Post-Development, TWAIL and Critical Legal Studies
More importantly, this is also different from one sided polemics of post-development strand of international law which reduces problem to discourse, ‘intentions’ and authority and understands ‘development’ only negatively.
In this regard, the edited works of collectives of Sally Engle Marry, Jean Comaroff and Tim Linsey are important. Comaroff et al. rightly points out the centrality of law and emerging fetishism, but cannot identify causal relations of law with changes in political and economic instances.[1432] Sally Engle Merry and her collective’s works are dominantly within the Foucauldian framework, and show linkages between power and knowledge[1433] behind governance indicators and indicators as technoloÂgies of knowledge production and global governance.[1434] What this book adds to this approach is how a ‘local’ legal framework (Islam) accepts and accommodates the liberal thrust at a discursive level. Both together reflect the nature of changes in the practice of hegemony for the exclusion of the dominated classes. Based on this, I have found no reason to accept Tim Lindsey’s divide of the formal law as imperialist and informal/indigenous custom/law as defensive in the name of legal pluralism.[1435] [1436]Similarly, Third World Approaches to International Law (TWAIL) was the timely response to a uni-polar world emerged after the Cold War and the new legal regimes unleashed after the WTO was signed in 1995.40 TWAIL critically invesÂtigates the hegemony of the few dominant nations over a majority of the global ‘South’ or ‘Third World’, and the Westphalian assumptions of universality, posiÂtivism and Eurocentricity in international legal theory and its practice.[1437] TWAIL itself is aware of its inability to effectively critique neoliberal international law or project alternative vision of international law.
Apart from TWAIL’s own identifiÂcation of its limits of ‘resources’ and ‘problems’ for research by scholars from the South[1438] the research in this book can have implications for a few very basic constituent elements of TWAIL’s theory.TWAIL lumped together all the First World and used the terms ‘empire’ and ‘imperialism’ problematically.[1439] Imperialism in TWAIL is ‘de-territorialized and de-centred’ and is very particular to the concept of ‘empire as found in the work of Michael Hardt and Antonio Negri. TWAIL considers the remaining world as ‘Third World’. All contradictions are collapsed to lying between these two worlds. Consequently, it ignores the relationships and contradictions within and among capitalist countries as well as among the least developed (e.g. Sub Saharan Africa) and the more developed countries (e.g. BRICS).
This book shows imperialist centre-periphery dependency relations are not located outside but has been internal to the state and society of Pakistan in the form of a hegemonic class of which the military is also a part. Therefore, legally backed but despotic regime changes in Pakistan were not debated at WTO forums. Legal amendments, repeals, enactments, which are blunted at the implementation stage are supposed to be corrected by the judiciary through ‘good governance’ interÂventions. Latin American countries, only due to rising working class politics, resisted international law regimes in a way never possible in Pakistan, but also as not anticipated by TWAIL.
Critical Legal Studies (CLS) as a legal tradition carries forward modern leftist thought (Marxist and neo-Marxist),[1440] critical social theory and poststructuralist deconstruction.[1441] While criticizing mainstream liberal legal thought in the U.S., CLS itself has received extensive critique.[1442] CLS exposed the contradictions of the liberal legal project and in that sense seemed doctrinal and not empirical.
Based on this, Trubek pointed out that the mission of the CLS is to change the consciousness by a counter-hegemony.[1443] CLS took this as an end in itself, placing itself therefore within liberal legalism. This book in contrast traced contradictions of the liberal legal project as contradictions of hegemony resulting from the persistent inequality at structural level. The ‘consciousness’ of judges, lawyers and public was not either ‘liberal’ or ‘Islamic’ but were both at the same time. The same judges, lawyers and public were for ‘rule of law’ during the Lawyers’ Movement and showered rose petals on Mumtaz Qadri, the murderer of Governor Punjab when the Governor supported a poor Christian woman wrongfully accused of blasphemy.[1444]CLS’s limits was not uncontested and was challenged by the subalterns. The key here is political practice and structural location of the subaltern in the system, giving rise for instance to Critical Race Theory (CRT) as well as feminist critical theories. In simplest terms CRT wanted legal practice and civil rights discourse for the marginalized Black community whereas CLS was interested in ‘critique’. CRT borrowed methods of CLS for the critique of liberal legal project but kept its political commitments with the civil rights movement and scholarship. At a deeper level this reflected a tension between ‘radical emancipation’ and ‘radical critique’[1445]. At a theoretical level it was a move within the critical tradition from ‘modernist’ to ‘postmodernist’ and then back to ‘modernist’ thought,[1446] as also occurred in feminist critical theories.[1447] The question of how to use law and legal institutions for political and economic struggles has haunted the critical tradition. What is the take of research in this book which is also in the critical legal tradition?
6.4