LJU4801 - Legal Philosophy_ PORTFOLIO ASSIGNMENT 03_ 2021.

LJU4801 - Legal Philosophy_ ASSIGNMENT 03_ 2021. Critical Legal Studies (CLS) Critical analysis CLS and the philosophy that underscores De Vos article have all the hallmarks of critical theory.13 They are both skeptical of conventional ideas and ideologies, instead both prefer to challenge and expose false assumptions which entrench a false consciousness view. They also share a view of value contradictions which define power relations in society and shape interpretation of law. They also share an interdisciplinary 8 De Vos The past 2012 SAJ 73 - 103 9 De Vos The past 2012 SAJ 73 - 103 10De Vos The past 2012 SAJ 73 – 103 11 De Vos The past 2012 SAJ 73 – 103 12 De Vos The past 2012 SAJ 73 – 103 approach. However, CLS and De Vos underlying philosophy differ in how they redress the issues of racism, racial discrimination and the rights approach. CLS does not want to dwell on issues of race and racism, but rather prefers to focus on broad scope of marginalization and oppression. CLS also reject the right approach as a means to curb inequality and racism in the mainstream society, for the reasons that rights approach would only strengthen the position of the already privileged group. To gloss over issues of racism and racial discrimination, De Vos contends, would be same as denying the history of racial prejudices and its persistent consequences, but rather than dwell on it, as De Vos concurs that would entrench racial divisions, De Vos agrees with CLS that it would be more effective to re-configurate issues of racism with other factors that would ultimately reflect a more equitable and democratic system. On the issue of rights approach, De Vos argues that failure to curb historical consequences of a society divided by racial inequalities and dispute, through deliberate and systematic remedial race redress programs, would simply freeze fundamental racial hierarchy within the structure of society. However, De Vos recognizes these measures as contingency. De Vos also prefers a story telling approach where individuals shares their personal experiences and race and racial discrimination, instead of the trashing approach supported by CLS. 2.2 Critical Race Theory (CRT) Critical analysis CRT and De Vos philosophy in this article accord more with one another than any discord between them in all the four elements of philosophical discourse. 14 Both are skeptical about the prevailing ideas and ideology used to entrench racism and racial discrimination in law and society. They believe in race consciousness. They do not shy away from the issues of racism and rights to redress the persistent consequences of racial discrimination. They both assert the need to challenge underlying ideology of white supremacy and its privileged status. However, while CRT contend that race 13 Kroeze IJ Legal Philosophy LJU4801 (UNISA Pretoria 2017) 171 - 241 14 Kroeze Philosophy 171 - 241 consciousness should play critical role in every discourse of law or legal issues, De Vos position is that race should play critical role in law only to the extent necessary to heal consequences of past racism and persistent racial prejudice, other than that race consciousness may entrench just another new form of racial hegemony. May be the context of their philosophical views has influenced their conclusions, CRT is based in American society where majority are whites, while De Vos is writing in the context of South African society where the blacks constitute majority. The point is that the minority blacks in America have to maintain race consciousness to avoid marginalization, while minority whites in South Africa must ultimately do away with race consciousness in order to put an end to racism and racial discrimination. 2.3 Critical gender theory (CGT) Critical analysis CGT and the philosophy employed by De Vos are essentially the same in their understanding of the influence of ideas and ideology, the role of power in law and society and how power imbalances color the interpretation of law and they both share an interdisciplinary and intersectional approach. 15 The only distinction is that CGT challenges the dominance of patriarchy, while De Vos is focused on racism and racial discrimination, but ultimately both are concerned with any form of oppression or marginalization resulting in their intersectional approach. 2.4 African Legal philosophy (ALP) For ALP, religion, law, and custom are part and parcel of the same complex whole, meaning that they in essence define and shape each other. They are viewed with sacred holiness and associated with high powers.16 15 Kroeze Philosophy 141 – 241 16 Kroeze Philosophy 141 – 241 ALP is characterized by a communitarian view.17 This means that community interests are superior to individual interests. This means individual values may be fulfilled as long as they are not in conflict with the broader communal vales. In a community defined by communitarian view individuals’ status in society is defined in the family context before they are even born. ALP is also characterized by the notion of ubuntu.18 The courts defined ubuntu as the very essence of being a person, humanism, and morality. It has underlying values including group cohesion, empathy, respect, among others. In essence, ubuntu depicts humanism and morality in the context of the community.