Early Marriage as A Violation of Human Rights: A Proposal for Constructive Engagement in Non-Western Communities

Author:Judy Hale Reed
Position:Duquesne University School of Law
Pages:151-217
SUMMARY

Although most countries have instituted minimum age laws for marriage, so that legal marriage can only occur after an age set by law, early marriage is still practiced for tradition, control, security, and other reasons. In other words, the phenomenon of early marriage is not unusual, but has become more of an issue in the modern era. In the first place, this article sets out to assess the harms... (see full summary)

 
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e Indonesian Journal of International & Comparative Law
ISSN: 2338-7602; E-ISSN: 2338-770X
http://www.ijil.org
© 2014 e Institute for Migrant Rights
rst published online 13 November 2013
151
Note. e author lived and worked in the Republic of Moldova for a total of six years
between 1999-2009, including two years as the Anti-Tracking and Gender Adviser
for the OSCE Mission to Moldova. is article grew out of a paper for Professor Susan
Hascall’s Emerging Legal Systems course at Duquesne University. e author is grateful
to Professor Hascall and to the editors at  I J  I
 C L for their remarks and suggestions.
Early Marriage as A Violation
of Human Rights:
A Proposal for Constructive Engagement in
Non-Western Communities
J H R
Duquesne University School of Law
E-mail: judy.hale.reed@gmail.com
Although most countries have instituted minimum age laws for marriage, so that
legal marriage can only occur after an age set by law, early marriage is still practiced
for tradition, control, security, and other reasons. In other words, the phenomenon
of early marriage is not unusual, but has become more of an issue in the modern era.
In the rst place, this article sets out to assess the harms of early marriage by using
legal anthropology and critical feminist intersectional theory as its theoretical lenses.
Moreover, in light of international law, early marriage is a clear violation of uni-
versal human rights norms. ere is an urgent need to develop a viable approach to
reconciling the tensions between the preservation of the right of communities to social
and cultural autonomy on the one hand, and the protection of individual human
rights on the other. By using the incidence of early marriage in Romanian Roma,
or “Gypsy,” communities as a case study, this article proposes respectful, culturally
competent ways to reduce early marriage by engaging communities.
Keywords: Children’s Rights, Human Rights, Feminism, Legal Pluralism, Foreign Laws,
Gender Studies, Cultural Relativism, Critical Intersectional Feminist eory, Legal An-
thropology, Women’s Rights, Legal Pluralism, Roma, Gypsy, Cultural Relativism.
The Indonesian Journal of International & Comparative Law Volume I Issue 1 (2014) at 151–217
Judy Hale Reed
152
Every year, an estimated 14 million girls are married before they turn 18. Robbed
of their childhood, denied their rights to health, education and security.
Girls Not Brides: e Global Partnership to End Child Marriage1
Exercis[ing] some restraint before interfering with others is of benet to any culture,
the Gypsies’ as well as the culture in which we live.”
Walter O. Weyrauch2
I. Introduction
is article sets out to understand why early marriage is a practice that
makes sense within the communities that practice it, and how to use that
knowledge to respectfully support communities to raise the age of mar-
riage where early marriage is practiced. Early marriage takes place for a
broad range of rational and seemingly irrational reasons, sometimes for
the child’s best interest, and sometimes the good of the family is the cen-
tral consideration. Early marriage occurs in both more and less developed
places around the world, and can increase and decrease, or decrease then
increase, over time.
By using legal anthropology, legal pluralism, and critical feminist
intersectional theory to understand this phenomenon, this article looks
at how to help communities raise the marriage age. Legal anthropology is
helpful to understand dierent cultures and laws, and how they function.
Legal pluralism is useful for understanding how multiple legal systems
coexist, in varying degrees of conict and collaboration. Finally, critical
feminist intersectional theory looks at multiple forms of oppression to
help the reader understand the complexity of a legal (or socio-legal) prob-
lem in order to develop realistic, operational solutions.
Overall, this article hopes to support and advance critical feminist
intersectional theorists’ work in and about marginalized and non-West-
ern communities, including Romanian Roma communities, in order to
1. G N B: T G P  E C M, avail-
able at http://www.girlsnotbrides.org/ (last visited Aug. 3, 2013).
2. W O. W, G L 269 (2001).
Early Maariage as A Violation of Human Rights
Judy Hale Reed
153
increase culturally competent and sustainable social change, to make our
world a safer and better place to live.
A. Map of Article
First, to frame the issue, Part II establishes that early marriage is widely
practiced in many contexts and cultures, and briey examines rationales
for early marriage in cultures where it is practiced. Early marriage is not
rare or isolated, nor is it conned to less developed places, although rising
income and education, urbanization, and socio-economic stability cor-
relate with higher marriage ages.
Next, Part III uses three legal theories to deconstruct the phenom-
enon of early marriage: legal anthropology, legal pluralism, and critical
feminist intersectional theory. is part begins with an introduction to
the legal anthropology concepts of insider (“emic”) and outsider (“etic”)
perspectives for a comparative analysis. Next is legal pluralism, or the
analysis of coexisting law or law-like systems,3 that is, dierent and some-
times conicting laws or law systems within one socio-political space.4
Once these two theories are laid out as a foundation, the article presents
intersectional feminist analysis as an ideal framework to understand in-
terconnected forms of oppression in order to respectfully engage in cul-
tures to support sustainable change.
Bringing in the legal norms and standards within which these theo-
ries operate, Part IV examines the harms of early marriage from a human
rights perspective, and summarizes the international human rights stan-
dards that are meant to protect girls.
Laying the groundwork for the analysis in Parts VI and VII, Part
V presents a case study of Romanian Roma (“Gypsy”)5 culture, and ear-
3. Susan Carey & Gary Mundy, Informal Systems of Justice: e Formation of Law
Within Gypsy Communities, 45 A. J. C. L. 251, 251-2 (1997) (discussing
Weyrauch & Bell’s, infra note 28, presentation of the concept of “autonomous
lawmaking,” the use of informal controls to maintain social order through social
shame and for extreme cases relying, for example, in some Roma communities on
a tribunal system of justice, and in other communities relying on bloodfeuds for
conict resolution).
4. Franz von Benda-Beckman, Citizens, Strangers, and Indigenous People, 9 L 
A. 1 (1997).
5. “Gypsy” is widely considered a pejorative term for several distinct and sometimes

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