Jurisprudence Notes

Introduction

Disclaimer: myLMS content may slightly deviate from lecturer-led sessions, but myLMS material, prescribed textbooks, and designated learning resources constitute the compulsory content for assessments.

Eduvos and the Flipped Classroom

Lecturers may recommend concepts to revise based on session difficulty. Students should focus on myLMS learning opportunities during self-study to prepare for the next lecturer-led session. Preparation includes practice activities and formulating questions. Lecturer-led sessions involve active learning, question sessions, debates, and practicing technical aspects, providing exposure to higher-order thinking activities.

Engagement Guidelines

Treat each other with respect and come to class prepared. Feel free to ask questions.

Session Coverage

This session includes getting to know each other, discussing the Module Guide, and an introduction to Jurisprudence (AC 1.1 – 1.3). We will explain why understanding theories of law and justice is crucial for studying South African law and its impact on society, discuss African philosophy and its relevance to law, and differentiate schools of jurisprudence (legal positivism, natural law, legal realism, liberalism, critical legal studies, ubuntu, critical race theory, feminism).

Essentials

Access to the institution’s Learning Management System (myLMS), Microsoft Teams, and a resource center or an online library with resources including textbooks, newspaper articles, journal articles, organizational publications, and databases. Also, access to academic journals in electronic format via ProQuest or other databases.

Prescribed Textbook

Bilchitz, D., Metz, T. and Oyowe, O. 2017. Jurisprudence in an African Context. Oxford University Press Southern Africa. ISBN: 9780199048496 eBook ISBN: 9780199051557

Why Jurisprudence?

Jurisprudence addresses questions such as: What is the nature of law as a discipline? What ought to be law? What is the content and the meaning of justice? What is the relationship between law and justice?

Defining Jurisprudence

Jurisprudence is the study of the philosophy of law, the relationship between law and morality, law and identity, and law and justice. It involves various theories of law/theoretical approaches to law. It assesses the law in an abstract sense and considers law critically.

Historical Contextualisation

A world map indicates economies based on the gross national income (GNI) per capita data from 2022. Source: The World Bank.

Colonial Scars: Epistemicide

Colonialism in South Africa intensified the dynamics of knowledge production, where local interpretations of law and philosophy were replaced by colonial modes of thought. The history of colonialism in South Africa exemplifies the North's attempt to impose its knowledge systems. Local legal and philosophical traditions were suppressed in favor of those brought by the colonisers. This suppression had a lasting impact on the development of African philosophy.

Jurisprudence in an African Context

Two problems facing jurisprudence in an African context are: the Global North is often thought of as being the source and creator of theory whilst countries in the South simply apply what has been developed in the North to their contexts. Also, authors in the Global North often make claims about the global validity of their theories but fail to reflect on the manner in which their theories might be particular to the North.

Decolonisation of the curriculum:

Universities across South Africa have been faced recently with a strong charge to decolonise the curriculum. This notion requires academics to address the fact that there has been a historic privileging of ‘Global North’ knowledge and worldviews, as well as an under-valuation and marginalisation of thought from Africa (and the Global South more generally).

Universality vs Particularity

Northern theorists often claim universality for their theories, neglecting their specific Northern (Western) context. Theorists from the Global North often present their ideas as universally applicable, overlooking the fact that these theories may be rooted in specific Northern experiences. In contrast, Southern theorists, such as those working in Africa, are more likely to acknowledge the situatedness of their knowledge, recognising that their ideas are informed by their particular contexts.

What is African philosophy?

Text: The Question of African philosophy by Prof Bodunrin (p. 37). How does Bodunrin define African philosophy? Bodunrin does not consider a study of traditional belief systems as sufficient to constitute ‘philosophy’. Bodunrin rejects the idea that somehow African philosophy must be focused on a set of concerns that are particular to Africa. He rather emphasises the continuity of African thought with the concerns of philosophy in other parts of the world. Indeed, he sees a defining feature of philosophical problems as having universal relevance for understanding the world around us.

Defining African philosophy

Bodunrin resists essentialising African philosophy by comparing it to British philosophy: British philosophy cannot be reduced to one set of doctrines = African philosophy can also not be reduced to one set of doctrines. British philosophy cannot be defined by its particular emergence from that region = African philosophy can also not be defined in this manner. British philosophy does not emerge from philosophers who are born in Britain only = the same can be said for African philosophy.

Defining African philosophy

Traditional cultures of pre-colonial Africa were not uniform and unanimous with respect to the beliefs and practices relating to law, and not all traditional African peoples held the same concept of law. It does not follow that because certain groups of people happen to occupy the same geographical areas, they are also unanimous about the meaning of concepts. Yet, we can reasonably expect the term ‘African’ to refer meaningfully to the cluster of beliefs, norms, values and practices that have predominated over a long span of time and wide array of peoples who have inhabited this continent.

Theories of law and theories of justice

The first half of the textbook explores the concept of law, its nature and its relationship to morality and politics. An important sub-component of this section of the book considers how judges should decide cases (adjudication). The second half of the textbook deals more with questions of justice and political philosophy: What should our laws be? How should our laws distribute benefits and burdens between individuals? How should legal infractions be handled?

Law and Justice

Law is a system of rules and regulations that are enforced by the state. Justice is the fair and equitable treatment of all people. While law and justice are often seen as going hand-in-hand, this is not always the case. A law may be legal but still be unjust. For example, a law that discriminates against a particular group of people would be considered unjust, even though it may be technically legal. Studying theories of law and justice helps us to understand the relationship between these two concepts and to critically evaluate how well legal systems achieve justice…

Theories of Justice

These theories are important because they help us to think critically about how a society should be structured. They ask questions about what constitutes a fair and just distribution of resources, rights, and burdens. Theories of justice can also help us to think about our own obligations as citizens. They can help us to understand the relationship between the individual and the state, and the importance of participating in the political process.

Why is jurisprudence important in (South) Africa?

Questions regarding law and justice are particularly important in a diverse society like South Africa, where there is a long history of inequality, including colonial-apartheid, racial and gender discrimination. The South African Constitution (1996) is based on a commitment to justice and equality. Understanding theories of justice can help us to evaluate how well the Constitution is living up to its promises.

Jurisprudence in the South African context

Food for thought: Has the South African Constitution (1996) lived up to its promises? How/why?

Schools of Jurisprudence

Natural law

Premodern legal thinking. Natural law is the idea that there is a real, pre-political set of rules that provide the yardstick against which human laws can be measured. This set of rules tells us what is right or wrong. Natural law is a theory that suggests that there is a body of universal law that governs human conduct. This law is derived from reason or nature, and it is superior to human-made laws. Natural law theory has been used to justify a variety of legal and political principles, including individual rights, limited government, and the rule of law. Natural Law: Believes there are universal moral principles that underpin just laws. Law cannot be separated from morality. E.g., even if a law exists, it might be considered invalid if it contradicts natural law principles like human rights.

Natural law: Schools

Ancient / Classical Natural law- There is an eternal order of the universe, based on cosmological/ supernatural powers. Medieval / Christian Natural law- Law is based on the divine will of God (Christianity). Humans know the law through God. Modern / secular Natural law- Law is known through human reason such as a social contract.

Case Study: Scenario 1

Scenario: A small island nation faces a severe food shortage. The government enacts a law allowing authorities to take children from families with more than two children to conserve resources. A family with three children hides their youngest child, and the parents are arrested when discovered.

Question: What would a Natural Law theorist argue in this case?

Ubuntu (African conception of law)

Premodern conception of law. Life is protected and governed by supernatural forces through a metaphysical triadic structure: Living dead (supernatural forces), Living, and Yet-to-be-born. Justice is determined by the supernatural forces but is directed towards the world of the living and the yet-to-be-born. Justice, according to ubuntu, is the restoration of equilibrium.

Ubuntu (African conception of law)

Ubuntu conception of law tends to focus on concrete social reality. Since social reality is dynamic, flexible, adaptable and never static, a corresponding conception of law is not likely to be formalised in the way theories in Western legal thought are. The notion of a living customary law, in the mold of Ramose’s conception of law, is recognised in contemporary South African law. For instance, in Shilubana v Nwamitwa, the CC noted the ‘adaptive’ character of living customary law. Specifically, it noted that ‘customary law is an independent and original source of law’ and ‘adaptive by its very nature’. Moreover, it noted that ‘… change is intrinsic to and can be invigorating of customary law’. In Bhe v Magistrate, Khayelitsha they argued that ‘because of the dynamic nature of society, official customary law as it exists in the textbooks and in legislation is generally a poor reflection, if not a distortion of the true customary law …’

Legal positivism

Some of the most famous legal positivists include HLA Hart and Jeremy Bentham. Legal positivism is the view that law is a set of rules created by human beings and holds that the validity of a law is independent of its morality. Positive Law: Focuses on law as it is written and enforced by the state, separate from morality. E.g., a law may be unjust, but still be considered 'positive law' if enacted by the state. Law is whatever the state says it is. Laws are valid simply because they are enacted by the state, regardless of their content. Positive law focuses on the sources of law, such as legislation, judicial decisions, and custom.

Case Study: Scenario 1

Scenario: A small island nation faces a severe food shortage. The government enacts a law allowing authorities to take children from families with more than two children to conserve resources. A family with three children hides their youngest child, and the parents are arrested when discovered.

Question: What would a Legal Positivism theorist argue in this case?

Legal realism

Modern jurisprudential theory concerned with questions such as what law really is, what law ought to be, and how law relates to other social institutions. It holds that the law is not ‘neutral’. It is a critique of positivism: Law cannot be separated from morality. Law is indeterminate: Always space for discretionary judgements as there are different rules that could apply and there are conflicting interpretations of those rules. It is sceptical of rules: Law is what the courts decide, but this does not necessarily mean that law is determined by rules or books. Non-legal factors influence legal outcomes e.g.: Morality, politics, social issues and beliefs of judges.

Liberalism

Liberty (freedom and autonomy) is afforded primacy as a political value. It maintains that humans are naturally in a state of perfect freedom to order their actions as they think fit. Liberalism is a philosophy that starts from a premise that political authority and law must be justified. If citizens are obliged to exercise self-restraint, and especially if they are obliged to defer to someone else’s authority, there must be a reason why. Laws must be reasonable and limited and human freedom must be privileged above all else.

Critical theories of law

Deals with the relationship between law and justice. Can we conceive of a more just world/legal system?

Critical Legal Studies

Is most concerned with the social category of class. CLS does not produce/advocate for a common method or approach to legal scholarship and is influenced by multiple intellectual strands (legal realism, Marxism, postmodernism). CLS combines a progressive political critique with a skeptical jurisprudence. It views law as a tool of domination/power and holds that law serves to legitimise status quo. It critiques liberalism and exposes the role of the law in domination/oppression.

Feminist Jurisprudence

Primarily concerned with the social category of gender. It is a theoretical approach to the law which seeks to visibilise and provide theoretically sound conceptualisations of the domination and subordination of women in society.

Important concepts:

Patriarchy: Concept used by radical feminists to describe the social structures which allow men to dominate women. Intersectionality: Serves as an analytical tool to explore how a person’s political- and social identities overlap so that a person is disadvantaged (or privileged) by multiple sources of oppression: their race, class, gender identity, sexual orientation, religion, and other identity markers.

Case study: Scenario 2

Sarah, a highly qualified engineer at TechEx, consistently exceeds expectations and is known for her innovative solutions. A senior engineering position opens up, and Sarah believes she's the perfect candidate. However, her manager, Mr. Jones, promotes a less experienced male colleague, Mark. Sarah wants to challenge Mark’s promotion. What would a Feminist Legal Theorist argue?

Critical Race Theory

Primarily concerned with the social category of race. CRT aims to investigate a paradox:
*Continuation/persistence/intensification of racism and racial inequality in legal and social orders where racial discrimination is legally and morally prohibited.
*How prevailing/dominant conceptions of race and racism perpetuate relations of domination and oppression. It rejects standard liberal view of racism as a relic of the past or an individual deviation. Rather CRT views racism (white supremacy) as integral to social practices and institutions (i.e., racism is structural rather than a personal encounter). Race-consciousness: Approach to legal analysis that is conscious of race and racism and open to considering the effects of racialised identities and histories of racial domination.

Critical Race Theory (race)

Challenges many aspects of the liberal approach to race and law: Liberalism views law and the state as technically neutral, rational and apolitical. CRT follows CLS critique about the politics of law, and of the law as reinforcing subordination. Critique of exclusively rights-based approach (e.g., anti-discrimination legislation) cannot address systemic as well as unconscious racism. Legally-based remedies are insufficient to fully overthrow white supremacy. Insistence on colour-blindness (categorising individual in racial or group-based terms detracts from their autonomy). CRT challenges colour-blindness for denying the material reality of race and thereby perpetuating historically-produced racial imbalances.

Case study: Scenario 3

In a wealthy predominantly white neighborhood in Johannesburg, there is a high school with modern buildings, well-equipped classrooms and high-quality teachers. 5km away, in a nearby township where residents are predominantly black, there is a high school with one old building and limited resources. The township residents are unhappy with this inequality. What would a Critical Race Theorist argue?

The Flipped Classroom

Depending on how difficult this lecturer-led session is, your lecturer may recommend some concepts to revise for this week's learning opportunities. Then you will focus on the following learning opportunities on myLMS in