Transformative Constitutionalism (1)

The Law and Politics-stream of the Indian European Advanced Research Network (IEARN) has conducted a fascinating and very productive first set of workshops on ‘democracy in diversity’ in the past years. Now, it sets out to organize a second series of three workshops on Transformative Constitutionalism. Here is the basic idea:

In recent years, the concept of Transformative Constitutionalism has become familiar to constitutional scholars in many jurisdictions. It is one of the rare academic concepts to have travelled beyond academic publications to find place in judicial discourse (with the South African Constitutional Court and the Indian Supreme Court having invoked it substantively) as well as constitutional scholarship. 

The concept is most commonly associated with South African constitutionalism.  Writing in 1998, the US scholar Karl Klare invoked the idea of ‘Transformative Constitutionalism’ to critique early judicial approaches to constitutional adjudication in the new 1996 constitution of South Africa. Klare defined the concept of Tranformative Constitutionalism as ‘an enterprise of inducing large-scale social change through nonviolent political processes grounded in law.’ More recently, the German scholar Michaela Hailbronner has argued that while the concept of Transformative Constitutionalism has been invoked largely in the context of constitutions and constitutionalism in the Global South, important elements of what is usually identified with the concept can be found in the constitutional experience of the Global North.  Hailbronner uses examples from Germany to illustrate that if transformative constitutionalism is viewed as “a broader emancipatory project, which attributes a key role to the state in pursuing change”, then it would fit the experiences of Northern states as well. Mutatis mutandis, the same rationale arguably applies to the European Union and the process of transforming European nation states and societies by means of legal integration into a larger constitutional polity.

Our project takes this claim seriously, and tries to probe how the concept of Transformative Constitutionalism can be understood as a broader project beyond those that have so far been identified with it, in particular to interrogate conceptions of constitutionalism in India and the EU. We believe that when viewed comparatively, the concept will be better examined and understood, and may well help facilitate a broader understanding of concepts of constitutionalism more broadly. 

The workshop will continue an earlier series of meetings between Indian and European scholars on law, politics and constitutionalism, which interrogated the concepts of democracy in India and the EU against the background of their societal diversity of these polities. We believe that this project on Transformative Constitutionalism will help us advance that larger project by focusing on contemporary issues that pose fundamental challenges to the concept of constitutionalism in our times. Part of the project’s goal will be to identify further areas where the concept of Transformative Constitutionalism can be fruitfully employed and to explore the feasibility of doing so in individual European nations and/or the EU as a whole. Beyond this comparative exercise, our goal will also be to fundamentally probe the concept and raise questions about its viability and tenability.

The approach of IEARN workshops is particular and we would like to explain it a bit:

The workshop is intended to be more of an open conversation than a classic conference. We do not expect longer written contributions – and long presentations. Instead, we would like to use the Princeton system of “tickets”. Here, participants only formulate 2-3 page long thoughts on one of the topics. These tickets are circulated and form the basis for our discussions. We will circulate a number of articles as common reading material in due time before the workshop that should provide first insights into the respective discussions on “the other side”.

Also, our methodology is not so much one of formal comparison but of “comparing notes”. We do not aim for “country reports” but want to structure our discussions more around issues. Listening in to (or sometimes irritating) the conversations of others can be not just fascinating but immensely enriching. Engaging scholars into explorative discussions and thereby providing insights into the state of art of their respective debates seems more important to us than producing concrete but perhaps rather brittle results.