Review: The Remains of the Day

Write-up by Umer Gilani

Introduction

The movie that we saw in class is based upon a post-WWII novel titled "The Remains of the Days" written by a British-Japanese author Kazuo Ishiguro. David Luban's paper "Stevens's Professionalism and Ours" uses this story to discuss aspects of legal ethics. The novel, and the movie based on it, present certain reflections upon the nature and consequences of the ethic of professionalism. The character of Mr. Stevens, butler par excellence, is as though the very embodiment of the ethic of professionism. Lord Darlington, on the other hand, is the amateur politician who merely dabbles in politics, often with great idealism and conviction, but in a way that is anything but 'professional.' In the properly narrated story of the lifes of these two men, Ishiguro is able to provide some glimpses of the truth about his subject-matter (ethics and professionalism) - a feat quite impossible for philosophical discourses on the same subject (as you may have noticed throughout this course).

Perhaps it is that ethics is a 'lived science': it secrets may be discerned by reflecting upon life stories (one's own and others'), but which may never be described, or even understood, when abstracted from life-stories.

Why Study the Life of a Butler in Legal Ethics?

Because butlers and lawyers are both members of established professions, who adhere to a code of 'professional' ethics. Also, both (particularly transactional lawyers) offer service to clients, are entrusted with large responsiblities and sensitive information, and do their job best by being as inconspicuous as possible.

Three Types of Professionalism:

'Professionalism of deference': You exert moral choice in finding the 'right' and worthy employer. You will be guilty for choosing an 'evil' employer. However, once you have, independently and morally chosen you employer, thereafter you may not be critical of your employer's conduct, but rather serves in an way he requires you to serve, in the best possible manner. Mr. Stevens adheres to this ethics in that he chose Lord Darlington as an employer because of Darlington's nobility. He did not, however, consider it right to defect when it appeared that Lord Darlington had become a pawn in the hands of Nazism - because Mr. Stevens deferred to the judgment of Lord Darlington.

Professionalism of expertise 'consists, roughtly, in reducing evry practical question to a technical question having no moral dimension'. The American senator Lewis, at the 1923 conference, represented this view.

Professionalism of presumption is the author's aleternative to the above, both of which the authors considers deeply flawed. The vision here is that the 'professional should assume the responsibility of counseling and even correcting an employer's bad moral judgment.' The author concedes that this view of professionalism is quite anti-thetical to what is currently considered 'professionalism' - adopting this view requires us to remove much of the subservience that professionals are expected to show; rather, this view commands the professional to engage more deeply with that client so as to affect both his motives and his strategy to achieve them.

Some Simple Priciples which the Author Advocates:

1. When professional morality commands us to do something revolting to the nonprofessional conscience, the default assumption should be that the nonprofessional conscience has it right and that professional morality is too clever for its own good.
For instance, in 1923, when professional politicians were insisting on meting out an extremely harsh treatment to Germany, Lord Darligton's nonprofessional conscience revolted - and history proved him right. In 1937, when popular sentiment was in favour of confronting Hitler, Lord Darlington's professional engagement with the appeasement process turned out to be a disaster.

2. Professionalism takes the system of stations and duties as a given; its relations to history is, at bottom, uncritical and anti-utopian. It is not a morality for dreamers. Given the tremendous injustice that the current 'system of stations and duties' creates, we cannot refuse to dream about and struggle for re-ordering the system. If so, we should not adopt professionalism as our code of ethics.

In short, whereas professionalism is generally touted as a reliable moral guide for the likes of lawyers, this reading exposes the perils involved in adopting such a stance. If, in the remains of his day, Mr. Stevens is left with no love, no honour, no light and no hope, it is but the logical outcome of a life dedicated to 'professional excellence', nothing less and nothing more. A lawyer must, for moral guidance, adopt standards other than just 'professional ethics'.

Development of Developed Nations: Europe, the United States and Japan

Umair Kazi

SS 2317 Political Economy of Development & Underdevelopment

13^th November 2008

 

Compare and contrast the development models of the United States, Western Europe and Japan. Which do you find the most compelling, if any?

 

Historical development is a complex phenomenon. It cannot be traced down to specific policies, environmental conditions, or cultural roots; it has almost always been an interplay between numerous socio-economic factors. The different developmental experiences of the three regions in question cannot easily be compared along similar lines. They were each highly nuanced responses to the distribution of factors in their position within their respective time frames. Each of the three regions had a different starting point and ended up with their own peculiar mix of development ideology. This paper tries to make some connections between the socio-political conditions and responses of each and aims to arrive at a rudimentary commentary on which is the most compelling course of action.

 

Western Europe: Workshop of the World

 

Most scholars would agree that the glory days of European development were those that hosted the Industrial Revolution. There is also no argument that England was at the forefront of this revolution, and it was from here that the effects of industry spread throughout the continent. The English nation, followed by the Europeans as a whole, were the earliest examples of the paradigm of economic development as we see today. For the purposes of this paper we will not solely concentrate on England, but regardless there is no denying that the United States, and later Japan, are in a way descendants of the original industrial states in the British territories.

 

The developmental age of the entire European nation was a logical following of the English advancements in industry. This society was, economically speaking, a primitive society much like others in its time. Contemporary developmental gurus would have considered it a stagnant society, where markets were severely limited and aspirations were kept in check.

 

The Industrial Revolution changed all that. This point in time is a very crucial turn in the history of ideas, when man abandoned his ancient tendencies[1], and embarked upon the challenge of strife. It is here that the shift to accumulative goals was first exhibited. Around mid 1700s, the arrival of the steam engine, coupled with the development of the spinning jenny, demonstrated to the people for first time that machines were able to boost productivity substantially. The significance of this moment is that finally an appropriate agent of capital was introduced into the mix of production.

The machines "robbed" them of this lifestyle and the race for efficiency "forced" them to work in increasingly mechanized urban centers[2]. With man's realization of the power to subdue and manipulate nature came the information age. Economics, as we know it today, was born. The English society had a new vision, and it was progressive.

English farmers, with the dutch close at their heels, started this revolution. The initial productive push showed that more can be attained from less if only the right tools are used, thus making way for a primitive form of research and development, mainly experimental inventions. As machines and fertilizers were discovered and improved, Industry emerged from the womb of agriculture technology and proceeded to completely overshadow it.

 

One wonders why this happened in the sporadic states of England alone, as compared to their counterparts in the rest of Europe. Was the birth of this knowledge based efficiency accidental? Discounting grand genetic theories, sociological evidence suggests otherwise. This occurrence could be attributed to the fact that English society was more liberal than their European counterparts. The English farmer had the liberty to move about and experiment with entrepreneurial spirit. The French farmer, for example, had restrictions and obligations to the ruler. The claimants to the German state were at the end of the 30 years war. The English also had a financial and banking system in place that aided the industrial movement in its infancy.

 

N. F. R. Crafts and C. Knick Harley[3] are of the opinion that as productivity kicked in, lower prices meant that the English society could now switch their income from subsistence needs to relatively higher end manufactured goods. What followed is a complex mix of institutional and societal factors that marked doom for agricultural and opened a window of opportunities for the budding industry. The English farmers didn't always have the freedom that was mentioned earlier. Before the 17^th century, Briton farmers relied on villages to decide what was to be produced because of the structure of farms that required everybody to follow the same rules. Productivity was hindered by this arrangement and legal changes were made to support enclosure of land. This in turn led to an initial boost in productivity, thus allowing a greater population to live on the same land. But soon enough, since the peasant farmers were deprived of their lands, there came a severe crisis in the agricultural sector. This struck a decisive blow to the already weakening agrarian society, and these displaced peasant farmers looked to the booming industry in urban areas for work. Town after town, the workshops grew to factories, and the factories grew to industries. This shift of workforce, coupled with the decline of agriculture and the boost of population and productivity, practically forced England into the age of industrialization.

 

T.S. Ashton and David S. Landes challenge this explanation[4]. Even with the advantage of hindsight, one cannot conclusively rule out the alternate explanation that perhaps agency played a greater role in this scheme of things, that perhaps advancement was not as accidental as it seems. Did the British people have an inherent risk-taking gene? Was this the manifestation of the Protestant social philosophy, as Max Weber put it? Its true that the prevailing thought would make the British a little more eager to make wealth, with their mercantilist mindsets. But all of this is a product of, and shapes, the zeitgeist. The relationship between opportunities and people's reactions is not one-sided. The complexity of the matter does not allow us to draw any such conclusions. The source of Ashton's "inventors, contrivers, industrialists, and entrepreneurs" cannot be held responsible for the revolution independent of the socio-political conditions they were living in. It seems absurd to pin it on all the psychology of the Brits, and think that their European counterparts lagged behind in such intelligence.

 

The rest is, as the popular expression goes, history. The State had a prominent role in supporting the Industrial Revolution. The English Empire put its military and logistical might behind this revolution actuated by the innovative private individuals. From that point onward it was merely a question of propagating the industrial-economic paradigm and creating new opportunities in the form of markets for the budding industries back in industrial hubs like Manchester and Nottingham.

 

The United States: Free-market Façade

Looking at it from a sociological viewpoint, the real transformation in the United States of America can be gauged by the socio-economic evolution of class. Herman Kross pins it on increases "..in the quantity, the variety, and… quality of the goods that make up the level of living." This translates into the people's behaviour a manifestation of the progressive capitalist model. The American dream is constantly evolving into grander and greater proportions. The accumulative philosophy that the Americans imported from the pioneering Europeans changes remarkably in the American continent. Everybody expects to go from rags to riches, and everybody is forever in the pursuit of bigger and better things for himself. This fundamental principle of growth has always been behind every action of an American agent and every policy of an American government.

There were differences in patterns of living throughout the colonial times, but growth blurred them out. By mid 19^th century there was little outward difference noticeably in the attire of a rich tycoon than a poor peasant[5]. The differences began to shift to quantitative proportions. This consumption-based society thrived on the diversity and development of consumer taste. Successive generations of Americans put in lesser hours of work and expected less physical energy to earn a much larger income.

A variety of factors interacted to bring economic prowess to the continent, including but not limited to the physical geographical potential of America, the European industrial heritage, the social and political organization systems, the institutional frameworks, the evolving culture and value system customized by the American people, and of course, a set of features operating within the economy itself. The land itself had advantageous agricultural conditions, and was rich in natural mineral resources. But that wasn't it, America also had the advantage of being a late starter. It simply built upon Old World contributions and developed a cultural background and an institutional framework that brought forth a less conservative, less restrictive, and less limited version of economic growth than that experienced by the nations from which they had taken their roots. The Americans simply picked the best of the European influences, and fused it with liberal, harsher version of free-market philosophy. Without European capital and technological know-how, it would have been hard for this new nation to achieve anything substantial.

Americans had a peculiar set of political and social organization structures and economic institutions. A seemingly self-contradictory form of economic philosophy was promoted. Individualism was encouraged, as was the pursuit for wealth and business profits. Contrary to popular belief, though, the American State never really surrendered regulatory control of its population to the infamous "invisible hand". Successive American government made sure that while non-interference was promoted at the societal level, institutionally the State was to have their back. Whether by political maneuvering or economic restructuring, the government has always had a hand in the running of the American economy.

The American mindset can be considered to be a highly mutated form of the European character. On the individual level though, the state promoted lessons of material prosperity. Nothing in the fabric of American values stood higher than the achievement of economic success. The American dream emphasized such economic success over political, intellectual or military pursuits. This instilled a fiercely competitive spirit in the American population. This spirit, aided by the increasingly powerful state, helped propagate business and find greater markets internationally. In retrospect, one can only speculate how the Americans superseded their European counterparts and emerged as the dominant economic force in the world. Apart from all these factors, the historical World Wars have great significance. Western Europe was caught in a series of devastating wars, and it did not help their economy much, despite maintaining colonies to support these endeavors. The American continent, relatively secluded from the battleground, gained precious time and used it to its full benefit. While the European industrialist lay dazed from the war, the Americans developed their own mix of capitalism and gained ground on the world economy. This is probably why they supported The Bretton Woods agreement. They needed to insure that the system continued, so they pumped in money into the continental governments and continued to establish themselves firmly in the world political economy, whether the Europeans liked it or not.

JAPAN: Catch-up to Leap-Frog

There are glaring misconceptions about the Japanese. They are polite, but also insolent and overbearing. They are incomparably rigid in their behavior, but also they adapt themselves readily to extreme innovations. They are submissive, but they are not easily amenable to control from above. They are loyal and generous, but at times also treacherous and spiteful. Though they devote themselves with passion to western learning, they remain committed to their conservatism[6].

The Japanese nation has certain characteristics. Unlike the Europeans, they are politically pluralist; for over a thousand years authority is divided in complex arrangements. Despite this, the Japanese are exceedingly authoritarian. The system does rely on authority to right the wrongs at every rung of society, but this does not necessarily mean a rule of totalitarianism or dictatorship.

In Japan, there is a great value attached to community. In all activities, the Japanese tend to think of themselves as a group. Even after the surrender to American influence post-WW2, the Japanese never internalized the individualism of the Western world. They might have adopted the capitalist values, but skillfully dodged the individualistic tradition. That being said, these people are nationally egoistic. They have always prided themselves over their status as the inhabitants of Japan, as being part of a group that has special importance as compared to everybody else. This does not in any way hinder their ability to experiment and adopt, as is observable from their great technological advancements. The society in Japan is highly hierarchical.

What appeals most to the contemporary economist about the characteristics of the Japanese nation is their competence towards perfection of technology and their purposive attitude towards history. The Japanese have a strong legacy of getting the most out of technology. Although the Europeans can be considered to be the pioneers of industry, Japan has never really been far behind. The character of Japan is such that they do not necessarily engage in technological races just for the sake of it. Japanese technology is first targeted towards the Japanese user. They are exceedingly capable of copying and improving on technology to make it better, at least for their own purposes. This means that Japan serves as a great market to Japanese technology producers. This in turn means that products are highly evolved within the Japanese market, and their internal economy remains strong. Even today, gadgets available in Japan and not the rest of the world are a common occurrence. The Japanese create, and use, technology far more than other peoples. They don't need to tone down their rate of technological advancement to suit the needs of the world economy, they have enough of a market at home[7].

History is closely tied to destiny in Japanese culture. This allows them to insulate themselves form the negative effects of historical failures and keep a positive belief, even if its not based on reality. At the back of their heads, therefore, they are always insured against shortfalls. If something bad happens, it was bound to happen. This gives them an ability to get up and go again, as was the case by the end of World War 2. The Japanese stood to sustain huge losses, both in human and economical terms. They had no choice but to submit to American interference and work around it. Their culture taught them to take what they have and make the best of it, so they did. They adopted the capitalist model with full fervor, and used to their advantage. They secured political patronage with the established hegemon, gained preferential access to its markets, and went to work building up heavy industry and technological-based products to gain worldwide specialization. In other words, they have beaten their capitalist masters at their own game. Just like the Americans used the cover of World Wars to establish themselves atop the global order, Japan used America's preoccupation with the cold war to gain important economic and technological ground.

Conclusion

The Japanese model, in my opinion, is the most compelling form of development. Empirical evidence supports this claim. The Japanese started off at a more disadvantaged point than did the Europeans or the Americans, and yet have managed to climb atop the global economic ladder. Japan's growth in the last half-century is unsurpassed in the history of economics. In 1950, Japan was only 3% the size of the American economy, by the end of century it was over 68%[8]. By comparison, the United States took over a century to achieve a similar income gain against the previous hegemon, Britain. The Japanese are actually working lesser hours and being more productive than their American counterparts[9]. From all angles, the Japanese are poised for economic success. They have achieved all of this within the system, and have not resorted to drastic political restructuring as did the European colonialists or the American neo-imperialists. The Japanese model is simply an improvement over the previous two models; it results in consistent real economic growth with maximum efficiency.

---

[1] Plato in "Laws" speaks of life's purpose to be the greater good of society, symbolized by a life of contemplation.

[2] Engels, The condition of the working class in England, pp 10-11

[3] Peter Timin, Two views of the British Industrial Revolution, pp 13,42

[4] Ashton, Industrial Revolution and Landes, Prometheus Unbound, pp 41, 105

[5] Krooss, American Economic Development, pg. 52-53

[6] Ruth Benedict, The Chrysanthemum and the Sword

[7] Herman Kahn, The Emerging Japanese Superstate, pp. 19-26

[8] Eamon Fingleton, Blindsight, pp 8-10

[9] Juliet B Schor. The Overworked American

Land Reform and the Qazalbash Waqf case

After the Qazalbash Waqf case, land reform in Pakistan is impossible. Discuss.

 

In this short essay, I wish to argue that 'land reform' in Pakistan remains possible, despite the decision of the Supreme Court in the Qazalbash Waqf case.

 If 'land reform' is taken in its narrower, conventional meaning, it remains possible to strip current landholders of their land by establishing that their  acquisition of the relevant land was ab initio illegal and against the principles of the Shari'ah. I also seek to establish that in the case of Pakistan, given the nature and history of many landholdings, this principle may have significant practical repercussions.

If 'land reform' is construed more broadly to include not just reform of land ownership but also reform of land usage, then, despite the Qazalbash waqf decision, the possibilities remain extensive. In fact, if anything, the very text of the Qazalbash case provides important cues in that direction. By the end of this essay, I hope to broach some of these open pathways to 'land reform' in Pakistan.

So help me God.

I

The Stories Behind the Case

Behind every case, the lawyers say, there is a story. Behind "PLD 1990 SC 99" there are many stories, each simply fascinating. The one story that I wish to narrate, before moving on the lawyerly talk(beginning Section IV), is the story of the Qazalbash Waqf, one of several appellants in the case by that name. It is a story that comprises many tales.

In the late 1960's and early 1970s, one Zulfiqar Ali Bhutto, scion of a landed Sindhi family, rose to power on the slogan of Islamic socialism (which he, probably, honestly believed was not an oxymoron). He promised that he would take land from the rich, using the power of state law, and give it to the poor. In 1972, soon after assuming the title of Chief Civilian Martial Law Administrator (another oxymoron?), he announced that under Martial Law Regulation No. 115, land would be taken from the rich and given to the poor. The state wouldn't buy land to give it to the poor. It would, as though, simply proclaim that land had never belonged to the rich; it had always been the poor's to take. In 1977, a little before announcing the general election, Z.A.Bhutto's government passed through the parliament another series of 'land reforms' through Land Reforms Act (2 of 1977). 

Another of these tales is the tale of the Qazalbashes. The Qazalbash clan, with its roots in that mystical, world-unto-itself place called 'Turkistan', established its presence in the green plains of India, sometime in the last two or three centuries, certainly much, much before the Bhuttos established themselves in Sindh. Originally mercenaries, many members of the clan came to acquire large landholdings, and some even became saints of great repute. Someone from amongst them established a 'waqf'(variously translated as 'pious trust' or 'charitable endowment') that owned hundreds upon hundreds of acres of land, somewhere close to Lahore. The idea behind the waqf, as always, was simple: the good of the people, for the sake of Allah, as ordained by His law.

It so happened that while Bhutto was maneuvering the strings of state law to fulfill his promise of land reform, the net that he cast fell on, among other powerful entities(represented by lawyer-wizards), the Qazalbash Waqf. The Qazalbash Waqf, an institution protected for ages by God's law lost a lot of its land. The mutawalllis, of course, didn't like it at all.

Crying foul, they went to the state's courts. For many years, there was no relief available. 

Later, however, like all powers mundane, Bhutto eclipsed. Islamic socialism gave way to cries for Nizam-e-Mustafa. General Zia ul Haque, having sent Z.A.Bhutto to where all men must in the end go, set out to Islamize the laws of Pakistan. For a start, he did two things: one, he inserted into the constitution an Article 2-A which commanded that no law in Pakistan may be repugnant to the Qur'an and the Sunnah – that is, un-Islamic; two, he set up, Shariat benches in the High Court of each province and, later, consolidated these in the form of one Federal Shariat Court.

The Federal Shariat Court turned out to be a fairly colourful jurisprudential experiment: it brought ulema from all different parts of the country to sit together with common law jurists so that, together, they may proclaim the meaning of God's law for the people of their own time. Later, when the Shariat Appellate Bench was created to sit in appeal upon FSC judgments, that court too had similar experiences.

Early in their lives, Muhammad Karam Shah and Muhammad Taqi Usmani, though both were scions of learned and pious families, had few things in common, except one very important one: a commitment to Islam, the way it has been understood traditionally. While Karam Shah was heir to a Punjabi sufi shrine in the foothills of the Salt Range, Taqi Usmani was an urbane and erudite Kararchiite, an aspiring heir to the juristic, textual legacy of Islam. Karam Shah had, among other accomplishments, a degree from Al-Azhar in Cairo – thus the prestigious title Al-Azhari, which the PLD editors seem to have somehow ignored entirely. Both men had a following. None liked socialism. When the Shariat Court brought them to sit together in judgment, they found themselves making history, often agreeing on how it should go.

II

The Federal Shariat Court Speaks

In 1979, with the establishment of the FSC, the Qazalbash Waqf, hitherto disappointed, saw a ray of hope. If someone could establish that land reforms were un-Islamic, they could retrieve the land that had been lost. They moved the court, arguing, inter alia, that Islamic socialism and its land reforms were, in reality, not Islamic at all. Much to their disappointment, when the court proclaimed its judgment in December 1980, it found nothing un-Islamic in land reforms. Only one judge expressed his opinion in favour of the Waqf; he did not however base his decision on the larger issue of land reform. He decided the case of a technicality: waqf was not a 'person' under the relevant provisions of the law.

The Qazalbash Waqf, which had survived the test of time, did not give up. They filed a review petition and then, like all tenacious and wise appellants, waited for the tide to turn.   In the years to come, the Shariat Appellate Bench kept collecting appeals on similar questions of law, deferring its verdict, for reasons I am completely unaware of. May be, they too were waiting for the tide to turn.

III

The Tide Takes a Turn

By 1990, when the Shariat Appellate Bench finally proclaimed its judgment in the case of the Qazalbash Waqf, the world had changed. A wall had been pulled down somewhere in Berlin and in 1989 things was taking a strange turn, one after the other. Socialism became history. Its soldiers were retreating, if not deserting. Everyone was waking up to the new realities.

                Muhammad Taqi Usmani, writing what appears to be the leading judgment, proclaimed that no one could be deprived of lawfully acquired property (including land) except in extremely limited circumstances – circumstances that did not include those leading to land reforms in the seventies in Pakistan. Taqi Usmani wrote one of the most well-argued judgments that I have yet come across amongst Pakistani superior court judgments. Explaining his answer and their legal-doctrinal bases in meticulous, almost pedantic, detail, he attacked every counter-argument presented by the lower court and the government's lawyers. More than once he exposed the spuriousness of argument thats deliberately sought to manipulate Islamic discourse to make room for socialist ideas.

                Pir Karam Shah wrote a shorter judgment, essentially confirming and praising the finding of his "learned brother Allama Taqi Usmani". He seemed to take great comfort in announcing that the days of socialism were over and that its false promises stood exposed. There was no point in bending Islam out of recognition to fit it in the socialist mould. It seemed somewhat natural that the two ulema on the bench would agree with each other.

                Shafiur Rahman J. and Nasim Hasan Shah J., veteran Supreme Court judges and modernists in the outlook, upheld the FSC's judgment employing various arguments which do not, however, match the analytical rigour of Taqi Usmani's arguments.

                The decisive vote, then, belonged to Afzal Zullah J. Somehow, something about Taqi Usmani, or the strength of his arguments, managed to sway him. It was his vote that ultimately decided the fate of 'land reforms' in Pakistan: they were declared un-Islamic and, thus, illegal.

                It is important to note here that, in the case of the Qazalbash Waqf, the court could have arrived at the same verdict, on a simple technicality, just as the dissenting judge in the FSC did, by declaring that a waqf was not a 'person' under the land reform laws. The bigger issue could have been decided in some other case where doing so would be necessary. However, all except Pir Karam Shah chose to do otherwise. The Qazalbash Waqf had a destiny; and its destiny was to make history, and be remembered.

 

IV

The One Thing They Didn't Say

                While declaring un-Islamic and thus illegal the expropriation of land, or any property, by the state without paying compensation, Maulana Taqi Usmani stated only one exception: "a state in which if one does not resort to unlawful means he will die or will get close to death." He concluded that the situation at hand could not fit the requirements of this exception. It is only too clear that if a situation arose which did fulfil any of these stated exceptions, then, the Qazalbash decision notwithstanding, land reform, if it can remedy the situation, would be legal. It is perhaps stating the obvious that in this case the extent of the land reforms should be proportionate to the need for them and no less, no more. In fact, according to Maulana Taqi Usmani's judgment, in such a situation it would be the state's responsibility to take every possible measure to remedy the situation.

`               That said, considering the unlikeliness of such a situation, I feel that the more promising possibility of land reform lies elsewhere. In his judgment, Mualana Taqi Usmani repeatedly stresses that the broad protection from expropriation which property owners enjoy in Islam applies only if their property was acquired, in the first place, through legitimate means. If, however, the property was acquired through illegitimate means, it is the government's duty to take it back and give it to its original, legitimate owners; and, if that is not possible, then, just give it to the needy. Commentators of the Qazalbash case have been loathe to note the significance of this conditionality for the Pakistani situation perhaps only because, in the immediate case, this was not an issue. The conditionality can, I now argue, be significant given the shady origins of many large landholdings in Pakistan.

V

The Shady Origins of Landlordism in Pakistan

            It is commonly known that in the times of the Mughal Empire, particularly since the administrative overhaul of Emperor Akbar, the King would appoint jagirdars and other nobles to collect revenue from certain tracts of land, a part of which they would keep to themselves, and the rest they would pass on to the King's treasury. These nobles would, in turn, grant the revenue collection rights over their parts land to others nobles. None of these nobles, however, owned the land.  In short, while the king theoretically owned all the land, the peasants and tillers who has historically been on the land continued to possess it, as long as they ensured payment of their revenues.

                When the British conquered the lands that the Mughals has once ruled, they gradually transformed the whole concept of land ownership. Modern capitalistic forms of property ownership, developed in England, were gradually replicated in the colonies. Lands that had long been communally 'owned' and exploited gradually became the property of private individuals. Not unexpectedly, in the ensuing scramble for land, local influentials, particularly those who collaborated with the British, got much more than their share. Ultimately, a few got all. Most got nothing.

                It can be argued, as people on the street often still do, that through manipulation of land rights, the colonizers deprived many families of rights over land that these families had traditionally enjoyed. Instead, quite unjustly, and quite against the principles of the Shari'ah, landholdings were arbitrarily made the exclusive possession of a select few families.                Many of these families still own the land. The history of this land scam dates back to no more than a hundred and fifty years, given that Punjab and Sindh were annexed only as late as the 1840's.  In terms of history, that's only recent.

                In sum, despite the Qazalbash Waqf case, if the state wishes to deprive landowners of their land so that the land may be redistributed, it can do so by first establishing the ab initio illegality of title to the land. This, as contended above, may not be impossible in the case of various large land owners in Pakistan because of the shady origins of their title to the land.

VI

Thinking out of the Box

In this section, I hope to examine a broader, less conventional conception of land inform. I contend that the possibilities of such 'land reform' remain extensive. In fact, the Qazalbash case itself offers important cues that can spark one's imagination and provoke one to think of creative solutions to the problems that first gave rise to the narrower conception of land reform.

Land reform has generally tended to focus on land ownership rights – that is on land itself. Ultimately, however, this focus on land itself seems misplaced considering that land is only as good as what it can be used for and who it can be used for. If land usage is reformed in such a manner that it caters to get of all and not just the good of a few, then, to some extent, the need for redistributing land ownership may be obviated. That seems to be solution indicated in Maulana Taqi Usmani's leading judgment.

He repeatedly emphasizes this point: the economic teachings of Islam may not be looked at in isolation. The broad protection enjoyed by property owners must never be looked at in isolation from the duties they have to God and to their own communities. While on the one hand the state may not expropriate land, land owners are also not totally free to use their land as they please: they may not produce anything that is illegal or harmful to the community on their land; they must pay zakat and usher upon their produce; they must take care of anyone in their community who slides down to dire poverty, such that no one goes hungry or naked; they are responsible for ensuring the well-being of their extended family, from whom they inherit and to whom they must leave their property behind; in times of scarcity, they may not hoard, nor gamble or speculate, nor may they charge interest on the capital that they possess.  Furthermore, one who 'brings life' to a 'dead' land may own it, while one lets a land go to waste for a certain number of years loses title. All of these conditions, among others, constitute significant reforms to land usage. Few, if any, of these rules of land usage are currently being followed in Pakistan.

If the state plays a role in ensuring that these conditions of land usage are closely adhered to, these "reforms" are quite enough to bring about much good.

The strength of Maulana Taqi Usmani's judgment depends, in part, on his ability to muster up precedents from Muslim history along with contextual explanations from the Islamic scholarly tradition. His view, it appears, is that which enjoys the support of centuries of scholarly consensus. On the contrary, the dissenting views of Nasim Hassan Shah and Shafi ur Rahman, in support of the Islamic-legality of land reforms, are remarkably abrupt and ahistoric. Nasim Hassan Shah, for instance, simply ignores the argument that anything which the Qur'an or the Sunnah do not forbid, cannot then be forbidden forever by anyone else. Furthermore, he comes up with his own precedented definition of 'darurah' or necessity – a concept with which constitutional jurists in Pakistan are only too familiar, although in a rather sinister context. By alluding to Muslim history, Taqi Usmani also points out where it is that we need to be looking for, to find creative and well-grounded solutions to the problems that gave rise to the need for 'land reform'.

At one point, Pir Karam Shah comments on the irony of this misplaced focus on land ownership rather its usage. He points out that the institution of Waqf itself was developed to increase public welfare – for centuries, that is precisely what many auqaf were doing. In the case at bar, a waqf had been stripped of its land, in the very name of public welfare. The state, in the name of public welfare, found itself destroying age-old institutions which Muslim society had nurtured for the same purpose. The modern, colonial and postcolonial state, right at a time when it proclaims its mission of public welfare, has long maintained policies that discourage and damage the institution of waqf. The Qazalbash Waqf case not only allows but encourages the state to protect and promote this institution  – the essence of which is the reform of land usage. The establishment of auqaf offers the prospect of converting lands previously utilized for private good into lands utilized for the good of the public. This process is required to be voluntary, not motivated by the love of God and not by coercion of state law. Yet, there is no reason to conclude that auqaf cannot come to play a significant role in the provision of welfare to the public – indeed, history indicates that with the right amount of push from both state and society, they can. That too is a pathway of 'land reform' which remains possible in Pakistan.

The End!