LEGAL PHILOSOPHY (LJU4801) - FINAL PORTFOLIO

LEGAL PHILOSOPHY (LJU4801) - FINAL PORTFOLIO

ASSIGNMENT 3

QUESTION 1

Critical Race Theory (CRT) is based on approaches; skeptical approach that inculcates

white privilege and prevalence of hierarchy as the dominant form of social organisation;

race consciousness which views law as not being colour-blind; the role of power,

interpretive turn and intersectionality which looks at the role of storytelling and identity

politics which views race as a social construct which is not natural or biological but

something humans create.

Modiri’s approach, fits very well into the ways in which critical theory generally, and CRT

in particular, look at the problem of race. Modiri asserts that there is a false

consciousness that people have escaped the perceived shackles of race, however, the

advent of constitutional democracy in South Africa has left white supremacy and

coloniality largely undisturbed.1

 Constitutional democracy rests on compromised political

foundations and has in the final analysis failed to disrupt the historical dynamics and

afterlives of colonial conquest.

On race consciousness and the role of power Modiri asserts that what has changed is

the physiognomy of white power, which allows a white minority to maintain its

hegemony under the guise of non-racialism,2

 while simultaneously placing Black people

at the nadir of the social hierarchy and binding them into perpetual inferiority and

powerlessness.3

Intersectional approach by Modiri is seen when he avers that there are other problems

of inequality, these are; social powers of race, class, and gender.4

 The general

unravelling of the constitutional ideal has been instigated in large part by the social

1 Modiri JM "Conquest and constitutionalism: First thoughts on an alternative jurisprudence" 2018

SAJHR 300 – 325 300.

2 Modiri 2018 SAJHR 301.

3 Modiri 2018 SAJHR 304.

4 Modiri 2018 SAJHR 318.

.

reality of persistent racial and gender stratification and social exclusion.5

 Modiri avers

that legal rules should not assume that race is biological or that the consequences of

race and racism can be addressed by attending to material conditions of inequality.

QUESTION 2

5 Modiri 2018 SAJHR 306.

CRT started out as part of the CLS movement. CRT fits snuggly into South African

context. CRT is guided by approaches like sceptical approach, role of power,

interpretive turn and intersectional studies. Modiri has attempted to lay the foundations

for CRT in post-Apartheid South Africa.6

 He bases his ideas on two theoretical principles

of CRT, namely, the centrality of racism in South Africa; and that this racism is not

limited to right-wing extremists, but is endemic in the social and legal system. His CRT

approach is valid in the South African context, regardless of the fact that very little has

been done in South Africa regarding CRT.