POST-APARTHEID REFLECTIONS ON CRITIQUE, TRANSFORMATION AND REFUSAL

In this article I engage with the notion of refusal, as introduced by Karin Van Marle, to post-apartheid jurisprudence as a way through which to think of life, death, law and politics against the backdrop of poverty, social misery, disease, oppression and prejudice. She proposes that we consider refusal firstly as a possible mode of critical thinking and theorising but ultimately also as an alternative approach to law and jurisprudence. For Van Marle, what lies at the heart of refusal is the ‘idea of unexpectedness that breaks with the formality and predictability of law’ — an unexpectedness that could disclose new directions for thinking about and doing law

The crises in legal education

This article reflects on recent debates on legal education in South Africa. I argue that the value of legal education should not be indexed by how well it serves the needs and expectations of the legal profession and judiciary, but rather how it contributes to a new jurisprudence suited to the legal, social and political transformation of South Africa. I therefore argue against a reading of the crisis of legal education as one that is instrumental and economical (the inability to produce efficient legal professionals) and focus rather on the jurisprudential crises that lie at the heart of law and jurisprudence, namely the crisis set in motion by the shift from a general jurisprudence, centered on the ideal of justice, to a restricted jurisprudence, focused merely on the coherence of the positive law. I argue that what is needed as a response to this crisis is a critical legal education, or an approach to the study and teaching of law grounded in a critical jurisprudence. The turn to a critical legal education suggested in this article is then further linked to an understanding of law as a humanities discipline and to the humility that this will require of legal academics, lawyers and judges

Introduction to special issue : conquest, constitutionalism and democratic contestations

No abstract available.http://www.tandfonline.com/loi/rjhr202020-06-21hj2019Jurisprudenc

The crises in legal education

This article reflects on recent debates on legal education in South Africa. I argue that the value of legal education should not be indexed by how well it serves the needs and expectations of the legal profession and judiciary, but rather how it contributes to a new jurisprudence suited to the legal, social and political transformation of South Africa. I therefore argue against a reading of the crisis of legal education as one that is instrumental and economical (the inability to produce efficient legal professionals) and focus rather on the jurisprudential crises that lie at the heart of law and jurisprudence, namely the crisis set in motion by the shift from a general jurisprudence, centered on the ideal of justice, to a restricted jurisprudence, focused merely on the coherence of the positive law. I argue that what is needed as a response to this crisis is a critical legal education, or an approach to the study and teaching of law grounded in a critical jurisprudence. The turn to a critical legal education suggested in this article is then further linked to an understanding of law as a humanities discipline and to the humility that this will require of legal academics, lawyers and judges.http://www.ufs.ac.za/ActaAcademicatm201

The time and space of critical legal pedagogy

If the shortcomings, inadequacies and failings (together dubbed the “crisis”1) in legal education could be traced to one central problem, it would be the failure of law teachers and law faculties or schools to adapt to the present-day context - to recognise and respond to the complexity and character of living, knowing and doing in post-1994 South Africa. Following Achille Mbembe, we could say that South African legal education is trapped “at the centre of the knot”.2 To be at the centre of the knot, as I understand Mbembe, is to be disconnected or unmoored from one’s contemporary reality and location; and it arises primarily out of a failure to grasp shifts in the structure and consciousness of a polity and transformations in the legal and political order as “conceptual events” that thereby call for a new imagination: new definitions, new categories, new lines of enquiry, new practices and new mindsets.3 It is to be without a sense of time and space, without an account of the world and society today, lacking in the tools and vision to apprehend the specificity of the present as a construction of particular histories, practices and discourses.An earlier draft of this article was presented first at a seminar on Teaching Law in the Postcolony which was part of the Harvard Law School IGLP Regional Africa Workshop and then later at the UCT Dean’s Conference on Issues of Race and Transformation of Legal Education.http://www.journals.co.za/content/journal/ju_slram2017Jurisprudenc

Transformation, tension and transgression : reflections on the culture and ideology of South African legal education

This article enquires into and joins the critique of the current state of legal education in South Africa against the backdrop of a post-modern, post-colonial and post-apartheid context. In response to current debates on the state of legal education and the quality of the graduates it produces, the author argues that the problem goes beyond the failure to provide corporate law firms with appropriately skilled and qualified graduates but also has implications for substantive democracy, active political citizenship, transformation, freedom, justice, and ethics. Through a survey of select legal education literature in South Africa and abroad, the author identifies the central problem as being the reliance by most South African law teachers on the dominant paradigm of traditional (or black-letter) legal education. Following the writings of Duncan Kennedy and Michel Foucault, this paradigm of traditional education is shown as being not only pedagogically ineffective but also politically corrupt and ideologically conservative. While failing to impart critical thinking skills to law students, it also works to co-opt them into the service of hierarchy and hegemony and functions to discipline them into docility, thereby legitimating the conservative legal culture. As an alternative, the author proposes the turn towards a more critical, engaged approach to legal education, drawing in particular from critical legal studies ("CLS") and from the critical liberatory pedagogy of Paulo Freire and bell hooks. By following a more critical direction, and by enabling students to think critically about law, to question and to transgress, legal education can serve as a practice of freedom. The broad aim of the article then is to put forward a set of ideas contemplating a legal education that is otherwise, that brings something else into the law classroom such that it might serve as the meeting point between law and justice.http://www.jutalaw.co.za/catalogue/itemdisplay.jsp?item_id=3603am201

The jurisprudence of Steve Biko : a study in race law and power in the "afterlife" of colonial-apartheid

This study contemplates the development of a South African critical race theory (CRT) with reference to the thought of Steve Biko. From a long view, the aim of this research is to bring the insights of the Black Radical Tradition to bear on the study of law and jurisprudence with particular focus on the problem of “post-­apartheid South Africa”. Working from the scene of the “afterlife” of colonial-­apartheid and situated at the intersection of critical race theory (CRT) and Black Consciousness (BC), this study aims to develop an alternative approach to law and jurisprudence that could respond to the persistence of race and racism as the deep and fundamental fault-­lines of post-­1994 South Africa. The transition to a “new” South Africa, undergirded by the discourses of human rights, nation-­building and reconciliation and underwritten by a liberal and Western constitution followed a path of change and transformation which has resulted in the reproduction of colonial-­apartheid power relations. Settler-­colonial white supremacy as both a structure of power and a symbolic order continues to determine, shape and organise the South African socio-­economic, cultural, political, psychic and juridical landscape. This foregoing problem has remained largely unthought in the South African legal academy and therefore this research takes up the task of recalling the thought, memory and politics of Steve Biko in search of a critical and liberatory perspective that could counter dominant theoretical and jurisprudential accounts of the past and present. The study therefore explores Biko’s historical interpretation of the South African reality and his theorisation of concepts such race, identity and liberation and retrieves these in order to critique and contest both post-­1994 law, society and jurisprudence as well as the faulty epistemological, historical, and ideological terms on which they are based. In the end, the study proposes to read Biko’s thought as standing in the guise of a jurisprudence of liberation or post-­conquest jurisprudence which unsettles the very foundations of “post”-­apartheid law and reason.Thesis (DPhil)--University of Pretoria, 2017.JurisprudenceDPhilUnrestricte

Popular culture, law and our "sexed and gendered lives" : feminist reflections on "refusal" and "sisterhood"

This article reflects on the current trajectory of feminist legal theory from the perspective of popular culture and social discourse. With the use of film theory, literature and entertainment media, the author illustrates how depictions of gender codes and representations of gender relations in popular culture link up with larger questions on sex and gender politics, equality and power. Analysing these issues in terms of the extent to which popular culture reinforces patriarchal prescriptions of women's identity and contributes to strengthening the culture of male dominance in society, two distinct theories are formulated as possible responses namely, an "ethics of refusal" and a "politics of sisterhood". The notion of "refusal" as introduced by Karin van Marle is an approach to issues of gender (in)justice and (in)equality that explores the capacity of women to resist male dominance and in turn, problematise the values and norms laid down by the reigning patriarchal order. To connect the refusal of patriarchal conceptions of women's issues to the refusal of gender power, a "politics of sisterhood" offers a counterweight to the underlying phallocentric conditions and structures that subordinate, exclude and control women. The main purpose of this article is to emphasise the importance of thinking about women's lives and concrete realities, as experienced under (the) law, in dynamic ways that break from traditional approaches to feminism and gender equality. Refusal and sisterhood are two perspectives that disclose such possibilities for reflecting on women's struggles for equality, dignity and recognition and on eradicating the vestiges of patriarchy and sexism in our society. In the final analysis, the author argues for more than just legal reform and instead calls for reconciliation between the sexes and genders and a radical transformation of sex and gender relations.http://www.jutalaw.co.za/catalogue/itemdisplay.jsp?item_id=360

Azanian political thought and the undoing of South African knowledges

This article sets out a few key questions, themes, and problems animating an Azanian social and political philosophy, with specific reference to the radical promise of undoing South African disciplinary knowledges. The article is made up of two parts: The first part discusses the epistemic and political forces arrayed against black radical thought in South Africa and beyond. A few current trends of anti-black thinking – liberal racism, Left Eurocentrism, and postcolonial post-racialism – which pose challenges for the legibility of Azanian critique are outlined. Part two constructs an exposition and synthesis of key tenets of Azanian thinking elaborated upon under three signs: ‘South Africa’, ‘race and racism’, and ‘Africa’. The aim of the discussion is to illustrate the critical, emancipatory potential of Azanian thought and its radical incommensurability with dominant strands of scholarship in the human and social sciences today. The article ultimately defends the reassertion of black radical thought in the South African academy today and underscores in particular the abolitionist drive of Azanian political thought.http://journals.berghahnbooks.com/theoriadm2022Jurisprudenc

The grey line in-between the rainbow : (re)thinking and (re)talking critical race theory in post-apartheid legal and social discourse

All I’m saying is that even if they tried, the constitutional dispensation that they [the ANC] have negotiated for and have accepted and are not testing is anti-Black. [I]n a racially structured polity, the only people who can find it psychologically possible to deny the centrality of race are those who are racially privileged, for whom race is invisible precisely because the world is structured around them. Nothing will be reconciled in the time of reconciliation.nf201