Can Traditional Legal Customs Coexist With Western-Style State Law?

Geoffrey Swenson’s book Contending Orders tackles Afghanistan and Timor-Leste.

Contending Orders: Legal Pluralism and the Rule of Law, by Geoffrey Swenson, Oxford University Press, Oxford University Press, 288 pages, $74

Geoffrey Swenson's Contending Orders is interesting for two reasons. The first is that Swenson, who is both a lawyer and a political scientist, takes seriously the existence of nonstate law and its associated legal systems—in this case, in the context of traditional societies emerging from violent conflict. The second is that he describes attempts in two very different societies to replace traditional legal and political institutions with modern ones. By his account the project is succeeding in one case and has failed in the other, in part because the first did and the second did not succeed in creating a cooperative relationship between state and nonstate institutions.

The successful case is Timor-Leste, earlier known as East Timor. After an extended violent conflict with Indonesia, Timor-Leste got its independence not by military success—the independence forces eventually gave up on that—but through outside pressure. It then succeeded, with a great deal of foreign help, in establishing something close to a rule-of-law legal system and a government sufficiently democratic to permit peaceful shifts of power between the major parties.

Swenson reports that the informal legal system is "centered on small, tightly knit communities" and that it "emphasizes compensation and reconciliation rather than punishment….Once appropriate compensation has been determined, reconciliation seeks to restore communal harmony." Immediately after independence, he adds, "The vibrancy and authority of non-state justice contrasted starkly with the low capacity, legacy of illegitimacy, and administrative confusion of the state courts."

The nonstate system, essential for the functioning of the society, was neither integrated into the state system nor left entirely independent. The government set up elections for local chiefs, replacing traditional institutions based on membership in leading families, and it subsidized them. The councils' authority was, in theory, restricted to minor crimes but nonstate authorities continued to resolve most disputes.

The failed attempt was Afghanistan. The informal system there, applied through local gatherings, enforced a mix of Islamic and tribal law. Part of the reason for the failure, in Swenson's view, was the lack of any serious attempt to create cooperation between the state and tribal legal systems.

Swenson does not mention two other and perhaps more important differences between the two projects. Timor-Leste has a population of about a million, Afghanistan about 40 million. Keeping control of the nation-building project, monitoring the court system to prevent corruption, running the country for the first two or three years of independence, and providing foreign legal actors to man the court system until sufficient local actors can be trained, as the United Nations did in Timor-Leste, is easier on a small scale than a large one.

A second difference was that Timor-Leste's insurgents, having won with foreign support, cooperated in the project to create a democratic government. In Afghanistan, in contrast, there was a competition for control between the Afghan government and the Taliban. Foreign actors' ability to prevent rigged elections and a corrupt judicial system, or to do anything else that the government they were supporting did not want them to do, was limited by the risk that conflict on one side of the civil war would help the other side.

Swenson is mostly concerned with success or failure in establishing a rule-of-law legal system, but that was only part of what the foreign actors wanted. They also wanted to create a democratic political system, a cooperative relation between the state and informal legal systems, and legal outcomes consistent with modern Western principles.

Swenson portrays his preferred political system as a means toward his preferred legal system: "In theory, democracy is not required for the rule of law. Yet, as a both practical and empirical matter, the rule of law demands democratic government in some form." His book, however, provides evidence against that claim. "In contrast to the state," he notes, "the Taliban made establishing a legitimate legal order the core of its political program by offering inexpensive, expedient, and relatively fair dispute resolution." The Taliban, unlike the national government supported by the U.S. and its allies, followed the approach Swenson recommended: "While locked into a combative relationship with the state legal system, the Taliban proactively built relationships with tribal and religious leaders." That was made easier by the fact that it was enforcing essentially the same law as the traditional system.

For older examples of the rule of law in nondemocratic systems, consider the history of imperial China or the following anecdote, set in 14th-century India, from The Rehla of Ibn Battuta: "A young boy, one of the sons of the maliks, brought a claim against the Sultan that the latter had struck him without just cause, and cited him before the qadi. Judgement was given against the Sultan to the effect that he should give the plaintiff monetary compensation, if he would accept that, or alternatively allow him to exercise his right to retaliate in kind. I was present that day when the Sultan returned to his audience-hall, and saw him summon the boy, give him a stick, and say to him, 'By my head, you shall strike me just as I struck you.' Whereupon the boy took the stick and gave him twenty-one blows, so that I actually saw his high cap fly off his head."

That was offered as one of several examples of Mohammad Ibn Tughluq, the powerful and fabulously wealthy sultan of Delhi, accepting the principle that the ruler is bound by the same law as the ruled. No doubt not all Muslim rulers did so—Ibn Battuta offered the anecdote as evidence that Ibn Tughluq was a good ruler—but that is true in democracies as well. Sovereign immunity in the U.S. immunizes governments from damages that a private party would be liable for. George W. Bush publicly admitted knowingly using information obtained by the National Security Agency in violation of the Foreign Intelligence Surveillance Act, a felony, but was never indicted or tried for it, evidence that he was less committed to the rule of law than Ibn Tughluq.

A major problem faced by the foreign actors trying to reconstruct legal and political institutions along modern Western lines was the tension between their other two objectives. It is difficult to maintain a cooperative relationship with the informal legal system while getting it to conform to modern Western principles. As Swenson says, "The idea that post-conflict Afghanistan would soon establish a secular legal order that wholeheartedly endorsed gender equality and international human-rights norms was optimistic to the point of absurdity." Similarly, in Timor-Leste, "While domestic policymakers and the international community prioritized promoting gender equity and protecting women's rights, this paradigm shift from private matter to public crime went against much established state and non-state practice….How suco leaders address domestic violence remained largely discretionary in practice, which gives non-state authorities an effective veto over state law in their jurisdiction. Moreover, women were often unable to access state courts, and state officials frequently ignored their claims despite the law's written requirements."

Colonialism is currently out of fashion, which may be why it never occurred to Swenson that the project he was discussing—converting traditional societies into modern societies—is an updated version of the 19th-century colonialists' idea of "the white man's burden." The old imperialists had been replaced by the United Nations, nongovernmental organizations, international peacekeepers, and cooperating governments, but the problem was the same: how to incorporate traditional legal institutions into the system they were building while replacing traditional legal rules with ones they approved of.

Given sufficient power and sufficient motivation, custom could be changed, as illustrated by the famous quote from Charles Napier on the subject of suttee: "This burning of widows is your custom; prepare the funeral pile. But my nation has also a custom. When men burn women alive we hang them, and confiscate all their property. My carpenters shall therefore erect gibbets on which to hang all concerned when the widow is consumed. Let us all act according to national customs."

Neither the U.N. and the central government in Timor-Leste nor the U.S. and its allies in Afghanistan had the power to take a similar approach, even if they had been willing to do so. In Timor-Leste, they successfully supported the local elites in establishing a democratic political system but failed to force the traditional court system to produce outcomes consistent with Western legal principles. In Afghanistan, they lost to a nondemocratic rival more committed to the rule of law and more willing to establish a cooperative relationship with informal legal institutions than was the U.S.-backed Afghan government.