This post is the fourth in a 2021 special series, which is a companion to the Gilbert + Tobin Centre of Public Law’s Global Public Law Virtual Book Series. The aim of the virtual book series is to invite leading scholars in public law around the globe to share ideas from a recent book with an Australian audience, and to engage with Australia-based commentators.

BY THEUNIS ROUX

Philipp Dann, Michael Riegner and Maxim Bönnemann’s edited collection of essays on The Global South and Comparative Constitutional Law constitutes a major advance in scholarly thinking on this topic. Theorising the Global South as an ‘epistemic, methodological and institutional sensibility’ (p. 3), Dann and his co-editors persuasively show in their introduction to the volume how a ‘Southern turn’ (p. 3) might reinforce the move already underway in the field towards greater epistemological self-awareness and ‘methodological pluralism’ (p. 3).

In addition to this contribution, the collection’s relevance to an Australian audience lies in the ‘double turn’ (p. 3) that its inverted perspective entails. Rather than thinking of the Global South as the perpetually underperforming constitutionalist other, the struggle to build just and sustainable models of constitutionalist governance in the Global South needs to be seen as inextricably bound up with similar struggles in the Global North. In Australia, this means using the Global South perspective as a lens through which to view our own ongoing attempt to establish a fully inclusive political community.

In this brief comment, I want to respond to just one of the book’s many provocations. The main question I want to raise is whether adopting a Global South perspective on comparative constitutional law (CCL) necessarily entails a rejection of liberal constitutionalism’s moral premises and institutional prescriptions. Or is it possible to be both a Global South scholar and a liberal constitutionalist at the same time?

The theoretical chapters in the book (chapters 2-5) all seem to reject this possibility out of hand. Written from a ‘critical’ CCL perspective, the premise for all of them is that the Southern turn necessarily means abandoning liberal constitutionalism’s prescriptions, for a variety of reasons:

  • the historical and conceptual association of liberal constitutionalism with the discredited modernist narrative of uniquely beneficial Euro-American progress – to which the only possible response of those thinking about constitutionalism from a Global South perspective – psychologically, morally, culturally, and practically – is rejection;
  • the lived experience of liberal constitutionalism in the non-Western world as an oppressive instrument of colonial domination and a key contributing factor to various post-colonial ills; and
  • the ongoing future inappropriateness, institutionally and philosophically, of liberal constitutionalism’s prescriptions for state-society relations in the non-Western world.

In the applied chapters in the volume, however, things are markedly different. The contributions by Sujit Choudhry, Heinz Klug and David Bilchitz all assume that liberal constitutionalism still has some value as a prescription for constitutional governance outside the Western core. Roberto Gargarella’s chapter, while critical of attempts to address social and economic inequalities through the liberal language of rights, ultimately recommends focusing on governmental structures in a way that could be understood as a preference for political over legal constitutionalism. Finally, the contributions by Weitseng Chan, Diego Werneck Arguelhes and Roberto Ortega examine the endurance of authoritarian constitutionalism in Asia and Latin America without, however, suggesting any alternative to liberal constitutionalism as a solution to this problem.

Why this disjuncture between theory and practice? Is it just the random result of the editors’ choice of authors or is it telling us something about the ongoing practical relevance of liberal models to addressing the problems of constitutional governance in the Global South?

Consider the Indian and South African experiences as two of the best-known examples of Global South constitutionalism – attempts, that is, to reimagine the legitimate basis for the exercise of public power after the end of a prolonged period of external or internal colonial rule. How we think about the relevance of liberal constitutionalism to the circumstances of the Global South very much depends, I suspect, on how we understand these two countries’ founding constitutional moments and what has happened subsequently.

As to the first issue, my view is that both the Indian and the South African founding moments are best described as critical engagements with liberal constitutionalism rather than the wholesale rejection of that approach to governance.

As told by Granville Austin and more recently by Gautam Bhatia, the Indian founding moment was characterised by a prolonged meditation on the appropriateness of liberal constitutionalism to the Indian experience and the sort of society that the framers wanted to establish. There are many versions of this story but representative perhaps is the way in which the Indian framers rejected the American formulation of the right against deprivation of liberty in a conscious effort to avoid the pitfalls of substantive due process. In so doing, they treated the American Constitution not as a model to be slavishly followed but as a source of knowledge that could be intelligently drawn upon.

A similar story has been told about the South African founding moment from 1991-1996, most notably by Heinz Klug in his book Constituting Democracy. There, again, the process is not well characterised either as one of wholesale rejection or wholesale adoption of liberal constitutionalist models. Rather, the 1996 Constitution was the interactive product of the then ascendant liberal consensus at the international level and South Africa’s indigenous tradition of political struggle. The provisions on social rights, for example, drew on formulations developed by the International Committee on Economic, Social and Cultural Rights, whose work had in turn been influenced by the anti-apartheid struggle of the 1970s and 1980s.

Both the Indian and the South African founding moments, this brief account suggests, exemplify the possibility of critical constitutional comparison without rejecting liberal constitutionalism out of hand. More than this, they each in their own way advanced international understanding of the possibilities of liberal constitutionalist governance in the post-colonial world, with implications also for how we understand this mode of governance in the West.

The second issue – of how best to analyse what has become of these two constitutional democracies – is inextricably connected to the debate currently being conducted in the literature about the virtues of transformative constitutionalism (TC) – the idea of constitutions as programmatic blueprints for thoroughgoing, state-led social and economic change that both the Indian and the South African Constitutions are thought to represent.

Is TC best understood as a qualitatively different variety of constitutionalism – the Global South’s answer to the failed liberal constitutionalist project – or as the extension of liberal constitutionalism to the circumstances of the Global South? If you hold the former view, are the challenges facing constitutionalist governance in India and South Africa proof of the futility of the TC conception? Conversely, if you hold the latter view, are these challenges proof of the inappropriateness of even a developed form of liberal constitutionalism to the circumstances of the Global South?

The former view dates all the way back to Karl Klare’s seminal 1998 paper on TC, in which he argued that the 1996 South African Constitution was a ‘post-liberal’ document. In its commitment to substantive equality and to the idea of state-led social transformation more generally, Klare argued, the 1996 Constitution went decisively beyond the liberal script. It instantiated nothing less than a comprehensively re-imagined model of state-society relations in which the value of individual liberty was de-emphasised in favour of the role of the state in promoting a more ‘egalitarian’, ‘caring’ society.

The second view was propounded by influential North American liberal legalists, like Ronald Dworkin, who saw in the 1996 South African Constitution not a radical departure from the liberal script but a further extension of it. All the features that Klare claimed as post-liberal were, according to this view, just the extrapolation of liberal constitutionalism’s core commitments to the circumstances of a deeply damaged society seeking to recover from years of institutionalised racism.

This divergence of views simply illustrates, of course, how different theoretical perspectives tend to remake the world in their own image. It is unlikely, therefore, that we will be able to settle this disagreement: it is a matter of faith and sensibility rather than evidence and proof. If that is so, however, we should try at least to preserve a space for both interpretations. The Indian and South African Constitutions may stand for a distinct variety of constitutionalism that departs decisively from the liberal script, but it is also possible to see them as attempts to re-imagine liberal constitutionalism from a Global South perspective.

The point to stress in relation to this second view is that the Indian and South African Constitutions were more than just mere adaptations of liberal constitutionalism to the circumstances of the Global South. They were inspired extrapolations of the full moral meaning and institutional prerequisites of that mode of governance. This means that our analysis of India’s and South Africa’s constitutional experience has implications, not just for the relevance of liberal constitutionalism to the Global South, but also for the debate around the future of liberal constitutionalism in the West. Indeed, that is precisely the sort of ‘double turn’ that Dann and his co-editors think of as happening when we view CCL through a Global South lens.

If that is accepted, future research in this vein needs to include at least some analysis of what to make of the ills that currently afflict constitutional governance in countries like India and South Africa. Are India’s descent into religious populism and South Africa’s descent into patronage politics proof of the failure of liberal constitutionalism in the Global South or evidence of the need for more liberal constitutionalism?

In the case of South Africa, twenty-five years after the adoption of the 1996 Constitution, there is a lively debate about whether to remake the Constitution along Africanist lines – as an autochthonous creation free of Western influence – or to double down on the constitutional project launched when Nelson Mandela was President. Joel Modiri, a South African scholar whose work Christine Schwöbel-Patel cites in her chapter (on p. 71), has been one of the main proponents of the former option. The 1996 South African Constitution, Modiri argues, privileges and perpetuates Western values in a way that ensures the ongoing cultural and economic marginalisation of the majority of South Africa’s people.

Politically, this view is represented by the opposition Economic Freedom Fighters party and the ‘radical economic transformation’ faction of the governing African National Congress (ANC). In a complex dynamic that I have explored elsewhere, these two groupings have pushed a left-populist constitutional reform agenda, the lynchpin of which is the current on-again off-again proposal to amend section 25 of the 1996 Constitution, the constitutional property clause, to expressly permit the uncompensated taking of land.

What are critical comparativists and liberal constitutionalists to make of these developments? Should we support them or oppose them? And would we differ all that much in our analysis and prescriptions?

My guess is that, faced by practical questions such as these, the disagreements between critical comparativists and liberal constitutionalists that appear to be so great at a theoretical level would largely disappear. Both would see in section 25 of the South African Constitution a careful attempt to balance the competing need to right the historical wrong of racially discriminatory land dispossession and to secure property rights against future arbitrary deprivation. They would also notice that section 25 in fact already allows for uncompensated takings in defined circumstances, and that the drive to amend the section is therefore more about populist political posturing than it is about addressing an actual legal impediment to fundamental social reform.

Whether we think of the 1996 South African Constitution, and transformative constitutionalism more generally, as a departure from the liberal script or as an extrapolation of the full moral meaning and institutional prerequisites of liberal constitutionalism would not make much difference to this analysis. The question in each case would be whether the proposed amendment is likely to promote constitutionalist governance or undermine it.

Adopting a Global South perspective, I am arguing, is not incompatible with the view that liberal constitutionalism is a repository of valuable ideas about the conditions for just and humane governance. Liberalism as a philosophy is characterised by a healthy suspicion of moral absolutes and a preparedness to change course in light of experience. A critical approach to constitutional comparison is in that sense built into its DNA.

Theunis Roux is a Professor and the Head of School of the School of Global and Public Law at the UNSW Faculty of Law & Justice, and an Affiliate of the Gilbert + Tobin Centre of Public Law’s Comparative Constitutional Law Project.

Suggested citation: Theunis Roux, ‘The Global South and liberal constitutionalism: incommensurable opposites?’ on AUSPUBLAW (2 July 2021) <https://auspublaw.org/2021/07/the-global-south-and-liberal-constitutionalism-incommensurable-opposites/>