Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India (7 page)

Most accounts focused on state autonomy, state centralization, and state-society relations attend inadequately to the ways in which beliefs, ideas, and values influence how social groups construct their interests and mobilize to promote them, and how state elites perceive the interests in society, set their goals, and respond when their initiatives face resistance. They recognize the nearly universal tendency of states for over a century to claim to represent particular nations, but the influence that discourses of the nation and its crucial cultural cleavages exercise over the projects that various social groups support and that states adopt is not central to their analyses. Rather, they implicitly understand official nationalism and forms of social classification as concomitants of state-building processes, and the studies that adopt these approaches to the examination of nation-states and nationalism make this understanding explicit.
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This is particularly a problem for studies of postcolonial societies, in which understandings of the nation, its proclaimed cultural distinctiveness, and its constituent cultural groups are crucial motifs of public debate, and for analyses of policies to recognize and perhaps change national and group cultures.

Poststructuralists gave central importance to how discursive practices simultaneously shape subjects, disciplinary institutions, and state projects. Foucault explored the disciplinary practices employed by social institutions such as clinics, schools, and churches as well as by state institutions, and the forms of knowledge that accompanied such articulations of power. He considered such practices pervasive ineffect because they not only constrained action,
but also formed individual dispositions, popular mobilization, and responses to policies.
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Certain other scholars who adopted these methods were more attentive to the tensions within disciplinary practices, which provided scope for varied responses from subject populations, including some that resisted the hegemony of disciplinary institutions.
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They examined the elaboration of colonial knowledge about colonized societies, which influenced the classification of subject populations in censuses, land surveys, and revenue settlements, meant to render the peculiar customs of these populations legible, in James Scott’s usage, and open to bureaucratic management.
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Some of them highlighted ways in which colonized groups creatively fused knowledge originating in Europe and in the colonies in the course of colonial encounters with precolonial norms both to orient themselves to colonial institutions and to devise alternatives to them.
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Colonial knowledge and classification schemes exercised significant influence over colonial personal law and customary law systems. They influenced the choice of the cultural groups to be governed by distinct personal law systems, the traditions incorporated into these legal systems as well as those that were not enforced on grounds such as morality and public order, and the considerations guiding changes in these systems. Postcolonial theorists emphasized the enduring influence of colonial knowledge and institutions over postcolonial projects. In the process, they underestimated the autonomy of postcolonial responses to colonial strategies. Although they were influenced by ideas that emerged during colonial encounters, personal laws were presented as recognizing precolonial norms and practices, and sometimes as ways of delegating the governance of the family and perhaps land control to precolonial institutions and elites. Partly for this reason, colonized groups drew not only on colonial knowledge, but also on precolonial traditions as they interpreted them in light of current predicaments, practices that emerged in interaction with colonial governance while remaining somewhat independent of it, and postcolonial ambitions (often expressed in nationalist discourses) to frame litigation strategies and devise projects to maintain or change personal law and social practices.
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This study attends to the influence of postcolonial visions of the nation and its major constituent cultures on projects to make state, society and family.

IV. RELIGIOUS NORMS, SOCIAL STRUCTURE, REGIONAL CUSTOM, AND FAMILY LAW

Friedman reconstructed the changes in Western family law since the late eighteenth century as aspects of the formation of a legal culture of modernity, involving the interrelated processes of legal secularization, the replacement of group-specific norms with universalistic rules, and the realization of individual liberty and social equality.
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Various other teleological accounts of legal development shared such an understanding.
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These narratives suggested a close connection between the recognition of religious and other group-specific norms and restrictions on forms of family, intimacy, and kinship. They indicated that the accommodation of such norms in various colonial personal law systems limited the export of modern Western legal systems and their culture of liberty and equality, and considered the legalization of difference a major barrier to constitutionalism, the rule of law, and the extension of rights in postcolonial societies.

Archana Parashar adopted such a perspective on Indian personal law, and attributed the modest character of postcolonial reform to the “religious nature” of the major personal-law systems. As she took religious law to necessarily restrict women’s rights, she misunderstood the Muslim law reforms of the 1930s to have subjected women to the “rigorous control of the high culture Islamic law” because they applied Islamic law rather than regional custom to Muslim family life.
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However, these reforms provided women greater inheritance rights and divorce rights.
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The assumption that religious laws limited reform also prevented Parashar, Rajeswari Sunder Rajan, and Susan Okin from recognizing the judicial reforms in Indian Muslim law from the 1970s.
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Contrary to such understandings, family laws that were framed in religious and other culturally specific discourses followed very different trajectories. The religious laws recognized by colonial states underwent little change after independence in Lebanon, Syria, and Algeria, but changed to provide women greater rights (and individuals greater liberties) around the same time in Tunisia, and to a lesser extent in Indonesia, Thailand, west peninsular Malaysia, Sri Lanka, India, Pakistan, Iran, Iraq, Jordan, Egypt, Libya, and
Senegal. Moreover, such legal systems changed in a conservative direction since the 1970s in Iran, Pakistan, Sudan, Nigeria, Afghanistan, and east peninsular Malaysia, in contrast with the modernist reforms introduced through this period—especially in Morocco and to a lesser extent in Indonesia, Malaysia, the Philippines, Bangladesh, India, and Senegal.

The more extensive modernist reforms changed family law along many of the same lines that certain largely secularized family law systems followed. Nuclear families and individuals gained greater authority in family life in Tunisia in the 1950s, as had happened only a few decades earlier in most industrialized countries and around the same time or a little later in some predominantly Catholic industrialized societies such as Italy, Spain, and Portugal. Morocco adopted the Tunisian reforms over the past decade and went further in certain respects, especially regarding matrimonial property and spousal authority in family life. Moreover, some official religious laws provided women certain rights recognized only in a minority of largely secularized family law systems. For instance, many courts granted women shares in matrimonial property equal to those of their husbands under the rubric of Islamic law in Indonesia, and Moroccan legislation gave women these rights as well a decade back. These shares were greater than divorcees get in about half the states in the United States and in many other industrialized regions.
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This was possible because religious discourses were reconstructed in these societies, and could be elsewhere too under appropriate conditions, to support most family practices that gained recognition in conjunction with legal secularization in industrialized societies from the mid-nineteenth century until about the 1970s. Moreover, the view of the marital bond as fragile in classical Islamic law and certain customary laws has affinities with how marriage was reconstructed and no-fault divorce rights granted in most industrialized societies since the 1960s.

Religious discourses did limit legal reform in various societies in certain ways, however. For instance, even the most extensive Islamic law reforms, seen in Tunisia and Morocco, did not alter the unequal shares of parental property (in a 2:1 ratio) that the Qur’an prescribes for sons and daughters and other male and female kin with a similar relationship to the decedent.
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Moreover, Islamic law reform marginalized certain kinship practices and sexualities that had enjoyed some social acceptance but were considered contrary to
Islamic norms, such as matrilineality in parts of Indonesia, Malaysia, and India, and alternative sexualities and transgendered behavior in Malaysia and the Philippines.
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Changes in family law had such mixed effects on rights not only in countries with religious laws, but also in those with largely secular family laws.

To understand the directions taken by official religious laws over the last century, we need to plot the different relationships between the mobilization of religious and other cultural communities, the enactment of kinship, and the formation of states and nations. Four assumptions underlying Charrad’s approach to these questions merit critical examination: (a) classical Islamic law supports the authority of the patrilineage, a claim that is of broad relevance as many more states recognize some form of Islamic law than any other kind of religious law today; (b) urban groups counter lineage power because they are less dependent on agriculture, the main source of lineage resources and authority, live in more nuclearized house holds, and are more influenced by the modern Western valuation of companionate marriage and autonomous nuclear families; (c) under conditions of prior state autonomy and significant urbanization, centralizing state elites and urban groups reform cultural and religious traditions to promote nuclear family autonomy; and (d) family nuclearization aids women’s rights.
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While Islamic legal traditions uphold male authority over many family practices and recognize inheritance rights mainly based on relationships with men, their prescriptions reduce the authority of the patrilineage in certain ways. For instance, the fixed inheritance shares that they prescribe for individuals, including women, are not conducive to patrilineal property control.
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This led to conflicts between
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and landed elites at different points over inheritance practices in various societies with strong lineages.
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Urban groups vary in the extent of their dissociation from agricultural property, and nuclearized house holds may find extended families both constraints and sources of support. This renders uncertain the relationship urban groups have with lineages and cultural traditions that uphold lineage authority, and thus the extent of their support for initiatives to limit lineage power and increase nuclear family authority. The implications of family nuclearization for women’s rights depend crucially on the nature of authority relations in the nuclear family. Discourses of nation and community influence the kind of family units and
the types of familial gender relations that both urban and rural groups value most.

Echoing Charrad (though without referring to her work), Mytheli Sreenivas linked the emergence of ideas of the conjugal family in India to the growth of new mercantile and professional elites and their competition from the nineteenth century with landholding elites, which defended the authority of the patrilineal joint-family.
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She took better account of ongoing changes in family forms than Charrad did, but presented only fragmentary evidence that class status was closely connected to the positions taken in debates over family life. In attempting to align positions in these debates with the occupational specialization of agents, she misrepresented some of these positions.
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Ritu Birla’s more empirically detailed and conceptually nuanced analysis showed that the joint-family remained crucial in the organization of mercantile activity in colonial India, and that many aspects of the legal construction of the Hindu joint-family as an entity that controls property were results of efforts to promote commerce.
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This was a reason why fewer mercantile and professional elites favored granting individuals control over ancestral property than over property accumulated through professional activities. Thus, individuals from these groups piloted the passage of the Hindu Gains of Learning Act, which assured professionals full rights in the property they acquired by virtue of their education as early as 1930, even if joint-family resources had funded their education. But many of them resisted efforts to make ancestral property readily divisible into individual shares in the 1950s, and accepted this change only in 2005.

While social structure did not determine preferences regarding personal law and family life in the ways that Charrad and Sreenivas indicated, there are some affinities between particular social groups and certain projects of family formation. Urban professionals with limited connections to agricultural land favor the autonomy of the nuclear family and sometimes that of individuals in certain respects. However, they vary in the activities over which they favor giving nuclear families control, the extent to which they prioritize such authority for the nuclear family, and in whether they seek to promote these ends by secularizing law or reforming religious law, adopting Western precedents or reforming indigenous traditions. Rural elites and urban professional groups with significant landed property tend to favor the shared con
trol of extended kin over ancestral property (especially land) and various forms of clan authority. Those embedded in patrilineal kinship practices particularly support the rights of agnatic kin. The majority of colonial personal laws upheld such forms of property control as well as other forms of authority for extended kin, and certain precolonial normative and juristic systems supported them as well. Legal elites, which play crucial roles in initiatives for legal change, tend to draw their visions of authentic legal tradition largely from colonial personal law and customary law, rather than from the older cultural and jurisprudential traditions that these legal systems are said to reflect. By way of contrast, religious elites and certain ethnic elites more often base their personal law agendas partly on precolonial traditions.