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Research Portal

Faculty of Law | University of the Western Cape

Research Portal

Faculty of Law | University of the Western Cape

CENTRE FOR LEGAL INTEGRATION IN AFRICA (CLIA)

Call for Papers

Published: 14 June 2021

CALL FOR ABSTRACTS ON

  1. The future of legal orders in Africa
  2. The future of personal laws in South Africa and beyond: Reconciling indigenous laws within a constitutional order

The Centre for Legal Integration in Africa at the University of the Western Cape (CLIA) was established to serve as “a confluence of interdisciplinary research on the interaction of legal orders in sub-Saharan Africa.” CLIA invites abstracts for its inaugural symposium on 22 October 2021. The theme of the symposium is ‘The future of legal orders in Africa.’ The keynote will be delivered by Brian Tamanaha, the John S. Lehmann University Professor at Washington University in St. Louis.

Context of the call
In response to unparalleled socio-economic changes emerging from the fourth industrial revolution, South Africa is undertaking law reforms to harmonise its indigenous laws with the values in its constitutional bill of rights. These reforms stoke longstanding controversy over the status of customary law in the formal legal system. While traditionalists use cultural relativism to defend indigenous norms, change agents prioritise constitutional values to champion law reform. The jurisprudence of cultural contestations shows that judges use constitutional values to invalidate indigenous practices that they find offensive to human rights. Significantly, these values are successors of European colonial standards of equity, fairness, and natural justice, which are known in many parts of Africa as the ‘repugnancy test.’ Oftentimes, neither judges nor legislators attempt to address the dissonance between the communal origins of indigenous norms and the individualistic modern settings in which these norms are observed. Indigenous norms emerged in close-knit agrarian societies, where the welfare of family members was paramount. Since income was produced jointly by the family through work parties, there was scant private property rights apart from items of adornment. The eldest male inherited property in a trustee-like manner for the benefit of the entire family. Married women were absorbed into the welfarist system of their husbands’ families, and, in the event of divorce, returned to their fathers’ welfarist system. This close-knit, agrarian setting was shattered by urbanisation, western education, individual income, migrant labour system, and other socioeconomic changes of colonial rule. Moreover, some African elders exploited these changes to strip customs of their foundational values of welfare. Consequently, women, girls, and younger males become prejudiced when customs are applied in individualistic, modern conditions without their foundational values. However, law reforms appear to be configuring indigenous norms into universalist images of the rights to dignity, equality, and non-discrimination. This is evident in the Single Marriage Bill, which seeks to integrate the regulation of all types of marriages and life partnerships in South Africa. It is also apparent in the Recognition of Customary Marriages Act of 1998, the Reform of Customary Law of Succession and Regulation of Related Matters Act of 2009, the (impugned) Communal Land Rights Act of 2004, the Traditional Leadership and Governance Framework Act of 2003, and judgements such as Bhe v Magistrate, Khayelitsha. So, how do legislative and judicial attitudes to indigenous laws portray the future of legal pluralism in the realm of personal laws?

Against the background of globalisation and legal history, contributions should explore the regulation of personal laws in Africa, and the broad significance of this regulation for the future of legal orders in postcolonial societies. Authors may explore dissonance in the origins of state and indigenous laws, comparative law reforms in other jurisdictions, and the legal philosophies favoured by judges. Findings from field research, interdisciplinary perspectives, and lessons from the legal history of the global North are particularly welcome.

Abstracts of 150-300 words should be sent to clia@uwc.ac.za. The extended deadline for submission is 28 June 2021.
The authors of selected abstracts will be invited in July 2021 to develop full papers for a volume to be submitted to Routledge in 2022. Authors who would like to submit full papers for the edited collection should copy adiala@uwc.ac.za and christa.rautenbach@nwu.ac.za in their submission.