[2] The 1993 Constitution did not provide for direct recognition of customary law. Instead, it provided in article 181, paragraph 1, for the recognition of a “traditional authority respecting a system of indigenous law” and in article 181, paragraph 2, that “the law shall be regulated by law”. The final Constitution does not refer to common law and indigenous law in the same way, as did the Transitional Constitution, but it also recognizes that the institution of traditional leadership follows a “common law system” and obliges the courts to apply customary law, albeit subject to the Constitution and other laws. [4] It is generally accepted that the authoritative language of the final Constitution has elevated customary law to the same rank as the common law,[5] and although it is not always easy to treat it equally, the courts have tried to do so. So far, three approaches can be identified. First, in Bhe v Magistrate, Khayelitsha,[6] the Constitutional Court refused to develop the usual rule of male primogeniture to allow women to inherit and applied the common law of legal succession, which treats beneficiaries equally in its place. While this approach can be criticized, it is a good example of cases where common inheritance law and customary inheritance law have been merged to achieve better outcomes for women and children other than the firstborn. [7] The idea that the binding authority of customary law emanates from society seems inconsistent with the idea of precedent as a source of customary law. However, given the fact that society takes its customary disputes to court, as this example and many others show, it can be concluded that case law is indeed regarded as the authoritative source of the common law, at least by litigants. It is also true that the fact that a part of the Community which can afford to resort to litigation to the point of setting precedents does not guarantee that the rest of the Community, whose customary law has been the subject of a decision, would feel bound by the decision which sets the precedent. Other dangers also lurk in the background. It is possible that this source of law (case law) is biased in favor of those who can afford to litigate, creating the possibility for wealthy members of communities (indirectly through litigation) to set the law for the rest of the community. While this is a real danger, there are many examples where poor litigants have been able to change the direction of the common law with the support of non-profit organizations such as the Women`s Legal Centre, which provides free legal advice and support, particularly to women living under a common law system.

[79] Therefore, this risk should not preclude the courts from participating, where appropriate, in the establishment of customary rules. [60] Humbey et al. Introduction to Law 123. Some scholars argue that the point of law must be found in the universal principles of morality and justice. This is called the “theory of natural law.” There are many variations of this theory, but it essentially asserts that the law is “necessarily a rational standard of behaviour”; It does not depend on human intervention, but exists because it is natural, universal and a necessary consequence of human nature. Traditionally, a stark contrast is drawn between natural law and legal positivism. Unlike natural law, legal positivism views law as a “socially recognized norm.” See in general Crowe 2016 Philosophy Compass 91-101 for a discussion of theories of natural law. At common law, the judge often acts as an arbitrator because two lawyers represent their side of the story. Typically, the judge and sometimes a jury listen to both sides to reach a conclusion on the case. Scientific discourse and judicial decisions on customary law have seen an unprecedented upsurge following constitutional recognition in South Africa`s first democratic constitution, and this trend continues. The Transitional Constitution[1] recognized indigenous law[2] in 1994 and secured it a prominent place in the final constitution by promising that “igenigen law, like common law, will be recognized and enforced by the courts.” [3] The intention could not have been clearer: common law and Aboriginal law should now be treated equally. [27] Humbey et al.

Introduction to Law 2. Donlan and Urscheler Concepts of Law (2016) 1-18 deals with the effect of context across time and space on the meaning of law. They propose a multidisciplinary approach to understanding the law that does not impose Western norms, but recognizes that there is a diversity of perspectives that do not always involve state institutions. Such an approach would include cultural perspectives such as customary law. [35] Griffiths 1986 J Legal Plur 1, 13-17. It distinguishes between deep and weak legal pluralism. According to him, deep legal pluralism is based on the ideology of legal centralism. In other words, there must be recognition of the state. South African customary law and common law are examples of recognized legal systems. Low legal pluralism, on the other hand, recognizes that there are different or contradictory norms and can exert some authority over people`s social lives.

The State may even play a subordinate role to regulation implemented by an informal authority. Islamic law is an example of such a system, which is not recognized, but is nevertheless followed by the followers of Islam. (b) may develop common law rules to restrict the law, provided that the restriction is consistent with section 36, paragraph 1. [12] [50] As noted above, customary law is essentially the unwritten customs of traditional African communities, but it has not remained intact over the years.