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Dinesha Samararatne, Review of Philipp Dann, Michael Riegner, and Maxim Bonnemann, eds., The Global South and Comparative Constitutional Law

Dinesha Samararatne, Review of Philipp Dann, Michael Riegner, and Maxim Bonnemann, eds., The... Refreshing, provocative, and unsettling are the words that come to mind when reading this edited volume. The volume confronts several blind spots in comparative constitutional law (CCL) and has the effect of disturbing some established ideas in the field.1 It has the potential to leave the engaged and sympathetic reader with more questions than answers. In this review, I consider the provocations offered in this book and explain why I think they amount to a turning point in our field. First, I introduce some of the key ideas presented. Second, I consider the intellectual purchase of these ideas. I conclude by pointing to the ways in which this volume resonates with similar efforts in other disciplines. The twelve chapters in this collection can be grouped into four categories. The first, chapters 1–5, are theoretical. The introduction calls for a paradigm shift in how the Global South in CCL is to be interpreted and considers its implications for theory and scholarship. Chapters 2, 3, 4, and 5 interrogate specific ideas which, together, constitute this call for a paradigm shift. The second set of interventions (chapters 6–9) examines transformative constitutionalism in South Africa, India, and Brazil to identify lessons learnt. A consideration of inequality and constitutionalism constitutes the third category (chapters 9–10), followed by the fourth and final category comprising two chapters that examine authoritarianism (chapters 11–12). The wide range of topics covered in this edited collection offers something of interest to most CCL scholars. For those who are interested in the specific jurisdictions, there are several case-studies (South Africa, Brazil, India, and Mexico); for those who are curious about specific conceptual puzzles, there are theoretical chapters; and the introduction for those who have questions about the ongoing debate about the “Global South” in the field. Presented in this way, the volume engages the converted as well as the skeptic in the debate on the relevance of the Global South in CCL. Perhaps most importantly, the book prompts a range of questions to which the reader may not necessarily find all answers in the volume itself. It therefore provokes further debates, rather than settling them, even temporarily. Philipp Dann, Michael Riegner, and Maxim Bonnemann’s collective call for the “Southern turn” in CCL has been the tagline by which this volume has come to be known. To me this call is a convincing one and long overdue. Their typology of CCL “for,” “with,” and “from” the Global South is already shaping academic debate (at 11–13). Their insight is not only accurate but also recognizes the anxieties long felt by CCL scholars whose academic interests are vested in the Global South. The rich analysis offered in the introduction provides all scholars (believers, agnostics, and deniers) with a clear entry point into the debate. This introduction easily passes the “Weiler test” for an introduction to an edited volume, that is to say “a major contribution in its own right.”2 Four theoretical chapters follow. Here, I consider two of them in some detail. Florian Hoffman’s chapter, “Facing South: On the Significance of An/Other Modernity in Comparative Constitutional Law,” inquires into whether “facing south” will allow the scholar to find the “other” in CCL (at 43). Hoffman’s frank assessment is that it will not. He rightly notes that “Souths” and “Norths” are “transnationally interconnected and form a patchwork of stratified constituencies that cross cut—and irritate—both national politics and international governance” (at 46). In developing this line of inquiry, he brings us back to the view that the methodology of choice is “ultimately a political choice about the nature and purpose of knowledge and science, of law and constitution, and of the complex reality within which they are set” (at 47). Realists and critical legal scholars have made this point before, and this critique can be found in our “neighboring disciplines,” too (at 2).3 Hoffman relates this point to CCL. Invoking Frankenberg, Hoffman raises several questions that I think we must seek answers to. For instance, “[i]s there one (modern) world, the complexity of which has simply not yet been mapped, or is modernity the representation of but one world among many and, if so, how do we approach these other worlds?” (at 52). Many of us grapple with this question as we inhabit the tensions that come alive at the intersection of academia, practice, material existence, and emotion (to name but a few). Zoran Oklopcic’s assessment of the act of comparison in the “world of constitutions” in his chapter “Comparing as (Re-)Imagining: Southern Perspective and the World of Constitutions” is an appropriate accompaniment to Hoffman’s chapter. Using “comparative constitutional inquiry” as his point of entry, Oklopcic offers a critical account of comparison and lays bare the ways in which the positionality of the scholar or, in his words, the “scopic regime” determines ways of doing scholarship and its outcome (at 97). He problematizes the ways in which location, situation, orientation, affirmation, aspiration, and anticipation of a CCL scholar impact the “work of comparison” (at 97). At the same time, Oklopcic provocatively points to the futility of falling back on a Global South perspective alone to resolve this dilemma. The question is, “whose voices are the partisans of Southern perspectives amplifying, modulating and translating—really?” (at 105). I read this as a question about the “Souths” of the South, and this is where the conceptual boundaries of this debate, however porous and intuitive, begin to collapse. I cannot but agree with Oklopcic’s observation that “[w]hat prefigures the character of our comparative constitutional inquiries are imaginings—of scenes of constitution-making, of one’s professional role in a scholarly community within a wider disciplinary archipelago, of global and local problems, of worthy and unworthy struggles, of lost causes and likely outcomes” (at 108). The other two chapters in this part of the book—Christine Schwobel-Patel’s chapter titled “Comparing as (Re-)Imagining: Southern Perspective and the World of Constitutions” and Jedidiah J Kroncke’s chapter titled “Legal Innovation as a Global Public Good: Remaking Comparative Law as Indigenization”—deal, respectively, specifically with an assessment of the geopolitics of knowledge, particularly in relation to global constitutionalism, and with indigenization and legal innovation in comparative law. What follows are the case-study/specific-issue chapters, three of which deal with transformative constitutionalism. Heinz Klug’s examination of the prospects for transformative constitutionalism, “Transformative Constitutionalism as a Model for Africa?,” is a sophisticated and honest account, speaking to the tension between what “is” and what “ought” to be. I read this intervention as a return to the account of transformative constitutionalism as imagined by Klare.4 I appreciate, in particular, the way in which Klug foregrounds the continuities of colonialism in his analysis. He notes that “any understanding of constitutional orders in Africa today requires a renewed appreciation of the character of the postcolonial state and specifically its genealogy in colonialism and decolonization” (at 151). The chapters on transformative constitutionalism by Diego Werneck Arguelhes, “Transformative Constitutionalism: A View from Brazil,” and Sujit Choudhry, “Postcolonial Proportionality: Johar, Transformative Constitutionalism, and Same-Sex Rights in India,” consider the concept in the context of Brazil and India. Arguelhes reminds us that a court-centric view of transformative constitutionalism is an incomplete view; “[transformative constitutionalism] can never be purely “court-centric,” and must be reconciled with separation of powers” (at 189). In contrast, Choudhry offers a court-centric analysis of transformative constitutionalism and judicial review of colonial legislation in India. He examines proportionality in judicial review in claiming that in India, the transformative promise depends to a significant degree on the court’s review (and rejection) of colonial legislation. The two chapters by David Bilchitz, “Socio-Economic Rights and Expanding Access to Justice in South Africa: What Can Be Done?,” and Roberto Gargarella, “Inequality and the Constitution: From Equality to Social Rights,” foreground the problem of economic inequality and social justice through the prism of socio-economic rights in South Africa and Latin America respectively. Focusing on the unique features of their contexts, they both point to the limits of a text and/or court-centric study of this problem and draw attention to the broader questions of institutional architecture and implementation. The riots reported from South Africa this year underline the pressing need to develop this line of inquiry. These chapters are a reminder that academic priorities can change drastically when “doing” scholarship from the Global South. In this way, scholarship from the Global South strengthens the relevance of the field globally.5 As the editors note, “…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” (at 3). The volume concludes with two chapters, “Same Bed, Different Dreams: Constitutionalism and Legality in Asian Hybrid Regimes” by Weitseng Chen and “The Challenge of Transforming Mexican Authoritarian Constitutionalism” by Roberto Niembro Ortega. For scholars studying authoritarian contexts, Chen’s claim that there is “[n]o strong causation between the nature of polity and the success of economy. What is more important is pragmatic policies,” is helpful in pushing back on the myths that surround the notion “strong-man” leadership in jurisdictions of the Global South, including in Sri Lanka (at 262). He further reminds us that the label “authoritarian” should not be the end of an intellectual inquiry, but rather the beginning (at 269). Ortega offers us a distinction between “constitutional authoritarianism” and “authoritarian constitutionalism” (at 276). In both, the goals of liberal constitutionalism fail, but in authoritarian constitutionalism it is practice under the constitution that is the cause, whereas in constitutional authoritarianism the constitution itself “allows and promotes those practices” (at 286). The volume under review is the latest in a growing body of scholarship that examines the concept of the Global South in CCL. The term itself is used frequently by CCL scholars, but few have taken on the difficult task of clarifying its meaning.6 In the same vein as Comaroff and Comaroff, and following in the intellectual tradition of the third-world approaches to international law (TWAIL), the authors use the term, not geographically, but to designate “a sensibility and perspective” (at 7).7 The Global South “does not primarily emphasize a North/South divide but rather highlights entanglements and uneven developments” (at 6). This view resonates with scholars who are aware of the inadequacies of dominant or favored approaches in the field, which concern themselves with an unofficial cannon or privilege an Euro-centric epistemological perspective. However, further probing suggests that even this approach can only yield limited results. Conceptually and even from a practice perspective, the “sensibility and perspective approach” may not clear the hurdle of stability and consistency. Concerns about the intellectual purchase of this approach notwithstanding, the claims made by the authors assume greater significance when considered in light of the scholarship on decoloniality and particularly in light of emerging calls for decolonizing legal methodology. The development of this scholarly agenda is evident in international law. Considering comparative law, Munshi, in her call to “decoloniz[e] and democratiz[e] legal thought,”8 observed that: Eurocentrism refers to the general habit of attributing authority to only certain forms of knowledge—what we might generally refer to as western rationality—while disregarding and disparaging others. . . Eurocentrism. . . tends to insulate itself from counter-knowledge, remains assured of its own truth, and naturalizes its own authority.9 Maldonaldo and Reigner note that “[d]ecolonization is thus not only a historical achievement but also an ongoing legal challenge and an unrealized epistemic opportunity for comparative constitutional law and theory.”10 How should comparative constitutional law scholars face up to this legal challenge and take advantage of this opportunity? The response of the editors to this question is threefold and includes: (i) epistemic reflexivity; (ii) methodological pluralism; and (iii) institutional diversification. The editors present epistemic reflexivity as recognition of pluralism in constitutional thought which would have the effect of decentering and provincializing Europe. Epistemic reflexivity about the presumptions about the universality of ideas emerging from Europe enables us to be mindful of the contingent nature of knowledge. Methodological pluralism requires “an enlightened functionalist approach,” a thick description, and interdisciplinarity in scholarship. Institutional diversification presents new ideas, including “slow comparison,” but also emphasizes collaboration where scholars who are not of the Global South see themselves as listeners, enablers, contributors, and translators. None of these suggestions are necessarily new.11 What is new is that these claims are being made in mainstream CCL scholarship, a field which, hitherto, has been limited in its relevance and value because of its methodological blind spots and ideological bias, among other things. This edited volume can be read as a further ground-clearing intellectual exercise. Despite any (valid) reservations one might have about the stability of the category of the Global South, this intervention has further established that the prevailing approaches to CCL are inadequate and require epistemic reflexivity. Having made this promising claim in its introduction, regrettably, in relation to two aspects, this volume falls short of its own standards. First, the case study chapters do not directly engage with the theoretical claims of the first five chapters. As a result, the analytical purchase of the “Southern turn” and the “double turn” is demonstrated only to a limited extent in the volume itself. Perhaps a concluding chapter may have filled this gap in the volume. Second, having called for a move beyond the usual suspects and for theorizing from the Global South, the volume, to a certain degree, reproduces the problem. The case studies cover the usual suspects of the “Global South”—India, South Africa, Brazil, and Mexico. If the Global South is a sensibility or a perspective, by what criteria can we determine how this sensibility and perspective can be brought into scholarship and who is qualified to do that? Engaging with this volume compels us to confront this question. How do we, scholars in this field, respond to this question will determine the extent to which we can realize the “epistemic opportunity” that the editors remind us of in this volume. The Global South and Comparative Constitutional Law may only be pointing to these and related questions while, to some extent, reproducing some of the same problems. However, the book has served the academic community well in ensuring that these issues remain on the agenda and that they continue to trouble settled ways of “doing scholarship.” This edited volume is another stage of the process of de-centering. The de-centering of theoretical and case-study interventions has in the recent past allowed us to raise questions related to gender, race, and methodology.12 The Global South and Comparative Constitutional Law will ensure that the question about the Global South will have its own de-centering effect. However, that too is a question that must eventually be de-centered if it becomes more of an obstacle than a facilitator of our collective truth-seeking. For instance, the question about the Global South may occlude questions about the “Souths” of the South and the transnational nature of constitutional discourse, or it may obstruct the recognition of the Global South in the Global North. This volume raises several questions about the scholar. What does it mean to work with and from the Global South? Who is from and who is without and, most importantly, who decides? A related, and perhaps more difficult, question is about scholarship, practice, and material conditions. How do we ensure that an academic located in the Global South (however understood), constantly forced to deal with realities of her material existence and the need to respond to constitutional developments on the ground, is included when theorizing with and from the Global South? Those who have sought to include scholars from the Global South in their scholarly projects, as equal partners, are familiar with this problem. The difficulty in answering the two questions about the Global South as a category—who decides and how—has led me to consider alternative approaches to answering this question. In this volume, Oklopcic asks, “what is the anticipated productivity of gesturing to(wards) the ‘South,’ beyond its function as a rallying point for lending dignity to a new form of scholarly antagonism?” (at 109). At the level of methodology and theory, would more honest, robust, and modest comparison be the simple answer to this question? Frankenberg’s idea of a “layered narrative” in comparison offers a useful starting point into such an approach. Frankenberg argues that beginning with the constitutional text, the scholar must read it as “constructive plans” and as “imaginations of reality.” Such an approach would enable the scholar to “tackle the problem of how to present in one’s scholarly work the legal representations of local conflicts, contexts and visions.”13 In Comparative Constitutional Studies: Between Magic and Deceit, he offers a strong critique of “the fallacies of seeking similarity in comparative matters.”14 He notes that comparatists “are not merely fact-hunters but interpreters of culture and cultural artefacts.”15 Importantly, he points out that comparison is approached from “the concrete perspective of one’s own (epistemological) order.”16 Being conscious of our own epistemological order might, and in fact ought to, enable us to also be more aware of the other sticky problem in CCL: the assumptions that we make about liberal constitutionalism, about its origins and its applicability. As Roux points out, the promotion of liberal constitutionalism in the Global South can and in some cases ought to coexist with efforts to capture the varieties of constitutionalism in those contexts. It is both inaccurate and counterproductive to present these efforts as mutually exclusive.17 Scholarship highlights the ways in which such assumptions work as a block to theorizing on the global diversity in constitutional thought, in terms of regional, ideology-based, religion-based approaches or simply theorizing from the world of practice. Consider two examples from my own context. First, scholarship on Buddhist constitutionalism offers a useful counterpoint to work that derives from liberal constitutionalism or even transformative constitutionalism. In jurisdictions such as Bhutan, Sri Lanka, and Thailand, the lens of Buddhist constitutionalism allows scholars to theorize about constitutional developments from the ground up. Second, militarization has been or is fast becoming a central feature of constitutional thought and developments. As with Ortega’s point about authoritarian constitutionalism, it seems to me that the study of militarization cannot be “the end of an intellectual exercise” but rather the beginning. From a lateral perspective, this volume can be identified with critical interventions in other disciplines, seeking to make a similar point. The work of Sujit Sivasunderam and Mahmood Mamdani are but two examples.18 Sivasunderam offers an account of British Imperial history from an oceanic and environmental perspective as a much-needed corrective to the dominant land-based and Atlantic historical perspective. Mamdani offers a structural history of racial and tribal identities in colonized societies, drawing attention to the internal political boundaries created by colonization. Both these recent interventions seek to theorize from the Global South, the margins, or the rest of the world, with a sensibility and perspective similar to those of the authors of this volume. Whether they are using new methods or offering a new methodological perspective may be a debate that cannot be settled at the moment. However, neither the scholar nor the practitioner (to the extent that they exist separately) can deny the generative potential and promise of such scholarship. I write this book review at a time when the Taliban has recaptured Kabul, causing waves of despair and horror globally. The military coup in Myanmar, in February 2021, led to similar reactions. While acknowledging that a complex interplay of several factors led to these tragic outcomes, I think it is fair to say that constitution-making and constitutional reform figured significantly in both jurisdictions as a means of addressing governance issues. In identifying and reflecting on “lessons learned” from these developments, I would argue that The Global South and Comparative Constitutional Law provides both a guide (on how to theorize, with whom, and from where) and a provocation (on perspective and methodology). This volume is by no means an intervention that seeks to settle a debate (even for this moment) but rather to generate further debate and to encourage and empower scholarship that takes the Global South on its own terms. For that, the authors must be commended. I thank Theunis Roux and Arun Thiruvengadam for feedback on a draft of this review. Footnotes See, e.g., Theunis Roux, The Global South and Liberal Constitutionalism: Incommensurable Opposites?, AusPub L. Blog (July 2, 2021), www.auspublaw.org/2021/07/the-global-south-and-liberal-constitutionalism-incommensurable-opposites/. Joseph Weiler, On My Way Out—Advice to Young Scholars III: Edited Book, EJIL: Talk! (Oct. 5, 2016), https://www.ejiltalk.org/on-my-way-out-advice-to-young-scholars-iii-edited-book/. See, e.g., Walter D. Mignolo & Catherine E. Walsh, On Decoloniality: Concepts, Analytics, Praxis (2018). Karl E. Klare, Legal Culture and Transformative Constitutionalism, 14 S. Afr. J. on Hum. Rts. 150 (1998). Consider the issue of social justice and inequality in the United Kingdom as highlighted in the report of the Special Rapporteur: Hum. Rts. Council, Visit to the United Kingdom of Great Britain and Northern Ireland: Report of the Special Rapporteur on Extreme Poverty and Human Rights on His Visit to the United Kingdom, A/HRC/41/39/Add.1 (April 23, 2019), https://daccess-ods.un.org/tmp/1044108.71863365.html. Tobias Berger, The “Global South” as a Relational Category: Global Hierarchies in the Production of Law and Legal Pluralism, 42 (9) Third World Q. 2001 (2021), https://www.tandfonline.com/doi/abs/10.1080/01436597.2020.1827948?journalCode=ctwq20; Zoran Oklopcic, The South of Western Constitutionalism: A Map Ahead of a Journey, 37 Third World Q. 2080 (2016), https://www.tandfonline.com/doi/abs/10.1080/01436597.2016.1205441; Daniel Bonilla Maldonado, Introduction, in Constitutionalism of the Global South: The Activist Tribunals of India, South Africa, and Colombia 1 (Daniel Maldonado ed., 2013); Ran Hirschl, Comparative Matters: The Renaissance of Comparative Constitutional Law 1 (2014). Jean Comaroff & John L. Comaroff, Theory From the South, or How Euro-America is Evolving Toward Africa 7 (2012). Sherally Munshi, Comparative Law and Decolonizing Critique, 65 Am. J. Comp. L. 207, 235 (2017). Id. at 226. Daniel Bonilla Maldonado & Michael Riegner, Decolonization, in Max Planck Encyclopedia of Comparative Constitutional Law, https://oxcon.ouplaw.com/view/10.1093/law-mpeccol/law-mpeccol-e43 (Rainer Grote, Frauke Lachemann, & Rüdiger Wolfrum eds., 2020). See, e.g., M. Sornarajah, On Fighting for Global Justice: The Role of a Third World International Lawyer, 37 Third World Q. 1972 (2016). See, e.g., Special Section: Reflections on Gender and Public Law: Eight Views, 18 Int’l J. Const. L. 429–475 (2020). Gunther Frankenberg, Comparative Constitutional Studies: Between Magic and Deceit 91 (2018). Id. at 67. Id. at 74. Id. at 77. Roux, supra note 1. Sujit Sivasunderam, Waves Across the South (2020); Mahmood Mamdani, Neither Settler nor Native: The Making and Unmaking of Permanent Minorities (2020). © The Author(s) 2022. Oxford University Press and New York University School of Law. All rights reserved. For permissions, please e-mail: [email protected] This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model) © The Author(s) 2022. Oxford University Press and New York University School of Law. All rights reserved. For permissions, please e-mail: [email protected] http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png International Journal of Constitutional Law Oxford University Press

Dinesha Samararatne, Review of Philipp Dann, Michael Riegner, and Maxim Bonnemann, eds., The Global South and Comparative Constitutional Law

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© The Author(s) 2022. Oxford University Press and New York University School of Law. All rights reserved. For permissions, please e-mail: [email protected]
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Abstract

Refreshing, provocative, and unsettling are the words that come to mind when reading this edited volume. The volume confronts several blind spots in comparative constitutional law (CCL) and has the effect of disturbing some established ideas in the field.1 It has the potential to leave the engaged and sympathetic reader with more questions than answers. In this review, I consider the provocations offered in this book and explain why I think they amount to a turning point in our field. First, I introduce some of the key ideas presented. Second, I consider the intellectual purchase of these ideas. I conclude by pointing to the ways in which this volume resonates with similar efforts in other disciplines. The twelve chapters in this collection can be grouped into four categories. The first, chapters 1–5, are theoretical. The introduction calls for a paradigm shift in how the Global South in CCL is to be interpreted and considers its implications for theory and scholarship. Chapters 2, 3, 4, and 5 interrogate specific ideas which, together, constitute this call for a paradigm shift. The second set of interventions (chapters 6–9) examines transformative constitutionalism in South Africa, India, and Brazil to identify lessons learnt. A consideration of inequality and constitutionalism constitutes the third category (chapters 9–10), followed by the fourth and final category comprising two chapters that examine authoritarianism (chapters 11–12). The wide range of topics covered in this edited collection offers something of interest to most CCL scholars. For those who are interested in the specific jurisdictions, there are several case-studies (South Africa, Brazil, India, and Mexico); for those who are curious about specific conceptual puzzles, there are theoretical chapters; and the introduction for those who have questions about the ongoing debate about the “Global South” in the field. Presented in this way, the volume engages the converted as well as the skeptic in the debate on the relevance of the Global South in CCL. Perhaps most importantly, the book prompts a range of questions to which the reader may not necessarily find all answers in the volume itself. It therefore provokes further debates, rather than settling them, even temporarily. Philipp Dann, Michael Riegner, and Maxim Bonnemann’s collective call for the “Southern turn” in CCL has been the tagline by which this volume has come to be known. To me this call is a convincing one and long overdue. Their typology of CCL “for,” “with,” and “from” the Global South is already shaping academic debate (at 11–13). Their insight is not only accurate but also recognizes the anxieties long felt by CCL scholars whose academic interests are vested in the Global South. The rich analysis offered in the introduction provides all scholars (believers, agnostics, and deniers) with a clear entry point into the debate. This introduction easily passes the “Weiler test” for an introduction to an edited volume, that is to say “a major contribution in its own right.”2 Four theoretical chapters follow. Here, I consider two of them in some detail. Florian Hoffman’s chapter, “Facing South: On the Significance of An/Other Modernity in Comparative Constitutional Law,” inquires into whether “facing south” will allow the scholar to find the “other” in CCL (at 43). Hoffman’s frank assessment is that it will not. He rightly notes that “Souths” and “Norths” are “transnationally interconnected and form a patchwork of stratified constituencies that cross cut—and irritate—both national politics and international governance” (at 46). In developing this line of inquiry, he brings us back to the view that the methodology of choice is “ultimately a political choice about the nature and purpose of knowledge and science, of law and constitution, and of the complex reality within which they are set” (at 47). Realists and critical legal scholars have made this point before, and this critique can be found in our “neighboring disciplines,” too (at 2).3 Hoffman relates this point to CCL. Invoking Frankenberg, Hoffman raises several questions that I think we must seek answers to. For instance, “[i]s there one (modern) world, the complexity of which has simply not yet been mapped, or is modernity the representation of but one world among many and, if so, how do we approach these other worlds?” (at 52). Many of us grapple with this question as we inhabit the tensions that come alive at the intersection of academia, practice, material existence, and emotion (to name but a few). Zoran Oklopcic’s assessment of the act of comparison in the “world of constitutions” in his chapter “Comparing as (Re-)Imagining: Southern Perspective and the World of Constitutions” is an appropriate accompaniment to Hoffman’s chapter. Using “comparative constitutional inquiry” as his point of entry, Oklopcic offers a critical account of comparison and lays bare the ways in which the positionality of the scholar or, in his words, the “scopic regime” determines ways of doing scholarship and its outcome (at 97). He problematizes the ways in which location, situation, orientation, affirmation, aspiration, and anticipation of a CCL scholar impact the “work of comparison” (at 97). At the same time, Oklopcic provocatively points to the futility of falling back on a Global South perspective alone to resolve this dilemma. The question is, “whose voices are the partisans of Southern perspectives amplifying, modulating and translating—really?” (at 105). I read this as a question about the “Souths” of the South, and this is where the conceptual boundaries of this debate, however porous and intuitive, begin to collapse. I cannot but agree with Oklopcic’s observation that “[w]hat prefigures the character of our comparative constitutional inquiries are imaginings—of scenes of constitution-making, of one’s professional role in a scholarly community within a wider disciplinary archipelago, of global and local problems, of worthy and unworthy struggles, of lost causes and likely outcomes” (at 108). The other two chapters in this part of the book—Christine Schwobel-Patel’s chapter titled “Comparing as (Re-)Imagining: Southern Perspective and the World of Constitutions” and Jedidiah J Kroncke’s chapter titled “Legal Innovation as a Global Public Good: Remaking Comparative Law as Indigenization”—deal, respectively, specifically with an assessment of the geopolitics of knowledge, particularly in relation to global constitutionalism, and with indigenization and legal innovation in comparative law. What follows are the case-study/specific-issue chapters, three of which deal with transformative constitutionalism. Heinz Klug’s examination of the prospects for transformative constitutionalism, “Transformative Constitutionalism as a Model for Africa?,” is a sophisticated and honest account, speaking to the tension between what “is” and what “ought” to be. I read this intervention as a return to the account of transformative constitutionalism as imagined by Klare.4 I appreciate, in particular, the way in which Klug foregrounds the continuities of colonialism in his analysis. He notes that “any understanding of constitutional orders in Africa today requires a renewed appreciation of the character of the postcolonial state and specifically its genealogy in colonialism and decolonization” (at 151). The chapters on transformative constitutionalism by Diego Werneck Arguelhes, “Transformative Constitutionalism: A View from Brazil,” and Sujit Choudhry, “Postcolonial Proportionality: Johar, Transformative Constitutionalism, and Same-Sex Rights in India,” consider the concept in the context of Brazil and India. Arguelhes reminds us that a court-centric view of transformative constitutionalism is an incomplete view; “[transformative constitutionalism] can never be purely “court-centric,” and must be reconciled with separation of powers” (at 189). In contrast, Choudhry offers a court-centric analysis of transformative constitutionalism and judicial review of colonial legislation in India. He examines proportionality in judicial review in claiming that in India, the transformative promise depends to a significant degree on the court’s review (and rejection) of colonial legislation. The two chapters by David Bilchitz, “Socio-Economic Rights and Expanding Access to Justice in South Africa: What Can Be Done?,” and Roberto Gargarella, “Inequality and the Constitution: From Equality to Social Rights,” foreground the problem of economic inequality and social justice through the prism of socio-economic rights in South Africa and Latin America respectively. Focusing on the unique features of their contexts, they both point to the limits of a text and/or court-centric study of this problem and draw attention to the broader questions of institutional architecture and implementation. The riots reported from South Africa this year underline the pressing need to develop this line of inquiry. These chapters are a reminder that academic priorities can change drastically when “doing” scholarship from the Global South. In this way, scholarship from the Global South strengthens the relevance of the field globally.5 As the editors note, “…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” (at 3). The volume concludes with two chapters, “Same Bed, Different Dreams: Constitutionalism and Legality in Asian Hybrid Regimes” by Weitseng Chen and “The Challenge of Transforming Mexican Authoritarian Constitutionalism” by Roberto Niembro Ortega. For scholars studying authoritarian contexts, Chen’s claim that there is “[n]o strong causation between the nature of polity and the success of economy. What is more important is pragmatic policies,” is helpful in pushing back on the myths that surround the notion “strong-man” leadership in jurisdictions of the Global South, including in Sri Lanka (at 262). He further reminds us that the label “authoritarian” should not be the end of an intellectual inquiry, but rather the beginning (at 269). Ortega offers us a distinction between “constitutional authoritarianism” and “authoritarian constitutionalism” (at 276). In both, the goals of liberal constitutionalism fail, but in authoritarian constitutionalism it is practice under the constitution that is the cause, whereas in constitutional authoritarianism the constitution itself “allows and promotes those practices” (at 286). The volume under review is the latest in a growing body of scholarship that examines the concept of the Global South in CCL. The term itself is used frequently by CCL scholars, but few have taken on the difficult task of clarifying its meaning.6 In the same vein as Comaroff and Comaroff, and following in the intellectual tradition of the third-world approaches to international law (TWAIL), the authors use the term, not geographically, but to designate “a sensibility and perspective” (at 7).7 The Global South “does not primarily emphasize a North/South divide but rather highlights entanglements and uneven developments” (at 6). This view resonates with scholars who are aware of the inadequacies of dominant or favored approaches in the field, which concern themselves with an unofficial cannon or privilege an Euro-centric epistemological perspective. However, further probing suggests that even this approach can only yield limited results. Conceptually and even from a practice perspective, the “sensibility and perspective approach” may not clear the hurdle of stability and consistency. Concerns about the intellectual purchase of this approach notwithstanding, the claims made by the authors assume greater significance when considered in light of the scholarship on decoloniality and particularly in light of emerging calls for decolonizing legal methodology. The development of this scholarly agenda is evident in international law. Considering comparative law, Munshi, in her call to “decoloniz[e] and democratiz[e] legal thought,”8 observed that: Eurocentrism refers to the general habit of attributing authority to only certain forms of knowledge—what we might generally refer to as western rationality—while disregarding and disparaging others. . . Eurocentrism. . . tends to insulate itself from counter-knowledge, remains assured of its own truth, and naturalizes its own authority.9 Maldonaldo and Reigner note that “[d]ecolonization is thus not only a historical achievement but also an ongoing legal challenge and an unrealized epistemic opportunity for comparative constitutional law and theory.”10 How should comparative constitutional law scholars face up to this legal challenge and take advantage of this opportunity? The response of the editors to this question is threefold and includes: (i) epistemic reflexivity; (ii) methodological pluralism; and (iii) institutional diversification. The editors present epistemic reflexivity as recognition of pluralism in constitutional thought which would have the effect of decentering and provincializing Europe. Epistemic reflexivity about the presumptions about the universality of ideas emerging from Europe enables us to be mindful of the contingent nature of knowledge. Methodological pluralism requires “an enlightened functionalist approach,” a thick description, and interdisciplinarity in scholarship. Institutional diversification presents new ideas, including “slow comparison,” but also emphasizes collaboration where scholars who are not of the Global South see themselves as listeners, enablers, contributors, and translators. None of these suggestions are necessarily new.11 What is new is that these claims are being made in mainstream CCL scholarship, a field which, hitherto, has been limited in its relevance and value because of its methodological blind spots and ideological bias, among other things. This edited volume can be read as a further ground-clearing intellectual exercise. Despite any (valid) reservations one might have about the stability of the category of the Global South, this intervention has further established that the prevailing approaches to CCL are inadequate and require epistemic reflexivity. Having made this promising claim in its introduction, regrettably, in relation to two aspects, this volume falls short of its own standards. First, the case study chapters do not directly engage with the theoretical claims of the first five chapters. As a result, the analytical purchase of the “Southern turn” and the “double turn” is demonstrated only to a limited extent in the volume itself. Perhaps a concluding chapter may have filled this gap in the volume. Second, having called for a move beyond the usual suspects and for theorizing from the Global South, the volume, to a certain degree, reproduces the problem. The case studies cover the usual suspects of the “Global South”—India, South Africa, Brazil, and Mexico. If the Global South is a sensibility or a perspective, by what criteria can we determine how this sensibility and perspective can be brought into scholarship and who is qualified to do that? Engaging with this volume compels us to confront this question. How do we, scholars in this field, respond to this question will determine the extent to which we can realize the “epistemic opportunity” that the editors remind us of in this volume. The Global South and Comparative Constitutional Law may only be pointing to these and related questions while, to some extent, reproducing some of the same problems. However, the book has served the academic community well in ensuring that these issues remain on the agenda and that they continue to trouble settled ways of “doing scholarship.” This edited volume is another stage of the process of de-centering. The de-centering of theoretical and case-study interventions has in the recent past allowed us to raise questions related to gender, race, and methodology.12 The Global South and Comparative Constitutional Law will ensure that the question about the Global South will have its own de-centering effect. However, that too is a question that must eventually be de-centered if it becomes more of an obstacle than a facilitator of our collective truth-seeking. For instance, the question about the Global South may occlude questions about the “Souths” of the South and the transnational nature of constitutional discourse, or it may obstruct the recognition of the Global South in the Global North. This volume raises several questions about the scholar. What does it mean to work with and from the Global South? Who is from and who is without and, most importantly, who decides? A related, and perhaps more difficult, question is about scholarship, practice, and material conditions. How do we ensure that an academic located in the Global South (however understood), constantly forced to deal with realities of her material existence and the need to respond to constitutional developments on the ground, is included when theorizing with and from the Global South? Those who have sought to include scholars from the Global South in their scholarly projects, as equal partners, are familiar with this problem. The difficulty in answering the two questions about the Global South as a category—who decides and how—has led me to consider alternative approaches to answering this question. In this volume, Oklopcic asks, “what is the anticipated productivity of gesturing to(wards) the ‘South,’ beyond its function as a rallying point for lending dignity to a new form of scholarly antagonism?” (at 109). At the level of methodology and theory, would more honest, robust, and modest comparison be the simple answer to this question? Frankenberg’s idea of a “layered narrative” in comparison offers a useful starting point into such an approach. Frankenberg argues that beginning with the constitutional text, the scholar must read it as “constructive plans” and as “imaginations of reality.” Such an approach would enable the scholar to “tackle the problem of how to present in one’s scholarly work the legal representations of local conflicts, contexts and visions.”13 In Comparative Constitutional Studies: Between Magic and Deceit, he offers a strong critique of “the fallacies of seeking similarity in comparative matters.”14 He notes that comparatists “are not merely fact-hunters but interpreters of culture and cultural artefacts.”15 Importantly, he points out that comparison is approached from “the concrete perspective of one’s own (epistemological) order.”16 Being conscious of our own epistemological order might, and in fact ought to, enable us to also be more aware of the other sticky problem in CCL: the assumptions that we make about liberal constitutionalism, about its origins and its applicability. As Roux points out, the promotion of liberal constitutionalism in the Global South can and in some cases ought to coexist with efforts to capture the varieties of constitutionalism in those contexts. It is both inaccurate and counterproductive to present these efforts as mutually exclusive.17 Scholarship highlights the ways in which such assumptions work as a block to theorizing on the global diversity in constitutional thought, in terms of regional, ideology-based, religion-based approaches or simply theorizing from the world of practice. Consider two examples from my own context. First, scholarship on Buddhist constitutionalism offers a useful counterpoint to work that derives from liberal constitutionalism or even transformative constitutionalism. In jurisdictions such as Bhutan, Sri Lanka, and Thailand, the lens of Buddhist constitutionalism allows scholars to theorize about constitutional developments from the ground up. Second, militarization has been or is fast becoming a central feature of constitutional thought and developments. As with Ortega’s point about authoritarian constitutionalism, it seems to me that the study of militarization cannot be “the end of an intellectual exercise” but rather the beginning. From a lateral perspective, this volume can be identified with critical interventions in other disciplines, seeking to make a similar point. The work of Sujit Sivasunderam and Mahmood Mamdani are but two examples.18 Sivasunderam offers an account of British Imperial history from an oceanic and environmental perspective as a much-needed corrective to the dominant land-based and Atlantic historical perspective. Mamdani offers a structural history of racial and tribal identities in colonized societies, drawing attention to the internal political boundaries created by colonization. Both these recent interventions seek to theorize from the Global South, the margins, or the rest of the world, with a sensibility and perspective similar to those of the authors of this volume. Whether they are using new methods or offering a new methodological perspective may be a debate that cannot be settled at the moment. However, neither the scholar nor the practitioner (to the extent that they exist separately) can deny the generative potential and promise of such scholarship. I write this book review at a time when the Taliban has recaptured Kabul, causing waves of despair and horror globally. The military coup in Myanmar, in February 2021, led to similar reactions. While acknowledging that a complex interplay of several factors led to these tragic outcomes, I think it is fair to say that constitution-making and constitutional reform figured significantly in both jurisdictions as a means of addressing governance issues. In identifying and reflecting on “lessons learned” from these developments, I would argue that The Global South and Comparative Constitutional Law provides both a guide (on how to theorize, with whom, and from where) and a provocation (on perspective and methodology). This volume is by no means an intervention that seeks to settle a debate (even for this moment) but rather to generate further debate and to encourage and empower scholarship that takes the Global South on its own terms. For that, the authors must be commended. I thank Theunis Roux and Arun Thiruvengadam for feedback on a draft of this review. Footnotes See, e.g., Theunis Roux, The Global South and Liberal Constitutionalism: Incommensurable Opposites?, AusPub L. Blog (July 2, 2021), www.auspublaw.org/2021/07/the-global-south-and-liberal-constitutionalism-incommensurable-opposites/. Joseph Weiler, On My Way Out—Advice to Young Scholars III: Edited Book, EJIL: Talk! (Oct. 5, 2016), https://www.ejiltalk.org/on-my-way-out-advice-to-young-scholars-iii-edited-book/. See, e.g., Walter D. Mignolo & Catherine E. Walsh, On Decoloniality: Concepts, Analytics, Praxis (2018). Karl E. Klare, Legal Culture and Transformative Constitutionalism, 14 S. Afr. J. on Hum. Rts. 150 (1998). Consider the issue of social justice and inequality in the United Kingdom as highlighted in the report of the Special Rapporteur: Hum. Rts. Council, Visit to the United Kingdom of Great Britain and Northern Ireland: Report of the Special Rapporteur on Extreme Poverty and Human Rights on His Visit to the United Kingdom, A/HRC/41/39/Add.1 (April 23, 2019), https://daccess-ods.un.org/tmp/1044108.71863365.html. Tobias Berger, The “Global South” as a Relational Category: Global Hierarchies in the Production of Law and Legal Pluralism, 42 (9) Third World Q. 2001 (2021), https://www.tandfonline.com/doi/abs/10.1080/01436597.2020.1827948?journalCode=ctwq20; Zoran Oklopcic, The South of Western Constitutionalism: A Map Ahead of a Journey, 37 Third World Q. 2080 (2016), https://www.tandfonline.com/doi/abs/10.1080/01436597.2016.1205441; Daniel Bonilla Maldonado, Introduction, in Constitutionalism of the Global South: The Activist Tribunals of India, South Africa, and Colombia 1 (Daniel Maldonado ed., 2013); Ran Hirschl, Comparative Matters: The Renaissance of Comparative Constitutional Law 1 (2014). Jean Comaroff & John L. Comaroff, Theory From the South, or How Euro-America is Evolving Toward Africa 7 (2012). Sherally Munshi, Comparative Law and Decolonizing Critique, 65 Am. J. Comp. L. 207, 235 (2017). Id. at 226. Daniel Bonilla Maldonado & Michael Riegner, Decolonization, in Max Planck Encyclopedia of Comparative Constitutional Law, https://oxcon.ouplaw.com/view/10.1093/law-mpeccol/law-mpeccol-e43 (Rainer Grote, Frauke Lachemann, & Rüdiger Wolfrum eds., 2020). See, e.g., M. Sornarajah, On Fighting for Global Justice: The Role of a Third World International Lawyer, 37 Third World Q. 1972 (2016). See, e.g., Special Section: Reflections on Gender and Public Law: Eight Views, 18 Int’l J. Const. L. 429–475 (2020). Gunther Frankenberg, Comparative Constitutional Studies: Between Magic and Deceit 91 (2018). Id. at 67. Id. at 74. Id. at 77. Roux, supra note 1. Sujit Sivasunderam, Waves Across the South (2020); Mahmood Mamdani, Neither Settler nor Native: The Making and Unmaking of Permanent Minorities (2020). © The Author(s) 2022. Oxford University Press and New York University School of Law. All rights reserved. For permissions, please e-mail: [email protected] This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model) © The Author(s) 2022. Oxford University Press and New York University School of Law. All rights reserved. For permissions, please e-mail: [email protected]

Journal

International Journal of Constitutional Law – Oxford University Press

Published: Jun 16, 2022

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