WELCOME TO JURISPRUDENCE

310

LEGAL PHILOSOPHY
2024
DEPARTMENT OF JURISPRUDENCE
JUR 310 (LEGAL PHILOSOPHY) IS PRESENTED BY THE DEPARTMENT OF
JURISPRUDENCE
HOD: Prof Joel Modiri

Departmental administrator: Mrs Sunét Slabbert

 Law Building 2-11
 (012) 420 3756 (x3756)
 sunet.slabbert@up.ac.za
 Office hours: Monday - Thursday 08:00 – 14:00; Friday (via email).
 General information can be obtained from the departmental administrator and messages for
the lecturer can be left with her
 JUR 310 TEACHING TEAM

ACADEMIC ASSOCIATES
LECTURERS
Tumelo Marema and Lilandi Niemand
Prof Joel Modiri
Law Building 2-17 Law Building 2-33

(012) 420 2879 (x2879) (012) 420 5438 (x5438)

Joel.Modiri@up.ac.za Tumelo.Marema@up.ac.za| Lilandi.Niemand@up.ac.za
Consultation hours: See study guide
 TUTORS
Dr Sanele Sibanda
Law Building 2-18
Jordyn Arokiam
(012) 420 3628 (x3628)
Sanele.Sibanda@up.ac.za
Siyabonga Sithonya
Consultation hours: See study guide

Ms Elme Ravenscroft
Law Building 2- 19
(012) 420 5438 (X5438)
Elme.Ravenscroft@up.ac.za
Consultation hours: See study guide
ADMINISTRATION AND
ATTENDANCE
The course is conducted by means of lectures and tutorials. The main focus of the lectures is on
unpacking the substantive content, while tutorials are used for the development of critical literacy,
writing skills and for small-group discussions.
 Both lectures and tutorials will require students to attend continually, prepare readings in
advance and to participate actively. Failure to read in advance will result in difficulty following
discussions and explanations.

Reading! Reflection! Engagement!

 Assignment to a lecture group is NOT discretionary - no changes without permission are allowed.
 Information on tutorial exercises will be provided in lectures as well as on ClickUP once all
administrative arrangements are in place.
 Please consult the ClickUP website of JUR 310 regularly for information pertaining to this module
STUDY MATERIAL
 A READER containing the main prescribed texts has been prepared
for you and will be available for collection at the Department of
Jurisprudence.
 Consult ClickUP for details on collection days and times.

 Additional readings will be announced during lectures, tutorials and on ClickUP.

 NB: all lectures and class discussions form part of the study material.
 Important sections of the prescribed texts will be highlighted during lectures and tutorials.
 DO NOT rely on study material/notes from other universities or years of study.
ASSESSMENT
 The semester mark in JUR 310 is composed as follows:

 Test 50%
 Essay 40%
 Tutorials 10%

 Details on the scope and format of the test will be communicated in good
time
 The essay topic and exam essay are assessment are pre-set and are
contained in the study guide so as to enable you to start considering the
issues they raise early in the module.

 See regulations regarding “sick test” opportunities and plagiarism (NB!)

PLAGIARISM, ACADEMIC DISHONESTY AND
ARTIFICIAL INTELLIGENCE
 The Department of Jurisprudence notes the rising trend of students relying on generative
artificial intelligence (AI) technologies such as ChatGPT, QuillBot, Grammarly,
Bard/Gemini etc. in the preparation and presentation of assignments. However, the aim of this
module and your LLB studies is to develop students' core competencies and skills (reading,
comprehension, writing, analysis, problem-solving and critical thinking).

 We therefore DO NOT PERMIT the use of ANY generative AI applications in JUR 310,
since this undermines the learning outcomes of the module and constitutes academic
dishonesty. At the same time, we encourage students to educate themselves on the main
risks posed by these technologies in terms of data privacy and copyright, accuracy of
information and sources, equity and accessibility.
DEPARTMENT OF JURISPRUDENCE
TEACHING PHILOSOPHY
 Law and legal theory in a “post”-1994 South African context
 Basic introduction to main schools of thought in legal, social and political theory – in the context of
South Africa
 Law in relation to the humanities; wider / expansive conception of law informed by multiple
disciplines
 Adopts critical approach and perspective – highlighting cracks and tensions in the legal and political
traditions that have shaped our past and present.
 To be critical = reading and thinking against the grain, going beyond the surface to uncover not only
conventional meanings and approaches but also bringing to light alternative ones.
 Examine law’s role in constructing, perpetuating and addressing forms of social exclusion and
oppression + how legal knowledge itself is constructed.
 Legal education = developing the capacity to think and act as an active, thoughtful, democratically-
minded and publically-oriented citizen.
VALUES
 University education is a space for young adults to discover and confront new ideas; to
have the freedom to think – different to high school
 Respectful, candid and healthy debate based on informed opinions
 Contradiction and discomfort as much a part of learning as is defending your ideas with
reasons
 Approach lecturer if you have any difficulties or want to know/talk more
 Emphasis on UNDERSTANDING AND ENGAGING theories/ideas/perspectives – not
AGREEING with them
 Learning starts but does not END in the classroom – do further research on issues that
interest you
 Everyone has a right to learn / ask questions / be heard in an affirming and welcoming
environment
 Challenging dominant assumptions – key part of creating better societies and a better
world
JUR 310 5 STAGES OF ACTIVE READING

1. Prepare for class (read text generally)

 Jot down any questions that come to mind
2. Attend class (note key aspects of text) and join in discussion
 Use those questions you jotted down to enter discussion
3. Revision and in-depth reading of text (main argument/crux)
 Are your questions answered or are there even more questions?
4. Second in-depth reading of text (comprehension, evaluation and
own perspective)
 What from the reading resonates? What does not resonate?
Why?
5. Discuss with lecturers / tutors and friends/fellow students
SKILLS, AIMS, OUTCOMES .../ 1
 Research-intensive course
 Research; analysis; writing; critical thinking skills

 Read and analyse a text – identify key argument

 Evaluate arguments – informed / substantiated opinion or viewpoint
 Theoretical and conceptual engagement
 Use of academic sources – planning/structuring academic essay
 Referencing
 Developing original argument – moving beyond summary
SKILLS, AIMS, OUTCOMES …/ 2
 By reading and studying the various approaches, theories and theorists students should
achieve a better understanding of the following in order to apply it to conceptual and
practical problems:
 Law’s relation to the humanities and social sciences
 Epistemic violence, epistemic diversity, epistemic justice
 The relation between law & morality, law & justice, law & politics, law & democracy, law &
judgement but also law & reconciliation, law & transformation, law & critique
 The differences between premodern, modern and postmodern approaches
 The role of African philosophy in post-1994 jurisprudence
 The place and role of race, sex, gender, sexuality & class in law generally but post-1994 law in
particular
COURSE THEME (2024):
“LAW, DEMOCRACY AND JURISPRUDENCE”

“Law and democracy seem oddly estranged in academic philosophical

discourse. Aside from some controversies about constitutionalism, there
is very little mention of democracy in most contemporary jurisprudential
treatments. Likewise, one can leaf through extensive discussions of
democracy that do not elaborate any distinctive, essential role that law
plays in achieving democratic aims. Law tends to be treated as an
instrumental afterthought.”
(S Shiffrin “Democratic Law” in Speaking Amongst Ourselves: Democracy
and Law: The Tanner Lectures on Human Values (2017) 145)
COURSE THEME (2024):
“LAW, DEMOCRACY AND JURISPRUDENCE”
 FOCUS: The generally unexplored relationship between law and democracy with particular
reference to jurisprudence.
 2024 in South Africa marks a significant milestone in the history of post-1994 South Africa –
30th anniversary of democracy and 7th democratic parliament.
 Much celebration / lamentation - democracy ushered in freedom and the possibility of the
achievement of justice by finally allowing the ‘will of the people’ to be expressed through
elections and in turn for the people’s ‘will’ to prevail through democratically enacted laws –
this ‘will’ being encapsulated and protected in a democratic constitution
 Post-1994 South African democracy, therefore, posited as the greater equaliser that brought into
being a just legal order to replace its unjust, racist, undemocratic colonial-apartheid
predecessor.
 Key notable assumptions: (i) the idea of elections as synonymous with democracy; (ii) the
association of democracy with mainly formal state power; and (iii) the tendency to view law
and democracy as harmonious with each other.
COURSE THEME (2024):
“LAW, DEMOCRACY AND JURISPRUDENCE”
 Some questions to consider at the outset:
 Is this naturalisation of the relationship between democracy, law and justice borne out by the
evidence of history or modern experience?
 Does law have to be democratic to be law?
 Accepting that both law and democracy are concerned with social and political ordering, does it
necessarily hold that both are equally concerned with questions of justice?
 Taken Individually and together how do both concepts relate to the attainment of a more just
society or, more simply social justice?
 Do they need to advance justice to be valid and binding?
 Ultimately, our central concern in the module will be to ask the question: does jurisprudence assist us
in understanding and explaining the relationship between law and democracy, and the role of both in
advancing social justice under modern conditions of liberal democracy?
LAYING SOME FOUNDATIONS
WHAT IS DEMOCRACY?
 The meaning of democracy is contested – no one size-fits all definition
Democracy is a noun permanently in search of a qualifying adjective. The core Idea – that
decisions affecting the members of a political community should be taken by the members themselves,
or at least by elected representatives whose power to make decisions ultimately derives from the
members – is more or less settled.
Theunis Roux ‘Democracy’ in S Woolman et al (eds) Constitutional Law of South Africa
 Key ideas
 Collective
 Decision-making
 Power
LAYING SOME FOUNDATIONS
WHAT IS DEMOCRACY?
 Conceptions of Democracy
 direct democracy -
 Exercised through right to freedom of Assembly, demonstration, picket and petition and referendum
 representative democracy (such as a multi-party democracy)
 Exercised through elected representatives, also known as electoral democracy entailing uuniversal adult suffrage, a
national common voters roll, regular elections and a multi-party system of democratic government, to ensure
accountability, responsiveness and openness
 participatory democracy
 Exercised through participation on decision-making process, although final decision made elsewhere (parliament)
 Constitutional democracy
 More a descriptive term of a type of state rather than one characterising that nature of participation in decision-
making
Questions: Do these conceptions make any explicit or implicit claim to justice? How do they relate
to law?
PREPARATION FOR NEXT WEEK

 READINGS

 Heidi Brooks, Trevor Ngwane & Carin Runciman “Decolonising and re-theorising the
meaning of democracy: A South African perspective” (2019) 68(1) The Sociological
Review 17 – 32

 Wendy Brown “Why Is Democracy So Hard? University of California, Berkeley

Memorial Lecture for Erik Olin Wright, January 2020” (2020) 48(4) Politics &
Society 539 – 552
ENJOY THE MODULE!