Deep Legal Pluralism in South Africa: Judicial Accommodation of Non-State Law
Journal of Legal Pluralism and Unofficial Law, Vol. 60, pp. 143-177, 2010
36 Pages Posted: 14 Mar 2011
Date Written: December 30, 2010
There can be no doubt that the expression ‘rainbow nation’ was, and still is, a spoken metaphor for South African unity, intended to unify the greatly divided nation where strict divisions between racial groups existed. Nevertheless, apartheid may have been abolished but the fibre of the South African society remains splintered along cultural and religious lines. The legal system of South Africa still symbolises this divide. For example, members of cultural and religious communities (previously forced to live together as a result of apartheid) observe certain aspects of their own laws which are generally not recognised by our law. This phenomenon is known as ‘deep legal pluralism’. The legal fraternity is faced with the complexities of legal pluralism on a daily basis. The Constitution provides that the state may pass legislation recognising systems of personal and family law consistent with and subject to other provisions of the Constitution. However, there is no responsibility on the government to incorporate cultural or religious laws into state law, and so far the state has not done so. The judiciary has been less passive in affording individuals belonging to religious or cultural groups protection where needed. This presentation discusses the change in judicial policy regarding aspects of religious family law and the contribution of the judiciary to the emergence of deep legal pluralism in South Africa. The emphasis is on jurisprudence dealing with religious family laws, and more particular Muslim family law, which reached a peak in Hassam v. Jacobs 2009 (5) SA 572 (CC). The jurisprudence demonstrates that the judiciaries’ accommodation of religious and cultural diversity manifests a celebration of difference which is a quite novel approach that protects the rights of cultural and religious communities.
Keywords: Cultural Diversity, Religious Diversity, Legal Pluralism, Constitutional Adjudication
JEL Classification: K4
Suggested Citation: Suggested Citation