Imagining Women's 'Legal World': Towards a Feminist Theory of Legal Pluralism in Africa
| Author | Ambreena S Manji |
| DOI | 10.1177/a010357 |
| Published date | 01 December 1999 |
| Date | 01 December 1999 |
| Subject Matter | Articles |
IMAGINING WOMEN’S‘LEGAL
WORLD’: TOWARDS A FEMINIST
THEORY OF LEGAL PLURALISM
IN AFRICA
AMBREENA S. MANJI
University of Keele, UK
ABSTRACT
This article argues that most feminist legal theory has been located within a dominant
and phallocentric legal centralist paradigm and that this has hindered feminism’s
engagement with legal pluralism. I will argue that theoretical work which privileges
state law can at best furnish us with only partial accounts of women’s experiences of
law. Articulating a feminine view of the (legal) world requires an engagement with
legal pluralism.
The article suggests that women’s experiences of state law in the third world differ
from those of men: the attitude of the state towards women has been at best ambiva-
lent and at worst physically and symbolically coercive. Theoretical work on women
and law must recognise the reality of women’s experiences of law. Drawing on a range
of historical and political science writing, the article attempts to render a more accu-
rate picture of women’s ‘legal world’.
INTRODUCTION
When the men instituted the law to forbid us to go abroad to find work to help
us and our parents, the law was brought to you and to our rulers to be accepted.
But we were not called to any meeting to be asked why we go abroad rather
than staying at home . . . We hear our opponents saying we go because of prosti-
tution. This word is an insult to us. If we are called prostitutes, can a woman
make herself a prostitute on her own? First of all, is not a prostitute the man
who gave us the money?1
THE FRENCH PSYCHOANALYTIC theorist Cixous has argued in
relation to that discipline that it ‘reproduces the male view, of which it
is one of the effects’ (Cixous, 1981: 251). Scrutinising notions of power
SOCIAL &LEGAL STUDIES 0964 6639 (199912) 8:4 Copyright © 1999
SAGE Publications, London, Thousand Oaks, CA and New Delhi,
Vol. 8(4), 435–455; 010357
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and disorder in her work, Cixous has suggested that psychoanalysis has fur-
nished only partial accounts of women’s subjectivity and sexuality and that the
task facing feminism is the exploration of alternatives, in spite of the ‘disorder’
this will entail. This article will draw on the idea of partiality and explore how
law – in particular the dominant legal centralist paradigm – both reproduces
the male view and is one of it effects. In offering an alternative, I draw on his-
torical, legal and political scientific accounts in order to depict a more accurate
picture of women’s ‘legal world’. This paper contradicts the theoretical
outlook of legal centralism and in so doing sows the seeds of ‘disorder’ by
admitting into the theorisation the existence of an ‘infinite range of normative
possibilities, [a] diversity of disputing processes ... [and] intricate connections
between everyday behaviour and the living law’ (Arthurs, 1985: ix).
It does this in two ways. First, it introduces two paradigms of law,
legal centralism and legal pluralism, and shows how most feminist legal
theory has been located within the dominant legal centralist paradigm. This,
it is argued, has hindered feminism’s engagement with legal pluralism. It is
shown that whilst feminist theory has been engaged in ‘an anti-sexist project,
which involves challenging and deconstructing phallocentric discourses’
(Grosz, 1986: 190), the phallocentric theoretical system of legal centralism –
and its privileging of state law – has been left untouched. In other words, I
move beyond MacKinnon’s assertion that ‘[t]he state is male in the feminist
sense’ (MacKinnon, 1989: 129) to argue that legal centralist discourse is itself
phallocentric. MacKinnon’s aim, which is the inclusion of the feminist point
of view into the state (Cornell, 1990), remains within that phallocentric dis-
course. I will argue instead that articulating a feminine view of the (legal)
world requires an engagement with legal pluralism.
Second, this article proposes that legal pluralist analyses of women’s posi-
tion in the third world might profitably take as a starting point a substantial
body of writing on the nature and function of the state and of state law. Politi-
cal science has advanced our understanding of the state and of class for-
mation. These insights are deployed here in order to suggest that women’s
experiences of state law in the third world differ from those of men: the atti-
tude of the state towards women has been at best ambivalent and at worst
physically and symbolically coercive. Theoretical work on women and law
must recognise the reality of women’s experiences of law.2It is argued that
such a recognition strengthens the case for employing a legal pluralist para-
digm. Ironically, then, this chapter ‘brings the state back in’ (Evans et al.,
1985) in order to expose the limits of its power.3
TWO PARADIGMS OF LAW: LEGAL CENTRALISM AND LEGAL
PLURALISM
The object of the following discussion is not to set out in detail the charac-
teristics of the legal centralist and legal pluralist paradigms. Rather it is to
explore the main contours of the two approaches, paying particular attention
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