Expertise and adventure: In/formalization processes within EU rule of law capacity building programs
10.7340/anuac2239-625X-3090
This paper explores dynamics of formalization and informalization as interlinked social processes as a contribution to a critical understanding of rule of law capacity building programs in the framework of EU enlargement policy. It also challenges the assumption according to which informality would be a modality characteristic of countries of the “Global South”.
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Julie Trappe
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Expertise and adventure: In/formalization processes within EU rule of law capacity building programs
Text.Serial.Journal
https://ojs.unica.it/index.php/anuac
6
Forum: In/formalization
2017-12-31
2017-12-12
2017-12-31
2017-12-31
103-108
1
Julie Trappe
2017/12/31
10.7340/anuac2239-625X-3090
103
Independent scholar, Germany
2239-625X
2
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108
Expertise and adventure: In/formalization processes within EU rule of law capacity building programs
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                                           2017 ⎸ANUAC. VOL. 6, N° 2, DICEMBRE 2017: 103-108




                                                                                          FORUM




Brindisi to the Brindisians, graffiti in Brindisi, Italy. Photo by A. M. Pusceddu.


In/formalization
Edited by
Alan SMART, Josephine SMART, Filippo M. ZERILLI

Contributions of
Stamatis AMARIANAKIS, Lenka BRUNCLÍKOVÁ, Dolores KOENIG, B. Lynne MILGRAM, Sarah
MUIR, Antonio Maria PUSCEDDU, Alan SMART, Mechthild VON VACANO, Filippo M.
ZERILLI & Julie TRAPPE.




This work is licensed under the Creative Commons © FILIPPO M. ZERILLI, JULIE TRAPPE
Expertise and adventure: In/formalization processes within EU rule of law capacity building programs
2017 ⎸ANUAC. VOL. 6, N° 2, DICEMBRE 2017: 103-108.
ISSN: 2239-625X – DOI: 10.7340/anuac2239-625X-3090
IN/FORMALIZATION                                                                           103




Expertise and adventure
In/formalization processes within EU rule of law capacity building
programs

Filippo M. ZERILLI
University of Cagliari
Julie TRAPPE
Independent scholar




ABSTRACT: This paper explores dynamics of formalization and informalization as interlinked
social processes as a contribution to a critical understanding of rule of law capacity building
programs in the framework of EU enlargement policy. It also challenges the assumption
according to which informality would be a modality characteristic of countries of the “Global
South”.




   The concept of “informal economy” was forged in the framework of
development studies (Hart 1973). While it has been – and is often still –
uncritically employed to refer to a distinct, separate “sector” from the formal
economy, it is widely recognized today that informal practices permeate the
formal economy (Guha-Khasnobis, Kanbur, Ostrom 2007). A significant
contribution to a critical assessment of informality as a process linked to
formal practices came from the anthropological scrutiny of the legal/illegal
divide (e.g. Heyman 2013), a pervasive dichotomization recently complicated
by “extralegality”, a broader conceptual framework referring to diverse kind
of social processes in which collective and individual agents and institutions
interact, favour and/or contrast the production of both, formality and
informality in given social contexts (Smart, Zerilli 2014).
   Drawing on ideas and ethnographic material developed while doing
fieldwork within EU-funded legal cooperation projects – formerly in
Romania, and more recently in Kosovo – in this commentary we focus on dia-
lectics and tensions between formalization and informalization as inter-


                                           2017 ⎸ANUAC. VOL. 6, N° 2, DICEMBRE 2017: 103-108
104                                       ALAN SMART, JOSEPHINE SMART, FILIPPO M. ZERILLI (EDS)


linked social processes. We notably explore how dynamics of in/formalization
may serve to penetrate logics and mechanisms of programs and projects of
justice development, and particularly the diffusion of a certain legal culture
under the “rule of law” umbrella concept.
   While a number of authors have began to unpack the concept of rule of
law itself, seeing it as a historical, cultural artefact of and for governmental,
domination, and other exploitative practices captured by the idea of
“plunder” (Mattei, Nader 2008), we suggest to look at rule of law as a
commodity exchanged across the global legal marketplace. A market where
legal knowledge, expertise and consultancy are exported and imported,
offered, and in fact traded from countries of the “Global North” – aka the
donors, each in competition with each other – towards countries of the
“Global South” – the beneficiaries of international aid, struggling for
recognition – in the form of projects and programs of legal development. The
challenge we take, hence, is to bring current reflections on in/formality as
social process back to (legal) development studies, notably in the framework
of rule of law capacity building programs.
   Prishtina, capital and largest city of Kosovo, Europe’s youngest state.
Especially the summer from early in the morning till late evening a plethora
of bars and cafes around the city centre are plenty of people having their
macchiato, a very tasty coffee. Stereotypes about Kosovar Albanians insist on
their laziness. Their ability “to work” in cafes is often object of jokes and self-
ironies. Actually, the tremendous number of meetings held in cafes is an
important aspect of the projects’ social life and indeed an opportunity to
develop the projects in which “locals” and “internationals” cooperate. From
apparently innocent, ironic comments the tone of the conversation may
suddenly shift to serious observations. While discussing about the
organization of a seminar for a project, a young official of the Kosovo
Ministry of justice says: «Do they [the internationals] really think they can
just come here in their imperialistic way? They don’t respect my country. They
don’t know anything about us – and they want to tell us, how to make our
country better? No, you cannot bring rule of law like this!» (emphasis added).
   Since the end of the Cold War the world-hegemonic legal regime known as
the rule of law has increasingly driven privatization, marketization and
democratization programs, notably across the region interested by the EU
enlargement policy. According to the EU, «the rule of law is the backbone of
any modern constitutional democracy. It is one of the founding principles
stemming from the common constitutional traditions of all the Member


2017 ⎸ANUAC. VOL. 6, N° 2, DICEMBRE 2017: 103-108
IN/FORMALIZATION                                                                      105


States of the EU and, as such, one of the main values upon which the Union
is based. Respect for the rule of law is a precondition for EU membership»
(emphasis added)1. But how such precondition is achieved in actual practice,
if ever? And how respect for the rule of law as a precondition for EU
membership intersects with the “respect for my country” from the vantage
point of people belonging to beneficiary administrations?
   Among several other instruments, the EU adopted the Twinning, an
institutional building tool designed to develop cooperation between public
administrations of EU member states and of beneficiary (candidate or
potentially candidate) countries2. A considerable part of the EU budget for
enlargement is allocated for developing rule of law capacity building
programs across the Instrument for Pre-accession Assistance region (IPA) 3.
Drafting a Twinning call for proposal and the application itself are rigidly
formalized procedures. The competition among applicant countries,
however, is often influenced by extralegal practices, notably the unique
political and economic relationships certain member states have established
with IPA region countries. For a member state, “to win” a project means to
get financial resources and the opportunity to exercise a considerable power
influence on the ground, notably on the way the legal system of a beneficiary
country could be shaped, with significant economic consequences including
financial investments, joint ventures and commercial partnerships.
   The backbone of Twinning are usually two project leaders – one on behalf
of the EU member state leading the project, the other of the beneficiary
administration – a “Resident Twinning Adviser” (RTA) from a EU member
state and his local counterpart. The RTA is usually assisted by two salaried
“locals”: an assistant and a translator. The general aim of a Twinning is to
provide support for the transposition, implementation and enforcement of
the EU legislation (the EU acquis). Hundred pages of EU-law have to be
translated in another language and transposed into a national legal
framework, finding the best solution in structure and wording. In this
process of legal harmonization «law is not mathematics», as one RTA
observes. In order to transpose and translate a legal provision different

1. See Communication from the Commission to the European Parliament and the Council. A new
EU Framework to strengthen the Rule of Law, available at http://eur-lex.europa.eu/legal-
content/EN/TXT/?uri=CELEX:52014DC0158R(01) (accessed on 12/11/2017).
2. See htps://ec.europa.eu/neighbourhood-enlargement/tenders/twinning_en (accessed on
12/11/2017).
3. The IPA region includes Albania, Bosnia and Herzegovina, Croatia, the former Yugoslav
Republic of Macedonia, Kosovo, Montenegro, Serbia and Turkey.

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106                                       ALAN SMART, JOSEPHINE SMART, FILIPPO M. ZERILLI (EDS)


solutions are possible: «You cannot imagine the fights behind the façade!
Even within the EU, member state countries are fighting for their own
solution!», the same informant suggests. Interestingly, while disagreements
and controversies are relevant for understanding the actual implementation
of projects and their final outcome, the conflictual dimension does not
appear in official documents. Divergent opinions regarding how to face an
accident or to address a technical issue are average during unofficial
meetings, email exchanges, and cell phone conversations. Those informal
negotiations, however, perceived as ubiquitous and «quite exhausting!», in
the words of one expert, are carefully removed from the project reports. «It is
a long way to negotiate a report. A considerable amount of time is spent
writing reports in order to find the correct wording», the same expert adds.
Not infrequently, the project leaders in charge of the report are asked by EU
representatives to rewrite this or that section in order to make it consistent
with the original blueprint, its structure and wording such as “terms of
reference”, “assumptions”, “local ownership”, and so on. Similarly, under the
current EU audit regime, a work plan has to be implemented, benchmarks
have to be fulfilled, reports to be written, documents to be produced,
visibility guarantee, sustainability assured. As Riles (1998) has observed for
similar cases of negotiations of international agreements, matters of “form”
(i.e. aesthetics) appear more important than questions of “meaning”.
    Frequently glossed as “internationals”, experts working for Twinning
programs are experienced legal practitioners from EU member states.
Typically they are legal professionals, judges, prosecutors or academics with
a permanent position in their home country public administration. In our
experience they are often male close to retirement age, who feel flattered by
the opportunity to provide their job with an international dimension:
«working as an expert here [in Kosovo] is a chance to give an international
turn to my career», said one expert. In addition to several benefits,
internationals often show themselves enthusiastic and proud to turn their
knowledge and longstanding legal experience at the service of “developing
democracies”. Beyond such moral implications, many of them consider
working as a consultant in a country like Kosovo an adventurous, exotic
experience: «Isn’t our life more interesting and exciting here?», an expert
observes and immediately responds: «Oh, how boring it will be, when back in
my country office!». Obviously, money is another important factor: the
payment due for a mission abroad is usually very convenient comparing to
the salary the same expert would earn in the home country.


2017 ⎸ANUAC. VOL. 6, N° 2, DICEMBRE 2017: 103-108
IN/FORMALIZATION                                                                 107


   International experts cooperate with “locals”, namely officials and civil
servants of beneficiary public administrations, usually professionals with a
university background in law. While at least in principle experts from EU
member states and officials from candidate countries share the same
commitment (as prescribed by the Twinning manual itself), their actual
collaboration is challenged by their structurally unequal position in the
project in terms of roles, access to the project’s budget and capacity to
influence the project’s implementation. In fact, the Twinning does not allow
recruitment of local officials in the role of paid experts. Logics and rhetoric
of cooperation and learning by doing on which the Twinning is based
reserves to the locals (and only to some of them) the opportunity to take part
to seminars and “study visits”, the latter being educational initiatives
organized by representatives of the EU member state in their home country
and institutions. These are often also occasions for tourism and leisure, and
are perceived by locals as a source of revenue in addition to the modest
salary of the beneficiary public administration. As anticipated, major
discrepancies between locals and internationals concern their different
retribution and what they actually “get” from participating in a project. If we
look at the average budget of a Twinning project (typically from € 1.2 to 2.0
million) from an accounting perspective, roughly 80% of the total amount of
the expenses goes for the RTA salary, the short- and long-term experts’ fees.
In other words, as one RTA observes, «the money goes back to EU member
state representatives, instead of reaching the beneficiary country», as one
might expect.
   Interestingly, although these structural inequalities affect the actual
collaboration and the everyday project’s social life, there seems to be a non-
spoken mutual agreement between “locals” and “internationals”. Beyond the
effectiveness of the projects and irrespective of their actual outcomes all
actors involved share the idea that new projects have to be launched and
ongoing missions extended. This is cynically summarised by a local
informant as the common interest «to keep the sick person sick». A full
recovery of the patient would not justify any further aid intervention of
assistance reducing a number of opportunities (including salaries for local
staff, benefits for the local economy and infrastructure like hotels, taxis and
restaurants etc.) for many of the actors actively involved in making the rule
of law a commodity to be exchanged and traded across the legal marketplace,
at both local and global level.


                                    2017 ⎸ANUAC. VOL. 6, N° 2, DICEMBRE 2017: 103-108
108                                       ALAN SMART, JOSEPHINE SMART, FILIPPO M. ZERILLI (EDS)


   To conclude, ethnography among “internationals” and “locals” actively
involved in the legal marketplace also shows that assigning to countries of
the “Global North” the role of providers of legal rationality and formal
procedures for countries in the “Global South”, the latter being presumably
“affected” by informal, traditional, and often corrupt practices is a
misleading ideological assumption, albeit persistent in both popular and
academic discourse. An insider view of the legal marketplace rather suggests
that formal and informal practices and processes, their intricacies and
uneven configurations permeate the actual implementation of the
cooperation projects, beyond the local/international divide.


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Guha-Khasnobis, Basudeb, Ravi Kanbur, Elinor Ostrom, eds, 2007, Linking the formal
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Mattei, Ugo, Laura Nader, 2008, Plunder: When the rule of law is illegal, London, Rou-
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