Question 1 The main philosophical argument in this article is based on the critical race theory and critical legal studies. The notion of race continues to permeate every aspect of both public and private life in South Africa. Racism is an inherent part of South Africa’s society. Race is not an e...
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NAME: Veronica James Naidoo …………………………………………………………
SIGNATURE:
STUDENT NUMBER: 3288-312-9…………………………………………………………
MODULE CODE: LJU4801..……………………………………………………………….
DATE: 29.04.2018…………………………………………………………………………….
Page 1 of 24
,Question 1
The main philosophical argument in this article is based on the critical race theory
and critical legal studies. The notion of race continues to permeate every aspect of
both public and private life in South Africa. Racism is an inherent part of South
Africa’s society. Race is not an element of human biology, nor is it an idea, but an
ideology.1 Society is not based on merit, nor is it neutral or objective. 2 Society is not
colour-bind, in that race insinuates itself into our responses to situations and people. 3
When addressing the issue of racial discrimination, it must be addressed from a
historical perspective and a contextual understanding of the law. 4 From a critical
legal studies perspective the law is no longer neutral or rational. The law is politics. .
“Racial categories remain inscribed in our law and in official policies. While race was
previously the locus of “white” privilege, race has now become the site of redress”. 5
The intersection between race and the law goes beyond the disciplinary boundaries
of law.6 If we insist that race is absolutely irreverent and superfluous, how can the
powerful effects of past and ongoing racial discrimination be addressed. 7 The
experiences and consciousness of people of colour must be taken into consideration
1 De Vos P "The past is unpredictable: race, redress and remembrance in the South African
constitution" 2012 South African Law Journal 73.
2 De Vos 2012 SALJ 77. “Criticism of a “black” candidate by a “white” lawyer, journalist or
academic will often be perceived by other black persons as being based on negative racial
stereotypes and assumptions.”
3 De Vos 2012 SALJ 78.
4 De Vos 2012 SALJ 78. “While South Africa has emerged from a period in its history in which
race of every individual played a decisive role in determining their life chances, allocating social
status and economic benefits on the basis of race in terms of a rigid hierarchical system
according to which every person was classified by the apartheid state”.
5 De Vos 2012 SALJ 79.
6 Kroeze IJ Legal philosophy: Only study guide for LJU4801 (University of South Africa Pretoria
2017) 205.
7 De Vos 2012 SALJ 81.
Page 2 of 24
, in understanding law and society.8 Creating an awareness of our different
conceptions of the past will enable the courts to deal with the paradox of race and
redress. Racial categories are necessary in order to effect redress. 9 Liberation of
black people within the context of liberation of all oppressed people must be taken
into account.10 A formal conception of equality would not address the effects of past
racial discrimination, because it would not take into account past racial discrimination
and racism. No person should be reduced merely to their racial identity, irrespective
of how critical racial identities still exist in South Africa. 11
Question 2.1 Critical Legal Studies (CLS)
“Critical legal studies is based on the idea of false consciousness, in that it is very
sceptical of accepted ideas, theories and assumptions about society and the law
Political and legal ideologies create a specific manner of thinking about life and
society, which leads one to believe that this is the way it ought to be. 12 The law is no
longer rational, neutral or value free. The law is seen as an ideology that legitimises
a fundamentally unjust social order by creating an illusion that this system is natural.
The law is politics, in which the wealthy and the powerful use the law as an
instrument for oppression in order to maintain their place in hierarchy. 13 In CLS
society is characterised by alienation, hierarchies, violence and arbitrary exercises of
power for which no legal justification can be found. 14
8 Kroeze Legal philosophy 205.
9 De Vos 2012 SALJ 82.
10 Kroeze Legal philosophy 205.
11 De Vos 2012 SALJ 98.
12 Kroeze IJ Legal philosophy: Only study guide for LJU4801 (University of South Africa Pretoria
2017) 185.
13 Legal Information Institute https://www.law.cornell.edu/wex/critical_legal_theory (Date of
use: 23 April 2018).
14 Kroeze Legal philosophy 187.
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