03 March 2012 Written by  Dagnachew Asrat and Sileshi Zeyohannes

Democracy and Constitutionalism

Democratic theory is based on a notion of human dignity; dignity taking the central and highest value worthy of respect. And adults ought to be endowed with a large degree of political autonomy – a status principally attainable by being able to share in the governance of the state they belong to. Because direct rule is not feasible, people can engage themselves in self-government only by delegating authority to freely chosen representatives. Thus, what justice – Hugo L. Black expressed – is a critical tenet of democratic theory is very much true:

“[n]o right is more precious in a free country than that of having a voice in the election of those who make the laws under which [the]…must live.”

Constitutionalism enshrines respect for human worth and dignity as its central principle, too. To protect that value, citizens must have a right to political participation, and their government must be hedged in by substantive limits on what it can do, even when perfectly mirroring the popular will. What constitutionalism insists on is having limited government. Predictability of governmental actions is also a characteristic feature of its typology. Its opposite is capriciousness or unpredictability – the hall-mark of tyranny. Hence, the 1st paragraph above postulates democracy as majoritarian politics, whereas the 2nd paragraph relates to counter-majoritarianism. The one pertinent question that has to be dealt with is whether the marriage between them is oxymoron?


Democratic Theory

The social and economic conditions supporting a viable representative democracy are complex. The following institutional conditions need obtain: a) popular election of representatives; by universal adult suffrage in districts of approximately equal population for limited terms, to institutions that allow those representatives to govern; b) free entry of citizens to candidacy for electoral office; and c)freedom of political communication and association. These, of course, require a plethora of ancillary rights. All of them create a nearly open market to political ideas to allow the people to form groups (parties) to express common interests, and to choose candidates.

It is this process that makes governmental action morally binding -  i.e. the people’s freely choosing representatives, those representatives’ debating and enacting policy and later standing for reelection, and administrators’ enforcing that policy. Democracy, therefore, tends to embrace both positivism and moral relativism. “The claim (representative democracy) becomes persuasive not in terms of what the people know, but in terms of who they are. They are the subjects of the law, and if the law is to bind them as free men and women, they must also be its makers.”

Here, reliance on Aristotlian simple claim is clearly viable i.e. that the people’s collective wisdom will exceed that of any simple person or small group. Few democratic theorists assume citizens possess equal capacity to understand the options or, as a whole, will always understand the issues. A coherent theory of reprehensive democracy must, however, posit that most sane adults can usually cope with political problems to the extent of being able to recognize their own self-interest join with others who share those interests, and choose among candidate. There is a good deal of faith at work, here, as well.

The chief democratic theorists posit against tyranny is that the people will not tyrannize themselves. As Jefferson asserted, it is the “mass of citizens” who are the safest depository of their own rights.

Thus, democratic theory stems from popular participation not only for its positive effect of expressing individual autonomy, but also for its negative effect of deterring governmental incursions into individual rights.

Because voters need to be informed to protect their interests, democrats advocate freedom of communication, as the U.S. Supreme Court reiterated.

the basic right of free expression is one of the principal human rights … For a free, democratic order it is a constituent element, for it is free speech that permits continuous intellectual discussion, the battle of opinions [sic]  that is its vital element… In a certain sense, it is the basis of any freedom… the matrix, the indispensable condition of nearly every other form of freedom.”

Yet, communication and voting are not sufficient for forming and expressing “the will of the people.” Democratic theory also demands a right to act in concert with others. Although the U.S. Constitutional text does not specifically protect a general right of association, the Supreme Court has held it “beyond debate that “the freedom to engage in association for the advancement of belief and ideas is an inseparable aspect of the liberty assured by the Due Process Clause.”

FDRE Constitution explicitly states that “[e]veryone has the right to freedom of expression without any interference…” In respect of freedom of association, Ethiopia’s constitution declares that “[e]very person has the right to freedom of association for any cause or purpose. ..”

The constitutional texts of Canada, India, Italy, and Japan contain similar provisions specifically protecting association alone with speech and peaceful assembly. And these countries all have well developed bodies of case law interpreting this provision to protect the specific rights involved.

Many theorists find an effective second check in the way democratic politics operates in a large, diverse nation. They contend that most people have small concern for most political issues. This low level of involvement allows coalitions of minorities to form temporary alliances, trading support among themselves on different issues. These theorists claim that political cleavages are not often cumulative. Hence an interest group is not likely to be continually allied with one set of group against another in permanent coalition.

Democratic theorists do not assert that these checks always protect liberty or even prevent public officials from acting independently to create public policy mounting slowly to tyranny. Rather, they argue that, overall, such cheeks push public officials to mediate among interests, broker, not adjudicate public officials to mediate among interests, to broker, or involve in-winner-take-all struggles. In sum, officials will be wary of oppressing any group; for such group may become part of tomorrow’s winning coalition. At a deeper level, democracy may cause people to accept and respect for competing interests not only because it is lawful but more importantly, as it itself [is] a form of accepted norm of doing things in politics.

Other proponents perceive Rousseauian as limitation; i.e. the popular will its representatives reflect, will generally be overwhelming. A valid law cannot simply reflect prejudices against minorities by imposing burdens only on them or principally on them. Such a limiting principle flows from the premise that the people as a whole are sovereign and majority rule is no more than a decision- making arrangement. This principle raises interesting questions about how to determine when a law makes distinctions and discriminations; and who shall make such determinations – the people, their elected representatives or non elected officials? An inquiry into any or all of this or these questions will lead us to the appreciation of the nation of constitutionalism.


Constitutionalism

Despite some basic agreements, the two theories – i.e. democracy and constitutionalism differ significantly. Constitutionalists tend to be more pessimistic about human nature, fearing that people are sufficiently clever to oppress without hurting themselves. Constitutional theorists do not deny the importance of institutional checks but see those as insufficient. They are constantly concerned with the human propensity to act selfishly and abuse power. Instead of taking the [presumed/pre-supposed] element of human innate behavior as yardstick in the determination of the qualities of democracy, it is much better to characterize democracy as a system in a large array of political culture, as modeled by the developers at the beginning of this Chapter. Constitutionalism, too, is a political system. If it presupposes the existence of some sort of constitution at all, then it must be in the sense where constitution is taken as a political institution. In either of its aspects, the concept of constitutionalism must first be dealt with before one does that to the constitution.

To delineate constitutionalism, one has to recognize that it has two connotations, closely connected, though. In one of its senses it indicates the striving of codification of the organization of state and power. On the other hand, constitutionalism may refer equally as well to the ideals, particularly political ideals regarding the organization of the state. The first sense inclines more to the organization of the state and functions by legal means, which is the essence of constitution. The second pertains to Political Science; one of its achievements or end products is democracy, which is majoritarianism.

Democracy is taken as essentially referring to being governed by duly elected representatives, of which the group which won the majority becomes the ruling party, and wherein decisions are normally made by majority vote. Does Rule by Majority guarantee the security and wellbeing of minorities and that of the individual? is the question that democracy and theories of democracy have not yet fully answered. The whole question seems to revolve around putting-up of restraint on governmental actions. The restraints may aim at protecting the individual’s or group rights and freedoms against governmental interference. This is the substantive and actually the substantial aspect of constitutionalism. In contradistinction to this, the formal constraints pertain to the organizational aspects of constitutionalism.

Constitutionalism, therefore, pertains to two kinds of relationships. The relationship between government and nationals/citizens, residents/ is the first category – the substantive. The second (the formal) refers to the appraisal of one branch of government vis-à-vis the other; and to their inter-relationship. It is these two aspects of constitutionalism which are the quit-essentials of a constitution, be that written, rigid, flexible, etc…

Constitutionalism and democratic theory raise questions about the concept of a constitution and the relationship of any particular constitution to those theories


The Concept of “Constitution”

To constitute means to make up, order, or form. Thus a nation’s constitution should pattern a political system. Some texts implicitly proclaim themselves to be supreme law and many do so explicitly. Still, a document’s bearing the title, a constitution and declaring its own control over all other political acts may not mean very much. We need to distinguish between the authorities a text asserts.

Constitutional texts may reflect spectra of qualities. At one extreme there have been a number of sham constitutions. At the other end there are those whose provisions are fully operative; but no constitutional text operates with complete authority. Its description of processes may be misleading. For example, the British North America Act of 1867, which served for more than a century as Canada’s principal constitutional document, asserted that the British Queen, not a Canadian cabinet and Prime Minister responsible to Canadian parliament, in turn responsible to a Canadian electorate, governed. Seemingly conscientious officials may ignore or skew express commands, and prohibitions; U.S. presidents and legislators have never taken seriously their document’s requirement that “a regular statement and account of the receipts and Expenditures of all public money shall be published from time.” So, too, for almost a hundred years, legislators, presidents, judges, and the mass of voters pretended that states were fulfilling their obligation under the fourteenth amendment to accord equal protection of the laws to blacks and women.

The prevalence of deviations from the text indicates the complex nature of a state (of conditions) the society thereof; the allocation and the management of same. Thus, when we speak of authoritative constitutions, we are talking about those that are only reasonably authoritative.

A constitution as sham/cosmetic or real, has a principal function. A sham constitutional text is there, may be to deceive. Yet, even reasonably authoritative texts may have to play a cosmetic role, allowing a nation to hide its failures behind ideals. But, in so far as a text is authoritative, it renews nationals/citizens/ as better selves.

A Constitution as a Charter for Governments: At minimum, an authoritative constitutional text would more often sketch the fundamental modes of legitimate governmental operations. Who its officials are, how they are chosen, what their terms of office are, how authority is divided among them, what processes they must follow, and what rights, if any, are reserved to citizens. Such a text need not proclaim any substantive values, beyond obedience to itself; if it does proclaim values, they might be those of Nazism or Stalinism – anathema to constitutional democracy.

A constitution as a guardian of fundamental rights: If a text is authoritative, for it embodies democratic theory, it must protect rights to political participation; and if it is authoritative and embodies constitutionalism, it must protect substantive rights by limiting the power of those even freely chosen representatives.

The constitution as covenant, symbol, and aspiration: In so far as a constitution is a covenant by which a group of people agree to (re) transform themselves from mere state into a nation, it may function for the founding generation like a marriage consummated through the pledging partners; consenting to remain a nation – for better or worse, through prosperity and poverty, in peace and war.

If that is not so, say, for later generations, a constitution may operate more as an arranged marriage in which consent is passive, for the degree of choice had been limited. Even where cancellation of a contract is a recognized right, exit from a membership of such an association is unlikely to offer viable alternative. Revolution becomes a legal right only if it succeeds and transforms revolutionaries into founders. Otherwise, a system usually endures only by bringing into and then binding many groups into its forms.

The myth that peoples’ forming themselves into a nation presents a problem not unlike that between chicken and egg. To agree in their collective name to a political covenant, individuals must have already had some meaningful corporate identity as are “a” people. Thus the notion of constitution as covenant should, therefore, be one which formalizes or solidifies rather than invents an entity anew. Such Constitutions should rather solemnize a previous alliance into a more perfect union.

The engine behind a formative constitution, like the one we tried to show varies from country to country and time to time. One can plausibly argue that if the French have been under monarchies, military dictatorship, and assorted republics, then they must have been under different people at different times. In like manner, Germans have been under the Kaiser, the Weimar Republic, the Third Reich, as well as West and East German states and finally as a reunited Federal Republic of Germany. In polyglotted societies such as Canada, India, and the United States, there may be no other basis for union as nation particularly where there are of so many disparate groups. A constitution may, thus function as a uniting force the only principle of order, for there may be no (other) shared moral or social vision that might bind together a nation. It is difficult to imagine what has united the supposedly united states more than the political ideas of the declaration of Independence and the text of 1787 Constitution.

Reverence for the constitution may transform itself into a holy symbol of the people themselves. The created “Tabot” may become (the people’s) own mythical creator. This symbolism may help show how, sometimes, constitutional text transforms itself into a semi-sacred covenant, serving the unifying function of a civil relation. In America, that is exactly what happened to the verbal inspiration which gave the constitution of unquestionable authority.

In a related fashion, a constitution may serve as a binding statement of people’s aspirations for themselves as a nation. A text may silhouette the sort of community its member would like to become: not only their governmental structures, procedures, and basic rights, but also their goals, ideals, and the moral standards by which they want others, including their own posterity. In short, a constitutional text may guide as well as express hopes for peoples themselves as a society. The ideals, the words enshrined in their constitutions, the processes they describe and the actions they legitimize must either help to change the citizenry or, at least, reflect their current values.

What does “the constitution” include?

Almost every nation now has a document labeled a constitution. But to have a constitution, a nation need not have a social, economic and political text. Nor does the existence of a constitutional document mean that any particular nation’s constitution is coextensive with that socio-economic-political reality. What a constitution includes is a problem, not a datum.

The most obvious candidate is the whole text and nothing but the text. The late Justice Hugo Black and former Attorney General Edwin Meese III were among the most notable Americans to take that position. Such people stressed the “writtenness” of the U.S. Constitution qualified their textualism with a commitment to “original intent” or “understanding” - additions to the text.

Anything less than the full text would sound a less attractive option, but every constitutional document drawn up in a free society is likely to reflect a bundle of compromises, necessary to obtain approval from the drafters and ratifiers, that, perhaps, are not mutually compatible. As one solution, the German Constitutional Court has proposed reconciliation through structural interpretation:

An individual constitutional provision cannot be considered as an isolated clause and interpreted alone. A constitution has an inner unity, and the meaning of any one part is liked to that of other provisions. Taken as a unit, a constitution reflects certain overarching principles and fundamental decisions to which individual provisions are subordinate.

On another occasion, the constitutional court divided 4-4 on the validity of an amendment; the Supreme Court in India has several times voided constitutional amendments; and the California Supreme Court has once done so. Moreover, many U.S. Presidents, legislators, judges, and commentators have tried to exclude portions of their constitutional text from the canon. Many commentators who assert that the text’s principal function is to serve as a charter for government may undermine, as an empty rhetoric, the preamble’s statement of purposes, especially its dedication to the establishment of “Justice.”

A quest for original understanding or intent raises enormous mythological, theoretical, and practical problems. After a few years have gone by, interpreters can pursue originalism only through documents, which are fraught with all the hermeneutic problems of the text itself.

In the United States, the most robust would be the second paragraph of the Declaration of Independence and The Federalist. The Declaration justified the creation of a new nation and set out its founding principles:

We hold these truths to be self-evident, that all men are created equal; that they are endowed by their creator with certain unalienable rights that among these are life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of Government becomes destructive of these ends, it is the Rights of the people to alter or abolish it ….

The case for the Federalist, essays by John Jay, James Madison, and Alexander Hamilton urging ratification of the newly drafted constitutional text, would be that those who ratified that document accepted these views as authoritative and, therefore, they form part of the original understanding.

Some practices might become so settled as to be fused into the constitution. One would expect common-law systems, with their sensitivity to prescription, the doctrine that long and unchallenged usage confers legal title, would be hospitable to such a concept.

Most fundamentally, governmental practice often violates the basic text or its underlying principles. Does a long violation effect a constitutional change? If the constitution is devoid of normative content beyond obedience to specified procedures, the answer might well be yes. If, however, the constitution entails normative political theory, the issue becomes far more complex. The minimum standard he would use to test a practice’s legitimacy is congruence with both the document and tradition.

Interpretations trigger similar disputes. Although not every interpretation has a serious claim to be part of the canon, some interpretation mold into the larger constitution. The U.S. Supreme Court’s jurisprudence of judicial review provides the most striking example. As one of the courts opponents asked at the time, “Is it not extraordinary that the high power was in intended, it should where appear (in the text)?

Culture forms the second element in (a country’s) political chemistry. A constitutional text that requires that its officials support it can forge a moral bond. Much of the text may thus become part of the nation’s custom. Children may learn about it in school as the “proper” way of politics, and later on, as prescribing rules for a just society.

Constitutional Democracy

To enjoy reasonably effective, but still limited governance, many countries have adopted a mix of constitutionalism and democratic theory. Most so-called democratic systems, such as those of Australia, Austria, Canada, Germany, India, Italy, Japan, Spain and the United States, would be more accurately classified as constitutional democracies. Each of these polities have provided for a wide measure of political participation and simultaneously restricted the peoples’ over-governance by putting in place a variety of institutional means. Each of them, again, has distributed the power to the Legislative, Executive, .. and adjudicate among the three departments of government; everyone of them has a version of bi-cameralism and includes a Bill of Rights. In addition to these, Austria, Canada Germany, India, and the United States use federalism to further diffuse power. To splinter this diffused power of majorities, the United States employs stiffened elections for its legislature and indirectly elects its president. Each also authorizes politically independent judges to invalidate legislative and executive actions they believe violate “the constitution”.

To constrain power by means of a paper (word) – that is what a constitution really is – may sound foolish. Yet a political chemistry may turn sheets of paper into hoops of steel.

First, by prescribing institutional structures and deregulating power among different offices, a document can push officials to co-relate their interest with those of their office, and jealously guard those interests against punitive incursions by other officials. Further, by drawing vague divisions of authority, a document can make it likely that no set of officials can do much that is politically important not without arousing the jurisdictional imperative of other officials. Thus, a constitutional text can dispense/disperse power and protect liberty by putting an ambition against another and one power against another power.

In so far as a constitution is a collection of rules, establishing and regulating the system of government in a state, we can, as shown above, discern a formal and substantive aspect of a constitution.

These are the quit-essentials of modern constitutions, to which may, of recently, be added sustainable development and good governance with their entire corollary.

Herein above, we have defined constitution as a collection of rules. Here, the term “Rule” requires to be appreciated in terms of “Institution of Law” – institution, understood as an idea of an undertaking, which persistently exists in the social environment.

Hence “rule...” as an “Institution of Law”:

“.. are first precepts attaching definite consequences to definite factual situations. Secondly, there are principles, which are authoritative points of departure for legal reasoning in cases not covered by rules. Thirdly, there are conceptions, which are categories to which types or classes of transactions and situations can be referred and on the basis of which a set of rules, principles or standards becomes applicable. Fourthly, there are doctrines, which are the union of rules, principles and conception with regard to particular situations or types of cases in logically interdependent schemes so that reasoning may proceed on the basis of the basic scheme and its logical implications. Finally, there are standards prescribing the limits of permeable conducts, which are to be applied according to the circumstances of each case,”

For all practical reasons “rule” means standard, on the basis of which conduct, transaction (relations), situations are judged.  The realness of principles, concepts and doctrines is self-evident. What is not clear is the function of principles, concepts and doctrines. In short, their primary pursuits is the provision of rationale for rules or standards As the rule quality of every provision or even improvisers such are savings and excepting clauses, of any provision’s  law, let alone those of a constitution is a legal propositions of rule  (standard) which again is  self-evident.

If these propositions are found acceptable, the following exposition is an attempt to identify and explain some pertinent provisions of the 1995 FDRE constitution, behind which basic concepts principles and doctrines of modern constitution have been embodied.

First of all, we have said earlier that constitutionalism presupposes the existence of a higher law; not in a sense of “Grund norm” as Kelsey has envisaged, but constitution, written or unwritten-constitution, as “a collection of rules (standards), establish and regulate” the system of government in a state.


Rule of Law

The same have been designated as the substantive, the formal aspects of constitution. Of the formal/elements aspects of constitutive aspects, rule of law stand out as the most comprehensive and vital doctrine, principle and/or concept (hereinafter referred to as principle) of modern constitutions.

In the sense of Lon Fuller’s view of the “inner morality” of law, Rule of Law is not treated in its general sense of government under law, but in much more specific, comprehensive manner. According to Fuller yet

“… a comparison can be made between the internal morality of law and the natural law of carpentry; which the carpenter has to follow whether his aim is to build a hideout for thieves or an orphanage. The internal morality is to be distinguished from the external morality or the substantive aims or values that particular legal rules (standards) seek to promote. In other world (he] developed a conception of the Rule of Law, not by appealing to moral values drawn from the external morality, (which will, of course, vary with different legal rules and systems and from natural school perspective to other schools of jurisprudence), but by spelling out the values that underlie the concept of law itself.”

These values are characterized as the eight desiderata. These identified eight elements of law, recognized as necessary for a society aspiring to institute the Rule of law state as follows:-

  1. Laws must exist and those laws should be able to win obedience.
  2. Laws must be published.
  3. Laws must be prospective in nature so that the effect of the law may only take place after the law has been passed. Laws should be written with reasonable clarity to avoid unfair enforcement.
  4. Law must avoid contradictions. (intelligibility)
  5. Law must not command the impossible. ( Non self-contradictoriness)
  6. Law must be general.
  7. Laws must stay constant through time to allow the formalization of rules; however; law also must allow for timely revision when the underlying and political circumstances have changed.
  8. Official action should be consistent with the declared rule. (Congruency)

Standing alone, these eight elements may seem clear and understandable. But they are actually difficult to implement in the real world because governments are often compelled to prioritize one goal over another to resolve conflicts in a way that reflects society’s political choice. For example, making too many laws that are too detailed and specific may make the legal system too rigid. Inflexibility could cause the particular case. Additionally, instead of only applying prospectively, few laws, under limited circumstances are meant to apply retroactively, or to past conduct, because they were passed with the specific intent of correcting the conduct in question. Fuller recognized these conflicts and suggested that societies should prepare to balance the different objectives listed above.

Fuller’s Criteria is helpful in understanding rule of law, because it outlines the types of rules; of formal constraints that societies should develop in order to approach legal problems in a way that minimizes the abuse of the legal process and political power.

Rule of law, however, extends beyond mere regulation and is also shaped by the so-called institutional constraints on government implied in Fuller’s elements. One such institutional constraint is the existence of an independent judiciary; another is developing ways of promoting transparent governance. Informal constraints, such as local culture or traditions that may encourage citizens to organize their behavior around the law, also help constrain the government, prompt library and, therefore, define the rule of law.

Although still seemingly vague, rule of law may be most concretely defined as a theory of governance relying upon a series of law, which may be most concretely designed to encourage order and to prevent arbitrary and unreasonable exercise of government power. Multilateral institutions such as the World Bank and many policymakers throughout the world believe that the rule promotes economic development.

Modern economic development often comes with the introduction of a market economy; or, an economy based on private enterprise that does not rely on government-planned production. Max Weber, a famous sociologist and economist, has commented that the capitalistic order, upon which a market economy is based, is organized upon a rationale of law-bound state. Market economy brings buyers and sellers to the market for complex transaction from many, different parts of the world and on international scale.

Law is important to the market economy because it is the common basis on which parties can make agreements; it provides parties with confidence that disputes can be resolved efficiently and fairly. For this reason, the predictability and order that the rule of law promotes in substantive laws is viewed as the stabilizing force behind much economic developments. Rule of law helps set the rule of the game in critical areas such as investment, property, and contract.

Rule of law also serves as an important assurance of social rights and government accountability. Government restraint is especially critical for many transitioning economies where a previously planned economy is to be transformed into one that is market base. When the government is no longer the sole owner of land, capital, and labor, rule of law guarantees that the crucial elements of the economy will be free from arbitrary government will, adopt a hands-off approach to investment and production, allowing those participating to fully exercise their rights in relations to land, labor and capital.


Important Components of Rule of Law Reforms


I. Court Reforms

The efficiency of the courts is an important component in rule of law reforms as the existence of a judiciary is a fundamental aspect of downfall of law. for the newly independent states established after aspect of the downfall of the U.S.S.R., for example. Providing an efficient means of dispute resolution was crucial to meeting the demands of an increasingly privatized economy. At the most basic level, this simply meant that courts needed to be available to adjudicate disputes and enforce resolutions. For countries that are further along in the reform process, more complex structural reforms that strengthen court capacity “(i.e., training judges), independence, and transparency are needed.

To increase accountability and transparency, information technology systems may be installed to provide greater public access. To increase independence of the courts, the government can provide them with funding that will allow them to make there own financial and administrative decisions. Furthermore, for countries that have already established these structural reforms to encourage the adoption of the rule of law, court performance should be evaluated on a periodic basis.

Independence, accountability, efficiency, access, affordability, alternative dispute resolution mechanisms, and the quality of professionals are some of the characteristics that may provide an accurate measurement of the system’s success.

An example of success in this area of rule of law reform is the arbitress courts in Russia. Established to hear solely economic disputes, the arbitress courts underwent legislative reforms in 1991/1992, and 1995. Those reforms led to personnel and procedural safeguards, as well as the establishment of a higher-level appellate court. The immediate result of the reforms was an increase in the number of cases filed in the arbitress court system. Moreover, it was shown that despite Russia’s corruption and localism problems, the ability of the arbitress courts were able to resolve basic commercial disputes in a timely manner.


II. Developing Legal Rules and Legal Systems

Another important goal for rule of law reform is to develop the legal rules first and fore- most as Fuller stated, “law must exist”, before one begins to talk about rule of law. Economic reforms have generated a large number of new economic laws in developing countries. Between 1990 and1995, 45 developing and former socialist countries enacted new investment laws which were passed to liberalize the existing investment regime in their countries, by offering clear and broad legal protection for all types of investments.

To encourage additional country-specific development, in the early 1990s, the World Bank and the International Monetary Fund(IMF) began conditioning financial assistance on the implementation of the rule of law in recipient countries. These organizations provided aid to support initiatives in legislative drafting, legal information, public and legal education, and judicial reforms, including alternative dispute resolution.

The very term Rule of Law suggests that the law itself is the sovereign, or the ruler, in a society. As an idea, the rule of law stands for the proposition that no person or particular branch of government may rise above rules made by selected political officials. These laws reflect the morals of a society, and in a Western Democracy they are supposed to be pre-established, formalized, neutral, and objective. Everyone is subject to their dictates in the same way. The rule of law, therefore, is supposed to promote equality under the law. Thus, rule of law should be clearly differentiated from rule by law; i.e. the latter does not necessarily mean that the law is legitimate for it might not satisfy most of the desederatas.

The term legal transplantation describes the phenomena of importation of legal rules from other countries. Academic debates often center on the moral and practical implications and, by extension, the imposition as rule by law. Many Developing Countries, including Turkey, Ethiopia and Japan had incorporated a good number of laws of foreign essence since World War II, despite having a variety of legal traditions of their own. When developing countries such as these adapt laws from other countries, the rules borrowed  may not fit the underlying tradition, culture, and social context. Thus, in legal transplantation, countries should strive to adopt rather than simply adapt laws so as the newly introduced law fully complements and is reflective of their respective legal, economic, and social systems.


Last modified on Wednesday, 02 May 2012 13:05