Abstract

Changing marriage practices and a continuing decline in marriage rates are generating tensions in rural South Africa and prompting innovations in the character of women’s rights to land. Empirical evidence of changing practices in relation to land access and marriage in Msinga, a conservative area in KwaZulu-Natal, is presented. Such processes have been characterised in recent scholarship in terms of ‘living customary law, or ‘living law’ but this concept can obscure the underlying social dynamics that produce discrepancies between rules, practices and emergent social realities. An alternative model with greater explanatory power is Moore’s analytical framework for understanding ‘law as process’, suggesting attention to processes of regularisation and situational adjustment, within a fundamental condition of indeterminacy. This framework is utilised to help make sense of data from Msinga on marriage practices and women’s access to land, and to draw some lessons for policy.