How do domestic courts in the Interamerican and the European Human Rights systems position themselves vis-à-vis their international counterparts? While courts in Latin America are more open towards the IACtHR than their European counterparts, which reflects the “estatalidad abierta” (“open statehood”) characterizing many constitutions on the continent and the more hierarchic approach of the IACtHR, in Europe most domestic courts are also willing to follow the ECtHR, even though in more indirect and limited ways. Yet, in both systems tensions seem to be on the rise, with courts on both sides of the Atlantic undertaking an increased constitutional control of the human rights judgments. It will be argued that even though it would be too simplistic to dismiss these cases as instances of “judicial nationalism”, some cases do indicate a certain dualist shift and a (problematic) turn towards a more inward-looking position little suited to cope with today’s plural legal reality.
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.
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.
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 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, pointing the way towards a new 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 across the North-South divide. 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.