Ivor Jennings's Constitutional Legacy beyond the Occidental‐Oriental Divide

Published date01 March 2015
DOIhttp://doi.org/10.1111/j.1467-6478.2015.00700.x
Date01 March 2015
JOURNAL OF LAW AND SOCIETY
VOLUME 42, NUMBER 1, MARCH 2015
ISSN: 0263-323X, pp. 102±26
Ivor Jennings's Constitutional Legacy beyond the
Occidental-Oriental Divide
Mara Malagodi*
Sir W. Ivor Jennings (1903±1965) was one of Britain's most prominent
constitutional law scholars of the twentieth century. He is mostly famed
for his work in the 1930s on English Public Law. In 1941, Jennings,
however, moved to Sri Lanka, progressively becoming involved in both
an academic and professional capacity with constitutional processes
across the decolonizing world in the early stages of the Cold War. This
article provides an alternative account of Jennings's constitutional
legacy to those of existing scholars by combining orthodox accounts of
the `Occidental Jennings' with an analysis of the neglected `Oriental'
experiences of this influential intellectual. It examines the ambiguous
relationship between constitutionalism and democracy in Jennings's
constitutional work overseas, and the impact of his postcolonial work
on his views on constitutionalism.
INTRODUCTION
This article provides an alternative account of the constitutional legacy of the
noted British constitutionalist Sir W. Ivor Jennings (1903±1965) to those that
can be found in the existing literature. It does so by investigating a neglected
aspect of Jennings's life and work, that is, his extensive constitutional
engagement in former British colonies. Jennings is mostly famed for his
work in the 1930s on English public law, referred to here as the `Occidental
Jennings' to denote the ensemble of orthodox accounts portraying the
constitutionalist's life story, work, and legacy. However, in 1941, Jennings
102
*Department of Law, London School of Economics, Houghton Street,
London WC2A 2AE, England
M.Malagodi@lse.ac.uk
I would like to thank the editors, Linda Mulcahy and David Sugarman, together with
Harshan Kumarasingham, Peter Leyland, Martin Loughlin, Tom Poole, David Taylor,
GreÂgoire Webber, and Asanga Welikala for their helpful comments on this article.
ß2015 The Author. Journal of Law and Society ß2015 Cardiff University Law School
moved to Sri Lanka ± where he resided until his appointment in 1954 as
Master of Trinity Hall in Cambridge ± and became progressively involved in
constitution-making processes in decolonizing countries. I cumulatively
refer to this period of Jennings's life, his academic outputs on the post-
colonial world, and advisory work overseas as the `Oriental Jennings'.
Particularly in British scholarship, the `Oriental Jennings' has remained
almost completely absent from accounts of his life and work, with the result
that Jennings's attitudes and legacy have been conflated with the `Occidental
Jennings'. A number of scholarly works have explored instances of
Jennings's postcolonial constitutional involvement, but these outputs have
tended to result in a piecemeal examination and fragmented picture of the
`Oriental Jennings'.
1
Significantly, no systematic study of Jennings's
constitutional legacy overseas has been produced to date.
2
This article analyses Jennings's constitutional legacy in South Asia where
he was involved, both academically and professionally, with most of the
region's jurisdictions.
3
Jennings played a direct role in the constitutional
frameworks of Sri Lanka (1941±1955), the Maldives (1952±1953), Pakistan
(1954±1955), and Nepal (1958), and had a long-term indirect engagement
with India. It is argued that South Asia represents the core of the `Oriental
Jennings's experience and work. In this respect, it is important to highlight
that Jennings was involved with postcolonial constitutional processes
primarily in a professional capacity. He was one of the leading Western
experts in the early stages of the Cold War, instructed either by the British
government or local political leaders to dispense constitutional advice to
decolonizing nations.
4
It is in this historical context that the embattled
relation ship betwe en democra cy and cons titution alism in Jen nings's
academic and advisory work takes centre stage in the assessment of his
constitutional legacy. In fact, the different ways in which Jennings articu-
lated the relationship between democracy and constitutionalism in Britain
and in South Asia illuminate the contrast between his normative stance on
British constitutionalism and his work as a practitioner overseas. Ultimately,
103
1 A. McGrath, The Destruction of Pakistan's Democracy (1996); J. Fernando, `Sir
Ivor Jennings and the Malayan Constitution' (2006) 34 J. of Imperial and
Commonwealth History 577; and K.M. De Silva, `Ivor Jennings and Sri Lanka's
Passage to Independence' (2005) 13 Asia Pacific Law Rev. 1.
2 At the time of writing, the Institute of Commonwealth Studies (ICS) and the LSE
Legal Biography Project are running a joint initiative to digitize and publish online
the most significant documents in the Sir Ivor Jennings Papers held at ICS. See,
also: H. Kumarasingham, Constitution Maker ± Selected Writings of Sir Ivor
Jennings (2015) and H. Kumarasingham (ed.), Constitution Making in Asia ±
Decolonisation and State-Building in the Aftermath of the British Empire (2015).
3 The expression `South Asia' indicates: Afghanistan, Bangladesh, Bhutan, India,
Maldives, Nepal, Pakistan, and Sri Lanka. During Jennings's life, Pakistan still
comprised the East Wing, which then seceded and became the independent
Republic of Bangladesh in 1971.
4 C. Parkinson, Bills of Rights and Decolonization (2007) 14±15.
ß2015 The Author. Journal of Law and Society ß2015 Cardiff University Law School

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