Law Text Culture


Feminist scholars and critical theorists have critiqued marriage as a tool for the creation of a private sphere in which women are subordinated to men, and have critiqued the public/private dichotomy (Olsen 1983, 1985, Pateman 1988, Smart 1992, Seigel 1996). Marriage jurisdiction and law also participates in the creation of the public order, including the production of a homogenous nation opposed to cultural and racial difference, and embracing particular notions of gender (Cott 2000: 1–8, Franke 1999, Dubler 1998). Throughout the 19th century colonisation of Aotearoa New Zealand the jurisdictional boundaries of colonial marriage law were increasingly constructed and policed to assimilate the indigenous Maori people to a centralised jurisdiction while simultaneously producing race and gender difference within the nation-state. This boundary maintenance operated through a series of statutes and cases that participated in the production of a raced and gendered nation in two ways. First, this article discusses the cases and statutes that extended the jurisdiction of the colonial courts, and colonial marriage laws, over the indigenous Maori people, assimilating Maori to a centralised, homogenous set of laws and practices, and excluding Maori marriage laws and customs from that jurisdiction, and from the emerging nation-state. These laws were increasingly rigidly applied to fix the boundaries of the nationstate. Second, this article traces the racing and gendering of marriage jurisdiction as a process of the creation of internal difference within the emerging nation-state. As colonisation proceeded, Maori marriage laws and customs were increasingly excluded from the jurisdiction of the colonial courts by associating those laws and practices with pre-modern concepts such as concubinage and polygamy and opposing them to raced and gendered notions of civilisation and progress associated with the modern nation-state. The result was the production of a vessel of marriage jurisdiction that aspired to modernity, purity and whiteness and that was shaped and filled with Victorian notions of gender.