Competing Legal Magic

-- By LindaMuzere - 17 Feb 2012

Introduction

Last year was an unusual year; my family celebrated Independence Day on July 9th. It was an occasion that was decades in the making. Nearly a million lives were lost in pursuit of liberty and many more displaced as collateral. I can count members of my own family as victims in both regards. But the struggle that spanned generations officially came to an end last summer when South Sudan became an independent nation.

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”. 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 believe Jerome Frank would call this fiction in reasoning “legal magic”. He writes, “Magic… was one of the ways of coping with practical problems… primitive science is founded on the conviction that experience, effort and reason are valid; magic on the belief that hope cannot fail, nor desire deceive,” (43). He goes further: “… you can present any conclusion in the guise of a mathematical formula, but that formula will not yield certainly in practical results,” (190). Essentially, law is not objectively certain and “legal magic” helps rationalize facts and circumstances to create desired outcomes that are not predictable by principles like morality and logic.

The centralized Sudanese government was able to justify its actions, which were a clear departure from the ethical values expounded in the Qur’an, by interpreting the principles of the Islamic code to reflect their political and economic desires. Rather than morality acting as a faithful decision maker, the government ensured that the means justified the ends.

On the other hand, Southern Sudan also presented its own legal magic. Even as southern insurgents rallied in opposition of the central government, the region was splintered by constant friction between ethnic groups; the largest being the Dinka. While the head of the resistance, the Dinka leader John Garang, called for a representative democracy in the North, there was a distinct lack of representation of minority groups like the Nuer and Shilluk in Southern Sudanese affairs. The legal structure that governed Southern Sudan’s westernized democracy was based on the logic of common law. However, minority interests, as guaranteed by the doctrine of equal representation, were marginalized in favor of the larger objectives of the Dinka led secession movement. Again, the predictability of legal principles was exposed as fallacy, as the circumstances of the civil uprising necessitated a departure from logic.

A Solution for the Future

South Sudan’s interim constitution is largely ineffective. It is a boilerplate template used by western democracies and does not reflect the necessities of a nation fractured by the lingering fear of a Dinka majority government and the persistent failure of unity amongst ethnic groups. Without national unity it is “transcendental nonsense”. The legal concepts in the text are meaningless without the context of the “social forces which mold the law and the social ideals by which the law is judged” (812). After talking to my parents, I see a potential answer in Felix Cohen’s “functional method”.

Both my parents were born in a small village in Southern Sudan called Kajo Kaji. However, when they reached schooling age, my mom was educated in the Islamic north, where justice and law is a reflection of morality. My father, on the other hand, studied math in English boarding schools in Uganda, where logic and reason ruled common law. However, despite having differing rationalizations regarding law and justice, they, like the rest of the region, came to the same conclusion regarding the future of South Sudan.

The horrific experience and social consequences of civil war should be avoided by all means, and future government should be structured around preventing these catastrophic results.

To some effect, this is Cohen’s “functional method”; one should first consider the consequences of legal decisions, and not the decision making principles. Legislation should be structured with regard to the social and political implications on the tribal climate of the region. This means recognizing multiple minor national languages and ensuring ethnic minorities receive fair access to social programs, government jobs, and guaranteed legal protection. The nation needs to establish a united history that transcends tribal divisions.

Conclusion

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.

I'm not sure I understand why Felix Cohen is relevant here.

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.