Thursday, October 30, 2008

Tsoukala on Marrying Family Law to the Nation

Marrying Family Law to the Nation is a new paper by Philomila Tsoukala, a Visiting Associate Professor at Georgetown University Law School. Here's the abstract:
This paper revisits the creation of the modern Greek state in the early nineteenth century and the role that family law played in the process of generating a sense of national identity. According to the mainstream legal historical narrative Greeks managed to survive as a nation during the Ottoman years thanks to the consistent application of family law rules by the Orthodox Church. This paper reinterprets the standard narrative as the result of the institutional compromises struck between the Orthodox Church, westernizing revolutionary Greeks and local leaders at the moment of creation of the Greek state, rather than a reflection of the legal realities on the ground. It argues that competition between the Orthodox Church, Islamic judges, and local secular leaders on precisely the issues that the Church considered under its exclusive jurisdiction (marriage, divorce, inheritance) had resulted in a highly fragmented legal picture right before the creation of the Greek state. Despite this fragmentation, the first regent for judicial affairs of the nascent state, Bavarian Georg Ludwig von Maurer, argued in his seminal book "The Greek People" that Greek Orthodox canon law had been applied consistently throughout the territories of the Greek state and that the Greeks has survived as a nation partly thanks to the efforts of the Church which saved the Greeks from 'barbarism'. The institutional compromise he then fashioned for Church/State relations rewarded the former, by making it an important institutional player on marriage and divorce in the new state.
The last part of the paper discusses the importance of revisiting the history of the state's role in generating narratives of national identity for European politics, at a moment when the distribution of resources between European citizens and non European, often Muslim, non citizens living and working in Europe is increasingly justified or tacitly accepted through appeals to notions of concrete, coherent national identities. The dynamics of relying on a named or unnamed uncivilized 'other' against whom identity formation takes place seems to be repeating itself today with a vengeance in the case of Turkey's accession to the European Union, and the thinly veiled civilization vs. barbarism discursive themes emerging there. Not accidentally, they are heavily concentrated in the field of family law. Without suggesting that revisiting history will solve current political problems by deductive magic it can at least help push against the more essentialist, 'clash of civilization' versions of identity that have remade their appearance in political discussions in Europe.