Ideals and Practices in the Rule of Law: An Essay on Legal Politics

Massoud, Mark Fathi. 2013 . Law's Fragile State: Colonial, Authoritarian, and Humanitarian Legacies in Sudan . Cambridge: Cambridge University Press. Pp. 277. Paper $34.99. This essay responds to the three commentators in the symposium on my book, Law's Fragile State, by describing the sociolegal study of the rule of law as an investigation into both a set of ideals (the rule of law as a normative question) and a set of practices (the rule of law as an empirical question). Studying the rule of law involves understanding the contingent nature of its ideals as well as investigating the actual work that lawyers, judges, state officials, aid workers, activists, and others have done in specific contexts to promote legal remedies to social or political ills. These overlapping layers of the study of the rule of law—ideals and practices, normative and empirical—provide a sociolegal framework for understanding the successes and failures of legal work and, ultimately, how citizens experience state power in democratic and nondemocratic societies alike.     

Rethinking Law and State Building in Sub‐Saharan Africa

Massoud, Mark Fathi. 2013 . Law's Fragile State: Colonial, Authoritarian, and Humanitarian Legacies in Sudan . Cambridge/New York: Cambridge University Press. Pp. x–277. ISBN: 9781107440050. Paper $34.99 This essay is a response to Mark Massoud's Law's Fragile State, and through comparative inquiry argues that highly contextualized analysis of courts is critical to gaining an understanding of judicial decision making and judicial empowerment. As Massoud demonstrates, focusing on the legal complex is a particularly worthwhile endeavor in fragile states. Although we may understand the sociology of the legal profession, we do not fully understand how professional networks, career paths, and identities truly impact the institutional pathways of the courts and the legal system as a whole.     

The Rule of Law between England and Sudan: Hay,Thompson, and Massoud

Massoud, Mark. 2013 . Law's Fragile State: Colonial, Authoritarian and Humanitarian Legacies in Sudan . Cambridge/New York: Cambridge University Press. Pp. x–277. ISBN: 9781107440050. Paper $34.99 Two significant writings, one by Douglas Hay and the other by E. P. Thompson, appeared in 1976. Both sought to explain relationships between law and social (specifically, ruling‐class) power in a manner that avoided treating law either simply as a coercive instrument of class domination (“vulgar Marxism”), or as a good for all “(liberal legalism”). They overlapped and each was influenced by the other, but they differed significantly, in substance, in tone, and in admirers. Mark Massoud sensibly and thoughtfully draws inspiration from both. This article queries, however, whether his account of the role and rule of law in Sudan manages to resolve a significant tension between Hay and Thompson. This results in a certain ambivalence in the telling, a sometimes anguished oscillation between two interpretive modes, perhaps sensibilities, represented by Hay and Thompson, each of which can lead in different directions.     

The Rule of Law in Fragile States: Dictatorship,Collapse, and the Politics of Religion in Post-Colonial Somalia

The fate of the rule of law in fragile states rests in religious politics. Three defining periods of Somali politics illustrate this argument. First is the authoritarian regime of Mohamed Siad Barre in Somalia (1969–1991). This dictatorship used religion to rule by law. The regime executed religious leaders for disagreeing with the government's interpretation of Islam. Second is the rise of Islamic courts in Mogadishu, Somalia's capital city (1991–2007). The Islamic courts apprehended criminals, expelled warlords, and provided spaces for Somalis to resolve disputes peacefully. Third is the breakaway of Somaliland (1991–present). Somaliland has advanced Islamic legal principles to build peace and constitutional law. Taken together, these three periods demonstrate how religious politics transform law and society.     

International Arbitration and Judicial Politics in Authoritarian States

This article uses the case of Sudan to show how authoritarian regimes benefit from embracing international arbitration, allowing them to maintain domestic control and attract foreign investment. International arbitration ensures that foreign‐investment disputes are resolved outside of domestic purview, obviating the need for nondemocratic states to create independent courts. Research on judicial politics in authoritarian regimes has largely overlooked those private and extra‐judicial pathways—international arbitration tribunals—that illiberal regimes have been taking. Similarly, research in international commercial law has neglected domestic politics, overlooking arbitration's consequences for domestic stakeholders. Promoting international arbitration without paying heed to its side effects can unwittingly help illiberal regimes, particularly in weak states, to continue to repress their judiciaries and curtail the development of domestic legal institutions and the rule of law.     

Contentious Politics in the Courthouse: Law as a Tool for Resisting Authoritarian States in the Middle East

Under what conditions will individuals mobilize law to resist states that operate above the law? In authoritarian countries, particularly in the Middle East, law is a weapon the state wields for social control, centralizing power, and legitimation. Authoritarian legal codes are overwhelmingly more deferential to state authority than protective of citizens' rights. Nevertheless, people throughout the Arab world deploy law to contest a broad array of state abuses: land expropriations, unlawful arrests, denials of jobs and welfare, and so on. Using detailed interviews in Jordan and Palestine, I outline a theory of law as a tool for resisting authoritarian state actors. Integrating qualitative insights with survey experiments fielded in Egypt and Jordan, I test this theory and show that aggrieved individuals mobilize law when they expect courts are powerful and attainable allies in contentious politics. My results further demonstrate that judicial independence does not uniformly increase authoritarian publics' willingness to access courts.     

The Middlemen: The Legal Profession,the Rule of Law,and Authoritarian Regimes

Scholars are increasingly interested in exploring ways to strengthen the rule of law in authoritarian states—especially when deeper political reforms are not attainable. The article contributes to this discussion by revisiting the story of the emergence of the so‐called socialist legality in the communist states of Eastern Europe. Using the historical record from Poland, the author demonstrates a previously unnoticed, yet pivotal, role of legal professionals in facilitating socialist legality's rise to prominence. Using the lenses of Pierre Bourdieu's theory of fields, the article chronicles the evolving dynamic between the legal profession, the authoritarian regime, and society. These observations challenge conventional explanations of the emergence of the rule of law in nondemocratic conditions.     

Law and Identity in Colonial South Asia

This essay articulates the contributions of Mitra Sharafi's study of Parsi legal culture to colonial legal studies. Situated at the intersection of the literature on legal pluralism and legal institutions, Law and Identity in Colonial South Asia: Parsi Legal Culture, 1772–1947 (2014) uses a range of new legal sources and case law to recover a remarkable history of collective identity that emerged via the medium and infrastructure of law. The Parsis' active participation in colonial legal institutions not only reshaped their normative worlds but also de‐anglicized imperial law.     

Law's Allure and the Power of Path-Dependent Legal Ideas

Gordon Silverstein's Law's Allure (2009) advances a two-part thesis on the power of legal ideas. The first is that legal precedents establish the ideological baselines on which legislative and bureaucratic policies are developed. Silverstein amply demonstrates the validity of this thesis. The second is that by establishing ideological baselines, legal precedents contribute to a version of path dependency (or the idea that early choices determine long-term developments) that is significantly more constraining than other forms of institutional entrenchment. Put simply, law shackles creativity in politics. This thesis I do not find persuasive, in part because Silverstein offers little evidence for it and in part because a growing body of literature suggests the contrary: the cross-fertilization of ideas from one field to another—law to politics, for instance—contributes to, rather than retards, creative change. Nonetheless, while its broader ambitions are not satisfied, Law's Allure's narrow thesis—that precedent profoundly shapes policy development—is important and worthy of a major book in itself.     

“Going to Law”: Reflections on Law,Religion, and Mitra Sharafi's Law and Identity in Colonial South Asia

This essay explores religion's need for law, comparing the story told in Mitra Sharafi's Law and Identity in Colonial South Asia (2014)—about the virtual hijacking of British colonial law to serve the communal religious needs of Parsis in colonial India—to other contexts in which secular and religious legal systems have built symbiotic relationships, including in the United States and Thailand. It concludes by urging a reweaving of religious and legal histories after the critique of secularism and its shadows, separationism, and antinomianism.     

Law's Allure and an Interbranch Perspective on Law and Politics

This essay views Gordon Silverstein's book Law's Allure: How Law Shapes, Constrains, Saves, and Kills Politics (2009) from the perspective of the burgeoning interbranch literature on law and courts, which seeks to place judicial decision making within the context of ongoing political and policy-making processes. It argues that Law's Allure reflects the strengths and weaknesses of this literature. On the plus side, it compellingly reinterprets the concept of legal precedent in political terms, showing how the content of judicial decisions serves as an iterative framing mechanism within and across various policy areas. On the downside, it struggles to provide a rigorous framework for analyzing the risks of the juridification of American politics. Despite any weaknesses, its attempt to map different pathways of legalistic court-based policy development in diverse settings represents a useful step for those interested in bringing the study of law and courts back into the core of analyzing American politics and policy making.     

Law against the Rule of Law: Assaulting Democracy

This article examines how authoritarian contenders use law to advance an agenda geared to exclusive state power in light of a paradigmatic case: the National Socialists’ takeover of the German state apparatus in spring 1933. This case highlights two ways in which an office holder is able to expand his power in an authoritarian fashion through legal dispositions. A conjunctural use of law for authoritarian purposes draws on legal statutes to undercut the political capacity of opponents and competitors, hollow out institutional checks, and crucially hamper civil freedoms. Taking advantage of constitutional provisions that make institutional subversion from within possible (‘constitutional Trojan horses’), a structural use of legal statutes reorders the power structure by reallocating decisional rights. In both cases, law serves as a weapon against the rule of law. These considerations raise the question of the standards by which we are to judge the legality of such acts. Contemporary instances of democratic backsliding are cases in point.     

A New Textbook

Moscow University Press has published a new textbook, Public Law of the Bourgeois Countries and of Countries Liberated from Colonial Dependence. (1) The very title of the textbook is evidence that the team of authors headed by Professor Mishin has abandoned the traditional organization of the course in public law of bourgeois countries by including among the problems studied the systems of public law of countries that upon liberation from colonial dependence took the political forms of bourgeois democracy or of established authoritarian political regimes. This grouping is entirely justified and is explained by the fact that all nonsocialist governmental systems have a number of significant common characteristics, above all the fact that they reinforce and protect the capitalist economic system and capitalist ownership of the implements and means of production.     

Punishing Bodies,Securing the Nation: How Rule of Law Can Legitimate the Urbane Authoritarian State

Although authoritarian rule of law may seem an oxymoron, strategic reconfigurations of the “rule of law” can produce acceptance of law that observes procedure while erasing rights. By bringing into conjunction critical discourse theory and scholarship on the legal professions and political liberalism, this article shows how rulers can deploy rhetoric and legislation to produce derogations from the liberal content of rule of law while sustaining a state legitimacy built on claims to state realizations of rule of law. A close analysis of Singapore's Vandalism Act shows that silencing the critique of lawyers and constraining the power of judges has been crucial to a legitimation of the surveillance and criminalization of dissenters. The consolidation of state power effected via law and discourse might be seen as making the nation a notional panopticon—corporal punishment, even if conducted behind prison walls, becomes instructive public spectacle conveying the state's seeming omniscience and monopolistic command of law.     

陶行知治校实践中的民主与法治思想论略

为培养学生参与未来民主政治的能力,陶行知强调学校要实行民主管理.同时,陶行知也认为,学校管理中的民主与法治是不可分的.在育才学校的创办和治理实践中,陶行知从保障学校成员的权利和立法、行政、司法相制衡的角度考虑学校中管理机构、权力分配和工作程序的设计,体现了民主与法治相结合的原则.陶行知的这种治校的民主与法治思想对于当前我国提倡的依法治校实践具有多方面的启示.     

邓小平法治思想与我国政府法治的实现路径

邓小平法治理论论述了社会主义法制建设的基本方针、基本要求、民主与法制的辩证关系和立法、执法、司法、法制宣传教育以及一系列法治理论,对推进我国政府法治化进程具有重要的指导意义,也为我国政府法治的实现路径指明了方向。     

现代法治与民主宪政的金融解释

金融发展对一国的现代法治与民主宪政有着深远的促进作用。金融格局与工商文明构建了现代民主、法治的基石,内生化了市场对法律制度、民主宪政制度供给的需求。欧洲式的现代民主法治的建构与金融市场的发展有着极为密切的联系。正是由于有着与金融财富增长相匹配的金融民主模式,欧美国家的民主宪政得以确立。文章以金融秩序与工商文明的发展为主线,从金融视角,解读中国社会工商文明的系统累积与法律制度供给,金融工商文明的话语体系与思维方式,政府公权力与民间私权利的互动,对深刻理解与构建中国社会的现代法治与民主宪政,具有重要意义。     

法治国家下的少数人的特别权利

“多数与少数的关系”是民主理论、民主政治和法治国家的核心论题。满足不同的民族、族裔、宗教和语言群体的愿望并确保属于少数群体的人的权利,是法治国家的基本要求。现代民主政治体制和法治国家下促进和保护属于少数群体的人的权利的规定包括禁止歧视和少数人的特别权利。这些基于现代民主政治和法治国家下的平等理念已经成为国际社会的共识而在国际条约中得到了具体体现,集中体现在《在民族或族裔、宗教和语言上属于少数群体的人的权利宣言》。     

中国依法治国的渐进性

穷国无法治 ,愚昧无法治 ,乱世无法治。我国不是一个连一点法律经济成本都付不出的穷国 ,但也不属于可以付出足够法律经济成本的发达国家 ;我国不是一个连一点现代法治所需文化条件都不具备的愚昧国家 ,但也不属于完全具备现代法治所需文化条件的国家 ;我国不是一个处于乱世的国家 ,但波澜起伏的社会变革对法治的影响也是显而易见的。因此 ,中国依法治国的渐进性是一种客观规律。     

Seeing Like an Islamic State: Shari‘a and Political Power in Sudan

Islamic law, or shari‘a, has been incorporated into the legal systems of many states. In much of the existing literature, this process is understood as part of the colonial and postcolonial state's attempt to render law legible—that is, codified, standardized, and abstract. In this article, I show how some state actors chose to move in the opposite direction, actively discouraging the transformation of shari‘a into a formal and codified system of law. Using the case of colonial and postcolonial Sudan, I argue that these actors viewed legal legibility as a threat to state power, recognizing the jurisgenerative potential of an informal and uncodified law.