By any account, Sudan would seem to be uniquely inhospitable to law. As an authoritarian state that was, until recently, the site of one of Africa's most brutal and longest lasting civil wars, it would be easy to assume that law and legal institutions play little role in Sudanese life. Few other countries have so consistently been labeled a “failed state,” nor been the subject of such withering international sanctions. What hope, then, does the rule of law have?
Quite a bit, it turns out. This is the argument presented in Mark Massoud's fascinating book, Law's Fragile State: Colonial, Authoritarian, and Humanitarian Legacies in Sudan. Surveying the last one hundred and fourteen years of Sudanese history, Massoud finds that law has played a decisive role in bringing stability and public order to a notoriously fragile country. In practice, this has usually meant the perpetuation of authoritarian rule, but the pervasiveness of law has created openings for opposition movements and civil society groups as well. By exploring how colonial, authoritarian, and humanitarian actors have all deployed the law for their own ends, Massoud aims to show both the potential and the limits of law as an instrument of political power, even in the most unstable of states.
The first half of the book sets out Massoud's theory of “legal politics” and presents some of its most successful applications. Legal politics, according to Massoud, is the strategic use of legal texts, practices, and arrangements to achieve political or economic goals (p. 24). The framework here draws heavily on the so-called “rule by law” literature, which focuses on how authoritarian regimes use their judiciaries to overcome some of the pathologies of nondemocratic rule (e.g., Reference Ginsburg and MoustafaGinsburg and Moustafa 2008). In colonial Sudan, for instance, the British government used its vast network of secular, religious, and customary courts to ensnare private grievances in public institutions, where litigants could be monitored for signs of nationalist or anticolonial sentiment (Chapter 2). Likewise, during the first chaotic years following independence in 1956, a succession of weak governments relied on the judiciary to implement policy and preserve social order (Chapter 3). Massoud is especially convincing in his discussion of legal politics under the regime of Umar al-Bashir (Chapter 4). Following the 1989 coup that brought Bashir to power, his government launched a nationwide campaign to “shorten the judicial shadow” (p. 143), a policy that involved greatly increasing the number of lawyers, courthouses, and law schools in Sudan. This expansion in judicial capacity was part of Bashir's larger effort to overcome opposition to his regime's Islamist reforms, a program that remains understudied by scholars of Sudan. They and others interested in modern Islamic legal reform will find Massoud's argument here especially valuable, as it includes evidence from government archives that have heretofore been inaccessible to researchers.
In the second half of the book, the focus shifts from state actors to civil society and humanitarian groups. Massoud touches briefly on their role during the colonial and early post-colonial periods (Chapters 2 and 5), but the bulk of this section is given over to the events of the last ten or so years, particularly following the 2005 peace treaty that ended the country's civil war. Since then, dozens of international aid organizations have flocked to Sudan, hoping to cultivate in citizens the legal knowledge necessary to oppose authoritarianism, promote development, and secure civil rights. Yet as Massoud correctly points out, legal know-how in Sudan remains largely the resource of elites, with little trickling down to the larger population (Chapter 6). This has been compounded by the regime, which has displayed little interest in having rights-based arguments placed before the court. It seems unclear, therefore, what benefits the law provides for nonstate actors in Sudan.
But this raises an important question that Massoud leaves unanswered. If the legal deck is truly as stacked against nonstate actors as he suggests, why do Sudanese nonetheless patronize the state's courts, especially when informal or so-called “tribal” courts are still a very real alternative in many parts of the country? The answer to this question is likely to be found through an analysis of the mundane cases that fill most judges’ dockets: employment disputes, marriage and divorce, simple theft or assault, etc. It is with these sorts of cases, not those involving human rights or democracy promotion, that most Sudanese have their only interactions with the state judiciary, a fact Massoud himself acknowledges (pp. 186–187). How do citizens fare in such trials? Do poorer litigants often win over richer and more powerful ones? To what extent do family connections or other group memberships determine the outcome? A great deal of Massoud's argument for law's prevalence in Sudan hinges on the power of legitimacy: that state law and legal institutions are only useful to the regime to the extent that they pass some minimal threshold of legitimacy; otherwise, people would take their disputes elsewhere. The answer to these questions, therefore, would probably tell us a great deal about the perceived legitimacy of the Sudanese judicial system, but Massoud is relatively silent on the subject.
That being said, Massoud's book is an outstanding addition to the study of judiciaries in nondemocracies. It also has many important lessons for law and development scholars, particularly those interested in fragile or war-torn states. Finally, this book will be essential reading for anyone hoping to understand Sudanese history or contemporary politics, particularly following the secession of the South.
