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Orientalist Constitutionalism: How Western Imperialism influenced the rise of the post-colonial state

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Abstract

In the continuing struggle to arrive at a post-colonial world, constitutionalism is entrenched in the Global South as the dominant form of state building, theoretically allowing younger states to build stable governments supported by independent economic and political systems. However, much scholarship of constitutionalism continues to conflate the experiences of post-colonial and uncolonised states, ignoring the difficulties faced by newly independent nations in building systems without Western influence. This paper argues for recognition of a distinction between the constitutionalism of the colonised and the colonisers, manifested through the contemporary system of neo-colonialism. It places particular focus on Lebanon, a unique confessionalist constitutional system created by French colonial powers which provides an understanding of the western interest in preserving colonial-era economic and political control in an eventual independent state. From this case, the paper expands on three forms of neo-colonialism by which the West creates neo-colonial relationships through post-colonial constitutionalism. I trace these ‘orientalist’ constitutional systems through economic dependence and permanent imperialism, neoliberal globalist institutions, and foreign interventionism through a number of cases. I then return to the case of Lebanon to examine how these forms of neo-colonialism are not mutually exclusive, and exist in post-colonial states in combination, forcing constant Western exploitation and constitutional power.

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Notes

  1. Most colonial governments across the world were dissolved during this period, either through armed revolution, such as the case of Algeria following violent years long revolution, or as in Lebanon, through slow and steady agreements with France, while over the years the country stood as a mandate.

  2. Andreas Wimmer and Yuval Feinstein, ‘The Rise of the Nation-State across the World, 1816 to 2001’ (2010) 75(5) American Sociological Review 764.

  3. Bruce Ackerman, 'The Rise of World Constitutionalism' (1997) 83(4) Virginia Law Review 781.

  4. Ibid.

  5. Bruce Ackerman, Revolutionary Constitutions: Charismatic Leadership and the Rule of Law (Harvard University Press 2019) 28–29, 37. This reference is to the model Bruce Ackerman introduces in this book. Through a four stage process under categories Ackerman refers to as ‘Times’, a state undergoes constitutionalism, with revolution giving way to stable liberal development. As referred to, Time 1 is characterised as a popular revolution that gives way to a charismatic leader standing as the nation’s hero, now with the ability to craft a new constitutional order.

  6. Gurminder K Bhambra, ‘Beginnings: Edward W Said and Questions of Nationalism’ (2006) 8(1) International Journal of Postcolonial Studies 4.

  7. Johann Gottfried von Herder, ‘Letters for the Advancement of Humanity (1793–7)’ in Michael N Forster (ed), Herder: Philosophical Writings (Cambridge University Press 2002) 380–424.

  8. ‘De Gaulle and the new French Constitution’ (1959) 3(2) Section of International and Comparative Law Bulletin 3.

  9. Edward W. Saïd, Orientalism (Penguin Books 2019) 1.

  10. Sabelo J Ndlovu-Gatsheni, Do "Zimbabweans" Exist?: Trajectories of Nationalism, National Identity Formation and Crisis in a Postcolonial State (Peter Lang 2009) 5.

  11. Bhambra, ‘Beginnings’ (n 6).

  12. See Judith Butler and Gayatri Spivak, Who sings the Nation-State?: Language, Politics, Belonging (Seagull Books 2007); Hannah Arendt, The Origins of Totalitarianism (Schocken Books 1951).

  13. Bhambra, ‘Beginnings’ (n 6)

  14. Ibid.

  15. https://www.britannica.com/place/Lebanoan/French-mandate. Accessed 15 March 2023.

  16. Fawwāz Traboulsi, A History of Modern Lebanon (Pluto Press 2007) 75.

  17. Ibid. 76.

  18. Ibid. 78–79.

  19. Ibid. 80.

  20. Aziz Rana, ‘Constitutionalism and the Predicament of Postcolonial Independence’ in Richard Albert (ed) Revolutionary Constitutionalism: Law, Legitimacy, Power (Oxford: Hart Publishing 2020) 71–90.

  21. Ibid.74.

  22. Kwame Nkrumah, Neo-Colonialism: The Last Stage of Imperialism (Heinemann 1970).

  23. Ibid.1.

  24. Ibid.

  25. Rana ‘Constitutionalism’ (n 20) 79.

  26. https://www.britannica.com/topic/Robert-Mugabe-on-Zimbabwe-1985189/The-Lancaster-House-Negotiations. Accessed 14 April 2023.

  27. Kariuki G Godfrey, ‘Lancaster Constitutional Negotiation Process and its Impact on Foreign Relations of Post-Colonial Kenya, 1960–1970’ (Thesis, University of Nairobi 2015).

  28. Alon Harel, ‘A Defense of Non-Representational Constitutionalism: Why Constitutions Need Not Be Representational’ (2020) 14(2) The Law & Ethics of Human Rights 182.

  29. Rana ‘Constitutionalism’ (n 20) 81–82.

  30. https://www.britannica.com/biography/Jomo-Kenyatta/Return-to-Kenya. Accessed 16 March 2023.

  31. Catherine Besteman, ‘Violent Politics and the Politics of Violence: The Dissolution of the Somali Nation-State’ (1996) 23(3) American Ethnologist 579.

  32. Patrick Gathara, ‘Berlin 1884: Remembering the Conference that Divided Africa’ (Al Jazeera, 15 November 2019). https://www.aljazeera.com/opinions/2019/11/15/berlin-1884-remembering-the-conference-that-divided-africa. Accessed 16 March 2023.

  33. See I M Lewis, ‘Force and Fission in Northern Somali Lineage Structure’ (1961) 63(1) American Anthropologist 94.

  34. Abdulahi A Osman, ‘Cultural Diversity and the Somali Conflict: Myth or Reality?’ (2008) 7(2) African Journal on Conflict Resolution 93.

  35. Catherine Besteman, ‘Representing Violence and “Othering” Somalia’ (1996) 11(1) Cultural Anthropology 123–126.

  36. Ibid. 124.

  37. https://www.bbc.com/news/world-africa-14094503. Accessed 15 March 2023.

  38. https://www.britannica.com/place/Somalia/A-new-government. Accessed 14 April 2023.

  39. Jeffrey G Karam, ‘Beyond Sectarianism: Understanding Lebanese Politics through a Cross-Sectarian Lens’ (2017) 1 Middle East Brief 107.

  40. Doug Bandow, Perpetuating Poverty: The World Bank, the IMF, and the Developing World (Cato Inst. 1994).

  41. Ibid. 1.

  42. Ibid.

  43. Kevin Danaher, ‘Introduction’ in Kevin Danaher (ed) Fifty Years is Enough: Case against the World Bank and the International Monetary Fund (South End Press 1999).

  44. Ibid.

  45. Ibid. 2.

  46. Ibid.

  47. Yves Dezalay and Bryant G Garth, The Internationalization of Palace Wars: Lawyers, Economists, and the Contest to Transform Latin American States (University of Chicago Press 2002) 97.

  48. Marcos Arruda and Kevin Danaher, ‘Brazil: Drowning in Debt’ in Danaher, Fifty Years is Enough (n 43) 44–50.

  49. Ibid. 46.

  50. Arturo Alvarado, ‘The Brazilian Constitution of 1988: A Comparative Appraisal’ (2018) 5(3) Journal of Constitutional Research 137.

  51. Dezalay and Garth, The Internationalization of Palace Wars (n 47).

  52. Ibid. 6.

  53. Kais Firro, ‘Silk and Agrarian Changes in Lebanon, 1860–1914’ (1990) 22(2) International Journal of Middle East 151.

  54. Article 1, Banking Secrecy Law of 3 September 1956.

  55. https://www.synaps.network/post/lebanon-economy-crisis. Accessed 14 March 2023.

  56. Lydia Assouad, Lebanon's Political Economy: From Predatory to Self-devouring (Carnegie Middle East Center 2021) 4.

  57. See James L Dietz ‘Destabilization and Intervention in Latin America and the Caribbean’ (1984) 11(3) Latin American Perspectives 3.

  58. Noah Feldman, ‘Imposed Constitutionalism’ (2005) 37(4) Connecticut Law Review 857.

  59. Ibid. 859.

  60. Ibid.

  61. Ibid. 885.

  62. Ibid. 857.

  63. Aslı Bâli and Aziz Rana, ‘Constitutionalism and the American Imperial Imagination’ (2018) 85(2) The University of Chicago Law Review 257.

  64. Ibid. 258.

  65. Ibid.

  66. Davisom Budhoo, ‘IMF/World Bank Wreak Havoc on Third World’ in Danaher (ed) Fifty Years is Enough (n 43) 20.

  67. Bâli and Rana ‘Constitutionalism and the American Imperial Imagination’ (n 63) 267–268.

  68. Pax Americana, modelled after the concept of Pax Romana, is the idea of an era existing after World War II of relative peace in the Western Hemisphere. Bâli and Rana argue that this led to the US legitimising its sense of itself becoming the world peace power to extend the pax.

  69. Bâli and Rana ‘Constitutionalism and the American Imperial Imagination’ (n 63) 268.

  70. Balsam Mustafa, ‘We Iraqis had Survived Saddam Hussein. It was the US Invasion that Destroyed our Lives’ (The Guardian, 17 March 2023). https://www.theguardian.com/commentisfree/2023/mar/17/iraqis-saddam-hussein-us-invasion-country. Accessed 18 March 2023.

  71. The temporary government of Iraq set up by coalition forces following the invasion.

  72. See Feisal Amin Rasoul al-Istrabadi, ‘A Constitution without Constitutionalism: Reflections on Iraq's Failed Constitutional Process’ (2009) 87(7) Texas Law Review 1627.

  73. Ibid.1628.

  74. Ibid.1633–1634.

  75. Ibid.1641.

  76. Ibid. 1628.

  77. Rana ‘Constitutionalism’ (n 20) 71–90.

  78. al-Istrabadi ‘Reflections’ (n 72) 1654.

  79. https://www.britannica.com/event/Sykes-Picot-Agreement. Accessed 18 March 2023.

  80. Referencing to what has become a staple of European colonialism: the redrawing of political boundaries to carve out colonial states to split amongst colonial powers without regard to existing political, ethic, religious, cultural, etc. boundaries. The Berlin Conference of 1844–1855 serves as the most well-known example of this in which European powers ‘carved up Africa’. A very similar process ensued following the fall of the Ottoman Empire to carve up territories of the Middle East between Britain and France.

  81. French for ‘civilising mission’. European rationale for the colonial endeavour, ‘uncivilised lands in need of western help.’ As Saïd would put it, Orientalist logic in a nutshell. See Asher Kaufman, ‘Phoenicianism: The Formation of an Identity in Lebanon in 1920’ (2001) 37(1) Middle Eastern Studies 176.

  82. Fawwāz Traboulsi, A History of Modern Lebanon (Pluto 2007) 75.

  83. Kaufman ‘Phoenicianism’ (n 81) 178.

  84. Traboulsi, A History of Modern Lebanon (n 82) 92.

  85. ‘Constitutional Orientalism.’ See next footnote for further explanation, but this is my term to describe the process by which colonial powers hijacked the constitutionalism of the colonised world in order to create states that would serve the interests of the West. Lebanon serves as a prime example of ‘constitutional orientalism.’

  86. Saïd ‘Orientalism’ (n 9) 113.

  87. As Ackerman describes his case studies in Revolutionary Constitutions, the independent European states were able to form their national identities and constitutional systems on their own without external influence. Ackerman mentions the cases of France, Italy, and Poland as examples of this, but misses the point that Europe enjoyed this independence in its constitutionalism while the colonised world did not. See Ackerman ‘The Rise of World Constitutionalism’ (n 5) 772 for more.

  88. Saba Habachy, ‘The Republican Institutions of Lebanon: Its Constitution’ (1964) 13(4) The American Journal of Comparative Law 600.

  89. Lebanese Constitution. See also https://carnegieendowment.org/2016/12/16/religious-authority-and-sectarianism-in-lebanon-pub-66487. Accessed 14 April 2023.

  90. Maya Mikdashi, ‘Sextarianism: Notes on Studying the Lebanese State’ in The Oxford handbook of Contemporary Middle Eastern and North African History (Oxford University Press 2018) 1.

  91. A reference to the quote I used previously from Orientalism in which Saïd describes the process by which the Orient is ‘submitted’ to being. Applying the idea to the events that played out in Lebanon to ‘orientalise’ the country by the French.

  92. https://www.britannica.com/event/Lebanese-Civil-War. Accessed 18 March 2023.

  93. Kaufman ‘Phoenicianism’ (n 81) 173.

  94. https://www.britannica.com/event/Lebanese-National-Pact-1943. Accessed 14 April 2023.

  95. For further context–seats in the Lebanese parliament are divided based on sect, and the relative population of each sect based on the most recent census, which was recorded in 1932. This resulted in a 6:5 proportion of Christian seats, divided amongst Maronites, Greek Orthodox, and smaller Christian sects to Muslim seats, divided amongst Sunnis, Shias, Druze, and smaller sects. Following the Taif Agreement, this was modified slightly to make the proportion of the Christian sects' seats equal to the Muslim sects.

  96. https://peacemaker.un.org/lebanon-taifaccords89. Accessed 18 March 2023.

  97. Sheila Ryan, ‘Israel’s Invasion of Lebanon: Background to the Crisis’ (1982) 11(12) Journal of Palestine Studies 23.

  98. Augustus Richard Norton, ‘Hizballah and the Israeli Withdrawal from Southern Lebanon’ (2000) 30(1) Journal of Palestine Studies 22.

  99. Le Jour, ‘Lebanon Needs a Lebanese-Not Iranian-Saudi-Rapprochement: Saudi Foreign Affairs Minister’ (L'Orient Today, 11 March 2023). https://today.lorientlejour.com/article/1331132/lebanon-needs-a-lebanese-not-iranian-saudi-rapprochement-saudi-foreign-affairs-minister.html. Accessed 14 April 2023.

  100. David Humphreys, ‘The Reconstruction of the Beirut Central District: An Urban Geography of War and Peace’ (2015) 6(4) Spaces and Flows: An International Journal of Urban and Extra Urban Studies 1. Humphreys analyses the impact of the civil war on Beirut residents and their collective response.

  101. Thomas L Friedman, From Beirut to Jerusalem (Farrar, Straus and Giroux 2014).

  102. Humphreys ‘The Reconstruction of the Beirut Central District’ (n 100).

  103. Nadia Karizat, ‘The Story of Public Space in Beirut's Geography of Power’ (2019) Agora Journal of Urban Planning and Design 36.

  104. ‘Infographic: How Big was the Beirut Explosion?’ (Al Jazeera, 4 August 2022). https://www.aljazeera.com/news/2022/8/4/infographic-how-big-was-the-beirut-explosion. Accessed 18 March 2023.

  105. Sahar Atrache, ‘Lebanon Needs an Aid Paradigm Shift’ (Al Jazeera, 16 March 2021). https://www.aljazeera.com/opinions/2021/3/16/lebanon-needs-an-aid-paradigm-shift. Accessed 18 March 2023.

  106. https://www.hrw.org/news/2022/12/12/lebanon-rising-poverty-hunger-amid-economic-crisis. Accessed 18 March 2023.

  107. Ndlovu-Gatsheni ‘Zimbabweans’ (n 10) 6.

  108. Paul T Zeleza, ‘Imagining and Inventing the Postcolonial State in Africa’ (2003) 1(1) Contours: A Journal of the African Diaspora 101.

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    Sami Banat

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Banat, S. Orientalist Constitutionalism: How Western Imperialism influenced the rise of the post-colonial state. Jindal Global Law Review 14, 49–75 (2023). https://doi.org/10.1007/s41020-023-00188-x

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