**** The Significance of a Constitution for a Government**

Thomas Paine believed that a constitution is not an act of a government but of a people establishing a
government. He argued that a government without a constitution is merely power without right. In
contrast, Edmund Burke considered constitution as an assemblage of laws, institutions, and customs
derived from certain principles of reason.

**** Written Constitutions vs. Traditional View**

Paine's view of a constitution differed significantly from the older traditional definition. He believed that a
written constitution was the only kind worthy of the name, while Burke saw it as the principles and objects
of government. Paine criticized the English parliament for not having a constitution, as it was merely a
form of government without a written constitution.

**** Paine's Opinion on New Constitutions**

Paine did not mention the new American constitutions in detail but held a negative opinion of the French
one. He believed that nothing good could come from it, as it was politically false. In contrast, Burke did not
express a clear opinion on the new constitutions.

**** Bolingbroke's Definition of Constitution**

Bolingbroke, in his definition, considered a constitution as an assemblage of laws, institutions, and

customs derived from certain fixed principles of reason. He believed that a good government was one
where the administration of public affairs was wisely pursued with strict conformity to the principles and
objects of the constitution. However, Paine saw a government that adhered to a constitution as having
power without right.
** Bolingbroke's Comparison of Governments to Reason

Bolingbroke, like Plato, believed that governments should be evaluated based on their adherence to
reason. He did not assert that a government without reason was without right, but instead considered it a
bad government. Bolingbroke did not suggest that such a government could be disregarded or
overthrown without revolution.

** The Septennial Act of 1716 and Its Impact on Government

Both Bolingbroke and Paine used the example of the English Septennial Act of 1716 to illustrate an
"unconstitutional" enactment. While Paine argued that this law proved the absence of a constitution in
England, Bolingbroke saw it as a departure from reason. He acknowledged that if the patriots who fought
for annual parliaments had known that the term would be reduced to three years and then extended to
seven, they would have found it improbable.

** The Evolution of Government and the Forgotten Labors of the Revolution

Bolingbroke observed that the English government had evolved significantly since the time of the
revolution, with parliaments being extended from triennial to septennial terms. He noted that the patriots
who had worked tirelessly for annual parliaments would have been dismayed if they had known that their
efforts would be undone so quickly.

** The Acceptance of Unreasonable Governmental Changes

Despite the departure from reason represented by the Septennial Act of 1716, Bolingbroke noted that it
had become accepted by the populace in less than twenty years. This acceptance, he implied, was a
cause for concern, as it suggested a willingness to tolerate unreasonable changes in government.

Second pdf
Summary
Postcolonialism is a complex continent with contested conceptions, particularly when the discourse of
constitutionalism and human rights comes into play. Constitutionalism provides structures, forms, and
apparatuses of governance and legitimation of power, but it also offers contested sites for ideas and
practices concerning justice, rights, development, and individual autonomy. The evolution of modern
constitutionalism is a narrative of growth of asymmetries in domination and resistance. Colonial/imperial
power provides scripts for governance, but it is not a stranger to the idea of fundamental rights of the
people. Colonial governance may involve separation of powers or decentralization of power, but neither is
a mechanism for superior protection of peoples' rights against bad governance. Colonial legal cultures did
affect forms of constitutions, with civil law and common law traditions making legible texts structuring
governance apparatuses. The Cold War also influenced constitutionalism formation, with differences in
rights in private property, political representation, adjudication autonomy, and citizens' duties.

Postcolonial constitutions are not a coherent public place determined by any single organizing principle
but rather a plurality of spheres, arenas, and identities. These constitutions are shaped by the struggles
for decolonization, which often involve militant peoples' movements and colonial state repression. The
primary organizing principle of postcolonial constitutions is natural rights, claims to self-determination not
warranted by imperial legality. Mohandas Gandhi and Nelson Mandela initiated the historic practice of this
right in the early 20th century.

The practices of the human right to self-determination were conditioned by diverse patterns of
colonization. At one end of the spectrum, there was metropolitan domination in Mozambique, where laws
were dominated by Portuguese laws and legal officers. At the other end, colonies like India recognized
indigenous legal traditions and created hybrid formations known as Anglo-Hindu and Anglo-Muslim law.

The diverse interests of the colonizing elite in India resulted in different results. Colonial India became the
arena of Benthamite legislative programs, with the metropolitan English legal culture pioneering the
codification of civil and criminal law in India. This generated an increasingly sophisticated Indian legal
profession that dominated both the nationalist movement and the making of the Indian Constitution.
In the middle ranges of the colonial spectrum lies the example of "settler colonialism" in many parts of
Africa, where colonial regimes invented various devices of governance, such as the institution of
chieftanship.
Explanation
(** Constitutionalism and its Contested Sites

The text discusses the complexity of constitutionalism in decolonized societies, particularly when it comes
to ideas and practices concerning justice, rights, development, and individual associational autonomy.
Constitutionalism is not just about governance; it also provides contested sites for these concepts. The
history of constitutionalism's evolution reveals the growth of asymmetries in domination and resistance.

** Colonialism and Constitutionalism: Strangers

Colonial/imperial power provides scripts only for governance and is a stranger to the idea of fundamental
rights of the people. Any interrogation of colonial/imperial power is considered subversive, even
treasonous. Notions of "justice" and "development" in colonial law formations are paternalistic at best and
accessories to imperial domination. Insurrection against colonial rule may result in incipient
constitutionalism, but it is used primarily as a tool for governance, not resistance.

** Colonial Legal Cultures and Constitution Making

The text explores how colonial legal cultures influenced constitution making. For example, the civil law
and common law traditions render the texts structuring the apparatuses of governance legible. This
contrast can be studied through the ways concentrations of supreme executive power are structured,
such as in the Imperial Presidency in many African countries, or the adjudicatory powers.

** Cold War and Its Impact on Constitutionalism in Decolonized Societies

The text also discusses how the context of the Cold War generated an antithetic discourse between
liberal bourgeois and revolutionary socialist constitutionalism. These differences proved crucial for Third
World practices of constitution making. The former venerates rights in private property, while the latter
celebrates state ownership of all property, and political representation in liberal constitutionalism is based
on individual ownership of property.)
** Differences in Property Rights and State Ownership

The text contrasts two forms of constitutionalism: liberal and socialist. In liberal constitutionalism, there is
a strong emphasis on individual rights in private property. This means that individuals have the freedom to
own and control their property without interference from the state. In contrast, socialist constitutionalism
celebrates state ownership of all property. This is based on the belief that the state represents the
interests of the workers, peasants, and masses, and that collective ownership of property is necessary for
the greater good.

** Political Representation and Class Domination

Political representation also differs between liberal and socialist constitutionalism. In liberal
constitutionalism, representation is a function of class domination, meaning that those with more power
and wealth have more influence over the political process. In socialist constitutionalism, however, the
"state" is endowed through the Party to represent the interests of the working class and other
marginalized groups.

** Adjudication and its Role

Another significant difference between the two forms of constitutionalism is the role of adjudication. In
liberal constitutionalism, adjudication is relatively autonomous, meaning that the judiciary has the power
to interpret the law independently of political considerations. In socialist constitutionalism, adjudication is
tied to the Party and the State, and it plays a markedly pedagogic role in constructing the new socialist
human person.

** Emphasis on Fundamental Rights and Duties

Lastly, the text discusses the emphasis on fundamental rights and duties in each form of
constitutionalism. Liberal constitutionalism foregrounds individual fundamental rights, while socialist
constitutionalism emphasizes fundamental duties of citizens. This has significant implications for the
structuring of society, with liberal constitutionalism leading to a focus on individual freedoms and socialist
constitutionalism leading to a focus on collective responsibility.

The text also mentions the profound implications of these differences on the rule of law, human rights,
and imperial hegemony in decolonized societies, with examples of the militarization of the state in ex-
colonial societies and the manifestation of microfascism in the form of McCarthyism, vicious forms of
racism, and patriarchy in capitalist societies. The text also mentions the giantomachy between the two
superpowers during the Cold War era and its impact on human rights in decolonized societies.

1. Plurality of Spheres in Postcolonial Constitutionalisms: The postcolonial world cannot be viewed as a

single homogeneous entity. Instead, it comprises various spheres and arenas shaped by the struggles for
decolonization. Postcolonial constitutions carry their unique birthmarks, although they are founded on the
principle of natural rights and self-determination.

2. Diverse Colonial Legal Systems: The legal systems in the postcolonial world were significantly
influenced by the methods of colonization. At one end of the spectrum, there was complete metropolitan
domination, as seen in Mozambique, where Portuguese laws were imposed, and no local legal education
existed. Conversely, in colonies like India, there was recognition of indigenous legal traditions, leading to
the development of hybrid legal systems.

3. Impact of Elites on Postcolonial Legal Systems: The interests of the colonizing elite played a significant
role in shaping the legal systems in the postcolonial world. In Mozambique, the laws were 'shipped out'
from Portugal, while in India, the colonial elite introduced Benthamite legislative programs, leading to the
codification of civil and criminal law. These differences resulted in the development of distinct legal
professions and constitutional structures.

4. Role of Natural Rights and Self-Determination: The concept of natural rights and the right to self-
determination were essential in shaping postcolonial constitutionalisms. Figures like Mohandas Gandhi
and Nelson Mandela championed this cause, leading to the creation of new institutional facts that
challenged the brutality of power and domination. Despite the diverse patterns of colonization, these
principles provided a foundation for the emergence of unique constitutional structures in the postcolonial
world.
1. Settler Colonialism in Africa: The concept of settler colonialism refers to the colonial regimes
established in Africa, which fell between the extremes of direct rule and indirect rule. In these regions,
European settlers established a presence and exerted significant control over the indigenous population
and their laws.

2. Invention of Chieftainships: One of the devices used by colonial regimes to govern was the institution of
chieftainships. This invention was the result of negotiations between colonial administrators and
indigenous elites, allowing colonial powers to maintain order and exert control while appearing to uphold
local customs.

3. Postcolonial Implications: The impact of colonial rule on postcolonial Africa is complex and varied. The
term "postcolonial" can be reifying, as it oversimplifies the diverse colonial contexts and struggles for self-
determination. It's essential to recognize that the term functions as a tool for organizing memory and
forgetting, which can be utilized for political mobilization.
4. Negotiations of Interest: The negotiations between colonial administrators and indigenous elites were
complex and contradictory. While the invention of chieftainships served the interests of both parties, it
also created long-term consequences for the postcolonial African condition. Understanding these
negotiations helps us recognize the nuanced nature of colonial rule and its impact on contemporary
African polities.
Continuity
Summary
Postcolonial law reflects both breaks and continuities, with a significant continuity in the affirmation and
negation of self-determination. The success of decolonization often leads to the closure of the new nation-
state, resulting in the paradox of "nationalism without nation." Postcolonial legality is rooted in the
dialectics of repression and insurgency, continuing colonial laws' repressive legacies through security
legislations. These laws often equate suspicion with proof of guilt, allowing dragnet arrests, indefinite
incarceration, custodial torture, and organized disappearances. The colonial Official Secrets Acts convert
conscientious citizens into spies, converting them into spies. Despite these challenges, the postcolonial
state lives in fear and trembling, with its Constitution providing means of its own demise through the
power to proclaim a state of emergency. These proclamations often aid the corrupt sovereign,
suppressing political dissent through extrajudicial killings and capital punishment.
Explanation
** The Paradox of Nationalism and Self-Determination in Postcolonial Law

The decolonization process brought about the affirmation and negation of self-determination. While new
nation-states were formed, they simultaneously consolidated colonial boundaries, leading to the paradox
of "nationalism without nation." This paradox meant that many groups whose struggles against
colonialism differed from those who gained power felt disenfranchised and saw their new nation-states as
neocolonial.

** Repression and Insurgency in Postcolonial Legality

Postcolonial legality is situated in the dialectics of repression and insurgency. Colonial laws' repressive
legacies were continued and even innovated through security legislations. These laws permitted dragnet
arrests, indefinite incarceration, custodial torture, and "disappearances" of detainees. The jurisdiction of
suspicion allowed for the conversion of conscientious citizens into spies, and entering proscribed places
was considered an act of espionage.

** The Fear and Trembling of the Postcolonial State

The postcolonial state lives in fear and trembling, requiring the power to declare a state of emergency to
preserve itself. However, these emergency powers were not always used to protect the constitutional
emergences from external aggression or armed rebellion. Instead, they were often used to muzzle
political dissent, leading to extrajudicial killings and even taking the form of capital punishment.

** The Extraordinary Politics of "Constitutionalized" Cruelty

Ken Saro Wiwa's case at the turn of the century symbolizes the extraordinary politics of
"constitutionalized" cruelty. Despite the repressive and often cruel measures taken by postcolonial states,
they continued to operate within the framework of their constitutions. This created a unique form of
political violence that was both constitutional and brutal.

Discontinuity
Postcolonial constitutions are a significant departure from the traditional Western constitutional models,
as they are constructed as moral autobiographies of new nations, disinvesting the colonial past. These
constitutions consist of two genres: governance and justice texts. The social justice texts are slender
compared to governance texts, but they are constitutionally anchored in contradictions. This contrasts
with the original American constitution and many Western counterparts. Postcolonial legality provides a
register of creativity within the framework of mimesis, which reproduces governance texts with a range of
variations. This creativity illuminates contradictions of transition, not just rites of passage. The thesis that
postcolonial constitutions are exemplars of "catachreis" ignores the historical specificity of anticolonial
struggles, which innovate new forms of constitutionalism. Some of these forms provide early examples of
constitution-making through widespread popular participation, deferring to a logic of government by
consent. The contribution of constitutionally authored postcolonial legality lies in the mutation of various
norms and doctrines that significantly influence the Western/Northern constitutional imagination and
praxis.
Explanation
** Postcolonial Constitutions as Moral Autobiographies and Promises of a New Future

Postcolonial constitutions serve as moral autobiographies for new nations, disinvesting from the colonial
past and promising a new future. They can be categorized into two genres: texts of governance and texts
of justice. Although social justice texts are less prevalent than texts of governance, postcolonial legality is
characterized by a constitutional contradiction between governance and justice. This contradiction is not
typical of Western constitutions.

** Mimesis and Creativity within the Framework of Postcolonial Constitutionalism

Mimesis, or the reproduction of texts of governance, is a significant aspect of postcolonial

constitutionalism. Although it often deploys the antiliberal potential of Western constitutional genres,
creativity also exists in human rights and social justice constitutional texts. These texts illuminate
contradictions of transition rather than simply serving as rites of passage.

** The Epistemic Capability of Ex-colonial Subjects and Anticolonial Struggles

The idea that postcolonial constitutions are "catachreis," or concept-metaphors without historically
adequate referents, negates the epistemic capability of the ex-colonial subject to form languages of rights
and justice. This perspective also ignores the historical specificity of anticolonial struggles, which innovate
new forms of constitutionalism. Examples of these new forms include constitution-making through
widespread popular participation in countries such as South Africa, Namibia, and Eritrea.

** The Mutation of Norms and Doctrines in Postcolonial Constitutionalism

Postcolonial constitutional legality contributes to the mutation of norms and doctrines in the Western
constitutional imagination and praxis. This mutation is evident in forms of discontinuity, such as the
adoption of military constitutionalism in Africa and the emergence of new forms of constitutionalism
through popular participation. These developments challenge the traditional Western constitutional model
and demonstrate the creativity and adaptability of postcolonial constitutionalism.
Nation of human rights
** Extension of Human Rights Beyond the State

The text discusses the transformation of human rights notions in countries like India, where the
Constitution extends these rights beyond the state into civil society. This extension led to the outlawing of
practices such as untouchability, forced labor, and human trafficking.

** Empowerment of Marginalized Communities

In India, the Constitution has empowered marginalized communities like the scheduled castes and
scheduled tribes through legislative reservations. These reservations include a significant number of
seats in Parliament and state legislatures, as well as quotas in education and employment. However,
quotas should not exceed a 50 percent limit, and they exclude groups that have already achieved
economic and social well-being.

** Affirmative Action and Inequality

Affirmative action programs are abundant in various forms of governance and justice, as seen in
Malaysia, where bhoomiputras enjoy benefits denied to local Chinese and Indian Malaysian citizens. In
Sri Lanka, efforts are underway to end a civil war and find a balance of equity between the Sinhalese and
Tamils, presenting similar challenges in severely divided societies.

** The Evolution of Affirmative Action and Liberal Equality

The text also touches upon the evolution of affirmative action as an aspect of liberal equality. The
American Supreme Court's decisions, such as Brown v. Board of Education, have presented manifold
narratives that go beyond political labor. Overall, affirmative action continues to be a significant topic in
discussions surrounding human rights and equality.
State neutrality
** State Neutrality and Constitutional Secularism in India

The text discusses how constitutional doctrines regarding state neutrality have evolved in the context of
postcolonial India. The Indian Constitution recognizes the state's role in promoting collective moral good,
which includes regulating rights to conscience and religion based on public health, order, and morality.
However, determining whose morality is valid for regulating these rights has been a contentious issue,
particularly for devout Muslims, Hindus, and other religious communities regarding issues like gender
equality, temple entry, and religious practices.

** Aspiration Constitutional Enunciations and Identity Politics

When political issues intersect with religious traditions in a multireligious society like India, the state turns
to aspirational constitutional enunciations, such as the Directive Principles of State Policy and the Charter
of Fundamental Duties of Citizens, which are not judicially enforceable. These provisions create critical
social spaces for identity politics by introducing dissonance in civil society and the state and enable
discourses of empowerment through ideals like respecting the composite culture of India and developing
a scientific temper.

** Constitutional Duties and Human Rights

The text notes that while the discourse on fundamental duties of citizens is not always people-friendly, it
can also provide legitimation for human rights and empowerment discourses. The Indian Constitution's
fundamental duties, such as respecting the ideals of the freedom movement and renouncing practices
derogatory of women, draw legitimation from the Constitution itself and can enable discourses of
empowerment.

** Challenges and Controversies of Constitutional Secularism

The text also acknowledges the challenges and controversies surrounding constitutional secularism in
India. The use of constitutional provisions to restrict religious practices and legislate social reforms has
been a source of tension and controversy, particularly for religious communities who feel that their
traditions are being undermined. The text mentions examples of this, such as the controversy surrounding
the Uniform Civil Code and legislative measures restricting religious practices.
Property relations
** Property Relations and Colonialism

The text discusses the central problem of property relations redefinition in Third World Constitutionalism,
from the first to the third generation. The diversity of colonization patterns and national resistance
movements led to divergent narratives in postcolonial legality. In some cases, the bourgeoisie who
triumphantly participated in national movements embodied fundamental rights against expropriation,
which hindered the transformation of unequal agrarian relations.

** Federalism and Agrarian Reforms

The text explains that federalism's prevalence gives the power to legislate and implement agrarian
reforms to the state or province instead of the national government. The combination of the fundamental
right to property and the federal principle creates a juridical maze, complicating all prospects of
transforming deeply unequal property relations.

** Political Enfranchisement and Agrarian Movements

Unlike First World constitutionalism, most postcolonial societies were born with instant political
enfranchisement, resulting in significant agrarian movements, particularly those advocating for the rural
poor. Postcolonial constitutionalism offers a register of state formative practices focused on redistribution
and property relations.

** Differences in Postcolonial Constitutionalism and Property Relations

The text highlights the historical differences in property relations and constitutionalism in various
postcolonial societies. For instance, socialist constitutions like Mozambique's differ historically from
countries like South Africa and Zimbabwe, where entrenched constitutional provisions protect the
entitlements of White settlers, hindering agrarian reforms. Additionally, different systems of property
relations constructed on customary law remain obstinate in some regions. The Indian experiment in
guarded agrarian reforms successfully abolished the historic zamindar system but unevenly protects
tenancy and agrarian land ceilings.
** Militancy of Subaltern Movements and Raison d'État

The militancy of subaltern movements for agrarian reforms plays a significant role in comparative
postcolonial constitutionalism. These movements' demands for reforms often reinforce the state's raison
d'état, justifying the excessive use of violence. For instance, the state's response to the Naxalite
movement in India is an example of this phenomenon, as the state justifies its reign of terror as the rule of
law.

** Worse Practices of Agrarian Serfdom and Structural Violence

Despite efforts to move away from the worst practices of agrarian serfdom, they persist in various forms.
Debt bondage, payment of wages in kind (often narcotics), unfree labor, gender-based wage
differentiation, unconscionable forms of child labor, and trafficking in women are just some of the ways
the dominant landowning classes continue to perpetuate violence against the most vulnerable.

** Regulatory Capture and Co-optation

The regulatory capture becomes versatile in postcolonial constitutionalism, not just in the making of
legislative policies and law reforms, but also in the systematic co-optation of the land revenue, local
police, adjudication, learned professions, and mass media. This co-optation undermines the quest for
equity in property relations and poses challenges to social movements and human rights.

** Postcolonial Constitutional Texts and Globalization

Postcolonial constitutional texts could not have anticipated the context of globalization. Constitutions are
now faced with the challenge of adjusting to the "universal" in the global context. The gains of social
movements, wherever considerable, are now threatened by the might of multinational corporations and
foreign direct investment. The voracious appetite of multinationals devours prime agricultural lands,
forests, and environments, posing a different order of challenges to social activism and human rights
movements.
Judicial activism
** Judicial Activism and the Power of the Indian Supreme Court

The text discusses how judicial activism has made the Indian Supreme Court a powerful ally for the
people, contributing to social movements and redemocratization. The Court's unusual role in judicial
review was established in the 1970s, declaring that Parliament's power to amend the Constitution is
subject to judicial review. This doctrine has been applied to invalidate several amendments and has even
influenced neighboring countries.

** Social Action Litigation (SAL) in India

The text introduces SAL as a process of informalization and democratization of access to appellate
courts, including the Supreme Court of India. Through the inventing of an epistolary jurisdiction, the courts
have expanded their standing and determined facts by sociolegal commissions of enquiry and orders.
SAL has been used to combat various social issues, such as governmental lawlessness, environmental
degradation, and gender inequality.

** Essential Features of the Indian Constitution and Judicial Review

The text mentions that the Indian Supreme Court has enunciated essential features of the Indian
Constitution, including the rule of law, republican form of government, federalism, democracy, socialism,
secularism, and the power of judicial review. These essential features were left for the Justices to
enunciate from time to time, and the Court has applied this doctrine to invalidate several amendments
and even consider the deletion of the right to property.

** Impact and Criticisms of Judicial Activism in India

The text acknowledges that judicial activism has been both influential and controversial. While it has
enabled the creation of new fundamental rights and combatted various social issues, it has also been
criticized as usurpation when the courts take over the day-to-day administration of cases. However, SAL
has survived these attacks and continues to contribute to the redemocratization of the Indian polity
through ongoing social conversation between human rights activists and wielders of adjudicatory power.