The Trouble with Marriage is part of a new global feminist jurisprudence around marriage and violence that looks to law as strategy rather than solution. In this ethnography of lawyer-free family courts and mediations of rape and domestic violence charges in India, Srimati Basu depicts everyday life in legal sites of marital trouble, reevaluating feminist theories of law, marriage, violence, property, and the state. Basu argues that alternative dispute resolution, originally designed to empower women in a less adversarial legal environment, has created new subjectivities, but, paradoxically, has also reinforced oppressive socioeconomic norms that leave women no better off, individually or collectively.
About the Author
Srimati Basu is Associate Professor of Gender and Women’s Studies and Anthropology at the University of Kentucky. She is the author of She Comes to Take Her Rights:
Indian Women, Property, and Propriety, the editor of Dowry and
Inheritance (Issues in Contemporary
Indian Feminism series), and the coeditor of Conjugality Unbound: Sexual Economy and the Marital Form in
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The Trouble with Marriage
Feminists Confront Law and Violence in India
By Srimati Basu
UNIVERSITY OF CALIFORNIA PRESSCopyright © 2015 The Regents of the University of California
All rights reserved.
Law, Marriage, and Feminist Reform
Courts are notoriously difficult to represent. Photography is generally forbidden, as are audio and video recordings. Most commonly, the cacophony of court corridors comes to us in stiff legal language, in the form of parsed judgments (less often in ethnographic jottings, as in this book). One way of capturing the space, I thought, would be to look at the walls of a family court in India, keeping in mind that artifacts may be placed by design or without coordination, by different people over time. Here is a verbatim rendition of what ornamented the walls of the Mumbai Family Court in 2006, in no particular order:
No mobile phones.
3 monkeys. Open your Eyes—Speak Out—The ACB Listens to You. Expose Corruption. (The Anti-Corruption Bureau)
Men who think women are playthings deserve women who think men are generous bank accounts.
Children are LITTLE people who need BIG rights. (Dr. Klaus Klankel, governor and federal minister of foreign affairs)
A Lean Compromise is better than a FAT lawsuit.
It is through women that order is maintained. Then why call her inferior from whom all great ones are born? (Guru Nanak)
Don't walk behind me—I may not lead
Don't walk ahead of me—I may not follow
Just walk beside me and be my friend and partner. (Albert Camus 1913–1968)
A child has a right to love both parents—give your child that gift.
Oh God, why can't a woman take stock of her destiny? Why does she have to stand by the roadside, head bowed, waiting patiently for a miracle in the morrow? (Rabindranath Tagore)
The best gift a father can give his child is to love their mother.
The jumble of discourses in these sayings suggests the frameworks through which law, mediation, marriage, and feminism proliferate in contemporary India. They encapsulate the four primary zones of trouble explored in this book. First, disciplinary governmentality, marked in the instruction to turn off phones and the invitation to report corruption, follows the book's preoccupation with the force of law in the postcolonial state. Here, we see the state to be benevolent and stern, righteous and lofty, mimicking family discipline even as it attempts to transform it. Second, the seductive call for alternative dispute resolution (ADR), in which the "fat lawsuit" is pejoratively contrasted with the "lean compromise," suggesting trim efficiency and shedding the burden of law. This book interrogates the trend toward use of such alternate forums and their seemingly contradictory coexistence with expanded governmentality. A third trajectory pertains to the normative ideals of marriage and family in law: gendered discourses of male productivity (men as "generous bank accounts") and female sexuality (women as "playthings") are represented as unhealthy mirror images, and the optimal childrearing unit is presented as two-parental and "loving." These ideals suggest that companionate conjugal love is the basis of the ideal family, that children have rights, and thus that family law is a progressive space of liberal modernity, a vision of gender often different in practice from that articulated by judges and counselors.
Fourth, it would appear that the space is characterized by a broad, noble feminism, articulated through the marital ideals above, as well as the incongruent poetic (male) voices of Nobel laureates Rabindranath Tagore and Albert Camus, and Sikh religious leader Guru Nanak. Nanak's equation of the feminine with order (and hence the masculine with chaos) appears to honor women; however, it casts the feminine as a haven from the world of frenetic action, as difference from the norm. In contrast, Tagore's poem Sabala (The strong woman), written in the voice of a rebellious feminist subject, makes a powerful argument for equity and justice as part of the human condition, providing a sharp critique of patriarchy. Camus's presence is most ironic in this cohort, given his legendary dislike of marriage. Best of all, in the quote in question, commonly misattributed to him, the phrase "and partner" has been added only in this version; hence the marriage-averse Camus is here invented to represent marriage as a form of friendship. The lesson to be had by reading these together—that women deserve to be equals, friends, and companions—suggests marriage as a site of heteronormative harmony, in which discordant notes of power, hostility, and rebellion are muted.
These walls serve as pedagogical frames for litigants, setting up what they might expect even before they encounter a court or a counselor. They are led to a notion of the ideal family, often at odds with the experiences of family that bring them to court, and to claims of gender equity that may not be borne out in adjudication. Most people conceive of law as a distant and formidable realm, often imagining it through popular literary or film renditions where moral order is dramatically restored and justice meted out with certitude. The discourses above advertise a new world of active negotiation, without intimating that it is one in which justice, order, and strategy are likely to be much murkier.
We will be lingering in such courts in this book, but also in other spaces where law is deployed formally or informally to work out marital trouble, including Women's Grievance Cells managed by the police to hear complaints of violence, and mediation agencies variously affiliated with the state and women's movements. Th rough encounters with family law, intimate violence, and mediation in contemporary India, this book will examine marriage as reflected and shaped through law and, conversely, provide an ethnographic portrait of everyday law as depicted through the governance of marriage. Accounts of marital discord serve as a diagnostic, as "trouble cases" in the classic legal anthropological sense of revealing cultural frameworks. Through them, we can contemplate the categorical trouble of marriage itself: an institution fused with "trouble and strife" by definition, persistently associated with conflict, deprivation, and exclusion.
The legacies of global feminist legal reform, particularly the Indian women's movement of the late 1970s and 1980s, are another central node in this book. Has the heavy emphasis on law as the instrument of achieving gender equity been effective? We seek an answer in the workings of institutions that were founded as a result of local and global feminist campaigns since the UN Decade for Women (1976–85), looking for what has worked and what has emerged unexpectedly, what has caused conflicts within women's movements and what has been appropriated by other groups. The main Indian laws profiled relate to divorce and gender violence: the Family Courts Act (1984), S498A cases against domestic violence/"torture" added to the Indian Penal Code in 1985, and S376 of the Indian Penal Code against rape.
The following chapters consider how laws transform social being. If we all recognize that law provides neither stable nor predictable solutions, what do social movements, including feminist movements, gain by insistently turning to it? Litigants may find that law opens strategic spaces of negotiation, despite the practical limitations of legal remedies. New laws, created in response to political imperatives or social movements and filtered through legislatures, are applied by individuals and groups in both foreseen and unanticipated ways and are often connotatively transformed in the process. People "bargain in the shadow of the law," shaping it to their ends and building new legal cultures. Th is basic tenet of legal pluralism guides my approach: I find it pointless to debate whether the laws in question are "correctly used" or "misused," whether they are "good" or "bad" laws, whether feminist visions are adequately recognized. Rather we follow the ways they are utilized as new cultural horizons: to stretch the entitlements of marriage, calibrate the meanings of violence, or construct kinship. I focus on "the kind of society in which law operates," as opposed to the efficacy of particular rules or concepts, an anthropological rather than a legal reform approach (Moore 1969, 253).
Mediation (and alternative dispute resolution more generally), characterized as an end to the trouble represented by law and a mode of generating plural customized solutions, features prominently in these discussions. A popular feminist resource, it seems to offer a way around the oppressiveness of trials, interminable delays, and fuzzy legal language, setting up women as empowered agents in control of their narratives and transforming legal authority. The very ubiquity of mediation is the cause for worry here. Mediation, as law's Other, is ambivalent in the same ways as law: new spaces and new modes of speaking do not necessarily alter legal authority. Discourses of efficiency and resolution may be highlighted in mediation at the cost of working through questions of anger and power, thus becoming a form of "coercive harmony," to use Laura Nader's trenchant phrase (1997). As we will see, marriage mediation is particularly fraught, given the predominance of questions of power, property, and violence.
The following sections lay out the four main theoretical and thematic trajectories of the book: law as strategy and force, the possibilities and limitations of alternate dispute resolution, marriage as both privilege and deprivation, and the ambivalent effect of feminist jurisprudence in the gender-equality-friendly modern nation-state. The introduction then orients readers to the methodological framework of the book, the political and cultural locations of fieldwork, and the demographic context of Indian marriage and divorce.
LAW AND CULTURE
Law is the clothes men wear
Law is Good morning and Good night.
—W. H. Auden, "Law Like Love" (1941)
This volume echoes Auden's parsing of law as encompassing shifting, contradictory areas of life: law as practice, custom, and habit ("the clothes men wear"); as orthodox and disciplinary ("Law is the Law"); as a product of political and historical specificities ("Law is only crimes / Punished by places and by times"); and even as being "like love," incommensurable and inexplicable, something through which one knows oneself and something that inevitably is tied with loss ("Like love we often weep / Like love we seldom keep"). The venues in and around law explored in this book will demonstrate each of these levels: we will track legal realms as normative, disciplinary, affective, and political—a force and a promise, triumph, love, and loss.
However, this broad approach makes it difficult to demarcate law as a separate object of study: is it coterminous with the space of culture itself? Law has been theorized in the most expansive of terms as a basic "property of interaction" (Reisman 1999, 2), a diagnostic of the symbolic realm as "a distinctive manner of imagining the real" (Geertz 1983, 184), or a collective social conscience to Durkheim (Calavita 2001, 98). To some law and society scholars, law maps historically contingent practices: the "product of a specific moment in the history of a society"(Demian 2003, 99); "whatever people identify and treat through their social practices as 'law'" (Tamanaha 2000, 313); or a dynamic entity "constantly transformed given its mediation within a sociospatial context" (Blomley 1989, 516). In these "constitutive" perspectives (Blomley, Delaney, et al. 2001, xv), law is seen to affirm other cultural realms (Calavita 2001, 90). The conceptual problem here lies in the difficulty of delimitation: if we cannot find an "outside" to law, how do we draw the lines around it? In the following chapters, legal cultures do indeed help define kinship, class, marriage, governance, and politics. But we also want to ask of them: why are these conflicts expressed through law? What added value does law provide?
Unlike the work of scholars who have studied legal norms through everyday social moments (Reisman 1999), this book engages with law in its formal incarnations, as a form of state power. Auden vividly captures the regulatory force of law in formal settings:
Law, says the judge as he looks down his nose,
Speaking clearly and most severely,
Law is as I've told you before,
Law is as you know I suppose,
Law is but let me explain it once more,
Law is The Law.
Law operates with a sense of its own power ("Law is The Law"), authorizing the salience of precedent ("as I've told you before") and hegemonic consent ("as you know I suppose"). Legal personages are lofty and stern, enforcers of discipline. Derrida's riff on the terms law, justice, and rights ties them profoundly to force: "There are, to be sure, laws that are not enforced, but there is no law without enforceability, and no applicability or enforceability of the law without force, whether this force be direct or indirect, physical or symbolic, exterior or interior, brutal or subtly discursive and hermeneutic, coercive or regulative" (1992, 6).
In the modern nation-state, overt force seems to have been replaced by systems of governance, called "bureaucracy" and "legality" in Weber's account (2004, 133) and "governmentality" in Foucault's (1991). "Government" may be conflated with the notion of a watchful state "in the imagination and everyday practices of ordinary people" (Gupta 2012, 100, 43–44, parsing Abrams), but scholars like Gupta contend that governance is diffuse rather than centrally coordinated and works by evoking protection and regulation. This book takes a similar view—that an ethnographic approach to bureaucracy reveals the state to be "disaggregated" rather than "cohesive," to fail people in the contradictions and slippages between sectors and mechanisms (Gupta 2012, 33). The "state" and "law" in everyday contexts are experienced as "both distant and impersonal ideas as well as localized and personified institutions, ... violent and destructive as well as benevolent and productive" (Hansen and Stepputat 2001, 4–5). In this vein, legal authorities personify abstract and yet intimate encounters with a state that is simultaneously protective and disciplinary. However, their authority is demystified and challenged when legal arbitrariness becomes evident, showing that law is also fractured, "deconstitutive" (Calavita 2001, 96).
Such fractures show that the power of law is mediated by resistance, even if power adapts to forms of resistance (Foucault 1978; Abu-Lughod 1990). As the field of critical legal studies has explored (e.g., White 1990), marginal subjects' use of legal tools can destabilize hegemonies or fail in the face of resilient norms (Lazarus-Black and Hirsch 1999, 9). People often imagine that engaging the legal realm typifies resistance, that bringing "real grievances" to light and getting better "justice" is a form of agency. But if we think of law, like other cultural realms, as a performative field in which people strategically conform to normative expectations, using law is after all a (powerful) attempt to conform to its rules, seeking an optimal outcome. Resistance may be seen as a residue, a (potentially useful) tear in such performance against the force of culture/law (Hirsch 1998, drawing on Butler).
These strategic uses of law, whether failures or successes, are demonstrated in the following chapters in the "off-label" uses of law, such as in the use of rape law to secure marriage, or domestic violence criminal prosecutions to assist in civil alimony suits. We seek to understand what determines a choice to use formal law and study the ways people can bargain with formal law in informal venues of legal pluralism. Sometimes, legal cases are avoided at all costs so that questions of kinship or economics may be negotiated (Basu 1999), while elsewhere, people may turn to courts to pursue "justice" in both idealistic and situational ways (Merry 1986). Seeming manipulations to secure extralegal outcomes can thus be read as attempts to put law to complex use (Marshall and Barclay 2003). Legal realists contest this view of willy-nilly traffic, arguing that people "bargain in the shadow of the law," meaning formal law is a central determinant of decision making and not just one option (Jacob 1992, 566; Roberts 1994, 979). The counterargument to this view is that questions of social and economic capital are prime drivers of decisions, while law is but a "dim" shadow (Jacob 1992, 585, particularly relevant for divorce cases). Importantly, law may be either used or avoided when decisions are made, in the "deliberate choice to step outside the local culture, to translate the subject matter from the language of local customs into the language of the formal legal system" (Engel 1980, 430–31).
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Table of Contents
List of IllustrationsAcknowledgments1.
Introduction: Law, Marriage, and Feminist Reform2. Construction Zones: Marriage Law in Formation3. Beyond Equivalence: On Reading and Speaking Law4. Justice without Lawyers? Living the Family Court Experiment5.
In Sanity and in Wealth: Diagnosing Conjugality and Kinship6. Sexual Property: Rape and Marriage Conjoined7. Strategizing Spaces: Negotiating the Violence out of Domestic Violence Claims8. The Trouble Is Marriage: Conclusions and WorriesNotesReferences