Case Law as an Authoritative Source of Customary Law: Piecemeal Recording of (Living) Customary Law?
This contribution deals with the question of whether a judgment from a mainstream court dealing with customary law can be regarded as authority and thus as a recording of a customary rule or rules. When a mainstream court develops customary law to promote constitutional values or strikes customary...
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North-West University
2019-12-01
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doaj-4f635d67aa734dc5b013a5d0a3e617502020-11-25T03:50:44ZafrNorth-West UniversityPotchefstroom Electronic Law Journal1727-37812019-12-012210.17159/1727-3781/2019/v22i0a7591Case Law as an Authoritative Source of Customary Law: Piecemeal Recording of (Living) Customary Law?Christa Rautenbach0Faculty of Law at the North-West University This contribution deals with the question of whether a judgment from a mainstream court dealing with customary law can be regarded as authority and thus as a recording of a customary rule or rules. When a mainstream court develops customary law to promote constitutional values or strikes customary law down for want of constitutionality, it creates new rules which are written down but which can easily be changed when society brings it to court and convinces the court that the rule needs to be changed. It is my contention that case law is a binding source of law, including customary law, which must be followed until such time that it is either absorbed into legislation or amended by a subsequent decision in terms of the principle of stare decisis. It gives us some measure of assurance as to the law to be followed. The high number of customary law disputes taken to a court of law is confirmation that traditional communities are embracing the power of the courts to settle their disputes. The judgments of these courts inevitably become the origins of customary rules that they develop and can thus be regarded as piecemeal recording of (living) customary law. https://journals.assaf.org.za/index.php/per/article/view/7591customary lawsources of customary lawliving customary lawjudicial precedentrecording of customary lawdevelopment of customary law |
collection |
DOAJ |
language |
Afrikaans |
format |
Article |
sources |
DOAJ |
author |
Christa Rautenbach |
spellingShingle |
Christa Rautenbach Case Law as an Authoritative Source of Customary Law: Piecemeal Recording of (Living) Customary Law? Potchefstroom Electronic Law Journal customary law sources of customary law living customary law judicial precedent recording of customary law development of customary law |
author_facet |
Christa Rautenbach |
author_sort |
Christa Rautenbach |
title |
Case Law as an Authoritative Source of Customary Law: Piecemeal Recording of (Living) Customary Law? |
title_short |
Case Law as an Authoritative Source of Customary Law: Piecemeal Recording of (Living) Customary Law? |
title_full |
Case Law as an Authoritative Source of Customary Law: Piecemeal Recording of (Living) Customary Law? |
title_fullStr |
Case Law as an Authoritative Source of Customary Law: Piecemeal Recording of (Living) Customary Law? |
title_full_unstemmed |
Case Law as an Authoritative Source of Customary Law: Piecemeal Recording of (Living) Customary Law? |
title_sort |
case law as an authoritative source of customary law: piecemeal recording of (living) customary law? |
publisher |
North-West University |
series |
Potchefstroom Electronic Law Journal |
issn |
1727-3781 |
publishDate |
2019-12-01 |
description |
This contribution deals with the question of whether a judgment from a mainstream court dealing with customary law can be regarded as authority and thus as a recording of a customary rule or rules. When a mainstream court develops customary law to promote constitutional values or strikes customary law down for want of constitutionality, it creates new rules which are written down but which can easily be changed when society brings it to court and convinces the court that the rule needs to be changed. It is my contention that case law is a binding source of law, including customary law, which must be followed until such time that it is either absorbed into legislation or amended by a subsequent decision in terms of the principle of stare decisis. It gives us some measure of assurance as to the law to be followed. The high number of customary law disputes taken to a court of law is confirmation that traditional communities are embracing the power of the courts to settle their disputes. The judgments of these courts inevitably become the origins of customary rules that they develop and can thus be regarded as piecemeal recording of (living) customary law.
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topic |
customary law sources of customary law living customary law judicial precedent recording of customary law development of customary law |
url |
https://journals.assaf.org.za/index.php/per/article/view/7591 |
work_keys_str_mv |
AT christarautenbach caselawasanauthoritativesourceofcustomarylawpiecemealrecordingoflivingcustomarylaw |
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1724490961557389312 |