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5. Una herramienta para conocer la vida útil y los riesgos microbiológicos de los alimentos: Challenge Testmicrobiológicos de los alimentos: Challenge Test
The concept of the rule of law originated as a defence against totalitarianism and a path toward democracy, and is increasingly seen as critical for economic, political and social development. The underpinning theory is still subject to debate, particularly the extent to which the legal order could or should respond to the aspirations of the community and be
‘pro-poor’.43 Both the UN and World Bank are committed to rule of law activities at nation state level, such as strengthening the constitution and institutions of justice, governance, security and human rights.44
De Soto from his perspective on pro-poor property rights has attacked lawyers and legal culture for in-built conservatism, adherence to traditional processes, and sabotaging opportunities for poverty reduction:
‘their knee-jerk reaction to extralegal behaviour and to large-scale change is generally hostile’.45 The very concept of pro-poor law is in itself a challenge to legal culture and how lawyers are educated. Even the existence of a pro-poor constitution, in post-apartheid RSA, does not guarantee pro-poor judgments in its constitutional court.46 Much of the research on poverty and land law has been undertaken by other disciplines, hence the title of McAuslan’s book on the role of law in development Bringing the law back in.47
42 A Manji The politics of land reform in Africa (2006).
43 P Nonet & P Selznick Law and society in transition (1978). These authors identified three modes of legal order, of which responsive law was one, the others being repressive law (relying heavily on coercion to maintain order) and autonomous law (emphasising regularity and predictability).
44 United Nations UN approach to rule of law assistance (2008) 45 De Soto (n 38 above) 210.
46 T Roux ‘Pro-poor court, anti-poor outcomes’ (2004) South African Journal of Human Rights 511; J Dugard & T Roux ‘The record of the South African Constitutional Court in providing an institutional voice for the poor’ in R Gargarella et al (eds) Courts and social transformation in the new democracies (2006) 107; S Gloppen et al (eds) Democratization and the judiciary (2004).
47 P McAuslan Bringing the law back in (2003).
The national legal systems and cultures of sub-Saharan Africa reflect their colonial backgrounds. Different colonial powers imported their own systems, and some nation states have a legacy of two or more overlaid colonial legal orders: Cameroon, for example, had German, French and British colonial masters at different times. The recent constitution of Namibia (the former German South-West Africa) still draws from German approaches to property, even though Germany ceased being the colonial master in 1918, and South African law applies both Roman-Dutch and British approaches to property, creating much legal complexity.48
The high hopes of the law and development movement, which sought to involve law in the processes of modernisation during the early post-independence period, have now faded, for various reasons. Dependency theory exposed the structural nature of under-development, and the critical legal theory movement exposed the power relationships underlying law. A Weberian culture of patrimonialism was reflected in the emergence of post-colonial new elites, which are widely perceived as corrupt, and pro-poor in rhetoric but not reality. The formal legal system, the main focus of liberal legalism, only reached a small section of the population, and had little relevance to customary land tenure, while reform through negotiated and legally constituted processes could achieve little. Critiques of legal culture in developing countries have asserted:
Generations of South lawyering elites (which provide a common law South archetype of excellence in lawyering) acquire specialist legal knowledges through Anglo-American circuits of “higher” legal education. Versatile in dominant North common law discourse, they bring their formative, and formidable, knowledges of comparative precedent in the course of argumentation at home. They thus remain the carriers of contemporary metropolitan common law to South legislation and adjudication.49
The blind and hegemonic push for uniformity around a non-African standard simply increases resentments which have been simmering since colonial times. We are dealing with a people who have grown suspicious of the purveyors of “modernisation”, which in their minds translates into
“Westernisation”, a process not characterised in the past by too much respect for the African viewpoint.50
In the years since independence many African countries have engaged, usually through special commissions of inquiry, in review of their complex inherited land laws, and passed new laws, often with foreign assistance
48 SD Girvin ‘The architects of the mixed legal system’ in R Zimmermann & D Visser (eds) Southern cross (1996) 96; MJ Chanock The making of South African legal culture 1902-1936 (2001).
49 U Baxi ‘Global development and impoverishment’ in P Cane & M Tushnet Oxford handbook of legal studies (2003) 455.
50 RT Nhlapo in B Ajibola & D van Zyl (eds) The judiciary in Africa (1998) 88.
influencing the outcome.51 Among such law reforms have been: the military government of Nigeria nationalising land in its 1977 Land Use Decree; Uganda reforming its feudal mailo land tenure with its 1998 Land Act; Lesotho applying a British model to its land law in 1979; Botswana passing a Tribal Land Act in 1968; and Tanzania retreating from socialism with various new land laws in 1990-93. Perhaps the most comprehensive approach was in RSA, where many reforming land laws after 1994 dismantled apartheid and attempted a transformative approach, embedded in its new constitution.52
The challenges of land law reform, especially land redistribution in southern Africa, require no less than a transformation in legal thinking.
The concept of transformative constitutionalism appeared in post-1994 RSA, offering an approach to transformation through law-grounded processes.53 Zimbabwean academics have sought to justify land redistribution through a humwe doctrine of consent, sanctioning a
‘rejection of private property rights that were forcibly or immorally instituted under the shield of colonialism’, and drawing also upon the post-Mabo recognition that pre-existing indigenous land rights are not extinguished and can be revived.54
Land law reform also needs to be applied on the ground, recognising the complexities of local situations. Special courts and tribunals, hybrid forms of judicial administration, can be created alongside the main court system to deal with the intricacies and factual evidence involved in land disputes. Such ‘transplanted forms of bureaucracy’ are usually held close to where the disputes arise, and are expected to be quicker and cheaper than the courts, addressing factual rather than legal issues, with determinations made by professionals in land matters. They have potential to innovate, help protect the poor from arbitrary eviction, and allow the recognition of local communal rights, but have also been criticised for arbitrary decisions deviating from prior understandings of the law, even (in one author’s view) to the point of absurdity.55
51 A Manji ‘Land reform in the shadow of the state’ (2001) 22 Third World Quarterly 327;
RJC Young Post-colonialism (2003) 45.
52 McAuslan (n 46 above) 384 has an appendix listing basic information on statutory land laws in mainland Commonwealth Africa.
53 K Klare ‘Legal culture and transformative constitutionalism’ (1998) 14 South African Journal of Human Rights 146 – 188, discussed in AJ Van Der Walt Property in the margins (2009).
54 B Chigara Land reform policy (2004) 31.
55 RP Werbner ‘The quasi-judicial and the experience of the absurd’ in Werbner (ed) Land reform in the making (1982) 131. Examples of such tribunals include the Land Claims Court in South Africa, customary land courts in Botswana and Ghana, and land tribunals in Kenya, Uganda and Tanzania.