(De)coloniality and EU Legal Studies
In EU legal studies, time, space, place, and knowledge are locations for contestation, deliberation and reconstruction. Other submissions in this symposium have elaborated on the limitations in understanding and accounting for the ‘what was’ as a fundamental blind spot of EU law. Extending from this starting point, I will show how decolonial approaches can bridge the gap between history, theory, and action, offering practical and alternative solutions for reconciliation. To do so, I will use the rule of law as one such site for contestation.
Decentering lived experiences of EU law is an invitation to see Europe differently. It does not mean discarding Western, Eurocentric perspectives. Instead, it means exactly what it says on the tin: widening the range of options and viewpoints in a manner that moves away from myopic Eurocentric universalism, exceptionalism, and the violence it is historically rooted in. It is also an exercise in accountability and reckoning. Working towards this requires an intersectional approach to making, promulgating, interpreting, enforcing, and adjudicating EU law – a continuous process. I view this as a crucial way to rethink the EU’s entanglements, moving away from the imperial amnesia that continues to be seen in the study and practice of EU law. Confronting fundamental constitutional issues requires this insight and can draw from a growing breadth of research that visualises a postcolonial and decolonial Europe, offering space for re-reading the European legal order. While I will not explore intersectional theories and concepts here, I acknowledge their invaluable utility in EU legal studies’ existing ‘toolbox’. We need to go a step beyond just that. A departure from methodological avenues ‘traditionally’ used in EU legal studies is not just timely but imperative to equip the field with the ability to engage with a broader array of options, viewpoints, knowledge(s), and strategies. Critical approaches are positive, productive, and hopeful strategies that widen the EU’s legal, political, social and historical imaginaries, foregrounding alterity.
Beyond civilisationalism: re-learning Europe
Several scholars, including Peo Hansen and Hanna Eklund, have shown how European integration and law have maintained lines of continuity with Europe’s colonial pasts. What is forgotten also shapes EU law in its boundary drawing, which has both an inclusionary and exclusionary function. Peace is arguably the EU’s most prominent utopia inscribed into its founding sources. But who is visible in building this ‘peace’, and who is (and has been) left behind? Utopia, universalism, salvation, and civilisational thinking have drawn dividing lines between Europe – as “progress” – and the “backwardness” (inside and) outside it. This mindset has imbued EU law from its founding moment. The rule of law, as a well-established value, has not been exempt from this thinking.
The EU holds a tight grip over its memory repository rooted in a carefully constructed “founding myth” – here, as Signe Rehling Larsen shows, Empire is conspicuous “mostly in its absence”. Law, particularly the slogan ‘integration through law’ embraced by EU lawyers to this day, contains an implied linearity and progress narrative that could be seen as civilisational. Utopia seems to be its destination or, at the very least, what it preserves. However, as Ruth Houghton and Aoife O’Donoghue demonstrate, utopia (in international law) is both the ‘no-place’ and the ‘good place’ with significant entanglements with colonialism. Moreover, as Eve Darian-Smith argues, repeated delegitimisation and lack of recognition of non-Western constructions of European imaginaries reflect colonised utopias and civilisationalism.
Is the rule of law a utopia, or is it given utopic status? If it is, it is dangerously evasive to ignore Europe’s imperial and colonial pasts within the rule of law out of fear that acknowledgement may embolden illiberal and autocratic narratives. It thwarts an opportunity to reconstruct the rule of law by contending with its structural deficiencies as a legacy of its histories, reproducing division and perpetuating violence antithetical to peace. This type of evasion and siege mentality is lamentably a ubiquitous feature of EU legal studies, a place fearful of productive conflict, and at the same time consumed by crisis. Yet, avoidance has vitiated the utility of critique and continuously narrows the space for essential repair within the rule of law infrastructure.
(De)coloniality and empirical EU legal studies
Iyiola Solanke’s calls for embedding decoloniality in empirical EU studies warned against the pitfalls of “shifting” sidewards instead of forwards. Solanke argues for a more explicit agenda for foregrounding decoloniality in approaching the study, teaching, and practice of EU law. To decolonize EU law, Solanke proposes three fundamental sites of rethinking law: purpose, principles, and practice – all of which include a pro-democratic commitment.
A small part of the way, perhaps, is critical legal storytelling. I will turn to history again. Making different methodological choices in EU legal studies has much to draw from the promise of new approaches to legal historiography and the choices made in storytelling. What is the story of the foundations of Europe and beyond? What does it look and sound like and where has it come from? Who and what is absent? Why? This is part of the post- and decolonial project but does not maximise its potential. Legal storytelling involves a process-based approach that moves the study of EU law beyond case findings and established principles – it is an imperative act of re-excavation and deconstruction. A reconstruction strategy should not just identify actors, contexts, and the narratives that emerged. Instead, it requires a commitment towards locking horns with path dependency to focus on alterity or otherness. Critical legal storytelling should use a more comprehensive array of comparative counterpoints beyond the core-periphery (and urban-hinterland) divide foregrounding colonialism and coloniality. Revisiting and widening the scope of archival research is vital to this enterprise; acknowledging core-periphery – ‘old’ and ‘new’ democracy – divisions but also seeing the significant racial, gendered, and socio-economic (to name a few) blind spots as legacies of colonialism both ‘within’ and ‘outside’ Europe.
Applied to EU law, this approach seeks to unlearn and relearn, moving away from the blinkered view of a foundational tabula rasa and ground zero, placing it within its imperial and colonial context. These entanglements bind the so-called internal and external histories of the European Union together, with the successive and potential enlargements renewing the urgency of this conversation. The fictitious lines (and the resultant legal fictions upholding them) between what is external and what is internal have become even more challenging to sustain. As Europe’s legal (as well as political, historical, etc.) imagination narrowed and focused around an equally circumscribed standard of Europe, so did its ability to confront the ‘hard questions’, conflicts and tensions. If the EU and its Member States indeed form a dialogical constitutional community, asking how coloniality foments exclusion, marginality, and the resulting injustices is a central task – especially if the EU is serious about the rule of law.
(De)coloniality and the rule of law
That the rule of law is a vital component of confronting and stemming the reproduction of injustice goes without saying. However, a thin conceptualisation of the rule of law has done it no favours. The ambiguity of the EU rule of law discourses and its checklist approach is glaring. Martin Loughlin recently argued that the rule of law “has become a slogan in search of a concept”; one that “is a resonant but vacuous phrase that expresses whatever the heart desires.” Its immunity, shielded by utopianism and universalism, has contributed to its stasis. If the EU rule of law is to be viewed dialogically, and European constitutionalism as “parasitic” on national constitutionalism, this thinness in engagement with the rule of law will continue to fuel divisive universalism. In EU legal studies, the conceptualisation of the rule of law is only rarely contested within the context of its imperial pasts.
Returning to legal storytelling, as Member States interact with the EU rule of law, it is critical to recall that all Member States have their own imperial and colonial histories of the rule of law, which inevitably colour this interaction. This historical legacy shapes Member States’ legal systems and rule of law infrastructures. Malta and Cyprus, for example, provide fascinating examples of this but remain vastly understudied. While focusing on countries like Orbán’s Hungary is entirely merited, a disproportionate fixation on post-socialist interactions with the rule of law feeds a significant analytical blind spot, and arguably tells a larger story. It also fails to open a space for a Europe-wide integrated approach to repairing and upholding the rule of law. This reality affects all of Europe. It normalises the assumption (quoted from the Venice Commission) that “[t]he notion of the rule of law is […] often difficult to apprehend in former socialist countries, which were influenced by the notion of socialist legality”. This conceptualises rule of law myopically. It is, then, arguably exclusionary by design. This is one of the reasons why the sources of the European rule of law should not be exempt from critical contention.
How can this be investigated in practical terms? The living legacies of colonialism and its effects can be approached empirically in multiple ways. Taking an example from my re:constitution fellowship research on Malta and the rule of law; qualitative methods, including extensive archival work and elite and non-elite semi-structured interviews across the country’s rule of law infrastructure, were combined to investigate coloniality and colonialism’s shadow. A longer-term perspective could (and should) also feature a constitutional ethnography. The decolonisation of Malta took place sixty years ago – it was granted independence from Britain in 1964. However, successive post-independence governments in Malta constructed the state on top of the embers of carefully cultivated and embedded colonial administration(s). These embers are arguably still alive, burning “black holes” into the country’s rule of law infrastructure. This is a dialogical enterprise and should be coupled with reconstructive archival investigations into the broader European conceptualisation of the rule of law. New pathways towards understanding the rule of law’s deficiencies emerge from investigating contexts “upwards” or from below, problematising the rule of law’s imperial and colonial blind spots.
Decentering, decolonisation and decoloniality
Decentering does not mean decolonisation, and decolonisation does not equal decoloniality. In 2013, writing from an EU external relations perspective, Nora Fisher Onar and Kalypso Nicolaidïs wrote that “Europe’s existential crisis” is fertile ground for a “pragmatic as well as normative imperative and may be the best hope for reinvigorating European agency in a non-European world.” A powerful multi-authored editorial challenges the latter, calling for decolonisation beyond just decentering to reinvigorate Europe itself. It takes issue with its ambiguity in tackling hierarchies or hegemony premised on the colonial/modern divide. A decolonial approach moves towards acknowledging “historical epistemological injustices, prioritise[s] the voices and narratives about ‘Europe’ of those communities that have been historically subjugated”, challenging objectivity in accompanying research agendas that lead to coloniality of power.
What is coloniality? Nelson Maldonado-Torres provides an accessible definition:
“Coloniality, instead, refers to long-standing patterns of power that emerged as a result of colonialism, but that define culture, labour, intersubjective relations, and knowledge production well beyond the strict limits of colonial administrations. Thus, coloniality survives colonialism.”
Decoloniality, in turn, is a process of unsettling and rethinking, restitution and reckoning, and is productively disruptive despite its discomfort. It empowers and foregrounds the possibility of a sustainable practice that imagines a more expansive way of being and otherness. However, to allude to Lena Salaymeh and Ralf Michael’s work on deploying decolonial approaches to legal studies, an integrated strategy towards delinking colonialism and the law should see excavation, deconstruction, and reconstruction operate in tandem. Foluke Adebisi writes that the solutions or outcomes of such strategies should go “beyond representation, inclusion, diversity, and equality… it means seeing law through the eyes of the world that emerges from coloniality.” Decoloniality is a foundational practice or starting point rather than simply being supplementary.
Since the struggle towards constructing a future remains rooted in the stasis of civilisational mythologies, crises are inevitable. Rooted in epistemic injustice, it reproduces logic(s) that move Europe from crisis to corrosive crisis instead of breaking with the past and the patterns that inhabit it. In law, this means contending with justice itself. Recognising Europe as a space and place that contains a plurality of realities is implicit in this task, as Loic Azoulai contends. In some areas, this has led to significant gaps in EU law and damaging lacunae that are more immediately explicit than in other areas, e.g. social law, equality and migration. Fortunately, excellent decolonial work on this front has picked up significantly in recent years, and even if it remains relatively sparse, it is disrupting the replication of pervasive blind spots.
(De)coloniality and the straw man
“European legal scholars… commit an injustice when someone’s understanding (of themselves, their surroundings, what matters) is impaired by dominant ways of looking at the world.” Martijn Hesselink
I would like to end with a statement that should not be controversial, disarming the straw man in the room. All Member States remain in the EU – and have joined the EU – by choice. Yes, of course. However, it does not follow that membership means that the EU (and its institutions) are beyond accountability. ‘Unthinking’ law or unquestioning legalism risks rule by law instead of rule of law. Scholars of EU law need to remain responsive to this fact, acknowledging respective positionalities, blind spots and possible biases. Self-referentiality, grounded in universalism, is not saving the EU – instead, limiting institutional accountability weaponises narratives against the EU. It is an anti-democratic posture in nature, form, and function as it presumes that the rule of law and, indeed, democracy itself is infallible. It is not. Decolonial approaches offer a constructive and urgently needed space towards dialogue and reconstruction.
This research is undertaken under the auspices of the re:constitution fellowship.