Knowledge production in comparative constitutional law
Alterity – Contingency – Hybridity
The idea and the reality of the Global South represent different types of epistemological challenges to the disciplinary identity of comparative (constitutional) law. As a term, it is no more than two decades old, though its pedigree reaches back to the 1950s and the idea of a ‘third world’ which brought together Cold War developmental taxonomy with the earlier concept of a formerly excluded ‘third estate’ (tiers etat) staking a claim for recognition and representation. Today, the Global South alludes less to a geographical than to a socio-economic or, as shall be seen, an epistemic divide, not least as the common ‘one third/two thirds’ demarcation between states is cross cut by transnational categories such as social class, (post-)coloniality, or subalternity. The continuing salience of the idea of the Global South derives, thus, from its quality as a heuristic concept that subsumes different locations, conditions, and concerns that are at once abstract and concrete, global and local, metaphorical and real.
Global South as subversive idea
As such is it a deeply subversive idea, not just of Eurocentric essentialisms, but also of their customary modes of self-critique, for it straddles different and partly conflicting critical endeavours. These have essentially been employed as a critical wedge to crack open the veneer of comparative law’s episteme, its fundamental and foundational concepts, indeed, its comfortable embeddedness in (Western) modernity. The idea of the Global South has, thus, been used to expose the deep structural entanglement of the history and language of ‘modern law’ with what Walter Mignolo has termed the ‘logic of coloniality’. Epistemic decolonization is, thus, a central tenet of this critical program, with there being a need to ‘shift the geography of knowledge and recast critical theory within the frame of a geo- and bio-politics of knowledge [with] the first step in the grammar of decolonization […being] cast […as] learning to unlearn.’ (Mignolo 2007 – a point also emphasised by Vidya Kumar in the (oral) proceedings of the VRÜ anniversary conference which this blog symposium accompanies). This alludes, of course, to earlier methodological interventions by Enrique Dussel and Frantz Fanon who dissected different aspects of (post-)colonial subjectivity. Such unlearning calls both for a historical deconstruction of the modern narratives deriving from the concrete colonial past -and, hence, for a methodological ‘turn to history’-, as well as for the explicitation of the ever-present yet ever supressed radical alterity against which modern law is constructed -and that implies a parallel ‘turn to language’.
Hence, as an epistemic horizon articulated by post/decolonial theory, the idea of the Global South builds on, complements, and perhaps completes the critical self-reflection that has emerged in comparative law, vis-a-vis an insistent ‘mainstream’, over the past thirty-or-so years. Starting with Günter Frankenberg’s seminal 1997 article ‘Stranger Than Paradise: identity and politics in comparative law’, this critical self-reflection has led from the application of the Frankfurtian critical project to the discipline via the critique of the critique in the terms of the radical hermeneutics of post-structuralism, and to a post/decolonial turn which, as Makau Mutua puts it in relation to comparative law’s disciplinary sibling international law, consists of the venture to ‘understand, deconstruct, and unpack the uses of […] law as a medium for the creation and perpetuation of a racialised/genderized hierarchy of […] norms and institutions that sub-ordinate non-Europeans and Europeans alike.’
In more general terms, the idea of the Global South, thus, seeks to reverse the colonial epistemicide by which, as Ramon Grosfoguel puts it, the South has been reduced to first a place without culture, then a place without history, then a place without development, and, finally a a place without democracy’. Hence, the idea of the Global South provides new salience to critical theory’s continuing call to render transparent what two of its founders, Theodor Adorno and Max Horkheimer, notoriously called the ‘dialectic of enlightenment’, notably the inherent and inevitable entanglement of knowledge and power, through what Günter Frankenberg has called contextualizing, decentering, distancing and differencing, and to, on that basis, open up the possibility of a fresh engagement of genuine ‘others’ with each other(‘s law) (Frankenberg 1997).
As such it underwrites two propositions which critical comparative law -in parallel with critical international law- has been articulating ever since it began deconstructing the ‘mainstream’ of the ‘Grand Systems’ approach, the law reform projects, and of functionalist analysis. One bestows upon a critically reconstructed ‘comparative-law-as-methodology’ the epistemic privilege of a meta- or, as one well-known international legal theorist, Martti Koskeniemi, would have it, ‘counterdisciplinarity’ that purports to challenge the Eurocentric epistemes of the (social) sciences and is, thereby, is held up to serve as a framework for empowerment and emancipation – of and in the South as well as the North. Here critical comparative law -as much as critical international law- is styled as a sword of epistemic justice that escapes disciplinary essentialization and functionalization and that is, ‘instead, non-scientistic, non-traditional, oppositional, transformative’ (Frankenberg 1997), or, as Balakrishnan Rajagopal framed it, plainly counterhegemonic.
The other, closely related proposition is that the insights of critical comparative law impel a new ethics of knowledge production, one based on a continuous second-order contextualization of the terms and objects of inquiry with a view to conversing with, rather than rendering, translating, or normalizing incommensurate others. Post/Decolonial theorist Amy Allen in her 2016 book ‘The End of Progress” has framed this ethics as one in which one’s ‘first-order normative commitments require – in a further reflexive turn – a metanormative or second-order reflexivity about the status of [one’s] own normative horizon.’ In sum, as an idea the Global South posits the imperative of a comparative methodology based on radical contextualism and epistemic humility.
Making the Global South concrete
However, for as long as this Global South remains an abstract idea, a mere epistemic provocation, an ultimately bloodless other, there is a risk of it being reduced to but a new form of Eurocentrism that serves, primarily, to assuage the permanent bad conscience of scholars from the North and to legitimate the co-optation of scholars from the South. This South remains an exotic other that is inexorably intermediated by Eurocentric normative horizons and abridged to, as Jean and John Comaroff have pointed out in ‘Theory from the South’, to being ‘a place of parochial wisdom, of antiquarian traditions, of exotic ways and means […] above all, of unprocessed data […not] sources of refined knowledge […but] reservoirs of raw fact.’ Daniel Bonilla Maldonado has echoed this concern in his writings on comparative law in and of the Global South and the multiple biases it faces when received in and by the North. The agenda for a new comparative constitutional law must, thus, be to reach the concrete Global South and to make it speak not just to but about the North. This requires an inversion of the epistemic horizon so that the real Global South is opened up to afford, as, again, the Comaroffs have aptly put it, ‘privileged insight into the workings of the world at large […] that it is from here that our empirical grasp of its lineaments, and our theory-work in accounting for them, ought to be coming…’ It is an agenda articulated in various strands of ‘southern theory’ such as by Raewyn Connel (Southern Theory), Boaventura de Sousa Santos (Epistemologies of the South), Gurminder K Bhambra (Connected Sociologies) Sanjay Subrahmanyam (Connected Histories), Richard Delgado (Outsider Writing), or, indeed (and arguably), William Twining (Southern Voices). All have in common that they see the concrete Global South as much more than merely a theatre in which the effects of colonial and postcolonial violence can be observed (by the North).
In fact, the contention of this inverted framework is that (legal) modernity only plays out in its fullest sense in the Global South, for it is here that North and South are conjoined in the hybrid, complex and contingent mesclage that modernity always was – but that has largely been sanitized out of Northern consciousness. This concrete global South is, thus, a treasure trove of (comparative legal) knowledge, for it reveals the (legal) world behind the façade, the real live of the law, of the state, of the constitution. The post/decolonial turn needs, hence, to be complemented by an ethnographic one that opens up a new vision of the social, the political and the law, one that does not strife to exert ‘cognitive control’ (Frankenberg 1997) through one-sided purification and dichotomization.
Methodological moves for ‘meridianization’
Such an agenda of epistemic ‘meridianization’ implies a number of methodological moves. In the first place, it requires a ‘de-Weberization’ of the fundamental terms and normative ideals of (comparative) law, for it is the stylized idealtypes of the Weberian world -quite beyond the ‘real’ Weber’s much more differentiating glance- that, by and large, define the modern imaginary about the world (and its law). They produce a (Eurocentric) model that, much like Ptolemaic cosmology, seeks to squeeze the actually much more complex and fuzzy ‘reality’ -of North and South alike- into a preordained and cognitively closed framework, thereby producing either undercomplex or contradictory understandings about how (constitutional) law works. Instead, a heterodox logic of (systemic) complexity, ‘structural heterogeneity’ (Anibal Quijano), and ‘border thinking’ (Mignolo) needs to constitute the optic of comparativism.
Secondly, comparative research must be informed by what Sundya Pahuja and Luis Eslava have termed an ‘ethos of ethnography’ which calls not only for a focus on the concrete causes, practices, and effects of law ‘on the ground’ but also for an active deconstruction of the Eurocentric stratification of that ground into an epistemically privileged and normalized ‘us’ and an observed ‘exotic other;’ instead, comparative research has to start from the assumption of an exotic ‘us’. Thirdly, the approach to who speaks the law, and from where, needs to be pluralized. For the reality of the Global South shows that the symbolic capital that lubricates the operation of the law is structured in more hybrid ways than the influential elite-centric framework by Yves Dezalay and Bryant Garth admits. Indeed, as, for instance, Cythia Farid has recently argued, the deeply hybridized figure of the Southern ‘scholactivist’ who ‘strive[s] to get subaltern voices heard from [the South] while competing for access within the international legal field to further [her] claims’ is a case in point. This figure is at once reproduces and transgresses the Ptolemaic discourse (of the North), with all the cognitive dissonance this implies for the practice of law.
Most crucially, however, what counts as ‘the world’, that is, what counts as the empirical basis upon which comparative legal research is built, needs to be opened up to allow for a genuinely comparative optic in which the (de-Weberianized) legal forms of the South can be understood as elucidating the North (as much as the South). This optic must itself resist essentialization, not least by refraining from simply inverting the progress narrative that has informed ‘mainstream’ comparativism. If, as Amy Allen has argued, ‘forward-looking progress with respect to the decolonization of the normative foundations of critical theory [and comparativism] can take place only if we abandon the backward-looking story that positions European modernity as the outcome of a historical learning process.,’ (Allen 2016) then, likewise, the assimilation of non-European forms into a post-Eurocentric Eurocentrism is not the way ahead either. Instead a fundamental openness to alterity, hybridity, and contingency as the structural determinants of ‘law in practice’ is what is at the basis of the Global South and what may enable, in a literal sense, the re–cognition of the modern world in its likeness.
Florian Hoffmann is professor of law at the Pontifical Catholic University of Rio de Janeiro.
Cite as: Florian Hoffmann, „Knowledge Production in Comparative Constitutional Law: Alterity – Contingency – Hybridity“, Völkerrechtsblog, 31 July 2017, doi: 10.17176/20170731-172417.