Mont Fleur Conversations on Constitutionalism

MONT FLEUR CONVERSATIONS ON CONSTITUTIONALISM

2 – 6 December 2022

Mont Fleur, Stellenbosch

Edited by Nico Steytler

Mont Fleur Conversations on Constitutionalism

Published by Dullah Omar Institute of Constitutional Law, Governance and Human Rights, University of the Western Cape

© 2024 Dullah Omar Institute of Constitutional Law, Governance and Human Rights, University of the Western Cape Designers: Nado Graphics

The support of South African Research Initiative of the Department of Science and Technology and the National Research Foundation, through the South African Research Chair in Multilevel Government: Law and Development is hereby acknowledged.

CHAPTER

Lead-In: Patricia Popelier

Comment: Johanne Poirier

Comment: Eva Maria Belser

Comment: Zemelak Ayele

CHAPTER

Lead-In: Assefa Feseha

Comment: Yonatan Fessha

Comment: Curtly Stevens

CHAPTER

Lead-In: Nico Steytler & Jaap De Visser

Comment: Tinashe Chigwata

Comment: Zemelak Ayele

Comment: Thabile Chocho-Spambo

CHAPTER

LIST OF PARTICIPANTS

Assefa Fiseha is the Director of the Centre of Excellence at Addis Ababa University, Ethiopia.

Eva Maria Belser is the Chair in Constitutional and Administrative Law, UNESCO Chair in Human Rights and Democracy, co-director of the Institute for Federalism, and Vice Dean of the Faculty of Law, Fribourg University, Switzerland.

Tinashe Chigwata is an associate professor and Head of the Multilevel Government Project at the Dullah Omar Institute for Constitutional Law, Governance and Human Rights, University of the Western Cape, South Africa.

Thabile Choncho-Spambo, a lecturer, is a doctoral researcher at the Dullah Omar Institute for Constitutional Law, Governance and Human Rights, University of the Western Cape, South Africa.

Jaap de Visser is the South African Research Chair in Multilevel Government, Law and Development. He was formerly the Director of the Dullah Omar Institute for Constitutional Law, Governance and Human Rights, University of the Western Cape, South Africa.

Octávio Ferraz is a professor of law at King’s College London, United Kingdom.

Charles M Fombad is a professor of law and the Director of the Institute of International and Comparative Law in Africa, University of Pretoria, South Africa.

Jeff King is a professor of law at University College London, United Kingdom.

Henk Kummeling is a professor of comparative constitutional law, and the Rector Magnificus Utrecht University, the Netherlands. He is also an extraordinary professor at the University of the Western Cape, South Africa.

John Mutakha Kangu is a senior lecturer at the School of Law, Moi University, Kenya.

Xavier Philippe is a professor of public law at Paris 1 Panthéon-Sorbonne University, France, and an extraordinary professor at the University of the Western Cape, South Africa.

Johanne Poirier is the Peter MacKell Chair in Federalism at the Faculty of Law, McGill University, Canada.

Patricia Popelier is a professor of law and Director of the Research Group of Government and Law, Faculty of Law, University of Antwerp, Belgium, and Senior Research Fellow at the Centre for Federal Studies, University of Kent, United Kingdom.

Theunis Roux is a professor of law and Head of the School of Global and Public Law, University of New South Wales, Australia.

Curtly Stevens is a doctoral researcher at the Dullah Omar Institute for Constitutional Law, Governance and Human Rights, University of the Western Cape, South Africa.

Nico Steytler is a professor emeritus and former South African Chair in Multilevel Government, Law and Development at the Dullah Omar Institute for Constitutional Law, Governance and Human Rights, University of the Western Cape, South Africa.

Asanga Welikala is a senior lecturer, Head of Public Law, and Director of the Edinburgh Centre for Constitutional Law at the School of Law, University of Edinburgh, United Kingdom.

Yonatan Fessha is a professor of law and the Research Chair in Constitutional Design for Divided Societies at the Faculty of Law, University of the Western Cape, South Africa.

Zemelak Ayele is an associate professor of the Centre of Federal and Governance Studies at Addis Ababa University, Ethiopia, and an extraordinary associate professor at the University of the Western Cape, South Africa.

PREFACE

In December 2022, 19 constitutional law scholars gathered at Mont Fleur, a secluded conference venue nestled high against the Stellenbosch mountains, to discuss matters pertinent to constitutionalism and federalism. Unlike most conferences, the aim was not to follow the usual format of presenting papers followed by a Q&A, but to engage in conversations and ‘blue-sky’ thinking on the fundamentals of constitutionalism.

The participants all have a deep interest in the liberal concept of constitutionalism and its cousins – federalism and decentralisation. The aim of the conversations was to reflect on whether the orthodoxy in these fields is still (or has ever been) fit for purpose. In theory and practice, the concepts above have come under pressure and their validity, questioned. The conversations were an opportunity to do some blue-sky thinking on key issues that affect our work, as well as reflect on our concerns as political actors and individuals.

This publication

As no formal papers were to be delivered, the usual format of a volume of peer-reviewed conference papers was not envisaged. The written text prepared before and after the conference – the concept note, lead-in pieces, comments, and fireside stories – should not, however, be left unpublished. They contain analyses of complex issues conducted with clarity and erudition, some blue sky-thinking, and illuminating stories linking the scholar with constitutionalism. Unfortunately, the discussions - the nub of the event – could not be included

in this publication due to technical difficulties in transcribing the discussions.

This is hence an informal publication intended to document the event, with the focus both on conversations as a mode of academic discourse and on the key inputs that were made in regard to constitutionalism and federalism. Amply illustrated by photographs, the book seeks to do no more than capture an engaging, intellectually invigorating experience – and hopefully give rise to further conversations beyond its pages.

The authors

The conversations brought together primarily constitutional lawyers, who are not averse to dabbling in political science, and a sprinkling of political scientists with a foot firmly in constitutional law. They were persons with whom I have worked over the years in the fields of constitutional law, federalism, and decentralisation and local government. Many of them were also acquainted with other participants through common networks.

The participants ply their trade at universities, but also have a penchant for getting their hands dirty in the real world of governance and constitution-building through policy advice. A few young researchers also joined the group to enrich the discussions. Hailing from an array of countries and continents, the participants each have an enormous depth of knowledge and experience. What binds the group together is an interest in, and concern with, constitutionalism – in theory and practice – as a better way of governance than its alternatives.

Aim and structure

The conversations were structured in two parts. First, given the challenges emerging from both the theory and practice of constitutionalism and federalism, what new thinking does this prompt? Is there an orthodoxy that needs to be challenged? How could we look innovatively at constitutionalism, democracy, separation of powers, human rights, the rule of law, federalism and decentralisation? Could we engage in some blue-sky thinking? This involves a group of people looking at problems and opportunities with fresh eyes; more ambitiously, blue-sky thinking is the activity of trying to find completely new ideas regardless of practical constraints. It is the proverbial thinking ‘outside of the box’. It may entail radical, visionary thinking that questions the very premises of orthodoxy.

Secondly, blue-sky ideas should also meet brown-earth realities. Indeed, the opposite of blue-sky thinking is down-to-earth, hardheaded, practical, pragmatic and realistic thinking. How may new ideas speak to current harsh realities? Are ideas for the future contextspecific to the different global regions of Asia, the Americas, Europe, and Africa? What avenues of research open up for pursuit when blue-sky ideas and brown-earth practice meet each other?

Debates about these issues are not new, but there has been a surge of interest in them across the world as the dominance of liberal constitutionalism has come under challenge in theory and practice. Our conversations sought to contribute to these debates.

Acknowledgements

The Mont Fleur Conversations and this publication would not have been possible without the support and engagements of a number of institutions and persons. The

National Research Foundation, through the South African Research Chair in Multi-level Government: Law and Development (SARChI Chair), provided the resources and space for such a gathering to take place.

The Mont Fleur Conference Venue was ideal for this venture. The management and staff excelled in providing an environment that was conducive for ‘blue sky’ thinking; they accommodated any request – whether a sundowner in the mountain or on Kogel Bay beach with its marauding baboon, discussions under an umbrella or two – with a smile and warmth.

The staff of the Dullah Omar Institute was at their usual best in the organization of the event and the production of this publication: Laura Wellen, Keathélia Davids, Kirsty Wakefield, and Sadieka Najaar. Particular mentioned should be made of Curtly Stevens, Johanne Poirier and I for all his organisational work.

The current SARChI Chair, Jaap de Visser, encouraged and supported this publication. I would also gratefully acknowledge the (volunteer) photographers who captured the spirit of the event admirably (and with whose permission the pictures are published): Keathélia Davids, Eva Maria Belser, Curtly Stevens. Thanks also goes to Andre Wiesner for his incisive editorial eye.

Finally, the success of the gathering (and this publication) must be attributed to the participants. Their enthusiasm, energy, and embracing a new format of academic engagement and willingness to share a fireside story, made it happen. Thank you!

Cape Town 2024

Nico Steytler

CHAPTER 1: Conversations on Constitutionalism

Nico Steytler

In the concept note to the conference the following background information was given on the substantive issues and the mode of engaging in conversations.

Constitutionalism

Liberal constitutionalism, with its elements of democracy, limited government and rule of law, has been the dominant governance discourse of the West, as well as of international organisations such as the United Nations (UN). Numerous organisations like these, including regional bodies and international non-governmental organisations (NGOs), have, in a variety of ways, promoted constitutionalism as the better form of governance and one that leads to greater peace, stability and prosperity. Yet although many international organisations proclaim the universal desirablility of liberal constitutionalism, there are other modes of government, ones which, while not always articulated in coherent frameworks, challenge key notions of constitutionalism. The contention is that the centrality given to democracy, the limitations placed on government in societies of great inequality, and the shackles imposed by the rule of law, are standing in the way of stability, prosperity and more egalitarian societies.

The classic liberal democratic notion of constitutionalism is essentially one of limited government where at least three basic elements are enshrined in a constitution which is not readily amendable. The first is democracy – the establishment of accountable government in terms of both representative and participatory mechanisms. The second is limited government –entailing a separation of powers that provides checks and balances between the three branches of government – and an enforceable bill of rights. The third element is the rule of law – governance under rules and not by arbitrary discretion – which includes the supremacy of the constitution and its justiciability by an independent judiciary. The universalisation of this notion of constitutionalism as a normative framework for governance is evidenced by the many UN and regional instruments that exist, among them, for example, the African Charter on Democracy, Elections and Governance of 2007.

Some scholars use the term ‘constitutionalism’ loosely as a descriptive device denoting any system of constitutional law and practice at all, no matter what base or ideology underpins it. In the literature, there are references to ‘Islamic constitutionalism’ and ‘authoritarian constitutionalism’. Some scholars have even added a fourth element to constitutionalism, ‘transformative constitutionalism’ – a commitment to achieving social justice by transforming society through constitutional means. Others criticise the concept as a relic of 19th century Diceyan thinking, one no longer fit for purpose in the 21st century and serving merely to legitimise a market economy.

Challenges to constitutionalism: Globally, in Africa, and in South Africa

For many in the West, the end of the Cold War signified the ultimate victory of constitutional democracy and the market economy. The impact was greatly felt in Africa and elsewhere in the Global South, where democratisation, with all the bells and whistles of constitutionalism, ended decades of dictators, military regimes, and imperial presidencies. Thirty years later, constitutionalism is in retreat, not only in the Global South but in many parts of the North.

Globally, many have commented on the regression in democratic governance and the resurgence of authoritarian rule with only partial regard for liberal constitutionalism. Alternative approaches to government are gaining voice. Authoritarian regimes are more confident in propounding a model of economic growth outside democratic governance and unrestrained by

the separation of powers or the rule of law. The ‘developmental state’ is idealised as the champion of the poor and campaigner for equality, with its legitimacy hinging on the economic prosperity it delivers. Populism and authoritarian rule are also on the rise in the West, including within East European countries which three decades ago opted for constitutionalism.

In Africa, the end of the Cold War saw the collapse of the non-democratic regimes that had been propped up by the two erstwhile superpowers; at the same time, it saw constitutionalism extolled as the hallmark of good governance and the free market as the road to prosperity. This second wave of democratisation came and went; now, 30 years later, the pockets of adherence are dwindling or precarious. Populist and authoritarian regimes are on the rise; alternative modes of governance have become attractive. In the face of the market’s failure to lead to prosperity (and, rather, to greater inequality), the developmental state as driver of the economy is becoming the preferred option, one that requires an unshackling from constitutionalism – which, of course, provides ideological cover for the new imperial presidencies.

The winds of change have also reached the southern tip of Africa. In post-apartheid South Africa, constitutionalism was presented as the glue that would hold the new nation together as it underwent transformation from a society based on racial oppression to one based on substantive equality. However, after nearly three decades, the constitutional glue is under close scrutiny because some argue that it keeps social and economic apartheid intact; what is advocated is that government play a greater role in undoing inequality in social and economic fields. The rule of law thus is fraying at the edges. Even the Constitutional Court, as the last bastion of constitutionalism, is under attack.

After almost 30 years, constitutionalism is at a crossroads. At the ANC’s five-yearly national conference in 16–20 December 2022, what was to be decided was not only the party’s leadership but the future of constitutionalism as a policy directive for government. The expectation was that Cyril Ramaphosa’s presidency would be challenged by a faction in the ANC that coalesced around anticonstitutionalism rhetoric. In the end, Ramaphosa was successful, but in the wake of the May 2024 national and provincial elections, the replacement of constitutional supremacy by parliamentary supremacy became the official policy of what is

now the country’s official opposition in Parliament.

Questioning constitutionalism’s orthodox components

A frequently raised question is whether the turn against constitutionalism globally is also a valid critique of the core elements of constitutionalism. Even in established liberal democracies, the efficacy of these element is under scrutiny.

Democracy

Although democratic governance is a cornerstone of constitutionalism, we see a disenchantment with the practice of democracy. Ordinary people experience alienation from the political class, a class which appears to be there for no other reason than gaining economic advantage in increasingly unequal societies. Trust in the ability of parliaments (traditionally the great democratic institution) to hold the executive to account is low; instead, populism is seen as an effective response. In the Global South, an individualistic view of political engagement competes with a more communitarian worldview, with liberal assumptions about rational choice and one-person-one-vote being undercut by assertions of group identity. In the process, the slowness, the deliberateness, of democratic decision-making is forfeited in exchange for the quick decisiveness of powerful presidencies acting without restraint.

Separation of powers

The separation of the three branches of government – legislature, executive and judiciary – has been a hallmark of limited government in that it entails a system of checks and balances between the three. This Montesquieuan view of government is premised on a balancing of powers in which no single branch dominates the others. The standard critique concerns the dominance by the executive of the legislature in terms of rules, but, equally importantly, due to single political party hegemony in both.

The poor account-holding performance of parliaments has been augmented by the ‘fourth branch’ of government – independent institutions protecting constitutional democracy, such as ombuds, human rights commissions, auditorsgeneral, and the like. The disdain for populist economics sees the emergence of constitutionally protected independent central banks mandated

to guard the health of their currencies. Questions about the democratic accountability of the fourth branch abound. More generally, the separateness of the four branches has become fuzzy; in populist and authoritarian regimes, power by definition has shifted to the executive, which in turn has decreased the powers of those institutions to whom it should account – parliament, the courts, and the ‘fourth branch’.

Human rights

The expansion of constitutions in the 20th century to regulate the relationship between the state and its citizens through bills of rights is now a standard component of constitutionalism. The range of rights has increased, affording protection to groups such as women and gender, social, cultural and religious minorities. However, not only has there been backsliding on human rights commitments across the globe, but basic concepts in regard to rights have come under scrutiny.

The central constitutional commitment to equality has not prevented the growth of inequality in wealth distribution, where a minute proportion of the population owns an excessively disproportionate stake in the economy. The very notion of the rights of the individual – the pursuit by each of his or her own happiness – minimises social solidarity and the common good. In response, then, to the market’s failure to provide an effective distribution of a basic income and amenities, socio-economic rights have been earmarked to fill the gap. Some scholars argue that a fourth element should be added to constitutionalism: a transformative or developmental one, in which the goal is equal citizenship and it is pursued through, among other legal measures, enforceable socio-economic rights and substantive equality.

The question has also been raised of whether the rights discourse is the appropriate or most effective vehicle for addressing new global and national challenges such as global warming, automation and joblessness, and transnational market regulation.

Rule of law: Constitutional supremacy and judicial review

Constitutional supremacy and judicial review are seen as the final bastions of constitutionalism – as the place where theory meets practice. Judicial review is, however, varied in the West and challenged in the Global South. Where constitutions

are ambitious and aspirational (and where judicial review is indeed practised), the judiciary tends to wind up engaging with policy matters. The openendedness of socio-economic rights and judicial activism on this score has led to accusations that the courts are acting in breach of the separationof-powers doctrine. ‘Judicial adventurism’ has thus further strained the relationship between the courts and the other two branches of government, with the courts being accused of going beyond the constitutional interpretation of ambiguous text and instead ‘informally amending’ them by either ignoring the text or rewriting it.

The more independent the stance of the courts, the greater the populist claims that are made about their unaccountability to the people and contribution to the democratic deficit. Making the judiciary subservient to the executive becomes the inevitable goal; through various devices (including the appointment and dismissal of judges), judicial independence and impartiality are undermined.

Federal governance

Federalism brings all three elements of constitutionalism to the fore. Federal orthodoxy holds that each order of government is responsible to its respective electorate, something which, in the case of subnational governments, deepens democracy. Because the constitutional division of powers lies at the heart of a federal system, such division – in which each order is given final decision-making powers over range of policy fields – is itself a limitation on centralised governance and potential abuse of executive power. Moreover, since the division of powers and finances is complex and requires a rule-based system, functioning federations depend on the usual measures and methods characteristic of the rule of law.

Yet despite the longevity of various federations, federalism as a system of governance is in some cases under strain. In established federations, trends towards centralisation, particularly in populist and authoritarian contexts, are a common source of complaint. Here, the notion of shared rule becomes threadbare when the second house of parliament, designed to represent subnational governments or communities, does not function as intended but is yet another locus of power struggle between national political parties. Federalism is a system in which negotiation and compromise are the dominant method of making

decisions, but it is a method which is becoming the exception rather than the rule. How, then, is this system of governance able to deal with new international social and economic crises, such as global pandemics and climate change?

Despite such questions about the functionality of federal systems, federalism has become the last-resort solution for deeply divided countries, one in which, in multinational countries, the ethos is meant to trump the demos. However, in new federations formed to hold countries together and end conflict and civil war, the very basics of constitutionalism are, almost axiomatically, absent. There have thus been precious few countries where federalism has played its intended role: new federal attempts follow past failures with regularity. It is an inherently futile exercise, or are there different bases on which federal elements could be used to secure peace?

Decentralisation

Decentralisation in the form of local governments is formally the outer edge of constitutionalism. Often, such governments are neither shielded by a modicum of constitutional protection, nor regarded as partners in intergovernmental relations, and operate instead in terms of rules

set by the central or higher-order subnational government, or both. Yet they are crucial to the vitality of constitutionalism, providing, as they do, the space for bottom-up democracy and serving to meet the basic needs of communities.

With mass urbanisation already completed in the North and now in progress in the Global South, cities are left to face major social and economic challenges. How do city governments integrate large sectors of inhabitants that feel alienated from mainstream politics? How can cities manage to be both the locus of economic development, on the one hand, and the site of poverty and stark inequality, on the other? How do cities cope with major environmental issues such as climate change?

With these tasks on the table, the call is for major cities to be constitutionally recognised players because they house the majority of the population, a population which also contributes the most to economic production. They want to be part of the intergovernmental structures that make decisions which affect them as well as the country as a whole.

Mode of engaging in conversations

The mode of interaction among participants was ‘conversation’ or dialogue. It was not the usual format in which individual papers are delivered and followed by Q&A and comments. Nor were the conversations free-for-all talking: they were loosely structured and guided by a moderator, with the lead-in speaker of a session being followed by a panel of commentators and, finally, open discussion.

Lead-in speakers each prepared a short text (of approximately 3,000 words) setting out the challenges and then the ideas that would ignite debate. Footnoting was optional. These texts were circulated among the participants two weeks before the conference.

A panel of commentators was allocated to each session topic. Each panelist prepared a one-pager (of 500 words) commenting on the lead-in piece of the session. The focus was on points of agreement, points of disagreement (matters of nuance), and issues that had been missed. The panelists gave their responses one week before the conference, thus formally beginning the conversations even prior to the gathering.

Fireside storytelling

Each of the participants has vast experience in constitutional law, governance, and

constitutionalism. What the conference sought to explore through the conversations was how our work and intellectual engagement in governance and constitutionalism is grounded in our lived experience. The formal sessions thus flowed into fireside storytelling. After dinner each evening, participants were invited to join the relaxed, informal atmosphere of a fireside and share personal stories on the following: Why has our intellectual curiosity been captured by constitutionalism, federalism and decentralisation? How have our personal engagements with matters related to governance and constitutionalism influenced our thinking and actions? What lessons have we learnt from our experiences? Have such engagements influenced our intellectual pursuits? Overall, can a personal narrative form part of our intellectual inquiries?

Participants were later asked to squeeze their stories into a short essay (of at least 500 words), a request that most of them generously complied with.

CHAPTER 2:

Constitutionalism and its Critics

Lead-in: Theunis Roux

Introduction

Constitutionalism – of the liberal (and arguably,1 the only) sort – has seen better days. In the 30 years since its seeming triumph at the end of the Cold War, its stocks have fallen sharply. In the more multipolar world in which we find ourselves today, the idea that societies are best governed by written constitutions enforced by an independent judiciary is subject to at least four lines of critique.

First, there is the view that liberal constitutionalism’s juriscentrism has undermined the role of democratic legislatures and caused a host of other governance problems. This line of critique has a long history, dating back to debates in the United States from the 1960s over the so-called ‘counter-majoritarian difficulty’.2 But it is being pressed again now with renewed vigour, especially in the light of the US Supreme Court’s decision in Dobbs, 3 which constitutional-review sceptics have seized on as a vindication of their long-held views.

Secondly, there is the left critique of liberal constitutionalism, and especially its role in facilitating – or at least failing to prevent – the post-1980 rise in inequality. One key thinker here is Samuel Moyn,4 who has charged liberal constitutionalists with settling for a minimum floor of welfare provision rather than the rough equality of material wealth that their professed commitment to social justice requires. Another is Wendy Brown, whose reworking of Michel Foucault’s ideas on neoliberalism sweeps up liberal constitutionalism in its wake. Like the political constitutionalists’ complaint, this line of critique also has a long pedigree, going back at least as far as Karl Marx’s essay ‘On the Jewish Question’.

Thirdly, there is the ‘critique in action’ of populist governments around the world, but especially in Eastern Europe, as they have variously replaced or emasculated the liberal constitutions that were adopted after 1989. This line of critique has few scholarly defenders, in the English-speaking world at least, but erstwhile fans of liberal constitutionalism, like Ivan Krastev and Stephen Holmes, have decried what they now regard as the hubris of the post-1989 attempt to extend liberal constitutionalism to societies that lacked the political culture required to support it.

Finally, there is the emerging decolonial critique of liberal constitutionalism. This is particularly strong in countries like India and South Africa, whose constitutions were once thought to exemplify a new, progressive, style of ‘post-liberal’ or ‘transformative’ constitutionalism, but which are now being charged with adopting Western-style constitutions that prolonged the colonial past into the postcolonial present.

There are some overlaps between these critiques, and one might also question how novel and/or truly devastating they are. But my brief here is not to launch a defence of constitutionalism, but rather to lay out the critiques as fairly as I can and then to suggest some points for discussion. To that end, I start with a brief account of constitutionalism, so that it is clear what we are talking about, before moving to the four critiques and the issues arising from them.

What is constitutionalism?

To understand the critiques, we need to have some baseline understanding of what is being critiqued. That in itself presents an interesting challenge because there is no clear agreement on what constitutionalism means and whether there is just one or many varieties of it. The two poles on a continuum of views are occupied at the one end by Martin Loughlin, whose most recent book argues for a precise understanding of constitutionalism, and at the other end by scholars like Günter Frankenberg, Rosalind Dixon and David Landau, who accept the existence of many varieties of constitutionalism and even the phenomenon of ‘adjectival constitutionalism’.

Loughlin, for his part, is adamant that ‘constitutionalism’ must be understood in a very particular way, that is, as an ‘ideology’ about the nature and purposes of constitutional government that first started forming in the Philadelphia State House 250 years ago and has since gone on to conquer the world – with what he regards as malign consequences.5 The precondition for the emergence of this ideology, Loughlin contends, is the substitution of the original idea of constitutional government as being about the evolving political traditions of a people with the idea of constitutional government as requiring the adoption of a written constitution. With that, the ideology of constitutionalism was unleashed – a cluster of legitimating ideas which has progressively spread around the world to justify the central role played by the judiciary in enforcing the observance of fundamental political values. For Loughlin, as more fully elaborated in 3.1 below, this shift is deeply destructive of the original idea of ‘constitutional democracy’. He is insistent at the same time that there is only one hegemonic ideology of constitutionalism – the one that began in the US in 1787. All the other constitutionalisms, Loughlin argues – such as ‘popular’ or ‘authoritarian constitutionalism’ – are ‘misnomers … antithetical to the actual meaning of constitutionalism’.6

In stark contrast to this, Frankenberg prefers a much more open definition of constitutionalism as ‘a set of constitutional ideas and institutions mediating the establishment and exercise of power’.7 Frankenberg’s stated purpose in proposing this broad definition is to ‘prevent introducing the Western notion of constitutionalism in the guise of a universal understanding’.8 Having made that move, he proceeds to classify the various ‘varieties of constitutionalism’, from ‘political’ to ‘transformative’. Dixon and Landau in their

paper on ‘Adjectival Constitutionalism’ pursue a somewhat similar approach, although their purpose is different.9 For Dixon and Landau, the intriguing thing about the proliferation of different alleged types of constitutionalism is how they overlap and interact with each other. The authors are also interested in examining the ‘potential gap between constitutionalism as model and constitutionalism as discourse’.

I myself am inclined to think that Loughlin is right about there being a central idea of constitutionalism, but wrong in his depiction of it as a totalising ideology. To my mind, constitutionalism is intimately bound up with the liberal tradition of political thought in so far as all of its fundamental precepts – such as the rule of law and the separation of powers – are precepts that emanate from that tradition. The terms ‘liberal constitutionalism’ and ‘constitutionalism’ are thus synonymous in my view. But at the same time constitutionalism is a broad church capable of accommodating a wide variety of political ideologies, from US-style political conservatism on the right to German-style social democracy on the left. Liberal constitutions likewise come in different shapes and sizes, from the opentextured American variant to the highly detailed Indian variant.

What connects all these constitutions and justifies classifying them as belonging to a single tradition is that they are all organised around the same core concepts, including democracy, the rule of law, judicial independence, and the separation of powers. The reason, in turn, that constitutionalism is capable of accommodating such a wide variety of political ideologies is that the meaning of these core concepts is underspecified and ‘essentially contested’.10 This is true both internally within a single constitutionalist tradition (think of the contrasting liberal and conservative takes on the US Constitution’s founding ideals) and within the global tradition of constitutionalism as a whole (the characteristically American versus German versus Indian way of thinking about the relationship between these core concepts).

This is the feature of constitutionalism that is crucially lacking in Loughlin’s account. While constitutionalism may fairly be described as an ideology in so far as its core concepts function as a cluster of legitimating ideas, Loughlin’s depiction of it as a hegemonic discourse with fixed parameters ignores the contested nature of constitutionalism’s core concepts and the internal disagreement and regional variation that this produces. The essence of constitutionalism, which it gets from liberalism more generally, is

an aversion to dogmatic truths and an insistence that all knowledge is provisional and subject to revision in the light of experience.

This is true as much of constitutionalism’s core concepts as it is of its institutional prescriptions. To give one brief example, even so fundamental a doctrine as the separation of powers has over the last 20 years undergone considerable revision as constitutionalism has accommodated the idea of a fourth accountability branch of government. Far from being dogmatic truths (as this example illustrates), constitutionalism’s institutional prescriptions are revisable conjectures about what forms of governance are most apt to promote human flourishing in particular places at particular times.

Space precludes going into further detail on this point, so let me just list what I think are constitutionalism’s five main attributes: (1) its organisation around a series of deliberately underspecified and contestable political principles; (2) its experimentalism; (3) its capacity to be used to drive a particular kind of social change (i.e., one that presses down on its core principles to suggest the need for their reconceptualisation in the light of experience); (4) its inherently comparative nature; and (5) its claim to universalism.

The four critiques

The

political constitutionalist critique

The first line of critique, represented by Loughlin’s work (even though he himself rejects the label)11 is from the side of ‘political constitutionalism’. The term was coined by Richard Bellamy as a way of distinguishing the traditional British understanding of constitutionalism from the judge-led American variant.12 In so far as it questions the de-democratising effects of a constitutional system that gives judges the power to enforce fundamental political values, this line of critique also connects to the older American debate on the ‘counter-majoritarian difficulty’.13 Other contemporary scholars espousing variants of this critique are Mark Tushnet14 and Jeremy Waldron.15

This line of critique is, I am certain, very familiar to everyone, and thus I won’t elaborate on it here.16 The interesting contemporary phenomenon in any event is the way that proponents of the original American version of the critique, such as Tushnet, are today making common cause with

proponents of the British version, such as Loughlin. In the wake of the US Supreme Court’s decision in Dobbs, 17 Tushnet has written an adulatory review of Loughlin’s Against Constitutionalism18 in which he agrees with the central claim made in that book that judge-centred constitutionalism has had de-democratising effects.

In this way, in a curious bending-back arc of history, British scholars who can be read as arguing that constitutional democracy took a wrong turning in 1787 are making common cause with American scholars dismayed at the implosion of their country’s system of judicial review. I am no defender of the American system myself. My only complaint is that the triumphalism of these critics ignores the very different post-World War II conception of constitutionalism that emerged in Germany, India, and, more recently, South Africa. There is a tendency in this line of criticism to impute all the problems of the American system of judicial review to the tradition of constitutionalism as a whole. That, I think, is a serious error.

The left critique

For the left, constitutionalism has from its very inception had an economic inequality problem – a vulnerability to the charge that its preference for stable, constitutionally limited government masks the unjust distribution of material resources. In his famous essay ‘On the Jewish Question’, Marx laid out the initial (and still, to some, attractive) basis for this critique.19 Rather than reconnecting man to his ‘species being’, Marx argued, the constitutions adopted in the United States and France at the end of the 18th century had merely effected a division between the ‘egoistic individual’ of civil society and the emancipated ‘citizen of the state’.20 Because the latter was subordinated to the former, the emancipation that these constitutions offered was not true ‘human emancipation’ but merely ‘political emancipation’. It was ‘man as bourgeois’, the economic actor in civil society, who was the real possessor of human rights.21 All that these constitutions had achieved, therefore, was to licence and legitimate the exploitation of the economically weak by the economically powerful, while simultaneously depriving the realm of politics of any effective means to do anything about it.

As the story is conventionally told, the rise of the welfare state over the course of the 20th century blunted this critique, with both Roosevelt’s New Deal and the Keynesian policies adopted in Europe after 1945 demonstrating that liberal

democracies were capable of mitigating the worst effects of free-market capitalism. As Thomas Piketty has shown,22 the period 1950–1980 was indeed associated with a reduction in economic inequality, as governments in Europe and North America used progressive taxation policies to redistribute the benefits of economic growth and fund expanded public health-care and education programmes. At least for a time then, liberal democracies appeared to be capable of reconciling their emphasis on political freedom with the demand for a just distribution of material resources.

From the 1980s, however, things began to change. For a range of reasons, both the Reagan administration in the United States and the conservative government of Margaret Thatcher in Britain began adopting policies that emphasised the value of GDP growth over economic equality. In part this had to do with the adoption of a more confrontational stance towards the Soviet Union, a stance that relied, inter alia, on these countries’ ability to outspend the latter militarily. Partly, also, the new approach had to do with the perceived exhaustion of the welfare-state model following a long period of economic stagnation in Britain and the natural, cyclical end of the New Deal regime in the US.

Whatever the exact precipitating factors, the new approach to governance drew on ideas that had been circulating in the US and Europe since the 1930s, but which, until then, had only been implemented in the Global South.23 Writing in 1978–79,24 on the cusp of the new era, Foucault identified two strands of thinking as being particularly influential: the ordo-liberalism of the Freiburg School in Germany and the neoliberalism of the Chicago School in the US (with the émigré Austrian economist, FA Hayek, the figure linking the two). Departing from Marx, Foucault saw these strands not as epiphenomenal to changes in the capitalist mode of production but as theoretical frames through which ‘the art of government’ was being deliberately re-thought. As they filtered into public policy debates in the 1970s, he argued, the two strands had coalesced into a distinct ‘governmental rationality’ – a new approach to governance based, inter alia, on challenging the traditional idea of labour as a factor of production.25 According to the new approach, individuals were no longer seen as ‘partner[s] of exchange’ but as ‘entrepreneurs’ of their own ‘human capital’.26 In consequence, neoliberal governance systems were capable of encompassing aspects of social life that

had hitherto been thought to be impervious to economic incentives.27 Indeed, entire policy sectors, like education and health, were now seen as governable according to market principles.28

Delivered as they were in 1978–79, Foucault’s lectures were ahead of their time, anticipating rather than examining the neoliberal policies that have since proliferated around the globe. In the contemporary literature, Wendy Brown is the scholar who has most explicitly built on Foucault’s ideas, extending his analysis to examine neoliberalism’s protean modern forms. In her first intervention on this topic,29 Brown focused on the impact of neoliberalism on democracy, and particularly the way that its technocratic prescriptions have infiltrated modern governance systems to displace traditional forms of democratic participation. In her second book,30 she developed this idea into a claim about the way that neoliberalism has not just undermined democracy but destroyed the social and political foundations that democratic societies require to function properly, at least on a liberal conception. Neoliberalism has achieved this, Brown argues, by collapsing the distinction between economy and society, on the one hand, and homo politicus and homo oeconomicus, on the other.31 Rather than subordinating the former to the latter, as Marx had said of the 18th -century liberal constitutions, neoliberalism has transformed the democratic citizens of liberal constitutionalism into market competitors in every aspect of their lives.32

The latter argument, in particular, is one that proponents of constitutionalism cannot afford to ignore. If Brown is correct, the fact that some liberal democracies are today waking up to the destructive impact of neoliberalism will make little difference. The assumption on which any proposed solution would need to be premised – the existence of informed, politically active citizens capable of controlling and limiting a distinct economic market – simply does not hold any more. With the destruction of the idea of a society independent of market relations and the supplanting of homo politicus by homo oeconomicus, the preconditions for the proper functioning of liberal constitutions are no longer (and never will again be) satisfied.33

A slightly different version of the contemporary left critique of liberal constitutionalism is associated with the work of Samuel Moyn. In his account of the human rights movement’s responsibility for the post-1980 rise in economic inequality, Moyn rejects the radical view, propounded by Susan Marks and others, that the movement provided

crucial legitimating cover for neoliberalism.34 But at the same time he does not think that it was entirely without blame. The correspondence between the rise of neoliberalism in the 1980s and the ascendance of human rights as the most important political idiom through which to express moral outrage is too close, Moyn thinks, not to raise questions about the relationship between the two.35

The answer, however, needs to be nuanced. In particular, it needs to take account of the different ways the dynamics of this relationship were evolving in different regions of the world. When the communist states of Eastern Europe collapsed, Moyn notes, the human rights movement focused on the civil and political rights that had been central to the Western critique of state socialism, and on issues of transitional justice. While Eastern European countries did not delete the social rights that had been a feature of their communist constitutions, these rights were associated with that discredited ideology.[36] Thus, when neoliberal policies were introduced, there was no obvious moral vocabulary available to condemn their consequences.37 In Latin America, on the other hand, the reason for the human rights movement’s failure to respond to the economic effects of neoliberalism was somewhat different. There, the most significant factor was that neoliberalism had been introduced relatively early, in the 1970s, at the beginning of Augusto Pinochet’s authoritarian rule in Chile. The glaring violations of civil and political rights perpetrated by the Pinochet regime tended to distract attention away from the economic effects of its neoliberal policies.38

Despite these differences, Moyn argues, one central theme can be lifted out. As neoliberalism spread across the globe, the human rights movement chose to emphasise the value of sufficiency over material equality.39 Provided that basic needs were being met, growing disparities in economic wealth were tolerated. For neoliberals themselves, such disparities were the price that had to be paid for lifting people out of poverty. That, after all, had been the lesson of the Chinese economic miracle.40 For the human rights movement, this example was less compelling, but the end result was the same: neoliberal economic growth strategies escaped censure as long as they met basic needs.41 This was not just a moral mistake, Moyn thinks, but a strategic one as well.42 If there is a single cause of the resurgence of populism over the last 10 years, it is that gross economic disparities have cast doubt on the

credibility of the liberal political establishment’s claim to be concerned about human welfare.43 In failing to challenge the skewed distributional consequences of neoliberalism, the humans rights movement contributed to this cynicism, and thus to the declining prestige of the moral sensibility on which their work depends.

While the focus of Moyn’s account falls on the role of the human rights movement rather than national constitutional systems, his argument has obvious implications for proponents of liberal constitutionalism. If Moyn is correct that human rights, and social and economic rights in particular,44 have done little to challenge the distributional consequences of neoliberalism, liberal constitutionalists need to consider whether the suite of institutional mechanisms they have been proposing is sufficient, not just in absolute moral terms but also in pragmatic terms. All around the globe, liberal constitutions that coexist with stark disparities in wealth are losing public support. It matters not whether these constitutions are in fact responsible for economic inequality when populist leaders of both the left and right have proven themselves to be adept at damning liberal constitutionalism by association. If liberal constitutionalism is to survive this threat, its proponents need to devise ways in which it can be re-oriented to combat the problem of economic inequality. Of course, this problem may not be something that any one country acting on its own can resolve. If so, it may be beyond the reach of any single national constitution, liberal or otherwise. But that simply widens the frame of analysis rather than absolving liberal constitutionalists of the need to respond.

The right-wing populist critique

The third main line of critique is a ‘critique in action’ in the sense that it takes the form of the right-wing populist revolt against liberal constitutionalism that has been sweeping the globe since the second decade of this century. The countries and political leaders or parties typically associated with this critique are Turkey (Recep Tayyip Erdoğan), Brazil (Jair Bolsonaro), India (Narendra Modi), the United States (Donald Trump), and Poland (PiS). While there is now a huge liberal constitutionalist literature on the phenomenon of right-wing populism,45 there are few scholarly elaborations of the populist critique from the perspective of that critique, that is, most treatments of the phenomenon, in English at least, are by liberal constitutionalists decrying the emergence of populism and proposing ways to combat it.46

One of the rare exceptions to this rule is the work of Adam Czarnota, who has started to develop an account of the populist reaction against liberal constitutionalism from a non-liberal (as opposed to illiberal) perspective. With the case of his native Poland particularly in mind, Czarnota contests the reduction of constitutionalism to liberal constitutionalism, which he regards as a postWorld War II phenomenon.47 Constitutionalism, Czarnota argues, should rather be understood as operating on three levels: ‘as a legal principle of the internal superiority of the constitution’, as an ‘ideology’ that ‘stresses the function of the constitution as a normative and institutional safeguard against arbitrary use of power’, and as a ‘focus of systematic empirical and theoretical investigation’.48 When approaching constitutionalism in that way, Czarnota argues, it is ‘difficult not to see some merit in populist arguments that indeed democracy has been restricted, and constitutional narratives reduced or rather transformed by and into the legalformalistic language of legal constitutionalism’.49 In addition to the de-democratising effects of judge-centred constitutionalism, the two other main drivers of populism, Czarnota argues, are a reaction to globalisation’s impact on national identity and a frustration with liberal constitutionalism’s seeming lack of attention to inequality, not just economic but also inequality of political participation.50 In this way, Czarnota’s work joins up aspects of the first and second lines of critique as an explanation for, and partial justification of, the populist reaction against liberal constitutionalism.

A second recent publication worth noting is Ivan Krastev and Stephen Holmes’s searing critique of the folly of post-1989 liberal-constitutionalist expansion in Eastern Europe.51 Writing as disillusioned (chastened?) constitutionalists, Krastev and Holmes point particularly to the rapidity with which liberal constitutions were adopted across Eastern Europe after the collapse of the Soviet Union. The main driver of this process, they argue, was not the upsurgence of a suppressed, autochthonous tradition of constitutionalism, but a desire to ‘imitate’ the political traditions of the West in the hope that this would secure rapid accession to the EU and the consequent transformation of these societies into normal liberal democracies. The folly of this line of thinking was to expect that mere imitation of the constitutional form of liberal democracy could stand in for the absence of a supportive political tradition. In most countries in Eastern Europe, they remind us, communism was

superimposed on exclusionary, illiberal political traditions. The mere stripping away of socialist legality, therefore, was insufficient to ground the new constitutions adopted.

The decolonial critique

The decolonial critique of liberal constitutionalism, while entangled in various ways with the left critique of economic inequality,52 pays particular attention to the cultural contingency of liberal constitutionalism’s core concepts, institutions, and values. At its simplest, the critique may be seen as an extrapolation of Marx’s argument about the false universalism of liberal human rights into a more general claim about liberal constitutionalism’s parochial origins in the European Enlightenment. Rather than a transcultural tradition of thinking about the conditions for human flourishing, the critique goes, liberal constitutionalism is simply the unilateral projection of a Western conception of good governance onto societies for whom that conception has little resonance or intrinsic significance.53 Worse, the unthinking promotion around the globe of this mode of governance perpetuates and legitimates the still unfinished project of Western cultural and economic imperialism.54

The beginnings of this critique can be traced to the post-World War II decolonisation process in Africa and Asia and the efforts at the time to establish a counter-hegemonic, Third World perspective on the liberal international order.55 While this initiative ran out of steam in the 1980s, the underlying ideas have flourished in academia, first in the form of postcolonial studies and latterly under the rubric of the Global South research agenda in the humanities and social sciences.56 Among legal academics, this agenda is now firmly established in the Third World Approach to International Law (TWAIL).57 Although a similar approach is taking a little longer to find a foothold in comparative constitutional law, there have been several important publications over the last few years, indicating that the decolonial critique is gaining momentum there, too.58

In its contemporary form, the decolonial critique of liberal constitutionalism is particularly prominent in India and South Africa. The simultaneous emergence of the critique in those two countries is not an arbitrary coincidence, but a function of the fact that their constitutions were long regarded as icons of a certain style of Southern democratic constitutionalism. The 1950 Indian Constitution was thus the first postcolonial constitution to emerge from a prolonged meditation, in the

Constituent Assembly process from 1946–1949, on how best to adapt liberal constitutionalism to the circumstances of the Global South.59 After the 1975–1977 Emergency, the Supreme Court’s legitimacy was restored on the back of its public interest litigation jurisprudence, which many saw as a vindication of constitutionalism’s ability to deliver meaningful remedies to the poor and the marginalised. The 1996 South African Constitution, drawing on this legacy, included a range of justiciable socio-economic rights, and in this instance, too, the Constitutional Court was initially praised for its sensitive handling of its mandate.60 Until about 2010 or so, it would have been hard for even the most determined opponents of these two constitutions to deny that they represented thoughtful, locally driven attempts to develop a meaningful form of democratic constitutionalism adapted to the challenges of the Global South.61

Just more than 10 years later, the situation has changed completely. In the more multipolar world of the 2020s, two constitutions that were once celebrated as triumphs of indigenous creativity are being portrayed as prime examples of epistemic silencing.62 Far from being authentic expressions of their respective people’s democratic will (so the decolonial critique goes), the Indian and South African Constitutions reflect the hegemonic hold of Western governance models at the time they were adopted. In India’s case, that was at the end of the Second World War, when the victory of the Allied forces had seemingly vindicated the superiority of liberal democracy. In South Africa, the Constitution was drafted at the zenith of Western geopolitical power following the collapse of the Soviet Union. In both instances, decolonial critics say, pro-Western political elites seized on this temporary shift to press for the adoption of what were essentially liberal constitutions. In so doing, they pulled off a confidence trick for the ages – successfully giving the appearance of creating homegrown constitutions while in fact entrenching the social and economic structures, and more importantly, the conceptual landscape, of colonialism.63 While arising in very different contexts, the Indian and South African versions of this decolonial critique have certain common features.

First, the premise of the decolonial critique in both countries is that the constitution in question is a liberal constitution.64 This point is significant since, on the orthodox view of what happened, it is not at all obvious that the Indian and South African Constitution should be classified in this way. For example, Karl Klare, whose reading of the 1996

South African Constitution has proven influential, is adamant that it should be understood as a ‘postliberal’ document.65 Likewise, commentators on the Indian Constitution differ about its status as a liberal constitution, with some coming down in favour of that view and others categorising it differently.66 This disagreement, of course, is partly about differing conceptions of the scope of the liberal-constitutionalist tradition. The more capacious your definition, the more likely you are to classify both constitutions as liberal. But it is still noteworthy that, for the Indian and South African constitutions’ decolonial critics, there is no room for doubt on this score: both are clearly classifiable as liberal constitutions, and that is in part why they are liable to decolonial critique.

The definitional move is in this sense essential to the critique but also a question-beginning aspect of the critique. ‘Essential’ because tarring the Indian and South African constitutions with the brush of liberal constitutionalism enables decolonial critics to channel a lot of the international dissatisfaction with that tradition, in both the Global South and Global North, into their critique. But ‘question-begging’ because, according to the orthodox narrative, the Indian and South African constitutions extended the liberal constitutionalist tradition beyond the West, decolonising it and addressing many of the traditional criticisms made of it. On this alternative view, merely labelling these constitutions as liberal does not settle the question of their coloniality.

The second point worth noting is that the decolonial critique is both an active feature of political discourse in India and South Africa and the subject of scholarly writing. These two versions of the critique are not unrelated, but this does not mean that they should be tendentiously equated with each other. As it figures in political discourse in India and South Africa, the decolonial critique is relatively easy to dismiss because it is being used in ways that critical left commentators would likely agree are troublesome. In India, the decolonial critique has thus been deployed to invoke the idea of an authentic indigenous people whose political preferences (about religious accommodation in particular) are being stifled by a Constitution made under the pernicious influence of Western ideas. In this form, the critique is part of an unapologetically illiberal political discourse aimed at the construction of a Hindu rashtra. It would be a simple enough matter to condemn the entire decolonial critique in India by association with this exclusionary political project. In South Africa, similarly, the critique is

being wielded in the hands of politicians deeply implicated in that country’s recent history of corruption and misgovernance. It is therefore easy to dismiss as populist political posturing. But that would again be simplistic and fail to grapple with the seriousness of the critique in its scholarly form.

The third and last point worth briefly emphasising is that the decolonial critique in both India and South Africa draws on the idea of ‘decoloniality’ as elaborated in the work of Aníbal Quijano,67 Boaventura de Sousa Santos,68 Walter Mignolo, and Catherine E Walsh.69 Spreading over the last two decades from its origins in Latin America, this idea, with its emphasis on the longue durée – the long-term impact of colonialism, not just in material but epistemic terms – has provided a renewed focus for postcolonial studies in the Global South, and the decolonial critique of the Indian and South African Constitutions in particular. That is likely because both of those countries went through what were meant to be transformative constitution-making moments, only to find themselves not as transformed as many would have hoped. In South Africa, the notion of ‘decoloniality’ has struck a particular chord with critical left scholars. In India, it has been explicitly drawn on in a major popular account written from an ethno-religious perspective.70 That difference is interesting and worth interrogating in its own right. But for now, the point is that the decolonial critique in both countries takes inspiration from this common source.

The fact that there are these shared features does not mean, of course, that the context for the critique inside the two countries is the same. The shared features just mentioned are interacting in complex ways with various domestic developments that are specific to each country. In India, the critique is associated with the rise of Hindu nationalism and the electoral success of the Bharatiya Janata Party (BJP). The BJP’s pathway to success has been founded in part on the dethroning of the previously dominant Congress Party, which is identified in the public mind with the religiously inclusive 1946–1949 constitutional settlement. But there is still a fair degree of public support for the Constitution as a symbol of Indian nationhood, along with various other reasons why a frontal assault on the Constitution is not currently in the BJP’s interests. There are also structural reasons why the critique in its specifically decolonial form (as opposed to postcolonial theory more generally) is not being pursued within academia. In that setting, the

decolonial critique is being driven mostly at the level of popular culture, by one very influential public commentator in particular.71

In South Africa, the domestic factors in play are somewhat different. They have less to do with the rise of ethno-nationalist populism and more to do with the implosion of the ANC’s credibility as the custodian of the national liberation project. Delegitimated by its association with rampant corruption and blamed for the underperformance of the South African economy, the ANC is starting to cede ground to a political party – the Economic Freedom Fighters (EFF) – that claims to be the intellectual heir to the Africanist strain in black liberation thought.72 As is the case in India, the 1996 Constitution is associated in this critique with the ANC’s long history of assimilationism – its origins as a movement for demanding the inclusion of black South Africans as full citizens in a postcolonial South African state. As that process of inclusion has foundered, the 1996 Constitution has become vulnerable to the charge that it has allowed for the co-optation of a small proportion of black South Africans into an essentially untransformed and still white-dominated society. Accordingly, what is required is a second transition –a ‘post-conquest’ constitution that will finally throw off the yoke of settler colonialism.73 In academia, this critique is being driven by a cadre of young, left-wing scholars who draw on a mix of Latin American decolonial theory, US critical race theory, and indigenous black consciousness writings.74 In its popular political version, the critique is mounted not only by the EFF, but also by ANC politicians keen to outflank the incumbent President, Cyril Ramaphosa, who has publicly identified himself as a constitutionalist.75

Some questions for discussion

Arising from the above summary of the four lines of critique (in addition, of course, to any views on whether the fourfold classification makes sense and whether the discussion is fair to each), some questions are left for discussion.

• What are common features of the four critiques?

There are obviously some overlaps between the critiques. In all four, constitutionalism is identified with liberal constitutionalism, which is characterised as centralising the role of the judiciary in enforcing fundamental political values. All four find this to be de-democratising, with slightly different emphases in each case.

Does the confluence of the four critiques on this issue strengthen them?

• Do any of the critiques contradict each other?

While not necessarily contradictory, there are some tensions between the critiques. The political constitutionalist critique, for example, in criticising liberal/legal constitutionalism’s de-democratising effects, doesn’t really clarify how its own proposed alternative (political constitutionalism or ‘constitutional democracy’ in Loughlin’s vocabulary) would address the problems that the left critique and the decolonial critique identify. The political constitutionalist critique appears to be an immanent critique in that sense, i.e., it is internal to the tradition of Western constitutionalism.

• How novel are the critiques?

As noted in the discussion, there are earlier antecedents for all four lines of critique. We might want to discuss what is unchanged and what is new about each of the critiques. What are the contemporary phenomena that in some cases are giving a new inflection to old lines of critique?

• Are there any obvious problems with the critiques?

One of the issues worthy of pursuit is the way in which the seemingly progressive decolonial critique has been flipped in India in service of an exclusionary, ethno-nationalist agenda. In South Africa, too, at the political level at least, decolonial rhetoric is used in sometimes dubious ways to shore up an anti-poor agenda (if you think that keeping corrupt politicians in power is invariably anti-poor). What is it about the decolonial critique that renders it vulnerable to abuse in this way?

• Are the critiques theoretically rather than empirically driven?

Another question we might want to pursue is the extent to which all of the critiques are theoretically rather than empirically driven. Is liberal constitutionalism really causing the problems that are identified, or are there other confounding variables?

COMMENT: John Mutakha Kangu

The theory of the concept of constitutionalism

The concept of constitutionalism derives from the concept of a constitution or constitutional law, which is partly defined as the law that seeks to organise and manage the state and/or state power, or organise and manage state governance and/or state government. Constitutionalism thus comprises the qualities and values that go into organising and managing the state and/or state power, as well as state governance and/or state governments, in a manner which ensures that state power and state governments are organised, managed and/or used to achieve the objectives for which they were introduced.

From this perspective, the state and state power – and state governance and state governments –are viewed as institutions which were introduced by human beings as they sought to organise themselves into political societies that aimed to enable them to survive and preserve themselves, since this is the ultimate objective of human life. Survival and self-preservation are what Theunis refers to in his presentation as ‘human flourishing’.

Given that human survival and preservation are highly dependent upon access to resources, these institutions must be seen as having been introduced partly as means of economic management and development of resources to generate more and equitable distribution to ensure the survival and preservation of all. From this perspective, some of the criticisms of constitutionalism discussed by Theunis must be seen as lamentations about the failure of constitutionalism to deliver on the objectives of these political institutions and the ultimate objective of human survival and self-preservation.

The objective/purposes of constitutionalism

Recognising the selfish nature of human beings and the corruptive nature of power that tends towards its abuse or misuse for personal benefit of those in power, the objective of constitutionalism is to institute mechanisms for the organisation and management of state power and state government to ensure adequate control and limitation of state power and/or state governments to achieve the aims of these institutions. Democracy, separation of powers,

checks and balances, the rule of law, and judicial review as elements of constitutionalism must thus be perceived as organisational and management mechanisms for control and limitation of state power.

The distinction and nexus between the theory of constitutionalism and its architecture and design

In seeking to understand the critics of constitutionalism, one needs to recognise that there is both a distinction and nexus between the theory of constitutionalism and the architecture and design of constitutionalism. This therefore calls for not only a proper understanding and conceptualisation of the theory of constitutionalism and all its elements, but also for proper understanding and choice of the best architecture and design mechanisms to be able to deliver on the objectives, including of devolution.

The limitations in the architecture and design of constitutionalism

One of the limitations in the architecture and design of constitutionalism that illustrates how poor conceptualisation of constitutionalism and its elements can lead to the inability of constitutionalism to deliver is the limited way in which orthodox constitutional scholarship conceptualises state power.

Often state power is conceptualised from a narrow institutional perspective that identifies only three aspects of state power – the legislative, executive, and judicial powers of the state. This normally fails to identify and recognise the two most important aspects of state power – the control of public finances or public expenditure, and the control of the state apparatus of force.

Constitution-making based on this narrow conceptualisation fails to create adequate checks and balances. Too much focus is placed on the separation of the legislative, executive, and judicial powers of the state, while very little is done about the control and limitation of the financial power of the state as well as the state apparatus of force.

These two often slide into the ambit of control by the executive power of the state, thus compromising checks and balances. Sometimes

the legislature becomes subservient to the executive due the fact that the executive controls the allocation of funds to it. Similarly, the judiciary may become subservient to the executive which controls the allocation of funds to it. In addition, the judiciary may render judgments and issue orders against the executive that end up not being enforced because the executive controls the state apparatus of force (such as the military, the police, and the intelligence services), elements of which may be required to enforce court orders.

Even federal or devolved systems of government sometimes fail to deliver on their promises on constitutionalism due to the fact that the financial system is designed in a manner that enables the executive of the national sphere of government to control the financial power of the state.

The challenges that constitutionalism faces

As we reflect on constitutionalism and its critics as discussed by Theunis, we need to start thinking critically about constitutionalism in the light of emerging challenges to it. I will single out two such challenges for discussion.

First, there is the challenge arising out of the inability of constitutionalism to midwife itself. Many of the critics of constitutionalism seem to complain that constitutionalism has been unable to transform society. For example, the decolonial critic of constitutionalism, the critic of transformative constitutionalism, the critic of constitutionalism in Eastern European countries, and the critic of constitutionalism in India and South Africa all seem to be lamenting the failure of constitutionalism to transform their respective societies. This raises the question of whether constitutionalism as a concept has failed, or whether it is the architecture and design of

the constitution which failed to provide for constitutionalism to be midwifed into meaningful operation.

Constitutions and constitutionalism might not be able to propel themselves. Constitution-makers must thus provide for the management of the transition of autocratic systems into systems that respect constitutionalism. Constitutions must provide for how the old order will be deconstructed and the new one enabled to take root. In many places, a lot of effort is put into the making of the new constitution, often with people from outside the old order taking control. However, once the new constitution is made, it is left to the old order and people from it, or people who have vested interests in the old order, to implement the new constitution. The old order is allowed a very critical role in midwifing the new order. Often the old order becomes reluctant to deconstruct itself and facilitate the construction of the new order. The old order resorts to business as usual or constructs the new order in its own image.

Secondly, there is the challenge that arises out of the nature of global life. Constitutionalism seems to have been conceptualised as a mechanism of control and limitation of state power confined in national states. However, modern life is now subject to very many factors and decisions that fall, and are made, outside the state. Many decisions that affect citizens of national states in fundamental ways are today made by multinationals that might not fall under the governance and control of national states and governments. This then poses serious challenges to constitutionalism as originally conceived. In an era of free markets, international markets wield far more power than national states are able to control and limit through constitutionalism.

COMMENT: Henk Kummeling

I have always seen constitutionalism as a fairly neutral term. It organises limited government in terms of preconditions, such as separation of powers, checks and balances, and fundamental rights. All of this is laid down in a written or unwritten constitution. Constitutionalism has no agenda and sets no agenda except a very limited negative one, namely the prevention of tyranny and arbitrary exercise of power.

Theunis Roux’s lead-in has raised serious questions for me (in my perception of constitutionalism). All the criticisms he describes suggest that in fact there is an agenda. But is it really the case that constitutionalism inherently promotes a juristocracy, affirms inequality, and maintains colonial relations, let alone that it actively strives for this? For the time being, I think it is mainly political ideology and politicians that enable and

promote desirable and undesirable developments within the framework of constitutionalism. The fact that there are undesirable developments seems to have little to do with the concept of constitutionalism as such.

And then we come to a fundamental question: Could and should constitutionalism be put at the service of ‘progress thinking’? For example, could and should it make a more active contribution to eliminating social inequality and combating the consequences of climate change? In short, should constitutionalism be given an agenda? Some kind of ‘new constitutionalism’? Assuming this to be so, it would require much stricter socioeconomic and cultural norms and an even firmer enforceability of these norms.

But two things are certain. First of all (constitutional) lawyers cannot do this alone. The substantive criteria for these new constitutional norms would have to come largely from economists, climatologists, social scientists, etc. Secondly, such a development would not be possible without the help of politicians – those same politicians who, according to the critics in Theunis’s input, have not helped us particularly under the regime of ‘old constitutionalism’.

And that leads to my last question: Are constitutionalists willing to become activists, in the sense of entering or at least influencing the political arena in order to bring about the desired changes?

COMMENT: Xavier Philippe

As a preliminary remark, I would like to stress how controversial these issues have been among scholars – rather than the constitution-maker community – who look at constitutionalism as a topic in itself (rather than an object!) and tear apart constitutional lawyers. It is seldom a quiet debate!

My first comment focuses on the definition of constitutionalism. As Theunis emphasises, defining constitutionalism is difficult, and I would be inclined to consider that this part of the controversy lies in the idea that such a definition can never evolve. This is maybe more a question of linguistics than a legal question, but apart from being a starting-point idea – which I respect –limiting constitutionalism to the original definition enshrined in American democracy seems too narrow to me. Why should there be a unique and ‘true’ definition of constitutionalism? Are we not locked in where there is a unique definition?

Following this, my second comment relates to the ‘scope’ of constitutionalism. Why should we include with this word other concepts of constitutional law that interact with constitutionalism as such but which are separate from it? The danger would be putting everything under ‘constitutionalism’ and creating a global concept, which may be of interest for scholarly discussion but is not so useful for the daily implementation of constitutional law.

Looking at the criticisms of constitutionalism,

each of them illustrates some disagreement about the concept itself. In a sense, this is a rather healthy situation, as we always have to rethink the concepts we use. Looking at different perceptions gives us an idea of where these critics are coming from, and each of them focuses on a starting-point that is very different – sometimes it is historically based but mainly it is politically based. Constitutionalism becomes an argument, a theory rather than a tool. That being said, one can accept that the critics are offering alternative views on the concept, but they are neither right or wrong. It depends on the acceptance of this starting-point or not.

Nevertheless, what I do find interesting in these critiques is their ability to pinpoint the limits and pitfalls of constitutionalism. That is worthy! However, critiques are quite often made to convince readers to change their mind on the issue of constitutionalism, that is to say, to move from one belief to another, including sometimes to a kind of activism. This scarcely happens.

I do agree with the five main attributes of constitutionalism, even though, as Theunis puts it, they are sufficiently broad to accommodate a large variety of situations.

My third comment focuses on a certain kind of exaggeration each critique of constitutionalism uses to maximise its position. If we take the example of the political-constitutionalism critique regarding constitutional review, this is

understandable under one specific situation (the USA, for instance), but there are other cases where constitutional courts do not turn into a government of judges. The same applies, for instance, with the left criticism of constitutionalism: the idea that the poor will never get access to social redistribution is open to challenge in many a liberal or neoliberal democracy. How must we evaluate this kind of maximising effect on which criticisms of constitutionalism are built?

My final comment will take up Theunis’s final question: Are these critics more theoretically than empirically driven? I do believe that there is a kind of comfort in remaining within the boundaries of theoretical thinking. A few examples cannot be sufficient to assert the well-founded character of a given theory: the situation is far more complex. What I like about constitutionalism is its capacity to provide guidelines, to help decision-makers frame their practical methods of action. I would be

personally more inclined to support Frankenberg or Landau and Dixon’s positions.

This is maybe less exciting but more helpful. As Theunis mentions in his comments, none of these critics is able to offer a credible alternative to constitutionalism. You can be seduced by some aspects of these critical doctrines, but not to the point of giving up on what remains imperfect but nevertheless valuable. It helps to understand that constitutionalism is, first and foremost, aimed at providing a solution to stabilise a society with no trust in the rule of law. If no rules of the game are respected, then there is abundant space for arbitrary power. Is that what we really want? Constitutionalism should be regarded more as a set of procedural rules than a substantiative integrated system for exercising democratic power.

CHAPTER 3: Democracy:

Promises, Premises and Prospects

Lead-in:

Eva Maria Belser

Introduction: Human dignity as a right to human rights and democracy

Democratic states are characterised by the fact that the people govern themselves – either directly or indirectly. Laws and decisions which are binding on the people are made by the people. Democratic governance and its core principle of ‘one person one vote’ hence guarantee the identity of those who rule and those who are ruled.

Democratic governance, like human rights protection, is an expression of human dignity. The very concept is based on the idea that all human beings have an inherent and equal right to self-determine their lives and an inherent and equal right to co-determine the world they live in. They are neither mere means to the ends of others in the private sphere, nor mere objects of societal projects in the public sphere, but have views, plans, and priorities that matter. Human beings endowed with dignity thus take their own free decisions in their sphere of self-determination (self-rule), or, wherever their rights and freedoms are limited by law, contribute to the making of these laws in the sphere of co-determination (shared rule).

In democratic states, the right to individual and collective autonomy is therefore guaranteed, and every human is effectively shielded from heteronomy and other forms of undignified domination in which other actors decide upon a person’s life or determine the world the person lives in without regard to their aims and aspirations.

To guarantee dignity, citizens have an equal right to be free and an equal chance to impact on state decisions. Those who lose in democratic debates or elections – the political minorities – can turn to courts for rescue if a majority opts for a disproportionate limitation of their individual rights and freedoms (or abuses its power to curtail democratic rights). While the majority decides, minorities are thus protected by counter-majoritarian mechanisms; they are guaranteed basic rights and freedoms and fair chances to win the next democratic debate. In such a system, all can contribute fairly to joint decisions; no one risks losing life opportunities they cannot afford to lose (the core of human rights); and all can reasonably be expected to play by the shared rules.

Citizens, thus, on the one hand, enjoy rights and freedoms and, on the other, co-determine the limitation of them. In case the majority turns against their views, they also have the right to challenge these limitations by approaching independent courts as mediators between majorities, minorities and individuals. Human rights, democracy, and the rule of law, in particular the independence of the judiciary, work together to prevent domination, colonialisation of one form or the other, and any other situation violating human dignity.

If this is at stake, why are we witnessing a global democratic decline, and what can be done about it?

Democracy as a source of frustration: What are the reasons for democratic decline?

Caught together, hanged together: The interdependence of democracy, human rights, and the rule of law

A first line of argument consists in considering that democracy, human rights, and the rule of law are linked to the point that the one cannot exist without the others. If there is no guarantee of human rights, or no reliable mechanism to implement human and minority rights and freedoms against the will of the majority, no one and no minority can reasonably be expected to submit to majority rule. In a situation in which democracy can easily deteriorate into a populist ochlocracy (in which the majority commits power abuses), a (benign) aristocracy or monarchy with all its risk of deterioration might appear the better option (as it at least offers the chance to be part of the political elite or bribe it).

One the one hand, majoritarian rule without effective counter-majoritarian devices is a mode of governance highly unattractive to groups with only a limited chance of convincing the majority (i.e., ethnic, linguistic or religious minorities and other insular, isolated, marginalised or otherwise vulnerable groups). As these groups risk ending up as permanent losers in majoritarian processes, they are likely either to opt out of the process (or the state) and rely on parallel (extra-state) structures to protect their interests, or to use financial or other undemocratic mechanisms to defend their (legitimate or other) interests.

On the other hand, and even more importantly, those who are in power (e.g., political elites, leaders, parties, powerful minorities, oligarchs, and autocrats) are unlikely to accept democratic governance and the loss of power (i.e., genuine elections) if the (personal) risks involved are unreasonably high. If losing power exposes powerholders to arbitrary jeopardies, they will spoil democratic processes and, to this end, use all sorts of illiberal mechanisms. They may still pay lip service to democracy (it is diplomatically and economically unwise not to), but do not mean it. One may still accept the holding of regular elections but adopt mechanisms (and there are many) to preserve power or hand it over only to a group one trusts. Elections then are fake events, and cannot fulfil the promises of democratic governance.

Missing premises: Where there is no freedom, no equality, no solidarity, there is no democracy

Just as damaging to democratic process as the absence of counter-majoritarian protection and lack of political insurance is the absence of the premises necessary for democratic decisionmaking.

Just as damaging to democratic process as the absence of counter-majoritarian protection and lack of political insurance is the absence of the premises necessary for democratic decisionmaking.

There is no freedom: Freedom is a precondition for free political choice. However, the guarantee in the Universal Human Rights Declaration (1948) that ‘every man is born free’ is a fiction written down by wealthy and healthy white men. It is meaningless, if not a provocation to people who live in slavery, or suffer from forced or bonded labour or other forms of unfreedom, oppression, deprivation, or disability, as it is to children born in such situations. The Millennium Declaration (2000) declares that freedom is one of the fundamental values of the 21st century, but defines it very differently as the right of men and women ‘to live their lives and raise their children in dignity, free from hunger and from the fear of violence, oppression or injustice’. If this is freedom, most people are born unfree and await the fulfilment of their right to freedom. In the presence of hunger, fear, violence, oppression or injustice, political freedom turns into a shallow promise.

There is no equality: Democracy is based on the precondition that all citizens have the same right and opportunity to take part in the conduct of public affairs, to vote, and to be elected (article 25 UN Covenant on Civil and Political Rights). The human rights guarantee that ‘every man is born equal’ is, however, even further from the reality of most people than the idea of being born free. Inequalities of all kinds are omnipresent and, due to a lack of equal opportunities, tend to increase over people’s lifetimes. The law may be made by all (one person one vote), but some people clearly have more say than others. Laws are indebted to those who made them and tend to benefit their interests. Even if laws apply equally to all (formal equality), they often lead to unequal results (substantive inequality, indirect discrimination). The Millennium Declaration, in defining equality, states that ‘no individual and no nation must be denied the opportunity to benefit from development’. The Declaration, in the first place, turns the right to equality into a right to develop and to see equality established where it is absent, and, secondly, extends that right to nations (and notably not to states). Still, because the notion of formal equality

continues to prevail, even democratic laws tend to support the strong at the cost of the weak.

There is no solidarity: Of the three terms in the revolutionary slogan, ‘liberté, égalité, fraternité’, only two have survived. ‘Solidarity’ has not seriously been on the agenda of those who created the first liberal democracies, where brotherhood was limited to narrow circles of privileged men. If every man is born free and equal, a night-watchman state protecting the accomplishments of the successful few (and courts striking down disproportionate limitations of their rights and freedoms) is all that is needed. Solidarity would have been, and still is, the main interest of all the others. However, the Millennium Declaration brings solidarity back into play:

Global challenges must be managed in a way that distributes the costs and burdens fairly in accordance with basic principles of equity and social justice. Those who suffer or who benefit least deserve help from those who benefit most.

These demands have been integrated into constitutional law only very fragmentarily and are largely missing in international law. In the absence of redistribution and social justice, the functioning of democracy is severely hampered. The haves of the world – both individuals and nations – enjoy a dominant influence in national and international law, while the have-nots are mostly just trying to cope with everyday life.

Liberal democracies effectively prevent the state from interfering with what people have, but are tragically ineffective when it comes to providing social justice. Constitutionalism successfully limits government, yet it does not empower it to free people and nations, to establish substantive equality and development, and to distribute costs and burdens. Although we have seen the emergence of the developmental state, we have not yet witnessed the transformation of constitutionalism based on the idea of ‘limited government’ into a system guaranteeing ‘empowered government’.

As the premises of democracy are missing, majoritarian decision-making cannot fulfil its promises. Hence, one should not be surprised that the system works only (or mostly) for those who invented it in the first place and that democracies on the ground operate like autocracies or oligarchies. For most actors, investing in democratic participation is not a rational choice. Given the importance that power (social and economic) has for winning elections, powerless people have no reason to trust elections.

Governing by the people or for the people: The unsatisfactory satisfaction with procedural legitimacy

Frustration with democracy also stems from the fact that it tends to focus only on procedural matters (‘governance by the people’), while ignoring substantive ones (‘governance for the people’). On the one hand, the procedural turn stems from the insight that no one can decide what is good for the people and that those who believe they can, tend to develop autocratic or populist attitudes. On the other hand, the belief that governance by the people automatically leads to governance for the people reduces democracy to free and fair elections (governance by the people only – not governance for the people). Whatever the majority decides to do – and, more importantly, in view of the challenges mentioned above, whatever it decides not to do – is then considered sacrosanct. Yet, given that the premises for democracy are missing, the representatives of the people are unlikely to express the will of the people and act in their overall interests.

Even if there are no hiccups in the transmission of the will of the people into government actions and the translation of these actions into realities (and there usually are numerous realities), the will of people as expressed by elections is always, at best, the will of the majority of the people with the right to vote and the willingness to use it. Governance for the people, however, requires government in the interests of all, including political and other minorities and vulnerable individuals. While this might be ensured in the sphere of negative rights, it is not so in the sphere of positive rights.

The people: The lack of overlap between the government and the governed

In most democratic states, the people (the demos) are all those who hold citizenship in them. Exceptions to the rule of ‘one citizen one vote’ used to be broad in range (the exclusion of women, people of colour, socio-economically disadvantaged people, people with nomadic lifestyles, people who have committed crimes, etc.), but nowadays are narrow in most states (children, people with certain disabilities, etc.). There are good reasons to extend political rights to all (as required, for instance, by the UN Convention on the Rights of Persons with Disabilities, but not by the UN Convention on the Rights of the Child). More importantly, when ‘the people’ are defined as a group of people sharing the same citizenship, this does not do justice to democratic principles and human dignity.

First, human dignity requires that individuals be the subjects, not the objects, of rules, which entails that they have the right to co-determine the rules applied to them. Their human right to co-determination stems not from citizenship but from the fact of being bound by the rule (and often paying taxes and fees). It is therefore undemocratic that foreigners leading their lives alongside citizens are excluded from participation (and also that nationals living abroad permanently are not).

Secondly, all peoples have a right to selfdetermination guaranteed by international law. Both ‘peoples’ and the right to self-determination are traditionally defined narrowly in order, first, to reconcile self-determination with the principle of territorial integrity (and uti possidetis), and, secondly, to avoid interfering in internal affairs. As a result, the right of peoples to self-determination is seen as limited to citizens living in (arbitrarily determined) territories and having suffered saltwater colonisation. Democratic principles instead empower all peoples to govern themselves –permanently.

As such, the distinction between peoples and minorities must be challenged. Currently, whether a group constitutes the one or the other is determined only by history and historical borders. In terms of the human right to collective selfdetermination, ethnic, religious and linguistic minorities also enjoy a right to self-determination, at least in all matters crucial to their identity. It is unreasonable (and undemocratic) to expect these minorities to accept rules which they are unlikely to effectively co-determine (see above). Hence, in countries in which such minorities exist, dividing and sharing power between the different peoples (or minorities) in a way that respects the principle of subsidiarity and guarantees mechanisms for consensus (i.e., federalism) constitutes a requirement of democratic governance.

Thirdly, people have the right to determine (challenge and amend) the rules that are binding on them. Or, numerous governance decisions are not limited to those peoples and territories. Some governments (at least, more so than others) take decisions which (often negatively) affect peoples and territories that have not elected them and to which they are not accountable. The extraterritorial effects of government decisions severely hamper democratic governance and contribute to democratic frustration. In fields such as the climate and environment, security, health, development, taxation, human rights, and migration (in fact, most policy fields), there is no identity between

those who make the rules and those who are (de jure or de facto) bound by them. These peoples then suffer heteronomy – the opposite of selfdetermination – as they are bound by rules which they have not co-determined and which they cannot challenge democratically.

A globalised world hence leads not only to situations where governments have no choice other than to govern according to the TINA principle (‘There Is No Alternative’), but also to deeply undemocratic mismatches between those who govern and those who are governed. Democratic leaders can increase their chances of being re-elected in their countries by adopting policies externalising costs and burdens to other people’s territories. As long as one people is not opposed to harming other peoples, then limiting democratic accountability to states will continue to fuel national egoism and harm global solidarity (as well as good global governance).

Fourth, democratic governance is concerned merely with the current will of the majority of the people. The system of regular elections incentivises politicians to focus on short-term gains – even when these gains come at a cost to future generations. The question therefore is whether democratic governance as we understand it is fit to save the planet.

Democracy as a guarantee of good governance: What can allow for the self-governance of people?

Guaranteed together: The interdependence of democracy, human rights, and the rule of law revisited

Given the deep interdependency between democracy, human rights, and the rule of law, holding elections is unlikely to fulfil the promise of collective self-determination. In the absence of counter-majoritarian devices and political insurances, elections are likely to produce controlled ‘democracies’ frustrating the very ideas democracy stands for. Hence, democracy, human rights, and the rule of law must be seen and treated as an inseparable package which can advance only in lockstep.

This insight is not new. In a declaration adopted in 2012, the UN General Assembly reaffirmed that ‘human rights, the rule of law and democracy are interlinked and mutually reinforcing and … belong to the universal and indivisible core values and principles of the United Nations’. The practical

consequences of the affirmation are, however, still underexplored. The aim of advancing the three fundamental values together requires compromises and strategies on how to cope with shortcomings and minimise their impact on other spheres.

But the invocation of ‘universal values and principles’ is not helpful when it comes to making ‘dirty compromises’. Their negotiation requires the full disclosure of shortcomings in all fields (and the promise of support by international communities), as well as realistic plans as to how progress could be achieved. When it comes to motivating powerholders to accept genuine democratic competition, special political (and economic) promises might be necessary (even to those who have abused power). The design of golden parachutes for political elites clinging to power is not desirable from the perspective of equality and accountability, but the advancement of democracy might require it. In short, the interdependence of democracy, human rights, and the rule of law obliges one to think and act dirty. The desire not to compromise in the field of human rights might endanger progress in the field of democracy – and vice versa.

From the liberal to the social democracy: Freedom, equality, and solidarity

Democratic governance requires a shift from a formal to a material understanding of freedom and equality. Such a turn to substantive freedom and equality necessitates constitutionalising solidarity in a way that effectively guarantees genuine equality of opportunity (not outcome). Equality of opportunity must be created and maintained for individuals and peoples, and it requires the substantive redistribution of resources and wealth.

Liberalisation and globalisation, however, reinforce the opposite trend, and tend to increase economic and other differences between and within peoples. Free markets undoubtedly produce a bigger cake but also render it more difficult to divide it fairly. The greatest winners of globalisation, multinational enterprises and highly skilled individuals, see their tax burdens reduced and do not contribute fairly to compensating those who lose by the system and must adapt to new circumstances. The paradox of globalisation – producing a greater need for socioeconomic cushioning while limiting the capacity of states to provide it – hence has direct effects on democracy (see also below).

It follows from what has been said that, first, states must be empowered to free people from hunger, fear of violence, and oppression and guarantee equal chances for all. The current

focus on conservative constitutionalism and liberal democracy – preventing state actors from abusing their power by interfering with existing freedoms (and powers and resources) – must shift to a transformative constitutionalism and social democracy. Constitutions must oblige state actors to fulfil constitutional promises, to free people (from cultural cages, social anxieties, and economic emergencies), and not just respect but also protect and fulfil human rights for all. Democratic institutions hence must be redesigned to implement a new understanding of checks and balances – one focusing not only on preventing abusive interferences with existing rights and freedoms but also on overcoming abusive inactivity.

It follows, secondly, that international law must be rethought in ways envisaged by the Millennium Declaration. The latter’s chapters are dedicated to peace, security and disarmament; development and poverty eradication; protecting our common environment; human rights, democracy and good governance; protecting the vulnerable; meeting the special needs of Africa; and strengthening the UN. International institutions must be reinvented to be up to these crucial tasks. Given the enormous discrepancy between international law as it is and international law as it ought to be, a democratic global constitution-making process amending and improving the UN charter is a necessity.

The fact that the international community does not (yet) know how to design such process is not a sufficient justification for continuing to enforce an unfair system, as the deep interdependences of peoples and territories necessitate global rules. In fact, the principle of subsidiarity requires the delegation of powers to an upper level –and the making of shared rules – whenever states are incapable of fulfilling tasks or where uniformity is needed to reach the aims of global constitutionalism. The need for shared rules also entails the invention of new, fair and democratic ways of producing shared rules and of adopting and enforcing (federal) homogeneity requirements. The lack of a ‘coming-together’ of the nations of the world not only threatens global peace, global justice and the future of the planet, but also leaves to their own fate individuals, minorities, and peoples suffering (domestic) domination and other forms of power abuse – all of which betrays global values and principles.

In sum, both the interest in democratic governance and the absence of its premises force national and international law to undergo profound change. In both spheres, constitutionalism must be rethought and entrenched in different ways. Such

an endeavour requires, in the first place, a better understanding of how the path-dependency of law keeps favouring the privileged of the past, disadvantaging the vulnerable (individuals, peoples, continents), and harming the planet. Secondly, it involves a comprehensive renegotiation of the common rules and the way they are made and implemented – nationally and internationally.

Governing by the people and for the people: Substantive legitimacy

While it is commonly accepted that democratic governance involves much more than just free, fair and regular elections, there is a tendency to be satisfied by such a limited form of procedural legitimacy (‘governance by the people’). Elections tend to attract and favour privileged individuals and groups striving for power (and not necessarily for the common good); the equation of democracy with elections hence works in favour of small and power-prone elites. Most people are not keen to expose themselves to political power struggles, are not likely to win in-party selection processes, and cannot, or do not want to, invest in election campaigns. As a result, citizens are typically confronted with a limited choice between different (yet often very similar) individuals or parties fighting bare-knuckled to get or keep power. Under the surface of democracies, oligarchies and plutocracies (and other degenerative forms of aristocracies) are therefore looming.

One way of better attaining government by, of and for the people involves replacing elections with alternative mechanisms for selecting representatives, such as the use of a lottery. Appointing people by lottery decisions brings common people to the fore who do not seek power and who are not busy preparing for their re-election while supposedly representing others. Communities and states experimenting with the arbitrary selection of representatives document surprising results. Randomly selected people who have access to information and training, and who work and negotiate together, are capable of agreeing, of innovating, and of advancing the common good. Putting together a group of persons that reflects the diversity of peoples and empowering these persons to represent for a limited time also offers new perspectives for solving global issues.

Another way of improving democratic government and strengthening it beyond elections consists in understanding government by and for the people more broadly. The right to democracy then also entails a right to be informed timeously and

comprehensively; a right to be consulted in all matters, particularly those affecting an individual, minority, group or region; a right to speak up and agree or disagree; and a right be heard and be taken seriously – and not be treated as a mere object of decision-making (even if decisions are taken by majorities).

Direct democratic decision-making, when properly embedded, also offers promising venues for overcoming the representational deficits resulting from elections. After all, it is easier for citizens to determine their preferences in a specific policy field and directly express such preferences than it is to try and understand a person or party’s programme and assess its credibility as well as its likeliness of being implemented. Such democratic attitudes allow people to be involved continually in public affairs, to break through election circles (and their short-sightedness), and to reduce the risk of alienation between the government and the governed. They also minimise the danger that some segments of society (in particular marginalised groups and neglected regions) are sacrificed for the plans and ambitions of other groups and regions. Last but not least, a broad understanding of co-determination increases contributions to the marketplace of ideas and reduces pathdependency (as well as the repetition of mistakes).

In sum, there is a need to understand democratic governance more broadly and to rebalance procedural and substantive legitimacy. This requires thinking beyond elections and seeking other ways of producing congruency between the will of the people and government decisions.

Redefining the people: Matching the government and the governed

Improving democratic governance requires a redefinition of the subject of collective governance, the people, and a flexibilisation of such understanding in order to ensure the identity of the rule-makers and the rule-receivers.

As already mentioned, all individuals living together on a permanent basis must be part of ‘the people’ and have access to democratic decision-making. This includes children and persons with disabilities who are capable of participating in decisions, as well as foreigners sharing a common fate with citizens. The democratic principle of ‘no taxation without representation’ hence must be broadened into a principle preventing governance without participation.

As also discussed above, the right to selfdetermination must be guaranteed to all peoples

irrespective of whether or not they happen to have a state ‘of their own’. Denying this right subordinates the rights of people to govern themselves – the very foundation of democracy –to the randomness of history (and to the choices of those who dominated in the past and continue to profit from their historical role). The right to democracy hence belongs to all ethnic, cultural, religious and linguistic groups, nations, peoples or minorities who have a common identity (i.e., identity markers considered relevant) and a will to share a common future. Demoi enjoy the right to govern themselves in all matters they can deal with effectively and legitimately (self-rule), as well as a right to contribute to the common rules limiting their autonomy (shared rule). Hence, democratic governance must be thought of as operating on different tiers organised according to the principle of subsidiarity (for power-division) and the principle of consensus (for power-sharing).

The question, then, is how such general right of all peoples to govern themselves could be put in practice, considering the lacking (and decreasing) overlap between peoples and states (and regions). The answer ties democracy to federalism and other concepts of power-sharing, as well as to the need to do away with or overcome sovereignty concepts. Good domestic and global governance is being harmed by the legacy of the Westphalian peace, according to which anyone in power (e.g., autocrats or autocratic majorities) is allowed to deal with domestic matters sovereignly and without ‘foreign’ interference, and to decide sovereignly whether or not to ratify international norms (as well as whether to comply with such norms). There is hence a need to enforce the right

of all people to govern themselves – whether these people are national, subnational or transnational.

‘Nations large and small’ (as per the UN Charter) must have the right to deal with all matters which they can handle effectively and to decide on matters crucial for the protection and preservation of their identity (core of self-rule). The delimitation of autonomy and the making of common rules (and homogeneity clauses) must be guided by the principle of consensus and compromise, and ensure that all peoples can make their insights and wisdoms available and relevant (shared rule). In such a system, territorial borders – largely irrelevant for ideas, persons, goods, and resources – also lose their relevance to democratic governance.

More flexibility and a neglect of borders are also required, more broadly, to ensure the identity of those who govern and those who are being governed. In order for democracies to flourish, people must determine – directly or indirectly –the rules to which they are bound. This requires that the relevant people (those bound by and affected by a rule) are determined flexibly and dynamically. Depending on the rule at stake, the people to decide are the people frequenting (or financing) a school, using a park or hospital, or speaking a language. Democracies then operate within a multitude of functional, overlapping and competing jurisdictions. When global peace, security, biodiversity, or the common heritage of mankind is at stake, effective democratic governance depends on instruments and institutions guaranteeing global democracy and coordinating the different demoicracies operating under one common roof.

COMMENT: Yonatan Fessha

As far as representation, elections or allocations of power are concerned, there is no consensus as to which kinds of arrangements, or combinations of arrangements, provide the best available version of democracy. Eva Maria, it seems, has taken a substantive approach to democracy. She does not reduce democracy to a means of arranging and managing representative government in which the core principle – the rule of the people – is often equated with the rule of the majority. For her, democracy is not content-independent. There are fundamental values in the democratic enterprise which cannot be amended or destroyed by the majority government. What does that say about the democratic credentials of constitutional systems that do not allow courts or other countermajoritarian mechanisms to protect individuals and minorities from the ‘tyranny of the majority’?

As noted by Eva Maria, the inability of elections to ‘fulfil the promises of democratic governance’ is now well established. This is evident in the ever-declining number of individuals who bother to exercise their vote. Willy Mutunga, Kenya’s first Chief Justice, declared that ‘Kenya is a fake democracy where elections do not matter because the infrastructure of elections has been captured by the elites’. In fact, across the democratic world, electors have not got much for their votes. The scene of democratic governance is dominated by career politicians who use their power to protect and promote the narrow interests of small groups of powerful individuals and business interests. Political trust is very low, and the widespread sentiment is that people in government cannot be trusted. Does this suggest that the existential threat to democracy comes from capitalism throwing money at elections?

Eva Maria asserts that the lack of true democracy in a world that is not free means that one of the basic

premises of democratic governance is missing. Democracy means little to individuals who are not free. The lack of freedom adversely affects the exercise and enjoyment of constitutional rights. But what is the democratic promise of the alternatives to liberal democracy? Eva Maria wonders about the developmental state. The compatibility of the developmental state model with democratic governance has been widely contested. The experience of the East Asian developmental states suggests that the model tends to promote a governance system which is ‘hegemonic, centrist and interventionist’; this is often linked to the fact that the goal of achieving economic development relegates everything else, including democracy, to secondary importance. The idea of ‘replacing elections by alternative mechanisms of selecting representatives, such as the use of a ‘lottery’ is attractive, but it is not clear how such an arbitrary selection of selecting representatives can give us ‘a group of persons that reflects the diversity of peoples’.

Eva Maria links democracy with power-sharing and federalism. The need to give equal attention to competing majorities and the interests of ‘ethnic, cultural, religious and linguistic groups, nations, peoples or minorities’ is correctly highlighted, entailing a rejection of the view that ‘only the will and interests of the majority who voted in favour would prevail’. The democratically expressed wishes of the majority of the population of a particular group should not automatically trump all other majorities. But what should the implications of the democratically expressed wishes of a majority of a particular segment of the population be for the others? How do we deal with the seemingly conflicting wishes of competing majorities?

interests. The principle is justified on different grounds:

· It allows for the change of majorities: multiparty democracy ensures the competition of ideas, and is thus an effective accountability mechanism.

· In practice it allows for quick and decisive decisions (no need for long, cumbersome quests for compromises).

At the same time, majoritarian rule is open to critique:

While the focus is on equality among representatives, inequality pervades elections: in plurality systems (first-past-the-post), the ‘50 per cent plus one’ rule does not apply; in many electoral systems, rural votes count more than urban ones; and in practice, minority voters are systemically excluded. Majority rule thus does not enhance social solidarity but the opposite.

· Not only are minority voters excluded from decision-making, but the majority defines ‘the people’ whom they represent and whose interests they advance, which usually results in further inequality.

Is majoritarian rule an essential part of democratic governance, or merely a practical method of making decisions? Judicial review protecting minorities and individuals is seen as the foremost example of a counter-majoritarian mechanism. What else can be done? I agree with Eva Maria’s argument that where individual autonomy is

limited for the common good, making common rules to that end must be guided by the principle of consensus and compromise. Much more attention should, I suggest, be paid to counter-majoritarian decision-making in legislatures and executives through shared-rule mechanisms.

Democracy and the holders of political rights

In liberal theory of democracy, each voter is an individual whose autonomy (self-government) is guarded by constitutionalism. It assumes a homogeneous community the members of which in elections make rational policy choices as offered by political parties. This premise seldom holds true: communities are heterogeneous, and divided by numerous social and economic factors, most notably by identity – race, language, culture, religion, etc. Such identity markers are often more important than economic policy choices. At the same time, groups are claiming, in terms of international law, the right of self-determination including secession and establishing an own geographically defined nation-state.

Underlying this proposition (group rights) is the assumption of the immutability of such identity, locking persons in strictures not of their own making. Also, identity excludes other, equally important, interests. As Yash Ghai noted in critique of Kenya’s penchant for identity politics, they obfuscate the real interests that ordinary Kenyans have in common – the fight against poverty, inequality and marginalisation.

CHAPTER 4:

The Separation of Powers and Modern Constitutionalism

Lead-in:

Charles M Fombad

Introduction

The separation of powers is one of the most important theories of government and regulatory measures that constitutionalists have devised to deal with the omnipresent risk of arbitrary and tyrannical government. For centuries, it was seen as the best way of countering excessive concentration of powers, which is arguably one of the greatest impediments there are to the promotion of constitutionalism, good governance, democracy, and respect for the rule of law. The doctrine was considered so central to governance that, as long ago as the 18th century, the French revolutionaries declared in article 16 of their Declaration of the Rights of Man and of the Citizen of 1789 that any society in which the separation of powers is not observed ‘has no constitution’.

However, in spite of the doctrine’s long history and highly respectable pedigree, the abundant literature it has spawned shows that it is by no means a simple, immediately recognisable, and unambiguous set of generally accepted concepts. Many scholars, past and present, are unable to agree not only on what the doctrine means but on what its relevance to contemporary institutional ordering is. For example, Geoffrey Marshall, one of its strongest critics, feels that the doctrine is far too imprecise and incoherent to be of any use in the analysis or critique of constitutions.1 Likewise, the famous British constitutionalist, AV Dicey, referred to it as ‘the offspring of a double misconception’.2 In today’s deeply polarised and divided world, there is a real challenge in trying to reconcile the tensions inherent in a doctrine which, at national level, tries to play two dual and potentially contradictory roles: to some it confers powers and limits powers; to others, it provides for coordination and control; some say it provides for separation and supervision; others say it provides for separateness and interdependence; and for others yet, it provides for independent and interdependent powers.

Some critics of the doctrine argue that the classic triad of powers no longer reflects the political, social, and constitutional changes that have taken place since the doctrine was formulated several centuries ago. The purpose of this lead-in presentation is to identify, for purposes of provoking discussion, what the main challenges of the doctrine are today and what its prospects for the future are. But before we get to this, a few things need to be said about the theoretical foundations of the doctrine, its main forms in constitutional practice, and its objectives.

Theoretical foundations, main manifestations, and underlying objectives

Early traces of forms of separation of powers may be found in the works of many thinkers of the medieval period and Middle Ages who were searching for the secrets of good government. Whilst the roots of the doctrine may be traced to the numerous English writers and philosophers, it was John Locke, in his famous Second Treatise,3who articulated the modern doctrine. But credit for putting it in its modern scientific form goes to Montesquieu and his work, The Spirit of the Laws: Book XI 4 His ideas were later to substantially influence the French and American revolutions.5 Indeed, it is the American revolutionaries who, in drafting the US constitution, took the doctrine of separation of powers to its acme.6

Theoretical framing of the doctrine and its major manifestations

In its ‘pure’ and classic form, the doctrine of separation of powers is based on the fundamental idea that there are three separate, distinct, and independent functions of government – the legislative, the executive, and the judicial – which should be discharged by three separate and distinct organs: the legislature, the executive (or government), and the judiciary (or the courts). In this ‘pure’ sense, the doctrine, according to AW Bradley and KD Ewing, means at least three different things.7

The first is that the same person should not form part of more than one of the three branches of government. This implies, for example, that ministers should not sit in parliament, nor parliamentarians act as ministers. Secondly, one branch of government should not usurp or encroach upon the powers or work of another. This means, for instance, that the judiciary should be independent of the executive, and ministers should not be responsible to parliament. It also means that a person holding office in one branch of government should not owe his or her tenure to the will or preferences of persons in any of the other organs. Thus, the continuation in office or not of ministers or members of parliament should depend on the will of the electorate in general elections. Thirdly, one branch of government should not exercise the functions of another. For example, ministers should not have legislative powers. Although the doctrine has rarely been held or practised in this extreme form, it does represent a ‘benchmark’ or ‘ideal-type’ situation from which to appreciate its application today.

WB Gwyn has abstracted from historical experience a threefold typology into which modern governments that have adopted the doctrine of separation of powers can be classified.8 The first is the American system, which is the model and prototype of presidential government. This model is generally regarded as having gone further than any other in embodying the fundamentals of the doctrine of separation of powers and as coming the closest to the ‘pure’ form of separation of powers. Yet in spite of the apparently emphatic, and in some ways unqualified, terms in which the doctrine is expressed in the US Constitution, it is clear from a cursory examination of the relevant provisions that the regime contemplated is far from one of a rigid separation of powers. In the final analysis, the reality is that the US model of separation of powers is constructed around

[the] open recognition that particular functions belong primarily to a given organ whilst at the same time superimposing a power of limited interference by another organ in order to ensure that the former does not exercise its acknowledged functions in an arbitrary and despotic manner.9

The second type is the British parliamentary or Westminster model. This model appears to contradict the doctrine by fusing or concentrating powers. The close relationship between the legislature and executive means that there is no strict or effective separation of powers between them. Nevertheless, there remains a clear distinction between the legislative and executive functions; there is also an effective separation of the judiciary from the other two. William Wade has argued that in Britain the doctrine of separation of powers entails nothing more than having an independent judiciary.10 The crux of the British conception of the doctrine of separation of powers is that Parliament, the executive, and the judiciary each have their distinct and largely exclusive domain and that circumstances where the one exercises the functions of the other are the exception and dictated by practical necessity.11

The third type, which is now of historical interest more than anything else, is the assembly or convention government, which can be traced to England during the interregnum and France in the 1870s. There are, however, hybrids that combine elements of the first two models, the most prominent of which is the French Fifth Republic Constitution of 1958. It combines elements of a strong and elected president with a parliamentary system. An important feature of the French model is that any executive position is incompatible with a seat in Parliament, and vice versa.12 Nevertheless, with the judiciary largely subordinated to the executive, and with extensive law-making powers given to the executive, the doctrine of separation of powers in France entails little more than the distinction between the legislative and executive branches of government. As a form of parliamentary democracy, this system provides for such close cooperation between the executive and legislative branches that it renders any meaningful checks and balances between them ineffectual.

Rationale for the doctrine

Historically, five main reasons have been given for requiring that the legislative, executive, and judicial functions not be exercised by the same people: the rule of law; accountability; common interests; balancing of interests; and efficiency.13

These reasons basically summarise the different versions of the doctrine that have emerged over the centuries. The prevention of tyranny remains the common thread that unites all the five different historical justifications for separating the legislative, executive, and judicial functions of government.

Some thoughts on the general understanding of the doctrine

As noted earlier, the nature, role, and relevance of the doctrine of separation of powers remains a matter of considerable controversy, especially given that some scholars consider it irrelevant and obsolete. Yet although there are no generally accepted views on the precise meaning, nature and scope of the doctrine, certain aspects of it are widely accepted even if there is no unanimity on how to apply it in practice.

First, the overriding goal of preventing tyrannical and arbitrary government appears to be generally accepted. All the models try to do this by preventing a concentration of powers. But the history of modern constitutionalism, particularly the experience of France between the Fourth and Fifth Republics, shows how difficult it is in constitutional design to achieve a balance which ensures that each of the three branches has no more powers than it needs in order to function properly and effectively.14

Secondly, it is clear that separation of powers does not mean a rigid compartmentalisation of powers between the different branches of government. In fact, if this were to happen, it would very well paralyse government and lead to anarchy. The three models thus approach the matter in different ways.

The American approach is premised on the recognition that certain core functions must be exercised primarily by a particular branch of government, but with the other two branches allowed to interfere in a limited manner to prevent that branch from exercising its acknowledged functions in an abusive and arbitrary manner. This approach was shaped largely by the American colonial experience, the War of Independence, and the desire by the founding fathers of the constitution to prevent what they perceived as the excesses of the British system.

By contrast, the British system is premised on mutual dependence, rather than independence, between the executive and legislature, a state of affairs backed by a strong, independent judiciary. The French model, which has elements of both the

British and US model, is marked by a dominant executive branch that overshadows the other two branches. The French approach has also been shaped largely by history, in particular by the Gallic fear of ‘government by judges’ and by the bitter lessons of the Fourth Republic constitution, which provided a recipe for governmental instability.

The common denominator of the three approaches is the desire not so much to prevent interference as to ensure that such interference serves as a means of promoting accountability, transparency, and good governance. In other words, each branch should control and check the other in the exercise of its respective powers on the principle that le pouvoir arrête le pouvoir.

Challenges and prospects for the future

What is clear today is that the doctrine of separation of powers is still very much a feature of modern constitutions and not just some abstract theoretical and philosophical construct developed centuries ago. Its main goal, the prevention of tyranny, is as compelling today as it was centuries ago when Lord Acton made his famous warning that ‘power tends to corrupt, and absolute power corrupts absolutely’.15 The doctrine, whether viewed from the American, British, or French perspective, has never contemplated a rigid separation of the branches of government into watertight compartments but rather a separation that forestalls the dangers that are inherent in the concentration of powers.

However, as a doctrine designed to promote constitutionalism, good governance, and respect for the rule of law, it faces numerous contemporary challenges that limit its ability to fulfil its goals. Whilst many of these could be attributed to the manner in which it is formulated in some constitutions, others have emerged in practice, particularly in the context of globalisation.16 They can be summarised as follows:

1 design flaws;

2 the emergence of party politics;

3 the unruly judiciary and the judicialisation of politics;

4 authoritarian revival, rising populism, and imperial presidents;

5 a fourth branch;

6 the new global context;

7 the changing role of the state;

8 the impact of technology;

9 multilevel powers; and

10 the continual increase in executive powers.

1 Design flaws

Of the three popular models mentioned above, the weakest from the point of view of design is the French model, which explicitly provides for an overbearing president who towers above the other two branches. For example, the fact that the Constitution states that the President is the guarantor of judicial independence clearly suggests that these two branches are not coequals. It is difficult to see how a subordinate legislature and judiciary can effectively hold the executive accountable. How could this design be improved upon?

2 The emergence of party politics

The assumption that there would be a healthy rivalry between the legislature and the executive, with the former checking the later and vice versa, virtually collapsed with the emergence of party politics. This has led to two extremes. The one is that, in most countries, once the legislature is of the same party as the executive, party loyalty trumps the constitutional duty to hold the executive to account. The other extreme, particularly apparent in the US, is that where one or both houses are controlled by a different party, what emerges instead of the checks and balances one would have expected is obstruction, lawlessness and permanent partisan tension. This raises the question of whether the legislature can still be effective in its role of checking the executive in today’s polarised atmosphere of partisan politics.

3 The unruly judiciary and the judicialisation of politics

The judiciary’s ability to play its role in the dynamics of checks and balances is diluted by two possible alternative realities. One extreme is where the constitutional or legal framework for judicial independence makes judges vulnerable to external manipulation and control (as in most francophone countries in Africa, for example). As a result, they are unable to discharge their functions without fear or favour, which gives rise to judicial deference. At the other extreme, where the framework allows judges too much discretion, this gives rise to juristocracy.

An example of the latter is the US Supreme Court decision of 24 June 2022 in Dobbs v Jackson Women’s Health Organization (JWHO). By overturning Roe v Wade, the Supreme Court erased nearly 50 years of precedent. According to most analysts, this decision, by a highly conservative court, will cause disproportionate harm to blacks, Latinos, indigenous peoples and other marginalised minorities, groups for whom systemic racism has long blocked access to opportunity and health care. The question again is how courts can be made to play their role in checking the other two branches without, on the one hand, deferring to the executive or, on the other, indulging in judicial overreach.

4 Authoritarian revival, rising populism, and imperial presidents

The last decade has seen a global decline in the quality of democracy. It has also seen the rise of populist authoritarianism and a corresponding weakening of respect for the rule of law, as well as increase in presidential powers. The steady rise of right-wing populism has resulted in the regular abuse of powers and disregard of checks on executive powers. In extreme cases, such as Donald Trump in the US and Jacob Zuma in South Africa, their disregard of constitutional constraints, use of populist blackmail and intimidation, and abuse of legal process has continued even after they left power. The extremes to which right-wing populists are prepared to go, whether within or outside the law, pose a major challenge to maintaining the rule of law and inter-branch accountability and to warding against anarchy.

5 A fourth branch of government

The emergence of an ‘advanced model’ of independent and constitutionally entrenched institutions of accountability – such as the ombudsman, anti-corruption agencies, and human rights commissions (in the South African Constitution and replicated in the Kenyan and Zimbabwean constitutions) – looked very much like a significant innovation to complement the traditional triad. This was particularly so due to these institutions’ ability to be both reactive and proactive, and to their accessibility to the most vulnerable in society. In South Africa, the performance of the former Public Protector,17 Thuli Madonsela, raised high hopes about the role these institutions could play in circumstances where traditional checks and balances could not operate effectively. However, her successor, Busisiwe Mkhwebane, has shown that these institutions can still easily be captured and

rendered toothless by a determined executive. Is all hope truly lost?

6 The new global context

The classic identification of the three powers was borne of a specific historical, geographical and cultural context more than one and a half centuries ago in Western countries. In the multipolar and divided world of today, with its conflicting ideologies, cultural differences, developmental challenges, etc., this context has changed fundamentally since then. Many now feel that there are more than just three branches of government or centres of power, a point to which I will come back later.

7 The changing role of the state

The role of the state has expanded dramatically from what it once used to be. It now includes responsibilities such as social services, infrastructural development, and control and planning of the territory, the environment, and external relations, and more. How the state approaches these responsibilities depends on, inter alia, ideology, available resources, and political and economic stability.

8 Impact of technology

Continual advances in technology have sped up not only social and economic processes but, most significantly, the means of communication. The rise of online social media, in particular, has meant that there is no longer just one but multiple sources of information, and with this has come the problems of disinformation and misinformation. Information is power, and the ability to easily manipulate information is changing the way people view power.

9 Multilevel of powers

Although in its earliest days some fusion and dispersal of powers were recognised as inevitable, this was often within the classical triad. Today, fragmentation has deepened. Some delegation or sharing of powers between branches was always accepted; now, as a result of the imperatives of globalisation, regionalisation and international cooperation, such sharing and delegation of powers is no longer confined to the traditional triad but extends to international bodies and institutions. For example, member states of the EU, with its high level of supranationalism, and, to a limited extent, those within the AU and its regional economic communities (RECs), delegate certain legislative, executive and judicial functions to these bodies. Other institutions such as the World Trade Organization (WTO), International Monetary Fund (IMPF), and

World Bank have also contributed to this dilution and fragmentation of powers. The separation of powers therefore has a pronounced transnational dimension.

10 The continual increase in executive powers

The last decade has been marked by an overwhelming surge in executive powers globally. The fusion and intermingling of executive and legislative powers had already made the executives too powerful, and the legislatures too weak, for any effective checks and balances of the former by the latter. The rise of populist leaders who see the principle of separation of powers as an obstacle that prevents them from centralising power and running the country in the way they see fit has compromised the limited space for exercising checks and balances that still existed. This has also closed the gap between outright dictatorships that use the rituals of democratic elections to disguise their dictatorship and the more recent Western variants that exploit societal problems to gain and hold on to power.

Managing the challenges

Most theorists are agreed that the separation of powers is still as relevant today as it was when the doctrine was developed but needs to be adapted to present realities. For a start, given the extensive fragmentation that has taken place, it is clear that we can no longer talk of just three branches of government. In fact, Giovanni Bognetti suggests at least five powers by adding the powers of the administration and of constitutional courts to the original three.

There are still ways of managing many of these challenges. Two examples will suffice of how we can deal with the problems caused by the aggrandizement of executive powers over the years. First, one could say the independence of courts is a non-negotiable value critical for the effective operation of the doctrine. Many constitutions claim this, but the reality is often different. One of the critical ways of strengthening the judiciary so as to make it genuinely independent and effective is to ensure that appointment bodies are never composed of more than 50 per cent of members appointed by the other two branches of government. This is in addition to constitutionally entrenching clear criteria for appointment in a transparent process.

Secondly, I think there is indeed a place for independent constitutional institutions as a fourth branch. These will help only if we can prevent them from being captured and manipulated by any of the

other branches. This possibility could be reduced by ensuring that their powers, mechanisms of appointment, etc., are clearly constitutionalised (as is done in the South African Constitution) but, in addition, going beyond this and providing that the appointment of their officials is either based on political consensus, which can be achieved by requiring a 75 per cent parliamentary approval, or effected by bodies similar to those used to appoint judges.

Conclusion

In spite of the attenuated form in which the doctrine appears and operates in many jurisdictions, it still has several advantages, such as:

• efficiency due to specialisation;

• preventing or limiting the concentration of powers and the attendant risk of tyranny and abuse of powers;

• protection of liberty; and

• respect for the rule of law.

As much as it is true that the doctrine of separation of powers has to adopt to contemporary realities, it is clearly as relevant today as it was when it was first developed. Autocracy and tyranny have not gone away; they have just adopted more sophisticated modus operandi. This calls for creative rethinking and reimaging of the doctrine in order to deal with these challenges.

COMMENT: Xavier Philippe

John Locke and Charles de Montesquieu pioneered the concept, and even today it is difficult to avoid an explanation of the theory of separation of powers without going back to them. However, while its general meaning and principles remain globally accepted in contemporary constitutionalism, new features have modified the classical understanding of it.

First, the division of powers is the result not only of a constitutional dispensation but also of constitutional practices. Many elements can transform and interfere with the way in which the dispersal of powers is exercised and operationalised, giving the impression that there is a gap – sometimes large – between the constitution and its implementation. Briefly put, the practice of separation of powers can differ in many ways from the provisions of the constitution, sometimes giving birth to another type of separation of powers.

Secondly, while the doctrine of separation of powers is usually understood in the framework of the state institutions (horizontal separation of powers), there is another type of separation of powers between the state and subnational state institutions (vertical separation of powers). This was, understandably, beyond the scope of the lead-in contribution.

Thirdly, if the judiciary is faced with the reality of political power (i.e., the executive and, to a

certain extent, the legislative power), its reaction, as a non-elected power, can be very different from one country to another. The development of juristocracy can be supported, or challenged, by epistocracy, that is to say, the power of the expert (and not necessarily a legal one), as the Covid-19 crisis revealed. This is another danger for the doctrine of the separation of powers, since the judiciary is at least part of the picture, unlike the experts who grant themselves (or are granted) the right to make political decisions (even if formally they do not do so).

I fully agree with remarks made on the risks that authoritarian revival pose to democracy.

Finally, in regard to the fourth branch of powers, comprising constitutionally independent bodies, this is a route that many new constitutional dispensations have taken so as to prevent the excesses or inefficiencies of the other branches. Because prescribed checks and balances do not play their full role, there is a tendency to invent new means to rebalance the democratic functioning of the regime. Independent constitutional bodies could be an appropriate response provided they are granted the means of playing their roles. In a number of cases, they are not able – practically, or financially, in terms of human resources – to present a proper counter-balance to the hegemony of one or the other power (quite often the executive).

CHAPTER 5: Human Rights

Lead-in: Octávio Ferraz

We were told to put forward blue-sky ideas but also that these ideas should meet brown-earth realities. I start with a well-known yet always worthrecalling brown-earth reality about human rights. Human rights are very often meaningless for a large portion of the world’s humans, perhaps the vast majority of us, although there is no accepted method to quantify this with much precision. We are reminded daily of this harsh brown-earth reality, especially, though not exclusively, when we set our gaze outside the narrow confines of Western Europe and North America.

The case of Maria Leusa Munduruku, whom I met recently in a fieldwork trip to the Amazon forest, is just one tragic example among many. Maria Leusa is the leader of an organisation of indigenous women (the Wakoborum) from the Munduruku people fighting to protect their ancestral lands from invasion by criminal goldminers, cattle farmers, soya producers and loggers. Indigenous peoples like the Munduruku have suffered attacks to their lands and livelihood since the arrival of the Portuguese in 1500. But in the past few decades, a glimmer of hope has arisen with the growing recognition, internationally and domestically, that indigenous peoples also have human rights and that, within those, the right to their ancestral lands is perhaps the most important, as it underpins their enjoyment of all other human rights.

Yet the law in the books, including the progressive Brazilian Constitution of 1988, has not been of much use to Maria Leusa and her Munduruku people. Illegal deforestation inside their demarcated lands keeps increasing year on year, and has now reached such a dramatic level that the Munduruku people are at a real risk of seeing their way of life destroyed completely. Most harmful of all has been the explosion of illegal gold mining that pollutes their rivers with mercury, contaminates their fish and their bodies, and causes a variety of diseases, including in babies contaminated through breastfeeding.

When Maria Leusa and her association began to make too much noise about these violations, which has won her the 2015 UN Equator Prize, the criminals decided to retaliate. After continuous threats, a group of armed miners invaded her riverside village in 2021, set fire to her parents’ house and all their equipment for working the land, and said they would kill her if she continued to disturb their business. Maria Leusa has had to leave her village and move to Santarem city, 759 kilometres away, where we met. What meaning do human rights have for Maria Leusa?

Maria Leusa’s case is not exceptional: it is just a vivid and personal illustration of a general problem with human rights. Take some of the most important socalled civil and political human rights. In how many countries in the world can humans genuinely express their opinions freely and participate in government?

As mentioned, there is no accepted method of measuring this with precision, but political scientists have been developing indicators of compliance with democratic values that can help us get an approximate answer. According to the latest V-Dem report, more than 70 per cent of the world’s population live in autocracies today, so they are neither able to express their political views freely nor participate in government, unless of course they belong to the small group that controls power.

What about so-called social and economic rights to health, education, food, water, a minimum standard of well-being? Here the task of quantification is harder still, as agreement on the content of these rights is even thinner

than it is with their civil and political counterparts. Even if we take a minimalist approach, it seems clear that for a large portion of humanity social and economic rights mean little, if anything. The Covid pandemic provided a dramatic illustration of this by placing billions in the situation of having to choose between protecting themselves from the virus and starving, or going out to work and risking dying of the coronavirus.

We can take some solace, of course, in the fact that things were much worse in the past. As Kathryn Sikkink has shown in her invaluable book Evidence for Hope (Princeton, 2017), there has been important progress across the world in many human rights issues, such as the death penalty, gender discrimination, and access to health, education, food and water. I agree. My point is not that human rights have made no difference to human lives around the globe – they have (contrary to some unjustifiably pessimistic views, e.g., Posner).1 It is that despite significant progress in many areas and across the world, the effective enjoyment of human rights is still not the reality for a significant portion of humans, arguably the large majority of us. Could anything be done about that? If so, what?

Constitutionalism was the most popular answer for quite some time, and perhaps it still is despite its current crisis. When countries adopt liberal constitutions, that is, constitutions which entrench the liberal democratic values of pluralism, equality, and the rule of law (in the more substantive conception of it that includes human rights), and build the institutions required to implement those values – that is, representative legislatures, accountable executives and independent courts –then, so the argument goes, human rights can be effectively enjoyed by most of the population. For those who believe that human rights include social and economic rights, the argument has been the same: include them in the constitution and make them enforceable through courts.

There are two main problems with this position. First, there are too many constitutions across the world that are ‘shams’, ‘façades’, or mere ‘fig leaves’ for authoritarian regimes with no intention whatsoever of abiding by the values and rules inscribed in the text of the constitution.2 Secondly, even in the minority of countries where constitutions are adopted with the genuine intention that they should apply in the real world, the gap between their text and the reality on the ground is often very wide.

Let me give one example of the second problem.

Most constitutions in the world declare that voting is a human right. Yet there are millions of people who never exercise that right, even in democratic regimes. Take the case of Brazil, where presidential elections have been held (October 2022) –perhaps the most important elections in the country’s history, given that one of the contending candidates had well-known plans to finish the job he started in his first mandate of eroding democracy and becoming an autocratic ruler. Despite the importance of the election, 30 million citizens who were able to vote did not show up (i.e., more than 20 per cent of the electorate). As we know, the incumbent president ended up losing by a meagre margin of less than two percentage points, that is to say by less than 2 million votes. What made more than 30 million people refrain from participating in such a consequential election for the country and themselves?

There are likely a myriad reasons that explain this, yet the legal term that describes their attitude, ‘abstention’, masks what was often really the case: the sense of the meaninglessness of the right to vote. To appreciate this, we need to broaden our gaze from the narrow act of voting in an election, that is, ticking the name of your candidate on the ballot paper (or pressing the button in the digital ballot box, in the case of Brazil), and take in the social, economic and geographical determinants of political participation in elections. The first thing to note is that abstention in Brazil, and I am sure elsewhere, has a steep social gradient. The poorer are much more likely to ‘abstain’ than the wealthier. In principle, this could represent a conscious, well-informed decision to exercise the political freedom to participate in its negative form, that is, by deciding not to participate. The most likely explanations, however, lie elsewhere.

Although, as far as I know, there is no robust study of abstention and its causes, it is clear from scattered information published in the press, as well as from plausible inference, that the poorer face significant obstacles to exercising their right to political participation in elections. These obstacles are related directly to their poverty. Although elections are an obligation according to the Brazilian Constitution, the sanction for failing to comply with that obligation is a meagre fine of a maximum of R$3.45 (less than 0.70 US$). For many poor people, the bus fare to travel from their home to the election unit, an economic sacrifice they can hardly afford, is much higher than the electoral fine (a one-way bus ticket costs R$4.40 in São Paulo, and there is of course the way back, with many poor people living hours away from the polling station).

The cost of public transport is such an obstacle for poor people to vote that some municipalities governed by parties likely to benefit from poor people’s votes have decided to suspend bus charges on election day, always a Sunday. Such measures inevitably lead to challenges in the courts by parties unlikely to benefit from poor peoples’ votes. Some of these challenges were successful in the lower courts in the most recent elections, and resulted in an order from the Supreme Court allowing free transportation on election day across all municipalities in Brazil.

I could go on, citing further social, economic and geographical obstacles to the participation of poor people in elections in Brazil as well to the exercise of many other human rights, but I think I would be preaching to the converted. Let me thus move on to the next and most difficult question of this short paper: If constitutionalism has not been able to guarantee the effectiveness of human rights – not even in countries that embrace its values genuinely – what should we do?

One possible answer is, of course, more constitutionalism! The argument goes something like this. There is nothing wrong with the recipe (constitutionalism) itself: the problem is with its implementation. Let us keep fighting so that ‘sham’ constitutions gradually become ‘real’ ones, and ‘real’ but ineffective constitutions become effective ones. The road to effective constitutionalism is a long and winding one, but there is nothing wrong with the direction of travel. Let’s just try to accelerate!

I found this position convincing for a long time, and still haven’t abandoned it completely. Some of the successful human rights struggles of the past century give human rights supporters cause to be hopeful that significant positive change is possible. It would be foolish to deny, for instance, that gender and ethnic discrimination have not diminished, often significantly, in many countries across the world, and that this, at least in part, was aided by the ideas and institutions of constitutionalism: legislation, court battles, public protests, etc. In the field of social and economic rights the same is true. Take health as an example. Significant progress has been achieved all over the world in this field and, again, it would be implausible to argue that all of it is down to advances in health technology and none of it to health care’s recognition as a human right in more than two-thirds of the world’s constitutions. Why not thus continue on the same path and merely try to accelerate efforts to implement further constitutional ideals in the real world?

I can see at least one good reason not to settle for this more conventional, and perhaps more comfortable, route: urgency. As much as I agree with those like Sikkink about the importance of emphasising the real progress that has been achieved in human rights (not least to keep ourselves sane and motivated to carry on the fight), I can also understand (and empathise with) those who remain cynical about the capacity of constitutionalism to deliver in a way which is commensurate with the magnitude and urgency of the task.

One of the saddest reminders of this challenge came to me in the form of a headline I read in a South African newspaper: ‘Grootboom dies homeless and penniless.’ Irene Grootboom was the woman whose name became famous around the world among constitutional lawyers as the lead plaintiff in a case decided by the new South African Constitutional Court on the right to housing. Social rights’ supporters from everywhere lauded the South African judges for showing how these rights could indeed be justiciable and help the poor, contrary to what a majority of constitutional theorists used to defend. Irene Grootboom’s success in that case spurred social rights litigation not only in South Africa but across the globe, and was cited countless times by academic and courts everywhere. It was supposed to be ‘transformative constitutionalism’ at its best. To learn that not even Grootboom managed to have her constitutionally recognised right effectively implemented was the starkest possible reminder of the severe limitations of constitutionalism as a tool of social change. A metaphor used in a prominent academic article on social rights published during the debates about the new South African Constitution captured the situation perfectly: ‘constitutional ropes of sand’.

Again, I could go on and on with examples of the utter ineffectiveness of human rights of all sorts and in all parts of the world, but there is neither space nor necessity, I think, for that in this forum. My point is, I hope, sufficiently clear: if we agree that the enjoyment of human rights by all humans is an urgent matter and that constitutionalism can offer, at best, only very gradual and slow progress towards that goal, can we think of other strategies that might get us to the final destination more quickly?

It is here that I turn to blue-sky thinking, as we were invited to do, and go with it till the end of this short piece. Is there a possible shortcut to a world of universal human rights enjoyment? A route which is shorter and less winding than the painstakingly gradual transformation of hollow

constitutional promises into effective protection on the ground? If there is, I think it must involve addressing directly something which is common to all of the most heinous human rights violations: the stark inequality of power between victims and perpetrators.

Inequality works both as a cause of human rights violations and as an obstacle for the law to remedy violations. All the concrete examples cited in this piece seem to confirm this point, but I argue that it applies more broadly to most, if not all, cases of grave human rights violations. If Brazil and South Africa were countries with levels of inequality found, say, in France or even in the more unequal UK, it is hard to imagine any of those cases ever materialising. In the unlikely event they did, they would be exceptional and amenable to being dealt with by state institutions effectively and in reasonable time. As South Africa and Brazil are among the most unequal countries in the world, such cases are only the most visible representatives of a much larger and unmanageable problem that beautifully written constitutions, even in the hands of well-meaning courts like the Constitutional Court oft South Africa, have no capacity to address.

So long as such inequality persists, it seems futile to expect that constitutionalism, even when genuine and well-resourced institutionally, will be capable of preventing, or remedying, human rights violations. If this is sounding a lot like Thucydides’ famous ultra-realist view, it is no coincidence. I do think that his view applies well to the current precarious situation of human rights across the world. As he wrote in the History of Peloponnesian War, ‘right, as the world goes, is only in question between equals in power, while the strong do what they can and the weak suffer what they must’ (The Melian Dialogue). Or, to recall Rousseau’s variation on the same theme in Discours sur l’économie politique (1755):

COMMENT:

Jaap de Visser

A few remarks in response to this thoughtprovoking and elegantly expressed lead-in piece. First, I agree entirely with the consideration, implicit in the lead-in, that we ought not to give up on human rights. While the point may be obvious, it is worth making: having human rights entrenched

The greatest evil is already done when there are the poor to defend and the rich to contain. It is only in equality that laws are fully effective; they are as powerless against the treasures of the rich as they are against the misery of the poor …

If my argument is correct, to make human rights effective we need to figure out a way of making human societies significantly more equal. For some time, I thought that this goal could be achieved through the implementation of social and economic rights by legal institutions, that is, through transformative constitutionalism. As is obvious from the previous paragraphs, I think now that I got the order of things wrong. Without a baseline of equality, it is very difficult for human rights of all kinds (including social and economic ones) to be enforced effectively. We need thus to focus directly on reducing inequality before we can expect legal institutions to be capable of addressing human rights violations effectively.

But here is where the blue sky gets darker. According to the most prominent scholars of inequality, such as Tomas Piketty3 and Walter Scheidel,[96] significant reductions of inequality only happened in humanity’s history as a result of massive violent shocks, the ‘four horses of apocalypse’ according to Scheidel: state collapse, massive epidemics, war, and revolution.4

If history determines the future of inequality and my argument is correct, a world in which human rights are universally enjoyed looks very far away indeed. But history is not destiny. Perhaps a critical mass of people will emerge in the near future, perhaps spurred by the impending environmental catastrophe, who are capable not only of understanding the damage that inequality inflicts on human societies and the planet but also of foregoing the short-term individual comforts that inequality enables them to enjoy.

in international and domestic instruments is in and of itself a sign that ‘humanity is not okay with the status quo’. I dislike the reliance on the mere ‘declaratory’ nature of human rights, and I don’t want to reduce human rights to symbols, but I do think this is important.

Secondly, the critical analysis of the value of rightsbased advocacy, against the backdrop of Irene Grootboom’s death in poverty, is on point. I would like to add a few considerations. The fact that Irene Grootboom died in poverty is a sad indictment. However, it is also true that the Grootboom judgment prompted, or forced if you will, the adoption of a comprehensive emergency housing programme. This programme benefited thousands, if not millions, of destitute South Africans. At the risk of an overly utilitarian approach to human rights, the rights were leveraged and arguably achieved an overall societal benefit.

The same happened in the Treatment Action Campaign judgment: the South African government was forced to abandon its reckless policy on HIV/AIDS, and it now boasts one of the most comprehensive treatment policies globally. The problem, in my view, is that it seems that human rights depend on heroes and heroines. Can they be made real without a Zackie Achmat, or without a Wangari Maathai? We were always taught (and now teach) that human rights are inherent, self-executing, etc. But they are not.

Thirdly, Octávio points out that equality is the real problem, and I cannot but agree. Yet to be provocative: Must constitutionalists then wait for equality to be achieved by economists and politicians, so that we can then enforce human rights? Surely that is not what this great piece argues. Let me offer a thought here. How can we insert substantive equality into the actual application of human rights? Following on from Eva Maria Belser’s remarks about whom human rights were originally designed to protect, do we need to rethink the notion that human rights apply equally

to everyone? The reality is that, for example in South Africa, conservative movements use human rights very effectively to defend their privilege. Should marginalised groups and individuals not have a ‘leg-up’ when it comes to defending their human rights? Should it not matter very decisively ‘who’ is invoking a human right? Claiming rights to defend privilege should be harder than claiming rights to ensure survival. But how to operationalise that in human rights doctrine in an effective way, i.e. in a way that goes beyond the obvious point that ‘context matters’?

My last point is perhaps my most blue-sky remark. In my view, the persistence of inequality is linked to the devastating effect of ‘big systems’. The combination of hyper-connectivity and concentration into ‘big systems’ seems to be a toxic mix. ‘Big systems’ fail ordinary people. The clearest example is ‘big finance’. At an individual level, if an ordinary person defaults on his or her mortgage, there is no forgiveness, and the house will be sold in execution. However, if the exact same problem is aggregated up a thousand times and it becomes a ‘big system’ of big finance, the same logic suddenly does not hold. If the ‘big system’ defaults, there is forgiveness: financial institutions are bailed out. Morally, it is wrong. Similar trends can be observed with Big Food, Big Tobacco, Big Entertainment, Big Social Media, Big Fossil Fuel, and perhaps even Big Government.

This is not an argument for us all to be hermits. However, it is perhaps a stark reminder of what we’re up against, and how important it is to revisit our thinking of human rights in response to these big systems.

COMMENT: Johanne Poirier

The Mont Fleur Conversations invited us to engage in ‘blue-sky thinking’: imagining the best, with fresh eyes, even if it means challenging deeplyheld beliefs, shared orthodoxies. We were also mandated to confront our current conceptions –and those emerging from the blue-sky imaginative exercise – with ‘brown earth realities’, that is, ‘down-to-earth, hardheaded, practical, pragmatic or realistic thinking’. Dream big and then translate

into possibilities of the waking hours.

In this short commentary, I’d like to use the two metaphors somewhat differently. Children gazing into blue sky marvel and then ask ‘why’? Those who feed us, those who actually have their hands in ‘brown earth’, gaze to the sky to see what’s coming. And they often don’t have the luxury of asking why. They know ‘how to do’. And they do.

Reading Octávio Ferraz’s beautiful and thoughtful piece on human rights, as a core element of constitutionalism, I kept wondering as the child might … why human rights, why are they not being implemented, why are they being challenged? And then, thinking of brown earth reality, I kept wondering: how should we ‘do’ human rights? How do we define them? How do we balance them? And just plain protect them against those for whom blue sky is just for them? But more profoundly, I kept wondering how else could we achieve the purpose of human rights, the defense of the equal dignity of every human, and, increasingly, the protection of the natural world that is not humancentered? In this short reaction-piece, let me share three reflections amongst the dozens that the text has generated.

First, Octávio tells us he has not despaired from thinking that ‘more constitutionalism’ (including entrenched socio-economic rights) can yield some results. For some. Slowly. That is not nothing. But he also admits having gotten the order wrong: we need to eradicate massive inequalities before first-, second-, third- and fourth-generations rights – entrenched or not – can actually become real and make a difference in the lives of people they have not served well so far. This throws us back to blue skies (why inequality?) and brown earth (how to fight it?). I hope a group of engaged economists are sitting somewhere rethinking their fundamental premises to help us along the way …

For constitutionalists, the question is whether the vision of rights we have propagated, defended or criticised actually supports the quest for equality, is an obstacle to it or has become a distraction from it. Together we can probably come up with examples of all three causal relations.

Maybe the message is that law – even embellished by transdisciplinary work – without political action will have a limited impact on a limited number of people(s). What does that say about what we, as constitutionalists, teach and preach?

Secondly, Octávio’s piece also made me think about the nature of rights. He shares the story of Maria Leusa, a leader of the Munduruku people in the Amazon. How would she see ‘human rights’ or Indigenous rights? We can celebrate the UN Declaration on the Rights of Indigenous Peoples

– and its integration in some domestic legal orders. But is this the ‘right’ tool? As I am (very modestly, very humbly) learning about Indigenous legal traditions, I am constantly reminded of the importance of responsibility, relationality, connection. That ‘rights’ can be harsh tools that make people oddly dependent on institutions in which they have little say or influence. That rights cannot be divorced from self-governance. That the focus on ‘human’, has disconnected our species from the rest of the “brown earth”. That rights can collide, and that rights can pin people against people, minorities against majorities, minorities against other minorities, institutions against institutions. What does this tell us about the potential and limits of ‘rights?

What would Louisa think about these ponderings? Would her worldview provide other ‘brown earth’ approaches that might be more effective, or at least complement the ones that Western constitutionalism has developed? Is her sky the same blue as ours?

Thirdly, Octávio rightly points to poverty as a cause of the disengagement from certain rights: the right to vote for instance. Accessing rights is a major challenge of course. This throws us back to point #1 (whether ‘rights’ are the right tool to attain human dignity and flourishing in deep connection with the natural world).

However, sitting in North America, I observe other phenomena also. One is a certain ‘blasé’ attitude that takes freedom, equality and dignity for granted, even by those (and perhaps mostly by those) who actually benefit from them. Another (and they can be related) is a focus on ‘identity’ politics. This has undeniably yielded some positive results (recognition, anti-discrimination, inclusion). But identity politics (in which I have partaken!) sometimes drives ‘intellectual’ and political energy away from socio-economic issues. This also feeds into cynicism about rights, rights-holders and the value of constitutionalism. It nourishes populism and distrust in democratic institutions. In other words, focusing only on certain rights – to the detriment of socio-economic justice – leaves marginalised people knee-deep in brown earth, wondering what all the blue-sky gazing is giving them.

COMMENT: Eva Maria Belser

The lead-in piece begins by stating and illustrating that human rights, while selectively useful, are meaningless to a majority of people. Constitutions guaranteeing human rights either do not genuinely embrace human rights or fail to implement them. As a result, the discrepancy between (blue-sky) human rights and (brownearth) realities is shocking and persistent. Octávio Ferraz emphasises that hoping and working for more and better constitutionalism is a meaningful option, but does not do justice to the urgency of the need for human rights improvement. For this to happen, he argues, a baseline of equality must first be achieved. As equality is a premise or precondition of law and justice, civil, political, economic, social and cultural human rights cannot fulfil their promises without it.

I would like to comment on these inspiring and stimulating considerations, which I fully share.

First, as equality is itself a human right – and we lack efficient mechanisms to implement human rights – we still need a lot of blue-sky thinking to find out how equality can be produced in the absence of strong and transformative constitutionalism. In fact, I fear that by identifying inequality as the main concern of human rights implementation, we have managed only to pinpoint a root cause of brown-earth reality rather than find a remedy to it. Without meaningful innovation in this field, the aim of producing baseline equality runs the risk of remaining as meaningless to people’s live as the claim of (other) human rights.

Secondly, I wonder if human rights advocates are not still too attached to the end-of-history ideology, according to which the world community agrees on the aims (democracy, human rights, rule of law) and only needs time to find the means to achieve them and convince some die-hard (or even new) autocrats otherwise. I suspect that we have hastily broken off debates about the universality of human rights and silenced relativists and other human rights critics with (sometimes unfair economic and ideological) pressure. We cannot deny that

they have concerns we need to consider in order to improve people’s lives. It might be necessary to discuss more openly the origins of human rights, their evolution, and their applicability (the recipe) – and not only their implementation (the cook and the cooking). As human rights as we know them are (mostly) a Western product, the issue of whether they apply globally should not be casually dismissed as inhuman or cynical.

Thirdly, it might be useful to recall that human rights have been designed to protect well-off men from the undue interference of absolute states –and that is how they still operate (best). Women, people of colour, people from disadvantaged social and economic backgrounds, foreigners, children, and people with disabilities were not amongst the human beings ‘born free and equal’. After the French Revolution (not before), only 10 per cent of the French population enjoyed the right to vote and other human rights. Actors like Olympe de Gouges (women’s rights), Toussaint Louverture (slave rights), and François-Noël Babeuf (the rights of the poor) were all killed in the revolution – and so were their agendas. Women, for instance, were asking for the control of food prices, the combat of usury, access to economic opportunities for all, and the right to free marriage and divorce. Their claims were not directed against the state (and Olympe de Gouges was killed for being a monarchist) but against the abusive behaviour of economic actors, businesses and business associations, and of family members, fathers and husbands.

If human rights are meaningless to an indigenous woman like Maria Leusa Munduruku, it might be useful to recall that they were not designed for her or her concerns in the first place.

Fourthly, human rights as inherent elements of constitutionalism work in the presence of effective states and independent, accessible courts empowered to invalidate laws and decisions unduly interfering, through unjustified state interference, with existing rights and freedoms. They are

functional for those already enjoying rights and freedoms, and by design (and by the institutional context on which they rely) are dysfunctional for the majority of people.

Fifthly, it is true that human rights have evolved over the last 250 years and that the duty to (passively) respect human rights (including the business activities of multinational enterprises and the fortunes of oligarchs) has been complemented by both the duty to protect human rights (from interferences by non-state actors) and the duty to (actively) fulfil them. It is also true, however, that human rights instruments have not followed this evolution and remain unfit to effectively implement the new duties – as the case of Irene Grootboom sadly reminds us.

Constitutionalism, mostly a tool to limit governments and prevent (active) power abuse by state actors, is not effective (or is only marginally effective) as a tool to empower governments and oblige them to protect and fulfil human rights. Constitutionalism as we know it is mostly conservative, not transformative, and lacks effective and legitimate tools to create equal chances and relevant freedoms where they are missing. When independent courts are in place and accessible (they rarely are), they can strike down undue state actions, but struggle to enforce actions where they are unduly lacking; even if the judiciary (and human rights) operates decently, it tends to work in favour of those who already enjoy

rights and freedoms and disappoints those who are awaiting them.

Sixthly, real (de facto) freedom and equality cannot be established without solidarity and socio-economic justice. This obviousness is not supported by a broad national or international consensus. Most of the human rights promoters (states and international organisations) are not advocating (or advocating only timidly) for social redistribution. With this attitude, they torpedo their proclaimed goals (in particular, equality) to such an extent that it is sometimes difficult not to doubt their sincerity. The comfortable image of the human rights offender is the evil autocrat, the corrupt state, and the traditionalist leader defending anti-human cultural practices (‘the barbarian’), not the company making unspeakable profits from natural resources, the employer paying less than minimum wages, or the bank and other (global) players profiting from open borders, global trade, exploitation, social dumping, and the like.

Seventh, if Octávio is right – and I do not doubt it –to make human rights effective we need to figure out a way of making human societies significantly more equal. Here are some ideas: change global trade rules; introduce global taxes; establish a system of global financial equalisation; use the gains of natural-resource exploitation to pay a minimum income to all.

CHAPTER 6:

Rule of Law: Supremacy of the Constitution and Judicial Review

Lead-in:

Jeff King

Introduction

Constitutional judicial review accords significant political power to judges. This is necessitated through the exercise of interpreting vague constitutional provisions and the development of wide-ranging constitutional legal principles. When it is used to invalidate legislation, it raises complex questions. The most perennial of them is: What justifies the allocation of such power to judges? I want to begin this contribution by rejecting some putative answers that I find unduly simplistic. I will then set out a different framework for approaching that question, before launching into a discussion of various sub-topics of acute concern in the global discussion of constitutional judicial review.

The simple picture

A common answer to the question just posed is: the constitution justifies the allocation of power. But why put such power in constitutions? Some believe it lies in the very nature of constitutions. They are higher law, and hence must determine the lawfulness of legislation and executive action. Since they are legal, furthermore, judicial review follows as a matter of necessity. But in my view it does not. The UK, New Zealand and Israel do not recognise that necessity. Article 120 of the Constitution of the Netherlands provides that ‘[t] he constitutionality of Acts of Parliament and treaties shall not be reviewed by the courts’. The Nordic countries have a practice of very restrained judicial review of legislation even where it is formally available1 – and of easily amended constitutional texts. Apart from Israel – the most judicially active of these examples – these are all among the best-performing countries in the Freedom House rankings on civil liberties.2 Constitutional judicial review is an institutional design choice, one which stands in ongoing need of justification. Sometimes a poor justification might recommend constitutional reform.

Another common answer to the question of justification is contained in the idea of constituent power.3 The idea is that the people have acted in a constitutional moment (i.e., a constituent assembly) to endorse the constitution and hence given it genuinely democratic force. When judges strike down a law enacted by the constituted power (i.e., the legislature), they should see themselves as the agents of the superior constituent power that enacted the constitution. The legislature, in this view, is seen as having weaker democratic pedigree and of being more prone to irrational or self-seeking behaviour.4

This kind of answer fails fatally for three reasons. First, it is likely to be rare that the democratic pedigree of the constituent assembly will match that of a legislature packed with parties for whom people vote regularly. In many cases the constituent assembly will either be party appointments or experts or both. Secondly, settling the text of the constitution does not eliminate the problem of judicial discretion entailed by legal interpretation. And thirdly, since constitutions have a longue durée, any democratic pedigree they had at the outset wanes over time.5 From about one generation onwards, the constitution could be regarded as democratically authorised only by acquiescence rather than authorship.6 But even that argument (i.e., the idea that the people simply accept the constitution now) faces the fact that most constitutions require a two-thirds amendment formula to be changed. It is hard not to accept it, in other words. For all these reasons, the constituent

power idea does not bolster the democratic credentials of constitutions and the judicial role.

A more complex picture and set of issues

In my view, the question of whether to establish constitutional supremacy and a role for the judiciary in enforcing it is essentially an instrumental one: will doing so give effect to some valuable state of affairs better than another constitutional arrangement? Put another way, what will it do, and is that valuable (judging from the net of its costs)? Surprisingly, this is also the way that Ronald Dworkin approached this same question. Though he is widely read to be the ardent advocate of constitutional judicial review, his defence of the democratic legitimacy of judicial review is not that it is necessary in a democratic society but that it can be democratic if judges take the right approach to legal interpretation.7 And he was candid in taking the view that whether that happens will depend on the experience within each jurisdiction.

As to the ‘valuable state of affairs’ in the formula above, there can be many values in contention: dignity, liberty, equality, self-government, welfare, human rights, recognition, among others. Typically, the way we integrate these values into a coherent whole is through a political theory of one sort or another – in particular one that integrates the role of democracy, rights, and welfare or well-being.

The deliberative democracy theory of Jürgen Habermas is one example. He argues that political decisions are legitimated by a deliberative process of decision-making that is open and egalitarian – and hence one that is necessarily constituted by structures that exhibit respect for rights.8 He believes constitutional judicial review can help secure those structures.9 Many other writers want to create political institutions that secure some form of equality, or a complex form of egalitarian liberty (e.g., non-domination). Theorists such as John Rawls10 and Philip Pettit11 assume, like Ronald Dworkin, that constitutional judicial review can support such an egalitarian liberty-respecting framework. John Hart Ely presented a developed theory of how the US Constitution can be read to support a representation reinforcing form of judicial review that essentially bolsters political equality.12 Yet others, such as Jeremy Waldron and Richard Bellamy, attack these arguments in a quite sophisticated way.13 But ultimately, and as highlighted by Dworkin, a key part of the question of whether it is democratic and effective is actually instrumental, and no amount of theoretical inquiry will answer the question of whether constitutional

judicial review succeeds or fails in helping to deliver an egalitarian and rights-respecting set of political outcomes.

I also consider this instrumentalist approach to be reflected in the discourse of transformative constitutionalism.14 Here, the idea is that a constitutional framework can transform the political and social structure of society and make it better respect the ideas of dignity, equality and rights. And here again, constitutions are instruments for securing complex political ideals. The value of judicial review is assessed by reference to its likelihood of bringing about that state of affairs.

From a global perspective, we can see that this instrumentalist approach to answering whether judicial review is legitimate will make general answers to the question impossible. The answer to ‘what constitutional supremacy will do’ will vary significantly across and within countries. It will depend on the state of society (e.g., whether riven by ethnic division), whether its democratic institutions are well-functioning, whether the judiciary is dependable and not easily captured by the executive, and whether a judicially enforced constitutional framework would lead to political destabilisation (violence, backlash, populism) at either the institutional level or within the general population itself. In short, it is not so much that history, culture and politics matter, but that they are determinative of the question’s answer.

A general query is whether, in the light of this conclusion, there is a stable set of outcomes that is consistent enough across borders to support what appears to be a general presumption that a liberal constitutional order should have constitutional judicial review. Some candidates appear here. The practice may foster greater respect for the rule of law among elected officials – because the practice institutes a more robust separation of judicial and executive power. It could act as a counterweight to the tendency towards executive personalism and aggrandizement, as non-constitutional judicial review did in 17th-century England and entrenched judicial guardianship sought to do in post-WWII Germany. The existence of transnational judicial conversations on rights means that a rights culture and the power of reason and persuasion can migrate through different legal orders sometimes more swiftly than it percolates into political practice.15 But these seem vague and hopeful. Can we think of more? Or is it necessarily a national question?

Specific issues

The legitimacy of judicial review in the Global South

The debate about the legitimacy of judicial review in the Global North has tended to revolve around the ‘counter-majoritarian difficulty’.16 The most potent criticisms of judicial review have argued that the practice fails to respect the idea of liberal equality because it gives a tiny group of judges power to invalidate the political decisions of politicians elected on a defensibly egalitarian franchise.17 Much of this debate is of limited relevance to the many countries that are authoritarian, so-called ‘hybrid regimes’ (i.e., semi-competitive electoral cycles, semi-independent institutions), or in only recently consolidated democracies where authoritarian tendencies and policies continue to prevail.18

However, it would be wrong to think that a discussion of judicial restraint is therefore irrelevant in such places. By ‘restraint’ I do not have in mind abdication or weak courts, but merely awareness by the judiciary of factors that could compromise the legal integrity of its role.19 First, there are several other good reasons for judicial restraint – on this see further below. Secondly, in many countries some choices and legislation will be more democratically defensible than others. In other words, democratic legitimacy is often a consideration of variable weight rather than totally irrelevant, even in hybrid or authoritarian regimes. And thirdly, it will be rare that one set of institutions functions very poorly (e.g., executive, legislature) and the other (e.g., judiciary) functions extremely well (i.e., the ‘nirvana fallacy’). It can happen, or happen episodically (see e.g. the apex courts in Brazil, South Africa, and to some extent Pakistan and Hong Kong, until recently). But the prevailing trend seems to suggest that ‘institutions move together’.20 The upshot is that dysfunctionality in one area does not necessarily support a robust corrective role for a different institution.

The tension between independence and accountability

Judicial independence is an institutional arrangement that, in my view, is meant to secure the value of judicial impartiality, which in turn secures procedural fairness between the parties as well as the instrumental benefits of the consistent and accurate application of law. Judicial impartiality is a frame of mind in relation to the parties before the court, namely, where the adjudicator has no predisposition to favour either party regardless of the legal merits of their case. Sometimes a

completely insulated judiciary might not actually secure impartiality.21 Such bodies might develop their own biases and become rival centres of self-interested political power, or they might just routinely favour certain kinds of parties or issues. The US Supreme Court is quite independent but in no way impartial. On the other hand, sometimes a process that has more political input – such as the practice of the German Bundestag (federal parliament) of letting parties trade in nominating ‘their’ judges to the German Constitutional Court – can produce a surprisingly impartial and functionally independent court. So too might shorter judicial terms, which can distribute reappointment powers more evenly between different political parties. It just all depends.

But what is clear is that institutions for securing independence (and hence impartiality) are increasingly popular and coming in for scrutiny. Judicial appointments commissions are among them.22 They are not entirely immune from capture, as noted by commentators, and so it is a risk that they may work best where they are less needed. At any rate, judges in constitutional courts find themselves between two difficult extremes. Either they can be entirely aloof from the political process, and be regarded as entirely unaccountable for the admittedly important political or legal decisions they make, or they are subject to accountability of a non-legal sort, before either parliamentary committees or independent commissions.

Yet one point does present as a relatively clear matter of political logic. The exercise of a farreaching constitutional jurisdiction is likely to fortify the call for political accountability of the judiciary. For that reason, constitutional reforms to expand the ambit of constitutional judicial review, or judicial decisions that expand it significantly during adjudication, are likely at some point to generate calls for greater political accountability. It means greater political interest in appointments, whether by political scrutiny or direct control. A potential knock-on effect could be that politicised appointments may worsen the quality of the judiciary with respect to constitutional adjudication (and in systems with generalist apex courts, nonconstitutional adjudication as well). These are part of the potential costs requiring consideration when expanding the functional ambit of constitutional judicial review. A proposal to put extremely vague commitments of great political importance without any structuring of the interpretive role is, absent a reliable culture of judicial restraint, liable to exacerbate such problems.

Activism, restraint, and prudence

Assuming the constitution does provide for constitutional judicial review, it is only appropriate for judges to exercise it. Yet questions of legitimacy and competence nevertheless continue to arise within adjudication. As noted above, democratic legitimacy will often not provide a strong reason for judicial restraint. But it is only one such ground. There are three other potent ones that apply everywhere, and one other ground that may well apply in many countries.

The three I have in mind are that judges will need to show restraint on grounds of expertise, polycentricity, or the need for flexibility.23 Expertise is a fairly obvious ground for restraint. However, it is complicated by the fact that in many countries the executive or some agency will often ignore expert considerations or is incompetent in a judicially demonstrable way. The question will remain, however: is the court in a better (or competent) position to decide the matter? Judges might not know any better or might be asked to trust an expert whose reasoning on the subject is inscrutable to judges. There is also the problem of whether the issue is highly polycentric. That means it is an issue in which the network of relationships affected by a decision on the issue is vast and intertwined, such that the impact of making any but incrementalist judgments can be far-reaching and hard to understand. Adjustments to national economic policy are good examples of such issues, but the same problem exists at the retail end of constitutional judging in many jurisdictions. Another reason for caution is that administration can be more flexible in responding to unforeseen consequences. A judicial decision can be ‘stickier’ than a political one, because changing the judiciary’s policy ruling is more institutionally complicated. This applies even in civilian jurisdictions where there is no formal doctrine of precedent.

All three of these reasons apply as much in unconsolidated democracies as they do in consolidated ones, though they will tend to apply in different ways (e.g., the assumption that deference to the executive should follow would not operate in the same way, because these risks need to be weighed against a nearly totally unconstrained executive).

There is yet another ground about which I am more circumspect – deference on prudential grounds.24 This is where the judge knows what the right legal answer is, but refuses to give relief because doing so could provoke political backlash that would threaten the integrity of the judicial system. I

consider this ground for deference a square affront to the rule of law. For that reason I am against its recognition in the British, Canadian, American or German legal systems (ones that I know reasonably well), which should, at least in political experience so far, be able to withstand said backlash. However, in many countries that are in an even higher state of institutional fragility, there may be grounds for its being a legitimate consideration. If the wholesale replacement of the judiciary with judicial stooges is a predictable outcome of a judgment or series of judgments, I cannot say with confidence that prudential considerations should be off the table. Surprisingly, there is little empirical work on the institutional consequences of relatively activist courts in hybrid regimes (though forthcoming work on this subject is not far off).

Judicial review, change, and the political superstructure

There is a rich literature on whether courts and constitutional review bring about meaningful social change. Some of that literature has focused on the Global South.25 I find this literature highly instructive and have been encouraged by some of the positive results it has reported in some countries. It tends to enrich the discussion of whether constitutional judicial review has fulfilled its purpose or vindicated at least some of the promises of the constitutional framework.26 It is nevertheless clear that these studies follow a broad range of ones that have been more ambivalent about the value of impact litigation and bringing about positive social change.27

One of the things pointed out in many empirical studies is that some combination of political campaigning and litigation is a near-essential component of constitutional adjudication’s success at making valuable policy changes.28 It also tends to reveal that, at least in some countries, ‘significant social reform’29 is hard to attain through litigation if that means major social impact at the nationwide level. That does not mean that litigation falling short of that outcome isn’t meaningful – far from it. Yet I think the experience does suggest that for constitutional judicial review to serve the value of generating respect for constitutional supremacy and the values it enshrines – such as democracy, rights, dignity and the rule of law – it should seek to nourish and not undermine a public political culture that will sustain it. If the practice becomes radically out of sync with that culture, it might be rejected as an irritant.

There is nothing especially conservative in this claim. A public set of values can be radical, as in post-apartheid South Africa and many other post-

revolutionary constitutional landscapes, as well as in the post-World War II era in Europe. Yet my claims may commend a strategy of judicial gradualism (or sensitivity to the strategy of change) of the sort adopted by social democrats in 20th century Europe and which distinguished them from the communists, who wanted radical social change much sooner (and often by unconstitutional, revolutionary means).30

I suspect a lot of the work of sustaining the possibility of constitutional judicial review’s delivering the political promises of a constitution, and securing its structural guarantees for democracy, would need to be done at the level of public engagement in political discussion and through political leadership. Unfortunately, the possibility of rational public discourse is severely

threatened by the advent of social media and anti-intellectualism, and the attendant rise of political polarisation. They are direct challenges to the rule of law and the idea of constitutional values as a framework for politics. It is hard to know what to do about this other than to press on with public engagement that fortifies belief in the value of constitutional principles, and by carrying the message to the top of the political parties. The courts can also play a virtuous role in this educative process, and have done so for many years in many countries. A great political challenge for many of them at the moment is how much they should push back against or yield to this political and popular pressure. Pushing back too firmly may entail emphasising arguments that populists will use to undermine them. Yielding isn’t much better.

COMMENT: John Mutakha Kangu

Jeff’s lead-in raises several concerns regarding the justification of judicial review and the power of the courts to invalidate legislations enacted by legislatures. Among the concerns raised is the ‘counter-majoritarian difficulty’, which is often used in the Global North to question the legitimacy of judicial review. The argument seems to be that it is wrong for a small number of judges who are not elected but appointed to have powers to invalidate the political decisions of elected representatives of the people. In my view, if certain issues are interrogated and clarified, the validity of the ‘counter-majoritarian difficulty’ starts becoming doubtful.

First, it should be noted that there are many methods of recruiting representatives of the people and that elections are just one among them. Thus, the mere fact that particular representatives are recruited through elections does not make them superior representatives to those recruited through other methods such as appointment.

Secondly, if an attempt is made to define the people from the two perspectives of, on the one hand, entitlement and access to the benefits of state power and governance, and, on the other, participation in governance processes, then it becomes apparent that there can never be any situation of direct participation by all the people.

Participation in the running of state and governance affairs is always representative in nature.

This is because, from the perspective of entitlement and access to the benefits of state power and governance, the people are defined as an all-inclusive concept that includes even future generations. However, from the perspective of qualification to participate in the activities of governance, people become a representative concept, since not all the people in the earlier sense qualify to participate. In this event, not all the people can participate, and those who participate at whatever level do so in a representative capacity to represent not only their own interests but also those of other sectors of the society that cannot participate. For instance, even where elections are used as a mechanism of recruiting the representatives, where certain predetermined ages are prerequisites for participation, then many people below the prescribed age do not qualify to participate in elections as voters.

Thirdly, the definition of the people from the perspective of participation introduces new dimensions to the concept of representation and representatives. Representation is not a responsibility limited to elected representatives. It obligates even appointed representative as well as representatives who are neither appointed nor

elected. For example, the voters who have attained the prescribed voting age are representatives even though they may not have been appointed or elected by anyone. Likewise, a whole generation may be representatives of future generations despite the fact that they were neither elected nor appointed by anyone.

When these issues are considered, the countermajoritarian argument becomes doubtful as a basis for questioning the legitimacy of the power of judicial review. I hold the view that judicial review should be appreciated as one of the mechanisms of trying to control and limit possible abuse of state power by the other arms of government. This appreciation should be set against the background of the realisation of the fact that power, whether lodged in the hands of a single individual or the majority, can be abused. Majorities can very easily become dictatorial. This is not to say that the judiciary is itself a perfect institution that cannot abuse power. Indeed, it can,

and on many occasions does, abuse power. Rather, our focus should be on how best to conceptualise and design these institutions so as to enable them to deliver the objective they were intended to achieve.

The concept of constitutional supremacy, to which the lead-in does not pay much attention, should be viewed as one of the mechanisms of trying to realise constitutionalism in the sense of control and limitation of state power to avoid abuse. Constitutional supremacy seeks to achieve this by introducing the notion of a hierarchy of norms. The constitution is elevated to the status of a higher norm than other norms, such as laws made by legislatures, in order for it to serve as a yardstick against which other norms must be measured. With such hierarchy of norms, it becomes necessary to have a mechanism of enforcing the hierarchy. The judiciary is thus granted the power of judicial review to enforce the hierarchy in the normative scheme of things.

COMMENT: Patricia Popelier

Too many valuable points were raised in this rich lead-in paper on judicial review to be discussed adequately in this short comment. I shall limit myself to two points.

• ‘Constitutional review is an institutional design choice’

This is a very valid statement, and one that should be considered carefully from all angles. It requires considering choices regarding organisation and procedure. They will determine how (im)partial the court’s decisions will turn out to be. How (non-)centralist a position the courts will adopt in federal systems. How responsive they will be to fundamental rights claims – and comparative studies show the importance of legal-opportunity structures, and admissibility rules in particular, in that regard.

But having no constitutional review is also an institutional design choice, and one that should be justified as well. Fundamentally, the question is which ‘instruments of contestation’ are put in place in the overall design, whether in the political or the judicial sphere, or both.

What can be added to the paper in this respect is the multilevel perspective, which is relevant especially – but not exclusively – in Europe. The paper mentions article 120 of the Dutch Constitution, prohibiting courts from reviewing statutes against the constitution, but there is also article 94, which mandates them to review these acts against provisions in international treaties. And individuals have access as well to the European Court of Human Rights (ECtHR) –the same is true for the UK and the Scandinavian countries.

The counter-majoritarian argument is even stronger in these cases, which makes it especially interesting to examine how the ECtHR balances strategic, legitimacy and rule-of-law concerns, for example through the European consensus doctrine and procedural rationality review.

The multilevel perspective also complicates strategic decisions regarding national institutional design. Constitutional courts may construct constitutional narratives protective of national values and sentiments that may influence

supranational courts through judicial dialogue. They also provide individuals with access to the EU Court of Justice without having to provoke litigation. At the same time, supranational control mechanisms may encourage governments, especially where constitutional review is absent, to introduce stronger pre-enactment control mechanisms.

• Reasons for judicial restraint

The question of when courts should exercise restraint, when they should be combative, and at which point they cross the fine line between guarding constitutional values and promoting personal ideological views is complicated, and one for which the paper offers useful premises.

Recent events brought attention to this point worldwide when courts had to decide what room they have for the scrutiny of health crisis

COMMENT: Theunis Roux

Jeff’s first main claim is that some of the classic justifications for conferring the power of constitutional review on judges don’t really hold up when pressed: (1) the fact that the constitution explicitly allocates this power leaves the moral justification for doing so unaddressed; (2) the power is not a necessary accompaniment of constitutional democracy, as the functioning systems of the UK, Israel, New Zealand, the Netherlands and the Nordic countries attest; and (3) the constitution does not necessarily embody a superior democratic mandate given the non-representativeness of some constitutional assemblies, the problem of judicial discretion, and the waning of the constitution’s democratic mandate over time.

I agree with all of these points, save to say that certain constitution-making moments, such as India’s from 1946–1949 and South Africa’s from 1991–1996, are imbued with an almost mythical, national-character-defining significance that does bolster their claim to superiority over the necessarily more ephemeral alignments of contemporary democratic politics. The question is

measures. The case illustrates how judicial deference is based on legitimacy and expertise concerns. First, the room for legitimate judicial scrutiny appears to be inversely proportional to the government’s discretion, defined in terms of public trust. For example, in Belgium, the Council of State was deferential in a first phase, when public trust in the government was at its peak, but found more room for scrutiny in later phases, when trust in the government waned. Secondly, a procedural-rationality check overcomes the expertise concern mentioned in the lead-in paper. Instead of deciding the matter, courts can also examine the procedure to see whether it contained sufficient safeguards for informed and balanced decision-making.

Importantly, these issues call for stronger collaboration between legal and empirical scholars.

whether all of the things we want constitutionalism to do are better achieved by respecting the trans-generational significance of such founding moments versus treating constitutions as a Jeffersonian once-in-a-generation exercise.

Jeff’s second main point is that that the justification for constitutional judicial review must ultimately be an instrumental one: Does this institution in fact promote the kind of society that a defensible political theory recommends? This question, he argues, can’t be decided theoretically because there are many such competing theories about which people reasonably disagree. Rather, the political theory that best justifies the constitutional arrangements in any society must emerge out of the history of that society, fitting it culturally, politically and legally.

This, too, squares with my own sense of things, save that I have come to prefer Philip Selznick’s explanation of how we pursue ‘ideals in the world’, rather than pure instrumentalism, as best expressing what is going on here. Both our understanding of the ideals at stake in constitutionalism and the strategies we deploy to achieve them should be

susceptible to adaptation in the light of experience. It is not the case, in other words, that we need to agree at constitution-making moment T1 exactly what the rule of law or the separation of powers means and then try to implement these ideals until experience tells us that they are either working or not. Rather, liberal constitutional democracies are ongoing experiments in constitutional governance that work best when they provide for feedback mechanisms, not just on whether a particular ideal is being realised or not, but also on whether our original conception of that ideal was the best one or not.

On Jeff’s point about the legitimacy of constitutional judicial review in the Global South, I agree that the counter-majoritarian difficulty is less of a concern there. Rather, in the two countries I know best, India and South Africa, it is the legitimacy of the founding moment that is now centrally in contention. The dispute, in other words,

is not so much over the fact that the power of constitutional judicial review was given to judges, but that this power was given to them to enforce what are alleged to be alien Western values.

Judges can meet this challenge through the sensitivity with which they exercise their mandate, making sure always to ground their decisions in local understandings of the values at stake. But there is also a role for constitutional theorists to address this challenge head-on by interrogating how alien the constitutional values adopted in India and South Africa really are. In both countries, the constitutions emerged out of a history of anti-colonial struggle that gave an indigenous inflection to ostensibly Western political values like the rule of law and the separation of powers. We can either see this as a story about mentally colonised constitution-makers, or we can see it is a story about the creative adaptation of these values to the circumstances of the Global South.

CHAPTER 7:

Federalism and Democracy

Lead-in: Patricia Popelier

Introduction

Federal arrangements are gaining popularity as ways to structure political systems. Observers count 251 to 302 federal countries, representing 40 per cent of the world’s population. Worldwide, federal arrangements have become a popular device for post-conflict reconstruction programmes. At the same time, federalism is in the doghouse, especially where it has become politically loaded. In EU scholarship, for instance, it has become ‘the F-word’. A victim of its own success, federalism is a notion with many meanings. Moreover, traditional federal theory has been indulging in navel-gazing, with some vintage Western prototypes having been promoted as superior forms of state on which other multi-tiered systems, worldwide, should be modelled to deserve being described as ‘genuine’ or ‘mature’ federal systems. All this makes the notion difficult to theorise – despite more than a century of vast scholarship – and difficult to use as a guide for institutional design, despite its popularity in practice even where the word ‘federalism’ is consciously avoided. We therefore need to rethink federalism.

This contribution gives some thoughts on a new approach to federalism, based on my book, Dynamic Federalism, 3 and my chapter on federalism and democracy in the edited volume, Cooperative Federalism in South Asia and Europe.4 It concentrates on the relation between federalism, constitutional principles, and democracy. The line of thought is the following:

(1) We must separate the notion of federalism from other principles with which it is too often confused.

(2) Only then can we study in a more pure and nuanced way the relationship between all those principles: where they weaken each other, and where they reinforce each other.

(3) To that end, we also need a more nuanced theory of federalism itself, one which distinguishes between different types of federal systems. These categories always touch on the core of federalism but at the same time operate according to very different paradigms, with the result that their relationship between, for example, federalism and democracy also differs.

(4) In conclusion, there is an afterthought on cohesion, democracy and constitutional identity.

Federalism, democracy and the rule of law are principles in their own right

According to a certain strand in the federalism literature, democracy is inherent to federalism. For example, Swenden5 sees it as a defining feature of federalism. Burgess uses the notion of democracy to distinguish ‘mature’ from ‘flawed’, ‘incomplete’, ‘emergent’, ‘transitional’ and ‘aspiring’ federal systems.6 My take is that we should avoid mixing up federalism with other constitutional principles. The main reasons are twofold.

First, these are all principles in their own right, and mixing them up distracts us from their essence. For example, referendums are an instrument of direct democracy, but including them as a defining feature of federations, as an

alternative to the judicial adjudication of federalism conflicts,7 makes no sense because they reveal only whether citizens agree with the content of the proposal, regardless of which authority issues the measure. The rule of law is about individual self-determination and protecting personal autonomy or ‘Dispositionsfreiheit’, based on a fundamental distrust of governmental authority; democracy is about political self-determination that involves citizens in collective decisionmaking; and federalism organises communitarian self-determination through distinct layers of authority. As such, they raise different questions and require different institutional solutions. Only by distinguishing them can we identify similarities and differences, as well as study causal effects.

Secondly, by mixing them up, federal theory maintains a Western-centred approach, especially when linked to terminology that distinguishes ‘genuine’ or ‘mature’ (Western) federations from ‘aspiring’, ‘immature’ or ‘quasi’ (non-Western) federations. This relegates federalism in nonWestern societies, in emerging ones, and in non-democratic countries, to the fringes of federal theory as a form of multinational conflict management, whereas this is exactly where the most important challenges of contemporary federalism lie. In reality, even in Western countries federal arrangements do not aim to promote public accountability and responsiveness or combat majority tyranny. Instead, political systems worldwide use federal arrangements for a variety of reasons, such as for efficient territorial management of vast territories, for economic and military competitiveness through unification, or for the avoidance of civil war or secession through multinational conflict management. Non-Western political systems are mainly interested in federal arrangements for the latter purpose. By excluding systems that do not perform well on indexes that measure democratic quality or the rule of law, we lose valuable insights into how federalism operates.

How federalism, democracy and the rule of law

relate to each other

To understand how federalism and constitutional principles relate to each other, we first need to analyse each principle separately in its distinct forms and concepts. Depending on the concept and form, federalism can have both undermining and reinforcing effects on democracy and the rule of law, and vice versa. For example, where federalism favours a supermajority to safeguard subnational interests over unrestrained majority rule, this conflicts with a majoritarian conception of

democracy but coincides with forms of consensus democracy.

Federalism is in tension with democracy where it extends the role of executives at the expense of parliaments, but this is especially the case in cooperative forms of federalism. Accountability deficiencies arise in the case of cross-boundary issues if territorial entities, in the pursuit of their particular goals, veto central decision-making in the general interest but cannot be held accountable to persons outside their constituency who are negatively affected by their decision. Then again, an integrated party system reduces the costs of inter-state opportunism.

Federalism brings governance closer to the people where (and if) it creates more opportunities to hold elected office, but in coming-together federal systems, where powers are transferred to a more global level, distance is widened instead of narrowed. Federalism also brings more distance if autonomy for federated entities comes at the expense of more proximate local autonomy, which is especially problematic for metropolitan cities with specific features, challenges and needs. Then again, non-traditional types of federalism can accommodate this through constitutional asymmetry.

Public choice theory stipulates that the political competition organised by federalism urges governments to take into account citizens’ interests, under the threat of citizens ‘voting with their feet’, but this assumes traditional homogeneous model federations: citizens will be less inclined to move in types of multinational federalism if it means that they will have to accommodate themselves in a very different culture and learn another language.

So far, federal theory has paid too little attention to the different types of federalism and their varying paradigms and institutional features. In particular, the degree of institutional cohesiveness seems to be an important factor. For example, federalism is said to offer additional checks and balances, but this is mostly true in more cohesive types of federalism. This is the case, for example, in cooperative federal systems with shared powers that allow subnational entities to act if the central government fails to do so and allow the central government to interfere if the subnational entities disregard the general interest. Or in organic types of administrative federalism, where subnational entities execute central law and are involved in central law-making to secure implementation. Checks and balances are less intense in dual types of federalism, where central and subnational

governments have separate and exclusive fields of competences and cannot interfere in each other’s policies.

Unfortunately, the choice between high or low cohesive types of federalism has been ignored in empirical studies that measure the effect of federalism on democratic quality or on fundamental rights. For example, on the basis of findings by Rodden and Wibbels8 that an integrated party system reduces the costs of inter-state opportunism, we can hypothesise that high-cohesive federal systems also lower the risk of inter-state opportunism, though at the cost of complexity. The same goes for low cohesive but highly centralised federal systems, but then again these may suffer from another democratic deficiency if the central level ignores the interests of minorised regional sub-groups.

Studies find that decentralised policy-making has a positive effect on rights protection and economic performance but not by definition; or that there is a positive correlation between political decentralisation and democracy, but only in certain contexts.9 Such studies, however, tend to define federalism in terms of autonomy alone. The question is whether cohesive institutional design may explain the nuanced outcomes – whether it correlates more strongly with democracy, and whether it strengthens the impact of political decentralisation on rights protection and economic performance.

If this indeed proves to be the case, the next question is about the conditions under which inserting institutional cohesion is a realistic option. Arguably, there is some correlation with the presence of social cohesion, meaning that the members of a collectivity share a feeling of togetherness, expressed in positive attitudes and a desire to maintain membership.10 This, however, is by definition lacking in divided societies. This raises a multitude of questions. For example, does stability outweigh constitutional principles? In the absence of social cohesion, is it possible to build social trust as an alternative basis for a cohesive type of federalism? And how much cohesion is actually needed to ensure constitutional principles as well as stability?

According to Requejo, building trust is indeed key for organising divided multinational federal systems.11 He recommends ensuring the participation of subnational entities in central decision-making, protecting them against central action, and providing exit options such as secession clauses. These tools, however, aim at protecting subnational

autonomy rather than inserting cohesion –including the shared power tool if its purpose is to protect the subnational entity’s interests. In dyadic systems, shared decision-making by two more or less equally strong subnational entities easily leads to deadlock. There, the strategy would rather be to organise a dual type of federalism to avoid intergovernmental cooperation as much as possible – Belgium is a prominent example – and to organise power-sharing systems at the central level that force each party to take into account the needs and interests of the other party but which are not aimed at fulfilling a more general interest. In Belgium, this combination of high subnational autonomy and medium cohesion has ended up diminishing trust between political elites.

The conclusion is that federalism comes in many forms. The choice of a particular type depends on several factors, including social structure, which in turn determines stability and the degree of democratic quality and rule of law. So far, federal theory has distinguished between dual and cooperative types of federalism, but has not used it to theorise federalism in a more inclusive, comprehensive and differentiating way. This brings us to the last section.

Rethinking federalism: Dynamic federalism

In a dynamic federalism approach, federal systems are defined as multi-tiered systems (MTS) in search of a proper balance between cohesion and subnational autonomy.

Autonomy refers to the ability of subnational entities to organise themselves, make their own decisions, and secure their interests in central decision-making. It refers to self-rule, but also to shared rule where it allows the units to control central decision-making. But it is also about self-organisation: the ability to create their own governing and adjudicative bodies and decide on the main principles that guide their operation. This dimension is the one which is examined the most often in federalism studies and de/centralisation studies.

Cohesion is not the opposite of autonomy (which is central authority overruling subnational authority). Instead, cohesion refers to the integrity of the political system by linking all tiers through mutual respect, common interest, and solidarity. In this way, it relates to the ‘federal spirit’, which is discussed as a ‘value’ in federal theory but is now incorporated in the very definition of federalism. More concretely, it refers to joint decision-making with the purpose of integrating and transcending all

(central and subnational) interests; to the creation of a common public sphere; to the safeguarding of common values; and to instruments of interregional solidarity.

‘Balance’ refers to the relation between cohesion and autonomy – not to the middle-point between centralisation and decentralisation, as is usually the case in traditional federal theory. It does not impose a specific equilibrium, but points to any possible proportion between the degree of cohesion and the degree of autonomy. These proportions are ‘balanced’ if the degrees of cohesion and autonomy correspond with what is considered

High – Low: Integrationist MTS

COHESION

Medium – Low: Consociation-based MTS

Low-Low: Deconcentrated unitary system

SUBNATIONAL AUTONOMY

optimal for a given society. This means that the idea of balance as the essence of federalism has universal validity, but the specific (desired) amount of cohesion and autonomy is context-bound. This makes it apt to categorise types of federal systems according to the balance that is struck between the two dimensions. Accordingly, nine types of federal system systems (or multi-tiered systems (MTS)) can be distinguished, depending on the degree of autonomy and cohesion which is inserted in the institutional design, based on a political agreement.

High – Medium: Federation type 1

Medium – Medium: Regionalised system

Low – Medium: Decentralised system

Importantly, this balance is essentially contested. Changes in political preferences may eventually lead to changes in the institutional design, and even without institutional changes, to changes in the actual operation of the MTS. Moreover, the very fact that the consideration of what is the optimal combination of cohesion and autonomy may change, is part of the very essence of federalism. Therefore, change is incorporated in the institutional design itself. Change can come about through procedures for constitutional amendment, but so too in other ways. For example, the technique of shared powers is more dynamic than the technique of exclusive powers. Courts may act as safeguards of the status quo, but also or as drivers of change. Institutional design may influence the extent to which they will act in one way or the other.

Figure 1, then, shows a menu for the organisation of federal systems depending on the degree of autonomy and the degree of cohesion political actors agree to incorporate in the system.

High – High: Federation type 2

Medium – High: Confederation

Low – High: Political association

Indexes have been developed to measure these degrees. For instance, Belgium can be defined as a confederation in its relation with the Flemish Community (medium cohesion – high autonomy) and a regionalised system towards the much smaller German-speaking Community (medium cohesion – medium autonomy). This shows that the theory also allows us to measure constitutional asymmetry – one of those features which are characteristic of many multinational systems but with which traditional theory struggles to give it a place.

Comparative studies are needed to understand under which conditions systems choose one type (and political actors therefore agree on which balance) over the other, and which factors explain changes in the type of state. Once federal system are analysed in terms of this balance, empirical studies can analyse whether the choice for one type or the other actually impacts on (which aspects of) democratic quality and on the protection of fundamental rights, and vice versa.

Figure 1: Types of federal systems

Importantly, the theory is not normative: it does not claim, for example, that the combination of high cohesion and high or medium autonomy is the best option for any federal system or something to which all federal systems should aspire. Much depends on context and political preferences. Even as a recipe for democracy, there is no onesize-fits-all solution, just as there is no one ideal model of democracy – majority democracy and consensus democracy being examples of models that are better suited either to homogeneous or heterogeneous societies, respectively. Dynamic federalism, however, does hypothesise that for a federal system to be robust and legitimate, the constitutional amendment procedure should be cohesive – even in systems that opt for low cohesion.

Afterthought: Cohesion, constitutional values, and constitutional identity

Cohesion assumes, amongst other things, that the same constitutional values and principles permeate the multi-tiered system as a whole and that each of its tiers separately, are based on the same principles. One way to enshrine this institutionally is via the homogeneity clause, namely a clause that expresses the values and principles that underpin the entire system and which the subnational entities, and subnational constitutions, must subscribe to. This can be any value, but often it implies the protection of democratic rights and values.

For example, the US Constitution requires adherence to a ‘Republican’ form of government (article 4, section 4), one which is not specified further but comes down to a type of representative democracy. The South African Constitution refers to the values of integrity, representative democracy, human dignity and human rights, constitutionalism, the rule of law, and cooperative government.

Adherence to the same constitutional values, then, is an indication of cohesion, and a condition for mutual trust. Federal trust is considered to be crucial for the survival of a multi-tiered system, because it assumes that even if there is no consensus over issues, the different tiers nevertheless rely on each other’s good intentions

and integrity and are committed to maintaining the partnership.12 Mutual trust is a principle of EU law, and is laid down in as many words in section 41 of the South African Constitution. However, trust is a psychological state of mind that is triggered by various factors, and we can control – more or less – only one of them: the trustworthiness of the trustee, which depends on its ability, benevolence, and integrity.13 Benevolence refers to the trustor’s expectation that the trustee will act in consideration of the trustor’s needs. Integrity refers to the trustor’s expectation that the trustee will act in line with the same values and principles as those to which the trustor adheres to. This way, benevolence and integrity underpin the notion of cohesion.

The question, then, is how to ensure that all tiers and the entire system adhere – and keep adhering – to the same values and principles; and that these values and principles are interpreted in the same way. Usually, this is considered from a top-down approach, with the central government overseeing compliance by the several sub-states. Equally interesting, however, is a bottom-up approach, where subnational entities feed the global value system.

The European Union is an interesting case in that respect. Article 2 of the Treaty on the European Union sums up the values deemed common to the Member States, such as human dignity, freedom, democracy, equality, the rule of law, and respect for human rights. Democratic backsliding, especially in Hungary and Poland, shows how important it is for the entire system that each tier indeed adheres to these values, and that some enforcement system is put in place to that effect. The notion of ‘constitutional identity’ has been shown to be a Trojan horse in that respect: conceived as a notion to safeguard constitutional values and fundamental rights against economic efficiency-pursuing EU rules, it is used by illiberal regimes as a defence against democratic values and fundamental rights. This has diverted attention from what the notion can also mean, namely an instrument to feed the political system – here: the European Union – bottom-up, with constitutional values, or interpretations thereof, that have not yet been properly defined at the central level.

COMMENT: Johanne Poirier

Patricia Popelier’s lead-in on federalism as a mode of governance contains a number of thoughtprovoking statements that invite us to unpack some orthodoxies about federalism. Let me offer six observations that waltz between blue-sky thinking and brown-earth realities.

First, Patricia makes the case for distinguishing between federalism and (other) constitutional principles so that we can better assess their actual interaction.14 I think this is wise. Beyond a commitment to some form of power sharing, some federations are not committed to constitutional principles that we often associate with liberal constitutionalism, such as democracy, human rights and minority protection. In a sense, we might say that federalism is dependent on constitutionalism, but not necessarily on liberal constitutionalism.

Secondly, this being said, one principle that might be indissociable from federalism is the rule of law. When it is incarnated in some concrete polity, federalism requires a written constitution, some form of umpire, and a commitment to abide by the basic contract – hence to the rule of law.15 In fact, I would suggest that Patricia’s statement that ‘[t]he rule of law is about individual self-determination and protecting personal autonomy ... based on a fundamental distrust of governmental authority’ is too narrow. The rule of law requires public and private actors to abide by legal rules (generally, positive law), and it generally implies a (judicial) actor that clarifies and enforces those rules. Even adamant critiques of liberal constitutionalism (and of the constitutional review of legislation by the judicial branch, for instance) rarely extend their criticism to the role of law and of judges in federal arrangements. In brief, federalism - as an aspirational concept and as mode of governance - requires some adherence to legal normativity.

Thirdly, Patricia also makes a compelling claim for unpacking the diversity of federalism. I personally use around 30 labels when teaching comparative federalism. They include several mentioned in the piece: ‘coming-together’ vs ‘holding-together’; dyadic vs polycentric; ‘dualist’ vs ‘integrated/ organic’; competitive vs cooperative; (a)symmetric;

multinational (and not); colonial vs postcolonial, etc.16 Some of these labels are descriptive, others are evaluative. The point is that it is impossible to simplistically isolate the ‘federal’ variable per se. We cannot respond to the question ‘Does federalism matter to democracy, human rights, effective policy-making, etc.?’ without clarifying what kind of federal configuration is at stake. In other words, we need a far more fine-tuned and contextualised understanding of concrete federal arrangements and culture to begin to assess the interaction between federalism and other constitutional principles, as Patricia invites us to do. In our blue-sky vs brown-earth discussions, we need to constantly ponder whether the principle of federalism, alongside all the other constitutional principles that liberal democracies rest on, need to be rethought in non-Western contexts.

Fourthly, Patricia and Assefa Fiseha – in his piece in the present volume – both point to federalism as a mode of conflict management. Multinational federalism indeed conveys a robust institutional recognition of pluralism. It is sold as (one of) the most effective way of providing autonomy to (certain) groups. It gives them not only rights but power.17 However, by definition, and pragmatically, multinational federalism draws borders between groups on the basis of identity. Does multinational federalism presume consensus between ‘homogeneous’ nations? If so, does it not push ‘downwards’ the very issue that it is supposed to resolve? Does it promote ‘mono-identities’ that are prone to populist capture? How can we salvage multinational federalism (I am a proponent of it!) from this risk?

Fifthly, these last two reflections invite a fifth one: Are human rights and federalism allies or foes? Proponents of human rights tend to see federalism with concern. If federalism allows for diversity, could it be that human rights might receive a different treatment in different parts of the same country? For many, this seems anathema to the very conception of human rights. And yet, some of the theoretical virtues of federalism, notably the promotion of diversity and innovation, also ply their trade in the area of human rights.

To give but one example, it may be easier to introduce rights for LGBTQ2S+ in some constitutive entities than to obtain consensus at the overall federal level. The same might be said of certain socio-economic rights. Entrenchment of rights at the ‘local level’ can lead to emulation or deep learning – both side-effects of innovation. Moreover, as we saw above, rights divorced from power, from some form of self-government and participation, can leave ‘rights-holders’ dependent on institutions they do not control for protecting ‘nice words’ in a constitutional text.

That said, regressive politics, particularly if they are enmeshed in nationalism and populism at the local level, might lead to retrenchment of rights protection. In this context, it has been suggested that the federal constitution might include a bill of rights that acts as a floor, not as a ceiling, so that entities may increase rights protection but not restrict them.18 Reflecting in the intersection between federalism (and its concrete incarnations) and human rights (properly contextualised) is a promising avenue for blue-sky thinking grounded in brown-earth realities.

Finally, Patricia rightly challenges the idea that autonomy and cohesion are somewhat opposing values that ought to be balanced in any federal arrangement. In fact, cohesion is a sine qua non condition of effective autonomy. Without some form of commitment to the system, central authorities might undermine constitutive units’ capacity to act on their own, to adopt their own (‘auto’) norms (‘nomos’). Conversely, without autonomy, cohesion will be fragilised. Patricia

reminds us that the particular equilibrium found between autonomy and cohesion is highly contextualised and that one ought not to aim for a particular formula, notably ones found in established federations.

The focus on cohesion invites some serious blue-sky thinking. Over the last few decades, as federalism has been promoted as a form of conflict-resolution mechanism (see point 4 above), major emphasis has been placed, both in theory and in practice, on measures of autonomy. These include institutional design, division of powers, constitutional protection, and the drawing of internal borders. Much less thought has been invested in how to maintain and promote cohesion. As groups gain autonomy and self-government, there ought to be consideration of means by which the relational dimension of federalism could be fostered.

This can involve institutional participation, of course (second chambers, parliamentary or political party quotas, etc.). But, maybe even more importantly, cohesion requires fostering a culture of respect for others, including former adversaries who, somehow, are now partners in a new arrangement. How do we ensure that people(s) know each other’s histories and stories – as education, culture and media become devolved responsibilities? How do we engage citizens’ solidarity across newly (and presumably) legitimate boundaries? How do we bring kids from different groups to play together in the same brown earth (sandbox) in ways that nurture a sense that they share the same blue sky?

COMMENT: Eva Maria Belser

The lead-in-piece on federalism, which is based on the author’s book Dynamic Federalism, urges federal scholars to separate federalism from other constitutional principles, such as democracy and human rights, and only then, when the different principles are surgically separated, study their relationship. According to the author, this requires a more nuanced theory of federalism. The present brief comments relate to the lead-in-piece only, not to Patricia’s book more broadly.

The main reason for Patricia’s appeal to stop mixing

federalism with other constitutional principles is, first, that such empirical and analytical blending distracts one from the essence of the principles and prevents us from understanding interactions between them. The conceptual disentanglement, secondly, is meant to help end the universalisation of Western concepts and bring non-democratic (and non-rule-based) systems from the edges to the heart of federal studies.

I agree with Patricia that federalism, democracy, and the rule of law are different concepts requiring

different institutions and strategies (and different panels), and that we risk losing important insights by throwing federal, democratic, and good governance indices all in one pot and stirring it. It makes sense to sharpen terminologies and theories.

However, I doubt whether we can separate the principles as clearly as suggested without modifying them. If the very essences of the principles overlap like Siamese twins sharing vital organs, separation is life threatening and can end up with only one or none of the babies surviving. Of course, matters are blurred if we conclude from a deficient human rights situation or democratic decline that federalism is immature. At the same time, autonomy is hard to grasp without referring to its legal (and judicial) protection, democracy hard to define without considering individual rights and freedoms, cohesion vague without reference to collective (and democratic) decisionmaking. Separating the principles forces us to use very thin definitions of the principles (e.g., ‘the rule of law is about individual self-determination […] democracy about political self-determination’) and to cut out, from each principle, what would lead to intersections and connections.

If we attempt to ‘cleanse’ federalism from individual and collective self-determination and other attachments in order to get to a ‘pure’ understanding, we must also constrict federal theories. Public choice theory, for instance, stipulates ‘that the political competition organised by federalism urges governments to take into account citizens’ interests’. Patricia draws our attention to the fact that we must bear in mind that people are less likely to vote with their feet when this requires assimilating into a different culture. More generally, however, if we follow a thin understanding of federalism, we must be aware that people may not at all be allowed to express their interests or be permitted to speak up or vote at ballot boxes or with their feet.

I am not sure whether purging federalism from overlaps with democracy and the rule of law will make the concept less Western or help to better understand non-Western political systems. There is no doubt that federal theory has neglected

many forms of federalism by using narrow lenses – but this is true for all the continents. Even a ‘purified’ understanding of federalism continues to focus on constitutions, courts and other institutional actors and thus on entities which are of limited relevance in many places of the world. Universalising our analytical tools might require us to start from scratch much more fundamentally. Why should federalism, democracy, and the rule of law – separated from each other – offer more universal standards? As long as we fail to develop new theories together (which might include non-territorial governance, non-state law, legal pluralism, etc.), the risks of getting it wrong remain high.

I also wonder whether it makes sense, when rethinking federalism, to continue defining it as a binary system balancing the autonomy of ‘subnational entities’ and the integrity of the overall (national) political system. States of all forms are also characterised by more or less autonomous local governments which are empowered or not to secure their interest in regional and/or central decision-making. In addition, centres also enjoy more or less autonomy to organise themselves, to make their own decisions, and to secure their interests in international (and sometimes subnational or even local) matters. Is that binary approach not itself biased towards the old ‘coming-together’ federations and the new ‘holding-together’ federations of the West? Rethinking federalism undoubtedly profits from zooming in on the relationships of two actors. However, ignoring Babushka federalism also seems to harbour the risk of misunderstandings.

In sum, I believe that it makes sense to analyse the different constitutional principles separately (and to form an opinion on their ‘autonomy’). Sharpening our analytical tools, however, does not oblige us to rely on watertight compartments and reject overlaps. While there is indisputably a need to sharpen our analytical tools (and to universalise and contextualise them), I am not sure we must necessarily first separate the constitutional principles and then study their interaction. The overlaps and relationships – the ‘cohesion’ of the principles – seem just as determinant.

COMMENT: Zemelak Ayele

I often have debates with my students about whether some African countries that choose not to call themselves federations yet exhibit features of federalism could indeed be considered federations. The countries in question include Kenya, South Africa, Sudan, South Sudan, Congo, and even Zimbabwe. Kenya does not call itself a federation, but is a country with a devolved system of government. South Africa also avoided the use of the ‘f-word’ with reference to its multilevel government system. Another topic of debate in my class is whether Ethiopia is a genuinely federal country despite its constitution saying so. Students often argue that Kenya and South Africa are federations, even though they chose not to call themselves so. Likewise, Ethiopia does not qualify to be called a federation, since it is not a democracy.

By distinguishing federalism from other constitutional principles that are not inherent features of federalism, Patricia offers us a fresh perspective and useful tool for settling similar debates. She suggests that African federations, such as Ethiopia, which lack democracy can still be counted as federations. She also goes beyond the dual vs cooperative federalism dichotomy, since it does not tell the whole story about federalism. Her conception of dynamic federalism provides a fresh perspective in theorising federalism. In terms of the concept of dynamic federalism, any multitiered system now can be considered a federation

so long as it seeks to strike ‘a proper balance between cohesion and subnational autonomy’.

The concept of autonomy here seems the same as the concept of ‘self-rule’, which is one element in the definition of a federal political system. Cohesion is, however, more than simple shared rule. Cohesion, as defined by Patricia, is about maintaining ‘the integrity of the political system by linking all tiers through mutual respect, common interest, and solidarity’. And a balance between autonomy and cohesion is not simply about finding a middle ground, but about maintaining a balance between autonomy and whatever works for a given political society or in a given political context.

Now a federation does not have to look like a Western federation to deserve the name ‘federal’, so long as it is designed and seeks to maintain the balance between autonomy and cohesion. This is indeed a fresh approach to theorising federalism, one which prevents many countries from being excluded from studies of federalism.

Yet this raises several questions. I assume all multilevel government systems, in one way or another, grapple to maintain a balance between autonomy and cohesion. Are all of them then to be considered federations? Can a country maintain a multilevel government but yet not a federation? Does this mean there is no relevant distinction between federalism and, say, decentralisation?

CHAPTER 8:

Federalism as a Conflict-Resolution Mechanism

Lead-in:

Assefa Fiseha

Introduction

Federalism as an organising principle combining shared rule in central institutions and self-rule at constituent-unit level has been used to achieve varying ends.1 Older and established federations adopted such an arrangement to protect themselves against real or perceived external threats, to serve as a means to disperse power to many centres, and to prevent majority tyranny at the centre. Other considerations were creating greater economic markets and facilitating the free movement of labour and capital, as well as enhancing democratic citizen participation through multiple access points, and creating opportunities for innovative policy options at the sub-unit level.

As the nation-state was the hegemonic political and ideological framework, unity and territorial integrity, social cohesion and individual rights remained core values, with public policies (in regard to education, language, culture, history) being designed to promote them. In some countries, economic growth and respect for individual rights made issues related to diversity and minority rights less visible. In other countries with inequality and discrimination among citizens, the demand for inclusion and accommodation was more visible.

Overall, until the mid-1950s, melting-pot assimilation policies, the notion of promoting one national identity, and a variety of theories (liberalism, socialism, modernism) were aimed at assimilating (or integrating) minorities and in the end causing them to wither away.2 Yet politically mobilised regional and ethno-national groups continued to pose a serious challenge to such a framework. In response, the context began to change after the mid-20th century and the developments that occurred at international and national level.

Old minorities, new migrants

After the Second World War and as part of an effort to prevent possible conflicts, human rights protection took centre-stage. The civil rights movement and the subsequent adoption of several human rights treaties created favourable conditions for previously suppressed groups. In the 1970s, the human right revolution (rights of ethno-national minorities, indigenous people, gender equality, multiculturalism)3 led to federalism and devolution countering the nation-state framework.

Many countries in the West, among others Spain, the United Kingdom, Canada, Italy and Belgium, reconfigured their nation-state to accommodate sub-statebased regionalism and nationalism, which ensured political autonomy for Catalonia, Scotland, Quebec, South Tyrol, and Flanders, respectively. Existing nation-states were reconfigured so as to open up space through constitutional designs that made sub-units a majority in their territory, gave them political autonomy, and provided them with fair representation in federal institutions.

In the case of Canada and Belgium, these countries went even further, declaring themselves as multinational and recognising multiple identities. Centripetal and centrifugal forces were kept in a delicate balance, with the balance swaying in different directions at different times. Coercive nationbuilding processes in these countries were renegotiated, and the new social

contract has made significant progress in the federalism discourse.

Federalism’s relevance as a means to manage diversity and reduce conflict in a context of politically mobilised diversity owes its origin to these developments. Switzerland remains the grand exception, since from the outset (1848) it did not adhere to an assimilationist nation-building project. Equality of languages, a consociational federal arrangement, and substantial cantonal autonomy served as glue to an otherwise multiethnic country in the heart of Europe.

Yet demands for more accommodation and, in some cases, secession continue to put pressure on political actors. Feuding among Belgium’s different communities, along with secession demands in Quebec, Scotland and Catalonia, show the continued tension between those who want to maintain unity and territorial integrity and those that demand more autonomy and, by extension, more innovative institutional and policy arrangements.

Moreover, these countries face a new wave of migrants due to their colonial history, their generous asylum policies, and the existence of ongoing intra-state (Yemen, Syria, Afghanistan, Ethiopia, Sudan) and inter-state (Ukraine-Russia) conflicts elsewhere. Integrating the new migrants poses a serious challenge in its own right, and many right-wing parties have emerged in the West as a result.

Post-Cold War developments

In many emerging and post-conflict societies, the tension between those who hold power at the centre and push for unity and territorial integrity and those who demand greater inclusion and political autonomy remains intense, leading at times to deadly conflict. Following the end of the Cold War, this tension gave rise to what Arend Lijphart calls a ‘wave of ethnic conflicts’4 rather than to the promised ‘third wave of democracy’.5

It was in this context that federalism and devolution were introduced in many developing countries of the Third World (Africa, Asia, Middle East) as a means to manage diversity and reduce conflict. The discourse of federalism was linked to efforts to ensure peace in many conflict and post-conflict societies. This was not without reason. After the Cold War, inter-state conflicts decreased, whereas intra-state conflicts increased dramatically.6 Differences arising from ethnic and religious

backgrounds, and reinforced by the deprivation of power and resources, became significant causes of conflict and violence.7

According to studies, there are between 5,000 and 8,000 ethno-cultural and regional groups in the world’s some 200 states. Of these, one-tenth are believed to have an interest in self-rule and some form of autonomy.8 Indeed, this is more acute in Africa, where boundaries were hastily and artificially drawn up during the scramble for the continent in the 19th century. One can thus see the obvious tension between those who want to maintain the status quo and those who want to change it.

And this is where federalism comes to the rescue. Ideally, federalism provides a solution to the root causes of identity-based conflicts. Political and economic injustice caused by the state remains at the heart of identity-based mobilisation (relative deprivation theory: systematic and identity-based deprivation of groups from power and resources/ economy),9 but the search for dignity and the demand for recognition, collective security and self-esteem are the core factors that inflame it and give it emotive force. While relative deprivation theory focuses on the power and resource element, the human needs theory10 goes much further than it to include the need for collective security, the right to exist as a group, and protection from threats of genocide and ethnic cleansing – the passions and emotions that extend beyond the material interests of ethno-national minorities.11

Federalism provides an inclusive political system at the centre and autonomy at sub-unit level. Recognition and accommodation are pillars of federalism, and this combination goes a long way in responding to identity-based conflicts. Ensuring peace within states and ending war and conflict became the preoccupation of local, regional and international actors. Federalism, with its promise of promoting unity and ensuring self-government at constituent-unit level, was hoped to be an ideal solution and magic compromise accommodating the rival interests.

Yet, with the fragmentation of the former USSR and Yugoslavia, federalism was put to the test, and the jury was out as to whether the source of the problem was a federalist failure or centralisation and authoritarian party hegemony. In particular, two major strands evolved. On the one hand, there were those that argued on the basis of evidence from Canada, Switzerland, India and other plurination federations, which had remained both democratic and genuinely committed to the

federal idea and thus stable. On the other hand, there were those who focused on the former USSR and Yugoslavia, which according to many observers were sham or pseudo federations because they were centralised, with their failure being triggered by efforts by elites to reinforce centralisation. Such federations were dictated to by the centralised communist party, which was an obstacle to the implementation of the constitution and federalism. They were federations in form, not in reality; they were not democratic, and were never committed to the federal ideal.12

The overriding view is thus that whether federalism or devolution leads to stability or instability depends on many other factors.13 This context forced some to write about the ‘paradox of federalism’ because it has both potentials: it both constrains and enables secession.14

Given the above, one has to ask whether federalism helps in managing diversity and reducing conflict, or whether it reinforces cleavages and aggravates the problem it is meant to address. The question is thus: When is federalism an effective tool for managing conflicts, and when does it aggravate conflicts, possibly leading to fragmentation?

Highly pertinent is the nature of the diversity and cleavage we want to manage. Certainly the diversities are diverse. In some cases, we find less mobilised cleavages that are geographically dispersed and with little political mobilisation around identity; in others, different groups may be politically conscious but not have articulated demands for territorial self-government. Next are groups that are indeed politically mobilised but found dispersed in different territories. Some countries have a core nation and pockets of minorities, while others are inhabited entirely by minorities, with none of the groups alone constituting a majority. This tends to be the case in most African federal and devolved systems. How then do we design an inclusive centre and address demands from several minorities at sub-national level?

In the most extreme case, we find deeply divided societies. According to Horowitz, deeply divided societies are cases where identity-based politics have a high degree of salience exceeding that accorded to alternative forms of political mobilisation such as ideology, class, and gender, and where the relationship between groups is affected by deep levels of mistrust and antagonism, making it less than cooperative.15 As Sujit Choudhry argues, ‘a divided society is not merely a society which is ethnically, linguistically, religiously or culturally diverse … it is hard to imagine a state

today that is not diverse’.16 What makes a society divided is when the differences are politically salient and a distinct identity-based group uses them as a basis for political mobilisation. As such, identity becomes the prime source of political mobilisation around which claims for recognition, resource control, accommodation, and selfgovernment are framed, political parties formed, elections contested and governments composed.17 These forces affect the process of constitutionmaking and constitutional design.

Mobilised ethno-national minorities are

“regionally concentrated ethnic groups who once enjoyed or aim to enjoy political autonomy and have become part of states in which they constitute an ethnic minority through conquest, annexation, colonization or incorporation during the coercive process of nation building.”18

They mobilise politically around assertions of national identity and self-determination. The goal of such mobilisation is to recover the extensive self-government they claim to have enjoyed historically or aspire to have now. The degree of self-government they seek ranges from autonomy and national self-government to independent statehood, which may include secession.

Countries that have politically mobilised ethnonational groups cannot presume to have stable territory. The demands of such groups are framed and entrenched in relation to a particular territory, so the very existence and territorial integrity of the state is put to test.19 Territory remains a key aspect of mobilisation. Ethno-national groups aspire to self-government of a defined territory, at times claimed as a homeland and even wish it to be territory over which they exercise statehood, if they secede.

By contrast, the state insists on territorial integrity, unity, and full control of each territory. Contest over territory is thus an integral part of the political debate. Both are mobilised along nationalist lines: the overarching state nationalism that aims to ensure unity, territorial integrity and one national identity, as opposed to the ethno-national or regional group asserting self-determination, along with the sub-national political space that fuels it. The result is a clash of nationalisms. Countries hosting contested nationalisms suffer from legitimacy crises and democratic deficits, as those who hold power do not have an elected majority and substate entities do not accept their decisions. Such countries often resort to majoritarian democracy, creating chronic tension between those who hold

power and the permanent-minority ethnic groups, leading to deadly conflicts. The nation-building process is often coercive, and sub-state entities call for a new and inclusive social contract.

The issue then is whether it is possible to ensure peace, stability, and social cohesion in countries with deep societal divisions where ethno-national or regionally-based mobilisation prevails over other sources of mobilisation, and where demands for inclusion and self-government are overriding. However, we should note that the clash between state-led and ethno-national or regionally-based nationalism is not automatic. Clash and conflict are deliberate choices made by elites and other actors to achieve their political and economic goals. Short of conflicts and civil wars, institutional and policy options can be used to manage the contestation between the two nationalisms.

Divided societies thus pose special challenges unlike societies with softer cleavages. Countries with soft cleavages can resort to integration mechanisms, as is the case in Nigeria, South Africa and Kenya, although in Nigeria and Kenya integration has not resulted in full social cohesion and regional groups continue to demand more accommodation. Countries with deep cleavages pose a serious challenge to the discourse of federalism. Should a new federal theory be developed for such distinct cases?

But overall the question then is: What type of cleavage demands which type of institutions so that societies can live in peace and harmony where conflicts are managed and negotiated through processes and institutional arrangements? How have constitutions in the post-Cold War era addressed challenges related to diversity? Are there plausible lessons that can be drawn? When is liberalism and a bill of rights appropriate? When is power-sharing feasible? What is the role of electoral systems in this regard? When is federalism as a higher level of accommodation preferred and designed and, if so, of what type? Do we aim to politically empower the deep cleavages (territorially-based demands for self-government), or do we ‘crack’ and diffuse them, focusing on values that cut across the cleavages? Is there a magic formula for nesting the different identities? Is it possible to ensure democracy, stability, peace and social cohesion in countries with deep societal divisions? Why do some societies come together while others fall apart?

Populism, cleavages and federalism

Recently, there has been some retreat from the

federal idea. The rise of populist, right-wing political parties seeking to strengthen central authority and impose their will on sub-state autonomy is, along with their anti-immigrant and -diversity rhetoric and policies, posing a threat to the gains made with respect to federalism and ethno-national minority rights.20

Spain, in response to an attempted referendum on whether Catalonia should stay in the union or secede, has since 2017 imposed central rule and jailed political leaders from the sub-unit. The centre’s unitarist conception stands in sharp contrast to, for example, Catalans’ demand for a pluri-national state. A new far-right party even aims to end autonomy.21

India under Narendra Modi is not only centralising its federation but has also withdrawn a fivedecade-long promise (1947–2019) of autonomy to its restive Muslim-dominated Jammu and Kashmir region. Unlike its predecessors, which envisaged India as a diverse and multi-ethnic democracy, the party under Modi is pushing for centralisation under a Hindu-majoritarian cultural nation that could frustrate India’s gains.22

In the West, rhetoric about the failure of multiculturalism has been on the rise, interestingly from leaders and countries that only half-heartedly adopted such policies.23

· In Africa, Ethiopia waged a full-blown war on Tigray, a historic region that played a key role in the post-1991 federal process, and declared countless states of emergency and military rule in its regional states in 2020–2023. The new government that assumed power in 2018 has brought back ‘the greater Ethiopia’ narrative and considers the post-1991–2018 era as a disruption of the system.

Is there hope for federalism, given the rise of populist leaders and parties in different countries? Are we heading back to the nation-state model? Some are arguing that these developments should serve

as an important warning that in many cases where the central state opted to remove or threaten regional state autonomy – cases in point include East Timor, Eritrea, Kosovo, Montenegro, and Sudan (South Sudan) – regions affected have since gained their independence.24

Thus, a retreat from federalism does not seem to be the answer.

Enabling and constraining factors

Lastly, there are those who point out that federalism’s role in managing conflict should not be seen in isolation from other ethoses, and propose that there must be enabling norms and principles that back up whatever institutional arrangement a country choses. The overriding view – as noted previously – seems to be whether federalism or devolution leads to stability or instability depends on a set of other factors.25 For instance, some argue that

the design of a federal system in itself whatever type it may take … is not a panacea for conflict, nor however is it simply the next step on the road to secessionist conflict. It is at once a problem and a solution. Whether it is one or the other depends a great deal on other factors …26

The abstract debate as to whether federalism is a problem or a solution (articulated as the paradox of federalism) was subject to careful scrutiny, and the verdict, while far from conclusive, hinted that there are conditions under which it may be a solution and that in their absence could be the source of a problem. The list is long but includes:

• the presence or absence of functioning state institutions (in Iraq, South Sudan and Somalia, for example, there is little that federalism alone can do in the absence of basically functioning state institutions that are assumed to exist in any state, be it federal or unitary);

• the rule of law and constitutionalism (the absence of which has caused many federal and devolved systems in Africa to collapse or remain as mere promises);

• the degree of institutionalisation of political power and extent to which political power is constrained and serves the public good or is in the service of the political elite and other informal networks (federalism is thus a farce);

• the presence of dispute resolution mechanisms and whether the federal or devolved system is subject to independent legal or constitutional constraints when either level violates the federal pact (constitutional court or supreme court);

• the political will (foedus) and determination among actors to make the federation work (the absence of which has caused many post-colonial federations in Africa to fall prey to Big Men);

• the dynamics of centralisation and decentralisation;

• democracy;

• the nature of the cleavage and the level of mobilisation around it; and

• how the system treats citizenship and minorities throughout the federation and in the constituent units.

Overall, there is no evidence to show that wellfunctioning, democratic federations subject to the rule of law and constitutionalism can lead to fragmentation and violence.27

COMMENT: Yonatan Fessha

As Assefa rightly observes, federalism has increasingly emerged as an institutional response for dealing with communal tensions and as a tool for internal conflict resolution. However, the reception it has received should not be exaggerated. Although a number of countries in Africa jumped on the bandwagon of federalism in the early 1990s, one must also note that we have not witnessed plenteous demand for federalism or subnational autonomy.

While ethnicity has played, and continues to play, an important role in political mobilisation in most African states, subnational autonomy is not necessarily on the agenda of many of the political formations on the continent. Mostly, it is countries in the Horn of Africa that are now jumping on the federalist bandwagon. Beyond the Horn, the institutional response that many groups clamour for is a system which ensures representation of the different groups at the national level, thereby guaranteeing them a share of state power. Their

major goal is securing a power-sharing deal; the focus is on shared rule rather than self-rule. The reasons for this and their implications for the place of federalism call for further scrutiny.

Although federalism is increasingly championed or implemented in order to deal with the challenges of divided societies, the debate as to whether it accommodates or exacerbates divisions is, as Assefa highlights, far from settled. What is striking is that the debate happens almost in abstract and tends to ignore the diverse world of federations. Due to the constitutional borrowing that is increasingly common, we may not be able to say that ‘if you’ve seen one federation, you’ve seen only one federation’. There is some level of similarity between them. Still, we have diverse groups of federations. Yet the oft-quoted and widely read chapter of Jan Erk and Lawrence Anderson, which Assefa mentions, does not specify the design of the federation in question when it discusses whether federalism dampens or exacerbates communal divisions. Issues of design are mentioned only almost in passing.

In this regard, an issue that has not been given enough attention is the territorial design of a federation. More specifically, the question is: To

COMMENT:

Curtly Stevens

Assefa questions the effectiveness of federalism as a conflict-resolution mechanism in deeply divided societies. I agree in the main with his analysis of the issue, but wish to elaborate on two points.

First, Assefa rightly observes that many governments have settled on federalism for a variety of reasons. He argues that some governments accepted federalism even though it is not a panacea nor a solution in and of itself for managing diversity and reducing conflicts in ethnically varied communities. In the context of South Africa, this statement is true, as the promise of federal arrangements in South Africa post-1994 was employed in effect to manage conflicts between two major ethnic groups: white Afrikaners, led by the National Party (NP),

what extent should subnational units be defined ethnically? This is related to an important question posed by Assefa: ‘Do we aim to politically empower the deep cleavages (territorially-based selfgovernment) or do we “crack” and diffuse them, focusing on values that cut across the cleavages?’ Territorial structure is perhaps an important variable in designing a federal solution that helps to respond to the challenges of ethnic diversity while at the same time avoiding the danger of further entrenching and deepening those same divisions.

The debate as to whether federalism exacerbates or accommodates division is complicated by political practice that largely ignores the system. This links to the ‘enabling’ and ‘constraining’ factors or conditions that Assefa refers to. Important in this regard is the political commitment to the rule of law and fundamental human rights. The first is crucial in ensuring the realisation of the promises of federalism, while the second helps to avoid political instability and promote social cohesion. If constitutional rules are breached at will, and the fundamental rights of individuals that belong to minorities are violated with impunity, then the federal experiment is less than likely to succeed.

and the Inkatha Freedom Party (IFP) – both of which called for federalism, in contrast to the African National Congress (ANC), which sought centralised government. The IFP wanted South Africa to be called the ‘Federal Republic of South Africa’, in contrast to the ANC’s vision of a united South Africa. The former thus demanded selfdetermination or extensive provincial autonomy for KwaZulu-Natal. On the other side of the political spectrum, the Conservative Party (CP) and various right-wing extremist organisations demanded a form of racial federalism, with self-determination for Afrikaners via their own state or Volkstaat

In order to build a broad consensus on the construction of the new Constitution, it was necessary to reconcile all of these divergent

interests and reach a compromise. Assefa is thus correct when he states that ‘these forces affect the process of constitution-making and design’, as both the Interim and Final Constitution established a variety of federal characteristics designed to meet the aspirations of the federalist parties. These include the recognition of legitimate provincial autonomy through Constitutional Principle XVI and the recognition of the status of traditional leaders.

The above federal demands are yet to be realised in South Africa, with leading scholars observing a decline in the federalism debate, an observation also shared by Assefa. He accurately notes that there have been some retreats from the federal debate in recent years. This statement too is true of South Africa. Indeed, having achieved its objective – preventing the IFP and other parties from resorting to violence and boycotting the Constitutional Assembly, the body tasked with drafting the final Constitution – the ANC immediately moved towards centralisation. Just one year after the adoption of the 1996 Constitution, Thabo Mbeki, the then-president of the ANC, began to centralise power to appoint and dismiss ANC officials, including provincial premiers.

Various other factors also led to the decline in federalism, including the demise of right-wing parties (those that advocated for federalism) and the IFP’s election support in KwaZulu-Natal. The underlying conflict and cleavages on which federal arrangement promises were based disappeared when ethnic politics lost much of its appeal

following the inclusion of different ethnic groups both in the national and provincial governments.

Much of the decline can also be attributed to the ANC. The party does not see or list the federal agenda as among its policy priorities. Indeed, in 2010 it adopted a proposal to review the number of provinces in South Africa, an issue which was also tabled in Parliament for debate in 2019. There have been limited objections to South Africa’s current inclination towards centralisation by political parties, especially the IFP, which declares itself as the ‘champion of federalism in South Africa’. In recent years, the Democratic Alliance (DA) has been the primary political party advocating for the enforcement of the Constitution’s federal ideals. It calls for the national government to strengthen provincial and local government autonomy by devolving more powers to address service delivery challenges such as those experienced in policing, transport, and electricity.

Resultantly, federalism in modern South Africa aims to play a different role. It no longer seeks to ‘bring people or diverse interest groups together’, as Ronald Watts observed, and nor is it concerned with reducing ethnic tensions; rather, it is directed toward managing inefficiencies in service delivery resulting from national government failures. The South African experience thus shows that federal arrangements are not static. It demonstrates that when conflict or the fear of conflict subsides, or when the problem is politically resolved, the federal process may wane. This is exemplified by the failure of the Volkstaat movement.

CHAPTER 9:

Definition and focus

What do we understand under the term ‘decentralisation’? There is the ‘basket’ definition: the distribution of state powers away from the central government. Non-centralism could thus include federal arrangements concretised in a constitution, delegation of powers to local government, and even the informal accommodation of traditional leaders. Daniel Elazar’s definition is narrower and more precise: it is the transfer of powers by the centre to subnational units – usually local governments – without constitutional protection; as the transfer is at the will of the centre, powers can again be recentralised. This is also the definition used in the African Union’s African Charter on the Values and Principles of Decentralisation, Local Governance and Local Development of 2014: ‘the transfer of power, responsibilities, capacities and resources from national to all subnational levels of government’ (article 1).

For the purposes of this discussion, decentralisation refers to the transfer of power to local government, whether by statute or a constitution. Local government itself is an elastic term, which includes a range of institutions from village councils to metropolitan cities. What they have in common is that there is no other order of government between them and the communities they serve, leading to the claim that it is the government ‘closest to the people’.

Decentralisation trends and challenges

A scan of the local government landscape globally reveals a number of trends. Urbanisation and cities dominate decentralisation

While the global percentage of urbanisation in 2018 was 58 per cent, the UN’s expectation is that by 2050 it will increase to 68 per cent, with Africa and Asia responsible for 90 per cent of that growth. In particular, a dramatic growth in mega-cities will be witnessed in the Global South.

Thus, although the majority of local institutions (communes, municipalities, village councils, etc.) globally have a population size of less than 5,000 inhabitants, the bulk of citizens live in cities. Cities are not reflections of communities with a peculiar common identity but agglomerations of diverse economic actors and consumers of basic services. Cities are seen as economic functional entities, a reality which in in a few countries is also reflected in their political boundaries – large urban governments.

Cities across the world show two faces: they are the engines of economic activity and growth, on the one hand, and human settlements fractured by poverty and inequality, on the other. There are insiders and outsiders to what the city can offer. As cities became the locus where broader societal problems come together, city governments were given the burden of responsibility to deal with them. Claims are also made that they have the superior ability and legitimacy, due to their close democratic foundations, to deal with the issues effectively.

Also, in the face of central governments’ failure in the Global South to address socio-economic issues, decentralisation is posited as a cure. International agencies and Western donors provided various support packages for furthering decentralisation in the Global South.

Given their expanding status in numbers, competencies and importance, it is increasingly argued that cities should be recognised formally as a constitutional order. Ran Hirshl1 shows that cities are economic engines and addressing the challenges of environmental protection, climate change, poverty, and international migration. However, their role and status are not recognised in constitutions: there is a constitutional ‘silence’. He points out that most socially progressive urban initiatives take place outside of the constitutional framework rather than as part of it. Ironically, constitutions in the Global South show more flexibility and provide some recognition of cities. He thus advocates for placing the city back in the constitution.

Cities are struggling to meet the challenges of urbanisation

In the Global North, as evidenced by the various social movements, problems of alienation, inequality, and marginalisation seem to increase; city governments appear to be overwhelmed by the major socio-economic challenges of the day. Cities remain divided and are increasingly unable to sustain themselves from own-source revenue and becoming dependent on central transfers. Central governments are increasingly expecting cities to solve (and fund) socio-economic challenges that used to be within the remit of central government, such as migration, crime, social welfare and public health.

In the Global South, despite national rhetoric and international support, the practice of decentralisation remains distant. Central governments resist the building of local autonomy, seeing power-sharing as a zero-sum game. Cities in the Global South are often managed by opaque and complex combinations of multiple local government structures, national utilities, and regional bodies, all arguably kept in place to divide and rule, rather than democratise, cities.

Where there has been effective decentralisation, faith in local government’s provision of basic services through democratic governance is being eroded. In South Africa, which Ran Hirshl (2020) regards as the most effective attempt at constitutionalising cities, the local state has become merely a further manifestation of the failing state and the patrimonial state. Over a quarter of the 257 municipalities (including some metropolitan cities) are officially dysfunctional – they cannot deliver services; more than half of municipalities are bankrupt or on the brink of dysfunctionality. Democratic accountability is limited.

A contradictory situation emerges: in the North there is demand for more constitutionalised powers and, in the South, where the possibility exists, it is used ineffectively. Overall, cities seem to over-promise on what they can and do deliver.

Towns are changing or undermining belief in decentralisation

In the Global North, local governments rely more on their indispensability and capability than on constitutional provisions to maintain their autonomy. Like cities, small towns are tasked with responding to challenges that hitherto were ‘national’. In addition, they see the corollary of urbanisation: often their populations shrink and/ or age. The exodus of young work-seekers and revenues to fund public services places strain on small towns.

In the Global South, decentralisation is often pursued with enthusiasm, pushed by international development actors and buoyed by domestic pressures for local democracy. However, the empowerment of local governments often does not approximate the euphoria of hard-won constitutional and/or statutory provisions. What really explains central governments’ reluctance to cede authority, and what does it mean for the conventional belief in decentralisation? While political distrust and conflict often lie at the root of the reluctance, the risks of failure and its devastating consequences for human development are real and have been experienced in places. The grotesque failure of many of South Africa’s smaller towns to utilise their autonomy for the benefit of development is a case in point.

The question thus arises: Is it truly possible to transfer substantial responsibility for public services in a context of severely constrained state capability, and if not, how should that inform our belief in decentralisation?

Research question

Why are cities failing in their main tasks of creating sustainable, liveable environments that provide a home for their residents? Is the accepted orthodoxy of local government, the set of assumptions on which its functioning is premised, no longer fit for purpose? Is there a need for a recalibration of the basic premises?

The basic orthodoxies underpinning decentralisation theory

The values and objectives of decentralisation as a policy initiative can be gleaned from national and international policy documents, including those of the World Bank. They may be summarised in the following statements:

• Democratic governance lies at the heart of decentralisation, both as an internal operating system as well as a national objective. The African Charter on Decentralisation (2014) goes so far as to proclaim that local governments are ‘key cornerstones of any democratic governance system’ (preamble). Central is democratic accountability; as government closest to the people, local authorities can readily be held accountable by citizens.

• From this democratic base, local services match local preferences for the provision of basic services.

• Being closer to the people, greater efficiency in service delivery is achieved, which may even result in innovative solutions to local problems.

• Both democracy and efficiency are enhanced through a large degree of self-sufficiency in financial resources.

• Decentralisation promotes political tolerance: it often disrupts single-party dominance, and at the same time requires intergovernmental collaboration across party lines.

• Central supervision must provide a uniform framework which is monitored and enforced.

• In highly divided societies, local authorities can play a peace-making role through the accommodation of different ethnic, cultural or regional groups.

The belief in local government as the preferred way of governing cities and towns, as well as an antidote to the failures of centralised rule, is still much influenced by romantic notions about the ability of a local community to self-govern. Mahatma Gandhi believed that basic village units in India, the panchayats, were ‘little republics’; these democratic institutions were self-contained and self-reliant, and accorded a minimum standard of living to all residents. Everyone was taken care of. These village units would also form the basis of any system of democratic rule. In the decolonisation debates on governance in Africa, the value of traditional village governance has been brought to the fore; below the hereditary

chief, the village community sat as equals and resolved decisions according to the motto: sit under a tree, and talk until you agree. The appeal of ‘the little republics’ notion rests on a number of values and assumptions:

• Local communities are inherently democratic, with a high level of accountability.

• Through its innate wisdom, the community knows what is best for that community.

• The community will provide for the needs of all its members.

• Self-reliance is a goal and practice.

• These are intimate communities where village government and the villagers operate in a symbiotic relationship. The village provides comfort and protection, a sense of belonging; the village is home.

The rhetoric of the modern city echoes the village concept of governance, and the claim to ‘the right to the city’ wants to make that rhetoric real. First articulated by Henri Lefebvre (1968), the right to the city focuses on the inclusiveness of the city for all its inhabitants. Coming from a leftist social justice paradigm, social movements have claimed collective rights to ‘habitation’, ‘appropriation’ and ‘participation’ in the face of poverty, inequality and marginalisation. As the World Charter on the Right to the City (2005) proclaims, the right entails

the equitable usufruct of cities within the principles of sustainability, democracy, equity and social justice. It is the collective right of the inhabitants of cities, in particular of the vulnerable and marginalised groups, that confers upon them legitimacy of action and/ organisation, based on their uses and customs, with the objective to achieve full exercise of the right to free self-determination and an adequate standard of living.

It is hard not to agree with these moral foundations of decentralisation. Who would not want to live in a democratic, efficient and caring city that provides for the basic needs of the residents in an inclusive manner? In the era of glocalisation, there is a demand for the ‘village’ to provide the sense of home, a place of belonging. What is at stake, then? If the vision is as clear as it is distant, is it a question of the principles and plans to reach this picture? Is it a question of actualising the village concept?

In search of principles and plans?

Against the backdrop of the failure of decentralisation to live up to its promise in the Global South, the question arises of whether the doomsayers are right: Is decentralisation too risky when state capability is weak? Should it be avoided when the ability to govern and administer is in its infancy? Is the village concept a hopeless ideal, or does it require an adaptation of concepts and instruments? When cities appear emasculated and overwhelmed, and smaller towns crippled by maladministration and public distrust, should public power be aggregated up instead of decentralised down?

With regard to cities in particular, the debate is equally complex. When ‘blue-sky thinking’ becomes as daunting as the sky itself, it may be more manageable to go local. By reimagining the local, the global may also be revealed. Let’s thus start with our city, Cape Town.

Between Mount Fleur and Table Mountain, the blue sky bounds together a city of extreme challenges. The population of 4.8 million in 2022 increases each year by 100,000 newcomers searching for work and services. The City houses two-thirds of the Western Cape’s population of 7.1 million, the third most populous province in South Africa. Deep cleavages exist along class and race lines. One in five persons is unemployed, and the City has the highest levels of inequality in the world, which correlates with race.

Political divisions also run along race lines. With a demographic split of 42.4 per cent coloured, 38.6 per cent African and 15.7 per cent white, coloured and white voters have secured a white-led Democratic Alliance in office since 2006, leaving African supporters of the ANC in the minority and on the margins. Apartheid’s spatial segregation still predominates. In the huge swathes of slums (informal settlements), informality – meaning functioning and governance outside of the formal law – holds sway. It is a highly fragile city, and conflict lies close to the surface. Apart from race dynamics, this city is not atypical of the other cities in the Global South. How can one conceive of a way forward?

• The City as villages

Given the enormity of the city, the impossibility of providing proximity of government, and the absence of the ‘home’ element, should it not be split up into numerous ‘villages’ to achieve these

lesser goals? Is it possible to turn the City into numerous ‘villages’ with the attendant benefits of their being ‘little republics’?

The answer must be no. Given the City’s highly divided society and the patterns of apartheid settlement, ‘village-fication’ would only deepen social and economic cleavages, reducing the local government’s ability to provide basic services across the board. The need for largescale planning and infrastructure-build for the effective provision of basic services place city governance beyond the reach of the villages’ individual capacities.

• The City as ‘villages of interests’

As the City’s governance, hampered by political divisions, shrinks under the increased demand for services and reduced resources, ‘villages of interests’ organically rise to the surface in various shapes and forms. In the affluent areas, residents have had self-financed neighbourhood policing for years. They now create fenced-in parks in open spaces to keep the homeless at bay. In the metropolitan City of Johannesburg, for example, two insurance companies partnered with the City to fix potholes; they created an app for road users, and repair potholes. It made business sense to invest in filling potholes rather than paying out car damage claims.

Self-help groups may also replace the City at the latter’s expense. Two examples come from rural municipalities. In the face of dysfunctional municipality, a resident association obtained court-approved authority for it to fix the municipality’s sewage plant at municipal expense to prevent further spillage of raw sewage. In another municipality, a resident association asked the court (this time unsuccessfully) to allocate in the municipal budget a sum of money to build a long-promised sewage plant. The argument was that the democratically elected council had ‘forfeited’ any constitutional autonomy to allocate resources, and that that task could be performed by a court. In informal settlements in the City, newcomers create selfhelp organisations that provide basic services for such communities through, for example, illegal connections to the City’s water and electricity supply lines.

Interest groups are not necessarily geographically located but may exist virtually across the city landscape. It is a City of competing authorities – formal and informal, benevolent and selfish –which undercut formal democratic structures.

As yet, this may be a descriptive vision of what is becoming. But can and should it also be a prescriptive vision as the way forward – loose and squabbling virtual villages within a broad but distant local government? Or is this merely a recipe for further fragility?

• The dialogical City

Although none of the different ‘village’ models in and of themselves provide an attainable vision of local governance, none of them can be ignored. City government remains key, ‘homemaking’ by communities themselves inevitable, and villages of interests based on self-sufficiency and self-help will expand. The City may drown in the cacophony of dissonant voices and disharmonious actions.

What has to emerge is the dialogical City: a City in dialogue with itself – between residents and between residents and city government; a City in dialogue with the provincial and national governments on the key social and economic structural challenges; and a City in dialogue with the international community over global issues such as climate change.

The notion of dialogue is already part of our constitutional jurisprudence on the implementation of socio-economic rights –the duty of ‘meaningful engagement’ between

parties. In the principal political dialogue, local democracy should be conceived of no longer as majoritarian winner-takes-all politics but as inclusive decision-making. The dialogue should also go further than political parties; key economic stakeholders will have to converse. The City will have to gather as a village in the shade of Table Mountain and talk until it agrees.

• The constitutional City

How does one arrive at the dialogical city, a city that can talk, agree and execute agreements? While political will and leadership are, of course, essential, can constitutional space facilitate such an endeavour? As noted above, calls for the constitutionalisation of the city argue that it does. The South African Constitution provides the gold standard of local government recognition, and the legal and policy frameworks for implementation are, in principle, conducive.

However, implementation of the vision of decentralisation is difficult, and missing elements include differentiation between local governments (cities and the rest); flexibility of power allocations; and sufficient taxing powers for self-reliance. Fundamentally, implementation of the vision of decentralisation is impeded by deep divisions in society, divisions manufactured by centuries of colonisation and apartheid and stubbornly keeping politics in a chokehold.

COMMENT: Tinashe Chigwata

Nico and Jaap’s lead-in paper succinctly captures the promise and reality of decentralisation, particularly in sub-Saharan Africa. While decentralisation holds great promise on many fronts, in practice there are a few ‘good stories’ to tell. In many African countries, local governments are failing to do the basics of serving their communities. They are inefficient, corrupt, unresponsive, and unaccountable. As a result, many people are now sceptical of decentralisation and its ability to conquer challenges associated with centralised governance.

According to the authors, ‘[t]he belief in local government as the preferred way of governing cities and towns, as well as an antidote to the failures of centralised rule, is still much influenced

by romantic notions about the ability of a local community to self-govern’. While this notion is logical, its relevance in Africa is questionable. Local communities often lack the right and/or ability to self-govern. The non-constitutional entrenchment of local government in most independence constitutions in the region was often cited as one of the major reasons for this. However, the entrenchment of local government in most modern African constitutions – those adopted after 1990 – has not resulted in the realisation of local selfgovernment either.

Why are local communities not able to selfgovern? A number of factors can be identified in practice and literature, and the authors reflected on some of them.

First, local government is often positioned, or used deliberately or otherwise, as a tool for local administration. In Zambia, for instance, local government was for a long time a mere tool for local administration.

Secondly, the line between local and national politics is fluid. Local politics is increasingly becoming national. In South Africa, for example, the constant breaking down of coalition governments in many cities is partially attributable to ‘national forces’. Local government is being used as a pawn in a bigger political battle among political parties. This brings into question the whole concept of local accountability at the centre of decentralisation.

Thirdly, local government is also largely a reflection of broader society. When other levels of government are not performing well, or when the economy and the politics are not right, local government will most likely underperform as well. This is evident across the region.

Fourthly, local governments are increasingly burdened with issues which are largely of a

COMMENT: Zemelak Ayele

Nico and Jaap raise several issues and many hard questions about the state of decentralisation in Africa. Their paper captures the global trend towards urbanisation in which cities and towns are emerging as important political and economic players, including in Africa. However, the paper is permeated with frustration at the current state of affairs of local government in Africa and, in particular, South Africa. Everywhere on the continent local government is failing to live up to its democratic and developmental ideals, a situation which is eroding faith in decentralisation and local government. The democratic and developmental ideals that underpinned decentralisation programmes in almost all African countries are becoming increasingly elusive, so much so that many now ask whether countries should pause to consider whether it is a good idea to implement decentralisation programmes before the conditions that make decentralisation a success are realised. Yet, what are the conditions that make decentralisation work?

national nature, such as fighting poverty, reducing inequalities and creating jobs. Why is this the case? Because national governments are failing?

Lastly, local governments often compete with national agencies at the local level for resources, power and authority. The case of South Africa’s utility, Eskom, continuing to sell electricity directly to consumers when electricity reticulation is constitutionally reserved for municipalities is a case in point. In other countries, there are national government agencies that operate in parallel with local governments. Hence, the ‘local’ in local government is increasingly becoming ‘national’.

In conclusion, there is no real commitment to decentralisation beyond the rhetoric. This raises the question: What would it take for communities to effectively and democratically govern themselves at the local level? This is a difficult question to which I do not have answers. However, I agree with the sentiment that centralisation is not a better alternative.

Importantly, countries in the Global South, including almost all African states, have experimented with centralised systems in the name of development and building nations. The results of centralised systems, without exception, have been disastrous, leading to imperial presidencies, ethnic-based favouritism or exclusion, corruption, and even war. Frustration with decentralised governance is indeed understandable, but clearly centralisation is not a better alternative. But, as suggested in the lead-in paper, there is a need to re-think the assumptions that underpin decentralisation and, therefore, the design of decentralised governance. The assumptions are not, in any case, based on the realities of countries in the Global South.

The lead-in paper raises the issue of elevating the constitutional status of local government and cities in particular. The elevation of the constitutional status of cities, or local government, creates its own unique challenges in federations. Yet I believe the constitutional recognition of local government has more than symbolic relevance and impacts the

latter’s democratic pedigree. Practice shows that the absence of adequate constitutional recognition of local government negatively affects the political significance and the democratic pedigree of local government.

A case in point is Ethiopia. It has been over 10 years now since the last local government election was held in Ethiopia. This has not resulted in any political controversy, whereas the postponement by one year of the sixth national election led to a constitutional crisis, even, as some claim, a civil war. I maintain this is at least partly because local government has no recognition in Ethiopia’s national constitution, which reduced the political and democratic significance of local government.

COMMENT:

Yet what does adequate constitutional recognition of local government look like? Does the mere mention of local government in a constitution suffice or, as is the case in South Africa, should a national constitution deal in detail with its structure, power, and resources? What are the pros and cons of doing so? Indeed, there is understandable frustration that local government in South Africa is in a dire situation even though the country’s constitution provides ‘the gold standard of local government recognition’. Yet one has to consider too what the situation would have been in South Africa had it not been for the constitutional protection that local government enjoys. Certainly, local government would not have fared any better.

Thabile Chonco-Spambo

As an opening remark, I take great issue with Elazar’s definition of decentralisation, particularly the part about the transfer of powers to local government being ‘without constitutional protection’ and thus placing decentralisation squarely at the will of the central government. Such a definition places the central government as the decision-maker/driver of a key process of the democratic project, taking a top-down led approach to decentralisation. A definition that moves away from this is much needed and helpful, as cases such as South Africa suggest that there is a space for bottom-up led decentralisation that should be explored (with limits, of course – i.e. section 156(4) of the Constitution).

De Visser and Steytler’s contribution exhibits a number of contradictions, not in the writing or by the authors’ doing, but about the reality of local government, its’s position and how it is envisioned globally. On one side of the scale is a local government that’s posited as autonomous, growing, capable yet stifled by central government (almost suggesting that this prevents local government’s further growth). While on the other side of the scale the very same local government is struggling to attend to social issues/needs stemming from urbanisation, struggling financially, and stifled by the ever-growing demands of the citizenry). A tale of two local governments one

would say (vision of/for local government vs reality of local government).

First comment, the point about cities not being reflections of communities with a common identity is an interesting one, considering the proposition of ‘cities as villages’ that comes after that. Identity viewed in its strict sense – there will never be a common identity in cities as all those who are in the cities have roots elsewhere (that they tie with identity). But where identity is defined more loosely, it could include a common identity of wanting a better life. So, diverse economic actors and consumers with somewhat common needs/ desires from the city…making this their ‘common identity’.

Second comment, I agree with the points highlighting the contradictions between national rhetoric on decentralisation and the practice of decentralisation. Many national government policies in South Africa ‘support’ assignment/ differentiated powers for municipalities but in practice it’s not materialising. This ties in with the point about the disconnect between the empowerment of local governments and the euphoria of the constitutional provisions. The lack of euphoria comes as a result of what ceding power actually means when power has to shift from national (ANC) to municipal (DA run). But

also, there’s reluctancy even where the shift would be from national (ANC) to municipal (ANC run). So, what does this mean or tell us?

Third comment, the democratic benefits of decentralisation fizzle out when those who hold power start disregarding democracy. Belief in decentralisation for the betterment of citizens’ lives is not of paramount importance to those who hold the decision-making powers re: decentralisation. Also, the political tolerance and collaboration that’s expected to happen as a result of decentralisation doesn’t always materialise as political parties want to achieve party objectives instead of prioritising the electorate’s needs.

Fourth comment, the question of actualising the

village concept requires principles and plans, so should these be two separate questions?

Weak state capability vs introduction of decentralisation: Where state capability is weak and decentralisation is avoided/not opted for, then it leads to centralisation. There’s no guarantee that state stability will lead to decentralisation being embraced, so best to adopt it even while the state’s capability is weak and introduce decentralisation in a measured way.

The City as a village/as villages: I agree with the points made here. This works where all people involved work for the betterment of the community. Little self-interest/vested interest… requires localism to work, which is absent in big

cities probably because many who live there are not necessarily from there. A sense of ‘I give to the city because the city gives to me’ is required. Inclusiveness in the city proves difficult where people aren’t on the same level i.e. Sandton and Alexandra. One of the things that made villages work was that everyone was (almost) on the same level.

The City as ‘villages of interests’: I find this undesirable as it perpetuates inequality and social division. But it’s happening nonetheless. Question to ask is: is there a way of getting these villages of interests to benefit all in the city? If this can be achieved (and they can work together), then their rise would be welcomed and partnerships with the

city might be possible.

In closing, the problem appears to lie with the people who are meant to make decentralisation work (politicians, administration, citizens themselves, business community). The constitutional city is a possibility in South Africa –as differentiation and flexible power allocation are provided for in the constitutional, legal, and policy framework governing local government. However, as noted in the contribution, political interference and reluctance from the centre hinders this. The dialogical city offers a space for those mentioned above to come together and speak but beyond speaking, they need to be accountable for their (in)actions to make decentralisation work.

CHAPTER 10: Fireside Stories

Given the time constraints at Mont Fleur and a measure of reticence, the majority of stories were not told by the side of the blazing fire. In order to encourage everyone to commit their stories to paper, a limit of 500 words was set – not to stunt a story but to lighten the burden on participants. Nearly everyone provided a little peek into how their life stories intersected with the study and practice of constitutionalism, federalism or decentralisation. Some of the stories had their own momentum; participants seized the (rare) opportunity to explore their own backgrounds and professional lives, finding a rich vein of factors that shaped their connection to constitutionalism.

Assefa Fiseha

My adventure in law began in 1990 when I gained the second-best result in the high-school-leaving national exam. My first choice was to go to medical school, and I had met all the requirements, but found myself placed in the social sciences at Addis Ababa University (with no explanation to date). Well, this was the end of the military era, and there was little I could do to challenge the authorities. After all, only handful of us made it to the university, as most parts of the country were under the then rebels, with many young and bright colleagues having no access to school.

I did one year of study in the social sciences, which I found interesting, and then went to law school. Law in the books is fascinating, and I did very well in law school. I wanted to join the judiciary, and in August 1996 I applied and was hired as an assistant judge in the then Addis Ababa Supreme Court. The next six months were hell: the law in action was frustrating and the courtroom atmosphere, unfriendly.

In between I saw a vacancy posted for higher education and escaped from the courts. I ended up where I am now. I have been writing and researching on areas of constitutional law and federalism. This is a delicate field in Ethiopia: only a few understand the fine line between

pursue without fear. (Editor’s note: During the Tigrayan conflict in 2020–22, Assefa was detained for two months without charge.)

Eva Maria Belser

I grew up in Heidiland, in a mountain village called Schwarzenberg, a small place sheltered by hills and with a view of the Pilatus Mountain range, the first foothills of the Swiss Alps. My school friends were daughters and sons of mostly poor mountain farmers who had a few cows in their stables and farmed the steep mountain slopes. The Belser family were outsiders. Both my parents were city dwellers who reluctantly had moved to the mountains because it was recommended for asthmatics like my father, my siblings and me. As a child, I felt at home in the small village with its school, where two classes were housed in one classroom, the church dedicated to St Wendelin, the patron saint of shepherds, the bakery that sold the children yesterday’s bread, and the dairy where the farmers brought their milk in the morning. My parents felt exiled; for the villagers, we were strange sojourners. It sure was not easy to know where one belonged.

I don’t remember how or why I got interested in law or in diversity. But my early memories are full of politics. When I was little, my father was in local politics and usually returned from meetings grumbling. The municipality had once again decided on an unnecessary improvement to the road, arguing that it would only have to bear half of the costs itself, with the canton contributing the other half. Can’t they understand that the canton of Lucerne’s money is also our tax money! And then they regret every cent when it comes to renovating the old school building. Yet it is one of the oldest and most beautiful buildings in the village! But oh well, my father went on, they probably all have bad memories of what they experienced behind these walls and would prefer to tear them down. I could not understand. I was looking forward to school so much!

When I finally got to go, my mother had just been elected president of the school commission. The commission was responsible for recruiting the teachers, and my mother visited classes unannounced to check on them. Before each committee meeting with people presumably wanting to tear down the school, she was so nervous she couldn’t sleep. My father mockingly said he would invest in the shares of the company that produced Zellers heart and nerve drops. She would take them before going to bed when the sessions were due.

The vice-president, our neighbour Seeberger, who always chased us off his fields with a pitchfork when we played there, wanted to choose the least qualified teacher for my class. He said he was the best fit for the village. The argument continued during church choir rehearsals, and my mum now needed Zellers drops on the eve of rehearsals too. She was successful with her election proposal, but the teacher of her choice, an art-loving young man from the city, was not. When he gave a fellow pupil detention, his older brother came into the classroom and beat him up. When we met him again years later, he was selling vegetables at a market stand.

There was national politics, too. About once per season, my parents would stop at the old school building after Sunday service to cast their votes. I remember waiting outside with Maria, whom I admired because she knew how to fleece sheep. She claimed she would never vote when she was grown up. They have it their way in Bern anyhow, she said. I told my father, and he said Maria was wrong. It was true that the people had voted against summer saving time in 1978 and the Federal Council had nevertheless introduced it three years later. But Maria had only considered

the effects on the cows, he said, and the Federal Council also had to think about the trains running through the country, all coming and going to places which had introduced saving time. Politics sure was confusing. Who got it right? The pitchfork neighbour or the nerve-drops mother? Maria and her cows, or the Federal Council and its trains?

There was not much diversity in Schwarzenberg, besides some drunkards and a person in a psychiatric clinic for which the villagers grudgingly paid fees. Can’t we treat this more discreetly? my father urged. It must be embarrassing for the family to have everyone see how much their disabled son and brother costs the community when the local budget is approved.

There was also a Protestant couple, Mr and Ms. Scheuing, whom the village priest did not greet when he met them in the street. I recollect mentioning to my mother that I was happy not to be a Protestant as it was so much better to be Catholic. I also remember that she turned away from the wooden cupboard she was busy painting to look at me. I realised immediately that I must have hit a nerve, as she was not easily disturbed when she was painting.

You know, she said, you cannot really say that one is better than the other. How would you know? How would anybody know? Besides, I grew up as a Protestant and only converted when I got married to your father. It was important to him and did not matter much to me. The process of conversion was horrific, though. I was baptised again because the Catholic priest believed that his Protestant colleague might not have gotten it right. It was humiliating. I am a Catholic on paper and in my heart, in my heart, I don’t really know what I am. You see? What really matters is doing the right thing. And not greeting a Protestant is not the right thing. Besides, don’t forget, your grandma is a Protestant, and so is your uncle and his family.

Why then, I asked startled, did the priest greet grandma when she attended my first communion? Because she has always been a Protestant – Mr Scheuing used to be a Catholic and he converted to Protestantism when he married Ms. Scheuing, who was a Protestant. That is what upset the priest. But you converted as well, why does he still greet you? Because I converted the other way around; he welcomed me to his flock like a lost sheep. He sure should look after all who are here better. Religion was confusing, too.

It was only later that I learnt that, in my family, not just two confessions but two ideological

extremes had come together. My dad’s father, a doctor and the father of 12 children, was a member of the Equestrian Order of the Holy Sepulchre of Jerusalem, a Catholic organisation of knighthood under the protection of the Holy See. According to my mother, grandpa was buried in a white cloak with the cross of Jerusalem in red, as worn by the crusaders. My mother’s father, in contrast – an economist who maneuvered the textile factory of his father into bankruptcy – was a poet and a Freemason. The Freemasons, at least in my country, were famous for being openminded humanists and for hating the Catholics. I knew neither of my grandfathers, but I must have felt the extremes the two had passed on to the offspring of their children. My habilitation thesis, entitled The White Man’s Burden, was written to blame men like Grandpa Crusader for the burden they make other people carry, and to reckon with men like Grandpa Freemason who write poems while others work for them.

Less is known about my grandmothers and their mothers. It always intrigued me. When my father worked on the family tree, a great hobby in the Belser family, I persuaded him to include the women. After all, I descended as much from my grandmothers as from their husbands. I remember a family gathering where all amateur genealogists brought their family trees. All the other trees were elongated and clear, one son and heir, passing the Belser family coat of arms, a partridge and a horn, to the next son and heir. Our family tree ended up being broad and chaotic, but it showed that many families, who had left neither name nor horn, had contributed to who we were. When you think about it, families are complicated, too.

While we are still sitting by the fire, let me tell you how I got interested in justice. As my two elder sisters often ganged up against me, the youngest, I made great efforts to enter an alliance with my brother, who was the eldest of the four of us. It was no equal relationship, and that taught me a lesson. I remember one evening when he was playing with an electric train, sitting at the control panel, operating two trains simultaneously, and I

Tinashe Chigwata

Growing up, I had more contact with officials of local governments than national and provincial authorities. Like any other ordinary person, my life was dependent on key public services provided by these lower governments, from water supply to health, sanitation and refuse removal services. However, I never thought I would make a career in the local government space, particularly as a researcher. In 2009, I attended a career-defining

was assisting him. He made the trains go much too fast, so that they constantly derailed on the bends. My role was to carefully lift the derailed locomotives and the wagons back onto the tracks. It made me so happy and proud that after a while I made an offer. Let us play together like this: you are in charge, and I do what you say, agreed? That obviously had been how we had been playing all evening. You do whatever I say? my brother asked. I nodded forcefully. Go to bed then, he said, and that was the end of the game.

Alliances and treaties were complicated matters too. Is there any fairness when weaker parties must deal with stronger ones? Later in life I wrote a PhD thesis to argue that qui dit contrat, dit juste was nonsense, only to prove that my brother was wrong and our agreement not binding. When there is no equality between the parties involved, no just outcome can be expected. Help must come and set things right! Parents! Authorities! Over seven hundred pages I made the point that in the presence of unequal bargaining power, courts must review contracts and invalidate unfair deals. We do not want the rule of the fittest, do we?

It is only when telling stories of my childhood that I realise how lucky I am to deal with issues that have always mattered to me. What makes people feel at home and what allows them to live together respectfully despite all their differences? How can we prevent shop owners from getting rid of their old bread by selling it to kids who cannot complain? Who should decide about and pay for roads, and schools, and health asylums? How can we get women into the picture? How can we prevent people from being humiliated for who they are? How can we reconcile the interests of cows and trains? How can equality thrive when it does not exist? How do we make sure that the best ideas are heard? How can we guarantee fair outcomes when unequal actors make deals? And how can we make sure that someone comes to the rescue of those who have just been pulled over a barrel?

event in Harare in Zimbabwe. The then Community Law Centre (now the Dullah Omar Institute) of the University of the Western Cape organised a conference on local government reform in Zimbabwe. It brought together academics, practitioners and other stakeholders, and was held at a crucial juncture when Zimbabwe was undergoing a constitutional review, with local government and decentralisation forming a key part of the reform agenda.

Scholarly presentations at the conference examined various aspects of local government in Zimbabwe through different lenses – legal, institutional, financial, and so on – while practitioners provided insights on how the local government system functions in practice. The deliberations were relevant, refreshing and insightful. It was then that I first realised how municipalities, local authorities, or councils play a crucial but unappreciated role in our lives. They are often the level of government whose role has an immediate impact on our well-being. Even the business community relies significantly on their services. This is why when local government fails, socio-economic development also suffers.

Thabile Chonco-Spambo

What drew me, and continues to draw me, to the study of constitutional law? I grew up in a very strict household with a tough-as-nails father. He was a police officer and ran our home in such an orderly manner that I was often irritated by the fact that he didn’t know how to draw the line between work and home. But I also realised, and accepted, from a young age that to have order in society, you need the law. I didn’t know at the time that this ‘order’ was premised on the Constitution, and nor did I know that much of what was happening around me was influenced by it. And that’s how I became interested in studying law (and initially wanting to be a prosecutor).

I was introduced to constitutional law in my first year, but was not intrigued by the lessons on structures of government. It was only in my third year, when I studied the South African Bill of Rights module, that I began to understand and connect back to what I was taught in Introduction to Constitutional Law. It was here that my interest in constitutional law started. I began to draw linkages to my lived experiences – why many of us in my neighbourhood (Protea Glen, Soweto) travelled to Lenasia and as far as central Johannesburg for schooling; why my extended family in KwaZulu-

With this realisation also came many burning questions: If local government is this important, why is it treated like a step-child? Why are councils often underfunded, and what is an enabling environment for effective local governance? Postgraduate studies in local government easily became hugely appealing to me at the time.

With its reputation of offering high-level postgraduate studies in local government in South Africa and the region, the Community Law Centre was an obvious choice. In 2010, I embarked on postgraduate studies at the Centre. After completing my master’s programme in 2011, I pursued PhD studies in public law, with a focus on local government.

Since then, I have never looked back. I have been exposed to both the theoretical and practicalities of local government and related concepts such as federalism, good governance, and constitutionalism, all of which occupy a central part of my research agenda. My enthusiasm for research in this area remains intact. What keeps me going? I have a strong desire to contribute to better governance outcomes through effective multilevel governance systems, particularly in the African region.

Natal didn’t have flushing toilets and running water in their houses; why we had to travel such long distances to buy groceries; why for as long as I’d lived in Soweto I had never bumped into people of other races, yet at university we were a meltingpot of races, ethnicities, and cultures. How I and most of the people around me lived and what

was written in the Constitution did not align, and I wanted to understand why.

I view constitutional law as an area of law that keeps one constantly questioning. The Constitution envisages a certain type of society where we are all equal. I see this as the final destination, with its aspirations and ideals. Whilst not providing a clear roadmap on how to get to the final destination, the Constitution nudges us on how to plan for the trip and how to put this roadmap together. Scholarship in constitutional law keeps me interested in the balance between aspirations and actual possession

Jaap de Visser

My journey into constitutionalism in Africa started in 1997 when I arrived on 1 February at the University of the Western Cape to start what was supposed to be a six-month student exchange from Utrecht University. I had landed at what was then called DF Malan Airport, named after the first National Party prime minister. I was a wide-eyed student from the Netherlands, looking forward to visiting Cape Town’s beaches and revelling in its parties.

I hadn’t fully realised two things.

First, three days after I arrived, the 1996 Constitution came into operation. Not only did it set South Africa firmly on the path of constitutionalism, but it also set the agenda for momentous change in the following years, of which I was going to be a part. I just didn’t know it yet.

– it’s good and well to aspire to equal access to and realisation of the socio-economic rights set out in the Constitution, but at present we do not all possess and enjoy these rights.

So, whilst I believe in the final destination, I question the process to get there. Should I judge the Constitution, or should I judge the institutions and the people in these institutions that have been put in place to give effect to the aspirations? It is questions like these that keep me interested in working in the area of constitutional law.

Secondly, I joined a black university. It was tucked away in the industrial areas of Cape Town, far away from the beaches, but it was central to South Africa’s quest for constitutionalism. The next six months were a rollercoaster. I was one of perhaps five or 10 white students on campus. Naturally, I stood out like a sore thumb. But UWC folded me in a bewildering yet warm embrace. I made friends instantly, even though I shall never forget one jokingly accusing me of coming ‘back to the scene of the crime’.

I joined a student organisation called Street Law, and, within days, met the person whom I later married. Street Law sent me to Pollsmoor Prison (where Mandela spent six of his 27 years of incarceration), to Robben Island (which was not yet open to the public), and to juvenile detention centres to conduct role-plays and workshops on

human rights and democracy. The necessity and power of constitutionalism, not only as a bulwark against an abusive state but as an instrument of transformation, was made real for me, instantly, and in ways that no academic lecture could.

After my exchange programme finished and I returned to the Netherlands, I consulted my constitutional law professor, Henk Kummeling, on whether I should return to South Africa for a master’s degree in constitutional law. He was so unequivocally supportive that I was worried he might take my place.

In 1997 and 1998, the Truth and Reconciliation Commission was in full swing and, while studying for my Masters, I set out to attend as many hearings as I could. Two hearings stood out: the hearing in Crossroads, Gugulethu, on the role of the witdoeke, the pro-government vigilantes who

unleashed unspeakable violence in the Cape Town townships in the 80s, and the amnesty hearings of the security branch officials who tortured and killed Steve Biko.

I sat in front of Donald Woods, the author of Cry Freedom, and witnessed Adv George Bizos cross-examine Gideon Nieuwoudt, one of Biko’s torturers. Seeing and hearing Mr Woods wince and moan at the details of the torture and murder of his friend left an indelible impression on me. Standing in the lift afterwards with a giggling Desmond Tutu who radiated positivity despite the harrowing testimony, made an equally strong impression.

Nico Steytler was the convenor of the Masters Programme. His masterstroke was to allow me to take an internship in the newly established National

Octávio Ferraz

Saving the Amazon through the law? If anyone needed confirmation of the classic socio-legal finding that ‘law in the books’ is very different from ‘law in action’, one should visit the Amazon forest. It spans nine countries, covers 6.7 million square kilometres, and hosts a population of 30 million people. Given its importance to these countries and the world as a massive reserve of biodiversity and a massive sink of greenhouse gases that cause climate change, there is no shortage of environmental laws in the books to protect it. Yet, year after year, large amounts of the forest are disappearing. Some scientists estimate that a fifth of the original forest is already gone, mostly to give way to cattle farming, grains (mostly soya and corn) and mining, but also to provide wood for buildings, furniture and paper.

Being Brazilian and a lawyer, I have constantly despaired about this situation and wondered what could be done to change it. For most of my career, my research focused on the right to health of urban dwellers who started resorting to the courts after the Brazilian Constitution of 1988 recognised that right in article 196. For the past two years, however, I decided to broaden my focus to what I call ‘planetary health’, which is arguably a precondition for human health, and on the role of law in protecting that fundamental good. Just as the right to health, a right to ‘an ecologically balanced environment’ was also recognised in the Constitution (article 225).

Council of Provinces. This exposed me to multilevel government. On my first day, I was addressed by two senior ANC politicians, Yunus Carrim MP and Mohammed Bhabha MP. They made sure that I understood how important this phase of South Africa’s democracy was going to be. They also made me believe that I actually had an important role to play, summarising and commenting on Bills – such as the Municipal Demarcation Bill and the Municipal Structures Bill – that would indeed change South Africa’s constitutional landscape forever. I wrote my master’s thesis on the first-ever provincial intervention into a failing municipality, followed by a doctoral thesis on local government in South Africa. Thus, I stepped into the world of multilevel government and constitutionalism.

As a self-defined socio-legal scholar, I was not content with reading all the literature and case law on the topic. I also wanted to go to the field, observe, and discuss with the communities who live in the Amazon what their experience of the laws that are supposed to protect them and their livelihoods have been. So I packed my sleeping hammock, mosquito net and a load of antibiotics and anti-allergic drugs and flew to Manaus, Amazon’s largest city and hub, to start my investigations.

I was lucky to know already an incredible journalist, Luis Patriani, who had deep knowledge of a part of the Amazon he had been visiting and reporting on for two decades, the Rio Negro (Black River), one of the still most preserved areas within the Amazon yet under significant pressure from loggers, fishers and, most recently, drug dealers. So there we went, myself, Luis, and a documentary maker we invited along (Patrick Granja). From

Manaus we drove three hours to the end of the road, a town called Novo Airao on the margins of the Black River. From there we travelled more than 1,000 kilometres by fishing boat during six days, sleeping on hammocks inside the boat, and meeting and talking to several riverine communities who have been living by the river for decades and whose families have occupied that territory for centuries.

The overwhelming sentiment we noted was that of abandonment by the state. No matter how often they notified the environmental agencies of illegal activities in their land (logging, fishing, drug dealing) nothing really ever happened, and the justification was always the same (lack of resources to police an area so remote from their offices). Not surprising, of course, and this is one of the biggest challenges for implementing laws across the world. The rule of law, a wonderful value, seems to accommodate itself much better (not perfectly, of course) to developed and accessible places.

But we also witnessed very interesting initiatives by the community to compensate for the abandonment of the state. By organising themselves under an association, they started

to monitor their territory themselves, even at some risk to their own lives. It has not solved the problems, but it did have a positive impact, as some of the wrongdoers are feeling less confident in continuing to plunder the natural resources of the area. The other hope is that technology, such as drones and satellite internet, will level the playing field a bit, allowing the community to produce and transmit evidence at a much greater speed.

I have now carried out three fieldwork trips to the Amazon, to different regions but similar law enforcement problems, and am planning to conduct more in the next couple of years and eventually write a book based on these wonderful and enriching case studies of how to diminish the gap between law in the books and law in action.

Charles M Fombad

They say life is what happens to you while you’re busy making other plans. Very true in my case. When I registered at university in Cameroon, my plan was to study economics, but after going to a few lectures, I had a change of heart and decided to go into law instead. Even so, when I graduated, I wasn’t sure what direction I wanted to take. A few weeks after graduating, I learnt that I’d been awarded a government scholarship to do a master’s degree, but in subjects that until then I’d never even heard of – maritime law, marine insurance, air and space law. So it was that I ended up with a doctorate in air and space law from University College London.

I returned to Cameroon in 1988 and was appointed to teach at the then University of Yaoundé. There I taught subjects such as law of tort and law of contract … none of which had anything to do with my specialisation. Life was to take yet another peculiar turn, though. I was eventually to become quite well known not in air and space law but something else: constitutional law.

My involvement with this field began when Cameroon adopted a new constitution in 1996. My francophone colleagues organised a conference and asked me to make two presentations on the judiciary. One of the papers I wrote was entitled, ‘Judicial power in Cameroon’s amended Constitution of 18 January 1996’, and appeared in 9 Lesotho Law Journal (1996) 1–11; the other was ‘The new Cameroonian Constitutional Council in a comparative perspective: Progress or retrogression?’ (42 Journal of African Law (1998) 172–186). However, my colleagues said the papers were too critical, and took exception to a prediction I made in the second paper that ‘the authors of the 1996 constitutional amendment have left Cameroon moving dangerously into an uncertain 21st century’ (p. 186). Looking back, my only surprise is that the crisis provoked by this constitution came to a head only 20 years later in 2016.

My deep involvement in constitutionalism in Africa came about in an equally accidental way when I joined the Law Department of the University of Botswana in 1997. In the year 2000, it was decided that the department should start a master’s programme. I was one of the three members of a committee tasked with designing the new programme. We did plenty of research, and comparative constitutional law was one of the four modules which I developed. Although I’d never taught the subject before, I was asked to teach the module on comparative constitutional

law. To give my students my best, I immediately embarked on a thorough investigation of the field, with my emphasis falling on African comparative constitutional law.

In the course of doing this, something truly surprised me. I noticed that although a number of books supposedly dealt with African comparative constitutional law, the only scholar who had actually researched, and actually written on, African comparative constitutional law – in the sense that his discussions covered the two main constitutional traditions on the continent – was the late Professor Ben Nwabueze. Inspired by him, I decided to focus my research on a cross-systemic comparison of African constitutional laws.

My journey from economics to air and space law is definitely going to end with comparative constitutional law. It would have ended differently had I not strongly resisted temptation by the University of Pretoria, which, on appointing me in 2010, tried to persuade me to start a master’s programme in air and space law. Luckily, they found someone else to do it, whilst I pursued my passion for comparative constitutional law and started, in collaboration with Nico Steytler, the Stellenbosch Annual Seminars on Constitutionalism in Africa (SASCA). It has been quite fulfilling that the SASCA programme between 2013 and 2023 culminated in an eight-volume series, Stellenbosch Handbooks in African Constitutional Law. This has firmly planted African comparative constitutional law as a distinct area of comparative constitutional scholarship.

Jeff King

My journey to constitutional law lacks drama. My parents were raised during the Golden Years of the welfare state in North America. My father grew up in a financially stable but loveless household in New York City. My mother moved over to Canada at the age of nine from a very poor working class town near Liverpool, England. They met in Ottawa, a place which my father was happy to go after he read it was ‘the most boring place in North America’. Both turned to left-wing politics in the 1970s and 80s, and that was the milieu I grew up in.

We attended Communist rallies, joined demonstrations, and I imbibed half-baked theories and doctrines, as well as historical narratives, often based on misty-eyed interpretations of Marxist doctrine or, in some cases, historical accounts published by Soviet-supported printing houses. The organisation of the party politics was internecine, and even obviously so to a kid. And at the grand meetings and assemblies, the iconography, specifically the huge posters of Marx, Engels, Lenin and, yes, Stalin, looked odd enough to me as a schoolboy. I knew enough even then that idol worship was creepy, and that Stalin was associated with some heinous crimes.

I was left-wing and radical by pedigree, but liberal egalitarian by temperament. I wanted to read Mill and Kant (and Marx) instead of about the politics and mechanics of labour organising and the welfare state. And indeed, I wrote my first serious essay on democracy and individual rights in high school, drawing on Mill, Rousseau, Kant and de Tocqueville. It gave me a taste for philosophy.

I entered university to study that subject in 1992 – right around what Francis Fukuyama called ‘the end of history’. Communism had collapsed as a remotely credible governance project, and the consolidation of the liberal democratic order seemed to have arrived. My parents’ political activities in our youth looked something between pious and naïve in hindsight, and closer to the latter as time marches on. It was in my first year of undergraduate studies that I discovered the International Bill of Rights and in particular the UN Covenant on Economic, Social and Cultural Rights. At last, there was a document – set of documents – that affirmed my own values as co-equal –liberty, substantive equality, dignity. Human rights became my new religion, and law my chosen path to implement them.

Between 1996–2004, I lived in Korea, England, Ecuador, Montreal, New York City, Berlin, Oxford and London for considerable periods in each, and also spent several months in Colombo, Sri Lanka. I absorbed all these experiences, from romantic culture, grassroots development problems, to Wall Street corporate lawyering (long story), like a rapidly expanding sponge. I had also worked with or in the orbit of a significant number of NGOs, sometimes with profit, in several cases with disillusion. I was nevertheless well in the making as a missionary about my new religion. I took it to higher education.

During my doctoral studies in Oxford, I came into touch with scepticism about liberal constitutionalism and judicial review in particular. This was significantly to my profit, but much of that literature explained why the US experience with law and judicial review should give any egalitarian significant pause for thought. It made my arguments more nuanced, but did not induce me to abandon the idea of judicially protected constitutional social rights. I was inspired by the South African journey.

I commenced my teaching career in Oxford in 2007, moving to UCL in 2011. The UK courts had also been fairly conservative for many years, although during my period in the UK – commencing in 2004 – they were certainly trending in the direction most human rights lawyers thought they should. It seemed that things were more or less working properly in the UK, Canada, New Zealand, and the post-apartheid South Africa. They were happy

days. The election of President Barack Obama seemed to epitomise a newer, more grown-up politics, one in which one of the most intellectually impressive figures ever to hold the presidency just happened to be black. His pre-election ‘A more perfect union’ speech, in which he refused to disown the incendiary criticisms of US politics by his pastor Jeremiah Wright, was one of the most moving political moments I had witnessed. I hosted a discussion of it at Keble College Oxford, in 2008.

Yet I did wonder increasingly around this time whether Marx’s claims that liberal values and rights were in a sense epiphenomenal (as superstructure) on the functioning of the economic underpinnings of the redistributive state (as base). The idea that liberal normativism was a foolish, or perhaps unnecessary and possibly irrelevant, project in politics was beginning to bite. It was clear that the rhetoric of constitutional rights had gone the furthest in the US, and it was far from being the ideal state to live in. Judges played a scant role in Scandinavia, where the ideal state seemed most plausible.

Yet it was also around the time of the end of the Obama presidency that the backlash against liberal democratic values began to become a more mainstream position in politics. Polarisation had grown, and the election of Donald Trump went from nightmarish prospect to grim reality. Politics in the UK lurched unrecognisably to the right, and formerly fringe far right-wing parties became increasingly powerful across Europe, including in nations with a significant history of politically organised fascism.

It was at this time, when populism fuelled by social media had grown like wildfire, that I realised that the idea of liberal constitutionalism and rights was not just empty verbiage. The idea that the majoritarian political institutions should be institutionally unchecked when they purport to settle questions about the rights of individuals not only looked inapt, but that very argument was actively promoted by right-wing commentators and politicians. My sense was that the importance of a values-based order, one in which constitutional values and principles were given real weight and were referred to frequently in political discourse, was confirmed during this period. They became desperately salient once again.

So too did the idea of legality. When I was asked by my then Dean at UCL whether the Prime Minister could give notice to the EU of the UK’s intention to leave the EU following its 2016 referendum, it took me about 15 minutes to work out the view that it would be unlawful in public law. I blogged on it with two colleagues and the Supreme Court upheld that argument eight months later. What was great about this episode was to see how so many of us disagreed about the law on this issue but agreed on the underlying question of whether Brexit was a bad idea. Our legal disagreement was divorced from our political agreement. It was guided by the interpretive strategies of our craft. It was about law. The idea that law had its own special and professional logic was fortified. That was an important article of faith – or perhaps of science – in the idea of a norms-based constitution.

But, likewise, the idea that values that did not sound in law could nevertheless have clear and potent application to political disputes was also fortified in my experience as Legal Advisor to the House of Lords Select Committee on the Constitution, from 2019–2021. The advice I gave had little to do with law, in most cases, but a lot to do with whether particular bills met rule-oflaw concerns or whether provisions seeking to take delegated powers were too wide. The crossparty group of peers in that committee agreed on pretty much every report unanimously, and many were scathing of the UK Government. The political constitution – expressed in positive normative terms and standards, rather than as a case for judicial deference – also had bite.

My conception of constitutionalism now has been reaffirmed. It is a broader conception than the courts/rights paradigm I approached the subject with, back in 2004. But the relevance of values and concepts like the rule of law, democracy, rights, and openness, are affirmed, right alongside the importance of a robust and redistributive state. I fear for constitutionalism at the moment; but my belief in it as a normative enterprise and structure, and in human rights within it, is only fortified rather than exhausted by the dreadful political events of the last years.

Henk Kummeling

My personal fascination with constitutionalism

My personal fascination with constitutionalism began at high-school age. All kinds of questions kept me busy, such as why do I have to do military service? Who decided that for me? Why is there a census in the first place, and why do my parents get fines for not wanting to cooperate? How is it possible that the small municipality I live in, where everyone knows each other, including the mayor and the aldermen, is suddenly merged with other small municipalities (decided from above), with residents and administrators that we do not know and with whom there is even rivalry?

Gradually it became clear to me that if I really wanted to find answers to these types of questions, I had to go to university and study law.

That was a big step. No one in my entire family had ever gone to university. In my family, the guiding principle was always that you had to finish school as quickly as possible in order to earn money. Fortunately, my parents were very supportive of my desire to continue my studies. My choice of discipline or education was very helpful in this regard; after all, I could then become a lawyer or judge. Respectable professions, where you could also earn a lot of money! My parents and family were very surprised when, upon completing my studies, I announced that I would stay at the university to teach and work on a dissertation. That surprise turned into appreciation and even admiration when I was appointed full professor at the age of 33, and all family members were present when I gave my inaugural address. All of them could to some extent picture what a professor does and everyone could be proud of that!

support for the decisions the constitutional system generates, not only in terms of factual acceptance, but in terms of normative acceptability, so that they are also substantively good or at least acceptable decisions, and are partly inspired by confidence in the institutions that make these decisions?

In the meantime, the questions from my youth still preoccupied me, but I had learned to classify them according to the classic functions of constitutional law, namely constituting (setting up institutions), attributing (granting powers) and regulating (ensuring that the exercise of powers remains within limits). I eventually found this arrangement of functions restrictive. To the horror of my former supervisor, the eminent Dutch professor of constitutional law, Constantijn Kortmann, who thought I was drifting away from law to become a political scientist, I started to pay more and more attention to a fourth important function of constitutional law, at least in my view, the legitimising function. How do we ensure there is

In recent years, that question has taken on a new dimension for me: From whom do we actually want that legitimacy, that acceptance, that trust? From the citizens who turn out at elections – or should we care far more about those who do not vote, who are no longer seen by the government, who no longer have confidence in the government? That group seems to be growing. The key question, then, is for whom is the rule of law intended, what is the purpose of constitutionalism? If we do not find a satisfactory answer to this question, I fear that we may also consign the concept of the rule of law to the grave. And the great thing is that I can now work on this question in the Netherlands as chairman of a state committee on the rule of law.

So the questions from my youth still preoccupy me, but now in a better organised and more focused way. These are and remain fascinating questions that require new answers in every new era. And that fascination will probably never leave me, although I hope that in the last minute of my life I will not ask the question who was actually authorized to decide that my life would be finite...

Xavier Philippe

An evening meal on the beach in Colombo (SriAn evening meal on the beach in Colombo (SriLanka). Or, how to reconcile constitutional-making processes and private moments when tense negotiations happen to be in a deadlock?

Here comes to mind the story that happened in Sri Lanka in August 2017 when the president wanted to amend the constitution and I landed up with Nico Steytler in meetings where endless discussions were held about amending the bill of rights and reshaping the vertical division of powers. All these discussions were passionate and quite tiring for the participants. We ended the day trying to find a restaurant, and were recommended a place outside the city centre and situated on the beach. We took a taxi along the coast next to the seashore, where we saw a train so crowded that people were standing on the footboard. The train was faster than the taxi stuck in the traffic, but probably safer.

We arrived at a place that looked more like a hotel than a restaurant, but someone told us that the restaurant was down on the beach and we would have to remove our shoes. We went down and, to our surprise, saw that the tables really were on the beach. We took off our shoes and were seated by a waiter who said we would probably also have to roll up our trousers, especially near the end of the meal when the tide would be at its highest. We realised the sea would be lapping over our feet and that rolling up our trousers wouldn’t be enough to avoid getting wet.

It was fun, the seafood was delicious, and during the meal we discussed many topics – but one thing struck me. It was the thought that expertise in constitutional law can get you to faraway places you would never have been to otherwise on your own. The lesson that night was clear: while you are trying to share your (modest) professional

Johanne Poirier

My interest in constitutional law grew out of a deep desire to see institutional design and formal recognition of the status of the Québécois as a ‘distinct’ society which could make its own political decisions. This could be accomplished either through independence or through renewed and multinational federalism. For me, these options were always a means to an end: a fairer society.

skills, each new travelling experience leads you to stunning places and incredible moments! More than a ‘constitutional moment’, a moment where you discover how your own universe is restricted to what you know and realise that there is still so much more to discover. This restaurant on the beach will remain one of these moments. I do not remember if we had discussed extensively constitutional law issues (and most probably not!) but at the end of the journey, you always wonder who was the greatest beneficiary of this experience? My impression has always been that we gain more than we give. This is undoubtedly one of the untold advantages of going out on the spot – and taking the law out of the books.

We ended our evening back to the hotel with the feeling that this was an outstanding time…but with some difficulties to put our shoes back on due to the sand stuck on our feet and - let’s admit it! –some wet trousers…

I grew up in working-class Montreal in the early 1960s, just as the Québécois were freeing themselves from the Catholic theocracy. We were driven by the slogan ‘Maitres chez nous’ (‘masters in our own home’). Being nationalist then, I partook of stories of liberation, social justice and recognition. Francophones had been conquered by the ‘English’ (we never said British, for some reason: we thought the Scots were also victims of the English, when they were very active in the imperial adventure, of course). Francophones also provided cheap labour for an economy dominated by English-speakers (the local minority, but also those of the Canadian majority and the USA). The nationalist movement (some independentist, some not) used the collective narrative to create a social democracy that profoundly transformed Québec into a more egalitarian, feminist and secular society. This largely worked. By the 1990s, the Québécois were indeed managing the economy and had become not only a numerical majority, but a social and political one as well. While remaining, of course, a minority in Canada and in North America. ‘We’ were, to a large extent, ‘Maitres chez nous’.

And yet … because the Québécois (and other Canadian French-speakers) were conquered by the ‘English’ and had to fight for survival, our role in the colonisation of Indigenous peoples,

Patricia Popelier

I grew up in the luxury of a small but wealthy democratic country, divided, but not deeply. The political therefore did not affect my youth, making it rather unlikely for me to end up in scholarly engagement with constitutional, let alone institutional, issues. It was my dream to become a novelist or a book illustrator. I studied law just to please my father, and constitutional law is the only reason I built my career there. Constitutional law allowed me to work both conceptually and very concretely, with little immediate practical use and yet with social impact, based on legal analysis but with much room for interdisciplinary work.

So it is not a personal story that drives me in my work. I had no political interest in constitutional issues: I do not believe in ideologies because they are too coherent to capture the unstructured complexity of real life, and I am not a convinced flamingant or belgicist. I was always the odd person out, though: the youngest of five children, the youngest at school, without the financial backup that most of my college peers enjoyed, and

which continues to this day, was played down in our collective imagination. In other words, while we fought to become ‘Maitres chez nous’, we largely ignored that we were ‘Maitres chez l’Autre’ (‘masters in someone else’s home’) (Émilie Nicolas, « Maitres chez l’Autre » : La naïveté originelle dont se réclame le Québécois nourrit-elle le déni d’un colonialisme bien de chez nous? », (2020) 36 Revue Liberté 42-46).

This realisation has had a profound impact on my conception of my people’s place in our constitutional order. And of my role as a constitutionalist. How do we teach the law of a state (albeit a multinational federation) whose very legitimacy is profoundly challenged by continued colonisation? How do we tool young people to invent new ways of living together that are far more inclusive than anything that traditional federalism and multiculturalism has ever seen? In this context, I think that being part both of fragile minority (French-speakers in North America) and of a majority (in Québec) has at least made me more conscious of the very complex dynamics of constitutional identities and of the challenge this poses for constitutional design.

when I got my first appointment at a university, I was one of the few women in a predominantly male world. At the time, I was too inattentive to that situation to factor it into my work.

But it did allow me to observe as an outsider, and take different angles from traditional doctrine. Being a resident of a small country like Belgium also helps: insignificant in an academic world

dominated by the Anglo-Saxon perspective, but sufficiently challenging in its complexity to help me walk against traditional paths, and to also pay attention to other ‘outsiders’ – federal systems in Africa, for example, still too underexposed in federal scholarship.

In the end, it worked the other way around for me. I did not get into constitutional law out of outrage or a sense of injustice. It is, conversely, constitutional law that taught me to see injustice and to be indignant. When a colleague says he won’t hire a female candidate for a research position despite her stellar resumé, because he finds her

Theunis Roux

My interest in constitutionalism began in 1993–1997 at the University of Cambridge, where I had gone to do my PhD. Before leaving for Cambridge, I had been involved in the land restitution movement in South Africa, doing research for the ANC Land Claims Court Working Group. My initial intention had been to write a PhD in the area of land reform, but I quickly realised that I wasn’t particularly well equipped to do that. Also, the interim South African Constitution had just been negotiated, and the land question had been central to that.

I therefore switched my focus to the question of whether the final South African Constitution should include a property clause and, if so, in what form. It wasn’t a particularly clever choice of topic, because it was clear that the Constitutional Assembly would answer my question before I did! In the end, I managed to finesse the argument so that my PhD wasn’t entirely redundant. The thesis was that there should indeed be a property clause, but that it should depart from the classical liberal model and adopt instead what I called a ‘civil society’ approach.

‘too confident’. When public hate campaigns are conducted against women with a migration background who come into the spotlight. When people abuse their power. When they polarise an entire population. When governance becomes a power game based on self-interest in which all reason is lost.

Novel plots gave way to constitutional narratives, fiction to equally adventurous real-life stories, in my own country or far away. A novelist I have not become, but books I have written. There is no escape from faith.

On returning to South Africa in 1997, I joined Wits Laws School and then the Centre of Applied Legal Studies (CALS). I was also engaged as a Legal Policy Analyst, advising the Department of Land Affairs on the implementation of the new tenancy protection legislation. Those were fascinating times to be a legal academic, working in an environment where there was still tremendous faith in law as a vehicle for social change. I learnt a lot about the disjuncture between the utopian idealism of national statutory frameworks and the constraints on implementation at the provincial and local government level.

When my contract as a legal policy analyst came to an end, I founded the Law & Transformation Programme at CALS. With generous donor

support, we were able to conduct research on the implementation of constitutional rights to land, housing and water and also what we argued was an implied right to electricity.

In 2004, I became the Founding Director of SAIFAC, the South African Institute for Advanced Constitutional, Public, Human Rights and International law. I used to joke that I got the job because I was the only applicant who could remember the Institute’s full name. Working closely with Laurie Ackermann, the retired Constitutional Court Justice who had established SAIFAC, I built the Institute up from a one-person show into a medium-sized research centre. The main idea behind SAIFAC at the time was to leverage the resources of the Constitutional Court’s extensive library of comparative law materials for the promotion of constitutionalism and the rule of law on the African continent. Our programmes included support for LLM and doctoral students, a visiting fellowship scheme for legal academics and judges, and a public seminar series. I am grateful to David Bilchitz for taking the Institute to new heights after my departure for Australia in 2009.

Curtly Stevens

A community that is surrounded by the influence of gangs and drugs is where I was born and where I currently reside. As the first person in my family to earn a degree from a university, I feel extremely fortunate to have been able to emerge from such a difficult setting.

The pursuit of a career in law has always been my objective. One pivotal moment that fuelled my desire to become a lawyer was a visit to a legal office with my father. It was during a consultation regarding a criminal matter involving one of my siblings. This experience ignited a passion for the law, especially the potential to use it as a tool for positive change.

After obtaining a Master of Laws (LLM) degree with a focus on local government and multilevel government, my perspective began to evolve. Initially, I envisioned myself working as a member of the corporate legal profession. At the time, I must confess that I knew precious little about the study of local government. As a matter of fact, I never came across it while I was pursuing my undergraduate degree.

I was not deterred by this at all. My enthusiasm and passion for local government law grew as a result of the teaching approach of Professors Nico Steytler and Jaap De Visser. They connected theory to practical examples with a profound sense of passion that helped me develop a deeper understanding of the subject matter. This gave me a newfound sense of purpose – moving beyond a black-letter lawyer to one that aims to bring about

Nico Steytler

Although I discovered the word ‘constitutionalism’ only many decades later, it was during my student days at Stellenbosch University that elements of the concept first percolated into my consciousness. As a student rebelling against hierarchy and the apartheid edifice, the focus was on inequality and discrimination. We had to get permission from the rector of the university to bring a black speaker on to the lily-white campus. We reached out to UWC law students and when we met, we became the subject of a security-police raid. As law students, we organised speakers to tell us about a bill of rights, while our professors were only concerned with black-letter law. But it was a naïve equality pursuit, with little understanding of the economic foundations of apartheid.

policy change through research and advocacy.

I eventually decided to seek a doctoral degree since I had a strong desire to acquire additional knowledge about the South African local government system. This is a decision that I will never regret because it allowed me to meet experts in a variety of fields, including constitutional law, and it opened up many doors and opportunities. To my principals, I will be eternally grateful for the opportunity to learn about this area of law.

My story serves as a reminder that even in the darkest of circumstances, one can find the light of hope and drive for a better future. My journey to date shows the transformative power of education.

And then the hopelessness of resolving the intractable race conflict in South Africa overcame me. In my final year as a law student, the 1976 Soweto uprising by black learners – prompted by the imposition of Afrikaans as medium of instruction – exploded and the future looked bleak. An overseas postgraduate degree in shipping law would open new international vistas, so I thought. Having been accepted at the University of London, I put, in preparation, a book – Schmitthoff’s The Law of Carriage of Goods by Sea – in my backpack, while setting off to go hitchhiking around Europe. The burden of Schmitthoff became heavier by the day, until I unceremoniously dumped it in a waste bin: this was not for me. Luckily, I could choose from 80 other courses. My choices: comparative constitutional law in the newly decolonised Commonwealth; the international law of armed conflict; and criminology.

My first academic job took me to Durban. In the cauldron of protests and conflict, my teaching of criminal justice became infused with human rights. Writing more broadly about a new South Africa, elements of constitutionalism became part my vocabulary. I commenced a project on the Freedom Charter (the ANC’s central policy document, which contained the elements of constitutionalism) and a future South African legal order. But I was not a revolutionary, only a cautious constitutionalist.

My move to UWC in 1989 coincided with the

Asanga Welikala

Sri Lanka has shaped my thinking on constitutionalism. At the time of the country’s independence from the British Empire in 1948, it was seen as the embryonic postcolonial state with the greatest prospect of economic, social, and political success; when I was born three decades later, it was well on its way to becoming a basket case, if not already one. By the late 1970s, Sri Lanka had acquired the character that it has now: a political form that remains procedurally democratic but which is animated by a culture that delivers only poor leadership, populist corruption, social conflict, legal disorder, and consistent economic underperformance, despite tremendous natural and human potential.

In the 1980s, the failure of the state to channel, manage, and contain conflict erupted in civil war in the North and revolutionary insurrection in the South. Political violence was thus a graphic and pervasive presence in ordinary lives in the decades in which I grew up in Colombo. Suicide

unbanning of the ANC and other liberation movements. The Community Law Centre at UWC, established under the directorship of Dullah Omar, an activist lawyer, also became my home. Constitutionalism soon became common ground in the national discourse. After the travesties of parliamentary supremacy and apartheid, it was the obvious alternative. And being one of the advisers to the Constitutional Assembly drafting the final constitution, I shared the optimism that the Rechtstaat was a necessary ingredient in addressing South Africa’s many challenges.

But my commitment was immediately put to test. When a court, citing the new Bill of Rights, released a person accused of rape on bail who then went on to kill his victim, President Nelson Mandela was so upset that he wanted to abolish the right to bail. Dullah Omar, who become the Minister of Justice in Mandela’s first cabinet, asked me to draft a highly pro-crime control law on bail within the parameters of the Constitution. I duly did my best with a bad-ass law and reverse onuses, which eventually survived Constitutional Court scrutiny. But the tension between the constitutional idealism and practice struck me hard: it was going to be a battle.

And so it proved to be. Now, 30 years later, as we witness how political demands increasingly outmuscle our initial vision of constitutionalism, the need for open conversations on constitutionalism is as crucial for me as before.

bombings and terrorist attacks, assassinations and abductions, charred and dismembered human remains on roadsides, hartals and curfews, and that emblem of 20th century conflict and state failure, the Type 56 assault rifle, were all a ubiquitous part of daily life. Yet, amidst the mayhem, institutional political life carried on – elections happened, Parliaments sat, courts functioned, and government worked (perhaps rather too well, if authoritarianism is a sort of warped efficacy) –as did the social life of private schools and clubs, parties, holidays, cricket, and rugby.

This violent dysfunction was the context for my emerging personal conception of politics as I grew up. I realised early in life that each of the competing conceptions of the good in Sri Lankan politics – the Sinhala and Tamil ethno-nationalisms, revolutionary socialism, and developmentalist authoritarianism – were not answers but the causes of our problems. That is an analytical perspective that has remained constant, but my attitude as to normative alternatives has changed.

In the period of nearly 25 years of working on Sri Lanka, my career and thinking can be divided into a classical liberal early phase and a post-liberal current phase. The sources of the first phase are easily explained. In the 1990s and 2000s, the post-Cold War transnational model of liberal constitutionalism was at the height of its prestige. It involved commitments to constitutional supremacy, an extensive bill of fundamental rights drawing from the expanding catalogue of international human rights law, strong-form judicial review, fourth-pillar de-politicisation frameworks, and in an ethnically plural conflict-

Yonatan Fessha

My first year of law school at Addis Ababa University was a good one, as I finished second top of my class. I was having a good time with my family after returning home for a winter break. The joy was short-lived. Tragedy arrived at our door in the early morning of a day in August when soldiers banged on the front door with the butts of their guns. It was a bang that was to haunt me for a few years. On many evenings after that fateful morning, I would wake up thinking that someone was banging on the door. They are taking mom and dad, one of the soldiers said. What about us? I asked. As soldiers who were following orders, they had nothing to say to me. I was confused and my sibling were crying. The only crime of my parents was their identity, or rather, more accurately, the identity that the state assigned to them.

affected society, federalism. South Africa and Northern Ireland were high-status examples of its application.

Much has happened in Sri Lanka since then. The war ended not with a liberal peace settlement but in a fight to the finish reminiscent of early modern-era state-building. The post-war state has oscillated between ethnocratic authoritarianism and limited democratic reformism. And in 2022, the country nearly went bankrupt. During these vicissitudes, liberalism failed the test of providing an intellectually satisfying and electorally appealing alternative to Sri Lanka’s social, political, and economic needs, and its international prestige and legitimacy had suffered – to my mind, fatally – from the global financial crash, Iraq, and Afghanistan.

So my thinking on constitutionalism has taken a post-liberal turn. In this phase, I regard liberal constitutionalism as only one of way of analysing constitutions and prescribing constitutional norms. It is only one conception of constitutionalism among many others. Traditions of political thought other than liberalism have their own understandings of the concept of constitutionalism, and these have an important role in constitutional analysis. The self-serving invocation of illiberal religious or secular traditions by legitimacy-seeking authoritarians is not, by itself, a reason to exclude those traditions from constitutional theory. Closer examination of such traditions often reveals norms of constitutional order, which while doubtless alien to liberalism, do more to undermine than buttress modern authoritarianism. My present and future work looks at these questions.

It is no coincidence that the constitutional management of the politics of identity has become my main area of research. Perhaps that also informs the reasons why I find it problematic when the state engages in determining belongingness. I grapple with the legitimacy of the state’s engaging in identity determination. Is it appropriate for the state to engage in identity

Zemelak Ayele

My interest in federalism (multilevel government systems) began quite by accident. In 2008, I had the opportunity to do my LLM at UWC. My plan was to get an LLM in Public International Law (PIL). I was told I could select some of the PILrelated modules from among the modules offered at the Law Faculty and write an LLM thesis on a PIL-related topic. One of the modules on the list was ‘Intergovernmental Relations [IGR] Law’. I assumed this was a PIL module. The name of the course implied that it was a course about the law governing the relationships of governments. What else could it be? I thus registered for IGR law, among other modules.

When I told a friend about the courses I’d selected, he informed me that IGR law was, in fact, a constitutional law module, one that a certain Prof Nico Steytler offered. He added that Prof Steytler was a great professor and that I would enjoy the module. However, I decided I would replace IGR law with another module.

The following day, I went to the law school to do precisely that. However, the person who was supposed to help me with this was not in the office. And in the afternoon the class for IGR law would begin. So I decided to attend the first day of class and see how it went. That was when I met Nico for the first time. He began by telling us what the module was all about. I was impressed by how interested he was in the issues, and how eloquently he spoke. He had taught the module for several years before then. However, he taught as if he were thinking and talking about the issues for the first time in his life, with a smile and curiosity in his facial expressions.

determination? The decision of the state to deny us belongingness based on bloodline makes me question how a state goes about determining the identity of an individual, or a group for that matter. Undoubtedly, those dark days of my life find their way into how I think and write about how the ‘self’ should be determined.

us about local government. I didn’t know until then that local government was even something worthy of academic inquiry. On the day, a young man came into the class with a backpack and began setting up the projector. I thought he was an assistant getting things ready for an elderly professor, until he said, ‘Hi, everyone, I’m Jaap de Visser.’

I decided there and then to continue with the module.

A few weeks into the module, we were told a certain Prof De Visser would come and talk to

I submitted my first assignment, which Jaap commented on and marked. Clearly, he had read every line of what I wrote, seeing as he had taken a pencil to comment on every incorrect punctuation mark, long sentence, problematic use of words, and the like. Nico marked my second assignment, and gave me a very good mark. I asked Jaap if he would be my supervisor, since I had decided to write an LLM thesis on local government in Ethiopia. He agreed. And one day when I went to his office to discuss one of my chapters, he told me that he and Nico had decided to give me a bursary if I were interested in writing a PhD thesis on local government in Ethiopia. As the saying goes, the rest is history.

CHAPTER 11:

In Retrospect

Nico Steytler

On reflection, did the Mont Fleur Conversations live up to their goals? Did we take some steps, even only baby ones, towards the aim we set? First, did we nudge our thoughts in the direction of bluesky thinking? The answer is tied up with a second question: Did the format of conversations create an enabling environment for free and creative thinking? The third question shifts the focus onto ourselves as scholars of constitutionalism: What is the link, if any, between our personal narratives and our scholarship on constitutionalism? How do the personal and the disciplinary shape and inform each other?

Blue-sky thinking

Whether we came up with bright new ideas, tested new possibilities, or gained a better understanding of the fundamentals of our discipline (and perhaps re-evaluated them) is difficult to tell. I will not be so bold as to say that this or that was a truly novel idea that the Mont Fleur process helped engender. Each participant may have taken back some or other idea or insight which was novel to them. Only time will tell whether any idea was innovative, will be explored and explicated in publications, or will even find traction in practice.

Nevertheless, judging only by the lead-in pieces and comments, there were ideas and insights aplenty to spark off curiosity and stimulate the imagination.

In introducing the concept of constitutionalism, Theunis Roux’s analysis of the four major critiques of it (anti-majoritarian, leftist, populist and postcolonial) not only broadens our understanding of the concept, but also challenges us to consider these critiques seriously, since they question the very fundamentals of a liberal notion of constitutionalism.

Speaking on the subject of democracy, Eva Maria Belser critically examines institutions and procedures that produce flawed democratic governance – that create a gap between the government and the governed and lead (only) to government by the people rather than government for the people (as well). She poses the challenging question of whether democratic governance as currently practised is fit ‘to save the planet’. This challenge is followed by a series of bold ideas about alternative mechanisms for electing representatives in the hopes of bridging the gap, such as electing representatives by lottery or direct democracy. Eva Maria asks us to imagine

rebalancing the procedural and the substantive legitimacy of democracy beyond elections.

Charles Fombad in turn outlines various pressures being exerted on the constitutional doctrine of the separation of powers. Given the objective of the doctrine – to guard against tyranny – the independence of the judiciary remains the key component. Charles thus suggests ways in which such independence can be strengthened, focusing on appointment procedures. The same applies to independent institutions of oversight (‘the fourth branch of government’) and the question of how to prevent their capture by executives. Henk Kummeling comments, however, that in the debate about separation of powers, the citizens – whose freedom to develop should be the ultimate goal of government – are forgotten.

Octávio Ferraz forcefully shows that most humans do not enjoy human rights and that constitutionalism by itself, even where it is implemented, is unable to effect the fulfilment of these rights. At the root of this failure, he argues, lies inequality, and addressing this goes beyond the capacity of the courts. He argues, furthermore, that human rights are built upon a more or less egalitarian society, not the other way round. Given the urgency of the matter, he seeks strategies that would reach the goal more quickly than a slow and gradual process through the courts. He thus calls for blue-sky thinking on how to make societies more equal.

Judicial review is seen by most constitutionalists as the ultimate anchor of constitutionalism; the idea is that an independent judiciary is necessary for holding the other two branches of government to constitutional promises. Jeff King examines the legitimacy claims for such a power, settling on an instrumentalist view as the most viable. He argues for a restrained approach to judicial review: the judiciary is not the much-vaunted instrument of social change. Nevertheless, independence does not mean aloofness from society; instead, the courts should seek to nourish, not undermine, a public political culture supportive of its role as one of the checks on the other two branches.

Patricia Popelier asks us to consider her new theory of federalism, one already developed in her book, Dynamic Federalism (2022). The theory seeks to separate federalism from other constitutional principles, such as democracy and human rights. Dynamic federalism, she explains, is in search of a proper balance between cohesion and subnational autonomy. As Patricia’s theory is not a normative

one, it suggests that a balance has to be struck in accordance each country’s circumstances. In turn, the comments by Johanne Poirier and Eva Maria Belser initiated the debate, questioning the theory’s premise that federalism can be thought of as separate from the other elements of constitutionalism, but also urged blue-sky thinking on the need for, and modalities of, cohesion in multi-level systems.

In addressing the topic of federalism and conflict resolution, Assefa Fiseha argues that there is no clear answer to the question of whether federalism is an effective tool for managing conflicts or whether it aggravates conflicts and possibly leads to fragmentation. With deeply-divided societies in mind, he calls for the development of a new federal theory dealing with, among other things, the nature and pertinence of the factors that can swing the pendulum in one way or the other.

In reflecting on decentralisation and local government, Nico Steytler and Jaap de Visser, focusing on urban spaces, pose the question of why are cities failing in their main tasks of creating sustainable, liveable environments that provide a home for their residents. The authors question the orthodoxy underpinning the governance of everexpanding cities, and argue that the traditional notion of ‘village government’ should be replaced by the emerging reality of the ‘dialogical village’ where interest groups of various shapes and sizes participate in governance through dialogue.

Thinking outside the box, conjuring up new solutions to old problems, and reimagining orthodoxy is not an easy task. Yet it is part of our academic business, as each article we publish has to pass the test of having contributed something new to the literature. Does it suffice to clarify concepts, that is, to shed new light on old concepts? Yes, if it entails the reassessment of those very ideas. But our ambition was not of producing classic articles which may add something new to the literature. Mont Fleur has a more ambitious aim: to think together and to find out whether the literature might be going in the wrong direction.

In the conversations, inequality emerged as a central concern in all the sessions: without a minimum standard of equality, human rights, democracy, the rule of law, and power-sharing do not come to life. This is hardly a new insight, but it is significant that the contributors – no matter what issue they tackled – landed at this problem

when they were asked to get to the roots. This insight could leave traces; it would not make sense to study the sophistications of human rights, democracy, power sharing, or independence of the judiciary if inequality is not addressed. Constitutionalism will otherwise fail.

Novel practices in representative democracy were mentioned, for example, practices which should then be put to the test and applied in broader settings. Are these new ideas? Were new ideas born through discussion? A new idea tends most often to be very individualistic, but under the scrutiny of peers, it can be sharpened – or get the thumbs down. Equally valuable is posing questions that could lead to a further thought and research. The least that can happen is that participants could take further in their research ideas that they thought as novel or providing a better understanding.

It is not easy for academics to think under the blue sky. They are used to follow strict formats and methodologies. There were some glimpses of the blue sky, but we should recognise that our systems do not produce or encourage free or wild thinking. We need more practice and more recognition that such thinking is necessary.

Conversations

In considering these ideas, the question is thus whether a Mont Fleur form of discourse helped open up innovative discussion along new pathways. Was the format of engagement – one moving away from the usual conference procedure in which papers are delivered and then followed by a Q&A – conducive of a more open exchange of ideas in which novel ideas could be debated and new views formed?

Participants were asked to provide feedback on the methodology. How did they experience this mode of academic engagement? What worked? What didn’t? Is this way of interacting with colleagues worth pursuing further? What could be improved next time around?

In discussions at the time, the general sense was that the methodology was refreshing and conducive to an open exchange of views but could be refined. This was confirmed by the feedback received after the event.

Theunis Roux:

Ithoughtitwasahugesuccess.Ican’trememberwhenlastIenjoyedaconferencesomuch.Indeed,itwas notsomuchaconferenceasagathering–oflike-mindedpeople,unitedbysharedvalues,andinspired bythebeautifulsetting.Becauseweweren’tpresentinganddefendingfulldraftpapers,therewasmore openness, I thought, to taking onboard new ideas and perspectives. Also, the fact that we were quite a small group, engaging with each other over three days, meant that we got to understand each other’s perspectivesbetterandbetterasthedaysprogressed.

Henk Kummeling:

This approach is very valuable because it provides optimal space to try new ways. Many of the classic methods,suchasofferingpublicationsfor(double-blind)peerreview,areplayingitsafe.Iftheoutcome does not fit existing theories or [conform with] recognised authors, they are often not accepted. Presentingpapersatlargeconferenceswithresponsesfromcommentatorsalsooftenleadstounsurprising contributions, because it is often aimed at ‘scoring’, [at] gaining support, acceptance or recognition, amongstalargeaudienceofpeers.

Blue-sky thinking through conversations in a smaller group where people are together for a longer periodoftimecreatesasafeenvironmenttoexperimentwithnewideas.Presenters(ofpapers)arenot likelytobepubliclybroughtdown.Colleaguesthinkalongandmakesuggestions,whichleadstofurther reflectionanddepth.Commentsaremorelikelytobeacceptedandunderstoodbecauseparticipantsin theconversationsknoweachotherbetter,includingintermsofbackgroundandmotivations.

Assefa Fiseha:

Itwasanewexperiment,uniqueinmanyways.Itdoesnotfollowthetraditionalacademicdiscourseand inthatsenseforcesonetothinkopenlyandfacethenewchallengestofederalismandconstitutionalism innovatively.Thefeedbackfromreviewersandparticipantswascriticalinpushingtheissuesforwardand in sharpening the thought-process. In this sense, it was a high-level peer-learning process. The experts gatheredintheeventhaveimmenseexperienceintheirrespectivefields,andtheengagementwasvery thought-provokingprocess.

Eva Maria Belser:

Iwasveryexcitedabouttheprospectofconversingonconstitutionalismwithfriendsandcolleaguesand ofdoingwhatourhostscalled‘someblueskythinking’.Itwasabouttime,Ithought,thatacademicsand practitioners leave their offices full of screens, their desks full of piles, their texts full of footnotes, and theirmindsfullofdeadlinestogooutandlettheirmindswander.Whatabrilliantideaoftakingagroup of people with a connection to the topic out of their everyday lives and inviting them to think in new ways about old themes, not alone, at orchestrated conferences or scripted panels, but in free and open conversations.Theexperiencewasnew,excitingandinspiring.

The most important improvement to be made, it seems to me, is to converse more often. There is so much need for out of the box thinking. Most of us, however, have over time been transformed into the conformistscientistsourregulatedscientificsystemsallowtosucceed.Itisnotaneasytasktoproduce–withscientificrigor,butuntamedbyusualconstraints–freeandwildthoughtsandmakesenseofthefree thoughtsofothers.Tobetterunderstandourselvesandtheblueandunfortunatelyoftencloudedskyof constitutionalismunderwhichweliveandwork,wemustpracticemoreoften.

These comments highlight the value of the Mont Fleur Conversations – the openness of exchanges. The people and the place were influential. Being in a small group and spending three days together in a secluded environment contributed to participants’ understanding of each other’s perspectives and where they were coming from. As Henk wrote above, ‘it created a safe environment to experiment with new ideas’. The result, to quote Patricia Popelier, was that ‘the format, including the fireside stories, was humanly enriching, and intellectually stimulating’.

Not all of the good intentions were realised. First, too much of the old ‘paper-followed by Q&A’ practice prevailed. It served almost as the default position, and discussants continued to refer to the lead-in input as ‘the paper’. In this regard, the role of the moderator in structuring and guiding the conversations should be strengthened, and they should play a far more guiding role. Fully-versed in a lead-in piece and the comments it elicited, a moderator should identify beforehand the key issues that should be discussed and guide the conversation accordingly.

In future, the focus of the conversations could be narrowed to deal with a specific topic or theme. Great depth of discussion could then be achieved. Patricia Popelier suggested that ‘next time, I would perhaps choose a more focused theme, and pit two speakers against each other, followed by a more directed debate with the whole circle’.

In the spirit of open debate – the very object of the conversations – Johanne Poirier has added a critical voice, both challenging the approach to the subjects and the process by which new ideas are generated. Johanne’s comment is entitled, ‘The Mont Fleur conversation – post-mortem and reincarnation ;)’:

Bringing together a diverse group of constitutional scholars, from various parts of the world, to challenge the very ideas they have worked on, often collectively, over the last few decades, is a brilliant idea.

We are confronted with democratic decay, massive political polarisation, clashes of values and of rights. Our hopes that decentralised and polycentric governance may promote diversity, inclusion and autonomy while maintaining some forms of peaceful living together, are constantly challenged. The tools of the trade we’ve used – sometimes invented and certainly polished

– seem not only ineffective, but possibly counterproductive. What are liberal intellectuals to do?

We may carry on arguing that authoritarianism, centralisation, [and] patriarchal, racial and heteronormativity domination are not only ethically wrong, but that they foster human suffering. We may underscore that despite some retrenchment, ‘our tools’ (human rights, multiculturalism, feminism, federalism, etc.) have likely contributed to improving the lives of millions of people over the last decades (I for one prefer to be a woman in the West now [rather] than in basically any other period in human history). But we must also seriously question whether our most fundamentally held beliefs need a shake-down.

This was the rather radical promise of the Mont Fleur Conversations. And to a large extent, the meeting did allow us to synthesise the literature on eight important angles of the ‘just world’ that motivates us, and to subject them to friendly, yet thought-provoking, critique. Being a participant in this intellectual and human adventure was a rare privilege.

The format and the methodology contributed to fruitful exchanges, but also showed some limits with regard to how we are able to actually think outside-our-box(es).

The idea of meeting in a wonderful setting, outside the city, where we shared meals, outings, casual discussions, and fireside chats alongside more classic academic discussions, ought to be commended. Of course, we lived an obvious and uncomfortable paradox. There seemed to be a consensus that the capacity of our conceptual and institutional tools to create a more just society is conditioned on a significant redistribution of resources. And yet, there we were, in obvious comfort, a group of largely privileged intellectuals, debating the contours of constitutionalism. This said, I do think this form of retreat is very conducive to stepping outside intellectual comfort zones and to generate fresh ideas.

From a methodological perspective, it is the ‘neo-academic’ sessions that might need some rethinking. Put 20 professors in a room, as creative as they might be, [and] they’ll act like 20 professors! Some of the lead-in pieces did read like (excellent) academic papers, while

others did try to engage more with blue-sky thinking. The latter ought to be encouraged. The short reaction pieces could have been brought together in a more structured manner. Perhaps having one day of more traditional ‘seminars’ (as we did) and one or two days engaged in a less formal co-learning experiments might have helped us step outside our comfort zones and engaged our collective creativity even further.

Future ‘Mont Fleur Conversations’ (this could be a trademark ) might gain from having less ‘academic’ moderators who could encourage creative thinking that is less verbose. Animating small-group discussions, using drawings and other modes of communication, pushing controversial stories, discussing ideas that make us uncomfortable. We could draw on the practice of focus groups, talking circles, inclusive democracy, etc. I think allowing a bunch of (mostly male) intellectuals [to] be challenged by a group of (mostly female) activists, for instance, might create a zone of ‘discomfort’ and vulnerability. It is in those spaces that we are often most creative, less anchored in orthodoxies, and alive to novel ideas. In fact, the fireside stories, which were less academic, did open space for very moving and thoughtprovoking vulnerabilities. Fostered by trust.

In the more conventional seminars, I was somewhat surprised by the difficulties we had in engaging with ‘blue skies’ ideas and concepts from outside the ‘Global North’. We had no difficulty confronting ‘our’ concepts with Global South ‘brown earth’ realities. This reinforced the diagnosis that ‘our’ orthodoxies do not translate well in societies where the notion of powersharing, equality, loyalty and transparency might very well differ. This confirms the starting-point of the conversations. But where are the African blue-sky’s ideas? Where are the post-colonial notions? Where is the thinking about how to possibly rekindle some aspects of traditional leadership that might yield some positive impact on human dignity and flourishing?

Let me be clear, I am not suggesting that traditional governance is necessarily more conducive to a fairer society than representative democracy, for instance. I am not making a prescriptive or normative statement. I am making an epistemological one. What I am advocating is the importance of creating spaces in which such – admittedly controversial – ideas can be

discussed openly.

In Canada today, there is increasing acknowledgment that Indigenous legal traditions, even those which involve practices that might be problematic by ‘our’ standards, ought to be revitalised – to the extent that this is what members of the tradition actually wish. This raises highly difficult questions, of course. Should these traditions and/or self-government arrangements negotiated between Indigenous communities and Canadian governments be subject to the Canadian Charter of rights? Or should they be immune from constitutional norms which have been agreed upon by actors of the Canadian state, and not by Indigenous communities themselves? (See Dickson v Vuntut Gwitchin First Nation, soon to be rendered by the Supreme Court of Canada SCC: https://www. scc-csc.ca/case-dossier/info/sum-som-eng. aspx?cas=39856.)

‘Mont Fleur Conversations’ could foster even deeper comparative deliberations on the contours and limits of liberal constitutionalism in this context and others. This, of course, might involve the inclusion of post-colonial thinkers who challenge the very legitimacy of contemporary states. Which, almost by definition, constitutionalists rarely are.

In other words, having a more diversified group of participants would likely generate more ‘bluesky thinking’. They could include sociologists, historians, social activists, artists, ‘ordinary citizens’ (informally hearing stories from the hotel’s staff was powerful). More youth, more women (particularly Black women!). Indigenous scholars. Thinking outside the box requires confronting multiples boxes. This said, this wish for diversity raises another paradox. The trust that allows the conversations to unfold in a warm and friendly manner – that allow us to step outside our intellectual comfort zones – partly depends on pre-existing connections. This is a delicate balance that requires further ‘conversations about the conversations’.

Finally, I would end by sharing a story. With respect and warmth. During one of our conversations (about human rights, I believe), I said that as a liberal intellectual, I would not like to live in today’s Rwanda. But that as a woman and mother maybe I’d rather live in authoritarian Rwanda than in some apparently more

democratic regimes. Rwanda has one of the best health-care systems in Africa, higher women political participation, an enviable rate of female literacy, and is (relatively) safer for women. My statement shocked several colleagues, I know. And it was quickly dismissed. That’s OK: the last time I was in Rwanda was in 1998. So what do I know? Yet, this, in my view, was ‘outside-OURbox’ thinking that should be encouraged, not side-tracked, if we want to engage in blue-sky thinking and truly challenge ourselves.

These are fundamental questions that should occupy our minds. Johanne likes the idea of conversations to foster blue-sky thinking, but questions whether the ‘safe environment’ of the participants, some of whom knew each other beforehand, is the space most conducive to out-ofthe-box thinking. She would exchange the comfort of known and like-minded liberal constitutionalists for a ‘zone of discomfort’ more conducive to hothousing new ideas. Getting out-of-the-box thinking entails different players, different formats of discussion, less academic moderation. However, greater diversity raises a paradox, she observes. The very comfort of the safe space, which allows openness through trust, is not necessarily present at the outset of such a conversation. Is it a trade-off between the safe space of familiarity, producing openness, and the zone of discomfort and vulnerability, resulting in radical rethinking old concepts and norms? Could one strike a delicate balance between the two approaches?

Johanne also challenged the easy acceptance of Western norms of constitutionalism as the framework for discussion, without encountering a contrasting Global South (including an African) conception of constitutionalism. This challenge is also aired by Assefa Fiseha in his post-conference comment:

I think that some of the issues such as constitutionalism (as an ideology rooted in particular traditions or a much broader view of system of checks and balances) and the nature of state power (particularly in the Global South) and how it impacts constitutionalism and federalism or separation of powers need further engagement and investigation. These concepts as evolved in the West operate in a very different environment in the South, and experts in South need to come up with an innovative way of crafting the political and governance system. It is not that the concepts are irrelevant but that the nature of power in Africa is far from institutionalised, with real

actors operating outside the constitutional system, and [that] talk of the division of power or constitutionalism does not capture the essence of the challenge. The formal structures are there, but one finds a puppet president or prime minister where real power is either in the hands of the army, business elite, clan leader, party chair, etc. and analysis of the formal system does not give the real picture. In a way there are two systems in one: the façade formal one and the real power-holders. I am not sure if these challenges can be captured using the concepts developed elsewhere.

These responses indicate that the debate on constitutionalism has only started. The ease with which liberal constitutionalists can use the elements of the concept to measure governance in the Global South, and lament the widening schism between them, does not wrestle with the underlying politics of power. Are there different ways of controlling the abuse of power? This conversation is necessary.

Fireside stories

The fireside stories were aimed at exploring the link between the scholar of constitutionalism and the person. In their writing and actions, the participants are all committed constitutionalists and/or federalism scholars in one way or another. What prompted their interest and sustains their continuing commitment? By understanding the person, do we understand their work better? By knowing where they came from, do we get a better appreciation of their thoughts? Conversely, could their scholarship also impact on their person? In short, did fireside stories add any value in furthering our blue-sky thinking?

It would seem that the fireside stories contributed to some degree to an atmosphere of openness, trust and mutual understanding. Ideally, all of the participants should have had the opportunity to show their personal, more emotional, side. The available time at the glow of the fire was limited, but informally, during coffee breaks, meals, and walks, many stories were swapped. Although the majority of the stories contained in this book came after the event, they still offer insights when one reads the lead-in pieces and comments.

What can we draw from the stories?

An interest in and a commitment to law and constitutionalism are certainly present in participants hailing from countries where the

absence of constitutionalism was symptomatic of conflict, often violent. The lived experience of conflict in the Global South and the search for alternative humane means of governance were powerful incentives to see the rule of law as an important tool for social change towards advancing human dignity. The violent conflicts in South Africa, Sri Lanka, Cameroon, and Ethiopia left their indelible marks on their people.

No such dramatic events were necessary to elicit an interest in the need for peaceful co-existence through rules. Even apparently peaceful village life in Heidiland or Holland, without ostensible manifestations of conflict, can quicken an interest in governance. Conflicts, be they in the family, on religious grounds, or in local governance, evoke a sense of injustice. The question remained the same: How could power relations (most often uneven) be managed equitably?

Current events are equally powerful catalysts. Global or regional trends may provide the backdrop for a continuing or renewed interest in how to govern. The waxing and waning of democracy and the rule of law in Africa, the destruction of the Amazon forest, or the status of indigenous peoples in Brazil and Canada, raise the need for caring government strongly to the fore. Skepticism about constitutionalism may arise in functional liberal societies, yet changes in world events – the backsliding on democracy and the rule of law – may again validate the values and value of constitutionalism.

Finally …

The Mont Fleur Conversations brought together a small group of scholars with the specific invitation to indulge in blue-sky thinking on topics they had a shared interest in. The aim was to see whether a different mode of academic engagement to the usual staid procedure of paper-and-Q&A could stimulate new energy and innovative ideas. By bringing a small group together over three days at the congenial, beautiful and secluded space of Mont Fleur, and by focusing on conversations – prompted by lead-in pieces and comments and complemented by fireside stories – could the creative juices flow?

Measured against these modest aims of this experiment, the Mont Fleur Conversations did, I

The very subject matter of constitutional law, federalism or devolution may bring scholars to issues of conflict. As Patricia Popelier reflects, ‘I did not get into constitutional law out of outrage or a sense of injustice. It is, conversely, constitutional law that taught me to see injustice and be indignant.’ What irks some is the distance between ‘constitutions in the books’ and ‘constitutions its indigenous communities in action’. The schism between the path-breaking transformative constitutions of Brazil and South Africa and the destruction of the Amazon forest and its indigenous communities in the former and the growing inequality in the latter calls the value of these documents into question.

The stories also highlight how personal journeys to law and constitutionalism are not necessarily linear and guided at the outset by a known, desired goal: circumstances – large or small – shape people’s life choices in many, often strange, ways. The authorities’ decision to deny the best student his first choice of studying medicine eventually resulted in legal studies. The yearning to be a novelist was rerouted towards law for pragmatic reasons. An interest in air and space law came down to earth in the messy realm of constitutional law. Accidentally landing in the wrong lecture may lead a career in a different direction, as may chance attendance at a conference on local government. Whatever route led them to constitutionalism or federalism, the participants found that, having arrived there, the call for emancipatory governance did not leave them. We are all academics, but extremely diverse in our life-defining experiences.

think, prod us towards thinking more expansively on matters of great political and social importance. It created a safe space for an open discourse.

This ‘informal’ academic approach to key concerns of the day is but one way of generating new ideas; it may also be merely a small variation on standard academic practice, and of course there may be other, more effective ways. Instead of having a safe space, a ‘zone of discomfort and vulnerability’, populated by diversity of ideologies, backgrounds, genders and economic status, may produce better results. Raising questions about the fundamentals of this iteration of the project is in itself a sure sign of its success. It is, indeed, what the Mont Fleur Conversations are about.

ENDNOTES

Chapter 2

1 See section 2 below.

2 The term coined in Alexander Bickel, The Least Dangerous Branch (Bobbs-Merrill, 1962).

3 Dobbs v Jackson Women’s Health Organization 597 US ___ (2022).

4 References to the literature cited in the introduction are given below.

5 Martin Loughlin, Against Constitutionalism (Harvard University Press, 2022).

6 Ibid. 7.

7 Günter Frankenberg, Comparative Constitutional Studies: Between Magic and Deceit (Edward Elgar 2018) 94.

8 Ibid.

9 Unpublished paper on file with author.

10 WB Gallie, ‘Essentially Contested Concepts’ (1955–56)

56 Proceedings of the Aristotelian Society, New Series

11 Loughlin (n 5) 7 (including ‘political constitutionalism’ in his list of ‘misnomers’).

12 Richard Bellamy, Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy (CUP, 2007).

13 This term was coined, of course, by Alexander Bickel, The Least Dangerous Branch.

14 Mark Tushnet, Taking the Constitution Away from the Courts (Princeton University Press, 1999).

15 Jeremy Waldron, ‘The Core of the Case against Judicial Review’ (2006) 115 Yale Law Journal 1346.

16 For my response to Waldron, see Theunis Roux, ‘In Defence of Empirical Entanglement: The Methodological Flaw in Waldron’s Case against Judicial Review’ in Ron Levy and Graeme Orr (eds), The Cambridge Handbook of Deliberative Constitutionalism (CUP, 2018) 203. For my response to Loughlin, see Theunis Roux, ‘Constitutionalism Beyond Compare: Martin Loughlin’s Inadvertent Case for Comparative Constitutional Studies’ (2022) 1 Comparative Constitutional Studies 290–303.

17 See n 3.

18 Mark Tushnet, ‘For Constitutionalism’ available at https://papers.ssrn.com/sol3/papers.cfm?abstract_ id=4209674.

19 First published in 1844 and available in English translation in Karl Marx. Early Political Writings ed & trans Joseph O’Malley (CUP, 1994).

20 Ibid. 46.

21 Ibid.

22 Thomas Piketty, Capital in The Twenty-First Century trans Arthur Goldhammer (Harvard UP, 2014).

23 See Javier Couso, ‘Constructing ‘Privatopia’: The Role of Constitutional Law in Chile’s Radical Neoliberal Experiment’ in Ben Golder and Daniel McLoughlin (eds), The Politics of Legality in a Neoliberal Age (Routledge, 2019).

24 Michel Foucault, The Birth of Biopolitics: Lectures at the Collège de France, 1978–79 ed Michel Senellart trans Graham Burchell (Palgrave MacMillian, 2008).

25 Foucault (above) 4.

26 Ibid. 50, 226.

27 Ibid. 243.

28 Ibid. 241–43.

29 Wendy Brown, Undoing the Demos: Neoliberalism’s Stealth Revolution (Zone Books, 2015).

30 Wendy Brown, In the Ruins of Neo-Liberalism: The Rise of Anti-Democratic Politics in the West (Columbia UP, 2019).

31 Ibid.

32 Ibid.

33 Brown (n 30).

34 Samuel Moyn, Not Enough: Human Rights in an Unequal World (Harvard UP, 2018) 174 n 3 (citing Susan Marks, ‘Four Human Rights Myths’ in David Kinley et al. (eds), Human Rights: Old Problems, New Possibilities (2013) 226).

35 Ibid. 175.

36 Ibid. 185–86.

37 Ibid.

38 Ibid. 178–79.

39 Ibid. 176, 202.

40 Ibid. 211.

41 Ibid.

42 See, for example, Moyn’s statement on p. xi that ‘the relevance of distributive fairness to the survival of liberalism is impossible to avoid’.

43 Ibid.

44 See also Adam Chilton and Mila Versteeg, How Constitutional Rights Matter (OUP, 2020) (arguing that constitutional rights around which groups can organise are generally better enforced than other kinds of rights).

45 Jan-Werner Müller, What is Populism? (University of Pennsylvania Press, 2016); Jan-Werner Müller, ‘Populism and Constitutionalism’ in Cristóbal Rovira Kaltwasser, Paul Taggart, Paulina Ochoa Espejo, and Pierre Ostiguy (eds), The Oxford Handbook of Populism (OUP, 2017) 590; Cas Mudde and Cristóbal Rovira Kaltwasser, Populism: A Very Short Introduction (OUP, 2017) 79; Mark Tushnet, ‘Varieties of Populism’ (2019) 20 German Law Journal 382.

46 The latest in a long line of these is Wojciech Sadurski, A Pandemic of Populists (CUP, 2022).

47 Adam Czarnota, ‘Sources of Constitutional Populism –Democracy, Identity and Economic Exclusion’ in Martin Krygier, Adam Czarnota and Wojciech Sadurski (eds), Anti-Constitutional Populism (CUP, 2022) 495, 495–96.

48 Ibid. 496.

49 Ibid. 499.

50 Ibid. 498–501.

51 Ivan Krastev and Stephen Holmes, The Light that Failed (Pegasus Books, 2020).

52 Thus, there is a version of the decolonial critique that draws on Immanuel Wallerstein’s world-systems theory and the post-Bandung Conference push by former colonial countries to establish a more just international economic order. See Walter D Mignolo, Catherine E Walsh, On Decoloniality, Concepts, Analytics, Praxis (Duke UP, 2018) 59.

53 See references below.

54 See Deepak, Modiri, Madlingozi; references below.

55 The 1955 Bandung conference and the New International Economic Order.

56 Walter Mignolo on decoloniality.

57 Zoran Oklopcic, ‘The South of Western Constitutionalism: A Map Ahead of a Journey’ (2016) 37 Third World Quarterly 2080–2097.

58 See Philipp Dann, Michael Riegner and Maxime Bönnemann, ‘The Southern Turn in CCL’ in Philipp Dann et al. (eds), The Global South and Comparative Constitutional Law (OUP, 2020) 1.

59 Madhav Kholsa, India’s Founding Moment: The Constitution of a Most Surprising Democracy (Harvard UP, 2020).

60 Cass R Sunstein, ‘Social and Economic Rights? Lessons from South Africa’ (2000/2001) 11 Const. F. 123.

61 On the meaning of Southern constitutionalism as a category, see Dann et al. (n 58).

62 See Gayatra Chakravorty Spivak, ‘Can the Subaltern Speak?’ reprinted in R Morris (ed), Can the Subaltern Speak? Reflections on the History of an Idea (Columbia UP, 2010) (coining the term ‘epistemic violence’).

63 For a non-decolonial argument about the tendency of liberal constitutions to be used as a device to preserve the ‘hegemony’ of economic, political and judicial elites, see Ran Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Harvard UP, 2004).

64 See, for example, the Comaroffs, Modiri, Madlingozi, Deepak, and Sibanda.

65 Kar E Klare, ‘Legal Culture and Transformative Constitutionalism’ (1998) 14 South African Journal on Human Rights 146 .

66 Cf. Khosla vs Bhatia. Tharoor follows Khosla in classifying the Indian Constitution as liberal.

67 Coloniality of Power, Eurocentrism and Latin America (Duke University Press, 2000).

68 Boaventura de Sousa Santos, Epistemologies of the South: Justice against Epistemicide (Routledge, 2016).

69 Walter D Mignolo and Catherine E Walsh, On Decoloniality: Concepts, Analytics, Praxis (Duke UP, 2018).

70 J Sai Deepak, India That is Bharat: Coloniality, Civilisation, Constitution (New Delhi: Bloomsbury, 2021). The second volume has just been published: J Sai Deepak, India, Bharat and Pakistan: The Constitutional Journey of a Sandwiched Civilisation (Bloomsbury, 2022).

71 Deepak, India That is Bharat (n 70).

72 I have written about this separately in Theunis Roux, ‘The Constitutional Court’s 2018 Term: Lawfare or Window on the Struggle for Democratic Social Transformation?’ (2020) 10 Constitutional Court Review 1.

73 Tshepo Madlingozi, ‘The Proposed Amendment to the Constitution: Finishing the Unfinished Business of Decolonisation’ (2018) Critical Legal Thinking 6 April.

74 See Joel M Modiri ‘Conquest and Constitutionalism: First Thoughts on an Alternative Jurisprudence’ (2018) 34 South African Journal on Human Rights 300.

75 See Lindiwe Sisulu, ‘Hi Mzansi, have we seen justice?’ available at https://www.iol.co.za/dailynews/opinion/ lindiwe-sisulu-hi-mzansi-have-we-seen-justiced9b151e5-e5db-4293-aa21-dcccd52a36d3.

Chapter 4

1 Geoffrey Marshall (Constitutional Theory (Clarendon Press 1971) 124) concludes that the doctrine is ‘infected with so much imprecision and inconsistency that it may be counted little more than a jumbled portmanteau of arguments for policies which ought to be supported or rejected on other grounds’.

2 AV Dicey, The Law of the Constitution, John Allison (ed) (Oxford University Press 2013) 338.

3 See William Gwyn, The Meaning of Separation of Powers (Tulane University, 1965) ch 5; MJC Vile, Constitutionalism and the Separation of Powers (Clarendon Press, 1967) 58-67.

4 See Baron de Montesquieu, The Spirit of the Law: Book XI (JV Pritchard (ed), Thomas Nugent tr (Littleton, Rothman & Co 1991); WB Gwyn, ‘The Separation of Powers and Modern Forms of Democratic Government’ in Robert A Goldwin and Art Kaufman (eds), Separation of Powers—Does it still Work? (American Enterprise Institute for Public Policy Research 1986) 100-28; Vile (n 3) 76-97.

5 For fuller discussion of this, see Gwyn (n 4) ch 7 and Vile (n 3) ch 4.

6 See David G Morgan, The Separation of Powers in the Irish Constitution (Round Hall Sweet & Maxwell 1997)

7 Anthony Wilfred Bradley and Keith D Ewing, Constitutional and Administrative Law (15th edn, Pearson Education 2011) 83.

8 Gwyn (n 4) 2.

9 Jane Blessley, Constitutional Law Textbook (HLT Publications 1990) 18.

10 See Blessley (n 9) 18. In fact, Reginald Parker, ‘Historic Basis of Administrative Law: Separation of Powers and Judicial Supremacy’ (1958) 12 Rutgers Law Review 450, has argued that effective separation of powers in

Chapter 5

1 Eric Posner, The Twilight of Human Rights Law (OUP, 2014).

2 Giovanni Sartori, ‘Constitutionalism: A Preliminary Discussion,’ (1962) 56 American Political Science Review 853, 861; David S Law and Mila Versteeg. ‘Sham Constitutions’ (2013) 101 California Law Review 863–952. JSTOR, http://www.jstor.org/stable/23784322. Accessed 7 February 2024.

England dates from the passage of a statute making judges removable from office only by impeachment by Parliament for misconduct.

11 See Lord Mustill in R v Home Secretary, ex parte Fire Brigades Union [1995] 2 AC 567, who put it thus: ‘It is a feature of the peculiarly British conception of the separation of powers that Parliament, the executive and the courts have each their distinct and largely exclusive domain. Parliament has a legally unchallengeable right to make whatever laws it thinks right. The executive carries on the administration of the country in accordance with the powers conferred on it by laws. The courts interpret the laws, and see that they are obeyed.’

12 It must be pointed out, however, that until fairly recently this so-called cumul des mandats principle was allowed in France if it related to a local administrative or executive position.

13 For a full discussion, see the two works of Gwyn (n 3 and n 4).

14 For an account of the travails the French underwent in this period, see Samuel E Finer, Vernon Bogdanor, and Bernard Rudden, Comparing Constitutions (Clarendon Press 1995) 8-9.

15 In Essays on Freedom and Power cited in Arthur Vanderbilt, The Doctrine of the Separation of Powers and Its Present-Day Significance (University of Nebraska Press, 1953) 37.

16 For a discussion of some of the contemporary challenges, see Giovanni Bognetti, Dividing Powers: A Theory of the Separation of Powers (Wolters Kluwer, 2017); Antonia Baraggia, Cristina Fasone and Luca Pietro Vanoni (eds), New Challenges to the Separation of Powers: Dividing Powers (Edwar Elgar, 2020).

17 The head of the South African equivalent of the ombudsman, known as the Public Protector.

3 Thomas Piketty, Capital in the 21st Century (Penguin, 2014).

4 Walter Scheidel, The Great Leveller, 2017The Great Leveller (Princeton University Press, 2017).

Chapter 6

1 J Huso, ‘Guarding the Constitutionality of Laws in the Nordic Countries: A Comparative Paradigm’ (2000) 48 American Journal of Comparative Law 345.

2 Yana Gorokhovskaia, Adrian Shahbaz, and Amy Slipowitz, ‘Freedom in the World 2023’ (Freedom House, March 2023) <https://freedomhouse.org/report/freedomworld/2023/marking-50-years> accessed 6 October 2023.

3 Bruce Ackerman, We the People, Volume I: Foundations (Harvard University Press, 1991); Joel Colon Rios, Constituent Power and the Law (OUP, 2020).

4 Ibid.

5 Thomas Jefferson, ‘Letter to James Madison, 6 Sept 1789’, in MD Peterson (ed), Thomas Jefferson: Writings (Library of America, 1984) 959–64: ‘I set out on this ground which I suppose to be self evident, “that the earth belongs in usufruct to the living;” that the dead have neither powers nor rights over it.’

6 In acknowledgement of this problem, see Jeff King, ‘The Democratic Case for a Written Constitution’ (2019) 72(1) Current Legal Problems 1.

7 ‘Introduction: The Moral Reading and the Majoritarian Premise’ in Ronald Dworkin, Freedom’s Law (OUP, 1999) 37.

8 Jürgen Habermas, Between Facts and Norms (trs. William Rehg, MIT Press, 1998).

9 Ibid., ch 6.

10 A Theory of Justice (Harvard University Press, 1971; Rev’d Edn 1999); Political Liberalism (Columbia University Press, 1993).

11 Republicanism: A Theory of Freedom and Government (OUP, 1997).

12 Democracy and Distrust: A Theory of Judicial Review (Harvard University Press, 1981).

13 Jeremy Waldron, ‘The Core of the Case against Judicial Review’ (2006) 115(6) Yale Law Journal 1346; Richard Bellamy, Political Constitutionalism (CUP, 2008).

14 Michaela Hailbronner, ‘Transformative Constitutionalism: Not Only in the Global South’ (2017) 65(3) American Journal of Comparative Law 527.

15 Christopher McCrudden, ‘A Common Law of Human Rights? Transnational Judicial Conversations on Constitutional Rights’ (2000) 20(4) OJLS 499

16 The locus classicus is Alexander Bickel, The Least Dangerous Branch (Bobbs-Merrill, 1962) 16–23. For detailed discussion, see Barry Friedman, ‘The History of the Countermajoritarian Difficulty, Part One: The Road to Judicial Supremacy’ (1998) 73(2) NYU Law Review 333; Barry Friedman, ‘The History of the Countermajoritarian Difficulty, Part Two: Reconstruction’s Political Court’ (2002) 91 The Georgetown Law Journal 1.

17 Waldron (n 13); Bellamy (n 13).

18 Mariam Mufti, ‘What Do We Know about Hybrid Regimes after Two Decades of Scholarship?’ (2018) 6 Politics and Governance 112–119; Steven Levitsky and Lucan A Way, Competitive Authoritarianism: Hybrid Regimes after the Cold War (CUP, 2010).

19 Jeff King, ‘Institutional Approaches to Judicial Restraint’ (2008) 28(3) OJLS 409.

20 Neil Komesar, Law’s Limits: Rule of Law and the Supply and Demand of Rights (CUP, 2001).

21 David Kosar and Michal Bobek, ‘Global Solutions, Local Damages: A Critical Study in Judicial Councils in Central and Eastern Europe’ (2013) College of Europe Research Papers in Law 7/2013.

22 Kosar (n 21); David Kosar, ‘Selecting Strasbourg Judges: A Critique’ in Michal Bobek (ed), Selecting Europe’s Judges (OUP, 2015).

23 See Jeff King, Judging Social Rights (CUP, 2012) chs 6–9 for discussion.

24 Aileen Kavanagh, ‘Deference or Defiance? The Limits of the Judicial Role in Constitutional Adjudication’ in Grant Huscroft (ed), Expounding the Constitution: Essays in Constitutional Theory (CUP, 2008); Richard Posner, ‘The Rise and Fall of Judicial Self-Restraint’ (2012) 100 California Law Review 519; Richard Posner, How Judges Think (Harvard University Press, 2008).

25 Varun Gauri and Daniel Brinks (eds), Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World (CUP, 2008); Roberto Gargarella, Latin American Constitutionalism: The Engine Room of the Constitution (OUP, 2013); Octávio LM Ferraz, ‘The Right to Health in the Courts of Brazil: Worsening Health Inequities?’ (2009) 11(2) Health and Human Rights 33; César R Garavito and Peter Evans (eds), Transnational Advocacy Networks: Twenty Years of Evolving Theory and Practice (Dejusticia, 2018); Malcolm Langford, Social Rights Jurisprudence: Emerging Trends in International and Comparative Law (CUP, 2008); Malcolm Langford, Ben Cousins, and Jackie Dugard et al. (eds), Socioeconomic Rights in South Africa: Symbols or Substance? (CUP, 2014); Jason Brickhill (ed), Public Interest Litigation in South Africa (Juta, 2018).

26 For a more critical investigation, see Octávio LM Ferraz, Health as a Human Right: The Politics and Judicialisation of Health in Brazil (CUP, 2021).

27 For surveys of the predominantly American but voluminous literature, see M McCann, ‘Litigation and Legal Mobilization’ and C Epp, ‘Law as an Instrument of Social Reform’, in Keith E Whittington, R Daniel Kelemen, and Gregory A Caldeira (eds) The Oxford Handbook of Law and Politics (OUP, 2010), Chapters 30 and 34, respectively.

28 Stuart Scheingold, The Politics of Rights: Lawyers, Public Policy, and Political Change (University of Michigan Press, 2004); Michael McCann, Rights at Work: Pay Equity Reform and the Politics of Legal Mobilization (University of Chicago Press, 1994); Lisa Vanhala, Making Rights a Reality? Disability Rights Activists and Legal Mobilization (CUP, 2011).

29 The term used by Gerald Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (2nd edn, 2008).

30 Karl Marx, ‘Critique of the Gotha Programme’ in Marx & Engels Selected Works, Volume Three (Progress Publishers, 1970).

Chapter 7

1 Forum of Federations, n.d., ‘Federal countries’, available at https://forumfed.org/countries/.

2 International IDEA, 27 August 2020, ‘What is federalism?’, available at https://www.idea.int/news-media/media/whatfederalism.

3 Patricia Popelier, Dynamic Federalism. A New Theory for Cohesion and Regional Autonomy (Routledge 2021).

4 Patricia Popelier, ‘Federalism and Democracy: The Need for a Differentiated Approach’, in MJ Vinod et al. (eds) Cooperative Federalism in South Asia and Europe. Contemporary Issues and Trends (Routledge 2024) 46-58.

5 Wilfried Swenden, Federalism and Regionalism in Western Europe (Palgrave MacMillan, 2006).

6 Michael Burgess, In Search of the Federal Spirit (OUP, 2012).

7 Ronald L Watts, Comparing Federal Systems (McGillQueens University Press, 2008).

8 Jonathan Rodden and Erik Wibbels, ‘Beyond the Fiction of Federalism: Macroeconomic Management in Multitiered Systems’ (2002) World Politics 494-531.

9 Jan-Erik Lane and Svante Ersson. ‘The riddle of federalism: does federalism impact on democracy?’ (2005) 12 Democratisation 163-182.

10 Noah Friedkin, ‘Social Cohesion’ (2004) 30 Annu. Rev. Sociol. 409–25; David Schiefer and Jolanda van der Noll. ‘The essentials of social cohesion: a literature review’ (2017) 132 Soc Indic Res 579–603.

11 Ferran Requejo, Multinational Federalism and Value Pluralism (Routledge 2005) 74; Ferran Requejo, ‘Federalism and Democracy. The Case of Minority Nations: A Federal Deficit’, in Michael Burgess and Alain-G. Gagnon (eds), Federal Democracies (Routledge 2010) 290-291.

12 Jan Erk and Alain-G. Gagnon. ‘Constitutional ambiguity and federal trust: Codification of federalism in Canada, Spain and Belgium’, (2000) 10 Regional & Federal Studies 94.

Chapter 8

1 Daniel Elazar, Exploring Federalism (University of Alabama Press, 1987).

2 Crawford Young, The Politics of Cultural Pluralism (University of Wisconsin Press, 1974).

3 Will Kymlicka, Multicultural Odysseys (OUP, 2007) 6.

4 Arend Lijpart, ‘The Wave of Power Sharing Democracy’, in Andrew Reynolds (ed) The Architecture of Democracy: Constitutional Design, Conflict Management and Democracy (Oxford University Press, 2002) 37.

5 Samuel Huntington, The Third Wave: Democratization in the Late 20th Century (University of Oklahoma Press, 1991).

6 T Pettersson & P Wallensteen, ‘Armed Conflicts, 1946–2014’ (2015) 52:4 Journal of Peace Research 536–550.

13 Roger Mayer, James Davis and F David Schoorman, ‘An Integrative Model of Organizational Trust’ (1995) 20 The Academy of Management Review 709-734.

14 In Canada, we consider federalism as an ‘underlying’ constitutional principle alongside democracy, constitutionalism, the rule of law, minority protection, parliamentary sovereignty, judicial independence, the Honour of the Crown, etc. The Supreme Court claims they must be interpreted in a symbiotic way: Reference re Secession of Quebec, [1998] 2 SCR 217 at paras 49–82, 161 DLR (4th) 385.

15 Note that this may be an overly Westernised conception of federalism that assumes the presence of positive law. Indigenous confederacies likely conceive(d) of law, hierarchies and actors differently.

16 After reading Patricia’s piece (and the book on which it is based), I will henceforth add the label ‘more or less cohesive’!

17 I would invite readers to look at my critique of ‘rights’ divorced from power and self-government in the commentary on Octávio Ferraz’s think-piece on human rights. On this, see also Poirier, Johanne, ‘Autonomy and Diversity’, in Ron Watts & Rupak Chattopadhyay (eds) Building on and Accommodating Diversities (Viva Books, 2008) 37–53.

18 Of course, the situation is not as simple as this. What for some constitutes improvement (access to abortion as a means of promoting sexual equality and women’s autonomy) might be seen by others as the retrenchment of the rights of the unborn. This battle is played out in Latin America, for instance. On this, see Johanne Poirier & Colleen Sheppard, ‘Rights and Federalism: Rethinking the Connections’ (2022) 27 Review of Constitutional Studies / Revue d’études constitutionnelles 249–277.

7 Nancy Bermoe, ‘A New Look at Federalism: The Import of Institutions’ (2002) 13(2) Journal of Democracy 96.

8 See, for instance, Dimitrios Karmis and Wayne Norman, ‘The Revival of Federalism in Normative Political Theory’, in Dimitrios Karmis and Wayne Norman (eds) Theories of Federalism: A Reader (Palgrave Macmillan, 2005) 13.

9 Ted Robert Gurr, Minorities at Risk: A Global View of Ethnopolitical Conflict (United States Institute of Peace Press, 1993) 18–20; see also Sujit Choudhry and Nathan Hume, ‘Federalism, Devolution and Secession: From Classical to Post-Conflict Federalism,’ in Tom Ginsburg and Rosalind Dixon (eds) Comparative Constitutional Law (Edward Elgar, 2011) 364.

10 See for detail John Burton, Violence Explained (Manchester University Press, 1997) 32–37.

11 Dawn Walsh, Territorial Self Government as Conflict Management Tool (Palgrave Macmillan, 2018) 4–5.

12 Daniel Elazar, Exploring Federalism (University of Alabama Press, 1987); Philip Roeder, ‘Ethnofederalism and the Mismanagement of Conflicting Nationalism’ (2009) 19(2) Regional and Federal Studies 203–219.

13 John McGarry & Brendan O’Leary, ‘Must Pluri-national Federations Fail?’ (2009) 8(1) Ethnopolitics 11; Jan Erk & Lawrence Anderson, ‘The Paradox of Federalism: Does self-rule Accommodate or Exacerbate Ethnic Division?’ (2009) 19(2) Regional and Federal Studies 191–202.

14 Ibid.

15 Donald Horowitz, Constitutional Design: Proposals, Process, in Andrew Reynolds (ed) The Architecture of Democracy: Constitutional Design, Conflict Management and Democracy (Oxford University Press, 2002).

16 Sujit Choudhry, ‘Bridging Comparative Constitutional Law: Constitutional Design in Divided Societies’ in Sujit Choudhry (ed) Constitutional Design in Divided Societies (Oxford University Press, 2008).

17 George Anderson & Sujit Choudhry, ‘Territorial Cleavages and Constitutional Transitions: Political Mobilization, Constitution Making Processes and

Chapter 9

1 City, State: Constitutionalism and the Megacity (2020).

Constitutional Design’, in Anderson and Choudhry (eds) Territory and Power in Constitutional Transitions (Oxford University Press, 2019) 374.

18 Gurr (n 9) 18–20.

19 Anderson & Choudhry (n 17) 374.

20 See for detail Alain-G Gagnon, ‘Multinational Federalism: Challenges, Short Comings and Promises,’ (2021) 31(1) Regional and Federal Studies 99.

21 Soeren Keil & Elisabeth Alber, ‘Introduction: Federalism as Tool of Conflict Resolution,’ (2020) 19:4 Ethnopolitics 332.

22 Wilfried Swenden, ‘India: An Emerging or Fragile Federation? in Soeren Keil, Sabine Kropp (eds) Emerging Federal Structures in the Post-Cold War Era (Palgrave Macmillan, 2022) 165–188.

23 See for detail Will Kymlicka, Multiculturalism: Success, Failure, and the Future (Migration Policy Institute, 2012)

24 Gagnon (n 20) 109.

25 McGarry & O’Leary (n 13) 11; Erk & Anderson (n 13).

26 Erk & Anderson (n 13).

27 See McGarry & O’Leary (n 13) 8.