COMMENT Prof. Dr. Luke Mason 30 July 2021
It is hardly a radical proposition to suggest that decolonisation is an essentially contested concept. Indeed, it is partly the pluralistic nature of the very idea which makes it an intrinsically valuable one, allowing a creative playfulness around the ideas of canonical and threshold knowledge, and providing an openness which itself seems to encapsulate the elusive essence of the decolonisation educational movement. However, as with many ambitious and transformational intellectual-political movements, this epistemic openness brings with it both the risk of stasis, and, more worryingly, the risk of a capture of the process by its most simplistic and most superficial versions, either an extreme reductio ad absurdum or, even worse, a tick-box exercise which is captured by the very processes which the movement seeks to challenge. In the context of legal education, there is a particularly heightened risk of this happening due to law’s internal complexities. This short piece seeks to set out the importance of grasping the specific nature of legal knowledge and learning, and the consequences for a transformational decolonising pedagogy.
Legal knowledge, legal scholarship and legal truth are of course themselves inherently contested and multi-layered, meaning that any process of decolonisation must grapple with intellectual and normative practices on several levels at once, often with contradictory or conflicting results. This is not a reason for despair however, as this process of recurring, discursive dispute resolution is a reflection of law’s ultimately multimodel and open nature, despite its apparent external appearance of clear authoritative claims. These modes of legal knowledge are ultimately more than capable of accommodating the various modes inherent to decolonisation itself. However, through its ultimately normative essence, legal thought shapes and gives a certain form to these processes, itself a form of intellectual colonialism. This was famously described by sociologist Niklas Luhmann as law’s nature as cognitively open but normatively closed. This means that a serious decolonisation movement in legal education must take place on several levels simultaneously, and in the knowledge that there will be complex and contradictory consequences of such a process.
On the Jurisdictional Dimension of Legal Curricula
The first and most obvious mode of legal education is its jurisdictional one, the question of which legal system or systems should be the object of study, and of which legal sources are examined. This question of course overlaps somewhat imperfectly with the political history and geography of modern forms of colonialism, a period of history which has generated the familiar world maps divided into ‘families’ of legal system. There exist of course many other versions of this question, which do not map easily onto questions of decolonisation, for instance the place of different forms of international and regional law, and of other forms of non- and transnational law. Legal education by tradition is an infelicitous mixture of jurisdiction-specific and aspirationally universalist approaches. A departure from both of these traditions would seem a structural first step towards a decolonising ethos within legal education, a reflection of the inherently overlapping and pluralistic nature of jurisdictional research. There exist however certain risks of this approach, somewhat present within a current trend towards ‘global’ legal education. There is a danger that this itself can fall into a naïve universalism of the very kind which it is seeking to replace, a new form of pedagogical colonialism reflecting idealised legal forms. In particular, the manner in which these overlapping sources and systems interconnect should form the basis of a robust and honest form of legal education.
On the Critical and Analytical Components of Legal Knowledge
A second recognisable mode within legal thought are its multiple critical and analytical aspects, providing models of understanding and application to the otherwise inert legal content which is studied, and frameworks of evaluation by which to judge them. It is within this mode that the decolonisation of legal education most resembles that which is found within cognate disciplines, such as the social sciences and the humanities. That is where the intellectual frameworks which the law student is exposed to, and encouraged to critically engage with, are revisited to ensure that they are suitably diverse and suitably critical of the doctrinal structures which are the object of analysis for the student of law. However, there is a risk within legal pedagogical decolonisation that such a revisitation of the intellectual canon be confined to a sub-genre of legal studies and its offshoots, rather than expanding out into private and public law and into substantive areas of international and regional law. Equally, there is a risk that decolonisation becomes reflected in an oppositional frame, as an alternative canon which exists in parallel to the inherited canon which it purportedly seeks to displace. This is problematic for several reasons, which should hopefully be obvious, but the perceived need to remain ‘unsullied’ by joining a compromised canon with which you become complicit should be resisted. It is only through this process that these alternative frameworks of knowledge can grant students the ability to engage as insiders within legal processes, armed with new and alternative modes of seeing and understanding. One particular danger in this regard is that, by sitting within a parallel silo, the legal decolonisation movement in fact reifies the very canon that it seeks to challenge, depicting a core legal vision as central (albeit wrong). This in fact generates an inaccurate and unattractive conservative and permanently ‘colonial’ vision of law, at odds with the open nature of legal thought, with the paradoxical effect that the decolonisation movement generates a more conservative vision of canonical legal knowledge that the exponents (real or imaginary) of those views.
On the Embeddedness of Legal Studies in Society
There exist of course many other recognisably legal modes of knowledge and thought, which can be understood from a decolonisation perspective. These include the ethical, political and cultural aspects of legal reason, often imagined away within legal education and ‘pure’ accounts of legal validity out of a valid concern to maintain a recognisably legal form of knowledge. These perspectives’ inclusion of important aspects of the decolonisation movement are of course crucial for a meaningful decolonisation of the legal curriculum, competing for space with the explicit and implicit ideological modes of legal analysis which are already taught. While, in many ways, this is the mainstay of a decolonisation process within legal education, it depends on a robust approach to the other modes summarised within this short piece.
On the Meta-Epistemic Level of Legal Scholarship
A final mode which is over overwhelming significant in relation to decolonisation relates to our vision of what legal education and legal knowledge are. This might be called the meta-epistemic aspect of legal education, regarding our understanding of what kind of knowledge generating processes legal scholarship and learning are best understood as being. While a multimodal form of legal knowledge, as sketched by this short piece, suggests an openness towards various aspects of a progressive decolonisation of the curriculum (albeit one not without risks and potential pitfalls), there exist numerous versions of that same multimodal legal epistemology. One unhappy inheritance of legal education, and something which has re-emerged in these times of hyper-complexity and in the context of the massification of higher education, is an overly didactic approach to teaching, neglecting the critical and analytical components of the generation of valid (or plausibly valid) legal propositions, which is the essence of legal education. This would seem to stem from an elision of the law-qua-social-artefact with the law-qua-epistemic-practice. While the former has an authoritative form the latter is infinitely open-textured, albeit with the modal forms discussed above. This results in a meta-epistemic error, seeing the student of law as an absorber of knowledge of various kinds (even of radical and revolutionary kinds), and results in a form of doctrinaire expertise, which is of limited ultimate use in the multimodal epistemic legal world. The upshot of this is that a merely ‘decolonised’ content of legal curricula is insufficient to have its desired effect, it must come as part of enquiry-led, student-driven vision of legal learning through which new legal thinkers are equipped with new vocabularies and combinations of sources which can allow them to recast the canons and frames of reference in a way which reflects their own engagements with a changed, widened and decolonised curriculum.
Luke Mason is Professor of Jurisprudence and Head of Westminster Law School at the University of Westminster and Chair of the Association of Law Teachers.