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An independent legal profession is said to be "the bulwark of a free and democratic society." It is also said that a high measure of independence of mind and action by legal actors is necessary for the maintenance of the rule of law. However, too often, there is the allegation (within the sociological literature in particular) that the legal profession has used the concepts of independence and the rule of law as a shield or cuirass rather than as a sword. The image of lawyers representing unpopular clients fearlessly and advocating on behalf of unpopular causes, so as to uphold legal rights, is replaced with images of lawyers using these self-same concepts to preserve the status quo, favor those with high social status and pursue self-regulation for self-interest rather than for any so-called public interest. It is against this contested terrain that this Article looks at, from a comparative perspective, regulatory efforts in both the United States and South Africa in untraditional and controversial ways to address what these countries perceive as societal failings.

Mayelane v Ngwenyama 2013 4 SA 415 (CC) is arguably the most important judgment concerning the recognition of customary marriages in recent times. This article attempts to unpack some of the many issues that arise from the case, namely: (a) the practical difficulties associated with ascertaining living customary law and the problems of identifying legal versus social norms; (b) the meaning of consent as a requirement of a customary marriage; (c) the implications of the case for equality between multiple wives in a customary marriage, and as between wives across customary marriages of different cultural traditions; and (e) the implications of the case for equality considerations more broadly. While the authors sympathise with the court in respect of the complex decision before it, it questions the Court's method and result, specifically for the equality rights of a second (or further) "wife" in a Vatsonga customary marriage. The authors suggest that the issues should be put to democratic deliberation by the legislative arm, rather than leaving courts in the unenviable position of having to decide these matters.

Mayelane v Ngwenyama 2013 4 SA 415 (CC) is arguably the most important judgment concerning the recognition of customary marriages in recent times. This article attempts to unpack some of the many issues that arise from the case, namely: (a) the practical difficulties associated with ascertaining living customary law and the problems of identifying legal versus social norms; (b) the meaning of consent as a requirement of a customary marriage; (c) the implications of the case for equality between multiple wives in a customary marriage, and as between wives across customary marriages of different cultural traditions; and (e) the implications of the case for equality considerations more broadly. While the authors sympathise with the court in respect of the complex decision before it, it questions the Court's method and result, specifically for the equality rights of a second (or further) "wife" in a Vatsonga customary marriage. The authors suggest that the issues should be put to democratic deliberation by the legislative arm, rather than leaving courts in the unenviable position of having to decide these matters.