Transformative Constitutionalism In The Global South: A Comparative Analysis Of Affirmative Action In India, Brazil, And South Africa
- IJLLR Journal
- 4 days ago
- 1 min read
Athul A K, Gujarat National Law University
ABSTRACT
Nations around the world, particularly the global south, have used constitutional as an emancipatory tool to transform the society, by healing the wounds of the past and guide towards a better future. This paper examines the transformative role played by the constitution in global south nations, specifically: India, South Africa and Brazil. This paper adopts a comparative legal analysis approach; this paper is confined to the domain of transformative constitutionalism in addressing social disabilities, and does not extend to other dimensions of constitutional transformation.
Introduction
Can a constitution do more than just regulate government; can it dismantle centuries of social inequality? As observed by Justice Langa, the core idea of transformative constitutionalism is to heal the wounds of the past and guide us to a better future. By transformative constitutionalism, we use the constitution as a tool to transform the society. Transformative constitutions cherish a broader emancipatory project, which attributes a key role to the state in pursuing change. This emancipatory project was particularly made in use in global south countries—specifically India, South Africa, and Brazil—whom were mired in social disabilities; such as, slavery, apartheid, and caste hierarchies.
The normative meaning of transformative constitutionalism is usually attributed to jurist Karl Klare, who defined transformative constitutionalism as a “long-term project of constitutional enactment, interpretation, and enforcement committed to transforming a country’s political and social institutions and power relationships in a democratic, participatory, and egalitarian direction.” This normative definition entails the three organs of the states—legislative, judiciary, and executive—and their combined commitment to transform the country’s political and social institutions.
