Of 'deconstruction' and 'destruction' — why critical legal theory cannot be the cornerstone of the LLB curriculum

Abstract

My purpose is to shine a light on recent South African critical theory scholarship arguing for critical legal theory to become the 'substantive pillar' of legal education. However, the radical political agenda of the South African critical theorists is only superficially directed at the LLB curriculum. Their true ambition is revolution, not reform. They not only aim at the 'deconstruction' of the South African legal system, but at its 'destruction'. The central themes of their critical theory are that law is an instrument of social, economic and political domination, that legal outcomes are the arbitrary whim or political bias of decision makers, and that 'rights' — especially fundamental human rights — are impotent to address social problems. The South African critical theorists seek to excise the traditional conception of 'the law' from the LLB curriculum, and to recast law as a humanities discipline. However, their proposal for a 'critical' LLB curriculum suffers from two insurmountable flaws, namely (i) the explicit rationalisation of negative critique as the appropriate route in legal education, and the consequent failure to develop — or even portend a blueprint of — a positive programme for the integration of legal theory and social movement; and (ii) their critique of fundamental human rights, which would guarantee that vulnerable groups would lose all the gains that they have made in a liberal constitutional democracy, and, consequently, that these groups would be at exponentially greater risk of prejudice. Most significantly for the future of the university law school, the South African critical theorists' message is exceptionally damaging to law students.