Forging a Path for Women's Rights in Customary Law

Common law in Africa began as a dynamic, fluid structure that was effective for governing small, tight-knit communities. After the introduction of European colonialism, however, common law incorporated European customs, such as patriarchy and individualism. The individual and patriarchal structure solidified in many African communities and had a grossly disproportionate effect on women, whose lives were dictated by lack of property rights and self-determination. In South Africa in particular, the patriarchal structure continued into the 20th century despite a global recognition of equal rights for women.

This article explores the origins of common law and suggests that many communities may yet benefit from precolonial common law, where custom and modem ideals can interact to create a legal structure that will more greatly benefit women.