I was very happy to be able to present different aspects of my ongoing research on legal education at the Socio-Legal Studies Association conference. My research, which is pedagogical as well as jurisprudential, examines what happens at the intersection of legal education, race as well as a history of changing ideas of what it means to be human. My first paper was on decolonising the legal curriculum. In UK higher education there have been lots of discussions of decolonisation of knowledge, curricula and the university. These discussions revolve around race, gender, and class, and how these things interact with issues of equality, justice, representation, inclusion and diversity.
When looked at in this way, decolonisation, can be seen an opportunity for us to reflect on our own individual academic practices and how all of the various aspects of them came to be. Decolonisation is an opportunity to examine where we stand in relation to what has come before us and what will come after us. It requires us to ask questions of ourselves. Decolonisation of knowledge and curricula asks for critical inclusion of epistemologies, ways of knowing, lived experiences, texts and scholarly work that have been previously excluded from our disciplines. It asks for an examination of the history of academic disciplines to explain and understand how and why certain forms of knowledge and values have been privileged. It asks us to think critically about the relationship between the location and identity of the writer, and the location and identity of their subject (human or otherwise). Decolonisation also asks us to consider the diversity of the student and staff body and how seemingly structured disparities are produced and reproduced within a supposedly randomly collected diverse body. It asks us what we will do about the foregoing.
In thinking about what decolonisation’s meanings means for our academic practices in UK HE Law Schools and our understanding of what law is, I find Sara Ahmed’s writings on ‘use’ very instructive. She writes in her blog that ‘use’ can sometimes become a subversion of ‘function’. The way a thing is used can subvert or even obliterate its intended function. ‘The more a path is used the more a path is used.’ ‘Use’ is how the past lives on in the present. Use is how lawful becomes normal.
Law’s uses – historic and contemporary – have often subverted its functions of justice and equality. [Slavery was legal, colonisation was legal, and many genocides have been legal or legalised.] Therefore, in my paper, I consider three theoretical frameworks that highlight subversive use of law – Critical Race Theory, Postcolonial Theory and Subaltern Studies. Read together, they suggest that law has been complicit in entrenching race as a social construct, in entrenching the inequality that arises from racialisation. This has influenced the current socio-political international landscape.
Examining these theoretical frameworks together invites us to view law as an uninterrupted continuum across space and time, to unveil the human consequences of historical control that live on with us. They illustrate how structurally systemic and lawful processes actually enable individual prejudice and not the other way around. The lawful structure makes its outcomes appear to be the natural order of things. It is harder to use law to reverse what seems natural and lawful. Freedom becomes law’s most unfortunate casualty.
In my paper, I suggest that in our pedagogy we must always be aware of and directly mention how the law came to be and how that coming-to-be has influenced how law is taught and what law is now. Law as the study of social order, must elucidate how the stratifications in the social are formed. Legal pedagogy must expose the nature of law as something more than formal rules. Its content and use are influenced by societal moralities, populist anxieties and the location of national and global power. Therefore, we must question how objective and neutral we can be, if we fail to acknowledge voices and experiences that are absent and silenced from our curriculum. This is most important if we believe that the law should function as a tool of positive social change and justice.
Save the mouse!!!
To do this we must think of the legal curriculum as more than what we teach, but how we teach (e.g. does everyone have the freedom to participate? Are our spaces democratic?), who is participating (e.g. are our staff and student bodies diverse from top to bottom?) and where we teach (e.g. are our buildings named after slave-traders?). Other things we could consider adopting are mentorship programmes, demographic specific events, citation policies, more support/recognition for legal pedagogical research. We must also be aware that decolonisation is not a numbers game. Equality, diversity, inclusion, representation without equity are often not decolonisation but tools used [use!] for an unwarranted metricization of justice. Subversion of decolonisation is an unquestioning acceptance of the structure that has produced the inequalities that we are trying to remedy. It an open invitation to reproduce inequality. Structural inequalities require a direct confrontation of the structure.
One major suggestion in decolonising the curriculum formed the content of my second paper (jointly with Yvette Russell [University of Bristol]): ‘All Law Schools Should Offer a Unit on Race and Law.’ As already mentioned, racial disparities abound in our institutions, in our law schools, in our profession and in our discipline. Yet we know that race is socially constructed, without biological meaning. To reverse this, we need to examine closely and teach how ‘law and race shape each other in powerful ways.’ We need to examine how apparently race-neutral laws and policies have racially disparate results and outcomes in almost every sector of society – education, employment, welfare, housing, criminal justice, etc.
The second paper explored how and why Yvette and I developed an optional final year law and race unit at our Law School. We believe that a unit on law and race is properly situated as part of the optional LLB curriculum within the wider context of the decolonisation of education.
For the unit, Yvette and I take an anti-racist and interdisciplinary approach to examining the interaction between race and law. We are quite keen to situate our intellectual explorations within the British experience. A lot of academic writing is focused on the American experience; we would like to avoid what may amount to a detached examination that will not result in any form of internal critique for our students. We want to avoid an examination of what happens ‘there’ and look at ‘what happens here, why and what can we do about it?’
One of the first questions for me in such a unit is: how is ‘race’ defined?
The slide above illustrates how ‘race’ is susceptible to different definitions and understandings. It is also used simultaneously in different ways by different people. Some people use it meaning ‘race as biology’, then come to a conclusion which infers ‘race as ethnicity.’ The global educational sphere suffers from a lack of intellectual engagement with race; thus we are unable to dismantle the hierarchies built on the back of its social construction. We are unable to decolonise.
Yvette and I are really looking forward to teaching this unit and hope our students have a fruitful and productive time examining this with us. We wish to give them a clear vision of the world as it is, so that we can together imagine the world as it can be. A much better one than what we have now.
Ahmed, Sara. 2017. “Institutional As Usual”. Blog. Feministkilljoys.
Delgado, Richard, and Jean Stefancic. Critical race theory: An introduction. NYU Press, 2017.
Grear Anna, The DNA of our Legal System | Anna Grear | TEDxBonn. https://www.youtube.com/watch?v=U6-byCZR-AY
Said, Edward. “Culture and Imperialism. 1993.” New York: Vintage (1994).
Spivak, Gayatri Chakravorty. “Can the subaltern speak?.” Can the subaltern speak? Reflections on the history of an idea(1988): 21-78.