Decoloniality and the Law: Some thoughts on how to proceed with Dr Foluke Adebisi

A decolonial approach to legal education – teaching, learning and research – must go beyond focusing on tinkering around the edges of the content of the curriculum of law schools, and ‘letter of the law’, law reform.

A decolonial approach should consider first, understanding and then, rethinking the function and impact of law and legal education, if we desire to bring to birth a different world from the one in which the frames of the discipline and profession were first laid out. We need to re-envision legal education and the law that arises from it, because if we do not, we attempt in vain to change the world. Without re-examining the nature of the law itself, and its complicity in creating the unequal colonial world we are attempting to change, the world will remain the same. Decolonisation in this context, must go beyond numbers-diversity, beyond representation that does not acknowledge structural propensity to exclude, and beyond equality that does not reckon with the creation of law’s human and his normativity in our quest for equality. As decolonial thinking relies on the proposition that the ‘coloniality of power’ did not end with colonialism, decolonial thinking in legal education should unveil the continuities of power in our teaching, research and allied structures. ‘Decolonisation’, to have any meaning, must account for the entire process by which colonization, in all its forms, was achieved, the world it produced, and what it would take to achieve its unravelling. Anything less is incomplete and not decolonisation.

In thinking about what decolonisation means for our academic practices in UK Higher Education 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.’ ‘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.  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. 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. To do this we must think of the legal curriculum as more than what we teach, but also 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 people who traded in enslaved humans?), what research questions feed into our research-rich, research-led or research-informed teaching? What communities are usually the object of research? Whose knowledge has value? Whose laws are recognised? We need to examine closely and teach clearly 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 our society.

One place to start would be the foundational subjects in law. We could question how the reasonable person has been constituted, especially in tort law, criminal law, and human rights. In subjects that concern property, 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 to dispossess indigenous peoples of their land by non-recognition of their humanity, the criminalisation of behaviours considered gendered and culturally non-heteronormative, including jurisprudential thought beyond the Western Canon. Decolonial approaches in legal knowledge would also mean including the teaching of events and case law that have been persistently left out of our curriculum. An example is the case of Gregson v Gilbert which was decided in 1783. 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 overboard during the voyage and claim insurance for lost cargo. The case Gregson v Gilbert is a civil case concerning claiming insurance for ‘lost cargo’ and not a criminal case. The owners in this case were allowed to claim the insurance. Dozens of similar cases which expose the uses to which law has been put abound in our law reports.

Beyond the classroom, decolonial approaches in legal knowledge would mean building collaborative networks in higher education and across the world. In fact, it would mean thinking beyond the university and joining forces with social movements and causes around the world who are already doing liberatory work. 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 form 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 pedagogies to produce. It would mean that our pedagogies be directed to bring to life worlds woven in a new design.