The Constitutional Case for Common-ing ‘(Un)common’ Law by Amalgamation

This chapter builds on the call for ‘Alter-Native Constitutionalism’ due to the inadequacies of South Africa’s transformative constitutionalism in achieving economic and social justice by examining how South Africa’s legal system can realise the necessary shift towards a truly common law. It therefore outlines the technical steps required to amalgamate ‘common’, ‘customary’ and ‘vernacular’ law, proposing a framework where vernacular law – reflecting the lived experiences and cultural norms of the majority population – underpins the whole legal system rather than being confined to isolated ‘cultural’ domains. Drawing on centuries-long debates among scholars of indigenous law, yet recognising that there are foundational similarities between vernacular and state law that can be leveraged, it stresses the care necessary in blending Western and Indigenous knowledges. It highlights that, for this integration to succeed, courts need to adopt a flexible, context-sensitive approach that respects vernacular law’s process-centred-based nature. The chapter thus advocates for preserving vernacular legal processes (because their consultation-based, adaptive structure is key to the law’s legitimacy), as well as vernacular law’s core content (especially around needs-based claims, multigenerational provision and protecting relational structures), as the primary means by which South Africa can achieve a genuinely transformative and common legal order.