BEYOND BED AND BREAD: MAKING THE AFRICAN STATE THROUGH MARRIAGE LAW REFORM – CONSTITUTIVE AND TRANSFORMATIVE INFLUENCES OF ANGLO-AMERICAN LEGAL THOUGHT

Abstract

This article argues that marriage law reform in African countries formerly under British colonial rule has been as constitutive of the family as of the state; and that consequently, legal pluralism is an important tool of national and transnational governance. This is because marriage law has directly contributed to the economic modernization programs of colonial and postcolonial governments. For one, the colonial land law regime and subsequent expropriation of land drew inspiration from the sharp distinction colonial courts made between African and Western ideas of family. Later, postcolonial marriage law adopted a doctrinal template that embraced individual choice and liberty, thereby embracing the normative priorities of the law of the market and of international human rights law, even though it also adopted peripheral rules that gave courts wide interpretive discretion to rely on communitarian principles to arrive at just outcomes in marriage law disputes. This conceptual template has been widely accepted by postcolonial courts. It has enormous potential to create family law regimes that have a national identity since it departs from strict adherence to customary law and western-derived law, instead making possible creative combination of elements of both. Courts are then able to forge national family law regimes that advance the state’s economic modernization program while retaining the power to respond to moral dilemmas it produces. As such, legal pluralism, exemplified by almost all African family law regimes is not just a temporary characteristic of non-Western society but a tool for national and increasingly of transnational governance.