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Thus, although there are a small number of so-called non-negotiable norms, the vast majority are viewed and given substance contextually, which is seen as fundamental to the Tswana.
Comaroff and Roberts describe how outcomes of specific cases have the ability to change the normative repertoire, as the repertoire of norms is seen to be both in a state of formation and transformation at all times.
Regarding the invocation of norms in disputes, Comaroff and Roberts used the term, "paradigm of argument", to refer to the linguistic and conceptual frame used by a disputant, whereby 'a coherent picture of relevant events and actions in terms of one or more implicit or explicit normative referents' is created.
In their explanation, the complainant (who always speaks first) thus establishes a paradigm the defendant can either accept and therefore argue within that specific paradigm or reject and therefore introduce his or her own paradigm (usually, the facts are not contested here).
In many, though not all instances, customary laws will have supportive court rulings and case law that has evolved over time to give additional weight to their rule as law and also to demonstrate the trajectory of evolution (if any) in the interpretation of such law by relevant courts.
A central issue regarding the recognition of custom is determining the appropriate methodology to know what practices and norms actually constitutes customary law. Hund argues that Hart's The Concept of Law solves the conceptual problem with which scholars who have attempted to articulate how customary law principles may be identified, defined and how they operate in regulating social behaviour and resolving disputes.
and they thus termed this the 'undifferentiated nature of the normative repertoire'.
Moreover, they observe the co-existence of overtly incompatible norms that may breed conflict, either due to circumstances in a particular situation, or inherently due to their incongruous content.
Internal aspects are the reflective attitude on the part of adherents toward certain behaviours perceived to be obligatory, according to a common standard.
Hund, however, acknowledges the difficulty of an outsider knowing the dimensios of these criteria that depend on an internal point of view.
For Hund, the first form of rule scepticism concerns the widely held opinion that, because the content of customary law derives from practice, there are actually no objective rules, since it is only behaviour that informs their construction.
It is not immediately clear that classic Western theories of jurisprudence can be reconciled in any useful way with conceptual analyses of customary law, and thus some scholars (like John Comaroff and Simon Roberts) have characterised customary law norms in their own terms. attempted to detail the body of norms that constitute Tswana law in a way that was less legalistic (or rule-oriented) than had Isaac Schapera.
Yet, there clearly remains some disagreement, which is seen in John Hund's critique of Comaroff and Roberts' theory, and preference for the contributions of H. They defined "mekgwa le melao ya Setswana" in terms of Casalis and Ellenberger definition: melao therefore being rules pronounced by a chief and mekgwa as norms that become customary law through traditional usage.
This allows for the accommodation of both as they now theoretically exist in different realms of reality.