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 4^th-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, Africanization, 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.