—João Vitor Cardoso, Universidad de Chile
[Editor’s Note: This is one of our ICONnect columns. For more on our 2023 columnists, see here.]
In The Black Jacobins, James (1989, 317) recounts an absolutely dramatic scene as part of a confrontation between the French Army and the people of Haiti: “The [French] soldiers still thought of themselves as a revolutionary army. Yet at nights they heard the blacks in the fortress singing the Marseillaise, the Ça Ira, and the other revolutionary songs. Lacroix records how these misguided wretches as they heard the songs started and looked at the officers as if to say, «Have our barbarous enemies justice on their side?».” At the end of the day, this factor proved decisive, because some soldiers took a step back and questioned: “Wait a minute, are we fighting against our own ideals which have turned against us?” As a result of this situation, a sedition of Polish troops occurred, and this became one of the foundational moments of modern constitutionalism. In the hands of skillful political actors, the circulation of ideas risks being converted into a tool —or perhaps even a model—for social emancipation.
Aiming at providing the backdrop for a contextual approach to institution-building in developing countries, this column sheds light on the way constitutional ideas travel in an increasingly interconnected world, by exploring the capacities of peoples of the global south for legal innovation, as pioneering intellectual agents, not just as victims of modernization programs. In order to do so, we have to dispose of one obstacle that might otherwise get in the way of our inquiry: the widespread idea that our constitutional pathologies mirror the international division of labor, wherein we, the super-exploited workers in the southern hemisphere, reproduce what they can dump on us from the north. Many studies by Latin American theorists of dependencia can be found that are uncompromisingly critical of existing Western democracies, describing them as intrinsically repressive due to their impact on Latin America. Hence, discomfort with large-N comparative law studies has been common to Latin American nuevo constitutionalismo scholars who are also prone to stand against foreign constitutional advice. It is in this way that constitutional ideas present themselves to us. As a function of the political dependency of our countries. Not, to be sure, as a function of our intrinsic capacities and possibilities. This, in turn, results in an overestimation of the effects of the circulation of constitutional ideas from above while underestimating the translation and consumption of these ideas from below.
The geopolitics of constitutional advice giving today depends not merely on the domination of the center over the periphery, but also on the much more complex interaction of local demands, social movements, new technologies, and cultural cosmopolitanism. Said differently, the transfer of constitutional ideas occurs within the “context-driven” interaction between global and local dynamics, embracing processes of cultural hybridization that go either way (i.e., south-north, north-south, south-south, and so on). Taking a South-North analytical approach, in this reverse flow dynamic, we should consider to what extent a constitution-making process presents itself with two faces, one independent and autonomous, the other interdependent and interlocking with a transnational agenda. A focus on these two levels can help us understand the emergence of new constitutional imaginaries anchored in the experiences of peoples from developing countries who have not merely copied the originators of the North Atlantic.
The problems posed by the way in which the notion of dependencia is employed in particular by nuevo constitutionalismo latino-americano discourses derive from the fact that the concept is too vague in character. In short, an attempt is made to explain virtually all of our constitutional pathologies by the “internationalization of palace wars” to use Dezalay & Garth’s phrase. The “pedagogical” objective here is to convince us that, aside from the impeccable currents of Marxist inspiration, foreign constitutional advice amounts simply to dispossessions and economic liberalization. However, within actual political developments, these hypercritical discourses often turn against the victims themselves. Overestimating the asymmetry between a deceived South and an all-powerful North may also reinforce elite notions about economic “stages” of development in ways that affect institution-building. Global South capacities are underestimated or ignored.
It is here that the denunciation that “it’s all the global north’s fault” is entirely counter-productive: it can give the impression that there is, on the one hand, only one big imperial machine, which would over-determine everything, and, on the other hand, the inheritors of a history of colonialism, treated as mere puppets. Evidently to question this philosophy is not to buy wholesale the bureaucrats, missionaries, and experts of the World Bank sent into periphery countries for their “own sake.” It is rather to question the role that is conferred on the circulation of constitutional ideas because it would be a grave misunderstanding to conclude that it is all about plunder, mainly in times when progressive liberal constitutionalism faces substantial challenges. Perhaps it would be more adequate to interrogate oneself about these networks, which were woven together by indigenous movements, certain elements of feminism, and which traverse foreign consultants, in the attempt to create a new constitution for Chile — this experience that didn’t change much whilst changing everything in our politico-legal landscape.
To clarify, let me take an example from my own research on how the circulation of constitutional ideas guided constitution-making in Chile. During the 2019 “constituent moment,” feminism emerged as a struggle for women’s liberation and took its place alongside other social movements that were questioning core features of Chilean society. Moreover, indigenous leaders who have been advocating for Indigenous rights for decades created a political space for indigeneity within the constituent process. In short, a powerful new account of feminist thought was a force working in concert with indigenous movements in the struggle to bring “neoliberal constitutionalism” to an end in Chile. This “intersectional alliance” guided by new conceptualizations of political self-determination derived from feminist thought and Indigenous philosophies is critically important to understanding the “networks” of power and agency that interact in the process of democratic renewal in Chile. Through tactics like hybridization and regional networks of activism, these movements benefitted from the exchange of constitutional ideas among themselves, while international cultural flows invoked deeply contextual meanings such that they could successfully introduce reserved seats for Indigenous peoples and gender parity in the electoral outcome of the Constitutional Convention.
Conversely, when complete outsiders won the election for the constituent body against establishment candidates, the circulation of constitutional ideas within the Convention was deemed by the establishment as part of a global conspiracy made up of transnational élites. The cry “¡Fuera de la Convención, IDEA International!” by Rechazo supporters during demonstrations epitomizes how international advisers were considered foreign influences best kept at arm’s length. On the other hand, the lefties denounced afterward the role of transnational empire in the failure of the process. As Heinz Klug (2000, 5) explains, the embrace of constitutionalism in the context of democratic reconstructions involves “a complex form of reception, where local competitors draw on available international resources in order to pursue their own local and ultimately transnational agendas.” The interplay of this wider set of circumstances is key to understanding how international normative pressure could be reshaped through local and transnational engagements, and so leads us to rethink constitutional dialogues today.
Suggested citation: João Vitor Cardoso, Transnational Constitutional Dialogues: Searching for New Songs of Freedom, Int’l J. Const. L. Blog, Nov. 1, 2023, at: http://www.iconnectblog.com/transnational-constitutional-dialogues-searching-for-new-songs-of-freedom/
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