This note is a joint venture between a student in his third year of studies at the University of Pretoria Faculty of Law and someone who has been teaching law in that Law Faculty since 1999. Several conversations about the need for critical thinking in law schools and our shared experience of the absence of it resulted in this note which is offered here as a tentative contemplation.
The general aim is to reflect on critical thinking in legal education. Of course the issue of critical thinking, critical theory and critique and how to relate this to law, legal education and legal practice is complex and multi-layered. Many questions arise: How does one encourage students to think in a critical manner? How does one teach them/illustrate to them what critical thinking entails? But beyond that, what does critical thinking about law or a critical approach to law mean? Of particular concern to us is what role critical theory plays in developing such a critical approach to law, and in teaching students a critical approach to law. Some might argue that even with all these questions we have missed the most crucial starting point: why is it necessary to include critical thinking in legal education in the first place?
Our argument unfolds as follows: with reference to the post-apartheid context and in light of the specific challenges faced by South African society in the 'new' legal and political order, we start by putting forward a tentative argument for the need for critical engagements with law. We then turn to two of the dominant critical legal theoretical traditions that have influenced critical approaches to law in South Africa during and in the aftermath of apartheid. Finally, we rely on some philosophical/theoretical reflections in support of thinking and theoretical engagement.