B Research methods
4 Chapter outline
There are two parts to the thesis. The first concerns the rule of law as a general proposition, in answer to the question of what takes place in the rule of law. The second concerns the rule of law in Liberia, in answer to the question of what is taking place in the rule of law there.
Part I begins with a reading of Adorno’s negative-dialectical philosophy that draws out the main points relevant to the thesis (Chapter 1). I then begin driving these points into the reality of law’s rule, first by examining the origins of the contradiction in law (Chapter 2), and then by examining how this contradiction structures the rule of law, opening it to different logics, which inform how the rule of law takes place whilst taking place through it (Chapter 3).
Part I ends with an outline of the two theoretical frameworks that inform the study of the rule of law in Liberia. These frameworks are based on the arguments developed in Chapters 2 and 3. The first framework is concerned with the contradiction in law and the consequences for law’s rule; the second is concerned with the forms of violence this enables as well as the ethical possibilities it holds out. These two concerns frame each chapter in Part II of the thesis.
The study of the rule of law in Liberia begins in Chapter 4. The first concern here is how the idea of ‘Liberia’ was given form through law from its conception as an idea of liberty at the beginning of the nineteenth century to its consolidation as a nation-state in the twentieth century. The second concern is how a particular logic informed the making of Liberia in the nineteenth and twentieth centuries through the super-imposition of a representational framework over peoples and lands in west Africa that culminated in a state of civil death for the majority of Liberians. The logic, I argue, is the logic of capital.
At the end of Chapter 4, I consider the Liberian Government’s twenty-first century vision for re-making the republic post-war—a vision that suggests a continuation, if not an intensification, of the institutionalisation of the logic of capital. This raises a question, which I address in the subsequent chapters. How is the Government working to realise its vision of peace, given the violence of the logic that informs it?
Chapter 5 addresses this question by examining what is taking place in the attempt to secure peace in Liberia with the assistance of a UN peace operation. On one hand, my concern here is how Liberia is being given form by law in the twenty- first century in the attempt to establish a state based on the rule of law. To this end, I examine the work that is being done by both the Government and the UN to realise the Government’s vision of Liberia. On the other hand, my concern is with how a logic of security is informing this work.
The analysis in Chapter 5 shows an attempt to secure peace through the establishment of a state based on a forceful rule of law. Not only is this turning the rule of law into a medium of the state’s security sector, but it is also enabling the logic of security to take place through the institution of the rule of law. Bringing ‘justice’ within this security complex is supposed to make the arrangement bearable. However, this raises a question: how just is the justice of this arrangement?
Chapter 6 addresses this question in examining how law is taking form on the ground post-war. Again there are two concerns here. One, I am concerned with how the contradiction in law opens law up to take form in contradictory ways, enlivened by its subjects. The result is an inordinate rule of law, with law taking form on the ground in ways that make it simultaneously not law. Two, I am concerned with how this is a matter of justice—with how this contradiction in law opens the national law up to take form in ways that might make it just.
This raises a critical problem. The implication of the analysis in Chapter 6 is that the arrangement of ‘peace through justice’ requires an inordinate rule of law— a rule of law that remains responsive to the contradictory demands of justice it confronts on the ground. The problem is that such a state of peace would be based upon a contradictory logic. Indeed, it would require facing the contradiction in law and its rule rather than attempting to resolve or dismiss it. Whether, and how, such a critical approach to law’s rule might be instituted is the question to which I turn in the final chapter (Chapter 7).
The first concern in Chapter 7 is the ‘process of law’—how law takes place in-between the expression of law as ‘the law’ and the experience of law as always otherwise than ‘the law’ as expressed. Arguing that the critical function of a legal system is to mediate this contradiction in law, I examine the work of the Government of Liberia and its international partners to reform the national legal system. I also compare this reform with unofficial efforts being taken to deal with the contradiction in the rule of law. At the same time, I am concerned with the quality of these systems of law. By quality I mean how a legal system deals with the contradiction in law. Thus a legal system might ‘over-mediate’ law, articulating the law from a standpoint that is set against its subjects. It might also ‘under-mediate’ law, with law being all-but indistinguishable from what its subjects express it to be.
The ethical potential of a legal system is its capacity to remain responsive in the process of articulating the law.
In the case of Liberia, the analysis in Chapter 7 shows a national legal system that is being reformed in a way that risks over-mediating law, making it a medium for a modern-liberalist agenda for transformation as well as an instrument of domination used to secure ‘peace and stability’ without justice. At the same time, the national legal system remains extremely dysfunctional, marked by corruption of the police and courts as well as incidences of mob violence. Both the acts of official corruption and ‘mob justice’, I argue, are expressions of under- mediated law. Alongside this, however, outside the national legal system, communities are mediating expressions of the law in ways that make the process genuinely responsive. What is critical about these community ‘peace-builders’ is not the law that takes form through their mediation, but how the process makes conflict the basis of a legal resolution.
The thesis concludes by considering the implications of the analysis of the rule of law in Liberia, drawing out the twin-strands that frame each chapter of the case study, before returning to the question of what this means for the rule of law both in theory and in the practice of trying to institute it around the world.