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Consuming DesiresFamily Crisis and the State in the Middle East
By Frances S. Hasso
Stanford University PressCopyright © 2011 Board of Trustees of the Leland Stanford Junior University
All right reserved.
Chapter OneLegal Governmentality and the National Family
Men and women are constructed as different entities under [Islamic] law, particularly in the sphere of family relations, where male privilege is undeniable. For as long as the law remained uncodified, the interpretations of the meaning of these differences retained some fluidity and flexibility.... But as soon as the law is codified, gendered right and gendered duty became incontrovertible points of law, brooking no adjustments or modifications except from on high.
Judith E. Tucker, In the House of the Law (1998)
LEGAL RATIONALIZATION has been central to consolidating complex societies into modern nation-states in the Middle East and North Africa (MENA) since the nineteenth century. In the process of creating their secular legal systems, these states also established institutionalized forms of gender inequality less subject to negotiation. God's law, or "shari'a" for believing Muslims, differs from these modern legal systems in that it was historically uncodified and thus more flexible, heterogeneous, and at times even idiosyncratic in its application. The shari'a, a noun referred to frequently in the Qur'an, is the ideal "path" for human behavior: "Muslims understood this to mean that God had established a body of rules and recommendations and that human salvation depended on their ability to identify and obey these. Over time, Muslim legal thinkers came to conclude that God had placed every conceivable act in a five-part moral scale" that ranged from mandatory to prohibited. The Islamic jurisprudence (fiqh) that developed over time to determine and clarify God's rules, however, was always based on hybrids of sacred, secular, and customary sources, methodologies, and concerns that coalesced in specific contexts. Despite the instability and plurality of its deployments and meanings, the term shari'a is unlikely to be forfeited by political, religious, or other social actors given its cultural significance and association with sacred and thus legitimate authority. Modern legal codes related to "personal status" or family domains continue to be the most likely to maintain Islamic idioms (such as referring to them as drawing from "shari'a") in MENA states. While these projects are often defended as necessary to improve social well-being, I argue that codification of law, rationalized legal procedures (such as minimum age requirements for marriage), registration requirements, and other state-initiated changes with respect to birth, marriage, inheritance, guardianship, and divorce are largely designed to expand state power. These projects are often "successful" because access to rights and resources controlled by the state is usually attached to compliance with state rules. These projects are most important, I contend, in their ability to reshape norms and subjectivities, although they do not always work in the intended directions.
Legal rationalization has existed for well over 150 years in Egypt and is more recent to the United Arab Emirates (UAE), although the ability of these laws to penetrate daily life and establish preferred norms of behavior has always been uneven. In other words, there is a historically contentious relationship between people's actual marriage, sexuality, and other practices and the "national family" agendas of most modern states. I use the term "national family" as a metaphor for a modern, consolidated, cohesive nation-state (the postcolonial state as family writ large) and for actual families understood in instrumentalist terms as social units that either weaken or strengthen the nation-state. People in the UAE have more insistently than Egyptians resisted governance projects designed to mold their identities, norms, and family practices. They have also significantly hindered the consolidation of a federalized nation-state. This resistance does not stem from their more democratic and antipatriarchal orientations but rather because the governance agendas of the UAE as a federal entity compete with the still relevant values and norms associated with shari'a and tribal authority systems, themselves often in tension with each other and responsive to sociohistorical conditions. Moreover, not all ruling families in the UAE are equally interested in the establishment of a unified nation-state—a "national family"—that supersedes their regional sovereignty.
In both Egypt and the UAE, legal rationalization is often attached to modernization goals and has typically been encouraged not only by state authorities but also by nationalist, liberal, women's rights, and many Islamist activists given its potential to displace existing sources of authority. That is, nonstate actors do not uniformly reject "reform" projects that consolidate state power. Indeed, as Liat Kozma shows for late nineteenth-century Egypt, there is often "interaction rather than mere domination" between state apparatuses and people. In the virginity cases she studied, Egyptians who perceived that their young charges were sexually violated often appealed to new civil courts and police authorities for intervention—including inviting them to examine young girls' bodies and encouraging them to close brothels to "protect" girls and women—for a "plethora of reasons." These interventions, she argues, "enabled the state to increase its hold on the population."
Some relevant observations are in order on what is signified by the Arabic words (signs) "usra" and "'a'ila" as references for "family." Usra, the preferred term in postcolonial MENA states and the one most often used in the contemporary UAE and Egypt, means "family, household, house." It comes from a modern spatial understanding of confinement and implies a nuclear family of parents and children in an architecturally bounded, private household. Indeed, asir (masc.), from the same root formation, is the Arabic noun for "prisoner" or "captive." Usra, moreover, is usually deployed in a manner that conceptualizes the family as a foundational unit of the state, an understanding that facilitates the governance and management of individuals and collectivities. In contrast, 'a'ila is an older social and relational rather than spatial way of referring to family as a wider and more powerful network of people who depend on each other for "sustenance, support, food." 'A'ilas can compete with states for sovereignty, control over economic resources, and legitimacy, which is why states typically choose to weaken them through co-optation/absorption or exclusion. While both 'a'ila and usra are hierarchical and patriarchal in their hegemonic forms, family as usra makes women more socially, materially, and emotionally dependent on their husbands or fathers, or on states in lieu of these individual men. I contend that the "modernization" of family and other laws in the MENA region has primarily been motivated by the desire to shift family norms and structures from 'a'ila to usra arrangements to better serve the interests of the nation-state. This formula is more complicated in the UAE, where sovereignty over territory and people at the emirate and federal levels was secured (but is nevertheless always insecure) by the most powerful 'a'ilas. These ruling families are no less concerned with the sexual and marriage practices of subject-citizens, non citizen residents, and migrants.
Governmentality, Law, and the Family
This section provides an overview of what may be called postmodernist and postsovereigntist approaches to the state, law, and family. While Michel Foucault understood power and resistance as "immanent in our social practices and conduct" rather than objective things lodged in state or other apparatuses, he considered the state to be the most important "form" and site for "the exercise of power" and argued that "in a certain way all other forms of power relation must refer to it." Nevertheless, the state "has no heart in the sense that it has no interior"; it is, rather, an effect. Derek Sayer similarly understands the state to be a discursive mask of unity, what Philip Abrams calls a "collective misrepresentation," although to rule, states must use domination since they are often unsuccessful in thoroughly constituting the "subjectivities and socialities" of the targets of rule. From such a perspective, the purpose of the modern state is to legitimate and mystify what would otherwise be considered "unacceptable domination," although "armies and prisons" are critical "backup instruments." Rather than assuming states to be complete except at revolutionary or other moments of rupture, such approaches consider all states to be ongoing projects.
Foucault's essay of the same title explains governmentality as a "complex form of [modern state] power" comprised of practices that began to develop from the middle of the eighteenth century. Government in this use "designated the way in which the conduct of individuals or of groups might be directed [emphasis added]: the government of children, of souls, of communities, of families, of the sick.... To govern, in this sense, is to structure the possible fields of action of others." Modern governmentality creates "new institutional and discursive spaces (themselves not immutably fixed) that make different kinds of knowledge, action, and desire possible." The goal of governmentality is to integrate people into "a totality" in a way that individualizes them while augmenting the state. The techniques of modern governance are sometimes coercive and sometimes seek consent, although neither are their "essential form," since they aim to constitute subjectivities that are self-regulating and self-managing. Alan Hunt and Gary Wickham stress that "all instances of governance" include failed attempts and "elements of incompleteness (which at times may be seen as failure)," although these become grounds to design new projects that aim to succeed where previous efforts foundered. The practices of governmentality occur "at once internal and external to the state, since it is the tactics of government which make possible the continual definition and redefinition of what is within the competence of the state and what is not, the public versus the private, and so on." Civil society, then, is a "transactional reality" that like others (sexuality, madness) is "real" and yet "born precisely from the interplay of relations of power and everything which constantly eludes them, at the interface, so to speak, of governors and governed" in liberal political systems.
Biopolitics is a form of productive power that is essential to governmentality and targets subjectivities and bodies. It describes power that "exerts a positive influence on life, that endeavors to administer, optimize, and multiply it, subjecting it to precise controls and comprehensive regulations." Biopolitical methods are concerned with the "welfare" of a population and improving "its condition," which Foucault argued was the nature of modern "pastoral power." Biopower requires the development of relevant fields of knowledge, "technologies of government," such as statistics, and experts to study "biological processes: propagation, births and morality, the level of health, life expectancy and longevity." Statistics and other information provide comparative knowledge of "different states' respective forces" and are necessary because "government is possible only when the strength [and 'capacity'] of the state is known." Working with other entities, states use such information to undertake "large-scale campaigns," not always with "the full awareness of the people," to stimulate "birth rates," direct populations to live in "certain regions," or have people engage in particular "activities." Talal Asad affirms that for colonizers and even "more strongly" for modernizing states in the Middle East and North Africa, statistical practices enumerating "births, deaths, diseases, literacy, crimes, occupations, natural resources, and so on [were], from a governmental standpoint, not merely a mode of understanding and representing populations but an instrument for regulating and transforming them."
Indeed, rather than using "laws, decrees, [and] regulations" to exert control, the modern arts of government rely on discipline and "regulation of conduct." Foucault maintains it is not that "law fades into the background or that the institutions of justice ... disappear," but rather that norms and normalization become more important than a "juridical system" that threatens with a "sword those who transgress." Modern governmentality, with its attention to efficient human conduct, "must discover its own instruments and ways of reasoning that are distinct from patriarchalist models of the household and family." It aims to avoid "subtractive methods" that threaten to take things away from those who do not obey. This orientation breaks with the previously dominant political rationality since the goal is "not to reinforce the power of the prince" but rather "the state itself," even as mechanisms of sovereign power continue to exist. Mitchell Dean usefully distinguishes the objectives of sovereign, disciplinary, and governmentality rationalities in Foucault's work: "The object of sovereign power is the exercise of authority over the subjects of the state within a definite territory, e.g., the 'deductive' practices of levying of taxes, of meting out punishments. The object of disciplinary power is the regulation and ordering of the numbers of people within that territory, e.g., in practices of schooling, military training or the organization of work. The new object of government, by contrast, regards these subjects, and the forces and capacities of living individuals, as members of a population, as resources to be fostered, to be used and to be optimized."
On what basis can one argue, as I do, that legal processes are at the core of the governmentalizing practices of states such as Egypt and the UAE given that Foucault is understood to have focused on discipline and normalization rather than the sovereign power of modern states? Kevin Walby contends that Foucault's early work "creates an unjustifiable binary between sovereignty/law versus discipline/norm." Walby argues for "retrieving" law and analyzing it as a "mode of regulation" with intended and unintended consequences. Others argue that while Foucault did not systematically study legal systems in his major research projects and had no theory of law, he richly considered law using a nonessentializing approach that treated it as "uncontainable" and "illimitable." François Ewald contends that Foucault did not understand the juridical power ["law as the expression of a sovereign's power"] of premodern monarchical states as synonymous with our general understanding of law. Rather, Foucault perceived juridical forms of power to be dominant in premodern states and normalizing forms of power to be dominant in modern states, but both forms can be expressed in law. Indeed, Ewald argues (as does Foucault), that "normalization tends to be accompanied by an astonishing proliferation of legislation." Thus, while there is a "regression of the juridical" that "accompanies the rise of biopower," this does not "necessarily signal the disappearance of the law." Postsovereigntist approaches examine law as the formal expression, derived in time and place, of different political rationalities.
How does the codification of family and other law in the MENA region relate to normalization and modern governance? In addition to its rationalizing and regulatory purposes, law constitutes and expresses "norms," or normalizes particular behaviors, especially through the power to "qualify, measure, appraise, and hierarchize ... [which] effects distributions around the norm." This normalization for political purposes requires the development of "common standard[s] of measurement," as illustrated by the postrevolutionary "introduction of the metric system, the institution of a truly national language, calendar reform, [and] the creation of the Civil Code" in France. Similarly, I examine codification, other forms of legal rationalization, and regulation in the UAE and Egypt as normalizing techniques that reconstitute relationships between rulers and ruled, sexual possibilities, and family relations and that do so in order to consolidate state power and resources.
Excerpted from Consuming Desires by Frances S. Hasso Copyright © 2011 by Board of Trustees of the Leland Stanford Junior University. Excerpted by permission of Stanford University Press. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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Table of Contents
1 Legal Governmentality and the National Family 24
2 National Families in "Crisis" 61
3 Transnational "Invasions" and Emerging Selves and Desires 99
4 Improving the National Family 132