Comparative Constitutional Law, Colonialism and Empire (Part II)

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Dinesha Samararatne

University of Colombo

This is part II of a two-part blog post (part I can be found here). 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. 

In Part I of this post, I pointed to six points on which academics and more specifically scholars in the field of comparative constitutional law agree in relation to the critique of colonialism and empire. Following from that, I identified five difficulties that we ought to confront in respond to this critique. In this second and final part, I discuss five aspects that I think are significant and require attention if the field is to continue to tackle the enduring impact of colonialism and empire. 

Five Points for Reflection

First, we may have to recognise and be mindful that the personnel and institutions that engage in this field are in relative positions of privilege. Moving beyond the more obvious examples of academics and institutions in intellectually and economically privileged positions, I would even include myself in this relative position of privilege. As a woman academic, currently located in the global south (geographically and otherwise), I experience marginality on numerous occasions. However, I cannot deny my relative position of privilege.  Engagement with constitutional law and comparative constitutional law, in the intellectual and practical realm has been subject to privileged positions in the legal academia, legal practice and politics. If the critiques of exclusivism are to be dealt with, we would have to deal with this structural problem. One might even ask whether the very inquiry of constitutional law is inescapably an elite discourse overall?

Second, law and in particular, comparative constitutional law, is Euro and American centric in origin and remains so to a great extent today. There are several reasons for this. Historically, the institutions and principles associated with constitutional law were not only developed in Europe and in the United States of America but exported to the rest of the world. Partly because of these historical realities, even today, North America, Europe and their representatives lead the way in terms of agenda setting and theory building. However, the importation of constitutional systems and ideas were neither automatic nor uniform. The British Empire had a strategy of co-opting existing power structures in colonized territories and adapting the establishment of constitutional systems accordingly. For instance, Ivor Jennings introduced a Bill of Rights in the Constitution for Burma but not for Ceylon.  Moreover, one of the key drivers of legal reform is legal transplantation and the migration of legal and constitutional ideas. This raises an interesting question about hybridity, about how constitutions can or should be adapted to the particular context.

A third aspect is that of comparative methods. What are the implications of taking on board the critique of colonialism and empire to the comparative method? What is the threshold level for comparison – whether it be in terms of the number and spread of jurisdictions we study when developing theory or the level of detail in comparison? Which jurisdictions are routinely excluded from studies that claim to be ‘global’? Why should the state be the default unit for comparison? To some extent the ongoing debate about Small-N and Big-N studies and about comparative constitutional studies deal with these questions but more work remains to be done, for instance, in thinking about other means of ordering society including by indigenous communities. 

A fourth is the problem of universalization from the particular. Increasingly we are aware that constitutional values, principles and constitutional design are bounded. Context matters. If that is the case, we should also acknowledge the limits to theory building from those specific contexts. Zaheer Barber describes this as violence of abstraction and as conceptual violence. In other words, single case studies ought to be used as single case studies. Scholars ought to be cautious about universalising from such studies. Universalizing from the specific can also have a normative impact and the normative impact leads to the identification of deviants. 

A fifth issue is about agenda-setting. Who decides the main questions of the field? On what basis are issues prioritized? Which publishers and journals are privileged in these processes? Whose voices do we seek out and listen to? What does impact mean? These questions should be dealt with in context specific ways. As a Co-Editor of the IACL Blog, I have had the privilege of actively promoting academic blogging on understudied jurisdictions and issues. This work has made me aware of the rich possibilities in the field and how my perspective on what is critical (or not) changes, based on my perspective and positionality. 

The Way Forward?

Postcolonial and decolonial critiques of scholarship will continue to disrupt mainstream intellectual pursuits, often in useful ways. For Comparative Constitutional Law, these critiques present critical points for self-reflection. However, self-reflection might be most usefully done if we are also mindful of the limits to these critiques including that of essentialism and exclusion. This cannot be an exercise undertaken in broad brushstrokes. Rather self-reflection might be done best if we confront the complexities of colonialism and empire including the troubled relationships we have with the law and the intensities with which we rely on categories in comparative work and in using legal remedies. A possible ramification of a decolonial critique is that it will somewhat fragment the field. More emphasis on single-jurisdiction studies and a more qualified approach to theory building can broaden the field. It may negatively impact the normative commitments that underlie.  It would most certainly make it harder to present grand theoretical claims. 

The critique of colonialism and empire, then, can be understood as a call to adopt a critical approach to the study of how to use history, to be self-reflective of our positionality and to pay attention to the bounded nature of what we study. It may also be a call to accept the normative effects of constitutionalism (and therefore its risks) and its elitist nature. 

Finally, it is also a call to confront the limits to human agency in relation to constitutional theory, design, implementation, interpretation etc. Debates that are critical of the anthropocentric approach in constitutional law already exist. But beyond that, it would be useful to identify and deconstruct the assumptions about human agency that underlie the subject. If this is accompanied by a critical perspective of history, we might then be able to consider, in a suitably qualified way, the possibilities for human agency in comparative constitutional law.  

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 II)’ IACL-AIDC Blog (26 Oct 2021) https://blog-iacl-aidc.org/2021-posts/2021/10/26/comparative-constitutional-law-colonialism-and-empire-part-ii.