Thomas Hobbes in his Leviathan, written in the shadow of the English Civil War, famously painted a picture of a state of nature in which life was “solitary, poor, nasty, brutish and short.” This was a world in which evils and vices could flourish, and Hobbes sought a solution to this problem, in his case a common power to hold all others in awe. A rather different approach was taken in the following century by Bernard Mandeville, who in The Fable of the Bees, considered scandalous at the time, wrote that “Vice is beneficial found, When it’s by Justice lopt and bound.” Ever since, the issues of how to build justice systems in severely disrupted environments, and how to reconcile state and non-state justice systems, have returned from time to time as a challenge for state formation or state-building. Two of the most striking examples in the 21st century were to be found in Afghanistan and Timor-Leste. Based on an Oxford DPhil thesis, Geoffrey Swenson’s book significantly advances our understanding of these cases. He had already foreshadowed some key points in an important article (Geoffrey Swenson, “Why U.S. Efforts to Promote the Rule of Law in Afghanistan Failed,” International Security, vol. 42, no. 1, Summer 2017, pp. 114–151), but they are significantly elaborated in this monograph.
The book falls into two parts. The first part is substantially concerned with conceptualization and sheds light on an issue often overlooked, namely how legal pluralism intersects with state-building agendas of a kind that typically figured in the mandates of UN missions authorized by the UN Security Council after the end of the Cold War. At the heart of Swenson’s discussion is a careful differentiation (p. 58) between four “legal pluralism archetypes”: combative, competitive, cooperative and complementary. In the combative archetype, the “state and non-state justice sectors do not recognize each other’s right to exist and actively seek to destroy each other”; in the competitive, “Deep tensions exist between the state and non-state justice sectors, and there are frequent clashes between systems” but “the state’s formal juridical authority is not challenged”; in the cooperative, the “non-state justice sector retains a significant degree of authority and autonomy” but “state and non-state legal authorities are generally willing to work together toward shared goals” and in the complementary, “Both state and non-state justice exist, but non-state justice mechanisms operate under the umbrella of state authority.” Swenson also identifies (p. 65) “five main strategies for how best to understand interactions between state and non-state systems”; these he labels “bridging,” “harmonization,” “incorporation,” “subsidization” and “repression.”
The second part of the book examines the state-building experiences of Timor-Leste and Afghanistan, the former of which can be seen as quite a success story and the latter an abject failure. In a careful study of the case of Timor-Leste, he traces the move from competition to cooperation, making the important point (p. 101) that the 2006 crisis prompted political leaders to step back from the brink in a way that had enduring positive effects. He also notes the success of the Timorese in consolidating a democratic order and particularly in establishing credible structures for electoral administration: the Technical Secretariat for Electoral Administration (Secretariado Técnico de Administração Eleitoral) is one of the most impressive anywhere in the Asia–Pacific region. Perhaps the main challenge that he highlights relates to the importation of a Portuguese model for state law. As he bluntly puts it (p. 141), “Legislators, the vast majority of whom do not speak Portuguese, are expected to debate the merits of legislation that they cannot understand.”
The Afghanistan case offers a sad contrast, again examined with great care. Swenson very effectively documents how Afghanistan’s presidential system, as embodied in the 2004 Constitution, led to exercise of power that “was inconsistent with the rule of law, undermined the state’s legitimacy, and helped spur the insurgency” (p. 166). The archetype of legal pluralism in Afghanistan was substantially combative. Following scholars such as Adam Baczko (La Guerre par le Droit: Les Tribunaux Taliban en Afghanistan (Paris: CNRS Éditions, 2021)), Swenson gives a detailed account of the Taliban’s attempts to instrumentalize the enforcement of rules as a way of securing legitimacy. What may deserve more attention, however, was the role of sanctuaries for the Taliban in Pakistan, provided by that country’s Inter-Services Intelligence directorate, that for nearly two decades allowed Pakistan to mount a proxy war – in effect, a kind of “creeping invasion” – against what was perceived as a pro-Indian Afghan government. State-building in Afghanistan was under fairly constant, vicious attack, in a way that was simply not the case in Timor-Leste.
Swenson’s study does not engage directly with jurisprudential writings on the nature of law. The contributions of writers such as Hans Kelsen, H.L.A. Hart, Ronald Dworkin and Neil McCormick to thinking about the nature of a legal system go unremarked, as does Joseph Raz’s study The Concept of a Legal System (1980). Yet Swenson so effectively anchors his analysis in a socio-legal framework derived from the political principle of the rule of law that these gaps should not be seen as defects but rather as sources of opportunity for future research. This is a fine study, and any scholars with interests in the rule of law in Timor-Leste and in Afghanistan will profit from reading it.
