THE recent shouts of lawyers at a convention to ‘uphold the Constitution and the rule of law’ got me thinking of what exactly that means. How does one really uphold the rule of the law when the rules are all muddled? In particular, does a text such as the Constitution really lay down the rules of the game? Or how does any text, legal or religious, create those rules which are to be and, indeed, are followed? What really are the rules of the game in play and are they textual in import?

I acknowledge my own naivety in asking these questions, for the simple answer seems to be yes. That’s why we have a Constitution and an attic worth of old laws on a whole host of subject areas. But are they really followed? The essence of this inquiry seems to be on the basis of the worth and impact of a text in creating the rules of conduct. It may be the case that a man simply declares such texts to be mere paper to be chucked away. That we have seen. People wiser than me have done a lot of philosophising to answer such questions of ethics and law.

I am reminded of one of my most influential professors at university who had coined the term ‘logo-centric deontology’. It refers to ‘deon’ — the rules, or obligations emerging from ‘logos’ — the word, particularly the divine word, from which everything springs. The force of the ethical rules and as a result, of the law would emanate from the ‘logos’ — the text in itself. Now this harkens to a worldview (philosophers and my professor love to use the word ‘Weltanschauung’), which immerses a society foundationally on the moral validity of textual rules. Ideas of consequentialism and utilitarian principles take a back seat.

The Constitution as the foundational legal text laying down the rules should be afforded the sanctity it deserves. It can be argued that our state is built upon the foundations of Islamic modernism which again referred to a ‘going-back-to-the-text’ to go forward in social and political life. The chain which goes back to Shatibi and his use of the Maqasid al-Sharia with a focus on the telos of the text includes Sir Syed and Iqbal. The point being that the text, religious or legal, was to be dominant in laying down the rules of the game. That has not come to be, not in the popular imagination and not in our collective reverence.

When you don’t like how the game progresses you flip the board.

For this seems too good to be true in a land where, if the judges of the high courts were to peer out of their courtroom, they would see the people they set free through judicial pronouncement under the Constitution, being rearrested: a country which has seen the ups and downs of constitutions and a conspicuous lack of constitutional ethos coupled with flagrant abuses of human rights.

Are the rules of the game not set in stone? They certainly seem not to be. We have treated the Constitution on even a ricketier foundation than an old Ludo board — when you don’t like how the game progresses you flip the board. That seems to be one rule we have consistently stuck to. To a sceptic, this would mean that there are no rules of the game. Power is power after all as Cersie Lannister put it. With the rules as fluid as the ink on the text, power politics takes centre stage. After all, you do need muscles to uphold something. Exactly what you are upholding and how important it is, absurdly depends on the strength of those muscles.

Law indeed deals with power. It creates structures and interconnections of power. There also lies a certain episteme which it creates — a system of understanding and knowledge of why and how law creates these structures. This is a logo-centric episteme. We have a foundational legal text in a society which largely also prescribes to a moral and ethical understanding emanating from textual sources. The words are not just written, they also come out and speak from the text in society and state. Yet their voice is unheard.

In 1957, Justice Javed Iqbal met the then president Iskander Mirza and asked to be placed in the Advisory Islamic Commission — the precursor of the Council of Islamic Ideology. When he expressed his interest in researching Islamic law to aid the lawmakers (as Iqbal had envisioned), he was met with a chuckle and a sarcastic comment by Mirza that we don’t want such work to be done. The real law lies elsewhere and not in the text: that seems to be the dilemma at the root of our legal system. For a society and state immersed in that logo-centric tradition of rules and moral authority, how have we stumbled so far as to display such disdain for the foundational text? The apple has fallen far from the tree, unfortunately.

The writer is a litigator based in Islamabad.
mohsin.masood@ajuris.com.pk

Published in Dawn, September 16th, 2023