The What, Where and How of Comparative Constitutional Law, after the ‘Southern Turn’
This post is a revised version of the plenary remarks delivered at the inaugural ICON-S Australia-NZ Chapter Conference on 30 August 2024.
04.11.2024
Introduction
I fear this piece will be both less and more than what is asked for.
It will be less in that I do not consider myself an expert on Global South constitutionalism, but only an observer of one slice of it: the constitutional systems of South and Southeast Asia. And my true expertise is even narrower than that. My research explores what happens when national constitutions confront another major source of normativity in nation-states: the one that Hirschl and Shachar have called the ‘rival’ to constitutional law, namely religion.
My comments may be more than what’s asked for in that I tend to take a wider view of comparative constitutional law than is typical at public law conferences. I am a social scientist who writes about people and topics that don’t always find their way onto the pages of the International Journal of Constitutional Law. Yes, I consider the work of judges, lawmakers and national constitutions. But I also think about Buddhist monks, protest leaders and firewalkers. For me, they are also constitutional actors—or so I hope to persuade you.
So I offer these comments with humility.
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Having said this, no one who works on comparative constitutional law—in whatever form—can ignore the importance of what’s been called the ‘Southern Turn’ in constitutional studies. The Southern Turn arrives alongside other movements in the academy, such as postcolonial studies, subaltern studies and decolonising methodologies—all of which ask scholars to look again at what, where and how we do our craft.
The Southern Turn is more than just a call to examine Global South jurisdictions. It urges us to rethink what Dann, Riegner and Bönnemann have called the ‘sensibility’ of scholarship: its methods, perspectives and institutional conditions. It poses a question: Can we move beyond treating Western liberal models as the source and prototype of constitutional law? Can we think of Global South jurisdictions not simply as recipients of liberal constitutionalism, or aspirants to it, but as active creators, innovators and critics in the production and reform of constitutional models?
This does not mean throwing out liberal constitutionalism, I hasten to add. The goal of the Southern Turn is not to replace one essentialism with another—trading a liberal idealism for some other type that is somehow more authentic or autochthonous: a constitutionalism based on Buddhist or Hindu values, for example. Projects like this are already underway in places like Sri Lanka and India and they have been anything but liberatory. The Southern Turn asks us, simply, to consider liberal constitutionalism as one among several doctrines of limited government operating in the world, rather than the Platonic ideal. And it pushes us to reconsider our work in light of that recognition.
And that is precisely what I want to do here: I want to offer some reflections—from the perspective of a social scientist—about how the Southern Turn might impact the what, where and how of comparative constitutional law.
The What of Comparative Constitutional Law
As with many academic fields—such as religious studies or Asian studies—what unites comparative constitutional law is the notional singularity of its object. When we go to conferences like ICON-S we assume we’ll be talking about a particular type of public law using particular frames of analysis. Chances are we’ll discuss national constitutions: what they contain and how they were produced, amended or interpreted by courts. We’ll acknowledge diversity, of course: written and unwritten constitutions, big C and small c ones, constitutional law in the courts and in constituent assemblies. But compared with similar conferences on religion or Asian studies we tend not to be overly concerned with critiquing ‘constitutions’ as a category.
One consequence of this is a temptation to speak about national constitutions—and other forms of public law—as though their nature and function were self-evident: as though they constituted hardware, which, correctly designed and properly used, encouraged limited government.
Southern Turn scholars ask us to look again at this hardware, acknowledging not only its circuitry—courts, entrenchment provisions, rights clauses—but also its origins and assumptions. Constitutions, after all, come with more than just hardware. They also come with software: ideas, values, vocabularies, epistemologies and practices of interpretation. They come with people: lawyers, jurists, law school professors—epistemic communities that have their own customs and behaviours.
That is to say, constitutions bring more than just tools of social engineering. They bring culture: notions of authority and deviance, virtue and vice, hierarchies and structures of kinship. Like all cultures, constitutional cultures present the world to us in a particular way. They have their own standards and languages, their own stories and worldviews.
Constitutional cultures frame life according to categories and commitments that can be narrower and less natural than one might expect. Imagine a dispute concerning the permissibility of firewalking in public—a special but not unusual practice in Sri Lanka and other parts of the world, in which participants walk barefoot across hot coals (depicted in the image below). In defending firewalkers’ actions, a public lawyer will likely reach for the category of religion and religious freedom. They might even use subcategories: beliefs and practices, conscience and manifestations.
Yet, if you were to ask people what they are doing in this photo, chances are that very few will speak about religion. It is more likely that you will hear about promises or vows, or the great distances firewalkers have travelled to put their feet to the coals. Nor will participants identify with a single religious community: firewalking tends to be a collective event done by Buddhists, Hindus, Christians, Muslims and agnostics together, and for a variety of reasons.
I present this fictional case to make a (perhaps obvious) point: constitutional cultures do not simply mediate reality as it is. They represent the world in a reduced, ‘skeletonised’ way, making salient one particular set of categories and interests while overlooking (or overwriting) others.
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The Southern Turn encourages us to reflect on this fact. It asks us to reconsider the practices, categories and worldviews—that is, the cultures—that come with constitutional law and its study. Like the proverbial fish, it urges us to look at the water in which we swim.
When it comes to this task, there is good work to build on. There are articles theorising ‘constitutional culture’ by David Kenny, Cheryl Saunders and others. There are books by Paul Kahn and Ben Berger on the ‘cultural study’ of law. We have the writings of scholars such as Harshan Kumarasingham and Theunis Roux, who explain political behaviour in South Africa and South Asia by appealing to constitutional law’s software as well as its hardware.
Similar attention to constitutional culture can be seen in the emerging fields of comparative constitutional theory. Asifah Quraishi-Landes, Clark Lombardi and Andrew March, have written about Islamic constitutionalism. Bui Ngoc Son and Sung Moon Kim about Confucian variants. John Borrows, Margaret Mutu, Moana Jackson, Carwyn Jones, among others, write about indigenous theories of sovereignty and law. Tom Ginsburg and I have taken our own stab at thinking about constitutional culture in a Buddhist framework.
These alternative constitutional cultures draw on local traditions of morality, religion and indigenous lifeways. They address questions of sovereignty and governance—and perhaps firewalking—using other terminology and frames of reference. They look at events and foreground different features of life, drawing on different categories of thought.
Taking these works seriously forces one to acknowledge that, in most places and times, we don’t just have a single form of constitutionalism but a range of constitutionalisms. We live alongside multiple Grundnorms, all operating at once.
This is not such an exotic idea, at least in Aotearoa. Most scholars in New Zealand readily acknowledge the presence of at least two constitutionalisms influencing political and legal culture here—located, among other places, in the very different English and Māori versions of the Treaty signed at Waitangi.
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Yet constitutional cultures also exist beyond the nation-state. Gunther Teubner and others have written persuasively about societal constitutions. Kirsty Gover, Erin Delaney and Beth Redbird have examined tribal constitutions. I have argued for the importance of looking at the constitutive laws of religious communities as comprising an important feature of our multi-constitutional present.
These kinds of things fall out of our frame of reference in our usual assessment of the what of comparative constitutional law. Yet, I would argue, constitutional cultures—including, but not limited to, liberal ones— should also be part of what we study. We should look closely at the various kinds of values, categories, assumptions and notions of governance that are in the water we breathe (remember: we’re fish in this metaphor).
Doing so is not simply an exercise in recognising multiplicity for its own sake. Acknowledging the diversity of constitutional cultures allows us to see the choices we are making when we rely on one set of categories rather than another. It helps expose the costs or benefits of skeletonising reality in a particular way.
For example, I believe that there is much to gain from conceiving environmental protection using Māori categories of guardianship, kaitiakitanga, rather than using Lockean notions of property. You may not agree, but we can at least see the decision we’re making. We can recognise that liberal constitutional culture is not the only fishbowl. There is a much larger sea of possibilities.
The Where of Comparative Constitutional Law
Questions of where—where constitutional law is—stand at the core of the Southern Turn. Calls to address the Global South were initially calls, as Saunders put, to expand the ‘gene pool’ of case studies on comparative constitutional law. While there is much more to do, this plank of Global South constitutionalism has largely succeeded. We now have multiple volumes and even book series on constitutional law in Asia, Africa and Latin America.
Yet, if we are to take seriously the provocations of the Southern Turn, we ought not to think of location in strictly jurisdictional terms, but also institutional ones.
What would it mean to expand the where of constitutional law institutionally?
It would almost certainly mean broadening the institutions we study. As Melissa Crouch has recently pointed out, it is still very much the case that the field of comparative constitutional law mostly considers two institutions: courts and constituent assemblies—and within those institutions, a small number of thematic cul-de-sacs. Crouch calls these ‘the three Rs’: rights, reasoning, and remedies.
Although we tend to look for constitutional law in courts and assemblies, constitutional law also has a busy life outside these places. It appears in films, protests, music and popular culture. Indeed, as I’ve argued elsewhere, constitutions should be considered as having multiple lives—not just one.
More precisely, constitutions may be said to have four lives. Constitutions have a pre-enactment life as the carefully worded product of negotiations by political elites; and they have a post-enactment life as a collection of rules and principles that we use to navigate a shared political future. Constitutions also have a legal life as technical instruments invoked by judges and bureaucrats; and they have a societal life as a source of authorised discourse and symbols that mean things and do things in popular culture.
Here’s the thing: constitutions function differently in these different lives. The same provisions that galvanise constituent assemblies can be disastrous when interpreted in courts. Ornamental phrases from a preamble can be used as incendiary slogans in street politics, and so on. Looking at these different lives—and especially at the gap between the legal and societal ones—helps to explain why the same constitutional principles that look great on paper may be horrible in practice.
If we are to swim with the current of the Southern Turn, we might do better to speak not of ‘constitutional law’, but ‘constitutional practice’, a phrase that acknowledges that constitutions also live outside legal institutions. They live among journalists, advocacy groups, soap opera writers, tuk-tuk drivers and military officers.
If we want to know about constitutions’ effects on society, we ought to examine how they live in the wild. After all, this is where constitutional principles circulate 99% of the time. We’re pretty good at considering how constituent power, rule of law, or fundamental rights look in courts; but how do they function on the street? How do they look in their private lives?
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If we broaden how we look at constitutional law in the field, we may also need to broaden where look for it in our universities. In many ways, the Southern Turn aligns with the push, also underway, from Comparative Constitutional Lawto Comparative Constitutional Studies.
We can see this at the Gilbert Tobin Centre or the Centre for Comparative Constitutional Studies in Melbourne, among other places. In a perfect world, centres like this would grow beyond Law Schools and include Social Science and Humanities programmes and scholars. As would editorial boards and professional bodies concerned with constitutional law.
But universities move slow, and those kinds of changes are hard. That said, I am also aware of some success stories. Recently the NZ Council of Legal Education has made it a requirement that we teach tikanga Māori across our law school curriculums, in all branches of law: public, contract, tort, etc. Although the mandate starts next year, we’ve started to do this at Otago already. And the benefits have been clear. Among them has been has been a deepening connection between our Law School and our Humanities Division. To really address bijuralism and legal pluralism, it helps to work alongside historians and scholars of Māori language and culture. It can also help to have a law-and-society approach, which we’ve been trying to support with our new Otago Centre for Law and Society.
The How of Comparative Constitutional Law
I have spoken so far about the what and where of comparative constitutional law. In so doing, however, I have also touched on questions of how: how constitutions function as culture, how they work in society, and how they are approached within the academy.
In recent years, another how question has become particularly important for many of us: the question of how constitutional systems work (or fail) to support democracy—including in its perceived citadels, like the US and India.
The importance of this how question appears in our research. The last decade or so has given us work on authoritarian constitutionalism, illiberal constitutionalism, abusive constitutional borrowing and military constitutionalism. Even the literature on transformative constitutionalism has been subject to new kinds of appraisal and invigoration. All of this has shaken scholars’ faith a bit—particularly our faith in the power of constitutions to promote democracy, and other good outcomes.
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Let me give you an example from my own research.
People regularly turn to constitutions to help address conflicts over religion in divided societies. All things being equal, a better constitution ought to diminish the potential for strife among religious communities. Or so we expect.
When we look at the matter empirically, however, it’s not clear that this is the case. Consider the table below. The measurements come from two publicly available datasets. The first is from the Pew Forum, which—between 2007 and 2016—measured ‘social hostilities related to religion’ in every country in the world. Each got a score out of 10 based on 13 separate indicators. The second dataset is the Comparative Constitutions Project developed by Tom Ginsburg and Zachary Elkins.
What you see are the 13 constitutions that were enacted between 2007 and 2011, as well as the change in religious hostilities that were measured two years later (in red) and five years later (in blue). It’s not pretty. Most of these constitutions were considered to be improvements on what came before, or first-ever charters designed for a newly formed polity. Yet even a casual look at the chart shows a worrying correlation between constitution-making and religious hostility. In most cases, hostilities did not decrease but increased, especially at five years.
Now this is rough science. And it shows correlation, not causation. There are far too many factors in these cases to draw a clear arrow from constitutional law to religious hostility. And that is precisely the point: constitutional law does not work in a simple inputs/outputs way, with the right inputs inevitably leading to good outputs.
We should read charts like this as an encouragement to think again about how constitutions participate in larger social settings. When it comes to religion, if constitutions do not simply reduce conflicts, what role do they play?
In my own work, I’ve argued that there is causality here, but it is the opposite kind of causality than the one we usually presume. In Sri Lanka, I’ve found that, when it comes to conflicts over religion, sound constitutional practice—elected constituent assemblies, principled drafters, accessible public law remedies, and so on—have produced unsound outcomes. Constitutional law has enhanced, rather than diminished, religious tensions.
Constitutional law does this by sharpening the ways that people express and manage conflicts over religion. It encourages them to frame complex disagreements as simple conflicts over religious freedom. It funnels multi-sided, contextual disputes towards the agonistic, binaristic setting of courts.
Rather than buttressing interreligious harmony, the turn to law has eroded longstanding, informal practices of coexistence among religious communities—recoding them through the polarising protocols of litigation and the totalising language of rights.
Simply put, when it came to conflicts over religion in Sri Lanka, ‘good’ constitutional inputs produced ‘bad’ social outputs. Sri Lanka’s constitution deepened the very religious divisions it aimed to mediate. Sri Lanka’s legal victories were pyrrhic victories—a dynamic I’ve referred to (rather inelegantly) as ‘pyrrhic constitutionalism.’
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Even if you don’t want to go as far as me, findings like these (at the very least) raise questions about the inconsistent and unanticipated effects of constitutions on people’s lives.
Again, I am not saying we should give up on liberal constitutionalism—but only to hold it to account. We should look empirically at how it works and be on guard against the messianism that can seep into our thinking: the idea that the good world is yet to come, if we just get the constitution right.
Constitutions, it would seem, do more and less than structure our legal order: they create identity (sometimes chauvinistic ones); they legitimate governments (sometimes authoritarian ones); they create new incentive structures (that may widen social divisions rather than stitch them together).
Constitutions may also heal illness and ward off evil. In 1930s Thailand, for example, constitutional revolutionaries rolled up copies of the new charter and wore them around their necks as amulets, empowered to enhance the life of the wearer. If you think this sounds far-fetched, I encourage you to read the biography of United States Supreme Court Justice Hugo Black, who never left home without a miniaturised copy of the USA constitution and bill of rights in his pocket—a copy with which he insisted upon being buried.
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When we broaden our perspective on how constitutional law works, we also see the benefits of broadening how we think about our research. As someone who has worked with qualitative and quantitative data, I appreciate the allure of numbers. Yet, the kinds of perspectives I’m talking about here are harder to get to from existing datasets where the categories of classification are already given. That’s one of the reasons that Southern Turn theorists have urged what Surbhi Karwa calls ‘immersive comparison’, slow, contextual, and bottom-up modes of inquiry.
Most of the time we talk about small-scale qualitative and large-scale quantitative approaches as though they were opposed. We call them big-n and little-n studies: big-n yields wide comparisons, we say; while little-n gives us local distinctiveness. Yet this is a false opposition. Big datasets can highlight single-country idiosyncrasies; and single-country studies can be highly comparative, engaging in cross-sectional histories or highlighting the ways that local actors engage in constitutional comparison. Consider, for example, the case of Japanese and Thai public lawyers who circumnavigated the world in the late-19th and early-20th centuries in order to learn about the constitutive laws of others, when preparing their new charters.
What we have here are not competing but complementary perspectives that should be deployed together, but in new ways: for example, we could build databases that normalise other languages and categories of comparison—and that don’t assume that our current frames and categories have the most explanatory power. There’s a whole world of possibilities for mixed methods in our field.
Conclusions
In the introduction to their book on the Southern Turn in comparative constitutional law, Dann and his coauthors writethat ‘...the Southern turn is a double turn: after the pivot to the South, it turns back to the North and to the world as a whole’. What they mean is that expanding the ‘gene pool’ of constitutional law does not just mean broadening the space within our fishbowl. Among other things, it means looking at the fishbowl itself and asking what, where and how it shapes our perspectives. That’s what I’ve tried to do here.
I’ve argued that constitutions are not just hardware, but software: they have cultures and epistemic communities that we should also examine. I’ve suggested that liberal constitutional cultures exist within a larger ocean of others, a multiverse that also includes things such as religious and indigenous constitutions and theories of limited government.
I’ve encouraged us to look at new institutional locations: moving beyond courts and constituent assemblies to consider the societal lives of constitutional law; and reconsidering the location of constitutional law in our universities and professional societies.
I’ve asked us to think again how constitutional law works. And how we study how it works. To gaze into the ocean and consider the many kinds of effects that constitutions can have in the world—the multiple outcomes of constitutional practice, including ones we don’t like.
Finally, I’ve urged us to reconsider how we research, linking up large-n comparisons and single-country case studies—or, what I prefer to call comparisons from the outside-in and the inside-out.
I don’t claim that all of these provocations are new. Some of these simply accentuate others’ arguments. Indeed, the fact that I’m giving this plenary—as someone who’s made their career doing socio-legal studies mostly outside of law schools—is at least some indication that the field is already moving in these directions.
But clearly, there’s still more to go—so much farther to swim. My hope is that these reflections help in this journey.
Benjamin Schonthal is Professor and the Head of the Religion Programme and Affiliate Professor in Law at the University of Otago.
Suggested citation: Ben Schonthal, ‘The What, Where and How of Comparative Constitutional Law, after the “Southern Turn”’ (4 November 2024) <https://www.auspublaw.org/blog/2024/11/the-what-where-and-how-of-comparative-constitutional-law-after-the-southern-turn>