Kazirr Gender, Law and Justice. It has been observed that equality, in its formal or substantive form, will remain a distant dream owing to spiraling triple social challenges of unemployment, poverty and inequalities. Thus, a theory of equality must find a way of integrating private resources and political power. It is for this reason that South Africa boost global recognition as a human rights respecting state. South African Journal of Science, Vol. Thus, Aristotle subscribes more to formal equality.
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It makes valid points throughout on matters such as a lack of teaching critical thinking skills, but hidden in its hundred pages is a concerning potential threat to academic freedom. This is far from the only problem in the CHE report. Clearly, the only real diversity that is non-arbitrary, that is, diversity of ideas, is rejected, in favour of ideological conformity to the notion of transformative constitutionalism, while the irrelevant diversity of race is placed front and centre.
This includes enforcement of these egalitarian values within the private sector: The workplace and the family. UFS had had Afrikaans as a medium of instruction since its founding, had a major component of its student body being Afrikaans speakers, and probably had available faculty or could easily acquire faculty willing and able to teach in Afrikaans.
By every reasonable textual interpretation of this provision of the Constitution, it was and is reasonably practicable for UFS to retain Afrikaans as a major medium of instruction. The Chief Justice, instead, decided to read something into the Constitution which had not previously been there.
In other words, the transformative constitutionalist in Mogoeng and the Constitutional Court bench did not interpret the Constitution textually — i. Transformative constitutionalism is also the basis for why repulsive individuals like Penny Sparrow and Vicki Momberg get impoverished and imprisoned by court orders for uttering hateful words that do not amount to incitement to cause harm, yet people like Andile Mngxitama and Julius Malema, who have explicitly and implicitly called for criminal violence, often on the basis of race, get nothing more than a slap on the wrist.
This is to say that transformative constitutionalism is not a run-of-the-mill theory of jurisprudence, but is an ideology with significant implications for the political, social, and economic spheres in South Africa.
It is an ideology with specific, substantive content, and this content happens to be situated neatly on the left of the political spectrum. Transformative constitutionalism is inherently anti- market, anti-privacy, and, in many circumstances, anti-free expression. And this is fair enough. A healthy constitutional discourse requires a multiplicity of ideological and theoretical points of view to be put forward, debated, tried, and tested; as is done in the United States with the theories of living constitutionalism and originalism, among others.
The problem is that the CHE is attempting to artificially declare transformative constitutionalism to be the winner of the battle of ideas, and force law faculty and students to toe its ideological line. How, then, can the CHE seek to enforce a singular theory upon South African law faculties when the progenitor of the theory himself acknowledges that there are or could be other legitimate theories?
Academic freedom means staff, faculty, and students, whether under- or post-graduate, are allowed to come to their own conclusions after being presented with a wide variety of alternative points of view.
This was already neglected during my stint at law school between and , when transformative constitutionalism dominated the course on legal philosophy. The liberal school of jurisprudence was neglected to the extent that John Locke — the father of constitutionalism — was mentioned as an aside in only one, short, paper.
Now the CHE seeks to formalise this unacceptable state of affairs. These professors and students are our future judges, advocates, presidents and parliamentarians, after all. By enforcing this one theoretical perspective on the Constitution, the CHE is laying the foundation for a State ideology, not too far removed from communism in the erstwhile Soviet Union, or Apartheid in the years before in South Africa.
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