Sania Ismailee: 'Assessing transformative accommodation for gender-justice in family law: Dissecting reversal of jurisdiction as an option'
In this presentation, I argue that the problem of jurisdictional autonomy is at the heart of resolving conflicts between minority communities’ religious freedom to practice their family laws and gender justice. Jurisdictional autonomy is the autonomy to govern certain spheres of life in accordance with certain norms one upholds. Ayelet Shachar’s Multicultural Jurisdictions (2004) aptly proposes a solution to reconcile inequality among communities and inequality within communities. She suggests focusing on institutional arrangements to resolve the problem of accommodating minority practices by simultaneously improving the situation of minorities within minorities. She discusses family law as a crucial site to elucidate her theory. I engage with her joint-governance model of transformative accommodation. I ask the question to what extent Shachar’s transformative accommodation (TA) offers a viable solution to balance gender-justice with religious freedom in a diverse family law scenario? Recent anthropological literature on family laws in India has increasingly focused on religious non-state actors’ role in delivering gender-justice (Lemons 2021, Redding 2020, Solanki 2015, Jones 2008, Tschalear 2016, Herklotz 2017, Dutta 2021). Thus, it becomes crucial to normatively explore their relationship with the state in terms of jurisdictional autonomy. My specific point of engagement with Shachar’s TA is what she calls the “reversal options” in “clearly delineated choice options.” She argues that this fundamental principle of TA is crucial for ensuring gender-justice without compromising on religious autonomy. I highlight three problematic underlying assumptions with this option. Firstly, connecting the survival of a community with the opting-in of its jurisdiction. Secondly, a simplistic understanding of opting-out in joint-governance. Thirdly, unconsciously endorsing a is the liberal majority and illiberal minority binary, a version of “either-or binary” that Shachar claims to avoid. Drawing from Farrah Ahmed’s work on religious alternative dispute resolution (ADRs), I propose a weaker version of TA as the answer to the problem of jurisdictional autonomy in resolving conflicts between gender justice and religious freedom in family law.
