And yet it moves

In the days when I still taught jurisprudence to budding bureaucrats, my favourite topic was legal realism. Because if there was one idea which regularly exploded their minds, it was the concept that law was simply a tool, a means to social ends; and that, like any tool, it had to be judged by the results it produced.

Why is this concept such a big deal? It is a big deal because there are multiple aspects of governance in Pakistan where the systems in place simply do not work; see, for example, the legal system. Yet, there is no serious demand to change those systems. Instead, the assumption is that if a system does not work, it is because of something that we — the people — are doing wrong and that the systems themselves are fine.

By comparison, legal realism begins by rejecting the assumption that there is anything inherently sacred or desirable about a particular law. If it works, fine. If it doesn’t, ditch it.

Legal realism may just seem like common sense by another name but it is much more radical than that. In his brilliant new book titledThe Long Divergence (Princeton University Press, 2010), Timur Kuran (professor of economics and Islamic studies at Duke University) writes how certain aspects of Islamic law (such as the law of inheritance) held back economic development of the Middle East for centuries. It is difficult to read the book and disagree with his conclusions. But does that mean we are willing to consider revising inheritance laws in Pakistan? I don’t think so.

Let me be honest here. I do not think that we as a society are ready to start applying legal realism to Islamic law. Rationalist jurisprudence in Islamic law died many centuries ago and has yet to be revived. But what is far more disturbing for me is that, even outside the boundaries of the ostensibly divine, we cling to modes of thought and action which no longer work.

Take, for example, our legal system. It is an indisputable fact that our legal system is comprehensively dysfunctional. As a lawyer who regularly advises investors, my standard advice is that they should assume they will not be able to enforce contracts in Pakistan and that they will not be able to recover amounts due to them within any commercially reasonable period of time.

It takes no great learning to understand that a legal system in which contracts can freely be broken and through which money cannot be recovered, is less than ideal from an economic perspective. And yet, there is no substantive effort being made to reform the legal system. Yes, a new judicial policy did come out in 2009. Yes, the new policy recognises that delay is a problem. But it rejects the contention that there is any fundamental flaw in the system. Instead, it explicitly states that it “seeks to achieve its objectives, by efficient utilisation of existing resources. We have to operate by remaining within the given legal/procedural framework. The laws are indeed time-tested”.

There is a phenomenon in social science called ‘path dependence’. One well-known example of this is the ‘QWERTY’ keyboard layout, which was originally adopted so as to keep the most-used letters as far away from each other as possible (and avoid mechanical problems). That mechanical restriction is no longer relevant but we are still stuck with an illogical arrangement of keys.

Pakistan’s legal system today, and especially our laws relating to land title, is a textbook example of ‘path dependence’. In brief, we have no system of recorded land title. Instead, all we have is a system that records who is liable to pay taxes on land. We have this system because back in the days when the Sultans of Delhi used to arrive as invaders from Kabul, they found it more convenient to dish out tax fiefdoms (i.e., jagirs) than to set up systems which recorded one’s title (unlike, for example, William the Conqueror). This system was then adopted by the Mughals and, when the Mughals collapsed, by their former dominions. When those dominions were then conquered by the East India Company, the systems in place continued, as they did when the East India Company was replaced, first by the British Raj and then by the independent state of Pakistan.

There are two reasons why all of this historical baggage is important. First, the vast majority of disputes in Pakistan relate to land. Second, the vast majority of those disputes would not exist if we had an intelligently designed and modern system of land laws.

To put it another way, our legal system does not work today because it is overwhelmed by the number of land-related disputes. And it is overwhelmed by land-related disputes because our inherited systems of land law encourage and reward frivolous litigation. Does that mean we should consider changing our laws? Absolutely. Are we going to? Not bloody likely.

To return to where we started, my fundamental point is that we must learn to judge laws by the results they produce. A law which produces lousy results is a lousy law, irrespective of why it exists. And a law which produces good results is a good law, irrespective of where it originates.

Many centuries ago, Galileo was called upon by Pope Urban VIII to recant his heretical position that the earth moved around the sun (or else lose his head). According to legend, Galileo reluctantly repeated what he was told but then, as he turned around, muttered “e pur si muove”. (And yet it moves).

Law is a means to social ends. When the ends move – and they do – it is necessary to change the means earlier adopted so as to continue to achieve those ends. We can pretend that societies don’t change and that social ends don’t change. And yet they move.

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