Dec 1, 2019

Lawyers as Scientists

In Thomas More’s seminal work, Utopia, the travelling philosopher, Raphael Hythloday, recounts a conversation he once had with a lawyer regarding the prevalence of theft in England. The lawyer had been pondering over why people continued to steal when the punishment for theft was as severe as death? Hythloday explains that people resort to theft due to an array of economic and social factors, such as increasing poverty and the ‘enclosure movement’ in England at the time. He states that until these underlying issues are resolved, people will continue to steal despite the harshness of the punishment.

Whenever I teach Utopia, I encourage my students to understand from this exchange that law does not exist independent of the social and economic framework of a country. It can only be understood within that framework. To try to cure the ills of society by simply pronouncing to “make more laws” is to expect from law far greater things than it can achieve.

A society’s problems must be examined through a more critical lens before embarking on crafting laws to cure them. For example, upon the death of Salahuddin Ayubi in police custody, a debate on curbing police torture was ignited. One of the most popular solutions to the problem of police torture being proposed is that we need a law that specifically deals with this issue.

But such a law may not be the solution people are looking for.

Consider this: torture is already prohibited under our Constitution. While a new law may create more avenues for redressal for victims of this practice, it will surely only result in creating new ways to punish the police or exclude evidence obtained through torture. At this point, that may be the maximum it can accomplish. It will not succeed in eliminating the problem of torture itself.
To do that, we must first identify why torture has become so normalised in our police system. Is it because the police believe that the criminal justice system has such a high burden of proof that they have to extract a confession to get a guilty verdict? Is it due to a lack of training in modern evidence gathering? These are just two simple questions that must be analysed in order to get to the root of the problem. We must probe into the mindset behind torture and gather data if we wish to eliminate this problem. If we don’t, the law will remain oblivious to these issues and will, therefore, be unable to resolve them.

Laws combating social evils can only work if they are made by understanding the social reasons behind the issues and not by slapping on harsher punishments. Doing so in a perpetual cycle while expecting different results is simply following the route that defines insanity. We can do better.

The legal community is currently not interested in analysis. It is obsessed with the concept of what is known as “public interest litigation” or “PIL”. Now a PIL can be of various types, but I want to focus on the lawyers and litigants who file cases before the higher courts asking for judgments that will — in their minds — give rise to social change. Recent examples are: trying to get domestic workers their rights; attempting to eradicate our climate change woes; banning plastic bags; and trying to eliminate food wastage.

These cases are filed with good intentions (though sometimes for publicity — there was one that tried to get a gargoyle statute outside the Lahore Museum removed), but end up achieving nothing more than getting a grand statement from the courts. This is because both litigants and judges see the use of legal sanctions as a solution to layered and complex societal problems. In short, they change nothing.

Nothing changed from the countless PILs filed to fight Lahore’s smog or those regarding climate change. The PIL filed regarding domestic workers has actually resulted in a law, but this law might as well be gathering cobwebs in a closet somewhere because it has failed to deal with the social and economic power disparity that gives rise to the exploitation of domestic workers.

Law by itself cannot give rise to social change.

The lawyers who file PILs try to replicate the American judicial review model through which cases like Brown v. Board of Education (in which racial segregation in schools was declared illegal) have been decided. But they miss what has happened previously.

Cases like Brown have been the result of strategic litigation. Thurgood Marshall, a civil rights lawyer, and his team, took baby steps before they got to the Supreme Court. They knew that a Supreme Court verdict, even if it was in their favour, would mean nothing if a majority of the American society was not on their side first. So they slowly filed away at the iron shackles of segregation through grassroots advocacy challenging milder segregation laws and political lobbying, until they felt people’s support for them. That was when they went to court and made history.

Those hoping to take on the task of reform through law must work with social scientists. Lawyers, even legal academics, often do not have the tools to analyse certain issues from a scientific lens. But working together with those who do can yield studies regarding things like why torture has become so normalised in our police force the social and cultural reasons behind the abuse of domestic workers.

These studies will give us data. Hard numbers. Once we analyse the data, we can propose solutions. These solutions can then be materialised through laws.

Lawyers then must work with scientists. Or, lawyers must be trained in social sciences. It makes sense to do so since the law exists in a context and the best lawyers are those who understand that context. This is a big reason why the American legal education system has merit. It forces people to gain knowledge in a different field before pursuing a law degree.

Our current local legal education system lacks that. A two-year BA requirement is nowhere near achieving that goal and when students do pursue legal education, they are continuously taught as if the law exists in a vacuum.

It does not. Until we discard that notion we cannot use the law to change anything.

— Hassan Niazi