Back from a conference in Cape Town honoring Martin Chanock for his distinguished work on South African legal history, customary law and legal education, I'm realizing that the task of making customary law part of a Western-style legal system -- as South Africa's constitution envisions -- is truly complex.
If customary law were written down, of course, it would be easy to apply it in the same courts that apply common law principles, statutes, and constitutional requirements every day. But if customary law is written down, it risks becoming detached from actual custom -- as indeed happened, notoriously, as whites created a body of customary law adjudication and legislation in the 19th and 20th centuries.
So, too, if customary law were definitively pronounced by a particular person, such as the chief, or by a particular body, such as a council of elders, then its contents would be readily determinable. But if customary law truly is the law created by custom, then it is entirely possible that even if custom at one time conferred such law-pronouncing power on the chief or the council, the custom has now shifted -- and because of that shift, the chief or the council no longer actually have customary sanction for declaring what customary law is.
Or another variation: Suppose that the chief, for instance, is still empowered by custom to make rulings about the content of customary law. But custom also makes clear that the chief's task in this process is not to make the law he (or she) prefers, but to discern the law that has evolved from the customs of the community. How should the chief go about doing this? At this point the chief is in something of the same position as the Western-style judge, though the chief has the substantial advantage of actually being closely familiar with the customs of the community (and the potential disadvantage of having his/her own personal or political interests quite directly at stake): for each of them, the problem is that the customs in question may be unclear or may be in the process of changing.
If a community at one time held a custom of, say, male primogeniture in inheritance, how would someone -- its chief, or a judge of the South African High Court -- tell whether that custom still held, and still had the force of law? If most of the community no longer adhered to the custom, would it no longer have the force of law? Perhaps the answer is obviously yes (that it would no longer be law), but what if most members of the community still declared the point to be a customary rule, and tried to cover up the moments when they themselves departed from the rule? Or what if most members of the community said they weren't sure if the custom was still part of their law, while the rest of the community asserted that it definitely was? Or what if current members of the community were divided in their views, but the chief, or the judge, was convinced that one view fitted much better with the accumulated history of the group than the other view did?
I imagine there are many variations on these questions, variations that are actually arising in real South African communities, and perhaps in many other nations where customary law remains important. (There may well be analogous questions in connection with the customary law of nations -- but I won't try to pursue that issue here.) There don't seem to be any obvious solutions, least of all for judges who aren't very familiar with the customs whose actual content and legal force they are attempting to grasp. It would be convenient if the problems could simply be handed over to traditional leaders such as chiefs, but that solution is logically a circular one if the extent of the traditional leaders' authority is itself one of the controverted issues of customary law. It's also problematic to the extent that chiefs' power, even if uncontroverted in terms of tradition, is subject to constitutional challenge for its inconsistency with constitutional liberties now guaranteed to South Africans in every context of their lives.
Perhaps the best that can be said is that a society committed to honoring customary law must begin by paying very close attention to it, and to the various views of it that different members of customary communities express. A good deal of South African law constitutional law now seems to be aimed at generating that kind of close attention to the actual views of actual, previously unheard, people -- and that effort is exactly on target.