A decolonial legal method
Author: Tshepo Bogosi Mosaka
Affiliations: Lecturer, Department of Public Law, University of Cape Town
Source: South African Law Journal, Volume 138 Issue 4, p. 761-798
A survey of the burgeoning body of scholarship on decolonising education in South Africa leaves one with the impression that this is an area of scholarship that is yet to mature, particularly due to the rarity with which its scholars engage in self-conscious reflections on their methods. The article addresses this in two ways. The second part of the article theorises generally about an appropriate method of decolonising the discipline of law. The proposed method rests on four conditions: (1) standpoint (with whom is one in conversation in broader debates about decolonial education?); (2) historicity (what particular aspects of a specified branch of law were inherited from colonial Europe and with which other African countries does South Africa have this in common?); (3) evaluative/critical (what is problematic about the identified colonial inheritances for the present epoch?); (4) remedial (what changes are proposed towards the development of the branch of law concerned, and the discipline as a whole?). The third part then proceeds to illustrate how to apply this method towards decolonising evidence scholarship in Africa. Ultimately, it is argued that the political legitimacy of African criminal process remains endangered by the colonial inheritances that currently are embedded in the law of evidence.