—Jorge González-Jácome, Associate Professor of Law at Universidad de los Andes (Bogotá)
The critical project in comparative law can be traced at least as far back as Günter Frankenberg’s foundational text “Critical Comparisons”, published in the Harvard International Law Journal in 1985. Although this essay did not address comparative constitutional law specifically, its final pages outlined a series of implications of Frankenberg’s critical proposal for reading abortion regulations in different parts of the world. Much water has flowed under the bridge of the comparative constitutional law project since then, especially as a result of the development of critical theories by comparativists interested in explaining law in countries across Latin America, Asia, and Africa.
In this column, I would like to briefly describe three moves that have emerged from the ongoing revitalization of the critical project within comparative constitutional law. A more detailed development of each of these moves, and of others I cannot address here for reasons of space, merits a more elaborate and substantiated treatment. Nevertheless, I hope that this preliminary map captures part of the current state of the debate and proves useful to those committed to approaching constitutional law of the “Global South” from a critical perspective.
I begin clarifying what I mean by “critical.” Following the articulation of the project in the words of Wendy Brown and Janet Halley, I understand that “the aim of critique is to reveal subterranean structures or aspects of a particular discourse […] critique is part of the arsenal of intellectual movements of the past two centuries that shatters the plausibility of objectivity [and insists] […] that all human productions [can be reexamined to show their] constitutive premises.” Beyond the intellectual aims of critical projects, their more tangible purpose is to question how these assumptions and constitutive premises of discourse contribute to shaping the distribution of power in the world. By casting doubt on these points of departure, critique promises a way to redistribute power in forms we might find more equitable.
From the standpoint of comparative constitutional law, critical approaches question the premises upon which comparison itself is undertaken. Their ultimate aim has been to challenge a cultural and political hierarchy that positions the “Global South” as a place without agency, portrayed as the site of an irreparably failed law. From this perspective, I would like to explore three critical moves that have sustained this challenge to hegemonic discourses within mainstream comparative constitutional law:
i) the emphasis on the history of receptions;
ii) a deconstructive attitude toward categories that simplify and divide the legal world; and
iii) the existential purpose that grounds the critical project.
There appears to be broad agreement within comparative law that legal materials travel across the world. Whether called transplants, transfers, translations, or migrations, constitutional rules, institutions, and ideas move from sites of “production” to sites of “reception.” The description of how these travels take place is itself a matter of debate among comparatists.
The critical move in describing these processes emphasizes what happens at the site of reception, explaining it as a creative process in which borrowed materials are reread and reinterpreted, often to the point that, through the act of reception itself, new legal meaning is generated. By making this move, critical comparatists show that creativity does not occur only when, for example, a U.S. court develops a reasonableness test for equality cases. Creativity also occurs when a court in Colombia adopts that foreign test and applies it to its own context, thereby creating something new. Thus, the history of constitutional transfers across jurisdictions cannot be seen as the story of the “correct” birth of a doctrine in its place of origin and its “defective” reception elsewhere. The critical question becomes: how and why did a certain kind of reception occur, and what does that process reveal about the global and local power structures that shape such transfers?
The second critical move is related to the first and involves a deconstructive attitude toward the classifications that attempt to contain or discipline legal diversity. The classic example is the notion of legal families, which once sought to explain all of Western law through two dominant traditions: civil law and common law, both originating in the countries of the Global North. In this narrative, the countries of the “Global South” appeared merely as appendices of dominant European cultures, where those traditions had emerged. While in constitutional law the impact of legal family classifications has been somewhat lesser, insofar as that project was anchored in private law, there are nonetheless categories that have drawn a clear divide between the West and the rest.
For instance, early articulations of “authoritarian constitutionalism” assumed that this type of constitutionalism occurred primarily in Southern countries. The category itself thus produced a stark division between nations that had “misused” constitutionalism—usually in the South—and those that followed the “proper” constitutional path—usually in the North. Perhaps the emergence of an authoritarian project in the United States in 2016 softened these distinctions, lending credibility to the deconstructive stance that the point was never to label authoritarian constitutionalism as the “other” of liberal constitutionalism, but rather to ask to what extent liberal constitutionalism itself contains authoritarian tools. Over time, this insight crystallized into the notion of “abusive constitutionalism.” This development clarified that there is no simple dichotomy: constitutionalism everywhere contains a germ of authoritarianism, regardless of where it takes shape.
The third critical perspective is broader and recalls what Frankenberg taught us in 1985: critical comparison begins with an existential question:“Who am I?” The existential attitude implies that the answer to this question is never stable throughout our lives, and comparative law projects are opportunities to offer provisional answers through which we construct ourselves. In this sense, the critical project in comparative constitutional law places the comparatist at the center of a journey –not as someone who merely contrasts and emphasizes differences with the Other, but one who undertakes a journey to other places that transforms her own understanding of what she is or might be.
Imagine, for instance, a U.S. comparative law scholar studying the stability of constitutions in India or Colombia through the doctrine of unconstitutional constitutional amendments. Upon returning to the United States, this encounter with India and Colombia might lead them to reflect on the distinct local histories that produced different mechanisms to safeguard constitutional stability. And in that “round trip” the comparativist’s own origin should be destabilized. Not only is his home solution not “natural” or “obvious,” but also his enterprise can lead him to assess up to what extent different cultures rely or not in legal safeguards to protect constitutions. Encounters with alternative ways of addressing shared problems should provoke a productive crisis of identity, compelling us to question whether our own solutions are indeed the most equitable and just.
I have painted this picture with a broad brush. Each of these critical moves deserves deeper explanation and richer illustration. Yet I trust that the critical attitudes within comparative constitutional law make this field a space not merely for taking snapshots of the state of things, but for filming moving pictures that allow us to understand constitutional law as an object in permanent motion and tension with ourselves.
Suggested citation: Jorge González-Jácome, The Critical Project in Comparative Law, Oct. 24, 2025, at: http://www.iconnectblog.com/the-critical-project-in-comparative-law/