Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India (5 page)

Nancy Cott highlighted the connections between Lockean contractualism and the formation of modern American family law.
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She showed that analogies between membership in the American republic and partnership in a marriage, based on consent and perhaps official validation in both cases, reinforced the state’s promotion of monogamous marriages as well as connections between the potential to head a house hold and political rights. The rhetorical link between political rights and the possibility of heading a house hold, she demonstrated, supported the extension of the franchise to black men as well as the recognition and encouragement of marriage among African Americans after emancipation, and this in turn provided a normative and rhetorical basis for women to demand the franchise as well as greater authority in marital relations. Cott’s account alerts one to a variety of dimensions along which proposals to make family register, influencing mobilization and policy. However, the conception of the United States as a republic of equals did not determine the specific changes introduced in family law from the late nineteenth century on, such as the more systematic enforcement of heterosexual monogamy and the requirement of marriage registration; similar changes were introduced around the same time in some other predominantly Christian countries such as Britain and France, and somewhat later in certain predominantly Muslim countries such as Turkey and Tunisia, although the nation was imagined rather differently in these societies: in association with images of the Crown, the Anglican Church, and the “freeborn Englishman” in Britain; as republics born in opposition to the alliance of monarch
and religious institutions in France and Turkey; and in connection with Arab and Muslim identity, and with Islamic normative and legal traditions, in Tunisia.
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States did gain greater authority over the regulation of the family since the nineteenth century, as scholars such as Mary Ann Glendon and Lawrence Friedman show regarding the United States and Western Europe.
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However, they did not always wield this authority in ways that enabled the realization of individual liberty and social equality, as Friedman claims. Some of the changes they introduced in family law enabled these ends. This was the case regarding the decrease in the authority of family patriarchs over spousal choice, the increase in room to effect marital separation and divorce, the enhancement of the inheritance rights of women and younger siblings and of women’s custody and adoption rights, and the more extensive specification of the economic consequences of spousal separation and divorce, such as in the form of alimony obligations. But the growth in the scope and intensity of state regulation until the mid-twentieth century restricted the types of conjugal relationships citizens could enter, typically to monogamous heterosexual unions formally registered as marriages, and punished alternative forms of family and intimacy.

Michel Foucault and certain scholars who adopted his analytical approach showed that the changes in legal systems and socialization patterns that occurred in the West from the seventeenth century to the early twentieth century, and in various colonial and postcolonial societies since the nineteenth century, shaped conjugality along these lines. Foucault showed that modern Europe an discourses about the body, health, plea sure, and sexuality emerged from Christian practices like confession and penance, and shaped predominant norms as well as some alternatives to these norms. Some of his followers explored the formation of new forms of morality, classification, regulation and punishment in Asia, the Middle East, and Africa through the engagement of modern Western discourses with various indigenous religious and cultural traditions and forms of reasoning.
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In the latter societies, which experienced colonial rule or Western hegemony, the gaps between legal frameworks and public moral sensibilities were especially large. The engagement of Western and indigenous discourses with one another served both to orient citizens to colonial institutions or institutions influenced by Western prece
dents and to construct alternatives more suitable to these societies. These culturally rooted social visions accorded value to different conjugal and kinship practices; they varied in the importance they accorded the nuclear family rather than lineages, and the extent to which they promoted monogamy and patrilineal kinship instead of preexisting alternative practices. To the extent that states promoted monogamy and gave patrilineal bonds priority, they restricted the inheritance and maintenance rights of women and children who were involved in polygamous relationships or followed matrilineal customs, they motivated groups to modify these customs, and they marginalized these practices.

The transfer of authority over family life from lineages to states was far from complete in many postcolonial and postimperial societies, as we saw in the Introduction. States assumed such authority, empowered the nuclear family, and increased women’s rights through major changes in family law in Turkey and Tunisia, as well as in Morocco over the past decade. They barely disturbed lineage authority or changed personal law in Lebanon, Syria, Algeria, and, until recently, Morocco. And they increased the autonomy of the nuclear family and women in certain respects and maintained the authority of patrilineages and men in other respects in Indonesia, Malaysia, Bangladesh, India, Sri Lanka, Iraq, Jordan, Egypt, Libya, and Senegal. Moreover, further culturally grounded modernist reforms were introduced since the 1970s in Indonesia, west peninsular and nonpeninsular Malaysia, Bangladesh, India, Egypt, and Morocco, in contrast with the diminution of women’s rights in certain respects and the increase in the influence of religious elites through the same period in Iran, Pakistan, Sudan, Nigeria, east peninsular Malaysia, Afghanistan, and Aceh (in Indonesia) (see
Tables 1.1
and
1.2
).

Mounira Charrad explored the reasons for the complete transfer of authority over the regulation of family disputes and the promotion of the monogamous nuclear family in Tunisia—in contrast with the continued recognition of lineage authority in various respects in Algeria and Morocco, which shared with Tunisia the predominant influence of the Maliki
madhhab
(school of Islamic law) and the experience of French colonization.
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She traced the way family law was formed to the relations between states and lineages, the latter being the most important form of social organization in much of the Middle East and in various other regions too. Charrad claimed that Islamic law in its
precolonial and colonial forms upheld the authority of the patrilineage. She argued that the Moroccan Crown chose not to reform colonial Islamic law because it was closely allied with lineages; that the Algerian regime, which included groups with different relations with lineages and varying views about the main desirable family unit, was indecisive regarding family law until it chose to maintain much of colonial law in an unsuccessful effort to stem the growth of Islamist opposition a generation later; and that the Tunisian regime, from which urban reformists ousted rural conservatives soon after independence, consolidated the state’s prior autonomy by assuming the authority to resolve family disputes, authorizing the nuclear family, and increasing certain rights of women.

Charrad identified some reasons why states assumed the authority to regulate the family to varying degrees and used this authority in different ways. But her analysis did not clarify why the state used such authority to secularize family law in early republican Turkey and increased women’s rights to inheritance and autonomy from their husbands more than the reform of Islamic law did in Tunisia, although state-lineage relations were similar in the two countries. Moreover, it did not shed light on the ways in which nation and family were made in countries such as India and Indonesia, in which religious practices were more diverse than in North Africa, religious and language boundaries cut across one another, patterns of social organization and kinship varied across region and ethnic group, distinct religious law systems as well as norms and customary laws specific to region and ethnic group influenced family regulation, and important nationalist understandings engaged in different ways with various religious and cultural traditions. This is crucially because Charrad, like Cott, did not attend to cultural constructions of nations and understandings of the forms of modernity and types of traditions appropriate to build or maintain in particular societies.
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Explanations with greater comparative scope need to attend to the links between modes of imagining the nation and approaches to regulating family life.

As states became more centralized and presented themselves increasingly as representatives of nations from the eighteenth century onward, the relationship of states to religious groups, sects, ethnic groups, lineages, and families was often conceived with reference to the proclaimed character and destiny of nations. Gendered familial norms were important aspects
of nationalist narratives, which varied in how far they urged the retention rather than the reconstruction of predominant social practices, the practices they sought to retain, and the ways in which they aimed to change others. Discourses about nations, their constituent cultures, and the forms of modernity and variously reconstructed traditions appropriate for particular nations and cultural groups influenced projects to make citizens, recognize religious and other cultural groups, and shape the family. This book explores, in a comparative perspective, the formation of official nationalism, multiculturalism, secularism, and personal law in India, in mutual interaction.

II. NATIONS AND MODERNITIES

Postcolonial theorists explored the connections between the way nations are imagined and approaches to family life. They highlighted how the hegemony of colonial discourse pressed anticolonial nationalists to make claims to both modernity and cultural authenticity, as colonial discourse typically took rigid cultural traditions to drive much of local social dynamics, presented colonized societies as backward, valued certain forms of cultural distinctiveness, and upheld the preeminent value of modernity. Partha Chatterjee understood many features of anticolonial and postcolonial cultural politics in terms of these goals.
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He believed that to assert their sovereignty over the cultural realm, anticolonial nationalists felt compelled to reject the paternalistic social reform initiatives of colonial states. Moreover, he argued that they resisted the “rule of colonial difference,” which refers to organized distinctions between colonizers, settlers, and the colonized and those between different colonized groups, which were central to colonial state-society relations. Anticolonial nationalists, he claimed, initiated reforms meant to produce authentically national (rather than Western) educational institutions, literary forms, and families while resisting the agency of colonial states in social change; once these nationalists controlled postcolonial states, they gave the state’s backing to such reforms. While building nations that were at once modern and culturally authentic, postcolonial states were said to refuse recognition to popular discourses of communities other than the nation they claimed to represent because they felt driven by the universalizing narrative of capital and prioritized the nation they took themselves to embody.
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Chatterjee and Mahmood
Mamdani claimed that, in the process, postcolonial regimes rarely made a definitive break from colonial despotism and Western forms of polity and economy.
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Chatterjee uneasily juxtaposed his skepticism about the feasibility of multiculturalism and the transcendence of colonial hegemony in postcolonial societies to suggestions that opinion among the concerned groups, ascertained through systematic community consultation, should guide postcolonial cultural policy.
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The above claims were not based on a systematic examination of colonial law, the social reform agendas of anticolonial and postcolonial nationalists, and postcolonial multicultural policies. Careful empirical accounts of colonial law demonstrate that colonized groups, including some of subordinate status, found some space to negotiate jurisdictional boundaries, group boundaries, and rights under colonial law. Colonial administrators were sometimes willing to cede them such space either for administrative convenience or to gain support and limit discontent. Colonized groups used mixed strategies of pressing their interests through state courts, resorting to community courts that certain states recognized, and contesting some features of colonial law. Some of them came to value certain features of colonial legality, and linked aspects of colonial personal and customary law with their identities, even if these legal systems were products of cultural exchanges between the colonizers and the colonized. This meant that the retention of features of colonial personal law and the adoption of imperial precedents did not necessarily undermine postcolonial assertions of rights and authenticity.
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While certain conservative anticolonial nationalists resisted the social reform efforts of colonial states, many other nationalists gave such initiatives their carefully circumscribed support. For instance, in India, only the more conservative nationalists, such as Bal Gangadhar Tilak and Madan Mohan Malaviya, opposed the efforts of colonial officials and liberal Indian professionals to increase the age of consent for girls in the 1890s, and to ban child marriage in the 1920s. Many other important Indian nationalists, including modernists such as Gopal Krishna Gokhale, Jawaharlal Nehru, and Mohammad Ali Jinnah, as well as less conservative traditionalists such as Gandhi, supported these reforms, and Nehru and Gandhi also supported many of the Law Commission’s proposals of the 1940s to change Hindu law. The latter
Indian nationalist leaders were not at the forefront of these reform efforts, but some of their supporters were, especially those in the major women’s organizations of the last colonial decades, the All India Women’s Conference (AIWC), the National Council of Women in India (NCWI), and the Women’s Indian Association (WIA). These actors did not feel that their participation in certain social reform initiatives of colonial officials compromised their efforts to build a culturally indigenous nation or their opposition to colonial rule, because they either found or sought to construct domestic cultural bases on which to reshape the family along these lines. This was dramatized by the AIWC’s choice to support the efforts of the government-appointed Hindu Law Committee in the 1940s, even while the Congress Party was engaged in civil disobedience to end colonial rule.
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