Legal Realism and the Supreme Court of Pakistan

In 1895, the New York Legislature unanimously enacted the Bakeshop Act, which prohibited individuals from working in bakeries for more than ten hours per day or sixty hours per week. Joseph Lochner, owner of a bakery, was fined on a charge that he violated the Act by employing a worker for extended hours. After losing his appeal at the New York Court of Appeal, he took his case to the Supreme Court of the United States. The Supreme Court, by a vote of 5–4, ruled that the law limiting bakers’ working hours violated individual liberty and constituted an illegitimate exercise of state power. With this decision began the Lochner era, in which a right wing majority of judges in the Supreme Court issued several controversial decisions, invalidating federal and state statutes that sought to regulate working conditions of labourers such as fixing of minimum wages.

One of the dissenting judges in the Lockner case was Oliver Wendell Holmes, a famous American Legal Realist. He challenged the age-old notion of law as written rules in the books of law, and argued that law is what the courts say it is. Legal Realists argued that law is an empirically testable phenomenon, the same as the laws of nature, e.g. the law of gravity or the law that water boils at 100 c. Therefore, it must be predictable and certain. In reality, this is not exactly the case. Law, as lawyers and judges understand it, has a human aspect to it. It is not objective and can never be so. Legal Realists argue that if that is the case, then judges should admit that they take into account other things along with the law while deciding disputes. They assert that judges should not pretend to be bound by law in books. Rather they should admit the reality that their behaviour as judges is influenced by extra legal factors. That is why Scandinavian Legal Realists bring psychology into their analysis of law. Prominent legal theorists, such as Austin, Hart, Kelsen, Dworkin, Raz and Finnis, recognise the humanist aspect of law, from the point of view of both the judges as officials and citizens as subject of law.

Human beings unlike machines are not immune to the social environment surrounding them. Therefore, an expectation that legal rules should be like the laws of nature and should be applied mechanically is unrealistic. But equally unrealistic is the view that written laws are irrelevant when courts decide cases. American Legal Realism was a reaction to the arbitrary decisions of the US Supreme Court. It wanted transparent judicial reasoning, rather than the ideological inclination of judges to be the foundation for court decisions.

Judges of the superior courts of Pakistan are well aware of Legal Realism. Former Chief Justice of Pakistan Justice Munir is still despised for handing down a blank cheque to Ayub Khan for the ‘successful’ revolution under Kelsen’s Pure Theory of law. However, our courts have come a long way from 1958 to 2009. The Supreme Court of Pakistan has publicly buried the infamous doctrine of necessity for good. It would be ironic if the same Supreme Court might appear to usurp the legislative powers of the parliament under its pretentious power of interpretation of the Constitution and statutes. It was this Supreme Court which lay down the idea of the balance of powers against the well-established doctrine of the separation of powers. The role of the Supreme Court is vital in order to ensure that this balance is struck, though other stakeholders could not be absolved from their responsibilities. Let that justice should be done, but what an awful thing it would be if it should bring down the heavens. Heavens are based on balance and justice is at the core of this balance. Justice is not justice if it is not impartial and is not based on sound principles.