Critique on Universalism Versus Cultural Relativism Debate, With Special Attention to Customary Law and Constitutionalism In South Africa

Abstract

I critique the longstanding debate between universalism and cultural relativism, particularly within the frameworks of customary law and constitutionalism in South Africa. As globalisation confronts diverse cultural expressions with prevailing human rights norms, the tensions between universalists, who advocate for universal human rights, and cultural relativists, who assert the primacy of cultural practices, have become increasingly pertinent. I explore the implications of this binary opposition on the interpretation and implementation of South African customary law in relation to the Constitution’s Bill of Rights. Through an examination of case law, historical context, and legal frameworks, I argue that such debates often lead to more confusion than clarity, undermining efforts toward the effective co-existence of customary practices and constitutional mandates. The analysis also highlights that the dichotomy of universalism versus cultural relativism offers a more integrated approach that acknowledges the dynamic interplay of culture and law necessary for advancing democracy and human rights. I call for a dialogical framework to be employed in discussions around customary law to suggest pathways that honour constitutional commitments and cultural integrity in South Africa and beyond.