The starting point of knowledge transfer between SFB 700 and the German Federal Foreign Office is the Federal Government’s policy towards fragile states that correlates with our research on governance in areas of limited statehood. In the first year of our collaboration, the focus lies with the topic of rule of law promotion.
Rule of law promotion describes a policy towards countries whose ruling is considered not to comply with more or less universally acknowledged rule of law standards. Such policy intends to improve the quality of legislation including its enforcement in the respective countries. For the most part, this is achieved by means of consultation of judges, lawyers, or legislative organs of the partner country, and by collaborating with local civil society institutions.
The topic of rule of law promotion discloses a twofold transfer perspective: just like our transfer project, rule of law promotion is based on the intent to create a transfer of knowledge between institutions and contexts. In both cases, questions arise around conditions and means of transfer.
The practice of rule of law promotion deploys differing concepts of constitutional legality and the rule of law. It is always the user of the term who defines it and this determines the objectives of rule of law promotion. Yet, this flexibility of the term allows for very different understandings of law to connect to the global debates on this issue. While the concept of the rule of law is basically internationally accepted, differences only appear in the details, for example when defining contents of human rights.
Research on the rule of law and on rule of law promotion focuses entirely on conceptual issues. It separates prescriptive concepts that are rich in content from more stability-oriented formal and also pluralistic concepts of law and the rule of law. In contrast, empirical research on the rule of law is rare. Cases of empirical research investigating the effectivity of transfer are mostly practical evaluations that aim at proving the effectiveness of certain measures and programs. There is neither any overall research that critically scrutinizes the doctrine on rule of law promotion promising regulation of order and justice, nor analyses of tangible strategic objectives that governments and other institutions pursue with this measure, or any research on the question of how and under what conditions the intended implementation is achieved. Yet, these are all essential factors determining the legitimacy and success of such policy.
Only recently, the German Foreign Office developed an index on rule of law promotion giving an overview on more than 600 measures taken by German organizations in this context, the majority of which is being supported in one way or the other by the German Government. This index is providing a panoramic view on various projects and measures in about 100 different countries. Moreover, it gives an indication as to the multifarious strategic objectives behind those measures. Such objectives may vary from peace keeping in situations of crisis, establishment of legal security and order, improvement of investment security for German companies, to initiating a normative dialogue on violations of human rights.
However, research findings as well as experiences made by various units of the German Government suggest that expectations on the success of rule of law promotion efforts should be kept low. Transfer and diffusion research has oftentimes proven implementations of externally designed programs not to have sustainable effects. In some local contexts, even Acts of Parliament are not perceived as a contribution to law but as an illegitimate dictate enforced by the state. And even if adoption does take place, the process itself may transform the original idea beyond recognition.
Only more custom-fit solutions that are sensitive to their respective contexts are expected to have more sustainable effects. Such solutions need to be based on a local understanding of law and legitimacy and thus, in turn, an analysis of these local perceptions must mark the beginning of any transfer efforts. This points to the plurality of courts and legal norms which constitutes the focus of research project B7 at the SFB. The strengthening of traditional legal systems, surely with reservation as to the protection of a minimum standard, can offer an alternative to the building of state structures that usually lack recognition. As SFB research has shown, government institutions are not necessarily required for the provision of governance performance.
The more both sides actively and in equal measures support any transfer process, the more effective the transfer becomes. Any transfer requires translation efforts that can only be successful if there is a continuous mutual process. And if the transfer project takes lessons developed by the transfer research serious, it can grow with its subject; as the same principles apply for the transfer of knowledge between research and political practice.
So far we have already observed transfer working best in a casual daily work setting at the Federal Foreign Office. Advanced conceptual ideas on the rule of law promotion are being consolidated in a “tool box” that intends to facilitate the work of the responsible departments by helping them differentiate varying local contexts by means of their respective degree of the rule of law. Accordingly, the index will then also provide matching suggestions for means of action which incorporate previous experiences by the Federal Government related to the respective context. The perspective of our research at the SFB will explicitly show in the inclusion of various non-governmental forms of governance.
The state-centered perspective of foreign-policy is only seemingly contrary to the governance approach. However, the foreign-policy perspective in this transfer project demands specific requirements that constantly need to be considered. If governance input from non-state actors can only be included within state and international structures, we will need to inquire into corresponding forms or other alternatives. One example for such alternatives would be recognition and addressing of traditional legal and governance forms in the constitution, another one German participation in the „Syria Recovery Trust Fund“ supporting local reconstruction projects even in opposition-controlled areas.
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About the author:
Dr. Matthias Koetter is research associate at the research project „Rule of Law and Governance in Areas of Limited Statehood“. As part of the transfer project T3, Koetter is also scholar in residence at the German Federal Foreign Office since March 1, 2014.
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