LJU4801 Portfolio Assignment 3

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. Modiri notes that racism can exist long after the abolishment of the laws.7 Based on these general principles, he argues that a South African CRT must rest on three points, namely, critique of laws and institutions that perpetuate racism; analyses of unequal distribution of wealth and poverty; and engagement with race in the wider social and political life. CRT must look at the way in which black people experience rights differently from whites and why CRT in South Africa must not only be anti-racist but also anti-capitalist.8 Modiri identifies what he calls racial themes in a post-apartheid state, race-consciousness as used in the American CRT, but with emphasis on the South African context; conceptual fidelity which studies racism and white supremacy as a systematic phenomenon; the Constitution as achieving formal equality but resulting in mere formal decolonis