25 Jun Out of Place? Being Anti-Colonial in Law School
As a teenager, I read Angela Davis, CLR James, Edward Said, Kwame Nkrumah, and Malcolm X. From a young age, I was perplexed by the contingency of global living standards, failing to comprehend why much of my national community (in Egypt) was mired in squalor while my adopted ones were swaddled in comfort. Each thinker linked contemporary privilege to historic predation, providing context to the virulent inequalities that haunt the world. Malcolm was my favourite, in part because Alex Haley was a halcyon posing as a scribe, but mostly because I connected with the picture of prejudice, privilege, and purpose he painted. Anyone with an anti-colonial disposition would revel in X’s dream of transcontinental Black unity and rage against the white supremacist reality that assassinated him for it.
It was the 90s and the Third World project was in retreat, or on life support as Vijay Prashad might say. Third World states were swinging from crises to catastrophes as the implosion of the Soviet Union collapsed subsidies and, to be frank, hope of an alternative to the global capitalist social order. Indeed, the Eurosphere was exploiting manufactured debt crises to substitute the New International Economic Order with the old one, albeit with an injection of neoliberalism to neuter any lingering aspirations toward redistribution (at least not a downward flowing one). Market societies supplanted market economies and the individual and their liberties (usually his) became the linchpin to just about everything. The complications of the period were clear from my readings and I found solace in the heroes of the past, not to mention the post-colonial utopias they imagined. They provided a welcome escape from the dystopian present we lumbered under.
My parents’ advice was earnest albeit misguided: I should go to law school if I wish to confront injustice (I wanted to read history and political economy). They believed I would fit right in because of my love of books, my egalitarian streak, and my anti-colonial commitments. Anyone who studied law in the 90s, or in the decades before and after, knows that they could not have been more wrong. Law is the least subversive discipline they could have nudged me towards. I struggled or, as one colleague expressed years later, we survived. It was hard work reconciling my politics with a discipline and a language that genuflects before the status quo. To put my degree in perspective, save for a single doctrinal course on Indigenous Law, not once did a professor speak of colonialism and I graduated having never engaged with its anti-colonial riposte, at least not in a lecture theatre. Naturally, mostly all my professors were white and male.
Current students must understand that law schools and legal pedagogy have come a long way in this past generation; you should also know that they were kicking and screaming throughout. They still are. Communities of students and scholars, those very ones historically instrumentalised or ignored within the legal imaginary, are forcing them to adapt. Because of these efforts, we observe greater representation in law schools and perhaps even less dejection in legal education than just two decades ago. We remain distant from a space that can accommodate Cabral and Sankara, but we are amenable to Kapur and Marks. Still, the quandary about how to teach law in a manner that does not bolster the rampant inequalities that pervade modern societies, most of which are rooted in colonial legacies, remains an open question.
More and more, the time of my legal education resembles something of an interregnum. My professors looked like octogenarian monarchs breathing their last gasps and seething about a future they could no longer author. Today, the queen is dead and her court is in flux. I note that some of my colleagues and many of my students vary in shade, and sometimes in politics too. But where do these newcomers sit within the discipline? Do we occupy a periphery or have we moved the centre? And what do these tensions mean for the teaching of international law? How do we reconcile anti-colonialism with the pro-colonial legacies that shape modern international legality? Is it appropriate or sufficient to teach the subject through a TWAIL lens and what does that look like? Or, like Anghie argues on this blog, do we agree that we must subject students to positivist and liberal legal doctrine, and that the brutality of this worldview when joined to critique will provoke a legal consciousness not beholden to Eurocentric prejudices? This is the conundrum facing law professors, or at least the cohort of international law professors committed to anti-colonial struggle: the conundrum between canon and critique. A critique absent the canon is de-moored, yet it is the normalisation of the canon that makes the critique salient.
Stated otherwise, the canon is not a benign construct but an ideological framework. Anghie leaves this out in his otherwise elucidative piece, overlooking the fact that it’s not only that international law excludes my teenage heroes, but that I was compelled to learn (and now to teach) the musings of anti-heroes. Both in substance and in form, international law normalises colonial logics, reducing anti-colonial struggle to critique, or deviance in the preferred nomenclature of state actors. It feels a lot like teaching someone about birth control once pregnant. Invaluable to be sure, but the span of trajectories has narrowed considerably.
Just as my professors were silent about (anti-)colonialism, not once did they mention Eurocentrism; I’m quite certain they didn’t fret about it, or even notice it either. This is quite the feat, seeing that I gained my first law degree in Canada, a settler-colonial state with not one but two histories of colonial conquest. In international law, we learned about jus cogens, article 38, and state practice. To a lesser degree, we studied the Geneva Conventions, the VCLT, and some of the (now) eminently stale debate about whether international law truly is law. I recall feeling nonplussed, having numbed to the ahistorical malarkey my professors fed me.
Yet, there is no escaping the Eurocentrism of mainstream international law. Among TWAIL scholars, the charge is familiar and remains unequivocal, even if we’ve wobbled the fortress. Devised to legitimise conquest and plunder by European nations during the imperial era, it has persisted in its role as weaponised ideology ever since. Throughout the past half millennia, no region beyond Europe was safe from jus gentium’s remarkable reach, capable of legitimising the imposition of European civilisational precepts upon all others. Beginning with the Americas but quickly shifting to Africa and Asia, each continent was both battleground and petri dish for the advance and assimilation of European epistemology as communicated via the imposed outer-state order.
Generations of jurists were staunch allies of imperialism, practising a politics of complicity and legitimation. Observe, for example, the ease with which European publicists rationalised slavery and slaughter. Francisco de Vitoria declared genocide an acceptable legal response to the unwillingness of non-Christians to comply with their legal obligations (conveniently enunciated by him); to Emer de Vattel, under international law, the lands of indigenous peoples morphed into terra nullius when coveted by a ‘more industrious people’; John (de) Westlake lamented the proto-humanity of African peoples, beseeching Europe to use the law of nations to force civilisation into their lands and hearts; and, just yesterday, John Yoo interpreted his way around an absolute prohibition on torture.
Publicists, both early and late, had a mercenary quality about them, organic intellectuals in the crassest sense of the term: “the capitalist-entrepreneur creates alongside himself the industrial technician, the specialist in political economy, the organisers of a new culture, of a new legal system.” I admit I have always been bemused and impressed by the ability of those privileged by history to narrate the underlying mythology in self-legitimising ways. Are they disciples or grifters? International legal clerics know the propaganda function well. They marshal official, mainstream, and, nowadays, student opinion away from a humanist conscience—or simply co-existence—and toward a symbolic and stultifying doctrinal cage where they assert that scores of dead (Black) children is legal, even moral.
Yet, in the hands of a skilled scholar, international law comes to signify something more than doctrine, even more than itself: it is a dream, an evolution, an ideal, a terrain where we fashion the future… so long as we form the future within the frames adumbrated in Vienna, Geneva, The Hague, and Bretton Woods. In this way, international law is also less than itself, circumscribed by a colonial past and a self-referential present that can only ever disappoint the anti-colonial. To win approval, even our dreams must be doctrinal. But must they also be Eurocentric?
I asked myself this when reflecting on the article I promised to showcase in this post. How do and how should professors of international law teach their subject? What do we say to students motivated by anti-colonial struggle? Do Black lives matter… in international law? I deliberately posed a ‘should’ question to force myself to reflect on the normative implications of whichever approach we select. Scholars of municipal law have long debated the politics of pedagogy, whether through the lens of the tactical—Socratic, problem-based, or flipped classroom models—or the political: doctrinal, critical, or feminist approaches. Publicists are latecomers to the debate. I suspect many of us suffered from the anxiety Gerry Simpson experienced on his Magic Mountain. As he decried, publicists were predisposed to doctrinal approaches because we were trying to convince others (perhaps ourselves) that we were lawyers too, God Damn It. To Simpson, a disciplinary-wide form of impostor syndrome gripped our field, a state of self-loathing that neutered our creative faculties. Simpson’s discomfort was a product of his period and, going by the swelling of our ranks, today’s scholars of international law have disabused themselves of syndromes and such.
Of course, confidence also lays traps. The spread of international law, its bizarre rock-star status, has created plenty of opportunities to write and to teach about the regime. So far, so good. However, the terms of international law are where the complexities and conflicts fester. For example, for sovereignty, equality, human rights, and justice to become global, without an antecedent act of universal articulation, we must build upon the artefacts crafted by Europe during its imperial era. It is virtually impossible to be anti-colonial while navigating a system designed to order colonial conquest: the coloniality of international law, its Eurocentrism, is aetiological first and ideological second. It is clear to anyone teaching international law that we are not dispensing doctrine but a way of knowing and ordering the world as narrated by a single region. For non-Europeans, the implications are bigger than us: legality is an extension of epistemology and the teaching of European international law amounts to a fascinating form of cultural translation. Their gods become our gods.
But where and how does this cultural supremacy—and concurrent cultural erasure—appear in international legal pedagogy? I suppose it’s worth asking whether it even can. These are themes I take up in Must International Legal Pedagogy Remain Eurocentric? Like international law, TWAIL has only paradoxes to offer, and this is evident in our approach to pedagogy. When lecturing, for example, TWAIL scholars lament international law for being a handmaiden to just about every brutality Europe could conceive of since Vitoria sauntered onto the scene. In the same course, sometimes in the same lecture, we rescue international law, declaring it a fantastic(al) “means of constraining power” and thus vital in “the fight for global justice.” I’ve battered the paradox horse into a fossil, and the article adds nothing new to the critique. Instead, I probe the alternatives to a positivist-cum-liberal-cum-Eurocentric pedagogy asking whether the anti-colonial has a voice.
It will surprise absolutely no one that I am dissatisfied with my answer. While the genesis of TWAIL was political and powerful, centring the colonial and anti-colonial in international law, it came to occupy an uncertain space: not quite revolution, not quite reform, and not quite renewal either. It is all these things, which also means it is none of them. I’ve sometimes concluded, at least to myself, that TWAIL is a form of embryonic critique. It is inchoate because its scholars have yet to settle on a conceptual frame, appearing discursively disjointed from article to article, scholar to scholar. And so, those of us with an anti-colonial disposition come to practise an equally disjointed pedagogy. Committed to using international law to achieve more equitable outcomes, no doubt, but almost always within the confines of Eurocentric legality, or at least European epistemology, a critique that cannot be subversive. Despite our anti-colonial credentials, we’ve practically essentialised international law, implying throughout our scholarship that even colouring within the lines is emancipatory.
In those moments of doubt, I reorient myself to the subject of the critique. Mainstream international law itself is inchoate, but not in the same way as TWAIL. The critique has been around for a little over a generation, ignored for much of its early years and only now taking shape. I describe TWAIL as embryonic as it continues to mature with each new intervention and its trajectory epitomises the potential and idealism of youth. Champions of Eurocentric international law, on the other hand, represent it as a mature frame capable of ordering societies in balanced, progressive, and just ways; in fact, we are frequently told it’s the only frame. And yet, it is clear to all critical scholars that the construct is deformed, ill-suited to the feel-good ideals we rest upon the regime’s shoulders. Even first-year law students spot the conceptual contradictions that abound. What is an international law professor to do?
As I explain in the article, I tell students that European international law can never be anti-colonial. Just as jackals only assemble to scavenge a carcass, colonial powers consolidated around a legality of conquest, extraction, and predation, and may the body count be damned. The mistake is ours for seeking salvation in a construct designed to sanction abuse on a planetary scale. The professors I maligned during my studies were operating within the confines of what they knew and benefited from. If anti-colonial scholars wish to upend the inequalities that condemn the post-colony to a subaltern status, we must accept that we cannot imagine fresh trajectories and futures when incarcerated within a Eurocentric fantasy. I posit that a break from coloniality necessitates an epistemic renewal. I am not the first to suggest this, and I expect readers will recognise the thinkers who shaped my adolescence. If we truly believe, as they did, that our students will change the world, we need to “[jettison] orthodoxy in legal pedagogy [and] show [them] the boundless possibilities that the third way begets. For this to happen, we must commit to subverting international law’s as well as our own commitment to Eurocentrism.” I am not yet prepared to pen an anti-colonial manifesto, but I’m willing to stake my life on the belief that it does not begin within a Eurocentric prism.
My parents were wrong about law school being a platform to advance the anti-colonial struggle. Still, that does not mean that, one day, they cannot be right.
[You can download the associated article, Must International Legal Pedagogy Remain Eurocentric?, from the Asian Journal of International Law. For those whose library does not subscribe to the journal, a pox on your university… I mean, I’ve uploaded a pre-edited version to SSRN.]