Edited by Christopher May and Adam Winchester
Chapter 4: The rule of law, legal pluralism, and challenges to a Western-centric view: Some very preliminary observations
The chapter seeks to unpack two problematic features of the ‘rule of law’, a concept so widely used to, on the one hand, depict a political order based on the legality principle and, on the other, to refer to a historical variation of a legal order, typically succeeding or supplanting authoritarian arbitrary rule. What makes the concept’s use so questionable is that, in the first case, it so often becomes a technical term to describe what is, in fact, an extremely fragile and precarious constellation of norm generation, contestation and adaptation that rests on a set of processes – democratic or otherwise – which themselves are inseparable from any particular practice of the rule of law. In the second case, while a historical depiction of the rule of law in a certain place at a certain time should remind us of the need to assess the rule of law in very concrete, contextual terms, this is typically not the case. Rather than placing each example of the ‘rule of law’ within the context of a particular and unique socio-economic, cultural (including religious), political setting, too often we find that even the historical depiction becomes detached from its (often problematic, even bloody) setting to be represented as a detached and universalized reference. Both the conceptual neutralisation and its universalization has given the rule of law a bad name, especially in places where it serves as summary justification for foreign ‘technical’ and ‘legal’ assistance projects with little regard to local interests, traditions and existing legal pluralist norms.
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