Abstract
Reviewing literature on rule of law, this article puts forward a ‘bottom-up’ approach of the rule of law that encourages an analysis of three aspects (i) the ability of the legal framework to confer the capacity of self-determination upon individuals (ii) the extent to which the legal framework is reciprocal/ interactional, in that it creates expectations between governing and governed and (iii) the contribution made by ordinary individuals in the form of participation with or contribution to communities of practice and law in everyday life. The paper then applies this framework to the law and rules in application in territory under the control of armed groups, considering individuals’ relationship with rules in these spaces and examining their different ways in which they may affect civilians’ lives.
Highlights
It is increasingly noted in literature on non-international armed conflicts that armed groups fighting in opposition to the government often promulgate law and set up legal institutions in the territory under their control
Reviewing literature on rule of law, this article puts forward a ‘bottom-up’ approach of the rule of law that encourages an analysis of three aspects (i) the ability of the legal framework to confer the capacity of self-determination upon individuals (ii) the extent to which the legal framework is reciprocal/ interactional, in that it creates expectations between governing and governed and (iii) the contribution made by ordinary individuals in the form of participation with or contribution to communities of practice and law in everyday life
A recurring question examined in these studies is whether ‘armed group law’ can be seen to be ‘law’ for the purposes of human rights and international humanitarian law norms that rely on recourse to domestic law for their implementation, such as the prohibition of arbitrary detention and the right to a fair trial.[1]
Summary
It is increasingly noted in literature on non-international armed conflicts that armed groups fighting in opposition to the government often promulgate law and set up legal institutions in the territory under their control. The second half of the article uses these ideas as an evaluative lens to enquire whether and to what extent laws and rules in spaces controlled by armed groups may bring value to civilians and the different ways in which civilian communities interact with laws and rules in these spaces It does this by drawing on literature from the growing scholarly field referred to as ‘rebel governance.’. Studying the provision of public goods and the establishment of norms and rules regulating daily life in territory controlled by armed groups fighting in opposition to the government, this interdisciplinary literature offers theoretical as well as empirical insights.[3] The article draws on wide range of empirical studies and reports on armed groups and legal institutions relating to Afghanistan, Colombia, India, Iraq, Ivory Coast, Nepal and Syria By addressing these questions, the article seeks to add value in four distinct ways. This requires a broadening our observational lens so that we look at the law and legal institutions of armed groups in a positive sense and seek an understanding of how rules passed by armed groups impact upon civilians’ lives, how civilians interact with and use rules and laws passed by armed groups and how different forms of legal consciousness develop in these spaces
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