Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India (14 page)

i. Cases of Extensive Early Reform. In the countries that saw the most extensive early personal law reform, Turkey and Tunisia, political forces that articulated distinct discourses associated with different policy agendas emerged in response to Ottoman and French rule, and were initially represented in the new regimes. The early Turkish republic included not only the faction led by Mustafa Kemal Pasa (Atatürk) that favored extensive Westernization and secularization, but also Turkic cultural nationalists inclined to revive certain pre-Islamic Turkish cultural norms as they imagined them, and to build links with other “Turanist” groups in Central Asia, and modernist Islamists who wished to change society as suggested by their reconstructions of Islamic traditions. In including secularists who wished to limit the public role of religion as well as reformers that valued various religious norms, Turkey was similar to some regimes that changed personal law less, such as those of postcolonial India, Indonesia, and Egypt (although the latter regimes included more conservatives). The Neo-Destour Party that led the Tunisian nationalist movement through the last two decades of colonial rule and assumed power from the French included not only the Islamic modernists led by Bourguiba
and based among urban groups, but also pan-Islamists closely connected to religious elites and rural lineages. It included fewer secularists and at least as many conservatives as the contemporaneous Egyptian, Pakistani, Indian, and Indonesian regimes, which reformed personal law less.

These factions could have coexisted longer, but this would have required compromise regarding social policy and personal law. In Turkey, a viable compromise could have involved the import of fewer Western institutions, the greater accommodation of indigenous cultures and perhaps also religious norms and symbols, and aspects of Ottoman personal law. The main ideologue of Turkic cultural nationalism, Ziya Gökalp, imagined a pre-Islamic Turkic family life organized around monogamy, bilateral kinship, and somewhat egalitarian norms, which could have inspired the incorporation of the country’s more egalitarian customs (real and imagined) into religious law, as happened in Indonesia. Certain Islamic ideas developed through then-current innovative religious hermeneutics could have inspired extensive Islamic law reforms along the Tunisian lines. In Tunisia, the very different preferences of the Neo-Destour Party’s modernists and pan-Islamists regarding personal law meant that their cohabitation would have required that both sides accept the kind of moderate reforms seen in countries such as Egypt, India, and Indonesia.

However, the Turkish and Tunisian regimes changed family law far more. The Kemalist and Bourguiba factions of the respective regimes based their strategies on particular modernist nationalist visions, and to give them full effect, they severed their links with former allies who were more attached to religious institutions, predominant interpretations of religious traditions, or aspects of lineage power. They used the prior autonomy of the states they inherited to increase state control over social institutions considerably and to repress their opponents.

Other features of the social vision of ruling elites also influenced the change of personal law in Turkey and Tunisia, making it more extensive than in India. The Turkish regime had fewer members who valued conservative religious norms, the Ottoman regime had given public religion and the religion of the majority much greater roles than India’s colonial state had, and the Turkish republican leaders were determined to limit various Ottoman legacies (in contrast with Indian policy makers’ ambivalence about British colonial legacies). Moreover, the dominant leader of the Turkish republic (
Atatürk) used the popularity he won by having led the Turkish War of Independence to gain greater leeway to shape policy than his Indian counterpart (Nehru) enjoyed. His social vision was also far more elitist, devaluing both dominant religious institutions and various forms of popular religion, and his inclination to establish an authoritarian regime made it less crucial to maintain broad support.

That Nehru was far more inclined than Ataturk to consolidate democracy, maintain broad support, accommodate various religious practices and aspects of popular culture, decentralize power, and promote social change gradually was partly the result of these leaders’ institutional contexts and earlier political experiences. Nehru became the leader of an institutionalized party that had existed for over six decades and that had support across ethnic, religious, class, and urban/rural boundaries, considerable ideological diversity, a culture of compromise, experience of participation in representative institutions, and excellent prospects of consolidating its dominance in a competitive multiparty democracy. Atatürk’s role as a military officer shaped his political vision. When the republic was founded, Atatürk led one of the intensely competitive factions of the newly formed Republican People’s Party, which had support primarily in cities and among the Turkish majority, weak institutions, and an uncertain trajectory. These circumstances reinforced Nehru’s inclination to consolidate democracy and Atatürk’s to build a centralized dictatorship. These inclinations led Nehru and most other Congress Party modernists to compromise with conservatives over personal law, while leading the Kemalists to rapidly secularize family law even though this eroded the regime’s support and impaired political stability.

The leaders of postcolonial Tunisia, much like those of the early Turkish republic, did not prioritize either the formation of democracy or gaining broad support. This made them willing to expel conservatives from the Neo-Destour Party and establish a one-party dictatorship, in a process that was eased by the sharp factional boundaries in the party. The greater fluidity of factional alignments in the Congress Party reinforced the preferences of the modernists to craft careful compromises with conservatives.

Both the Turkish and the Tunisian regimes introduced extensive social reforms, but framed them differently in crucial respects—as part of a project of secularization in Turkey, but as a way to revitalize public Islam in Tunisia.
This was because ruling elites adopted Western precedents far more in Turkey. Even modernist Arab nationalists such as Bourguiba gave religious identity and Islamic law considerable importance in their constructions of nationhood, to overcome colonial hegemony and the associated devaluation of Islamic public cultures.
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The Turkish republic emerged, by way of contrast, mainly in opposition to the indigenous Ottoman rulers who were closely associated with the
ulama
and their institutions. As a result, its leaders did not feel as pressed to uphold indigenous culture, and were more inclined to embrace Western experiences, including the separation of religion and state in many respects (uneasily combined with state control over various religious institutions), to distinguish themselves from the Caliphate. Reform initiatives based on religious and other indigenous traditions were also strong in early twentieth-century Turkey, but lost out to the Kemalists.
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The different ways in which reform was framed in Tunisia and Turkey influenced the content of family law and induced a divergence in state-society relations. Statutory law gave women greater inheritance rights and autonomy from their husbands in Turkey than in Tunisia, as we saw earlier. But because public religion was important in both societies, the religious framing of reform in Tunisia contained resistance more quickly, gained the state courts greater acceptance, and enabled greater regime stability than rapid state-led secularization did in Turkey. This was the case although many
ulama
and conservative Islamists sharply contested the interpretations of Islamic law incorporated in the Tunisian reforms. The Neo-Destour Party was able to maintain its dominance over Tunisia without using much repression from the mid-1950s (when its conservative wing was suppressed) until popular protest ended the rule of its successor party, the Rally for Constitutional Democracy, in 2011. The rapid reduction in the accommodation of religious norms and religious symbols, the suppression of certain religious institutions, and the imposition of state tutelage over others made the Turkish republic much less popular. As a result, through the first decades of the republic many citizens approached community courts, particularly in rural areas, and supported movements that favored the greater acceptance of public religion even later. Moreover, these conditions limited the popularity of the Republican People’s Party, which led the country through the first republican generation, and the party lost power whenever free elections were held, to parties that
aimed to accommodate religion more in public life. This in turn led the military to overthrow these elected governments several times and rule directly, to curb religious movements and public expressions of religiosity, and maintain the form of secularism adopted in the 1920s.

ii. Cases of Moderate Reform. The modernist leaders who led the early postcolonial regimes of Senegal, Libya, Egypt, Jordan, Iraq, Iran, Pakistan, India, Sri Lanka, Malaysia, Indonesia, and Thailand conceived the nation significantly along culturally indigenous lines. This made them unwilling to adopt as many Western institutions as in Turkey, and impelled those that adopted some form of secularism (in Senegal, Egypt, India, and Indonesia) to also accommodate various public roles for religion. Moreover, the way that Tunku Abdul Rahman, the United Malays National Organization, and the National Alliance in Malaysia; Leopold Senghor and the Socialist Party in Senegal; the Hashemite dynasty in Jordan; the Gaddafi regime in Libya; the Ba’ath regime in Iraq; and the major Sinhalese parties in Sri Lanka balanced considerations of authenticity and modernity meant that they aimed for only moderate cultural changes.
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Sukarno and many of Indonesia’s Nationalists, Gamal Abdel Nasser and Egypt’s Free Officers Regime, and Nehru and certain other modernists in India’s Congress Party wished to introduce more extensive social and personal-law reforms, for which they could count on the support of various mobilized groups. However, they also embraced encompassing visions of their respective nations, which reinforced their inclination to maintain broad coalitions. Many Indonesian nationalists considered folk, Hindu, Buddhist, Islamic, and Christian traditions to have shaped national culture. In a similar vein, India’s pluralist nationalists upheld a national culture that was a composite of the country’s various religious and ethnic cultures, and the Free Officers regime espoused a vision of an Arab nation including the country’s various religious groups. Such inclusive visions dissuaded the Egyptian and Indonesian regimes from forming Islamic states. Further, to maintain broad coalitions, the modernist leaders of India, Egypt, and Indonesia tempered their transformative ambitions given that some of their allies preferred to retain various forms of social dominance, including gendered and patrilineal patterns of family authority. This discouraged the introduction of uniform family laws
in Egypt and India, motivated the reversal of certain reforms in Egypt, and limited the promotion of egalitarian customs in Indonesia until the 1970s.

iii. Cases of Limited Reform. Among the countries that saw limited personal-law reform at least until recently, Lebanon is an illuminating case. The maintenance of distinct personal laws under the jurisdiction of community courts was an important aspect of the Grand Alliance that gave Lebanon’s sects political representation. It cemented alliances between clan leaders and religious elites, and was an area of consensus among the political elite of various sects between whom sharp conflicts emerged over the terms of sectarian representation, resource distribution, and the definition of the nation. The Lebanese National Movement proposed to change the personal laws as part of its efforts to build a cohesive nation and a strong state, but its defeat during the civil war doomed this initiative. The situation differed in Morocco; the focus of Moroccan nationalism on the monarchy gave the kings considerable leeway, which they used to maintain colonial personal law soon after independence as they depended heavily on lineages, but to change it extensively in 2004 in response to the growth of civil society mobilization.
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The socialist ideology of certain members of the FLN that formed Algeria’s one-party state inclined them toward personal-law reform, and similar features of the Ba’ath Party suggested this possibility when it seized power in Syria in the 1960s. Reform did not happen in Algeria because the FLN initially wanted to retain its links with conservative lineages and was later reluctant to provoke opposition to reforms, which might strengthen the Islamist opposition. Neither did it happen in Syria because the faction of Hafez al-Assad, drawn largely from the military and the Alawi sect, expelled many socialists from the regime, lost support among the Sunni majority and Christians, and was reluctant to narrow its coalition further through risky reforms. The Syrian experience contrasted with that in Iraq, where the Ba’athists under Saddam Hussein interpreted their socialist heritage to require significant changes in religious practice and family life, and did not allow the restriction of their support mainly to a minority sect (Arabic-speaking Sunnis) to deter them from personal-law reform.
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Thus, discourses of the nation and its traditions were important foci of competition over regime composition and state-led social change in various
societies, and specifically influenced multiculturalism and personal law. The debates over regime trajectories gave considerable attention to personal law in Turkey, Tunisia, Lebanon, and Indonesia, and some attention to it in countries such as Morocco, Algeria, Libya, Egypt, Jordan, Iraq, Iran, Pakistan, India, and Malaysia. In Syria, Sri Lanka, Thailand and the Philippines, political elites attended less to personal law, but their debates over nation formation influenced personal law.

iv. Minority Law Reform: The Indian and Indonesian Experiences. Nationalist discourses and religious discourses affected not only the laws governing religious and ethnic majorities, on which the earlier discussion focused, but also those that applied to minorities. A comparison of the Indian and Indonesian experiences highlights their effects on minority laws. Both postcolonial regimes had support among the different religious groups in their societies, and among groups whose preferences varied about the public role of religion and the specific religious norms to be recognized.
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Wishing to retain such support and limit secessionist inclinations among their religious minorities (and in Indonesia, among certain Islamists too), they retained various multicultural colonial legacies, introduced new forms of cultural accommodation, and adopted versions of secularism that accepted extensive public roles for religion. Official discourse advocated respect for different religions and depicted the nation as based in various cultural traditions; the governments retained diverse personal laws with moderate changes. Amidst these similarities, the changes in India were mainly in Hindu law, while changes were made in many of Indonesia’s personal laws through the first postcolonial generation. Moreover, Islamic law was changed more extensively in Indonesia.