Transformative Constitutionalism: Not Only in the Global South

Abstract

Originally a South African “brand,” transformative constitutionalism is increasingly presented as a new, distinctively Southern paradigm of constitutionalism. Yet, it remains unclear what transformative constitutionalism entails. This Article argues that transformative constitutions differ from traditional liberal constitutions by conceptualizing the constitution as a comprehensive order for a more just and equal society and a tool to prompt state action to that purpose as much as restrain it. So understood, the constitutional law of a number of Northern systems such as Germany’s should also be understood as transformative in important aspects. An advantage of opening up our understanding of transformative constitutionalism in this way is the comparative perspective it offers. Unsurprisingly, courts and lawyers in different countries have approached transformative constitutionalism differently: while some have taken a more “traditional” law-focused approach, others have opted for a more collaborative one. Within the traditional legal model, exemplified by the German case, courts seek to preserve those features typically associated with judicial rather than political processes, for example the individualized nature of proceedings. In contrast, the Indian collaborative approach often involves negotiation between different stakeholders and emphasizes legal flexibility. Each model comes with a different approach to judicial legitimacy and its own downsides and advantages. This Article sketches out some first thoughts how we might go about taking the best of both worlds, once we recognize how global the transformative project truly is. To do so, I suggest we should seek to avoid the overly hierarchical German approach with its problematic consequences for democratic empowerment, while at the same time attempting to preserve the key role of individual rights and law as a specialized discipline of its own—thus providing the foundation for an independent source of professional judicial legitimacy.