Over the last few years, I have been thinking of what decolonisation should mean for legal academics in UK HE specifically. This essay reflects some of my ‘initial’ thoughts on where we are now, regarding decolonisation and law, and what we must think about as we chart a path forward. As part of my reflections and work on this, I am also convening a conference holding on the 13th September 2019: ‘Decolonisation and the Law School.’ Attend if you can.  

 

Introduction

‘The only reason you say that race was not an issue is because you wish it was not. We all wish it was not. But it’s a lie.’ Chimamanda Ngozi Adichie, Americanah

Decolonisation forces us to confront the history and effects of imperialism upon our academic practices in law. As legal academics, it is imperative that we explore what ‘decolonisation’ means for us and what the possibility of decolonised law means for the relationship between law and society. How do we become more aware of, and directly mention, how the law came to be, in tandem with a history of legalised dispossession and othering from humanity? How do we acknowledge how that history has influenced how law is taught, what law is taught, and what law is now, and who the law works for? How do we teach law as the study of social order, and elucidate how racial stratifications in the social are formed and maintained?

Critical thinking is at the core of legal study, yet failing to engage with ‘marginalised issues’ is an impediment to achieving critical thinking. When we do not account for the concerns of various groups that have been ‘othered’, we fail to achieve the positive possibilities of legal study. When our curriculum delivery fails to contextualise the information we transmit, we contribute to this othering. We contribute to othering in many ways: when we teach Locke’s ideas of the social contract theory without mentioning his legitimisation of slavery; when we hold out the concept of a fictional objective ‘reasonable person’ without acknowledging the gendered and raced and classisst boundaries of its  premises;  when we teach in and revere buildings constructed with colonial profits and benefits derived from enslaving human beings; when our curriculum is skewed in favour of domination and privilege; and when our subjects are infused with male ‘voices.’… I could go on.

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Why ‘Decolonisation’?

‘The intellectual project of decolonizing has to set out ways to proceed through a colonizing world. It needs a radical compassion that reaches out, that seeks collaboration, and that is open to possibilities that can only be imagined as other things fall into place.’ Linda Tuhiwai SmithDecolonizing Methodologies

I believe decolonisation takes us a step further than such concepts as equality, diversity, representation, inclusion, as it provides us with a context to confront the structures that necessitate the use of such concepts. Decolonisation requires us to be intentional about engaging with Britain’s history of very active participation in slavery and colonization, as well as the complicity of academics and universities in enabling, benefitting from and not properly acknowledging that history and its remnants. How we deal with this history is the basic foundation of the decolonization movement. Therefore, it is important for us to think carefully about our specific history, and exactly who we want to be, considering who we have been. Decolonisation requires us to be specific. The passive voice does not work here.

Decolonisation is about knowledge, epistemologies, ways of knowing and being known. Scholars who have written about epistemicides – the superiorization of one body of knowledge to eliminate another – have emphasized the need for us to confront this history and the complicity of universities in normalising and reproducing this hierarchization of knowledge. Decolonisation is understanding that the episteme became a weapon, a war machine; the justification for dehumanisation that followed epistemicide. By consigning other knowledges to inferiority, it was possible to consign the humans who held those knowledges to inferiority. And we have not undone this consigning. That relegation is evidenced in what we name our buildings, what we teach, what we research and what knowledge we value. It is also evidenced in what is missing, the silence – what we do not name our buildings, what we do not teach, what and where we do not research, what and whose knowledge we do not value. Decolonisation is about ending the remnants of Empire…. or as Tuhiwai Smith explains: ‘a long-term process involving the bureaucratic, cultural,linguistic and psychological divesting of colonial power.’ Decolonisation is not a destination. It is a way of being.

 

Legal Academics as Freedom-Fighters

‘The law is also memory; the law also records a long-running conversation, a nation arguing with its conscience.’ Barack Obama, Dreams from My Father: A Story of Race and Inheritance

I believe that legal academics have a responsibility to do more than merely add to the profession, more than maintain certain standards of the legal profession, more than tinker around the edges of the ontology of law. We need to question it. And where necessary we need to disrupt it. As Sherry Williams suggests: ‘if our laws are not universal in their objective and impact, then they are not race-neutral.’ Laws affect certain, often racialised, sections of the state and the world, in markedly different ways – in criminalisation, migration, welfare, education  and other ways. What then is the overarching purpose of teaching law? If the study of law is the study of the world, human societies and their order, do we not have a responsibility to effect positive change? Should we not have anti-racism and the dismantling of pre-existing systematic oppressions as part of our objectives? Should we not equip our students for freedom of all? Or at the very least, should we avoid being the obstacle that prevents them from attaining this freedom? What is excluded in the curriculum of the Law School is instructive of our values – what we consider to be important. Stanley examines the curricula of law schools in this regard, he says that the tendency of law schools to prioritise private law above public law places emphasis on the needs of certain sections of the society. (1988:83). Neutrality privileges bodies already privileged. The elephant over the mouse.

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Theorizing Decolonisation

‘Our minds must be as ready to move as capital is, to trace its paths and to imagine alternative destinations’ 
Chandra Talpade Mohanty

Many theories exist that explore how racial difference is structurally created and maintained, many of these theories overlap, converge and diverge. For example, postcolonial theory examines the overlap between race and empire; critical race theory and intersectionality (read together), examine the overlap between race and gender. Subaltern theory allows us to view the world from the position of those placed in positions of abject subjectivity. Effectively theorizing pain and trauma allows us to back up theory with effective and corrective practice. Solutions must match the problem. If the problem is systemic, the solution must address the system and law’s complicity. The solution cannot limit itself to the personal.

We cannot hope to dismantle a system of dominator culture and its influences without closer examination of the world from the vantage point of those caught at the intersection of oppressions. It is even possible that further theorising could uncover intersectional injustices that have been so silenced, academia is yet to ‘discover’ them. As Catherine Mackinnon says: “we know things with our lives and we live that knowledge, beyond what any theory has yet theorized.” Experience precedes theory and not the other way around. Let us remember that. The fact that people’s lives do not fit into the theories YOU have used to explain the world does not mean those experiences are not valid. Theories are limited. So we must allow other peoples’ experiences to complete our view of the world.

Dominator culture influences and sustains the world around us. It is the system of domination that requires interrogation, personal prejudices are easily seen and deescalated. Seemingly isolated incidents of domination are actually an escalation connected to and fed by the pre-existing structural racialized and fetishized societal architecture. We are all socialised into this world system that privileges power over collective empathy. So, while we draw back in horror and disgust at overt and violent manifestations of sexism, racism, classism, homophobia, ableism etc, they are not as destructive as the sleeping cancer of dominator culture that we are steeped in. That we replicate. That our acquiescence and silence gives life and breath and legitimacy to. 

 

Can the Subaltern Speak? Are we even listening? 

“You know nothing of silence until someone who cannot know your pain tells you how to fix it.”  ‘Lost Voices’ by D Simpson and S Bostley

Often lived experiences that indicate the need for decolonisation are not heard, and even when they are, they are not understood, because the experience of the speaker is so far removed from the reality of the hearer. The hearer’s comfort, belief system, world-view is often also assured by failing to hear, as DiAngelo explains in her book White Fragility. We cannot begin to hear because we do not acknowledge how hegemonic and hierarchical social constructions of identity, power and privilege affect our capacity to understand and believe testimony. This is further compounded by the inability of the silenced to comprehend the nature of their silencing and oppression. We expect those who have certain experiences to be able to calmly educate us in esoteric language about their pain, their trauma and their reality. We want them to use theories that have been used to Other them from humanity to explain why they belong to humanity. Thus law, which is often taught as a mechanism of social order, also leaves huge gaps in the understanding of social structures. I read the news and I realise that we desperately need better tools to understand the world. We need them now.

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Freedom in the Law School

“Everyone thinks of changing the world, but no one thinks of changing himself.”  Leo Tolstoy

Therefore, we need to try out dynamic approaches to teaching and research and every other thing we do in the Law School. If we want a different world from what we see in the news and on our streets, we must be part of that change in the work we do as law teachers and researchers. As Freire suggests:

‘In a humanizing pedagogy, the method ceases to be an instrument by which the teachers … can manipulate the students, because it expresses the consciousness of the students themselves… Teachers and students, co-intent on reality, are both Subjects, not only in the task of unveiling that reality, and thereby coming to know it critically, but in the task of re-creating that knowledge.’ (2000: 68-69)

Or as bell hooks explains:

‘The academy is not paradise. But learning is a place where paradise can be created. The classroom, with all its limitations, remains a location of possibility. In that field of possibility we have the opportunity to labor for freedom, to demand of ourselves and our comrades, an openness of mind and heart that allows us to face reality even as we collectively imagine ways to move beyond boundaries, to transgress. This is education as the practice of freedom.’ (2014: 207)

 

Some Recommendations for Liberatory Legal Pedagogies

He who learns teaches, he who teaches learns. Ethiopian Proverb

I do not have hard and fast answers at the moment, but here are a few things ways in which we can think of various sub-divisions of law and law as a discipline. The first would be the false demarcation between national and international legal jurisdictions. Darian-Smith suggests that we examine the things which constitute the international, but are often regarded as outside of the international – and how we construct these distinctions. We must also interrogate the absence of race on the legal curriculum. Every Law School (and I believe every university department) should have a unit that specifically addresses law’s relationship with race. A colleague and I designed one.

All units should consider their entanglement with social construction of race and gender… and class, and sexuality and citizenship. There should be consistent and representational student input in curricular design, particular to a law school’s needs and resources, most specifically from sections of the student population that are underrepresented. A citation policy which would mandate a percentage of non-dominant voices in a bibliography has often been suggested. A citation policy of some kind is necessary because our legal knowledge is reiterative and performative, such that what is considered accepted knowledge only achieves that status through constant repetition. The reiteration of silence results in epistemic violence. The reiteration of a single voice makes that voice the dominant voice. Also, and this should not need to be said, but do not steal people’s work. Acknowledge properly when your work is inspired by people from underrepresented populations.

Acknowledging the divisions that exist, that have been created, does not exacerbate them, but casts a light on them so that the rifts can actually be healed, so that we can truly transcend them. Maybe. As Audre Lorde says:

‘it is not the differences between us that tear us apart, … it is our refusal to examine the distortions which arise from their misnaming, and from the illegitimate usage of those differences which can be made when we do not claim them nor define them for ourselves.’

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Conclusion: We make the road by walking it; we change the world by teaching it… properly

‘Dear Teacher, I am a survivor of a concentration camp. My eyes saw what no man should witness: Gas chambers built by learned engineers; children poisoned by educated physicians; infants killed by trained nurses; women and babies shot by college and high-school graduates; so I am suspicious of education. My request is: help your students to become human. Your efforts must never produce learned monsters, skilled psychopaths, educated Eichmanns. Reading, writing and arithmetic are important only if they serve to make our children more human.’  Haim Ginot

Courting discomfort is necessary, because discomfort spurs us to change things which we would otherwise consider to be impossible to change. Decolonising the curriculum is a hot topic now, so for now, we have the moment. The moment is ours if we hold our nerve, but if we falter, the moment is lost, as are we. Our world will be lost. We need to imagine a better world, not merely legislate it into being, but speak it, and reiterate it, in every class room, every lecture room, every public space, in every university. It is a cold comfort that is maintained and gained by refusing to acknowledge differences and disparities and the structures that created and silently maintain them. As well as our own complicity in those structures and systems of dominance. The presence of disadvantage should make us dissatisfied and uncomfortable, and force us to encounter discomfort. But the odds are in our favour. Because another university is possible. And because another university is possible, another world is possible – a better one.

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Appendix

Questions to consider – querying your academic practice

  • To what extent do I understand the existing global power structures and their historical origins? (Have I done the reading?) To what extent does my teaching and research reflect or acknowledge them?
  • To what extent do I understand race and gender and class and heteronormative and geopolitical constructs? (Have I done the reading?) Does this inform my teaching and research?
  • What is my norm for objectivity, neutrality and reasonableness? To what extent does my pedagogy silence knowledges based on ‘other’ lived experiences?
  • To what extent does my ‘diversity’ silence? Do I do diversity to open or close the conversation? (if you would not run through a cancer fundraiser shouting “THERE ARE OTHER DISEASES TOO” you should allow other voices their space.)
  • Are my reading lists inclusive of non-white academics? If yes, how many are there? A wide variety of non-white academics? Are any of them women? Non-binary? Based in the Global South? Have I included only those who agree with dominant epistemology and legal knowledge?
  • Do I always treat race, gender, class, empire, sexuality, nationality etc as always distinct and very separate issues?
  • Am I going to do anything different? My suggestion? Each year make one change that is: Personal, practical and provable.

Bibliography

Ahmed, S. (2014). White Men. [Blog] feministkilljoys. Available at: https://feministkilljoys.com/2014/11/04/white-men/

Anghie, Antony, Imperialism, Sovereignty and the Making of International Law (Cambridge UP 2007),

Ansley, Frances Lee. “Race and the core curriculum in legal education.” California Law Review (1991): 1582

Cownie, Fiona, Anthony Bradney, and Mandy Burton. English Legal System in Context 6e. Oxford University Press, 2013.

Crenshaw, Kimberle. “Demarginalizing the intersection of race and sex: A black feminist critique of antidiscrimination doctrine, feminist theory and antiracist politics.” In Vivar, Maria Teresa Herrera. Framing intersectionality: Debates on a multi-faceted concept in gender studies. Routledge, 2011

Crichlow, W. (2015). Critical Race Theory: A Strategy for Framing Discussions Around Social Justice and Democratic Education. Higher Education in Transformation Conference, Dublin, Ireland, 2015, 188.

Darian-Smith, Eve. “Postcolonial theories of law.” in Banakar, Reza, and Max Travers (eds). “Introduction: Law and Social Theory.” Law and Social Theory. Second edition. Oxford, Hart (2013).

Delgado, Richard, and Jean Stefancic. Critical Race Theory. NYU Press, 2012

DiAngelo, Robin. White Fragility: Why it’s so hard for white people to talk about racism. Beacon Press, 2018.

Freire, Paulo  Pedagogy of the Oppressed, [translation, Myra Bergman Ramos] (Continuum 2000)

Fricker, Miranda  Epistemic Injustice: Power and the ethics of knowing (Oxford UP 2007)

Grosfoguel, Ramón. “The structure of knowledge in westernized universities: Epistemic racism/sexism and the four genocides/epistemicides of the long 16th century.” Human Architecture: Journal of the sociology of self-knowledge 11, no. 1 (2013): 74-75

hooks, bell. Teaching to transgress. Routledge, 2014

Kennedy, Duncan. Legal education and the reproduction of hierarchy: A polemic against the system. NYU Press, 2007.

Lorde, Audre  ‘Difference and Survival: An Address at Hunter College.’ In Byrd, Rudolph P., Johnnetta Betsch Cole, and Beverly Guy-Sheftall, eds. I am your sister: Collected and unpublished writings of Audre Lorde. Oxford University Press, 2009. 202

McIntosh, Peggy. “White privilege: Unpacking the invisible knapsack.” (1990).

O’Callaghan, C. (2015). Concerning a Critical Legal Pedagogy: Exposing Race-Thinking in Political Canon. [Blog] Critical Legal Thinking: Law and the Political. Available at:

Said, Edward, Culture and Imperialism (Vintage 1994) 22-31.

Spivak, Gayatri Chakravorty  ‘Can the Subaltern Speak?’ in Cary Nelson and Lawrence Grossberg (eds), Marxism and the Interpretation of Culture (Macmillan Education UK 1988)

Stanley, Christopher. “Training for the hierarchy? Reflections on the British experience of legal education.” The Law Teacher 22.2 (1988): 78-86

Tuhiwai, Smith Linda. “Decolonizing methodologies: Research and indigenous peoples.” (1999).

Williams, Sherry J., ‘Race Neutrality: What does it really mean?’

 

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