Chapter 1: Overview of the Study 32
1.4. Four Narratives and Four Assertions 42
In light of the discussion above, there are four primary arguments that are offered in this dissertation. First, it brings together and problematises the history and conceptual trajectories of multiple (and more prominent) normative and legal orderings in the country. The list of these normative orderings includes notions of common law and constitutional traditions, Islamic
Law, traditional law, the law of the tribal areas, as well as the increasing spheres of ‘lawlessness’ and violence. The argument here is that these normative and legal orderings do not form disparate realities, but should be read as part of a whole – it is only when we move towards understanding them as threads within a single Tapestry that we can begin to comprehend Law in the Pakistani context.
It is important to qualify why the terminology of socio-‐legal tapestry is significant here.101 Thus far, the thesis has employed the terms ‘legal
architecture’ or ‘framework’ when addressing the constitutive peculiarities of the legal set-‐up in Pakistan. I am aware, however, that the use of all these terms in this context (set-‐up, architecture, framework, formation, structure) is inadequate for two reasons. One reason for the inadequacy is that such terms appear to signify that the system they refer to has a pre-‐defined purpose and a telos which consciously provides a rationale for the system’s particular shape and constitution. Moreover, these conceptual categories imply that the system is a holistic entity with internal consistency, with its constitutive elements or sections arranged in some kind of order, or co-‐existing with some kind of an agreement. These elements or sections may overlap, but they nevertheless are implied to have a mutual acceptance for each other or the whole ‘framework’ or ‘structure’ breaks down. As the following chapters will show, it is difficult to read the legal architecture or framework of Pakistan in the said manner. The constitutive elements of the legal framework of the country have emerged from different historical trajectories, different conceptual and normative notions,
101 With thanks to Dr. Jayan Nayar for suggesting the term ‘tapestry’ to approach the complexity
different needs and realities. These constitutive sections are also in a struggle amongst themselves, competing to dominate each other, vying to impose one’s own normative definitions over the other. So the use of the terms framework or architecture here is with a caveat – the phenomena these refer to are not always consistent, similar or symmetrical. These different claims to law exist in a conflict with each other, which is at times violent, each judging, negating or trying to overcome the other on its own terms. Each of these normative orders and narratives pulls the terrain towards different tangents. In this sense, the socio-‐legal setup of the country is more akin to a tapestry, with interwoven threads of different normative orderings – considering any of these in isolation from the others creates a gap, and pulling one (normative) thread away from the others creates the possibility for the entire framework to collapse.
The second assertion made in this thesis pertains to the dominant narratives employed to understand or explain, both law within the context of Pakistan, and the complexity of the socio-‐legal architecture. As mentioned above, the thesis examines these narratives that are employed, in common discourses as well as academic or legal practitioner accounts, to understand the functioning of law in the country. These narratives problematise the situation through their own specific logics, highlight the deficiencies of the systems through their own readings, and offer solutions based on their own judgements on the issues.
In this regard, I argue that there are four main narratives that dominate the reading and perception of Law in the context of Pakistan. The most prominent
narrative focusses on law as a specific domain of the state institutions and focuses exclusively on the constitution, legislations, court judgements and state proclamations. This, as it would be elaborated, is based on the tradition of common law which is part of the colonial legacy of the region, as well as the prevalence of the legal positivistic discourse within the spheres of legal practise and academia. The second narrative approaches the common law and positivist notion as ‘alien’ legal traditions, and criticises the colonial legacy of the region. With the idea that the current legal and judicial architecture was imposed on the region by the colonial authorities to further their own aims of governance, this narrative favours the normative orderings allegedly more rooted within the region’s history, and prefers the notion of Islamic law in place of a western-‐ styled legal system.102 The third narrative to understand law in the context of
Pakistan in part emerges from the second narrative. Based on the ideas of legal pluralism, it critiques the colonial legacy that underpins the state law and formal legal institutions and then argues for the resurrection of, or a return to, the local and indigenous mechanisms of justice. This perspective mainly argues that the state law, indigenous laws and Islamic law are all valid and legal normative orders that co-‐exist within the Pakistani context, and should be respected as such. The fourth narrative, though an emergent one, is increasingly gaining a dominant position among civil society activists, Non-‐Governmental Organisations and even among the legal fraternity. It criticises the misogynist, sectarian and elitist practises within the forums of state law, Islamic law and traditional tribunals from the perspective of Human Rights. It is primarily
102 Khurshid Ahmad, 'Islam and Democracy: Some Conceptual and Contemporary Dimensions'
geared towards the demands for state’s accountability and goes as far as claiming that every other legal/normative order that exists outside the state’s authority is illegal.103
As modes to ‘organise and make sense of the experience and action’,104 each of
these narratives reads the situation of Law in its own particular manner, with the framing of issues and problems, as well as solutions to these, based on their initial perception or structuring of the situation. I argue that while these narratives provide us with useful insights about law in the context of Pakistan, their foundational logics compel them to ignore those facets that do not conform to their predefined categories. In order to maintain their internal consistencies, these narratives exclude far more than they include in their analyses and, in this process, the viability of their framing and proposed resolutions comes into question. The myopic and isolationist standpoints adopted through these narratives ignore the country’s socio-‐legal realities, which undermines their own assumptions. But it is important to state here that this critique is primarily levelled against the narratives built around the multiple legal-‐theoretical frameworks, rather than against the frameworks themselves. Indeed it would not be possible, or even desirable, to analyse these diverse formulations such as human rights, pluralism or Islamic law in a single study. The current thesis therefore differentiates these frameworks from the narratives that emerge from them, who mutilated form can be identified in
103 Chapter 7 on page 228.
104 David Carr, Time, Narrative, and History (Indiana University Press, Bloomington, Indiana
Pakistan’s legal and political discourse. These issues will be elaborated in the course of this thesis, as subsequent chapters will consider each of these narratives in depth.
The third key assertion of the thesis emerges from this problematisation of the dominant narratives of law, which prove unable to explain the lacunae of the complex legal tapestry of Pakistan. I argue that these contradictions and the different facets of this legal tapestry exist in the footprint of historical colonialism and consequent notions of ‘Coloniality’105 that still dominate the
normative orderings. Therefore, a preferable approach to understanding the complexity in question is to situate the current system of law in the narrative of continuing Coloniality, through which the crises at the heart of the system(s) can be approached in a more nuanced manner.
Fourth, and finally, the thesis makes the case for an alternative lens through which some of these contradictions and lacunae can be framed and understood better. Through building on the framework of Coloniality the thesis argues that it is not the inefficiency of the state and the lack of nation-‐building measures that lay behind the problems that Pakistan is currently embroiled in; rather it is the flawed logic of state formation and nation-‐building that have resulted in disastrous consequences.
105 Walter D. Mignolo, 'Delinking: The Rhetoric of modernity, the logic of coloniality and the