Colonial law and the formation of the nation-state
Colonial law
As the history just surveyed suggests, a proper understanding of nation-building in the Arab world requires that we delve deeper into the question of how the structures of the nation-states built in the postcolonial era were shaped by the different forms of colonization to which they were subject. In this deeper probing of the question, colonial law provides us with a vantage point from which to gain insight into both the organizational blueprint used to achieve domination and the ideology deployed to legitimize the same endeavour.
One place we can turn to for such a vantage point is a textbook the Italian jurist Santi Romano wrote in 1918 in which, with characteristic clarity, he lays out the basic principles of colonial law. With analytical and “scientific” detachment, Romano maps out a taxonomy of forms of colonization, weighing in with commentary only when he feels sympathetic to the aims of the colonial process.
Romano distinguishes three types of colonization based on its different aims, all of them involving “a social body, a specifically organized collectivity” undertaking to “nurture [coltivare], populate, subjugate, etc.” another country (Romano 1918, 8-9; my translation). These activities can be carried out by public or private entities (ibid., 9), but Romano restricts his investigation to the public: he is only concerned with activities undertaken by means of public powers, that is, by means of the state. He further restricts his field of view to what he refers to as external state colonization, describing it as the activity a state undertakes in a foreign country or in territories deemed to be nullius, which remain such (ibid., 9).
But external colonization also includes cases in which one country appropriates or subjugates another one, as Italy did in Eritrea, Somalia, and Libya (ibid., 10). As Romano explains, the reason why colonization counts as external in these cases, too, is that the legal-political order of the colonizing country, or metropole, remains clearly distinct from that of the subjugated country. In
1
In this regard see the perspicuous analysis in Nuzzo 2012, 266ff.
Colonial law and the formation of the nation-state 93 short, the colonizing power makes a unilateral decision establishing a distinct regime for the conquered country.
This point holds a place of particular significance in Romano’s exposition, for it is here that Romano makes explicit the ideological reason why the metropole should refuse to effect a fusion with the colonized country: “the country held in subjection as a colony,” he explains, “is marked by an inferior civilization, and for this reason is chosen by the colonizing state as the theatre of its colonizing activity” (ibid.).
But as Romano also points out, “civilization” is a relative concept, not an absolute one, for it may happen that a colony’s civilization is not inferior to that of the metropole, as is the case with certain colonies of England. This means that “the concept of civilization and that of barbarism are not amenable to any absolute determination, for they can only be assessed by looking at two countries in comparison—a comparison that can be made from points of view that may be subjective and hence, in a sense, arbitrary” (ibid., 11). If this comparison should reveal a difference in the degree of civilization—in economic, intellectual, or social terms—then the conditions are in place for a country of “inferior civilization” to become a colony.
In a display of intellectual honesty, however, Romano goes on to remark that the purpose of colonization is not to civilize, “for colonization is a phenomenon of political expansion, its primary purpose residing in the advantage of the metropole” (ibid., 12; italics added). He does say that the metropole’s colonial venture may “tend not only to its own interests but also to those of the colonized territory,” but he is quick to point out that “this latter purpose is subsidiary and complementary to the former” (ibid.). Indeed, as he also clarifies, the concern of colonization rests not with the people but with the territory, whose resources it wants to exploit, and that is why the development of the colonized country’s civilization can only be a secondary effect, certainly not its primary purpose. In short, colonization “is not a work of protection and charity toward inferior peoples; it is instead an assertion of power and domination” (ibid., 13).
Having laid this theoretical groundwork, Romano can now proceed to a classification of the various forms of state colonization: these can be (i) colonies for trade and commerce, (ii) resource-exploitation or industrial colonies; (iii) population colonies, meaning that they are meant to be populated by people emigrating from the mother country; and (iv) military, penal, or deportation colonies (ibid., 14-15).
Romano next turns to “colonial science,” noting that this is actually a plural science comprising a multitude of “colonial disciplines” reflecting the complexity of colonial phenomena, the disparity between the metropole and its colonies, and the multiplicity of the purposes of colonization. And so, according to Romano, these disciplines were best distinguished “not so much by subject matter as in light of the special point of view from which colonization is investigated” (ibid., 16-17), which can be that of the physical and natural sciences, of the economic sciences, of the social and political sciences, or of legal science (ibid., 16-21).
The political science of colonization is a “practical doctrine” (ibid., 19), concerned “in the first place with examining the advantages and disadvantages of colonization, its dangers, and so forth, relative to the state’s other aims” (ibid., 20). This science is further concerned with analysing the colonies’ organizational forms, meaning the administrative machinery with which the colonial power needs to equip the colonized power, considering that colonial policy needs to be based on principles that are specific to the colonies and different from those that govern in the mother country (ibid.).
More complex is the discussion Romano devotes to the sciences in the last group, analysed under the broad rubric of colonial law, which he describes as a “heterogeneous” body of law, in that “the provisions it consists of are not all of the same nature but can be made to fall under the many branches into which the legal encyclopaedia is divided [...]. Indeed, colonial law takes in elements from international law, especially in what concerns the acquisition or loss of colonies [...]; constitutional law, insofar as the acquisition or loss of colonics brings about changes in the state’s territory [...]; administrative law, which governs the way colonics are to be organized; [...] ecclesiastical law, which is of great importance here because religion cuts across a large swath of colonial life, and sometimes even pervades it entirely. And even judicial law plays an important part in colonial law.” Indeed, “the administration of justice is perhaps the activity of the state that is most pertinent to the indigenous populations, in dealing with which it is, in this area, indispensable to respect their traditions and customs” (ibid., 21-22).
Santi Romano defines colonial law as “special law. this means that it consists of a complex of particular provisions distinct from those forming the common law of the state, which governs the métropole” (ibid., 22; italics added). He then turns to the sources of colonial law, in an analysis that reveals how complex this law is. Indeed, part of colonial law falls under international law, whose source lies in the “concordant will of a plurality of states” (ibid., 24). Another source of colonial law lies in the “will of the state to which the colony belongs” (ibid.), and sometimes even in “legal norms that are not laid down by the state the colony is dependent on but are anterior to, and thus preexist, the acquisition of the colony” (ibid.). Colonial law can indeed contain “a sizable part of the Muslim law that was in effect before occupation” (ibid.; italics added) by the colonizing power, whose laws can make express reference to it.
