The Collapse of Modernization and Revisiting the Role of Law
For liberals, one of the many reasons for the downfall of Ayub was the inter-elite conflict.[441] As a whole, there were three problems with Ayubâs modernization that led to its collapse: (1) The concentration of wealth as patronage was confined to industrialists; (2) Benefits only went to big landlords, and; (3) Ayub did not accommodate the new middle classes in the political process.[442] As far as inter-elite struggles are concerned they are not violent and mostly take legal and constitutional forms.
This is always only a situation that weakened the unity of the hegemonic bloc of the dominant classes and make possible for the subordinate classes to exert themselves. Ayubâs policies, such as that which promoted the Green Revolution, resulted in growing class conflict. The rural inequality in terms of availability of cash, agricultural inputs, tube wells and tractorization was more visible and widespread as only the big landlords could afford these resources but not small farmers. The urban inequality was far greater than the rural one in real terms, at least in the industrial sector. The green revolution changed the landscape of social formation and gave birth to new subordinate classes, which changed the political landscape. Ayubâs industrial policy was completely for industrialists, thus against workers. He brought forth the Industrial Dispute Ordinance, 1959, which made strikes impossible in public utility (sugar mills, textiles and many other sectors were included in the public utility). Instead of neutral labour courts having jurisdiction in industrial disputes, employerâs representatives were made to sit on tripartite prinÂciple (employee and employer âs representatives and a chairman). Above all, labour union leaders had no immunity from termination. These repressive policies resulted in the working class joining hands with students and un-employed, creating a major force against Ayub.[443] But the most vocal in these unrests were lawyers along with students. For Braibanti, the legal community was probably the most powerful elite group, outside government services in Pakistan.[444] He wrote, â[a]t the pinnacle of prestige were the barristers who studied in England at one of the Inns-of-Courtâ.[445] The community also had âclose identification with the ideology and techniques of modernizationâ.[446] Another source of strength of the legal community was that most of the leading political leaders, including H.S. Suhrawardy of East Pakistan, Khan Abdul Qayyam Khan of the Frontier province, Mian Mumtaz Daultana and Mahmud Ali Qasuri were lawyers. Later in the countryâs development, however, it was possible to have too many lawyers in politics and hence the âconsequent disproportionate emphasis on legal modes of thought as antithetical to the needs of developmentâ.[447]Cornelius advised lawyers to stay away from politics. He gave an example of England, that those lawyers who are political were a class apart and fewer in numbers there.[448] Comments by the Bar Association on political matters irked Chief Justice Cornelius.[449] The erstwhile âdemocratâ against Ayub, Chief Justice Kayani, had contempt for the bar vis-a-vis administration and bench because only the CSP had the right to rule in Pakistan in his proposition.[450] As opposed to this, S.M. Murshed, CJ East Pakistan High Court, though was in favour of the judiciary being granted an important position in regards to constitutional interpretation, yet warned against mistakes that the judiciary could make in this process. To correct this, he stressed the need of an active role of resistance by lawyers.[451] Ayub was also annoyed with the legal profession, which he found âovermannedâ but producing poor material.[452] He looked at the judges from a military perspective.[453] He selected three judges out of 11 and found practicing lawyers impressive, but session judges a poor lot.
He wanted âjusticeâ instead of courts of law.[454] Supreme Court Chief Justice Fazal-e-Akbar requested and asked Ayub to give administrative powers to the Supreme Court over High Courts as High Courts were delaying decisions, granting stay orders automatically, even on false allegations about works on projects, leaving Fazal-e-Akbar helpless. Ayub told Fazal-e-Akbar that he wanted to grant these powers at the time of framing the constitution but âlegal punditsâ found it against the independence of judiciary. Ayub then said that he made a supreme judicial body, which judges were reluctant to use. They would imprison and hang other people but dare not lift a finger against each other.[455] Before swearing in Supreme Court Chief Justice Hamood-ur-Rahman, he had separate talks about discipline in courts and bureaucracy, and about the language of Article 98 of the constitution, which gave unlimited powers to the courts. Ayub wanted to deal with it by legislation, otherwise he argued there would be utter lawlessness. But the cabinet advised him not to do so and to rather use security acts and provincial detention laws.[456]Ayub was frustrated with lawyers because he argued that as a class they were ready to listen to any nonsense.[457] It was observed that the lawyersâ role as gentlemen pursuing justice was no longer possible. The legal profession was close to a business and for some people was a âdying institutionâ.[458] Chief Justice Anwar ul Haq found that lawyers predominantly defended the established order, as their principal clients were mostly individuals with property or corporate owners.[459] On the opening ceremony of the High Court building, Ayub repeated the slogan that the rule of law and independence of the judiciary was not an issue but what was real was the suffering of the people due to the legal system. After the ceremony, the Chief Justice accepted that the legal profession had become sordid, and proposed an idea to appoint a legal advisor to guide litigants at the union council level.
Ayub liked the idea but thought that lawyers would become further alienated from him.[460] What was Ayubâs explanation?Amjad Ali told Ayub that the problems he faced were due to the lack of inclusion of the intelligentsia and rising prices. Ayub responded that prices seemed comparable with other countries, whereas the intelligentsia did not feel participation without a direct vote.[461] This seems nuanced and compatible with the above analyses to understand political development and reflected the analyses in those days of dying capitalist modernization. The crux was popular participation and its expression under socialist modernization, which capitalist modernization under Ayub could not control. All the key commentators: Huntington, Braibanti, Cornelius and even Ayub, were aware of this. This realization is the key to understand the current emphasis of the centrality of law by good governance paradigm of the World Bank and institutionalists.
Law as a part of the modernization project[462] was in infancy when modernÂization came under crisis. This cast doubts on the role of law to the extent that Manzor asked âIs law dead?â[463] This raised concern about the role of law in political and economic development in Third World countries and hence demanded a social theory of law. Trubekâs diagnosis was that the Eurocentric evolutionism and generalization in theory behind liberal legalism was a reason behind this fall.[464] Connected to this, according to him, was the creation of a strong central state under liberal legalism in modernization and the wish to govern social life by purposive rules.[465] For Trubek, this is statist legal instrumentalism, looking towards bureaucratic-administrative entities. He concluded that the economy and polity merged together to some extent in a developmental state. Law in an authoritarian regime for him is not supportive of democracy, rather the opposite.
It resulted in the legalization of politics and politics came in the hands of the specialized elite. As opposed to this type of functionalism, Trubek suggested that legal purposiveness itself is not enough to explain the relationship between law and politics.[466] So we need varying degrees of purposiveness in law and hence pluralist legal instruÂmentalism, which should be more competitive and representative. Trubek correctly critiqued the functionalism of Parsons, and the problems of liberal legalism. But to accommodate increasing competiveness and representation does not solve the problem. It seems that the problem identified by Trubek that the law stops repreÂsentationâwas found as a solution by institutionalists in the aftermath of collapsing modernization. Let me expand this argument.Furthermore, the argument this book want to advance is that the âinstitutionalÂismâ (particularly legal institutions) came as a response to failed modernization and the consequences of increasing political participation. The behaviourial aspect of institutions was brought to functionalism to deal with the crisis of excessive parÂticipation. Based on Huntingtonâs approach,[467] Braibanti was worried about the declining role of law in modernization project.[468] He argued political development treated the law in its institutional aspect and did not try to find functional or behavioural schools of jurisprudence. He did not agree with the dichotomy between institutions and functions and thought institutions perform functions and affect behaviour. There was a need for institutions as was emphasized by Huntington. For Braibanti, the decline of institutional study and importance of law was due to the expansion of political participation and popular sovereignty, which relies on extra-legal norms.[469] He accused social scientists of devaluing law through their involvement in social activism and physical agitation called âconfrontation politicsâ for immediate change.
For him âagitation minimizes and eventually corrodes the vitality of law and institutionsâ.[470]The suppression of popular sovereignty and the restructuring of the centerÂperiphery relation of Pakistan were the focus of Ayubâs reforms. For this, as I have explained, he relied on controlled democracy and controlled participation. Ayub also noted that the attempt to bridge the gap between the state and society through the Basic Democracy system did not work. He wanted the science of social behaviour to develop first.[471] Social restraints are deeply embedded in habits of the people in accepted social arrangements. He correctly referred to these social arrangements as âinstitutionsâ. For him, â[h]abits of thought and conduct are the most stubborn obstacles to developmentâ.[472] What can give stability in the meanwhile? For him, it was the constitution, law and the Supreme Court. He accepted that he could have lifted the emergency after the 1965 war was over and particularly after the judgment of the Supreme Court to insist on scrutinizing the emergency laws. He did not follow the courts and there emerged the rights cases as we discussed above. For Ayub, the Constitution was amended so that there was no need of Martial Law and emergency laws could be enough. Ayub thought about this but the law minister insisted on amending the law rather than the constitution, so the Supreme Court struck down those laws.[473] The political situation did not let Ayub amend the constitution, as the members of the parliament were scared of victimÂization and terrorization of agitators.[474] The point I want to make is that Ayub shared the same values and approach as that of Cornelius towards the citizenry. The difference was that Cornelius believed in conditional individual liberty to avoid social unrest, which Ayub did not understand.[475]
Braibanti called the problem of popular will and its accommodation in modÂernization the âdemand-conversion crisisâ.[476] This needed a demand-diversion method. Some of this adjustment could be found in law and legal institutions. The political system tried to create ambiguity to blunt the demands of the presidential and parliamentary system in Pakistan and to create ambiguity around detention laws. The judiciary tried to decrease the ambiguity and helped the political system to adjust to demands. But, Braibanti was not sure how the law could increase or decrease ambiguity. Furthermore, the natural justice approach of the law as applied by the Pakistani judiciary helped in silencing these demands. In that sense, the political system is like a 12-cylinder engine with noisy tappets and a gummed-up cylinder and the natural justice approach of law is like foam on it, covering those noises, âquieting the noises and smoothing the rideâ.[477] Braibanti was scared of the risks of artificially removing law from its contextual tissues in this process. The reason behind his doubt could be that law, as a means of social change and engiÂneering, had not yet been set up. The Law and Society Review had not yet started.[478] My argument is that one should not assume the central role of law in this stage of modernization, but rather that it was the collapse of this phase of modÂernization led to the idea of using law and institutions to âpreventâ democracy. This was not clear to Braibanti at that time.
It is yet too early in the story to understand how legalism and institutionalism would pacify the rising lawyers and middle class in the years to come. In this chapter, I have argued that âinstitutionalismâ (particularly legal institutions) was a response to failed modernization. In the next chapter on the 1990s, we will see that institutionalism acted as a continuity of modernization in the age of globalization.
The analysis so far adheres to the view that the ethos of capitalist modernity (modernization in 1950-1960s) rested on an elitist democracy, which required controls on democracy. The law was a tool, only to support such capitalist ecoÂnomic and political (under) development. However, when capitalist modernization was challenged in postcolonial states in the 1970s, but the socialist bloc was also unstable, the architects of modernization theory now chose law (working through rules and institutions) as a response to the popular challenges. Capitalist modernÂization was to work through the imposition of legal, enforceable rules, where the spread of market economic and social values had failed. This was a new kind of modernization, which is pervasive to this day in our common understanding of the centrality of ârule in lawâ in a democracy. Samuel Huntington and Douglas North were the architects of this new order.
With this background in mind, we will first show the place of law in the experiment of socialist modernity by Prime Minister Zulfikar Ali Bhutto in the 1970s. We will will then see how the law was re-deployed upon the demise of popular aspirations for a deeper democracy.