—Maartje De Visser, Singapore Management University, Yong Pung How School of Law
[Editor’s Note: This is one of our biweekly ICONnect columns. For more information on our 2022 columnists, see here.]
In a 2011 article, Teemu Ruskola forcefully suggested that Asia’s spatial and temporal significance had long been overlooked due to misguided conventional conceptions of this region as not located in a place or time that mattered. Clearly, much has happened since then and efforts to pluralize comparative constitutional law have begun to change the face of the discipline – and for the better. More recently, there have been calls to embrace the concept of the Global South as the next step in the evolution of our field.
One notion, multiple purposes?
A thought-provoking 2020 volume edited by Philipp Dann, Michael Riegner and Maxim Bönnemann suggests that the ‘turn’ in comparative constitutional law to the Global South should not be understood only in spatial terms, but also as nudging epistemological and methodological changes in terms of the real world phenomena and challenges that our discipline should be concerned with, and the manner in which these are studied. Clearly, these are worthwhile aims in their own right. Yet, using the Global South as a container concept to help recalibrate comparative constitutional law across a range of dimensions is not necessarily helpful.
What would, and should, qualify as ‘Global South’ research? Works that use the concept to study and compare constitutional systems in the southern hemisphere; works that focus on a theme that is associated with the Global South, like socio-economic transformation or access to justice regardless of where in the world the examined countries are located; and/or works that advocate a normative approach to constitutional topics grounded in a lived sense of belonging rather than based on a Weberian understanding of the State? Confusion may arise as to which dimension(s) Global South research should address: spatial, epistemological, methodological, ideological or all of the above. Fluid boundaries could produce parallel discourses about this concept and its implications that co-exist, but do not properly engage with one another – and that may hence limit the extent to which the concept will be able to truly shape the nature and direction of our field.
Rather than (over-)loading the Global South with a diverse range of aims, it could instead be profitable to look to the general field of comparative law to further enlarge the arsenal of epistemological and methodological concepts as well as approaches, given that field’s long experience in grappling with questions pertaining to the design of suitable research frameworks. For instance, legal pluralism is one example of an interesting general comparative law notion, which is premised on the factual reality that there is a multiplicity of sources of normativity and can go as far as rejecting the view that law is exclusively authored by the state. Legal pluralism thus caters to societies in which non-State orders – like tradition, custom or religion – continue to be important in governing people’s conduct, alongside (or even instead of) the rules that make up the formal constitutional order. This clearly covers most developing countries, but comparative scholars have recognized that legal pluralism is also present in mainstream jurisdictions in the northern hemisphere. Another relevant notion could be that of legal culture, as developed by Lawrence Friedman and David Nelken, which focuses attention on the manner in which legal professionals and lay individuals relate to formal institutions as well as formal rules. Using legal culture means research that explores people’s knowledge of and behavioural patterns towards the law, which allows for a richer and more contextualized understanding of how constitutions work (or not) in daily life – for instance, in making sense of how political and social ideas shape the acceptance of particular rights across jurisdictions, or figuring out what may account for variations in constitutional litigation rates beyond the design of applicable procedural frameworks.
Dealing with legal families in constitutional law
If the Global South were divested of epistemological and methodological content, it could still be used as a spatial concept. This brings to mind efforts at creating taxonomies, more particularly the well-known division of the world into legal families. Is there, and should there be, a general geographic division between the Global South and its logical counterpart, the Global North? When classifying jurisdictions, a shared set of features and legal history are a necessary prerequisite, as general comparative lawyers have long known. What are the ties that would bind countries into a ‘Global South family’? Beyond the largely shared experience and legacy of colonialism, there are stark divergences in modes of thought, institutional design and ideology among the countries in the southern hemisphere. Some look to the constitution as a vehicle for socio-economic transformation (as in South Africa), others have placed a premium on textual and institutional continuity (like Japan or South Korea). Some are deeply influenced by religion (Brunei and Pakistan come to mind), others embrace secularism in various manifestations. Some adhere to liberal constitutionalism (for instance, Taiwan), others prefer a communitarian version of constitutionalism (e.g. Singapore, Malaysia) and yet others centre their constitutional identity on institutions beyond the trias politica (like the monarchy in Thailand and Bhutan). These variations may cast doubt on the existence and strength of a cohesive “common core” of Global South features that is sufficiently distinctive, including vis-à-vis other possible classifications of countries within and across hemispheres.
Relatedly, the creation of legal families often goes hand-in-hand with the identification of ‘representatives’ thereof, such as how France and Germany have often been treated as exemplars of the civil law family. The assumption is that this eases the work of the comparatist, as she can focus on the archetypes to uncover general features about the typical attributes and functioning of a legal family. When deciding to rely on such an epistemological heuristic, it must be ensured that the representative jurisdictions are, well, duly representative. The heterogeneity just mentioned makes this challenging. It also means that we ought to be cautious about placing too much reliance on favoured Global South jurisdictions like India, Brazil or South Africa as ‘proxies’ for providing insight into the southern hemisphere as such. Rather, taking the spatial Global South seriously should mean a concerted push to also bring, amongst others, the Pacific or the Middle East – with their own traditions, practices and debates – properly into the fold.
Against this backdrop, the Global South is perhaps best viewed as a temporary placeholder that nudges us to expand the comparative constitutional gene pool and enables the creation of a more accurate map of the constitutional world. The more our knowledge becomes truly pluralized, the less there will be a need to rely on the Global South to reorient the focus of the discourse; and as that concept recedes to the background, we could instead see the emergence of more finely-grained qualitative indicators of the ties that bind (smaller) groups of jurisdictions together, which may very well cut across geographic areas.
Telling the stories of the Global South
Heeding the call to tell the many stories of the Global South also requires reflection on who gets to do so, including consideration of possible linguistic and other barriers to being part of the mainstream global constitutional discourse. These matters warrant more attention than this post can cover, but let me here offer some tentative observations.
As Dinesha Samararatne has correctly pointed out, ‘authenticity’ is a problematic notion in this regard, as is the related idea of a ‘legitimate’ rendering of a Global South jurisdiction; there does not seem to be a straightforward criterion to determine whether someone qualifies as a ‘Southern’ or ‘Northern’ scholar – national origins, residence or familiarity through fieldwork or personal networks may all be relevant. Even so, the reality is that there is, and will be, scholarship with a spatial Global South focus, authored by scholars who could be (self-)characterized as outsiders. The general comparative literature tells us that such accounts have their value, including for those ‘inside’ the system under analysis: reading outsider descriptions of one’s own system may allow for a fuller appreciation of what is shared with other systems, while also placing notable or unique aspects in sharper relief.
At the same time, there are arguably good practices that outsiders ought to take note of: posing the question, either internally or explicitly, about their suitability to report and assess a Global South jurisdiction; actively seeking out the views and feedback of those from the jurisdiction(s) covered, before and also after publication; being cautious in offering accounts comparable to those already prepared by those better positioned to do so due to their superior contextual understanding; and exploring ways to improve engagement with insider narratives, which should range from thinking how to alleviate practical difficulties faced by scholars in Global South jurisdictions in doing their academic work (e.g. access to content in paywalled journals, securing visas and funding to attend overseas conferences) to calling on leading publishing houses and journals to recognize the value of (abridged) translations of accounts from within the many Global South jurisdictions in which the national scholarly discourse is conducted in a language other than English.
Suggested citation: Maartje De Visser, Rethinking the Concept of the Global South, Int’l J. Const. L. Blog, Mar. 31, 2022, at: http://www.iconnectblog.com/2022/03/rethinking-the-concept-of-the-global-south/