A Pakistani theory of justice

We need a Pakistani conception of justice which builds upon common law, Islamic inheritances and South Asian heritage.

Over the last weekend I had an opportunity to speak at the International Judicial Conference organised by the Law and Justice Commission of Pakistan and hosted by the Supreme Court of Pakistan. I was a bit apprehensive about speaking at such a conference as being a historian, I thought I would be a misfit, and even the people at the entrance were rather confused at a historian turning up! But very soon, I realised the importance of a non-lawyer/judge at such a conference.

Following the works of John Rawls and Amartya Sen, I argued that Pakistan needs to evolve its own understanding, even a theory, of justice. I argued that not only was such a development important for understanding of concepts of justice, but that it was essential for human development. In a society, the constitution is the supreme document, something which Dr Akmal Hussain has called the “grundnorm”. All concepts and powers — legislature, judicial and executive — emanate from it. But the Constitution is not just limited to these obvious powers. It is also the basic economic document, and hence affects economic growth by providing incentives (or disincentives) for growth and development. Charles Beard had argued this about the US Constitution a hundred years ago. Therefore, when one examines the functioning of law and the courts under the judicial system emanating from the Constitution, its realm and effects are quite expansive.

Furthermore, I argued that we need to fully grasp and internalise what justice really means. It is not simply adjudication but something beyond — as Sen argues while explaining the concept of nyaya. This nyaya goes beyond the normative and promotes social justice and equality — something Sen regards as essential. In the Islamic context, we understand this concept as Adl, which means that things are put in their right place, referring to both adjudication and social justice.

Therefore, I argued that we need to think more about evolving a Pakistani conception of justice which not only builds upon our common law and Islamic inheritances, but also does not ignore our South Asian heritage. After all, Pakistan is equally a part of the concepts of governance elucidated by Kautaliya in the Arthashastra, the edicts of Ashoka, and the laws of Manu, for example. These non-Muslim, yet South Asian, theories of governance and justice are still important for us to engage with.

As I spoke and also went to other panels in the conference, I became increasingly aware that Pakistan is seriously lagging behind in legal theory and philosophy. Apart from my slightly theoretical paper, there were hardly any papers even referring to philosophy. This lack of engagement with “ideas” as one learned judge argued in his remarks, was something which is holding us back — and I could not agree more.

In Pakistan, there is scarcely any engagement with the idea of justice. People criticise the bench for some rulings, the judges react, and the story goes on. No one really discusses the “point” behind all of this. Obviously, there is politics and expediency involved; however, we need to also think about where is this all leading to? What is the ultimate end of a judicial system, nay, even a system of governance? What principles, grounded in our past and our multiple and rich inheritances, guide us in making rules and regulations, and how do they promote the progress of our people and our country? These are the critical questions we need to ponder on.

In the end, I was rather impressed by the judicial conference. While the conference did not address all the important issues, which no conference really can, it showed the keenness of the bench to engage with issues, exhibited the eagerness of the bar to engage with them, and the ability of the judicial system to at least begin thinking about them. I was pleasantly surprised to see how gracious all the Supreme Court judges were, how they mingled with literally everyone and how they always listened and engaged. People in Pakistan always talk about change at the top, and this conference was certainly a move in the right direction by the Supreme Court. I am eagerly awaiting the next one!

Published in The Express Tribune, April 23^rd, 2013.