Decolonizing the Rule of Law

COMMENT Prof. Dr Haider Hamoudi 16 July 2021

A few years ago, in a book on the crisis of legitimacy facing the international rule of law movement,  I wrote a chapter on the importance of decolonizing the mind when approaching heavily loaded phraseology such as the “rule of law.”  Then and now, I have been frustrated by enduring colonialist assumptions of legal centralism that dominate the rule of law and human rights fields across the globe.  Pursuant to these assumptions, law only truly exists as a product of the modern, Westphalian nation-state, and only state tribunals are capable of dispensing legitimate legal decisions.  To the extent that there are other tribunals purporting to enforce other rules, they must either be exterminated, or subordinated to the state’s overwhelming authority, permitted to operate only within rules established by the state and supervised by the state’s tribunals.  I submit that this remains the going wisdom among the so-called progressives who dominate human rights and rule of law discourse across the globe, from the giant international human rights organizations to the major national and international funders of human rights to United Nations instrumentalities themselves.  Even to suggest an alternative is to invite accusations of capitulation to, if not outright sympathy for, qadi justice capriciousness (to borrow Weber’s term) and unspeakable barbarity, where primitive, cruel, and irrational men order the most monstrous of punishments against society’s most vulnerable elements—women, religious and sexual minorities, the underclass—with impunity.

Towards a More Pluralistic Conception of Rule of Law

Yet one need not romanticize customary legal practices to recognize the glaringly obvious colonialist assumptions at work.  “Rule of law” thus means “rule of state law”— the “state” of course being the modern, Westphalian, colonially constructed nation state. In these same geographic contexts, it is also difficult to deny, at least as a general matter, that the state has been nothing short of a catastrophe in establishing any sort of recognizable form of justice for the citizens it purports to serve.   How precisely it serves anyone any good at all to subject customary tribunals applying customary rules and norms to this sort of complete disaster of a governance structure is baffling to me.  The more likely result of this sort of forced centralization of power—corruption, misuse and abuse of power, and the destruction, to devastating effect, of alternative and potentially competing social and civic institutions—is precisely what has occurred.

The problem, to my mind, is not that the messianic proponents of the global “rule of law” movement fail to see this—again, it is rather undeniable—but that the solution never seems to involve the potential reallocation of power away from the state and towards customary loci.  Instead, the Sisyphean effort is to reform the colonialist construct while seeking to ensure that all power remains with it. With respect, there are other ways to deliver justice.

Rule of Law Beyond the State – The Role of Religious and Customary Institutions

Most of my work has concerned the Islamic world, where tribes continue to practice customary norms, and elements of shari’apervade the social landscape, whether or not connected directly to the state or its instrumentalities.  Indeed, Islam has a long history of pluralist governance, with pluralist law making institutions in the form of different schools of jurisprudence, pluralist court structures, and even pluralist executive authorities seeming to coexist for long periods of time.  Again, my goal has hardly been to romanticize the past, much less to call for the entire abolishment of the state and reinstitution of a premodern caliphate.  It is merely to recognize that pluralism is with us, that it has always been with us, and, given the rather sad track record of the modern colonialist state, that embracing this fact might not be such a bad thing.   

It seems to me that the same ideas may well be applied in the African context.  Beyond the important role that Islam might play in the form of the establishment of alternative structures, customary norms and customary institutions play an even larger role on the African continent than they do in the Middle East.  The country of Namibia along has 49 forms of traditional authority.  In Ethiopia, where there is a general preference for tribal justice, there are 62 separate tribal groups with their own forms of authority.  Uganda has many of the same characteristics.  It is fair, in my view, to examine these various structures critically, to assess where they might be operating effectively, where they might evince shortcomings, and to suggest how best to allocate power between  them and other existing institutions, including the state, which despite its many flaws no doubt has a role to play.  What seems to me unfathomable, and indefensible, is to insist on a demonstrably failed governance formulation that conceives of a social order in which the state, the most obvious product of the colonialist era in these societies, reigns supreme, and all other forms of justice are subordinated to its overweening authority.   To dispense with the indefensible and conceptualize an alternative, we need to decolonize our minds. 

Prof. Dr. Haider Hamoudi is Vice Dean of the University of Pittsburgh School of Law. His field of research is focused on Middle Eastern and Islamic Law.