Below is the text of my talk which was part of a Plenary session at SLSA 2021. In that year, the annual conference of The Socio-Legal Studies Association was hosted by Cardiff Law School and due to the COVID-19 pandemic held entirely online. The second plenary roundtable at the conference was titled “Decolonizing the Law School – Lessons from the Life and Work of Paul Robeson.” Through our talks, Professor Penelope Andrews, Professor Daniel Williams, and myself explored challenges to legal professionalism and legal education through the frame of Paul Robeson’s immense life and work as a recovering lawyer and talented performer, all the while fighting racial and class injustice in Wales, the USA and globally. I reproduce most of the text of my talk below. (Readers of Decolonisation and Legal Knowledge will recognise some of the ideas as they were developing) The YouTube recording of it is at the end of the text.

What the Ol’ River Knows: Some Thoughts on Decolonial Approaches in Law

For many people, Paul Robeson is mostly known to them for his rendition of the song “Ol’ Man River”. This song, from the musical Show Boat, contrasts the struggles and hardships of African Americans with the endless, uncaring flow of the Mississippi River. I do not think it is a stretch to say that the song and Paul Robeson, in terms of popularity are in a reciprocal relationship. Robeson made the song well-known and the song did the same for him. Yet being known primarily as a singer did nothing to diminish Robeson’s civil rights activism. It has been reported that beginning in 1938, whenever Robeson performed this song in concert, he changed the words to reflect his activist intentions. The changes I find of particular note are where, instead of:

“Ah’m tired of livin’

An skeered of dyin’,

But Ol’ Man River,

He jes’ keeps rolling along!”

Robeson sang:

“But I keeps laughin’

Instead of cryin’

I must keep fightin’;

Until I’m dyin’,

And Ol’ Man River,

He’ll just keep rollin’ along!”

And so, I ask, what do we do when racial injustice seems to continue rolling on? Do we keep fighting until we’re dying? Will we be the rolling river, or will we be Robeson?

If we wish to learn from Robeson’s life and work, there lies a clue in a quotation from one of his speeches given at London’s Albert Hall on 24 June 1937. He said “The artist must take sides. He must elect to fight for freedom or slavery. I have made my choice. I had no alternative.” As legal scholars we also are faced with a similar choice. Confronted as we are with massive global inequality, structural injustice at home and abroad, extreme poverty and environmental devastation… living through a global pandemic which has exacerbated these already existing fault lines such that they all have the most impact on those made most vulnerable in our world… We have a choice. Will we fight for freedom? Or will we fight for the continuation of slavery?

It is in response to similar questions about the societal role of the academic in law that we encounter discourse about decolonisation of knowledge, education, curricula and the university, especially. However, I think it is pertinent here, to point out two things. Firstly, we must recognise that the word “decolonise” [and its derivatives] have often been co-opted by academia (particularly but not only) in the Global North for purposes that ignore the extremely long history of decolonisation by peoples in the Global South and by indigenous peoples. For them, the inauguration of coloniality [often dated to 1492] triggered the inauguration of intellectual, emotional and physical labour to overturn it. In other words – decolonisation. I am not convinced, therefore, considering what decolonisation has been, that we can “decolonise the curriculum.’” That is through the curriculum overturn all global coloniality. But we can apply decolonial thought to our scholarship. The sea eats the land but slowly.

Secondly, we must note what decolonial work does not mean. It is not the same thing as representation, inclusion, diversity, and equality. Though these are good things in themselves sometimes, they are means and not ends. Or in the words of Tuck and Yang, decolonisation is not a metaphor for all the good things we wish to do. It should also be noted that decolonial thought does not seek to erase, but to rethink the past, as a rejuvenating epistemology for the future. There are stories told by the river; there are stories told of the river; and there is what the river knows. If the river still flows, what world can our epistemologies, soaked as they are in the waters of coloniality, bring forth? What choices are we making? How is coloniality reproduced in our work?

Decolonisation is inaugurated as a direct response to the conditions of life introduced by coloniality. Thus, decolonisation is a stubborn refusal of the conditions of domination, dispossession, and dehumanisation as well as the epistemologies that keep them in place… including Euro-modern legal epistemologies of person, place, space and time. Furthermore, decolonisation, through activity in the Global South and by indigenous peoples always has always persisted and always will persist, irrespective of our transient attempts in the Global North to lead the conversation.  To achieve anything within its purview, we must, with commitment, build on previous decolonial work. Thus, decolonial work should be understood as material and epistemic repudiations of the colonial, that seek within their positions an ‘after-colonial’ time and reality. This requires acknowledging the incompleteness of the current world, how it emerged out of a history of distortion of differences, keeping as a constant aim the indefinability of the future, with the hope for worlds otherwise.

Consequently, thinking [and unthinking] ontologically, functionally and teleologically about the law, means considering how law’s code is entangled in the legitimation of hierarchization through micro-regulation and thus the [re]production of coloniality. It means seeing law through the eyes of the world that emerges from coloniality … it means seeing humanity through the eyes of the river. How much has humanity changed as the river just keeps rolling along? Whose bodies are we still content to leave to the waters? How do our epistemologies always remake the water to be safer than the land? The reproduction of the colonial code mostly unveils itself through the manifestations of power and its legitimated uses in the framework of life, time, and space. In how life is reduced to hierarchy, value, and productivity. In how time is trapped in boundaries and in how space is commodified. And how, we become children of time, running back to yesterday, again and again and again… while the river just keeps rolling along…. Fresh bodies flung beneath her waters.

Thus, in thinking about what decolonial scholarship means for our academic practices Law Schools and our understanding of what law is, I find Sara Ahmed’s writings on “use” very instructive. She writes 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, “ she says. “Use” is how the past lives on in the present. Use is how lawful becomes normal. Acknowledging this historical and contemporary use, 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. “The more a path is used, the more a path is used.” We must think of the law curriculum as more than what we teach, but also how we teach, who is participating, where we teach… why we teach. We must also interrogate what research questions feed into our research-rich, research-led, or research-informed teaching. Whose interests and desires are we reflecting? What communities are usually the object of research? Whose voices are being erased? Whose knowledge has value? Whose laws are recognised as law? Whose laws are reduced to myth and custom? Why do we teach and research? What structures are we upholding? What choices are we making? What possible stories of what possible future worlds can we imagine through our scholarship? Remember, there are stories told by the river; there are stories told of the river; and there is what the river knows.

Where do we start the story of the discipline in how we teach and research it and how we know it? A good place to begin thinking “decolonially” would be the foundational subjects in law. We could deconstruct the gendered, racialised and class implications of the reasonable person. In subjects such as land law, intellectual property, trusts, and company law, we could revisit the origins of property. This would include teaching the history of the use of incorporated companies in the processes of enslavement and colonisation, the use of terra nullius­ in the dispossession of indigenous peoples of their land by non-recognition of their humanity and commodification of their land and by ignoring indigenous legal epistemologies. We could examine the histories of criminalisation of non-Euro-modern behaviours and include within this, jurisprudential thought outside the Western Canon. But beyond this tinkering around the edges, we must also question divisions of the law curriculum into the standard units/modules as well as supposed divisions between law and other fields of knowledge. This silo-fication of knowledge is a celebration of closure that replicates colonial logics of separation and false completeness that leads to a turning away from living thought.

Decolonial approaches in legal knowledge would also mean including in our teaching events and case law that have been persistently left out of our curriculum. One example is the case of Gregson v Gilbert (1783) which reports the events of the ship Zong. In August 1781, Zong, a ship designed to carry approximately 193 enslaved persons, sailed from Accra, Ghana to Jamaica with 442 enslaved Africans aboard. Due to low water and food supplies, the crew decided to throw 142 Africans (people) overboard during the voyage and claim insurance for lost cargo. I ask again, how much has humanity changed as the river just keeps rolling along? Whose bodies are we still content to leave to the waters and the fires?

Beyond the classroom, decolonial approaches in legal knowledge would mean building collaborative networks across higher education and beyond higher education. It would mean thinking beyond the university and entering in equal conversation with social movements and causes around the world who are already doing liberatory work, recognising their expertise in their own social conditions. Decolonial approaches in legal knowledge, would mean thinking differently about how we produce legal knowledge and research. It would mean thinking differently about research outputs – who has access, what forms these outputs should take, who can research whom and whose knowledge has value. Decolonial approaches in legal knowledge would mean thinking differently about the world we want our scholarship to produce. It would mean that our scholarship would be directed to bring to life worlds otherwise.

As the uncaring river of coloniality keeps rolling along, we have a choice to make. Will we fight for freedom or will we fight for slavery? Can we innovate within our discipline to produce hope and design for a better world?  As Ruha Benjamin admonishes, ‘remember to imagine and craft the worlds you cannot live without, just as you dismantle the ones you cannot live within.’

For many the simple reality is that their world, this world is unlivable. They cannot breathe. But Starhawk reminds us that another world is possible and necessary:

for this one is unjust, unsustainable, and unsafe. It’s up to us to envision, fight for, and create that world, a world of freedom, real justice, balance, and shared abundance, a world woven in a new design.

And so, I leave you a final question: What world are we teaching for? The one where the river flows or the one where the river knows?

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