The Global South Critique of Liberal Constitutionalism
This post is a revised version of the plenary remarks delivered at the inaugural ICON-S Australia-NZ Chapter Conference on 30 August 2024.
05.11.2024
There have been two significant developments in comparative constitutional studies over the last decade. First, the rise of authoritarian populism in Europe and the Americas has produced an outpouring of literature on the causes of this phenomenon and what can be done to protect constitutional democracies against it. Second, after a long and mysterious delay, the Global South critique has finally arrived in the field – hauling it kicking and screaming into, not quite the twenty-first century, rather something more like the 1980s in the humanities after Edward Said’s intervention – with a lot of ground still to make up.
Both of these developments have already had beneficial effects on the field.
The rise of authoritarian populism, as worrisome as it has been, has at least forced positivist social scientists to declare their normative commitments – to say what it is they care about when they measure things. It turns out that, beneath all the scatter-plot graphs and causal pathways, most of them are committed to the value of liberal-democratic government. The effect of this, in turn, has been to close the conversational gap between social scientists and lawyers, who have generally been quite happy to wear their normative commitments on their sleeves. While we might bemoan the geopolitical causes of this scholarly rapprochement, the happy consequence is that a multidisciplinary field of comparative constitutional studies seems closer than ever before.
The emerging Global South critique is also to be welcomed. It has long been a curious anomaly that TWAIL (‘Third World approaches to international law’) has had no direct equivalent in comparative constitutional studies, or that post-colonial scholarship more generally has not had a greater foothold in our field. We can ponder the reasons for this, but the point for now is to welcome the Southern turn as long overdue. No scholarly field can survive if it is based on uninterrogated assumptions about the moral principles that animate it.
Together with the challenge posed by authoritarian populism, the Global South critique completes a quartet of challenges to liberal constitutionalism that are currently driving a lot of activity in the field. The other two members of the quartet not yet mentioned are the left critique of economic inequality and the challenge from political constitutionalism. Both of these challenges are more established, with the left critique going all the way back to Marx’s essay ‘On the Jewish Question’ and the political-constitutionalist challenge to the scepticism about judicial review that set in among American constitutional scholars in the 1980s, and then spread to the United Kingdom and New Zealand. As most recently articulated by Martin Loughlin, the political-constitutionalist challenge is a challenge not so much to the liberal in liberal constitutionalism as to the constitutionalism in that phrase, by which is meant the ideological hegemony of judicially enforced, written constitutions in global governance.
These four challenges have different emphases of course, but they also overlap each other in various ways. Thus, the political-constitutionalist challenge finds an unwanted sympathetic audience among authoritarian populists, who share its distaste for liberal judicial elites. Judicial elitism is also one of the objects of the left critique, which sees rights-based judicial review as removing questions of systemic economic inequality from democratic reach. The Global South critique, too, connects to this theme in its portrayal of liberal constitutionalism as a device for the perpetuation of the privileged role of Westernised elites in post-colonial governance. Read together, the cumulative effect of these four challenges has been to call into question liberal constitutionalism’s status as the default normative baseline for the field of comparative constitutional studies.
In the midst of this rapidly changing context, I find myself in the awkward position of being a committed liberal-constitutionalist – for better or worse, in sickness and in health. Like Ben Schonthal (see his post here), I am not from the Antipodes. Rather, I entered academia in South Africa in the 1990s – a time of immense optimism about the possibilities of constitutionally-mandated social change. For reasons that Jens Meierhenrich has powerfully explained, one important sub-dimension of the anti-apartheid struggle – the part that was played out through the courts – was founded on a liberal-legalist conception of law, both as a protection against the abuse of political power and as a democratically controllable tool for the improvement of society. Precisely because the apartheid state had sought to legitimate itself through law, its dismantling, too, it was thought, needed to be effected through law. I started my LLB degree at the University of Cape Town in the late 1980s when this idea was approaching its zenith, and I have never quite been able to wean myself off its heady mix of idealism and practical problem-solving.
This situated perspective inevitably informs my response to the four challenges to liberal constitutionalism just mentioned, and to the Global South critique in particular. Having been witness to its adoption, and no doubt also because of my class status and racial identity, I find criticism of the 1996 South African Constitution difficult to respond to dispassionately. It is deeply personal to me and goes to the core of my desire to feel accepted and included in the country I still think of as home. Moreover, unlike some others who choose to ward off the Global South critique by categorising the South African Constitution as a post-liberal document, and therefore by definition impervious to the charge of perpetuating Western values, I view the South African Constitution as falling squarely within the liberal-constitutionalist tradition – extending it and particularising it to local conditions, albeit this time in the circumstances of the Global South. That makes my situation doubly difficult, as it were. I am not only emotionally attached to liberal constitutionalism. I am intellectually committed, too.
Rather than marking a departure from liberal constitutionalism, in my view, the 1996 South African Constitution was an attempt to adapt this tradition to the demands of post-apartheid governance. This can be seen, for example, in its recognition that civil and political rights need to be supplemented by justiciable socio-economic rights, and in its provision for fourth-branch institutions to protect democracy in circumstances where an open and competitive political system cannot be assumed. Like the Indian Constitution, the South African Constitution also accords a much greater role to the state in overcoming past injustices, including the legacy of colonialism. It contains a readily identifiable conception of the desired post-colonial society in that sense. For some, that means that it violates a core tenet of liberal constitutionalism — neutrality between competing conceptions of the good. But I prefer to see this as a necessary correction of liberal constitutionalism’s blind spot in respect of this issue, namely that it is possible to specify in much greater detail the institutional preconditions for human flourishing without abandoning liberalism’s disinclination to prescribe one version of the good life over another.
Seeing the South African Constitution in that way makes things more difficult for me when responding to the Global South critique because I am denied the simple retort that, in dispensing with liberalism, the Constitution dispensed with Western values as well. In the end, however, I think this reading is both more faithful to what actually happened in South Africa in the 1990s and also more respectful of the Indigenous political agency that was on display during that time. Viewing the South African Constitution as falling squarely within the liberal-constitutionalist tradition, albeit adapting and revitalising it, allows one to celebrate the Constitution for what it was – a remarkable African achievement. And conversely, not doing that, plays into the very prejudices about Indigenous political agency that decolonial critics seek to dispel.
In short, I am a committed liberal-constitutionalist, but of a particular type – one who sees liberal constitutionalism as having already transcended its origins in the Global North, to become relevant to governance in the Global South. Where decolonial critics see epistemicide 2.0 – a second wave of culturally insensitive destruction of African lifeways under the guise of a post-colonial constitution – I see an authentic process of cultural syncretism, of the renewal of liberal constitutionalism through its encounter with the Global South.
With my situated perspective clarified in this way, I proceed now to offer three points of engagement with the Global South critique.
First, to have a conversation about liberal constitutionalism, we need to have an informed understanding of what it is we are either defending or critiquing. Liberal constitutionalism is typically identified with a set of values and conceptions of the appropriate role of the state, but it is more than that and getting this aspect of the conversation right is a crucial first step when rethinking its place in the field.
Second, we need to always carefully distinguish between the descriptive and normative claims we make about liberal constitutionalism. It is one thing to argue that constitutionalism is not necessarily liberal and another thing to argue that liberal constitutionalism is not an appropriate option for a particular country.
And, third, we need to distinguish between the role of liberal constitutionalism in societies where, for historical reasons, it has some cultural and ideological purchase and societies where that is not the case.
I proceed now to elaborate on each of these three points in turn.
1. First: What is liberal constitutionalism?
The main complaint made by decolonial critics against liberal constitutionalism is that it falsely portrays Western values as universal. But the ‘West’ in this charge sheet is just as culturally reductionist as the Orient of Orientalism. Are English values the same as American, French values the same as German, and so on? Should we then rather say that liberal constitutionalism is the product of the European Enlightenment – an identifiable set of ideas that began to emerge in the 18th century? Even that would be somewhat misleading since it was not until those ideas were given institutional form in the United States in 1789 that anything like liberal constitutionalism could be said to have arisen. To that extent, I agree with Loughlin that liberal constitutionalism does have very precise origins. Whether it is as malign a governance form as he claims is another matter.
The other respect in which I depart from Loughlin is in relation to his tendency to homogenise different varieties of liberal constitutionalism. For all the specificity of its origins, liberal constitutionalism is not a coherent ideology in the way he portrays it. Rather, it is an evolving tradition of governance that, yes, is committed to certain core principles, like the rule of law, but only as ‘essentially contested’ concepts that have no agreed meaning, and never will. It is thus in the nature of liberal constitutionalism for those invoking this tradition to dispute what its core principles mean, both conceptually and in light of feedback from experience. Every liberal constitution is a unique attempt to instantiate the liberal-constitutionalist tradition and also an opportunity to learn more about how to realise its ideals in practice. It follows from this that there are as many varieties of liberal constitutionalism as there are countries that have adopted a liberal constitution.
Rather than being identified with certain fixed values then, liberal constitutionalism should be seen as a tradition of pragmatic, context-sensitive governance – of humility in the face of the complexity of the world and a commitment to learning from experience. Liberal constitutionalism is philosophically similar to the scientific method in that sense. Its propositions are not offered as dogmatic truths but as revisable conjectures about the institutions most apt to promote human flourishing in different circumstances, where even what it means to flourish is subject to contestation.
Put like that, liberal constitutionalism is closer to the spirit of American pragmatism than it is to the European Enlightenment as a whole and its other outgrowths. While that might sound like too easy a concession to the decolonial view, this conclusion in fact has profound implications. It means, for example, that when liberal constitutionalism migrated to West Germany in 1949, it was already crossing a formidable epistemic boundary, from a country whose inhabitants tend to prefer learning from experience to one where people are more prone to ideal theorising. And that in turn makes it hard to distinguish liberal constitutionalism’s capacity to put down roots in Germany from it doing the same thing in India in 1950. Why should the former be regarded as culturally benign and the latter as epistemicide 2.0? In both cases, liberal constitutionalism was binding itself to, and renewing itself through its encounter with, an Indigenous governance tradition that had certain elements that were receptive to what it had to offer. It is circular reasoning to say that liberal constitutionalism is inherently and forevermore Western and therefore what happened in India was necessarily the imposition of alien values.
In any event, when liberal constitutionalism is criticised, it is this internally contested, experimentalist tradition that must be criticised. When this is understood, we can see that the Global South critique loses much of its force. It is one thing to condemn the imposition of a fixed set of cultural values and another to regret a democratic constituent assembly’s decision to draw on the resources of an inherently adaptable tradition.
Without going into further detail on this point, let me just list what I think are liberal constitutionalism’s five main attributes: (1) its organisation around a set of essentially contested and culturally adaptable core moral principles; (2) its commitment to continually revising its conception of the institutional preconditions for human flourishing in defined contexts; (3) its capacity to be used to drive a particular kind of social change (one that allows marginalised social groups to challenge its core moral principles to demand those principles’ reconceptualization in light of experience); (4) its inherently comparative nature; and (5) its claim to a specific kind of universalism – not the universalism of a set of fixed and clearly defined core moral principles but the universalism of its essentially contested and culturally adaptable principles.
2. Second: Descriptive vs normative claims
My second point of engagement with the Global South critique is to note the importance of distinguishing descriptive from normative claims about liberal constitutionalism. This is a smaller point than the first, but it is nonetheless a very important one.
It is thus one thing to say, as Günter Frankenberg does, that there are many ‘varieties of constitutionalism’. It is another to rank all these varieties as morally equivalent, as though there was no normative vantage point from which we could possibly say that Marxist-Leninist constitutionalism (one of Frankenberg’s examples) didn’t turn out so well. This is the sort of moral relativism that does the Global South no favours. When beleaguered Zimbabweans had one small window of opportunity in 2013 to adopt a new Constitution to end 33 years of oppressive ZANU-PF rule, they drew liberally on liberal constitutionalism.
In saying this, I accept that liberal constitutionalism has, for far too long, been used as the default normative vantage point from which to assess the moral worth of non-Western governance systems. There is indeed something deeply offensive about a purportedly neutral freedom index when it is used to condemn morally worthy, but culturally unfamiliar practices. But there is a difference between the unthinking use of culturally chauvinistic indicators to direct the flow of development aid, say, and critical engagement with the repertoire of liberal-constitutionalist ideas when drafting a new constitution.
To put this point slightly differently: The fact that descriptively there may be many different varieties of constitutionalism does not settle the normative argument about what form of constitutionalism serves a particular society best. If we confuse the descriptive with the normative in this way, we end up with the kind of typology that Frankenberg offers in his book, where liberal constitutionalism is reduced to the fear of public power and treated as just one type of constitutionalism among many, none of which is inherently more attractive than the others. That sort of account is descriptively inaccurate in so far as it forces the many different varieties of liberal constitutionalism into one unidimensional ideal type. It is also morally timid in so far as it gives up on the possibility of there being any trans-cultural normative framework by which we could adjudge the relative worth of these different constitutionalisms. And yet, such a trans-cultural framework is clearly needed if we are to address the major governance challenges that confront us today, including climate change and global inequality.
3. Third: The decolonial critique in different settings
I turn finally to my third point, which has to do with the difference between the Global South critique as it figures in countries where liberal constitutionalism has some cultural and ideological purchase and countries where it does not. This is a tricky point because often in the Global South the reason liberal constitutionalism may have some purchase is because the country concerned was colonised. For some decolonial critics, that is all that needs to be said. Liberal constitutionalism must be rejected, not because it has no relevance but because, in a sense, it has too much relevance – too many associations with the abuse of political power under colonialism to be taken seriously. But that argument proceeds too quickly because in many instances the discourse, or at least one significant discourse, through which the anti-colonial struggle was waged was the discourse of liberal constitutionalism. It was precisely the colonial state’s non-fulfilment of its so-called ‘civilising’ mission that was successfully used to show up its contradictions and eventually overcome it. In those circumstances, to reject liberal constitutionalism for its association with the colonial state is to reject a historically powerful discourse and moreover one that in some instances might be the only surviving discourse through which is it possible meaningfully to speak about tempering power.
Even if that is not the case – even if there exists some surviving pre-colonial governance tradition that could be drawn upon as an alternative to liberal constitutionalism, two other things might be true. First, the surviving governance tradition might already have merged with liberal constitutionalism during the anti-colonial struggle such that it is no longer possible to disentangle the two, at least not without denying the democratic legitimacy of the constitution-making process. (Think here for example of the Indian Constitution’s conception of secularism, which is geared towards the equal public recognition of all religions rather than the separation of church and state.) Second, there might be groups in the country for whom a reversion to a mythologised, pre-colonial governance tradition would be its own form of epistemicide, at least if that pre-colonial governance tradition was not given an inclusivist, dare I say, liberal, inflection.
Both of these possibilities are not imaginary worries in the Global South. In India, for example, an ethno-nationalist account of Hindu governance traditions is currently being used to contest the authentic Indianness of the 1950 Constitution and to oppress the Muslim minority in that country. And in South Africa, decolonial critics, when called on to say what their vision for the country’s constitutional future is, have argued that South Africa should be reconstituted as a confederation of ethnically defined states.
The associated problem with the move to reject liberal constitutionalism in these culturally syncretic settings, as noted already, is that it often leads to the misrecognition of the political agency on display in the constitution-making process. In their attempts to purify their countries of Western influence, decolonial critics end up having to condemn the constitution’s authors as mentally colonised elites who sold their own culture out. This often requires a tremendous amount of forced rewriting of history and demonisation of historical figures such as Mandela and Gandhi who were genuine heroes of the anti-colonial struggle.
The situation in countries where liberal constitutionalism has little, or no, cultural or ideological purchase is of course completely different. There, the embrace of non-Western forms of constitutionalism may entail neither of the two concerns I have just mentioned: first, of doing violence to history; and second, excluding certain social groups. And, conversely, comparative scholars who try to understand such settings through the lens of liberal constitutionalism risk all of the well-known problems of cultural distortion and chauvinism. Nothing in what I have said should therefore be taken as resistance to the study of Buddhist constitutionalism, say, and its introduction into the field as an alternative source of normativity while adding to the descriptive richness of our comparative understanding of the different varieties of constitutionalism.
Conclusion
Since this is the Australia-New Zealand chapter of ICON-S, what I am saying should also not be taken as resisting the call for bicultural governance institutions and treaty-making. Where a dominant culture has usurped an Indigenous people’s right to govern itself according to its own traditions, there is a special responsibility on it to embrace biculturalism as a vehicle for national reconciliation and healing. Unlike countries like India and South Africa, there can be no talk in Australia of an already achieved, democratically mandated process of cultural syncretism.
When I say we should welcome the Global South critique as long overdue, this is then what I mean. The normative baseline of the field does need to be culturally pluralised, and we should be open to the whole gamut of human responses to the challenge of living together in harmony. But at the same time, we should not descend into the nightmare world of moral relativism where we become incapable of condemning oppressive actions that ought to be condemned. There is surely some middle path between Western hubris and ‘every nation for itself’.
Theunis Roux is Professor and Head of the School of Global and Public Law, UNSW Faculty of Law & Justice, and Co-Director of the Constitutionalism in the Global South Project within the Gilbert + Tobin Centre of Public Law.
Suggested citation: Theunis Roux, ‘The Global South Critique of Liberal Constitutionalism’ (5 November 2024) <https://www.auspublaw.org/blog/2024/11/the-global-south-critique-of-liberal-constitutionalism>