Liberalism as Open Source: Constitutionalism and Post-Colonialism in the Global South

Abstract

Contestations of liberal ideas are very popular these days. But what does the debate look like, when analyzed through the lens of postcolonial theories or from the perspective of the South? Is there a basic incompatibility of liberal constitutionalism and post-colonialism, as some claim? Or is it rather the other way around: Can postcolonial or Southern perspectives highlight problems and potentials of liberal constitutionalism in especially productive ways?

This paper makes three observations and arguments:

First, it argue that we should not seek comprehensive definitions of 'liberalismt#, 'South', etc. but rather be mindful of contexts and distinctions. Different examples of how liberalism can play out in the South show that there are various forms of liberalism and liberal constitutionalism and that there is no Western ownership of them. While it has been and can still be a foil for hegemony, liberalism is an open source, used by actors all over the world.

Secondly, the paper analyzes two major critiques that post- and decolonial authors but also other critical authors have made about liberalism and liberal constitutionalism: one is its epistemological ignorance, the other deals with liberalism’s ambivalent economic and political promises. I will argue, however, that these critiques do not result in a conceptual incompatibility between liberal constitutionalism and these decolonial or progressive positions.

Finally, the paper describes a path forward for legal scholarship: I will argue for a Southern turn in comparative legal scholarship and for thinking in varieties of constitutionalism globally. I think we need a much more foundational engagement and theorizing of the Southern experiences of constitutionalism. This can make visible the problematic promises of liberal constitutionalism and address their political and economic foundations in constitutional law.

Keywords: liberal constitutionalism, comparative constitutional law, global south, postcolonial theory