ABSTRACT
Much of the debate about postsecularity has presumed a background of European and other Western countries and the sort of statutory law that legislatures should make, and how they should make it, in light of residents’ religious attitudes and practices. In this chapter I address a fresh context – namely, that of South Africa and the way that courts interpret, and should interpret, law in the face of African traditional religions. Specifically, I explicate the fact that, by South Africa’s famously liberal and progressive Constitution, religious customs already count as law, and illustrate how such customary law can work with three court cases related to indigenous African spirituality. Then, I lay out and evaluate the two central arguments that jurists have made in favour of South Africa’s constitutional practice of deeming long-standing religious ways of life to be sources of law. I contend that these influential arguments for customary law, which appeal to respect for individuals, are weak, and sketch more promising rationales, which invoke more communitarian considerations. I conclude by indicating some of the issues that need to be addressed next in order to determine conclusively whether South Africa’s way of approaching postsecularity merits retention there and adoption in other contexts.
