Journal Article

Litigating the right to culture: family law in the new South Africa

L Fishbayn

in International Journal of Law, Policy and the Family

Volume 13, issue 2, pages 147-173
Published in print August 1999 | ISSN: 1360-9939
Published online August 1999 | e-ISSN: 1464-3707 | DOI: http://dx.doi.org/10.1093/lawfam/13.2.147
Litigating the right to culture: family law in the new South Africa

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South Africa enacted a new Constitution in 1996. It purports to guarantee the rights to gender equality and to participation in the cultural life of one's choosing. The nature of the relationship between these potentially conflicting rights has been left to be worked out through adjudication. This article examines the first three cases in which courts have had to consider the significance of the right to culture in the context of family law disputes decided under African customary law and Muslim religious law. Two of the three cases have allowed the invocation of an interest in the preservation of culture to justify the perpetuation of dramatic gender inequality. The author suggests that these erred because they understood a culture to be a closed, static and integrated system, unable to incorporate new developments such as gender inequality. The author suggests that these judges erred because they understood a culture to be a closed, static and integrated system, unable to incorporate new developments such as gender equality without losing its coherence. She identifies an alternate conception of culture as a fluid, open-textured narrative which can and does make sense of new developments such as gender equality while retaining a sense of narrative continuity. The article concludes by describing a judgment which illustrates how adjudication using this notion of culture can successfully integrate the Constitution's commitments to culture and equality.

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Subjects: Family Law ; Marriage and the Family

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