I wrote an article as part of a special issue that reflects on the state of the traditional law school and legal education. The full text is open access and can be accessed here or through your local library or other institutional channels. [Alternatively, contact me.] If you would like to read the entire special issue [if you are even tangentially involved in legal education I encourage you to do so], you can find it here. In my article, my purpose was to think through the role of law schools in local and global society, especially in teaching the world to our students.
What Are Law Schools For?
The first question I examine is the purpose of law schools themselves. This question is particular pertinent in light of the diminished requirement of a first degree in law [LL.B] for for professional legal qualifications. In the UK the introduction of the Solicitor’s Qualifying Exam [SQE] by the SRA has disrupted the general expectation that a solicitor would usually have a law degree of some sort. This change has to be factored into what we think about the purpose of law schools. In other words, we need to move away from thinking of law schools are mainly for the certification of legal practitioners.
But what then are we left with? Can legal education serve the purpose of educating for transformation? The problem as I highlight in the article is that this purpose is frustrated not just by a lack of diversity in law schools, but inherent inadequacy of legal education [especially when it is predominately suffused in doctrinal law] manifested by law’s dishonesty about its entanglements with power. Therefore, I argue that if the discipline instinctively aligns itself with power, diversity merely diversifies the face of power, but does nothing to fundamentally dilute its effects. We cannot teach to change the world if we do not teach the world that actually is.
One of the key characteristics of the world we live in is its diversity. This reflects the seemingly new but definitely interrelated concerns that legal education and practice are not inclusive, and that legal education reflects coloniality. Low inclusivity in education is often rebutted by pointing to the demographics of the specific country in which the education is happening. Yet, our universities continue to pursue internationalising programmes. Furthermore, this nescience makes a false demarcation between the local and global on the basis of imaginary lines in the sand. This specific refusal to look at the big picture in this particular instance means that we are unable to explain the world through the eyes of our discipline. How do we, by relying on a supposedly objective and universal body of knowledge explain racial inequalities, Brexit, climate change, Palestine, Grenfell, terrorism without engaging with how the law’s spatio-temporal governing of the body has created our present realities? How do we claim [with a straight face] that should be more concerned with present injustice and inequality rather than ‘historical injustice’ in a discipline that relies firmly on precedent from 1603 and legislation from 1861? How do we decide which pasts are of legal concern? What is the essence of naming such inequality as ‘historical injustice’ when we are still in the difficulty? Bodies are still in the water. Bodies in the grounds of residential schools. Bodies in the desert. We are still on this wretched earth.
The problem here is that knowledge production and transmission of law within legal education often erase law’s own ontology and histories, producing an illusion of innocence, universality and neutrality. Unsurprisingly, the ‘core’ legal curriculum is silent about the law’s involvement in the way the world has, through colonial logics and for colonial purposes, been artificially binarily ordered, as well as the connection between the national
and the international spheres of legal epistemologies and histories. But the law is not innocent. Addressing this goes beyond adding a few scholars of colour to reading lists. This is because the law curriculum is unable to draw connections between legal histories and legal presents that account for social injustice, global inequality, extreme poverty and environmental degradation. Consequently, doctrinal law is unable, of itself with only reference to itself, to provide a true self-portrait for educators to transmit to learners. Thus, unable to create a true picture of humanity, traditional legal education suffers functional decay, serving no other purpose than certification into a discipline which disciplines the world to conform to a seemingly perfectly pre-ordained but wholly unequal legal order. What happens when we no longer have certification as a teleology to cling to?
Disciplinary Decadence and Our Identity Crisis
There are very few disciplines which can even contemplate changing the world in the manner that law can. In my experience over the years, many students choose law as a degree for its transformative potential. We all want to be part of something bigger than ourselves. But law has often fallen short of this dream. If legal education can no longer do many of the things expected of it, what is the diagnosis?
Gordon describes the phenomenon of ‘disciplinary decadence’, which he argues sets in because ‘we treat our discipline as though it was never born and has always existed and will never change or, in some cases, die’ (2015: 4). Building on DuBois’ conceptualization of ‘problem people’, Gordon describes how disciplinary practices elevate disciplinary methodology to a sacrament—complete, pure and perfect (2018: 233); this creates a problem for the discipline of populations not considered part of the core of humanity at the time the discipline’s method and thought was formulated. ‘Problem people’ will not ‘fit’ into the purportedly universal and objective method. The symptoms of this decadence include a lack of diversity but also a teleological confusion in the discipline. These symptoms have led to among other things calls to ‘decolonise the curriculum.’
What on Earth is This Thing Called ‘Decolonisation?’
In my opinion, to understand decolonisation, one should not start in the academy in the Global North. In fact, one should start neither in the academy, nor in the Global North. Putting what is designated ‘Global North’ at the centre of the world reifies the problem we are trying to escape. Nevertheless, despite the variances within the schools of decolonial thought, at its heart it is a way of being and not a destination. At one end of the spectrum, decolonization (mainly articulated by post-colonial and anticolonial scholars from Asia and Africa) seeks to repair the remnants of the colonial project as they appear and reappear in epistemic, political, legal and economic structures. At the other end of the spectrum, decolonial scholars (mainly from the Americas and indigenous scholars) seek to identify and dismantle the permanence of coloniality and to build in its place flourishing planetary futures—‘worlds otherwise’. Put simply, decoloniality [my preferred term], is a constant, active, informed refusal of the conditions of life imposed by coloniality. The refusal of conditions of domination, dispossession, and dehumanisation as well as the epistemologies that keep them in place.
Law is entangled in the operation and definition of coloniality through the globalization of a particular vision of law and humanity. Maldonado-Torres defines ‘coloniality’ from ‘colonisation’ as an ontological condition of modernity which outlives colonialism and describes ‘long-standing patterns of power that emerged as a result of colonialism … that define culture, labor, intersubjective relations, and knowledge production’ (2007: 243).
This is why inclusivity does not always address the inequalities power produces. Coloniality as an epistemological technology of power requires diversity within its work to normalize and normativize it. In other words, to be effective, coloniality must of necessity include those ‘othered’.
What Can [‘t] We Do?
So if inclusivity is insufficient to harness the transformative power of legal education, what can we do? First, as I have argued many many times, to avoid the data decay that is inherent in diversity measures, decoloniality cannot be approached as a tick-box exercise. To be effective, legal academics must familiarize themselves with decolonial theory and put that theory in conversation with areas of their pre-existing expertise. Furthermore, we need to move beyond attempts to ‘decolonize’ units/modules and rather question the selection of and demarcation within the curriculum of legal education as well as the social realities they produce. In other words we need to think more conceptually about our disciplinary knowledge. In this way, rather than ask, for example, ‘How do we decolonize the law of contract?’, we are able to question the possibilities that eventuate the emergence and social production of the law of contract and its underpinning normativities, as well as conceptualize what future possibilities that questioning may lead us to.
Nevertheless, despite the foregoing, it should be noted that the consumerization of the student class and the commodification of education, among other things makes this sort of work difficult. Firstly, it is difficult to measure success of critical work by reference to the very framework you are critiquing as inadequate. In other words, we need to seriously think about how we understand ‘success‘ in an anti-colonial frame. Some measures of success of ‘decolonising’ sound like rebuilding what is being dismantled. The types of rankings which universities increasingly rely on require favouring epistemologies and bodies already privileged, mainstream and highly regarded, and this will not lead us to ‘worlds otherwise’. Secondly, as I explain elsewhere, the overwork and casualisation of the academic class mean that value accorded to this sort of work is minimal.
Nevertheless. We are still here. And so we move.
Du Bois, W. E. B. “Strivings of the Negro People (1897).” In The Problem of the Color Line at the Turn of the Twentieth Century, pp. 67-76. Fordham University Press, 2014.
Gordon, Lewis R. “Disciplining as a human science.” In Shifting Corporealities in Contemporary Performance, pp. 233-250. Palgrave Macmillan, Cham, 2018.
Gordon, Lewis R. Disciplinary decadence: Living thought in trying times. Routledge, 2015.
Maldonado-Torres, N (2007) ‘On the Coloniality of Being: Contributions to the Development of a Concept’ 21(2-3) Cultural Studies 240-270.