European colonial powers typically introduced their own rule‐of‐law systems to the places they colonized, layering a new legal order on top of the already existing systems of law. Was this the gift of civilization and order to peoples racked with violence, as many of the colonial powers argued? Was it a means of conquest and resource extraction, what Mattei and Nader refer to as plunder (Reference Mattei and Laura2008)? Or was it something in between? This question is of particular significance today, as development agencies, private donors, and international financial organizations increasingly emphasize the importance of developing the rule of law as part of the development agenda. Yet, this is proving a difficult if not impossible task. The historical experience of colonial rule‐of‐law schemes offers important insights for the present moment. British and even US colonialism succeeded to some extent in introducing the rule of law, yet the consequences were often tragic.
Mark Massoud's book sheds important light on this complicated yet critical issue. His historical account of the impact of colonial rule‐of‐law systems, in conjunction with postcolonial political changes, suggests that, in a limited way, the British succeeded in establishing a rule of law during the colonial era, but that this mechanism was used in very different and often antidemocratic ways in later periods. Clearly, the rule of law is a set of techniques that can be mobilized in a variety of ways by whoever has the power to use them. As Martin Krygier points out in his essay in this symposium, there are competing and contradictory theoretical positions about the impact of the rule of law on justice.
In the face of contemporary enthusiasm for the rule of law as an antidote to violence and a means to create democracy, Massoud shows that the impact of the rule of law depends greatly on the social, cultural, and historical conditions under which it operates. His study of the rule of law in Sudan provides valuable insight into what the rule of law can and cannot accomplish and under what conditions. As a sociolegal scholar, Massoud anchors his analysis of law and legal institutions within the social and political context of Sudan and its complicated colonial history. While recognizing that law can and does constrain power, Massoud's careful study of the historical development and contemporary use of law in Sudan shows that here it is largely a political tool available to those able to use it. Fragile states such as Sudan do not lack law; instead, law is everywhere, but put to use by those with the resources and skills to do so. Although this may occasionally be the poor, to a large extent those mobilizing the law are the elites, including authoritarian elites. As Massoud says, the rule of law does not inevitably produce democracy or peace. It can also buttress power in authoritarian states and confer legitimacy on authoritarian governments.
The colonial experience is clearly basic to the way rule of law works in the present. In the case of Sudan, Massoud shows that there were significant shifts in rule of law between 1898, when the British and Egyptians invaded the region and established colonial control, and 2011, when South Sudan seceded after a protracted civil war. This is an historical period marked by colonialism, authoritarian rule, civil war, and a mere ten years of democratic leadership. Massoud begins his book by quoting a well‐respected Sudanese lawyer who tells him, poignantly, that a book about law in the Sudan would be “a very short one” (2013, 1). Instead, Massoud finds that law was central to the British colonial project and to the course of authoritarian rule in the independence period. The book examines how colonial, authoritarian, and humanitarian actors pursue what he calls “legal politics” over this period, focusing on colonial officials, British‐trained Sudanese lawyers, postindependence rulers, and international human rights and development workers. All these actors mobilize legal tools, often to deal with the legacies of civil war and state fragility.
The use of law, or legal politics, changed during three historical phases. The first, the colonial era, stretches from 1898 until 1956. During this period, the British colonial authority developed a cadre of Sudanese lawyers, educated in Britain and following British law and legal practice, to maintain stability and control of the population. The second period is that of Sudanese independence, which runs from 1956 to the onset of Omar Hassan Al Bashir's rule in 1989. In the third period, lasting from 1989 until 2011, Bashir developed a relatively stable legal order based on Islamic law, building up the legal system and training many new lawyers. During this third period, a variety of international organizations and nonstate actors sought to promote legal development, human rights, and the rule of law. In each period, struggles over which law system was to prevail were fundamental to creating the nation. In the postindependence struggle over whether Sudan was to be part of Egypt or independent, which law it would adopt was a central issue. Subsequent nation‐building efforts turned to Islamic law and the use of hudud punishments to buttress an Islamic national identity. Thus, the law served to define the nation.
Massoud's study underscores the importance of the nature of the legal system for defining the nation. Indeed, the postcolonial efforts to create unitary legal systems out of the patchwork of colonial law, customary law, and international law show the importance of law to projects of nation creation and nation building. Such strategies also enhance the legitimacy of a new country in the eyes of other countries. Since the ultimate guarantee of sovereignty is recognition of that sovereignty by powerful countries, creating a country with a unified legal system is an important step. For example, my research on law and colonialism in nineteenth‐century Hawai‘i (Merry Reference Merry2000) showed how elites, both Hawaiian and foreigners, sought to create a rule‐of‐law system that would signal the creation of a sovereign state and discourage colonial takeovers. By the 1840s, Hawai‘i had a declaration of rights, a constitution, and a body of laws. Indeed, the strategy of retaining sovereignty through creating the rule of law was fairly successful until the 1890s when the United States, in conjunction with US residents of the islands, engineered a political takeover and, in 1898, annexed the country. Thus, the creation of the rule of law protected Hawaiian sovereignty in the short run, but could not stand up to the imperialist demands for a coaling station and the expansion of US power in the Pacific in the late nineteenth century.
The situation in Sudan took a different path from that of Hawai'i, but in its own way shows the strategic advantage of adhering to a rule‐of‐law model. In the Sudan, establishing the rule of law facilitated the claim to sovereign status and discouraged external intervention, but it also built legitimacy for authoritarian rule and failed to produce either democracy or peace. In many ways, Massoud's book could be called “The Tragedy of the Rule of Law in Sudan.” It challenges both the idea that Sudan had no law, and that the rule of law produced justice and democracy. Instead, it shows how law operates in a fragile state during both its colonial and postcolonial periods. During the colonial period, the rule of law was used to legitimate the colonial regime, even in the face of political chaos. Like other colonial powers, the British were reluctant to expend scarce resources on administrative costs such as courts and legal services. During the postcolonial era of authoritarian rule, which runs from independence through the present, rule‐of‐law claims were again deployed to legitimate the state, increasingly building on the preexisting commitments to Islam and Islamic law. Massoud provides a fascinating account of how Bashir seized and consolidated power after 1989 by targeting law, bringing it under his control by vastly expanding the number of lawyers and training them in Arabic in a regime‐approved version of Islamic law rather than in English and in the common law. Thus, Bashir tamed the law so that it was not opposed to the state but a part of it. At the same time, he expanded its capacity to control ordinary people through the proliferation of lawyers and courts, especially criminal courts.
The international human rights system has also not succeeded in undermining this authoritarian legal regime. International humanitarian and human rights organizations brought ideas of human rights to Sudan at the same time as development agencies adopted rights‐based development. Yet Massoud casts doubt on the effect of this mobilization of human rights and the dominant paradigm of rights‐based development. He argues that authoritarian governments can use the rights framework to support groups sympathetic to them and to restrain others, thus producing deeper splits in civil society (2013, 17). Even though human rights–based strategies promise to benefit the poor, Massoud shows that they fail to do so if the poor lack the resources and skills to exercise those rights; rights are meaningless unless they are enforced. He concludes that the effect of human rights training in this war‐torn, fragile, authoritarian state is quite limited. It may encourage some people to turn to the state, while for others, it is irrelevant. This observation is worth pondering since the promotion of human rights is an important dimension of promoting the rule of law. Nonetheless, the British colonial experience in the Sudan does have implications for the human rights project. The British invested in training lawyers, building legal institutions, and connecting these institutions and lawyers into a global British colonial network. To some extent, they succeeded in producing an educated legal elite. If human rights are to take hold as did British law, their advocates might need to follow a similar path.
Massoud takes a somewhat Marxist view of law as a system closely linked to power, but mixes this perspective with legal realism and sociolegal theory. He examines how law works in practice: how it is used, by whom, and with what effects. Law is a tool available to those who can use it but it also has an emancipatory potential, a “tool simultaneously of political oppression and redemption” (2013, 88). He observes that “[i]n unstable political contexts, legal solutions are instruments of both oppression and liberation” (2013, 17). His understanding of law as a political resource parallels the way I see the power of quantification and indicators: both are technologies that have the capacity to empower those able to harness them (Merry Reference Merry2016). Of course, it is experts with skills, resources, and political power who are best positioned to harness both the law and the production of quantitative knowledge. However, the less powerful still have the potential to harness these tools.
Massoud focuses on the use of law to maintain power, whether British colonial power or that of an authoritarian state. It is a form of politics rather than a system outside of politics. “At root, law cannot be separated from the political practices that shape it” (2013, 15). Yet, law is never just an instrument, a tool available to political elites to use as they wish. It has its own rules, actors, and practices, along with the need to maintain some semblance of justice if it is to appear legitimate. As E.P. Thompson argued, law must maintain some sense of justice and fairness in order to retain its legitimacy (1975). Law is open to manipulation, but within limits. Where these limits are and when the features of the legal system itself obstruct its mobilization for political purposes is the most interesting aspect of the way law exercises power.
Massoud recognizes this complexity of law. He sees it not simply as a mode of power but also as a system with some constraints and internal checks that open possibilities for use by the less powerful. However, given the historical sweep of the project, he is not able to explore the limits of legal politics at particular moments or to identify specific conditions when the appropriation of law by political elites fails or is obstructed. Such an analysis would examine particular moments of legal appropriation to see where they succeeded and where they failed. It would focus more on litigants, lawyers, and judges than on the relationship between political elites and law. Massoud has admirably laid the groundwork for such a further exploration; it would be fruitful to follow this path further.
Another issue Massoud raises that is worthy of further inquiry is the effect of legal pluralism on legal politics. One of the fascinating dimensions of the legal composition of Sudan is its radical legal pluralism: its complex layering of local, British, Islamic, and Turko‐Egyptian law. This complex layering includes many communities governed by their own rules and chiefs, far removed from the state. One of the most famous anthropological studies of the law, The Nuer, carried out by E. E. Evans‐Pritchard during the 1930s, begins by saying that the Nuer herders have no law, then takes 260 pages to describe their rules and procedures for settling conflicts, paying compensation for homicide, deciding whether or not to instigate a blood feud, arranging marriages, determining cattle ownership, and a myriad of other social situations (1940). The Nuer, now living in South Sudan, certainly had both law and law‐like institutions for settling conflicts. Such indigenous legal systems are widespread throughout the country, alongside the other legal regimes mentioned above.
Another possible expansion of this work would be to include ordinary people. This is now a study of legal and political elites, largely situated in Khartoum. It includes an analysis of documents, of the organization of the bar in Sudan, and of relevant laws and legal decisions, but it does not say much about the views of the common people, what they think about the law or human rights, or to what extent they are persuaded about the legitimacy of the state or impressed by its adherence to legal forms. The core concern is with the political actors at the center, not the powerless people on the periphery. It would be valuable to ask about the legal consciousness of the poor, villagers, farmers, and nomadic peoples who live under quite different legal systems outside the elite world of Khartoum.
Uncovering the perspective of common people could also illuminate their stance toward human rights. In the Sudan, Massoud thinks that teaching people about human rights does not necessarily lead to challenges to the state. However, the impotence of human rights here may depend on the authoritarian state and its failure to respond to rights claims as well as the inadequacy of the training programs. For example, Harri Englund's study of human rights training in Malawi (Reference Englund2006) also finds impotency, noting the inadequacy of the training itself, its lack of attention to local meanings and languages, and its failure to tackle everyday injustices or to destabilize authoritarian rule in the country. In my research in a small town in the United States, I similarly found that telling battered women that they have rights, in the absence of an effective legal response to their claims, has little effect (Merry Reference Merry2003). Human rights cannot be simply an idea; they must also offer an effective strategy for individuals who claim them.
Thus, Massoud's book offers important insights about the interaction between legal and political elites and the rule of law's capacity to challenge authoritarian governments, but it says relatively little about ordinary citizens. It does not explore their legal consciousness, their mobilization of law, and their sense of state legitimacy. These are, however, important questions that a subsequent study might address. It would be interesting to get a greater sense of how effective the authoritarian state has been in constructing legitimacy through law, for example, and how these views vary among the highly diverse social communities that make up Sudan. The book focuses on Khartoum and politics, not on groups such as the Nuer, the Dinka, or the Fur. When Evans‐Pritchard studied the Nuer, he found that they viewed the state as very remote and its laws irrelevant to everyday life. Communities were governed by rules, local chiefs, and the fear of curses and blood feuds. Massoud has introduced us to the world of the political and legal elites and their use of rule‐of‐law conceptions and institutions. Now it would be fascinating to take this question to the countryside and the urban slums to see if here the rule of law confers legitimacy on the authoritarian state and if ideas of rights are absent or irrelevant to ordinary people. Massoud has given us a fascinating account and at the same time opened up new questions to pursue.
In sum, Massoud's book provides a valuable perspective on the limits to the rule of law, showing that it can be co‐opted and used for nondemocratic purposes. Perhaps we expect too much from the rule of law. As Massoud shows, it clearly serves to maintain order and the legitimacy of the state. Do we also expect it to challenge the power of the state? The rule of law can mean simply a set of procedures rather than a mechanism to produce substantive justice. Indeed, in the context of neoliberalism, this is increasingly what the rule of law means. Law's Fragile State invites us to interrogate further exactly what we mean by the rule of law and what we expect it to accomplish. It reminds us, as sociolegal scholars, that law is always embedded in larger political structures and leads us to ask where its autonomy lies and what kinds of constraints it faces. And its historical perspective makes clear that legal systems may be built up over time from experience, conquest, and multiple religions and national legal traditions. A rule‐of‐law system introduced from another sociocultural framework will inevitably be only one more competing legal order.
