1st Edition

Decolonizing Constitutionalism Beyond False or Impossible Promises

    354 Pages
    by Routledge

    354 Pages
    by Routledge

    The modern state, law, and constitution result from a legal canon that (re)produces the abyssal lines dividing the world that is validated from the world whose humanity and epistemological validity are denied. This book aims to contribute to a post-abyssal reflection on law and constitutionalism by considering the structural axes of power that are constitutive of modern law “capitalism, colonialism, and heteropatriarchy” alongside the legal plurality of the world. Is it possible to decolonize, decommodify, and depatriarchalize the constitution? The authors speak from multiple geographies, raise different questions, resort to differentiated theoretical approaches, and reveal varying levels of optimism about the possibilities of transforming constitutions. The readers are confronted with critical perspectives on the Eurocentric legal canon, as well as with the recognition of anti-capitalist, anti-colonial, and anti-patriarchal legal experiences. The horizon of this publication is the expansion of the possibilities of legal and political imagination.


    Boaventura de Sousa Santos, Sara Araújo and Orlando Aragón Andrade  


    Boaventura de Sousa Santos; Sara Araújo; Orlando Aragón Andrade  

    Introduction: The Constitution, the state, the law and the epistemologies of the South

    Part 1. The vast landscape of constitutionalisms 

    1. Issa G. Shivji 

    Do Constitutions Matter?: The dilemma of a radical lawyer 

    2. Asifa Quraishi-Landes 

    Healing a Wounded Islamic Constitutionalism: Sharia, legal pluralism, and unlearning the nation-state paradigm  

    3. Upendra Baxi 

    Nihilisms, Contradictions, and Anomie in New Constitutionalisms: A view from India 

    4. Rosalva Aída Hernandez 

    Indigenous Women: Towards a New Transformative Constitutionalism? 

    5. Sara Araújo 

    Modern Constitutionalism, Legal Pluralism  and the Waste of Experience 

    Part 2. Post-colonial Transitions: The case of South Africa 

    6. Heinz Klug  

    Legacies and Latitudes: Past, present and future in South Africa’s post-colonial legal order 

    7. Albie Sachs  

    Shared Experiences from South Africa Constitutional Court

    8. Tshepo Madlingozi 

    On Settler Colonialism and Post-Conquest Constitutionness: The decolonising constitutional Vvsion of African nationalists of Azania/South Africa  

    Part 3. The return of the abyssally excluded?: The indigenous constitutional struggles in Latin America  

    9. Salvador Schavelzon 

    Can Silence be a Constituent?: A reading of the indigenous-communitarian constitutionalism of Bolivia 

    10. Raúl Llasag

    Plurinational Constitutionalism:  Plurinationality from above and plurinationality from below  

    11. Nina Pacari 

    Transformational Constitutionalism, Interculturality and the Reform of the State: Looking through the eyes of the originary peoples 

    12. Agustín Grijalva 

    Participation and Presidentialism in the Ecuadorian Constitution of 2008  

    13. Orlando Aragón Andrade  

    Transforming Transformative Constitutionalism: Lessons from the political-legal experience of Cherán, Mexico   

    14. Boaventura de Sousa Santos   

    The Law of the Excluded: Indigenous justice, plurinationality and interculturality in Bolivia and Ecuador 



    Boaventura de Sousa Santos is Emeritus Professor of Sociology at the University of Coimbra (Portugal) and Distinguished Legal Scholar at the University of Wisconsin-Madison. He is also Director Emeritus of the Center for Social Studies at the University of Coimbra. He has written and published widely on the issues of sociology of law and the state, epistemology, intercultural democracy, social movements, postcolonialisms and global citizenship.

    Sara Araújo is a researcher at the Centre for Social Studies (CES) and invited assistant professor in sociology at the Faculty of Economics, University of Coimbra. She holds a PhD in Law, Justice and Citizenship in the 21st century and co-founded the PhD Programme in Sociology of the State, Law and Justice (CES and FEUC) that she now co-coordinates. She has researched and published on legal pluralism in Mozambique and East Timor, legal decolonization and social justice and cognitive justice in Europe.

    Orlando Aragón Andrade is a professor and researcher at the National Autonomous University of Mexico (in Morelia) where he is the coordinator of the Laboratory of Legal Anthropology and of the State. His research focuses on the study of indigenous peoples' collective rights, legal pluralism, counter hegemonic uses of law, law's decolonization, epistemologies of the South and, relevantly, the construction of a militant legal anthropology. He is also a legal advisor and accompanies several autonomy and self-government processes in Mexico, as part of the Emancipations Collective, of which he is a founding member.

    This is an important edited volume framed by the groundbreaking theoretical work of Professor Boaventura de Sousa Santos. This scholarship has set aside a singular focus on the Eurocentric view of the law and developed in its place an 'epistemology of the South,' based upon the knowledges of those excluded, appropriated, and subject to the violence of the state. The goal of this project is to expand our political imagination to allow for the emergence of alternative forms of politics in oppressed communities. The book makes available the important findings of a collaborative research project on struggles for social justice in the global South. It is based upon a cutting-edge theoretical framework which explores the potential for constitutional change outside of a state-centric approach. The volume provides essential reading for those working in the area of comparative constitutionalism and will stimulate new research and thinking for the next generation of scholars in the field.

    – Kristin Bumiller, Amherst College

    This is an important and very useful contribution to the connected subjects of democracies, social justice and political activism, human rights, law and legal orders, and power and economies across societies. It moves beyond the surface of introduction and explanation of abyssal thinking to a range of post-abyssal possibilities and applications across multiple geographies and peoples with different questions. All the authors take up the challenges of decolonization, decommodification, and ‘depatriarchalization’, and all of the authors ground their writing in the experiences and realities of peoples around the globe. Abyssal thinking proves to be a critical lens in the subject instances of each chapter, and the reader will be able to see how abyssal thinking may be extrapolated to other issues and circumstances. I think this is an outstanding book and I am excited by its publication and availability.

    – Val Napoleon, University of British Columbia

    Studying constitutions (and other topics) from the perspective of the global South is important and the Epistemologies of the South have been ignored for too long.  Its discussion of indigenous voices, especially indigenous women, and indigenous justice is one of the most important contributions of the book.  This book adds a vitally important, yet often ignored, dimension to scholarship. It is not only timely but long overdue.

    – Sumudu Atapattu, University of Wisconsin