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Decolonizing law? Everyone wants to decolonize something, at some point!

If we take the perspective that a settler colonial place is one where enslaved peoples have been forced to go to, and fled to, where refugees have been forced to go to, and fled to, and where immigrants have been coerced or chosen to go to, then these spaces are also gathering places. In the Anishinaabe gathering place, where the conference was held, we sought to bring together a diverse collection of peoples, who are learning about each other, each other’s struggles, ways of knowing and experiences of different kinds of law. The book is necessarily shaped by this context and emphasizes these connections and perspectives. Attempts to resist the colonial, imperial and settler colonial impetus of European empires can be traced all the way back to the ‘discovery’ of non-Europeans around the world.[1] These moments of first contact between Europeans and the newly discovered ‘savages’[2] can be viewed as the first instance and the starting point of decolonial thinking. More importantly, this moment is the starting point of the resistance to the arrival of what Irene Watson has described as the ‘muldari’ (or the demon spirits) on the traditional territories of Indigenous Peoples and communities of colour around the world.[3] There is of course ample evidence of resistance to settler and colonizer incursions into the traditional territories of non-Europeans across the globe.[4]

Indigenous scholars have long chronicled the various ways in which their respective communities have responded to the arrival of the European colonizers and settlers.[5] People of colour have also storied their resistance to the invaders and those that sought to ‘trade’.16 Notwithstanding these discussions on the origins of decolonial thinking within academic spaces, decolonization has specific etymologies and outcomes. For example, international lawyers from the newly freed colonies conceptualized decolonization as emancipation from colonial rule.17 Yet, this process of decolonization in the Global South brought with it a whole host of problems that are intrinsically tied to the Westphalian nation-state model18 and the relics of colonialism and imperialism that continue to be imbedded within, for example. Western legal systems.19

Various scholarly disciplines too have engaged with the topic of decolonial thinking and decolonization. Scholars in education,20 sociology,21 literary theory22 and history,23 for example, have spilled much ink in thinking and theorizing the meaning and scope of decolonization. Indigenous scholars and scholars of colour have sought to trouble the ways in which the scholarly debates about decolonization have unfolded and have been co-opted by white supremacist thinking.24 Some have sought to challenge the ways in which research and scholarship is undertaken,25 while others have asked related questions about the meaning and scope of decolonization.26 The literature on decolonial thinking and decolonization is vast and has many different modes of engagement.

  • 16 See for example Bill Ashcroft, Gareth Griffiths and Helen Tiffin, eds., Postcolonial Studies: The Key Concepts, 3rd ed. (London: Routledge, 2013).
  • 17 Anghie & BS Chimni, supra note 3; Anand, supra note 3.
  • 18 Obiora C. Okafor, “Re-defining Legitimacy: International Law, Multilateral Institutions and the Problem of Socio-cultural Fragmentation within Established African States” (PhD thesis, UBC, Faculty of Law, 1998), online: .
  • 19 Uppendra Baxi, “Modelling ‘Optimal’ Constitutional Design for Government Structures: Some Debutant Remarks” in Sunil Khilnai et al., eds., Comparative Constitutionalism in South Asia (New Delhi: Oxford University Press, 2013) at 23-44; Sujith Xavier, “False Western Universalism in Constitutionalism? The 1867 Canadian Constitution & the Legacies of the Residential Schools” in Richard Albert, Paul Daly & Vanessa MacDonnell, eds., The Canadian Constitution in Transition (Toronto: University ofToronto Press, 2018).
  • 20 Marie Battiste, Decolonizing Education: Nourishing the Learning Spirit (Saskatoon: Purich, 2013).
  • 21 Anfbal Quijano, “Coloniality and Modernity/Rationality” (2005) 21:2—3 Cultural Studies.
  • 22 Walter Mignolo, “Delinking: The Rhetoric of Modernity, the Logic of Coloniality and the Grammar of De-coloniality” (2007) 21:2-3 Cultural Studies 449; Walter Mignolo, “Geopolitics of Sensing and Knowing: On (De)coloniality, Border Thinking and Epistemic Disobedience” (2011) 14:3 Postcolonial Studies 273-, Walter Mignolo, “Citizenship, Knowledge, and the Limits of Humanity” (2006) 18:2 American Literary History 312; Nelson Maldonado-Torres, “On the Coloniality of Being: Contributions to the Development of a Concept” (2007), 21:2 Cultural Studies 240; Tuck & Yang, supra note 2.
  • 23 John Darwin, Britain and Decolonisation: The Retreat from Empire in the Post-War World (New York: St. Martin’s Press, 1988); Tuck & Yang, supra note 2.
  • 24 Tuck & Yang, supra note 2.
  • 25 Linda Tuhiwai Smith, Decolonizing Methodologies: Research and Indigenous Peoples (London-. Zed Books, 2012); Clelia O. Rodriguez, Decolonizing Academia: Poverty, Oppression and Pain (Winnipeg: Fernwood, 2018).
  • 26 Jeffery G. Hewitt, “Decolonizing and Indigenizing: Some Considerations for Law Schools” (2016) 33:1 Windsor ТВ Access Just 64.

Turning back to our own discipline of law, public law and international law have been the central spaces in which thinking about decolonization has unfolded most frequently. The aspirations of colonized peoples and Indigenous Peoples can be situated within international law’s respective provisions of the League of Nations Covenant[6] and its successor, the United Nations Charter.[7] The general narrative is that the provisions within these legal documents, along with the creation of the ‘post’-colonial world order, have set in motion some theorizing about ‘decolonizing international law’. In this engagement, the literature has tended to focus on the nature of the laws that led to decolonization from the mid-1800s[8] to the decolonization of the Class A, В and C mandates[9] (except for Palestine).

Within the domestic spaces in settler colonial places such as Australia, Canada, Israel, South Africa, New Zealand and the United States, Indigenous Peoples have struggled for some form of decolonization. While the claims have been framed within the vernacular of sovereignty[10] and self-determination,[11] they have often relied on public law as a means to challenge the colonial and settler colonial apparatus that was constructed around them.[12]

Notwithstanding these developments, for us, as two lawyers, legal academics and survivors who have devoted our time and energy to thinking about the emancipation of our respective communities and studying the effects of settler and colonial laws, we are interested in traversing the limitations of Western legal thought. We want to turn to non-Western sites of knowledge production,[13] beyond the pale of citing to and regurgitating outdated Western canons. We are interested in thinking about decolonizing law not as a political project that will lead to a pluralistic society that respects our differences. We are not interested in having our differences mediated by whiteness and settler colonial courts[14] as the arbitrators of oppression Olympics.[15] Rather we are interested in thinking beyond law, beyond Western institutions of governance and surveillance and beyond Western notions of knowledge.

  • [1] Truth and Reconciliation Commission, The Final Report of the Truth anti ReconciliationCommission of Canada (Montreal: McGill-Queen’s University Press, 2015) at 45-46; IbramX. Kendi, Stamped from the beginning: The Definitive History of Racist Ideas in America(New York: Nations Books, 2018) at 31-46; A. Loomba, Colonialism/Postcolonialism (NewYork: Routledge, 1998); and Howard Adams, Tortured People: The Politics of Colonization(Penticton, BC: Theytus Books, 1999).
  • [2] For a full discussion of the invention of savage, see Robert A. Williams, Savage Anxieties: TheInvention of Western Civilization (New York: St. Martin’s Press, 2012); and Makau W. Matua,“Savages, Saviors and Victims: The Metaphor of Human Rights” (2001) Harv Inti LJ 221.
  • [3] Watson, supra note 5 at 2-4.
  • [4] See for example Nira Wickramasinhe, Sri Lanka in the Modern Age: A History (Oxford:Oxford University Press, 2014); Sujit Sivasundraram, Islanded: British, Sri Lanka and theBounds of an Indian Ocean Colony (Chicago: University of Chicago Press, 2013); BonitaLawrence, “Rewriting Histories of the Law: Colonization and Indigenous Resistance in Eastern Canada” in Sherene Razack, ed., Race, Space and the Law (Toronto: Between the Lines,2002) at 21-46.
  • [5] Lawrence, supra note 14 at 21-46.
  • [6] Mazower, supra note 4 at 28-65.
  • [7] Ibid.
  • [8] Darwin, supra note 23 at 6.
  • [9] Article 22 of the League of Nation; Provisions of the UN Charter; see also Mazower, supranote 4.
  • [10] Heidi Kiiwetinepinesiik Stark, “Nenabozho’s Smart Berries: Rethinking Tribal Sovereigntyand Accountability” (2014) 2013 Mich St L Rev 339.
  • [11] Darlene Johnston, “Self-Determination for the Six Nations Confederacy” (1986) 44 UTFacL Rev 1; Catherine J. Iorns, “Indigenous Peoples and Self-Determination: Challenging StateSovereignty” (1993) 24 Case IP Res J Int’l L 199.
  • [12] See for example Mazen Masri, The Dynamics of Exclusionary Constitutionalism: Israel as aJewish and Democratic State (Oxford: Hart, 2017).
  • [13] Sujith Xavier, “Theorising Global Governance From Below? Learning from the Global Souththrough Ethnographies and Critical Reflections” (2016) 32:3 Windsor TR Access to Just 229.
  • [14] Glen Sean Coulthard, Red Skins White Masks: Rejecting the Colonial Projects of Recognition(Minneapolis: University of Minnesota Press, 2014).
  • [15] Xavier, supra note 9.
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