Haider Ala Hamoudi (Pittsburgh), a friend of Juris
Diversitas, has posted his ‘Decolonizing the Centralist Mind: Legal Pluralismand the Rule of Law’ on SSRN.
The abstract reads:
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.
The paper will appear in The International
Rule Of Law Movement: A Crisis Of Legitimacy And The Way Forward (Harvard
University Press 2014 Forthcoming).
Hamoudi is also author of Islamic Law in Our Times, a blog.
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