Social Change Beyond Law: Final Reflections
The main contribution of this book is seeking to keep central the structural hindrances to social and political development in postcolonial societies like Pakistan. Tackling this is beyond the limits and capacity of the judiciary given its own location in the class-state.
Having thus offered a ‘critique’, should we then abandon law?Wendy Brown describes the contradictory nature of rights,[1448] and the legalistic turn in Left circles. Furthermore, she argued against the irrelevance of critique of legalism.[1449] Its rebuttal and the South Asian version of cause litigation debate is Public Interest Litigation (PIL), chiefly articulated by scholar Upendra Baxi. He is not nihilistic and accepts the universality of human rights. He distinguishes between the politics of human rights and politics for human rights. The former is the use of human rights languages by IFIs for legitimacy for governance and domination which is constantly reproducing human right-lessness and suffering. The politics for human rights is human rights activism ‘militant particularism’ of the local against global.[1450] Baxi insists that the real birth place of rights is the farm and factory, which for him is ‘realism’[1451]. That is, “people’s praxes of resistance and struggle”[1452].
Missing in Baxi’s work is an analysis of what links people’s politics for human rights and NGOs and donor agencies’ politics of human rights. The reason is possibly Baxi’s theoretical eclecticism[1453] which is at the mercy of the ‘ebb and flow’ of the movement. While Baxi points to the ‘farm’ and ‘factory’ as the places where the rights are produced he cannot tell us why courts are needed to get these rights (or for that matter, why ‘family’ is not such a site).
He does not leave any space beyond the legal state and judiciary to address the problematic nature of Indian democracy and secularism, as pointed out by critics like Arundhati Roy.[1454]In response I would comment that, firstly, legal practice and its use for political ends cannot be left unquestioned when strategic actors in a legal arrangement are highly unequal. Courts may be the choice of professional lawyers, NGOs and even state and politicians. But labour and peasantry may first need organizing at ‘farm’ and ‘factory’ level. This may need politics as a class. Courts cannot organize them nor can give them a political voice. Without this even the political gains through courts cannot be materialized as seen subsequent to Masih bonded labour liberation case in Pakistan.
Secondly, the automatic critique of economic reductionism and the instrumentality of law is problematic where both the sharpness of economic and political inequality and the instrumental uses of law are in actual effect. Exposing instrumentality is a prerequisite for claiming ‘relative autonomy’ or ‘impartiality’ from the law or state. The analysis should not end here but be extended to trace and show how law gives legitimacy to inequality to reproduce hegemony. In this situation of inequality, extensive legalism and going to courts is to channel social conflicts into legal rituals, symbols, judges and case law. It is getting moral consensus from Jinnah or Gandhi for existing institutions of property, contract and themselves as extension of human rights. The preoccupation of ‘rights-consciousness’ reassures people that rights resides in the state and can be achieved through the state, allowing the state and courts to define the terms of the struggle. It creates alien- ation.[1455]9 Without success in political struggle as a pre-requisite, legal struggle is ‘constitutionalizing’, ‘institutionalizing’, and ‘legalizing’, inequality and is ‘structuration’ through institutional practices.[1456] The primacy of politics over legal struggles does not mean abandoning legal struggles but it means placing people first and not the state, and suggests a power oriented approach and not rights oriented approach, and a clear understanding of the structural location of the marginalized.
Marx and Engels attached the legal struggle with the most backward sections of the socialist movement that articulate their revolutionary demands in legal terms.[1457] Whether the rule of law is an ‘unqualified human good’ or not, there seems no obligation for marginalized and subalterns to submit and limit themselves to courts for their political actions. From revolutionary epoch to peaceful moments, they can decide differently. Once it is clear that they are dominated, it is essential to demystify grand laws, robed judges, to reveal limits of law and bring to light social, political and economic basis of legal system. This cannot be achieved through going to courts for political solutions but extending the analysis of courts to politics.
To sum up, the nature of exploitation and marginalization in a legal arrangement determine the features of a legal system. For any legal analysis, therefore, there is a need to know the form of rule and class essence of a particular state, the concrete historical conditions and the conditions and power balance of class struggle. Once this is known, only then can one can know the role of legal struggle, and where it is a futile exercise. Critique and analysis comes first and foremost. This is particularly true in highly unequal class divided societies. We are not critical enough if, in our analyses, what exists is equal to what can exist.