1. Academic Wits Research Publications (Faculties submissions)
Permanent URI for this communityhttps://hdl.handle.net/10539/37774
Browse
2 results
Search Results
Item Cultural diversity, 'Living Law' and Women's Rights in South Africa(Cambridge University Press, 2013) Albertyn, CatherineThis chapter considers the constitutional recognition of cultural diversity, especially as it is manifest through the recognition of customary law, and its relationship to the constitutional guarantee of gender equality. As the supreme law, the South African Constitution subjects all law (customary, common, and statutory) to the rights and values of the Constitution, including the primary democratic values of dignity, equality, and freedom. This chapter rejects the idea that the Constitution provides a “liberal democratic” framework that constitutes the basis for a “top-down” universalism that tests culture and custom against irretrievably external, liberal standards. Although the Constitution is capable of this, among other, interpretations, the chapter argues that the best – and most transformative – interpretation of the constitutional text is one that enables a deep respect for cultural identity and diversity and consequent recognition of positive cultural norms and practices, while also addressing cross-cutting, intragroup inequalities, such as gender. This interpretation recognizes that transformation under the South African Constitution requires courts to address multiple and intersecting inequalities, and that culture and custom – long ossified in official law – face particular challenges in adapting to contemporary political, economic, and social conditions. Although democratic and cultural values might be rooted in different contexts, South Africa’s history of colonialism, apartheid, and political struggles, as well as its socioeconomic development, mean that there is considerable common ground within and across communities for harmonizing customary law and the Constitution.Item Substantive equality and transformation in South Africa(Juta and Co, 2007) Albertyn, CatherineThis article considers whether ‘substantive equality’, as a transformative idea and legal mechanism in the South African Constitution, can generate legal solutions and court decisions that may result in transformative change. It does so by establishing a framework for analysing the ‘inclusionary’ or ‘transformatory’ effects of equality cases in relation to gender and sexual orientation. It argues that the idea of substantive equality is capable of addressing diverse forms of social and economic inequality, and that the legal form of substantive equality adopted by the Constitutional Court, emphasising context, impact, difference and values, has some potential for achieving meaningful social and economic change by and through courts. However, the manner is which the Court has engaged with this legal form suggests that the transformative possibilities of equality are constrained by a number of factors. These include institutional concerns, the capacity and willingness of judges to recognise and address the multiple systemic inequalities that still pervade our society as well as their ability to develop a consistently transformative jurisprudence that applies the ideas of substantive equality to the concepts and doctrines that underpin many equality claims.