The Changing Family: Family Forms & Family Law by J. Eekelaar & T. Nhlapo (Book Review) [2000] JSPL 21; (2000) 4 Journal of South Pacific Law

Book review: Eekelaar, J. & Nhlapo, T.
The Changing Family - Family Forms & Family Law

by Nena Fay Hicks

‘The Changing Family – Family Forms and Family Law’

edited by John Eekelaar and Thandababtu Nhlapo,

Hart Publishing, 1998.

ISBN 1-901362-99-X

Pages: 634

This book has immediate appeal for anyone interested in Family Law in the South Pacific region, not because it deals with the region (it doesn’t), but because it examines many of the issues pertinent to Family Law here. It contains some fine examples of socio-legal scholarship, historical analysis and comparative legal research and the quality of the contributions makes the typographical errors in the text bearable.

Emerging from the Ninth World Conference of the International Society of Family Law held in Durban, South Africa, the book examines the theme of ‘Changing Family Forms: African Themes and World Issues’ and draws on experience from diverse jurisdictions. For example, Part III, which deals with ‘The State and Legal Pluralism’, contains ten articles drawn from African, European and Asian contexts.

The relevance of this book for the USP region comes, not only from its largely developing world context, but from its general approach to law and legal research. For example, legal pluralism, human rights, customary law, constitutional law, ideological changes and law reforms are discussed, predominantly but not exclusively, from within a post-colonial context. The issues, reflected in such titles as - "Why I can’t teach Customary Law" (Stewart), "Family Law in Namibia: the Challenge of Customary and Constitutional law" (Hinz) and "African Customary Family law in South Africa: A Legacy of Many Pasts" (De Koker) - will resonate with those of us grappling with laws and legal systems affecting South Pacific communities today.

A brief description of the six parts will further demonstrate the relevance of this book. In Part I – ‘The Changing Face of Family Law in the Context of Social and Ideological Change' - Andrew Bainham provides a good summary of the changes which have occurred in the Family Law landscape in England. He demonstrates that Family Law, which cannot rely on the traditional coercive powers of other laws, seeks to influence family life at the conceptual level. His examples, such as the legitimate/illegitimate distinction, make for a thought provoking and challenging look at law reform, however we may wish to conceive of the link between societal change and law reform.

Anders Agell also examines this theme in the Swedish context. Other chapters of particular interest for those interested in the South Pacific region are by Oluwatoyin Ipaye who looks at the changing pattern of family structure in Nigeria and M.O.Hinz who looks at the family law as challenged by customary and constitutional law in Namibia.

Part II is titled, ‘The Dynamics of Legal Assimilation of Changes in Social Norms". It deals with the administration of the law in response to changes in social norms and structures.

In his chapter on the proposed abolition of de facto unions in Tanzania, Rwezaura explains how some judges have used the legislation to deal with "complex issues of legal pluralism and social change" (176). This chapter is of particular interest as it describes a jurisdiction where "marriage" takes several forms:- marriage according to colonial English laws, marriage according to the traditional African model (involving the union of two families) and de facto unions. These forms, as well as Hindu and Islamic systems of family law, are also noted by Kabeberi-Macharia and Nyamu in their chapter on de facto unions in Kenya.

Both these chapters look at the law related to de facto relationships and the administration of that law. The former chapter is particularly interesting for its comments on the recognition of customary marriages by the courts. What is discussed is that relationships recognised by the State affect all kinds of rights, such as property interests and inheritance rights. In a different context, the issue of equality and inequality within Australian families, whether the parties are married or not, is discussed by Bailey-Harris.

It is instructive, and reassuring, to consider the degree to which similar problems arise in such different contexts. The comparative approach implicit in these contributions provides us with some possible solutions or approaches for our local regions, as well as providing support for different family forms in our own pluralist societies.

In her chapter titled ‘Why I Can’t Teach Customary Law’, Stewart makes the point that, historically, law curricula in the Southern African region has incorporated African customary law as it appears within the formal legal system, i.e. within statutes or as discussed in cases. Her preferred approach is to view customary law as a "dynamic living system" which "should be approached as a system of cohesive laws with underlying guiding principles that need to be identified, recognised as a source of jurisprudence and their content sensitively explored" (217). Stewart goes on to discuss the critical skills that are required by such an approach.

Another perspective on this issue can be found in the article by Koker in Part III titled ‘African Customary Family Law in South Africa: A Legacy of Many Pasts’. Koker concludes that there is an invented system of African customary law which discriminates against women. Certainly Ranger (‘The Invention of Tradition on Colonial Africa’ in E. Hobsbawn and T. Ranger (eds), 1983, The Invention of Tradition, Cambridge University Press, 211-262) supports the notion of ‘invented’ law although whether the result can be seen as an invention or a mutation is debatable. Whatever the process, it seems that the status of women in law remains inferior to that of men.

Other topics discussed in Part II include; reducing discretion in family law in Australia and the United Kingdom (Dewar); and changing perceptions of family forms in Germany and Tanzania (Jones-Pauly). The issue of judicial discretion remains an important theme throughout the book.

The theme of pluralism and the state is specifically developed in Part III which begins with an important chapter by Freeman titled ‘Cultural Pluralism and the Rights of the Child’. This persuasive defense of the concept of pluralism foreshadows chapters on family law in New Zealand (Atkin & Austin), South Africa (De Koker, Zaal, Sloth-Nielsen & Van Heerden, Goolam, Steyn), USA (Wardle, Katz) and Scandinavia (Lund-Andersen).

Using a number of child abuse cases as illustration, Freeman argues that pluralism is the only framework to be used. The other choices are either cultural relativism or monism, both of which are undesirable in a multicultural society.