Law, Power and Culture

Supporting Change From Within

F. Knight

• Publisher: Palgrave Macmillan
• Year: 2014
• Print ISBN: 9780230304536
• eBook ISBN: 9781137315809
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

A fresh theory on how individuals respond to inequalities occurring within their own communities. This original and insightful study draws on empirical research on the Santal peopleof Asia, examining power relations within social fields, and the state, to reveal a typology of power practices, and applies these to forced marriage in the West.

1

Introduction

In 2000 the UK government set up a dedicated unit to assist women and men facing forced marriages in the UK and abroad. A world first, the Forced Marriage Unit (hereafter the Unit), as it later became known, sought to provide a way out for young South-Asian women and men who were facing a marriage arranged by their parents to which they did not consent. Due to early intervention by women’s groups, who warned against negotiating with families, assisting in these cases often took the form of extracting these men and women from their families and communities. But the wishes of the young person in each case were paramount and it soon became clear that the complex of emotional ties, feelings of filial piety and duty and interdependencies made such assistance a painful and sometimes unattractive prospect for the person concerned. The conceptual tools of ‘injustice’, ‘inequalities’, ‘rights’ and ‘victims’ used to defend government interventions often seemed too simplistic and failed to engage with the experiences of the young men and women themselves.

While race relations and feminist theorists have grappled with these dilemmas through a study of the ideological conflicts they represent, a deeper understanding of the social relationships at the base of the conflicts, put in their social and cultural contexts, can be a more fruitful way to identify prospective trajectories for policy. Studying social relations through the intersections of culture, power and law provides an illuminating framework to do this. The potential of this approach is demonstrated here through a case study of the Santal people in South Asia where the dynamics of power and freedom provide a fertile base for analysing the shortcomings of state assistance. The renegotiation of power relations within the Santal family and village, as well the use of state law in disputes with other Santal and non-Santalis, provides a rich resource on which to examine social relations as a means of constraint and a context for change. An investigation of the forms of power relations and the possibilities for renegotiating these in the South-Asian context are used here to suggest alternative ways in which the problem of ‘forced marriage’ can be understood in the UK.

Background

The research on which this book is based began over a decade ago. I was seconded to the British Foreign and Commonwealth Office to help set up a unit dedicated to developing government policy and to handling, forced marriage cases. The government’s interest in forced marriage had emerged from an increase in requests for assistance from young British South Asians who were being forced into a marriage abroad. These requests posed an awkward challenge for the state. There was a clear human rights imperative to assist the young women, and occasionally men, but also a recognition that any intervention would draw the state into scrutiny as it intervened in family relations within a cultural community with distinct social norms, about which it had very little institutional knowledge. In recognition of this, the first working paper produced by the government was drafted by a working group whose members were all of Asian and South-Asian heritage. The two members of the House of Lords who co-chaired the group recognized that, while there was a place for the state in assisting in forced marriage cases, the bigger challenge was to transform the social relations within the migrant communities that allowed them to occur. The working paper was addressed to British migrant communities in the first person plural and made it clear that ending forced marriage was not solely a government task but one for those communities primarily.

Their foresight was well founded and the limits of state assistance were immediately apparent in the Unit’s work. During the first year, our efforts to repatriate young men and women who contacted the Unit for help were repeatedly thwarted because many did not commit entirely to the process of rescue we offered. The assistance we gave was grafted onto a complex of pressures and commitments in the South-Asian family which these individuals were seeking to navigate. While these men and women valued state involvement, they were concerned about the impact this would have on family relations, and how their needs would be met if they separated from their families.

At the end of the first year we commissioned research into community perceptions of forced marriage (Samad and Eade, 2001), which examined the complex emotions surrounding the South-Asian marriage process. That research revealed a rich and varied experience of pressure tied in with sentiments of filial love. Participants in the research, citing poor race relations and a rise in Islamaphobia in Britain post-9/11, also raised serious suspicions about the state’s interest in intervening in forced marriage cases. This suggested a need for greater dialogue with, and within, communities to shift practices in social relations internally and improve trust in state processes. Instead, the state began to exclude migrant communities from its work in this area and replaced dialogue with regulation and punishment. (I have written about this elsewhere, see Shariff, 2012.)

I left the Foreign Office in 2002 to begin my doctoral fieldwork on the Santal in South Asia but these dilemmas preoccupied me and fed into my doctoral work. My doctorate began as an examination of how individuals within a minority community use law to help themselves. My work with the Foreign Office had taught me to challenge any presumption that state law held the solution, or would be trusted to deliver a desired outcome. I began to investigate the ways in which those disadvantaged within Santal society sought to help themselves both through Santal institutions and through institutions of the state. The research again revealed a complex picture of negotiations. The state was part of the picture but recourse to the state was patchy and usually non-committal.

Researchers in the field of legal anthropology, and particularly legal pluralism, had been considering these same challenges since the 1970s. In a critical paper in 1973, Sally Falk Moore warned that to make real lasting social change state policy needed to engage with the multiple overlapping normative orders in societies’ many social fields, and the social relationships through which they are negotiated. She noted that the insistence that the state had the solution and that individuals within these social fields, with some prompting, would voluntarily avail themselves of state assistance, failed to acknowledge that the normative order of the social field, and the power relations they encompassed, attracted a great deal of authority over the individual. In the decades since then legal anthropologists have shown that a preliminary investigation into the normative aspects of a social field reveals a world of complex, sometimes contradictory, but, importantly, negotiated relationships into which state law seeks to intervene.

The Santal provided an interesting case study for examining this phenomenon. Having a rich history of cultural distinctiveness and turbulent migration, they are now settled largely in the eastern states of India and north-west of Bangladesh. Despite being diasporic they manage to maintain a highly prized uniqueness, and each Santal village functions as a microcosm of the Santal people, independent but connected to its others. A system of village officers facilitates the maintenance of Santal customs and rituals, but the people are bound together through mutuality of support, shared language, a shared history and origin myth and a sense of belonging. This does not detract from their identity as Bangladeshis and Indians, and they can and do reach out to the state. But it is at the level of social relations in the village that each individual seeks primarily to have their needs met.

Theoretical contributions

Perhaps the principle concept on which this book draws is the concept of power. It seeks to answer the question: ‘How do power relations condition but also facilitate social change within cultural minorities?’ In doing so, it re-evaluates agency in the cultural context, but it also seeks to help us understand better how power directs the individual to fulfil their needs within existing power relations. This is particularly revealing for policy because it demonstrates why the conventional approach to assisting minorities within minorities, from the outside, is deeply flawed. Through a tripartite theory of power it challenges the assumption that changes in social relations within cultural communities must involve recourse to a legal system outside the minority community, or other norms originating outwith the community. It also challenges the assumption, associated with this, that resistance and agency are only valuable when they promote standards set by those outside cultural minorities.

Through a study of the process through which individuals seek to have their needs met within power relations in two diverse settings (a tribal minority in South Asia and immigrant communities in Britain), it demonstrates that, although recourse to external normative orders such as the state does occur, internal adjustments and renegotiations are prevalent. The complexity of this process and the problems of resisting through external forums such as the state demand a more detailed understanding of how the individual experiences power. While theory on micro-power assists with this, it treats social settings as isolated and micro-power as singular in its effect. This book demonstrates, however, that power practices are heterogeneous and shifting, and their exposure to alternative normative social fields leaves them open to contestation. The book identifies three types of power practice – relations of force, dependence and nature – and examines how individuals respond to these and the potential for social change in plural socio-legal contexts. Social change in this context may not mean immediate shifts in social relations that meet the demands of equality and human rights standards, but reflects a gradual change in how practices are understood.

While much of the book draws on the concept of power and its corollary, resistance, my findings make a critical departure from the literature in this area. At the heart of this paradigm is the idea that power circulates through relationships, creating positive as well as negative effects and is always subject to change. This dynamic nature of power and the seed of change within it is central to my argument. However, the term resistance has created a false ideal of the process through which change occurs and has been heavily critiqued. While resistance suggests a ‘fighting back’, anti-power, in fact much of the negotiating I have examined takes place within a context of acceptance.

Rather than anti-power, I see negotiations in the context of power relations as part of an acceptance of the power relation. The individual’s drive for survival, biological but also social, means that power relations evolve through pressures that reflect individual needs but are themselves fundamentally accepted and invested in. This is not to say that there is never resistance, anti-power. But this takes place in the context of certain moments in the relationship only, what I call relations of force. In fact, people invest in relationships and for the most part attempt to realize their needs within them rather than outside them.

This book therefore distinguishes ‘resistance’, as a form of anti-power that challenges the relationship from the outside, from ‘renegotiation’, which is performed within power relations. External resistance relates to circumstances in which the individual takes recourse to a forum outside the power relation, an action that is against and potentially may end the power relationship or allow the individual to exit from it. I distinguish this from internal renegotiations, which form part of the dynamic process of change within power relations. This allows us to think differently about social change. In doing so, I challenge empirical researchers to overcome the tendency to treat internal renegotiations as coincidental to power and not worthy of analysis. This tendency has occurred as a result of the critical response to literature on ‘everyday resistance’ (see Abu-Lughod, 1990). In her paper, ‘The Romance of Resistance’, Lila Abu Lughod urges ethnographers to use resistance as a diagnostic of power. Indeed, although her work intends to thwart overzealous attempts to celebrate resistance, this book is evidence that the study of internal renegotiation and external resistance provides both a richer picture of power and greater appreciation of the importance of individual negotiations for understanding the direction of change.

Uniquely, this book draws on empirical research amongst an understudied chthonic people, the Santal, in India and Bangladesh. It examines power relations within the normative social fields of the Santal family and village as well as in the state, where they occupy a minority status, and identifies different ways in which renegotiations are attempted, trajectories of negotiation, across these socio-legal fields. These trajectories of negotiation are used to examine power. Correlations between these and different types of power practice are explored. These findings are then applied to the practice of forced marriage, by Pakistani and Sylheti Bangladeshis primarily, within Britain. Despite the very different context, trajectories of negotiation and power practices prevalent in Santal society are also identifiable within these communities. The practice of forced marriage, or force in the context of arranged marriages, provides a topical case study in which to test out the correlation between these power practices and trajectories of negotiation. Internal renegotiations and external resistance through recourse to the British state are both present, but again the empirical data reveals that power directs renegotiation inwards.

Theoretical departures

As an empirical study this book is necessarily light on theory. Nevertheless, analysis of data takes place within the context of theoretical discourse. I look at the main theoretical concepts that underpin this book in Chapter 2. However, my subject touches on some important themes that I have not been able to elaborate on. Below I attempt to explain how and why I have avoided some of the more obvious themes as a basis for this study.

Minority rights: the group and its individuals

Minority rights were an early preoccupation for me and when I first conceptualized this research my interest was in understanding why certain minorities were able to exert their interests more effectively than others. With a background in international human rights law, my attention was drawn to the then ongoing debates on the Draft UN Declaration on the Rights of Indigenous Peoples (hereafter the Draft Declaration). I attended the annual session of the UN Human Rights Commission in 1997 when the Draft Declaration was in its third year of consideration before the commission. The governments that had accepted to negotiate on it were seeking to soften its language to avoid costly obligations towards well-organized indigenous and tribal groups. The Draft Declaration’s aim of ‘self-determination of indigenous people’ was particularly contentious. It was seen by states as providing an opportunity for indigenous peoples to claim autonomy from the state. The declaration had been drafted by representatives of indigenous people and was unquestioned as an authentic expression of their wishes and concerns. In fact, it reflected the agenda of organizations predominantly from Latin America, Canada and Australia, where indigenous rights had a particular history. Their demands for rights over the lands and resources of their ancestors reflected their own history of loss, characterized by colonization, brutal (in some cases genocidal) assimilation and domination by European migrants.

Tribal and chthonic peoples from the two largest tribal belts in the world in Africa and Asia had little representation¹ and it seemed to me that the Draft Declaration did little to address the different priorities of indigenous people in these continents. Furthermore, the inclusion of self-determination in Article 1 of the Draft Declaration provided an opportunity for some states in those continents to exclude themselves from its provisions as they claimed that the Draft Declaration applied to colonized peoples who had never achieved independence. Bangladesh was amongst the countries that stated that the victory of self-determination from the British in 1947 meant that Bengalis, as indigenous peoples of that territory, had already achieved their independence.²

The exclusion of chthonic ethnic peoples from the debate was not only a problem of representation but was symptomatic of their underprivileged position in the international tribal rights movement and in their own states. I felt that there was a need to examine the question of their rights in its socio-political as well as legal context, to understand the forces behind their exclusion. My enquiries, which began as an investigation of the socio-political dynamics of group exclusion, soon turned to an examination of exclusion within those minority communities themselves. Minority rights literature has historically challenged the centrality of the individual and the state in human rights discourse by forefronting group rights (Shachar, 2001). Indigenous peoples’ rights provisions in international law seek the protection of individuals from state interference, but only as members of groups: their ability, collectively, to enjoy the territories, natural resources and way of life of their ancestors. My investigation therefore took me away from a minority rights/indigenous rights focus. In writing about the individual within the group I found the work of political theorists provided greater scope for investigating the individual within the group and my focus changed from rights to the renegotiation of power.

Writing culture: intersections and subjectivity

My research on the Santal focuses on three normative social fields: the family, the village and the state. My initial concern when starting the research was that I uncover the forces that sustain inequality, from the experiences of the Santal people, in each of these normative social fields. I was interested in inequality as it occurs at the level of the state, but my preoccupation with uncovering the forces at work on the individual led me to look at how the village and family work also as sites of inequality. Examining the social field of the Santal family and village inevitably involved investigating material on Santal culture. In 1871 Reverend Lars Olsen Skrefsrud, a Norwegian missionary of the Lutheran Church who lived and worked amongst the Santal from 1867 until his death in 1907, took down a record of Santal customs from a Santal man called Kolean whom he described as having the most comprehensive appreciation of S...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Map
• Acknowledgments
• 1 Introduction
• 2 Power, Resistance and Legal Pluralism: Processes of Freedom and Constraint
• 3 The Santal: Processes of Subordination in the State
• 4 The Primary Construction of Inequality: Kinship, Law and Ritual in the Santal Family and Village
• 5 Resisting from Without: The Illusive Promise of the Alternative Legal Order
• 6 The Realization of Needs from Within: The Power Product and Non-compliance
• 7 A Tripartite Theory: Power Practices and Embedded Change
• 8 Forced Marriage: Engaging with Renegotiations Within
• 9 Conclusion
• Glossary of Terms and Key Authors
• Bibliography
• Index