A ‘good enough’ rule-of-law transfer and adaptation?: A case study of transnational rule-of-law promotion in East Timor

This dissertation is a study of transnational rule-of-law promotion in context. I investigate what happens when ‘global scripts’ such as the transnational rule-of-law standards are taken to a particular setting through a network of international and local actors. What kind of changes do they bring, how should we examine those changes, and what roles do internationals and locals play in bringing those changes – these are some of the questions that guide my research. Following the rule of law as a set of normative ideals and aspirations that are taken to particular contexts to bring social change, my research examines an understudied area of what actually happens in those settings. I unpack how transferred rule-of-law ideals and aspirations affect the local context, what roles do transferors and recipients of transnational rule-of-law aspirations play in influencing change; and how can international and local actors work together to facilitate desired changes.

Other scholars have also inquired about legal transfers, social change, and the role of internationals in the context of rule-of-law promotion initiatives. Those who have engaged with these questions, particularly on the rule-of-law transfers, provide a bleak picture. They inform us that rule-of-law transfers have mostly ‘failed’ because they did not bring substantial changes or have ended up ‘imposing’ solutions. In the policy sphere, international organisations promoting the rule of law monitor and evaluate the changes their activities bring in specific contexts. Their monitoring and evaluation exercises identify some changes: increase in number of courts, training of judicial officials, computerisation (to list a few). Such exercises point out details about their project outputs rather than informing us about what happens on the ground. Both these accounts present a fragmented understanding of the kinds of changes that are possible and the role of international and local stakeholders who are trying their best to bring a difference to a particular setting.

In contrast to these engagements, I examine the role of internationals and local stakeholders, and rule-of-law changes in context against the standard of what is necessary to assist a society to adopt and adapt to the newly transferred norms and standards. Considering insights from sociologists and sociology of law scholars, I argue why we must reframe what we understand as a ‘successful’ rule-of-law promotion and adaptation in the context of rule-of-law transfers. I argue that any evaluation of the ‘successes’ or ‘failures’ of rule-of-law transfers and adaptation must consider the experiences of those who are in the field transferring, adopting and adapting new normative standards, behaviours and institutional arrangements.

I pursue my arguments through a case study of rule-of-law promotion in East Timor. I advance three primary arguments.

First, the rule of law is a phenomenon that must be observed in conjunction with the social context. Since the rule of law underpins notions of legality, adherence to law, and reliance on legal institutions, any initiatives to promote the phenomenon need to factor in how these aspects can be strengthened in society. In addition, the sociological dimensions of the rule of law require us to observe and analyse the phenomenon beyond its legal aspects.

Second, transnational rule-of-law promotion initiatives aim at re-ordering how power is used and tackled in the public sphere. For the desired changes to occur nation-states, officials, and ordinary citizens must see arbitrary use of power in the public sphere as a problem and adhere to certain standards of how power ought to be used in the public sphere. State institutions and officials within them need to also align their actions to their prescribed professional roles. For a society that has not been socially ordered as above, time is essential for people, officials, and judicial actors to adopt and adapt to new norms and standards. I argue, the adaptation of transnational rule-of-law standards is fluid, and therefore, accounts of ‘successes’ or ‘failures’ of transnational engagements, especially in a post conflict setting should take this into account.

Third, successes and failures of initiatives to strengthen the rule of law must then consider the gradual shift in normative standards and attitudes. Consequently, we need to move away from observing ‘successes’ of the rule-of-law transfers as an all-or-nothing matter. Instead, I propose an alternative framework – ‘good enough’, for observing and evaluating transnational rule-of-law engagements and the incremental changes on the ground. I propose that the ‘good enough’ framework allows us to move beyond looking for the perfect rule-of-law transfers and adaptation (where the transferred laws, norms, and institutions are adopted with the same meanings and functions). Rather the good enough framework recentres our attention to the realistic policy interventions necessary for a society to progress towards the rule-of-law aspirations rather than away from them.

The data for the research was collected through five-months of fieldwork – from February to August 2018 – in East Timor. Semi-structured interviews, focus group discussions, field observations, and documentary analysis of policy documents were used for gathering data and triangulating findings. I give a ‘thick’ description from the field as to how transnational aspirations for strengthening the rule of law in particular settings were transferred, received and adapted in East Timor. Using the field data, I argue that those who are promoting and receiving the rule-of-law reforms at the first level are the people who are caught between the extremes: aspiring for the ‘ideal’ standards, but at the same time constrained by the realities of their immediate settings. By focusing on these actors who are in the field, who must work around the nuances and particularities of their contexts and make the lofty idealisms of the transnational rule-of-law aspirations a reality in the local setting – my research fulfils the ‘cartography of a terra incognita for social scientists’ (Halliday and Carruthers, 2009, p. 27). I illustrate how this ‘first-level’ of stakeholders navigate the uncomfortable in-between spaces, negotiating the best possible outcomes for attaining the adopted rule-of-law aspirations in the longer run. As a result, a case is made as to why any articulation of successes or failures of rule-of-law transfers and adaptation should consider the experiences of these actors and what makes it possible for them to carry out their roles in strengthening the rule of law in particular settings.

The dissertation also bridges the discussions on rule-of-law transfers and adaptation in the policy and academic spheres. It highlights the dissonance between ‘idealism’ and ‘reality’. By demonstrating how changes happen in the ‘real’ world, I argue that policymakers must consider the academic exchanges on legal transfers, adoption and adaptation, and the role of international actors in bringing changes. Demonstrating the challenges and social realities within which the internationals and local actors transfer, receive, adopt and adapt new norms, I argue why academic scholars must take into account the mundane life of rule-of-law promotion and reception in particular settings while evaluating the successes and failures of transnational rule-of-law promotion.