I write this essay as I witness the sudden death of the nation of my birth. Khartoum, Sudan’s capital city on the Nile, has been engulfed in the black smoke and fast-moving flames of a chaotic war between two political rivals, each with his own powerful army claiming control of the territory. In a few short weeks in mid-2023, foreigners evacuated, embassies closed, and tens of thousands of survivors fled for safety anywhere they could go outside the city.
“Pray for us,” Samira, a Sudanese friend and peace activist, recently said to me amidst this violence in Khartoum. It was before she fled her home, not knowing if or when she would return. Samira had lost a family member and a coworker in just a few days since the violence erupted. As political and social institutions collapsed around her, she gathered what she could and escaped.
Cries for the rule of law, a way of governing without arbitrary power, seem distant in these times of unmitigated terror and state collapse. But faith remains in people, even as their nations crumble. In this essay, introducing an Immanent Frame forum on law, religion, and state building, I argue that faith in rules—the conviction that rules matter and that rules can and should be followed—is a seed from which the rule of law grows. I also argue that this faith in the power of rules must be tempered, because rule devotion can foster colonialism, despotism, and oppression.
My purpose here is to highlight the insights that come into view when studying state building through the lens of law and religion globally. My starting assumption is that law and religion are lived traditions, meaning that they must continually adapt to people’s circumstances. Without human faith in law, just as with faith in God, texts, ideals, and rules become outdated, peripheral, and eventually inapplicable—and then they die.
The prophets of the rule of law
As a younger scholar, I examined the concept of the rule of law in Sudan. My investigation of the rule of law across 113 years of Sudanese history—from the start of British colonialism in 1898 until the secession of South Sudan in 2011—is published in my book Law’s Fragile State.
In 2005, I traveled to Sudan for the first time since I was a child, after the end of what was Africa’s longest civil war. My family left Sudan at the start of that war in the early 1980s. When I returned more than two decades later as a law student and an intern with the United Nations, I met foreign aid workers and Sudanese activists who were promoting the rule of law. To them, the rule of law was not only a goal associated with the end of tyranny, but also a tool that they used to rebuild trust in the state. I began to see the rule of law as a kind of prophecy meant to instill hope, both in the aid workers and activists who delivered its message and in the Sudanese people who received it.
However, I also learned that the prophets of the rule of law historically have included colonial administrators and dictators. As I explain in Law’s Fragile State, I met one of the last surviving British colonial administrators who had worked in Sudan before its 1956 independence. He invited me for lunch at his home in the English countryside, and during our interview that followed, he told me that the idea of limited government “was talked about the whole time in the [colonial] administration. It was the basis” of colonial government. I had known that colonial imperialism was long out of fashion, and it was hard for me to understand how colonial officials saw their work as inspirational.
After that interview, I left England and traveled to Sudan, where I found international lawyers from UN agencies and aid workers from international nongovernmental organizations making similar claims that they were sharing the inspirational gift of the rule of law with the Sudanese people. This led me to learn how colonial and humanitarian activities paradoxically looked quite similar, in that both seemed to be made by foreigners trying to liberate the Sudanese people from themselves.
In between the gift of the rule of law given by colonial officials and aid workers a half-century apart, dictators like Jafaar al-Nimeiri and Omar Hassan al-Bashir, who ruled in succession between 1969 and 2019, found something in the institutions of the rule of law too. They built courthouses, constructed law faculties, and trained people to resolve their disputes with one another nonviolently and to trust in the state to help them find peace—precisely the same strategies of contemporary UN agencies and aid groups. The dictators also extracted resources and ruthlessly put down dissent. The rule of law, limitless as an ideal, can be squeezed to fit many different political goals.
The language of the rule of law
The nation-state of Sudan, and the general notion of the nation-state itself, are relatively recent phenomena in human history. Today, nation building and state building have become almost synonymous. The concept of the rule of law, however, is as old and diverse as human language. Across times and places, people forming societies have created principles and rules for self-governance. Their rules needed followers, and in many cases the legitimacy to follow the rules came from the rules’ religious foundations. The rule of law today “speaks silently the language of Christianity,” René Provost argues in his contribution to this forum. But, as Provost shows, the concept is also deeply ambiguous, especially across languages and cultures.
What unites modern concepts of the rule of law is their theological valence. From the start of European colonial rule in the 1880s through the first two decades of the twenty-first century, religion in Western societies has both undergirded the rule of law and facilitated dissent from the law. This I learned in a most unlikely place from which to study the rule of law: Somalia. European colonizers in the Horn of Africa imported views of sharia—commonly translated as Islamic law—from Muslim sheikhs in Mecca and Khartoum, and even from non-Muslim officials in London and Rome, to try to convince Somalis that Islam permitted European colonial rule. Postcolonial governments in Somalia like the dictatorship of Mohammed Siad Barre, who ruled from 1969 until the state collapsed in the 1990s, tried to use and stifle the power of religion. And many Somali activists I met during my fieldwork during the 2010s also used sharia to further a national identity and women’s rights. The results of my research on religious state building were published in my book Shari‘a, Inshallah. The book argues that the contemporary Somali story of Islamic state building parallels the historical American story of Christian state building.
The findings from my empirical research in Sudan and Somalia have helped me to see the remarkable parallels between theology and the rule of law. One of the main reasons for the rule of law is to limit arbitrary power. State officials are supposed to limit their power by submitting to the authority of state law. But I have seen people also restrain or limit their power under God, not just under state law. They see God, not state officials, nor state law, nor constitutions, as the source of ultimate authority.
In this way, religion offers an ideology from which to build states and legal systems, transform them, or tear them down, as well as an ethical, moral, and political framework from which people can judge the state’s behavior. Modern state law operates in a similar manner, which makes it easy for many lawyers to miss—even denigrate—religion when they are looking for law, a problem that my work has long sought to rectify.
From Christian lawyers in contemporary China (Terence Halliday, in this forum) to rebellious activists in British colonial Jamaica (Jack Jin Gary Lee, in this forum), people who care about justice draw a causal link between their theological beliefs and their struggles for the rule of law. Jason Klocek, in his contribution to this forum, shows how the fight for religious freedom in “countries of … concern” has allowed Western democracies to evade problems at home, like antisemitism and Islamophobia. Provost draws on his research showing how armed groups sometimes create sophisticated judicial infrastructures that, surprisingly, lean toward international human rights and humanitarian law. Finally, Nadjma Yassari underscores how people and institutions looking for rules to follow sometimes find those rules from private clerics rather than from state law—especially when state law is silent or ambiguous, as has been the case with hopeful parents in Iran looking for in-vitro fertilization.
Taken together, the contributions to this forum offer three conclusions about law, religion, and state building. First, empirical research that connects these three categories is exciting because it pushes national, cultural, religious, and disciplinary boundaries. The authors of the essays that follow live in four countries of the North Atlantic (Canada, Germany, the United States, and the United Kingdom) and work in four disciplines (law, politics, religion, and sociology). They conduct research across times and places, including on British colonial empires (Klocek and Lee), in postcolonial societies and in China (Halliday), with rebel movements in South America and South Asia (Provost), with clerics and state officials in Iran (Yassari), and with religious minorities in the United States and the United Kingdom (Moore, whose essay concludes the forum). These five scholars bring their diverse experiences to bear on the question of what comes into view when studying state building through the lens of law and religion.
Second, and building further, this forum shows that because law and religion are malleable and overlapping social categories, they can be used for instrumental purposes. The conceptual flexibility of law and religion does not mean that the words lack coherence or clarity. On the contrary, it is precisely because these words mean different things to different people—who activate them in different ways—that historical and empirical research on these concepts and their intersections is useful.
Third, the contributions that follow make clear that law is not enough to build, maintain, or challenge the state. Even in secular societies that profess a separation of religion from the state, religion can animate the state’s claims to legitimacy and the actions of those who challenge the state’s legitimacy. This occurs both in secular societies where the rule of law seems to be present and, as my work in Sudan and Somalia has shown, where the rule of law seems to be absent.
The recent eruption of violence in Khartoum never destroyed my friend Samira’s faith, or my own. This faith provides us with hope, even if our fears have hushed our hopes into a whisper, “Pray for us.” After two decades of reading and writing and devoting my professional career to studying the rule of law in those places where it is the weakest, I have learned that the rule of law never dies. Why? Because the rule of law is born from a seed of faith like Samira’s. This faith is a sacred gift bestowed upon us by the generations that came before us, and that we too leave to future generations. From this seed of faith grows a commitment to the rule of law.