Work Rules: How International NGOs Build Law in War‐Torn Societies

• DOI: http://doi.org/10.1111/lasr.12138
• Published date: 01 June 2015
• Date: 01 June 2015

Work Rules:

How International NGOs

Build Law in War-Torn Societies

Mark Fathi Massoud

Drawing on socio-legal literature and fieldwork in South Sudan, this article

argues that international aid groups operating in conflict settings create and

impose a rules-based order on the local people they hire and on the domestic

organizations they fund. Civil society actors in these placesexperience law’s soft

power throughtheir daily, tangible,and mundane contact with aid agencies. As

employees they are subject to contracts and other rules of employment, work

under managementand finance teams, document routineactivity, and abideby

organizational constitutions. In analyzing how South Sudanese activists con-

front, understand, conform to, or resist these externally imposed legal techni-

ques and workplacepractices, this article decentersstate institutions as sites for

understanding law’s power and exposes how aid organizations themselves

become arenasof significant legal and politicalstruggle in war-torn societies.

The purest type of exercise of legal authority is that which employs a

bureaucratic administrative staff.

-Max Weber, Economy and Society (1978, 220)

I’m put in a cage [in civil society]. It’s hard for me to believe that working

with the United Nations or an international NGO will give me freedom.

-Interview with Dominic, youth activist and NGO program

manager, in Juba, South Sudan (June 2010)

1

For helpful feedback, the author thanks Ziad Al-Khatib, Kirsten Anker, Mark Antaki,

AdelleBlackett, Aziz Choudry, LynetteChua, EvanFox-Decent,Amanda Fulmer,Allan Hutch-

inson, Robert Leckey, Zeynep Kasli, Karen Knop, Michael McCann, Adam Millard-Ball, Steve

Smith, Shauhin Talesh, the editors, and the anonymous reviewers. Special thanks to Leila

Kawar, whose collaboration with the author refined ideas in this article. The author is also

grateful to audiences at McGill University Faculty of Law, University of Toronto Faculty of

Law,Duke University Kenan Institute for Ethics,University of Washington ComparativeLaw

and Society Studies Center, and at WesternPolitical Science Association and Law and Society

Association conferences, where earlier versions of this article were presented. Research was

funded by grantsfrom the University of California, Santa Cruz. This article would nothave

been possiblewithout thekindness of many respondentsin South Sudanand Sudan.

Please direct all correspondence to Mark Fathi Massoud, Department of Politics and

Legal Studies Program, University of California, Santa Cruz, CA 95064; e-mail: mmas-

soud@ucsc.edu.

1

All names herein have been changed to preserve confidentiality. This article uses

“Sudanese” and “South Sudanese” interchangeably as did those interviewed in South

Sudan.

Law & Society Review, Volume 49, Number 2 (2015)

V

C2015 Law and Society Association. All rights reserved.

333

While conducting research in South Sudan in the years lead-

ing up to its 2011 secession from Sudan, I met with a justice of

the Supreme Court. South Sudan had just emerged from one of

Africa’s longest and deadliest civil wars and, aside from a single

petition on his desk, there were no legal proceedings before the

court. His computer was off (there may not have been electricity).

His office was sparse. Down the road from the court, the legisla-

tive assembly was at the time still drafting and debating legisla-

tion to govern the country after the war’s end. In a territory the

size of France, the South Sudanese Bar—a dozen or so lawyers at

the time—could easily be squeezed into a small sitting room.

What forms does law take in new or weak states like South

Sudan? When a national government is emerging, legal doctrine

and regulations are under development, and lawyers and federal

judges are in short supply, where is the law? Citizens historically

have experienced legal culture through interactions with local

courts, chiefs, and military officials applying distinct conceptions of

tradition, community, and authority (Deng 2011; Leonardi 2013). A

parallel story can also be told of law’s power in civil society. Juba,

South Sudan’s capital city, has teemed with activity from dozens of

international aid groups and non-governmental organizations

(NGOs) that arrived after the war to build up state institutions and

the rule of law. In addition to their laudable substantive goals of pro-

moting human rights and democracy, these groups also brought

with them a common set of internal management and human

resources procedures rooted in bureaucratic rules and abstract legal

logic. Junior South Sudanese staff members are required to assimi-

late to and abide by these foreign managerial rules, and South Suda-

nese NGOs are encouraged to replicate them. These legal processes

rooted in standardization and formalization are controlled by expa-

triate elites and reside outside the purview of domestic courts, legal

officials, and lawyers. Among civil society groups in war-ravaged

South Sudan, an unexpected legal order has flourished. It is a legal

order predicated not on democratic authority, judicial power, or

human rights buton plain knowledge of routine organizational prac-

tices, documentation procedures, strategic plans, and written files.

While participating in these juridical practices advances local acti-

vists’ legal consciousness and knowledge of international law, work-

place directives, and spreadsheet menus, it paradoxically disables

them from organizing effectively and making their own rights claims

when job-related grievances arise against employers.

When state regulations are under development or weakly

enforced, Western aid groups have wide latitude to construct the

terms of their relationships with local employees and organizations,

drawing from regulations and procedures used in home offices

334 Work Rules

and then exported to field offices abroad. Almost invariably, this

dynamic subordinates local personnel to expatriate managers who

arrive to South Sudan with preconceived notions of how traditional

authority operates and then attempt to replace it with bureaucratic

authority in the name of modern professionalism. To the South

Sudanese staff, the policies enforced by these managers generate a

rules-based and technical order. Its mundane technologies—organi-

zational constitutions, employment contracts, staff handbooks,

reporting requirements, and accounting systems—become part of

an everyday legalism pervading the lives of civil society activists. By

describing this legal order and analyzing its impacts on the legal

consciousness of civil society actors, this article illuminates the

unlikely spaces that law inhabits in conflict settings and a politics of

aid work that privileges technical skill over rights mobilization, that

pressures local activists to accept foreign bureaucratic forms, and

that ultimately entrenches rather than topples historic inequalities

between foreign aid workers and their local staff. In these ways, it

is through law’s soft power—its capacity to reframe political conflict

and structure ongoing relationships—and not only its power to

compel that law exercises influence in war-torn societies.

In this article, I first situate my research investigating legal

techniques and workplace practices in conflict settings in the con-

text of socio-legal literature on judicial politics, humanitarian inter-

vention, and organizational behavior. Second, I describe the field

research methods I used in this inquiry. Third, I detail how law

operates in aid agencies, its impacts on South Sudanese employees,

and sites of resistance to the new hierarchies that organizational

rules introduce. Finally, I conclude by discussing the implications

of the diffusion of bureaucratic legal orders for socio-legal scholar-

ship and for civil society development in fragile states.

Locating Law in Humanitarian Organizations

Legal scholars and social scientists have been preoccupied

with finding law in the most likely places—in courts in settings

where courts are strong, or in human rights and rule-of-law pro-

motion efforts in settings where courts are weak. Socio-legal stud-

ies of judicial power have shed light on the relative strength of

courts across regions and regime types.

2

But socioeconomic

2

Classic studiesof judicial review in the United States(Bickel 1962; Casper 1976; Dahl

1957; Rosenberg 2008) have spurred comparativeresearch on courts in East Asia (Ginsburg

2003), Europe (Cichowski 2007), sub-Saharan Africa (Ellet 2013), and Latin America

(Helmke and Rios-Figueroa 2011; see also Woods and Hilbink 2009). Recentwork has simi-

larly calledattention to the functions of courtsin authoritarian states (Cheesman2011; Ghias

2010; Ginsburgand Moustafa 2008; Massoud2013; Moustafa 2007; Stern 2013).

Massoud 335