Pakistan_ A Hard Country - Anatol Lieven [51]
People move between these three codes depending on circumstance and advantage, often pursuing their goals through several of them simultaneously – as well as through violence or more often the threat of it. The authorities which are supposed to implement the state law in conjunction with the Shariah, very often end up following community law or even turning a blind eye to violence. Often this is because they have been corrupted or intimidated, but often, too, it is because the police concerned share the cultural attitudes of the populations from which they are recruited. So the nature of Pakistan as a ‘negotiated state’, in which authority is a matter of negotiation, compromise, pressure and violence, not formal rules, is exemplified by the area of law and justice.
THE CUSTOM OF THE COUNTRY
State law and the Shariah are both formal, written codes. Customary laws (which can also be described as community, familial or ‘folk’ laws) are informal and unwritten, but immensely strong, because they reflect the cultures of the people. These laws, as implemented by bodies of local elders and notables or the leading males of families, reflect the basic attitudes of the population across the South Asian countryside, and to a remarkable extent in many of the cities as well.
These laws are weaker in northern Punjab than elsewhere, but still present even there, as Muhammad Azam Chaudhary’s study of justice in a village in Faisalabad District makes clear. For a very large part of the rural population, these codes, and not the state law or the Shariah, govern rules of inheritance, the regulation of marriage and sexual relations, and the punishment of a range of ‘crimes’ or the resolution of a range of local disputes. Local people, and Western commentators, are generally convinced that these laws correspond to Islam or are even part of the Shariah – which is not at all the case.
The most famous, the most extensive, and the best studied example is the pashtunwali, the ethnic code of the Pathans, but every traditional Pakistani, Indian, Bangladeshi and Nepali community has its own version. The only large population in Pakistan which has completely shed allegiance to traditional codes are the Mohajirs of Karachi, precisely because they were migrants who moved during and after 1947 from very different areas of India.
These informal systems of justice take many different shapes, but in all cases both the shapes and the outcomes are closely influenced by local kinship and power relations. In the Western systems of justice derived from or influenced by Roman law, and in all the legal codes around the world which in modern times have been based on Western codes, all crimes should be punished, and the purpose of the law and the criminal justice system is – in principle – to abolish crime altogether. These are also the basic principles of the Pakistani state legal system, because this system is based on that of Britain.
The traditional codes of Pakistan are based on quite different aims: the defence of collective honour and prestige; the restoration of peace, and the maintenance of basic order. In this much of Pakistan resembles many other heavily armed kinship-based societies. Since these kinship groups always really saw themselves at bottom as independent sovereign groups, it is logical that the laws that grew up out of these societies should in key respects resemble traditional international law more than modern national law: that is to say they are based on diplomacy as much as rules; they usually aim at compromise