Gender and Nation-Building: Family Law as Legal Architecture

In considering the legal architecture of nation-building, we might most readily think of public law as our subject insofar as it governs the relationship between the individual and the state, and establishes the institutions of governance and the sources and limits of their power. The essays in this volume, in large part, track this instinct in that they concern themselves with fields such as constitutional law, criminal law, and public international law. Closer to the margin of public and private law are essays dealing with various dimensions of the modern regulatory state, including banking and commercial transactions. In each of these fields of law, the connection between the legal framework and the state structure is reasonably clear.

This is perhaps less true for family law. Although the discipline of family law in the western legal tradition transcends the public/private law boundary in many ways, it is the argument of this Essay that family law, in the private law sense of defining the rights and obligations of members of a family, forms an important part of the legal architecture of nation-building in at least three ways. First, access to the resources of the nation-state devolves through biologically and culturally gendered national boundaries, both reflecting and reinforcing the differential status of men and women in the sphere of the family. Second, the social institution of the family and the legal framework that defines it embody power relations that, in turn, help to shape the larger polity.

Hence, laws governing marriage, divorce, marital property, maintenance, child custody, child support, cohabitation, inheritance, and illegitimacy define not only power and status within families, but also within civil society, the market, and the political sphere. Third, the symbolic family, and sometimes the law defining it, may figure in important ways in the struggle for national identity that often takes place contemporaneously with nation-building.