We recently read ‘The Rule of Laws’ by Dr Fernanda Pirie, which surveys the various ways that rules and laws have been used over time to order society. The present legal system dominant in today’s Nation-States is a recent invention that obscures many other, often less formal arrangements. Dr Pirie points out that organizations ranging from villages to religious groups to trade unions still depend, as they always have, on unwritten cultural norms and various informally documented rules to make ad-hoc decisions on issues of family rights, merchant transactions, and violent offences. Members of these communities look first to their traditions and local leaders for adjudication of issues, often ignoring the formal State-sponsored courts. She paints a compelling picture of a layered legal system not controlled by anyone’s institutional power.
One of the book’s central assertions is that legal systems are often used both by the State to control the behaviour of its citizens and by Citizens claiming limits on the power of the State. Sir Edward Coke declared in 1610 that English ‘common law’ was above ‘civil law’, required the courts to annul any unreasonable parliamentary statute, and was supreme over even the King himself. King James, I responded by removing Coke as chief justice in 1616 and declaring common law to first favour the King. Nevertheless, the notion that the law itself limited the power of the monarch later became foundational, especially in the British colonies. According to Dr Pirie, China is arguably the sole major exception to this balance of power. It has successfully used legal structures for millennia to maintain social control without allowing them to constrain the actions of the rulers.
Divine law also figures prominently, guiding Hindus toward moral duties that maintain the cosmic order, Jews to shared cultural norms foundational to community and commercial trust, and Muslims to obedience in all aspects of life. John Locke and his contemporaries appealed to Christian Biblical principles in explaining that ‘natural law’ is placed in the conscience of all humans to govern their relations. This justification of God-ordained norms, rules, and laws is compelling to people of faith globally who perceive their national governments as exalting themselves over the most basic rights of their Citizens.
We have seen this multi-layered system of norms and laws first-hand in our overseas work. The Communist Party in Vietnam largely frames policy and associated legal regimes, and its members occupy most senior institutional positions. The Citizens can freely avail themselves of the courts, although corruption often figures prominently in judicial decisions. We did our economic development work among poor farming families deep in the Mekong Delta who have limited access to the legal system, and among minority groups for whom religious expression is important but discouraged by the government. In both cases, disagreements and questions of legality were typically resolved within the local community amidst a formal or informal council of peers. Decisions, legal principles, and precedents were rarely written down, but they were entrusted to group memory and helped structure everyone’s expectations for acceptable behaviour. As in other cultures, those who refused to abide by the norms were shunned by the community and found themselves losing other benefits that accrue to trusted members in good standing. Additionally, particularly in the case of faith expression, it was difficult for the government to monitor and prosecute what did not exist in written form – a point Dr. Pirie makes as well.
We have also observed systems of justice and enforcement as practised among the First Nations people in Canada. Elders seek to drive consensus decisions among all parties to a conflict, and select punishments that are custom designed to help a person re-centre on their purpose and place in the community. There is again no written code, and this affords tremendous flexibility to tailor outcomes that reinforce social norms.
We would add that community rules for self-governance (what we have called elsewhere the ‘social contract’) often do not get the respect they deserve in many international institutions seeking to organize the world according to an advanced ‘Western’ or Nation-State governance model. Academics and policy-makers seem endlessly surprised by the rapidity of Afghanistan’s collapse, the persistence of the ‘underground church, and the election of persons to high office despite being charged with crimes against humanity. Just because institutions of Western form are in place does not mean they are effective or will be respected by the Citizens.
Allison and Zibima published an interesting paper titled ‘Bring Back our Corruption’ documenting the counter-campaign against the anti-corruption efforts of President Buhari in Nigeria. They found that for the most economically-vulnerable Nigerians “…proceeds from public sector corruption may be performing a crucial wealth redistribution function in the absence of adequate formal welfare measures in Nigeria.” The results transcended ethnic, religious, and geographic populations in the country, and suggest the success of the patron-client arrangements pervasive in cultures with tight tribal connections.