Religion, custom and gender: marital law reform in South Africa

2013 ◽  
Vol 9 (3) ◽  
pp. 386-410
Author(s):  
Catherine Albertyn
Keyword(s):  
South Africa ◽  
Customary Law ◽  
Law Reform ◽  
Private Regulation ◽  
Religious Law ◽  
Private Power ◽  
Legal Outcomes ◽  
And Gender ◽  
Legal Processes

AbstractThis article analyses the legal processes of recognising customary and religious (Muslim) marriages in South Africa's constitutional democracy. It argues that the best interpretation of the Constitution requires laws that address cross-cutting issues of recognition and redistribution relating to religion/culture and gender, and that the best way to achieve this is through a ‘pluralistic solidarity’ that enables dialogue on how to secure cultural and religious recognition without undermining the rights of women. It examines how the different processes of cultural/religious law reform in South Africa have become sites of struggle over the meaning of collective and individual identity, public/private power, citizenship and rights, and gender and democracy, and how particular sociopolitical conditions, ideological struggles and overarching conflicts and interests have shaped each process of law reform. Thus it distinguishes between the ideal and the possible, the normative and the strategic, in law reform. It notes the conditions under which the incomplete process of recognition of Muslim marriage law has seen a greater deference to religious norms and private regulation than customary law reform, which saw a greater institutionalisation of gender equality norms. The article concludes by emphasising the open-ended nature of legal processes, the possibilities of using courts to challenge ongoing inequalities in religion and custom, and the ever-present role of politics in legal outcomes.

Islamic Law and International Law

2019 ◽  
pp. 86-124
Author(s):  
Emilia Justyna Powell
Keyword(s):  
International Law ◽  
Analogical Reasoning ◽  
Islamic Law ◽  
Religious Affiliation ◽  
Customary Law ◽  
Legal Tradition ◽  
Legal Traditions ◽  
And Gender ◽  
Role Of Religion

This chapter explores in considerable detail differences and similarities between the Islamic legal tradition and international law. It discusses in detail the historical interaction between these legal traditions, their co-evolution, and the academic conversations on this topic. The chapter also addresses the Islamic milieu’s contributions to international law, and sources of Islamic law including the Quran, sunna, judicial consensus, and analogical reasoning. It talks about the role of religion in international law. Mapping the specific characteristics of Islamic law and international law offers a glimpse of the contrasting and similar paradigms, spirit, and operation of law. This chapter identifies three points of convergence: law of scholars, customary law, and rule of law; as well as three points of departure: relation between law and religion, sources of law, and religious features in the courtroom (religious affiliation and gender of judges, holy oaths).

The First Decade of Namibian Law

1999 ◽  
Vol 68 (3) ◽  
pp. 275-291
Author(s):  
Keyword(s):  
South Africa ◽  
Present State ◽  
Legal Education ◽  
Legal Profession ◽  
Customary Law ◽  
Concise Overview

AbstractThe article provides a concise overview of Namibian legal developments since the country became independent in 1990. It presents the constitutional framework of Namibian law, the principle of continued application of pre-independence rules, the history and future of the Roman-Dutch law inherited from South Africa, the role of customary law, and the present state of legal education and the legal profession in the country.

scholarly journals The evolving role of business in contributing to social justice in South Africa in terms of legislative measures

2016 ◽  
Vol 13 (2) ◽  
pp. 465-472 ◽  
Author(s):  
Karunanidhi Reddy
Keyword(s):  
South Africa ◽  
Black People ◽  
Race And Gender ◽  
Disadvantaged Communities ◽  
Goods And Services ◽  
The Social ◽  
Descriptive Approach ◽  
And Gender ◽  
Legislative Measures

Apartheid in South Africa has burdened the nation with high levels of poverty, illiteracy and other forms of social and economic inequality. The resultant challenges included discrimination on grounds of race and gender, which prevented much of the population from fair opportunities for business ownership and management, and securing senior jobs, as well as obtaining access to goods and services. Many businesses were closed to Black people and separate and inferior facilities were provided for them. Further, workplace discrimination was supported by the law. This article uses a descriptive approach to reveal, particularly in terms of the legislative measures introduced, the social responsibility of business in a transforming society, more especially the transformation of the historically disadvantaged communities.

Legislative Recognition of Muslim Marriages in South Africa

2004 ◽  
Vol 32 (2) ◽  
pp. 271-282 ◽  
Author(s):  
Rashida Manjoo
Keyword(s):  
South Africa ◽  
Customary Law ◽  
Law Reform ◽  
Negative Consequences ◽  
The Law ◽  
Personal Law ◽  
Secular State

Both theoretically and constitutionally, South Africa is a secular state with many religious and non-religious groupings co-existing with each other. The reality is that there is widespread observance of both religious and customary law — despite a lack of or limited recognition thereof under the apartheid government. The non-recognition of other forms of law in South Africa has had negative consequences and the remedial efforts of the present government is visible both in the area of customary law and also Muslim Personal Law, hereinafter referred to as MPL. This paper will confine itself to discussing the law reform efforts in respect of the recognition of Muslim marriages.

scholarly journals "Every Bloody Right To Be Here": Trans Resistance in Aotearoa New Zealand, 1967 - 1989

2021 ◽  
Author(s):  
◽  
Will Hansen
Keyword(s):  
New Zealand ◽  
Community Building ◽  
Law Reform ◽  
Reform Movements ◽  
Gay Liberation ◽  
Aotearoa New Zealand ◽  
Trans People ◽  
Sexuality And Gender ◽  
And Gender

<p>Throughout the 1970s and 1980s, trans people in Aotearoa New Zealand resisted cisgender hegemony in numerous ways. This thesis aims to explore three key methods of trans resistance practiced during the period between 1967 and 1989 – community building, trans pride, and normalising trans. This study reveals that trans community building was the essential first step for the budding trans movement, yet maintains that there was never one single trans 'community’ and that each trans community practiced different and sometimes contradictory politics. Just as it was necessary to feel pride in one’s trans self in order to have no shame in connecting to trans others, so too was it necessary to challenge cisgender hegemony and advocate for trans people. This study examines the various ways trans people embodied ‘pride’, refusing to bow to shame on stages as large as the nation’s highest courts to as common as the everyday encounter on the street. The role of trans people in sex worker, gay liberation and homosexual law reform movements is also considered, as is the way trans politics reflected changes on the broader political landscape. Finally, this thesis takes a critical view of attempts made to normalise transness. In the fight for trans rights, some communities practiced a politics of transnormativity and respectability; they attempted to make themselves more respectable by further marginalising those trans communities which were already marginal. This thesis aims to spotlight the disciplining power of race, class, sexuality and gender, determining which bodies mattered and which did not.</p>

scholarly journals THE CONSTITUTIONAL ROLE OF THE JUDICIARY IN CASES OF SEXUAL GBV: AN ANALYSIS OF TSHABALALA v S; NTULI v S 2020 (5) SA 1 (CC)

Obiter ◽  
2021 ◽  
Vol 42 (2) ◽  
Author(s):  
Glancina Mokone
Keyword(s):  
South Africa ◽  
Human Rights ◽  
Common Law ◽  
The State ◽  
Customary Law ◽  
Bill Of Rights ◽  
Gender Based Violence ◽  
The Republic ◽  
Gender Based

The Constitution of the Republic of South Africa is the supreme law, and it imposes obligations on all arms of the State, including the judiciary. In performing their functions and exercising their powers, all three arms of the State are obliged to fulfil the obligations imposed by the Constitution. In particular, all three arms of the State are bound by the provisions of the Bill of Rights. The Bill of Rights, provided for in the Constitution, is a cornerstone of democracy in the country. The Bill of Rights provides for fundamental human rights, which must be respected, protected, promoted and fulfilled by the State. Different legal systems recognised in the Republic also have to comply with the provisions of the Bill of Rights. In particular, section 39(2) of the Constitution provides that whenever legislation is interpreted and when the common law and customary law are being developed, the spirit, purport and objects of the Bill of Rights must be promoted. Therefore, even when a case before a court calls for the application of common law and all the principles applicable under common law, such application must comply with the provisions of the Constitution, including in cases of common-law rape. Gender-based violence has reached alarming rates in South Africa. The country is referred to as the “femicide nation” and the “rape capital of the world”. With a Constitution that is supreme and entrenched, a Bill of Rights that provides for the protection and promotion of fundamental human rights, and obligations incurred in terms of international and African human-rights treaties, there are particular obligations placed on all three arms of the State, including the judiciary. All three arms of the State are obliged to comply with these provisions when addressing the scourge of gender-based violence in the country. This article conducts a critical analysis of the constitutional role of the judiciary in cases of sexual gender-based violence, with a focus on section 39(2) of the Constitution. The analysis is based primarily on the case of Tshabalala v S; Ntuli v S 2020 (5) SA 1 (CC).

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