Lawless or Bound by Law: Understanding the Causes and Consequences of Rebel Law
What is rebel law? How does it vary across rebel groups? Is it congruent with state and international laws? Why or why not? Does the degree of congruence impact conflict resolution?
For many years, policy and scholarly communities labeled conflict zones like Afghanistan, Somalia, and elsewhere "failed states" or "lawless places." According to a nascent body of research, however, conflict zones are far from lawless. In particular, self-adopted laws governing rebel groups are common and often have legitimacy from civilians. Despite the prevalence of rebel law, scholars have yet to produce any systematic cross-national measurement of the concept or analysis of its causes and consequences. This book proposes a new measure and theoretical framework for identifying and comparing group-level rebel laws across several dimensions of governance: property rights, justice, social diversity, and authority. It will identify the variation in the type of legal institutions rebels use, how extensive their legal orders are, and how congruent they are with the incumbent government's laws and international laws. Next, it will examine whether the degree of legal congruence between former rebels and incumbents has implications for civil war outcomes, including why these groups support nonviolent conflict resolution even in cases where their laws seem irreconcilable and fighting has been long-standing.
For the first portion of the book, I examine what law is and how it varies across groups. To this end, I put forth a conceptualization of law as a system of rules intended to serve a central function of governance: dispute resolution. This concept follows from a line of jurisprudence and institutional economics that allows scholars to examine law's functional purpose instead of state-like attributes (Berman et al. 1996; Benton, 2002; Leeson, 2008; Also see Provost, 2021). An implication is that states do not have a monopoly on law (Helmke and Levistky, 2004).
While scholars have noted that rebel groups exhibit law emphasis is on formal state-like attributes: codification in constitutional form, some form of court, or policing (See Mampilly, 2011; Arjona, 2016; Huang, 2016; Loyle, 2016; Ginsburg, 2019; Provost, 2021; Sexton and Wright, forthcoming). Yet, rebel rules generally lack these attributes because rebels are constrained by their illegality and the armed conflict and/or because they are derived from more traditional/customary sources. This limits our understanding of what rebel law actually looks like and how it varies. Expanding the scope of "what law is" allows us to transition from questions like "do rebels have law (e.g., constitutions or courts)?" to "what laws do rebels have (rules on justice and property rights)?" - the latter allowing for a more complete picture of institutional formation and implementation by rebel groups.
The second portion of this book examines the variation of rebel law across rebel groups. While all rebel groups should have some rules, not all groups will have the same rules. Groups can exhibit very different views of right and wrong (Sen, 2011; Loyle and Binningsbø, 2018); the opposite is also true, they can have similar, even identical, views of right and wrong. What are the sources of this variation? For instance, the Tamil Tigers (LTTE) rebel group incorporated Tamil cultural norms for land inheritance, other aspects of family law, and excise norms that would not counter the Tamil culture, such as the caste system (Sivakumaran, 2009). While the necessary condition of dispute resolution for group survival partly explains why we observe rebels across conflicts engaging in law-making/implementation (e.g., FMLN and Taliban both had laws on land ownership and procedural justice), the LTTE also exhibits a cultural source. Theoretically and empirically understanding the sources of varying rebel laws is essential because it can clarify our selection and endogeneity concerns when examining relationships between rebel law and civil war outcomes.
The third portion of this book focuses on how rebel law may facilitate or obstruct conflict resolution, particularly with incumbent governments. Even when we observe comprehensive peace agreements with equitable power-sharing and third-party monitoring, mechanisms that we expect would lead to a durable peace, civil wars recur 50 percent of the time. To explain this, I start with the simple idea that because peace agreements are contracts for resolving current conflicts, implementing them can raise unforeseen or unresolved issues like any other general contract. The second key assumption is that future conflicts are more likely to be resolved nonviolently when former belligerents perceive a governing legal system as (sufficiently) legitimate. I argue that this perception of legitimacy is partly a function of the degree to which the actors' laws are congruent. The greater the level of congruence between their laws, the greater their ability to jointly create or select a legitimate legal mechanism to redress future conflict.
Throughout the book are empirical chapters where I use quantitative analysis of an original large-N cross-national dataset and qualitative case studies of unique archival data. This approach will leverage the strengths of theory-driven research and diverse methodologies, combining (a) original macro-level cross-national data that will provide insight into the causes of rebel law and its effects on national-level civil war outcomes and (b) unique archival subnational and group-level qualitative data that will establish the sequence of steps between rebel law and conflict resolution.
The final book chapter explores the promises and pitfalls of arbitration. It concludes with a discussion of arbitration being used in a handful of cases, and how it may be a promising legal mechanism for reconciling diametric legal principles and resolving conflict nonviolently.
As a whole, the book makes several contributions. First, it charts a new course for understanding civil wars by clarifying an understudied parameter: the legal foundations of peace. It will show how armed conflict and law are not mutually exclusive but rather intimately intertwined, and how understanding the laws groups use to resolve disputes within is crucial for understanding how they prefer to resolve conflict with other groups. The link between rebel law and conflict will generate new knowledge to aid our understanding of civil war processes and outcomes, including rebel governance, state-building, civil war recurrence, and conflict resolution. It advances scientific knowledge of civil wars by enabling quantitative research and facilitating qualitative comparison of historical cases. It provides a large-N dataset of rebel and incumbent laws based on the systematic coding of information from various primary and secondary sources, including archival documents detailing rebel law. It also details how similar or different these laws are across rebel groups and how congruent or not they are with incumbent laws. As a result, this book further opens the black box of rebel law in ways that can highlight how and why conflict resolution among rebels or between rebels and states can vary.
Second, this book can aid in more successful peace negotiations and increase the chances of a durable peace between warring factions—a significant facet of U.S. foreign policy and international security. It highlights how understanding the relationship between these groups' laws may help explain why, when, and how these groups can support nonviolent conflict resolution, even in cases where group laws seem irreconcilable and fighting is long-standing. While significant work has attributed a durable peace to the distribution of power, territory, or other resources, this book places law as an important conflict resolution facilitator. Rather than understanding civil war and law as mutually exclusive processes, my research shows that they are intimately intertwined as they overlap, interact, and can produce significant outcomes for peace. Ultimately, civil wars are notoriously intractable, violent, and costly. They have a pattern of spreading to other countries and creating significant constraints on the global order, from destabilizing it through violating international norms or pitting major powers against each other to straining its resources due to forced migration flows, obstruction of human development, and environmental damage. This research can potentially mitigate the consequences of civil wars by providing a deep understanding of rebel law and its implications for conflict resolution.
*This research has been generously supported by theNational Science Foundation (Award #2017173), The John Sloan Dickey Center for International Understanding at Dartmouth College, Purdue University, the University of Pennsylvania's Office of the Vice-Provost for Research, Rice University Social Sciences Research Institute, and the Institute for Humane Studies at George Mason University.
The above photo includes pamphlets made by the FMLN and other rebel groups during the Salvadoran Civil War. It was taken during my Jan 2019 archival visit to the UCA, San Salvador, El Salvador.