Chapter II nationalism, Recognition, and Family-Formation I states, Kin Groups and Families



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Table 2.2

Features of Community Discourses and State-Society Relations that Influence One Another

Couplets used in Discourses of Community

Features of State-Society Relations

Nation-Community

Modernity-Authenticity



Group Boundaries

Social Dynamics

Nature of State Institutions

State-Society Boundaries & Engagements



Table 2.3: Regime Type and Change in Personal Law

Type of Regime

Extent of Change in Personal Law

Vanguardist

Catch-All

Traditional Elite-Led

Extensive

Turkey, Tunisia (Modernist)

Nigeria, Iran, Pakistan, Sudan, Afghanistan, east Malaysia, Aceh110 (Conservative)









Moderate




Senegal, Libya, Egypt, Jordan, Iraq, Iran, Pakistan, India, Sri Lanka, Bangladesh, Malaysia, Indonesia, Thailand, Philippines111




Limited







Algeria, Morocco,112 Lebanon, Syria, Malawi


Table 2.4: Policy Regarding Minority Personal Law

Predominant Vision of Nation

Stereotype of Minority Group

Homogeneous

Majoritarian

Pluralistic

Backward

Assimilate in Civil Law – e.g., Muslims in China, France

Little Change – e.g., Muslims in Philippines, Thailand, Israel;113 Hindus in Bangladesh, Pakistan

Little Change – e.g., Muslims in Lebanon, India114

Modern

Assimilate in Civil Law – e.g., Christians in Turkey

Moderate Modernist Reform – e.g., Chinese in Malaysia,115 Copts in Egypt116

Moderate to Extensive Modernist Reform – e.g., various ethnic groups in Indonesia, Christians in India117


Table 2.5

Nationalist Discourses and Personal Law

Emphasis of Nationalist Narratives

Personal Law

Modernity/ Cultural Change

Authenticity/ Change Amidst Continuity

Authenticity/

Cultural Stability

Extensive Reform

Turkey, Tunisia







Moderate Reform




Senegal, Libya, Egypt, Jordan, Iraq, Iran,118 Pakistan,119 India, Sri Lanka, Bangladesh, Malaysia, Indonesia, Thailand, Philippines




Little Change







Morocco,120 Lebanon, Syria, Malawi



1 e.g.: Pufendorf 1991; Bodin 1955; Filmer 1949

2 Weber 1968, 1006-1069

3 Adams 2005 argued that early modern European states had pronounced patrimonial features; Adams and Charrad 2011 provided a comparative survey of modern patrimonialism; Eisenstadt 1973 offered the classic understanding of contemporary neo-patrimonialism.

4 Cott 2000

5 See: Cretney 2005; Glendon 1989; Colley 2009; Thompson 1966; Bell 2003; and Hill 2008 on Britain and France; and Yilmaz 2005; Kuru 2009, 161-246; and Charrad 2001 on Turkey and Tunisia.

6 Glendon 1989; Friedman 2004; Friedman 1994

7 See: Foucault 1978; Foucault 1980; Foucault 2007; Ong and Peletz 1995; Mitchell 1991; Rabinow 1995; Asad 2003; Peletz 2009.

8 Charrad 2001

9 While Cott focused on visions of sovereignty, Charrad seemed to consider visions of nation and modernity concomitants of institutionalized state-society relations.

10 Chatterjee 1993

11 “The modern state, embedded as it is within the universal narrative of capital, cannot recognize within its jurisdiction any form of community except the single, determinate, demographically enumerable form of the nation. It must therefore subjugate, if necessary by the use of state violence, all … aspirations of community identity.” Chatterjee 1993, 238

12 Chatterjee 1993; Mamdani 1996

13 Chatterjee 1993; Chatterjee 1994

14 See: Benton 2001; Merry 1991; Merry 1999; Chanock 1991.

15 See: Everett 1979; Basu and Ray 1990; Nair 1996. Sinha 1999 and Nair 1996 equate the approaches of the major male leaders with those of Indian nationalists tout court although understandings of Indian nationalism influenced the strategies of the AIWC and the WIA.

16 For an overarching view of multiple modernities, see: Eisenstadt 1987; Eisenstadt 2003. Also see: Chapter I, endnotes 5-9.

17 Gerschenkron 1962; Johnson 1982; Evans 1995; Amsden 2001; Hill 2008

18 e.g.: Easton 1953; Almond and Coleman 1960

19 especially Nordlinger 1981; Krasner 1978

20 e.g., Skocpol 1985; Skocpol 1995; Bates 1981; Evans 1995

21 Mitchell 1991 and Migdal 2001 highlight these problems.

22 e.g.: Tilly 1975; Goldstone 1991; Marx 1998

23 Friedman 1994; Friedman 2004

24 Migdal 2001 is a particularly nuanced expression of this approach. Collier and Collier 1991; Migdal, Kohli and Shue 1993; Jackman 1993; and Kohli 2004 are other important instances.

25 Various other theories also advance the first three claims. It is the combination of these and the fourth claim that is distinctive of the state-in-society school.

26 Khoury and Kostiner 1990; Charrad 2001; and some of the essays in Adams and Charrad 2011

27 See for instance: Jackman 1993; Breuilly 1994; Marx 1998; Marx 2003.

28 Micro-level discipline was the focus of his earlier work: Foucault 1973; Foucault 1977; Foucault 1978. His later lectures - Foucault 2007 - emphasized macro-level regulation.

29 See: Mitchell 1991; Rabinow 1995; Peletz 2002; Peletz 2009; Asad 2003.

30 Scott 1998

31 Said 1978; some of the essays in Hobsbawm and Ranger 1983; Cohn 1996; and Stoler 2009 explored colonial knowledge. Poststructuralist theory especially shaped Stoler’s analysis, and bore affinities with the work of Said, Cohn and Ranger. Cohn 1996; Appadurai 1996; Mamdani 1996; Nobles 2000; and Dirks 2001 discussed forms of colonial and postcolonial social classification. Dirks 2001; Chatterjee 1993; Mitchell 1991; and Stoler 1985 highlighted ways in which social groups appropriated features of colonial discourse for counter-hegemonic purposes.

32 Benton 2001; Merry 1999; and Chanock 1985 detail such trends in various societies.

33 Friedman 2004; Friedman 1994. Glendon 1987; Glendon 1989; and Goode 1993 agree with many of Friedman’s claims, but offer more nuanced accounts.

34 e.g., Schwartz and Skolnick 1970; Stein 1980; Elliott 1985; Lowe and Douglas 2009

35 Parashar 1992, 75 and passim.; Parashar 1992, 139-143 also mistook the greater role of statute after decolonization to mean that the state modified religious rules and limited religious authority more. Even colonial personal law was formed through considerable changes in prior norms and religious elites had limited roles in the state’s legal system from the late nineteenth century, but various religious leaders continued to run community courts.

36 Women in matrilineal groups lost certain rights through the application of official Islamic law, but they were a small minority of Indian Muslims, mostly in Kerala and Lakshadweep. See: Arunima 2003; Miller 1976.

37 Sunder Rajan 2003, 148-9; and Okin 2001 claimed that Muslim women had lost alimony rights over a decade after courts had increased these rights.

38 Bowen 2003; Cammack and Feener 2007

39 But, policy-makers seriously considered the equalization of these shares in Indonesia.

40 Peletz 2002; Peletz 2009; Bowen 2003; Brewer 1999; Feliciano 1994

41 Charrad 2001

42 John Bowen helped me understand this.

43 See: Coulson 1971; Tucker 2008; Zaman 2002.

44 Sreenivas 2008

45 For instance, she did not distinguish the greater orientation to reform among the less conservative traditionalists (e.g., C. Rajagopalachari, the first Indian Governor General (1948-50), who supported a minimum marriage age, inheritance rights for Hindu women in property earned by their parents, and the right of Hindus to a divorce after a period of judicial separation, while opposing giving daughters access to jointly owned ancestral property) than the more conservative ones (e.g., Rajendra Prasad, India’s first President (1950-62), who opposed all of these proposals); and variations among modernists, of whom the majority supported the right of males alone to partition jointly owned family property but a minority, including B.R. Ambedkar, the first postcolonial Law Minister, wished to extend this right to females as well.

46 Birla 2009

47 See: Bourdieu 1977.

48 Bowen 2003; Peletz 1996; Feener 2007; Feener and Cammack 2007; Peletz 2002

49 See: Powers 1986; Coulson 1971; Spooner 1966.

50 See: Rocher 1972; Cohn 1996, 57-75.

51 Agarwal 1995; Agarwal 2008

52 They offer an alternative to understandings that the French or the American version of secularism is the exemplar. For this older view, see: Berger 1967; and, with reference to India, Smith 1963.

53 See: Monsma and Soper 2009; Jacobsohn 1996; Asad 2003; Bhargava 1999; Bhargava 2010; Casanova 1994; Casanova 2006; Taylor 2007.

54 See: Madan 2003; Nandy 1988. Madan and Nandy inappropriately focused their criticisms on Indian institutions.

55 Jacobsohn 1996; Jacobsohn 2003

56 See: Peled 2001, 70-71; Woods 2008. While the rabbinical courts do not register polygamous unions usually, `courts’ composed of a hundred rabbis permit certain Jews to contract polygynous marriages. Edelman 1994, 143

57 Jacobsohn 2003; Bhargava 2010; Brass 1991, 75-108; Chiriyankandath 2000; Mitra and Fischer 2002

58 Gilmartin 1988; Nelson 2011

59 The Muslim political elites who piloted the Shariat Act had said that they could not apply this central legislation to the inheritance of agricultural land, which was under provincial jurisdiction. But, the Government of India Act of 1935 had placed the administration of agricultural land under provincial jurisdiction precisely due to the influence of one of the Shariat Act’s architects, Mian Fazl-i-Husain (see: Nelson 2011, 100-102). The Indian constitution made succession to all forms of property part of the “concurrent list”, enabling either the national or the state governments to change laws regarding the inheritance of agricultural land. Bina Agarwal drew my attention to the implications of this change for amending the Shariat Act. See: Agarwal 2008, 337-338.

60 This change was introduced in the largest West Pakistani provinces of West Punjab and Sind in 1948 and 1950 respectively, and in the rest of West Pakistan in 1963. Islamic law was applied to agricultural land inheritance even before the passage of the Shariat Act in East Bengal. See: Nelson 2011, 161-9. Nelson showed that landed groups bypassed this legislation and maintained patrilineal inheritance, but did not discuss the motivations behind this reform. In India, the Shariat Act was similarly amended in two states in which bilateral and matrilineal kin practices were widespread - in Madras Presidency in 1949 and in Kerala in 1963. Islamic law had already been applied to the inheritance of agricultural land under colonial rule in West Bengal, Assam, Bombay Presidency and Hyderabad state.

61 Asaf Ali Fyzee and Sharifa Hamid Ali were the chief proponents.

62 This is discussed in Chapters III and V.

63 Pandey 1990; Pandey 2005; Chatterjee 1992; Mufti 2007

64 The significant gap between the estimates of the Christian share of the population offered by the Indian census and the World Christian Database (2.3% and 6.7% respectively) suggests that many from the lower castes converted to Christianity nevertheless, but avoided reporting this to officials to retain their eligibility for preferences and special civil rights protections, and perhaps to reduce the prospect of Hindu nationalist attacks, which targeted Christian conversion activity over the past two decades. Minority religious identity does not however make individuals ineligible for the scheduled tribe and `other backward classes’ (i.e., lower-middle and middle castes) preferences.

65 Most Nagas practice Christianity and folk religions, and the majority of Kashmiris are Muslim. See: Galanter 1984 regarding preferential policies; Subramanian 1999 about the Dravidian movement; Baruah 1999 and Baruah 2005 concerning the Assamese and Naga movements; Brass 1991 and Gurharpal Singh 2000 regarding the Sikh movement; and Ganguly 1999 about Kashmiri nationalism.

66 For instance, Galanter 1984; and Mendelsohn and Vikziany 1998 noted the unavailability of preferences for Muslim and Christian lower castes, but did not explore the reasons. Brass 1991; Ganguly 1999; and Baruah 2005 did not address these aspects of state responses to the Sikh, Kashmiri, Naga and Assamese movements respectively. Bhattacharyya 2003; Roy 2007; Ruparelia 2008; and Stepan, Linz and Yadav 2011 did not examine these features of Indian multiculturalism.

67 See: Ahmed 1992; Ziadeh 1968; Kerr 1966; Tucker 2008, 65-77; Abu-Odeh 2004.

68 Ziadeh 1968, 117, 138; Abu-Odeh 2004, 1095-1101, 1126-1146; Singerman 2005; Badran 2009, 1-54; Wickham 2002

69 See, regarding Malaysia, on family law: Peletz 2002; Mohamad 2010; Sobotkova 2012; Horowitz 1994; Hooker 1984, 48-60, 123-143, 148-150; on ethnic politics and Islamism: Horowitz 1985, 398-440; Camroux 1996. Regarding Sri Lanka, on family law, see: Goonesekere 1980; Goonesekere 1990; on ethnic and religious politics: Devotta 2004; on contemporary public Buddhism: Bond 1988. Two of Sri Lanka’s three personal law systems (Kandyan and Thesavalamai law) initially governed the inhabitants of particular regions, but the courts came to apply them, in combination with principles of Roman-Dutch and English law, largely to the Sinhalese and (non-Muslim) Tamil ethnic groups respectively.

70 Welchman 1988; Wiktorowicz 2001; Abu-Odeh 2000

71 Regarding Indonesian nationalism and Pancasila, see: Darmaputera 1988; Anderson 1999; Anderson 1998, 77-173; and Bertrand 2004, 28-34. Bowen 2003; Bowen 1998; Bowen 1988; Cammack, Young and Heaton 1996; Feener and Cammack 2007; Salim 2008; Cammack 2002; and Cammack 2008 discuss personal law. Bowen 2003, 53-55; Cammack and Feener 2007; and Cammack 2002 explore the judicial deployment of notions of a national adat.

72 Of these countries, Malaysia comes closest to the Indonesian pattern. Both countries have Muslim majorities and significant religious minorities, widespread bilateral and matrilineal practices which colonial and postcolonial law recognized in some ways, the majority of Muslims adhere to the Shafi`i madhhab, Islamic courts govern Muslims and civil courts govern the other religious groups, and policy-makers gave Islamic law greatest attention, but also changed the minority laws.

73 This proposal is discussed in Feener 2007, 141-146; and Cammack 2002. Certain Muslim women get no shares or negligible shares of certain properties, the inheritance of which is governed by ethnic custom rather than Islamic law. This is the case regarding agricultural land in much of India, and most forms of property among the “Berbers” of Morocco and Algeria.

74 Various Western family law systems gave men similar authority over their wives until the early twentieth century.

75 See: Kuru 2009, 202-235; Kuru and Stepan 2012; and Berkes 1964 on Turkish secularism; Kandiyoti 1991b and Arat 1994 on its implications for women; and Yilmaz 2005; Yildirim 2005; Starr 1978; and Starr 1989 on family law. The monarchy introduced very similar family law reforms just three years later in Albania, based on the French, Swiss and Italian Civil Codes. Communist and post-communist legislation increased women’s rights further. See: Zace 1995.

76 Moroccan policy went further than the Tunisian precedents in giving spouses equal shares of matrimonial property on divorce, and making them jointly responsible for managing the nuclear family. See: Mir-Hosseini 2007; Wuerth 2005; Buskens 2010.

77 See: Charrad 2001, 201-232; Charrad 2007; and Charrad and Goeken 2006 on Tunisian Islamic law; and Anderson 1986 on Tunisian nationalism and the Neo-Destour Party.

78 Arjomand 1989; Arjomand 1988

79 Osanloo 2009; Mir-Hosseini 2000; and Halper 2005 discuss changes in Islamic law. Osanloo 2009; Mir-Hosseini 1999; and Paidar 1995 place them in the context of women’s changing experiences and debates on religion and gender.

80 Weiss 1986 and Mehdi 1994 explore the changes in Islamic law. Shaikh 2009, 107-115, 150-179; and Esposito 1990, 170-187 relate them to the politics of the dictatorship. Regarding conservative changes in Islamic law in Sudan, see: Massoud 2013; Fluehr-Lobban 1987; in Nigeria, see: Harnischfeger 2008; Peters 2001; and in Afghanistan, see: Ghasemi 1998; Middleton 2000.

81 Breuilly 1994, 390 and passim. elaborates on this connection.

82 Kuru 2009

83 Yilmaz 2005

84 Edelman 1994; Peled 2001

85 The Pakistani state allowed Muslims to move from India to Pakistan and non-Muslims to leave for India soon after it was formed. The Israeli state encouraged the continued immigration of Jews, but denied Palestinians expelled when it was formed and their descendants a similar “right of return.”

86 Important changes were made in 1938 in Orthodox Coptic Christian law, particularly in divorce rights. But, further changes were not made in these laws, to accommodate the Orthodox Coptic Church. See: Shaham 2010; Rowberry and Khalil 2010; Hassan 2003.

87 See: Bhuiyan 2007; Bhuiyan 2010; Hoque and Khan 2007 about the personal laws. See: Baxter 1984 about nationalism in Bangladesh.

88 Siraj 1994. The changes in Islamic law varied across state, reflecting differences in party strength (being modernist in the western peninsula where the National Front was strong, and conservative in the eastern peninsula where the Islamists were strong) and prevalent customs (with the courts incorporating certain matrilineal and bilateral customs in Sabah and Sarawak). See: Peletz 2002; Horowitz 1994.

89 State courts consider appeals of community court verdicts in many countries. This affects adjudication to the extent that appeals courts change community court verdicts.

90 These contrasting images of Hindus and Muslims drew significantly from colonial understandings, discussed in: Cohn 1996; Parry 1972; Pandey 1990, 1-65.

91 Some of these groups were treated as minorities although they were numerically preponderant - e.g., the indigenous groups of settler colonies in parts of Africa and Latin America.

92 Mufti 2007

93 For a discussion of varied group myths, see: Horowitz 1985, 141-184.

94 These states engaged religious norms and prior social organization more successfully than they promoted equality.

95 Their efforts to strengthen local government institutions were least successful.

96 This was true of even political forces that focused on Arab rather than Muslim identity, and reached out at some points to Christian minorities, such as Egypt’s Free Officers Regime and Syria’s Ba’ath Party. Concerns to accommodate Christians did not prevent policy-makers from incorporating shari’a into constitutional law and considering the application of uniform laws drawn partly from Islamic tradition in Egypt. This contrasts with the refusal of Indonesian rulers to make a constitutional commitment to govern Muslim family life according to Islamic law.

97 Ataturk turned decisively against various Ottoman legacies, including the close association of the state with Islamic institutions, because of his confrontation with the Sultanate and the Allied Powers at the end of the First World War. See: Barkey 2008 on the relationship of the Ottoman dynasts and the religious elite; Hanioglu 2011; Kuru 2009; Kandiyoti 1991b on of early republican leaders’ approach to public religion; Kuru 2009; Kerslake, Oktem and Robins 2010; Berkes 1964 on secularism and nationalism; and Yilmaz 2005 on family law in Turkey.

98 See: Hazard 1965; Creevey 1996 regarding Senegal; Layish 1991; Mayer 1977; Anderson 1986 about Libya; endnote 69 concerning Malaysia and Sri Lanka; Sonbol 2002; Welchman 1988; Abu-Odeh 2000 about Jordan; and Joseph 1991; Stilt 2004 about Iraq.

99 The Istiqlal party was ambivalent about the monarchy, but the restriction of its support to urban areas limited its influence over Moroccan nationalism.

100 See regarding Lebanon: Sulh 2004; Joffe 1985; about Morocco and Algeria: Stora 2003; Maddy-Weitzman 2005; Catalano 2010; concerning Syria: Devlin 1991; Hinnebusch 1993; and about Iraq: Joseph 1991; Stilt 2004.

101 Even when the Hindu nationalists, who had little support among Muslims and Christians, led the Indian government from 1998 to 2004, they had coalition partners that enjoyed significant support among these groups.

102 Feener 2007; Hooker 2008; Cammack and Feener 2007

103 Cohn 1996; van der Veer 1994

104 Bowen 2003; Feener 2007; Cammack 2008

105 Jaffrelot 1996 discusses Hindu nationalist claims to a monopoly over indigenous Indian culture.

106 Pandey 1990 highlights the forces that pulled Indian nationalists away from cosmopolitan modernism to Hindu majoritarianism.

107 Zaman 2002; Metcalf 1982

108 This was the case although some civil society mobilizers demanded the incorporation of certain Islamic norms (e.g., regarding restrictions on testamentary rights) into Hindu law.

109 This was also because more extensive changes had been made in Muslim law through the last colonial decades.

110 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

111 Iran under the Pahlavi monarchy, Pakistan until the 1970s

112 Morocco until the last decade

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

114 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.

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

116 Reform was early but not sustained in Egypt.

117 Reform was late in India.

118 Iran during the Pahlavi monarchy

119 Pakistan until the 1970s

120 Morocco until the 1990s



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