2022LJU4801
LegalPhilosophy/As
signment 03FINAL
PORTFOLIO
, QUESTION 1
Modiri draws on the approaches of critical race theory (CRT). Settler colonial studies
and African jurisprudence. 1 Critical race theory, concerns itself with the role of law
and legal knowledge in both concealing and sustaining white social power. This 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
failure future.2
The basis of all critical theory is the questioning of prevailing ideas. Modiri employ
conquest (especially economic power by whites) as a framework and basis to argue
that a jurisprudence emanating from experience 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 in presently the case.3
Modiri CTR developed from Critical Law Studies (CLS) and looks at the position of
different races in society and how social structures and patterns impact on their
equality.4 The Article identifies the problem of reconstituting a new polity and new
law in South Africa. 5 Informed by “settler-colonial studies”, Modiri adopts CRT “to
contemplate jurisprudence outside of liberal constitutionalism”.6 This theory is seen
as a search for alternative jurisprudence against the more conservative positivist
legal thinking in South Africa.
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. However,
given the limitations of the law, reliance should not only be exclusively on the rights
but other tactic to bring about participatory democracy.
QUESTION 2
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
Modiri 2018 SAJHR 324.
4
Kroeze IJ Legal Philosophy: Only study guide for LJU4801(Unisa Press Pretoria 2017) 183.
5
Modiri 2018 SAJHR 304.
6
Kroeze Legal Philosophy 213.
1
LegalPhilosophy/As
signment 03FINAL
PORTFOLIO
, QUESTION 1
Modiri draws on the approaches of critical race theory (CRT). Settler colonial studies
and African jurisprudence. 1 Critical race theory, concerns itself with the role of law
and legal knowledge in both concealing and sustaining white social power. This 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
failure future.2
The basis of all critical theory is the questioning of prevailing ideas. Modiri employ
conquest (especially economic power by whites) as a framework and basis to argue
that a jurisprudence emanating from experience 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 in presently the case.3
Modiri CTR developed from Critical Law Studies (CLS) and looks at the position of
different races in society and how social structures and patterns impact on their
equality.4 The Article identifies the problem of reconstituting a new polity and new
law in South Africa. 5 Informed by “settler-colonial studies”, Modiri adopts CRT “to
contemplate jurisprudence outside of liberal constitutionalism”.6 This theory is seen
as a search for alternative jurisprudence against the more conservative positivist
legal thinking in South Africa.
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. However,
given the limitations of the law, reliance should not only be exclusively on the rights
but other tactic to bring about participatory democracy.
QUESTION 2
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
Modiri 2018 SAJHR 324.
4
Kroeze IJ Legal Philosophy: Only study guide for LJU4801(Unisa Press Pretoria 2017) 183.
5
Modiri 2018 SAJHR 304.
6
Kroeze Legal Philosophy 213.
1
