Custom, Normativity and Authority in South Africa

Abstract

In post-apartheid South Africa, debates about the future of the former homeland countrysides are dominated by questions about the sources of legitimate authority. Within these debates, the normative force of customary law is almost automatically paired with the institution of chiefly rule, and the two of these are usually contrasted – be it negatively or favourably – with the liberal provisions of the nation's democratic constitution. Here I contest this implicit conflation of customary order with chiefly power, whether that conflation be by advocates or critics of them both. I suggest that this unspoken identification of the normative domain with that of sovereign political power overlooks a point that is increasingly prominent in the literature on ‘living customary law’: the argument that customary law draws force from a multiplicity of authorities, through processes that are ultimately embedded in the everyday constitution of the social world itself. Based on ethnographic research in northern KwaZulu-Natal, I argue that the application of customary law by diviners, who mediate the authority of the dead in familial matters, is at least as, if not more, important than chiefship in the constitution of living customary practices.