Liberal Constitutions and Traditional Cultures: The South African Customary Law Debate

Socially plural, liberal states that have attempted to offer constitutional recognition of the rights of traditional or non-liberal cultural groups alongside the right of sex equality face formidable legal and political challenges. The uneasy relationship between cultural protections for traditional cultural groups and constitutional protection for the sex equality rights of citizens is much in evidence in South Africa's 1996 Constitution. This article examines the political context surrounding the debate about the relative status of cultural rights and gender equality rights in the South African constitutional process and argues for a reframing of similar such conflicts as primarily political and not moral in character. Accordingly, such tensions are best mediated using political methods of conflict resolution, namely, dialogue, bargaining, and compromise.