David Bilchitz Creatingthe S

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David Bilchitz, Creating the Space in between: Towards
Conception of Equal Exchanges in the Legal Academia of
Global South and North, 16 Yale Hum. Rts. & Dev. L.J.
88 (2013)
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Creating the Space "In Between": Towards a
Conception of Equal Exchanges in the Legal
Academia of the Global South and North
By David Bilchitz*
I. INTRODUCTION
Domestic law appears to be a social phenomenon that is essentially local

in nature. It emerges from a particular political community and is the body
of rules that govern interactions between individuals in that society and
trigger the coercive powers of the state and courts. Law, too, as many phi-
losophers recognize, has a normative dimension, whereby it is legitimate to
enforce the law.' That legitimacy comes either from a law's emergence from
sources that have authority in a particular political community or because
its substantive content is recognized as just.2 Either way, law is strongly
rooted in the institutions and temperament of a particular society. It would
thus seem logical to expect that the production and development of legal
knowledge would be centered around the rules, doctrines, and philoso-
phies internal to a specific political community.
Yet, increasingly, the practices surrounding legal knowledge are moving
beyond the local or the boundaries of any particular space. We see, for in-
stance, the proliferation of scholarship in the fields of comparative constitu-
* Professor, Department of Public Law, University of Johannesburg; Director of the South

African Institute for Advanced Constitutional, Public, Human Rights and International Law. I
am grateful to Daniel Bonilla for inviting me to participate in the stimulating symposium he
organized at Yale University in April 2012 titled "Between Equality and Subordination: the
Politics of Legal Knowledge in Global North-South Academic Exchange" as well as partici-
pants in the seminar for a vigorous day of discussion. I am also indebted to excellent com-
ments provided by the editors of this journal.
1. I here remain agnostic between positivist and natural law accounts of the nature of law. H.
L. A. HARTTHE CONCEPT OF LAW 18-25 (1961) recognizes the insufficiency of an account of law
(such as that of Austin) based on the notion of coercion. JURGEN HABERMAS, BETWEEN FACTS
AND NORMS 28-34 (William Rehg trans., 1996) sees law as being both a phenomenon rooted in
legitimate social processes but also having a substantive moral claim to legitimacy.
2. I here seek to remain agnostic between positivism and natural law perspectives on the na-
ture of law.
59
60 YALE HUMAN RIGHTS & DEVELOPMENT L.J. Symposium
tional and human rights law.3 This academic enterprise is not simply con-
fined to scholars who find it interesting to engage in comparative work-
indeed, increasingly, to be a local scholar of note in many countries requires
familiarity with the law of other localities. Constitutional courts in many
countries around the world regularly refer to the decisions of courts in oth-
er countries and appear to see themselves as part of a conversation that
traverses sovereign boundaries. 4
We may be witnessing the very globalization of law itself. It is surely ra-
re today for a diligent legislature to pass a law without considering what
has been done in other places. Courts may argue that local values demand a
particular legal solution, but often do so mindful of the alternative possibili-
ties that exist. In light of these developments, law schools, too, need to ex-
pand knowledge beyond the domains of their own localities and encourage
relationships and exchanges with those of different cultures and tempera-
ments.
In and of itself, these shifts in the development of legal knowledge be-
yond the local could arguably produce important instrumental benefits.
Academics and policy-makers are made aware of how things are done in
other places and can avoid undesirable consequences for their policies by
considering the experience of others. Exposure to alternative political com-
munities avoids a certain parochialism. There is also an increase in the
recognition of diverse values and approaches to solving legal problems as
well as an understanding of the universal similarity of certain needs and
desires.
Yet, at the same time, there are also many problems with this movement
towards an increasing internationalization of law. The idea of exchange
seems un-problematic when it is founded upon a substratum of equality
and mutuality. Yet, the global arena is characterized by severe inequalities
of resources, power and influence. Indeed, exchange in such a context can
be a code word for domination by those who are stronger. Such domination
need not be overt but can occur through the control more powerful forces
have over the production, dissemination and evaluation of legal
knowledge. Instead of leading to improvements of the local society
through dialogue and discovery, the globalization of legal knowledge could
instead result in a devaluation of many local innovations and contribute to
the hegemony of those who have the power to shape legal discourse.
This Article will focus on the dynamics of legal exchanges and relation-
ships between law schools and academics in the global North and South in
3. See, e.g., THE MIGRATION OF CONSTITUTIONAL IDEAS (Sujit Choudhry ed., 2006);
INTERPRETING CONSTITUTIONS: A COMPARATIVE STUDY (Jeffrey Goldsworthy ed., 2006);
COMPARATIVE CONSTITUTIONAL LAW 2d ed (Vicki C. Jackson & Mark Tushnet eds., 2006).
4. Many courts around the world refer to decisions in other jurisdictions. A notable example is
the South African Constitutional Court. See, e.g., Fose v. Minister of Safety and Security 1997
(3) SA 836 (CC).
2013 Creatingthe Space "In Between 61
a world characterized by severe inequality. It will seek to conceptualize

how such exchanges can be valuable despite and possibly because of these
disparities in power. Though the inequalities track multiple dimensions, I
shall work with the recent discourse centered around the divide between
the Global North and Global South. In Part II, I shall consider the divergent
conditions relating to the production of knowledge that exist between the
Global North and South. These conditions, I will argue, create certain hier-
archies that generally privilege the North and result in its products being
regarded as "more valuable" or being the implicit standard against which
knowledge from the South is to be evaluated. These assumptions affect any
exchange that can take place and lead to three problems I identify, namely
assimilation, dependence, and inferiority. These problems provide a chal-
lenge to the very desirability of academic exchange. Yet we live in a world
in which such exchanges cannot be avoided. In the following sections of
this Article, I explore the different dimensions of value involved in such ex-
changes and the conditions under which they are valuable.
In Part III, I deal with the argument that exchanges between law schools
in the global North and South have a number of important instrumental
benefits for each of the parties. I consider briefly justice-based rationales,
truth-based rationales and skills-based rationales for such programs. Each
of these rationales in some sense is based on the assumption that the value
in exchanges rests upon the connection between individuals and institu-
tions with different experiences and understandings. In light of this as-
sumption, I argue that the unequal valuation of the contributions of the
Global South to any such exchange undermines the very instrumental bene-
fits they promise. I make this argument by considering a number of fea-
tures or conditions prevalent in the "South" relating to the conditions of
knowledge production that are often regarded as being "inferior" to those
of the North. This evaluation I contend is mistaken: the epistemological
conditions prevalent in the South are often different to those in the North,
but can offer distinctive benefits. The very instrumental benefits that can be
obtained from any exchange will often arise from these differences and,
thus, there is a need explicitly to challenge what I term an "inequality of
valuations" even if an inequality of resources persists.
Part IV adopts a more radical approach and seeks to challenge the very
idea (which some may see as "Northern" in nature) that exchanges are val-
uable simply because they advance the self-interest of each of the parties.
This assumption is part of the problem that entrenches inequality, and thus
a different model is necessary. In outlining an alternative vision for such
exchanges, I draw on some of the key ideas of African moral theory and
particularly the notion of ubuntu. These ideas ultimately place great empha-
sis and value on the relationships that develop for their own sake. Good re-
lationships challenge individuals to shift their understanding of community
whilst retaining their sense of self and distinctness. They also immediately
place individuals in a stance of moral obligation towards one another. An

ethics of exchange rooted in ubuntu thus challenges the very instrumentali-
ty and self-interest that underlies relationships of domination. It seeks to re-
conceptualize what an alternative trajectory for broadening and advancing
legal knowledge in an atmosphere of mutuality might look like through fo-
cusing on the transformative power of the space "in between" persons -the
space of ethical relationships.
II. THE PROBLEM: INEQUALITY AND ITS EFFECTS ON EXCHANGES BETWEEN

GLOBAL SOUTH AND NORTH
The terminology of Global North and South has been used since the
1970s "as shorthand for a complex of inequalities and dependencies: indus-
trialized versus raw material producing countries, rich versus poor, those
with military power versus those without, high technology versus low
technology, and so on." 5 Grovogui neatly describes the Global South as a
"symbolic designation meant to capture the semblance of cohesion that
emerged when former colonial entities engaged in political projects of de-
colonization and moved towards the realisation of a postcolonial interna-
tional order." 6 Central to the discourse surrounding the Global South is
thus a "disavowal of institutional and cultural practices associated with co-
lonialism and imperialism."7 Countries in the Global South thus are not so
much part of any geographically discrete entity but rather "are, broadly,
those historically conquered or controlled by modern imperial powers,
leaving a continual legacy of poverty, economic exploitation and depend-
ence."8 Southern countries, as a result of these conditions, also face high
levels of political instability. In contrast, Northern countries are relatively
wealthy, tend to be politically stable and have massive military capabilities.
The distinction between the Global North and South thus corresponds
to an axis of inequality in the world.9 The inequalities between the Global
North and South do not, however, only relate to economic and political
matters; in this Article, I consider the manner in which the inequalities
translate into disparities related to the production, recognition and status of
knowledge emanating from both domains.
5. Helen Meekosha, Decolonising Disability: Thinking and Acting Globally, 26 DISABILITY AND
SOCIETY 667, 669 (2011). On the history and usage of the term, see also Arif Dirlik, Global South:
Predicamentand Promise, 1 THE GLOBAL SOUTH 12, 13-15 (2007).
6. Siba Grovogui, A Revolution Nonetheless: The Global South in InternationalRelations, 5 THE
GLOBAL SOUTH 175, 176 (2011).
7. Id. at 177.
8. Meekosha, supra note 5, at 669.
9. Alfred J. L6pez, Introduction: The (Post)global South, 1 THE GLOBAL SOUTH 1, 3 (2007) argues
that the global South itself essentially involves a type of identity which "marks, even cele-
brates, the mutual recognition among the world's subalterns of their shared condition at the
margins of the brave new neoliberal world of globalisation."
2013 Creatingthe Space "In Between" 63
A. Inequality between the North and South in the Production

of Knowledge
In her important study on the Global North/South division and

knowledge in the humanities, Raewyn Connell, identifies what she terms
the Northern bias of academic theories. 0 Connell examines the way in
which disciplines such as sociology and philosophy reflect this bias and
identifies four factors which help us to understand its nature and under-
pinnings. First, she argues that authors often make claims to the universal
validity of their theories, but fail to make transparent their locatedness in
the North or reflect upon the manner in which their theories might be par-
ticular to the North." Parvati Raghuram and Clare Madge agree with Con-
nell that "[t]he often unstated claim to universality is one of the key prob-
lems of how many northern academics currently theorize."12 Southern
theorists lack this luxury, as they must always append a qualifier that iden-
tifies their Southern origins-i.e., "African philosophy" or "Latin American
dependency theory"-and thus always automatically exhibit a stronger
sense of location than theorists in the North.13 This has the effect of render-
ing Southern theories more particular to their localities, whereas Northern
theorists assert universal applicability. The stronger academic communities
in the North also often reflect upon and write about theorists in the South
in the language of the North, which in turn helps to solidify the Northern
bias as universal.14
Second, Connell explains that the academic literature in a particular
field usually seeks to deal with problems and weaknesses in prior theory. 5
Yet, many of the past theories are themselves creations of the North with
Southern voices only joining the discussion more recently. In a sense, the
prior theories often set the terms of the discussion, and construct the worlds
they engage with as "read through the metropole." 6 They also set the
agenda for future academic research. This standard method employed in
academic life thus, in some sense, privileges the theory of the North.
Third, the main Northern theorists and bodies of literature often exclude
many forms of thinking from their ambit. "At times, texts of general theory
include exotic items from the non-metropolitan world, but they do not in-
troduce ideas from the periphery that have to be considered as a part of the
10. Her seminal study is contained in the book RAEWYN CONNELL, SOUTHERN THEORY (2007).
11. Id. at 44.
12. Parvati Raghuram & Clare Madge, Towards a Method for PostcolonialDevelopment Geography?
Possibilitiesand Challenges, 27 SINGAPORE J. TROPICAL GEOGRAPHY 270, 280 (2006).
13. CONNELL, supra note 10, provides examples of how this operates in particular in sociology
and globalization theory in chapters 2 and 3.
14. Id. at 44-45.
15. Id. at 45.
16. Id. The language of the metropole and the periphery largely corresponds to the distinction
between the Global North and South.
dialogue of theory."' 7 Importantly, here, the Global North is conceptualized

as the source and creator of theory whilst the South simply applies what
has already been developed in the North in its own context.
Finally, social theory connects with empirical knowledge; research
agendas are largely driven by the concerns of the North, however, and em-
pirical knowledge is primarily derived from the North. Connell illustrates
these points by considering some of the work that has become part of
"globalisation theory." 8 She describes the problem: "[t]his body of writing,
while insisting on the global scope of social processes and the irreversible
interplay of cultures, almost never cites non-metropolitan thinkers and al-
most never builds on social theory formulated outside the metropole." 9
Connell's work is focused on the humanities, but many of the processes
she identifies that entrench inequality are evident in legal scholarship too. 20
These dynamics also fundamentally affect the character of exchanges that
can take place between legal actors in the Global North and South. Daniel
Bonilla has carefully identified some of the inequalities that exist in legal
exchanges in his paper on the relationship between legal clinics in the
Global South and North. 21 He highlights three specific assumptions under-
lying relationships between law schools in these two regions, which accord
greater value to what emerges from the North. First, he speaks of the "Pro-
duction Well," which essentially sees the production of the "best" legal
knowledge as emanating from the global North. 22 "While legal academia
from the North is seen as creating original academic products, legal aca-
demia from the South is considered solely a weak reproduction of the
knowledge generated in the North - a form of diffusion or local application
of the same."23 Secondly, he identifies the problem of "Protected Geograph-
ical Indication." 24 This means that knowledge produced in the North is, by
virtue of its origin, automatically accorded respect and recognition whereas
that produced in the South remains dependent upon the approval of those
in the North for its legitimization. Finally, there is the problem of the "effec-
tive operator," 25 the assumption that those in North are "better trained to
make effective and legitimate use of legal knowledge than academics from
the South." 26 Though Bonilla provides a strong critique of these claims, he
17. Id. at 46.

18. Id. at 49-68.
19. Id. at 64.
20. A full study of the 'Northern-ness' of legal theory lies beyond the scope of this paper but
would make an interesting project.
21. Daniel Bonilla, Legal Clinics in the Global North and South: Between Equality and Subordina-
tion-An Essay, 16 YALE HUM. RTS. & DEV. L.J. 176.
22. Id. at 185-90.
23. Id. at 185.
24. Id. at 187-90.
25. Id. at 188-90.
26. Id. at 188.
nevertheless contends that they in some sense describe the operating as-
sumptions under which relationships between legal actors take place today
in the Global South and North. There are clearly strong similarities between
the analysis of Bonilla and Connell despite the different disciplines which
they analyze. Both importantly identify and highlight a range of dynamics
that lead to a privileging of academic knowledge emanating from the Glob-
al North.
B. The Impact of Inequality on Relationships
If the analysis by theorists like Connell and Bonilla is accepted, it is im-

portant to understand the impact of these unequal assumptions and prac-
tices upon relationships between academic actors and the resultant effects
on knowledge production in the Global North and South. I shall focus on
three particular problems. First, there is what we may term the problem of
assimilation. Since Northern theory and contributions are valued more high-
ly than those in the South, exchange may lead to those in the South seeking
to take on what are perceived to be the desirable characteristics of those in
the North. The very identity and distinctiveness of the "Southern" may
thus be lost as it is subsumed by and assimilated into the North.
Secondly, there is the problem of dependency. The inequality between
parties in a relationship may involve dependency of the weaker party upon
the stronger. Dependency becomes problematic when it translates into a
power dynamic between the two that leads to subordination of the one to
the other and thus impedes a reciprocal, mutually enabling relationship
from developing. Dependency is also linked to the problem of assimilation,
as it, too, can lead to a submerging of the distinct identity of the weaker or
"Southern" parties. It also often allows an unacceptable degree of control of
27
the stronger party over the weaker party.
Finally, there is the problem of inferiority. Inequality often has an impact
on the self-understanding of each of the parties, with the weaker party feel-
ing and being perceived as inferior to the stronger.28 Academics and judges
in the South, for instance, often look to the North for theories to apply to
their own context and for approval of developments that take place in their
own localities. The stronger academic communities in the North often feed
into this sense of their superiority to the South. This sense of inferiority
harms the relationships that can develop between the two and encourages
further dependency and assimilation between North and South.
An illustration may assist in attempting to understand the more con-
crete manner in which these assumptions and processes play out. The field
27. T.M. Scanlon, The Diversity of Objections to Inequality, in THE DIFFICULTY OF TOLERANCE:
ESSAYS IN POLITICAL PHILOSOPHY 205 (2000).
28. Id. at 204.
of socio-economic rights is one that has attracted a burgeoning literature in

recent years.2 9 This is partly as a result of their inclusion in a wider range of
Southern Constitutions since the 1980s as well as the greater judicial con-
sideration they have attracted since then.3 o Constitutions of the Global
North, in general, have not contained these rights and there have been rela-
tively few attempts in the North to challenge this exclusion.3' Instead,
scholarship in the North has, by and large, reacted to the developments
surrounding social rights with skepticism.32 Jurists and academics in the
South have spent much time responding to worries (mainly articulated in
the North) about the justiciability of social rights and demonstrating how
social rights do not depart considerably from understandings of constitu-
tionalism-such as the manner in which the doctrine of the separation of
powers has been developed-prevalent in the North. 33 Most Northern theo-
rists have not felt a similar need to justify the exclusion of socio-economic
rights from their Constitutions,M Indeed, some Southern courts, such as the
South African Constitutional Court have developed a doctrine of "reasona-
29. Until the 1990s, socio-economic rights had largely been ignored but, since then, there have
been numerous books and academic articles on the topic. A few examples of monographs in-
clude SANDRA LIEBENBERG, Socio-ECONOMIC RIGHTS: ADJUDICATION UNDER A
TRANSFORMATIVE CONSTITUTION (2010); DAVID BILCHITZ POVERTY AND FUNDAMENTAL RIGHTS
(2007); DAPHNE BARAK-EREZ AND AEYAL M. GROSS EXPLORING SOCIAL RIGHTS: BETWEEN
THEORY AND PRACTICE (2007); AND CECILE FABRE SOCIAL RIGHTS UNDER THE CONSTITUTION
(2000).
30. Many recent constitutions in Africa (South Africa, Malawi, Kenya), South America (Co-
lombia, Brazil, Argentina), and Eastern Europe (Czech Republic, Slovakia Poland) have in-
cluded these rights. Naturally, this has resulted in a wider range of court decisions; also, coun-
tries, such as India, have seen the judiciary adopt a more activist approach to these rights since
the 1970s. A useful collection outlining these developments in differing countries is contained
in SOCIAL RIGHTS JURISPRUDENCE: EMERGING TRENDS IN INTERNATIONAL AND COMPARATIVE
LAW (Malcolm Langford ed., 2008).
31. Some notable academics who have done so include Frank Michelman who famously ar-
gued for the reading of social rights into the American Constitutions. See Frank Michelman,
Foreword: On Protectingthe Poor through the FourteenthAmendment, 83 HARV. L. REV 7 (1969); see
also Keith D. Ewing, The Unbalanced Constitution,in SCEPTICAL ESSAYS ON HUMAN RIGHTS 103
(Tom Campbell, Keith Ewing, & Adam Tomkins eds., 2001).
32. See, e.g., Cass Sunstein, Against Positive Rights, 2 E. EUR. CONST. REV. 35, 35-39 (1993).
Sunstein has since shifted his position to a more favorable, though still rather conservative,
view on social rights. See CASS SUNSTEIN, DESIGNING DEMOCRACY (2001).
33. See, for instance, the early debate in South Africa surrounding these rights. See, e.g.,
Etienne Mureinik, Beyond a Charterof Luxuries, 8 S.A. J. HUM. RTS 464 (1992); Nicholas Haysom,
Constitutionalism,MajoritarianDemocracy and Socio-Economic Rights, 8 S.A. J. HUM. RTS 451
(1992); D.M. Davis, The Case against the Inclusion of Socio-EconomicDemands in a Bill of Rights
Except as Directive Principles,8 S.A. J. HUM. RTS 475 (1992). The South African Constitutional
Court sought to address objections concerning the justiciability of these rights in In Re: Certifi-
cation of the Constitution of the Republic of South Africa 1996 1996 (4) SA 744 (CC). Whilst
most of the academic and legal discussion at least references some of the concerns of the
"North," it is not true that this has hampered all legal advancement in this area. Courts in In-
dia and Colombia have taken important steps to go beyond received doctrines in the North,
and several academic writers in South Africa, India and Colombia have done the same.
34. A notable exception is Frank Michelman, Socio-economic rights in ConstitutionalLaw: Explain-
ing America Away, 6 Int'l J. of Const. L. 1 (2008).
bleness" surrounding social rights that largely deprives them of any con-
crete content.35 The strongest reason given for the Court's adoption of this
doctrine has been that it is consistent with a traditional conception of the
separation of powers largely developed in the "North."3 It is interesting to
note that the South African Constitutional Court's approach has attracted
significant support amongst respected theorists of the North,3 7 yet has re-
ceived severe criticism from most local theorists." Often these Northern
theorists engage to a very limited extent with the writing and discussion in
the South, even where, as in the case of social rights, the discourse of the
South is comparatively advanced. The South African Constitutional Court
has largely not responded to criticism from members of the local academic
community that called on the Court to develop a doctrinal approach to the-
se rights that responded to the dire needs of many poverty-stricken people
in South Africa and to adopt innovative remedial approaches. Instead, the
South African Constitutional Court has recently further entrenched its con-
servative approach to socio-economic rights and the separation of powers.39
The Mazibuko case, for instance, involved a consideration as to whether a
government program providing a certain amount of water for free each
month complied with the constitutional standard of "sufficiency." The
court held that "ordinarily it is institutionally inappropriate for a court to
determine precisely what the achievement of any particular social and eco-
nomic right entails and what steps government should take to ensure the
progressive realisation of the right." 4 0 Such statements result in an extreme-
ly weak approach whereby the court largely abdicates the power to deter-
mine the content of these rights to the legislature and executive. 4 1 Though a
detailed analysis of the case cannot be undertaken here, statements such as
these, indicate a traditional "Northern" understanding of the separation of
powers which is arguably inappropriate for a Constitution that is "trans-
35. See the outline of this doctrine in Government of the Republic of South Africa v Grootboom
2001 (1) SA 46 (CC), and my critique in BILCHITZ, supra note 29, at 139-152.
36. The court most clearly articulates this reasoning in Mazibuko v City of Johannesburg 2010
(4) SA 1 (CC)
37. See, e.g., MARK KENDE, CONSTITUTIONAL RIGHTS IN Two WORLDS (2010); Cass Sunstein, So-
cial and Economic Rights? Lessons from South Africa, 11 CONSTITUTIONAL FORUM 123 (2001);
Mark Tushnet, Social Welfare Rights and the Forms of JudicialReview, 82 TEx. L. REV. 1895 (2004).
38. See, e.g., Danie Brand, The Proceduralisationof South African Socio-Economic Rights Jurispru-
dence or "What are Socio-Economic Rights For?", in RIGHTS AND DEMOCRACY IN A
TRANSFORMATIVE CONSTITUTION 33-56 (Henk Botha et. al eds., 2003); Marius Pieterse, Coming
to Terms with the Judicial Enforcement of Socio-Economic Rights, 20 S.A. J. HUM. RTS 383, 383-417
(2004); BILCHITZ, supra note 29, at 135-177; LIEBENBERG, supra note 29, at 173-179. For a rare,
contrary supportive view, see Cass Steinberg Can Reasonableness Protect the Poor? A Review of
South Africa's Socio-Economic Rights Jurisprudence,123 S.A. L.J. 264, 264-84 (2006).
39. See Mazibuko, supra note 36.
40. Id. at para 61.
41. Id. at para 66.
formative" in nature42 and seeks fundamentally to change patterns of politi-

cal and economic privilege in the society.
The example of the South African Constitutional Court highlights some
of the difficult problems and dynamics that flow from global inequalities in
the production of knowledge between the North and the South. Though so-
cio-economic rights are not generally adjudicated in the North, and the the-
ory around them is limited, the agenda for discussion surrounding this is-
sue has often been set by theoretical discussions in the North that predate
recent Southern developments around these rights. Judges in the South of-
ten justify their doctrinal and remedial approaches in light of traditional
approaches in the North that may not be relevant to the conditions of their
own society. Even though Southern theory in this area is often more devel-
oped than that in the North, it is regarded with greater suspicion even by
judges in the South. The work of Northern theorists often takes only curso-
ry account of the work of those in the South. All three problems outlined
above-assimilation, dependency, and inferiority-are evident in this dis-
course: the "new" context of the South is not dealt with on its own terms
but is assimilated into the problems of the North; the South remains de-
pendent upon the theoretical developments in the North; and there remains
a general sense of the inferiority of knowledge and developments emanat-
ing from the South. Through transplanting debates and issues that may lack
strong relevance in Southern contexts, these problems harm the global dis-
course around socio-economic rights by removing attention from the par-
ticular localities, conditions, and constitutions in question. This often affects
the creativity and innovation that might otherwise be possible by keeping
academic and judicial discourse mired in largely irrelevant "Northern" ar-
guments which often encourage a more conservative approach than would
be warranted in addressing the circumstances of the "Southern" country in
question. 43
III. INSTRUMENTAL BENEFITS OF GLOBAL EXCHANGE AND (RE)VALUING THE

GLOBAL SOUTH
In Part II, I have described some of the inequalities in the academic pro-
duction of knowledge and the resultant problems for relationships between
actors in the Global North and South. The situation described challenges
the desirability of continuing exchanges given these conditions of inequali-
42. For the notion that the South African constitution is "transformative" in nature, see Karl
Klare, Legal Culture and TransformativeConstitutionalism 14 S.A. J. HUM. RTs 146 (1998).
43. I consider the innovations in the global South around social rights and the importance of
moving beyond the "Northern" conceptions of such doctrines as the separation of powers in
David Bilchitz, Constitutionalism, The Global South and Economic Justice, in CONSTITUTIONALISM
IN THE GLOBAL SOuTH: THE ACTIVIST TRIBUNALS OF INDIA, SOUTH AFRICA AND COLOMBIA (Dan-
iel Bonilla Maldonado, 2013).
2013 Creating the Space "In Between" 69
ty. Yet, the new globalised world has changed in such a way that it is no
longer possible to avoid such exchanges. As such, we are in a position
where it becomes necessary to consider expressly the reasons why these
North-South relationships can be valuable and the conditions under which
that value can be attained. This analysis provides the first step towards de-
veloping more equal and beneficial global academic relationships.
A. Instrumental Benefits of Exchange and Diversity of Con-

ditions
In this section, I wish to concentrate on what may be termed the instru-

mental benefits of exchanges; I shall focus for purposes of this paper on ex-
changes between law schools and legal academics in the Global North and
South. By instrumental benefits, I mean that such exchanges or relation-
ships would be valued for their ability to realize some important end or
goal outside of the relationship itself. This is to be contrasted with intrinsic
benefits whereby the relationship or exchange is valued for its own intrinsic
worth.
There are a number of instrumental reasons that can be given for valu-
ing exchanges between law schools in the Global North and South. I will
divide these reasons into three categories." First, there are what we may
term justice-based rationales. Exchanges between academics and law schools
in differing conditions may make them aware of possibilities -for instance,
in relation to legal arguments or the design of legal institutions-of which
they were not formerly cognizant. This in turn may, for instance, encourage
the development of solutions for a particular society that would not have
been thought of but for the exchange. Ultimately, such exchanges could
thus lead to the advancement of social justice. Northern theorists may, for
instance, learn from discussions with Southern colleagues of the possibili-
ties for making socio-economic rights justiciable, which may lead to an
eventual change in Northern thinking and jurisprudence surrounding these
rights.
Secondly, there are what we may term truth-based rationales. Legal
knowledge is often aimed at understanding which theories or doctrines
may work in particular contexts as well as seeking to understand the effi-
ciency of particular legal solutions in addressing social problems. Exchang-
es between law schools in the North and South help highlight the different
conditions of these societies and thus provide an interesting testing ground
for understanding whether a doctrine can be said to be of universal ap-
plicability or whether it works (or makes sense) only within particular
conditions. For instance, the particular conditions of the Global South
where there are often one-party dominant democracies may challenge gen-
44. I do not seek to claim that these are exhaustive.

eral constitutional theories and doctrines surrounding judicial review and

the separation of powers. 45 The very diversity of the conditions in these so-
cieties is thus useful in determining the "truth" or "generalizability" of par-
ticular theories. 46
Finally, there are what we may term skills-based rationales. Exchanges be-
tween academics in the Global South and North may help sharpen the ana-
lytical skills of participants by exposing them to thinkers and theories that
may not otherwise have been considered in their particular communities.
This increased knowledge about other parts of the world, including con-
ducting research in other areas and the negotiation of differences in culture,
procedure, and language, may help advance both human and legal skills.
What all these rationales share in common is the understanding that the
exchange is likely to have benefits for each of the parties to it: ultimately, its
value is rooted in advancing the interests of each party. Moreover, the very
benefits of the exchange described above largely result from the diversity
that exists between parties coming from the Global North and the Global
South. Since diversity is the key source of many of the very instrumental
benefits of such an exchange, it is counterproductive for that very diversity
to be diminished. Yet, as we saw in Part II, the inequalities between the
Global North and South often lead to the problems of assimilation, depend-
ency, and inferiority. All these effects on academic communities tend to re-
duce diversity; assimilation, for instance, tends to force "Southern" theo-
rists into submerging their differences from their "Northern" counterparts
and adopting "Northern" theoretical rubrics and categories. Ironically, this
reduction of diversity (flowing from global inequalities) renders the ex-
changes less valuable from an instrumental point of view and ultimately
leads to an impoverishment of both academic communities.
B. Challenging Unequal Valuations of the Global North and

South
If the instrumental arguments for these exchanges are regarded as com-
pelling, then it is in the interests of parties from both the Global North and
South to seek to address the underlying dynamics outlined in Part II. It
does not appear realistic to expect law schools and academics singlehand-
edly to be capable of changing the inequality of resources that exist be-
45. Jeremy Waldron, The Core of the Case againstJudicial Review, 115 YALE L.J. 1348, 1402 (2006)
admits that some of the arguments he makes against judicial review are not applicable in soci-
eties that do not meet certain conditions. He also writes about "core" and "non-core" cases.
Yet, most countries in the South probably fit his description as "non-core" cases, an appella-
tion that again assumes the primacy of "Northern" societies. Sujit Choudhry, 'He had a man-
date': The South African ConstitutionalCourt and the African National Congress in a Dominant Party
Democracy, 2 CONST. CT REV. 1 (2009) writes compellingly about the importance of a Constitu-
tional Court tailoring its role and doctrines differently in one-party dominant democracies.
46. The notion of "truth" in legal theories and doctrines is very different to the notion applica-
ble in the natural sciences.
2013 Creating the Space "In Between" 71
tween the North and South, which is unlikely to disappear in the near fu-
ture (though clearly it would be desirable if this could be achieved). 47
Nevertheless, academics and universities do have the power to chal-
lenge the unequal valuation of academic knowledge emanating from the
North and the South. Inequality of resources need not automatically trans-
late into an inequality of valuation. Indeed, as was argued above, it is the
very diversity of conditions in countries of the Global South and North
which adds significant value to these exchanges. .
Part of the problem has been that the production of knowledge in the
North is often valued in more favorable terms than knowledge emanating
from the South. This is often because of the particular features of how
knowledge is produced in these respective domains as I shall explain fur-
ther below. However, as I shall argue, the diversity of the conditions for the
production of knowledge in these different domains has both various ad-
vantages and disadvantages. There is thus no general compelling reason to
value knowledge emanating from the North more highly than that from the
South. Instead, global knowledge as a whole can be improved through chal-
lenging the unequal valuation of knowledge emanating from the South and
valuing the distinctive advantages that academics in each domain bring to
collaboration and exchanges.
To illustrate these points and render the discussion and argument more
concrete, I shall consider three important distinctions between the condi-
tions for knowledge production in the Global North and South: first, the
"old" versus the "new"; secondly, specializing versus being a generalist;
and finally, "detachment" versus "involvement."48 I shall seek to demon-
strate how the characteristic conditions of the Global North and South have
strengths and weaknesses: it is in the confrontation between the two that
mutual learning and advancement of the goals of exchange can take place.
1. The 'Old' and the 'New'
One of the features that is often regarded as giving the North a certain
primacy in the production of knowledge is its being "old." Traditions of
constitutionalism, for instance, and the rule of law have developed over a
47. No doubt, there are increasingly powerful countries in the South whose investment in their
own universities can help improve the attractiveness of working conditions in the South and
an important task of theorists both from the North and South is to make the case for greater
investment in the intellectual resources of the South.
48. I should say as a matter of qualification that these antimonies do not seek absolutely to cap-
ture divergences between the North and South. Indeed, given our inter-connected world and
the different conditions within Northern and Southern countries, there will be features of the
North that exist in the spaces in the South and vice-versa. I simply attempt to capture in a very
general way certain broad facets where the two may be said to diverge in interesting ways. I
then seek to demonstrate why these facets do not support the general prioritization of the
"North" and support a re-valuation of the "South."
long period of time and, as a result, there has been much learning and writ-
ing upon them. "Oldness" is often connected with experience and a certain
wisdom, which could translate into the assumptions relating to the "well of
production" and "protected designation of origin" outlined in Part II.
However, the "old" is not entirely positive: the notion often goes together
with a certain rigidity; it is connected with what can be outmoded and
stuck in the past; and the "old" is often seen as conservative, which justifies
a problematic status quo. The justice of (or other rationales for) particular
doctrines or states of affairs may thus be defended in the "North" simply
on the basis of tradition. 49
Southern countries, on the other hand, have only more recently experi-
enced full independence. Constitutionalism is often "new" and the rule of
law rather fragile. They lack the traditions and experience of the North. Yet,
in some sense, this is a positive feature of conditions in the South: the recent
construction of the political communities in the South permits openness to
different ways of organizing society. Since there is no strong tradition that
has legitimacy, there is the possibility of striking out on a new path of legal
doctrines and institutions. These circumstances open up a space for creativ-
ity and innovation that may not exist in the North. The South has the bene-
fit and burden of being able to forge law and doctrine in the crucible of its
own difficult conditions; what emerges may in fact help address not only
the local conditions but provide theoretical developments of importance in
the North.
Again, I shall take the example of socio-economic rights. Their inclusion
in the Constitutions of the South highlights an omission in the Global
North.50 These rights also invite judges and academics to develop legal ap-
proaches that can give concrete effect to these rights and also to re-envision
doctrines such as the separation of powers in ways that do not hamper their
realization. Judges in Colombia and India, for instance, have been highly
innovative in seeking to employ socio-economic rights to improve condi-
tions of distributive justice in their societies. 5' In doing so, however, they
also highlight the inadequacies of jurisprudence of the North for failure to
provide a justiciable constitutional remedy to those who are in dire need.
Whilst the North may indeed have experiences that the South should
learn from, the South lacks the strong traditions and doctrines that con-
strain the development of the "new." That in turn opens the space for the
49. Take the debate on health-care reform in the United States. The "tradition" of not provid-
ing a comprehensive welfare net seems to play a central part in a debate about according a
most basic entitlement to individuals.
50. I have made this argument in Bilchitz, supra note 43.
51. See, for instance, the right to food case in India (PUCL v Union of India (Writ Petition no
196 of 2001)) and the case relating to the rights of internally displaced people in Colombia (for
a description of this case in English, see Manuel J6se Cepeda Espinosa, The ConstitutionalPro-
tection of IDPs in Colombia, in JUDICIAL PROTECTION OF INTERNALLY DISPLACED PERSONS: THE
COLOMBIAN EXPERIENCE (Rodolfo Arango Rivadeneira ed., 2009).
South to innovate in ways that extend beyond the possibilities articulated in

the North. Recognizing the value in the distinctive features of the South
means there is no need to give evaluative primacy to the North. This
recognition is an important step toward advancing the instrumental value
of exchanges between North and South and allows the relative strengths of
each to provide an instructive opportunity for mutual learning between
these different societies.
2. Being Specialist versus Being Generalist
The Global North, as has already been mentioned, often has a long tradi-
tion of high quality scholarship. It has had the resources to invest in the de-
velopment of skilled professionals and academics and is often able to at-
tract talented individuals from other parts of the world. As a result, there is
a much larger pool of skilled individuals in Northern societies. This is tradi-
tionally seen as a very positive feature of these societies: there is a large
amount of competition between academics and law schools, which encour-
ages the creation of better scholarship. Yet this very deep pool of academics
means that often it is harder to distinguish oneself from others. To do so of-
ten involves becoming an expert in a very narrow field of study. Northern
societies thus see an increasing specialization of knowledge and research in
their societies, which may, in some cases, harm their ability to contribute to
solving problems faced by the South. 52
By contrast, Southern societies have often suffered from major educa-
tional deficits. Skills in these societies are scarce and there are often only a
small number of highly qualified academics and professionals. In some so-
cieties, unfortunately, legal academia is so poorly paid that academics must
often have other jobs, and as a result they produce very limited research. In
most Southern nations, the pool of well-trained academics is small. As such,
it is not possible for them to specialize in the same way and they must
teach, research, and engage with a wide-range of issues that arise in their
societies. Constitutional experts, for instance, may thus be required to write
on a variety of issues including the separation of powers, federalism and
bill of rights issues. Being able to specialize in a particular facet of constitu-
tionalism becomes a luxury.
Whilst being a generalist does not allow for as much depth in a particu-
lar specialty, it does enable academics working in the South to see intercon-
nections between areas that a specialist would not. Southern academics can
achieve a breadth of knowledge as well as an understanding of how the di-
52. See, for instance, Colin Brown et. al, Post-GraduateTrainingin Global Health: Ensuring UK
Doctors can Contributeto Health in Resource-PoorCountries, 11 CLINICAL MEDICINE 456 (2011)
which deals with the suitability of the training of doctors in the United Kingdom for practicing
medicine in the Global South.
verse areas of a field such as constitutionalism relate to the particular socie-

ty in which they work. Although the skills shortage is no doubt negative for
the society, it can have some positive effects. The conditions of having to be
a generalist may come at a cost for academics in the South, but so, too, do
the higher levels of specialization in the North. Exchanges can help expose
academics to each other's experiences of working within these different cul-
tures and compensate for the weaknesses inherent in each of those cultures.
Recognizing the strengths and weaknesses of both environments means
that neither is automatically privileged and that both partners in the ex-
change can be valued and offer opportunities to learn from one another.
3. Detachment versus Involvement
In the Global North, in many ways, the university and the forms of
knowledge it produces are "detached" from broader societal and political
developments. This is not to say that academics are not involved in bring-
ing about social change; it is rather to contend that they have a certain privi-
lege of "critical distance" from engaging in the very construction of their
own societies. Whilst there may be serious imperfections in their political
communities, the broad structures and contours thereof have been estab-
lished. Academics may thus be involved in recommending reforms, but it is
unlikely the entire basic structure of the political community will collapse.
This position enables academics to adopt a strong skepticism towards even
very foundational features of their society without fearing severe conse-
quences for institutions and social stability. Academics in the North thus
can be said to have the luxury of critical detachment; they, however, often
lack the sense of urgency that comes from intellectual debate having a real
and concrete effect upon the very foundations of their society. 53
In the South, on the other hand, the intellectual is in quite a different po-
sition. Academic debates often have a real effect upon the survival and le-
gitimacy of institutions in the society. Academics-if they are conducting
activities of relevance to the society-are often centrally involved in helping
to chart the course of that particular society. As such, academics often work
actively towards the reconstruction of the society in which they find them-
selves whether through teaching activities or research. There is a strong in-
volvement in the society which involves a significant responsibility that
must be assumed in these circumstances when one's scholarship can lead to
major changes. Skepticism towards judicial review, for instance, may con-
cretely influence political actors to do away with it. This stance of "in-
53. Indeed, an interesting illustration is the Brandeis brief that was submitted to the United
States Supreme Court in the matter relating to physician assisted suicide, namely Washington
v Glucksberg 521 U.S. 702 (1997) and Vacco v Quill 521 U.S. 793 (1997), written by six eminent
philosophers,. The main judgment in these cases virtually ignored the brief and ruled against
the views of these eminent intellectuals.
volvement" as opposed to "detachment" thus changes the agenda and fo-

cus of academic research in the South.
Edward Said famously pointed out, in his analysis of the influence of
imperialism on literature, that "in the West, postmodernism has seized up-
on the ahistorical weightlessness, consumerism, and spectacle of the new
order."M Yet, in the Islamic world and much of Africa and Latin America,
intellectuals are still concerned with "modernity itself."55 This distinction
between the post-modernist projects of the North and the modernist focus
of the South can, I think, be centrally connected to the characteristics of each
I have identified above relating to detachment and involvement. In the
Global North, since academics are removed from the very formation of
their societies, they are able to engage in projects of "de-construction": seek-
ing to undermine and challenge the forms of thought and discourse under-
lying some of the institutions that are taken for granted. 56 Indeed, in such
projects, the very notions of truth and justice often become contingent and
subject to significant skepticism or relativism. Academics in the Global
South, however, do not have this luxury: they cannot simply assume the
background stability of their societies. The very act of construction involves
a concern with trying to develop institutions that are just and engage with
modes of thought that promise truth. Skeptical questions surrounding truth
and justice become less important; the focus, rather, is on defining what
these central values mean for the societies in which these intellectuals oper-
ate.
Two related and more concrete examples in the legal sphere may help il-
lustrate these points. In the North (and particularly in North America),
there is a strong tradition of realist assumptions about how judges oper-
ate. 7 The particular appointment procedure to the Supreme Court that is
adopted in the United States has allowed politics to have a strong influence
on the process. There is, as a result, a large degree of skepticism about the
relationship between judging and politics. Indeed, some political scientists
have sought to track the relationship between the decisions of judges of the
Supreme Court and the President or parties under which they were ap-
54. EDWARD SAID, CULTURE AND IMPERIALISM 399 (1994).

55. Id.
56. Deconstruction is centrally associated with certain post-modem philosophers and, in par-
ticular, Jacques Derrida. See, e.g., Jacques Derrida, Deconstructionand the Other, in DIALOGUES
WITH CONTEMPORARY CONTINENTAL THINKERS: THE PHENOMENOLOGICAL HERITAGE 107-126
(Richard Kearney ed., 1984); JACQUES DERRIDA, ON COSMOPOLITANISM AND FORGIVENESS
(2001). To some extent, in this section, I am seeking to de-construct the binary oppositions and
hierarchies between the conditions prevalent in the Global North and South.
57. Classic expression of legal realism date to the early part of the 20th century. See, e.g., Karl N.
Llewellyn, Some Realism about Realism, 44 HARV. L. REV. 1222 (1931). The Critical Legal Studies
movement built on these ideas with much stronger skeptical intent. See, e.g., DUNCAN
KENNEDY A CRITIQUE OF ADJUDICATION (1997).
pointed, and have shown a strong predictive relationship in this regard.58

There is thus a strong view that judging is intimately political in nature and
that the distinction between law and politics often breaks down. 59 All this
analysis takes place against the backdrop of a society in which the institu-
tions of law are rather secure and the political branches rarely challenge the
system and institution of judicial review.60
Contrast this situation with Southern societies that are more fragile, such
as South Africa. The judicial review powers of the Constitutional Court
have recently come under attack by politicians, including the President.
They are not happy that the Court has the power to overrule decisions they
believe they are entitled to make as a result of their being democratically
elected. 61There have been several responses from senior (and usually re-
tired) judges: a notable feature of these responses has been the attempt to
minimize the discretion of judges and to strengthen the law/politics distinc-
tion. Justice Kate O'Regan, for instance, argued, that judges in South Afri-
can constitutional democracy are simply allowed to review laws on the ba-
sis of three questions: the lawfulness of conduct, the rationality of these
laws, and their consistency with the Bill of Rights. 62 In a situation where the
very institution of judicial review is precarious, a skeptical position regard-
ing judging that emphasizes its political dimension could undermine the
very institution itself. 63
These views relating to the process of adjudication also translate into at-
titudes towards particular doctrines of law. Again, looking at the field of
socio-economic rights, Northern theorists are generally more skeptical
58. Classic texts in this regard include Rober Dahl, Policy-making in a Democracy: The Supreme
Court as a National Policy-Maker, 6 J. PUB. L. 279 (1957); and JEFFREY SEGAL & HAROLD SPAETH
THE SUPREME COURT AND THE ATITUDINAL MODEL REVISITED 433 (2002) (stating that "[tihe
fact remains that the ideology of the justices drives their decisions").
59. See KENNEDY, supra note 58, at 69-70.
60. See JEFFREY SEGAL, HAROLD SPAETH & SARA BENESH, THE SUPREME COURT IN THE AMERICAN
LEGAL SYSTEM 71 (2005) (arguing that despite the partisan nature of the decision in Bush v Gore,
for instance, "we doubt that this decision will preclude the Court from perpetuating its posi-
tion as the authoritative policymaker on any subject that it decides to address. We find no evi-
dence that the Bush v Gore fallout has diminished the Court's stature").
61. See Pierre De Vos, An Unambiguous Attack on Constitutional Democracy, CONSTITUTIONALLY
SPEAKING (Feb. 14, 2012) http://constitutionallyspeaking.co.za/an-unambiguous-attack-on-
constitutional-democracy/.
62. Kate O'Regan, A Forum for Reason: Reflection on the role and work of the ConstitutionalCourt,
Helen Suzman Memorial Lecture (Nov. 22, 2011), availableat
http://constitutionallyspeaking.co.za/justice-kate-oregans-helen-suzman-memorial-lecture/
(last visited Apr. 1, 2012).
63. There has been some disagreement on this point in South Africa. Karl Klare in a well-
known article claims that the judges in South Africa should adopt a realist approach. See Klare,
supra note 42. His view has, however, been strongly contested by Theunis Roux who argues
that this would have been particularly unwise under the conditions faced by the Constitution-
al Court. See Theunis Roux, Principle and Pragmatismon the ConstitutionalCourt of South Africa, 7
INT'L. J. CONST. L. 106 (2009); THEUNIS Roux, THE POLITICS OF PRINCIPLE: THE FIRST SOUTH
AFRICAN CONSTITUTIONAL COURT, 1995-2005 (forthcoming, 2013).
about judicial involvement in this area and worried both about the legiti-
macy of judges imposing their own economic preferences on majoritarian
institutions and their competence to do so.64 Some theorists and judges
(mainly from the South) have instead been more focused on articulating the
content of these rights, for instance, in a way that supersedes simple politi-
cal divergences between conservatives and liberals. 65 Indeed, if there is a
universal minimum core below which no decent society should allow a
person to fall, then it appears that judges may legitimately enforce that min-
imum without imposing overly-controversial views of their own on the
whole society. 66 In some sense, this perspective rooted in the South seeks to
determine what constitutes the minimum conditions of justice. Many legal
theorists in the North often seem less concerned with determining how to
enforce provisions relating to distributive justice, but instead focus on ana-
lyzing and critiquing the political assumptions underlying any particular
judicial position that is adopted.
These examples draw our attention to the value inherent in both pro-
jects. On the one hand, the purely skeptical stance provides little guidance
to societies seeking to transform their institutions in the direction of greater
justice. On the other hand, skepticism may be needed to challenge founda-
tional questions as well as to uncover some of the hidden power dynamics
and ideologies underlying many legal institutions and their practices. Simi-
larly, both stances of detachment and involvement provide important per-
spectives through which the work of legal theorists can be enhanced. Ex-
change is valuable precisely because of the interaction between academics
and intellectuals faced by these differing conditions and emphases; a
recognition that neither the characteristic features of societies in the Global
North nor Global South are to be privileged or undervalued is necessary to
create the conditions under which optimal mutual learning can take place.
IV. THE INTRINSIC VALUE OF EXCHANGES: AN AFRICAN PERSPECTIVE
I have argued that instrumental benefits of exchanges between law

schools in the Global North and South arise precisely because of the differ-
ing experiences each of the parties brings to any exchange and that, conse-
quently, it is important to recognize the value that lies in characteristics of
both the North and the South. Whilst the inequality of resources between
the two may not easily be changed, academics can and should challenge the
unequal value attributed to the conditions existing in and knowledge pro-
duced from the Global South.
64. See, e.g., Sunstein, supra note 32, at 36-37.

65. See, e.g., Cepeda, supra note 51; BILCHITZ, supra note 29; FABRE, supra note 29.
66. Id. BILCHITZ at 234.
However, one might argue that a focus on instrumental benefits does

not go far enough. Conceiving of the benefits of exchange purely in instru-
mental terms, it may be argued, implicitly accepts certain Northern as-
sumptions concerning the value of such relationships. Moreover, the "in-
strumental benefits approach" ultimately sees the value of exchanges as
emanating from the self-interest of each of the parties to the relationship. A
conception of exchange rooted in self-interest might justify the use of the
unequal power of institutions in the North to prioritize and advance their
own interests in such a manner that may be optimal from a Northern point
of view but only minimally beneficial from the perspective of those in the
South. Exchange based upon self-interest under conditions of inequality is
likely simply to perpetuate that inequality.6 7 If this is so, then it is necessary
to frame the value of knowledge exchanges and relationships between insti-
tutions and individuals in the Global North and South in different terms
that do not permit the North to focus on simply advancing its own inter-
ests.
In this section, I outline a different conception of exchange relationships
and their value. I draw on writings in African moral theory and, in particu-
lar, the concept of ubuntu, which emanates from that field of scholarship
and is evident in some of the case law of the South African Constitutional
Court. The ideas rooted in African moral theory give us an alternative con-
ception of the value of relationships, which, I argue, might provide us with
the conceptual tools necessary to design and envisage more equal exchang-
es.
A. Relationships in African Moral Theory and Law
John Mbiti, in the late 1960s, published a book that sought to describe
certain central features of African religion and philosophy. In a particularly
important passage, he states that "[iun traditional life, the individual does
not and cannot exist alone except corporately. He owes his existence to oth-
er people, including those of past generations and his contemporaries. He is
simply part of the whole."68 Mbiti goes on to explain:
Only in terms of other people does the individual become con-
scious of his own being, his own duties, his privileges and respon-
sibilities towards himself and towards other people . . . [t]he indi-
vidual can only say: "I am, because we are; and since we are,
therefore I am." This is a cardinal point in the understanding of the
African view of man. 6 9
67. This is one of the insights underlying the need for a "veil of ignorance" in Rawls' original
position. See JOHN RAWLS, A THEORY OF JUSTICE 118-123 (1999).
68. JOHN MBITI, AFRICAN RELIGIONS AND PHILOSOPHY 108 (1969).
69. Id. at 108-09.
Mbiti here expresses the strong conception of the relationship between

individuals in traditional African thought. Central to the individual's own
identity is her connection to others and it is through the relationship to oth-
ers in the community that the self emerges. Individuals cannot be conceived
of properly as existing prior to society but emerge from it. These ideas are
expressed in various ways on the continent and one such expression is con-
tained in the Xhosa phrase umuntu ngamuntu ngabantu, which can be trans-
lated as "a person is a person because of other people." Justice Mokgoro, in
one of the early South African Constitutional Court's cases relating to the
constitutionality of the death penalty (Makwanyane), claimed that this apho-
rism gives expression to the philosophical notion of ubuntu which translates
as "humaneness. In its most fundamental sense, it translates as personhood
and morality."70
Justice Langa, in the same death penalty decision, elaborated upon the
notion of ubuntu, which he described as:
of some relevance to the values we need to uphold. It is a culture

which places some emphasis on communality and on the interde-
pendence of the members of a community. It recognises a person's
status as a human being, entitled to unconditional respect, dignity,
value and acceptance from the members of the community such
person happens to be part of. It also entails the converse, however.
The person has a corresponding duty to give the same respect, dig-
nity, value and acceptance to each member of that community.
More importantly, it regulates the exercise of rights by the empha-
sis it lays on sharing and co-responsibility and the mutual enjoy-
ment of rights by all.?'
In this passage, Langa seeks to address one of the central tensions in the
theory surrounding ubuntu, namely, that between the individual and the
community. Some of the understandings of ubuntu suggest an ethic that
prioritizes the communal over the liberty, rights, and flourishing of the in-
dividual. 72 Yet, as can be seen from Langa's discussion above, many think-
ers and judges dispute this characterization and seek to find a manner to
defend the relational ethos that ubuntu encourages whilst making space for
individual rights. Gyekye, for instance, defends an African communitarian
70. S v Makwanyane, 1995 3 SA 391 (CC) para 308.

71. Id. at para 224.
72. See, e.g., Ifeanyi A. Menkiti, Person and Community in African Traditional Thought, in AFRICAN
PHILOSOPHY: AN INTRODUCrION 180 (Richard A. Wright ed., 1984) (stating that African thought
"asserts an ontological independence to human society and moves from society to individu-
als").
view of the person that can respect the individual person and her rights.73
He argues that recognition of individual rights is a conceptual requirement
of African communitarian morality and that "allowing free rein for the ex-
ercise of individual rights . . . will enhance the cultural development and
success of the community."74 Nevertheless, African thinking, Gyekye ar-
gues, would give a certain priority to duties that flow from:
the demands of the relational character of the person in the wake of

his/her natural sociality. The sociality of the person immediately
makes him/her naturally oriented to other persons in relation with
whom he/she must live. Living in relation with others directly in-
volves a person in social and moral roles, duties, obligations and
commitments which the individual person must fulfill. The natural
relationality of the person thus immediately plunges him/her into a
moral universe, making morality an essential social and trans-
individual phenomenon focused on the well-being of others. 5
This underlying ethos concerning the value of relationships and the re-
spect accorded to each individual in those relationships has led some writ-
ers to discuss practices that give expression to these ideas. Dialogue and
conversation, for instance, are examples of activities in African culture that
create and express community. 6 Such conversational activities are, in some
sense, the "ultimate purpose and typical activity of a community as under-
stood in African thought" because they are cooperative activities "achieved
simply by the presence of person to person rather than by them fulfilling
any further function, as would be the case in some practical activity such as
building a house."n This focus on dialogue and conversation had an impact
on decision-making structures in traditional African communities, which
aspired to achieve consensus between participating parties. "So strong was
the value of solidarity that the chief aim of the councilors was to reach una-
nimity, and they talked till this was achieved."78
Steve Biko, one of the leaders of the black consciousness movement in
the 1970s, also wrote a famous essay on what is distinctively "African." 79
He remarked:
73. See also POLYCARB IKUENOBE, PHILOSOPHICAL PERSPECTIVES ON COMMUNALISM AND

MORALITY IN AFRICAN TRADITIONS 60 (2006).
74. Kwame Gyekye, Person and Community in African Thought, in PHILOSOPHY FROM AFRICA: A
TEXT WITH READINGS 329-30 (P.H. Coetzee & A.P.J. Roux eds., 1998).
75. Id. at 332.
76. AUGUSTINE SHUTITE, PHILOSOPHY FOR AFRICA 49 (1993).
77. Id.
78. KoFI A. BUSIA, AFRICA IN SEARCH OF DEMOCRACY 28 (1967).
79. Steve Biko, Some African Cultural Concepts, in I WRITE WHAT I LIKE (Steve Biko ed., 2004).
Westerners have in many occasions been surprised at the capacity

we have for talking to each other-not for the sake of arriving at a
particular conclusion but merely to enjoy the communication for its
own sake. Intimacy is a term not exclusive for particular friends but
applying to a whole group of people who find themselves together
either through work or through residential requirements.80
Living communally for Biko expresses the African view that living to-
gether in community with others is not an unfortunate element of human
life but the essence of what it is to be human. 81
This ethos was given expression to in a culture where artistic expression
occurs often through joint singing, ownership of land is rooted in commu-
nal property rights, and mutual aid between neighbors rendered poverty
virtually unknown. In concluding his essay, Biko argued:
We believe in the long run the special contribution to the world by

Africa will be in this field of human relationship. The great powers
of the world may have done wonders in giving the world an indus-
trial and military look, but the great gift still has to come from Afri-
ca-giving the world a more human face. 82
I have sought briefly to outline and quote from the theories of various
scholars who provide an understanding of some of the key tenets of African
moral and political theory. As we have seen, central to this body of thought
is relational value: value inheres not solely in an individual but in the quali-
ty of relationships that exist between them.83 Relationships also are regard-
ed as being of intrinsic value and this central idea conditions the develop-
ment of institutions and practices of decision-making that embody this
ethos. Though these ideas comes from some of the modes of thought that
are current in Africa, they have similarities and some differences from cur-
rents of thought prevalent in the North such as those rooted in feminist or
communitarian ideas." It is to an exploration of how these ideas can impact
upon global exchanges that I now turn.
80. Id. at 45-46.

81. Id. at 46.
82. Id. at 51.
83. For a defense of such a relational account of value, see Thaddeus Metz, For the Sake of
Friendship:Relationalityand Relationship as Grounds of Beneficence, 57 THEORIA 54 (2010).
84. See, e.g., CAROL GILLIGAN, IN ADIFFERENT VOICE (1993); Robin West, Jurisprudenceand Gen-
der, 55 UNIv. CHI. L. REV. 1(1988); MICHAEL SANDEL, LIBERALISM AND THE LIMITS OF JUSTICE
(1998).
Towards an African model of global relationships?
As it has been developed thus far, African moral theory has not ad-
dressed questions relating to international relationships and exchanges. In-
deed, the communities and relationships traditionally conceived of were
strongly local in nature. Yet, these ideas rooted in the localities of the South
do have a global resonance. In this section, I will explore their meaning for
international exchanges between academics and law schools in the Global
North and South.
1. Relationships as ends in themselves
As we have seen, in the African philosophical world-view outlined

above, the value of relationships does not depend upon instrumental bene-
fits being achieved for individuals through their engagement in such rela-
tionships. What matters is not what each person acquires from a relation-
ship: the relationship itself is of intrinsic value. This is partly because it is
regarded as impossible to separate an individual from the social relation-
ships in which his identity and distinctness is formed. In some sense the so-
cial provides the setting for the individual's own emergence; the social is
also constituted by multiple relationships between individuals. It is thus
not feasible to assert an order of priority between the individual and the so-
cial: both have intrinsic value.
If we apply the latter perspective to North-South exchanges, we recog-
nize that their value is not to be captured in purely instrumental terms; ra-
ther, an ethic rooted in ubuntu would see the creation of relationships be-
tween parties in the South and North as having intrinsic value. Those
relationships are also in some sense inevitable in the world of global con-
nections that now exists. Moreover, the very existence of such relationships
will be transformative and have an influence on the identities of the parties
concerned. That said, it is clear that not all forms of relationship between
individuals or institutions are inherently good (they can be characterized by
dominance, violence, inequality, and much else). An account of value thus
cannot stop at the intrinsic importance of relationships, but must explain
which forms of connection are valuable
2. Relationship and Dialogue
We saw that several African authors emphasize the joy and value of
conversation and dialogue, even if not directed at achieving a particular
purpose. This focus suggests certain characteristics of interaction between
individuals that are valuable. First, these interactions are not purely aimed
at self-interest but involve both parties aiming to relate to one another. Se-
cond, for a conversation to continue and be enjoyed by both parties, each

must feel as if s/he is contributing and valued. Third, individuals must feel
comfortable to continue or end the conversation voluntarily. Fourth, the
parties must seek to understand one another. Finally, each must value the
other and the continuation of the discourse for such a practice to continue. 5
These elements of a successful dialogue all provide guidance as to the
kinds of exchange that are valuable. They also suggest ethical constraints
on the ways in which relationships are built that seek to mitigate the effects
of differential power relations. Freedom, contribution, and a true to desire
to understand and reach out to the other are central to building successful
exchanges. An important feature of dialogue is that each person brings his
or her own distinctive thoughts and identities to the exchange. Dialogue is
not about extinguishing the differences between individuals but building
intrinsic relational value through the interaction of two distinct parties.
Finding understanding across difference and distinctness is one of the chal-
lenges of this process.
3. Relationships and their moral implications
True relationships cannot exist in the African ethic without respect for
each party. As we saw above, Gyekye, for instance, automatically links the
relational ethos underlying African ethics to morality and the duties indi-
viduals have towards one another and well as the demand for the fulfill-
ment of certain rights. 86 This means that once we form exchanges of any
type we are immediately placed in the moral domain. Greater interaction
between individuals and legal actors automatically places moral demands
on each of the parties. These demands begin by ensuring respect for each
party, which entails valuing the contributions of each and not treating ei-
ther party as lesser. This may, of course, lead to further practical duties and
consequences.
4. Identification
In recent years, philosophical and legal academic work in Africa has fo-
cused on trying to expand and develop the justification, meaning and im-
plications of the key ideas explored in Part IV.A above. Thad Metz, for in-
stance, has sought to take these ideas and build a fully-fledged African
moral theory with the following basic principle: "an act is right/just insofar
as it is a way of living harmoniously or prizing communal relationships,
85. A rather sophisticated "Northern" theory that is helpful in developing a theory of moral
relationships between members of a political community from the basic presuppositions of
communicative action is that of HABERMAS, supra note 1.
86. See Gyekye supra note 74, and the quote referenced at note 76.
ones in which people identify with each other and exhibit solidarity with
one another; otherwise, an act is wrong."8 7 Metz expands upon two key
ideas involved in the notion of what constitutes intrinsically valuable rela-
tionships. The first is what he terms "identification": to identify with one
another is "largely for people to think of themselves as members of the
same group-that is, to conceive of themselves as a 'we,' as well as for them
to engage in joint projects, coordinating their behavior to realize shared
ends."8 Identification for Metz consists of two elements: the first is an atti-
tudinal dimension. This involves parties to a relationship recognizing
themselves as part of the same group, as a "we." Such a form of relating
may exist in various contexts in which relationships are formed: on a more
abstract, large-scale level, citizens of a joint political community may identi-
fy as "we, South Africans;" on a smaller-scale level, we may identify as
"we, the members of a university," or "we, the members of a synagogue or
church." This notion captures what it means for us to see ourselves as inte-
gral part of a particular grouping with whom we identify. The second ele-
ment of identification is a practical one whereby we engage in joint projects
together. If we conceive of ourselves as part of the same group or communi-
ty, then we are willing to co-operate with one another and work together
for joint goals.
The requirement of identification is most interesting in terms of what it
could imply for global exchanges. The ideal would not simply be for dis-
tinct parties to join together for the instrumental benefits that would result
for each; rather, the ideal would be to establish a new community. No mat-
ter one's origins, each party to an exchange would thus need to conceive of
themselves as members of a joint community. Whilst the origins and dis-
tinctiveness of each individual party to such an exchange would need to be
respected and valued, there would also be a need to create something new,
a shared space in which individuals come to identify with one another. The
focus would not simply be on sharing where one comes from but also seek-
ing to become different through one's connection and identification with
others. In a certain sense, then, any exchange conceived of according to this
model cannot help but be transformational: it will of necessity move the in-
dividual parties beyond the boundaries of their original communities and
start mapping out the contours of different forms of community. That con-
ceptual shift would be translated into joint projects that would usually ac-
company the creation of any such exchange in the first place. However, the
exchange would not simply be limited to ensuring that these joint projects
are successful, but rather would seek to bring about an attitudinal shift in
87. Thaddeus Metz, Human Dignity, Capital Punishment and African Moral Theory: Towards A
New Philosophy of Human Rights, 9 J. HUM. RTs 81, 84 (2010); see also Thaddeus Metz, Ubuntu as a
Moral Theory and Human Rights in South Afica, 11 AFR. HUM. RTs. L. J 532 (2011).
88. Metz, Human Dignity, supra note 87, at 84.
the very way that these benefits are conceptualized through establishing a
greater identity of interests between participants.
5. Solidarity
The second key element Metz identifies of the features of valuable rela-
tionships in African moral theory is solidarity. This, too, has an attitudinal
and practical dimension. Relationships of solidarity exhibit a sense of sym-
pathy or caring between the parties. "[C]aring is a matter of people's atti-
tudes such as emotions and motives being positively oriented towards oth-
ers, say, by sympathizing with them and helping them for their sake". 89
These attitudes find practical expression in acts of mutual aid, where indi-
viduals act in such a way so as to benefit each other.90 The focus here is on
other-regarding attitudes and actions.
Solidarity helps further flesh out the acts of identification required in
valuable relationships. The "other" is distinct, yet one can imagine oneself
into their world and one actively stands up for their interests. Exchanges
that exhibit solidarity thus again challenge the very notion that self-interest
is at the heart of any such connection; rather, the focus is on other-
regarding action and standing by and with one's colleagues and partners.
This attitudinal shift is important and can help advance a more equal form
of relating even where the outward actions of the parties are asymmetrical.
Consider, for instance, a transfer of resources from a law school in the
North to a law school in the South for the purposes of acquiring advanced
Internet research capabilities. On its face, this appears to be a simple act of
aid, with the North (which has a large amount of resources) transferring to
the South (which does not). Yet, an attitude of solidarity means that this is
not done out of a sense of superiority but rather from a genuine desire to
take into account the common interests shared by those in the South and
North and thus to advance the research capabilities of all involved. Solidar-
ity can also mean that in achieving the interests of another, one is in fact
advancing one's own. Such a foundation for acts of aid also means that
there is a real potential for mutuality: the direction of benefit need not be
one way. Whilst the Northern law schools may assist with resources and
funding, the South could always draw on areas in which it is uniquely posi-
tioned to assist the North.
This section has thus sought to consider the implications of a conception
of relationships rooted in African moral theory for exchanges between law
schools in the North and the South. That understanding challenges the idea
that such relationships are only of instrumental value; conceiving them as
89. Thaddeus Metz, African Conceptions of Human Dignity: Vitality and Community as the Grounds
of Human Rights, 13 HUM. RTS REV. 19,26 (2012).
90. Id.
being intrinsically valuable, however, has important implications for how

they are conducted. Immediately, the space of an intrinsic relationship is
one from which moral responsibility flows and attitudes consonant with
equal treatment and mutuality are of central importance. Moreover, such a
conception of relationships also pushes us to re-conceive the very notions of
what constitutes "our" academic community and requires both attitudes of
care and concern as well as practices of mutual aid.
V. CONCLUSION
This paper began by recognizing the increasing globalization of legal

knowledge in the world today. This has led to increasing connections and
exchanges between academics, jurists and law schools in the global North
and South. Part II of this Article charted some of the structural problems
that can arise in these exchanges given the inequalities that exist between
the North and the South. Dynamics of assimilation, dependency, and infe-
riority pose a skeptical challenge to the very value of establishing these re-
lationships. In Part III of this Article, I sought to provide several reasons
why such exchanges can have instrumental value for the achievement of
goals such as attaining justice, understanding truth, and developing skills.
Much of their value, however, rested on the meeting of two parties with
very different social conditions in their home countries. Indeed, to reduce
or devalue these differences is to undermine the very instrumental benefits
of the exchange. The problem is that the conditions of inequality in our
world have led to assumptions that undermine the contributions to be
made by those in the Global South with the North being constructed as "be-
ing older and more experienced," "having more specialized knowledge,"
and "operating under conditions more apt for critical engagement and the-
oretical developments." I sought to show why the conditions for the pro-
duction of knowledge that broadly exist in the South cannot to be regarded
as generally being inferior but in fact have the potential to offer significant
benefits over those prevalent in the North. Ultimately, conditions in both
societies have various strengths and weaknesses and it is in the meeting
place between them that much academic value can be derived.
This argument is based on the instrumental benefits of exchanges to
those in the North and South. A more radical challenge suggests that this
very assumption is itself Northern in character and functions to bolster the
inequalities in knowledge production that exist in our world by sanctioning
the North's used of its own advantages to prioritize its own interests in ex-
changes with the South. The contention is that in order to address the seri-
ous inequalities of resources, a different form or model of relationship
needs to be employed, and I suggested that such a model could be rooted in
some of the central concepts underlying African moral theory, such as ub-
untu. In this understanding of an African world-view, relationships are not
to be valued instrumentally but intrinsically; they must respect the distinct-

ness and identities of each of the parties whilst forging a joint sense of
community; they inherently have a normative dimension and impose du-
ties and rights on each of the parties; and they require both conceptual and
practical acts of identification and solidarity between the parties. These var-
ious elements help to offer an alternative vision of what the nature and
purpose of exchanges between the global North and South should look like.
There is no doubt that the existing inequalities described in this paper pose
a significant challenge to implementing such an "ideal" model. Yet, without
challenging the underlying assumptions that can entrench inequality and
offering an alternative vision, we will be condemned to replicate the status
quo.
In our world today, it is clear that motivations for forming exchanges
and relationships vary. It is not desirable to reject either the model that sees
the value of such exchanges in instrumental terms or the intrinsic African
one: both capture different perspectives on global exchanges and, by identi-
fying them, force us to articulate our own motivations and assumptions in
developing new relationships. Identifying these arguments and under-
standing the different ways of conceptualizing value in these exchanges can
help parties to design the terms of their interactions in ways that at their
core challenge the existing assumptions and realities buttressing the ine-
quality between institutions and individuals in the Global North and South.
Both the instrumental and intrinsic arguments, however, show that cre-
ating exchanges in our increasingly connected world cannot but in some
sense shift concepts of the "local" and "individual": there is a sense in
which individuals and institutions today involved in such relationships
are caught between their local worlds and the worlds of others. This must
to some degree change the perspective of participants in these exchanges:
on the one hand, they will be insiders looking outwards; on the other, their
engagement with "others" allows them to attain a greater external perspec-
tive on the local. Their sense of identity may shift, and become rooted, in
some sense, between worlds. It is this very "between-ness" that is central to
forging new relationships; it creates a space for creativity, criticism and
originality. A state of being in between creates a certain danger of losing
ourselves, yet it also offers many energizing possibilities. I have sought to
consider the very nature and value of the space "in between."
Edward Said beautifully captures the development and importance of
the space in between the Global North and South that many of us inhabit:
It is no exaggeration to say that liberation as an intellectual mission,

born in the resistance and opposition to the confinements and rav-
ages of imperialism, has now shifted from its settled, established,
and domesticated dynamics of culture to its unhoused, decentred,
and exilic energies, energies whose incarnation today is the mi-
grant, and whose consciousness is that of the intellectual and artist

in exile, the political figure between domains, between forms, be-
tween homes, and between languages. From this perspective then
all things are indeed counter, original, spare, strange.9 1
91. SAID, supra note 54, at 403.

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Domestic law appears to be a social phenomenon that is essentially local

* Professor, Department of Public Law, University of Johannesburg; Director of the South

a world characterized by severe inequality. It will seek to conceptualize

place individuals in a stance of moral obligation towards one another. An

II. THE PROBLEM: INEQUALITY AND ITS EFFECTS ON EXCHANGES BETWEEN

A. Inequality between the North and South in the Production

In her important study on the Global North/South division and

dialogue of theory."' 7 Importantly, here, the Global North is conceptualized

17. Id. at 46.

B. The Impact of Inequality on Relationships

If the analysis by theorists like Connell and Bonilla is accepted, it is im-

of socio-economic rights is one that has attracted a burgeoning literature in

formative" in nature42 and seeks fundamentally to change patterns of politi-

III. INSTRUMENTAL BENEFITS OF GLOBAL EXCHANGE AND (RE)VALUING THE

A. Instrumental Benefits of Exchange and Diversity of Con-

In this section, I wish to concentrate on what may be termed the instru-

44. I do not seek to claim that these are exhaustive.

eral constitutional theories and doctrines surrounding judicial review and

B. Challenging Unequal Valuations of the Global North and

1. The 'Old' and the 'New'

South to innovate in ways that extend beyond the possibilities articulated in

2. Being Specialist versus Being Generalist

verse areas of a field such as constitutionalism relate to the particular socie-

3. Detachment versus Involvement

volvement" as opposed to "detachment" thus changes the agenda and fo-

54. EDWARD SAID, CULTURE AND IMPERIALISM 399 (1994).

pointed, and have shown a strong predictive relationship in this regard.58

IV. THE INTRINSIC VALUE OF EXCHANGES: AN AFRICAN PERSPECTIVE

I have argued that instrumental benefits of exchanges between law

64. See, e.g., Sunstein, supra note 32, at 36-37.

However, one might argue that a focus on instrumental benefits does

A. Relationships in African Moral Theory and Law

Mbiti here expresses the strong conception of the relationship between

of some relevance to the values we need to uphold. It is a culture

70. S v Makwanyane, 1995 3 SA 391 (CC) para 308.

the demands of the relational character of the person in the wake of

73. See also POLYCARB IKUENOBE, PHILOSOPHICAL PERSPECTIVES ON COMMUNALISM AND

Westerners have in many occasions been surprised at the capacity

We believe in the long run the special contribution to the world by

80. Id. at 45-46.

Towards an African model of global relationships?

1. Relationships as ends in themselves

As we have seen, in the African philosophical world-view outlined

2. Relationship and Dialogue

cond, for a conversation to continue and be enjoyed by both parties, each

3. Relationships and their moral implications

being intrinsically valuable, however, has important implications for how

This paper began by recognizing the increasing globalization of legal

to be valued instrumentally but intrinsically; they must respect the distinct-

It is no exaggeration to say that liberation as an intellectual mission,

grant, and whose consciousness is that of the intellectual and artist

91. SAID, supra note 54, at 403.

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