Competing Legal Magic

-- By LindaMuzere - 17 Feb 2012

Introduction

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

What is the future of a country that just survived a vicious civil war and now faces the challenges of autonomy? How is a nation built on land that was disemboweled by combat, out of a population scattered by internal conflict and tenaciously segregated by tribal culture?

The conflict from which these questions arose could be understood as a battle of competing “legal magic”. The dichotomy of the morality based Islamic Law in the North and the logical principles of westernized democracy in the South legitimized the tensions that created war. But with independence comes the burden of avoiding “transcendental nonsense” and establishing a body of laws and a judicial system that can unite an ethnically diverse nation, dogged by a recent resurgence of tribal warfare. As a concerned Sudanese-American I turned to my parents for resolve and found answers in the promise of Felix Cohen’s “functional method”.

Competing Legal Magic

After nearly 60 years of Anglo-Egyptian colonialism and a series of military coups, Sudan was established as an Islamic republic by the late 80s. Despite promises not to interfere with autonomy in the south, Sudan’s centralized government extended its power to the southern border. This government, whose legal code is partially based on principles of morality in the Qur’an, implemented policies that marginalized the political representation and economic interests of the predominately black ethnic groups of the south. The North owned and operated a majority of the oil production in the South to finance operations that almost exclusively benefited the North. The government legitimized their dominance of southern tribes and the natural resources by implementing justice and claiming land in the name of the government.

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

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

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

A Solution for the Future

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

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

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

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

Conclusion

I do not intend to understate or oversimplify the problems and externalities that plague South Sudan and other African countries. Nor do I intend to provide the magic formula for autonomy and democracy. But if law can be effective, even as a weak form of social control, there need to be changes its conceptualization.

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