Pakistan_ A Hard Country - Anatol Lieven [50]
It would be quite wrong, however, to see the Pakistani masses faced with the state justice system as simply the passive, sheep-like victims of predatory lawyers, judges, policemen and political elites. This is true, but it is also true that the vast majority of Pakistanis (and Indians) with even the most limited power to do so have contributed to the wreckage of the state judicial system by their constant efforts to twist it to their own individual or group purposes. One reason for this is the continual struggles for power which permeate Pakistani society – struggles in which politics and property are often inextricably mixed. In turn, these struggles generate and are generated by the lack of mutual trust that permeates Pakistani society, between but also within kinship groups.
An additional and disastrous factor is also present. However much, in England in the past, men may have bribed or intimidated judge, jury and witnesses, while at the same time swearing hypocritically into their beer that the law was an ass, they still had a feeling that, however corrupted, the law was English law, with its roots in England and stretching back to the very beginnings of English history.
No Pakistani can feel that his state law is Pakistani law in this sense, for the obvious reason that it isn’t. It is British law, as transmitted by British rule to the empire of India, adapted to the purposes of ruling India, and somewhat modified by Pakistani governments and parliaments since independence. All over the former colonial world, modern legal systems have been undermined by the fact that they were imposed from outside, have never been fully accepted by the mass of the population, and often clash with that population’s traditional codes.
This is also true to some extent in much of neighbouring India. In Pakistan and other parts of the Muslim world, however, the state judicial system faces a dual challenge to its legitimacy: from traditional, informal and unwritten local practices (and the moral orders and loyalties they reflect) called in Urdu rivaz, and from another great formal, written legal code, that of the Shariah.
The state code and the Shariah are both by nature ‘great traditions’ in the legal sense, strongly and essentially opposed to the ‘little traditions’ of the old local and kinship-based codes. They are in competition with each other to replace those codes, though both have at different times and in different ways sought accommodations with them. Indeed, the Taleban in the Pathan areas owes much of its success to its successful blending of Shariah and pashtunwali.
Both the state legal code and the Shariah are reformist and progressive codes in the context of Pakistani customary justice, especially as far as women are concerned. As will be seen in subsequent chapters, the most ghastly atrocities against women in Pakistan have been committed as a result of judgments under customary laws, not the Shariah. In the face of the – let us be frank, often barbarous – tribal traditions of the Baloch and the Pathans, the Islamic code stands where it stood when it was first created by the Prophet Mohammed to civilize the pagan tribes of early seventh-century Arabia. This is something which British imperial administrators in the region fully recognized and sought to exploit.
The competition of judicial codes is intimately related to the weakness of the state in Pakistan, and Pakistan’s difficulties in developing as a modern society and economy. For the idea of the modern state is largely bound up with the idea of the population being subject to one legal