Comparative Constitutional Law, Colonialism and Empire (Part I)

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Dinesha Samararatne

University of Colombo

This is part I of a two-part blog post. Some of the ideas discussed in these posts were presented at a panel discussion convened by ICON-S ‘Comparative Constitutional Law, Colonialism and Empire’ (15 October, 2021). My ideas were shaped and enriched by the generous guidance offered by several colleagues. I would like to acknowledge specifically the guidance offered by Prof Harshana Rambukwella, the Open University of Sri Lanka and Associate Prof William Partlett, University of Melbourne, Australia. My thanks also to my co-editors Dr Erika Arban, Dr Mariana Velasco-Rivera and to Dr Anna Dziedzic for their feedback. All errors, remain, my own. 

Many Comparative Constitutional Law enthusiasts may be late to the party. For decades, scholars in many other disciplines (history, political science, literature, etc.) have been debating the implications of colonialism and empire in their chosen field of inquiry. As with other aspects of study in our field, we may now be compelled to learn from their work. In part I of this blog post, I identify the academic common ground that exists on the question of colonialism and empire and the common ground in the steps that scholars of comparative constitutional law have taken in terms of taking on board the critique of colonialism and empire. I then turn to discuss five challenges that we encounter in our field when taking on board this critique. In part II of this post, I suggest five points for reflection in integrating this critique to how we ‘do’ comparative constitutional law. 

Common Ground

Given the sometimes contested nature of debates on this theme, I think it is helpful to identify what we can agree upon. When writing about colonialism and empire as an ‘academic’ I could name and list six aspects on which there is some consensus. First, many agree that colonialism was/is violent, exploitative, and oppressive. We recognize that academic debate and reflection on these issues ought to take place as a corrective to a historical and intellectual injustice. But it is from this very story of oppression and violence that the story of constitutions and constitutional governance emerge for many, if not most, colonized societies. Around the same time, the metropoles of different empires developed their own ideas about constitutional governance. 

A second point of broad agreement is that colonialism and imperialism cast their long shadow even today. As Emmanuel Saada points out in her work, colonialism, in fact, exists in real forms in the so called ‘self-governing territories’ of France. For those who were raised in colonized societies and introduced in such societies to the study of law, the law is in fact one of the concrete methods by which colonialism persists. The codification of personal/customary laws in South Asia under colonial rule and the codification of Victorian morality through criminal law are two examples. These discriminatory laws exist to date.  In Sri Lanka, activists have been demanding that these laws be reformed to guarantee substantive equal rights for women but successive governments have failed and even refused to amend these laws. Several governments in the Commonwealth continue to enforce Victorian morality through colonial penal legislation. Many (scholars, activists, legal practitioners, citizens etc.) therefore have a troubled relationship with the law. Constitutions and constitutional law, as the supreme law and source of legal authority, are at the heart of this entanglement and troubled relationship. 

A third point of agreement is that in the present moment, one way to address the negative impacts of colonialism and empire is to be inclusive and representative in academia. This takes many forms – some tokenistic and some substantive. Inclusive academic discussions, more representation in academic writing and in some cases affirmative action as a corrective to historical exclusion and injustice are among the different ways to tackle the problem. But, even the most well-meaning efforts in this regard are riddled with challenges. Who decides on the terms of inclusion, how and why? Who is ‘representative’ of what? The answers are not always readily available. There are times when the under-represented still serve as the ‘key informants’ while the more established scholars engage in theory building—the former, therefore, playing only a secondary role. Another vexed problem is that of academic standards and thresholds. In a pluriverse of academic standards, it is not rare to encounter difficulties in seeking diversity in academic activities. Academic activities and standards vary significantly. In seeking to maintain some standards, one may inevitably reinforce a specific subculture and exclude others. 

A fourth point of agreement is that when engaging in this intellectual exercise, we ought to be self-aware and reflective of our positionalities. Self-awareness of our legal training, our access to resources, our academic community etcetera enable us to be conscious of blind spots, biases and potential conflicts of interests. It requires us to articulate the ways in which our relative positions of privilege and marginality impact our thinking and our work. 

The fifth and sixth points of agreement relate specifically to Comparative Constitutional Law. A fifth point is the growing consensus that the field must reach beyond its pre-occupation with the usual suspects. There is consensus that the global south is not just India, South Africa, Colombia or Brazil. Greater inclusivity is emerging as the norm than the exception. The sixth and final point is that there are signs that at least some are reaching a consensus that universal theorization based on specific jurisdictional experiences has very limited insight or relevance. Detailed single jurisdiction-based studies, studied in their bounded context should be best taken to contribute as a single jurisdiction, not as offering theoretical insights of universal relevance. But beyond this, there are several procedural and substantive questions that are unresolved and deserve our attention. I consider five of them below. 

Colonialism and Empire in Comparative Constitutional Law: Five Challenges

First, I agree with the several scholars who have pointed out that intellectual debate on colonialism and empire stems from a sense of nostalgia, loss and even anger about what has been lost due to colonialism. My own country of birth, Sri Lanka, has been colonized (in varying degrees) by the Portuguese, Dutch and the English starting from 1505 until the modern dominion state of Sri Lanka/Ceylon was declared to be independent in 1948. The intellectual efforts are, at least in part, influenced by a desire to establish autonomy and agency over our collective and individual pasts, presents and futures. But I do think that at least some of us recognize that some of these possibilities are foreclosed. I am also mindful, particularly as a woman, that even if that was possible it may not be desirable to ‘go back’, given our modern normative commitments.

Second, engaging in this debate requires that we engage with ‘history.’ History is a sticky problem, particularly for someone like me who has not received any formal instruction on how to study history. But history is everywhere, whether I like it or not. In all my work, I am constantly making assumptions and choices about history.  One of the key problems here is of dealing with the complexity of history. One may desire to reach back into one’s past to retrieve a clear and easy historical past but that is impossible. History is fraught with competing accounts of events etc. How will we, as lawyers, judges and scholars deal with this disharmony?  Anne Orford’s excellent recent intervention International Law and Politics of History can offer our field useful guidance in this regard. 

Third, navigating a debate on colonialism and empire is tricky. It can lead me to repeat the same intellectual moves that I am being critical of. In rejecting Euro-centricity, I may support a similar dominance of nativism. In thinking about the local, I may make the mistake of essentializing identity and in seeking to return to a pre-colonial past or epistemology I may invoke the problematic fiction of authenticity. Taking such positions at a ‘national’ level can and does exclude/marginalize aspirations and voices of communities and individuals who seek to use existing categories and structures to resist injustice. 

Fourth, in engaging in this debate, the nationalist methodology seems inescapable. Again, it has a limiting effect. This is more so in the field of constitutional law where assumptions around the state as the organizing unit are rarely questioned. Whether we like it or not, the nation is the central organising principle of the constitution. 

Finally, in academia, who is the colonized and who can speak for the colonized? If I reject the notion of authenticity, which I do, how do I answer this question? I am not entirely sure. Discussing ‘authenticity’ in the context of nationalism in Sri Lanka, Harshana Rambukwella describes it as ‘punitive discourse’ determining what is ‘allowed in and what is left out.’ In the context of comparative constitutional law, I see notions of authenticity as having similar negative and damaging effects. Speaking from my own experiences, I do think that academic collaboration, within our discipline and beyond, can help us to deal with these questions. Collaboration among diverse academics who engage not as key informants v theory builders but more as fellow travellers in an intellectual journey may, collectively, be able to address these tricky questions. 

Dinesha Samararatne, Senior Lecturer, Faculty of Law, University of Colombo, Sri Lanka and Co-Editor, IACL Blog

Suggested Citation: Dinesha Samararatne, ‘Comparative Constitutional Law, Colonialism and Empire (Part I)’ IACL-AIDC Blog (21 October 2021) https://blog-iacl-aidc.org/2021-posts/2021/10/21/comparative-constitutional-law-colonialism-and-empire-part-i.