This was a conversation between myself and Katie Bales that happened at Queen Mary University, London School of Law on the 8th of February 2023. The conversation was part of The School of Law Anti-racist working group and the Staff Seminar Series. The published version of the conversation first appeared in the Critical Legal Theory Blog on the 1st of July 2023. In this conversation we talk about the first three chapters of Decolonisation and Legal knowledge: Reflections on power and possibility. Bristol University Press, 2023.

KB: I should begin by just reiterating how brilliant I think this book is. Foluke has a particular way with words which is almost poetic in parts, meaning it is beautifully written and a joy to read. More importantly, the knowledge contained within the book is crucial for students, academics, and practitioners to absorb and reflect upon if they want to truly understand the origins and impact of law, including the ways in which law is used for political purposes and the subjugation of racialised populations. I hope Foluke’s work goes beyond those who are socially conscious and is integrated into foundational law teaching so that all law students are made aware of law’s colonial history and its associated violences. Given the breadth of issues covered in the book, in this discussion I want to dive deeper into the first three chapters. As I understand it, in the introduction and the first chapter, in thinking through definitions of decolonisation, also talks generally about law but particularly the role of the law school in reproducing problematic epistemologies or knowledge systems that are built on colonial thought processes. Chapter two then hones in on law and the legal system itself, unpicking the ways in which law legitimated imperialism, as well as the ways it continues to legitimate processes of dispossession and racialisation. Chapter three then goes on to explore theories of the body, and the body as a site of dispossession and accumulation which was facilitated through processes of dehumanisation.

Decolonisation, Law and the Law School

KB: In the introduction you talk about law’s purported objectivity and what Crenshaw terms ‘perspectivelessness’. Could you speak a little bit more about this and the potential violence that comes from this construction of law as neutral?

FIA: The standard practice in law schools is to presume that the best way to engage in legal analysis is to stand outside of oneself. Yet, Crenshaw tells us that this attitude of perspectivelessness is a fiction. I engage with this point to argue that law (as we practice, teach and research it) has a certain origin, trajectory, and history; it has alliances with different manifestations of coercive power, embedding within it the interests and desires of the powerful. In this sense, law is not just an abstract tool for regulation, but it also carries within it, its own directions. This purported objectivity is a harmful fiction. It is harmful because it refuses to see and therefore reverse the hierarchies and disparities that it has been complicit in creating. Not only that, but the law conceptually and persistently renders certain bodies and space-times untranslatable and illegible through Euro-modern law. To be seen by the law, one has to abandon one’s unique humanity and move toward masculine Euro-modernity.

KB: At the outset you highlight the problematic nature of the qualifying law degree, and the student and school focus on private law which limits the potential of our law curriculum and students. I think this is really interesting when we situate the law school within the neoliberal paradigm. In many ways, teaching that takes a decolonial approach disrupts this agenda as it reveals the problematic structures on which capital rests, as well as producing socially conscious students as opposed to economically minded ones. Do you think there is linkage between the capitalist agenda and the limited curriculums we see across law schools in the UK, particularly the lacunae of teaching on race?

FIA: One of the things I want readers to consider very closely within the reading of this book is the intractability of racial injustice and capitalism. Racial capitalism as a concept is useful in this regard. ‘Racial capitalism’ was most notably theorised by Cedric Robinson in Black Marxism, but the first known use of the term was in the 1970s by South African anti-apartheid scholars who used the concept to denote the ways in which racial capitalism describes ‘actually existing capitalism’. In other words, when we talk about racial capitalism, we are not necessarily suggesting that capitalism cannot be non-racial, but we recognise that the actual capitalism that exists in human society has always been intimately tied with racializing (very broadly defined) and hierarchisation, as well as mythologising itself. Therefore, it is inevitable that our curricula will be silent on these links… this is the ‘advantage’ of its mythology. How do you stop something that you cannot see?

KB: ‘Stopping capital’ is a tall order but I hope that by drawing our students’ attention to the intimate links between capital and racialisation we can build awareness and move away from some of the frustrating tropes that accompany discussion of ‘economically poor’ countries or what is often, inappropriately, deemed the ‘third world’. I think embedding your book within legal education would help us in moving towards that stance, yet in chapter one you discuss the difficulties of implementing a decolonial approach from within the University which is built upon and continues to reproduce colonial logics and knowledge systems. On page 35 you state, ‘In other words, we cannot escape the potential futility of attempting to decolonise using the very structures we are attempting to decolonise’. I think this is such an important point and I guess the obvious question is whether you think it is possible for us to move beyond these colonial logics within our academic practices?

FIA: In that section, I am particularly concerned with attempts to ‘decolonise’ within the university that seek to subjugate these efforts to standards that are designed to hierarchise and commodify human existence and life in general. Therefore, it is important to differentiate what we can do individually from what we have to do with the cooperation institutions and the state. On the one hand, it could be argued that there will be no situation in which these organisations will acquiesce to their own radical reordering or dismantling. On the other, we are the university, and we make up the state. So, if we keep building community with those who believe that another world is necessary and possible, then we can move beyond colonial logics in our academic practices. But simply adding more issues that engage with race and colonialism to the curriculum will not in of itself ‘decolonise’ it. Especially not when commodification of higher education is widespread and the university still remains a site of violence for racialised, colonised and otherwise marginalised populations.

KB: I think what stands out from the book is the plurality of ways in which decolonial work can be undertaken which exists both within and outside of existing structures built on colonial logics. Law is one example. You note that we must also ‘recognise that the role of Euro-modern law in this claim to progress, has often been to manage and control the outcomes of resistances to its coercive power … within its coercive power’. This seems to be a cyclical issue in decolonial work where efforts to decolonise fall short through use of problematic epistemologies or systems that end up replicating colonial logics. I guess my question on this is whether you think all efforts to challenge law within laws current boundaries are futile, or whether there remains purchase in utilising any aspect of the current system to challenge and disrupt where possible, whilst also looking to alter and overturn these structures at the same time.

FIA: I want to answer a slightly different question first, because I try not to concern myself with whether these efforts are futile or not. If we are honest, we must admit that we do not know what our efforts to ‘decolonise’ will yield. But what if we do nothing? Then these structures will continue to reproduce racial injustice, extreme poverty, and inequality, as well as environmental devastation. We will be destroyed with the earth upon which we currently only precariously survive. So, whether or not our efforts are futile, we must understand them as actions for absolutely necessary for survival. Actions for decolonisation are actions in service to the survival of the world. That being said, when I point out that efforts fall short, this is not to dismiss the impact of those efforts but to recognise the historical and contemporary patterns of colonial logics being rewritten. Colonisation is replaced with neo-colonialism. In the US, racialised enslavement is followed by Reconstruction and then Jim Crow. In South Africa apartheid is only formally ended. Noting this is not a cause for despair, but an opportunity for us to concentrate our efforts, build on what has gone before and get ready to pass the torch on.

 

The Legal System and Racialisation

KB: What strikes me in reading chapter two is the discussion of the universalisation of Euro-modern laws and their epistemologies which has resulted in epistemicides – meaning the death of other legal knowledge systems. I know that within my own teaching, we cover colonial histories and think about the ways in which they influence law making, but I’m aware that there is a gap here in terms of retrieving the epistemologies that were displaced by Euro-modern thinking. Is there any evidence of that taking place elsewhere?

FIA: There is a long history, especially in formerly colonised nations of attempts to revive indigenous knowledge within the curriculum, after the end of formal colonisation. East Africa in the 1960s was the centre of a lot of innovation in this regard. There have also been very recent movements and responses to those in South Africa. One of the limitations of these innovations has been the economic subjugation of these postcolonial states. The structural adjustment programmes of the 1970s and 1980s served to almost completely destroy education innovation on the African continent. This is why decolonisation, to be effective, must be engaged with on a planetary scale. When all regions of the world engage with decolonisation, there will be better responses to the constant push and pull involved in their activities.

KB: Another insight that shines through Chapter two is the contradicting nature of law and the role of racialisation in organising these contradictions, or what you later term ‘internal legal incoherence’. You also note that these histories ‘invite us to examine how this type of legal innovation continues into the present, reworking and bolstering evolving structures of power, marking bodies and spacetime as exploitable/ disposable, while limiting possibilities for the increasing scope of those who find themselves cast into the sacrifice zone’. I feel like chapter two really dispels those myths of law as neutral, fair, or consistent. Can you give us any examples of current laws or policies which you also see as guilty of this same incoherence?

FIA: In chapter two, I discuss this internal legal incoherence in relation to inter alia the abolition of racialised enslavement. In the 1833 Act this involves a situation where the law is navigating a balance between a minimal concession to recognising the personhood of the enslaved while, fundamentally recognising them as chattel/units of labour for the purpose of protecting rights to private property and consequent accumulated wealth. While this equivocation may be incoherent in legal terms, it is not in fiscal terms. It is this sort of balance that carries forward into the present. The law often seeks to do justice in ways that do not recognise the deep schism perpetrated by the pre-existing injustice. For example, Euro-modern legal epistemologies for defining atrocity have not been adequately deployed to recompense the continuing disparities that flow from the origins of racial hierarchies because of this disposition to balance power from above with power from below. The scales are always weighted in favour of coercive power. Thus, the law promises justice, yet erases the harm it has been called upon to heal. We can see this in all manner of laws, but this is particularly acute in antidiscrimination legislation like the Equality Act. The Act includes ‘race’ as a ‘protected characteristic’ but fundamentally misunderstands the modalities of race, thereby severely limiting the scope of the legislation to bring an end to racial injustice. More importantly, I want readers to pay closer attention to the ontology of law, rather than picking and choosing which legislation or judgment or person is the worst.

KB: You also go on to discuss human rights within the context of international law. Within my own work on forced migration, I have often looked to human rights for a solution but have been left sorely disappointed by their limited reach and historical foundations. Human rights have however led to some victories for racialised minorities so could you share a little of your perspective on the utility of human rights, particularly concerning rights of the global majority.

FIA: You make a good point about the mixed bag of human rights. Unfortunately, there is an increasing tendency for people to view criticism of a thing as complete castigation. On the other hand, a little bit of praise very quickly becomes a hagiography. Human rights can be extremely helpful, and this was my own way into practice, study, and research in law. The promise is never fully fulfilled though. One of the problems with viewing human rights as the ultimate solution is the fact that the genealogy we often ascribe to them, especially in the ‘Global North’, leave out a lot of humans from scope of ‘human’ rights. We will talk about the Magna Carta, the American Declaration of Independence, the French Revolution. We do not centre in this origin story the Haitian revolution or the fact that the logics of human rights are not necessarily Euro-modern, but that racialised, colonised and indigenous people bring their own knowledge systems to the making of what we call human rights. It is their tool too, not just to be used, but of their making. And so, I argue, influenced by Shelley Wright, that human rights understood only through the lens of Euro-modernity, that ignores other histories, have very often operated as ‘white men’s rights.’ These decry cultural ‘diversity’ as a problem and reduce the scope of humans that human rights can legitimately protect. Diversity in this sense, is tacitly understood as anything that departs from the ‘norm’ of Euro-modernity.

KB: Methodological whiteness and white ignorance are further topics raised in Chapter two, perpetuating what has been termed a ‘white mythology’ about the world and Britain’s imperial history. Reflecting on my own education I know that this is true, throughout my childhood education I had no idea about Britain’s colonial history, and I was also never taught anything about it during my undergraduate law degree either. Throughout the book you discuss the fact that decolonial work is nothing new and has a long history, but can you see a change in the tide when thinking about legal education and education more generally? Do you think there has been any progress in terms of awareness or is this just merely repetition of education and discussions that have come and gone along the way.

FIA: The question of progress always causes me to hesitate a bit. On the one hand, it is clear to see that there has been what we can call progress, the end of racialised enslavement, increasing awareness of the gaps in the curriculum and in knowledge, and institutional declarations that there will be some change. That is good, it helps us to build community. However, I caution that we need to see this ‘progress’ as waves and not lines. Sometimes, our illusions of linear progress hide the evolving and expanding machinery of accumulation and dispossession. Wins for equality are often followed by violent pushback. In the UK, for example, racial equality legislation was accompanied by tighter controls on immigration. These legislations very often do not deliver as much as they promised and yet continue to be the focus of those who claim to be “anti-antiracist activists.” So, we should be wary of being too complacent about increased ‘awareness’, but pay attention to what that increase is doing.

KB: At the end of chapter two you set out what you want to impart in this book in a beautifully written passage:

‘…most importantly, we must ask what world we want to emerge beyond colonial logics, at the end of this necropolitical condition, on the other side of this deathscape. To answer this question, we must go beyond engaging with colonial logics produced in substantive and procedural distinctions within Euro-modern law and its legal meanings. We must also deal in the areas between those distinctions and meanings, while considering jurisprudences, concepts, methods, and experiences that we do not often concern ourselves with in law schools. This means considering what lies beyond, in spaces undefined and undefinable by Euro-modernity. In times made unintelligible to coloniality. Through bodies unseen by this death zone. In the silence after the disturbed waters. In the spaces of a dying planet. In desolate and sunken places. In words that the subaltern cannot speak’.

This reflection is poignant when thinking about our progress as you note yourself towards the end of the chapter. Taking a decolonial approach is not just about covering colonial histories and wrongs, or diversifying our reading lists and staff and student bodies, it is about recovering epistemologies and voices that have been suppressed, is that right?

FIA: As you say the end of chapter 2 contains an encapsulation of what I was trying to achieve with the book. Among other things, my argument relies on allowing ourselves to exist within a certain tension. On the one hand there is all the violence of has been carried out in the name of the law, on the other is the beauty of all that is possible and the world that just might survive. This is not a preoccupation with the past, but an invitation for us to, within law schools, develop language and tools for different futures that do not travel through the time of the colonial-ever- present. It is not just a concern with what the subaltern cannot speak, but the why the subaltern cannot speak.

 

The Body or Law’s Human

KB: Chapter three turns to examination of the body as a site of dispossession and accumulation through processes of dehumanisation. What I found really interesting in this chapter is your discussion of the coloniality of gender, and I was hoping you could share some of your insights with us further here and what you mean by the phrase ‘coloniality of gender’.

FIA: ‘Coloniality of gender’ was used by Maria Lugones to critique and extend Anibal Quijano’s formulation of the ‘colonial matrix of power’. Coloniality of gender describes the structural selection (marking) and use of racialised–gendered bodies for the purposes of the capitalist-colonial-enslavement structure. This use created demarcations within ‘othered’ populations that relied on the complicity of privileged-by-gender colonised men to enforce those boundaries. These boundaries are complicated across contexts and produce pervasive material and epistemic effects. For example, Oyěwùmí argues that in the Yorùbá context, gendered categorisation prior to colonisation did not carry the same social connotation as Euro- modern legal epistemologies do. In the advent of colonisation, privileged-by-gender colonised men used Euro-modern epistemologies of gender to gain an advantage within the colonial structure. I use these arguments to complicate our understanding of what it means to be human, especially how the law is unable to see beyond the very narrow prism of its human.

KB: In chapter three you also discuss necropolitics which you define, citing Mbembe, as a ‘state–sovereign death–power that is expressed mainly in the ‘power and capacity to dictate who is able to live and who must die’. You talk about the historical significance of necropolitics but I was wondering whether you believe the system of necropolitics is still being played out and can you give us any current examples of this?

FIA: When Mbembe writes about necropolitics, he often references the contemporary global border regime. That is one clear example of ongoing necropolitics that I talk about in chapter four. I argue that the late 20th century emergence of borders can be considered a manifestation of hyper-legitimation of certain bodies and de-legitimation of ‘othered’ ones. People racialised Black and Brown can only cross these borders when they can demonstrate their economic value in increasingly dehumanising ways. If they cannot demonstrate this, they are left to perish in the waters. Another example is the global pandemic within which lines of inequality are exacerbated, and government responses (including increased criminalisation and border surveillance, as well the emerging ‘vaccine apartheid’) have increased the vulnerability of those already living in proximity to premature death.  Finally, the danger of climate change has become increasingly evident in environmental devastation and unusual weather patterns around the world. Yet from the Amazon to the Caribbean, to the Sahara, to South Asia, those who are most affected are those who are the least responsible for the damage. Survival is being threatened on a planetary scale. To survive, we desperately need new ways of thinking, doing and being in the world.

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