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CN Introduction

CT Toward a Constitutionalism of the Global South

Daniel Bonilla

The grammar of modern constitutionalism determines the structure and limits of key

components of contemporary legal and political discourse. This grammar constitutes

an important part of our legal and political imagination. It determines what questions

we ask about our polities, as well as the range of possible answers to these questions.

This grammar consists of a series of rules and principles about the appropriate use of

concepts like people, self-government, citizen, rights, equality, autonomy, nation, and

popular sovereignty.1 Queries about the normative relationship among state, nation,

and cultural diversity; the criteria that should be used to determine the legitimacy of

the state; the individuals who can be considered members of the polity; the

distinctions and limits between the private and public spheres; and the differences

between autonomous and heteronomous political communities makes sense to us

because they emerge from the rules and principles of modern constitutionalism.

Responses to these questions are certainly diverse. Different traditions of

interpretation in modern constitutionalism – liberalism, communitarianism, and

nationalism, among others – compete to control the way these concepts are

understood and put into practice.2 Yet these questions and answers cannot violate the

conceptual borders established by modern constitutionalism. If they do, they would

be considered unintelligible, irrelevant, or useless. Today, for example, it would be

difficult to accept the relevancy of a question about the relationship between the
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legitimacy of the state and the divine character of the king. It would also be very

difficult to consider valuable the idea that the fundamental rights of citizens should

be a function of race or gender. The secular character of modern constitutionalism –

as well as its egalitarian impulse – would sweep these issues to the margins of the

legal and political discourse.

The origins of modern constitutionalism can be linked to the works of a

relatively small group of philosophers.3 Thomas Hobbes, John Locke, Jean Jacques

Rousseau, Charles Montesquieu, Immanuel Kant, and John Stuart Mill, among

others, have contributed to the creation of the basic rules and principles that govern

modern constitutionalism. These authors are ineludible references for understanding

central political and legal issues of the modern and contemporary polities. Issues like

the relationship between consent and legitimacy, law and politics, will and reason,

the individual and the state, and freedom and diversity cannot be understood without

exploring the works of these political theorists. Modern constitutionalism’s

contractualism, individualism, and rationalism, for example, are connected to one or

several of these authors. A genealogy of modern political and legal imagination

cannot be complete without examining the works of these thinkers.

The fundamental rules and principles of modern constitutionalism articulated

by these authors are (and have been) continuously interpreted and reinterpreted. For

these norms to provide specific conceptual tools for understanding, evaluating, and

solving contemporary states’ basic challenges, they have to be given more specific

meaning. Yet the number of authoritative interpreters of this grammar is relatively

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small. Only a few institutions – such as the Supreme Court of the United States, the

European Court of Human Rights, and the German Constitutional Court – are

considered paradigmatic operators and enforcers of modern constitutionalism’s basic

rules and principles.4 These legal institutions are the ones that determine the

paradigmatic use of modern constitutionalism’s basic norms.5 They are the ones

responsible for defining and solving key contemporary political and legal problems

by giving specific content to modern constitutionalism’s rules and principles. The

answers that these institutions give to questions like “What are the limits of judicial

review?,” “What is the meaning of the principle of separation of powers?,” “Are

social and economic rights mere political aspirations?,” “How should cultural

minorities be recognized and accommodated?,” “Can security trump individual

rights?,” and “What are the rights of immigrants?” are considered by most legal

communities to fundamentally enable the connection of modern constitutionalism to

the realities of contemporary polities. Their answers to these questions usually

become inevitable references for other legal and political institutions around the

world. The jurisprudence of these institutions is widely read and quoted by scholars

and legal institutions all over the globe.

Likewise, the work of major contemporary political philosophers like John

Rawls, Robert Nozick, and Charles Taylor, to name only a few, is also considered

authoritative for comprehending, transforming, and updating the basic components of

modern constitutionalism. Their work brings up to date and sometimes transforms the

grammar of modern constitutionalism. Rawls’s “original position” and “the veil of

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ignorance,” for example, have been fundamental to discussions about the foundations

of a modern liberal polity.6 His “overlapping consensus” has been key for thinking

about how to accommodate diversity and make decisions about the norms that should

govern a pluralistic polity.7 Nozick’s defense of a minimal state as a way of

protecting autonomy has been crucial for imagining the structure that a state should

have in order to protect one of modern constitutionalism’s most important values.8

The history of the modern self offered by Taylor has notoriously contributed to the

understanding of the ways in which we think about the subject in general, and the

legal subject in particular.9 Of course, beneath this first level of authoritative and

well-recognized interpreters are several other levels of institutional and scholarly

interpreters of modern constitutionalism. Countless other scholars and institutions

interpret and use the language of modern constitutionalism. The number of

publications on political theory and constitutional law is enormous all over the world;

likewise, a great number of institutions around the globe use modern

constitutionalism to understand and address key political issues in their polities. Yet

most of them occupy a lower tier position in the dialogue that aims to give content to

and use modern constitutionalism. The politics of constitutional legal and political

knowledge has an unwritten but firmly entrenched hierarchy.

In this hierarchy, the scholarship and legal products created by the Global

South10 occupy a particularly low level. It is extraordinary to hear the name of a

scholar or a legal institution from the Global South in this dialogue. The

jurisprudence of a Global South court is very seldom mentioned by the specialized

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literature when discussing the meaning of key concepts of modern constitutionalism.

It is very rare to see a course on comparative constitutional law in a North American

or Western European university that includes a section about the constitutional law of

a country in the Global South.

There are many reasons for this lack. First, the law of the countries of the

Global South, historically, has been considered a secondary component of one of the

major legal traditions of the world.11 The majority of the legal systems of the Global

South, the argument goes, reproduce or derive from continental European or Anglo-

American law.12 Latin America is a weak member of the civil tradition (French,

German, Spanish, and Italian law, in particular);13 Africa is a young and naïve

participant in the Anglo-American or civil law tradition;14 Eastern Europe uses a

mixture of obsolete socialist law and recent imports from Anglo-American or

Western European Law;15 and the majority of law in present-day Asia is a

reproduction of the law of the colonial powers that dominated the region politically.16

Certainly, this official law coexists in many cases with one or more “native” legal

systems. Nevertheless, native law is subordinated to the official law of foreign origin

or else it is of inferior quality. At the same time, the dominant dialogue is colored by

an assumption that the level of effectiveness of the law in the Global South is

generally very low. The law is not a central instrument for social control in this

region of the world, the thinking goes. Other kinds of norms – moral and political, for

example – maintain order and social cohesion. From this perspective, the social,
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economic, and political underdevelopment of these regions of the world is directly

related to the underdevelopment of their legal systems.

It does not seem very useful, therefore, to study this weak academic

production, which reflects on a set of norms that are merely rules on paper and

subproducts of other legal traditions. At most, the law of the Global South – or rather

its inefficiency and lack of originality – can be of interest to sociologists,

anthropologists, and law professors interested in issues of social justice and the

reforms needed to achieve it.17 These social scientists, legal academics, and activists

may find an interesting object of study in the social norms that effectively regulate

the lives of those living in the region. Similarly, trying to explain and evaluate the

weakness of the law in the countries of the Global South, as well as proposing and

implementing reforms to solve the problems facing them, can be a fertile field of

research and action for the academia of the Global North. For legal academia in the

North, the attractive object of study in the Global South is not the law itself, or even

the local academic production examining it, but rather the failure of law in the

region.18

Second, the view that Global South countries’ law is merely an iteration of

other legal communities’ legal production has been consolidated by the influence that

U.S. law and the U.S. legal academy have had in the region in recent decades.19 The

impact of U.S. legal rules and scholarship during the past decades has been notable.

Several countries in the region, for example, have imported the U.S. accusatory

criminal system,20 and several others have imported U.S.-inspired neoclassical liberal
7 7

labor laws aimed to increase the flexibility of labor markets.21 Additionally, the U.S.

legal education model has been extremely influential in many Asian, Latin American,

Eastern European, and African countries.22 The work of legal scholars such as Ronald

Dworkin, Lawrence Tribe, and Carl Susstein has become familiar to an important

number of Global South law students and professors.23 The influence of U.S. schools

of thought like law and economics, and law and development is strong in many law

schools in the Global South. As a result, the Global North academy tends to assume

there is little of value in the law of the Global South. To understand and evaluate the

accusatory criminal system or liberal political and legal theory, the thinking goes, it is

not necessary to look to the South. To formulate the normative criteria that should

guide the transformation of law schools, it is not useful to explore the experiences of

law schools in the South. To attain these aims, it is thought necessary only to focus

on the academic production and legal practice of the United States – it is, after all, the

original font of the doctrine and theory that has nourished the changes in the law of

Global South countries during the past decades.

Third, the indifference of the Global North academy toward the law of the

Global South is related to the formalism of the Global South.24 The idea that law is a

closed, complete, coherent, and univocal system has controlled the way in which an

important part of the law in the Global South is thought about and practiced.25 A

significant part of Latin American,26 African,27 Asian,28 and Eastern Europe29 legal

academia is still dominated by various forms of legal formalism. The formalist

concept of law is certainly not very illuminating or useful. Many academics from the
8 8

Global South have argued so.30 Its descriptive and normative weaknesses are well

known: The mechanical theory of adjudication that it promotes does not describe the

way in which judges really decide cases. In practice, syllogism is only one of the

many tools that judges use to adjudicate. The distance between concepts, norms, and

facts has to be bridged by judges’ wills. There is no natural connection between law’s

concepts and mandates, and social reality. The supposed univocity of most legal

norms defended by legal formalism contrasts with the ambiguity and vagueness that

characterize many of these norms. The supposed coherence of the legal system is in

tension with the contradictions found in contemporary legal systems. As a way of

understanding law, formalism is analogous to the classical legal thought that

predominated during the second half of the nineteenth century and first decades of

the twentieth in the United States.31 This is a theoretical view that was radically

debilitated by the attack mounted against it by legal realism.32 For a significant part

of the U.S. legal academy, therefore, the legal systems of the Global South are only

useful to study or illustrate the failure of law.33 The law of the Global South

countries, it is thought, is not a useful object of study if the aim is to understand the

central issues of contemporary legal theory, doctrine, and practice.

Fourth, the academic communities in the North are more robust than the

academic communities in the South. The quantity and quality of academic products34

are much higher in law schools in the North than in the South. Similarly, the levels of

academic rigor and criticism are much higher in the former than in the latter region of

the world. The number of books and specialized journals produced in the legal
9 9

academia of the North, as well as their richness and complexity, is much greater than

the number produced in the South, for example. Similarly, although the dynamics and

rhythms of production and publication have been established and standardized in the

North, they are just beginning to be structured and disseminated in the South. The

number and type of products generated each academic year, the stability of

specialized journals, and the institutional quality control recognized by the academic

community, among others, are issues that are just beginning to be discussed or

internalized in many of the academic communities of the Global South.

Fifth, the closed and parochial character of the U.S. legal academy, along with

the selective openness of most of Western Europe’s legal academy, discourages any

dialogue with the legal institutions of the Global South.35 Despite the evident

strengths of U.S. law schools, for example, in matters like the quality and number of

publications, qualified human resources, and available economic resources, these

institutions tend to see law as a fundamentally national phenomenon. Law schools

that emphasize educating students for the practice of law do not find much value in

comparative law. Young professionals do not need to know foreign legal norms,

doctrine, or theory to practice competently. The more “academic” law schools seem

to believe that the most important objects of study can be found in the U.S. legal

community. Foreign legal systems and doctrine produced in other polities are not

very attractive to U.S. law professors. Western Europe’s legal academy might be

viewed as more open to comparative law. Even there, however, the legal systems

considered valuable to the comparative enterprise tend to be located in Europe or

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North America. Global South scholars or legal systems are seldom invited to the

dialogue on comparative law.

These five arguments not only explain the marginal position that Global

South scholars and legal institutions occupy in the interpretation, use, and

transformation of modern constitutionalism, but also serve as the source of a set of

unstated background assumptions that govern the production, circulation, and use of

legal knowledge. Generally, these assumptions remain implicit: They are not often

discussed openly among legal scholars and other legal operators like judges or

practitioners. However, they firmly govern the relationship between the legal

communities in the Global North and South. They determine, among other things, the

dialogue about the interpretation and use of the grammar of modern

constitutionalism. The first assumption that these five arguments generate is what I

would like to call the argument of the “production well.” This states that the only

context for the production of knowledge is the legal academia in the North. The

intellectual production of the South is considered to be a weak reproduction of the

knowledge generated in the North, a form of diffusion, or a mere local application of

the same. It is argued that while legal academia and institutions in the North create

original academic products, legal academia and institutions in the South only

articulate products derived from other sources. Although the former opens up new

descriptive, critical, and normative paths, the latter follows the routes already opened

by the epistemological communities of the Global North.

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Second, the arguments presented above generate what I call the assumption of

“protected geographical indication.” This indicates that all knowledge produced in

the North is worthy of respect and recognition per se, given the context from which it

emerges. Even before it has been read or evaluated, the mere origin of the academic

product generates positive qualifications. As a wine from Burgundy is considered to

be a good wine, an article written in English by an American professor and published

in a legal journal at a university in North America is considered to be of good quality,

even before being read. Legal knowledge generated in the South is only legitimate

when academics from the North have given it their approval. Legal products from the

South are marked (negatively) by their origin. This seal can only be lifted when

representatives from the production well of legitimate legal knowledge believe that it

should be. The positive qualification of an academic product from the South on the

part of Southern academics is, at best, an indication of its quality. Professors from the

North, however, must confirm this characterization. The assumption of the

production well is analytically distinguishable from the assumption of the protected

geographical indication; in practice, however, the two assumptions are intertwined.

Third, the five arguments outlined above produce what I call the specific

assumption of the “effective operator.” This unstated background assumption

indicates that academics and legal institutions from the North are much better trained

to make effective and legitimate use of legal knowledge than are academics and legal

institutions from the South. The use of academic products, in this view, has ethical

consequences. To ignore or violate the rules guiding the use of legal knowledge
12 12

questions the moral values that the academic community shares, may adversely affect

third parties, and threatens the legitimacy of intellectual products. To illustrate this

assumption, it might be useful to appeal to clinical legal education. The “effective

operator” assumption is particularly thorny in the clinical legal setting. Clinical

projects have an explicit political role, in that they usually involve and directly affect

vulnerable groups. Thus, the improper use of legal knowledge will have negative

consequences for clients of these clinics, as well as for the legitimacy of the projects

themselves. Clinical professors in the North have the academic know-how36 to make

proper use of the academic products created. Similarly, they have access to networks

and spaces of power to make effective use of this knowledge. On the other hand, the

inexperience, lack of knowledge, or ingenuousness of clinical professors in the South

with respect to the use of legal knowledge, it is thought, can lead clinical projects to

ruin. Again, professors from the North must make the key decisions on the use of the

knowledge that is created in or relevant to these clinical projects.

The foregoing factors explain the marginal place the Global South occupies in

the discussion about the content and structure of law and the rules that govern the

exchanges between Global North and Global South legal communities. These factors

have two dimensions: one that illuminates and one that obscures reality. On the one

hand,they describe and properly characterize one part of the reality of legal academic

communities of the Global South and North. It is true, for example, that many sectors

of the Global South legal academy have tended to reproduce and not to create legal

knowledge.37 Many of the legal norms that are issued, the doctrines that interpret
13 13

them, and the theories that substantiate, evaluate, or contextualize them are a local

application of knowledge created in foreign legal communities. Similarly, it is true

that legal formalism has controlled part of the Global South’s legal conscience and

that this is a poor concept of law. Many Global South legal scholars have argued so.38

Finally, it is also correct to say that a good part of the Global North legal academy is

centered on itself and is not very interested in what happens beyond its borders,

particularly if crossing these borders takes it to a legal system of the Global South.39

However, on the other hand, these arguments are questionable both from a

descriptive point of view and from a normative standpoint. These arguments, along

with the three assumptions they generate, homogenize a reality that is full of shades

and hues. Thus, first, these general arguments ignore the heterogeneity of legal

academic communities. There is no doubt that, overall, the law schools of the Global

North, in North America particularly, have built stronger academic communities than

those in the Global South. Nevertheless, there are internal weaknesses in both

contexts, as well as nuances and exceptions to the rules noted in each. Legal

academia in the North offers a wide range of schools, with varying levels of quality.

For example, a law school located at the top of the various rankings that exist in the

United States, Canada, or United Kingdom is not the same thing as a school in the

middle of such rankings, or one at the bottom.40 The differences are even more

important when comparing the strengths and weaknesses of schools in the top tier

with those in the second and third tiers of the hierarchy in the United States. The

contrasts in the quality of the academic products generated, as well as the financial
14 14

resources available, are notable in many cases. The strength of journals published, the

wealth of libraries, the number and quality of exchanges with academics from other

parts of the world, and the conferences offered vary markedly between these schools.

Finally, these arguments and rules obscure the fact that, even in good law schools,

there are professors who are not academically strong or that the quality of the

academic products written by any given professor varies, sometimes significantly. In

sum, the arguments of the well of production, protected designation of origin, and

effective operator ignore the differences in the quality of law schools. These

arguments invalidate this diversity and identify “professor” and “quality academic

product” with the law schools of the Global North, and with schools in the United

States in particular.

Similarly, it is important to note that these arguments eliminate a priori

differences within the academic communities of the Global South. A Brazilian,

Colombian, or Chilean “garage”41 law school is not the same thing as the law school

at the University of the Witwatersrand, the law school of the National University of

Taiwan, and the National Law School at the University of India, Bangalore. There are

salient differences in the quality of professors and academic products, as well as in

the economic resources at their disposal. It is true that the role still given to the legal

academic in many parts of the Global South is the systematization of the legal order

and that the production generated by this objective often leaves much to be desired.42

However, within the law schools of the Global South are nodes that meet high

academic standards and that distance themselves radically from the various formalist
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traditions found in the countries where they are located. In Latin America we can

mention, for example, research groups within the law schools of the Fundação

Getulio Vargas and University of São Paulo in Brazil, the University of the Andes

and the National University in Colombia, ITAM and the Autonomous University of

Mexico, and the Catholic University and Diego Portales University in Chile;43 in

Africa, nodes in the law schools at the University of Cape Town and University of

the Witwatersrand in South Africa, American University-Cairo in Egypt, and the

University of Nairobi in Kenya; in Asia, groups of scholars within the law schools at

the National University of Taiwan, the National University of Seoul, and the

University of Delhi; and in Eastern Europe, networks of academics within the law

schools of the University of Eastern Europe and Warsaw University. Similarly, there

are legal intellectuals and individual cases whose production is of the highest quality.

Consider, for example, Carlos Santiago Nino, Albie Sachs, and Upendra Baxi.

These universities and scholars have often been engines of innovative

research projects and legal publications. They have also explicitly and continuously

criticized legal formalism and the epistemological dependence that weakens many of

the region’s legal communities.44 But these examples, purely declarative, simply

illustrate the general argument. They are not meant to weigh and evaluate the totality

of legal academia in the Global North and South. They are only intended to

demonstrate the weakness of the argument that homogenizes legal academia in the

Global South at a low level and the academia of the Global North at a higher one.
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These factors and rules also ignore the fact that the Global South has indeed

formulated rich and valuable rules, theories, and doctrines. The jurisprudence of the

Colombian Constitutional Court on social and economic rights,45 the Brazilian

doctrine of the social function of property,46 and the contributions of Latin American

lawyers like Álvaro Álvarez and Carlos Calvo to the creation of international law47

and Mexican labor law, are just a few examples of complex legal products created in

the region. The jurisprudence of the South African Constitutional Court on the use of

comparative and international law for interpreting the South African Constitution and

the Indian Supreme Court’s Public Interest Litigation movement are two other

examples of innovative legal products created in the Global South. Finally, the

contributions to the history of international law and the law of the sea by R. P. Anand,

the rich and complex Islamic legal tradition of countries like Egypt and Pakistan, the

scholarship on duties and the rights of people written by African legal academics, and

the intersections among Buddhism, Hinduism, and law illustrate the multifaceted and

valuable contributions of the Global South to law.

The foregoing arguments and rules also obscure the fact that legal formalism

has not been the only concept of law present in the many legal communities that exist

in the Global South.48 The concepts of law offered by legal positivism,49 the free

school of law,50 and contemporary sociology of law,51 among others, have also been a

part of Latin American legal consciousness. In many Asian countries, a Confucian

concept of law has been influential.52 In North Africa, the legal imagination has been

shaped, partially, by an Islamic concept of law. Within the Global South academy,
17 17

there is a great diversity of views working to understand, evaluate, and transform

legal phenomena. Finally, it is important to indicate that, within the Global North

legal academy, there are some sectors interested in the law created by other political

communities. The Global Law Programs or the Comparative or Transnational Law

Centers of universities like New York University (NYU),53 Yale,54 Harvard,55

Georgetown,56 Michigan,57 Cornell,58 Duke,59 Virginia,60 Columbia,61 and Texas62

show the interest that already exists in such a field.63 The increasing number of

European comparative and transnational law journals also makes explicit the interest

in some Western European quarters for what happens beyond its borders.64

Nonetheless, the conversation about modern law, and particularly about

modern constitutionalism, is still too much centered in the Global North. The number

of participants in this conversation should be increased, the doors of the places where

this dialogue takes place should be opened to more southern interlocutors, and the

default attitude toward the law of the Global South should be changed. Of course, I

am not arguing that the legal products of the legal Global South should be valued

because of their origin. This would promote an inverted application of the production

well and protected geographical indication assumptions that I presented above. This

would also obscure the deficiencies and shortcomings of the law of the Global South.

Nor am I arguing in favor of a paternalistic attitude toward the law of the Global

South. I am not arguing that Global South legal scholars and legal products should a

priori be considered valuable participants in the conversation. Each legal product

should be evaluated on its own terms to determine its originality and worth.
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However, I do argue that a mindset that closes the door to all Global South legal

materials or that opens it for paternalistic reasons is unjustifiable. There is no good

reason for this kind of epistemic arrogance.

A 1. Three Courts from the Global South

The Indian Supreme Court, the South African Constitutional Court, and the

Colombian Constitutional Court have been among the most important and creative

courts in the Global South. In Asia, Africa, and Latin America, these courts are

widely seen as activist tribunals that have contributed (or attempted to contribute) to

the structural transformation of the public and private spheres of their countries.65

These courts’ jurisprudence has dealt with problems that are important for and

frequent in all contemporary liberal democracies. Issues about the interpretation and

protection of civil and political rights, for example, have been addressed regularly by

these three courts’ case law.66 Yet these courts’ jurisprudence has also dealt with

problems that are specific to or have special importance in the Global South, and they

have done so through original and imaginative legal theories and political strategies.

Issues related to political violence, poverty, and the consolidation of the rule of law

have been an important part of these Courts’ jurisprudence. These Courts, for

example, have decided cases about the rights of internally displaced people,67 how to

recognize and accommodate adversary religious minorities,68 the justiciability of

social and economic rights in contexts with high levels of poverty,69 and the limits

that Congress has for amending the Constitution in innovative and appealing ways.70
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The jurisprudence of these three Courts certainly moves within and is

supported by modern constitutionalism’s basic rules and principles. These Courts use

and comply with modern constitutionalism’s grammar. Consequently, as happens

with all courts, many of the cases that they decide are doctrinally unimportant – they

merely reiterate standard interpretations of rules and principles. In many of these

cases, furthermore, these three Courts replicate arguments offered by the

jurisprudence of the dominant institutional and academic interpreters of modern

constitutionalism, such as the Supreme Court of the United States and the European

Court of Human Rights.71 However, some of the interpretations offered by these

Courts present modern constitutionalism’s basic components in a new light, or at

least rearrange them in novel ways. The jurisprudence of these three Courts,

therefore, has something to contribute to the ongoing global conversation on

constitutionalism. It might be worthwhile to examine and criticize the jurisprudence

of these three Courts. Constitutional law scholars and other participants in this

dialogue would discover, for example, interesting ways of interpreting the principle

of separation of powers,72 appealing forms of interpreting the practical consequences

of connecting social and economic rights with the principle of human dignity,73 and

powerful strategies to allow poor individuals access to justice.74

This exercise would generate some benefits. On the one hand, interpreters

might use some of the tools formulated by these Courts, in appropriate

circumstances, to understand or attempt to solve legal and political issues within their

polities. On the other hand, it might allow interpreters to understand their own
20 20

constitutional systems more clearly or in a new light. In many cases, legal transplants

are not possible. A functionalist approach to comparative law might not be useful in

certain cases:75 There might be substantial differences between legal systems; the

political, economic, and cultural context might be too dissimilar; or the legal

institutions of one country might be interpreted by other countries as morally or

politically questionable.76 However, by comparing our constitutional system to

others’, we might be able to refine the understanding of who we are.77 Through

understanding the other, we might be able to better comprehend our own legal and

political community. The “other” can be a mirror in which we can find a more

accurate image of ourselves. A precise understanding of the other’s constitutional

arrangements might be useful to comprehend our own constitutional institutions.

Colombia, India, and South Africa are very different countries. It might be

argued then that to compare their highest courts would not be useful; the exercise

would not render many profits. The “cases” under examination would run parallel to

each other, not intersecting at any point. Geographically, economically, and

culturally, there are important dissimilarities among these countries. For one, they are

located on three different continents. The size and importance of their economies

vary widely. Colombia’s gross domestic product (GDP) in 2010 was nearly

US$288.2 billion,78 India’s was over US$1.7 trillion,79 and South Africa’s was about

US$363.7 billion.80 In Colombia, the majority of the population is Spanish-speaking81

and Catholic,82 whereas in India, the majority of the population speaks Hindi and

professes Hinduism.83 In South Africa, Zulu is the most common language spoken at
21 21

home but English is the dominant language in government and the media.84

Christianity is the dominant religion in South Africa.85 Colombia’s legal system,

moreover, belongs to the civil law tradition,86 India’s to the common law tradition,87

and South Africa’s is a mixture of the civil law and common law traditions.88 The

institutional and contextual differences among these three countries are certainly

many.

The three countries, however, have some important similarities. All three are

liberal democracies in the process of consolidation, their levels of inequality are

some of the highest in the world, their history has been marked by political violence,

and their cultural diversity is notable. Likewise, these three countries have legitimate

and activist constitutional or supreme courts that have addressed these political,

economic, and cultural issues in rich and complex ways. In these three countries, the

constitutional courts have played an important role in the protection of the rule of law

and the realization of individuals’ constitutional rights.

The constitutions of Colombia, South Africa, and India are structured around

liberal democratic values.89 The idea that human beings are autonomous and equal

individuals is central to these constitutions. The worth of all persons is a function of

their humanity. Human dignity is a fundamental value in these three countries’ legal

systems.90 These constitutions also contain a wide Bill of Rights that includes civil

and political rights, social and economic rights, and collective rights.91 All these

rights are understood as fundamental tools for the protection of autonomy and

equality. The constitutional frameworks of these three countries also include the
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principle of separation of powers and a system of checks and balances that limit the

power that can be concentrated in each branch of government. Additionally, the

constitutions of Colombia, India, and South Africa are committed to democracy, and

therefore to the idea that the government should be held accountable through

multiparty, open, and regularly organized elections. Finally, the constitutions of these

three countries establish that economic relations should be organized in the form of a

market economy.

The constitutional commitment to liberal democracy has not yet been

completely realized in Colombia, India, or South Africa. Political violence has

created serious obstacles to its consolidation. In Colombia, the armed conflict

between leftist guerilla groups and the government, fueled by drug trafficking, has

ravaged the country for more than four decades. In India, the violence between

Hindus and Muslims has weakened the polity since independence. And in South

Africa, the apartheid system and the struggle against its formal and informal rules

have caused tremendous unrest.

The weakness of these three countries’ political systems is also linked to

economic matters. The promises of economic justice and prosperity for all made by

the 1991 Colombian Constitution, the 1996 South African Constitution, and the 1948

Indian Constitution have not been realized. Colombia’s Gini coefficient is 0.578,

India’s is 0.368, and South Africa’s is 0.65.92 The percentage of the population

currently living under the poverty line in Colombia is 45.5 percent, in India 25

percent, and in South Africa 50 percent.93 The levels of unemployment in 2011

23 23

reached 11.2 percent in Colombia, 9.8 percent in India, and 23.9 percent in South

Africa. Poverty and inequality, no doubt, limit the legitimacy and stability of these

three countries’ political system.

Similarly, the appropriate recognition and accommodation of these three

countries’ cultural minorities is an aim that has not been achieved. The levels of

discrimination against cultural minorities are still high. The result has been religious

unrest, political violence, and the alienation and marginalization of many individuals

and groups. Cultural minorities’ rights are still very much paper rules in these

countries. Yet the cultural diversity that characterizes Colombia, India, and South

Africa is also one of their great assets. In Colombia, there are eighty-seven

indigenous communities that speak thirty-four different languages.94 There are

vibrant, culturally diverse black communities on the Atlantic and Pacific coasts, and

the Roma people have a small but strong presence in the country.95 Small European

and Middle Eastern communities enrich (and have historically enriched) Colombia’s

culture. In India, Hinduism, Buddhism, Jainism, Christianity, Zoroastrianism, and

Sikhism have a significant number of followers.96 The Muslim population, at around

149 million, constitutes the second largest Muslim community in the world. In India,

630 Scheduled Tribes are recognized by the state. Linguistically, India is similarly

rich: 114 languages are spoken by more than 10,000 persons, and more than 1 million

persons speak 14 of these languages.97 In South Africa, 79 percent of the population

is black, 8.9 percent colored, 2.5 percent Indian or Asian, and 9.6 percent white.98

The black population is divided into four major ethnic groups: Nguni, Sotho,
24 24

Shangaan-Tsonga, and Venda. South Africa recognizes eleven official linguistic

communities. Cultural diversity is, surely, a salient component of the past, present,

and future of Colombia, India, and South Africa.

The similarities among these three countries – consolidating liberal

democracies, political violence, high levels of inequality and poverty, and cultural

diversity – are notable. However, these are characteristics that they share with other

countries of the Global South. What makes these three countries relevant and

attractive for a comparative constitutional law analysis is that they have legitimate,

creative, and regionally prestigious constitutional courts that have addressed the

foregoing common issues. These three Courts have contributed to understanding and

confronting the challenges that these matters create. Surely, the jurisprudence of

these Courts has dealt with many other issues. However, their case law has been

particularly interesting and innovative when dealing with the many dimensions that

compose these key subjects. If this is true, several interesting questions should be

raised and answered: What are the contributions that these Courts have made to the

understanding, development, or transformation of modern constitutionalism? Are the

Colombian Constitutional Court, the Indian Supreme Court, and the Constitutional

Court of South Africa slowly creating a constitutionalism of the Global South? If so,

what are the differences and similarities between this emerging constitutionalism and

mainstream, Global North, constitutionalism? Is a constitutionalism of the Global

South needed?
25 25

These questions cannot be answered in this book. They are too broad,

complex, and difficult. They should be addressed collectively, as part of a long-term

comparative law project and within the ongoing global conversation on

constitutionalism. Nevertheless, Constitutionalism of the Global South does address

some issues directly related to these questions. The book aims to open the discussion

about the jurisprudence of the Constitutional Court of Colombia, the Indian Supreme

Court, and the South African Constitutional Court. The chapters gathered in this book

explore the jurisprudence of these courts on three matters: social and economic

rights, cultural diversity, and access to justice. These three topics are directly related

to poverty and inequality, political violence, cultural minorities, and the consolidation

of the rule of law – issues that are fundamental in these three countries. The book

also aims to bridge the gap that exists between the Global South and Global North on

constitutional matters. Finally, it aims to make explicit the need to widen the number

of authoritative interpreters of modern constitutionalism.

A 2. The Structure of the Book

The book is divided into three sections: social and economic rights, cultural diversity,

and access to justice. These issues have been central to the jurisprudence of the

Colombian Constitutional Court, the Supreme Court of India, and the South African

Constitutional Court. Each section is composed of three chapters, one written by a

Colombian, one by an Indian, and one by a South African scholar.

The first section of the book, “Socioeconomic Rights,” begins with a chapter

by David Bilchitz. In Chapter 1, he explores the relationship among distributive

26 26

justice, social and economic rights, and the Constitutions of South Africa, India, and

Colombia. His line of argumentation can be divided in three parts. First, he argues

that there is an important difference between these three Constitutions and the

Constitutions of the Global North: while the former emphasize social and economic

rights, the latter emphasize liberties. Bilchitz contends that the Constitutions of

Colombia, India, and South Africa are especially committed to substantive equality –

although they also recognize and value autonomy. Second, he analyzes the role that

the Constitutional Court of South Africa, the Supreme Court of India, and the

Constitutional Court of Colombia have had (and should have) in enforcing social and

economic rights, grounding his analysis in the particular political, economic, and

social conditions of each country. Bilchitz indicates that these Courts have played

and should continue to play an important role in protecting the individual’s right to

equality. Without real access to material resources, the distributive justice aims

pursued by the Constitutions of South Africa, India, and Colombia would not be

achieved. These Courts, Bilchitz argues, have stepped up to protect the social and

economic rights of all members of the polity; the work of these Courts is especially

significant given the weaknesses that the legislative and executive branches have in

these three countries. Third, Bilchitz studies the jurisprudence of the Constitutional

Court of South Africa, the Supreme Court of India, and the Constitutional Court of

Colombia on social and economic rights. He examines the legal theories and political

strategies used by these Courts to give content to and, ultimately, to realize these

rights. Bilchitz concludes that the jurisprudence of these Courts – although

27 27

promising, insofar as it has given new content to the principle of separation of

powers and formulated novel remedies and procedures to enforce social and

economic rights – has not yet created a true constitutionalism of the Global South.

Shylashri Shankar writes the second chapter of this section. In Chapter 2, she

argues that political commentators and scholars argue both that the Supreme Court of

India is an activist and a nonactivist tribunal. To support both of these views,

academics and political observers usually appeal to the Court’s jurisprudence on

social and economic rights. For some, the fact that the Court has transformed

directive principles (nonenforceable social rights) into judicially enforceable

fundamental rights shows the activist character of the Court. For others, the fact that

the Court has reached agreements with the executive branch to protect the status quo

and has not really enforced social and economic rights provides evidence of the

nonactivist character of the Tribunal. However, Shankar contends that both

approaches are wrong; they are based on fuzzy concepts of “activism.” Shankar

argues that a Court can be called “activist” only when it violates the borders of the

legislature’s and executive’s jurisdictions. Shankar also notes that an analysis of the

Court’s jurisprudence on health and education rights between 2006 and 2011 shows

that the Court has been neither strictly activist nor strictly nonactivist. What an

analysis of the Supreme Court of India’s jurisprudence on health and education rights

does show is that it has transformed itself into a negotiator between the state and its

citizens. Shankar argues that the Court has assumed the role of an embedded

negotiator in order to realize social and economic rights. In Shankar’s interpretation,

28 28

the Court’s jurisprudence clarifies the content of the rights – creating no new duties

in the process – and facilitates a dialogue between the state and its citizens

concerning the ways in which social and economic rights should be realized.

The first section of the book ends with the chapter written by Libardo Ariza.

In Chapter 3, Ariza examines the unconstitutional state of affairs (USOA) doctrine

formulated by the Colombian Constitutional Court. This doctrine can be used to stop

massive and systematic violations of fundamental rights caused by an institutional

blockage. This doctrine, which has been used to address the situation of the millions

of internally displaced people in Colombia (among other things), has been widely

considered as progressive by constitutional law scholars for two reasons. On the one

hand, it has allowed the Court to distance itself from a traditionally functional

interpretation of the principle of separation of powers. The Court, therefore, has been

interpreted as an institution that is willing to cross the borders that determine the

jurisdictions of the executive and legislative branches in order to protect the Bill of

Rights. On the other hand, the USOA doctrine shows the Court’s commitment to the

enforcement of social and economic rights – a key issue in a country plagued by

inequality and poverty. However, Ariza argues that this doctrine has been problematic

when applied to the prison system. Ariza argues that, in this case, the USOA has not

helped to stop the systematic violation of prisoners’ rights and has instead helped the

implementation of neoliberal punitive perspectives that focus on the construction of

more prisons and increasing mandatory minimum terms in prison. The slow

implementation of social and economic rights that the USOA doctrine allows by
29 29

sponsoring a traditional interpretation of these rights, Ariza argues, collides with the

inhumane conditions in which inmates are forced to live within the Colombian prison

system.

The second section of the book, “Cultural Diversity,” begins with a chapter by

Cathi Albertyn. In Chapter 4, she explores the tension between customary law and

gender equality that cuts across the South African Constitution, and she also

evaluates the jurisprudence developed by the South African Constitutional Court’s

jurisprudence in response to this tension. Albertyn explores the strengths and

weaknesses of the Courts’ main argument in the relevant case law: that the concept of

living law and custom should solve the conflicts between cultural diversity and

individual rights. She argues that the Courts’ approach has rightly protected gender

equality, but has not always properly recognized and accommodated cultural

diversity. Albertyn argues against a universalist interpretation of the South African

constitution, which would impose liberal values across all cultures. Instead, she

argues for an interpretation that gives priority to deliberation and that balances

cultural diversity, on the one hand, and autonomy and equality, on the other. For

Albertyn, this aim is achievable if we accept that cultures are entities in constant flux

and are susceptible to different interpretations, and that liberal values are open-

textured norms that can reasonably be given different contents. Cultures, she notes,

are contested, flexible, and permeable. Liberalism, she also points out, is not a

monolithic, unidimensional political philosophy; liberal values, Albertyn contends,

are both disputed and capable of change. These arguments, together with a contextual
30 30

approach that takes into account the particular characteristics of each conflict, will

probably attain, Albertyn argues, an adequate balance of the constitutional values that

constitute this conflict.

Grupeet Mahajan, in the second chapter of this section, explores the Indian

Supreme Court’s jurisprudence on freedom of religion. In Chapter 5, she argues that

the Court has tried to protect religious diversity by balancing the interests of religious

minorities and majorities, as well as the interests of the community and the

individual. The Court, Mahajan states, has not favored an approach that gives priority

to the Hindu religious majority, nor has it valued the individual over religious

congregations. The Court has tried to balance interreligious equality with diversity

and autonomy, while at the same time balancing individual equality with cultural

diversity. Throughout this process of balancing competing values, the Court has taken

into account the particularities of each case, the consequences of its decisions, public

order issues, and religious history and practices. The Court, from Mahajan’s

perspective, has also moved beyond interpreting the law to interpreting sacred texts

and has ruled in favor of state intervention on decisions made by religious

organizations. The Court, in Mahajan’s interpretation, has thus become a peacekeeper

among competing religious creeds – Hinduism, Islam, and Christianity – and the

protector of a democratic and stable India.

In the last chapter of this second section (Chapter 6), Daniel Bonilla

Maldonado analyzes the Colombian Constitutional Court’s jurisprudence on the right

to prior consultation. This jurisprudence, in Bonilla’s perspective, explores the

31 31

tension between cultural diversity and cultural unity that structures the Colombian

1991 Constitution. In particular, the relevant case law examines the tension between

cultural minorities’ self-government rights and the principle of political unity. Bonilla

Maldonado divides the jurisprudence of the Court into three stages and critically

examines their philosophical foundations. In the first stage, the Court defines the

characteristics that give structure to the right to prior consultation and formulates the

criteria that should guide its development; in the second stage, the Court determines

the rules that should govern the consultation of legislative and administrative

measures that directly affect cultural minorities; in the last stage, the Court reiterates

the first two stages of its jurisprudence, but rules that the right to prior consultation

includes cultural minorities’ right to veto the decisions made by the state when these

decisions put at risk their survival as distinct cultural communities. Bonilla

Maldonado argues that the Court’s jurisprudence on the right to prior consultation

can be supported by appealing to three philosophical models: multicultural liberal

monism, procedural liberal monism, and multicultural liberal pluralism. Bonilla

questions the first two models and states that the third one offers a better

interpretation of the right to prior consultation. This model appeals to a pluralistic

structure of the state, as well as to intercultural equality, corrective justice, self-

government rights, and cultural integrity in order to justify and give content to the

right to prior consultation.

The third section, “Access to Justice,” begins with a chapter by Jackie

Dugard. Chapter 7 is structured around the following question: Has the Constitutional
32 32

Court of South Africa become a voice for the poor? Dugard, assuming what she calls

a pro-poor approach, argues that this has not been the case. The Court, on the one

hand, has not opened a dialogue with the citizenry – particularly with the South

African poor. The Court, Dugard states, has not allowed poor South Africans to gain

direct access to justice, and, when they do arrive before the Court, poor individuals

and groups have often faced important jurisprudential obstacles to receiving

protection for their rights and interests, such as a weak interpretation of the right to

legal representation. On the other hand, the Court has not been willing, Dugard

argues, to enforce robustly social and economic rights. This is particularly

problematic, Dugard indicates, given the history of oppression and the structural

poverty that negatively affects the majority of South Africans. As a consequence,

Dugard contends, the South African Constitutional Court is increasingly losing

legitimacy and becoming an isolated and distrusted institution among poor South

Africans.

Menaka Gurusmany and Bipin Aspatwar are the authors of the second chapter

of this section. In Chapter 8, Gurusmany and Aspatwar explore the Supreme Court of

India’s jurisprudence on access to justice. The authors analyze the celebrated Public

Interest Litigation Movement led by the Indian Supreme Court and examine the

Court’s flexible interpretation of standing rules. The Court’s jurisprudence on the

right to access to justice, the authors argue, has opened the Court’s door to many poor

and vulnerable sections of the population, including prisoners, women, and members

of cultural minorities. The so-called epistolary jurisdiction, for example, has allowed
33 33

common citizens to get to the Court and to establish a dialogue with the Supreme

Tribunal. However, the authors also argue that, although the flexible interpretation of

locus standi has been widely applied by the Court in major constitutional cases where

the public interest is clearly at stake, it has not been applied by the Court in ordinary

cases. In these cases, the Court has formulated a more rigid interpretation of standing

rules, with negative consequences for both individual litigants and constitutional

justice in general.

Manuel Iturralde, in the third and last chapter of this section (Chapter 9),

explores the Colombian Constitutional Court’s jurisprudence on access to justice. In

particular, Iturralde examines the Court’s flexible interpretation of the tutela legal

action and the actio popularis. The first action has allowed common Colombians to

protect their fundamental rights through a fast, cheap, and uncomplicated legal

process. This legal action can be, in principle, brought before any judge in the

country to protect a fundamental right from an act or omission of the administration.

The second action has allowed common citizens to protect the coherence of the legal

system and exercise control over the executive and legislative branches. This legal

action allows any citizen to question the constitutionality of almost any law before

the Constitutional Court. Iturralde also analyzes the ways in which social

organizations and legal clinics have used these legal actions and the Court’s

jurisprudence on access to justice to promote the protection of the rights of

vulnerable and discriminated-against sectors of the population. Finally, Iturralde

studies the serious conflicts that the Constitutional Court’s access to justice
34 34

jurisprudence has created with the Supreme Court and the State Council. In this

analysis, Iturralde uses a sociolegal approach that utilizes Bourdieu’s concept of the

legal field.

Acknowledgments
I would like to thank Libardo Ariza for his very useful comments and suggestions.

Earlier versions of these chapters were presented at the Conference

“Constitutionalism in the Global South,” held at Fordham Law School in October

2011. Sheila Foster and Toni Fine were essential for the organization of this

conference. Without their ideas and support, the event would not have happened. The

conference would also not have been possible without the sponsorship of the Louis

Rakin Foundation. The funds provided by this foundation were fundamental to its

success. The Leitner Center for Human Rights at Fordham Law School also played a

very important role in this conference. I warmly thank its members for their

continuous support during my visit to Fordham Law School.

1Footnotes
See James Tully, STRANGE MULTIPLICITY: CONSTITUTIONALISM IN AN AGE OF DIVERSITY 62–79 (Cambridge
University Press[[AQ? Publisher?]]1997) (Eng.).

2 See id. at 36.

3 See id. at 42, 59–60, 79–80; Charles Howard McIlwain, CONSTITUTIONALISM ANCIENT AND MODERN 3–24
(Cornell University Press [[AQ? Publisher?]]1940).

4 In 2003, the International Journal of Constitutional Law published a symposium issue on constitutional borrowing.
The articles published in this volume mainly analyze cases about borrowing from Western Courts (U.S., German,
French, for example) or Constitutions. The overwhelming majority of the cases explored are those of non-Western
institutions borrowing from Western institutions. See D. M. Davis, Constitutional Borrowing: The Influence of Legal
Culture and Local History in the Reconstitution of Comparative Influence: The South African Experience, 1 INT’L. J.
CONST. L. 181–95 (2003); Lee Epstein and Jack Knight, Constitutional Borrowing and Nonborrowing, 1 INT’L. J.
CONST. L. 196–223 (2003); Yasuo Hasebe, Constitutional Borrowing and Political Theory, 1 INT’L. J. CONST. L. 224–
43 (2003); Wiktor Osiatynski, Paradoxes of Constitutional Borrowing, 1 INT’L. J. CONST. L. 244–68 (2003); Carlos F.
Rosenkrantz, Against Borrowings and Other Nonauthoritative Uses of Foreign Law, 1 INT’L. J. CONST. L. 269–95
(2003); Kim Lane Scheppele, Aspirational and Aversive Constitutionalism: The Case for Studying Cross-constitutional
Influence through Negative Models, 1 INT’L. J. CONST. L. 296–324 (2003).

5 See generally 1 INT’L. J. CONST. L. 181–324 (2003) (analyzing various aspects of constitutional borrowing while
overwhelmingly limiting the analyses to borrowings from Western institutions).

6 See John Rawls, A THEORY OF JUSTICE 15–24 (Harvard University Press rev. ed. [[AQ? Publisher?]]1999).

7 See id. at 387–8.

8 See generally Robert Nozick, ANARCHY, STATE, AND UTOPIA ([Basic Books [AQ? Publisher?]]1974) (arguing in
favor of a minimal state for the best protection of individual rights).

9 See generally Charles Taylor, SOURCES OF THE SELF: THE MAKING OF THE MODERN IDENTITY (Harvard University
Press [[AQ? Publisher?]]1989) (inquiring into the nature of identity and humanity in the modern West).

10 I use the words “Global South” and “Global North” as less pejorative synonyms of the words “developing countries”
and “developed countries,” respectively.

11 See Boaventura de Sousa Santos, Three Metaphors for a New Conception of Law: The Frontier, the Baroque and the
South, 29 L. SOC’Y. REV. 569, 579–82 (1995); Mark van Hoecke and Mark Warrington, Legal Cultures, Legal
Paradigms and Legal Doctrine: Towards a New Model for Comparative Law, 47 INT’L. COMP. L.Q. 495, 498–
99 (1998).

12 See de Sousa Santos, supra note 11, [[AQ? Supra note 11?]]at 579–82; Ugo Mattei, Three Patterns of Law:
Taxonomy and Change in the World’s Legal Systems, 45 AM. J. COMP. L. 5, 10–12 (1997); van Hoecke and Warrington,
supra note 11 at 498–99. [[AQ? Supra note 11?]]

13 See Jorge L. Esquirol, The Fictions of Latin American Law (Part I), 1997 UTAH L. REV. 425, 427–28 (1997); Jorge
L. Esquirol, Continuing Fictions of Latin American Law, 55 FLA. L. REV. 41, 42 (2003); Jorge L. Esquirol, The Failed
Law of Latin America, 56 AM. J. COMP. L. 75, 94–95 (2008).

14See Kwame Nkrumah, Law in Africa, 6 AFR. L. J. 103, 105 (1962).

15 See René David and J. E. Brierley, MAJOR LEGAL SYSTEMS IN THE WORLD TODAY, 222–4 (Simon and Schuster
2nd ed., [[AQ? Publisher?]] 1978).

16This inherited or imported law from the colonial cities coexists with the religious legal traditions in many countries in
the region, Islamic or Buddhist ones in particular. See Lama Abu-Odeh, The Politics of (Mis)recognition: Islamic Law
Pedagogy in American Academia, 52 AM. J. COMP. L. 789, 806–8 (2004).

17 See Brian Z. Tamanaha, “The Primacy of Society and the Failures of Law and Development,” p. 6, St. John’s Univ.
Legal Studies Research Paper Series, Paper No. 09–0172 (2009), available at http://papers.ssrn.com/sol3/papers.cfm?
abstract_id=1406999; Jorge L. Esquirol, Writing the Law of Latin America, 40 GEO. WASH. INT’L L. REV. 693, 706, 731
(2009). It is interesting to contrast this argument with the fact that, in other fields, such as literature and art, the
production of the South is considered relevant and valuable. Literature and art departments in the United States and
Europe, for example, usually offer courses on Latin American, Asian, or African literature or art. The faculties of these
departments often include professors from the South or those specialized in the artistic production of the South. In the
same way, the work of authors like Gabriel Garcia Marquez, J. M. Coetzee, and Gao Xingjian has contributed to the
creation of the grammar of contemporary literature. It would be important to explore the reasons that explain the
“universality” of southern art and the marginality of southern law.

18 See Esquirol, id.

19 See John Henry Merryman and Rogelio Pérez-Perdomo , THE CIVIL LAW TRADITION : AN INTRODUCTION TO
THE LEGAL SYSTEMS OF EUROPE AND LATIN AMERICA 57, 60 (Stanford University Press [[AQ? Publisher?]]2007); R.
Daniel Kelemen and Eric C. Sibbitt, The Globalization of American Law, 58 INT’L ORGANIZATION 103, 103–36; John
Henry Merryman, Comparative Law and Social Change: On the Origins, Style, Decline, and Revival of the Law and
Development Movement, 25 AM. J. COMP. L. 457, 484–89 (1977); Kerry Ritttich, The Future of Law and Development:
Second-Generation Reforms and the Incorporation of the Social, in THE NEW LAW AND ECONOMIC DEVELOPMENT 203,
203–52 (D. Trubek and A. Santos eds., Cambridge University Press[[AQ? Publisher?]]2006).

20 See Pilar Domingo and Rachel Sieder, Rule of Law, in LATIN AMERICA: THE INTERNATIONAL PROMOTION OF
JUDICIAL REFORM 1 (Pilar Domingo and Rachel Sieder eds., Institute of Latin American Studies [[AQ?
Publisher?]]2001) (Eng.); Andrés Torres, “From Inquisitorial to Accusatory: Colombia and Guatemala’s Legal
Transition,” p. 2, Law and Justice in the Americas Working Paper Series, Paper no. 4 (2007), available at
http://lawdigitalcommons.bc.edu/ljawps/4.

21 See María Victoria Murillo, Partisanship Amidst Convergence: The Politics of Labor Reform in Latin America, 37
COMPARATIVE POLITICS 441, 441–3; Graciela Bensusán, “La efectividad de la legislaciónlaboral en América Latina,
Instituto de Estudios Laborales,” pp. 13–22, Organización Internacional del Trabajo (2007), available at
http://www.ilo.org/public/spanish/bureau/inst/download/dp18107.pdf.

22 See Haim Sandberg, Legal Colonialism – Americanization of Legal Education in Israel, 10 (2) GLOBAL JURIST,
(Topics), article 6.

23 See Ugo Mattei, A Theory of Imperial Law: A Study on U.S. Hegemony and the Latin Resistance, 10 IND. J. GLOBAL
LEGAL STUD. 383, 447 (2003); Ugo Mattei, Why the Wind Changed: Intellectual Leadership in Western Law, 42
AM. J. COMP. L. 195 (1994); Wolfgang Wiegand, Americanization of Law: Reception or Convergence?, in LEGAL
CULTURE AND THE LEGAL PROFESSION 137 (Lawrence M. Friedman and Harry N. Scheiber eds., Westview Press[[AQ?
Publisher?]]1996).

24 See Carlos Peña González, “Characteristics and Challenges in Latin American Legal Education,” Conference of
International Legal Educators 1, 1–3 (2000), available at http://www.aals.org/2000international/.

25 See Carlos Santiago Nino, INTRODUCCIÓN AL ANÁLISIS DEL DERECHO 36–37 (Astrea[[AQ? Publisher?]]1984)
(Arg.).

26See Merryman and Pérez-Perdomo, supra note 19, at 66. [[AQ? Supra note 19?]]

27 See generally Martin Chanock, THE MAKING OF SOUTH AFRICAN LEGAL CULTURE 1902–1936: FEAR, FAVOUR AND
PREJUDICE (Cambridge University Press[[AQ? Publisher?]]2001) (Eng.); Samuel C. Nolutshungu, Constitutionalism in
Africa: Some Conclusions, in CONSTITUTIONALISM AND DEMOCRACY: TRANSITIONS IN THE CONTEMPORARY WORLD
(Douglas Greenberg, Stanley N. Katz, Melanie Beth Oliviero, and Steven C. Wheatley eds., Oxford University
Press[[AQ? Publisher?]]1993) (Eng.).

28 See generally ADMINISTRATIVE LAW AND GOVERNANCE IN ASIA (Tom Ginsburg and Albert H. Y. Chen eds.,
Routledge[[AQ? Publisher?]]2009) (Eng.); Tom Ginsburg, JUDICIAL REVIEW IN NEW DEMOCRACIES:
CONSTITUTIONAL COURTS IN ASIAN CASES 42 (Cambridge University Press[[AQ? Publisher?]]2003) (Eng.).

29 See, for example, Marcin Matczak, Judicial Formalism and Judicial Reform: An Example of Central and Eastern
Europe (Jul. 25, 2007) (unpublished paper presented at the annual meeting of The Law and Society Association, Berlin,
Germany) (describing the persistence of formalist-inflected adjudication in Poland).

30 See generally Carlos Santiago Nino, ETICA Y DERECHOS HUMANOS (Astrea[[AQ? Publisher?]]2003) (Arg.);
Eugenio Bulygin, EL POSITIVISMO JURÍDICO (Fontamara[[AQ? Publisher?]]2006) (Mex.); Carlos Alchourrón and
Eugenio Bulygin, INTRODUCCIÓN A LA METODOLOGÍA DE LAS CIENCIAS JURÍDICAS Y SOCIALES (Astrea[[AQ?
Publisher?]]1974) (Arg.); Boaventura de Sousa Santos, TOWARD A NEW LEGAL COMMON SENSE: LAW,
GLOBALIZATION, AND EMANCIPATION (Cambridge University Press[[AQ? Publisher?]]2002) (Eng.).

31 See, for example, Oliver Wendell Holmes, The Path of the Law, 10 HARV. L. REV. 457 (1897) (articulating the
antiformalist bases for which legal realism came to be known).

32 See, for example, John Dewey, Logical Method and the Law, 10 CORNELL L. Q. 17 (1924); Karl Llewellyn, Some
Realism about Realism – Responding to Dean Pound, 44 HARVARD L. REV. 1222 (1931). See also NATURALIZING
JURISPRUDENCE: ESSAYS ON AMERICAN LEGAL REALISM AND NATURALISM IN LEGAL PHILOSOPHY (Brian Leiter ed.,
Oxford University Press[[AQ? Publisher?]]2007); Brian Leiter, Legal Formalism and Legal Realism: What Is the
Issue? 16 LEGAL THEORY 111 (2010).

33 See generally Jorge L. Esquirol, Fictions of Latin American Law (Part 1), 1997 UTAH L. REV. 425 (1997) (exploring
how the failure of law has been used to understand Latin American law and highlighting the antiformalist strains in
Latin American law). It is interesting to note the parallels between the failure of law argument and the birth and early
development of some social sciences, like anthropology. Two arguments are of special importance in this context. On
the one hand, the idea that the only valuable local knowledge is the one that can be translated into the categories of the
“universal” knowledge – that is, the knowledge produced in the center. On the other, the thought that there is a
difference between the space where knowledge is produced – the center – and the space where fieldwork is done – the
periphery.

34 This chapter understands academic products as those created by nonclinical professors, as well as those generated by
legal clinics. There are remarkable differences between an article published in an academic journal and some of the
typical products of the clinics – a lawsuit or report on human rights, for example. However, I simply want to note in this
chapter that both products are the result of intellectual work generated in a law school.

35 See Ugo Mattei, An Opportunity Not to Be Missed: The Future of Comparative Law in The United States, 48 AM. J.
COMP. L. 712 (1998).

36 This academic know-how includes familiarity with and use of the ethical rules that should guide the use of legal
knowledge.

37 See generally DERECHO Y SOCIEDAD EN AMERICA LATINA: UN DEBATE SOBRE LOS ESTUDIOS JURIDICOS CRÍTICOS
(Cesar Rodriguez and Mauricio Garcia, eds.,ILSA [[AQ? Publisher?]]2003) (Colom.).

38 See generally Carlos Santiago Nino, ETICA Y DERECHOS HUMANOS (Astrea[ [AQ? Publisher?]]2003) (Arg.);
Eugenio Bulygin, EL POSITIVISMO JURÍDICO (Astrea[[AQ? Publisher?]]2006) (Mex.); Carlos Alchourrón and
Eugenio Bulygin, INTRODUCCIÓN A LA METODOLOGÍA DE LAS CIENCIAS JURÍDICAS Y SOCIALES (Astrea[[AQ?
Publisher?]]1974) (Arg.); Boaventura de Sousa Santos, TOWARD A NEW LEGAL COMMON SENSE: LAW,
GLOBALIZATION, AND EMANCIPATION ([Cambidge University Press [AQ? Publisher?]]2002) (Eng.).

39 See Ugo Mattei, Three Patterns of Law: Taxonomy and Change in the World’s Legal System, 45 AM. J. COMP. L. 5, 7
(1997).

40The two best-known publications in which law schools in the United States are classified are US News and
Lawschool 100. See Best Law Schools, U.S. NEWS AND WORLD REPORT, available at http://grad-
schools.usnews.rankingsandreviews.com/best-graduate-schools/top-law-schools (last accessed Feb. 2, 2012). For
Canadian law school rankings, see Ranking Canada’s Law Schools, MACLEANS.CA, available at
http://www2.macleans.ca/2009/09/16/ranking-canada%E2%80%99s-law-schools/ (last accessed Feb. 2, 2012). For
rankings of law schools in the United Kingdom, see University Guide 2011: Law, THE GUARDIAN, available at
http://www.guardian.co.uk/education/table/2010/jun/04/university-guide-law (last accessed Feb. 2, 2012). Law schools
have criticized these classifications from various perspectives. Law school administrators and professors argue, for
example, that the criteria used by U.S. News to rank law schools are vague, irrelevant, or incomplete. I agree with these
critiques. However, for the purposes of this essay, they are useful for showing the overall differences within legal
academia in the United States. I would say that many in the U.S. legal community agree in that there are notable
differences between the first fifteen law schools and the last fifteen law schools in the top 100, or between first-tier law
schools and third-tier law schools. Yet even these broad differences are obscured by the arguments of the production
well, protected geographical indication, and effective operator.

41“Garage universities” are those whose primary goal is the profit of their founders and whose standards of quality are
very low. Generally, their infrastructure is very poor.

42A portion of legal academia in Latin America, Africa, Asia, and Eastern Europe, therefore, continues to believe that
the work of an academic should be to define the content of the principles and rules that comprise the legal system, as
well as how to resolve their inconsistencies. Hence, in many of these law schools, the treatise is considered to be the
product par excellence of law professors. In the best of cases, the basic units of the national legal systems of the Global
South are judiciously systematized in this type of academic product. Nevertheless, in most cases, these academic
products are nothing more than glosses to the law. In these texts, the professor of law repeats the content of legal norms
in different wording and makes comments that are more or less marginal to guiding professional practice or morally
evaluating the contents of the law. The weak products of parts of the legal academia in the Global South can be partially
explained by the fact that the professionalization of the legal academy is a very recent event in most of the region.
Historically, judges and practitioners have constituted law faculties in most of the Global South. These part-time law
professors, although many times incredibly competent and committed to teaching and writing, can only dedicate a few
hours in the morning or at night to their academic endeavors. Likewise, the weaknesses of legal academia in the Global
South are related to the weaknesses of the university system in many of the region’s countries. The economic resources
received by the public university system have never been very high and have recently declined in many of them.

43 The universities of Sao Pablo, Andes, Católica, and Autónoma are among the ten best universities in Latin America.
See World’s Best Universities: Latin America, U.S. NEWS AND WORLD REPORT, available at
http://www.U.S.news.com/education/worlds-best-universities-rankings/best-universities-in-latin-america (last accessed
Jan. 17, 2012).

44 Of course, the legal products created by these (and other) universities are not formulated in a vacuum. They are
nourished by preexistent legal concepts and practices – many of which were not locally created. Yet this is the case with
the creation of all legal knowledge. The contributions of U.S. legal liberalism, for example, are nourished by the
European liberal tradition. Locke, Mill, and Kant are key figures in the work of authors like John Rawls and Ronald
Dworkin. Equally, many of the contributions of the Critical Legal Studies are based on the oeuvre of European authors
like Marx and Gramsci. New legal knowledge, as with all knowledge, is created only on the edges of the discipline, and
it is based on the preexisting conceptual structure. For understanding the process through which legal knowledge is
produced in the South, it is key to understand the process through which legal academic elites have been created
recently in the region. An important number of the members of these elites have studied in universities in the Global
North and, thus, have knowledge of both the local and global legal academic contexts.

45 See generally Manuel José Cepeda-Espinosa, Judicial Activism in a Violent Context: The Origin, Role, and Impact
of the Colombian Constitutional Court, 3 WASH. U. GLOBAL STUD. L. REV. 539 (2004).

46 See generally Alexandre dos Santos Cunha, The Social Function of Property in Brazilian Law, 80 FORDHAM L. REV.
1171 (2011).

47 See generally Liliana Obregón, Noted for the Dissent: The International Life of Alvaro Alvarez, 19 LEIDEN J. INT’L
L. 983 (2006) (Eng.).

48 See Alexandra Huneeus et al., Introduction in CULTURES OF LEGALITY: JUDICIALIZATION AND POLITICAL ACTIVISM
IN LATIN AMERICA 3, 3–5 (Alexandra Hunee, et al., eds., Cambridge University Press[[AQ? Publisher?]]2010).

49 See generally Carlos Santiago Nino, INTRODUCCIÓN AL ANÁLISIS DEL DERECHO (Astrea[[AQ? Publisher?]]1984)
(Arg.); Genaro Carrió, NOTAS SOBRE DERECHO Y LENGUAJE ([[AQ? Publisher?]]1965) (Arg.).

50 See generally Diego López Medina, TEORÍA IMPURA DEL DERECHO (Legis[ [AQ? Publisher?]]2004) (Col.).
51 See Marcelo Gomes Justo and Helena Singer, Sociology of Law in Brazil: A Critical Approach, AM. SOCIOLOGIST,
Summer 2001, at 10–25.

52 See Werner Menski, Comparative Law in Global Context, in THE LEGAL SYSTEMS OF ASIA AND AFRICA 531–34
(Cambridge University Press[[AQ? Publisher?]]2006).

53 Hauser Global Law School Program, Institute for International Law and Justice, Center for Human Rights and
Global Justice, Center on Law and Security, Global Public Service Law Project, Jean Monnet Center for International
and Regional Economic Law and Justice, Project on Transitional Justice.

54 China Law Center, Global Constitutionalism Seminar, Center for International Human Rights, Latin America Annual
Seminar, Middle East Legal Studies Seminar, The Honesty and Trust Project (Eastern Europe), and Yale Center for the
Study of Globalization.

55 East Asian Legal Studies Program, European Law Research Center, Human Rights Program, International Center for
Criminal Justice, Islamic Legal Studies Program, Program on International Financial Systems, International Law
Library.

56 Center for Transnational Legal Studies, London Summer Program, Asian Law and Policy Studies, Center for the
Advancement of the Rule of the Law in the Americas (CAROLA), Georgetown Human Rights Institute, Institute of
International Economic Law, Program on International Business and Economic Law.

57 Center for International and Comparative Law, Program in Refugee and Asylum Law, Program for Cambodian Law
and Development, European Legal Studies Program, Chinese Legal Studies, Japanese Legal Studies Program, South
Africa and Geneva Externship Programs.

58 The Berger International Legal Studies Program, The Clarke Center for International and Comparative Legal
Studies, The Clarke Program in East Asian Law and Culture, Mori, Hamada and Matsumoto Faculty Exchange, The
Clarke Middle East Legal Studies Fund.

59 The Global Law Workshop and Center for International and Comparative Law.

60 Center for National Security Law, Center for Oceans Law and Policy, International Human Rights Law Clinic,
Immigration Law Program.

61 Center for Contract and Economic Organization, Center for Chinese Legal Studies, Center for Japanese Legal
Studies, Center for Korean Legal Studies, European Legal Studies Center, The Center for Global Legal Problems,
Human Rights Institute, Parker School for Foreign and Comparative Law, International Moot Court.

62 Immigration Clinic, Transnational Worker Rights Clinic, Center for Human Rights, Institute for Transnational Law,
International Moot Court Competitions, Lozano Long Institute for Latin America Studies.

63 For a general analysis of the best programs in international law, see Denisse Romero, “Top Ten International Law
Schools in the U.S.A,” MACQUIL.COM GLOBAL PORTAL (Oct. 5, 2010), available at
http://www.macquil.com/articles/topintlaw.php.

64 The International and Comparative Law Quarterly, the Electronic Journal of Comparative Law, and the European
Journal of Legal Studies are prime examples of this tendency.

65 See Manuel José Cepeda-Espinosa, Judicial Activism in a Violent Context: The Origin, Role, and Impact of the
Colombian Constitutional Court, 3 WASH. U. GLOBAL STUD. L. REV. 529, 529–75, 649–91 (2004); Lynn Berat, The
Constitutional Court of South Africa and Jurisdictional Questions: In the Interest of Justice?, 3 INT’L J. CONST. L. 39
(2005); Burt Neuborne, The Supreme Court of India, 1 INT’L. J. CONST. L. 476 (2003).

66 See, for example, junio 26, 2009, Sentencia C-417 /09, M. P. Juan Carlos Henao Pérez (Col.) (freedom of speech);
Maneka Gandhi v. Union of India, AIR 1978 S.C. 597 (India) (limits to government’s restrictions to personal liberties);
Minister of Home Affairs and Another v. Fourie and Another, 2005 ZACC 19; 2006 (3) BCLR 355; 2006 (1) SA 524 (S.
Afr.) (gay rights); Lesbian and Gay Equality Project and Others v. Minister of Home Affairs and Others, 2005 ZACC
20; 2006 (3) BCLR 355; 2006 (1) SA 524 (S. Afr.) (gay rights).
67 See Corte Constitucional [C.C.] [Constitutional Court], enero 22, 2004, Sentencia T-025/04, M. P. Manuel José
Cepeda Espinosa.

68 In the Indian context, see M. H. Quraishi v. State of Bihar, A.I.R. 1958 S.C. 731; Abdul Jalil and Ors. v. State of U.P.
and Ors. on February 14, 1984, A.I.R. 1984 S.C. 882; Commissioner of Police and Ors v. Acharya J. Avadhuta and Anr.
on March 11,
2004, A.I.R. 2004 S.C. 2984. See also Gurpreet Mahajan, Indian Exceptionalism or Indian Model: Negotiating Cultural
Diversity and Minority Rights in a Democratic Nation-State, in MULTICULTURALISM IN ASIA 1–20 (Will Kymlicka and
Baogang He eds., Oxford University Press[[AQ? Publisher?]]2005).
69
In the South African context, see Soobramoney v. Minister of Health (Kwazulu-Natal) 1997 ZACC 17; 1998 (1) SA
765 (CC); 1997 (12) BCLR 1696 (CC); Government of the Republic of South Africa and Others v. Grootboom and
Others 2000 ZACC 19; 2001 (1) SA 46 (CC); 2000 (11) BCLR 1169 (CC); Minister of Health and Others v. Treatment
Action Campaign and Others (No 1) 2002 ZACC 16; 2002 (5) SA 703 (CC); 2002 (10) BCLR 1075 (CC); Khosa and
Others v. Minister of Social Development and Others, Mahlaule and Another v. Minister of Social Development 2004
ZACC 11; 2004 (6) SA 505 (CC); 2004 (6) BCLR 569 (CC).
70
See Kesavananda Bharati v. State of Kerala, 4 S.C.C. 225 (India) (1973).
71
The Colombian Constitutional Court, for example, has used the U.S. and European case law and literature on
balancing. See Corte Constitucional [C.C.] [Constitutional Court], septiembre 26, 1995, Sentencia T-425 /95, M. P.
Eduardo Vargas Muñoz; C.C., mayo 9, 1996, Sentencia T-198/96, M. P. Abelardo Gómez Restrepo; C.C., septiembre
18, 1997, Sentencia C-448/97, M. P. Alejandro Martínez Caballero; C.C., septiembre 25, 1997, Sentencia C-475/97, M.
P. Eduardo Cifuentes Muñoz; C.C., mayo 20, 1998, Sentencia SU-225/98, M. P. Eduardo Cifuentes Muñoz; C.C.,
octubre 20, 1998, Sentencia T-588/98, M. P. Eduardo Cifuentes Muñoz; C.C., diciembre 16, 1998, Sentencia T-801/98,
M. P. Eduardo Cifuentes Muñoz; C.C., octubre 6, 1999, Sentencia C-741/99, M. P. Fabio Moron Diaz; C.C., febrero 9,
2000, Sentencia C-110/00, M. P. Antonio Barrera Carbonell; C.C., marzo 29, 2000, Sentencia C-371/00, M. P. Carlos
Gaviria Díaz; C.C., abril 25, 2001, Sentencia C-648/01, M. P. Jaime Araujo Renteria; C.C., abril 10, 2004, Sentencia T-
1031/01, M. P. Rodrigo Escobar Gil; C.C., diciembre 5, 2001, Sentencia C-1287/01, Marco Gerardo Monroy Cabra;
C.C., octubre 29, 2002, Sentencia C-916/02, M. P. Manuel José Cepeda Espinosa; C.C., agosto 9, 2005, Sentencia C-
818/05, M. P. Rodrigo Escobar Gil; C.C., agosto 10, 2005, Sentencia C-822/05, M. P. Manuel José Cepeda Espinosa;
C.C., septiembre 7, 2005, Sentencia T-933/05, M. P. Rodrigo Escobar Gil; C.C., mayo 10, 2006, Sentencia C-355/06,
M. P. Jaime Araujo Rentería; C.C., marzo 21, 2007, Sentencia C-210/07, M. P. Marco Gerardo Monroy Cabra.
72
See, for example, the cases in which the Colombian Constitutional Court has used the Unconstitutional State of Affairs
doctrine. See Corte Constitucional [C.C.] [Constitutional Court], noviembre 20, 1997, Sentencia SU-599/97, M. P.
Jorge Aranga Mejía; C.C., marzo 5, 1998, Sentencia T-068/98, M. P. Alejandro Martinez Caballero; C.C., mayo 26,
1998, Sentencia SU-250/98, M. P. Alejandro Martinez Caballero; C.C., septiembre 23, 1998, Sentencia T-153/98, M. P.
Eduardo Cifuentes Muñoz; C.C., enero 22, 2004, Sentencia T-025/04, M. P. Manuel José Cepida Espinosa.
73
See, for example, the Colombian Constitutional Court cases about the vital minimum and the principle of dignity. See
Corte Constitucional [C.C.] [Constitutional Court], enero 16, 1995 Sentencia T-005/95, M. P. Eduardo Cifuentes
Muñoz; C.C., enero 23, 1995, Sentencia T-015/95, M. P. Hernando Herrera Vergara; C.C., marzo 30, 1995, Sentencia T-
144/95, M. P. Eduardo Cifuentes Muñoz; C.C., mayo 8, 1995, Sentencia T-198/95, M. P. Alejandro Martínez
Caballero; C.C., octubre 4, 1996, Sentencia T-500/96, M. P. Antonio Barrera Carbonell; C.C., junio 4, 1998, Sentencia
T-284/98, M. P. Fabio Morón; C.C., febrero 4, 1999, Sentencia SU-062/99, M. P. Vladimiro Naranjo Mesa.
74
See, for example, People’s Union for Democratic Rights v. Union of India, 3 S.C.C. 235 (India) (1982). Regarding the
Public Interest Litigation Movement in India, see generally Upendra Baxi, Taking Suffering Seriously: Social Action
Litigation in the Supreme Court of India, 1985 THIRD WORLD LEGAL STUD. 107, 107–122; (1985); K. G. Balakrishnan,
Chief Justice of India, Address on the Growth of Public Interest Litigation in India, Singapore Academy of Law,
Fifteenth Annual Lecture (Oct. 8, 2008) 1–23; R. Sudarshan, Courts and Social Transformation in India, in COURTS
AND SOCIAL TRANSFORMATION IN NEW DEMOCRACIES: AN INSTITUTIONAL VOICE FOR THE POOR 154–67 (Roberto
Gargarella, et. al., eds., Ashgate[[AQ? Publisher?]]2006).
75
See Mark Tushnet, The Possibilities of Comparative Constitutional Law, 108 YALE L. J. 1225 (1999).
76
 See James Whitman, The Neo-Romantic Turn, in COMPARATIVE LEGAL STUDIES: TRADITIONS AND TRANSITIONS 312
(Pierre Legrand and Roderick Munday, eds., Cambridge University Press[[AQ? Publisher?]]2003).
77
See Paul Kahn, Judging Judicial Review: Marbury in the Modern Era: Comparative Constitutionalism in a New Key,
101 MICH. L. REV. 2677 (2003).
78
The World Bank, “Data by Country,” available at http://data.worldbank.org/country (last accessed Feb. 12, 2012).
79
Id.
80
Id.
81
CONSTITUCIÓN POLÍTICA DE COLOMBIA [C.P.] art. 10 (Spanish is the official language of the country).
82
See U.S. Department of State, “2005 Report on International Religious Freedom: Colombia,” available at
http://www.state.gov/j/drl/rls/irf/2005/51632.htm (last accessed Feb. 12, 2012).
83
Government of India, “Census Data 2001: Religious Composition,” available at
http://censusindia.gov.in/Census_Data_2001/India_at_glance/religion.aspx (last accessed Feb. 12, 2002).
84
Statistics South Africa, “Census in Brief: Census 2001,” available at
http://www.statssa.gov.za/census01/html/C2001CensusBrief.asp at 14 (last accessed Feb. 12, 2012). The South African
Constitution recognizes eleven official languages. S. AFR. CONST. art. 6(1).
85
See U.S. Department of State, “2005 Report on International Religious Freedom: South Africa,” available at
http://www.state.gov/j/drl/rls/irf/2005/51496.htm (last accessed Feb. 12, 2012).
86
See Merryman and Pérez-Perdomo, supra note 19, at 141. [[AQ? Supra note 19?]]
87
The Law Library of Congress, “Introduction to India’s Legal System,” available at
http://www.loc.gov/law/help/india.php (last accessed Feb. 12, 2012).
88
http://ox.libguides.com/content.php?pid=167351andsid=1410025
89
See David Bilchitz, Constitutionalism, the Global South, and Economic Justice, Chapter 1, in this volume.
90
See S. AFR. CONST., Act 108 of 1996, S 10; CONSTITUCIÓN POLÍTICA DE COLOMBIA [C.P.] art. 1; INDIA
CONST. art. 21.
91
See CONSTITUCIÓN POLÍTICA DE COLOMBIA [C.P.] Title II; INDIA CONST. Part III-IV; S. AFR. CONST. Chapter II.
92
Central Intelligence Agency. Gini Index, “World Factbook,” available at https://www.cia.gov/library/publications/the-
world-factbook/fields/2172.html (last accessed Feb. 12, 2012).
93
Central Intelligence Agency, “Percentage below Poverty Line, World Factbook,” available at
https://www.cia.gov/library/publications/the-world-factbook/fields/2046.html (last accessed Feb. 12, 2012).
94
Departamento Nacional de Estadística, “Colombia: Una Nación Multicultural,” available at
http://www.dane.gov.co/files/censo2005/etnia/sys/colombia_nacion.pdf at 20 (2007) (last accessed Feb. 12, 2012).
95
See Daniel Bonilla, Introduction, in LA CONSTITUCIÓN MULTICULTURAL [The Multicultural Constitution] (Siglo del
Hombre-Universidad de los Andes- Instituto Pensar[[AQ? publisher?]]2007) (Col.).
96
See Gurpreet Mahajan, “Negotiating Cultural Diversity and Minority Rights in India,” available at
http://www.idea.int/publications/dchs/upload/dchs_vol2_sec3_4.pdf at 1.
97
See id.
98
Statistics South Africa, “Census in Brief: Census 2001,” available at
http://www.statssa.gov.za/census01/html/C2001CensusBrief.asp at 13 (last accessed Feb. 12, 2012).