Chapter 1: Overview of the Study 32
1.3. Main Research Question 37
In this backdrop, the main question addressed by this inquiry is: How may we understand the socio-‐legal situation of Pakistan? As this question leads to several secondary questions as a corollary, a deconstruction of the main research question is required before it can be considered in depth. There are three main components of the question in consideration: Which situation of Pakistan are we trying to address? Which phenomena are encompassed within the category of socio-‐legal? And, what does the thesis mean by understanding these phenomena? I will briefly consider them in turn.
In recent discussions on the situation of law, society and the State in Pakistan, the term is employed to address anything from extremism, terrorism, and political and economic instability,90 to inefficiency of governance apparatus and
inadequacy of Rule of Law mechanisms.91 I argue that the matter here is not
about selecting which one of these in isolation is the most significant aspect of the said situation; rather, they together form the overall context in which any meaningful discussion on law and society in Pakistan can take place. The legal
90 See, generally, Yousuf Nazar, Balkanisation and Political Economy of Pakistan (National News
Agency, Karachi, Pakistan 2011); Usman Mustafa, 'Determinants and Implications of Major Conflicts in Pakistan' (2013) 4 (1) Millennial Asia 67.
91 See, for instance, Robert D. Lamb and Sadika Hameed, 'Subnational Governance, Service
Deliver, and Militancy in Pakistan' (Center for Strategic & International Studies, Washington, D. C. 2012).
situation of Pakistan is considered a situation only because it provides us a snapshot to allow comprehension and discussion; it is not a situation based on any temporal fixity, geographical permanence or a definite set of spheres. This does not imply that the current thesis or any single treatise can account for all these disparate spheres. Though not dealing with them explicitly, the case presented here is that some of these occurrences (for instance, the rise of the extremist religious narrative in the country, the problems of governance and rule of law) are interlinked and cannot be considered in isolation. Moreover, these problems, rather than being self-‐constituting and self-‐contained, are manifestations of the country’s society-‐state-‐law disconnect. These problems do not merely exist because of the inefficiency of the legal system; rather, they exist because of the crises that lay at the foundation of law and the State in Pakistan.92 Some of the nuances of law and the state as they are situated in the
country elude the narratives commonly employed to understand them, and therefore the issues that emerge from them appear as distinct phenomena. These incidences, then, are symptoms of a much deeper problem of law and the state and, as will be discussed in the following chapters, they form the backdrop of the context the thesis is attempting to read.
The second component of the main research question emerges from the view adopted here that an exclusive emphasis on the category of law, as it is generally understood, subsumes the discussion to focus on legal instruments and mechanisms. This is why a crucial aspect of the main research question is
the emphasis on the socio-‐legal nature of the project. While the thesis does employ the category of socio-‐legal, it is with some caveats – after all, the research does not present a viewpoint of the particular members of society who adhere to the discussed normative and legal systems, or indeed present a survey of how these structures impact the lives of participants.93 It does not
follow the mainstream socio-‐legal method of starting off from a literature review, conducting ‘field-‐work’ and surveys based on the conceptual model, and then analysing the ‘data’ and ‘findings’ observed through this brief linkage with the society.94 Is it then accurate to term this a socio-‐legal research and, if so,
what is the rationale behind it? I would argue that it is not only correct to use the category of socio-‐legal, but it is also essential to do so. The legal terrain that this research examines provides us an overview of the broad societal context, focussing on the most prominent (as the existence of others cannot be precluded) normative and legal orderings that exist within this context.95 It is
set in an environment in which these systems engage and encounter each other. Law, including state law with its dominant role, is taken here as part of the larger societal set-‐up, where other normative orderings come into conflict with it and struggle with it. Examining the socio-‐legal context therefore allows us to not only study different legal structures within the country, but also to frame
93 On the topic of the methodological difficulties for socio-‐legal studies as a discipline, see Reza
Banakar and Max Travers, 'Theory and method in socio-‐legal research: Introduction' in Reza Banakar and Max Travers (eds), Theory and method in socio-‐legal research (Hart, Oxford 2005). On the wider issue of socio-‐legal studies in the Third World, see Radha D'Souza, 'Imperial Agendas, Global Solidarities and Third World Socio-‐legal Studies: Methodological Reflections' (2012) 49 Osgoode Hall Law Journal 409. D’Souza argues that even the prominent categories within socio-‐legal studies, such as ‘society’ and ‘pluralism’ etc., need to be reconsidered in their relation to the realities of the Third World countries.
94 Jayan Nayar, 'The Politics of Hope and the Other-‐in-‐the-‐World: Thinking Exteriority' (2013)
24 (1) Law and Critique 63, 70.
them and find their place in the larger societal order. In this manner, the thesis approaches ideas of law and legality as the dominant frame of analysis, situated within the wider context.
Finally, the use of the term understanding in relation to the socio-‐legal situation of Pakistan is not merely to list or describe multiple facets of the socio-‐legal architecture of the country, albeit this description of the diverse elements of the socio-‐legal terrain is the first and necessary step. Within the growing, but still not sufficiently substantial, socio-‐legal research studies conducted on the various areas of law in Pakistan, one struggles to find expositions that would bring together and outline the different and disparate legal or normative orderings in one place.96 In the past few years, some exceptional accounts on
the conceptual and historical trajectories of Islamic law,97 colonial law and
constitutional law of Pakistan have emerged.98 There are also a growing
number of publications on human rights and the conflicts between individual rights and traditional customary tribunals.99 However, as these accounts mainly
96 There are useful insights offered by some notable socio-‐legal scholars, which I have combined
and built on. See, for instance, Shaheen Sardar Ali, 'Applying Islamic Criminal Justice in Plural Legal Systems: Exploring Gender-‐Sensitive Judicial Responses to Hudood laws in Pakistan' (International Judicial Conference, Islamabad, Pakistan, 2006); Martin Lau, 'Discussion Note on Informal and formal systems of rule of law: How does the donor community approach legal pluralism?' (World Bank Headline Seminar Seminar III: Rule of Law in Fragile and Conflict-‐ Affected Situations, London, 2009); Werner Menski, 'Flying kites in Pakistan: Turbulences in theory and practice' (2010) 1 (1) Journal of Law and Social Research 41, 51-‐52.
97 See, for instance, Martin Lau, The Role of Islam in the Legal System of Pakistan (Martinus
Nijhoff Publishers, Leiden 2006); Rubya Mehdi, The Islamization of the Law in Pakistan (Nordic Institute of Asian Studies Monograph Series No 60, Curzon Press, Richmond 1994).
98 See, Osama Siddique, Pakistan’s Experience with Formal Law: An Alien Justice (Cambridge
University Press, Cambridge 2013).
99 See, for instance, Shaheen Sardar Ali, 'The Rights of Ethnic Minorities in Pakistan: A Legal
Analysis' (1999) 6 (169-‐195) International Journal on Minority and Group Rights 169; Nasira Iqbal, 'Legal Pluralism in Pakistan and its implications on Women’s Rights' in Jennifer Bennett
maintain a focus on selected elements of the socio-‐legal architecture or any one of the relevant thematic areas (such as pluralism, Islamic law, and so on), for new researchers or readers of socio-‐legal studies to discover what may be included within the labels of legal and socio-‐legal in the Pakistani context becomes an incessant process of re-‐inventing the wheel. Laying out all the disparate aspects of the country’s legal tapestry into one place is therefore the essential first step towards understanding the legal and socio-‐legal situation of the country, as well as the first contribution of this study.
Outlining the multiple normative and legal orderings of Pakistan inevitably leads to questions on their links, encounters and conflicts. The need to examine these orderings and their encounters exists, not to forecast or predict their future direction(s), but because we do not even have adequate knowledge about their past. The entire purpose behind this exercise is that if a holistic picture of the phenomena could begin to take shape, it might allow us to frame the issues through a different lens and assist us in moving towards a conception of the legal and normative systems that is more responsive to the needs of the country’s populace.100 This is where legal and political theoretical perspectives
help us. By highlighting what arguments lay at the heart of the prominent narratives of law, the theoretical propositions assist us in reading the situation, deciphering the institutions involved, and make us aware of the problems and pitfalls associated with our reading(s). As will be discussed in the course of this
(ed) Scratching the Surface: Democracy, Traditions, Gender (Heinrich Boll Foundation, Lahore 2007).
100 See, section The need to examine Pakistan’s Legal Tapestry, in Introduction of the current
thesis, however, a number of mainstream legal-‐theoretical paradigms and the narratives they generate prove problematic when considered in isolation, and are unable to adequately analyse the lacunae that are unique to the legal architecture of Pakistan. Nevertheless, these theoretical viewpoints offer us valuable insights, which can and should be built upon.
The thesis, therefore, approaches the subject matter as a two-‐way dialogue: it scrutinises the socio-‐legal architecture of the country from theoretical standpoints, while simultaneously questioning, from the point of view of Pakistan’s legal realities, the dominant narratives of law that are constructed on such propositions. The theoretical propositions have been approached primarily because they are, or have been, employed by legal academics and practitioners to explain the nature of Pakistan’s legal frameworks, recognise their problems and offer solutions. The ultimate aim of the thesis is to advocate the development of context-‐specific theories (in the plural) of law emerging from, and applicable to, the context of Pakistan. It offers one attempt towards this, with the goal of inviting discussion, critique and further endeavours.