Academia on the Frontline

For reasons ranging from the global crisis and the shrinking job market to the disillusion with the establishment of academia but also including wanderlust, identity, worldviews, research, and not least the proactive hiring of mushrooming universities around the world, an increasing number of academics at different career-stages spend time at institutions located in socially disadvantaged environments, politically unstable areas, regimes of dictatorship, segregated contexts, and war zones. For some this means returning home, for others it means moving far away from the place/s that they call home.  As a result, while there is an increasing level of confrontation with issues and challenges that until recently have been typical of fieldwork settings, universities are also becoming the crossroad of multi-layered interests. Academia on the Frontline aims to explore these dynamics, and understand the strategies and the solutions worked out by academics with experience in the above-mentioned settings. Proposed but not exclusive foci are: originality and authorship; participatory research, authority, and representation; government and non-government funded research; advocacy; outsourced and outsourcing research; (cultural) mediation; gender, class, ethnicity, belonging, sexuality and power at the workplace; teaching, learning, and curricula adaptation. Multidisciplinary approaches from academics in all domains are solicited. Authors may use a variety of methods non exclusively including qualitative, quantitative, historical, ethnographic, financial, economic, and management analysis. Abstracts between 500 and 1000 words plus a short bio should be sent to Livia Holden at livia.holden@lums.edu.pk or liviaholden@insightsproduction.net. Feedback and advice are most welcome too. ‘A/REF’ publisher is envisioned.

Law practices and property rights in Muslim rural contexts (CFP)

« L’éventail du droit : pratique du droit et propriété dans les mondes ruraux musulmans de l’Afrique et de l’Asie »

Yazid Ben Hounet and Alice Wilson

 

 

L’étude du droit en milieu rural, et dans le contexte des sociétés musulmanes, a de manière générale privilégiée celle de la sharî‘a (droit musulman) et/ou du ‘ûrf ou de l’adat, définis selon les auteurs comme pratiques ou droits coutumiers. La revue Etudes Rurales a d’ailleurs consacré un numéro entier à ce sujet en 2000 (Prégnance du droit coutumier) s’agissant des sociétés rurales de l’aire arabe et berbère. Loin de contester l’intérêt de ces objets, il nous semble néanmoins que leur surinvestissement a contribué à rendre peu visible les autres aspects du droit, mais également la complexité des pratiques du droit telles qu’elles existent de nos jours, dans les sociétés rurales musulmanes.

Plus généralement, l’étude du droit et des institutions judiciaires a été largement négligée, dans les mondes musulmans, à l’exception précisément de ce qui touche à la référence à l’islam. Ceci vaut à tous les niveaux : la formation juridique, l’élaboration du droit, le personnel judiciaire, les professions juridiques, la gestion policière et judiciaire de la criminalité, la prise de décision judiciaire, l’exécution des jugements, l’application des peines, les régimes d’incarcération, les justices parallèles, les justices d’exception, l’impact de l’aide extérieur sur les réformes, le sens commun du droit et de la justice, l’organisation spatiale, sociale et statistique de la justice et de sa mobilisation, etc. Il en résulte un certain nombre de biais ou de lieux communs sur le droit et la justice dans les mondes musulmans, qui sont source de nombreuses erreurs d’analyse. La survalorisation du référent islamique et les erreurs d’interprétation qui l’accompagnent est d’autant accentuée qu’elle est en quelque sorte validée par les acteurs politiques : les mouvements islamistes (et leur revendication d’« appliquer la sharî‘a islamique) et les gouvernants (qui se sont alignés sur ce registre de revendication).

Il n’est pourtant pas imaginable de s’intéresser à ces pays sans chercher à comprendre les enjeux que le droit non seulement reflète, mais aussi organise et constitue en lui-même, tout comme on ne peut considérer le droit de ces pays sans prendre la mesure de tout l’éventail des pratiques qui entourent son élaboration, son administration, son application et son vécu.

 

Le numéro proposé entend contribuer à l’étude anthropologique du droit dans les sociétés rurales en tout ou partie musulmanes, et ce à partir d’un objet précis, au cœur du droit : la propriété, le contrat qui porte dessus et sa transmission. Les contributions s’articuleront méthodologiquement sur la combinaison d’une ethnographie des pratiques, d’une anthropologie linguistique et d’une étude praxéologique du recours aux règles de référence. Ce numéro souhaite poursuivre un double objectif. Il s’agit, d’une part, de construire et de mener une anthropologie praxéologique du droit de la propriété et de son transfert, avec l’identification de ce vers quoi s’orientent en contexte et en action les gens impliqués dans les activités qui lui sont liées. D’autre part, il vise à montrer que le référencement à l’islam est occasionnel et que la dynamique du droit n’y est pas globalement subordonnée.

Le premier objectif vise à opérer une avancée substantielle dans les sciences sociales du droit. Il consiste à poser les bases d’une anthropologie juridique ancrée dans la description des pratiques, à montrer comment le droit s’accomplit dans un rapport actif à des règles travaillées par les usagers et à traiter de la question du droit à partir des pratiques, du langage et des textes ; et aussi à démontrer le caractère inextricablement lié des déterminations économiques et juridiques vers lesquelles s’orientent les personnes impliquées, c’est-à-dire à réfuter l’idée d’une anthropologie d’un droit dissocié des considérations économiques (et inversement).

Le second objectif consiste à évaluer la place de la référence à l’autorité du droit islamique. Sans doute la référence à l’autorité de l’islam est-elle occasionnelle et, quand elle apparaît, s’inscrit-elle dans la banalité et la routine de l’accomplissement pratique de l’activité juridique. Faut-il en conclure pour autant à l’inexistence de l’autorité islamique de la règle ? C’est davantage vers une respécification de la question qu’on s’engagera : au lieu de se demander quelle est l’autorité islamique de la règle, on cherchera à décrire, en contexte et en action, les modes d’usage et de référence à la règle de droit et la production toujours située et ponctuelle de son autorité. Avec ce qu’elle peut avoir, éventuellement et seulement au terme de l’analyse, de spécifiquement islamique. C’est en fin de compte la théorie même du droit qui se trouve interpellée, en ce sens que pointe en filigrane la question de savoir si la référence à l’islam génère (ou non) la constitution d’une famille juridique spécifique.

 

Les sociétés rurales apparaissent dès lors comme des milieux adéquats pour évaluer les formes de référencement aux règles du droit et les pratiques qui en découlent et/ou qui les expliquent ; les rapports actifs aux règles y paraissent en effet davantage complexes en raison des pluralités de normes souvent évoquées s’agissant de ces sociétés. Cela nous permettrait également de renouveler notre compréhension des pratiques du droit au sein de ces sociétés, en ne posant plus la sharî‘a et le ‘ûrf ou âdat comme horizons de la pratique du droit.

 

Pakistan: National Commission on the Status of Women Bill 2012

On the 2nd February 2012 the Senate approved the Status of Women Bill that provides for the establishment of a commission with the mandate to examine policies, programmes and other initiatives on women’s rights and gender equality, and to make recommendations.

More

Pakistan: Bill against Women’s Disinheritance

“The bill recommends punishment for giving female [sic] in marriage or otherwise in ‘badla-e-sulh’, wani or swara. It says, “Whoever gives a female in marriage or otherwise compels her to enter into marriage, as ‘badla-e-sulh’, wanni, or swara or any other custom or practice under any name, in consideration of settling a civil dispute or criminal liability, shall be punished with imprisonment of either description for a term which may extend to seven years but shall not be less than three years and shall also be liable to fine of five hundred thousand rupees.”

Besides the bill proposed prohibition of depriving woman from inheriting property, prohibition of forced marriage and prohibition of marriage with the Holy Quran. The violators will be handed over either imprisonment or a fine of five hundred thousand rupees for each crime.”

From DAWN 12.12.2011

 

Prevention of Anti-Women Practices (Criminal Law Amendment) Act, 2011 

498A. Prohibition of depriving woman from inheriting properly.- Whoever by deceitful or, illegal means deprives any woman from inheriting any movable or immovable property at the time of opening of succession shall be punished with imprisonment for either description for a term which may extend to ten years but not be less than five years or with a fine of one million rupees or both.

[…]

(ii) after section 498, in column 1 and the entries relating thereto in column (2) to (8), the following shall be inserted, namely:

1.  2.  3.  4.  5.  6.  7.  8. 
“498A Prohibition of depriving woman from inheriting property Shall not arrest without warrant Warrant Not bailable Not compoundable Imprisonment of either description for a term which may extend to ten years but not be less than five years or with a fine, of rupees 10,00,000/- or both.” Court of sessions”

In the Shadow of Shari’ah: Islam, Islamic Law, and Democracy in Pakistan

In the Shadow of Shari’ah: Islam, Islamic Law, and Democracy in Pakistan is the most approachable yet detailed book on the conflicting relationship among custom, Islamic law and state law in Pakistani Punjab with regard to property rights and women’s disinheritance especially. This book grounds on data collected in archives and law courts in Lahore, Sialkot, and Sarghoda, the three most popular urban concentrations of Northern Punjab in Pakistan. By interweaving micro-sociology, anthropology, and history, the author not only achieves an unprecedented description of the reasons for the massive number of property related litigation afflicting all kinds of jurisdictions in Punjab, but also shows the discrepancies between the purported terms of the litigation and the aims that are in practice pursued by the litigants. In Nelson’s words ….

…. It is the opinion of this reviewer that many of the processes, admirably described by Nelson with precision of details and methodological rigor as being the features of Islamic contexts, are also common to non-Islamic contexts: namely the delay tactics and the shifting arguments in order to circumvent the law. Nevertheless this book is compelling reading ….

Full review under publication on the Journal of Immigration, Asylum & Nationality Law

“Divorce Among Indian Muslims. Survey Report from Bombay and Pune”

Munira Merchant, 1993, “Divorce Among Indian Muslims. Survey Report from Bombay and Pune”, Manushi, 77 (July-August): 9-12.

 

This really short paper is interesting because it is based on a survey on a wide sample (100 couples) of Muslim divorced women and highlights important aspects of disputes over property and maintenance both within community forums (kazi, marriage councils) and at the state judicial level. The aim of the survey was to study the impact of the provisions in the law (Muslim Personal Law, Sharia Act of 1937, Dissolution of the Muslim Marriage Act of 1939, Muslim Women’s [Protection of Rights on Divorce] Act of 1986) in matters such as amount of mehr settled, the actual payment of mehr or reasons for non payment, return of dowry, divorce procedures and issues of maintenance.

Vast majority of women who initiated the divorce applied to a kazi or a marriage council, while only three sought divorce through the Dissolution of Marriage Act, as their husbands were missing for more than four years (this is one of the provisions for which women can be granted divorce under the Act).

Among women who received back their dowries after divorce, a significant number belonged to the Shia sect, so that the marriage councils regulated the divorce, thus ensuring that the women took back what belonged to them.

Sixty women did not received mehr (which ranged from as little as Rd 100 to as much as Rs 35.000). It is interesting to report here two cases, where the mehr amount was fairly large. “The husband would not divorce the wife because he would have to pay the mehr. After a long sepration, the wives initiated the divorce proceedings, thus losing their right to the mehr. Thus, mehr, especially a large sum, which is supposed to be a protection for the wife and a deterrent to a hasty divorce, does not always work in favour of the wife” (p. 10).

Seventy-seven percent of the women did not receive any maintenance after divorce.

Author conclusions on survey data is that “it is quite evident from the findings of this study that a husband has greater choice and control in the divorce strategy and its outcome. The results indicate that the women are not getting their rightful dues in matters of maintenance, dowry, mehr and child support even within the tenets of the existing personal law” (p. 11).

In the final section, where author provides some possible ways to change situation, it is interesting to note that as in Banu paper (reviewed at page 15), the point is made that both Muslim men and women are quite ignorant about legal provisions and Koranic injunctions. In author’s opinion, an improvement in that direction could make men more aware of women’s right and their own obligations. Finally, in relation to  Muslim Women’s [Protection of Rights on Divorce] Act, it is pointed out that  even if it has made possible for the wife to be paid her mehr, dowry, maintenance for the iddat period and child support, it does not specify what constitute “reasonable and fair provision2. Thus, in author’s words, “there is scope for justice within the constraints of law. With the help of forward thinking lawyers and judges, women could get a fair share as demonstrated by two decisions of Justice Rekha Dixit”. This point is important because, as signalled also by Basu in her book (see review page 8-9), judges have the opportunity to interpret laws in such a ways to even modify legislator’s purposes. Attention should thus be given not just to norms as closed objects, but to discursive practises, ideological frameworks and institutional contexts within which they become salient in building legal, social and political outcomes.

“Muslim Women’s Rights to Inheritance. Shari‘a law and its practice among the Dawwodi Bohras of Udaipur, Rajasthan”

Zenab Banu, 1995, “Muslim Women’s Rights to Inheritance. Shari‘a law and its practice among the Dawwodi Bohras of Udaipur, Rajasthan”, in Engineer A. A., Problems of Muslim Women in India, Orient Longman: Hyderabad: 34-39.

This short paper addresses the case of the women belonging to the Dawoodi Bohras sect in Udaipur attempting to answer to the following questions:

  1. To what extent are women’s rights to inherit honoured in Islamic society? Do Muslim women actually get their share of movable and immovable property as prescribed in the Shari’a law?
  2. Is it true that Muslim are highly conscious about the Shari’a laws? Do they strive to obey the Shari’a laws in their everyday lives?
  3. Are the Shari’a laws obligatory in nature and do they apply equally to all men and women? Or are the provisions of the Shari’a laws implemented so as to bestow domination to male members of the Muslim community?

It investigates such issues by drawing on interviews (oral enquiry method) to a sample of 50 persons of different ages, educational background and income groups. Results show an overwhelming majority of people ignorant of Shari‘a laws, even if Dawoodi Bohras are known for their high literacy rate. Respondents who were asked to express their knowledge about women’s rights inheritance according to Shia laws (Dawoodi Bohras are a Shia Ismaili sect) were mostly confused while expressing their knowledge. Answers both demonstrated a restricted awareness of laws and highlighted actual practises really far from entitlements foreseen by law. Women received only few thousand rupees in cash or credit, while other immovable and movable property were distributed among the sons. Thus, even if Bohras claim to be true followers of Islam, the author highlights the fact that “they feel no guilt or accountability to God and Prophet for violating the laws of inheritance” (p. 37).

When unbalanced divisions of inheritance take place in the lifetime of the fathers, the daughters seldom object. Though, if the matter is decided after his death, then a sister may contest the will. According to Banu’s data, “Objections are usually confined to words alone. It is on rare occasions that a daughter/sister dares to take the matter to a civil court” (p. 38). In her opinion, official justice is rarely resorted to by women because such cases breed animosity and “destroy harmonious brother-sister relationship which is such a vital element of the Bohra social structure” (p. 38-39).

The paper ends with a short reference to mehr (dower), which is seen as a potential effective instruments in providing a woman financial security after her husband passed away. But, also in this case, the author comments that “unfortunately, among Dawoodi Bohras, the dower fixed is usually a nominal sun […]. Consequently, this practise also deprives a woman of the opportunity to receive something substantial from her husband property”.

“Women, Land, and Law: Dispute Resolution at the Village Level”

Gupta, J., 2005, “Women, Land, and Law: Dispute Resolution at the Village Level”, in Basu, S. (ed), Dowry and Inheritance, London and New York: Zed Books.

 

This paper is part of the report of a project carried out in West Bengal between 1996 and 1999 on the extent of rights women have over productive forces of society. It focuses on the way in which the individual and collective interests are being addressed through dispute resolutions at the village level and whether they are being raised at all in the process of mediation called gram shalishi. It investigates the relation between women demands about rights (mostly property rights), social and economic changing context (changing mostly due to macro policies of Bengali Government), patterns of dispute resolution (whether in formal or in informal legal sphere) and dispute outcomes.

Most of women demands show a clear consciousness of the chance to improve their situation through a revised system of inheritance and property attribution. Requests range from equal rights to inheritance to independent ownership of productive resources, from equal rights to the homestead of the parents, to stricter legislation to deal with multiple marriages, to the request of Government intervention to end the menace of dowry. The Muslim women expressed deep dissatisfaction with the practice of polygamy and felt totally betrayed by the changes in the maintenance provisions for Muslim women. They also complained about the denial of their share of inherited property in practice. Even if they were debarred from working as agricultural labourers and from working they own fields, they pointed towards the need to recognize processing of agricultural produce and preparation of it for the market as part of social production. They thus claimed a role in the agricultural production process, and a consequent independent share of property/land and equal right to matrimonial property. Interestingly, disputes involving women in the courts only rarely concerned property issues, and according to lawyers property inheritance disputes are on the decline, probably because of a contemporary decline in the rate of accumulation of real property, especially land. Majority of property related disputes were resolved and addressed through community participation. Reasons for that are identified in time saving rather than in success rate for women, but also in other factors such as expenses and fear that once matters go to the court all options of negotiation are closed. The author analyses therefore functioning and outcomes of gram shalishi, that is forums of mediation at village level composed by members of panchayat, civil society and village (women’s organisations, peasants’ organisations, all members of village community, parties in dispute and their family and friends).

It is interesting to note that cases offered for gram shalishi are on the rise, and that when cases are discussed before a gram shalishi they become far more complicated than what the immediate cause of dispute is, since participation of the whole community compels to take into account a series of facts and considerations usually kept out from official courts. There is an increasing intervention by gram shalishi in cases of denial of the sisters’ rightful share of property by brothers, and property cases are more widespread among the Muslim community than among non-Muslims. I quote author’s considerations on such matters since they could be of use for us:

 

“[…] among the Muslims, share in parental property (even agricultural land) of the daughters is determined according to well defined principles just as denial of matrimonial property to Muslim women is also worked out on well-defined principles. While intervening in cases of denial of parental property by brothers, gram shalishi can adhere to the existing principles in law, be it in relation to Muslim women or non-Muslim women. It is in the areas of denial even in the formal law, that gram shalishi play an important role in extending the notion of rights.” (p. 206)

 

As already told, gram shalishi have to take into account a series of considerations and positions within social context which force them to make the notion of ‘rights’ a variable. The interesting conclusion of the author is thus that:

 

“[W]hile the formal laws have attempted a broad definition of the concept of rights commensurate with the concept of the family, existing property relations, social relations of labour, accumulation, production, consumption and distribution, and the state, the dynamism observed at the level of reproduction of everyday life deviates from it and sometimes works in conjunction with the wider processes of law and law making. The incompatibility between the formal guidelines for the larger social process and how everyday life patterns reproduce themselves, lead us to conclude that there is enough room for negotiation between the two processes and none is frozen in time” (p. 207).

“Coniugality, Law, and State: Inheritance Rights as Pivot Control in Northern India”

Chowdhry, P., 2005, “Coniugality, Law, and State: Inheritance Rights as Pivot Control in Northern India”, in Basu, S. (ed), Dowry and Inheritance, London and New York: Zed Books.

 

This paper by Prem Chowdry focuses on the relationship between inheritance rights of women and widow remarriage, and the role which the state has played in controlling and regulating it, both in colonial and post-colonial periods. The main argument, as stated by the author, is that “the custom of widow remarriage, as practiced in this region [the  Haryana-Punjab region object of the study] in its karewa or levirate form, remains in a decisive way the most effective device to prevent women exercising their right in inheritance as widows” (p. 171).

This study, though dealing exclusively with Hindu practises, is particularly interesting for us for the methods it applies and its use of historical and legal sources. In fact, it manages to delineate really  pregnant connections between customary law, state law and governance policies through the analysis of official historical documents, law case studies, and ethnographic data.

The popularity of karewa among the majority of landowning classes emanated mainly out of the need to retain landed property within the family. The main reason for making the marriage arrangements within the family was to transfer control of the deceased husband’s land from the widow (who succeeded to a life estate in the absence of male lineal descendants) to his brother or to a patrilineal family member, because a widow who remarried lost all her rights to property, even if she married her husband’s brother. Colonial state, which selectively adopted customs and made them legally enforceable, was blatant in its attempt to encourage widow remarriage through administrative and judicial agencies. At the lower judicial level, colonial discourse was almost exclusively in favour of women’s in-laws, and only very rarely women could see recognised their rights to property [Chowdhry reports the words of a English official stating that “women are not qualified to manage their land themselves” in order to justify attribution of property to deceased husbands’ relatives rather than to widows. I quote this sentence because it is strikingly similar to argument number 7 in the reviewed paper by Kishvar and Manita at page 16]. As the author interestingly shows, British officials were quite aware of the fact that custom of karewa snatched away whatever little right of possession women in Haryana-Punjab had come to acquire as widows.

In post-colonial period, the 1956 Hindu Succession Act changed radically succession laws. The earlier limited ownership right afforded to the widows was converted into full and absolute ownership. As the author interestingly points out “cultural and ideological constraints severely militate against a woman claiming her inheritance as a daughter and a sister. Consequently the right to inherit land as a widow, to a large extent, is almost the only way in which a woman can inherit land directly. As a direct and absolute beneficiary, it is the widow, rather than the daughter or sister, who emerges as a major threat in the post-colonial situation”.

The author reports a series of court cases – either brought by male collaterals challenging the rights of widow on a variety of grounds, or by widows challenging the right of the male collateral over deceased husband’s property – all decreed in favour of widows on the basis both of traditional customary rights and of the 1956 act. The effect of this trend – together with that of policies implemented in favour of “war widows”, or widows of those who died in active military service, who received a large sum as compensation and were entitled to numerous benefits – was to increase the pressure upon widows to enter into a levirate marriage and led paradoxically to the strengthening of the karewa practice in the post-colonial period. The analysis of the different strategies adopted by male collaterals to force a woman into a levirate marriage (such as boycotting widow remarriages with men external to deceased husband’s family to the point of interrupting ceremonies even against caste panchayat decisions) shows interestingly how “custom, law and the state have all combined successfully to regulate conjugality in safeguarding the patrilineal inheritance interests in vastly different socio-legal conditions prevalent under the colonial and post-colonial situations” (p. 188).

“Inheritance Rights for Women. A Response to Some Commonly Expressed Fears”

Madhu Kishwar, Ruth Vanita, 1990, “Inheritance Rights for Women: A Response to Some Commonly Expressed Fears”, Manushi, 57 (March-April): 3-9.

 

This committed paper deals with some of the fears commonly expressed in mainstream (male) political discourse regarding women’s inheritance rights in order to confute them and provide alternative proposals for actually getting women equal inheritance rights. Even if it address mainly Hindu law and Hindu customary legal practice, it could be useful for us in as much as many of these “fears” are arguments used as well for denying to Muslim women their entitlements in family property. The seven fears/arguments discussed in this paper partially overlap with those “myths” which Srimati Basu deconstructs in her book (see review p. 8). These arguments are actually found in most of the works reviewed as justifications by social actors (both men and women) for denying/refusing women’s inheritance shares (cfr. Basu, Jeffery, Banu).

1)    Land fragmentation. It is often claimed that giving a share in family land to daughters will result in excessive fragmentation, making each holding uneconomical. Authors highline how the problem of land fragmentation is persistent today, even if women are denied property, and that solution to such matter should be looked for instead in implementation of honest land reforms. As they argument, “denying women a share in land means making them the most powerless section within already powerless poor peasantry. Certainly, if a piece of land can be divided between three sons, there is no reason why it cannot be divided between two sons and a daughter” (p. 3).

2)    The daughter goes away. This argument maintains that since daughter marries and goes to her husband’s house, which is often far away, she cannot cultivate her parental land or run her parental business. As a corollary of such argument, it is often said that since the woman becomes a member of her husband’s family, she should be restricted to inheriting a share of his parental property.

3)    Sons look after parents. This argument runs: since sons, not daughters, support and look after parents in their old age, sons should inherit the parents’ property. Authors confute it by claiming that when even parents die young daughters don’t get their share. Furthermore, it is usually the daughter-in-law, and not the son, who takes care of old parents. This produces a particular inversion by which a daughter-in-law, who is forbidden to care for her own parents, is expected to channel her emotional energy into serving her parents-in-law.

4)    Brother-sister love will be destroyed. Giving daughters property will breed animosity, even litigation, between brothers and sisters, destroying the harmonious and beautiful brother-sister relationship which now obtains. According to the authors, this argument is based on untenable generalisations, and pretends to ignore that brother-sister relationship in many communities is structured by the power of man and the powerlessness of woman: it does not make for mutual support, but compels the brother to be a perpetual giver and the sister to be a perpetual taker, setting often husband’s wife and sister as rivals.

5)    Dowry is the daughter’s share. In authors opinion, dowry cannot be considered a daughter’s share because: a) it is not in her control as property is in son’s control; b) it functions as a bribe to her in-laws to keep her in their house, while property enhances the son’s independent standing; c) dowry generally consists in extravagant display which enhances family status, and of cash and items which are expendable and do not appreciate in value; while property often comprises income generating assets as land, house, tools, machines.

6)    She will inherit doubly. This argument affirms that a woman will end up getting double rights, inheriting both form her father and from her husband. It ignores the fact that men as well could possibly inherit from both their fathers and their wives…

7)    Women cannot manage property. It is sometimes objected that since women have less experience and resources for managing property, the effect of the control of property nominally inherited by a daughter will pass on to her husband and his male kin.

“Frogs in a Well. Indian Women in Purdah”

Jeffery, P., 1979, Frogs in a Well. Indian Women in Purdah, London: Zed Press

 

The book addresses a theme that only partly fits with our research topic. Indeed, the main focus of “Frogs in a Well” is the analysis of purdah (“seclusion”, litt. “curtain”) practices of Indian Muslim women, specifically those experienced by the wives and daughters of the custodians (pirzade) of the shrine of the Muslim Pir (Saint Hazrat Nizamuddin Auliya) in Delhi. In our perspective, the interest of the book lies in the fact that it connects women seclusion practices with wider paradigms of social organisation, economic status, education, and marriage and property patterns. Analysing overall women conditions in India in terms of their being inserted within a highly stratified social system, Jeffery points out how purdah

“is not just a rural phenomenon. It has also been long associated with the urban elites, with the royal courts and the households of their followers, and with wealthy traders and businessmen. In stratified social systems, a common feature is the emulation of the rich by the less wealthy; and to this day, in India, purdah is widely – though not universally, it must be stressed – associated with respectability and family honour. Purdah is part and parcel of stratification in India” (p. 31).

Purdah, therefore, cannot thus simply be regarded as an Islamic institution, although ‘Islamic ideals’ or notions of ‘honour’ and ‘shame’ are important in providing religious and moral justification for the seclusion of women. While this framework of analysis is borrowed from the works of Goody (1976) and Boserup (1970), another important dimension the book is more concerned with is that of the pirzada women within their families, and the interplay between stratification at the wider societal level and stratification within the family. Here, factors as working outside home, household structure, marriage patterns, and transfers of property (i.e. dowries and inheritance) are taken into consideration and analysed in relation to societal stratification. The paradoxical conclusion of such analysis is that the more a woman acquires high status in the overall stratification system of Indian society by being inserted through marriage in a wealthy and respected family, the more her condition within that family will be a subordinate one.

After an overall presentation of the analytical framework, the author then proceeds (charter 3 and 4) by analysing the division between public and private spaces (the first, the Pir shrine, the space of men and of economic activities; the second, the pirzade “village” and the house, the space of women and of their duties) and the differential control of men and women over income and reproductive power of women themselves. Jeffery identifies three dimensions, political, ideological and economical ones, to the subordination of women and addresses them in relation to the ethnographic data collected during her fieldwork. The most interesting results for our research topic are those related to women property and inheritance. As it has clearly emerged also in other works here reviewed (see Basu, 1995 and Moors, 1995), women rarely inherit ancestral shares from their parents. The justifications for that are framed often in similar ways. In Jeffery’s words:

“Several women said that the shares would become impossibly fragmented if sisters took their portion along with their brothers. One elderly women put it this way: ‘These shares are undoubtedly our haq [right] but a woman can ‘forgive’ her brother so that he no longer ha any obligation to share the inheritance with her. That’s what I did with my brother – after all, he’s a poor man and I’m well settled here. So why should I bother to press my claims?’” (p. 53-54).

According to Jeffery’s data, among pirzade few women would receive their entitlement, unless their parents were wealthy or a woman had no brothers or close male relatives. Quoting again from the book: “Several of the pirzada women pointed out that a woman may weave her rights, or ‘forgive her brother, provided that she does so ‘out of happiness’ and not ‘under pressure’. If a man dies without giving his sister her due, he will suffer in the after-life, unless she has forgiven him. But it is considered honourable for a women to forgo her rights” (p. 56). Discussion on marriage transactions, specifically on dowry (jahiz) and mahr, shows how the first works in a way  much similar to dowry in Hindu contexts, while the second is often left unpaid through a set of strategies even in the case of divorce. Mahr as well can be “forgiven” by women, always ‘out of happiness’, and it looks like this is what happens in most cases. As it regards how men discussed the matter with their wife, a women told: “[…] if a woman asks her husband to give her the mahr, he’s quite likely to persuade her to forgive him. He’ll say he’ll give it to her in the after-life, and she’ll get a pearl palace to live in in Heaven – or something like that.” (p.58). Other women suggested that men would use the mahr as a bargaining point over the custody of children if there was any question of divorce, giving the wife an option of taking the mahr or being allowed access to her children. Furthermore, mahr are often so trivial that they would be of little use. The position of a bride in her in-law’s home is so potentially vulnerable that there was no point in pressing the issue.

The second part of the book (chapters 4-7) deals with relation between ideology and agency, mostly by referring to processes of internalization of  normative behavioural patterns on the side of women. Purdah is thus analysed as a set of practices both forced by men’s control and embodied in women world view. Women themselves become agents of perpetuation of their own seclusion through socialization of daughters/sons into the cultural world they live in. Methodogically, Jeffery investigates women inclusion within discursive and practical production of their seclusion trying to elaborate sets of behavioural norms. She does it by giving attention to the taken-for-granted world they live in both by directly observing women practices and by identifying reactions of the pirzade to breaches of norms (their verbal comments and their reactions of disquiet or horror when rules are broken). In author’s world:

“[…] the taken-for-granted world of the pirzade gradually emerges through hearing them discipline their children, or through their strident outrage at the ‘shameless’ misdemeanours of other people. But this world is also reflected in the behaviour of the pirzade: evidence of internalization can come from watching customary interaction and modes of behaviour which are second nature for them . Mere statements of norms can only hint at internalization, while the women’s commitment to the status quo is more forcefully suggested in their unquestioning adherence to those norms in their behaviour” (p. 91-92).

Such analytical model would “produce” a world completely close in itself, a self-perpetuating social system with little room for change, at least from within. For this reason, Jeffery gives voice to  complaints of pirzade women and describes their resistance practices, showing how the system is not completely accepted by the women, who both elaborate major critics to it and have developed strategies to bypass some of its constraints.

At the end, purdah is presented as a “negotiated privilege”, an expression that intends to highlight the ambiguity of a practice which is both abhorrent and attractive for women, both deprivation and privilege. In author’s words, “the pirzada women are pulled in contradictory directions, and the interest which they have in maintaining – rather than undermining – the status quo has too be assessed too” (p. 171).

 

References

Goody, J., 1976, Production and Reproduction, Cambridge University Press

Boserup, E., 1970, (reprinted 1997), Women’s Role in Economic Development, London: Earthscan

“She Comes to Take her Rights. Indian Women, Property, and Propriety”

Basu, S., 1995, She Comes to Take her Rights. Indian Women, Property, and Propriety, State University of New York Press

 

This book is a really useful reference work for our project. Even if it focuses on issues related to property and inheritance in Delhi urban contexts almost exclusively concerning Hindu women (very few references are made to Muslim women cases, though some interesting discussions on such matters are present) its methodological and theoretical framework could help us in formulating some work hypothesis, and its results could provide us with useful material upon which to develop our enquiry.

The main focus of the work is on the ideological mechanisms through which systems of property transmission are perpetuated. “Myths of tradition” which enforce differential gendered access to resources, property, and rights are analysed and deconstructed empirically through surveys and ethnography of three Delhi neighbourhoods, selected by the author according to the socio-economical status of their inhabitants. Furthermore, we are offered the analysis of several law cases dealing with disputes over property. Here, law is presented as an ambivalent field: on the one hand, it functions sometimes as a strategic ally to women rights claiming, but, on the other hand, rhetoric characterisations of gender, entitlement and justice operating in the cultural realm saturate the legal framework. In author’s words, “the opinions of judges are constituted through the very discourse that guides other property decisions” (p. 218).

A first concern of the author is analysing the relation between ideology and agency, which is translated here as the enquiry into “myths” related to women property (property transmitted both as marriage prestations and as inheritance), and women ideas and practises which either subsume or challenge them. Among the strongest arguments preventing women from claiming their share are eldercare, dowry, long-term help to women from natal families, women’s severance from their natal homes upon marriages.

Basu provides us with data collected through surveys in a sociological fashion, and integrates them with qualitative ethnographic data and collected life stories. Data presented show how money invested by parents for daughters’ dowry, differently from what is usually believed, often compare in amount with expenditure incurred for sons’ marriages, being anyway much inferior than what would be a daughter’s share in her natal family according to provisions of law. The idea that dowry substitutes inheritance share, often held even by women, is thus  groundless according to economic principles. Even so, and differently from cases reported in other researches (see review of Gupta, J.), women value positively dowries as the only way to get part of natal family property, maybe the only property asset they can rely on. Generally, the amount of property owned by women is much less than what is owned by their male counterparts (husbands or brothers). This is often culturally justified by the claim that women get property through husbands and affinal families while men directly inherit from natal families. Data show instead that, while men routinely inherit familty property, women do not always succeed to their husbands’/in-laws’ property either formally or informally. The disinheritance of women from natal family property is ubiquitous, and extreme family wrath comes down upon women asserting any claims to natal property (the haklenewali, from which the book takes its title – that is the woman who takes her rights – is indeed a stereotypical figure strongly condemned not only by men, but even by the very women).

Basu manages to deal with three levels of enquiry, establishing connections which link them and highlighting critical points. On one side, she provides an analysis of ideology, that is mainstream discourse and considerations collectively shared about property, position of women in relation to it, differential access to and rights in wealth, resources and goods. On the other side, she shows through detailed data on families (income, properties, access to schooling and work, and so forth) how in practice economic and symbolic capital is differentially held according primary to gender and then to class distinctions. In this way, ideological presuppositions are confuted on the basis of actual data. Finally, and more interestingly, Basu analyses the relation between the two levels discussed through a twofold strategy. On one side, she investigates into women emic perceptions about wealth and property, bringing on the surface resistance discursive strategies and resistance practices on the side of women. On the other side, she analyses law cases showing how widely shared cultural assumptions inform the substance of legal decisions. Even in cases won by women, often judges inscribed female nature or women’s rights in distinctly patriarchal ways, and created easy legal remedies at the cost of ideological disempowerment of women. Law is seen thus as a site of deep ambivalence, a space for potential revolution that never becomes one. In author’s view, past, in the form of ‘custom’,

 “continues to dominate in post-colonial India, establishing not an ancient or mythical social distribution of resources but cementing contemporary structures of gender and class privilege. Division evoking rationales of dowry as inheritance, virilocality determining caregiving, and the joint family living together off the land, depict a world where usufructuary rights seem reliable, wages in the marketplace have little effect on subsistence or assets, joint family residence is viable, and daughters married as infants to far-off places retain limited connections with families of origin. They are transliterated smoothly into a world of increasing nuclearization of families, immense reliance on wages and capital, regular contact with adult daughters, and awareness of domestic violence and the possibilities of divorce, with the distribution of property further enhancing vulnerabilities of gender and class in the urban milieu. These spectres portray a shimmering past that diverts attention from current material conditions.” (p. 230).

For our specific topic, it will be useful a brief discussion of the two parts of the book where the author addresses issues related to Muslim women and property. Of the three cases analysed, the first concerned a woman’s mother and paternal aunts who had inherited legally lands from their natal families. Though, land was cultivated along with the rest of the family land by their brothers.

The second case  was that of a woman disinherited from family property. Her comments reflected hegemonic ideologies. In fact, she states that if she had claimed her share, her brother would have broken off social relations with her, she would no longer have been able to make lengthy visits to her natal home, and she had already been given property in the form of wedding gifts. The author concludes the section as follows:

 “In effect, women had limited or no access to natal property in each of these Muslim families. Customs of virilocality kept women even from enjoying the property they supposedly inherited. […] Ultimately all these women were recipients only of occasional an uneven gifts from the natal family, and distanced from the full benefits of their natal family wealth. Their situation varied little from that of Hindu women” (p. 69).

 The second part where Muslim practices are directly addressed is when the author reports of mehr payments. According to ethnographic data, mehr was often symbolic, and on the nuptial night the groom usually pled inability to pay and asked to be forgiven his debt, while the bride was usually told by her in-law that the ‘nice’ thing to do was agree (see also Jeffery).

Mehr is indeed a religious matter and it extends even beyond death unless formally forgiven. Though, Basu reports some women saying that it was better for a woman not to forgive the mehr because  then the husband was no longer as attentive and could easily divorce her. In an opposite position stands the belief held by someone that a high mehr would correspond to the “selling of a daughter”. In practise, however, mehr rarely functioned in the form a woman’s fund of resources as intended. Instead, it worked as a socio-religious counter for women rather than a security fund proportionate to the groom’s family resources.

Non-State Law and Governance – LSA ANNUAL MEETING

Law and Society Annual Meeting
June 5-8, 2012
Hilton Hawaiian Village
Honolulu, Hawai‘i (USA)

PANEL: Non-State Law and Governance in South Asia and in the Diasporas

Livia Holden, Lahore University of Management Sciences (Session Organizer and Co-chair)
Marc Galanter,  U. of Wisconsin/London School of Econ & PolSci. (Co-Chair)

Abstract
This session focuses on the South Asian networks that act as referents for the settlement of justice in South Asia, and furthermore analyses their translocal legal implications within the South Asian diasporas in terms of governance. The core focus of this workshop is the dynamics of the trust networks that inform the decision-making process concerning the choice of the forum for dispute resolution, especially but not exclusively, in relation to gender and power, and for their relation with governance. How practices of non-state law dispute resolution and their conceptualizations by both the socio-legal scholarship and the general public have been modified or influenced by local and translocal dynamics that have developed in South Asia in the last 40 years? How are those legal practices shaped by the post-colonial instances of the free market? And, what is the role of the geo-political stakeholders in the severance, re-establishment, variation, and perpetuation of trust networks for dispute resolution. Finally: what are the global implications of translocal forum shopping strategies and governance within and beyond the wider inter-Asian scenario of South Asian diasporas?
This workshop welcomes contributions looking at the language of the law by exploring the legal formulations, the arguments and the patterns of litigation within the everyday interactions of trust networks but also encourages multidisciplinary approaches from socio-legal scholars, anthropologists, lawyers, policy makers in a variety of domains, and activists. Authors may use a variety of methods ranging from qualitative to quantitative and including historical, ethnographic, and socio-legal analysis.

 

To join please contact Livia Holden and then login at the following webpage before the 6th December:
https://netforum.avectra.com/eweb/StartPage.aspx?Site=LSA&WebCode=HomePage

Choose “Assigned Paper”

Session Tracking Number: 153603
Session Title: Non-State Law and Governance in South Asia and in the Diasporas
Keywords: NON-STATE LEGAL ACTORS, LANGUAGE AND DISCOURSE