Transformative Constitutionalism and Land Rights: South Africa and Brazil

Brazil and South Africa have historical legacies and ongoing realities of intense racialized inequality and land injustice related to colonial dispossession and neoliberal private property capture. Against the backdrop of colonial and authoritarian rule, over the past 40 years both countries have pursued wide-ranging constitutional reform aimed at moving sociopolitical and material conditions in a more accountable, egalitarian direction. In both countries, the new constitutions have entrenched an expanded oversight role for the judiciary, including over land rights. We do not suggest that courts are the only or even the main agents of change; however, we do claim that in such countries judges (as constitutionally empowered actors) have the potential to advance change. As scholars interested in the role of courts in post-authoritarian constitutional orders in advancing access to land, in this review we examine the nexus of sociolegal scholarship on land rights adjudication in Brazil and South Africa with that on transformative constitutionalism (TC), as arguably the most prominent lens through which post-authoritarian constitutions are analyzed in sociolegal studies. Finding that the sociolegal literature on collective land rights cases does not directly use TC framing, we outline why and how we think using a TC lens could be a useful way to analyze land-related rulings in countries with post-authoritarian (transformative) constitutions.