Colombia’s 1991 constitution is seen by many as the threshold of an intense political process that has arrived at a set of revolutions in Bolivia, Ecuador, Venezuela and now, maybe, Peru. Furthermore, in the midst of a horrible conflict, Mexico is looking to a Colombian-style constitutional assembly to overcome the bloodshed its people have suffered. I believe such attitudes are misguided, and that it is in the interest of orthodox neocolonial powers to enforce the constitutional fable.
In the United States, society, state and constitution were born in a singular and indivisible event and as such, they’re stuck to each other like flesh to the bone; the history of the US is the history of its constitution. Discourses on emancipation or recognition, such as the various civil rights movements, are produced as legal discourses that are settled by the “justices” of a supreme court. It is this exported model that has insured a tight post-colonial wedlock on the Latin-American legal tradition.
The question is thus: can a constitution immersed in the process of capitalist globalisation transform a political society? Can it become the basis for resistance and emancipation? The question is directed to a generation that has placed all its trust in the law as the key tool to accomplish social justice and democracy, and as a matter of fact hold in their hands impressive achievements to continue to trust the law as a means towards political transformation.
Can a constitution alter the gigantic balances of world power and the interests that determine them? What is the relationship between this casino form of capitalism – globalised, unregulated and predatory – with the local struggles to obtain social justice? Can a constitution reconfigure a legal system of planetary dimensions, such as the one determined by the World Health Organisation or the security council of the UN?
We are dealing with diverging discourses. On one side, there is a massive and sincere effort to pin down the principles of equality and social justice, using a combination of legal strategies and street activism. But this effort clashes against a world that is a minefield of individualist ambition and greed, where these struggles already have been stowed below the “good book” by dense and ruthless enterprises, destroyed by an incommensurable financial system that defines the legal quarters as its own appendix.
The aforementioned divide the world into three layers. At the top, a hedonist and superficial coat: the “mega-alphas” entrenched in sealed off paradises, immune and indifferent, the true owners of the world. Then, adhered to it, a mortgage-paying middle class galvanised with desire, which believes in the promised land of capitalism. And at the bottom, the thickest layer: the modern-day slave and refugee, deprived of anything and everything, locked up in an immense sweatshop blocked by walls and fences. They are the nomads of eternity, existing in utter silence and violence, on whose misery rests the final proof of the triumph of capitalism and liberalism.
What chances does a classically liberal constitution, built with scraps of promises of a better world, stand in such a universe? Can residual and singular applications of social rights be an antidote to a hegemony, where everything can be bought and sold? A world where, for example, the Chinese government (the biggest corporation in the world) can buy almost all of Madagascar – another nation state – in order to exploit its biological resources?
At the end, how many writs, class actions, legal procedures or injunctions are required to put a halt to capitalism? Undoubtedly, the struggle for social justice must continue; the question, however, is whether national constitutions have the ability to achieve it.
Ricardo Sanin Restrepo is professor of legal theory at the Universidad Javeriana Bogota-Colombia
Originally published here.