Introduction

I am grateful for and have learned from Rachel Ellett's studies of comparative judicial politics, Martin Krygier's philosophy of ideals in the law, and Sally Engle Merry's ethnographic approaches to international law. I am also humbled by their careful and critical engagement with Law's Fragile State (Massoud Reference Massoud2013) and for pushing me beyond that book to account for practices associated with the rule‐of‐law ideal.

This essay responds to these commentators by taking up Krygier's normative provocations and Ellett's and Merry's calls for continued empirical study of courts and the rule of law. Interpreted collectively, their reflections induce in me a desire to describe, as a preliminary matter, the sociolegal study of the rule of law as an investigation into both a set of ideals (a normative rule‐of‐law inquiry) and a set of practices (an empirical rule‐of‐law inquiry). In so doing I illuminate my unease since the publication of my book—a discomfort that Ellett, Krygier, and Merry seem to share—with contemporary practices associated with the rule‐of‐law ideal (see also Kleinfeld Reference Kleinfeld2012). In this way, ideals in the world matter insofar as they also are grounded in the stories of local institutions and persons promoting or challenging these ideals (Selznick Reference Selznick2008).

The Genesis of Law's Fragile State: Studying Legal Politics in Fragile States

Merry (2016) and Ellett (2016) discuss the need for sociolegal scholars to understand how people, including political elites with resources and skills, put the law to use. It is through such an investigation in a fragile and conflict‐affected state like Sudan that led me to question the moral foundations of the rule of law. That is, living and working in Sudan taught me to see the ideal of the rule of law through an empirically grounded lens, by rooting the rule of law in a specific history, context, and set of practices. My archival research on colonial Sudan and ethnographic observations in contemporary Sudan revealed to me that law's morality may not be inherent and nor should it be taken for granted (see, e.g., Lev Reference Lev, Greenberg, Katz, Oliviero and Wheatley1993; Nietzsche Reference Nietzsche and Ansell‐Pearson2007). Rather, any morality associated with the law (and the rule of law) depends on the goals of the actor—whether a lawyer, judge, state official, aid worker, or human rights activist—who uses legal tools to achieve political, social, or economic goals (Massoud Reference Massoud2013, 214‐15).

As a graduate student in the early 2000s, I came into contact with a decades‐long debate in law and society over whether legal strategies can generate social change (Galanter Reference Galanter1974; Chayes Reference Chayes1976; Glendon Reference Glendon1991; Williams Reference Williams1991; Feeley Reference Feeley1992; McCann Reference McCann1994; Epp Reference Epp1998; Ewick and Silbey Reference Ewick and Silbey1998; Rosenberg 2008). Sociolegal scholars generally agreed that, under the right conditions, legal institutions, litigation, and rights discourse may be powerful agents of change. Constraints must be overcome but, on balance, the language of rights benefits ethnic minorities and other marginalized persons who are able to access legal resources (Williams Reference Williams1991). Litigating a dispute, even unsuccessfully, can also be a symbol powerful enough to convince citizens to join social movements (McCann Reference McCann1994).

While these findings advanced knowledge of law and social change in Western democracies, particularly the United States, I was exposed to little scholarship on rights discourse in non‐Western societies (see, e.g., Englund Reference Englund2004, Reference Englund2006; Merry Reference Merry2006), and none on the power of rights for political or ethnic minorities in countries continually torn apart by cycles of political violence. To address this gap, I traveled to Sudan in 2005 to begin my fieldwork. At the time, Sudan was labeled as one of the world's most “failed states” (Foreign Policy 2016). An historic peace accord was being finalized between the government in Khartoum and a southern Sudanese militia, signaling the end of Africa's longest civil war (lasting nearly a quarter‐century from 1983 until 2005), in which more than 2 million people had died. (Many Sudanese had also fled the country, including my parents, who brought me as a boy to the United States.). But Khartoum's political progress in the mid‐2000s came alongside bloodshed and tragedy in the Darfur region of western Sudan—mass killings that observers labeled the first genocide of the twenty‐first century (see Hagan and Rymond‐Richmond 2008; Medani Reference Medani2011; Fluehr‐Lobban Reference Fluehr‐Lobban2012; Kaiser and Hagan Reference Kaiser and Hagan2015; Savelsberg Reference Savelsberg2015).

What can this harrowing political history, then—and Sudan's legal institutions and actors, their successes and failures—offer to a vast literature in primarily US law and society? To answer this question, I surveyed more than 100 years of Sudan's legal development—from the toils of early colonial and postcolonial state officials (many of whom trained as lawyers) to the struggles of contemporary lawyers, aid workers, and human rights activists.

As Ellett, Merry, and Krygier have discussed, in Sudan over the last century, colonial officials, authoritarian leaders, opposition groups, foreign aid workers, and Sudanese activists have sought to achieve state stability and their political, economic, or social goals. These disparate actors share a common set of legal tools and practices—constructing courts, drafting constitutions, overhauling the legal system's basis (e.g., from common law to civil law to Islamic law), creating and controlling religion and religious law, and encouraging the adoption of international human rights treaties. They seek out these legal changes to realize their own versions of a thick or thin rule‐of‐law ideal or, more simply, as an expedient strategy when facing trouble or chaos. Sometimes, the same persons act in different capacities at different points in their legal or political careers, as judges, ministers, or legal activists (Massoud Reference Massoud2013, 85–118). The case of Sudan exposes—often sharply and painfully for Sudanese citizens—how law, legal tools, and legal ideals matter and how they fail to matter in state political development.

Defining the Law

Krygier and Merry have pushed me to define the law—as the foundation of the rule of law—more clearly. Clarifying this concept of law, and the work that law does, involves treading into a thorny and centuries‐long debate.

For instance, for British legal philosopher John Austin, law was whatever command a sovereign would make (Campbell Reference Campbell1885, 94–96). Austin's twentieth‐century contemporary, H. L. A. Hart, saw law as a set of primary and secondary rules made by human beings, including a fundamental rule of recognition (Hart Reference Hart1961). For Hart's contemporary, US legal philosopher Ronald Dworkin, law was a matter, and a challenge, best left to judicial interpretation (Dworkin Reference Dworkin1986). Lon Fuller, another contemporary of Hart's, described law as having a distinct “internal morality,” drawing from natural law and the high‐order purposes of “doing justice, settling disputes, maintaining public order, and enhancing prosperity” (Fuller Reference Fuller1964; see also Selznick Reference Selznick, Witteveen and van der Burg1999, 9, as cited in Krygier Reference Krygier and Cane2010, 116). In other words, law is not merely “inert matter,” it is a “purposeful activity” guiding institutions that have an integrity of their own (Krygier Reference Krygier and Cane2010; see also Winston Reference Winston, Witteveen and van der Burg1999). Continental legal philosopher and legal positivist Hans Kelsen called law, simply, a “specific social means, not an end” (Kelsen Reference Kelsen1949, 20; see also Green Reference Green and Cane2010, 169).

While these authors disagree on the concept of law, they agree that it creates and is an intimate part of “an arena of social struggle” (Blumenthal Reference Blumenthal2006; as cited in Gordon Reference Gordon2012, 209). This social struggle—and the related philosophical struggle to define law—exists in part because law is often “obscured by a haze of mythology” centered around uncritical enthusiasm for legal solutions, like constitutionalism, to the state's ills (Lev Reference Lev, Greenberg, Katz, Oliviero and Wheatley1993, 139). That is, wherever law is found, so too is conflict found (see, e.g., Tamanaha Reference Tamanaha2006). As Ellett writes in this symposium, “law is part of the political struggle, not [merely] a rational bureaucratic edifice against political disorder and palace politics” (Ellett 2016, 472). The anthropologist Clifford Geertz similarly embraces the social construction of law, characterizing law as a work of imagination (Geertz Reference Geertz and Geertz1983; as cited in Munger Reference Munger2010, 95). The awareness of this intimate relationship between law, conflict, and imagination brings us closer to understanding legal politics—how people use and promote various technologies of law (legal texts, doctrines, arrangements, and resources) to achieve political, social, or economic objectives (Massoud Reference Massoud2013, 24–27).

The Contingent Nature of Legal Politics and the Rule of Law

Krygier argues that when robust in its form and function, the rule of law is an ideal incompatible with any arbitrary exercise of state power. He admonishes me to remember this normative good associated with the rule of law, a good in which even the eminent Marxist historian E. P. Thompson believed.

But, taken together, the essays in this symposium reflect an uneasiness and ambivalence about locating law's power and the rule of law's authority. These suspicions may arise from the study of Sudanese and comparative politics. The ambivalence may also come from an awareness that democratic governments do not always behave democratically—by denying human rights or challenging aspects of the rule of law (Merry 2006; Mattei and Nader Reference Mattei and Nader2008), or that autocratic governments do not always behave autocratically—by promoting thin conceptions of the rule of law (Meierhenrich Reference Meierhenrich2008). Lawyers and their legal tools help governments traverse the political spectra between democracy and autocracy, peace and violence, and human rights and human wrongs (Abel and Lewis Reference Abel and Lewis1996; Dezalay and Garth Reference Dezalay and Garth2010; Massoud Reference Massoud, Halliday, Karpik and Feeley2012). This reality makes the rule‐of‐law ideal tricky to place in good governance schemes, in international public policy, or on a scale that measures “good” states versus “bad” states.

The unease in this symposium is hardly new, nor is it even brazen. But it cuts against some cherished beliefs in the rule of law. Building on Plato, Kelsen, and Hart, the foundations of the rule‐of‐law ideal—laws and legal institutions themselves—have great instrumental value and no intrinsic, moral, or immanent value (Kelsen Reference Kelsen1949; Plato 1960; Hart Reference Hart1961). Why? Limiting arbitrary power and promoting injustice are not always mutually exclusive acts. That is to say, imperial objectives and ideals may be injected even into the rule‐of‐law ideal—as British colonial officials did in Sudan and elsewhere (see Massoud Reference Massoud2013, 44–84)—and it is possible to limit the arbitrary exercise of power while promoting injustices against individual persons or groups within the context of rule‐of‐law institutions like courts and prisons (see, e.g., Cover Reference Cover1986).

There is a tendency in legal scholarship and practice to venerate the rule of law and to exalt those who fight for it. And why not? Aside from the politically power hungry, few would disagree with the general maxim that state power ought not be arbitrary and collective freedoms and rights ought to be promoted. But, like any ideal, the rule of law is an ideal that appears in context; it is a contingent feature of domestic or international politics (see, e.g., Munger Reference Munger2015).

This contingent nature of the rule of law is illustrated in an important example from modern Sudanese history. Chief Justice Babiker Awadalla in 1967 resigned from the Sudan Supreme Court after Parliament called an important Court decision against the majority party an “advisory opinion” that it refused to follow (Massoud Reference Massoud, Halliday, Karpik and Feeley2012, 201–02). Awadalla, who began his training as a lower court judge under the British colonial administration, labeled Parliament's refusal to abide by the Supreme Court ruling as an affront to the rule of law, in a widely distributed letter to the people of Sudan (Khalid Reference Khalid1990; see also Massoud Reference Massoud, Halliday, Karpik and Feeley2012). Awadalla's resignation made him a martyr for the rule‐of‐law ideal and an overnight national political sensation.

Two years later in 1969, however, Awadalla joined a military coup and helped to overthrow the elected government in which he had served as Chief Justice. Four years later, by 1973, Awadalla—by this time appointed Sudan's Vice President by Sudan's military ruler, Jafaar Nimeiri—overhauled the basis of Sudan's legal system from common law to civil law, thus taking a step toward fulfilling the pan‐Arab political goals he shared with Egyptian President Nasser to annex Sudan to Egypt, a civil law country (Massoud Reference Massoud2013, 104–10). While the rule‐of‐law ideal is not unfamiliar to civil law, Awadalla's rapid and political overhaul signaled a critical point in the disintegration of Sudan's burgeoning postcolonial legal system. One hand venerates the rule‐of‐law ideal and, seizing political opportunity, the other destroys it.

The rule‐of‐law ideal certainly is a basis for criticizing Awadalla's flip‐flopping between support for and demolition of the rule‐of‐law ideal in Sudan. But his behavior reveals neither that the rule of law is, on the one hand, an excuse for power nor, on the other hand, that it is a good in itself (Thompson Reference Thompson1975). Awadalla's reverses are a reminder of law's alluring power and that the rule‐of‐law ideal may be only as distinguished as those who fight for it (Silverstein Reference Silverstein2009; see also Comaroff and Comaroff Reference Comaroff and Comaroff1997). We may learn about the rule‐of‐law ideal, then, in those admirable moments when political leaders or activists struggle for it as well as in those lamentable moments when those same persons succumb to more tempting desires. The constellation of practices associated with the rule of law, then, may be as broken, inconsistent, and discordant as each individual person may be (Nouwen Reference Nouwen1979; Hernandez 2006).

All this is to reflect, ultimately, on the rule of law as a construct of desire. But thoughts and desires, however clear or compelling to the mind, are not easily imported or neatly fit into reality. The models must be made real by humans who are themselves imperfect, a point emphasized by legal philosophers and legal historians alike (Hay Reference Hay, Hay, Linebaugh, Rule, Thompson and Winslow1975; Thompson Reference Thompson1975; Horwitz Reference Horwitz1977; Levinson and Balkin Reference Levinson and Balkin2011). Krygier notes these difficulties in achieving the rule‐of‐law ideal in domestic settings when he writes pointedly: “You try instituting useful and sustained changes, likely to hit powerful interests, in societies presently or recently wracked and rocked by despots, war, poverty, pestilence, ethnic and religious divisions, and often perennially weak institutions” (Krygier Reference Krygier2016, 483).

Studying Rule‐of‐Law Practices

The normative question considered above, of whether and how the rule‐of‐law is an ideal worth pursuing, begs the social and historical question of how the rule of law has already been pursued—the empirical investigation that Ellett and Merry encourage. That is, what does the rule of law look like, and how has it changed, while it is pursued in action rather than merely in thought? And to what extent does promoting legal solutions to social, economic, or political problems ultimately refashion the rule‐of‐law ideal?

To address these questions, this section offers an alternative reading of the rule of law as an empirical concern of social science and history, rather than the normative enterprise of legal philosophy. To do so, this section explains how the rule of law may be investigated as an empirical matter—focusing on people, places, and the past—and the panoply of findings that may emerge from studying the rule of law through this interdisciplinary, historical, and empirical lens. This endeavor does not abandon hope in the rule of law nor does it set out to contradict the claim that the rule of law is “worth a great deal” (Krygier Reference Krygier and Cane2010, 133). Quite the contrary, studying lived experiences privileges people's stories of legal struggle and those data that illuminate the rule‐of‐law ideal in context. Here, I echo Ellett's “imperative for multidisciplinary, embedded analysis of” legal politics and Merry's admonishment that the rule of law “varies with the political system in which it is embedded” (Ellett 2016, 476; Merry 2016, 465).

Investigating the rule of law as a set of social and legal practices in context allows scholars to understand the political, social, and economic arrangements coextensive with the pursuit of the rule‐of‐law ideal. It also allows scholars to study, using the tools of history and social science, the people behind the ideal, how institutions matter in their work, and the obstacles they face (Nonet and Selznick [Reference Nonet and Selznick2001] 2001). In other words, a critical and empirical engagement with the rule of law may refine and paradoxically strengthen our attention to the ideal itself.

As Krygier writes in this symposium, the rule of law has brought about a “hugely fashionable” set of international and transnational practices; indeed, “international development agencies would be lost for words without it … billions of dollars are spent on it, [and] thousands of intelligent, committed, often brave people are devoted to it” (Krygier Reference Krygier2016, 483). What are these practices that promote the rule of law? The strategies are designed purposefully, as Ellett suggests, such “that more rules, regulations, legal personnel, and courts will be the magic formula in protecting the free market and building and maintaining the liberal democratic state” (Ellett Reference Ellett2016, 471).

How might one investigate the rule of law as an empirical question, then, to bring us toward the deeper ethnography that Merry solicits and the concentration on institutions like courts that Ellett seeks? As with any empirical study, the approach begins with a research question or problem, often located in a particular context or contexts. These questions are as diverse as human experiences are. Consider, for instance, a few of the concerns that have shaped my own awareness of law's power in diverse political contexts: How do minority‐rights activists create social change in places where they are not able to call upon civil rights law (Chua Reference Chua2014)? Why would an authoritarian regime in Egypt empower its courts with independence (Moustafa Reference Moustafa2007)? How do human resource managers construct the experience of antidiscrimination legislation in employment contexts in the United States (Edelman et al. Reference Edelman, Lauren, Howard S. and John1996)? Why would a dominant state in China allow impact litigation against polluters (Stern Reference Stern2013)? How do concepts of human rights take shape in the countries in the Global South struggling with extreme poverty (Englund Reference Englund2006; Mutua Reference Mutua2008)?

These questions, while not entirely focused on the rule of law, impact our knowledge of ideals by adopting a methodological orientation focused on building social theory and improving law and public policy (Feeley Reference Feeley2010; Gómez Reference Gómez2010; Obasogie Reference Obasogie2014). A related approach now being labeled “the new legal realism” may be helpful for future efforts in this arena. This emerging paradigm for the sociolegal study of law emphasizes not legal doctrine or legal text but the “empirical study of people's lived experiences of law, politics, and power” (Massoud Reference Massoud, Klug and Merry2016, 97; Klug and Merry Reference Klug and Merry2016; Mertz, Macaulay, and Mitchell Reference Mertz, Macaulay and Mitchell2016; see also Moore 1978; Engel Reference Engel1984; Nader Reference Nader2002). How, then, might one adopt such a locally embedded approach to the rule of law? It means, to start, investigating law's interactions with people, places, and the past.

Conclusion: Strengthening and Disenchanting the Rule of Law

As ideals and as practices, the rule of law constitutes the legal field in which sociolegal scholars make sense of law's power, beauty, and terror. I learned over the last decade to see law as an inert tool, neither good nor bad, neither strong nor weak, on its own, and to situate the rule‐of‐law ideal in specific histories, contexts, and sets of legal practices. My hope is that the reflections in this symposium influence scholars and practitioners to continue to debate the inherent morality of law. In my view, the moral qualities associated with law's power—and the rule of law's claims to authority—in authoritarian regimes, as in democratic countries, reflect the goals (benign or otherwise) of the actor who creates or uses legal tools, strategies, and ideals. Ultimately, this endeavor may involve questioning the meaning of the rule of law and how its meaning is embedded. These issues remain actively under development, including, for me, through ongoing research on the power of Islamic law in society (see, e.g., Massoud and Moore Reference Massoud and Moore2015).

Just as a principled understanding of the rule of law helps us understand our values, our hopes, and what we would fight for, an empirical investigation into the rule of law helps us understand what challenges we might face when we join that struggle. Both of these—principles and data—are ultimately essential for a richer understanding of the rule of law's power. Studying legal politics among key actors in a place like Sudan over the longue durée is as much an attempt to explain the practice of the rule of law in conflict zones as it is to understand, comparatively, the practice of the rule of law in more stable democratic societies. The rule of law is not perfect in either place, but it is more or less robust. Disenchanting the rule of law in both sets of contexts also strengthens the collective pursuit of justice—itself a messy business, and studying it perhaps even messier.