Law, family and dispute resolution: Negotiating justice in a plural legal context

This dissertation is a socio-legal inquiry into the relationship between law, family and culture in a legally plural postcolonial African society. I seek to explore the interaction of formal and non-formal normative orders in the context of the resolution of family disputes in Kenya. The study is guided by the theoretical approach of legal pluralism, an approach that recognizes and embraces the plurality of normative orders in society.; Mainstream analyses of the relationship between customary law and state law in Kenya are characterized by dichotomization of the two systems, which are viewed in terms of conflict and competition. Accordingly, African families are assumed to conform to one of two idealized conceptions of family, either the traditional family which is governed by customary rules, or the modern family which is structured according to rules of statutory or English common law. Using a historical and contextual approach, I seek to challenge this dichotomy by uncovering the processes by which the African family has been constructed and reproduced. I focus on the tension between continuity and change in the context of socio-economic transformation, and argue that the African family in Kenya has not conformed to either a purely traditional or modern model, but has developed in unique configurations that encompass both.; The dissertation also highlights the ambivalences and contradictions of colonial legal policies, and their reproduction in the post-colonial era, in relation to family and marital relations. The adverse impact of these policies in the dispute resolution context, particularly in relation to women, is considered. Through a field investigation of the operations of non-formal dispute resolution structures in a localized setting, I examine the complex interactions between formal and non-formal justice systems, paying particular attention to the institutional, personnel and normative links between these systems. An overriding concern of the dissertation is the potential of non-formal justice systems for realization of justice, particularly for women in the context of family dispute resolution. I therefore consider alternative ways of conceptualizing relations between formal law and custom that go beyond the existing dichotomies and offer more potential for justice.