The logic of non-enforcement: Entanglements between state and non-state law in Bangladesh

Abstract

This article investigates the ways in which state and non-state laws become intricately intertwined in practices of conflict resolution in rural Bangladesh. Instead of inhabiting separate legal universes, I show how state and non-state laws become entangled in what I call the logic of non-enforcement. People in rural Bangladesh frequently appeal to state courts—yet they frequently do so not in order to get binding and enforceable verdicts, but to alter the outcomes of a non-state justice institution like the shalish in their favour. This leads to unexpected patterns of political accountability: people expect local elected politicians to intervene in the state courts, stop pending cases and bring them back to community-based resolution in non-state fora. Elected politicians are thus held accountable according to their ability to prevent the enforcement of state laws. At the same time, state agencies frequently bring legal cases to trial in non-state courts. I conceptualise this blurring between state and non-state laws, its underlying social dynamics as well as its normative justifications as a distinct ‘logic of non-enforcement’. According to this logic, state courts decisively affect the outcomes of processes of conflict resolution in rural Bangladesh while state laws nonetheless are systematically not enforced.

Keywords

non-state justice Bangladesh shalish documents conflict resolution

I Introduction

In late 2011, I visited the premises of the Chittagong Court Building. Built from red sandstone, the court complex reflects the vivid legal history of what is now Bangladesh. Opened in 1898, it has witnessed landmark trials against people resisting British and Pakistani rule, including Masterda Surya Sen, Lakonath Bol, Ambika Chakraborty and Ananta Singh. The building itself blends Mughal and British colonial architectural styles as well as modernist elements in the new court building.¹ Located on a hill, a growing number of tin sheds and other illegal structures along the hill slopes have increasingly encircled the court premises in recent years.²

The court is a very busy place. As I visited, many people moved in and out of the various buildings. Judges, barristers, litigants, witnesses, and relatives filled the arched corridors that connect the various courtrooms and administrative offices. Inside these offices, usually piles of files tower behind and around well-organised desks where judicial officers pursue their work. The sheer amount of official paperwork in these offices points to an interesting puzzle: as several large-scale surveys have documented, the vast majority of people in rural Bangladesh has a clear preference for resolving disputes in non-state justice institutions (NSJI) rather than the state courts. At the same time, there are currently approximately 3.58 million cases pending in the lower courts alone.³ Yet, if most people prefer non-state to state courts, who files all these cases, and why?

This question gained prominence throughout my fieldwork on the recursive interactions between international norms and non-state courts in rural Bangladesh in 2011 and 2012 (Berger 2017). Here I argue that people in rural Bangladesh frequently appeal to state courts not to get binding and enforceable verdicts but to alter the dynamics of non-state justice institutions in their favour. This is what I call the logic of non-enforcement. According to this logic, state courts do have the capacity to affect the resolution of conflicts in rural Bangladesh without, at the same time, having the capacity to impose state law.⁴ State and non-state law are deeply entangled in ways that undermine neat distinctions between the two and thereby significantly complicate jurisprudential analyses based on systemic images of law, which take law to be a coherent and clearly demarcated system of rules distinct from adjacent normative claims.⁵ In contrast, I argue that ethnographic explorations of the state, and in particular the state’s legal system, help to appreciate law’s entangled character, where entanglement refers to a state where two or more entities are connected in a way in which neither of the entities is explicable without reference to the other (Krisch, forthcoming). While constitutively connected, the entities nonetheless are not reducible to each other; they do not blur into an indistinguishable whole. Instead, they remain discernible entities frequently taken to exist apart by those who engage them.

In the case of state and non-state laws, the entanglements I focus on operate via material artefacts, in particular documents and other kinds of official paperwork. Drawing on recent advances in the ethnography of bureaucracies, I argue that focusing on the circulation of official paperwork as material artefacts is analytically productive. As Ben Kafka has argued, scholars across the humanities and social sciences ‘…have discovered all sorts of interesting and important things by looking through paperwork, but seldom paused to look at it’ (Kafka 2009: 341). Looking at the circulation of paperwork in rural Bangladesh, the entanglements between state and non-state laws become visible. Yet, these entanglements are not an exclusively domestic matter or spatially confined to the territory of Bangladesh. Instead, I argue that focusing on legal entanglements also challenges spatial imaginations that distinguish between local, national, and international levels. Instead of constituting ontologically different spheres of action, ‘the international’ is very present in seemingly local processes of conflict resolution. At the same time, experience with these processes of conflict resolution have also been channelled into transnational policy discourses and shape current donor engagement with non-state justice institutions, not only in Bangladesh.

In sum, this article uses the ethnography of the state in Bangladesh to complicate the sharp conceptual distinctions between state and non-state laws. Its overall aim is to sketch the complex legal landscape of rural Bangladesh to show how state and non-state laws as well as the domestic and the international become intertwined without, at the same time, becoming reducible to each other. After a discussion of key insights from recent advances in the ethnography of bureaucracies, the article introduces central judicial institutions organising processes of conflict resolution in rural Bangladesh before turning to the analysis of entanglements between state and non-state laws as well as between ‘the local’ and ‘the international’.

II Anthropologies of bureaucracy

In a recent article in Contributions to Indian Sociology, Baxi (2019) has turned analytical attention to the quotidian artefacts and basic infrastructures through which ‘the law’ operates. As she argues, ‘The life of legal files, signatures and stamps; and stories of defects, registries and notaries are usually relegated to the routine and boring bureaucratic functioning of the courts devoid of any jurisprudential insight’ (ibid.: 2). By turning attention towards material objects and the ways in which they make and unmake specific social relationships, the sociology of law can enter a productive dialogue with recent developments in anthropological scholarship on bureaucracies more generally. While a varied and rapidly expanding field, most ethnographies of bureaucratic organisations that have been produced in recent years share as common denominator a critical engagement with Max Weber’s highly influential account of bureaucratic rationality. In particular, Weber’s neglect of the significance of the everyday objects of bureaucratic operations has been a prominent target of critique (Hull 2012a). Among these objects, files and other kinds of bureaucratic paperwork constitute a central research focus of recent ethnographic inquiries into the everyday life of bureaucratic organisations. While central to bureaucratic processes, Weber acknowledged the importance of written documents more in passing (Weber 1978: 957). While highlighting the combination of written documents and disciplined bureaucrats as the central precondition for the operation of bureaucratic rule, Weber clearly prioritised the latter over the former. He thus dismissed the account of the Russian anarchist Bakunin who had advocated the destruction of written land records as revolutionary practice. Weber dismissed this suggestion as ‘naïve’, arguing that the inculcated rules among administrative officials rather than mere paperwork were responsible for the perseverance of a given political system (cf. Hull 2012a: 257). For Weber, documents are thus mere instruments. They are neutral carriers of information, which allow trained and disciplined members of the bureaucratic cadre to work their rules upon specific cases at hand.

In contrast to his understanding of documents as simple carriers of information, Hetherington (2011) has argued that documents do not carry information but rather make information possible to begin with. As he argues, ‘Documents are always encountered by particular people in particular contexts, and their interpretation is never separable from the contingencies of the encounter … it is in the variable interpretative encounters that people create the information that documents supposedly contain’ (ibid.: 8). In his account of what he calls ‘guerrilla auditors’ in Paraguay, Hetherington carefully delineates how peasant activists have responded to internationally driven models for greater transparency and accountability by embarking on new forms of politics built around contestations of official documents. Rather than depoliticising administrative processes, Hetherington shows how the drive towards greater transparency constitutes its own kind of politics and produces new forms of resistance. In a similar way, Hull has shown in his ethnography of the bureaucracy in Islamabad, Pakistan, how ‘… documents are not simply instruments of bureaucratic organizations, but rather are constitutive of bureaucratic rules, ideologies, knowledge, practices, subjectivities, objects, outcomes, and even the organizations themselves’ (Hull 2012b: 253). The accounts of Hetherington and Hull thus almost invert Weber’s analysis as it is not any more the bureaucracy that produces paperwork but the practice of producing paperwork that becomes constitutive of bureaucratic organisations and, ultimately, the state. As Hetherington concludes: ‘….at its core, the state functions through the creation, circulation, and endless interpretation of documents’ (Hetherington 2011: 151).

What does this mean for our understanding of law and legal analysis more broadly? At its core, I argue, recent developments in the ethnography of bureaucracies also undermine two core distinctions prominent in jurisprudential analysis—the distinction between formal and informal as well as between state and non-state laws. Regarding the first distinction, the production of written paperwork has been stylised as one of the very core attributes that separates the formal from the informal. Helmke and Levistky, for example, define ‘…informal institutions as socially shared rules, usually unwritten, that are created, communicated, and enforced outside of officially sanctioned channels. By contrast, formal institutions are rules and procedures that are created, communicated, and enforced through channels widely accepted as official’ (Helmke and Levitsky 2004: 727). Yet what happens when written documents transgress the boundary between the formal and the informal, for example when state documents are produced in non-state justice institutions? Or when non-state institutions produce carefully-written verdicts while state courts settle complex cases in backroom negotiations? In these cases, the tacit presupposition that state institutions are formal whereas non-state institutions are informal becomes untenable. Quite often, what we recognise as ‘the state’ operates in a highly informal manner, while the non-state can be surprisingly formal. Rather than analysing formal and informal institutions, in what follows, I will speak of state and non-state laws. However, this boundary is also highly porous. If we trace individual artefacts such as official documents through the various sites in which they are enacted, state and non-state institutions do not inhabit separate legal universes but are connected. Importantly, although connected, they do not become reducible to each other as my interlocutors frequently drew a conceptual distinction between state and various shalish courts, thus displaying a sophisticated understanding of the complex legal landscapes they were navigating. In the remainder of this article, I first sketch the key institutions that make up this legal landscape and then show how state and non-state laws become entangled in the logic of non-enforcement.

III The legal landscape in Bangladesh

Non-state justice institutions constitute the preferred site for the resolution of everyday conflicts in rural Bangladesh. While most of my interlocutors, over two rounds of fieldwork in 2011 and 2012, expressed a clear preference for non-state over state institutions, this evidence might seem anecdotal. Yet also several large-scale surveys commissioned by international agencies in the course of their upcoming project interventions in non-state institutions confirmed this trend. Among the almost 8,000 participants in a UN survey across six administrative divisions of Bangladesh, 77.6 per cent preferred to resolve emerging conflicts in shalish courts (discussed below). Less than one in five respondents would even consider the possibility of seeking to resolve the conflict in a state court (Rahamāna 2010: 85).

The shalish

The state neither recognises nor regulates shalish courts. These courts thus exist in all sizes and shapes. There are shalish with five and 150 people, negotiating anything from cattle trespassing and petty neighbourhood disputes to what under state law would be serious criminal offences like bodily injuries or murder. While local elected politicians, especially the Union Parishad Chairmen, usually play a central role in shalish cases, they also draw on myriad other local authorities to address pertinent conflicts within a village community or sub-community. Depending on case and contest, these include elected village representatives (ward members), landowners, and members of business associations. Although a precolonial institution, shalish courts are far from static. Embedded in existing social relationships, they reflect broader processes of social transformation and change. These changes and complex transformations are crucial and complicate three common misconceptions about shalish courts as ‘traditional’ institutions. These misconceptions evolve round the notion of shalish courts as ostensibly local, their assumed normative grounding in the prioritisation of reconciliation over retribution, and their alleged ease of access, especially for poor and marginalised people.

Among international donor agencies, shalish courts have gained prominence over the past two decades as sites for the promotion of human rights and ‘good governance’ more broadly. In the narrative of international donors, the advantages of shalish over state courts are their seeming efficiency and legitimacy. Although characterised as an ostensibly local institution, shalish courts are not only embedded in existing social relationships but also deeply affected by national and transnational forces. Ali Riaz (2005) has shown how, almost in a mirror image of liberal international donor agencies, transnational religious movements have aimed to use shalish courts to advance particular interpretations of Islamic law. Focusing primarily on high-profile fatwa cases that have attracted a significant amount of national and international attention, Riaz argues that non-state institutions thus become the tool for political Islam in Bangladesh.

In contrast, Siddiqui argues that the kinds of high-profile cases that constitute the empirical backbone of Riaz’s argument do not reflect the quotidian dynamics of shalish courts but are rather exceptional cases, which become highly politicised and hence visible beyond rural Bangladesh precisely because they cater to both secular nationalist narratives and transnational liberal feminism (Siddiqi 2011a: 81). Criticising such reductionist secular narratives, Siddiqui has offered close and careful analyses of some of these fatwa cases. Reconstructing the complex dynamics in which these cases consolidate established local power relations and reproduce gendered and classbased inequalities, her analyses powerfully undermine intellectual shortcuts that ‘…fall into the trap of collapsing patriarchy into religion/fundamentalism’ (Siddiqi 2011b: 193). My own research on non-state institutions in 2011 and 2012 strongly supports this analysis. Whereas transnational religious forces that result in the kind of spectacular violence and cruelty that Riaz is concerned about are rare, shalish courts are nonetheless non-state institutions with significant transnational links, including religious ones. Operating in ‘translocal villages’ (see Ashraf Hoque’s contribution to this special issue), shalish courts are affected by political dynamics in Bangladeshi diaspora communities. They are also significantly affected by party competition at the national level, as Lewis and Hossain (2019: 11–13) have shown. While being village level institutions and thus firmly embedded in the contextual complexities of specific communities, shalish are mischaracterised as exclusively local institutions.

A second misperception concerns the normative orientation of the shalish. Shalish, like non-state justice institutions in general, are often portrayed via a dichotomous distinction between retribution and reconciliation. Whereas the logic of state law is one of retribution and the punishment of offenders, the logic of non-state institutions is reconciliation and the recreation of harmonious relationships within a (village) community. The distinction between justice and reconciliation has a long historical trajectory and is currently part of a much larger transnational discourse on Alternative Dispute Resolution (ADR). Reconstructing Spanish colonial discourses in Mexico, Laura Nader (1990) has shown how the prioritisation of harmony over justice has been part of a colonial strategy vis-à-vis indigenous communities. Unmasking the ‘harmony ideology’ as a tool for domination, Nader is also very critical of the current excitement about ADR as complementary part of state legal systems. In the case of the United States, Nader shows how a concern with harmony and reconciliation rather than justice occurred precisely at that point in time when the feminist and civil rights movements thought to redress injustice via state courts (Nader 2002: 139).

In a similar way, some of my interlocutors in Bangladesh who were actively involved in Public Interest Litigation and the judicial remedy of historically grown injustices warned against the danger of focusing on shalish rather than the state courts. As Pereira, then head of Human Rights and Legal Aid at BRAC, argued in our conversation, the exclusive focus on shalish courts turns into a bifurcated system of justice for the rich (in the state courts) and justice for the poor (in the shalish).⁶ Yet justice for the poor quickly turns into poor justice. In contrast to the frequent assertion of the ease of accessibility of shalish courts, I found throughout my field research that accessing a shalish could be incredibly difficult, especially if conflicts touch upon established local hierarchies. For example, in cases of land disputes between parties of highly unequal social standing, I found that the less powerful parties quite often experienced tremendous difficulties in initiating a shalish.

Village courts and arbitration councils

In between the state and the shalish court system exists a set of so-called ‘quasi-formal institutions’. The village courts and arbitration councils quite closely resemble the set-up and internal operations of shalish courts and are thus embedded in established local patterns of conflict resolution beyond the state. At the same time, village court and arbitration council decisions are recognised by the state and enforceable through state agencies. At the level of formal legal recognition, there are two key differences between village courts and arbitration councils. First, whereas the village courts are recognised for the trial of minor civil and criminal offences (based on secular law codes), the arbitration councils are exclusively tasked with the trials of specific aspects of state-sanctioned Muslim Family Law. Second, in contrast to the village courts, which only have to adhere to procedural requirement, the arbitration councils have to adhere to substantial provisions inscribed in state law. These include provisos for the dissolution of marriages as well as child custody.

IV Entanglements between state and non-state laws

Core legal texts very clearly demarcate the boundary between state and non-state laws and circumscribe the nominal jurisdiction of the intermediary institutions of the village courts and arbitrations councils. Yet, in the quotidian practice of conflict resolution, these neat boundaries start to blur. What follows is based on eight months of field research conducted in late 2011 and 2012. The examples are drawn primarily from Madaripur in Dhaka District, where the Madaripur Legal Aid Association (MLAA) has decisively shaped patterns of conflict resolution. In Bangladesh, MLAA has pioneered NGO interventions in non-state justice institutions as strategy to advance the empowerment of women and marginalised groups within village communities. Throughout my fieldwork in 2011 and 2012, I was surprised by the state’s conspicuous presence in non-state court proceedings. In most cases, this presence consisted in official documents and all kinds of paperwork issues by state agencies. Yet occasionally, it also involved officials of the state, including members of the judiciary and police.

Talking to a Union Parishad Chairman in Madaripur in late 2011, he recounted his involvement in the following incident, which is exemplary of the entanglements between state and non-state laws that I repeatedly encountered in the course of my fieldwork. He was called upon to mediate in an inheritance conflict between two brothers who were supposed to inherit equal shares of their deceased father’s land. Yet the older brother sold a portion of this land, about a quarter, and then suggested to share the remaining three quarters equally. Feeling unduly disadvantaged, the younger brother initiated a shalish after having tried to persuade his older sibling to compensate him for the lost land, without success. Yet the initial shalish ruled in favour of the older brother.

Dissatisfied with the outcome, the younger brother filed a case with the state’s District Court. Once notified about the pending court case, the older brother approaches the UP Chairman and asks him to intervene on his behalf in the District Court. The chairman, as he told me, approached the court, stopped the pending case there, and reconvened a shalish, this time demanding a modest compensation to be paid to the younger of the two brothers. Whereas his first engagement of the shalish had been unsuccessful, the subsequent appeal to the state courts allowed the younger brother to extract some benefits from the second shalish case. According to my interlocutor, this case is by no means exceptional. Instead, he argued that stopping pending cases belonged to his duties as a chairman to ensure the resolution of conflicts in non-state fora at village level. However, this task frequently includes interventions with state courts where filed and pending cases need to be stopped and ultimately withdrawn.

The case recounted by the Union Parishad chairman in Madaripur exemplifies a broader pattern of the process of conflict resolution in rural Bangladesh. Throughout my fieldwork in 2011 and 2012, it became increasingly clear that people in rural Bangladesh frequently appeal to state courts—yet not to get binding and enforceable verdicts but to alter the outcomes of non-state justice institutions (like the shalish) in their favour. The simultaneous appeal to state law and the circumvention of its implementation is what I have conceptualised as a distinct ‘logic of non-enforcement’. According to this logic, people can draw strategically on symbolic representations of the state to alter the dynamics of non-state institutions.

Paradoxically, state courts thus decisively affect the outcomes of processes of conflict resolution in rural Bangladesh while state laws nonetheless are not systematically enforced. Officers of state agencies, including the police and judiciary, are complicit in the maintenance of the systematic non-enforcement of state law. Several police officers at different ranks confirmed in our conversations that they had referred cases that were filed at the police station and fell into their competence to a shalish court. The reasons they cited were both pragmatic and normative: they highlighted the significant delays that might incur if cases were exclusively trialled in over-burdened state institutions. They also argued for the normative desirability of resolving conflicts at the community level wherever possible as only community-level processes of mediation could lead to genuine reconciliation and hence lasting resolution of conflicts. Representatives of the judiciary I talked to throughout my field research employed similar lines of reasoning.

Representatives of the state judiciary as well as the state’s enforcement agencies echoed the arguments of many of my interlocutors in rural Bangladesh. As one of them argued: ‘The state courts will not sit and discuss your case thoroughly. There are too many cases in the courts; they have to decide quickly. It is much better to have a shalish with good representatives, who know both parties and can discuss the case fully.’ A complementary line of argument emphasised that ‘… in the state courts, one party is right, the other loses. But in the shalish, both parties can be brought to an agreement’. Overall, among my interlocutors, there was thus not only a clear distinction between state and non-state justice institutions as well as their underlying logics of conflict resolution, but also an equally clearly articulated preference for shalish over state courts. Yet this was a very nuanced and careful preference as many people, especially those not in privileged positions within village hierarchies, also pointed to the distortive effects of power and influence on shalish decisions.

Criticising corrupt practices and the reproduction of power relations, many of my interlocutors nonetheless upheld idealised notions of the shalish as a normative yardstick for the resolution of conflicts within village communities. At the same time, they generally rejected the resolution of conflicts in state courts as viable or importantly, as a normatively desirable alternative. The often-attested ‘distance’ of state courts is thus not only a spatial category; it also refers to an emotional distance of the state from the intricacies of social relations that constitute village communities.

These current manifestations of emotional distance unfold in larger historical trajectories of mutual distrust between the state, and especially its representatives in the upper echelons of law-making and enforcement institutions, and people in rural Bangladesh. Whereas the colonial state frequently characterised Bengal as a ‘litigious and turbulent place’ (quoted in A. Karim 1970: 281) and its Muslim population as ‘…the most quarrelsome, litigious, vindictive race in India’ (quoted in Hashmi 1994: 101), the deprecated population reciprocated distrust and suspicion vis-à-vis colonial and postcolonial state structures. As Nazmul Karim (1953) has shown in his classic study of ‘Changing Societies in India and Pakistan’, attempts by the colonial state to encapsulate village-level practices have repeatedly encountered fierce resistance. The subsumption of indigenous legal forums like the pre-colonial shalish to the state’s penal and civil codes has never been fully completed and reliance on shalish rather than state courts has constituted attempts of asserting village autonomy vis-à-vis increasingly intrusive state practices. Historically, the logic of non-enforcement unfolds against the backdrop of a long tradition of defiance of the state, including its judicial institutions and broader coercive apparatus. It is thus part of an intensifying yet persistently incomplete processes of state encapsulation in which village-level legal practices have remained distinct from state law, not only for prudential but, above all, normative reasons.

The normative aversion to state-led law enforcement stands in notable contrast to the kinds of demands that Schulz and Kuttig discuss in the introduction to this special issue. Focusing on the urban student movement that developed as reaction to a series of fatal traffic accidents in Dhaka in July 2018, they argue that the students’ demands for a stricter enforcement of traffic rules ‘…reveal deeply entrenched normative expectations of what [the] state should look like and the significance of the idea of a rule-enforcing rational-legal state’ (p. 127). This is a very important argument, showing how demands for the enforcement or non-enforcements of state laws are neither uniform nor universal within Bangladesh.

Schulz and Kuttig focus on demands for the enforcement of laws generally governing highly anonymous interactions in a very metropolitan area. Traffic participants in Dhaka have, at least in most cases, hardly any immediate relationships with each other and are bound together less by social ties than by traffic congestions. In contrast, my research differs in terms of both context and set of laws. It concentrates on conflicts that are more intimate as they evolve around questions of family arrangements and/or land ownership. Predominantly set in rural communities, it also unfolds against the backdrop of much tighter social ties and mutual yet asymmetrical interdependencies, as they would emerge on the streets of Dhaka. Read in combination with the contributions by Schulz/Kuttig and Lacy/Mookherjee, this attests to the need for a disaggregated perspective on the state in Bangladesh in the realm of legal plurality including the complex entanglements that unfold between different bodies of law, and the politics of (non)-enforcement that they give rise to.

V Artefacts and the mediation of non-enforcement

In rural Bangladesh, the logic of non-enforcement constitutes an intriguing pattern of accountability. At least in part, local elected politicians and other political representatives are judged by their ability to intervene in state courts, stop pending cases, and bring them back to community-based resolution in non-state fora. This inverses liberal assumptions about the relationship of law and participation in democratic regimes where political participation is, first and foremost, directed at the alteration of state laws rather than their systematic circumvention. Similar patterns have been very prominently identified in India by Chatterjee (2004) in his analysis of ‘political society’ as the space where people make claims on the state via the circumvention of its own explicit rules. Whereas Chatterjee (ibid.) argues that the subversive practices of political society constitute an innovative form of postcolonial democracy, Nelson (2011, 2012) criticised this view for over-stretching the definition of ‘democracy’. The systematic non-enforcement of state law thus raises thorny normative questions as does the substitutive enforcement by non-state actors as pointed to by Schulz and Kuttig, especially if it is not facilitated by student activists but armed non-state actors like neighbourhood vigilantes or private security companies (e.g., Schröder 2018). While the deeper explorations of these normative questions are itself a subject for further research, the focus of the following analysis will be on the question: why does appealing to the state courts actually alter the dynamics of non-state justice institutions?

There are at least two reasons why the logic of non-enforcement works. The first has to do with what we might think of as the ‘disturbance capacities’ of the state. Given the widely attested inefficiency of the state judiciary, one might argue that filing a case with the state courts does not constitute a credible threat. Indeed, the backlog of cases as well as the average times for the resolution of, for example, land disputes severely undermine the enforcement capacities of state courts. Effectively, this means that the courts do not cast a ‘shadow of hierarchy’ that could force actors into compliance with non-state regulations, as they would otherwise need to fear sanctions from the state.⁷ While most of my interlocutors shared the assessment that no real threat of rule-enforcement emanates from the state, the majority of them pointed towards what we might think of as ‘disturbance capacity’: Having a case pending at the District or Magistrate Courts is very burdensome. It requires regular attendance at the court premise as well as financial resources for legal counsel and administrative fees. The courts thus become sites of harassment. As one Assistant Sessions Judge from Madaripur told me, his impression was that most cases brought before the court were actually motivated by the desire to harass the opposing party, for political or personal reasons.

In addition to the disturbance capacity of the state, I argue that there is a second reason for the functioning of the logic of non-enforcement. This has to do with the historically grown presence of the state in rural Bangladesh and, more precisely, with the symbolic mediation of this presence via material artefacts such as official documents. Although the enforcement capacities of the state might be limited, its material artefacts circulate widely and in particular the stamps, seals, ministerial logos, and bureaucratic emblems of official paperwork are widely recognised in rural Bangladesh. They are not only recognised; they are recognised as being important. This importance is not rooted in Weberian logics of bureaucratic rationality, in which documents are nothing but transparent carriers of information that would allow a cadre of well-trained bureaucrats to administer whichever matter at hand consistently, coherently, and impersonally. Instead, their value and utility for those who hold them far exceeds the nominal information inscribed on them.

Ethnographic research in other countries in South Asia and beyond has scrutinised similar processes in which documents acquired symbolic rather than merely instrumental importance. Gupta, for example, has shown in his study of the working of the bureaucracy in India, many people treated documents produced by the state as if they were ‘magical’ or ‘sacred objects’. And ‘…although subaltern and illiterate people were especially likely to treat written documents as objects with inherent powers, to some degree that view was held by all subjects of the state’ (Gupta 2012: 212). Gupta discerns the ways in which official documents are treated almost as ‘sacred objects’ by the ways in which they are kept, especially though not exclusively among poor villagers. Official documents are carefully wrapped in paper, the paper is then again wrapped in cloths, the cloth is placed in a metal container and, if available, the metal container is then stored within a glassed cupboard (ibid.). In rural Bangladesh, documents are kept in similar ways and treated with the same degree of reverence. Often when I asked people about their village court experiences, and whether they would allow me to have a look at the documents, solemn ceremonies followed. Boxes were taken out of cupboards, cloth was removed, layers of protective paper carefully opened, and village court files were produced, often with an air of pride. This was the case among literate and illiterate people alike. In general, also people who could not read documents would still recognise them; they would recognise how official they were, see whether they were signed, and how sophisticated this signature was.

Most of my interlocutors thus recognised symbols of the state as markers of authority. These markers prompt people to change their course of actions, but not in accordance with the substantial provisions of state law. Instead, the form and force of law are decoupled from its content (Baxi 2019: 6; Ghosh 2019). For the ethnography of the state, this means that the analysis of bureaucracies, including judicial bureaucracies, remains incomplete if it does not inquire into the myriad ways in which the artefacts of the state are enacted well beyond its most obvious confines. I have suggested the notion of the logic of non-enforcement to conceptualise the entanglements between state and non-state law. Tracking these entanglements also constitutes a possible pathway for comparative work and transregional analysis. This analysis can focus on both the limits of the state and its margins. Whereas a limit denotes a point beyond which an entity ceases to exist or operate, a margin is a relational category that implies the existence of a centre. The notion of a margin thus carries a significantly stronger normative connotation by describing people excluded from the state and the benefits it potentially provides. Most prominently pursued within the discipline of social anthropology, the ethnography of the state has tended to focus on those marginalised from the centres of power. According to Das and Poole, this focus on the margins is the key advantage of anthropology vis-a-vis adjacent disciplines as ‘…ethnography offers a unique perspective on the sorts of practices that seem to undo the state at its territorial and conceptual margins’ (Das and Poole 2004: 4). In contrast, Thomas Bierschenk has strongly criticised what he perceived to be anthropologists’ normative presupposition for critique.

Rather than focusing on the margins as privileged sites where the constitutions and operations of state power could be observed, Bierschenk argues for an anthropology of the state that focuses on the centres rather than the peripheries of state power. As he argues, ‘…the anthropology of the state should aim at comprehending state actors’ agencies, their constituted knowledge, their particular moralities and subjectivities and, perhaps most importantly, their own capacity for critique’ (Bierschenk 2018: 397). Regardless of one’s position within this debate over the ‘proper’ focus of the ethnography of the state, the analyses of legal entanglements can proceed either via focus on the margins of the state or on its limits. Limits here become the elusive points where the boundaries of the state are being construed, contested, and negotiated, for example when core functions of the state such as the provision of security become privatised (Grassiani and Diphoorn 2017).

VI Entanglements between the domestic and the international

So far, I have argued that the logic of non-enforcement entangles state and non-state courts in rural Bangladesh as artefacts and at times representatives of the former appear in the later while even members of the state judiciary frequently take shalish courts to be the only practically viable and normatively desirable site for the resolution of conflicts. Yet the analysis of the logic of non-enforcement should not fall into the trap of methodological nationalism as neither state nor non-state law exist in isolation from transnational influences. In the case of state law, these influences range from the legacies of the colonial state as author of a significant proportion of the laws still in place in Bangladesh today to various legal reform projects advanced by international financial institutions and other donor agencies. Yet also non-state law has been significantly shaped by transnational influences, including by transnational religious movements (Riaz 2005) and liberal-minded donor organisations that have identified courts as possible sites for the support of human rights (Berger 2016). In addition, also more subtle entanglements between ‘the national’ and ‘the international’ come into effect as the state is not the sole author of important documents people can use to alter the outcomes of non-state justice institutions. International organisations also become part of the logic of non-enforcement as the artefacts they disseminate in the course of their project interventions start assuming social lives of their own in rural Bangladesh.

Currently, one of the most substantial of such interventions is a project aiming to ‘activate’ village courts (briefly described in section 2), which, as institutions, have existed in the law books of the country but so far have failed to materialise in quotidian practices of conflict resolution. Funded largely by the European Union and implemented with technical assistance from the United Nations Development Program (UNDP) as well as four local NGOs, the project has targeted over 1,000 village communities across 27 districts in Bangladesh. In each of these village communities, the project has installed a beautifully decorated village courtroom, equipped with a judges’ panel, witness stand, and seating arrangement for the audience. Resembling the symbolic set-up of state courts very closely, the project has also engaged in the prolific distribution of bureaucratic paperwork. The administration of village court justice prescribes no less than 13 different forms. There is a form for the application of a village court case as well as a pre-printed letter summoning the accused parties and potential witnesses to the village courts. In addition, there is also a Compromise Sheet, which can pre-empt the constitution of a village court in case the conflicting parties come to a pre-mediated agreement. There are also forms for the transfer of village court cases to the respective state-backed civil and criminal courts, to file a case of contempt of court and the corresponding fine that ensues, and to document the final village court decree. Finally, the project provides a register for recording the appropriate implementation of village court verdicts.

While all these documents are prescribed by the state, the European Union and UNDP have also introduced 11 additional forms to document project activities. In short, the project operates through a seemingly endless trail of paperwork, which ensures that everybody somehow involved in a village court case is equipped with at least one if not more official documents. While none of these documents bears signs of state agencies or international organisations, most of them are placed within a cover sheet upon which both national and international authority is inscribed. On the front page of the cover sheet is the logo of the Ministry of Local Government, Rural Development and Cooperatives as well as a text box. Within the text box, the number of the form is given first (counting from one to 13), followed by the heading ‘Case Register’, and three subsequent dotted lines for the inscription of ‘Union’, ‘Upazilla’ (Sub-district), and ‘Zila’ (District). On the backside of the sheet, the logos of the European Union, UNDP, and the Ministry are imprinted above the ‘Activating the Village Courts in Bangladesh’ slogan.

These documents become part of the logic of non-enforcement as I have outlined it in Section 4. Throughout my fieldwork, two things stood out about the paperwork provided by the project: first, most of the documents were incomplete, they lacked crucial information, signatures, or case description necessary for the administration of village court justice as demanded by the project authorities. Second, this hardly mattered. Although not suitable for the creation of transparency, accountability, and oversight, most of my interlocutors agreed on the tremendous importance of the village court documents that were provided by the grassroots levels employees of the local NGOs tasked with the implementation of the project.

The fieldworkers equipped especially poor and marginalised people with documents that enabled them to access local elites they could have otherwise not accessed, or only accessed at much greater difficulty. This access, in turn, significantly enhanced their standing in processes of conflict resolution. Equipped with official documents, they could demand for a case to be heard and negotiated; and some of the Union Parishad Chairmen I talked to expressed their bewilderment about the seemingly trifling cases they now had to attend to. As argued above, the documents are required by the state but provided by international organisations that encase them in cover sheets bearing not only ministerial emblems but also the logos of international organisations. These logos, then, enter the symbolic universe of legal forms in rural Bangladesh. Not only state and non-state law but also ‘the international’ and ‘the domestic’ become deeply entangled in what I have conceptualised as the logic of non-enforcement.

VII Conclusion

Village courts are simultaneously located at two intersections crucial for the understanding of legal plurality in rural Bangladesh. On the one hand, they are formally located at the intersection between state and non-state legal systems, following closely the set-up and internal dynamics of shalish but being recognised by the state for the trial of minor civil and criminal cases. On the other hand, they are also located at the intersection between the international and the domestic. Being a seemingly local institution, they currently materialise only in rural Bangladesh as international donor organisations have found them to be suitable sites for the advancement of their own agendas. Yet, as shown in the preceding analysis, the artefacts deployed by these donor agencies become invariably part of established patterns for local conflict resolution, intimately entangling state and non-state law.

In this article, I have conceptualised these entanglements and their underlying dynamics as the logic of non-enforcement. According to this logic, people frequently file cases with the state courts, but not to get binding and enforceable verdicts but to alter the dynamics of non-state justice institutions. Importantly, the logic of non-enforcement thus accounts for the ways in which legal institutions shape social relations without, at the same time, actually contributing to the realisation of the substantive provisions inscribed in the law itself. Based on ethnographic research in rural Bangladesh, my conceptualisation of the logic of non-enforcement also aims to contribute to a larger research agenda on the myriad effects of law beyond the implementation of legal precepts. Rejecting the prominent intellectual shortcut that, if laws are not implemented, they also do not matter, this line of scholarship complicates our understanding of the ways in which state and non-state law interact, often in surprising ways.

Footnotes

Declaration of conflicting interests

The author declared no potential conflicts of interest with respect to the research, authorship and/or publication of this article.

Funding

The author received no financial support for the research, authorship and/or publication of this article.

Notes

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