Minority Women, Family Law and the State

A Summary of a Workshop at NAWL’s 14th Biennial Conference

Women belonging to cultural minorities sometimes seek state support regarding inequalities they experience in their communities. Such inequalities, justified in the name of “culture”, are often especially evident in the family law arena, and in particular in marriage and divorce laws. Marriage and divorce laws deal with personal matters, with questions such as who may marry whom and who may be considered a member of a given group. As such, these laws are important for the minority community’s self-determination and are seen as crucial to its survival as a distinct cultural entity. At the same time, marriage and divorce laws in many cultures disadvantage women, since they function as major tools for controlling women’s behaviour.

This workshop examined the ways in which various democratic states respond to minority women’s legal challenges of marriage and divorce laws of their communities, by analyzing three legal cases.

The first two cases are an American Supreme Court decision regarding Aboriginal women who marry outside their communities, and an Indian Supreme Court decision and subsequent legislation regarding Muslim women’s rights upon divorce.

In the American case, the court decided not to intervene in a discriminatory marriage law of an Aboriginal community, stating that such an intervention will endanger the cultural continuity of the community. I argued that in this decision, the court ignored the strong influence of the American state on the development of that law. Indeed, it ignored the “external intervention” that had already reshaped the minority culture.

In the Indian case, both the court and the legislature took into account a particular version of Muslim divorce law, offered by male spokesmen of the Muslim community, as representing the “true” Muslim tradition, and ignored the alternative versions suggested by Muslim women.

By assuming a clear dichotomy between state “intervention” and “non-intervention” into minority cultures, the legal systems in both cases employed a simplistic and essentialist view of “culture”. They mistakenly regarded the cultures of the relevant minority communities as something unchanging and homogeneous. A more sensitive approach, I argued, should acknowledge the dynamic character of cultures.

Culture is not fixed but a process. Cultural norms constantly develop and reshape as a result of various factors, including external influences. It should also be recognized that culture is a rich resource that contains many alternative, sometimes contradictory components, and may offer a variety of readings to choose from. In many cases, it is inaccurate to present a single norm or practice as representing the “real” essence of a given culture. The selective use of specific cultural components, and not others, by some members of a group, may serve the interests of dominant sectors of a given community and may silence alternative readings of cultural norms. This is highly relevant regarding cultural norms that address women’s behaviour, since women in many cultures are excluded from the process of interpretation of traditional teachings.

The question of how a legal system should address both the dynamic character of cultures and the diversity of opinions within cultures is very difficult and challenging.

The third case involves South African post-apartheid legislation regarding the recognition of African customary marriages. I discussed the approach of the South African Law Commission during the legislative process, an approach that addressed both the extent of Western intervention into the development of African customary law, and the diversity of views within African communities. I argued that the law that had resulted from this process provides at least the genesis of a more productive approach to the challenge of traditional family laws discriminating against women.

Merav Shmueli is a S.J.D candidate at the Faculty of Law at the University of Toronto.