In legally pluralistic societies, armed conflict may be followed by tension between state and non-state justice systems that can be exacerbated or ameliorated based on how judicial statebuilding is carried out in the post-conflict setting. In Contending Orders: Legal Pluralism and the Rule of Law, Geoffrey Swenson examines this phenomenon head-on in a theoretically grounded and empirically robust fashion. Focused specifically on judicial statebuilding strategies adopted by post-conflict reformers, the book makes a valuable and timely contribution to our understanding of when and how engagement with non-state justice systems enhances the enabling environment for viable rule of law promotion. Contending Orders: Legal Pluralism and the Rule of Law advances not only the rule of law literature in the field of post-conflict peacebuilding but also its interdisciplinary connection with legal pluralism, a relationship that remains problematic even as peacebuilders increasingly turn to legal and judicial reforms to engineer positive social change in war-torn countries.
Swenson provides us a theory that explains the relationship between legal pluralism and rule of law promotion, with the role of domestic and international statebuilders in terms of their commitment to good governance and meaningful engagement with non-state actors at the core. His theory is based on four archetypes of legal pluralism: combative, competitive, cooperative, and complementary. Whereas complementary pluralism applies to stable legal orders where the state exercises strong judicial capacity and authority, Swenson conceptualizes the combative, competitive, and cooperative archetypes as varying contending orders in conflict and post-conflict environments. According to Swenson, the default condition in post-conflict settings is competitive legal pluralism wherein an autonomous non-state justice system recognizes the juridical authority of the state system, yet the two are in frequent clashes over norms and values. From this condition, the post-conflict state can either retrogress into a combative relationship or progress toward cooperative pluralism based on the commitment of statebuilders to democratic, accountable, and inclusive governance. Where this commitment is lacking, competitive pluralism becomes combative, a turn to existential hostility between state and non-state justice systems. Conversely, where statebuilders consistently demonstrate this commitment, competitive legal pluralism is succeeded by a cooperative condition that allows for “the consolidation of legitimate state authority” (p. 62). Swenson further develops five strategies—bridging, harmonization, incorporation, subsidization, and repression—that mediate legal orders post-conflict.
Empirically, Swenson draws from two paradigmatic cases—Afghanistan and Timor-Leste—to develop and apply his theory of legal pluralism, judicial statebuilding, and the rule of law. He presents these countries as examples of post-conflict environments where the default condition of competitive legal pluralism becomes either combative (Afghanistan) or cooperative (Timor-Leste) due to the decisions and attitudes of judicial statebuilders, i.e., their commitment to the rule of law and engagement with non-state justice actors.
The book is well structured into two interrelated parts. In part one, Swenson engages both the rule of law and legal pluralism literatures to situate his contribution and develop an analytical typology for explaining the relationship between state and non-state systems. Part two is the empirical section that examines domestic and international judicial statebuilding efforts in Afghanistan and Timor-Leste. The empirical case studies align very well with the three archetypes Swenson considers applicable to contemporary post-conflict environments. The analysis is supported by original empirical materials drawn from reports produced by governments, donors, international organizations, and NGOs, combined with fieldwork data that include more than forty in-depth interviews with stakeholders in both countries. Although the empirical analysis of judicial statebuilding focuses on the period of large-scale international involvement (2001–2012 in Timor-Leste and 2001–2014 in Afghanistan), each case study provides solid historical evidence and analysis of legal development that goes back to that country’s early modern founding.
International rule of law promotion in war-torn countries assumes that judicial statebuilding is appropriate and necessary for stable and lasting peace. In this problem-solving inquiry, Swenson holds this assumption to be true and then “assesses whether international aid has enhanced the prospects for developing and consolidating the rule of law” (p. 26). In addition to making this empirical assessment in two cases, Swenson offers a theoretical framework that can be applied in other legally pluralistic societies emerging from conflict.
Notwithstanding these contributions, the book has some limitations and poses some dilemmas that mirror unresolved tensions in the rule of law as a peacebuilding concept and ideal more broadly. Initially, Swenson builds on the conceptual distinction between thin and thick rule of law, arguing that the thin version is “most appropriate to assess post-conflict states” (p. 12). As a conceptual matter, I agree with Swenson that separating formal procedural components of the rule of law from its more substantive content enables the evaluation of international efforts across cases. But this raises the question as to whether such a separation is feasible in reality, both in international rule of law policy and in practice. The UN, for example, combines both procedural and substantive rule of law as the objective for undertaking judicial statebuilding in war-torn countries (see Sriram et al., Peacebuilding and the Rule of Law in Africa, 2011). Related to this thin versus thick distinction, Swenson also differentiates “progress toward building” from the actual establishment of the rule of law to argue that international efforts can be successful in countries that are “well short of even minimum rule-of-law ideals” (p. 35). Although I see the need to evaluate what has been achieved in form separate from the ideal, the issue is that such “progress” can become a substitute for the substantive rule of law, as Swenson himself acknowledges. Even if I concur that building a rule-of-law culture takes considerable time, it is hard to find in the long history of international efforts a compelling example where thick rule of law ultimately followed the establishment of thin measures.
Central to Swenson’s conceptualization of legal pluralism is the term “non-state system.” He adopts this concept in order to avoid the linguistic and normative concerns associated with alternative terms such as informal, traditional, customary, or indigenous. For Swenson, the state/non-state distinction is a value-neutral classification that allows for accurate comparative analysis of justice systems that judicial statebuilders can engage. Indeed, the consistent use of the term non-state system or actor throughout the book minimizes the confusion that comes with operationalization of any of the alternative concepts. As with the other concepts though, the state/non-state distinction remains a binary, meaning that the non-state obtains its conceptual existence and analytical content in relation to the state—the independent category. The dilemma here is not only “ambiguity at the border” (p. 42) but also the fact that a non-state system can be an invention of the state system, a critique that Swenson mounts against the other concepts. For example, the judicial state-building project under colonial indirect rule invented “traditional” justice structures that very much meet Swenson’s definition of a non-state system. Without decoupling those systems that emerged prior to or outside the statebuilding project from those entangled with that project, comparison between state and non-state justice systems is problematic. Also, while I appreciate Swenson’s effort to avoid normative judgements, this stance makes me wonder how we can identify which non-state systems judicial statebuilders should engage. Considering that legal pluralism has very little to do with justice, can judicial statebuilders determine which non-state justice systems to engage without using normative rule of law standards? Is it not in the interest of (re)building the rule of law that judicial statebuilders should avoid or question non-state systems which perpetuate injustice and impunity?
Then there is the intractable dilemma regarding how to reconcile the rule of law idea of state monopoly over law and legal pluralism which questions this prerogative of the state. Laura Grenfell has argued that legal pluralism presents a formidable challenge to the rule of law because its very existence contests the idea of state sovereign authority over law (see Grenfell, Promoting the Rule of Law in Post-conflict States, 2013). Deborah Isser also notes that preoccupation with restoration of state sovereignty in war-torn countries represents one of the biases in rule-of-law engagement with customary justice systems (Isser, Customary Justice and the Rule of Law in War-Torn Societies, 2011). Thus, the issue is more about how statebuilders engage non-state justice systems than whether they are inclined to engage. Can judicial statebuilders engage non-state systems at the expense of restoring state monopoly over law?
In applying his legal pluralism archetypes, Swenson distinguishes the post-conflict environment from other legally pluralistic societies by asserting that competitive pluralism is the default condition in the aftermath of conflict. Assuming that all countries emerge from conflict with this default condition, Swenson compares the causal impact of international judicial statebuilding in Afghanistan and Timor-Leste. I agree that war-torn countries usually end up with weak state judicial capacity and authority, which in turn enables non-state justice systems to retain a “sizeable degree of autonomy” (p. 60). But this does not necessarily mean deep tension between state and non-state justice systems as Swenson claims. For example, some states may emerge from war with a condition of legal pluralism that largely resembles the cooperative archetype, especially when the non-state justice system is not part of the insurgency or separatist movement challenging the state. In this context, the immediate post-conflict issues are confined to jurisdictional disputes and social matters that do not threaten the state’s judicial authority, an interaction that Swenson attributes only to cooperative pluralism. These war-torn countries may have much in common with Timor-Leste than Afghanistan, which seems a unique case because of some ideological connections between the Taliban as an insurgent group and the jirgas and shuras as non-state justice mechanisms. Thus, instead of predetermining a default condition, I think the question should be which circumstances determine the legal pluralism experienced in the immediate aftermath of conflict.
Despite these concerns, Contending Orders: Legal Pluralism and the Rule of Law is tremendously valuable not only for its original empirical assessment of judicial statebuilding interventions but also its creative theory building and testing efforts. In the field of peacebuilding, the book is a timely contribution to the mainstream problem-solving literature that evaluates the impact of liberal statebuilding and peacebuilding interventions with the objective of improving the efficacy of international efforts. With more than three decades of international rule of law promotion in war-torn countries, Contending Orders: Legal Pluralism and the Rule of Law helps to address the empirical knowledge gap about the impact of these measures on the ground. Although the tension between rule of law and legal pluralism remains, the book revisits this question in a manner that can rekindle dialogue between the two fields. Its framework for assessing the relationship between the rule of law and legal pluralism is indeed a valuable offer to scholars in Socio-Legal Studies, Peacebuilding, and Law, among others.
