Women and the law in Asia and the Near East

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GENESYS

Special Studies No. 1

TROPICAL RESEARCH & DEVELOPMENT, INC.
7001 SW 24th AVE.
GAINESVILLE, FLA. 32607

Women and the Law
in Asia and the Near East

Lynn P. Freedman

Prepared for the U.S. Agency
for Intemational Development confer. e:
Women, Economic Growth and Demographic
Change in Asia, the Near East and
Eastern Europe

Washington, D.C.

U-

May 14-15, 1991

WOMEN AND THE LAW IN ASIA AND THE NEAR EAST

Lynn P. Freedman

Columbia University

Prepared for:

Office of Teccnical Resources
Bureau for Europe and the Near East

Office of Women ia Development
Bureau for Policy and Pogram Coordination

U.S. Agency for International Development

This paper was supported by the Asia, Near East Regional Population Project through the Gender
in Economic and Social Systems (GENESYS) Project. Contract No. PDC-0100-Z-00-9044-00.

The author gratefully acknowledges the research assistance of Joanna M. Edwards of The Futures
Group.

The views and interpretations dressed i this report arc those of the author and should not be
attributed to the Agency for International DeveopMent

TABLE OF CONTENTS

Executive Summary i

Introduction 2

1. A Conceptual Framework for Addressig the Legal Status of Women 6

1.1 Substantive Component 8
1.2 Structural Component 11
1.3 Cultural Component 12

2. The Historical Context 15

2.1 The Sources of the Law 15
2.2 The Role of Personal Status Law in the Assertion of Cultural Identity 19
2.21 The Nature of Islamic Law and Women's Place Within It 19
2.22 The Political Power of Islamic Law 26
2.3 The Place of Tradition in NonIslamic Asian and Near East Countries 28

3. The Importance of Women's Legal Status to Open Markets/Open Societies 30

4. Programs to Improve Women's Legal Status and Re edato for A.ID. 34

References 42

EXECUTIVE SUMMARY

A.D.'s development strategies for the 1990s are driven by a commitment to individual choice,
both as the moving force behind economic growth and as a valued goal in its own right. A.LD.
programs such as 'Open Markets/Open Societies" and "Voice. Choice and Governance" are designed
to unleash the power of individual initiative by creating the political and economic conditions
market-based economy, free and fair elections, an independent judiciary, openness in government
intended to protect and promote the exercise of free choice. Such programs rest on the assumption
that each individual is a free and equal agent capable of exercising control over the basic
circumstances of his life; given the right societal conditions, he is positioned to make the choices most
conducive to growth and development.

But this assumption of individual autonomy stands in stark contrast to the reality of the lives
of millions of women throughout Asia and the Near East For these women, locked into a life cycle
controlled from cradle to grave by the men of their families, the vision of political and economic
freedom held out by A.LD. programs remains but a distant glimmer. While there are many factors
that converge to deprive women of control over their lives, key among them is law.

This paper attempts to elucidate the complex, often subtle, ways in which the law (a) deprives
women of the autonomy to which all human beings are entitled and on which social and economic
development ultimately depends; and (b) consistently undercuts the progress that is made when
women are able to participate in A.LD. projects. It demonstrates that giving women the ability or
tools to take control over the circumstances of their lives for example, through education, training,
or income-generation projects is simply not enough; unless and until they have the riht to most
effectively use and benefit from those abilities, they will not truly possess the kind of autonomy that
lies at the heart of A.LD.'s strategies for development

Thus the central recommendation of this paper is that AID. view women's legal status not
just as an inhibiting factor that often prevents women from participating in its other substantive
programs and projects, but as an independent element of its WID strategy to be given specific
attention in both the policy formulation and project identification processes. In that context, the law
must be seen as a two-edged sword: while certain of its elements define and enforce a social order
:hat subjugates woaen to the will of men in their homes and in the society at large, the law car also
be used affirmatively to promote and protect women's autonomy.

However, there is no precise set of laws or legal institutions that will work automatically and
cross-culturally to yield autonomy for women. Thus A.LD.'s goal should not be to design and
promote some "ideal" legal system. Rather, the aim should be to develop a deep enough
understanding of a particular legal system and its place in the life of the community, to be able to
work with men and women there to transform the role and rule of law in ways that have meaning in
their own culture and on terms that can garner broad-based support.

To this end. the paper sets out a conceptual framework that A.LD. officials can use to analyze
how the law in any given society relates to women's lives. The framework divides a legal system into
three inter-related components:

substantive: the content of the laws;

structural: the organization of the legal system and its institutions;

cultural: shared attitudes about the law, its uses, its effcacy, and its role in the overall
life of the community.

By conceptualizing legal problems in this way, the analyst can go beyond an understanding of the
theoretical content and form of the law (its formal substance and structure), to see how the law
actually functions in the real lives of people and in the corridors of power. For present purposes,
the concept of legal culture is particularly important because it helps the analyst put the laws
governing women's lives into their broader historical and cultural context in order to e':ain the great
symbolic power that such laws wield throughout much of Asia and the Near East today.

Historically, interaction with the West beginning with the colonial conquest and continuing
with the integration of Asian and Near East countries into a post-war international economic order
dominated by Western powers has profoundly influenced their law in two respects: (1) it has
determined much of the substance of legal codes and structure of legal systems in place today, and
(2) it hs trz.formed traditional law and customs into vehicles for the expression and assertion of
cultural identity in reaction to the West

Typically, when the European colonial powers conquered territory in Asia and the Near East,
they enacted their own legal codes to govern economic and political matters, but left untouched the
traditional laws that had governed their subjects' private lives for centuries. As a result, most
countries in Asia and the Near East still have a dual legal system in which civil law derived from
European legal traditions, governs most aspects of public life including the functioning of government,
commercial transactions, labor relations, and criminal sanctions and personal status law, derived from
religious law and customary practices, governs most aspects of private life including marriage and
marital relations, divorce, child custody, and some issues of inheritance.

This kind of dual legal system sharpened the distinction between the public and the private
worlds with very different implications for men than for women. For men, the private world
became a refuge from the dislocation caused by colonialism and by the ongoing process of
modernization: 'Forced to compromise their values, beliefs, and behavior, and surrender power in the
public sphere, men reacted by intensifying traditionalityy' and reinforcing their domination within their
bomes" (Sh' *?ed .186). In the process, the religious law and cuatm s.rounding family lifL, thU
personal status law, became imbued with the symbolism and power of nationalism and ethnic identity.

For women, however, the emergence of personal status law as the repository of a cultural
identity requiring constant vigilance as it is threatened from every direction, has a strikingly different
effect. This is because, in practice, the traditional laws and customs governing family relations often
give men rights and responsibilities over women that effectively deny women meaningful choices
about the basic conditions of their lives. Indeed, in some parts of Asia and the Near East, the
personal status laws dictate that a woman spend her entire life under the formal guardianship of a
man first her father or brothers, then her husband never granted the legal "capacity" of an adult
and so never given the right to determine the course her life will take.

For example, a girl's parents generally decide whether and for how long she will go to schooL
They decide when and to whom,she will be married. Once married, her husband may demand total
obedience and, in some places. is explicitly permitted to enforce that demand by physical beating.

In many cultures the wife is secluded in the home (purdah) and must be veiled when she ventures
into public. The dependence and vulnerability that these laws and customs create is often
acentuated by unequal divorce and property laws. In Islam, for example, the husband has the
unilateral right to divorce his wife at will and is required to provide only minimal, short-term support.
While Isiamic law grants women certain property rights that theoretically would provide security, in
practice women are often forced to cede control over their property to the men of their families.

In short, the laws and customs operating in the private sphere effectively deprive women of
the ability to make choices, to take control over, the most basic aspects of their lives. Under these
circumstances, a woman may never enter the public sphere in any meaningful sense; thus changes in
the civil law that governs economic and political life the kinds of changes needed to implement
A.LD.'s Open Markets/Open Societies and Voice, Choice and Governance programs may have no
effect o.- her whatever. This will be true even of changes aimed directly at improving the status of
women. For example, if a woman's husband will not permit her to work outside the home (and the
law in many countries explicitly gives him this right), then a statute that forbids gender discrimination
in employment or in financial markets will do little for her ability to participate in a newly opened
economy.

Yet simply abrogating traditional law and enacting secular, western-style codes is dearly not
the solution. For, despite their adverse impact on women's autonomy, the personal status laws
grounded in religion and custom continue to resonate with meaning for women as well as for men
throughout Asia and the Near East Thus, only a movement that grows fiom within the society, that
has support of a wide cros-section of women, that is expressed in terms and concepts that have
meaning in the culture, and that is sensitive to the historical context of the law, has the chance to
effect real. broad-based change in the lives of women.

Without such change, the impact of A.LD.'s initiatives will be substantially muted. For
example, even where A.LD. has succeeded in institutionalizing gender considerations in its own
internal procedures, its best-laid plans are regularly thrwarted by external factors: A survey sent to
all A.LD. missions has revealed that legal constraints prevented women from participating in half of
all AID.-sponsored projects and programs. And women who do participate in ALD. projects often
lack the legal right to make maximally productive ue of the skills they have acquired or of the
income they have generated.

Quite apart from its influence on specific A..D. projects, women's autonomy (defined in part
by their legal status) has been shown to be essential to a society's overall development, even in
countries that have enjoyed spectacular economic growth (Caldwell 1986). Finally, women's rights
are a vital component of the range of human rights recognized in international law and supported
by United States policy. Thus the improvement of women's legal status has value as a goal in and
of itself since programs that promote women's rights as human rights seek to give women the dignity
and freedom to which every human being is entitled.

For all these reasons, A.D. should begin to look at women's legal status not merely as a
constraint on its other projects, but as an independent, affirmative element of its WID strategy. This
can be done most effectively through PVO support projects that further the work of the many
women's groups already seeking to improve the status of women from within the cultural reality of
their own societies. For example, some groups are developing the theoretical foundation for
reforming Islamic law by exposing the contradiction between Islam as it is currently practiced and the

original intent of the Quran (often more favorable to women) or by demonstrating how the doctrinal
tools of Islamic jurisprudence can be used to modify current practices while remaining -rue to the
principles of Islam. Other groups are actively mobilizing to bring about legislative reform at the
national leveL Still others are involved in grassroots legal literacy programs designed to empower
women by helping them understand the legal system and utilize the law to promote and defend their
rights in both private and public matters. A.D.'s support for such PVOs could be complemented
by policy dialogue with lawmakers and other government officials.

Finally, coordinating projects aimed at improving the legal status of women with A.ID.
projects designed to promote women's autonomy through other mechanisms such as training or
income-generation, may demonstrate a kind of synergy between these two approaches to the
advancement of women. A program that enables women to enhance simultaneously both their ability
and their right to control the circumstances of their lives may be the best way to ensure that women
can make the kinds of choices that form the foundation of A.LD.'s vision of development

INTRODUCTION

The Open Markets/Open Societies initiative ENE's strategy for promoting Third World

development in the 199(s rests upon one fundamental concept: choice. Open societies are defined

by the right of individuals to choose who will govern them, to choose what to say and how to say it.

to choose with whom to associate. Thus the strategy for developing open societies is to create the

conditions for the free exercise of such choices: the DPI "Voice, Choice, and Governance" program

is designed to promote openness in government, strengthen the judiciary, regularize the electoral

process. and encourage popular participation in social institutions. Similarly, open markets are

defined by the right of individuals to choose freely how they will invest their assets, to choose how

and where they will deploy their labor, to choose how to dispose of their income. The Open Markets

program primarily a drive toward privatization is assumed to create the conditions for such free

exercise of choice in the economic sphere.

Indeed, individual choice is not only the key concept underlying ENEFs particular strategy for

economic development, it is for A..D. the ultimate goal of economic development. As one A.LD.

document puts it:

"The advantage of economic growth is not that wealth increases
happiness, but that it increases the range of human choice. The case
for economic growth is that it gives man greater control over his
environment and thereby increases his freedom." (Regional Overview
at p. 43 quoting Sir Arthur Lewis).

Thus. choice is one of the central values that A.LD.'s programs for the 1990s are designed to

promote.

Yet choice describes perhaps the single most important difference between men's lives and

women's lives as they confront the challenges ef economic development. Choice implies autonomy

and controL In many countries in Asia and tte Near East, control or choice is a feature distinctly

A.

absent from virtually every aspect of a woman's life, from the most practical of concerns how to

expend her labor to the most intimate of concerns the expression of sexuality. While there are

many mechanisms that effectively constrict women's control over their lives, key among them is law.

Of course, law is a factor that has been highlighted in ALD. strategies. But most often the

rule of law is viewed as a force for liberation, because in the A.D. model the rule of law operates

primarily at the societal level as a principle that protects choice. For example, as a central element

of the Open Markets/Open Societies (OM/OS) initiative, the rule of law protects private property,

it makes business transactions reliable and predictable, it guarantees freedom of expression and

association, and it ensures fair access to society's financial and natural resources. In short, the rule

of law regulates the political and economic interaction a-nong presumptively free and equal

individuals.

But, for women, the rule of law begins in the home. In theory, the personal status law1 that

governs that private sphere through its application to such matters as marriage and marital relations,

divorce, custody and inheritance. often carves out certain specific rights for women. But, in practice,

at the level of family life where the most basic conditions for an individual's participation in open

markets and open societies are set personal status law and custom is a force that severely restricts

women's ability to control their lives, to exercise the most fundamental kinds of choice.

Thus a central challenge for A.D. program officers will be to link conceptually and

programmatically these two areas of the law- (1) the civil law that operates at a societal level creating

the conditions for open societies and open markets to function; and (2) the personal status law that

operates at the household or family level and that. for women, undercuts the very basis for

participation in social and economic life. Until these two categories of law are linked, even the most

1 [Insert definition of Personal Status Law here]

3

elegant system to promote and protect individual choice in the society's political and economic life,

will remain for women an empty promise.

Yet it would be a grave error to dismiss the personal status laws that impede women's

participation in the community's social and economic life, as anachronistic hold-overs of some

irrelevant, feudal past that, with a little diligence and political will, could be neatly wiped away.

Especially in Islamic countries, personal status laws have played a pivotal role in the management of

confrontation with the West, in the negotiation of the modernization process as these countries

struggle to consolidate their place in the world order. In the process, these laws have been vested

with a profound symbolic importance that deeply complicates any effort to promote social change

through law. Consequently, any discussion of women and the law, and certainly any plans by an

American development agency to address the topic, must be informed by an appreciation of the

historical context and its implications for the present situation.

This paper seeks to provide A..D. officials with some general guidelines for determining

where women fit in the bewildering maze of laws and legal systems.found throughout the diverse

countries of Asia and the Near East and for analyzing how the law influences women's ability to

participate in and benefit from development. Part 1 sketches out a framework a sort of conceptual

map that A.LD. officials can use both to identify the legal barriers to women's involvement in

OM/OS activities and other development programs, and to identify law-related tools that may be

available to address these problems. The framework emphasizes the fact that a theoretical grasp of

the content and form of the law is not enough; such an understanding must be firmly planted in the

legal culture that nourishes the system, that imparts power to certain principles and saps the strength

of others. Especially on questions of women's legal status, this cultural dimension of the law must

be understood in historical perspective Accordingly, Part 2 provides a brief overview of the historical

context of laws determining women's legal status and concludes t.at in any given country or

community, this history will, to a large extent. set the terms of the debate over women's legal status

and its relation to A.LD. activities.

Part 3 then looks briefly at the impact that women's low legal status has had on important

aspects of development in order to demonstrate that, despite the thorny political and practical

problems that any law reform effort faces, this is indeed a critical place for ALD. to focus its

attention in the implementation of its initiatives. Finally, Part 4 describes some of the strategies that

have been sucessfully employed to address women's legal status and sets out some general

recommendations for steps that might be taken to make choice a meaningful element in the lives of

all men and women in the Asia and the Near East

1. A CONCEPTUAL FRAMEWORK FOR ADDRESSING
THE LEGAL STATUS OF WOMEN

Individual autonomy has multiple dimensions: It enails a woman's personal, subjective ability

to make choices, to take control over the circumstances of her own life and it also entails a society's

objective recognition of women as full and equal adults whose work in all their roles contributes to

the society's welfare and development. As such, individual autonomy is both a valued goal in its own

right and an important precondition to development Of course, women's autonomy is not simply a

legl condition; it is very much a social, political, cultural and psychological condition as well. Yet

the law is clearly a force that can either inhibit autonomy (as when it explicitly or implicitly denies

women the legal right to control particular aspects of their lives) or promote autonomy (as when it

grants women rights enforceable through the legal system).

Although autonomy secured through law may be so fundamental a human right that it

transcends national boundaries, it is critical to recognize that there is no research legal or otherwise

- that identifies a set of precise laws and legal institutions that work universally and cross-lturally

to guarantee women the kind of autonomy that is an implicit part of the OM/OS program. Indeed,

there is not even an accepted theoretical basis aoout causal connections between law and social

change on which such research might be based (Merryman 1977; Friedman 1969).

Thus A.LD.'s strategy for promoting women's autonomy in the Asia and Near East regions

should not be to facilitate importation of an American legal model for the defense of individual

rights. nor should the strategy be to develop some new "ideal legal model to be used throughout the

region. Experience with legal development" in other areas of the law proves that such wholesale

importation of outside systems to be implemented from the top down does not work.2

2 In the late 1960s and early 1970s, AILD, together with some private foundations such as Ford,
poured millions of dollars into the "Law and Development Movement" in an effort to create in Third
World countries the kind of legal system (based on an American model) that was assumed without

6

Rather the goal should be to develop a deep enough understar ling of the legal system of any

country or community to be able to work with women there (1) to understand how law inhibits or

promotes their participation in social and economic life; and (2) to determine ways in which the legal

system might be used effectively to secure women's autonomy.

One approach to understanding bow a legal system relates to some aspect of development,

such as women's autonomy, is to divide the legal system into three different, but interrelated,

components':

(1) suimantive the content of the laws;

(2) structural the overall organization of the legal system and its institutions

(3) cutukra

shared attitudes about the law, its uses, its efficacy, and its role in the
overall life of the community.

much basis in research, theory or even history to be essential for economic development The law
and development movement proved a failure, as efforts to impart American legal values without
sufficient regard to indigenous legal cultures either fizzled into irrelevance or were coopted by
entrenched interests to promote authoritarian policies directly at odds with the aims of US. assistance
(Gardner 1980).

3 The three-part framework is based on the work of Lawrence Fridman, particularly 'Legal
Culture and Social Change.' A similar analysis of legal systems, also based on Friedman's work, is
used by Margaret Schuler in Empowermen and the Law.

L1 Substantive Component

What does the law actually say? What are the rules as written in law codes or as articulated

by courts? To assess women's overall legal status it may be useful to ask what is a woman's legal

"capacity' under both the state-enacted civil law that governs public life and under the religiously-

derived personal status law that governs family life.

In law, the term 'capacity" technically refers to the ability of a person to undertake legal

obligations or enforce legal rights on his or her own. without assistance or permission of a guardian -

a screw of legal adulthood. But as one commentacer has suggested, the concept of capacity can be

expanded beyond its technical legal meaning to serve as a broad measure of women's equality

(Freeman 1990):

Capacity iA its more genera; sense refers to the ability to accept and
to exercise the rights and responsibilities of an adult in one's society.
This concept implies both personal commitment to adult responsibili-
ties and the perception of others that one is capable of living up to
them. Ultimately, it implies a full range of choice in one's personal,
social, and economic life (Freeman 1990 at 112-113).

Using this broader notion of capacity to aess the substantive component of the law. we can

ask first whether the law gives women including married women full legal capacity in the

technical sense: Can women sign contracts? can they own property? obtain credit? become guardians

of children? testify on an equal basis with men in a court of law? But we can also ask whether the

law recognizes women as full-fledged contributors to the country's economic and social life: Are

women allowed to be elected to political office, become judges, or be appointed as public officials?

Are they entitled by law to equal pay and equal employment opportunity? Is the value of their work

in the home legally recognized? Do government programs and policies ever recognize women as sole

or joint heads of households, or do they direct benefits designed to assist families solely to men?

The answers to these questions will be found both in tie personal states law that govern

private life. t g marriage, divorce, custody, and inheritance (addressed in pat II below) and in the

civil law that governs public life. For the purpose of analying women's legal status in the contest

of a particular A.I.D. program, the civil law can be approached at two different -eves. Fist, there

will be innumerable details in the hundreds of statute and regulations that make up the civil law that

will affect women's participation in economic and social life. Soe of these laws il be discrminato-

ry on their face, such as a law that requires a woman to hae her husband's permission to be

employed but does not require a man to have his wife's peris*nio, or a law that authorizes different

employment or social security benefits for men than for women. Other laws wll be neutral on their

face but will have a discriminatory impact on women. For exaple, lawv that lirnit employee rights

in export processing zones may say nothing at all about male aera female workers, but because 90%

of the workers in some EPZs are women, the law will in practice have a disparate impact.

Conversely, labor laws that protect workers' rights will have little impact on the millions of women

who earn their living in the informal sector beyond the reach of such laws.

Indeed, for almost any sector of the economy where AL.I.). is Siolvh d it may be possible to

find scores of rules and regulations that work to the disadvantDge of women- In the contact of a

particular AID. program, a change in any of these laws might have a salutary effect, and might

usefully be pursued with vigor. Yet it should be acknowledged that this ind of'piecemeal legal

reform is essentially tinkering with the system; it rarely makes a broad-based impact on the lives of

women.

The second level at which the substance of the civil law can be assessed it by asking whether

the system as a whole incorporates the basic principle of full legal capacity in its widest sense,

whether it has acknowledged explicitly that women are full and equal humna beings entitled to the

same autonomy and control over their lives as men and that their work contributes to the society's

welfare and so should be recognized and valued on an equal basis with that of men. This is a

principle that has been incorporated into international law in a wide range of treaties and

conventions, and that finds its fullest expression in the Convention on the Elimination of All Forms

of Discrimination Against Women. Indeed it is a principle that has been formally adopted by many

countries in Asia and the Near East, either in national constitutions guaranteeing freedom from

discrimination on the basis of sex, or by the ratification of international conventions that provide the

same guarantee.

Adoption of this broad principle in the nation's laws may represent little more than an

accommodation to international political pressures; it may represent the honest aspiration of tae

government in power at the time the instrument was adopted or of the majority of the citizens of the

nation; it may even be a vibrant, living rule of law that can be wielded as a scalpel to cut out the

individual elements of civil law or personal status law that deprive women of their autonomy. But

once such a principle has been formally adopted its true effectiveness as a force for guaranteeing

some measure of choice in the lives of women depends on the structural and cultural components

of the system.

1.2 Strctural CIampoaen

The legal system can inhibit or promote women's autonomy not just by what the law actually

says, but also by how it implements legal rules. Thus understanding the structure of the law the

separation of legislative. exut:ve. and judicial powers the legislative process, the court system, the

police and administrative agencies is an essential step in deciding how to address its substance For

example, we would need to evaluate the structural components of the system in order to decide

whether a discriminatory labor law is best addressed through a court challenge, through lobbying

legislators. by working with administrative agencies, or by activities outside the legal system altogether.

Of course, the structure of the law may in itself present problems for women, as when particular

judges mistreat or discriminate against women in their courtrooms, and this too will present strategic

questions of how best to attack the problem.

To answer such strategic questions we would need to understand both the structure of the

law in theory and the structure of the law in fact Knowing how the law works in theory enables the

advocate to frame his or her argument in the proper terms and to pursue it in the proper forum.

Knowing how the law works in fact in the everyday lives of the peopk ".d in the corridors of

power is the real key to shaping an effective strategy for addressing the status of women. And that

is largely a question of legal culture.

13 Clturai Component

Together, substance and structure define a legal system in which issues related to women's

autonomy can theoretically be located: armed with knowledge of the system's substance and structure,

an interested person (or at least a relatively competent lawyer) can figure out what laws restrict

women's participation in economic life, what principles can be used to challenge such laws or to halt

illegal, discriminatory practices; he can figure out which agency has authority over the matter and

which court has jurisdiction over the suit in short, be can give a polished legal opinion on the

problem in question. But until that opinion and the substance and structure on which it is based, are

grounded in the community's legal culture, they remain a total abstraction, providing little concrete

guidance on what is the best route to effective lv address the question.

Legal culture refers to attitudes and values about law and its place in society as a whole; it

relates both to the law's substance and to its structure. With respect to structure, for example, we

would want to know more than just how many judges sit in how many courts; we would want to know

what kind of people the judges are: how do they get appointed, what social classes are they from,

what is their educational background. are they from the same community as the litigants on whose

cases they rule? We would want to know what principles they use to decide cases, bow much

discretion they have. and to whom they are accountable. Before deciding to bring a law suit as a way

to enforce a law guaranteeing women some particular right, we would also need to ask what the

social meaning of litigation is in the particular culture. In some countries people file suit with zeal

while in others it is considered a shameful or impolite approach to dispute resolution (Friedman

1969b).

Moreover, it would be important to recognize that attitudes about the law can vary drastically

by social class, by geography, by ethnic group. Some legislation may have influence and enforceability

in urban areas, but be totally ignored (if it is known at all) in rural areas. So, for example, an upper

class, highly-educated woman in an urban center might effectively use an equal protection guarantee

in her country's constitution to vindicate her property rights or a claim to equal pay in her profession.

But in a rural village in the same country where the same constitutional equal protection provision

is theoretically "the law' it would be unthinkable for a woman to go to court to assert a property

right that local custom never granted her to begin with.

Thus, legal culture tells us much not only about bow the legal system actually operates, but

also about the meaning that any substantive law will have in actual practice. The values and attitudes

that nake cecta la,.s effective in inlluencing behavior in one society can be virtually meaningless

in another. Tax laws provide a good example. Two countries that need to raise revenue could enact

exactly the same tax law. In the United States, raising taxes by law is likely to have the desired result

of increasing government revenue because people generally pay their taes; other countries, Italy or

Argentina for example, are notorious for their inability to collect taxes so the same new tax statute

might very well turn out to be a dismal failure.

This is not to say that Americans have great respect for all law and other people do not:

consider the criminal laws prohibiting fornication and adultery that remain on the books of many

states around this country. Even when a violation by a public figure becomes public knowledge, most

Americans would be shocked to see the matter treated as a crime, resulting in the kind of prosecution

and jailing clearly authorized by duly-enacted statutes. Yet in other countries, such as Pakistan,

criminal laws on fornication and adultery have been the center of great debate and controversy

because their enforcement is taken extremely seriously (see Mumtaz and Shaheed 1987).

In both examples, the behavior that the laws sought to encourage or prevent was exactly the

same. The laws might have been written with identical language and the governments might even

have comparable enforcement mechanisms at their disposal Yet the results were totally different.

It is that difference that distinguishes between the law as it appears in the statute books and treatises

and the law a a living force in people's everyday lives.

When it comes to laws related to women, the picture becomes even more complicated. While

the principle of equality between men and women may be expressed in a state's carefully drawn

legislation, in every society (including our own) that legislation addresses values, attitudes and

behavior that are rooted in religious practice and/or deeply-ingrained custom. In some countries, that

practice and custom is expressed in a body of personal status law that, while reinforcing patriarchal

social structures to the great disadvantage of women, has also reflected the community's struggle with

modcrriy. Thus understanding the interplay between secular, civil law and religiously-derived

personal status law requires an assessment of legal culture that is particularly sensitive to its historical

context. Perhaps nowhere is this more true than in the Asia and Near East regions.

2. T13E HIISTRICAL CONTEXT

The more than twenty countries that formerly comprised the Asia and Near East regions have

extremely varied cultural and political histories. There are, however, certain phenomena that in broad

outline -e common to nearly all of them. Most significantly, the law of most of these countries has

been profoundly influence by their interaction with the West, fist by the experience of colonial rule

and later by the drive to modernize their economies in the struggle to secure a place in the world

economic order. The influence of this interaction with the West has been two-fold: (1) it has

determined much of the substance of legal codes and structure of the legal systems in place today,

and (2) it has transformed traditional laws and customs into vehicles for the expression and assertion

of cultural identity in reaction to the West.

2.1 The Sorces of the Law

The economic interests that powered European colonial enterprises required the creation of

local economies that would fit the imperatives of empire. This was accomplished, in part, by the

enactment of laws modelled on European legal systems that set guidelines for the operation of

government, the conduct of business enterprises, and the functioning of labor markets. In eence,

public life in colonial territories was regulated by state-created law, based on Western legal concepts,

enforced through western-style courts. These laws were instrumental and utilitarian in character, Le..

they were imposed by centralized authorities as rules consciously and purpusefully designed to foster

certain forms of social and economic life deemed best suited to achieving the state's ultimate goals.

By contrast, the colonial powers had little interest in the conduct of their subjects' private

lives family relations, social status, religious duties and so typically left the rules governing these

aspects of life untouched by official enactments.' As a result, the religious and customary law that

had governed questions of personal status for centuries was allowed to remain intact. Quite unlike

the utilitarian basis of public law, personal status law was grounded in religion and custom; emanating

from divine or sacred sources personal status law is thought to embody values that are important in

and of themselves and so such law admits of no quick manipulation to meet social goals.

In almost all the countries in Asia and the Near East, including those that were not formerly

colonies, this dichotomy between the law governing public life and that governing private life has

persisted. Throughout the 1950s and 1960s, bent on a course of industrialization and urbanization.

most of those countries continued the trend of secularization (borrowing heavily from Western

models) in those realms of public law. such as administration and finance, with obvious impc-t for

modernization of the economy (Mayer 1986). Other areas, primarily personal status law, remained

largely unaffected. When changes in personal status law were made eSg codification of grounds

for divorce or requirements that marriage be registered they were typically enacted in a piecemeal,

ad hoc fashion, leaving the philosophical foundation of the law firmly intact (Mayer 1986).

As a result of this historical process, most of these countries today have a dual legal system

in which:

(1) civil law found in constitutions, statutes, ordinances and judicial decisions, and derived

from European legal traditions, governs most aspects of public life including the

4 While the colonial regimes may ha-- had little interest in the precise content of this law, they
were intensely interested in who wielded the power of enforcement. Thus, in some instances the
colonial regimes were able to consolidate power over the population by vesting enforcement power
in the local elites (see Shaheed 1986).

functioning of government, commercial transactions, labor relations, and criminal

sanction; and

(2) peonal status law derived from religious law and customary practices governs most

aspects of private life including marriage and marital relations divorce, child custody,

and some issues of inheritance.

In some countries, such as Thailand and Nepal there is only one code of law per se, but on

questions of personal status the code draws directly on religious law and custom for its substance. In

other countries such as Morocco, the two legal systems operate quite independently, indeed, two

separate court systems applying the two different bodies of law are maintained (Dwy -r 1990). In

countries with significant populations of different religions, such as India, the legal landscape becomes

even more complicated as each person's private life is governed by his own religion's personal status

law.

A legal system that has one body of westernized civ law governing public life while a second

body of law derived from religion and custom governs private life has far different implications for

women than for men. In practice, personal status law sets the terms of a woman's engagement with

the rest of her society. As shown in some detail below, laws and customs that govern family relations

often give men rights and responsibilities cover women that effectively deny women meaningful choices

about the course of their lives. Under these circumstances, a woman may never enter the public

sphere in any meaningful sense; thus changes in the civ law that governs economic and political life

may have no effect on her whatever. The obvious czample: If a woman's husband will not permit

her to work outside the home (and the law in many countries explicitly gives him this right (Abul-

Husn 1990)), then a statute that forbids discrimination in employment or in financial markets on the

basis of sex will do little for her ability to participate in a newly opened economy.

By contrast, the social systems of most countries in A. and the Near East have always per-

mitted a man to live in both the public and private worlds. As political and economic development

have transformed public life, and the laws that guide it, he too has had to bend and change to fit new

realities. His experience in adapting to the demands of the pubh world may do much to shape his

relationship to his private world and the women within it In the process, the laws that govern that

private world laws whose interpretation and application has been controlled exclusively by men -

have been imbued with rew raeaning and importance.

2.2 The Role of Pennal Statu Law in the Assertion of Cultral Identity

Religion and customary practices remain powerful forces in all countries in the Middle East

and Asia. But law is so central to the practice of Islam, and Islamic law is so influential in shaping

the lives of Muslim women, that Islamic countries provide the most vivid example both of the

intricate historical and cultural forces that make personal status law the powerful political symbol it

has become today, and of the way in which personal status law conditions women's ability to

participate in development programs. For this reason. I will use Islamic countries as the primary

example through which to explicate the power of customary law. On this point, variation among the

countries in Asia and the Near East is often more a matter of degree than kind and so the Islami

ample will hold important lesons for A.LD. officials operating in non-Islamic countries as well.

2.21. The Nature f Islamic Law and Women's Place Wrthin It

Islamic law (shari'a) is "a comprehensive set of rules for human conduct as provided through

Allah's command, with those rules being instrumental in controlling negative social and political

tendencies' (Dwyer 1990 at I). Thus shari'a governs not only man's relationship with God, but also

man's relationship with his fellow man. Obedience to Islamic law is therefore basic to the very

functioning of Muslim society, to the survival of the community of believers, and so is the essence

of the religion. As the legal scholar, Joseph Shacht, expressed it, Islamic law is the epitome of

Islamic thought, the most typical manifestation of Islamic way of life, the core and kernel of Islam

itself" (quoted in Dwyer 1990 at 1).

In jurisprudential theory, Islamic law is derived from four sources: the Quran, the Suina (the

model behavior of the Prophet as related in collections of sayings or ahadith), analogic reasoning

(qiyas), and the consensus of the community of scholars (ijma'). The fluidity of the latter sources

meant that, especially in the early years before codification in detailed legal manuals, Islamic law was

a flexible and adaptive system (Dwyer 1990). Schisms in the Islamic community in the first few

centuries after the Prophet's death in 632 A.D. (most prominently the split between Sunni and Shi'ite

Muslims) and the subsequent growth of multiple schools of jurisprudence, has made Islamic law, as

it is espoused throughout the world today, a richly varied tradition. With no central church or

divinely-ordained clergy that can declare doctrine (as, for example, in Roman Catholicism), there is

simply no such thing as the Islamic law.

Indeed, even rules clearly articulated in the Quran take very different forms throughout the

Muslim word, though all purport to be grounded in the principles of Islam. For example, the Ouran

allows a man to marry four wives, but it also enjoins him not to do so unless he can treat them

equally and fairly. Some countries, such as Saudi Arabia, permit men full freedom to marry four

wives on the basis of this Quranic passage. Other countries, such as Tunisia, have prohibited

polygamy entirely on the theory that it is impossible to treat multiple wives equally and fairly. Still

other countries take a middle road and permit polygamy while giving women some legal options if

they are not treated fairly.

Moreover, anthropological studies of litigant behavior and dispute resolution in shai-'a courts

(Antoun 1990; Rosen 1989) demonstrate that in everyday practice Le, presented with the concrete

facts of a particular case Islamic law can bend and stretch like any living legal system. Indeed. such

studies remind us that in analyzing the impact of Islamic law on any given problem. in any given com-

munity in the Asia and Near East regions, context is all important (see Dwyer 1990).

Despite the huge variations in the practice of Islamic law both de jure and defacro, it is useful

for didactic purposes to generalize about the place of women in Islamic counties. In Islam, as in

almost every other culture, the conditions for women's participation in public life are set, first and

foremost, in the home. And it is there, in the personal status law the law that governs family and

household relations including marriage, divorce, child custody, guardianhip and succession that

shari'a has been the most highly articulated. Indeed, personal status law, more than any other area

ofshari'a, is elaborated in the Quran itself the most authoritative source of Islamic law.

Significantly. much of the original int-nt of Quranic rules of conduct was actually to improve

the status of women and to make the conjugal family the primary social unit in .... new Islamic

community. The Arabian society from which Islam arose was a kin-based system ruled by tribal laws

that gave women.virtuall no legal status whatever: 'ThMy were sold into marriage by their guardians

for a price paid to the guardian, the husband cold terminate the union at will, and women had little

or no property or succession rights' (Coulson 1979 at 37). In short, in pre-Islamic Arabia, a woman

was "regarded as little more than a pece of property" (Esposito 1982). Thus Quranic rules that give

specific rights to women albeit unequal to those of men meant a substantial improvement in their

life conditions. Moreover, the Quran commands the Muslim man to respect women, particularly in

their role as mothers, and to obey the Islamic laws that grant them important rights (Siddiqi 1975;

Hassan 1989).

However, the leap from the ethical principles of the Quran to the actual practices in force

in Islamic countries today is a long one. As a number of scholars have shown, over the centuries

slam has been interpretca and reformulated into rules of conduct that have often been wsed by

dominant powers to legitimate practices that subjugate women to the will of the men in their families

and that exclude women from the life of their communities even when such treatment of women

contravenes basic Quranic ethical principles and rules of behavior (.g, see Shaheed 1986 and 1988,

Hassan 1989, Kandiyoti 1989). Thus the careful separation between the classical dictates of Islam

as a religion, on the one hand, and its cultural expression into a body of law used to deprive women

of rights. on the other hand, is a task that has occupied a substantial segment of the women's

movement in the Asia and Near East regions5

For the purpose of including women in OM/OS activities, the important point to recognize

is that in practice in Islamic countries today, women often have little choice about the most basic

matters in their lives. Parents generally decide whether and for how long a girl will go to school; they

decide at what age and to whom she will be married. Although Islamic law requires the bride's

consent to marriage, as a practical matter this is easily and regularly overridden by coercion or by the

father giving substituted consent in his role as guardian (wah'). After the wedding, the bride will

move to her new husband's home where she lives and labors under his strict control and the watchful

eye of her mother-in-law. The husband often has the formal legal right to decide whether or not his

wife may be employed and, if so. whether she may use her wages.

Behind this constellation of laws and customs lies a conception of women as valuable primarily

for their ability to bear children and to gratify male sexual needs. Because a girl's value lies'in her

ability to bear sons to ensure preservation and purity of her husband's family lineage, her virginity

becomes a critical asset. Until her marriage usually at the earliest possible point after puberty -

preservation of virginity becomes a badge of honor for her brothers and father and they strictly

control her movements and interactions with males. After marriage, the husband ensures her fidelity

by enforcing her strict isolation from men and, if he can afford it, by keeping her secluded in the

home and/cr veiled when she goes into public.

5 There is also a growing body of technical legal literature devoted to showing how the tools of
Islamic jurisprudence can be used to transform Islamic personal status law into a set of rules more
favorable to women without abandoning the essential principles on which classical Islam is based (e.g.
An-Na'im 1987; Esposito 1972).

Of course female virginity before marriage and sexual fidelity in marriage are valued in many

cultures. Yet rarely do we see those values guarded through laws and customs as controlling of

women as those found in Islamic countries. The rearo.- are obviously complex, but at one level can

be explained by a view of female sexuality as untamed and irresistible and thus as deeply threatening

to what is perceived as the male world of rationality (Mernissi 1987). Thus customs such as female

"circumcision" designed to protect virginity by denying a woman sexual pleasure and, in its most

severe form (infibulation), by physically preventing penetration while not required by Islamic law,

have been tenaciouslyy maintained in many Islamic countries.

Fow.-er, in other, more indirect ways, Islamic law clearly does operate to deprive women of

autonomy. For example, the laws governing obligations in marriage and divorce, while designed to

improve on the pre-Islamic status of women are generally implemented in a way that leaves the wife

in a dependent and precarious position both economically and psychologically. Under Islamic law,

the Muslim woman can have only one husband. The Muslim man, however, may take up to four

wives. The husband is obligated to maintain his wife during marriage; in exchange, she owes him

obedience and total sexual fidelity. This is hardly an equal exchange, however, since the law puts

numerous means at the husband's disposal to ensure his wife's obedience and fidelity (including the

right to physically beat her) but makes it extremely difficult for tbe wife to enforce her husband's

obligation of support.

Specifically, Islamic law gives the husband the unilateral right to divorce his wife for any

reason (or for no reason whatever) simply by declaring his repudiation of her three times (talaq) and

his maintenance obligations after divorce are then extremely minimal The wife, on the other hand,

is generally entitled to divorce her husband only in a court of law and only upon proof of the

6 Support of his children is less of an issue since Islamic law automatically grants the husband
custody of children over seven years old, thereby depriving the divorced woman of what tradition has
taught her is the very reason for her being her children.

23

particular grounds speciSed by statute. During marriage the wife can, theoretically, sue for payment

of maintenance, but in some schools of Islamic law, the husband's failure ultimately to provide that

support (no matter what his reason) is not sufficient grounds for divorce and thus she is left with no

avenue for escape.

Although Islamic laws give women specific property rights that could offer some measure of

economic security, in practice these are quite difficult to assert and protect. For example, in the

marriage contract, the husband's family agrees to pay a bride price (mahr) which, under Islamic law,

technically belongs to the woman herself: in practice however, the part of the mahr due upon

marriage is often paid to the bride's father and brothers (Keddie and Beck 1978). Although by law

the wife is entitled to collect the balance of the bride price upon divorce, this too often proves

impossible. Similarly, although Islamic law of inheritance grants women certain shares in the estate

(usually one-half that of males who stand in the same relationship to the deceased), this property is

also regularly usurped by the men in the family who claim it as compensation for supporting a girl

until she can be married off (at which point she will provide no further economic return to her natal

family). For a woman who has been denied an education, been forced into an arranged marriage at

puberty, been secluded in the home and veiled when she is permitted to venture into public in

short, for a womanwho has been denied all control over her life circumstances repudiation or

failure of support can obviously be devastating.

In reality of course, the Islamic personal status laws outlined above operate in an almost

infinite variety of ways in the lives of real people in hundreds of thousands of Islamic communities

across the Asia and Near East regions. For one thing, the cultural ideal a woman who stays at

home. tending her children. never interacting with any men outside her family, and remaining in

complete isolation from all public life often does not prevail In truth, women throughout these

regions must work to survive. Thus growing numbers of women are found in agriculture, in

professions, and in other sectors of the economy. But, despite the growing presence of women in

public life, there has been no diminution in the fervor generated by Islamic ideals. Indeed, many

educated. affluent women are among the range of voices urging a more central place for Islam in

their societies. Thus the picture that presents itself to an Amrrican aid agency interested in

promoting women's legal rights is complex. Clearly Islamic personal status laws as they are

interpreted and enforced in many parts of Asia and the Near East effectively preclude women from

benefitting from OM/OS-style programs as those programs are currently designed. Yet just as clearly,

civil laws guaranteeing women's equality, which in some countries now coexist with Islamic personal

law. will not automatically, just by their presence in the legal code, eclipse a cenuries-old legal

tradition. Most importantly, the people in Islamic countries including vast numbers of women -

do not necessarily want to abandon Islam in favor of secular norms. For Islamic laws and customs

have been transformed beyond just rules for regulating the movements of everyday life, into political

statements that are asserted by Muslim women as passionately as by Muslim men.

2.2.2 The Political Power of slamic Law

It is no accident that the resurgence of Islamic fundamentalism in the last few decades has

often bee.. chatineed into political demands for the state to enforce a restrictive interpretation of

Islamic personal status law, particularly as it relates to women. In part this is a function of the

centrality of personal status law in Islam overall, but it is also a function of the dual legal system

initiated during the colonial era. By leaving traditional, indigenous law intact in the private sphere,

the colonial powers created a natural place for their subjects to express and protect their own cultural

identity in reaction to colonial domination. "Forced :o compromise their values, beliefs, and behavior,

and surrender power in the public sphere, men reacted by intensifying traditionalityy' and reinforcing

their domination within their homes." (Shaheed 1986 at p. 42).

In the process, the law and custom surrounding family life, and so the law most immediately

relevant to women, became imbued with the symbolism and power of nationalism and ethnic identity.

In that context adherence to the laws of Islam became a symbol of resistance to westernization. For

example. in the independence movement in Algeria. the wearing of Islamic dress for women became

a symbol of nationalism and of resistance against the French (Kandyoti 1989; Mayer 1986).

In recent decades, the political power of the fundamentalist movement has grown. In country

after country across these two regions. Islam and adherence to Islamic law are regularly invoked to

secure the government's legitimacy, and Islam's principles are stretched and molded by diverse

interest groups to justify virtually every change in or challenge to the social order.

In this fluid and complex landscape, Islam may be involved and
evoked at all sorts of levels in cultural practices of kin-based
communities, in state ideologies incorporating coerent legislative
practices, in a more privatized religious co eviction, in organized and
militant social movements. as a nod in the direction of Muslim aid
donors or internal political allies, or as a more diffuse discourse on
national and cultural authenticity. The meaning and daily reality of
Islam can be so diverse as to justify the question, which Islam?
(Kandyoti 1989 at p. 8)

For the movement to give womeu full human .igit., the siLration is perilous, for in this

climate, 'westernized" has become a pejorative term regularly used to attack any group agitating for

recognition of basic rights for women.7 Thus, the reality is that in most Islamic countries, Islam has

7 Farida Shaheed points out that in Pakistan at least, "westernized' as a pejorative term has been
used almost exclusively to refer to women. Women who cut their hair, speak English, wear the
national dress without a chaddor, do not cover their heads, work in new occupations, drive, smoke
and engage in sports are all condemned as 'westernized.' Men, on the other hand, can do all the
above and more without questioning either their national or Muslim identity. One means by which
national identity serves to reiniorr-: patriarchy is forcing women to become the repositories of
society's culture while reserving the prerogative of modifying social behavior to men" (Shaheed 1986
at p. 43).

become the only available 'ideological terrain' on which to debate the rote and rights of women

(Kandiyoti 1989 at p. 5). In the view of many women working to uphold or promote women's rights

in the Muslim world simplypy positing or refuting the inherently patriarchal nature of Islam can no

longer serve any useful analytical or political goal (Kandiyoti 1989 at 8) The call for the granting

of basic rights of choice to women and the methods used to secure them must come from within -

from within the country itself and from within the terms that define that country's cultural reality

(see Shabecd 1986; Kandiyoti 1989 Hassan 1989: An-Na'im 1987).

23 The P ccf T-aditon in Nok-WsLamic Cuntries in Asia and the Near East

In every country in Asia and the Near East regions, the movement to grant women legal

recognition as full adults entitled to control and choice in their lives, runs up against deeply-ingrained

traditions that subjugate women within the home and within the society at large. In Islamic countries

those traditions are expressed in legal norms, and adherence to those norms has, in turn, become

virtually synonymous with the practice of the religion itself In other countries in these regions where

the majority religion is Buddhism (Thailand Sri Lanka) or Hinduism (India) or Catholicism

(Philippines), religious law per se has played a far less important role in defining a woman's place in

the family and in public lite. But even there, custom and tradition, although not always expressed

in formal legal terms, remain a powerful force in buttressing patriarchal social structures. Thus legal

changes that would grant women a full measure of individual autonomy are still resisted with the

assertion that such changes would clash with a traditional way of life, even when that way of life is

not defined by adherence to law, as in Islam.

For A.LD. the implications are in many ways the same whether the subjugation of women

is legitimate by law or by a more diffuse custom and tradition. Granting women full legal

reco-.tion can not be regarded as merely a matter of "modernizing" the laws or the legal system -

as a straightforward task requiring just a touch of quality "technical assistance." Such change often

challenges deeply-rooted customs that have played a significant role in structuring the society's course

of development and in its interaction with the West Consequently, as in Islamic societies, only a

movement that grows from within, that has the support of a wide cross-section of women, that is

expressed in terms and concepts that are meaningful in the society and that has due regard for the

historical and cultural context of the laws and customs that now govern family relations, has the hope

of effecting real change in the lives of women. (See e.g., Gooneskeri 1986, and Coomaraswamy 1986

on stra-te o for improving women's legal status in Sri Lanka; Bennett 1983 in NepaL)

3. THE IMPORTANCE OF WOMAN'S LEGAL STATUS TO OMKOS

If the foregoing description of the power of traditional law and custom makes the advocacy

of women's legal rights by outside donors such as A.ID. daunting, it is not meant to deflect them

from the task. Women's autonomy the ability to make choices, to take control over, the

circumstances of their own lives matters. It matters because universal principles of human rights

and human dignity that affirm such autonomy extend to women, as well as men, and have value as

a fundamental characteristic of the quality of human iife. And it matters because women's autonomy

is a critical ingredient in the drive for economic and social development around the world.

The low legal status that characterizes the position of women throughout the ANE region not

only denies those women the benefits of development, but it also retards the growth of the society

as a whole. In many respects, the legally-sanctioned exclusion of women from social and economic

institutions and opportunities has obvious ramifications: it deprives the country of fully one-half of

the energy, talents and potential of its population. Yet even when a country is thriving economically,

the failure to accord women the kind of control and choice over their lives that is taken for granted

by men, has other, more subtle though no less serious implications for the welfare of society as

a whole.

A recent study by the Australian demographer, John Caldwel. entitled "Routes to Low

Mortality," illustrates the point (Caldwell 1986). Caldwell ranked 99 Third World countries by per

capital GNP for the year 1982. He then ranked these same countries by

their infant mortality levels (infant mortality being generally accepted as the best single indicator of

a country's health status). Those countries whose ranking on infant mortality was 25 or more places

above their ranking by GNP were termed "superior health achievers." Those countries whose ranking

on infant mortality was 25 or more places below their GNP ranking were termed "poor health

achievers." Caldwell's list of superior and poor health achievers, reproduced on the next page, is

instructive: eight of the 11 poor health achievers are countries in the A.LD.'s Near East subregion:

four of the 12 superior health achievers are in A.LD.'s Asia subregions.

Cald--w then set out to examine why countries placed as they did. He looked at a number

of basic characteristics of the countries in question including literacy, education, family planning,

health care system, culture, and political history and then focused in on three superior health

achievers: Sri Lanka, Costa Rica. and the Indian state of Kerala.

He concludes that two critical factors explain what makes countries both superior and poor

health achievers: (1) female autonomy, and (2) the equitable distribution of social resources and

services. Caldwell is careful to point out that female autonomy means more than just female

education or female status (in the sense of respect or reverence for women); female autonomy means

the right and confidence to make decisions, to take control over the conditions of one's life and that

of one's children. Caldwell postulates that where women's autonomy is secure, women perform better

in all their roles as mothers, as keepers of the home, as economic providers, as participants in the

life of the community.

Table I Exrc ional morality levels reiauve to income levels for 99 Third World Counries. 1982: Ranlng separated
by at lest 25 places as measured by nfant mortality ranking

Manrtai Ranamc t Exp Ruakg of
Per "aN .e rnf'nm umaluy of lie ai We espMsscr
GNP (per 1000 reaue io bhub rtame to
Country (S) Irve bna) ianoe 00s) in

PamA A S pirtr th ea wer

(Kante)
Si Lanaa
Chin
Burms

Indu
ZaAt

Kgm
Cosaa Rica
Ghaa
7haila

Unwated a zjrags

Pa"t B Powr ebrilh bahn e

Saudi Anrtia*
Omraen*

Agent

IvorrCat
YC=.= CA-r

Siena Lae?

unwatd avrags
AUoms
*Oil prue
NCoola producer

(160-r70)
320
310
190
1330
260
190
280
39"
1.430
360
790

(+75)
+62
+46
+39
+37
+36
+31
431
+31
+27
+26
+25

(+73)
+41
+61
+38
+32
+33
+23
+22
+22
+29
.19
+14

6.090
L6.000
6.465
U810
-350
6.465
500W
870
950
490
390

4.462
7.647
640

SOUARCES Word BSant 1984 and Krbsna 1985.

-3/-

The recognition that women's contribution to the society's overall welfare extends well beyond

their biological role in childbearing and that their autonomy is a key determinant of how effectively

they manage their many tasks, has significant implications for the movement to improve women's legal

status. At one level it means that some particular laws may be more significant in inhibiting women's

autonomy than others. For example, laws requiring a husband's or guardian's permission for a woman

to obtain contraceptives have been shown to have a substantial impact in some countries on the

number of women who use contraceptives (Cook and Maine 1985). The ability to control the

number and spacing of their children, in turn. has obvious implications for women's ability to control

the many other aspects of their lives that influence a society's development. ThIu. measured by the

extent to which they promote women's autonomy, challenges to such "spousal veto" aws may be more

effective than challenges to some other specific laws.

At a deeper level, the very process by which women come to understand and analyze their

legal situation, and then develop and implement strategies to change it, can itself be an empowering

one. Thus. while it is surely important for all A.D. officials to be aware of particular laws that might

influence women's participation in specific AI.D. programs, the broader question of women's legal

status is best addressed by starting with those who feel its effects most keenly: the omen themselves.

It is by encouraging women in all walks of life to actively confront their own legal situation in terms

and by means that make sense for them, that A.LD. can best help remove the legal barriers that

cripple a country's development by denying women a full and meaningful role in building their own

communities' future.

4. PROGRAMS TO IMPROVE WOMEN'S LEGAL STATUS AND
RECOMMENDATIONS FOR A.LD.

The American approach to law especially the American lawyer's approach to law is a

highly utilitarian one. Particularly when it comes to questions of individual rights, we tend to think

of the law as one of the truly powerful tools for producing social change, as indeed it has been in our

own history. In the United States, Supreme Court rulings or new legislation can have pervasive, even

revolutionary, consequences for individuals' life circumstances. Consequently, the American lawyer's

first instinct about bow to initiate social change would be to find the perfect test case to nurse along

up through the court system or to draft and get enacted a local version of our Title VII employment

discrimination law. But this utilitarian approach is built on a series of assumptions about law and

its efficacy that may not apply in the slightest to questions about women and law in many countries

in Asia and the Near East

Thus. in considering how A.D. should approach questions of women's legal status, the first

step may be to recognize our own implicit assumptions about the role of law in producing social

change, and then to set them aside and look with open eyes at how law actually operates in the

particular community where A.ID. is working. To do that, it is useful to return to the framework

set out in Part 1. A legal problem and the potential range of solutions can best be analyzed by

examining its three separate components substantive, structural and culturaL Where the legal

problem is a very precise one that arises in the context of a specific A.D. program for example,

in a program to encourage entrepreneurship, a bank refuses to etend credit to women unless they

have their husbands' permission the three-part analysis should clarify the substantive legal basis for

or against the bank's action, as well as the possible approaches to changing the bank's policy, working

either inside or outside the formal legal system.

But if the question is what steps A.D. should take to improve the legal status of women

generally, then this three-pronged analysis will not be enough because it does not address this

logically prior question: In the huge range of law-based rules and policies that affect women, what

really matters most in constricting control over the circumstances of their lives and so what issues

most deserve close attention? That question can not be answered by reading government reports on

the status of women under the country's law codes, nor even by talking to the judges who implement

the law or to the lawyers who manipulate it for a living. The question can only be answered by

consciously working to understand women's situation from women's point of view; and to do that we

mast start by talking to the women wbose lives are shaped, directly or indirectly, by the legal system.

In almost all the countries in Asia and the Near East where A-LD. operates, there are

women's organizations working at all levels of society to promote women's rights. Many of these

organizations struggle continually with the profound issues presented by religiously-derived personal

status laws that reinforce the social structures that deprive women of their autonomy, but at the same

time resonate with layers of meaning for both men and women in their societies. These organizations

have also learned much about how internationally-recognized principles of women's human rights

intersect with the legal cultures of their countries. They have wrestled with strategic problems of how

to maneuver through the structural obstacles that face any movement working for legal change.

From their experiences, it is clear that no one program, by itself, will solve the problems of

women's ambiguous relationship with the law; but multiple programs operating simultaneously at

several levels of society can have a significant impact. To illustrate the point: successful efforts to

enact a new law guaranteeing equal pay or non-discrimination in employment will have little effect

unless judges or non-government agencies are willing to enforce it; efforts to sensitize judges or other

government officials to their obligation to enforce such laws will have little impact unless women are

34

aware of their rights and stand up to assert them. On the other hand, simply making women aware

of their rights is useless unless they have access to enforcement mechanisms; and helping women

understand how some provisions in the law oppress them becomes a frustrating, largely academic

exercise unless the law also contains broadly worded guarantees of rights for women that can be used

to strike specific discriminatory provisions.

Dedicated and resourceful women's groups throughout Asia and the Near East have found

ways to address many of these problems simultaneously. The concept that underlies some of the most

successful initiatives is legal literacy." In its broadest sense, being "literate' about law entails (1)

understanding how the substantive law, directly and indirectly, influences people's lives: and (2)

understanding how the legal system can be mobilized to improve the conditions of their lives.

Often the term "legal literacy' refers to program targeted to indigent people at the grassroots

leveL But, when it comes to the relationship between women and law, illiteracy plagues men and

women in every quadrant of social life from the highest reaches of government, to the media, the bar,

the health care system, the religious establishment, business, and organized labor, and for most men

and women who participate-in those areas of public life. legal illiteracy also plagues their relationships

in their homes and among the members of their families. Not until men and women in every walk

of life come to understand how the denial of legal rights to women, both in the home and in the

society at large, undercuts their country's development, will substantial, broad-based progress be

made. The need to address legal literacy efforts to all segments of the population was recently

emphasized in a pamphlet entitled "Guidelines on Upgrading the Legal Status of Women" published

by the United Nations Economic and Social Commission for Asia and the Pacific (ESCAP). ESCAP

sponsored legal literacy programs in Bangladesh, Indonesia, the Philippines and Sri Lanka and then

drew lessons from their experiences. Among the key points ESCAP makes is that legal literacy

programs designed to improve the status of poor women will be most effective if they are directed

to many other groups in society as well as to the women themselves

These groups include teachers journalists, activists, social workers, and member of
the legal profession, among others. Thee groups need orientation about the law,
albeit with a different thrust, if women especially poor and needy women, the main
target group are to be able to avail themselves of their rights (ESCAP 1989 at p.
2).

Significantly, the most effective legal literacy programs were found to be community based programs

that involve both men and women.

Many such lessons about how to organize legal literacy drives apply cross-culturally. But the

particular strategies used to promote legal literacy at various levels of society will clearly differ from

culture to culture. Thus, for example, a prerequisite for any kind of legal literacy program in Islamic

countries may be the sort of academic work done by groups such as Women Living Under Muslim

Laws, an organization based in France and comprised of women from Islamic countries around the

world, or Shirkat Gah, a women's resource center in Pakistan. Many women in these organizations

are committed to promoting women's rights within an Islamic context, and on terms that can generate

wide support in their societies. Their research and writing on the difficult issues that surround legal

change within Islam and in Islamic states forms a solid basis for the groups actively advocating law

reform at the national level, such as the grassroots legal literacy programs conducted by the

Bangladesh Rural Advancement Committee in Bangladesh (ESCAP 1989).

Some successful projects in other parts of the regions combine traditional legal services for

women with creative legal literacy programs addressed to a more general audience. For example, the

Women's Legal Services Project (WLSP) in Nepal has provided traditional legal services to Nepalese

women for over 25 years. Traditional legal services programs offer professional legal counselling and

litigation assistance to individual women on a case-by-case basis. In the period 1982-1989 alone,

WLSP represented over 2000 women, helping them draft some 1900 petitions to the Nepal Royal

Palace and 495 applications to administrative and semi-judicial offices. WSP uses litigation only as

a last resort; thus in this seven-year period it was able to resolve some 290 disputes between private

parties without going to court, and to resolve another 140 cases after formally filing lawsuits (Singh

1990). But recognizing the limitations of such traditional programs that deal with legal problems ouly

on a case-by-case basis, WLSP has launched legal literacy programs that include radio call-in shows,

mass media campaigns, distribution of simple. easy-to-read booklets, community-based classes and

workshops, and training of paralegals who work in their communities on a model akin to barefoot

doctors.

Another effective strategy for providing legal services to women has been to set up law clinics

in affiliation with other kinds of organizations that service women. So, for example, legal services and

legal literacy efforts affiliated with family planning organizations have been successfully mounted in

countries as diverse as Indonesia and Colombia, South America.

Finally, women's organizations have been extremely successful in mobilizing women around

specific legal issues that have arisen in their individual communities. For example, although women

had been selling vegetables in the main fruit and vegetable market in Ahmedabad, India for over 50

years, they were routinely denied licenses to do so on a legal basis. They were subject to harassment

from law enforcement authorities, including substantial fines and regular demands for bribes resulting

in serious economic harm and its attendant consequences in the lives of the women and their families.

The Self-Employed Women's Association (SEWA), an organization with over 20,000 members around

India. organized the women vegetable vendors in Ahmedabad and eventually sued the municipality

on their behalf The Supreme Court ultimately ruled that the denial of licenses to sell vegetables

violated Ardcle 19(l)(g) of the Indian constitution by denying the women their constitutionally

protected right to carry on any occupation, trade, or profession. With this ruling, more than 300

women were finally granted licenses and the right to conduct their businesses (Jethmelani 1986 and

Bhatt 1986).

In other instances, a single legal issue of great importance to a community has presented an

opportunity for women's groups to employ legal literacy strategies that have effectively changed the

way that women in the community think about themselves, and their ability both to challenge

oppressive laws and to affirmatively use legal mechanisms to assert their interests. In 1984, in a poor

fishing village in Toril, Davao City in the Philippines, a typhoon demolished the homes of a group

of women living along the shoreline. The women moved to higher ground and built shanties on the

only available land. After being arrested and jailed as squatters, the government certified the women

as victims of the typhoon. and they were released. It was then discovered that a banking corporation

owned the land they now live on. The bank ordered the women to vacate immediately, but there was

nowhere else for them to go. The women met together and sought help from a community

development center which ultimately put them in touch with PILIPINA Legal Resources Center.

PILIPINA provided not just lawyers to represent the women's interests, but also a staff that, with the

help of a community organizer and support from a private foundation, conducted a community-based

legal literacy program. Ultimately, by coming to an understanding of the law and how it related to

their situation, the women of Lrzada, Toril devised a strategy to buy the land from the bank. As of

the report of these activities, negotiations with the bank were underway and lawyers from PIUIPINA

described substantial positive changes in the way that the women were able to analyze legal, social

and political forces that shaped their predicament and to organize themselves to take control over

the circumstances of their lives (Quintillan 1986).

Organizations and programs such as the ones described above offer A.LD. the most promising

routes for promoting women's autonomy as part of its overall development strategy. Women's

research groups such as Shirkat Gah in Pakistan provide the culturally-specific theoretical rationale

and empirical data on which law reform efforts and legal literacy campaigns can be based.

Organizations that focus on changing substantive laws or on modifying the judicial system take

another essential step in advancing the legal status of women.

But perhaps the most significant impact is made by the groups who conduct legal literacy and

legal services programs in the community. By starting in communication with the women themselves,

these programs can focus on the issues that really make a difference in women's lives. By involving

women in the analysis of their situation and the development of strategies, the process itself becomes

potentially empowering. Finally, because they work from within the cultural reality of the women

who autonomy they seek to promote, such programs will ultimately be best positioned to initiate the

kind of broad-based legal changes that can truly influence a country's course of development

It is with women's organizations such as these that A.LD. ought to begin to explore what role

it can play in the crucial drive to make choice a meaningful concept in every man and woman's life.

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