Decolonising public international law: Reviving the Madras School of International Thought

The study of Indian public law is fundamentally comparative. This hybrid structure influences the interpretative methods Indian courts use, which are generally more reserved compared to their American counterparts.

Indian courts tend to adopt a more literal method of constitutional interpretation, similar to that of English statutory construction, and place significant emphasis on the doctrine of stare decisis (adhering to precedents). A major difference between the legal systems of India and the US lies in how they overturn judicial decisions.

While the Indian Supreme Court has occasionally overruled constitutional decisions, India's Constitution, with its simpler amending process rooted in the British tradition, plays a more prominent role in such matters. This reliance on stare decisis reflects a more restrained approach to constitutional decision-making in Indian courts, unlike the US system, where courts often take a more proactive and flexible role in interpreting and revising constitutional law.

A significant case that illustrates these differences is In re Delhi Laws Act, 1912, which involved a series of advisory opinions on the validity of three legislative acts. This case highlights the Court's cautious approach to constitutional interpretation and its reluctance to allow the executive to exercise powers that belong exclusively to the legislature. Justice Mukherjea’s opinion in the case, reminiscent of the Schechter case in the US, emphasized that the delegation of legislative power must be consistent with the Constitution’s terms and the principles underlying India’s democratic framework. He argued that the Indian Constitution vests legislative power in Parliament, and that essential legislative functions -such as declaring policy and creating rules of law - cannot be delegated to the executive. In this case, repealing or abrogating laws was deemed an essential legislative function that could not be transferred to the executive branch.

While this decision adheres to precedent and reflects India’s constitutional conservatism, it also embodies a broader principle: that significant political decisions should be made by elected officials who are accountable to the public. However, the Indian legal distinction between allowing the executive to assimilate laws but not repeal them, while crucial in Indian jurisprudence, may not have much relevance in the American legal system. For example, under the Assimilated Crimes Act, upheld in United States v. Sharpnack, state legislatures are delegated the power to amend or repeal laws that are then automatically assimilated into federal law. Under Indian legal principles, this arrangement might be viewed as an improper delegation of legislative power.

Amid these judicial intricacies, the scholarship of Prof CH Alexandrowicz has played a transformative role in shaping India’s approach to international law. Alexandrowicz, who was appointed Professor of International and Constitutional Law at the University of Madras in 1951, made groundbreaking contributions to the field of international law during his decade-long tenure in Madras. He was instrumental in establishing the Indian Yearbook of International Affairs, which served as a platform for promoting the idea of the international rule of law while challenging the prevailing Euro-centric narrative of international law. Alexandrowicz’s scholarship emphasised the importance of understanding international law from a non-Western, particularly an Asian, perspective.

His work sought to uncover the pre-colonial contributions of Asian countries to international law, thus rejecting the view that the global legal order was entirely a product of European imperialism. Alexandrowicz’s focus on India’s historical engagement with international law is particularly significant, as it highlights the role that India and other Asian countries played in shaping the global legal framework before colonialism disrupted these contributions. In fact, his writings offer an essential counter-narrative to the dominant Euro-centric account of international legal history, making his scholarship an important resource for those engaged in the decolonisation of international law.

The importance of revisiting and re-reading Alexandrowicz’s work today cannot be overstated, especially in the context of India’s growing influence in international legal and political forums. India’s historical role as a contributor to international law, as documented by Alexandrowicz, underscores the need for a more inclusive and globally representative understanding of the development of international law. Alexandrowicz’s insights also shed light on the contemporary debates surrounding sovereignty, statehood and self-determination—issues that continue to shape the international legal order in the post-colonial era.

In today’s Chennai, the legacy of Alexandrowicz’s scholarship calls for a revival of the Madras School of International Thought, a term that encapsulates the intellectual contributions made by legal scholars in Madras (now Chennai) during the mid-20th century.

Alexandrowicz was a key figure in this intellectual movement, which sought to challenge the dominance of Western legal thought by incorporating non-Western perspectives and promoting a more pluralistic approach to international law. Reviving the Madras School of International Thought is essential in the present-day context, as it offers a framework for addressing the challenges of a globalised world while respecting the diversity of legal traditions and histories. Chennai, as a city with a rich history of intellectual and legal scholarship, has the potential to become a hub for the study of international law from a non-Western perspective. Establishing Chennai as a center for the study of decolonised international law would not only honour Alexandrowicz’s legacy, but also contribute to the ongoing efforts to create a more equitable and inclusive global legal order. India’s role in this revival is of particular importance. As a leading voice in the Global South, it has the opportunity to shape the future of international law by promoting a more balanced and representative legal framework.

Alexandrowicz’s work highlights India’s historical contributions to international law and emphasizes the need for India to continue playing a proactive role in shaping the global legal order. By drawing on its own legal traditions and experiences, India can help to decolonize international law and promote a more just and inclusive legal system. The revival of the Madras School of International Thought would also contribute to the broader global conversation about the future of international law. In recent years, the field of international law has been transformed by post-colonial critiques that challenge the dominance of Western legal traditions and call for the inclusion of non-Western perspectives. Alexandrowicz’s work serves as a bridge between these critiques and the broader history of international law, offering a path forward for those seeking to decolonise the field.

Public international law, with its focus on state sovereignty, human rights and international cooperation, plays a central role in shaping the post-colonial world. Alexandrowicz’s work reminds us that the history of public international law cannot be fully understood without considering the contributions of non-Western societies and the ways in which colonialism has shaped the development of the international legal order. His legacy in Chennai, as part of the Madras School of International Thought, continues to inspire efforts to create a more just and inclusive global legal order.

Nabeela Siddiqui is an Assistant Professor and Dr Ananth Padamanabhan is the Dean at Vinayaka Missions' Law School (VMLS), Chennai.