Modiri Colour of Law, Power and Knowledge

Critical race theory: important to understand post-apartheid jurisprudence and transformative

constitutionalism. The main proponent is Joel Modiri. Post apartheid jurisprudence must be
understood as a response to Apartheid. Its not just a system of racial segregation, its a system of
racial exploitation/state racism. It was a state ideology, and endorsed by the state. The danger that
this theory warns against is the illusion of thinking that having adopted the egalitarian Constitution,
that Apartheid has ended. The discrimination/oppression doesnt end just because rights are
embodied in a document. The effects of state racism endure long after the institutional/official
dismantling. Its effects/social manifestations endure.
Aspects on which to focus:
Central Thesis: legacy of racist oppression continues to persist in a post-apartheid South Africa. Thus,
one must consider the implications of life under apartheid particularly the reproduction and
maintenance of white supremacy/privilege,a s well as te systematic exclusion of black people
through direct and indirect forms of racial marginalism.
Two foundational principles of critical race theory:

Centrality of racism: racism is a normlaised and ingrained feature of the social order, appearing
covertly and in a nuanced way (indirect discrimination). Racism continues indirectly, and in overt
ways. Its not just one or the other: they co-exist. It must be assumed that the society remains racist.
White supremacy denotes a system in which whites maintain overwhelming power and control.
Racism is central because there is a systematic aspect as well as the individual attitudes and
thoughts. The systemic aspects arent erased just through the enactment of a constitution that
protects equality. It requires ongoing actions. It must be resisted: it cant be accepted as a natural
consequence. It denies that we are agents of history that can intervene and change the status quo.

The two principles together imply formal equality without substantive equality (redress) is a form of
erasure in that it pretends that racial discrimination and oppression is over.
Recent events show that racist practices engendered by law and legal institutions can exist long after
the abolishment of the laws or the replacement of the
1. Critique of law and legal institutiotns implicated in perpetuating racist ideology; expose the
racialized politics of law, law as an instrument of protecting tand maintaining existing power
relationships and social arrangements, call for legal thought to also take notice of subjective
experiences and material living conditions
2. Analsyis of the racialized patterns of wealth distribution, economic inequality and poverty
(how theyre enabled by law/tolerated by legal culture)
3. Crritical race Theory must be anti-capitalist and anti-racist, as on the whole, theres an
integral connection between black exploitation, capitalism and white supremacy (adoption
of liberal capitalism has meant that reparation and redress are constrained to what wont
interefere with market rationality or would discourage foreign investment). Because race
and class are interlinked, CRTs call for eradication of white supremacy
4. Engagement with dynamics of race and culture/identity in social and political life.