In 2024, India introduced a new criminal code, the Bharatiya Nyaya Sanhita (BNS), replacing the Indian Penal Code (IPC) of 1860. Complementing this, the 1974 Code of Criminal Procedure (CrPC) was replaced by the Bharatiya Nagarik Suraksha Sanhita (BNSS, literally: Indian Citizen Safety Code), while the Bharatiya Sakshya Adhiniyam superseded the 1872 Evidence Act – all legislations originally introduced by the British. The new codes were announced by the Indian government as means of decolonising Indian law. As in other fields where the current Bharatiya Janata Party (BJP) government has adopted the language of decoloniality, such as their reforms in science and education or their historical narratives, critics have pointed out that the new criminal code may be considered more a continuation of colonial authoritarianism than an emancipation from it, albeit with Hindi names this time.

The BNS might be an overly obvious example of shallow decoloniality, easy to deconstruct as its opposite, since it so evidently continues colonial era notions of punishment and order. Yet the adoption of the discourse of decoloniality by the Hindu right in India, as well as by other ethnonationalist governments around the world, points to the problem that any decolonial project faces: Who is to define which normative alternatives we should appeal to when seeking to rid concepts and institutions of their colonial legacies? This brings us to the underlying question: What is the purpose of reflecting on colonial legacies in law? Is it epistemic justice? And, if so, whose epistemic justice? What, and who, is epistemic justice good for? What is the injustice entailed in epistemic injustice? Does it not consist of the fact that the conceptual legacies of colonialism in law perpetuate the structures of inequality established by colonialism and carried on in post-colonial times? Is epistemic injustice, therefore, primarily a problem because it underlies and perpetuates material injustice? This would imply that the purpose of reflecting on colonial legacies in contemporary law is to enable more equality, not merely epistemologically but materially. Which immediately raises the question of whether equality is in itself a colonial Western value, as Louis Dumont, the theorizer of hierarchy, suggested.

What Makes a Concept Colonial?

Arguably, concepts remain colonial inasmuch as they enable the reproduction of colonial social relations, that is, racialised structures of property and inequality. Thinking about decoloniality in terms of “origins” falls back into colonial knowledge patterns of difference and authenticity. These are easily incorporated into the most pervasive colonial legacy, namely the triad of nation state, property, and capitalism. Colonial legality organised territory, persons, and relations through imaginaries tied to communities and (legal) traditions. This incorporated non-Western social relations into its logic: Law recognises and protects entities by fixing their identity and attaching exclusive or hierarchically ordered entitlements to that identity, thereby engendering conceptions of persons, rights, and membership that mirror capitalism’s notion of private property. This legal infrastructure of recognition, in which law extends status and protection to things and collectivities as stable and exclusive bearers of rights, is reintroduced in decolonial claims that foreground epistemic sovereignty. Even if intended otherwise, in their notion of authenticity they emulate and reproduce colonial – or romantic – notions of (normatively integrated) collective identity and thus make for their easy adoption by ethnonationalist projects.

Anti-colonial Practice of Law

If reflexivity in law is taken seriously as law’s exposure to marginal knowledges and practices, the primary movement of reflexive transformation is not alternative doctrinal categories, but the legal reasoning found within social struggles. These struggles start from a given situation shaped by colonial legacies as they are inherent in the entanglements generated by global capitalism, and seek to undo them. They do this by, among other things, employing the legal means available to them, thereby infusing the latter with their often anti-colonial (rather than decolonial) aspirations. We see this in the movements that have employed law in striving for environmental and climate justice, fairer trade relations and non-exploitative supply chains, food sovereignty, land rights, and women’s rights. Their legal actions range from strategic litigation to a creative use of administrative complaints, participatory mechanisms, and international human rights processes.

The employment of law in such struggles has often been met with scepticism in critical legal scholarship and legal anthropology, where a long tradition going back as far as Otto Kirchheimer’s analyses of juridification casts doubt on the transformative potential of law. The argument has been that liberal law unavoidably infuses any social struggle with the individualism inherent in liberal conceptions of rights, depoliticising collective struggles.

Yet these movements that use law alongside more overtly political means to struggle against the colonial legacies inherent in the property regimes of global capitalism could be said to be evidence of a reflexive globalisation in and of law. In their employment of law, they introduce normative propositions informed by diverse normative sources – legal and non-legal – into legal reasoning. Pragmatically employing any norm that might provide them legal benefit, they relate the legal norms that they can get hold of to their claims, and infuse them with concrete novel meaning. The normative propositions articulated in light of their concerns engender incremental normative change in what may be called “reverse translations”. Thereby, I argue, not only do they incrementally transform – potentially, and with many failures – normative meaning, but they also challenge the basic building blocks of liberal law – also its epistemic ones.

Colonial histories continue to shape legal institutions via the very conceptualisation of the social, spatial, and temporal reach of the relations that law considers. Contemporary legal institutions could be said to “cut” interdependent chains of action into distinct units: Social units in the person and related concepts of cause and intent; temporal units that define how law considers the temporal scope of an event, including its beginning and end; and units of practice when practice is divided into separate legal fields. Particularly in international law, different bodies of law are relatively independent of each other (as Keebet von Benda-Beckmann explained lucidly in her unpublished manuscript ‘The Contexts of Law’): separating trade from human rights, labour law from ecological issues, etc. It is precisely these “cuts” that many social movements employing law challenge, insisting on the fact that the uncoupling of these fields of law is incongruent with the factual interdependence of the interactions that they regulate – and which cause harm and suffering. By contesting the conceptual cuts that liberal law makes through time, space, and fields of practice, such movements contest the limits of what is recognized and even speak-able in law. The legal reasoning of social struggles makes courts, treaties, and administrative agencies into sites where subaltern interpretations of norms confront capitalist legality. Each partial accommodation or recognition of their claims leaves traces – precedents, institutional reforms, new channels for participation – that can be reappropriated in subsequent struggles.

The invocation of existing legal norms provides a shared language for common aspirations; it provides for connectivity and enables alliances across diverse positionalities and histories. Even though these invocations thus always also simplify and homogenize different experiences, and although they carry liberal law’s conceptual baggage – such as individualism, the propertisation of rights and obligations, and bounded sovereignty – the meanings of these norms are unsettled when movements insist on linking them to broader structures of exploitation, dispossession, and ecological destruction. Epistemic change is incremental, partial, precarious. The resulting normative entanglements therefore cannot be reduced to either the reproduction or the negation of liberal legality; they instead constitute a messy field in which norms from different normative orders become articulated with one another in an unsystematic manner that always relates to concrete struggles and contestations.

Reflexive Law

Such normative entanglement goes beyond vernacularisation. It not only merges norms from different normative orders, it also produces novel relational meanings that cut across legal fields and jurisdictions, striving for trans-jurisdictional coherence. It is thus at base anti-pluralist. It does not revert to a claim for the coexistence of multiple integrated legal orders, or even epistemic difference; rather, it produces new meanings that form an unsystematic normative relationality. Because this anti- or non-pluralism challenges the differentiations that liberal law relies on, the transformative potential of these normative innovations addresses the basic grammar of extant law. The anti-colonial potential lies in how movements force law to confront factual entanglement in a way that exceeds current institutions of jurisdiction. Reflexive law, from this vantage point, is an ensemble of responses to the dynamics of global entanglement. It must be understood as a practice of polyvocal contestation in highly unequal relations, where legal forms are continuously problematised by actors drawing on multiple normative sources: cosmologies, memories of struggle, anti-colonial and feminist ethics, ecological knowledges, and solidarities that exceed jurisdictional boundaries. Law’s reflexivity lies in the cumulative effects of these juridico-political contestations, in which its categories are stretched, re-signified, and sometimes fractured. Social movements striving for environmental, economic, gendered, and agrarian justice seek not only epistemic recognition but material justice, such as the redistribution of resources, the protection of livelihoods, the mitigation of climate harms and the recovery of land. In pursuing such goals, they generate epistemic change in legal concepts. They do not necessarily succeed in altering the relational architecture of law. They often fail, and the responses of authorities might entrench the status quo and deepen legal exclusion. And yet, their attempts to make law more open to insurgent practices challenge the colonial nexus of person, property, and authenticity more fundamentally than do pluralist versions of epistemic justice. This connects to the underlying premise of reflexive globalisation and the law driving the agenda of Centre for Advanced Studies RefLex.

Rather than reverting to allegedly autochthonous legal alternatives, which, for example, the supposedly decolonial measures of the Hindu nationalist government in India purport to embody, they address the persistent structures of colonialism when they name the damage done in available legal terms; blame responsible actors who cause, profit from or enable the damage, thereby differentiating legal responsibility to encompass complex chains of action; and claim structural change. Only by making law responsive to the structural legacies of colonialism as they inhere in capitalism, the nation state, and the notion of private property that links both, can law move towards an un-colonial future.