Hitoho Sumi
Challenging law and the need to go beyond legal ambit
A day ago on my journey way back home an elderly indian man and a woman were engaged in a passionate discussion on how ‘younger generation girls’ have ‘lost’ their place by working in offices and taking up jobs in other various sectors. They went on discussing how women should not be allowed to work, how women should know their place in society i.e. looking after children, her husband and in-laws and so on. I felt like shouting and slapping them out of their phallocentric narrow-mindedness (which i didn’t), i immersed myself in reading saying to myself, “at least we Nagas are far better than them (indians)”. After reaching home and sleeping like a log i woke up happily and picked up a paper, to my utter disgust i was welcomed with the rhetoric of why “women reservation is not liable” (reported on dailies dated 19/04/2012) because it is against the culture and tradition of Nagas(?) Because it is against ‘our’ system(?). The irony that ‘we are doing everything we can… we respect women… we give equal opportunities…’ but ‘sharing power is not liable… it is against our tradition and so on’ is quite nauseating. It is high time we Nagas shed our ‘patriarchal benevolent attitude’ and reconsider our stand on women issues especially in terms of power sharing. Because what women need is not pseudo-‘we respect you’ but genuine power sharing particularly in the arena of politics, law, decision making, policy formulation, implementation and monitoring of programmes. Having said this i take the liberty to comment on why Naga feminist should look beyond the legal ambit in addressing women’s issues such as reservation for women.
In a patriarchal society gender relations are systematically produced and subsequently reproduces gendered power imbalance which, further systematically, privileges men as a group in relation to women as a group. Thereby it constitutes a background condition of domination based on assumptions of superiority, whether or not individual men consciously exercise their power or not. In the light of increasing exploitation, and many other forms of torture, oppression etc., the need to engage, critically, with the notion of equality and deconstructing various popular explanation and understanding of women, women’s issues, and women vis-à-vis men, then becomes very crucial. Identifying and demystifying the given truth in a patriarchal society is a necessary step for understanding and engaging with issues that concern women. When I state patriarchy as a structure of domination, it also embraces the notion that the structure of society has engraved patriarchy and women sub-ordination in all its facets, that the state and society are both instrumental in maintaining the conditions of domination against women.
It is not surprising then to find that in all aspect of life there is an overwhelming presence of phallocentric attitude which disqualifies women’s issue and their perspective. Discrimination against women has been a historical reality in all the societies and Naga society is no exception. What is more tragic is that many discriminatory practices, attitudes and opinions against women are socially, culturally and traditionally accepted as norms and thereby derive their legitimacy through the behaviours and attitudes of individuals in every generation. True, that deconstruction and a constant challenging to such dominant notions provides a negotiating space for discourses of equality to thrive, but one must constantly remind oneself of the fact that such spaces are ‘allowed’ spaces within the larger power structure of patriarchy, i.e., patriarchy as a dominant structure can afford the subversion that feminism provides and on many occasions a closer observation would reveal how historically subversion has aided the process of consolidation of an already dominant structure by providing a channel of ventilation for the oppressed sections.
Law, in obvious or oblique ways, hinders both legal and illegal social change efforts. As an old anarchist slogan put it, if voting could change the system, it would be illegal. Even for activists or feminists who fare little better in court, given litigation delays, costs, procedural pitfalls, and judges' backgrounds, radicals are rarely successful. The doctrines of standing, governmental immunity, and political questions, the substance of conservative legal principles, and the likelihood of reversal upon appeal limit how much even a sympathetic judge can allow activists or feminists to win. Since law is created by the powerful rather than the weak, dissident concerns are often simply dismissed as frivolous.
Thus, conforming to the assumption of law’s legitimacy, at best, may be preventing changes that could enhance the well-being of the population, and at worst, it may be silently endorsing unjust social practices, reinstating and superimposing dominant values through the façade of value-free scientific statements that provide an asocial image of the human being, essentially autonomous and considerably distant from socio-historical circumstances. This leads people to undermine the impact of adverse social realities on their lives, thereby reducing the likelihood of engaging in activities in defiance of the status quo of prevailing social order, and forwarding, almost as if in ignorance, the agenda of the law that serves to maintain the same. Law with its dispassion for substance, and preoccupation with procedures, therefore, renders itself meaningless due to its potential for deliverance of virtual justice alone.
Reform is seductive because it assumes that law can be transformed so significantly that it will operate at a higher principled level. This is doubtful, though, because the reasons for which law exists conflict with principled levels of reasoning and ethics. Law exists to maintain rather than change the status quo, to protect some at the expense of others, to control rather than unfetter. Furthermore, even if reform efforts may succeed, it would be so only at the cost of unpredicted ‘side-effects’ that complicate other problems or lead to long-term failure. A radical structural change towards equity is a near impossibility under the narrow scope of law which defines people and spaces on the basis of legitimate powers, roles, and functions. A systems perspective must acknowledge that social problems are interconnected rather than isolated, and change in the legitimacy or access to power of one group of people or structures, would inevitably pave way to change in others, completely infuriating the ones who lose what they once had for the once who never had, but will now do.
I believe that we can safely argue, in view of the above arguments regarding law, that law is a hindrance to radical changes necessary for the removal of oppressive institutions, system and structure that exploits and discriminate the weaker sections, or for that matter woman. Moreover when we look at the larger movement, debates, and subsequent judicial reforms on the issues concerning women, we see that the space provided for all these activities are not outside the dominant power structure i.e. patriarchy, rather the whole process takes place within the domain of space which is precisely provided to the oppressed in order to prevent radical uprisings that questions and seeks to overthrow the hegemony of the oppressor.
Nevertheless this should not disillusion feminists or any movement that is seeking to bring changes in the law, it should not deter us from constantly questioning and challenging the status quo of patriarchy and all the given ‘truths’ that are constructed, legitimised and normalised by patriarchy. To conclude, I quote Smart
“It is (…) important for feminism to sustain its challenge to the power of law to define women in law’s terms. Feminism has the power to challenge subjectivity and to alter women’s consciousness. It also has the means to expose how law operates in all its most detailed mechanisms. In doing this it can increase the resistance to law and may affect a shift in power. Whilst it is important that feminism should recognize the power that law can exercise, it is axiomatic that feminists do not regard themselves as powerless.” (Smart 2002)
