Legal Pluralism

The concept of legal pluralism was introduced in the 1970s and quickly became one of the central notions in legal anthropology and socio-legal studies.Footnote ⁶ At the same time, the concept has become a subject of emotionally loaded, heated debates. For example, legal scholar Brian Tamanaha wrote an influential critical article titled “The folly of the ‘social scientific’ concept of legal pluralism.” On the other side, anthropologist Franz von Benda-Beckmann published an article “Who is afraid of legal pluralism?”Footnote ⁷

The fundamental issue at stake in this debate is the definition of “law.” What is law? Can non-state systems of private ordering be considered law? The origin of the debate can be traced to one of the classics of anthropology, Bronislaw Malinowski’s Crime and custom in savage society, where he investigated how “primitive societies” maintained order without European law. Malinowski concluded that law among the Trobriand of Melanesia was not to be found in “central authority, codes, courts, and constables,” but rather in social relations or regularized conduct and patterns of behavior. In the same spirit, anthropologist Leopold Pospisil concluded that “every functioning subgroup in the society has its own legal system,” and Laura Nader and Harry Todd stated in their book on disputes: “Not all law takes place in courts.”Footnote ⁸ The problem with this approach to law, however, is that it is so broad that it often makes it indistinguishable from social norms.

I follow the realist approach that defines law through enforcement. Max Weber, the founder of this tradition, wrote that “an order will be called law if it is externally guaranteed by the probability that coercion (physical or psychological), to bring about conformity or avenge violation, will be applied by a staff of people holding themselves specially ready for that purpose.”Footnote ⁹ Legal anthropologist E. Adamson Hoebel extended this definition to capture non-state legal systems. He wrote: “A social norm is legal if its neglect or infraction is regularly met, in threat or in fact, by the application of physical force by an individual or group possessing the socially recognized privilege of so acting.”Footnote ¹⁰ Hoebel’s definition delinks custom from culture by emphasizing the role of authority and sanctions in the functioning of non-state legal systems.Footnote ¹¹ Following this tradition, I understand both state and non-state systems of justice, based on custom and religion, as legal systems insofar as they include sets of procedural and substantive rules, institutions, and personnel for inducing or enforcing compliance with their rules. Customary and religious legal systems, though, have a distinct nature, and there are important caveats to be made to this claim.

The scholarship in law and society studies shows that in many instances what is labeled “customary law” is not customary or traditional, but instead the product of colonial encounters and imagination.Footnote ¹² For example, Francis Snyder has shown how French colonizers created “customary law” in Senegal to advance their economic interests through their own ideology of land ownership. Mahmood Mamdani has argued that the colonial powers’ appropriation and transformation of customary law strengthened local elites – chiefs, who dramatically increased their despotic power. More generally, the codification and selective interpretations of customary law by colonial powers and their local intermediaries fundamentally changed the nature of indigenous dispute resolution. Consequently, customary law, as we know it in its contemporary manifestation, should be considered as a historically specific product of colonialism. Thus, one has to be careful when talking about the “customary” in customary law. However, this does not mean that customary law must be rejected as a legal system altogether. Substantive norms of customary law are often based on the principles of agnatic kinship. Most importantly, customary law assumes that the subject of law is the family or clan, rather than the individual. Perhaps the best known example of customary law is the Pashtun tribal code Pashtunwali. Customary law, though, is not necessarily tied to lineage groups and can be organized territorially.Footnote ¹³ Authorities in charge of customary dispute resolution are usually lineage or community elders and chiefs of different names. Enforcement in customary law is based on social pressure, withdrawal of social status, ostracism, and direct violence, for example through blood feuds.

Similarly, there is the issue of whether religious arbitration can be recognized as legal in the full sense of the term. We saw that this is often the case with religious arbitration in the United States, in the beginning of the chapter. Religious organizations in postcolonial situations usually have even larger regulatory power through a combination of elaborated norms, specialized authorities, and enforcement. This is especially pronounced in the case of Islam. Muslims around the world view Sharia as a “total discourse,”Footnote ¹⁴ that is, the most encompassing regulations of all spheres of life, including the legal sphere. As Mounira Charrad states, “Being a Muslim entails accepting a system of jurisprudence.”Footnote ¹⁵ Sharia is based on the Koran and Sunna – the sayings and deeds of the Prophet Muhammad. Historical and anthropological research has shown that Sharia is not just a set of rules, but also a set of social practices, institutions, and personnel.Footnote ¹⁶ Islamic law has been characterized as a broad cultural system, which determines ideas about truth, rights, and specialized personhood.Footnote ¹⁷ Matthew Erie in his study of the interrelationship between state law and Sharia in China argues that locals perceive Sharia as law and, therefore, that it should be considered law. One of his interlocutors put it very sharply: “We consider it law. If we fail to abide by what the Qur’an says in this life, then we will be punished in the afterlife …. If you don’t think these are law, then you don’t understand Islam.”Footnote ¹⁸

After going through these murky conceptual issues of legal pluralism, the next challenge is to decide how to study it. Many theoretical accounts of legal pluralism across disciplines focus on the description of the complex relationships between state and non-state legal systems. For example, there is a lasting theoretical distinction between weak and strong legal pluralism.Footnote ¹⁹ The former occurs when the state regulates or even incorporates non-state legal systems, and the latter when state and non-state legal systems operate in parallel independently from each other. However, any society under legal pluralism is characterized by the profound mutual influence of state law and non-state legal systems. Anthropologist Sally Falk Moore highlighted these interdependencies with the concept of the semi-autonomous social field.Footnote ²⁰ To reflect these interdependencies, I assume that state and non-state legal systems jointly constitute legal order.

In political science, Gretchen Helmke and Steven Levitsky conceptualize legal pluralism in their typology of the interactions between formal and informal institutions. They distinguish four patterns of interactions: complementary, accommodating, competing, and substitutive. The authors put legal pluralism in the box of competing interactions, since state and non-state legal systems embody qualitatively different principles and procedures and, as a result, “adherence to custom law at times required a violation of state law (and vice versa).”Footnote ²¹ Another typology, developed by Geoffrey Swenson, distinguishes between combative, competitive, cooperative, and complementary paradigms of legal pluralism.Footnote ²² These approaches provide good descriptive frameworks, but leave little space for analyzing the motivations of actors who have to navigate state and non-state legal systems: politicians, government officials, communal elites, families, and individuals. Without attending to the actors, we cannot fully understand where state and non-state institutions come from, how they are sustained, and why they change.

To capture the agency dimension of legal pluralism, I borrow Mark Massoud’s concept of legal politics. Massoud defines legal politics as “the use and promotion of legal tools, practices, arrangements, and resources to achieve political, social, or economic objectives.”Footnote ²³ Legal politics can be both top-down – carried out by state rulers and other elites – and bottom-up or associated with individual uses of a legal system to advance one’s interests and rights. Taken together, legal politics from above and from below are a rough equivalent of the anthropological notion of lawfare as the use of law to achieve political ends.Footnote ²⁴ I apply the concept of lawfare to the conditions of legal pluralism. I thus focus on the use of both state and non-state legal systems, especially in situations of jurisdictional conflicts between them. Related to this is the historical notion of jurisdictional politics, understood as “conflicts over the preservation, creation, nature, and extent of different legal forums and authorities.”Footnote ²⁵ In this book, I use the concepts of lawfare, legal politics, and jurisdictional politics interchangeably to study and explain how political actors and lay individuals navigate legal pluralism. Legal pluralism is about the fragmented nature of social control — the horizontal division of power between the state and non-state social forces. Next, I consider the vertical divisions within the state itself.

Nested Sovereignty

State-building understood through the lens of social control – as the capacity to penetrate society – relies on the classic Weberian notion of the state as “a monopoly of authoritative binding rule-making, backed up by a monopoly of the means of physical violence.”Footnote ²⁶ One of Weber’s key requirements for the modern state is separation of public law from private law, that is, non-state legal systems. Even though this approach is canonical, it can be productively criticized for relying on an overly simplified idea of the state. For instance, historian Paul Halliday wrote, “For all legal pluralism’s sharp critique of state centrism, that critique was made possible only by accepting the hoariest conception of the state: the so-called Westphalian model of internally coherent, territorially defined states.”Footnote ²⁷ This model of exclusive state control over political decisions made on state territory has always been more of an ideal or myth than reality.

Migdal too has criticized the view of the state as if it were “a coherent, integrated, and goal-oriented body.”Footnote ²⁸ This view, Migdal stresses, is about the image of the state. State practices are very different from this image and may even directly contradict it. In practice, various parts or fragments of the state might ally with societal groups outside the state to advance their political and economic interests. This distorts the neat distinction between the private and public spheres. It also leads to the paradoxical situation in which the state is an internally contradictory entity, parts of which can work in contrary directions and support conflicting forms of social control, which thus seem to undermine state sovereignty. Anna Grzymala-Busse and Pauline Jones argued that this perspective is true for the post-communist state, which is neither centralized nor coherent, and characterized by multiple centers of authority-building. In addition, the boundary between state and society is often blurred.Footnote ²⁹

In this book, state sovereignty is envisioned as nested. I focus on the territorial organization of the state – whether in the guise of empire and colonialism as in the past, or in the guise of federalism as in the present. While it is true that even unitary states are internally fragmented, the formalization of this nested sovereignty in empire and federalism crystallizes state fragmentation.

The classic form of nested sovereignty is empire. Nowadays empires have been replaced by nation-states, but throughout history, empires have been the dominant form of political organization and occupied the central place in political imagination. Historically, legal pluralism was often the product of empires. Lauren Benton and Richard Ross have noted that empires “invariably relied on layered legal arrangements within composite polities.”Footnote ³⁰ This is not surprising given that the very concept of empire assumes that different peoples within the polity will be governed differently. In other words, managing diversity was a major governing principle of empire. Furthermore, law as “the cutting edge of colonialism” was a key tool for organizing this difference and maintaining social, religious, ethnic, and racial boundaries in imperial projects.Footnote ³¹

Empires were legally plural both in their core regions, which were considered “homeland” (for example, provinces in France, confessional assemblies in the Ottoman Empire, corporations in England and the Netherlands), and in their overseas colonies.Footnote ³² Historical sociologist Karen Barkey writes that “Empires were forced to deal with this plurality because of the manner in which they expanded, incorporating and accommodating local cultures at different times and under different circumstances in a piecemeal way.”Footnote ³³ As an example, she explores how the Ottoman Empire ruled religious minorities through the millet system – community self-governance that included religious courts for Christian and Jewish subjects of the sultan.

Jane Burbank and Frederic Cooper, other leading historians of empire, have highlighted that “In legal matters, as in military and economic ones, the most critical challenge for empires was securing the effective and loyal service from intermediaries.”Footnote ³⁴ They have shown that imperial intermediaries could take on different guises: a governor, a general, a tax collector, as well as a tribal representative, a cleric, a colonial official, a local notable, a judge – indeed, of anyone in charge of actual day-to-day governance. Empires always had multiple legal arenas: courts, advisory councils, religious institutions, imperial commissions, regional administrations, etc. In all of these venues, intermediaries were caught in contradictory positions that required them “simultaneously to maintain their own community’s law and to yield to the law of the imperial power.”Footnote ³⁵

In empires, local authorities sometimes sought “to broaden jurisdictional claims of the colonizers in order to push for cultural inclusiveness” and sometimes defended and reinvented “traditional authorities” as a way to increase their own autonomy by “creating special status” regimes.Footnote ³⁶ Preserving cultural and legal differences made the intermediaries’ work indispensable to the metropole and local population, and so re-entrenched their authority. This fluid and complex nature of imperial legal orders further gave local leaders room to maneuver vis-à-vis the metropole, other local elites, and the population in general. Thus, local political elites were key players in the formation of legal pluralism. For example, Iza Hussin documents how local elites in India, Egypt, and Malaysia negotiated the scope, content, and application of laws with the British colonial authorities. Hussin clearly shows that the autonomy these local elites negotiated over the matters of family life, religion, and culture, became the major source of their power.Footnote ³⁷

Even after empires left the world stage in the mid-twentieth century, nation-state has not simply become the only form of political organization. Federalism is another major contemporary political alternative. A federation can be defined as “a layered form of sovereignty in which some powers rest in separate political units while others are located at the center.”Footnote ³⁸ The most prominent theories of federalism link it to the historical experience of the United States and highlight its contractual nature. However, the majority of the world’s population today live in federal polities that emerged as a result of post-imperial transformations and devolutions (e.g., India, Pakistan, Brazil, South Africa, Russia, Malaysia). This fact allows historian Alexander Semyonov to argue that federal political arrangements are “a direct consequence of imperial diversity” and that they “often reveal the same challenges of ethno-territorial nationalism, uneven development, and de facto layered citizenships.”Footnote ³⁹ Thus, the link between legal pluralism and federalism is no less theoretically relevant than the role of legal pluralism in empires. In both arrangements, local rulers – intermediaries between the metropole, the federal center, communal elites, and the rest of the population – are cemented as the key actors of the politics of legal pluralism. This reiterates the wisdom that “all state formation is in essence local.”Footnote ⁴⁰

Gender Cleavage

State-building lawfare is especially contested in the domain of family law. This calls for a gendered perspective on state-building. I rely on the definition developed by Mala Htun and Lauren Weldon: “Gender is not just an attribute of individual identity or a type of performance but a collection of institutions: a set of rules, norms, and practices, widely held and somewhat predictable – though not uncontested – that constructs what it means to be or to belong to a particular sex group.”Footnote ⁴¹ Contestations over these rules, norms, and practices constitute the key cleavage of state-building lawfare.

The state was a latecomer to the regulation of family life. Htun and Weldon described this process in the following way:

State rulers indeed chose different trajectories of state-building in the domain of family law. For example, Mounira Charrad has shown how the leadership of postcolonial Morocco adopted a conservative version of Islamic family law to appease the patriarchal interests of the rural tribal elites, while central leaders in Tunisia, who were relatively autonomous from kin groupings, introduced secularized egalitarian family law to further undermine tribal authorities.Footnote ⁴³

Jurisdictional conflicts over family life have large distributional consequences. The dominant interpretations of customary law are often explicitly discriminatory toward women.Footnote ⁴⁴ For instance, in Morocco under the 1900 version of some customary codes, Berber women had no inheritance rights, no property rights, no right to consent, no minimum marriageable age, and no right for divorce. Similarly, according to Kabyle customary law, which was applied among the Berbers of Algeria until the national Family Code was enacted in 1984, women had no rights to inheritance, no property rights, and practically no custody rights over their children.Footnote ⁴⁵

It is widely believed that Islamic law also puts women in a disadvantaged position. Originally Sharia brought a major improvement in women’s status over the customary practices prevalent in pre-Islamic Arabia. For instance, women obtained a right for a fixed share of inheritance and were allowed to own and manage property, including the dower. Historical and anthropological research has also shown that Islamic law gives women agency to protect their rights: women often successfully mobilize Islamic legal notions to improve their living conditions.Footnote ⁴⁶ At the same time, gender inequality remains an integral part of Islamic family law, especially when it is appropriated and enforced by the state.Footnote ⁴⁷ As Charrad shows, “Islamic family law places women in subordinate status by giving power over women to men as husbands and male kin.”Footnote ⁴⁸ Women are required to obey their husbands, care for children, and do housekeeping. Men have the right to control their wives’ behavior, such as when and how they go out in public. Women receive half of the amount of inheritance of male shares. Polygamy is an obvious factor of gender inequality, too. Men also enjoy far greater rights to divorce and are the legal guardians of their children. In some places, state codifications of Islamic law reformed these provisions toward greater equality, but according to Htun and Weldon’s analysis, Muslim women’s legal disadvantages persist.Footnote ⁴⁹

Western civil and common law systems also have been explicitly discriminatory toward women for the greater part of history. The Napoleonic Code adopted in many countries stated that the wife owes obedience to her husband. A husband had control over the property and activities of his wife. Most Catholic countries in Europe and Latin America did not permit divorce until the mid- to late-twentieth century.Footnote ⁵⁰ Western statutory codes started to move toward gender equality in the late nineteenth century. However, the changes were incremental and slow, and in some places, for instance, Switzerland, were not completed until the late twentieth century.Footnote ⁵¹

Colonialism brought Western statutory law overseas and imposed it onto indigenous legal systems. As a result, the link between family and gender and state-building has been profoundly shaped by colonialism. Colonial powers codified diverse and fluid indigenous practices of family law, thereby also inventing the traditions and forging the communities that this law was applied to. What was codified were often conservative versions of the kinship rules. For example, Iza Hussin documented how local matriarchal laws in some parts of colonial Malaysia were replaced by more patriarchal customs by the British.Footnote ⁵² In addition, colonialism endowed traditional leaders with the authority to apply these conservative rules. And precisely because colonialism made traditional leaders impotent in all other domains, these traditional rulers fell with even more gusto on the policing of gender and family relations, which had become indispensable for their preservation as local elites.

According to Htun and Weldon, the experience of communism had the opposite effect to that of colonialism. Guided by ideological doctrine, communist governments “sought to reduce religious power and expand women’s rights. They replaced conservative family laws with egalitarian models, which endured for the most part into the postcommunist era.”Footnote ⁵³ For example, Vietnam’s Marriage and Family Law of 1959 banned forced marriages, child marriages, and polygamy as well as introduced equality between men and women in rights, obligations, property, and parenting. Communist transformations of family law aimed to destroy the power of traditional and religious elites, as well as to ensure women’s participation in the labor force.

The struggles for social control in family matters have always been especially politicized in the peripheries where the population is culturally distinct. For example, Jonathan Wyrtzen documents how French colonial authorities in Morocco used discrepancies in women’s status in customary and Islamic legal systems to reify an ethnic division between Berbers and Arabs.Footnote ⁵⁴ Moreover, local communal authorities have a lot at stake in these classification struggles. Ceren Belge shows that the power of the clans in the Kurdish periphery of Turkey and the Palestinian periphery of Israel rests on “certain family practices, such as early, arranged, endogamous and polygamous marriages, the withholding of inheritance rights from women, and under certain conditions, the murder of female members that harm the family reputation.”Footnote ⁵⁵ Thus, communal authorities and extended families, along with women often organized in groups or involved in movements, are the crucial actors of gendered state-building lawfare.

Both the gender cleavage (key societal divide) and the nested sovereignty (key political divide) are actualized in response to the armed conflict. Thus, conflict is the last building block we need to have for a theory of state-building lawfare.

Order, Conflict, and Violence

Internal armed conflict might seem like the exact opposite of state-building, understood as bringing social and political order. Yet, conflict and order are not just opposites, but also interrelated phenomena. Dan Slater has explained the divergence in state-building forms in Southeast Asia drawing on the legacies of contentious politics, including internal armed conflict.Footnote ⁵⁶ Douglass North and his coauthors similarly claim that social order arises from elite efforts to curb violence.Footnote ⁵⁷ These studies have challenged the consensus that internal conflicts are the “wrong kind of wars” for state-building in contrast to external warfare, which has long been theorized as a major driver of state formation, at least in Europe.

Furthermore, order exists amidst conflict. Ana Arjona has highlighted that despite the fact that conflict is associated with chaos, order is often established and maintained at the community level through “social contracts” between rebels and civilians.Footnote ⁵⁸ Relatedly, Zachariah Mampilly writes that rebels acting as a counterstate can produce social and political orders by constructing effective governance structures.Footnote ⁵⁹ Both authors distinguish dispute resolution systems as a key strategic element in rebel social order. Developing this line of reasoning, Paul Staniland argues that the absence of the monopoly on violence does not mean “disorder” or “incomplete state-building,” but instead represents “its own distinctive form of order.”Footnote ⁶⁰ Order established during conflicts naturally leaves some mark even after the conflict. For example, Regina Bateson shows how experiences of violence during armed conflict affected postwar social order in the practices of dealing with crime in Guatemala.Footnote ⁶¹

I focus on the social and political legacies of separatist conflict. Separatist armed conflict is a culmination of the struggle for local autonomy between the center and the periphery. Separatism fractures sovereignty and politicizes the issue of law and more generally, the system of governance emerging in the periphery. The legacies of separatist conflict actualize in the behavior of government officials, social organizations, and individuals during contestations for social control. It is important to note though that conflict is not just about violence. It is a complex phenomenon that embodies many components and takes many different forms, including mobilization, recruitment, military organization, territorial control, etc. In order to make conflict legible for further analysis, I rely on Elisabeth Wood’s framework of the social processes of conflict. Wood defines the social processes of conflict as “the transformation of social actors, structures, norms, and practices, that happen as a result of civil war violence.”Footnote ⁶²

Conflict manifests differently at the different levels of aggregation of social life. Often the society-wide master cleavage, including the separatist conflict that contests sovereignty, is not meaningful at the local level, where vendettas and political competition might dominate the nature of violence in particular communities.Footnote ⁶³ Similarly, the social and political processes of civil war differ at the different levels of aggregation. At the individual and community levels, the most pronounced social processes of war are triggered by violence against civilians. Although there are many forms of violence and many actors who perpetrate it, I concentrate primarily on collective violence perpetrated by the state. Collective violence is a form of targeting civilians based on group identity (e.g., ethnicity X) or community (e.g., village Y).Footnote ⁶⁴ Collective violence is especially likely to leave lasting social legacies for individuals and communities. For example, historian Max Bergholz highlights how the collective violence in Bosnia during World War II was “a generative force in transforming the identities, relations, and lives of the many.”Footnote ⁶⁵ The secessionist nature of conflict makes it more likely that the state will employ collective violence based on an ascriptive identity that lay behind separatism rather than individual political allegiance and behavior.Footnote ⁶⁶

The legacies of violence are conditioned by local political and social contexts. The social context of violence is determined first and foremost by the characteristics of communities. Community is a key level of analysis in the study of political violence because the state victimizes communities with its collective violence and the communities often serve as the organizational knots of resistance. Victimization at the community level is not merely an aggregation of individual victimizations because it affects not only individuals, but also the relations between them: social networks, roles, hierarchies, and authority structures.Footnote ⁶⁷

The macro-perspective on separatist conflict is about who won the war – the center or the periphery – and no less importantly, how the war ended. International relations scholars have shown that the form of war termination determines the postwar distribution of power resources.Footnote ⁶⁸ The major distinction drawn in this scholarship is between decisive military victory and negotiated settlement or stalemate. This multilevel conceptualization of conflict allows me to encompass the transformations of both political and social orders that lay the foundation for peripheral state-building. Let me start with political order.

The Politics of Legal Pluralism

The standard view, derived from Max Weber’s work, suggests that rulers should seek to monopolize social control and oppose alternative non-state legal institutions. As Yüksel Sezgin puts it: “the ability to establish a monopolistic control over the legal affairs of a subject population has come to be viewed as an inseparable aspect of stateness.”Footnote ⁷⁰ Yet, political leaders adopt different approaches toward non-state legal systems. Most generally, a ruler who governs a society under legal pluralism has three broad potential policy approaches toward non-state legal systems:

The suppression strategy is the most consistent with the Weberian ideal of state-building. Gradual suppression of non-state legal systems was a path to state-building for many European states. Ataturk’s abolishment of Sharia law in Turkey and Nyerere’s ban of customary law in Tanzania are more recent examples of the suppression strategy.

The promotion strategy requires active government support for non-state legal systems. This support can be either formal – through the official recognition of non-state legal forums and constitutionalization of them, like in Namibia, Ghana, Uganda, or Israel – or informal, through de facto support, for instance, of the provision of material and symbolic benefits to non-state authorities and concessions in the cases of jurisdictional conflicts.

The tolerance or nonintervention strategy occurs when the government in charge of state law neither suppresses nor promotes non-state legal systems. This approach describes a situation in which state and non-state legal institutions function in parallel, like the state and traditional authorities in contemporary Afghanistan.

What factors determine the approach a leader would take? The most obvious factor is state capacity. Some states just do not have the coercive capacity to eradicate non-state legal forums and lack the administrative capacity to build an effective state legal system.Footnote ⁷² Weak state capacity is therefore likely to be associated with either tolerance or promotion approaches. A version of this argument is the path dependence explanation, which proposes that places with established forms of non-state authority in the past, often as a result of colonialism, will continue to have them subsequently.Footnote ⁷³

Leaders’ or more broadly regimes’ ideology also affects the adoption of an interventionist approach: either suppression or promotion.Footnote ⁷⁴ From the standpoint of a progressive ruler, the presence of customary or religious law might be seen as a legacy of colonialism, an indicator of backwardness, and a form of discrimination against religious, ethnic, and other social groups. These considerations motivated some post-independence political leaders to suppress non-state legal institutions and unify the legal system. Examples of this ideology-driven approach can be found across the world from India and Indonesia to Tunisia and Nigeria. The Marxist-leaning leaders who ruled Tanzania, Ethiopia, Guinea, and Mozambique were especially radical in their attempts to eradicate “the rudiments of the past.” In contrast, if a leader holds a strong traditionalist or religious ideology, they are likely to preserve legal pluralism and promote legal systems based on religion and custom. Rulers might also promote legal pluralism if they hold an exclusionary ideology that aims to “preserve and reinforce existing ethnic, sectarian, and linguistic divisions among their subjects.”Footnote ⁷⁵ Most colonial regimes and contemporary Israel and Lebanon exemplify this situation.

A policy toward non-state legal systems can also be a response to popular demand. In a democratic polity in which the median voter prefers legal institutions based on tradition and religion, a ruler is likely to promote them in order to win the popular vote. Kate Baldwin refers to this idea as “the most simple” explanation for political promotion of traditional authorities in the wake of democratization across different African counties. It goes as follows: “rural dwellers have inherent preferences for a strong chieftaincy, and therefore, governments that depend on rural support will empower traditional leaders as a direct response to rural preferences.”Footnote ⁷⁶ Donna Lee Van Cott similarly attributes the resurgence of informal justice in Latin America to the intense pressure from indigenous organizations.Footnote ⁷⁷ Politicians might also promote legal pluralism to win the support of traditional and religious elites, who can act as brokers for electoral mobilization.

State capacity, ideology, and popular demands all matter for the politics of legal pluralism. However, existing explanations of the persistence of legal pluralism rare out the conditions of nested sovereignty and conflict environment. I argue that under these conditions, local rulers' policies toward non-state legal systems can be best understood as a part of their quest for political control in the periphery.Footnote ⁷⁸

Legal Pluralism and Political Control in the Periphery

In the most general terms, legal pluralism can be presented as the struggle for social control between state and society. However, as I outlined above, this view is too simplistic. “State” and “society” can hardly be taken as unitary actors. The conditions of nested sovereignty especially complicate the picture. The cast is simply too multifarious, including at the very minimum 1) the metropole or the federal center, 2) the local ruler or intermediary of the center in the periphery, 3) local elites who function as communal authorities in charge of non-state dispute resolution as well as other elite groups, and 4) the general population with diverse preferences for social order.

In the past, imperial and colonial authorities often promoted legal pluralism due to weak state capacity or ideology, or as a part of a divide-and-rule policy. At present, many central political authorities are driven by similar motivations as well as by popular demand. However, contemporary states are also bound by the image of stateness and as a result are more likely to prefer the promotion of state law as the law of the land to ensure control over the periphery. Contrastingly, communal elites in peripheries are more likely to promote non-state legal systems. Sandwiched between the metropole and the communal elites are local state rulers. These rulers have to strategically reconcile demands of the state and those of the communal elites and segments of the population in these peripheral regions. Thus, they form the central focus of my analysis. This is in line with the historical analysis of nested sovereignty that has highlighted the crucial role of imperial intermediaries and the notion that all state-building is local.

Local rulers in the periphery are caught in what international relations theorist David Lake has called the State-Builder’s Dilemma.Footnote ⁷⁹ Lake emphasizes that local rulers have to make a trade-off between loyalty to the interest of the metropole and legitimacy in the eyes of the local population. The radical version of this dilemma under legal pluralism occurs when the metropole demands a strict monopoly for state law and the local population demands non-state justice based on tradition and religion. Lake’s focus is on the central state-builder, for whom there is no solution to the dilemma. In contrast, I focus on the local ruler. For the local ruler, the solution to the problem rests on their relative dependency on the metropole versus popular support. If a ruler has room to maneuver, then the promotion of legal pluralism might be their best bet. Legal pluralism can increase a local ruler’s legitimacy and curb the enthusiasm of the central authorities to intervene in their domain.

However, in addition to managing vertical power relations – upward with regard to the center and downward with regard to the population – the local ruler also has to navigate horizontal relations with other local elites. From these other elites, the ruler has to form coalitions of support. At the same time, these other elites can politically challenge the ruler and destabilize the local political order. We thus run into another crucial dilemma. If a ruler empowers non-state legal forums, say to make the population happy or to keep the central authorities at bay, these forums may be hijacked by potential challengers to their rule or even become the challengers themselves. In other words, the strategy of promoting legal pluralism can have a “Frankenstein” effect. William Reno formulated this sentiment in its most general way. He wrote that the key reason that leaders prefer weak formal and informal institutions “lies in their fear that enterprising rivals could use control over successful institutions” to challenge their rule.Footnote ⁸⁰ This dilemma calls one to consider the local ruler’s coalition formation and the balance of power between the local ruler and other elites. Thus, I propose focusing on three key areas in which legal and political orders overlap and where a local ruler’s political survival is determined: legitimation, boundary control, and coalition-building.

Typically, the first thought that comes to mind when we want to explain a ruler’s promotion of non-state legal systems is that of legitimacy. The reasoning here is that non-state legal institutions rooted in custom and religion ensure a local ruler’s control over the masses because they often enjoy high legitimacy. Yet, legitimacy is a “mushy” concept that can lure social scientists into a trap of tautological explanation.Footnote ⁸¹ In the case of the promotion of non-state legal systems, understanding legitimation is relatively straightforward. It is an appeal to authority — such as religion or tradition — external to the claimant making an appeal. In other words, a local ruler “borrows” legitimacy from religion and tradition. This reasoning relies on the assumptions that tradition and religion enjoy high support among the population, and that this support is independent from the government’s promotion of the authorities in charge of religious and traditional institutions. If these assumptions are not met, then reference to legitimacy falls into the category of circular explanation.

Second, political power within nested sovereignty necessitates the establishment and maintenance of local autonomy – insulation from challenges from the center. This is a key consideration for the subnational regimes in federal polities that need to protect themselves from interventions by the central government. But it is also relevant for postcolonial nation-states because external actors, such as former metropoles, international organizations, and corporations, all play important roles in local state–society relations and struggles for power.

Edward Gibson, who developed a theory of boundary control, claims that “In any large-scale system of territorial governance political institutions are entangled across space. Strategies of political control are thus never limited to any single arena.”Footnote ⁸² In other words, the rulers must navigate challenges from local opposition as well as the threat of external intervention. In order to survive these two types of threats, Gibson argues, the leaders of subnational regimes are constantly engaged in strategies of boundary control – e.g., maximization of incumbent influence over local politics and prevention of external intervention in local affairs.

I argue that boundary control can also be achieved by the promotion of legal pluralism. The promotion of legal pluralism serves as a tool of “parochialization of power” in Gibson’s terms. In the case of a postcolonial national political unit, a ruler who promotes customary or religious law distances their country from the former colonial power or “international community” that usually stands for “the rule of law,” commonly understood as Western statutory law. In the case of a subnational political unit, a local ruler who promotes customary or religious law increases the autonomy of their region from the federal center that stands for the national legal system. For instance, in Nigeria, politicians from the Northern states at different points in time promoted Sharia as a means of ensuring their autonomy from the center, which was dominated by Christian administrative and economic elites.Footnote ⁸³

Third, support for non-state legal systems can serve as a tool in the ruler’s coalition-building and more broadly, relations with other elite actors. Support for non-state legal systems can be used to co-opt the communal authorities into the ruler’s political machine. In other words, governments can strengthen traditional and religious authorities to create powerful brokers who can use coercion, deference, and material incentives to mobilize support for the rulers.Footnote ⁸⁴

In this light, it is not surprising that cooptation of communal elites has been a common strategy for many political leaders across time and space. For example, Daniel Mattingly presents a comprehensive account of how the Chinese state uses communal elites and associations such as clan lineages and religious groups in order to ensure informal political control in rural areas.Footnote ⁸⁵ This strategy, moreover, is not limited to authoritarian states. For instance, in post-Suharto Indonesia, state elites accommodate Islamist movements by enacting Sharia regulations in order to increase their symbolic capital, gain economic benefits, and mobilize the electorate.Footnote ⁸⁶ In South Africa the ruling party African National Congress supports customary law arbitration by chiefs because chiefs are effective agents of electoral mobilization.Footnote ⁸⁷ Similar alliances have been historically common in many other sub-Saharan African countries, where chiefs have been placed in charge of both dispute arbitration and electoral mobilization.Footnote ⁸⁸

However, not all elite actors are prone to cooptation. State-building from above often takes the form of elite competition. Grzymala-Busse and Jones centered this insight in their definition of state formation as “elite competition over the authority to create the structural framework through which policies are made and enforced.”Footnote ⁸⁹ Therefore, it is crucial to consider the balance of power or relative strength of the local ruler vis-à-vis potential elite challengers and the composition of these potential challengers. I assume that if their rule is consolidated and there are no viable challengers, a local ruler is likely to promote non-state legal systems to gain additional legitimacy, increase its autonomy from the metropole, and co-opt communal elites. China and the dominant party regime in South Africa illustrate the point that strongly consolidated regimes engage in the promotion of legal pluralism and non-state authorities.

If the ruler dominates the potential challengers in terms of political power, but a potential challenge is still viable, the ruler can be expected to abstain from promoting non-state legal institutions or even to suppress them out of the fear that these alternatives forums of power might be hijacked by a challenger or pose a challenge themselves. For example, in Egypt, Nasser abolished religious courts in part to “break down the independent political power of religious authorities who had opposed his revolutionary agenda.”Footnote ⁹⁰ In turn, if the ruler is rather weak or challenged, then their approach toward legal pluralism is conditional on who is behind the challenge. If traditional authorities support the challenge, the ruler is likely to try to suppress them. If the challenge comes from elsewhere, the ruler can promote non-state legal authorities in order to build an alternative ruling coalition. For instance, in Sudan in 1983 President Nimeiri imposed Sharia law in “a futile attempt to save his failing presidency” after economic crises and a challenge from the liberal opposition.Footnote ⁹¹

All dimensions of the politics of legal pluralism are closely interdependent. For example, the greater the ruler’s control over the population and elites, the more autonomy the ruler can ensure from the metropole. In order to separate these factors and analyze the role of the balance of power on the strategic use of legal pluralism, I focus on the transformative effects of conflict. Conflict presents a shock to entrenched political systems. It influences the dimensions of political order such as autonomy from the center, legitimacy, and the ruler’s coalition-building. Focusing on these changes allows one to observe the relationships between different components of political order, and thus further explore the seemingly intractable dilemmas of state-building.

Legal Pluralism and Political Control after Conflict

Separatist conflict as a culmination of the confrontation between center and periphery is likely to make local autonomy the key political issue. Therefore, the strategies of boundary control become vital. If the separatists win, they will typically want to ensure their victory by institutionally promoting legal systems that are outside of the center’s system of justice. If the separatists lose, the postwar local rulers imposed by the center will have to signal at least some autonomy to show that they are not just puppets. For example, the imposition of Sharia law by the Indonesian state became the guarantee of local autonomy in Aceh in the context of the prolonged separatist conflict.Footnote ⁹²

Conflict also affects the nature of the elite coalitions that rulers need to secure their political survival. Perhaps the most important elite transformation is driven by the militarization of authority. Conflict ultimately increases the role that the military plays in politics: it may bring military personnel to top political positions or make them key members of the ruling coalition.Footnote ⁹³ Professional militaries in many countries hold secular modernist views and might therefore push against non-state legal systems. Separatist conflict, however, brings to the political arena non-state armed actors too – warlords and former rebels.Footnote ⁹⁴ The incorporation of these actors into governmental processes in many post-conflict societies leads to the rise of a distinct type of government official that I call rebel-bureaucrats. These former rebels usually are not socialized through standard military or bureaucratic routines and might hold strong religious and communal identities developed during the conflict. Such officials are thus often less likely to follow the letter of the law and to prefer non-state dispute resolution. A ruler’s policy toward non-state legal systems has to take into consideration the preferences of this “constituency with the guns.”

Conflict outcomes at the macro-level can alter the coalition-formation process by changing the relative strength of the local ruler vis-à-vis the potential challengers. If the separatist conflict ends with a decisive military victory on one side, then the local regime established in the aftermath is likely to be consolidated. If the conflict ends with a negotiated settlement or a stalemate, the peripheral ruler is likely to face many serious elite challengers and may end up quite weak. In other words, conflicts, depending on the mode of the resolution, can produce very strong and very weak rulers who are both likely to engage in the promotion of legal pluralism albeit for different reasons. Nevertheless, a top-down imposition of legal order is an endeavor with far from certain results. To a large degree it depends on lay individuals’ legal beliefs and behavior. In the next section, I explore state-building lawfare from the bottom-up.

How Do People Choose among Forums of Justice?

How and why do people turn to law? How do people choose between state and non-state legal systems? Law and society scholarship documents that disputing is a complex multi-party and multistage process. For example, Laura Nader and Harry Todd distinguished three stages: the grievance stage in which an individual recognizes their injury, the conflict stage in which the individual confronts the other party, and the dispute stage in which the conflict is brought to the public arena for adjudication.Footnote ⁹⁸ Related is the influential pyramid model of disputing that goes through naming, blaming, and claiming stages.Footnote ⁹⁹ Disputing can take many different avenues: lumping it, self-help, informal negotiation, alternative dispute resolution. Formal litigation is always a tiny fraction of the disputing forms. Legal pluralism further complicates the picture: individuals can draw on multiple alternative legal systems to resolve their disputes. I thus focus on people’s choice of arbitration systems – whether state or non-state – along with what they say about these multiple systems.

Law as seen from below is often represented by the closely related concepts of legal mobilization and legal consciousness. Legal mobilization is primarily about behavior – employing law to express a grievance, desire, or demand.Footnote ¹⁰⁰ Legal consciousness encompasses legal beliefs, popular understandings of right and wrong, perceptions of legal entitlements, and moral foundations behind the pursuit of redress.Footnote ¹⁰¹ Under legal pluralism, these beliefs and behaviors reflect the everyday choices made between alternative forums of justice. This bottom-up perspective allows scholars to emphasize the agency of lay individuals against a backdrop of large structural forces behind legal pluralism, such as colonialism.Footnote ¹⁰²

Legal beliefs and behaviors are in a complicated relationship though.Footnote ¹⁰³ Behaviors are collectively negotiated through interaction and are context dependent, “meaning that they belong to situations as much as individuals.”Footnote ¹⁰⁴ Thus, legal behavior does not always follow from legal consciousness. Acknowledging this complexity, I assume that legal beliefs and behavior under legal pluralism are in part shaped by both normative considerations and instrumental forces.

Normative considerations are driven by beliefs about what are appropriate behaviors given a situation, role, and identity. What ought to be done is the guiding principle. This principle is informed by beliefs, routines, habits, and social norms. Normative choices are often based on fast, automatic, instinctive, and emotional cognition. For example, many individuals often opt out of using courts in order to preserve good relations with their family members, neighbors, and communities.Footnote ¹⁰⁵ Normative choices are especially likely to prevail in the domain of moral issues.

The appropriateness of a legal system is determined by perceptions of procedural fairness and by group identification.Footnote ¹⁰⁶ If these group affiliations are associated with distinct legal systems, then this implies that the salience of such affiliation will influence legal preferences and behavior. For instance, people with a very strong religious identity might always choose religious law, irrespective of any practical considerations. Identity and legal consciousness are thus mutually constitutive.Footnote ¹⁰⁷

The normative perspective on legal choices corresponds to insights from cultural theories of law. Sally Merry highlighted that state law and non-state legal systems are not just a set of rules and enforcement mechanisms, but also “a system of thought by which certain forms of relations come to seem natural and taken for granted.”Footnote ¹⁰⁸ One of the founders of this tradition Clifford Geertz showed how the understanding and the use of law and custom reflect cultural codes for interpreting the world, and construct facts, truth, justice, responsibility, and causality.Footnote ¹⁰⁹ Relatedly, John Bowen showed how state law, Sharia and customary law in Indonesia serve as repertoires of reasoning about how “family” is to be understood and reproduced.Footnote ¹¹⁰ Thus, in this perspective, legal choices reflect norms, social meanings, patterned social interactions, and other aspects of reality that are taken for granted.

In contrast to the normative approach, the instrumental approach is about interests. It assumes that if alternative legal systems lead to divergent outcomes, individuals will be inclined to engage in forum-shopping and choose the legal system that best serves their own interests. Forum-shopping is pervasive in many contexts, from international trade arbitration to choosing customary forums in western Sumatra.Footnote ¹¹¹ The concept of self-interest is potentially so inclusive as to be “too big to fail.” I operationalize it as following the logic of consequences – getting the most favorable judgment or verdict in a dispute. Individual self-interest is idiosyncratic, but group interests can serve as a good proxy. Legal pluralism has large distributional consequences along group lines determined by age, class, and social status. For instance, customary law gives a lot of power to older generations. Therefore, it is plausible to assume that older people will be more likely to support customary law.

The most important group interest under legal pluralism is gender. As I discussed above, gendered family law disputes have large distributional consequences. There is empirical evidence that when women have the option to choose, they are indeed more likely to prefer the state dispute resolution system to traditional justice.Footnote ¹¹² Intersectionality of gender with race, political position, age, and class surely complicates this picture. But in general, women and other groups marginalized by religious and customary law have an instrumental motivation to rely on state law.

Instrumental considerations include not only the favorability of the expected outcome, but also calculations of the costs. Scholars have explained the marked preference for customary justice forums over state judiciary by their accessibility – in terms of travel and material costs – among other more normative factors like perceived transparency and congruence with local values.Footnote ¹¹³ Costliness of access to formal state law demands attention to the role of resources, from material to social capital, in determining legal choices.

Social pressure is the major cost that individuals have to bear in mind when making legal choices. For this book, the most important consideration is that families and communities led by powerholders who are the beneficiaries of customary and religious law, impose social sanctions, including sanctions as severe as ostracism and violence, upon individuals who utilize state law. Community cohesion determines the effectiveness of such social pressure.

I assume that legal choice is based to a significant degree on the relative prevalence of normative versus instrumental considerations: norms, identities, and routines versus interests, resources and costs. I argue that legacies of conflict can affect the balance of these considerations and therefore shape legal choices. In particular, experiences of conflict might actualize group interests though the wartime transformation of social roles, especially in gender relations; redistribute material and social capital; raise the salience of ethnic and religious identities; and change the effectiveness of social pressure by influencing community cohesion. This framework allows me to formulate two major logics for understanding the role of legacies of conflict in individual legal choices. I turn to these two logics next.

How Conflict May Affect Legal Choices

Recent political science scholarship has consistently concluded that experiences of conflict affect ethnic, religious, and political identities.Footnote ¹¹⁴ Laia Balcells has shown that victimization experiences during the Spanish civil war led to the rejection of the state. Lisa Blaydes, drawing on research in Iraq, argues that when state repression is collective and severe, individuals come to believe that they share a “linked fate” with their fellow group members, which increases group identity and solidarity. Noam Lupu and Leonid Peisakhin trace how the intensity of family victimization during the forced deportation of Crimean Tatars affected Tatar ethnic identity and attitudes towards the Russian state. Arturas Rozenas and his coauthors find a similar pattern at the community level: they show that communities that were subjected to indiscriminate violence during Stalin’s deportation campaign in western Ukraine during the 1940s are now significantly less likely to vote for “pro-Russian” parties. These studies support the logic of alienation: individuals who experience violence become alienated from the perpetrators of the violence. States are often the primary perpetrators of violence during civil wars. It is thus plausible to assume that such victimization will lead to alienation from state law.

The impact of victimization on attitudes toward the state versus its alternatives is conditional on which side inflicted the harm and also on the subjective attribution of blame. Victimization is then translated into alienation through a process of collective identity formation. I assume that individual blame attribution and collective identity formation are mutually reinforcing and serve as filters between victimization and alienation. The formation of a collective identity allows victimized individuals to overcome fear and actively reject the state.

Alienation logic dominates the recent political science literature. However, in addition to the psychological trauma and change in the salience of communal identities that lay in the foundation of alienation logic, conflict also fundamentally reshuffles societal structures and challenges or outright destroys preexisting forms of social control. Here I once again build on Migdal, who points out that armed conflict, along with revolutions, migration, natural disasters, and epidemics, is the major source of disruption of non-state social orders.Footnote ¹¹⁵ Importantly, conflict does not only weaken non-state authorities – the supply side of justice provision; it can also form the demand for state law by disrupting the existing social hierarchies and thus actualizing group interests. I thus contrast the alienation logic with the logic of disruption of social hierarchies.

I focus on gender hierarchies in particular. As mentioned above, family disputes that determine control over female sexuality are the key areas of contestation between the state and other social forces. As a result, gender typically features as the central group interest in legal pluralist contexts. Another reason is that armed conflict often has a transformative effect on gender relations. Historical research has shown that the World Wars led to women’s empowerment in both economic and political spheres in advanced industrial counties such as the United States and the United Kingdom.Footnote ¹¹⁶ For instance, Russian women gained suffrage and equal legal rights after World War I and the Revolution of 1917. Recent studies have also shown that civil wars too can disrupt and reorder gender relations, spurring women’s political representation.Footnote ¹¹⁷ For example, Aili Mari Tripp’s analysis shows that the largest increase in women’s political representation has happened in those African countries that have experienced the most enduring and intense conflicts.

The literature outlines several potential mechanisms behind conflict-induced women’s empowerment. These factors are interconnected and the lines between them are quite porous. The first is a demographic shift, i.e., changes in the sex ratio or household composition due to the loss of men in armed conflict. As a result, one should expect a link between the share of women and share of female plaintiffs in state courts.

The second mechanism is a cultural shift caused by an increase in experiences of agency among women. During a conflict, women often play important combat roles as well as roles in the support networks of the rebellion.Footnote ¹¹⁸ Women also engage in social movements against violence. Elisabeth Wood highlights that as a result of war, women often become the interlocutors between their families, communities, and the military actors.Footnote ¹¹⁹ This heightened sense of agency potentially changes women’s image of their potential roles and their group interests. A realization of their group interests can in turn switch women’s preferences toward state law.

The third potential channel of change is an economic shift. Conflict kills men and distracts them from economic activities. As a result, women often become the principal breadwinners in their households. This gives women resources to pursue their rights in state courts, which is a costly endeavor. In addition, the experience of inhabiting the breadwinner position is likely to heighten women’s self-esteem and thus strengthen the cultural shift mechanism. Tripp puts it the following way:

The fourth mechanism is an institutional shift made possible by legislative changes that aim to improve women’s rights and cause a proliferation of women’s rights organizations. Quotas for women in the positions of power are perhaps the most widely known of these formal institutional changes. However, others include the passage of land rights for women and legislation against gender-based violence. Taken together, these mechanisms of change suggest that experiences of conflict increase the likelihood that women will choose state law over alternative legal systems.Footnote ¹²¹

It is worth noting that not all forms of victimization can be expected to lead to women’s empowerment. For example, sexual violence may alienate women and their communities from the perpetrators but also diminish women’s status in their communities.Footnote ¹²² It is also important to note that conflict often spurs hypermasculinity, including violence against women and a backlash against women’s potential advancement.Footnote ¹²³ As a result of this backlash – when women are “forced back to kitchens and fields” – there should be no observable gender differences in legal preferences and behavior.

War-induced transformation of gender relations is just a part of the more general process of transformation of social hierarchies. All kinds of hierarchies are ruined in the process of community disintegration that war often brings. Violence, displacement, and the polarization of political identities diminish community and family social control, as well as weaken generational and clan hierarchies. As a result, families and communities are less able to force their members to rely on customary and religious justice systems. This can lead to more individuals turning to the state. When individuals go to state courts in large numbers, it constitutes what I call state-building from below.

The logic of alienation, of course, assumes the opposite – that communities that experience violence will become more cohesive, reinforce their hierarchies, boundaries, and sense of belonging, and thus experience a bolstering of non-state social control. At the same time, the logics of conflict-induced alienation and disruption of hierarchies are not necessarily incompatible. It is entirely plausible that conflict reshapes the identities of some people and thus pushes them toward non-state legal systems, while at the same time disrupting social hierarchies and so allowing other individuals to pursue their interests in state courts.

The social ordering of legal pluralism from below and the political ordering from above are obviously interconnected. For instance, the salience of group identities affects both individual choices among alternative legal systems and the local ruler’s legitimation strategies. If conflict leads to alienation from state law, a local ruler can gain legitimacy by promoting non-state legal systems. In contrast, if conflict leads to the disruption of traditional hierarchies, the local ruler can build their legitimation by either siding with the empowered women and other marginalized groups or by attempting to reestablish the pre-conflict social order to win the support of men and other privileged groups.

***

The theoretical sketch presented in this chapter analyzed the process of state-building in the periphery in terms of lawfare. It looked at the competing orders of social control and political power. Legal pluralism, nested sovereignty, gender cleavage, and separatist conflict were taken as key factors in state-building at the periphery. Legal pluralism was seen to reflect the fragmented social control. Struggles for social control are especially contested in gender relations and the family law domain, which makes gender the key societal divide. Nested sovereignty, whether in the form of empire or federalism, reveals the heterogenous nature of the state and the contradictions of center–periphery relations. Separatist conflict fractures sovereignty even further and actualizes gender divide. It also politicizes group identities, brings new groups such as former rebels into the political arena, and redetermines the distribution of political power among the peripheral rulers, the metropole, and local challengers. I thus argued that state-building on this shaky ground can be productively analyzed as legal politics from both above and below.

The view from above focuses on governmental strategies toward non-state legal systems. I contrasted the role of state capacity, ideology, and popular demand with the logic of local political control. I outlined how the promotion of non-state systems can help local rulers win legitimacy, increase autonomy from the center, and build a coalition out of elite groups. In turn, the view from below pictures social order as the aggregate of individual choices regarding state versus non-state legal systems. I contrasted normative and instrumental forces behind legal choices and outlined two logics as to how conflict might affect social ordering. The logic of alienation postulates that individuals and communities who experience state violence in the course of a separatist conflict will heighten their commitment to religion and tradition and ultimately reject state law. The logic of disrupted hierarchies states the opposite: experiences of conflict will weaken non-state social control and thus lead to an unintentional state-building from below driven by those who benefit from state law.

Of course, this theoretical sketch does not claim to provide definitive answers to the fundamental, enduring – perhaps even philosophical – questions raised here: what drives individual interests, what holds a society together, how are identities built, how do governments control societies, etc.? These questions will always be unanswerable. This book is just one small addition to the library that precedes it. Furthermore, what I have borrowed from this library was to a large degree shaped by what I experienced in the field. In short, this chapter presented a carefully curated and stylized theoretical framework. The next chapter presents ethnographic narratives from my immersion in Chechen social life which form the foundation of my understanding of the local knowledge and local perspectives of the theoretical phenomena I studied.