My research focuses on questions that arise from the overlap of state judiciaries with ethnic and minority group courts and legal systems. I am interested in understanding how states navigate legal pluralism–for example, why and when do they permit minority groups to live under their own laws in their own communities, or incorporate group law into state courts? Equally, what makes some states decide to entirely ban anything aside from state law? I also address questions about the rule of law that arise when multiple legal norms operate in a single social space. In my dissertation, titled “States and Group Rights: Legal Pluralism and the Devolution of Judicial Power,” I build a typology positing six approaches to legal pluralism that I use to explain why states adopt different policies. My dissertation focuses on Tanzania, Malawi, Lebanon, Egypt, England, and France.
One of the most pressing and under-researched issues in comparative politics is the delegation of the state’s coercive function to non-state groups such as military contractors, private jails, surveillance firms, and religious or ethnic courts. Many developed, democratic states hire private firms to enact force against international opponents and domestic law-breakers, but few are willing to permit the existence of separate, group-based courts and legal systems. Whereas contractors carry out the state’s mandate, courts make, revise, and implement laws, and, as such, are bound up with the governing function of the state, as well as its coercive apparatus and its tax-generating property rights regime. Nevertheless, more than half of the world’s states do decentralize judicial power. My research is accordingly focused on understanding the causes and consequences of judicial decentralization.
My dissertation aims to answer two separate questions: what causes states to devolve or share judicial power with ethnic or religious minority groups in the first place? And what accounts for the variation in state approaches to judicial decentralization? To answer these questions, I have built a typology to map the concept of judicial decentralization, based on the structure of the state’s national court system and the unity of its legal doctrine. I found six different types of judicial decentralization, ranging from the full recognition of separate courts and legal systems to the incorporation of group law into state courts to full centralization. I examined one case of each to build a unified theory that explains the full range of outcomes through within and cross-case comparison drawn from nineteen months of court observations, archival research, and interview-based fieldwork in case studies of Tanzania, Malawi, Egypt, Lebanon, England, and France. I conclude that judicial decentralization is the result of a process of bargaining between the state and the minority group in which two factors are decisive in determining the degree of decentralization: minority group elite coordination and the relative capacity of the group and the state.
The topic of judicial decentralization sits at the intersection of a number of fields such as ethnic politics, conflict studies, democratization, and state-society relations, among other fields. I find, for instance, that in legally pluralistic states, citizens use local, customary law courts more frequently than state courts, but that the consequence is often the creation of authoritarian enclaves in constitutionally democratic states. The study of judicial diversity also addresses the rule of law literature because judicial decentralization creates tensions between the often-cited need for equality under the law and the practical reality that forcibly eliminating minority group adjudication forums often creates waves of violence and crime. One of my ongoing research projects uses data gathered during dissertation fieldwork to explore the protection of rights in each of the six types of judicial decentralization to better understand whether better rights protection is systematically linked with the level of decentralization, and, if so, how.
My next project explores the effects of judicial decentralization on political trust in areas served by the national judiciary as opposed to those where religious leaders, tribal chiefs, or other non-state elites provide adjudication. Data from my first research project shows that in areas where minority group legal forums are available, most litigants prefer them to state courts. Does this preference indicate lower levels of trust in government institutions, or social pressures brought to bear on potential litigants? I hypothesize that states with greater levels of judicial decentralization do suffer from lower levels of trust, but that judicial decentralization is not its cause. Instead, lower trust results from the same processes that create decentralization to begin with, i.e. a relatively weak state and the government’s willingness to trade away individual rights for political gains or other goods.
My interest in judicial institutions, and judicial decentralization more specifically, stems from a longstanding interest in legal pluralism and the rule of law in developing states. The study of legal pluralism has recently become more mainstream, decades after legal sociologists and anthropologists determined, primarily through the study of individual cases, that beyond the domain of state law exists a vast and rich world of secondary, group-based legal systems that are as much or more binding on their constituents than state law. Based on this, legal practitioners have increasingly begun to advise delegating judicial power to minority groups, but often with little understanding of the conditions that would make decentralization feasible, or the consequences of doing so. Although I find that, given the choice, citizens use local, customary law courts more frequently than state courts, anecdotal evidence indicates that their rights are not nearly as well protected by the former. When states devolve judicial power to win support for their political projects, they favor group rights at the expense of individual rights. We do not yet understand judicial decentralization well enough grasp all of its normative implications, but my research, by offering a systematic analysis of the conditions that give rise to particular forms of decentralization, makes an important substantive contribution to this effort.