Customary Law and Indigenous Rights in South Africa: From Transformative Constitutionalism to Living Law in Struggles for Rural Land Rights

Simple item page
dc.contributor.advisorCoombe, Rosemary
dc.contributor.authorHuizenga, Daniel Luke
dc.date.accessioned2019-11-22T18:51:31Z
dc.date.available2019-11-22T18:51:31Z
dc.date.copyright2019-07
dc.date.issued2019-11-22
dc.date.updated2019-11-22T18:51:31Z
dc.degree.disciplineSocio-Legal Studies
dc.degree.levelDoctoral
dc.degree.namePhD - Doctor of Philosophy
dc.description.abstractSouth Africa is well known for the countrys model of racialized territorial government called apartheid and the successful transition to constitutional democracy in April 1994. The South African Constitution provides a framework for the progressive realization of human rights as a measure of transitional justice. The Constitution guarantees land reform to account for histories of racialized dispossession. However, critics argue that land remains insecure for millions of racialized peoples living in rural areas who remain subject to forms of undemocratic chiefly authority. Existing scholarship argues that rural land insecurity is due in part to a failure to legislate an appropriate post-colonial and emancipatory version of customary law as a basis for collective land rights. A common line of argument is that there are two ways of interpreting customary law as either codified in law, as it was during colonialism, or as living customary law, referring to an imagined historical evolution of custom in response to a democratic transition and changing social and economic conditions. For example, literature often focuses on traditional leadership in South Africa and argues that this model of governance, while based on cultural rights as protected in the Constitution, relies on ethnic and territorial control reminiscent of the Bantustan reserves under apartheid. In this dissertation I demonstrate that a dichotomous view of customary law, as either codified or living, is inaccurate in contemporary conditions of neoliberalism wherein forms of authority and subjectivity and claims to territorial control are characterized by multiple actors engaged in networked and horizontal relationships of power. In these conditions, I show, an ethic of transformative constitutionalism paired with forms of government characteristic of neoliberalism have opened opportunities for new articulations of human rights, custom and property, that contribute to the emergence of living law and new forms of territorialisation. Moreover, I demonstrate that the transnational indigenous rights movement, and the vernacularization of indigenous rights in South Africa, are unsettling colonial and post-colonial assumptions about customary law in the contemporary period.
dc.identifier.urihttp://hdl.handle.net/10315/36753
dc.languageen
dc.rightsAuthor owns copyright, except where explicitly noted. Please contact the author directly with licensing requests.
dc.subjectSouth African studies
dc.subject.keywordsSocio-Legal Studies
dc.subject.keywordsIndigenous Studies
dc.subject.keywordsHuman Rights
dc.subject.keywordsNeoliberalism
dc.subject.keywordsTerritory
dc.subject.keywordsCustomary Law
dc.subject.keywordsTransnational Law
dc.subject.keywordsInternational Development Studies
dc.subject.keywordsLand Reform
dc.subject.keywordsLand Rights
dc.subject.keywordsSouth Africa
dc.subject.keywordsSouthern Africa
dc.titleCustomary Law and Indigenous Rights in South Africa: From Transformative Constitutionalism to Living Law in Struggles for Rural Land Rights
dc.typeElectronic Thesis or Dissertation

Files

Original bundle
Now showing 1 - 1 of 1
Thumbnail Image
Name:
Huizenga_Daniel_L_2019_PhD.pdf
Size:
1.18 MB
Format:
Adobe Portable Document Format
Description:
Download
License bundle
Now showing 1 - 2 of 2
No Thumbnail Available
Name:
license.txt
Size:
1.87 KB
Format:
Plain Text
Description:
Download
No Thumbnail Available
Name:
YorkU_ETDlicense.txt
Size:
3.39 KB
Format:
Plain Text
Description:
Download

Collections

Socio-Legal Studies

All items in the YorkSpace institutional repository are protected by copyright, with all rights reserved except where explicitly noted.