jurisprudence is a compulsory subject for law students in most South African universities. the discipline usually takes to involve the study of two key sets of questions and their relationships: what are the nature and distinct features of law as a discipline?; what should the law be? what is the c...
Chapter 1
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Jurisprudence in an African context: An
introduction
DAVID BILCHITZ, ORITSEGBUBEMI OYOWE AND THADDEUS METZ
1 Why Jurisprudence?
.1
Jurisprudence in an African context
1
.2 What is African philosophy?
1 Theories of law and theories of justice
.3
1
.4
1.1 Why Jurisprudence?
Jurisprudence is a compulsory subject for law students in most South African universities. The discipline
is usually taken to involve the study of two key sets of questions and their relationships:
1. What is the nature and distinctive features of law as a discipline?
2. What should the law be? What is the content and meaning of justice? What is its relationship with law?
Copyright 2017. Oxford University Press Southern Africa.
These questions involve taking a step back from the concrete rules of law to ask philosophical questions
about the very characteristics of the discipline itself. The questions have universal relevance, yet the
focus of most Jurisprudence textbooks has been on the answers provided by theory developed in Europe
and North America. When African states became independent in the late 1950s and 1960s, a number of
debates surfaced about decolonising the curriculum and knowledge systems in African universities.
Those debates often involved attempting to integrate and develop curricula that reflected the thought that
has emerged from Africa on deep philosophical questions. Many of these debates have been resuscitated
recently within South African universities, where students have strongly pressed for the decolonisation
of the curriculum. These external pressures are to be welcomed, as they encourage serious reflection on
the place of a course like Jurisprudence in the legal curriculum, as well as the content and manner in
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, which it is taught. Does Jurisprudence then deserve to remain a core part of the curriculum, and, if so,
how do our justifications in that regard affect the content of the course and our pedagogical approach?
In making the case for Jurisprudence, it is useful to canvass a number of the objections teachers of
Jurisprudence are privy to when they engage students concerning the subject.1 First, some charge that the
subject has no practical benefit for those who wish to be practitioners, who constitute the vast majority of
the students. Second, others contend that it is too abstract and conceptual and removed from day-to-day
policy issues and concerns of the law. Finally, others claim – in light of the recent impetus discussed
above to reflect on the content of curricula – that Jurisprudence has often required students to become
familiar with the currents of thought in Europe and North America concerning its central questions,
without considering the contributions to thought in this arena by African philosophers and jurists. The
theories from the ‘Global North’ have also been taught often without considering their applicability and
implications for the African context. What then can be said in response to these criticisms, and what are
the implications of these answers for how it should be taught?
In our view, the very charges against Jurisprudence, as a subject, provide some cogent arguments for
its retention as a compulsory and important component of the LLB degree. The ‘lack of practical benefit’
charge can be challenged on several counts. First, it may be denied that Jurisprudence lacks all practical
benefit. In fact, studying theories of adjudication, for instance, may well be of importance to a
practitioner in seeking to develop a successful approach to cases that arise. It may also help practitioners
to predict the potential outcome of cases, and thus assist them in advising clients.
Another response, however, challenges the assumption that only those subjects should be taught that
have usefulness in some practical sense. Sadly, given funding limitations, many African universities
have, out of necessity, often been faced with making very pragmatic decisions concerning what can be
studied, and practical utility often has won out. Nevertheless, this focus can lead to an
instrumentalisation of knowledge, whereby the development of human understanding becomes purely
contingent upon practical outcomes. Our society becomes one so focused on the practical that there is no
outlet for intellectual curiosity, no space to step back and consider the deeper questions of existence,
ultimately impoverishing us all as we become simply units in a productive machine.
The second ‘abstract’ charge against the subject suggests a disjunction between theory and practice,
the abstract and the concrete, that is simply, we would argue, not true of the law. Practical questions
often require one to have reference to considerations that are more abstract. Without understanding the
theoretical positions that are available, practical decisions may be taken that cannot adequately be
justified. Moreover, such decisions may well be ultimately based on a background theory that even the
decision-maker regards as unacceptable, if the assumptions underlying the decision remain unexpressed.
Thus, in deciding whether to enforce a restraint of trade clause, or whether a person who is drunk can
have criminal capacity, the court inevitably must engage a range of theoretical issues that enable it to
arrive at a conclusion on these practical matters. Through making these theoretical matters explicit and
drawing our students’ attention to them, Jurisprudence can enable lawyers to have a level of theoretical
sophistication that may indeed broaden and deepen their approach to more concrete issues. We here
indicate that Jurisprudence may be taken not simply to be the overarching study of the two main
questions mentioned above. It involves also deeper philosophical reflection about what concrete laws
should contain and thus is a necessity when engaging with any branch of the law. Indeed, this point is
illustrated by extracts we have chosen in this book from practising judges who, themselves, display the
need to reflect on these questions in a theoretically complex manner.
Concrete implications may thus flow from a deeper theoretical consideration of legal doctrine or
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, political philosophy. What then about such abstract questions as the connection between law and
morality? In fact, one’s approach towards a particular case may well also be connected with one’s
self-awareness as to the particular jurisprudential theory one adopts. If a matter falls for a Hartian
positivist within the core meaning of a statute, then the outcome will be determined by the ‘plain
meaning’ of the law; if it is in the penumbra, the decision may be reached through the exercise of a
discretion by the judge (see Chapter 4 for this discussion). If law and morality are separable, one may be
compelled as a judge, for instance, to make decisions that are legal but not just or possibly the converse.
If law and morality are intimately connected on the other hand, one may be duty bound to find a
construction of the law consistent with morality. Even in connection with such an abstruse matter as this,
then, concrete consequences may follow.
The ‘seemingly’ abstract and conceptual nature of Jurisprudence may also assist and enhance the
critical skills that students require for the law. Reading and understanding philosophical texts require
close attention to the argumentation of the philosophers, and compel students to work out how to extract
difficult arguments from the text. The complexity of the arguments often requires students to develop
their logical skills, and the critical engagement with the material requires students to spot errors in
reasoning. The very difficulty of Jurisprudence provides much of its value to the student: stretching
students to expand their reading and critical skills that are of such great importance in the law.
Universities should not be afraid to stretch students intellectually, so as to gain the skills necessary to
confront difficult arguments and texts.
Different teaching methods will develop these skills to a greater or lesser extent. It has become
common practice, in several universities, as a result of the difficulty of philosophical writing, to teach
Jurisprudence virtually wholly through secondary texts. In our view, one of the central benefits of
Jurisprudence as a subject, is to enable students to read and re-construct the arguments of the
philosophers for themselves. The reading and critical skills developed by the students in this process is
of use to them in developing the analytical rigour required to deal with difficult areas of the law. Access
to original texts thus is empowering. It enables students to interpret these texts themselves and to come
up with their own insights in relation to this work. Lectures and secondary material can then help
students determine whether or not they have an adequate grasp of the material, but, in themselves, they
do not enable the student to have unmediated access to these arguments. Moreover, particularly in the
African context, students have often never had much exposure directly to the thought of African
thinkers. It is thus of specific importance in this context to provide students with direct access to the
thought of prominent African philosophers and judges.
In light of our views in this regard, this book attempts to select segments of the primary material from
influential texts on the key questions of Jurisprudence outlined above. These provide an invitation to
students to engage directly with the primary texts and attempt to re-construct the arguments of the
philosophers therein. A series of questions follows the text, which can help guide the students in this
process, and should be able to be answered through engagement with the text itself or at least
independent thought about it. After each text, there is an exposition of the key arguments therein, a
linkage with other theories and themes in Jurisprudence, as well as some critical discussion. To assist in
the development of critical skills, students should attempt first to work out what the text means and the
key arguments therein. Our engagement thereafter can be a means of checking whether the core
arguments have been extracted. A process of critical reflection on these texts is also encouraged. To
assist in the latter process, at the end of the chapter, we have placed a number of questions designed to
stimulate critical reflection by the students on the material covered in each chapter.
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, 1.2 Jurisprudence in an African context
Beyond the desirability of having students read primary texts, the third objection outlined above
concerning the ‘Global North’2 orientation of existing Jurisprudence courses also provided the impetus
for a new textbook on Jurisprudence. As we have mentioned, universities across South Africa have been
faced recently with a strong charge to decolonise the curriculum. As we understand it, this notion
requires academics to address the fact that there has been a historic privileging of ‘Global North’
knowledge and worldviews with a concomitant under-valuation and marginalisation of thought from
Africa (and the Global South more generally). In particular, we focus on two specific problems which
are of relevance to the discipline of Jurisprudence.
First, the Global North is often thought of as being the source and creator of theory whilst countries in
the South simply apply what has been developed in the North to their contexts. Bonilla explicates this
idea in the legal context as follows:
[w]hile legal academia from the North is seen as creating original academic products,
legal academia from the South is considered solely a weak reproduction of the
knowledge generated in the North – a form of diffusion or local application of the
same.3
The colonial context in South Africa exacerbated these dynamics where local ways of interpreting the
world were not respected and replaced by colonial modalities of thought. This has led some theorists
such as Catherine Odora Hoppers to speak of ‘the manner in which colonialism engaged in “cultural
violence”4 and “symbolic castration”.’
The second problem relates to the fact that authors in the Global North often make claims about the
global validity of their theories, but fail to reflect on the manner in which their theories might be
particular to the North.5 As Parvati Raghuram and Clare Madge write, ‘the often unstated claim to
universality is one of the key problems of how many northern academics currently theorize’. 6 Southern
theorists do not have this luxury and usually circumscribe their claims to a particular location; thus,
instead of theorists in Africa doing ‘philosophy’, they instead are seen as merely doing ‘African
philosophy’.
The identification of these problems cannot automatically achieve a resolution thereof but suggests
lines of approach to address them. In relation to the first problem, the wiping out of certain indigenous
cultures and their erasure, in many cases, is an historic injustice which remains difficult to correct. The
fact that much of the knowledge in these systems was transmitted orally renders it even more difficult to
retrieve. Nevertheless, whilst a complete recovery of what was lost is not possible, there is clearly an
importance to engage with theorists and theories that have emerged from the Global South and their
contributions to knowledge. Since our focus is on the African context, we attempt in this book to provide
students with some of the key thinking that has emerged from this continent on the key questions of the
discipline of Jurisprudence, namely, what is law and what is justice. In doing so, it is hoped that these
African texts gain a wider readership and more influence on the legal communities on the continent and
beyond.
In addressing the first problem, there are two approaches that could be adopted. The ‘exclusive’
approach would suggest that, in light of the historical devaluation of African knowledge systems, our
courses should focus exclusively on modes of thought that emanate from Africa. Only such a radical
shift would correct the imbalances that have taken place in the past. Such an approach in our view is
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