What is critical jurisprudence?
A branch of jurisprudence that originated out of critical legal studies.
What two primary dimensions does critical post-apartheid jurisprudence consider with regard to the post apartheid condition of the law?
- Temporal (Historical/Formal)
- Spatial/Substantive
What is the temporal dimension concerned with?
The time of critical post-apartheid jurisprudence.
* ‘post-apartheid’ refers to a time after apartheid
What was the most important institutional dismantling that occurred at the end of apartheid?
The abolition of minority rule in the form of parliamentary sovereignty and the replacement of Constitutional supremacy.
When was the generally accepted start to the transition of ending apartheid?
The 2nd of February 1990, when FW de Klerk announced that a negotiated understanding among the leaders of the entire population was necessary to ensure peace.
What were the highlights of FW de Klerk’s speech?
- The unbanning of the ANC, Pan Africanist Congress and the South African Communist
- Mandela’s release from prison (as well other political prisoners).
What is the aim of critical post-apartheid jurisprudence?
It aims to explore the question of a historical ‘end’ to the transition. It is concerned with the 2 Feb 1990, and the 1996 Constitution in February 1997.
* It concerns itself with the law’s conscience (morals).
Describe Positivism
- Driven by the idea of what law is.
- It is not concerned with morality.
At which 3 levels does critical jurisprudence consider law political?
- Validity
- Interpretation
- Limits
Describe validity in relation to critical jurisprudence
- Question of the legitimacy of law
- You make an implicitly political decision in that you judge the source to be legitimate.
e.g., judges in the courts who upheld apartheid law as valid, the police who enforced it
Describe interpretation in relation to critical jurisprudence
Those who interpret the law are human beings, and human beings are political creatures; they are not ‘neutral’.
Describe limits in relation to critical jurisprudence
Through a valid interpretation of the law, other meanings are excluded.
What does the emancipatory affirmative political philosophy believe?
It is a movement that stands for the universal idea of ‘freedom for all’.
Describe the relationship between ‘post-apartheid critical jurisprudence’ and transformative constitutionalism
Critical post-apartheid jurisprudence adopts transformative constitutionalism as its politics of interpretation.
How does Klare describe transformative constitutionalism?
a long-term project of constitutional enactment, interpretation, and enforcement committed to transforming a country’s political and social institutions and power relationships in a democratic, participatory, and egalitarian direction
What are the effects of transformative constitutionalism?
Large-scale social change through nonviolent political processes grounded in law.
How does Ackerman describe transformative constitutionalism?
He describes it as legal revolution
What are the 3 requirements for a revolution?
- large scale rejection by the population of an existing government’s authority;
- replacement of that government by extra-constitutional means (change in the location of sovereignty), sometimes violently;
- considerable shift in the achievement of freedom for the population.
