Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India (12 page)

Among nationalist discourses that emphasize diversity, those that consider group cultures entirely distinct urge the accommodation of these cultures in ways that limit cultural exchange, while those that highlight cultural overlap are more open to enabling cultural exchange. For instance, the former type of understanding led the Lebanese and Syrian states to maintain
the jurisdiction of community courts over their various personal laws; by contrast the Egyptian and Indian states, whose emphases on the Arab and Indian identities respectively shared by all their citizens led them to give state courts jurisdiction over personal law and to consider the introduction of uniform family laws. The judges who staff community courts bring distinct social visions to bear on how they interpret their communities’ personal laws, and maintain differences between these personal laws.
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Personal law systems tend to converge in certain respects when interpreted by the similarly trained and professionalized judges of state courts, even if they are said to rest on distinct statutes, jurisprudential systems, and cultural formations, as happened in India. Moreover, in India and Indonesia, where nationalist narratives highlight cultural similarities across religious and ethnic lines, courts construed personal-law provisions in light of distinctive group traditions, customs shared by various religious groups, and statutes applicable to all citizens or the residents of particular states. This led them to apply similar alimony provisions throughout India, similar rules regarding acceptable marital alliances in particular regions of India, and the same customs concerning matrimonial property in Indonesia to different religious groups although the relevant features of statutory and uncodified religious law were rather different.

While nationalist discourses emphasized that various religious groups shared certain cultural practices in India and Indonesia, the predominant discourses among political elites and religious scholars varied in other respects. In Indonesia, ruling elites defined belief in a nondenominational Supreme Deity as a central aspect of membership in the nation (although Confucianism, Hinduism, and certain of the country’s folk religions are not monotheistic), and understood the customs of the archipelago, shaped by Buddhist, Hindu, Islamic, and Christian influences as well as by folk spiritual practices, to constitute national culture. In India, official discourse presented the partially overlapping cultures of the major religious groups as central to the nation, without expecting religious belief of its citizens. While the Indian narrative was similar to Indonesian nationalism in its cosmopolitan pluralism, it coexisted with the wide prevalence of the view that Hindu practices were based in indigenous cultural traditions while the ways of Indians practicing religions of foreign origin were not. This led many public actors to see Hindu norms as
central to Indian national culture, in contrast with the mores of Indian Muslims, Christians, Parsis, and Jews, which they took these groups to share with their respective transnational religious groups. They especially saw Indian Muslims as having greater affinities with Muslims in other countries than with India’s non-Muslims, despite the considerable cultural similarities between the inhabitants of particular regions of India.
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This contrasted with the predominant view in Indonesia that the country’s Muslims were embedded in the cultures of the nation, which other religious groups shared, These contrasting views existed of the relationship of the country’s Muslims to national culture although the influence of Islam began earlier in India.

These discourses about the relationship of Muslims to indigenous culture encouraged Indonesian policy elites to promote similar changes in the practices of Muslims and other religious groups, and made both policy makers and certain religious elites comfortable about incorporating the bilateral customs of many of the country’s ethnic groups in Islamic law. The rather different views of most policy makers and Muslim religious elites in India made them disinclined to change Muslim practices in ways for which they could not find support in distinctively Islamic norms, and reluctant to incorporate the bilateral and matrilineal practices of certain Indian Muslim groups into Indian Muslim law. Along with the limited understanding that most policy makers had of Islamic norms, the visions many of these elites had of Indian national culture and Muslim mores seriously limited changes in India’s Muslim laws and kept the rules of this personal law system particularly distinctive.

ii. Nations and Minorities. The ways in which nationalist discourses framed cultural differences were related to how minorities were constituted in the course of state formation and nation making, especially in the formative phases of these processes. Centralizing states and the initial mobilizers of territorial communities generated new public categories such as citizen, town dweller, and worker, which were linked to emergent practices more than to ancestry, faith, and custom. They frequently regarded minorities as resistant to full incorporation in such categories, and thus as troubling constraints to the formation of modern public spheres. Various state builders and mass mobilizers typecast groups such as the Jews and minority Christian sects of
modern Europe, the “natives” and enslaved populations of settler colonies, various cultural and religious minorities of postcolonial states, and many recent immigrant groups in Europe and the Americas along these lines.
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Some of them barely incorporated minority cultural traditions, practices, and initiatives into their ways of imagining national culture and destiny. (The reconstruction of settler colonies as racially exclusive nations in southern Africa and parts of the Americas were stark instances of this trend). They typically engaged too little with minorities to be aware of many aspects of the dynamism and internal diversity of these groups. Nationalists who paid limited attention to diversities within the nation, such as those of France, China, and Turkey, and those that associated national culture largely with the dominant majority, such as the state elites of Israel, Pakistan, Bangladesh, Thailand, and the Philippines, viewed various minorities along these lines. The former typically tried to assimilate minorities, while the latter were willing to accommodate minorities on the margins of national life. To the extent that their engagement with minorities was limited, certain pluralistic nationalists, such as many in India, also marginalized these groups in certain respects.

Aamir Mufti highlighted such patterns in the construction of Europe an Jews and Indian Muslims, but did not address differences in predominant stereotypes of minorities that influenced whether and how they were accommodated.
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While certain minorities were typecast as backward and resistant to post-Enlightenment modernization projects, others were considered particularly educated, open to new currents, or enterprising, perhaps in devious ways that required the ethnically unmarked citizen (typically a member of the majority) to distrust them.
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Ruling elites’ stereotypes of Muslims fit the former pattern not only in some countries in which they were minorities (such as India, Thailand, the Philippines, and various Europe an countries), but also in some in which they were the majority (as in much of the Arab world during colonial rule). Various mercantile groups (or groups typecast as such) were seen as wily and enterprising (for example, Jews in Europe, Chinese in Southeast Asia); certain minorities that had close links with colonial powers were considered modernizing agents with uncertain affinities with the nation (such as Christians in Syria, Lebanon, Egypt, India, and Indonesia); and some groups were considered enterprising yet difficult to incorporate in public life (such as Europe an Jews).

Only a few official nationalist discourses incorporated minorities and their traditions significantly. They include the Canadian myth of dual founding nations, the multinational vision of the former Yugoslavia and the binational conception of the former Czechoslovakia, the multiethnic understanding of countries such as Belgium, Nigeria, and Lebanon, and the postimperial and postmonarchic reconstructions of British and Spanish identity respectively. These pluralistic nationalisms included only certain minorities, and some of them resisted the accommodation of other minority groups. For instance, Spanish, Yugoslav, and Czechoslovak nationalisms did not include the Romany, and Canadian nationalism was belatedly and only partially modified to embrace indigenous groups. Nevertheless, pluralistic nationalisms construct minorities differently from how homogenous and majoritarian nationalist discourses do.

Initiatives emerged in various societies to gain recognition for certain minorities, and international agreements and international organizations addressed these concerns, particularly after the United Nations adopted the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities in 1992. Recognition enabled the closer integration of certain minorities into public spheres, mass politics, and state institutions. However, discourses that placed minorities at the margins of political communities often encouraged state elites to accommodate only dominant understandings of minority cultures, empower traditional elites as group representatives, consider reformists unrepresentative of group opinion, and make forms of recognition insensitive to emergent currents. They also induced policy makers to give less priority to promoting the practices they encouraged among most citizens to minorities. Many modernist state elites considered conservative minority elites less of a constraint to their authority than conservative majority elites, and this further reduced their inclination to promote minority reform. The resulting patterns of accommodation reinforced minority marginalization from various spheres and induced various minority-group members to orient themselves primarily toward their own communities, even while these institutions lent certain group members added authority and resources, and made others too feel that they could maintain some practices they valued. Groups that nationalist discourses typecast as backward tended to be accommodated in these ways—for example, the Muslims
of India, the Philippines, Thailand, and Israel, and the Hindus of Pakistan and Bangladesh.

State elites tended to approach minorities considered attuned to education, enterprise, and modernity differently. They were more likely to register support for social reform among these groups and to consider it appropriate to promote similar practices in them and the majority. Policy makers also better understood opinion and initiatives among minorities that played important roles in regimes, as certain Christian groups did in Egypt and Indonesia and the Chinese and Indians did in Malaysia. Such stereotypes and circumstances prompted Egyptian policy makers to authorize the secularized reformers of the lay Coptic Orthodox Supreme Communal Council to introduce a reformed Coptic personal status code in 1938 and consider the introduction of uniform family laws in the 1950s; led Indonesian judges to apply customs that granted women greater rights to the religious minorities; led to the application of new civil marriage laws to Malaysia’s religious minorities in the 1970s and the ongoing reform of these civil marriage laws thereafter; and induced Indian legislators and judges to effect convergence in certain features of Christian and Hindu law. However, certain minorities that were typecast as having modern inclinations were marginalized in regimes and official nationalist discourses, and the forms in which they were recognized did not remain sensitive to emergent currents. For instance, many nationalists took Christians to have affinities with the West and their transnational religious institutions even though many Christians had opposed colonial rule in Egypt and India. This led the Egyptian regime to sideline Christians and halt Coptic Christian law reform to accommodate the Coptic Church from the 1940s onward rather than continue to empower lay liberals, and dissuaded Indian policy makers from granting concerted Christian demands for adoption rights, since they feared this would increase the group’s share of the population.
Table 2.4
indicates these patterns.

iii. Cultural Change / Cultural Stability. Ruling elites that prioritized cultural modernization changed personal law most extensively, as in Tunisia and Turkey. Those that valued cultural maintenance or revival, as in Syria, Lebanon, and early postcolonial Morocco, were disinclined to change personal law. Those that wanted cultural continuity in some respects and cultural
change in other respects introduced moderate personal-law reforms, and such elites were predominant in most postcolonial states, including Libya, Egypt, Jordan, Iraq, Pakistan, India, Malaysia, Indonesia, Thailand, and the Philippines.

TABLE 2.4   Policy Regarding Minority Personal Law

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Civil marriage law was not applied much in Israel’s Islamic courts.

²
Muslims were a minority in Lebanon when postcolonial personal-law policy was formed, but became the majority later. Muslim law was changed in India since the 1970s, but not extensively.