African Customary Marriages in South Africa and the Intricacies of a Mixed Legal System: Judicial (In)novatio or Confusio?

2012 ◽  
Vol 57 (4) ◽  
pp. 749-780 ◽  
Author(s):  
Christa Rautenbach ◽  
Willemien du Plessis
Keyword(s):  
South Africa ◽  
Legal System ◽  
Common Law ◽  
Case Law ◽  
Legal Positivism ◽  
Customary Law ◽  
Legal Systems ◽  
The Core ◽  
Marriage Laws

South Africa has a mixed legal system comprised of transplanted European laws (the core being Roman-Dutch law, subsequently influenced by English common law) and indigenous laws, referred to as customary law. This mix is also evident in South Africa’s marriage laws, which can roughly be divided into two categories: civil marriages or unions, and African customary marriages. Since 1994, the developments in these two categories of marriage have been revolutionary. The case law reads like a jurisprudential chronicle of factual situations never contemplated by the legislator, and the judiciary must resort to innovation to solve the intricacies of a constitutionalized mixed legal system. To deal with the challenges posed by the interaction of two seemingly equal legal systems in one legal sphere, the courts have followed a variety of approaches including legal positivism, the application of common law principles, and, more recently, the notion of transformative constitutionalism. The primary aim of this essay is to discuss the sometimes innovative and at other times confusing approaches followed by the judiciary in dealing with the complexities created by a mixed legal system, especially with regard to marriages between Africans.

scholarly journals The Centrality of Customary Law in the Judicial Resolution of Disputes that Emanate from it – Dalisile v Mgoduka (5056/2018) [2018] ZAECMHC

Obiter ◽  
2019 ◽  
Vol 40 (3) ◽  
Author(s):  
Nomthandazo Ntlama
Keyword(s):  
South Africa ◽  
Common Law ◽  
Case Note ◽  
Customary Law ◽  
Legal Systems ◽  
Case Discussion ◽  
High Court ◽  
The Past ◽  
History Of ◽  
The Republic

The recent judgment by the Mthatha High Court in Dalisile v Mgoduka ((5056/2018) [2018] ZAECMHC (Dalisile)) has elicited much jubilation over the permeation of customary-law principles into the judicial resolution of disputes that emanate from a customary-law context. The judgment comes at a time when common-law principles appear to have infiltrated the resolution of disputes that originate from customary law. This case paves the way and provides a foundation for the resolution of customary-law disputes within their own context. It reinforces arguments that have long been canvassed to constitutionalise customary law within its own framework. It endorses the envisioned commitment to translate into reality the “healing of the divisions of the past” as envisaged in the preamble of the Constitution of the Republic of South Africa 1996. Section 211(3) of the Constitution is distinct and prescriptive on the obligations of the courts relating to the application of customary law. Section 211(3) is in the context of pursuing the advancement of a constitutionalised system of customary law that seeks to equate the applicable laws of the Republic.This case has filled a lacuna in the application and interpretation of customary law, which has been clouded by the prism of common law. The gap was acknowledged by the court in Alexkor Ltd v Richtersveld Community (2003 (12) BLCR 1301 (CC). In Alexkor, customary law was affirmed as an independent and legitimate source of law that is empowered to regulate its own affairs within the framework of the Constitution. It does not have to be legitimised and validated by common-law principles in addition to the Constitution.Resolving disputes arising from customary law has been a great cause for concern. The courts have delivered many disappointing judgments in the area of resolving customary-law disputes. These judgments appear to lean towards importing common-law principles into the resolution of disputes that arise from the system of customary law. This case note does not intend to discuss these judgments in any depth as they have been dealt with elsewhere.It is thus not the purpose of this case discussion to delve into the history of customary law. Its intended focus is limited to the significant stride made by the court in Dalisile in uprooting the dominance of the application of common-law principles in the resolution of disputes that arise from the system of customary law. The objective is to generate debate on the contribution that the judgment makes to the incorporation of Africanised principles into the broader constitutional framework of the jurisprudence of our courts. The note argues that it is the Constitution that is the dominant authority over all the legal systems that are applicable in the Republic, including customary law.

Teaching the “Other Law” in a South African University: Some Problems Encountered and Possible Solutions

Obiter ◽  
2020 ◽  
Vol 41 (1) ◽  
pp. 1-9
Author(s):  
M Maithufi (In Memory) ◽  
CA Maimela
Keyword(s):  
South Africa ◽  
South African ◽  
Legal System ◽  
Common Law ◽  
Higher Learning ◽  
Customary Law ◽  
Current Debate ◽  
African Community ◽  
Curriculum Transformation ◽  
Learning Institutions

African customary law is a legal system that is recognised in South Africa and forms part of the law of the indigenous people of South Africa. Due to colonialism and apartheid, this legal system was rejected and underdeveloped in favour of common law. The supremacy of the Constitution and its recognition of African customary law as an independent legal system, separate from the common law, aimed to correct past injustices that flowed from the underdevelopment of this important legal system. Whether the Constitution and higher learning institutions have attained the goal of developing African customary law in South Africa is a question that will be explored and debated in this contribution. Its aim is to assess the role of higher learning institutions in developing African customary law through their teaching of this system of law, as well as to outline some of the challenges faced by these institutions in offering an African customary law course to students. Possible solutions are discussed; the aim is to ensure that the teaching component of African customary law is developed, and to contribute to the current debate about curriculum transformation among universities and various stakeholders in higher learning. Curriculum transformation is key to the future development and inclusiveness of the South African community that is so diverse.

scholarly journals The Transplant of Trusts in Different Legal Jurisdictions: The Example of China

Global Jurist ◽  
2020 ◽  
Vol 0 (0) ◽  
Author(s):  
Giulia Terranova
Keyword(s):  
Legal System ◽  
Common Law ◽  
Civil Law ◽  
Original Model ◽  
People’S Republic Of China ◽  
Legal Institution ◽  
Legal Systems ◽  
People's Republic Of China ◽  
Republic Of China ◽  
Trust Law

AbstractLegal transplants are considered a significant factor in the evolution of legal systems. One example of transplant of a legal institution through its prestige is the diffusion of the trust from the English legal system to other common law systems and to many civil law countries. One of these is China that in 2001 enacted the Trust Law of the People’s Republic of China. This paper wants to analyse the trust under the Trust Law and to compare it with the original model in the English legal system, understanding how far or how close it is from the original one.

scholarly journals PERBANDINGAN SISTEM HUKUM COMMON LAW, CIVIL LAW DAN ISLAMIC LAW DALAM PERSPEKTIF SEJARAH DAN KARAKTERISTIK BERPIKIR

2018 ◽  
Vol 25 (1) ◽  
pp. 98
Author(s):  
Farihan Aulia ◽  
Sholahuddin Al-Fatih
Keyword(s):  
Legal System ◽  
Legal History ◽  
Islamic Law ◽  
Common Law ◽  
Legal Systems ◽  
Legal Tradition ◽  
History Of ◽  
Legal Thinking ◽  
Anglo American ◽  
The Comparative Study

The legal system or commonly referred to as the legal tradition, has a wealth of scientific treasures that can be examined in more depth through a holistic and comprehensive comparative process. Exactly, the comparison of the legal system must accommodate at least three legal systems that are widely used by countries in the world today. The three legal systems are the Continental European legal system, Anglo American and Islamic Law. The comparative study of the three types of legal systems found that the history of the Continental European legal system is divided into 6 phases, while Anglo American legal history began in the feudalistic era of England until it developed into America and continues to be studied until now. Meanwhile, the history of Islamic law is divided into 5 phases, starting from the Phase of the Prophet Muhammad to the Resurrection Phase (19th century until nowadays). In addition to history, the authors find that the Continental European legal system has the characteristic of anti-formalism thinking, while the Anglo American legal thinking characteristic tends to be formalism and is based on a relatively primitive mindset. While the thinking character of Islamic Law is much influenced by the thought of the fuqoha (fiqh experts) in determining the law to solve a problem, so relatively dynamic and moderate.

scholarly journals THE ROLE OF JUDICIAL PRACTICE IN THE LEGAL SYSTEM: RUSSIAN EXPERIENCE IN THE WORLD CONTEXT

2017 ◽  
pp. 40-49 ◽  
Author(s):  
Виктор Момотов ◽  
Viktor Momotov
Keyword(s):  
Legal System ◽  
Negative Attitude ◽  
Case Law ◽  
Legal Framework ◽  
Legal Systems ◽  
Legal Norms ◽  
Judicial Practice ◽  
The Usa ◽  
Anglo American

In Russian legal science there is a wide-spread belief according to which legal precedents are not sources of Russian law, because Russian legal system forms a part of continental legal system. Various researchers believe that judicial practice does not contain legal norms and consequently case law is not a component of Russian legal framework. The present paper contains the theoretical and historical legal research of the place and role of case law in Anglo-American and continental legal systems. It’s shown that for long historical periods legal precedents were recognized as sources of law not only in Great Britain and the USA, but also in major European legal systems, while at the present time differentiation of legal systems with respect to their attitude towards case law is becoming outdated. Furthermore, based on the research of various legal scholars’ traditions (principally of the positivistic and the sociological traditions) this article demonstrates that negative attitude towards case law is largely determined by the formalistic and obsolete understanding of the term ”source of law”, coming from the misinterpretation of positivism. The paper also presents the current development trends of case law as a source of law. In particular the article outlines the proactive interpretations of new statutory provisions issued by the Plenum of the Supreme Court of the Russian Federation, the global uniqueness of such interpretations and the influence of scientific–technological progress and public needs on the highest court’s interpretations. The mutual interference of case law and statutory law is shown.

The Sources of Law[121]

2019 ◽  
pp. 89-126
Author(s):  
Alf Ross
Keyword(s):  
Legal System ◽  
Legal Theory ◽  
Legal Positivism ◽  
Cultural Tradition ◽  
Legal Systems ◽  
Legal Rules ◽  
The Difference ◽  
Realist Perspective

This chapter identifies the ideology of the sources of law in the sense of determining the general sources through which judges form their beliefs about the validity of individual legal rules. In accordance with the norm-descriptive perspective, the focus is on identifying the ideology of the sources of law that is actually held by judges. As part of scientifically valid law, the ideology of the sources of law varies from one legal system to another. The task for general legal theory can therefore only consist in stating and characterizing certain general types of sources of law, which experience tells us are found in all well-developed legal systems where they are found to determine how courts proceed in their search for the norms on which they base their decision. This chapter identifies four such sources of law and considers the degree of objectification or positivization possessed by each of these types of sources. Specifically, it discusses the completely objectivized type of source: authoritative formulations (legislation in its widest sense); and the partially objectivized types of source: precedent and custom; and the non-objectivized, ‘free’ type of source: ‘cultural tradition’ or ‘the nature of the matter’. Countenancing the latter as a scientifically valid source of law, is further argued to highlight the difference between the author’s legal realist perspective and the formalist perspective characteristic of legal positivism.

Examples of Alternative Legal Systems in India

2019 ◽  
pp. 47-73
Author(s):  
Mahendra Pal Singh ◽  
Niraj Kumar
Keyword(s):  
Legal System ◽  
The State ◽  
Customary Law ◽  
Formal Definition ◽  
Legal Systems ◽  
Uniform Law ◽  
Definition Of ◽  
Cultural Freedom ◽  
Personal Law

There are systems of law within the Indian jurisdiction that either do not rely on the state legal system at all or rely on it only partially. These include systems of religious personal law, tribal customary law, and other similar indigenous mechanisms of administering justice and settling disputes. The formal definition of law in India, along with constitutional provisions which guarantee religious and cultural freedom and allow for modes of self-governance, accommodates different legal systems with indigenous or traditional roots. Moreover, local and village bodies such as traditional or caste councils operate in independent India as well, further questioning the rhetoric of uniform law in India.

2. Legal systems and sources of law

2020 ◽  
pp. 35-70
Author(s):  
Scott Slorach ◽  
Judith Embley ◽  
Peter Goodchild ◽  
Catherine Shephard
Keyword(s):  
International Law ◽  
Common Law ◽  
Civil Law ◽  
Case Law ◽  
Potential Effect ◽  
Legal Systems ◽  
Public And Private ◽  
England And Wales ◽  
The World ◽  
The Status

This chapter focuses on the sources of law in England & Wales, and is organised as follows. Section 2.1 describes the key jurisdictions relevant to lawyers in England and Wales. Section 2.2 deals with the issue of where the law comes from: sources of law. Section 2.3 reviews the development of the two ‘traditional’ sources of law in England and Wales: case law and statutes. Sections 2.4 and 2.5 consider the status and operation of EU and international law, including the potential effect of Brexit. Section 2.7 goes on to discuss public and private law, common law, and civil law, and other classifications used by lawyers. This is followed by a discussion of legal systems and their cultures across the world.

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