Beyond a Bimodal Southern Democratic Constitutionalism

Heinz Klug

Professor at the University of Wisconsin Law School, and at the University of Ghana School of Law (2024-2025)

Theunis Roux has made an important contribution in stimulating a debate over the nature of ‘Southern Democratic Constitutionalism’ (SDC) and what he describes as the two approaches to SDC which he places in dialogue with one another while arguing that they together reflect and contribute to a single dynamic version of SDC. While the interlocutors in this debate engage in a sophisticated theoretical discussion at a high level of abstraction, I intend in my response to dwell on a few contextual issues that I feel might enrich the discussion, including questions of legal continuity, urban-rural divisions and the role of both the legal profession and legal education more generally. Before turning to these contextual issues, however, I do want to question the decision to frame the debate over ‘Southern Democratic Constitutionalism’ as a bimodal discussion rather than as a spectrum of ideological and legal alternatives.

While much of the present debate, which Roux is responding to, focuses on distinguishing between a ‘liberal’ versus a potentially more ‘de-colonial’ notion of constitutionalism, this dichotomy ignores a variety of constitutional forms that exist in the Global South or are even present within the constitutional orders Roux uses as examples in his debate. Apart from different notions of democracy or the less than democratic forms that exist, there are numerous examples of democratic constitutionalism today, including in Africa – such as Ghana since 1992, and Kenya and Zambia – as well as across Southeast Asia – such as the Philippines and Indonesia – that might provide additional dimensions to a debate over SDC. Even within the constitutional orders discussed by Roux, there are alternative constitutional visions that do not fit into either of the bimodal options he describes. If we take South Africa, for example, there are a range of clauses within the 1996 Constitution that provide a constitutional vision of a social democratic social order that sought to empower the state to address apartheid’s legacies more directly than what the policies of subsequent ANC governments or the jurisprudence of the Constitutional Court have settled upon. Whether it is section 25(8) of the property clause, which provides an exemption from the rest of the clause for all land and water reform, or the early policy proposal for a wealth tax in the form of a capital levy, these are alternatives that were not constitutionally precluded but rather set aside by the decision of the ANC to embrace the neoliberal global economic order. A more substantial debate over SDC would need to look more closely at the constitutional viability of these more social-democratic options — whether in the form of the Brazilian ‘bolsa familia’ or Chilean land reform under Presidents Frei and Allende, as well as other examples of redistributive policies that attempted to aggressively implement the positive social and economic rights that are considered a defining feature of SDC.

Aside from my concern to broaden the debate over SDC I want to focus for the remainder of this post on the contextual issues I flagged above. First, I believe that a valuable contribution being made by the ‘de-colonialists’ is the focus on legal continuity. While much more work needs to be done to explore the nature and effects of legal continuity on SDC more broadly, it seems that we may at least agree on some common starting points. On the one hand, legal continuity is ubiquitous, even in the wake of violent revolutions or coups d’Etat, in which the first decrees of the new order recognize all existing law and legal rights until they are changed by the new order. On the other hand, the consequences of legal continuity are deeply embedded in most legal orders, especially when the new constitutional order has been negotiated and has accepted the continuity of law and legal rights unless explicitly changed by legislation or held in litigation to be in conflict with the new constitution. 

The elongated process effectuated by legal continuity effectively entrenches existing social interests and undermines further radical change by providing the space in which newly empowered elites will find themselves enmeshed in the existing system of social power and economic distribution. However, the one example of an attempt to forego all existing legal forms in order to overcome the stasis of social privilege was China’s cultural revolution, which had disastrous consequences for millions of people. Pointing out these outcomes, whether the entrenchment of privilege that legal continuity often brings, or the disastrous consequences of legal abnegation, is not to despair at the possibility of profound social transformation, but rather to call for an aspirational SDC that includes a focus on the need to address the economic and social disparities that threaten the very idea of a constitutionalism that goes beyond liberal restraint and instead seeks to ensure a more secure and sustainable life for everyone.

The second contextual issue that I feel is not adequately addressed in the present debate is the rural-urban divide that is so prominent in the Global South and therefore essential to any sustainable conception of SDC. While many ‘post-colonial’ constitutions in Africa include some recognition of ‘traditional authorities’ and/or indigenous or customary law, Mahmood Mamdani’s analysis of the bifurcated structure of the colonial state in former British colonies points to the existence of dualistic legal orders in the ‘post-colony.’ Yet, there has been little focus on what this means for SDC. Whether framed as legal pluralism, the recognition of indigenous rights, or simply a form of local government based on local custom, the effect is that people’s lives often straddle different legal orders, depending on whether they and their families are rooted in a rural community, in a city, or in-between. As a result, the focus of constitutional debate, litigation and change is on political parties, social movements and constitutional courts that are located in the major urban areas, and while rural voters are often mobilized at election time, they remain peripheral to constitutional debates and outcomes. Even where constitutional courts have produced innovative interpretations of indigenous law so as to bring these rules into conformity with the constitutional order, there are legitimate questions about whether the indigenous system is being truly recognized or simply assimilated into an urban dominated constitutional imagination.

The third contextual issue I wish to flag is the question of legal culture that is inherited and incorporated within the new constitutional order. Both the legal profession and legal education are central components of the legal order and while they soon respond to the formal constitutional change that decolonization brings, their existing conceptions of law are deeply engrained and often resurface in how the new constitution is interpreted and implemented. South Africa’s legal culture is a legacy of colonial-apartheid and although both the profession and judiciary have been transformed to more closely reflect the country’s demography, the formalism and positivism that marked the legal culture and an elitist tendency to valorize erudition and eloquence at the Bar continues to shape the country’s legal culture. The result has been a continuing tension within the profession with accusations of incompetence and racism undermining the legitimacy of the legal process, with dire implications for the constitutional order. 

The elitism of the legal profession and unwillingness to promote paralegals or other forms of legal advice to ensure greater access to justice by marginalized communities, especially rural communities, is another way in which legal culture is strangling constitutionalism in the Global South. While urban elites tend to dominate the legal process – both in terms of access to legal advice, representation and institutions – cause lawyers working with non-governmental organizations have, in some cases, pursued justice for less privileged litigants, especially in the realm of socio-economic rights. However, another aspect of legal culture has been the reluctance by both lawyers and judges to look to the jurisprudence of the Global South. While many Global South courts look to comparative jurisprudence in their opinions as a source of persuasive arguments rather than rules, the tendency is most often to discuss and quote from the jurisprudence of jurisdictions in the Global North rather than other countries in the Global South.  

In conclusion, I wish to again congratulate Roux and the World Comparative Law journal for stimulating such a valuable debate on the nature and parameters of a SDC that refocuses debates over constitutionalism away from the dominant concerns of the Global North and towards a more encompassing and possibly sustainable forms of constitutionalism across the globe. This is a glimmer of hope at a time when constitutionalism, understood capaciously to include ‘Southern’ conceptions, is being challenged by a populist and antidemocratic wave that threatens to impose autocratic constitutional orders around the globe. It is this threat to democratic constitutionalism that behooves us to expand our comparative vision and cooperate to formulate a clear and convincing conception of a ‘Southern Democratic Constitutionalism’ that should provide creative examples for consideration around the Global South and beyond.      

Heinz Klug is a Professor at the University of Wisconsin Law School, and at the University of Ghana School of Law (2024-2025).

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: Heinz Klug, ‘Beyond a Bimodal Southern Democratic Constitutionalism’, IACL-AIDC Blog (6 March 2025) Beyond a Bimodal Southern Democratic Constitutionalism — IACL-IADC Blog.