Shreya Banchhor, Arunav Ghosh, Shauryaveer Chaudhry, Devang Pandey & Siddhi Shrivastava

Members of the Editorial Board at the Law School Policy Review — Shreya Banchhor, Arunav Ghosh, Devang Pandey, Siddhi Shrivastava, and Shauryaveer Chaudhry sit down with Professor Matthias Mahlmann, legal philosopher at the University of Zurich and visiting fellow at Oxford, for a wide-ranging conversation spanning his book Mind and Rights and his recent paper War: The Disenchantment of Law. Through an examination of lie detection and narco-analysis under Indian constitutional law, the insanity defence and the unresolved free will debate, and the treatment of psychopathy and evolving psychiatric diagnostic categories, the conversation probes what neuroscience and cognitive science can and cannot tell us about legal responsibility. Professor Mahlmann draws on the philosophy of human dignity and Kantian ethics to argue against the waivability of protections like the right against self-incrimination, before turning to the entangled questions of moral universalism, colonial relativism, and Ambedkar’s anti-caste politics — situating the drafting history of the Universal Declaration of Human Rights and the contributions of Global South thinkers against charges that human rights remain a colonial imposition. The episode moves into the normative stakes of the war in Ukraine and the prohibition on the use of force in international law, the structural critique of institutions like the International Criminal Court, and closes with Professor Mahlmann’s reflections on his intellectual biography, his engagement with India and NLSIU, and his conviction that moral agency and human dignity are recognised through lived experience rather than theory alone.

LISTEN TO THE PODCAST

Shreya Banchhor: Our guest today is Professor Matthias Mahlmann, and he’s a legal philosopher and a university professor at the University of Zurich. He has also been a visiting fellow at the University of Oxford. His work sits at the intersection of law, ethics, and moral psychology, and he’s one of the most serious thinkers working on what law actually is when power decides to ignore it. His 2023 book, Mind and Rights, traces the history, ethics, and psychology of human rights. And today at LSPR’s interview, we are sitting here to hold a discussion on his previous works, along with his most recent work, War: The Disenchantment of Law. This paper asks us a question that’s impossible to avoid right now. When Russia invades Ukraine, when international institutions fail to stop it, does that prove that law is ultimately just a mask for force, or does it demand something else from us? So Professor Mahlmann, on behalf of the LSPR board, we welcome you.

Matthias Mahlmann: Thank you very much. Pleasure to have a conversation with you about these topics.

Arunav: So I’ll be going forward with the first set of questions. We had a few questions on the intersection of psychology and neuroscience and law, which is one of your specialties as well. So, I wanted to ask a question about lie detection in Indian law. In 2011 SAU argued that the real objection to lie detection is not per se reliability, but something more normative. The prohibition on using a person as a witness against herself. And that being rooted in a central position in human rights. Our Supreme Court in Selvi v State of Karnataka, also barred narco-analysis, polygraphy, and brain mapping, under articles 23 and 21 of the fundamental rights, but Selvi drew the line at admissibility and left a consent exception. So, if an accused was consenting, they could be subjected to the test. On your account, should the objection reach the investigative use of these techniques at all before any question of evidence arises? And can consent ever really cure the problem given the conditions under which a suspect consents?

Matthias Mahlmann: Well, I think the answer to the question is, as far as I’m concerned, pretty clear, namely, first, yes, and second, no. I think it’s entirely correct to ban something like lie detection. I don’t think you should be able to waive that prohibition by consent. And the reason is something that I think is also at the bottom of the Indian reasoning by the Supreme Court, namely the idea of human dignity, which is included in the fundamental rights consideration by the extensive interpretation of the right of life under the Indian Constitution. And I think my knowledge of the case law of the Supreme Court in India indicates that they are also doing something that you find in many jurisdictions around the world, namely, to argue with the subject status of an individual, with the idea that you are not allowed, if you want to respect human dignity, to objectify or instrumentalize a human being. So, if you want to put it in classical philosophical terms, you shouldn’t use any human being summarily as a means, but always as an end. That is the formulation that Immanuel Kant, a German philosopher in the 18th century, used to depict this idea. It is pretty important to remember that that was not an invention of Kant, but basically the reformulation of something that you find again and again in the history of ideas and ethics, and also in the natural law tradition. So, it’s a very fundamental intuition. And as you mentioned my interest in cognitive science, there are even indications, and I think pretty good and hard empirical evidence, that this intuition has deep roots in our moral cognition, which is an interesting perspective to freely frame the whole debate. But for all legal purposes, it seems pretty clear that that’s an important principle. And it seems to follow from that, that you can’t force somebody to incriminate him or her or their self. And if you can’t force someone to do that, because then you use somebody as a means to basically bear witness against that person, it seems clear that also lie detection is out of the question. And that is the standard that you also find in Europe under European human rights law, even though not, for example, in American constitutional law, as you know. So that would be the answer to the first question.

Second question: can you waive this prohibition? Can you just consent to being submitted to lie detection? Well, I would say no, because the point of such protection is that you can’t put pressure on a person and that you can’t draw any kind of negative conclusion about not consenting to submit yourself on lie detection. If you say you can consent to it, there will be suspicion in the air that if you don’t submit yourself to the lie detection, you have something to hide. So, that is, I think, something that the law often does also in other contexts. It creates protective norms that you cannot derogate from and that can’t just be invalidated by consent. That’s the idea of Jus Cogens, of some norms that are really those that are enforced in any context. We even have that in labour law, for example, certain protective norms and so on. And I think it should be even more so the case in criminal law.

Arunav: Just a short follow-up question on that. So, when you’re talking about these three technologies, we’re still talking about technologies that are not fairly recent, but you know, there’s emerging litigation around whether a person’s perhaps private conversations with a generative AI would be admissible evidence in trials, etc. And the reason this question comes up is because a parallel example would be a person’s conversation with their therapist or their mental health practitioner, which would not be considered admissible evidence because of the protection that those kinds of relationships give you. But in terms of discovery and new forms of evidentiary technology for going through discovery, what do you think should be the applicable standard to such conversations, etc., which are happening with a non-human interlocutor in such a context?

Matthias Mahlmann: Well, I think it’s a variant of a standard problem, that is like Google searches: somebody kills the wife and has before searched the most efficient forms of poison. And that is something that is considered in evidence, obviously. Even before our digital age, the classical examples were personal diaries. So, to which degree can you use them as evidence? And in European systems, you have basically a balancing approach. So, an assumption that you should be able to have certain private spheres, including what you entrust to your diary in some way or another. But that this has limits and depends on the severity of the crime that is prosecuted. And then this protection of your privacy may have to cede to this other consideration. And I think that kind of dealing with these matters seems to me basically on the right track, so that we basically accept that we should protect a certain area where people can feel that they will be left alone. And on the other hand, are aware that there are very severe crimes where some other considerations may be relevant.

Arunav: Moving forward in this vein, I wanted to talk about free will and the insanity defence. If you claim that there is no successful deterministic theory of volition, the law keeps good reasons to build its normative edifice on human responsibility instead. But Indian law still runs the M’Naghten-derived insanity test. The old Section 84 standard is now carried forward into the new criminal laws, which turns on whether the accused knew the act was wrong. How does your anti-determinist position interact with this position of the law, especially in cases where neuroscientific testimony is offered, etc.

Matthias Mahlmann: Well, I think the question of free will and insanity is a very fundamental one, or an old one, and certainly an entirely unresolved one. There are lots of theories, I would say. Every year a few books are published who claim to have solved this problem, but I regularly follow the debate, and I don’t feel anybody really thinks the problem has been solved. So, as you said, I don’t find determinist or compatibilist theories very convincing. I think there’s a case for what is traditionally called free will, autonomy, and therefore also responsibility for what we do. That is the basis for the ascription of responsibility in criminal law, and the whole machinery of sanctions doesn’t make any sense as far as I’m concerned, if you don’t think there is genuine responsibility for your acts. And that means that you are in control of them, at least potentially in control of them under normal circumstances, and that you are basically able to cause them. So, there is something that is called mental causation, that the decisions, the thoughts you have can actually change something in what we call the external world, e.g., by pulling a trigger when you intend to kill somebody. So that’s a background fundamental question that is controversial. There are people who tell us that even if you don’t believe in that kind of free will, you can still make sense of criminal law. I’m not convinced that works. But your question, I think, points in another direction, namely, how does the law and the institutions of the law react? And how do they deal with the many problems in practice to really assert whether somebody acted voluntarily or not, responsibly or not. And I think part of the discussion, and also the M’Naghten test that you mentioned, is not merely based on some kind of metaphysical assumption, but also on practicalities of providing desirable proof that something like that happened. I don’t want to get now into the details of that particular test and whether it is entirely convincing or not. But I think just structurally, theoretically, one has to understand that these legal tests are not just metaphysical philosophical statements, but also the product of such secondary considerations, e.g., how to actually meet the burdens of proof in the concrete settings of a criminal law proceeding. In European criminal law settings, continental settings, you usually have two criteria: you have knowledge of what you were doing and that you were doing something wrong, and the ability to act according to your knowledge, which is interesting also for certain cases of pathology, because these two pillars of legal responsibility may be disconnected in a concrete case.

Devang Pandey: Now that we’ve covered insanity, we will make a slight shift towards psychopathy, and though it has its own medical dimensions as well, the reason we arrive at it is that you insist that moral judgement has a real cognitive structure and isn’t just an affect. You read psychopathy studies against the grain, suggesting the affective deficit might actually be downstream of a cognitive one. Indian law excludes psychopathy from the insanity defence because it is supposed the psychopath supposedly knows that the act is wrong. Now, if the deficit is partly a deficit of moral cognition, does this exclusion still hold? So, I want to know whether the lost confidence that the psychopath knows provides your own account of what moral knowing involves.

Matthias Mahlmann: We are now entering a difficult field, namely the diagnosis of certain mental health problems, for example, those subsumed under the general term psychopathy. So that is something, what that means, what it entails, and what the problems are, you have to ask a psychologist or psychiatrist. That is a clinical question of the diagnosis and the symptoms. And as you may have already realised while I was answering Arunav’s questions, I don’t know everything. And certainly, I’m not claiming that I’m a clinical psychiatrist or anything of that sort. So, what we can do from a legal perspective, is to think about the normative framework and then ask ourselves whether a particular pathology has normative relevance or not. And I think these two questions have to be disconnected. Having said that, let’s turn to what you said and referred to in your question, namely, the role of emotions in moral evaluation. I think there are two elements that need to be distinguished here, which may be relevant for the case of psychopaths. But as I said, that is then the secondary question, which really depends on the concrete diagnosis and the person that is concerned. The first element important here is that emotions are important to understand what is at stake in a particular case you are evaluating in moral terms. So, if I don’t understand, for example, what a perhaps mean joke about Spain’s draw against Cape Verde means for Shreya, because I just don’t have the emotional empathy to understand why people may evaluate my silly joke about Spain’s draw as actually something morally reprehensible. That is, of course, also true for more serious contexts. If you don’t understand, let’s say, the disregard for a member of a scheduled caste, you’re not going to understand what the moral problem in these situations is. So, emotions are very important as a heuristic, a mechanism to understand what the moral issue really is. That’s the first thing, and that can of course be impaired by some pathology, which then is something one has to consider when one talks also about sanctions. The second element is the emotional consequences of an evaluation. So, you may come to an evaluation about the justice or injustice of something, the reprehensiveness of my silly remark about Spain, or more seriously about the status of some member of a scheduled caste. And if you came to that conclusion, that certainly has some kind of emotional consequence. You may feel indignation about that remark. You may find it very inappropriate. I may feel shame after I realize that I said something wrong. But that presupposes that I understand that something is wrong. So, I think it’s very helpful to distinguish these things also when you then engage in the question, what is really the concrete consequence of a particular pathology in a specific case. And that needs to be distinguished also in the case that you are mentioning of psychopaths.

Arunav: I had a short follow-up on this question as well. So I agree that since all of us are students of the law, we lack specific diagnostic ideas. But I feel like this question is relevant given that courts are increasingly receiving neuroscientific and psychiatric evidence in cases, and also that we’re now having reasonable accommodations or creating an understanding of people with disabilities, especially invisible disabilities. So, these diagnostic criteria are also entering the language of the law in a certain way. And I wanted to ask about how the new structuring that is happening with the American Psychiatric Association with the creation of the DSM-6, which is now tending to dimensionalize these categories, and with increasing trauma-informed research, disorders like borderline personality disorder are now being reframed as adaptive responses to earlier relational trauma. If we still retain the context about the moral cognitive deficit in psychopathy, which if we see it as now downstream of developmental conditions that the state did not choose, my question is: can we still make that argument given that the deficit of moral cognition is then shaped by unchosen circumstances that the state failed to prevent, rather than just being downstream of cognitive deficits?

Matthias Mahlmann: Well, as I said, I’m a bit reluctant here to play the hobby psychiatrist or psychologist about particular mental pathologies. What is certainly true is, and that has always been the case also in the past and also part of the humanization of criminal law, that we pay close attention to possible cognitive impairments. That is, of course, particularly important for criminal law. But it also implies that we distinguish clearly between cognitive impairments that actually reduce responsibility for one’s actions and other cognitive impairments which also exist. There are reading impairments, which do not necessarily mean something for the particular action that may be the object of the evaluation in a criminal law case. I think that is very important and certainly something that has happened, that people are mindful of this. I just think how long it took, and certainly still takes, in the US for acknowledging the importance of mental impairment, or of being a minor, in the administration of very severe sanctions. So, to understand that there are people who simply have an illness and therefore need to be treated differently than by criminal sanctions is something we certainly still have to fight for.

Devang Pandey: I’ll proceed with the next question to focus on autonomy. We want to press this hinge because you defend autonomy against neuroscientists. And the Mental Health Care Act of India foregrounds autonomy, with capacity-based decisions, advanced directives, and the CRPD framework. Yet, practice routinely overrides it through involuntary admission, with capacity as the contested hinge. So, is the autonomy you defend in the free will debate the same autonomy at stake in psychiatric capacity law? To put it plainly, is your defence robust enough to do regulatory work? Or is it still a philosophical commitment looking for an institutional form?

Matthias Mahlmann: Well, I would say as a preliminary remark, criminal law is loaded with practical philosophy. So, to a certain degree, it is philosophy in disguise. It presupposes all kinds of interesting and controversial things. It presupposes obviously something very interesting about the relation of a human subject and their actions. E.g. if you now have the idea to press the button of your computer to end this session, this event in your mind can actually cause something in what we call the external world. And that is, by the way, an unexplained fact about what is going on. So criminal law is obviously loaded with that, and therefore it depends very much on background normative assumptions. That is actually true for the whole of the law. And this is why it’s so important not just to learn law by heart but really try to understand what the point behind it really is. So, I would say to your question, autonomy is certainly the basis of what we are talking about here. But to a certain degree, I think your question relates to the discussion that we had before about what the law does then in concrete contexts, and how certain particular contexts operate with ideas like autonomy. And in these contexts, I refrain from commenting on the very specific Indian example that you gave, because I think that is, again, beyond the scope of what I should do here. This idea of autonomy, and the things that we discussed before, should be something like a critical, normative yardstick for the practical implementation and operationalization of these ideas. And that leads, obviously, to many complex questions that then need to be dissected and discussed. But I think it’s crucially important to be aware of some background normative framework and ideas within which we construct the law, the criminal law, and should also, I think, pursue the psychiatric and psychological practices that we establish.

Arunav: My question was on universalism and colonial inheritance, and the second part of that specifically focused on Ambedkar’s anti-caste politics. So, I found the idea of the Grundurteile, or these foundational value judgments about altruism and justice as proportional equality being species-wide rather than culturally relative, and your refusal to locate human rights in Western traditions, calling that historical amnesia, particularly interesting. And I’ve noticed that the worry in Indian legal academia kind of runs in an opposite way, where locating such ideas in a cognitive-science universalism looks like a return to the very universal “human” that once travelled as an instrument of colonial imposition. So, what differentiates these two kinds of universalisms and how do we make that distinction clear?

The second question is that Dr. B. R. Ambedkar also treats the annihilation of caste and commitment to equality as foundational, and not as a concession bargained from interest, which reads quite similar to your claim of proportional equality as a Grundurteil. Do you also see Ambedkarite anti-caste normativity as practical reason naming such an injustice? Does mentalism give anti-caste claims a grounding that avoids both divine sanction and mere social construction — one that says caste hierarchy fails by reason itself rather than by one tradition’s rights against another’s?

Matthias Mahlmann: That’s a very interesting and I think important question also for our current political situation and for world affairs. Because I think one central question we all have to ask and think closely about is whether we want to live in an antagonist, tribalist world, or whether we want to live in the framework of some kind of common concept of shared humanity. And I think that’s not an ethical nicety, but it’s basically, in many ways, a matter of the survival of the species, because of the global problems that we are facing and that we need to tackle. And obviously there are bloody wars, inter-communal strife, which cost us an enormous amount of human suffering, and that’s really the background of what we are talking about.

So, you said something about colonial universalism. I have no idea what that is. I know very well that there is this discussion by certain parts of post-colonial theory, and the idea seems to be that the colonial powers had a universalist background assumption about certain norms. And that is entirely irreconcilable with the historical record. Did the British, when they thought they were entitled to colonise India, have a universalist conception about the value of all human beings, including those they colonized? Obviously not. They were of the opinion that a highly developed culture like India was inferior and rightly submitted to domination and economic exploitation. And that has nothing to do with universalism. It’s the very opposite of universalism, quite obviously. And if you think about the post-war situation, England and France, as colonial powers, tried hard not to apply the emerging human rights guarantees to all the colonial spheres. And one legal tool to achieve this was the so-called colonial exemption clause. The colonial powers tried to include that in the Universal Declaration, which wasn’t and isn’t a binding treaty, but symbolically they already wanted to make clear that the colonial territories were exempted from the implications of human rights. You have something of that sort a bit hidden in the charter of the UN. They had no success because of the considerable resistance of what is now called the Global South in the drafting process of the Universal Declaration. They were successful in the case of the European Convention on Human Rights. They included a colonial exemption clause and did not apply human rights to the colonial territories. Until internal change and the whole process of decolonization changed that, and England and France accepted the application of the European Convention to the colonial territories. That is the legal part of a gruesome practice. King Charles just went to Kenya and admitted that the post-World War II colonial rule of the British in Kenya created horrific human rights violations. So is that an embodiment of colonial universalism? It’s the opposite. It’s the manifestation of what I have called colonial relativism. The basic idea that persons like you four have less value than the British, French, or Belgian colonisers. That was the idea. And that is why I usually refer to this strange historical amnesia in theories that pretend to be critical. They overlook what really has to be criticized, namely this colonial relativism. This deep-grained, often racist assumption that people like you are not clever enough, are not autonomous enough to rule yourselves, and are therefore rightly colonized. And what an idea, isn’t it?

So that’s the first point. And the second point, why it annoys me to hear about this, and why I say colonial relativism is relevant and colonial universalism is not a very successful term, is that it basically overlooks the great contributions of people from the Global South to the development of, for example, the modern human rights culture and international law. It’s as if all these people haven’t worked hard. Some of my heroes from the drafting of the Universal Declaration were from India: Lakshmi Menon, Hansa Mehta — a great woman, who said something very important, relevant, and progressive about the rights of women, but also about the institutional makeup of human rights. And if they had had more say, if some of the European powers had not prevented them from prevailing, we would have had much stronger protection of international human rights. So, it also deprives us of the memory of the great heritage of fundamental contributions from the Global South to this whole edifice. And in a strange way, it confirms that the Global North has a monopoly on human rights and democracy, when in fact this Global North exported for centuries, and also after the post-World War II period, something very different, including all kinds of colonial dictatorships, and not democratic, human-rights-oriented regimes.

So, I think that’s very important, and that brings us to the more constructive part, about Ambedkar. I mean, he didn’t care about where the ideas came from. He was a very learned man, and I would say he didn’t learn from his studies in the US or England something about human equality and so on, but he found useful ways to express them, constitutionalize them, and perhaps felt encouraged to pursue them because he saw that these were values that people around the world were really fighting for. So that is the point. And I don’t know to which degree you engage with the work I’m producing here on these matters. My basic assumption is that all of you, all of your listeners, can autonomously understand the basic ideas of what is right and wrong and what is just. Each of you, each of your listeners, does not have to read Kant to understand these matters, but by reflecting on your life, using your conscience, your mental abilities, you are able to form these very basic fundamental normative intuitions. That, I think, is also the core of what Ambedkar did. He had experiences of injustice. And because he had that, he had also the curiosity to understand better what is going on. And I can tell you my intellectual biography starts like that. It doesn’t start by reading Kant. It started with having intuitions about justice and injustice, and intuitions about dignity and violations of dignity. Because I had that as a young person, I started to be interested in trying to understand what is actually going on. And that is something that has never left me. I still find it very interesting, not least because I don’t have so many good answers to these really hard questions. But that is, I think, the core. And I think some current theories and ideologies blind us to seeing that this is really something that connects us, that combines us, and that can also inspire us when we try to tackle these huge problems that I have mentioned.

And if I may say one more thing after my little monologue here — you asked at the beginning also about emotions and things like that. One of the things that are central here, and that was also at the core of liberation, is that we understand that we, as humans, share something. The central argument of the abolitionists against slavery was always that we share humanity. “I’m here, the enslaved person. I can think, I can feel, I love a person, I love my children, I want to do something with my life, I want to be free, I want to be able to make decisions. And that is something that I share with you, dear slaveholder, and therefore I want to get rid of my shackles.” That was true for the emancipation of women. We had to discover, sadly enough, as societies, that Siddhi and Shreya have the same mental capacities, the same sense of autonomy, the same desires to do something as the other guys on this panel here. And that is something that we also have to understand, and that again connects us. That is of course also true for the case in India, relevant to scheduled castes, “untouchables,” and the main concern that Ambedkar had, for which he did many inspiring things — not only for Indians, but for everybody who thinks that the case for equality and dignity is very strong.

Siddhi Shrivastava: Our next question is regarding legal responsibility under conditions of organised violence. If our capacity for moral judgement and norm-following has identifiable neural and evolutionary underpinnings, what follows for doctrines of legal responsibility? That is, culpability, command responsibility, the line between coercion and complicity — in precisely the settings, like atrocity and war, where that underlying capacity seems most likely to break down or be overridden.

Matthias Mahlmann: That is obviously a very serious and often tragic consideration that you are referring to. Here we basically have to distinguish the capacity of human beings to be moral agents. And I think that is something intrinsically human. That’s not something that is culturally dependent. That is something that is part of the very essence of our identity as humans. That doesn’t mean, as you alluded to, that we always live under circumstances where you can actually exercise these capacities — you may be in all kinds of horrible situations that make the exercise impossible, and may even drive you to become a guilty agent yourself, because that is just how the situation is. I think we have to acknowledge this and draw two fundamental conclusions. First, not to doubt the fundamental capability that we have, because the fact that we can’t use it doesn’t take away the capability that we have — those are two different things. So, on the contrary, I would say we should remind ourselves passionately that we are moral agents, and that we should live under conditions where we can actually exercise our moral agency. That then leads to the second conclusion, namely that we have to do something to create situations where an agent is not faced with horrible choices that may entangle them in guilt as well. And that is something we have learned in history and literature — that this happens often in dictatorships, that it happens under certain circumstances, even in gruesome places like the Nazi camps, where people are driven into action that basically makes them part of the problem, and brings them into the camp of the perpetrators, or at least the collaborators of the perpetrators, instead of being something else. But as I said, the precondition for seeing a problem here and wanting to change something about it is that you are firmly convinced that we are indeed moral agents, and not just something else — let’s say, a narrow-minded, egoistic profit maximiser.

Arunav: So, I had a chance to formulate my thoughts around your very deep response on Ambedkar. I once got to listen to Dr. Scott R. Stroud, who’s written this intellectual biography of Dr. B. R. Ambedkar, “Pragmatism in India.” He talked about how Dewey influenced Ambedkar to a large extent, and how Ambedkar understood democracy not as a form of government but as a mode of associated living. It was also Ambedkar and Dewey’s insistence that moralism should be tested against lived experience, as you were saying, rather than an abstract form of thought. My question was then: how does this interact with the idea of the Grundurteile, which is supposed to be this fixed or stable idea of morals spread across cultures, as opposed to the idea of morals or ethics being something experimental and reversible in terms of associated practice? I’m not sure if there’s a tension there, but if there is, what are your thoughts about it? And the second question — if I wanted to press on the post-colonial critique a bit — the critique perhaps might not be considered so much historical, but rather structural and institutional. Even if we have these foundational ideas of human rights, which are universal in nature and do not come from the colony, we have the bodies that enforce these ideas, like the International Criminal Court, applying them unequally, where we see a lot more people of African descent being indicted by the ICC. Does the post-colonial critique then stand as an institutional and structural critique, rather than a historical critique, of universal values that seem to come specifically out of legal theory?

Matthias Mahlmann: I would say these two legs are entirely reconcilable. The one thing is where certain basic fundamental normative intuitions come from. And to be precise, my intuition is that you, Arunav, and I, Matthias, have exactly the same value as beings — there is no relation of superiority. If you hoped to have that, I will disappoint you. I think we are just equal. So where do these intuitions come from? What are the other ingredients? And there is actually something to be found. There are anthropological assumptions, for example, that we assume that, as far as basic human characteristics are concerned, we are the same. And we imply the very basic normative principle that we should treat equal things equally, that we should evaluate equal things equally. So if we think anthropologically, we have the same normatively relevant capacities, and something like a categorical imperative of equality is a consequence. So now we come to that conclusion, and I think that is a basic intuition that Ambedkar had. When you listen to and think about the stories he told — he wasn’t able to get water from the tap without somebody helping him because he wasn’t allowed to touch the tap, as a boy. This was before he read theory. But I’m sure he had exactly the same intuition, and perhaps a deeper one, later. I would submit he read Dewey because he had this intuition, not that he had this intuition because he read Dewey. That is, I think, the baseline here. Then the question — and this is intrinsically difficult but also very important — is how to bring that into reality. And that depends on many things. You have to choose the means that are relevant here, and there are many means. To create equality in a society, you certainly need economic development, you need people who don’t starve, who can get education, who have the chance to develop themselves. That’s very important. Also, in my view, you need the law. The law can do something at the constitutional level, as a statute. The Indian Constitution is a good example of that. It won’t heal a century-old inequality easily, but it can do something. Then you get, since we are here in a legal context, into the detailed questions: Shall we have affirmative action? If so, to which degree? What are the exact rules on the burden of proof to claim discrimination on some ground? That’s a technical question. These are all things that are only relevant within the framework of this basic normative evaluation and the idea that we actually should do something about creating equality. But how to do that is the next question — and not just one question, but a whole set of questions, which are just different from this particular preliminary, fundamental starting point of the whole project, including the project of a legal system that protects equality with all the different means necessary. And choosing these means is not something you can just derive from these basic ethical premises.

The second question is about a kind of modified post-colonialism. I’m a bit wary of certain isms, even though I sometimes use them myself. I would just say, tell me what you criticise and let’s talk about it. And that is a totally different story — about having institutions that are biased, that are not applying certain norms properly and equally, problems of prosecution, and also problems of simple power. There are reasons why the International Criminal Court doesn’t prosecute many American officials. And you know why? You saw what the reaction was after they prosecuted Netanyahu and Gallant. They also prosecuted people from Hamas. I can’t say they were biased, but they tried to actually do something different, given the very nasty and far-reaching reaction on the side of the US. So I would say these institutions are naturally imperfect. They are, especially at the international level, in a very difficult power situation. And I would say what is going on doesn’t totally delegitimize the International Criminal Court. As I said, I think they have a role to play here, and indicting not only Hamas but also Netanyahu tells us something important, and puts something on the table that needs to be considered very seriously, whatever the outcome may be in such proceedings. But you’re totally right — that is a problem of legal institutions, and of course, in the context of international affairs, that there are these biases and injustices. But I think the entirely wrong conclusion that is sometimes drawn is to give up the whole system, give up the aspirations embodied in the system, and even worse, give up the main guiding normative principles like human rights, because they are not applied properly. I think the consequence must be to apply them better. And that is, I think, what serious activists, people who seriously try to do something good in this world, really try to do. And as I know, also in India, and often quite admirably so.

Shreya Banchhor: This is a question regarding your work, “War: The Disenchantment of Law.” The paper itself was written in 2023, and since then, we believe pressure has mounted on Ukraine to accept a ceasefire that effectively rewards the territorial conquest by Russia. So, from your framework, does accepting such a settlement compromise the normative foundations of international law — specifically the prohibition on aggression that you invoke — or can a compromise peace treaty still be legally and ethically legitimate in your opinion?

Matthias Mahlmann: Well, the question is, what does “compromise” mean here in this context? And that is related to what we discussed before. Does a concrete lynch murder in the vicinity of Bangalore compromise the prohibition of murder in Indian criminal law? I hope nobody says yes, in the sense that it devalues or delegitimizes the prohibition of murder. On the contrary, it makes it even more important that this kind of prohibition is taken seriously, and that we overcome all the obstacles that actually prevent the application of these norms. That is true for these cases. And we all know that even in the area of criminal law, such obstacles in fact exist, and that is even amplified on the international sphere, because clearly, we live in a world that has done something awful, and that has legitimised war. That is true for the example of Ukraine, where there is no question as to who’s the aggressor and who is simply defending itself. That is certainly also true regarding the military reaction to the horrible mass murder by Hamas on the 7th of October, on the part of Israel. And it is also true, I would submit, of the military action of the US against Iran — not because I have any sympathies for the murderous Iranian regime, but because obviously the outcome of this whole thing just proved that starting it only increased the disaster and had very severe consequences around the world. Africa and India suffered very much, in many ways, from not having fertilisers, from not having sufficient fuel. So that is a very bad thing, and I think the answer can only be to remind ourselves why the prohibition of the use of force has been made such a bedrock principle of the intended architecture of international law after World War II. I would say it certainly showed us how weak that is, how easy it is to succumb to the allure of power, but how important it would be not to succumb. And if I may say, that is something that is also in our hands. I’m not exaggerating what we can do here. You live in a country with 1.4 billion people, so you are a part of 1.4 billion people. So, I guess you don’t overestimate the importance of your actions. Neither do I, even though I’m living in a slightly smaller country. But still, at the end, it’s all of us who create the world that is around us. I may jump tonight, as I did yesterday evening, with my wife into the lake of Zurich, with clear water, no crocodiles, and have a nice swim there. But if you ask me what I would prefer to this pastime, it would be less suffering on this planet, which is so superfluous and is done for very petty pursuits. And I think we could all do something about creating a background framework that makes it more difficult to resort again to such means.

So this article, which is, as you said, my most recent work — you had hoped it is my most recent work, because you hope I don’t write that much nonsense — but there are a few other things out there which basically repeat certain things in different ways, and also say more about this background idea of the foundations of human rights. There will be a very interesting volume being published, with essays by more than a dozen people who will comment on my book “Mind and Rights,” in which I also write, and to which I have written a long response, which I think gives you a nice idea of the framework of discussions in this area.

But what I think is really important, and this is why I’m mildly passionate about it, is that we should not give up the idea of the reality of ethics and norms that can guide us. And there is a seduction to just accept that the world is only about power, to become cynical, to say it’s just about being on the right side of the powerful. And I think that is a bad idea, if we all do it. I think the world will look even nastier and more filled with suffering than it does today.

Shreya Banchhor: Yeah, thanks a lot for such a thoughtful answer, Professor. I think it has become even more apparent that you’re quite an ingenious academician in the field of cognitive jurisprudence. So, we would just like to ask — how did you decide to pursue this particular field of academia, and what kind of guidance would you give to someone who wants to pursue a career in this subject area?

Matthias Mahlmann: Well, I would say, as I indicated before, my basic starting point is that I ask myself, “What should I do as a moral being?” And that was pre-theoretical, pre-philosophical. I don’t know exactly when I started thinking about that. I certainly did as a teenager, and that led me not only to law, but also to the question of what the foundations of legal systems are, and what we know about justice, about the good, about rights, about how we legitimise state power, and so on. That’s a basic trajectory, and I think it’s not something particularly original. I think that is something that should, in a way, be the homework of every human being, because every human being, in whatever sphere of life — law or pharma, doctor or street vendor — is faced with the question of how to react justly. And if you are on that path, I think one traditional insight of reflection is that ethics and law are not something that grows on trees like jackfruit, but something that is created by the human mind, by our thinking. And if it’s a creation of the human mind, we have to understand how the human mind works. That is also a traditional perspective — not something new. Many great authors in the history of ideas have thought about that.

I think one footnote to this great question is what we are doing today: also seeing whether certain parts of cognitive science actually tell us something about what we should know in this field. I emphasise that some of this research may tell us something, and other parts may not, and may even lead us in the wrong direction. And that is also something I think is very important — to cultivate a critical attitude. Sometimes there’s a certain aura to what is presented in cognitive science and psychology. You have nice pictures and blobs and diagrams and numbers, and it all looks very scientific. But if you start thinking a bit more in detail about the background assumptions and so on, it is fishier than it sometimes appears. I think there is a real issue here. That is also a reason why I find it very interesting. At the end, what we are doing when we ask this question is negotiating the essence of our own humanity. We try to find out what we, as human beings, really are, and what we share.

You know, you wear proudly your Spanish t-shirt, and I sympathise with that, not least — but I’m more on the side of the Spanish women’s football team. Not least because my daughter plays football, and we are very much into women’s football. I would say, in this World Cup, I’m not fully on the side of the Spanish men, even though I always admire their technique. That’s a difference. There are many other differences. But the point is that we share something important. And as I said, one of the things that I think we share is moral agency. And that is a certain vision of what we are. Are we narrow-minded tribalists who can only think about others as enemies, competitors, somebody who has to be pushed and elbowed away? Or do we think about others as pretty precious beings who can actually add something important to our life by their humanity? And I think that’s crucial in our time, because there are many powerful forces trying to convince us that we should reduce our moral horizon to an inner, narrow, hateful, resentful groupthink. I think we should get out of this cage and breathe the very fresh air of understanding what we share. I find it very nice when I go to Bangalore and I have the feeling that I’m going somewhere where, with all the differences that exist, like I can’t eat the spicy food that you are happily eating all the time — but despite all these differences, we share something important. And that I’m not going there thinking that you are these strange others, enemies or competitors, but that you’re my co-inhabitants of this planet. And I think on that basis, life becomes much more charming.

Shreya Banchhor: Thanks a lot for giving us so much food for thought. Even I play football. Just the last question, which is something that we just want your insight on to connect more with our Indian readers. So, you recently visited NLSIU and India because of that. What was the one thing that pleasantly surprised you on this trip?

Matthias Mahlmann: Well, I’ve been to Bangalore before a few times, and as you know, we have this very fruitful exchange. And by the way, we also have a student exchange. And I’m trying also to make this more known here in Zurich, because I think it would be very fruitful for students to go to Bangalore and to NLS, because I think it’s academically a very interesting, great institution, and there are very interesting students and people you should talk to. I would of course hope that perhaps the other way around, also people may be interested to come over, which may however be a bit of a financial burden. But I have some ideas, and also the leaders of the National Law School are very committed to the international connection of your university, and you should be very proud of them. We may find a way to also deal with that problem. So, there are many things that you can mention. You know, culturally, I think India is endlessly fascinating. And I always try, every time I’ve been there, to see at least something outside of my academic circuit. And I certainly don’t see enough. I think there’s a great contemporary cultural literature and performing arts scene. I also try to get a bit of that, even though also not enough. But if you ask me what I take home concretely, and which is most impressive, it’s really these moments of meeting inspiring people who actually fortunately confirm my working hypothesis that access to moral experience is something that is independent of learning, education, reading Kant, or anything profound like that. So, I’ve met people in India, in the context of my work with NGOs, people who are very poor, really at the so-called bottom of society, very inspiring examples of people who show what human dignity really is. And that is something that you don’t learn from articles. I write interesting articles about human dignity and this kind of stuff, but I have no pretension that you only learn it because you read this article. You learn it because you meet people who embody it. And I must say I’ve met a few people in India from very different walks of life, not only the poor, but also people who have shown me that, and I’m thankful for that experience. I think we have to remember not to get lost in, as I said, this tribalism, and also in some theoretical discussions which may blur our vision — which are not only enlightening, but also may blur our vision from seeing us in our naked and very precious and very rich, and I think admirable, humanity.

Siddhi Shrivastava: Yeah. Thank you so much, Professor, for all your insights and all your answers. It has really been a very enlightening experience. And as someone who wants to pursue a career in human rights, this was an honour to actually listen to you and speak to you. And thank you very much.

Matthias Mahlmann: If I may add one thing since you said career in human rights — I also give lectures in the introduction to law. And one of the things that I say, and I’ve done quite a bit of practical work, is that you have to keep your normative yardsticks, but you also have to be aware that the everyday realities of the law are also sobering. But that is the case everywhere. If you want to clean up your kitchen, you have to do unpleasant work. And if one wants to do that, one has to, in a way, also try to get rid of certain illusions of what one can do. And then you can really, I think, do very important things. So keep me updated about your successes.

Siddhi Shrivastava: Thank you so much.