A comparative analysis of the 2:1 rule in Islamic succession law and male primogeniture in African customary law in the context of South African secular law

Abstract

The 2:1 male-preferential rule in Islam and the male primogeniture rule in African customary law are often seen in modern frameworks as gender-discriminatory succession laws that perpetuate inequality. Certain social and legal contexts influence the application of these laws and their justifications. The objective of this article is to highlight these justifications and the application of the relevant inheritance rules to counter gender-inequality misconceptions. It also aims to explore the reformative influence that modern legal frameworks have had on these rules, aligning them with contemporary values of equality. The article is relevant as it contributes to the discourse on legal pluralism in South Africa while focussing on the compatibility between Western and non-Western legal frameworks. A comparative study of Shari’ah law, African customary law, and South African secular law is used alongside relevant supporting primary and secondary sources. The findings indicate that the misconceptions about gender discrimination and inequality lie not with the inheritance rules themselves. Instead, these issues arise from the misinterpretation of these rules based on a lack of understanding of their cultural, religious or social contexts, as well as the prevalence of Western culture.