Religion(s) and the rule of law: Let us compare mythologies

The glittering and hurting days are almost done
Then let us compare mythologies 
I have learned my elaborate lie 
of soaring crosses and poisoned thorns.

—Leonard Cohen, Let Us Compare Mythologies (1956)

As perceptively noted by James Boyd White, religion is difficult to talk about because it speaks to a way of experiencing life that affirms ineffable or mysterious links between self and others, truth and uncertainty, the real and the spiritual. Any conversation that traverses religious boundaries engages competing and at times mutually inconsistent cosmologies that often reduce one another to sheer irrationality or obscurity. This poses a particular challenge when we attempt to speak to a reality, a project, or an ideal that spans religious beliefs, linking individuals to form a national community superimposed upon the religious ones. There is a real risk that the common language forged to speak in terms of categories like citizenship or nationality will suppress aspects of a religion considered fundamental to its adherents, a silent erasure of difference taken as the marker of a coherence that in fact may be more apparent than real.

Lawyers, for whom the erection of such intellectual scaffoldings presents a largely irresistible urge, may be more at risk than most of falling prey to this illusion of coherence in the process of creating and interpreting the legal norms meant to regulate our societies. Creating political communities where difference can exist, including where people can faithfully live out their religious beliefs, has been a consistent challenge for states professing their acceptance of diversity. I previously wrote in those terms about the debated turn to multiculturalism in constitutional law as a juridical response to diversity. Yet I find myself drawn back to the same idea, perhaps in a more profound manner, by Mark Massoud’s creative and powerful assertion that the rule of law may offer a bridge that links different worldviews grounded in distinct religious beliefs. The rule of law and every religion may each brood a particular mythology, but there is much to be gained by putting them all in conversation.

Everyone, from Vladimir Putin to Xi Jinping, seems in favor of the rule of law. The idea attracts support from every corner, whether it be national governments or international organizations, whether they be democratic or authoritarian, whether they embody Western traditions or those of other parts of the world, whether they speak for the necessity of public authority or the defense of individual liberty. ISIS’s views are a rare exception to the understanding of the rule of law as common sense. The group’s embrace of divine law leads it to reject positive law and the doctrine of the rule of law (in addition to democracy, human rights, and separation of powers).

The rhetorical popularity of the rule of law can be explained in at least two ways. First, as Massoud evocatively argued in an earlier essay, the rule of law is “a construct of desire,” occupying a space that can never entirely correspond to reality save in the tangible presence of a yearning. As such, it has something to offer to any society. Put differently by Philip Allott, the idea of the rule of law is “an absurd but necessary fiction.” It is ineluctable that rule-of-law issues will arise in every place and at all times. If everyone fails, to some degree, to comply with the aspirational objectives that correspond to the rule of law, then to stand accused of the same does not amount to the most damning indictment: the answer will always be that compliance with the rule of law is necessarily a work in progress. Second, the popularity of the concept of the rule of law reflects the malleability of its content. It is a label so broad and fuzzy that it answers many aspirations and hides many sins. The lack of fixed content is not an accident. Nor is it a failure to bring to fruition a diplomatic negotiation or theoretical conversation. Rather, the ambiguity of the rule of law is one of the concept’s defining features. The range of actors invoking the rule of law madly off in all directions actually sustains the demand for conceptual obscurity. This is compounded at the international level by the challenges of translating the concept, from État de droit or Rechtsstaat to pravovoe gosudarstvo to fahzi (法规), with every language offering a label that orients its substance in one direction or another.

Despite the fact that the rule of law is an essentially contested concept without an agreed fixed content, it did emerge from a specific intellectual and political tradition that brought with it, at the very least, a certain type of sensitivity. As a concept, its emergence is rooted in the progressive dissociation of Christian ethics and natural law as imposing limits on the authority of the prince, as well as the rise of the so-called Westphalian state, in which the state’s authority is detached from the person of the sovereign. What Hugo Grotius offered, in a manner that was later made clearer by Emer de Vattel, was a formulation of a principle of limited authority that no longer relied on the teachings of Christianity but nevertheless remained permeated by its ethos. The concept of the rule of law may not use its vocabulary, but it speaks silently the language of Christianity. As a principle of public governance, the rule of law became associated with the state as both progressively were exported from the West to the rest of the world, by way of colonial expansion or as a necessary precondition for admission to the “concert of civilized nations.”

In his recent book, Massoud maps the imposition of and resistance to this vision of the rule of law in the colonial and postcolonial history of Somaliland and Somalia. “Law,” as famously put by Martin Chanock, “was the cutting edge of colonialism,” not merely as a governance tool but more fundamentally as a “gift of civilisation.” The rule of law was used, first by colonial rulers and then by Somali ones, as a principled justification to unify all legal orders, including ones connected to Sharia, under the authority of the state. What Massoud succeeds in eloquently demonstrating is the extent to which this project failed to become deeply engrained in social and political ordering in Somaliland and Somalia. The state’s monopolistic claims to the administration of justice ring decidedly hollow when confronted with the yearnings for a Sharia-based approach to justice, perceived even by lawyers trained in the Western way of the law and working in the Somali justice system, not to mention the population more broadly. The rule of law provides an architectural structure for a particular way of thinking about legal traditions, but it remains itself contingent, tied to a broader intellectual tradition that allows or even demands separating law from other frames of life. As Robert Cover suggested, we inhabit a nomos, a normative universe in which “law is a resource in signification” encased in a wider normative universe that generates its own Grundnorm. The attempt to rely on the rule of law as a Trojan Horse to take over the idea of law in a place like Somalia and Somaliland, Massoud suggests, cannot succeed.

But the story of the rule of law in the Horn of Africa is not necessarily only one of failed colonial transplant. While Sharia is considered with suspicion if not outright hostility by many apostles of the rule of law, Massoud argues that the very flexibility of the concept allows it to be modulated by Sharia in a manner that mirrors its Christian origins, resulting in an Islamic rule of law that would marry social and political ordering with collective acceptance. The fact that Somaliland and Somalia have been a colonial holding, then a state that eventually became fragile and ultimately failed, and finally an unrecognized state in the case of Somaliland, makes the region an especially enlightening laboratory to analyze the rule of law. As Pierre Bourdieu noted, “the dissolution of the state makes it possible to see everything that is implicit and taken for granted in the functioning of the state.”

Another similar situation of dissolution that opens new vistas for a deeper understanding of the rule of law is rebel governance by nonstate armed groups in conflict zones. Not rarely, armed groups turn to the narrative of the administration of justice to structure their governance activities, creating their own courts and applying their own laws. I have argued that, in such situations, the common description of warzones as “lawless” is misguided. The concept of the rule of law can be invoked both to frame a deeper understanding of such rebel practices and to open avenues for engagement with such groups with a view to nudging them to abide by precepts of fundamental justice. The Taliban is a good example: the group began as an insurgent movement, then became the government of Afghanistan, then was again an insurgency, and then finally returned as the government of Afghanistan. A concern with a certain vision of justice inspired by the group’s interpretation of Sharia traverses all these different roles, reflecting the necessary vernacularization of the idea of the rule of law.

Ultimately, the approach sketched in the previous paragraphs foreshadows the necessary conceptual fragmentation of the rule of law, imagining it not only or even primarily as a set of parameters, thick or thin, regulating the exercise of public authority, but rather as a bridge across which different people with distinct worldviews can engage with one another. Mythologies such as the rule of law may be acts of imagination—dreams, if you will—and nevertheless play a vital role in human existence. After all, as Ben Okri concludes so profoundly in The Famished Road, “a dream can be the highest point of a life.”