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PDF
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Type:
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Conference Paper |
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Author:
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Wicomb, Wilmien |
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Conference:
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Sustaining Commons: Sustaining Our Future, the Thirteenth Biennial Conference of the International Association for the Study of the Commons |
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Location:
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Hyderabad, India |
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Conf. Date:
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January 10-14 |
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Date:
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2011 |
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URI:
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https://hdl.handle.net/10535/7248
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Sector:
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Social Organization |
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Region:
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Subject(s):
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customary law
complexity--theory
constitutional law
power
ethics
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Abstract:
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"The question of the appropriate accommodation of living customary law by state law and institutions has become central to the question of the governance and sustainable existence of communal property in South Africa. This is the result of the development of jurisprudence in South Africa that increasingly acknowledges customary rights as the basis of the continued protection and promotion of the rights of rural communities to access communal land and resources. Unfortunately, post-apartheid state law and institutions do not reflect these developments, thereby effectively excluding many poor rural communities from the commons as their customary rights are ignored. The reluctance to properly accommodate customary law is partly based on the difficulty to identify and give content to customary law as a system and partly on the fact that many of the concepts of customary law – indeed the very understanding of law itself – are foreign to and even irreconcilable with the semantics of state law. In addition, the fluid nature of customary law runs contrary to positivist notions of the law and the paper discussed a couple of instances where courts were faced with this difficult reconciliation. The issue of the facilitation of a meaningful engagement between state and customary law is significant in terms of both access to the commons and in terms of the eventual governance of common property. This paper will argue that the theory of complexity is useful not only for our understanding and description of the elusive customary law system, but also in understanding how state law can accommodate customary law in a way that allows for the customary system to operate as the open and adaptive system that it is. The issues of legal certainty and power will be addressed specifically as they arise in a comparison between state and customary law systems."
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