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Periodical article Periodical article Leiden University catalogue Leiden University catalogue WorldCat catalogue WorldCat
Title:African customary law and common law in South Africa: reconciling contending legal systems
Author:Faris, John AndrewISNI
Year:2015
Periodical:International Journal of African Renaissance Studies (ISSN 1753-7274)
Volume:10
Issue:2
Pages:171-189
Language:English
Geographic term:South Africa
Subjects:legal systems
common law systems
Africanization
customary law
Link:https://doi.org/10.1080/18186874.2015.1107991
Abstract:The multicultural fabric of contemporary South African society is the result of the interaction between various and differing historical narratives, each with their own knowledge system, which led to the emergence of legal pluralism. The common law and African customary law are the major legal systems. A historical-political construction of the common law indicates that it has been influenced by the dominant political power. From an historical perspective, the contraction and expansion of the common law is due to its continuous deconstruction, whereby new knowledge is introduced into the existing system. Section 173 of the Constitution of 1996 provides that the judiciary is now responsible for developing the common law. However, under the new constitutional dispensation, the reconstruction of African customary law that is now on an equal footing with the common law indicates that it is being remodelled to fit the mould of Western legal values. In order to achieve jurisprudential parity between the two systems, the humanistic values of ubuntu should be adopted to infuse African equity into the common law. The realisation of this objective is possible if an interpretative paradigm is recognised as a means of ameliorating the legalistic consequences of the prevalent positivist paradigm. Within an African Renaissance model, adherence to an interpretative paradigm would advance restorative justice, and curriculum transformation along with research and development that resonate African/South African values. This would instil new vigour into the law and the Constitution that is seemingly becoming stulted due to its adherence to Western values. Bibliogr., notes, ref., sum. [Journal abstract]
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