THE RULE OF LAW AND THE CHALLENGE OF PLURALISM - 2

[Abstaract / Preamble ]    [ Conception and Legitimisation of Power ]   [ Source, Nature and Scope of Law]    [ Law and Morality ]   [ Secularism the Solution? ]   [ Option of Pluralism ]   [ Challenge of Pluralism / Conclusion ]    Conception and Legitimisation of Power The question here is what is the nature and source of power and how is it legitimated? By what right does a monarch, or in our case today, an army general, or even, as Newbegin puts it, “some people calling themselves ‘the State’ exercise coercive power over others? From whence is this power driven? Is it from the so called will of the people or is it from some supra human or super human source? Does sovereignty belong to God or to the people? What difference does it make if the source is human or autocratic? There could be more questions but we may be content with these for now. Broadly speaking, there can be two main sources of power, human or super human. The latter can be a God, a cult or even an ideology such as Marxism. This power can be absolute, limited or conditional. In the Islamic world-view Allah is the absolute source of power and all sovereignty belongs to Him. Man has, however, been given limited power as a trust and under clearly spelt conditions. First the essence of power in Islam is justice, power that does not lead to justice is power abused. Justice constitutes the very raison d’être of a state or polity. “Justice”, as Ibn Khaldun puts it, “is a balance set up among mankind. The lord set it up and appointed an overseer of it, and that is the ruler.” (3) As a khalifa or vicegerent, man’s exercise of power is circumscribed by Allah’s objective, the establishment of justice and is entitled to obedience of other men only if and when he obeys Allah and his Prophet. So he remains in power for as long as he submits to the sovereign and loses it if and when he rebels against the sovereign. But man can only ascend to power through the consent of his fellow men and can only exercise it through the same consent. How this consent or shura is organised is left for men to decide as it will differ from epoch to epoch. (4) These limitations and conditions make power a heavy responsibility on the shoulders of men. “The Sultan”, says Shehu Abdullahi, “is under obligation to observe justice and goodness. Justice means that he restores to every one his rights.” (5) Muhammad Bello also said  “who ever is appointed to take charge of Muslim’s affairs and fails to protect them as he would protect his own household, would certainly take his seat in hell.” (6) It is thus unlikely for men who wish to shoulder the full responsibility of power to crave for it. Most of those who look for it will tend to abuse it and this is probably why the prophet of Islam said that we do not give power to those who ask for it. Lobbying or campaigning for positions of responsibility is thus alien to the Islamic political culture. In the Christian world-view the picture is not very clear, for while the kingdom belongs to God at a certain stage Christians split it into two and conceded the temporal half to Caesar. It is not clear where exactly Caesar drives his power from, God or men. “We have in Christianity” Rev. Matthew Kuka tried to explain, “what seems to outsiders like a diametrically opposed viewpoint to that of both traditional religion and Islam. But the reality of history is that Christianity operated a system that was similar to both Islam and traditional religion until recent times. This was so until Christianity was dethroned from this position in Europe and beyond. ... Politics and political action for the Christian is therefore to be seen as a means of serving God by the pursuit of righteousness and justice. Hence, in reality, it really should not make any difference who rules; it is a matter of how just, sincere and righteous the ruler is in the face of God’s commandments.”(7)This hardly helps to clarify matters. But not all Christians share the view that it does not really matter who rules or whence power come. Lesslie Newbigin, a prominent Christian priest and scholar seems to believe that power in Christian world view ought to rest with God. In his words “At the heart of the political debate is always the question: How shall justice be effective? How shall power be just? One might almost say that this agonized question is the pervasive theme of the Old Testament, above all of the Psalms. How, when, where shall God’s holy and just rule take effect in the life of this world of violent wrong-doing? When, where and how, in other words, shall we see the kingdom of God, his kingly rule manifest in the life of the world?”(8)Newbigin is certainly not prepared to concede to Caesar temporal political power nor is he impressed by the performance of the secular state, which he believes “was based on an insecure foundation. The liberal doctrine of the free society”, he added, “has no adequate safeguard against the twin dangers of moral anarchy and political tyranny.” (9) This is certainly not the place and I am not the person to resolve this seemingly intricate Christian theological issue. We may have to leave it in the competent hands of Christian priests and scholars. But we need to appreciate that the way the issue is resolved will affect the nature and operation of the rule of law. Under the modern secular state the situation is clearer, sovereignty belongs not to God but to the people. In other words coercive power drives from the will of the people. This concept, pervasive in our contemporary world, is relatively new dating back to the French revolution of 1789, though its roots lie in the Renaissance movement of the 15th century. The logic lies in the philosophy of the Renaissance which created the universal man also called the ‘Renaissance man’, captured in the famous remark of one of its chief prophets, Leon Battista Alberti (d.1472) that “a man can do all things if he will.” This renaissance humanism weaned man off from God and considered him (man) the centre of the universe, limitless in his capabilities to acquire knowledge and in his capabilities for development. Thus man, having dispensed with God, gave himself sovereignty and the right to make laws. Power is thus legitimated by the will of the people. How this will is defined and organised is also determined by man himself, who else? With Military dictatorship the source of power is undoubtedly the barrel of the gun. The philosophy, or more properly the excuse, appear to be the arrest of drifts or check against anarchy. The present military has been described as a child of circumstances, but is there an event which is not born of one circumstances or the other? Suspension of the constitution and the introduction of ouster clauses are essentially negative measures that only betray the insecurity associated with the usurpation of power which military regimes represent. To the extent that the decrees and ouster clauses represent regular law the regime may claim legality but there is a world of difference between legality and legitimacy. Flirting with traditional rulers or such groups that need the regime more than the regime needs them, certainly does not confer legitimacy. How then is power legitimated in a military regime? This clearly is a catch 22 kind of question, for how can one usurp power and legitimise it at the same time? Must a check against anarchy always be tyranny? The implications for the rule of law are all too obvious.