Search the archive.

The relationship between terrorism and media can be studied on three levels; “terrorists and government”, “terrorists and media” and “government and media” (Crelinsten, 1989). All three actors use and manipulate language to suit their purpose. When the media are used by the governments especially in the case of the War on Terror, not only the government policies are articulated and made legitimate, but also the portrayal of the enemies’ identities is built around the discourse of ‘others’, where at times they are dehumanized via animal metaphors like rat, hunt, and snare, etc. (Steuter & Wills, 2009) and object metaphors like elements. Such dehumanizing strategies are used to depict enemies as monsters not worthy of humane treatment (Maiese, 2003). The media are not only used by the governments to channelize their views and to shape public opinion but recently the terrorist organizations have also been making use of media to disseminate their views. They also use the media for propaganda to achieve their goals (Wilkinson & Gunnell, 2000) and spread terror (Weimann, 2005). Rothenberger et al. (2018), have employed Critical Discourse Analysis to study the discursive strategies used by ‘terrorist groups’ to build their identities by using websites to communicate. Similar methods have been employed to scrutinize how magazines produced by Al-Qaeda and the Islamic State (IS) position their identities. The results indicate differences in the policy goals where the former is directed towards the outward change i.e. other countries, whereas the formers’ aim is to declare the Caliphate (Novenario, 2016). When it comes to media as an actor, Schudson (2011) gives three main reasons which compel American journalists to abandon a “neutral stance”. “In moments of tragedy, journalists assume a pastoral role” (Schudson, 2002) means that while covering tragic stories, an element of grief is added into the script and an atmosphere of gloom is created. Then, in moments of “public danger” (ibid.) journalists abandon an objective approach. By “public danger” Schudson means danger posed by “hurricanes’ and ‘terrorists”. The third situation arises when there are ‘threats to national security’ (ibid.). The 9/11 event provoked all these three factors, there were deaths of innocent people, there were threats to the public by terrorists, and lastly, it was a matter of national security. Under normal circumstances, journalists would have covered the event by detaching themselves from the public, but it was a matter of war, so journalists had to abandon objectivity. Soon after the collapse of the twin towers “the media hunt for the villains had begun” (Huffington, 2001). President Bush’s speeches were hugely backed up by the US media. The rhetoric had once again begun, “Us vs. them,” (Clift, 2010) “peace lovers vs. terrorist,” “democracy vs. tyranny” etc. Lewis (2014), explicates how the Bush-Cheney administration had built up their discourse on key terms like ‘freedom’ and ‘democracy’.

This security logic rested on the assumption that order was a necessary pre-condition for capitalism to thrive both domestically and globally. Modernisation programmes in the ‘developing world’ and the War on Poverty at home both relied on the intersection of economic development with security. W. W. Rostow, the eminent economist and national security advisor to Johnson, put it succinctly to Johnson in 1967 when he said: ‘I was much struck by the parallels between your formulation of domestic policy and those you have applied to foreign policy. At home your appeal is for law and order as the framework for economic and social progress. Abroad we fight in Vietnam . . . [to] build a future of economic and social progress.’39 Thus, developmentalism, policing and militarism became pillars for the advancement of capitalism and the restoration of a US-led global imperial order. This was the context for the rise of counter-insurgency doctrine, which rested on development plus force.40 As one expert put it, counter-insurgency is ‘armed social work’.41 Resistance to this order was organised by anti-colonial and anti-imperial forces in countries in the Global South, and by social movements domestically. From the Civil Rights and Black Power movements to the anti-Vietnam War movement, US domestic and foreign policy was called into question. These movements took a radical turn in the mid-1960s. As Gilmore explains, from the LA Watts uprising onwards radical, Black, Brown, Yellow and Red Power movements fought the ways the state organized poor peoples’ perpetual dispossession in service to capital. Radical white activists, students, wage workers, welfare rights agitators added to domestic disorders by aligning with people of color: they also launched autonomous attacks against symbols and strongholds of US capitalism and Euro-American racism and imperialism.42 In 1975, Samuel Huntington, drawing the lessons for the elite of these movements, would decry the ‘excess of democracy’, arguing that if the US could not control its domestic populations it would not be able to retain its status as the pre-eminent ‘hegemonic power in a system of world order’.43 The Trilateral Commission, an instrument of the liberal elite, which published Huntington’s essay, set out to address what it termed the ‘crisis of democracy’ by forming a global alliance of nations in North America, Western Europe and with Japan. The solution to the crisis involved intervention into various spheres of social and political life. One dimension was the use of counter-insurgency methods to suppress dissent. The US’s expanded policing capacities around the world coincided with incarceration domestically. As Stuart Schrader shows, the security experts who developed counter-insurgency doctrine and practices did so by drawing initially on insights from domestic cases, which they then applied abroad, learning lessons that were subsequently brought back home.44 Saigon and Los Angeles were but two points in an emerging global grand strategy designed to restore order and US economic and military hegemony. In their now classic analysis, Policing the Crisis, Stuart Hall and his co-authors first identified the turn towards an ‘exceptional state’ and the use of racism as a means to address structural crises. In the UK, black youth were criminalised and a moral panic generated around black ‘mugging’. Despite the lack of any real uptick in the type of crime called mugging, this new racial project became the pretext to enact authoritarian solutions and legitimate draconian policing. As they state, ‘[p]olicing the blacks’ became ‘for all practical purposes, synonymous with the wider problem of policing the crisis’.45And, if ‘mugging’ came to the UK from the US, ‘fully thematised and contextualized’ and ‘embedded in a number of linked frames’,46 ‘terrorism’ in its particular racialised form of ‘Arab terrorism’ and later ‘Islamic terrorism’ came to the US as a collaborative project between conservatives in Israel and the US. Together with urban crime, riots, feminist agitation, and anti-war protests, terrorism became part of a generalised moral panic that the national security state needed to subdue in order to restore order, the stability of capitalism and global imperial dominance.

The central flaw in the argument advanced by the CER authors stems from an apparent lack of awareness of contemporary scholarship on the comparative history of imperialism and colonialism. Criticism of the Eurocentric assumptions that inform much mainstream social science is certainly warranted, as is critique of the excessive influence exerted by institutions such as key journals based in North America or Europe. However, when critical arguments rely on selective and historically flimsy claims for the uniquely colonial quality of modern Western culture, the risks are twofold: firstly, and fundamentally, actually to sustain or reinforce Eurocentrism by deflecting the critical gaze from non-Western societies and the patterns of oppression (‘colonial’ or otherwise) therein; and secondly, by the same token to weaken or discredit the case for a more inclusive and culturally sensitive approach to the comparative analysis of education.

The empirical and theoretical flaws of this approach are intertwined with the problematic language in which its arguments are typically couched. Historical and anthropological scholarship on East Asia and other regions amply demonstrates that colonialist or neo-colonialist attitudes and strategies of domination are not and have never been a Western monopoly. But decolonial theory posits the more or less uniform victimhood of non-Western ‘others,’ deriving claims for the moral superiority of ‘authentically’ indigenous perspectives. Debating the validity of such claims is complicated by an emphasis on ‘positionality.’ Readers are exhorted to judge an argument less by standards of evidence or logic (often portrayed as camouflaging a Western ‘will to power’) than on the basis of the writer’s self-identification or ‘positioning.’ The language of ‘epistemic violence,’ ‘secure spaces,’ ‘epistemological diffidence,’ ‘border thinking’ and ‘location’ suggests an image of the critical scholar as revolutionary guerrilla, valiantly sniping at Western hegemony from his or her [their] marginal redoubt. In so far as this reflects a desire for a more just, tolerant and sustainable society – one that values diversity as a resource for mutual learning – it is admirable. However, if we seek to combat oppression, in the educational sphere or beyond, it is incumbent on us to pick our enemies, and our language, carefully. Aiming a blunderbuss at the supposedly illegitimate or self-serving ‘universalism’ of ‘modern Western social science,’ while ignoring how calls for indigenisation and ‘authenticity’ are used to legitimate highly oppressive regimes across Asia and elsewhere, is to risk undermining those universal social and political values (freedom of expression, civil liberties, rule of law) upon which critical scholars themselves rely.

Because of these twin influences of standardization and stability, property as a system can seem uniquely immune to reform. But when we scratch at these initial instincts, we see that the actual experience of property systems over time, and around the world, reflects a high degree of pluralism and dynamism. This Section explores this reality as a window to the broader range of available options for the future of American Indian land tenure.

1. Pluralism

In our aspirations for progressive change, engaging with the law is not a free choice among tactics. It is a necessity. Egalitarian activists are routinely forced into legal engagement by the omnipresence of law as a violent force imposing hierarchical order and harsh punitive constraints on oppressed populations. Although activists are often motivated by the quest for legal recognition of rights claims, offensively mobilizing law to support egalitarian struggles is only a small part of movement appeals to law. Defensive actions to evade law’s repressive force or to protect previous gains are often much more significant. In our view, there is surprisingly little rigorous theorizing about the different types of struggles on the terrain of law, the most useful indicators of effective legal action, and especially the measures of egalitarian or inclusionary change.1

Law is an enduring site for progressive democratic contestation. Although official law is often a tool of repression, legal norms and institutions can also be resources for egalitarian rights claims, and, at certain historical moments, even social transformation. No matter how radical one’s political aspirations, the necessarily long-run character of revolutionary social transformation requires a series of intermediate steps, including those on the terrain of law. As the British socialist E. P. Thompson (1975) asserts,

First might be the question of travelling theory: how well do the geographical, politico-economic, and material-ecological relations named by extractivism translate beyond a Latin American context, or across time from the early phase of colonial conquest in the sixteenth century to the twenty-first-century present? This question is raised explicitly by Terian, and tacitly by other authors’ attention in this special issue to sites in Romania, Ukraine, Saudi Arabia, Mozambique, Ghana, the U.S. Gulf Coast, and New Mexico; it lies, too, at heart of Parks’s instructive assessment of ‘resource poetics’ in Appalachia. Indeed, the itinerary of our own argument, ranging across worlds and continents, assumes a considerable conceptual reach and mobility for extractivism. Still, perhaps it is better to write of extractivisms, in order to attend carefully to the dynamic and diverse particularities of relation across space and time.

Second might be the risk of conceptual creep and adjectival ubiquity. Just as Anthropocene seems to be increasingly – and often rather loosely – invoked as a new synonym for modernity, there is a danger that extractivist may become the adjective and epithet du jour. Along with longstanding invocations of neoliberal globalisation, ‘settler colonialism and extractive capitalism’ (to cite one recent expansionist account of extractivism) have now been added to an excoriating litany of exploitative badness – that is, the villainous forces shaping the past and present and deranging the future.Footnote13 Our concern about this litany derives not from any doubt about the malevolence of these forces; rather, we wonder about the vitiating effects of a lack of terminological precision in adjectives whose modifying, specifying force threatens to dissolve into synonymic restatement. In too much discourse today, all colonialisms are settler colonialism, and all capitalism is extractive, just as a notional neoliberalism has long been the very air we breathe. Instead, what if we hold on to extraction as a specific moment in, or aspect of, particular versions of economic production, with implications for labour, value, and profit? This approach would insist upon understanding extraction (or extractivism) not as a synonym for capitalism but as one potential aspect of it, which stands in dynamic relation to other parts (and which also, as is sometimes forgotten, played an important role in other economic modes, not least the political ideology and technological developmentalism of the former Soviet Union). With regard to the particular role of extraction within capitalism: Is the metabolic rift between country and city identified by Marx (and traced through cultural imaginaries by Raymond Williams) properly described as extractive?Footnote14 How are neoliberalism’s promises premised on extraction? Are all instances of privatisation or asset-stripping to be understood as ‘extractivist’, rather than only those which involve things like land enclosures or mining concessions? What, we ask, is extractive (or extractivist) about extractive capitalism, if, as Imre Szeman has observed, extraction is on its way to becoming simply ‘the name for any process through which value is generated for capitalism’?Footnote15

Diehard degrowth advocates might now point out that such a technology-led plan to tackle climate change will require large material inputs to get every thing electrified and get new renewable power plants built. And because “you can’t produce stuff out of thin air,” as their slogan goes, that is the end of innovation; we are simply kicking the can down the road because, on a finite planet, we are bound to run out of raw materials.

On this point, as President Obama liked to say, “let me be as clear as I can be.” Innovation, and therefore economic growth, will not run out of materials, because the very definition of a production material depends on what is available. This is something we have observed throughout human history. Societies solve problems using what they have on hand. Think of a widespread basic technology like writing, developed by many societies independently to meet exigencies of commerce first, and then knowledge accumulation more broadly. Depending on location and existing technology, several writing materials have been used throughout history—stone tablets, clay tablets, bamboo slats, papyrus, wax tablets, vellum, parchment, paper, and copperplate—all depending on local availability. The same could be said of basic navigation, which has been with humanity since prehistoric time: early vessels were built using techniques and materials from bamboo and logs to reeds and leather, based on material availability and local needs.

In their influential analysis of Critical Management Studies (CMS), Fournier and Grey (2000) argue that CMS scholarship is driven by three basic principles: denaturalization, reflectivity and non-performativity. Denaturalization deconstructs the seemingly immutable ‘realities’ and ‘rationalities’ of managerialism while exposing the wealth of alternatives that reside in the shadows of organizational life. Reflectivity challenges the dominance of positivism in the methodologies of mainstream management research, revealing how all social scientific investigation is underpinned by political assumptions. Drawing on Lyotard’s (1984) notion of instrumental performativity, the principle of nonperformativity rejects the means-ends rationality that governs many organizational situations, especially under neoliberal capitalism characterized by a brazen cost-minimization/ profit-maximization logic (Fournier and Grey, 2000).

The principle of non-performativity has recently been questioned in a number of articles published in this journal and elsewhere. These authors suggest that by critically distancing themselves from the concrete activities of managers, researchers may miss opportunities to intervene and make a difference for the better. For example, in their influential article, Spicer et al. (2009: 538) argue that the principle of non-performativity needlessly isolates CMS from organizational practitioners. This in turn fosters a corrosive ‘cynicism and negativism’ whereby scholars ply grand critical theories that have little relevance to everyday organizational challenges. Others similarly maintain that the principle of non-performativity fails to offer ‘practical’ guidelines for managers (King and Learmonth, 2014); misses crucial opportunities to ‘collaborate’ with middle-managers and stubbornly objects to becoming ‘more relevant to practice’ (Wickert and Schaefer, 2014: 7); is elitist in how it ignores practitioner management texts in favour of ‘canonical perspectives’ associated with Marx, Foucault and the Frankfurt School (Hartmann, 2014: 619, also see Clegg et al., 2006).

There are ~370 million Indigenous people, across 70 countries worldwide. It is recognised that Indigenous peoples practise traditions unique to their cultures, and that they retain social, cultural, economic, and political characteristics, which make them distinct from the majority cultures in lands that have been colonised. Histories of Indigenous peoples have highlighted the negative impacts of those majority cultures, most notably through conquest and colonisation. The ability of Indigenous peoples to survive and flourish, despite these impacts, often rests on the enterprises they create to achieve their goals for social change and social justice.

Indigenous entrepreneurship is a foundation for understanding Indigenous enterprise, for it is often Indigenous entrepreneurs that create and operate such entities. Indigenous entrepreneurship has been defined as, ‘the creation, management, and development of new ventures by Indigenous people for the benefit of Indigenous people. The organisations thus created can pertain to either the private, public or non-profit sectors’ (Hindle & Moroz, 2010: 363). Hindle and Moroz developed a framework for Indigenous entrepreneurship research that highlights the relative importance of communities rather than individuals, and which emphasises culture and social norms over resources and profits.

Like postcolonial studies, research conducted by TWAIL scholars—known affectionately as “TWAILers”—aim to address problems in developing countries or the proverbial “Third World,” many of which undoubtedly were caused by colonialization.77 Nevertheless, the target of TWAIL is the structural bias of international law—in particular, how the law has harmed, and continues to harm, developing countries. As Antony Anghie and B.S. Chimni explain: “[T]he experience of colonialism and neo-colonialism has made Third World peoples acutely sensitive to power relations among states and to the ways in which any proposed international rule or institution will actually affect the distribution of power between states and peoples.”78 Some TWAILers have gone even further to assert that international law “carries forward the legacy of imperialism and colonial conquest.”79

A TWAIL critique of international intellectual property law exposes how this area of law— or, more precisely, the developed countries’ version—does not embody universal norms.80 The West-centric version became universal merely because it was “backed by great economic and military might, rather than because of its ‘appeal to common sense or . . . innate conceptual force.’”81 As Rosemary Coombe reminds us, “The range of Western beliefs that define intellectual and cultural property laws . . . are not universal values that express the full range of human possibility, but particular, interested fictions emergent from a history of colonialism that has disempowered many of the world’s peoples.”82

The term has become a mantra, but “decoloniality” has almost no precise meaning and is used as an ideological trope. It points in a “progressive” sense towards a status quo ante, almost an arcadia descended from an anti-slavery Victorian regret that colonialism had robbed the “native” of his “innocence.” That there was something purer before colonialism and its particular manifestation of imperial globalism.

It is a term brandished often in African studies, but the imperial outreach impacted most of the world. And the status quo ante means many different things in e.g., China, where the world before European incursion was very different to that of the conglomerated and homogenised “Africa” of easy discourse, never mind its 2000 languages, ethnic groups, and senses of history.

The comparison between traditional knowledge and IP has drawbacks, particularly since, as noted earlier, advocates for the former are not typically interested in IP analogues. Nonetheless, the kind of rights that traditional knowledge holders seek have particularly strong parallels in copyright and trademark law. And for all practical purposes, any international regime for traditional knowledge will invariably be shaped both in opposition to, and in coordination with, the universe of existing IP rights in which the public domain plays an integral role. How the public domain issue is structured in the context of traditional knowledge will require a principled consensus about the rights of resource holders to assert control over their knowledge assets and to defend the lifestyles and institutions that produce them.

Several international legal instruments already recognize this right of control, most notably the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).54 Article 11(1) of UNDRIP provides that “Indigenous peoples have the right to practice and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as . . . artefacts, designs, ceremonies, technologies and visual and performing arts and literature.” 55 Article 31(1) of UNDRIP further provides that “Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.” 56 In the same vein, the Convention on Biological Diversity (CBD) 57 and its Nagoya Protocol 58 explicitly defend the right of indigenous groups to hold their knowledge, to control access to it, and to benefit from its utilization. 59

The Europeans assumed that whatever intergenerational Indigenous knowledges and intellectual property laws and rituals they "discovered" were not legally protected and were part of the audacious metaphor of "public domain" (publicijuris) and could be freely accessed, used, or taken. 16 The Eurocentric public domain determined that these Indigenous peoples' knowledge and folklore were not new, original, or individual. Instead, the public domain characterized these knowledges as ancient natural traditions. The irony of this rejection of protecting these ancient knowledges is the source of the Eurocentric idea of the public domain, and intellectual property laws are based on nature. 17 Only what the Europeans extract from nature is legally protected--the Indigenous peoples' extraction from nature is not legally protected. Their knowledges are assigned to the public domain, which is open to exploitation and appropriation by anyone.18

These Eurocentric fictions in Canada and beyond have become obstacles to the legal protection of Indigenous peoples' knowledge and creative manifestations. In intellectual property laws, these fictions continue to serve as an implicit assumption in the Eurocentric metaphor of the public domain 19 or the common heritage of humanity.20 Intellectual property law seeks to protect the selected products of original thought and the physical manifestations or expressions of Eurocentric knowledge and ideas by assigning and enforcing them as legal rights. These Eurocentric concepts and categories continue to raise difficult questions about protecting Indigenous knowledge at the intersection with European innovation policy and knowledge governance.

Williams offers a starting/ending point for imagining where anti-racist and anti-colonial activists should commit their energies. For instance, the racial dynamics of the conflicts between R&B and hip hop and Gaye and Pharrell may have justified advocating for neither or both parties in an amicus brief, by critiquing the divide-and-conquer ethos of the situation and the case and by critiquing the capitalist model around which victory was built. Advocating for intellectual property egalitarianism in a way that is legally and politically legible requires pushing back against accepted (intellectual) property doctrines, which conceal racial logics. The Korematsu Center’s amicus brief in Tam, for instance, performs such a task by grounding its opposition to trademarking the Slants’ band name in the racial histories of the United States, specifically those that resulted in the internment and economic disenfranchisement of Japanese Americans during World War II. In many ways, merely creating counterscripts—i.e., advocating in an amicus brief even without attendant relief—accomplishes this end. Repeatedly engaging and refusing those myths that constrain creatorship, citizenship, and personhood pushes back against whiteness as property and shifts public cultural conversations.

One easy objection here is that an amicus brief that tells a just and compelling racial story does not have legal impact. However, this conclusion is both untrue and, at least in part, irrelevant. The Color of Creatorship has demonstrated how the unspoken desires that structure the economics of intellectual property law are based not in fact but in myths and feelings. Racial scripts are about attachments to social constructions of race, property, nation, and person, not objective or rational conceptions of those terms.

These examples also set the stage for thinking about how lawyers and activists who are invested in anti-racist and anti-colonial struggles might orient themselves toward intellectual property law. Thinking about and remaking legislation, legal doctrine, and precedent are certainly important. But so too is performative resistance within the confines of existing practice. Being conscious of the racial histories of intellectual property law and committing to progressive racial ethics can drive considerable change in the direction of equity while law is being reimagined.

But IP rights are not purely about commercial transactions. Copyright law, which protects literary and artistic works, has both economic and dignitary aspects. For example, the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention) recognizes moral rights, such as the right of the author to be named.22 The TRIPS Agreement, which emphasizes the economic utilitarian approach to IP protection, expressly excludes the protection of moral rights as an obligation. In addition, the TRIPS Agreement clarifies that copyright protection extends to databases. 23 This is not because databases have creative value, but rather because they have financial value. If these databases clearly met the standard requirements for copyright protection, there would be no need to specifically state in TRIPS that databases should be protected by copyright. They may not be sufficiently original and creative, but the copyright protection offers an economic incentive to compile databases. Though there were not many substantive changes to copyright under the TRIPS Agreement, the inclusion of databases and the exclusion of moral rights are illustrations of a willingness to expand the economic aspects of copyright while excluding the dignitary aspects.

The inclusion of geographical indications in the TRIPS Agreement was a significant addition because before the TRIPS Agreement, geographic source indicators had not achieved international acceptance. Prior agreements that protected appellations of origin, such as the Lisbon Agreement for the Protection of Appellations of Origin and Their International Registration (Lisbon Agreement), had relatively few parties. 24 Appellations of origin can be described as the predecessor to geographical indications, but the Lisbon Agreement has only thirty-one signatories as of 2021 and had even fewer when TRIPS came into effect in 1995.25

The emergence of Decolonial theory can be traced back to its seminal publication, Aníbal Quijano’s Citation(1991) 2010 essay, “Coloniality and Modernity/Rationality.” As a theoretical movement, Decolonial theory was constituted by a group of South American diasporic thinkers located within elite North American Universities. Originally, Decolonial theory addressed a colonial or racialised global political economy from within “world systems theory, development and underdevelopment theory and the Frankfurt school critical theory tradition” (Bhambra Citation2014, 115). In the last thirty years, the concerns articulated by the “Latin American Subaltern studies” group, which are rooted in the conceptual relationship between coloniality/modernity and rationality, have become transnational. As Decolonial theory has travelled, its focus as a global theoretical movement has been transformed. Prominent scholars such as Sabelo Ndlovu-Gatsheni, Walter Mignolo, Catherine Walsh and Ramón Grosfoguel have refashioned Decolonial theory as primarily an epistemological form of criticism (Hull Citation2021, 67). What is distinctive about contemporary decolonial criticism is the proposal that colonisation should be reconceptualised as primarily epistemic violence, and that epistemic violence is equivalent to the institutional dominance of Western secular knowledge over other epistemologies, which Decolonial theory has falsely conceptualised as cosmological modes of knowing and being. The latter are then disqualified as folklore, witchcraft and mysticism. The core of this argument is that the secular modern West has presented itself as the only epistemic tradition capable of attaining truth or objective/universal knowledge. Decolonial theorists argue that all Western knowledge is reducible to the ego conquiro, which signifies the certainty of the European in his role as conqueror over the colonised. In this framework, Western secular knowledge is defined by a singular conspiratorial will or intention to dominate all other forms of being by excluding them from contributing to or being part of, hegemonic discourses on humans. Reconfiguring colonialism as an epistemological problem has enabled Decolonial theory to differentiate itself and claim superiority over political economy (Marxism) and postcolonialism – paradigms to which its scholars were, at one point, beholden (Grosfoguel Citation2011). The consequences of this shift are two-fold. First, decolonial thinkers located within the Humanities and the Social Sciences claim that Universities are colonial institutions, necessitating a call for the decolonialisation of institutional structures and curriculum. Second, Decolonial theory claims that the coloniality of modern Western epistemology embodied in the curriculum is both 1) a symptom of our inability to solve the contemporary crises and 2) the cause of our civilisational crises. This controversial notion, articulated in the work of the most ambitious and influential decolonial thinker in Sub-Saharan Africa, Sabelo Ndlovu-Gatsheni, goes as far as to argue that: The current environmental/ecological crises rocking the modern world are another indicator of the epistemic crisis as well as the systemic crises that remind us of the catastrophic failures and vulnerabilities of the modern world system that has been caught off guard. What the world is facing is a broad “civilizational crisis” which loudly proclaims that modernity has produced many modern problems for which it has no modern solutions. Consequently, it would be naïve for peoples of the Global South in general, and Africa in particular, to continue looking to Europe and North America for usable knowledge, relevant ideas, critical theories and solutions to modern problems. (Ndlovu-Gatsheni Citation2018, 38)

Blaming the modern “West” for being solely responsible for planetary crises that illumine the mortality and immorality of our species is, of course, not novel. I am not suggesting the crises mentioned above and elaborated upon by Ndlovu-Gatsheni are illusory. On the contrary, I argue that the ecological, economic, gender-based violence and racial crises of our time are factually indisputable, but Decolonial theory’s anti-Western theoretical reductionism is inadequate for addressing the problems faced by the contemporary precariat. Today, in the age of the Anthropocene, precarity is no longer reducible to racial inequality or the effects of “coloniality.” Reconceptualised as a geological force or biomass, Achille Mbembe (Citation2017) has argued, the human species exceeds the demand and capacity of the labour market, engendering surplus populations that have begun to replicate the precarity and object-like character of the racialised slaves and colonised in early modernity. However, the matter is not as straightforward as the binaries of class and race struggles that defined modes of resistance against exploitation and oppression until the mid-twentieth century. The tragedy of our times is that the global precariat signifies an abandoned excess, superfluous subalterns who are not required for capital to function (Mbembe Citation2017, 9). More importantly, Mbembe argues the human population as a geological force has the capacity to not only alter but destroy the ecological conditions (or eco-systems) on planet earth that make human habitation possible. In the context of an emergent and all-encompassing planetary extinction, the precarity once reserved for the enslaved and colonised black subject becomes a global condition (Mbembe Citation2017, 1–9; Reyes and Chirindo Citation2020, 7–8).

Through the course of this research project, we approached decertification as an experimental and reflexive law reform process—that also involved others. 11 Developing decertification as an experimental prefigurative law reform practice is the fourth use to which decertification was put. Legal and governmental simulations can take different forms. Young people’s parliaments and model United Nations, for instance, are intended to get children and youths roleplaying core political institutions to understand how they work. Similar processes occur in mainstream legal education when law students are asked to act as judges, writing judgments for legal cases. Learning is invariably part of any roleplay but drawing on prior examples of critical institutional play (such as feminist judgment writing), our aim was to simulate law with a difference. This difference had several aspects. One aspect, discussed further by Cooper (2023b), involved experimenting with legislative form to capture the limits, possibilities, and challenges of writing speculative law. In other words, could a legislative text on decertification be crafted that did not simply mimic the formalistic ambition and confidence of a conventional English statute, but was instead self-reflexive and polyphonic? A second aspect was to produce a law reform proposal outside the bounds of current political debate (even as it might capture the broad societal direction of travel). Decertification might be considered politically outlandish. We wanted to give it careful thought; to treat it as a legitimate proposal, worth paying attention to.

In her Afterword, Davies (2023) reflects on the plural temporalities that decertification invokes. Treating a contentious legal proposal associated with the future as if it was a currently viable reform is an exercise in prefigurative institutional experimentation. Prefiguration is a helpful framework for thinking about initiatives that anticipate and embody hoped-for future possibilities (see Monticelli 2022), by enacting changes that are sought (Yates 2015; Mensink 2020; see also Carroll et al. 2019). Such a move refuses the conventional political division between means and ends (Van de Sande 2013; Swain 2019). Against the notion that bad means can be justified if they secure good ends, prefiguration treats the means as part of the ends and, also, as anticipating them—since how politics is conducted shapes the society it gives rise to. Prefiguration also treats desired ends as operationalisable and as doing stuff. Rather than await a better society in the future or rely on campaigning and political pressure to induce more powerful forces to secure it, prefigurative politics embodies hoped-for changes in the now. Prefiguration has become a popular and influential framework within anarchist and social movement circles. However, the critical orientation that many social movement activists and anarchists adopt towards state and law means prefiguration’s terms have been little utilised in relation to them. Yet, state and law can be sites of prefigurative practice, where hopeful practices (such as British local government’s 1980s introduction of nuclear free zones) exceed what can be realised (Cooper 2020). Prefiguration may be carried out, officially, by state bodies. It can also be undertaken by actors, informally, within or in relation to state apparatuses.

The question of the ultimate or intrinsic good can also be asked as follows: Why should the world exist? What is the positive thing or characteristic about the world or objective existence that ultimately makes the world something whose persistence we want? This is a framing that has a ring of pertinence in this era of intensifying and cascading existential risk. Whilst prominent x-risk discourse has explicitly only avowed a utilitarian answer to this question (that is, when not pleading agnosticism), that isn’t always how it approaches the issue. Tellingly, when MacAskill in What We Owe the Future and Ord in The Precipice aren’t making a rigorous philosophical case (or arguing that we should wait a few centuries before doing more philosophy), but more rhetorically attempt to arouse in their readers a proper passion for the continuation of our future or sync with some deeply felt chord of truth within our psyches, their framings often take a spontaneously non-utilitarian form.

MacAskill (2022) for example, writes in the chapter 'Extinction':

Thus, the template for substituting a traditionalist narrative with predetermined conclusions for academic historical research has been set. Such histories are a common tool used by nationalist leaders to consolidate societies around their political agendas. But using them as a guide in domestic and foreign policy is bound to spell disaster.

Conclusion