J Modiri: “The Colour Of Law” Flashcards
- (c) Legal Discovery Society
J MODIRI: “The Colour of Law”
Modiri argues that there are two primary principles in Critical Race Theory
(CRT). What are they? (2)
- (c) Legal Discovery Society
◦ Centrality of Racism: Racism is an embedded, normalized aspect of society
that operates in subtle, covert ways (such as indirect discrimination) as well as
overt forms. These two modes coexist rather than one replacing the other,
requiring the assumption that racism is a persistent societal feature.
◦ White Supremacy: This concept refers to the systemic control and power
retained by white people. Racism’s significance is both structural and
individual, underscoring that racial inequities cannot simply be eradicated
through constitutional protections of equality. White supremacy requires
continual challenge rather than passive acceptance, as accepting it negates
human agency to reshape history.
According to Modiri, a post-apartheid CRT should encompass an
interconnected analysis of at least three points. What are they? (3)
◦ Critique of Law and Legal Institutions: A critique should address how legal
systems perpetuate racist ideologies, revealing how law upholds power
dynamics and entrenched social structures. Legal thought should consider
subjective experiences and the material conditions of people’s lives.
◦ Analysis of Racialized Wealth Inequality and Poverty: CRT should critique
not only racism but also capitalism, recognizing how Black exploitation is tied
to capitalism and white supremacy. For instance, South Africa’s commitment
to liberal capitalism after apartheid has limited reparations, socioeconomic
changes, and the deracialization process to align with “market rationality” and
foreign investment.
◦ Engagement with Race, Culture, and Identity Dynamics in Post-
Apartheid Society: There should be a distinction between “post” and “past”
apartheid, acknowledging that apartheid wasn’t just a legal error but an
intentionally crafted power structure demanding profound transformation.
This aligns with the argument that transformative constitutionalism must be
realized beyond legislation.
What should the connection between CRT and post-apartheid jurisprudence
primarily illustrate? (2
◦ The enduring impact of racial oppression is evident in post-apartheid South
Africa. It’s crucial to examine life under the law following apartheid,
especially how white privilege and supremacy persist through systemic
exclusion of Black individuals, both directly and indirectly. Placing race at the
forefront of discourse is essential for CRT.
Glasgow identifies three current perspectives on race. Name and briefly discuss
these. (6)
◦ Eliminativism: This viewpoint argues for the complete removal of “race”
from people’s thinking, identities, and formal political or legal processes.
◦ Conservationism: This stance contends that removing race from discussions
would overlook its importance in shaping identities, social realities, and power
dynamics. Race remains a significant source of meaning for individuals and
helps predict their life experiences.
◦ Reconstructionism: While agreeing that race should be retained to address
injustice, reconstructionism sees race as a social concept rather than a
biological fact. It calls for reshaping racial discourse to address the historical
impacts of race without reinforcing racial hierarchies or supremacist ideas.
Identify the six foundational CRT principles that challenge conventional legal
thought. (6)
◦ Critique of (Neo) Liberalism: CRT dismisses liberalism’s cautious stance on
change, its colorblindness, and rights-based approach, viewing racism as a
systemic, cultural feature reinforced by political and legal frameworks. CRT
rejects the idea that law and politics are distinct fields; instead, it argues that
neutrality can perpetuate racial inequality when inequality among Black
individuals is normalized.
◦ Anti-Essentialism: This tool reveals that categories like “Black” or “womxn”
lack fixed definitions or singular experiences. CRT critiques identity politics
that attempt to consolidate varied Black experiences into a singular narrative,
as this can overlook diverse individual realities.
◦ Intersectionality: CRT recognizes that identities are multifaceted, defined by
race, class, gender, nationality, and more. For instance, Critical Race
Feminism (CRF) emerged to address gender and race discrimination,
emphasizing that intersecting identity factors often compound discrimination.
◦ Structural Determinism: This aspect examines how dominant legal concepts
influence interpretation and whether they preserve or challenge the racial
status quo. It posits that the legal system often reflects a white-centric view of
law, erroneously claiming neutrality and fairness.
◦ Multidisciplinary Approaches: CRT pulls from various fields to understand
white supremacy and anti-Black racism, emphasizing that legal discourse and
race relations are historically contextual. This approach challenges the
legitimacy of normalized social practices, advocating for large-scale social
change that isn’t restricted to legal frameworks.
◦ Narrative: CRT uses storytelling to critique legal doctrines, offering a voice
to marginalized perspectives and showing that social realities can be
redefined.
◦ Critique of (Neo) Liberalism: CRT dismisses liberalism’s cautious stance on
change, its colorblindness, and rights-based approach, viewing racism as a
systemic, cultural feature reinforced by political and legal frameworks. CRT
rejects the idea that law and politics are distinct fields; instead, it argues that
neutrality can perpetuate racial inequality when inequality among Black
individuals is normalized.
◦ Anti-Essentialism: This tool reveals that categories like “Black” or “womxn”
lack fixed definitions or singular experiences. CRT critiques identity politics
that attempt to consolidate varied Black experiences into a singular narrative,
as this can overlook diverse individual realities.
◦ Intersectionality: CRT recognizes that identities are multifaceted, defined by
race, class, gender, nationality, and more. For instance, Critical Race
Feminism (CRF) emerged to address gender and race discrimination,
emphasizing that intersecting identity factors often compound discrimination.
◦ Structural Determinism: This aspect examines how dominant legal concepts
influence interpretation and whether they preserve or challenge the racial
status quo. It posits that the legal system often reflects a white-centric view of
law, erroneously claiming neutrality and fairness.
◦ Multidisciplinary Approaches: CRT pulls from various fields to understand
white supremacy and anti-Black racism, emphasizing that legal discourse and
race relations are historically contextual. This approach challenges the
legitimacy of normalized social practices, advocating for large-scale social
change that isn’t restricted to legal frameworks.
(c) Legal Discovery Society
◦ Narrative: CRT uses storytelling to critique legal doctrines, offering a voice
to marginalized perspectives and showing that social realities can be
redefined.
◦ Critique of (Neo) Liberalism: The excerpt shows racism perpetuated through
political power and legal reasoning, an indication that it is a systemic issue
ingrained in social culture. CRT rejects the separation of law and politics, as
neutrality can solidify a racially biased status quo. Situations where Black
individuals face material inequality illustrate how neutrality can
unintentionally reinforce racism.
◦ Anti-Essentialism: (You may want to elaborate on how this applies.)
◦ Intersectionality: The case involves not only race but also Rastafarian
culture, demonstrating CRT’s stance that multiple identity factors affect
discrimination.
◦ Structural Determinism: CRT investigates how established legal doctrines
influence legal interpretation, which can either uphold or challenge racial
inequality. The case reflects how the legal system often upholds a white-
centered view of law while purporting neutrality, leading to conservative
interpretations that may stifle constitutional progress.
◦ Multidisciplinary Approaches: CRT draws on history and other disciplines
to address white supremacy and anti-Black racism. Historical context is
crucial in analyzing racialized laws, as with the racially biased criminalization
of dagga use. A historical and social analysis would reveal the role of
Rastafarianism in anti-colonial struggles and the apartheid regime’s preference
for Christianity, which contributed to the marginalization of Black South
Africans
