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Customary law as an open, adaptive system

28 May 2010

On 15 April a team from the Legal Resources Centre (LRC) delivered a seminar at PLAAS about facilitating meaningful engagement between state law and living customary law. The story of four communities: Kalkfontein, Makuleke, Makgobistad and Dixie were used to illustrate these highly contested dynamics and of course reference was made to the recent constitutional court ruling on the unconstitutionality of the Communal Land Rights Act, an achievement for which the LRC has been instrumental. Presenters were Henk Smith, Kobus Pienaar and Wilmien Wicomb, and they kindly offered us the below paper for this blog.

Members of the Dixie, Makuleke and Kalkfontein communities outside the Pretoria Supreme Court in 2008 where they challenged the Communal Land Rights Act. (Photograph: Lisa Skinner)

By Wilmien Wicomb

Descriptions of customary law invariably emphasise its changing and localised nature. This would indicate that a codification of customary law in order to regulate the system would be unsuccessful in capturing the contents of the system – and much has been written about how customary communities have defied any such attempts.

It seems therefore necessary to find an alternative means of regulating the customary law system. Here it is suggested that it may be important to recognise and acknowledge the fact that a robust, adaptive system like customary law must be allowed to operate as an open system if it is to be able to adapt in a fundamental (rather than superficial) way when confronted with a changing environment: in this case a new constitutional dispensation. The argument draws on Derrrida’s critique of structuralism’s closed and fixed systems of meaning.

Derrida was critical of structuralism’s understanding of systems of difference as the structures responsible for the creation of meaning,[1] not because  meaning  is posited as a function of structure, but rather because structuralism understood this structure to have a center (or a point of origin) which organises the structure and as a result dictates the meaning generated by the structure. As he points out, this system of difference as a totality and therefore a closed system of meaning is dependent on a center which dictates what is allowed inside the system, and what must necessarily remain outside.

The function of this center was not only to orient, balance, and organise the structure – one cannot in fact conceive of an unorganised structure – but above all to make sure that the organising principle of the structure would limit what we might call the play of the structure. By orienting and organising the coherence of the system, the center of a structure permits the play of its elements inside the total form. And even today the notion of a structure lacking any center represents the unthinkable itself. Nevertheless, the center also closes off the play which it opens up and makes possible (Derrida 1978:352).

The significance of this center is the fact that, while it allows for meaning (as the play of elements) to be free within the structure, the structure itself remains closed and static, because nothing that does not correlate with the organising principle (center) is allowed in the system. This structurality of the structure is hidden by the play that is allowed within its boundaries – the system allows for change and therefore seems open, but in fact, regulates the change in terms of its own rules. Because the meaning within this system is dynamic, and the meanings attached to signifiers therefore able to change, the absolute limits that the center places on this change, becomes invisible. (Derrida 1978:278).

What the centralised system implies for a theory of meaning is that, while meaning is free within the system, this meaning is always reduced to the center as  organising principle and can therefore never influence, defy or alter this center and as a result the structure of the system. The meaning that is generated by the play of differences within the system always necessarily remains within the structure without influencing the structure. While the meaning (play) generated in the system seems free, it is in fact bounded by the totalising structure.

In terms of customary law, there is a real danger that an emphasis on ‘origin’ or tradition in our descriptions of the system may function as an organising principle. While this should be resisted if we are to have any hope of customary law adapting to our constitutional principles, other attempts to organise the system may be equally destructive.

Luhman has argued that positivist law is a closed autopoetic system with a fixed structure that precludes any interference from the outside. He does not deny that the system shows change, but he argues that the change remains a function of the internal structure of the system – which means that the system only changes in terms of its own rules (in other words, its organising principle).

It could be argued that a customary law system must be an open system, because for it to be able to survive within a new constitutional dispensation, it will need to transform substantially – or become untenable. We must therefore be able to regulate customary law in a way that removes any organising principle or structure able to dictate what is in and what is out – therefore precluding any possibility of substantive transformation.

Luhman’s position has not gone unchallenged, but, for the sake of this argument, we can use it as a (caricatured) description of state law in order to juxtapose a description of customary law as an open system.

This juxtaposition is supported when understood in terms of the principle of legal certainty. Change is necessarily a threat to legal certainty. This is not to say that meaning in state law systems don’t shift and change – we know it does, and not only because meaning is never stable – but this change is constrained as far as possible by and adherence to precedent and its central importance in judicial decision-making. It is fair to say that a customary law system does not have stability as a founding principle of its functioning and existence to the same degree. A dispute is not resolved based on a strict interpretation of the legal principle in question, but through negotiation and informal dispute resolution. Similarly, rules are created through negotiation and often at a local level with little reference to the rules or laws applicable at a different community level.

This could mean that customary law is able to function effectively as an open system with no organising principle – that which Derrida calls ‘the unthinkable’. The question is, how do we write legislation able to accommodate and regulate the unthinkable?

[1]Structuralism based its assumptions largely on the theory of language as developed by Ferdinand de Saussure. Saussure argued that the elements of a language cannot be identified in terms of their intrinsic value, but in terms of the relationship they have with every other element in the system. These relationships are characterised by difference; the more an element can be differentiated from other elements, the more meaning it gains. Outside this system, a sign is meaningless.

One Comment leave one →
  1. 30 July 2010 8:09 am

    “Meaning is never stable” – in no system whatsoever. Notions that underly and processes that generate and sustain what becomes known as “customary law” continually adapt to challenges and dictates of their time and readjust accordingly. Consequently, “customary law” cannot but be subject to the same principles and limitations every other subsystem has to observe. A constitutional democratic set-up functions at best, if such transitions find enough room to evolve – not as an end in themselves, but as an indicator and a bridge towards a more inclusive regulation on a broader scale.

    See also:

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