QUESTION 1
In this article, Modiri states that he draws on Critical Race Theory (CRT), settlercolonial studies and African jurisprudence.
1This in order to provide critical inquiry into
the limitations and failures of ‘post’-apartheid constitutional democracy, to how the
origins, spirit and...
.
QUESTION 1
In this article, Modiri states that he draws on Critical Race Theory (CRT), settler-
colonial studies and African jurisprudence.1This in order to provide critical inquiry into
the limitations and failures of ‘post’-apartheid constitutional democracy, to how the
origins, spirit and content of the constitution are based on faulty political, conceptual
and ideology that prevents a decolonised and liberated future2
The basis of all critical theory is the questioning of prevailing ideas. 3 Modiri employ
conquest (especially economic power by Whites) as a framework and basis to argue
that a jurisprudence emanating from experiences of the historically colonised Black,
and intellectual heritages of African philosophy and black radical thought would pose
different questions and enact a different orientation towards South African law and
constitutionalism, than is presently the case.4
Modiri CRT developed from Critical Law Studies (CLS) and looks at the position of
different races in society and how societal structures and patterns impact on their
equality.5 The Article identifies the problem of reconstituting a new polity and a new
law in South Africa.6 Informed by “settler-colonial studies”, Modiri adopts CRT “in order
to contemplate jurisprudence outside of liberal constitutionalism”.7 This theory is seen
as a search for an alternative jurisprudence against the more conservative positivist
legal thinking in South Africa.8
He uses CRT as a means of activism to change the social and legal system, to
advocate for a system beyond the courts to address social inequalities.9 However
given the limitations of the law, reliance should not only be exclusively on the rights
but other tactic to bring about participatory democracy.10
1
Modiri JM “Conquest and constitutionalism: first thoughts on an alternative jurisprudence” 2018 South
African Journal on Human Rights 34 303.
2
Modiri 2018 SAJHR 303.
3
Kroeze IJ Legal philosophy: Only study guide for LJU4801 (Unisa Press Pretoria 2017) 175.
4
Modiri 2018 SAJHR 324.
5
Kroeze Legal philosophy 183.
6
Modiri 2018 SAJHR 304.
7
Modiri 2018 SAJHR 306.
8
Modiri 2018 SAJHR 306.
9
Kroeze Legal philosophy 213.
10
Modiri 2018 SAJHR 323.
2
,QUESTION 2
Modiri states that he draws on Critical Race Theory (CRT) and African jurisprudence
or African philosophy (ALP).11 However, the approach in the Article is not valid for ALP
since it does not talk to any of the themes in ALP, be it Communitarianism,
Reconciliation nor Ubuntu, neither as a comparison to the current philosophy nor an
alternative. The Article lambasts the outcome of the Truth and Reconciliation
Commission (TRC), whose purpose, was to reconcile South Africans, that the TRC,
ended-up with “undisturbed sense of white privilege”. Informed by historical analysis,
the Article primarily talks to the failure of the Constitution, but does not directly address
itself to the requirements of CRT approach which are characterised.12
On the Sceptical approach, the Article talks to the South Africa’s history of colonial
conquest and the persistence of White privilege under the Constitutional era.13 What
the Article misses is the way in which “legal thinking shapes our ideas about race”.14
Role of power: the CRT view is that the issue of race must be made clear in legal
analysis.15 The Article points to the effects of powers and systems of white supremacy
which go beyond the legal and political domains.16 It does not talk to how the
Constitution or the judiciary perpetuate this.
Interdisciplinarity: CRT uses story-telling method and personal style, promotes
interdisciplinary and that courts need to be sensitive to “multiple forms of
discrimination”.17 The Article clearly combines a historical, political and legal
philosophy to critique the Constitution.18 Interpretive turn: CRT scholars also argue
that the idea that race is not an issue in law does not make sense from the perspective
of past discrimination that also has consequences in the present.19 Again the Article
does not talk to how the Constitution or the judiciary perpetuate this.
Some critics have argued that this approach leads to “identity politics” where it is not
as important what someone is saying but who is saying it.
I agree with the author in the analysis he makes. However, I disagree that the Article
follows Critical Race Theory (CRT) but that it predominantly fulfils the elements of
Critical Legal Studies (CSL) and is therefore more aligned to CSL. Critical Legal
Studies starting point is that society is characterised by alienation, hierarchies,
violence and arbitrary exercises of power for which no legal justification can be found.
We now looking at Modiri’s approach in comparison with the CLS characteristics.
Skeptical approach: Crits through the sceptical idea of false consciousness points
out that we have political and legal ideologies at work that construct a certain way of
thinking about life and about society which leads to the common belief that things are
the way they are because they have to be that way.20 Modiri is of a view that there is
no rationality and neutrality of the Constitution. This is false consciousness also since
the constitutional transformation did not change where it really matters most, as
economic power, land and property ownership and labour exploitation were all left
untouched in the new constitutional dispensation.21
The Article argues that constitution must be implicated in the continuation of colonial-
apartheid power relations since it has left white supremacy and coloniality largely
undisturbed.22 These contradictions, are highlighted through “trashing”.23 Black people
remain largely in the former Homelands and townships and their participation in the
economy has largely remained as labourer. Economic and cultural power still wielded
by the historical beneficiaries of colonialism and apartheid and so the idea of a new
South Africa is false consciousness.24
By using deconstruction, the Article argues that in making settler-colonialism illegible,
as a historical problem, what it also refers to as ‘colonial unknowing’ (not dwelling in
the past), is not assisting in reversing the colonial order and it normalises white
supremacy and make substantive decolonisation appear ‘unreasonable and
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