It is best to remember that contracts and laws draw their power from enforcement. Our contract-based society absolutely requires (1) a functioning state, (2) a law-enforcement arm, and (3) a judicial apparatus. But what happens in societies where one, two, or even all three of these necessary underpinnings of contact-law are missing?
Well, agreements are still struck, but in reaching them both parties must be much more careful. Each will be required to enforce the contract—because no state authority is handy to do the job. To aid in this effort, other relationships are very useful, not least family ties, tribal ties, and sufficient other economic or power relationships so that, if the other party fails to deliver, meaningful pressures can be brought to bear, and if these also fail, pain can be imposed on the reneging party.
Tribal and customary law is nothing but the functioning of “contract”-law in an environment of less effective order. We—and our political leaders—ought to keep this fact in mind before we start idly using words like “corruption” to describe any and all actions carried out in cultures very different from our own.
The obvious current example is Afghanistan. The land is disunited. The central state is not a functioning organ. Our military keeps telling us that Afghanistan’s huge police force is still “under training” and “not yet ready.” Its army is also, evidently, not yet ready to fight. Large elements of the population don’t believe in contract-law but adhere to a religious law, the Sharia. In an environment like that you would expect leaders to implement their programs using family ties, tribal loyalties, and allies—thus by wheeling and dealing with friends and relatives—rather than by some procedural arrangement customary in the West. You can’t do that in Afghanistan. As I see things, those who accuse the Karzai administration of corruption are applying one set of rules (say thos for playing soccer) to the wrong game (American football say). What is “corruption” in soccer, namely touching the ball with the hands, is of the essence in football. It is really childish to imagine that an American invasion of a country, the dropping of a few thousand tons of bombs, and the calling of a tribal assembly (the Loya Jirga) will overnight transform a feudal into a bourgeois society.
How did we become so “advanced”? How long did it take us?
It turns out that our system is rooted in various legal codes that came to be written down in a period extending from roughly 500 to 800 AD, thus corresponding to the development of a distinctly Christian culture. Where did those codes come from? Prevailing customs. The roots of those customs? Well, they were old Roman law, tribal ways, and religious teachings. And when did these early codes develop into contract-based societies? That took a whole lot longer yet. It required the slow growth of a bourgeoisie in towns all over Europe that, in the long haul, accumulated enough power to challenge the feudal order and then to bring it to its knees. This happened from the inside. We didn’t have some alien power—say the invading Incas from South America—dictating to us how to turn a feudal Europe into a bourgeois republic at the flick of a finger in less than a decade.
Our system of laws and contracts is not some kind of scientific discovery or revelation from on high. It is as much an ideology as was the feudal order or the Sharia. It is an adaptation to a set of circumstances. First the circumstances, then the ideology. One of our innovations, for instance, that other people find a little difficult to digest, is the separation of morality and legality. But we take that in stride. How did we manage that? We’ve dumped any and all references to an ultimate meaning in life. That way we could optimize life for efficiency. A culture whose slogans include “you only go round once” and “grab all the gusto that you can” will not succeed by calling people corrupt just because they operate under a different but, for their circumstances, equally efficient set of rules.
Filed under: Contract, Law | Tagged: Afghanistan, Loya Jirga
A very good point. Your analogy, use of the rules for soccer and football, is great.
As a student of international relations, this is a reality I have studied often and think about often. What is surprising is that this situation is well understood by thoughtful people, and yet is often ignored in the application of international relations.
What I wonder is how it must be for those, like Karzai himself, who has lived in both worlds, studied in the West and is not trying to live and work within his native Afghanistan. That must be one very difficult road to travel…
What is particularly irksome is the arrogance with which we meddle, invade, and then judge with an outraged tone, without the slightest effort to put ourselves in the others shoes. We are no less arrogant than were the Brits in India or all the other imperialist powers throughout the ages.
It is important to point this out, again, and again, and again…
The only explanation I can think of, re…
yet is often ignored in the application of international relations
…is the arrogance of power. Never mind how other people see things. We’ve got the hammer hand, so let’s bludgeon the bastards into compliance.
Later, when the other side prevails (and they did prevail in Vietnam, first against the French, then against us) we manage to forget. But forgetting of this sort is also a kind of arrogance.