Of legal pluralism and secular constitutional centralism: Assessing the development and interpretation of living law through the lens of the Constitution

Abstract

South Africa is a multicultural society with various socio-legal systems, making it a country based on legal pluralism. Such systems take the form of customary law and cultural-religious practices. “Customary law” refers to customs and usages particular to the indigenous communities of South Africa, while “cultural-religious practices” refers to the rest of these socio-legal systems, for example Islamic law. This article examines the development of living law in the form of customary law and cultural-religious practices in South Africa through the lens of the Constitution. Although the two, customary law and cultural-religious practices, are distinct from each other, they regulate the lives of people socio-culturally. The article argues that the Constitution has become the central institution through which customary law and cultural-religious practices are interpreted, developed, and applied. In the case of customary law, the test is whether its different rules are constitutionally valid, failing which the courts will either develop it or strike it down. Where a cultural-religious practice has not been accommodated, an inquiry is conducted as to why this is so. This involves applying the test for discrimination to determine whether there are justifiable grounds for not accommodating the cultural-religious practice within the law. This article considers various instances where the development and interpretation of customary law and cultural-religious practices has been heavily dependent on the Constitution within the courts. It describes this phenomenon of subjecting of customary law and cultural-religious practices to the Constitution as “secular constitutional centralism”. The latter is an inclusionary method that seeks to incorporate various socio-legal, cultural, or religious systems under the ambit of the Constitution. In this instance the Constitution plays a central role in regulating people’s sociocultural identities. Thus, what appears to be a society based on legal pluralism is one in which its various socio-legal systems are centralised around the Constitution.