Liberal constitutionalism is much maligned today as, at best, a culturally contingent approach to governance, and, at worst, epistemically hubristic. Concepts like the rule of law and the separation of powers, far from expressing universal truths, are said to be inseparably tied to the European Enlightenment. Their continued presence in constitutions around the world is less an indication of their durability and more a reflection of their current status as conceptual driftwood deposited at the high-water mark of Western hegemony.

But is this an accurate account of liberal constitutionalism and does it really square with our understanding of the way legal concepts are recycled between North and South?

Much depends, this contribution contends, on how we conceive of liberal constitutionalism and, in particular, whether it is best thought of as a coherent ideology or as a pragmatic, experimentalist tradition. On the former view, liberal constitutionalism is indeed the take-it-or-leave-it “value package” that mentally colonises even as it purports to liberate. On the latter view, it is a repository of ideas about the institutional preconditions for human flourishing that is arguably quite compatible with the notion of reflexive globalisation.

How Should We Conceive of Liberal Constitutionalism?

The two best-known scholarly accounts of constitutionalism in its liberal form date back to the middle of the last century. As their contributions have typically been summarised, both Charles McIlwain (writing in 1938) and Giovanni Sartori (in 1962) conceived of constitutionalism as being primarily about the limitation of arbitrary power.

For McIlwain, this was the abiding and essential ingredient of constitutionalism that distinguished it from “despotic government”. For Sartori, the early twentieth-century broadening of the term “constitution” to encompass any organisation of governmental power was a betrayal of the original, garantiste conception of constitutionalism associated with the American and French revolutions and, before that, the English system of government. Strictly speaking, he insisted, the term “constitution” should be reserved for a system of government limited by law.

As Nick Barber has noted, this mid-century “negative” conception of constitutionalism has since acquired almost canonical status – as though nothing that happened after World War II might cause us to reconsider its correctness. When attempts are made to update McIlwain’s and Sartori’s accounts, constitutionalism is conflated with judicially managed democracy and pejoratively dismissed as the regrettable Americanisation of the world.

While this captures one important aspect of the concept, the idea that liberal constitutionalism is a political ideology mainly concerned with legal limits on governmental power is an impoverished conception that does much to embolden its opponents.

A political ideology, after all, is a systematic set of ideas that purports to guide conduct in pursuit of a comprehensive world view. Its truths are considered immutable and unchallengeable. Framed like that, liberal constitutionalism is indeed vulnerable to the critique that it is an exclusively Western theory of government that both papers over the abuse of private power (the longstanding left-wing charge) and, when exported to the Global South, rides roughshod over culturally distinct, local traditions of governance.

There is another conception of liberal constitutionalism however, that is both closer to its essential spirit and less vulnerable to these charges. The whole point about liberal constitutionalism, on this second view, is that it is a tradition of thought that allows – nay, actively encourages – contestation over the meaning and context-sensitive institutionalisation of its animating principles. Like liberalism itself, liberal constitutionalism on this view is an ever-evolving tradition of thought that cannot be reduced to a single idea or abiding preoccupation.

Rather than an ideology with fixed parameters, liberal constitutionalism on this second view is best understood as a pragmatic, experimentalist tradition of thinking about the institutional preconditions for human flourishing. It is not a comprehensive world view that purports to provide all the answers to the challenges of modern governance. It is more in the nature of a repository of ideas that can be used to design a constitution in ways that are sensitive to the local context and to feedback from experience.

How Should We Understand Postcolonial Constitution-Making Processes?

When we understand liberal constitutionalism as a pragmatic, experimentalist tradition, processes of postcolonial constitution-making in which liberal ideas have played a role are not necessarily instances of epistemicide or cultural re-colonisation.

Of course, there are instances when this is clearly what is going on. When Britain withdrew from Anglophone Africa, for example, it left behind an almost identical constitution in each country. The similarity in their rights formulations, not to mention the process of their drafting and enactment, is strongly suggestive of an attempt to culturally embalm the postcolonial body politic in the beneficent oils of Western civilisation.

On the aforementioned first conception of liberal constitutionalism, the fact that Britain imposed these constitutions on postcolonial polities did not mean that they were not liberal. Since the marker of that “ideology” is its concern for the limitation of public power, there is enough in these constitutions as a purely textual matter to classify them in that way.

On the second conception, by contrast, nothing could be further from the truth. On this view, the important point is that there was no genuinely democratic process through which the citizens of the countries concerned drew on the liberal-constitutionalist tradition, to fashion out of its abstract principles, formulations that could be said to reflect the needs, cultural values and institutional preferences of the duly elected constitution-makers.

Having this negative example in mind is useful when considering how to typify the very different constitution-making processes that were followed in countries like India from 1947-1949 and South Africa from 1991-1995. In those two countries, subject to some well-known qualifications, there was a genuinely democratic process through which an active citizenry deliberated how best to promote shared ideals, some of which are aptly described as liberal in character.

In India, for example, the Constituent Assembly famously took advice on the framing of the right to personal liberty in Article 21 with a view to avoiding the pitfalls of the American doctrine of substantive due process. In South Africa, the Constitutional Assembly was expressly enjoined to take account of “all universally accepted fundamental rights, freedoms and civil liberties”, by which was meant rights, freedoms and liberties recognised by other liberal democracies.

To be sure, liberal constitutionalism was not the only tradition of thought that influenced the Indian and South African constitution-making processes.

In India’s case, much has been written about the alleged absence of local cultural influences on the 1950 Constitution – “the music of Veena or Sitar”, as it was evocatively put. But revisionist accounts remind us that Hindu nationalist voices, in particular, despite the prohibition of the Rashtriya Swayamsevak Sangh after Gandhi’s assassination, were represented in the Assembly and that they did exert some degree of influence on the final text.

The best example here is the Indian Constitution’s treatment of religion, where the American and French model of absolute separation of church and state was eschewed in favour of giving equal public recognition to all major religions. That institutional innovation may be understood as the local adaptation of a liberal-constitutionalist principle under the influence of local traditions and cultural values.

The 1996 South African Constitution is similarly marked by several innovations, some of which are attributable either to the socialist tradition within the African National Congress (ANC) or to the specifically South African struggle against the abuse of power under apartheid. Thus, for example, that Constitution’s innovations in respect of socio-economic rights cannot be understood without taking account of the ANC’s status as a broad political church and the history of anti-apartheid human rights lawyering.

Neither the Indian nor the South African Constitution, in that sense, could be said to have been drafted in a rarefied liberal-constitutionalist laboratory. Their constitution-making processes were exposed to manifold influences and traditions other than liberalism. And, yet, in both instances, the constitutions that emerged are recognisably liberal-constitutionalist in character, at least based on the context-sensitive conception given earlier.

The major apparent deviation from the liberal-constitutionalist tradition, to be sure, is their statism. Neither the Indian nor the South African Constitution is classically liberal in that sense; both are far more preoccupied with promoting and protecting the conditions for constitutional democracy than the American Constitution.

For some, this means that they should be classified as post-liberal. But that is again a view based on the first conception of liberal constitutionalism. On the second conception, these innovations look much more like considered decisions about how best to adapt liberal constitutionalism to the challenges of post-colonial governance.

Liberal Constitutionalism and Reflexive Globalisation

How compatible is this account of postcolonial constitution-making with the concept of “reflexive globalisation”, the thematic focus of the Centre for Advanced Studies RefLex?

At its most basic, reflexive globalisation departs from the premise that the circulation of ideas between North and South is not well understood as the unilateral projection of Western ideas onto the South. Rather, the process of colonisation, as a key stage in the broader process of globalisation, precipitated a mutually co-determinative encounter between North and South that is still ongoing. That understanding is not obviously incompatible, and is indeed, in some respects, resonant with the process of postcolonial constitution-making in India and South Africa just set out.

For one, during the period of colonisation itself, and especially in South Africa’s anti-colonial struggle, the apartheid government’s claim to be upholding Western rule-of-law norms was leveraged in defence of human rights. In the course of that engagement, these norms were given a local inflection, as happened, for example, when the right not to be evicted without a court order was developed in S v Govender 1986 (3) SA 969 (T).

In other instances, Western ideas came up against and were counterposed to local traditions of political struggle against the abuse of power. One thinks here, for example, of Gandhi’s notion of satyagraha, which made its first appearance in South Africa before being redeployed to India in a classic instance of South-South migration.

The point is that colonialism set in motion processes of cross-cultural pollination and hybridisation – matters that have been extensively studied in the humanities and social sciences but not yet in the field of comparative constitutional studies. Conceiving of liberal constitutionalism as a pragmatic, experimentalist tradition, provides a frame through which this gap can be addressed.

The first appealing aspect of viewing the constitution-making processes in India and South Africa as instances of reflexive globalisation is its descriptive accuracy. Rather than the unilateral projection of Western values onto a still subject population, as the decolonial account makes out, those processes are better seen as a process of hybridisation, during which local traditions of political struggle were re-articulated in the language of liberal constitutionalism, in the process transforming that language and generating new conceptual understandings.

Second, seeing things this way gives due recognition to the political agency displayed by constitution-makers in India and South Africa. Rather than passive recipients of Western values, constitution-makers adapted liberal-constitutionalist principles to their sense of the demands of post-colonial justice. As in other processes of cultural hybridisation, the Indian and South African constitution-making processes were sites of encounter between Northern and Southern ideas that left both sets of ideas transformed.

The added virtue of this understanding is that it acknowledges the South as an agent of constitutionalist experimentation and innovation. Rather than the passive recipients of Western cultural norms, Southern constitution-makers were innovators, meditating on how fundamental liberal principles should be promoted in the conditions of the post-colony.

On this view, there is no tension between the second conception of liberal constitutionalism elaborated here and the idea of reflexive globalisation. Indeed, they bear a strong elective affinity to each other and share many of the same concerns.

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