The constitutional right to culture and the judicial development of indigenous law: a comparative analysis of cases

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Periodical article

Title:	The constitutional right to culture and the judicial development of indigenous law: a comparative analysis of cases
Authors:	Church, Joan Church, Jacqueline
Year:	2007
Periodical:	Anthropology Southern Africa
Volume:	30
Issue:	1
Pages:	56-64
Language:	English
Geographic term:	South Africa
Subjects:	customary law constitutional law conflict of laws jurisprudence
Abstract:	Although integral to the culture of indigenous peoples in South Africa, indigenous law was historically only recognized as a personal law subservient to the general law. This is no longer so. In the Constitution of the Republic of South Africa, 1996, its recognition is entrenched as an aspect of culture. Where there is conflict between the indigenous norm and the relevant human rights provision, courts have an obligation to develop the indigenous law, an obligation that should be exercised intelligently. Comparative analysis of recent judgements suggests that the courts' approach has generally been conservative. Merely striking down indigenous law as unconstitutional rather than developing it in terms of the constitutional imperative will lead to its eventual demise. A more progressive alternative would be to take congnizance of indigenous law as living law in order to determine the potential for judicial development. Bibliogr., notes, sum. [Journal abstract]