The starting point of this essay is my work on decolonisation and the law, which of course includes the monograph, Decolonisation and Legal Knowledge. But majorly this is a reflection on the ideas behind my chapter “The Sea Casts Its Net of Justice Wide: A Speculative Judgment for What Has Been Left to the Waters of Despair.” In The Anthropocene Judgments Project, pp. 59-71. Routledge, 2023. In that chapter I use [among others] the frameworks of Black/African Science Fiction, Indigenous Knowledge, Earth Laws, and anticolonial logics, to imagine the sea and its inhabitants as central to the legal imaginary.  I take the case Gregson v Gilbert (1783), as my starting point, to consider what justice for environmental damage could look like from the perspective of the ocean. The aim of that reflection is to address a question I continue to return to in my work: are the tools we currently have in legal knowledge sufficient to achieve justice in the present? This has involved taking a critical look at the nature of Euro-modern law that emerges from the ongoing project of colonial exploitation and its entangled afterlives. Or to put it differently, how does the law answer the question of what it means to live in the devastation of time – evidenced by global inequality, over exploitation, continuing racial injustice and environmental disaster.

What is the Anthropocene?

The conception of the “Anthropocene” recognises that human activity has had a significant detrimental effect on the environment, through an unequal overemphasis of the importance and exceptionalism of the human in the world. This exceptionalism proceeds unequally by casting many out of the category “human” through varied uses of classification – race, gender, class, ability, indigeneity for instance. Over-exploitation in human relationships with each other and human relationships with nature are managed by what has been described by Farhana Sultana as “colonial-capitalism”. One of the outcomes of the modern European colonial project was the structural and brutal acquisition of the key means of production. This was done through various forms of dispossession – the kidnap and enslavement of Africans and the seizure of indigenous land and natural resources. The resulting destruction of nature, over-consumption, and false scarcities are all implicated in environmental disasters and climate emergencies. Ultimately, the Anthropocene brings with it new challenges and it is recognised that new thinking within the law is necessary to handle those challenges.

This re-thinking requires a direct and engaged refusal of colonialism’s unequal and destructive ways of living. For example, in my own book Decolonisation and Legal Knowledge, in relation to environmental devastation, I invite an unsettling of the colonial idea of land as only private property and ask for a reinstatement of other meanings of land and nature that turn away from ways of living that continue to produce climate emergency and destruction of the outdoors. Similarly, Jennifer Rice, Joshua Long, and Anthony Levenda in “Against climate apartheid” assert that the reversal of environmental damage requires:

  • One, the elimination of colonial and capitalist understandings of private property and land ownership that have been used to justify dispossession and exploitation…
  • Secondly, recognition of the rights of climate migrants and climate-displaced peoples to mobility, citizenship, and security….
  • Thirdly, a deep commitment to centring marginalized ways of knowing and practices in the efforts to address climate change…
  • And finally, reparations in various forms (compensation, repatriation, revival of lost histories) as a movement for climate justice to pay the climate debt owed by imperialist regimes to historically marginalized groups…

What does the Zong have to do with it?

The Zong case [officially – Gregson v Gilbert], decided on appeal in 1783, was concerned with whether insurance could be claimed on a “cargo” of more than 130 kidnapped Africans who had been thrown overboard due to a presumed “necessity”, occasioned by dwindling food and water supplies onboard the slave ship Zong. At the trial of first instance, the claim for insurance was accepted by the court. On appeal, Justice Mansfield ordered a new trial due to the presentation of new conflicting evidence (that there had been some water supplies during the killings) and to determine the precise cause of the deaths – whether they resulted from some external event. Despite the often-celebratory reading of the case as a win for abolition, Justice Mansfield did not discount the possibility that a sufficient necessity could eventuate in such a case. The failure to make the self-confessed wilful killing of the Africans the cause of action, underscores how Mansfield foresaw exculpatory conditions for mass murder within Euro-modern legal knowledge to protect the legal doctrine of necessity as well as the wider processes of insurance, trade, and capital.

Therefore, I suggest that Gregson v Gilbert raises many questions about the historical and contemporary nature of law – especially its role in the [non]protection of life and nature. As Robert Cover tells us, “Legal interpretation takes place on a field of pain and death.”  Ultimately, the primacy of property and profit making, operates to perpetually put life and nature in jeopardy. The law’s nature cannot thus be divorced from the violence it eventuates. According to Derrida, it “is force, law is absolute capitalisation, the hyperbolic appropriation of violence.”  So, I ask: can we really hope for human and planetary justice from the corpus of law that we have now, as we have it now, that has come to us by way of a history of producing racialised enslavement, exploitative colonisation, and neo-colonial racial capitalism? The practice of racialised enslavement occasioned exceptional horrors. For example, as noted by Marcus Rediker, “[t]he historical record provides abundant evidence that sharks actually swarmed around the slave ships. Proof comes from the testimony of ship captains, officers, sailors, and passengers, many of whom were decidedly opposed to abolition.” Like sharks driven to swarm the slave ships on the promise of a feast of human flesh, we are tied to the world that was created in the wake of the slave ships, in the smoke of colonial invasion, under the shadow of lynching trees. And so we are driven to swarm the trail of the colonial-capitalist machine also on the promise of a feast from the remains of exploitation. By regulation these repetitions and continuations, in this, the law is not innocent.

Constructing a new judgment and hoping for the promise of new worlds

The judgment I constructed in the chapter, I mention above seeks to question the centrality of the current framework of Euro-modern law, as the sole source of succour for the harms of the Anthropocene. Therefore, it has as the focal point of its imaginary, the bottom of the waters into which the Zong’s (and similar) souls were cast. The switched perspective is meant to dislodge the centring of profit and property-making by questioning everything we consider settled about the law and the futures we can posit from this dislodging. What if nature is centred, and existence under the waters is placed in the driving seat of adjudication? What if the souls from the Zong found new life and new worlds under the sea – worlds that are being destroyed because humanity continues to do harm to the waters?

What I am trying to do with this work (not only this chapter but my other work as well) is to explore the use of alternative ways of thinking to imagine forms of jurisprudence better suited to the volatility that environmental devastation and enduring racial injustice brings. If the law is unprepared for such volatility, we need to think of frameworks beyond the law. Science fiction may provide such a space. According to Carl Death, science fiction has the ‘potential to… imagine alternative worlds’ and ‘imagine radical alternatives.’ Within this, I specifically rely of “Black/African science fiction”, an umbrella term that describes a literary genre that has directly confronted questions of structural racial injustice and the reproduction of race as a global organising principle in space and time.  I also rely on indigenous jurisprudences that embody alternative ways of thinking about what nature is and humanity’s relationship to it. These jurisprudences often adduce a personality to nature. For example, the indigenous peoples of Colombia often humanise the earth as a “mother” character.  Further, in 2017, New Zealand/Aotearoa accepted an indigenous Māori proposal and recognised the Whanganui River as a legal entity, with rights and responsibilities similar to a human person. In this guise, Graham describes two concepts that underpin aboriginal jurisprudence in Oceania, firstly that the land is the source of law, and secondly, no one is alone in this world. These ideas begin to disrupt the individualism and anthropocentricity of law. Writers of Black/African science fiction in particular, from Octavia Butler to Nnedi Okorafor have always tried to unsettle our vision of what it means to be human in this world.

Wait a Second!!! How far can we go with this?

It should be noted that just like the adoption of indigenous principles into constitutions in South America, granting nature personality rights within law comes with inherent limitations. Chief among this, is the fact that many indigenous jurisprudences are fundamentally diametrically distinct from Euro-modern law. Therefore, one could argue that granting Whanganui River legal personality, grants the river rights to be a Euro-modern person, rather than fully actualising the indigenous idea of what a person is. In “The Sea Casts”, I try to trouble this tendency, by exploring how far we can, practically and imaginatively, dislodge Euro-modern personality as the standard around which legal knowledge revolves. My aim is to push the boundaries of the limits of the form and content of law to re-examine the question: “what does it mean to be person?” This is because, to question the presumptions upon which the world-making of Euro-modern legal knowledge is based, the tools adopted must have the capacity to bend the rules of the law’s assumed ‘naturals’ with impunity. We must do more than bend nature to fit with the demands of law. To survive at all, we may have to completely abandon our idea of law. Speculative fiction allows us to depart from pre-ordained registers to the extent of our imagination.

‘To the extent of our imagination’ is an important caveat here. In the building of these worlds in my imagination, I am restricted by my own training in the law, the language in which I write and the structure of the story I am telling. For example, using a courtroom format flies in the face of indigenous jurisprudences that believe that a person brings their ancestors into rooms with them. A court case between descendants of colonisers and the colonised or descendants of enslaved and enslavers, throws up certain problems within this frame. In essence, we are asking the person who is killed to be in the room with the person who killed them, the person who was enslaved to be in the room with their torturer and molester. Nevertheless, despite these limitations, I still think this a useful exercise to begin to re-imagine the nature of the law. A way in which we may begin to unsettle our acceptance of all the structures that underpin our realities through its gaze.

So, what does it mean to live in the devastation of time?

To conclude, I reiterate my central concern: how do we teach and research law in a world of collapsing ever-present colonial-time. How do we convey what it means to live in the devastation of time. Because, if law does not have the language to read testamentary life, dynamic space, and accumulated time, we may need to look beyond the language of the law for our survival.

I want to share a short verse I wrote to capture my thoughts on these question. In the tradition of Dionne Brand, Andrea Davies, and Audre Lorde and too many others to mention, I believe poetry is not a luxury, but a necessary tool to help us to see, to feel, and to dream…  a way to help us live in relation and not possession.

Here we stand, in the ruins of time

Distracted as we are by shiny steel and glass towers that kiss the sky

Constantly looking away from the destruction from which they rise

Away from stolen labour, depleted forests, and polluted land

In these we cannot breathe

From these we cannot move

In these we and the earth will die…

My friends, History is coming for us

In blood-soaked land

In the waters of despair

In a planet on fire

In the devastation of time.

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