On Decolonising Law in a Time of Genocide

I write from Australia, a colonial debtscape that is yet to be decolonised. More specifically, I write from the lands of the Gadigal people where the city of Sydney stands, a place shaped by the ongoing effects of genocide and where protests are ongoing since October 2023 to oppose the Palestinian genocide unfolding seemingly unstoppably before our eyes. From this place and against this context where the ‘phrase settler colonialism paired with genocide, is subject to suspicion, derision and repudiation’ I put forward the following claim: where decolonisation remains undone, or where it is undertaken non-performatively, genocide and dispossession are present and, in such relations, law, or more specifically colonial law, is always implicated. I am far from expert on Indian law, but offer these conceptualisations of settler law as a possible framework for reading current developments in the Indian context where a suite of new criminal codes are said to represent a decolonising of criminal laws from the British era.

Australia as Colonial Debtscape

The strikethrough across the word Australia draws immediate attention to its coloniality. It is a stylistic preference I take from the work of artists Chun and Tylor who seek to denaturalise and interrupt the colonial name that tries to make synonymous the British Commonwealth political entity and Aboriginal land in order to conceal the British theft of Aboriginal land at the level of language. Without the strikethrough, the word Australia acts as mere description when it is more accurately usurpation, extractivism and cover up of colonial criminality and debt.

In the same way, ‘law’ in a colonial context cannot be taken as a neutral descriptor. Colonial law in the place known as Australia sits in a violent relation of domination toward Indigenous laws, peoples, lands, and languages that pre-existed it. And although spoken of in the singular as ‘law’ or ‘the law’, this is not so. ‘Law’ is more accurately law following Chun and Tylor as it, like Australia, is usurpatory, dispossessing and naturalises colonial theft and debt all at once.

Law claims singularity but this cannot be so in a colonial context where the imposed law covers over pre-existing laws of First Peoples. The colonial theft of land, the renaming of Aboriginal Land as Australia, and the functioning of law as though it is singular and covering over the unpayable debts of colonialism are key features of what I term the colonial debtscape.

In the Australian context the word decolonisation remains unspoken in the constitutional recognition approach to justice for Aboriginal people. The language and practice of decolonisation remains officially off the table in Australia, yet one would be forgiven for thinking otherwise. For the last decade and more, the discourse of recognition, specifically recognition of Aboriginal people in the (colonial) constitution, has attempted to ‘stand in’ for decolonisation. And while current attention in Australia is focused on the fact that the 2023 Voice to Parliament referendum did not return a ‘yes’ vote for the purpose of recognition and enshrining a First Nations voice to Parliament, it is important to emphasise that decolonial justice would not have eventuated even if a successful yes vote had been achieved. The Voice referendum operated within the parameters set by a non-consensual legal regime and so it must be seen as a law reform device crafted by a constitution/nomopoly to enable its conservation via alteration. Having been created by the constitution, the referendum performed the role of affirming colonial law as the legitimate starting point and centre of legal authority.

The constitution as a colonial infrastructure for law warrants critical attention in any discussion about the decolonisation of law. This is especially so at a time when genocide is visible across the globe and the stakes for life and death of Indigenous people and lands could not be any higher. Genocide, as the elimination of peoples, is the necessary pre-condition for the making of settler colonies. They are at once deathscapes and colonial debtscapes. Where decolonisation is said to be occurring, either explicitly or implicitly, Tuck and Yang’s (2012) assertion that decolonisation is and must be about the repatriation of Indigenous land and life is central. They argue that decolonisation cannot be metaphorical, and it is without synonyms and metonyms. And yet, when the law operates non-performatively, what is said is being done stands in for the decolonisation of law and land.

Non-Performativity and Decolonising Law

Sara Ahmed’s concept of non-performativity captures and exposes practices of institutional exculpation, where self-declarations signify as though they are performative. In ‘The Nonperformativity of Antiracism’ (2006), Ahmed focuses on institutional speech acts made by universities to express their commitment to equality and elucidates the ways that institutions actively generate interiority through processes of naming and assigning (to themselves) attributes such as diversity. In this way, their self-declarations can signify that they are performative. Ahmed draws on Judith Butler to suggest that performativity ‘must be understood not as a singular or deliberate ‘act’ but rather as a reiterative and citational practice by which discourse produces the effects that it names’.

So, while institutional speech acts declaring values of diversity and equality are doing something ‘they do not do what they say…instead they are nonperformatives’. Ahmed suggests that nonperformativity requires a rethinking of the relationship between texts and social action, a relationship that she calls ‘an ethnography of texts’ where ‘to track what texts do we need to follow them around’. Ahmed does not merely examine ‘university documentation on diversity for what it says’; she asks what they do and points to a ‘relationship between the new discourses of racial equality and the extension of institutionalised racism’ where admissions and commitments all comprise ‘performing equality’. Ahmed explains, ‘the document says we are diverse, as if saying it makes it so. In a way our task must be to refuse to read such documents as performatives, as if they bring into effect what they name’ (p 124). Following Ahmed, does the declaration that law is being decolonised in the Indian context bring about the effect it names? I will return to this in the final section.

Colonial Law as Nomopoly

The Australian constitution forms a nomopoly – it imposes a violent legal infrastructure that seeks to usurp the operation of Aboriginal law pre-existing it. I conceptualise colonial law as a nomopoly and as performing nomocide. If colonial law usurps and claims the centre (nomopoly) and from there exerts violence over Indigenous life and lands (nomocide), justice cannot possibly flow from it. The possibility for a decolonised version of justice is foreclosed by unchanging legal frameworks, engaged in self-perpetuating cycles of law reform and the staging of non-performative legal events which come to form part of the circularity of the violence since violent foundation is locked in placed as the animating centre of power. The articulation of colonial law as a nomopoly that perpetrates nomocide, can provide a new lexicon for understanding the role of law in the production of colonial debtscapes.

When a colonial constitution is allowed to remain centred in processes of law reform, such reform is unlikely to have decolonising intent or capacity. Law reform that leaves colonial structures in place and does not operate to decentre their power cannot be said to be decolonising in its effect. In the Australian context, the yes/no binary of the Voice referendum campaign flattened and violently displaced the larger questions of colonial debt, carceral expansion, and punitiveness that urgently need to be reckoned with. The technology of the referendum worked to naturalise the legitimacy of the colonial structure posing the question. This is because both yes and no, as available positions, were not independent of the system that posed an obfuscating question with only two possible answers as the path to racial justice.

An Indian Nomopoly?

During this period in India, is the decolonisation of criminal law, which is presented as having been done at the level of language through the rewriting of existing codes, in fact declarative and non-performative? As has been observed by Satish, Dash, and Pandey, the coloniality of the rewritten laws remains in place, specifically through the expansion of the powers and punitiveness of the state and the police and through the retaining of offences grounded in archaic colonial morality.

Is decolonisation occurring in India if specific laws, in this case criminal laws, are being rewritten, but the system and structure of law giving rise to them remains centred? What does it mean that the offence of sedition for example, has been replaced by the new of offence of an ‘act endangering sovereignty, unity and integrity of India’? Are these new terms synonyms for sedition and if so, what it is the nature of the legal framework that remains centred and protected by these laws? Do the new, ostensibly decolonial laws work to entrench and render invisible the coloniality of the Indian constitution? If decolonisation in the Indian context is not doing what it names, then what is the work that it is doing? Placing India under interrogation as a colonial entity demands an examination of the violent relations of domination that are locked in place through this ostensibly decolonising exercise that works to protect the legal order’s coercive and singular claim to law and sovereignty.

Feature Image: Photograph of Australia/Invasion Day Rally, 26 January 2024. Credits: Dimitra Giannacopoulos.

This post is part of a series on ‘Decolonisation and the Law’. Read the other posts here.