An-Na\u27im, Abdullahi Ahmed

English

ValpoScholar

Third World Legal Studies
Volume 5 Article 3
1-3-1986
Law and Development: The Rule of Law in
Developing Countries
Abdullahi Ahmed An-Na'im
Follow this and additional works at: http://scholar.valpo.edu/twls
This Article is brought to you for free and open access by the Valparaiso University Law School at ValpoScholar. It has been accepted for inclusion in
Third World Legal Studies by an authorized administrator of ValpoScholar. For more information, please contact a ValpoScholar staff member at
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Recommended Citation
An-Na'im, Abdullahi Ahmed (1986) "Law and Development: The Rule of Law in Developing Countries," Third World Legal Studies:
Vol. 5, Article 3.
Available at: http://scholar.valpo.edu/twls/vol5/iss1/3
LAW AND DEVELOPMENT: THE RULE OF LAW
IN DEVELOPING COUNTRIES
Abdullahi Ahmed An-Na'im, Ph.D.*
It is interesting to note, at the outset, that Law and Development is
not taught at the University of Khartoum, the Sudan, where I teach
regularly. Such a course, moreover, is not even likely to be introduced in
the foreseeable future because we do not have the resources to deal
adequately with more basic legal subjects.
When I went to the University of California at Los Angeles as visiting
professor of law in 1985, I found that a course on Law and Development
used to be offered but had been discontinued for several years. Although
it was convenient to use the approved course title when I took up the
teaching of this subject, I needed to reflect my own interest and expertise;
so I added the subtitle: The Rule of Law in Developing Countries. In
this way, the title reflected the comparative constitutional law and human
rights issues that I wanted to cover in the course.
Theoretical Framework
However conceived, development involves collective decision-making
and implementation of development policies, including decisions on the
meaning and objectives of development and determination of national
priorities and tactics. To what extent is the law, and in particular consti-
tutional law, relevant to this process? How are fundamental rights safe-
guarded, if at all? Are these conceived as individual justiciable rights to
be leglly asserted against the state in the Anglo-American sense of rights?
Or is there an alternative indigenous conception of collective and individual
"rights" to be mediated through some other method?
The colonial experience of most developing countries has effectively
destroyed or at least severely disrupted preexisting traditional structures
and mechanisms for political organization and purported to replace them
* Associate Professor of Law, University of Khartoum; Visiting Professor of Law, College
of Law, University of Saskatchewan.
THIRD WORLD LEGAL STUDIES-1986
with models derived from the experience of the metropolitan colonial
powers. Consequently, all developing countries have evolved into national
states based on some form of constitutional structure, often expressed in
a written constitution. It is within this framework that the peoples of
these countries have sought to assert their right to self-determination and
attempted to exercise their sovereignty in defining and seeking to achieve
what they perceived to be their own development.
Given this state of affairs, it would seem logical to start by examining
the basic characteristics and underlying assumptions of the constitutional
model of a national state. In particular, the Anglo-American model of
constitutionalism, as modified and adapted for application in former
British and American colonies needs to be examined. How was this model
modified and adapted? Was it successful in achieving its purported ob-
jectives? What alternatives were available at independence? Is this concern
with constitutionalism and the rule of law meaningful to the masses of
the population of the particular countries and does it provide them with
effective access to policy-making and implementation processes that affect
their vital concerns and aspirations? If not, what needs to be done at this
level to achieve effective popular participation? It may even be queried
whether popular participation itself is relevant and desirable, and from
whose point of view?
However one approaches this area of concern, she or he would be
reacting to Western theories and experiences, both in formulating questions
and seeking to answer them. This is not necessarily a bad or wrong thing
to do, but the fact nevertheless needs to be recognized. For better and
for worse, the world has forever been changed by the rise of colonialism
and international capitalism and their liberal ideology, including their
theories of law and development. Even those countries such as Tanzania,
which sought to break the yoke of exploitation and dependence through
the adoption of indigenous models and the promotion of traditional
institutions, have continued to employ at least the symbolism of consti-
tutionalism and the rule of law as vehicles of national and international
legitimacy. The realities of the international economic order, moreover,
have forced these experimental regimes to compromise their ideals and
modify their policies in the interest of political stability and economic
success. The 1985 Constitution of the United Republic of Tanzania, for
example, has included a bill of rights for the first time since independence
and despite earlier official opposition to the very concept of a bill of
rights.
RULE OF LAW IN DEVELOPING COUNTRIES
Course Structure and Methodology
Within this framework, the course on the rule of law in developing
countries which I taught twice at the University of California, Los Angeles
(UCLA) School of Law in 1985-87 evolved around the following structure
and methodology. Following an introductory overview of the recent history
of the developing countries of Africa and Asia, the course explored some
of the initial questions of development: Which countries are described as
developing countries? What are the assumptions of this characterization?
What caused these countries to become underdeveloped in the first place?
Development of what or whom, by whom, and by which means to which
ends?
In recognition of the fact that the legal manifestation of these and
other questions involved the examination of questions of constitutionalism
and the rule of law, especially of the Anglo-American model, the course
proceeded to determine the basic characteristics and features of this model.
The writings of established authors such as S.A. de Smith, K.C. Wheare
and B.O. Nwabueze and statements by groups such as the International
Commission of Jurists on the meaning of constitutionalism and the rule
of law are discussed at this stage. This leads to discussion of specific
questions such as the role of the judiciary and the assumptions and
prerequisites on which this role is based in the Anglo-American tradition.
Another major feature of this model of constitutionalism is the liberal
ideals of fundamental individual rights and the mechanisms and procedures
for safeguarding them against encroachment by the state.
The theory and practice of constitutionalism and the rule of law in
developing countries is then examined against the theoretical model estab-
lished earlier. Independence constitutions are considered to see how they
adapted and adopted the Anglo-American constitutional model, including
their schemes for individual and minority rights. Post-independence crises
often lead to serious challenge to the independence constitution through
the incidence of secession, states of emergency and revolutionary change.
These constitutional crises are examined in light of some of the most
common responses, the assertion of extraordinary powers, especially pre-
ventive detention and suppression of political dissent. The role of the
judiciary under states of emergency and revolutionary situations is ex-
amined to determine how effective the judiciary has been in upholding
the constitutional scheme under these extreme circumstances.
This general part of the course concludes with a discussion of economic
and social development and its implications for constitutionalism. The
THIRD WORLD LEGAL STUDIES-1986
alleged dichotomy between civil and political rights, on the one hand, and
social, economic and cultural rights, on the other hand, is discussed at
this stage. Also considered is the question of priorities and trade-offs
often asserted by elites in their purported pursuit of objectives of political
stability, national security and economic development.
Choice of developing countries surveyed in the general part was limited
by the instructor's and students' knowledge of the Anglo-American model
and the relevant countries. China, former French colonies and Latin
American countries were therefore excluded from the general theoretical
discussion. Nevertheless, Argentina and Chile were covered in the next
stage of specific country-studies and some students selected Latin American
countries for their final papers.
The course then concludes with case-studies of five to seven developing
countries. Students are involved in the choice of countries, making class
presentations and leading the discussion of the relevant questions in
relation to the countries of their choice. These presentations and discus-
sions are usually done by students who have selected the particular
countries as subjects of their own term papers in lieu of writing an
examination.
Although the students are given the option of either writing a paper
or taking a final examination, the majority prefer to write a paper. I
have found that students tend to write high-quality papers because they
usually have a special, often personal, interest in the countries they choose
as subjects for their papers. The class presentation and discussion is very
helpful, even to those students who select for their papers countries not
covered in the case-studies.
Bibliography
Due to the lack of an appropriate textbook, I had to compile a volume
of articles and chapters from various books and add materials on the
countries selected for case-studies. The list of books used in readings for
the course include the following:
1. S.A. de Smith, The New Commonwealth and its Constitutions
(London: Stevens & Sons, 1964).
2. International Commission of Jurists, The Rule of Law and Human
Rights: Principles and Definitions (Geneva: ICJ, 1966).
3. B.O. Nwabueze, Constitutionalism in the Emergent States (Cran-
bury, NJ: Fairleigh Dickinson Univ. Pr., 1973).
4. Kenneth L. Karst & Keith S. Rosenn, Law and Development in
Latin America, A Case Book (Berkeley, CA: U. of Cal. Pr., 1975).
RULE OF LAW IN DEVELOPING COUNTRIES
5. B.O. Nwabueze, Judicialism in Commonwealth Africa (NY: St.
Martin's Pr., 1977).
6. International Commission of Jurists, States of Emergency: Their
Impact on Human Rights (Geneva, ICJ, 1983).
7. George W. Shepherd & Ved P. Nanda, Human Rights and Third
World Development (Westport, CT: Greenwood Pr., 1985).
8. M.L. Marasinghe & William E. Conklin, eds., Essays on Third
World Perspectives in Jurisprudence (Singapore, Malayan Law Journal
Pte., 1984).
9. Claude E. Welch & Ronald I. Meltzer, eds., Human Rights and
Development in Africa (Albany, NY: State U. N.Y. Pr., 1984).
10. Rhoda E. Howard, Human Rights in Commonwealth Africa (To-
towa, NJ: Rowman & Littlefield, 1986).
Articles from various law and political science journals were also used
in the course.
For cases to illustrate the role of the judiciary, or lack thereof,
extensive reference was made to Law Reports of the Commonwealth:
Constitutional and Administrative Law Reports, 1985 and 1986 (Abingdon,
Oxfordshire, Professional Books).
Introductory material and constitutional provisions for the countries
used in the case-studies were taken from Blaustein & Flanz, Constitutions
of the Countries of the World (Dobbs Ferry, N.Y., Oceana Publications,
1971- (looseleaf)). Background information on these countries was also
taken from the Foreign Area Studies services of the American University,
Department of the Army, Washington, D.C. [The publication is now:
Area Handbooks (Washington, D.C.: Library of Congress).]
Conclusions
I was impressed by the fact that the majority of students start the
course with a very strong bias in favor of the American model of
constitutionalism and the rule of law and end up being at least ambivalent,
if not opposed, to the imposition of this model on developing countries.
Although neither the instructor nor the students are clear on the appro-
priate model for these countries, the common conclusion has been that
the Anglo-American model, at least in its classic formulation, is not the
answer.
One conclusion, shared by the majority of students, was that the
appropriate model cannot possibly be determined in a classroom of an
American law school. The model for each particular country will have to
be negotiated by the permanent population with reference to cultural
norms and political realities prevailing in that country. Nevertheless, there
38 THIRD WORLD LEGAL STUDIES-1986
was the feeling that such models have to conform to certain minimum
universal standards which are to be established through comparative
analysis of state practice and relevant human rights documents.
I was also impressed by the feeling, expressed by some students, that
the law may not be as significant in the experience of developing countries
as they had thought or would like to think. The impression that I now
share with many of my students is that the law as such may have a very
limited role in the dynamic process of government and social change. The
significance of the law and efficacy of courts and lawyers may increase
at a subsequent stage, but is was felt that this does not seem to be the
present stage for developing countries.
I am therefore grateful to my students, and to the experience of taking
this course with them, for helping me to appreciate the complexity of the
field of law and development and the dominant role of cultural, political
and economic factors in government and development.


Law and Development: The Rule of Law in Developing Countries

Valparaiso University

Third World Legal StudiesVolume 5 Article 31-3-1986Law and Development: The Rule of Law inDeveloping CountriesAbdullahi Ahmed An-Na'imFollow this and additional works at: http://scholar.valpo.edu/twlsThis Article is brought to you for free and open access by the Valparaiso University Law School at ValpoScholar. It has been accepted for inclusion inThird World Legal Studies by an authorized administrator of ValpoScholar. For more information, please contact a ValpoScholar staff member atscholar@valpo.edu.Recommended CitationAn-Na'im, Abdullahi Ahmed (1986) "Law and Development: The Rule of Law in Developing Countries," Third World Legal Studies:Vol. 5, Article 3.Available at: http://scholar.valpo.edu/twls/vol5/iss1/3LAW AND DEVELOPMENT: THE RULE OF LAWIN DEVELOPING COUNTRIESAbdullahi Ahmed An-Na'im, Ph.D.*It is interesting to note, at the outset, that Law and Development isnot taught at the University of Khartoum, the Sudan, where I teachregularly. Such a course, moreover, is not even likely to be introduced inthe foreseeable future because we do not have the resources to dealadequately with more basic legal subjects.When I went to the University of California at Los Angeles as visitingprofessor of law in 1985, I found that a course on Law and Developmentused to be offered but had been discontinued for several years. Althoughit was convenient to use the approved course title when I took up theteaching of this subject, I needed to reflect my own interest and expertise;so I added the subtitle: The Rule of Law in Developing Countries. Inthis way, the title reflected the comparative constitutional law and humanrights issues that I wanted to cover in the course.Theoretical FrameworkHowever conceived, development involves collective decision-makingand implementation of development policies, including decisions on themeaning and objectives of development and determination of nationalpriorities and tactics. To what extent is the law, and in particular consti-tutional law, relevant to this process? How are fundamental rights safe-guarded, if at all? Are these conceived as individual justiciable rights tobe leglly asserted against the state in the Anglo-American sense of rights?Or is there an alternative indigenous conception of collective and individual"rights" to be mediated through some other method?The colonial experience of most developing countries has effectivelydestroyed or at least severely disrupted preexisting traditional structuresand mechanisms for political organization and purported to replace them* Associate Professor of Law, University of Khartoum; Visiting Professor of Law, Collegeof Law, University of Saskatchewan.THIRD WORLD LEGAL STUDIES-1986with models derived from the experience of the metropolitan colonialpowers. Consequently, all developing countries have evolved into nationalstates based on some form of constitutional structure, often expressed ina written constitution. It is within this framework that the peoples ofthese countries have sought to assert their right to self-determination andattempted to exercise their sovereignty in defining and seeking to achievewhat they perceived to be their own development.Given this state of affairs, it would seem logical to start by examiningthe basic characteristics and underlying assumptions of the constitutionalmodel of a national state. In particular, the Anglo-American model ofconstitutionalism, as modified and adapted for application in formerBritish and American colonies needs to be examined. How was this modelmodified and adapted? Was it successful in achieving its purported ob-jectives? What alternatives were available at independence? Is this concernwith constitutionalism and the rule of law meaningful to the masses ofthe population of the particular countries and does it provide them witheffective access to policy-making and implementation processes that affecttheir vital concerns and aspirations? If not, what needs to be done at thislevel to achieve effective popular participation? It may even be queriedwhether popular participation itself is relevant and desirable, and fromwhose point of view?However one approaches this area of concern, she or he would bereacting to Western theories and experiences, both in formulating questionsand seeking to answer them. This is not necessarily a bad or wrong thingto do, but the fact nevertheless needs to be recognized. For better andfor worse, the world has forever been changed by the rise of colonialismand international capitalism and their liberal ideology, including theirtheories of law and development. Even those countries such as Tanzania,which sought to break the yoke of exploitation and dependence throughthe adoption of indigenous models and the promotion of traditionalinstitutions, have continued to employ at least the symbolism of consti-tutionalism and the rule of law as vehicles of national and internationallegitimacy. The realities of the international economic order, moreover,have forced these experimental regimes to compromise their ideals andmodify their policies in the interest of political stability and economicsuccess. The 1985 Constitution of the United Republic of Tanzania, forexample, has included a bill of rights for the first time since independenceand despite earlier official opposition to the very concept of a bill ofrights.RULE OF LAW IN DEVELOPING COUNTRIESCourse Structure and MethodologyWithin this framework, the course on the rule of law in developingcountries which I taught twice at the University of California, Los Angeles(UCLA) School of Law in 1985-87 evolved around the following structureand methodology. Following an introductory overview of the recent historyof the developing countries of Africa and Asia, the course explored someof the initial questions of development: Which countries are described asdeveloping countries? What are the assumptions of this characterization?What caused these countries to become underdeveloped in the first place?Development of what or whom, by whom, and by which means to whichends?In recognition of the fact that the legal manifestation of these andother questions involved the examination of questions of constitutionalismand the rule of law, especially of the Anglo-American model, the courseproceeded to determine the basic characteristics and features of this model.The writings of established authors such as S.A. de Smith, K.C. Wheareand B.O. Nwabueze and statements by groups such as the InternationalCommission of Jurists on the meaning of constitutionalism and the ruleof law are discussed at this stage. This leads to discussion of specificquestions such as the role of the judiciary and the assumptions andprerequisites on which this role is based in the Anglo-American tradition.Another major feature of this model of constitutionalism is the liberalideals of fundamental individual rights and the mechanisms and proceduresfor safeguarding them against encroachment by the state.The theory and practice of constitutionalism and the rule of law indeveloping countries is then examined against the theoretical model estab-lished earlier. Independence constitutions are considered to see how theyadapted and adopted the Anglo-American constitutional model, includingtheir schemes for individual and minority rights. Post-independence crisesoften lead to serious challenge to the independence constitution throughthe incidence of secession, states of emergency and revolutionary change.These constitutional crises are examined in light of some of the mostcommon responses, the assertion of extraordinary powers, especially pre-ventive detention and suppression of political dissent. The role of thejudiciary under states of emergency and revolutionary situations is ex-amined to determine how effective the judiciary has been in upholdingthe constitutional scheme under these extreme circumstances.This general part of the course concludes with a discussion of economicand social development and its implications for constitutionalism. TheTHIRD WORLD LEGAL STUDIES-1986alleged dichotomy between civil and political rights, on the one hand, andsocial, economic and cultural rights, on the other hand, is discussed atthis stage. Also considered is the question of priorities and trade-offsoften asserted by elites in their purported pursuit of objectives of politicalstability, national security and economic development.Choice of developing countries surveyed in the general part was limitedby the instructor's and students' knowledge of the Anglo-American modeland the relevant countries. China, former French colonies and LatinAmerican countries were therefore excluded from the general theoreticaldiscussion. Nevertheless, Argentina and Chile were covered in the nextstage of specific country-studies and some students selected Latin Americancountries for their final papers.The course then concludes with case-studies of five to seven developingcountries. Students are involved in the choice of countries, making classpresentations and leading the discussion of the relevant questions inrelation to the countries of their choice. These presentations and discus-sions are usually done by students who have selected the particularcountries as subjects of their own term papers in lieu of writing anexamination.Although the students are given the option of either writing a paperor taking a final examination, the majority prefer to write a paper. Ihave found that students tend to write high-quality papers because theyusually have a special, often personal, interest in the countries they chooseas subjects for their papers. The class presentation and discussion is veryhelpful, even to those students who select for their papers countries notcovered in the case-studies.BibliographyDue to the lack of an appropriate textbook, I had to compile a volumeof articles and chapters from various books and add materials on thecountries selected for case-studies. The list of books used in readings forthe course include the following:1. S.A. de Smith, The New Commonwealth and its Constitutions(London: Stevens & Sons, 1964).2. International Commission of Jurists, The Rule of Law and HumanRights: Principles and Definitions (Geneva: ICJ, 1966).3. B.O. Nwabueze, Constitutionalism in the Emergent States (Cran-bury, NJ: Fairleigh Dickinson Univ. Pr., 1973).4. Kenneth L. Karst & Keith S. Rosenn, Law and Development inLatin America, A Case Book (Berkeley, CA: U. of Cal. Pr., 1975).RULE OF LAW IN DEVELOPING COUNTRIES5. B.O. Nwabueze, Judicialism in Commonwealth Africa (NY: St.Martin's Pr., 1977).6. International Commission of Jurists, States of Emergency: TheirImpact on Human Rights (Geneva, ICJ, 1983).7. George W. Shepherd & Ved P. Nanda, Human Rights and ThirdWorld Development (Westport, CT: Greenwood Pr., 1985).8. M.L. Marasinghe & William E. Conklin, eds., Essays on ThirdWorld Perspectives in Jurisprudence (Singapore, Malayan Law JournalPte., 1984).9. Claude E. Welch & Ronald I. Meltzer, eds., Human Rights andDevelopment in Africa (Albany, NY: State U. N.Y. Pr., 1984).10. Rhoda E. Howard, Human Rights in Commonwealth Africa (To-towa, NJ: Rowman & Littlefield, 1986).Articles from various law and political science journals were also usedin the course.For cases to illustrate the role of the judiciary, or lack thereof,extensive reference was made to Law Reports of the Commonwealth:Constitutional and Administrative Law Reports, 1985 and 1986 (Abingdon,Oxfordshire, Professional Books).Introductory material and constitutional provisions for the countriesused in the case-studies were taken from Blaustein & Flanz, Constitutionsof the Countries of the World (Dobbs Ferry, N.Y., Oceana Publications,1971- (looseleaf)). Background information on these countries was alsotaken from the Foreign Area Studies services of the American University,Department of the Army, Washington, D.C. [The publication is now:Area Handbooks (Washington, D.C.: Library of Congress).]ConclusionsI was impressed by the fact that the majority of students start thecourse with a very strong bias in favor of the American model ofconstitutionalism and the rule of law and end up being at least ambivalent,if not opposed, to the imposition of this model on developing countries.Although neither the instructor nor the students are clear on the appro-priate model for these countries, the common conclusion has been thatthe Anglo-American model, at least in its classic formulation, is not theanswer.One conclusion, shared by the majority of students, was that theappropriate model cannot possibly be determined in a classroom of anAmerican law school. The model for each particular country will have tobe negotiated by the permanent population with reference to culturalnorms and political realities prevailing in that country. Nevertheless, there38 THIRD WORLD LEGAL STUDIES-1986was the feeling that such models have to conform to certain minimumuniversal standards which are to be established through comparativeanalysis of state practice and relevant human rights documents.I was also impressed by the feeling, expressed by some students, thatthe law may not be as significant in the experience of developing countriesas they had thought or would like to think. The impression that I nowshare with many of my students is that the law as such may have a verylimited role in the dynamic process of government and social change. Thesignificance of the law and efficacy of courts and lawyers may increaseat a subsequent stage, but is was felt that this does not seem to be thepresent stage for developing countries.I am therefore grateful to my students, and to the experience of takingthis course with them, for helping me to appreciate the complexity of thefield of law and development and the dominant role of cultural, politicaland economic factors in government and development.

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