Formalising the informal through legal practice. The case of prostitution in authoritarian Tunisia

This article explores the dynamics of the law in action beyond the binary formal/informal, using Tunisian jurisprudence in the field of prostitution as a case study. It examines what the formal/informal distinction means in an authoritarian context where formal norms contrast significantly with informal norms: do judges apply the formal norm, or do they apply the informal one, and if so, how do they justify this? This article argues that judges instrumentalise a formal norm (i.e. the ban on prostitution) to impose an informal one (prohibiting extra-marital sex). As a result, the norm prohibiting extra-marital sex can no longer be situated in the formal/informal divide: it is not informal, as judges are State officials punishing the violation of this norm; and it is not formal either, since the norm does not form part of legislation and Tunisian judges, exercising their profession in a civil law country, do not make law.