A NOTE TO THE LEGAL PROFESSION IN SOUTH AFRICA

This document is being sent you in the spirit of sharing a concern for an acceptable world
view and written from a position of considerable anxiety regarding some recent maneuvers
and legal oversights.

THE SOUTH AFRICAN LEGAL CURRICULUM UNDERGOING REPAIR

by Paul Henrickson, Ph.D. tm. ©

2010

It was by chance that I came across an announcement on the web regarding members of
the South African Legal profession’s interest in reorganizing the curriculm which leads, it
is hoped, to a more efficient and properly functioning profession.
It is, of course, somewhat reassuring at the outset to know that a profession may be aware
of its faults, their lacunae of awareness. I do not know out of what context this concern
arises nor do I believe, at this point ,that my own experience with the legal practicioners
would have any meaningful bearing on South Africa’s present reorganizational concerns.
It is my present belief that these concerns have been brought about as a result of a growing
consciousness between what exists, at present, as the conventional practices coming into
some conceptual confrontation with heretofore unused awarenesses. It is always so, it
seems.
My interest was sparked by the description of the need as some have seen it, to create as
rapidily as possible graduates from a curriculm who could function appropriately. In
addition to the surprise enveloping the suggestion that the legal environment, at this time,
in South Africa was unacceptable. I, relatively, corrected this reaction when I recalled the
practices of this profession in Santa Fe, New Mexico (USA) and, even more unbelievable, in
the nation of Malta.
The bold italics above specifically identify an attitude in regard to human development that
I find of great concern.Some enriching factors need consideration. First among them may
be the following: I.Q. measurements, for the most part, employ pre-ordained goals as a
measure, not goals that had never before been conceived, or, if conceived, not conceived
along Robert Frost’s “Yellow Wood” pathway but conceived in a fashion consistent with
conventional wisdom….a process which gets you no where.
An I.Q. score beyond 120 seems not to contribute to judgments of creativity, creative minds
have a marked interest in exploring the environmnent surrounding a question that in
arriving at the answer they feel compelled to explore. In the so doing the discoveries made
in these lateral mental travels often change the original question to one more pertinent.
Consequently the creative mind will arrive at the answer later but with an enriched
response, leaving behind those other intelligences still mired in, and confined by, the
original hypothetical parameters
When it occurred to me that in both those places (the USA and Malta) the ideal of the legal
profession was clearly flavored by undeniably ethnic considerations and psychological
responses to social histories my concerns became less perplexing. I had, at least, arrived at
some intellectual platform from which to base my thinking.
One of the first troublesome consideratons was rooted in the question as to why should
there be differences in interpretation which seemed to be based on differences in ethnic
backgrounds when, from my initial point of view, the differences which arose between
parties, any two parties, were supposed, by the law, to be ironed out by the warm iron of
reason.
It does not take a great deal of retrospection to suppose that one’s actual experiences may
have the ability to color one’s interpretation of any future experiences. Once when I very
recently been allowed out of bed from a childhood disease, I believe it was measels, my
mother took me to a public celebration, the Forth of July perhaps, and she, leading the way
through the crowd. passed in front of the raised gubernatorial dias of the then Governor
James Michael Curley and I, following my maternal connection, was prevented from
following by a royal guard’s punch in the stomach…the message, of course, was received:
mothers vote, kids do not and need to be taught to recognize authorityby not walking in
front of them.
Curly, however, may have been unusually concerned with what he considered protocol. It
was, I think, route 128 where his police escort and motorcade was speeding down the high
way, sirens blaring and one driver in front, a woman, obeying the regulations upon hearing
the sirens drove to the side of the road as it happened when one policeman on a motor cycle
did the same thing and in hitting her car lost his life. The driver of the car was charged.
This line of thinking, by the way, is not too different from the call being made from South
Africa for a more inclusive curriculum. In general, I certainly do not disagree with that,
but I do question the extent of the broadening of this curriculum and its direction about
which, at this time, I know very little, but would urge that it, the broadening, be there to a

signficant extent. The respect for authority, however, appears to have been for
the Curley clan, a one-way street as the following anecdotes seem to suggest: Curley once
appeared at the Harvard University commencement ceremony in 1935 in his role as
Governor wearing silk stockings, knee britches, a powdered wig, and a three-cornered hat
with flowing plume. When University marshals objected to his costume, the story goes,
Curley whipped out a copy of the Statutes of the Massachusetts Bay Colony which
prescribed proper dress for the occasion and claimed that he was the only person at the
ceremony properly dressed. It might ask whether Curley was aware of the difference
between a colony and a state and what was the route he took to justify appearing in a
royalist costume at a function in a republican state. However, I do undertand his thinking
and this behavior was a fairly elaborate put down intended to discredit Harvard.
One of his daughters, Mary, together with some drinking companions walked in the early
morning hours into the Stoneham zoo and one brave male companion is said to have lit up
a newspaper torch and waved it in the face of a once-sleeping bear who, understandable
enough made a swing at the torch and pulled off the man’s arm.
Curley had an unusually tragic personal life. He outlived his first wife Mary Emelda (née Herlihy)
who died in 1930 after a long battle with cancer, and seven of his nine children. Twin sons John and
Joseph died in infancy. Daughter Dorothea died of pneumonia as a teenager. His namesake, James
Jr., who was being groomed as Curley's political successor, died at 21 following an operation to
remove a gallstone. Son Paul, who had a drinking problem, died while Curley ran for mayor in
1945. His remaining daughter Mary died of a stroke in February, 1950 and when her brother Leo
was called to the scene he became so distraught that he, too, suffered a cerebral hemorrhage and
died the same day, at age 34. Two remaining sons George (1919-1983) and Francis X. (1923-1992)
outlived Curley.
Now, on the more academic side we have Teresa Amabile of The
Harvard Business School through the agency of one Bill
Breen of FastCompany.com., announced that she has
discovered there to be six myths about creativity. These
are (1) creativity comes from creative types.(2) money is
a motivator for creativity, (3) time pressures fuel
creativity, (4) fear forces creative breakthroughs,
(5)competition is better than collaboration; and (6)
Downsizing the work community helps creativity.

#1 is not a myth. What might be a myth is that all people are creative to one extent or another.This
is a belief that I understand may come from the natural desire to be “as good as anyone else” which
is a mind-set seemingly characteristic of those who have not yet accepted the notion that the
democratic ideal does not logically extend to all facets of human behavior.
I will add this, however, as a moderating thought, that if creative behavior is a common factor
among the homospaien the revelation of there being statistical differences may simply be a factor of
the time the testing took place. In other words, those whose scores do not place them among the
creative subjects may simply not have been able to withstand the peer pessures to conform. This, of
course, sugegests another approach to analyzing creative people, that is, to test those low on the
measure to see whether they might exceed those identified as creative in the area of susceptability to
conforming repression.
#2 probably is a myth, #3 not for me, #4 meaning of “fear” (shades of Wittgenstein). Abstracted
fear might motivate, threats designed to induce fear would be a turn off, #5 is mistated: both
inhibit, #6 both doubtful as stated and untrue with the implication that creativity takes place within
a community, but the commuity does help creative solutions in bringing and varied stat to the table,
but th creative action is not a community effort. The total score is a rather miserable onr showing
with one out of 6, a measly 12% correct. However, we might forgive Ms. Amabile considering that a
highly contributing characteristic in most business operations is hype, or, “what a great guy I
am!”.
Persistent throughout this presentation of 6 myths which are even less convincing than De Bono’s
six hats, is the suggestion that creativity takes place within a community. It may appear that way to
the public at large and even to some researchers as a factor of the method of structuring the study.
Data from one subject is included with data from many and as a consequence the unusual one
singled out as creative is seen against a background of the many..not unlike the photo of 20th
century couples seen against a backdrop of an 18th century landscape. In this regard the following
dramatization featuring Tom Edison and Nicolai Tesla underscores some basic concepts regarding
the appearance of the creative solution and the function of the brain.
http://www.youtube.com/watch?v=um6bxoFUSO8 I like this video scene very much for it
clearly demonstrates the difference between the rather pedestrian algorythmic approach to
arriving at where you want employed by Edison and the approach that more fully
understands one of the characteristics of the human brain which is to, at times, more easily
solve problems through the unconscious as opposed to the more conscious application of
what some call “thought”,… and the second reason is they show a dog of my chosen breed.
The scene also demonstrates the approach some have held regarding the application of civil
authority over divergent behavior, rules over inspiration, law over normal (for some)
human behavior…and it is here that the efforts of the South Africans becomes highlghted.
I find the odds against a quality education being developed very high indeed if the
measures of that “quality” are detemined by the level of on site practices used by one
Eugenio Romero of Santa Fe, New Mexico and another by Mario Scerri of Victoria, Gozo.
The first lied from the bench about his jurisdiction and the second accepted a table of
random numbers as telephone numbers. Both judges semed to have grown accutomed to
making decisions on the basis of their, or their society’s, prejudices.
From the above brief outline of players in a drama it would seem we have those who would
rule by definition as it is written, those who would rule by social custom which is peer
pressure, those who would distort objective research to have findings better fit
conventional desires. In short this array of mindsets are prepared to outflank the
innocently divergent thinker who is merely following a line of thought, a path of
investigation and lacking any malicious intent.
In all fairness it should be pointed out that there are minds which take established
behavioral criteria and try to mischievously mold that to fit an altered pattern for personal
gain or just for fun. They even do so creatively at times, but to this potential I would offer
the suggestion that the rules regarding moral behavior apply to all groups ….one does not
intentionally harm another. Were I to make a judgment as to where intentional harm is
more likely to be found it would be among the non-creative group where sins against
humanity are ccoperatively covered up.
In short, any curriculum adopted in South Africa which fails to take into account what has
been identified as the natural (sic?) characteristic of creative minds will, in the long run, be
sponsoring the mold of civil disorder. If the searching mind, which is, I believe, normal for
most individuals, is prohibited either by social custom or legal satutes from investigating
who or what it is in a non-detrimental way it will find expression in personally and socially
destructive ways…society creats its criminals.
The laws and the judgements of human behavior in their light must be divinely
humane….GOOD LUCK!!!