Decolonizing Comparative Constitutional Law : Taking Alternative Constitutional Modernities Seriously

Like “philosophy”, constitutional law is a disguised form of area studies that should more adequately be called “Western” or “Euroamerican” constitutional law. Theorizing from the South means theorising alternatives to Western liberal constitutionalism in their own, normative, terms, so as to apprehend Islamic, Buddhist, communitarian or transformative constitutionalisms as equally “valid” types of modern constitutional ordering. This paper calls on comparative law scholars to reflect on alternative constitutional modernities. It is organized in three parts : it first sketches a brief overview of the history of comparative law as a discipline, then critically examines the ongoing deconstruction of “legal orientalism” and finally suggests three areas in which “Global South” modes of constitutional ordering might well offer images of the possible futures of Western constitutionalism.

“Racialisation” and “Ethnicization” of the Law through Merit

It is well-known that some citizenships are better than others in terms of the rights and protection they confer, and generate important inequalities. It is also well-documented that, depending on their cultural and socioeconomic background, non-citizens tend to be treated differently. Moreover, among citizens of the same country, inequalities persist. Based on several examples in Europe and in the US, this paper argues that a lot of these inequalities are rooted in a “racialisation” or “ethnicization” of the law and policies through exclusive or inclusive factors based on merit. Firstly, it will be argued that there is a strong “racialisation” or “ethnicization” of immigration and citizenship policies, linked to an idea of merit. Secondly, beyond the sphere of citizenship and immigration, it will be shown that underprivileged citizens – including racial and ethnic minorities – are marginalized through the exclusion of social rights based on an idea of merit.

RECONSTITUTING THE PUBLIC/PRIVATE DIVIDE IN SOUTH AFRICAN ANTI-DISCRIMINATION LAW

The public/private divide is largely sustained in anti-discrimination law. Most jurisdictions require that organs of state do not discriminate, but do not extend that duty to non-state actors, save for particular kinds of private persons – typically, those operating in particular spheres of activity. In these jurisdictions, a variant test of publicness operates as a threshold determination of whether an entity bears anti-discrimination duties. Conversely, in South Africa the class of anti-discrimination duty-bearers is wider – in principle, all persons are duty-bearers. What determines whether an anti-discrimination duty is ultimately imposed on a private person is not publicness, but instead a contextually sensitive balancing enquiry at the justification leg. This suggests an attenuated approach to the public/private divide in South African anti-discrimination law. In my paper, I will chart the varying approaches to the public/private divide that emerges from recent jurisprudence.

POLICING INTERFAITH MARRIAGES: CONSTITUTIONAL INFIDELITY OF THE LOVE JIHAD ORDINANCE

The Indian Constitution guarantees that individuals have the freedom to choose their partners free from state interference. However, the Uttar Pradesh Vidhi Virudh Dharma Samparivartan Pratishedh Adhyadesh, 2020 prohibits religious conversion to the extent that it assumes all conversions are illegal, which may have a deleterious impact on inter-faith marriages involving consenting adults. This essay argues that the provisions of the Uttar Pradesh Ordinance forbidding religious conversion are vague, imprecise, and incommensurate for addressing forceful or unlawful conversion for marriages, do not demonstrate any reasonable relation to the object of the legislation, and are constitutionally repugnant. It concludes that by conferring police powers on state agencies to intervene in interfaith marriages, the Uttar Pradesh Ordinance erodes citizens’ freedom to choose a partner, individual autonomy, privacy, and personal liberty enshrined under the Constitution.