If only it were as easy as fairy dust.
In Peter Pan, Tinker Bell is almost murdered by poison and a lack of belief. For those that don’t remember the book, Captain Hook and Smee conspire to poison Peter; however, Tink knowing of the plan drinks the poison first, sacrificing herself for Peter. Peter comes across her faint and frail body asking what can be done to save her. Tink says that if enough children believed in fairies, she could pull through. Peter demands that all of those dreaming of Neverland declare their belief in fairies. Only to the clapping and muffled murmurs of “I believe” does Tink rejoin the living, and a crisis was averted.
Not that different from Tinker Bell, the law needs to be believed in too. Law is a fiction that means nothing without a large portion of a governed population buying into its authority. How does a society turn legal fiction into reality? I think there are two fundamental parts: a culture that accepts the supremacy of law (usually through history and tradition) and the enforcement of the law. These two aspects, so commonly found in Western societies, continually reinforce themselves over each generation. There may be temporary breakdowns and short comings, but ultimately the reality of law persists.
Not that different from Tinker Bell, the law needs to be believed in too. Law is a fiction that means nothing without a large portion of a governed population buying into its authority. How does a society turn legal fiction into reality? I think there are two fundamental parts: a culture that accepts the supremacy of law (usually through history and tradition) and the enforcement of the law. These two aspects, so commonly found in Western societies, continually reinforce themselves over each generation. There may be temporary breakdowns and short comings, but ultimately the reality of law persists.
Kosovo lacks both of these building blocks. Historically, no conquering state has ever been able to prove themselves as useful to Kosovo. Most recently, the Ottomans and the Yugoslavs (both inceptions) treated Kosovo as a backwater and thus offered little institutional support. Therefore, Kosovars have never known a government they can believe in, trust, or rely on. Further, neither of Kosovo’s most recent colonial administrators encouraged a model rule of law regime, and thus there is no legal tradition to speak of. Within that vacuum, Kosovars found social structure in families and clans; while useful forms of social structure, neither inform the population to the precepts of common or civil law procedure. Now, the UN, and subsequently the European Rule of Law Mission to Kosovo (EULEX), have tried to plant the seeds of a modern, Western looking rule of law regime. These seeds are not taking hold.
A German judge working for EULEX summed up the West’s failures by drawing parallels between rule of law development and gardening. He instructs that the US and the EU think that they can take the seeds and bulbs that flourish in their local soils and then just plant them in a foreign environment without ever checking to see what the soil quality is, what the naturally occurring nutrients are, the amount of rain, or any other aspect that a good gardener would want to know before planting a crop. That absent legal tradition informs us on the quality of the soil, and without knowing what’s grown here in the past, you can’t expect to know what is going to take seed in the future.
In the same way that no one in Kosovo would expect an agave plant to grow in Pristina, locals don’t expect judicial judgments to take hold either. This is the second fundamental aspect missing from the Kosovar legal system: enforcement. One recent example was a story of a custody dispute shared with me by a friend who works with property and civil law in Kosovo. In trying to arrange joint custody after a divorce, a Kosovar judge decided that the child would see its father twice a week for two hours at a time. Decision made, judgment signed. Inevitably, this judgment was not taken seriously by the mother and shared custody wasn’t being put into effect. So, to enforce his judgment, the judge drove to the mother’s house, personally picked up the child, drove that child to the second parent, waited the requisite two hours, and then drove the child back. And that is how at least one decision was enforced in Kosovo.
I’ve heard other stories from both criminal and civil dockets of either creative—read: illegal—enforcement measures or just complete negligence in regards to enforcement. This lack of enforcement makes the court system a Kafkaesque-fiction at best or a Molière-like farce at worst. If lack luster judicial enforcements like these are the first inklings of a modern legal tradition in Kosovo, it is safe to assume that the public wont believe in the rule of law anytime soon.
A great error that I see Western dominated rule of law programs make time and time again is the adoption of a transplant mentality. The “Hey, it’s a good idea here. You should try it too.” This gives no thought to the local climate or history. It also harbors an underlying and misguided view that certain legal cultures are inevitable with the right support. This is not so.
Just because judicial precedent and a tripartite government with checks and balances is a flawed but good idea doesn’t mean that it will take seed by fiat in all environments. Western style legal systems work for their societies because there is an endless amount of energy, money, and social expectation at work. Yes, America and Kosovo threw off the yokes of their imperial masters, but the similarities end there. America had the luck of coming of age with the British legal system—both its tradition and its procedures of enforcement. As Americans, we never had to recreate the legal wheel, nor did we have to cultivate a distinct legal tradition. Perhaps the unsung irony of the American Revolution is that the British legal tradition still governs us today.
Unlike America, Kosovo doesn’t have the same hereditary luxury. Kosovo is starting from scratch. With no legal tradition to speak of, local and international authorities have literally copied and pasted laws and regulations from members of the international legal community: a little German property law next to some American criminal due process and topped off with a dollop of French civil procedure. These laws did not come around organically, nor do they necessarily reflect the society they are supposed to govern. Now, those from abroad hit their heads against the wall wondering why these reforms haven’t taken root. There is a general thought in rule of law development that if you give the skeleton of a legal structure, evolution will take its course and fill out the rest; but, without solid foundations that shell of a legal structure stands no chance.
None of this is to say that Kosovo is predisposed to anything but success in regards to the rule of law, but it is going to take time. The Kosovars I have met are intelligent and driven, but this level of systemic change is larger than these passionate reformers. The concern becomes that these reforms could take too long to create legitimacy. There is only a short window that the court can operate in such a disheveled manner. The more the courts show themselves to be inept, the less people will believe in them. This could easily create a cycle of cynicism that would eat up any legitimacy the courts have tried to develop. In that case, kiss the development of a legal tradition goodbye. So, while these changes may take a generation to take root, it’s not clear that the population at large has the patience for such a protracted grow season.
And this is where Kosovo stands. They have the pageantry of a legal system, but still lack the tradition and enforcement to make it viable. As these two facets reinforce each other, without an enforceable judgment there is no chance for Kosovar society to ever accept the authority of the rule of law. And I’m pretty sure it isn’t enough for the international community to yell “I believe!” to resurrect it either. After all, this isn’t a land of make believe.
A German judge working for EULEX summed up the West’s failures by drawing parallels between rule of law development and gardening. He instructs that the US and the EU think that they can take the seeds and bulbs that flourish in their local soils and then just plant them in a foreign environment without ever checking to see what the soil quality is, what the naturally occurring nutrients are, the amount of rain, or any other aspect that a good gardener would want to know before planting a crop. That absent legal tradition informs us on the quality of the soil, and without knowing what’s grown here in the past, you can’t expect to know what is going to take seed in the future.
In the same way that no one in Kosovo would expect an agave plant to grow in Pristina, locals don’t expect judicial judgments to take hold either. This is the second fundamental aspect missing from the Kosovar legal system: enforcement. One recent example was a story of a custody dispute shared with me by a friend who works with property and civil law in Kosovo. In trying to arrange joint custody after a divorce, a Kosovar judge decided that the child would see its father twice a week for two hours at a time. Decision made, judgment signed. Inevitably, this judgment was not taken seriously by the mother and shared custody wasn’t being put into effect. So, to enforce his judgment, the judge drove to the mother’s house, personally picked up the child, drove that child to the second parent, waited the requisite two hours, and then drove the child back. And that is how at least one decision was enforced in Kosovo.
I’ve heard other stories from both criminal and civil dockets of either creative—read: illegal—enforcement measures or just complete negligence in regards to enforcement. This lack of enforcement makes the court system a Kafkaesque-fiction at best or a Molière-like farce at worst. If lack luster judicial enforcements like these are the first inklings of a modern legal tradition in Kosovo, it is safe to assume that the public wont believe in the rule of law anytime soon.
A great error that I see Western dominated rule of law programs make time and time again is the adoption of a transplant mentality. The “Hey, it’s a good idea here. You should try it too.” This gives no thought to the local climate or history. It also harbors an underlying and misguided view that certain legal cultures are inevitable with the right support. This is not so.
Just because judicial precedent and a tripartite government with checks and balances is a flawed but good idea doesn’t mean that it will take seed by fiat in all environments. Western style legal systems work for their societies because there is an endless amount of energy, money, and social expectation at work. Yes, America and Kosovo threw off the yokes of their imperial masters, but the similarities end there. America had the luck of coming of age with the British legal system—both its tradition and its procedures of enforcement. As Americans, we never had to recreate the legal wheel, nor did we have to cultivate a distinct legal tradition. Perhaps the unsung irony of the American Revolution is that the British legal tradition still governs us today.
Unlike America, Kosovo doesn’t have the same hereditary luxury. Kosovo is starting from scratch. With no legal tradition to speak of, local and international authorities have literally copied and pasted laws and regulations from members of the international legal community: a little German property law next to some American criminal due process and topped off with a dollop of French civil procedure. These laws did not come around organically, nor do they necessarily reflect the society they are supposed to govern. Now, those from abroad hit their heads against the wall wondering why these reforms haven’t taken root. There is a general thought in rule of law development that if you give the skeleton of a legal structure, evolution will take its course and fill out the rest; but, without solid foundations that shell of a legal structure stands no chance.
None of this is to say that Kosovo is predisposed to anything but success in regards to the rule of law, but it is going to take time. The Kosovars I have met are intelligent and driven, but this level of systemic change is larger than these passionate reformers. The concern becomes that these reforms could take too long to create legitimacy. There is only a short window that the court can operate in such a disheveled manner. The more the courts show themselves to be inept, the less people will believe in them. This could easily create a cycle of cynicism that would eat up any legitimacy the courts have tried to develop. In that case, kiss the development of a legal tradition goodbye. So, while these changes may take a generation to take root, it’s not clear that the population at large has the patience for such a protracted grow season.
And this is where Kosovo stands. They have the pageantry of a legal system, but still lack the tradition and enforcement to make it viable. As these two facets reinforce each other, without an enforceable judgment there is no chance for Kosovar society to ever accept the authority of the rule of law. And I’m pretty sure it isn’t enough for the international community to yell “I believe!” to resurrect it either. After all, this isn’t a land of make believe.
