Decolonial Comparative Law: Thoughts from South Africa

In this article, I problematise a popular approach to comparative law in South Africa that invariably seeks answers to legal problems in European law. This approach could potentially have neo-colonial effects. I propose that one version of a decolonial approach to comparative law could involve comparing South Africa’s European legal tradition (today called the South African common law) and its African legal tradition (today called the South African customary law). Utilising postcolonial, decolonial, and legal-pluralism theory, coupled with recent developments in the South African law of delict (torts), I suggest that the common/customary law interface ought to involve acts of both resistance and activism. There ought to be a resistance to the paradigms of “separatism”, “mimicry”, and “universality”. Simultaneously, there ought to be an embrace of “actively subversive hybridity”, “pluri-versality” and “delinking”. I contend that it is in this matrix of resistance and activism where at least one version of decolonial comparative law might be found.