Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India (46 page)

States that emphasized the promotion of universalistic values drew most extensively from experience in more industrialized societies, while those that grounded their projects significantly in culturally specific traditions tended to retain or modify institutions with deeper indigenous roots. In the sphere of family law, a few of the former regimes replaced distinct personal laws with homogeneous laws largely drawn from Western precedents (for example, Turkey and Albania) and some of the latter regimes retained most of the personal laws they inherited (for example, Lebanon and Syria). The majority of states in developing countries changed personal laws based on reconstructing indigenous norms, partly in view of Western experiences (for example, Tunisia and Indonesia), and perhaps supplemented them with civil and criminal laws modeled on Western precedents (as did India and Israel).

Another related choice pertaining to family law was that between national consolidation and the accommodation of difference. The tensions between these goals were strong in the majority of developing societies, in which loyalties to the nations that states aimed to represent were weak or uncertain. Some states prioritized the recognition of diversity and others the formation of national cultures mainly from the ways of the dominant group. Yet other states sought to reconcile national consolidation and the recognition of difference by building national cultures drawn from the traditions of various ethnic and religious groups, especially the traditions that these groups shared; official discourses emphasized and promoted these shared traditions. The states that prioritized nation formation either homogenized the diverse personal laws they inherited or applied some of the politically dominant group’s personal laws to other groups. While the former approach was taken in Turkey, the latter was considered in Egypt in the 1950s when policy makers proposed the application of family laws drawn largely from Islamic jurisprudence to Christians, and partly implemented there later when they gave
sharia
consti
tutional status and made it applicable in contexts for which statutes did not provide. The application of antipolygamy laws, based on particular versions of Christian tradition, to Mormons in the United States and to Muslims in several Europe an countries also bore affinities with the latter approach. More states continued to recognize the personal laws of the minority and subordinate groups, but paid far greater attention to the content of the laws governing the majority/dominant group. This was the pattern in Morocco, Israel, Pakistan, and Bangladesh, where the minority laws were barely changed. Some states that promoted syncretic national cultures introduced reforms in the personal laws of the majority as well as those of various minorities. Indonesia especially experienced such wide-ranging reforms, and India also did so to some extent from the 1970s onward.

The efforts of secularist state elites to limit or change the public roles of religion often came into conflict with the power of religious institutions and influence of religious traditions, and sometimes with the proclaimed goals of these elites to respect religious freedom and to treat various religious groups similarly. Furthermore, the preponderant influence of some religious groups and sects frequently limited certain freedoms of other groups and hindered the state’s ability to treat various religious groups similarly. Certain states, particularly various communist regimes, seriously limited the power of religious institutions and the public roles of religious norms and religious symbols, at a cost to religious freedom, and ended the recognition of religious laws. The French state also followed this path to a significant extent. More of the states that proclaimed commitments to secularism responded to the significant presence of religion in public life by continuing to recognize some religious norms and to engage in some ways with religious institutions. Some of them continued to apply personal laws based significantly on religious norms and traditions of religious jurisprudence, and attempted to reconcile this with other goals by limiting the sphere of application of religious law, supplementing religious laws with matrimonial laws not based on religious norms that were applied to all citizens, or changing religious laws by drawing from other aspects of the concerned groups’ diverse and dynamic cultural repertoires. These were the approaches adopted in most postcolonial societies, especially in the Middle East, South Asia, and Southeast Asia. States that continued to apply religious laws varied in the roles they gave religious elites.
They gave religious courts much of the authority to adjudicate matrimonial disputes in Israel, shared such authority between state courts run by secular judges and religious courts in Indonesia and India, and took the preferences of religious elites into account at times in personal-law legislation and in how state courts adjudicated personal law in Egypt, India, and Indonesia. In societies in which religious elites gained considerable influence over the state, such as Iran and Afghanistan, official commitments to secularism (which were not strong at any point) were abandoned, personal laws were changed in light of the preferences of these elites, and the sphere of application of religious law was expanded.

In sum, policy makers varied considerably in the ways in which they responded to prior forms of patriarchal authority, other preexisting intermediate institutions, and strongly felt religious and other normative traditions in their approaches to build the state, consolidate the nation, accommodate cultural difference, and make family law in postcolonial and other developing societies over the past century. The Turkish state seriously limited the power of prior patriarchal, religious, and ethnic authority structures, promoted understandings of modernity derived largely from prior Western experiences and ideas, seriously limited certain public expressions of religion while establishing considerable control over others, and introduced uniform and secular family laws based on Western precedents. In the process, ruling elites gained only limited support, provoked considerable conflict, and did not effectively consolidate their control over society. The Lebanese state continued to delegate considerable authority to sectarian institutions at the cost of weakening the state and its transformative capacity, left personal law under the jurisdiction of the sectarian courts, and barely changed the country’s various personal laws. Such extensive accommodation of sectarian elites did not, however, render the state stable.

In Malaysia, the ethnic and religious minorities were marginal to official nationalist discourse. Nevertheless, the multiethnic alliances that ruled the country managed to build a strong centralized state, maintain a stable regime for much of the postcolonial period, and introduce social- and family-law reforms that were moderate in scope and applied to both the ethnoreligious majority and the minorities in much of the country (except the eastern peninsula). Indonesian and Indian rulers built centralized states by engaging
with authoritative social institutions, while erecting certain boundaries between state and society. They drew support from various ethnic and religious groups, promoted composite visions of national culture that engaged the imaginations and loyalties of many of their citizens, recognized cultural diversity in different ways, built secular states while accommodating public religion extensively, and gradually promoted social equality in various arenas including family life. This enabled them to build and maintain broad social coalitions even while experiencing considerable social conflict and occasional regime change. These regimes contained conflict over personal law by mobilizing credible and attractive cultural grounds for reform and forging compromises over the precise directions of legal change at different points. The postrevolutionary Iranian regime was run by unelected religious elites as well as by popularly elected republican institutions, both of which changed forms of social regulation and religious law significantly in light of their conservative visions. However, they also accommodated contrary preferences at times, and this enabled them to maintain somewhat broad support, but not to contain dissent.

II. INFLUENCES OVER APPROACHES TO MAKING STATE, NATION, TRADITION, AND FAMILY

A variety of factors set the background to the approaches states took to the formation of family law and the associated construction of nations and group traditions, but did not determine all features of their strategies. The drive to consolidate state authority urged new regimes to revise their relations with various social institutions, including those whose authority was recognized by the personal laws they inherited. However, this consideration did not determine the ability and inclination of these elites to centralize power. The new regimes that assumed power in the twentieth century inherited different levels of state autonomy, varied forms of state engagement with social institutions, and different resource endowments for further state building. Those that had more resources and were more autonomous of social institutions at the outset, such as the regimes of postcolonial Tunisia and republican Turkey, were in a better position to consolidate their power by containing the power of social institutions than those that inherited greater delegation of
authority to social institutions, such as the postcolonial regimes of Lebanon and Egypt. This limited the options available to regimes, but did not determine the precise choices made. For instance, prior state autonomy enabled the new regimes of both Turkey and Tunisia to overcome the power of religious and ethnic institutions. But the Turkish rulers did so through the secularization of family law and the adoption of various other Western precedents, while the Tunisian state elites preferred to reform Islamic law as part of promoting revitalized religious traditions and a culturally indigenous nation. Although both the Ottoman and the colonial Indonesian states had delegated family-law adjudication to religious courts, the successor regime took over such authority more completely and transformed the basis of family law more in Turkey.

The experience of Western colonization was an important reason why rulers followed different strategies in Tunisia and Indonesia, from what they did in Turkey. Colonial rulers had devalued local traditions even while according them recognition in various forms in the former countries, much as in other colonies. In response, anticolonial nationalists felt pressed to uphold indigenous cultural traditions, rather than import many Western precedents in the cultural sphere as the Turkish republican leaders did. While postcolonial theorists highlighted such cultural challenges posed by colonial rule with much eloquence, they did not capture the rather diverse ways in which anticolonial nationalists and postcolonial states responded to these concerns. These actors sometimes asserted cultural traditions in the very forms in which colonial states had recognized them; but in other contexts, they rejected colonial understandings of local cultures and advocated other interpretations, incorporated certain colonial ideas into alternative visions, or championed cultural forms marginalized by colonial modernity. Moreover, some of them found the reform rather than the maintenance of indigenous traditions a more effective response to the colonial denigration of colonized societies as backward and static. Such alternative anticolonial cultural strategies informed the particular forms of multiculturalism and nationalism that postcolonial states adopted. They specifically shaped the retention of much of colonial-era personal law in Lebanon, Syria, and Algeria, in contrast with the adoption of moderate culturally grounded reform in Libya, Egypt, Jordan, India, Malaysia, and Indonesia and more extensive reform in Tunisia. Furthermore, they led some
postcolonial states to continue to delegate family law to religious courts (as in Lebanon and Syria), others to give state courts sole authority over religious law (Tunisia), and yet others to grant state courts and religious courts joint adjudicative authority (for example, Indonesia and India).

Postcolonial states responded differently to other colonial cultural legacies too, retaining some, while modifying or abandoning others. For instance, the Indian state retained the colonial recognition of religion as a basis of personal law, but not for political representation, while the Lebanese state continued to accommodate religion in both spheres; the Indonesian state used the colonial emphasis on
adat
not to limit religious identification as colonial administrators tried to do, but to shape religious law based on various changing indigenous practices. More generally, the ways in which the predecessor regime (whether colonial or otherwise) engaged with authoritative social institutions and cultural traditions did not determine all aspects of the strategies of the new regimes. For instance, the Turkish republic’s determination to distinguish itself from its predecessor led it to abandon certain aspects of the latter’s engagement with religion (its close association with Islam, its delegation of family law to religious courts, and its recognition of various religious institutions) but not others (specifically, its control over Sunni religious institutions exerted by employing their elites and closely supervising their communication).

In sum, the following factors set the background to family-law policy, but did not determine all of its features: the drive to consolidate state authority, the inherited forms of state engagement with and autonomy from the social institutions that the prior family law systems authorized, the ways in which the predecessor regimes viewed and accommodated various cultural traditions pertaining to family life, and the orientations of state elites toward the predecessor regimes’ cultural and institutional legacies. Two factors exercised reciprocal influence on each other and shaped approaches to family law—first, the ways in which regimes or segments of regimes aimed to change state-society relations, specifically the alliances they had and aimed to build; and second, the discourses about the nation, its cultural groups, and its traditions that framed the social visions of ruling elites.

The kind of social coalitions that regimes wished to build exercised some influence over their approaches to constructing nations, accommodating
cultures, and making families. For instance, the Turkish and Tunisian rulers introduced more extensive reforms in family law than their Indian and Indonesian counterparts did. This was the case although the four regimes inherited states with comparable levels of autonomy from social institutions, the predecessor colonial states had engaged to a similar extent with religious institutions and lineages in Tunisia, India, and Indonesia, and the Ottoman regime had been more closely associated with religious institutions. The crucial difference was that the ruling elites valued the consolidation of broad social coalitions far more in India and Indonesia than in Tunisia and Turkey. The Indian and Indonesian regimes had support that cut across region, religion, ethnicity, and class, and wished to retain it. The Tunisian regime had broad support at the time of decolonization, but its dominant faction was inclined to abandon much of its support among rural lineages and religious elites, emphasize its association with urban groups, and promote the forms of modernity and reformed religious practice that its leaders valued. The early Turkish republic enjoyed less support at the outset, but its leaders were even more vanguardist than their Tunisian counterparts, and were willing to promote Westernizing social reforms although this further limited their support. As the Turkish regime’s support became restricted to urban reformers who attached limited value to the public recognition of religion and indigenist constructions of the nation, it relied heavily on the military to repress the significant resistance it faced from certain religious institutions, rural groups, and ethnic minorities.