Review Essay: Divorce, Democracy, and State Making

Reviewed in this essay:

Divorce and Democracy: A History of Personal law in Post-Independence India by Saumya Saxena (Cambridge: Cambridge University Press, 2022).

Marriage Unbound: State Law, Power and Inequality in Contemporary China by Ke Li (Stanford: Stanford University Press, 2022).

Reviewed by: Annelien Bouland, Carlos III University Madrid 

To study divorce is to learn about the political, legal, and cultural forces that shape our intimate lives. Our family relationships are formed by a multitude of structures and the politics of family is often fiercely contested. Divorce gives rise to heated political, social and religious debate.

This contribution reviews two recent monographs on the topic of divorce. The contexts of these works, India and China, display marked differences. Moreover, the authors take a decidedly different approach. In both studies, however, divorce provides a window to reflect on bigger questions of the nature of law and legal politics.

Divorce and Democracy

Saxena’s Divorce and Democracy provides a history of personal law in post-independence India. The book focuses on the politics of Hindu, Muslim and Christian personal law. In spite of what the title may suggest, Saxena does not restrict her enquiry to divorce per se. As a pars pro toto, divorce stands for family law more broadly. The title Divorce and Democracy, Saxena reveals in her introduction, is inspired by Joan Scott’s comparison of divorce and democracy. Both are tools that make it possible for the weakest to rebel against the strongest and to voice dissent. Clearly, democracy is also approached loosely. Saxena uses the term not to refer to a model of governance but rather, drawing on the work of Wolin, “a mode of being” (Saxena 2022, 22).

Chronicling the trajectories of personal laws in India, this work examines the process and politics of lawmaking in the realm of the family. Saxena looks at government documents, scrutinizes parliamentary debates, examines Supreme Court case law and chronicles the rise and development of social movements concerned with the question of personal law. She shows that the post-colonial state’s involvement with personal law entailed the ‘linking’ of law and religion. In the process, both law and religion expanded and became increasingly dynamic, or, to take up one of the two terms of the title: democratic. Saxena identifies a number of dominant questions in the post-colonial history of personal law. These comprise the way the constitution’s promise of secularism and of a uniform civil code is to be interpreted and the question of Muslim personal law and rights of women. Other prominent themes are the role of the Supreme Court and its relation to other branches of state and the rise of Hindu nationalism (1980s onward). Starting at independence, the book follows a chronological order and comprises an introduction, six chapters and a conclusion. Focusing on a distinct period, each chapter centers on one archive in particular. For instance, where chapter 1 examines Parliamentary debates, chapter 3 focuses on social movements.

Why may this historical examination of personal law in India be relevant for the legal anthropologist? It is clear that Saxena intended this book primarily at an audience interested in the history of Indian politics (at times the book is also somewhat difficult to access for the reader without previous knowledge about the Indian political context). And while Saxena complements existing anthropological literature on women and courts in India, her study primarily seeks to contribute an understanding of the political debate over family law. Be that as it may, Saxena’s study should interest any legal anthropologist working on family law in South Asia or on – the politics of – lawmaking broadly. Through a consideration of the politics of lawmaking, Saxena is able to contribute fresh and stimulating insights on what law and lawmaking is.

It is Saxena’s broad historical approach to the politics of lawmaking and her method of working with multiple archives that allows her to make this contribution to our understanding of law and lawmaking. Personal law in India, Saxena shows, is a dialogue between various sites – the state, from Parliament, from religion, custom and social movements. It arises from a multiplicity of locations, none of which is easily reduced to state/non-state binary. In India, Saxena shows, law is “a language of democratic conversation between realms of the state, between and among movements, as well as among individual actors at various sites of authority” (Saxena 2022, 5).

Clearly, the state’s role in this conversation is far from equivocal. In part, ‘statutory’ law is disparate and malleable because the state itself is composed of different, desegregated and shifting segments. Hence, Saxena argues against an understanding of law as first and foremost regulatory in nature. She shows that the codification of personal law allowed the Indian state a somewhat firmer grip on religion and, through religion, on the family. Yet she also shows that this drive toward codification provided citizens with new forms of agency to challenge religion and state through state law. Throughout the book, Saxena skillfully points at a crucial duality of family lawmaking in India: codification is often a precondition for subsequent challenge and differentiation. As the state attempted to bring the spheres of religion and the family under its control these spheres became increasingly ‘democratized’.

Beyond reflections on law and lawmaking, Saxena’s historical study of personal law also contributes to wider debates on secularism. Saxena provides insight into how the notion of secularism is used by different historical actors and how it has obtained different meanings through this use: more than occasionally, actors have opportunistically adapted the signification of secularism to serve their political goals. So much so, that the reader sees the term being used to describe state – religion relations ranging anywhere from strict separation to complete integration – that is, any type of relationship that is not an outright theocracy. A striking example is that of Hindu nationalists. They argue that secularism, like democracy, is at the heart of Hindu political ideology. Mobilizing the value of secularism, they call for a uniform civil code, depriving the Indian Muslim minority of religiously inspired law.

Saxena’s work also offers interesting comparative material on the history of the Indian women’s movement and its relationship with religion over the past fifty years. Saxena sets out how Hindu nationalist opportunistic pleas for uniformity encouraged a feminist activism that was increasingly suspicious of state intervention in Muslim personal law. However, she also shows that the activism of Muslim women should be traced back to before the rise of Hindu nationalism. Already in the 1970s did Muslim women contest the authority of male religious scholars and put forward alternative interpretations of Muslim law. Over time two broad positions developed within the women movement. Some activists stayed away from engaging the state and state courts and focused on reform from within. Others cautiously attempted to challenge religious patriarchy in state courts, strategically on relying religious and legal argumentation. Ultimately, Saxena argues, these different positions have allowed Muslim women to gain a firm say in the conversation over reform of Muslim personal law.

Together, this also stimulates further reflection on the recurring question of women, law, and state. Codification in India meant the writing of patriarchy into statute; yet it also successfully rendered the private public. Women are without a doubt constrained by the personal laws that regulate their intimate lives. At the same time, codification has meant that they have been able to put up successful challenges to the (religious) norms that govern their conjugal and family relations.

Marriage Unbound

While the relevance of Saxena’s work for legal anthropology may need to be spelled out, Ke Li’s study of migrant women’s legal mobilization to obtain dissolution of their marriages falls squarely within the remit of socio-legal studies. Ke Li combines ethnography with archival work to chronicle and analyze the experiences of these women and to set out the wider context of the Chinese legal system. Through a series of vignettes around which Li constructed her chapters, the reader acquaints her/themself with the stories of women seeking to divorce their husbands and with their experiences of inequality and injustice as they try and make claims in the state justice system. These women seek divorces from husbands who ‘stay behind’ in their rural conjugal household while the women migrate back and forth to urban areas to carry out low-skilled work under harsh conditions. They decide to leave their husbands because the latter fails to contribute to household finances or display violent or jealous behavior. In more than a few cases, they have struck up an extra-conjugal relationship with a man in the city who is financially better positioned and more understanding of their hardship. Through Li’s vignettes the reader encounters them at the moment they come home to the unnamed rural county in the province Sichuan, where Li conducted this research, and as they try to set in motion divorce proceedings. All end up being disappointed by a justice system in which legal workers turn down the poor and cash strapped, in which the frequent use of mediation plays out in favour of men, and in which judges adjudicate against divorce, pressure plaintiffs to withdraw petitions, or stall divorce by imposing cooling-off periods. 

These vignettes of disappointment and Li’s description of gender injustice will not come as much of a surprise to legal anthropologists interested in gender. In a number of other contexts scholars have documented how the law fails to deliver on promises of equality, or how courts enable only limited agency for women to change or end their marriage. Li adds to this literature by focusing on the specifics of the Chinese case. She draws on extensive ethnographic work and combines this  with archival research on the development of the legal system from the mid 20th century to today. Like scholars interested in women and law before her she shows that gendered inequalities can allow men to mobilize political contacts and gain the upper hand in mediation and that ideas about gender roles – in this case related to land ownership – pervade court decisions. In addition, Li demonstrates that inequality and gendered ideas about the roles of men and women already permeate the decisions legal aid workers make in the preparation of court cases. Moreover, she shows that gender inequalities influence the behavior of judges on a very concrete level: in fear of violent behavior against them judges stall cases to allow husbands to cool off. Finally, Li shows that judges pressure female plaintiffs – who greatly outnumber their male counterparts – to drop property and custody claims in order to maintain efficiency and make do with the little resources they dispose of. Here, making a claim is to pose a problem to the efficient running of the court.

Clearly, Li makes important contributions to the literature of socio-legal research on gender and family law, even if she does not explicitly build on this work. By contrast, Li explicitly sets out to contribute to literature on authoritarian legality and dispute resolution. Li is critical of the utilitarian and functionalist understandings of law in authoritarian contexts and sets out a clear alternative. This approach is informed by historical analysis and is attentive to culture and meaning. With time, Li shows, Chinese state actors “have unlearned certain ruling methodologies applied in the Maoist era; remodeled techniques and tactics inherited from the socialist period; and, what’s more, selectively appropriated governing experiences from liberal democracies” (Li 2022, 6). Li is moreover critical of the tendency in the study of dispute resolution to focus on individual behavior. Instead, she advances an approach sensitive to power and institutional practices. Drawing on the work of Lukes and Gaventa, Li specifies the workings of three distinct types of power in the courts she studied: ‘agenda-setting power’, ‘conscious-formation power’, and ‘formal decision-making power’. While I do not find Li’s work unique in its consideration of institutional practices and power – a number of court studies have taken a similar approach – these analytical categories are a very useful contribution to future work on disputing and legal institutions. 

One of the key strengths of Li’s monograph, however, is the combination of ethnographic work with historical and archival research. The archival data allow her to trace the development of different techniques and ideas of statecraft and show how these cultural resources come to be reclaimed, repackaged and recombined in the present to shape the legal infrastructure. In contrast to Saxena, Ke Li does not primarily focus on the politics of lawmaking in the realm of marriage and the family. Rather, she parses out the history of law and legal institutions. As I set out above, this helps Li get across an important theoretical point about law in authoritarian contexts. More important is that this combination of methods allows the reader to develop an understanding of the case of migrant women seeking divorce in rural Sichuan against the broader context of state and law in China. It helps gain insight in the policies and institutional constraints that shape the experiences of justice seekers in rural China. As becomes clear from Li’s ethnographic description it is not necessarily substantive law that shapes the experiences of the women she follows, but rather the architecture and functioning of the legal institutions in which they try to make their claims—a context which, as Li insists, can only be fully comprehended from a historical perspective. 

Ultimately, the greatest strength of Li’s work is the clarity and rigor of the analysis in combination with fluid and engaging ethnographic writing. Li is refreshingly explicit about the choices she makes about her writing and the experiential knowledge she tries to convey by using literary techniques borrowed from journalistic feature writing. She writes that “she has not got it all figured out” but hopes that “ethnographers raise more questions and put more thoughts into the craft of writing” (Li 2022, 18). I do not have definitive answers either. What I can say is that Li’s approach works. In fact, it works very well.

Divorce as a window unto law and the state

Soumaye Saxena and Ke Li’s monographs on divorce are markedly different. One tells of the experiences of women trying to obtain divorce. The other chronicles a history of political debate about the conditions and ways in which members of different religious communities can access divorce. In both the question of gender equality looms large. The couple and the family remain spaces of vast inequality and law often only offers minimal agency for women to alter their conditions. This relates to the patriarchal norms codified in law but also to difficulties in accessing legal institutions and the (gendered) power hierarchies that may pervade these institutions. Moreover, both show that the regulation of marriage and divorce can, in a given political context, become an important tool of state making. Depending on the setting such regulation will give rise to heated public debate.

Reading these monographs in parallel helps develop an appreciation for some of the methodological choices one can make in developing a study of divorce and the different insights these may yield. Both use some form of historical research. But where one focuses on the politics of lawmaking and highlights debate by bringing different archives into conversation, the other parses the history of the legal system and legal institutions. In combination with ethnography, each brings different depth or thickness to the description. 

Together, they help us see how the meaning and role of law is always multiple, even in places where law comes to be successfully wielded as a tool of governance and control. Even in China, the use of law is constrained by a disaggregated state and the state’s ability to exercise control through law is imperfect. Together they also converge in showing how, in a given context, the ideas and values (e.g. secularism, the importance of mediation) that structure law historically develop; how they are continuously repackaged and recombined, but also how they persist.










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