Decolonizing the Centralist Mind: Legal Pluralism and the Rule of Law

Abstract

By and large, in the study of the rule of law and in programmatic efforts in the field to develop it, sufficient heed has not been paid to the lessons that legal pluralism has laid bare. These are that in any social field, there is more than one legal system in operation, and state law by no means reigns supreme over all. State law quite often plays a role of course, and in some cases, that role is quite significant. Yet invariably it operates together — in coordination or competition, as the case may be — with other legal systems in the same social field, each of which is “semi-autonomous” in its workings and none of which enjoys any sort of monopoly on the maintenance of order. Indeed, there is much evidence that the role of the state as a global matter is evolving in a fashion that might very well decrease its influence in this complex system of multiple sources of order, rather than the reverse. Until and unless rule of law reformers grow acculturated to these realities, internalize them and incorporate them into their operations, efforts to institute the rule of law are likely to fall well short of expectations.

This involves more than merely understanding how different legal systems, including the state system, operate in the broader social matrix. It even involves more than making the obvious concession to reality that any rule of law program operating in the developing world must, and often does, make; namely, that there are functioning nonstate systems, that they tend to dominate the legal landscape and that they must therefore be a matter of premier concern.

More centrally, it requires a form of decolonization of the mind. Specifically, rule of law policies and programs must come to realize that legal systems that are autonomous of state law will invariably exist, irrespective of what type of rule of law society ultimately emerges. That is to say, if the rule of law is supposed to represent some sort of system where all law is state law — or at least where all legal systems operate in some sort of coordinated harmony in accordance with rules set forth in some foundational state law document, constitution or otherwise — then the rule of law is a fantasy. It knows no existence on this earth, nor is it in the slightest bit clear that such a fantastical state of ordering would at all be salutary.

This Chapter is devoted to identifying more fully the deficiencies associated with the legal centralist assumption in the context of rule of law efforts, and the means by which rule of law as an operational matter could be better deployed once we deacculturate ourselves from that thoroughly unjustified assumption. While the lessons are intended to be broadly universal, the particular reference used to illustrate the point is the Islamic world, and the society I have had the greatest opportunity to study in some depth, that of Shi’i dominated central and southern Iraq.

Keywords: rule of law, legal pluralism, legal centralism, sharia, tribal law