Community, Family, and Law(s) in the Global South and its Diasporas
Fri, 5/31: 12:45 PM - 2:30 PM
Friday Session 3
Friday Session 3
Room: Regency B
This panel explores the sociolegal construction of family and community relationships in the Global South and its diasporas. Using ethnographic and qualitative methods, the papers examine the different ways laypeople use state, religious, and customary law to define, contest, and give meaning to their relations and obligations. With research on urban and rural China, Kenya, South Africa, and Muslim communities in the U.S., the papers examine many types of legal action: from family struggles over marriage and divorce, to everyday use of religious law, to organized political action. The papers engage core sociolegal questions about legal pluralism, legal consciousness, and legal mobilization, highlighting the importance of Global South and diasporic research for understanding the daily life of law, in all its multiple forms.
ChairMichael Yarbrough, John Jay College of Criminal Justice (CUNY) - Contact Me
DiscussantSally Engle Merry, New York University - Contact Me
03: Ethnography, Law & Society
Legal Culture, Legal Consciousness, Comparative Legal Cultures
This paper examines the historical roots of contemporary struggles over marriage and marital status in South Africa. Having extended state recognition to marriages under indigenous systems of African law in 2001, and to same-sex marriages in 2006, South Africa is the world's only jurisdiction that has recently opened its marriage laws to multiple, previously excluded forms of marriage. Drawing on many years of comparative ethnographic research among South Africans affected by these two laws, the broader project from which this paper is drawn explores how the official law of marital status relates to everyday practice in the wake of these reforms. In this paper, I focus on concrete family struggles over the recognition of particular marriages. Family struggles over same-sex marriages are increasingly frequent and visible, highlighting the impact of the same-sex marriage law expansion and of the rise of LGBTQ identification more generally. At the same time, in black South African communities the content of these struggles shares much in common with struggles around different-sex marriage. In particular, struggles over same- and different-sex marriage both tend to focus on the shape and power of gender roles in a context of economic strife and complex post-colonial longings. I argue that these commonalities reflect both the shared present and the shared past of black South African kinship under pre-colonial, colonial, and formally post-colonial rule.
PresenterMichael Yarbrough, John Jay College of Criminal Justice (CUNY) - Contact Me
Drawing on fieldwork and interviews with Muslims across California, and scholarship on legal consciousness and lived religion, this paper uncovers the rich pluralism of shari'a (commonly translated as Islamic law) in America. In the context of a dominant discourse of political hostility toward shari'a and legal and religious pluralism, a separate discourse is emerging and flourishing in which shari'a is instead a resource for Muslims facing discrimination. Muslims are creating knowledge of shari'a that helps Muslims organize daily life activities, understand the functions of law, and commit to principles of justice and dignity. For socio-legal researchers, this study of shari'a in America underscores the importance of linking religion, race, and law in studies of social marginalization and legal mobilization.
PresenterMark Fathi Massoud, University of California, Santa Cruz - Contact Me
Co-PresenterKathleen Moore, University of California, Santa Barbara - Contact Me
Using ethnographic and archival data collected in rural China, this study addresses the question of how and why divorce lawsuits give rise to stark gender gaps in litigation outcomes. To answer the question, I have shifted away from the conventional approach socio-legal scholars have long been accustomed to that treats disputation as corollaries of individual actions or inaction (e.g., naming, blaming, and claiming; or avoiding conflicts, lumping grievances, and opting out rights claims). Rather on focusing on individuals' behavior in the process of disputing, this study brings to the fore institutional practices involved in divorce litigation-especially those configured by prevailing power dynamics within and surrounding the civil justice system. More specifically, it unpacks the interplay of three types of power: the state's capacity in shaping what women can envision as rights-holders and what they can conceivably demand through legal action; the legal profession's clout in delimiting the scope of the courts' interventions into marital disputes; and judges' authorities in determining who gets what upon divorce. By illustrating how the three types of power relations interlock, I show that the legal profession, the court system, and policymakers at multiple levels have in effect narrowed or even foreclosed the paths for women to mobilize state law to contest their rights, leading to significant gender gaps in litigation outcomes. Ultimately, by developing a power-centered analytical framework, this study seeks to shift scholarly attention from the analysis of access to justice to a closer examination of the accessibility and penetrability of the official justice system in China and beyond.
PresenterKe Li, John Jay College of Criminal Justice - Contact Me
Since passage of a new constitution in 2010, efforts to reform and transform Kenya's judicial system have had multiple effects on family roles and structure, as well as on institutions central to its formation (e.g., marriage and divorce). Among the reforms are the passage of new laws and the creation of new rules for courts and informal disputing options that handle family matters. This paper explores the assumptions about families, gender, and sexuality written into laws and rules for both civil and Muslim courts in Kenya in the post-2010 constitution period. Attention is directed to the interconnections and contradictions between law reform and the diverse state and civil society projects aimed at shaping "Kenyan" families. The analysis reveals effects of law reform that reflect, yet often undermine, the "unity in diversity" embraced in Kenya's 2010 constitution and promoted by many civil society groups. Of particular note are struggles over the novel process of developing written rules for Kenya's Muslim courts.
PresenterSusan Hirsch, George Mason University - Contact Me
This paper is a study of parental and conjugal rights mobilization in a non-democratic, non-Western legal context. Through an in-depth, qualitative research of two national LGBTQ organizations in China, I examine how two frameworks of family rights operate on the ground, where the state is using laws to simultaneously illegalize civil society activities and illegitimatize queer lives. Under the framework of family acceptance, PFLAG-China strategizes parents' authority over family issues in the Chinese tradition to subvert this tradition. In 2017, for example, they organized a group of heterosexual parents to advertise for their single LGBTQ adult children in a matchmaking market in Shanghai People's Park, where Chinese parents gather weekly to arrange dates for their straight, single children. Different from PFLAG-China, Common Language uses a "combating family violence" framework to advocate for state recognition of LGBTQ families, especially for the expansion of legal protection to LGBTQ people in the Anti-Domestic Violence Law and the Civil Code. They provide legal aid, train LGBTQ friendly lawyers, and lobby the legislators for the advancement of LGBTQ people's equal accesses to legal justice. My findings suggest that both frameworks effectively challenge the Chinese state's conservative family-state vision and maintain the legality of each organization's national activities but they produce different consequences in locating LGBTQ people in relation to law.