Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India (11 page)

Critiques of the monarchy’s elitist modernization efforts and secularist nationalism, along with calls to reinstate Islamic authenticity, influenced the Iranian Revolution. They shaped the conservative project the postrevolutionary regime pursued once the faction led by Ayatollah Khomeini and like-minded religious elites marginalized its former allies (including secularist
democrats, egalitarian Islamists, and certain traditionalist Islamists), vested preeminent authority in an unelected religious jurist who was the state’s Supreme Leader and guardian of Islamic values, and gained a decisive voice in the elected parliament.
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The regime reversed many of the Pahlavi monarchy’s reforms, including in family law. For instance, it returned family law to the religious courts’ jurisdiction, removed women judges from these courts, made the judicial approval of male repudiation unnecessary, gave fathers and their kin priority over mothers as child custodians, deemed divorces based on old-regime legislation invalid, deprived women of the divorce rights they had enjoyed if their husbands contracted other marriages without their consent, reduced the minimum marriage age to nine, reinstated temporary marriages, and enabled the stoning of adulterers.

These features of the postrevolutionary Iranian regime and the extent to which it changed family law bore affinities with the experiences in Turkey and Tunisia. However, women had participated extensively in the Iranian revolution, and Khomeini and his allies wished to retain their support to compensate for expelling their faction’s ideological competitors from the regime. They claimed that Islamic norms as they understood them could offer women greater rights and dignity than the monarchy’s Westernization had, and they deployed dynamic forms of Islamic jurisprudence to justify the institutions they established. This lent some legitimacy to the innovative religious reasoning used by certain public intellectuals not closely linked to the regime to support extensive public roles for women. Moreover, the demand for women’s labor increased because of the decline of the male population during the war with Iraq through the 1980s.

For the above reasons, policy makers reinstated many rights that women had enjoyed earlier. For instance, through the 1980s and 1990s, extrajudicial divorces came to be accepted only if there was mutual consent; the judicial approval of unilateral repudiation was required once again; and judicial approval of divorce was made contingent on efforts having been made to reconcile the spouses, the woman’s deferred dower having been paid, and arrangements having been made for the father to support his children if he was not given custody of them. Moreover, standard officially approved marriage contracts gave women the delegated right to divorce husbands who took concurrent wives, and to receive payment for house work they had done during the
course of their marriage, as well as half of the matrimonial property if their matrimonial faults were not the bases of the divorce. Women were reinstated as judges in family courts, which were required, moreover, to have at least one woman judge. The courts relied on Pahlavi-era statutes in areas of family life not covered by postrevolutionary legislation, often gave women child custody while holding their husbands or husbands’ kin responsible for the children’s economic support, and did not decree stoning. Such changes accompanied increased public roles for women and helped secure the regime wider support (especially when cautious reformers occupied the Iranian presidency) than the Turkish republic enjoyed through its first generation, without containing demands for further women’s empowerment articulated in innovative Islamic discourses.
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As part of its efforts to reinforce Pakistani identity after the secession of Bangladesh by giving religious norms and symbols added public relevance, the Pakistani dictatorship of the 1970s and the 1980s incorporated conservative Hanafi interpretations into Islamic law, applied Islamic law to the assessment of evidence and certain types of crimes, and reversed some minor reforms introduced by earlier governments, This gained it the support of the small Islamic parties as well as of less organized conservatives. The vision of public religion that motivated the president, Zia-ul-Haq, led him to persist in this course although it provoked the concerted opposition of the Shia minority and various women’s organizations and reformist organizations.
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Thus, the kind of coalitions that regimes aimed to build and the ways in which they sought to engage with society influenced the extent and nature of the changes introduced in personal law.
Table 2.3
summarizes these patterns.

However, the following features of state elites also crucially influenced the debates and conflicts that determined regime composition, the states’ approaches to engaging with society, and the course of personal law: the nationalist discourses framing their orientation, the forms of modernity they embraced, the ways in which they formally and informally classified cultural groups, their understandings of group cultures, their valuation of cultural authenticity, and the weight they gave personal law as a realm in which to assert modernity and cultural authenticity. We now consider the relationships between modes of imagination of the nation and approaches to personal law.

TABLE 2.3   Regime Type and Change in Personal Law

¹
Regimes over which groups such as landed elites, patrilineage leaders, and religious elites, that valued the earlier personal laws and whose interests and authority these laws upheld, had considerable influence

²
Nigeria since the 1980s, primarily regarding the laws of the Muslim majority; Iran since the Islamic revolution and especially in the 1980s; Pakistan since the late 1970s; Sudan since the late 1980s; Afghanistan especially under the rule of the Taliban; east peninsular Malaysia since the 1970s; and Aceh since the last decade

³
Iran under the Pahlavi monarchy; Pakistan until the 1970s; West peninsular and nonpeninsular Malaysia

⁴
Morocco until the last decade

B. Modes of Imagination of the Nation

Most contemporary states present themselves as representatives of nations—a claim they deploy to build affective links with citizens, the majority of whom they typically consider part of the nation they aim to represent. This is a means through which the widespread impression in contemporary societies that the state is autonomous and regulates social action intensively is partly reconciled with the sense (also frequently encountered) that popular sovereignty ensures a close connection between the vitality of states and the welfare and cultural identities of citizens.
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Many states also articulate discourses about particular religious groups and ethnic groups with which they claim a special connection, and thereby cement links with these groups.

The discourses of nation and community that states and political elites employ do not only serve the purpose of building support and legitimacy and increasing the chances that their commands carry authority. They also frame
the social visions of many state officials and various other social actors in many ways. For instance, they influence how these individuals view the major constituent groups in their societies; the norms, capacities and dispositions of these groups; the social roles these groups should have; the institutions that would best recognize the qualities and roles of these groups; the relationships between these groups and the nations of which they are a part; the relationships of these groups with groups and traditions based in other states; and more generally the courses they wish their societies to follow. These discourses also frequently influence popular expectations regarding state action and the language in which certain groups raise demands, whether in support of or opposition to state initiatives. Thus, they significantly affect the state-society interactions accompanying the formation and implementation of various policies.

Discourses of nation and those of community develop through mutual engagement. The nature of political community is central to nationalist narratives, which vary, however, in how they see the nation’s constituent cultures and how they seek to forge community. These narratives vary in whether they consider the nation culturally homogeneous or diverse; and if they see the nation as diverse, whether they consider the cultures of the constituent groups to be entirely distinct or to overlap. Even discourses that present the nation as diverse vary in whether they construct national culture primarily with reference to the cultures of the most numerous or powerful groups, or also the cultures of minorities and subordinate groups; whether they seek to recognize the specificity of minorities or urge their assimilation; and whether they conceive the nation in terms of the ways of the dominant religious group or sect, a nondenominational religiosity, or a secular culture connected to predominant social practices and political institutions. Moreover, nationalist discourses vary in whether they see national cultures as static or dynamic and in whether they wish to maintain or revive social and cultural forms, channel indigenous sociocultural dynamics in new directions, or borrow institutions and mores from other societies. These features of the way the nation, its cultural groups, and its traditions are imagined, influence various policies, particularly those pertaining to the recognition, transmission and transformation of cultures, such as policies regarding education, language, religious communication and conversion, the promotion or restriction of intergroup
interaction, the reduction, maintenance or widening of group inequalities, and systems of family law.

The connections are particularly close between discourses of nation and community and patterns of regulation of family life, because many actors consider certain forms of family and intimacy central to particular group or national cultures. They are explicit in personal-law systems that are framed to reflect group cultures, thus urging individuals to construct their interests in family life importantly in terms of how they see group norms. For instance, they lead many who wish to give individuals greater conjugal autonomy and property control, as well as many others who wish kin groups to control such matters, to understand and present their preferences as part of particular constructions of group normative and legal traditions. In such contexts, proposals that are given a credible basis in popular constructions of group culture have greater chances of acceptance. To the extent that salient discourses give certain cultural groups a privileged position in the nation, projects to change the personal laws of these groups tend to be framed as ways to make both group and nation.

i. Homogeneity / Diversity. While official French, Turkish, Chinese, and Argentinian nationalist narratives emphasize cultural homogeneity, the diversity of national cultures is central to official narratives about Indonesia, India, Lebanon, Kenya, Nigeria, Belgium, and Switzerland. Discourses that emphasized cultural homogeneity while being formally inclusive led state elites to resist the recognition of the nation’s religious and linguistic minorities in France and Turkey, and to transfer religious minority group members to neighboring countries in exchange for members of the religious majority in Turkey.
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In certain other countries such as Israel and Pakistan, where national culture was defined almost exclusively in terms of the ways of the dominant religious majority, policy makers acknowledged certain cultural differences and maintained some forms of minority recognition that predated the formation of these nation-states, such as distinct personal laws. However, they did not try to inculcate in the minorities the values they promoted among the majority. For instance, they changed the majority laws to promote the family norms they valued, but did not change the minority laws much. Policy makers changed Muslim law in Pakistan at different points, initially
in a somewhat modernist and later in a decidedly conservative direction, but not the laws of the Hindu and Christian minorities to which they devoted little attention.
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The Israeli legislature introduced significant changes in civil marriage law and the Supreme Court ensured the somewhat systematic application of these laws in the rabbinical courts governing the Jews, but not in the religious courts governing the country’s Muslims, Druze, and Christians. In applying the standards of civil marriage law to family disputes among Jews alone, the Supreme Court reflected the Israeli elite’s view that minority practices were unimportant to nation formation, and their unrealized hope that limited intervention in certain minority religious practices would restrict the mobilization of the minorities against their political and social marginalization.
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The Pakistani and Israeli states also enabled population transfers similar to those in Turkey.
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The Egyptian state periodically reformed the laws of its Muslim majority, but did not change Coptic Christian law after the 1930s, and disbanded the lay Supreme Communal Council that had earlier changed the latter set of laws. Along with the incorporation of
shari’a
in the constitution, this reflected the implicit view of Muslims as central to the nation that coexisted with official emphasis on an Arab identity that embraced Christians too.
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For similar reasons, the legislature and judiciary changed the laws of Bangladesh’s Muslim majority, but not those of its Hindu, Christian, and Buddhist minorities even though official nationalism focused on Bengali speakers (including Hindus and Christians).
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However, in some cases in which the nation was defined significantly with reference to its religious and ethnic majorities, minority representation in regimes ensured changes in minority recognition. Although the Malaysian legislature focused on changing Islamic law from the 1970s, it also began to apply civil laws rather than personal laws to non-Muslims at the same time and changed these civil laws periodically thereafter, with the support of the ethnic minority parties that were crucial partners in ruling coalitions.
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