Non-enforcement as a tool of mediation in pluralistic societies

Abstract

Abstract This paper addresses the question of why states enforce certain legal rules but not others. While systematic non-enforcement of laws is considered undesirable in a positivist sense, this article perceives non-enforcement as a deliberate tool of mediation. Arguing that laws can regulate social behaviour beyond their literal application, non-enforcement can become a mechanism to mediate between contradicting legal orders that coexist in the same socio-legal space. A case study of non-enforcement of Sharia legal codes in northern Nigeria illustrates my argument. I seek to explain why certain Sharia provisions are carried out, while others remain systematically unenforced despite sophisticated enforcement mechanisms. Through expert interviews and an interpretative media analysis, I claim that this is the result of a compromise in order to mediate between Sharia Law on the one hand and secular Common Law on the other. Despite undesirable side effects, non-enforcement has so far guaranteed stability around the highly sensitive issue in Nigeria. My data furthermore suggests that we have to look beyond the literal enforcement of laws in order to understand their social meaning and how they influence behaviour.