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LindaMuzereFirstPaper 4 - 27 Apr 2012 - Main.EbenMoglen
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Competing Legal Magic | | | What is the future of a country that just survived a vicious civil war and now faces the challenges of autonomy? How is a nation built on land that was disemboweled by combat, out of a population scattered by internal conflict and tenaciously segregated by tribal culture?
The conflict from which these questions arose could be understood as a battle of competing “legal magic”. The dichotomy of the morality based Islamic Law in the North and the logical principles of western common law in the South legitimized the tensions that created war. But with independence comes the burden of avoiding “transcendental nonsense” and establishing a body of laws and a judicial system that can unite an ethnically diverse nation, dogged by a recent resurgence of tribal warfare. As a concerned Sudanese-American I turned to my parents for resolve and found answers in the promise of Felix Cohen’s “functional method”. | |
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> | i | | | Competing Legal Magic
After nearly 60 years of Anglo-Egyptian colonialism and a series of military coups, Sudan was established as an Islamic republic by the late 80s. Despite promises not to interfere with autonomy in the south, Sudan’s centralized government extended its power to the southern border. This government, whose legal code is partially based on principles of morality in the Qur’an, implemented policies that marginalized the political representation and economic interests of the predominately black ethnic groups of the south. The North owned and operated a majority of the oil production in the South to finance operations that almost exclusively benefited the North. The government legitimized their dominance of southern tribes and the natural resources by implementing justice and claiming land in the name of the government. | | | I do not intend to understate or oversimplify the problems and externalities that plague South Sudan and other African countries. Nor do I intend to provide the magic formula for autonomy and democracy. But if law can be effective, even as a weak form of social control, there need to be changes in its conceptualization. | |
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You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable.
To restrict access to your paper simply delete the "#" character on the next two lines: | >
> | I'm not sure I understand why Felix Cohen is relevant here. | | | | |
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> | The center of the draft seems to me to be the recent history of the
Sudan seen from the perspective of the new State. Characterizing
this situation as a conflict of laws seems to me possible, but
slightly unconvincing. One can always characterize Islam as a legal
system (that being one of the respects in which it sees itself), but
this immense space is a historic borderland between ethno-cultural
systems on a time-scale longer than Islam, let alone European
imperialism. This terrain was the borderland between Egyptian
power and the tribal societies of the grasslands thousands of years
ago. It contained the enthusiasm of religious visionaries eons
before the Mahdi fought the British, and imposed its emptiness on
those who used the Nile as a road when history had not yet begun.
Borderlands are always places of brutality; our Texas is civilized in
comparison to most "Ukraines" (though only in comparison to those).
If human slavery has a beginning, this space is probably where it
began. Certainly, no matter how far it has spread, here is where it
has never left home.
So to describe the contests here over power and control as conflicts
of legal systems strikes me as a temporary way of naming the
permanent. Geography is not the only destiny, but it's more destiny
than law.
Within that context, the draft focuses on state-creation, beginning
as it does from the moment of national independence for the last (or
at any rate the latest) decolonization in Africa. Of course, as you
note, nation-states depend on national identity, and there are many
peoples in the new sub-space, as there were many peoples in the old
larger one. Multinational powers are empires; the United States has
always been one, as have China and Russia and Britain; it is rare
that an empire forges an actual nation, as "the French" have done.
But South Sudan will never be an empire, being itself a borderland,
as it will never be a nation; it can only be a place of force and
fraud. In that sense, you're obviously right that only consequences
count: principles are for places that can afford the luxury of
believing in them. Felix Cohen, at least the young legal
intellectual you met, can afford to believe that justice is the
combination of consequentialist questioning joined to "Sunday school
morality." But, as Mexicans will be happy to tell you about Tejanos,
Sunday school morality doesn't mean shit when the people who send
their kids to Sunday school believe in slavery and guns, and they can
kill you with impunity. No matter what they teach in Sunday school,
they will.
So it seems to me that the real question asked by your essay is how
to have stability without brutality. Law is the answer to that
question only once the stronger forces have been stilled or brought
into some tense balance. Cohen has nothing to offer on that subject,
at least not in the work you read, and you are quote clear about the
reasons why "constitutional law" is irrelevant. The route to a
stronger draft, therefore, seems to me to put aside Felix Cohen and
to advance directly on the issues. | | | | |
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