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This article locates current debates concerning the gendered access to collective land in Morocco within the context of a wider discussion about colonial legacy and the construction of customary law. The colonial construction of the ‘ethnic community’ and the institutionalisation of ‘customary law’ have preserved custom as a legal category, but they have rigidified its application by integrating it to the framework of positive law. The way in which customary law and positive law mutually shape each other has produced a state-sanctioned system of structural exclusion of women from collective land. Today, various actors are challenging this system of exclusion. To do so they bring back to life colonial legal categories by using ‘custom’ to new ends and by reproducing the distinction between customary regimes that oppress women and a positive law that promotes equality. In this context, the importance of the colonial legacy is often simplified, or even at times forgotten.