Decolonialisation of South African family law in light of transformative constitutionalism: a practical approach for generation Z

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The call to decolonialise the tertiary curriculum, coupled with the complaints regarding LLB graduates, place law teachers at a crossroad. It is apparent that change is not merely desirable, but urgent. This article aims to introduce and contextualise the current conceptions of and approaches to the decolonialisation of family law in South Africa pertaining to the innovation and restructuring of the current substance of family law, by focusing on the pedagogical approaches that can facilitate this process – specifically the use of technology.

The article provides a cursory exposition of the concept of decolonialisation and its impact on both lecturers and students. The impact of the Constitution on transformative constitutionalism is underlined as a catalyst for the development of graduate skills with which to address social and societal problems with substantive equality as the ultimate goal, seeing that not much has changed at the universities and law faculties since 1994 – especially not for black students.

The decolonialisation debate as contextualised in this article is considered to part of the larger debate surrounding critical legal theory. The exact nature of decolonialisation and the opinions surrounding it can, however, be placed on a broad spectrum, the core of which is that decolonialisation is an uncomfortable and infinitely complex process which extends far beyond merely superficially including seemingly appropriate articles written by black academics.

The current LLB, is chiefly concerned, as it was in the past, with current legal rules and the interpretation thereof which are technical and unyieldingly positivistic. This is at odds with the ideal of placing the emphasis on a wider normative and critical pedagogy in order to more clearly reflect what the law should be – a vehicle to serve the community as a whole.

The aim of this article is not to define decolonialisation, nor is it to merely restate the current position with regard to the decolonialisation of the LLB curriculum. The theory regarding critical legal studies and decolonialisation as a process flowing from this debate merely forms the background of a discussion that can be followed in order to innovate current teaching of family law at South African universities, bring it in line with the student needs and make it relevant to the students attending law classes.

This incentive requires law teachers to investigate the different and differing roles of the stakeholders with regard to the implementation of an effective decolonialised curriculum. This does not mean that we are to naively disregard current knowledge, but aims to suggest that we build on the current knowledge and equip law students with the necessary tools to evaluate the current knowledge in the light of the relationship underlying power, knowledge and education so that we may keep what is ethical, necessary and useful and not be constrained by a system of thought that discounts the value and contribution of non-Western knowledge. The theoretical foundation within the context of transformative constitutionalism is used to structure the re-evaluation of teaching methodologies, strategies and philosophies by capitalising on the inherent transformative nature and purpose of the Constitution.

It is important that the aforementioned process empowers students not only to be instrumental in the decolonialising process, but also to be cognisant of the fact that they must strive to become not only successful jurists, but also ethically responsible ones. They can no longer be mere technicians, but must receive a wider education that can serve them in the wide array of careers available to law graduates.

The first requirement for such a process is for the students to understand that the South African legal system is one legal system which includes common law and customary law which are formed by the Constitution. Secondly, the norms and values underlying the law, as well as the judicial responses to them, should be addressed. Finally, public legal education should be responsive to the economy, the legal profession and the community as a whole. It is logical to infer, then, that the process of decolonialisation is not limited only to the content of the subject, but also includes the manner in which it is taught.

The article proposes that the vehicle for this fundamental re-evaluation of the teaching of family law is rooted in the nature of the students in law schools and their needs and preferences regarding learning and education. This can be used to make the content of the subject relevant and to seize the opportunity to utilise digital technology in the instruction of, for example, family law, a fundamental law subject, to facilitate this process.

The current method of instruction for family law, as for most law subjects, is the use of lectures presented by lecturers, and tutorials or facilitation sessions presented by senior students. Family law is one of the core subjects of the law curriculum, usually taken in the first or second year, and students take this subject either on its own or as part of a larger subject which includes the law of persons. A cursory overview of the subject contents from some of the textbooks and syllabi indicates that the subject is still reminiscent of the Roman-Dutch approach, meaning that it focuses on engagements, marriages, divorces and the rights of children. In certain instances references are made to civil partnerships (also same-sex ones) and religious and customary marriages, although religious and customary marriages may also be addressed in a different subject altogether called legal pluralism, indigenous law or African law.

The current approaches to the instruction of family law necessitate the following: that the Constitution and the Bill of Rights be used to determine the reigning norms and values of the community and that a deviation from this guideline should be debated in the context of religion and culture; secondly, that the historical overview that initiates the instruction of the subject be done in a manner that is inclusive of South Africa's whole legal tradition; thirdly, that the focus of the module – family – be placed in the South African context and that it be redefined to include all families and family structures; fourthly, that African customary law be included as a core source of the law in order to ensure that the students have an understanding of the social realities of the world outside of the classroom.

Undertaking such a dramatic reconceptualisation of one of the core modules of the LLB curriculum is not an easy task. It should be done with care and due consideration of the student who will be at the receiving end. It should also include the introduction of digital technology in the teaching space and the learning process as a way to support the process of decolonialisation and bridge the gap between not only the lecturers and the students, but also between the classroom and the profession.

The article does not propose, or impose, a set of strict and rigid guidelines that must be used to achieve the stated goals, but rather provides options and possibilities to educators that can facilitate and stimulate the process. Law teachers have the responsibility to ensure that their students receive the education they need – a holistic approach is suggested. The theory of "generations" is used as a tool to "meet the students where they are" and bridge the possible barriers in learning that may be present in the law classroom. This theory can be used to determine what common qualities and attitudes are shared by the students, and by placing it in the African context, we can better determine how to provide sensible and effective education to our students.

Some of these shared qualities and attitudes include: that they are digitally cognisant and are comfortable with digital technology in the classroom; that they are collaborative and require constant feedback, validation and positive reinforcement; and that they are global citizens. The lecturers, at least some of whom are likely to be part of a different generation, can then attempt to adapt their teaching practices and motivate their students better. This, in conjunction with the introduction of the 21st-century skills in legal education, should lead to positive outcomes and self-directed learning and can be great steps in changing the face of legal education.

The article concludes with a discussion of project-based learning as an intervention and a possible vehicle for the envisaged accelerated implementation of a decolonialised curriculum. A practical example of such an approach is to structure the students' learning as project-based learning. The project should be properly designed with due consideration of the design requirements of such a project. The central focus could be to facilitate dialogue between the students on themes related to family law. The mere act of communicating with one another can promote their understanding of the theory and provide an environment of reflective learning. In addition to changing the way in which a subject is presented, the assessment methods should also be brought into line with the transformed educational strategies. The new legal culture will have to include assessment methods that reflect the transformed curriculum. This may include peer assessment, reflective journals, or the compiling of a portfolio.

The intended result of the process of decolonialising the family law curriculum is to produce students who can use these skills to solve social problems and promote substantive equality. Innovative and interactive projects using digital technology should be used to facilitate active learning.

Keywords: curriculum; decolonialisation; family law; generation Z; LLB qualification standards; skills; student readiness; technology; transformative constitutionalism

Lees die volledige artikel in Afrikaans: Dekolonialisering van die Suid-Afrikaanse familiereg in die lig van transformasiegerigte konstitusionalisme: ’n praktiese benadering vir generasie Z

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