Theoretical Grasp of the Liberal Legal Project in Pakistan
1.2.1 Institutionalism and Functionalism of Liberal Understanding
“The liberal theory of the state is 90% a legal theory of the state”. Pashukanis thus emphasizes the confusion created by bourgeois sciences around the essence of law.[26] The primacy of law advocates for a modern state to mean legal and constitutional arrangements with three organs, legislature, executive and judiciary, having a stark separation of power.
Politics and analyses in postcolonial countries start from this ‘ideal’ are to reach this ‘idea’ in a Hegelian sense.[27] From John Locke to Hobbes, a modern capitalist state has wanted a man ‘free’ from coercive feudalism for commodity exchange and to enter ‘freely’ in a social contract.[28] This social contract is for the protection of property and enforcement of contract by free individuals. Liberalism refuses to develop a useful analysis of the state, which is divorced from property rights, as seen in a study of the work of Douglas C. North, the main proponent of new institutionalism. This is the theory behind the current phase of interventions in developing countries by international financial institutions.[29] [30] But, with the next stroke, the liberal state snatches this freedom in liberalism and asks the individual to submit to a neutral, autonomous state, separate from civil society and above the classes (separation of the political from the eco- nomic).30 Max Weber thought of capitalism and its legal system (order) as mutually causative, and believed that the laws in Europe before the full development of an industrial capitalist system were partially responsible for the rise of capitalism. He then interlinks the legal system with the political system—with the focus on a centralized bureaucratic state constructed through rational decisions which had gained people’s loyalties.[31]The liberal legalist paradigm accommodates these concerns.
In this paradigm, individuals have consented to the state’s domination, which in turn needs to further the individuals’ welfare. The state uses law to control individuals, and itself is also constrained by the law. To achieve social purposes, rules are consciously designed. This law making is to be fair, that is, not driven by race and wealth. Furthermore, pluralist processes are adopted to formulate laws. Once the rules are made, these are applied equally for all according to their purpose. Courts have the responsibility of defining and interpreting these laws. This process of adjudication should be autonomous and based on knowledge and learning. The process of tutelage of the citizenry is top down, so vividly observed in any courtroom, and social actors have to learn to conform to these rules in their behaviours.[32]I am troubled by the institutionalist and functionalist aspects of liberal legal paradigm as it is being imported into the postcolonial world, and being grafted onto a postcolonial state which itself has been constructed out of the colonial state and its law and order machinery. By the 1990s, institutions in the form of the judiciary, laws and constitutions are considered to be essential for a country to politically and economically develop. I am borrowing the theoretical critique of institutionalism and functionalism of liberal legal project from Poulantzas as a theoretical prerequisite, yet my critique of law and judiciary of Pakistan is in its particularity and in turn will add to borrowed theoretical understanding. For functionalism, according to Poulantzas, ‘collective consciousness’, ‘motivations’, ‘desires’, and ‘values’ are important for the ‘functioning’ of a society.[33] This simply means what are the driving forces, ‘values’, ‘consciousness’, etc., at the individual level in institutionalism is considered as the central point of analysis at a collective/society level in functionalism.
When social ‘values,’ ‘social ends,’ ‘consciousness,’ or ‘hegemony’ becomes a dominant factor in organization of the social whole, this reflects a Weberian type of functionalism. For Weber, ‘values’ or ‘social ends’ are taken as subject of history. From these ‘values’, the formation of the political, ‘the spirit of capitalism’ and the analysis of the bureaucracy is undertaken.[34] Any approach having these aspects being the basis of liberal legal paradigm is Hegelian-Weberian institutionalist-functionalist understanding. How has this travelled to postcolonial societies?1.2.2 Institutionalism and Functionalism in Postcolonies
After independence, postcolonial leaders wished to build a modern nation-state and ‘believed’ in modernity.[35] Yet, as has been widely noted and theorized, modernization meant the reinsertion of these countries into the rapidly globalizing capitalist economic order, and the new political leadership was forced into alliance with its indigenous elite. Ambitions of nation-building around modernity took a further leap in liberal legal project under modernization in structural functionalism of Talcott Parsons.[36] Parsons moved away from rationality of classical economic theory and Pareto and brought non-rational factors in human action like Max Weber. He also relied heavily on Durkheim for social order leaving aside totalitarian monarchy in Hobbes. Poulantzas called Talcott Parsons the leader of ‘functionalist’ school in contemporary sociology under the influence of Max Weber.[37] New constitutions, laws and institutions were developed for the service of a developmental state in postcolonies. Law became the reflection of the developmental state in newly independent countries devoted to nation-building. David Trubek called this the first phase of law and development. After the failure of the developmental state in postcolonial countries, “law was understood as the foundation for market relations and as a limit on the state” in 1980s.[38]8 This gives centrality to law and liberal legal project under new institutionalism in 1990s.
From the 1990s through 2000s, we have been living in the era of new institutionalism which has given a centrality to law for political and economic development.[39] Instead of a developmental state leading development, the market was assigned the task of development because it would better allocate resources. IFIs and foreign investors only need laws for the market economy and an independent and strong judiciary for the protection of foreign investment (property) and contract enforcement. This means laws should be present before development occurs (in Weberian sense) and legal institutions for a particular function of market-oriented development in functionalist terms. The deductive school of thought in new institutional economics came back to the usefulness of institutions as the ‘Ideal Type’ in the vein of Max Weber.[40] Hence, Hegelian-Weberian institutionalist-functionalist understanding is the core in the current phase of liberal legal project under neoliberalism in the era of ‘good-governance’.Particular to this ‘institutionalist’ thrust are legal institutions. The emphasis of lender agencies has shifted from hard infrastructures (roads, dams, hospitals and schools) to soft infrastructure (judges, custom officials, legal aid and human rights organizations).[41] When the market failures happened at the end of the 1990s, the judiciary’s role came to the centre of the liberal legal project in the postcolonial countries. Law and judicial reforms led by a strong judiciary are at the core of the good governance paradigm. For example, indicators like ‘Regulatory Quality’ (sometimes referred to as ‘regulatory burden’), which is an assessment of all laws and policies by how they measure up against an ideal market economy. Through this, a whole body of enactments, amendments, legislations and repeals of laws in developing countries, including Pakistan, are measured for governance of the market economy.
Yet, people should also be made to respect these ‘laws’, in a Hobbesian sense, and here we find the sub-paradigm of ‘Rule of Law’. This comprises several indicators, which measure the extent to which foreign investors and ‘agents’ have confidence in and abide by ‘the rules of society’. The predictability of judicial decisions and contract enforceability are key here. I will call this entire complex the Project of the Judiciary.[42] The judge, according to Trubek, is the leader of this phase of law and development.[43] That was the height of the liberal legal project in postcolonial societies.
Why did strong judiciaries arise in Pakistan, India, Bangladesh, Egypt, and elsewhere?[44] Apart from explanations of judges’ bravery and lawyers’ commitment for the rule of law or IFIs push for legal reforms, the new place of the judiciary should be analysed as a part of current level of complex hegemonic project in its historical trajectory from the colonial period to modernization under neoliberalism. The continuous failure of the liberal legal project in postcolonial countries is not because of bad judges, military intervention, corrupt politicians or implementation issues (governance) only.[45] All the liberal analyses in Pakistan never challenge the assumptions within the institutionalist-functionalist understanding of law, state, society and development.
1.2.3 Critique of Institutionalist-Functionalist Paradigm:
The Issue of Change in Postcolonies
In postcolonial societies particularly, highly unequal property relations are a fundamental cause of conflict and a hindrance on the path of political and economic development. As opposed to this, institutionalist analyses, take property relations and relating laws as the empirical base upon which successful development occurs.[46] Liberal legal project does not look at above contradiction rather, it reduces all the problems of the liberal state formation to differences, paradoxes, opposition, strain, tension, disequilibrium, dislocation or imbalances and, if open strife, as conflicts.[47] But these contradictions in laws and constitutional arrangements are the contradictions of the political and the social in postcolonial societies.
In postcolonies, the volatile nature of legal arrangements seems a clear indication of instability at the political and social level, arising out of the exclusion of large masses of the people at a structural level (property).Contradictions are greater in class-divided postcolonial societies than in the class societies of the West. The latter have inequalities, but the former have a far more highly unequal distribution of resources. The more these contradictions are at the structural level, the more is the complexity of the hegemonic project of the ruling elite, that is, hegemony along with coercion.[48] Instead of answering the question of the extreme nature of contradictions, the exclusion and marginalization of huge sectors of the population, it is glossed over in the liberal legal project by reducing the issues to ‘managerial’ level of ‘governance’. For example, institutional explanations show that the working class is represented in the assembly whereas they are not. Even turning out for elections for many times, there is not a single working-class person in the assemblies of Pakistan. Quite contrary to this, no constitutional and legal explanation can reveal the presence of U.S. imperialism (a very structural issue of Pakistan’s dependency relation). Whereas, the U.S. was part of all the overthrows of democratic regimes and backing of the dictatorial regimes, from modernization to the current era of neoliberal governance. So the institutional and constitutional analyses hide what is present but not visible (structure) but shows or expects what is not present, that is, equality before law and representation.
My intention is to unearth that layer or instance of social reality where this exclusion is naked, that is, structure. As well as, the analysis in this book wants to counter individualistic and voluntarist view, which means that social processes are reproducible to apparently unconstrained actions of individuals. It also wants to conclude that overemphasis on the need of institutions or the overextended institutional analysis of our times is problematic in developing countries like Pakistan. Similarly, legalism in legal practice or a toll for politics, as an overextension of institutionalism, is fundamentally antithetical to a broader and deeper democracy. This is a matter of change in these postcolonial societies and the law has very limited emancipatory value. Anyone concerned with change in postcolonial societies, should be clear that laws, regulations and rules of the game (institutions) in New Institutionalism behind good governance are for organizational stability, not change.[49] Rather, revolution and illegal struggles are considered as disorder.[50]
Therefore, to properly grasp the change in postcolonial societies, analysis should bring into consideration the space around and beyond law while analysing law. This space is where the marginalization of the marginalized actually happened, that is, the economic instant of social formation. Furthermore, there is a need to know the role of law in the reproduction of system. That is, to include in legal analyses a certain ‘consciousness’ of the ‘legal subject’ and law as a part of ‘hegemonic’ project by the elite. Below is such an attempt to broaden the analysis of law and judiciary beyond the confines of institutionalism and functionalism.
1.3