Pluralist Marriage Laws in a Former Colonial System: Cultural Authenticity or Hybridisation?

Abstract

Abstract Legal pluralism in former colonial territories, like South Africa, often involve the simultaneous existence of multiple marriage forms, distinguishing marital forms associated with former colonial systems from indigenous forms of marriage. These pluralist systems are not value-neutral but continue to favour marriages associated with colonial rules and processes. In addition, they create complicated distinctions between different forms of marriage which are thought to reflect the distinctive cultural or religious identities of those who marry according to these systems. This article argues for an alternative approach: the explicit recognition and encouragement of legal hybridisation as a strategy for disrupting colonial identities and hierarchies which recognises and values the historical and contemporary processes of hybridisation in the law and social practices. It uses the metaphors of the language politics around Afrikaans to describe a rigid form of pluralism based on claims of authentic identity on the one hand, and of isishweshwe, a colourful cotton fabric, which represents the resilience, vitality, and creative exchange which characterises hybridity and which promises to address gender and racial inequality inherent in the current model.