Re-introducing African Customary Law to the South African Legal System
Bibliographic Data
| ID | 4786158 |
|---|---|
| Authors | T Bennett (0000-0001-7210-2151), T W Bennett (University of Cape Town, corresponding author) |
| Year | 2009 |
| Volume | 57 |
| Issue | 1 |
| Pages | 1-32 |
| Publication date | 2009-01-01 |
| Peer Reviewed | Yes |
| Open Access | No |
| Type | ARTICLE |
| Venue | The American Journal of Comparative Law (JOURNAL) |
| Journal identifiers | ISSN: 0002-919X • E-ISSN: 2326-9197 |
| Publisher | Oxford University Press (OUP) (PUBLISHER) |
| DOI | 10.5131/ajcl.2008.0001 |
| OpenAlex | W2080714980 |
| Language | EN |
| Citations received | 13 |
A fully justiciable Bill of Rights in South Africa’s new constitution heralded fundamental change for all the laws inherited from the previous regime. African customary law was a particular target, since many of its rules are imbued with a patriarchal tradition, which is in direct conflict with the principle of gender equality. In a series of remarkable cases that ensued in the South African High Court and appeal courts, the question whether customary law in fact violated the Bill of Rights came to depend on the version of the law in issue: the “official” law that had been captured in codes, textbooks, and precedents was regarded as inauthentic and tainted by the apartheid regime, whereas the law currently being lived by its subjects was regarded as the true customary law and thus more likely to be in line with fundamental human rights. Acceptance of the latter involved complex issues of proof, compliance with the Constitution, and the endorsement of culture and tradition. This Article is concerned with the manner in which the courts transformed the “living laws” into a new brand of official law
Appeal · Common law · Constitution · Customary international law · Human rights · International law · Political science · Public international law · Sociology · Sources of law · Comparative and International Law Studies · Law · Law in Society and Culture · Legal Issues in South Africa
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African Customary Law and Common Law in South Africa
Rival jurisdictions on a resource frontier
The concept of living customary law
The ascertainment of living customary law
A butterfly that thinks itself a bird
The constitutionality of section 7(1) of the Recognition of Customary Marriages Act
The Constitutionalization of Indigenous Group Rights, Traditional Political Institutions, and Customary Law
Sex, gender and marriage in the timber plantations of KwaZulu-Natal, South Africa
| Unique citing works | 13 |
|---|---|
| Citations per year | 0,76 |
| Citation span | 2009 - 2026 (18) |
| Citation velocity | current |
| Highly cited | No |
| Citation types | Neutral: 11 |