Mark Fathi Massoud, Law`s Fragile State: Colonial, Authoritarian, and Humanitarian Legacies in Sudan. Cambridge and New York: Cambridge University Press, 2013.
Jadaliyya (J): What made you write this book?
Mark Fathi Massoud (MFM): I wrote this book to investigate the nature of the law and how law is used both to develop and to disrupt authority. I also wrote the book to understand Sudan.
Sudan was the first sub-Saharan African country to achieve colonial independence from the British. Its post-independence period has been wracked by warfare, slaughter, and instability. One of its many interconnected civil wars was Africa’s longest. It ignited in 1983 and by the time peace accords were signed in 2005, more than two million people had been killed and Sudan was left with the world’s largest population of internally displaced persons.
My parents fled Sudan when I was a boy in 1983, as war resumed following a decade of relative calm. (Sudan’s earlier civil war began in 1955, just months before its independence, and ended in 1972.) I returned to Sudan for the first time in 2005 as a graduate student from Berkeley. I hoped to learn more about my homeland and the people who had stayed behind.
As a student and, later, a professor, I have devoted the last decade to trying to make sense of the concept and functions of law—and lawlessness. I could not investigate the law’s essence only by studying legal cases as I had done in law school. I hoped that investigating the law in as little-studied and unstable a setting as Sudan would reveal insights into the basis of the law’s instrumental and ideological malleability.
What I learned surprised me. Contrary to the conventional wisdom of a legal vacuum in “failed” or fragile states, the law matters immensely. Governments—colonial, democratic, and authoritarian—and civic organizations—regardless of their orientation—all seek to promote law and legal progress. They have constructed law schools, educated people about the law, built courts, and drafted constitutions to help them promote their political goals and achieve social or economic stability.
J: What particular topics, issues, and literatures does the book address?
MFM: This book addresses the complex ways that law develops in fragile states. It is based on fifteen months of archival and ethnographic fieldwork in Sudan, and also in Egypt and England (Sudan`s colonial masters). I conducted 175 interviews with lawyers, activists, and officials. I visited desert encampments for those displaced by violence in southern Sudan and in Darfur. Research took place in Khartoum, El Obeid, and Juba (which in 2011 became the capital of South Sudan).
The book builds on interdisciplinary literature in law, political science, and legal anthropology that examines the role of law in different political contexts. Much scholarship, though, has focused on democracies in the global West or, increasingly, on emerging economies in the global South. This book, instead, aims to further the study of law in the world’s most fragile states. Law serves significant functions in these places as well. A modicum of legality, for instance, allows ordinary people to manage their affairs and social order to exist, even as despots use features of the legal order for exploitative purposes.
J: Who do you hope will read this book, and what sort of impact would you like it to have?
MFM: My goal is for Law`s Fragile State to help scholars, students, policymakers, and the interested public to make sense of Sudan and what law does, and what it fails to do, in the world`s most desperate environments. Covering Sudan for 113 years from the start of the British colonial administration in 1898 until the secession of South Sudan in 2011, the book investigates the lasting effects of colonialism, the shifting roles of the legal profession, and the intensive promotion of human rights, particularly since the 2005 peace deal that ended Sudan`s civil war—Africa`s longest and among its most deadly.
J: What other projects are you working on now?
I have begun three new research projects since the publication of Law’s Fragile State. The first project shows how international arbitration tribunals paradoxically help authoritarian leaders maintain domestic power. The second project explores how foreign aid agencies build the rule of law in conflict and post-conflict settings through the mundane employment regulations that line managers import. The third project is an important collaborative endeavor, Shari’a Revoiced, which sets out to document American Muslims’ lived experiences of Islamic law.
Excerpts from Law`s Fragile State: Colonial, Authoritarian, and Humanitarian Legacies in Sudan
From the Introduction:
This book challenges both of these assumptions: that a legal order does not exist in so- called failed states like Sudan; and that legal tools and practices intrinsically serve to promote democracy and human rights. On the first assumption, I show that repressive regimes fighting civil wars may quite effectively use the law and legal resources to their own benefit just as they do their militaries in civil war. Where the law supplants violence, it can allow an illegitimate government to appear more moderate, thereby augmenting its authority. Civil society actors also adopt legal strategies of their own, by educating impoverished populations displaced by war to see human rights as an accessible set of legal tools and to adopt legal solutions to their oppression. On the second assumption, I argue that law’s normative character is not inherent and should not be taken for granted. Different political actors insert their own distinct moral predilections into the law to manufacture a range of tools to build up stability or security. Law, then, cannot be detached from political systems and behaviors; it is, instead, inherent to politics. Determining which normative qualities are associated with law and legal practices involves investigating who uses the law, what their goals are, and how they implement their political agenda. The case of Sudan reveals this multi-faceted nature of law and legal processes and, ultimately, how law is essential to, rather than missing from, unstable political environments.
Sudan illustrates the ways legal tools and practices are used as political resources precisely because it is a weak state that has swung so wildly between the extremes of colonialism, socialism, authoritarianism, and democracy. During these regime shifts, court benches have been hastily emptied and refilled; legal systems have flip-flopped between common law, civil law, and Islamic law; and human rights organizations have been shuttered and reopened. It is in this complex and troubled setting that aid agencies inspired by a sense of humanitarianism have been trying to promote legal progress and develop the rule of law. In less volatile states, the range of legal toolkits is certainly more limited, as law is constitutive of a relatively orderly and more stable state infrastructure. In erratic or threatening environments, a wider array of legal tools and concepts can be harnessed, manipulated, and discarded to build support for colonial administrators, authoritarian governments, and human rights groups seeking to reach the war-displaced poor.
What are these legal toolkits that colonial, authoritarian, and humanitarian actors use to build stability in unstable places? In general, they seek to stabilize the political and economic order by constructing (or demolishing) key building blocks of the rule of law, including drafting constitutions, writing or reforming legal rules, and encouraging the development of courts and the creation of spaces for grievances to be heard. Colonial officials, for instance, set up a state-supervised legal infrastructure to civilize local subjects in their image. Authoritarian leaders calling for Islamic law similarly construct courts and law schools to extend social control, but also to provide state resources to those citizens who surrender to the regime’s claims to authority. And civil society actors eager for foreign resources encourage impoverished persons to mobilize for peace and democracy under the shield of human rights law. These three distinct actors have been among those most responsible for shaping Sudan’s modern political history, and they create change through law-based reform and encourage the Sudanese people to follow their examples and turn toward the law.
The process of achieving political, social, or economic objectives using legal mechanisms—or, legal politics—is complex, disordered, and often violent. For instance, some of the most democratically minded lawyers and judges in Sudan reversed course during military rule. When lured by the promise of political power, they imprisoned activists and colleagues in the legal profession. Paradoxically, the case of Sudan sheds light on the precarious path toward E. P. Thomson’s vision of the rule-of-law ideal as an unqualified human good: the rule of law in action is stained by the blood of activists, nonviolent resisters, and the poor. The longue durée of the Sudanese legal order may one day reveal that law ultimately protects and empowers the poor as much as it has also subjugated them. But it is precisely the poor who are left behind during a process captured by elite political actors carrying legal tools of their own.
The goals and ethical leanings of British colonial officials, post-colonial authoritarian leaders and their opponents, and contemporary civil society activists and their donors could hardly be more different. They range from the consolidation of territorial control and the expansion of state authority to the promotion of human rights principles and human security. And yet, these actors have all similarly directed their limited resources toward drafting laws, constructing legal institutions, and training legal personnel—or, constructing a legal order. Why? By encouraging citizens to trust in and turn to formal legal institutions to resolve grievances with one another and with the government, law and legal institutions—particularly during periods of civil war and entrenched authoritarianism—become release valves for pressure building in civil society and spaces for anger to diffuse. Creating institutions like courts and grievance boards that purport to place limits on the regime’s power helps those regimes swallow, digest, and discharge grievances against them, rather than allowing those grievances to fester and gain potency. By financing the expansion of courts, regimes institutionalize claims against them, paradoxically boosting the regime’s legitimacy and authority by creating neutral spaces for dispute resolution. As civil society activists and aid donors encourage a similar expansion of legal institutions, authoritarian governments have been rewarded with more space to manufacture the image of legitimacy and social control.
[Excerpted from Law`s Fragile State: Colonial, Authoritarian, and Humanitarian Legacies in Sudan, by Mark Fathi Massoud, by permission of the author. © 2013 Mark Fathi Massoud. For more information, or to purchase a copy of this book, click here.]