Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India (13 page)

³
Civil laws were applied from the 1970s to Malaysia’s non-Muslims, among whom Chinese are the largest ethnic group.

⁴
Reform was early but not sustained in Egypt.

⁵
Reform was late in India.

If ruling elites wished to abandon many aspects of indigenous culture and adopt the ways of more privileged societies, they transplanted various institutions from these societies, as happened in early republican Turkey. Political elites that preferred to channel indigenous cultures in the directions they favored drew their social reform proposals significantly from interpretations of indigenous religious traditions and customs, and this was the predominant pattern in India and Indonesia.

iv. Modernity / Authenticity. Discourses of nation and community engage in different ways with concerns of modernity and authenticity. Certain nationalist and cultural mobilizers frame their projects as primarily driven by considerations of authenticity; others say they are primarily seeking to promote modernity. However, even narratives that place rhetorical emphasis on authenticity engage considerations of modernity in some ways. For instance, the overwhelming attention in official postrevolutionary Iranian discourse to building an authentically Islamic and Iranian public life coexisted with an en
gagement with Western institutional precedents, some of which were adopted during the Pahlavi monarchy. A specific fusion of considerations of authenticity and modernity shaped the dual character of the postrevolutionary Iranian state—as an Islamic state led by an unelected supreme religious jurist and a republic governed partly by representative institutions. Similarly, nationalist discourses that emphasize considerations of modernity are also often supplemented by concerns to maintain connections to authentic national, regional, or ethnic cultures. For example, this was the case with official discourses in early republican Turkey and Iran under the monarchy. They urged the adoption of various Western mores and institutions, but also attended to the uniqueness of national identity, which they located partly in the non-Islamic features of the cultural heritage of their societies and considered crucial sources of social cohesion.

The majority of nationalist and communitarian projects give considerable attention to both modernity and authenticity, particularly in late-developing societies. They reconcile or fuse these considerations by presenting the changes they promote as emanations of group culture that would yield contextually appropriate forms of modernity. Official Indonesian and Indian nationalism are representative of this pattern. They presented these nations as based in the overlapping cultures of their various religious and ethnic groups, drawing inspiration from these portraits for their efforts to form secularist states that engaged with various religious norms and practices and to build developmental states that engaged with existing forms of social organization while gradually reducing socioeconomic inequality.
⁹³
These states adopted policies that were opposed by important religious institutions and leaders; for example, the Indonesian ruling elites’ refusal to declare the establishment of an Islamic state and to make a constitutional commitment to maintain Islamic law, and the Indian state’s ban on caste segregation in temples and its introduction of divorce rights and enhancement of women’s inheritance rights in Hindu law. But these choices were grounded in interpretations of these societies’ religious and other cultural traditions that enjoyed significant support. As a result, they occasioned far less conflict than various religious policies did in Turkey and Tunisia.

The regimes from which they assume power influence, but do not solely determine, the models of modernity and authenticity that the mobilizers of
nations and communities adopt, and how they base particular changes in state and society on such models. The leaders of the early Turkish republic wished to end the state’s close association with major religious institutions and religious traditions. This was an important reason why they relied heavily on certain Europe an experiences in which the state had seriously curtailed the power of religious institutions, particularly those of France and Prussia, to end the recognition of a state religion, secularize the legal system, and limit religious symbols in public life. (They also drew from these precedents because the Ottoman reforms of the nineteenth century had been based primarily on French ideas and experiences, and many of the military officers who led the early Turkish republic had been trained in Prussia). The influence of French and Prussian experiences and ideas also led them to prioritize the centralization of authority. This motivated them to establish control over the major Sunni religious institutions (as well as various ethnic and kin institutions), which ironically reproduced aspects of the Ottoman state’s engagement with them and gained some acceptance for this reason. But state control over Sunni institutions, the repression of various other religious institutions, the restriction of religious symbols, and the wholesale import of Western institutions also aroused considerable opposition in a society in which many were mobilized to maintain important public roles for religion and indigenous norms.

As their political visions developed mainly in the course of opposition to an indigenous monarchy (although they also briefly resisted Europe an imperial powers), Turkey’s republican leaders were less concerned to revalue indigenous cultures and were comfortable about adopting many Western precedents, including in family law. Nationalists who opposed colonial states were ambivalent about prior experiences in imperial societies and the institutions established in their societies under colonial rule, and sought authentic indigenous cultural bases for more of their projects. This was a crucial reason why most anticolonial Muslim nationalists around the world wished Islamic law to remain a major basis to regulate family life, even while they differed on the form they wished to give Islamic law. The majority wished to retain much of colonial Islamic law in Morocco, Lebanon, and Syria; the more influential anticolonial Muslim nationalists in Tunisia wanted to adopt alternative in
terpretations of Islamic law that promoted women’s rights and nuclear family autonomy; and some anticolonial Islamists preferred to apply conservative understandings of Islamic law to more areas of social life in various societies. Some of the ideological successors of these Islamists shaped policy a generation after independence in Nigeria and Sudan.

Many anticolonial nationalists did retain certain colonial institutions and borrowed other institutions from imperial societies, presenting these choices as necessary to promote modernity. However, a concern to structure state and society along indigenous lines often led them to alter these institutions or supplement them with others, in view of their societies’ specific features. For instance, Indian nationalists were critical of the serious limits within which colonial representative institutions had enfranchised Indians, and aimed to increase the authority and representative character of these institutions. This led them to borrow parliamentary democratic institutions from Britain, but they departed from British models to adopt federalism as a means to enable the governance of a much larger and more diverse society. Moreover, they allowed the formation of states along the lines of language use to accommodate more of the country’s vernaculars and language groups, avoided associating the state with a particular religion in view of the country’s religious diversity and its experience of considerable religious conflict, and tried to introduce strong local government institutions based on precolonial traditions of village governance.
⁹⁴
Moreover, they abandoned colonial institutions that they believed had weakened national cohesion, such as electorates based on religious identity, even while recognizing various social and educational rights based on religious identity to accommodate religion’s important public roles.

Certain nationalists and community mobilizers who replaced domestic regimes were also ambivalent about the institutions they inherited. This was the case with Iran’s postrevolutionary leaders, importantly because the monarchy they replaced was closely allied with Western powers and adopted various unpopular Western institutions. They believed the representative institutions that existed under the monarchy had failed to capture popular will, and Ayatollah Khomeini specifically felt that the enfranchisement of women was contrary to Islamic norms. However, Khomeini took genuine popular will to
have crystallized during the revolution, so that postrevolutionary representative institutions elected based on universal franchise could represent the citizenry. These institutions were based largely on the model of the French republic, which had also influenced representation under the monarchy, but they were framed now as contemporary incarnations of Islamic traditions of
shura
(popular consultation). To ensure that they would pursue the authentic Islamic projects of their architects’ imagination, their decisions were subject to the approval of two unelected entities, the supreme religious jurist and the Council of Guardians composed largely of religious scholars.

In the sphere of family life, modern Western states promoted the authority of the nuclear family, monogamy, patriliny, and, since the mid-twentieth century, more equal rights for the genders. Various Asian and African cultural traditions and personal laws (and earlier Europe an traditions and legal systems as well) recognized the authority of larger kin groups and greater rights for men and agnates, and some of them recognized bilateral and matrilineal kinship practices. The culturally grounded modernists of Asia and Africa promoted the autonomy of the nuclear family and the reduction of gender inequality in certain respects. They framed these aims in discourses of nation and community, modernity and authenticity, which shaped the specific changes they sought in family life and how they related these changes to the other ways in which they wished to make state and society. Conservatives framed the social practices and institutions that they defended in alternative discourses of nation, community, authenticity, and sometimes modernity as well. Various features of state-society relations influenced the pace at which modernists and conservatives promoted the forms of family life they valued and the extent of their success.

Table 2.5
summarizes the relationships between certain features of nationalist discourses and personal law policy.

C. Explaining Policy Trajectories

We have seen that certain features of state-society relations and the discourses of nation and community prevalent among ruling elites influenced the approaches of states to the personal law systems that they inherited. We will now consider how these factors interacted, and how their interactions influenced personal law.

TABLE 2.5   Nationalist Discourses and Personal Law

¹
Iran during the Pahlavi monarchy

²
Pakistan until the 1970s

³
Most of Malaysia saw moderate modernist reform. East peninsular Malaysia alone saw conservative changes from the 1970s

⁴
Morocco until the 1990s

Certain features of personal-law policy correspond with particular forms of state-society relations—specifically with the nature of social structure, state-society relations under the predecessor regime, the social coalitions that crucial state elites had or aimed to build, and the way these elites wished to restructure state-society relations. For instance, personal-law reform was most extensive and promoted nuclear family autonomy most in countries such as Turkey and Tunisia, where the state was already somewhat autonomous of crucial social institutions, ruling elites viewed certain sections of the urban middle classes and working classes as the national vanguard, and these elites prioritized increased state control over religious, ethnic, and kin institutions even though this seemed likely to provoke significant opposition. Personal-law reform was more limited in societies such as Senegal, Libya, Egypt, Jordan, Iraq, India, Sri Lanka, Malaysia, and Indonesia, where regimes were allied with modernist urban elites, as well as with traditionalist religious, ethnic, and kin leaders, and wished to consolidate their support among both sets of groups. Reforms were barely attempted in Lebanon, Syria, Algeria, and—until recently—Morocco, where lineage leaders had more influence, ruling elites were either lineage leaders themselves or depended heavily on the support of kin groups, and professional, commercial, and industrial elites were weaker. Changes in personal law reduced women’s rights and individual autonomy
where conservative religious elites were important leaders, members, or supporters of regimes, as was the case in Iran, Sudan, and northern Nigeria since the 1980s, and in Afghanistan while the Taliban ruled the country from 1996 to 2001.

However, social structure and prior state-society relations did not determine the social coalitions that state elites sought to retain or build, the projects of these elites to restructure state-society relations, or the discourses of nation and community in which these elites conceived these projects. In many of these countries, significant sections of the political elite wished to launch different projects and articulated distinct discourses of nation and community in response to the same conditions. In some, the regime at least initially included factions oriented toward very different projects and committed to different nationalist visions. Conflicts over alternative conceptions of the nation were important aspects of the competition over regime composition; they shaped regime support, and how regimes changed state-society relations. They specifically influenced how these regimes changed personal law, and in the process made the nation and recognized its cultural groups.