THE SHAPE AND CONTENT OF POST-APARTHEID AFRICAN LAW: ACADEMIC SCHOLARS IN CONVERSATION

Abstract

The interim Constitution of 1994 unleashed a heated debate about the role of African customary law as part of the South African legal system. The point of departure was the extent to which the Western-oriented liberal Bill of Rights could be applied without sacrificing the system’s normative values. During the constitutional negotiations it was unsuccessfully proposed that African customary law be insulated from the application of the Constitution in order to preserve the legal system’s indigenous character. The debate turned on two academic positions, one of which was a pessimistic liberal view that sought to reject African customary law, whilst the other was against the imposition of the Western value system on African traditions. Some academics asserted that mutual influence of both systems is possible, since progressive development of African law is necessary.