Confronting Founding Injustices: Reconstructive Constitutional Adjudication and Constitutional Legitimacy in Postcolonial States

Author

• Mutasim Abuzeid, Chapman UniversityFollow

Date of Award

Summer 8-2026

Document Type

Thesis

Degree Name

Master of Arts (MA)

Department

International Studies

First Advisor

Dr Kwon Minjui

Second Advisor

Dr Angela Laderach

Third Advisor

Dr Andrea Molle

Abstract

Why do some postcolonial constitutions achieve higher constitutional legitimacy than others? Across the Global South, constitutions have proliferated while legitimacy remains uneven and contested. Existing scholarship explains variation in constitutional legitimacy in postcolonial states through three dominant paradigms. Institutionalist theories equate legitimacy with procedural design and endurance, presuming that stable institutions generate compliance and, over time, diffuse support. Transformative constitutionalism locates legitimacy in social justice, emphasizing judicial doctrines such as proportionality and reasonableness to advance equality and material inclusion. Transitional justice approaches, by contrast, locate moral repair largely outside constitutional law—through truth commissions, reparations, and memory projects—often leaving the constitutional order’s authorizing premises intact. Yet these approaches explain constitutional survival and reform more effectively than they explain constitutional redemption: how constitutions born of injustice become legitimate rather than merely effective, or why some constitutional orders remain marked by enduring constitutional estrangement despite institutional stability.

This project examines how founding justice and judicial reconstruction work together to generate constitutional legitimacy in postcolonial states. Expanding the theory of reconstructive constitutional adjudication (RCA)—which reconceptualizes the judiciary as an agent of moral reconstruction rather than a custodian of inherited legality—I argue that the legitimacy and endurance of postcolonial constitutions are jointly determined by (1) the moral quality of constitutional origin and (2) the capacity of courts to reconstruct that origin through adjudication confronting historical injustice through law. Constitutional origins rooted in exclusion, racial hierarchy, or elite substitution produce low baseline legitimacy. Reconstructive adjudication partially repairs these deficits by integrating historical memory, plural authorship, and reparative reasoning into constitutional interpretation and doctrine. However, only participatory and reparative constitutional formation generates legitimacy capable of stabilizing across time. Where such reconstruction is absent, legitimacy deficits persist not merely as distrust but as constitutional estrangement—compliance without belonging and legality without moral identification.

Using comparative case studies of thirteen jurisdictions—Sudan, Nigeria, Kenya, Ethiopia, Ghana, South Africa, Bolivia, Colombia, Ecuador, Chile, Canada, Australia, and New Zealand—I demonstrate a systematic pattern in legitimacy outcomes across founding types: the highest legitimacy where inclusive and reparative constitutional formation is paired with sustained reconstructive jurisprudence; moderate legitimacy where RCA partially compensates for weak or elite-driven constitutional origins; and persistent fragility where both founding injustice and judicial continuity prevail. Through qualitative process tracing of constitutional formation, institutional encoding, and subsequent judicial responses to founding injustice, drawing on constitutional texts, assembly debates, and landmark judicial decisions in South Africa and Bolivia, alongside the documented absence of reconstructive jurisprudence in Sudan, I show that participatory and reparative constitutional formation generates legitimacy rooted in recognition and constitutional authorship, which courts can subsequently deepen through reconstructive adjudication; that continuity-based constitutional formations—represented most clearly by Sudan as the thesis’s principal negative case—produce entrenched legitimacy deficits that courts cannot remedy within inherited constitutional continuity absent constitutional reorigination; and that hybrid rupture-only constitutional formations enable partial but structurally incomplete forms of moral reconstruction.

This project contributes to the literature on constitutional legitimacy and postcolonial constitutionalism by reconceptualizing constitutional adjudication as a practice of historical justice within postcolonial constitutional orders and by providing comparative evidence of how constitutions transition from inherited legality toward collectively authored legitimacy through participatory constitutional formation and reconstructive constitutional adjudication.

Creative Commons License

This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License.

Recommended Citation

Abuzeid, Mutasim. "Confronting Founding Injustices: Reconstructive Constitutional Adjudication and Constitutional Legitimacy in Postcolonial States." Master's thesis, Chapman University, 2026. https://doi.org/10.36837/chapman.000753