Transformation, tension and transgression : reflections on the culture and ideology of South African legal education

Abstract

This article enquires into and joins the critique of the current state of legal education in South Africa against the backdrop of a post-modern, post-colonial and post-apartheid context. In response to current debates on the state of legal education and the quality of the graduates it produces, the author argues that the problem goes beyond the failure to provide corporate law firms with appropriately skilled and qualified graduates but also has implications for substantive democracy, active political citizenship, transformation, freedom, justice, and ethics. Through a survey of select legal education literature in South Africa and abroad, the author identifies the central problem as being the reliance by most South African law teachers on the dominant paradigm of traditional (or black-letter) legal education. Following the writings of Duncan Kennedy and Michel Foucault, this paradigm of traditional education is shown as being not only pedagogically ineffective but also politically corrupt and ideologically conservative. While failing to impart critical thinking skills to law students, it also works to co-opt them into the service of hierarchy and hegemony and functions to discipline them into docility, thereby legitimating the conservative legal culture. As an alternative, the author proposes the turn towards a more critical, engaged approach to legal education, drawing in particular from critical legal studies ("CLS") and from the critical liberatory pedagogy of Paulo Freire and bell hooks. By following a more critical direction, and by enabling students to think critically about law, to question and to transgress, legal education can serve as a practice of freedom. The broad aim of the article then is to put forward a set of ideas contemplating a legal education that is otherwise, that brings something else into the law classroom such that it might serve as the meeting point between law and justice.