Unofficial Family Law

AuthorAnn Laquer Estin
PositionAliber Family Chair, The University of Iowa College of Law
Pages01

Aliber Family Chair, The University of Iowa College of Law. My thanks to many colleagues at The University of Iowa and elsewhere for helpful conversations about these issues. Portions of this work have been presented at the International Society of Family Law North American Regional Conference in Vancouver, Canada in June 2007, a conference on "Multi-Tiered Marriage" convened at Pepperdine University in February 2007, and a panel organized by the AALS Sections on International Law and Law and Communitarian Studies in January 2007.

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I Introduction

Marriage and family practices around the world are embedded in a rich matrix of cultural norms, generated by legal rules, religious traditions, and social expectations. In homogenous societies, these different normative frameworks reflect widely shared values, reinforcing a common understanding of what marriage and family life should be. In more diverse societies, the range of normative variation expands, and individuals may face contrasting opportunities and constraints from official and unofficial norms of family behavior.

Some advocates of multiculturalism argue for accommodating the distinct values and traditions of religious or other minority groups through a formal legal pluralism in which governments would delegate aspects of state authority over marriage, divorce, and inheritance to separate legal authorities with power to apply their own law to members of their groups.1Legal pluralism, in this classic sense, is an artifact of empire and colonialism that has remained important in the contemporary world as a tool for managing deep and persistent cultural and legal differences in post-colonial nations such as India and South Africa.2 over the past generation, new migration patterns have brought these questions of multiculturalism and legal pluralism from the periphery to the centers of colonial power, where the debate provokes profound uneasiness among the mainstream or majority society. In the liberal democracies of Europe and North America, the legal system is understood to be based on universal and secular principles, affording the same rights to all citizens and rejecting any formal differentiation on cultural or religious grounds. The rules of official family law are far from neutral, however, and define a Page 452 culturally specific set of minimum requirements and expectations for family formation and behavior. This lack of neutrality creates different tensions for those whose practices or traditions diverge from the predominant legal and cultural norms.

There are important reasons to facilitate multicultural accommodation in family law. All individuals are embedded in families and communities, which are important to their stability, happiness, and to the successful nurture of the next generation. A multilayered approach to family regulation builds on the notion that many families have a complex identity and experience, shaped and defined by many different cultural, legal, and political ties. It supports a richer notion of citizenship in which individuals are understood not only in terms of their relationship to the state, but also as members of families and religious communities.

Greater accommodation of cultural and religious diversity is possible within the framework of our legal and political systems,3 but there are also important reasons to be cautious with this project. Throughout our history, and in many places around the globe, the definition of a separate sphere of private or family life has subjected some members of the community to the risk of violence or abuse that goes unnoticed and unaddressed by any effective means of social or legal control. It has also created the risk that these group members will be prevented from participating in the wider currents of education, employment, and citizenship. Both of these are risks that have fallen primarily on women and girls, who are simultaneously celebrated as the carriers of culture and excluded from opportunities to exit or shape their communities.4 In light of these risks, any policy that fostered multicultural or multi-tiered approaches to family law in the United States would have to include protections for vulnerable family members.5 In Page 453 circumstances of formal legal pluralism, the risks are substantial enough that state authorities would need to remain involved with families at some level in order to accomplish the important protective functions now performed by family law.6

Beyond the argument for a pluralized marriage law, other writers have argued for abolishing or "privatizing" marriage law.7 These proposals sometimes suggest that civil marriage should be replaced with civil union or another substitute regime, and sometimes suggest that a status approach should be entirely rejected in favor of general principles of contract, property, and tort law. Advocates of privatization sometimes argue that these alternatives would give greater scope to the unofficial law of religious communities.8 As with a pluralization of marriage law, however, the state would remain involved in family regulation in either of these scenarios. Most discussions never reach the more specific, pragmatic questions of how a system of pluralized or privatized marriage could be implemented.

While the multiculturalism debate has become a familiar one, much less attention has been paid to the legal pluralism that already flourishes in the United States. As anthropologists have observed, the official legal system in any society exists in tandem with other forms of social ordering.9 This understanding of legal pluralism recognizes the proceedings of an ecclesiastical court, rabbinic tribunal, or Muslim dispute resolution center as a form of law, even without the backing of any official state authority. Once our lens widens to include this broader landscape of legal phenomena, other practices come into view, including religiously based marital counseling or prenuptial agreements, as well as more informal social Page 454 ordering through community sanctions such as gossip or ostracism.10 The fact that these practices may have no secular legal effect serves to begin, rather than to end, the inquiry.11 One important insight of this work is that state law and legal institutions have only a limited degree of control over society, and do not necessarily dominate or displace other social systems.12Another is that individuals may be simultaneously subject to different systems of rules, and these systems may not be coordinated or hierarchically arranged.13

This Essay takes a different approach to the question of multicultural accommodation and legal pluralism in family law, beginning with the dynamics of unofficial family law as it is already practiced in the United States. Ethnographic research that would provide a rich description or understanding of these practices has not been readily available, but other evidence indicates that different modes of family regulation operate here.14Official case reports in a number of states reflect the ongoing importance of religious legal traditions, including Jewish and Islamic regulation of marriage and divorce.15 Websites and other literature promote the services of alternative tribunals for resolving disputes within the context of particular religious communities.16 In the popular media, stories of polygamous Page 455 households have become a staple of news and entertainment.17 Beyond the United States, there is a more extensive literature on unofficial family law, particularly with respect to Muslim communities in Britain.18 In Australia, the Law Reform Commission has studied questions of legal pluralism and multicultural accommodation,19 and in Ontario, the prospect of "Sharia arbitration" in family-law matters has generated significant public attention and debate.20 From these sources, it is apparent that religious law continues to serve important purposes for many Roman Catholics, Jews, and Muslims, operating as an unofficial complement or alternative to the law of the state. The evidence suggests that members of these communities generally follow official marriage and divorce laws in order to have their family status recognized by the state, but that they also utilize unofficial law mediated by ecclesiastical courts, rabbinic tribunals, or Muslim dispute-resolution centers.

In the Sections that follow, this Essay considers the interaction of official and unofficial family law in three situations. Part II addresses marriage celebration, a point at which official and unofficial law have similar goals and are often closely interwoven. Part III considers the dissolution of marriage, a more complex problem that generates significant conflict between normative systems, resulting in an often intricate interaction of official and unofficial law. Part IV centers on the substantive regulation of marriage. Here, official law functions as a gatekeeping tool to define the shape of both family life and the broader social and political community. To the extent that official law deems unacceptable certain family or marriage Page 456 practices that unofficial norms recognize, individuals or communities with those practices are kept outside or at the edges of law and society. Thus, although polygamy is permitted in Islam, it may be punished by the state. The practice of polygamy nevertheless continues underground, regulated largely by custom or unofficial law, leaving family members outside the boundaries of protections that are ordinarily available under official law.

Many writers have discussed the parallel...

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