Many fragile states suffer from incoherent legal systems. Whereas in developed countries, one single system exists and is effectively enforced, in fragile states multiple systems work side-by-side, each weakly enforced, and often operating in contradiction with each other. Creating a unified and robust system of law is one of the biggest challenges these countries face.
In most cases, this incoherence is a direct product of colonialism. One system, often with the greatest relevancy to local populations, has roots in the precolonial system of governance. It may have evolved a lot since then, but is still based on local circumstances and institutions. The state, itself a product of foreign rule, follows another system, based on Western legal tradition, imported from abroad. Neither is consistently or equitably implemented. Corruption distorts outcomes. Officials (whether those of the state or local leaders) lack training. Favoritism is common.
In some places, religion comes into play with its own system (such as Sharia), creating three legal layers, each with its own logic. Outcomes and incentives can be widely divergent. Local systems may also vary tremendously by location, creating a complex mosaic of different mixes of different systems depending where in a country one is.
Even though such problems are usually associated with Africa, they are widespread across fragile states, from Bolivia to South Asia. Pakistan is representative. As Anatol Lieven writes in Pakistan: A Hard Country,
No Pakistani can feel that his state law is Pakistani law . . . for the obvious reason that it isn’t. It is British law, as transmitted by British rule to the empire of India, adapted to the purposes of ruling India, and somewhat modified by Pakistani governments and parliaments since independence . . . The state judicial system faces a dual challenge to its legitimacy: from traditional, informal and unwritten local practices (and the moral orders and loyalties they reflect) called in Urdu rivaz, and from another great formal, written legal code, that of the Shariah. . . . The competition of judicial codes is intimately related to the weakness of the state in Pakistan, and Pakistan’s difficulties in developing as a modern society and economy . . . The population of Pakistan . . . has a choice between the law of the state, the law of religion (the Shariah), and local folk, tribal or community law.
In such places, the state struggles to work well because its societal roots are extremely shallow. Imported legal systems have little relevance for populations whose own institutions, norms, and systems of governance are deeply embedded in centuries of common history and intricate social relationships. And indigenous capacities to govern are undermined when there is an overemphasis on imported systems the people are unfamiliar with—making enhancing the rule of law especially difficult.
The many systems need to be integrated into a single coherent hybrid system that offers a consistent message, treats everyone equitably, and works reasonably effectively. The end result will include different elements of state, local, and religious legal regimes, and differ to some extent by region, but must be coherent enough to eliminate the contradictions that currently plague countries. And it must reduce the scope for opportunists to shop around between systems, exploiting inconsistencies, as is now the case (and which advantages the rich and powerful, who have the resources to shop, the connections to corrupt, and the means to intimidate those making decisions).
At higher levels, the state system will dominate, with its more modern and more equitable rulebook, but with limited capacity to reach deep into society. It will offer courts of appeal and a certain minimum standard that all will have to adhere to. At the local level, a traditional or religious system or hybrid that builds on what people know and what institutions they find most effective will dominate. Attempts to improve how these local institutions work will be combined with attempts to connect them up with central government regulatory agencies and courts.
A lot of research is required to make this work—research into what legal regime is being used where, how effective it is, and what might be done to improve it. Research into what parts of the state system work reasonably well and where might the limited state capacity be best used and integrated with what exists elsewhere will also have to be undertaken.
A lot of training will also be required. Training of officials to run state institutions—such as lawyers and judges and law clerks—will need to be matched by training of local actors who play a role in shaping and implementing local systems.
Putting into place an integrated hybrid system requires action by the state. But laying the groundwork for comprehensive reform as outlined here may be better handled by a non-state organization specifically dedicated to this purpose. Such an organization could undertake the research, documentation, and policy work in an independent fashion, less hampered by the weaknesses of existing state institutions and less beholden to special interests than a government entity would be.
There is a role for foreign donors here, both as a backer of such projects and as a provider of a lot of technical assistance. But such an organization must be locally manned in order to be effective. Understanding the intricacies of competing legal regimes, customary laws, and how state institutions work requires intimate knowledge of local societies—knowledge that few foreigners will be able to garner in a fragile state such as Afghanistan, Yemen, the DRC, and Liberia. Later on, there will also be a need for much more investment in training schemes to enhance the supply of legal professionals (when was the last time a donor helped start a law school?) and in programs that strengthen and integrate institutions (based on the policy recommendations produced by our rule of law institutes).