At the top of the hierarchy is positive law. The highest form of positive law is now understood as positive law—the law that is adopted by or on behalf of the people of a state and representing their direct and superior will. This “higher” law of the constitution is usually understood as consisting of two parts, process protections—the rules that ensure that all actions will be undertaken under law—and substantive protections—that certain values will be respected or furthered in the conduct of governmental affairs. See Larry Catá Backer, The Rule of Law, the Chinese Communist Party, and Ideological Campaigns: Sange Daibiao (the 'Three Represents'), Socialist Rule of Law, and Modern Chinese Constitutionalism, Journal of Transnational Law and Contemporary Problems, Vol. 16, No. 1, 2006.
Beyond higher law, statutory and administrative law represents the highest and most legitimate form of law making. It is said to derive indirectly from the people—as positive acts of their representatives who are vested with the only legitimate authority to make rules binding on the people living in the nation. The only limits of those lawmaking powers are said to be contained in the higher law of the constitution, and in the legitimate pronouncements of international bodies (of which there are few). See, Larry Catá Backer, God(s) Over Constitutions: International and Religious Transnational Constitutionalism in the 21st Century, Mississippi Law Review, Vol. 27, 2008. As long as matters are legitimately considered and undertaken in accordance with (higher) law, and as long as administrative measures are executed in compliance with (any) law, then the actions are legitimate and authentic. But as a result—only those actions which are the expression of the popular will constituted as one or another organ of the apparatus of state can serve as a legitimate source for such expressions of political power. Positive law theory is useful not only for locating law in the structures of sovereignty but also for marginalizing the customs, mores and habits of the populace, and their validation through instrumentalities of state (for example—the courts). It is both a matter of theory and power.
Beneath the majesty of these positive expressions of the will of the sovereign, however such sovereign is symbolically or actually represented within the apparatus of government, is customary law and religious law. Custom has been viewed, for the greater part of the last century, as primitive and undeveloped by most members of the legal and political elites in the West. Customary law cannot be effectively controlled by the machinery of state—and to that extent serves as a counterweight to the political classes. In countries that developed form out of common law customary traditions, customary law us viewed as a direct threat and limit to the power of the state, in the form of an independent judiciary and lawyer class. See, Larry Catá Backer, Reifying Law: “Let Them Be Lions,” Law at the End of the Day, Oct. 22, 2006; a later version published as Symposium: Law and the State in the Transnational Legal Order: Reifying Law: Understanding Law Beyond the State, 26(3) PENN STATE INTERNATIONAL LAW REVIEW 521 (2008). This tension was classically expressed in England in the great contests between James I and Coke in the early 17th century. It has found a modern expression in the judiciary and lawyer resistance to interference with their prerogatives by the government of former President Musharraf. See Lawyers Protest Against Musharraf, BBC News Online, March 12, 2007. But customary law also makes change much more difficult. When balanced by a legislature with power to move change along, the system tends to work well. That has been the idea, at least since the time of Aristotle. See Aristotle, Politics (350 B.C.E.). And it marked the relationship between customary law and legislative enactments in common law countries through the middle of the 19th centuries.
Religious law in the West was viewed in a similar light. It rested on the pronouncements of an institution that competed with the state for control of the machinery of control of individuals. But its control tended to be both overbroad and under inclusive. It was overbroad because religion tended to legislate for people irrespective of political citizenship. It sought to reconceived borders—not based on territory so much as on membership within the community of the faithful. Religion was also severely under inclusive, especially in those states where more than one religious tradition prevailed. In those contexts, of course, difficulties arose of a kind similar to those that follow when two states seek to rule the same land. In the West, since the 16th century, religion has not been so much defeated as co-opted by the state. It is this sensibility that has been cultivated by global elites since the middle of the last century in the construction of global legal culture. Law is very strictly and specifically defined. Its control is vested in certain political classes that adhere to certain rules of engagement with notions of mass democracy. And everything else is relegated to subordinate position as “mere” governance, religion, social practice, habit or “primitive” custom unaided by the wisdom of the will of the people specifically expressed through legislatures or the like. In return for cultivating a culture of legal hierarchy thus constituted, the masses are to be permitted a share of political citizenship. But law, like political citizenship, is to be tightly controlled to ensure direction in the organic development of society and the systems for its constraints. This structuring works as well in the West as it does in advanced Marxist Leninist systems. See, The Party as Polity, the Communist Party, and the Chinese Constitutional State: A Theory of State-Party Constitutionalism, Journal of Chinese and Comparative Law, Vol. 16, No. 1, 2009; Penn State Legal Studies Research Paper No. 05-2009.
In other parts of the world, of course, these truisms tend to be upended in peculiar ways. In the dar al-Islam, “higher law” is provided by religion—rather than the sovereign acts of the people constituted as states. In those places, states, popular sovereignty, positive law and even custom must necessarily be subordinate to the will of the divine force that supplies the basic process and substantive rules for the organization of society. There heresy substitutes for treason, religious loyalty for state loyalty and the power of the clergy for that of the judiciary and autonomous lawyer classes as the supreme expression of legal authority. See Larry Catá Backer, Theocratic Constitutionalism: An Introduction to a New Global Legal Ordering, Indiana Journal of Global Legal Studies, Vol. 16, No. 1, 2008; Islamic Law and Law of the Muslim World Paper No. 08-44.
That is not to say that what appears to Western sensibilities as the structure of states and the positionality of law does not exist. Not at all. There is plenty of that in evidence all over the world. It is rather that all of those indicia of Western legal “civilization” is always implicitly or explicitly subject to the higher law constraints of the Divine Constitution under which those who control the state apparatus operate. That, rather than notions of the “will of the people” or the “customs and laws of the community of states” tend to serve as the limits of power and the source of the legitimacy of all political acts, however undertaken. Results may be similar across systems but the pathways to those results are quite dissimilar and consistency or harmony is never assured, or even assured for long if actually attained form time to time.
The result, of course, is a certain absurdity and incomprehension when systems seek to communicate across large conceptual divides. More tragically, there is also a certain perverse absurdity when systems attempt to translate hierarchies of legal authority across systems whose acceptable legitimating lines of authority are incompatible. Mali sits at such a nexus point of positive, customary and religious law, in a state that seeks to maintain its status as both a republic conforming to global elite norms and a subsidiary territory of the dar al Islam, whose paramount constitution.
The Malian Constitution affirms both the democratic and pluralist character of the state, as well as the secular character of the state apparatus, in the French style. The Preamble provides in part a declaration of the sovereign people of Mali of their determination to “s'engage solennellement à défendre la forme républicaine et la laïcité de l'Etat, - proclame sa détermination à défendre les droits de la Femme et l'Enfant ainsi que la diversité culturelle et linguistique de la communauté nationale.” La Constitution du Mali, DECRET N° 92-0731 P-CTSP, Portant Promulgation De La Constitution (“to solemnly defend the republican form and the secular character (laïcité) of the state; and proclaimed their determination to defend the rights of women and children, the cultural and linguistic diversity of the national community). For an excellent accounting of the French concept of laïcité form a comparative perspective, see Elizabeth Zoller, Laïcité in the United States or The Separation of Church and State in a Pluralist Society, 13(2) Indiana Journal of Global Legal Studies (2006).
The Malian Constitution provides a traditional Western basis for the organization fo the state. Article 4 proclaims the religious rights of Malian citizens— “Toute personne a droit à la liberté de pensée, de conscience, de religion, de culte, d'opinion, d'expression et de création dans le respect de la loi.” ( Article 4: Every person has the right to freedom of thought, conscience, religion, worship, opinion, expression, and creation in respect to the law.). More to the point, Article 28 of the Malian Constitution requires all political parties to respect the principles of national sovereignty, democracy, territorial integrity, national unity and laïcité. (“Les partis concourent à l'expression du suffrage. Ils se forment et exercent librement leurs activités dans les conditions déterminées par la loi. Ils doivent respecter les principes de la souveraineté nationale, de la démocratie, de l'intégrité du territoire, de l'unité nationale et la laïcité de l'Etat.”). Most importantly, and in a way similar to that of the German Basic Law, the Malian Constitution provides, in a critical provision, that certain of its provisions may not be abandoned or modified without rejecting the Malian Constitutional system as a whole. Those provisions that may not be revised, tellingly, include any that affect the republican character of the state, the basis of the political sysem in multi party democracy and the foundational substantive constitutional norm of laïcité. Malian Constitution Art. 118 (“La forme républicaine et la laïcité de l'Etat ainsi que le multipartisme ne peuvent faire l'objet de révision.”).
Yet this globalist overlay appears to sit precariously atop a society grounded in both customary law and in notions, increasingly politicized in the last several decades, of the paramount role of Islam in determining the political character of the state and its laws. Thus the BBC recently reported on the effect of an attempted passage of a law changing the status of women, rules of marriage, and rights of children born outside of marriage in Mali.
Tens of thousands of people in Mali's capital, Bamako, have been protesting against a new law which gives women equal rights in marriage. . . . The head of a Muslim women's association says only a minority of Malian women - "the intellectuals" as she put it - supports the law. Several other protests have taken place in other parts of the country. The law was adopted by the Malian parliament at the beginning of August, and has yet to be signed into force by the president. One of the most contentious issues in the new legislation is that women are no longer required to obey their husbands. Mali protest against women's law , BBC News Online, Aug. 23, 2009.Most telling, perhaps, was the great disjuncture between the lofty words of the Malian Constitution, and the power of customary and religious mores for framing the legitimacy of the provisions at issue. “Hadja Sapiato Dembele of the National Union of Muslim Women's Associations said the law goes against Islamic principles. "We have to stick to the Koran," Ms Dembele told the BBC's Focus on Africa programme. "A man must protect his wife, a wife must obey her husband." "It's a tiny minority of women here that wants this new law - the intellectuals. The poor and illiterate women of this country - the real Muslims - are against it," she added.” Mali protest against women's law, BBC News Online, Aug. 23, 2009.
And thus a great divide across the great rifts that tend to define the internal sociological internal boundaries within a state—cultural, religious, class, and gender. In one sense, for example, Ms. Dembele appears to suggest that religious laws are fit only for the poor and illiterate. That, certainly is how an individual might choose to read the passage—and that would accord with deeply held beliefs about the hierarchy and legitimacy of law, as well as of the relationship of law to state and non state organs. Yet on the other hand, what Ms. Dembele appears to be saying is that there is a disconnect between the Malian elite—comfortable members of a global community of like minded individuals sharing a common set of political values—and those individuals who remain committed to traditional Malian mores—comfortable with the primacy of both custom and religion as the paramount source of substantive political values and as a check on the power of the state to compel.
From the perspective of the Malian constitution, and the mores of the community of nations whose values are elaborated within the Malian constitution, the actions of protestors are incomprehensible in political terms.
At the end of the demonstration, leading imams and Muslim scholars issued a statement saying the new law "violates several articles of faith, teachings of the Koran and traditional values of the Malian people." They said they had decided to boycott the lawmakers and non-governmental organisations who supported the legislation. "We will not have anything more to do with them or their families ... They are traitors to Allah," they said. Demonstrators protest laws strengthening women's rights, France 24, Aug. 23, 2009.
Yet from the perspective of another segment of Malian society, it is the norms permanently enshrined in the Malian Constitution itself that is either incomprehensible, or at any rate subject to the limiting power of a paramount law. While these disparate perspectives might be managed, it is unlikely that they will be harmonized. This is a problem not solely for the Malian elites, but for all of those who have believed that a global consensus on legal hierarchy and legitimacy has been attained. Even within the shrinking ambit of law effectively controlled by the state and its apparatus, the issue of the character of legitimate law making will remain a lively one this century.