Document Type

Article

Publication Title

Maine Law Review

Volume

60

Publication Date

2008

Keywords

Public v. Private, Nation-State, Marriage, Divorce, Child Support, Inheritance, National Identity, Symbolic Family

Abstract

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.

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