by Gopika Solanki. New York: Cambridge University Press, 2011. 400 pp. Hardback. $99. ISBN: 9781107006102.
Reviewed by Mengia Hong Tschalaer, Department of Anthropology. University of Zurich.
In Adjudication in Religious Family Laws, the feminist and political scientist Gopika Solanki offers a sensitive analysis of the highly heterogeneous, fragmented and contested legal landscape constituting postcolonial India’s religious family-law system. Solanki’s book is based on rich empirical material gathered from within Mumbai’s formal and informal institutions of law. The study offers compelling new insights into the ways in which state-society interactions create spaces for legal actors from each side to “rework cultural meanings of the family, gender relations in the family, and religious membership” (p.30). It is these interactions, Solanki compellingly argues, that create the possibility for gender-justice in postcolonial India. Solanki, therefore, describes gender equality as “negotiated, uneven and as a constantly ongoing process” (p.332). With extreme attentiveness to the prevalent legal reality, she illustrates the complex and sometimes paradoxical ways in which Hindu and Muslim women work toward gender justice in “mixed adjudicative sites” (p.60). Solanki’s study, therefore, marks a departure from the cultural relativism and the universalism approaches that are prevalent in the legal and feminist scholarship concerned with this region, providing a more nuanced understanding of the way religious family laws are adjudicated and negotiated on the ground.
Adjudication in Religious Family Laws opens with a discussion of India’s unique “shared adjudication model”. This model delineates the ways in which the postcolonial Indian state shares its adjudicative power in the area of religious family laws with a range of societal actors and organizations (p.41). Like most postcolonial states, the Indian state acknowledges de facto the legal authority of non-state bodies, from caste and community mosque councils to neighborhood associations and women’s organizations. Such legal heterogeneity is susceptible, furthermore, to internal power struggles over ‘what’ constitutes law and ‘who’ may participate in its making and in its adjudication. Legal, political and feminist scholarship concerning legal pluralism in postcolonial India tend to posit non-state law and accompanying social forums as diametrically opposed to the modern state-legal system and to liberal-legal ideology in general. From such a perspective, informal institutions and informal laws are disparaged as illiberal obstacles to justice. Solanki’s book comprises an important intervention in such statist debates. Her analysis of the heterogeneous legal landscape in India transcends state vs. society and liberal vs. illiberal dichotomies. It highlights the [*416] opportunities that such heterogeneity provides for local communities and civil actors to negotiate and frame justice within the penumbra of the state. Solanki’s analysis, therefore, opens up a unique analytical space wherein law is conceptualized as fragmented rather than unitary and social normative orders are seen to be overlapping rather than distinct.
Taking India’s shared adjudication model as a premise, Solanki’s study focuses on the processes by which the socio-legal actors and institutions operating within the heterogeneous legal landscape ‘do’ and ‘un-do’ the boundaries of state and non-state legal systems and discourse. The author successfully demonstrates that the processes of adjudication set in motion by the shared adjudication model “draw out interactions, negotiations, and discussions between and among Hindus, Muslims, civil society, and the state over the meaning of the family, gender roles, and the meaning of religious membership” (p.38). Such activity, Solanki contends, creates the paradoxical movement toward both centralization and decentralization of laws (p.60). On the one hand, the state controls and defines the institution of marriage and divorce, through the regulation of personal laws within the state-legal system as well as within societal legal forums. On the other hand, the state allows for non-state law to cross into its legal system, fragmenting state law and dispersing its judicial authority. Moreover, the state’s patriarchal legal discourse is destabilized in a variety of societal sites, all within its penumbra. In the empirically rich Chapters 3, 4 and 5, Solanki clearly illustrates that the paradoxical dynamic of centralization and decentralization of law ‒ a characteristic of the shared adjudication model – in fact “allows spaces to balance cultural accommodation and gender equality” (p.90).
Specifically, Chapter 3 demonstrates how women increase their bargaining power in the state-run Family Court by combining state legalities with societal legal discourse, practices and morals. Though women seeking justice here are subject to a patriarchal interpretation of the law that emphasizes women’s submissiveness and propriety, Solanki reveals the creative ways by which litigants and legal professionals may stretch legal and moral boundaries in order to curb male privilege within marriage and divorce. In Chapter 4 and 5, Solanki analyzes the adjudication processes amongst Hindus and Muslims within Mumbai’s internally heterogeneous caste and religious organizations, doorstep courts, social and family networks, political parties, NGOs and women’s groups. In both Chapters, she lays bare the processes by which women litigants and women’s groups challenge, to differing extents, the state’s patriarchal concepts of monogamy, heterosexuality and gender-based division of labor; processes that involve selectively appropriating women-friendly caste and religious laws, morals and practices. Solanki establishes that, within this context, Hindu and Muslim law on the ground is an “amalgamation of local, customary, religious, state and international laws and local customs” (p.39). As a result, the state’s notion of the Hindu and Muslim family is constantly fragmented and pluralized within the legal reality. [*417]
Solanki’s focus on the micropolitics of adjudication brings to light the means by which women litigants, as law-navigating subjects (p.47), combine formal and informal legalities and institutions so as to maximize their chances for justice. With great sensitivity to the rich ethnographic material at hand, Solanki weaves a complex pattern of processes of adjudication on the ground. These are structured by women’s individual biographies, their creative and innovative use of formal and societal legalities and their ability to frame and represent different versions of religion and conjugal life. Her analysis illuminates the ways in which Hindu and Muslim women challenge the patriarchal legal ideology of the state. To effect such challenge, these women actively select and reference caste and religious laws that are less controlling of women’s sexuality or that provide women with more economic security and protection from unilateral divorce. These contestations around the meaning of the family, gender relations and religious membership, according to Solanki, evince the fluidity of those very concepts on the ground.
Solanki disputes in a unique way the widely-accepted idea that patriarchal notions of the family and gender are rooted in a fixed and hence unchangeable religious ideology. By examining the working of the law on the ground within a multitude of legal settings, Solanki provides an interesting glimpse into the ways individuals embroiled in the process of adjudication juggle ideas of gender relations and religious identity. The case studies presented in Solanki’s writing, in fact, reveal that the notion of the conjugal relationship, under Hindu and Islamic laws, is contested and negotiated within the processes of adjudication by litigants, legal professionals, civic authority (such as women’s groups), civil society organizations and social movements. Thereby, state and non-state actors actively engage in constructing and articulating plural notions of the Hindu and Muslim family on the ground, notions that challenge, to differing extents, patriarchal state concepts of gender relations within the family. Thus, Solanki poignantly apprehends the effectiveness of the shared adjudication model in achieving gender just reform; positing this as contained in the efficacy of legal professionals, litigants, civil society organizations and social movements to destabilize, negotiate and re-articulate notions of the family, gender and religion, creating of a women-friendly legal environment on the ground.
Adjudication in Religious Family Laws, however, is not entirely immune to criticism. The rich first-person data derived from the primary research; specifically, from the 120 interviews conducted in the formal courts and the construction of 154 cases in informal forums, each with a large set of respondents, is often hidden in the footnotes. Hence, such data might appear to be utilized in order to complement rather than to guide Solanki’s analysis. The absence of reference to these voices in the main body of the text, especially in the highly empirical Chapters 3, 4 and 5, is most strongly felt; the Chapters occasionally suffer from a lack of individual insight into firsthand experiences with law on the ground. As a result, Solanki’s conclusions risk the appearance of [*418] neglectfulness in face of some of the fine nuances within the legal reality of Mumbai’s family law system – nuances that could successfully be rendered through accounts of the legal epistemologies of first-hand actors.
Adjudication in Religious Family Laws takes its rightful place amongst cultural pluralist and cosmopolitan approaches to law (e.g. Merry 2006, Wilson 2006, Santos 2006) – approaches that similarly stress the complexity and the unevenness of lawmaking and adjudication on the ground. The writing is of great importance, therefore, to legal, political, feminist and anthropological scholarship that engages critically with questions surrounding legal reform in the context of a polycentric legal sphere. Solanki’s book reminds us that in such a sphere, the state is just one of many sites where gender reforms are initiated and realized (p.328). Such insight holds great relevance when one considers that gender equality is negotiated within a multiplicity of adjudicative sites, not only in India but also elsewhere in postcolonial states. To this extent, the book is highly useful for policy-makers, legal advocates and human and women’s rights groups. The fact that legal pluralism in the area of family law will not soon vanish, as predicted by modernization theorists, but instead is on the rise worldwide poses a pressing challenge for the prevalent approaches of human and women’s rights activists, practitioners and policy-makers. The arguments made and the insights gained in Adjudication in Religious Family Laws may, therefore, serve as a perspicacious starting point for realizing women’s rights and gender-justice on a more general level and within the real context of shared legal authority between the state and various societal bodies and organizations. In providing a nuanced image of the processes of legal-gender reform on the ground, Solanki’s book constitutes a potential trove for both law and social science graduate students dedicated to critically re-thinking the purchase of liberal notions of “justice” and “gender equality” in legal reality.
Merry, Sally Engle. 2006. “Transnational Human Rights and Local Activism: Mapping the Middle.” American Anthropologist, 108 (1): 38–51.
Sousa Santos, Boaventura de. 2006. “The Heterogenous State and Legal Pluralism in Mozambique.” Law and Society Review, 40 (1): 39–75.
Wilson, Richard Ashby. 2006. “Afterword to: ‘Anthropology and Human Rights in a New Key’: The Social Life of Human Rights.” American Anthropologist, 108 (1): 77–83.
Copyright 2013 by the author, Mengia Hong Tschalaer.