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The compatibility of general jurisprudence and legal positivism $14.73   Add to cart
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The compatibility of general jurisprudence and legal positivism
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  • Course
  • Jurisprudence (LAWS3042A)
  • Institution
  • University Of The Witwatersrand (wits)

Scholars such as J.M. Modiri argue that traditional legal education is flawed because it perpetuates the belief in the existence of one self-evident, purely legal "right answer" and encourages students to "think like a lawyer." Modiri is a proponent of critical legal education, which encourages stu...

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Document information

  • July 10, 2023
  • 7
  • 2022/2023
  • Essay
  • Unknown
  • A

Subjects

  • legal positivism

Written for

  • University of the Witwatersrand (wits)
  • Jurisprudence (LAWS3042A)
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2455766 April 2023


The compatibility of general jurisprudence and legal positivism

1. Introduction

Scholars such as J.M. Modiri argue that traditional legal education is flawed because it

perpetuates the belief in the existence of one self-evident, purely legal "right answer" and

encourages students to "think like a lawyer." Modiri is a proponent of critical legal

education, which encourages students to view the law from a variety of perspectives and

engage in critical analysis. This essay will explain the distinction between traditional legal

education and critical legal education, leading to a discussion of how the general or critical

jurisprudential approach relates to critical legal education and challenge prevailing

assumptions and perspectives within the legal system. Additionally, utilising the facts

presented throughout the essay, the debate over whether general jurisprudence is

compatible with legal positivism, which is associated with traditional legal education, will

be critically discussed.



2. Body

2.1. The relationship and distinction between traditional and critical legal education

According to Modiri, traditional legal education encourages students to adopt a logical,

objective, and legalistic approach to problem-solving1. It further promotes the learning of

legal concepts, norms, and principles while putting a strong emphasis on the improvement

of legal analysis and reasoning abilities.2 The primary goal of a traditional legal education

is to equip students with the fundamental knowledge and abilities needed to practice law.

Students are also taught to concentrate solely on the legal rights, obligations, duties, and

entitlements related to a particular set of facts, leading to a single, unquestionable ‘right


1
JM Modiri ‘The time and space of critical legal pedagogy’ (2016) 27(3) Stellenbosch Law Review 507, 512.
2
Ibid.

, 2455766 April 2023


answer’.3 This approach, however, does not fully develop the complete range of abilities

students will need as lawyers and can lead to a narrow and limited knowledge of the law.

It also fails to take into consideration the social and political settings in which law

functions.4




According to Modiri, one of the main objectives of critical legal education is to challenge

the traditional legal education's concentration on judicial norms, doctrines, and principles.5

Unlike the traditional approach, a critical legal education recognises that law is not a self-

contained system of rules but is shaped by power relations, social norms, and social

ideologies. Critical legal education aims to promote a more holistic and contextual

understanding of the law, one that takes into account the social and political context in

which law is made, applied, and enforced. It challenges the predominate beliefs and

viewpoints inside the legal system and encourages students to think critically and

creatively about issues.6 In order to achieve social justice and equality, it encourages

students to critically analyse, assess, and criticise the ways in which the law upholds and

reinforces existing power systems.7




Overall, a traditional legal education and a critical legal education in jurisprudence are two

distinct approaches to legal education. While both approaches seek to provide students

with a solid understanding of the law and legal practice, the primary distinction between

the two is the emphasis they place on technical skills versus critical analysis and social



3
Ibid 512.
4
Ibid 513.
5
Ibid 512.
6
Ibid 509.
7
Ibid 510.

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