Global Varieties of Constitutionalism and Contestations of Liberalism: How do Theunis Roux’s Grand Narratives on India and South Africa fit in?

Michael Riegner

Assistant Professor of Public International Law and International Administrative Law in the Faculty of Economics, Law and Social Sciences at the University of Erfurt

In 2016, Mark Tushnet called for “a richer taxonomy of varieties of constitutionalism” that would “unsettle the view that liberal constitutionalism simply is constitutionalism, and that all other varieties are defective”. Renewing earlier attempts at typologising constitutional systems, Tushnet’s call came on the back of a wave of new literature discussing other varieties beyond liberal constitutionalism, ranging from “social” and “transformative” to “illiberal” or “authoritarian”. The constitutional experiences of postcolonial countries in the Global South have further pluralised the constitutional canon, and transformative constitutionalism, in particular, has been hailed as a Southern counter-concept to “Northern” liberal constitutionalism. At the same time, liberal constitutionalism has met with intensifying challenges, ranging from increasing inequalities and postcolonial critiques to resurging right-wing populism and geopolitical confrontations with authoritarian regimes.

At this important crossroads for comparative constitutionalism, Theunis Roux has provided us with a wide-ranging and thought-provoking account of debates on liberal constitutionalism and its critiques in two jurisdictions often treated as representatives of “the Global South”, namely India and South Africa. In his “World View” article, the first of its kind in our World Comparative Law journal, Roux contrasts two grand narratives of constitutional transition: while the liberal-progressive narrative sees the Indian and South African Constitutions as a successful adaptation of liberal constitutionalism to the circumstances of the Global South, the culturalist-decolonial narrative rejects them as perpetuating Western colonial suppression of indigenous lifeways.

In this blog post, I would like to broaden the discussion beyond India and South Africa and ask how Roux’s account fits into the global debate on the varieties of constitutionalism and contestations of liberalism. This “global” perspective is necessarily shaped by my own positionality as a German scholar of comparative constitutional law, but also by comparative debates with scholars from the Global South, and especially from Latin America. More specifically, my comments draw on the framework and findings of our research project “Varieties of Constitutionalism” (“VACON”), a longer-term research collaboration with Brazilian colleagues in which we compared contestations of, and alternatives to, liberal constitutionalism in Germany, Brazil and their respective regional contexts (see the concluding symposium here).

On this basis, I will thus argue that to understand the patterned diversity of constitutionalism as a global phenomenon, comparatists should not think in terms of the liberal vs non-liberal dichotomy, but rather in terms of several ideal-typical varieties of constitutionalism (1), which manifest in multiple variants, localized adaptations, and hybrid combinations in actually existing constitutional orders at the national level (2).

(1)    Dichotomy vs variety

Roux’s account is based on a dichotomy between the “liberal-progressivist narrative” (LPN) and the “culturalist grand narrative” (CGN). As Roux himself points out, and other commentators criticize, the dichotomy is, to some extent, constructed for analytical purposes and does not capture the empirical complexity of constitutional debates in either jurisdiction. As a heuristic device, it has the virtue of clarifying and sharpening the diverging characteristics of the thesis and its antithesis (and it allows Roux to conclude with a Solomonic synthesis). In our VACON project, we also found it helpful to think in terms of analytical ideal types (in the sense of Max Weber, but without the “charitable” twist added by Roux) in order to reduce complexity and to capture the patterned diversity of constitutionalism as a global phenomenon. This global diversity, however, is less amenable to being described in dichotomous terms. Indeed, the purpose and premise of our VACON framework was specifically to transcend the liberal vs non-liberal dichotomy that has shaped debates in comparative constitutional law and to pluralize the categories of comparative analysis. We thus argue that as a global phenomenon, constitutionalism does not come in two but several ideal-typical varieties, including liberal, social, transformative, directive, illiberal, and authoritarian types. From this perspective, Roux’s grand narratives raise several questions.

The first question is whether the LPN and CGN tell the whole story, and how Roux’s synthesis of “Southern democratic constitutionalism” fits into the global typology. Looking at extant literature on India and South Africa, one may ask in particular whether transformative constitutionalism (TC) qualifies as another important analytical ideal type. In earlier writing (see, for example, here) Roux has essentially treated TC as a localised variant of liberal constitutionalism adapted to postcolonial contexts, whereas his “world view” article deliberately avoids the concept altogether (cf. fn. 170 of the article).

In contrast, our VACON project found good reasons to distinguish transformative and liberal types for analytical purposes based on differences in constitutional histories and contexts, purposes and values, rights doctrines, and associated implications for the role of courts and separation of powers. These differences are not, however, exclusive to the Global South but also characterize older constitutional traditions in Europe and Latin America, such as the “social constitutionalism” of the Weimar era, or the lusophone concept of the “directive constitution” in post-authoritarian Portugal and Brazil (often overlooked in Anglophone debates). Acknowledging these distinct social, directive, and transformative varieties allows a more nuanced contextual analysis of constitutionalism as a global phenomenon.  

A second question raised by Roux’s “culturalist grand narrative” is whether this narrative will consolidate into a new variety of constitutionalism of its own. In India and South Africa, it seems to be a matter of constitutional politics and scholarship so far rather than of applicable constitutional (case) law. In other parts of the world, constitution-makers and constitutional courts have implemented more culturalist and “decolonial” approaches, for instance the new Andean constitutions in Ecuador or Bolivia that recognise indigenous rights and cosmovisions. To what extent such approaches are comparable to elements of the CGN would be an interesting question for future South-South comparison.

(2)    Dichotomy, variety and hybridity

Dichotomous narratives and global typologies both have their limitations when it comes to analysing and explaining actually existing constitutional systems and developments at the national level. Ideal-typical varieties, by definition, do not exist in pure form in the constitutional reality of any one jurisdiction. Actual constitutional systems are often multidimensional combinations of multiple influences from liberal and non-liberal sources and types, with local adaptations and innovations that are not easily placed within one ideal-typical category. In Latin America, in particular, constitutional hybridity has been described as the norm rather than the exception, and hybrid systems pre-date many prototypically “liberal” or “social” constitutions in North America or Europe (see, for example, this discussion by Pou Giménez, drawing on Gargarella’s influential account of Latin American constitutionalism).

Localized adaptations of constitutional liberalism may co-exist with social, transformative or conservative variants, legally pluralist arrangements, or even forms of autocratic legality. Post-authoritarian Germany and Brazil have combined locally adapted variants of constitutional liberalism with social and transformative elements. A constitutional system may be politically liberal and democratic, but not evince the same degree of economic liberalism. Or it may be economically liberal, but politically undemocratic and illiberal, as in military dictatorships in Latin America that coexisted with relatively liberal, capitalist market economies.

Conclusion

As current challenges attest, neither dichotomies nor varieties nor hybrid elements are static over time but evolve in response to changing contexts, local contestations, and global influences. A social-transformative constitution like the Brazilian one may become more preservative (or liberal, if you will) when faced with politically repressive, right-wing populists in power (on anti-models, see Klug and Scheppele; and on preservative models of transformative constitutionalism, see Fowkes). Right-wing populists, in turn, may borrow liberal constitutional forms for illiberal purposes or seek to entrench neoliberal economic policies. Autocratic regimes may cloak their claims to power in the language of postcolonialism and Southern solidarity. As challenges to all forms of democratic constitutionalism intensify, constitutional resilience becomes a key question for future research. How to distinguish normatively desirable and legitimate local adaptations of constitutionalism, required for its resilience, from autocratic perversions?

This may require not just Roux’s charitable reading of the narratives put forward by constitutional actors and movements, but also its inversion: a suspicious reading, a hermeneutic of constitutional suspicion, as a methodological element of practising militant democracy in comparative scholarship, or in short: a militant comparison.

Michael Riegner is Assistant Professor of Public International Law and International Administrative Law in the Faculty of Economics, Law and Social Sciences at the University of Erfurt, and managing co-editor of the journal World Comparative Law, in which Theunis Roux’ article, and a related symposium, was published.

This post is part of a symposium, guest edited by Anmol Jain, responding to Theunis Roux’s article ‘Grand Narratives of Transition and the Quest for Democratic Constitutionalism in India and South Africa’.

Suggested citation: Michael Riegner, ‘Global Varieties of Constitutionalism and Contestations of Liberalism: How do Theunis Roux’s Grand Narratives on India and South Africa fit in?’ IACL-AIDC Blog (13 March 2025) Global Varieties of Constitutionalism and Contestations of Liberalism: How do Theunis Roux’s Grand Narratives on India and South Africa fit in? — IACL-IADC Blog