Ch 2 Nationalism Recognition and Family Formation with tables

Chapter II Nationalism, Recognition, and Family-Formation I States, Kin Groups and Families Analogies between patriarchal authority within families and lineages, and the authority of the sovereign over subjects were motifs of early modern Western political theory, deployed to reinforce the authority of both sovereign and patriarch. e.g.: Pufendorf 1991; Bodin 1955; Filmer 1949 They reflected the presence of patriarchal authority and patrimonial states, as Weber characterized them, in various societies. Weber 1968, 1006-1069 Lockean social contract theory severed the link between patriarchal and state authority, locating the latter alone in the consent of the governed. It presaged the efforts of centralizing states to consolidate their power through the appropriation of the authority to regulate family and intimacy from lineages and religious elites, but not the specific ways in which crucial agents framed these projects and the extent to which they redistributed such authority. The modes of regulation of the family were recast over the past two centuries in various societies in ways that provided individuals different choices about how they practiced intimacy and family life, and changed the relationship between patriarchal and state authority in different ways. European states had patrimonial features well after they are taken to have begun the consolidation of their authority, and many of the states in developing societies retained neo-patrimonial characteristics until now. Some of these states limited the authority and autonomy of prior social institutions, and thereby consolidated their authority and became more deeply embedded in society (e.g., France, Turkey), others accepted the continued authority of these institutions in various social arenas at a cost to their own power (e.g., Lebanon, Morocco), and many others consolidated their authority partly by building alliances with such institutions with which they shared various regulatory functions (e.g., Egypt, India, Indonesia). 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. Nancy Cott highlighted the connections between Lockean contractualism and the formation of modern American family law. Cott 2000 She showed that analogies between membership in the American republic and partnership in a marriage, based on consent and perhaps official validation in both cases, reinforced the state’s promotion of monogamous marriages as well as connections between the potential to head a household and political rights. The rhetorical link between political rights and the possibility of heading a household, she demonstrated, urged the extension of the franchise to black men as well as the recognition and encouragement of marriage among African Americans after emancipation, and this in turn provided a normative and rhetorical basis for women to demand the franchise as well as greater authority in marital relations. Cott’s account alerts one to a variety of dimensions along which proposals to make family register, influencing mobilization and policy. However, the imagination of the United States as a republic of equals did not determine the specific changes introduced in family law from the late nineteenth century on, such as the more systematic enforcement of heterosexual monogamy and the requirement of marriage registration, for similar changes were introduced around the same time in some other predominantly Christian countries such as Britain and France, and somewhat later in certain predominantly Muslim countries such as Turkey and Tunisia, although the nation was imagined rather differently in these societies. The nation was imagined in association with images of the Crown, the Anglican Church, and the “freeborn Englishman” in Britain, as republics born in opposition to the alliance of Crown and religious institutions in France and Turkey, and in connection with Arab and Muslim identity, and with Islamic normative and legal traditions in Tunisia. 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. States did gain greater authority over the regulation of the family since the nineteenth century, as scholars such as Mary Ann Glendon and Lawrence Friedman show regarding the United States and Western Europe. Glendon 1989; Friedman 2004; Friedman 1994 However, they did not wield this authority in ways that always enabled the realization of individual liberty and social equality, as Friedman claims. Some of the changes they introduced in family law enabled these ends. This was the case regarding the decrease in the authority of family patriarchs over spousal choice, the increase in the room to effect marital separation and divorce, the enhancement of the inheritance rights of women and younger siblings, and of women’s custody and adoption rights, and the more extensive specification of the economic consequences of spousal separation and divorce, such as in the form of alimony obligations. But the growth in the scope and intensity of state regulation until the mid-twentieth century restricted the types of conjugal relationships citizens could enter, typically to monogamous heterosexual unions formally registered as marriages, and punished alternative forms of family and intimacy. Michel Foucault and certain scholars who adopted his analytical approaches showed that the changes in legal systems and socialization patterns that occurred in the West from the seventeenth century to the early twentieth century and in various colonial and postcolonial societies since the nineteenth century, shaped conjugality along these lines. Foucault showed that modern European discourses about the body, health, pleasure and sexuality emerged from Christian practices like confession and penance, and shaped predominant norms as well as some of the alternatives that emerged to these norms. Some of his followers explored the formation of new forms of morality, classification, regulation and punishment in Asia, the Middle East and Africa through the engagement of modern Western discourses with various indigenous religious and cultural traditions and forms of reasoning. See: Foucault 1978; Foucault 1980; Foucault 2007; Ong and Peletz 1995; Mitchell 1991; Rabinow 1995; Asad 2003; Peletz 2009. In the latter societies, which experienced colonial rule or Western hegemony, the gaps between legal frameworks and public moral sensibilities were especially large. The engagement of Western and indigenous discourses with one another both served to orient citizens to colonial institutions or institutions influenced by Western precedents, and to construct alternatives more suitable to these societies. These culturally rooted social visions accorded value to different conjugal and kinship practices; and varied in the importance they accorded the nuclear family rather than lineages, and the extent to which they promoted monogamy and patrilineal kinship instead of preexisting alternative practices. To the extent that states promoted monogamy and gave patrilineal bonds priority, they restricted the inheritance and maintenance rights of women and children who were involved in polygamous relationships or followed matrilineal customs, motivated groups to modify these customs, and marginalized these practices. The transfer of authority over family life from lineages to states was far from complete in many postcolonial and post-imperial societies, as we saw in the Introduction. States assumed such authority, empowered the nuclear family and increased women’s rights through major changes in family law in Turkey and Tunisia, as well as in Morocco over the past decade. They barely disturbed lineage authority or changed personal law in Lebanon, Syria, Algeria and, until recently, Morocco; and increased the autonomy of the nuclear family and women in certain respects and maintained the authority of patrilineages and men in other respects in Indonesia, Malaysia, Bangladesh, India, Sri Lanka, Iraq, Jordan, Egypt, Libya and Senegal. Moreover, further culturally grounded modernist reforms were introduced since the 1970s in Indonesia, west peninsular and non-peninsular Malaysia, Bangladesh, India, Egypt, and Morocco; in contrast with the diminution of women’s rights in certain respects and the increase in the influence of religious elites through the same period in Iran, Pakistan, Sudan, Nigeria, east peninsular Malaysia, Afghanistan and Aceh (in Indonesia). (See Tables 1.1 and 1.2). Mounira Charrad explored the reasons for the complete transfer of authority over the regulation of family disputes and the promotion of the monogamous nuclear family in Tunisia, in contrast with the continued recognition of lineage authority in various respects in Algeria and Morocco, which shared with Tunisia the predominant influence of the Maliki madhhab (school of Islamic law) and the experience of French colonization. Charrad 2001 She traced the way family law was formed to the relations between states and lineages, the latter being the most important form of social organization in much of the Middle East and in various other regions too. Charrad claimed that Islamic law in its pre-colonial and colonial forms upheld the authority of the patrilineage. She argued that the Moroccan Crown chose not to reform colonial Islamic law as it was closely allied with lineages; the Algerian regime, that included groups with different relations with lineages and varying views about the main desirable family unit, was indecisive regarding family law until it chose to maintain much of colonial law in an unsuccessful effort to stem the growth of Islamist opposition a generation later; and the Tunisian regime, from which urban reformists ousted rural conservatives soon after independence, consolidated the state’s prior autonomy by assuming the authority to resolve family disputes, authorizing the nuclear family, and increasing certain rights of women. Charrad identified some reasons why states assumed the authority to regulate the family to varying degrees, and used this authority in different ways. But, her analysis did not clarify why the state used such authority to secularize family law in early republican Turkey, and increased women’s rights to inheritance and autonomy from their husbands more than the reform of Islamic law did in Tunisia, although state-lineage relations were similar in the two countries. Moreover, it did not shed light on the ways in which nation and family were made in countries such as India and Indonesia, in which religious practices were more diverse than in North Africa, religious and language boundaries cut across one another, patterns of social organization and kinship varied across region and ethnic group, distinct religious law systems as well as norms and customary laws specific to region and ethnic group influenced family regulation, and important nationalist understandings engaged in different ways with various religious and cultural traditions. This is crucially because Charrad, like Cott, did not attend to cultural constructions of nations and understandings of the forms of modernity and types of traditions appropriate to build or maintain in particular societies. While Cott focused on visions of sovereignty, Charrad seemed to consider visions of nation and modernity concomitants of institutionalized state-society relations. Explanations with greater comparative scope need to attend to the links between modes of imagination of the nation and approaches to regulate family life. As states became more centralized and presented themselves increasingly as representatives of nations from the eighteenth century, the relationship of states with religious groups and sects, ethnic groups, lineages, and families was often conceived with reference to the proclaimed character and destiny of nations. Gendered familial norms were important aspects of nationalist narratives, which varied in how far they urged the retention rather than the reconstruction of predominant social practices, the practices they sought to retain, and the ways in which they aimed to change others. Discourses about nations, their constituent cultures, and the forms of modernity and variously reconstructed traditions appropriate for particular nations and cultural groups influenced projects to make citizens, recognize religious and other cultural groups, and shape the family. The book explores, in a comparative perspective, the formation of official nationalism, multiculturalism, secularism, and personal law in India, in mutual interaction. II Nations and Modernities Postcolonial theorists explored the connections between the imagination of nations and approaches to family life. They highlighted how the hegemony of colonial discourse pressed anti-colonial nationalists to make claims to both modernity and cultural authenticity, as colonial discourse typically took rigid cultural traditions to drive much of local social dynamics, presented colonized societies as backward, valued certain forms of cultural distinctiveness, and upheld the preeminent value of modernity. Partha Chatterjee understood many features of anti-colonial and postcolonial cultural politics in terms of these goals Chatterjee 1993. He believed that, to assert their sovereignty over the cultural realm, anti-colonial nationalists felt compelled to reject the paternalistic social reform initiatives of colonial states. Moreover, he argued that they resisted the “rule of colonial difference”, that refers to organized distinctions between colonizers, settlers, and the colonized, and those between different colonized groups, which were central to colonial state-society relations. Anti-colonial nationalists, he claimed, initiated reforms meant to produce authentically national (rather than Western) educational institutions, literary forms, and families while resisting the agency of colonial states in social change and, once they controlled postcolonial states, gave the state’s backing to such reforms. While building nations that were at once modern and culturally authentic, postcolonial states were said to refuse recognition to popular discourses of communities other than the nation they claimed to represent because they felt driven by the universalizing narrative of capital and prioritized the nation they took themselves to embody. “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 Chatterjee and Mahmood Mamdani claimed that, in the process, postcolonial regimes rarely made a definitive break from colonial despotism and Western forms of polity and economy. Chatterjee 1993; Mamdani 1996 Chatterjee juxtaposed his skepticism about the feasibility of multiculturalism and the transcendence of colonial hegemony in postcolonial societies uneasily to suggestions that opinion among the concerned groups, ascertained through systematic community consultation, should guide postcolonial cultural policy. Chatterjee 1993; Chatterjee 1994 The above claims were not based on a systematic examination of colonial law, the social reform agendas of anti-colonial and postcolonial nationalists, and postcolonial multicultural policies. Careful empirical accounts of colonial law demonstrate that colonized groups, including some of subordinate status, found some space to negotiate jurisdictional boundaries, group boundaries and rights under colonial law. Colonial administrators were sometimes willing to cede them such space either for administrative convenience or to gain support and limit discontent. Colonized groups used mixed strategies of pressing their interests through state courts, resorting to community courts which some states recognized, and contesting some features of colonial law. Some of them came to value certain features of colonial legality, and linked aspects of colonial personal and customary law with their identities, even if these legal systems were products of cultural exchanges between the colonizers and the colonized. This meant that the retention of features of colonial personal law and the adoption of imperial precedents did not necessarily undermine postcolonial assertions of rights and authenticity. See: Benton 2001; Merry 1991; Merry 1999; Chanock 1991. While certain conservative anti-colonial nationalists resisted the social reform efforts of colonial states, many other nationalists gave such initiatives their carefully circumscribed support. For instance, in India, only the more conservative nationalists, such as Bal Gangadhar Tilak and Madan Mohan Malaviya, opposed the efforts of colonial officials and liberal Indian professionals to establish an age of consent that girls would need to reach before their husbands may have sexual intercourse with them in the 1890s, and to ban child marriage in the 1920s. Many other important Indian nationalists, including modernists such as Gopal Krishna Gokhale, Jawaharlal Nehru, and Mohammad Ali Jinnah, as well as less conservative traditionalists such as Gandhi, supported these reforms, and Nehru and Gandhi also supported many of the Law Commission’s proposals of the 1940s to change Hindu law. The latter Indian nationalist leaders were not at the forefront of these reform efforts, but some of their supporters were, especially those in the major women’s organizations of the last colonial decades, the All India Women’s Conference (AIWC), the National Council of Women in India (NCWI) and the Women’s Indian Association (WIA). These actors did not feel that their participation in certain social reform initiatives of colonial officials compromised their efforts to build a culturally indigenous nation or their opposition to colonial rule because they either found or sought to construct domestic cultural bases on which to reshape the family along these lines. This was dramatized by the AIWC’s choice to support the efforts of the government-appointed Hindu Law Committee in the 1940s, even while the Congress party was engaged in civil disobedience to end colonial rule. 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. Visions of national and group culture influenced the social reform proposals of anti-colonial nationalists, and postcolonial cultural policies. There was considerable contention over postcolonial social reform amidst the hegemony of nationalist discourse. Conservative nationalists, some of whom were represented in postcolonial regimes, resisted many reform proposals in countries such as Tunisia, Egypt, Pakistan, India, and Indonesia. Such conservatives dominated other postcolonial regimes, such as those of Syria, Lebanon, and Malawi, and these regimes did not attempt major social reforms. The disagreements among nationalists over social reform extended across the colonial and postcolonial periods in many societies, and thus did not derive mainly from attitudes toward colonial state agency. Rather, they were based on alternative understandings of the cultures and desirable courses of the nation and its constituent groups, and on the links of specific nationalist organizations and tendencies with particular social groups. Drawing from Chatterjee the understanding that postcolonial cultural politics and policy were often framed in terms of modernity and authenticity, I address the following questions that he did not: Under what conditions did postcolonial states introduce social reforms? What determined the approaches states took to recognize difference and promote culturally inflected forms of modernity? Various public actors developed understandings of the forms of modernity appropriate for particular colonial and postcolonial societies based on pre-colonial indigenous traditions, colonial knowledge about local society, forms of ongoing cultural mobilization, and earlier social changes in the modern West. They used such understandings to frame social reforms as based on aspects of local culture, and thus counter conservative efforts to discredit reform for causing cultural deracination. This study identifies certain understandings of indigenous forms of modernity influential in India and other former colonies, and sketches their influence over personal law. Understandings of the forms of modernity appropriate for a nation, region or cultural group emerged in various colonial and postcolonial societies, “internal colonies” such as Scotland, Catalonia and Quebec, and other societies considered less developed when their links to other world regions increased (e.g., Italy, Ottoman Turkey, Russia, Japan, China, the southeastern United States, and Brazil in the later half of the nineteenth century). These models encompassed aspects of the political economy (particularly the forms of state engagement in the economy, types of property rights, and patterns of property and income distribution), state-formation (such as the nature of the bureaucracy and the military, the extent of state centralization, the forms of political representation, the character of state-society links, and the patterns of state engagement with religion), and public culture (such as the public roles of religion, and features of the languages of mass communication, public ritual, and everyday life). Their authors thus marked the distinction of their societies especially from more developed societies, made claims to sovereignty, and built culturally rooted social projects not only within the “spiritual realm”, as Chatterjee characterized it. Intellectuals, cultural and political mobilizers, and policy-makers articulated such visions because they felt that viable strategies of economic development, state-building, and cultural formation needed to take account of crucial features of the local society, and wished to frame their projects as culturally authentic. These understandings influenced the patterns of formation of polities and political economies, forms of secularization and religious practice, and types of nationalism, politicized ethnicity and recently constructed traditions. For an overarching view of multiple modernities, see: Eisenstadt 1987; Eisenstadt 2003. Also see: Chapter I, endnotes 5-9. These models varied in the social spheres to which they paid greatest attention. Some emphasized the need for the state to intervene in the economy more and in a different manner in later developing societies, to enable economic growth, stabilization, redistribution, and poverty alleviation. They prescribed varied forms of state intervention such as the establishment of tariff barriers for infant industries, the easier provision of investor credit, the development of infrastructure, the direction of investment into desired sectors, the maintenance of peasant and artisanal production, the promotion of small industrial firms, state ownership of the commanding heights of the economy, and state ownership of much of agriculture and industry. Alexander Gerschenkron emphasized the distinctive features of these visions and their consequences for policy and economic change in Europe, and his lead was followed by scholars of state-led industrialization in East Asia such as Chalmers Johnson, Peter Evans, and Alice Amsden. Christopher Hill highlighted how important actors linked such economic strategies to narratives of national history. Gerschenkron 1962; Johnson 1982; Evans 1995; Amsden 2001; Hill 2008 Political leaders like Lee Kuan Yew popularized aspects of these accounts, and connected them to features of religious culture. Various intellectuals and political elites in colonial societies drew on the ideas developed earlier in Central and Eastern Europe and East Asia, added to them the claims that colonial rule had hindered industrialization and incorporated colonized societies into the world economy on a subordinate basis, and argued on these bases for building postcolonial developmental states. Moreover, they felt that postcolonial states needed to give special attention to promoting national cohesion and cultural decolonization, managing ethnic, religious, and racial conflict, and maintaining or changing the social structure. Such arguments were deployed in favor of the retention of collective land ownership tied to lineage power and customary law in parts of sub-Saharan Africa, the Middle East, and South Asia, the redistribution of land from European settlers to indigenous groups in various settler societies, as well as the maintenance of existing forms of the division of labor (especially in agriculture) or a return to imagined pre-colonial political economies in various colonies. Many important actors believed that the predominantly non-Christian religious cultures of much of the Middle East and Asia were important reasons to craft distinctive social projects, emphasizing either specific religions (particularly Islam, Hinduism, Confucianism and Buddhism) or the common features that they saw in the different popular religious cultures of their societies. Political leaders and nationalist intellectuals made Islam central to their understandings of national distinctiveness in much of the Arab world and Central Asia, but more of them valued the common features of the religious cultures of Indonesia, and to some extent India. Both kinds of constructions of national religious culture influenced proposals to revitalize the nation, accommodate diversity, and shape personal law. Arguments to build distinctive forms of modernity were voiced early and in especially influential ways in India. Claims that colonial rule was associated with the drain of economic resources from the colonies, the destruction of pre-colonial life-worlds, and the promotion of religious and ethnic conflict emerged particularly early in India, in the nineteenth century, and were crucial aspects of the anti-colonial nationalist visions of the early twentieth century. Gandhi offered a particularly totalizing and popular critique of these features of the colonial encounter. While his preferences to build an agro-artisanal economy and devolve most governance functions to the local level were far removed from the determination of modernist nationalists like Nehru to promote industrialization, Gandhian traditionalists and the majority of modernists agreed that India needed to be autonomous of the global economy and imperial powers. This enabled the modernists to appropriate aspects of Gandhi’s critique of colonialism in favor of their plans to build a developmental state and consolidate parliamentary democracy, as well as to pursue certain goals that Gandhi shared – building national solidarity while recognizing difference, and constructing a secular state that accommodates many features of public religion. Along with various traditionalist allies, the modernists built broad social coalitions that supported versions of this agenda and the dominant Congress party. The agenda of the modernists included the culturally grounded reform of colonial personal law to promote individual autonomy and reduce gender inequality in certain respects, while maintaining the continuity of the nuclear family, various gendered social roles, and perhaps aspects of lineage authority. III State-Society Relations, Discourses of Community, and Personal Law Individuals, social groups, associations, social movements and political parties imagine projects to make society and family, mobilize in their favor, and sometimes reframe them in light of contention with alternative projects on offer in society. They thus influence the projects that states adopt, as well as the social responses to these projects, which reorient state projects to varying degrees. Most analyses take the interaction of interests, institutional orientations, ideas and meanings to influence such projects. They vary in how they understand (a) the formation of interests and institutions, (b) the interactions between the formation of interests and institutions, the emergence and circulation of ideas, and the generation of meaning, and (c) how states (or different groups of elites that have significant influence over the state or particular state institutions) formulate projects and propose policies meant to realize these projects. An older scholarship understood the array of organized interests and institutions in society to shape the goals and actions of states. e.g.: Easton 1953; Almond and Coleman 1960 It was unable to account for the varied policies that states adopted in similar social contexts, and for the special influence that states exert when they gain near-monopoly over the legitimate use of force. Scholars that emphasized state autonomy highlighted the definite preferences that public officials have in their specialized policy arenas (in contrast with the indifference of many social actors about various policies), and the resources and influence they often have to shape societal opinion to favor or at least not obstruct their preferences, and to override powerful interests that remain opposed to their preferred course. While some of these scholars focused on the autonomous formation of the preferences of crucial policy elites, especially Nordlinger 1981; Krasner 1978 others emphasized the ways in which the history of state formation and the resulting structure of the state channeled collective action, and shaped policy-makers’ incentives and goals. e.g., Skocpol 1985; Skocpol 1995; Bates 1981; Evans 1995 The former versions gave inadequate attention to the factors shaping the preferences of state officials, and both they and the latter disregarded the frequency with which powerful groups influenced these preferences or diverted policy-makers from their priorities. Mitchell 1991 and Migdal 2001 highlight these problems. Other accounts of state centralization and state-led social change overemphasized how far state actions are driven by objectives to maximize control over resources and practices and to maintain stable regimes. e.g.: Tilly 1975; Goldstone 1991; Marx 1998 A variety of policies may be considered compatible with such goals in many contexts, and the groups, ideas and values with which state elites feel greatest affinity influence their perception of the policies most suitable to these ends, and the polices they adopt. Moreover, these explanations do not adequately consider the conditions under which states may be unable to overcome certain forms of resistance or prefer to accommodate them by devolving aspects of social regulation to authoritative social institutions. Friedman adopted such an analysis of the formation of family law, which shared these problems. He claimed that the state’s greater control over family regulation in Western societies enabled greater social complexity, individual liberty and social equality, and inadequately recognized the frequent tensions between these ends. Friedman 1994; Friedman 2004 This approach did not capture why states retain prior personal law systems or change them in particular ways. Other scholars took state-society relations to determine the social projects that states undertake and the capacity of states to pursue these projects, without assigning causal primacy to the actions of states or social groups. Their “state-in-society” approach stressed the porousness of state-society boundaries in many contexts, the frequency with which fragments of states ally themselves with different social groups locked in contention with one another, and the ways in which state-society boundaries get constituted through such interactions and alliances. Its emphasis on the influence of conflicts between particular state institutions, groups of state elites, and alliances of different state-society fragments over policy-formation was valuable. 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. As personal laws lend the state’s recognition to particular social norms, the formation of these legal systems involves ongoing passage across the boundaries between state and society, and this study draws on various valuable insights of the state-in-society school to understand these processes. It nevertheless differs from some assumptions that much of the work of this school shares: social structure determines interests and the groups that have the capacity to mobilize significant alliances; old elites defend enduring practices that reproduce their dominance and ideas that uphold their authority, often in the name of tradition; emergent elites and groups generate and embrace new ideas that promote alternative practices and forms of solidarity; and the structure of states and the relationships of states or fragments of states with particular social groups determine the projects that states pursue. 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. This book’s consideration of the different directions taken by nationalism, multiculturalism and personal law in postcolonial societies indicates that interests are constructed in different ways in societies with similar patterns of resource organization and distribution; that a variety of practices can often be credibly presented as having the force of tradition in a given society or social group; and that the discourses of community salient in particular societies or among specific social groups influence how individuals construct their interests, the projects of social change launched in society, the alliances formed in favor of these projects, the projects which particular state institutions or segments thereof promote, and how states or state-society fragments modify these projects in view of their interactions with social forces. Analyses focused on state-lineage relations, such as Philip Khoury and Joseph Kostiner, Charrad and some of the essays in Julia Adams and Mounira Charrad, adopt versions of the state-in-society approach and their explanations of state initiatives to reform society and family have the shortcomings indicated above. Khoury and Kostiner 1990; Charrad 2001; and some of the essays in Adams and Charrad 2011 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 do so explicitly. See for instance: Jackman 1993; Breuilly 1994; Marx 1998; Marx 2003. 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 in effect because they not only constrained action, but also formed individual dispositions, popular mobilization and responses to policies. 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. 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. See: Mitchell 1991; Rabinow 1995; Peletz 2002; Peletz 2009; Asad 2003. 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. Scott 1998 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 pre-colonial norms to both orient themselves to colonial institutions and to devise alternatives to them. 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. 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 pre-colonial norms and practices, and sometimes as ways of delegating the governance of the family and perhaps land control to pre-colonial institutions and elites. Partly for this reason, colonized groups drew not only on colonial knowledge, but also on pre-colonial traditions as they interpreted them in light of current predicaments, practices that emerged in interaction with colonial governance while remaining somewhat autonomous of it, and postcolonial ambitions (often framed in nationalist discourses) to frame litigation strategies, and devise projects to maintain or change personal law and social practices. Benton 2001; Merry 1999; and Chanock 1985 detail such trends in various societies. 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. Friedman 2004; Friedman 1994. Glendon 1987; Glendon 1989; and Goode 1993 agree with many of Friedman’s claims, but offer more nuanced accounts. Various other teleological accounts of legal development shared such an understanding. e.g., Schwartz and Skolnick 1970; Stein 1980; Elliott 1985; Lowe and Douglas 2009 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 believed 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. 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. However, these reforms provided women greater inheritance rights and divorce rights. 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. 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. 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. 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 many other industrialized regions. Bowen 2003; Cammack and Feener 2007 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. But, policy-makers seriously considered the equalization of these shares in Indonesia. 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 matriliny in parts of Indonesia, Malaysia and India, and alternative sexualities and transgendered behavior in Malaysia and the Philippines. Peletz 2002; Peletz 2009; Bowen 2003; Brewer 1999; Feliciano 1994 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 households, 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. Charrad 2001 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 patrilineages in certain ways. For instance, the fixed inheritance shares that they prescribe for individuals, including women, are not conducive to patrilineal property control. John Bowen helped me understand this. This led to conflicts between ulama and landed elites at different points over inheritance practices in various societies with strong lineages. See: Coulson 1971; Tucker 2008; Zaman 2002. Urban groups vary in the extent of their dissociation from agricultural property, and nuclearized households 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. Sreenivas 2008 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. 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. 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. Birla 2009 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, that 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 in certain respects, and sometimes that of individuals. They vary however 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 control of extended kin over ancestral property (especially land) and various forms of clan authority. Those of them 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 pre-colonial normative and juristic systems supported them as well. Legal elites, that 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 pre-colonial traditions. Charrad paid inadequate attention to the diverse ways in which the kinship practices upheld in classical religious texts were enacted in particular social contexts, the various sources from which colonial personal laws were drawn, the different relationships that systems of religious personal law had with local customs, and the particular ways in which different groups felt that their social identities were tied to classical religious law on the one hand and local customs on the other hand. Due to her focus on a region where the Maliki madhhab developed in interaction with patrilineal forms of kinship, she did not consider the rather different forms of “practical kinship” enacted as normatively Islamic and enforced as Islamic law in different societies. See: Bourdieu 1977. John Bowen, Michael Feener, Mark Cammack and Michael Peletz showed that kin relations developed among Muslims in Indonesia and Malaysia through the interaction of the matrilineal and bilateral practices that existed prior to the advent of Islam in these societies with the largely patrilineal norms of the Shafi`i madhhab that is said to govern these groups. Bowen 2003; Peletz 1996; Feener 2007; Feener and Cammack 2007; Peletz 2002 Qadis (religious judges) often mandated inheritance according to adat (ethnic or regional customs, many of which predate the influence of Islam in the region and differ from the prescriptions of Islamic jurisprudence). Even the authoritative texts of the main school of Shia law (the Ithna Ashari) prescribed bilateral rather than patrilineal inheritance outside the nuclear family, influenced by the predominantly bilateral kinship practices of Iran and Iraq, where the majority of the world’s Shias live. See: Powers 1986; Coulson 1971; Spooner 1966. The variety of inheritance practices followed by Muslims, some of which were encoded in texts of religious law, are among the many indicators that world religions assumed different forms in interaction with specific social contexts. Even if they were framed as religious laws, colonial personal laws incorporated many customs specific to region or ethnic group, as well as common law or civil law conventions. These customs had uncertain relations with the texts on which colonial policy-makers mainly based their understanding of religious law. Some of them governed members of many religious groups. Colonial courts recognized many such customs in Indonesia, where various colonial intellectuals and officials considered such customs rather than Islamic law the main basis of family practices especially regarding inheritance, although Islamic law was said to govern the country’s Muslim majority. They also recognized the inheritance customs followed by the majority of Indian Muslims, which did not give women the shares in family property that classical Islamic law prescribed. Thus, colonial personal law was in most cases some steps removed from the classics of religious law. It often influenced what colonized groups considered of cultural value, and to the extent that it did so, postcolonial rulers faced popular expectations that they would recognize many family practices that the texts of classical religious law did not support. This was less the case among Indian Hindus. Colonial officials constructed official Hindu law based importantly on particular Hindu religious texts (especially the Mitakshara and the Dayabhaga) that upheld many of the customs of the dominant castes and lineages of particular regions. They systematized different schools of Hindu law based on these earlier texts, and applied them to the residents of specific regions. This aligned the Hindu law in force with certain prevalent customs. See: Rocher 1972; Cohn 1996, 57-75. The perceived relationship between religious law and custom influenced how groups connected their identities with religious law on the one hand and regional custom on the other hand. Indian Hindus saw ethnic and regional customs more often as the prescriptions of religious law, while Indian Muslims (particularly religious elites) felt that the customs of their religious group departed from their religious law in crucial respects. As a result, Muslim religious elites demanded that the rules of classical Islamic law rather than the customs of landed elites be applied to Muslim inheritance, and faced the resistance of Muslim landed elites, who ensured the continued application of regional custom to land inheritance. Among Hindus, the majority of religious elites and landed elites made common cause in opposing personal law reform on the grounds of religious tradition as well as indigenous custom from the late nineteenth century until the 1950s. Besides, groups vary in the stake they feel in religious law. Indian Muslim religious elites did so more than their Hindu counterparts did because expertise in religious law was more important to their authority. As a result, they mobilized Muslim personal law as an important domain of religious identity from the late nineteenth century, and remained closely engaged with Muslim law adjudication and legislation thereafter. By way of contrast, Hindu religious elites largely withdrew from debates about personal law after parliament introduced moderate reforms in the 1950s. Resistance to Hindu law reform came primarily from the social elites of patrilineal groups thereafter. The norms of specific ethnic groups and regions supplemented religious jurisprudence more in societies in which predominant nationalist discourses highlighted cultural similarities and cultural exchanges across religious boundaries. This was especially the case in Indonesia. Sensitivity to regional culture also depended on the level of government that was responsible for family law, being greater in federal polities in which the state governments assumed much of this responsibility such as Malaysia, the United States and Canada, than in unitary polities such as Britain, or in federal polities such as India’s in which the federal government assumed primary responsibility. Bina Agarwal explored the implications of kinship practices for orientations to family law in South Asia. She argued that regional differences in customs regarding inheritance, marital alliances and post-marital residence influenced women’s rights to inherit land, as well as their effective access to land. Agarwal demonstrated that the customs of patriliny, village and kin exogamy, and patrilocality, predominant in northern and western India, Pakistan and Nepal limited women’s ability to access resources, especially land, to which they were legally entitled. The greater prevalence of bilateral and matrilineal inheritance and village and kin endogamy, and more varied patterns of post-marital residence in southern and eastern India, Bangladesh and Sri Lanka were more favorable to women’s access to land. Moreover, Agarwal showed that these customs influenced state-specific land legislation, which overrode national-level Hindu laws regarding the inheritance of agricultural land until recently, and seriously limited women’s land rights in northern and western India. Agarwal 1995; Agarwal 2008 These regionally specific practices influenced the Hindu law debates of the 1950s and the 2000s, in which legislators from the north and the west especially opposed changes that would have enabled women to access ancestral property. They were also crucial to the introduction of such changes initially in the southern states. Furthermore, they influenced people’s positions on marriage and divorce law, which Agarwal did not discuss. Representatives from northern and western India particularly resisted allowing kin endogamy, and increases in the rights to marital separation and divorce. This was especially the case among those from the upper and upper-middle castes, which followed norms of kin exogamy and marriage indissolubility most. V Secularism, the Recognition of Religion, and Multiculturalism Certain states that claim to be secular recognize personal laws that draw from religious norms and govern specific religious groups or sects. Tensions arise between their secularist claims and their application of religious laws. Secular states aim to restrict or change the social roles of religion to promote various ends. Liberal democratic secular states and states that present themselves as such, claim that their interventions in religion are meant to ensure individual liberties, treat different religious groups similarly, limit religious discrimination in society, contain religious and sectarian conflict, and promote social equality to levels necessary to produce an autonomous citizenry. An important body of literature indicates that secularist institutions and policies depend on, and perhaps ought to reflect, the nature of religious practices and religious institutions, the prior engagement of states with such practices and institutions, and the visions of religious toleration, equality and freedom salient in particular societies. 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. These studies trace the higher resistance to the recognition of religious norms and the greater restriction of religious symbols in public life in France than in the United States to such factors as the role of anti-clericalism in restricting the monopolistic power of the Catholic Church in France and the greater prevalence of religious practice in recent decades in the United States. Similarly, they attribute the greater accommodation of religious norms and greater attention to the state’s equidistance from religions and religious groups in India than in France and the United States to the higher public relevance of religion and greater intensity of inter-religious conflict when a sovereign state was established there. See: Monsma and Soper 2009; Jacobsohn 1996; Asad 2003; Bhargava 1999; Bhargava 2010; Casanova 1994; Casanova 2006; Taylor 2007. These considerations are taken to have motivated the recognition of religion as a basis for social and cultural rights (e.g., to distinct educational institutions and personal laws), but not for political rights (e.g., separate electorates) in India. In highlighting the extensive accommodation of public religion in India and the correspondence of these arrangements with certain popular expectations, this literature refutes the claims of T.N. Madan and Ashis Nandy that India’s secular institutions did not engage with crucial public cultures infused by religious norms and therefore drew support only among a narrow elite. We will see however that such criticisms were applicable to Turkish secularism. See: Madan 2003; Nandy 1988. Madan and Nandy inappropriately focused their criticisms on Indian institutions. Gary Jacobsohn offered such a contextually specific understanding of three models of secularism - American assimilative secularism that seeks to preserve religious liberty in the private sphere, while urging political assimilation in the American republic; Israel’s visionary secularism that involves the coexistence of the vision of Israel as a state of the Jewish people with commitments to preserve religious liberties and cultural autonomy; and India’s ameliorative secularism, committed to transform enduring social inequalities related to religious belief and practice, while ensuring cultural autonomy. He considered these models responses to religion’s roles in social life and national identity, and understood features of family law as expressions of these models. While the American state’s determination to subsume the claims of religious groups to the supremacy of civil law led to the penalization of alternative family practices related to minority religious norms (specifically, Mormon polygyny), the inclination of the Israeli and the Indian states to accommodate the religious minorities led them to accept polygyny among Muslims while banning the practice among their religious majorities. Jacobsohn claimed that the Indian state was more likely than the Israeli state to reform Muslim law and introduce uniform secular family laws if opinion among the concerned groups supported these steps because of its ameliorative ambitions. Jacobsohn 1996; Jacobsohn 2003 These authors contributed significantly to understanding varieties of secularism, but slipped too readily from an empathic understanding of official secularisms to the conclusion that religion was accommodated appropriately in various societies. They paid inadequate attention, for instance, to the ways in which the association of the British state with the Anglican Church, the incorporation of Judeo-Christian visions in the constitution and aspects of the legal system in the United States, and the reluctance of states in Norway, Sweden, Denmark, and the Netherlands to extend non-Christian religions the recognition they had given Christian sects that had lived for long in their societies meant that these states engaged very unequally with specific religious groups and sects, a problem which became more glaring as these societies became more diverse in religious practice. Nor did they consider whether the religious laws of Israel and India best reflect religious practices, reform initiatives and the requirements of tolerance. The ban on polygyny among the majority and not among Muslims was related to public opinion in Israel but not in India, where bigamy was practiced and accepted about as much among Hindus as among Muslims when the practice was banned among Hindus soon after independence. Even in Israel, polygyny was practiced among some Mizrahi groups (Jews from the Arab world, Caucusus, Central Asia and Ethiopia) when they migrated to Israel. As the Israeli political and judicial elite prioritized changing practices among the Jews, but not among the Muslims, they applied the civil law banning polygyny (and other civil marriage laws) much of the time in the rabbinical courts, but accepted the continued validation of polygynous marriages in the Muslim courts. 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 Major understandings of Indian secularism identify the main reasons for the maintenance of distinct personal laws, but do not effectively account for the postponement of change in the minority laws or the specific changes made in Hindu law. Jacobsohn and Rajeev Bhargava argued that the focus on Hindu law reform reflected the greater support for personal law reform among Hindus and a commitment to minority accommodation. In a similar vein, Paul Brass, James Chiriyankandath, Subrata Mitra and Alexander Fischer attributed the choice not to change the minority laws after independence to the agreement that Congress party leaders had reached with certain Muslim elites to maintain distinct Muslim laws. Jacobsohn 2003; Bhargava 2010; Brass 1991, 75-108; Chiriyankandath 2000; Mitra and Fischer 2002 These authors ignored the compatibility of minority accommodation with changes in minority laws based on the relevant group’s norms, practices, and initiatives, and misunderstood the relative strength of reformist mobilization. Significant initiatives to change social life and personal law had emerged among Muslims from the 1920s. They led to some reforms in Muslim law in the late 1930s, and made many Muslim elites open to further changes if they were based on Islamic norms and significant Muslim mobilization. The most important change made in Muslim law was the passage of the Shariat Act in 1937, initiated by various Muslim political and religious elites, which required the application of Islamic law rather than customs specific to region, caste or lineage to Muslim family life. This increased the rights of most Muslim women in colonial India to whom the courts had applied patrilineal customs until then, particularly to inheritance. Muslim women were thereafter entitled to half the share of similarly positioned male kin in family property. The resistance of Muslim landed elites to the shares that Islamic law gave women in family property led to a compromise that exempted agricultural land from the purview of Islamic law, as we saw. As a result, patrilineal customs that gave women no shares or very limited shares in family property continued to govern most Indian Muslims with regard to agricultural land. Gilmartin 1988; Nelson 2011 The majority of the Muslim landed elites that had pressed for this compromise wound up in Pakistan after 1947. The resulting decline in the power of Muslim landed elites in India significantly reduced opposition to extending the Shariat Act’s purview to agricultural land, and the majority of ulama would have supported this change because they considered the inheritance shares prescribed in the Qur’an immutable features of Islamic law. Moreover, the Indian constitution, adopted in 1950, moved succession to agricultural land from the sole jurisdiction of provincial governments to the concurrent jurisdiction of the national and the state governments, removing procedural obstacles to the passage of national legislation to this effect. 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. Despite this, the Shariat Act was applied to the inheritance of agricultural land soon after independence in West Pakistan (today’s Pakistan), but not in India, where only two state governments made this move. 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. Certain Muslim legal and political elites proposed other Muslim law reforms by the 1940s, such as requiring families with means to provide their daughters dower, giving women control over their dower and the right their husbands already had to repudiate their spouses, and restricting unilateral male repudiation. Asaf Ali Fyzee and Sharifa Hamid Ali were the chief proponents. Policy-makers did not consider such changes or an increase in Christian divorce rights, which various Christian organizations demanded from the 1950s. Besides, Hindu law reform initiatives faced considerable resistance. Thus, support for personal law reform was no stronger among Hindus than it was among Muslims and Christians, and influential Muslims and Christians had highlighted culturally specific grounds to change their personal laws. This is discussed in Chapters III and V. Nevertheless, policy-makers changed Hindu law alone soon after independence because most political elites primarily engaged initiatives among Hindus, imagined the nation primarily with reference to various Hindu cultural sources, and conceived projects to reshape the nation and reduce deep inequalities mainly with reference to such sources and initiatives. Gyanendra Pandey, Partha Chatterjee and Aamir Mufti noted that the majority of Indian nationalists, both cultural pluralists and those who sought Hindu hegemony, shared such orientations in the late colonial period, but the literature has not explored the consequences for postcolonial recognition. Pandey 1990; Pandey 2005; Chatterjee 1992; Mufti 2007 Many aspects of Indian multiculturalism had a Hindu majoritarian orientation, not only personal law but also preferential policies and state responses to autonomist and secessionist movements. Preferences in education, government employment, and political representation, and special civil rights protections were extended to the Hindu lower castes (scheduled castes) and tribal groups, and later to lower caste individuals practicing other religions of South Asian origin such as Sikhism (in 1956) and Buddhism (in 1990), but not to lower caste Muslims and Christians, although the latter groups faced much the same constraints and indignities as the former. This discouraged lower caste conversion from Hinduism to Christianity and Islam, which was contrary to the state’s claim to promote religious freedom. 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. The formation of Pakistan as a country for India’s Muslims led many policy-makers to consider the religious minorities most likely to favor secession. They therefore more readily accommodated autonomist and secessionist movements that emerged among predominantly Hindu cultural groups (as they did with the Dravidian and the Assamese movements), while repressing such movements more often if they grew among predominantly non-Hindu groups (acting thus at different points toward the Naga, Kashmiri, and Sikh movements). 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. Various scholars did not address the influence of religious identity over preferential policies and policies toward ethnic movements. 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. The manner in which these policies took religious identity into account was contrary to the Indian state’s claim to equidistance from the various religious groups. Bhargava and Charles Taylor nevertheless misleadingly deemed the state’s maintenance of such a “principled distance” from religious groups a major distinctive feature of Indian secularism. The asymmetries in the Indian state’s engagement with religious groups weakened efforts to build inter-religious understanding, reduce durable inequalities, and represent the country’s different religious cultures in the emergent nation. Jacobsohn understood early postcolonial Hindu law reform as meant to realize the constitutional principle, based in liberal public reason, of ameliorating deep inequalities and Bhargava as aimed to make personal law more gender-just. However, the main sources of these changes, notions of social reform based on Hindu normative traditions, and the model of the heterosexual and monogamous nuclear family that Western law provided at the time, were neither based on a liberal imaginary nor urged the systematic reduction of gender inequalities. The former encouraged the maintenance of lineage control over property, and limits on mate choice and divorce rights, and the latter influenced reductions in the rights of women in matrilineal groups or in polygynous relationships. Moreover, a preference to maintain broad support led policy-makers to accommodate conservatives by placing serious limits on women’s access to ancestral property, and strengthening men’s right to the conjugal company of their spouses. VI Central Arguments in Brief The book explains the course of personal law with reference to two sets of factors, that develop in mutual interaction: first, features of state-society relations; and second, the discourses of community that are salient among ruling elites or groups with significant influence over policy. The relevant features of state-society relations are social structure, the nature of state-society engagements under the predecessor regime, the coalitions that the regime or segments of the regime have and aim to build, and the projects of state elites to change state-society relations. The discourses of community that exercise greatest influence are those about the nation, its cultural groups and its traditions. The ways in which two category couplets are deployed in discourses of community matter: nation-community and modernity-authenticity. The particular forms in which the nation-community and the modernity-authenticity dyads are articulated influence the imagination of the following: the crucial group boundaries, the dynamics of the society, the nature of state institutions, and the boundaries and engagements between state and society in the present and in the projected future. Such forms of imagination of community in turn influence the construction of states and state-society relations, and how certain actors experience these phenomena. The two crucial explanatory variables, state-society relations and discourses of community, develop through such interactions with one another, and their interactions shape various policies, particularly those pertaining to the recognition, transmission and transformation of cultures. Diagram 1 and Tables 2.1 and 2.2 capture these relationships. Diagram 1 about here Table 2.1 about here Table 2.2 about here We first consider the links each of these variables has to patterns of nation-formation, recognition and family law. Then, we explore the interaction of these variables and the effects of these interactions on multiculturalism and family law. VII Central Arguments Elaborated A. Regimes and Coalitions The kinds of social coalitions that regimes have and aim to build influence the course of family law. Societies in which traditional elites such as agrarian lineage leaders enjoyed considerable authority, and professional, commercial and industrial elites were weak tended to produce regimes dominated by or heavily dependent on traditional elites. These traditional elites tended to retain prior personal laws that upheld the authority of lineages and kin groups. These conditions obtained in postcolonial Lebanon, Syria, and Morocco, and to some extent in Algeria, and they ensured the retention of most colonial personal laws. Catch-all regimes that aimed to build links with a range of social groups and social visions introduced only limited social reforms, especially if mobilized groups were sharply divided over reform. This was the case in postcolonial Egypt, Jordan, Sri Lanka, India, Malaysia and Indonesia. Vanguardist regimes that valued the social projects they wished to pilot more than building broad coalitions, promoted extensive social reform even if this led to considerable conflict and narrowed their support. They closely associated these projects with the groups amongst which they retained support while they transformed society. These groups could be either modernists, socialists and communists drawn largely from the urban middle classes and working classes, or religious elites and other groups that preferred either the extensive public recognition of religion (as sections of the lower middle classes did in various societies) or the reinforcement of kin group authority (as powerful agrarian groups tended to). The vanguardist projects were modernist in early republican Turkey and early postcolonial Tunisia, and conservative in Pakistan, Iran, Sudan, northern Nigeria, Afghanistan and east peninsular Malaysia at different points since the late 1970s. Among regimes dominated by traditional social elites, the maintenance of community courts was an aspect of the agreement that forged the Grand Alliance, which gave the clan leaders among Lebanon’s various sects political representation. The elites that led these courts retained the existing personal laws. The close alliance of certain factions of Algeria’s ruling Front de Liberation Nationale (FLN) with conservative lineages, and the restriction of the Syrian regime’s support mainly to the minority Alawi sect since the late 1960s, restrained the reformist inclinations of certain regime members. The Moroccan Crown’s reliance more on rural lineages than on the urban groups aligned with the nationalist Istiqlal party also predisposed it not to alter colonial Islamic law until the growth of civil society mobilization changed its calculus over the past two decades. The experience of Egypt is representative of the approaches of catch-all regimes. The Free Officers regime that came to power in 1952, and whose successors retained control over the national government until 2011, upheld a secular understanding of the nation, and claimed to represent a socialist understanding of public religion. This suggested that the regime might either secularize family law or substantially reform Islamic law. Either approach could have drawn on intellectual and political currents that had been vigorous in the country since the late nineteenth century. Secular nationalism was influential in the anti-colonial movement, particularly among the legal elite, Islamic modernists such as Muhammad Abduh and Muhammad Rashid Rida pioneered innovative religious reasoning that influenced policy debates around the Islamic world, and the women’s movement had begun to strike root. These forces urged the government to change Egypt’s personal laws extensively, building on the minor changes introduced through the first half of the twentieth century. See: Ahmed 1992; Ziadeh 1968; Kerr 1966; Tucker 2008, 65-77; Abu-Odeh 2004. While the regime felt some inclination to follow this path to consolidate its modern image, it also considered the assistance of ulama in major religious institutions such as al-Azhar University, important to broaden its support and contain militant Islamist organizations such as the Muslim Brotherhood. Many influential ulama opposed substantial increases in women’s rights and individual autonomy in family life. As a result, policy elites abandoned plans to draft a modernist code of family law that would draw from Islamic legal traditions but apply to all citizens, and restricted themselves to transferring jurisdiction over personal law in 1955 from religious courts to state courts that drew their judges from both Islamic educational institutions and secular universities. They periodically made modest changes in Islamic law thereafter, but were reluctant to make far-reaching changes that major ulama and Islamist organizations did not consider to be grounded in Islamic traditions, especially once Islamist organizations resumed their growth in the 1970s. When there was considerable opposition to a law passed in 1979 through presidential decree after little public consultation that enabled earlier wives to divorce their polygamous husbands, the Supreme Court struck down this law and parliament altered legislation accordingly. Subsequent reform initiatives were more cautious. They increased women’s rights to maintenance and divorce, obliged women to obey their husbands in fewer activities, and decreased the ability of men to secure their wives’ conjugal company, to promote companionate marriage and women’s education and workforce participation. But they left much space for men to act against their wives’ interests, such as by requiring them to give up their jobs, repudiating them unilaterally, or concurrently marrying several women without the consent of their earlier wives. Ziadeh 1968, 117, 138; Abu-Odeh 2004, 1095-1101, 1126-1146; Singerman 2005; Badran 2009, 1-54; Wickham 2002 Similar concerns limited personal law reform in Malaysia, Sri Lanka and Jordan. The much greater vigor of electoral competition made broadening support a more compelling concern for the major parties of Malaysia (the United Malay National Organization) and Sri Lanka (the United National Party and the Sri Lanka Freedom Party). These parties gained support primarily by presenting themselves as effective representatives of their country’s ethnic majority, among whom preferences regarding family law varied. To maintain support among the ethnic majority that overlapped considerably with the religious majority in these countries (Malays being largely Muslim and Sinhalese predominantly Buddhist), they had to contain challenges from Islamic and Buddhist religious institutions and movements. They did so by upholding moderate modernist understandings of religious norms and personal law, thereby allying themselves at times with religious parties and movements and limiting their appeal at other times. 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. Concerns to contain Islamist mobilization and to limit discontent among the substantial Palestinian population similarly limited the Jordanian monarchy’s reforms. Welchman 1988; Wiktorowicz 2001; Abu-Odeh 2000 The scope of personal law reform was modest yet significant in Indonesia, much as in the countries just discussed. However, reform was more extensive than in these countries in some respects, and more ambitious proposals were seriously considered at some points since the late 1980s. Different ideological tendencies and social visions were represented in the nationalist movement and the early postcolonial political elite – religious pluralists and proponents of an Islamic state, cultural indigenists who valued adat and supporters of the types of Islamic jurisprudence formed mainly in Arab contexts, and proponents of social equality as well as those who wished to maintain gender, age and class hierarchies. In order to reconcile these diverse perspectives and contain the secessionist demands that emerged from certain “outer islands” other than Java, particular Christian and animist groups, as well as some Islamic modernist organizations, the early postcolonial political elite agreed on the doctrine of Pancasila (five principles), which included the recognition of a Supreme Deity rather than a specific religion. Moreover, religious pluralists such as Sukarno had greater influence, and deleted from an earlier draft of the constitution a phrase that obliged Muslims to live according to Islamic visions of justice and be governed by Islamic law. Nevertheless, Muslim marriage and divorce cases remained under the jurisdiction of the Islamic courts, which were centralized and professionalized along the lines of the civil courts, and offered greater state resources. Besides, such courts were established in some of the outer islands for the first time after independence, they gained jurisdiction over inheritance in these regions (while they governed only marriage and divorce elsewhere in the country between 1937 and 1983), and only minor changes were made in Islamic law throughout the country until the 1970s. These choices were made to contain the resentment of Islamic organizations about Islam not being given official primacy and the omission of a constitutional commitment to maintain Islamic law, and to preclude the reemergence of an Islamist insurgency such as had engulfed parts of Java in the first postcolonial decade. The authoritarian New Order regime that ruled Indonesia from 1966 to 1998 retained its predecessor’s secularist inclinations and resisted demands to give Islam greater constitutional significance. It initiated various important personal law reforms, such as requiring Islamic court approval for male repudiation, authorizing the Supreme Court to supervise the Islamic courts and consider appeals of their verdicts, extending jurisdiction over the consequences of divorce to the Islamic courts, and offering litigants throughout the country the choice to have these courts consider their inheritance cases. Moreover, an official compilation of legal rulings, that was meant to guide Islamic court decisions, departed in many ways from the rules favored by the majority of ulama of the Shafi`i madhhab that governs most Indonesian Muslims. Even through this period of greater personal law reform, concerns to maintain broad support, limit Islamic resistance, and gain the support of certain Islamic scholars and institutions for their development projects deterred authorities from implementing more ambitious proposals, such as to transfer jurisdiction over marriage to the civil courts, to change Islamic inheritance rules according to the bilateral practices predominant in the country, and to equalize on this basis the inheritance shares of men and women with a similar relationship to the deceased. At the same time, the concerns of secular nationalists deterred policy-makers from giving the Islamic courts sole jurisdiction over inheritance cases. While legislators did not devote much attention to changing the laws of the religious minorities, the civil courts that considered family disputes among these groups generally did so with reference to the relevant adat, accepted bilateral and matrilineal practices as well as other customs favorable to women such as the joint ownership of marital property of which both spouses are entitled to shares when they get divorced or when their spouse dies, and sometimes applied such customs to groups amongst which they were not prevalent based on novel constructions of a “national adat”, which was said to be based on the “living law of society” and was used to promote more egalitarian customs. After the transition to democracy in 1998, Islamist movements increased the scope of Islamic law and ensured that Islamic law was interpreted more conservatively in some of their regions of strength, particularly in Aceh where shari’a was made an important basis of the entire legal system. 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. Despite the recent conservative developments in certain regions, the changes in personal law in much of Indonesia since the 1970s promoted women’s rights, individual autonomy, and variety in kinship practices more than in most countries that had catch-all regimes. They favored such ends more than the legal changes in Senegal, Libya, Egypt, Jordan, and Malaysia, where Islamic law also governs the majority of citizens. 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. The changes in the personal laws of Indonesia’s Muslim majority were roughly comparable in character with the changes introduced in Hindu law in India since the 1970s. But, the laws of the religious minorities were changed more extensively and from an earlier point in Indonesia. Reforms were less extensive in Indonesia in various respects than in Tunisia and Turkey, whose experiences are discussed later. However, a proposal of the Ministry of Religious Affairs would have changed Islamic law more dramatically in Indonesia than was done in Tunisia – that to equalize the inheritance shares of men and women with a similar relationship to the decedent, based on the understanding that this custom was prevalent among some ethnic groups and should be promoted among other groups as well. The Islamic laws recognized by all states give men twice the inheritance shares of women similarly related to the deceased based on the Qur’an, and policy-makers considered the equalization of these shares in Indonesia alone. 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. Thus, among the countries that saw modest reform, the most extensive changes were introduced or seriously debated in Indonesia. Regimes were particularly associated with vanguard groups and willing to launch social reforms at the cost of alienating other groups in early republican Turkey and early postcolonial Tunisia. Turkey’s republican regime relied largely on the support of urban reformists, and transplanted many Western social, constitutional and legal precedents although this caused considerable conflict. It banned various religious institutions (specifically, Sufi orders and the tombs of Muslim saints), closed religious courts and religious schools, and ended the recognition of Islam as a state religion, but simultaneously increased state control over mosques, their officials and their practices. In 1926, it made the Swiss Civil Code rather than Islamic law relevant to family disputes. Women gained various rights in family life as a result – e.g., to inherit shares in family property equal to those of their brothers, and to get divorces on grounds identical to those available to men. Moreover, polygyny and male repudiation were banned, the age of consent to marriage was increased to fifteen for women and seventeen for men, Muslim women were allowed to marry non-Muslim men, fathers were no longer preferred to mothers as child custodians, and marriage registration was required, making it easier for women to gain the economic benefits of marriage. Even after overt resistance to the regime declined, many litigants avoided state courts in rural areas, and sought unofficial courts that resolved family disputes with reference to Islamic and customary norms. Moreover, certain features of prior Islamic law were retained, albeit without official acknowledgement. For instance, the man was deemed the head of the family, made responsible for his wife in various respects including the management of her property, and allowed to bar his wife’s workforce participation, Various Western family law systems gave men similar authority over their wives until the early twentieth century. and women could remarry only three hundred days after their earlier marriages ended while men faced no such restriction. Besides, judges were allowed to base matrimonial verdicts on custom and tradition on matters not covered by statute. 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. The modernists led by Habib Bourguiba who assumed control over the Tunisian state right after independence were based mainly among the urban middle classes and unionized working classes. Much like Turkey’s early republican rulers, they narrowed their coalition by expelling the main opponents of their preferred course, the pan-Islamist faction of the ruling Neo-Destour Party led by Salah ben Youssef. They centralized power, limited the authority of lineages and religious elites, and introduced extensive family law reforms based on innovative interpretations of Islamic law. Tunisia saw the most extensive Islamic law reforms until the Moroccan monarchy adopted most of the Tunisian precedents and went further in certain respects in 2004. 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. The Tunisian rulers prioritized the reforms sufficiently to adopt them soon after independence although mobilization in their favor was weak, especially on the part of women’s organizations, and they aroused significant opposition. By way of contrast, the major reforms happened in Morocco nearly fifty years after independence, only once they were backed by effective civil society mobilization, and were passed in Indonesia at different points after more ambitious proposals were abandoned because they faced resistance. The different sources of the Turkish and Tunisian reforms influenced substantive law mainly regarding inheritance. While the changes in Tunisia retained the 2:1 Qur’anic ratio in the inheritance shares of men and women with a similar relationship to the deceased, the secularized Turkish family law was not bound by this constraint and equalized these shares. Women’s likely shares in family property were increased in other ways however in Tunisia, by limiting testamentary rights to a third of one’s property, prohibiting the donation of one’s property to waqf (public trusts run by religious institutions) - thereby also limiting the resources of religious institutions, increasing a wife’s share in the absence of male agnates, and giving the claims of daughters and son’s daughters priority over those of male agnates. Many of the other Tunisian reforms were similar to those in Turkey. For instance, religious courts were discontinued, polygamy was criminalized, the divorce and custody rights of men and women were equalized, the registration of marriages and divorces was required, and adoption was allowed in both countries. The husband’s authority over his wife was delimited less in Tunisia than in Turkey until spousal authority was equalized in both countries over the past decade. But women gained more rights in certain respects in Tunisia than in Turkey – e.g., mutual consent divorce was made available in Tunisia alone, and the minimum age of marriage was made the same for men and women in Tunisia while remaining higher for men in Turkey until 2002. The similarities in the reforms in the two countries show that Tunisian policy-makers interpreted Islamic legal traditions in tune with much the same modernist goals that their Turkish counterparts derived from secularist reasoning. The Tunisian regime contained conservative resistance and the operation of unofficial courts much sooner than the Turkish republic did, giving official law fuller and quicker influence over the resolution of family disputes. 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. Critiques of the monarchy’s elitist modernization efforts and secularist nationalism, and calls to reinstate Islamic authenticity influenced the Iranian Revolution. They shaped the conservative project the post-revolutionary regime pursued once the faction led by Ayatollah Khomeini and like-minded religious elites marginalized its former allies, including secularist democrats, egalitarian Islamists, and certain traditionalist Islamists, vested preeminent authority in an unelected religious jurist who was the state’s Supreme Leader and guardian of Islamic values, and gained a decisive voice in the elected parliament. Arjomand 1989; Arjomand 1988 The regime reversed many of the Pahlavi monarchy’s reforms, including in family law. For instance, it returned family law to the religious courts’ jurisdiction, removed women judges from these courts, made the judicial approval of male repudiation unnecessary, gave fathers and their kin priority over mothers as child custodians, deemed divorces based on old regime legislation invalid, deprived women of the divorce rights they had enjoyed if their husbands contracted other marriages without their consent, reduced the minimum marriage age to nine, reinstated temporary marriages, and enabled the stoning of adulterers. These features of the post-revolutionary Iranian regime and the extent to which it changed family law bore affinities with the experiences in Turkey and Tunisia. However, women had participated extensively in the Iranian revolution, and Khomeini and his allies wished to retain their support to compensate for excluding their ideological competitors. They claimed that Islamic norms as they understood them could offer women greater rights and dignity than the monarchy’s Westernization had, and deployed dynamic forms of Islamic jurisprudence to justify the institutions they established. This lent some legitimacy to the innovative religious reasoning used by certain public intellectuals not closely linked to the regime to support extensive public roles for women. Moreover, the demand for women’s labor increased because of the decline of the male population during the war with Iraq through the 1980s. Policy-makers reinstated many rights that women had enjoyed earlier for the above reasons. For instance, through the 1980s and 1990s, extra-judicial divorces came to be accepted only if there was mutual consent, the judicial approval of unilateral repudiation was required once again, and judicial approval of divorce made contingent on efforts having been made to reconcile the spouses, the woman’s deferred dower having been paid, and arrangements having been made for the father to support his children if he was not given custody of them. Moreover, standard officially approved marriage contracts gave women the delegated right to divorce husbands who took concurrent wives, and to receive on divorce payment for housework they had done during the course of their marriages, as well as half of the matrimonial property if their matrimonial faults were not the bases of the divorce. Women were reinstated as judges in family courts, which were moreover required to have at least a woman judge. The courts relied on Pahlavi-era statutes in areas of family life not covered by post-revolutionary legislation, often gave women child custody while holding their husbands or husbands’ kin responsible for the children’s economic support, and did not decree stoning. Such changes accompanied increased public roles for women, and helped secure the regime wider support (especially when cautious reformers occupied the Presidency) than the Turkish republic enjoyed through its first generation, without containing demands for further women’s empowerment articulated in innovative Islamic discourses. 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. The Pakistani dictatorship of the 1970s and the 1980s incorporated conservative Hanafi interpretations into Islamic law, applied Islamic law to the assessment of evidence and certain types of crimes, and reversed some minor reforms introduced by earlier governments, as part of efforts to reinforce Pakistani identity after the secession of Bangladesh by giving religious norms and symbols added public relevance. This gained it the support of the small Islamic parties as well as of less organized conservatives. The vision of public religion that motivated the President, Zia-ul-Haq, led him to persist in this course although it provoked the concerted opposition of the Shia minority and various women’s organizations and reformist organizations. 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. Thus, the kind of coalitions that regimes aimed to build and the ways in which they sought to engage with society influenced the extent and nature of the changes introduced in personal law. Table 2.3 summarizes these patterns. Table 2.3 near here However, the following features of state elites also crucially influenced the debates and conflicts that determined regime composition, the states’ approaches to engaging with society, and the course of personal law: the nationalist discourses framing their orientation, the forms of modernity they embraced, the ways in which they formally and informally classified cultural groups, their understandings of group cultures, their valuation of cultural authenticity, and the weight they gave personal law as a realm in which to assert modernity and cultural authenticity. We now consider the relationships between modes of imagination of the nation and approaches to personal law. B. Modes of Imagination of the Nation Most contemporary states present themselves as representatives of nations, a claim they deploy to build affective links with citizens, the majority of whom they typically consider part of the nation they aim to represent. This is a means through which the widespread impression in contemporary societies that the state is autonomous and regulates social action intensively is partly reconciled with the sense (also frequently encountered) that popular sovereignty ensures a close connection between the vitality of states and the welfare and cultural identities of citizens. Breuilly 1994, 390 and passim. elaborates on this connection. Many states also articulate discourses about particular religious groups and ethnic groups with which they claim a special connection, and thereby cement links with these groups. The discourses of nation and community that states and political elites employ do not only serve the purpose of building support and legitimacy, and increasing the chances that their commands carry authority. They also frame the social visions of many state officials and various other social actors in many ways. For instance, they influence how these individuals view the major constituent groups in their societies, the norms, capacities and dispositions of these groups, the social roles these groups should have, the institutions that would best recognize the qualities and roles of these groups, the relationships between these groups and the nations of which they are a part, the relationships of these groups with groups and traditions based in other states, and more generally the courses they wish their societies to follow. These discourses also frequently influence popular expectations regarding state action, and the language in which certain groups raise demands, whether in support of or opposition to state initiatives. Thus, they significantly affect the state-society interactions accompanying the formation and implementation of various policies. Discourses of nation and those of community develop through mutual engagement. The nature of political community is central to nationalist narratives, which vary however in how they see the nation’s constituent cultures and how they seek to forge community. These narratives vary in whether they consider the nation culturally homogeneous or diverse; and if they see the nation as diverse, whether they consider the cultures of the constituent groups to be entirely distinct or to overlap. Even discourses that present the nation as diverse vary in whether they construct national culture primarily with reference to the cultures of the most numerous or powerful groups, or also the cultures of minorities and subordinate groups; whether they seek to recognize the specificity of minorities or urge their assimilation; and whether they conceive the nation in terms of the ways of the dominant religious group or sect, a non-denominational religiosity, or a secular culture connected to predominant social practices and political institutions. Moreover, nationalist discourses vary in whether they see national cultures as static or dynamic; and in whether they wish to maintain or revive social and cultural forms, channel indigenous socio-cultural dynamics in new directions, or borrow institutions and mores from other societies. These features of the imagination of the nation, its cultural groups, and its traditions influence various policies, particularly those pertaining to the recognition, transmission and transformation of cultures, such as policies regarding education, language, religious communication and conversion, the promotion or restriction of inter-group interaction, the reduction, maintenance or widening of group inequalities, and systems of family law. The connections are particularly close between discourses of nation and community and patterns of regulation of family life because many actors consider certain forms of family and intimacy central to particular group or national cultures. They are explicit in personal law systems that are framed to reflect group cultures, and thus urge individuals to construct their interests in family life importantly in terms of how they see group norms. For instance, they lead many who wish to give individuals greater conjugal autonomy and property control, as well as many others who wish kin groups to control such matters, to understand and present their preferences as part of particular constructions of group normative and legal traditions. In such contexts, proposals that are given a credible basis in popular constructions of group culture have greater chances of acceptance. To the extent that salient discourses give certain cultural groups a privileged position in the nation, projects to change the personal laws of these groups tend to be framed as ways to make both group and nation. i. Homogeneity/ Diversity While official French, Turkish, Chinese and Argentinian nationalist narratives emphasize cultural homogeneity, the diversity of national cultures is central to official narratives about Indonesia, India, Lebanon, Kenya, Nigeria, Belgium and Switzerland. Discourses that emphasized cultural homogeneity while being formally inclusive led state elites to resist the recognition of the nation’s religious and linguistic minorities in France and Turkey, and to transfer religious minority group members to neighboring countries in exchange for members of the religious majority in Turkey. Kuru 2009 In certain other countries such as Israel and Pakistan, where national culture was defined almost exclusively in terms of the ways of the dominant religious majority, policy-makers acknowledged certain cultural differences and maintained some forms of minority recognition that predated the formation of these nation-states, such as distinct personal laws. However, they did not try to inculcate in the minorities the values they promoted among the majority. For instance, they changed the majority laws to promote the family norms they valued, but did not change the minority laws much. Policy-makers changed Muslim law in Pakistan at different points, initially in a somewhat modernist and later in a decidedly conservative direction, but not the laws of the Hindu and Christian minorities to which they devoted little attention. Yilmaz 2005 The Israeli legislature introduced significant changes in civil marriage law and the Supreme Court ensured the somewhat systematic application of these laws in the rabbinical courts governing the Jews, but not in the religious courts governing the country’s Muslims, Druze and Christians. In applying the standards of civil marriage law to family disputes among Jews alone, the Supreme Court reflected the Israeli elite’s view that minority practices were unimportant to nation-formation, and their unrealized hope that limited intervention in certain minority religious practices would restrict the mobilization of the minorities against their political and social marginalization. Edelman 1994; Peled 2001 The Pakistani and the Israeli states also enabled population transfers similar to those in Turkey. 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.” The Egyptian state periodically reformed the laws of its Muslim majority, but did not change Coptic Christian law after the 1930s, and disbanded the lay Supreme Communal Council that had earlier changed the latter set of laws. Along with the incorporation of shari’a in the constitution, this reflected the implicit view of Muslims as central to the nation that coexisted with official emphases on an Arab identity that embraced Christians too. 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. For similar reasons, the legislature and judiciary changed the laws of Bangladesh’s Muslim majority, but not those of its Hindu, Christian and Buddhist minorities although official nationalism focused on Bengali speakers (that include Hindus and Christians). See: Bhuiyan 2007; Bhuiyan 2010; Hoque and Khan 2007 about the personal laws. See: Baxter 1984 about nationalism in Bangladesh. However, in some cases in which the nation was defined significantly with reference to its religious and ethnic majorities, minority representation in regimes ensured changes in minority recognition. Although the Malaysian legislature focused on changing Islamic law from the 1970s, it also began to apply civil laws rather than personal laws to non-Muslims at the same time and changed these civil laws periodically thereafter, with the support of the ethnic minority parties that were crucial partners in ruling coalitions. 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. Among nationalist discourses that emphasize diversity, those that consider group cultures entirely distinct urge the accommodation of these cultures in ways that limit cultural exchange, while those that highlight cultural overlap are more open to enabling cultural exchange. For instance, the former type of understanding led the Lebanese and Syrian states to maintain the jurisdiction of community courts over their various personal laws, unlike the Egyptian and Indian states whose emphases on the Arab and Indian identities respectively shared by all their citizens urged them to give state courts jurisdiction over personal law, and to consider the introduction of uniform family laws. The judges who man community courts bring distinct social visions to bear on how they interpret their communities’ personal laws, and maintains differences between these personal laws. State courts consider appeals of community court verdicts in many countries. This affects adjudication to the extent that appeals courts change community court verdicts. Personal law systems tend to converge in certain respects when interpreted by the similarly trained and professionalized judges of state courts, even if they are said to rest on distinct statutes, jurisprudential systems, and cultural formations, as happened in India. Moreover, in India and Indonesia, where nationalist narratives highlight cultural similarities across religious and ethnic lines, courts construed personal law provisions in light of distinctive group traditions, customs shared by various religious groups, as well as statutes applicable to all citizens or the residents of particular states. This led them to apply similar alimony provisions in India, similar rules regarding acceptable marital alliances in particular regions of India, and the same customs concerning matrimonial property in Indonesia to different religious groups although the relevant features of statutory and uncodified religious law were rather different. While nationalist discourses emphasized that various religious groups shared certain cultural practices in India and Indonesia, the predominant discourses among political elites and religious scholars varied in other respects. In Indonesia, ruling elites defined belief in a non-denominational Supreme Deity as a central aspect of membership in the nation (although Confucianism, Hinduism and certain of the country’s folk religions are not monotheistic), and understood the customs of the archipelago, shaped by Buddhist, Hindu, Islamic and Christian influences as well as by folk spiritual practices, to constitute national culture. In India, official discourse presented the partially overlapping cultures of the major religious groups as central to the nation, without expecting religious belief of its citizens. While the Indian narrative was similar to Indonesian nationalism in its cosmopolitan pluralism, it coexisted with the wide prevalence of the view that Hindu practices were based in indigenous cultural traditions, while the ways of Indians practicing religions of foreign advent were not. This led many public actors to see Hindu norms as central to Indian national culture, in contrast with the mores of Indian Muslims, Christians, Parsis and Jews, which they took these groups to share with their respective transnational religious groups. They especially saw Indian Muslims as having greater affinities with Muslims in other countries than with India’s non-Muslims, despite the considerable cultural similarities between the inhabitants of particular regions of India. These contrasting images of Hindus and Muslims drew significantly from colonial understandings, discussed in: Cohn 1996; Parry 1972; Pandey 1990, 1-65. This contrasted with the predominant view in Indonesia that the country’s Muslims were embedded in the cultures of the nation, which other religious groups shared, although the influence of Islam began earlier in India. These discourses about the relationship of Muslims to indigenous culture encouraged Indonesian policy elites to promote similar changes in the practices of Muslims and other religious groups, and made both policy-makers and certain religious elites comfortable about incorporating the bilateral customs of many of the country’s ethnic groups in Islamic law. The rather different views of most policy-makers and Muslim religious elites in India made them disinclined to change Muslim practices in ways for which they could not find support in distinctively Islamic norms and reluctant to incorporate the bilateral and matrilineal practices of certain Indian Muslim groups into Indian Muslim law. Along with the limited understanding that most policy-makers had of Islamic norms, the visions many of these elites had of Indian national culture and Muslim mores seriously limited changes in India’s Muslim laws and kept the rules of this personal law system particularly distinctive. ii. Nations and Minorities The ways in which nationalist discourses framed cultural differences were related to how minorities were constituted in the course of state-formation and nation-making, especially in their formative phases. Centralizing states and the initial mobilizers of territorial communities generated new public categories such as citizen, town dweller and worker, which were linked to emergent practices more than to ancestry, faith and custom. They frequently regarded minorities as resistant to full incorporation in such categories, and thus as troubling constraints to the formation of modern public spheres. Various state-builders and mass mobilizers typecast groups such as the Jews and minority Christian sects of modern Europe, the “natives” and enslaved populations of settler colonies, various cultural and religious minorities of postcolonial states, and many recent immigrant groups in Europe and the Americas along these lines. 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. Some of them barely incorporated minority cultural traditions, practices and initiatives into their imagination of national culture and destiny. (The reconstruction of settler colonies as racially exclusive nations in southern Africa and parts of the Americas were stark instances of this trend). They typically engaged too little with minorities to be aware of many aspects of the dynamism and internal diversity of these groups. Nationalists who paid limited attention to diversities within the nation, such as those of France, China and Turkey, and those that associated national culture largely with the dominant majority, such as the state elites of Israel, Pakistan, Bangladesh, Thailand and the Philippines viewed various minorities along these lines. The former typically tried to assimilate minorities, while the latter were willing to accommodate minorities on the margins of national life. To the extent that their engagements with minorities were limited, certain pluralistic nationalists, such as many Indian nationalists, also marginalized these groups in certain respects. Aamir Mufti highlighted such patterns in the construction of European Jews and Indian Muslims, but did not address differences in predominant stereotypes of minorities that influenced whether and how they were accommodated. Mufti 2007 While certain minorities were typecast as backward and resistant to post-enlightenment modernization projects, others were considered particularly educated, open to new currents or enterprising, perhaps in devious ways that require the ethnically unmarked citizen (typically a member of the majority) to distrust them. For a discussion of varied group myths, see: Horowitz 1985, 141-184. Ruling elites’ stereotypes of Muslims fit the former pattern not only in some countries in which they were minorities (e.g., India, Thailand, the Philippines, and various European countries), but also in some in which they were the majority (e.g., much of the Arab world during colonial rule). Various mercantile groups (or groups typecast as such) were seen as wily and enterprising (e.g., Jews in Europe, Chinese in Southeast Asia), and certain minorities that had close links with colonial powers were considered modernizing agents with uncertain affinities with the nation (e.g., Christians in Syria, Lebanon, Egypt, India and Indonesia), and some groups were considered enterprising yet difficult to incorporate in public life (e.g., European Jews). Only a few official nationalist discourses incorporated minorities and their traditions significantly. They include the Canadian myth of dual founding nations, the multi-national vision of the former Yugoslavia and the bi-national conception of the former Czechoslovakia, the multi-ethnic understanding of countries such as Belgium, Nigeria and Lebanon, and the post-imperial and post-monarchic reconstructions of British and Spanish identity respectively. These pluralistic nationalisms included only certain minorities, and some of them resisted the accommodation of other minority groups. For instance, Spanish, Yugoslav and Czechoslovak nationalisms did not include the Romani, and Canadian nationalism was belatedly and only partially modified to embrace indigenous groups. Nevertheless, pluralistic nationalisms construct minorities differently from how homogenous and majoritarian nationalist discourses do. Initiatives emerged in various societies to gain certain minorities recognition, and international agreements and international organizations attended to these concerns particularly since the United Nations adopted the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities in 1992. Recognition enabled the closer integration of certain minorities into public spheres, mass politics and state institutions. However, discourses that placed minorities at the margins of political communities often urged state elites to accommodate only dominant understandings of minority culture, empower traditional elites as group representatives, consider reformists unrepresentative of group opinion, and make forms of recognition insensitive to emergent currents. They also induced policy-makers to give less priority to promoting among the minorities the practices they encouraged among most citizens. Many modernist state elites considered conservative minority elites less of a constraint to their authority than conservative majority elites, and this further reduced their inclination to promote minority reform. The resulting patterns of accommodation reinforced minority marginalization from various spheres and induced various minority group members to orient themselves primarily toward their own communities, even while these institutions lent certain group members added authority and resources, and made certain others too feel that they could maintain some practices they valued. Groups that nationalist discourses typecast as backward tended to be accommodated in these ways – e.g., the Muslims of India, the Philippines, Thailand and Israel, and the Hindus of Pakistan and Bangladesh. State elites tended to approach minorities considered attuned to education, enterprise and modernity differently. They were more likely to register support for social reform among these groups, and consider it appropriate to promote similar practices in them and the majority. Policy-makers also better understood opinion and initiatives among minorities that played important roles in regimes, as certain Christian groups did in Egypt and Indonesia and the Chinese and Indians did in Malaysia. Such stereotypes and circumstances prompted Egyptian policy-makers to authorize the secularized reformers of the lay Coptic Orthodox Supreme Communal Council to introduce a reformed Coptic personal status code in 1938 and consider the introduction of uniform family laws in the 1950s, led Indonesian judges to apply certain customs that granted women greater rights to the religious minorities, urged the application of new civil marriage laws to Malaysia’s religious minorities in the 1970s and the ongoing reform of these civil marriage laws thereafter, and induced Indian legislators and judges to effect convergence in certain features of Christian and Hindu law. However, certain minorities that were typecast as having modern inclinations were marginalized in regimes and official nationalist discourses, and the forms in which they were recognized did not remain sensitive to emergent currents. For instance, many nationalists took Christians to have affinities with the West and their transnational religious institutions although many Christians had opposed colonial rule in Egypt and India. This led the Egyptian regime to sideline Christians and halt Coptic Christian law reform to accommodate the Coptic Church from the 1940s rather than continue to empower lay liberals, and dissuaded Indian policy-makers from granting concerted Christian demands for adoption rights as they feared this would increase the group’s share of the population. Table 2.4 indicates these patterns. Table 2.4 about here iii. Cultural Change/ Cultural Stability Ruling elites that prioritized cultural modernization changed personal law most extensively, as in Tunisia and Turkey. Those that valued cultural maintenance or revival, as in Syria, Lebanon and early postcolonial Morocco were disinclined to change personal law. Those that wanted cultural continuity in certain respects and cultural change in other respects introduced moderate personal law reforms, and such elites were predominant in most postcolonial states, including in Libya, Egypt, Jordan, Iraq, Pakistan, India, Malaysia, Indonesia, Thailand, and the Philippines. If ruling elites wished to abandon many aspects of indigenous culture and adopt the ways of more privileged societies, they transplanted various institutions from these societies, as happened in early republican Turkey. Political elites that preferred to channel indigenous cultures in the directions they favored drew their social reform proposals significantly from interpretations of indigenous religious traditions and customs, and this was the predominant pattern in India and Indonesia. iv. Modernity/ Authenticity Discourses of nation and community engage in different ways with concerns of modernity and authenticity. Certain nationalist and cultural mobilizers frame their projects as primarily driven by considerations of authenticity and others as primarily seeking to promote modernity. However, even narratives that place rhetorical emphasis on authenticity engage considerations of modernity in certain ways. For instance, the overwhelming attention in official post-revolutionary Iranian discourse to building an authentically Islamic and Iranian public life coexisted with an engagement with Western institutional precedents, some of which were adopted during the Pahlavi monarchy. A specific fusion of considerations of authenticity and modernity shaped the dual character of the post-revolutionary Iranian state as an Islamic state led by an unelected supreme religious jurist as well as a republic governed partly by representative institutions. Similarly, nationalist discourses that emphasize considerations of modernity are also often supplemented by concerns to maintain connections to authentic national, regional or ethnic cultures. This was for instance the case with official discourses in early republican Turkey and Iran under the monarchy. They urged the adoption of various Western mores and institutions, but also attended to the uniqueness of national identity, which they located partly in the non-Islamic features of the cultural heritage of their societies, and considered crucial sources of social cohesion. The majority of nationalist and communitarian projects give considerable attention to both modernity and authenticity, particularly in late developing societies. They reconcile or fuse these considerations by presenting the changes they promote as emanations of group culture that would yield contextually appropriate forms of modernity. Official Indonesian and Indian nationalism are representative of this pattern. They presented these nations as based in the overlapping cultures of their various religious and ethnic groups, and drew inspiration from these portraits for their efforts to form secularist states that engaged with various religious norms and practices, and build developmental states that engaged with existing forms of social organization while gradually reducing socio-economic inequality. These states engaged religious norms and prior social organization more successfully than they promoted equality. These states adopted certain policies that were opposed by important religious institutions and leaders. This was for instance the case with the Indonesian ruling elites’ refusal to declare the establishment of an Islamic state and to make a constitutional commitment to maintain Islamic law, and the Indian state’s ban on caste segregation in temples, and its introduction of divorce rights and enhancement of women’s inheritance rights in Hindu law. But these choices were grounded in interpretations of these societies’ religious and other cultural traditions that enjoyed significant support. As a result, they occasioned far less conflict than various religious policies did in Turkey and Tunisia. The regimes from which they assume power influence, but do not solely determine, the models of modernity and authenticity that the mobilizers of nations and communities adopt, and how they base particular changes in state and society on such models. The leaders of the early Turkish republic wished to end the state’s close association with major religious institutions and religious traditions. This was an important reason why they relied heavily on certain European experiences in which the state had seriously curtailed the power of religious institutions, particularly those of France and Prussia, to end the recognition of a state religion, secularize the legal system, and limit religious symbols in public life. (They also drew significantly from these precedents as the Ottoman reforms of the nineteenth century had been based primarily on French ideas and experiences, and many of the military officers who led the early Turkish republic had been trained in Prussia). The influence of French and Prussian experiences and ideas also led them to prioritize the centralization of authority. This motivated them to establish control over the major Sunni religious institutions (as well as various ethnic and kin institutions), which ironically reproduced aspects of the Ottoman state’s engagement with them and gained some acceptance for this reason. But state control over Sunni institutions, the repression of various other religious institutions and the restriction of religious symbols, as well as the wholesale import of Western institutions, also aroused considerable opposition in a society in which many were mobilized to maintain important public roles for religion and indigenous norms. As their political visions developed mainly in the course of opposition to an indigenous monarchy (although they also briefly resisted European imperial powers), Turkey’s republican leaders were less concerned to revalue indigenous cultures and were comfortable about adopting many Western precedents, including in family law. Nationalists who opposed colonial states were ambivalent about prior experiences in imperial societies and the institutions established in their societies under colonial rule, and sought authentic indigenous cultural bases for more of their projects. This was a crucial reason why most anti-colonial Muslim nationalists around the world wished Islamic law to remain a major basis to regulate family life, even while they differed on the form they wished to give Islamic law. The majority wished to retain much of colonial Islamic law in Morocco, Lebanon and Syria, the more influential of them wanted to adopt alternative interpretations of Islamic law that promoted women’s rights and nuclear family autonomy in Tunisia, and certain anti-colonial Islamists preferred to apply conservative understandings of Islamic law to more areas of social life in various societies, and some of their ideological successors shaped policy a generation after independence in Nigeria and Sudan. Many anti-colonial nationalists did retain certain colonial institutions and borrowed other institutions from imperial societies, and presented these choices as necessary to promote modernity. However, concerns to structure state and society along indigenous lines often led them to alter these institutions or supplement them with others, in view of their societies’ specific features. For instance, Indian nationalists were critical of the serious limits within which colonial representative institutions had enfranchised Indians, and aimed to increase the authority and representative character of these institutions. This led them to borrow parliamentary democratic institutions from Britain, but depart from British models to adopt federalism to enable the governance of a much larger and more diverse society, form states along the lines of language use to accommodate more of the country’s vernaculars and language groups, avoid associating the state with a particular religion in view of the country’s religious diversity and its experience of considerable religious conflict, and try to introduce strong local government institutions based on pre-colonial traditions of village governance. Their efforts to strengthen local government institutions were least successful. Moreover, they abandoned certain colonial institutions that they believed had weakened national cohesion, such as electorates based on religious identity, even while recognizing various social and educational rights based on religious identity to accommodate religion’s important public roles. Certain nationalists and community mobilizers who replaced domestic regimes were also ambivalent about the institutions they inherited. This was the case with Iran’s post-revolutionary leaders, importantly because the monarchy they replaced was closely allied with Western powers and adopted various unpopular Western institutions. They believed the representative institutions that existed under the monarchy had failed to capture popular will, and Ayatollah Khomeini specifically felt that the enfranchisement of women was contrary to Islamic norms. However, Khomeini took genuine popular will to have crystallized during the revolution, so that post-revolutionary representative institutions elected based on universal franchise could represent the citizenry. These institutions were based largely on the model of the French republic, which had also influenced representation under the monarchy, but they were framed now as contemporary incarnations of Islamic traditions of shura (popular consultation). To ensure that they would pursue the authentic Islamic projects of their architects’ imagination, their decisions were subject to the approval of two non-elected entities, the supreme religious jurist and the Council of Guardians composed largely of religious scholars. In the sphere of family life, modern Western states promoted the authority of the nuclear family, monogamy, patriliny and, since the mid-twentieth century, more equal rights for the genders. Various Asian and African cultural traditions and personal laws (and earlier European traditions and legal systems as well) recognized the authority of larger kin groups and greater rights for men and agnates, and some of them recognized bilateral and matrilineal kinship practices. The culturally grounded modernists of Asia and Africa promoted the autonomy of the nuclear family and the reduction of gender inequality in certain respects. They framed these aims in discourses of nation and community, modernity and authenticity, which shaped the specific changes they sought in family life and how they related these changes to the other ways in which they wished to make state and society. Conservatives framed the social practices and institutions that they defended in alternative discourses of nation, community, authenticity and sometimes modernity as well. Various features of state-society relations influenced the pace at which modernists and conservatives promoted the forms of family life they valued and the extent of their success. Table 2.5 summarizes the relationships between certain features of nationalist discourses and personal law policy. Table 2.5 near here C. Explaining Policy Trajectories We have seen that certain features of state-society relations and the discourses of nation and community prevalent among ruling elites influenced the approaches of states to the personal law systems that they inherited. We will now consider how these factors interacted, and how their interactions influenced personal law. Certain features of personal law policy correspond with particular forms of state-society relations – specifically with the nature of social structure, state-society relations under the predecessor regime, the social coalitions that crucial state elites had or aimed to build, and the way these elites wished to restructure state-society relations. For instance, personal law reform was most extensive and promoted nuclear family autonomy most in countries such as Turkey and Tunisia, where the state was already somewhat autonomous of crucial social institutions, ruling elites viewed certain sections of the urban middle classes and working classes as the national vanguard, and these actors prioritized increased state control over religious, ethnic and kin institutions although this seemed likely to provoke significant opposition. It was more limited in societies such as Senegal, Libya, Egypt, Jordan, Iraq, India, Sri Lanka, Malaysia and Indonesia, where regimes were allied with modernist urban elites, as well as with traditionalist religious, ethnic and kin leaders, and wished to consolidate their support among both sets of groups. Reforms were barely attempted in Lebanon, Syria, Algeria, and until recently Morocco, where lineage leaders had more influence, ruling elites were either lineage leaders themselves or depended heavily on the support of kin groups, and professional, commercial, and industrial elites were weaker. Changes in personal law reduced women’s rights and individual autonomy where conservative religious elites were important leaders, members or supporters of regimes, as was the case in Iran, Sudan and northern Nigeria since the 1980s, and in Afghanistan while the Taliban ruled the country from 1996 to 2001. However, social structure and prior state-society relations did not determine either the social coalitions that state elites sought to retain or build, the projects of these elites to restructure state-society relations, or the discourses of nation and community in which these elites conceived these projects. In many of these countries, significant sections of the political elite wished to launch different projects and articulated distinct discourses of nation and community in response to the same conditions. In some, the regime at least initially included factions oriented toward very different projects and committed to different nationalist visions. Conflicts over alternative conceptions of the nation were important aspects of the competition over regime composition, and shaped regime support, and how regimes changed state-society relations. They specifically influenced how these regimes changed personal law, and made the nation and recognized its cultural groups in the process. I Cases of Extensive Early Reform In the countries that saw the most extensive early personal law reform, Turkey and Tunisia, political forces that articulated distinct discourses associated with different policy agendas emerged in response to Ottoman and French rule and were initially represented in the new regimes. The early Turkish republic included not only the faction led by Mustafa Kemal Pasa (Ataturk) that favored extensive Westernization and secularization, but also Turkic cultural nationalists inclined to revive certain pre-Islamic Turkish cultural norms as they imagined them and build links with other “Turanist” groups in Central Asia, and modernist Islamists who wished to change society as suggested by their reconstructions of Islamic traditions. In including secularists that wished to limit the public roles of religion as well as reformers that valued various religious norms, it was similar to some regimes that changed personal law less, such as those of postcolonial India, Indonesia, and Egypt, although the latter regimes included more conservatives. The Neo-Destour Party that led the Tunisian nationalist movement through the last two decades of colonial rule and assumed power from the French included not only the Islamic modernists led by Bourguiba and based among urban groups, but also pan-Islamists closely connected to religious elites and rural lineages. It included fewer secularists and at least as many conservatives as the contemporaneous Egyptian, Pakistani, Indian and Indonesian regimes, which reformed personal law less. These factions could have coexisted for longer, but this would have required compromise regarding social policy and personal law. In Turkey, a viable compromise could have involved the import of fewer Western institutions, the greater accommodation of indigenous cultures and perhaps also religious norms and symbols, and aspects of Ottoman personal law. The main ideologue of Turkic cultural nationalism, Ziya Gokalp, imagined a pre-Islamic Turkic family life organized around monogamy, bilateral kinship and somewhat egalitarian norms, and this could have inspired the incorporation of the country’s more egalitarian customs (real and imagined) in religious law, as happened in Indonesia. Certain Islamic ideas developed through innovative religious hermeneutics that were in currency then could have inspired extensive Islamic law reforms along the Tunisian lines. In Tunisia, the very different preferences of the Neo-Destour Party’s modernists and pan-Islamists regarding personal law meant that their cohabitation would have required that both sides accept the kind of moderate reforms seen in countries such as Egypt, India and Indonesia. However, the Turkish and Tunisian regimes changed family law far more. The Kemalist and Bourguiba factions of the respective regimes based their strategies on particular modernist nationalist visions, and to give them full effect, they severed their links with their former allies, who were more attached to religious institutions, predominant interpretations of religious traditions, or aspects of lineage power. They used the prior autonomy of the states they inherited to considerably increase state control over social institutions and repress their opponents. Other features of the social visions of ruling elites also influenced the more extensive change of personal law in Turkey and Tunisia than in India. The Turkish regime had fewer members who valued conservative religious norms, the Ottoman regime had given public religion and the religion of the majority much greater roles than India’s colonial state had, and the Turkish republican leaders were determined to limit various Ottoman legacies in contrast with Indian policy-makers’ ambivalence about British colonial legacies. Moreover, the dominant leader of the Turkish republic (Ataturk) used his popularity due to his having led the Turkish War of Independence to gain greater leeway to shape policy than his Indian counterpart (Nehru) enjoyed. His social vision was also far more elitist and devalued both dominant religious institutions and various forms of popular religion, and his inclination to establish an authoritarian regime made it less crucial to maintain broad support. The far greater inclination of Nehru than of Ataturk to consolidate democracy, maintain broad support, accommodate various religious practices and aspects of popular culture, decentralize power, and promote social change gradually were partly results of these leaders’ institutional contexts and earlier political experiences. Nehru became the leader of an institutionalized party that had existed for over six decades, had support across ethnic, religious, class and urban/ rural boundaries, considerable ideological diversity, a culture of compromise, experience of participation in representative institutions, and excellent prospects of consolidating its dominance in a competitive multi-party democracy. Ataturk’s role as a military officer shaped his political vision. When the republic was founded, Ataturk led one of the intensely competitive factions of the newly formed Republican People’s Party, which had support primarily in cities and among the Turkish majority, weak institutions, and an uncertain trajectory. These circumstances reinforced Nehru’s inclination to consolidate democracy, and Ataturk’s to build a centralized dictatorship. These inclinations led Nehru and most other Congress party modernists to compromise with conservatives over personal law, while leading the Kemalists to rapidly secularize family law although this eroded the regime’s support and impaired political stability. The leaders of postcolonial Tunisia, much like those of the early Turkish republic, did not prioritize either the formation of democracy or broad support. This made them willing to expel conservatives from the Neo-Destour Party and establish a one-party dictatorship, in a process that was eased by the sharp factional boundaries in the party. The greater fluidity of factional alignments in the Congress party reinforced the preferences of the modernists to craft careful compromises with conservatives. Both the Turkish and the Tunisian regimes introduced extensive social reforms, but framed them differently in crucial respects - as part of a project of secularization in Turkey, but as a way to revitalize public Islam in Tunisia. This was because ruling elites adopted Western precedents far more in Turkey. Even modernist Arab nationalists such as Bourguiba gave religious identity and Islamic law considerable importance in their constructions of nationhood, to overcome colonial hegemony and the associated devaluation of Islamic public cultures. 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. The Turkish republic emerged, by way of contrast, mainly in opposition to the indigenous Ottoman rulers who were closely associated with the ulama and their institutions. As a result, its leaders did not feel as pressed to uphold indigenous culture, and were more inclined to embrace Western experiences, including the separation of religion and state in many respects (uneasily combined with state control over various religious institutions), to distinguish themselves from the Caliphate. Reform initiatives based on religious and other indigenous traditions were also strong in early twentieth-century Turkey, but lost out to the Kemalists. 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. The different ways in which reform was framed in Tunisia and Turkey influenced the content of family law and induced a divergence in state-society relations. Statutory law gave women greater inheritance rights and autonomy from their husbands in Turkey than in Tunisia, as we saw earlier. But, as public religion was important in both societies, the religious framing of reform in Tunisia contained resistance more quickly, gained the state courts greater acceptance, and enabled greater regime stability than rapid state-led secularization did in Turkey. This was the case although many ulama and conservative Islamists sharply contested the interpretations of Islamic law incorporated in the Tunisian reforms. The Neo-Destour Party was able to maintain its dominance over Tunisia without using much repression from the mid-1950s (when its conservative wing was suppressed) until popular protest ended the rule of its successor party, the Rally for Constitutional Democracy, in 2011. The rapid reduction in the accommodation of religious norms and religious symbols, the suppression of certain religious institutions and the imposition of state tutelage over others made the Turkish republic much less popular. As a result, many citizens approached community courts particularly in rural areas through the first decades of the republic, and supported movements that favored the greater acceptance of public religion even later. Moreover, these conditions limited the popularity of the Republican People’s Party, which led the country through the first republican generation, and the party lost power whenever free elections were held, to parties that aimed to accommodate religion more in public life. This in turn led the military to overthrow these elected governments several times and rule directly, to curb religious movements and public expressions of religiosity, and maintain the form of secularism adopted in the 1920s. II Cases of Moderate Reform The modernist leaders who led the early postcolonial regimes of Senegal, Libya, Egypt, Jordan, Iraq, Iran, Pakistan, India, Sri Lanka, Malaysia, Indonesia and Thailand imagined the nation significantly along culturally indigenous lines. This made them unwilling to adopt as many Western institutions as in Turkey, and urged those of them that adopted some form of secularism (in Senegal, Egypt, India and Indonesia) to also accommodate various public roles for religion. Moreover, the way that Tunku Abdul Rahman, the United Malays National Organization and the National Alliance in Malaysia, Leopold Senghor and the Socialist Party in Senegal, the Hashemite dynasty in Jordan, the Gaddafi regime in Libya, the Ba’ath regime in Iraq, and the major Sinhalese parties in Sri Lanka balanced considerations of authenticity and modernity meant that they aimed for only moderate cultural changes. 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. Sukarno and many of Indonesia’s Nationalists, Gamal Abdel Nasser and Egypt’s Free Officers Regime, and Nehru and certain other modernists in India’s Congress party wished to introduce more extensive social and personal law reforms, for which they could count on the support of various mobilized groups. However, they also embraced encompassing visions of their respective nations, which reinforced their inclination to maintain broad coalitions. Many Indonesian nationalists imagined folk, Hindu, Buddhist, Islamic and Christian traditions to have shaped national culture. In a similar vein, India’s pluralist nationalists upheld a national culture that was a composite of the country’s various religious and ethnic cultures, and the Free Officers regime espoused a vision of an Arab nation including the country’s various religious groups. Such inclusive visions dissuaded the Egyptian and Indonesian regimes from forming Islamic states. Further, to maintain broad coalitions, the modernist leaders of India, Egypt and Indonesia tempered their transformative ambitions as some of their allies preferred to retain various forms of social dominance, including certain gendered and patrilineal patterns of family authority. This discouraged the introduction of uniform family laws in Egypt and India, motivated the reversal of certain reforms in Egypt, and limited the promotion of egalitarian customs in Indonesia until the 1970s. III Cases of Limited Reform Among the countries that saw limited personal law reform at least until recently, the maintenance of distinct personal laws under the jurisdiction of community courts was an important aspect of the Grand Alliance that gave Lebanon’s sects political representation. It cemented alliances between clan leaders and religious elites, and was an area of consensus among the political elite of various sects between whom sharp conflicts emerged over the terms of sectarian representation, resource distribution, and the definition of the nation. The Lebanese National Movement proposed to change the personal laws as part of its efforts to build a cohesive nation and a strong state, but its defeat during the civil war doomed this initiative. The focus of Moroccan nationalism on the monarchy gave the monarchs considerable leeway, The Istiqlal party was ambivalent about the monarchy, but the restriction of its support to urban areas limited its influence over Moroccan nationalism. which they used to maintain colonial personal law soon after independence as they depended heavily on lineages, but to change it extensively in 2004 in response to the growth of civil society mobilization. The socialist ideology of certain members of the FLN that formed Algeria’s one-party state urged them toward personal law reform, and similar features of the Ba’ath Party suggested this possibility when it seized power in Syria in the 1960s. This did not happen in Algeria because the FLN initially wanted to retain its links with conservative lineages and was later reluctant to attempt reforms opposition to which might strengthen the Islamist opposition. Neither did it happen in Syria because the faction of Hafez al-Assad, drawn largely from the military and the Alawi sect, expelled many socialists from the regime, lost support among the Sunni majority and Christians, and was reluctant to narrow its coalition further through risky reforms. The Syrian experience contrasted with that in Iraq, where the Ba’athists under Saddam Hussein interpreted their socialist heritage to require significant changes in religious practice and family life, and did not allow the restriction of their support mainly to a minority sect (Arabic-speaking Sunnis) to deter them from personal law reform. 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. Thus, discourses of the nation and its traditions were important foci of competition over regime composition and state-led social change in various societies, and specifically influenced multiculturalism and personal law. The debates over regime trajectories gave personal law considerable attention in Turkey, Tunisia, Lebanon and Indonesia; and some attention in countries such as Morocco, Algeria, Libya, Egypt, Jordan, Iraq, Iran, Pakistan, India and Malaysia. In Syria, Sri Lanka, Thailand and the Philippines, political elites attended less to personal law, but their debates over nation-formation influenced personal law. IV Minority Law Reform: The Indian and Indonesian Experiences Nationalist discourses and religious discourses affected not only the laws governing the religious and ethnic majorities, on which the earlier discussion focused, but also those applied to the minorities. A comparison of the Indian and Indonesian experiences highlights their effects on minority laws. Both postcolonial regimes had support among the different religious groups in their societies, and among groups whose preferences varied about the public roles of religion and the specific religious norms to be recognized. 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. Wishing to retain such support and limit secessionist inclinations among their religious minorities (and in Indonesia, among certain Islamists too), they retained various multicultural colonial legacies, introduced new forms of cultural accommodation, and adopted versions of secularism that accepted extensive public roles for religion. Official discourse advocated respect for different religions and depicted the nation as based in various cultural traditions, and the governments retained diverse personal laws and introduced moderate changes in them. Amidst these similarities, changes were made in many of Indonesia’s personal laws, but mainly in Hindu law in India, through the first postcolonial generation and Islamic law was changed more extensively in Indonesia. When Dutch Orientalists began to systematize their understandings of local practices in the late nineteenth century, just as colonial officials sought to regulate Indonesian society more closely, they saw adat rather than classical Islamic law as the main basis of family practices and particularly of inheritance patterns. Some of them claimed that Islamic law had not influenced Indonesian practices much, while others more accurately took Islamic law to have interacted with prior customs to shape the lived Islam of Indonesia. On these bases, they encouraged the recognition of adat in the religious courts, urged that Islamic law be applied only to those practices that it had shaped, and transferred inheritance from the jurisdiction of the Islamic courts to that of the civil courts in 1937. While accommodating adat in these ways, Dutch officials also formalized a system of Islamic courts in 1882 and helped implement their verdicts. Feener 2007; Hooker 2008; Cammack and Feener 2007 Colonial intellectuals tended to understand Hindu religious practices as based in Indian spiritual traditions, in contrast with the religious practices of India’s Muslims, Christians, Parsis and Jews, which they took to have originated outside South Asia. This led the colonial courts to apply a partly homogenized Hindu law to all residents of India who practiced religions of South Asian origin, including the Sikhs, Buddhists and Jains, although these groups did not claim a Hindu identity. They recognized various customs specific to region and caste among all religious groups. When doing so among Hindus, they understood many of these customs as aspects of territorially rooted schools of Hindu law - the Dayabhaga school applied mainly in Bengal, and different versions of the Mitakshara school applied in northern, western and southern India. But they saw the regionally rooted customs of groups practicing religions of foreign advent as departures from their religious traditions and religious laws, rather than as specific South Asian Muslim, Christian, Parsi and Jewish religious practices. These understandings created a tendency to equate the Hindu and the culturally indigenous, and sometimes place all groups practicing religions that emerged in South Asia in the Hindu category. Cohn 1996; van der Veer 1994 The main responses of nationalist and religious mobilizers to these features of colonial knowledge and colonial institutions had a bearing on personal law. Although certain colonial officials hoped to promote ethnic solidarities as alternatives to Islamic identity by recognizing adat rather than Islamic jurisprudence, Islamic norms remained significant to how most Indonesian Muslim intellectuals and political mobilizers constructed their cultural repertoires. Nevertheless, colonial understandings that adat represented practices on the ground reinforced the tendency of Indonesian Islamic scholars and qadis to construct Islamic law in light of adat. Moreover, these ideas led many of these actors to not only return to the Qur’an and the hadith (reputable accounts of the early Islamic community) to construct purified Islamic traditions as many Islamic scholars did elsewhere too, but to also demonstrate the relevance of the principles they derived from these sources for contemporary Indonesian contexts. This urged certain influential scholars, especially Hasbi Ash Shiddieqy and Hazairin, to gesture toward the development of an Indonesian madhhab that would replace the patrilineal Arabian customs incorporated into classical Islamic jurisprudence, especially its inheritance provisions, with bilateral Indonesian customs. Many other religious scholars gave considerations of maslaha (public interest) greater importance in their reformulations of Islamic law. These approaches were meant to help create an official Islamic law sufficiently connected to current social practices and predicaments so that it could more effectively promote social change and thus be the country’s living law. The efforts to develop a distinct Indonesian madhhab were unsuccessful, but led Islamic scholars to connect their jurisprudence systematically to the findings of cultural anthropology. They also encouraged scholars trained in pesantren (Islamic schools) to engage significantly with those trained in secular institutions, and Islamists to do so with secularists in developing their policy perspectives. Orienta list representations of adat, but not classical Islamic traditions, as crucial to indigenous culture also influenced nationalist discourses. They led many Indonesian nationalists to give indigenous customs shared by members of different religious groups, some of which had their origins in folk, Hindu and Buddhist traditions, a central place in Indonesian national culture, and to consider such constructions of the nation compatible with the Islamic identity of the majority of its citizens. Modernist nationalists such as Sukarno especially valued the more egalitarian customs, and this influenced how they imagined Pancasila (five principles, including the recognition of a Supreme Deity) as a basis for the postcolonial nation-state. These features of religious and nationalist discourse influenced how certain religious as well as secular jurists imagined an authentic national adat drawn from various customs of the archipelago as well as having affinities with constitutional values such as equality and liberty, and proposed the revision of both Islamic law and the rules applied to non-Muslim family life in light of this notion. They crucially enabled the extensive judicial recognition of bilateral customs, the Supreme Court’s grant of equal inheritance shares to sons, daughters and widows in some cases, and the serious consideration given at times to the systematic legislative equalization of the inheritance shares of men and women with a similar relationship to the deceased (contrary to the 2:1 Qur’anic ratio to which most Islamic courts adhere). Bowen 2003; Feener 2007; Cammack 2008 In contrast with Indonesian experiences, colonial knowledge about Indian society prompted many Hindu mobilizers to claim that Hindu traditions alone were based in indigenous culture, and to attempt to assimilate Sikhs, Buddhists and Jains into the Hindu fold. It also influenced the tendency of many nationalists to justify giving Hindus primacy in the Indian nation not only because they account for the demographic majority, but also because they considered Hindu norms the most reliable elements from which to construct an authentic indigenous national culture. As a result, various individuals and organizations envisioned the Indian nation based mainly or exclusively on Hindu sources, and focused their projects on the Hindu community. Jaffrelot 1996 discusses Hindu nationalist claims to a monopoly over indigenous Indian culture. Certain cosmopolitan Indian nationalists, of whom Nehru was most influential, rejected associations of the Hindu with the culturally indigenous, and aimed to build a territorial nation not based on religious identity. However, they remained allied in the Congress party with those who framed their pluralism in primarily Hindu idioms such as Gandhi, and with others who connected Hindu and Indian identity more intimately. The growth of conflict between religious groups through the last colonial decades reduced the engagement of Hindu political elites with minority initiatives, and the formation of Pakistan increased the weight of Hindus in the political elite, and gave Hindu-centered understandings of the Indian nation greater influence. Pandey 1990 highlights the forces that pulled Indian nationalists away from cosmopolitan modernism to Hindu majoritarianism. As a result, the postcolonial state framed its multicultural policies based on limited engagement with minority initiatives and traditions, centered its projects to build an indigenous and modern nation and reduce durable social inequalities on the Hindu community, and focused its efforts to promote the modern Indian family on Hindu law reform. Rather than contest the colonial view of Islamic traditions as foreign to local society by demonstrating that these traditions had taken root locally as their Indonesian counterparts did, the majority of Indian Islamic scholars viewed South Asian customs for which they could not find justification in classical Islamic discourse as “Hindu”, and encouraged Muslims to abandon them. Moreover, they highlighted the connections of their jurisprudence and religious reasoning to Arabic and Central Asian approaches more than to South Asian experiences. Zaman 2002; Metcalf 1982 This distanced Indian Islamic discourse from cultural currents among non-Muslims, rendered it less comprehensible to non-Muslims, limited the realization among many Muslim and non-Muslim reformers that they shared common goals such as the reduction of the practice of dowry, the extension of marriage networks, and an increase in the age of marriage, and specifically led many non-Muslims to underestimate Muslim reformist initiative. These circumstances, and the tendency of Muslim reformers to associate some of their goals (such as the reduction of dowry and the influence of caste over marital alliances) with the abridgement of Hindu influence, limited alliances between Muslims and others over social reform although certain practices that cut across religious boundaries could have served as bridges between the reform projects launched among different religious groups. These features of Indian Islamic discourse reinforced the tendency of most Hindu mobilizers to not register ongoing Muslim reform initiatives and to consider changes in Muslim practices of marginal relevance to building the Indian nation. As a result, early postcolonial policy-makers barely changed Muslim law until the 1970s. Certain civil society organizations that mobilized members of various religious groups engaged more with Islamic discourses from the 1980s, helped increase awareness of these discourses among certain policy-makers (particularly judges), and thus enabled some changes in Muslim law. However, these developments did not lend Islamic norms influence over the laws that regulated family life among most Indians - the matrimonial laws applicable to all citizens (such as those concerning alimony) or Hindu laws. 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. Moreover, the view among most Islamic mobilizers that certain indigenous customs favorable to women, such as the matrilineal and bilateral practices prevalent among some Indian Muslim groups, were incompatible with Islamic traditions hindered their incorporation into Indian Muslim law, in contrast with their adoption in Indonesia. The Indian experience contrasted sharply with the decisive influence that individuals trained in Islamic religious institutions exercised in Indonesia’s Ministry of Religious Affairs, which supervised the Islamic courts until 2004. Some of these individuals proposed reforms in Indonesian Islamic law framed through innovative religious reasoning, and ensured the implementation of some of their proposals. The ruling elites of India and Indonesia shared the goals of building modern and culturally indigenous nations while maintaining broad support. Religious and nationalist discourses led them to view somewhat different personal law policies as conducive to these goals, and to follow policy paths that differed in certain respects. Indonesian policy-makers changed the rules applied to various religious groups, while in India, reform efforts remained focused on Hindu law, and the changes in minority law were limited especially until the 1970s. Moreover, various indigenous customs with uncertain relations to classical Islamic discourse were incorporated into Islamic law in Indonesia, increasing women’s rights in the process, but not in India. If governing elites had engaged more with minority initiatives and drawn their understandings of the nation from the norms of various religious groups, the minority laws could have been changed earlier and more extensively in India. Under these circumstances, the Indian state is also more likely to have accommodated autonomist movements among the religious minorities effectively, and applied preferential policies and special civil rights laws to lower caste individuals that are Muslim and Christian, not only those that follow religions of South Asian origin. VIII Visions of Modernity, Authenticity, Religious Norms, and the Family in India When projects for postcolonial state-building and state-led social change were sharply outlined in India in the 1940s and 1950s, modernist nationalists that favored culturally grounded reform planned changes in personal law. B.R. Ambedkar, India’s first postcolonial Law Minister (1947-51), developed proposals for personal law reform by building on the suggestions of the bureaucrats who manned the Hindu Law Commissions of the 1940s, and Nehru underwrote the path the Law Ministry sketched. Such modernists framed their plans in view of their preferences of the less conservative Gandhian traditionalists, with whom they were closely allied. The Gandhians wished to conserve many pre-colonial Indian traditions, which they imagined in ways that justified moderate reductions in deep inequalities along caste and gender lines. Conservatives inclined to retain many more forms of social dominance also occupied important positions in the political elite and the Congress party. Prominent among them was Rajendra Prasad, India’s first President (1950-62). The majority of the modernists wished to consolidate a competitive multi-party democracy, build a developmental state, promote industrialization, gradually redistribute life chances, and consolidate the Congress party’s dominance. They gave these goals priority over changes in religious norms and family life. These priorities induced them to pursue economic redistribution and social reform in ways that did not alienate dominant groups. They thus sought to change personal law to signal the family norms that the state favored without rapidly restricting contrary practices, particularly until the 1970s. The majority of the traditionalists shared certain goals of the modernists, and this enabled these groups to compromise over multiculturalism, social reform and personal law. They shared with most modernists the aims to consolidate democracy, build broad social coalitions, introduce changes (albeit not extensive) in status hierarchies and economic relations based on indigenous traditions rather than only based on post-enlightenment outlooks and Western precedents, and (with the exception of a few Gandhians) promote industrialization. The modernists and traditionalists therefore readily agreed that they should not rapidly homogenize or secularize family law, or systematically change personal law based on egalitarian liberal principles. As a result, the Constituent Assembly placed an article that called for the introduction of a UCC in the Directive Principles of State Policy, which could not be enforced through judicial mandate; and no branch of government vetted the personal laws systematically with reference to the Fundamental Rights recognized in the Indian constitution. Rather, political elites agreed that they should maintain distinct personal laws, and change them gradually based on group traditions and initiatives. The orientations of the majority of modernist and traditionalist political elites toward family law were similar in other respects too, as were those of the cultural pluralists and proponents of Hindu hegemony, especially until the 1970s. These elites primarily engaged Hindu initiatives, and conceived projects to form the Indian nation and to reduce deep inequalities mainly in their light. As a result, their discourses about the Indian nation and the Hindu community overlapped significantly, and led them to focus on Hindu law reform which they framed as the basis for a future UCC, and influenced the ways in which they sought to change Hindu law. By way of contrast, they sought to make minority laws based on group culture and opinion, rather than as means to form the Indian nation. Most Muslim political elites opposed changes in Muslim law that lacked a basis in Islamic norms, and the majority of Hindu political elites were inclined to accommodate this preference. Moreover, at least until the 1970s, most Hindu political elites misunderstood minority opinion to oppose reform, and were in any case wary of changing Muslim law based on alternative Islamic norms that they understood poorly. As a result, no changes were attempted in the minority laws until the 1970s. The major participants in the personal law debates of the 1940s and 1950s relied on many of the same sources to argue that their proposals promoted practices appropriate for India and enjoyed support in widely valued traditions. Regarding Hindu law, they based themselves on the schools of Hindu law as colonial officials had constructed them, and also drew on the shastras, commentaries on the shastras that served as sources of colonial Hindu law, and customs specific to region and caste, particularly those the colonial courts had recognized. Some of them also relied on the model that Western law provided at that time of the monogamous nuclear family as the main unit of domestic life and intimacy. The modernists, particularly those like Ambedkar and Nehru who were trained as lawyers, devised their Hindu law proposals mainly based on reconstructions of colonial Hindu law, with which they were most familiar. They understood the shastras and commentaries on them far less, but claimed support in certain selections from these texts to convince more conservative political elites and civil society actors that their proposals had a sound basis in the traditions these groups valued. For instance, Ambedkar proposed to give daughters greater rights to ancestral property by modifying the inheritance shares prescribed by the Dayabhaga school of Hindu law, and to give all Hindu men and women divorce rights by incorporating in Hindu law the divorce customs of various middle castes and lower castes, practices for which he sought support in particular shastras. Conservative traditionalists, including certain Hindu religious elites, resisted these proposals based on similar sources. They gave priority to the inheritance rules of the Mitakshara school, which gave coparcenaries (collective entities) composed of male lineage members, rather than individuals, control over ancestral property; to the colonial understanding that the shastric view of marriage as a samskara (life cycle ritual/ sacred purifying ceremony/ process of self-realization) gave marriage the same status as the Judeo-Christian sacrament; and to the upper caste norm of marriage indissolubility. Muslim mobilizers addressed the content of Muslim law with reference to certain religious traditions interpreted in view of contemporary circumstances, their aim to build community solidarity, and the relationship of personal laws to the major nationalist projects of the time. They however made greater efforts than most Hindu elites to maintain continuity with earlier forms of religious jurisprudence, placed less rhetorical emphasis on modernity, and were less inclined to follow Western precedents, but were open to the influence of Islamic discourse in other societies. Moreover, Muslim mobilizers were more uncertain than Hindus were of the relationship their religious group would have with emergent nations and states, as the nature of Muslim representation and recognition in India and the contours of the Pakistani political project remained uncertain. Various Muslim elites proposed changes in Muslim law from the late nineteenth century, and changed some of its features from the 1910s. The major changes enabled the maintenance of family trusts and increased women’s divorce rights. Professional elites and religious elites cooperated to consolidate Muslim law through the passage of the Shariat Act in 1937. Professional elites attached greater value to the symbolic consolidation of the Muslim community in the process, while religious elites found most important the application of Islamic norms, rather than customs shared with members of other religious groups, to Muslim family life. The disengagement of policy-makers from Muslim law reform after independence, the periodic assertion of certain political elites and judges that a UCC was needed, and legislative initiatives to introduce uniformly applicable adoption and alimony laws in the 1970s led Muslim mobilizers to focus more on maintaining distinct Muslim personal laws than on changing these laws. The more conservative among them, represented in the All India Muslim Personal Law Board (AIMPLB) that was formed in 1972, also rallied in favor of various judicial precedents. Various reformist organizations and women’s organizations grew among Indian Muslims especially from the 1980s, and articulated alternative Islamic discourses that envisioned greater rights for women and nuclear family members. Many Muslims were disappointed with the responses of conservative mobilizers to Muslim socio-economic decline since independence, and this helped the reformers challenge the conservatives more effectively. Christian mobilizers reconstructed some features of religious discourse and reconciled other aspects of church doctrine with the changes they demanded in Christian law from the 1950s. In demanding increased divorce rights for instance, Christian lay organizations highlighted the increased acceptance of divorce in various global churches and the growth of marital separation among Indian Christians. Recognizing that this demand in tension with the predominant clerical view that marriage should be indissoluble, they emphasized that churches would not be required to recognize civil divorces. Some of them supported a UCC that would offer Christians adoption rights and increased divorce rights. However, as various Muslim organizations opposed a UCC and some Christians feared that a UCC would delink their religious vision from the regulation of their family lives, they reframed their demands as part of a changed Christian personal law. This linked their legal mobilization more closely to religious visions, and helped them overcome the resistance of church leaders to greater divorce rights. IX Postcolonial Reform in India Policy-makers changed personal law less extensively than they did certain other colonial multicultural legacies, such as preferential policies, language policy, and patterns of devolution of authority. Preferential policies based primarily on caste and tribal identity were made more uniform across the country and the constitution was framed to permit such preferences for some time. Moreover, various vernaculars were given official status and significant power was extended to states formed mainly along the lines of language use after independence. The lower priority they accorded changes in family life led the modernists to a compromise with the conservatives over Hindu law reform in the 1950s. The compromise gave women greater conjugal autonomy, by accepting inter-caste marriages within Hindu law, reducing restrictions on kin endogamy, and enabling divorce, than it gave them access to property, as kin coparcenaries retained control over ancestral property, in much of which women could not demand shares. Of the most contentious proposals, divorce rights were introduced as some Hindu texts justified divorce under specific circumstances, and the provision of divorce rights solely based on spousal fault and only three years after judicial separation made a rapid rise in divorce seem unlikely. The attempt to give daughters substantial shares in ancestral property did not succeed as neither school of Hindu law provided for it, it seemed to pose a greater threat to patrilineal authority than divorce did, and this made many modernists wary of this change and conservative traditionalists particularly opposed to it. These changes gave the majority of Hindu women certain new rights – e.g., to divorces and to a share equal to that of their brothers in their parents’ self-acquired intestate property. But the promotion of the monogamous nuclear family also reduced certain rights of women engaged in alternative practices – e.g., of women in some matrilineal groups to control property, and of later wives to inherit property from their polygamous husbands. This was a particular way in which the promotion of certain modernist visions of the normative family constricted the space for alternative forms of family and intimacy. The accommodation of certain Hindu traditions, which conservative elites particularly valued, deprived remarried widows of their rights in their deceased husbands’ property. Although only Hindu law was changed in the 1950s, these Hindu law reforms had such mixed implications for women’s rights that Muslim law gave women greater rights than Hindu law in certain respects even after these reforms. Crucially, Muslim law gave women greater access to ancestral property and quicker divorces. This was also because more extensive changes had been made in Muslim law through the last colonial decades. The unimplemented modernist proposals of the first postcolonial decade did not disappear from the agenda. For instance, Ambedkar’s proposal to give Hindu women the right to inherit shares of jointly owned ancestral property was reconsidered more readily when women’s organizations pressed this claim from the 1970s because lineage authority had declined in the meantime and it was already a part of certain important modernist visions of the family. This change was introduced initially between the 1970s and 1990s in five southern and western states, in which the prevalence of bilateral and matrilineal customs weakened the defense of patrilineal authority, and in 2005 in the rest of India. Group norms remained a basis of debate over this reform over the past decade. Proponents of the reform overcame the objection that the tradition of sons performing their deceased fathers’ pinda (memorial ceremony) justified giving sons greater rights in ancestral property, by highlighting alternative Hindu customs which allowed daughters to also perform this ceremony. Divorce was enabled on more extensive grounds among Hindus in 1976, based on mutual consent and without the necessity of prior judicial separation. This became possible because political elites valued conjugal autonomy more by then, and the provision of divorce rights in the 1950s had not led to a flood of divorces. This value change also made policy-makers more willing to increase Christian divorce rights once the major Christian organizations agreed on this change in the 1990s. Proposals to enable no-fault divorces even in the absence of mutual consent did not succeed, however, because the aim to maintain the nuclear family, particularly strong among traditionalists, coalesced with feminist concerns that this change would disadvantage most women in the absence of stronger provisions for alimony and sharing matrimonial property. The latter concerns carried weight because women’s organizations had gained greater influence over certain gendered social policies by then. Minority laws were changed from the 1970s as certain policy makers began to engage more with reformist minority traditions and initiatives. Even then, it was visions of group culture, rather than projects to form the Indian nation, that shaped these changes. Thus, judges extended alimony rights and limited unilateral male repudiation among Muslims based on particular interpretations of Islamic traditions – the construction of mata (provision), one of the forms of support from husbands to ex-wives mentioned in the Qur’an, as mandatory, and of unilateral male repudiation as valid only if the husband provides good reasons for repudiating his wife and spousal reconciliation is attempted. Similarly, Parsi and Christian divorce rights were increased only when mobilization grew among these groups for these changes based on reconstructing aspects of their religious traditions. Even after the onset of minority law reform, many policy-makers understood minority traditions poorly and considered the religious minorities marginal to the Indian nation. This prevented the accommodation of certain culturally grounded demands for minority law reform – for instance, to give Muslim women throughout India the right to inherit agricultural land, and to give Christians adoption rights. Concerns to consolidate Hindu hegemony especially motivated certain political elites and bureaucrats to resist the extension of adoption rights to Christians because they feared that this would lead to a surge in the Christian population. The minority law reforms of the last generation did not thus optimally use the room that mobilized group opinion and group traditions provided to promote equality and liberties. The imagination of the nation, its constituent groups and cultures, and its deepest inequalities through asymmetric engagement with the major religious groups continued to limit efforts to reduce gender inequality, promote individual autonomy, and build inter-religious understanding while recognizing valued traditions.  Diagram 1 Discourses of Community, State-Society Relations, and Personal Law  Table 2.1 Influences on Multiculturalism and Personal Law State-Society Relations Discourses About Social Structure Prior State-Society Relations Regime Coalitions Projects of State Elites Nation Cultural Groups Traditions 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, Aceh 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 (Conservative) Moderate Senegal, Libya, Egypt, Jordan, Iraq, Iran, Pakistan, India, Sri Lanka, Bangladesh, Malaysia, Indonesia, Thailand, Philippines Iran under the Pahlavi monarchy, Pakistan until the 1970s Limited Algeria, Morocco, Morocco until the last decade 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; Civil marriage law was not applied much in Israel’s Islamic courts. Hindus in Bangladesh, Pakistan Little Change – e.g., Muslims in Lebanon, India 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. Modern Assimilate in Civil Law – e.g., Christians in Turkey Moderate Modernist Reform – e.g., Chinese in Malaysia, Civil laws were applied from the 1970s to Malaysia’s non-Muslims, among whom Chinese are the largest ethnic group. Copts in Egypt Reform was early but not sustained in Egypt. Moderate to Extensive Modernist Reform – e.g., various ethnic groups in Indonesia, Christians in India Reform was late in India.  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, Iran during the Pahlavi monarchy Pakistan, Pakistan until the 1970s India, Sri Lanka, Bangladesh, Malaysia, Indonesia, Thailand, Philippines Little Change Morocco, Morocco until the 1990s Lebanon, Syria, Malawi 93 Ch.2 -