The concept of living customary law: a critique

The concept of living customary law has been embraced by scholars and judges, especially in southern Africa. However, its acceptance has not benefitted from a detailed legal theoretical explanation. Indeed, the mainstream conceptualisation of living customary law may be accused of alarming ambiguity, which is evident in scholars’ failure to properly account for its flexibility and emergence. This article critiques this conceptualisation, arguing that a meaningful theoretical engagement with living customary law in postcolonial societies should involve two inter-connected approaches. The first is an interdisciplinary approach to law; the second is the perspective of legal pluralism, which plays a key role in the emergence of living customary law. The article proposes that living customary law is best perceived as a product of people's adaptation of customs to socio-economic changes and suggests that this approach is the stepping stone to a comprehensive theory of African law.