Reflections on Liberalism

Abstract

How do nation-states in the twenty-first century, nation-states increasingly forced to come to terms with the ethnic heterogeneity of their citizens, deal with the problem of cultural difference? How, in particular, does the Constitution of post-apartheid South Africa — widely believed to be the most enlightened in the contemporary world, the most tolerant of diversity — strike a balance between the ‘One Law’ of ‘The Nation’ and the plurality of customary beliefs sustained, as a matter of right, by the various peoples who make up this postcolony? What happens, in the course of everyday existence, when Constitution and Custom appear to contradict one another — and to do so in such a manner as to raise questions of basic human rights, of freedom of belief, even of life-and-death? These questions are addressed in the paper through a critical, broadly situated analysis of the confrontation between the Constitution of South Africa and the Kingdom of Custom that continues to prevail in one of its provinces, the North West. By exploring a complicated case that drew the State, via its Human Rights Commission, into open conflict with a Tswana chiefdom—a case about death rituals argued, before a high court judge, in the lexicon of modern jurisprudence — it shows how a ‘living constitution’, tolerant of everyday ambiguity, is being forged in the space of strategic engagement opened up by the alternative languages and cultures of legality that exist in this ‘policultural’ postcolony. And in others like it.