Decolonizing Narratives in Legal Education
By Masja Zweers
Source: Getty Images, Dusan Stankovic
What has a decolonial strategy to offer legal education? In this blog I argue that decolonization of the curriculum can be deduced from Article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). It is a moral obligation that has, especially within the legal discipline, an indispensable educational purpose as well.
Article 13 of the ICESCR states that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. Furthermore, the provision requires education to enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups. General Comment no. 13 states that education has to be flexible so it can adapt to the needs of changing societies and communities and respond to the needs of students within their diverse social and cultural settings. Therefore, the obligation to fulfil requires States Parties to take positive measures to ensure that the curricula meet these objectives and education is culturally appropriate for minorities, indigenous people and of good quality for all. This is where a decolonial strategy comes in. Decolonization in this sense relates to interrogating ongoing systems and institutions that perpetuate colonial relationships and attitudes of dominance and subordination between Western powers and formerly colonized peoples.
These attitudes are often actualized in Eurocentrism, the notion that economic and scientific advancement started in Europe and spread by way of progress, instead of interaction (and violence), with the rest of the world. This implies other assumptions about modernization as a rational, harmless and linear progress that is intrinsically European. According to Jenkins (2003), these assumptions stem from a major fallacy in our general understanding of historical development: the idea that ‘history’ and ‘the past’ are the same. They are not the same. Any account of the past is ‘’inevitably a personal construct, a manifestation of the historian’s perspective as a ‘narrator’’’. The past, as a series of events, cannot be discerned in its totality but only in the form of a narrative. As the narrator is in control of the story, she (though for ages the narrator was a he) is in control of the way in which it is transferred as knowledge. Historical narrative therefore has major epistemological and ideological implications.
This applies all the more to the transference of legal knowledge. Fundamental events of the past, such as the abolition of slavery, the introduction of alternative forms of labor and (de)colonization are not just political developments, but legal transitions as well. Studying the laws in their past social and economic context reveals the path from practice to policy. It provides insight into the ways in which human behavior has been shaped as (customary) codes condoned, condemned, controlled, and normalized conduct. Such an analysis would not only lend itself well to the purpose of decolonization, but is also an indispensable skill for understanding how and why the law functions the way it does in societies.
Yet the current legal curriculum pays little attention to legal history and ideology. Instead, underlying developments and theories are presented as ontology: a given and, ultimately, unquestioned way of being. For example, students are taught that European Union law arose after World War II, from the aspiration of a unified and peaceful Europe. At the same time of the Treaty of Rome, however, the ‘typically European’ notion of free movement of goods, persons, capital and services was severely violated by France and the Netherlands on their own territories overseas, in Algeria and Indonesia, respectively. Moreover, the notion of free movement in relation to commercial routes and international trade is not so European after all, as it is rooted in Islamic Law. By skipping these historical facts, the legal curriculum tends towards one-sidedness, thereby taking on the role as narrator and reaffirming a false Eurocentric narrative. A decolonial strategy within legal education makes students aware of the way in which ideology permeates legal history and offers different perspectives so that students are encouraged to identify and critically analyze different narratives.
International (human rights) law could be used here as both a guiding framework or lens, but also as an object of scrutiny. Projects, such as the one I am participating in at Utrecht University, are an example of the way in which State Parties implement their obligation to fulfill the right to education, art. 13 ICESCR. International law is not just a guiding framework, but also and more an object of scrutiny in decolonial strategy. For the Third world the narrative that international law makes the world a better place is simply false. The concept of the nation-state, the doctrines of intertemporality, uti possidetis and jus cogens have all contributed to the European monopoly and Third World decline in international law. Therefore, decolonial strategy implies assessing these legal truths and historical narratives critically, for example from African, Chinese Indigenous and Islamic approaches to international law.
Analyzing historical narrative, however, is not enough. In more and less subtle ways, present narrative of legal education is permeated with structures of oppression too.. Our team organized focus group-meetings, which showed that, even though the influence of Islamic Law on European Law is erased from the curriculum, Muslim (‘looking’) students are often put forward in class to comment on behalf of their ‘community’ on issues such as ISIS returnees, the situation in Syria and the Gaza Strip. These kinds of situations are contrary to what art. 13 ICESCR is trying to achieve, more specifically to the requirement of education’s flexibility and adaptability as is discussed in paragraph 6 of General Comment 13.
Another, more subtle example of educational narrative that is in dire need of decolonization is the way in which non-discrimination law is taught. Although non-discrimination law is a substantive part of the curriculum (it is treated in multiple courses, among which Public International Law, Constitutional law, European Union Law and Labour Law) the concept of race is discussed briefly and one-sidedly: as a forbidden ground for discrimination. This kind of narrative subscribes to the false belief in the biological existence of race. This not only reinforces stigmas, but is an indication that the curriculum does not provide me, as a student, with the necessary tools to become a good lawyer. Theory on non-discrimination law just makes a lot more sense when attention is given to the concept of race as a social and (through that!) legal construct.
The point I am trying to make is that decolonization is not just a moral imperative; it has a didactic and pedagogical purpose as well. Training students to become competent lawyers in an ever-globalizing world goes hand in hand with a decolonial strategy in legal education. Decolonization within legal education offers a framework that transcends the reproduction of institutionalized knowledge and challenges students to engage in a more critical legal theory.
Masja Zweers is a law and philosophy bachelors-student at Utrecht University and Student Assistant to the Project Developing an Inclusive Curriculum and Learning Environment.