THE RULE OF LAW AND THE CHALLENGE OF PLURALISM - 7
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[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 ] Rule of Law
and the Challenge of Pluralism The essence of the rule of law, as we noted at the
beginning of the paper, is to check the arbitrariness of man in the
administration of justice. The necessity for the rule of law suggests a lack of
confidence in man’s temperaments, a fear that his unjust tendencies could get
the better of him and make him swerve the cause of justice, that without some
check in the form of some standing rules, we cannot be safe from man’s
vulnerability to selfishness and greed. This same logic underlines the essence
of religion, especially the revealed ones. That man cannot on his own wits
attain to justice, he needed a higher order, not only to guide him but also to
restrain him from such excesses as he seems prone to. In other words religions
operate on the logic that man needs to be saved from his own folly, only then
can humanity be safe and justice ensured. Even humanists would find a soft spot
for this argument and to the extent that they believe in the necessity for the
rule of law, to that extent they are conceding the fallibility of man and his
need for some help and guidance from outside himself. The simple, but important
point being made here is that both the concept of the rule of law and the
concept of religion share a common unassailable logic, that for the attainment
of justice man needs some restraint. Thus religions, generally, ought not find
the principle of the rule of law strange nor the rule of law religion. It is
true religions are diverse, but at their core and in their essence share
similar principle. This principle is what informs pluralism. So pluralism
offers our diversity the opportunity to co-exist and uphold the rule of law. But
this can only work when it takes a definite political structure where the rules
are defined the limits demarcated. Proper and True Federation In our contemporary days the only arrangement that
approximates to this and looks promising in accommodating our differences seems
to be a true, proper and sustainable federation. The subject of federalism is a
familiar one and several published papers have attempted to delineate it, each,
rather understandably, in its own way. One paragraph from Dr. Kumo’s paper appears
to capture the essence of this arrangement: “the basic premise upon which the
demarcation [of the suggested regional structures] is proposed is maximum
homogeneity and the wish of the people concerned in every case. Therefore,
whenever a dispute occurs as to whether or not any community wishes to be in
(or out of) any particular region the matter should be settled by a plebiscite.
In no case should any community be forced into where its people do not want to
belong.” (30) Kumo was suggesting the creation of regions, or units by
whichever name called, on the basis of religious and cultural homogeneity.
Admittedly, there will always be in any given region or unit, and even after
following the principles of maximum homogeneity, some degree of cultural and
religious diversity. So there will be two levels of diversity, intra-regional
and inter-regional diversities. In both cases the principle will be the same:
at the federal level the various units, at the regional or unit level the
various cultural and religious groups will negotiate freely the terms and
conditions under which the federal as well as the unit will be run. But how is
this different from the fairly familiar federal arrangements as that of the
United States? The major difference is that under the more familiar
federalism the underlying assumption is secular, which while adopting a
negative attitude towards religions generally, remains sympathetic to Christian
ethos. Under pluralism this anti-religious attitude as well as the pretence to
neutrality is hopefully eliminated, thus eliminating with it the intimidation,
contempt and presumptuousness associated with secular culture. The major
advantage under pluralism is that people are not alienated from their beliefs,
cultures and identities, thus not only minimising areas of friction but giving
a people respect and dignity and boosting their self esteem. Pluralism, as
mentioned above, further provides the federating units as well as the
communities within a unit a better forum to relate to each other with mutual
respect and dignity. Nationalists may be worried about the possible
weakening of national unity, in an arrangement which promises great autonomy to
federating units, but this, in fact, may be the best hope for national unity,
given the diversity. Similarly Marxist might be worried about the political
economy in an arrangement that promises to decentralise power beyond
traditional bounds. Well, if this is the wish of the people so be it. Democracy
would certainly flourish better in a federation which is based on the
principles of pluralism, and the nationalist, the Marxist, indeed all and
sundry will have a fair chance to sell their wares. Let us first install a
proper federation under plural, rather than secular principles, it should then
be easier to maintain the supremacy of the rule of law and there after all
others things could follow. But how do we secure this arrangement in the
circumstances and what guarantee do we have that it will continue? Clearly the
greatest obstacle to this and the most enduring threat to its continuity is the
military with its regimented mentality and unitary tendency. How then do we
tackle the menace of the military? This ought to be a subject of a separate
paper. But as Edward Burke would say, “the only thing necessary for the spread
of evil is for good men to do nothing”! Concluding
Remarks The paper has attempted to look at the challenge our
diversity in religion, culture, world-view and therefore law poses to the
concept of the rule of law. It has suggested that the principles of pluralism
will be most appropriate in dealing with such diversity, which is both natural
and harmless. This will not only enhance the application of the rule of law but
will promote democracy, which puts another check to arbitrariness and dictatorship.
For further clarity, perhaps we ought to have asked and answered the question:
what is the problem for which pluralism is the solution? The problem, simply
put, is secularism, which, far from solving the problems of diversity and
enhancing the supremacy of the rule of law, compounds it and undermines the
very logic on which the principle of the rule of law seems to operate. True and
proper federalism fashioned along the principles of pluralism, rather than
secularism, is thus being suggested as our best bet.
Footnotes1. For details see This Day July 16, 1997, P32 (back page) 2. Aristotle, in Ethics, Book V. See K. S. Chukkol, ‘Enforcment of Judgements Against Public Officers and the Institutions and the Rule of Law’, in Ayua (ed.), Law, Justice and the Nigerian Society. Lagos, NIALS, 1995. P. 61. 3. Ibn Khaldun, The Muqaddimah: An Introduction to History, F. Rosenthal (trans.) N. J. Dawood (abrg. ed.) London, Routledge, 1967. P. 239. 4. For details of these limits and condtions and the organisation of this conscent or shura, see M. H. Kamali, ‘The limits of power in an Islamic State’ in Islamic Studies, vol. 28, no. 4. P. 340. See also I. N. Sada, ‘The Concept and Nature of Islamic Constitution Theory’, in Journal of Islamic and Comparative Law, vol. 19, 1993. Pp. 35-43. 5. Abdullahi b. Muhammad (Fodio), Diya’ al-Hukkam, Shehu Yamusa’s translation. P. 28. 6. Muhammad Bello, Usul al-Siyasat, Shehu Yamusa’s trans. P. 7. 7. Mathew Kuka, ‘Relgion and Politics of National Integration in Nigeria’, in A. Mahdi et al (eds.) Nigeria: the State of the Nation and the Way Forward, Kaduna, Arewa House. 1994. P. 447-8. 8. Lesslie Newbigin, ‘1995 Gospel and Culture Lecture,’ Kings College London Chapel, 1st December 1995. P. 7. 9. Ibid. P. 8. 10. Ibid. Pp.6-7. 11. S. M. N. Al-Attas, Islam and Secularism, Kuala Lumpur, ISTAC, 1993. P. 74-5. 12. Ibid. Supra P. 77-8. 13. L. Newbigin, op. cit. P. 3. 14. S. M. N. Al-Attas, op. cit. P. 87. 15. I. Suleiman, ‘The Sharia in the contemporary World: Challenges, Obstacles and Prospects’, Unpublished paper prsented to I.I.U. Malaysia, 1989. P. 12. 16. Basil Mitchell, Law, Morality and Religion in a Secular Society, London, OUP, 1970. P. 1. 17. Ibid. P. 2. 18. Lord Devlin’s response came in his Maccabaean Lecture in Jurisprudence read at the British Academy on March 1959. 19. Basil Mitchell, op. cit. P. 3. 20. Ibid. P. 21. 21. Hart’s response was series of lectures, the Harry Camp Lectures, which have published as Law, Liberty and Morality, Oxford, OUP, 1962. 22. Mill, On Liberty, P. 73. (Everyman Edition) 23. Antoine Vergote, ‘Religion and Secularisation in Western Europe: Their Significance for the Cultural Dialogue with the Arab World’, in Derek Hopwood (ed.), Euro-Arab Dialogue: The Relation Between the Two Cultures. [Acts of the Hamburg Symposium, April 11th-15th 1983] London, Croom Helm, 1985. P. 149-50. 24. Ibid. P. 153. 25. K. D. Wald, ‘Separation and Interaction: Religion and Politics in the United States’, an Interview, in U.S. Society and Values, U.S.I.A. Electronic Journal Vol. 2, No. 1, March 1997. P. 2. 26. Antoine Vergote, op. cit. P. 156. 27. Newbegin, op. cit. P. 9. 28. M.H. Khalil, ‘Paradigms, Fantasization of Technology, and De-conservation’, African Centre for Environmental Studies Working Paper Series, May, 1997. Pp. 26-7. 29. M. Heykal, The Life of Muhammad, (I. al-Faruqi, trans.), Bloomintong, American Trust Publication, 1976. Pp. 180-3. 30. S. Kumo, ‘The Constitutional
Conference: A Proposal for a Proper Federal System’, in A. Mahdi et al (eds.)
op. cit. P. 283. |
