The research of the Chair focuses on the actual workings of customary law as a normative system in a legally pluralistic context, and on how customary law interacts with other components of the legal system, including common law and human rights.
This research focus can be seen as a natural progression to the next stage of the Chair as initially conceived. The focus shifts the research to an investigation into customary law as a normative system. The two-fold motivations for this focus are:
The research on the actual workings of customary law is of critical importance at this stage of the development of customary law and the country’s new legal system.
The need to orientate the research of the Chair towards developments in the field. Increasingly, there is a move away from studying customary law in terms of a dichotomy between legal norms of European extract and norms of indigenous systems. This is in recognition of empirical observations to the effect that, in pluralistic legal systems ‘actors’ or users of the various components of the legal system ‘mix’ them. In these circumstances, it seems that research on customary law as a normative system should focus on the actual workings of this system of law in relation to other components of the legal system.
The Chair’s research is justified by the following considerations:
Customary law plays a very important role in the regulation of people’s lives in South Africa and in Africa generally, especially in the family, gender relations, traditional leadership and land matters.
The increasing recognition of customary law by African national constitutions, and the emerging constitutional and other jurisprudence on this subject, especially in South Africa.
The fact that little is known of this system of law, in terms of its current (living) form, working and relationship to other components of the legal system – i.e. human rights, common law, and religious systems of personal law.
The proposed research will pursue selected topics out of four related themes. These themes represent some of the major concerns in the South African legal system today.
Setting of legal norms by non-state actors (non-state law-making)
This theme focuses on the setting of legal norms by non-state actors, which occurs within the perspective of legal pluralism in a deep or strong sense. The theme concerns the investigation of the making of living customary law by non-state ‘actors’, or the evolvement of living customary law.
Interfaces/interactions with other components of the legal system
The focus here is on interfaces/interactions between customary law and the common law, and between customary law and human rights. The underlying assumption of this theme is that after 15 years of the constitutional recognition of customary law and entrenchment of legal pluralism, there is already a considerable degree of interaction between customary law and other systems of law – i.e. common law, religious systems and the Constitution and its Bill of Rights
Ascertainment of customary law
This theme focuses on how customary law is ascertained by the courts. The challenges of ascertaining customary law at different levels of the court system is a major concern of this theme.
Living customary law in the courts
This theme will investigate various aspects of living customary law, such as its content, in specific areas of law.
As far as possible the Chair will conduct its research in collaboration with interested colleagues in legal anthropology and other relevant fields.