of Knowledges 97

6.4.1 The Solution: Diatopical Hermeneutics 98

6.5 Gunther Teubner: Autopoietic Pluralism and "Loose Coupling" 98

6.5.1 The Way Forward: "Structural Coupling" 99

The Fallacy of Forced Consensus: Against Perennialism and the

6.6 "Sameness" Myth 99

6.6.1 The Reality of Ontological Contradiction 99

xiii
 6.6.2 The Fallacy of "Forced Perennialism" 100

6.6.3 The Dignity of Disagreement: Tolerance as Endurance 100

6.7 Models of Engagement: From Verdict to Conversation 101

6.7.1 The Margin of Appreciation 101

6.7.2 Dialogic Judicial Review 102

6.7.3 Constitutional Demosprudence and Cognitive Justice 102

6.8 The Limits of Pluralism: The Paradox of Tolerance 103

6.9 Conclusion: The Architecture of Reconciliation 104

Chapter 7 Conclusions and Recommendations 106

7.1 Recapitulation of the Study 106

7.2 Key Findings 106

7.2.1 The Fiction of the Rational Postulate 107

7.2.2 The Cognitive Asymmetry of the Conscience 107

xiv
 7.2.3 The Failure of Paternalism and the Postmodern Trap 107

7.2.4 The Necessity of Epistemic Humility 107

7.3 Hypothesis Validation 108

7.4 Recommendations: Toward a Jurisgenerative Order 108

7.4.1 Adjudication: Diatopical Hermeneutics 108

7.4.2 Legislation: Reflexive Law and Loose Coupling 109

7.4.3 Constitutionalism: The Margin of Appreciation 109

7.4.4 Civic Ethics: Tolerance as Endurance 109

Concluding Observation: Rethinking the 'Ghost in the Machine'

7.5 Metaphor 109

Bibliography xvi

I. Secondary Sources xvi

II. Table of Authorities (Cases & Statutes) xxx

xv
CHAPTER 1: INTRODUCTION

1.1 BACKGROUND OF THE STUDY

The modern nation-state is based on a fundamental truth claim of legitimacy, in contrast to

pre-modern or despotic systems, its authority is an adequate representation of reason and
human justice. It establishes itself as a byproduct of the pinnacle of humanity.1 This
assumption, illustrated by Max Weber as "rational-legal authority," puts forward a legal order
which is hereinafter defined as the "Legal Postulate."2It claims to be neutral, universal, and
logically deduced.3 However, one could argue that there was rarely an attempt to deduce
whether this rationality is grounded in first principles or is merely performative.4

The jurisprudence tradition suggests that there has been a gap between the formalized logic of
the law and the lived and intuitive moral experience of the populace, herein defined as the
"Public Conscience.”5While the Legal Postulate mostly works through syllogistic reasoning,
codification, and a reliance on secular rationality ("reasoning-why"), the Public Conscience
functions through larger intuition, cultural memory, and the moral sentiment ("seeing-that")
of the populace.6 The two may not have to be blatantly separate, as the creators of the
Postulate and its governed stem from the same Public Conscience, and hence an intersection
persists.7 But for the convenience of the dissertation, both would be mostly portrayed as
distinct realms.

In an increasingly pluralistic and morally heterogeneous society, the assumption that a single,
monolithic legal rationality can govern diverse normative worlds without friction or breaking
social and cultural legitimacy and the feeling of belongingness has been widely critiqued,
especially in post-colonial academia.8 The 'dissonance' and the consonance between the
State’s truth and the People’s truth is the premise for the foundational questions raised in this
study. The background of this study lies in the specific problem of the inability of modern,
1
Max Weber, Economy and Society 215 (Guenther Roth & Claus Wittich eds., 1978).
2
Id. at 217.
3
See generally H.L.A. Hart, The Concept of Law 200 (2d ed. 1994).
4
See Judith Butler, Excitable Speech: A Politics of the Performative 5 (1997).
5
See Emile Durkheim, The Division of Labor in Society 79 (W.D. Halls trans., Free Press 1984) (1893).
6
See Jonathan Haidt, The Righteous Mind: Why Good People Are Divided by Politics and Religion 55 (2012)
(distinguishing between intuitive "seeing-that" and rational "reasoning-why").
7
See Eugen Ehrlich, Fundamental Principles of the Sociology of Law 493 (Walter L. Moll trans., 1936)
(arguing that the center of gravity of legal development lies in society itself).
8
See Boaventura de Sousa Santos, Epistemologies of the South: Justice Against Epistemicide 136 (2014).
secular-liberal-paternalistic systems to effectively communicate with, or claim legitimacy
over, the subaltern or alternative epistemologies of the communities it intends to govern.9 The
study also questions whether such a system will be able to achieve an optimal balance at all,
and whether it shall introspect on its own limitations.

1.2 RESEARCH PROBLEM

The core problem this dissertation addresses is the "Epistemic Dissonance" between the
Legal Postulate and the Public Conscience.

The modern legal system attempts to resolve the epistemic crisis of authority by avoiding or
concealing the larger questions about its own first principles.10 To appear objective, the
Postulate has to deny its reliance on unproven assumptions (axioms) and instead raise itself as
a product of pure Science or Reason.11 However, when this "rational" postulate has
interactions with the public conscience or subaltern elements of it which relies on faith,
tradition, or communitarian ethics, it engages in a form of "Epistemic Violence."12 It
dismisses the conscience as "irrational," "superstitious," or "non-voluntary," largely because
the conscience speaks a different epistemological language altogether.13

This refusal to acknowledge the existence of a parallel Public Conscience and the Law's
simultaneous refusal to admit its own dogmatic foundation creates a "regime of power" that
alienates the subjects.14 The problem put forward here is not simply that the law is unjust in
outcome; justice must be seen from the perspective of the subaltern subjects, considering how
they perceive it. The Public Conscience, unable to be heard through the "rational"
methodologies of the Postulate, can act as a "destructive mob" or retreat into a "passive
bystander" role, which in essence may break the mechanisms intended to preserve societal
equilibrium.15

1.3 STATEMENT OF THE PROBLEM

9
See Gayatri Chakravorty Spivak, Can the Subaltern Speak?, in Marxism and the Interpretation of Culture 271,
280 (Cary Nelson & Lawrence Grossberg eds., 1988).
10
See Hans Kelsen, Pure Theory of Law 193 (Max Knight trans., Univ. of Cal. Press 1967) (1960).
11
See Michel Foucault, Power/Knowledge: Selected Interviews and Other Writings 1972-1977, at 93 (Colin
Gordon ed., 1980).
12
See Spivak, supra note 9, at 275.
13
See Alasdair MacIntyre, After Virtue 69 (3d ed. 2007) (discussing the incommensurability of moral
traditions).
14
See Foucault, supra note 11, at 131.
15
See Ervin Staub, The Roots of Evil: The Origins of Genocide and Other Group Violence 15 (1989).

1
This study investigates the hypothesis that the crisis of modern legal legitimacy is rooted in
the failure of the "Legal Postulate" to successfully cross the Münchhausen Trilemma (the
problem of ultimate justification).16 By opting to conceal its inevitable "Axiomatic Stop" (its
unproven first principles) behind a veil of secular neutrality, like all other postulates, it must
ultimately rest its foundation on something arbitrary or dogmatic. The nature of the Legal
Postulate preempts a neutral ground to have an honest dialogue with the "Public Conscience"
and to establish a legal system of compromises and epistemic humility, given its limitations.17
This study asserts that if the legal postulate or the mechanisms managing it lose "Epistemic
Humility," the law transforms from a mediator of justice into a "jurispathic" (law-killing)
force that suppresses legal pluralism and, in turn, causes social dissonance.18

1.4 OBJECTIVES OF THE STUDY

The primary objectives of this dissertation are:

● To Deconstruct the "Legal Postulate": To analyze how modern legal authority

attempts to ground itself in the tripartite possibilities of the Münchhausen Trilemma
and to dissect the "mystical foundations" (axioms) it attempts to conceal.19
● To Define the "Public Conscience": To construct a theoretical model of the public’s
moral and intuitive epistemology, relience are placed on multiple disciplines
including cognitive psychology (intuition, cognitive biases), sociology (collective
consciousness), and postcolonial theory (the subaltern).20
● To assess the Dissonance: To examine the specific areas where the Postulate and
Conscience clash, more importantly approaching the concerted form of Liberalism,
Secularism, and Paternalism.
● To Analyze the Postmodern Turn: To evaluate whether critical theories
(Deconstruction, Feminism) serve as a resolution to this conflict or merely as a
multiplication of competing postulates.21

16
See Hans Albert, Treatise on Critical Reason 16 (Mary Varney Rorty trans., Princeton Univ. Press 1985)
(1968).
17
See generally Michael J. Sandel, Liberalism and the Limits of Justice (1982).
18
See Robert M. Cover, The Supreme Court, 1982 Term—Foreword: Nomos and Narrative, 97 Harv. L. Rev. 4,
40 (1983).
19
See Jacques Derrida, Force of Law: The "Mystical Foundation of Authority", 11 Cardozo L. Rev. 920, 943
(1990).
20
See generally Haidt, supra note 6; Durkheim, supra note 5.
21
See generally Critical Legal Studies (James Boyle ed., 1994).

2
 ● To Propose a Framework of Reconciliation: To argue for a shift from "Juridical
Monism" to "Legal Pluralism" grounded in the virtue of "Epistemic Humility."22

1.5 RESEARCH QUESTIONS

This study seeks to answer the following fundamental questions:

1. The Epistemic Question: How does the modern Legal Postulate attempt to solve the
problem of infinite regress in justification (the Münchhausen Trilemma), and what are
the consequences of concealing its "Axiomatic Stop"?
2. The Cognitive Question: What is the nature of the "Public Conscience"? Is it a valid
source of "paideic" (meaning-creating) law, or is it merely a cognitive bias prone to
becoming a destructive mob?23
3. The Political Question: How does the Liberal-Secular Postulate exercise "epistemic
violence" against the Conscience through mechanisms like "weak paternalism" and
the erasure of religious identity (Laïcité)24
4. The Normative Question: Can the concept of "Epistemic Humility" provide a viable
pathway for the state to accommodate legal pluralism without dissolving into
relativism?

1.6 HYPOTHESIS

This dissertation proceeds on the hypothesis that the Legal Postulate and the Public
Conscience represent two distinct epistemological systems, but are transactional in the sense
that the Public Conscience is, in essence, the creator of the Postulate and the Public
Conscience can be molded by the Postulate. The dissonance between them cannot be resolved
by the victory of one over the other (for illustration, by "educating" the public or
"overthrowing" the state, both of which fall into systemic instability). Instead, legitimate
authority can only be restored if the Legal Postulate undergoes a process of "Destigmatizing
the Axiom.” By admitting that its own authority rests on a "mystical foundation" (an
unproven choice) rather than absolute natural truths, the State can move away from an

22
See Santos, supra note 8, at 212.
23
See Cover, supra note 18, at 12 (defining "paideic" and "imperial" worlds).
24
See Talal Asad, Formations of the Secular: Christianity, Islam, Modernity 5 (2003).

3
ontology of "Imperial Command" to one of "Agonistic Pluralism,” which can tolerate the
coexistence of competing normative worlds.25

1.7 SIGNIFICANCE OF THE STUDY

● Theoretical Significance: This study bridges the gap between strict Jurisprudence
(Kelsen, Hart) and Critical Theory (Derrida, Spivak), by applying the philosophical
concept of the Münchhausen Trilemma to the practical problems of legal sociology.26
It offers a novel definition and description of the "Public Conscience" beyond mere
public opinion and as a distinct epistemic category.
● Practical Significance: In an era of increasing polarization, understanding the
"cognitive mechanisms" of the public (Haidt’s Elephant/Rider) is crucial for
policymakers.27 This study explains why abstract and technocratic "reasoning-why"
fails to persuade a public operating on "seeing-that" intuition, also by offering insights
into the mechanics of populism, religious conflict, and the "culture wars”.28

1.8 SCOPE OF THE STUDY

The scope of this research is interdisciplinary jurisprudence.

● Thematically: It directs on the conflict between State Law (The Postulate) and
Community Morality (The Conscience).
● Philosophically: It explores various traditions including the Continental tradition
(Foucault, Derrida), Analytical Jurisprudence (Hart, Kelsen), and Moral Psychology
(Haidt).
● Geographically/Culturally: While it relies heavily on Western liberal philosophy for
references, it does incorporate seminal works relevant to the Global South, also in the
Indian context of secularism and legal pluralism.29

1.9 LIMITATIONS OF THE STUDY

25
See Chantal Mouffe, Agonistics: Thinking the World Politically 7 (2013).
26
Cf. Karl Popper, The Logic of Scientific Discovery 93 (2002).
27
See Haidt, supra note 6, at 52 (discussing the elephant and rider metaphor).
28
Id. at 32.
29
See Ashis Nandy, The Politics of Secularism and the Recovery of Religious Tolerance, in Secularism and Its
Critics 321 (Rajeev Bhargava ed., 1998).

4
 ● Theoretical Abstraction: As a theoretical dissertation, this study prioritizes
conceptual modeling over empirical quantitative metrics. I employ 'Public
Conscience' strictly as a constructed category for analysis, while acknowledging that
the 'public' is, in reality, a fragmented and heterogeneous entity.
● Epistemic Bounds: The research is also beholden to the Münchhausen Trilemma,
given that this trilemma questions everything, the particular conclusions reached in
this dissertation may depend on its own axiomatic assumptions about the merits of
pluralism and humility.30
● Legal Scope: The thesis might may over reliant on certain features of legal
epistemology and normative mechanisms rather than the realities of actual legal
practice.

1.10 RESEARCH METHODOLOGY

The thesis follows a Qualitative, Doctrinal, and Interdisciplinary method.31

● Analytical Jurisprudence: To parse the internal logics of legal theories (Kelsen's

Grundnorm, Hart's Rule of Recognition).32
● Deconstruction: To read legal texts and doctrines for internal contradictions and their
manifest or latent hierarchies (Derrida).33
● Psychological & Sociological Analysis: To combine cognitive models (Haidt,
Kahneman) and social theories (Staub, Durkheim) in characterizing the Public
Conscience.34
● Diatopical Hermeneutics: Employing Boaventura de Sousa Santos’s method of
translating between different cultural logic systems (for example Western Human
Rights vs. Indigenous Duty).35

1.11 REVIEW OF LITERATURE

The study synthesizes vast literature especially across four disciplines:

30
See Albert, supra note 16, at 18.
31
See Terry Hutchinson, Researching and Writing in Law 20 (3d ed. 2010).
32
See Hart, supra note 3, at 100.
33
See Derrida, supra note 19.
34
See Daniel Kahneman, Thinking, Fast and Slow 20 (2011).
35
See Boaventura de Sousa Santos, Toward a Multicultural Conception of Human Rights, in Moral Imperialism:
A Critical Anthology 39 (Berta Esperanza Hernández-Truyol ed., 2002).

5
 ● Legal Philosophy: Especially on Hans Kelsen and “the Grundnorm” as the
"Axiomatic Stop";36 H.L.A. Hart and Lord Devlin on the “enforcement of morality”;37
and Robert Cover on "Jurispathic" vs. "Jurisgenerative" law.38
● Psychology (moral, cognitive, social): Psychology (moral, cognitive, social):
Principally, Jonathan Haidt (The Righteous Mind) on “intuition and reason”,39 Ervin
Staub on the "Continuum of Destruction," and Levine on "Truth-Default Theory”."40
● Critical & Post-Colonial Theory: Michel Foucault on “Power/Knowledge”,41
Gayatri Spivak on the “Subaltern”,42 Edward Said on “Orientalism”,43 and Judith
Butler on “performativity”.44
● Epistemology: Karl Popper on “critical rationalism” (Münchhausen Trilemma),45 and
Boaventura de Sousa Santos on the "Ecology of Knowledges."46

1.12 CHAPTERISATION

The dissertation is organized as follows:

● Chapter 1: Introduction: (Current Chapter) outlines the research problem, aim and
methodology.
● Chapter 2: The Epistemic Question of Authority: Deconstructs the "Legal
Postulate." It analyzes the problem of justification, the Münchhausen Trilemma, and
the "Axiomatic Stop" (Kelsen’s Grundnorm), placing the critique that law relies on its
epistemological justification from a "mystical foundation."
● Chapter 3: The Public Conscience: Constructs an antagonist to the Postulate, using
intersections of anthropology, sociology, and psychology to define the "Conscience"
as an intuitive, subaltern force. It also brings forward its susceptibility to biases,
"mob" mentality, and passivity.

36
Kelsen, supra note 10, at 201.
37
See Patrick Devlin, The Enforcement of Morals 10 (1965).
38
Cover, supra note 18, at 53.
39
Haidt, supra note 6.
40
See Timothy R. Levine, Duped: Truth-Default Theory and the Social Science of Lying and Deception 15
(2019).
41
Foucault, supra note 11.
42
Spivak, supra note 9.
43
See Edward W. Said, Orientalism 3 (1978).
44
See Judith Butler, Gender Trouble: Feminism and the Subversion of Identity 25 (1990).
45
Popper, supra note 26.
46
Santos, supra note 8.

6
● Chapter 4: Arenas of Conflict I: Examines the clash between the Postulate and
Conscience within Liberalism. It critiques the "Tabula Rasa" view of the self, the
"Harm Principle," and the "Paternalistic" intervention into religious/cultural life.
● Chapter 5: The Postmodern Turn: Analyzes the role of Deconstruction and Critical
Theory. It argues that while these theories empowered the subaltern to speak, they
have resulted in a multiplication of competing postulates rather than a resolution.
● Chapter 6: A Way Forward - Epistemic Humility: Proposes the solution. It argues
for a shift to Legal Pluralism, "Loose Coupling" (Teubner), and "Agonistic
Pluralism," grounded in the state’s admission of its own epistemic limits.

7
CHAPTER 2: THE EPISTEMIC QUESTION OF AUTHORITY:
POSTULATES, AXIOMS, AND THE MÜNCHHAUSEN
TRILEMMA

2.1 INTRODUCTION: THE PROBLEM OF JUSTIFICATION

Discourses of the public, to varying degrees, are fundamentally reliant on presuppositions and
ideological “cultural logics” ingrained in the public domains.47 This does not always have to
be articulated; it can be unarticulated, "largely invisible" to those who hold them or whom
they are used against, or as taken-for-granted common sense, or self-evident, logical, or
simply "the way things are”.48 When these “invisible ones” are left untested, they thereby
mutate to an invisible “regime of power” that enables an ideological hegemony, which for all
practical purposes censors the discourse.49 In the Foucaultian lens, this doesn't necessarily
imply an ideological domination via physical control or coercion, albeit it could effectively
be achieved via “naturalizing” of the dominant worldview, which is in the process accepted
as the "common sense" of the entire society.50 This quasi-natural process, by design, is an
exclusionary one which is argued to be formulated with the least inputs from larger segments
or even without participation from certain elements.51 A parallel sentiment can be seen in the
work of Spivak. She points out that, there exist a structural silencing of the subaltern
elements, whose perspectives are dismissed because it is “incompatible” with the dominant
discourse.52 Chomsky complements this by noting that the "smartest" way to keep people
passive isn't to stop people from talking, but is to strictly limit the range of acceptable opinion
all while allowing a lively debate within that predetermined spectrum.53 Chomsky’s notion
highlights that even the public debates are not inescapably free but are masked by a powerful
illusion of freedom, all while they are by default bound by the prevailing presuppositions,
which are forbidden fruits to the ordinary or subaltern elements.54

47
See Pierre Bourdieu, Outline of a Theory of Practice 164 (Richard Nice trans., Cambridge Univ. Press 1977)
(1972) (discussing doxa).
48
See Antonio Gramsci, Selections from the Prison Notebooks 323 (Quintin Hoare & Geoffrey Nowell Smith
eds. & trans., 1971) (on "common sense").
49
See Foucault, supra note 11, at 133.
50
Id.
51
See Iris Marion Young, Justice and the Politics of Difference 58 (1990).
52
See Spivak, supra note 9, at 283.
53
See Noam Chomsky, The Common Good 43 (1998).
54
Id.

8
Law and the discourses surrounding jurisprudence are also no exception to the implications
of the above averments. Law also operates within its own "juridical field” via the largely
invisible doctrines and taken-for-granted axioms.55 This dissertation rests most of its case in
the jurisprudential question that arises from the crisis: "On what basis does the law claim to
know what is just and how does that claim hold up in a morally heterogeneous society?".56

In fact, in the most fundamental sense, here there is no case that it is a question of
normativity, but instead is one of epistemology. Here the attempt is to understand how law
and the discourses of jurisprudence attempt to solve the epistemic crisis embedded in testing
the premises, also the question of whether it's revealing more questions than it answers.57
This epistemic crisis in law is arguably a direct consequence of the problem of deriving an
"ought" from an "is," a logical fallacy pioneered by David Hume and known in philosophy as
“Hume's Law”.58 The entire project of Kelsen's Pure Theory of Law, with its attempt to
separate Sein (being) and Sollen (ought-to-be), was more of a direct attempt to escape the
dooms of Hume’s guillotine.59 It attempted to ground the law's "ought" without turning to
factual "is.”60

This dissertation will argue that this crisis is defined by a fundamental dissonance between
two epistemological Paradigms: The "Legal Postulate" (The law's internal, self-referential,
and rationalized moral logic) and the "Public Conscience" (The intuitive, affective, and
communal moral framework of the populace).61

This chapter will deconstruct the first of these concepts. It will argue that the Legal Postulate,
like all other systems of authority and rationalization, faces the same problem with the part of
justification. To ground its authority, it must terminate in an axiomatic Stop, instead falling
into the other horns of the Münchhausen Trilemma.62 Kelsen's Grundnorm is considered as
the most sophisticated attempt to solve the justification.63 The modern crisis of legitimacy
stems not from the existence of this axiom, but from the secular-liberal Postulate's denial of it

55
See Pierre Bourdieu, The Force of Law: Toward a Sociology of the Juridical Field, 38 Hastings L.J. 805, 814
(1987).
56
See Ronald Dworkin, Law’s Empire 90 (1986).
57
See Brian Leiter, The Epistemology of Admissibility, 2019 Faculty Workshop Papers 1 (2019).
58
David Hume, A Treatise of Human Nature 469 (L.A. Selby-Bigge ed., Oxford Univ. Press 1978) (1739).
59
Kelsen, supra note 10, at 5.
60
Id.
61
See Cover, supra note 18, at 4 (discussing the tension between state law and narrative).
62
See Albert, supra note 16, at 18.
63
See Julius Stone, The Province and Function of Law 95 (1950).

9
masking what is ultimately a "mystical foundation of authority" under a veil of objective,
impersonal reason.64

2.2 THE MÜNCHHAUSEN TRILEMMA AND THE INEVITABILITY OF

DESTIGMATIZING OF THE AXIOMATIC STOP

As per the settled principles, secular modernity requires rationalisation for every ideological
or conceptual proposition; here is where the "regress problem” comes to the equation.65 The
“regress problem” is a most fundamental epistemic challenge against secular modernity's
claim of being epistemically superior, as it postures itself rational in contrast to the irrational
or dogmatic alternative beliefs.66 The famous "Münchhausen Trilemma," especially in the
discipline of critical rationalism, states that any attempt to provide a final justification (or
"grounding") for a claim must terminate in one of three unsatisfactory outcomes.67 This
trilemma was a primal critique against traditional “justificationism”.68 The 3 possible
outcomes in this epistemological problem are:

1. An Infinite Regress: Each justification requires a further justification in a chain that

never goes into the infinite loop and never ends. This is otherwise also called the
infinite regress fallacy.69
2. A Circular Argument: The justification eventually loops back or goes circular. It
falls into a logical fallacy, because it essentially takes for granted the very conclusion
it aims to validate.70
3. An Axiomatic Stop: The chain of reasons ends at an assumption or belief that is self-
evident or simply accepted as dogma.71

This trilemma is considered inescapable.72 Pragmatically, the entire epistemological project

aims to avoid this trilemma. Also in the epistemological realm, the first horn can be called
infinitism, the second coherentism, and the third is foundationalism.73 Foundationalism,

64
See Derrida, supra note 19, at 943.
65
See Richard Rorty, Philosophy and the Mirror of Nature 170 (1979).
66
See Charles Taylor, A Secular Age 25 (2007).
67
See Albert, supra note 16, at 18.
68
See Karl Popper, Conjectures and Refutations: The Growth of Scientific Knowledge 25 (1963).
69
See Peter D. Klein, Human Knowledge and the Infinite Regress of Reasons, 33 Phil. Persp. 383, 385 (1999).
70
See Ernest Sosa, The Raft and the Pyramid: Coherence versus Foundations in the Theory of Knowledge, 5
Midwest Stud. Phil. 3, 5 (1980).
71
See Albert, supra note 16, at 19.
72
Id,
73
See Laurence BonJour, The Structure of Empirical Knowledge 8 (1985).

10
reading from a secular perspective, was an attempt to resolve the regress by placing reliance
on self-evidential propositions, but intimately faces the arguments from arbitrariness and
disagreements.74 Coherentism attempts to solve the regress by framing the beliefs as mutually
justified, but is famously accused of falling into circularity.75

Every system of justification, be it scientific, legal, or theological, must ultimately rest on this
third horn.76 One form of escaping is to begin with a set of "absolute presuppositions" that are
simply presupposed rather than proven, but essentially it is not an absolute rationalism the
secular modernity envisions but an escapism.77 In jurisprudence, this "Axiomatic Stop" is
found to have the most parallel in the concept of Grundnorm or "Basic Norm", the unproven,
presupposed norm that is designed to validate the entire legal order.78 Legal and philosophical
scholars have explicitly analyzed the Grundnorm as Kelsen's direct confrontation with the
justification regress famously articulated in the Münchhausen Trilemma.79 Kelsen’s "pure
theory" attempts to solve the regress problem by positing the Grundnorm as a "hypothetical"
or "transcendental" presupposition, thereby intentionally "breaking-off" the chain of
justification to avoid an infinite regress.80

While the Grundnorm is most obviously an "Axiomatic Stop", it also succumbs, still falling
in the loop of circularity.81 This is because, as per Kelsen, the Grundnorm is only
presupposed if the legal order it finds is already "by and large effective."82 The foundation, in
effect, relies on the existence of the very thing it is meant to found, hence circular.

What this dissertation defines as the Postulate, is a fundamental epistemic rationalisation or

not falling in the epistemological conundrum, at the same time acknowledging the
impossibility or absolute form of rationalisation, but that attempt of rationalisation can
humbly be terminated at a certain point for larger common good.83

2.3 THE LEGAL POSTULATE AS "FICTIONAL EXEGESIS”

74
Id. at 26.
75
See Sosa, supra note 70, at 10.
76
See Ludwig Wittgenstein, On Certainty § 110 (G.E.M. Anscombe & G.H. von Wright eds., Denis Paul &
G.E.M. Anscombe trans., 1969).
77
See R.G. Collingwood, An Essay on Metaphysics 31 (1940).
78
Kelsen, supra note 10, at 201.
79
See Uta Bindreiter, Why Grundnorm? A Treatise on the Implications of Kelsen’s Doctrine 28 (2002).
80
See Kelsen, supra note 10, at 202.
81
See Stone, supra note 63, at 100.
82
Kelsen, supra note 10, at 212.
83
Cf. John Rawls, Political Liberalism 137 (1993).

11
Perhaps the most ambitious attempt to create a Postulate that seems to escape the
Münchhausen Trilemma is the modern secular legal system. Rather than a system of
axiomatic assertions, it is one of the attempts to entail objective, impersonal, and logical
deduction which in Max Weber’s terms is “rational-legal authority.”84

This rationalist ambition can be seen in the codification movement in post-Revolutionary

France. Influenced by Montesquieu's vision of judges as merely "the mouth that pronounces
the words of the law," the Napoleonic Code was intended to be a complete, gapless, and
rational system.85 Judges were intended to be mechanical in their methods of interpretation
who enforce law through a syllogistic process based on pure written law.86

This project, however, was considered a failure among the contemporaneous and later jurists.
As the French jurist François Gény demonstrated (and as illustrated by Julius Stone), this
formalist ideal collapsed against two realities:

1. The “inherent limitations of language” – its semantic indeterminacy and vagueness.87

2. The potentially endless novelty of ‘unforeseen factual situations’ (possible lacunae in
the law).88

The primary problem embedded in the civil law, for the Judges, while they were forbidden
from legislating from the bench, were also simultaneously forbidden from not rendering a
decision (under Article 4 of the Code).89 In this status quo they were forced into a process
Gény termed "fictional exegesis" (While libre recherche scientifique was his proposed
solution, the "fictional exegesis" was his diagnosis of the problem).90 They were, in fact,
creating new law while pretending to be imparting the deductive analogy to derive a decision
by placing the Code as the premise.91 This "fictional exegesis" is arguably a mechanism of

84
Weber, supra note 1, at 215.
85
Charles de Secondat, Baron de Montesquieu, The Spirit of the Laws 163 (Thomas Nugent trans., 1949)
(1748).
86
See John Henry Merryman & Rogelio Pérez-Perdomo, The Civil Law Tradition: An Introduction to the Legal
Systems of Europe and Latin America 36 (3d ed. 2007).
87
See H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 Harv. L. Rev. 593, 607 (1958)
(discussing the penumbra of doubt).
88
See François Gény, Méthode d'interprétation et sources en droit privé positif (1899).
89
Code Civil [C. civ.] art. 4 (Fr.).
90
Gény, supra note 88.
91
See Julius Stone, Legal System and Lawyers' Reasonings 215 (1964).

12
the Legal Postulate in the judicial realm, where the judge’s creativity is hidden under the
facade of deductive logic.92

Stone accentuates that this is an a fortiori argument for the fictitious character of the
Postulate in other legal systems: If syllogistic logic fails in civil law where there are well-
defined (as far as possible) premise (the code) it will certainly, a fortiori engender more
problems in the common law's stare decisis.93

2.4 THE POSTULATE AS A "MYSTICAL FOUNDATION”

If Gény’s understanding helps us understand how the legal postulate operates, Jacques
Derrida provides its metaphysics. In his seminal essay, Force of Law, Derrida deconstructs
the law’s ultimate claim to authority.94 The very founding and justifying moment that
institutes law, the fiat of its creation, is, for Derrida, not “legal” or “just” or “unjust”
according to the standards of the system.95 It is a ‘performative force’ that brings “law” into
being from a state of “non-law”. It is an originary, "performative force" that brings "law" into
being from a state of "non-law”.96 Citing Pascal and Montaigne, Derrida identifies this as the
"mystical foundation of authority”.97 The law’s founding is “mystical” not in a religious
sense, but only in that it is “a violence without a ground”.98 This coup de grace is the
metaphysical event of installing the Axiomatic Stop". It is an un-justifiable, non-legal act that
creates the premises upon the future justification grounds. Arguably in terms of semantic
accuracy, it could be classified as pseudo-justification.

The law, therefore, "is essentially deconstructible", not because it is necessarily unjust, but
because "its ultimate foundation is by definition unfounded."99 The Legal Postulate, as this
dissertation defines it, is the composite of these ideas. The law’s metaphysical origin in
Derridean understanding of "mystical”.

2.5 COMPARATIVE POSTULATES: THE THEOLOGICAL AXIOMATIC STOP

92
Id.
93
Id. at 240.
94
Derrida, supra note 19.
95
Id. at 941.
96
Id. at 927.
97
Id. at 939 (citing Blaise Pascal, Pensées § 298 (1670)).
98
Id. at 943.
99
Id.

13
The modern secular legal Postulate engenders an epistemic crisis because of its denial or
attempts to conceal its own axiomatic nature.100 Theological and philosophical systems, in
contrast, are considerably far more epistemologically honest (hence, the critique of
dogmatism). Much of the theological schools across the religions do embrace the "Axiomatic
Stop" as first principles for all subsequent reasoning, in varying degrees or by redefining
what is an “Axiomatic Stop”.101

2.5.1 The “Voluntarist” Postulate: The "Axiomatic Stop" as Pure Will

Theological voluntarism or Divine Command Theory (DCT) puts forward God's sovereign
will as the ultimate, uncaused first principle.102 Despite its primary conception to ascertain
objectivity in the epistemological realm, the Euthyphro dilemma ("is it good because God
commands it, or does God command it because it is good?") does introduce a conundrum for
the DCT.103 Even though the Euthyphro dilemma was famously articulated as an argument
against the religious conception of morality, secular morality also faces the issue to a
different extent.104 From a nihilistic perspective, every choice is arbitrary. Choosing one set
of moral norms, be it a choice in meta-ethics or normative ethics, over another is
epistemically indistinguishable from the action of an arbitrary god.105 It also needs to be
acknowledged that the placement of God in the equation has further justification, as it could
be argued that the “arbitrariness of command” in itself is not the final grounding. Instead, the
theistic stance may get a leeway for not grounding rationale in the content of the command
but grounding it in the claim of the existence of God”.106

The Ash'arī school of Islamic theology, particularly in the work of Abū Ḥāmid al-Ghazālī, is
important to address the attempts made in the theological context of Ash'arīte “biting the
bullet” of arbitrariness.107 This meta-ethic is a direct extension of Ash'arī occasionalism (fire
does not cause cotton to burn; rather, God creates the habit of burning alongside the fire),
which was originally made as the philosophical critique against Neoplatonic-influenced
works such as those of Al-Farabi and Ibn Sina. Ash'arī occasionalism denies all secondary

100
See Foucault, supra note 11, at 93.
101
See Alasdair MacIntyre, Three Rival Versions of Moral Enquiry 10 (1990).
102
See Robert Merrihew Adams, Finite and Infinite Goods 15 (1999).
103
Plato, Euthyphro, in Complete Works 1, 10a (John M. Cooper ed., 1997).
104
See G.E.M. Anscombe, Modern Moral Philosophy, 33 Philosophy 1, 2 (1958).
105
See Friedrich Nietzsche, The Will to Power § 253 (Walter Kaufmann & R.J. Hollingdale trans., 1967).
106
See Richard Swinburne, The Existence of God 110 (2d ed. 2004).
107
See Al-Ghazali, The Incoherence of the Philosophers 155 (Michael E. Marmura trans., Brigham Young Univ.
Press 2000).

14
causation.108 The Ash'arī school advances from this premise to hold that an act of "justice" is
not intrinsically or inherently good, but determined by God's commands and prohibitions.
God creates its "goodness" ex nihilo at the moment He commands it.109 It also must be kept in
mind that the Athari or Hanbalite position rests in the nature of God, which is necessarily and
perfectly good. Individual’s actions, such as murder, are bad evil because it contradicts
God’s nature.110 This is in direct contrast to the Ash'arī theologians, who accept the burden of
the arbitrariness objection.

In order to understand the axiom of the Ash'ari tradition, its Rejection of Infinite Regress
must be acknowledged, particularly the Kalam Cosmological Argument which argues the
actual infinite series of past events (or causes) is a metaphysical impossibility.111 Its axiom is
“necessary stop is the First Cause, or God”, but this extends to the Self-Evident Truths
(darūriyyāt) and Revelation (naql). This argument was made popular by William Lane Craig
in the contemporary period as an argument for God.112 The Athari (or Hanbalite) argument,
particularly in the work of Ibn Taymiyyah, grounds this knowledge in the fitra (the sound,
innate human disposition), which is the axiom in this case.113

It also must be crucially noteworthy that “the arguments for the God” from the theological
milieu do replace the onus of the justification of the Postulate to a separate axiomatic Stop of
“existence of god”. For example, in the Athari/Hanbalite school, emphasis is placed on an
axiom of Innate Belief (Fitra), claiming belief in God is similar to a baby's instinct to suckle,
an innate instinct.114 This belief has a parallel in popular understandings of God and studies
(such as cognitive scientist Justin Barrett's work providing evidence that children are "born
believing in a higher power”), but it finds less reference in logical attempts to prove God's
existence. Furthermore, this axiom is not a demonstrative proof that could be dismissed as
fallacious (akin to the naturalistic fallacy).115

This Ash'arī attempt rebuts the "problem" of arbitrariness by re-defining it as a category

error. To ask why God commanded something is, in the Ash'arī theology, to nonsensically

108
Id. at 170.
109
See George F. Hourani, Reason and Tradition in Islamic Ethics 35 (1985).
110
See Ibn Taymiyyah, Aqwam ma Qila fi al-Mashī’ah wa al-Ḥikmah wa al-Qaḍā’ wa al-Qadar [The Most
Upright of What Was Said Concerning Will, Wisdom, Decree and Destiny] 45 (1972).
111
See William Lane Craig, The Kalam Cosmological Argument 63 (1979).
112
Id. at 65.
113
See Wael B. Hallaq, Ibn Taymiyya Against the Greek Logicians 135 (1993).
114
Id.
115
See Justin L. Barrett, Born Believers: The Science of Children's Religious Belief 12 (2012).

15
demand a cause for the First Cause.116 This finds a parallel in Latin Christianity with the
“voluntarism” pioneered by Duns Scotus and, more radically, William of Ockham.117 They
argued that God's absolute and unconstrained will (His potentia absoluta) is the ultimate
axiom.118

One of the primary needs to ascertain theological epistemology is to understand why certain
moral positions, which are otherwise unacceptable or incomprehensible in secular logic, have
been followed by the theistic elements in the society. Similar to what Søren Kierkegaard later
held, the divine command demands a "teleological suspension of the ethical," where the
individual’s vision to attain salvation or have a direct relationship with the Divine bypasses
the need for an independent idea of morality and justice.119

2.5.2 The Rationalist Postulate: The "Axiomatic Stop" as Divine Intellect

While the attempts by the above theologians or schools were to rest the case in God's
absolutism, the other counterpart is the rationalist postulates, which ground their axioms not
in God's raw will, but in His perfect and unchanging intellect.120 This is biting the second
horn of the Euthyphro dilemma: God commands an act because it is good. The “goodness” is
an objective reality, co-eternal with God's own nature.121

Within Islam, the Ash'arī were opposed by the Mu'tazilī school, who argued that good and
evil are objective, rational categories that God's revelation merely confirms human reason can
discover.122 This rationalist perspective was pioneered by philosophers like Ibn Sina
(Avicenna); God is a "Necessary Existent", a “Supreme Intellect” whose rational nature
safeguards a stable and intelligible cosmos.123 Avicenna's solution to the trilemma is a form
of Foundationalism. Just as the chain of contingent beings must stop at a "Necessary
Existent" (wājib al-wujūd), the chain of justified beliefs must stop at "first principles" (al-
awwaliyyāt).124 As per Avicenna, these self-evident truths (for example, the law of non-

116
See Hourani, supra note 109, at 40.
117
See William of Ockham, Quodlibetal Questions, in Ockham: Philosophical Writings 20 (Philotheus Boehner
ed. & trans., 1990).
118
See John Duns Scotus, Ordinatio, in Duns Scotus on the Will and Morality 188 (Allan B. Wolter ed. &
trans., 1986).
119
Søren Kierkegaard, Fear and Trembling 54 (Alastair Hannay trans., Penguin Books 1985) (1843).
120
See Edward Feser, Scholastic Metaphysics: A Contemporary Introduction 215 (2014).
121
See Plato, supra note 103, at 10d.
122
See Majid Fakhry, Ethical Theories in Islam 31 (1991).
123
See Avicenna, The Metaphysics of The Healing 250 (Michael E. Marmura trans., Brigham Young Univ.
Press 2005).
124
Id. at 255.

16
contradiction) can be known via intellect (aql) and do not end in being arbitrary. Avicenna’s
“The Proof of the Truthful” or his version of the contingency argument was an alternative to
Aristotelian methodology. Averroes (Ibn Rushd) criticized Avicenna for this, arguing that
proofs for God should be physical (based on motion) rather than metaphysical (based on
being).125 Avicenna's burhan or contingency argument for god's existence is also relevant
here, which is based on “contingency” and "necessary existence." Pertaining to the
Münchhausen Trilemma, Avicenna, unlike the Ghazalian approach, does not necessarily
reject an infinite past, instead arguing “even an infinite set of contingent things is still, by its
nature, composite”.126 Because it is composite, it is consequentially contingent and requires
an external and necessary existence.127

This Aristotelian-rationalist methodology was central to Jewish and Christian thought. Ibn
Rushd’s counter-movement, influenced by the Greco-Roman philosophical tradition and
against the orthodox position, had significant momentum in the philosophical development in
Christendom and later Euro-centric movements.128 For instance, the famous Jewish scholar
Moses Maimonides rejects the pure voluntarism of the Ash'arī.129 He argued that all
commandments have rational causes rooted in "the welfare of the soul and the welfare of the
body".130 Similarly, Thomas Aquinas embodied Aristotelian philosophy with Christian
doctrine.131 As per his doctrine God is “ipsum esse subsistens” (subsistent being itself) and
“Logos” (Reason). From a Thomistic perspective, the "Axiomatic Stop" is the Eternal Law.132
This is God's own unchangeable, rational nature, from which Natural Law is evolved by
providing an ethical structure to humans.133 But the essential challenge in taking the second
horn in Euthyphro is that it challenges the idea that God is the ultimate power and has
authority as the sole lawgiver; it implies He is also bound to external and independent
standards. This debate also continues in the modern philosophical milieu of religion. The
contemporary philosopher, and also a proponent of DCT, William Lane Craig offers a
modified rationalist Postulate that the "Axiomatic Stop" is God's essential nature. God's
commands are not arbitrary (contra voluntarism), nor are they based on a standard external to

125
See Averroes, The Incoherence of the Incoherence 190 (Simon Van Den Bergh trans., 1954).
126
Avicenna, supra note 123, at 262.
127
Id.
128
See Alain de Libera, La philosophie médiévale 320 (1993).
129
See Moses Maimonides, The Guide of the Perplexed 510 (Shlomo Pines trans., Univ. of Chi. Press 1963).
130
Id. at 512.
131
See Thomas Aquinas, Summa Theologica I-II, q. 91, art. 1 (Fathers of the English Dominican Province
trans., 1920).
132
Id. at q. 93, art. 1.
133
Id. at q. 94, art. 2.

17
Himself (contra pure rationalism). Rather, His commands flow necessarily from His perfectly
good, rational, and loving nature.134 This has a parallel in the Hanbalite school’s
understanding with exception to understanding God’s scope.

As scholars of comparative philosophy note, the traditional Postulate begins with its axiom:
Ontology (the nature of God or Being) determines Epistemology (how we know), which in
turn determines Axiology (what is good), which finally determines the applied ones such as
Politics, Law, and Economics.135 Arguably, they do not hide their 'mystical foundation', but
merely declare it as their first principle.

2.5.3 A Case of Hinduism: Diversity of Postulates

The most dominant orthodox postulate of Hinduism could be the Dharma, alternatively
identified as “cosmic truth”.136 The orthodox discourse altogether skips the above debates
surrounding Divine will or the divine intellect, instead placing its epistemological reliance on
the impersonal and pre-existing cosmic order, which is eternal and without a beginning or
end (Anadi).137 This effectively replaces the God entity with this cosmic order. The
justification or the knowledge of the existence of Dharma comes from the Vedas, which are
considered uncaused and self-evident.138 The criticality of this corpus is that the Vedas are
considered authorless and impersonal. Even though it is attributed to human sages, it is
believed it is not their inputs, but perceived or "heard" by them.139 It also must be understood
that the orthodox position exists in tension with the other possible postulates such as of
Bhakti (devotional), Tāntric (esoteric), and Paurāṇika (popular) postulates.140

The general understanding in Hinduism is that it does not hold a monolithic understanding
and may render scope for varying doctrines from the divinity level (Monotheism, Polytheism,
Panentheism/Pantheism, Monism, Atheism/Agnosticism).141 This is in contrast with the
Abrahamic religions where they are foundationally monotheistic and creedal. The

134
See William Lane Craig, Reasonable Faith: Christian Truth and Apologetics 180 (3d ed. 2008).
135
See Seyyed Hossein Nasr, Knowledge and the Sacred 65 (1981).
136
See Gavin Flood, An Introduction to Hinduism 53 (1996).
137
Id. at 55.
138
See Sarvepalli Radhakrishnan, Indian Philosophy 129 (1923).
139
Id. at 131.
140
See Flood, supra note 136, at 110.
141
See Jeaneane D. Fowler, Hinduism: Beliefs and Practices 9 (1997).

18
interpretative diversity in these religions persists in “Jurisprudential, Exegetical, Theological”
realms.142

The saying in the Rigveda, “Truth is one, but the wise call it by many names" (Ekam Sat
Vipra Bahudha Vadanti) illustrates this plurality.143 The Bhagavad Gītā, for example,
portrays a conflict between Arjuna’s consequentialism and the procedural idealism of
Krishna.144

2.6 THE SECULAR POSTULATES: FROM GENERAL EPISTEMOLOGY TO LAW

If Speaking in abstract terms, while the secular-modernist attempts to rationalize the aspects
of philosophical anthropology, including its stated morality and justice, it cannot essentially
escape the epistemological problems, such as the Münchhausen Trilemma, the is-ought
fallacy, and so forth.145 If speaking in abstract terms, the modernist attempt was a relocation
of the emphasis from transcendent God to a set of terrestrial or ideological absolutes such as
materialism, humanism, and empiricism.146 The modernist attempts to be dogma-free come at
the expense of being less transparent on first principles; its success perhaps lies in its
appearance of “aesthetically or politically compelling” performative ”rationalism”.147 While
existentially defined to be “neutral discoveries,” perhaps as argued here it still has some
confluence of metaphysics and "mystical foundation" that forms modern academia, and by
extension, influences the philosophy of the modern legal state.148

In the epistemological and ontological realm, empiricism, rationalism, and

Naturalism/materialism were ambitious projects to make sense of things and explain in non-
religious ways. Projects like Secular Humanism, unlike other academic projects, have been
more polemic to replace God.149

When identifying the secular postulate, it is essential to draw towards the developments in
moral philosophy, which have much to contribute to this area. While religions are
presupposed in general to be dogmatic or ultimately placing reliance on God’s will, the

142
See Wael B. Hallaq, Shari'a: Theory, Practice, Transformations 20 (2009).
143
Rig Veda 1.164.46.
144
See Amartya Sen, The Argumentative Indian 3 (2005).
145
See Hume, supra note 58, at 469.
146
See Charles Taylor, A Secular Age 25 (2007).
147
See Butler, supra note 4, at 5.
148
See Bruno Latour, We Have Never Been Modern 10 (Catherine Porter trans., 1993).
149
See Paul Kurtz, In Defense of Secular Humanism 15 (1983).

19
trajectory of independent ethical movements was intertwined with religious teachings in the
early to medieval phase; secularisation of the discourse accelerated afterward.150

Moral philosophy is essentially divided into various branches, mainly meta-ethics and
normative ethics. Meta-ethics deals with questions of semantics, epistemology, and ontology,
while normative ethics addresses the question of how one ought to act to be moral.151 The
meta-ethical field, in turn, features the conflicts of cognitivism vs. non-cognitivism, moral
realism vs. anti-realism, and objectivism vs. subjectivism.

The most potent attempts at secular postulates are made in the “Enlightenment movement,”
principally “reason” as Central. Immanuel Kant’s moral project is the quintessential example
of this. His "Axiomatic Stop" is the Categorical Imperative.152 While deviating from the
divine or empirical perspective, he hinges his entire argument on a priori reasoning from the
free and rational will of the individual.153 In normative ethics, particularly deontological
ethics, the most acknowledged attempt to ground in a priori or in first principles could be
Kant's categorical imperative. The line of reasoning rests in "Act as if the maxim of your
action were to become by your will a universal law of nature".154 Kantian ethics does offer a
solution to the epistemological conundrum the thesis brings forward, by making a universalist
and relatively objective criterion, to the problems faced by Consequentialist ethics, especially
in cases where controversial issues arise such as in "gang rape”, where it struggles to
condemn unequivocally where pleasure outweighs pain.155 Also in the legal realm,
particularly for liberal rights which prioritize autonomy and liberty, kantian deontology
prevent those rights from being undermined by utilitarian calculations of the larger common
or public good. But utilitarianism does provide much more elasticity than the more objective
Kantian ethics. Kantian ethics, is oft criticisized for being inflexible comparable to religious
dogma or could be more so, such as in the case of a famous example of a murderer at the
door (where you must not lie even if you can save a person) which conflicts with another
universal principle (murder is wrong).156 Taha Abderrahmane argues Kant's attempt was not
an independent attempt of enlightenment rationalism but a transfiguration of religious

150
See MacIntyre, supra note 13, at 36.
151
See Alexander Miller, Contemporary Metaethics: An Introduction 3 (2d ed. 2013).
152
Immanuel Kant, Groundwork of the Metaphysics of Morals 31 (Mary Gregor ed. & trans., Cambridge Univ.
Press 1998) (1785).
153
Id. at 33.
154
Id. at 31.
155
See Christine M. Korsgaard, The Sources of Normativity 100 (1996).
156
See Immanuel Kant, On a Supposed Right to Lie from Philanthropy, in Practical Philosophy 611 (Mary J.
Gregor ed. & trans., 1996).

20
ethics.157 He argues Kant employs a "method of substitution” which per se secularizes or
obscures religious ethics. This criticism is profound in a way which suggests the
enlightenment rationalism’s attempt to derive objective morality is in a way a form of
obscurantism via employing novel or sophisticated terminology, rather than genuinely
solving anything.158

As the Kantian ethics addressed is essentially a deontological ethics, it is also essential to

discuss its counterpart in normative ethics, which is consequentialism. It is the direct opposite
of deontology and revisiting the example of the murderer at the door where a consequentialist
may lie because the consequence of saving a life outweighs the act of lying.159 For instance,
the right to self-defense is difficult to justify under strict deontology, which views killing as
inherently wrong without exception. However, consequentialism permits it by prioritizing the
survival of the innocent. It does not present an a priori reason but an a posteriori empirical
fact. But an underlying problem arises if radical consequentialism is applied. It can be used to
justify actions that seem intrinsically wrong, like theft (the "Robin Hood" example, where the
thief takes articles from rich and affluent ones, for the benefit of the larger ordinary
populace). In the political or legal realm, “tyranny of the majority” or appeal to the majority
can be a resultant of this philosophy.160 A purely consequentialist understanding may equate
manslaughter and murder because the consequence is essentially the same. Also, it may fail
to grasp the common human intuitions and their autonomy, such as “when a mother is faced
with saving her child or another child from drowning.” While the above are issues in the
applied level, there are underlying problems consequentialism faces which are unique to it.
As consequentialism is futuristic, we will have to rely on the estimation of potential future
consequences of our acts, and this is the major weakness that is typically unknowable in the
real world.161 It most importantly also falls into the Münchhausen Trilemma of circularity or
“question-begging”, like “it's desirable because it is desired”, or even though it is considered

157
See Wael B. Hallaq, The Impossible State: Islam, Politics, and Modernity’s Moral Predicament 75 (2013)
(discussing Abderrahmane's critique).
158
Id.
159
See Walter Sinnott-Armstrong, Consequentialism (2003).
160
See Alexis de Tocqueville, Democracy in America 250 (Harvey C. Mansfield & Delba Winthrop trans.,
Univ. of Chi. Press 2000) (1835).
161
See G.E. Moore, Principia Ethica 149 (1903).

21
to most probably end in circularity but it may also end in infinite regress, if there is effort to
place reliance on external rationale.162 The "Is-Ought" Problem is also applicable.

Utilitarianism, As formulated by John Stuart Mill, identifies the “greater happiness for many”
as the foundational principle of its presupposition.163 It must be understood that while
utilitarianism is the popular consequentialist theory, it does not necessarily imply all
consequentialists are utilitarians. Mill attempts to "prove" this principle by asserting that
happiness is the only thing desirable as an end, yet this "proof" is famously tautological.164
As utilitarianism is a consequentialist theory, it does not identify something as inherently
wrong or right. For example, in the case of bullying an overweighted kid, which herein is not
inherently wrong, but if we are rigidly applying the standards of utilitarianism in an aggregate
sense, and a mechanical and quantitative calculation, there is elevated happiness to the large
number of bullies in contrast to the suffering caused to a single overweighted kid.165 Also it
may struggle with issues of slavery (suppose if enslaving the whole left-handed men
increases utility: would it be justifiable). Utilitarianism’s underlying epistemological reliance
is placed on the observation that people do desire happiness, which does not logically entail
that they ought to desire it.166 It also must be noted that in the end happiness and utility are
concepts with subjective interpretations and may have some intersections from the realms of
human sciences (the hormonal or body interactions or the human psychology which cause a
state of happiness). It is an "Axiomatic Stop" that states a descriptive claim about human
psychology (an "is") into a normative first principle (an "ought"), committing the very
Humean fallacy the secular project aims to avoid. Incidentally, Utilitarianism has been a
foundational axiom for the entire Law and Economics movement.167

2.6.1 The Naturalist Postulate: Hiding the Axiom in Materialism, Science and
Empiricism

The modern scientific advancement and emphasis on the visible have laid down a novel path
which essentially rejected the traditional philosophy and its understanding in the
epistemological realm. Even though materialism is a field in its own right, in a broader sense

162
See Bernard Williams, A Critique of Utilitarianism, in Utilitarianism: For and Against 77 (J.J.C. Smart &
Bernard Williams eds., 1973).
163
John Stuart Mill, Utilitarianism 10 (Sher grade ed., Hackett Publ'g 1979) (1861).
164
Id. at 34.
165
See Ursula Le Guin, The Ones Who Walk Away from Omelas, in The Wind's Twelve Quarters 275 (1975)
(allegorizing this utilitarian problem).
166
See Hume, supra note 58, at 469.
167
See Richard A. Posner, Economic Analysis of Law 25 (9th ed. 2014).

22
it could be construed as a part of metaphysical naturalism.168 The central claim of
metaphysical naturalism is that non-physical ingredients aren't needed to explain the world or
its attachments.169 And the critique of Naturalists is not solely directed at religious
supernatural ideas but also secular non-naturalist doctrines. This postulate is arguably the
most dominant "mystical foundation" of the modern academy, it derives its hegemonic power
not necessarily from the relience it places on the logical coherence, but from the prospect of
objective discovery. The ideology bundled with this Postulate often present it with having
parallel with modern scientific advancements, whatever, it has been a disruptive force in
modern human ideological discourses.170

In order to question the foundations of this postulate, we also ought to understand

“Methodological Naturalism”. Methodological Naturalism is essentially a philosophical basis
for science, which presupposes no supernatural agency when conducting experiments.171 This
is mostly a practical method, rather than making any ontological or epistemological claim,
even though it could be mostly called an epistemic tool. There is an argument that
metaphysical naturalism, especially with the new atheist movement, has been conflated with
methodological naturalism, and even without being an ontological naturalist somebody can
be a methodological naturalist. John Lennox points out conflating the understanding of
mechanism with agency is a category mistake.172

Logical Positivism, a school of thought prominent in the early 20th century, was very seminal
and has produced the most effort in cementing metaphysical naturalism.173 It has produced
the principle of verification which claims any statement that cannot be verified empirically is
"meaningless," not just true or false.174 However, the fundamental critique is that the
principle is “self-refuting”. The statement itself is incapable of being empirically verified.175
And it also must be understood that even though metaphysical naturalism was averse to a
priori, many necessary components of science (like the scientific method itself, laws of
nature, logical inquiry, and theoretical science) are essentially scientific priori.176 Moreover

168
See David Papineau, Philosophical Naturalism 3 (1993).
169
Id.
170
See Latour, supra note 148, at 24.
171
See Barbara Forrest, Methodological Naturalism and Philosophical Naturalism: Clarifying the Connection, 3
Philo 7, 7 (2000).
172
See John C. Lennox, God’s Undertaker: Has Science Buried God? 45 (2009).
173
See A.J. Ayer, Language, Truth and Logic 35 (1936).
174
Id.
175
See Alvin Plantinga, Warranted Christian Belief 213 (2000).
176
Id. at 215.

23
science in itself could be arguably neutral in concepts of ethics, justice. The debate over
Neanderthals is a perfect illustration. For instance, two groups of scientists can look at the
exact same data and reach diametrically opposed conclusions. One group, working from a
"Victorian-age idea of evolution-as-progress," can view them as primitives.177 Another group,
working from a different social premise, can view it as "our equal in humanity.”178

In the real-world scenario, the most fundamental critique of this movement comes from the
point that it can't ground its vision of Morality, good and bad, rights, and justice. Even though
it could explain realities, adopting it as a postulate could be problematic to the modern
arrangements, especially the “justice” central to a jurisprudential postulate, as it is not a
physical object to put under a microscope.179 A consistent materialist can only claim
objective morality is meaningless. If one radically construes naturalism to mean that
everything is reducible to "Earthly physicochemical processes”, the “Ship of Theseus” may
posit a different criticism: The "you" of ten years ago is a materially different person from the
"you" of today. This makes the concept of “enduring personal identity” and thus enduring
legal or moral responsibility, a "useful fiction" or an "illusion".180

The Is-Ought fallacy is more problematic for metaphysical naturalism; as for example if there
is an argument that humans have to cooperate with each other because it is empirically
observable that they are naturally social animals, this could be contradicted by rebutting that
it conflates the “is” with “ought”. Also G.E. Moore’s naturalistic fallacy is seminal in its
criticism.181 The famous example through "what is natural is good”, commits the naturalistic
fallacy, since it confuses the meaning of "good" with something else. As per this fallacy,
"good” and “natural” are two distinct semantic categories.182 Even though in popular
understanding it may have a parallel, the problem comes in, for instance, one could argue that
pain, disease, and death are also natural phenomena. The open question argument by G.E.
Moore is also a famous critique of metaphysical or ethical naturalism, which points out that
for instance, the claim of “good is pleasure” is not closed, but somebody can meaningfully
ask “Yes, but is that really good?”. He here rejects the tautology inherent in the “closed
question" that is a tautology.183 He then paves a way for non-naturalistic postulates that things

177
See Stephen Jay Gould, The Mismeasure of Man 30 (1981).
178
Id.
179
See C.S. Lewis, The Abolition of Man 15 (1943).
180
See Derek Parfit, Reasons and Persons 200 (1984).
181
Moore, supra note 161, at 10.
182
Id.
183
Id. at 15.

24
like “goodness” must be a unique, non-natural property that cannot be defined in terms of
natural properties.184 The non-naturalism obvious critique resides in its secular method of
identification of non-naturalistic postulates; fundamentally from the naturalistic point of view
it can't be verified, secondly it also faces issues of subjectivism, issue of motivation.

Altogether the “physical is all that exists” is the axiom of metaphysical naturalism. Even
though metaphysical naturalism is the underlying ontology, in practice many
contemporaneous movements which were more or less influenced by metaphysical
naturalism became popular among the mass, through the modern movements of scientific
humanism and new atheism.185 Modern movements are mostly concerned with the separation
of religion from state and public affairs and its criticism, with arguably minimal focus on the
underlying ontology, epistemology, and semantics.

2.6.2 The Skeptical, the Nihilist, and the Pragmatic Resolution

The Münchhausen Trilemma does not merely present an abstract philosophical problem to be
solved; it is rather designed to force every claim to bite any of three bullets.186 Albert, the
framer of the trilemma, essentially drew on Agrippa's Trilemma from classical scepticism.187
The systems analyzed thus far, theological, rationalist, naturalistic, have mostly fallen into the
dogmatic (or axiomatic Stop) admittedly (as in the Ash'arīte appeal to divine command) or
unwittingly. The three philosophical schools herein are not called in to showcase their choice
in three horns, but how do they portray their reaction to the trilemma itself, as consequences
or finding alternatives.

Scepticism in the ontological and epistemological can be understood in different ways, such
as philosophical scepticism, academic scepticism, or for more specifically moral
skepticism.188 The commonality of it all is its rejection of absolute certainty or definitive
knowledge. Pyrrhonian scepticism refuses to terminate the chain of justification at any of the
three horns, instead advocating for suspension of judgement itself.189 The sceptical view is
that since an ultimate justification is impossible, the answer is suspension.190 Even though

184
Id. at 17.
185
See Richard Dawkins, The God Delusion 31 (2006).
186
See Albert, supra note 16, at 16.
187
See Sextus Empiricus, Outlines of Scepticism 10 (Julia Annas & Jonathan Barnes eds., Cambridge Univ.
Press 2000).
188
See Barry Stroud, The Significance of Philosophical Scepticism 5 (1984).
189
See Sextus Empiricus, supra note 187, at 20.
190
Id.

25
moral scepticism is divided as moral error theory (or moral nihilism), epistemological moral
skepticism, and noncognitivism, it is all particularly opposed to moral realism which holds
there are knowable and objective moral truths. Its negation, especially in epistemology or
moral epistemology, is that knowledge of morality, justice, etc., is impossible.191

Nihilism is the conclusion or acceptance that no judgment can be grounded. For a nihilist, the
Münchhausen Trilemma is not something waiting to be solved, but definitive proof that all
claims to knowledge, morality, and justice are ultimately baseless.192 Nietzsche's
epistemology, Perspectivism, states that all knowledge is from a specific viewpoint.193 There
is no "god's-eye view" or single, objective truth accessible to everyone.

Pragmatism, in contrast to the above, offers a radical escape by not grounding at any a priori;
instead, it functions on the principle of “useful fiction”: more technically, if it serves a
practical utility or prevents undesirable consequences, then the beliefs are justified.194 from
this point of view that, it can be argued the trilemma is only a "problem" if one accepts the
"representationalist" or "correspondence" theory of truth.195 Pragmatism could be labeled a
form of positive nihilism, as it arguably arises from the skeptical view of the impossibility of
a perfectly justifiable axiom or postulate; instead, it's best to focus on what is useful. In other
words, the justification for a belief, a law, or a postulate is not found in its logical pedigree,
but in its utility, as its "cash-value in terms of experience.”196 It also needs to be addressed
that unlike all the other above, the axiomatic Stop in here is neither rational nor metaphysical,
it's rather sociological. This aligns precisely with H.L.A. Hart's Rule of Recognition, a "social
fact” which does not ask to be validated by a higher norm.197 It's a sidestepping of the
postulate debate, but essentially pragmatism may be faced by the same issues of
consequentialism or the inherent subjectivism (especially because it focuses on secondary
principles rather than recognized first principles) of what is useful or practical.198 Pragmatism
does something more radical than others by hiding the "mystical foundation of authority" in
plain sight, calling it "experience”.

191
See J.L. Mackie, Ethics: Inventing Right and Wrong 35 (1977).
192
See Nietzsche, supra note 105, at § 2
193
See Friedrich Nietzsche, On the Genealogy of Morals 119 (Walter Kaufmann trans., Vintage Books 1967)
(1887).
194
See William James, Pragmatism 40 (1907).
195
See Richard Rorty, Consequences of Pragmatism 160 (1982).
196
James, supra note 194, at 42.
197
Hart, supra note 3, at 100.
198
See Ronald Dworkin, Law’s Empire 150 (1986).

26
2.7 THE AESTHETICS OF AUTHORITY: OBSCURANTISM AND THE "GURU
EFFECT”

While the dissertation touched on "Epistemic Exploitation" and "Secular Concealment," it did
not explicitly dissect the "Aesthetics of Authority", the specific way vague, high-flown
language is used to exploit the insecurity of the listener.

The dominance of the Legal Postulate is not solely by force or logic, but also by a specific
aesthetic of "Profundity." The "dissonance" experienced by the Public Conscience is often
not a clash of arguments, but a clash of confidence.199 The Postulate could be more capable of
a presentation to create an Illusion of Depth.200 Its "Axiomatic Stops" are protected from
scrutiny by making them sound too complex for the layperson to question.

2.7.1 The "Guru Effect" and the Burden of Interpretation

Cognitive scientist Dan Sperber identifies the "Guru Effect" as a mechanism where the
“obscurity” of a statement increases the audience's perception of the speaker's authority.201
When an "authority" (a jurist, a philosopher, a critical theorist) speaks in high-flown, dense,
or vague language, the "inquisitive" listener (who is often prone to self-doubt) assumes the
fault lies in their own comprehension.202 Instead of asking, "Is this idea clear?" the listener
asks, "What am I missing?"

This "polished, formal presentation" serves a defensive evolutionary purpose for the
Postulate.203 As discussed in this chapter, all systems rest on unproven "Axiomatic Stops"
(First Principles). If these principles were stated in plain language (for example, in the
perspective of neoliberals, "We value property over people because it keeps order"), they
would be easily attacked.204 By Hiding the Polemic and wrapping the axiom in layers of
jargon, Latin maxims, or complex critical theory, the Postulate successfully passes a polemic
(an opinion) as a fact.205 This prevents the "Public Conscience" from asking "Questions on
First Principles." The layman is too busy trying to decipher the vocabulary to ever reach the

199
See Bourdieu, supra note 55, at 820.
200
See Harry G. Frankfurt, On Bullshit 12 (2005).
201
Dan Sperber, The Guru Effect, 2 Rev. Phil. Psych. 583, 585 (2010).
202
Id. at 586.
203
See Steven Pinker, The Sense of Style: The Thinking Person's Guide to Writing in the 21st Century 50
(2014) (discussing the "Curse of Knowledge" and academic obscurantism).
204
See George Orwell, Politics and the English Language, in 4 The Collected Essays, Journalism and Letters of
George Orwell 127 (Sonia Orwell & Ian Angus eds., 1968).
205
Id.

27
underlying assumption. The success of the system lies in this specific concealment; it makes
the "arbitrary" look "inevitable" by making it "incomprehensible."206

While the Dunning-Kruger effect is commonly understood as "incompetent people

overestimating their ability," the inverse is equally vital to hegemonic control: Imposter
Syndrome among the Competent.207 The "Conscience" often possesses a valid, intuitive
moral objection ("seeing-that"). However, when confronted with the "Rider’s" polished,
confident, and jargon-heavy "reasoning-why," the Conscience second-guesses itself.208 The
Postulate (or the ones in control) mostly exploits this asymmetry. It projects an absolute
confidence (even when its ideas are shaky) to trigger the "deference heuristic" in the
listener.209 The perceived 'depth' of the argument,from thir perspective, could be just the
weight of the speaker's unearned confidence.

2.8 CONCLUSION: THE UNAVOIDABLE AXIOM AND THE SECULAR

CONCEALMENT

This chapter began with an inquiry into the foundations of authority, specifically the
"invisible presuppositions" that govern public discourse and, by extension, the law. Using the
Münchhausen Trilemma was the primary tool employed against various systems of
authority.210

The crucial finding is that, unless they learn to embrace the Axiomatic Stop, they will
definitely fall into either infinite regress or circularity which are logical impossibilities or
tantamount to having not made a point at all.211 While obviously the Axiomatic Stop does
raise the problem of arbitrariness or disagreement, any claims ought to be arbitrary or will
cast disagreements.212 The choice is not whether to have a foundational postulate at all, but
which one to have and how to posture it.

This chapter’s comparative analysis made crucial findings:

206
See Bourdieu, supra note 55, at 825.
207
See Justin Kruger & David Dunning, Unskilled and Unaware of It: How Difficulties in Recognizing One's
Own Incompetence Lead to Inflated Self-Assessments, 77 J. Personality & Soc. Psych. 1121 (1999).
208
See Haidt, supra note 6, at 55.
209
See Stanley Milgram, Obedience to Authority: An Experimental View 4 (1974).
210
See Albert, supra note 16, at 16.
211
Id.
212
See MacIntyre, supra note 101, at 15.

28
 ● Theological and traditional postulates (whether Voluntarist, Rationalist, or Vedantic)
are defined by their epistemological honesty.213 They declare their "axiomatic stop",
be it the sovereign Will of God, the divine Intellect, or the eternal Dharma. Their
foundation, while "mystical" in the Derridean sense, openly acknowledge their
dogmatic nature (of being self-evident) and historically have been accused of such.214
● Secular-modernist postulates (whether Kantian, Utilitarian, or Naturalist) are, in
contrast, characterized by their epistemological concealment.215 They, too, are built
upon unproven axioms, the a priori force of the Categorical Imperative, the
tautological "desirability" of happiness, or the self-refuting verificationism of
materialism. Yet attempts are made to conceal their "mystical foundations" under
facades of objective and neutral "Reason" or "Science".216

The Legal Postulate is an outcome of a perfect illustration of this secular concealment. It

presents itself as a rational-legal machine, a system enriched by procedural or methodological
perfectionism by ingraining logical deduction and syllogistic reasoning.217 However, as
Gény's "fictional exegesis" and Derrida's "mystical foundation" argue, this is a facade against
the inevitabilities or the practicalities.218 The law's claim to authority is arguably a
"performative force" which hides or does not even fetch its epistemological or ontological
foundation, but mostly rests on its application of a form of coherentism.219

This then is the source of the modern epistemic crisis. The problem is not that the law or any
certain jurisprudential philosophy has an Axiomatic Stop but rather that it denies it.220 By
claiming an objective, rational superiority which it does not necessarily possess, the Legal
Postulate creates a fundamental dissonance with the society it governs.221 The primary
problem contained in this is the rational superiority complex may in turn prevent it from
being epistemically humble to know its limits. It may turn into a tool of reinforcement of
dominant hegemonic forces.

213
See Nasr, supra note 135, at 65.
214
See Derrida, supra note 19, at 943.
215
See Foucault, supra note 11, at 93.
216
Id.
217
See Weber, supra note 1, at 217.
218
See Gény, supra note 88.
219
See Butler, supra note 4, at 5.
220
See Derrida, supra note 19, at 925.
221
See Cover, supra note 18, at 40.

29
Having now deconstructed the first term of our dissertation's core conflict, the "Legal
Postulate", and identified it as a concealed axiom, we must turn to the second. What is the
epistemic nature of its counterpart, the "Public Conscience"? Is it, too, just another competing
axiom? Or does it operate on an entirely different epistemological framework, one that is
intuitive, affective, and communal?

The following chapter will explore this "Public Conscience," examining its structure and its
claims to knowledge. To perceive the nature of their dissonance and the resulting crisis of
legitimacy in the modern state, both have to face each other diametrically.

30
CHAPTER 3: THE PUBLIC CONSCIENCE: INTUITION,
LEGAL CONSCIOUSNESS, AND THE SUBALTERN VOICE

3.1 INTRODUCTION: AN EPISTEMOLOGY OF THE GOVERNED

If the "Legal Postulate," as defined in the previous chapter, is law's attempt to fetch an
axiomatic postulate by the assumption that it is the output of a rigorous methodological and
rational process. being a conceptual backdrop, it necessitate an existence of an antagonist.222
The necessary conceptual antagonist to be studied in here is the "Public Conscience". This
area is inherently fractured and contradictory. As this chapter will explore, the 'Public
Conscience' can manifest as a 'subaltern' voice seeking intuitive justice (Haidt, Spivak), but it
can just as easily manifest as a destructive mob (Staub) or a passive, 'bystander' mass (by
Latané & Darley).223 Its study, therefore, involves the intersections of multiple disciplines
such as anthropology, sociology, political science, cognitive psychology, and social
psychology.

This chapter will attempt to theoretically define the Public Conscience. Rather than focusing
on the subjective notions about what constitutes 'public opinion’ or the larger "sentiments”
which may be intrinsic to the public discourse, instead, the emphasis is given to establish a
distinct form of epistemology in its own right, along with some conceptual backdrop on the
process and methodology of collective reasoning and knowledge.224 Even though the attempt
here is meant to build an alternative epistemology from the collectivities, it does not
necessarily entail it has to be an intellectual or philosophical one. Rather the attempt will
focus by bringing various interdisciplinary intersections to understand how the consciousness
is formed and given a situation how it will act, which may also bring about the arguable
fallibilities and the larger biases ingrained in the public realm.225

To build this theoretical model, this chapter especially draws on five distinct disciplines:

● Anthropology: To establish the experiential framework of the Public Conscience

(how it encounters law).

222
See Kelsen, supra note 10, at 193.
223
See Staub, supra note 15, at 15; Abraham M. Rosenthal, Thirty-Eight Witnesses: The Kitty Genovese Case
25 (1964).
224
See Bourdieu, supra note 47, at 164.
225
See Daniel Kahneman, Thinking, Fast and Slow 20 (2011).

31
 ● Cognitive Psychology: To establish the intuitive mechanism of the Public
Conscience (how it thinks).
● Social Psychology: To establish the group dynamics and motivational forces (how it
acts).
● Legal Sociology: To establish the structural interaction between legal institutions and
social norms (how it resists law).
● Postcolonial Theory: To establish the political status of the Public Conscience (how
it is silenced).

Ultimately, this chapter attempts to find whether the "dissonance" this dissertation seeks to
map is an epistemic conflict between the law's rationalized Postulate and the public's
politically "subaltern" Conscience.

3.2 THE ANTHROPOLOGICAL FOUNDATION: CULTURE, CUSTOM, AND THE

LEX NON SCRIPTA

The Legal Postulate may define itself as a product of pure reason (lex scripta) while in
contrast, the Public Conscience defines itself as the product of culture (lex non scripta).226
The anthropological claims do establish a Conscience which is essentially not an unstable set
of opinions, but altogether forms a distinct epistemic system. A potentially ideal or
functioning epistemic system may entail a complete and coherent worldview rooted in shared
custom, tacit knowledge, and practice.227

A primary challenge that anthropology raises against the "Legal Postulate" is the radical
decentering of its claim to its version of universality.228 From a purely anthropological
perspective, the Postulate, with its formal institutions, written codes, and judiciary, is not seen
to be an abstract, inevitable, or naturally arised resulting from universally coherent and
rational methodologies, but rather a highly specific, culturally contingent, and historically
recent "folk system" that has successfully, through political power and hegemony, been
successful in universalizing its own claims.229 Anthropology obviously could be less
concerned about the underlying philosophy or ethical superiority of the succeeded systems.
But anthropological critique prevails in the colonial and post-colonial backdrop of modern

226
See Max Gluckman, The Judicial Process among the Barotse of Northern Rhodesia 230 (1955).
227
See Michael Polanyi, The Tacit Dimension 4 (1966).
228
See Peter Fitzpatrick, The Mythology of Modern Law 5 (1992).
229
See Clifford Geertz, Local Knowledge: Further Essays in Interpretive Anthropology 167 (1983).

32
synthesis which was arguably able to otherize multiple distinctive normative orderings and
may have undermined legal pluralism in the expense of homogenization of law.230
Altogether, the Postulate's monopoly is the result of a "deliberate axiomatic shift”, a
successful political-ideological project.

3.2.1 The Legal Pluralism

The Legal Postulate operates on an implicit assumption of sovereignty: it is the law or its
underlying rationale.231 The empirical reality, as established by legal anthropology, is that
this could be fallacious in terms of anthropological convictions. The social or cultural milieu
was always characterized by a high degree of normative pluralism.232 The epistemological
critique regarding “arbitrariness” and “disagreement,” oft applied to axiomatic claims, is
equally applicable to anthropology, by the empirical observations of distinct legal and social
milieus based on pluralized normative universes.

The Postulate's "rationality" from an anthropological point of view, could be argued that it is
a tool of jurisdiction.233 For the success of its attempt at homogenisation of law, it has to
invalidate the "other" legal orders by branding them as "irrational," "pre-modern," or "mere
custom".234 From the concept of the public consciousness and anthropological standpoint,
there is an argument as per Sally Falk Moore’s work on "semi-autonomous social fields,"
state law (the Postulate herein) is often a weaker force.235 It may be fundamentally incapable
of penetrating and controlling the self-regulating norms of the community.

If the "dissonance" this dissertation attempts to find can be constructed as per the
anthropological terms, it will be an epistemic problem which arises when the state's abstract
Postulate attempts to annex the territory of local law.236 The friction between the aim for
radical homogenisation and intolerance towards alternative normative orders are the central
causative factors to this dissonance.

The Fallacy of the "Stateless" Society

230
See Santos, supra note 8, at 136.
231
See John Austin, The Province of Jurisprudence Determined 157 (Wilfrid E. Rumble ed., Cambridge Univ.
Press 1995) (1832).
232
See John Griffiths, What Is Legal Pluralism?, 24 J. Legal Pluralism & Unofficial L. 1, 12 (1986).
233
See Peter Rush, The Power of Jurisdiction, 31 Melb. U. L. Rev. 309, 312 (2007)
234
See Michel Foucault, Madness and Civilization 250 (Richard Howard trans., 1965).
235
Sally Falk Moore, Law and Social Change: The Semi-Autonomous Social Field as an Appropriate Subject of
Study, 7 Law & Soc'y Rev. 719, 720 (1973).
236
See Cover, supra note 18, at 40.

33
The foundational critique of legal anthropology settled by figures like Bronisław Malinowski
in his work Crime and Custom in Savage Society, is the empirical destruction of the state-
centric definition of law.237 The state-centric definition of law which was pioneered in the
Austinian or Hobbesian worldview assumes law is the "command of the sovereign" or the
mechanism that saves humanity from a "brutish" state of nature.238

Malinowski’s work on the Trobriand Islanders showed anthropological analysis contradictory

to the Austinian view. He found complex, binding systems of order in a society without a
state, without courts, and without police.239 Even though a determinate sovereign postulate
was absent in such systems, a form of "bonds of reciprocity" persisted in such communities
which functioned on the premises of mutual obligations and other forms of communitarian
equilibrium.240 The ethnographic and anthropological studies consistently held that “the state
is necessary to create order from a condition of chaos (the status naturalis)” is historically
and empirically problematic, as there is a multitude of evidence suggesting otherwise. Much
historical evidence of such systems pre-exist the hegemony of the modern nation model.

The Debate of "Rational" Translation (The Bohannan-Gluckman Debate)

In the problem of this epistemic translation, the classic Bohannan-Gluckman debate provides
the academic framework for this conflict.241 Max Gluckman, whose views having parallel in
the Postulate's view, argued that its "rational" analytical categories (for instance the
"reasonable man") were sophisticated enough to be used universally to describe and
adjudicate any "barbarian" or local dispute.242

Paul Bohannan, in contrast, held that this was an act of profound intellectual colonialism.243
He argued that every culture has its own "folk system" of justice with its own internal
logic.244 The process of ripping a dispute from the Tiv (his ethnographic subjects) and
"translating" it into English common law concepts was not essentially discovering justice but
imposition of foreign one with the local ones. It must be understood that Gluckman’s view
was not exactly of a colonial project, but was concerned more with practical realities and the

237
Bronislaw Malinowski, Crime and Custom in Savage Society 10 (1926).
238
See Thomas Hobbes, Leviathan 84 (J.C.A. Gaskin ed., Oxford Univ. Press 1998) (1651).
239
Malinowski, supra note 237, at 25.
240
Id. at 40.
241
See Laura Nader, The Anthropological Study of Law, 67 Am. Anthropologist 3, 10 (1965).
242
Max Gluckman, The Ideas in Barotse Jurisprudence 8 (1965).
243
Paul Bohannan, Justice and Judgment among the Tiv 212 (1957).
244
Id,

34
usefulness of translation in comparative jurisprudence.245 Nevertheless, Bohannan’s view of
the inclusivity of legal anthropology is relevant to the modern debate surrounding the
homogenization of law.

The Fallacy of "Reason" vs. "Culture" (Geertz)

The Legal Postulate presupposes its product of "Reason" and while in Contra the Public
Conscience as illustrated by the examples of "Culture," "Custom," or "Sentiment."
Anthropology, particularly in the work of Clifford Geertz, critiques this presumed binary.246

In his essay Local Knowledge, Geertz argues that law is not a disembodied system of rational
rules.247 It is, like religion or art, a "cultural system," a way of "imagining the real”.248 The
"legal mind" is not more logical than the "public mind". It is simply another form of "local
knowledge" that "renders the world coherent" through its own specific metaphors, fictions
(like the "reasonable person"), and narratives.249 This concept has a parallel in the
Foucauldian discourses.

This slant reframes the question of what is the Legal Postulate. It is not a system of pure,
abstract logic as it may claim. In Geertz's slant, it is the local knowledge of the elite, the
specific "common sense" of a professional class (judges, lawyers, academics).250 The
"dissonance" this dissertation aims to explore is not elementarily a conflict between "Reason"
and "Unreason," but an epistemic clash between two competing local knowledge.
Recognition of the latter as a competing one in itself is a process of epistemic humility, which
this dissertation aims to tackle in the end.

The Fallacy of "Neutrality" (The Comaroffs)

The Postulate claims to be a neutral arbiter of social conflict.251 Having parallel in Gramscian
doctrine, anthropologists like Jean and John Comaroff find that law in fact can be a perfect
instrument of cultural hegemony.252 The epistemological structure of Euro-modernist law is

245
See Max Gluckman, Concepts in the Comparative Study of Tribal Law, in Law in Culture and Society 349
(Laura Nader ed., 1969).
246
Geertz, supra note 229, at 167.
247
Id. at 184.
248
Id.
249
Id. at 170.
250
Id.
251
See Hart, supra note 3, at 200.
252
Jean Comaroff & John Comaroff, Of Revelation and Revolution: Christianity, Colonialism, and
Consciousness in South Africa 25 (1991).

35
why, Comaroff argues, anthropology is often viewed as "anti-relevant" to the core of legal
studies in Euro-America.253 This lack of impact stems from the positivist, universalist nature
of the social sciences, which views anthropology's critical gesture of "estrangement" and
relativism as mere "interesting curiosities”.254

In their work on colonialism in South Africa, Comaroff suggests "colonization of

consciousness”.255 By imposing its own definitions of property, personhood, time, and
contract, the colonial Legal Postulate engaged in the "colonization of consciousness." It made
its own, highly particular, and power-laden assumptions appear to be "natural," "apolitical,"
and "inevitable”.256 Jean and John Comaroff suggest the Afro-modern jurisprudence was
more inclusive of customary law.

Altogether, this is the contentious part of the Legal Postulate. It can be a political project that
works by "naturalizing" its own axioms and delegitimizing all others.257 It is the "reasoning-
why" that justifies its own power by systematically defining the Conscience's "seeing-that" as
the "unreasonable”.

3.3 THE SOCIOLOGICAL FOUNDATION: LAW AS POWER AND PRACTICE

If anthropology decenters the Legal Postulate's claim to universality, sociology exposes its
claim to neutrality as a sophisticated fiction.258 From a sociological perspective, the Postulate
is not a transcendent system of objective rules, but a contingent social field.259 Law and
corresponding jurisprudence are fundamentally inseparable from the power, class, and social
conflicts it claims to merely "arbitrate”.260 Most sociological schools and their later
descendants were more pragmatic about the essence beyond the legal postulate. The
sociological understanding does contradict the Postulate's self-image as a neutral referee,
instead largely influenced by the dominant socio-cultural pretext of the developments in law.

3.3.1 The Fallacy of the "Law in Books" (Pound)

253
Id.
254
Id. at 15.
255
Id. at 4.
256
Id.
257
See Bourdieu, supra note 47, at 168.
258
See Roger Cotterrell, The Sociology of Law: An Introduction 5 (1992).
259
See Bourdieu, supra note 55, at 814.
260
See Marx and Engels on Law 40 (Maureen Cain & Alan Hunt eds., 1979).

36
The most foundational "gotcha" of legal sociology, famously brought forward by Roscoe
Pound, is the empirical gap between the "law in the books" and the "law in action."261 The
Legal Postulate, in its obsession with its own doctrinal purity, is exclusively concerned with
the "law in the books", which in essence are its codes, judgments, and rationales.

Sociology, however, points out the utopian idealism of this self-conception, which may
ignore the actual ground realities.262 It demonstrates there exists a vast gap between the
Postulate's claims (for instance, "equal justice under law") and its outcomes (for instance,
differential sentencing by race and class). This "gap" is not an elementarily curable error, as
the Postulate may claim. It is the central, defining feature of the legal system, revealing the
Postulate's "reasoning-why" as a detached, often irrelevant, narrative.263

3.3.2 Marxian critique against the notion of "Neutrality" (Marx & Conflict Theory)

Conflict theory provides the critical motive for the "gap" mentioned herein.264 The Postulate
is not designably neutral, nor is it a flawed-but-noble attempt at justice. It is, as William
Chambliss finds in his study of vagrancy laws, an instrument of class power.265

The Postulate's "rational" language of "public order", in a “conflict” perspective, can be a

facade as per Chambliss.266 Chambliss' asserts that these laws were not essentially "rational"
responses to "crime," but were redeployed to force peasants into the labor market after the
Black Death and, centuries later, to control the movement of "undesirables" who threatened
industrial property.267

This is the central Marxian development of conflict sociology. The Legal Postulate is the
antagonist of the Public Conscience, at least for the subaltern classes.268 The motive of such
legal postulates is not to deliver uniform justice, but to protect the interests of the dominant
class.269 Its neutrality can be an intellectual sleight-of-hand.

3.3.3 The Fallacy of "Reason" as Justice (Weber)

261
Roscoe Pound, Law in Books and Law in Action, 44 Am. L. Rev. 12, 15 (1910).
262
Id. at 20.
263
See David Nelken, The "Gap Problem" in the Sociology of Law: A Theoretical Review, 1 Windsor Y.B.
Access to Just. 35, 37 (1981).
264
See Randall Collins, Conflict Sociology 45 (1975).
265
William J. Chambliss, A Sociological Analysis of the Law of Vagrancy, 12 Soc. Probs. 67, 70 (1964).
266
Id.
267
Id.
268
See Gramsci, supra note 48, at 246.
269
Id.

37
Max Weber arguably offers a more structural critique than the Marxian perspective which
altogether negates the legal postulate. He agrees with the Postulate's self-description as
"rational," nevertheless, he argues this is precisely its problem.270 The modern Legal
Postulate is the ultimate expression of domination of "formal-rational" against the co-existing
postulates or systems.271 It is "formal" because its rules are internally coherent and applied
"without regard to persons" (in other words, impersonal). It is "rational" because it is a
calculable, predictable system which is in contrast to the "irrationality" of magic or local
custom (the concept of Conscience herein).272

This "rationality" creates what Weber called the "iron cage”.273 The Postulate, by design, is
divorced from "substantive justice". That is, justice based on values, empathy, or moral
intuition (the "seeing-that" logic of the Conscience).274

The Postulate cannot hear the Conscience, not because it is intrinsically biased (which is
obviously the Marxist view), but because it is impersonal. It is a “machine” designed to apply
its own code. When the Public Conscience or any elements demands for "substantive"
fairness, the Postulate’s reply is its impersonal "formal" procedure. This isn't patently a
failure of the system, it is its perfect functioning.275 The dissonance is the "rational"
Postulate's outcome which is intended, logical, and detached from the social realities.

3.3.4 The Fallacy of Law as "Object" (Foucault)

Post-structural sociology, particularly the work of Michel Foucault, presents the most
contemporaneous critique. The Postulate is not merely a "tool" of power (Marx) or an "iron
cage" (Weber), instead, it is a “discourse of power” that produces reality.276

The Legal Postulate is not an "object" that the Public Conscience "encounters". Rather, the
Postulate's "reasoning-why" is a "disciplinary" technology that creates the very categories by

270
See Weber, supra note 1, at 215.
271
Id. at 217.
272
Id,
273
Max Weber, The Protestant Ethic and the Spirit of Capitalism 181 (Talcott Parsons trans., 1958).
274
See Weber, supra note 1, at 811
275
Id,
276
Michel Foucault, Discipline and Punish: The Birth of the Prison 23 (Alan Sheridan trans., Vintage Books
1977) (1975).

38
which the Conscience is judged.277 It invents the "delinquent," the "insane," the "irrational,"
and the "subaltern" by defining its "rational" opposite.278

The Postulate's "failure" to hear the Conscience is not a failure at all. It is its productive
power. By silencing the Conscience as "irrational," the Postulate simultaneously creates the
"irrational" subject and re-establishes its own exclusive claim to "Reason."279 From this
perspective, the dissonance is not exactly a by-product of the whole conflict; it is the entire
point of the Postulate's existence.

3.4 THE POLITICAL FOUNDATION: LAW AS SOVEREIGN MASK

If sociology critiques the Legal Postulate's neutrality as a fiction (the argument that it
conceals underlying social power relations), political science goes into its very mechanism.280
Its critique project positions itself against the legal postulate’s claim to "Reason" as the
sophisticated, "apolitical" façade of raw and sovereign power. From this perspective, the
Postulate is not an alternative to political power, but its most effective technology.281 This
critique questions the Postulate's most fundamental claim that it has transcended mere politics
(so far as political science is concerned).

3.4.1 The Fallacy of the "Rule of Law" vs. "Sovereignty" (Schmitt)

The Legal Postulate's foundational identity is built on a Hobbesian premise: it is the "Rule of
Law" that saves society from the "state of nature," which is otherwise a state of arbitrary,
violent, and "irrational" will (a state, in this dissertation’s terms, of a lawless Public
Conscience).282 The Postulate is the contract that ends arbitrary rule.

The "argument" of political theorist Carl Schmitt is to critique this as the Postulate's
foundational lie. Schmitt argues that the true sovereign is not the law, but the one who
suspends it, which was popularized from his famous remark of "Sovereign is he who decides
on the exception.283

277
Id. at 184.
278
Id.
279
Id. at 190.
280
See Steven Lukes, Power: A Radical View 20 (2d ed. 2005).
281
See Carl Schmitt, The Concept of the Political 26 (George Schwab trans., Univ. of Chi. Press 1996) (1932).
282
Hobbes, supra note 238, at 84.
283
Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty 5 (George Schwab trans.,
MIT Press 1985) (1922).

39
The "state of exception" (a war, a financial crisis, a pandemic, or a "moral panic" fueled by
the Conscience) is the moment the Postulate's mask of "Reason" is dropped.284 As per this
theory, in that moment, the executive (the true sovereign) suspends the "reasoning-why" of
the law to act decisively.285 This framework constructs a political claim that the Legal
Postulate was never the master of power, in terms of concrete reality, it was merely its
servant during times of "normality." The Postulate is a fair-weather tool, and the "exception"
indicates that its ultimate foundation is not Reason, but the very sovereign, arbitrary Will it
claims to have replaced.286 In this viewpoint, with a parallel reading from the Austinian or
Hobbesian premise, the rule of sovereign may be the postulate which holds the actual ground
power.

3.4.2 The Fallacy of "Legitimacy" vs. "Hegemony" (Gramsci)

The Postulate claims that its "reasoning-why" process creates political legitimacy. It argues
that a decision is "just" because it follows a rational, public, and neutral methodology.287

Antonio Gramsci provides the critical counter-argument: this is not necessarily legitimacy, it
is elseways hegemony.288 The Legal Postulate is the primary "apparatus of cultural
hegemony" for the modern state.289 Its function, as per Gramscian terms, is to manufacture
consent by making the political values of the ruling class appear to be the "natural,"
"rational," and "common sense" values of all.290

The Postulate is the "inner press secretary" (to borrow Haidt's term) for the State. It translates
the "seeing-that" intuitions of the subaltern Public Conscience (for instance, "this system is
unfair") into its own "reasoning-why" language (for instance, "you have no legal 'standing' to
make that claim") and, in doing so, invalidates the claim.291 It is, simply put, an act of
political expedient that obscures its underlying political allusion.

3.4.3 The Fallacy of the "Apolitical" (Schmitt & Agamben)

284
Id. at 13.
285
Id.
286
Id. at 12.
287
See Jürgen Habermas, Legitimation Crisis 98 (Thomas McCarthy trans., 1975).
288
Gramsci, supra note 268, at 246.
289
Gramsci, supra note 268, at 246.
290
Id. at 260.
291
See Haidt, supra note 6, at 55.

40
The Postulate's most potent claim is that it is apolitical, a neutral "System 2" (reason)
operating above the "System 1" (intuition) dissimilar to the Public Conscience.292

This, as Schmitt argues, is the most overpowering political move of all. The very act of
defining "rational" (the Postulate) and "irrational" (the Conscience) is the foundational friend-
enemy distinction that constitutes the political.293 By defining itself as the sole arbiter of
Reason (and a force to homogenize the laws for the larger good of its servants), the Postulate
treats the Public Conscience not as a debating partner or a necessary party for dialogue, but as
an "enemy" of order or an "irrational" force to be managed, silenced, or "civilized."294

Giorgio Agamben is seminal in dissecting this process. When the Public Conscience is
defined as "irrational," it has already been cast out of the realm of political "Citizenship" and
reduced to "bare life" (zoē).295 It is no longer treated as a subject with a workable voice, but
an object to be administered.296 The Postulate then becomes a biopolitical tool, a "palliative"
technology (as Byung-Chul Han would argue) for managing the "sentiments" of the
population, rather than engaging with its "Conscience."297 The Postulate's "reasoning-why"
becomes the language by which the state administers, medicalizes, and silences the "seeing-
that" of the public or the segment of the public.298 To summarise, Conscience can be
governed but never heard.

3.4.4 The Political Economy of Compliance: Opportunistic Alignment and the

Conditioned Populace

The framework of systemic iatrogenesis and internal fracturing can be scaled from the
marginalized group to the level of the entire body politic.299 The colloquial lexicon of the
'grifter' can be applied here to assess a notion of deviancy, a rational actor of opportunistic
alignment. A proposition can be introduced to appreciate this scenario that "grifters based on
the balance of convenience". This is also a core observation of the contemporaneous political
economy. The actors will, to varying degrees, align themselves with a dominant power

292
See Kahneman, supra note 225, at 20.
293
Schmitt, supra note 281, at 26.
294
Id.
295
Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life 8 (Daniel Heller-Roazen trans., Stanford
Univ. Press 1998).
296
Id.
297
Byung-Chul Han, The Palliative Society: Pain Today 10 (2021).
298
Id.
299
See Ivan Illich, Medical Nemesis: The Expropriation of Health 30 (1976) (defining iatrogenesis).

41
structure so long as the perceived benefits of compliance (convenience) outweigh the costs of
resistance (inconvenience).300

This dynamic provides the rationale for the thesis that a public can be trained or molded (not
always to be objectively rational). This "training" is the process of hegemony (Gramsci,
1971), if we are construing this thesis from the terms of "carrot and stick" metaphor, whereby
a ruling class or a state apparatus, along with the coercion (the "stick") and manufactures
active, "spontaneous" consent (the "carrot").301 The “carrot” is manipulated here to be seen as
affirmative and voluntary rather than coerced, without being technically incentive as a carrot
intended to be. The state achieves this by managing the balance of convenience so skillfully
that alignment becomes the most rational, and even desirable choice for the majority, and for
minority possibly compromises.302

A. The 'Social Contract' as Managed Convenience: The Case of Non-Rebellion

The "Chinese example," can be brought here to explain the practicality of relative social
stability and a conspicuous lack of mass-organized rebellion. China is a powerful case study
to understand this mechanism.303 It is not that the populace is essentially ignorant or
inherently docile, but that the state has successfully engineered and maintained a socio-
economic "bargain" that favors mass alignment.304 This doesn't mean the transactions were
entirely consensual, also the intersection of state-owned capitalism, in China, also enters into
the picture. The question of whether the abdication of the dissent could also be better
explained through the inherent atomization process of capitalism, which isolates the
individual and precludes the possibility of mass collective formation.305

This "Authoritarian Bargain", in theory, can be understood as a novel form of social contract
to be understood from the developments of modernity’s project (The state tacitly promises)
such as unprecedented economic mobility, national glory in the global level, technological
advancement, and mostly a predictable (at least relatively) social order.306 In exchange, the
populace tacitly agrees to abdicate political pluralism and refrain from organized dissent.

300
See Timur Kuran, Private Truths, Public Lies: The Social Consequences of Preference Falsification 5 (1995).
301
See Gramsci, supra note 48, at 260.
302
See Susan L. Shirk, China: Fragile Superpower 5 (2007).
303
See Perry Anderson, Two Revolutions, 61 New Left Rev. 59, 70 (2010).
304
See David Shambaugh, China's Future 10 (2016).
305
See Ulrich Beck & Elisabeth Beck-Gernsheim, Individualization 2 (2002).
306
See Francis Fukuyama, The End of History and the Last Man 204 (1992).

42
Manufacturing the "Convenience" (The Carrot): The state's primary focus becomes the
relentless assurance of material prosperity and national pride.307 The success in this assurance
becomes the "kernel of truth" for its legitimacy. It creates a vast class of stakeholders, from
the tech entrepreneur and the urban middle-class family to the nationalist academic, whose
personal fortunes/career are directly tied to the system's stability and success. So the
stakeholders, also to keep in mind that stakeholders are highly individualized, are forced to
concede to the state’s stability.

Manufacturing the "Inconvenience" (The Stick): The cost of non-compliance is made

explicitly high.308 Mechanisms like the social credit system, mass digital surveillance, and
punitive economic exclusion do not only punish all the potential rebellion, they create a
powerful disincentive for even associating with "non-ideal" (dissenting) citizens. The
inconvenience here blocks any aspirations of dissent among larger society. The society is
trained or molded to consider state as an entity outside of the scope of dissent or aggressions.

The Rise of the "Rational Grifter": This "balance of convenience", formed in the process,
produces a form of rational grifter (also can be called an opportunistic aligner) on a mass
scale.309 When an individual's "convenience", their career, their family's access to good
schools, their social status, is contingent upon performing alignment, they will do so (Being
rational in an individual sense, does not necessarily mean to be able to revolt and be a rebel.
A highly rational person may use calculus to weigh the potential benefits against the
consequences, and chooses what’s best for him and his relatives). This is instrumental
rationality.310 The "grift" is the performance of patriotic loyalty. This in design is
performative as if the balance of convenience tilts to other places they may jump to the other
sides. Most of these may grifters prefer survival in exchange for access to the system's
benefits.

B. The Trained Public as Agents of Lateral Violence

307
See Shirk, supra note 302, at 30.
308
See Shoshana Zuboff, The Age of Surveillance Capitalism 350 (2019).
309
See Kuran, supra note 300, at 10.
310
See Max Horkheimer, Eclipse of Reason 5 (1947).

43
This "trained" populace then completes the hegemonic circle. Just as the "respectable"
members of a marginalized group "threw under the bus" their "non-ideal" peers, this aligned
public performs the same function against dissenters.311

The dissenter, for example a human rights lawyer, journalist or a critical artist, may be
framed as the ultimate "non-ideal citizen." The characterization may not be merely they are
just wrong but they are "chaotic," "foreign-influenced" "unpatriotic," and, most damningly, a
threat to the “convenience” of the majority.312

The "trained public conscience" acting here as "ideal witnesses" for the state's legitimacy,
then engages in mass lateral violence. This could be identified in online nationalist mobs,
social shunning, and public denunciations. The system no longer needs to be the sole agent of
its own defense; its "trained" and "convenienced" populace, acting as rational grifters to
protect their own stake, becomes its most enthusiastic enforcers.313 This is the ultimate
success of a system built on a managed "balance of convenience". The public has been
successfully "trained" to manufacture its own consent and police its own dissent.

3.5 THE COGNITIVE FOUNDATION: INTUITION OVER REASON

The most fundamental critique of the public consciousness is its individual’s or collective’s
cognitive conditioning.314 The modern Legal Postulate, as Gény observed, is a system of
"reasoning-why", it is obsessed with its justificatory process.315 The Public Conscience, in
contrast, operates primarily on a logic of "seeing-that".316

The work of seminal psychologist Jonathan Haidt provides a definitive cognitive mechanism
for this Conscience.317 Haidt describes the mind as a "rider on an elephant". The rider
indicates conscious and strategic reasoning with effort (the assumed logic of the Postulate),
while the elephant represents the other 99 percent of mental processes, including gut feelings,
intuitions, and passions.318 Haidt's central finding, and the first principle of his moral
psychology, is that "intuitions come first, strategic (or rational) reasoning comes second".

311
See Frantz Fanon, The Wretched of the Earth 52 (Constance Farrington trans., 1963) (discussing native
violence).
312
See Jan-Werner Müller, What Is Populism? 25 (2016).
313
Id,
314
See Haidt, supra note 6, at 32.
315
See Gény, supra note 88.
316
See Haidt, supra note 6, at 55.
317
Id.
318
Id. at 52.

44
The elephant (intuition) leans first, and the rider (reason) follows, its primary job being to act
as an "inner press secretary" or "lawyer" to justify the elephant's pre-ordained judgment.319

The Public Conscience in general is this elephant. It is a "System 1" process: fast, automatic,
and emotional.320 This explains the phenomenon Haidt terms "moral dumbfounding", the
"stubborn and puzzled maintenance of a judgment without supporting reasons".321 In his
studies, participants presented with harmless taboo violations (like consensual incest or
private flag desecration) would immediately state the act was wrong ("seeing-that").
However, when pressed for reasons, that is, when asked to use the logic of the Legal
Postulate (which in Western societies is primarily a harm principle), they were "rendered
speechless". They could not find a victim, but their elephant did not change its mind. They
were left to say, "I know it’s wrong, but I just can’t find a reason why". This does have larger
parallels in the meta-ethical theory of emotivism, where moral judgments are not statements
of fact, but merely expressions of the speaker’s emotional attitude toward a subject
(essentially, 'Hooray' for this, or 'Boo' to that).322

This is the cognitive root of the legitimacy crisis. The Legal Postulate demands a "reasoning-
why," but the “intuitive Public Conscience” knows via "seeing-that." When the Postulate's
rational logic (for example "no harm, no foul") may contradict with the Conscience's intuitive
logic (for example, "it's degrading" or "it's disrespectful"), the abstract Postulate invalidates
the Conscience's judgment as "irrational”.323 But it also must be addressed that, even though
the Postulate deemed to be impersonal, even in liberal states that ostensibly champion the
harm principle (especially the countries who have legalized the previously taboo issues such
as homosexuality, abortion), numerous harmless violations (particularly the examples given
by Haidt's) are still illegal.

3.5.1 The Epistemic Vulnerability: Heuristics, Credulity, and the Truth-Default

While Haidt’s "elephant" explains the source of moral intuition, it does not fully account for
the Public Conscience's deepest vulnerability to manipulation. A critical "logical dissection"
will identify that the Conscience has a massive tendency to "take things at face value" and it

319
Id. at 60.
320
See Kahneman, supra note 225, at 20.
321
See Jonathan Haidt, The Emotional Dog and Its Rational Tail: A Social Intuitionist Approach to Moral
Judgment, 108 Psych. Rev. 814, 817 (2001).
322
See A.J. Ayer, Language, Truth and Logic 107 (1936).
323
Haidt, supra note 6, at 120.

45
is not merely a lack of intelligence, but a structural feature of human cognition known as
Epistemic Credulity (also with the intersections of cognitive and social biases).324 This
feature is then largely or systematically exploited by the ones who are required to
manufacture consent.

A. The Mechanism: The Cognitive Miser and Truth-Default

The Conscience operates primarily as a "Cognitive Miser", as illustrated by Fiske &

Taylor.325 Engaging in critical, skepticism-based analysis ("System 2" thinking) is
metabolically expensive and slow (for an individual prioritizing a hedonic calculus, minimal
intellectual struggle offers greater peace, while avoiding the material consequences). To
navigate a complex social world, the Public Conscience falls to Heuristics (mental shortcuts
that prioritize efficiency over accuracy).326

The Truth-Default Theory (TDT) by Levine is central to this equation.327 The public is
largely (at least in social evolution) conditioned to presume that communication is honest
until proven otherwise.328 This "presumption of veracity" is the baseline state of the
Conscience. It does not by default fact-check any Postulate’s claims of "neutrality" or
"justice" because its cognitive architecture is designed to accept the "face value" of authority
to maintain social coordination (or to maintain the pre-existing cognitive or social biases).329

B. The Exploitation: Epistemic Hijacking

A Postulate can weaponize this cognitive aspect. This process can be better termed as
Epistemic Exploitation.330 It occurs when a dominant epistemic agent (the State/Law) relies
on the subaltern’s default trust to pass off complex, ideological constructs as simple, natural
facts.

● The Illusion of Validity: By wrapping arbitrary decisions in the “aesthetics” of ritual,

high language, and procedure, the Postulate triggers the Authority Bias.331 The
Conscience, seeing the symbols of competence (triggers could be the overall

324
See Levine, supra note 40, at 15.
325
Susan T. Fiske & Shelley E. Taylor, Social Cognition 13 (2d ed. 1991).
326
Id.
327
Levine, supra note 324.
328
Id. at 20.
329
Id,
330
See Miranda Fricker, Epistemic Injustice: Power and the Ethics of Knowing 1 (2007).
331
See Robert B. Cialdini, Influence: The Psychology of Persuasion 208 (rev. ed. 2007).

46
 aesthetics, such as non-laymanish terminology presented or the charisma of authority
figures), may use the heuristic: "It looks official, therefore it must be true”.332
● Legitimation by Procedure (Luhmann): As Niklas Luhmann argues, the public
does not accept the content of a legal decision (which they often do not read or may
not understand fully), they accept the procedure.333 A Postulate can exploit this by
creating highly visible, and quite complex (or may be sophisticated or obscure)
procedures that serve as a "cognitive theater”.334 The Conscience takes the
performance of justice at face value, assuming that because the ritual was performed,
the outcome is just (here the procedure could be termed as a form of secular “ritual”,
such as in a theocentric nation the procedure from the “laws of God” are seen as a
necessary ritual and if completed there is no blame and the public is satisfied).
● Symbolic Violence (Bourdieu): This is considered to be a form of deepest
exploitation. The Postulate imposes its own specific logic (rationalism, individualism)
as the "universal common sense" (this is not impugn the larger laws of logic such as
“principles of non-contradiction, but in the modernity's culture there is a tendency to
tag logic and reason to the things which are essentially not derived from the first
principles).335 The Conscience, taking this at face value, misrecognizes its own
oppression as "natural". When the subaltern accepts that they "have no standing" or
that their intuition is "irrational," they are (in essence) complicit in their own silencing
because they have accepted or have not negated the Postulate’s definitions as the
default reality.336

C. The Outcome: Manufactured Consent

The result is a "trained" credulity. The Public Conscience is structurally discouraged from
exercising Epistemic Vigilance.337 When the law presents a "fictional exegesis", claiming a
political decision was a “neutral deduction” (in perfect logical and rational syllogism), the
Conscience, acting as a cognitive miser, accepts the fiction. This is not considered as an

332
Id.
333
Niklas Luhmann, Legitimation durch Verfahren [Legitimation by Procedure] 25 (1969).
334
Id.
335
See Pierre Bourdieu, Language and Symbolic Power 167 (John B. Thompson ed., Gino Raymond & Matthew
Adamson trans., 1991).
336
Id. at 170.
337
See Dan Sperber et al., Epistemic Vigilance, 25 Mind & Language 359, 360 (2010).

47
accidental or incidental flaw of the system, it is a design feature of hegemony.338 The stability
of the Legal Postulate depends entirely on the Public Conscience remaining in this "default"
mode, accepting what constitutes the limits and access.

D. The Limit-Case of the Postulate: Peter Singer

What happens when the liberal Postulate is applied with perfect, rational consistency, free
from any so-called "contamination" by the Public Conscience’s cognitive fluctuations? The
philosopher Peter Singer’s theories were held controversial albeit his views were seen
consistent with the postulate he believes in such as of his realist and Utilitarian postulates.339
Singer's work, which he developed from a secular, hedonistic utilitarianism, arguably a
consistent application of his utilitarian postulates.340

Singer's Postulate is a simple, axiomatic one that aims to maximize interests and pleasure,
minimize suffering, and apply this with "equal consideration of interests" to all sentient
beings.341 This single axiom leads him to conclusions that create the most extreme dissonance
with the Public Conscience. He argues that:

● Speciesism (privileging humans) is an irrational prejudice.342 While many of the

underlying social mechanisms and even law are based on human exceptionalism or
anthropocentrism.
● A newborn infant, lacking rationality and self-awareness, is not a "person" and has no
right to life.343 Therefore, infanticide for severely disabled newborns is morally
permissible, and possibly less wrong than killing some non-human animals.344
● The traditional axiom of "sanctity of life" doctrine is "outdated, unscientific, and
irrelevant".345
● He was also has controversial views on the bestiality and incest (which in his
perspective could be potentially harmless one in relative to such as eating the meat,
which he sees tantamount to cannibalism).346

338
See Gramsci, supra note 48, at 260.
339
See Peter Singer, Practical Ethics 10 (3d ed. 2011).
340
Id. at 12.
341
Id. at 20.
342
Id. at 48.
343
Id. at 150.
344
Id. at 160.
345
See Peter Singer, Rethinking Life and Death: The Collapse of Our Traditional Ethics 85 (1994).

48
The existing controversy over these conclusions is an illustration of Public Conscience (based
on Haidt's Sanctity and Care foundations) in a state of heightened "moral dumbfounding". It
majorly concedes Singer is wrong, but may not be able to defeat him on his own rationalist
terms.347 To argue, "it's just wrong," is to invoke the very intuitive epistemology ("disgust")
that the Postulate ("reason") has already disqualified.348 The general backlash over Singer's
works and opinions opens up the debate, is the liberal postulate a "mystical foundation,
ungrounded axiom that, when followed with the utmost adherence to logical consistency,
may override the community's most deeply held intuitions?.349

3.6 THE SOCIAL-PSYCHOLOGICAL ENGINE: FRUSTRATED NEEDS AND

SCAPEGOATING

If the Public Conscience can become a destructive mob, it is necessary to first ask why. What
is the motive force that agitates the "elephant" (intuition) on a mass scale? Cognitive
psychology may provide the explanation for the mechanism, but social psychology may
better provide the materials to understand the motive.350 The conscience does not necessarily
turn hostile in a vacuum (or with zero reason). It is arguably "activated" when its fundamental
needs are threatened or they have been “informed are threatened”, whether the threat is direct
and genuine, or perceived through the manipulation of social dynamics.351

The work of seminal social psychologist Ervin Staub provides a foundational model to
understand the dynamics. Staub posits that humans share fundamental, non-negotiable needs:
security, positive identity, effectiveness, connection, and a 'usable' comprehension of
reality.352 In stable times, these needs are met. But in "difficult life conditions", such as
severe economic problems, political conflict, or rapid social change, these needs are
frustrated on a mass scale.353

This is where the “destructive Public Conscience” begins its destructive turn. The "difficult
life conditions" are often the result of realistic group conflict theory, which sets forth that
intergroup tension, prejudice, and conflict arise from the competition for scarce resources.354

346
See Peter Singer, Heavy Petting, Nerve (2001).
347
See Haidt, supra note 321, at 817.
348
Id.
349
See Bernard Williams, Ethics and the Limits of Philosophy 100 (1985).
350
See Staub, supra note 15, at 15.
351
Id. at 32.
352
Id. at 34.
353
Id.
354
See Muzafer Sherif et al., Intergroup Conflict and Cooperation: The Robbers Cave Experiment 10 (1961).

49
When a society feels its economic security is collapsing or feels in danger, its sense of control
is lost, and its comprehension of reality could be shattered. Even its basic needs are seriously
threatened.355

Unable to solve the complex, abstract, or structural source of its frustration (obviously
nobody can expect the public to assess the contexts by employing academic and sophisticated
calculuses and critical/skeptical thinking to solve the underlying frustrations), the Public
Conscience rather seeks a simpler, more concrete target.356 It turns to scapegoatting, the
scapegoat theory explains how prejudice can be caused by the individual's general tendency
to blame their negative experiences on their counterparts (this is also crucial in individual
daily life psychology).357 The scapegoat, probably a devalued or often marginalized group, is
blamed for the "difficult life conditions” faced by the conscience.358

This act of scapegoating, which is otherwise destructive, is a psychologically effective way to

"fulfill" the frustrated basic needs:

● It fulfills the need for "comprehension of reality": It provides a simple, "usable"

answer for why things are bad (for example, "The economy is failing because of
them").359
● It fulfills the need for "effectiveness" and "control": It puts forward a concrete
"enemy" to act against, and lends a sense of agency.360
● It fulfills the need for "positive identity" and "connection": To scapegoat an
"outgroup," the conscience must first build its "ingroup." It does this through
ethnocentrism (the tendency to "glorify one's own group") and ingroup bias (giving
"preferential treatment" to one's own).361 This creates a powerful, positive sense of "we"
(connection) who are morally superior (identity) to the "them" (the scapegoat).362

This social-psychological mechanism and the frustration of basic needs, which are ignited by
realistic conflict and resultantly channeled into scapegoating, is what provides the volatile
and motivational premise for the Public Conscience to be destructive. It explains why Haidt's

355
See Donald T. Campbell, Ethnocentric and Other Altruistic Motives, in Nebraska Symposium on Motivation
283 (D. Levine ed., 1965).
356
See Staub, supra note 15, at 45.
357
See Gordon W. Allport, The Nature of Prejudice 244 (1954).
358
See René Girard, The Scapegoat 12 (Yvonne Freccero trans., Johns Hopkins Univ. Press 1986).
359
See Staub, supra note 15, at 48
360
Id.
361
See William G. Sumner, Folkways 13 (1906).
362
See Henri Tajfel, Social Psychology of Intergroup Relations, 33 Ann. Rev. Psych. 1, 2 (1982).

50
intuitive "elephant" is so often ready to stampede.

3.6.1 The Cognitive Levers of Group Identity: Bias and Motivated Reasoning

If Haidt's "elephant" (intuition) explains the individual's “seeing-that logic,” we must next ask
how these individual elephants are networked into a collective. To derive the answer it's
necessary to oversee the settled cognitive and social-psychological biases that form the basis
of group dynamics.

A. The Master Bias: In-Group/Out-Group Bias

The single most powerful organizer of the Public Conscience is In-Group/Out-Group Bias.363
Drawing on Social Identity Theory, this is the deeply ingrained human tendency to divide the
world into "us" (the in-group) and "them" (the out-group).364 It is a binary of In-Group
Favoritism, in which is the psychological predisposition to treat members of our in-group
with trust, empathy, and cooperation.365 Conversely, Out-Group Derogation predisposes
individuals to view out-groups with suspicion, fear, and moral contempt.366 This bias is the
psychological prerequisite for the "scapegoating" which has earlier been discussed by Staub.
Before a group can be blamed, it must first be cognitively defined as a "them."

B. The Partisan Tools: Confirmation and Disconfirmation Bias

If the in-group/out-group split is the framework, the next set of biases are the tools for
maintaining it. Haidt's "inner press secretary" does not work in a vacuum, instead it works
through active distortion.367

Confirmation bias is the well-known tendency to actively seek out, favor, and recall
information that confirms one's pre-existing beliefs (or more aptly the beliefs of the in-
group).368 If the "Conscience" believes an out-group is a threat, it will selectively consume

363
See Henri Tajfel & John C. Turner, The Social Identity Theory of Intergroup Behavior, in Psychology of
Intergroup Relations 7 (Stephen Worchel & William G. Austin eds., 2d ed. 1986).
364
Id.
365
See Marilynn B. Brewer, The Psychology of Prejudice: Ingroup Love and Outgroup Hate?, 55 J. Soc. Issues
429, 430 (1999).
366
Id.
367
See Haidt, supra note 6, at 82.
368
See Raymond S. Nickerson, Confirmation Bias: A Ubiquitous Phenomenon in Many Guises, 2 Rev. Gen.
Psych. 175, 175 (1998).

51
media and anecdotes that validate this belief, creating a self-reinforcing echo chamber (where
the Conscience is confined).369 Disconfirmation bias (also called Motivated Reasoning) is the
opposite of confirmation bias and arguably more powerful (also being a post hoc tendency,
can oft result in detrimental to others).370 It is the higher tendency to be intensely critical of,
and expend significant energy to debunk, any information that contradicts one's or In-Group’s
pre-existing beliefs.371 The "rider" (Reason) herein becomes a hyper-vigilant lawyer (the
lawyer example serves the purpose because the lawyer serves the best interests of his clients
rather than the truth) cross-examining any fact that threatens the "elephant's" (Intuition) core
identity.372

Confirmation bias is a notorious flaw in the implementation of the "Legal Postulate" itself.373
Consider the case of a wrongful conviction. Police and prosecutors may form an early
hypothesis about a suspect. They then fall victim to confirmation bias, looking only for
evidence that proves their theory.374 Simultaneously, they also may engage in disconfirmation
bias, by ignoring or discrediting exculpatory evidence (like a solid alibi) because it
contradicts their "in-group" hypothesis. This dynamic, as seen in globally contentious cases
like that of the Central Park Five (US) or the Fred van der Vyver case (South Africa), is a
perfect example of the "reasoning-why" Postulate being contradicted by the "seeing-that"
biases it claims or ought to escape.375

C. The Collective Engine: Group Polarization and Groupthink

When these biased individuals come together, the "public" bias is not just an average of their
individual biases; it is amplified into a larger one. In regards to Group Polarization, this is the
phenomenon where a group of like-minded people will, after discussion, arrive at a more
extreme version of their initial position than any individual held.376 The "Conscience" as a
group is more radical than the individuals within it. The shared confirmation biases create a
feedback loop that pushes the entire group's "elephant" further in one direction.377

369
See Cass R. Sunstein, [Link] 2.0, at 55 (2007).
370
See Ziva Kunda, The Case for Motivated Reasoning, 108 Psych. Bull. 480, 482 (1990).
371
Id.
372
See Haidt, supra note 6, at 88.
373
See Keith A. Findley & Michael S. Scott, The Multiple Dimensions of Tunnel Vision in Criminal Cases, 2006
Wis. L. Rev. 291, 292 (2006).
374
Id. at 307.
375
See Antony Altbeker, Fruit of a Poisoned Tree: A True Story of Murder and the Miscarriage of Justice 15
(2010).
376
See Cass R. Sunstein, Going to Extremes: How Like Minds Unite and Divide 2 (2009).
377
Id.

52
Groupthink, particularly in terms of Irving Janis, is the dynamic that drives the "emergent
norm" we have already addressed.378 In a highly cohesive in-group, the desire for consensus
and harmony overrides the capacity for critical thinking.379 Individuals will self-censor
(silence their own "rider") to avoid disagreeing with the group's direction (This self-
censorship fosters a herd mentality leads many to be following herd mentality). This allows a
"Conscience" to move toward a destructive "conscience", not because everyone "rationally"
agrees or consents, but because the group dynamic makes disagreement a form of “social-
identity-threatening deviance”.380

3.6.2 Contagion and Emergent Norms

The above-discussed post-hoc justification is the source of the Conscience's moral power or
sense of justice, but it is also its structural vulnerability. Mob psychology mechanisms further
help us to understand how the agitation transforms into a functioning mob.381

The early mob psychology (for example, Le Bon) rested on the hypothesis of a 'group mind',
a "contagious" irrationality that supposedly subsumed individuals.382 The modern case can be
precisely the opposite, such that the mob does not function by creating a new mind, but by
systematically and successfully silencing the rational "rider" (System 2) in every individual,
leaving only the "elephants" (System 1) to network directly.383 This transformation follows
mostly a predictable, logical progression.

A. The 'Elephant' as Mob: The Continuum of Destruction

A mob does not spontaneously appear. It evolves, as Staub argues, through a "Continuum of
Destruction."384 This is a cognitive-behavioral process of "learning by doing." What begins as
a minor, intuitive prejudice (Haidt's "elephant" leaning) is acted upon. That action, even a
"milder" one like verbal scapegoating, changes the individual.385 It normalizes the prejudice,
devalues the victim, and makes the next, more extreme step (including physical violence)

378
See Irving L. Janis, Victims of Groupthink: A Psychological Study of Foreign-Policy Decisions and Fiascoes
9 (1972).
379
See Irving L. Janis, Victims of Groupthink: A Psychological Study of Foreign-Policy Decisions and Fiascoes
9 (1972).
380
See Michael A. Hogg & Dominic Abrams, Social Identifications: A Social Psychology of Intergroup
Relations 150 (1988).
381
See Gustave Le Bon, The Crowd: A Study of the Popular Mind 25 (1896).
382
Id. at 27.
383
See Philip Zimbardo, The Lucifer Effect: Understanding How Good People Turn Evil 295 (2007).
384
Staub, supra note 350, at 17.
385
Id.

53
cognitively and morally "easier."386
This continuum is accelerated by three distinct, well-defined cognitive processes:

● Contagion: This is the transmission vector for the intuitive elephant. Best defined as the
'rapid spread of affect or behavior from one crowd participant to another,' contagion is
essentially System 1 going viral.387 It bypasses the slow, critical "rider" entirely. One
person's intuitive flash of anger or fear is "seen" by the elephants of those nearby, which
lean in unison. This is the "seeing-that" logic operating at scale and at speed, creating a
rapid, exponential alignment of emotional-moral states.
● Deindividuation: This is the cognitive state that results. Deindividuation is a "loss of
self-awareness" and, most precisely, a "reduction of inner restraints."388 This is not a
"loss of mind" but rather the structural shutdown of the "rider." Anonymity and group
submersion silence the individual's "System 2" faculties, their capacity for self-criticism,
rational analysis, and adherence to future-tense consequences (or otherwise the
incentives, relative to the context).389 The individual, now cognitively
disarmed/vulnerable, is existentially reduced to a pure "System 1" actor, fully present-
tense and hyper-responsive to the immediate cues of the group.390
● Emergent-Norm Theory: This is the organizing principle that gives the mob its
terrifying logic. The mob is not simply chaotic; it also possesses an instantaneous
normative order. In a state of deindividuation, the state's external Legal Postulate
("reasoning-why") and the individual's internal "rider" are both gone. Into this formed
vacuum, a new, temporal, and intuitive "Postulate" rushes. Emergent-norm theory
explains that the mob's uniformity "is caused by members' conformity to unique
standards of behavior that develop spontaneously”.391 This "emergent norm" (examples
may include, "we are the true justice," "property damage is righteous speech") is
established via contagion and instantly adopted by the deindividuated members. The
mob, therefore, is not necessarily or fully "irrational” in the abstract sense. It otherwise
can be construed as hyper-rational but only within the scope of its own, self-generated,
and internally coherent "seeing-that" logic.392 The "elephant" has become its own rider,

386
Id.
387
See Ralph H. Turner & Lewis M. Killian, Collective Behavior 55 (3d ed. 1987).
388
See Zimbardo, supra note 383, at 300.
389
Id.
390
See Ed Diener, Deindividuation: The Absence of Self-Awareness and Self-Regulation in Group Members, in
Psychology of Group Influence 209 (Paul B. Paulus ed., 1980).
391
See Turner & Killian, supra note 387, at 75.
392
See Clifford Geertz, Ideology as a Cultural System, in The Interpretation of Cultures 193 (1973).

54
 and the law of the herd is the only law that exists.

3.6.3 The Posture of Passivity: The Bystander Conscience

The most discussed failure of the Public Conscience is often not in its active resistance but its
active inaction. Staub's work on "evil" argues that passivity is not a neutral state; it is a form
of action that "encourages perpetrators" and validates their actions.393

This is the bystander effect in large, the "tendency for people to help less when they know
others are present."394 The classic case of Kitty Genovese, where 38 neighbors "did nothing,
not even call the police" as she was murdered, is considered as a perfect parable for the
Bystander Conscience.395

The primary psychological mechanism for this paralysis is the diffusion of responsibility.396
In a group (or a society), the moral obligation to act is "a lessening of responsibility
experienced by individuals." The burden of "doing something" is shared by so many that it is
felt by no one.397 This is compounded by a confusion of responsibility, the "general
tendency” for bystanders preventing themselves from helping is to not be blamed by others
for being the cause of the problem. It is cognitively "safer" to do nothing. This sociological
posture, the "Bystander Conscience", is a state of moral abdication, made possible by its
distributed nature.398

3.6.4 Cognitive Justifications for Passivity: 'Just-World' Fallibility

How does the Public Conscience remain passive in the face of obvious injustice without
shattering its own self-image as "good"? It does so by adopting a powerful cognitive
justification.

The most potent of these is the just-world fallibility. This is the deep-seated, non-rational
cognitive need to believe that the world is an orderly and just place where "people usually get
what they deserve”.399

When the Conscience (as a bystander) witnesses innocent suffering (for example, a victim of

393
See Staub, supra note 15, at 75.
394
See John M. Darley & Bibb Latané, Bystander Intervention in Emergencies: Diffusion of Responsibility, 8 J.
Personality & Soc. Psych. 377, 377 (1968).
395
See Abraham M. Rosenthal, Thirty-Eight Witnesses: The Kitty Genovese Case 25 (1964).
396
Darley & Latané, supra note 394, at 378.
397
Id.
398
See Stanley Cohen, States of Denial: Knowing About Atrocities and Suffering 15 (2001).
399
See Melvin J. Lerner, The Belief in a Just World: A Fundamental Delusion 10 (1980).

55
a flawed legal ruling or systemic oppression), it creates a cognitive dissonance for them. The
"just-world" belief is threatened. To resolve this dissonance and maintain its "usable
comprehension of reality" (Staub's basic need), the Conscience does not reject its passivity; it
devalues the victim.400 It is cognitively biased toward "victim-blaming," concluding the
victim must have "earned their suffering by their actions or character."401

This cognitive justification for passivity finds its ultimate cultural expression in what Byung-
Chul Han terms the "palliative society."402 The "Last Man" of this society is the ultimate
passive bystander, an entity for whom comfort and the avoidance of pain (he wanted to be in
a safe zone with no blame) are higher values than freedom or justice for others.403

This is the perfect sinister intersection of the Postulate and the Conscience. The Public
Conscience, in its passive, "just-world" state, wants to do nothing. The Legal Postulate then
provides the rational, "reasoning-why" language to justify that inaction. As Staub noted in the
case of Rwanda, the U.S. and other nations "avoided the use of the term ‘genocide’"; Why?
Because acknowledging the intuitive fact of the massacre "would have had a moral obligation
to act."404 The Legal Postulate (herein the diplomatic language) was used to enforce and
intellectually arm the willed passivity of the Public Conscience.

3.7 THE TECHNOCRATIC BRIDGE: PROPAGANDA AND THE ENGINEERING

OF CONSENT

If the "Legal Postulate" is the hidden machinery of authority, and possibly the "Public
Conscience" is the volatile fuel of intuition (of masses and also the controlling agents of the
people who designs and maintains the Postulate), then Propaganda is the transmission
system.405 It is the specific technology used to translate the Postulate’s abstract "Reason" into
the Conscience’s visceral "Emotion,". In the Haidtian terms, this ensures that the "elephant"
walks the path the "rider" desires.406

The general academic consensus is that propaganda cannot be viewed in reductionist

perspectives of "lying" or "deception”. Rather, as Jacques Ellul defines it, it is a sociological

400
See Staub, supra note 15, at 48.
401
See Lerner, supra note 399, at 15.
402
See Byung-Chul Han, The Palliative Society: Pain Today 1 (2021).
403
Id.
404
See Samantha Power, "A Problem from Hell": America and the Age of Genocide 365 (2002).
405
See Jacques Ellul, Propaganda: The Formation of Men's Attitudes 10 (Konrad Kellen & Jean Lerner trans.,
Vintage Books 1973) (1965).
406
See Haidt, supra note 6, at 52.

56
phenomenon, a "comprehensive system of explanation" that creates a "second reality" for the
public.407 It makes the Legal Postulate appear not only legitimate but inevitable (or the public
accept this is for the best, it also makes the public guiltless and have the feeling that their
ideal ideology is accepted into the mechanism of the Postulate).408

3.7.1 The Invisible Government: Bernays and the 'Conscious Manipulation'

The foundational premise of “modern propaganda”, as articulated by Edward Bernays, is that

the "Public Conscience" is incapable of governing itself.409 In his 1928 work Propaganda,
Bernays argues that the "conscious and intelligent manipulation of the organized habits and
opinions of the masses" is the duty of an "Invisible Government" (the elite custodians of the
Legal Postulate).410

Bernays creates the epistemic justification for the manipulation, in terms of Haidt’s
"elephant":

● The Problem: The complexity of modern society renders the "Public Conscience"
overwhelmed. The public suffers from "psychological clutter."411
● The Solution: The Postulate must "regiment the public mind, just as an army regiments
the bodies of its soldiers."412
● The Method: By associating the Postulate’s desires (for example, a new war, a new
economic policy) with the Conscience’s deepest subconscious instincts (sex, security,
values, herd belonging), the "Invisible Government" manufactures a "Synthetic
Consensus."413

This validates the "dissonance" instrumentalized in this dissertation; in the perspective of

propaganda outlined here, the Legal Postulate does not engage the Public Conscience in
rational debate (which would be rather democratic), it engineers the Conscience to align with
the Postulate’s pre-determined conclusion.414

3.7.2 Jacques Ellul and 'Sociological Propaganda'

407
Ellul, supra note 405, at 15.
408
Id.
409
See Edward Bernays, Propaganda 9 (1928).
410
Id.
411
Id. at 15.
412
Id.
413
Id. at 25.
414
See Noam Chomsky, Media Control: The Spectacular Achievements of Propaganda 15 (2d ed. 2002).

57
While Bernays describes the intent, Jacques Ellul describes the environment of the thriving of
propaganda. In his seminal work Propaganda: The Formation of Men's Attitudes, Ellul
challenges the notion that propaganda is merely a set of "political lies" told by dictators. He
introduces the concept of "Sociological Propaganda" (or Integration Propaganda).415 This is a
diffuse, pervasive force, "the penetration of an ideology by means of its sociological context."
It acts as the immune system of the Legal Postulate.416

Before a specific political message can work, the Public Conscience must be "conditioned"
by education, cinema, and literature to accept the fundamental myths (or the assumptions) of
the Postulate.417

Ellul makes the argument that the modern individual needs propaganda. The Public
Conscience, alienated by the complexity of the modern world (Staub’s "frustrated need for
comprehension"), craves for a "total explanation” (this can also be read from the larger
postmodern concept of hyper-reality or Desensitization).418 Propaganda satisfies this need by
providing a simple, coherent narrative that explains everything, who the hero is (The State),
who the villain is (The Other), and what must be done.419 From this perspective, the Legal
Postulate doesn't just force its rules on the people; it uses propaganda to provide the
psychological solution that the fractured Public Conscience desperately wants (this to be read
from the larger cognitive and social biases of Conscience).

3.7.3 Jason Stanley and the 'Flawed Ideology'

In the contemporary context, philosopher Jason Stanley’s How Propaganda Works provides
the mechanism for how this destroys Epistemic Humility.420 Stanley focuses on how
propaganda exploits "Flawed Ideologies”.

A "flawed ideology" is a belief system that is immune to rational revision because it has
connected a descriptive fact to a normative identity.421 The Legal Postulate uses "At-Issue"
content (for example “welfare reform") to trigger "Not-At-Issue" content (for example racial
stereotypes or the "work ethic" myth). When the Postulate frames a policy through the lens of

415
Ellul, supra note 405, at 62.
416
Id.
417
Id. at 30.
418
See Jean Baudrillard, Simulacra and Simulation 10 (Sheila Faria Glaser trans., Univ. of Mich. Press 1994)
(1981).
419
Ellul, supra note 405, at 150.
420
See Jason Stanley, How Propaganda Works 5 (2015).
421
Id. at 15.

58
a "flawed ideology" (for example "We are protecting Law and Order"), it makes it
epistemically impossible for the Public Conscience to empathize with the victims of that
policy. To question the policy would be to question the "Law and Order" in itself.422

Stanley argues that this shuts down the "deliberative democracy." The Postulate uses words
like "Freedom," "Justice," or "Security," but it drains them of their conventional meaning and
fills them with a specific, hegemonic content.423 The Public Conscience nods along to the
sound of the words ("seeing-that"), unaware that the meaning ("reasoning-why") has been
inverted (once the assumptions are penetrated, in later scenarios it will become more and
more difficult to question the assumptions, unless called for being treasonous).

3.7.4 Computational Propaganda: The Algorithmic Reinforcement

Finally, the modern era introduces Computational Propaganda, which was identified by
Woolley & Howard.424 The "In-Group/Out-Group" biases can also be found in the
Algorithmic realms.

● The Filter Bubble: Algorithms, designed to maximize engagement (Haidt’s "elephant"

stimulation), automatically (or in design) segregate the Public Conscience into
hermetically sealed "epistemic tribes”.425
● Micro-Targeting: The Postulate (or its political operators) can now fragment its
message. It can whisper one "Axiomatic Stop" to the religious conservative and a
completely different "Axiomatic Stop" to the secular liberal, ensuring that they never
meet in a shared reality.426 This essentially creates an echo chamber effect and increased
political polarization, all while there is no mechanism to have a shared platform for the
diverse segments to sit at a table and talk out their conflicts and to find compromises and
consensus.427

The existence of this "Propaganda Machinery" expresses a cynical nature for the Postulate (or
even legal Postulate). It claims to derive its authority from the "Consent of the Governed"
(Locke). However, from propaganda discourses it can be viewed that consent is not given by

422
Id. at 180
423
Id. at 190.
424
See Samuel C. Woolley & Philip N. Howard, Computational Propaganda: Political Parties, Politicians, and
Political Manipulation on Social Media 5 (2018).
425
See Eli Pariser, The Filter Bubble: What the Internet Is Hiding from You 10 (2011).
426
See Woolley & Howard, supra note 424, at 15.
427
See Cass R. Sunstein, #Republic: Divided Democracy in the Age of Social Media 65 (2017).

59
a free Public Conscience instead it is manufactured by the Postulate itself.428 The Postulate
creates the very "Public Opinion" it claims to obey.429

3.7.5 The Trojan Horse Mechanism: Ideological Bundling and the Halo Effect

The manipulation of the Public Conscience is rarely achieved by selling a complex political
worldview in its entirety. Instead, it relies on a cognitive vulnerability known as Ideological
Bundling, facilitated by the Halo Effect (intersection from cognitive psychology).430 This
mechanism explains how the Legal Postulate (or a political elite) co-opts the "seeing-that"
intuition of the masses to secure consent for a "reasoning-why" agenda that is often unrelated
or even detrimental to them (in laymen's perspective many of the contemporaneous
discourses, they may be in default ignorance except to be heard from their ideal leaders).431

The "Hook" and the Halo Effect

The process begins with a single, highly emotive point of agreement, which can be called the
"Hook" for convenience. This is usually an issue of "Sanctity" or "Identity" (Haidt) that
triggers a fierce intuitive response from the Conscience (for example from a traditional point
of view, defense of traditional family architecture and its artifacts or protection of religious
symbols).432
Once a leader or movement signals alignment on this one "sacred" issue, the Conscience
applies the Halo Effect (Thorndike).433 The "appeal" of this single agreement extends to the
entire person. The leader is not just seen as "right on traditional values", they are perceived as
"holistic," "wise," and "trustworthy”.434

The Conscience, operating on "humility" or "trust," assumes that because the leader shares
their moral intuition (also must be understood that the said leader may be able to sound more
logical or profound than the layman, in their eyes (layman may believe in a certain concept,
but may have no idea how to rationalize it, in contra in the eyes of layman the leader is expert
to do so)), they must also possess the correct technical knowledge and expertise of

428
See Edward S. Herman & Noam Chomsky, Manufacturing Consent: The Political Economy of the Mass
Media 30 (1988).
429
Id.
430
See Philip E. Converse, The Nature of Belief Systems in Mass Publics, in Ideology and Discontent 206
(David E. Apter ed., 1964).
431
Id.
432
See Haidt, supra note 6, at 150.
433
See Edward L. Thorndike, A Constant Error in Psychological Ratings, 4 J. Applied Psych. 25, 25 (1920).
434
Id.

60
understanding.435 The follower thinks: the possible notion would be mostly like: “He defends
my faith and destroys opponents with utmost reason, therefore, his views on economics,
foreign policy, and taxation must also be righteous, even if I don't understand them”.

The "Bundle": Smuggling the Agenda

This trust allows for Ideological Bundling. The elite package the "Hook" (the intuitive value)
with a "Bundle" of unrelated, often sophisticated political/economic concepts (the policy).436
● The American Conservative Paradigm: This is most vividly illustrated in the
American political landscape. The "Hook" is the anti-abortion or anti-LGBT agenda,
which secures the loyalty of the religious working class. The "Bundle," however,
includes deregulation, anti-socialism, and tax cuts for the wealthy, policies that arguably
contradict the economic interests of that very same working class.437
● The Homogenization of Belief: The Public Conscience, having accepted the "Bundle"
out of loyalty to the "Hook," eventually adopts the entire package as a singular identity.
The resulting partisanship creates an Artificial Homogeneity; millions of people hold
identical, interconnected beliefs on disparate topics (God, guns, and capital gains tax)
not because they have independently reasoned through each, but because they purchased
the "Package Deal" of the ideal leader.438

The Passive Acceptance of the "Unknown"

Crucially, this mechanism relies on the Conscience’s lack of ideas regarding the "Bundle."
The average congregant may have no strong opinion on "Keynesian vs. Hayekian
economics." Into this void, the Leader inserts their preferred (or the ones part of their agenda
which otherwise would have not been supported by the masses) policy.439 The Conscience
accepts it not through active agreement, but through associative passivity. The "anti-socialist"
stance is accepted simply because it arrived in the same container as the "pro-life" stance.

3.8 THE SOCIOLOGICAL FOUNDATION: LEGAL CONSCIOUSNESS AND ITS

FAILURES

If the previous sections provided the motive (social psychology) and cognitive (psychology)

435
See Robert B. Cialdini, Influence: The Psychology of Persuasion 208 (rev. ed. 2007).
436
See Converse, supra note 430, at 215.
437
See Thomas Frank, What's the Matter with Kansas? How Conservatives Won the Heart of America 15
(2004).
438
Id.
439
See Converse, supra note 430, at 240.

61
mechanisms of the Public Conscience, this section explores its sociological dimension. How
does this intuitive, often volatile, Conscience actually encounter the Legal Postulate in daily
life?

Sociologists Patricia Ewick and Susan Silbey's foundational "legal consciousness" study, The
Common Place of Law, provides the elementary framework to further the discourse.440 They
map the "moral-legal worlds" of ordinary people, finding that the Public Conscience is not
monolithic. Instead, it adopts three distinct (and often contradictory) postures, or "schemas,"
toward the law (the Legal Postulate). These schemas could be perfectly cast onto this
dissertation's model of Resonance, Dissonance, and Engagement:

● "Before the Law" (Resonance): In this posture, the Conscience sees the law as a
majestic, objective, and remote system of rational rules. This is the posture of resonance,
where the populace accepts the "fictional exegesis" of the Legal Postulate as a "mystical
foundation," impartial and god-like.441
● "With the Law" (Engagement): Here, the Conscience sees the law as a game to be
played and manipulated. People "play the rules" and use the law's own logic for their
own ends. This is a savvy, cynical engagement, recognizing the Postulate not as truth but
as a tool to be exploited or to be adapted.442
● "Against the Law" (Dissonance): In this schema, the Conscience experiences the law
as an oppressive, arbitrary, and powerful force to be resisted.443 This is the posture of
pure dissonance, where the lived, intuitive morality of the community clashes directly
with the formal logic of the state.

Ewick and Silbey's work is essential, but it focuses on active postures. Staub's work on
bystanders reveals a fourth, and perhaps more common and insidious, sociological posture:
passivity.

3.8.1 The Internal Contradiction: A Fractured Conscience

A central challenge to this dissertation's model is the variable nature of the Public Conscience
itself. It is not always a force for intuitive justice (Haidt), nor is it always a destructive mob
(Staub) or a passive bystander. How can it be all of these things?

440
See Patricia Ewick & Susan S. Silbey, The Common Place of Law: Stories from Everyday Life 15 (1998).
441
Id. at 45.
442
Id. at 47.
443
Id. at 48.

62
The answer is that the "Public Conscience" is not a monolithic entity. It is a site of internal
contradiction, a fractured epistemology. The work of Hoffman provides a critical distinction
between two different types of "internal" moral orientations that co-exist, often uneasily,
within the public:

● The Humanistic-flexible Conscience: This is the empathy-based, "seeing-that"

intuition described by Haidt. Its primary moral concern is harm; it is mindful about how
your behavior affects others.444 This is the part of the Conscience that can be a
"subaltern" voice, intuitively recognizing the injustice of a Postulate that is rationally (at
least in the performative sense) "correct" but experientially cruel.
● The Conventional-rigid Conscience: This part of the Conscience is not concerned with
flexible empathy but with "adherence to tradition/conventions or other societal norms"
and the "maintenance of societal rules".445 This "Conventional-rigid" Conscience is not
driven by Haidt's intuition but by the normative social influence of the orderings which
exist diversely in different communities. These are affirmed as powerful interpersonal
mechanisms that cause individuals to act in ways that are consistent and coherent with
the social norms, standards, and conventions of their relevant communities.446 This part
of the Conscience is mostly obsessed with injunctive norms ("how people should act,
feel, and think").447

This fracture explains the Conscience's deep political ambiguity. It is not always the
antagonist of the Legal Postulate.

● When the Legal Postulate causes harm, the Humanistic Conscience is activated
(Dissonance).
● But when the Legal Postulate enforces a social norm (for example, punishing "deviant"
behavior), the Conventional Conscience can become its most powerful ally
(Resonance).448

This split also provides a more precise explanation for the "Passive Bystander". The
bystander's paralysis is a cognitive failure where the descriptive norm (the "seeing-that"
observation of "what people are typically doing," which is doing nothing) overpowers the

444
See Martin L. Hoffman, Empathy and Moral Development: Implications for Caring and Justice 50 (2000).
445
See Elliot Turiel, The Culture of Morality: Social Development, Context, and Conflict 10 (2002).
446
See Robert B. Cialdini & Melanie R. Trost, Social Influence: Social Norms, Conformity and Compliance, in
2 The Handbook of Social Psychology 151 (Daniel T. Gilbert et al. eds., 4th ed. 1998).
447
Id.
448
See Staub, supra note 15, at 20.

63
injunctive norm (the "reasoning-why" belief of "what people should do," which is to help).449
The Conscience can be frozen to be caught between its two internal logics.

Staub's work provides a mechanism for this fallibility: goodness as a practice. The
"Humanistic-flexible" Conscience is not a static, inherent state. It is a capacity that must be
"learned by doing." Just as "evil" is a "continuum of destruction", goodness is a continuum of
construction.450 His research shows that guiding people to "engage in behavior that benefits
others" makes them "later more likely to be helpful."451 The skeptical implication is that the
Public Conscience is not inherently "good." Its goodness is a capacity that must be actively
practiced. If it is not, or if it succumbs to passivity (the Bystander), just-world fallibility, or
the rigid conformity of its "conventional" side, its humanistic, empathetic capacity does fail.

3.8.2 The Architecture of Systemic Pathogenesis: From Prejudicial Policy to

Manufactured Consent

This analysis dissects the mechanics of systemic pathogenesis, a phenomenon where a policy
intervention which in itself is premised on prejudice, does not help to solve the cases but to
exacerbate the very social issues it intends to treat.452 Such an intervention, could be for
convenience to be termed here as the "Prejudicial Intervention", is not only could be
ineffective but also could be an active and hostile agent of harm.453 Its failure is not an
accidental byproduct but a logical consequence of its epistemically compromised foundation.
This process unfolds in a predictable, multi-stage feedback loop: (1) an initial epistemic
failure rooted in the "ideal victim" fallacy; (2) the reification of prejudice by seizing upon a
"kernel of truth"; (3) the manufacturing of deviance via a self-fulfilling prophecy; and (4) the
fracturing of the target community, which ultimately provides the intervention with its most
potent, internalized justification.

A. Epistemic Failure: The 'Ideal Victim' Fallacy and Testimonial Injustice

The Prejudicial Intervention is, from its inception, designed not for complex human realities
but for a simplified, prejudiced caricature. This is most evident in its reliance on what
criminologist Nils Christie (1986) termed the "ideal victim."454 The ideal victim is a societal

449
See Cialdini & Trost, supra note 446, at 160.
450
See Staub, supra note 15, at 25.
451
Id.
452
See Ivan Illich, Medical Nemesis: The Expropriation of Health 30 (1976).
453
Id.
454
See Nils Christie, The Ideal Victim, in From Crime Policy to Victim Policy 17, 18 (Ezzat A. Fattah ed.,
1986).

64
construct: weak, blameless, respectable, and victimized by a "big, bad" offender in a
"stranger-danger" model.455 Legal systems, bureaucracies, and media narratives are implicitly
structured to serve this stereotype.456

The vast majority of real victims, however, are "non-ideal." They may be traumatized,
leading to inconsistent or "chaotic" testimony, they may be angry and uncooperative or they
may be "implicated" in marginal activities or have complex relationships with their
aggressors.457 The aggressor may be well dressed and gentlemanish which may appease the
popular psychology, while the victim may be chaotic per se.

This dissonance between the policy's "ideal" subject and the "non-ideal" reality may cause
injustice to the victims, for example the case of testimonial injustice, a concept articulated by
philosopher Miranda Fricker (2007), occurs when prejudice causes a hearer, in this case, the
institutional "Act" itself, to assign a deflated level of credibility to a speaker's word.458 A
traumatized, "chaotic" victim fitting a prejudiced stereotype is deemed inherently unreliable.
The system thus fails them, not necessarily due to their claim lacking veracity, but because
they fail to perform victimhood in the "correct," disciplined manner as the society expects
them to be.459

B. Reification of Prejudice: The 'Kernel of Truth' as Policy Foundation

The durability of the prejudice that informs the intervention stems from its pseudo-rational
mechanism. As Allport (1954) noted, stereotypes often function by isolating a "kernel of
truth," an observable, most often statistically verifiable difference (which also could be the
result of prior systemic oppression) and then engaging in two fallacies.460
● Overgeneralization: The "kernel" is exaggerated and applied universally to all
members of the group.
● Essentialism: The observed behavior is attributed to the group's immutable, inherent
nature, rather than to their structural circumstances.461

When a Prejudicial Intervention is drafted, it is designed to "manage" this essentialist

455
Id.
456
Id. at 20.
457
Id.
458
See Miranda Fricker, Epistemic Injustice: Power and the Ethics of Knowing 1 (2007).
459
Id. at 20.
460
See Gordon W. Allport, The Nature of Prejudice 20 (1954).
461
Id.

65
caricature. A paradigmatic example is the "welfare queen" trope, which metastasized from a
"kernel of truth" (a minuscule number of fraud cases) into a racialized, pervasive narrative
that the majority of welfare recipients were "chaotic" and "undeserving."462 The resultant
policy, such as the 1996 Personal Responsibility and Work Opportunity Reconciliation Act
(PRWORA) was built on this prejudice. Its onerous bureaucratic hurdles and punitive work
requirements were designed to "catch" the "undeserving" stereotype.463 In practice, these
mechanisms "threw over the edge" the vast majority of "non-ideal" but deserving victims. A
single mother struggling with trauma and childcare who missed a bureaucratic deadline could
lose all support, dumping her into the very chaos the policy sought to prevent.

C. The Self-Fulfilling Prophecy: Manufacturing Deviance

The process escalates from the individual to the communal through the self-fulfilling
prophecy, articulated by sociologist Robert K. Merton (1948).464 When prejudice is
institutionalized as policy, it creates the very reality it portends.

This is the core of Labeling Theory, as advanced by Howard Becker. A dominant group first
labels a marginalized group as "deviant" or "chaotic.”.465 This label justifies the Prejudicial
Intervention (for example, "broken windows" policing, hyper-surveillance). The community,
now targeted by the "Act," reacts with distrust. This intervention manufactures deviance as
minor offenses escalate, arrest statistics climb, and communities lose "collective efficacy" (as
defined by Sampson, 2012).466 The dominant group then points to these manufactured
statistics as "proof" of the original prejudice while failing to acknowledge its own "Act" as
the primary causal agent.467

The concept of mortality salience, from Terror Management Theory, is a real world example
to this self-fulfilling prophecy which states when a community is constantly threatened it will
cling more strongly to their cultural worldviews, and could potentially be more hostile and
aggressive against outgroups and other world views.468 If there is a perception of injustice,

462
See Franklin D. Gilliam, Jr., The "Welfare Queen" Experiment: How Viewers React to Images of African-
American Mothers on Welfare, 53 Nieman Reps. 49, 50 (1999).
463
See Kaaryn S. Gustafson, Cheating Welfare: Public Assistance and the Criminalization of Poverty 35 (2011).
464
See Robert K. Merton, The Self-Fulfilling Prophecy, 8 Antioch Rev. 193, 195 (1948).
465
See Howard S. Becker, Outsiders: Studies in the Sociology of Deviance 9 (1963).
466
See Robert J. Sampson, Great American City: Chicago and the Enduring Neighborhood Effect 150 (2012).
467
See Becker, supra note 465, at 15.
468
See Jeff Greenberg et al., Terror Management Theory of Self-Esteem and Cultural Worldviews: Empirical
Assessments and Conceptual Refinements, 29 Advances Experimental Soc. Psych. 61, 65 (1997).

66
double standards, humiliation or rage may aggravate the clinging.469

The U.S. "War on Drugs" is a legally relevant case study in this matter.470 Pre-existing racial
prejudice linked Black communities to urban "chaos." The Anti-Drug Abuse Act of 1986,
with its 100:1 crack-to-powder cocaine sentencing disparity, institutionalized this
prejudice.471 The "non-ideal victim", a low-level user-dealer struggling with poverty or
addiction, was not "treated" or reformed but rather re-labeled a "super-predator" and
incarcerated at mass scale.472 This policy decimated community structures, thereby
manufacturing the very "chaos" it was supposedly designed to stop, creating a perfect,
perverse feedback loop.473

D. The Internal Fracture: Respectability, Lateral Violence, and Final Justification

The most devastating outcome of the Prejudicial Intervention is not its external pressure, but
the deep and disorienting force it exerts within the marginalized community.474 The
intervention fractures any unified "Public Conscience" by weaponizing "respectability
politics" (as conceptualized by Higginbotham, 1993).475

The intervention's logic, which rewards the "ideal" subject and punishes the "non-ideal,"
presents a false, but (seemingly) rational, choice to the marginalized group. "Respectability",
the performance of dominant-group norms (being "well-disciplined," "non-chaotic") is
adopted as a survival strategy.476 This immediately bifurcates the group and creates an
“internal Other”.

This fracture then produces a Horizontal hostility also known as lateral violence.477 The
members of the oppressed group direct their aggression toward their peers rather than toward
the source of their oppression. The "respectable" faction, now having internalized the
dominant group's prejudice, views the "non-ideal" member as the cause of the prejudice (the
one who "makes us all look bad.")

469
Id.
470
See Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness 5 (2010).
471
Id. at 95.
472
See John J. DiIulio, Jr., The Coming of the Super-Predators, Wkly. Standard, Nov. 27, 1995, at 23.
473
See Alexander, supra note 470, at 180.
474
See Fanon, supra note 311, at 52.
475
See Evelyn Brooks Higginbotham, Righteous Discontent: The Women's Movement in the Black Baptist
Church, 1880–1920, at 185 (1993).
476
Id.
477
See Fanon, supra note 311, at 54.

67
This dynamic is highly deciding in the processes of “Prejudicial Interventions”, as the utmost
justification.478 When a "respectable" member of the marginalized group publicly denounces
the "non-ideal" members, they are essentially "throwing them under the bus" to ensure their
"ideal" status is protected. In doing so, they provide the oppressor with the "ideal" witness.
The dominant group can now claim its prejudice is not prejudice at all, but an “unfortunate
but real” [fact] and has been now "confirmed" by the marginalized group itself.479 The act of
"throwing under the bus" is the tragic consummation of the self-fulfilling prophecy. The
intervention has successfully created such intense pressure that it forces the group to mutilate
within. This is the final "testimonial" evidence that validates the "kernel of truth" and also
validates the intervention's brutish and self-perpetuating existence.

3.9 THE POLITICAL FOUNDATION: THE CONSCIENCE AS THE SUBALTERN

VOICE

If Haidt provides the cognitive mechanism and Ewick & Silbey provide the sociological
framework, postcolonial theory provides the political definition of the “silenced voices” of
Public Conscience.480

The Conscience's flaws, such as its susceptibility to “deindividuation or just-world

fallibility”, do not essentially invalidate its epistemic status.481 Instead, these flaws are often
seized upon by the hegemonic Legal Postulate as a justification for its total political
silencing.482 Antonio Gramsci coined the term to identify populations excluded from the
"cultural hegemony" of the state, who are denied their own agency and voice in politics.483

The work of Edward Said, in Orientalism, explains the method by which this silencing
occurs.484 The dominant Postulate (the "West" or "Occident") constructs a form of Public
Conscience (the "Orient" or "Other") as its binary opposite, "backward and irrational", where
the law needed to be disconnected.485 The Postulate's claim to "Reason" is only possible by
creating and managing an "Other" that it defines as "Unreason."486

478
See Higginbotham, supra note 475, at 190.
479
See Bourdieu, supra note 335, at 168.
480
See Spivak, supra note 9, at 280.
481
See Staub, supra note 15, at 15.
482
See Gramsci, supra note 48, at 260
483
Id.
484
See Said, supra note 43, at 3.
485
Id.
486
Id. at 40.

68
This leads to a political problem identified by Gayatri Chakravorty Spivak, which is "Can the
Subaltern Speak?".487 Spivak’s answer is a "no," not essentially because the subaltern is mute
but because to be heard by the hegemonic discourse, the subaltern must evolve to adopt the
Western (or the hegemonic ways) ways of knowing (including its ways of hermeneutics,
thoughts and reasoning)". This conformity causes the true voice of the subaltern native to be
censored.488

This is precisely the conflict at the heart of this dissertation. The Public Conscience (the
subaltern) cannot make its intuitive, Haidt-ian, "seeing-that" arguments to the Legal
Postulate. To be heard in courts of justice, its claims must be translated into the Postulate's
rationalist, "reasoning-why" logic.489 This translation is essentially an act of epistemic
violence.490

The legal philosopher bell hooks describes this dynamic of appropriation more pointedly.491
The Postulate, like the privileged academic, says to the Conscience (herein the marginalized
individual) that he is capable of deciding and describing the experience of the marginalized,
than the marginalized are capable of doing by himself.492

When the law decides in fervor of "social reform" or "rationality" against the public
conscious, it translates the Public Conscience's intuitions about aspects like sanctity or
tradition into its own methodology which by the way obviously external to the
communitarian dynamic, altogether decide what is best for the public conscious without ever
heeding their methodologies.493

3.9.1 The Architecture of Discursive Boundaries: Hegemony, the 'Overton Window,'

and the Internalized 'Line'

The perception of public discourse as a “level playing field” is mostly considered as an

ideological fiction, in post-colonial and post-modern academia.494 What is "acceptable" in
public discourse is, in actuality, a well-defined and fiercely policed discursive boundary, or
"line." This "line" is not natural, objective, or static; it is a social construct, actively designed

487
Spivak, supra note 9.
488
Id. at 285.
489
See Geertz, supra note 392, at 195.
490
See Spivak, supra note 9, at 280.
491
See bell hooks, Yearning: Race, Gender, and Cultural Politics 5 (1990).
492
Id.
493
See Ashis Nandy, The Intimate Enemy: Loss and Recovery of Self Under Colonialism 10 (1983).
494
See Bourdieu, supra note 335, at 165.

69
and maintained by dominant power structures to protect their own legitimacy.495 The
"design" of this line is asymmetrical, granting a "free pass" to hegemonic ideas while setting
a hair-trigger "threshold" for challenging ones. The ultimate success of this design is its
"assumption" by the disadvantaged, who become its unwitting enforcers.

A. The Asymmetrical 'Line': The 'Overton Window' as Privilege

The "free pass" afforded to certain segments is a function of the Overton Window, a concept
from political science that describes the range of ideas the public will accept as "sensible" or
"legitimate."496 The decolonial and subaltern discourses assert that this window is not a
neutral measure of public opinion but a product of hegemonic power.497
● The 'Free Pass' (Hegemonic Normativity): For dominant groups and their allied
ideologies (for instance, market-based solutions, nationalist narratives, "tough on crime"
policies), their ideas are already positioned at the center of the window (some are neutral
by default or in design). Their speech is framed by default as "rational," "pragmatic,"
"moderate," and "common sense." They are granted an enormous latitude for failure and
hypocrisy because their fundamental right to speak and set the terms of debate is never
questioned.498
● The 'Low Threshold' (Subaltern Deviance): Conversely, for marginalized, "non-
ideal," or subaltern groups, the "line" is drawn incredibly tight.499 Their threshold for
being deemed "unacceptable" is near zero. The exact same demands for justice or
redistribution that are "pragmatic" when voiced by a dominant-group-aligned actor are
framed as "radical," "divisive," "chaotic," or "violent" when voiced by the
disadvantaged.500 Their tone is policed, their anger is delegitimized, and their proposals
are dismissed as "utopian" or "dangerous" before their content is ever engaged. This is
an exercise in epistemic gatekeeping.

B. The 'Design' of the Line: Power/Knowledge and Manufactured Consent

This line is essentially "designed based on many factors," which are, in other words, the
vectors of power. This is a Foucauldian dynamic of power/knowledge.501 Power does not

495
Id.
496
See Nathan J. Russell, An Introduction to the Overton Window of Political Possibilities, Mackinac Ctr. for
Pub. Pol'y (Jan. 4, 2006).
497
See Nandy, supra note 493, at 15.
498
Id.
499
See Spivak, supra note 9, at 283.
500
See Fanon, supra note 311, at 40.
501
See Foucault, supra note 11, at 131.

70
merely censor (say "no") rather it does actively produce truth and "common sense." The line
is drawn and maintained by:
● Hegemonic Institutions (Gramsci): The "line" is the expression of ruling-class
ideology (hegemony) made to look like the "natural" will of the people.502 Institutions
like the media, the educational system, and potentially the legal profession all work to
reinforce this "line," by also filtering out (as in Herman & Chomsky's Manufacturing
Consent) ideas that challenge the fundamental premises of the power structure.503
● Historical Precedent: The "line" is sticky. It carries the prejudices of the past into the
present, in a way reaffirmation of long-standing hierarchies of race, class, and gender.504
● Capitalist Realism (Mark Fisher): In a neoliberal context, the "line" is often the
boundary of "market logic." Any idea that cannot be justified in terms of profit,
efficiency, or marketability is deemed "unrealistic" and thus outside the "line" of serious
discussion.505

C. The Assumed 'Line': Internalized Oppression as Self-Policing

The most insidious and effective mechanism of this "line" is that it is "assumed even by the
disadvantaged." This is the perfection of social control. The disadvantaged group,
recognizing that their "non-ideal" status puts them at high risk of crossing the "low
threshold," mostly internalizes the dominant group's "line" (as a survival strategy).506

This is the psychological engine of respectability politics. The disadvantaged group, in the
attempts to gain proximity to the "line" of acceptability, "assumes" the "line" as their own.
They then turn this weapon inward.
● Self-Policing: They begin to police their own community's discourse, tone, and tactics,
fearing that "chaotic" members will "make us all look bad" and "prove the
stereotypes."507
● Lateral Violence: They "throw under the bus" (as in the previous analysis) their own
"non-ideal" members, who are the angry, the traumatized, the "unrespectable", in a
desperate performance of their own alignment with the "sensible," dominant "line."508

502
See Gramsci, supra note 48, at 12.
503
See Herman & Chomsky, supra note 428, at 2.
504
See Bourdieu, supra note 47, at 164.
505
See Mark Fisher, Capitalist Realism: Is There No Alternative? 5 (2009).
506
See Higginbotham, supra note 475, at 187.
507
Id.
508
See Fanon, supra note 311, at 52.

71
This act of "assuming the line" is the basic compromise that leads to the domino effect here.
The disadvantaged group becomes a voluntary agent in its own "training" and subordination,
this validates the oppressor's "line" as the only "line" possible. The boundary does not always
have to be brutally enforced or forced from the outside, it can be vigilantly, and quite often
more brutally, policed from within.509

3.9.2 The Hart-Devlin Debate: A Conflict of Epistemologies

The archetypal conflict between the Legal Postulate and the Public Conscience was the
famed Hart-Devlin debate.510 As documented in H. L. A. Hart's Law, Liberty, and Morality,
the debate centered on the Wolfenden Report's recommendation to decriminalize private,
consensual homosexual acts in England.511 Lord Devlin, attacking this recommendation,
argued for "legal moralism", the idea that law should enforce morality "as such," even in the
absence of harm, because a shared morality is the "cement of society".512

Devlin's argument is a direct appeal to the Public Conscience. His standard for this shared
morality was not a rational treatise but the intuitive, gut feeling of the "man in the Clapham
omnibus".513 He argued that when this man feels a "real feeling of reprobation," particularly
"intolerance, indignation, and disgust," this intuitive epistemology is a sufficient basis for
law.514 Devlin's argument is a perfect articulation of Haidt's findings: the "elephant" of
intuition, particularly the moral foundation of Sanctity/degradation (which manifests as
disgust), is the source of moral judgment.515

H.L.A. Hart's response is the Legal Postulate. He systematically dismantled Devlin's

argument, not by disagreeing with the public's feeling of disgust, but by rejecting that feeling
as a valid epistemology for law. Hart argued that this "morality of disgust" was "not
supported by rational argument" and was "a matter of feeling" that amounted to little more
than "superstition".516 By demanding a rational justification (i.e., harm) that the Public
Conscience, in its "dumbfounded" state, could not provide, Hart successfully invalidated its

509
Id.
510
See Devlin, supra note 37, at 10.
511
See H.L.A. Hart, Law, Liberty, and Morality 1 (1963).
512
Id. at 13.
513
Id. at 15
514
Id. at 17.
515
See Haidt, supra note 6, at 150.
516
Hart, supra note 511, at 50.

72
entire way of knowing. This was an epistemic conflict between the rationalist Postulate and
the intuitive Conscience.517

3.10 CONCLUSION: A FRACTURED ANTAGONIST AND AN EPISTEMIC

TRAGEDY

This chapter set out to define the "Public Conscience", the constructed antagonist to the
"Legal Postulate”.518 This epistemic field represents the heterogeneity and distinctiveness of
the public or segments of it. It also intersects with legal postulates, as legal postulates can't
act in a vacuum, they require validation/management from the "Public Conscience" to
function.

Through the lens of cognitive psychology, the Conscience is the "elephant" of intuition
(Haidt), a "seeing-that" logic that is fast, powerful, and pre-rational.519 However, as social
psychology and group dynamics disclose this elephant is highly suggestible. Via the
frustrated needs (Staub), cognitive biases, and the confirmation to the "in-group" identity, it is
just as capable of becoming a destructive, scapegoating mob (Janis, Le Bon) or a "passive
bystander" (Genovese).520

This fracture is the central vulnerability of the “Conscience”, and the Legal Postulate's
strength of otherwise which uses it as a political tool.521 As explored through postcolonial
theory (Spivak, Said) and sociology (Gramsci, Foucault), the Postulate does not engage the
Conscience as a legitimate partner or at least a competing philosophy.522 Instead, it performs
an act of "epistemic violence." It seizes upon the Conscience's undeniable flaws, its
"irrationality," its "biases," its "mob-like" potential, as a political justification to de-legitimize
its entire epistemic values.523 The "subaltern" (Spivak) is silenced not because it is wrong, but
because its "seeing-that" logic is forced to "speak" in the "reasoning-why" language of its
oppressor, an act that is itself a distortion.524

This leads us to the core dissonance this dissertation attempts to map. The conflict is not a
simple binary of "Reason vs. Unreason”. The Legal Postulate's "formal-rational" (Weber)

517
Id. at 52.
518
See Kelsen, supra note 10, at 193.
519
See Haidt, supra note 6, at 52.
520
See Staub, supra note 15, at 15; Janis, supra note 378, at 9.
521
See Gramsci, supra note 48, at 246.
522
See Foucault, supra note 276, at 190.
523
See Spivak, supra note 9, at 275.
524
Id.

73
worldview, in its quest to build an "iron cage" of procedure to protect society from the
“mob”, has simultaneously created a system that is structurally deaf to the subaltern.525 The
Postulate's fear of the Conscience's destructive potential is, as Staub illustrates, often
justified.526 Yet, in building its "rational" walls, it has locked out the "humanistic-flexible"
(Hoffman) voice of empathy, creating a system that can deliver "rational" procedure but not
"substantive justice".527

We are left with two competing systems of knowledge. The Postulate, which is also a "folk
system" (Geertz) of the elite that has universalized itself through power.528 And the
Conscience, a fractured, intuitive, "subaltern" force that is both a wellspring of justice and a
tinderbox of destruction.

525
See Weber, supra note 273, at 181.
526
See Staub, supra note 15, at 18.
527
See Hoffman, supra note 444, at 50.
528
See Geertz, supra note 229, at 167.

74
CHAPTER 4: THE POSTULATES OF LIBERALISM,
SECULARISM, AND PATERNALISM

4.1 THE LIBERAL POSTULATE AND ITS DISSONANCE

The previous chapters were dedicated to the dissertation's salient theoretical conflict between
the "Legal Postulate," a rationalized, axiomatic system of justification, and the "Public
Conscience," an intuitive, experiential, and subaltern moral epistemology.529 This chapter is
centered on understanding and dissecting the Western secular-liberal-paternalistic tendency
of modern jurisprudential thought and legislative milieu itself. It is crucial to understand that
the epistemic formation of India's secularism (of pluralistic accommodation) should not be
read with the same breadth as the global 'Legal Postulate’ which operates on “Western
logic”.530

Obviously, regarding the liberal and secular ethos, a possible assumption can be made that its
adherents believe in concepts such as 'Individual Liberty' or 'Agency' with the same
axiomatic fervor that ancient peoples believed in Zeus or Athena.531

Liberalism, in this dissertation's context, is not brought to the equation as a purely political
position but rather as a dominant jurisprudential Postulate that defines and polices the very
boundaries of legitimate state action.532 This chapter analyzes the specific Western secular-
liberal-paternalistic tendency that undergirds this Postulate. It is essential to recognize that
the epistemic formation of Indian secularism (traditionally understood as pluralistic
accommodation or "principled distance") is vastly different from the rigid Western liberal
thought now increasingly hegemonic in global jurisprudence.533

This seemingly simple axiom of "Liberty" creates an immediate and fervent dissonance with
the Public Conscience. It does this by: (1) rejecting the epistemology of the Conscience as a
valid source of law; (2) justifying intervention by framing the Conscience's choices as "non-
voluntary" or "harmful" based on a secular calculus; and (3) producing conclusions that the

529
See Kelsen, supra note 10, at 193.
530
See Rajeev Bhargava, The Distinctiveness of Indian Secularism, in The Future of Secularism 20 (T.N.
Srinivasan ed., 2007).
531
See MacIntyre, supra note 13, at 69.
532
See Ronald Dworkin, Taking Rights Seriously 180 (1977).
533
See Bhargava, supra note 530, at 35.

75
Conscience finds morally repugnant.534

4.2 THE CLASH OF TELEOLOGIES: THE TABULA RASA VS. THE

SOTERIOLOGICAL SELF

The foundational rupture between the Legal Postulate and the Public Conscience lies in their
divergent conceptions of the human self and its ultimate purpose (teleology). The Secular-
Liberal Postulate functions on the Lockean assumption of the Tabula Rasa or the "Blank
Slate."535 In this view, the individual is born without inherent metaphysical burdens or duties,
defined solely by their capacity for autonomous choice and the pursuit of material well-being
in this life.536

In contrast, the Public Conscience, particularly in the Indian context (also in the religious
context especially the Abrahamic faiths which contribute to a major part of the global
demographics) aligns with the "Soteriological Self”.537 This is a self defined not by
autonomy, but mostly by obligation (for example in Hinduism the concepts of Dharma,
Rna).538 For the religious subject, reality is not limited to materiality; for most, it rests on the
axiomatic certainty of a Creator and the existence of an Afterlife (at least for Abrahamic faith
and factions of Hinduism and other faiths).539 Consequently, actions that appear "irrational"
or "harmful" to the secular gaze (such as refusing certain material benefits like alcohol,
gender roles, communitarian ethics) are squarely within the religious epistemology and are
also hyper-rational calculations.540 They are "sacrifices" performed to secure a higher good
such as Salvation (for instance Moksha in Hinduism) or divine favor (the religious aspects
altogether rest on different epistemology, for instance, the Islamic or larger Abrahamic
morality rests on the epistemology of the existence of God; the rest are syllogisms, that if
God exists and God said so and so, the subjects are obligated to adhere to it, or as per Divine
Command Theory, God is the best source of morality).541

The Secular-Liberal Postulate, lacking the epistemic vocabulary to recognize "Salvation" as a

534
See Devlin, supra note 37, at 10.
535
John Locke, An Essay Concerning Human Understanding 50 (Peter H. Nidditch ed., Oxford Univ. Press
1975) (1689).
536
See Charles Taylor, Sources of the Self: The Making of the Modern Identity 160 (1989).
537
See Max Weber, The Sociology of Religion 150 (Ephraim Fischoff trans., Beacon Press 1963) (1922).
538
See Gavin Flood, An Introduction to Hinduism 53 (1996).
539
See Huston Smith, The World's Religions 20 (1991).
540
See Rodney Stark, Rational Choice Theories of Religion, 2 Agora 1, 4 (1994).
541
See Robert Merrihew Adams, Finite and Infinite Goods 15 (1999).

76
valid good, misdiagnoses these acts.542 Because it cannot see the benefit (such as spiritual
liberation, at least in the eyes of the believer), it sees only the cost (physical discomfort,
restriction, or absurdness). It therefore paternalistically categorizes these voluntary religious
submissions as "self-harm" or "oppression” bringing a “burden” to "save" the subject from
their own path to salvation.543

This divergence exposes a critical flaw in the Postulate's claim to maximize human well-
being, which could be better described as a "Utilitarian Paradox”.544 The Liberal Postulate
assumes that maximizing individual autonomy and severing "restrictive" communitarian
bonds leads to happiness.545 Yet, empirical observations of hyper-liberal societies may not
align with this presumption. For instance, Nordic nations, which represent the zenith of the
Secular-Liberal ideal, are acknowledged to be defined by high autonomy, strong social safety
nets, and low religious adherence, yet simultaneously exhibit disproportionately high rates of
depressive disorders and reliance on pharmaceutical antidepressants.546

This results in a 'Utilitarian Paradox’.547 The Postulate assumes that shattering the 'restrictive'
communitarian bonds automatically maximizes overall well-being. However, this dismantling
may instead break, if we are referring to Peter Berger, the "sacred canopies" of the
communities.548 There is no guarantee that the imported Postulate can provide psychological
wholeness, especially as there is no empirical consensus towards such assumptions. By
prioritizing the freedom to choose over the content of the choice, and by dismantling the
"sacred canopies" of community that had provided meaning to their lives, the Postulate may
have contributed to the alienation of the subject to ensure the subjects have achieved tabula
rasa.549 It may in essence have broken the underlying structure or the fabric of the
community which was a result of the long-practiced customs, which in practice was
successful for stability and protected them from chaos.

The Postulate’s application of the "Harm Principle" or its other first principles is found to be

542
See Stephen L. Carter, The Culture of Disbelief: How American Law and Politics Trivialize Religious
Devotion 10 (1993).
543
See Asad, supra note 24, at 5.
544
See Bernard Williams, A Critique of Utilitarianism, in Utilitarianism: For and Against 77 (J.J.C. Smart &
Bernard Williams eds., 1973).
545
See John Stuart Mill, On Liberty 15 (Elizabeth Rapaport ed., Hackett Publ'g 1978) (1859).
546
See World Health Org., Depression and Other Common Mental Disorders: Global Health Estimates 15
(2017).
547
See Gregg Easterbrook, The Progress Paradox: How Life Gets Better While People Feel Worse 5 (2003).
548
See Peter L. Berger, The Sacred Canopy: Elements of a Sociological Theory of Religion 20 (1967).
549
Id.

77
inconsistent and culturally biased.550 The Secular State permits, and even protects, behaviors
that cause demonstrable physical or social destruction, such as the consumption of alcohol,
the atomization of the family, or the commodification of attention under the banners of
"Consumer Choice" and personal liberty.551 Yet, it aggressively polices religious practices
that cause far less empirically verifiable harm (such as specific dietary codes or certain dress
standards) under the banner of "Reform”.552 This inconsistency may point out that the
Postulate is not objectively regulating "Harm", it is “selectively targeting” competing
epistemologies. It can be argued that it tolerates the "harms" of Capitalism because they align
with its materialist worldview, but it cannot tolerate the "harms" of Religion because they
serve a Master it does not recognize.553

4.3 THE PATERNALIST'S JUSTIFICATION: THE "NON-VOLUNTARY"

CONSCIENCE

The liberal Postulate is not anti-interventionist. It frequently intervenes to "protect" citizens

from themselves. To justify this apparent violation of its own Harm Principle, it developed a
sophisticated logic of paternalism. Joel Feinberg, in his seminal essay Legal Paternalism,
provides the mechanism.554

Feinberg distinguishes between "strong paternalism" (overriding a fully voluntary choice)

and "weak paternalism" (interfering with a substantially nonvoluntary choice).555 The liberal
Postulate publicly disavows the former as a "preposterous doctrine". Its preferred mode of
intervention is "weak paternalism," which it justifies by arguing that the choice it overrides is
not truly the individual's "own." A choice is deemed "substantially nonvoluntary" if it is
made under ignorance, coercion, clouded judgment (for example, excitement, delirium),
neurotic compulsion, or with defective faculties (example, being a child).556

This framework is the Postulate's primary tool for managing the Public Conscience. When
the Conscience makes a choice that the Postulate dislikes (such as communitarian or religious
ethics), the Postulate does not need to argue that the practice is "wrong." It need only argue

550
See Asad, supra note 24, at 55.
551
See Herbert Marcuse, One-Dimensional Man 5 (1964).
552
See Saba Mahmood, Politics of Piety: The Islamic Revival and the Feminist Subject 15 (2005).
553
See Max Weber, The Protestant Ethic and the Spirit of Capitalism 181 (Talcott Parsons trans., 1958).
554
See Joel Feinberg, Legal Paternalism, 1 Can. J. Phil. 105, 105 (1971).
555
Id.
556
Id. at 110.

78
that the choice to engage in it is "substantially nonvoluntary".557 It can claim the individual is
blinded by "superstition" (clouded judgment), coerced by "ancient custom" (compulsion), or
"misinformed" about their true interests (ignorance).558

Feinberg's "weak paternalism" provides the "fictional exegesis" that allows the liberal state to
override the intuitive epistemology of the Conscience without violating its own "Axiomatic
Stop" (the meta-narratives of the tendency). It does not say "your values are wrong"; it
instead says "your choice is not real." It remodeled a conflict of values (or epistemologies and
ontologies) into a finding that the subject lacks the sufficient agency to decide by himself,
hence the state has to intervene.559

4.3.1 The Paternalist's Imperialist Origins: Mill's 'Nonage'

The logic of paternalism identified in Feinberg is not an ancillary development; it is

foundational to the liberal Postulate itself.560 For example, in the case of one of the liberal
axioms, the "Harm Principle," the Postulate's "Axiomatic Stop" was at its very inception,
intertwined with imperialism. Its pioneer, John Stuart Mill, explicitly stated that this doctrine
was meant to apply only to human beings in the maturity of their faculties.561

Mill immediately excludes "children", as if they are in nonage, who are the "barbarous" or
"uncivilized" peoples who were not ready for liberty and could be subject to "paternalistic
despotism" until they reached a certain level of development.562 Mill's argument that
"barbarians" must be ruled by a "ruler full of the spirit of improvement" is the archetypal
Legal Postulate overriding an entire Public Conscience.563 The "improvement" is, by
definition, Eurocentric normativity. Mill’s exclusion of the 'barbarian' is not his only alleged
epistemic failure. His foundational 'Harm Principle' rests on a circular proof of Utility (as
explained in the first chapter), the idea that what is 'desirable' is simply what people 'do
actually desire’.564 By anchoring the Postulate in a pleasure-pain calculus (Hedonism), Mill
creates a legal system capable of protecting 'happiness' but incapable of understanding the

557
Id.
558
Id. at 115.
559
See Isaiah Berlin, Two Concepts of Liberty, in Four Essays on Liberty 118 (1969).
560
See Uday Singh Mehta, Liberalism and Empire: A Study in Nineteenth-Century British Liberal Thought 10
(1999).
561
Mill, supra note 545, at 10.
562
Id.
563
Id. at 11.
564
See John Stuart Mill, Utilitarianism 34 (Sher grade ed., Hackett Publ'g 1979) (1861).

79
'sacred' duties of the Public Conscience.565

The widely held conclusion is that "weak paternalism" is not a reluctant exception to the
liberal rule (a form of necessary evil); it is the original method by which the Postulate
engages with any epistemology it deems "barbarian," "stagnant," or "non-rational." It is also
held that it is the blueprint for epistemic colonization.566

4.4 THE PHANTOM OF LAÏCITÉ: SECULARISM AS ERASURE

To understand the seriousness of the Legal Postulate’s conflict with the Public Conscience,
one must distinguish between the practice of secularism in India (academically termed as
"principled distance") and the ideal of secularism that the Postulate frequently aspires to that
of the French model of Laïcité.567

Laïcité is not merely the separation of Church and State; it is a project of "neutralization”.568
In the historical pretext it is important to note that in the wake of the French revolution there
was brutal suppression of religious entities in France, both physically and legally.569 Laïcité
demands that the public sphere be entirely stripped of religious markers. As political theorist
Talal Asad argues, this form of secularism requires the "privatization" of religion.570 It splits
the subject into two: the abstract, rational "citizen" (who operates in public) and the particular
"believer" (who must remain in private). Ideally, in the Laïcitian utopia, the two never
meet.571

This model relies on a specific epistemological assumption: that religion is merely a "belief"
or a "private opinion" that can be shed like a coat upon entering a government building or a
school.572 This is, as Wendy Brown suggests, a culturally specific, Protestant understanding
of religion.573 For the "Public Conscience" in India, where religion is often a totalizing way
of life, a set of dietary and aesthetical laws, kinship structures, and community duties, this

565
Id.
566
See Dipesh Chakrabarty, Provincializing Europe: Postcolonial Thought and Historical Difference 5 (2000).
567
See Bhargava, supra note 530, at 25.
568
See Jean Baubérot, The Secular Principle, in France in the New Century 10 (2000).
569
See James A. Winders, European Culture Since 1848, at 20 (2001).
570
Asad, supra note 543, at 180.
571
Id.
572
See Stephen L. Carter, The Dissent of the Governed 15 (1998).
573
See Wendy Brown, Regulating Aversion: Tolerance in the Age of Identity and Empire 30 (2006).

80
"shedding" is impossible, especially being highly diverse communities.574

Therefore, when the state structures via the Postulate, attempts to import the logic of Laïcité
into the Indian context, it doesn't act as a mediator but as an eraser.575 It views the visible
manifestation of the Conscience (the turban, the veil, the ash, the procession) not as an
expression of diversity but as an aggression against the "neutral" state. Unlike the Indian
constitutional reality (or the existing status quo) which acknowledges and engages with
religious communities (managing temples, recognizing personal laws), the Laïcité logic sees
these communities only as obstacles to be overcome.576 It seeks a "negative liberty", freedom
from the Conscience, rather than exploring a pluralistic coexistence (along with the
possibility of pragmatic and mutually beneficial (or at least not injurious) compromises for
the coexistence) with it.577

This 'negative liberty' is enforced through the Paradox of Tolerant Violence. The Postulate,
claiming to be neutral, becomes fiercely intolerant of any worldview that refuses to be
privatized.578 As Ashis Nandy argues, this form of secularism acts as a 'state religion' of its
own, one that is jealous and possessive.579 It uses the full apparatus of the law to dismantle
the organic, pluralistic coping mechanisms of the Public Conscience (which historically
managed diversity through community accommodation) and replaces them with a cold,
binary state logic.580 The removal of the 'symbol' (the veil, the cross, the turban) in this
perspective, is not a neutral administrative act. It can be viewed as a ritualized public
humiliation of the Conscience, simply put, a display of the Postulate’s power to strip the
individual of their deepest identity in the name of an abstract 'citizen' that exists only in the
Western imagination.581

The "Paradox of Tolerant Violence" is juridically codified in the European Court of Human
Rights decision in S.A.S. v. France (2014).582 When upholding the French ban on the full-face
veil (niqab), the Court admitted that the ban could not be justified by "public safety" or

574
See Ashis Nandy, The Politics of Secularism and the Recovery of Religious Tolerance, in Secularism and Its
Critics 321 (Rajeev Bhargava ed., 1998).
575
Id.
576
Id.
577
See Berlin, supra note 559, at 122.
578
See Stanley Fish, Mission Impossible: Settling the Just Bounds of Fundamental Liberalism, 97 Colum. L.
Rev. 2255, 2260 (1997).
579
Nandy, supra note 574, at 330.
580
Id.
581
See Joan Wallach Scott, The Politics of the Veil 15 (2007).
582
See S.A.S. v. France, 2014-III Eur. Ct. H.R. 341.

81
"gender equality" (the usual secular-liberal-paternalistic rationales). Instead, the Court
accepted the French government’s novel concept of "le vivre ensemble" (living together).583

Here, the Legal Postulate invented an ambiguous and vague "right to social interaction" to
override the settled religious expression of the subaltern.584 The Court effectively ruled that
the Public Conscience’s discomfort with the "Other" (the veil) outweighed the individual’s
right to religious identity. The "neutral" state is for all practical purposes enforcing a specific
cultural aesthetic and penalizes the subaltern for failing to perform "citizenship" in a way that
is visually pleasing to the majority.585 The most troubling problem of usage of such lexicon is
its wider subjectivity, lending credibility to enforcement of cultural hegemony.

4.4.1 The Violence of the Universal: Westernism as the "Zero Point"

The ultimate source of the Legal Postulate's power and its violence is its claim to occupy the
"Zero Point" of knowledge (a concept from Castro-Gómez).586 Western secular liberalism
posits itself not as a culture, but as the absence of culture (in parallel to the “tabula rasa”
claim mentioned above),the neutral, rational, scientific baseline from which all other
"cultures" deviate.587

This allows the Postulate to deploy force without ever appearing aggressive. When it strikes
down a local custom (or a certain artifact), it can claim it is merely removing an
"irrationality" to restore the "natural" order of rights.588 It hides its own "assumptions" which
have specific roots in European counter-cultures and market capitalism, behind the facades of
the "Universal".589

Consequently, the Public Conscience is trapped. If it argues against the Postulate using its
own terms (Tradition, Revelation), it is dismissed as "subjective" or "theocratic." If it tries to
argue using the Postulate's terms (Rights, Reason), it has already conceded the epistemic
territory (once the compromise is made, in the further discourses the said assumptions will be
pre-supposed and the discourses to be centered on the second principles).590 This rigged game

583
Id. at 370.
584
Id.
585
See Scott, supra note 581, at 18.
586
See Santiago Castro-Gómez, The Missing Chapter of Empire: Postmodern Reorganization of Coloniality and
Post-Fordist Capitalism, 21 Cultural Stud. 428, 433 (2007).
587
Id.
588
Id.
589
See Immanuel Wallerstein, European Universalism: The Rhetoric of Power 10 (2006).
590
See Asad, supra note 24, at 150.

82
is the essence of Liberal Imperialism: the demand that the subaltern must become Western or
part of dominant narrative in order to be recognized as human, or even to be recognized as
having a valid legal argument.591

4.5 AN EPISTEMIC CASE STUDY: THE "ESSENTIAL RELIGIOUS PRACTICE"

AND THE CONFLICT OF ONTOLOGIES

The essential religious practice (ERP) judicial test raises the problem of viewing one
phenomenon through two radically different epistemological and ontological lenses.592 This
rational methodology is designed to identify the "core" of a faith to extend constitutional
protection. This methodology is mostly recognized as to practice under a specific ontological
assumption that "Religion" can be interpreted directly from foundational scriptures.593

The larger critique is not on the premise that ERP is inherently malicious; someone could
perfectly make a point that ERP is to protect the "core" of the faith from the State’s
totalitarian tendencies.594 If the Postulate did not separate the "religious" from the "secular,"
the modern state, who has alleged to be effectively transitioned from a minimal state to an
overly regulated state, may inevitably swallow religion whole in pursuit of the stated “tabula
rasa” vision.595

The fundamental criticism stems from the ERP’s view of the ontology of religion; it is
logocentric in that it assumes that the "truth" of a faith resides in its foundational texts and
presumes an existence of a uniform methodology of hermeneutics.596 Therefore, to determine
if a practice is protected, the Postulate asks whether this practice is mandated by the scripture
and is essentially obligatory.597

The "Public Conscience," however, often operates on a completely different ontological

plane. For the subaltern or the traditional believer (especially in the Indian or indigenous
cultures), religion is not merely a list of text-bound dogmas but a "form of life" (to borrow
from Wittgenstein).598 Its ontology is largely phenomenological and performative. It resides
in rituals, dietary codes, dress, and community synchronicity, practices that may not be

591
See Mehta, supra note 560, at 20.
592
See Ronojoy Sen, Articles of Faith: Religion, Secularism, and the Indian Supreme Court 20 (2010).
593
Id.
594
Id. at 25.
595
See Marc Galanter, Law and Society in Modern India 240 (1989).
596
See Asad, supra note 24, at 10.
597
See Sen, supra note 592, at 30.
598
See Ludwig Wittgenstein, Philosophical Investigations § 23 (G.E.M. Anscombe trans., 3d ed. 1958).

83
scripturally "mandatory" in a textual sense or such culture might have been formed entirely
outside of the textual realm, but are constitutively "essential" to the believer’s identity.599
India’s diverse and distinct practices may not have a sufficient basis in orthodoxy, but are
defined by Orthopraxy.600

In applying the ERP test, the judge assumes the role of the High Priest.601 The dissonance
arises when the Postulate attempts to impose its specific ontology onto the long-settled
practices. A specific dietary code or dress standard may not be explicitly commanded in the
primary scripture, but the larger cultural developments, experiential knowledge or a religio-
centric hermeneutical standard may reveal a different outcome.602 The question of whether
the courts like the scenarios where the courts typically show restraint due to not having
expertise can also be extended to the religions and cultures, can also be central to this
problem. The Postulate claims the epistemic authority to interpret the "other’s" reality better
than the "other" does.603 When a community claims, "This ritual is essential to us," and the
Court replies "We have read your texts and determined it is not," a "Rationalized Religion" is
created,a sanitized version of faith that fits the “Postulate’s categories” but is unrecognizable
to the practitioner.604

This conflict of ontologies reached its zenith in the Indian Supreme Court’s judgment in
Indian Young Lawyers Association v. State of Kerala (2018) (The Sabarimala Case).605 The
majority verdict, as per the critiques the paternalistic tendency of "Legal Postulate", struck
down the custom barring women of menstruating age from the temple. The rationale for its
decision was based on "Constitutional Morality" and the "anti-exclusion" principle. It viewed
the custom through the lens of rights-based liberalism/tabula rasa.606

However, the lone dissenting opinion by Justice Indu Malhotra was instrumental in the later
criticism of the judgement.607 She argued that in a pluralistic society, "Constitutional
Morality" must not become a tool for the State to reshape religious beliefs in accordance with

599
See Clifford Geertz, Religion as a Cultural System, in The Interpretation of Cultures 87 (1973).
600
See Frits Staal, Rules Without Meaning: Ritual, Mantras and the Human Sciences 5 (1989).
601
See Sen, supra note 592, at 40.
602
Id.
603
See Edward W. Said, Orientalism 3 (1978).
604
See Asad, supra note 24, at 15.
605
Indian Young Lawyers Ass'n v. State of Kerala, (2019) 11 SCC 1.
606
Id. (Chandrachud, J., concurring).
607
Id. (Malhotra, J., dissenting).

84
"rational" or secular norms.608 She recognized that for the devotees, the deity is a "Naishtika
Brahmachari" (eternal celibate), and the practice was not an act of misogyny (as the Postulate
read it) but an act of ontological synchronization with the deity’s nature.609 The dissonance
here was absolute; the Majority applied the "Harm Principle" to a "Soteriological" practice,
resulting in a judgment that was legally "correct" (rational) but experientially "violent" to the
believer's nomos.610

Scholars like Talal Asad and Jakob De Roover have argued that this approach relies on a
"Protestant" understanding of religion, one that reads the internal "belief" and "scripture"
over external "ritual" and "practice”.611 The Postulate protects the belief (which is private and
harmless) but frequently exercises the practice (which is public and “messy”). This is quite
fatal for the Public Conscience in traditions like Hinduism or even in Abrahamic faith, where
orthopraxy (correct practice) is often just as significant, if not more so, than orthodoxy
(correct belief). In Catholicism, the church is paramount, and in the ethical realm they may
refer to the church rather than the scriptures, while Protestantism can be the exact opposite.612
The Islamic position is quite more problematic, such as the Sufi practices may be more
deviated from the underlying texts.613 Muslims, contrary to the larger perception, are highly
heterogeneous. Even if to avoid the binary of practicing vs. non-practicing, still in the
theological, jurisprudential realms there are varying schools and nuances with each having its
own "Thou Shalts" and "Thou Shalt Nots”, albeit they may be same in the underlying faith.
Also even among the jurisprudential schools, they entertain different methodologies to arrive
into Judgements (for instance the Shafi’s in Kerala may not mandatorily require to keep a
beard, but the Hanafis who are the majority of India do).614

The most important conflict exists in the ontological domain. The Public Conscience
experiences faith as a totalizing whole; one cannot surgically remove the "secular" aspects of
a ritual from the "religious" ones without killing the practice itself.615 The Postulate, however,
may insist on this dichotomy. It dissects the believer’s life, labeling some parts "essential"

608
Id.
609
Id.
610
See Cover, supra note 18, at 40.
611
See Jakob De Roover, Europe, India, and the Limits of Secularism 50 (2015).
612
See Charles Taylor, A Secular Age 450 (2007).
613
See Nile Green, Sufism: A Global History 10 (2012).
614
See Wael B. Hallaq, Shari'a: Theory, Practice, Transformations 50 (2009).
615
See Nandy, supra note 574, at 325.

85
(protected) and others "secular/superstitious" (regulatable).616

4.6 DECONSTRUCTING THE POSTULATE'S AXIOMS: AGENCY AND POWER

It is imperative to deconstruct the "Axiomatic Stops" of the liberal Postulate itself. The
Postulate justifies overriding the Conscience by resting its case on the supposedly neutral
concepts like "liberty," "agency," "rationality," and "harm." But the question to be raised is:
Are these concepts essentially neutral in their conception and dissemination.617

The 'Autonomous Individual' that the liberal Postulate seeks to protect is, historically
speaking, an “incoherent fiction”, which the liberal tradition itself conflated with its
paternalistic exceptions.618 Locke grounded this individual’s rights in a theological appeal to
a Creator, which in essence has contradicted his wider empiricism.619 Locke's conception was
not reliant upon a secular axiom for its epistemological justification, hence the later liberal
thinkers attempted to find different justification first principles. Rawls, attempting to rescue
this subject in the 20th century, formed a rationale with the "Veil of Ignorance”.620 But larger
criticism claimed this was merely a repackaged Western hedonism as 'Rational Desire.' Thus,
when the Law intervenes to protect 'Agency,' it is protecting a specific, culturally derived
construct of the 'Rational Hedonist', a persona that the Public Conscience may not have
properly ingrained.621

Drawing on Foucault, Judith Butler argues that the "juridical systems of power" (the Legal
Postulate) produce the very subjects they claim to merely "represent" or "liberate".622 The
liberal Postulate's definition of an "autonomous" or "rational" individual, the very subject
Feinberg seeks to protect, is not a universal truth but a historical product of that Postulate.623

Saba Mahmood's critique, where she examines pious religious women who embrace the veil
and practices of the female-centric norms, see themselves as cultivating virtue and agency.624
The liberal Postulate sees this only as "false consciousness" or a lack of agency, a

616
See Sen, supra note 592, at 35.
617
See Foucault, supra note 11, at 93.
618
See MacIntyre, supra note 13, at 10.
619
See Jeremy Waldron, God, Locke, and Equality 20 (2002).
620
See John Rawls, A Theory of Justice 118 (1971).
621
See Michael J. Sandel, Liberalism and the Limits of Justice 15 (1982).
622
See Butler, supra note 44, at 2.
623
Id. at 5.
624
Mahmood, supra note 552, at 15.

86
"substantially nonvoluntary" choice that must be paternalistically "corrected."625 The
paternalistic Postulate is incapable of seeing that its own "Axiomatic Stop", its definition of
"agency" as an individual's untethered choice, is a culturally specific, secular, and Protestant
concept that it attempts to universalize.626

Butler and Mahmood critique the perspective that the Legal Postulate's claim to be saving the
"person" from their "non-rational" choices is, in fact, an act of epistemic colonization, an
attempt to remake the subaltern Conscience in its own image.627

4.7 CONCLUSION

The liberal Postulate's engagement, in its paternalistic tendency, with the Public Conscience
is not considered as dialogue rather a monologue of power.628 It begins by invalidating the
Conscience's “intuitive epistemology” as "irrational" (Hart vs. Devlin).629 It then develops a
"fictional exegesis" of paternalism (Feinberg) to justify intervening against the Conscience's
choices, framing them as "non-voluntary" products of superstition or coercion.630 When taken
to its logical extreme (such as Singer), this Postulate produces conclusions that are perfectly
rational to itself but morally monstrous to the Conscience.631 Finally, its own foundational
axioms of "agency" and "liberty" (Butler, Mahmood) are revealed to be non-neutral
constructs of power.632

625
Id.
626
Id. at 20.
627
See Butler, supra note 622, at 10.
628
See Mikhail Bakhtin, The Dialogic Imagination 293 (Michael Holquist ed., Caryl Emerson & Michael
Holquist trans., 1981).
629
See Hart, supra note 511, at 50.
630
See Feinberg, supra note 554, at 115.
631
See Peter Singer, Practical Ethics 150 (3d ed. 2011).
632
See Mahmood, supra note 552, at 15.

87
CHAPTER 5: THE POSTMODERN TURN:
DECONSTRUCTION, METANARRATIVES, AND THE RISE
OF THE SUBALTERN VOICE

5.1 INTRODUCTION: THE ACADEMY'S INSURGENCY

This chapter steps into the contemporaneous developments in academia that have gained
fame, specifically the cluster of critical theories known as postmodernism, deconstruction,
feminism, and queer theory.633 This dissertation argues that this "postmodern turn" is not, in
itself, a novel competing postulate in the same vein as Utilitarianism or Kantianism, as in the
prior critiques. Rather, it should be construed as an academic formalization of the public
conscience's rebellion.634 It represents a movement where the "subaltern" (Spivak) is finally
acquiring the theoretical language to "speak back" to the "colonizer's" (hooks) hegemonic
discourse.635 Albeit postmodernism, as it is designed to question metanarratives, may lack a
specific and monolithic understanding, the attempt here is based on forming a postmodern
response rather than framing what it is.

5.2 LYOTARD AND THE "INCREDULITY TOWARD METANARRATIVES"

The central axiom of the postmodern condition as defined by Jean-François Lyotard is an

"incredulity toward metanarratives."636 A metanarrative is a "grand narrative" or a totalizing,
universal explanation of reality that claims objective, absolute truth.637

The "Legal Postulate" is the quintessential metanarrative. It is the bundle of narratives framed
on grounding in "Reason," "Progress," and "Objective Justice" that has pioneered Western
jurisprudence since the Enlightenment.638 It is the narrative that sanctions the perception that
judges merely "find" or "deduce" the law (the "fictional exegesis"), that its principles are
universal, and that its authority is "rational-legal" (Weber) rather than arbitrary.639

The postmodern turn, therefore, is a direct critique on this claim. It is the philosophical

633
See Steven Best & Douglas Kellner, Postmodern Theory: Critical Interrogations 5 (1991).
634
See Santos, supra note 8, at 136.
635
See Spivak, supra note 9, at 280.
636
Jean-François Lyotard, The Postmodern Condition: A Report on Knowledge xxiv (Geoff Bennington &
Brian Massumi trans., Univ. of Minn. Press 1984) (1979).
637
Id.
638
See Costas Douzinas & Adam Gearey, Critical Jurisprudence: The Political Philosophy of Justice 5 (2005).
639
See Weber, supra note 1, at 215.

88
articulation of the "Against the Law" schema (Ewick and Silbey) from Chapter 2.640 It
attempts to break the binaries such as the perceived laymanish "backwardness" of the Public
Conscience against the assumed "enlightenment" of the Postulate. Instead of arguing on the
terms fixated by the Postulate, it questions the Postulate itself.641 The claim is that the meta-
narratives are not universal truths, and there can be different diverse and pluralistic
interpretations, and rejects the totalitarian conceptions.642

5.3 DECONSTRUCTION AS THE SUBALTERN'S METHOD

If Lyotard's "incredulity" is the attitude of the postmodern turn, deconstruction is its primary
method. In Chapter 1, we used Jacques Derrida's Force of Law to assess the Legal Postulate,
isolating its "mystical foundation" as an "unfounded" performative force.643 Now, in Chapter
4, we see deconstruction as the weapon used by the subaltern to dismantle that Postulate.

Deconstruction is the "close reading" of a text (such as a legal judgment, a statute, or a

philosophical treatise) to expose its internal contradictions and the unstated, arbitrary
"Axiomatic Stops" upon which it rests.644 It works by:

● Identifying Binary Oppositions: It finds the hidden hierarchies in the law's language
(for example rational/emotional, objective/subjective, man/woman, straight/queer,
civilized/savage) where the first term is privileged over the second.645
● Reversing the Hierarchy: It shows how the "inferior" term is actually essential for the
"superior" term to even have meaning.646
● Exposing the Axiom: It demonstrates that this hierarchy is not "natural" or "logical" but
a political choice, a "performative force" of power that conceals itself as reason.647

This is the ultimate answer to Spivak's "Can the Subaltern Speak?". Deconstruction is the
method by which the subaltern, silenced by the hegemonic discourse, can finally take that
discourse apart from the inside.648 It is the "inner press secretary" (Haidt) of the Legal

640
See Patricia Ewick & Susan S. Silbey, The Common Place of Law: Stories from Everyday Life 48 (1998).
641
See Foucault, supra note 11, at 80.
642
See Lyotard, supra note 636, at 60.
643
See Derrida, supra note 19, at 943.
644
See Jacques Derrida, Of Grammatology 158 (Gayatri Chakravorty Spivak trans., Johns Hopkins Univ. Press
1976) (1967).
645
Id.
646
Id.
647
See Derrida, supra note 643, at 941.
648
See Spivak, supra note 9, at 283

89
Postulate being cross-examined until it admits its "mystical foundation."649

5.4 FEMINISM AND QUEER THEORY: DECONSTRUCTING THE "NEUTRAL"

SUBJECT

The most potent and "hot topic" applications of this deconstructive method are feminism and
queer theory. These critical movements perform the exact deconstruction described above,
applying it to the Legal Postulate's most fundamental (and concealed) axioms: gender and
sexuality.650

Feminist Jurisprudence: Critical feminists like Catharine MacKinnon deconstruct the

"neutral" Legal Postulate to assert that it is fundamentally male.651 The Postulate's "rational
actor" is a man.652 Its definition of "harm" (as seen in the Hart-Devlin debate) is based on a
male-centric view of discrete, public acts all while ignoring systemic, private harms like
domestic violence or the objectification of pornography.653 MacKinnon argues that the law's
prized "objectivity" is simply "the male point of view" masquerading as universal.654 This is a
direct deconstruction of the liberal Postulate analyzed in Chapter 3, pointing out that its
"Axiomatic Stop" is not "Reason," but "Patriarchy."

Queer Theory: Queer theorists like Judith Butler (referenced in Chapter 3) take
deconstruction a step further. They deconstruct the very binary of man/woman that even early
feminism relied upon.655 Queer theory argues that the Legal Postulate's foundation is not just
male, but heteronormative.656 It is built on the unstated axiom that "man" and "woman" are
stable, natural, biological categories and that the heterosexual family is the "natural" unit of
society.657 Butler's concept of performativity argues that gender is not an internal "is" but a
"doing", a set of social-legal scripts we are forced to perform.658

In the Indian context, this "deconstructive jurisprudence" was actualized in Navtej Singh

649
See Haidt, supra note 6, at 55.
650
See Robin West, Jurisprudence and Gender, 55 U. Chi. L. Rev. 1, 3 (1988).
651
See Catharine A. MacKinnon, Toward a Feminist Theory of the State 160 (1989).
652
Id.
653
See Catharine A. MacKinnon, Only Words 10 (1993).
654
See MacKinnon, supra note 651, at 162.
655
See Butler, supra note 622, at 10.
656
See Michael Warner, Introduction to Fear of a Queer Planet: Queer Politics and Social Theory vii (Michael
Warner ed., 1993).
657
Id.
658
See Butler, supra note 622, at 25.

90
Johar v. Union of India (2018).659 The Supreme Court utilized the concept of "Constitutional
Morality" to deconstruct the "Public Morality" (the mob/convention) that criminalized
homosexuality.

The judgment explicitly engaged in a Derridean dismantling of the "natural/unnatural" binary

found in Section 377 of the IPC.660 By ruling that "social morality" or the "sentiment of the
majority" cannot trump the fundamental rights of the "discrete and insular minority," the
Court in essence used the Legal Postulate’s "Reason" to protect the subaltern from the
"Conventional-rigid Conscience" (as defined in Chapter 2).661 This demonstrates that while
the Postulate can be jurispathic but when aligned with Critical Theory, it possesses the
capacity to be "emancipatory" by deconstructing the prejudices ingrained in the "common
sense" of the populace.662

Together, these theories are the academic voice of the subaltern. They expose the "universal,"
"rational" Legal Postulate of Chapters 1 and 3 as, in reality, a particular, political, and
contingent Postulate. As per the postmodern deconstruction, it is the Postulate of the white,
straight, propertied man, which it has successfully "naturalized" (as Foucault would say) as
"common sense" or "Justice" itself.663

5.5 THE NEW DISSONANCE: WHEN CRITIQUE BECOMES A POSTULATE

Herein lies the central paradox of the "contemporaneous developments" here raised. What
happens when these critical, deconstructive theories move from being a method of insurgency
to becoming a new, hegemonic Postulate within the academy, media, and even law?.664

This is the source of the "hot topics" and culture wars of the present.665 The postmodern turn,
in its success, has generated its own "Axiomatic Stops." These new axioms, often grouped
under the umbrella of "Critical Social Justice" or "Identity Politics," include:

● Standpoint Epistemology: The axiom that one's "lived experience" as a member of an

659
Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
660
Id.
661
Id.
662
See Upendra Baxi, Constitutionalism as a Site of State Formative Practices, 21 Cardozo L. Rev. 1183, 1190
(2000).
663
See Foucault, supra note 11, at 131.
664
See Helen Pluckrose & James Lindsay, Cynical Theories: How Activist Scholarship Made Everything about
Race, Gender, and Identity—and Why This Harms Everybody 20 (2020).
665
Id. at 25.

91
 oppressed group (the subaltern) grants a privileged, unassailable form of knowledge.666
● Identity as the First Principle: The axiom that identity (race, gender, sexuality) is the
primary lens through which all social and legal phenomena must be analyzed.667
● Power as the Only Motive: The axiom that all social interactions, legal arguments, and
truth claims are reducible to "power," "privilege," and the maintenance of hegemony.668

This "Critical Postulate" now faces the same Münchhausen Trilemma from Chapter 1. When
challenged, its final justification is an Axiomatic Stop on "lived experience," which is just as
"mystical" or "unfounded" to an outsider as the "Will of God" or the "Categorical
Imperative."669

This creates a new and complex dissonance. The "Public Conscience", the intuitive "man in
the Clapham omnibus" (Devlin) from Chapter 3, is now caught in an ambiguous state.670

He is still alienated by the Old liberal-secular-paternalistic Postulate which tells him his
moral intuitions about life and sanctity are "irrational”, and the Postulate is here to help him
to attain the enlightenment of the Postulate.671

He is also alienated by the New Critical Postulate (for example, an academic

deconstructionist) which tells him his "common sense" intuitions are "bigoted," "privileged,"
or products of "false consciousness”.672

Furthermore, the total negation and highly subjective culture of postmodernism can be an
unworkable movement in the long run.673 All the customs and cultures essentially run on
some meta-narratives and arrangements, also by ensuring the sanctity of such.

5.6 CONCLUSION: THE MULTIPLYING OF POSTULATES

The postmodern turn was a seminal academic development that shattered assumptions rather

666
See Sandra Harding, The Science Question in Feminism 20 (1986).
667
See Kimberlé Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against
Women of Color, 43 Stan. L. Rev. 1241, 1242 (1991).
668
See Foucault, supra note 11, at 93.
669
See Albert, supra note 16, at 16.
670
See Devlin, supra note 37, at 15.
671
See Hart, supra note 511, at 50.
672
See Pluckrose & Lindsay, supra note 664, at 50.
673
See Jürgen Habermas, The Philosophical Discourse of Modernity 300 (Frederick G. Lawrence trans., MIT
Press 1987).

92
than resting debates on second principles, and was critical in showing the mirror to many
supremacist postulates.674 It provided the subaltern "Public Conscience" with the theoretical
tools (deconstruction, metanarrative critique) to finally dismantle the false universality of the
"neutral" Legal Postulate, exposing its hidden (male, white, heteronormative) axioms.675 It
was, in short, the elephant's (Haidt) long-awaited revenge on the rider.

However, this insurgency did not solve the dissertation's posited problem of justification or
Münchhausen Trilemma, albeit it was instrumental in telling the world the foundations are
weak.676 Critics could argue that it merely replaced one set of concealed axioms with another.
It may be further contended that, by creating a new "Critical Postulate" grounded in the
"Axiomatic Stop" of identity and lived experience, it has not ended the dissonance between
the Postulate and the Conscience, it has multiplied it.677 Explorations grounded in the
unfettered subjectivity can be an unworkable model in the long run.678

The "Problem of Legitimacy" in the 21st century is therefore more fractured than ever,
especially reading from the concepts of hyper-reality and desensitization.679 The Public
Conscience is no longer facing a single, unified "Legal Postulate." It now has to face the
existential dilemma raised by a disorienting, multi-front war between the old axioms of
Liberalism and the new axioms of Critical Theory, all of which claim rational authority and
none of which, as the Münchhausen Trilemma proved, can ultimately ground their own
authority.680 The Münchhausen Trilemma is still to be answered.

674
See Best & Kellner, supra note 633, at 20.
675
See Spivak, supra note 9, at 280.
676
See Albert, supra note 16, at 18.
677
See Pluckrose & Lindsay, supra note 664, at 200.
678
See Habermas, supra note 673, at 310.
679
See Jean Baudrillard, Simulacra and Simulation 10 (Sheila Faria Glaser trans., Univ. of Mich. Press 1994)
(1981).
680
See Albert, supra note 16, at 16.

93
CHAPTER 6: A WAY FORWARD? EPISTEMIC HUMILITY
AND LEGAL PLURALISM

6.1 INTRODUCTION: THE IMPASSE OF LEGITIMACY

The trajectory of this dissertation has thus far covered a terrain of several conflicts. We have
identified the "Legal Postulate" as a system of rationalized authority that, to escape the
Münchhausen Trilemma, relies on concealed "Axiomatic Stops".681 We have contrasted this
with the "Public Conscience," a fractured, intuitive, and often subaltern epistemology that
works on a logic of "seeing-that" rather than an absolute "reasoning-why".682 We have passed
the critiques that the dominant Liberal Postulate exercises "epistemic violence" against this
Conscience through paternalism and secular erasure and how the Postmodern turn, while
providing a vocabulary of resistance, has arguably resulted in a fragmentation of truth claims
rather than a resolution.683

We arrive, therefore, at an impasse of legitimacy.684 The Modern State cannot abandon the
"Legal Postulate"; to do so would be to surrender to the caprice of the "mob" or the
unmitigated relativity of the "nihilist."685 Yet, it can no longer claim to rule by a singular,
universal "Reason" without being exposed as an agent of hegemony.686 The dissonance
between the law's truth and the people's truth has rendered the legal system "efficient" but
"illegitimate."687

This chapter argues that the only way out of this impasse is not essentially a victory of one
side, but a fundamental restructuring of how they relate.688 It proposes a shift from Juridical
Monism (the belief in one single, state-centric source of valid law) to Legal Pluralism (the
recognition of multiple, overlapping normative orders).689 Furthermore, it argues that the
ethical prerequisite for this shift is the cultivation of Epistemic Humility, the institutional

681
See Albert, supra note 16, at 16.
682
See Haidt, supra note 6, at 55.
683
See Habermas, supra note 287, at 98
684
See Gunther Teubner, Law as an Autopoietic System 3 (Zenon Bankowski ed., Anne Bankowski & Ruth
Adler trans., 1993).
685
See Nietzsche, supra note 105, at § 2.
686
See Gramsci, supra note 48, at 246.
687
See Habermas, supra note 287, at 105
688
See Chantal Mouffe, Agonistics: Thinking the World Politically 7 (2013).
689
See John Griffiths, What Is Legal Pluralism?, 24 J. Legal Pluralism & Unofficial L. 1, 12 (1986).

94
acknowledgement of the "mystical foundation" of one’s own authority.690

6.2 THE VIRTUE OF EPISTEMIC HUMILITY: DESTIGMATIZING THE AXIOM

If the central finding of Chapter 1 was that all systems of justification eventually hit an
"Axiomatic Stop" (the Münchhausen Trilemma), then the central error of the Modern Legal
Postulate is not that it has an axiom, but that it denies it.691 By claiming its authority rests on
objective "Science," "Nature," or "Pure Reason," the Postulate positions itself as the only
valid way of knowing.692 This renders all other epistemologies (religious, customary,
indigenous) as "superstitious" or "irrational."693

Epistemic Humility is the philosophical correction to this arrogance. It is the institutional

acceptance of the limits of one's own knowledge.694

● The Popperian Shift: Drawing on Karl Popper’s philosophy of science, legal

epistemology must move from "verification" (proving we are right) to "falsifiability"
(admitting we might be wrong).695 A "humble" Postulate acknowledges that its "Harm
Principle" or "Secularism" are not universal laws of physics, but chosen cultural
narratives, useful fictions that serve specific ends.696
● The Equality of Axioms: Once the Legal Postulate admits its own foundation is
"mystical" (Derrida), it loses the moral high ground to dismiss the Public Conscience.697
If the Liberal Axiom ("Individual Autonomy") is unproven, and the Religious Axiom
("Divine Duty") is unproven, they stand on an epistemologically level playing field.698
From this inception, they are different choices, not a debate of truth vs. error.

This does not mean the State must abdicate its laws. It means the State must enforce them
with a "spirit of hesitation" rather than a "spirit of infallibility."699 It opens the door for the
State to say: "This is our law, not because it is Absolute Truth, but because it is the agreed-
upon procedural compromise and consensus”.700

690
See Derrida, supra note 19, at 943.
691
See Derrida, supra note 19, at 943.
692
See Foucault, supra note 11, at 93.
693
See Santos, supra note 8, at 136.
694
See Jeremy Waldron, Law and Disagreement 10 (1999).
695
See Popper, supra note 26, at 93.
696
See Yuval Noah Harari, Sapiens: A Brief History of Humankind 30 (2014).
697
See Derrida, supra note 19, at 943.
698
See MacIntyre, supra note 13, at 69.
699
See Learned Hand, The Spirit of Liberty 190 (Irving Dilliard ed., 3d ed. 1960).
700
See Luhmann, supra note 333, at 25.

95
6.3 ROBERT COVER AND THE "JURISPATHIC" STATE

To understand how a Humble Postulate might work, we must turn to the seminal work of
Robert Cover. In his essay Nomos and Narrative, Cover distinguishes between two types of
legal creation:701

1. Paideic (World-Creating): This is the law generated by communities (the Public

Conscience). It is rich in meaning, ritual, and shared commitment. It is "Juris-
generative"; it creates legal meaning.702
2. Imperial (World-Maintaining): This is the law of the State (the Legal Postulate). Its
primary function is to manage and control.703

Cover argues that the modern state is fundamentally "Jurispathic" (law-killing).704 When the
State encounters the rich, diverse laws of the Public Conscience (for example, a religious
school's internal code, an indigenous dispute resolution mechanism), it kills them to assert its
own supremacy.705 It imposes a "monopoly on violence" not just in the physical sense, but in
the hermeneutic sense.706 It demands a monopoly on interpretation, rather than showing its
epistemic humility to empathize with the other.

The Way Forward: A pluralist approach requires the State to curb its "jurispathic"
tendency.707 Instead of rushing to "kill" the alternative law of the Conscience (via the
"reformations" or "Paternalism"), the State should act as a negotiator between valid
normative worlds.708 The goal is to maintain the "richness" of the Nomos while not falling
into the worst excesses of the Mob or the chaos stemming from its fallibilities.

6.4 BOAVENTURA DE SOUSA SANTOS: THE ECOLOGY OF KNOWLEDGES

If Cover provides the legal framework, sociologist Boaventura de Sousa Santos provides the
epistemological tool. Santos critiques Western rationality for creating an "Abyssal Line”.709

● This Side of the Line: "Valid" knowledge (Science, State Law, Philosophy).
● The Other Side of the Line: "Invalid" knowledge (Indigenous wisdom, religious

701
See Cover, supra note 18, at 12.
702
Id.
703
Id. at 13.
704
Id. at 40.
705
Id.
706
Id.
707
See Paul Schiff Berman, Global Legal Pluralism: A Jurisprudence of Law Beyond Borders 10 (2012).
708
See Santos, supra note 8, at 212.
709
Id. at 118.

96
 intuition, subaltern "seeing-that").

Anything on the "other side" is not just considered wrong but it is considered non-existent or
incomprehensible.710 This mirrors the exclusion of the Subaltern analyzed in Chapter 2.

6.4.1 The Solution: Diatopical Hermeneutics

Santos proposes an "Ecology of Knowledges".711 This approach recognizes that the Legal
Postulate’s logic is incomplete. It can be excellent at managing contracts and individual rights
(Market/State logic), but at the same breath can be terrible at managing community cohesion,
sanctity of the cultural artifacts, or ecological duty (Community logic).712

Diatopical Hermeneutics is the art of translation between these incompletes.713 It is a dialogue

where the Legal Postulate admits: "I have a concept of Human Rights, but it lacks a
dimension of Duty." And the Public Conscience admits: "I have a concept of Duty, but it
lacks elements of Individual Freedom."714 Through this admission of incompleteness
(Humility), a hybrid legal consciousness can emerge from the space of transparency it
produces. One that translates "Human Rights" into the local vernacular of the cultures
without destroying either.715

6.5 GUNTHER TEUBNER: AUTOPOIETIC PLURALISM AND "LOOSE

COUPLING"

A critic might argue that this "dialogue" is utopian. How can a secular court truly "talk" to a
religious conscience? They speak different languages. Systems theorist Gunther Teubner
offers a realistic model: Autopoietic Pluralism.716

Teubner argues that modern society is fragmented into closed systems (Law, Religion,
Economy, Politics), each with its own binary code (Law: Legal/Illegal, Religion:
Sacred/Profane).717 These systems cannot truly "understand" each other. When the Law tries
to regulate Religion, it inevitably "misreads" religious acts as legal acts (as seen in the ERP

710
Id.
711
Id. at 190.
712
Id.
713
See Raimon Panikkar, The Intratextuality of the Sacred, in Myth, Faith and Hermeneutics 4 (1979).
714
See Santos, supra note 35, at 39.
715
Id.
716
See Teubner, supra note 684, at 70.
717
See Niklas Luhmann, Social Systems 45 (John Bednarz, Jr. & Dirk Baecker trans., 1995).

97
test).718

6.5.1 The Way Forward: "Structural Coupling"

Instead of trying to force Conscience into the "Iron Cage" of the Postulate (Integration), or
ignoring it completely (Separation), the State should aim for "Loose Coupling."719 The Legal
Postulate should establish procedural frameworks that allow the Public Conscience to
regulate itself, subject to extreme outer limits.720

● Reflexive Law: Instead of dictating what the outcome must be (Substantive Law), the
State dictates how the community should decide (Procedural Law).721
● Example: Instead of imposing a specific personal code on all the communities
uniformly, the State can mandate that the communities must not prevent the individual’s
right to follow the code. This helps the "Conscience" to maintain its structure while the
dissenters are protected by the state machinery.

6.6 THE FALLACY OF FORCED CONSENSUS: AGAINST PERENNIALISM AND

THE "SAMENESS" MYTH

A significant danger in proposing a "pluralist" Legal Postulate is the temptation of Forced

Perennialism. This is the well-intentioned but logically fallacious assumption that all Public
Consciences, deep down, share the same fundamental truths, that "all rivers lead to the same
ocean.”722 This dissertation rejects such an assumption as a form of epistemic flattening. To
demand that distinct "Axiomatic Stops" align is to disrespect the specific, absolute nature of
their “truth claims”.723

6.6.1 The Reality of Ontological Contradiction

We must start with the "default assumption" of difference. The Public Conscience is not
merely "diverse"; it is often mutually exclusive.724

● The Atheist/Theist Binary: The Atheist Conscience does not merely "prefer"
secularism; it holds the axiomatic belief that Religion is a delusion, a falsehood, or a
cognitive error. Regardless of the potential offensiveness to religious communities, it is
718
See Teubner, supra note 684, at 75.
719
See Gunther Teubner, Constitutional Fragments: Societal Constitutionalism and Globalization, 10 (2012).
720
Id.
721
See Gunther Teubner, Substantive and Reflexive Elements in Modern Law, 17 Law & Soc'y Rev. 239, 240
(1983).
722
See Stephen Prothero, God Is Not One: The Eight Rival Religions That Run the World 2 (2010).
723
Id. at [Link]. at 5.
724
See MacIntyre, supra note 13, at 69.

98
 their first principle. It is not prudent to force them toward a perennialist viewpoint to
appease the populace. Conversely, the Theist Conscience holds that the Atheist is
fundamentally severed from the source of Being.725 To tell these two that they are
"basically saying the same thing" is to insult the intelligence of both.
● Inter-Religious Negation: Similarly, distinct religious traditions often explicitly negate
one another. A strict Monotheism (for example, Tawhid in Islam or Jewish concept of
God) axiomatically rejects Polytheism as sacrilege (associating partners with God).726
These are not minor "cultural flavors", they are in itself logical contradictions. If
Proposition A ("There is only one God") is true, Proposition B ("There are many Gods")
must be false.727

6.6.2 The Fallacy of "Forced Perennialism"

The State (the Legal Postulate) often attempts to manage this friction through Syncretism,
forcing a narrative that "all religions teach peace/love/truth."728 While politically convenient,
this is a logical fallacy. It solves the conflict by destroying the content. By claiming that the
differences don't matter, the State effectively creates a new, watered-down "Civil Religion"
that no devout believer actually practices in reality.729 And such may risk turning into a
censorship of the first principles and the right of the individuals to maintain objectivity.

6.6.3 The Dignity of Disagreement: Tolerance as Endurance

The "Way Forward," therefore, is not to seek a consensus of belief rather a consensus of
coexistence. This requires a re-definition of Tolerance.730

● Tolerance is not Acceptance: In the modern liberal lexicon, tolerance is often conflated
with "celebration" or "validation."
● Tolerance is Endurance: True tolerance (from the Latin tolerare, to bear/endure) is the
capacity to sustain civic peace with an Other, whose beliefs you honestly find
demonstrably false or even morally perilous.731

We must reach a stage of "Agreeing to Disagree", not as a mere cliché but as a rigorous

725
See Dawkins, supra note 185, at 31.
726
See Ismail Raji al-Faruqi, Al-Tawhid: Its Implications for Thought and Life 10 (1982).
727
See Prothero, supra note 722, at 10.
728
See John Gray, Black Mass: Apocalyptic Religion and the Death of Utopia 35 (2007).
729
See Robert N. Bellah, Civil Religion in America, 96 Daedalus 1, 3 (1967).
730
See John Gray, Two Faces of Liberalism 2 (2000).
731
Id. at 5.

99
political normative rule.732

● The Default Assumption: The new Legal Postulate must assume that deep,
irreconcilable differences are the baseline of society, not a problem to be "fixed" or
"educated away."
● Non-Partisan Disagreement: This "Hard Pluralism" asserts that believing the Other is
wrong does not necessitate treating the Other as an enemy.733 We can maintain the
absolute integrity of our own "Axiomatic Stop" (for example, "My God is the only
Truth" or “belief in God is without any empirical evidence”) while simultaneously
accepting the "Civic Contract" that prohibits us from enforcing that Truth via
violence.734

This mirrors Jonathan Sacks’ concept of the "Dignity of Difference”.735 Peace is not achieved
by pretending we are the same; rather, it is achieved by creating a legal framework strong
enough to contain our non-negotiable differences. The dissonance ultimately will not
diminish, but it is "defaultly assumed" and tolerated.736 This helps the Conscience and
Postulate to strip it of its kinetic and partisan potential.

6.7 MODELS OF ENGAGEMENT: FROM VERDICT TO CONVERSATION

Moving from theory to practice, how does this "Epistemic Humility" manifest in actual
jurisprudence? We can identify three emerging models that offer an alternative to the binary
"Strike Down / Uphold" mechanic of the traditional Postulate.737

6.7.1 The Margin of Appreciation

Originating in the European Court of Human Rights (ECtHR), this doctrine allows for a
"buffer zone" of interpretation.738 It recognizes that there is no single, universal answer to
questions of morality (for example, presence of religious symbols in schools).739 It grants the
local "Public Conscience" (the member state) the latitude to assess the tension between the

732
See Jonathan Sacks, The Dignity of Difference: How to Avoid the Clash of Civilizations 10 (2002).
733
See Mouffe, supra note 688, at 15.
734
See Gray, supra note 730, at 20.
735
Sacks, supra note 732.
736
See Gray, supra note 730, at 25.
737
See Mark Tushnet, Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative
Constitutional Law 10 (2008).
738
See Handyside v. United Kingdom, 24 Eur. Ct. H.R. (ser. A) at 23 (1976).
739
See Lautsi v. Italy, 2011-III Eur. Ct. H.R. 61.

100
Right and the Interest, provided the "Minimum Core" of the right is preserved.740 This is a
judicial formalization of Humility. This is an admission that it does not possess the local
knowledge to dictate a uniform standard, which otherwise would be always arbitrary.

6.7.2 Dialogic Judicial Review

Common in Canada and South Africa, this model rejects the "Final Word" syndrome.741
When a court finds that a statute or custom violates the Constitution (the Postulate), it does
not simply strike it down. It issues a declaration of invalidity but suspends it, sending the
issue back to the Legislature or the Community.742 This initiates a "dialogue". It forces the
Public Conscience to provide a "reasoning-why" for its "seeing-that” and it forces the State to
listen to the specific context of the custom.743 It doesn't see the Constitution or the law as a
wall, but as a bridge for negotiation.

6.7.3 Constitutional Demosprudence and Cognitive Justice

The concept of "Transformative Constitutionalism" which was a theory of reforming the

cultures from within ultimately falls into a trap of pedagogical violence, the idea that the
Constitution is a tool for the "Enlightened" State to "teach" or "reform" the "Backward"
Public.744 This view remains logocentric as has already been established in the dissertation. It
validates the Public Conscience only when it can quote a "progressive" scripture (like Bhakti
poetry or Mutaziliyyah tradition) to justify itself.745

To escape this logocentrism, we must turn to the concept of Demosprudence (coined by Lani
Guinier and expanded by Upendra Baxi).746 Unlike Jurisprudence (the wisdom of
judges/texts), Demosprudence is the wisdom of the people born of and engaged with their
lived struggles.

● The Shift from Text to Suffering: Baxi argues that the legitimacy of the law in the
Global South does not come from Kelsenian norms or "rational" texts, but from the

740
See George Letsas, A Theory of Interpretation of the European Convention on Human Rights 85 (2007).
741
See Peter W. Hogg & Allison A. Bushell, The Charter Dialogue Between Courts and Legislatures (Or
Perhaps the Charter of Rights Isn't Such a Bad Thing After All), 35 Osgoode Hall L.J. 75, 79 (1997).
742
Id.
743
Id.
744
See Karl E. Klare, Legal Culture and Transformative Constitutionalism, 14 S. Afr. J. Hum. Rts. 146, 150
(1998).
745
See Spivak, supra note 9, at 285.
746
See Lani Guinier & Gerald Torres, Changing the Wind: Notes Toward a Demosprudence of Law and Social
Movements, 123 Yale L.J. 2740, 2750 (2014).

101
 "voices of suffering."747 The Public Conscience often cannot articulate a syllogistic
argument for its needs. Under Demosprudence, the State does not demand a "textual
justification" for the Conscience’s needs and pains. The acceptance of the existence of
that pain or needs are sufficient ground for legal recognition.748
● Cognitive Justice: Drawing on Shiv Visvanathan, the new Legal Postulate must ensure
Cognitive Justice.749 This goes beyond social justice (giving resources). It asserts the
right of different forms of knowledge (tribal, oral, ritualistic, non-modern) to coexist. It
rejects the idea that the "Public Conscience" must become "Scientific" or "Modern" to
be valid.750
● Survival as Legitimacy: Instead of asking "Does this custom align with Liberal Logic?"
(a logocentric question), the Humble Postulate asks, "Is this custom essential for the
community's survival and meaning-making?"751 This shifts the constitutional focus from
secular-liberal-paternalistic tendency to impose modernity to preventing cruelty,
allowing the Conscience to exist in its own ontological terms and not just as a
"reformed" version of itself.752

A precursor to this "Cognitive Justice" can be found in the Indian Supreme Court’s decision
in Bijoe Emmanuel v. State of Kerala (1986).753 Three children, Jehovah’s Witnesses, were
expelled for refusing to sing the National Anthem, though there were no allegations of
disrespect. They did not cite a specific text that explicitly forbade the anthem from the
biblical texts, but relied on their "conscientiously held belief."754 The Supreme Court, which
can be identified as a quintessential illustration of Epistemic Humility, ruled in their favor.
The Court noted that while the belief might appear "bizarre" or "irrational" to the secular
Postulate, the Court’s duty was not to audit the "rationality" of the belief but to protect the
integrity of the Conscience holding it.755 He stated, "Our tradition teaches tolerance; our
philosophy preaches tolerance; our Constitution practices tolerance."756 This judgment
represents the "Humble Postulate" which essentially allowed the other "Nomos" to survive.

747
See Upendra Baxi, The Future of Human Rights 40 (3d ed. 2008).
748
Id.
749
See Shiv Visvanathan, The Search for Cognitive Justice, 597 Seminar 1 (2009).
750
Id.
751
See Cover, supra note 18, at 15.
752
See Judith N. Shklar, The Liberalism of Fear, in Liberalism and the Moral Life 21 (Nancy L. Rosenblum ed.,
1989).
753
Bijoe Emmanuel v. State of Kerala, (1986) 3 SCC 615.
754
Id.
755
Id.
756
Id.

102
6.8 THE LIMITS OF PLURALISM: THE PARADOX OF TOLERANCE

Epistemic Humility is not epistemic anarchy.757 The "Way Forward" cannot be a slide into
cultural relativism where "anything goes." We must address Popper's Paradox of Tolerance.
If we extend unlimited tolerance even to those who are intolerant, if we are not prepared to
defend a tolerant society then the tolerance will inevitably be destroyed.758 But this necessary
evil can be also an exploitative tool as some may remain untouched, while others, particularly
subaltern, may face the full wrath of it.759

The Public Conscience, as established in Chapter 2, is capable of becoming a destructive mob

(Staub). It can create "Emergent Norms" of scapegoating and lateral violence.760

Therefore, an Humble Postulate may maintain a "Minimum Core" of non-negotiable axioms.

These are not "Truths" in the divine sense, but "Survival Conditions" for the pluralist system
itself.761 This is a pragmatic consideration, rather than a solution which passed the rigorous
epistemological standards.

● The Limit: Violence. The Postulate must remain "Jurispathic" regarding physical
violence.762 It can tolerate a "world-view" that is sexist or illiberal, but it cannot tolerate
the physical enforcement of that view on a dissenting body.
● The Distinction: The State shifts from policing morality (what you believe/value) to
policing harm (physical safety/coercion). This narrows the scope of the "Legal
Postulate" significantly saving it from the "Paternalism" of Chapter 3, but at the same
time defending the individual rights.763

6.9 CONCLUSION: THE ARCHITECTURE OF RECONCILIATION

The "Way Forward" proposed here is not a utopian synthesis where the Postulate and the
Conscience merge into a perfect unity. Such a unity is impossible given the Münchhausen

757
See Waldron, supra note 694, at 110.
758
See Karl Popper, The Open Society and Its Enemies 265 (1945).
759
See Herbert Marcuse, Repressive Tolerance, in A Critique of Pure Tolerance 81 (Robert Paul Wolff et al.
eds., 1965).
760
See Staub, supra note 15, at 15.
761
See Hart, supra note 3, at 193.
762
See Cover, supra note 18, at 40.
763
See Joel Feinberg, Harm to Others 10 (1984).

103
Trilemma; their axioms are fundamentally distinct.764

Instead, this chapter advocates for an Agonistic Pluralism (Chantal Mouffe).765 We must
accept that the conflict between the Rational State and the Intuitive Public is permanent. The
goal of the legal system should not be to end the conflict (by silencing the Conscience), but to
domesticate it.766

By adopting Epistemic Humility, the Legal Postulate steps down from the pedestal of "God-
Trick" objectivity.767 It acknowledges its own "fictional exegesis." In doing so, it invites the
Public Conscience to the table not as a "defendant" to be judged but as a "stakeholder" to be
heard.768 The dissonance will remain but at least it transforms from a destructive noise into a
productive dialogue. It establishes a system of checks and balances where the "Reason" of the
law manages the "Passion" of the people, and the "Intuition" of the people finds place among
the "Abstraction" of the law.769

764
See Albert, supra note 16, at 18.
765
See Mouffe, supra note 688, at 7.
766
Id.
767
See Donna Haraway, Situated Knowledges: The Science Question in Feminism and the Privilege of Partial
Perspective, 14 Feminist Stud. 575, 581 (1988).
768
See Gény, supra note 88.
769
See Plato, The Republic 130 (Allan Bloom trans., Basic Books 1968).

104
CHAPTER 7: CONCLUSIONS AND RECOMMENDATIONS

7.1 RECAPITULATION OF THE STUDY

This dissertation commenced with an inquiry into the intrinsic crisis of legitimacy faced by
the modern nation-state. It identified a structural problem which is defined herein as
"Epistemic Dissonance" between the formal, rationalized authority of the State (the "Legal
Postulate") and the intuitive, lived moral experience of the populace (the "Public
Conscience").770

The study conceptualized this conflict not essentially from the point of view of political
disagreements rather as a clash between two distinct epistemological systems. Through an
interdisciplinary methodology of intersections from various disciplines such as Analytical
Jurisprudence, Cognitive Psychology, and Post-Colonial Theory, the study sought to
deconstruct the assumption that the modern legal order is a product of pure and objective
Reason. Utilizing the Münchhausen Trilemma, the research attempted to demonstrate that the
Legal Postulate,much like all the theological systems it sought to replace,ultimately rests on
an unproven "Axiomatic Stop".771 It in essence is a "mystical foundation of authority" that
exhibits a performative appeal by concealing its first principles behind the veil of secular
neutrality.772

The research assessed various realms such as the cognitive architecture of the public (Haidt’s
Elephant/Rider), the sociological mechanisms of exclusion (Spivak’s Subaltern), and the
political instruments of hegemony (Gramscian consent). It critically examined how the
Liberal-Secular state employs "weak paternalism" to delegitimize alternative ways of
knowing, and how the Postmodern turn, while successfully exposing hidden hierarchies, risks
a possibility of falling into the "multiplication of postulates." Finally, in the preceding
chapter, it explored "Epistemic Humility" and "Legal Pluralism" as the only viable pathways
out of these standoffs.

7.2 KEY FINDINGS

The study arrives at the following principal findings, organized by the investigative arc of the

770
See Cover, supra note 18, at 4.
771
See Albert, supra note 16, at 16.
772
See Derrida, supra note 19, at 943.

105
chapters:

7.2.1 The Fiction of the Rational Postulate

The Legal Postulate’s claim to be a neutral, gapless system of deductive logic is a

performative fiction (Gény’s "fictional exegesis"). As evidenced by the analysis of the
Münchhausen Trilemma, the secular state creates legitimacy not by proving its first
principles, but by success in concealing them. By presenting culturally contingent choices
(such as the "Harm Principle" or "Utility") as "Science" or "Nature," the Postulate exercises
"Epistemic Violence" against competing normative orders, all the while branding the other as
"irrational" or "superstitious”.

7.2.2 The Cognitive Asymmetry of the Conscience

The dissonance between Law and People is both structural and ideological. The Legal
Postulate operates on "System 2" logic ("reasoning-why"), which demands complex
justifications for validity. The Public Conscience, however, works on "System 1" logic
("seeing-that") guided by moral intuitions of sanctity, loyalty, and fairness. The legitimacy
crisis can be complicated by "Moral Dumbfounding" where the Conscience believes a law is
unjust but lacks the 'rider’s' vocabulary to translate their vernaculars into adequate 'reasoning-
why' logic.

7.2.3 The Failure of Paternalism and the Postmodern Trap

The study found that "weak paternalism" serves as the primary instrument of Liberal
Imperialism. By framing the Conscience’s culturally or religiously grounded choices as "non-
voluntary" (Feinberg), the State colonizes the "lifeworld" of the subaltern. Furthermore, the
investigation into the Postmodern Turn may raise a paradox: while Deconstruction provided
the subaltern with tools to dismantle the Postulate's false universality, it can ultimately result
in a "multiplication of postulates" (Identity Politics). Postmodernism may deepen the
dissonance rather than resolving it.

7.2.4 The Necessity of Epistemic Humility

The pivotal finding, elaborated in Chapter 6, is that the "Jurispathic" (law-killing) nature of
the modern state is unsustainable. A legitimate legal order cannot exist by annihilating the
"Paideic" (meaning-creating) laws of the community. Legitimacy is not restored by
eliminating the axiom, but by destigmatizing it. By admitting that its authority rests on a

106
"mystical foundation" rather than absolute truth, the State opens the door to "Agonistic
Pluralism”.

7.3 HYPOTHESIS VALIDATION

The hypothesis established in Chapter 1 was:

"The dissonance between the Legal Postulate and the Public Conscience cannot
be resolved by the victory of one over the other, but only if the Legal Postulate
undergoes a process of 'Destigmatizing the Axiom' and moves from 'Imperial
Command' to 'Agonistic Pluralism'."

This hypothesis is VALIDATED by the study.

● Rejection of Monism: The analysis of "Epistemic Credulity" and "Propaganda"

confirmed that attempting to force the Public Conscience into total submission to the
State’s logic results in either "Propaganda-induced apathy" (The Bystander Effect) or
"Reactive Dissonance" (The Mob).
● Validation of Pluralism: The theoretical application of "Epistemic Humility"
demonstrates that acknowledging the limits of legal reason,such as admitting that the
Law is a "useful fiction" rather than "Absolute Truth",creates the necessary space for the
Public Conscience to coexist with the State.

7.4 RECOMMENDATIONS: TOWARD A JURISGENERATIVE ORDER

To transition from a "Jurispathic" state to a "Jurisgenerative" order, this dissertation proposes

the following normative framework, by furtherance from the insights of Santos, Teubner, and
Cover:

7.4.1 Adjudication: Diatopical Hermeneutics

Judicial bodies must move beyond rigid, logocentric tests (like the "Essential Religious
Practices" test) which impose a rationalist/textualist ontology on fluid cultural practices.
Instead, courts should employ Diatopical Hermeneutics (Santos), a translation service
between the Topoi of Human Rights and the Topoi of Tradition (for example
Dharma/Ubuntu). The goal should be to find isomorphic equivalents that honor the dignity of
both systems instead of making one speak the language of the other.

107
7.4.2 Legislation: Reflexive Law and Loose Coupling

Following Teubner’s model, the State should abandon the attempt to micro-regulate the
moral life of communities (Integration). Instead, it may adopt "Loose Coupling". The State
should set broad procedural parameters (for example, "Decisions must be non-violent and
allow for exit") but allow the specific substantive content to be determined by the
community’s internal Conscience. This allows the "Autopoietic" systems of religion and
culture to function without being colonized by the uniform code of the State.

7.4.3 Constitutionalism: The Margin of Appreciation

In issues of deep moral disagreement (for example, bioethics, religious symbols, definition of
family), the centralized Legal Postulate must grant a "Margin of Appreciation" to local
communities. Uniformity should not be confused with Unity. The law must tolerate a
heterogeneity in the spectrum of moral standards provided the "Minimum Core" of human
safety and non-violence is preserved.

7.4.4 Civic Ethics: Tolerance as Endurance

Policymakers and educators must abandon the fallacy of "Forced Perennialism" (the myth
that all diverse groups essentially believe the same things). The educational and legal
apparatus should instead cultivate "Hard Pluralism”, the capacity to endure the presence of an
"Other" whose beliefs one finds fundamentally wrong. This shifts the goal from "Agreement"
to "Non-violent Disagreement”. This is the most realistic point of view, as otherwise a
perennialist facade will eventually contribute to substantive chaos.

7.5 CONCLUDING OBSERVATION: RETHINKING THE 'GHOST IN THE

MACHINE' METAPHOR

The modern Legal Postulate stands at a precipice. For two centuries, it has attempted to
govern the world by denying the "ghost in the machine", the intuitive and diverse elements of
the human experience.773 This dissonance is central, especially to the thesis such as “clash of
civilizations”.774 This study concludes that the solution to the crisis of authority is not more
Reason, but more Humility. The Münchhausen Trilemma teaches us that ultimately, we all
stand on unproven ground.775 The dominant Postulate or conscience, neither can ultimately

773
See Gilbert Ryle, The Concept of Mind 15 (1949).
774
See Samuel P. Huntington, The Clash of Civilizations and the Remaking of World Order 20 (1996).
775
See Albert, supra note 16, at 19

108
disprove the other without relying on an arbitrary element.

Therefore, the future of legitimate governance lies in Epistemic Humility. It requires a State
that is strong enough to prevent violence but humble enough to admit that it does not possess
the monopoly on Truth. By destigmatizing the Axiom, we move away from a legal order
based on the "Imperial Command" of the enlightened few, toward an order of "Agonistic
Pluralism",a society that does not fear difference, but is capable of building a tolerant
ecosystem over it.

109
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II. TABLE OF AUTHORITIES (CASES & STATUTES)

Cases

● Bijoe Emmanuel v. State of Kerala, (1986) 3 SCC 615.

● Handyside v. United Kingdom, 24 Eur. Ct. H.R. (ser. A) (1976).
● Indian Young Lawyers Ass'n v. State of Kerala, (2019) 11 SCC 1.
● Lautsi v. Italy, 2011-III Eur. Ct. H.R. 61.
● Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
● S.A.S. v. France, 2014-III Eur. Ct. H.R. 341.

Statutes

● Code Civil [C. civ.] art. 4 (Fr.).

Other Sources

● Rig Veda.

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