Reflections on Liberalism, Policulturalism, and ID-ology
How do the nation-states of 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 when the Constitution and Custom appear to contradict one another – and raise questions of basic human rights, even of life-and- death? How are such contradictions managed, resolved, dissolved, disclaimed? Who has the authority to police the cultural lives of a citizenry when the majority recognize legal orders other than that of the nation-state itself? These questions are addressed in a critical, broadly situated analysis of the confrontation between the Constitution of South Africa and the Kingdom of Custom of one of its indigenous peoples, drawing on a complicated case, involving death rituals, argued before a high court judge in the lexicon of modern jurisprudence. It demonstrates how a “living constitution,” tolerant of everyday ambiguity and quotidian contradiction, is being forged in the space of strategic engagement opened up by the alternative languages and cultures of legality that exist in this postcolony. And in others like it.