LJU4801: PORTFOLIO SUBMISSION- MAY/JUNE 2020 EXAMS: #38395878
1 The philosophical approach advocated by Modiri
Modiri is advocating the Critical Race Theory (CRT) whose seven elements
are indicated below. CRT argues that racism is inherent rather than
exceptional to basic societal values. It denies that progress is merit-based,
neutral, objective and colour-blind. It argues for a historical and contextual
understanding of law, more especially in relation to Blacks. Social
institutions and their legitimacy are questioned. Black experiences and
consciousness in law making are canvassed. CRT advocates for the
liberation of Black people.1 Modiri confesses his application of CRT, settler-
colonial studies and African jurisprudence. He presents the article as a
critical examination of historical unfoldment of European colonial conquest,
which resulted in White supremacy of constitutional transition, and in a
negotiated settlement in S.A1
Modiri laments the absence of transformation and historical justice for
Blacks in South Africa (S.A). He says it is important for him to repudiate the
prohibitive intellectual and political conventions embedded in the S.A.
constitution which view it as universal, immutable, faultless and impervious
to critique and revision.2 He complains that post-apartheid White supremacy
and colonialism in S.A remain largely undisturbed. He says the constitution
only serves to protect White interest. He agrees with and quotes writers that
believe that the constitution has brainwashed and numbed Blacks into a
state of political oblivion which they call “colonial unknowing”.2 He criticises
Western values in the constitution, states the Constitution is ineffective as
it provides no restitution against historical struggles.2 He points to White
supremacy, Black poverty, inequality and stifling of political contestation.
Basically all the seven elements of CRT are flagged in his article.
1.
Modiri JM "Conquest and constitutionalism: First thoughts on an alternative
jurisprudence" 2018 SAJHR 300-325.
2.
Kroeze IJ Legal philosophy: Only study guide for LJU4801 (UNISA Pretoria 2017) 203-
205.
1
,LJU4801: PORTFOLIO SUBMISSION- MAY/JUNE 2020 EXAMS: #38395878
2 Briefly explain whether Modiri’s approach is valid
Critical Race Theory (CRT) has its origins in various political movements going
back to the anti-slavery movement, the civil rights movement and the liberation
movements in Africa.3 It is a theory with many different focuses and aspects.
Although the history goes back many years CRT as a theory developed in two
distinct streams(USA and S.A) that obviously share some similarities. 3 The S.A
stream is uniquely African and tied to the idea of Black Consciousness and post-
colonial intersectional studies.3
IN S.A. CRT comes from Critical Race Feminism. Literature quotes that Modiri has
attempted to lay the foundations for CRT in post-Apartheid S.A. He bases his ideas
on centrality of racism in S.A which he says is not only found with right-wing
extremists, but is also in the legal system.3 He argues that racism still and suggests
that South African CRT must rest on three points, namely (a) critique of laws and
institutions that perpetuate racism; (b) analyses of unequal distribution of wealth
and poverty; and (c) engagement with race in the wider social and political life
where black rights are experienced differently.3 He suggests that CRT in South
Africa must not only be anti-racist but must also be anti-capitalist.3
Recently the apex court and SCA in S.A, articulate that the rights to life and dignity
take precedence over individual right to freedom of expression. In the USA, for
example, the right of freedom of expression takes precedence in their law. The S.A
position on racism and defamation is thus in sharp contrast to that of the USA. If
someone makes a racist comment on Facebook, Twitter or any other social media
platform, S.A courts have not hesitated to impose punishment.4 The reality of what
happened to Penny Sparrow and Adam Catzavelos provide evidence to this
articulation. While Modiri’s approach is valid, I dare say it will be difficult for him to
find racism in legislation as well as in the interpretation of law by the courts. My
statement does not refer to other S.A. social institutions in S.A. Modiri says race,
like gender is socially constructed. 5 Modiri's approach fits very well into the ways
in which critical theory generally works.6_______________________________
3
Modiri 2018 SAJHR 203-215.
4
Khan F “Racism and the law in S.A” https://www.findanattorney.co.za/content_racism-law
(Date of use: 15 May 2020)
5
Modiri 2018 SAJHR 203-215.
6
.Kroeze Legal Philosophy 133
2
, LJU4801: PORTFOLIO SUBMISSION- MAY/JUNE 2020 EXAMS: #38395878
3 My own response to Modiri’s article.
First I must agree with Modiri that South Africa is not yet at a stage where the world can
say the country’s communities are equal. Similarly, one cannot profess a status of zero
racism in South Africa. I must also concede that the numbers of poor people in our country
is still unacceptable. I also admit that South Africa’s Constitution is not immutable, faultless
and impervious to critique and revision, and I say no man-drafted document, targeted
towards human behaviour is immune to possible improvement. The very fact that human
needs, aspirations, and levels of stability change, means that institutions that service
human behaviour must, as a matter of necessity change with time if only to achieve those
objectives. I believe that is for this reason that the Constitutions has seen more than
seventeen amendments since its inception.
He supports Brown who notes that “since alternatives to these narratives have yet to be
imagined, we remain bound to them in their broken and less-than-legitimate-or-
legitimating form”; and I say, criticism that provides no constructive alternatives is baseless
and futile. It reflects a paralysis and scarcity of creative possibilities.
I disagree with the conception that all that is not well in South Africa is to be blamed on
the South African Constitution. The Constitution is responsible for inequality and the
stifling of political opposition in this country as Modiri suggests. It is in fact, the
Constitutions that promotes opposition parties to strive in the post-apartheid era. The
Constitution provides political rights and affords every citizen freedom to make political
choices and this includes the right to form political parties and to participate in the activities
of political parties.6 The assertion that the Constitution. contains prohibitive intellectual and
political conventions in the legal academy and beyond based has no supporting evidence.
While one observes that Modiri’s ideas purport to stand for anti-racism, all that discernible
from his style of writing and choice of expressions is some deep-rooted perilous racism.
An anti-racist activist should want to find commonalties and sameness among people of
different races. One would argue that the wording in his article is angry portrays and
carries heavy racial insults, e.g colonial unknowing, etc. He criticises positive progress like
“emancipation that has given way to accommodation, and reconciliation has displaced
revolution”.7 ________________________________________________________
.6
Constitution of the Republic of South Africa, 1996.
7
Modiri 2018 SAJHR 203-215
3
1 The philosophical approach advocated by Modiri
Modiri is advocating the Critical Race Theory (CRT) whose seven elements
are indicated below. CRT argues that racism is inherent rather than
exceptional to basic societal values. It denies that progress is merit-based,
neutral, objective and colour-blind. It argues for a historical and contextual
understanding of law, more especially in relation to Blacks. Social
institutions and their legitimacy are questioned. Black experiences and
consciousness in law making are canvassed. CRT advocates for the
liberation of Black people.1 Modiri confesses his application of CRT, settler-
colonial studies and African jurisprudence. He presents the article as a
critical examination of historical unfoldment of European colonial conquest,
which resulted in White supremacy of constitutional transition, and in a
negotiated settlement in S.A1
Modiri laments the absence of transformation and historical justice for
Blacks in South Africa (S.A). He says it is important for him to repudiate the
prohibitive intellectual and political conventions embedded in the S.A.
constitution which view it as universal, immutable, faultless and impervious
to critique and revision.2 He complains that post-apartheid White supremacy
and colonialism in S.A remain largely undisturbed. He says the constitution
only serves to protect White interest. He agrees with and quotes writers that
believe that the constitution has brainwashed and numbed Blacks into a
state of political oblivion which they call “colonial unknowing”.2 He criticises
Western values in the constitution, states the Constitution is ineffective as
it provides no restitution against historical struggles.2 He points to White
supremacy, Black poverty, inequality and stifling of political contestation.
Basically all the seven elements of CRT are flagged in his article.
1.
Modiri JM "Conquest and constitutionalism: First thoughts on an alternative
jurisprudence" 2018 SAJHR 300-325.
2.
Kroeze IJ Legal philosophy: Only study guide for LJU4801 (UNISA Pretoria 2017) 203-
205.
1
,LJU4801: PORTFOLIO SUBMISSION- MAY/JUNE 2020 EXAMS: #38395878
2 Briefly explain whether Modiri’s approach is valid
Critical Race Theory (CRT) has its origins in various political movements going
back to the anti-slavery movement, the civil rights movement and the liberation
movements in Africa.3 It is a theory with many different focuses and aspects.
Although the history goes back many years CRT as a theory developed in two
distinct streams(USA and S.A) that obviously share some similarities. 3 The S.A
stream is uniquely African and tied to the idea of Black Consciousness and post-
colonial intersectional studies.3
IN S.A. CRT comes from Critical Race Feminism. Literature quotes that Modiri has
attempted to lay the foundations for CRT in post-Apartheid S.A. He bases his ideas
on centrality of racism in S.A which he says is not only found with right-wing
extremists, but is also in the legal system.3 He argues that racism still and suggests
that South African CRT must rest on three points, namely (a) critique of laws and
institutions that perpetuate racism; (b) analyses of unequal distribution of wealth
and poverty; and (c) engagement with race in the wider social and political life
where black rights are experienced differently.3 He suggests that CRT in South
Africa must not only be anti-racist but must also be anti-capitalist.3
Recently the apex court and SCA in S.A, articulate that the rights to life and dignity
take precedence over individual right to freedom of expression. In the USA, for
example, the right of freedom of expression takes precedence in their law. The S.A
position on racism and defamation is thus in sharp contrast to that of the USA. If
someone makes a racist comment on Facebook, Twitter or any other social media
platform, S.A courts have not hesitated to impose punishment.4 The reality of what
happened to Penny Sparrow and Adam Catzavelos provide evidence to this
articulation. While Modiri’s approach is valid, I dare say it will be difficult for him to
find racism in legislation as well as in the interpretation of law by the courts. My
statement does not refer to other S.A. social institutions in S.A. Modiri says race,
like gender is socially constructed. 5 Modiri's approach fits very well into the ways
in which critical theory generally works.6_______________________________
3
Modiri 2018 SAJHR 203-215.
4
Khan F “Racism and the law in S.A” https://www.findanattorney.co.za/content_racism-law
(Date of use: 15 May 2020)
5
Modiri 2018 SAJHR 203-215.
6
.Kroeze Legal Philosophy 133
2
, LJU4801: PORTFOLIO SUBMISSION- MAY/JUNE 2020 EXAMS: #38395878
3 My own response to Modiri’s article.
First I must agree with Modiri that South Africa is not yet at a stage where the world can
say the country’s communities are equal. Similarly, one cannot profess a status of zero
racism in South Africa. I must also concede that the numbers of poor people in our country
is still unacceptable. I also admit that South Africa’s Constitution is not immutable, faultless
and impervious to critique and revision, and I say no man-drafted document, targeted
towards human behaviour is immune to possible improvement. The very fact that human
needs, aspirations, and levels of stability change, means that institutions that service
human behaviour must, as a matter of necessity change with time if only to achieve those
objectives. I believe that is for this reason that the Constitutions has seen more than
seventeen amendments since its inception.
He supports Brown who notes that “since alternatives to these narratives have yet to be
imagined, we remain bound to them in their broken and less-than-legitimate-or-
legitimating form”; and I say, criticism that provides no constructive alternatives is baseless
and futile. It reflects a paralysis and scarcity of creative possibilities.
I disagree with the conception that all that is not well in South Africa is to be blamed on
the South African Constitution. The Constitution is responsible for inequality and the
stifling of political opposition in this country as Modiri suggests. It is in fact, the
Constitutions that promotes opposition parties to strive in the post-apartheid era. The
Constitution provides political rights and affords every citizen freedom to make political
choices and this includes the right to form political parties and to participate in the activities
of political parties.6 The assertion that the Constitution. contains prohibitive intellectual and
political conventions in the legal academy and beyond based has no supporting evidence.
While one observes that Modiri’s ideas purport to stand for anti-racism, all that discernible
from his style of writing and choice of expressions is some deep-rooted perilous racism.
An anti-racist activist should want to find commonalties and sameness among people of
different races. One would argue that the wording in his article is angry portrays and
carries heavy racial insults, e.g colonial unknowing, etc. He criticises positive progress like
“emancipation that has given way to accommodation, and reconciliation has displaced
revolution”.7 ________________________________________________________
.6
Constitution of the Republic of South Africa, 1996.
7
Modiri 2018 SAJHR 203-215
3
