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On Decolonizing the Law: Views from a South African Legal Scholar

Trisos, Auerbach and Katti recently published a manuscript titled “Decoloniality and anti-oppressive practices for a more ethical ecology”. Here, they present five action calls as possible vehicles for shifting mentalities and/or ideologies underpinning ecology, all in an effort to broaden the discursive and applied space of ecological scholarship and practice. These five shifts include decolonizing the mind; knowing one’s histories; decolonizing access to data and resources; decolonizing expertise; and the practise of ethical ecology in inclusive teams. Decoloniality underpins their ideas.  For that reason, and for this short discussion, I will focus on what it might mean to decolonize the mind from my perspective as a legal scholar with a focus on environmental rights. This is a difficult project in law, because it would require dismantling the very base of legal knowledge – itself a product of coloniality. In law, decoloniality often feels elusive, as much like Linnean classification, laws are built from other laws, many of which are in some way rooted in colonialism itself.

In law, there are established hegemonies of Eurocentric truths and knowledge, with anything different regarded by legal establishments as inferior or less developed. Consider conservation for example. In South Africa, we presently see conflicts and contestations around protected areas that are meant for conservation. To be sure, the scientific basis and the necessities for conservation (and protected areas) are clear, yet if protected areas are established from within boardrooms, based on two-dimensional maps, and without the inclusion of those who live within the spaces being ‘conserved’, conflicts are bound to arise.  

In a case that brought to the fore these kinds of conflicts, the South African Supreme Court of Appeal in 2018 ruled that conservation is not necessarily at odds with indigenous peoples’ customs. The case was Gongqose & others v Minister of Agriculture, Forestry &  Fisheries and others; Gongqose & others v State & others (1340/16 & 287/17) [2018] ZASCA 87 (01 June 2018), and the Supreme Court of Appeal noted that “it is important to remember that as regards conservation and long-term sustainable utilization of marine resources in the MPA [Marine Protected Area], the Dwesa-Cwebe communities have a greater interest in marine resources associated with their traditions and customs, than any other people. These customs recognize the need to sustain the resources that the sea provides.” The worrying question is how could policymakers have missed such an important aspect in drafting the law? Worse still, if we accept – as we should – that indigenous law or custom is unwritten, representing what we call ‘living customary law’, then how can we bring such living reality to the classroom in our training of tomorrow’s legal fraternity?

Would engaging with ‘living reality’ be an act of ‘decolonizing the minds’ of our students and legal communities? How do we capture what is at stake in a manner that lends itself to classroom teaching, yet is also solid enough to withstand the onslaughts of dilution through interpretation? Sure enough, natural law (which is unwritten and stems from moral principles governing human behavior; i.e something might be immoral, but not illegal) exists, but ironically, as natural as it might come, it never has the privilege of written law when it comes to steering behavior, and worse still – directing learning. Law, being a construct that thrives on certainty, yet stemming for the most part from unwritten precepts – presents itself as both an opportunity and a challenge. Thus, our immediate task is then to question the very essence of law and to evolve our thinking, teaching and deliverables for the classroom. But then the classroom presents its own siloed problems for lecturers.

I taught Jurisprudence (named legal theory in other universities) for only six months in 2019. This module, which is offered at the 4th-year final level of studies (because it is assumed students have ‘matured’ in thinking), interrogates societal issues and invites the students to question what they know. If there was doubt as to this, amongst the ten study units offered in this module at my institution, there were the following topics: “Law and Community”; “Being Different: Sexual Orientation”; “Being Different: Law, ethnicity and xenophobia” and “Law and Resistance”. In a classroom that was ethnically as diverse as South Africa itself, I expected nothing short of spectacle. Sure enough, in the anonymous module evaluations which are handled at the end of each semester (and where the students rate the module, the lecturer and the lecturing), some revealing evaluations came through (these are available on record with me), one of which stated the following:

The lecturer did encourage racial debates that made me feel as if am I part of an inferior race. Arguments got heated and I was offended on several occasions. This model [module] was not a pleasure to have and had negatively influenced my view of [the institution] as an inclusive campus. This course was not presented in a manner that is easily understood by the average student. The recent assignment topic made me feel uncomfortable expressing my own personal true opinion as this would probably influence my marks. As of last week, I have decided to not attend the classes as I feel uncomfortable, I will handle this as a self-study topic. I personally think that this subject that should rather be presented as an elective module rather than a compulsory one.

We had been discussing a topic on “Law and Resistance”. For a module that seeks to theorize on issues we encounter at some point in our lives, I felt compelled to have discussions in open class, getting lived experiences as opposed to the typical lecture which would rely on theorized prescribed reading materials. The experience of “Law and Resistance”, it turned out, was intensely linked to race and perhaps even class. Here I was, a black Zimbabwean man in South Africa, teaching in a class that had all races in South Africa: black, white, colored, Indian, etc., at an institution that has a campus once classified as historically disadvantaged. Certainly, the Apartheid history was not lost to this class. Imagine then, rather than capturing their own experience, I had directed the class to discuss what a decolonized perception of “Law and Resistance” might look like? Or, what decolonizing the mind, in relation to “Law and Resistance”, could involve?

The two stories above reveal one major point: decolonizing law will be a long process, both within practice (and in courts) and within the law school. How do we vitiate such a stronghold? While I make no claims as to a solution – I am in agreement with the general view that on a macro level, there is a need for the destabilizing or dismantling of the current commercialized outlook of the University as an institution of higher learning. The present Eurocentric structures serve industry (law firms, courts, companies) well, and so they sell. There is no incentive to change.  Diversifying institutions by, for example, expanding professionals to include more previously disadvantaged personnel is no good, as it is just transformation. On an even micro level, decolonizing the mind would involve destabilizing or dismantling by asking questions that sound elementary – yet reside at the core of the present problems we face: what is the nature of a law school and what is it meant to deliver. Simply revising curriculums and including aspects of decolonization will just remain exiguous. Rather, we can go further and inquire as to what the role of a law student is and what the role of the law lecturer could/should be? In a cut-throat world that has become extremely commercialized, we should then ask what the industry and society expect? Looking back, we had such a watershed moment to start this process. With #FeesMustFall and #RhodesMustFall movements, students took matters into their own hands through protests; around that time, legal qualifications were being audited nationally to determine if they were fit for purpose and ‘transformation’ in its various forms became a buzzword. Yet the momentum seems to have slowed down. But we could lift it up by returning to the questions above. Make no mistake, such questions cut right to the core of what law is. As such, I suggest that the starting point for decolonizing the mind within the legal space is a consideration of what law could be, but for colonization. We already know that Africa has a plural legal system. Secondly, and from a practical perspective, we need to design our law degree in such a way that it is interdisciplinary; for example, law and social justice. Here I find that the American system (where law is offered as a postgraduate course), is probably fit for countries in the global south that are characterized by having plural legal systems. While we do have Bachelor of Arts in Law degrees, these are not celebrated as would be the pure LLB law degree. But perhaps an inclusive approach is where we subject the whole LLB curriculum to indigenization, Africanisation, and globalization – for this whole process must not close us to the world. Otherwise, this remains true, the jury is still out on whether we, as a legal profession, are ready for decolonization.

Read the entire Decolonizing Science series:

1. Introduction: Decolonizing Science and a World Turned Upside Down by Madhusudan Katti and Jess Auerbach

2. Towards a New Understanding of the Relationship Between Humans and Nature by Shubhobroto Ghosh

3. What Will It Take to Decolonize Ecology? by Adriana Romero-Olivares and Prakash Kashwan

4. If Colonialism in Africa is Dead, Would That Make Forest Conservation its Ghost? by Emmanuel Nuesiri

5. What Does Decolonization Mean for Conservation? by Subhashini Krishnan and Sutirtha Lahiri

6. Decolonizing Science Means Taking Indigenous Knowledge Seriously by Dina Lupin

7. On Decolonizing the Law: Views from a South African Legal Scholar by Caiphas Brews Soyapi

Decolonizing Science Means Taking Indigenous Knowledge Seriously

In their article, Decoloniality and Anti-oppressive Practices for a More Ethical Ecology, Trisos, Auerbach, and Katti highlight the ways in which epistemic exclusions have shaped ecological research, defining what counts as knowledge and who should be recognized as expert knowers (2020). Looking at the number of bird species whose Latin binomial names derive from European surnames, they highlight the extent to which Indigenous knowledge in countries outside of Europe has been all but disappeared by colonial ecological taxonomies. Similarly, Antoinette Burton and Renisa Mawani argue, in their recent edited book Animalia, that imperial authorities used the study and classification of animals to reinforce colonial ideology and the idea that colonization was itself both natural and inevitable (2020). Imperial researchers failed to register the knowledge of Indigenous populations as knowledge. Even in those cases where occupiers turned to local populations for information or took Indigenous words to describe the creatures they encountered, they did not see Indigenous peoples as experts or knowers, to be included in the epistemic community of natural scientists or researchers (Justice 2020).

Trisos, Auerbach, and Katti identify five strategies for transforming academic ecological practice and overcoming long-standing colonial practices. While these strategies seem to be primarily directed at those within the academy, their emphasis is clearly on greater inclusion and participation by those who have been, and continue to be, excluded from these knowledge communities. Practices of epistemic exclusion continue to perpetuate colonial modes of knowledge generation and undermine the agency of those who are still marginalized. As a result, the authors find that decolonization demands engagement, participation, inclusion, and accessibility for marginalized groups as well as the recognition of diverse knowledge systems and sources of expertise.

While inclusion of Indigenous and other marginalized knowers is critical to any meaningful decolonization process, practices of inclusion can also have epistemically unjust consequences (Pohlhaus 2020). Processes aimed at greater participation can perpetuate, rather than address, colonial and neo-colonial knowledge systems. Trisos, Auerbach, and Katti point to some potentially exploitative and unjust modes of inclusion and in the next few paragraphs, I set out to engage with and build on that discussion, examining more closely some epistemically unjust practices of inclusion.[1]

First, all too often, Indigenous peoples experience what the feminist philosopher, Miranda Fricker, terms practices of epistemic objectification (Fricker 2007). Although Indigenous peoples are able to participate and are included in research or assessment processes, they are not treated as full epistemic agents and participants – their contributions are not treated as contributions to knowledge. Rather they are treated as mere sources of information or “states of affairs from which the inquirer may be in a position to glean information” (Fricker 2007, 132). They are not treated as full participants in an epistemic exchange but as mere sources of data or information.

Second, and related to the practice of epistemic objectification, Indigenous peoples find themselves subjected to practices of epistemic extraction (Grosfoguel 2015). Epistemic extraction happens when Indigenous knowledge is taken and introduced into dominant knowledge systems in ways that Indigenous peoples have little or no control over and in ways that decontextualize that knowledge, severing it from the contexts and peoples who produced it (Altmann 2019). As a result of this extraction, the incorporation of Indigenous concepts or ideas into western academia or law may happen in ways that produce distorted interpretations and understandings. Attempts to integrate Indigenous knowledge into dominant knowledge systems and practices might, as a result, change the meaning and significance of the original concept as traditional, Indigenous understandings are displaced by these distorted interpretations (see, for example, Altmann’s discussion of the appropriation of the concept of Buen Vivir in Ecuador).

Third, practices that aim to include overlooked and invisibilized Indigenous peoples and Indigenous knowledge are usually concerned with including that knowledge within an existing epistemic framework, for predetermined ends. In the context of legally mandated consultation with Indigenous peoples for the purposes of policy and law-making decisions, for example, affected communities are invited to participate in a process concerned with answering some predetermined question (such as whether or not a dam should be built on Indigenous land or how a climate adaption program should be carried out). Participation, consultation, and inclusion are all ideas concerned with bringing people into an existing process or conversation. Inclusion in these circumstances is not concerned with ensuring that processes of engagement or epistemic exchange are conceptualized or initiated by Indigenous communities. Within the context of a participation process, Indigenous proposals that radically reframe the question or approach are rarely treated as relevant contributions to the discussion. Even when communities are included early in the decision-making process, they are still being included in someone else’s plan, agenda, or program and it is to this end that their participation and knowledge is sought.

Fourth, Indigenous peoples face practices of epistemic exploitation (Tuvel 2015). Participation can be extremely labor, time, and resource-intensive, requiring communities to spend hours engaged in meetings and devoting time to reading and understanding complex and technical documents, preparing comments, collating opinions, and researching their own histories. Because participation is seen to be in the interests of the affected groups, their time, energy, and expertise are rarely compensated. Sometimes Indigenous peoples can simply opt out of participating but often a refusal to participate will have far-reaching and devastating implications. A failure to participate in impact assessments, for example, may mean that decisions are made about their territories that fail to take into account their expert insights about possible social and environmental impacts. Policies and law-making processes often draw on academic research, so even refusing to participate in seemingly policy-neutral academic research may have significant consequences.

These are just a few examples of the kinds of practices of epistemic exclusion, exploitation, and extraction that Indigenous peoples face when they are included in processes of knowledge generation and decision-making. This does not even begin to account for the ways in which Indigenous peoples are silenced in these processes, nor of their experiences of being misunderstood, not believed, or forced to engage with ignorant or prejudiced audiences (for more on this, see Townsend & Townsend 2020, 2021).

Decolonization, then, not only requires greater inclusion of marginalized knowers, but it also requires that systems are put in place that enable and fund Indigenous-led and conceptualized research and policy-making processes. Indigenous peoples should not be obliged to give over their knowledge and expertise to outsiders to serve external agendas, but rather should be facilitated and recognized in their horizontal engagements and knowledge sharing with other Indigenous peoples and marginalized groups. Building Indigenous ecological knowledge, within Indigenous contexts to serve Indigenous ends should be at the heart of decolonization efforts.

Read the entire Decolonizing Science series:

1. Introduction: Decolonizing Science and a World Turned Upside Down by Madhusudan Katti and Jess Auerbach

2. Towards a New Understanding of the Relationship Between Humans and Nature by Shubhobroto Ghosh

3. What Will It Take to Decolonize Ecology? by Adriana Romero-Olivares and Prakash Kashwan

4. If Colonialism in Africa is Dead, Would That Make Forest Conservation its Ghost? by Emmanuel Nuesiri

5. What Does Decolonization Mean for Conservation? by Subhashini Krishnan and Sutirtha Lahiri

6. Decolonizing Science Means Taking Indigenous Knowledge Seriously by Dina Lupin

7. On Decolonizing the Law: Views from a South African Legal Scholar by Caiphas Brews Soyapi

References:

[1] These conclusions draw on my research work as well as my practice as an attorney working with Indigenous and rural communities threatened by extractive industries. It also draws on the work of feminist speech act theorists and feminist epistemology including (Hornsby 1995; Langton 1993; Fricker 2007; Medina 2013; Pohlhaus Jr 2020; Dotson 2011; Berenstain 2016; Davis 2016)

Altmann, Phillip. 2020. The Commons as Colonisation – The Well-Intentioned Appropriation of Buen Vivir. Bull Lat Am Res, 39.

Berenstain, Nora. 2016. “Epistemic Exploitation.” Ergo, an Open Access Journal of Philosophy 3.

Burton, Antoinette and Renisa Mawani, eds. Animalia: An Anti-imperial Bestiary for Our Times. Duke University Press, 2020.

Davis, Emmalon. 2016. “Typecasts, tokens, and spokespersons: A case for credibility excess as testimonial injustice.” Hypatia 31 (3).

Fricker, Miranda. 2007. Epistemic Injustice: Power and the Ethics of Knowing. Oxford: Oxford University Press.

Grosfoguel, Ramón. 2015. “Epistemic Racism/Sexism, Westernized Universities and the Four Genocides/Epistemicides of the Long Sixteenth Century”. In: Araújo M., Maeso S.R. (eds) Eurocentrism, Racism and Knowledge. Palgrave Macmillan

Hornsby, Jennifer. 1995. “Disempowered speech.” Philosophical Topics 23 (2).

Justice, Daniel Heath. “R is for Raccoon.” Animalia: An Anti-Imperial Bestiary for Our Times, eds. Antoinette Burton and Renisa Mawani, Duke University Press, 2020.

Langton, Rae. 1993. “Speech acts and unspeakable acts.” Philosophy & Public Affairs 22 (4).

Medina, José. The Epistemology of Resistance, Oxford: Oxford University Press, 2012

Pohlhaus Jr, Gaile. (2020) Epistemic Agency Under Oppression, Philosophical Papers, 49 (2).

Townsend, Leo & Dina Townsend. 2020. “Consultation, consent and the silencing of Indigenous Communities.” Journal of Applied Philosophy 37.

Trisos, Christopher, Jess Auerbach & Madhusudan Katti. (2021) Decoloniality and anti-oppressive practices for a more ethical ecology, Nat Ecol Evol 5.

Tuvel, Rebecca. (2015). “Sourcing Women’s Ecological Knowledge: The Worry of Epistemic Objectification.” Hypatia 30(2).