Decolonizing the Centralist Mind: Legal Pluralism and the Rule of Law

摘要

By and large, in the study of the rule of law and in programmatic efforts in the field to achieve it, sufficient heed has not been paid to the central lesson that legal pluralism has laid bare. This is that in any social field, there is more than one functioning legal system. In other words, state law invariably operates together with other legal systems in the same social field, each of which is "semi-autonomous" in its workings and none of which enjoys a monopoly on the maintenance of order. Indeed, there is much evidence that the role of the state as a global matter is evolving in a fashion that might very well decrease its influence in this complex system. Until and unless rule of law reformers grow acculturated to these realities, efforts to institute the rule of law are likely to fall well short of expectations. This involves more than merely understanding how different legal systems operate in the broader social matrix. It even involves more than making the obvious concession to reality that any rule of law program operating in the developing world must, and often does, make; namely, that there are functioning nonstate systems, that they tend to dominate the legal landscape, and that they must therefore be a matter of premier concern. More centrally, it requires a form of decolonization of the mind. Specifically, rule of law policies and programs must come to realize that legal systems that are autonomous of state law will invariably exist, irrespective of what type of rule of law society ultimately emerges. This chapter explores the deficiencies associated with the legal centralist assumption in the context of rule of law efforts, and the means by which rule of law as an operational matter could be better deployed once we deacculturate ourselves from that unjustified assumption. While the lessons are intended to be universal, the reference used to illustrate the point is the Islamic world, particularly Shi'i dominated central and southern Iraq.