Legal Analysis in Relation to State and Society: Theoretical Departure from Liberal Legal Analysis

The decade of 2000s in Pakistan was full of discourse of rule of law, good gov­ernance, rights, constitutionalism and a powerful judiciary using it to challenge democratic and dictatorial regimes alike in Pakistan.

First step for this is to explore the surface appearances, which present themselves as including the historical development of the object, that is, judiciary in this case. Based on this, a prior conception is to build, that can lead to the selection of empirical material. Next step is, with the concrete material before us, ‘to ascend from the concrete to the abstract’. This means pulling out the actual constituent elements from the concrete and look at them connected and in motion in the abstract. For example, from the empirical material about judiciary, I tried to see how the judiciary and political development are in the concrete in constant motion, developing in a particular direction due to contradictory and mutually affecting determinations. As a next step, abstraction helped me in pulling out the most decisive of these contra­dictions to build the reproduction of the concrete-in-thought through the criteria of social practice. This stage of abstraction also helped to determine the general mutual connections of the decisive, abstract elements in moving the social phenomenon. After this I was able to reconstruct the concrete going through the empirical material. This was not a one-time process, it was a repeated process of conceptualization that led to new ways of appropriating and abstracting empirical material.

There is a need to elaborate more on this particular stage of abstraction due to its difficulty and accusations levelled against it.

I picked the constituent elements of political development (hegemony as a political practice in Gramscian sense) in relation to the approach and actions of the judiciary. One constituent element, in case of Pakistan, was centre-periphery relations, with the U.S. as the hegemonic class (a class analysis of Pakistani state to follow in the next half of this chapter). This hegemonic class brought the reigning classes (feudal, capitalists) under its political project using civil-military bureau­cracy as a seat of power. This was complex. A second constituent element is inter-elite struggles around and with civil-military bureaucracy. This is the political instance of social formation in Pakistan. In this instance, the inclusion and exclu­sion (or pretentious inclusion) of the dominated classes in the hegemonic project happened. This inclusion and exclusion of the dominated is third and the most important constituent element. I look at how this exclusion was made possible in both democratic and dictatorial regimes. So we are to see the development of the above three constituent elements at the structural level, that is, economic instance of social formation. How the centre-periphery economic dependency relations joined hands with local elite in economic arrangements excluding dominated classes travelling in a particular direction.

But our object of study is law and judiciary, that is, to look at the relation of above-mentioned political and economic instance’s development with law and judiciary (legal instance). That is, those constituent parts of the legal enterprise (law and judiciary) which form part of the hegemonic project. This is the legal instance that gives the most legitimacy to political and economic instances in the post­colonial Pakistan. This is where most of the hegemonic project is concentrated. Pakistan shows an active judiciary and legal field as an arena of political struggle. This is not only politicization of judiciary but is also judicialization of politics, that is, most of political battles are fought in the courts. The legal instant gives legiti­macy to political and economic conflicts which are contradictions. This suggests that most of the work of reproduction of the ‘system’ happened in the legal and ideological (Islam) instances in Pakistan. Since hegemony is a political practice, this is the reason of politicization of judiciary and judicialization of politics in Pakistan. The objective of this book is to elaborate how a particular rule of law, separation of power, human rights, judicial review and a rhetoric of independent judiciary, collectively as a legal instant, carry three constituent elements; namely, centre-periphery dependency relations, inclusion of reigning classes, and the exclusion of the dominated classes, in relation to political and economic development/change (instant) in a particular direction in a constant motion in an empirical concrete.

In this elucidation, incoherence and inconsistency of the judicial decisions will be apparent. The attempt is made to trace back this inconsistency to the contra­dictions in the political and the economic. This book studies the judicial discourses around judicial review, fundamental rights, separation of power, PIL, appointment of judges and even the politics of the bar in an interconnected manner to understand its role in the political development.

Legal and judicial activism happens within a complete system. To be effective, it needs to take into account social, political, economic, cultural and ideological aspects. This invokes serious questions of methodology and theory. To make this introductory chapter simple, I try to confine myself to the method I use to analyse the legal developments in Pakistan in relation to changes in broader society. This may seem like laying down the contours of a theoretical framework but not settling all theoretical questions. Based on this method, once the historical and empirical account is narrated, then in concluding chapter, I will reflect on how this theoretical framework has implications for critical legal tradition in academia like ‘social’ and ‘cultural turn,’ law and development, Third World Approaches to International Law (TWAIL), and Critical Legal Studies (CLS). That is, how it adds to this critical tradition.

Proper grasp of the relation of legal enterprise with other instances of the social whole also needs a nuanced understanding of politics, relation of law and politics with economy. It needs to avoid mechanical and reductionist attempts to divide social whole into ontological discrete spheres such as culture, economy, politics or consciousness. Orthodox Marxism reduced law and other superstructural phe­nomena to economy. Reacting to this current reductionist trend of social theory and culture in academia seems allergic to any nuanced understanding of political and economic in legal analyses. Theoretical framework in this book originally builds upon Gramsci’s idea of hegemony as political practice and Althusser’s dynamic relation of economic instance of social whole with law and ideology. While doing this, E.P. Thompson’s contribution to emphasize importance of cultural aspect of law can be accommodated to avoid economic reductionism.

Concept of hegemony by Gramsci is to understand that ruling class does not rule through coercion only but it gets active consent of the dominated by persuading them. For Gramsci, this ideological appropriation of the dominated classes by the ruling class is hegemony.^[54] This is not only a false consciousness but dominated classes accept the universal promises of freedom and equality. In that sense hegemony is not the hegemony of one class but a political practice in which consent is sought and ideas are contested in one cultural and social space. That is why hegemony may be complex and indeed it is in postcolonies where the hegemonic class negotiates with other dominant and dominated classes to construct a hege­monic order and form a ‘historic bloc’. To do that, legal and ideological constructs and discourses are developed by the dominant classes. In case of Pakistan, this book shows a real effort on behalf of judges and jurists to address the requirements of the hegemonic bloc to construct legal (liberal) and ideological (Islam) instant of the social whole. In that effort while the contradictions in the hegemonic bloc make it volatile, the tremendous pressure came on legal and ideological instances of the social whole to give legitimacy to these regimes and state formations.

But in postcolonial class-divided societies there is no separation of political from the economic and hence economic is a very important part of the social and is related to hegemony, that is, political practice and consequent state formations for ‘developmental state’ of modernization and ‘state for the market’ of current neoliberal globalization. Whereas Gramsci rightly emphasized the importance of politics reacting to economic reductionism of orthodox Marxism, Althusser re-articulate the importance of the economic instant of the social whole.

Althusser in his writings from For Marx, Reading Capital, to his famous essay Ideology and Ideological State Apparatuses insisted that ‘social whole’ consists of ‘levels’ ‘instances’ (economic, political, legal and ideological) which distinguishes Marxism from Hegelian ‘totality’.^[55] Economic level (base or infrastructure) consists of the productive forces and the relations of production. Superstructure consists of two levels or instances: the political-legal (including law and state) and the ideo­logical level/instance (religious, moral, legal, political and so on).^{[56] [57] In Althusser’s formation legal, political, ideological instances of social formation (superstructure) are relative autonomous but are determined by the effectivity of the economic. Superstructure reacts back to the base but economic is determinant in the last instant5~7 but through complex mediations. For example, literature and culture react back to other instances of social whole like philosophy and politics as well as to the economic base. This simply means that superstructure is relative autonomous having specific effectivity, that is, have its own history. We can trace it to economy through complex mediations. According to Althusser, Marx had given us two ends of the chain, one is determination in the last instant by the economic (mode of production) and on the other end is relative autonomy and specific effectivity of the superstructure. We are to find between them a complex set of mediations.[58] This proposition of Althusser made any social phenomenon, from political parties to literary texts as over-determined, that is, caused in varying degree by events and actions in all levels of the base and superstructure by which it is constituted.[59] So it is clear that economy is not the sole determinant factor of a historical event. ‘Dominance in the last instance’ does not mean ‘dominant role’.[60] Though the economy is determinant in the last instant. In reality, ‘the last instance’ never comes.[61]}

Viewing it this way, Althusser’s theory of social formation is open, dynamic, and takes into account different levels of social formation even with unevenness in their own development and in their mutual relationship. What one needs is to avoid a degree of functionalism and structuralism in Althusser. He did not identify oppositional ideologies within the state structure, so it pulled his analysis strongly towards functionalism.^[62]

Althusser is accused of being a structuralist by E.P. Thompson. For Stuart Hall this impression is right, but the real advances in Althusser’s theory are more important than this,^[63] which we have mentioned above. Althusser did not align himself with structuralism of Sassure, Levi and Lucan. He was not interested in a complete system. He distanced himself from what he called ‘structuralist ideol­ogy’.^[64] Edith Kurzweil’s position is that though Althusser denounced being a structuralist, he shared preoccupations about unconscious structures with Levi-Straus, Foucault and Lacan.^[65] That said, I want to make clear that to take into account structure in my analysis of relation between legal institutions and political development, the above-mentioned understanding of social formation can be the only theoretical base to start with. This theoretical prerequisite of understanding of social whole will not automatically generate analysis but only show ‘how things are in a social whole’. The burden on the research is to show ‘this is how the things are’ in a particular social formation.

This invokes the question of structure, history, culture and human agency. This also brings theory and empirical research in an antithetical position in these debates. Known Marxist historian E.P. Thompson around history of Black Acts gave tremendous detail of events of that time, like class interests, crimes committed against property, forest bureaucracy’s rationality, their conflicts with forest formers, wealth of South Sea Company and its bribes.^[66] But throughout his study, Thompson connects historical evidence randomly. Perry Anderson called this a catalogue of system without causal hypothesis, that is, ‘a listing is not explana- tion’.^[67] This means history is equal to past—a record of everything that has hap­pened.^[68] A historian is not free of the duty of conceptualizing. To capture the process of change in history, one is to formulate and specify historical concepts with care. This duty becomes more where there is diversity and historical flux.^[69] Perry went to the extent that Marxist history should be different from historiography in general. Former needs a formal construction of theoretical concepts but Perry at the same time warned that these concepts can only produce real knowledge if return to and derive from a controllable research.^[70]

As opposed to this, E.P. Thompson deliberately demolished the above-mentioned theoretical understanding of a social whole proposed by Althusser at the end of his study of Black Acts.^[71] Thompson was reacting to an impression in Althusser’s work, which Poulantzas correctly pointed out. That is, Althusser tried to find ‘theoretical’ solutions to ‘theoretical problems’.^[72] To avoid this, Thompson went to the other extreme of empiricism. Althusser was not putting theoretical practice before history but before historical investigation. This means conceptual­izing. Perry Anderson is right that in order to understand change in history, one needs to conceptualize. Economic itself was a social phenomenon for Thomson and he tries to set free culture, consciousness and human agency from the economic. Later it was difficult to conceptualize the causal relations of the legal struggles with that of the social of the economic. It lost the historicity of the legal practice. Any legal analysis needs tracing the legal struggles on historical premise going through complex mediations to see how do they develop. But to have their contemporary material-ideological analysis, one needs a structural premise. Therefore, legal analysis should be integrally on both premises. History and structure are two dis­tinct concepts. One cannot be reduced to another. What connects structure and history is investigation of the political practice which is hegemony. It needs concrete study of class struggle, where agents are not free-floating empirical facts of historiography nor doped slaves of structures.

After distancing from structuralism and functionalism,^[73] the related issue of neglect of human agency also needs some clarification, For Giddens, this is com­mon to all structural writers. In Derrida, writers’ intentions are separate from the writing. Similarly, in Sassure, Levi and Barthes, social practices are separate from our intentions.^[74] For me, agency in relation to class struggle means independence of human agency to wage class struggle against structures as opposed to pretentious liberty and freedom of human agency under liberalism. By continuously keeping an eye on classes and class struggle in my analysis, I bring the main strength of the Marxist analysis. Marxist analysis of structures hinges on class, that is why, the mention of structures for class analysis in this book has nothing to do with struc­turalism. Based on this, my only claim is that, in this age of institutional analyses, ignoring structures is just ignoring class struggle (the actual potency of human agency), be it done by liberals or by poststructuralists. For both of them, ‘values’, ‘hegemony’, ‘consciousness’, ‘discourse’, is the start as well as the end objective of analysis.

Then what is the place of ideology, discourse and consciousness of the legal subject in legal analyses? ‘Consciousness’ is mostly used as awareness and opposite to ‘ideology’ considering it ‘false consciousness’. But in contemporary research, just like power/resistance and structure/agency are not opposite, ideology and consciousness are considered as internal components of a larger process of social construction.^[75] In that sense, consciousness of the legal subject is neither false consciousness nor is neutral as some contemporary social theorists think.^[76] This context of discussion of ideology is at the expense of social experience of the ideology by people. If actual experience of the people is exclusion and marginal­ization through deception of ideology, as is the case of Pakistan, why not to accept this role of ideology in its particularity? Rather, through discourse, ideology is institutionalized to become a material reality. Social organization gains legitimacy through legal consciousness.^[77] In terms of dealing with ideology, there can be two types of missions for those who want change in society. One is to use legal ideology as a contesting field and give a new content. Speculative content of ideology is not enough either. Furthermore, ideologies are not empty sack that can be filled with new content. Another way is to delegitimize ideology and change consciousness for a counter-hegemony.^[78] Gramsci’s idea of hegemony explains that ideas play a role in politics to get the consent of the governed. But why people submit to ideology? Gramsci could not answer. Althusser’s seminal work explains how ideology is a medium in which one ‘lives out’ ones relation to society. It binds social structure.^[79]

Based on above understanding of the social whole what should be the methodology for legal analysis?

1.3.1 Few Comments About Methodology

I connect judges’ legal ideologies and ideal of political development as gleaned from their judicial biographies, speeches and writings to their legal decisions. I relate decisions to events, and events to the political hegemonic project. Finally, I link this analysis with the deep structures within which these institutions were enabled or restrained, such as the unequal distribution of land and wealth, and Pakistan’s imperialist hegemonic centre-periphery dependency relations over the decades from modernization to current global ‘good governance’.

While reading available literature on Pakistani judiciary and its decisions on different component of legal enterprise like judicial review, rights, etc., I noticed two problems. One, as already stated, that the decisions were discussed at the level of deviation from some ‘ideal’ legal and political arrangement and hence labelling judges as good or bad. Second, there were development of one legal component from piece meal case law and legal struggles disconnected from other components of the legal enterprise. Finally, the development of legal concepts was either doc­trinal or with very superficial understanding of politics and society.

First, I gave a new reading to most of the cases in dominant legal literature in relation to political development in Pakistan. At this stage I use elements of dis­course analysis, deconstruction, and immanent critique. Apart from judges’ deci­sion in favour of democracy or human right, I tried to understand judges’ ideas about democracy and rights from their speeches, writings and autobiographies. All Pakistan Law Decisions (PLD) has a journal section which covers writings and all important speeches of judges and jurists. In these writings and speeches judges comment about their cases and politics also. Almost all the important judges and jurists also publish their autobiographies. Here again judges talk about their cases and political opinions. What I did is to construct a model of political, social and cultural development of judges from these sources and connect it, on one hand, with their cases and on the hand with overall political hegemonic project as a political and state practice. To do the former, I again use critical approach to go beyond

descriptive liberal understanding about Pakistani state, politics, culture and eco­nomics. The different analysis of law and judiciary was not possible without a new critical understanding of the postcolonial state and politics of Pakistan. Most of the social science literature reduces the understanding of Pakistan to an omnipotent military bureaucracy. Related to this is the analysis of Islamization of Pakistan by the military in these writings. The judiciary in these analyses seems under attack, helpless, compromising and hence, deserving of sympathy. Legal analyses super­ficially borrow understandings of state and politics from these already descriptive liberal analyses. This book adds a few new insights to the state theory of post­colonial Pakistan by demonstrating a close nexus of the civil-military bureaucracy with the judiciary during modernization. That is, it was not a civil-military bureaucracy but a juridico-bureaucratic structure that defined state formation in legal and constitutional terms.

The research project in this book emerges from my prior life in hectic legal struggles for the labour, bonded labour and peasantry. I interviewed lawyers to fill the gaps in my research. To add Bar politics in my analysis, I interviewed those who were involved because their writings were not commonly available. I interviewed labour leaders and their views were crucial as being marginalized in this struggle for ‘democracy’ and ‘rights’. Most of all I hope that my experience as a legal practitioner with marginalized communities and my quest for relevant legal theory merge in this book in such a way that it allows for readers to conceptualized a theoretically informed legal activism, with a theory which can broaden the political horizon in theory as well as practice.

Finally, before critically engaging with judges’ and jurists’ writings and decision in empirical chapters, one thing should be clear that this book is not meant to defame Pakistani judiciary or judges. The role of judges and judiciaries in other class-divided societies is the same to varying degrees. This is true even with class societies of the west. It is just a matter of theoretical framework and methodology that can bring it to light. That is why, concluding chapter pointed out the problems of insufficiency of critical legal to expose the liberal legal project in the west.

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