Polycentricity, Islam, and Development: Potentials and Challenges in Pakistan 9781498539760, 9781498539753

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Polycentricity, Islam, and Development

Polycentricity, Islam, and Development Potentials and Challenges in Pakistan

Anas Malik

LEXINGTON BOOKS

Lanham • Boulder • New York • London

Published by Lexington Books An imprint of The Rowman & Littlefield Publishing Group, Inc. 4501 Forbes Boulevard, Suite 200, Lanham, Maryland 20706 www.rowman.com Unit A, Whitacre Mews, 26-34 Stannary Street, London SE11 4AB Copyright © 2018 by Lexington Books All rights reserved. No part of this book may be reproduced in any form or by any electronic or mechanical means, including information storage and retrieval systems, without written permission from the publisher, except by a reviewer who may quote passages in a review. British Library Cataloguing in Publication Information Available Library of Congress Cataloging-in-Publication Data Names: Malik, Anas, author. Title: Polycentricity, Islam, and development : potentials and challenges in Pakistan / Anas Malik. Description: Lanham, Maryland : Lexington Books, 2018. | Includes bibliographical references and index. Identifiers: LCCN 2017056984 (print) | LCCN 2017044498 (ebook) | ISBN 9781498539760 (electronic) | ISBN 9781498539753 | ISBN 9781498539753 (cloth : alk. paper) Subjects: LCSH: Pakistan—Politics and government—20th century. | Pakistan—Politics and government—21st century. | Islam and politics—Pakistan. Classification: LCC JQ629.A58 (print) | LCC JQ629.A58 M347 2018 (ebook) | DDC 320.95491—dc23 LC record available at https://lccn.loc.gov/2017056984 ∞ ™ The paper used in this publication meets the minimum requirements of American National Standard for Information Sciences—Permanence of Paper for Printed Library Materials, ANSI/NISO Z39.48-1992. Printed in the United States of America

Contents

Preface and Acknowledgments

vii

1 Introduction1 Overview and Method 15 2 Polycentric Governance in a Weak State Polycentric Design Polycentric Design in a Weak State, Heterogeneous Society Context Type III Collective Choice Units Informal Institutions Metanorms for Polycentric Design 3 Polycentricity in Islamic Tradition Jurisprudential Tradition Political Islam, Modernity, and Polycentricity Concluding Note on Challenges and Bounds

51 53 58 65 79 88 91 102 112 128

4 Polycentric Metanorms and Islam in Pakistan 131 The Pakistani Context 134 National Self-Conception 139 Constitutional Crisis Over Polity Membership and Authorization 165 Islam and the 1956 Constitution 190 Conclusion 193 5 Jurisdictions and Collective Choice Units in Pakistan Type I Jurisdictions in Pakistan Type II Jurisdictions in Pakistan v

199 202 235

vi Contents

Type III Arrangements in Pakistan 243 Conclusion 259 6 Viability263 Symbolic Contestation and Islamic Identity 268 Supporting Self-Governing Collective Choice Units 286 Concluding Note 295 Bibliography 299 Index 309 About the Author

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Preface and Acknowledgments

Bismillah-ir-Rahman-ir-Rahim. In the Name of God, the Compassionate, the Merciful. I start in the name of God as is the common practice of Muslims. Additionally, this beginning situates my identity as a Muslim of Pakistani origin, and also frames the book’s subject, which emphasizes the religious and cultural context for governance and development in Pakistan and Islamic contexts. Also in keeping with the long-standing Muslim tradition, I acknowledge the fallibility of this endeavor, and end with Allahu a’lam, meaning God knows best. In thinking about development, it is widely assumed that a central political authority is the primary, and often exclusive, rule-giver. An alternative view is that many spheres of collective decision-making coexist and that a well-functioning “polycentric” society requires a shared understanding about how these interrelate. This book is an exploration of the latter view, its foundations in social science, particularly in relation to post-colonial contexts, its potential rationales in the Islamic tradition, and its appearance in the Pakistani context. My training is as a political economist rather than in theology or religious law, and I hope specialists in those and related areas will engage critically with this effort. My goal is to generate and add to conversations about the potentials for a polycentric order in developing contexts, particularly where Islam is politically salient, in Pakistan and beyond. My primary intellectual debt for this project lies with Vincent and E ­ linor (Lin) Ostrom. As a graduate student in the mid-1990s, I participated in the Ostroms’ yearlong seminar. Vincent responded to my weekly memos with lengthy, thoughtful responses. At the same time, I noted some severe contestation in our local Muslim community in Bloomington over rules. Looking back, I can see that the genesis of this project lies in those memo exchanges and my local experience. Much later, in 2012, Lin provided feedback on an vii

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Preface and Acknowledgments

early draft of this book. She was generous with her time and energy. Mike McGinnis invited me to the Workshop as a visiting scholar, and his support and feedback have been critical to this project from its early stages. Mike also suggested the book draft party that provided lots of food for thought and revision. Dan Cole’s seminar and our many conversations have also been very helpful for this and related efforts. I am deeply grateful to participants in the book draft party, who offered numerous comments and suggestions: Shafqat Saeed, Nazif Shahrani, Yusuf Nur, Sumit Ganguly, Kevin Jaques, Ahmed Khanani, Forrest Fleischman, Mohammad Zubeir, Gustavo Garcia-Lopez, Ryan Brasher, Joseph Woldense, Shelley, Faraz, and Jesper Larsson. Special thanks go to various participants at colloquiums, particularly Eduardo Brondizio, and to staff at the Workshop, particularly Ray Eliason and David Price, for their logistical help. I also acknowledge helpful interactions with AbdelKader Sinno and Asma Afsaruddin. In addition, Wael Hallaq provided thoughtful feedback regarding what has become Chapter 3. Mirjam Kuenkler provided valuable critical feedback on an early draft of a journal article related to this study. I also thank Ahmet Kuru, for his thoughtful responses, and Andreas Thiel, for related collaborations. I also acknowledge useful conversations with Ingrid Mattson, Waleed El-Ansary, James Buchanan, Kathleen Smythe, Jason Nicholson, and students over several courses, as well as all others I have neglected to mention by name. Of course, I bear sole responsibility for all errors. Finally, my gratitude and love to my family.

Chapter 1

Introduction

In developing countries, and particularly in Muslim-majority contexts, much attention has been paid to diversity in ideas, identities, and interests. Less attention has been paid to diversity in institutions. Institutions are the rules that shape behavior in recurring situations. Institutions can serve to overcome collective action dilemmas and improve social outcomes in specific contexts. Many variables relating to social-ecological contexts and the characteristics of people and communities contribute to institutional diversity. In many local settings, people have devised remarkably durable and effective institutions, often outside the purview of official, formal, state-legitimated rules. In studying development, a key question is how well a polity can draw on its cultural endowment, national self-conception, and learning processes to productively accommodate diverse institutions. In many postcolonial developing countries, governance is presumed to be primarily monocentric, where “the” government—typically a central state jurisdictional authority—is the main rule-giver. Yet monocentric government has difficulty with diverse social-ecological contexts, tending toward “one size fits all” policy solutions that have unintended negative consequences, as well as the risk of large disasters commensurate with the large-ness of policy ambitions. Further, the limited political capacity of central state authorities often means that state managers cannot fully implement grand policy plans, while nevertheless having the capacity to disrupt informal or unacknowledged institutional arrangements that structure local interactions. One alternative is polycentricity, which means that “government” is not a monolithic, top-down phenomenon. Instead, there are varied associations that retain, select, and devise rules that constitute collective choice arrangements and shape social interactions at multiple levels. Cultural endowments and national self-conceptions can potentially support polycentric order. 1

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Chapter 1

Consciousness of polycentric potentials, particularly among elites and policy analysts at all levels, can help improve adaptive capacities and resilience and reduce dysfunction. This book argues that there is substantial potential for a polycentric metanorm—a mindset and intersubjective orientation that supports polycentric order—in developing polities in which there is an Islamic national self-conception. The argument is supported by exploration of the collective choice units in developing country contexts generally, through rationales for polycentric governance in Islamic tradition, exploratory interpretative case study of Pakistan that includes an examination of national self-conception in its nascent period, and a survey of selected collective choice units. The final chapter looks at other conditions that, jointly with the polycentric metanorm, may contribute to or detract from a well-functioning polycentric order, and related areas for further research. Monocentric governance and monolithic political Islam are widely assumed by Muslim political elites as well as scholars of Islam and politics. My recent scholarship has challenged these assumptions and introduced minarchist political Islam—a variant of polycentric polity design that has rationales in references from Islamic tradition (Malik, 2011a; Malik, 2008). However, three key elements have been missing. First, polycentric governance as it applies in developing countries with low-capacity central state jurisdictions (the situation in many Muslim contexts) was insufficiently addressed. Second, a real-world case of a polity founded on an Islamic identity where polycentricity could be explored in meta-constitutional understandings and constitutional-level arrangements was needed. Third, Vincent Ostrom’s recurring concern (V. Ostrom, 1997; Ostrom, 1995) was that the debasement of language and symbols would subvert the covenantal basis for self-governing orders, yet this has not been explored sufficiently in Islamic contexts, where it has arguably taken on urgent and even dramatic meaning. This book seeks to fill the first two gaps. It develops conceptual categories appropriate to polycentric arrangements in weak states, expands the discussion of potentials for polycentric understandings, and explores the roots, learning efforts, and institutional artifacts that underlie what can be interpreted as potentials for polycentric constitutional order in Pakistan. The third area touches on the broader problem of how cultures and meanings are understood, contested, and reproduced through language and symbol. While culture in this book is understood as a community attribute of shared values and mental models, the interface of culture and politics in relation to polycentric governance requires additional inquiry for which this book and another recent publication (Malik, 2017) lay some groundwork. Many developing countries, like Pakistan, are weak states. Weak states are those whose central jurisdictions have low ability to allocate and reallocate social resources. Other collective choice units—official and unofficial,

Introduction

3

mandated and self-organized—fill in the governance shortfalls of the central jurisdiction. Weak states face difficult choices with regard to powerful domestic governance units: suppressing them may be needed for state managers’ vision for the polity, but is likely to provoke violent resistance, and accommodating them may dilute or contradict the envisioned polity. The collective choice units that are mandated, permitted, or prohibited, how, and under what conditions, partly define a polity’s constitutional architecture. To solve institutional collective action dilemmas, weak states must find appropriate constitutional norms, or institutional rules for how the central jurisdiction recognizes and relates to other collective choice units. In the absence of appropriate constitutional norms, destructive and destabilizing collective action failures can arise. How constitutional norms emerge and evolve is not adequately understood. Based on the Bloomington school approach to institutional analysis and an exploratory case study of Pakistan, this project argues that constitutional norms develop through culturally and contextually grounded contestation over appropriateness as well as strategic choices to cooperate or defect in the pursuit of political survival. Constitutional norms range from monocentric, in which the central state apparatus monopolizes collective choice in society and prohibits or subsumes other collective choice units, to polycentric variants, in which the central state jurisdiction coexists with other collective choice units under shared understandings about jurisdictional spheres. In all cases, defections from putative constitutional norms can lead to instability and possible state failure. Yet defections can also be occasions for learning and deliberation about appropriateness, shaping the evolution of constitutional norms. Constitutional norms that promote a stable state are commensurable with the polity’s culture and reduce the temptation to defect. These include strategic choices of incumbents and challengers in different action arenas, the diversity of collective choice units, and contestation over the appropriateness of polycentric constitutional norms in an Islamic context. Pakistan, a developing country with a multiethnic, predominantly M ­ uslim population, faces rising ethnonationalist and sectarian challenges, and struggles to provide good governance outcomes. One response is for one subset to capture the central state jurisdiction and coerce others; this seems likely to result in substantial conflict, and indeed arguably has as narrow winning coalitions have continued to dominate the political survival calculations of national leaders (Malik, 2011). Another possibility is to accommodate diverse institutional collective choice forms through a polycentric order. The ability to accommodate diversity and generate good governance remains a profound political problem, particularly given the presence of groups aspiring to hegemony or secession, sometimes with recourse to violent means. Thinking about this challenge—in terms of the normative and ideational

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Chapter 1

resources as well as the strategic interests that together shape institutional mechanics—is challenging and necessarily incomplete as information about preferences and strategies is dispersed among agents participating in various action arenas. But exploring potentials may help agents rethink possibilities as they continue their efforts to devise institutional solutions of mutual benefit with others in the polity. Recent shifts appear to affirm a partial elite recognition of the value of polycentric understandings. Yet contestations over the constitutional norm’s form, as well as monocentric impulses, have posed obstacles. Pakistan is a “hard case” for strong constitutional understandings, its size (the largest Muslim-majority country at founding) and diversity (on ethnic, sectarian, linguistic, ecological, and other lines) raising barriers to information and trust, increasing contestation over the appropriateness of constitutional norms and raising risks of defection. If an appropriate stabilizing constitutional norm can evolve in Pakistan, it makes the prospect of such constitutional norms evolving elsewhere—in smaller, less heterogeneous Muslim-majority weak states—more likely. This project relies on an analytic narrative method, drawing on the documents of commissions, secondary sources, as well as and previously published work based on the author’s fieldwork in Pakistan. An Islamic polycentric constitutional norm has made recurrent appearances as a way to reconcile Pakistan’s diversity and identity into a developmental, productive order. The “minarchist” variant of polycentric understandings emphasizes restrictions on the scope of central state authority, contradicting the noted tendency of the central state jurisdiction to exert its coercive influence over the domains of various other decision units. One can imagine other variants, such as an ordoliberal one that emphasizes a more active central jurisdiction role in securing individual well-being. The record in Pakistan suggests mixed prospects for the future of polycentric understandings (whether minarchist, ordoliberal, or some other variant) with potentials for valuable development outcomes in areas such as public health, ecological sustainability, and conflict de-escalation, but also pitfalls and a cautionary tale in the danger of elite capture and the subversion of rhetorically affirmed norms. I argue that major deliberations and inquiries into constitutional-level questions in Pakistan, particularly those after polity-shaking crises such as the Ahrar agitation of the 1950s, and the civil war that culminated in the secession of East Pakistan, have led to findings and conclusions compatible with polycentric governance, albeit implicitly or with a different vocabulary. In Political Survival in Pakistan (Malik, 2011), I treated ideas as exogenous or as signaling devices for politicians and affinity groups. By shifting the emphasis to shared understandings that might produce better outcomes, I do not mean to minimize the potential for strategic uses of symbols and

Introduction

5

associated challenges. The instrumental use of symbols in rhetoric remains a major challenge, particularly when it has so persistently supported narrow winning coalitions and inferior outcomes from a developmental perspective (particularly in the areas of tax capacity and land reform (Malik, 2011)). Yet deliberative and reflective agents can devise rules and build upon understandings for mutual benefit. This human capacity forms a major premise for the present book, which looks at metanorms for producing a viable polycentric order, while considering the strategic options for decision-makers to cooperate or defect from those metanorms. Inspired in part by conversations with Vincent Ostrom in the 1990s, this book explores covenantal and covenantlike understandings in the Islamic tradition into a political Islamic context where religious reference is frequent in political discourse. This goes beyond theorizing a “Muslim compound republic” into considering the meaning and vulnerabilities of an order that evokes Islamic symbol at the central state jurisdiction’s constitutional level and also in constituting other collective choice units. Polycentric governance and political Islam strike many Muslim and nonMuslim observers as being opposites. “Statist” ideologies of political Islam, which describe an activist state that endorses a comprehensive doctrine and enforces public morality, is a popular research focus. Yet there exists an established political theology in Islamic tradition and history that accepts plural religious interpretations and advocates tight constraints on government intervention in community life. Thus, one under-explored political theology in Islamic tradition resembles the “minarchist” variant of polycentricity. Moreover, I argue that an approach consonant with minarchist polycentricity, at least in the sense of substantial autonomy for the units, was suggested in the Lahore Resolution. In 1940, this historically significant convention statement supported the creation of Pakistan from British India, although it arguably had more nuanced reference to multiple possible understandings of nationhood, including the possibility of a less than complete separation from India (Jalal, 2005). A polycentric and Islamic orientation was arguably implicit in the creation of the most populous Muslim country in the world. Pakistan was founded explicitly to protect Muslim aspirations. Its religious identity and size make it a unique experiment; many Islamist movements today to aspire to an “Islamic state,” but a sovereign home for Muslims was an outcome Pakistan achieved in 1947. Pakistan was the largest Muslim country when it was created, and was created based on the slogan “Islam in danger.” It was supposed to be a state for Muslims, and one that many presumed would be “Islamic” as compared to neighboring India. The Objectives Resolution to the Constitution explicitly defines Pakistan as being Islamic. Pakistan includes great diversity, and has struggled with conflict between Islamic factions as well as ethnic and

6

Chapter 1

religious groups, and with cohesion in its polity overall. Pakistan’s history and present situation represent an unfolding experiment in modern political Islam. Its experiences have relevance to other developing, diverse Muslim countries, including Indonesia, Nigeria, Malaysia, and Lebanon, among others. There are paradoxes in Pakistan: the attempts to assert a unitary state, despite officially proclaimed federalism, and the reality of a polycentric, multivalent Islam despite various nods to a monolithic vision; a democratic form with extraordinary power for unelected institutions. There are significant gaps between the formal setup and the informal reality, or the lived experience. Recognizing and reconciling this gap is critical if the quality of public politics in Pakistan is to improve, which in turn is a significant step toward improved governance outcomes. Internal and external challenges to Pakistan’s integrity (such as East Pakistan’s demands for autonomy and insurgent activity by violent substate groups like the Taliban) generate insights about the viability of polycentricity in an Islamic context. Some would argue that the polycentric project in Pakistan has failed, given the recurrent dominant executive and its incursions into various jurisdictions, as well as the willingness to adopt a far-reaching official Islam. Notorious sectarian groups have adopted violent tactics; these groups include the Tehrik-e-Taliban Pakistan, Sipah-e-Sahaba Pakistan, and Sipahe-Muhammad Pakistan, each of which has far-reaching security implications. Pakistan analyst Selig Harrison has recently argued that if it is to survive as a state, Pakistan requires a radical domestic restructuring—a rewriting of the political rules of the game. One possible line of reasoning is that the less radical such a restructuring is (i.e., the more connected, with roots in the Pakistani political context), the greater its chance of succeeding. This book suggests a path for thinking about such restructuring in historical context, drawing on a substantial current in Pakistan’s political history. The doyen of Pakistani historians, Ayesha Jalal, raised what may be termed a constitutional-level challenge in the preface to the paperback edition of The Sole Spokesman: “to rethink and reconstitute the structural and ideational bases of states through the pooling of sovereignties of its fragmentary parts.” This book can be considered an attempt to advance the conversation in this direction, by examining potentials for a polycentric metanorm that supports a more productive interrelation of its fragments. Understanding Pakistan’s political evolution, and the centripetal forces that have threatened to break it apart, offers insights into polycentric Islam as a normative force with the potential to shape constitutional understandings. An explicit and implicit polycentric impulse has recurred in Pakistan’s constitutional history, traceable to the Pakistan Resolution, dramatically highlighted by party and group platforms such as those espoused at different times by the

Introduction

7

Muslim League, the Awami League, and the Awami National Party. Appeals for substantial unit autonomy remain notable in the political rhetoric of various individuals and contenders for office. Rather than simply a bargaining posture for acquiring a bigger slice from the central government’s pie, these claims reflect a widespread belief that a polycentric polity is a legitimate constitutional direction for Pakistan. In Political Survival in Pakistan: Beyond Ideology (Malik, 2011), I argued that in Pakistan, the rule of law was weak, state capacity was low, and amid a governance vacuum and underprovided majority goods, “quasi-state” actors (extralegal entities extracting resources, serving clients, and fighting rivals) had significant de facto power. Key majority goods include building capacity for equitable revenue collection, land reform, and effective policing. At the central government level, an incumbent’s political survival was best served by retaining a narrow, loyal winning coalition of supporters; this increased incentives to divert policy from public or majority goods to private purposes. Challengers could try to split the incumbent’s support coalition and build an alternative coalition, and/or create their own state-like organization. These activities could take place simultaneously with formal “public politics” steps of running for elective office and engaging in party politics. One possible path to stability and the rule of law was to recognize and incorporate powerful actors into the polity; this has potential governance benefits through a form of fiscal federalism. In a weak state context, informal institutions and unauthorized collective choice units often compete with or substitute for authorized jurisdictions. A key challenge for well-functioning polycentric constitutional design is how to “compatibilize” formal constitutional process and provisions with informal institutions. Selecting and recognizing particular informal institutions and associational forms may produce perverse incentives and unintended consequences. This poses exceptional challenges for constitutional design in Pakistan, given its vast array of heterogeneous, fragmented, and differently capacitated collective choice units. Underlying potential for a workable response rests on a mindset and orientation to embracing rule-diversity and valuing the autonomy and integrity of collective choice units. Vincent Ostrom, drawing on a prominent theme in the Federalist Papers, asked whether government by reflection and design was possible, or whether accident and force were the main drivers. A key underlying analytic problem is that of the role of ideas, ideals, and intention in polities. Metanorms overlap with all three. Ideas can serve as instruments of deception, cloaking other interests such as power or wealth, and as mystical founding metanorms. That interplay of ideals and power realities was considered by E.H. Carr (2001 (1939)) in The Twenty Years Crisis, his examination of the post-World War I attempt to construct an international order. In brief, ideals do not disappear

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Chapter 1

simply because power is exercised. Rather, power is a means in pursuit of an ideal, and ideals rationalize and justify power. But power in itself repeatedly thwarts and undermines ideals. Neither can be exclusively referenced, and the two are difficult to disentangle. In trying to construct a viable polycentric arrangement in a low-capacity setting, there is a comparable challenge. This book presumes that intent matters throughout the activity of civic artisans as they collectively devise social rules, and particularly at the constitutional level of analysis. Wilfred Cantwell Smith’s study, referred to at length in Chapter 4, posits a pivotal role for intent in Pakistan’s self-conception as an Islamic polity. Of course, there are numerous other factors intervening in the path between intentions and outcomes. There are theoretical and practical difficulties in determining what preferences count as “intentions,” with unintended consequences, as well as with collective action issues. Yet the “design” element must consider intention, and since design was a key preoccupation of constitutional deliberation, it remains one in this study. Studies of Political Islam Presume Monocentric Design Polycentric design in weak states with an Islamic identity has not been substantially theorized and investigated. A monolithic Islam is often presumed, which typically comes with a monocentric idea of governance. Discussions of “Islamic state” tend to focus on the Islamic part and gloss over what precisely is meant by “state.” The polycentric approach emphasizes governance in a broader sense, encompassing rule-devising and revising activity by collective choice units in different arenas. Likewise, “law” is more than simply rules in formal documents, and the New Institutionalist approach points to a fuller grammar of institutions. How to be both “Islamic” and a state with a diverse, fragmented society is an ongoing constitutional challenge. Inside and outside Muslim-majority contexts, Islam is sometimes presented as monolithic in public discussions and scholarly examinations. Those studies (increasing in numbers) that acknowledge the diversity of Islam and politics tend to assume that public law and governance come from a central state apparatus. Much debate around “Islam and the modern state” or “Islam and democracy” has presumed that a central state apparatus provides the principle locus for governance. Writers typically do note some exceptions, but the base presumption according to which most scholarship (as well as polemic) proceeds remains the predominant central state. Some warn that the central state body as the lawgiver and the arbiter of orthodoxy is at variance with precolonial and premodern Islamic tradition (e.g., Quraishi, 2012). Many studies of political Islam focus on its statist aspects, presuming that Islam lends itself to a comprehensive doctrine that must be applied by the state through the basic law (i.e., constitutions) and public law (specific

Introduction

9

legislation). It is not surprising that scholarship on political Islam presumes monocentric governance. The most famous modern approaches to political Islam presume that the Islam in public law must be uniformly applied by the state within a particular country. Famous or notorious thinkers (depending on one’s perspective) include Abul A’la Maududi and Sayyed Qutb, as well as lesser-known figures such as Taqiuddin Nabahani of the Islamic Liberation Party, the Hizbul Tahrir al-Islami. Each advocated an Islamic state that would arise from the action of a committed vanguard that would transform society and eventually the state to a purer Islamic condition. These approaches presume some local diversity in how things are done, but within rigid bounds and on limited matters. I argue that an alternative approach to political Islam exists, one that acknowledges and values polycentricity. This approach potentially addresses some developmental issues in contexts we find in the Muslim world at present. Qutb and Maududi, among the best-known Islamist idealogues of the twentieth century, both advocated an “Islamic state,” although the basic form was not outlined in great institutional detail. To Maududi, a “theodemocracy” was needed, but his approach was to develop a vanguardist political party that engaged in social movement activism. Qutb’s work drew heavily on anti-colonial themes. The Hizbul Tahrir al-Islami forms perhaps the most monocentric statist response to the Muslim constitutional design problem: a hierarchy headed by a central authority labeled “Caliphate.” Islamist ideologies typically totalize a particular approach to understanding Islamic law, claiming preeminent authoritative status while not interrogating their own assumptions. Some “secularist” approaches also tend toward monocentric presumptions; Abdullahi Al-Naim’s Islam and the Secular State (Al-Naim, 2008), while an extraordinarily thoughtful effort, nevertheless retains a central state-oriented starting point, and thus contains the seeds for political exclusion when prescribed for a polycentric plural society that comprises numerous jurisdictions and institutional forms (see the comparison of Al-Naim’s work with polycentric Islam in Chapter 3). That fact that some prominent Islamist political movements have adopted revolutionary authoritarian stances has justifiably attracted scholarly attention. Yet the full range of Islamic political theologies is considerably broader, and various typologies have been suggested. Husain (2002), for example, suggests four categories of orientations toward political Islam: a modernist, a secularist, a fundamentalist, and a traditionalist. Yet his categorization rests on an implicit monocentric governance model; each approach has a different take on the mix of Islam and constitutional choice, but they all tend to presume a unitary state monolith and a state-society distinction that reifies “the state.”

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Chapter 1

Polycentricity in Islamic contexts, an alternative tradition that explicitly limits the central state jurisdiction’s role while acknowledging a diverse landscape of associational forms providing governance, has been neglected. This alternative is one among several possible ways to reconcile political Islam with a constitutionally bounded government, and represents one perspective from which to address the challenges political Islam poses in a pluralistic global society. Polycentric approaches start from a different position: that governance occurs through many institutions and jurisdictions, at different levels, with varying formality. In order to effectively assess governance outcomes, and consider consequences of policy shifts, these multiple, sometimes overlapping sources of rule must be systematically incorporated from the outset. The challenge of constitutional-level analysis, however, is greater than critically assessing the gap between governance outcomes and stated policy positions. Constitutional design has presumed an institutional context that does not match the reality in many heterogeneous, populous Muslim contexts. Moreover, Islamist movements that form popular opposition groups in several authoritarian or weakly democratic states (such as Egypt, Syria, Jordan) usually propose an “Islamic state” that emerges from a social transformation. Pakistan, a “Laboratory of Practical Islam” Pakistan was famously called a “laboratory of practical Islam” by Prime Minister Liaquat Ali Khan. In that context, every political choice carries theological significance as a fallible and contingent estimate of what is right and good to do. From the perspective of a deliberative religious community, it seems superior to have a deliberated position, with assumptions and arguments made explicit and transparent and therefore open to interrogation, rather than obscured and opaque presumptions that are more difficult to interrogate. Smith’s position (1951: 103) that administrators in Pakistan are not free to not interpret is particularly valuable in this regard. Inaction or non-choice has choice-like consequences; all policies, even those favoring the “do-nothing” option, have implications. Pakistan provides a case of a polity that was created on the basis of Islamic religious identity, and also recognized at least one dimension of polycentricity in its founding document, the Lahore Resolution. The Objectives Resolution, passed in 1949 by the Constituent Assembly and subsequently included in constitutions, is worded in a way that affirms federalism (Pakistan’s territories “form a Federation wherein the units will be autonomous with such boundaries and limitations on their powers and authority as may be prescribed”) and allows the possibility of diverse collective choice arrangements within an “Islamic” framework:

Introduction

11

Whereas sovereignty over the entire universe belongs to Allah Almighty alone and the authority which He has delegated to the State of Pakistan, through its people for being exercised within the limits prescribed by Him is a sacred trust; This Constituent Assembly representing the people of Pakistan resolves to frame a Constitution for the sovereign independent State of Pakistan; Wherein the State shall exercise its powers and authority through the chosen representatives of the people; Wherein the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be fully observed; Wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and the Sunnah; Wherein adequate provision shall be made for the minorities to freely profess and practice their religions and develop their cultures; Wherein the territories now included in or in accession with Pakistan and such other territories as may hereafter be included in or accede to Pakistan shall form a Federation wherein the units will be autonomous with such boundaries and limitations on their powers and authority as may be prescribed; Wherein shall be guaranteed fundamental rights including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality; Wherein adequate provisions shall be made to safeguard the legitimate interests of minorities and backward and depressed classes; Wherein the independence of the Judiciary shall be fully secured; Wherein the integrity of the territories of the Federation, its independence and all its rights including its sovereign rights on land, sea and air shall be safeguarded; So that the people of Pakistan may prosper and attain their rightful and honored place amongst the nations of the World and make their full contribution towards international peace and progress and happiness of humanity.1 (Pakistani.org, 2012)

The key wording here regarding self-governance and polycentric order is that Muslims are enabled to “order their lives in individual and collective spheres in accordance with the requirements of Islam,” suggesting possible diversity in collective choice arrangements. Yet it also leaves open the possibility of accusations that some individuals or collective arrangements are not in accordance with Islam. Examining Pakistan’s political evolution from that period, as well as its struggles with polycentric realities, provides a rich resource from which to assess the challenges and promise of incorporating polycentricity explicitly at the constitutional level regarding the central state jurisdiction as well as other collective choice units. Pakistan’s early promise seemed to do that when it noted that there were sovereign and autonomous constituent units. The instruments of accession signed by different acceding units appeared to guarantee minimal interference by the central state. The Khan of Kalat argued that his agreement could be

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Chapter 1

withdrawn and sought to exercise that; this precipitated a crackdown by the central state. The Pir of Manki Sharif tried to one-up the state on an “Islamic” basis, arguing that sharia rule was to be imposed in his domain. In that case also, the central state reacted by asserting its hegemony. The reason was presumably to prevent balkanization. Many early participants of the Pakistan movement in British India, and particularly those who participated in the founding document known as the Lahore Resolution, believed that the nascent “Pakistan” promised a state with a weak center compared to the more unitary “India” that was being forged. Those who acceded to Pakistan and became its constituent regions did so under a presumption that they would remain largely autonomous units. Yet there were swift disappointments and challenges to Pakistan’s integrity as a state, resulting in conflicts, and eventually, the country’s disintegration. The country continues to face low-grade insurgencies. Virtually all Pakistani leaders have used Islamic symbols to pursue domestic legitimacy. But this usage has become a double-edged sword; disaffected groups can challenge the Pakistani regime for not being sufficiently Islamic. A revolutionary Islamist insurgent movement, the Taliban, has achieved substantial sway in some rural areas. Moreover, prominent Taliban ideologues have dismissed alternative interpretations of the religious tradition. Such actors pose a serious challenge to a polity built on accepting that Islamic tradition is open to plural interpretations and reinterpretations. These unfolding clashes have undermined the political space for the polycentric approach. How such challenges to polity integrity have originated and persisted carries implications for Pakistan studies, other experiments in polycentricity in Islamic contexts, and studies of Islam and the state. A key problem in Pakistan has been the effort to check executive power through the legislature and the judiciary, exemplified by the recent showdown between the deposed Supreme Court chief justice Iftikhar Chaudhry—and the lawyers’ movement that supported him—and Pervez Musharraf, the Army chief who had taken power in a military coup. Another conflict has revolved around the effort by provinces and other subunits to achieve more autonomy and limit the central government’s jurisdiction. The prominent Pakistani economist and former government minister ­Shahid Javed Burki and other observers have commented that Pakistan must devolve authority in order to retain its national unity and for its development. But most proposals are not grounded in a systematic framework that considers constitutional choice while appreciating the weak state context and relationship between choice at the constitutional, collective, and operational levels across collective choice units. In general, “decentralization” as the term is used in policy circles does not usually translate to polycentricity, as discussed in the final chapter.

Introduction

13

Imagining a viable polycentric order in a heterogeneous Muslim society facing national security pressures remains a vital task. A society under a war footing, mobilizing for war, and under a severe security emergency, will likely see substantial pressure to curtail polycentric arrangements, given the overriding needs of collective defense. Pakistan’s experience is a cautionary tale: it has both monocentric and polycentric veins within it, and the difficulty is in finding a balance that satisfies both impulses sufficiently yet remains flexible and robust enough for future circumstances, such as the price shocks and disruptions that environmental trends may bring. Polycentric order does not necessarily imply always selecting smaller collective choice units over the largest ones, but rather matching jurisdictions appropriately to functions. There are some areas that demand larger scale collective choice arrangements. Common defense might be one, as well as basic tools in economic transactions such as currency, as well as infrastructural necessities that are well suited to a particular location, such as large hydroelectric power stations (although there are increasing technologies for decentralized power generation). To see actual fruits, the need to open space for other problem-solving units must be absorbed into the constitutional design process; moreover, that polycentricity must be allowed to persist and bloom. The continuing constitutional choices involved at many levels, including constituting association between new interdependencies that arise with new contingencies, informed by learning processes, are dependent on the agents acting as institutional artisans. This general polycentric orientation holds promise for improved governance outcomes, although it is not without risks. In Political Survival in Pakistan (Malik, 2011), I described a three-way mutually reinforcing relationship between weak state apparatus (and associated poor extraction choices), quasi-states, and poor governance. This appeared early, and grew in developmental dysfunction, through the persistence of narrow winning coalitions that managed to capture or divert policy from the central state jurisdiction a way from providing majority goods to serving narrow elite interests. There are several possible routes, not mutually exclusive, to seeking improved governance. First, a broader winning coalition might emerge if a sufficiently broad community or class is able to sustain collective action for shared political purposes—challenging amid ethnic and social fragmentation, where trust relations are embedded in opaque networks. Second, there is the monocentric state-building route, making the weak central state authority stronger, through heavy-handed, repressive measures that enhance extraction and squelch quasi-states. Alternatively, one could co-opt the quasi-states and compatibilize them with the central state—perhaps by granting them de jure status on a selective basis. It is also possible that improvement in the quality of public politics and enhancing accountability in governance will eventually increase extraction performance and undermine quasi-states.

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This lays some groundwork for the present book on polycentricity. While some central state capacity is still critical, especially in some issue-areas that are best-suited to the biggest administrative unit, this book argues against the monocentric “strong unitary state” approach to fostering development. Instead, a more appropriate method may be to empower other collective choice units and in some cases to devolve some authority to quasi-states. The discussion of “compatibilizing,” “integration of trust networks,” and “limiting the central state” are attempts to work toward this goal. Incorporating polycentricity at the constitutional level potentially promotes public well-being and political development and productive social and economic relations. Without appropriate constitutional understandings, including conflict resolution modes, rapid group mobilization sets the stage for intergroup conflict escalation. Political actors involved in the constitutional framing process vigorously pursue their own political survival, seeking to secure positions of authority and retain them.2 This does not necessarily imply duplicity on the part of involved actors; rather it presumes that all actors have goals, and most agendas require their political survival. At the same time, it considers the role of constitutional-level understandings, which, in a polity as defined by Islamic identity as Pakistan, must touch on the Islamic tradition, even if implicitly. Islamic Tradition as Cultural Endowment Supporting Polycentric Metanorms Chapter 3, on polycentric metanorms in Islamic context, points to substantial rule-diversity and self-governed associational forms in the Islamic heritage, including such examples as the Medina compact, the Hilf al-Fudul, the Ottoman millet (recognized community) system, the Sufi tariqa (religious brotherhood) tradition, the waqf system of charitable endowments, and istihsaan (discerning alternatives and choosing well) in Muslim jurisprudence. “Minarchist” political Islam, a political theology compatible with polycentric metanorms, has been described in Malik (2008) and Malik (2011) and is further developed with regard to constitutional choice in this book, as well as distinguished from recent alternatives, such as Abdullahi Al-Naim’s (2008) position. Pragmatically, the secularism/theocracy dichotomy against the backdrop of a unitary state, an image from the European heritage, may not be a good constitutional fit to Islamic contexts, and could drive contemporary Muslim societies into polarization between assertive secularists and totalizing religious ideologies, rather than a more viable in-between. Minarchist polycentric Islam (sometimes shortened to “minarchism” in this book) presents a pragmatic path. The “minarchist polycentric Islam” label can be contrasted with confessional consociationalism (exemplified by the Lebanese constitution),

Introduction

15

the officially delineated cultural communities approach (found in Indonesia’s Pancha Sila system), and assertive secularism (best represented by modern Turkey, at least until the Erdoğan administration, which seemed to signal a shift first toward passive secularism, and then possibly toward increasing public embrace of religious symbol); each is based on the recognition (or nonrecognition) of communal identity rather that collective choice arrangements. The emphasis on polycentric metanorms also provides a sharp distinction from the vanguarding Muslim social movement organizations that appear to adopt a highly centralized form of rule-giving as a model for governance. The references to the minarchist variant of polycentric order reflect the particular path of my own scholarly trajectory, and are not meant to suggest that other foundations cannot support polycentricity in Islamic contexts. Ultimately, a self-governing polycentric order in Islamic context makes its own choices regarding the appropriate domains and authorities given to different collective choice units, including the central state jurisdiction, and these may or may not concord with a minarchist vision. Indeed, from a functionalist perspective or one that minimizes transactions costs or seeks to encompass externalities, there are potentially powerful public interest arguments for having the central jurisdiction provide some key governance services. OVERVIEW AND METHOD While touching on political theory, Islamic area studies, and comparative politics, this book is primarily an interpretative argument based on the meta-constitutional and constitutional levels of analysis in the polycentric governance tradition associated with the Bloomington school. Its “constitutional level of analysis” orientation relates to the Institutional Analysis and Design framework developed at the Workshop in Political Theory and Policy Analysis at Indiana University. Founded by Vincent and Elinor Ostrom, the “Bloomington School” has been globally influential3, and is explicated in numerous works (e.g., E. Ostrom, 2005; McGinnis, 1999; and Aligica and Boettke, 2009) as well as ongoing research programs of affiliated scholars (e.g., Sabetti and Castiglioni, 2017). The Institutional Analysis and Design framework distinguishes between operational, collective, and constitutional choice levels. Operational choice refers to individual decision-making, typically in day-to-day activities. The collective choice level refers to rules structuring operational choices. The constitutional choice level centers on the actors and rules for collective choice decisions, which are not restricted to the central jurisdiction alone, but through all centers of decision-making and forms of associational activity. The meta-constitutional level refers to understandings and orientations, related to what is considered legitimate or

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apt within a cultural context, that shape constitutional choice. Crucially, these analytic levels can be deployed in relation to any center of decision-making in society, not solely the central state jurisdiction (which is typically the focus of areas like constitutional law, or stylized depictions of the “state” in relation to “society”). The multiplicity and diversity of social associational forms is a major focus for the Bloomington school, particularly through the concept of polycentricity, as described below. Polycentricity in the Bloomington School Polycentricity is the idea that governance in society happens in many different locations rather than uniquely at a single center. The Bloomington school’s emphasis on polycentricity contrasts with depictions of sovereignty as a single source of political power and authority with exclusive responsibility for determining public policy (McGinnis, 1999: 2). The monocentric depiction of the state is cogently expressed in Thomas Hobbes’ theory of sovereignty, under which the “single, ultimate center of authority is indivisible, unlimited and unaccountable—the source of law, but not itself accountable to law” (V. Ostrom, 2012: 234). Polycentricity has been defined as “many centers of decision-making that are formally independent of each other” (Ostrom, Tiebout, and Warren, 1961: 831). In a polycentric political system, there are “1) many autonomous units formally independent of one another, (2) choosing to act in ways that take account of others, (3) through processes of cooperation, competition, conflict, and conflict resolution” (V. Ostrom, 1994: 225). Conflict resolution mechanisms may be central or noncentral. The question of how formality is construed and its relation with informality takes on particular significance in developing country contexts, as discussed in Chapter 2 and elsewhere in this book. “Governance” may be defined as a “binding decision making in the public sphere” (Hooghe and Marks, 2003: 233, footnote 1).4 Delineating the “public” sphere is potentially an exercise in culturally specific notions of private and public activity, and the polycentric lens finds rule-making in many arenas, some of which could be called “private.” When people discuss “government,” they often restrict their attention to the formal political center only, and sometimes to subnational formal governmental units; this often reflects an implicit legal institutional approach. Yet there are often different formal governance structures as well as officially unrecognized informal institutions that structure social relationships and transactions. Moreover, there are processes that shape how the various sources of collective choice interrelate, particularly concerning the degree of autonomy of each unit, its action arena, and other conditions for its operation. In Vincent Ostrom’s reading of the American political experiment, a key radical potential is for the whole system of human affairs being capable

Introduction

17

of organization under polycentric principles. If such a capacity exists, then “we could have human societies that no longer depend upon a unity of power to achieve coherence” (V. Ostrom, 1994: 224). This clearly goes beyond the public-private distinction.5 It takes the potential for individuals to be self-governing in association with each other seriously throughout human affairs. An important passage from an interview with Vincent Ostrom summarizes a motivation behind this project: We need not think of “government” or “governance” as something provided by states alone. Families, voluntary associations, villages, and other forms of human association all involve some form of self-government. Rather than looking only to states, we need to give much more attention to building the kinds of basic institutional structures that enable people to find ways of relating constructively to one another of resolving problems in their daily lives. Which, in addition, also connect to more encompassing communities and patterns of interaction. People can rely on self-help in arranging their institutions, rather than depending upon “the elite decision makers of government.” By relying upon principles of self-governance to apply to diverse units of government in fashioning a highly federalized and decentralized system, people can begin to alter, in a significant way, the price that applies to the supply of institutional arrangements in self-governing societies. When an individual within a local economy can help to provide the infrastructure of communal services—develop public thoroughfares, provide for the security of persons and property in a local community, arrange effective sanitation facilities, fire services, and healthful water supplies, etc., while at the same time extending the range of his or her own entrepreneurial opportunities to reach out to larger economic horizons—he or she can create indigenous patterns of economic and political development. In such circumstances, each person can learn how both to serve his or her own interests and, at the same time, to serve others in their communities. Democratic societies cannot be fashioned without such roots of self-governance. Nor can democracies survive in military struggles for power, whether within national-states or between nation-states. For this reason, the basic architecture of modern societies must, as Tocqueville has argued, draw upon a science of association to fashion rules of social interaction that apply from the level of the village to the level of the nation-state and beyond.” (V. Ostrom; Aligica and Boettke, 2009: 146)

As indicated in the above quotation, Vincent Ostrom drew substantially on his reading of the work of Alexis de Tocqueville, a French visitor to the United States in the early nineteenth century, whose widely read Democracy in America argued that the success of the American political experiment in democracy depended on the mores of citizenship, learned through religious and local municipal engagements. While the geophysical circumstances and the formal laws were important, the moral and intellectual condition of the

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people was paramount. Tocqueville asserted that while dictatorship was possible to sustain without religious faith, liberty was not. Among the risks ­Tocqueville famously pointed to were democratic despotism, a condition where a central bureaucratic authority gradually takes over increasing portions of the rule-making functions in society, depriving citizens of opportunities for learning self-governance, and furthering the need for more central government takeover. Enervating the habits of heart and mind that underlie self-governance would increasingly relegate governance to an immensely powerful central governing body. The polycentric approach and the emphasis in Vincent Ostrom’s work in particular were on capacities for self-governance, and especially on opportunities and motivations for individuals to act as civic artisans who sought to identify complementaries and problemsolving in creative ways. In Vincent Ostrom’s view, an important basis for self-governance, of central significance in the American political experiment, is a “covenantal ontology”—an understanding of a primordial human relationship with the transcendent (in the case of the Anglo-American settlers, a Biblical theology)—and covenantal methods, which involve the habits and mindset of forming associational relationships for mutual benefit. When considering “what is to be done,” individuals relying on a covenantal ontology and covenantal methods “can achieve a right understanding that ameliorates self-interest with an appropriate accounting for the interests of other participants in their community of being” (V. Ostrom, 1997: 188). This was Vincent Ostrom’s understanding of the “self-interest rightly understood” that Tocqueville viewed as the heart of a self-governing community. Its origins lie partly in the cultural endowment, and also in the experience of interaction and reciprocity that produces context-specific learning. Whereas in the monocentric Hobbesian depiction the sovereign central authority is above the law and answerable only to ­“natural punishments” such as intemperance that produces disease, in the fully selfgoverning society, it is the citizens that are sovereign in the right to make laws; as such, citizens are a source of potential failure in a democracy (V. Ostrom, 199: 188). I use “metanorm” in this book as shorthand for a norm at the “meta-constitutional level of analysis,” which encompasses long-lasting and often subtle constraints on the forms of constitutional, collective, or operational choice processes that are considered legitimate within an existing culture; many of these factors may not be amenable to direct change by those individuals under the influence of these cultural predispositions, but these cultural factors do change over time, in part as a consequence of changing patterns of behavior. (McGinnis, 2011: 173)

Introduction

19

According to my use of “metanorm,” an example of a polycentric metanorm in the American context is Vincent Ostrom’s combination of covenantal ontology, and covenantal methods supporting a self-understanding among individuals that consider the interests and perspectives of others in devising associations and relating to other associations. Much of the concern with the viability of polycentric orders rests on the pervasiveness and durability of this metanorm. A key concern of this book is the potential for and traces of a polycentricity-supporting metanorm in the developing country context with an Islamic identity. (Note that I have for simplicity used the term “metanorm” in the singular, but it may actually consist of a complex set of understandings). Tocqueville’s relevance, according to Shivakumar (2005: 6), is in the insight that good citizenship is needed for development and good governance, and citizenship is best learned in polycentric democratic orders. Democracy inculcates a shared understanding of rules, creating the institutional basis for successful collective action and development (Shivakumar, 2005: 7). Polycentric orders, however, are not necessarily “democratic”: that muchcontested label can mean different things, and the emphasis on electing representatives as the main aspect of democracy was criticized by Vincent Ostrom as potentially rule by elites and a “slender thread” for citizen input into deliberative rule-making processes, one that may be necessary but is not sufficient (Oakerson, 2017: 71). This critique draws in part on the concern of Montesquieu and others that large republics can succumb to oligarchy, partly because the human social problem of scarcity of time for attention means that substantive deliberative discourse engaging all participants is practically impossible. Small republics, while enjoying less risk of oligarchic domination, are more vulnerable to outside attacks. One solution is the “compound republic” comprising many small arenas for collective choice, yet able to act in concert for common purposes such as collective defense. According to the Bloomington school, a polycentric system is one where individuals have the capability to organize and devise rules for multiple government authorities at different scales. There is a distinct concern for “nesting” of local communities within the overarching order; this “can nurture and sustain the self-governing capabilities of local communities” (McGinnis, 1999: 2). Polycentric governance “refers to overlapping arenas of association where these arenas range in scale from local community organizations to more encompassing bodies politic” (Shivakumar, 2003: 10). In contrast to Hobbesian sovereignty, the polycentric alternative is “where all exercises of authority would be subject to limits and no one would be allowed to exercise unlimited authority” (V. Ostrom, 2012: 234). Governance by the central state authority is hierarchical, whereas polycentric governance is a “network of networks” (Shivakumar, 2005: 7).

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Polycentric governance by itself is not inherently effective. Polycentricity’s success as a feature in constitutional design depends on how rules and constraints are invoked in ways that structure and condition governance (Shivakumar, 2003: 11). Constitutional design should not be confused with particular government policies, programs, or initiatives. Rather, constitutional design is about shaping the rules and processes according to which government policies emanating from all associations exercise collective choice, formal or informal. Appropriate reference to polycentricity has the prospect for improving governance outcomes over monocentric approaches because recognizing polycentricity helps capture indigenous knowledge and because not recognizing self-organizing activities and potentials risks perverse and unintended consequences from government policies. Polycentricity increases the potential for adaptive learning and creative problem-solving (Shivakumar, 2003: 11). In monocentric governance, leaders claim “epistemological privilege”: superior or authoritative insight into the policy actions that are needed for the social good. The leaders may draw on policy experts, legislative deliberation, and an apparatus for implementation. In contrast, the assumption made in polycentric governance is that there are local and particular knowledge spaces and action arenas with minute and subtle information that local actors are well placed or best placed to understand. The monocentric approach to governance tends to denigrate local knowledge and informal indigenous institutions as “traditional” or “backward.” Yet polycentric design is often superior because it can identify deficiencies faster, and because it has greater flexibility in learning and adapting and improving organization as citizens participate in their jointly conducted activity (Shivakumar, 2003: 10–11). Polycentricity does not equal decentralization. While both refer to dispersed authority and administration, decentralization has come to mean that subnational governments received greater discretionary authority over policy and policy implementation. However, this is not fully “constitutional governance” in the sense that it “often lacks institutional depth in that it frequently fails to take into account the nature and placement of constraints with a system of government” (Shivakumar, 2005: 108). Nevertheless, moving from a monocentric to a polycentric order would likely require decentralization, among other steps. Institutions and Collective Action Elinor Ostrom has described “the theory of collective action” as “the central subject of political science” (E. Ostrom, 1998; cited in Shivakumar, 2003; 19, endnote 4). Institutions help overcome collective action problems.

Introduction

21

“Institutions” refer to “any form of constraint that human beings devise to structure human interaction” (North, 1990: 3; cited in Shivakumar, 2003: 5). Institutional analysis (with a goal toward policy analysis and improving outcomes through recommendations) depends on understanding action arenas. The unit of analysis is typically an “action arena,” composed of participants in a specific situation, and affected by exogenous factors. The analyst should learn not only about the structure of an action arena, but the factors affecting that structure itself, and consider linkages with other action arenas (Gibson et al., 2005: 27). The Bloomington school’s widely cited Institutional Analysis and Design framework categorizes institutional arrangements into three levels: an operational level, a collective choice level, and a constitutional level. Individuals make choices within fixed rules at the operational level. At the collective choice level, actors produce rules structuring operational level choices. At the constitutional level, actors produce the design of collective choice institutions; this is collective choice about collective choice. The ADICO (Attribute, Deontic, AIM, Condition, Or Else) syntax of institutions provides generic place-holders into which institutional specifications can be entered (Crawford and Ostrom, 1995; E. Ostrom, 2005). In Bloomington school terminology, institutional statements can be fully specified rules that fill all five ADICO components, while norms fill only the ADIC components, and shared strategies only fill the AIC components (E. Ostrom, 2005: 139–165). Due to the exploratory work described in this book, I am concerned less about precise mapping of institutional statements—and more about contextual and cultural potentials for shared meta-constitutional understandings that are likely to support the emergence of institutional resolutions to collective action problems, particularly in supporting the coexistence of diverse collective choice units, the diverse institutions constituting those units, and the diverse institutions devised by those units. I term these meta-constitutional understandings “polycentric metanorms” to reflect the broader literature’s usage of “norm” as something reflecting a cultural and contextual value that shapes expectations of behavior, rather than the more specified use of “norm” described above. For example, I note that polycentric metanorms can possibly but not exclusively be thought of as shared strategies at the metaconstitutional level. It is important to note that in the wider literature, the term constitutional choice is often used to refer to a formal arrangement of the central authority’s makeup and its relation to other units in the polity. In the Bloomington school approach, this is one possible subset of constitutional choice in some contexts. To Bloomington school analysts, every collective choice unit has its own constitutional-level rules, although these are often implicit or informal. Constitutional-level arrangements are a set of rules that apply to

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the government of human affairs, and this is not simply or exclusively the institutions of national governance. Instead, “principles of constitutional choice apply to the organization of all human associations as arrangements for the governance of common concerns” (V. Ostrom, 2012 (1976): 431). Constitutional choice applies as a continuing process beyond an “original” constitution: people continue to learn; there are new possibilities leading to new patterns of interdependencies, which “give rise to new, if inchoate, communities of interest” (ibid.). Moreover, moving “from an inchoate community of interest to an association ready to act on shared interests also requires a structure of authority” (ibid.), which implies meta-constitutional understandings that shape how collective choice units are constituted. In sum, in Bloomington school terminology, “questions of constitutional choices are involved whenever we take action to devise arrangements to govern human associations” (ibid.), and metanorms shape those constitutional choices. Understanding how collective action may take place relates to polycentricity as follows: “polycentricity refers to a process of self-coordination at and among multiple centers of collective action with the actors at each center economizing with respect to present circumstances and constraints” (Shivakumar, 2003: 10). There are many collective action problems, within each action arena, and among several such situations. There may be second-order collective action problems depending on how one defines the first-order collective action problems. Any proposed governance change or policy choice has potential unintended consequences; in common-pool resource governance, for example, the variables involved make it impossible to develop a comprehensive mapping and thus identify the optimal choice (E. Ostrom, 2005: 243), and this renders to all rule changes the character of a policy experiment. One virtue in a polycentric system is redundancy, in making it less likely that monumental centrally directed policy directives produce errors that are monumental disasters. Another virtue is that participants in different collective choice units can learn from the experience of others. A problematic connotation of the term collective action is that “collective” implies equal contributions from participants and equally shared benefits. The reality, as Gibson, et al., (2005) point out, may well be great asymmetries, such that elites or hegemons may impose the “collective” action and reap the greatest benefits, or even cause harm to others. A landlord’s private jail for punishing those who deviate from farming rules may be exploitative, harsh, and support a rule that appears unjust and ill-advised, but nevertheless count as a mechanism for sanctioning those who do not participate in (or deviate from or defect from) the “collective action.” How morally appropriate or superior a particular collective action is to alternatives is a distinct question from whether or not collective action takes place. A related problem is how to

Introduction

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separate meaningful choice from accident and force; the language of choice is used through much of the Bloomington school literature and in this book, but I do not explore the subjective experience of choice or agency more explicitly. Common-Pool Resources, Self-Governance, and Polycentricity The success of a polycentric order depends on the effective functioning of its individual centers of decision-making. One of the best-known parts of the Bloomington school has been on common institutional principles promoting successful self-governance of common-pool resources (CPRs). In a CPR, it is difficult to exclude users from access to the resource and the consumption activity of each user reduces the amount available for others. (This contrasts with public goods, where multiple users can access and consume the good without reducing availability for others, from private goods where a user can exclude others and diminish the amount of the good by consuming it, and club goods, from which users can be excluded, but the amount of which does not diminish with user consumption.) Pastures, forests, groundwater, and fisheries are typical examples of CPRs. The classic article by Garrett Hardin called “The Tragedy of the Commons” asserted that if left to their own devices, rational self-interested users would overexploit the resource, depleting it to the point of destruction. Economists usually assumed that either privatization of the resource or official state intervention as a thirdparty controlling entity was needed to prevent the tragedy. Elinor Ostrom and her coinvestigators disputed this presumption of a necessary tragedy outside of these two options, and described numerous cases where users devised selfgoverning mechanisms and sustainably managed the CPR. A number of principles underlay the successful cases of self-governing sustainable CPR management: (i) rules should clearly define who has what entitlement, (ii) adequate conflict resolution mechanisms should be in place, and (iii) an individual’s duty to maintain the resource should stand in reasonable proportion to the benefits […] (iv) monitoring and sanctioning should be carried out either by the users themselves or by someone who is accountable to the users […] (v) sanctions should be graduated, mild for a first violation and stricter as violations are repeated […] (vi) governance is more successful when decision processes are democratic, in the sense that a majority of users are allowed to participate in the modification of the rules and when (vii) the right of users to self-organize is clearly recognized by outside authorities. (Economic Sciences Prize Committee, 2009: 11)

The eighth point in particular touches on a critical aspect of polycentric governance related to the present study: the value of self-organizing activity

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and the necessary support or acceptance from external authorities. This has a significant implication for development studies, suggesting that the focus on state-directed or privatization-based management of CPRs is not necessarily the only option, and may actually disrupt successful self-governing activity or result in destruction of the CPR in question. Scholars of natural resource governance usually suggest several advantages of polycentric arrangements: (i) polycentric governance systems are better able to adapt when faced with social and environmental change; (ii) they provide good institutional fit for complex natural resource systems; and (iii) they mitigate the risk of institutional failure and resource losses on account of their redundant teams of decisionmakers employing diverse or redundant institutions. (Carlisle and Gruby, forthcoming: 4)

These advantages potentially exist outside the context of natural resource governance. Marshall (2009) suggests that polycentric arrangements offer “better access to local knowledge, closer matching of policy to context, reduction of the risk that a resource will fail for an entire region on account of multiple avenues for policy experimentation, improved information transmission due to overlap, and enhanced capacity for adaptive management” (summarized in Carlisle and Gruby, forthcoming, p. 13). There are also potential disadvantages: the transactions costs of coordination, especially in geographically dispersed contexts, can be high, and accountability can be diffused along with dispersed responsibilities. The Bloomington school’s analytic approach emphasizes institutional and contextual diversity, going beyond CPRs. Bloomington school scholars continue to explore ways to define, identify, and measure polycentricity, polycentric order, and polycentric systems (e.g., Blomquist, Garrick, and Thiel, forthcoming). My effort is particularly focused on the meta-constitutional undergirdings of polycentric orders in developing country contexts, particularly those with an Islamic self-conception. ­Figure 1.1, which I return to in Chapter 6, provides an interpretative structure for this study. Elements relating to the figure are examined in six chapters. Key Propositions Offered in This Book In this and the following chapters, the book advances several propositions: 1. In keeping with an emphasis on institutional diversity, the Bloomington school suggests a role for what I call polycentric metanorms: metaconstitutional understandings that support the productive interrelation of diverse, self-governing collective choice units and institutions.

Figure 1.1  Metanorms, choice, and constitutional rules-in-use.

Introduction 25

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2. In postcolonial developing countries with heterogeneous societies and low political capacity in official jurisdictions, polycentric governance requires particular attention to opportunities and challenges posed by unauthorized collective choice units and institutions, in relation to two types of official jurisdictions. 3. In contrast with the widespread depiction of monolithic and monocentric Islamic polities, substantial potentials for polycentric metanorms can be identified in the Islamic religious heritage, suggesting a cultural endowment suited to polycentric governance in contemporary polities with an Islamic self-conception. 4. Pakistan has significant historical traces consonant with polycentric metanorms in relation to an Islamic national self-conception, along with a low-capacity central state authority, heterogeneous society, formal constitutional instability, and monocentric impulses. 5. Pakistan has seen clashes between competing polycentric and monocentric metanorms and configurations across three types of collective choice units, along with strategic learning that supports polycentric metanorms. 6. While well-functioning polycentric governance in Pakistan or other Islamic developing countries is agent-dependent and cannot be fully specified, potentials are conditioned by polycentric metanorms, constitutional rules-in-use, and bounds that point to areas for further research. Elements of the Investigative Approach While grounded in the Bloomington school, this study draws on the New Institutionalism, including its rationalist and historical institutionalist variants. Institutions—formal and informal—structure social behavior, and human agency shapes institutions in ways that may be unintentional. Norms can be institutions and expressed as an institutional statement (E. Ostrom, 2005). A helpful simplifying assumption drawn from the rational choice literature is that choices are strategic and guided by political survival considerations. Exclusive emphasis on political survival, however, risks losing the role of cultural understandings and endowments in supporting some shared strategies or other institutional arrangements, as well as in constructing meaning, understandings of value, and logics of appropriateness. Building on terminology from Skelcher (2004), I also note that collective choice units can vary in their internal integrity, referring to their legitimacy and accountability before the population they serve, and external integrity, meaning the degree to which their autonomy is respected by outside actors.

Introduction

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This project is eclectic in method. The primary purpose is interpretative, not evaluative in the sense of hypothesis testing, and draws on published work for source material. I consider the views of interviews, polity observers and participants, the public statements of informed and influential figures inquiring into matters relevant to constitutional choice, and scholarship on Pakistan, Islam, and polycentric governance. My field research in Pakistan in 2005, 2008, and 2009 involved extensive, detailed conversations, many lasting over two hours, and contributed to earlier work (Malik, 2011; Malik, 2007). These interactions yielded insights into how influential and diverse participants in the Pakistani polity view the underlying political culture and evolution, reaching religious and nonreligious individuals, as well as Islamists and non-Islamists, elites and non-elites, and individuals from different ethnic, religious, and sectarian backgrounds. Several public records stand out as helpful sources: deliberations of the Constituent Assembly, judicial judgments into constitutional controversies, the Hamoodur Rehman Commission Report, and the Munir Report. These provide the basis for an analytic narrative of the contested constitutional metanorm of polycentric Islam and the constitutional challenge of accommodating diverse collective choice arenas. It is in intense examination of major polity crises and failures that constitutional-level contestation becomes prominent. The investigators inquire into what went wrong with respect to collective and operational choices, and wonder about what might be done to remedy things—including constitutional considerations. Moreover, the actual investigations reveal the informal practices that shape collective choices, and this sheds light on informal constitutional processes that the formal legal constitutional documents do not reveal. The Hamoodur Rehman Commission’s Report inquired into the events and circumstances leading to the breakup of Pakistan. Headed by the chief justice of the Supreme Court Hamoodur Rehman, the Report represents an extensive effort to investigate what many regard as the greatest national failure of the country’s history, because of its sweeping examination of grand and specific issues, its composition, and its unprecedented access to military and other officials and citizens. While some portions remain classified, the Report’s declassified remainder provides an invaluable survey of critical forces, actors, and choices in Pakistan. Moreover, the Report deliberately surveyed Pakistan’s periods of “constitutional rule” and martial law. In part because the debacle was associated with Indian intervention, the Hamoodur Rehman Commission Report has significance as an attempt to suggest how to remedy internal shortcomings and thereby thwart external threats. It represented a step toward accountability, although its impact was mitigated by the fact that decades passed before it was declassified.

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The Munir Report represents a far-reaching attempt to assess the circumstances and developments that produced the anti-Ahmaddi riots associated with the Ahrar movement. The report included 1600 pages of written statements, 2600 pages of evidence, 339 formally proved documents, letters, books, pamphlets; the report itself covers 38 pages (Khan, Hamid 2009: 72). This effort reflects careful deliberation on the role of Islam in the state. While admittedly narrow in its authorship (Justice Munir and Justice Kayani), the report drew on numerous sources and has been a reference for critical engagement with questions of Islam in Pakistani politics and society. The Munir Report attempts to deal with what may be termed the internal threat associated with intergroup rivalry, violence, and persecution, particularly as they relate to Islamic identity and minorities. Other sources include scholars and former government officials. G. W. Choudhury was a former government official as well as a scholarly commenter. Farooq Hassan was a well-reputed attorney and barrister (and adviser to several Prime Ministers). Hamid Khan’s constitutional history provides a helpful overview. As a textbook-style effort, it provides a glimpse of what interested and educated Pakistanis may learn about their constitutional history. Scholarly accounts and analyses from Ayesha Jalal, Vali Nasr, Omar Noman, Muhammad Waseem, Paula Newberg, and various others are also valuable resources for this effort. W. Cantwell Smith provides a valuable deliberative overview of Pakistan as an Islamic state, and its possible meanings; given his vantage point in the area before and after independence, his assessment is particularly valuable. A Brief Introduction to Pakistan’s Central State Arena Pakistan has experienced repeated junctures at which formal constitutional choice involving the central state jurisdiction was exercised and revisited. Based on their experience with older, relatively stable polities, analysts often presume that constitutional choices are long-lasting while more mundane collective and operational choices are transient and changeable. Formal instability in the Constitution in Pakistan may suggest the reverse, at the central state jurisdiction level: one prominent business executive observed sardonically that the Constitution was the easiest law to change in Pakistan, while outdated requirements for business licenses (such as watering facilities for pack animals) remained on the books, being more durable. While this position is overstated for rhetorical effect, it nevertheless summarizes a thorny challenge to constitutional-level analysis. Formal constitutional choices have been repeatedly modified, reinterpreted, ignored, suspended, rejected, and replaced. Particularly in the transition from civilian to military and from military to civilian regimes, major rewrites of

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formal constitutional provisions have taken place. Farooq Hassan notes that “no constitution, no matter how well it is written, can achieve its objective unless the major actors of the Republic perform their functions in the letter and spirit of the country’s basic law” (Hassan, 2006: 284). In Political Survival in Pakistan: Beyond Ideology (Malik, 2011), I argued that narrow winning coalitions in Pakistan have constrained the ability of ideologically diverse incumbent leaders to provide majority goods, and shaped challenger strategies. This gave some indication of the constitutional rules-in-use in Pakistan, suggesting that the experience of collective choice in the national central state jurisdiction arena in Pakistan differs substantially from formal constitutional provisions. Polity members have to abide by the formal constitution if it is to function as a meaningful prescription for how collective choice is to proceed. A fragile basic law detracts from the polity’s coherence. By 1971, Pakistan had already had three constitutions, numerous drafts, and two periods of martial law (Choudhury, 1974: 10). Three military coups have thwarted civilian political processes, and the military continues to influence political processes in civilian periods. Despite the deadlocks, suspensions, and tensions, constitutionalism in Pakistan remains alive as a repeated reference point in judicial arguments over legitimacy (Waseem 2006). Rather than a dichotomy between “constitutional rule” and “military rule,” the military sees “its own role in transitional terms, as a facilitator to bring about change in the constitutional edifice according to its own preferences and priorities” (Waseem, 2006: 109). The constitution and debates over specific provisions remain common in public deliberations. M. A. Jinnah, the founding figure and a charismatic leader in the Weberian sense (Hayat, 2007), became president of the Constituent Assembly and started the constitution-making process. Jinnah’s role was “routinized” into the Pakistani bureaucracy (Hayat, 2007), rather than into a political party that could mobilize the ethnically diverse citizenry into a mass support coalition. Considering this backdrop, some mechanism, such as a vigilant citizenry and a lasting political settlement among diverse groups and collective choice units, may be especially necessary for constitutional stability in Pakistan. That Pakistani society is heterogeneous and fragmented makes such collective outcomes improbable but not impossible. One key to understanding the constitutional process in Pakistan revolves around political survival interests of incumbent members of the legislative bodies, as well as those in the executive arm, such as the heads of the civil bureaucracy and the military, and challengers, both in the form of those seeking existing offices, or revolutionary efforts to remake the polity. Political survival requirements of achieving and maintaining a winning coalition shapes leaders’ and challengers’ attempts to alter constitutional

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law, as well as their willingness to undermine, ignore, or implement particular provisions. Particular configurations of political survival and constitutional rules-in-use may possibly help reinforce an Islamic polycentric metanorm. But a major concern is the demonstrated ability of narrow winning coalitions to find and exploit opportunities for dominance, turning the formal separation of powers and other constitutional requirements into vehicles for capturing policy. Despite a variety of ideological postures by central jurisdiction managers, such capture has been a recurring pattern in Pakistan resulting in a diversion of goods toward the narrow winning coalition, an underprovision of majority goods, and substantial dysfunction (Malik, 2011). This raises some far-reaching questions. Does a polycentric polity filled with diverse and semiautonomous jurisdictions make it more difficult for a narrow coalition to emerge, capture central state authority, and dominate others? Could a polycentric architecture be vulnerable to a kind of internal colonialism, replicating the British hold over India, and becoming the basis for divide and rule activities by a manipulative and powerful dictator at the center? The short answer is “possibly, but not necessarily.” Associations potentially constrain autocracy by providing incentives for state managers to bargain with organized social actors. Yet polycentric arrangements are vulnerable to strategies of dominance. It may be that allowing underground entities to provide above ground governance, and bringing sunshine, transparency, and accountability to their actions, would eventually provide the organizational wherewithal and basis for a society that could successfully resist and counteract the incursions and excesses of an over-ambitious chief executive. In a deeply polycentric polity, there might be little that the central executive authority could do given the widespread veto points among diverse, autonomous jurisdictions. What mechanisms could be put into place that would allow and encourage alternative winning coalitions able to check executive power? James Madison, commenting on the American political experiment, noted that presuming good intentions was not the basis for constitutional effort; if people were angels, then government would be unnecessary. Instead, ambition had to be made to counteract ambition through a system of checks and balances. The American political experiment benefited from the enormous natural resource base the country had or was able to acquire, as well as the lack of a pressing threat from a neighboring giant. Pakistan’s security imperatives amid an existential threat made the need for a capable, modern, well equipped, and large standing military force appear paramount.

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Historical Overview of Formal Constitutional Developments in Pakistan Constitution drafting in much of the postcolonial Muslim world was monocentric, perhaps best captured by the admittedly extreme cases of several countries that turned to the same resource: a French-educated Egyptian jurist Abd al-Razzāq al-Sanhūrī was brought in to draft the Egyptian Civil Code of 1948, the Iraqi Code of 1951, the Libyan Code of 1953, and the Kuwaiti Civil Code and Commercial Law of 1960–1961 (Al-Naim, 2008: 17–18). In each case, an autocratic ruler brought him in to draft a comprehensive code that was put into law without public debate. Pakistan is distinct from some postcolonial Arab states, however, in the extent of active, public constitutional deliberation. This is not to say that a constitution was produced with an inherited basic law. Like many postcolonial societies, Pakistan inherited a political tradition and constitutional legacy. In Pakistan’s case, the imperial heritage formed the original constitution of the country. The Government of India Act 1935 is an important reference point, for example, as was the shared assumption that parliamentary democracy was an appropriate design for formal government. M. A. Jinnah, Pakistan’s founding figure, was an eloquent, highly successful lawyer with British training. Substantial reference to the colonial heritage is necessary for understanding the context within which Pakistan was formed and emerged. The table below describes some major sources and shifts of formal constitutional arrangements in Pakistan. A key aspect is the tug and pull between executive and legislative; as a parliamentary democracy the two are largely united, but the role of the president has varied between a strong office with the ability to dismiss the prime minister and dissolve the legislature, and a weaker, more symbolic presidency without this substantial power over the prime minister. A second issue has been the relationship between the federal center and units—an area discussed in more detail in Chapter 5. Chronology of selected constitutional developments shaping official jurisdictions in Pakistan ○○1919 Montagu-Chelmsford Reforms specify “dyarchy” ▪▪ apportioned control of provincial policy areas to a political executive and a legislature ○○1935 Government of India Act, which provides the basic constitutional setup for Pakistani politics at independence

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○○1940 Lahore Resolution, also called the “Pakistan resolution,” ▪▪ calls for “sovereign and independent units” ○○1947 Independence of India Act ▪▪ Governor-General has the power to declare emergencies and rule directly in provinces ○○1949 Objectives Resolution declares an Islamic orientation to Pakistan’s Constitution ○○1954 Governor-General Ghulam Mohd. dismisses Constituent Assembly ▪▪ Constituent Assembly had amended Government of India Act 1935 to divest Governor-General of power to dismiss Ministers, making ministers responsible to legislature rather than to executive authority of Governor-General ▪▪ Part of battle for dominance between executive and legislature ○○1956 Constitution ▪▪ Parliamentary ○○1958 Mirza/Ayub Khan coup ○○1962 Presidential Constitution ▪▪ “Islamic Republic” ▪▪ One Unit (West Pakistani jurisdictions absorbed into one province) ▪▪ Basic Democracies ○○1970 Elections produce Awami League win in East Pakistan, PPP win in West Pakistan ○○1971 Civil War; Secession of East Pakistan/Bangladesh ○○1973 Constitution ▪▪ federal, with a prescription for devolution to provinces ▪▪ parliamentary democratic design ○○1977 military coup led by Zia-ul-Haq ▪▪ ZA Bhutto executed ▪▪ Martial Law ▪▪ Hudood Ordinances ▪▪ 1988 Zia killed ○○8th Amendment under Zia; high executive power against legislature, including president’s right ability to dismiss civilian government ○○late in the civilian rule period following Zia’s death, Prime Minister Nawaz Sharif’s government removes the president’s power to dismiss the government ○○2000 military coup under Pervez Musharraf ▪▪ 17th Amendment under Musharraf; high executive power against legislature, allows president to dismiss of civilian government ▪▪ 2007 Benazir Bhutto assassinated ○○2009 Musharraf resigns

Introduction

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○○2010 Eighteenth Amendment to the constitution restores parliamentary supremacy (removing the ability of the executive to dismiss the prime minister), strengthens federalism ○○2013 Musharraf returns to Pakistan to stand for elections, but is barred from politics and placed under arrest ▪▪ 2013 elections make history, as one democratically elected legislature serves its five-year term (even though the Prime Minister Gilani was forced to step down); and is replaced by another elected government ○○2017 Prime Minister Nawaz Sharif resigns under a corruption inquiry Pakistan had a serious practical difficulty for government administration—its West and East were separated by India, and it was reportedly faster to get from Karachi to Marseille than to East Pakistan. There was also worry among the West Pakistani elite that they would lose their own social position if an open election process gave power to East Bengal. The 1954 elections in East Bengal brought maximal provincial autonomy-seeking politicians into the second Constituent Assembly (Waseem, 2006: 108). The 1956 Constitution, featuring a strong president and weak prime minister, followed the pattern of the 1919 Montagu-Chelmsford Reforms, which established dyarchy at the provincial level. Although the 1956 Constitution took nine years to frame, it lasted two and half years. There were four Prime Ministers in this period. The 1956 Constitution, proposed by the Constituent Assembly, was “unusually decentralized” and reflects the more federal nature of authority envisaged at that time. It also reflects the fact that the Constituent Assembly members were not hostage to the monocentric tendencies of the administration that came to dominate in the form of executive authority exercised by Ghulam Mohammad, Iskander Mirza (both associated with the administrative bureaucracy) and Ayub Khan (a military officer). The center had declared emergency in East Pakistan and taken over its government for two months in 1958. When its government was restored, a dispute over a motion declaring the Speaker to be of “unsound mind” led to physical altercations in the East Pakistan Assembly during which the Deputy Speaker was mortally wounded by a paperweight. This incident provided part of the rationale for the martial law imposed by Iskander Mirza and Ayub Khan (Hamid Khan, 2009: 117). There were other serious problems, including falling industrial production, inflation, and increasing problems in settling refugees to West Pakistan. The 1958 coup thwarted elections that may have switched the source of legitimacy to the parliament and away from the judiciary/executive, undoing the “military-bureaucratic establishment’s cherished goals defined in terms of establishing a presidential form of government, a unitarian model of rule, a strong executive opposite a weak legislature and a strong Centre against weak

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provinces” (Waseem, 2006: 109). An underlying worry among the West Pakistani elite was that open elections under the 1956 Constitution would bring about an East Pakistani Prime Minister. The 1958 coup also began what Pakistani political scientist M. Waseem calls “Punjabization” of Pakistan, alienating other ethnic groups (Waseem, 2006: 109). Waseem refers to this as the “model of one-province-dominatesall,” which posed problems for Pakistan given that East Bengal had the majority of the population, and after 1971, Punjab had the majority (Waseem, 2006: 114). As described in Chapter 2, Henry Hale’s arguments (2001, 2004) about the potential threat a “core ethnic region” poses to a polity are relevant here; the core ethnic region is either poised to capture the central state, or, if alienated, to threaten the polity’s integrity. The 1971 civil war followed an election that seemed to threaten West Pakistan’s dominance. The country split in two, the former West Pakistan to hence be called “Pakistan.”6 If the 1962 Constitution ushered in by military coup leader Ayub Khan epitomized Presidentialism, the 1973 Constitution epitomized parliamentary sovereignty. Zia-ul-Haq’s military coup in 1977 followed in the wake of the contested 1977 elections. Zia-ul-Haq’s regime instituted the Federal Shariat Court in 1980, which was supposed to act as an Islamic judicial review, and promulgated the Hudood Ordinances in 1979. These “proclaimed that Islamic law would be applied to the four offences subject to Hudood (literally, boundaries): intoxication, theft, zina (adultery/fornication), and qazf (slander or false accusation)” (Malik, 2011: 42). Zia-ul-Haq also added to the penal code, prescribing life imprisonment or death for blasphemy against the Quran or the Prophet. In 1985, Zia-ul-Haq restored the 1973 Constitution, but added the 8th Amendment; its Article 58 Clause 2 (b) allowed the President to dissolve the National Assembly, dismissing the prime minister and cabinet, “where, in his opinion, ‘a situation has arisen in which the Government or the Federation cannot be carried on in accordance with the provision of the Constitution and an appeal to the electorate is necessary’” (Akhtar, 1992: 258). No assembly from the five elections between 1985 and 1997 finished its term, and each was dissolved by the President using Article 58 Clause 2 (b) (Zafar, 2000: 3). A shift took place when, in 1993, President Ghulam Ishaq Khan moved to dismiss Prime Minister Nawaz Sharif’s government, but the Pakistan Supreme Court accepted Nawaz Sharif’s appeal and ordered his government reinstated. Eventually, both the President and Prime Minister resigned in a deal facilitated by the chief of Army Staff. In a second tenure as Prime Minister, Nawaz Sharif’s government amended the Constitution to remove the president’s ability to dismiss a prime minister (Zafar, 2000: 4). A military coup took place, and the Constitution was put into abeyance. General Musharraf issued the Legal Framework Order establishing a military-dominated National Security Council, and also restored the Article 58 2 (b) power to

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dismiss the prime minister (Talbot, 2005: 401). When the judiciary was about to consider Musharraf’s eligibility to contest an election for President, he required the judiciary to take a new oath, making “as many as sixty one (61) Judges of superior judiciary including chief justice of Pakistan and chief justices of three Provinces dysfunctional for many of them either did not agree to take or were not given the oath” (Chief Justice Iftikhar Chaudhry, Supreme Court Judgment, July 31, 2009). Pressure over the reinstatement of dismissed judges was a prominent factor in Musharraf’s resignation in 2009. The 2010 18th Amendment to the Constitution ended the executive’s ability to dismiss the prime minister, and devolved more authority to the provinces, a process that had originally been envisaged in the 1973 Constitution. Pakistan’s Low Political Capacity In polities with poorly enforced laws and a degree of apparent domestic anarchy, one can debate whether reference to formal law is a useful analytic exercise for understanding the rules-in-use. It is hard to say that there is a “constitution” to international relations if the rules of the game are nothing other than anarchy and brute force, as some international relations “realists” have suggested. Yet even ostensible anarchy is ensconced in constitutive social understandings and protocols (Bull, 1977). The constructivist critique of realist international relations theory focuses on the need to specify actor identities and interests in understanding how a given system functions, and its possibilities for transformation (Wendt, 1992). Further, one can find particular issue-areas with relatively stable governance “regimes” that contrast with the image of fluid lawlessness (e.g., Keohane, 1984). Pakistan has been a relatively “weak state” in the sense of having low political capacity in its central jurisdiction, very weak in its inception and growing since. One way to define political capacity is the ability to allocate and reallocate resources in society for state purposes (Snider, 1992). Pakistan’s low political capacity can be seen in the relatively low portion of the population that pays direct taxes, as well as the total tax compared to the country’s national income. Despite laws and declared public efforts, it has not been able to raise the taxes that could be expected from its population given the makeup of the economy. Other indicators of state weakness include gaps in public goods provision. Widely cited governance failures extend to the law and order situation and the ineffectual delivery of public services, such as education (as seen in ghost schools and undereducation), health (as evidenced by high infant mortality and other indicators), and needed infrastructure. Furthermore, land reforms—acknowledged by several Pakistani governments as necessary for development—have been thwarted and lackadaisical, and landowners remain important powerbrokers.

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Pakistan’s weakness as a state at its inception arose partly because the British Raj machinery was left behind in Delhi; Pakistan’s new administration “had to govern out of a hotel in Karachi without the rudiments of a national government over provinces that had no natural grid among them, and some of which were reluctant participants in the Pakistan movement” (Nasr, 2001: 26). In addition to the lack of an effective inherited apparatus for governance, Pakistan’s weakness as a state is partly traceable to the initial bargain that led to its creation, which involved “intricate negotiations over power between future state leaders, colonial powers, and various ethnic and social groups” (Nasr, 2001: 25), resulting in a state with “greatly constricted” powers and “from the outset controlled by checks and balances that obviated the possibility of formulating effective economic and social policy” (Nasr, 2001: 26). Moreover, the imperial withdrawal and action in the subcontinent meant that state-building from mobilizing people and resources did not happen. Nasr summarizes this as follows: Both Malaysia and Pakistan are new states with weak notions of nationality— states that were literally conceived of at the moment of birth and lack continuity in time. They are, moreover, multiethnic states that include important population groups that were not included in the new states willingly. Both Malaysia and Pakistan lack a strong notion of nationalism born of a sustained struggle for independence against colonialism. In both countries the ruling elites closely collaborated with the British to the very end—to stave off Hindu hegemony in Pakistan’s case and the communist Chinese threat in Malaysia’s. In both cases the populations that inherited the state were beneficiaries of colonial largess. […] The close connection to colonialism in both cases made for states that were not forged through the crucible of the struggle of independence, but were rather handed down—created—at independence.” (Nasr, 2001: 25)

Pakistan’s difficulties in building a strong state apparatus able to remold society are traceable to its initial bargain. There was a relative lack of a widespread indigenous struggle for Pakistani statehood against an unwilling colonial overlord, and consequently, deal-making with local powerbrokers was needed to give some coherence to the nascent state. The best example may be the Pakistan Muslim League: rather than playing a function comparable to Congress in mobilizing the population, the PML recruited support by accepting powerful landlords into its ranks as nominees for elective office. The fact that large-scale mobilization of people and resources for state formation purposes did not happen in the waning colonial era suggested that such mobilization would be difficult to initiate after independence.

Introduction

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Constitutional-Level Struggles in the Central Jurisdiction: Bureaucracy vs. Legislature A critical question that has recurred in Pakistani history is whether final authority rests with the legislature or with the executive bureaucracy. The competition between elected and unelected entities for political power at the central state jurisdictional level can be described as a struggle between institutions of the formal “state,” typically meaning the civil and military-bureaucratic executive apparatuses that implement policy, and institutions of formal “government,” meaning those that are in principle supposed to set official policy; these are usually elected legislators. The British colonial legacy of “vice-regalism” privileged executive authority while retaining some function for legislatures. More widely, the tug and pull between executives and legislatures feature prominently in many polities, particularly where military figures claim a supreme political prerogative as guardians of the peace. The struggle over control in the central jurisdiction has significant implications for the autonomy and integrity of collective choice units other than the central jurisdiction. However, this is a more complex relationship than simply assuming that a civil bureaucratic dominance is necessarily more monocentric than legislative supremacy. As discussed in Chapter 5, some military rulers found it advantageous to cultivate and empower sub-provincial authorities as a way to counter provincial resistance, and in “civilian” periods, provincial authorities have dragged their feet or undermined the autonomy of some sub-provincial jurisdictions. In the long run, this contest in the central jurisdiction sets expectations for stability and autonomy, and affects the degree to which agents in the polity discount the shadow of the future, thus shaping their strategic calculus. From a historical institutionalist perspective, the issue of the integrity of the central jurisdiction’s collective choice processes reflects a colonial legacy: “vice-regalism” and “dyarchy” were British colonial practices from 1921 to 1937, under which the political executive in India’s provinces was responsible to both the local legislature as well as to Britain through the office of the Governor or Governor-General (described in more detail in the discussion of center-unit relations). As the founding figure, Jinnah’s eloquent rhetoric supported a democratic polity, with the presumption that the legislature would be authoritative on policy matters. In his practice as chief executive—as ­ Governor-General, President of the Muslim League, and head of the Constituent Assembly—he concentrated substantial power around himself. He set the precedent of highly centralized control. If Jinnah is viewed as the charismatic leader, and the administrative bureaucracy as the institution that “routinized” his authority (Hayat, 2007), then continuing centralized governance is unsurprising. Jinnah was in office for just over a

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year before he passed away. His lieutenant and successor, Liaquat Khan, did not enjoy the same authority, and, being a migrant, did not have a strong indigenous support coalition. The “establishment”—chiefly the military and bureaucracy—had a centralizing impetus; they tended to rationalize their preferences through assertions of national interest and security. In contrast, the political leadership tended to be “disaggregated,” representing the “public interest” as it sought to voice constituent grievances and seek a corresponding reallocation in state resources (Waseem, 2006: 103). The establishment tended to overwhelm the “political class,” meaning those holding or aspiring to formal offices in electoral representation-based legislative institutions. From the perspective of Harold Lasswell’s definition of politics as who gets what, when, and how, the establishment was a profoundly political actor in its ability to determine who gets what, when, and how. This was not unique to Pakistan. To South Asian historian Ayesha Jalal, Indian democracy is explained more by the “central unitary apparatus’” role rather than “politicians” and the key conflict was between elected and unelected institutions; both India and Pakistan “displayed covert and overt authoritarianism respectively” (Waseem, 2006: 103). The countries differed more in degree than in kind; each was concerned with “centralization of power at the cost of provincial autonomy, securitization of the national vision, use of ideology to subvert the process of articulation of regional or class interests and a discouragement of the politics of issues in favour of the politics of identity” (Waseem, 2006: 103). To Hamza Alavi, the postcolonial state was relatively autonomous, and independent of the dominant classes. The appearance of “democracy” or “authoritarianism” is less significant than first appears because of the strength of the state apparatus as a governing body. Executive Authority to Dismiss Legislature-Formed Cabinets Dramatic showdowns over the executive’s powers took place from Pakistan’s early years. The Constituent Assembly attempted to assert its sovereignty and to curb the Governor-General’s powers—a classic in the tug and pull between executives and legislatures. The Nazimuddin Cabinet had been dismissed in April 1953 (in a maneuver by Ghulam Muhammad who had obtained the position of Governor-General). In 1954, the Constituent Assembly repealed the Public and Representative Offices (Disqualification) Act (PRODA) of 1949, by which complaints against ministers could be made to the provincial Governors or the Governor-General. A judicial inquiry could then be initiated, potentially resulting in the charged individual being banned from public office for a number of years. PRODA could be used selectively as a stick by which the Governor-General could influence the political process, by threatening political leaders with loss of office.

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Also in 1954, the Constituent Assembly amended parts of the Government of India Act, 1935 (which had been adapted for Pakistan), in ways that divested the Governor-General of his powers to dismiss his ministers, and made the ministers responsible to the federal legislature (Hamid Khan, 2009: 77–78). The drafting of the constitution was then turned over to experts under a January 1, 1955 deadline. Unsurprisingly, from a political survival perspective, the Governor-General opposed this move. On October 24, 1954, Governor-General Ghulam Muhammad dismissed the Constituent Assembly, declaring that it had “lost the confidence of the people and can no longer function” (quoted in Hamid Khan, 2009: 78). A compliant Prime Minister Mohammad Ali reshuffled his cabinet, stating “Constitutionalism is important, but more important by far is the security and stability of our country” (cited in Burks, 1954: 544). In Calder’s (1956) review, Constituent Assembly discussions were concerned with corruption. The Deputy President of the assembly, Mr. M. H. Gazder, argued that PRODA served as a political weapon. (Subsequently, and into the twenty-first century, various “accountability” measures appear to have been used primarily to punish political enemies). Some expressed concern that repealing PRODA would protect certain “delinquents” who probably should be disqualified. According to the Hamoodur Rehman Report, Ghulam Mohammad used a growing crisis over food scarcity and inflation, as well as tensions over language, to expand his power; he used the PRODA against some political figures, and dismissed Prime Minister Khwaja Nazimuddin in anticipation of replacing him with a more pliable prime minister. This was “the first blow against democracy” (Hamoodur Rehman Commission, Chapter 3, Section 28, p. 33). The second Constituent Assembly produced a draft Constitution (published in January, 1956). The draft largely replicated the previous draft made by the first assembly. The polity was supposedly based on the British parliamentary system; it would be unicameral. Power was concentrated in the parliament and its cabinet, although there was a president and a vice president. The Hamoodur Rehman Commission commented that “good intentions” and “sincerity of purpose” might have rendered the 1956 Constitution workable. However, “self-seeking politicians and over-ambitious Heads of State had reduced the Constitution to a farce, and the trappings of democracy had degenerated into a contrivance for the advancement of personal ambitions of a few” (Chaper 4, Section 8, [p. 43] Hamoodur Rehman Commission). Regarding the latitude given to (or appropriated by) the Head of State (the president), the Hamoodur Rehman Commission quoted directly from the Constitution Commission of 1961: “It cannot be said that they [the President and his predecessors] did not interfere, or that they were not responsible for

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the confusion we have had in the political field, or that they were free from personal, or provincial, considerations but history shows that power passed effectively from the Head of the State to the people’s representatives only when the later became disciplined and stood together to oppose autocracy” (Constitution Commission Report (1962) quoted in Chapter 4, Section 8, Hamoodur Rehman Commission). The Constitution Commission went on to say that such interference by the executive would have been impossible if there had been “discipline and solidarity in the parties in power” (quoted in Chapter 4, Section 8, Hamoodur Rehman Commission). This is another way of saying that there must be a plausible successful collective action by alternative coalition weighty enough to challenge the autocratic executive’s winning coalition. Another way of saying this is that there must be a way to support collective action by a coalition opposed to the executive. Many more jurisdictions would make that harder, probably, because more participants increase the likelihood of free-riders or defectors, undermining the collective action. In executive-legislature relations, the 1956 Constitution left open the possibility of situations in which the president could force a dissolution or refuse advice for dissolution. There were some controls and checks. Rather than simply allowing the president to dissolve the assembly, he had to act on the advice of the cabinet; however, he could dismiss the prime minister, and appoint a new one, and then dissolve the assembly on his advice. Also, a prime minister who had been defeated in the National Assembly might call for a dissolution, in which case it is difficult to imagine the president following this advice (because it is done out of the personal political interest of the prime minister rather than the legislature as a whole) (Hamid Khan, 2009: 102). The Hamoodur Rehman Commission Report asserts that Iskander Mirza “believed only in ‘controlled democracy and the separation of religion from politics’ two theories which struck at the very root of Pakistan” (Hamoodur Rehman Commission, Chapter 3, Section 44, p. 37). This shows the Hamoodur Rehman Commission’s own vision for Pakistan: a parliamentary democracy in which religion was not separated from politics. The Hamoodur Rehman Commission viewed Mirza’s coup and Ayub’s takeover shortly thereafter as two betrayals of Pakistan, and accused Ayub of a conspiracy to take over the government; Ayub “utilized President Iskander Mirza as a means for achieving his purpose smoothly and swiftly. As soon as that purpose was achieved Iskander Mirza was packed off and Pakistan became the victim of a double treachery” (Hamoodur Rehman Commission, Chapter 4, Section 9, p. 43). Such a bald accusation must have been widely and strongly felt to be included in the formal report. It is overwhelmingly clear to people (other than partisans of a particular executive) that overstepping bounds by

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central state managers have caused enormous disruption to constitutional processes in Pakistan. Martial Law Dramatic examples of institutions of collective choice being displaced by unelected ones occur in martial law regimes. The notion of martial law— when it denotes the forcible removal of constitutional processes—seems a contradiction in terms. Its frequency in Pakistan’s history means that it must be examined. The most famous—or infamous—instance is Justice Munir’s validation of a military government after the fact, by reference to Hans Kelsen’s suggestion that a revolution is an accepted way to bring about governmental change. Martial governments have typically claimed that they seek to obey the constitution “as much as possible,” while assuming the prerogative to define what is “possible.” The Hamoodur Rehman Commission Report offers a brief but illuminating segment on the meaning of “martial law,” and distinguishes between several uses of the term. One is simply the military’s rules for its personnel; another refers to the powers a military commander assumes in a conquered territory. But in probably the most important distinction, the Commission explains that the military can be used at the request of civilian authorities to help suppress riots and insurrections. This is different, however, from replacing civilian authorities with martial ones. The proclamation of martial law does not mean closing the civil courts nor does it mean that the military commander can abrogate the fundamental law of the country (Hamoodur Rehman Commission, Ch. 6, Section 42, p. 63–64). Yahya Khan’s takeover was a constitutional violation in that the 1962 Constitution required the National Assembly Speaker to take over after Ayub resigned. The Hamoodur Rehman Commission expressed outrage, voicing its conviction that “martial law” does not mean abrogating all civil laws or the fundamental law of the country, and the commission failed to understand how military officers who had taken an oath to defend the Constitution could then suspend it. The Hamoodur Rehman Commission suggests that the army in particular developed a misconception after 1958 that “Martial Law can always be imposed by a military officer in the area in which he is in command. In other words, whenever a military commander, however low ranking, finds that the ordinary government cannot be carried on within the area in his command, he has under some law which has authority superior to the Constitution, both the right and the obligation to impose Martial Law” (Hamoodur Rehman Commission, Chapter 5, Section 42, p. 63). Incumbents pursuing political survival have altered the Constitution to suit themselves. These alterations permitted a military ruler to retain authority as a “President,” to dismiss the legislature, and to entrench executive authority.

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Glaring examples include the 8th Amendment, introduced by Zia-ul-Haq in 1985, and the 17th Amendment, introduced by the Musharraf regime in 2002. The longevity of such regimes is partly due to outside resources; the United States has found it expedient to support military juntas for geopolitical reasons. That in turn translates into American influence over Pakistani policy, which effectively reduces what (extending the notion from Skelcher (2004)) may be called the external integrity of Pakistan. The Judiciary, Executive Power, and Constitutionalism Newberg (1995) argues that law in Pakistan has been inextricably intertwined with politics. Political executives at the apex of the central state jurisdiction in Pakistan have historically played a significant and often dominant role. A critical facet relates to judicial independence: “the political meaning of rights and of judicial autonomy—whatever their constitutional rendering—is directly attributable to the executive-dominated state” (Newberg, 1995: 28). This is because the executive has amended the constitution or limited judicial authority “in order to limit the potentially disruptive effects of fundamental rights on the political system” (Newberg, 1995: 28). Further, the authority of the law has been eroded as military-bureaucratic rulers in particular have sought to suspend the constitution (holding it in “abeyance”), obtain judicial validation for their seizure of power, replace key constitutional provisions with executive ordinances, or otherwise remake the constitution in substantial ways. According to the prominent Justice Samdani, “the judiciary in Pakistan tried, in times of crises, to avoid confrontation with the executive and went out of its way to take the path of least resistance. It upheld the de facto situation rather than declare the de jure position” (quoted in Newberg, 2002: 7). The military has sought “amenable” chief justices of the Supreme Court and provincial High Courts (Hassan, 2006: 277). When members of the judiciary are dismissed for political expediency, judicial independence, and with it, the political relations ordered by formal rules are eviscerated. Yet the superior judiciary has played an important role in shaping outcomes. Pakistan has faced what might be described as a persistent constitutional crisis. To Hamid Khan, the “very foundation” of the constitutional and administrative basis for the country was shaken by poor judicial choices: The mischief caused by finding justification for an arbitrary, malicious, and capricious act of a Governor General, who was neither mentally nor physically fit, had to be undone with enormous judicial jugglery and pedantic and abstract legal reasoning. The Federal Court had to import an alien concept of civil or state necessity to get out of the legal mess it had created without fully realizing the potential mischief of the doctrine for the future constitutional course of Pakistan. (Hamid Khan, 2009: 89)

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In Hamid Khan’s view, finding a legal rationale for the GovernorGeneral’s action was severely disruptive to the Pakistan’s development as a polity bounded by a formal constitution. The Federal Court deployed the doctrine of state necessity to remove Pakistan from its constitutional impasse. This had the potential to create mischief in Pakistan’s future constitutional course (Hamid Khan, 2009: 88–89). The effort was to validate laws that the Governor-General could not restore (according to the court’s own ruling), in order to “avoid a complete breakdown of the constitutional machinery” (Hamid Khan, 2009: 86). Once the doctrine was used, it had a long-term consequence: a shift that allowed more far-reaching interventions by the executive authority that contradicted, suspended, or altered constitutional provisions, and thus rendered the constitutional framework less relevant to political calculations. It is important to note that there have been prominent instances of the judiciary resisting political pressure from the executive. A prominent recent example is what the defiance Iftikhar Chaudhry showed to the political executive Pervez Musharraf. A notable previous example is Justice Samdani’s willingness to grant Zulfikar Ali Bhutto bail despite the opposition of the military government. The Tamizuddin Case In 1953, the Governor-General had dismissed a cabinet that enjoyed the confidence of the legislature (called the Constituent Assembly); in 1954, the Governor-General dissolved the legislature when it sought to curb his powers. During Governor-General Ghulam Mohammad’s dismissal of the Constituent Assembly, the power of the executive arguably won over the legislature, and received validation from Chief Justice Munir and the top court of the land. This was the infamous Tamizuddin case, so called after Maulvi Tamizuddin, the Speaker of the Constituent Assembly, moved to oppose Governor-General Ghulam Muhammad. Ghulam Muhammad responded by disbanding the Constituent Assembly altogether. Some commenters (e.g., Hamid Khan, 2009) conclude that in the struggle for power, the judiciary under Justice Munir gave in to pressure from the executive, rather than upholding a constitutional process. Munir’s own defense was that the High Court’s opinion had a legal basis: the Governor-General was part of the legislature in the sense that his assent was needed for a law to be passed; consequently, his withholding of assent invalidated that law. This somewhat tortured reasoning, although an arguable point, did not effectively take the spirit of the constitution into account, which was that a single individual with the coercive apparatus of the state at his disposal was displacing an assembly that had been working diligently for years.

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The Usif Patel Case According to the Federal Court’s ruling on the Usif Patel case, the GovernorGeneral did not have the power to use ordinances to make provisions to the Constitution (Hamid Khan, 2009: 85). When the Governor-General dissolved the Constituent Assembly, and then appealed the High Court’s “writ of mandamus” which prevented the government from interfering with the Assembly. The case went to the Federal Court on appeal, and that court decided in the Federation of Pakistan vs. Maulvi Tamizuddin Khan case that the Governor-General’s assent was required for all legislation, whether ordinary or constitutional. The consequence was that the country’s “entire constitutional machinery, which had been introduced since the demise of the Quaid, became illegal as a result of this decision” (Hamoodur Rehman Commission, Chapter 3, Section 33, p. 35). The Governor-General tried to retrospectively validate some measures by the emergency powers ordinance, but in the Usif Patel case, the Federal Court ruled that the Governor-General could pass legislative measures by ordinance (in the absence of the Federal Assembly), but could not do the same for constitutional measures, as these were exclusively the jurisdiction of the Constituent Assembly. The court was ordered to an advisory role, at which point it invoked the doctrine of necessity, and advised the Governor to constitute another Assembly. The Zia Regime and the Judicial Judgment against ZA Bhutto The High Court judgment against ZA Bhutto on the charge of criminal conspiracy to murder against was four to three, with the four Punjabi judges supporting and the three judges from other provinces dissenting. The ethnic split suggests that judges were responding to their provincial constituencies, rather than simply applying the law. Other troubling facets of the trial were that it continued despite ZA Bhutto’s absence, and that one judge retired during the proceeding while another was incapacitated by illness (Hamid Khan, 2005: 337). A common speculation was that if all nine judges had been allowed to sit on the bench, the verdict would have been five to four against conviction (Hamid Khan, 2005: 338). In other words, the process itself was heavily manipulated to produce the outcome favored by the military regime. Hamid Khan excoriates the judiciary for their weakness, finding it “shocking the way the judiciary fell into the lap and ultimately the trap of the martial law government and accepted various assignment given to them without demur” (Hamid Khan, 2005: 342). Most of the judiciary took oaths under the President’s order of July 7, 1977; the oath included alterations, and omitted the entire sentence reading “[that] I will preserve, protect, and defend Constitution of the Islamic Republic of Pakistan” (Hamid Khan, 2005: 342). The judges also sat with brigadiers on tribunals

Introduction

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for disqualification of politicians, a manifest demonstration of partnership between the military and the judiciary and their working in cohort” (Hamid Khan, 2005: 343). The martial regime of Zia-ul-Haq amended the Constitution in such a way that the Supreme Court chief justice Yakub Ali was forced into retirement (he had accepted a habeas corpus petition from ZA Bhutto, presumably angering the military). Having accepted the change, the new Supreme Court could no longer argue that the “law maker had no power to make the law” (Hamid Khan, 2005: 326). The predicament was spelled out in a judgment of Justice Qaiser Khan in Begum Nusrat Bhutto’s case (The Nusrat Bhutto petition argued that Zia as Chief of Army Staff had no authority under the 1973 Constitution to impose martial law [Hamid Khan, 2005: 327]): If we hold then that on the basis of legality the legal order was no order, then this Court would be signing its own death warrant for then there could be no government at all. For argument sake, if the Judges do not rely on the new norms then what norms are available for them to proceed with? In a revolutionary situation like the present one, they have either to quit or to accept the new norms. (quoted in Hamid Khan, 2005: 326)

In determining what to consider de jure and what to consider de facto, the above quote suggests the political survival of the court to be a critical factor. If the legal reasoning leads to a position where the court itself is found illegitimate, then that legal reasoning cannot be pursued. Once “instituted” the court then proceeded along a path that continued to legitimate the process that had constituted it, even though that process would have been seen as illegal by the same court in other circumstances. This illustrates the problem of setting up a formal process as legitimate in questionable and contested circumstances. Justice Qaiser Khan also noted that the Supreme Court derived jurisdiction from the laws (Continuance in Force) Order and had to accept and enforce the law of a “de facto” government in the time being (Hamid Khan, 2005: 330)—another iteration of the de facto/ de jure issues that bedevil Pakistan’s political development. One argument in the case was that the COAS had not been a usurper, but had rather ousted the usurper who had rigged elections (Hamid Khan, 2005: 327). Bhutto’s statement chided the federation’s argument for relying on Hans Kelsen’s theory of the legitimacy of revolutionary law. The chief justice’s judgment referred to the six previous periods of martial law in Pakistan since independence. The judgment argued that Kelsen’s theory was irrelevant since this was a temporary and limited breach of legality. The judgment went on to declare that the Chief Martial Law Administrator, having “validly assumed power by means of an extra constitutional step, […] was entitled to perform all acts within the scope of the law of necessity,” including any act

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that could have been made under the 1973 Constitution, including the power to amend it, as well as all acts which advance the good of the people (summarized in Hamid Khan, 2005: 329). It appears that the court potentially validates most of what military government chooses to do, while trying to set some limits, in an effort to remain an acknowledged actor. The court did note its expectation that the CMLA would redeem the pledge to hold elections, which can be considered his mandate from the people of Pakistan, and notes A. K. Brohi’s assertion that the elections could be held two months after the process of accountability of holders of high office is completed (which in turn could take six months, in Brohi’s estimation), meaning about eight months in total. The obvious question was who would hold Zia accountable. In a concurring judgment, Justice Muhammad Afzal Cheema argued that the doctrine of necessity was not a Western but an Islamic concept, and cited verses of the Quran. Constitutionalism and Judicial Activism This summary highlights again the tenuous distinction between the de jure and the de facto in Pakistan. The judiciary was brought in to “referee” between the parliamentary and extra-parliamentary forces and arbiter the legitimacy of the certain constitutional and administrative measures (Waseem, 2006: 104). First, the civil bureaucracy and then the military led the attempts to engineer the constitution (Waseem, 2006: 104). Parliamentarians sought to preserve the constitutional framework’s integrity (Waseem, 2006: 104). The 1954 cases involving the Governor-General’s role (e.g., as a legislative force) and his ability to dismiss the Constituent Assembly provide examples (Waseem, 2006: 105–106). Even while judging military coups and suspensions of the Constitution, the courts relied on a constitutionalist lens. “Constitutionalism remained a consistent, latent, all-pervasive and morally superior source of legitimacy under both civil and, paradoxically, military dispensations” (Waseem, 2006: 106). Waseem (2006) suggests that there is a repeated pattern of the unelected institutions trying to govern the country, and that the judiciary plays a role in both enabling and constraining this. The fact that the judiciary remained a player suggests not only “constitutionalism,” but also the basis for a later, more assertive judiciary. The judiciary often kept political opposition bound by the letter of the law, and “safeguarded and vigorously defended its own right to overview official actions of a controversial nature,” thus protecting its position as interpreter of the law (Waseem, 2006: 109–110). By elevating constitutionalism over parliamentary sovereignty, the judiciary supported the executive (Waseem, 2006: 109). The judiciary “arrogated to itself the function of judicial review” (Waseem, 2006: 109). After Zia’s death, demonstrating

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“what is often called judicial activism, courts demonstrated a new sensitivity to popular and unfettered mandate as the ultimate source of legitimacy for government formation” (Waseem, 2006: 113). This assertiveness was particularly notable in the showdown between Chief Justice Iftikhar Chaudhry and General/President Pervez Musharraf over the Provisional Constitutional Order; a lawyers’ movement emerged, and eventually Musharraf resigned. Constitutional stability foundered in Pakistan partly because transgressions to constitutional process were themselves validated. In other words, one could break the process, and thereby undermine constitutional arrangements, without sanction, and even with retrospective approval. This made the bounds and constraints imposed by the formal constitution more flexible and less meaningful, and consequently reduced their relevance in the calculations by strategic politicians about their options and associated consequences. In other words, politicians realized that the bounds imposed by the law could be manipulated, and this gave them broader latitude for action. This applied in particular to the political executive, particularly the executive who emerged from the civil (and later, the military, bureaucracy) and was therefore outside the formal legislative framework; eventually, elected leaders would also try to manipulate the constitution, or rewrite it entirely. The more assertive judiciary in the later Zia regime, and the defiance of the Musharraf regime by some figures from the judiciary and bar associations, may signal additional constraints on the attempts by powerful executives to manipulate or substantially reinterpret the formal Constitution. Many would say that the dominant chief executive has been the primary constitutional problem in Pakistan—in effect, the formal constitutional constraints on the chief executive appear to not work well. This is most dramatically the case when the chief executive emerges from an unelected process—typically a military coup. Those aspiring to legislative autonomy and provincial autonomy are often allies in the battle against the chief executive’s power. The efforts to curtail the chief executive’s power are consonant with a polycentric impulse, although the story is made more complex because of “devolution” stratagems employed by military regimes (described in Chapter 5). To Proceed An implicit polycentric constitutional orientation has recurred in different forms throughout Pakistan’s political history. It has been more apparent after times of serious upheaval, crisis, and what is in effect constitutional deliberation and national soul-searching. I refer in depth to two such episodes: the Ahrar agitation of the 1950s (and the follow-up inquiry known as the Munir Report) and the 1970 elections aftermath that culminated in the secession of East Pakistan (and the follow-up inquiry known as the

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Hamoodur Rehman Commission Report). In addition, I draw on various secondary accounts, as well as my own conversations with officials and polity members in Pakistan. Yet the polycentric impulse has been repeatedly overwhelmed by the monocentric presumptions of planners and impulses of elite establishment actors, as well as by appeals to a monolithic image of Islam. These figures posture repeatedly as saviors of the country, when arguably the continuing crisis the polity faces, and the exacerbating tensions I described in Political Survival in Pakistan (Malik, 2011) are made worse by the monocentric/ monolithic style. Pakistan has been a “national security state” featuring “crisis politics” according to Newberg (1995). In the short term, the viability of polycentric design remains questionable, although there are some significant recent shifts in that direction (with the recent political platform appeals that presume the superiority of devolution, as well as a recent constitutional amendment favoring decentralization). Overstepping central state managers, often, but not solely, military leaders have caused enormous disruption to constitutional process in Pakistan. Any constitutional framework must consider this or risk irrelevance. At the same time, constitutional understandings that manage (or at least locate a productive mode in which to address) problems of interunit rivalries as well as the question of how Islam fits into politics are also vital. For development, the country would be well served by an effective, lasting alternative coalition that prevents an overstepping executive from “winning” or surviving in office, and a metanorm that accommodates diverse collective choice arenas while retaining an Islamic identity. While these elements are interrelated, it is the second that forms the primary focus of this book. I do not to aim to survey approaches to political Islam, or to governance in weak states, or all of Pakistani history, social geography, or modes of constitutional invocation of Islam. Rather, my effort is to consider the potentials and challenges to polycentric metanorms and arrangements that may arise in a weak state context by referring to the Pakistani case. Given the “constitutional level of analysis” in the Bloomington school tradition, this effort emphasizes not the legalistic formal documentary side of things, but rather the informal assumptions and practical clashes that have affected the lived constitution. The following chapters discuss theoretical considerations regarding polycentric governance in weak state contexts (Chapter 2), rationales for polycentric metanorms in Islamic tradition (Chapter 3), polycentric metanorms in relation to Islam in Pakistan’s self-conception (Chapter 4), an exploration of diverse collective choice units in Pakistan as they relate to potentials for polycentric order, and reflections on the viability of the polycentric metanorm in Pakistan and other polities where Islamic self-conceptions are salient.

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NOTES 1. The word “freely” with respect to minorities was included in the original Objectives Resolution and then left out of a later constitutional document; the 18th Amendment to the Constitution reinserted the word “freely” so that the constitutional wording reads as reproduced in the quote above (Pakistani.org, 2012). 2. According to Bueno de Mesquita, et al., political survival requires a winning coalition, defined as “the subgroup of the selectorate who maintain incumbents in office and in exchange receive special privileges”; the “selectorate” is “the set of people with a say in choosing leaders and with a prospect of gaining access to special privileges doled out by leaders” (Bueno de Mesquita et al., 2003: xi). 3. Elinor Ostrom won the 2009 Nobel Memorial Prize in Economic Sciences for her contributions; Vincent and Elinor Ostrom were thorough intellectual partners. 4. What precisely constitutes the “public” sphere, and how it relates to the private realm, is a recurring question in cross-cultural comparisons of modernities. 5. In Vincent Ostrom’s reading, generalizing the conditions of polycentric order to all patterns of order in society has a lineage to the “single most important assertion about to the organizing principle to be found in The Federalist”: James Madison’s suggestion that “this policy of supplying by opposite and rival interests, the defects of better motives, might be traced through the whole system of human affairs, private as well as public” (V. Ostrom, 1994: 224; emphasis is Ostrom’s). 6. Adopting the name change to Pakistan might not have been the legal right of the assemblies (Farooq Hassan, 2006), but was done anyway.

Chapter 2

Polycentric Governance in a Weak State

This chapter surveys some literature on polycentric governance and related concepts, and extends existing theory to cover the diverse collective action arenas often found in postcolonial states, particularly those with low political capacity in their central jurisdictions. Formal sovereign recognition accorded to the state often implies that the central authorities have the ability to allocate and reallocate resource and enforce their writ over their domestic societies. The empirical reality in many such contexts is that unauthorized informal institutions and collective choice arrangements provide governance, sometimes beneficially, and sometimes in exploitative and destructive ways. Some developing country managers are preoccupied with state-building projects that presume monocentric governance to be the appropriate goal. Yet polycentric arrangements have the potential to offer better constitutional fit with the empirical realities of institutional diversity. The literature surveyed here suggests several promising ways to think of such arrangements, and especially about a critical challenge for achieving well-functioning polycentric order in a developing country context: how the interrelation between diverse collective choice units and institutions can be improved in the sense of protecting the integrity and autonomy of diverse arrangements for selfgovernance while discouraging destructive conflict escalation. This selective survey sets the theoretical background for the role of polycentric metanorms—meta-constitutional values of accepting and accommodating institutional diversity that shape the makeup and interrelations that constitute collective choice arrangements. In upcoming chapters, I examine the cultural bases for supporting polycentric metanorms in contemporary Islamic polities, in the elite national self-conception and early constitutional deliberations of Pakistan, and through a partial survey of exemplars of collective choice arrangements in the Pakistani context. 51

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Under monocentric assumptions, national government authorities are seen as the ones with primary responsibility for development policy-making, and a monopoly on collective decision-making. Central authorities in postcolonial states often have too little capacity to implement major policy goals from the top down, yet enough capacity to disrupt self-organized and indigenous collective choice arrangements that may be serving beneficial functions. State-led development often fails because it sees the national government as modern and the “only possible way to achieve and understand human order,” because it does not accept the possibility that people can craft plural systems of rule, and because it identifies democracy solely with the capacities of parliamentary government and representative assemblies (Sabetti, 2004: 14; cited in Shivakumar, 2005: 6). State-led development runs the risk of undermining local problem-solving capacities, and with it, the effective provision of public goods. The problem can be compounded with foreign aid; as Gibson et al. (2005) point out, outsider resources can also skew political development away from indigenous problem-solving institutions, undermining the possibility of sustainable solutions. Moreover, the erosion of indigenous institutions can become a loss of social capital, undermining future social well-being. From the perspective of polycentric development in such developing country contexts, a major theme is the challenge of recognizing, authorizing, and supporting collective choice arrangements in ways that produce beneficial outcomes. Some overlapping concepts, such as multilevel governance, federalism, and fragmentation, also represent efforts to develop a vocabulary for exploring and assessing governance outside the “unitary state” presumption. A key constitutional challenge in the postcolonial and weak state context has to do with centers of decision-making that are common knowledge but not formally recognized or authorized, and as a result at times substantially impede or come into polity-threatening conflict with the official jurisdictions—an area considered in more detail below. A well-functioning polycentric order rests on shared understandings about how collective choice units interrelate. A related problem for considering development potentials is of identifying polycentric metanorms: metaconstitutional mental models from cultural endowments and path-dependent, context-specific interactions that lend themselves to well-functioning polycentric order. The following chapters undertake this by considering the macrocultural context of Islamic tradition as a potential source for polycentric metanorms in contemporary polities with an Islamic self-conception, and through a closer case examination of Pakistan as a case. This chapter explores theoretical and conceptual issues in polycentric polity architecture in developing contexts general, with an emphasis on the issues facing postcolonial states with low political capacity.



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POLYCENTRIC DESIGN In a polycentric order, individuals rely on self-interest understood in terms that take into account the interests and perspectives of the other, and use habits of self-governance to form and reform associations and rules for mutual benefit. These associations interrelate with other associational activity to produce an association of associations that constitute a compound republic. In a strict monocentric ideal-type, the presumption is that a central authority monopolizes collective choice, acting as a unitary sovereign rule-giver. The apex authority can choose to delegate some subsidiary authority to specific offices and covering a particular domain. How a polity is constituted can be summarized in terms of Who, What, Where, How questions. Who gets recognized and authorized as a collective choice unit or institution, and by whom? What forms of activity count or do not count as a self-governed collective choice unit? Where are collective choice units located, and to where does their reach extend? Is the default presumption that all self-organized collective choice units are presumed authorized unless expressly prohibited, the inverse, or some mix of these? How is authorization granted and extended, and how are legitimate institutions validated while others excluded? How is collective choice between collective choice units achieved, and how is this second-order collective choice unit constituted? When must/ must not/ can the central jurisdictional authority or other collective choice units intervene in the activity of another such unit? For unauthorized self-governing collective choice units, what are the transactions costs associated with obtaining recognition and authorization? Collective choice units may be inchoate, fluid, opaque, overlapping, and/ or decentralized; they may also be durable, long-lasting, fixed, transparent, and/or highly differentiated into office-holders with specific roles. Note that some authors use the term institutions to refer to specific rules as well as collective choice units. In this book, I distinguish them as follows. Institutions are rules that constrain and shape social interactions. Institutions can exist at different levels, including the constitutional, collective, and operational levels. Collective choice units are constituted by shared understandings called constitutional-level institutions. The term “unit” is possibly not the best label, as it suggests a unitary monad or a constituted organized body with identifiable differentiated functional roles; an alternative term, “holon,” is too broad for the purposes here. Another possibility is “center of decisionmaking,” used by various Bloomington school scholars. Shivakumar (2005) refers to “problem-solving units.” I prefer “collective choice units” because it does not imply a necessary preexisting problem to be solved, because in real-world contexts it is effectively impossible to specify the “optimal”

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solution, and also because institutional “solutions” themselves create new problems to be solved. The organization of a polity is typically partly explicated in a constitutional document. Proposals for constitutional design must consider constitutional processes in the relevant context, and even then remain aware of a significant, likely gap between proposals and whatever is eventually adopted (Horowitz, 2002). Intimate investigation into a particular context is necessary to understand potentials better. Shivakumar (2005: 5) points out that a national constitution must connect with indigenous institutions or risk becoming a paper constitution rather than a living constitution: “formal constitutions will not foster an institutional basis for security and development unless they resonate with the common habits and understood practices through with individuals in those societies informally solve problems they variously confront” ­(Shivakumar, 2005: 5). Moreover, problems of local knowledge at the central level, as well as motivating central state officials who have other incentives within bureaucracies, make it difficult to come up with workable centralized governance (Shivakumar, 2005: 5). According to Shivakumar (2005), “constitutional governance,” an alternative to state-led governance, finds coherence in institutions in which citizens act as “civic entrepreneurs” within their particular contexts to take the initiative to overcome collective action problems for individual and collective benefit (Shivakumar, 2005: 110). Such entrepreneurs are central to polycentric governance, as they usher in creative, unique solutions to problems of collective action (Shivakumar, 2005: 111). A “jurisdiction” is an authorized collective choice unit. “Jurisdiction” refers to the “spatial domain within which the body has authority to act in relation to a policy domain” (Skelcher, 2004: 92–93). “Spatial domain” or space, in the way I use it in this project, does not refer exclusively to terrain that can be mapped in the Cartesian mode; rather it refers to a locus of social interaction called an “action arena.” Jurisdictions can vary in their internal and external integrity. “External integrity,” also called “boundary integrity,” refers to the extent of autonomy of the spatial and policy domain (Skelcher, 2004: 93). “Relational” or internal integrity refers to the extent of a democratic relationship between the citizenry and the governmental body serving it (Skelcher, 2004: 93). Internal integrity has legitimacy, accountability, and consent dimensions. Legitimacy refers to the “collective civic judgment that such authority overall is being used in the public interest” (Skelcher, 2004: 93). Consent connotes “a measure of deliberative process through which citizens and government explore and reach a judgment on specific choices” (Skelcher, 2004: 93). Accountability involves both the governmental body explaining its authoritative judgments, and the process through which the judgments can be examined and the decision-makers’ mandates renewed or revoked (Skelcher, 2004: 94).



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Federalism and Polycentricity “Federalism” is a widely used term, and has been used in different ways, depending on the author and audience, and overlaps with the term “polycentricity.” In Vincent Ostrom’s work, an important emphasis was the covenantal basis of American federalism (e.g., V. Ostrom, 1997). Foedus, the linguistic root of “federalism,” means “covenant” and a foederal polity was where a covenantal ontology and method supported self-governing associational forms that inter-associated with each other at multiple levels and with potentials for increasing adaptive complexity. Federalism is a type of polycentric order constituted by shared understandings about associational activity within and between associational forms, with the constitutional level, like all other institutional levels, subject to renegotiation and revision based on the artisanship of agents in the polity, including their interactions, learning, negotiations, and changing circumstances. The literature refers to federalism in ways that partly overlap with Vincent Ostrom’s approach, and is partly reviewed below, as a way to connect to the specific issues around polycentric governance in postcolonial states. William Riker’s definition of federalism provides a helpful starting point: A constitution is federal if 1) two levels of government rule the same land and people, 2) each level has at least one area of action in which it is autonomous, and 3) there is some guarantee (even though merely a statement in the constitution) of the autonomy of each government in its own sphere. (Riker, 1964: 11; cited in Bakke and Webbels, 2006: 4)

Riker’s definition is rather minimal, particular in contrast to the Bloomington school’s emphasis on numerous arenas in which collective choice arrangements exist. A fuller definition from a Bloomington school perspective is from Daniel Elazar, to whom federalism “involves the combination of self-rule and shared rule, the efforts of people and polities to maintain a maximum degree of independence while participating with others on a constitutionalized but noncentralized basis to accomplish those tasks that they either seek, or out of necessity find it necessary to undertake together” (Elazar, 1998e: 55). The literature on federalism encompasses diverse polities, as illustrated by efforts to describe different subtypes and the growth in “federalism with adjectives”: “asymmetric, coming-together, demos-constraining, demosenabling, executive, hegemonic, holding together, liberal, market-distorting, market-preserving, mononational, multinational, peace-preserving, plural, proportional, putting-together, reallocative, and symmetric” (Eaton, 2008: 675). In asymmetric federations, “different rules apply to different constituent units of the federation”; in symmetric federations, “all constituent units

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face the same set of rules in their relations with the centre and each other” (Solnick, 2002: 175). Some apply “federal” to what others would term “confederal.” Federalism as a confederation implies a “strictly political affair that involved a permanent league of states in which sovereignty, indivisible by its nature, remained with the constituent units” (Elazar, 1998: xii). Federal polities may be defined as those that include a central government, and governments at other levels, each with formally autonomous jurisdictions. In a multivolume project, Daniel Elazar (1998e) notes eight types of polycentric governance arrangements including Union, Consociation, Federation, Federacy, Condominium, Confederation, League, and Inter-Jurisdictional Functional Authorities. What Elazar terms “confederal arrangements” can range from “full-fledged confederations to little more than very limited-purpose associations of states” based on region and function, varying in importance, scope, membership, duration, and enforcement, but generally of limited purpose and feature overlapping relationships (Elazar, 1998e: 6). Philippe Schmitter (1996) has used the terms “consortio” and “condominio” in the European context (Hooghe and Marks, 2003: 234). According to Schmitter, condominio refers to “dispersed overlapping domains” having “incongruent memberships” that “act autonomously to solve common problems and produce different public goods” (Hooghe and Marks, 2003: 238, describing Schmitter, 1996: 136). John Ruggie (1993: 149) suggests that there is something in common with medieval rule with its “patchwork of incomplete and overlapping rights” (Hooghe and Marks, 2003: 234). The Holy Roman Empire was a medieval confederal arrangement (distinct from an ancient confederal arrangement). It included diverse groups such as estates, guilds, and religious minorities, which were organized on a non-territorial basis; the regimes of constituent units could be absolute monarchies (such as dukedoms), oligarchy-ruled independent cities, and others (although Prussia’s growing power gave it a dominant role in the Holy Roman Empire) (Elazar, 1998e: 47). The brief above survey notes some of the prominent labels used in the literature of federalism. Below, I describe a key distinction between types of jurisdictions in the study of multilevel governance. The section below provides a terminology of jurisdictional types that works well with developed and relatively well-ordered and stable polities. This leads to the bulk of this chapter, which addresses other types of collective choice units prevalent in developing country contexts. Type I and Type II Jurisdictions Hooghe and Marks (2003) offer a valuable typology of jurisdictions, which are formally recognized and authorized domains for collective choice



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decision-making. The classic image of a federation depicts the levels of governance as a nested arrangement akin to a set of Russian dolls; the outer dolls, when removed, reveal inner dolls, and so forth. In Hooghe and Marks’ useful categorization, these form “Type I” collective choice units1: they are relatively fixed, and stable over a long term; their constituents have barriers to exit. Type I collective choice units have general-purpose jurisdictions, nonintersecting memberships, jurisdictions at a limited number of levels, and system-wide architecture. “Type II” collective choice units have task-specific jurisdictions, intersecting memberships, no limit to the number of jurisdictional levels, and flexible design (Hooghe and Marks, 2003: Table 2, p. 236). In contrast with Type I, Type II collective choice units are more transient, more specific to a particular service or governance-aspect, and often not as territorially bounded. While some view multilevel government as an alternative to hierarchical government, others see it as nested in formal institutions (Hooghe and Marks, 2003: 234).2 Type I institutions are durable, have nonintersecting memberships, and can be regional, local, or national, or communal as in consociational polities (Hooghe and Marks, 2002: 237); they represent the “extension of Westphalian jurisdiction into the domestic arena” (Caporaso, 2000; cited in Hooghe and Marks, 2002: 237). Type I jurisdictions are “sticky,” typically outliving the conditions in which they emerged, and reform (“creating, abolishing, or radically adjusting new jurisdictions,” usually reallocating policy functions) is “costly and unusual” (Hooghe and Marks, 2003: 237). Tiebout (1956) argued that multiple, competing local jurisdictions make for more efficient public service provision (Hooghe and Marks, 2003: 235). “Economic federalism” can be summarized as “preferring the most decentralized structure of government capable of internalizing all economic externalities, subject to the constitutional constraint that the central government policies be decided by an elected or appointed ‘central planner’” (Inman and Rubinfeld (1997: 45); quoted in Wallack and Srinivasan (2006: 8)). Advantages of dividing taxation and expenditure policies across governmental levels local governments may have an “information advantage in meeting local needs”; more variety in provided public goods helps satisfy local preferences; mobility “ensures matching of citizens with jurisdictions that provide the public goods they prefer”; and local governments can serve as policy laboratories (Wallack and Srinivasan, 2006: 8). There are benefits and costs to larger and smaller jurisdictions: Large-scale (i.e., territorially extensive) jurisdictions have the virtue of exploiting economies of scale in the provision of public goods, internalizing policy externalities, allowing for more efficient taxation, facilitating more efficient redistribution, and enlarging the territorial scope of security and market

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exchange. Large jurisdictions are bad when they impose a single policy on diverse ecological systems or territorially heterogeneous populations. (Hooghe and Marks, 2003: 235)

Jurisdictions also differ in terms of exit and voice—exit is relatively difficult in Type I jurisdictions, while voice is easier and more likely; exit is easier in Type II. Membership can be territorial or communal (as in consociational polities). Communal memberships can cut across territorial jurisdictions, and thus overlap in a tangible sense. Type I and Type II entities can relate to each other in ways that are: 1. Parallel—the body is an alternative to existing governmental organizations; 2. Complementary—the body is independent but undertakes activities that add to those carried out by government; 3. Incorporated—the body is a formal extension of government; 4. Oppositional—the body challenges government and advocates for particular interests (Skelcher, 2004: 101). FOCJ (functional, overlapping, competitive jurisdictions) appear and disappear according to demand; as people exit, the tax base shrinks, eventually extinguishing a particular jurisdiction. The burden of mobility and change is on FOCJ rather than on “citizens,” according to Ostrom, Tiebout, and Warren (1961). The notion of a public economy of jurisdictions can be traced to Tiebout (1956) and the argument that “mobility of citizens across multiple competing jurisdictions provides a functional equivalent of market competition” (Hooghe and Marks, 2003: 238). March and Olsen’s (1989) “logic of appropriateness” applies more to Type I governance systems than it does to Type II (Skelcher, 2004: 102). Type 1 tends to be less flexible; Type II governance systems aim to resolve policy problems for which Type I institutions are not sufficiently flexible (Skelcher, 2004: 102). Below, I survey literature that describes the context of many postcolonial states, and touches on the relations between officially authorized (Type I and Type II jurisdiction types) and unauthorized institutional arrangements (what I term Type III, described in more detail below), and the approaches and potential challenges of accommodating institutional and collective choice unit diversity in a way that supports a well-functioning polycentric order.

POLYCENTRIC DESIGN IN A WEAK STATE, HETEROGENEOUS SOCIETY CONTEXT To many engaged with questions of development, the term “design” suggests blueprint thinking, which is the realm of experts that claim epistemological



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privilege over contextual knowledge, and is closely associated with monocentricity. Polycentric order cannot be fully specified by definition, because information about contexts and preferences and choices is dispersed, and because the order is co-constituted by different actors and their choices. Polycentric architecture is dynamic, and includes the combination of self-governance in many collective choice units and between those units, involving an ongoing constitutional-level negotiation, affirmation, or erosion. Order has an emergent aspect in polycentricity. In many postcolonial contexts, the “sovereign” state and its central governing authorities coexist uneasily with diverse and often unacknowledged collective choice units, what I have termed Type III units to extend the Hooghe and Marks (2003) typology described above. Implications of Colonial Legacy Postcolonial (and postcommunist) states faced a dual challenge: establishing both their external sovereignty and their internal sovereignty. These experiences, termed “transitional state-building” by Steven Solnick (2002), represent situations distinct from the evolutionary state-building referred to by Tilly (1990) or Spruyt (1994). Central governments face an acute challenge after transition: “newly constituted central governments must simultaneously consolidate their power and establish the domestic and international legitimacy of the new states” (Solnick, 2002: 173). Postcolonial states often inherited an organization skewed toward colonial power interests. Postcolonial states typically copied aspects of the imperial mother country or another country’s domestic constitutional model in their own political charters. Importing and emulating an outside form often meant that long-standing cultural traditions were ignored or sidestepped. The presumption that legally defined offices would function similarly to their original European context was often mistaken, because it left out the unwritten contextual elements, practices, and understandings that structured the rules-in-use in combination with the formal rules. The act of constitutional choice surrounding the central state jurisdiction, representing provisional responses to context-specific problems, was largely not captured in the legal constitutional documents adopted. Another representation of this problem is that postcolonial states imported the form of constitutions from their former imperialists, but not the principles underlying those constitutions. Informal collective action institutions that had been in place for long periods were displaced in favor of new experts, legislators, and bureaucrats. Moreover, an imported political discourse was used, which may have undermined the shared meaning and expectations on which prior collective action institutions were based. Consequently, the postcolonial states did not develop the institutions that made those constitutions work in a particular way in their former imperial masters (developed over long, locally adaptive experimentation specific to European social-ecological contexts).

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In the postcolonial society, legislatures and other mechanisms that were supposed to work on paper instead only worked to promote the further centralized control of the state, often failing as problem-solving institutions and as apparatuses for creating and implementing policy (Shivakumar, 2003: 13). In some cases, imposing outside institutions degraded indigenous selfgovernance capabilities (Shivakumar, 2003: 4, citing Kimenyi, 2001: 102). Colonialism required a local cadre to provide an apparatus of support: the colonial state was almost always manned by a skeleton crew of colonial officials and needed reinforcement by a cadre of native auxiliaries. This was to be an indigenous class that was either partially, or almost completely acculturated to the ways of the colonial power. (Le Vine, 2008: 159)

While this observation is drawn from Le Vine’s expertise in the African context, it has parallels elsewhere. The Indian Civil Service was remarkable in its ability to recruit a class of Indians that were models of “efficiency” and “probity” while serving the British; they received privileges including education and elite comportment, and at their apex, assimilation into British society (although such assimilation was typically predicated on an assumed racially subordinate status). Patronage positions allow one to distribute contracts to oneself and one’s clients, and profit accordingly. Local satraps governed in exploitative and sometimes brutal ways in exchange for their loyalty to colonial overlords (Le Vine, 2008). Colonial regimes featured a patronage system; in Senegal, this extended to Sufi brotherhoods, and in other places to traditional chiefs and tribal leaders. New regimes continued such arrangements, such as the Senghor, Diouf, and Wade regimes in Senegal after independence in 1960, each of which offered privileges and special dispensations to the Mourides, a Sufi brotherhood (Le Vine, 2008: 160). Informal political sectors may have been vigorous before independence. According to Clapham (2004), those precolonial societies that were the farthest along in state formation were the most likely to enjoy success as a state after colonialism. “Juridical” versus “Empirical” Jurisdictions and the Challenge of Low Political Capacity Jackson and Rosberg (1982) distinguish between juridical and empirical states (which, in the terms of this book, correspond to the central state jurisdiction and the population under its nominal authority). A juridical state is a “legal fiction,” created with most of the structures that international law requires, and, like corporations, having governments (or boards of directors) and the ability to make contracts with “analogous entities.” An empirical



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state is a nation-state, that is, a state backed by a national citizenry that offers a coherent community of support and identity. In juridical states, ongoing experiments have attempted to build nations. Most African states were postWorld War II creations, coming into being through “UN midwifery” or gaining independence from former colonial powers, sometimes peacefully and in other cases through a national liberation struggle (Le Vine, 2008: 156). These states were typically juridical rather than empirical. The failure to produce empirical statehood has been disastrous, as seen in civil wars and political disintegration. Traditionally, studies of federalism have not often confronted “the issue of a state that is in imminent danger of collapse, nor of a state whose unifying links are mainly an inherited structure of bureaucracy and the interests of the small ruling group that controls it” (Mawhood, 1984: 529). Ziblatt (2006) suggests that in developing countries, the low political capacity of subnational units—their ability to raise taxes, regulate behavior, and govern society—makes federalism unlikely to succeed. Relying on diverse indigenous knowledge is predicated on a particular type of government capacity—apparatuses to recognize which local arrangements were working, and which were not, and to intervene accordingly. The constitutional subtlety and complexity of arrangements, particularly asymmetric center-unit relations, may simply be beyond the capacity of exceptionally weak states; for example, the lack of resources may simply negate much of Ethiopia’s complex constitution (Ghai, 2002: 160, citing Paul (2000)). One important distinction is between state weakness in terms of capacity (the ability to allocate and reallocate society’s resources for policy purposes) and in terms of the central state’s authority with respect to the regional and local units. It may be that a state is high in capacity but weak in terms of the center’s relationship with the units. Weak states are distinct from failing and collapsed states (Rotberg, 2004). Very low state capacity is associated with state failure. As government is unable to provide basic services or even to collect sufficient revenues to pay its own officials, “territories are left unadministered, laws are unobserved, and taxes go uncollected”; the state is unable “to project power throughout its territory or to undertake activities that improve the welfare of the majority of its population” (Van de Walle, 2004: 95). How polycentric governance arrangements will affect administration and governance remains a question to be considered contextually. To the extent that low capacity is associated with institutional weakness and fragility, a low-capacity state will be unable to alter outcomes and behaviors with constitutional changes. If polycentric governance arrangements require greater capacity than monocentric arrangements (as suggested by Ghai (2002)), then a low-capacity state is unlikely to generate improved governance outcomes. The possibility that a weak state may fail and collapse, however, remains a key concern in any attempt to build a polycentric order in a low-capacity

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state context. One question is whether polycentricity will invite weakness in internal or external state security. This will differ according to context, but as a general principle, must be addressed. Where polycentric governance threatens the polity’s survival, it will be difficult to adopt—although it is important to recognize that the incentives shaping the behavior of particular political leaders and office-holders are not coterminous with state survival. For example, the Czechoslovakian leadership, because of its other preferences, was willing to allow the polity’s split in response to demands (Bunce, 2004: 422–423). Also, it may be that a state does not survive because it fails to adopt more polycentric governance. If one mode of state failure occurs when “ethnic, racial, ideological, or regional divisions result in the breakdown of central authority and the emergence of widespread violence” (Van De Walle, 2004: 94), then accommodating those divisions early on through polycentric governance arrangements might help prevent state failure. An Underlying Legitimacy Problem In Bunce’s helpful phrasing, the “state” is defined as “a political entity combining two monopolies: a spatial monopoly and a monopoly over the exercise of legitimate coercion” (Bunce, 2004: 419). In Tilly’s formulation (1985), states have a comparative advantage in violence; ultimately, they win contests for control and final authority. They can be the equivalent of mafia dons masquerading under costumes that proclaim legitimacy. What happens when state-like mechanisms are supplied without formal approval or recognition by the “state”? One label for these is “de facto quasi-states” (Malik, 2011). If a state can be said to truly rest on “law,” then it makes sense to distinguish “state” from “non-state.” Otherwise, the observer is trapped in a hermeneutic double-bind of claims and counterclaims to legitimacy. Yet this may be a recurrent feature of polities with low domestic legitimacy. Labels of criminality and extralegality bring these questions to the fore. Are local “parallel power structures” or unrecognized collective choice units only distinct from official jurisdictions by virtue of having been proscribed by a central government or other official authority? Where does legitimacy come from, how is it accorded, and when and how might it be withdrawn? There may be a pro-formal bias buried in institutional analysis if collective choice arrangements are only identified and investigated when and where they come into conflict with the de jure environment. At a certain point, there is no appropriate presumption about which is more “legitimate”; secessionist ethnonationalisms in particular are associated with polarization on the question of legitimacy. The polycentric approach may recognize preexisting, effective institutional arrangements, and allow these to operate. But who decides what is “working,” and according to what criteria? Such



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assessments have associated normative judgments. This presents an uncomfortable position for those who are normatively opposed to imperialism yet seek input into governance and development. One safeguard against becoming imperialistic is to seek out meaningful avenues for local participation in decision-making. In specifying internal communities and jurisdictions, government authority’s recognition can help decide who counts as a community, what rules and leadership structures are “legal,” and where their appropriate boundaries should lie. All of that is problematic because the central state apparatus’ action itself transforms that local community, elevating some with resources while denying the same to others. There is something “imperial” about it in the sense of imperialism as decision-making located outside the immediate participants’ locale. There is an interplay between the formal and informal, and part of well-functioning polycentric metanorms is to shape the constitutional development of self-governing collective units. Selecting some areas as “natural” jurisdictions is problematic because it papers over the disputed and constructed nature of identities, and then alters political opportunities and constraints. One key lesson from colonialism is that the terms and labels and boundaries that were ascribed, however distant they may have been from the lived experience of people at the time, ended up becoming institutional space for new types of contestation. The labels changed the rules, giving some ascendancy and making others invisible, and in so doing, affected who got what when and how. These political outcomes emerged from a powerful manipulation of symbols through rhetoric. Appointing, legislating, and anointing “Law” is a political act, and will run into resistance from those who disagree with official choices. Whether legal recognition is just or good depends on the preferences of communities, the type of recognition, and the context (Ghai, 2002: 144). One well-established label connoting a legitimate political community is “nation,” defined as “a shared understanding among a large group of people that they have a common cultural identity that distinguishes them from other groups,” emerging from “shared historical experiences that have produced common cultural symbols and common institutions,” but not necessarily requiring shared language, religion, or ethnicity (Bunce, 2004: 420). Nationalism is manifested when “political leaders claiming to speak on behalf of the nation” demand “expanded sovereignty” for the national community, which may “involve calling for greater autonomy of the nation within an existing state,” or secession (Bunce, 2004: 421). The political recognition of nationhood can be challenging for a state because it raises the specter of secessionism; on the other hand, not recognizing a subgroup that has strong nationalist proclivities risks further aggravating the situation into a potentially nationalist struggle against the status quo.

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A key problem in separating the “formal” from the “informal” is that there may be competition between institutional forms for legitimacy. What happens if two forms appear “formal” in that both are codified, routinized, and rationalized by an appropriately “modern” justification? It is at the margins that the somewhat arbitrary nature of this definition is apparent; moreover, the prevailing definitions and interpretations may be widely used or not depending on the power of those who support a particular definition. Power may define knowledge, as a Foucauldian analysis may suggest. Yet the power of the definition’s supporters may only reflect the power the definition has in order to gain such supporters. It remains unclear whether ideas or power have causal primacy. An International Relations Analogy An international system metaphor can be helpful in assessing domestic politics in a weak state. Challengers (or potential challengers) can simultaneously participate in the logic of appropriateness and the logic of consequences, creating political parties to run for office while also constructing de facto quasi-state entities (Malik, 2011). Which one prevails and predominates is open to question given the instability and low legitimacy of domestic political arrangements. Consequently, outcomes can vary substantially. If there are enough successful instances of overcoming collective action problems between collective choice units, a generation might arise that accepts membership in the existing polity and does not really consider secession to be a serious option on their menu of choices. In a well-functioning polycentric order, that generation will have higher trust and reciprocity supporting a civic orientation of “self-interest rightly understood,” making the polity as a whole relatively resilient. If, on the other hand, there are repeated betrayals of trust, and unmet expectations of appropriate behavior, the “society” might break apart in a self-help logic of spiraling security dilemmas. Security dilemmas may be worse in domestic anarchy than international anarchy, because individuals are more vulnerable than states; under severe state failure, social norms may no longer be able to buffer intergroup relations (Kasfir, 2004: 61) Further, the role metanorms play in shaping the interrelation of collective choice units in weak state polities is from the constructivist approach to international relations theory. According to the “constructivist” school of international relations theory, the identities and interests of states together with trajectory and history of states’ interactions help determine what anarchy means, how actors and states are constituted, and what options and opportunities they experience. This contrasts with “realist” approaches that saw in anarchy only the war of all against all described by Thomas Hobbes.



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According to Wendt (1992), a prominent constructivist, the realist depiction is under-specified and misses the roles played by identity and ideas. Citizens’ character and habits are integral to the polity’s success. However, these are not immutably fixed by religion, but historically produced and reproduced. There are reasons to be skeptical about the impact of constitutional documents and formal rules in a weak state; for example, the instability of different Pakistani constitutions and their susceptibility to manipulation or suspension suggest that formal rules alone are not reliable guides to actual mechanisms (Malik, 2011). Yet in a fashion somewhat comparable to international law, a primitive source of governance in interstate anarchy, actors routinely and regularly refer to the law, and make legal claims. A broader understanding of constitution (including both the formal and informal rules that are functional) as well as consideration of a mindset toward institutional diversity, a polycentric metanorm—is helpful both in describing the realities of governance as well as exploring potentials for improvement. How meanings, intersubjective understandings, interests, and identities are constituted affects governance in a weak state scenario. There may be a substantial central state authority (although it does not successfully monopolize the means of coercion), and other actors that are quasi-states, somewhat akin to an international relations system with a powerful hegemonic state. In inquiring into the self-understanding of actors, one approach is to posit preexisting identities that contribute to the mental models of units, as well as to consider that the constitutive process itself can define and redefine the constituent units’ identities and their interests with respect to themselves and to each other. TYPE III COLLECTIVE CHOICE UNITS In developed countries such as industrialized, stable democracies, governance usually stems from formal institutions and collective choice units that have recognized, often legally assigned roles and responsibilities. There are other informal institutions and collective choice units that structure social relationships and provide rules, but these are often marginal, or complementary. By and large, multiple centers of governance work in delineated areas that are integrated into an overarching formal and widely accepted framework. In contrast, in many developing countries, formal rules and legal decrees are not effectively enforced, sometimes becoming little more than words on paper. Officially unauthorized informal institutions and collective choice units provide rules and determine who gets what when and how, at times directly contradicting laws and formal rules. In practice, this means that understanding the relationship between governance and public well-being requires different

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analytic tools and perspectives when looking at developing countries. In weak states where the rule of law is not well established, Migdal (1988) suggested the possibility that “strong society” might shape governance and social outcomes. Migdal’s emphasis was on “local strongmen,” powerful actors outside the formal government. In this project, I consider a broader category that includes all collective choice units and institutions, a subset of which may be organizations or associational forms dominated by “strongmen.” I add to the typology distinguishing between Type I and Type II jurisdictions (Hooghe and Marks, 2003; described above), to include another category: Type III, which are unauthorized institutions and associated collective choice units that may provide some governance functions comparable to Type I and Type II jurisdictions. In developing country contexts with low capacity among official jurisdictions, a Type III categorization is especially appropriate. Type III governance institutions may serve comprehensive or specific functions. Their functioning may complement or compete with the official governance structures. In places, their operation may dominate to an extent that they appear to be near-states, or quasi-states. In a vacuum of formal governance—in very weak or failing states, for example—Type III institutions and collective choice units could gain in significance and salience, challenging the legitimacy of official jurisdictions with alternative claims of legitimacy. Understanding how a developing country may improve governance outcomes through institutional design requires examining Type III institutions through a “constitutional level of analysis.” This requires assessing not only the formal process by which constitutional documents are framed, but also a context-sensitive understanding of the actual rules-in-use according to which collective decision-making proceeds. A key question for constitutional design is whether and how the constitutional terms can accommodate and integrate informal institutions such that they serve good governance outcomes and contribute to productive rather than destructive social relations. In other words, the question is whether some Type III institutions can and should be turned into Type I or Type II through constitutional shifts. “Deductive theorists” assess multilevel governance in terms of demand and supply for jurisdictions, and “challenge the efficiency of monopolistic, territorially fixed, and nested governments, and propose instead flexible jurisdictions conceived as “voluntary coalitions for financing, choosing, and enjoying excludable public goods”” (Casella and Weingast, 1995: 15; cited in Hooghe and Marks, 2003). One question is how that works in situations where there are violent, coercive parainstitutional forms. One possibility is that predatory actors create the conditions that lead their services to be “demanded” (protection rackets, for example). Alternatively, in an insecure environment, it is arguable that security service providers will be demanded,



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and that a rudimentary social compact underlies their operation. At a certain point, these service providers start to resemble embryonic states, or what I have elsewhere called “de facto quasi-states” (Malik, 2011). Quasi-states could be distinguished by their coercive power, and ability to resist outside coercive authority. This does not necessarily mean that they are purely competitive with the central state jurisdiction. One analytic possibility is that formal rules have third-party enforcement, usually by an official jurisdiction. Where officially unauthorized institutional governance with third-party enforcement takes place, that is potentially an instance of “quasi-state” activity. De facto quasi-states exercise this third-party enforcement in practice without official authorization; they become de jure state affiliates when they obtain authorization for this enforcement through official, formal central or other jurisdiction recognition and support. In a weak state, there are multiple, overlapping, de facto collective choice units. What is de jure and what is de facto become polluted by competing legitimacy claims and low internal integrity of the overall polity. Converting de facto governance entities into de jure governance may enhance transparency and accountability, but potentially reduce some benefits to some actors. The transactions costs and strategic calculus of concerned actors and parties are important factors in shaping whether, when, and how such conversions take place. Trust Networks and Type III Collective Choice Units “Trust networks,” forms of organization that incorporate relations of trust, potentially lower the transactions costs of overcoming collective action problems among members, providing shared expectations of behavior between co-participants in the network, and thus provide a potent possible base for membership in a Type III collective choice unit. Trust networks offer ways for people to protect things they value—livelihood, property, information, for example, and can be useful for many things, including finding marriage partners, getting employment, making migrations, taking political risks, and obtaining credit (Tilly, 2005: 14). Shunning and shaming can be powerful weapons against malfeasance; if one is engaged in a trust network, distrust is “more salient and consequential” (Tilly, 2005: 15). Where trust networks provide protection and welfare, they overlap with the concept of “quasi-state.” How central state authorities interact with trust networks shapes aspects of the public politics of a society. Patronage systems are one type of negotiated connection between official jurisdictional authorities and Type III associational forms; another possibility is that the networks obtain some form of brokered autonomy with the official authorities; yet other possibilities are

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that the networks are suppressed by the official jurisdictions, or become explicitly integrated into the official jurisdictional membership. While Tilly’s helpful exploration describes these possibilities, the major overlap with this book is the emphasis on how different collective choice units may be constituted and co-constituted, and how collective choice units can be based within a trust network’s membership, with cross-cutting membership, or be competing or interacting with others in the same or other trust networks. While the uncertainty-reduction trust networks represent can facilitate collective action, the focus here is not on the networks, but on the diverse types of interrelation between official jurisdictions, formal institutions, Type III units, and informal institutions. Patronage and Compatibilizing Type III Units Patronage politics is often considered the bane of development. The typical story told about patronage is that traditional forms of authority developed over time, and often became adept at resisting challenges. These traditional political sectors may have had a lineage of centuries or generations before formal independence. Some of these political economic institutions were further empowered when they were connected to colonial-era patronage. Managers of new states discovered that the associations in the informal sector—but I call unofficial collective choice units—were often stronger than the state (Le Vine, 2008: 162). One prevalent form of “compatibilization” is through patron-client relations, although the special privileges that result often pose obstacles for inclusive development and the supply of majority goods. Patrons give clients privileged positions and rent-seeking opportunities in return for loyalty and other unspecified support. Clients might be family members, business partners, co-religionists, or others in a loyalty and obligation relation with the patron. In some cases, the state is entirely defined by patronage: Where patronage politics is the organising principle of the state, the distinction between formal and informal sectors blurs or completely disappears: in effect, the latter swallows the former and the state, as in Saudi Arabia, becomes a family affair. (Le Vine, 2008: 158)

In other words, it is possible that the state simply absorbs or is absorbed by the informal sector. This merger of sorts makes many newer states appear less like legitimate law-giving entities and more like vehicles for organized protection rackets. Patronage and corruption typically go hand-in-hand (another facet that is all-too-apparent in Pakistan). Law is applied selectively, favoring those with powerful connections.



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“Natural states” use of patronage as institutional solutions to the problem of violence North, Wallis, and Weingast (2009) provide a framework for understanding development challenges that intersects in significant ways with what is termed the problem of “Type III” collective choice units here, specifically those with violence potentials, including those that I have referred to as “quasi-states.” North et al. distinguish “natural states,” the prevalent form of settled political organization in history, from open-access orders, a relatively new form in the last 150 years. Natural states limit violence by political manipulation of the economy to create privileged interests, a process that hinders development, whereas modern societies create open access to economic and political organizations, fostering competition, and are more developed. In a context where the central state authorities do not have a monopoly on the means of coercion, other actors can threaten to disrupt the efforts of state managers to pursue their goals and serve their clients. One prevalent solution is to grant special privileges to those with violence potentials, resulting in most natural states being “organized through patron-client networks in which groups of nonmilitary elite members—traders, producers, priests, educators, and others—are allied with militarily potent members of their network” (North et al., 2009: 153). This compromises the impersonality needed for the rule of law. Instead of officially provided services, benefits, and opportunities being accessible to all polity members in keeping with need, they are diverted to the few with the ability to be sufficient nuisance or disruption to state managers. In other words, a thorny issue is that a certain type of compatibilization produces developmentally inferior outcomes by some measures, although it potentially forestalls damaging violence or other social ills. Thus, patronage can be an institutional solution, and a difficult, often insurmountable matter for constitutional design is the negotiation process and the underlying information needed to determine what choice is superior. In such situations, the constitutional process involves the threat of accident and force as the major component of the effort, being rather than the “reflection and design” emphasized by the authors of the Federalist papers. The problem takes on greater magnitude when noting that it is extremely difficult and virtually impossible to describe the optimal institutional design by calculating a complete analysis of expected performance of all possible rule changes in even a relatively focused empirical case because the combination of possibilities is simply too vast (E. Ostrom, 2005: 143). Most development analysts will prefer equal citizen access to opportunity and benefits, including the authorized ability to self-organize, found in open-access orders. The context of polities with dispersed means of violence

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should leave analysts with some respect for the possible solutions existing institutions represent, including some patronage ties, and more care in considering ways to improve outcomes. It does not imply absolute, unqualified acceptance of patron-client relations. Rather, a fuller understanding of the routes to which the impersonality, the rule of law, perpetually lived artificial “persons” (i.e., corporate bodies, usually chartered), and other components is needed. “Holding-together” Federalism Traditionally, the literature on federalism has assumed developed states and focused on design for better administration and governance (Mawhood, 1984). In developing countries, a number of federal states have failed and become unitary. The focus on design does consider how federal constitutions might survive under different circumstances, but they nevertheless tend to import developed-country assumptions. In the postcolonial context, the strength of state boundaries, which get solidified over time, may have to do with the length of colonial rule (Mawhood, 1984: 530). Other realities include highly mobilized ethnic groups, often a colonial legacy. Nigeria, Malaysia, and India are federations that have survived. Federations were a response to regional, ethnic, and linguistic differences within sovereign states (Mawhood, 1984: 529). Federalisms in developing countries may have resulted from aspirations for independence and political survival among founders, rather than the desire for better governance, as suggested in this summary of the emergence of postcolonial federal states out of the British Empire: The new ruling elites needed to establish their control over governmental units inherited from the colonial period—and in some instances federalism was the best means of persuading the British, in particular, to agree to early independence. Arguments that demonstrated the greater economic advantage, influence in external affairs, or administrative efficiency of a large federation were strictly secondary. (Watts, 1966: 42–52; cited in Mawhood, 1984: 529)

The earlier literature on federalism presumes voluntary choice of constituent units (Mawhood, 1984); Riker’s definition of federalism presumed that independent units come together and bargain with each other to form a united polity. Yet this image, related to the American experience, may be exceptional. Stepan (2004) calls the American model an example of “comingtogether federalism” and differentiates it from “holding-together federalism,” in which a powerful center willingly endorses a federal polity in order to prevent destabilizing ethnonationalist violence and to hold the polity together. India provides an example of “holding-together” federalism. B. R. Ambedkar,



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chairman of the committee that drafted and presented the Indian constitution to the Constituent Assembly, asserted that the document was designed to hold India together. Moreover, Ambedkar stated that the federation was an act of the Constituent Assembly rather than an agreement between sovereigns. By the time the draft was presented in 1948, the sometimes forced integration of 568 princely states had already occurred, obviating the bargaining between sovereigns that characterizes Riker’s view of coming-together federalism (Stepan, 2004: 444). One important possibility is to extend Stepan’s analysis to the conditions that may support polycentric arrangements in developing countries, suggesting that a possible “holding-together” impulse on the part of elites might support a shift to a more polycentric order. The holding-together impulse may be driven by the recognition that developmental needs are well served by authorizing collective choice arrangements, and making credible commitments to their autonomy. Yet more is needed: the polycentric metanorm will be more viable the greater its consonance with existing indigenous patterns. Unit Power in Relation to the Central Jurisdiction Pressures originating in the quest for political survival can pose challenges to polycentric design. Where the polity is weak and its very boundaries open to negotiation or quick-grab changes, political survival incorporates debates on the size and scope of jurisdictions (Malik, 2011). Constitutional-level analysis cannot ignore these ongoing renegotiations. Constitutional choices create winners and losers. For some actors, polycentric design is an empowering boon; for others, an infringement or restriction on their authority. The ability of the central jurisdiction to overwhelm or subjugate other collective choice units may rest on the ability of those other units to organize for collective action and constrain the central authority. Steven Solnick (2002) offers a simplified model for outcomes in postcolonial and postcommunist state-building (along a continuum from unitary state to federation to confederation to disintegration) in terms of center-unit bargaining shaped by information, and whether or not units overcome a collective action problem. Solnick hypothesizes that in polities where “the centre is able to bargain bilaterally with provinces and can exploit information asymmetries, the centre will be able to coopt pivotal provinces while exploiting the divisions among provinces,” the expected result is “an asymmetric system with a predatory centre” (Solnick, 2002: 172). Where units are able to engage in collective bargaining, the expectation is more concessions from the center without as much in return from the units (Solnick, 2002: 172). In Solnick’s model, whether and how units bargain collectively with the center depends on their heterogeneity (Solnick, 2002: 177). Whether and how

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units bargain collectively determines “whether the centre can exploit rivalries among provinces to recentralize power during the transition” (Solnick, 2002: 177). Each provincial governor tries to maximize provincial autonomy, while the state-building president tries to minimize it. Areas of jurisdictional control might include tax collection, personnel appointment, judicial autonomy, specific policy areas, or others (Solnick, 2002: 177). Negotiating Boundaries Constitutional choice does not necessarily reflect elite goals, despite strategic goal-oriented behavior. Federalism may provide ethnonationalist separatists with opportunities to mobilize resources, and thereby undermine the polity’s integrity. According to Bunce (2004), elites can push for secession even when there is no strong nationalist feeling. The breakup of Czechoslovakia provides a possible example. As Bunce puts it, it is a mistake to infer preferences from outcomes in struggles over the boundaries of the state. For example, neither Czechs nor Slovaks wanted to end Czechoslovakia and, indeed, neither did the Slovak leadership. Rather, this was a threat used to gain concessions from the leader of the Czech lands—who then decided, for reasons of power and his economic policy agenda, to accede to the request (Bunce, 2004: 422–423).

A border shift was used as a bargaining chip, and resulted in a change that may not have been actually sought for the vocal proponents. Nationalist leaders “may presume to speak for the nation, but they may not be leading a social movement embracing a nationalist agenda […] the leaders themselves may not be nationalists, but, rather, use nationalism as a mechanism for defeating their rivals and maintaining their political power” (Bunce, 2004: 421). This instrumentalist understanding treats nationalism as “epiphenomenal” rather than foundational in the sense that its appropriation is an elite choice driven by political incumbents’ and challengers’ personal political survival and ascendancy considerations. It also aligns with what Nasr (2001b) has referred to in the case of Pakistan as a “negotiable state,” and what Malik (2011) categorized as “de jure quasi-state strategies” among challengers pursuing political survival: the effort to bargain for a new jurisdiction when existing opportunities for political ascendancy were not promising. Ethnicity, Collective Action, and Collective Choice Units Hale (2008) contrasts two approaches to understanding ethnicity. One treats it as epiphenomenal, a surface distraction from the true underlying material interests that drive behavior. Another approach treats ethnicity as absolutely



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nonmaterial, arguing that too much passion and emotion goes into ethnic identification for it to be purely a material interest. A more dynamic, conflictcentered school describes ethnic identity as emerging from conflict escalation processes; there are suggestions that in tight Indian elections, for example, communal groups are polarized to better mobilize votes for politicians. Explanations of ethnic violence that presume a preformed ethnic identity miss the possibility that “conflict itself is identity-shaping and may have been created for that reason by ethnic partisans” (Varshney, 2002: 38–39). According to Hale (2008), people tend to self-separate into groups, and ethnicity is simply a useful “uncertainty-reduction device.” Ethnicity may contain intrinsic importance (such as a common language that reduces transactions costs) or “imposed importance” (such as a white employer who only hires whites, making black job-seekers’ learn their own ethnic identity’s salience) (Hale, 2008: 37). Most important, ethnicity offers uncertainty reducing “rules of thumb”: ethnic labels offer quick guidelines for humans with limited cognitive capacity, thus becoming cognitive schemas (Hale, 2008: 37–38). Ethnicity may be the basis for some collective choice units, as the uncertainty-reduction better enables collective action among co-ethnic agents. Accommodating Identity Diversity in a Federal Context An overlapping interest in the literature is on the potential for recognizing and accommodating diversity of social identities, driven partly by the pragmatic recognition on the part of central state authorities that failure to so can spur ethnonationalist resentments and conflict. Along with monocentricity, the modern state has sought homogeneity and self-sufficiency (Elazar, 1998e: 23). Yet the internal plurality of social identities has persisted, and few if any states contain one nation exclusively. Czech scholar Ivo Duchacek noted that in the 1970s, 90 percent of states contained minorities of 15 percent or more of their total population; the remaining 10 percent had large ethnic minorities of their own outside their state borders (Elazar, 1998e: 24). Multiethnic states are an inescapable reality because 1500 nation-states are not feasible (Ghai, 2002: 142). The mismatch between the homogeneity presumed by the nationstate model and the diverse social reality can produce strife; these divisions can also provide the basis for political coalitions that seek to capture the state or break away from the polity. Bikhu Parekh (1997) argues that the modern liberal state presumes cultural homogeneity, becoming “a source of disorder, injustice, and violence when applied to culturally heterogeneous societies” (Ghai, 2002: 142). Frequently, some cultural diversity can be expressed in the private realm, but this is shrinking, as the state’s domain, the public space, continues to

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expand. In some depictions, premodern societies did not see the function of the state as imposing a moral order, and were more willing to embrace cultural diversity and less inclined to impose uniformity, although this view exaggerates both the uniformity of the modern state and the flexibility of the premodern (Ghai, 2002: 142–143). Examples of the flexibility of modern states include consociationalism, the human rights regime that increasingly recognizes group entitlements (Ghai, 2002: 142). Federalism as a strategy for accommodating ethnic and regional diversity has gained more attention, particular as intrastate conflict has grown in comparison to interstate conflicts (Eaton, 2008: 667). This may involve official routes for ethnic representation at the federal center. For example, Adeney (2009) has argued that consociational mechanisms for including ethno-linguistic minorities at the federal center have contributed to reducing ethnonationalist conflict involving Pashtuns in Pakistan. Managing Identity Diversity through Communal Representation Ghai (2002) reviews three devices for managing identity diversity: communal representation, asymmetrical federalism, and cultural autonomy. Communal representation was a recurring element in British colonialism. Separate electorates (introduced in 1906 in British India) were blamed by some Indians for exacerbating Hindu-Muslim tensions. Yet recognizing diversity is not inherently virtuous: the colonial state entrenched diversity and discrimination in a constitutional system; South African apartheid used racial and cultural labels as a basis for oppression (Ghai, 2002: 143–144); “Jewish control over Israel is maintained through various legal institutions and distinctions which discriminate against Arabs or fragment the political community” (Ghai, 2002: 144). Political recognition of diversity has been used as a divide and rule tactic, as well as a basis for systematic injustice. Ghai suggests that “Whether the political recognition of diversity is fair or beneficial depends on the context, the preferences and aspirations of the various communities, and the forms that political recognition takes” (Ghai, 2002: 144). Communal representation was abandoned in most former British colonies, except for Fiji and Cyprus (Ghai, 2002: 145). More recently, separate representation for ethnic groups can be found in Bosnia-Herzegovina, Hungary, Romania, Slovenia, Croatia, and Finland (Ghai, 2002: 145). In India, special representation has been secured for scheduled castes and tribes, and relates to affirmative action for these communities (Ghai, 2002: 147). Other communities in the constituencies designated as “reserved” tend to oppose these designations, as their members are deprived of the right to the seat (Ghai, 2002: 148).



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Managing Identity Diversity through Asymetric Federalism Territorial autonomy allows “groups claiming a distinct identity to exercise direct control over affairs of special concern to them while allowing the larger entity to exercise those powers which cover common interests […] autonomy seems to provide the path to maintaining unity of a kind while conceding claims of self-government” (Ghai, 2002: 155). Classical federalism grants all regions equal powers, but may be insensitive to particular cultural needs. Asymmetrical features can be found in Swiss, Canadian, and more recent multiethnic federations, such as India, Spain, Russia, and Malaysia (Ghai, 2002: 156). A kind of autonomy arrangement where a minority group is in a majority in a particular region and enjoys significant devolved powers there while playing little national role is called a “federacy”; examples include Puerto Rico in the United States, Hong Kong and Macao in China, and Scotland in the UK (Ghai, 2002: 156). “Reserves,” used by European settles in the Americas to isolate and dominate indigenous peoples, have been adopted elsewhere, and include the apartheid policy of Bantustans (Ghai, 2002: 156). Recently, especially in Canada and the Philippines, the historical claims of indigenous peoples have been recognized and the reserves turned into self-governing areas “although the extent to which they can opt out of national laws, which may be necessary for the preservation of their political and cultural practices, is variable” (Ghai, 2002: 156–7). Ethnic federations, unlike the United States and Australia, emphasize diversity of values (Ghai, 2002: 157). Asymmetric federations recognize special needs and capacities, including “indigenous peoples whose traditional culture is central to their way of life, or a minority linguistic group” (Ghai, 2002: 159). China and India are asymmetric: China has four or more types of autonomy, including economic, metropolitan, ethnic, and special administrative regions (Ghai, 2002: 158). India has provinces, special Kashmir arrangements, tribal areas, and union territories, each with a distinct relationship to the center (Ghai, 2002: 158–159). The Russian federation has differing relationships for the 88 units with the center (Ghai, 2002: 159). Asymmetric federalism is administratively and politically difficult to manage, and the problem is not necessarily resolved by symmetrical devolution to all provinces because low-capacity provinces will struggle to carry out their new responsibilities, which they may not have wanted in the first place (Ghai, 2002: 160–161). A governability crisis may result. The result may be that although asymmetry is valued in principle, practical, political, and administrative constraints may limit its adoption, and the key to successful multiethnic autonomy arrangements will likely depend on how asymmetry is negotiated (Ghai, 2002: 162).

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Managing Identity Diversity through Cultural Autonomy A third strategy for political recognition of diversity is “corporate or cultural autonomy” in which “an ethnic group, dispersed geographically, is given forms of collective rights” (Ghai, 2002: 163). Cultural autonomy can ­provide different forms of rights; these are normally positive rights and entitlements, but may be a negative right such as a veto (Ghai, 2002: 163). Empires often featured cultural autonomy, while modern examples include Estonia, ­Hungary, Slovenia, and the Russian federation, in which “countries provide for the establishment of councils for national minorities that assume responsibility for the education and cultural affairs of the minorities (Eide, 1998: 256–9)” (Ghai, 2002: 163). India’s constitutional debates included the matter of a common civil code, to which some Muslims objected. Whether the common code was necessary for national unity, or whether it produced the oppression of minorities and the loss of communal identity, were at issue (Ghai, 2002: 164). The constitution described the common code as a policy objective, “and it is now a wellestablished convention that the shariah will continue to apply to Muslims as long as they desire it” (Ghai, 2002: 164). Israel represents a far-reaching example of regimes of personal laws for each major religion. In addition to civil and military courts, the polity features courts for 14 recognized religious communities, with jurisdiction over marriage and divorce (there is no civil marriage and divorce in Israel) and some private law (Ghai, 2002: 164). The religious courts impact political culture, women’s rights, and intercommunity relations. For most Jews, personal law jurisdiction is within rabbinical courts, while Muslims are subject to shariah courts (Ghai, 2002: 165). The clergy tend to be committed to orthodoxy and are given a privileged position. The religious courts have emphasized group identity over a unifying political culture (Edelman, 1994: 119; cited in Ghai, 2002: 165). Cultural autonomy can provide cohesion to struggling communities and enable their traditions to survive, but can cause what some value systems would see as injustices inside and outside those communities (Ghai, 2002: 168). For example, Muslim women in India “are unable to benefit from the more liberal legal regime that has applied to other Indian women after the reforms of the 1960s” (Ghai, 2002: 165–166). In the 1995 Shah Banu case, the Indian Supreme Court ruled that a divorced Muslim woman was entitled to the higher amount given under the national law rather than the lower sharia-based amount, leading to a backlash among Muslims who felt their communal identity to be threatened. The government responded by legislatively overturning the court’s decision, which in turn sparked a Hindu nationalist backlash (Ghai, 2002: 166). Ghai also references a Canadian case discussed by Kymlicka: “The UN Human Rights Committee has held invalid



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the law which deprived an Indian woman of her land and other community rights if she married an outsider, men who marry outside the community not incurring a similar liability” (Ghai, 2002: 166). From an individual rights perspective, this appears to discriminate on gender, creating the basis for a clash of values. The above discussion applies primarily to accommodations for identity groups, such as Muslims in India or indigenous communities in Canada. Identity groups are not necessarily coterminous with collective choice units, although the two may sometimes overlap. One identity group will likely contain many different collective choice units, and there may be collective choice units with cross-group membership. A further classification of collective choice units is described below. Federal Strategies for Accommodating Ethnic Diversity A major issue in the viability of polities is that most countries have a selfaware ethnic or other cultural minority with the potential to mobilize to press claims on central state authorities, to seek to capture the central state apparatus, or to seek full independence from the central state authority. Genuine nation-states (in which the population of a state identifies with a single nation, and the nation and state are fused) are rare as there are minorities in almost all states (Connor, 1994). A situation in which “a self-conscious minority is concentrated in a specific area of a state’s territory” is termed a “territorial cleavage” (Amoretti, 2004: 2). Territorial cleavages increase the potential for conflict and pose possible challenges to polity integrity; the breakup of the former Yugoslavia is an exemplary case. Core Ethnic Regions Make Ethnofederations Vulnerable to Failure Among federations, an ethnofederation is “a federal state in which at least one constituent territorial governance unit is intentionally associated with a specific ethnic category” (Hale, 2004: 167; cites Roeder). “Breakup” occurs when an ethnofederal state fragments along more than half of its ethnofederal lines (Hale, 2004: 170). Collapse refers to a civil war condition in which regular government institutions are suspended for some time (Hale (2004) suggests at least one year as a guideline), and is an extreme form of state failure. Hale defines a core ethnic region as “a single ethnic federal region that enjoys dramatic superiority in population” (Hale, 2004: 166) and “institutional networks of people and resources that can potentially organize a rival claim to sovereignty and are of sufficient scope to make any such challenge meaningful” (Hale, 2004: 173). In an ethnofederation, one unit constitutes an “ethnic core region,” “if it contains either an outright majority of the

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population or makes up at least 20 percent more of the whole country’s population than does the second largest region” (Hale, 2004: 169). Core ethnic regions can (wittingly or unwittingly) pose a serious threat to the ethnofederation’s health. Hale asserts that ethnofederal states containing a core ethnic region are more likely to collapse, a general finding that appears to have no exceptions: “a preliminary survey of all ethnofederal regimes throughout the world since 1950 reveals that all cases of ethnofederal implosion have involved a core ethnic region and that no ethnofederal state without a core ethnic region has ever collapsed” (Hale, 2001). One prominent example, the USSR, included the Russian republic, a giant region with a Russian majority, which posed a significant difficulty or hurdle when the USSR was challenged as a sovereign entity. As possible reasons for this vulnerability, Hale suggests that core ethnic regions “tend (1) to promote the rise of ‘dual power’ situations that are frequently at the heart of state breakdown and revolution; (2) to reduce the capacity of central governments to credibly commit to the security of ethnic minority regions, and; (3) to facilitate the collective imagining of a core-group nation-state separate from the union state” (Hale, 2004: 166). In contrast, ethnofederal states where a numerically dominant ethnic group is split into several states generate a collective action problem, reducing each of these three dangers. Political entrepreneurs can present quasi-states as entities that are ready for independent status, pointing “to a premade, “embryonic” core nation, complete with borders and state institutions, that can be said not to need the minority regions or that can be said even to be better off without them” (Hale, 2004: 175). Severe Poverty, Scarcity and Vulnerability in Federal Arrangements There are suggestive research findings on federal arrangements for accommodating ethnic diversity in developing countries. Using the Minorities at Risk data set, Bermeo evaluates some general claims about federalism versus unitarism in terms of impact on minority accommodation. She considers two rival explanations—regime stability and wealth—and considers whether these two, rather than federalism, account for better accommodation. Her statistical results suggest that federalism appears to have an independent positive effect even when controlling for regime stability (Bermeo, 2004: 478). Wealth is different: federalism’s effects are most salutary when a country has a per capita income of over 6000 dollars. Federal polities tend to be a little richer (about 3000 dollars per capita on average). If there is an overlap between ethnic identity and material inequality, most would assume that the potential for conflict increases, as there is greater difference between groups, making accommodation more difficult. The record, however, suggests that this is difficult to ascertain in practice (see Bermeo, 2004: 458).



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Nevertheless, the small number of cases makes it problematic to draw extensive conclusions. In the case studies presented in Federalism and Territorial Cleavages (Amoretti and Bermeo, 2004), the least successful examples of cleavage accommodation come from the poorest countries, although federalism still appears to be beneficial overall (Bermeo, 2004: 479). An important additional point is that federalism requires not only institutional forms but also noninstitutional bases and underpinnings, which may be less present in poorer contexts: “The trust and sense of security elites need to make the kind of inclusive covenants that viable federalism requires are rare in conditions of scarcity” (Bermeo, 2004: 480). In other words, countries poor in financial and industrial capital may also be poor in social capital.

INFORMAL INSTITUTIONS Informal institutions are part of the terrain that should be explored to better understand potentials for well-functioning polycentric orders. One motivation for why informal institutions should be carefully considered in constitutional deliberations is from Shivakumar (2003): “Any successful constitution must finally come to terms with the diversity of approaches to problem-solving as exist within the multiplicity of action arenas present and consider how these can be made compatible with each other” (Shivakumar, 2003: 10). This quote includes reference not only to recognize diverse rule-giving institutions, but also potentials for making them function well as problem-solving units with each other—including other such institutions, as well as the overarching state. “Institutional problem-solving” is about how collective action problems are depicted and addressed (Shivakumar, 2003: 5). Both formal and informal institutions reduce uncertainty and promote cooperation and coordination; this is more likely to be achieved when institutions are “reliable—triggering consistently under similar circumstances, recognizable—subject to broad awareness or community of understanding, and non-arbitrary—seemingly dependent on general principles” (Shivakumar, 2003: 5). Policy-makers occupying official jurisdictional positions are well served by considering informal institutions to better grasp the consequences of policy choices. As Stokes (2006: 139) asserts: “Comparativists have tended to conceive of institutions as creating incentives that map straightforwardly onto outcomes. A better way to think about the mapping of formal institutions on outcomes is that their effect is often conditional on informal institutions and rules, and these informal institutions and rules and variables that need to be unpacked empirically […] formal institutions will sometimes not work the way they were meant to unless the appropriate informal rules are in place” (Stokes, 2006: 139). This is because informal institutions provide

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the “grammar-in-use” that shape meaning and interaction in specific communities, and shape how proposed changes might actually become viable (Shivakumar, 2003: 8). What I have described elsewhere as the challenge of constitutional design for thwarting predators (Malik, 2008) is referred to by Shivakumar (2003) in somewhat different language: among “adjacent indigenous problem-solving units,” conditioning rules are needed to describe how groups ought to relate to each other, and this requires addressing “issues of standing, standards, and checks on authority” (Shivakumar, 2003: 12). To my way of thinking, standing refers to which group or indigenous institution is recognized as a genuine group or institution (and raises the critical question of who does the recognizing and how). Standards refer to the thresholds and limit according to which indigenous institutions may operate, particularly where there are overlapping issues. Checks on authority refer to how power is structured within and among institutions, preventing predatory behavior if possible. Defining Informal Institutions The term “informal institution” remains ambiguous and has been applied to diverse phenomena such as “culture, civil society, personal networks, clans and mafias, corruption and clientelism, and bureaucratic and legislative norms” (Helmke and Levitsky, 2006: 4). Conceptual ambiguity carries an analytical cost, making it harder to build theory. To some, “informal institutions” are indistinguishable from culture or tradition, part of the time-tested moral values or norms of a community. Virtually everything people do is rooted in culture, and that is sometimes not recognized because the roots are so deep and related norms have become so profoundly internalized (Al-Naim, 2008: 24–25). Open nonconformity threatens elites, those with authority over society (Al-Naim, 2008: 25). “Individuals construct meanings and values through cultural codes that are shared by particular groups” (Al-Naim, 2008: 22). There are primordial attachments (e.g., language learned at an early age), and instrumentalist ones resulting from calculated choices. Distinguishing “informal institutions” and “culture” is a critical area for further research. Helmke and Levitsky define informal institutions as “socially shared rules, usually unwritten, that are created, communicated, and enforced outside officially sanctioned channels” (Helmke and Levitsky, 2006: 5; italics in original).3 Guillermo O’Donnell adds that “the set of informal rules that constitute and informal institution is common knowledge; that is, each actor knows the rules and knows that everyone else, in the relevant context of interaction, also knows those same rules. As a consequence, there exists the generalized expectation that “everyone” will follow the rules and that, in case of failure to do so, some kind of punishment or ill will follow, even



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though […] no predesignated agent may exist for applying such sanction” (O’Donnell, 2006: 286). Even if the rules are not transparent, relevant actors understand them. Informal institutions are unwritten, and generally less transparent, than written and formal institutions. Informal institutions are not simply expectations, although they may generate expectations (O’Donnell, 2006: 288). Informal institutions are known as “common knowledge.” Empirically recognizing and determining what counts as “common knowledge” may be problematic, because the answer can lie in the eye of the beholder. O’Donnell suggests a three minimal characteristics that informal institutions/rules must have: (1) a sanction for when they are violated or ignored (even if the sanctioning agent is unspecified), (2) the institution is common knowledge (what I might call an intersubjective understanding) in the relevant context, and (3) the institution specifies an action of particular actors in the relevant context (O’Donnell, 2006: 288). The specified action may be a nonaction; that is an actor is supposed to not do something (e.g., a policeman who turns a blind eye to an illegal act). Informal Institutions in Relation to Formal Institutions With respect to formal institutions, informal institutions can be complementary and accommodating, or competing and substitutive (O’Donnell, 2006). Many analysts are drawn to the challenge posed by competing and substitutive informal institutions, because they may undermine “democracy.” But seen in this broader way, informal institutions can be of valuable support for formal institutions. In Helmke and Levitsky’s (2004: 728) typology, informal institutions can have convergent or divergent outcomes (y axis) with formal institutions and make them more or less effective (x axis), as depicted in the Figure 2.1. Quadrants 1, 2, 3, and 4 describe informal institutions that are complementary (convergent, more effective), substitutive (convergent, less effective), accommodating (divergent, more effective), and competing (divergent, less effective). The literature includes reference to functional (they are problemsolving) and dysfunctional (they are problem-creating) informal institutions, and Helmke and Levitsky’s typology offers a helpful additional way of describing how informal and formal institutions relate. Clientelism, corruption, and patrimonial systems may undermine democratic processes, markets, and state institutions, but a more complete picture shows that there can also be informal institutions which can be substitutive and reinforcing. When formal institutions function, we assume that this is because formal rules drive behavior, but this may not be the case (Helmke and Levitsky, 2004: 734). Some scholars link the effectiveness of the US constitution to complementary informal institutions.

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Figure 2.1  A typology of informal institutions in relation to formal institutions (from Helmke and Levitsky, 2004: 728).

Helmke and Levitsky suggest a helpful definitional schema for distinguishing formal or informal institutions (Helmke and Levitsky, 2006b). The political rules of the game are structured along two dimensions: strength (enforcement) and formality (Helmke and Levitsky, 2006b: 274): “Formal rules may be routinely enforced or complied with, but they may also be widely ignored. And the rules that actors enforce or comply with may be formal or informal. Instead of taking for granted that formal rules are both effective and predominant, then, it is more accurate to treat formal institutional predominance as one of several possible institutional scenarios” (Helmke and Levitsky, 2006b: 274–275). Formal rules may be strong while informal ones are weak or the other way around; it is also possible that both formal and informal rules are weak. Some have characterized state-enforced rules as formal institutions and civil society (including religious, ethnic, kinship, and civic associations) as informal institutions (Helmke and Levitsky cite Boussard, 2000; Manor, 2001; L. Tsai, 2002). Others, such as J. Knight (1992), have distinguished self-enforcing informal norms from state or third-party-enforced formal rules. These distinctions are not satisfactory to Helmke and Levitsky because informal rules may be unconnected to a community’s larger values; because many informal rules are located within state institutions (such as corruption patterns); and because informal rules may be enforced by the state or by mafias. Informal institutions can intervene in both the Type I and the Type II jurisdictions, but for analytic clarity, it helps to group them separately. In Type I informality, a strong enough ethnonationalist de facto quasi-state may one



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day become a de jure quasi-state, that is obtain status as a jurisdiction. In Type II informality, strong overlapping quasi-jurisdictions may seek some other forms of state recognition, such as exemptions or different rule-making possibilities for minorities (such as communal non-territorial jurisdictions that are functionally specific, e.g., customary law). Institutions can vary by their level of formality and enforcement (a typology from Helmke and Levitsky, 2006), as represented in Table 2.1. Some analyses tend to prioritize formal institutions in assessing how social relationships are structured. This typology does not automatically presume that formal institutions are more prevalent or significant than informal institutions. Identifying Informal Institutions One way to think about both formal and informal rules is that they are not simply behavioral regularities; “rules must have both normativity (in the limited sense that they state a standard of conduct) and factity (in the sense that they are actually enforced)” (which is not to say that people actually approve of the rule; they may find it abhorrent, but comply due to the expected sanctions for rule-breaking) (Brinks, 2006: 204). Rules can permit, require, or prohibit certain behavior, and feature an “or else” enforcement component (Crawford and Ostrom, 1995). In contrast to formal institutions, which are usually articulated in official promulgations, informal institutions are typically more opaque, particularly to outsiders. Among various general methods for identifying informal institutions are the following. One approach is to generate hypotheses about “behavioral patterns that are consistent only with the existence of a particular informal institution, and then test empirically for the existence of those patterns” (Helmke and Levitsky, 2006: 25). Empirical evidence can then be based on statistical or other analysis. Another method is to use ethnography to identify actors’ expectations. A third method is to locate enforcement mechanisms used to perpetuate informal institutions. Violations of informal rules must produce punishments (external sanctions). Unlike formal institutions’ sanctions for rule-breakers, the sanctions for breaking informal rules are probably more subtle, illegal, and hidden, including “social disapproval (hostile remarks, gossip, ostracism), to the loss of employment, to the use of hired thugs and other means of Table 2.1  A typology of institutions Low enforcement Formal Informal

Nonfunctioning formal instits Nonfunctional informal instits

High enforcement Functional formal instits Functional informal instits

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extrajudicial violence” (Helmke and Levitsky, 2006: 26). An informal institution that is deeply embedded rarely sees rule violations, and so enforcement is not often needed. Consequently, its operation might be difficult to observe. Nevertheless, there may be exemplary cases from which the broader rule can be inferred. “Permissive” rules are informal institutions that allow but do not require certain behavior. The permitted behavior can be avoided without fear of punishment; however, “punishment is meted out to those who seek to enforce the formal rules that prohibit the behavior in question (i.e., “whistleblowers”)” (Helmke and Levitsky, 2006: 27). Daniel Brinks’ (2006) chapter contribution on the permissive institution of extrajudicial killings by police shows that those state agents (e.g., prosecutors, judges) who seek to enforce laws against extrajudicial killings themselves face death threats. Brinks (2006: 203–207) offers a valuable question set for identifying informal institutions: 1. “Do we observe outcomes in accordance with the hypothesized informal rule (i.e., regularities that cannot be explained by reference to the formal rules)?” 2. “Do people describe certain behavior in terms of an enforceable rule of conduct?” 3. “Are deviations from the hypothesized informal rule punished by the relevant agents of social control?” 4. “Is the behavior at issue observed and not punished by official enforcement instances?” 5. “Is there evidence that relevant actors know the rule, anticipate the consequences of a transgression, and guide their conduct accordingly?” (Brinks, 2006: 203–207). Brinks (2006: 203) suggests that informal institutions are those “not enacted in accordance with the second-order rules that govern the creation of formal rules in a given organizational context.” In other words, informal institutions are partly defined by how they are created. Connecting Brinks’ definition to the typology used in this book, those institutions constituting Type III collective choice units would be considered informal, as would those emerging from Type III collective choice units. Compatibilizing Informal Justice Institutions in the Latin American Context One helpful contribution in understanding how Type III units can be recognized by official authorities and become authorized arrangements has



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been addressed by Van Cott (2006: 267) with regard to informal justice institutions in the Latin American context. Informal justice institutions may be valuable precisely because of their informality. Their social weight derives “from social values and meanings that have great authority, as well as the flexibility and dynamism afforded by their (mostly) uncodified status ­(Sieder 1998, 107)” (Van Cott, 2006: 267). Van Cott’s literature survey identifies several studies that find that “the autonomy and authority of informal justice institutions enable them to serve as spaces of empowerment” (Van Cott: 2006: 273). These have been called “semi-autonomous circles of power” or “semi-autonomous social fields” (Moore, 1986), or “subaltern counter-publics” (Nader, 1980); others describe “indigenous law as spaces of autonomy from which subaltern groups can engage in an equitable intercultural dialogue with the state and the dominant culture” (Van Cott, 2006: 273), referring to (Assies, 2001: 93) and (Fajardo, 1999: 41). In the language of this present study, these definitions overlap with the Type III category. Van Cott’s exploration of indigenous law and associated conflicts is particularly helpful (Van Cott, 2006: 268). Van Cott notes that all the five Andean constitutions of Bolivia, Colombia, Ecuador, Peru, and Venezuela “call for the creation of a law to “compatibilize” or “coordinate” the potentially competing jurisdictions of state and indigenous law” (Van Cott, 2006: 267). In practice, this is difficult because of conflicts related to process, norms, and sanctions. Indigenous law is flexible, dynamic, and situationspecific rather than providing “a justice ‘product’ that is consistent over time and space” as is the case with Western systems, which are based on written rules and precedent and seek consistent administration of justice across society. In many cases, there is a gap between the central state authority’s focus on individual rights and indigenous emphasis on collective rights. There are also conflicts over sanctions (punishments) imposed by indigenous justice organizations when they diverge from constitutional or legal human rights guarantees (or in some cases, from international human rights’ charters which indigenous groups have themselves invoked as an argument for recognizing and empowering the indigenous in the first place) (Van Cott, 2006: 268). Ultimately, questions regarding the basic rights of the individual compared to the local collectivity are an important constitutional-level question that each polity negotiates for itself as reflecting the polity’s of its own normative preferences for agents devising constitutional arrangements and the political processes and interactions in which agents engage. In the case of Colombia indigenous justice institutions, the country’s Constitutional Court adopted Will Kymlicka’s position on multiculturalism, which describes,

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the responsibility of liberal states with respect to violations of individual rights by illiberal national minorities: they must not impose liberal values on groups that do not share those values, but must endeavor instead to negotiate peacefully with illiberal national minorities, as they would with foreign countries, except in cases of severe violations of human rights, such as slavery or genocide. (Van Cott, 2006: 271)

This arrangement gets at that issue of autonomy and sovereign jurisdiction for other groups within one state’s borders, and how that might be defined. There is a possible resonance with the tribal areas in Pakistan, which have retained autonomy somewhat comparable to the British colonial administrative approach, and, despite complaints from human rights activists, avoided substantial action on human rights violations (from the standpoint of international human rights declarations as well as constitutional guarantees in other parts of Pakistan). Another method Van Cott notes is to create “community justices of the peace, who work with indigenous authorities while representing the state” (Van Cott, 2006: 271). Guatemala and Peru have seen efforts in this vein. This is not exactly like the colonial use of a “political agent” in tribal areas during the British imperial period in South Asia, but there is a similarity, in that a deployed state representative works as an interface with the local structure. One difference is that the “community justice” presumably emerges from within the community, while the Political Agent is selected through public service commissions from anywhere in the state. Van Cott notes that because community justices in Guatemala have not been selected by the local community, and because they are not an “organic” part of Mayan culture, they may lack legitimacy; nevertheless, there are important improvements in administrative access and in cultural sensitivity as a result (Van Cott, 2006: 272). De Facto and De Jure Property Rights The interrelation of de facto and de jure property rights offers a helpful lens by which to understand the interrelation of authorized and unauthorized institutions, and the possible implications for development. “Property rights” may be best considered not in a binary existing or nonexisting sense, but as bundles of norms and expectations that vary from context to context. In their work on property rights regimes and coastal fisheries, Schlager and Elinor Ostrom (1999) suggest that property rights may be enforced by a government, or originate among resource users themselves. The government-enforced rights are de jure in that they receive “lawful recognition by formal, legal instrumentalities” (Schlager and Ostrom, 1999: 93). Those who hold de jure rights “can presume that if their rights were challenged in an administrative



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or judicial setting, their rights would most likely be sustained” (Schlager and Ostrom, 1999: 93). De facto property rights originate among resource users, who cooperate to define and enforce rights among themselves; as long as these are not recognized by government authorities, they are de facto (Schlager and E. Ostrom, 1999: 93). The word “cooperate” seems to give a veneer of voluntarism on the part of resource users; there are examples of property rights that are de facto but are coercively imposed by mafia-like entities, such as quasi-state actors in Pakistan (Malik, 2011). It is possible that a “conglomeration of de jure and de facto property rights may exist which overlap, complement, or even conflict with one another” (Schlager and E. Ostrom, 1999: 93). De facto property rights arrangements may have high legitimacy within their community settings: In many situations where local fishers possess de jure authorized user or claimant rights, field researchers have found de facto proprietor arrangements that are commonly understood, followed, and perceived as legitimate within the local community. (Cordell and McKean, 1987; Berkes, 1986, 1989; Davis, 1984; Acheson, 1975) (Schlager and E. Ostrom, 1999: 93)

This suggests that official development policy, including steps to compatibilization, must carefully consider the function of diverse property rights arrangements, or risk unintended consequences. There are other arguments about the developmental value of informal economic sectors and entrepreneurs in those contexts, as described below. Informal Economic Arrangements and Development The formal economy was often seen as the sole developmental path, while the informal economy was depicted in negative terms as criminal or premodern. Challenging this were those who viewed the informal economy as a positive contributor to development. Under predatory states with their widespread government corruption and incompetence, the informal sector presents an effective alternative to officially recognized transactions (McGinnis, 1999: 21). Informal mechanisms for signaling and decision-making are important under uncertainty. These may be reputational. Where social distance is at a minimum (as in kinship relations), there is typically the severest constraint. Transactions can be about “moral interests” as well as “material interests.” In a study of Peru’s informal economy, Hernando de Soto (1990) suggests that “redistributive combines” (small distributional coalitions) are well-positioned to create and take advantage of the official or legal state apparatus. A policy and service-provision vacuum appears over most of

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society, and the majority’s needs are not served. In such contexts, new service-providing institutions may emerge that compare favorably with the state. They provide housing and municipal services, such as transportation, to most of the population, and by de Soto’s measures, at a cheaper rate than the state. The so-called “market economy” is in fact a “mercantilist” economy that advantages certain groups with legal license and creates hurdles for others. The barriers to entry into business are significant: an attempt to start a business produced ten bribe requests, and many additional bureaucratic requirements that added up to costly delays and labor. De Soto argues that the real heroes in Peru’s story are the informal entrepreneurs and service providers, and the legal environment only gets in the way of productive exchange in society. Such informal entrepreneurs and the informal institutions governing their exchange relationships fit into the Type III category. The entrepreneurs of the informal economy are dynamic contributors to the economy who would benefit from different treatment by government authorities, presumably through less predation in the form of extortion or bribery, and fewer administrative hurdles and other transactions costs in becoming officially recognized legal, formal activities, although the entrepreneurs and the official jurisdictions agents would have a strategic calculus of whether they stood to obtain a net gain more from such authorization. There is evidence that tenure rights allow the development of more systematic services and more habitable communities in squatter settlements (Neuwirth, 2005). A credible commitment to safeguarding some property rights for informal economic agents, in this perspective, has potential for improving development outcomes, and would be a type of “compatibilization.” METANORMS FOR POLYCENTRIC DESIGN Metanorms are shared understandings about the design of constitutions, particularly with respect to how collective choice units relate to each other. Appropriate metanorms associated with a polycentric approach may support improved governance outcomes for societies rich in informal institutions. In effect, such metanorms provide a critical part of the shared understandings that allow diverse collective choice units to coexist, with mutual understandings of domains of autonomy. Even when collective choice units sometimes compete or conflict with each other, polycentric metanorms help reduce the possibility of conflict escalation between units to the point of severe negative consequences for the polity and its development. Such metanorms shape the growth trajectories of collective choice units also. This suggestion is made by Shivakumar (2003):



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Given that indigenous institutions are locally-focused, constitutional systems based on polycentric principles have a key role in interlinking overlapping problem-solving communities. Given, also, that institutional evolution is not necessarily an optimizing process, constitutional rules also have a key role in expressing meta-norms or values conjectured to shape the evolution of indigenous institutions. Such rules can help generate beneficial patterns of order through guiding the “spontaneous” problem-solving activities of individuals adapting within indigenous institutions so constrained. (Shivakumar, 2003: 18)

Importantly, indigenous institutions are not necessarily in the best position to address contemporary collective action problems. However, they provide material and knowledge that should be drawn upon, and effective institutional responses to collective action problems should be locally focused (Shivakumar, 2003: 18). Formal laws can encourage or discourage local self-governance activities. The official process of recognition may distort indigenous and selforganized arrangements as entrepreneurs respond to the perceived political opportunity. The policy of recognizing, authorizing, and incorporating indigenous institutions may have the perverse consequence of undermining or distorting the self-governing development of those institutions. The dangers mean that careful awareness of local institutional arrangements is important in situations where an official authority is looking at policy issues such as resource sustainability. Beyond recognition, the authorities external to local self-governing bodies can play important functions such as supporting low-cost conflict adjudication when conflicts arise with other units, providing expert information relevant to local resources such as groundwater, and generally developing the authority to govern at multiple levels. Identifying and building on the right “metanorms” at the constitutional level will shape the evolution of indigenous institutions in a beneficial direction (a view that works well if one presumes at least some universal public goods, rather than a profound ontological and epistemological divergence on all such goods). In considering how diverse collective choice institutions might productively coexist, and what their boundaries might be, a constitutional-level discussion is appropriate. The constitutional level of analysis is about macrolevel thinking of collective choice arenas and what might foster understandings of diverse collective choice arrangements in a vast and weak country, divided by ethnicity and sect. Getting at that requires thinking beyond the specifics of a particular constitution into the realm of a metanorm. In the following chapter, I elaborate a metanorm rooted in Islamic tradition that is closely compatible with polycentric governance.

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NOTES 1. Hooghe and Marks (2003) do not use the label “collective choice units”; instead, they simply refer to these as “institutions,” which overlaps with but does not precisely fit with the specific Bloomington school definition. For the sake of clarity and consistency, I have preferred to use collective choice units, understanding that these are constituted by and cocreators of a variety of institutions. 2. Type I jurisdictions may have a non-territorial basis for organization, such as the communal basis in consociational polities. Specific examples include the clan system in Somalia, communal self-governance in the Ottoman Empire, and religious self-governance in India (Hooghe and Marks, 2003: 137, footnote 7). 3. Helmke and Levitsky (2006) focus on informal “political” institutions, and exclude “social” institutions such as handshaking and the rules of dating, and informal “economic” institutions, such as black market activity (Helmke and Levitsky, 2006: 4). This distinction does not work well if one sees social and economic interactions as being inherently political in that they affect who gets what when and how— clearly, black markets have a significant impact on who gets what when and how.

Chapter 3

Polycentricity in Islamic Tradition

In considering religious traditions, Tocqueville expressed skepticism about Islam’s ability to harmonize with democratic moral sentiments, arguing that “the Quran elevated political maxims to transcendent status” with the result that Islam “hindered liberty and necessary political innovation” (Allen, 2005: 241). Some constructions of political Islam in the modern era do adopt a monolithic view of the religious tradition, combined with the assumption that specific injunctions must become law to be enforced by the central state authority across all social arenas. And these depictions also prevail in some depictions representing Islam as a rigid rule code to be imposed universally. In her study of Tocqueville and covenant, Barbara Allen noted that Tocqueville did not appreciate the breadth of interpretive inquiry in both the Islamic and Jewish religious legal traditions, but that the tension between ritual law and democratic norms should be addressed (Allen, 2005: 288). Vincent Ostrom and others in the Bloomington school have asserted the presence of covenant or covenant-like understandings in many cultural contexts, including the Islamic one (V. Ostrom, 1997; Malik, 2013). This view is more positive about self-governance potentials in Islamic contexts. This chapter seeks to go beyond these relatively brief treatments and asks: what potential do the religious or historical referents have to serve as moral resources in accommodating institutional diversity and supporting polycentricity in a society with an “Islamic” self-conception? The question is important because it expands the conversation into the precepts that support potentials for polycentricity in polities with an Islamic self-conception, which in turn enhances inquiry into developmental alternatives among policy analysts and civic artisans in such contexts. It is also important because of widespread monocentric assumptions in discussions of Islam and politics, often tied to a monolithic view of the religious tradition, which have tended 91

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to obscure polycentricity-supporting interpretations. Finally, I presume that the religious tradition forms part of the cultural endowment in contemporary Muslim societies where Islam is a defining element of polity identity, and consequently, such exploration helps identify some potential shapers of the mental models that institutional artisans may draw upon as they address collective action issues at different levels. The Islamic studies scholar Wael Hallaq has argued that “considering the moral resources of paradigmatic Islamic governance, that is of the paradigm that was shari’a-minded and thus morally dictated” is important for supporting indigenous patterns of development, just as the “modern West” has drawn on centuries of European experience (Hallaq, 2013: 12). There are important currents connecting and intermingling the “Islamic” and the “Western,” and indeed rendering them into a sibling-like family resemblance or an “Islamo-Christian civilization” (Bulliet, 2004). Hallaq nevertheless sees a value in Muslims developing Islamic history as a “discursive moral practice” and a resource on which Muslims can capitalize as they face the challenges of modernity (2013: 13). In Hallaq’s view, although sharia in its premodern social manifestation (“hermeneutics, courts, discursive practices, educational systems”) has faded, it remains an “immeasurably instructive moral font” (Hallaq, 2013: 13). My own inquiry in this book is not as a theologian or a legal historian; consequently, my inquiry does not evaluate the intrinsic worth of these readings of the religious tradition as weighed against the full range of possible other constructions of these resources and traces. Writing as a political scientist, I see the exploration below as a way to identify part of the cultural endowment (what Hallaq calls the “moral resources”) potentially supporting polycentric order in contemporary developing contexts where Islamic referents and motivations are salient. A crucial portion of the moral resources is a basic orientation among individuals to sympathetically consider the perspectives and interests of others as they exercise constitutional choice and design constitutional-level institutions. Vincent Ostrom emphasized the Golden Rule—to do unto others as you would have them do unto you—as a foundational injunction for the “metaphysics of citizenship in self-governing societies”: “When the Golden Rule is conceived as a method of normative inquiry, it opens the way to a community of understanding, to the development of just laws, and to drawing upon the resources of others to enhance our own understanding of ourselves and the world in which we live” (V. Ostrom, 1994: 55).1 In the Islamic context, the Golden Rule is summarized in the well-known hadith stating: “One of you does not believe until you wish for your neighbor what you wish for yourself.” Thus, at the level of the “metaphysics of citizenship,” the Islamic tradition offers an ethical injunction comparable to the second commandment



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in the Christian tradition and variants in other religious traditions, as well as the basic premise of human equality. On Considering “Tradition” One premise is that constitutional-level deliberation will be more likely to succeed if it engages tradition. In his helpful summary of Alasdair Macintyre’s view, Zaman (2002) suggests that tradition matters because tradition is everywhere, tells one what things can be argued about, and describes how to proceed with argument. Tradition tells us what kinds of questions are appropriate questions, and what kinds of arguments are appropriate arguments. In this way, according to Montgomery Watt, the “West” is the most traditional society that is there. What distinguishes Islam is that it appears, more than any other tradition, to emphatically emphasize a model past as a standard for virtue. While meanings are contested and often reconstructed, S. Sayyid argues that “Islam” is nevertheless constitutive in Muslim polities (Sayyid, [1997] 2003: 45–46). Islam matters as a “master signifier,” because despite the diversity in discourse, Islam has something that makes people feel that it has something in it, an “itness” or a kernel which escapes signification, and unifies and holds members of a community together as long as they believe in it. In a helpful related commentary, Talal Asad recommends that in order to write an anthropology of Islam, one should begin, as Muslims do, from the concept of a discursive tradition that includes and relates itself to the founding texts of the Qur’an and Hadith. Islam is neither a distinctive social structure nor a heterogeneous collection of beliefs, artifacts, customs, and morals. It is a tradition. […] A tradition consists essentially of discourses that seek to instruct practitioners regarding the correct form and purpose of a given practice that, precisely because it is established, has a history. These discourses relate conceptually to a past (when the practice was instituted, and from which the knowledge of its point and proper performance has been transmitted) and a future (how the point of that practice can best be secured in the short or long term, or why it should be modified or abandoned), through a present (how it is linked to other practices, institutions, and social conditions). An Islamic discursive tradition is simply a tradition of Muslim discourse that addresses itself to conceptions of the Islamic past and future, with reference to a particular Islamic practice in the present. (Asad, [1986] 2009: 14)

Not everything Muslims say or do counts as tradition. Neither is the apparent imitation of an old form automatically traditional. Rather, the determining factor is “practitioners’ conceptions of what is apt performance, and of

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how the past is related to present practices” (Asad, [1986] 2009: 15). For the anthropologist of Islam, the theoretical beginning should be “instituted practice (set in a particular context, and having a particular history) into which Muslims are inducted as Muslims” (Asad, [1986] 2009: 15). On this point, Asad asserts that there is no essential difference between classical and modern Islam (Asad, [1986] 2009: 15). Vincent Ostrom (e.g., V. Ostrom, 1997) was convinced that ideas, shared understandings about meaning, and deliberated intent underlying civic artisanship were important in understanding a polity, but had been sidelined in the disciplinary study of political science. Behavioralist social scientists tended to dismiss the role of ideas and intentions. In the philosopher John Searle’s famous critique, understanding a football game through behavioral observation alone will come up with a “law of periodic clustering” of the players, and miss the major point of their rule-bound behavior. In examining potentials for polycentric governance in a given context, we should consider which ideas potentially support the shared understandings that underlie wellfunctioning polycentricity. In an Islamic society, particularly one in which Islam is consciously politicized and remains an active point of political reference, one must consider arguments in that tradition and that idiom. The theory of polycentric political arrangements in Islamic contexts must engage directly with the normative religious tradition. In contrast to some liberal democratic theory, the polycentric approach potentially accommodates some illiberal political theologies (within bounds described below) through constitutional-level arrangements for allowing diverse collective choice arenas and institutions, depending on the choices made in polity design by institutional artisans. Islam and Covenant: Beyond the Anglo-American Protestant Context Tocqueville believed that the Christian idea of equality of humans might be a force for democracy and self-governance, although he also noted the unappealing alternative, where people are rendered equally powerless before a powerful tutelary state. Others, such as Vincent Ostrom (1990), pointed to a “Judeo-Christian” value that asserts the equality of all men. The notion of human equality is deeply embedded in Islamic tradition (Sachedina, 2001). In the Tocqueville view expanded upon by Vincent Ostrom, successful creation and maintenance of self-governing orders requires not only a viable ecological and geophysical context and appropriate constitutional-level arrangements, but also an appropriate moral and intellectual condition of the people, or what might be described as civic virtue (see Malik, 2016; Malik and Marshall, 2017).



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One important source of such civic virtue is a covenantal mindset. For Tocqueville, religion was a key background influence because it laid the basis for a “covenanting society.” Indeed, religion was so important that Tocqueville declared that while dictatorship could succeed without faith, liberty could not. The creation and maintenance of a political order that supported deliberative choice and self-governance rested on type of civic virtue related to the moral and intellectual condition of the people. In the Anglo-American New England settler context, Protestant theologies saw humans as being in covenant with God and with each other. The Golden Rule provided a basic moral yardstick. Experience in designing and revisiting self-governing arrangements at the local township level in New England, undergirded by a covenantal theology, supported a culture of associational life, promoting substantial local choice, as well as training for democratic citizenship generally. “Covenant” may be defined as a morally informed agreement or pact based upon voluntary consent and mutual oaths or promises, witnessed by the relevant higher authority, between peoples or parties having independent thought not necessarily equal status, that provides for joint action or obligation to achieve defined ends (limited or comprehensive) under conditions of mutual respect which protect the individual integrities of all the parties to it. Every covenant involves consenting, promising, and agreeing. Most are meant to be of unlimited duration, if not perpetual. Covenants can bind any number of partners for a variety of purposes, but in their essence they are political in that their bonds are used principally to establish bodies political and social (Elazar, 1998b: 8).

To Elazar, covenants are usually religiously grounded: at its core, a covenant is “an agreement in which a transcendent moral force, traditionally god, is a party” (Elazar, 1998c: 7). Elazar’s work was tied to the Judeo-Christian tradition. This may have to do with the lineage of scholarship on covenant. Several covenant thinkers, including Martin Buber, Mordecai Kaplan, and Daniel Elazar, were Jewish; others, like William James and Reinhold Neibuhr, came from a reformed Protestant tradition. Kaplan suggested that all people had a covenanting bond (Elazar, n.d.). To Elazar, a federal consociational polity starts with the Bible. Elazar summarizes the federalism challenge in the postmodern world: “individuals are to be secured in their individual rights, yet groups are also to be recognized as real, legitimate, and requiring an appropriate status” (Elazar, n.d.). How to accommodate groups and group rights has become a key postmodern problem. Premodern confederations emphasized defense and had few economic ties (Elazar, 1998e: 44). Ancient premodern confederations featured constituent units that were integral polities wherein all citizens were expected to follow the same religion and cultivate the same virtues; these were often amphictyonies, being formally united by religion, often around a central shrine (Elazar,

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1998e: 44). The Adat Bnai Yisrael, an Israelite polity from the thirteenthcentury BC (as described in the Bible), saw people and tribes united in pursue it of a common virtue: “living a God-fearing life under the terms of God’s covenant with them” (Elazar, 1998e: 45). In his list of “Exemplary Premodern Federal and Protofederal Systems,” (Elazar, 1998e: 43, Table 2.1) Elazar does not list a single Muslim arrangement, although the Medina covenant appears to fit. Moreover, his list of premodern polities misses the Muslim empires that incorporated those of other religions, most prominently the Abrahamic faiths, and, in the Mughal case (although not consistently or uniformly), Hindu and other populations. Vincent Ostrom wondered whether Islam had something similar to the image of Jacob wrestling with the Divine command, which he considered important to defining the covenanting, problem-solving society (V. Ostrom, 1996). Muslim religious scholars typically depict Islam as a continuation of the Abrahamic tradition (to which the Judeo-Christian tradition also belongs). Describing prominent covenants in the Islamic sacred history period suggests that there is basis for identifying covenants within the normative Islamic religious tradition, and Vincent Ostrom came to recognize Islam’s commonality with Judaism and Christianity (V. Ostrom, 1997: 228–229). Elazar distinguishes between covenant, compact, and contract. “Compact” and “contract” are both derived from covenant, but are sometimes (confusingly) used interchangeably. Covenants and compacts are both constitutional and public; contracts are private and express private law, and are accordingly “interpreted as narrowly as possible so as to limit the obligation of the contracting parties to what is explicitly mandated by the contract itself” (Elazar, 1998c: 7). Covenants and compacts are both about reciprocal obligations, but in a covenant, the “morally binding dimension takes precedence over its legally binding dimension” (Elazar, 1998c: 7). In a compact, moral force is only indirect; “rather than the guarantees of a higher authority, [a compact] rests more heavily on a legal though still ethical grounding for its politics” Elazar, 1998c: 8). The Aqaba pledge, and the Medina covenant, would both fit the definition of covenant. The Hilf ul Fudul would more likely be characterized as a compact. The general action required in giving baiyat (allegiance) involves voluntary consent and a mutual oath, as seen in Abu Bakr’s pledge as khalifa. Others have a broader notion of what precisely defines covenant, whether they require an appeal to traditional religion, and where they might be found. Covenants “imbue the citizen with the responsibility and moral commitment to struggle with others in recognizing and solving commonly confronted problems” (Shivakumar, 2005: 8; cites Allen, 2005). Covenants are common to all civilizations, although different in cultural expression (Shivakumar, 2005: 8). A prominent recent effort at generating a global interreligious covenant has been the Common Word initiative (Malik, 2013).



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Viable federalist polity designs require inclusive covenants, according to some prominent scholars of federalism (keeping in mind that federalism is a type of polycentric arrangement). The normative Islamic tradition arguably supports an inclusive covenant on which to base a viable polycentric order. Even the term federalism can be traced to a “federal theology from foedus, or covenant, referring to the grounding of all human relationships in the original covenant between God and man described in the Bible and subsequent subsidiary pacts” (Elazar, 2008: xii). There are various norms in the normative Islamic tradition that potentially relate to “covenant”: through purposeful agreement (‘ahd or meethaq), or the ethical duties of citizenship (naseeha2), or the obligations to society (such as the fard kifaya (collective obligation)). Numerous injunctions in the Quran and other religious sources urge believers to abide by their agreements that can be understood as covenants, compacts, and contracts. Of course, such religious references and obligations must be embodied as contextually appropriate practices if they are to be meaningful in shaping society—they must remain not just abstract ideals, but habits of heart and mind supporting the science and art of association, and thus undergirding the self-governing covenantal order. When practiced, and when they serve as signals of a credible commitment to a collective action arrangement, covenantal values support self-governance, potentially increasing trust and lowering the risk of defection. A key problem is how covenanting values that undergird civic associations can be transmitted across generations. Vincent Ostrom (1990, “Problems of cognition”) picks up on Tocqueville’s worry that a “cognitive bias” in democracies will make people progressively infantile and unable to more rigorously address themselves to common problems or hold rulers to account, producing a democratic despotism. A major challenge for this discussion of cultural potentials is not only assessing the degree to which proclaimed values translate into mental models and meaningful practices, but also how these are to be sustained over time and across generations. A Note on Polycentricity in Relation to Minarchism In past publications (Malik, 2008; 2011a), I have sought to describe a “minarchist political Islam” that emphasized limits on central state authority over citizens, subject to the need to protect from external threats, internal predators, and state office-holders violating their constitutional bounds. The present project focuses on polycentricity in Islamic contexts, of which minarchist political Islam may be called one theoretical variant; other more interventionist variants of central state authority and policy activity may be devised or selected based on agent understandings of the nature of collective challenges,

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the normative preferences of constitutional artisans, public interest, transactions costs, and externalities. A key aspect to emphasize in polycentric contexts is that particular extent of governance unit activity can vary locally. As Roberta Herzberg’s reflections on the Bloomington school have stated, the Ostroms did not presume a single correct mix of service provision and tax burden on citizens in an absolute sense; instead, a strength of a polycentric system is that “different demands of citizens are met with different levels of service provision/tax burden combinations” (Herzberg, 2005: 193). Given diverse options, and the right of entry and exit, individuals are able to find a community where their individual interests are compatible with those selected by the community. This model can be described as a type of consumer federalism, where individuals can vote with their feet by choosing within a reasonable range associational forms that suit their preferences (Herzberg, 2005). In a similar view, Aligica and Tarko suggest that in contrast to most deliberative democracy models, which are about trying to obtain a normative consensus or convergence or normalization of which public values ought to be of chief concern, “the polycentric approach is concerned with the possibility of creating valued states of affairs from as many normative perspectives as possible” (Aligica and Tarko, 2013: 738). That heterogeneity is permitted also means the potential for crowding in of religious civic virtue, in which self-organized civic life represents experiments in social arrangements reflecting (often implicitly) different normative preferences, and also fosters a dynamic culture of engagement, learning, dialogue, and civic contestation. In my view, there is an overlap between this description of polycentricity and minarchism in political philosophy. I view minarchism as an ideological position compatible with polycentric orders, one that favors a minimal rather than more interventionist position on the role of the central state jurisdiction, while the specific bounds of authority for each jurisdiction are ultimately to be prescribed by the agents in the polity. Sometimes termed minimal statism, “minarchism” comes with the baggage of some parochial connotations. Its primary association has been with Robert Nozick’s approach centered on the notion that the only legitimate function of the state is to protect individuals from aggression. Nozick’s project, sometimes counterposed to “leftists,” appears to be embedded within a cultural context specific to the 1970s in the United States. Furthermore, the formulation popularized by some libertarian idealogues in the American context leaves some in society vulnerable to aggressive or predatory behavior by powerful non-state actors, be they wealthy controllers of land or capital, or others in socially dominant positions. Particularly in societies with high wealth disparities, the minarchist position potentially undermines the nondominance norm associated with



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polycentricity. One helpful reference point is Chandran Kukathas’ view, which emphasizes the centrality of freedom of association and dissociation: A free society is an open society and, therefore, the principles which describe its nature must be principles which admit the variability of human arrangements rather than fix or establish or uphold a determinate set of institutions within a closed order. Such principles should take as given only the existence of individuals and their propensity to associate; they need not and should not assume the salience of any particular individuals or of any particular historical associations. (Kukathas, 2003: 4)

Under conditions of freedom of association and freedom of dissociation, political society is simply “one among other associations” without subsuming other associations; describing “not a hierarchy of superior and subordinate authorities but an archipelago of competing and overlapping jurisdictions” (Kukathas, 2003: 4). By asserting that only freedom of association is fundamental, Kukathas departs from other approaches to preserving freedom within a political order characterized by social diversity: John Rawls deals with the problem by looking for principles of justice which will attract an overlapping consensus of support within a closed society. Will Kymlicka deals with it by advocating group rights for particular cultural communities. Iris Young argues for the democratic recognition of groups whose interests would be served by their political empowerment. The position taken in this work, by contrast, rejects the assumption of a closed society, and rejects the idea of recognizing group rights or according minorities political representation. In a free society, it asserts, only the freedom to associate is fundamental. There is, therefore, no reason of principle to enforce any other kinds of claims to rights or to representation. There is also every reason to tolerate the different forms that associations might take (Kukathas, 2003: 4–5).

Thus, for Kukathas, the core principle that must be safeguarded in society is freedom of association. The right of exit is a key necessity. This is distinct from a focus on “identity-group” diversity because it suggests respect for institutional forms—diverse associational understandings that may be affiliated with particular identity groups or have cross-identity memberships. In practice, the “who, when, where, how” political questions of recognizing (or not anathemizing) particular associations remains a substantial challenge, and one that different communities at different times will surely address differently. I use the term “minarchist polycentric Islam” primarily to refer to the ideology of a circumscribed central state jurisdiction and the recognition of the juridical integrity and autonomy of other collective choice units that are largely within the territorial boundaries of the polity

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Universal Pontifex In an ideal-type of traditional Sunni Islam, a key presumption is the “universal pontifex.” In theory, this means that all participants in the religious community potentially have the ability to read, narrate, and interpret the tradition for themselves according to their conscience and the quality of their expertise and investigation into particular questions.3 This contrasts with the ideal-type of Roman Catholicism, in which a pontifical authority and a hierarchically organized church provide the authoritative voice arbitrating theological disputes for the community of believers. It also means a potential anarchy of interpretative voices in the Islamic tradition. In practice, the Roman Catholic tradition is not single-voiced, while Islam has seen barriers to new and alternative interpretations of the tradition. Nevertheless, the Islamic tradition allows a potentially wide, open field for community members to interpret religious guidelines according to their good conscience and jurisprudential inquiries. At the level of jurisprudential contestation, it is possible to find differing positions on significant social questions whose respective proponents nevertheless accept each other as “Islamic.” Arguably, the recent experience of the Muslim world has been one in which barriers to exercising the universal pontifex have been lowered. The lithograph and other mass reproduction technologies, along with a rise in literacy, have made possible the dissemination of contemporary interpretations far and wide. Social distance has been reduced with easier travel and faster communications. Membership in the ulama—the traditionally educated class of religious scholars—has become less important as a condition for offering religious legal opinions. Epistemic and moral authorities—key facets in traditional jurisprudential discourse (Hallaq, 2001)—have eroded as necessary qualifications for offering religious opinions. Movements such as the modernist Salafism of Mohammad Abdu and later Rashid Rida of the late nineteenth century were made possible largely because of mass circulation journals. Syed Abul Ala Maududi, a major twentieth-century ideologue and founder of the Jamaat-e-Islami, was not among the traditionally trained ulama, but a journalist. Sayyed Qutb, a major ideological figure for a range of Islamists, was a literary figure rather than a member of the ulama. Major social shifts mean increasing disparate views on what constitutes the appropriate Islamic social order. Unless this pluralism within the Islamic fold can be accommodated, the risk is a severe internecine war among Muslims. The minarchist polycentric approach provides one potentially pragmatic model for a polity architecture that incorporates communities of Muslims that have individual and group level disagreements on appropriate Islamic social guidelines, as well as non-Muslim individuals and groups that co-constitute the society.



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Rationales from the Islamic Normative Tradition That Support Polycentricity The theologian Abdul Hakim Murad has described “Islam” as “radical freedom,” “a freedom from the encroachments of the State as much as from the claws of the ego” (Murad, n.d.). The notion of a minarchist polycentric Islam draws some inspiration from this perspective (although Murad does not use this vocabulary). A number of injunctions, practices, and other traces in the Islamic tradition can serve as symbolic support for polycentricity in modern polities with an Islamic self-conception. I list some of these below. “Let there be no compulsion in religion” La ikraha fid deen (Let there be no compulsion in religion) (Quran 2: 256) presents an important rationale for the minarchist polycentric Islamic approach. It is interpretable as a basic rule in matters of religion—that people cannot be coerced, and must be able to choose. That interpretation appears to fit closely with the general norm of nondominance expected in a minarchist polycentric order. The verse continues to assert that truth has been made clear from falsehood, and then suggests Divine favor for those who choose the right path. This verse immediately follows the famed ayat ul-kursi (verse of the throne), sometimes described as the most awesome verse of the Quran, and that proximity adds to this verse’s prominence, since the two are often recited together. Competition Is Good for Religiosity If the overall goal of a political order is to enhance devotion to an Islamic ideal, then the polycentric order may serve this purpose well because of the competitive forces it unleashes. Micklethwait and Wooldridge (2009) argue that the presence of competition between religions enhances religiosity. Catholicism had a monopoly in Latin America until evangelical/Pentecostal approaches started gaining converts. The US constitution has had an important role to play, because it has modeled a separation of church and state. In the Salem days, the proportion of the population with strong religious affiliation with a particular denomination was actually low. Over time, competition between religious denominations has produced a stronger role for religion in American society. In Europe, the Westphalian peace gave kings the power to choose their subjects’ religion. As a result, there were religious monopolies in individual countries, and this possibly contributed to people turning against religion. The Medina Compact The Medina model for constitutionalism, although widely referenced in discussions of the Islam and politics, cannot be replicated because fallible

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individuals cannot have the “exclusive divine authority” that the Prophet carried (Al-Naim, 2008: 106). The Medina model is interpreted in different ways by Sunnis and Shias; while Sunnis combine the Prophet’s leadership with the four “rightly guided caliphs,” Shias model the rightful imamate since Ali differently depending on doctrine (Al-Naim, 2008: 107). Al-Naim argues that the Prophetic state in Medina “should not be discussed as an example of an Islamic state that Muslims can replicate after the death of the Prophet”; after his death, the state in Islamic history has been a political rather than religious institution (Al-Naim, 2008: 280). Yet it is possible to infer a constitutional principle of polycentricity that acknowledges diverse communities and retains their autonomy, as the compact was a “covenant of mutual obligation” between different communities, including non-Muslims (Lings, 1983: 125–26; Malik, 2011a: 196). Short of seeking to replicate the model, however, Muslims can still pursue a general principle, namely that of substantial autonomy for communities that share a covenant constituting a single political order. The Hilf ul Fudul The Hilf ul Fudul, translated by Martin Lings as “the chivalrous pact” at the Ka’aba, was an agreement among the Quraysh tribe in pre-Islamic Mecca for collectively redressing grievances arising from commercial infractions. The pact arose after a visiting Yemeni merchant felt wronged by a Meccan, and declared his grievance publicly, shaming the Quraysh. It represents an exercise in self-governance, given the relatively anarchic nature of the region at the time. From the perspective of normative arguments for polycentric Islamic order, the Hilf ul Fudul is important because it was endorsed by the Prophet prior to his call to Prophethood, and remained a valued arrangement, describing it as “so excellent a pact that I would not exchange my part in it for a herd of red camels; and if now, in Islam, I were summoned unto it, I would gladly respond” (Lings, 1995: 32). As a pact for collective governance, this represents an important normative argument for community self-governance to serve the social good. It came into existence outside of a strong central authority, and in this sense was not a recourse to an external third-party “state.” Moreover, it was not bounded to Muslims, but was valued for the purpose that it served. Both elements are consonant with the way selfgovernance may emerge in a polycentric context.

JURISPRUDENTIAL TRADITION The jurisprudential tradition is important to consider in describing the Islamic polity because it refers to a key backdrop in explaining how many Muslims



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think about religious guidance today. While this was historically an elite discourse, often distant from the majority of Muslims in premodern times, efforts in the modern era to find traditional rationales often turn to the jurisprudential tradition. Jurists are often identified by the madhab, or school of jurisprudence, to which they belong. A key aspect of Islamic legal history is “private legal consultation,” (ifta). Scholars can independently of the state issue legal opinions when requested by “provincial governors and state judges,” and individuals (Al-Naim, 2008: 16). The religious responsa on social questions are extrapolated from scriptural sources, established jurisprudential approaches, and various forms of legal reasoning. Different roles are ascribed to reason and adherence to precedent (taqlid) as compared to independent religious legal opinion (ijtihad). The sharia is presumed by many to be a monolith, a single-voiced rulebook on permitted and proscribed behaviors. Yet there are ongoing interpretative differences on most major questions, as well as the potential for further contestation. These differences are tied to both the universal pontifex and the jurisprudential tradition in Islam. A recurrent claim is that there is no space for innovation in the sharia after the first centuries of Islam, extending to either the sacred history period of the Prophet’s time and the early generations, or the golden age of jurisprudential development. The latter view is suggested in the notion from Joseph Schacht’s scholarship that the “gates of ijtihad were closed.” Amid widespread religious calls for reopening the possibility of ijtihad, Islamic legal studies scholar Wael Hallaq has questioned whether “the gates of ijtihad” were ever “closed.” Indeed, Hallaq has argued that change is structurally built into the fiqh process (Hallaq, 2001). In contrast to the stereotypical image of tradition that seeks to seal itself from encroaching modernity, the ulama have been active in engaging new questions and changing conditions while trying to maintain their roles as custodians of the tradition (Zaman, 2002). Whatever the closure may have been historically, it remains the case that there is normative openness to the potential for new or different interpretation. Al-Naim asserts that since the tenth century, there has not been any change in the “basic structure and methodology of Shari’a” (Al-Naim, 2008: 15); however “from an Islamic point of view, no human authority was or is entitled to declare that ijtihad is not permitted, though there may have been consensus on this matter among Muslims” (Al-Naim, 2008: 15). An interpretive flexibility has remained normatively available, and was often historically available also. A common suggestion is that sharia is immutable while fiqh (jurisprudence) is human interpretation that changes according to context and circumstance. Al-Naim dismisses this suggestion, asserting that “both Shari’a and fiqh are products of human interpretation of the Qur’an and Sunnah of the Prophet in a particular historical context” (Al-Naim, 2008: 35):

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Whether a given proposition is said to be based on Shari’a or fiqh, it is subject to the same risks of human error, ideological or political bias, or influence by its proponents’ economic interests and social concerns. For example, a person may claim that the prohibition of riba is decreed by Shari’a, but this claim cannot be meaningful without a clear definition and application of this term, which is the subject of fiqh. Since human interpretation of relevant texts of the Qur’an and Sunna is unavoidable in both aspects of this issue, it is difficult to distinguish between the two. (Al-Naim, 2008: 35)

In my view, Al-Naim takes a rather narrow definition of fiqh when he makes this argument; in practice, everything requires fiqh (particularly if we think of fiqh as the effort to discern the sharia), and one can still assume that a “true” sharia exists in the realm of absolute Truth, while simultaneous affirming that Muslims cannot claim to authoritatively know the sharia’s full import. The tradition requires an accompanying modesty and humility in acknowledging one’s fallibility and the possibility of error. This is captured by the traditional closing of scholarly and jurisprudential discourse, the phrase wallahu a’lam, “and God knows best.” There is a subtle matter of emphasis. One can retain a metaphysical faith in the “true” sharia while accepting that in practice, all notions of sharia and fiqh are mediated through human discourses, and subject to human limitations and fallibilities. Al-Naim’s basic point about the diverse interpretative potential of Islamic law, however, is significant and valuable when considering challenges of institutional design. One possibility is to rely not on specific ahkam ul-fiqh to guide positive law, but on the maqasid (goals) of the sharia. Al-Naim believes that the maqasid of sharia are too abstract to give concrete guidance. For example, the “protection of religion” does not define precisely what religion is, voiding its utility for legislation; which religious communities are recognized, and how far freedom of religious preference extends, are unanswered (Al-Naim, 2008: 36–37). Islamic Jurists in Relation to Rulers An important coda here relates to the distinct realms of authority occupied by religious legal scholars and rulers in many premodern Muslim societies. Islamic studies scholar Asifa Quraishi suggests that In some significant ways, these different realms constituted a separation of powers, with rulers and scholars “checking and balancing” each other in mostly stable political environments. Their mutually interdependent relationship stemmed largely from a division of lawmaking authority that distinguished rulemade law, siyasah, from scholar-crafted law, fiqh. As a result, the rule of law in Muslim lands depended upon both siyasah and fiqh, and legal and political order



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was achieved by rulers and scholars working both in cooperation and competition with each other. But, unlike the relationship between executive, judicial, and legislative powers in modern democracies, the classical Muslim balance of power was not between government entities but rather between the government as a whole and the nongovernmental forces of scholarly academia. Neither had absolute power over the law, and each institution recognized the other’s presence and role in the system. (Quraishi, 2012: 63)

From a polycentric governance perspective, the ruler-headed central authority would not be termed as the exclusive governmental unit; rather, the activities of jurists and the arenas in which they were consulted and issued rules and rulings would be considered a related collective choice association. This becomes important in the postcolonial Muslim state context, where the central state authority’s hegemony over determinations of orthodoxy and the presumption that all religious law determinations come from the central state entity, combine to produce the risk of a theocracy in a way alien to the classical Muslim context. By emphasizing many spheres of associational activity, the polycentric metanorm provides opportunities and arenas for well-established and credible fiqh determinations outside the official apex government entity. Another noted Islamic studies scholar, Sherman Jackson, takes the distinction between rulers’ edicts and the jurisprudential tradition further, suggesting that Islamic religious law was developed in conscious opposition to the state: With the exception of its claim to divine origins, perhaps the most glaring contrast between Islamic law and modern, secular systems is that Islamic law constitutes what the late Orientalist Joseph Schacht referred to as an extreme case of “jurists’ law.” Islamic law was neither the creation nor the preserve of the early Muslim state. Rather, it developed to a large extent in conscious opposition to the latter. Private Muslims, during the first two centuries or so following the death of the Prophet Muhammad in 632 CE, succeeded in gaining the community’s recognition for their interpretive efforts as constituting the most authentic representations of divine intent. (Jackson, 2002)

In other words, authority other than the apex of the central state apparatus provided the loci for pronouncements on jurisprudential matters—a point that must be qualified by considering that the “state” in the premodern Islamic context was different in bureaucratic apparatus and the nature of its authority claims, in the formation of subjects, and as a source of legislation. In Wael Hallaq’s view, the “modern state” with its capacity to produce subjects is a parochial European paradigm distant and incomparable to the governance paradigm in premodern Islamdom in large part because of the absence of the monarch or state from legislation (Hallaq, 2013: 110). Hallaq’s perspective

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suggests that the moral resources of paradigmatic Islamic governance are different—and in this context, the Bloomington school’s willingness to question the monocenter being so prevalent in discourse on the “state” makes a path for alternative thinking about governance. To a degree, the premodern Islamic context is “medieval” in its overlapping and incomplete patchworks of claimed rights. But the comparison is somewhat flawed in that, unlike the case with medieval Europe, Islam—particularly its major Sunni denomination—did not feature a powerful hierarchic equivalent of the Roman Catholic Church with its widespread jurisdictions and extractive capacity. It is commonly noted that there is not a “church” in most of the Islamic tradition, in the sense of a hierarchic entity that claims the exclusive right to speak for the religion. According to Richard Bulliet (2004), the religious law was a mechanism for protecting people from the vagaries and whims of the powerful, rather than a totalitarian single-voiced monotonic rule imposed uniformly on all. This is not to say that the ulama simply spoke truth to power and were above compromise with worldly authority; on the contrary, religious scholars often provided religious justifications for monarchic rule and the suppression of violent rebellions, and faced accusations of corruption. But the diversity among the scholarly class, and the acceptance of such diversity as a legitimate feature of the interpretation of sharia, combined with the lack of a hierarchic, hegemonic church, distinguishes the Islamic tradition, particularly the Sunni one. To the extent that religious legal interpretation involves considering nuss (text), as well as precedent, applicable analogy, and the waqia (context), it relies on expert information about the applicable context. That expert information is from a polycentric governance perspective is best apprehended by those engaged in the action situation, and in this sense, the development of law must engage the local community. There are other areas also, such as the roles of maslaha (public interest) and adaat (custom), described below. Maslaha (Public Interest) and Other Sources of Rule Diversity in Islamic Law A recurrent element of traditional jurisprudence is to consider the maslaha (public interest). To the extent that multiple jurisdictions in a polycentric order serve the maslaha, there is a religious motivation for supporting such an architecture. Where central state hierarchies have had a pernicious or destructive effect, constraints on the central state’s latitude arguably serve the maslaha. It is also arguable that, due to information asymmetries, local actors concerned with collective choice over their locale are best positioned to discern the maslaha and to act to achieve it, and this local authority is facilitated in a polycentric order.



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Moreover, there is the potential for governance benefits from competition between public economies, which can be contrasted with “market economies.” Kenneth Galbraith’s (1952) “emphasis on countervailing power suggested that competitive dynamics in public economies could exist in highly federalized systems of governance subject to significant magnitudes of fragmentation of authority relationships and overlapping jurisdictions” (Ostrom and Ostrom, 1997: 81). These competitive dynamics can generate governance efficiencies, which is in the public interest. While messy or apparently chaotic, the redundancies in a polycentric system may be a source of robustness, resilience, and experiment-based learning regarding policy choices (E. Ostrom, 2005). Local community adapts religion through ijtihad (interpretative opinion that extends prior understanding) that considers its waqia, or specific context. Those contexts are diverse in ecology, understandings, identity, heritage, historical moment, and other community-specific variables that are best understood by the community’s members who routinely engage with their particular context. Moreover, diversity allows experimentation, and the prospect of finding more successful forms that can be emulated elsewhere. Recognizing and valuing such diversity was part of “the genius of classical Islamic jurisprudence” (Crane, 2008). Wael Hallaq, a noted authority on Islamic law, has argued that change is a structural feature of the sharia and its fiqh (Hallaq, 2001; 2012). Diversity in Quranic Interpretation Discussions about Islamic guidelines often take the Quran as their starting point. The text can be read in multiple ways, as noted by reputable figures from the classical era. Ibn Rushd (d. 1198) noted the “inescapability of diverse interpretations of Qur’an,” who distinguished between the first level of interpretation which relate to jurists, and the “literal, strictly linguistic sense of the verses”; the second level occupies the theologians, “who are interested in arriving at a more rigorous and widely accepted view through debate and disputation” (Al-Naim, 2008: 46). The third level belongs to the philosophers, “whose interpretation is based on rational principles that are incontestable by any human in his capacity as a rational being” (Al-Naim, 2008: 47). Consensus, or ijma’, is sometimes invoked in claims that a particular textual interpretation is authoritative and beyond contention as an exclusive truth and final understanding. Yet the “who, what, when, where, how” questions make it nearly impossible to identify consensus in practice, and although consensus is sometimes claimed, it is also disputed. Even consensus over many generations is still a claim about human understanding of the Quran;

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the conditions for ijma’ are very difficult to fulfill, and “even if the necessary conditions are satisfied on any particular view, it cannot be exclusive or final, because such consensus depends on the context and the method of interpretation employed” (Al-Naim, 2008: 47). Abu Hamid Ghazali (d. 1111 CE) suggests an enormous diversity of interpretation is possible, and that most of it is behind the obvious or surface interpretation (N. Ahmed, 2001). Ghazali quoted a statement ascribed to Ali b. Abi Talib, to the effect that “If I so will I can certainly load 70 camels with the exegesis of the opening surah of the Book” (N. Ahmed, 2011). To Ghazali, this suggests that those who assume that the meaning of the Quran is captured by the outward or obvious exegesis only display their own limitations (N. Ahmed, 2011). This suggests that an extreme sensitivity to interpretative voices is needed, since they may be part of the subtle, behind the surface insights into the possible meanings of the passage. The akhlaq Tradition in Sharia In his assessment of India from 1200–1800, Alam (2004) suggests that sharia often denoted a juristic corpus, but also meant the akhlaq literature. Alam’s work shows explores this alternative approach, taking the thirteenth-century scholar Nasir al-Din al-Tusi as a major source (among several others).4 Termed as the akhlaq tradition, the literature drew widely on non-Muslim and Muslim sources to describe the appropriate underpinnings for successful kingly rule. The emphasis in the akhlaq literature is sharia as the norms and ethics of political governance (rather than sharia as compiled fatawa). While the akhlaq literature takes quasi-Mutazilite positions, it gained acceptance and was even taught in traditional Sunni schools. What was a “literature of dissent”—people who were trying to argue their alternative positions using the label “sharia”—became accepted as orthodoxy. Innovations in one era can become orthodoxy in another, part of the process of the reconstruction of tradition. The akhlaq tradition adds to the diversity of understanding possible under the label of sharia. Istihsan Linguistically, istihsan means seeking to make something excellent or beautiful. In practice, it refers to a tool in jurisprudence that increases the diversity of possible opinions or responses to specific questions. In turn, the rulings of fiqh can rationalize or religiously justify particular institutional rules, which are also diverse. The typical guidelines according to which several wellestablished schools of fiqh proceed are to start with the Quran and Sunnah and to use qiyas, or analogical reasoning. However, many if not most situations



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can be assessed using multiple analogies. Some analogies are less obvious or apparent than others, but may be as valid or more. Consequently, the jurist seeking to respond to a question on religious interpretation must consider which analogy to choose among alternates. Not all schools of jurisprudence include istihsan as a formally recognized tool. However, many will in practice permit it, even to the extent of permitting it while officially proscribing it (Kamali, 2005). The choice may be driven by considerations of equity and fairness. This again begs the engagement of local participants within an action arena, because they are likely to have the greatest awareness of fairness and equity issues (although not without potential pitfalls, such as the possibility that self-serving, strategic representation of a situation by an agent in an arena could make the “true” facts difficult to ascertain). Istishab The jurisprudential tradition includes concepts that may serve to address the manifold social challenges of governance. Istishab, a concept that Hasan Turabi inferred from juristic practice, refers to, The process of seeking a link between an earlier and a later set of circumstances. In applied jurisprudence, this method has enabled jurists to establish the validity of existing practice by linking it to the idea of continuity with the past. In other words, the emergence of a new religious-legal system need not seek to destroy the already established conventions and customs of a given region; rather, its function is restoring justice by seeking the link between that which is desirable in the present and that which is worth retaining from the past. (Sachedina, 2001: 58–59)

Istishab is another element in the juristic tradition that values and retains the local community institutions. This recognition and acceptance of local practices suggest polycentricity, because those practices are contextually specific, and vary from context to context. Adaat and urf Recognition of customs, or adaat, can be the basis for customary law, recognized by jurists as one source of law. Such recognition describes a path by which informal institutions are or may be formally recognized and compatibilized into the polity practice. A claim to what is “reasonable” or “appropriate” or correct in a particular social circumstance must first assess how that social context defines reasonableness and appropriateness, and what its norms are. It is widely asserted that Islam adapted to local traditions, norms, and institutions when they did not contradict basic Islamic principles, an approach traditionally accepted as the Prophet’s Sunnah (Al-Naim, 2008: 227).

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Muslim scholars were able to freely use adat (local customs, social habits, or practices, especially those relating to juridical or legal rulings) in their decisions and deliberations. As adat for each community changed over time, so did Islamic adaptability and the gradual processes of integration. Both adat and Shari’a are said to have been treated as applicable legal systems among local Islamic communities.” (Al-Naim, 2008: 227; cited Lukito, 1998 and Lukito, 2003)

The deliberations on adat in Indonesia pit the diversity of traditional practice with the impulse for a uniform single law. Custom, also known as urf, finds frequent reference in Islamic legal opinions, although its relative weight compared to scriptural text, ijma (consensus), or qiyas (analogy) remains debated. A related term is ma’ruf, which may be translated as what is commonly acknowledged and customarily accepted in a community. Can the Quranic instruction of amr bil ma’ruf wal nahi ‘anil munkar (ordinarily translated as commanding the good and forbidding the evil) also be interpreted as commanding that which is customarily accepted by a community, and rejecting that which is customarily rejected? If legitimate, this interpretation would suggest that attentiveness to community practice and common community knowledge is necessary to implementing a key scriptural injunction. Expertise in waqia (context) The power of local knowledge and its necessity in informing well-deliberated religious opinions provide strong support for polycentric order because it demands voice and empowerment for local expertise in the local context (the common term for contextual situation to which religious principles are to be applied is waqia). Consider that actual fiqh must consider both the nuss (textual guidelines, and general principles, precedent, and other rulings) as well as the waqia (the context, or in the language of Bloomington school analysts, the “action situation”). Where information is dispersed, the action situation’s experts are the local participants. An outside analyst, such as a scholar who is asked to offer a ruling on the situation, runs into the problem generally faced in relying on outsiders: they may miss crucial features of the local situation that are not immediately apparent or captured and articulated effectively in descriptions given to the expert. Of course, this does not mean that outside expertise has no role to play. Scientific information relating to groundwater use, for example, may be critical in helping a community ensure sustainable water use practices. But choosing appropriate policy is typically well served by incorporating local participation. Experts on waqia usually include the local participants in the action situation; they must retain significant voice and rule-making authority in order



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to better secure intended outcomes through awareness of the rules-in-use and the local social and ecological circumstances. This point is typically missing or only given marginal notice in monocentric/monolithic approaches to Islam and governance. From the perspective of supporting the self-governance habits that underlie polycentric orders, it would be helpful to value an “action research” model of engaging the local community, using outside expertise as necessary, and building better community outcomes as a result. That model does not disempower locals, although there are still political questions about who gets a seat at the table, and the decision-structures that are used, and particularly the role of outside resources in distorting existing local institutions. There is always a difficult balance involved, as outsiders risk undermining local institutions by their material resources and their power to set agendas. Waqf The organizational trust-in-perpetuity form known as waqf (endowment; plural awqaf) suggests a traditional platform from which social services can be provided outside of the state, and helps secure some autonomy for religious leaders and institutions. To the extent that waqf associations can enjoy financial autonomy for schools or social service organizations, they can support self-governing associational life. Scriptural injunctions to give in sadaqa (charity), particularly sadaqa jariya (ongoing charity) provide one motivation for pious persons to create a waqf. Historically, it is arguable that waqf supported scholarly institutions and encouraged jurisprudential independence from state authorities by insulating scholars from arbitrary dismissal by a ruling figure. Waqf can be compared to an endowment or trust fund supporting a nonprofit institution such as a university. It is not state-controlled, but not “private” in the sense of a commercial profit-seeking entity. Rather, it has a public purpose that is independent from the state. In premodern Muslim societies, waqf donations also served to maintain broad social cohesion in an implicit bargain: The ulama deferred political and military authority to foreign military regimes, whether Seljuk, Ayyubid, Mamluk, or Ottoman, while they retained authority over matters of religious practice, doctrine, and institutions […] the ulama supported the military state, while the military state protected the Muslim lands. The military elites and the prominent civilian administrators secured their ties with the religious communities by endowing religious colleges, mosques, and other institutions of the Muslim community. (Al-Naim, 2008: 65)

The arrangement suited both the military and religious authorities, allowing each to maintain a domain of influence.

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In the postcolonial period, various governments in majority-Muslim countries have made substantial moves to bring awqaf under the central state’s purview, sometimes arguing that corruption or mismanagement requires a state takeover. This has constrained the religious scholarly class, because their incomes and jobs are more dependent on state approval, reducing autonomy in decision-making since the central state now holds an effective veto over scholarly activity. Restoring the independence of awqaf would present one pillar on which a polycentric order could rest.

POLITICAL ISLAM, MODERNITY, AND POLYCENTRICITY This section touches on some more recent developments, ideas, and considerations that shape the way a polycentric metanorm may be manifested in a contemporary Islamic context. I also distinguish the metanorm from other notions, particularly those associated with fundamentalism and a type of monocentric secularism. To begin, it is appropriate to refer to the Ottomans, which represent a major Muslim empire lasting into the modern era. The Ottoman System The Ottomans, the dominant force in the Middle East for centuries, typically practiced what some viewed as a pragmatic secularism. According to Ottoman historian Halil Inalcik, the Sultan’s law, or kanun, was a secular legal system that complemented the sharia, and the Ottoman system could be seen as a legal association (Yavuz, 2003: 40–41). Given the Ottoman Empire’s internal heterogeneity, the “legal system was decentralized, diverse, and dynamic, to cope with the wide religious, ethnic, and cultural diversity of the population” (Al-Naim, 2008: 188). This description of decentralization can be contested, particularly given the later Ottoman efforts to codify religious law, as referred to below. A well-known feature of Ottoman rule was to recognized millets, which were confessional communities, and grant them substantial autonomy in their intracommunal governance in return for loyalty to the Sultan. Under the Ottomans, non-Muslim communities were vertically integrated into a hierarchical ruling structure but had their own independent legal systems. This mutual accommodation enabled different social groups living under a shared political structure to practice distinct ways of life; life-worlds were the preconditions for an individual’s existence, rather than the objects of individual interests as they are conceived within liberal democratic thought. The system did not make non-Muslims



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the social or legal equals of Muslims, but it did grant them a certain autonomy to practice and develop their traditions in a manner that is almost inconceivable under the the current system of nation-states. (Mahmood, 2004: 76)

This represents one historical model with elements of polycentric governance. It did not fit exactly with the individualist aspect of the minarchist approach described above because there remained significant restrictions on individuals; the “right of exit,” or “disassociation” was not safeguarded. Religious hierarchies within each community were empowered to combat dissent and heterodoxy. Despite this critical difference, the Ottoman system nevertheless represents an important historical reference for polycentric order in that diverse laws and rules coexisted to provide governance. Particularly in peripheral areas, local self-governance and conflict adjudication was often paramount, late into the nineteenth century. This is suggested in an account of Marmaduke Pickthall’s travels in Ottoman territory, including Palestine: Some of his [Pickthall’s] experiences in the twilight of that exotic world may be re-read in his travelogue, Oriental Encounters. He had found, as he explains, a world of freedom unimaginable to a public schoolboy raised on an almost idolatrous passion for The State. Most Palestinians never set eyes on a policeman, and lived for decades without engaging with government in any way. Islamic law was administered in its time-honoured fashion, by qadis who, with the exception of the Sahn and Ayasofya graduates in the cities, were local scholars. Villages chose their own headmen, or inherited them, and the same was true for the bedouin tribes. The population revered and loved the Sultan-Caliph in faraway Istanbul, but understood that it was not his place to interfere with their lives. (Murad, n.d.)

The description is somewhat flowery, and the above account is not the result of an ethnography or systematic mapping. Nevertheless, it suggests an important perception that primary governance institutions were local, applying both to the sedentary village dwellers and to the nomadic tribes. Further, there is an echo of self-governing communities that used traditional understandings to adjudicate disputes, where “Government,” in the sense of the central state bureaucratic imposition of single code of sharia is absent and where traditional practice maintains local freedom, in the sense of noninterference from the formal authority in Istanbul. Eventually, the Ottomans departed from their own practice in making an effort to codify and then enact an interpretation of sharia, and set up a model of the state authority in postcolonial Muslim states as the codifier of a largely uniform sharia code. Although the Ottomans never attempted to implement the “totality of Shari’a” but restricted themselves to attempting to apply the

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Hanafi school in “specific and limited jurisdictions,” their codification was nonetheless consequential: When they eventually decided to codify some Hanafi principles, by the midnineteenth century, that marked the first time in Islamic history in which Shari’a principles interpreted by a single school were codified and enacted as the uniform official law of the land. That innovation, which became the norm in the postcolonial Muslim world, at least on family-law matters, legitimized and institutionalized state selectivity among the competing views of Shari’a without genuinely opening the basis of family-law legislation to debate as a matter of public policy. (Al-Naim, 2008: 16)

The Ottoman codification of some sharia rulings from the Hanafi school was known as Majallah. The Majallah achieved supreme authority swifly, “partly because it represented the earliest and most politically authoritative example of the authority of the state to promulgate shari’a principles officially, thereby transforming them into positive law in the modern sense of the term” (Al-Naim, 2008: 17). The principle of “selectivity” (takhayur) among “equally legitimate doctrines of shari’a” had been previously accepted but not used on as formal a scale as the Ottomans tried (the Majallah included some “provisions drawn form sources other than the Hanafi school, thereby expanding the possibilities of selectivity from within the broader Islamic tradition” (Al-Naim, 2008: 17)). European colonizers such as the British also tried to codify Islamic law; as described below, it is ironic that this relatively recent notion of a single state-endorsed Islamic code regulating religious life became a feature of fundamentalist revivalism movements in postcolonial Muslim contexts. Fundamentalism One common image associated with fundamentalism is the belief in an absolute, transcendent Islam that is pristine and separate from historical context, accompanied by an anxiety that “pure” Islam may become tainted by the adoption of alien ideas. If meaning is socially constructed, however, it raises questions about how terms and symbols can meaningfully be compared in different historical circumstances. What if “Iman” or “sharia” or “jihad” is understood differently in different circumstances, but emphasized in each? Taking a contemporary “meaning” and ascribe it to past instances in which the term has been used, can distort history. The problem, while acute in the case of fundamentalist approaches, represents a potential difficulty for all attempts to read “the tradition” in a singular way. For example, in the usages of key terms, at least in the Indian context, “there was no continuity or singularity of meaning from medieval times to the present” (Alam, 2004: 2).



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‘Sultan’ is offered as an example—it meant royal personage or authority but often was used to refer to a monarch’s distant, powerless relations also (Alam, 2004: 2–3). The emphasis on social construction of meaning has more general significance for what happens when “Islam” enters new contexts: does intellectual and moral transformation arise from cultural accommodation, or should these be viewed as a more “banal pragmatism”? (Alam, 2004: 1). “Accommodation” is a limited process pursued for convenience in a new context; “alloying” is about “structural modification” (Alam, 2004: 4). Alam argues that “it is futile to speak of a ‘pure’ Islam which became ‘alloyed’ simply by its contact with Indian religious practices and notions […] Islam was already an alloy, so to speak, both at the popular and even at the higher (say, theological) level, heaving incorporated major elements of pre-Islamic Persian concepts into itself” (Alam, 2004: 3). The image of ongoing malleability and redefinition provides a normative challenge to the fundamentalist worldview. It is arguable that some modern Islamists have become so alienated from the past as to absorb rigid notions about “true” sharia, notions which themselves were produced from colonial interventions. This relates to a bigger question Mahmood Mamdani (2007) touched on: how does politics create and modify culture, and make culture ideology? In brief, Islamism, if it has arisen in a neocolonial context, has sought to “define” itself differently, and that has meant appropriating pieces from the past. This can be particularly stark when conceptions of sharia are reduced to absolutist zeal for public enactment of “Islamic” punishments. A significant challenge for traditionalists who contrast this with the ongoing contestations in the tradition is to revivify a broader set of voices; this “sunlight” has the potential to create critical reassessments of the authoritarian claims made by some zealous political Islamists. In practice, this means relying on a socially weighty deliberative community, which can be difficult to locate, given postcolonial dislocations, inequalities, and conflicts. And efforts to identify cultural potentials for polycentric governance also involve reconstructing the “tradition,” with the ultimate arbiters of authenticity being communities of practice. Yet the scholarly critiques referring to the paradoxes of Islamism seem especially suited to rejecting the claims of the monocentric, monolithic approaches. Alam defines as ‘Islamism’ as a “particular thread of religious revivalism” that is completely at odds with the entire history of Muslims civilizational borrowing and appropriation from the various cultures it has encountered—the way forward for the subjugated Muslim world has been narrowly and stultifyingly understood as lying only within an all-encompassing Islam, which has itself been narrowly defined and theologically constrained by this school of Islamic

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thought. The struggle of Islam, from this narrow perspective, requires the acquisition of political power in order to implement an ideology for recreating the rule of Allah on earth. This worldview has only resulted in a violent and radical form of political Islam, which has been nourished by memories and the observation of injustice at the hands of Western colonialism and neo-colonialism. (Alam, 2004: 18–19)

Muzaffar Alam’s view quoted above may be overstated, in that some forms of political Islam can also take nonviolent paths (such as the “renouncer,” “enclave,” or “transformer” possibilities suggested by Almond, Appleby, and Sivan (2003)). The seemingly paradoxical core assertion of revivalist Islamism (acquiring central state jurisdictional authority in order to centrally implement “Islam”) is at odds with the tradition, yet remains valid to many observers, and has been amply commented on elsewhere (e.g., Abou El Fadl, 2001; Lumbard, 2009). While one prominent social movement organization, the Muslim Brotherhood, has in some contexts claimed a ground-up strategy of the transformation of neighborhoods before other higher collective choice arenas, in practice the Brotherhood approach has tended to be a vanguardist effort to build recruits for a mass movement rather than an effort to cede genuine autonomy to local actors in local contexts. It is ironic, given the common anti-colonial narrative of political Islamists, that the effort to codify sharia as a uniform code of public law is partly traceable to the formal colonial era. A colonial push for uniformity imposed the notion that sharia is a rigid, uniform, formulaic legal framework, rather than the more ad hoc, personalistic, and flexible approach that predominated in many contexts. Alam summarizes the colonial intervention as follows: East India Company officials often felt uncomfortable with the interventions of traditional qazis and muftis in civil and criminal matters. They attributed the variety and flexibility in indigenous styles of pronouncing judgment to what they called the “culpable bias” of these muftis and qazis. To them, the latter’s discretion emanated from a lack of “integrity” in the natives. They thought that considerations in the shari’a for the prevailing local customs and social practices created an uncalled for space of “arbitrariness.” They thus felt that there should be a fixed code, authoritative and authentic, based on original legal texts, with which they intended to counter the interference of native maulavis. Thus emerged a condition which nurtured the assumption that authority rested only within texts selected at their behest. (Alam, 2004: 8)

In other words, the British found a uniform code more convenient than the more diverse and variably locally empowered version. They rationalized codification through value-laden terms such as bias and arbitrariness.



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This points to the paradox of modernity among revivalist Islamists. Islamists such as Hizbul Tahrir and possibly the Muslim Brotherhood and Jamaat Islami (although they have demonstrated more flexibility than HT) are intimately modern in that they appear to have inherited the colonial formula of elevating certain texts and making claims about their authoritatively “true” understanding. These claims about divining the “true” understanding of what God wants are often supported not by quality or authoritativeness of argument but by authoritarian power (Abou El Fadl, 2001). Many Islamists can be described as anti-modernity moderns. In the last two hundred years and more, Muslims have experienced an unprecedented onslaught, emerging mainly from Europe. One result has been a stereotype affecting not only the Western view but also Muslims’ self-perception, in which Islam is presented as a “closed, dogmatic, intolerant faith whose doctrines were fixed and unchanging, their authority deriving from texts not subject to interpretation” (Alam, 2004: 16). This is the phenomenon I have referred to as “essentialism,” and counterposed to postmodernism or to traditionalism. At the same time, one must acknowledge what Ebrahim Moosa would call “maximalist” views among “traditionalists” too, which are efforts to establish a particular traditional interpretation as hegemonic. Ideologies of political Islam and politics and Islam tend to be both monocentric and monolithic. Below, I provide some prominent examples. On the one end are monocentric and authoritarian visions that have a significant coercive element in their purview over individuals’ lives. Despite Islamists’ vocal rejection of Western tradition, Islamist ideologues are advocates “of an Islamic state to enforce Shari’a as state law is in fact promoting a European, positivistic view of law and a totalitarian model of the state that seeks to transform society in its own image” (Al-Naim, 2008: 20). This is especially prominent in some vanguardist approaches to social transformation. On the other end are “liberal” visions that do contain institutional safeguards for government accountability, but tend to remain monocentric in that they view rule-making as primarily a central state jurisdictional function. What is commonly termed “Muslim fundamentalism” connotes in part the view that “if Muslims fail to organize their worldly affairs in accordance with Islamic principles based on the revealed knowledge of the Prophet, they will not be appropriately positioned, epistemically, to give correct answers to questions pertaining to how they ought to organize their worldly affairs” (Sachedina, 2001: 58). The fundamentalist perspective, however, is not followed by an “objective evaluation of how rational decisions were achieved in applying Islamic norms during the glory days of Islam’s past” (Sachedina, 2001: 58). The consequence, according to Sachedina, is a severe epistemological crisis as seen in the dearth of religiously based practical guidelines for achieving normative goals through worldly methods and mechanisms.

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Sachedina concludes that there is low confidence in the tradition’s capacity to bring solutions to concrete problems, and in the adequacy of its modes of inquiry and argument (Sachedina, 2001: 58). The challenge is nothing less than “providing a systematic and coherent solution to the problem of the modern Islamic nation-state” (Sachedina, 2001: 59). Sachedina views Shiite fundamentalisms somewhat more favorably because the Shiite approach tends to privilege reason (Sachedina, 2001: 60–61). While these debates are important, what this chapter argues is not a comprehensive doctrinal claim about the right jurisprudential tools for dealing with modernity. Rather, exploring the potential for polycentric governance and mental models of self-governance is supported by normative elements that are consonant in the Islamic tradition, and these offer some possibilities as to how traditional understandings might support a polity that accommodates institutional heterogeneity. But one cannot escape the problem of having some reading of the tradition, and this chapter’s exploration is necessarily one such reading. Some further deliberation on the value of thinking about polycentric arrangements in light of other positions that have argued for secularism in Muslim contexts or for the roots of democratic orientation in Islamic contexts is offered below. Polycentricity, Islam, and Secularism In a thoughtful and far-ranging work, Abdullahi Al-Naim (2008) proposes an idealistic vision for a Muslim political order under a state that must in his view be secular. I take this essay by a well-known reformist and not uncontroversial Islamic studies scholar as one exemplar of positions on political Islam to better distinguish the polycentric perspective. While Al-Naim’s reasoning proceeds from a particular reading of tradition that may be contested by specialists in legal history, my focus is on the distinguishing the vision of a reformed Muslim polity from the polycentric perspective. Al-Naim’s view is informed by the belief that transparent and free political debate among well-intentioned people is a moral good, and religiously appropriate, and such contestation also highlights the legitimacy of variant interpretations of sharia. Norms of deliberative contestation are a virtue in self-governing contexts, particularly when grounded in an effort to sympathetically consider the perspective of the other, and in this sense they support a polycentric order populated by self-governing associational forms that operate on shared understandings of how they relate to other associations. Yet there are some important differences with Al-Naim’s proposal and the present discussion of polycentricity in Islamic context. Most importantly, Al-Naim’s approach seems tailored to a monocentric state. The polycentric model better serves developmental purposes in multigroup states, featuring



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heterogeneity not only with respect to social identities, but especially with respect to collective choice institutions. The polycentric approach embraces diversity by seeking to create a broad range of normatively valued states of affairs, as broad as possible in one reading (Aligica and Tarko, 2013). To better explain the polycentric model and its differences with the secular prescription, a partial review of Al-Naim’s arguments is an appropriate starting point. Al-Naim (2008) argues that religion has historically been separate from state in the Muslim world. Islam is political, but Al-Naim divorces “politics” from “state”: whereas politics involves the process of choosing among competing policy possibilities, the state is “complex web of organs, institutions, and processes” for policy implementation and must have a monopoly on the legitimate use of force (Al-Naim, 2008: 5). The “religious neutrality of the state” means that “state institutions neither favor nor disfavor any religious doctrine or principle” (Al-Naim, 2008: 4). To Al-Naim, the state’s religious neutrality is necessary for Muslims to fulfill their religious obligations; Religious compliance must be completely voluntary according to personal pious intention (niyah), which is necessarily invalidated by coercive enforcement of those obligations. In fact, coercive enforcement promotes hypocrisy (nifaq), which is categorically and repeatedly condemned in the Qur’an. (Al-Naim, 2008: 4)

Al-Naim’s concern about the negative impact state coercion may have on moral choice is widely shared, expressed by other Islamic intellectuals such as Abdel Karim Sourosh, and consonant with the starting points for a minarchist polycentric Islamic order. According to Lapidus, Al-Baqillani (d. 1013), al-Mawardi (d. 1058), and Ibn Taymiyya show the tacit acceptance for separation between state and religious institutions, despite the fact that this has not been recognized in popular Muslim discourse: in their view, “‘the state was not a direct expression of Islam, but a secular institution whose duty it was to uphold Islam; the real community of Muslims was the community of scholars and holy men who carried on the legacy of the Prophet in daily life’ (Lapidus 1996, 19)” (quoted in Al-Naim, 2008: 65). Al-Naim does not advocate the total divorce of public life from religion, and takes pains to separate “secularism” from “secular state” (Al-Naim, 2008: 9). The public life of believers, according to Al-Naim, will still have a place for Islam, but simply one that is separate from the central state entity: the “Islamic state” claiming to enforce sharia principles coercively is a “dangerous illusion,” but so is the notion that Islam can be removed from the community life of believing Muslims (Al-Naim, 2008: 6).

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This may suggest a “passive” rather than “assertive” secularism; the passive model permitting public displays of religiosity while prohibiting a formal religious test for office-holding, while the assertive model of secularism requires the state to take steps to remove the appearance of religion from the public sphere (Kuru, 2009). From Kuru’s perspective, Turkish secularism, in its Kemalist assertive form, is less about freedom of religion than about control of religion. To Al-Naim, the state and governance system is inherently secular. Muslims must always coexist with other communities (at different levels, including global ones), meaning that non-Muslims are “equally concerned about the states and governments they share with Muslims” (Al-Naim, 2008: 268). (A key issue in the architecture of polities is defining boundaries and understanding when someone is “in” or “out”; one answer may be that jurisdiction boundaries are given by contextual and evolutionary factors and are negotiated and renegotiated, and that jurisdictions rely on some real or presumed covenant behind their needed polity cohesion). To Al-Naim, religion’s influence on the polity needs be neither necessarily privatized nor abolished; rather its influence should be open to negotiation and depend upon free choice by all citizens, whether believers or not (Al-Naim, 2008: 268). Perhaps his personal statement provides the most convincing rationale for Muslims to support his system: “As a Muslim, I need a secular state in order to live in accordance with shari’a out of my own genuine conviction and free choice, personally and in community with other Muslims, which is the only valid and legitimate way of being a Muslim. Belief in Islam, or any other religion, logically requires the possibility of unbelief, because belief has no value if it is coerced” (Al-Naim, 2008: 268). Abdul Karim Sourosh has similarly suggested that coercion negates belief. Al-Naim asserts that all societies need a state for essential functions which involve “defending the realm against external threats, keeping peace and public safety within its territories, adjudicating disputes among its subjects, and providing whatever services it can for the well-being of its citizens” (Al-Naim, 2008: 50). What Al-Naim terms as the state’s functions overlap with some of what the polycentric depiction of the central state’s apparatus’ jurisdiction, particularly in defending the polity against external and internal threats. Implementing these prerogatives requires choosing among policy options, and requires a monopoly on legitimate use of force (although what is understood as “legitimate” or “reasonable” varies according to context and circumstance, culture and era; it is intersubjectively defined). Arbitrating and overseeing plural governance institutions in the polity may be the state’s key function. How this is to be accomplished cannot escape profound political aspects. It requires context-specific rules. The use of labels—including



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secularism, or “minarchist” or even “polycentricity”—may connote particular meanings that make them untenable. Consequently, prudence is required. Al-Naim’s vision remains implicitly monocentric, and does not tackle the problem of recognizing jurisdictions that may have particular religious institutions and identities. We might imagine a two-dimensional space with an axis of secularism and religious references in the central state jurisdiction, and another axis of the degree of polycentricity, suggesting secular monocentric, secular polycentric, Islamic monocentric, and Islamic polycentric possibilities. Pragmatically speaking, the effort to reduce or banish “Islam” from public discourse, however well-argued its intention, may spur a backlash that undermines the whole project. Particularly in polities where religion is salient and used in contentious mobilizations, this appears to be a gift to a revolutionary coalition. In contrast, the polycentric approach grounded in traditional religious arguments maintains a symbolic Islamic affiliation while in practice maximizing the space for diverse collective choice arenas, and potentially allows for both individual and collective expressions of social organizational impulses, whether or not they explicitly draw inspiration from religious sources. “Civic reason” and Convergence Discourse Al-Naim’s vision does not relegate Islam to the purely private domain, and in his depiction, Islamic principles can be considered and adopted as long as the reasoning process follows a civic criterion (Al-Naim, 2008: 138–139). The process by which Islam is included in state decision-making must be predicated on civic deliberation that deliberately avoids arguments couched in religious truth claims. The exclusive nature of absolute truth claims, which are evoked when sharia rationales are offered, has the potential to intimidate opponents and shut down debate. Open public deliberation requires the freedom to air different views, and Al-Naim expresses concern that citizens who voice unpopular proposals may be silenced by charges of impiety (Al-Naim, 2008: 7–8). Totalizing appeals to sharia, with their proponents’ implied self-arrogation to being instruments of the will of God, make it difficult for challengers to articulate an alternative without appearing to be positioning themselves against God. Difference in approach to Islam does not necessarily indicate bad faith on the part of some; it is possible for people to differ in good faith, and further, believing in one’s interpretation does not necessarily make it valid (Al-Naim, 2008: 48). However, explicitly “Islamic” rationales for policy agendas can undermine the process of public deliberation by stifling some perspectives. Consequently, in place of social deliberation that is explicitly couched in religious language, Al-Naim advocates for “civic reason” as a basis for proposals

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by citizens seeking to propagate policy choices. “Civic reason” (or what the philosopher John Rawls would call “public reason”) connotes the use of rationales for legislative proposals and public policy that are open to all citizens, regardless of their faith background or doctrinal orientation. While it is logical to say that there is room for debate only in those areas where this is not a nass qati’ (a definitive scriptural reference), the problem is that this “assumes not only that Muslims agree on which texts are relevant to a particular issue, but also deems that whatever consensus was achieved in these matters in the past is permanent” (Al-Naim, 2008: 13). In other words, there is in practice an actual or potential disagreement on what the appropriate religious ruling should be on practically any given question. To avoid becoming partisan, the state must be neutral on any given question of religious interpretation. Al-Naim’s emphasis on “legislation” belies the reality that much governance is not “legislated” in the formal processes of the state. The distinction between “public life” of the “believers” versus the formal organs of state underemphasizes that fact that the life of believers contains a great deal of actual governance. Al-Naim believes that his proposal should be assessed in terms of how well it allows most Muslims to live according to their religion (Al-Naim, 2008: 10). But a sharp distinction between “state” and “life” does not capture the diverse possible organizational forms that collective choice institutions might take within one polity, and thinking polycentrically requires considering the diversity of collective choice arenas as well as institutional heterogeneity in governing those arenas. It is arguable that for many collective arenas, more relaxation of the limits of discourse is appropriate, so that instead of “civic reason” we can consider “convergence discourse,” allowing a broader range of referents to religious or other doctrines. There is a pragmatic constraint to convergence discourse—to obtain support in a diverse context, a proponent of one doctrine must consider and make arguments relevant to other doctrines, and this necessary learning and relearning about the other may actually improve social solidarity and cohesion. Kogelmann and Stich (2016) argue that the very costliness of this type of pragmatically necessary learning is valuable as a solution to society’s “assurance problem,” that is, that while agents prefer to act according to the polity’s conception of justice, they will only do so if they are assured that others will do the same. According to this perspective, the more diversity there is in a society, the better the consequences of convergence discourse for solving the assurance problem, and thus for social order. State, Law, and Politics To Al-Naim, the term “Islamic state” is not a tenable label; “there is a permanent paradox in the competing roles of religious autonomy and authority, on



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the one hand, and the political authority, legal powers, and material powers of the state, on the other” (Al-Naim, 2008: 43). While I am sympathetic to this view in the case of a monocentric order, the pervasive reality tends to be polycentric, albeit dysfunctionally so, in many postcolonial Muslim countries. Because the image of “state” is different and more diffuse, with a political order viewed as a set of diverse, coexisting, and overlapping associational forms, the possibilities for a mix of Islam and state are different. Al-Naim opposes enforcing sharia as state law and policy because there is no uniform, settled understanding of sharia that can be enforced by the state, even within a school of jurisprudence (Al-Naim, 2008: 282). Furthermore, every understanding of sharia is necessarily a human interpretation, and should therefore not be enforced as state law while bearing the label “shari’a” or “Islam” (Al-Naim, 2008: 282–283). Abou El Fadl (2001) argues that some positions are “authoritative” and others are not, but this only creates a secondorder political problem: who decides when something is authoritative, and on what basis? Al-Naim’s approach circumvents this entire problem by requiring state neutrality. In Al-Naim’s view, seeking to implement a particular school of fiqh produces state sponsorship of a specific interpretation, instead of the traditional expectation under which rulers do not create nor control religious law but only safeguard it (Al-Naim, 2008: 16–17). Al-Naim asserts that the diversity of sharia interpretations means that it is impossible for the state to enact and enforce sharia as positive law without selecting from competing interpretations that are all considered legitimate in traditional jurisprudence (Al-Naim, 2008: 20). Al-Naim’s point is valid in the abstract: amid competing ways to understand how Islam should be applied in society, there is no external yardstick (outside of the political process of rule-making) by which to measure some against others and select one while discarding the rest. By presuming a monocentric order, however, Al-Naim greatly restricts the possible field of rule-ordered relationships, and this shapes his final judgment. In a polycentric situation, variant interpretations might be embodied in different jurisdictions, and given the right of dissociation, individuals could “vote with their feet.” A critical question to be negotiated in each polity is to what degree the right to dissociate is secured by constitutional understandings and by state intervention. A paradox remains in the effort to be a shariasupporting central state authority—particularly in using that religious role for political legitimacy—when the sharia is traditionally independent of the state, and given that picking one interpretation denies other interpretations. While not fully resolved in a polycentric order, the paradox is somewhat diluted where there is a range of collective governance centers across diverse jurisdictions. According to Al-Naim, the key features of the modern state are as follows. The state is a bureaucratic, centralized hierarchy of organizations

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differentiated to specialized institutions with particular functions; these nevertheless “operate according to formal rules and a clearly defined hierarchical structure of accountability to central authorities” (Al-Naim, 2008: 86). The state is distinct from other social organizations, including political, business, and civic associations. While there are “practical” interconnections, “state” is nevertheless distinct from “politics.” The state must have internal and external sovereignty, a monopoly over legitimate use of coercion, and be territorially defined and limited. Al-Naim insists that his distinction between the “state” and “politics” helps resolve the tension and ambivalence in history as regimes fell between the two poles: one which completely conflated Islam and the state (political and religious authority) and the other which completely separated religious and political authority (Al-Naim, 2008: 280–281). Al-Naim’s prescribes that “Islamic religious authority is separate from institutions of the state while being legitimately active in the political life of the community” (Al-Naim, 2008: 281). This requires that “the state does not itself become partisan to any specific position in the negotiation of the role of Islam and Shari’a in the community” (Al-Naim, 2008: 281). This religious neutrality is humanly impossible; “since the state and its institutions are not human agents, any action taken in the name of the state is in fact the action of the officials who control and operate the relevant organs of the state” (Al-Naim, 2008: 281). Al-Naim appears to rely on an ideal-type of a state. This may be because he is trying to define a theory that works in an abstract ideal form before actually matching it to messy reality. This approach does not address how the state, a “social fact” rather than a “brute fact,” is itself constituted, and seems to reduce the role of human agency in creating, maintaining, or adjusting institutions to something within externally set parameters. Al-Naim specifies that the purpose of his state/politics distinction is to “safeguard the integrity and continuity of state institutions, like the civil service and educational and health-care systems, and protect them from manipulation by an elected government, especially when it enjoys strong political support” (Al-Naim, 2008: 281). Al-Naim notes that this “will not be a permanently settled boundary in any society, as various political actors strive for greater power” but that this reality only “confirms the critical importance for the proper functioning of state institutions and the political process in general” (Al-Naim, 2008; 281). Proper functioning requires constitutionalism, human rights, and citizenship as the framework for civic reasoning (Al-Naim, 2008: 281–281). In Bloomington school terms, governance choices happen at constitutional, collective, and individual choice levels, and do not neatly translate into AlNaim’s description of “state” as a “constitutional level a priori decision,” with everything else as the institutions of collective choice at different levels. What Al-Naim calls “state” may be better described as an initial deep constitutional



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precondition for the central state jurisdiction (which in his implicit monocentrism is the political rule-giver over all “society”) followed by specific constitutional decisions regarding mechanisms of collective choice. From a New Institutionalist vantage point emphasizing polycentricity, the “state” (a term typically better specified as the “central state jurisdiction”), its internal subdivisions, its constitutional, collective, and operational choices, and its agents, as well as those of all other units of collective choice, are profoundly political in Harold Lasswell’s sense of politics as “who gets what, when, and how.” Al-Naim acknowledges that “the state is not an autonomous entity that can act independently of the human beings who are the real actors behind the veil of institutional authority” (Al-Naim, 2008: 89). Yet in Al-Naim’s view, the “paradoxical distinction” must be maintained in part because “the state determines which issues are to be debated and negotiated in the political sphere, at varying degrees of formality or process” (Al-Naim, 2008: 89). Most importantly, understanding “governance” as emerging only from formal rules is rather deficient and inadequate, and dangerously misleading. The danger is that starting with this ideal-type will lead to diagnoses of polity problems based on their weakness or lack of fit with the state. The result is that “weak and failing states” are destined for attempted cures that seek to make them more state-like, rather than better absorbing their existing governance realms into a well-functioning polycentric polity. Some degree of polycentricity usually exists in governance, although it often does not function to produce smooth collaborative governance and may be the source of substantial dysfunction. Acknowledging the polycentric starting point is more conducive to managing a polity that is functional and experiences productive rule-ordered internal relations. Crucially, overlapping and competitive functional jurisdictions are permitted and may be beneficial in key circumstances. A challenge for polity-designers is to identify the conditions that favor good governance outcomes rather than destructive rivalries, and capitalize on these. “Compatibilizing” institutions with governance objectives and the formal framework is a key task. Necessarily open-ended by nature, the effort must risk failure, and must incorporate social learning in a flexible and adaptive manner. Individual Rights and Collective Groupings From a pietist perspective that emphasizes individual autonomy, one laudable goal is a realm of conscience and public deliberation, in which people can select among competing interpretations according to their conscience. All Muslims have the obligation to pursue knowledge, particularly in those areas that concern them, and potentially to speak to matters of public concern. Ideally, the most authoritative interpretation (from the standpoint of knowledge

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and discernment of the religious sources) would win the most support. In the ideal, this would result a public realm that is deliberative, where the best argument, and not the most coercive power, wins. The reality, however, is a world where some have megaphones and others are silenced or speak in whispers. The polycentric polity implies that those people who are similarly minded should be permitted to retain or form their own community. Not all will be liberal, but must not be predatory or bent on conquest. With this proviso, there will likely be mini “quasi-states,” but they will be weakly autonomous, and within the purview of constitutional arrangements for the polity as a whole. Al-Naim’s emphasis is on personal choice: personal issues are to be chosen at the personal level. This emphasis, however, sidesteps a major concern in a polycentric context: the rights of collective groupings, or may be termed group rights or communal rights. According to Al-Naim, “civic reason” must be used to make public arguments because appeals to the “will of God” are difficult to challenge and preclude further discussion (Al-Naim, 2008: 29). Legislation presented as God’s will is difficult to resist. The reality is that “diversity of Shari’a principles means that whatever is enacted and enforced by the state is the political will of the ruling elite, not the normative system of Islam as such” (Al-Naim, 2008: 29). Where there are multiple jurisdictions, it is possible to imagine multiple forms of policy rationales—those that are in the form of civic reason, and those in the form of convergence discourse, including some that are couched in religious terms. The existence of different jurisdictions gives individuals opportunities for exit and choice that are different from those envisioned in a monocentric order. Over time, jurisdictions in a polycentric order that do not effectively serve their constituents run the risk of being outcompeted or substituted, and this has the potential to provide incentives for increased internal integrity in those jurisdictions. That increased integrity means more procedures for enhancing legitimacy and accountability, which implies more deliberation of policy choices than the discussion closure that Al-Naim fears happens when sharia is invoked. Constitutionalism To Al-Naim, constitutionalism is related to the “psychological motivation and sociological ability of citizens to participate in collective civic activities to promote and protect rights and freedoms” (Al-Naim, 2008: 104). This is similar to the “habits of heart and mind” and “science and art of association” that Vincent Ostrom viewed as key to the American political experiment’s success. While Al-Naim’s “civic activities” touch upon polycentric governance in an Islamic context, the Bloomington school differs in emphasis.



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“Civic associations” and overlapping, competitive jurisdictions differ in the degree to which the state appears hierarchical. In Ostrom’s version, the relatively horizontal state is interspersed with semiautonomous authority. This is well beyond formulaic checks and balances for protecting formal freedoms. While Al-Naim demonstrates awareness of associational behavior’s importance to polity success, his approach does not address itself fully to the constitutional level of analysis in a polycentric context. To the claim that Muslims will seek a monolithic sharia as the basic law, Al-Naim objects that Muslims pay homage to an inviolable sharia while in practice justifying departures by the doctrine of necessity, and thus sidestep the need to adapt the law to society. For example, traditional interpretations of sharia do not grant equal rights to non-Muslims, but many Muslims have accepted human rights norms as demonstrated by the fact that most countries have signed on to international human rights conventions. Al-Naim’s effort is “to promote an understanding of sharia that Muslims can actually live by, instead of maintaining an unrealistic ideal that is honored only in theory but never in practice” (Al-Naim, 2008: 107). Somewhat like Khaled Abou El Fadl (2001), Al-Naim argues that the challenge is about “translating the essential justice and practical implications of historical models, not about replicating them under radically different circumstances” (Al-Naim, 2008: 107). In other words, a broad, abstract, and eternal value should guide ideas about what is “Islamic.” Some have advocated institutionalizing the Quranic injuction for shura, or “consultation on public affairs,” as a constitutional measure; this was the case among Islamists belonging to the Muslim Brotherhood-affiliated Islamic Action Front party in Jordan in the mid-1990s, for example. Al-Naim describes shura as “neither binding nor practiced in a systematic and inclusive manner” (Al-Naim, 2008: 107). The Quran does not explain how disagreements are to be resolved or how to carry out the consultation in practice. The view that prevailed in the Ummayyad and Abbasid dynasties was that the rulers had the duty to seek advice but were not bound by it. To Al-Naim, there has been a “lack of practical institutional arrangement for peaceful political dissent and orderly transfer of power to freely selected leaders throughout Islamic history” (Al-Naim, 2008: 108). A polycentric political order, particularly its minarchist variant, suggests one possible mechanism for dissent when voice is suppressed: the ability to exit. This is a matter of “voting with one’s feet.” Religious Qualifications A common assertion is that “Islam” relegates religious minorities to secondary dhimmi status. Al-Naim agrees: “According to the dhimma under

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traditional interpretations of shari’a, when Muslims conquer and incorporate new territories through jihad, People of the Book (mainly Christians and Jews) should be allowed to live as protected communities upon submission to Muslim sovereignty but cannot enjoy equality with Muslims” (Al-Naim, 2008: 31).5 Al-Naim argues that such a position is untenable in the modern world. When the Taliban tried to enforce dhimmi rules, they were widely condemned across the Muslim world; only four out of 44 countries recognized them. Failure to enforce dhimma guidelines are justified by the doctrine of necessity (darura), but to Al-Naim, that is untenable because darura is short term and limited (Al-Naim, 2008: 31). Opponents of dhimma “cannot invoke necessity as a permanent justification for their failure to enforce the dhimma system” (Al-Naim, 2008: 31). Al-Naim asserts that “even the most ardent advocates of an Islamic state do not seriously consider applying it in the present local and global realities of Islamic societies” (Al-Naim, 2008: 31). Ibn Qaym al-Jawziyya (d. 1350) and al-Ghazali (d. 1111) both advocated an Islamic state, yet “were clearly aware of the importance and indeed the necessity of separating the religious dimension of any individual from his function or role in the state, which must be entrusted to those who are best qualified to accomplish the task” (Al-Naim, 2008: 50). The state had pragmatic functions that needed skill rather than religious piety; according to Ibn Taymiyyah, “the selection of each public officer or magistrate should be based on the pragmatic requirements and the individual’s capacity to comply with the ethical and professional code of the job being assigned, not considerations of religious piety.” Ibn Taymiyyah pointed to the example of the Prophet’s appointment of Khalid bin Walid to military command despite dissatisfaction with Khalid’s religious behavior (Al-Naim, 2008: 49). Political authority, according to Al-Naim, requires skills in coercive power and effective administration for the public good. Such skills are able to be assessed more objectively than piety, which typically requires confidence based on personal experience (and is difficult to ascertain at long distances or in urban centers); “This sort of subjective value judgment can best be made through local routine interactions, which are difficult for large numbers of people to have with a single religious leader, especially in urban centers or at great distances” (Al-Naim, 2008: 50). The key here is not that political leaders cannot be religious, but that there are two distinct authority types, even when the same person exercises them. CONCLUDING NOTE ON CHALLENGES AND BOUNDS This chapter has sought to identify symbolic resources from traces in the Islamic tradition that would support a polycentric order associated with a



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nondominance norm. These sources support mental models suited to functioning polycentricity in a context where Islamic symbols are valued. This matters because the widespread monocentricity in postcolonial states in Muslim contexts has been associated with governance failures. The minarchist polycentric approach generally fits with a separation of the central state jurisdictional authority from comprehensive doctrinal endorsements with respect to religion in Muslim societies by proposing an Islamic traditionbased rationale according to which the role of the central state is curtailed. Yet this is not as exclusive in terms of invocation of religious rationales in collective choice arenas as is the more assertive form of secularism. Instead, by supporting heterogeneity in the form of diverse institutions and associational arrangements, varied readings of religious tradition and other sources of valuations coexist. The success of such coexistence ultimately depends on shared understandings among agents in the polity. Some concerns include how to prevent agents in the polity from employing dominance strategies and undermining self-governance in the polity. This is not unique to polycentricity in an Islamic context; polycentric orders are generally vulnerable to dominance strategies and require mechanisms and ultimately covenantal civic virtue in order to resist and thrive. A further issue that I briefly turn to at the end of this book is the danger of the loss of meaning as symbols are deployed strategically; this profound problem is faced by all societies attempting to sustain self-governance. Among challenges to viability are three general categories of threats to the polycentric order, which in practice often blur or overlap with each other: internal predators (a domestic faction or jurisdiction seeking to transgress the boundaries that support the jurisdictional integrity and autonomy of actors), external predators (foreign powers that seek to conquer or undermine the polity), and the predatory state (a central state that abuses its position to appropriate resources and undermine other jurisdictions) (Malik, 2011). Each can potentially undermine the polycentric polity. These are equivalent to the problem Shivakumar (2005) identifies as overstepping of bounds by “adjacent problem-solving units.” It may be that a powerful external threat pushes a polycentric polity to coalesce into a more unitary fighting machine for effective defense and war-making. If that is the case, then a polity in a “tough neighborhood” (facing severe or existential threats) will likely not have the comparative luxury of experimenting with a thoroughly polycentric order, although it may have some elements of polycentricity. The polycentric orientation does not rely on exclusively liberal norms among the citizenry; illiberal jurisdictions can be accommodated within certain bounds. It is possible (as happened under the Ottoman millets) that individuals within the jurisdiction would have their personal freedom severely restricted by leaders. The exact balance point—the problem of sorting out

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when an individual should have a meaningful exit option from within a community—demands further deliberation within specific contexts. One step in resolving this clash of rights is a constitutional right of dissociation for all individuals from specific jurisdictions, as suggested by Kukathas in his critique of Kymlicka’s proposals (Kukathas, 2004). The success of the polycentric order depends on a vigilant citizenry habituated to associational life. Citizenship habits are vital if the experiment in self-governance and polycentricity is to be sustained. Covenant-like understandings and other ethical injunctions that generally prescribe civic virtue are amply found in Islamic tradition. Yet the religious guidelines alone cannot guarantee outcomes. By teaching logics of appropriateness, social conditions help structure individual behavior, and the behavior of individuals in turn shapes the social situation. Thinkers as diverse as Ibn Khaldun and Tocqueville emphasized the role of culture in interaction with other factors such as manners, human nature, and place or ecological setting (paraphrased from Ostrom and Ostrom, 1997). The hope is that polycentricity in Islamic context would sustain an orientation to a norm of nondominance. The polycentric constitutional orientation would “crowd in” civic virtue (Malik and Marshall, 2017), and in an Islamic context this could mean religious civic virtue. To examine potentials and pitfalls through a case, and the context and deliberations that concern institutional choice at constitutional and other levels, the following chapters consider aspects of the genesis and development of Pakistan. NOTES 1. The normative yardstick pointed to by Thomas Hobbes in his “path to peace” is also the Golden Rule. 2. Sometimes translated, as “sincere advice,” a prophetic hadith states “the religion is naseeha […] to Allah and His Book, His messenger, the leaders of the Muslims, and their common folk” (recorded in the collection of Muslim). 3. This refers primarily to the Sunni context; in modern Twelver Shiism, the pontifex is restricted to mujtahid scholars, typically those with a seminary certification. 4. Alam refers to Hajji Shams al-Din Muhammad Husain Hakim’s Intikhab-I Shayista Khani, itself a recension of Taqi al-Din Muhammad bin Shaikh Muhammad al-Arjani al-Tushtari’s Jawidan Khirad, which itself was a Persian translation of Ibn Miskawaih’s al-Hikmat al-Khalida (later akhlaq literature) as echoing “Nasirean ethics” (Alam, 2004: 70). 5. Al-Naim’s assertion of a near-consensus sharia position on the disputed issue of minority rights is incongruous with his prior emphasis on the diversity of sharia rulings. Tactically, this choice favors his argument that reformed ideas of citizenship are needed rather than rationales for temporary sharia accommodations.

Chapter 4

Polycentric Metanorms and Islam in Pakistan

That Pakistan, founded on the two-nation theory distinguishing Muslims from Hindus, would be “Islamic” or “Muslim” in some way was a prominent sentiment. The appeal to the subcontinent’s Muslims based on religious identity was significant to Pakistan’s point of departure as a political project. The specific character of the polity was up for debate, such as whether it would be secular or religious. Who would determine what Islam meant in constitutional choice, how that determination would be reached, and how that would be implemented, were profoundly political and heavily contested questions. This chapter explores elements that relate to polycentric metanorms around the elite national self-conception of Pakistan, particularly as it relates to religious identity in the lead-up to and early years of the polity’s formation. I proceed to describe prominent aspects of the struggle between executive and legislative authority. Polycentric understandings have appeared recurrently, as have monocentric impulses, providing a mixed picture overall. To some, Pakistan’s crucial challenge has been to manage the role of religion in politics, and its problems are traceable to a dysfunctional path in this arena. To the Pakistani political scientist Mohammad Waseem (2006: 104), the battle for parliamentary supremacy has been at the heart of Pakistan’s constitutional struggles, and the most contentious issue—what I would call the tug and pull between executives and legislatures. Yet others stress the relationship between the center and units, and continuing, unresolved grievances. Across different assessments, three key issues emerge in formal constitutional contestation: the role of Islam, the relationship between center and units, and executive power wielded by the civil and militarybureaucratic apparatus in contrast to that of representative bodies. My purpose is not to comprehensively review the literature on these three areas. Rather, my effort is to consider potentials for polycentric metanorms, and 131

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to make interpretative reference to some debates and inquiry in these areas and beyond insofar as they relate to the goal. In that process, this chapter touches on understandings of Islam and rule-diversity, and to the struggle between executive, legislative, and to some degree judicial branches. The next chapter looks at collective choice units (following the Type I, II, and III categorization described in Chapter 2) their interrelation, a broader conception than the usual way “center-unit” relations are conceived. As described in Chapter 1, the “meta-constitutional” level describes shared understandings that direct and shape constitutional-level institutional arrangements in a polity. The appeal to Islamic identity and tradition was important for polity design in Pakistan, and tradition provides a rich repertoire of principles and shared understandings on which institutional responses to contemporary challenges may be based. Such appeal is also embedded within the Pakistani national narrative as the polity’s lineage rests in part on the rationale of “Islam in danger” and the two-nation theory. This chapter considers the appearance of polycentric metanorms and monocentric rivals in particular texts on the nature of the polity, particularly as it relates to religion: Wilfred Smith’s contemporary assessment of what Pakistan’s “Islamicness” implied, the Munir Commission’s investigative report into a major crisis of polity membership that presents a window into the constitutional-level contestation, and a brief review of the 1956 Constitution, a product of the Constituent Assembly’s long deliberations. I then turn to the struggles between executive, legislative, and judicial branches of official jurisdictions, which have been significant in shaping prospects for polycentric order, and in generating formal constitutional instability amid a somewhat paradoxical culture of “constitutionalism.” The “Rule of Law” and the “State” This book is not a work in legal history, jurisprudence, or constitutional law. Some reference to these, however, is important to the degree that it informs an interpretative assessment of polycentric metanorms and constraints upon them. The “rule of law” is commonly considered an essential part of modern democracy. In Friedrich Hayek’s well-known formulation, under the “Rule of Law, general principals [are] laid down beforehand, the ‘rules of the game’ which enable individuals to foresee how the coercive apparatus of the state will be used, or what he and his fellow-citizens will be allowed to do, or made to do, in stated circumstances” (Hayek, 2008 (1944): 10), as compared to another arrangement where the authority has the power to do what it thinks fit. This ideal-type distinction fits well into ideal-type of “state” and



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“society.” But as a guide to empirics from a New Institutionalist perspective, it is insufficient. Much as Vincent Ostrom repeatedly interrogated the concept of “state,” a Bloomington school perspective would likely unpack “the law” into its multifarious context-specific meanings that include both formal and informal elements and intersubjective understandings specific to particular action arenas. In general, there is a tension between law as command and law as rules grounded in consensus. In Pakistan, it is a common perception that the rule of law is weak. Yet what that means in practice requires further elaboration. For example, it could mean that the command is not enforced evenly or effectively, or that rules are not grounded in consensus. In general, constitutional law and related legal process are not usually monotonic in how they are implemented in society. Further, standards of reasonableness and informal understandings shape how the law is construed as a practical matter. Selective constitutional application and interpretation according to political interests can provide glaring evidence of an ineffectual basic law. Declarations of “emergency” followed by coercive actions by central state jurisdiction authorities (on behalf of the community or national interest, the authorities typically claim) introduce a significant element of uncertainty about the rules of the game and the possibility of arbitrary actions by authorities. In such situations, citizens face severe curtailments to their ability to self-govern as they have little security in their choices, and consequently little incentive to invest energy and resources into associational activity. Even in a polity featuring frequent and long-lasting emergency interventions, “the law” and precedent can be sticky; once interpreted and implemented, it becomes difficult to ignore entirely, and can structure future choices and expectations. At some level, a political administration has to work within an inherited order to attain some legitimacy. Complicating things further, “the constitution” and “the law” are powerful symbols deployed frequently in political rhetoric. The malleability of constitutional interpretations to powerful interests raises the question of what absolute bounds a written constitution imposes. The paradox of constitutional restraints emerges from the fact that since people exercised choice to impose bounds, they can exercise choice to remove those bounds. From an institutional analysis perspective, the formal constitutional law’s efficacy as a source of rules-in-use depends on whether there is shared understanding and enforcement (monitoring and sanctioning) among participants in a particular action arena. Efficacious constitutions are likely to be those that respond to problems agents have experienced. Yet changing circumstances cannot be fully anticipated, making constitutional choice an ongoing activity. In general, the locus of rule enforcement can vary. Rules can be

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enforced by an external third party, imposing sanctions on rule-breaking; through second-party enforcement, when participants in the polity enforce rules on each other, or through first-party enforcement, where agents police themselves through normative commitment, for example by feeling a sense of guilt from rule-breaking. “Powerful” in this context can be understood as describing those who are capable of withstanding, deterring, or repelling attempts to impose third-party or second-party sanctions for rule-breaking behavior. In practice, the written constitution imposes little bound on the ability of powerful actors to withstand unfavorable constitutional arguments, and to manipulate the constitutional understanding or suspend or rewrite it. This constitutional process discussion is based partly on the formal process of decision-making around Pakistan’s written constitution, including prominent debates over the role of Islam, the power of the executive and legislative offices, and the relationship between the center and the units. Yet these formal debates cannot be understood in isolation from the lived reality of collective choice in Pakistan. To the extent that we understand constitutional choice as shaping who can make what collective choices for Pakistan and how, we must also carefully consider the unwritten but widely acknowledged special determining roles played by the military in Pakistan, the civil administrative bureaucracy (to a lesser extent), and to a variable extent by certain small elite coalitions. These form important members of winning coalitions, supporting the political survival of incumbents (Malik, 2011). Under political survival assumptions (i.e., that challengers and incumbents, irrespective of ideology, seek to attain and retain office), those pressing for devolution will do so to the extent that it serves their political survival goals. Yet the persistence of these interventions, although indicated by some developments in Pakistan’s early years, is more apparent in hindsight with many decades of historical traces. Part of the value in emphasizing observations and deliberations from before the first military coup is to get a sense of how polycentric metanorms (or consonant themes) appeared in some observations and interactions at the time. Many critical issues in the role of Islam and in the interactions of executive, legislature, and judiciary emerged in this period. There is some reference to later developments toward the end of this chapter, as well as significant reference to the later period in the following chapters. THE PAKISTANI CONTEXT In this brief section, I introduce the Pakistani setting as it relates to meta-constitutional and constitutional-level analysis, and review some constitutional issues that introduce the backdrop for the subsequent discussion in this and



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later chapters. As described in Chapter 1, the Bloomington school emphasizes constitutional rules-in-use in a given action arena—that is, the institutions that structure collective choice activity within that arena. The constitutional rules-in-use relating to the central state jurisdiction and its interrelations with other units of collective choice may or may not be captured in a formal constitutional document. Rather than an effort to comprehensively map constitutional rules-in-use, the major emphasis in this project is on metanorms that shape constitutional rules. Yet there is simultaneity in the relationship between metanorms and constitutional rules-in-use. Metanorms are not an exogenous factor. The interplay of formal and informal collective choice units and enforcement of institutions shapes the constitutional rules-in-use, which in turn have an impact on metanorms. There has been considerable contestation over metanorms in Pakistan, as well as change in constitutional arrangements. Jurisdictional Integrity in Pakistan In language from Skelcher (2004), jurisdictions have “internal” integrity, which refers to their legitimacy and accountability before the populace they are meant to serve, and the degree to which their existence is seen as being in the public interest, and “external” integrity, which is their level of autonomy recognized by outsiders. In Pakistan’s case, the newness of the state as an overall jurisdiction had two implications. There was some optimism and excitement about the new entity. The new state had a weak administrative and fiscal apparatus, and consequently struggled to provide governance. Given low political capacity, the new state was bound to suffer problems of internal integrity. The units making up the federation had varying histories as jurisdictions, some being stronger and better defined than others. Jurisdictions also have “external” integrity, meaning the degree to which their autonomy is recognized by outside actors. Given Pakistan’s extensive use of outside transfers, in loans, aid, and remittances, it is appropriate to consider the role foreign actors might play in winning coalitions. One recurrent issue in Pakistan has been over the central government’s powers with respect to the units, and this falls into the realm of external integrity of those subcentral units. On Pakistan’s western border, the long-running dispute over the border with Afghanistan, inherited with the British-era Durand Line, has taken a different form with the apparent ease with which tribals and irregular combatants have crossed back and forth. The unsettled national de jure borders and the de facto divergences from official arrangements were also manifested in Pakistan domestic jurisdictions. In a weak polity, jurisdictional integrity remains subject to question.

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The status of Kashmir can also be interpreted as a matter of external integrity; Pakistan and India both claimed jurisdiction over Kashmir and the issue remains unresolved. An interesting development is the recognition of the dividing point of de facto power of the two sides, the so-called military “Line of Control,” as a possible de jure border with legal recognition between the two sides. Kashmir is central to Pakistan’s formative experience and rivalry with India, and there is a critical question of the role of facts on the ground in determining jurisdiction. Pakistan has persistently claimed jurisdiction over Kashmir, or a process that may lead to such jurisdiction, and described the Indian presence there as an illegitimate occupation. One critical question from an international negotiation perspective is whether and to what degree to accept Kashmir’s Indian-held status in a de jure fashion. This raises a challenge for Pakistan because it suggests that de facto pressures can alter de jure realities, and encourages others to change “facts on the ground,” or to use “brute facts” to drive “institutional facts.” Kashmir can be interpreted as a dispute over accession complicated by fait accompli and the active, overt engagement of outside powers. Colonial Legacy Understanding constitutional choice in Pakistan at independence and beyond requires historical context for the Indian subcontinent. Pakistan’s inherited constitution did not represent facts on the ground; it was an import. “The inherent institutional imbalance between bureaucracy and politicians in Pakistan made a mockery of such constitutional provisions as parliamentary sovereignty, procedural and substantive aspects of the legislative process at the federal and provincial levels, and the principle of the government’s accountability to public representatives” (Waseem, 2006: 104). The history of British India is instructive. India has been interpenetrated for centuries. There were invasions from outside, and cultural intermixings. The East India Company brought with it a formal uniform approach to law. Traditional practice in the Mughal courts did have assigned functions, such as the Mohtasib (who guarded public morality), and tax collection. But the effort to bring about a uniform public Islamic law actually imposed standardization and limited the great flexibility that traditional jurisprudential practice allowed. To British eyes, traditional local judges’ actions were capricious or arbitrary. But that local authority also may have helped accommodate diverse circumstances and associated rule-diversity under an Islamic frame. There were several Acts that were designed to reflect the changing relationship between Britain, the East India Company, and India. Britain gradually asserted its sovereignty, after initially giving the Company the right to make some laws, then allowing it to make war or peace, and then allowing it to



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essentially be a government, before displacing it. In the process, the Mughal empire was decaying and falling apart, and princely states were divided and picked off one by one (Khan, Hamid, 2009: 4–8). A key factor is that the British did not extract much in direct taxes in India, which might have caused instability and rebellion, and even ran deficits. Financial benefit came from managing currency and credit in use by British and Indian commerce (Nasr, 2001: 41). Pakistan inherited what was “Northwest India.” The Pakistani state inherited not only the colonial pattern but also the intermediaries the British relied upon. As with India, British rule was “shaped by trade rather than revenue extraction” (Nasr, 2001: 41). British rule was not focused on building extractive power and political capacity; it instead “relied on intermediaries to establish control” (Nasr, 2001: 41). These “intermediaries” later on became “local strongmen” (Migdal, 1988), powerful figures and entities separate from the national government and not holding formal office, but nevertheless vital veto holders, gatekeepers, and enablers in helping national policies to succeed or fail. Examples might be landed elites (which help maintain rural control) and tribal leaders in NWFP (who enforce customary law). The British feared the Russian threat to North West India, and accordingly sought consent to rule through patronage. “Stability” mattered more than trade and revenue here (Nasr, 2001: 42). It seems that perhaps the Pakistani government’s ongoing trouble in enforcing central state authority in this region has more to do with the fact that the people here have never been “subdued,” and only been fought or wooed. The perceived Russian threat was echoed by the geopolitical analysts in the later twentieth century who speculated that when the Soviet Union invaded Afghanistan, their real design was on Pakistan, and ultimately to a warm-water port. The British legacy may have been important because it created the “mass public” that would eventually push for societal input into state policy ­(Waseem, 2006: 102). Waseem asserts that the military, bureaucracy, judiciary, police, and magistracy, as well as constitutional provisions including “writ jurisdiction,” equality before the law and equal protection from the law, as well as fundamental rights, emerged under British rule (Waseem, 2006: 102–103). In other words, the colonial legacy has shaped many political devices, understandings, and expectations. Nasr (2001) suggests that political conditions and constraints at the outset laid the basis for future strategic problems faced by the Pakistani state as it tried to assert central authority. In brief, the state was based on consent and support from tribal leaders and landholding rural elites (the so-called “feudal class” that sometimes comes up in populist rhetoric in Pakistan). These formed an oligarchy that was unwilling to cede more authority to the central state. The landholding interests eventually merged with (or took over) the

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Muslim League, and this further bolstered their power, which was already strong at the regional and local level. Patronage politics in Pakistan has many consequences, and a key one is that tribal and landholding elites hold sway over many voters and can mobilize them; they can also dole out favors and veto policies and therefore must be considered. Pakistan’s inability to develop political capacity and extract a greater portion of society’s resources, either by agricultural taxes, or by agricultural price controls, may be traced to the initial state bargain with agricultural elites, and their effective ability to veto changes. There is a wider class interest too: the privileged Muslim elites in India distrusted Nehru’s socialist rhetoric, and the Congress party’s economic policies. Power in Pakistan was concentrated in the military and the bureaucracy, and the state quickly had to turn to tribal leaders and agricultural elites, and also to “Islam” as a mobilizing symbol in the effort to justify, rationalize, and generate support for, and defuse opposition to state policies. Pakistan’s extreme fragmentation—with the majority in East Pakistan, ethnically different, and many other ethnic groups in West Pakistan—further made the “turn to Islam” necessary: the alliance between the state and the oligarchy impeded the state’s efforts to either effectively pursue development or satisfactorily contend with inequities in distribution of resources through state institutions, forcing the state to instead look for alternate channels for alleviating poverty and to even contemplate a different structure of authority through which to expand its capacity to rule. The result has been that the state turned to Islam and its social institutions to achieve both ends. The turn to Islam in Pakistan is therefore a product of the attempts by a state that is held captive by the oligarchy to augment its power and autonomy of action. (Nasr, 2001: 58)

And here-in lies a substantial political challenge—deploying “Islam” in a visibly instrumental way detracts from the possible reinforcement of a foundational metanorm by appeal to normative religion, because religious symbol instead becomes a political propaganda ploy. The success of a polycentric metanorm depends in part on a degree of trust and reciprocity undergirded by shared mental models influenced by a national self-conception and cultural backdrop tied to religion. The instrumental use of religious symbol potentially threatens this foundational trust. The need to generate support amid the lack of a broad-based nationalist movement meant that there were more “veto holders” in Pakistan, increasing the “conservative” bias in the state policy-making machinery (a general point regarding constitutional arrangements, made, for example, by Spruyt (2005)). More veto holders can increase the collective action problem for challenges to the status quo. International donors and lenders (those who provide the Pakistani government with resources of rule, such as aid transfers) are also



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potential veto holders, because they can threaten to tighten the purse-strings if the Pakistani government pursues policies the funding sources find sufficiently disagreeable.1 NATIONAL SELF-CONCEPTION National identity, particularly in a context like Pakistan where there was not a unifying mass-mobilizing party in the territories that formed the country, is a weak notion, likely to contain many divergent strands. The label “national self-conception” may give an impression of a singular national identity that is widely subscribed to by the society in question. My effort here is to acknowledge contestation and its role in strategic learning, while describing one thread in national self-understanding that has not received explicit attention: shared understandings that acknowledge both Islamic orientation and polycentricity. Put together these suggest at least a latent polycentric metanorm, albeit a heavily contested one. This indicates potentials (and pitfalls) in the process by which cultural endowments, national self-conception, and deliberation and learning may productively accommodate institutional diversity in a weak state context. Two formal declarations provide some support for the notion of a polycentric metanorm amid an Islamic national self-conception in Pakistan: the Lahore Resolution and the Objectives Resolution. The Objectives Resolution was also introduced in Chapter 1 and is further discussed below. First, more on the Lahore Resolution is helpful. The Lahore Resolution Sometimes called the “Pakistan Resolution,” the motion by Mr. Fazlul Huq, Chief Minister of Bengal, and unanimously approved at the Lahore meeting of the All-India Muslim League on March 24, 1940, suggested a unit-based polycentric governance, either in separate states, or in a weak confederation (the units were presumably to be Type I jurisdictional entities—fixed territory, general-purpose authorities, as described in Chapter 2): Resolved that it is the considered view of this Session of the All-India Muslim League that no constitutional plan would be workable in this country or acceptable to the Muslims unless it is designed on the following basic principles, viz; that geographically contiguous units are demarcated into regions which should be so constituted, with such territorial readjustments as may be necessary, that the areas in which the Muslims are numerically in a majority as in the northwestern and eastern zones of India would be grouped to constitute “Independent

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States” in which the constituent units shall be autonomous and sovereign. (Hamoodur Rehman Commission, Chapter 2, Section 16)

A common argument is that the Muslim-majority provinces already had significant Muslim control, so they were not as supportive of Pakistan, and in order to be brought into the new arrangement, had to be promised substantial and significant autonomy (Noman, 1990). The Lahore Resolution went so far as to refer to them as “sovereign and autonomous” states, part of the principles that underlay the only “workable” constitutional plan and “acceptable to the Muslims.” This can be read simultaneously as an understanding of the pragmatic need for conceding authority to the units in order to hold the federation together, but also according to what “the Muslims” in this context considered appropriate and acceptable. Together these elements suggest a national self-conception grounded in a confederal or weakly federal metanorm. This lineage provided one legitimating rationale for autonomy demands of the Awami League, which was based in East Pakistan. The prominent Awami League politician (and later Bangladesh founder) Mujibur Rehman interpreted the 1940 Lahore Resolution as envisioning two sovereign independent States. During the presidential elections of 1964, Mujibur Rehman “released his Awami League election manifesto calling for ‘two economies’ and a constitution based on his interpretation of the Lahore Resolution of 1940, which he claimed envisaged two sovereign independent States” (Hamoodur Rehman Commission, Chapter 5, Section 7, p. 47). According to the Hamoodur Rehman Commission, a later modification at a meeting of the Muslim League changed the Lahore Resolution’s implication to affirm that a single sovereign Muslim state was the goal. The Lahore Resolution was modified on April 1946 at a Muslim League legislators’ convention in Delhi; the modification stated that the zones comprising Bengal and Assam in the north-east and the Punjab, north-west frontier province, Sindh, Baluchistan in the north-west of India, namely Pakistan zones where the Muslims are in a dominant majority, be constituted into a sovereign independent state and that an unequivocal undertaking be given to implement the establishment of Pakistan without delay. (Hamoodur Rehman Commission, Chapter 2, Section 17, p. 24)

The Hamoodur Rehman Commission further asserts that “Muslim League legislators from Bengal fully supported this amendment and henceforward this became the basic principle of the League’s stand—Pakistan as a single Muslim State and nothing less” (Hamoodur Rehman Commission, Chapter 2, Section 18, p. 24). In the Commission’s understanding, the Lahore Resolution



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was modified into a demand for a single sovereign state. Yet the Lahore Resolution remained an argument made by Mujibur Rehman and others seeking greater autonomy for East Pakistan. (At least at the outset, Mujibur Rehman’s position may have had a tactical aspect to it, rather than a purely ideological commitment to a fully independent Bangladesh. As a holdout bargaining strategy, it was potentially a way for Mujibur Rehman to secure a better outcome for his own political future in the federal center or in a maximally autonomous East Pakistan. Yet this illustrates the substantial potential for interplay between strategic interests and interpretive choice regarding core texts). According to Liaquat Ali Khan, Jinnah’s successor and Pakistan’s first Prime Minister, Pakistan was to function as “the laboratory of practical Islam.” (Burks, 1954: 552). In introducing the Objectives Resolution, Liaquat Ali Khan declared that Pakistan was founded for “Islam” and to allow subcontinental Muslims to live in accordance with Islamic teachings, serving an exemplary function: Pakistan was founded because the Muslims of this Sub-Continent wanted to build up their lives in accordance with the teaching and traditions of Islam, because they wanted to demonstrate to the World that Islam provides a panacea to the many diseases which have crept into the life of humanity today. (Choudhury, 1955: 589)

Choudhury describes enthusiasm for an “Islamic” state that left definitional questions unanswered. Conflict arose between the ulama who sought a “full-fledged Islamic state” and modernizers who sought a state compatible with democratic constitutionalism. Choudhury argues that the ulama saw “Islam” as a perfect system that required emulation; this view echoes what Ebrahim Moosa described as an “ossified,” static understanding of tradition, as opposed to a more dynamic one (Moosa, 2005). In the static understanding, certain established positions on key questions are replicated as if they are absolutes that can be applied with minimal adjustment to new and changing circumstances. In the more dynamic version, tradition is understood as an approach and a style of argument, and is open to questions that are commensurable to the tradition; there is change in specific institutional arrangements as social questions and conditions shift. Founding figure M. A. Jinnah had resisted attempts to commit the Muslim League to an Islamic constitution for Pakistan; in the Muslim League’s April 1943 Delhi Session, a draft resolution declared that the Quran and governance example of the four caliphs would be the basis for Pakistan’s constitution. On Jinnah’s insistence, this was withdrawn (Noman, 1990: 21, endnote 3). Mohammed Iqbal, the poet-philosopher of the Pakistan movement and

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“the first thinker who conceived of the possibility of a consolidated North Western Indian Muslim State” (Munir and Kayani, 1954: 201), sought to reassure Hindus and Sikhs during his presidential address to the Muslim League in 1930, saying: Nor should the Hindus fear that the creation of autonomous Muslim States will mean the introduction of a kind of religious rule in such States. The principle that each group is entitled to free development on its own lines is not inspired by any feeling of narrow communalism. (quoted in Munir and Kayani, 1954: 201)

Based on this quote on Iqbal’s idealism one can debate whether Iqbal’s position was “secular” in the sense that Al-Naim (2008) might use the term, or closer to the more polycentric view of a general Islamic identity featuring multiple, coexisting communities reflecting different sensibilities, while retaining tolerance for each other. My view is that the statement can be read in both ways. Binder (1961) argued that the 1940 Lahore Resolution could be explained without reference to Islam, though not without reference to Muslims (Noman, 1990: 4). Many of India’s Muslim religious leaders opposed the demand for Pakistan because a Westernized elite was likely to resist a theocracy, and because the religious leaders did not anticipate attaining political authority in Pakistan and therefore had little to gain from supporting the movement (Noman, 1990: 4). Indian Muslim religious leaders may have feared losing their authority in the new state. This implies that they enjoyed some influence in their native territory in India and possibly hoped that they would continue to retain influence in a secular order, perhaps because the Indian state was weak, because they had stature as representatives of Islam, and because they would retain governance authority outside the formal state apparatus (such as in informal institutions which empowered them as conflict adjudicators) or in “personal law” arenas (such as marriage, inheritance, and possibly some contracts). Maulana Maududi, who Omar Noman controversially labels “the leading Muslim theologian in India,” asked why a united India was problematic if Pakistan was to be a secular state (Noman, 1990: 3). This question presumes that Muslim material interests were not sufficient reasons for partition, a violent rupture where lives and property were lost. For Maududi, there was a pressing moral interest in the role of religion. Maududi asserted that the “case of Pakistan is different from other Muslim countries . . . this is so because it has been achieved exclusively with the object of becoming the homeland of Islam” (quoted in Noman, 1990: 6). A prominent early voice in the context over Pakistani constitutional metanorms stressed its “Islamic” essence, and that begged the question of what form the Islamic state would take. Maududi



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divided Muslims into three categories: the majority were the religiously devoted but uneducated Muslims (who the Muslim League mobilized on a religious basis). Westernized elites who favored a secular state were a second category. Informed Muslims were a small minority, but this category was supposed to produce a religious dictator who would exert supreme authority based on his piety (Noman, 1990: 6–7). An ulama committee drafted a proposed Ministry for Religious Affairs in 1948. The Board of Talimat-e-Islamia, an advisory committee set up by the government in 1949, based their conception of an Islamic state on the caliphate. Since God was the ultimate sovereign, the legitimacy of temporal rulers rested upon their claim as implementors of divine will. Accordingly it was required that the head of state, a Muslim male to be elected for life, be well versed in the laws of the Sharia derived from the Quran and Sunnah. Similarly since God, not the people was the sovereign, legislation was circumscribed by the requirement of conformity with the Sharia. A committee of theologians was to be the final arbiter on whether particular laws were consistent with the Sharia, thus ensuring that legislation would be controlled by the Ulema. (Noman, 1990: 6)

According to Noman (1990), the Muslim League was not interested in a theocratic state. There was little popular enthusiasm for a theory and the ulama suspected that the Pakistan’s mass appeal “was based less on a desire to observe a strict religious code and more to do with expectations of social and economic advancement” (Noman, 1990: 7–8). Ghulam Mohammad (the powerful civil servant who became Governor-General and had severe conflicts with the Constituent Assembly) declared that “Pakistan is a secular, democratic and not a theocratic state” while Iskander Mirza (the short-tenured leader of a bureaucratic-military regime) asserted that “learned maulanas” who interfered in politics would produce trouble and chaos (Noman, 1990: 8). Yet even those who opposed theocracy saw an “Islamicness” that inhered in Pakistan. A widespread Pakistani state narrative can be found in the Hamoodur Rehman Commission’s observation that the “Hindu national consciousness” conceives of an indivisible state in the subcontinent extending to the Khyber Hills; Pakistan and partition were only accepted as a matter of “bitter expediency,” and in the hope that the new state would not be viable and would collapse under pressure from India (Chapter 10, Section 1, p. 131). This existential insecurity has been central to Pakistan’s self-understanding. It is taken not as a “rationale” by military figures usurping civilian rule, but as a given, an acknowledged “Fact” in the words of the Hamoodur Rehman Commission: “from the day of Independence, Pakistan was involved in a bitter and prolonged struggle for her very existence and survival” (Hamoodur

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Rehman Commission, Chapter 10, Section 3, p. 131). Moreover, the Commission saw this as in essence an issue of ideological orientation: “whether an Islamic State and a secular Hindu state can co-exist in relative peace” (Hamoodur Rehman Commission, Chapter 10, Section 3, p. 131). Consternation about an entire rupture between Pakistan and its Islamic quality comes partly from the sense that enormous sacrifices had been made for the country, and therefore the feeling was arguably that there had to be some difference from India in the way things were done. Deliberation over Islam and its relationship to constitution and law was fraught with tension—primarily the supporters of “shariat” (sharia) rule against the modernizers. Amid the disputation between the allegedly theocratic and secular positions were nuanced formulations like the statement made by former education minister I. H. Qureshi. He argued that the “legal sovereign” would be “Muslim law” but that the people would be politically sovereign through legislatures in deciding how laws were to be defined and applied: The legal Sovereign shall be the Muslim Law; but its definition shall be in the hands [of the] legislature representing the people, which will, by deliberation and discussion, decide how to apply the principles of Islam to the needs of the community in varying circumstances ... . The political sovereign shall be the people who will elect and dismiss their legislature and their government. (cited in Choudhury, 1955: 591)

Qureshi’s solution echoes an idea found elsewhere: that popular sovereignty arises in interpreting and enforcing particular rules. Identifying Polycentric Metanorms in Pakistan Vincent Ostrom argued that intent matters, as it offers meaning to institutional design. Intent also says something about the metanorms that shape constitutional choice. Vincent Ostrom cites Searle’s analogy to an observer of a football game who would not be able to draw sensible conclusions without knowing its rules. In order to get at intent, examining deliberative statements is one possible approach, as they represent statements of intent, allowing for the possibility that these may be instrumental devices or strategic postures masking true preferences. My investigation is partly concerned with the role of intent in statements by prominent polity participants. Wilfred Cantwell Smith’s treatise, a valuable insight into Pakistan’s point of departure for reasons described below, emphasizes the role of intent. He contrasts static and dynamic ways of thinking about the Islamic state, and the danger of those approaches that pretend that they have achieved the Islamic



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state, as it ought to be, in terms of defining precisely the ideal, when giving absolute articulation to the ideal is impossible. Smith’s formulation suggests that the Islamic state is defined by continual purposive action rather than any particular law. Smith’s intent-based assessment of what being an Islamic state meant in Pakistan’s foundation period matters because it indicates a creative associational striving that cannot be captured by simplistic mechanical implementation of a monolithic blueprint. This is not to deny that there were certainly some who seemed too eager to take the blueprint approach. Smith expresses a key element of the polycentric constitutional metanorm: that the Islamic state cannot be identified with any particular comprehensive doctrine, and that is reflected in ongoing purposive inquiry and action at various levels. In addition to intent, constitutional choice is concerned with rules about who can do what, when, and how in the exercise of collective choice. Agreement on the terms of the debate would contribute to a resolution, and disagreement or confusion over definitions—sometimes acknowledged— contributes to the failure to agree. One member of the Constituent Assembly declared: “The people generally do not understand the difference between a constitution and laws” (quoted in Smith, 1951: 41). In fact, there is repeated confusion between the two; many advocating an Islamic constitution are actually speaking of particular laws (what I would call collective choice decisions made in the Type I jurisdiction). In the Pakistani milieu, political religion is unavoidable and therefore must be addressed. With the label Islamic, one risks “essentialism”— assuming that the religious tradition is uniform in different places and times, with a discernible primordial existence separate from contextually specific understanding, and that because something happened in “Islam” centuries ago, it has on-the-ground relevance in a comparable way in the Pakistani context. But considering the possible Islamic rationales for a polycentric order is important in a polity where persuasive arguments based on religious tradition are intrinsic to the political fabric. There are numerous resources in the Islamic tradition supporting constraints on the central government as well as polycentric orders (as described in Chapter 3). Dramatic developments commonly perceived as polity failures spurred soulsearching as well as systematic, officially commissioned, in-depth inquiry on causes and remedies, particularly constitutional-level propositions. By constitution, I refer to not the formal document, but rather constitution in the Bloomington school sense: basic rules that undergird who can address what in collective and operational decisions in the polity. These include informal and formal constitutional rules, some of which may be found in legal and constitutional documents. Gaps and differences between the formal and informal, officially authorized and unauthorized persist, and it is in divergences and breakdowns that gaps are sometimes exposed. Note that unlike the common

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way of thinking of constitutions as the formal documents specifying rules of the central state jurisdiction and other Type I jurisdictions like provinces, the Bloomington school treats constitutions as rules specifying the terms by which collective choice happens in any given collective choice unit, which could be Type I, Type II, or Type III (according to the typology developed in Chapter 2) or any self-organized or informal associational activity in which collective choice is exercised over a particular domain. There are different places one could approach meta-constitutional-level analysis: one might consider Iqbal’s visionary proclamations, Jinnah’s public statements, Muslim League debates and slogans, the Constituent Assembly debates, other commissions’ proceedings and reports, and legal perspectives such as those of Osama Siddique on the jurisprudence of dissolutions, Hamid Khan on constitutional history, or some set of court rulings. Among these and other possibilities, I focus on the Munir Report as a centerpiece because it simultaneously considers expectations of appropriate understanding with extensive witness-based investigations into how social conflict emerged and escalated. While this choice does come with trade-offs, reflecting the thinking and argument of the Munir Commission members in particular, there are reasons why the document deserves special attention. The Munir Report remains among the best-known government commission documents in Pakistan and beyond. While the document has a specific purpose—to inquire into the disturbances around the movement against the heterodox Ahmaddi community, leading to an imposition of martial law—is nevertheless a prominent source of insight, it is close to the country’s founding, and it considers these developments before military intervention became almost routinized. The declaration of martial law in the early 1950s carried the impression of an extraordinary step reflecting the breakdown of civilian authority amid riots. The questions of the influence of Islamic affiliation and of the constitutional understandings about collective choice units are parallel and overlapping at times. They both reflect the challenge of incorporating diversity in Pakistan, and working out a mode by which coexistence and autonomy can be maintained without undermining the polity. I bring these together in several ways. Religion has been used as a bludgeon against some minority groups by other groups; it has also been the basis for unity. How religion can be the basis for unity without also imposing a monolithic, hegemonic understanding (and thereby alienating some groups) remains a key problem. If Smith’s work reviews what the constitutional level of analysis might mean with respect to founding ideals, particularly in gluing the country together, the Munir Report reviews the events as well as the broader basis for a major early crisis in the polity on a constitutional question. Unlike the military coup that followed shortly thereafter (and produced a major constitutional shift), the Ahrar agitation offered diverse views on constitutional



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choice in Pakistan with respect to Islam. The Munir Report offers some thoughtful views on what are the bounds of state involvement in the polity on Islamic terms—in effect, a partial potential support for the Islamic polycentric position. The Munir Report represents one prominent document and record in the deliberations over the constitutional role of religion in Pakistan. By considering various points of contestation, it impilcitly affirms Smith’s emphasis on intent. Islam in Pakistan Claims about Islam and appeals to Islamic symbols have had diverse political uses in Pakistan, and have been present in much constitutional deliberation. Political doctrines in Pakistan, given the country’s point of departure, often make some reference to the role of Islam. Such reference may include consideration of how Islam is understood—for example, how the Quran and sunna are read, and according to what fiqh jurisprudential approach, and according to which elements of the sacred history, although these choices are typically obscured by the universalizing and absolute terms in which positions are expressed. Even self-conceived secular groupings offer rationales related to a conception of the “good” that reflects an implicit or explicit religious interpretation. Who does or who should arbiter disputes in understanding, interpretation, and application? That question might have de facto and de jure answers—as so often happens in Pakistan, given weakness in some of its formal institutions. There might be official figures assigned the responsibility of arbitration (the de jure actors), and then the de facto situation: opaque social networks, local strongmen, and alternative decision-making loci that in practice influence what gets counted as Islamic, and how. An anthropological survey of Islam in Pakistan may provide a cultural map, reflecting variegated sectarian and practical orientations. Despite the diversity, there is nevertheless an “itness.” Islam provides the core idea of shared and frozen meaning, a “myth” (the term is used nonpejoratively here, in the sense suggested by Lasswell, Lerner, and Poole (1952)). Making arguments within tradition demands “apt performance,” which is judged for its “aptness” by other participants within that tradition. As such, Islam is a reference point for social deliberations, part of the cultural endowment within which normative deliberations are positioned, and in some cases a social-psychological orientation that solves an elemental “coordination problem” about how people are to relate to each other. In the Pakistani political tradition, or what has become the Pakistani political tradition, reference to Islam is frequent, particularly given its founding posture as being a state explicitly for Muslims. Reference to Islam, even where it is cursory, formulaic, or ritualistic, helps resolve social coordination problems at different

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levels in Pakistani society, and the constitutional level is no exception. The absence of such reference to religion risks making public deliberation partly unintelligible, and may require politically difficult explanation. Certain words and references are central. The Quran, and some element from sacred history (such as “sunna” “rightly guided caliphs,” or other notable pious figures), are usually essential. However, what counts as “sunna” differs depending on people’s madhab; some narrations and traces are rejected by Shias that are accepted by Sunnis; some of the revered Imams in the Shia tradition who have been authoritative sources of sacred law do not have the same status in the Sunni community. The legitimacy and status of the early caliphs remain disputed, and the very label “Shii” is short for “Shia Ali,” meaning the faction of Ali, one of the caliphs. Other denominations and subsets that have claimed “Islamic” identity, such as the Ismaili, the Bohri, and Deobandi, Barelvi, Ahl-e-Hadith, Ahl-e-Quran, and especially contentiously the Ahmaddis (viewed as beyond the fold of Islam by many other religious groupings, with substantial consequences described below), make a consensus blueprint of Islam’s function in Pakistan difficult, except for a highly restricted version. Nevertheless, Islam—however contested, variously understood, or sidestepped—remains a prominent and usually central motif in most political doctrine. This has had practical implications. That the president must be a Muslim is one doctrinal position that has been explicitly included in formal constitutional drafts. One cannot say that one has a policy position, or a constitutional proposition, that is against Islam. Instead, whatever one’s position, it must be defended from an “Islamic” rationale. According to Wilfred Cantwell Smith, Pakistani Muslims are in general agreement that the country needs to be “Islamic,” and “there are political persons or groups who, whatever their personal views, recognize that a program must be advocated as “Islamic” if it is to win popular support (Smith, 1951: 8). This raises the political issue authoritative religious interpretation: if Islamic guidance is called for, who has the authority to interpret that guidance, and on what basis, how, and when? Political doctrine is important from the perspective of John Searle’s approach (as described by Vincent Ostrom). It lends insight into what is intended, which in Searle’s example helps make sense of a game of football. Without this, one could come up with observed “laws” about period clustering and de-clustering of figures on a field, but largely miss the point of the activity. In an ideal-type of the Islamic polycentric metanorm, people generally agree on the political doctrine, but agree to disagree on formulae and miranda, and have lots of room—as much room as they can make possible—for enacting the diverse formulae in their respective social and communal spheres. For example, the laws of divorce, marriage, and inheritance might differ for each community. The original statement of the Objectives



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Resolution contains what is in effect an assertion about the political doctrine of the country, and claims that being “democratic” fits being “Islamic.” Pakistan as an Islamic State From a Bloomington school constitutional-level perspective as expressed by Vincent Ostrom (1997), the intent of civic artisans devising institutions in responses to common problems matters. Accordingly, what constitutes an “Islamic” state must consider the intent of artisans of that polity. Wilfred Cantwell Smith’s discussion on what is meant by Pakistan as an “Islamic state” emphasizes intent. For several reasons, Smith’s study provides a valuable vantage point for understanding Pakistan’s point of departure. Smith writes from a unique vantage point: a reputable and pioneering scholar in the study of comparative religions, with a focus on Islam, Smith lived in pre-Independence India from 1940 to 1946, and taught Indian and Islamic History at Forman Christian College in Lahore; he later directed Harvard University’s Center for the Study of World Religions. His scholarly interests provided rigorous comparative sensibilities, and his geographic vantage point at the crucial formative period placed him in a strong position to consider the meanings of Pakistan as an Islamic state. Thus, Smith assesses Pakistan as a political assessment without the benefit of hindsight—sparing the fallacy of “backward-reading” historical discussions in light of what we know to have happened. Smith’s account, focused as it is on the senses in which “Islamic state” is used, helps capture some deliberation of that time. Another task is to compare Smith’s insightful overview with what has transpired over a half-century—starting perhaps most immediately with the Ahrar agitation, with its anarchic consequences and the imposition of martial law. The Munir Report arguably offers a far-reaching review, and thus follows logically from notes on Smith. Smith notes that while there are ongoing debates about claims, meanings, and interpretations of Islam, the great, and indeed monumental, and the almost unanimous development of Indic Islam in our day is Pakistan itself. The fashioning of this dominion is a practical expression of Islam beside which the ideological expressions of a Maududi or an Usmani, and the inabilities and the intellectual expression of most modernists, are minor. (Smith, 1951: 4)

Smith was writing in the middle of the twentieth century—and this is perhaps a good reason to consider his work. It is not colored by the later experience of the polity (toward increasing adoption of specific religious

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dogma at the central jurisdictional level, with the center acting as an arbiter of orthodoxy) and instead centers on the variegated experience of “practical expression of Islam” that presumes an active and entrepreneurial citizenry engaged at different levels in the ongoing effort of self-government. Islamic State as Intentioned Action toward an Ideal Smith quotes from a metaphor used by a Pakistani political leader for Pakistan as an Islamic state. The politician saw a boy flying a kite on a foggy day, and asked what fun he could have since he could not see the kite. The boy replied: “I cannot see it; but something is tugging.” Smith continues his report of the politician’s commentary: “So it is with Pakistan and the Islamic state. They cannot see it. But very surely something is tugging; and they know it. No one has a clear conception; it will yet evolve” (Quoted in Smith, 1951: 66). There is intentioned action toward an ideal which may not be precisely visible, but around which there is a shared understanding. Smith asserts that “[the] demand that Pakistan should be an Islamic state is a Muslim way of saying that Pakistan should build for itself a good society” (Smith, 1951: 67). Defining the “good” is left open to interpretation and reinterpretation. The full definition Smith offers is: An Islamic state in sense (1) is a state which its people are trying to make an Islamic state in sense (2). An Islamic state in sense (2) is a state which Muslims consider to be good. (Smith, 1951: 68)

In itself, the definition is somewhat tautological, except that it relocates the authorization of what is Islamic from something purely textual or transcendent, to something that is more a matter of interpretative and subjective understanding by Muslims of the “good.” The political questions this raises is which Muslims, how their legitimating approval is measured and obtained, and what the content of the “good” is decided to be. Those political questions are not settled by this definition. Interpretative differences and uncivil contestation may in extreme cases generate takfir declarations, which may be destructive to the social fabric and lead to severe conflict. Part of a polycentric metanorm is the modest spirit of fallibilism that is wary of claims to absolute omniscient knowledge on a question related to what is “good” for others. This suggests that a central authority’s singular response to “the good” is problematic unless it allows interpretative flexibility and contestation from others. Smith argues that it is essential to leave the actual definition of the good undetermined:



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It is an essential part of any valid definition that it leave room for future development. Even if, mirabile dictu, all Pakistanis should solidly agree to-morrow, they would be free to revise their judgment the next day; as history shows that they, like other religious communities, have done in the past. […] It is not outside observers or theoretical analysts to pronounce on the outcome of this matter; history will do that. (Smith, 1951: 69–70)

In terms of constitutional choice, this is a strong assertion that the actual content of policy and the particular goals it serves should be left to the choices of individuals and collective choice units rather than resolved with absolute constitutional bounds imposed across the polity by the central state jurisdiction. The tension between is and ought recurs in the question of how Pakistan is Islamic. There is an actual and an ideal in understanding the Islamic state. In the dual way “Islamic state” is used, the first is that “Pakistan is an Islamic State,” and the second that “Pakistan ought to be an Islamic state” (Smith, 1951: 28). Smith’s formal definition of the first is: “An Islamic state in sense (1) is a state which its people are in the process of endeavouring to make an Islamic state in sense (2)” (Smith, 1951: 28). Smith here suggests a definition for the actual, in which intention matters: an Islamic state is one in which people are endeavoring to make the state Islamic—and the degree of Islamicity depends on “the vitality and sincerity and intelligence” with which people pursue these goals, rather than the extent to which they achieve those goals (Smith, 1951: 28). Importantly, the nature of ideals is such that Pakistan can never “arrive” at the way an Islamic state ought to be; “Pakistan would cease to be an Islamic state, whatever its form, the morning its citizens ceased to strive to advance it in the light of their idea, and sank back complacent with themselves and their social attainment” (Smith, 1951: 34). In a sense, Pakistan is an Islamic state to the extent that the intent is accepted and incorporated into the ideals motivating decision-making at all levels. Determining what is the “good” thing to do is a problem of discernment for everyone, and has occupied ethicists and metaphysicists in a more formal and specialized way. Suggesting that the Islamic state is a transcendent ideal (“a fixed form, a preexisting model which is good in some sense apart from the persons who constitute or pursue it” (Smith, 1951: 72–73)) is an oversimplification and carried a platonic bias (Smith, 1951: 72). Claims about the natural law may suffer similar problems. Some claim that Islam states what is good. In Smith’s view, it is not Islam that determines what is good, but God; Islam is an avenue, and the goal is God; Muslims submit not to Islam but to God (Smith, 1951: 75). Crucially, eternal and transcendent truth is “never wholly within the grasp of man” (Smith, 1951: 75). Most agree that

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goodness should be known through Islam, but disagree as to references (e.g., the Quran alone; the sunna; the Khulafa; particular faqihs and intellectuals) (Smith, 1951: 75–76). The ideal gains significance as a shared understanding in contributing to the polity’s survival despite difficulties. Smith argues that “it is better to have ideals, even when not lived up to, than to repudiate them” (Smith, 1951: 87). From a pragmatic standpoint, “the alternative to the Islamic state is complacency or corruption” (Smith, 1951: 86). From a skeptical perspective, Pakistan is hardly Islamic—it has stopped striving for that ideal, and has become mired in high levels of corruption. The death of the ideal is dangerous for the polity. Smith emphasizes that his discussion is based on the highest aspirations, while “there is much in Pakistan much—exceedingly much—that is un-ideal” (Smith, 1951: 81). Smith notes that the provincial administrations have fallen prey to “acquisitive opportunism” and decadence, and by 1949, two provincial governments had been “dismissed in disgrace” (Smith, 1951: 83). Smith quotes a Muslim commentator on Pakistan’s weakness as a state: But the saving feature is that any other movement would have perished by now. Muslims do have a vague idea of what they want. . . . Eventually it must come; it has sunk deep into people’s hearts, and their feelings about it are strong. Very strong. Just as they felt strongly about Pakistan, and for that reason Pakistan did come in the end. (Smith, 1951: 85)

Smith suggests that “However remote the ideal may be, however vague, however distorted, the crucial matter is that it is an ideal; and an ideal is necessary” (Smith, 1951: 85–86). Shared ideals give a reason for continuing together. Without that reason, the structure can simply collapse. The reason might not be sufficient, but it is necessary for long-term viability. Smith points out the necessity for couching Pakistan’s constitutional and polity design process in Islamic terms in the following quote: One does not need to be a Muslim to recognize that virtually the one real hope for Pakistan is that it be an Islamic state in sense (1): that it aim at making itself an ideal Islamic state. Given that fact that it is a democracy (formally) and that the great majority of its citizens are Muslims, it must, virtually, pursue Islamic ideals or no ideals at all. (Smith, 1951: 86)

Smith appears to essentialize “Muslims” as fundamentally defined by religion; it is arguable that the choice of the label “Muslim” rather than a territorial or linguistic label suggests a connection to Islamic identity, and thus Islamic ideals, as asserted by Muslims. Smith’s views about the centrality of intention is not restricted to Islamic contexts, but apply elsewhere, and can be considered a general proposition



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regarding the place of traditional teachings about transcendent truths with respect to the shared understandings: It is always impossible to make the transcendent actual. Yet meaningful life consists in the endeavor to do so. One becomes a Buddhist not by living up to the teachings of the Buddha or the principles of Buddhism, but by undertaking to do so; one might say that that man is a Buddhist who tries to be a Buddhist. Islamic history has never been Islamic in the ideal sense—life is too complex for that. None the less it is Islamic history; and is significant because the Muslims who created it have been inspired by Islam as an ideal. (Smith, 1951: 31–32)

This quote is particularly helpful because it gives some basis for thinking what makes something Islamic. Being Islamic is in the hands of the people that make up the society; their choices and behavior will make it more or less so. Pakistani Islam and Constitutional Level of Analysis Writing shortly after the creation of Pakistan, Wilfred Cantwell Smith suggested that there were two senses, the ideal and the actual, that were interrelated in Pakistani deliberations on what constituted an Islamic state. In Smith’s words, Pakistan’s birth was conditioned by a multitude of mundane, human and concrete, factors obtaining at this particular juncture in time and place. Many outside observers, failing to apprehend the former, the ideal, gave all their attention to the later, the circumstancing agencies, the material and efficient causes. Consequently, they could describe and analyze, but could hardly understand or appreciate, what was going on. (Smith, 1951: 33)

Smith has offered a critique of observation and analysis from an Aristotelian perspective on causality (considering final and formal causes along with material and efficient causes), and this approach has significant value in the Bloomington school context due to its unveiling of ontological underpinnings as well as artisanal intent (Malik, 2017). Yet the approach also raises a tension between apparently essentialist claims about Islam in the national selfconception and the diverse reality of religious interpretative paths (as well as nonreligious motivations and factors). This requires further exploration, not least because a similar issue is bound to emerge in discussions of what constitutes an “Islamic” polity elsewhere. In the above quote, Smith appears to presume an identifiable essence to Islam that influences social outcomes. Smith’s apparent essentialism is arguably present in the following statement: “Pakistan would never have happened had it not been for the Muslim’s ideal of a religious community,

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the inherent striving within the heart of Islam towards social self-expression” (Smith, 1951: 32). Smith appears to suggest that “social self-expression” is essential to the core or “heart” of Islam, an assertion postmodernists would criticize for its truth-claim and for its marginalization of other perspectives. Yet if Smith is an essentialist (one who presumes an immutable, acontextual core to Islam that impacts social outcomes), he is a sophisticated one; for example, he understands that there is not a single, nor even several, clear-cut and shared ideals that shape community action. Notwithstanding the difficulties involved, Smith’s suggestion is that apprehending that essential ideal will add to an understanding and an appreciation for the unfolding social political project. Essentialist views are interrogated by those with postmodernist and constructivist standpoints, who would urge a contextualization of what was meant by any given statement at the time it was made, and to particular audiences. A constructivist assessment would describe any depiction of the Islamic ideal as a contextually embedded construction rather than a transcendent meaning manifested in a temporally variant fashion. A postmodern critique would emphasize the voices and approaches that were suppressed or marginalized when one discourse became ascendant. An instrumentalist approach would emphasize strategic choices by elites seeking to manipulate identity and ideals for political purposes (see Varshney, 1992, for an application of these categories to ethnic politics). Smith’s “essentialism,” however, uses an eclectic inductive and observation-based toolbox that also draws on what are in effect constructivist approaches. It closely resembles Talal Asad’s definition of tradition as “apt performance” linking the past to the present, and suggests that political doctrine in Pakistan must be commensurable with Islamic tradition (in the judgment of the practitioner community; this latter element, when shaped by severe dogmatic sectarian positions, can threaten the polycentric metanorm, as described below in the discussion of the Munir Report). Smith’s position on the relationship between Islamic identity and behavior is summarized in this statement: “That Pakistan is Islamic is given; its interpretation of Islam is free” (Smith, 1951: 91). Interpretation is free in the sense that it is open, but nevertheless must be commensurable with the tradition. Smith implies this in his assertion that only Muslims are authorized to define an Islamic state: “Only a Muslim has a right to expound what an Islamic state ought to be” (Smith, 1951: 70). Smith’s aim is “not to expound the content but the meaning of his judgment” (Smith, 1951: 70; “his” meaning “a Muslim’s”). Identifying who is a Muslim is itself a heavily contested, politically divisive matter, contributing to a major constitutional contest (see the discussion of the Munir Report below). Smith suggests the metaphor of a ship and notes “many voices, which in the absence of a chart or known destination, clamor with proposals,” and



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voiceless others who “sail by feel,” given their inarticulateness or ignorance (Smith, 1951: 4). The debate is between those who seek to chart the course ahead of time, and others who are pragmatic and practiced in the actual context. “Modernists” believe that some agreement between both groups is necessary (Smith, 1951: 5). The polycentric approach might extend this metaphor further, suggesting not a single ship, but a flotilla, with many ships each with some autonomy of command, but generally sailing together. At the polity’s birth, Muslims in Pakistan were faced with the “sudden necessity” of making something of the state of their own (Smith, 1951: 5). The overwhelming priority was state survival, following the “stupendous cataclysm” of Partition (Smith, 1951: 6). There were two key problems: “how to make Pakistan viable, and how to make it Islamic” (Smith, 1951: 9). To some Islamicness and viability may be contradictory, but in Smith’s view “the possibility, and even the meaning, of each in some fashion embraces the realization of the other” (Smith, 1951: 9). Thus, in Smith’s articulation of mutual interdependence, Islamicness and viability must go together. It is arguable that an ideal provides social glue and helps overcome a profound coordination problem in constitutional design. To describe Pakistan’s Muslims as “a community possessed of a clear-cut religious ideal, to which they are consciously and jointly endeavoring to make their society conform and approximate” is a “gross oversimplication” (Smith, 1951: 11). It is also oversimplifying to say that there are several such “clear-cut ideals” (Smith, 1951: 11). This is not to deny that there are some competing totalizing visions and affinity groups with hegemonic aspirations. S. Sayyid (2005) suggested that despite contestation, and despite postmodern incredulity toward master narratives and sensitivity to challenges of signification, Islam retained an “itness” and a status as a “master signifier” that made it politically potent. Smith presents an overlapping, if somewhat unqualified, version of this claim: “Pakistan, by virtue of being ‘Islamic,’ in whatever sense, has had a morale and integration which have proved of prime significance in creating and sustaining the nation and in impelling it forward to energetic construction” (Smith, 1951: 11). Smith suggests that Pakistan can generate greater “constructive loyalty” from its citizens than its neighboring polities can generate from their citizens. Many would question that view now, but Smith’s basic thesis about the centrality of an Islamic ideal as a glue remains in place. In Smith’s view, the Islamic ideal provides a crucial social solidarity that, persisting as it does in people’s aspirations and imaginations, allows the state to survive: On the part of outsiders it is an injustice to the country, and on the part of Pakistanis themselves it is a mawkish violation of sincerity, to underestimate

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the enterprise on which the community embarks when it set out in pursuit of its ideal. (Some, indeed, would deprecate the venturesomeness of the ambition, not realizing that it is only the fascination of a great ideal which has enabled the state to survive its crises at all). (Smith, 1951: 71)

From this backdrop, East Pakistan’s secession may represent the death of a particular vision of unity in Indic Islam. Irrespective of the practical difficulties, the sundering did appear to put the lie to the idea that shared attachment to Islam could hold the country together. But the behavior of the central government was manifestly oppressive, and many would say contrary to Islamic ideals, despite regime leader Yahya Khan’s use of the label mujahid (one who undertakes jihad, a struggle in God’s path) and the religious phrase inshallah (God-willing) in trying to generate an Islamic ethos in the fight against India (Malik, 2011). A cynical assessment would see Yahya Khan’s stance as politically convenient and hypocritical given his notorious personal impieties. According to Smith’s perspective, however, elite attempts to use religion instrumentally and manipulate religious symbolism for strategic goals, while possibly contributing to the erosion of faith, do not in themselves obviate the ideal as an inner force. “The religion provides the drive towards, as well as the epistemology of, goodness; along with intense community cohesion, and other socially significant factors” (Smith, 1951: 76). In Asadian terms, it provides a tradition for describing apt performance, and also for delineating the community. The Bloomington School, the Concept of “Islamic state,” and the Objectives Resolution Part of the difficulty in discussions of the “Islamic state” is confusion over the state as “referring to a body of people politically organized on the one hand, and to the form and instrument of their organization on the other” (Smith, 1951: 16). From the Bloomington school perspective, the term “state” needs to be contextually unpacked for clarity and better specified in terms of action arena and collective choice associational activity. A partial answer is to refer to a central state jurisdiction (which may claim to speak as the authoritative voice of the body of people), and to examine their “form and instrument of organization.” Yet the particular rules constituting that unit and shaping its collective choice activities should be understood in a specific context of meaning (keeping in mind that formal rules may be at substantial variance with the constitutional rules-in-use). Alternatively, any focus on the “body of people politically organized,” must consider their range of association forms and collective choice activities, each constituted with its own particular understandings. This requires having reference to many “forms and instruments of organization.”



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In a well-functioning polycentric order, the constitutional level throughout associations for collective choice has, as a guiding metanorm, the task of maximizing the potential for the body of the people to pursue their visions of community life in diverse contexts, by “crowding in” civic virtue (Malik and Marshall, 2017). Smith (1951: 18–19) asserts that there was considerable enthusiasm for the idea of having an Islamic state, and it was seen as a triumph for Islam, at a time when Muslim political power had been in decline, and other Muslim societies often had no state of their own. This is the more relevant in that the whole principle on which Pakistan was mooted and then established was Islamic. It was not a territorial or an economic community that was seeking a state, but a religious community. The drive for an Islamic state in India was in origin not a process by which a state sought Islamicness but one by which Islam sought a state. (Smith, 1951: 19)

Smith cites the Objectives Resolution to note that the “Islamic state is not merely one in which Muslims live or rule; but one through which their purpose is to live or rule (in a democracy, live and rule) as Muslims” (Smith, 1951: 27). In Pakistan, “the whole raison d’etre of the state is Islam: it is Islam alone which brought it into being, and Islam alone which holds it together” (Smith, 1951: 27–28). Smith also notes that the Objectives Resolution was the only version up to the time of his writing of an Islamic state that has received “decisive approval on paper”—and it sought a state “wherein the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be fully observed” (Smith, 1951: 62–63). To Smith, the perceived sharp divide between God’s sovereignty and popular sovereignty emerges partly from the cultural context for translation. The Urdu text of the Objectives Resolution uses the Arabic term al-Hakim al-Mutlaq (the Absolute Ruler), is something “commonplace and almost trite in the Islamic tradition as they are within the religious tradition of the West, whereas the English version uses terms such as sovereignty, which are from the sphere of international law and political science in the Western tradition, and which when applied to God were startling” (Smith, 1951: 78). Smith traces this to the fact that the Western tradition integrates both religious and Greco-Roman roots, and thus has a dual heritage (not necessarily coexisting in comfortable compatibility) (Smith, 1951: 77). Smith asserts that Westerners were apprehensive about the Objectives Resolution because “an act of transposing the ideas from one form of expression to the other necessarily stumbled over the obstacles which divide the weltanchauungen of the two civilizations” (Smith, 1951: 78). Again, Smith’s approach appears essentialism, yet avoids crass oversimplification. Defining the Islamic state as one that Muslims consider good is an attempt to

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reexpress things in terms that the Western-educated can understand (Smith, 1951: 78–79). “What they consider good depends on them; and since they are Muslims, it therefore depends on Islam” (Smith, 1951: 79). This formulation is appealing and sensible; people have a right to govern themselves and choose their society and destiny; Muslims may choose to do that according to their understanding of Islam. This applies to the highest ideals; in reality, as Smith was keenly aware, motivations are mixed and complex, generating an order widely criticized as corrupt, with governance decisions often greased by bribery or shoehorned by intimidation. Static Rules versus Dynamic Pursuit The tacit feeling among some in Pakistan’s early constitutional deliberations was that the right state apparatus would automatically produce an “Islamic” society (Smith, 1951: 41). But the “actual desideratum,” even in the minds of advocates of the Islamic state, is the “ideal community” (Smith, 1951: 41). In other words, if an apparatus does not produce the ideal community, then how can it be an “Islamic” state? Moreover, the nature of ideal is such that it cannot be comprehensively articulated in reality; the kite remains invisible but continues to tug on the string, to extend the metaphor cited by Smith (described above). In Smith’s formulation, this implies two senses in which the term “Islamic state” is used. The polycentric approach protects and permits substantial scope for individual and collective expressions, potentially fitting closely with Smith’s emphasis on the endeavor to produce something that Muslims consider good—as individuals and sub-collectivities in the community at large. Smith’s understanding of an Islamic state as intentioned, continual striving toward an Islamic ideal provides a strong critique of those who claim that “Islamic state” is located within a given legal blueprint: it is possible for the guilty to hide their immorality behind the paraphernalia of formal conformity, cloaking their administration with religious symbols, and accusing those who differed with them of being “against Islam.” Reactionaries in all societies try to make use of religion: but of its outward, static elements, not the dynamic pursuit of transcendent values. By pretending, however preposterously, that theirs is already an Islamic state in sense (2), so that opposition would be sacrilege, they try to forestall the doom which they are meanwhile incurring because in fact theirs is not even an Islamic state in sense (1). If we are right in supposing that an ideal state is by definition transcendent, then any final defence of the status quo in the name of Islam, or religion in general, is either misconceived or mischievous. (Smith, 1951: 36–37)



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This quote suggests a Smithian critique of the “thoroughgoing Islamizers,” from Zia-ul-Haq to Hizbul Tahrir: their misconceived projects focus on static and outward elements, rather than the “dynamic pursuit of transcendent values.” And this may have been something close to what Sayyid Qutb was suggesting in his repeated emphasis on “movement” as a necessary part of the Islamic order—the continuing dynamism that was needed in the effort to work toward a transcendent ideal, but nevertheless one which would never be perfected, because it consisted of ongoing endeavor in unfolding and unique circumstances requiring deliberation and consultation. In other words, the most sophisticated guiding notions include substantial dynamic elements. This may be a point shared by Tariq Ramadan in his emphasis on the continuing role of tajdid (renewal) and islah (reform) in Islamic society—a dynamic that continues to adjust social choices as circumstances and understandings change. Contesting the Meaning of “Shariat” There are substantial political differences over what sharia (or its variant spellings, shari’a, shariah, shariat and shari’at) means and how and when it is to be discerned and by whom it is to be implemented. One view sees sharia as a static rule-set that exists, is discernible, and must be applied. There was an early and vociferous advocacy of an explicit constitutional requirement that sharia “shall form the inviolable basic code of all legislation in Pakistan and that all legislation which may contravene the Islamic shari’at shall be null and void and considered ultra vires” (Statement of the Majlis-i-Shura of the Jama’at-i-Islami in the Sind Observer, Karachi, March 17, 1949; quoted in Smith, 1951: 52). Yet the sharia issue did not clarify things so much as reframe the question to ask what sharia means (Smith, 1951: 53). Like the broader question of who speaks for Islam, there is dispute over what counts as an authoritative position in Islamic law (Abou El Fadl, 2001). Smith asserts that “very few serious and responsible thinkers” (and almost none of the ulama or government administrators) actually think that the sharia as it exists in law books (books of fiqh) should be adopted directly into legislation; most advocates of this position do not actually know what is in those books (Smith, 1951: 54). Some feel that legal fundamentals were worked out in the Islamic golden age, but to apply these to modern circumstances is “a task that many admit would be of imposing proportions, demanding the highest calibre of knowledge, acumen, judgment, and devotion” (Smith, 1951: 55). Smith quotes a Maulana who writes of the need to first reform society before building up the state:

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Compare the Prophet Muhammad himself: there was first the period in Makkah, during which there was only moral teaching and the like; and then in al-Madinah the state was built-up slowly. Our intention is to take the salaf as a model. But we shall proceed slowly. Before we introduce the classical penalty for theft, we must first preserve the entire population from hunger, nakedness, and so on and so forth. Before we punish zina with stoning, we must reform nikah, which has acquired all sorts of unIslamic elaborations. For morals, we must teach Islam, inculcating its principles and precepts. Only then shall we be hard on immorality (quoted in Smith, 1951: 51)

This gradualist formulation accepts, in principle, the Hudood punishments for certain transgressions. The statement tries to contextualize the Hudood in social realities where people might have acceptable excuses for transgressions, such as hunger as an excuse for stealing. Moreover, it suggests that legal accountability for immorality cannot be imposed without character education for personal virtue. On both counts, Pakistani society has not succeeded; in that sense, the Hudood punishments will likely be unjust and socially negative, violating a broader goal of the religious law. Some religious traditionalists argue that Hudood punishments are not enforceable in practice because the bar of proof for ascertaining guilt is high, and so the Hudood should be understood as religious warnings about the severity of some sins. Smith argues that constructive, continuing engagement is necessary: a “great creative effort is needed on the part of Pakistan, or the Muslim world, in order to produce the new adaptation or version of the law for the modern world” (Smith, 1951: 56). For most who see the Islamic state as having Islamic laws, that law is an ideal “to which Pakistan ought, through the constructive diligence of its citizens, to aspire. Those who urge that Pakistan should adopt Islamic laws, and yet cannot define precisely what those laws are, are not merely acting from confusion; they are, however unconsciously, expressing the fact that those laws in mundane and tangible form do not yet exist, but are something to be striven for.” (Smith, 1951: 57)

In another view, sharia is in dynamic development, for which history provides guidance, but for which “creative extrapolation” is needed, emphasizing “continuity and revision” (Smith, 1951: 55). A better term than “sharia” here may be fiqh or the ahkam; using this terminology removes one from debates over the mutability of God’s law. Another camp sees “classical Islamic law as the practical expression for its own time and place of a transcendent norm for which, in the new time and place of Pakistan, a new, and perhaps quite different, expression is needed” (Smith, 1951: 55). This also requires extraordinary creativity. Yet others suggest deducing law only from the Quran, or only from Quranic principles (Smith, 1951: 55).



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Theocracy vs. Democracy Smith suggests that being free to choose one’s government is not enough to be democratic; rather, to be democratic, the people “must have the intention, and the competence, to rule themselves” (Smith, 1951: 43). Rather than a theocracy, Muslims have chosen a democracy. Smith notes a widespread sense that Pakistan would not be a state ruled by the ulama, but a democracy, as Pakistanis are not willing to turn over the definition of their goals to the “experts” (Smith, 1951: 42). This latter statement closely resembles the citizen-association governance basis that Vincent Ostrom pointed to as being the locus for a functioning, healthy democracy, and also fits more broadly with the Bloomington school emphasis on external authorities respecting the autonomy of self-governing associational activity, in part because information is dispersed rather than omnisciently known by outside experts. A key difference between Pakistan and other countries is that the people are aiming “at governing as Muslims” (Smith, 1951: 45). In the words of one Pakistani intellectual, “this is the first time that the Muslim people as such have come to power” (Smith, 1951: 44–45). One consideration is finding the ethical value that “added to the political, leads to democracy as a functioning process. In the case of Pakistan, that ethical element is, of course, Islam” (Smith, 1951: 48). Importantly, Islamic democracy as an ideal relies on trust between groups; mutual contempt may undermine democracy (Smith, 1951: 47). In a sense, the Ahrar crisis (discussed below) involved a religious judgment that had a political consequence, feeding severe contempt for one community, and reducing trust. Some early deliberation was over the possibility that the mullah—stereotypically, to the modernizers (who were usually schooled in a Britishflavored educational curriculum), a parochial, rigid religious leader not well acquainted with modern complexities—might come to power. The modernizers were worried about the possibility and insisted that it could not be allowed. Smith suggests that the same problem of how Islam is to be interpreted occupies the entire Muslim world, although in Pakistan it may have been more pressing and acute. A crucial facet is the repeated affirmation that the people as a whole—and not solely the ulama—shall interpret what the religion means. The ulama might with their arguments or prestige convince the people of a particular interpretation, but the people remain the final arbiters (Smith, 1951: 99). This may be a meaning of popular sovereignty in an Islamic political setting, leading some Pakistanis to insist that their “Islamic state” is not “theocratic” because it is not run by the ulama. What this might suggest instead is that the theocracy/secularism dichotomy presumed in a worldview originating in European Christendom is inadequate and potentially misleading for addressing the complexities of the Islamic context. Further, the theocracy/secularism division largely ignores the question

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of polycentric arrangements and their implications for how we think about the “state” (a concept typically reified into a monolithic, monocentric unitary authority enforcing law on “society”). One of the striking aspects of Alexis de Tocqueville’s examination of the covenantal foundations of selfgovernance in the Anglo-American context was role played by religious selfunderstandings in supporting local self-governance by inculcating the habits of heart and mind by which citizens worked to devise ways to address shared problems (Allen, 2005; Malik and Marshall, 2017). Tocqueville went so far as to suggest that liberty cannot exist without faith, and that religion is the first political institution. Covenantal theologies underlay a polycentric order. The functional equivalents of covenantal theologies have analogs in Islamic contexts, although sometimes muted or eclipsed by other political theologies. Minority Rights and Protections, and the Question of Secularism Membership and boundaries are constitutional choice questions in any associational form, and a critical question is how the rights of minorities are secured. In Smith’s sunny view, Pakistanis recognize internal diversity and seek a friendship between groups rather than a disintegration of the groupings (Smith, 1951: 64). Smith argues that minority rights, or, to be more precise, the rights of those who are not powerful, “depend on the ideal of those who are in power” (Smith, 1951: 87). Pure democracy in the Pakistani context will not work to secure minority rights—the Muslim majority could simply act to disenfranchise the minority from access to community resources, or seek to appropriate the minority’s property. The advantage to an Islamic ideal is that the non-Muslims can appeal to the conscience of the majority, and suggest that treating the minority unjustly makes the majority bad Muslims (Smith, 1951: 90). Thus, the ideal is important because it offers grounds by which minorities can challenge the existing practice of power. The view that in order to secure minority rights, “democracy” alone is not enough, but must have some external constraints, can be found in democratic theory. For example, the liberal democratic tradition, responding to the danger of the “tyranny of the majority,” imposes minority rights’ safeguards. The liberal democratic tradition faces paradoxes arising from how it restricts popular sovereignty through an implicit and questionable claim of prior democratic choice (Nedelski, 2012). In Tocqueville’s assessment, the associational life of citizens and corresponding habits of heart and mind are a critical protection against democratic despotism. Further, one cannot simply call oneself “liberal” or “secular” or use some other outside symbol and expect similar results, because “it is not at all clear that by introducing the symbols of another culture or another religion, one is



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importing their meanings with them” (Smith, 1951: 91). This powerful observation resonates with postmodernist theory, and logically carries over to the way different generations and eras appropriate their own historical symbols. Disputes over political Islam are understandable as contestation about how to understand the meanings of historical symbols. It is impossible to have a secular democracy in Pakistan and India, according to Smith; one must have either one or the other, because most people are religious (Smith, 1951: 95). The term secular does not translate well into other languages. The Turks, after a failed experiment with the word “irreligious,” coined the term laik based on the French laicite. Smith does note a small minority in Pakistan who take the example of Turkey and advocate something other than “Islamic” state identity, considering religiosity a “bane” and a backward element incompatible with the modern European example (Smith, 1951: 93). Different arguments are cited in support of the rejection of an “Islamic state”: there are too many sects, so no “peace and satisfaction” can result unless church and state are entirely separate; Islamic principles are incompatible with the modern requirements of government (Smith, 1951: 94). Smith goes on to note that the “church-state” distinction is relevant within a Western Christian context because the equivalent of “church” does not exist in Muslim and Hindu contexts (Smith, 1951: 96). “A democracy could be secular if most of its citizens were irreligious (perhaps France is the one possible example), or if most of its citizens were, like Christians, exponents of the Caesar/God dichotomy, or, in historical terms, heir to two separate traditions, a political and a religious. Otherwise, secularism must be imposed by dictatorship (as was done in Turkey) or democracy must be free to be religious” (Smith, 1951: 96). In Smith’s view, Pakistan is “as a nation, to some degree, by the very process of constructing itself, elaborating a new twentieth-century, and authoritative, interpretation of the religion” (Smith, 1951: 100). Smith also points out that the administrative services, Constituent Assembly, and government (and eventually the electorate, when interpretations are submitted to them for judgment) are not only free to interpret, they are not free to not interpret. In other words, they “cannot evade the responsibility of working out, whether in detailed application in day-to-day problems or in broadest policy, the concrete significance of their vision of the good” (Smith, 1951: 103). In a polycentric order, this means that every action arena unfolds as a practical religious interpretation because of the country’s self-definition. In a heterogeneous social context, a metanorm that respects intent may also be one that respects the individual and group intent at different levels. If freedom of conscience is safeguarded, then institutional choices at constitutional and collective levels across diverse action arenas become coexistent interpretative directions.

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To say that the state should be Islamic is the Pakistanis’ way of saying that the state should be good (Smith, 1951: 98). Any construction, however, can never adequately portray the Islamic ideal: Pakistan as a society cannot, and neither can the erudite words of an alim, or any other actions (Smith, 1951: 102). This is an intriguing suggestion, and it might have to with the basic disjuncture between transcendent, eternal verite, and mundane approximations of understandings, the problem of communication and language and signs. Yet Smith also insists that all practical choices in Pakistan carry a theological significance in that they are indirect or direct reflections of an Islamic political experiment. Smith’s treatise emphasizes the role of intention in pursuit of an ideal as a glue that helped constitute a large community, the shared understanding of which is a form of social capital that lends integrity and cohesion to Pakistan’s diverse and fragmented polity. This suggests a metanorm of mutual acknowledgment, which, without being naïve about the possibility of corruption, nevertheless places faith in the intentions of diverse political actors rather than in a particular formulaic interpretation of claimed “right law” or version of sharia to be imposed across the society. Yet Smith’s work admits to the significant difficulties that may create crises, such as static, maximalist ideas about correct law (what we might term “fundamentalism” today, while keeping in mind that this category is not necessarily inherently religious, but may apply to some assertive forms of secularism also). Rather provocatively, Smith suggests as much in his comments on the revolutionary ambitions of the left-leaning “brilliant and sensitive Lahore poet” Faiz Ahmed Faiz (alleged to have been part of a Communist conspiracy in 1951) and the Jamaat-e-Islami founder Maulana Maududi who were dissimilar but “had this in common”: “both men were so loyal to a vividly conceived and ardently held ideal as to become impatient with the slow process of arriving at it and finally, therefore, disloyal to the actual community” (Smith, 1951: 86). This mirrors Vincent Ostrom’s skepticism about utopian projects that seek a top-down revolutionary remake of the social order, with little appreciation of the diverse exigencies and dispersed information and values involved (e.g., V. Ostrom, 2012 (2002): 619–624). Shortly after Smith’s treatise, political order in Pakistan was shaken by a religious mobilization around the constitutional question of the status of the Ahmaddi sect, and the attempt to exclude Ahmaddi polity members from political office on the basis of their heterodox beliefs. The conflict escalated into riots and public disturbances, representing a substantial threat to the polity’s integrity. The investigative report of a court of inquiry, known in brief as the Munir Report, considered an examination of contestation of constitutional metanorms. In the process, the Munir Report rejects a monolithic, univocal



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understanding of Islam in the Pakistani context. This is often read as support for “secularism” (see the discussion in Chapter 3 and below for elaboration). In taking a position on constitutional norms, the Munir Report’s conclusions are consonant with Smith’s views in that they negate a central state promulgated blueprint of what counts as “Islamic” and as such, provide support for one pillar of polycentric order: an understanding of the need for civic coexistence among heterogeneous normative claims regarding religious legitimacy, and thus the difficulties posed by state endorsement of a sect-specific comprehensive doctrine. If the Smith study can be seen as a summary of the what political project of Pakistan as an Islamic entity meant aspirationally, the Munir Report can be described as an inquiry into the sources of failure and the resulting lessons for polity design. The Munir Report and its findings are partly reviewed below. CONSTITUTIONAL CRISIS OVER POLITY MEMBERSHIP AND AUTHORIZATION Some measure of accountability is needed after a disaster, both as an attempt to ensure a better future, and to assuage the political demand for scapegoats and identifying those culpable. Both the Munir Report and the Hamoodur Rehman Commission Report (discussed in the next chapter) are attempts to account for substantial polity failures, and to consider what is necessary to prevent similar disasters. The inquiry and reflections touch directly on constitutional contestation and choice, and extend to collective and operational levels also. If Pakistan is a practical laboratory, then these are authoritative inquiries into what failed. The Munir Report is also significant as a reflective discourse on the path-dependent development of Pakistan; any further constitutional deliberation would be well served by considering this inquiry. This review considers the text of the Munir Report, and seeks to identify those areas that would fit as constitutional-level deliberations around official jurisdictions, particularly the central state jurisdiction, and including considerations of threats to the polity’s well-being, and contestation over the meaning of “Islamic state.” The authors of the Munir Report were leading judicial figures and part of the “establishment” authority structure. Muhammad Rustam Kayani served in the Civil Service of Pakistan, a powerful elite administrative body, had been a judge in the Punjab High Court, and went on to become Chief Justice of West Pakistan from 1958 to 1962. Mohammad Munir had served as Chief Justice of the Lahore High Court and then became Chief Justice of Pakistan from 1954 to 1960. He is well-known—or notorious—for invoking the “doctrine

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of necessity” that legitimated the dismissal of Khawaja Nazimuddin and the Ayub Khan military coup, although in a later work titled From Jinnah To Zia he appeared to acknowledge a negative long-term consequence in setting some groundwork for Gen Zia’s martial law declaration in 1977. Origins of the Munir Report The official title of the report is “Report of the Court of Inquiry Constituted under Punjab Act II of 1954 to Enquire into the Punjab Disturbances of 1953.” The Munir Report is the result of a government inquiry, mandated by law: By section 4 of the Act, Punjab Act II of 1954, we were commissioned to inquire into the circumstances connected with, and the responsibility for, the disturbances in accordance with the following terms of reference:— 1. the responsibility for the disturbances; 2. the circumstances leading to the declaration of the Martial Law in Lahore on the 6th of March 1953; and 3. the adequacy or otherwise of the measures taken by the Provincial civil authorities to prevent, and subsequently to deal with, the disturbances. (Munir and Kayani, 1954: 183)

The report describes the basic circumstances of the disturbances: The disturbances were the direct result of the rejection by Khwaja Nazim-udDin, the then Prime Minister of Pakistan, of an ultimatum delivered to him in Karachi on 21st January 1953 by a deputation of the ulama who had been authorised to do so by the Majlis-i-Amal constituted by the All-Pakistan Muslim Parties Convention held in Karachi from l6th to 18th January 1953. The ultimatum was to the effect that if within a month the Qadiani Ahmadis were not declared a non-Muslim minority and Chaudhri Zafrullah Khan, the Foreign Minister who is an Ahmadi, and other Ahmadis occupying key posts in the State, not removed from their offices, the Majlis-i-Amal would resort to direct action (rast iqdam). At a conference of the Central Ministers and representatives of West Pakistan Provinces held in the early hours of the morning of 27th February it was decided to reject the ultimatum and to arrest the prominent members of Majlis-i-Amal in Karachi and some leaders of the movement in the Punjab. The disturbances commenced immediately after, and as a direct result of, these arrests. (Munir and Kayani, 1954: 1)

The Munir Commission, however, interpreted its mandate broadly as not merely one of stating events that transpired, but rather of “uncovering causal connections”:



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The direction in clause (b) regarding the circumstances does not mean that we are merely to state the events which occurred before or during the disturbances; we interpret it to mean that we are to discover the causal connection, if any, between the events and incidents that occurred before or during the disturbances and the proclamation of Martial Law in Lahore. The Act also requires us to find where the responsibility for the disturbances lies and, therefore, from the very nature of the inquiry, there must be overlapping of discussion, reference and findings in coming to conclusions regarding the responsibility for the disturbances, the circumstances which led to the promulgation of Martial Law and the measures taken to prevent or deal with the disturbances. (Munir and Kayani, 1954: 183)

The reach of Munir and Kayani’s questioning and deliberation interprets this broadly, to consider narrow and specific proximate factors, as well as deeper underlying theological and political questions about Pakistan’s “Islamic” nature. As the report notes, in the doctrinal aspects of the inquiry, such as in comparing the Qadiani Ahmaddis (also referred by such labels as Qadianis, Ahmaddis, and Mirzais) with others, almost every important branch of human knowledge was touched—religion, philosophy, science, ethics, attributes of God, anthropomorphism, reason and revelation, exegetics, cosmology, creation, time and space, origin and destination of man, aim and object of life, functions of the State and the church, sovereignty, democracy and theocracy,” each being relevant, and the issues raised “are so deep and fundamental that a reply to them one way or the other can make or mar the new State of Pakistan and entirely change the future course of her history. (Munir and Kayani, 1954: 6)

All these suggest that this was in effect an inquiry into the country’s constitutional metanorms. It remains widely cited. Crucially, Munir and Kayani were not able to identify a consensus or even broadly shared answer to a key question: “who is a Muslim?” The question matters because if Pakistan is created for Muslims, and its understanding of Islam is presumably driven by those Muslims, then one must have a shared understanding of who counts as a Muslim. In their review of the claims made by Ahmaddi founder Mirza Ghulam Ahmad, Munir and Kayani are careful to emphasize that they are not legitimating or denying any particular theological position, asserting that it is not their place to assess the validity of the claims: “By a process of reasoning, which we need not explain here because we are neither required nor supposed to give a finding on the question whether any particular interpretation is correct, […] ” (Munir and Kayani, 1954: 188). Munir and Kayani also review Ahmaddi beliefs, particularly with regard to Christology (Ahmad was supposed by his followers to be a Christ-like figure),

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and with respect to jihad (which Ahmad prohibited entirely). The Ahmaddis had split into two, those who regarded their founder (Mirza Ghulam Ahmad) as a Prophet, and those who did not. The Ahrars were an anti-British Muslim activist group with a lineage to the early 1930s. They reputedly referred to Jinnah, known by the honorific title Quaid-i-Azam (the supreme leader) with the disparaging moniker “kafir-e-azam” (the supreme disbeliever). Partition created frustration among the Ahrar because they were disempowered in both Pakistan and India, as power passed to the Muslim League and the Congress Party, respectively. The Ahrars gained notoriety and mobilized as a conflict group focused on anti-Ahmaddi agitation. The Ahmaddis were ridiculed and described as sycophants to the British. In a notorious incident, Army Major Mahmud, an Ahmaddi, was brutally killed in a mob attack that was blamed on antiAhmaddi agitation (Munir and Kayani, 1954: 13–14). One assessment of sectarian tensions in Punjab in 1951 noted the AhrarAhmaddi controversy as the most immediate issue, but also pointed to Sunni-Shia tensions, as well as “Sunni-Wahhabi” conflict over the number of “rakats” of tarawih prayer to be offered in Ramadan (cited in Munir and Kayani, 1954: 34). The specter of other sectarian agitation thus existed in the background while the major focus was on the violent disturbances associated with the anti-Ahmaddi actors. The Agitation as a Struggle for Constitutional Voice The demands associated with the agitation were that Qadiani Ahmaddis should be declared non-Muslims; that Chaudhri Zafrullah Khan should be removed from the Foreign Minister’s post; and that other Ahmaddis should be removed from key state posts. The agitation was targeting figures who were officials of the new Pakistani state: Foreign Minister Zafrullah Khan, and General Nazir Ahmad, among others (Munir and Kayani, 1954: 17). It questioned their suitability for office, and their eligibility. The disturbances came in the wake of an ultimatum issued to Pakistan PM Nazimuddin to declare Qadianis non-Muslims. One looming social consequence was a polarization of communal identities, because undertaking to declare Qadianis non-Muslims would alienate Qadianis, and not doing so would alienate the ulama associated with the agitation. Arguably, the ulama delegation from the Majlis-e-Amal was exercising constitutional choice, or at least proclaiming a constitutional position. Determining the boundaries of polity membership and of who can participate in collective choice is a constitutional-level matter (whether or not it is formally mentioned in a written constitution being a separate matter). That the ulama delegation sought to exclude Ahmaddis from roles in collective choice makes their activity a constitutional one.



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The delegation might have been trying to set up the Ahmaddis as a separate communal jurisdiction from the rest of the country—and in doing so reducing Ahmaddi’s ability to influence the national stage. Less charitably, it may have simply sought to exclude Ahmaddis from collective choice institutions altogether. In this case, a new jurisdiction could have been disempowering instead of being empowering. This could be interpreted as jurisdictional manipulation at the constitutional level for political survival interests—one coalition would like to displace another (the Ahrars sought to displace Ahmaddis), thereby enhancing the Ahrar’s own leadership and constitutional voice. In a way, the entire agitation can be understood as a struggle (misdirected in its methods, according to Munir and Kayani) for constitutional voice. As a strategic choice, “direct action” may reflect a “logic of consequences” approach to constitutional choice, and a form of praetorian politics. Rather than using institutionalized channels for political participation (legal cases, party political platforms, elections, appeals to the Constituent Assembly), the choice was to use strikes, demonstrations, and riots. These contentious tactics—learned from the anti-British actions, as well as communal struggles— operate on a “logic of consequences” in that they aim to hold social stability and political order hostage to the demands of the protestors. This greatly raises the stakes, and, if successful, undermines the institutional channels as they are overwhelmed by mobilized social groups (as argued by Huntington in his study of modernization (Huntington, 1968)). One of the most striking portions of the Munir Report is the summary describing the sequence of conflict escalation, and the contributing strategic factors. Escalation of Demands and Tactics The 1951 Rawalpindi conspiracy events were accompanied by various allegations against Ahmaddis, alleging Ahmaddi infiltration of the Air Force, and Ahmaddi corruption in misusing state money to propagate Ahmaddi doctrines in the United States. The charge was that Ahmaddis were undermining public offices, the state, and the purity of the faith. The speed with which the activist spark caught on and spread exemplifies the emergence of conflict groups and processes of identity mobilization. The seeds had been laid in communal agitations in pre-Partition India, and continued into Pakistan. Looting and arson, and demands for property to be redistributed, suggest that ethnic mobilizations are conflated with or partly instigated by conflicting material claims. Punjab Chief Minister Daultana withdrew the government case against the Ahrar, following a public assurance by Ahrar leaders that they would not resort to violence or lawlessness to pursue their aims of deposing Zafrullah Khan from office and having Qadianis declared a non-Muslim minority. Daultana also withdrew the ban on public meetings of the Ahrars (Munir and Kayani, 1954: 90–91). Things escalated; the Ahrars surrounded a police

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station and attacked after a religious procession was broken up; the police fired and several deaths resulted (the “Kup incident” in Multan, July 18, 1952; described in Munir and Kayani, 1954: 92). The Ahrars referred to the dead as martyrs. Whatever the doctrines the Ahmaddis may have had, Munir and Kayani suggest that their persecution was enabled by scurrilous political factors and expediencies. It is not difficult to picture a largely anti-Ahmaddi constituency gathering for deliberations, and speechmakers playing to the base by outbidding each other with increasingly harsh and extreme rhetoric. Each more extreme condemnation is enabled by the previous one, and the speechmaker’s desire to stake for himself a position on the spectrum (and ideally to poach support from others). Demands escalated in scope, rhetoric became more heated, and tactics increased in contentiousness. Denunciations of the Ahmaddis, and demands that Zafrullah Khan be removed from office, were augmented by a push to have the Ahmaddis declared a non-Muslim minority. The Jamaat Islami was part of this push. Although originally contained to the Punjab, preaching by anti-Ahmaddis led to increasing tensions in NWFP. Some preachers urged that the land in Rabwah be seized from Ahmaddis and distributed to Muslim refugees. The Ahrar movement also sought a commercial and social boycott of Ahmaddis, and advanced their views with sect-baiting rhetoric. An August 14 speech by the Prime Minister only warned against sectarianism and enjoined solidarity rather than giving in to the Ahrar demands. Further rhetorical escalation followed, amid concern that the anti-Ahmaddi momentum was slowing: “Ahrar speakers were reported to have said in the course of their speeches that the Mirzais were murtadds [repudiators of religion] and were ‘wajibu’l-qatl’ [legitimate targets for the death penalty although the phrasing does not exclude vigilante action] according to the tenets of Islam” (Munir and Kayani, 1954: 112). Rhetorical extremism can generate the ideological rationale for vigilante violence, and appears to have influenced some vigilantes. A divide had opened up between those who sought constitutional action, and those who sought “direct action” against the government to press their demands. This quote captures a key motivation for polarizing politicians behind “direct action”: The activities of the elements which are in favour of direct action will be closely watched as their chief object appears to be to bring into disrepute the political party in power and thus add to their own prestige at its cost. (Munir and Kayani, 1954: 114)



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In other words, there is a strategic gain from demonstrating the ability to hurt established political parties. This produced a conflict escalation as a process of extremist competitive bidding took place, with each posture more extreme than the last, trying to make the previous position look weak. As directed by the All Muslim Parties Council of Action of Lahore “YaumiIhtijaj” (Protest Day) was observed all over the Punjab on Friday, the 3rd of October, 1952, and the khatibs of important mosques repeated in the course of their Friday sermons that Mirzais should be declared a minority community, Zafrullah Khan should be removed from his present office and should not be given any other important office, Rabwah should be declared a town open to all Muslims, the land of Rabwah should be distributed among refugees, Mirzais should be removed from high offices and the objectionable Mirzai literature should be forfeited. (Munir and Kayani, 1954: 114)

Many mosques reportedly took up the anti-Ahmaddi call, including the demand that Rabwah be expropriated and turned over to refugees. The anti-Ahmaddi identity mobilization served as a platform for gathering people; other grievances were then added to the gatherings: The significant feature is that after attacking the Ahmadis, most of the speakers run down the Government and accuse it of inefficiency, corruption, food situation, etc. This inclines one to the view that the anti-Ahmadi agitation is used as a device for mobilising public opinion with a view to ultimately arousing contempt and hatred against Government. (Munir and Kayani, 1954: 114)

On February 27, 1953, the central government communicated its view in a telegram: The Ahmadis or indeed any section of people cannot be declared a minority community against their wishes. It is not part of functions of Government to coerce any group into becoming a minority community. (Munir and Kayani, 1954: 147)

Further, the central government declared that no office-holder could be removed solely on the grounds of sectarian affiliation. Orders were issued on March 1 and March 2, 1953, for the arrest of various Ahrar leaders, and the prevention of activists converging on Lahore and Karachi, major urban centers. Instructions included concerns about avoiding “mass arrests of volunteers,” and described plans to intercept activists traveling by train (Munir and Kayani, 1954: 149)—all of which indicates the capacity needed to handle internal predators or social dissent. In the attempt to arrest dissidents, there were clashes, lathi-charges (aggressive police baton

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crowd control actions), and injuries. Word of the violence spread, along with rumors of Quran desecrations, and amid inflammatory rhetoric, more activists joined the fray. The Commission notes an incident where a man carrying a hamail (holy text) was hit by a police officer, but also asserts that any hit on the holy book must have been unintentional, since it is unimaginable for a Muslim to commit such blasphemy (Munir and Kayani, 1954: 155–156). The escalation occurred in a charged atmosphere, and the actual provoking incidents remain shadowed in uncertainty about intention and fact. One rumor was that government workers were striking and had taken the side of the protestors (something that would likely galvanize the protestors further, convincing them of the rightness of their position, and of the weakness of the state, as the state is staffed by people drawn from the same milieu). A Deputy Superintendent of Police was killed by a mob; he had up to 52 injuries (Munir and Kayani, 1954: 156). There were casualties from police firing on mobs; the night of March 4, 1953, was filled with loud “weird and dreadful noises” (Munir and Kayani, 1954: 157). March 5 saw violence directed against Ahmaddis (a number were murdered), as well as looting and arson. Ahrar agitation as a political survival tactic The Ahrar might be described as a preexisting organization that sought influence and power even when the new state has been created: The Ahrar should have had little difficulty in realising that with the creation of Pakistan their past ideology had become obsolete and that there was no scope for their past activities in the new State, but the Ahrar are not made of that stuff, and seasoned agitators as they are, having had experience of championing and conducting many an agitation to enhance their popularity, they began to think of an outlet for their activities in their new surroundings. (Munir and Kayani, 1954: 13)

This quote suggests that the Ahrar were determined to retain their influence in the new Pakistani polity, and this pursuit of political survival motivated their choices.2 Two Ahrar leaders were arrested (“for being engaged in some prejudicial activity”) in 1948, the year after Pakistan was created (Munir, 1954: 13). The Ahrars engaged in vigilante actions, and used the resulting communal polarization and identity group mobilization to boost their own popularity (an interpretation consonant with the interpretation of sectarian activity suggested in Nasr, (2000)). Demonization of the outgroup helps recruit more resources, as asserted by one police assessor of the Ahrar: “greater the virulence of their professional speeches against the ‘Mirzais’ the larger is the collection of chanda [monetary contributions]. The majlis has become financially sound and been able to produce rich patrons” (quoted in Munir and Kayani, 1954: 52).



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In 1949, the Ahrars declared themselves a purely religious party and decided to assist the Muslim League, although their actual record was ambivalent (Munir and Kayani, 1954: 28). Electioneering in 1950 may have helped defeat Ahmaddi candidates for office (some having been nominated by the Muslim League). The Majlis-e-Ahrar merged with the Muslim League, and despite repeated government warnings, the Ahrars continued a “sustained campaign for vilification” against the Ahmaddis into the 1950s (Munir and Kayani, 1954: 15). Some government figures resisted a strong crackdown against Ahrar leaders for fear of turning them into martyrs (Munir and ­Kayani, 1954: 16). Groups participating in the anti-Ahmaddi agitation asserted that they were “religious” rather than “political” (Munir and Kayani, 1954: 184), which, in Munir and Kayani’s view, places some proponents in a self-contradictory, hypocritical position: On this part of the case some of the important parties, as for instance, the Ahrar and the Jama’at-i-Islami, and some divines who at one time belonged to the Ahrar or Congress organisations and before the Partition were pronounced believers in nationalism and a secular State and opposed to the Partition and the Muslim League, have found themselves distinctly embarrassed and in a position of inconsistency and self-contradiction in view of their previous utterances, because if the demands were religious in their character, and religion is both immutable and inflexible, then it becomes somewhat difficult to comprehend how ideology which is based on religion changes from time to time and from place to place. (Munir and Kayani, 1954: 185)

It appears that to Munir and Kayani, religious ideology must be consistently unbending. The Congress-affiliated religious actors are painted as previous secularists who have betrayed their ideologies for political expediency, rather than as pragmatic actors with ideological flexibility in responding to changing circumstances. Moreover, Munir and Kayani allege that the Ahrar and similar groups were unpatriotic, in addition to being hypocritical in their willingness to shed proclaimed stances for political expediency. They report the Ahrar’s opposition to both Congress and the Muslim League, and to Pakistan. The following passage encapsulated Munir and Kayani’s view of the Ahrars: The conduct of the Ahrar calls for the strongest comment and is especially reprehensible—we can use no milder word—for the reason that they debased a religious cause by pressing it into service for a temporal purpose and exploited religious susceptibilities and sentiments of the people for their personal ends. That the Ahrar were sincere in what they did can only be believed by themselves because their past history is so glaringly inconsistent that only a fool could be

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misled by their professions of religiousness. Khwaja Nazim-ud-Din described them as enemies of Pakistan, and this compliment they richly deserved for their past activities. That they turned out to be enemies of the new State when it came into being has been proved by their subsequent conduct. (Munir and Kayani, 1954: 259)

The passage also appeals to the authority of Khawaja Nazimuddin, seen as a pious figure with religious credibility. Munir and Kayani’s judgment appears to draw on their own loyalties to a constitutional metanorm that is not fully specified, except that it clearly identifies sectarian contempt and incitement as contradictory to the polity’s basis. Anti-imperial Narratives The campaign against the Ahmaddis played on anti-imperial and nationalistic sentiments related to Kashmir, in addition to sectarian condemnation: in December 1949, Maulvi Ghulam Ullah Khan described Mirza Ghulam Ahmad as a Dajjal who had been created by the British to disrupt Islamic solidarity and alleged that the Qadianis, particularly Chaudhri Zafrullah Khan, were causing great damage to Pakistan and the Muslim community and that they were arranging to barter away Kashmir for Qadian. (Munir and Kayani, 1954: 16)

In a particularly incendiary rhetorical choice, the Ahmaddi founder is termed as a “Dajjal,” a term associated with end-times prophecies and referring to a false Messiah or an Anti-Christ. In a speech by the Ahrar leader (and noted anti-British orator) Syed Ata Ullah Shah Bukhari, the Ahmaddis were described as “Indian spies” who were “enemies of the state” and should be “routed” if war broke out (Munir and Kayani, 1954: 31). Religious leaders’ opinions became public rationales for the Ahrar agitation. Maulana Shabbir Usmani had in the 1920s authored a pamphlet titled Ash-shahab arguing that Ahmadis were murtads (apostates), and that the appropriate punishment for murtads was death by stoning. Shabbir Usmani, was described by Munir and Kayani (1954: 17) as “Sheikh ul Islam Pakistan” (the authoritative voice of Islam in Pakistan), although the label is misleading if it implies unanimous or even strong majority acceptance of Usmani as the leading jurist. The pamphlet titled Ash-shahab was reprinted and became widely cited as a fatwa against the Ahmaddis. The Ahrars suggested that treason by Ahmaddis was undermining Pakistan’s security as well as the future of Kashmir. In a weak and insecure new state, this scapegoating was a potent political action. The Ahrars struggled to



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obtain political legitimacy because their group had opposed partition and the creation of Pakistan. The Punjab Governor, Abdur Rab Nishtar, suggested that fomenting anti-Ahmaddi sentiment and leading the charge against them was a way to boost the political legitimacy of the Ahrars (cited in Munir and Kayani, 1954: 23). Additionally, the weakness of the Muslim League in the provinces provided an opportunity for the Ahrars to boost their political standing. The anti-Ahmaddi vitriol continued and escalated, with greater insults pitched against Foreign Minister Zafrullah Khan (e.g., referring to him as a “mad dog” at an Ahrar gathering in June, 1950), (Munir and Kayani, 1954: 19). Ahmaddis were scapegoated for national problems; as a vulnerable minority, they were an easy target for nationalist rhetoric. One example was a front-page cartoon on September 11, 1952, in the Azad newspaper, which depicted a multicoloured cartoon showing John Bull as a snake-charmer, who is producing snakes from the basket of Ahmadism. One big snake arises from that basket and is shown to have overwhelmed Qadian (represented by a high minaret). From there it wriggles into a hole and reappears at Rabwah in the shape of Mirza Bashir-ud-Din Mahmud, who is shown to be blowing out three big snakes from his mouth. One of those three snakes is shown biting the late Quaidi-Millat at Rawalpindi; the other one is shown to be sabotaging an aeroplane (implying the Jungshahi air disaster); and the third one, depicted in the shape of Chaudhri Zafrullah Khan, is shown to be threatening to bite the Prime Minister of Pakistan. (Officer report, quoted in Munir and Kayani, 1954: 101)

The Ahmaddis are represented as serpent-like enemies of the Pakistani nation, tools of imperial Britain, and responsible for undermining the country’s military strength and its political leadership. This depiction plays on an increasing conflation of the anti-imperial and anti-Ahmaddi narratives, making them scapegoats in a Pakistani form of Muslim nationalism. Religious Identity-Based Mobilization as a Constitutional Choice Dilemma “Islam” and “Muslim” were rousing terms for identity group mobilization, and continue to be. It is not surprising that groups have adopted these labels from earlier playbooks. Whether the choice is “purely” tactical depends on the actor; Munir and Kayani and others suspect that Punjab chief minister Daultana was engaging in identity group rhetoric as a tactic. This may be Pakistan’s “original sin”; the price is the continuing growth of extreme sectarianism. The seeds of identity group mobilization as a tool for political ascendancy were set early. Some rhetoric started referring to Ahmaddis as zindiq (heretics) and described them as wajibul qatl (obligatory for them to be

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killed) (quotations from proceedings of Ahrar conference at Sargodha, March 28, 1952, cited in Munir and Kayani, 1954: 47–48). The confession of a young zealot, Mohammad Ashraf, who killed an Ahmaddi schoolteacher on October 3, 1950 (Munir and Kayani, 1954: 24–25) vividly illustrates the possible consequences of inflammatory sectarian rhetoric. A High Court deliberation on the appeal against the sentence of life for Mohammad Ashraf (before finally confirming a life sentence rather than a death sentence for a religiously motivated murder) specifies the problem of hate speech: it is most dangerous for leaders of religious communities to attack publicly their opponents from the pulpit […] there are always in this country fanatics who believe that they are the instruments of God in carrying out such punishments. (Munir and Kayani, 1954: 26)

Inflammatory sectarian rhetoric can be considered incitement to violence, and a threat to public order. The High Court verdict and reasoning provides some interesting insights into the mindset of the court (Munir and Kayani, 1954: 25–27). They were in part guided by recognizing that the impressionable young man was affected by fiery preachers, and partly by the caveat that their decision should not set a precedent for religiously motivated murders being more lightly treated than materially motivated ones. Foreign Minister Zafrullah Khan had given a speech at Jehangir Park that became the occasion for riots (Munir and Kayani, 1954: 75). One argument made before the court was that the Ahmadis are an outstanding provocation to non-Ahmadi Muslims and that any public and aggressive propaganda in favour of the doctrines of that sect may amount to grave and sudden provocation so as to reduce the offence of murder to that of culpable homicide. (Munir and Kayani, 1954: 26)

This suggests a perspective advocating constitutional boundaries on some sectarian proselytizing. What counts as “public and aggressive propaganda,” and how to distinguish it from other speech remains unclear. The Munir Report directly deliberated on constitutional limits to tolerance of agitation against a minority. An important quote spells out the constitutional choice problem in terms of a dilemma between respecting the religious sensibilities of the majority or protecting law and order: Should we allow, encourage or connive at activities which aim at physical or religious annihilation of a minor section of our people? The orthodoxy of the Ahmadis is heterodoxy of the non-Ahmadis and if the latter class are allowed



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to inveigh against the Ahmadis, will they also be given the right to declaim from pulpit and platform that what they believe is the truth and the rest all blasphemy? If we concede this right to one section of the public, are we prepared to allow the Christians to preach what they piously believe regarding our Prophet (peace be on him) and shall we be prepared to risk public demonstrations by the Shias of their sentiments towards some of the most illustrious of the sahaba [Prophetic Companions]? Is it the intention to make this country a battle field for warring groups and religions with the ultimate object that the vanquished will either perish or will be converted? The hydra which the Ahrar are trying to raise should be killed before it is hatched otherwise it will devour our freedom and all else that we cherish. This is a matter on which the Centre should give us a lead. This religious belief cannot be enforced by the Ahrar and other non-Ahmadis on the Ahmadis without creating problems of law and order. We should, therefore, know whether considerations of law and order should be given paramount importance or whether we should give priority and precedence to the religious beliefs and the susceptibilities of the majority of our people. All the above points can be settled and the questions answered competently by those who are framing our constitution and whose scope is not limited like that of the Provincial Government. (Note from Home Secretary, July 4, 1952, cited in Munir and Kayani, 1954: 71)

In other words, caving in to the Ahrar demands establishes a precedent for their position as “king-makers” in allowing or disallowing communities from political participation. If Ahrar demands are accepted, is a consequence that future communities must be given a litmus test of accountability before the Ahrars? Moreover, Ahrar success could set an example for others—uncivil agitation on religious grounds brings results. Munir and Kayani are in effect emphasizing and seeking to reinforce a constitutional metanorm that permits religious diversity but restricts religious incitement and predatory behavior. Their advocacy is consonant with the civic requirements for a religiously diverse, polycentric order. Role of Print Media Some urged that the move to have Qadianis declared a non-Muslim minority be pursued in a peaceful and constitutional manner (e.g., the Afaq newspaper, July 10 and 11, 1952; cited in Munir and Kayani, 1954: 85). The Punjab government was alleged to have patronized newspapers to in effect bribe them for more coverage of the Qadiani issue, and thereby increase sectarianism: Though in its issue of 1st June 1952 the “Afaq” had declared itself unequivocally against all sectarianism, in its issue for 4th July 1952, that is to say, just after the receipt of the first installment of patronage, it announced that it would devote special attention to the Qadiani question and start writing special articles

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to show that Qadianis were a danger to the solidarity of Pakistan. Accordingly the first article on the subject was written on 5th July 1952, and a slip attached to a copy of this issue shows that free copies of it were distributed to Friday congregations in mosques. (Munir and Kayani, 1954: 84)

The media, and political corruption, can undermine the social order. Sectarianism may have served the political goals of such figures as Mumtaz Daultana (Chief Minister in the Muslim League Ministry in Punjab, installed April 1951), although it is not entirely clear whether the newspapers were heightening sectarian tensions despite government wishes or because of them. Yet the media played a role; it was partly its own business, seeking sales and profit; it was partly an agent of other forces, ideological and political. Given the power of the media in agenda-setting and framing, the role of the media becomes a matter for collective deliberation. Takfir and Political Survival Takfir (excommunication, i.e., declaring someone to be a disbeliever, outside the fold of Islam) is an extreme among sectarian claims of religious authenticity, representing a sharp break in the presumption of shared community or understanding between groups. As such, it is threatening to the integrity of the polity; in Smith’s terms, it represents a significant increase in contempt between groups. The doctrinal issue championed by the Ahrars was khatme-nubuwwat (the finality of Prophethood), an article of faith that the Ahrars claimed the Ahmaddis had violated). There was pressure on the Muslim League organizations to expel their Ahmaddi members and to declare their stance on the issue. Some Muslim League organizations undertook to do this (e.g., Munir and Kayani, 1954: 94–96). In explaining the Provincial Muslim League position, Daultana engaged in open takfir (excommunication) of the Ahmaddis: To-day Pakistan is the only country in the world which seeks to claim Islamic Government. The whole world is watching us in this experiment and if we failed in fulfilling this responsibility, the world would have an opportunity to say that there is no room for an Islamic form of Government in the world. In the matter of khatm-i-nubuwwat, I have the same belief which a Musalman should have. According to me all those who do not believe the Holy Prophet to be the last of the prophets are outside the pale of Islam. I go further and say that to raise any argument on the doctrine of khatm-i-nubuwwat itself amounts to kufr because an argument is possible only where the matter admits of some doubt. The belief in khatm-i-nubuwwat is a part of our faith and it is above all argument and logic. The Mirzais are themselves responsible for the hatred that has been created against them because of their separatist tendencies. They are separate from us



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in every department of life and have confined their personal, political and social activities to their own class. (Chief Minister Mumtaz Daultana’s speech, August 30, 1952, Hazuri Bagh; quoted in Munir and Kayani, 1954: 97)

Daultana’s statement in effect advocates a constitutional choice position about eligibility for office being based on a religious litmus test. It appears that Daultana recognized the potential for mobilizing political support by targeting the Ahmaddis, and leaped on the bandwagon. As a Muslim League representative and a chief minister, his views would have outside influence, and would have signaled to the Ahrars and their sympathizers that he was aligned with them. His sectarian position was likely to aggravate tensions, rather than building intercommunity understandings for coexistence that protect a vulnerable minority. Interpreted as a strategic choice, this may have been an attempt to signal affinity with (and seek support from) a mobilized political coalition. In further remarks, Daultana emphasized that this was a “constitutional” rather than a religious issue and that all Pakistani citizens were considered loyal and not to be discriminated against. The “constitutional” aspect was that the matter pertained to all Pakistan and not Punjab alone, and therefore had to be dealt with by the Constituent Assembly. An article in August 1952 reported a, communique issued by the Government of Pakistan declaring that no Central or Provincial Minister was to preach sectarian doctrines to his subordinates, and deprecated the disorders, processions and public meetings that were being held against the Mirzais and suggested that the issue should be placed in a constitutional manner before the Constituent Assembly of Pakistan and in the form of a resolution before the Council of All Pakistan Muslim League that was about to meet at Dacca. (quoted in Munir and Kayani, 1954: 105)

This appears to be an explicit order barring espousal of any specific religious doctrine. Yet the Ahrar-led agitation was evidently not resolved by this communiqué. The communiqué does suggest a constitutional position consistent with respect to minarchist polycentric order—that preaching sectarian doctrines by state agents was out of bounds, a position designed to prevent state administrators from treading on religious jurisdictions or taking sides in a sectarian conflict. Complicity of State Officials A significant challenge to a polycentric constitutional order is a predatory central state jurisdiction—where official state agents transgress on their own

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constitutional bounds and undermine the integrity of other jurisdictions. While the problem is potentially broader, of any collective choice unit transgressing upon and undermining the integrity and autonomy of other collective choice units, the problem of central state predation is particularly difficult because central state agents usually have significant coercive policing and military organizations under their authority. There are widely shared assertions of the necessity for such coercive authority as being instrumentally necessary for the orderly survival of the polity. Munir and Kayani spell out their perspective on the fundamental responsibility of the administrators of a state: the functions of a politicians are essentially different from an administrator. As a politician a person or party merely lays down the policy. An administrator, however, has to use, irrespective of any political considerations, the existing machinery of law in order to maintain peace and order and to repel all attacks on the safety of society. (Munir and Kayani, 1954: 276–277)

“Peace and order” and the “safety of society” are thus absolute necessities and must take priority before any other preference. In Munir and Kayani’s view, the crisis escalated because the administrator completely surrendered himself to the politician and not only convicted offenders were released but pending cases and orders under section 144 were withdrawn, and after this no action of any kind seems to have been taken against the Ahrar or other agitators who were left free to carry on their propaganda in any form and to any extent that they liked. (Munir and Kayani, 1954: 279)

In the late summer of 1952, the editor of Nawa-i-waqt, Nizami, charged that Mir Nur Ahmad, Director of Public Relations, was responsible for the anti-Ahmaddi articles, and that the newspapers were doing the government’s bidding, and that the instigator behind Mir Nur Ahmad was Chief Minister Daultana (Munir and Kayani, 1954: 106–107). I. H. Qureshi was convinced of this, and Mir Nur Ahmad admitted it, saying it was an effort to “canalize” the agitation, while Daultana denied all knowledge of it (Munir and Kayani, 1954: 108). In other words, there were strong suggestions that state agents were complicit in the identity mobilizations. While threats to minarchist polities (and polycentric polities generally, where nondominance is an important value) can be categorized as internal predators, external predators, and a predatory state (Malik, 2012), it is also possible for these to collude in complex permutations. The pursuit of political survival by individuals and coalitions may work to the detriment of the whole or produce a collectively unwanted



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outcome (e.g., the disintegration of the polity). In general, polycentric orders are potentially vulnerable to strategies of dominance and while some safeguards can be put in place, protection ultimately depends on a culture of civic artisanship and its habits of heart and mind. Munir and Kayani (1954: 242) also note that several prominent figures involved in the anti-Ahmaddi Majlis-e-Amal which took part in direct action against the government were members of the Talimat-i-Islami (“direct action” and other agitation tactics are learned contentious tactics traceable to the home rule agitations against British rule in India). Because they received government pay, these prominent figures were in effect government servants. All other things being equal, one might expect that those on the payroll would be reluctant to take such action because they will be penalized. Here, Munir and Kayani imply that it was a betrayal of their employer, although one could also suggest that their employment was meant to keep them in check (if so, it failed). “If these gentlemen were so perturbed over the Qadiani issue, they should have like honest people severed their connection with Government before they became parties to a direct action resolution against their own employer” (Munir and Kayani, 1954: 242). The phrase “like honest people” suggests Munir and Kayani’s own normative framework, in which a government servant plays the assigned role to the best of his or her ability, rather than undermining it from within—a “logic of appropriateness” way of thinking that is modern in the sense that it accepts the rationale behind bureaucracies as normatively appropriate, with officeholders following the prescribed protocols to pursue the goals their office requires. Munir and Kayani hold the Talimat-i-Islami board responsible for the disturbances, because they did not come out and publicly declare that the agitation was wrong (Munir and Kayani, 1954: 242–243). Further, this presumption of a recognized common norm guiding appropriate state behavior overlaps with the minarchist polycentric metanorm, which restrains the state and its officials from endorsing a particular sectarian position. Munir and Kayani were particularly vexed by Provincial Muslim League participation in the anti-Ahmaddi actions, which they argue was tantamount to subversion and paradoxical because the Muslim League was in government at that time: How persons subject to the discipline of the Muslim League could take part in such a movement or in the direct action campaign that was subsequently launched, is beyond our sense of propriety and decency to comprehend and no attempt has been made to explain this apparent act of indiscipline and disloyalty to that organisation. (1954: 267)

“Propriety” and “decency” refer to a logic of appropriateness. Munir and Kayani make repeated reference to “honor” in their assessment of behavior;

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Khawaja Nazimuddin was “an honorable man,” “too honorable to resort” to certain political tricks (although he actually did resort to them, in offering a ministry to some of the ulama in the agitation) (Munir and Kayani, 1954: 282). “Honor” refers to the degree to which acclaimed values are actually internalized as guiding norms in an actor’s behavior. It may be shorthand for a “logic of appropriateness” in the sense that the label matches what polity participants would acknowledge is the appropriate behavior for an officeholder (despite the knowledge that operating according to a logic of consequences and exploiting one’s position in violation of appropriateness through shirking might have payoffs). Some Ahmaddi government officials apparently did proselytize and try to propagate the Ahmaddi sectarian doctrines. Munir and Kayani note that this is “unfortunate” and improper behavior for a government official; it emboldens others in the sect to more aggressively engage in propagation. But the Commission still absolved the Ahmaddis of primary responsibility for the agitation (Munir and Kayani, 1954: 260–261). The episode points to one source of error in the polity as the departure of some officials from a constitutional metanorm of appropriate behavior. Jihad as an Invoked Symbol Another major threat to public order is the call for vigilante violence, meaning coercive actions not sanctioned by the central state. In this context, claims that direct action or vigilante violence were acts of jihad—a religiously legitimate struggle—are potent rhetorical devices. The commission notes that “posters appeared on the walls calling upon policemen to lay down their arms because the struggle against the Government was a jihad in which no Muslim could fire upon another Muslim” (Munir and Kayani, 1954: 158). Religious counterarguments are possible, such as the claim that suppression of riots by the police were a jihad, or a more authentic jihad. But religious symbols invoked by vigilantes can be difficult to counter in this way. In Gujranwala, there were more examples of the way that jihad declarations were used to undermine the legitimacy of the military—or subject government forces to the litmus test for legitimacy described by the vigilantes: When the military arrived, it was welcomed with shouts of “Pakistani fauj jis ne Sialkot goli chalane se inkar kar diya zindabad, Pakistani fauj zindabad” [Long live the Pakistan army which refused to fire in Sialkot]. It was being announced by the agitators throughout that they were engaged in jihad, a crusade against infidelity, and posters appealing to the police and the military not to fire but to join in the jihad were put up in several places. (Munir and Kayani, 1954: 176)



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In Sialkot on March 3, 1953, there was a confrontation with the army in which the army flag was burned (Munir and Kayani, 1954: 172). The direct confrontation with the military contrasts with a report elsewhere where rioters confronted the local police but still said “Pakistan Army zindabad” (Long live the Pakistan Army; a slogan of support). Referring to Sialkot, the Munir Commission absolved the police and military from responsibility, stating: “It is our considered finding that in handing over the situation to the military more than once, the District Magistrate acted wisely and courageously and thus saved the law and the power behind it from public humiliation and ridicule” (Munir and Kayani, 1954: 173). Those that tried to temper the agitators were themselves sometimes attacked as kafir (disbelievers) or Mirzai (another name for Ahmaddi). In Rawalpindi, the Commission notes its view that state functionaries were being affected: The morale and loyalty of the lower ranks of the police and the army began to be affected because of the character of the agitation, and most of the Muslim League leaders and local M. L. As. went into hiding and refused to come out to face the public. In fact they played a double-role, outwardly siding with the authorities but inwardly supporting the agitation. (Munir and Kayani, 1954: 178)

In effect, the Ahrars targeted the Ahmaddis and using the resultant identity mobilization to boost their authority. Escalating numbers that show up in protests, participated in hartals (commercial strikes), and other contentious tactics. In Munir and Kayani’s view, mob violence and unrest had undermined society’s basic function, and necessitated martial law (1954: 184). An Islamic State? Munir and Kayani (1954: 204–205) survey suggestions (from across the religious and cultural spectrum) on what the purpose of the state should be, and who should have control over it. The Report goes on to explore claims about the “essentials of Islamic state”; “sovereignty and democracy in Islamic state”; “position of non-Muslims”; “jihad”; “legislature and legislation”; “apostasy”; “propagation of other religions”; and other elements related to constitutional-level arrangements. Munir and Kayani summarize their reasons for inquiring into the “Islamic state”: We have dwelt at some length on the subject of Islamic State not because we intended to write a thesis against or in favour of such State but merely with a view to presenting a clear picture of the numerous possibilities that may in future arise if true causes of the ideological confusion which contributed to the

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spread and intensity of the disturbances are not precisely located. […] If there is one thing which has been conclusively demonstrated in this inquiry, it is that provided you can persuade the masses to believe that something they are asked to do is religiously right or enjoined by religion, you can set them to any course of action, regardless of all considerations of discipline, loyalty, decency, morality or civic sense. (Munir and Kayani, 1954: 231)

Munir and Kayani lament the misbehavior by politicians, government servants, and other social sectors in the course of the anti-Ahmaddi riots, and suggest that this is due to confusion about the nature of Pakistan. The problem is caused by a misconception: Pakistan is being taken by the common man, though it is not, as an Islamic State. This belief has been encouraged by the ceaseless clamour for Islam and Islamic State that is being heard from all quarters since the establishment of Pakistan. The phantom of an Islamic State has haunted the Musalman throughout the ages and is a result of the memory of the glorious past. (Munir and Kayani, 1954: 231)

Munir and Kayani thus reject the idea of a religious doctrine endorsed by the state as a constitutional choice. They do not explicitly consider the implications of polycentric order, continuing to treat the question as one defined by the state and individuals. An implicit modernity/tradition dichotomy appears to have shaped Munir and Kayani’s assessments (they view religion as more a private matter for the individual in the modern era, in contrast premodern attachments to parochial community practices; those communities have become increasingly dislocated with modernization). In contrast, the anti-Ahmaddi agitation seemed to get much of its rhetorical ammunition from the imperialism/resistance framework, suggesting that Ahmaddis are an imperial religion-building implant (an effort to transform indigenous religion into something more pliable and passive) or an imperial divide-and-rule ploy (an effort to create mutually hostile factions, allowing imperial influence to continue). The Ahmaddi denunciation of armed jihad seemed calculated to crush resistance against empire, which provided rhetorical ammunition to those who depict the Ahmaddis as imperial stooges. Khilafat The question of khilafat (caliphate) had global resonance in postcolonial Muslim states after the demise of the Ottoman caliphate. In the South Asian context, a “Khilafat Movement” had actively sought to assist Ottoman ­Turkey. In an interesting exchange, Munir and Kayani questioned Maulana Tajuddin, a religious figure, on the matter of caliphal authority. Maulana



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Tajuddin asserted that there could only be one khalifa for the Muslims, and then acknowledged that Pakistan should have the khalifa for all Muslims, but cannot in practice serve this function, due to political expediency. Munir and Kayani judged Maulana Tajuddin’s responses to be incoherent and confused. Yet Tajuddin’s responses touch on a broader issue in the Pakistani identity: given that it was a state for Muslims, and that Muslims were globally dispersed well beyond Pakistan alone, Pakistani identity may imply a claim to representative authority over all Muslims. Similar issues may have been echoed in some early pan-Islamist themes among some Pakistani leaders, such as Chaudhry Khaliquzzaman, who expressed an interest in a Muslim unity plan called “Islamistan.” Secularism and the Polycentric Approach The bigger question is over the principle of whether and when religious matters should be discussed and determined by the state; this is what likely gave Khawaja Nazimuddin pause as he considered the anti-Ahmaddi demands (Munir and Kayani, 1954: 233). According to Munir and Kayani, the fact that the demands were couched as being in terms of Islam and the Islamic state meant that no one dared to oppose them, not even the central government (Munir and Kayani, 1954: cite). Al-Naim (2008) makes a similar claim: asserting that sharia requires a certain path that makes it difficult for opponents to voice alternatives for fear that they will be labeled impious or anti-religious. Al-Naim’s solution—to ban all reference to sharia from policy deliberation and rationale—appears to be an extreme, and would likely create substantial opportunity for revolutionary challenge. The polycentric metanorm permits normative diversity, and encourages respect for alternative perspectives as legitimate possible interpretations of religious guidance. This is often the case de facto, in the fact that communities coexist amid different practices—such as the Shia processions that commemorate al-Husain (while Sunni compatriots do not), and the different understandings of rules of marriage or zakat. While there are some clashes around these occasions of high-profile differences, there is also substantial mutual acceptance. The polycentric metanorm expresses this acceptance at a constitutional level. This is not without risks, because to open a sense of permission risks a backlash from those with exclusive truth claims. Not articulating the metanorm, however, brings its own risk: because the situation is left ambiguous, if a group or jurisdiction or faction decides to attack another as “unIslamic,” there is not an explicit bar on how far the attack can go, up to an including persecution or communal violence. The minarchist polycentric approach thus represents a point somewhere between an assertive secularism and endorsement of a particular comprehensive doctrine of Islam as the official state position.

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The universal pontifex and lack of church make it difficult to identify an authoritative voice that “speaks for Islam.” Looking for consensus positions is usually not an answer, because one must identify the community within which consensus obtains—a recursive, second-order problem, as specifying the boundaries of the appropriate community is itself a decision. Munir and Kayani questioned how unanimous the anti-Ahmaddi feeling was, and whether the signatories actually represented the sects they claim to speak for (Munir and Kayani, 1954: 185–86). A key reflective passage (Munir and Kayani, 1954: 186) considers the relationship between Pakistan and Islam. Munir and Kayani suggest that certain ulama and activists have been asserting that Pakistan’s raison d’etre is to establish an Islamic state. The Objectives Resolution was the starting point in arguments made by the ulama and others pushing for the anti-Ahmaddi policies. Pakistan’s leaders had been calling for an Islamic state based on Quran and sunna, and the ulama presumed that this meant that their views would be “warmly welcomed” (Munir and Kayani, 1954: 186). Perhaps crucially, this meant, intention to establish in Pakistan an Islamic State with a set-up of political, social and ethical institutions of the Islamic pattern. […] What, therefore, was necessary for the ulama to get an acceptance of the demands was merely to prove by theological argument that the Ahmadis were a distinct and ­separate community outside the pale of Islam and not entitled to take any part in the public affairs of the country which were to be managed and conducted strictly in accordance with the rules of Islam. (Munir and Kayani, 1954: 186)

Munir and Kayani go on to distinguish Islam as follows: when it is stated that Islam is a religio-political system, what is intended to be conveyed is that it has a cultural complex embracing specific political structures and legal and social traditions as distinguished from the Islamic dogma, cult, ethics and family institutions. This conception of Islam is partly borrowed from European terminology, but is also based on the doctrine of Darul Islam; a country with an exclusively peculiar outlook on life basing all its institutions on, and directing its activity to the attainment of ends enjoined by, Revelation. (Munir and Kayani, 1954: 186)

Taking this broad view of Islam suggests that the state can be both Islamic as well as not endorse (or discredit) a particular sectarian position—although the point is somewhat confused by Munir and Kayani’s repeated use of “Islamic state” to refer to endorsement of a particular sectarian doctrine and its transformation into formal constitutional requirements. On balance, Munir and Kayani affirm a view that is partly consonant with the polycentric



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perspective: that achieving Islamicness was not dependent on adopting particular doctrinal positions as the basic public law: The sublime faith called Islam will live even if our leaders are not there to enforce it. It lives in the individual, in his soul and outlook, in all his relations with God and men, from the cradle to the grave, and our politicians should understand that if Divine commands cannot make or keep a man a Musalman, their statutes will not. (Munir and Kayani, 1954: 231)

This perspective, however, does not differentiate between the central state and other jurisdictions. It remains unclear whether Munir and Kayani would endorse jurisdictions that have adopted their own statutes in relevant issueareas, particularly if individuals have the right of dissociation. Munir and Kayani are partly influenced by Enlightenment-based education, as evidenced by their acknowledgment of European concepts in understanding how Islam and state are related in Pakistan, and in their relatively individualistic conception of faith-practice. The interviewed scholars and activists sometimes appear authoritarian and coercive in their grand assertions, which undermined the potential moral legitimacy of their positions as arguments. The diverse, apparently contradictory, and sometimes coercively inclined policy opinions among the Munir Commission’s interviewed scholars and activists appeared to be a recipe for anarchy and violence. Munir and Kayani advocate what appears to be compatible with a minarchist vision in the sense that they elevate the role of private conscience over that of public law, subject to constraints of civic coexistence with those with whom they disagree. Munir and Kayani do not articulate a polycentric position as used in the Bloomington school in that they do not comment on the possibility of community rules and jurisdictional types that are tailored to diverse understandings of “Islamic” and other rules. But their approach has an important compatibility with both Smith’s view of Pakistan as an Islamic state, and with polycentric design in their emphasis on not translating specific Islamic injunctions into public law at the central state level. Munir and Kayani (1954: 201) note that building an “Islamic” state is difficult, and cite Iqbal, Maudoodi, and others to suggest that pre-Partition, the envisaged Pakistan was to be secular. The Munir Report also quotes a larger text from Jinnah’s 1947 address to the Constituent Assembly is also quoted, in which he asserted that divisions (ethnic, sectarian, and religious) served the interests of imperial control, and overcoming these divisions was the key to success. After stirring anti-imperialist language, Jinnah went on to say: You are free; you are free to go to your temples, you are free to go to your mosques or to any other places of worship in this State of Pakistan. You may belong to any religion or caste or creed—that has nothing to do with the business of the State. (Munir and Kayani, 1954: 202)

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After urging fealty to the “fundamental principle” of the equality of citizens before the state, Jinnah urged the following: we should keep that in front of us as our ideal and you will find that in course of time Hindus would cease to be Hindus and Muslims would cease to be Muslims, not in the religious sense, because that is the personal faith of each individual, but in the political sense as citizens of the State. (Munir and Kayani, 1954: 202)

These remarks have been cited elsewhere as evidence for Jinnah’s advocacy of a secular order. The Munir Commission reports that when they put this model of Pakistan before the ulama and others, it was rejected. There is a further claim: The Quaid-i-Azam’s conception of a modern national State, it is alleged, became obsolete with the passing of the Objectives Resolution on 12th March 1949; but it has been freely admitted that this Resolution, though grandiloquent in words, phrases and clauses, is nothing but a hoax and that not only does it not contain even a semblance of the embryo of an Islamic State but its provisions, particularly those relating to fundamental rights, are directly opposed to the principles of an Islamic State. (Munir and Kayani, 1954: 203)

In other words, the Pakistani constitution was seen as being too secular, and the push was part of a broader agenda seeking “Islamization.” Somewhere between being a hoax, a mistake, or a base for Islamization, lies the interpretation of the Objectives Resolution and other constitutive impulses as compatible with a polycentric metanorm. In Munir and Kayani’s view, therefore, Pakistan was intended to be “secular.” However, the way they define “secular” is that the state does not endorse any particular sect’s doctrine of Islam. They proceed based on the historical fact of the Objectives Resolution, but not the narrow interpretation of it made by some religious activists with a specific constitutional vision of Islamic doctrines. Rather, Munir and Kayani’s approach is closer to Smith’s view, which emphasizes the fallacy of adopting any static formula as the definitive “Islamic state,” and instead requires an open-ended dynamic flexibility at every social level, since what is considered “good” by polity members can and does differ with individual and community in the vast and diverse country. Munir and Kayani are unclear about whether they support secularism at the central jurisdiction level only, or secularism all the way down through diverse arrangements for collective governance in the society. The former view is more consonant with the polycentric approach than the latter.



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Non-Muslims’ Rights in Constitution and Metanorm As part of their inquiry into positions on the proposed unequal treatment of religious minorities, Munir and Kayani asked what would happen if reciprocity was allowed, and India was allowed to build its laws on a Hindu basis: would it be acceptable to have Muslims disenfranchised in India? The ulama questioned generally responded by saying that they would march on India to rescue the Muslims, among other responses (Munir and Kayani, 1954: 227–230). This response notwithstanding, the exchange reveals a possible interpretative argument on the maslaha, or public interest, at stake. Muslim treatment of non-Muslims in their midst has implications for the treatment of Muslim minorities in non-Muslim societies (of which an ample number are to be found in India). This suggests a general bound on particular ideological preferences with regard to domestic policy toward minorities: the preferences may be superseded by a general concern for the welfare of Muslims elsewhere. Indeed, the 1950 Liaquat-Nehru Pact aimed to secure the rights of minorities in each country—to provide “complete equality of citizenship, irrespective of religion, a full sense of security in respect of life, culture, property and personal honour, freedom of movement within the country, freedom of occupation, speech and worship, subject to law and morality” (quoted in Hamoodur Rehman Commission, Chapter 10, Section 4, p. 132). The Hamoodur Rehman Commission goes on to note that the pact has been frequently broken (pointing to the treatment of Muslims in India, in Section 5, p. 132), but the existence of the pact demonstrates how the concern with reciprocity could encourage stronger protections of minority rights in Pakistan. Munir and Kayani also note that Pakistan’s early Constituent Assembly interim report on citizens’ rights included freedom of religion, and that restrictions would also violate the international human rights covenant drafted for the UN general Assembly: Under the Constitution Act, neither Chaudhri Zafrullah Khan nor any of the Ahmadis occupying a public position could be removed from his office on the ground of his religious belief and the Constituent Assembly of Pakistan had, as early as 6th October, 1950, adopted an interim report on fundamental rights of the citizens of Pakistan, by which every duly qualified citizen was declared to be eligible to appointment in the service of the State, irrespective of religion, race, caste, sex, descent or place of birth and every citizen’s right to freedom of conscience and to profess, practise and propagate religion was guaranteed. The Draft International Covenant on Human Rights prepared by a Commission on Human Rights appointed by the General Assembly of the United Nations Organisation, of which Pakistan is a member, had provided by Article 13 that every person shall have the right to freedom of thought, conscience and religion, including the freedom to change one’s religion or belief and to manifest such religion or belief in teaching, practice, worship and observance. (Munir and Kayani, 1954: 233)

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Munir and Kayani go on to note that restrictions on freedom of religion would arouse negative international attention to Pakistan. This represents Munir and Kayani’s own constitutional claim that religious rights were guaranteed to all Pakistani citizens, and that the Ahrar goals violated these constitutional guarantees. Beyond the formal legal constitution, Munir and Kayani also consider liability “on general principles of human conduct” (Munir and Kayani, 1954: 242). In other words, there are unwritten ethics that are expected to be followed, and whose violation raises the dastardliness of a crime. This suggests an informal institution at work in a polity—a metanorm that supports plural approaches to religion and different religious identities in coexistence, without official endorsement of one over the others. Below, I turn to the first official constitution drafted in Pakistan, the product of extensive deliberation, during which the question of religious identity and the rights of minorities was prominent. ISLAM AND THE 1956 CONSTITUTION The draft constitution produced by the second Constituent Assembly included the 1949 Objectives Resolution in the preamble with a new clause: “Whereas the founder of Pakistan, Quaid-e-Azam Muhammad Ali Jinnah, declared that Pakistan would be a democratic state based on Islamic principles of social justice” (quoted in Hamid Khan, 2009: 93; full resolution quoted in Chapter 1 of this book). The final constitutional draft collected secular rules for democratic government and administration, while including clauses that “reaffirm and secure” Pakistan’s “Islamic” character (Choudhury, 1955: 591). Under the draft 1956 Constitution, Pakistan would be a Federal Republic consisting of East and West Pakistan, and would be called the “Islamic Republic of Pakistan” (Hamid Khan, 2009: 94). In this sense, the draft 1956 Constitution embodied a key portion of the minarchist metanorm: it affirmed Islamic national character but not a specific sectarian doctrine that would translate to public law, leaving legislation open to the democratic process. This picture was complicated by the repugnancy clause, described below. The Repugnancy Clause The “repugnancy clause” stated that “All existing laws shall be brought in conformity with the injunctions of Islam as laid down in the Holy Quran and Sunnah… and no law shall be enacted which is repugnant to injunctions of Islam” (Choudhury, 1974: 11). The repugnancy clause was found in Article 227 of the 1973 Constitution, comparable to Article 198 of 1956 and Article 198 of the 1962 Constitution (Choudhury, 1974: 11). The Talimat-i-Islamiah



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was an ulama board associated with the Constituent Assembly. Prime Minister Nazimuddin proposed in 1952 that an ulama board could act as a court and vet legislation for repugnancy to the Quran and sunna. Protests meant that this power was given to the Supreme Court (Choudhury, 1955: 591). According to Article 198 of the 1956 Constitution, the president was to appoint a commission to recommend (through a report due in five years) how and when to bring existing laws into conformity with Islamic injunctions, and the National Assembly was to enact laws within six months. In practice, the 1958 coup forestalled the implementation of the 1956 Constitution. Choudhury (1974) suggests that national leaders such as ZA Bhutto and Ayub Khan made cynical use of Islam, assigning vague, high-sounding guidelines without real power. This was a pattern in Pakistan: “While such provision appears to have far-reaching implications and might be expected to engender radical reforms in legal and social systems in Pakistan in pursuance thereof, Pakistan has long been accustomed in actual practice to such highsounding constitutional phrases without any change either in its legal system or in socio-religious spheres” (Choudhury, 1974: 11–12). Subsequent clauses water down the possibility of radical change by introducing “elaborate and complicated procedure” (Choudhury, 1974: 12). The repugnancy clause was thus primarily symbolic rather than a substantive shaper of national policy. (There was to be a shift in the effort to show substantive legislative impact of “Islamic” considerations under the Zia regime.) Minorities Article 198 of the 1956 Constitution (related to repugnancy and bringing laws into conformity with Islamic injunctions) clarified that nothing within it would affect non-Muslims’ personal laws, non-Muslims’ status as citizens, nor any other constitutional provision (Hamid Khan, 2009: 110). The 1956 Constitution itself is lengthy and contains an idealistic vision: a comprehensive Bill of Rights guaranteeing citizens equality before the law, freedom from persecution, the right to apply for a writ of habeas corpus (except in cases of internal or external security threats), protection from discrimination, slavery, servitude, and cruel treatment, eligibility for state office irrespective of religion freedom of conscience and mobility, and freedom of conscience (Hamid Khan, 2009: 99). The president, however, was to be at least 40 years old and a Muslim. One argument was that as an Islamic Republic, it was logical that the president, who symbolized the country, should be a Muslim. Another argument was that the parliament held real power, and consequently, non-Muslims would not be reduced to second-class citizen status by this requirement. The vice president was not required to be Muslim. Constitutional drafts

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have generally included the requirement that the head of state be a Muslim, which was controversial, causing resentment among Hindus of East Pakistan in particular (Choudhury, 1974: 12). A prominent Hindu protested this vociferously, saying that it had stolen the possibility of a dream from the non-Muslims. The 1950 Liaquat-Nehru Pact aims to secure the rights of minorities in each country—to provide “complete equality of citizenship, irrespective of religion, a full sense of security in respect of life, culture, property and personal honour, freedom of movement within the country, freedom of occupation, speech and worship, subject to law and morality” (quoted in Hamoodur Rehman Commission, Chapter 10, Section 4, p. 132). While being “subject to law and morality” is potentially a far-reaching constraint, the pact was prima facie remarkable for the extensive equality it promised. The Hamoodur Rehman Commission went on to note that the pact has been frequently broken, pointing to the treatment of Muslims in India (Hamoodur Rehman Commission, Section 5, p. 132). A committee on Fundamental Rights and Matters Relating to Minorities presented a report to the Constituent Assembly, which was accepted in 1950; the fundamental rights included “equality of all citizens before the law; equal protection of law to all citizens; no discrimination on grounds of religion, race, caste, sex, or place of birth with regard to access to places of public entertainment, recreation, welfare, or utility” (Hamid Khan, 2009: 66). All citizens irrespective of religion, race, sex, or descent, would be eligible to hold state office. Importantly, no one would be taxed for funds to propagate any religion other than his own religion; “The non-Muslim members of the Constituent Assembly often expressed the apprehension that in an ‘Islamic state,’ Islam would be propagated and maintained with public money and that the non-Muslims would be forced to pay taxes for this purpose” (Hamid Khan, 2009: 66). The committee on matters related to minorities asked what political and economic (and educational, social, and cultural) safeguards there would be (Hamid Khan, 2009: 66–67). One suggestion was that Hindus should get extra weight in terms of seats in the East Bengal legislature, be protected from the threat of physical persecution, “possess freedom of conscience in the widest sense,” and to have the right to run their own schools as long as the schools conformed to general educational guidelines and did not inculcate a “spirit of hostility to the majority of the state” (cited in Hamid Khan, 2009: 67). In its final report on minority rights, the Constituent Assembly added further safeguards, including noting that any minority with a distinct culture or language would not be prevented from protecting it. According to Calder (1956), a debated area in the Constituent Assembly revolved around minorities’ rights and the choice between separate and joint



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electorates. Direct comparisons between Pakistan and India were made in the course of arguments. Some strong concerns were expressed on whether or not the constitution should be “secular” or “Islamic.” Being “Islamic” had a perceived impact in denying Hindus and other non-Muslims opportunities for obtaining certain high offices. This raises a crucial question for a polycentric metanorm: how Islamic rationales can provide citizenship rights to members of other traditions in the polity, and the what, when, where of these consequential issues. The Constituent Assembly debates and records speak to these concerns; the compromises and outcomes of the Constituent Assembly efforts suggest one outcome from that period, but not the only one that is possible. Other deliberations and negotiations could potentially produce different outcomes, and the polycentric metanorm does not prespecify these. CONCLUSION Pakistan’s constitutional-level contestations have been substantially concerned with what it means to be “Islamic.” There is an orientation consonant with polycentric constitutional understandings within an Islamic self-conception in Pakistan, although it is heavily contested. This chapter has surveyed an early treatise emphasizing the role of intent in Pakistan’s self-definition as an Islamic state (Smith, 1951); the results of an extensive investigation into an agitation that might be described as a struggle over competing constitutional visions (Munir and Kayani, 1954); and touched on related matters in the formal constitutional document of the decade, the draft 1956 Constitution produced by the Constituent Assembly. An Islamic state in the W. C. Smith elaboration is one in which people sought to be good in terms of what Muslims consider to be good, but recognized that it was the effort in this direction, rather than a particular static legal formulation, that made the state “Islamic.” Furthermore, Smith’s treatise attaches logically to the polycentric metanorm, because it delegates wide authority for people individually and collectively, in their diverse arenas, to pursue their consciences and interpretative prerogatives in seeking the “good.” Alternatively, there are the various visions described in Munir and ­Kayani’s interviews with activists and religious leaders after the Ahmaddi riots. These alternatives suggest that in order to be “Islamic,” certain litmus tests must be fulfilled. They may include tests of citizenship (in the excommunication of Ahmaddis and the effort to exclude them from public office) or declarations of absolute adherence to specific policies. Similar themes have recurred in the Nizam-e-Mustafa movement, Zia-ul-Haq’s regime, an in the agendas of militant sectarian groups. These approaches reside in Pakistan’s history and

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can be interpreted as contestation over what appropriate “intent” should be in constitutional design. They reflect the fact that the minarchist polycentric metanorm, although it exists, is contested by others that may variously be called theocratic, maximalist, monocentric, or even authoritarian or totalitarian in their vision. The 1956 Constitution included important minority safeguards, and also emphasized the democratic character of the polity, while also stressing a decentralized governance structure. At the same time, the 1956 Constitution included directive principles of state policy, including steps to enable Muslims to order their lives in accordance with the Quran and sunna, prohibiting drinking, gambling, and prostitution, while requiring the compulsory teaching of the Quran and the “proper organization” of mosques (Hamid Khan, 2009: 100). According to the 1973 Constitution, the state religion is Islam; policy decisions by state functionaries are to include steps toward enabling Muslims to individually and collectively live in accordance with Islam, and to understand the meaning of life according to Quran and sunna (Hassan, 2006: 281). According to Articles 62 and 63, Pakistan’s constitution requires that every person holding a position of authority must not be devoid of complete obedience to Islamic values. Speaking against the Islamic ideology of the nation is an affront to the constitution (Hassan, 2006: 281). What counted as “Islamic state” appeared to shift away from the encompassing intentioned view described by Smith (1951) to more specific central state authority positions on religion. The Nizam-e-Mustafa (Prophetic system, an appeal for a more religious governance system) movement agitated against ZA Bhutto’s regime. ZA Bhutto in effect declared Ahmaddis to be non-Muslims. Zia-ul-Haq’s military coup was followed by the Hudood Ordinances, the Federal Shariat Court, and blasphemy laws, as described in the introductory chapter. These can be described as challenges to the polycentric metanorm, particularly in its minarchist manifestation, and closer to what Smith (1951) would have considered static blueprint versions of the “Islamic state.” There is a slippery slope possibility: that the central state jurisdiction ruling on the religious boundary question turns into ever-increasing questions of interpretation of religion that are given official pronouncements to be applied across the polity, and this ends up producing a monocentric monolithic order. At the same time, all jurisdictions have institutional rules about boundaries, and who can participate on what terms (even if the default “rule” is one of “no restrictions”). If the slippery slope toward central state rulings on an ever-increasing number of questions of religious interpretation can be avoided, then it is possible to have a polycentric order with some central state rulings. Such an order could be polycentric but not necessarily minarchist; for example, it might be ordoliberal, or reflect another starting assumption of polity-wide rules. While it is not necessarily the case that a central state’s



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polity-wide ruling on one question would lead to increased demands for rulings on other questions and a more monocentric order, the impulse in this direction has been present in the Pakistani case. Nevertheless, there is a lineage for a minarchist polycentric metanorm in the Pakistani context, even if it has been (and continues to be) strongly contested. In view of Pakistan’s heterogeneity, referring to Islam has been described as a requirement: “this is an age of national states, and if we cannot have the basic foundation of Islam in Pakistan’s constitutionalism, the future of the Federation, itself composed of diverse ethnicities, faces a dangerous prospect” (Hassan, 2006: 281). Even “secular” parties have insisted on a state based on Islamic heritage (Hassan, 2006: 281). General Musharraf’s address on January 12, 2000, called for “secularism” (Hassan, 2006: 281), but it was also Musharraf’s deal-making with the Muttahid Majlis-e-Amal that permitted the attempted Islamization of laws in the North-West Frontier Province (now known as Khyber Pakhtunkhwa). There are struggles in Pakistan between a cosmopolitan Islamic selfunderstanding (which complicates the role of the bounded state in Pakistan) and statist understandings and the “nationalism” of the two-nation theory. Without going into the different discourses, I suggest that the polycentric constitutional metanorm is a “holding-together” stance of political Islam, akin to “holding-together federalism” that Alfred Stepan contrasted with the tradition “coming-together federalism” model in which preexisting units create a polity (see Chapter 2). In the holding-together model, units are empowered after initial creation as a way to keep them within the polity. In the same way, Pakistan has inherited diverse, often sharply distinct and polarized approaches to Islam, and promoting a polity-wide metanorm that fosters coexistence among these increasingly mobilized groupings might be necessary to defuse sectarian conflict. Institutions contain normative prescriptions, and can “help to constitute a basis for an adaptive community of understanding, and, in this way, can contribute to the wealth of social capital (Shivakumar, 2003)” (Gibson et al., 2005: 30). Some interviewees in the Munir Report seemed to presume that religious preference trumps political duty—as if commitment to polity is not itself a religious matter, and as if religion and politics can be separated as distinct spheres in this way. Religion and politics are closely intertwined in the Pakistani context and to insist that a choice can be either religious or political, but not both is not persuasive. If religion offers guidance on how individuals and societies should live their lives, and politics is about who gets what when and how, then religion provides prescriptions for politics. But religion is also filled with symbol that is open to interpretation. That means politics is intertwined with religious argument, since it involves the manipulation of symbols. Religious argument has political consequences, and the argument

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may itself be the end-goal, or may be a tactical choice in pursuit of a political distributional goal. The Ahrar-led agitation against Ahmaddis and the struggle for autonomy in East Pakistan can both be understood as attempts by marginalized groups to exercise constitutional choice; the commissions’ deliberations in their aftermath serve in part to as a review of implications for constitutional choice. In both cases, it was a failure to deliver a workable response or an acceptable compromise that resulted in breakdown and violence/war. There appear to be few functional restraints on appropriate behavior in constitutional choice matters, producing praetorian outcomes, such as the military regimes during which collective choices are exercised by the military. Pakistan has struggled with institutions to help deliver constitutional choice effectively at the central state jurisdictional level, feeding recurrent political violence in Pakistan’s political history. The Munir Commission and the Hamoodur Rehman Commission are particularly important precisely because they try to explore both the roots and the practical sequence of events underlying these challenges. As such, the Reports are pragmatic attempts to consider what is workable, and, by implication, how similar pitfalls may be avoided in the future. Pakistan as a polity continues to see heavy contestation over its constitutive metanorms. WC Smith’s thoughtful observations from his time in early Pakistan suggest a conception of an Islamic state that is dynamic, and embraces rule-diversity and heterogeneity, a depiction that accords with polycentric metanorms. The Munir Report implicitly provides support for a minarchist polycentric metanorm by negating the possibility of the central state jurisdiction acting as a monolith on foundational questions of religion—by revealing the heterogeneous, often contradictory religious understandings in the polity. The Munir Report also reflects on the lack of civic understandings for coexistence between some significant players in Pakistan. This suggests the need for the civic education of the citizenry as a vital component of a successful, viable polity—an important facet of many polities. What follows in the next chapter is a look at some examples of diverse collective choice units, institutions, and developing understandings, with particular emphasis on the inquiry into sources of error and failure. NOTES 1. In 1965, military regime leader Ayub Khan’s effort to locate alternative sources for such funding beyond the United States (such as China or the Soviet Union) can be understood as an effort to multiply resource-providers and bypass any single intransigent funding source, and thereby neutralize its ability to threaten a veto.



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2. The strategic pursuit of political survival assessment might be somewhat undermined by the fact that Khawaja Nazimuddin, in an attempt to divide the movement and defuse the agitation, tried to offer a ministry to one of the parties among the ulama, but they refused (Munir and Kayani, 1954: 282). Alternatively, one might see this as a bargaining posture and as an attempt to build ulama ascendancy in a more long-term fashion by asserting their role as gatekeepers of who counts as Muslim.

Chapter 5

Jurisdictions and Collective Choice Units in Pakistan

Allama Iqbal, the poet-philosopher sometimes credited with inspiring Pakistan’s foundation, believed that autonomous federal states rather than homogenous provinces were needed in India due to its racial, linguistic, and religious diversity (Axmann 2008: 190). To Iqbal, it appears, autonomous areas for distinct communal groups provided an appropriate political structure—a suggestion close in spirit to a polycentric approach in Islamic context. The polycentric approach presumes diversity and heterogeneity among identities, institutions, and collective choice units. In retrospect, it is tempting to dismiss Iqbal’s vision as utopian. But the underlying tensions and challenges that Iqbal was trying to reconcile are real and have repeatedly raised substantial constitutional questions. Moreover, his recognition of the need for diverse governance arrangements to serve diverse populations and subgroups fits with the polycentric design impulse asserted at various times and places Pakistan’s political history. Pakistan’s numerous and diverse collective choice units and their shifts lay bare constitutional design questions about the polycentric metanorm: the who, what, where, when, and how of collective choice institutions. A well-ordered process for permitting, recognizing, and delineating collective choice units, supporting their integrity and autonomy, and embracing institutional diversity would support a well-functioning polycentric order. Such a process depends not only on the deeper cultural endowment and national self-conception, but also on agents, preferences, strategic choices, interactions, and learning, among other factors. Throughout, legitimation tactics of agents draw on the cultural endowment—especially on religious and ethnic identity—and national self-conception. Addressing how these factors relate to potentials for a polycentric metanorm requires awareness of the specific historical context. 199

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The effort in this chapter is to sketch some of the relevant historical context and collective choice units. There have been recognized local governance systems that have come and gone; there are possible ways that prior successful arrangements might be rehabilitated, or that exist in parallel to other arrangements. In various cases, most clearly in those of the absorbed states, Pakistan as a jurisdiction was superimposed on preexisting collective choice arenas. In some ways, Pakistan’s failures today reflect the poor relationship with the preexisting units. Drawing especially on material from Chapter 2, I frame the challenge for these jurisdictions using Skelcher’s references to external integrity (referring to the jurisdiction’s autonomy from outside intervention) and internal integrity (referring to the internal legitimacy of decision-making processes, particularly in terms of accountability to the constituency). The purpose here is not to have comprehensive exploration of all jurisdictions or to provide a definitive account of any specific collective choice arena. Rather, it is to illustrate some of the potentials and challenges for a constitutional process that would support a polycentric order. The particular collective choice units and interactions I examine can be considered a “convenience sample”; others could have also been picked. I contend that their variety and the broad outlines of constitutional-level challenges they represent are valuable for illustrative purposes. They raise issues of how outside interaction and resources shape and reshape self-governance arrangements. Can existing systems be drawn upon as meaningful local governance arenas in the polycentric order? When, where, and how should they be recognized? How is their efficacy be judged—is there an implicit cost-benefit analysis comparing efficiencies of different collective choice mechanisms? How is the process protected from elite capture or other dominance strategies by coalitions and strategic actors? Does the recognition process itself impose costs that undermine those collective choice institutions? This points to broader questions regarding informal collective choice institutions in a weak state. The suggestion by Hooghe and Marks (2003)—and the widespread presumption in traditional institutionalism—has been that Type I jurisdictions are the most stable, durable arrangements, while Type II are more flexible and arise and disappear with demand. What I call Type III are officially unrecognized or exist on the margins as criminal or curious extralegal activities (recognition and some type of license by the central state could potentially change their status to Type I or Type II entities). When the official state jurisdictions, particularly the central state jurisdiction, is low in political capacity, there is likely a de facto polycentricity in place, although not a well-functioning polycentric system. This divergence from the relatively neat Type I and Type II jurisdictional categorizations begs broader questions about the legitimacy of governance arrangements. Does jurisdictional legitimacy emerge from recognition by



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the central state jurisdiction, or any official jurisdiction, or from the internal integrity of a collective choice unit, or some combination? What costs does the recognition process impose on the collective choice institutions—does it make it more costly to transact collective choices, and if so, does that reduce the efficiency of those collective choice arrangements to the point of undermining their appeal? What happens when the existing constitutional arrangements and the central state’s role in particular are contested by other collective choice units? While the below exploration touches on these questions, the major aim of this chapter’s exploration is not a comprehensive answer, but some points and junctures at which issues of self-governance and the interrelation of collective choice units appear in the Pakistani context. These glimpses offer some indication of the ways a polycentric metanorm is manifested and contested. A term from Malik (2011) that I draw upon here is the quasi-state. This refers to an entity that engages in some degree of extraction, welfare, and warfare activity in the manner of a state as envisaged by Charles Tilly (1985). Quasi-states can be “de facto” and “de jure” (see Chapter 1). A key question has to do with the who, when, where, and how of incorporating quasi-states into the constitutionally recognized collective choice arenas; Pakistan’s political history of relations with units sheds some light on this. One benefit of considering the “absorbed states” of Swat, Bahawalpur, and Kalat is to display historical trajectories by which they gained recognition and also lost recognition, and their external integrity as jurisdictions. The previous chapter touched on the relationship between Islamic identity and diverse social identities in Pakistan, and the polycentric metanorm as a mode of accommodating identity diversity. This chapter looks at constitutional arrangements with respect to diverse collective choice arenas, and the challenge of accommodating institutional diversity, particularly in view of the weak political capacity of existing jurisdictions. The starting point is the central government and its relationship to units, particularly the Type I units, which have featured in some of the most dramatic conflicts in the polity. Type II jurisdictions have had notable impact in service provision in Pakistan, and I examine some examples briefly. Finally, among Type III jurisdictions, a major area is the durability of some informal preexisting institutional collective choice forms, as well as the proliferation of new, officially unrecognized collective choice institutions. One consideration is the determinants of sizes and types of jurisdictions, a question that has received attention from various different vantage points. In broad terms, one might describe a literature emphasizing political bargaining and threat relationships shaping and operating within institutional contexts, such as the analysis of “holding-together federalism” (Stepan, 2004) or challenger options in a weak state (Malik, 2011). Another literature emphasizes

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the comparative efficiency of different jurisdictions in delivering services (Ostrom, Tiebout and Warren, 1961), or managing transactions costs (Thiel, 2012). This approach is sometimes associated with functionalism, although that is not a necessary link. Another literature is grounded in materialist presumptions, and has been recently associated with critical geography (e.g., Jessop, 2007). Here, jurisdictions are instrumental reflections of underlying economic relationships. Other possible emphases include ethnicity, trust networks, and political survival pursuits of incumbents and challengers. Ethnicity can be described in various ways: Fearon (2004) emphasizes the dense social networks of ethnic groups as support for coalition formation; Hale (2004) emphasizes the role of ethnicity as an “uncertainty-reduction device”; Horowitz includes religious identity as a basis for ethnicity (Varshney, 2009); Tilly (2005) emphasizes the role of trust networks, which may overlap with ethnic identity groups; each have implications for the quality of public politics. I have eschewed a focus on ethnicity in this chapter because the term is defined specifically in terms of identity rather than collective choice institutions. Yet ethnicity matters, as ethnic identity-bonds can translate to social capital, help solve coordination problems, and facilitate mobilization in order to advocate for other interests. Those interests may reflect considerations of political survival, economic class, security, or less tangible moral interests. At some points, what I refer to as the polycentric impulse arguably arises from factors specified in these literatures. However, I remain uncommitted to one perspective, and instead seek to portray examples of diversity in collective choice arrangements as well as accommodation challenges. The result is selected glimpses from a birds-eye view of the geography and history of collective choice arenas in Pakistan (and the territory predating the creation of Pakistan), although the bird alights at particular points of interest for a closer look. The effort in this chapter is not to evaluate all collective choice arenas and changes therein according to these literatures. Rather, the goal is to illustrate the types of collective choice arenas, as a way to sketch the context, contours, and lineages of the contested polycentric metanorm in Pakistan.

TYPE I JURISDICTIONS IN PAKISTAN Is Pakistan federal? William Riker’s somewhat bare-bones definition is a useful starting point: A constitution is federal if 1) two levels of government rule the same land and people, 2) each level has at least one area of action in which it is autonomous, and 3) there is some guarantee (even though merely a statement in the



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constitution) of the autonomy of each government in its own sphere. (Riker, 1964: 11; cited in Bakke and Webbels, 2006: 4)

If there is a spectrum of possible outcomes in degree of centralization (unitary state, federalism, and partition), Pakistan has experienced formal versions of each. Yet it has not experienced a convincing, full-fledged federalism, by using Riker’s definition of units that have high external integrity as jurisdictions. There have been pressures for a unitary state as well as pressures for partition or breakup. There continue to be struggles over the type and autonomy of Type I institutions. Formally recognized units in Pakistan include provinces, states, and tribal areas. This makes Pakistan closer to an “asymmetric” federalism with a potentially predatory center, which, in an argument made by Solnick (2002), can come about when heterogeneous units have difficulties in bargaining collectively with the center. Elazar lists India, Pakistan, Malaya-Malaysia, and Nigeria as federations that succeeded in surviving decolonization, although he parenthetically refers to Pakistan as being a federation more on paper than in practice (Elazar, 1998e: 27). That impression recurs in the literature; Pakistan is usually depicted as having domestic jurisdictions with low external integrity, meaning that their authority to exercise collective choice is often violated. Pakistani federalism has been defined primarily by the center (Newberg, 1995: 27). East Pakistani politicians were dismissed for agitating for autonomy (Newberg, 1995: 41), and the quest for greater external integrity of jurisdictions has been a persistent constitutional challenge: The definition of provincial borders and members and interests, and their legal and political significance in the polity as a whole, were among the most pressing issues in the independence movement, the partition process, early attempts to frame a constitution and finally, the 1971 civil war. Its legacy spurred military intervention in Baluchistan in the 1970s and still recurs in calls for Pukhtun nationalism and Sind’s provincial battles with the central government. (Newberg, 1995: 63)

The Supreme Court has often been reticent on this issue, affecting Pakistan’s constitutional development (Newberg, 1995: 63). The record of federal orders in developing countries is mixed. In Pakistan’s case, there is ample reason to fear that a breakup or balkanization will follow attempts to devolve authority. An establishment fear is that the country’s marginalized groups have little faith in the central government and its promises, and will likely seize any opportunity to pursue complete independence in the worry that anything less would invite future subjugation. This presents a problem for the development of polycentric order: the concern that a political opening will, given significant distrust between jurisdictions,

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be come come a prelude to severe civil conflict. In terms consonant with the modernization approach articulated by Huntington (1968): if the institutions by which group demands might be channeled are not strong enough, then it is likely that the mobilized groups will push for change (including, possibly, secession) and operate outside the central framework. Another element of Type I jurisdictions is that in their nonintersecting, nonoverlapping character, they represent the Westphalian norm of jurisdiction and exclusivity, or the extension of Westphalian norms into the domestic arena.1 Pakistan’s internal debates about the Concurrent list of subjects on which both Center and Provinces can rule is an example; there is in the rhetoric of those who argue for provincial rights or a confederal system a clear complaint that what should be the exclusive jurisdiction of the provinces has been infringed upon by the center. The fear in the center is that too assertively exclusive rights at the provincial level might make for a shorter leap to shedding any allegiance to the center whatsoever, paving the way to secession. Hooghe and Marks describe the norm for Type I institutions as being between 2 and 5 jurisdictional scales; In Europe this is known as NUTS (Nomenclature des unites territoriales statistiques); the NUTS 1 jurisdiction has a median population of 3.89 million people; the NUTS 2 has a median population of 1.42 million; NUTS 5 is 5100 people (Hooghe and Marks, 2003: 239). In the US, the median population for states is 3.76 million, 69,000 for counties, and 8800 for subcounties (Hooghe and Marks, 2003: 239). Pakistan has a cascading jurisdictional scale too in terms of district and Union councils and thanas, as described in Hamid Khan (2009). Such local organization has been put to different uses by different regimes at the central state level. “Devolution” in the Pakistani context usually means the type and degree of authority that is given to the local level is enhanced relative to other levels, the term is typically denotes a specific choice in a bigger spectrum of possibilities. Devolution has also been deployed as a rhetorical device by Pakistan’s military authoritarian regimes. It appears to promote a measure of local self-governance, while undermining provincial level authority, and potentially increasing the collective action problem of those who might seek a coalition opposing the military center. Type I institutions in Pakistan have been more changeable than the Hooghe-Marks depiction. States have appeared and disappeared, and may be making a reappearance; entire provinces formally merged in the “One Unit” period that amalgamated West Pakistan into a single province; and various devolutionary schemes have reworked the domains of different jurisdictions. In addition, the struggle for external integrity in some jurisdictions (including both states and provinces) is active and ongoing, and the jurisdictions and their boundaries appear negotiable, contested, and fluid. This might be



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described as radical gerrymandering of Type I jurisdictions, a recurrent feature of Pakistani politics. Center-unit Relations Provinces are “Type I” jurisdictions in that they are territorially fixed, general purpose with non-intersecting memberships, relatively stable, and have broad functions (Hooghe and Marks, 2003). Their subservience to the executive power of the central government, and the repeated interventions by the central government, mean that genuine provincial autonomy was lacking. In Skelcher’s (2004) terms, this would be low “external integrity” of the provinces as jurisdictions. Provincial resistance to the center can be described as a struggle for greater external integrity. Dyarchy The colonial legacy and Pakistan’s early years also shaped the relations between the center and units. Imperial India included both “provinces” and “states.” Dyarchy, a step toward devolving authority, albeit an incomplete (or less charitably, flawed) one, was a system from 1921 to 1937 in the provinces in which the political executive in the provinces was responsible to both the local legislature as well as to Britain through the Governor and the GovernorGeneral (Hamid Khan, 2009: 12). Established at the provincial level by the 1919 Montagu-Chelmsford Reforms, dyarchy divided administration into the “reserved subjects,” administered by the Indian Civil Service bureaucracy and responsible to the executive, and the “transferred subjects,” which were managed by political councilors responsible to the legislature (Waseem, 2006: 107). Secretary of State Edwin Montagu set a process in motion in August 1917 by defining a British goal of “increasing association of Indians in every branch of administration, of gradual development of self-governing institutions, and of progressive realization of responsible government in India” (Axmann, 2008: 90). Montagu’s proposals became law in 1921 with the new Government of India Act. It provided for “greatly enhanced legislatures, general constituencies, and individual franchise” (Axmann, 2008: 90). Through devolution, provinces received independent powers, and the “dyarchy” device gave provincial executives responsibility. Whereas before provinces had been subordinate to the center for finance and legislation, there was now a new financial flexibility as well as specific areas of independent control. “Matters of finance, revenue from irrigation, excise, land tax, and stamps were now allotted to the provinces while matters relating to customs, income tax, posts, salt, and railway went to the centre” (Axmann, 2008: 90). This applied to the administrative structure. Legislative powers in some areas were devolved to

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the provinces, while others related to India as a whole (such as defense, foreign affairs, communications, commerce, and customs) were retained by the center (Axmann, 2008: 91). Dyarchy meant that provincial administrations were divided into a half controlled by counselors responsible to the Governor and another half controlled by ministers responsible to provincial councils, with administrative subjects divided into “reserved” and “transferred”: Reserved subjects such as land revenue, laws, justice, police, irrigation, and labour matters were directly controlled by the governor and his counselors. Transferred subjects such as local self-government, education, public health, public works, and agriculture were controlled by responsible ministers. (Axmann, 2008: 91)

A bicameral legislature was introduced in the center, backed by new electoral systems of individual franchise and constituencies. General constituencies were open to individual franchise, whereas special constituencies represented interests such as “universities, great landholders, industry, and commerce” (Axmann, 2008: 91). General constituencies were also divided communally: Lord Minto had accepted this in 1906, when a Muslim delegation asked that Muslim interests be represented through special constituencies (Axmann, 2008: 91–92). Dyarchy was further transformed by the Government of India Act 1935, and came to be known as vice-regalism: The 1935 India Act provided responsible government at the provincial level but reserved veto power for the governor. It also provided for the principle of dyarchy for the ruling dispensation at the centre, a principle that was operationalized rather late in the form of “interim government” (1946–7). In the immediate post-independence years, the extra-parliamentary office of Governor General Jinnah made it a matter of routine to initiate information, guide policy as well as take political and administrative decisions largely bypassing the parliament. This pattern of authority has been described as the “viceregal system.” (Waseem, 2006: 107)

Under the Government of India Act 1935, Muslims had sought more provincial autonomy, believing that they would capture power in provinces with preponderant Muslim populations. Hindus demanded greater power for the central Indian legislature, presumably because their majority in India overall would position them for greater authority over the entire region (although the Indian Congress’ claim was that it was a secular party not attached to a particular communal identity). Consequently, the Government of India Act 1935 contained three subject lists (federal, provincial, and concurrent) and empowered the Governor-General to allocate to the central or provincial



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authority the right to legislate on subjects with concurrent jurisdiction (Hamid Khan, 2009: 75). The three-list method was incorporated into the Constituent Assembly’s final draft in 1954. The 1935 Government of India Act gave India partial self-rule while retaining British parliamentary supremacy partly through emergency powers. Provincial autonomy was used by the Muslim League as a way to enhance its position in the independence movement (Newberg, 1995: 17). By March 1940, when the Muslim League met in Lahore, its demands for provincial sovereignty and weak central government were “in direct opposition” to the 1935 Government of India Act (Newberg, 1995: 17). The Lahore Resolution “remains a rallying cry for provincialists opposed to centralized versions of the federation in Pakistan today” (Newberg, 1995: 18). Yet Pakistani constitutions have generally followed the 1935 Act in the provincial relationship with the center. The Independence of India Act allowed the GovernorGeneral to declare an emergency anywhere in the country (Section 93), and to place a province under Governor’s Rule (Section 92-A); nine provincial governments in Pakistan were dismissed in the first 11 years after independence (Waseem, 2006: 108). Pakistan was “an amalgam of territories structured and governed differently and rarely with relation to the others” (Newberg, 1995: 18). Importantly, the meaning of the accession to Pakistan is still contested by some today (Newberg, 1995: 18). To Sardar Mumtaz Ali Bhutto, a Pakistani politician who emphasizes provincial autonomy, the promise of Pakistan was a confederal system, differing from the more center-dominated India that seemed ready to emerge, but the promise was betrayed (Sardar Mumtaz Ali Bhutto, 2009; cited in Malik, 2011: 131). Ironically it may be that external integrity of jurisdictions has been more robust in India than in Pakistan, although there have been notable Indian incursions on the external integrity of units too. In terms of the internal integrity of collective choice at the center as well as the provinces, feudal relationships were unchanged and even “assured by the manner of political representation”; where “the landed gentry were spokesmen for province and nation, economic change would be limited” (Newberg, 1995: 19). As Newberg puts it, [land] reform barely reached Pakistan, and each attempt to foster changes in distribution and taxation has been met with unceasing protest from those who hold political power. Without a more equitable distribution of resources, the material basis of representation was unlikely to change. (Newberg, 1995: 19)

The Lahore Resolution provided significant political weight to the provincial landed elite (Newberg, 1995: 19). This has provided a rationale

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for autonomy-pursuing provincial political leaders with ethnonationalist constituencies. Dyarchy characterized both Pakistan and India, but there was an important difference in that Pakistan had a 20 percent migrant population, whereas India had one percent (Waseem, 2006). Migrants had led the Pakistan movement and enjoyed state legitimacy because they were early converts to it, as compared to the Muslim-majority provinces. Refugees to India came from areas peripheral to the British Indian domain, while refugees to Pakistan came from the imperial center. Migrants dominated the state in other ways, early on: “The migratory elite provided the new state with its governor-general and prime minister, leadership of the ruling party Muslim League, two-thirds of higher bureaucracy as well as three-fourths of the emergent bourgeoisie” (Waseem, 2006: 104). Hamza Alavi termed this the “salariat” that supported the Pakistan movement to escape its “potentially underprivileged position vis-a-vis its better-educated Hindu counterpart” (Waseem, 2006: 107).2 The Mohajirs formed the core of the middle class; this expanded to include Punjabis and some Pathans; lacking an “electoral constituency of its own, it distrusted the process of elections because these were destined to bring the tribal and landed elites into power” (Waseem, 2006: 106). The center was dominated by migrants, and had an “all-Pakistan” outlook that centered on the Indian security threat and showed “complete antipathy to sub-national identities” (Waseem, 2006: 108). Hassan notes that in a federal state, consent of the government comes from the people (in their acquiescence to the federal system) and from the federating units to the federal government. Yet the military has repeatedly intervened against constitutional governments, while the Supreme Court has validated these acts on the basis of public necessity (Hassan, 2006: 276). Every time military rule takes place, provincial autonomy and the federation disappear (Hassan, 2006: 277). The struggles for legislative and provincial autonomy tend to go hand in hand. Under Musharraf’s National Security Council, military and civilian leaders oversaw major policies. Military rulers alone do not bear the full blame: “throughout its history the federal principle has been at the mercy of the autocratic tendencies of its civilian rulers as well as those of military origin” (Hassan, 2006: 277). To G.W. Choudhury, the greatest complication or difficulty Pakistan faced in framing its constitution both before and after 1971 was the relationship between the central government and the federating units (Choudhury, 1974: 16). Choudhury blames “the failure of Pakistan to provide a constitution wherein the people of the two geographically separated parts […] could live together as equal partners in a federal or even a confederal arrangement” (Choudhury, 1974: 10). Punjabis made up over 60 percent of the post-1971 ­Pakistan of 60 million people, and Punjab remained the most developed.



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There was fear of Punjabi domination, particularly among Pathans and Balochis (Choudhury, 1974: 16). Others have suggested Sindh as a likely locus of future separatism after East Pakistan’s secession. The Hamoodur Rehman Commission Report points to a key problem in “federalism” in Pakistan. Rather than the ideal-type picture of the sovereign, independent units that come together for a federal compact, Pakistan emerged in a context which had been largely unitary. As such, Pakistan cannot be described as a straightforward case of what Stepan terms “coming-together federalism” (Stepan, 2004), a notion best identified with William Riker’s notion of independent units that come together and bargain to form a united polity. Rather, federalist impulses in Pakistan may be closer to the Stepan’s (2004) “holding-together” depiction, in which the center willingly cedes some powers to the units, in order to prevent destabilizing autonomist (in extreme cases, secessionist) agitation. The first proposal of federation came in 1935, but the federating units had been under unitary government for nearly a century. Choudhury suggests that a federal form for Pakistan’s government was not controversial because no other system was practicable when the country’s territory was split by such a massive distance (Choudhury, 1955: 596). Administrative pragmatism required a federation. A local legislature was better suited to govern a territory as compared to a distant one at the center. Moreover, provincial autonomy under the Government of India Act 1935 had generated a strong provincial spirit (Choudhury, 1955: 596). The Government of India Act of 1935 and the India Independence Act of 1947, however, were not produced “wholly with the consent” of the people of the subcontinent, but rather from within the British legislature (Hamoodur Rehman Commission, Ch. 7, section 33, p. 75). Possibly as a consequence, there was later suspicion that a “federal constitution” would disadvantage one side over the others; one unit had over half the country’s population, and the other four units combined covered a larger area and diverse other groups. This suggests an acute sensitivity to the problem faced by ethnofederations in which a large disenfranchised group concentrates in one unit—secession and breakup are more likely when a core ethnic region exists than in situations where ethnic groups are dispersed (Hale, 2004). Importantly, the draft envisioned a “strong centre” because the framers “recognized that a weak centre would bring disaster to the country and that while it need not be all-embracing, the centre must be sufficiently strong and effective to guide and control the provinces” (Hamid Khan, 2009: 94). Hamid Khan asserts that this principle also guided the first Constituent Assembly; however, under the new draft, the “provincial list” (subjects on which provinces had jurisdiction) was larger, and “residuary powers” were to be vested with the provinces (Hamid Khan, 2009: 94). This meant that provincial legislatures

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had the exclusive jurisdiction over any matter not enumerated in the federal, provincial, or concurrent lists (Hamid Khan, 2009: 104). Hamid Khan describes the principle for both Constituent Assemblies as: “maximum autonomy should be granted to the provinces but this should be consistent with national integrity and solidarity” (Hamid Khan, 2009: 94). Given latitude for interpretation, the term “solidarity” can provide rhetorical cover for a rather heavy-handed center. The other considerations that supported a strong center had to do with external security and economic development. Social welfare and employment expectations, combined with the needs for modern war preparation, mean that the central government must have the ability to legislate over economic and fiscal matters. In a complex modern society, the federal system could hardly be expected to work satisfactorily and smoothly without the process of centralization. Yet, the architects of the 1956 Constitution provided maximum room for decentralization in view of the number of powerful factors, political, economic, psychological, working towards demands for regional autonomy. Unless the demands were reasonably satisfied, the movement for secession which subversive elements were trying to create, might have been encouraged. On the other hand, the risk was that the decentralized structure of a weak federation might afford footholds for foreign intrigue and attack. (Hamid Khan, 2009: 103)

The worry about “footholds for foreign intrigue and attack” remains a key concern in the minarchist polycentric approach; this may be summarized as the risk of tempting an external predator by displaying apparent weakness (Malik, 2012). Exacerbating the possibility of external intrigue is the proclivity of some aspiring political leaders to gain support from narrow subnational identities. According to Hamid Khan, some politicians “fanned provincial feelings and prejudices to promote their narrow political interests” (Hamid Khan, 2009: 92). Ethnic identity mobilization, in other words, became a basis for political ascendancy. The 1956 Constitution’s “directive principles” for state policy included steps to enable Muslims to order their lives in accordance with the Quran and sunna, prohibiting drinking, gambling, and prostitution, while requiring the compulsory teaching of the Quran and the “proper organization” of mosques (Hamid Khan, 2009: 100). Food, shelter, clothing, education, and health care were to be provided to those incapable of providing for themselves, through sickness, unemployment, or other reasons. The framers felt an urgent need to develop the society, as exemplified by the injunctions to reduce illiteracy. The 1956 Constitution also specified an adjudication mechanism in case of a dispute between the Center and Provinces, and between two provinces. The



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chief justice of Pakistan was to appoint a tribunal in case such a dispute arose; the tribunal’s report would then go to the president, who would give effect to it with appropriate orders; those orders would then be made effective by the provinces (Hamid Khan, 2009: 104). The president was to also set up an interprovincial council for discussion of subjects of common interest between the federation and one or both provinces (keeping in mind that this was after One Unit was declared) (Hamid Khan, 2009: 104). Hamid Khan suggests that India’s federal constitution tended toward centralization of authority and administration; in contrast to India and other new federal constitutions, Pakistan’s 1956 Constitution was unusually decentralized (Hamid Khan, 2009: 103). Most of the 1956 Constitution’s references to federalism are what Hooghe and Marks (2003) would term Type I federalism. The president had the authority to delegate executive responsibility to provincial machinery (because the central government did not have enough officers). This may have provided a way to use provincial bureaucracy as a subsidiary unit to the center. Emergency Powers Significantly, the federal government had the power to proclaim an emergency. Article 191 allowed the president to proclaim an emergency if he was satisfied that the security or economic life of Pakistan was threatened by war, or by internal disturbance beyond the provincial government’s power to control (Hamid Khan, 2009: 110). During such a period, the central legislature had the authority to make laws for a province on any subject not enumerated in the federal or concurrent lists (i.e., on any subject) (Hamid Khan, 2009: 104–105); the federal executive could direct a province in matters relating to how the provincial executive exercised authority; and also the president might himself assume all powers of provincial government, or entrust all these powers to the province’s Governor, except the provincial legislature and judiciary, and could further suspend any constitutional provision in the province except the High Court (Hamid Khan, 2009: 111). The emergency powers in Article 191 were a far-reaching list. Some assembly members protested emergency powers, particularly against those made in case of “internal disturbance” and financial emergency, due to the vagueness of these phrases. They proposed an amendment removing the references to “economic life of Pakistan” and to internal disturbance, and restricting emergency powers to times of external aggression or war. Pakistan had repeatedly seen emergency proclamations without sufficient cause, in their view; they worried that legitimate opposition to a governmental measure might be construed as an “internal disturbance,” and that “[a]nything might be considered as endangering to the economic life of Pakistan” (quoted in

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Hamid Khan, 2009: 110). The emphasis on financial emergency and financial credit reflects the pressing need Pakistan’s state managers felt for locating resources of rule: they needed to secure funds for running the country. There were other executive powers: under Article 193 of the 1956 Constitution, if a provincial Governor declared a situation in which the provincial government could not act according to the constitution, the president could assume any powers of the provincial government (except for legislature and judiciary), could authorize the National Assembly to act in place of the provincial legislature, and could also spend from the provincial fund, anticipating approval from the National Assembly (Hamid Khan, 2009: 111). In effect, this suspended parliamentary government in a province during an emergency, similar to section 92A of the interim constitution. Proponents of provincial autonomy objected strenuously, declaring their “bitter experience” with repeated misuse of this provision, as it could be used as a political weapon against provincial governments if they differed from the center (Hamid Khan, 2009: 111). Such powers for the central government caused friction later on, when emergencies were declared (e.g., under ZA Bhutto). Reductions in Autonomy Several formal constitutional shifts in Pakistan served to reduce the autonomy of provinces. The 1935 Government of India Act referred to the word “federal” in several instances, yet the governmental form was in reality unitary with some local administrative power. The Act categorized subjects on which legislation could be passed into a Federal list, Provincial list, and Concurrent list. In the Concurrent list, the provinces had to defer to the center (Hassan, 2006: 242). At independence, this became Pakistan’s working constitution. It gave the federation 96 items of powers; the provinces had 90, of which 36 were on the Concurrent list (Hassan, 2006: 242). The 1956 Constitution reduced federal items to 49. The formal 1956 Constitution would appear to be unusually decentralized compared to later developments. While the 1962 Constitution retained the lists in an ostensibly federal structure, it nevertheless allowed the federal legislature to “assume further powers with respect to other matters in the ‘national interest of Pakistan.’” (Hassan, 2006: 273). In effect, this rendered provincial autonomy meaningless. In 1973, the federation list grew to include 114 items (Hassan, 2006: 274). The 1973 Constitution increased the areas of federal legislation while reducing the ones for exclusively provincial legislation. Various “belabored devices” were used to expand federal power in ways that exceeded the original vision of the polity, primarily to benefit “incumbent authoritarian rulers” (Hassan, 2006: 274). Federalism was undermined by what was politically



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expedient for incumbent leaders in Pakistan, and by the lack of “public institutions of genuine integrity” (Hassan, 2006: 278). According to Hassan (2006), the fiscal autonomy of the provinces has been denied by an overreaching central government and by the failure of formal constitutional mechanisms. The Council of Common Interests and the National Economic Council were constitutional mechanisms for managing policy goals and economic interests of the four provinces, but these functions have been unmet. The Council of Common Interests was a dispute resolution mechanism among the provinces, but this has not generally been functional in practice. These councils do not meet when necessary and smaller provinces have been critical of the distribution formulas (Hassan, 2006: 275). The 2010 passage of the 18th Amendment Bill suggests a newly invigorated Council of Common Interests, although its effectiveness in changing governance patterns will take more time to ascertain. In Hassan’s estimation, the federating units have been deprived of up to 25 billion rupees annually by the central government (Hassan, 2006: 275). The National Finance Commission award helps shape the provincial budgets, because they would logically need to shape their own taxes accordingly. In 2005–2006, the award was not announced with the federal budget, which placed provinces in a difficult position: they had to seek their shares on an ad hoc basis (Hassan, 2006: 274). Such a situation undermines administrative autonomy significantly, as effective planning becomes difficult, and the increasing need to rely on the center reduces the room for manoeuver enjoyed by provincial authorities. The center wields a resource stick over the provinces. Depriving the provinces of their “fiscal revenues and dues” results from “aggressive designs of the Federal government” and undermines the federation (Hassan, 2006: 275). The East-West split Conflict arose over the degree of provincial autonomy, comparable in some ways to the problem facing the framers of the American constitution (Choudhury, 1955: 596). East Pakistan feared domination and demanded the greatest provincial autonomy. Non-Muslim minorities strongly supported provincial autonomy. A conference in Dacca in November 1950 declared that the center should only control three subjects: defense, foreign affairs, and currency. Pakistan needed to be federal for geographical and historical reasons, in Hamid Khan’s view. Mistrust and a lack of understanding between East and West Pakistan exacerbated the problem. The demand for maximum provincial autonomy came first from East Pakistan, whose people felt that the central government had neglected them and not granted them a “reasonable, fair, and adequate share in the central government and administration […] an

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increase in the power of the centre would mean a corresponding decrease in their power and influence” (Hamid Khan, 2009: 75). The Constituent Assembly supported a strong center, fearing that provincialism could disintegrate the country. The demand for “decentralization” takes on a straightforward meaning in this context; it means more autonomy for the provinces and less for the central government. Arriving at a satisfactory federal formula to manage the East-West split was difficult. The two sides had differences in language and population: Urdu was treated by some elites as the main language in West Pakistan, while Bengali was spoken in East Pakistan; East Pakistan contained the majority of the country’s population and also had a substantial non-Muslim minority. Moreover, West Pakistan contained the greater part of the country’s territory. A further dramatic difference from other units was that East Pakistan was over 1000 miles away from West Pakistan, and therefore harder to control from the center. These factors rendering the country vulnerable to disintegration in the way of ethnofederations with large ethnic groups concentrated in one unit (Hale, 2004). Numerous formulas for provincial representation in the center were suggested in the Constituent Assembly’s deliberations on the draft constitution. A key theme was the Punjabi fear of ceding too much power to the more populous East Bengal. In constitutional debates in the Constituent Assembly, East Pakistanis urged that “residuary powers” rest with the units, with only defense, foreign affairs, and currency in the hands of the center (Calder, 1956: 255). The chief minister of Punjab also moved that more power should be vested in the provinces. Divides within the Muslim League were apparent in the question of how provinces should obtain greater autonomy (Calder, 1956: 255). This tug and pull between the most populous provinces in an ethnofederation was unsurprising from Hale’s perspective (Hale, 2008, 2001); given their ethnic concentration and the fact the East Pakistan was the “core ethnic region,” the strain on the federation’s coherence was palpable. The failure to accommodate the core ethnic region, combined with the logistical challenges to security posed by the geographic distance, were underlying conditions behind the country’s breakup. The conflict’s origins can also be described in materialist terms. The interests of jute exporters in East Pakistan diverged from West Pakistani interests with regard to currency exchange rates. Competing economic classes whose interests were differentially affected by the valuation or devaluation of the rupee arguably propelled the jurisdictional conflict over autonomy. Unit Representation in the Center The Constituent Assembly proposed constitutional structures in 1950 and 1952. The 1950 proposal envisaged a bicameral legislature. East Pakistanis protested that the provision for equal representation for each province in the



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“House of Units” may lead to the East Pakistanis becoming a minority in the legislature (given that there were several provinces in West Pakistan). The 1952 proposal suggested a bicameral legislature in which there were 120 seats in the upper house (60 each for West and East Pakistan) and 400 seats in the House of the People, half to be elected from West Pakistan and half from East Pakistan (Choudhury, 1955: 593). Parity was thus built in to the federal formula despite the numerical majority in the East. This time, protest arose from West Pakistan, particularly from Punjab province. The protestors argued that each unit should have equal representation in the upper house, as was the case in the American Senate. At the time the Constituent Assembly’s Basic Principles Committee offered its report, in 1952, West Pakistan’s House of Units seats were to be allocated by single transferable vote from the respective legislatures of Punjab, Sindh, North-West Frontier, Tribal areas, Bahawalpur, Balochistan, Balochistan States, Khairpur, and Capital of Federation (Hamid Khan, 2009: 69). A compromise formula for the federal legislature was suggested by Muhammad Ali Bogra, who had been appointed as Prime Minister after Prime Minister Nazimuddin’s dismissal (see Hamid Khan, 2009: 73). The formula gives seats to “units” which are more than one province or state, and they were: A. East Bengal; B. Punjab; C. NWFP (including Frontier States and Tribal Area); D. Sindh and Khairpur; and E. Balochistan including Balochistan States Union, Capital of Federation (Karachi), and the state of Bahawalpur (Hamid Khan, 2009: 73). The C, D, and E groupings served to organize diverse jurisdictions into a scheme for representation at the center. The full details represent an effort to both recognize and balance the strength of the largest units (especially A, but also B), while nevertheless giving some representation to the smaller units (C, D, and E). The lower body of a proposed bicameral legislature also gave individual representation to the states and jurisdictions that made up C, D, and E. Choudhury asserts that “national unity” was threatened by the inability to identify a constitutional formula for representation at the center acceptable in both East and West Pakistan (Choudhury, 1955: 594). PM Mohammed Ali’s formula sought to make the two sides interdependent. It gave a majority in the lower house to the East Pakistanis, and a majority in the Upper House to the West Pakistanis, while granting equal powers to both houses and equal representation in total numbers. The Constituent Assembly was “guided by the need for a strong national government” (Choudhury, 1955: 599). Opposition to a strong federal government arose; Choudhury believed that Muslim solidarity was lacking, and this worsened as the Muslim League, a previously unifying party, fell into decline. Provincial elections in East Bengal (held in March, 1954) resulted in

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Table 5.1  Proposed Representation Formula The formula worked as follows: (1) The upper house was to consist of 50 members distributed geographically. As West Pakistan has a preponderance of the country’s territory, it was given a clear majority in the House of the Units. (2) The lower house was to consist of 300 members, the majority to come from East Pakistan since it has the absolute majority of the country’s population. (3) The distribution of seats was made in such a way as to ensure parity between the two zones in the joint session of the houses: East Pakistan West Pakistan

Upper House 10 40

Lower House 135 135

Joint Session 175 175

A further innovation was that both houses were given equal powers and in case of conflict, a joint session must be called. Still a further safety valve was provided in that no bill could pass a joint session if the majority supporting it did not include at least 30 percent of the total members from each zone. Thus it was sought to make the two zones interdependent. Important measures like a vote of confidence in the cabinet or the election of the head of the state were to be decided only in joint sessions (Choudhury, 1955: 594–595).

a victory for parties that had allied in opposition to the Muslim League. Their demands, called the Six Points, included: 1. Recognition of Bengali as an official language at par with Urdu. 2. Rejection of the draft Constitution and dissolution of the Constituent Assembly, and its replacement by a directly elected body. 3. Complete autonomy of East Pakistan in all matters except defense, foreign policy, and currency, which would be reserved for the central legislature. 4. Complete freedom from the center with regard to export of jute. 5. Consultation between the center and East Pakistan on the allocation of foreign exchange for imports. 6. Abolition of the Indo-Pakistani passport and visa system and of existing restrictions on trade between East and West Bengal. Devaluation of the Pakistani rupee (Hamid Khan, 2009: 77). These proposals would limit the center to minimal functions, and envision Pakistan as a confederation. There was a political economy of coalitions around currency value; exporters preferred to devalue while importers did not, and East Pakistan jute exporters were particularly concerned about the loss of trade from a strong Pakistani rupee. These political differences on the powers of jurisdictions would not be satisfactorily resolved.



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One Unit In one effort to establish parity between East Pakistan and the rest of the country, West Pakistani leaders argued that West Pakistan should become one unit, and that more power should reside with the units (West and East Pakistan). The Governor-General dissolved the Constituent Assembly before it could decide on these questions (Choudhury, 1955: 599). Through a bill passed by the second Constituent Assembly in September 1955, the merger of West Pakistan into “One Unit” represented a significant shift in jurisdiction and representation, and remained a sore point and a grievance for smaller area politicians for some time. Introduced by the Pakistani Governor-General (the chief executive position at the central level), “One Unit” was designed to balance East Bengal; Sind, Punjab, and NWFP were merged, and in the process, Bahawalpur, Khairpur, and the Baluchistan States Union lost their autonomy, while only the small frontier states of Chitral, Dir, and Swat were exempted (Newberg, 1995: 52). Other plans had suggested zonal federations retaining existing provincial structures. The One Unit structure gave the Governor-General “extensive powers in the new constitutions that he planned to promulgate by ordinance”; he “disposed of chief ministers who objected to its promulgation, imprisoned politicians who spoke against it and generally outlawed political organizing” (Newberg, 1995: 52). Former chief minister of Sind, Ayub Khuhro, had been barred from politics under PRODA; he supported the One Unit plan in exchange for being returned to office as chief minister, and replacing the sitting Chief Minister Pirzada, who opposed One Unit. Punjab’s chief minister Feroz Khan Noon was pressured by the Governor-General to accept One Unit. The Governor-General also made changes in NWFP in order to obtain approval for One Unit (Newberg 1995: 152). Thus, a powerful executive overrode opposition and merged the provinces. The new province, known as “West Pakistan” incorporated three Governors’ provinces, one Chief Commissioner’s province, some states which had acceded to Pakistan, and the tribal areas (Hamid Khan, 2009: 92). The purpose was ostensibly to simplify the federal structure of the proposed new Constitution, overcoming the problem of representing the diverse and numerous smaller units (Hamid Khan, 2009: 92). The states of Khairpur and Bahawalpur gave over administration to the central government; Bahawalpur’s state ministry was dismissed for “maladministration” by its Amir, and its state legislature was dissolved (Hamid Khan, 2009: 92). The One Unit scheme would be abolished by Ayub Khan’s successor Yahya Khan, but not all preexisting units were restored. (This has set the stage for a political question decades later about whether the states dismantled under the One Unit scheme can come back.)

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The above suggests that the paths to monocentricity and polycentricity both depend substantially on the political survival interests of the parties involved in ongoing political bargaining. Challengers are likely to support whatever serves their political survival prospects. Collective constitutional choice may be partly traceable to strategic political survival interests of the various parties who have voice in the constitutional bargaining process. Local leaders might support either a more unitary state or a more federal one, depending on their political survival calculations. One cannot presume that local leaders will always advocate for greater autonomy. 1962 Constitution: Presidentialism in a Unitary State Ayub appointed a Constitution Commission, which looked at several aspects of the country’s previous experience, including the parliamentary form (the commission felt that this had failed, due to a lack of proper election procedure, interference by the head of state in ministries and parties, interference by the central government in the provinces, lack of well-organized, disciplined parties, and the poor character of politicians) and proposed instead a presidential. It also considered the unitary versus federal question. Ayub’s appointed Constitution Commission recommended a “genuinely presidential” system; he then appointed a Cabinet Committee to produce a final version. Choudhury claims that ZA Bhutto (later to found the Pakistan Peoples Party) was one of the key figures that helped to insert the antidemocratic provisions in the 1962 Constitution under Ayub (Choudhury, 1974: 14). If accurate, this makes ZA Bhutto appear an ambitious, pragmatic figure pursuing political survival rather than an unwaveringly idealistic procedural democrat. The 1962 Constitution did not recognize political parties. In effect, autocratic provisions undermined democratic representation. In 1959, Ayub Khan issued a Martial Law Ordinance that allowed the seizure of any newspaper deemed subversive (dangerous to defense or security); the Pakistan Times and Imroze were subsequently taken over (these were the largest English and Urdu dailies) (Noman, 1990: 29). A 1963 Press Ordinance banned publication of news related to strikes and industrial unrest. A later ordinance in the same year required newspapers to print press releases from central and provincial governments. The National Press Trust, financed by 24 industrialists, was instituted to monitor dissent (Noman, 1990: 29). The administration increased control over the judiciary through law reforms that allowed government officials opportunities to scrutinize judicial appointees (Noman, 1990: 29). All the universities were state-owned, stunting the potential for an academic intelligentsia with critical distance from the political center. Combined with the press controls, these moves represented a



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movement away from transparency and accountability, and reduced judiciary independence. Basic Democracies: Decentralization as an Authoritarian Figleaf Ayub Khan’s Basic Democracies order was, in theory, somewhat decentralized. The system was to work from the ground up, and to rid the country of party intrigues. Its key administrative unit was the Union Council, which covered a total population of ten to fifteen thousand people, often a group of villages (Hamid Khan, 2009: 126). The Union Council’s functions included promotion and development of the co-operative movement, village industries, forests, livestock, and fisheries; adoption of measures for increasing food production, the provision and maintenance of wells, water-pumps, tanks, and other works for the supply of water; the provision and maintenance of public streets; relief for widows, orphans, the poor and those in distress; the provision of firstaid centres and of libraries and reading rooms; aid in the promotion of education, and many other social and economic activities. (Hamid Khan, 2009: 126)

One suggested basis for good governance is local government that is responsive to local needs and feedback. Yet the centralized civil bureaucracy retained substantial control, undermining the possible benefits of local government. Each Union Council was represented by one member elected by adult franchise. These later became an electoral college for the president and the Provincial and National Assemblies. Upper tiers of the system (thana in East Pakistan; tehsil (Subdivision) council in West Pakistan); District Council for rural areas, Municipal Committee for a city; Divisional Council for a civil division; and two Provincial Development Advisory Councils for East and West Pakistan, respectively (Hamid Khan, 2009: 126). One presumption was that the Basic Democrats would provide opportunities for local governance and institutional learning, eventually paving the way for full democracy. Some Americans who found this notion credible lauded Ayub Khan. The Hamoodur Rehman Commission viewed self-government at the lowest level as a “retrograde step” in East Pakistan because that area “had already passed through this process of evolution in the times of the British starting with the Village Chokidari Act of 1870 and the Local Selfgovernment Act of 1885” (Chapter 4, Section 14, Hamoodur Rehman Commission (p. 44)). This criticism can be understood not necessarily as a critique of local self-governance per se, but as an awareness that the creation of Basic Democrats was a strategic maneuver to enhance the dominance of the central jurisdiction at the expense of provincial elites. East Pakistan, in addition to holding the grievance that they were disenfranchised or disadvantaged with respect to West Pakistan, also had a relatively well-established history of

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collective mobilization and provincial governance, which may have better positioned East Pakistan to advance its self-interests against the central state jurisdiction. The Hamoodur Rehman Commission noted the belief that corruption increased significantly under the Ayub regime, particularly through the Basic Democracy, with the tacit or active assistance of the central government: The government itself, it was further alleged connived at, if not, actually encouraged their corruption for they formed the Electoral College for the election of the President himself. They openly sold their votes to the highest bidder. (Hamoodur Rehman Commission, Chapter 5, Section 17, p. 49)

The Basic Democrats scheme may have encouraged corruption. This is likely because the real constituency of the Basic Democrats (where they got their resources of rule) was in the center; as long as they pleased the center, they would receive privileges. This did not promote the good governance that would likely have come about if the Basic Democrats had been forced to obtain resources locally and been held accountable. Such fiscal decentralization would potentially have encouraged a local level taxation for representation bargain under the fiscal equivalence principle discussed below. Jurisdictional redrawing—or gerrymandering for political advantage—has been a repeat feature in Pakistani politics. This includes the transition to One Unit, which turned West Pakistan into a single province, and the “devolution” schemes that different autocrats have used. These schemes are a way to prevent a popular national-level movement from emerging that might challenge the dictator’s authority, partly by taking power away from the provinces, partly by giving and withholding federal funds to specific areas, and partly by tactics such as those used by Ayub Khan’s legal adviser, Manzoor Qadir, who sought to prevent the Basic Democrats from meeting as a group in order to minimize the possibility of a collective opposition movement. Decentralization under these conditions undermines popular collective action against the executive, and so, instead of serving as a means by which polycentricity is promoted, became the means for furthering the political survival of a dictator appropriating maximal authority. From a logic of collective action perspective (Olson, 1965), the greatly increased number of units under the devolution scheme reduced the probability of collective oppositional action against the center, all other things being equal. A common and skeptical verdict on the Basic Democracies is that Ayub Khan needed legitimacy, without “universal suffrage, a national mandate, or contentious elections” (Hamid Khan, 2009: 127). The Basic Democrats were used as a referendum to give Ayub a mandate for office as well as authority to frame a new constitution, but to avoid even the limited risks



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the electoral college posed, their members were not able to gather in large numbers (Hamid Khan, 2009: 127). The question they voted on by secret ballot was: “Have you confidence in President Field Marshal Muhammad Ayub Khan, Hilal-i-Jurat?” This loaded question (which appears restrained in comparison the wording Zia-ul-Haq would later use in a referendum) seems worded to make it difficult to reject and almost predetermines the result. Noman notes that Ayub Khan’s Basic Democracies system saw civil servants tasked with appointing the Basic Democrats based on “personal merit” (Noman, 1990: 28). The “steel frame” (the key institutions of state) determined the institutions of government, and influenced them down to the local level. To Noman, the Basic Democracy system provided a safe electoral college for Ayub Khan; a second function was developing “a direct relationship between the bureaucracy and the rural elite, thus cultivating a network of allies for the government, based on access to the state’s resources” (Noman, 1990: 27–28). Civil servants enjoyed routine decision-making powers in a manner similar to colonial rule, when the Viceroy relied on the Imperial Civil Service. The Six Points, Civil War, and Breakup That the defense of East Pakistan goes through West Pakistan was a proclaimed military strategy that appeared to have been falsified by the 1965 war. It appeared that West Pakistan was unable to defend East Pakistan from external attack. One route by which a political order might be undermined is if the central state apparatus cannot fulfill one of its key functions. This seriously undermines the claim to legitimacy of the central state authority. The Hamoodur Rehman Commission notes that during the 1965 war East Pakistan found itself completely isolated from the West and at the mercy of India with only one division of troops and two air squadrons to defend her. The theory of the defence of the East lying in the West was thoroughly exploded and had not China declared India an “outright aggressor” and called upon her to dismantle her military installations on the Sikkim border, it is believed, that India would have attacked East Pakistan too. (Hamoodur Rehman Commission, Chapter 5, Section 9, p. 47)

East Pakistani loyalty to the state of Pakistan remained unquestioned during the 1965 war, according to the Hamoodur Rehman Commission, but the “sense of frustration, however, deepened after the war with the realization that in a crisis the West would not be able to come to its rescue and East Pakistan would be left to fend for itself” (Hamoodur Rehman Commission,

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Chapter 5, Section 10, p. 48). In other words, a learning moment took place. The central state’s authority rests on some practical factors (e.g., being able to provide protection) as well as in the mental imagination of the subjects. In this context, the Six Points demand was made public. The Hamoodur Rehman Commission notes widespread questions, somewhat demeaning in tone, over whether Mujibur Rehman did or could have come up with the Six Points program on his own, and includes a claim that a civil servant, or a group of civil servants from East Pakistan, may have been the actual author (Hamoodur Rehman Commission, Chapter 5, Section 13, p. 48) The Commission’s main point is that the Six Points declaration was prepared before the February 1966 opposition convention in Lahore. One interpretation is that a carefully deliberated strategy was underway, perhaps using the extreme demand for East Pakistan’s autonomy as a way to divide the opposition and thus undermine the pro-democracy movement against Ayub’s regime. Political survival calculations in the Ayub regime may have produced maneuvers that amplified demands for East Pakistan’s autonomy. The Hamoodur Rehman Commission makes numerous historical references suggesting that the Six Points were not a fixed ideological commitment, but bargaining points on which Mujibur Rehman was willing to negotiate. Better handling of the situation might have prevented the violent breakup of the country that followed. Even as bargaining chips, secessionist postures may spur disintegration, as described in Chapter 2. Secessionist posturing lends itself to the same problem one sees in brinkmanship, threats and bluffs. If one’s bluff is called, one has to reveal one’s hand. If one keeps the nuclear attack option on the table in a balance of threats, even without intending to actually ever use nuclear weapons, one might sometime be obligated to follow through on the threat. Otherwise, credibility would be lost. In the same way, a leader who advocates a secessionist position, while keeping alive a possible negotiation for some other form of political office, will make the possibility of secession greater. Some in the constituency may push for outright independence, and question the leader’s legitimacy if he compromises on that goal (or, in a related dynamic, a challenger might seek to outbid the leader by appearing to be more ideologically pure). A leader who may not have wanted secession, at least not as his first choice, might find himself obligated to pursue that goal in the interests of political survival, depending on threats from challengers and concerns about maintaining office and a winning coalition. The Hamoodur Rehman Commission viewed the Six Points as being extreme and, on face value, “of such a nature that West Pakistani leaders would be justified in believing that it either meant secession or clearly opened the way to it” (Hamoodur Rehman Commission, Chapter 5, Section 31, p. 60). In his final broadcast, Ayub Khan stated that “some people suggested to



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me that if all these demands were accepted, peace would be restored in the country. I asked them in which country? For the acceptance of these demands would have spelled the liquidation of Pakistan” (Hamoodur Rehman Commission, Chapter 5, Section 35, p. 61). But Ayub’s view does not consider the demands as a bargaining posture, or the possibility of brokering a compromise—which Mujibur Rehman appeared to not rule out, as indicated by the Hamoodur Rehman Commission. The Hamoodur Rehman Commission suggests that Mujibur Rehman indicated that the central government could retain greater powers vis-a-vis West Pakistan as compared to its powers with respect to East Pakistan. This meant that his quest was really for an enhanced autonomy for East Pakistan, irrespective of what happened to the units in West Pakistan; his commitment was not to a purely principled support for unit autonomy. The West Pakistani units would be in a West Pakistani federation that would be joined with East Pakistan in a confederation (Hamoodur Rehman Commission, Chapter 7, Section 43, p. 78–79). Importantly, the Hamoodur Rehman Commission also notes the fact that the failure to accommodate East Pakistani political aspirations was partly responsible for the country’s breakup. This point is significant, because it describes a constitutional-level deliberation that has pointed to the need to respect the external integrity of a jurisdiction, as well as the possible consequences of not doing so. The Hamoodur Rehman Commission notes that Mujib declared his intention to support Yahya Khan as the next elected president of Pakistan. Yahya Khan appears to have had little intention of returning to barracks, that is, of giving up his position of national authority (Hamoodur Rehman Commission, Chapter 7, Sections 42, 44, pps. 78, 79). The Hamoodur Rehman Commission paints a damning picture of Yahya Khan’s incompetent and inept handling of the Awami League, which swept East Pakistan in the 1970 elections, and held the numerical majority of elected seats in the National Assembly. The electoral result was a rude shock to Yahya Khan; his flawed intelligence reports had predicted a divided, fragmented result, which would have made it easier for him to retain his position. The failure of Pakistan’s central collective choice unit to follow through on government formation after the first universal franchise national election in the country was a blow to its internal integrity, and severely undermined the promised formal constitutional guidelines. Yahya Khan’s proclamation rescinding martial law and abolishing One Unit (in June 1971) is interesting. It refers to East Pakistan as the “State of Bangladesh.” (See “Annexure ‘A’” in the Hamoodur Rehman Commission Report (p. 101–105), and “Annexure ‘B’” (the text of his proclamation), Ch. 7, pps. 106–116), and contains some significant adjustment in centerprovince relations. With respect to the “State of Bangladesh,” the Central

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Legislature was to have power over defense, foreign affairs (not including aid and trade), citizenship, currency, and debt of the center (implying that the State of Bangladesh could potentially borrow money from external sources). The State of Bangladesh would have its own Reserve Bank. The State Bank of Pakistan at Dacca would become this new Reserve Bank. It would keep its foreign exchange accounts separately. The State of Bangladesh would collect all taxes within the State of Bangladesh. This move sounds like a far-reaching decentralization of political, fiscal, and administrative functions, but its late announcement and Yahya Khan’s low credibility were likely contributors to its failure to maintain Pakistan as a coherent polity. 1973 Constitution: A Parliamentary Democracy The Constitution of 1973 was passed by the remainder of the National Assembly as well as the four provincial assemblies after East Pakistan’s secession, who declared it to be “Pakistan.” Arguably, those who adopted it had no authority to do so (Hassan, 2006: 282). Yet it “was accepted as truly representative” and was adopted “de facto and de jure” (Hassan, 2006: 282). It was the remnant of a civil war in which the majority of the population had exited. It was born in what was seen by many West Pakistanis as catastrophic state failure. Self-redefinition was needed. Choudhury asserts that the federal structure under Bhutto’s constitution differed little from Ayub’s constitution. This view can be explained by the observation that decentralization was restricted to the legislative sphere, but not in administrative and financial matters—providing an indirect assertion of the three components of decentralization that Falleti (2005) identified. The center controlled administration and finance, whereas genuine federalism “implies an allocation not only of legislative powers but financial and administrative as well” (Choudhury, 1974: 17). The challenge was to satisfy regional aspirations without promoting separatisms; “Pakistan needs today a viable national government to combat the danger of disintegration” (Choudhury, 1974: 17). Choudhury’s assertion remains true to this day. What is different is our understanding of the type of polity that might preserve national integrity. Choudhury mentions the threat of foreign machinations promoting domestic separatism, from clandestine radio in Baghdad supporting “greater Baluchistan” to the Afghani deployment of the term “Pakhtunistan” (Choudhury, 1974: 17). The lesson of East Pakistan’s secession is the need for a national government that can take care of “centrifugal forces” (Choudhury, 1974: 17), although the term centrifugal is vague and does not distinguish separatists from self-governing collective choice units that are or potentially can be productively nested within the polity without representing a security threat.



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Chief Justice Hamoodur Rehman took action against the National Awami Party, which sought to represent subnational (primarily Pukhtun) interests (Newberg, 2002). In the wake of Bangladesh’s secession, provincial autonomists were treated as threats to national sovereignty; the establishment saw outside interference and domestic insurgency as interlinked, common threats to sovereignty. A. K. Brohi, a former parliamentary affairs minister, argued that decentralization would have been possible if East and West Pakistan were geographically contiguous. Given their physical separation, however, a strong central government was necessary (Choudhury, 1955: 597). By this argument, decentralization should have been more possible once East Pakistan separated. Instead, Z. A. Bhutto moved autocratically against the Balochistan provincial government, following which the NWFP government resigned in protest. The 1973 Constitution promised the end of the Concurrent list of subjects after ten years. The Concurrent list was finally abolished by Pakistan’s Parliament in the 18th Amendment Bill of 2010, reducing the central government’s authority to legislate on some subjects. Moves such as renaming NWFP to “Khyber Pakhtunkhwa” seem calculated to appease ethnonationalist aspiration, particularly in comparison to the concern that acknowledging nationalities was a path to undermining the overall Pakistani national narrative. Princely States India was divided into the imperial domain and the princely states. There were “about” 562 princely states in India, in one count. Under the British, the princely states were a politically expedient way to “extend British control without extending British administration” (Lumby, 1954: 202; cited in Sultan-i-Rome, 2008: 129). In the mid-1800s, Lord Dalhousie introduced the “doctrine of lapse.” The doctrine of lapse provides a rationale for undermining the external integrity of a state. The doctrine of lapse allowed the British to extend authority over princely states that (in the British view) were badly administered or in which the ruler died without a direct heir. The doctrine led several princely states into direct British control. The attempts at direct control were curtailed after the 1857 Mutiny, which was in part a response to the East India Company’s expansionist policies and the annexation of Indian states. Queen Victoria then pledged to “respect the rights, dignity and honour of native princes” (cited in Sultan-i-Rome, 2008: 129). Thus, the evolved British arrangement offered some autonomy. Particularly after 1858, the British used the princes as allies. They encouraged the development of common cause and a corporate feeling among the princes. This could be the basis for bringing them into modern, developing India; however, it may also have been an attempt to organize and mobilize

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the princes as a foil against growing Indian nationalism. The doctrine of paramountcy gave the British control over defense, foreign policy, and communications. Internal administration remained the princely domain, as long as it remained solvent and not completely “debauched.” But the exact boundaries of British intervention varied from case to case. The princely states were generally poorer than the rest of India; the princes tended to believe in their own despotism and not in internal democracy. Their internal integrity was likely low, although variable. The entire Indian independence movement can be seen as an effort to assert the external integrity of India as a polity. The Government of India Act of 1935 fell short in terms of Congress’ demand that India be granted full “dominion” status. The princely states agreed to join the federation in a surprise move. The rivalries that emerged between the Muslim League and Congress and the effort to map jurisdictions that would guarantee autonomy for the Muslim League provide an exemplar that recurs in smaller form in Pakistan today—smaller groupings seek autonomy as a way to pursue selfgovernment, and as a way for their leaders to obtain office, particularly when avenues to office in the central government seem improbable. The postindependence status of the princely states was disputed. Nehru and most Congress leaders opposed continued existence of the princely states, describing them as systems of personal rule that had to go “root and branch,” particularly given that some claimed divine authority (Sultan-i-Rome, 2008: 154). In Congress’ vision, the former princely states would become integrated into India, which would have paramountcy. In contrast, Jinnah stated when the League adopted the Pakistan Objective in 1940 that the Northwest Frontier’s states were welcome to join the federation, and that the League did not desire to coerce them (Sultan-i-Rome, 2008: 155). Jinnah further argued the states were fully entitled to say that they would not join either Pakistan or India’s Constituent Assembly, and asserted that the Indian states were sovereign states; he “proclaimed his objection to the accession plan and his intention to guarantee the independence of States adhering to Pakistan” (cited in Sultan-i-Rome, 2008: 155). In the transfer, the Pakistan government was concerned about external security and its relationship to stability within the states. Consequently, the Pakistan government sought to maintain the British arrangement with those states, while recognizing the right of those states to become independent, until fresh agreements between the Pakistan government and those states could be negotiated (Sultan-i-Rome, 2008: 156). Eventually, such units in Pakistan were absorbed. The absorbed states contained self-governance institutions. One question is whether and how much these self-government capacities were altered by merger and absorption into other jurisdictions. Further inquiry here provides some windows into customary law and state-building in a quasi-state entity, and insight into the merger



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and process of incorporation into Pakistan. This provides historic grounding for considering constitutional design, and some of the historic compromises that existed. Swat State Swat State, with its genesis in 1915, represents an unusually developed example of a jurisdiction that was eventually merged with Pakistan (in 1969). As a state, it was comparatively developed and its external integrity contributed to the growth of internal integrity. To Sultan-i-Rome, absorption into the central state was a form of colonization (Sultan-i-Rome, 2008: 324). The trade-off described by Sultan-i-Rome summarizes some dilemmas of polycentric design: In the main the merger brought an end to autocratic rule and political freedom with comparatively equal opportunity for all was allowed. Security of service under the law, and promotions on the basis of a uniform policy were some of the positive results. On the negative side, it resulted in a dilemma for servants of the former state; an alien administrative set-up and mode of administration resulting in gross mismanagement, and plunder of Swat’s natural resources; upheaval of the social structure; and erosion of services of public utility such as the proper maintenance of roads and free health care. It also brought a system of prolonged procedures, undue delays, and high costs in the Judicial sphere. Although the special status of the area remained intact, with the merger of the state, the authority and responsibility for planning and determining priorities, allocation of funds and decisions-making was transferred from the local arena to a larger and wider national and provincial centralized government in an alien administrative set-up. (Sultan-i-Rome, 2008: 323–324)

The ills associated with distant monocentric authority are spelled out in Sultan-i-Rome’s conclusion quoted above: conflict adjudication becomes comparatively slow; common-pool resources (forests and arable lands in this case) are overexploited; an increase in administrative mismanagement accompanies a decline in public service provision. The easier transport access to the region under constructed roads meant new users, particularly those in the lumber industry. This “development” may have also displaced local authority and institutional arrangements. Bringing the area into conformity with national laws did have a benefit in that it brought relative equality under the formal law, compared the relatively unequal prior regime. Tilly’s perspective on state-building and war-making (Tilly, 1985) can be read into Sultan-i-Rome’s narrative account of Swat’s history, although state-building and war-making are sometimes accomplished in subtle and nonviolent ways. Swat’s leaders had internal rivals. They also had external

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rivalry, particularly with Dir and Amb. The Nawab of Dir and the Bacha of Swat fought frequently; the Nawab of Dir sought to reoccupy lost territory in Swat (Sultan-i-Rome, 2008: 93). The Bacha Sahib succeeded in licensing arms of the people in Swat, no small achievement given the traditional attachment of Pakhtuns to arms. Rather than disarmament, this was a “control and regularisation of arms by the state” (Sultan-i-Rome, 2008: 247) although some illegal arms persisted. Tolls and house taxes, part of revenue-raising by Abdul Wadud (of the Miangul ruling family of Swat), caused protests. State-builders had to raise lashkars, or fighting forces, when needed; when clans were reluctant to give the support the leader sought, insecurity could result. Luck and diplomacy were then needed. In effect, consolidating Swat was an exercise in miniature state-building. The British eventually recognized the Mianguls’ authority, providing de jure recognition to their de facto quasi-state. The Great Game politics continued in the background, and there were conspiracies in which the Political Agent allegedly had a hand. Swat was seen as more “modern” than other areas in the British NorthWest Frontier Province. At one point there were two cinemas; there was also a ruler who installed a telephone system and was interested in developing a motorway. Though the ruling family (the Mianguls) took some legitimacy from their Sufi heritage, they were generally interested in a more Western, secular order in Swat. In a “consolidation phase,” there was a conflict between Abdul Wadud, the incumbent ruler, and Sandakai Baba, a Pir who became a challenger, trying to stir the ruler of Dir against Abdul Wadud. Abdul Wadud declared that “a Pir and a Ruler cannot last together. So one, and only one, should be the Ruler. And if you are the Ruler, you have to limit the influence of the Pir. And if you can’t remove his influence, you can at least remove him” (quoted in Sultan-i-Rome, 2008: 93). Thus, to the ruler Abdul Wadud, Sandakai Baba posed an internal threat who tried to foment an external threat. Abdul Wadud declared Sandakai Baba a kafir (disbeliever), and drove him and other Pirs out with political influence (Sultan-iRome, 2008: 93). Swat had a relatively well-developed administrative apparatus. Swat remained largely autonomous although it had technically acceded to Pakistan (Sultan-i-Rome, 2008: 159). The Swat Interim Constitution Act and the Supplementary Instrument of Accession made Swat a federated unit of Pakistan, but did not result in political uniformity. Most rulers of princely states in Pakistan signed the 1954 Supplementary Instrument of Accession. The Nawab of Dir, who refused to sign, was deposed in an action against him by the Pakistani government. Swat’s autonomy was greater than that of Bahawalpur and other units in that the Pakistani government did not install a chief minister (Sultan-i-Rome, 2008: 160).



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Swat State eventually acceded to Pakistan on “‘the same terms as existed with the previous British Government’” (Sultan-i-Rome, 2008: 157). The Pakistani government ratified the British era treaties. The Pakistani government’s subjects for legislative and executive authority were mainly external affairs, defense, and communications. It appears that the arrangement worked well for Pakistan, which could now treat Swat as its territory, and for Swat’s government, which saw itself as continuing as an independent state in a status comparable to its existence under the British Empire. In an intriguing manifestation of the competition between Swat and Pakistan over authority and influence, Swat attempted to claim that Kalam was part of its territory, and occupied it on the night of August 14–15, 1947. The Pakistani government refused to accept this occupation as legal until 1954. In a face-saving maneuver, the Pakistani government recognized Swat’s ruler as having “administrative” duties over Kalam and paid him financial remuneration for his services (Sultan-i-Rome, 2008: 160). This could be described as a de facto extension of jurisdiction that was eventually recognized. There is a telling observation made by a Chief Secretary regarding the Pakistani government’s acceptance of Swat State and its autonomy: “it would probably be far more troublesome for the Central Government to take over Swat than it would be to leave things as they are now” (from David Dichter; quoted in Sultan-i-Rome, 2008: 159). In other words, a weak central state apparatus and government, confronted by a powerful unit, made a simple cost-benefit analysis and allowed the state of affairs to continue. This amounts to accepting a de facto collective choice activity, something that has taken place elsewhere in Pakistan. A key factor in the merger of Swat State with Pakistan may have been a shift in secret subsidy to the ruler, and his subsequent ability to thwart rivals for leadership (although Sultan-i-Rome’s study does not clearly indicate what happened to the secret payments). If accurate, this represents a direct manifestation of the observation that outside resources can undermine local institutions (Gibson, et. al, 2005). Other likely factors include the changed policy under the martial law-based regimes of Ayub Khan and Yahya Khan, internal opposition to the rule of the Mianguls, the inept performance of the last Miangul leader, and the personal ties between the ruler of Swat and Ayub Khan (two sons of the ruler were married to two daughters of Ayub Khan). External and Internal Integrity of the States’ Jurisdictions: The Fiscal Equivalence Principle Compared to India’s effort to remove the authority of princely state rulers, Pakistan’s early history took a relatively hands-off approach, showing some support for the external integrity of some jurisdictions. Swat’s demonstrated

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military prowess likely contributed to its relative autonomy. Effective warmaking was a major feature in Swat’s life. Swat’s militia was reputable, as evidenced by their deployment to fight in Kashmir. The prior developmental history of Swat as a self-governing entity has an important complication in the significant role of external payments, which may have prevented it from attaining a more self-sustaining fiscal path, the fiscal equivalence principle being important for internal integrity, as described below. One developmental benefit of recognizing and incorporating collective choice units has to do with the fiscal equivalence principle: that resources will be better mobilized and local governance will be more effective if expenditures for public services in a particular jurisdiction arena are paid for by broad-based revenue extraction from within the jurisdiction, and particularly from beneficiaries of the service. Without such fiscal equivalence, political factions might see the treasury purely in terms of the pursuit of their narrower distributional interests. Governance choices can become particularly misaligned with local self-governance when resources are drawn from an outside or narrow source. In some cases, it may resemble “crypto-imperialism,” a condition of formal autonomy that actually hides dependence and subservience to outside agendas. This can effectively compromise the external integrity of the jurisdiction, an example of domestic colonialism in the polity. The Mianguls history and ascendancy to ruler status in Swat offers an example. They were paid a secret subsidy by the British (one hundred rupees a year, at irregular intervals, apparently), and in return behaved as British clients, seeking to demonstrate their loyalty in rhetoric to the British Empire as well as their strategic value as assets. Miangul Abdul Wadud did this by persecuting and repressing anti-British elements, such as the Red Shirt movement, or by fighting the anti-British Haji Sahib of Turangzai and Sandakai Baba. Abdul Wadud declared that the anti-British activity was against Islam, and this apparently swayed many who respected the Mianguls’ religious leadership because of their descent from the saint Saidu Baba (Sultan-i-Rome, 2008: 131). Appeals to Islam As apparent in the conflict over the Miangul’s rule described above, the insurrection sought to mobilize under an Islamic claim, and Abdul Wadud’s repression also deployed potent Islamic religious symbolism. An appeal to Islam was used in the struggle for legitimacy between incumbents and challengers in Swat. Earlier, in 1897, Abdul Wadud had joined a proclaimed jihad against the British in Malakand, declaring that he would have been declared an infidel unless he joined the fight (reported in Barth, 1985; cited in Sultani-Rome, 2008: 129). Later, as a British client, Abdul Wadud declared antiBritish elements to be against Islam.



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With regard to the form of implemented “Islam,” the system under Abdul Wadud combined local tradition with “Islamic” elements. A glaring example is the riwaj inheritance system which denied inheritance to females, while also leaving widows and unmarried daughters and sisters of the deceased where no male descendants were present as the possession of the close male agnates, to be married off by the male agnate’s wishes (Sultan-i-Rome, 2008: 250). These departed substantively from widespread understandings of sharia. More recently, a push in 2009 for “shariat” (sharia) rule in Swat under the Tehreek-e-Nafaz-e-Shariat-e-Mohammadi (led by Sufi Mohammad) asserted that prior rule in Swat was “Islamic,” and claimed to seek a restoration. One interpretation is that this was a call for restoring local autonomy, in the form of an ideological critique of the existing Pakistani system. However, it did not fit the polycentric metanorm because (among other things) the TNSM approach described the rest of the Pakistani legal system as illegitimate, suggesting that it did not accept other collective choice units. It also had a reputation as being highly coercive, indicating a lack of internal integrity in the domain it controlled. Kalat The Khanate of Kalat provides a different case than Swat State. Kalat was a large jurisdiction in territory, and had lower internal and external integrity as a jurisdiction under the British. With Pakistan’s creation, the Khan of Kalat waited until 1948 before acceding to Pakistan, although the terms of the accession (whether it took place under duress, or whether it was revocable) were contested. In 1951, Kalat became part of the Balochistan States Union. In 1958, the Khan of Kalat allegedly attempted secession in response to Pakistani military bases in the region. The Pakistani military was deployed to coerce Kalat, and the revolt leader Ahmed Yar Khan was arrested. Insurgencies have recurred in Balochistan, and it remains among the most potent possible ethnonationalist challenges to Pakistani state authority. Power was divided between the Khan and the sardars (clan or tribe chiefs). The sardars competed for larger estates and resented the Khan’s efforts to intrude into their domains. The Khan was largely nominal, and the personal eccentricities and incompetence of those holding the position of Khan did not help. One was brutal, reportedly killing 3500 people, apparently 100 for every year of his rule. Another obsessively collected expensive exotic objects. Ahmed Yar Khan started out as a weak and impressionable figure, with great loyalty to the British, but ended up getting apparent sardar support for more centralized rule. This was (according to Axmann, 2008) partly because there were other political forces stirring in the area. The sardars preferred to unite with the Khan because they at least had ideological or cultural similarities.

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Facing a loss of authority and power, they banded together. Ahmed Yar Khan worked out a compromise with the British. British subsidies altered the relationship between the Khan and the sardars. The sardars became less like elected tribal chiefs (which tend to be egalitarian and have some accountability before the tribe) and more like feudals (who follow a more despotic model) because they were no longer dependent on tribal support for their resources of rule. The Balochi sardars resemble marauding “roving bandits,” to use Mancur Olson’s term. Yet each had local authority too. Foreign intrigues gave the sardars complex and shifting opportunities, as their interunit rivalries played out in a polycentric context that had both de facto and de jure components. This was most apparent in the era of World War I and the German attempt to gain influence. German agents tried hard to recruit Bahram Khan, who had a reputation as a ruffian. Distinguishing a “robber chief” from a tribal sardar is not always easy, and raises the tricky question of legitimacy. Bahram Khan was mainly interested in payments and weapons that the Germans could give him. When the Germans stopped their support, Bahram Khan simply robbed them. The Pakistan government sought continuity with the British Raj, possibly in the hope that continuity in the status quo would mean stability. The exact form of Kalat’s accession remains disputed. In another jurisdictional shift, the Baloch States Union was created and then dissolved before Kalat was integrated into Balochistan province. The Khan of Kalat, Mir Ahmed Yar Khan, sought primacy among other princely domains. He regarded Las Bela and Makran as subsidiary entities. The Pakistani government, in a possible attempt to strip Ahmed Yar Khan of his domain, officially viewed Makran and Las Bela as separate states. They were recognized as such, along with a particular leadership. Personal financial incentives were used to get all the rulers to join the Baloch States Union. Under the 1955 One Unit scheme of the Pakistani Governor-General, West Pakistan was to become a single unit, balancing the more populous East Pakistan, and ending the autonomy of various constituent parts (with the exceptions of Swat, Dir, and Chitral). Baluchi leaders opposed One Unit by organizing a new party, Ustoman Gal, for that purpose, and also demanded a unified Balochistan (a demand that was not entirely new); the Khan of Kalat “organized widespread demonstrations and an autonomy movement against One Unit that helped to spur the military’s intervention in politics in 1958” (Newberg, 1995: 53). Appeals to Islam Foreign state agents made repeated attempts to mobilize support by appeals to Islam. German agents in Balochistan, Afghanistan, and Iran tried to spread



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anti-British propaganda. They sought to foment a jihad against the British (Axmann, 2008: 56–7). The Afghans played their “usual Afghan game of positive neutrality, waiting to see which side would win, and being prepared for either eventuality” (quoted in Axmann, 2008 48). The Afghani Amir Habibullah Khan sought to “maintain political and economic independence by playing off Afghanistan’s neighbors against one another, with Germany as the ‘third force’ in the constellation of powers on the Central Asian scene” (2008: 48). The Great Game Russo-British contest was the setting for strategic calculations by local actors. An intercepted German letter shows agents speculating on whether a full-scale invasion by a friendly power (Persia) or inciting revolutionary insurrections would work (2008: 52). Antagonism between the Russians and the British was the main reason for Afghanistan’s existence. The Germans sought to cultivate ties with Afghani amirs and the Ottoman Empire as a way to globalize the war against Russia and England. Eventually the Ottoman sultan declared a jihad, seeking to incite Muslims in India to rebel (Axmann, 2008: 46), in language that finds echoes in some more recent jihad declarations. The German propaganda in Sarhad included the claim that Kaiser Wilhelm had accepted Islam, and that the German nation had converted. But the Baloch remained apparently immune, as they had to the call for jihad from the Ottoman sultan. This was due largely to the absence of literacy, a press, and political consciousness, but also because the British had been so successful in instilling political fragmentation through the jirga/sardar/levy system. Pakistan’s central government has engaged with Balochistan through a mix of heavy-handed repression and subsidies to sardars. The region as a whole was heavily interpenetrated in the Great Game era. Kalat’s experience helps show what even a weak quasi-state entity can do in providing a backdrop of grievance against the central state. Appeals to Islam as a way to mobilize large numbers appeared unsuccessful in the above examples, perhaps due to the fragmented nature of authority structures, which present multiple veto points and therefore reduce the probability of large-scale mobilizations. Party Politics and the Limits to Regional Autonomy The end of One Unit gave the smaller provinces a political opportunity to pursue their claimed rights against the central government (Newberg, 1995: 154). The National Awami Party felt that the “two-nation theory” (which described Hindus and Muslims as the two nations around which states would be based after the end of British rule) had been destroyed by the civil war and Bangladesh’s secession. The NAP continued to pursue greater provincial autonomy than that provided by the 1973 Constitution, national rights, and “justiciable civil liberties” for its political leaders (Newberg, 1995: 152). The National Awami Party nationalities doctrine was recognizable in the various views of

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Wali Khan, Jam Saqi, and Ghous Bakhsh Bizenjo, political figures from the North-West Frontier Province, Sind, and Balochistan, respectively (Newberg, 1995: 152). In the period after the breakup of Pakistan, where regional autonomisms were depicted as threats to national unity and integrity, the NAP was accused of anti-state activity and was ordered dissolved, despite a shaky and poorly argued case against it (Newberg, 1995: 151–156). The government based its action on the belief that the NAP had violated the “ideology of Pakistan” without explaining that ideology. The ensuing court case became “a tribunal not only on the 1970 elections, as Khan Abdul Wali Khan suggested, but on the theory of the Pakistani state” (Newberg, 1995: 152). The NAP’s concept of a “multinational state” was contested, and the case reflected debates on provincial autonomy from before 1947: whether the state was the creation of the provinces or the center, whether a unitary state nullified the ethnic ties of provincialism, whether the provinces could remove themselves from the union when faced with central government policies contrary to their perceived interests, and, as always, who was to speak for the voter. (Newberg, 1995: 152)

In other words, a key issue in constituting a polycentric order was the degree of provincial autonomy, and the court decision went strongly against the position held by the party representing the smaller provinces. The government, formed by the Pakistan Peoples Party, insisted that the “quantum of autonomy” had been determined by the 1973 Constitution, and saw the NAP’s proposed constitutional change as a challenge to the PPP’s authority (Newberg, 1995: 152–153). Importantly, the way power is distributed in “federal, zonal, confederal, and consociational governance” was not discussed in the court judgment, which instead focused on provincial autonomy as a product of manufactured political unrest rather than constitutional debate (Newberg, 1995: 154). In other words, a moment at which a polycentric political arrangement around Type I jurisdictions could have been debated did not turn into a full-fledged exercise in deliberative constitutional design. Rather, that moment became a vehicle around which the disenfranchised were crushed in the political survival interests of the dominant party. After a military coup against PPP leader Z.A. Bhutto, the NAP leaders were released, suggesting a political survival calculus played.a role in the anti-NAP action. Summary In sum, there has been a push for the autonomy of jurisdictions that has been quelled or permitted depending on the political calculus at the center. This impulse has been entangled with struggles between units, and the perception



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that the center has been dominated by some unit interests and some ethnic groups, as in the claim that the center represents a Punjabi domination over other areas. Recently well-known (or notorious) manifestations include the annual political interrogation of the divisible pool of the National Finance Commission awards, and the calculation formulae. Another example is the disputes over controversial dam-construction plans, typically pitting Punjab against the other province members who fear flooding, damage to fish stock, water scarcity, or receiving less than their perceived deserved share of the benefits. One may argue that Punjab’s post-1971 status as the “core ethnic region” (Hale, 2001) in Pakistan’s ethnofederation exacerbates these tensions because of Punjab’s bargaining weight and implicit threats. In the case of East Pakistan, the failure to accommodate autonomy aspirations contributed to the breakup of the polity. A materialist interpretation would emphasize the role of currency valuation in export goods pitting economic sectors in the East and West against each other. There are also ethnic interpretations—the language controversy, in particular, helped further ethnic polarization. Autonomist positions may have been appropriate bargaining postures for political leaders seeking political survival. In the case of the princely states, merger or forcible takeover contributed to the circumstances in which strident and violent mobilization, or outright insurgency, emerged. Constitutional-level deliberation as seen in the Hamoodur Rehman Commission Report emphasized the need for eliminating corruption at the political executive level, as well as the need to consider reasonable political accommodation of unit autonomy. Throughout, the repeated tinkering with or “gerrymandering” of jurisdictional boundaries has compromised internal and external integrity. Type I boundaries in Pakistan appear to have been changeable and fluid, particularly when compared to the image of highly stable entities described in Hooghe and Marks (2003). This aspect poses challenges for constitutional arrangements based on a polycentric metanorm. While this brief selective look has not attempted to comprehensively survey the sources and trajectories of jurisdictions in Pakistan, these examples highlight a key question: which jurisdictions are formally recognized, when, and how. Jurisdictional recognition processes and tensions can be understood in materialist, ethnic, bargaining, or comparative efficiency terms, among others. The Hooghe and Marks (2003) depiction appears further inverted in the Pakistani case when considering some Type II jurisdictions, described below. TYPE II JURISDICTIONS IN PAKISTAN The literature on federalism tends to emphasize Type I jurisdictions, but there are other collective choice jurisdictions. Type I institutions have

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general-purpose jurisdictions, nonintersecting memberships, jurisdictions at a limited number of levels, and system-wide architecture. “Type II” institutions have task-specific jurisdictions, intersecting memberships, no limit to the number of jurisdictional levels, and flexible design (Hooghe and Marks, 2003: Table 2, p. 236). Compared to Type I, Type II institutions are more transient, more specific to a particular service or governance-aspect, and often not as territorially bounded. Pakistan’s experience does not match the Hooghe-Marks definition in that some Type II jurisdictions outlast the Type I jurisdictions, appearing comparatively stable and durable in some notable cases. As Skelcher (2004) notes, Type I and Type II entities can relate to each other in ways that are parallel, incorporated, complementary, or oppositional (see Chapter 2 for further details). In a low-capacity state like Pakistan, Type II arrangements are often permitted or welcomed because they provide functional outcomes at little cost to the incumbent. These Type II jurisdictions can be formally incorporated, or worked in parallel or complementary ways to other jurisdictions, or, be oppositional. While some Type I jurisdictions have appeared and disappeared, the Type II have stayed and even thrived. This may be because the Type II jurisdictions are the ones most responsive to actual demand and therefore have a loyal support base; they better represent and respond to constituent demands and needs. What follows below are brief introductions to four collective choice units that may be described as Type II jurisdictions. The four vary in several respects, and this makes for some valuable comparisons between them. Memon Jamaats The Memons are an ethnic group and a well-established business community in Pakistan (other examples of communal groups historically associated with business include the Bohris, the Khojas, and the Chiniotis). Memon Jamaats (translatable as Memon Congregations) are a form of collective choice jurisdiction, with weak coercive power and without binding authority, but with significant levels of service delivery and legitimacy that make them a common recourse in collective choice matters. The Memon Jamaats are tied to kin networks based on city of origin (Jaipur, Bantva, Dhoraji all have their own Jamaats). Whether to categorize the Memon Jamaats as a non-territorial Type I unit or a Type II unit is debatable. The communal restrictions on Jamaat membership suggest a Type I organization, but this is complicated by the fact that users and donors are also non-Memons. Another possibility would be to describe the Memon Jamaat as Type I jurisdiction, and to consider the specific functional jurisdictional areas (such as schools or clinics, with intersecting memberships and task-specificity) as formally incorporated Type II



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arrangements. I have characterized them as Type II because of the prevalence of function-specific institutions. The Jamaats appear to have grown from Memon trust networks. To donors and Jamaat functionaries, there are reputational benefits to involvement. Those benefits may pay off in status and social connections. Moreover, there are religious incentives; social service activities are seen as religiously meritorious; and Jamaat members are often practicing Sunni Muslims. Given the great gaps in health care and education, efforts like the Memon Jamaat’s are widely accepted. Jamaats provide services to constituencies, adjudicate marriage disputes and help smooth other social transactions. In effect, they might be part of the social infrastructure that promotes the Memons as a business community, and they might also be an example of the power of community ties in supporting positive political economic outcomes more generally. Many Memons migrated to Pakistan during partition. Some Memons describe a common ancestor, one who converted to Islam and brought along his kin and local associates, who then proliferated. There are also some dress and cuisine styles that are associated with Memons. Thus, an ethnic consciousness is present in the Memon community, although Memons do intermarry with those of other ethnic groups, and identify as Sunni Muslims. Memons have a reputation for business acumen. Strong community organizations like the Jamaats helps provide the social capital and the information needed to smooth and enable transactions; these in turn facilitate the growth and persistence of collective choice entities. Memon Jamaats have persisted since Pakistan’s founding, tied to specific Memon communities defined by their geographic origin, such as the Jetpur Memons, and the Dhoraji Memons. The Jamaats have produced a variety of collective choice arrangements specific to non-territorial communities, and with particular areas of function. They appear to have endured under diverse regimes, including the unitary Ayub period, and through the Martial Laws, etc. One example, the Bantva Memon Jamaat was established in 1950. The Bantva Memon Jamaat school, Ronaq-e-Islam, went all the way to matriculation, for an unexceptional fee. (Like many other services, the explicit rationale for the Jamaat activities is to perform an Islamic duty, as reflected in the name of the Bantva Memon school, Ronaq-e-Islam [meaning “Light of Islam”]). The Jamaat also provided some scholarships. The Bantva Jamaat may have been the first to have a hearse and bus for funerals. It set up a fund for divorcees and widows, and worked to mediate marital disputes. The Jamaat records Memon births, divorces, deaths, and marriages and transmits the wedding documents to the government court. The Jamaat has a reputation for better record-keeping than the official government. The Jamaat has philanthropic activities that provide free dialysis at a hospital and while it

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aims primarily at the Memon community, others are not necessarily excluded. There are nominal user fees for social services, and funding comes from philanthropic contributions. When the Bantva Jamaat founder passed away, the stock market closed for half a day, reflecting the social esteem he enjoyed and the value placed on the Jamaat’s services. Pakistan’s Memons have been successful at creating formal organizations for collective choice. One can identify more informal associational life supporting other mobile ethnic groups. For example, rural Saraikis (usually from southern Punjab) migrating to Karachi will seek out others from the same village or same background in hopes of leveraging that trust network. Not every community enjoys the strong social ties of the Memons. Others are more dislocated and riven by internal distrust, dissent, and rivalry, as well as mutual isolation. A polycentric approach may favor those with “strong community” and well-established trust networks with the ability to generate and maintain self-governing collective choice institutions. Over time, a stable polycentric metanorm-based constitutional order may encourage more collective action and the development of additional collective choice mechanisms, moving latent and inchoate community potentials to more active self-governance, and “crowding in” civic virtue. One possible problem is conflict between rival Type II associations—competition that becomes destructive rather than “coopetition” that features some competition as well as mutual learning. The case of the Edhi Foundation described below seems to fit the more socially productive category. Edhi Foundation The Edhi Foundation of Pakistan, now reportedly the world’s largest private ambulance network, provides such services as birth, mortuary, shelters to orphaned or abandoned persons, and addiction treatment, and has outreach in and out of Pakistan. The Edhi Foundation’s activities can be considered parallel to those offered by Type I jurisdictions (e.g., there are governmentally supported ambulance services) or complementary (where the Edhi presence provides ground support alongside official governmental intervention, such as a natural disaster) (see Chapter 2 for more details on the theoretical distinctions). The donor base for the Edhi Foundation may be compared to the “tax base” in Type II functional overlapping competitive jurisdictions (Hooghe and Marks, 2003). Donors view their contributions as social investment (or moral investment, or religiously meritorious charitable activity, such as zakat or sadaqa). Edhi’s outreach tries to convince donors that the cause is worthwhile. Reputation matters greatly, and Edhi’s marketing outreach in Pakistan persistently underlines founder Edhi’s personal humility, dedication, and unimpeachable character. Eqbal Ahmed, a noted Pakistani political analyst,



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described Edhi as “Maulana” (usually a religious title) and referred to him as a Sufi saint. Edhi’s death was an occasion for mourning. This outreach may be because the culture of formal accountability is weak in Pakistan; in contexts where formal transparency and accountability are the norm, Edhi’s outreach shifts to emphasize impressive facts and figures (Malik, 2007). The Edhi Foundation might be described as a charity organization in a competitive charity market (Malik, 2007). Yet it has strategic outreach and intersecting “membership” (not precisely membership because it is donation-based, and services are available to non-members, who pay later if they are able to). Yet, it is arguably the case that Edhi services do serve members—they serve a needed religious function and they improve the quality of public life—removing corpses from streets, helping control infectious disease, providing sanctuary for battered women and abandoned or orphaned children, as well as drug addiction treatment and basic mental health services. Such services are offered by formal government entities in many developed countries, and, in theory, are also offered by formal government entities in Pakistan. In practice, a massive gap exists between public health needs and services provided. Over time, the Foundation has received significant government recognition. The Edhi Foundation’s prominent services in such areas as disaster relief, and moving unclaimed corpses to morgues, are widely acknowledged and relied upon. The Edhi Foundation resembles a Type II jurisdiction, a specific functioning organization that performed socially demanded functions. Unlike a Type II jurisdiction in the sense used by Hooghe and Marks (2003), the Edhi Foundation is not primarily collecting taxes (although there are typically nominal user fees). Rather, the Edhi Foundation seeks to establish itself as “donation-worthy” in a moral market of those who wish to give charitable contributions and seek worthwhile recipients of what might be called “social investment” funds. Significantly, the Edhi Foundation’s inception involved a public break between its founder, Abdul Sattar Edhi, and the Memon Jamaat, which he felt was not sufficiently open to delivering needed services to non-Memon recipients. Through personal dedication, consistent effort, and pragmatic organizational acumen, Edhi acquired public credibility, and started to draw donations. Over several decades of operation, the Edhi Foundation has become a major supplier of ambulance, clinic, and mortuary services, and the most prominent such supplier in Pakistan. In breaking with the Memon Jamaat, Edhi likely paved the way for operation in a much bigger moral market. The Edhi Foundation is not precisely a “jurisdiction” because the giving is philanthropic, and membership is not specifically tied to whether one receives services—but the services it provides fill a gap in the jurisdiction’s provision. From a different perspective, membership is tied to services: members are

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those who seek to give in social investment; the return is effective provision of services, and their satisfaction that the money is seeing good use and meeting social needs. From this perspective, the key product Edhi delivers is moral or religious satisfaction that one’s philanthropic donations are going to a worthy recipient. Thus, the Edhi Foundation might be considered a Type II jurisdiction—it has attained some recognition and authority, is supported by a donor base, and overlaps with other services. It is not a classic Type II, but in a situation of underprovided public services (or what is sometimes called a governance vacuum, reflecting the corrupt and low-capacity nature of the formal state apparatus), such near-Type II organization becomes important. In recent years, other NGO providers have gained prominence in ambulance services. There is implicit competition between the Edhi Foundation and Chippa, Khidmat-e-Khalq, and less well-known operations such as the Sultan Welfare Trust. Such organizations arise and are maintained because donors see value in them, and risk losing donor support unless they provide appropriate services—even though the link between donors and end users is typically anonymous. This might be called a “moral market” of philanthropists seeking to donate to worthy social service providers. Some organizations, such as Khidmat-e-Khalq (“Service to Creation”), are part of a welfare arm of a political party (in this case, the Mohajir Qaumi Movement), and will likely continue to exist because they also serve a symbolic public relations function. While the organizations in principle support each others’ activities, there are sometimes suspicions and criticisms—for example, claims of conspiracy between Edhi and government agencies, and some Islamist assertions that Edhi services spread social immorality—rumors and conspiracy theories that reflect a low quality of public politics. “Islam” has thus been invoked both in support of and against the Edhi Foundation. Institute of Chartered Accountants of Pakistan The Institute of Chartered Accountants of Pakistan (ICAP), which oversees and regulates professional accounting and auditing in Pakistan, was established under the Chartered Accountants Ordinance 1961. It is a self-regulating body that examines candidates for certification as Chartered Accountants, and its purview includes standard setting, quality control, and investigation (ICAP, 2012). In other words, it relates formally to the government, but has its own jurisdiction, charges its own fees, collects its own dues, and crosses geographic areas (it has offices in several places in Pakistan), while regulating a functional, specific area of activity. Its membership intersects with those of other jurisdictions. The ethos shaping the chartered accountancy profession in Pakistan has a lineage to the British accountancy practices. ICAP affiliates



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with the International Federation of Accountants, a global organization for the accountancy profession. Over the life of ICAP, various Type I jurisdictions have come and gone. East Pakistan has seceded; One Unit has appeared and disappeared; and various incarnations of local government authority have come and gone. ICAP, in contrast, has a reputation for retaining substantial internal integrity (it has established procedures for internal governance and leadership turnover) as well as external integrity (it does not face substantial intervention from other jurisdictions, and retains its international standing). ICAP’s membership exceeds 5000, and holds professional positions in over 40 countries. International affiliation and oversight arguably benefits the functional success of ICAP: having successful overseas professionals, and having membership in international bodies, imposes requirements for transparency and accountability. This contrasts with the tendency in other organizational bodies for the boards to look like family photographs (they are often composed of people related by family ties). International affiliation and a far-flung donor base (of people who pay dues) may improve the internal and external integrity of this Type II jurisdiction. ICAP represents a formally incorporated Type II jurisdiction that has been reputable and functional. KDA Market in Gulshan-e-Iqbal The Karachi Development Association owns much of the public land in Karachi and sells this for development purposes. It was created in 1957 from a merger of the Karachi Improvement Trust and the Joint Water Board. It does not receive direct funding from the central or provincial governments, but interacts with the provincial government and other entities in land development matters (Dowall, 1991). As such, it represents a Type II jurisdiction. At times, however, the Type II jurisdiction relates to other jurisdictions in an oppositional way. In particular, the KDA has been accused of corruption in contested land allocations. While the KDA operations are vast, I consider one example, the KDA Market in Gulshan-e-Iqbal, based on my participantobservation in 2008 and 2009. The KDA Market in Gulshan-e-Iqbal, a Karachi suburb, is an example of a KDA development. The market is mainly for textiles, including ready-made clothing items, some cloth sales, and other textile products, as well as some tailoring services. While they were formally created through a deliberate act of the KDA, the merchants in the market engage in substantial self-regulation, including in activities that are directly contrary to legal requirements. The merchants come from a variety of ethnic backgrounds, and have had to contend with the problems of robbery and ethnic violence that afflict businesses

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elsewhere in Gulshan-e-Iqbal and Karachi in general. The KDA market merchants’ association has been successful in preventing ethnic violence in its domain, by paying bhatta (bribes) and buying protection. Organizing to negotiate and purchase these services requires collective action. There are also strong services cleaning up the market and permitting shoppers smooth concourse, and in adjudicating inter-merchant disputes. The market allows some irregular peddlers to set up stands, but these are policed by members of the merchants’ association and given permissions that are revocable. These and other examples of collective self-governance permit the market to function, bringing customers and merchants together, and facilitating trade. Unlike some traditional souks, the KDA merchants are not a folk, communal, or sectarian brotherhood. Their association crosses ethnic and sectarian lines, including the incendiary Mohajir-Pukhtun-Sindhi divides that have often flared up in violence short distances away from the market. The association has an elected leader, and what appears to be a well-established collective choice mechanism, with yearly turnover. These are institutions for managing a collectivity; there are situations where defectors might appear if there were not rules that were policed. Association members vie for leadership. There are moral interests and prestige at stake, but there is also likely to be a material benefit to leadership. The KDA might be considered an example of a Type II institution: it has intersecting membership; the jurisdiction is task-specific; it has flexibility. While being an officially recognized Type II institution, it is perceived to have successfully used extralegal means (protection bribes) to protect and police its activities (this is difficult to verify with precision because of its covert nature). If accurate, this makes the market association both formally incorporated into a Type II unit (the KDA), while also sufficiently independent to manage itself and directly contradict the legal framework underlying its creation. The market persists, and is visibly functional, in that the market has been relatively immune to ethnic clashes and armed robbery, and that it attracts streams of shoppers. Its success may also be due to vigilant preemptive market shutdowns when strikes or contentious mobilizations in the area seem likely. Summary In sum, there are examples of vibrant Type II jurisdictions in Pakistan that may be considered complementary, parallel, incorporated, or oppositional to other jurisdictions. The Type II jurisdictions described above have endured and proved durable, while their surrounding Type I contexts have undergone substantial formal changes. This selection of Type II entities suggests a particular opportunity for making a polycentric metanorm viable in constitutional



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practice: lowering legal and administrative barriers and obstacles to Type II jurisdiction formation has the potential to “crowd in” civic virtue and generate significant provision of public goods. The path is not necessarily smooth, as competition between providers can become malign or predatory, and oppositional relations, unless constrained, may escalate to more severe conflict. These problems are starker among Type III jurisdictions, which I briefly consider below. TYPE III ARRANGEMENTS IN PAKISTAN The Hooghe and Marks (2003) typology of jurisdictions and their associated descriptions does not match the situation in Pakistan. Type II jurisdictions appear more durable than Type I jurisdictions—the inverse of the HoogheMarks presumption. The term “jurisdiction” is somewhat mismatched here because the term presumes official and formal status. Unrecognized, informal collective choice units may be described as potential jurisdictions. Type III units may resemble formal Type I jurisdictions in being general purpose, having exclusive memberships, and specific territorial spheres. Type III organizations may also be task-specific, with intersecting memberships, like Type II jurisdictions. Like Type I and Type II jurisdictions, Type III units can also come and go, although some have had notable endurance records. The presence of Type III units helps explain the dysfunctionality of public politics in Pakistan—namely that actors appear to respond to incentives and pressures outside the formal realm. In terms of the Helmke and Levitsky (2004) typology (see Chapter 2), informal institutions can be competing, complementary, adaptive, and substitutive with respect to formal institutions. Bhatta A common knowledge informal institution sometimes associated with Type III arrangements is bhatta. The term, sometimes translated as “bonus” is traceable to at least the eighteenth century, when Lord Clive took steps to cut down the bhatta side payments made to members of the East India Trading Company (Malik, 2011: 112). Bhatta can also simply mean bribes that are extracted by those in a position of official authority (e.g., driver’s license bureau staffers), as “speed money” designed to facilitate business with the state bureaucracy. The common-knowledge nature of bhatta is apparent when there are follow-up social discussions about how much one paid, and discussions about whether that was an appropriate amount, whether one got a good deal, or whether one was “unfairly” overcharged. Bhatta can affect

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transactions costs and therefore is part of the calculus shaping collective choice arrangements. Bhatta is a loose term and can mean various things. Increasingly, bhatta has come to signify protection money demanded by tanzeems (social movement organizations or political party finance machines seeking support), by criminal protection rackets, and quasi-state actors (the three categories being difficult to distinguish in practice). My conversations with merchants in Karachi in 2008 and 2009 showed that virtually all had faced bhatta demands. Threats, implicit and explicit, deter nonpayment; failure to give risks destruction of property or assault. It is arguable that long-term bhatta collection results in a kind of fiscal sociological path of services in return for informal “taxation,” if only because consistent bhatta collection requires that the collectors deliver on some promised services. Lack of transparency, however, reduces the potential social value of these activities, making them more predatory than developmental in their impact. I speculate that devolution arrangements that grant official opportunity to well-established bhattacollecting organizations actually enhance transparency and accountability, improving outcomes, in a process akin to a protection racket that becomes a more legitimate government. Such official recognition may also help control their potential violence, in a process akin to what North, Wallis, and Weingast (2009) see as the basis for limited access orders. On the surface, it would appear that bhatta collections greatly increase transactions costs and thus reduce the productive exchange on which social well-being depends. Yet the relationship between bhatta and official procedures can be complex, and in some cases, bhatta may actually reduce the transactions costs of an exchange (albeit at the cost of official policy goals). Actors’ understanding of the rules helps shed light on informal institutions distinct from formal institutions. It does not take long in Pakistan before someone chuckles uncomfortably at the official or legally sanctioned way to get many things done where official bureaucracy is involved. Those are revealing moments; they indicate the common-knowledge nature of bhatta. In terms of the typology suggested by Helmke and Levitsky (2006), bhatta would appear to be substitutive, except when bhatta payments directly take revenue from official tax collections (in which case bhatta is better described as competitive). In contrast, the bribe-taking for filing a driver’s license application is probably one that smoothens the official process—“speed money”— and so may be “substitutive” in that they converge with state outcomes, or “adaptive” if they diverge (e.g., cheating on driver’s tests). Is it possible and desirable to link bhatta to the formal state, or at least “compatibilize” it so it is acknowledged and does not work at cross purposes to state policy goals? The current approach is to simply proscribe it in formal legal terms, while in practice tolerating or even fostering it. One possibility, from Helmke and



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Levitsky’s discussions of the various intersections between informal and formal institutions in Latin America, is a permissive rule that prevents a serious crackdown on bhatta collection activities. One member of the Pakistani business elite, mentioned that rather than a unitary state, the provinces could just give some bhatta to the center (protection money, in this sense)—an ironic use of the term because the word for an informal, usually illicit institution was being used to describe a formal constitutionally delineated relationship. This reference indicates the importance of bhatta in popular discourse, and offers a perspective on the nature of extraction and legitimacy. The businessperson’s point was that the center has low legitimacy, and that payments to the center were comparable to the extortions of a protection racket. Another interpretation is that bhatta collection as well can potentially be considered legitimate, provided that the services delivered in return are appropriate. The descriptions below are common-knowledge institutional facets to social transactions in Pakistan. They do not all neatly fit into the depiction of a “collective choice unit” as an unrecognized jurisdiction-in-waiting, although they may signal an inchoate or latent unit. However, not considering them means a major gap in understanding collective choice practices, and this in turn could undermine efforts to introduce a viable polycentric order in the Pakistani context. Below are illustrative references to some prominent points in the spectrum of possible Type III collective choice units and related arrangements. Biraderi Trust Networks In Pakistan, trust networks provide an important basis for Type III governance arrangements. Biraderi, a frequently described type of trust network in Pakistan, refers to family, clan, tribe, and sometimes sect. Biraderi is often blamed for the failure of the country’s institutions to develop meritocratic procedures. Instead of one’s qualifications or performance, one’s biraderi ties predict success. Thus, biraderi ties are widely considered a bane of Pakistani public life. They function as important arbitrators in marriage and protection, and other key social transactions. They have their own “logic of appropriateness.” There is wide suspicion that such “Type III” logics of appropriateness trump the official rules of Type I jurisdictions. Biraderi groups are often presumed to be the basis for distributional coalitions. While the role of biraderi ties is commonly acknowledged, the specific ties in any particularly situation often require detailed contextual knowledge, and so remain opaque to outsiders. Drawing on theory from Tilly (2005), biraderi trust networks are segregated from official public life, and their behind-the-scenes operation significantly reduces the quality and legitimacy of public politics in Pakistan.

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In many cases, conspiracy theories and suspicions about people who lost their posts or even their lives reflect beliefs about the hidden role played by biraderi collective choice arrangements. There are visible benevolent manifestations of biraderi ties also: the organized Type II associations among the Memon community are a prominent example. Higher trust and information within the biraderi reduces the obstacles to collective action among biraderi members, but potentially reduces trust with outgroups. Biraderi can be the basis for dominance strategies that undermine a polycentric order, as members of a trust network collude in the manner of a secret society. A polycentric metanorm in practice will likely be challenged by biraderi ties, but may be well placed for a brokered autonomy arrangement of the type Tilly (2005) describes. Jirga, Panchayat, and Conflict Management Any constitutional management must consider when and where intervention is appropriate. This partly depends on what foundational rules regarding individual rights bind the overall polity: minarchist (which require the individual right of dissociation) or ordoliberal (which guarantee a broader range of basic individual rights) or other foundations. Traditional family systems are a type of collective choice arrangement. At a tribal or intertribal level, the consultation of community elders (typically men) known as jirga is another mechanism. Jirgas can help adjudicate social conflict. Panchayat village arrangements are another widely recognized local collective choice arrangement. A resident of Waziristan described a jirga conflict adjudication procedure that started with a gathering of the different parties to the conflict. They selected a third party, a respected figure, and gave wak, a form of recognition of limited judicial authority. Contrary to the formal legal system, which is based on claims and counterclaims in an adversarial setting, the indigenous process relies on subtle and oblique metaphorical references that preserve the overall community sense of harmony at a sensitive time. Using the adversarial process would ratchet up the level of conflict significantly, because it would openly declare contrary stances and grievances, which, in a communitarian setting, can appear insulting and lead to an escalating cycle of retributive conflict. In contrast, the indigenous system is a finely crafted mutually accepted mechanism for considering grievances with a view to restorative justice, so that the final outcome is often judicious in considering the various impacts of a particular decision. Nevertheless, indigenous adjudication institutions can also be corrupt and problematic from the perspective of the polycentric metanorm. In some notorious cases, panchayat systems have denied individuals the possibility of



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dissociation. This is most apparent in cases of Vani (brides, often below the age of 13, given as compensation), affirmations of karo kari (honor-killing double homicides), and the use of gang rape as a punishment. Karo kari may be interpreted as a severe sanctioning mechanism to punish deviation from norms of sexual propriety. In one description, it can be understood as a collective choice institution for managing social conflict, and preventing escalation.3 If someone has transgressed upon one’s “honor” by having an affair with one’s wife, one can declare the person a “karo” and eliminate the damage to reputation by killing the karo as well as the paramour relative. By killing one’s own relative at the same time, one prevents the kin of the murdered karo from retaliating, and possibly triggering an open-ended, destructive blood feud. Karo Kari in this description becomes a violent sanction that deters and punishes transgressions on norms of sexual relationships and honor, and in theory prevents the greater damage that could result from tit-for-tat killings in an escalating blood feud. The karo justification can also be deceptive, used as cover in property and other disputes. The above practices are difficult to see as compatible with a polycentric metanorm, even under the bare-bones minarchist formulation, because each appears to suppress the individual ability to dissociate entirely, and raises the question of whether constitutional bounds can help prevent such outcomes. The customary rule enforcement also involves the use of vigilante violence, and so can be described as a form of predatory behavior. One approach, taken from Kukathas (2003), is to enforce the right of dissociation. This could form a constitutional lower bound constraint on the collective choice institutions. As a pragmatic and administrative matter, however it is difficult to see how it would be enforced. Child marriage remains a social practice, despite significant advocacy against it in the formal political realm. This exemplifies the limits to central state power in a low-capacity context; the state has had difficulties holding people to account for violating the law. “Feudal” Authority and Elite Capture Local tyrannies—where people are subjected to coercive local figures, and treated as subjects rather than co-participants in devising institutional participants—are a critical challenge for a polycentric order. Rather than nurturing civic artisans, a landscape filled by tyrannical local arrangements (what we might call low integrity collective choice units) instead produces subjects who learn how to curry favor with authority figures. Developmentalist ideologies in Pakistan have often blamed the “feudal” system for constraining national growth and well-being. The stereotypical feudal lord, a rural authority figure known variously as the wadera, malik, sardar, or chaudhry, is powerful in official and unofficial collective choice in Pakistan. Instead of the equality of condition on

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which the self-governing local townships of the Anglo-origin settlers of New England were based, the Pakistani rural context appears to be status-based, dominated by landowners, and profoundly unequal. The degree to which landowners represent “feudalism” is contested (Malik, 2011: 65). Pakistan has not experienced a fully implemented land reform, and land ownership concentration has not seen a significant shift in concentration since the country was founded (Husain, 2000). Major land reform initiatives have been hampered or stymied by compromises necessitated by the exigencies of political survival (Malik, 2011). Hamid Khan asserts that six thousand landlords dominated the country politically and economically, and have deprived people of education in an effort to retain control (Hamid Khan, 2009: 124), and further states that “[about] eighty feudal families in Pakistan have representation in the central or provincial legislatures where they have worked to protect their own interests in conflict with the national interest” (Hamid Khan, 2009: 125). Such assertions are common in Pakistan, and were repeatedly articulated by people described in Malik (2011). Hamid Khan summarizes the mechanisms by which Ayub Khan’s 1959 land reforms failed: the ceilings on land ownership were high; the area was stretched further by “produce index units,” which was assessed as very low; land ownership was assessed on an individual basis, so land ownership in a family could be distributed among its members, particularly when landlords could connive with revenue bureaucrats and antedate their landholdings to the names of their relatives (Hamid Khan, 2009: 125). Ayub Khan later moved to include landlords in his winning coalition, particularly in appointing the Nawab of Kalabagh (a powerful landlord) to a prominent ministerial post, which may have further stymied land reform efforts. ZA Bhutto’s regime announced a land reform that had limited effect, due to evasion tactics and the landlords present in ZA Bhutto’s winning coalition, although ZA Bhutto’s adept political strategy simultaneously reached out to the rural peasantry (Malik, 2011: 95–97). Beyond traditional landowners, Ayesha Siddiqua points to a symbolic feudal mentality spurring newer groups, such as well-placed military officers, to seek to acquire agricultural land and emulate the landlord lifestyle (Siddiqua, 2008). A “feudal lord” may also be a pir, the head of a religious brotherhood, which can function as a form of biraderi trust network; this magnifies the feudal lord’s prestige and influence. An alleged influence of the feudal mentality has been the problem of elite capture, in which the majority goods ostensibly intended for collective purposes are repeatedly siphoned to private uses.4 This undermines the legitimacy and internal integrity of collective choice processes. The prominent economist and former government official Ishrat Husain generalizes this to Pakistan’s “elitist” economic model, in which “development” policy benefits are diverted to a narrow group (Husain, 2000). From a materialist



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perspective, the feudal label, although loosely used, refers to the class interests of the narrow group that dominates decision-making on agricultural production. In Mancur Olson’s terms, the “feudals” are well placed as a small group with significant resources to organize for collective action, and thus, in local, regional, and national settings, they form a powerful distributional coalition. A significant challenge for a polycentric metanorm-oriented constitutional effort is to develop “sensors” that indicate when such problems are resulting in predatory collective choice units. Yet that question is profoundly political, rather than the apolitical or technical impression that the term “sensor” may suggest.5 Indigenous Property Rights Systems: Wesh Land Distribution in Swat In an example of an established Type III arrangement, Swat had a traditional land distribution system known as wesh, which means “distribution” or “allotment” (Sultan-i-Rome, 2008: 230). In wesh, land is exchanged after a fixed period of years. The idea behind this originally was to ensure equitable distribution of land taken in conquest. In practice, however, it meant that each occupant would try to extract as much as possible during his temporary tenure, and did not have much incentive to preserve or develop the land for future users. This unintended consequence proved an obstacle to “progress,” according to colonial-era writers McMahon and Ramsay (1901): structures were poorly constructed, temporary shelters; few orchards or gardens were to be found, no new irrigation channels were dug, because “Why should a community labour for the good of the next-comers?” (McMahon and Ramsay, 1901). Others, such as the poet Khushal Khan Khattak, also criticized this system. Conflict over land distribution was rampant. While it promoted egalitarianism, wesh might have undermined the land itself, through overgrazing and insufficient cultivation. Within the customary system, there were some lands, known as daftar, that were subject to re-allotment, and others, known as serai, that were allotted to individuals with special status, such as Mians, Sayyids, and Mullahs (Sultan-i-Rome, 2008: 234). Rulers—typically hereditary figures called Khans and Malaks—had lands excluded from the wesh system, as well as daftar allocations. Some wesh elements persisted as late as the 1970s. Wesh can be described and contrasted in its implementation in adjacent regions (Sultan-i-Rome, 2008: 237). Under Abdul Wadud’s reform, wesh was abolished; Abdul Wadud’s enemies lost land while his friends gained. The motives may have been personal, but when permanent tenure was adopted, buildings, farms, and other development followed (Sultan-i-Rome, 2008: 232). The “Bacha Sahib” (title for the

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ruler, Abdul Wadud) described the land reform program as an arduous effort taking five years, requiring extensive consultation with jirgas, and a move from nomadism to settled life (Sultan-i-Rome, 2008: 232–233). Thus, local level decision-making and power struggles, and the statebuilding efforts of Abdul Wadud, lead to changes in the property rights system. Conflicts over property rights and how they were governed—who got to keep what land when—sometimes erupted into violence. The alternative, assigning more permanent property rights, had a visible impact, although it may have undermined Pukhtun egalitarianism too. These changes produced more efficient property rights, and with it, growth and development, although there is room for debate over whether the primary drivers were efficiency considerations or Abdul Wadud’s struggle to establish, solidify, and institutionalize his dominance in Swat State. The struggle can also be understood in material distributive conflict terms, with private owners defeating communal claimants. Indigenous Collective Choice and Irrigation Water: Cholistan’s Inundation Canals Among traditional arrangements for managing water for irrigation, a resilient historical example was found in the Cholistan area (although this account refers to a nineteenth-century period well before the creation of Pakistan, it nevertheless describes the interactions of local arrangements with external state authority, with potential implications for resource governance). In his work on early modern Cholistan, Barnett (2007) describes successful indigenous institutions for building and maintaining inundating canals. These were not as long-lived as the perennial ones the British came in to build, but they were locally sourced and successful at making plentiful food available in the area, and allowing it to survive despite being repeatedly attacked. Barnett’s description suggests some extraordinarily successful preexisting indigenous institutions. Barnett also believes that this legacy translated into a spirit of community pride after the British were gone, contributing to support for a Mughal era state, Bahawalpur. To the extent that historical memory can support shared understanding about expected behaviors, it may help revive “traditional” institutions. Such a revival may also support an ethic of local self-governed institutions across religious and ethnic divides, as there was a mix of Hindus and Jews along with Muslims in the region. The growth of water demand, exacerbated conflicts of distribution between riparians, and other changes mean that historical arrangements cannot simply be replicated. However, the historical roots and memory might support an orientation toward local governance in ways better suited to the contemporary situation.



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The British authorities sought a perennial canal system, rather than an inundation one, and foreign engineers were deployed for this purpose.6 However, the slow progress in this area, combined with the fact that until the 1890s, “many more new inundation canals were built than existing ones converted to year-round usage,” strongly suggests a preference for “communal, low-level technology involvement by the people who had actually done the digging and settling, rather than the centralized, impersonal, scientific water management that the British wished to concentrate in a few foreign hands” (Barnett, 2007: 78). This quote shows the durability and appeal of indigenous institutions, despite their lower technology, as well as the fact that rules were developed and policed by the local users. And Bahawalpur’s arrangements were relatively successful, particularly given the repeated raids the state faced, as well as the condition other areas in British India, where food was not as plentiful or cheap. Barnett’s conclusion is instructive from a Bloomington school perspective: many more political systems than we have been aware of had developed autonomous, workable, highly profitable, and socially beneficial institutions, along with appropriate technologies to support them, well before the British began to influence them […] external and internal boundaries of India in this period should be conceived of as fluid; their solvent, so to speak, were the pan-South Asia [trading] communities, multi-regional and intercontinental commercial networks, and the cash crops and manufactures. Economies such as that of Bahawalpur were collaborative and lightly regulated; nothing was subject to monopoly, least of all water, but rather facilitated in its distribution by several levels of political power.” (Barnett, 2007: 79)

Barnett’s observations include notable resemblances to polycentric order: self-organized users engaged collaboratively across different levels to develop an ecologically and institutionally appropriate system in terms of technology and cost to develop canals, providing effective governance outside a centralized state. The British effort to build a perennial canal system, which significantly altered the landscape and the institutional geography, can be considered an incursion into the existing arrangements in Cholistan. The British administrators did not “respect” the autonomy of the local arrangement. A key challenge for a polycentric order is when and where such arrangements are to be left intact or “respected” by the external state as a nested local governance collective choice unit—and the bias in the polycentric metanorm is usually toward protecting the external integrity of local collective choice arrangements. Quasi-state Strategies In Political Survival in Pakistan (Malik, 2011), I suggested that the pursuit of formally recognized jurisdictions (what I called de jure quasi-states) was

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an ethnic autonomy strategy. MA Jinnah’s leadership arc had presented a historical exemplar. Learning from this and other examples, as well as governance failures, a sense of disenfranchisement, and the perceived negotiability of existing jurisdiction boundaries all encouraged de jure quasi-state pursuits. Resentments toward the “Punjabi-mohajir” axis or “Punjabi dominance” fed mobilization along de jure quasi-state lines. Pakistan, because it has a core ethnic region, is susceptible to this instability. The ethnic card can also be played by Punjabi leaders encouraging ethnic competition. The accusation by Benazir Bhutto that Punjabi leader Nawaz Sharif was wearing the “turban of Punjab,” and Nawaz’s use of Punjabi symbolism on official documents, may represent the effort by a political leader to generate support by fanning the flames of ethnonationalism (Malik, 2011). What I call de jure quasi-state strategies are the “extension of Westphalian jurisdiction into the domestic arena” (Caporaso, 2000; cited in Hooghe and Marks, 2002: 237). The general problem of the demand and supply for jurisdictions has occupied the literature. A more troubling extension of the international relations metaphor in the domestic sphere is the de facto quasi-state strategies—actors that behave according to a logic of consequences in their pursuit of fait accompli, by any means necessary, including violent means. Rather than a polycentric order, this suggests something closer to the security dilemmas associated with anarchy. De facto quasi-states tend to be general-purpose collective choice units, providing what might be called warfare and welfare services (to their clients), while extracting resources for their activities. They are often extralegal or criminalized in their activities, and in some cases appear to be an informal version of Type I jurisdictions. That informality, combined with the opaqueness and variability of their activities, has placed them in the Type III category. Quasi-states can die—their death rate is much higher that of sovereign states—and consequently, quasi-state leaders have to be exceptionally nimble in responding to opportunities and threats. The environment has more severe consequences than international politics for the personal survival of quasistate leaders. Yet quasi-states can also be reborn, in different form or under different leadership. Entrepreneurial quasi-state leaders have come up with extralegal collective action solutions to such problems as protection, municipal services, welfare, and conflict adjudication. The MQM has performed these notably in Karachi, for example. Muttahida Qaumi Movement (MQM) The MQM is simultaneously a political party, a social movement organization, a quasi-state actor, a welfare agency, and a reminder of the founding trauma of partition. Originally named the Mohajir Qaumi Mahaz (the Mohajir



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National Movement; Mohajir refers primarily to the Urdu-speaking migrants from India during partition), the MQM was created in 1986 amid rising ethnic tensions in Karachi between Mohajirs and Pakhtun. Armed clashes between members of the two ethnic groups escalated. The MQM acquired a reputation for bhatta extractions from the urban population, and demonstrated an ability to turn out massive attendance at public rallies. Newspaper reports described “no-go” areas in Karachi controlled by the MQM, and a major military crackdown took place in 1992. One MQM affiliated figure claimed that 15000 people had died in the crackdown. However, the fact that the MQM survived the onslaught and, rather than being decimated, returned as a major political force, says something about the resilience of its own security apparatus (Malik, 2011: 135–139). In what was an example of its continued success in mobilizing support on the ground, the MQM has arguably defeated the Jamaat-e-Islami in competing for support from urban Urdu-speaking mohajirs. As a political party, the MQM has had weight beyond its numbers because of its powerful position in Karachi, the most important urban industrial center in Pakistan. During 2005–2010, under the Local Government Ordinance supported by General Musharraf’s regime, the elected Karachi Nazim (mayor) belonged to the MQM and was locally and regionally recognized for success in public works projects. One interpretation is that a de facto quasi-state was compatibilized through the electoral process, and was given an environment in which some measure of transparency and accountability before the law existed. While corruption is widely suspected to have persisted, some significant majority goods were produced. This suggests one model for positive developmental outcomes: it involves converting the de facto quasi-states, which have little transparency and accountability, into recognized officeholders, with some security in tenure, and the prospect of longer-term revenues and returns. In mayoral office, the MQM increased a utility tax, and made a point of demonstrating that it was delivering services. The mayor spent significant time on public relations, and emphasized his achievements throughout according to the “fixing potholes” standard of constituent service. This partly reflects the winning coalition on which his political survival depended: a majority of the city’s residents. It also reflected an effort to counterbalance threats from the provincial level to weaken his jurisdiction and therefore his autonomy and authority. That interaction provided a convenient political scapegoat for the Nazim’s supporters, who could blame the provincial authorities for stymying plans, saying us ko kaam nahin kar nay dayrahe— “they are not letting him work.” Thus, interference from other jurisdictions can become part of the blame game and the rhetorical strategy of deflection in response to the failure to

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provide services effectively. Strictly speaking, these are clashes over Type I jurisdictional scope and authority (between the city government and the provincial government). Yet they have emerged in a context in which a de facto quasi-state actor with a demonstrated on-the-ground capacity has been “compatibilized,” transitioning to a Type I jurisdiction office-holder. In a striking inversion, the MQM raised fears of “Talibanization” in Karachi, arguing that Pukhtun migrants to the city were spreading de facto control and creating “no-go” areas for the security services, echoing the rhetoric that was used against the MQM in the 1980s and 1990s. This does not necessarily mean that the MQM’s Type III capacity has been eliminated. On the contrary, a repression of their Type I jurisdiction, or removal from office, may see a reassertion of Type III activity, and there was some indication that the MQM’s removal from office is accompanied by an upswing in ethnic clashes. The situation is further complicated by the MQM founder’s sway over the organization from his self-imposed exile in London, and by splits within the party. The 2005–2010 MQM experience provides a contrast to the situation in the Federally Administered Tribal Areas, where the de facto quasi-state presence of Taliban and related actors have provided a looming background to constitutional deliberations. Federally Administered Tribal Areas Dominated by Pukhtun tribes, the Federally Administered Tribal Areas (FATA) have had established traditional institutions for collective choice and seen significant disruption and dislocation due to external and internal wars. Organized deliberations from FATA residents have come up with a proposal about how governance might be improved in a process of further integration into the overall polity. As a region, FATA has enjoyed significant autonomy since the British period. Yet FATA has borne significant costs, largely because governance (from the central authority) was not devoted to delivering public goods for development, and because of the disruptive period of the Afghan-Soviet war followed by the post-September 11, 2001 Taliban and Al-Qaeda presence. The central authority (whether British or Pakistan government) was primarily interested in external security matters, and FATA’s low population meant that its weight in development funding was light. In an example of neglect, a Waziristan resident described a violent feud over land boundaries with a neighbor (prior to the Taliban era). Heavy weaponry was used, and the Pakistani armed forces did not intervene—largely because the official jurisdiction is confined to roads, communications, and external affairs. Over the decade after the September 11, 2001 attacks, it appeared that FATA was under the substantial presence what might be called a de facto



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quasi-state actor: the “Taliban,” although the name has been used as an umbrella term for a wide variety of actors. In this context, there was increased interest in strengthening governance in FATA. One long-standing suggestion is to bring FATA into the provincial and federal rules that apply elsewhere in the polity. This would reduce the substantially different “deal” FATA has had with the central government. One concern has been how to accommodate the collective choice indigenous institutions—particularly those related to conflict adjudication and collective decision-making with respect to rule infractions. To this end, the Benazir Democracy Institute sponsored an extraordinary venture (Kamal, 2009). Several facilitated workshops convening various stakeholders from FATA were held to deliberate various questions regarding governance, merger with the polity, and the selection of collective choice institutions. While this was incomplete in the sense that the de facto quasistate members were left out (who some FATA residents reject as outsiders and usurpers), the report is still an extensive deliberative effort, and has clearly benefited from the academics at Peshawar University who were involved as facilitators. An important problem is that jirga indigenous authority structures have been systematically attacked (although who precisely is to blame is in dispute; possibilities include rival clans, Taliban, and covert operations of “deep state” entities). Kamal (2009: 83) notes that over 600 “maliks”—traditional leaders—have been killed. Since traditional governance relies on epistemic authority and community standing, the loss of an elder can undermine indigenous governance institutions, unless the elder is replaced by others with similar recognized reputations. The customary jirga collective choice process is not necessarily ideal, nor is it intrinsically virtuous, from the standpoint of ordoliberalism. However, the process has the advantage of familiarity, is relatively low in cost, and has local legitimacy. The process is familiar and transmitted as a shared understanding. A key problem for “mainstreaming” or merging FATA with the rest of the polity has to do with the risk of displacing functioning indigenous institutions and replacing them with distant, culturally inappropriate, corrupt, or costly systems. Participants at the “Mainstreaming FATA” workshops advocated various positions. Significantly, from the standpoint of polycentric governance design, three governance mechanisms are pointed out for collective choice: the traditional riwaj code, the Islamic sharia, and the formal federal law. The participants suggested that the three collective choice institutions be available to them, but that they retain the choice of which to invoke. They recommended the codification of riwaj and the formal institutionalization of Jirga. This suggests a variant of thinking about compatibilizing indigenous informal structures in the

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polity through a polycentric metanorm. Local actors retain substantial control, and have their options augmented by participation in the full polity. The exact architecture of jurisdictions and rules structuring community choices matters, but is beyond the scope of this project. For the purposes here, the report affirms an approach that is consonant with the polycentric metanorm in what has been one of the most dramatically conflict-ridden and stressed areas of Pakistan. Case-Specific Reflections Some on-the-ground developments appear incompatible with a polycentric metanorm. There have been attempts to exclude particular groups from political participation with takfir declarations (excommunication). The Taliban’s activities—to the extent that they have invaded jurisdictions and violated their external integrity, used extreme coercion within the areas of their control, employing takfir as a basis for sectarian political violence—map a multipronged dominance strategy not compatible with the polycentric metanorm. The MQM, which saw a move away from de facto quasi-state activity and active bhatta-extraction and violence provision, became a strong candidate for integration into a polycentric order, although the internal legitimacy of governance remains heavily contested and the basis for factional splits. The FATA workshops discussing integration with the broader polity have suggested a rather developed version of a polycentric set-up in practice, noting three coexistent collective choice institutions with autonomy for residents to disassociate from particular collective choice institutions. Comparing Quasi-States The MQM and the Taliban represent two versions of jurisdiction takeover. In the Taliban’s case, there is violent disruption that appears to have been partly successful, but remains heavily contested. In the MQM’s case, there was severe contestation and repression, but the MQM reemerged as a “publicpolitics” entity that was able to use its broad-based mobilization network— honed through quasi-state—building activities, including extraction and service provision—to deliver results at the polls. The Taliban, in contrast, have not had that opportunity, or have undermined the possibility of such an opportunity, and have allegedly been on a campaign of decapitating the existing institutional arrangements within the jurisdictions, and then filling in the governance vacuum with a role as security providers. The MQM may also be assessed in materialist terms as reflecting urban and lower-middle to middle-class interests. Its attempts to secure autonomy for its jurisdiction are challenged by a provincial government with a large rural (and ethnically different, primarily Sindhi) constituency. The clash



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over the autonomy of the MQM mayor in Karachi as compared to the provincial government can be interpreted as a struggle over industry and trade revenues, both official and in bhatta forms, as well as the benefits and costs to urban versus rural economic sectors. The MQM’s rhetorical fire repeatedly aims at “feudalism” and the stereotypically corrupt agricultural landlord, adding some evidence for the materialist interpretation. At times, the MQM has advocated an entirely separate jurisdiction, with “Muhajiristan” as a suggested label. More recently, the MQM leadership has emphasized its “Sindhi-ness,” describing Mohajirs as Urdu-speaking Sindhis, partly in a bid for provincial leadership, and possibly suggesting an evolving ethnic identity. Religious and ethnic identities are difficult to separate and it may not be conceptually appropriate to try to separate these. In the Pakistani case, religious symbol is ubiquitous, even in ostensibly areligious groups. The MQM refers to their martyrs as shuhada (a term drawn from the Islami tradition). They also use Khidmat-e-Khalq (“service to creation”) as the title of their social service delivery arm. Such terms carry religious overtones, even though the MQM is not primarily a religious organization. The MQM also incorporates both Shia and Sunni members, without mentioning these sectarian differences or downplaying them if they arise. The distinction between “religious” versus “ethnic” is somewhat artificial, because religious identity can be part of the definition of ethnicity (as in David Horowitz’ well-known definition of ethnicity (Varshney, 2009)). Religious reference in Pakistan is ubiquitous, even though there is variation in the degree to which particular ideology is tied to religious sources. Comparing Indigenous Institutions One might compare the traditional indigenous institutions in Swat with those of early modern Cholistan. In Swat, the wesh system was arguably inefficient in terms of generating short-term “development.” Its displacement and replacement by the efforts of state-builder Abdul Wadud in Swat produced a more efficient set of property rights, generating material benefits. The merger of Swat with Pakistan, construction of roads, and the arrival of lumber trade interests shifted the relevance of local collective choice institutions, and these were marginalized. Over time, amid displacements and increasingly violent conflicts, the Tehrik-e-Nifaz-e-Shariat Mohammadi arose, claiming to bring “Islamic law” as a response to what was widely seen as the ineffective, corrupt, distant, and costly conflict adjudication systems of formal Pakistani polity (Sultan-i-Rome, 2009). One might also depict the Swat clash over collective choice institutions from a resource competition between lumber harvesters, other local users, and other industry such as tourism or orchard-based agricultural production. There is also the possibility of understanding the

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transition in terms of the ties between Field Marshall Ayub Khan and the Swat rulership, which may have facilitated a merger bargain. Whatever the possible analytic path one refers to, jurisdictions and collective choice arrangements undergo change, and this raises questions for dynamics in a polycentric order. The depiction of a relatively isolated local resource governing by a community of users, and then threatened by market forces that change prices (e.g., offering large returns for harvesting trees as lumber) may be applicable, but further exploration of the case is necessary to draw such a conclusion. The customary wesh system had some negatives consequences, and the transition to permanent settlement, despite the fact that it created winners and losers, had a benefit in terms of land development. Collective benefit, though, remains in the eye of the beholder; it would be difficult to characterize the transition as Pareto-criterion improvement when some lost land access, and one person’s “development” might be viewed as destruction by another. Another element to consider is that institutions are not entirely static entities, but undergo ongoing negotiation, bargaining, and contestation, over questions of fairness, process, outcomes, appropriateness, equity, and related areas. Douglass North (1991) referred to this as the changes at the “margins” that tinker with institutions in an evolutionary way. North also asserted that revolutionary institutional changes—sharp breaks with the past—were possible. It is not necessary that an indigenous institution should be preserved just because it is indigenous. Rather, one should look carefully at its social costs and benefits, and consider its development consequences in the way suggested by Shivakumar (2003)—by inquiring into whether traditional institutions offer ways to address contemporary developmental challenges. An Islamically legitimated polycentric metanorm could draw on mechanisms by which local practices can be accepted as adaat (custom) or be viewed as serving the interest of community well-being (maslaha). In Cholistan, we see the interaction between a local, low-cost inundation canal system, as compared to the more costly, perennial British canals. The Cholistan system was functional, according to Barnett (2007)). However, it was eventually displaced. This may possibly be described as a loss in comparative efficiency, but the loss is supplanted by a gain in user access yearround. Moreover, there was a technological shift with significant political economic consequences: the invention of synthetic indigo altered the basis for trade in the region, and this in turn affected the strength of collective choice institutions. One can interpret the displacement of traditional collective choice institutions for canal-building in Cholistan as the result of price shifts driven by technological change, the relative power of the British in their arrangements with Cholistan, or the comparative efficiency of one collective choice arrangement over the other. While adaptive efficiency is one developmental goal in a polycentric order, another criterion is preventing interunit



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predation—although what counts as predatory behavior will sometimes be in the eye of the beholder. Summary and Type I-Type III Alliances Type III collective choice in Pakistan is a broad category that encompasses function-specific and general-purpose units, as well as other informal associational behavior that may play diverse roles. The difficulty in precise naming and categorization, however, does not take away from the tangible, commonknowledge, durable presence of Type III forms in Pakistan. There are other possible examples, such as the sizeable urban squatter settlements in Karachi, with their bhatta-acquired access to some electricity and water, “irregular” heavy construction, and conflict adjudication mechanisms. Frequently, the Type III collective choice units are functioning providers of local governance, yet remain extralegal or unrecognized entities, sometimes in competition with each other, and sometimes operating in parallel or complementary ways to formally recognized jurisdictions. A polycentric order would need minimal criteria and mechanisms for determining when, where, and how to “compatibilize” or restrain Type III units, to promote productive interrelations between units. The default position of no restrictions risks opening space for violence specialists who would use their coercive power to act in predatory ways. A common allegation is the role of deep state actors such as the military security services in conspiring with quasi-state entities for other purposes. This may be termed the threat of “Type I-Type III alliances”7, in which what appear to be local, informal collective choice arrangements and actors are manipulated by the central state apparatus for other purposes. The three-way interactions between the MQM, the Haqiqi group (a breakaway MQM faction), and the military intelligence services have been alleged to embody this, although, as with other claims about covert action, this is difficult to verify. Similarly, claims are repeatedly made with regard to militant movements, including the Tehrik-e-Nifaz-e-Shariat-Mohammadi (Sultan-i-Rome, 2009). Such Type I-Type III alliances could represent a form of predatory behavior by the state apparatus (and raises the question of how benign relations look). They add to the conspiracy theories and low trust in the official structures of the polity, exacerbating legitimacy problems. CONCLUSION There have been contradictory impulses and instability with respect to collective choice institutions in Pakistan. The widely cited framework for

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multilevel governance of Hooghe and Marks (2003) does not reflect the collective choice arena reality in Pakistan well, because of the relative stability of some Type II institutions, as well as the prevalence of what I have termed Type III institutions. The great background issue of constraints on executive power, particularly in military-bureaucratic regimes, remains a key challenge to the external integrity of jurisdictions. Pakistan has had tense and sometimes violent competition between the central state jurisdiction and other collective choice units. Failure to resolve these and constrain the center as well as collective choice units will exacerbate governance problems and constitutional crises. Appeals to a monolithic conception of Islam, by both incumbents at the center, but also challengers, have often compounded the problem by stigmatizing dissent as a revolt against religion. A polycentric metanorm grounded in religious tradition, national self-conception, and the practical experience of varied collective choice units could provide a constitutional foundation toward managing these tensions, but the devil remains in the details of processes of constitutional choice. This chapter has touched on the what, when, who, and how questions as they played out in some of Pakistan’s jurisdictions. Rather than a comprehensive survey of all jurisdictions in Pakistan, the effort has been to illustrate significant ways in which Pakistan deviates from the model for understanding multilevel governance suggested by Hooghe and Marks (2003). These point to major considerations that would influence any constitutional effort, and so must be included in the constitutional analysis. Among the key departures from Hooghe and Marks’ formulation is that Type I jurisdictions are not particularly stable, and may appear and disappear. For example, there are “devolution” experiments with every martial law regime—under Ayub’s comparatively unitary polity design, the Basic Democrats were supposed to wield local power in development projects; under Zia’s legal framework, mayors gained in power; and under Musharraf’s devolution and Local Government Ordinance, there was substantive devolution to the local “Nazim” leaders. These were usually a stratagem to check provincial authority while providing a semblance of local legitimacy. They were less an impulse for polycentric order than a monocentric one, by creating local authorities that were too small and too dependent on the central government to pose a serious threat to the central authority. Although it is difficult to generalize, change in collective choice arrangements appears to follow different rates. Type I arrangements appear more changeable than Type II (which appear, in the case of ICAP, the Memon Jamaat, and the Edhi Foundation, to be extraordinarily durable), and unrecognized Type III arrangements seem extraordinarily durable also. A constitutional architecture based on a polycentric metanorm must consider the what, whether, who, when, how, and where of accommodation between official



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jurisdictions and Type III units. Recognition does bring costs, which may be significant, depending on the setting and actor. A key issue for polycentric constitutional design is to not add to the transactions costs for functional collective choice institutions; this would reduce their efficiency, and make extralegal or de facto arrangements more attractive. The third departure from the Hooghe and Marks’ model is the extensive Type III arenas for collective choice. The most dramatic among these are probably the de facto quasi-states. In some cases, these are mafia-like entities that have sliced up sovereignty in self-serving ways, imposing extortion demands as protection rackets. They have many of the accoutrements of jurisdictions except that they are not officially recognized, and may be regarded as criminal challenges to state authority. They are comparatively opaque. That also makes them difficult to investigate. To a degree, all societies have some version of such de facto quasi-states, although one would expect more such entities in contexts where the official jurisdictions have low capacity. A de facto quasi-state cannot simply be excluded from the arrangements without incurring some costs. The de facto quasi-state has the ability to be a nuisance to the existing arrangements. It also has the potential to impose significant transactions costs on those seeking to operate in formal jurisdictions. These costs may be prohibitive for the central state to reduce. As Elinor Ostrom noted with respect to the “design principles” for durable collective choice governance arrangements around common-pool resources, a key issue was how these “nested” within the central state’s framework. The seventh principle is originally stated as the degree to which the central state “respects” the collective choice arrangements. However, this can be extended to say the degree to which the central state respects those arrangements, as well as transactions costs of altering these arrangements. When those transactions costs are too high, the central state will likely permit the local collective choice arrangement alone, permitting it to function (E. Ostrom, 2012). This may also be a place where the bargaining literature meets with the comparative efficiency one: the de facto quasi-state arrangements make it “inefficient” to try to impose other systems of governance. Or, they have the power to threaten to undermine alternative arrangements, and consequently are ignored only at the peril of those building alternative arrangements. This gives the de facto quasi-state bargaining power, and an implicit or actual seat at the table. There is a foundational matter around which this book has been built: the reality of social organization is usually polycentric, yet there is often substantial dysfunction, and destructive conflict between diverse collective choice units. How can these diverse arrangements in a productive way that generates a polycentric order that harnesses the productive aspects of self-governing impulses and understandings, while protecting the polity from internal and external

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dominance strategies? A polycentric metanorm—found in the religious tradition, the national self-conception, and some aspects of strategic learning, deliberation, and the lived experience of Pakistan’s vibrant and diverse collective choice arrangements—may support a more productive order, although there is contestation from monocentric impulses from different levels. Whether the context and other conditions lend themselves to such an experiment—along with a variety of areas for further exploration—remain open questions. The next chapter concludes this book by describing some recent developments, areas that official authorities and other polity members could consider in pursuit of a polycentric order, some pitfalls, and areas for further research. NOTES 1. Hooghe and Marks do note that Type I jurisdictions can be non-territorial (Hooghe and Marks, 2003); this is a departure from the Westphalian convention. 2. This suggests a way of understanding the Pakistan movement as not only the political survival and ascendancy of Jinnah, but also the effort of a support coalition to secure their own future. In part, this involved transplanting a winning coalition along with the leader into the new jurisdiction—generating a historical exemplar that may have set the stage for later de jure quasi-state strategies in Pakistan as forms of parochial autonomism (Malik, 2011). It should be noted that the degree to which the Lahore Resolution necessarily indicated a push for absolute sovereignty is questionable (Jalal, 2005), suggesting that the final outcome was not necessarily the preferred and intended one. 3. Preventing a blood vendetta cycle is a consequence of the dia blood-money compensation system in Somalia. The dia system also enforces minimum clan size; if one’s clan is too small, it will be unable to pay the dia, and will suffer severe revenge attacks, so one’s clan must be large enough to pay the necessary compensation if a member commits a murder (Shivakumar, 2003). Karo kari may be interpreted as committing a murder and a compensatory killing at the same time. 4. Another definition is that elite capture takes place when elites manipulate governance arrangements to serve their personal interests (Wong, 2010; cited by Lopez, 2012). 5. I take the term “sensor” from JB Ruhl’s discussion of risks to complex adaptive legal systems, and his suggestion that sensors were needed to prevent catastrophic failures (Ruhl, 2012). 6. The British wanted to turn the Indus into a transport route for commercial steamships; however, locals knew that shifting sandbars and shallows due to heavy silt posed risks to boats (Barnett, 2007: 78). Camel routes were available and relatively cheap, and so waterborne traffic was not needed on a large scale. One important cash commodity was indigo; this was later threatened by the innovation of synthetic indigo. 7. I am indebted to Eduardo Brondizio for suggesting this phrase.

Chapter 6

Viability

Can Pakistan thrive as a polity? Its development challenges are many: instability, low human development, corruption, population pressures, ecological stress, and high inequality, to name some. The simple appearance of conventionally measured economic development is not necessarily an unqualified improvement as it may feed political unrest: a troubling recent finding based on data from Pakistan suggests that political discontent rises when declining personal well-being coincides with high mobility and creates unrealized aspirations (Healy, Kosec, and Mo, 2017). Autonomist strategies of obtaining political power in Pakistan are persistent; taken to a secessionist or revolutionary extreme amid rising ethnic and sectarian affinity groups, these strategies threaten the future of the polity itself. Such strategies continue to be appealing partly due to governance vacuums and gaps in providing public goods, and particularly as a consequence of the failure to overcome a persistent fiscal rut of tax reform problems. My previous work (Malik, 2011) elaborated patterns in the central state jurisdiction, while deliberately eschewing ideas and ultimate purposes. “Winning coalitions,” drawn from a small elite, dominated the political survival calculations of incumbents and challengers in Pakistan. Given the narrow support coalition (drawn typically from the military and civil bureaucracies, landlords, business groups, and religious leaders), incumbent leaders seeking political survival had little incentive to provide majority goods or public goods (particularly strategic choices regarding taxation (which has implications for capacity-building), land reform, and other public goods provision policies). Governance shortfalls have persisted despite the varied ideological preferences of leaders. Some challengers anchored their authority in de facto quasi-state entities that filled the governance vacuum. A three-way mutually reinforcing 263

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relationship emerged between de facto quasi-states, a low-capacity central state, and underprovision of public goods and governance. Quasi-states may include mafia-like entities. These are collective choice units whose precise modicum of autonomy and external integrity are unclear and likely low, partly because they are illegal. The three-way relationship has contributed to a dysfunctional polycentricity that can be ruinous for productivity and well-being, largely because the de facto collective choice entities act in predatory ways, violating formal laws as well as informal standards of justice, and reward a narrow well-connected elite; these rent-seeking distributional coalitions siphon productive energy away from public goods, capturing policy and posing serious implementation challenges for official initiatives. If Pakistan is to thrive, a monocentrist would be tempted to deploy an ironfisted repression—but this risks a serious backlash, and is likely impossible to implement due to low political capacity. Large-scale repression would likely further dismember the country, and may trigger aggressive foreign intervention. Further, the monocentric approach could not capture the local knowledge that is embedded in many complex eco-social circumstances, the institutional diversity in a large, heterogeneous polity, or the immense selforganizing energy that can generate local responses with good institutional fit to local collective problems. In natural resource management, monocentric perspectives typically assume hat all local users are rational egoists who will simply plunder a resource for short-term gain; that designing the rules needed to change incentives is a straightforward analytic task done best by ­“objective” outside analysts; and that organizations require central direction (E. Ostrom, 2005: 238–240). Researchers in the Bloomington school have contested all these assumptions. Always relying on large-scale centrally

Figure 6.1  A three-sided reinforcing relationship around governance. Adapted from diagram 5.1., Malik, 2011: 151.

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dictated development initiatives risks perverse consequences and outright large-scale failure. A dynamic accommodation of diverse institutions and collective choice arrangements is a potentially more productive developmental path. Achieving this requires shared understandings about domains of collective choice and how they relate to other centers of decision-making. Toward this end, a polycentric metanorm grounded in the religious heritage, national self-conception, and strategic learning through lived experience, presents a possible constitutional direction. Note that constitutional arrangements here refers to the Bloomington school understanding of the constitutional level of analysis, which potentially applies to all centers of decision-making, rather than the content of the formal constitutional document of the republic. Incorporating institutional diversity and supporting the integrity and autonomy of diverse collective choice units can make heterogeneous, fragmented polities more viable. In polities with low political capacity in the central jurisdiction, there are governance potentials in unrecognized centers of collective choice. Recognizing and fostering a fuller range of collective choice centers, arenas, and potentials can be facilitated by appropriate constitutional metanorms. In modern Muslim polities, particularly those with reference to Islamic tradition in their national self-conception, a rationale grounded in Islamic tradition can support a polycentric metanorm. Pakistan, the largest Muslim state at its inception and arguably the first modern state built on an explicit Islamic identity, contained aspects consonant with what might be called an Islamic polycentric metanorm. However, Pakistan is also a cautionary tale: there are vulnerabilities and rival monocentric metanorms, sometimes overlapping with monolithic interpretations of Islamic tradition, that create serious impediments to the viability, durability, and robustness of polycentric arrangements. Polycentric systems in general are vulnerable to strategies of dominance, and there are certainly many actors who have pursued dominance in the Pakistani context. A constitutional design is meaningful to the extent that it reflects deliberative design and participation of actors and agents in the polity. A constitution for polycentric order is more likely to be functional if it reflects compromises and bargains arising from problems of interrelations between collective choice units—meaning that it cannot be delivered by an outsider. Having completed a previous study on political survival in Pakistan and its consequences for governance and development (as well as the theory of political survival itself) (Malik, 2011), I am keenly aware of the need to consider the actual political survival constraints and conditions, which are heavily contingent and often opaque, given the nature of the system. Moreover, even careful study does not necessarily produce thick contextual knowledge. That is best perceived by actors on the ground (although not necessarily completely

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perceived, or perceivable), and is only fully revealed after the fact. Further, all constitutional designs carry risks of failure in that they relies on choices by idiosyncratic humans, based on incomplete information. With the above caveat, it is nevertheless possible to consider some factors that condition the viability of a polycentric metanorm as a basis for constitutional order in a context with prominent Islamic references like Pakistan. Among threats to its long-term viability are a military distributional coalition that overwhelms other social priorities, intervening in a praetorian fashion and degrading legislative integrity in the central state and other jurisdictions and collective choice units; social inequality and power asymmetries that make a polycentric design vulnerable to dominance by the powerful and wealthy; autonomisms that may become full-blown secessionist movements; and disagreements about Islam in the polity that feed sectarian violence as well as give opportunities for legitimacy challenges to the state. The viability of a polycentric metanorm depends on the favorability of these and other factors affecting the strategic calculus of political survival, and actor choices and interactions at different levels. Constitutional choice is about the “who, what, where, how, and why” of collective choice institutions. In a political Islamic context, I have argued that a minarchist polycentric approach is one response to the “why” that fits polycentric design particularly well (Malik, 2011a). In other words, the minarchist approach represents a rationale and a metanorm. However, the polycentric metanorm is not exclusively tied to a minarchist foundation. It could also have an ordoliberal basis, or another foundation specifying individual rights, chosen as appropriate by agents in the polity. Contrary to the monocentric, monolithic vision associated with some Islamist ideologies, the presumption of the polycentric approach is that reducing central state coercive rule enforcement on contentious questions of religious interpretation is more likely to produce a religiously virtuous society. By promoting freedom of conscience and association, there is a “crowding in” effect on religious virtue, similar to how a polycentric order “crowds in” civic capacity while a monocentric one “crowds out” civic capacity (Marshall and Malik, forthcoming). Pakistan has faced substantial governance problems. Political Survival in Pakistan (Malik, 2011) presumed that leaders and challengers pursued political survival in a context where narrow winning coalitions prevailed. This helped explain low capacity, underprovision of public goods, and quasi-state strategies among challengers. But the prevailing focus on crises and political violence—urgent and necessary though it may be—should not obscure the polycentric constitutional metanorm that has recurred in Pakistan’s national self-conception and over several deliberations and experiences of error or failure. This is perhaps best revealed in the polity’s early days, although not exclusively so. The viability of the polycentric metanorm as a shaper of

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constitutional rules depends on both shared understandings of appropriateness as well as enforcement. This requires reference to constitutional rules-in-use. Both informal, self-organized collective choice units and officially recognized jurisdictions shape the constitutional rules-in-use in Pakistan, and this, together with informal and formal monitoring and enforcement, have an effect on constitutional metanorms, which in turn shape understandings of appropriateness. With every political negotiation, the metanorm is potentially reinforced or degraded, supported or contested. For example, the martial regime of Ayub severely degraded the decentralized 1956 Constitution, and Ayub replaced it entirely in 1962. The 1973 Constitution revived some elements of the 1956 Constitution. Zia’s coup in 1977 sought to retain the constitution “as nearly as possible” while giving unchecked executive authority to the Chief Martial Law Administrator—effectively gutting the top-level accountability provisions of the constitution. Following the pattern of altering constitutional arrangements, General Musharraf’s coup of 2000 introduced a legal framework as formal cover for the military regime. Military intervention continues to be a major force in shaping constitutional rules-in-use. The diagram below summarizes some relationships between metanorms and constitutional rules-in-use. Below, Figure 6.2 suggests a complex picture of the role of constitutional metanorms in shaping constitutional rules-in-use. In the terms of Figure 6.2, the Munir Report and the Hamoodur Rehman Commission Report (described in Chapters 4 and 5) were attempts to inquire into the causes of severe “error” in the polity (sectarian disturbances and a civil war), and can be described as a formal third-party “monitoring” through in-depth investigation and deliberation. The constitutional rules-in-use have the effect of reinforcing or eroding the constitutional metanorm. The constitutional rules-in-use continue to see contestation over a polycentric metanorm, but major

Figure 6.2  Metanorms, choice, and constitutional rules-in-use.

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developments such as the devolution in the 18th Amendment and less prominent, minor efforts like the recommendations of the FATA workshop (Kamal, 2009) (described in Chapter 5) suggest that a polycentric metanorm persists. Chapter 1 outlined the foundational ideas of the Bloomington school around polycentricity and institutional diversity. Chapter 2 considered literature relevant to polycentric arrangements in weak state contexts, and extended a well-known typology of jurisdictions to include informal collective choice arrangements. Chapter 3 elaborated rationales for the polycentric metanorm from the Islamic tradition. Chapter 4 explored notions consonant with a polycentric metanorm in Pakistan’s national self-conception in its early years, particularly through observations of W. Cantwell Smith, who emphasized a conception of the Islamic polity as dynamic rule diversity and heterogeneity) and the Munir Commission investigation (which asserted the practical infeasibility of monolithic Islamic interpretation by the central state in a heterogeneous context). Chapter 5 surveyed examples of three types of collective choice units in Pakistan and their interrelations, and reviewed instances of deliberative inquiry and strategic learning relevant to polycentric metanorms (such as the Hamoodur Rehman Commission Report, which pointed to the failure to accommodate jurisdictional integrity1 and aspirations for autonomy as a source of the civil war). The present chapter gives an opportunity to reflect on contextual and institutional factors that might support or detract from a polycentric metanorm, and some open questions. For example, in Tocqueville’s assessment of self-governance in the American municipalities, an important sociological condition was the relative equality of condition among the Anglo-Americans. Pakistan—and many other developing country contexts—are deeply unequal societies, characterized by wealth and power asymmetries. Indeed, some debate whether Pakistani society has “feudal” characteristics. Such social disparities would make it harder to imagine a successful polycentric order, because of the plentiful opportunities for dominance in the hands of the wealthy and well connected. SYMBOLIC CONTESTATION AND ISLAMIC IDENTITY The viability of a polycentric metanorm grounded in religious tradition and national self-conception rests partly on prevailing understandings. Contests over who can legitimately and authoritatively speak for Islam recur in Islamicate societies. Some traditional, customary approaches to religious legitimacy emphasize descent and blood ties to venerated figures. Others rely on the epistemic authority of juristic arguments or claims to charismatic authority. Diverging claims can clash, sometimes violently. This was apparent in Swat

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State as Abdul Wadud’s rule was contested, where both challengers and the incumbent Abdul Wadud used appeals to Islam to bolster their claims and target their opponents. Much later, attempts to gain religious legitimacy were apparent in the claim of Sufi Mohammad to pursue the implementation of Prophetic sharia, and in the Taliban’s claim to be pursuing Islam. Others rejected and contested these claims. In the colonial period prior to Partition, appeals to Islam were used indirectly by the British (as Abdul Wadud of Swat declared anti-British activities to be against Islam) and the Germans (in Balochi intrigues, as they sought to convince people that the Kaiser and the German people had converted to Islam). Napoleon in his brief tenure in Egypt had tried something similar to try to convince the population to accept his military force. Thus, Islam has been repeatedly deployed in the context of insurrectionary activity. This suggests a significant challenge in the minarchist polycentric order: the internal or external predator that uses an appeal to Islam to support a goal of dominance. These appeals have strategic value as a relatively low-cost ideological tactic for drawing recruits to serve political ends. The degree to which a polycentric polity is actually vulnerable to such challenges will depend on the effectiveness of collective choice arenas in producing good governance, as well as appropriate sensors to signal the need for collective defense arrangements. Through much of the Muslim world in the postcolonial period, central state authorities have made monolithic claims or sought to monopolize the symbols and language of religion, acting as arbiters of religious authority, and becoming embroiled in struggles over interpretation and over individual and collective choice domains. Symbolic questions around Islam, interpretation, and doctrine can shape shared understandings of appropriateness (or inappropriateness, “repugnancy” as the repugnancy clause states in Pakistan’s constitutions), which in turn have far-reaching consequences for constitutional rules. The presumption that interests matter, and that incumbents pursue political survival while challengers seek political ascendancy, does not make ideas and tradition irrelevant. Rather, religious tradition provides a repository of shared understandings, the interpretation of which provides prominent discursive modes by which legitimacy is claimed. How this is understood in context-specific practice requires an ethnographic effort. Similarly, the matter of national self-conception and the degree to which it is widely shared is important. One possibility is to describe the Pakistani national self-conception as not truly “national” in the sense of cutting across social sectors, but as specific to a particular class. WC Smith includes an alternative class-based analysis (foreshadowing the references to a “pious bourgeoisie” compared to the urban poor (Gilles Kepel, 2006) and a mercantile Islamism distinct from that of the sansculottes (Nasr, 2001a)).

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The new state was the bourgeoisie’s sudden acquisition, and they deployed an Iqbal-influenced romantic interpretation, of what they call Islam; while other classes in society, and particularly the peasantry, are slow to benefit, if all, from the regime, and in fact while Islam remains for them what it was before, the state remains for them what it was before also, oppressive and distant. (Smith, 1951: 83)

This summary succinctly encapsulates a materialist critique of Islamic symbol in the Pakistani state-building project: the buy-in was narrowly classbased, and the great majority remained disenfranchised, and consequently, vulnerable to alternative and anti-state appeals. If this description remains accurate, it threatens almost any political order. Religion, Class, and Ethnic Identity In Pakistan, ethnic groups not defined primarily by religion provide networks, frames, information, and trust relations that decrease barriers to collective action. For political leaders and challengers, ethnic mobilization remains a potent political survival strategy. Ethnic identity can serve as a rationale for appeals to recognize new jurisdictions (e.g., the calls for a Saraiki homeland, a Southern Pakhtunkhwa province, and “Mohajiristan” (Malik, 2011)). Networks and associational activity grounded in ethnicity can also be the basis for de facto quasi-states. The “two-nation” theory was an argument for the creation of Pakistan, encapsulated in Jinnah’s famous statement as Muslim League President on March 22, 1940, in Lahore, that Hindus and Muslims “neither intermarry nor interdine together and, indeed, they belong to two different civilizations.” One view is that nation-building in Pakistan has failed as ethnicity has triumphed, as seen in the 1971 disintegration of the state, “the ultimate deathblow to the two-nation theory” (Verkaaik, 2007: 88).2 Yet Islamic symbols, as bases for collective action, mobilization, rationale, and constitutional debate, have retained their salience or become more prominent in Pakistan, by political actors of many different affiliations, and frequently at crosspurposes with or in direct competition with each other. In terms of a polycentric metanorm rooted in Islamic tradition, ethnic identity groups are recognized as they may bring particular customs and collective choice institutions with them as common-knowledge practices and understandings (adat and urf). Even when ethnic identity groups have not made specific denominational claims, they have done little to dismiss their Islamic affinity altogether. In that sense, the polycentric metanorm is broadly compatible with ethnic identity as one basis for self-organization. If ethnonationalist

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mobilization becomes secessionist, however, it can cause severe challenges to the viability of a polycentric order. The Need for Grounding in Islamic Tradition Understanding and managing institutional diversity in a political Islamic context remain a preeminent political problem. Legitimacy challenges have repeatedly been couched in religious political terms. Official Islam or Islamic counterarguments are necessary in order to not cede ground, particularly to revolutionary challenges. Not including an Islamic frame means that opposition will have an easy way to mobilize support for a revolutionary coalition—their common claim will be that the system is not “Islamic.” As a pragmatic matter, a claim of Islamic legitimacy is often necessary in Islamicate contexts. Particularly in Islamicate contexts where religion is salient for the national self-conception, a polycentric metanorm persuasively grounded in the religious tradition is more likely to prevail in contests over legitimacy. Much discussion of polycentric governance presumes a normative civic republic context. One can argue that this is compatible with Islam and a political Islamic spirit, but the argument must be made persuasively, because contrary stereotypes and claims are numerous and loud in the marketplace of ideas. Traditional Islamic systems are largely characterized by self-governing, rather than “state”—governed societies, and the effort to impose monocentricity, particularly in low-capacity contexts, is often self-defeating and a poor constitutional fit. I contend that polycentric constitutional understandings that foster and support self-organizing behavior are potentially better suited to Islamic polities. While a polycentric constitutional architecture’s specifics cannot be outlined in an abstract blueprint, we can nevertheless reflect on some likely lower bounds and challenges, and this partial case examination of Pakistan has provided some pointers. Accommodating diversity in collective choice arrangements is and remains a key challenge for a polycentric order. This is challenging when efforts to enforce “sharia” as public law become a monolithic claim about punishments enforced by public authority—potentially denying freedom of alternative religious interpretation, conscience, and association. That debasement (compared to the Wilfred Cantwell Smith version) remains a recurring challenge, and is replicated implicitly in names such as “Islamic bank,” or the Jamaate-Islami. Wilfred Cantwell Smith’s treatise (1951) suggests that no particular construction can match the ideal; as he puts it regarding “Islamic” identity: “[that] Pakistan is Islamic is given; its interpretation of Islam is free” (Smith, 1951: 91). The polycentric metanorm supports maximizing opportunities for self-organized collective choice activity, in variegated action situations, and is open to rule-diversity based on interpretative differences and context-specific

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needs. One hope is that these provide opportunities for experimentation and mutual learning, and, when accompanied by civic discourse, produce higher quality deliberation. Building and Sustaining Civic Orientations Following Lee (2010), one can distinguish the interplay of “religion” and “politics” as ideas, institutions, identities, and attitudes. The metanorm in part results from civic orientation, one that considers the interests and perspectives of others in creative efforts to devise arrangements for mutual benefit. To Tocqueville, civil associations—if exclusive enclaves—promote an “insularity” that undermines liberty (Allen, 2005: 136). Tocqueville was suspicious of mass rallies, and concerned that they were prerevolutionary fervor rather than demonstrative of democratic attitudes (Allen, 2005: 136). This raises the centrality of covenant: “Institutions are animated by ideas as well as interests, Tocqueville maintained; where federations lacked covenantal thinking, institutional arrangements might not encourage constructive forms of civil and political association” (Allen, 2005: 132). From a Bloomington school’s perspective (as described previously in this book), covenant-like orientations are found in Islamic and other cultures. A polycentric metanorm relies on covenantal (or similar foundational) orientation that takes the interests and perspectives of others into serious consideration. In Smith’s view, an Islamic democracy, has both a political and an ethical element: it cannot exist without the concurrence of both a governmental form and a popular ideal. […] A democrat must believe not only in the democratic structure of the state; he must believe also in the fundamental significance and value of the other persons in his society. An association of cynics, or of misanthropes, or even of mutually contemptuous groups, could not run a democracy. […] The members must […] have a certain commitment to man, a certain trust in each other. (Smith, 1951: 47)

One way to describe these requirements is that there must be social capital and an acceptance of democratic ideals. Mutual contempt in attitudes, and severe lack of trust in political culture, are threatening to the viability of a polycentric metanorm; civic orientation and habits, with bases in Islamic tradition, support the polycentric metanorm. Building and sustaining such civics is a critical challenge. Education can mold a shared culture, socializing students into logics of appropriateness. Consider the quote ascribed to Thomas Jefferson on education: ““A people can remain free only if they are properly educated. Education consists primarily in learning virtue. And no people can remain virtuous unless both their

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private and public lives are infused with awareness of the divine.”” Such a quote would not be out of place in a traditional Islamic educational curriculum that emphasized ethics and character, with an overall centered consciousness of the divine—the taqwa (reverence for the divine) so emphatically repeated in the Quran as a virtue to be nurtured through acts of worship, gratitude, and forbearance. In the Islamic context and beyond, educating the young—the intergenerational transmission of shared understanding—has been widely emphasized as a key to social well-being. Education for civic virtue and for reinforcing polycentric metanorms may serve to make the lower bound of a shared understanding more achievable. Part of civic virtue would include self-policing on polarizing rhetoric; ideally, there would be a commitment to nonviolent transformation as opposed to violent conflict-group escalations. Plainly, educational settings can fall short of these noble ideals. In some troubling incarnations, educational communities become mobilized for severe culture wars, and aggravate sectarian biases. Some Pakistani experiences suggest the pitfalls of ostensible “religious” education. Educating to create an “intelligent, educated” class of mullahs was one suggestion made by an observer to the Munir Commission. From a polycentric metanorm perspective, there is a paradox: such efforts are best made outside the central state jurisdiction, yet they must work to support a collective civic orientation. Some prominent recent efforts by ulama offer a big-tent vision of the Muslim community (such as the Amman Message), and its relations with others (such as the Common Word document), affirming the covenanting aspects of Islamic religious tradition, and may indicate emerging norm entrepreneurship compatible with polycentric metanorms (Malik, 2012). From a political culture and attitudes perspective, the success of such norm entrepreneurship may directly influence the constitutional rules-in-use and enhance the viability of a polycentric metanorm-based constitution. Islamic Symbol and Institutional Diversity Referring to “constitutional design” in discussing the polycentric metanorm is somewhat inaccurate; this discussion may be better described as constitutional-level efforts to “crowd in” civic virtue, and to foster integrity in collective choice arrangements and productive relations between collective choice units. Accommodating diversity extends beyond identity, interests, and attitudes, to institutional diversity. This remains a critical challenge for existing and emerging regimes with an “Islamic” identity. W. C. Smith asserts that “the Muslim community has within itself, and pre-eminently so by virtue of being Muslim, an impulse toward social

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self-fulfillment which aims at independence not only from alien control but also for self-implementation” (Smith, 1951: 24; italics in original). This impulse for self-implementation is interpreted by Smith to mean a struggle for a state. However, a broader and more accurate way to describe it is a struggle for autonomous jurisdiction, which may be a state, or a subunit with opportunity for “self-implementation.” The autonomous jurisdiction may be Type II and issue-area specific, rather than modeled on the Type I multi-issue territorial basis (distinctions specified by Hooghe and Marks (2003)). In some circumstances, a local jurisdiction might rationally prefer something short of full statehood, which could bring with it the burden of defense and security, or not be viable for geopolitical reasons. If one extends this to individual and community ijtihads (interpretations of religious guidance) as well as customary rules (discernible in common-knowledge practices and understandings, adaat and urf), it provides a supportive basis for a polycentric order, where the impulse toward social self-fulfillment and self-implementation is fulfilled. The Ulama and Contemporary Problems of Epistemic Authority In assessing the boundaries of defining what counts as “Islamic,” one approach is to focus on the role of the intellectual leaders and specialists in the tradition. Patricia Crone (2004: 389–90; cited in Zaman, 2010) notes that with the emergence of Sunni Islam, Muslims accepted that the ummah consisted of different groups with diverse objectives under different directions with “intellectual imams” of their own, in a single community. The critical question of who has epistemic authority within the tradition remains heavily contested. One example of an effort to delineate epistemic authority is the IUMS (International Union for Muslim Scholars (al-Ittihad al-’alami li-’ulama al-muslimin)). Founded in 2004, and associated with the controversial Yusuf al-Qaradawi, the IUMS has a broad definition of ulama, and goes well beyond madrasa-trained scholars to include graduates of shariah and Islamic Studies departments at universities around the Muslim world. Its website lists 500 members. Yet it does not include, among its members, Abdolkarim Soroush (a critic of the authoritarian claims of the Iranian religious establishment), Nasr Hamid Abu Zayd, “an Egyptian scholar who had to flee his native Egypt in the face of charges of apostasy for his view on how the Quran ought to be contextualized in its original historical milieu” (Zaman, 2010: 119); and various others, including Muhammad Shahrur, a Syrian civil engineer who has advocated rethinking juridical norms through radical rerereading of the Quran, and Wahid al-Din Khan, an Indian scholar who has criticized fellow ulama for being overly critical (Zaman, 2010: 119–120). The precise dividing line between these and other scholars is unclear; Zaman suggests it is between those who have “incommensurable rather than

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commensurable forms of disagreement […] while some sorts of disagreement are to be cherished, for they have enriched Islamic civilization, others contradict the very premises of a distinct Islamic identity and therefore have no recognizable place within the community” (Zaman, 2010: 120). This idea sits closely within Talal Asad’s notion of tradition as apt performance; it is as if the IUMS and Qaradawi have sought to make authoritative distinctions between what counts as apt performance and what does not. If Qaradawi and the IUMS are not clear about the distinction, then they may be in effect anointing themselves as a quasi-church that judges what counts as authentic and inauthentic. A key divide is not between those who oppose reform and those who support it; instead, it is between those supporting a kind of reform anchored in Islam, and those supporting an insidious, anti-Islamic type of reform (Zaman, 2010: 120). This distinction is captured in the “Islamic charter” (al-mithaq al-Islami) of the IUMS, which distinguishes genuine internal reform that guides the community toward excellence and progress while retaining its unity, reforming Muslims through Islam, from external reform that seeks to distance Islam from Muslims’ lives and to weaken the community as a ploy for ongoing foreign control (Zaman, 2010: 121). In the South Asian context, the Deoband/Aligarh distinction describes divergent efforts to respond to the educational, intellectual “schizophrenia” of Muslims with regard to their religious and worldly education (Zaman, 2010). Where Deoband represents an effort to assert the primacy of traditional religious education, Aligarh represents a modernist trend. Sayyid Ahmad Khan urged Muslims to learn English and the modern sciences to better compete in the colonial economy. Aligarh Muslim University (so-named in 1920; Sayyid Ahmad Khan had founded it as the Muhammadan Anglo-Oriental College in 1875) was originally to import both modern, Western forms of knowledge and a new understanding of Islam, but Sayyid Ahmad’s modernism was unpopular with the ulama; Aligarh’s early leaders left aside the emphasis on a new understanding of Islam, instead representing only the Western side of the Western/Islamic educational dichotomy (Zaman, 2010: 122). Some will add the Ajmer orientation, which emphasizes Sufism as a third Muslim trend, although overlaps between these groupings defy the attempt to create mutually exclusive and fixed categories. The distinctions between Deoband, Aligarh, and Ajmer do not neatly map onto implications for compatibility with a polycentric order. For example, the Deobandi Alim Manazir Ahsan Gilani (d. 1956) suggested that the Quran does not contain everything (unlike Maulana Maududi and others, who saw it as the natural beginning point of all, even the natural sciences); this view originates with Anwarshah Kashmiri (d. 1933) who also taught at Deoband, and suggested “that efforts to find all knowledge and justifications

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for all human endeavors—from modern science to politics—in the Quran are misguided” (Zaman, 2010: 132). This view, along with the general bigtent approach to disagreements, is generally compatible with the polycentric metanorm. It permits difference and diversity, and values argument commensurate with tradition, while being open to other sources of knowledge in human endeavors. In terms of setting the basis for civic self-governance, the polycentric metanorm lies somewhere between the approach to differences as fixed, simply requiring the aggregation of preferences, and difference as the basis for deliberative discourse, permitting dynamic evolution. Despite the frequent efforts to promote monolithic, singular views of the Islamic way, a polycentric orientation, effectively embracing openness to institutional diversity, has a lineage in the tradition and contemporary parallels. Sectarian Rhetoric Sectarian rhetoric—while important for the identity and deliberative process within communities—can become incendiary, dangerous, and destabilizing. Hate speech can be considered incitement to violence, which is potentially a threat to public order. This may mean curtailing the open market of ideas, including religious ones by setting bounds on free speech. Societies generally make and revisit collective choices about what the boundaries are on speech, and where it crosses over into incitement or outrageous indecency, for example. The possibility of incitement to violence from sectarian rhetoric gives some support to Al-Naim’s (2008) proposal to disallow invocations of Islam or sharia in public reason. Yet this solution will be unacceptable to those who believe that Islam seeks self-expression at a collective level; the polycentric metanorm permits collective self-expression and “Islamic” claims in particular jurisdictions as being acceptable, as long as they respect the right of others to follow their own interpretations. Not following Al-Naim’s prescription does not mean a complete lack of bounds on how Islam is deployed. The bounds are subject to negotiation in every polity and must be sensitive to the chief vulnerabilities that threaten the order, such as internal predators and external predators. A prominent issue in this regard is the danger of unauthorized violent actions justified through calls to “jihad,” as described below. Unauthorized Violence in Religious Garb The term jihad is polyvalent—for example, it can refer to a spiritual struggle for self-mastery—but one political usage is in appeals for forceful social action. Who can declare a “jihad,” and what happens when the official state jurisdictions and individuals or collective choice units disagree? This remains

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a key challenge to the viability of a polycentric metanorm in an Islamic context. For example, the Ahrar agitators characterized their struggle as a jihad, and used that to motivate vigilantes and win sympathizers from the military and the police. A polycentric order must have the capacity to deter or repel external predators, including the necessary military capacity. One problem is that in a weak state with a strong society, non-state actors may have some recruits for their jihad declarations. Prior to partition, there had been an Ottoman effort to rouse India’s Muslims with declarations of jihad, and an effort by German agents to claim an Islamic identity and call Balochis to jihad. One interpretation is that these instances reflect continuing strategic value to those seeking political change: if successful, an appeal to jihad can be a comparatively cheap way to launch an agitation or insurgency. Afghanistan’s history has seen repeated jihad declarations. A prominent recent example is the public rhetoric justifying the fight against Soviets as a jihad—a rhetorical choice supported by Pakistan, the United States, and various other allies in the anti-Soviet struggle. Recruits and resources passed through Pakistan during the 1980s, and the legacy of that generation of jihad-mobilized fighters has seen more uses of jihad to justify sectarian and de facto quasi-state violence. This is seen in numerous cases in Pakistan, including the emergence of “Type I-Type III alliances,” where official collective choice entities support unofficial actors in return for political purposes. Sectarianism: Foreign, State, and Quasi-State Complicity Nasr (2000: 171) offers a helpful definition of sectarianism in Pakistan and its connotations: Sectarianism in the Pakistani context refers specifically to organized and militant religiopolitical activism, whose specific aim is to safeguard and promote the sociopolitical interest of the particular Muslim sectarian community, Shi’i or Sunni, with which it is associated. Its discourse of power promises empowerment to that community in tandem with greater adherence to Islamic norms in public life, as the religious sources and authorities of that community articulate them. These goals are to be achieved through mobilization of the sectarian identity in question and the marginalization of the rival sectarian community, largely through prolific use of violence. (Nasr, 2000: 171)

To Nasr, sectarianism “can be understood as a form of ‘ethnic’ posturing: mobilization for political ends in lieu of class, ideology, or party affiliation” (Nasr, 2000: 172). Sectarian conflict in Pakistan has gone beyond sporadic doctrinal issues to “political conflict around mobilization of group identity”;

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“militant organizations that champion its cause operate for the most part in the political rather than the religious arena” (Nasr, 2000: 171). In the wake of the Iranian Revolution of 1979, there was an effort by Saudi Arabia to contain Iranian influence. The conflict played out in part on Pakistani soil. In addition, the mobilization of irregular recruits for the Afghan fight against the USSR happened under a broadly Sunni aegis. By providing resources, these factors helped increase sectarian mobilization in Pakistan. Nasr identifies the Sipah-e-Sahaba Pakistan, Pakistan’s Army of the Prophet’s Companions, (a Sunni group, established 1984) and the Tahrik-i Jafaria Pakistan (formed 1979), Pakistan’s Shi’i Movement, with its militant wing Sipah-e-Muhammad (formed in 1991) (Nasr, 2000: 171). In comparison to these groups, the Ahrars were primarily domestic. The SSP and SMP are entangled in regional competition for influence between Iran and Saudi Arabia and have resembled a proxy war (Malik, 2011: 180). As sectarian tensions have escalated in Pakistan, sectarian divisions over political doctrine have been associated with violent vigilantism. There have been systematic targeted killings. The Ahrar agitation (reviewed in Chapter 4), though violent and possibly more widespread, appears tame in comparison. Yet the Ahrar-Ahmaddi conflict sets an early pattern of identity mobilization in place, along with a grave corollary: the complicity of state officials. Repeated allegations are made about the role “agencies” played behind the scenes; there are conspiracy theories about how “agency-wallay” disappeared particular individuals. It appears to be common knowledge that agencies—state intelligence entities, usually covert—fund and support particular militant groups for internal and external purposes, and sometimes in contradictory ways. Sunni militant extremists, supported by the state as part of an effort to create a hardened “Sunni wall” around Iran after the Iranian revolution, have started to create problems. Nasr (2000: 178) quotes a Gramscian metaphor about the snake charmer starting to be devoured by the snake. For Saudi Arabia and Iran, Pakistan’s weakness has allowed it to be a proxy war zone. Mobilizing Sunni identity only mobilized the Shias further, becoming a self-defeating strategy to some elites (Nasr, 2000: 177). Low state capacity in Pakistan may have contributed to state entanglement with sectarian (and nonreligious ethnonationalist) militancy. As a weak state, Pakistan “manipulates social and cultural divisions in order to gain advantage vis-a-vis social forces; a divide and rule strategy compensates for failure to build state capacity” (Nasr, 2000: 174). In the long run, this undermines “social cohesion and hence state interests,” but it offers short-term “room to maneuver,” suggesting that “state actors are principal agents in identity mobilization and conflict in culturally plural societies, and the manner in which politics of identity unfolds in a weak state is a product of the dialectic of state-society relations” (Nasr, 2000: 174). In other words, by exploiting

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rivalries and mobilizing identity groups against each other, the state has been a key force behind rising sectarianism. Particularly since the late 1980s, some de facto quasi-state organizations have started to employ sectarian violence. In particular, criminal networks have become embedded in sectarian politics, producing an “Islamization of criminal activity and criminalization of segments of Islamism in Pakistan” (Nasr, 2000: 180). Drug traffickers find sectarian violence a useful cover; sectarian organizations have in some cases served as fronts from criminal activity, and for sectarian organizations, these pacts “with the devil” have been accepted because of their financial benefits as well as the resources of violence that they offer (Nasr, 2000: 180). This trend has grown as formal state authority, particularly in rural areas, has waned. Strikingly, Pakistan’s founder was himself a mostly nonpracticing member of a sect that is small in numbers when compared to the prevalent Sunnis and Shias in Pakistan. The Ismaili sect, led by the Agha Khan, has relatively heterodox religious doctrines (from the perspective of many Sunnis and Shias in Pakistan), yet remains visibly accepted in the urban centers; in Karachi, one finds shops displaying portraits of the Agha Khan, and the Agha Khan University Hospital is a prominent and reputable health care and educational institution in the city. Sectarian tensions may be influenced by numerous factors such as cross-cutting socialties, social capital, material interdependence, or history of prior conflict, or other suggestions from the substantial literature on ethnic conflict. Verkaaik (2007) suggests that there has been a gradual overlap of ethnic and sectarian identities. Sindhis defined a unique Sindhi Islam based on Sufi traditions. Tribal Pakhtun traditions were reevaluated in Islamic terms, with a focus on full implementation of sharia. Mohajirs have become mostly associated with modernist Islam (Verkaaik, 2007: 88–89). Violent mobilization by identity groups, sometimes amplified by complicity with state or quasi-state actors, poses a severe threat to social stability and the viability of a polycentric order. The Munir Report placed significant emphasis on the problem of state complicity, and the threat to the polity’s fabric, in the case of the Ahrar agitation. Affirming what might be considered a minarchist position (although it has been called secular, a term typically associated with a state-society distinction that does not fit the polycentric approach well, as discussed in Chapters 3 and 4), the Munir Report pointed to the danger of central state endorsement of any particular sectarian doctrine of “Islam,” because it was not a good fit with the heterogeneity of Islamic understandings in the polity. Sectarian mobilization, frequently using takfir (the theological position declaring the other to be infidels, at times a precursor to vigilante violence), has continued apace. To the extent that violent sectarian activity has become a persistent strategy, it threatens the potential for a polycentric order.

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The Polycentric Metanorm and Islamists: The Case of the Jamaat-E-Islami A mixed possible challenge to the polycentric metanorm is what is often stereotyped as the monolithic, monocentric ideological inclinations of some “Islamist” political parties. Islamists derive their political platforms from their construction of “Islam”; in the 1990s, their widely used slogan was “Islam is the solution.” While some non-Islamists accuse Islamists of bearing authoritarian tendencies, it is worth noting that parties irrespective of ideology can be tempted to pursue strategies of dominance. Polycentric orders are potentially vulnerable to such strategies, and accordingly, one question is whether norms of nondominance that promote respect for the integrity and autonomy of diverse collective choice units can prevail. Amid a substantial literature on Islamist parties, the well-known inclusionmoderation hypothesis suggests that ideological absolutism gives way to pragmatic compromises as Islamists participate in electoral politics (e.g., Schwedler, 2006). This suggests that under an established polycentric order with appropriate incentives in place, some Islamists would accept polycentric metanorms as a pragmatic matter. Whether that reshapes political ideology—or promotes reinterpretations of it—is likely to be highly contextually dependent. In Pakistan, a major Islamist entity has been the Jamaat-e-Islami, a “vanguardist” party that seeks a “revolution” leading to an Islamic state, although it commits itself to “constitutional means.” Maulana Maududi, its founder, is often listed among the most influential Islamists of the twentieth century, and his writings and organization inspired ideologically disciplined, dedicated cadres. Maududi was originally affiliated with the Jamiat Ulema-e-Hind (The Group of Indian Islamic Scholars), and came to have an ambiguous relationship with traditional ulama. Maududi had utopian and idealistic tendencies and was impressed by the fascist movements of the 1930s (Nasr, 1994: 13). Maududi believed that Islam was a complete code of life (nizam-e-hayat) applying at the individual and collective level. To be fully realized, the Islamic system requires struggle for Islamic states to be established. According to this view, secularism, which separates religion from politics, is condemnable. Furthermore, if God is the supreme lawgiver, and authority, then the rule of the people is “un-Islamic” (Sikand, 2002: 707). Maududi was not a seminarian, but tried to anchor the JI’s ideology in religious tradition. Initially, the Jamaat-e-Islami expressed opposition to the Muslim League demand for Pakistan, and used the derisive label “na Pakistan” (impure-land, a play on “Pakistan,” which means “pure-land”) (as noted by Munir and Kayani, 1954).

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The JI tried to combine an educational program with a political program (Nasr, 1996). In 1957, Israr Ahmad broke away and formed the ostensibly nonpolitical, education-focused Tanzim-i-Islami. While the TI was similar in ideology to the JI, Israr Ahmad protested the decision to participate in national elections, and sought to keep the original doctrinal focus on revolution through education (Nasr, 1996: 79). Another breakaway leader was Muhammad Tahir-ul-Qadri, who founded the Minhaj-ul-Quran (Path of the Quran, a proselytizing movement) and the Pakistan Awami Tahrik (Pakistan People’s Movement, a political party). Qadri formed these in response to his belief that the JI was caught in a contradiction between its educational and political activities. This inconsistency meant that the Jamaat was less able to attract support and achieve success at the polls (Nasr, 1996: 79). Afsaruddin (2011: 4) argues that “without a historically contextualized narrative about the genesis of political terms and rise of political theory” many assumptions about an “Islamic state” from Islamists such as Maududi tend to be “essentialist” and distorting. Afsaruddin further critiques Maududi’s conceptualization of a “reified Islamic state” which rests on terms such as “divine sovereignty” and “theo-democracy,” as unprecedented coinages, even though the ideology claims to resuscitate Islamic tradition. The JI has not seen its views become hegemonic, but remains contested both in its authenticity with respect to tradition, and in terms of tactical questions regarding the political process and education. The Jamaat Islami started as a revivalist movement, but despite its rhetoric of “revolution,” transformed into a political party that paid official fealty to constitutional legal processes. The JI consciously distanced itself from the Muslim Brotherhood, a fellow traveler organization in the Arab world, in the violent confrontations between Muslim Brotherhood members and the Egyptian regime of Gamal Abdel Nasser. Maududi emphasized that the only path to political power is through constitutional, legal means, declared that unconstitutional means are against sharia, and pushed the party to accept the state’s legitimacy, despite defections; the JI student organization also distanced itself from the Muslim Brotherhood’s alleged methods in Egypt (Nasr, 1996: 73).3 The JI saw “leftists” as rivals. The global contest between the United States and USSR had amplified the clash between “leftists” and “rightists.” Leftist forces grew when Ayub’s government ended, and the PPP government (with socialist leanings) “clamped down” on the Jama’at in 1972, but Maududi “did not allow the Jama’at to be provoked into clandestine activities” (Nasr, 1996: 73). A Jamaat member of parliament was assassinated; Mian Tufail Muhammad (the Jamaat amir) and some other Jamaat leaders and activists were

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jailed and abused (Nasr, 1996: 73). Over this PPP period, Maududi urged the Jamaat to retain its commitment to the constitutional process. But a cycle of violence did emerge, and it “damaged the party’s moral standing” (Nasr, 196: 73). Maududi saw this as a response to government brutality, and continued to insist on peaceful methods even as the Jama’at and especially the Jami’atTalaba (Congregation of Students, the JI’s student affiliate) became more involved in violence (Nasr, 1996: 74). The JI realized that it needed support from the military, the ulama, and the bureaucracy in order to achieve its “Islamic state” goal. In Nasr’s assessment, the JI move from “a politicized religious movement to a religiously conscious political party required a new understanding of the Islamic state” (Nasr, 1996: 82). This may have meant sacrificing “ideological purity” in seeking to capture the state machinery (Grare, 2006: 8). In other words, political ascendancy as a goal overwhelmed ideology, but unlike the choices of some other prominent groups, the JI does not appear to have developed a de facto quasi-state apparatus. The JI supported the 1956 constitution as “Islamic.” It also supported the candidacy of Fatima Jinnah, a woman, for president in the elections under Ayub Khan. The Jamaat participated in the 1970 elections, and was soundly defeated, as the Awami League swept to victory in East Pakistan and the Pakistan Peoples Party emerged as a winner in West Pakistan. The JI rhetoric at the time explained this by saying that the “Islamic spirit” had not taken hold of the people. The JI is alleged to have collaborated with the Pakistan Army in trying to suppress insurgency in East Pakistan. Instead of enhancing the political capacity of the central jurisdiction, PPP leader Z. A. Bhutto “presided over further erosion of state power as politics became mired in agitational politics in a climate of growing Islamic consciousness” (Nasr, 2001: 98). The student affiliate of the JI developed a “psychology of dissent” in which it supported such anti-PPP agitational campaigns as the “Non-Recognition of Bangladesh movement of 1972–74, the anti-Ahmediya controversy of 1974, and the Nizam-I Mustafa (Order of the Prophet) of 1977” (Nasr, 2001: 96). In 1975 a multiparty oppositional group formed against Z. A. Bhutto’s regime. Called the United Democratic Front, it was headed by Mufti Mahmood, the leader of the Jamiat-e-Ulema-e-Islam. Ironically, it was ostensibly secular Z. A. Bhutto whose regime officially declared the Ahmaddis a non-Muslim minority, and made other rule changes seen as efforts to win support from Islamist agitators. When the 1977 elections were announced, the Mufti Mahmood group changed its name to the Pakistan National Alliance, and espoused a platform called the Nizam-e-Mustafa (System of the Chosen One i.e., the Prophet). The JI was the most prominent and

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significant member (Nasr, 2001: 98–99). Eventually, General Zia-ul-Haq led a military coup, under which Z. A. Bhutto was arrested and eventually executed, in a major threat to the integrity of civilian rule in the central state jurisdiction. His Islamist tendencies—and support from a variety of Islamists—suggest that there is a strong vein of monocentric tendencies on the part of Islamists. But this depiction is not complete, even among some of General Zia’s early supporters. The JI had won only six percent of the vote in the 1970 National Assembly elections; in 1990, this figure decreased to three percent; it has been participating since the 1950s. The failure of the JI to obtain widespread support at the polls possibly suggests the rejection of a monocentric or monovocal vanguardist approach to political Islam, but that conclusion is difficult to draw, given other complexities. The JI experience also shows the difficulties in molding a cross-regional Islamist movement in Pakistan, and a cross-regional party in general: parochial allegiances and social fragmentation, combined with alternative collective choice units, and competition, have all played a role. Moreover, the JI’s expressed devotion to legal constitutional processes— despite its initial collaboration with Zia-ul-Haq’s regime—suggests the possibility of pragmatic acceptance of the polycentric metanorm. Some important questions can be raised, such as the previous agitational tactics of the student organization affiliated with the JI. Yet the JI has officially rejected illegal means, vociferously, and has a track record of civic behavior. This is not the case with militant sectarian groups associated with vigilante violence, such as the Sipah-e-Sahaba Pakistan or the Sipah-e-Muhammad Pakistan (Sunni and Shia organizations accused of tit-for-tat killings and other acts of political violence), and it is difficult to place these groups in the same category as the JI. In sum, the Jamaat experienced one repressive military autocrat (Ayub), another military autocrat who coopted some of them (Zia-ul-Haq), and another autocrat (General Musharraf) who pursued “enlightened moderation” and permitted the JI and other groups an unprecedented level of provincial influence in an alliance, the Muttahida Majlis-e-Amal, in North-West Frontier Province (now Khyber Pakhtunkhwa). It has also participated in legally established collective choice processes consistently. Its continued presence as a political party, albeit one that has never dominated the national legislature, suggests that unlike the case of some Arab countries, the JI will not mobilize enough new voters to decisively win an open election. Its mixed record suggests political pragmatism, meaning that the JI would likely not violate the constitutional rules of a polycentric order if the incentives were properly set up, and would be no more likely than other parties to pursue strategies of dominance.

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Military Regimes, the Recent Civilian Period, and the Polycentric Metanorm Military regimes in Pakistan, initiated by coups, tend to be the most monocentric; their devolution schemes have introduced a formal element of local self-governance. Under the Ayub regime, as discussed earlier in this book, the Basic Democracies initiative was allowed for little genuine integrity and autonomy at the local level, serving mainly as a tool of legitimation for Ayub’s Presidentialism. General Zia-ul-Haq’s regime represents the most prominent manifestation of the attempt to combine monocentric governance with an appeal to monolithic Islam. In his public justification for the military coup against ZA Bhutto, Zia-ul-Haq asserted that a vacuum had been created by the tension between the PPP and the PNA, and that political compromise between these factions was impossible to envision. His address concluded with a statement of the role of Islam in Pakistan’s political doctrine (and that became the basis for Zia retaining power despite his promise to hold free and fair elections within three months and then relinquish power): To conclude, I must say that the spirit of Islam demonstrated during the recent movement was commendable. It proves that Pakistan, which was created in the name of Islam, will continue to survive only if it sticks to Islam. That is why I consider the introduction of the Islamic system as an essential prerequisite for the country. (Hamid Khan, 2005: 323)

As Chief Martial Law Administrator, Zia held the Constitution “in abeyance” rather than abrogating it, enacting the Continuation in Force Order, 1958, as well as the Provisional Constitutional Order, 1969, to state that “Pakistan shall, subject to this order and any order made by the President and any regulation made by the Chief Martial Law Administrator (CMLA) be governed as nearly as may be, in accordance with the constitution” (Hamid Khan, 2005: 323). Holding the Constitution in abeyance meant that the CMLA was given unrestrained dictatorial authority. In setting the stage for postponing general elections, Zia declared that the presidential system was consistent with Islam, and that the Islamic Ideology Council would be reconstituted (Hamid Khan, 2005: 325). Using appeals to Islam as a source of legitimacy was in itself not new; it was the centrality and degree to which Zia’s rationales were based on this that were different. Zia’s coup was unusual in his explicit positioning of the political doctrine into a loophole with which he could extend his tenure indefinitely. A more assertive version of “Islamic” doctrine was being propagated, one that Nasr (2001) calls “thoroughgoing” Islamization, as compared to more opportunistic early appeals. As was the case in Malaysia, the state in Pakistan from the 1980s “took over religious education, jurisprudence, various forms of

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administration, taxation, and social services with minimal resistance” (Nasr, 2001: 16). In its monocentric emphasis and monolithic depiction of Islam, and claim to turn Islam into uniform public law (through the Hudood Ordinances and the Federal Shariat Court), the Zia regime’s actions are a significant deviation from the polycentric metanorm. To the degree that the regime has established a pattern of claiming Islamic legitimacy and centralizing authority while undermining the integrity of civilian processes in the central jurisdiction, it represents a major rival to the polycentric metanorm. The next military regime, based on General Musharraf’s coup, is not usually associated with “Islamization,” but made some claims of Islamic legitimacy using an “enlightened moderation” frame (as referred to in Chapter 4). Musharraf undermined the integrity of the central state jurisdiction by reinstating the ability of the executive to dismiss civilian governments, and by trying to pack courts with favorable judiciary. A resistance movement mobilized many lawyers and formed a severe challenge to the Musharraf regime. After Musharraf stepped down in 2008, civilian rule and parliamentary supremacy were reasserted. The reassertion of the central jurisdiction’s integrity, combined with the devolution of legislative subjects to provinces through amendments to the constitution, seems to indicate an affirmation of formal federalism and elements of polycentric order. That elections were held in two periods in a row, 2008 and 2013, resulting in a transfer of power from one political party to another, suggests an important step toward a regular selection process for civilian government at the central state jurisdiction. However, the fact that civilian government leaders in both periods have been heavily mired in allegations of corruption, with the Prime Ministers forced to step down in each case, suggest that the stability of the central state jurisdiction is not yet consolidated. One can hope that accountability for corruption improves integrity, but accountability procedures tend to be politically selective, and are tainted by the appearance of corruption themselves, with the powerful military security apparatus in the background. These problems suggest continuing instability in the central state jurisdiction, which in turn means higher uncertainty about the future, which in turn discourages the longer-term reciprocity on which polycentric order thrives. Thus, a preeminent challenge to the polycentric metanorm in Pakistan has been the dominant role of unelected executive entities, often through martial law, but also in civilian periods. Tying the king’s hands and policing the policemen at the central state level remain a critical constitutional choice challenge. One option is the National Security Council model, where the military leadership gains a veto over collective choice by the central government. This is a drastic compromise but may help prevent the repeated fluctuation between de facto and de jure governments, and the mutual denunciations of

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the others’ legitimacy, which continue to lower the quality of public politics, and feed the instability that makes it difficult for longer-term productive reciprocity to emerge. SUPPORTING SELF-GOVERNING COLLECTIVE CHOICE UNITS It is critical to bear in mind that ultimately the viability of a polycentric order rests on shared understandings that promote self-governance and productive interrelations, which is why it was important to trace the compatibility of a polycentric metanorm with the religio-cultural endowment, national selfconception, and strategic learning from polity failures. Yet there are numerous practical and pragmatic areas beyond these issues in promoting a viable polycentric order. Elinor Ostrom (2005) suggests several areas in which selfgovernance at the local level can be supported. The first is through curricula for local self-government, with tools to build local civic capacity. The second is in providing scientific information that might inform decision-making in local units. The third is in promoting a federation of community associations where units can learn from each other’s experiences and improve practices in ways appropriate to local conditions. Finally, providing low-cost conflict resolution is important. These touch on some general suggestions for the role established jurisdictions can play in supporting polycentric governance. What follows are some brief notes on particular practical examples and issues that relate to the viability of a polycentric metanorm in the Pakistani context. Pakistan has experienced disputes over formal collective choice arenas (East Pakistan vs. Center; Kalat vs. Center), changes in self-organized arenas (wesh abolition in Swat; some viable arrangements that disappeared (canal management)), and attempts to line up Type III units with formal jurisdictional processes, such as the FATA workshop recommendations (described in Chapter 5) and the Orangi Pilot Project (described below). There is a constitutional choice question about where different collective choice arenas extend, and their relative weight with respect to each other. Yet constitutional recognition would “freeze” a particular set, irrespective of marginal changes on the ground, as users shift their activities, and the legally recognized institutions could quickly become defunct, needing another third-party constitutional-level process to recognize the newly relevant collective choice units. In a low-capacity context like Pakistan, the costs of engaging in such repeated acts of recognition may be high, but not necessarily prohibitive. The process requires both the central state entity and self-organized units to pay associated transactions costs. Moreover, it would potentially bring the central

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state entity into a close oversight role, when part of the value of the polycentric order is to permit the proliferation of centers of decision-making with substantial autonomy to realize the governance benefits of user-based governance. One low-cost possibility would be the permissive rule that allows collective choice arenas to work unimpeded while trying to identify “sensors” that would alert other collective choice units and the central governance unit to possible catastrophic system-damaging failures. The comparatively efficient collective choice unit is not necessarily the local and small one. It depends on factors such as the action situation, and the task for which collective action is needed. In a homogenous population under similar ecological context, a uniform single rule can generate economies of scale, lower transactions costs, and other benefits to the public. The reality in most societies, however, is social-ecological diversity. Nevertheless, there are important situations for which the grand jurisdiction is appropriate. For military mobilization against an outside threat, one would usually want the larger jurisdiction, usually the central state. For mobilization in response to a severe natural disaster, the central jurisdiction will likely be an appropriate respondent. Yet a problem arises when such rationales become the basis for undermining other collective choice units in different spheres. In Pakistan, the executive authority at the central state level, often presenting a security threat rationale, has substantially weakened the internal and external integrity of domestic jurisdictions. Security, Foreign Aid, and Integrity of the Central State Jurisdiction National security is a classic collective good, and Bloomington school analysts and others view the central state jurisdiction as a key provider. Not paying sufficient attention to national security risks catastrophic failure, particularly when one is in a tough neighborhood. National security rationales have repeatedly been offered as justifications for the central state executives, incursions on other jurisdictions. Arguably, Pakistan’s foundational orientation toward confederal or federal arrangements was thwarted by centralizing autocratic tendencies. That monocentric impulse has persisted partly due to the narrow winning coalition in the central state jurisdiction, and partly due to national security threats and the rivalry with India. Whether these can be overcome remains questionable. Yet it is the case that a stable modus vivendi with India that decreased external security concerns may boost the prospects for polycentric metanorm-based constitutional rules-in-use in Pakistan. ­Further, Pakistan’s Type I-Type III alliances (particularly the often alleged ties between sectarian militant groups and the deep state) have been rationalized in part with Pakistan’s “strategic depth” external security strategy, which

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involves maintaining on-the-ground influence in Afghanistan to counter the threat from India. Pakistan has been a recipient of large amounts of military aid, which have helped to sustain three martial regimes. Developmentally, this has diverted Pakistan from a fiscal sociological path that would force a more representative government. Another facet to this is the competition between aspirants for office to gain support from outside patrons. In the darkly satirical A Case of Exploding Mangoes, a military officer with secret ambitions to rule the country construes an innocent remark by an American ambassador as incitement to a coup (and as implied American support). This reflects the large perceived role that the United States plays in Pakistan’s internal affairs; in a challenger’s assessment, material backing from the United States would be vital to his prospects for success, and even a small indication is enough to set the officer off on a murderous trajectory. Though fictional, the account highlights a common perception in Pakistan: that outside aid has continued to distort governance and political development in the central state jurisdiction. A military that is dominant, unconstrained in deep state activities, and able to override or subvert collective choice outcomes in different arenas is incompatible with a polycentric order. A procedural question that is critical (and arguably helps explain some of Pakistan’s deviance from the minarchist starting point) is how to constrain the military. Perhaps most distressingly, the military has an incentive to behave as a protection racket, creating facts on the ground that necessitates intervention—such as provoking security crises, and creating conflict-spirals, as cover for a heavyhanded military role. This challenge was briefly reviewed in Chapter 1, and has been a preoccupation of various other studies, including Malik (2011). Military intervention remains a major obstacle to the polycentric metanorm as a constitutional rulein-use, and the tradition of constitutionalism may provide a path for eventual institutionalization of constraints. The 2008 lawyers’ movement in support of the judges deposed by Musharraf’s executive order could be seen as an effort to assert the internal integrity of the central jurisdiction against the incursions of an overreaching executive. The lawyers’ movement also supports the proposition that Pakistan cannot be satisfactorily described as fully “feudal.” The lawyers, typically middle-class urbanites, mobilized across different cities and towns; their ranks included men and women, Punjabis, mohajirs, and other ethnicities. Beyond the concern with an unconstrained executive apparatus, decentralization processes and the role of Type III jurisdictions will likely shape the polycentric metanorm’s viability. These are briefly discussed below.

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Decentralization, Fiscal Issues, and Polycentric Governance Decentralization is a rearrangement process, typically referring to the transfer of fiscal, administrative, or political authority to bodies at levels other than that of the central jurisdiction. Falleti (2005) distinguishes administrative, fiscal, and political decentralization from each other as follows. Administrative decentralization refers to the transfer of social service administration to subnational governments, including such areas as health, education, housing, and social welfare; administrative decentralization does not necessarily include devolution of decision-making authority over these areas. Expenditures are also part of administrative decentralization. Fiscal decentralization refers to policies aiming to increase the fiscal autonomy of subnational governments, potentially including new powers to raise taxes, the delegation of existing tax powers, or increased transfers from the central government. Political decentralization refers to the move of political authority and electoral capacity to subnational levels, featuring constitutional amendments and electoral reforms “designed to open new-or activate existing but dormant or ineffective-spaces for the representation of subnational polities” (Falleti, 2005: 329). Vincent Ostrom found “decentralization” to be of limited value because it is too easy for the central authority to recentralize when something goes wrong, side-stepping the difficult task of devising error-correcting processes in government systems (V. Ostrom, 2012: 67). Polycentricity requires more than decentralization; it requires recognizing other governance structures and compatibilizing or incorporating these so that there are functioning bodies for self-government and self-administration in the country. Those closer to the ground and familiar with local linguistic, ecological, and social circumstances are likely to come up with better policies, and better represent local interests if they are drawing on local resources. The discussion of constitutional choice with respect to polycentric governance in a weak state context would have to consider the problem of sequencing, the general problem of institutional strength, and other aspects considered in an emerging literature (Eaton, 2008). Further, Vincent Ostrom emphasized the role of fiscal equivalence: as far as possible, the specific communities benefiting from particular public services should bear the costs. Otherwise, a perverse incentive arises for groups to simply raid the public treasury for their own interests (V. Ostrom, 2012: 67). The above has relevance for Pakistan, where a major issue for official Type I collective choice jurisdictions is their lack of political capacity, and this is tied to their fiscal incentives. A prominent Pakistani economist and former government official, Ishrat Husain, noted that Pakistan’s federalism

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is “confused” in that provinces and local bodies are weak in capacity and unable to mobilize resources or provide services in comparison to the central government (Husain, 2009). Provinces and districts contain a heavy burden of responsibilities as this is where most interactions between citizens and government take place. The resource-poor provincial and local governments see their capabilities diminish, while the federal government assumes more responsibilities. Only the federal government can raise domestic and external debt; in Husain’s helpful phrasing, “fiscal deficits allow them to obtain more financial resources, but a debt-servicing liability on future tax revenues” (Husain, 2009). The National Finance Commission award system distributes slices from a limited pie, called the divisible pool. A province with a higher deficit can make a stronger claim to a greater share. The perverse consequence is that those provinces who can extract more are reluctant to do so as it weakens their argument for a greater share from the divisible pool. “If the NFC award does not give due weight to those provinces which make a genuine tax effort then why should they make the effort?” (Husain, 2009). Similarly, high spending needs are used to justify claims for a higher NFC award; provinces have an incentive to increase spending accordingly, rather than to maintain fiscal discipline. According to Husain, these problems could be resolved if the federal government transferred the power to raise revenues to the provinces, because the political opposition would hold the incumbent to account for reckless spending. In other words, Husain advocates fiscal decentralization. Delegating control to the provinces would also lead them to exploit natural resources optimally. Presently, Balochis believe that they only receive a small fraction of the royalties from their oil, gas, and minerals. If royalties were granted to the Balochi government, “the rate of exploration and development would be faster as it would be in the interest of the provincial government to remove all hurdles, open up the area and maintain law and order, because the benefits would be internalized” (Husain, 2009). Delegating financial power to the lower levels would remove inefficiencies and overcentralization. There is some evidence of the assertion of a polycentric metanorm in recent developments in Pakistan. The passage of the 2010 18th Amendment Bill abolishing the Concurrent list and significantly empowering the Council on Common Interests suggests such a step. The economist Akbar Zaidi celebrated this as a signal achievement of the new parliamentary regime in Pakistan (Zaidi, 2011). Time will tell how robust these changes are, and whether the center—particularly if there is another coup—will again intrude on the external integrity of provincial units. These are shifts toward greater

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formal authority for Type I entities. The shifts suggest increased external integrity for the subnational jurisdictions (although it is important to note that local body autonomy has suffered as provincial authorities have sought to monopolize authority). These transitions are primarily political, although they may open space for administrative and fiscal decentralization (in terms of the distinctions drawn by Falleti (2005)). Moreover, the political survivalbased calculations of incumbents and challengers in different jurisdictions, unfolding interactions between collective choice units, and enforcement or lack thereof will affect how these changes translate into constitutional rules-in-use. Strategic Issues in Type I Jurisdiction Configurations Dominance by one Type I jurisdictional unit (either the central state jurisdiction, or a dominant province) is a significant threat to the polycentric metanorm. Given the “core ethnic region” problem in the Pakistani ethnofederation, as described in Chapters 2 and 5, a major strategic issue for the viability of the polity is the problem of a dominant Punjab. Perceived Punjabi dominance has been a repeated motif in the grievances of smaller units. One repeated suggestion has been the creation of additional provinces out of Punjab, which makes up about “56% of the population and about 70–80% of the military and civil service positions” (Faruqui, 2005b). The “fragmentation” or “additional states” tactic has been used with mixed results in India, and in Nigeria, where resistance to partition by a provincial leader sparked the Biafran civil war. From a political survival-based perspective, Type I jurisdictional creation and shifts result from strategic choices by elites at different levels. It may be appropriate to say that all other things being equal, political leaders would prefer more autonomy over less. The Pakistani pattern has been devolution to the local level by military governments (as a stratagem against provincial level power), and reversals by state governments, as each level tries to maximize its own political interests. In itself, however, “political survival” does not explain how specific leaders behave without more information about the circumstances that condition their political survival calculations. Adding other strong assumptions can help generate predictive models, but their applicability rests on rigorous empirics of the cases in question. In sum, whether Pakistan as a polity is more likely to survive with additional provinces carved out of Punjab, and the strategic conditions under which this may happen, will likely condition prospects for a polycentric order.

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Managing Type III Collective Choice Arrangements In terms of managing realities of de facto collective choice units, there are three basic options: whether to “compatibilize” by extending official recognition or license, to ignore (and thus permit passively), or to repress. From the perspective of a central state authority seeking a better functioning polycentric order, there is an implicit or explicit cost-benefit analysis for jurisdictional recognition. In compatibilizing informal collective choice units, one risk is penalizing or making more costly the functional collective choice units. A key benefit is the resulting transparency and accountability. An important constraint is the low capacity of the central state, including the very capacity to carry out a cost-benefit analysis. Consequently, some satisficing or other decision-making heuristic or shortcut is likely. The capacity required is likely to be different qualitatively from the capacity usually considered in monocentric understandings of state authority. The nature of this capacity of productive coexistence with other collective choice units is part of an ongoing research inquiry. One question is whether the collective choice entity is behaving in an internally predatory way, or in a way that encourages or invites an external predator. Both those could be considered lower bounds. Another issue is protection against external predators, and the related problem of checking praetorian tendencies. Identifying these challenges when they arise requires sensors, although the term sensor gives the impression of a technical matter, when the question is profoundly political. Nevertheless, without sufficient capacity, identifying and responding to basic challenges among these categories remain problematic. In identifying the comparatively efficient Type III units, an “erosion” approach is probably a good starting metaphor in thinking about recognition of social practices. In deciding where to construct footpaths on a campus, one way is to identify the patches of grass that have been worn down from repeated shortcuts that people have taken. Erosion in this context indicates the actual paths that people find useful, even though they do not match the formal “official” paved paths. When planning a new path, one way is to build following the erosion in a type of “vernacular architecture.” This in effect makes “formal” what has been an informal institution, and helps official direction meet actual practice. The metaphor does not necessarily imply a harmonious underlying reality. Picking some “erosion-based” land acquisitions is going to create winners and losers, and the losers will oppose the shift. In practical terms, there are existing possibilities for recognizing Type III collective choice units. For those that are general purpose and territorially specific, various decentralization possibilities are possible—with Pakistan’s experience under several regimes as a guide to opportunities and pitfalls.

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With regard to specific-function collective choice units, one possibility is to draw on the ordinance around the formation of nongovernmental organizations. Another way that grants official jurisdictional status is the gazetting process. The usage of “gazette” here comes from the British context, where it refers to an official publication of a governmental organization listing appointments and notices. This typically refers to such entities as the Institute of Chartered Accountants of Pakistan, which was officially created by a government ordinance, but gazetting may have the flexibility to recognize Type III collective choice units. One possible factor in deciding whether to compatibilize a jurisdiction is to base it on the jurisdiction’s political capacity—its ability to extract, allocate, and reallocate resources. Successful extractors may be better candidates for compatibilization. This may eventually promote a fiscal sociological path toward good governance, as people seek voice in return for the resources they have surrendered to their jurisdiction. This may be helpful in developing fiscal federalism. Fiscal decentralization may increase domestically sourced revenue, and turning to quasi-state actors might be an effective way to achieve this. Asymmetric federalist arrangements hold promise. Not all jurisdictional managers would want to have all administrative responsibilities. Rather, some might impose an onerous and undesirable burden. Pakistan’s weak federalism has already been asymmetric in the sense that states and provinces and tribal areas have had different rules in their relationship with the center. As Ghai (2002) suggests, not all jurisdictions will be prepared to or willing to accept all tasks that are devolved to them. There must be negotiation and dialogue that devolves appropriate tasks. This may apply particularly well to indigenous collective choice mechanisms, such as the Jirga in FATA, or the equivalent of the aqasal courts in Kyrgistan (traditional elders councils that adjudicate property, torts, and family law). One possible consequence of use of a political capacity criterion is that states with very low political capacity are often described as “failed states.” Maladministration was a rationale for annexing states in the British “doctrine of lapse.” The parallel is uncomfortable for the official narrative of recently independent countries. It reflects the nature of postcolonial states—they inherit and often replicate colonial strategies of control, particularly when the state is created largely from a decolonizing negotiation rather than a mass uprising, as was the case in Pakistan. One must ask whether taking over a “poorly administered” jurisdiction in Pakistan might not also spur an uprising—arguably the roots of contemporary insurgency in Balochistan, and the historical doctrine of lapse contributed to the 1857 rebellion. In general, the potential for political manipulation of decisions about recognizing or repressing collective choice entities remains a threat to the polycentric metanorm, because it suggests alternative constitutional rules-in-use.

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For the British, the princely states were an expedient compromise: they extended British control without extending British administration (Lumby, 1954: 202; cited in Sultan-i-Rome, 2008: 129). This resembles what a very weak state might choose to undertake over its territory. Policing even minimal rules properly requires an appropriately oriented administrative apparatus, but not necessarily the high capacity that is presumed under monocentric thinking. Guaranteeing the right of exit, for example, or preventing internal predators and exploitation, all require a basic degree of capacity. In this context, administrative reform to better suit a polycentric order would be desirable. Under British rule, senior civil servants came into routine contact with citizens, and were posted as district collectors. They had “adequate powers to resolve the problems faced by the citizens”; consequently, “a few thousand British officers were able to exercise the writ of state, administer justice, adjudicate disputes, and deliver essential services to the state” (Husain, June 21, 2009). Husain argues that the 1973 administrative reforms damaged the civil service. The power of federal secretaries was diluted, and decisions were increasingly made by the President and Prime Minister. This meant more pandering to the political leadership, producing overcentralization and personalized decision-making. Civil servants are rewarded for loyalty toward political leaders rather than for competent decisions. They referred decisions to the federal government as a way to protect their career advancement. These observations suggest that some administrative reforms may support the function of polycentric arrangements, but the exact role of the central state apparatus is an area of ongoing research inquiry. Squatters’ Communities as a Micro Case Katchi Abadis (squatter settlements; literally “raw residences”) in Karachi represent a substantial portion of housing, probably accounting for over half the city’s residents. With legal status that is questionable, the residents nevertheless achieve some measure of collective self-governance and service provision. Tasneem Siddiqui, a decorated civil servant makes the case for what can be understood as compatibilization of these Type III collective choice units: The poor people pay for the land, which they purchase from land-grabbers. They pay for the water, which they get from the tankers or through the pipelines—legally or illegally. They pay the electricity man who comes to collect the “bhatta” every evening (if they have illegal connections), and they lay some sort of sewerage system themselves. Now they have a neighborhood watch system to secure their life and property. If the communities are doing all this should we denounce it as illegal and refuse to support it with technological advice and social guidance? (Siddiqui, 2001: 159)

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The regularization of land plots and the recognition of squatters’ rights might be a way that informal institutions can obtain formal recognition. This brings some security in property tenure, and that in turn helps enable improvements in public goods provision. A well-established, comparatively microlevel example of working with the existing Type III collective choice structure of squatter settlements in Karachi is the Orangi Pilot Project. The prominent architect and urban planner Arif Hasan identified and acknowledged the role played by thallawallas, collective choice authority figures who set up and manage builder’s yards: Typically, thallawalas make building components, give advice on building techniques, as well as providing water and credit loans for the embryonic settlements. The thallawalas therefore provide a minimum level of infrastructure required for a new settlement to be built, and the Orangi project worked by concentrating on improving the skills of the thallawalas and sourcing cheaper building materials for them. (Hasan, 2012)

The Orangi Pilot Project went beyond this to working to organize the residents to finance and build their own sewage systems. This relied on local knowledge and the existing collective choice infrastructure, and has received national and international recognition. CONCLUDING NOTE Covenant-like metanorms make it more likely that associational activity includes constitutional-level choice by reflection and design rather than a result only of accident and force. I have argued that an Islamic covenantlike metanorm for constitutional choice has some rationales in the Islamic tradition, and has been part of Pakistan’s development, from its national self-conception to the vibrant self-organized activity found in Pakistan. It is not solely the formal constitutional rules themselves that matter, but also the practices contributing to constitutional rules-in-use, and the pre-constitutional metanorms shaping understandings of appropriateness. Robust constitutional design demands careful consideration of all three—formal constitutionallevel rules and metanorms shaping understandings of appropriateness. As applied in this book, the constitutional level of analysis does not presume to write a constitution, that is, a formal document produced through negotiation among actors in the polity. A constitution produced by an outsider will be irrelevant, or, if implemented, likely produce perverse and unanticipated outcomes, due in part to the dispersion of information about interests, preferences, and context-specific understandings to agents in relevant arenas. A constitution must be firmly grounded in polity actors’ negotiations

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and calculations. A wider approach to the constitutional level of analysis promotes consideration of constitutional rules-in-use along with the formal constitutional document, as well as metanorms and actor choices. This interpretative study has suggested that in the Pakistani context, there is potential for a polycentric metanorm to shape development. Whether polycentric order can prevail in practice—and not fall prey to strategies of dominance or other sources of failure—depends in part on competition with other metanorms, other contextual factors, and the choices of actors in the polity, all of which are ample areas for further inquiry. Whether a polycentric design should be pursued is a normative question that also deserves further attention, and is ultimately to be answered by members of the polity. In my previous book (Malik, 2011), I made the case that formal rules governing the central state jurisdiction were often the products of particular regimes, and they could also influence some aspects of power transitions. Informally, however, it was common knowledge that the military wielded outsize influence, and that the bureaucracy, landlords, business elite, and some religious leaders all had influential roles. There was a widespread perception that deal-making and collusion produced new regimes which were later clothed in formal rules—rules that had often been altered to then better suit the new state of affairs. This is best exemplified by military coups, which have usually ushered in a new “basic law” that typically retains features of the old formal constitution with the addition of a highly empowered executive military leadership, able to promulgate far-reaching ordinances. Over time, however, the military is not able to retain its position, and must widen its support base to ward off challenges. It is in the widening process that openings appear for civilian challengers to military rule; when civilian leaders do come into power, they try to write rules that prevent further military intervention. The military, in the meantime, tries to retain a veto, sometimes exercised through praetorian action. Thus, there is instability of formal constitutional arrangements, driven by powerful actors trying to establish and maintain their ascendancy. At the same time, local associational forms have sometimes been undermined or crowded out. This has been the result of surreptitious as well as overt efforts to develop tactical alliances and pursue influence by extra-local actors, including the agents of the central state (the so-called agency-wallay) and foreign interests (the Saudi-Iranian sponsored proxy clashes between militant Sunni and Shia groups), as well as the disturbing scorched earth tactics of some violent quasi-states (the assassinations of tribal and community leaders in an effort to create a security and leadership vacuum in the tribal areas, and then fill it with the quasi-state organization’s members who are violence specialists). It has also resulted from monocentric development plans, and from the apparently benign provision of transnational and other

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outside resources, and from other social-ecological shifts all of which can disrupt local institutional understandings. Given this backdrop, it is little surprise that questions are publicly raised about the future of Pakistan. One key to a well-functioning polycentric order is to consider what metanorm understandings might promote the external and internal integrity of collective choice units at every level, including that of the central state jurisdiction. In Pakistan, the integrity of collective choice units has been repeatedly violated—justified by an external threat (security issues from the enduring rivalry with India) or an internal threat (the claim of being secessionist, or unIslamic). Repeated violations have created a pattern of instability, undermining the security and predictability on which community associational life depends, and instead spurring the growth of armed militias—a problematic form of collective choice institution because they can easily behave in predatory ways, and will not have much internal integrity, and because they raise the continuing prospect of civil war. Nevertheless, the entrepreneurial spirit supporting associational life appears alive and well. To thrive in a polycentric order, such associational activity should be respected and protected in ways that foster collaborative governance and prevent destructive conflicts between collective choice units—while recognizing that contestation, competition, conflict, and conflict resolution processes can be part of a well-functioning polycentric order. But there is no panacea—no automatic presumption of the superiority of one level or unit of collective choice, or one single blueprint or solution that is prescribed for all circumstances and problems. For example, intense competition over distributional issues around a resource or very wide divergence of views can undermine cooperation and the capacity for self-organization (Carlisle and Gruby, forthcoming). An assertion from Chapter 1 is that despite formal constitutional instability and recurring martial regimes, constitutionalism exists in Pakistan, and that it persists visibly through the repeated and ongoing clashes between elected and unelected collective choice institutions at the central government jurisdictional level. While this constitutionalism has emphasized the formal, legal level, there are nevertheless important indications for its longer-term ability to negotiate constitutional practice. There are repeated distinctions between de facto and de jure, and this sensitivity—driven by experience with “usurpation,” or “countercoups” (depending on the narrative one follows). That suggests possibilities for longer-term legal adaptation that would promote the viability of polycentric order in Pakistan. Yet that legal constitutional dimension cannot succeed without civic virtue, and meaningful communication and deliberation. Vincent Ostrom viewed the debasement of language for political agendas—Newspeak in George Orwell’s memorable label—as a problem for self-governing orders because

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it took away shared meaning, hampered communication, and made it more difficult to translate intent into social practice, undermining democracy. The problem of Newspeak can be considered a highly instrumental version of the social construction of meaning. The question is how to have the least totalizing, most nuanced appreciation of meaning, while retaining the intersubjective understandings on which meaningful civic artisanship depends. In the Islamic context, this means avoiding a Muslim Newspeak, where “sharia” becomes uniform public law, where morality is in the hands of the state rather than the individual or community, and where a culture has become an ideology. Tradition in this context can be considered a set of solutions to an enormous “coordination game” around the social problem of how to talk about things. Newspeak, which undercuts the ability to apprehend and operate within tradition, potentially means that people will have a harder time coordinating their collective arrangements, producing poorer governance outcomes. Avoiding Newspeak requires groundedness in tradition as apt performance, nurturing communities of deliberation, artisanship, and practice; it means building on the Golden Rule for a metaphysics of religious citizenship, being able to consider the interests and perspectives of others, and crowding in religious civic virtue. NOTES 1. “Integrity” is used here in terms of the definition offered by Skelcher (2004), reviewed in Chapter 2; in brief, internal integrity refers to the legitimacy, accountability, and consent of a collective choice unit with respect to its participants, while external integrity refers to the collective choice unit’s autonomy in a specific spatial or policy domain. 2. A view that Verkaaik (2007) rejects. 3. The issue over state legitimacy and political participation mirrors the musharika fis sulta (participation in governmental authority) debates among Islamists in the Arab world in the 1980s and 1990s, and also may support the moderation-inclusion hypothesis, which has received some confirmation (e.g., Schwedler, 2006).

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Index

Note: Page references for figures are italicized. 1956 Constitution of Pakistan, 32, 33– 34, 40, 194, 210–12; and minorities, 191–93; repugnancy clause, 190–91 1962 Presidential Constitution of Pakistan, 32, 218–19 1973 Constitution of Pakistan, 32, 194, 212–13, 224–25 accountability, 54, 165, 239, 241, 253, 285 action arena, 21, 54; in polycentric governance, 20, 163 actor, 7, 21; identifying, 35; political, 14, 30; predatory, 66 adaat, 109–10, 258 ADICO (Attribute, Deontic, aIm, Condition, Or else), 21 Afghanistan, 233; border dispute with, 135; jihad in, 277; on-the-ground influence in, 287–88 Ahmaddi sect, 148, 167–70, 173–74, 182, 184; riots against. See Ahrar crisis;

as scapegoats, 175 Ahrar crisis, 161, 168–74; rationale for, 174–75 akhlaq literature. See Islamic tradition: in sharia autonomist strategies, 263 autonomy, 7, 16, 37, 47, 63, 86, 102, 125, 226; commitment to, 71; externally recognized, 135, 161, 298n1; in a federation, 10, 199; formal, 230; provincial, 207–9, 233–34; reductions in, 212–21; territorial, 75; in a waqf or millet, 111–13 Awami League, 32, 140 Basic Democrats. See decentralization bhatta, 243–45 biraderi trust networks. See type III collective choice unit: and trust networks Bloomington school, 15; and the Objectives Resolution. See Objectives Resolution; polycentricity in, 16–20 British India. See colonial legacy 309

310 Index

caliphate, 143, 184–85 central authority: failure to defend East Pakistan, 221–22; and military, 287–88; postcolonial, 51; predation of, 179–82; and unit power, 71–73 civic orientations, 272–73 civic reason, 121–22 civil war, 221–24 collective action: assessments of, 154; outcomes in a weak state, 64; problems in, 22–23; and veto holders, 138–39 collective choice, 21, 53; and indigenous irrigation water, 250–51; in Islamic framework, 10–11, 105, 265; variations in, 26 collective choice unit, 53–54; and individual rights, 125–26; internal integrity of, 26, 298n1; support for, 286–87. See also jurisdiction: typology; Memon Jamaats; type I collective choice unit; type II collective choice unit; type III collective choice unit colonial legacy, 37, 136–39; in transition, 59–60 common-pool resource, 23–24 compatibilization, 68 confederal arrangement, 56 Constituent Assembly, 32, 38–39, 189, 192–93, 214–16 constitution, need to understand, 65 constitutional analysis, 153 constitutional choice, 12, 13, 21–22, 145–46, 265–66; boundaries of, 72; in Pakistan’s central state, 28–29, 133–34, 168–69. See also colonial legacy;

religious mobilization as a dilemma for, 175–77 constitutional design, 20 constitutional governance, 54, 126–27 constitutional norms, 3, 25; defections from, 3 constructivist school of international relations, 64–65 convergence discourse. See civic reason core ethnic region, 34, 77–78, 209; in East Pakistan, 214 Council of Common Interests, 213 covenant: vs. compact and contract, 96; definition of, 95 CPR. See common-pool resource cultural autonomy, 76–77 cultural endowment. See Islamic tradition: as cultural endowment culture in this book, 2 decentralization, 20, 219–21; under Bhutto’s constitution, 224–25; fiscal issues of, 289–91 deductive theorists assess governance, 66 democracy vs. theocracy. See theocracy vs. democracy devolution, 75, 204–5, 220, 244, 260, 284–85 dia system in Somalia, 262n3 dyarchy in India and Pakistan, 205–11 East and West Pakistan, 33–34, 138, 156, 190, 196, 213–14; representation, 214–16. See also Pakistan Edhi Foundation, 238–40 elite capture, 248–49, 262n4 emergency powers, 211–12 empirical state. See jurisdiction: and political capacity epistemic authority, contemporary problems of, 274–76 ethnic identity and national-building, 270–71.

Index

See also core ethnic region ethnicity, 72–73, 202 ethnofederation, 77–78 FATA. See Federally Administered Tribal Areas federacy, 56, 75 federalism, 55; accommodating ethnic diversity, 77–79; asymmetric, 75; as a confederation, 56; definition of, 202–3; in developing countries, 70–71; identity diversity in, 73–77; in the Objectives Resolution, 10–11; in Pakistan, 209–10; poverty and scarcity vulnerabilities in, 78–79 Federally Administered Tribal Areas, 254–56 feudal authority, 247–49 fiqh, 103–5, 108, 110, 160 fiscal equivalence, 230, 289 foreign aid and political development, 51 foreign attempts to incite jihad, 232–33 formal constitution, 54; and informal institutions, 79 fundamentalism, 114–18 The Golden Rule as a moral resource, 92–93 governance: definition of, 16; and Islam, 5, 158; monocentric, 1; polycentric, 1–2 Government of India Act 1935, 206–7, 212 Hamoodur Rehman Commission, 140– 41, 143–44, 222–23 Hamoodur Rehman Commission’s Report, 27, 39–40, 165, 219–20; on the meaning of martial law, 41

311

Harrison, Selig, on restructuring Pakistan, 6 Hilf ul Fudul, 102 Hobbes, Thomas, on sovereignty, 16, 18 Hudood Ordinances, 34, 160, 194 IAD framework. See Institutional Analysis and Design framework ICAP. See Institute of Chartered Accountants of Pakistan identity diversity. See federalism: identity diversity in indigenous institutions, comparing, 257–59 indigenous knowledge in governance, 61 informal economy, 87–88 informal institutions: and collective choice arrangements, 51; definition of, 80–81; and formal institutions, 79–80, 81–83, 82; identifying, 83–84; in the Latin American context, 84–86; in types I and II jurisdictions, 82–83 Institute of Chartered Accountants of Pakistan, 240–41 institutional analysis, with action arena, 21 Institutional Analysis and Design framework, 15–16 institutional diversity and Islamic symbol, 273–74 institutions: and collective action, 20–23; vs. collective choice units in this book, 53; definitions of, 1, 21, 53; diversity in, 1; type I. See type I collective choice unit; type II. See type II collective choice unit;

312 Index

type III. See type III collective choice unit. See also jurisdiction: typology of investigative approach, 26–28 Iqbal, Allama, 199 Islam: assumption of monocentric design in, 8–10; considering traditions of, 93–94; and constitutional law, 144; and covenant, 94–97; and democratic moral sentiment, 91–93; effect of colonialism on, 116–17; minarchist political, 2, 14; and secularism, 118–28 Islamic democracy, 272 Islamic identity and legitimacy, 268–69 Islamic jurists and rulers, 104–7 Islamic law, diversity in, 106–7 Islamic state, 122–25, 145, 149–58, 183–88; actual and ideal, 151–54; challenges to, 8, 128–30; dhimma in, 127–28 Islamic tradition: as cultural endowment, 14–15; grounding governance in, 271–72; in sharia, 108–10 Islam in Pakistan, 147–49, 284; and constitutional analysis, 153–56. See also metanorms; Pakistan istihsan, 108–9 istihshab, 109 Jamaat-e-Islami, 280–83 jihad: as an invoked symbol, 182–83; unauthorized violence of, 276–77 Jinnah, Muhammad Ali, 29, 31, 37–38, 141–42, 187–88 jirga, 255. See also type III collective choice unit: and conflict management juridical state. See jurisdiction: and political capacity jurisdiction:

integrity of, 229–30; and political capacity, 60–62; type I. See type I collective choice unit; type II. See type II collective choice unit; type III. See type III collective choice unit; typology of, 56–58, 200 Kalat, 231–32 Karachi Development Association, 241–42Khan, Liaquat Ali, 141 Khan, Maulvi Tamizuddin, opposition to governor-general, 43 Khan of Kalat, 11–12 khilafat. See caliphate Lahore Resolution, 5, 139–44, 207–8 Liaquat-Nehru Pact, 189 Local Government Ordinance, 253 Madison, James, on the American political experiment, 30 Majallah. See Ottoman system martial law, 40 maslaha. See Islamic law, diversity in Maududi, Syed, 9, 100, 142–43, 164, 280 media: role in Ahrar crisis, 177–78; suppression of, 218 The Medina compact, 101–2 Memon Jamaats, 236–38 metanorms: and constitutional rules-in-use, 135, 267; definition of, 18, 88; identifying, 144–47. See also polycentric metanorm migrants in India and Pakistan, 208 millet. See Ottoman system minarchism, polycentricity in relation to, 97–99 minarchist polycentricity, 179, 266; and the universal pontifex, 100;

Index

without compulsion, 101 Mirza, Iskander, 40, 143 Mohammad, Ghulam, 39, 43, 143 monocentric governance, 20, 52, 53, 264 MQM. See Muttahida Qaumi Movement Munir Report, 28, 146, 164–67, 196; on state complicity in sectarianism, 279 Musharraf regime, 208, 260, 267, 285 Muslim newspeak, 298 Muttahida Qaumi Movement, 252–54, 256 National Awami Party, 225, 233–34 national self-conception, 269–70; and autonomous units, 140 nation-state, 60–61; and diverse society, 73 natural state, 69 newspeak, 297–98 North-West Frontier Province, 195, 215, 225 Objectives Resolution to the Constitution, 5, 10–11, 148–49, 156–58 one unit, 217 operational choice, 15 ordoliberalism, 4 Ottoman system, 112–14 Pakistan: American influence in, 42; bureaucracy vs. legislature in, 37–42, 131; constitutional development of, 31–35; coups in, 29, 32, 33–34, 191, 234, 267, 283–85; creation of, 5–6, 12, 131, 140, 155; executive vs. legislative control in, 31, 37–42, 47, 131; governance problems in, 3–4, 7, 161–62; incorporating diversity in, 146; intermediaries in, 137;

313

de jure and de facto in, 46; jurisdictional integrity in, 135–36; as a laboratory of practical Islam, 10–14, 141; lack of constitutional stability in, 47; political capacity of, 35–36; power conflicts in, 12, 137–38; Russian threat to, 137; theocracy vs. secularism in, 141–44. See also Islam in PakistanPakistan and imperial heritage, 31 Pakistan and minority rights, 162–65, 189–90 Pakistan central state, 11–12, 28–30, 288 Pakistan judiciary, 35, 42–47, 218–19Pakistan Muslim League, 36, 137–38 Pakistan Peoples Party, 234, 281–82 Pakistan Resolution. See Lahore Resolution panchayat. See type III collective choice unit: and conflict management patronage. See type III collective choice unit: and patronage PML. See Pakistan Muslim League political state: legitimacy of, 62–64; and religion, 195–96 political survival, 26, 29–30, 49n2, 178–79. See also central authority: and unit power polity success, actors’ part in, 65 polycentricity: balancing with monocentricity, 13–14, 30; challenges to, 7, 13; definition of, 16; in developing countries, 52; in history of Pakistan, 6–7; in Islamic context, 10, 118–28; in Ottoman system, 113; and secularism, 185–88; and self-governance, 11, 23–24

314 Index

polycentric metanorm, 19, 21, 88–89, 150, 266–67; challenges to, 285–86; and military regimes, 284–86. See also Islam in Pakistan; Jamaat-eIslami polycentric system, 19–22, 53–58; acknowledging, 125; advantages and potential disadvantages of, 24; dilemmas of, 227; metanorms for. See polycentric metanorms; waqia in, 110–11; in a weak state, 58–65. See also collective choice: and indigenous irrigation water; Memon Jamaats PPP. See Pakistan Peoples Party princely states, 225–27 private vs. public spheres. See public vs. private spheres PRODA. See Public and Representative Offices (Disqualification) Act property rights: interrelation of de facto and de jure, 86–87; Swat indigenous, 249–50 propositions in this book, 24–26Public and Representative Offices (Disqualification) Act, 38, 39 public vs. private spheres, 16–17 quasi-states, 67, 201, 264; comparing, 256–57; strategies of, 251–56 Quranic interpretation, 107–8 Rehman, Mujibur, 140–41 religion vs. law and order, 176–77 religiosity, competition in, 101 religious compliance, 119 repugnancy clause. See 1956 Constitution of Pakistan revenue for provinces, 213 rule, dynamic pursuit vs. static, 158–60

rule of law, 132–34 sectarianism, 277–79 secularism. See Islam: and secularism self-governance, 17–18, 286; waqf in, 111–12. See also Hilf ul Fudul sharia, 103–4; and state law, 123 sharia, meaning of, 159–60 spatial domain. See action arena; jurisdiction statist ideology, 5 sunna, 148 Swat State, 227–29 Taliban, serious challenge of, 12, 256 theocracy vs. democracy, 161–65 Tocqueville, Alexis de: on civic associations, 272; on civic virtue, 94–95; in Democracy in America, 17–18; on Islam harmonizing with democracy, 91, 162 trust networks. See type III collective choice unit: and trust network type I collective choice unit, 202–35; alliances, 259; strategic issues in, 291 type II collective choice unit, 235–36. See also Edhi Foundation; Institute of Chartered Accountants of Pakistan; Karachi Development Association type III collective choice unit, 243–59; and conflict management, 246–47; function of, 65; katchi abadis as example of, 294–95; managing, 292–94; and patronage, 68–71; and trust networks, 67–68, 245–46. See also bhatta universal pontifex, 100 urf, 110 Usif Patel case, 44

Index

waqf. See self-governance: waqf in weak state, 2–3, 125, 278; indicators of, 35–36; and jurisdictional integrity, 135–36. See also polycentric system: in a weak state

315

wesh, 249 West and East Pakistan. See East and West Pakistan West Pakistan as one unit, 217–18 Zia regime, 44–47, 284–85

About the Author

Anas Malik is Associate Professor of Political Science at Xavier University and External Affiliated Faculty at the Ostrom Workshop, Indiana University (Bloomington). He received his PhD in Political Science and Masters in Economics from Indiana University, Bloomington. He is the author of Political Survival in Pakistan: Beyond Ideology (Routledge, 2011) and other publications on the political economy of development.

317