This paper argues for and conceptualizes a “Southern turn” in comparative constitutional law. Drawing on an edited volume in print with OUP, the paper makes three arguments: The first is that the “Global South” has already become a term used productively in various disciplines and in legal scholarship, even though in very different and sometimes undertheorized ways. Secondly, it argues that the ‘Global South’ is a useful concept to capture and understand a constitutional experience that is distinct from, and at the same time deeply entangled with, constitutionalism in the Global North. Thirdly, it contends that the Southern turn implies a specific epistemic, methodological and institutional sensitivity that has implications for comparative constitutional scholarship as a whole. Epistemic reflexivity, methodological pluralism as well as institutional diversification, collaboration and “slow comparison” point the way towards an understanding of the discipline as “world comparative law”.
This paper presents an analytical framework for a larger research project which seeks to map contemporary varieties of constitutionalism and to assess contestations of, and alternatives to, liberal constitutionalism in Germany, Brazil and the respective regional contexts. It first describes the contours of a comparative typology that helps categorize constitutional orders along multiple dimensions, including the type of political constitutionalism, economic constitutionalism and constitutional aspects of open statehood and international integration. In a second step, the paper discusses the role of normative protagonists of liberal constitutionalism and its alternatives and then illustrates this framework with regard to selected contestations of liberal constitutionalism, analysing which normative alternatives are advanced and whether past and present contestations result(ed) in an alternative regime, or in the adaptation and transformation of liberal constitutionalism.
The paper intends to describe and interpret the peculiar ways by which Bolsonaro's government has been challenging the tenets of constitutionalist rule of law in Brazil. It argues that formal legal change has been less relevant for the ongoing process of autocratization. Bolsonaro's style combines at least four tactics: voicing a populist rhetoric that stimulates violation of the law and promises enforcement-leniency for loyalists; gutting the resources of accountability institutions and threatening law enforcers; breaking with the conventions that regulate appointment and tenure stability of accountability institutions; overenacting decrees to flood the judiciary, reduce its political capital and produce legality fatigue. Although one can claim that Bolsonaro government also builds upon some tools of the autocrat's playbook, it mainly exploits informal ways of breaking with rule of law principles.
South Africa’s Parliament is currently considering an amendment to the property clause in that country’s celebrated 1996 Constitution. The amendment would provide for the payment of ‘nil compensation’ in certain circumstances where land is expropriated for land reform. The broader significance of this amendment is that it is the first real sign that the constitutional-populist tide sweeping the globe has reached South Africa. What emerges from the rise of the explicitly left-wing populist Economic Freedom Fighters and a “Radical Economic Transformation” faction within the ANC is a kind of constitutional populism that shares some of the same features as the instances of this phenomenon in North America and Europe, but also displays differences. Examination of the South African case thus provides an opportunity for reflection on the modalities of constitutional populism in the Global South as opposed to the Global North.