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Introduction: decolonizing law in the Global North and South: expanding the circle

Sujith Xavier and Jeffery G. Hewitt

Our starting point(s)

Colonialism, imperialism and settler colonialism continue to affect the lives of communities of colour and Indigenous Peoples around the world. ‘Law’,[1] in its many iterations, has played an active role in the dispossession and disenfranchisement of colonized peoples. Law and its various institutions are the means by which colonial, imperial and settler colonial programs and policies continue to be reinforced and sustained. In the same vein, if conceptualized and deployed correctly, law may have the potential to ‘decolonize’[2] our respective communities and societies. There are recent and historical examples in which law has played a significant role in dismantling colonial and imperial structures set up during the process of colonization. For example, Third World scholars have chronicled the ways in which law has allowed for decolonization that allegedly brought about freedom to former colonies.[3] We suggest that it is alleged because of the very nature of decolonization that was proposed and because law was used as the handmaiden of domination and control.[4] The relics of the past continue to remain within the law and the legal architecture created since the legal process of decolonization initiated with article 22 of the Covenant of the League of Nations. Nevertheless, law has not been successful in completing the decolonial processes and many ‘former’ colonized peoples continue to search for their freedoms.

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This volume is especially important today as there is a greater emphasis on attempting to decolonize various academic disciplines. There are sincere efforts to distance and or liberate the foundational theories of knowledge and academic engagement from the manifestations of colonialism, imperialism and settler colonialism.[5] Law schools, universities and the broader educational communities have embarked on the journey of decolonizing their curriculum while Indigenous Peoples and formerly colonized peoples continue to reel from the effects of colonialism.[6] We want to add our voices to this ongoing conversation. The voices included in this compilation gathered together during the Decolonizing Law: Strategies, Tactics and Methods conference held in Windsor, Canada (April 2-3, 2018). The conference attracted more than 80 scholars, activists and writers to the University of Windsor, which sits on the traditional territories of the Three- Fires Confederacy of First Nations, comprising the Ojibway, the Odawa and the Potawatomie.

In this compilation, we invited together scholars from the Global North and South working on decolonizing law, knowledge and knowledge production, with a focus on Indigenous communities and communities of colour.[7] The gathering of these scholars within a single collection is unique, as we have tended to engage with our own respective communities and disciplinary fields. For example, legal scholars writing under the auspices of Third World Approaches to International Law (TWAIL) did not always fully engage with the settler colonial realities of Indigenous Peoples on Turtle Island.[8]

Scholars writing about Indigenous Peoples and scholars writing about the lived experience of the peoples of the Global South have created collective but insular spaces of engagement. These efforts to build community have meant that we have not built bridges between our communities reeling from the ongoing onslaught of colonialism, imperialism and settler colonialism. By bringing scholars from racialized and Indigenous communities from the Global North and South writing in solidarity together, our volume seeks to transcend disciplinary and thematic borders. With this volume, we seek to sound our voices in the space between our respective community-based projects within Indigenous communities and communities of colour from the Global North and South, while still challenging the white supremacist practices wrought by colonialism, imperialism and settler colonialism in the Global North.

The editors of this volume are in relationships with various communities from the Global North and the Global South. For example, Valaric Waboose (Anishinaabe), Beverley Jacobs (Haudenosaunee/Mohawk) and Jeffery G. Hewitt (Cree) are from their respective nations from Turtle Island. Sujith Xavier is a queer refugee settler of colour and Amar Bhatia is a second- generation immigrant settler of colour. The final two editors are working under the auspices of the TWAIL network on the territories of the First Peoples of what is now known as Canada. All of the editors are committed to engaging in intellectual praxis that unsettles and challenges settler and colonial narratives within their respective universities and local communities. As such, our experiences in ongoing and unfolding global dialogues relating to decolonization are framed and nuanced within our own particular experiences. We also recognize that there are multiple engagements in decolonization that currently sit outside of our individual frameworks.

Our conference in April 2018 posed the following question to the participants: how do Third World and Indigenous Peoples’ movements approach decolonization in the face of neo-colonial and settler colonial laws? These laws take the appealing shapes of constitutions, rights and reconciliation while at the same time maintaining (for example) economic domination, water contamination and Indigenous incarceration. During the first plenary panel of the conference with Anishinaabe legal scholar John Borrows and TWAIL scholar Usha Natarajan, we asked two questions: Based on your scholarship and your lived experience, how would you characterize decolonization? What are the strategies and tactics you have deployed in decolonizing law? Both speakers (Borrows in particular) characterized two strands of thought that are essential in the process of decolonizing: building relations and reflective /reflexive practice.

Picking up from Professor John Borrows, we are committed to building better relations within our communities, with each other and with the lands, waters and nature that are part of our daily lives. We also firmly believe that reflective and reflexive practice, especially as it relates to our own positionality within colonial, imperial and settler colonial processes, is essential to any attempts to move beyond merely existing in oppressive societal structures. We are also committed to designing and developing processes that will help us not just decolonize but rather deprogram[9] our minds and our hearts and in effect shift the way in which we build relationships with each other.

In the following sections, we build on these two critical strands of building relations and reflexive practice. Before delving into these two aspects, however, we wish to add our voices to the debates about decolonization, decolonizing and decolonial thinking.

  • [1] We use the moniker ‘law’ to describe Western notions of law, legal authority and legitimacy.
  • [2] We are cautious about the use of the terms decolonial, decolonization and decolonize; see E.Tuck & K. W. Yang, “Decolonization Is Not a Metaphor” (2012) 1 Decolonization: Indigene-ity, Education & Society 1.
  • [3] R. P. Anand, New States and International Law (New Delhi: Vikas, 1972); Antony Anghieand B. S. Chimni, “Third World Approaches to International and Individual Responsibility inInternal Conflicts” (2003) 2:1 Chinese] Inti L Lan>71; George Galindo, “Splitting TWAIL”(2016) 33:2 Windsor ТВ Access Just 37.
  • [4] See for example Sundhya Pahuja, Decolonising International Law: Development, EconomicGrowth and the Politics of Universality (Cambridge: Cambridge University Press, 2011); MarkMazower, No Enchanted Palace: The End of Empire and the Ideological Origins of the UnitedNations (Princeton: Princeton University Press, 2009).
  • [5] Raewyn Connell, Southern Theory (Cambridge: Polity Press, 2007); Gurminder K. Bhambra,Connected Sociologies (London: Bloomsbury, 2014); Boaventura de Sousa Santos, Epistemologiesof the South: Justice against Epistemicide (London: Paradigm, 2014); Daniel Bonilla Maldonado, “Introduction” in Daniel Bonilla Maldonado, ed., Constitutionalism of the Global South(Cambridge: Cambridge University Press, 2013); Made Arvin, Eve Tuck & Angie Morrill,“Decolonizing Feminism: Challenging Connections between Settler Colonialism and Heteropatriarchy” (2013)25:1 Feminist Formations 8; Sanjay Subrahmanyam, “Connected Histories:Notes towards a Reconfiguration of Early Modern Eurasia” (1997) 31:3 Mod Asian Stud 735.
  • [6] Jeffery G. Hewitt, “Decolonizing and Indigenizing: Some Considerations tor Law Schools”(2016) 36:1 Windsor ТВ Access Just 85; Karen Drake, “Finding a Path to Reconciliation: Mandatory' Indigenous Law-, Anishinaabe Pedagogy, and Academic Freedom” (2017) 95 Can В Rev 9.
  • [7] There are multiple volumes that tackle the issue of decolonization and law in various languages, especially in Spanish. See as an example Roger Merino & Areli Valencia, DcscolonizarEl Derecho: Pueblos indigenas, derechos humanosy Estado Plurinacional (Lima: Palestra, 2018).
  • [8] For a reminder to TWAIL scholars, see for example Sujith Xavier, “Loving, Working, andLiving on Stolen Land: People of Colour, Settler Colonialism & White Supremacy” (Reconciliation Syllabus, 8 December 2018).
  • [9] Amar Bhatia Dialogue with Beverly Jacobs, Sylvia McAdam and Jeffery G. Hewitt, TWAILReview (forthcoming).
 
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