A false impression prevails in our society that the judiciary is defined by the administrative capabilities of the respective chief justices of the high courts and the Supreme Court, as well as by the judges' ability to apply the law effectively.
In other words, it is commonly believed that the judiciary can only thrive if judges possess exceptional administrative skills to manage the courts efficiently and are adept at applying the law. This, however, is a misconception.
Undoubtedly, sound administration and the correct application of laws are essential components of a justice-based judicial system. However, there is another element which is not only often ignored but also widely undermined: the interpretive project or jurisprudential advancement in a judiciary.
Judges must not only be proficient in applying the law; before application comes interpretation of the law, and interpretation requires a unique set of analytical skills.
Adjudication is not merely a mechanical application of rules codified in statutes to be applied as it is. Rather, adjudication is an interpretive project; the law must evolve through interpretation in response to changing circumstances. Dworkin, in his landmark book, ‘Law’s Empire’, asserts that “Law is an interpretive concept”. Once it is admitted that the law is an interpretive concept, not merely an application, it necessarily follows that judges must possess interpretive competence prior to their appointment to the bench. Otherwise, the law remains static and cannot respond to the changing realities.
Therefore, the legislature will always need to update the law, even to accommodate slight changes in circumstances or situations. So, the most profound skill a judge must possess to adjudicate matters in all circumstances is to understand the concept of interpretation and then application of laws in the light of that interpretation.
As Roscoe Pound aptly noted, “law must be stable and yet it cannot stand still”. Honourable Justice Mansoor Ali Shah of the Supreme Court of Pakistan has also referred to this maxim in one of his judgments. It is only through interpretation that stagnation in the law can be avoided and the standstill dilemma can be overcome.
The judiciary does not solely thrive on the basis of sound administration or procedural regularity by the judges; rather, it thrives on the jurisprudential and interpretive skills of its judges. The more refined these skills are, the better the judiciary can thrive amid the changing circumstances. M A Eisenberg in his book, ‘The Nature of the Common Law’, also says that parliament cannot make rules on every issue. It is the duty of the courts to enrich the supply of rules by way of interpretation that govern social conduct.
Here in Pakistan, we find very few names among the judiciary who possess jurisprudential intellect or interpretive acumen. This trend suggests a looming danger in the near future: adjudication will be reduced to the mere application of laws and interpretation or jurisprudential development will become non-existent. As a result, the legal system will become stagnant and the legislature will need to legislate on every minor issue. This will lead us to over-legislation and complete stagnation. Our superior courts have time and again held that the constitution must be treated as an organic document and it must always be evolving through an expansive approach of interpretation.
It is, therefore, recommended that the Judicial Commission of Pakistan must establish a clear and robust criteria for the appointment of judges to the superior judiciary. Among these, a demonstrable command of legal interpretation and jurisprudential reasoning must be a prerequisite. We can thus ensure the resilience and intellectual vitality of our judiciary and prevent it from approaching the brink of collapse.
The writer is an Islamabad-based lawyer.