IN THE SHADOW OF MARRIAGE: GENDER AND
JUSTICE IN AN AFRICAN COMMUNITY. Anne
M.O. Griffiths. Chicago: University
of Chicago Press, 1997. Pp. 310.$18.95 paper, $ 50.00 cloth. ©
The "African community" of
Griffiths' title is the Kwena, a Tswana group who live in Kweneng, literally
the place or home of the Kwena, now a constituent district of Botswana.
The study focuses on the relationship between law and gender with particular
reference to marriage and a range of other relationships between women
and men in Kweneng (p.1). This triad of law, marriage and gender actually
consists of two inter-connected strings of relationships: one involving
gender, male-female partnerships and "power"; the other linking
customary and statutory law.
Women tend to be disadvantaged in their command over both material and
symbolic resources. In turn, women's access to justice, whether through
customary courts or through the formal courts, is necessarily mediated
by this disadvantage. Yet women are a differentiated group, reflecting
the wide inequality in Botswana's society. Hence, the study takes into
account two major categories of differentiation: gender and class. The
dispute cases, which form the main empirical basis of the book's analysis,
are selected to display these sorts of differences. Although the resulting
matrix appears complex, the study is presented and argued with a crystalline
clarity. The detailed case materials are eloquently presented and the
contextual information on socio-cultual organization well covered. Griffith's
theoretical points are clearly argued and the whole study is written
in an accessible style. For all these reasons, the book is a welcome
addition for upper-level undergraduate and graduate courses in the anthropology
of law, kinship, and gender as well as in those of other disciplines
(eg. legal studies, family law, gender studies, African studies).
Research for the study was conducted between 1981 and 1989. The author,
assisted by her "guide and mentor", Mr Masimega, attended
disputes in the various Kwena customary courts and consulted a ten year
set of records from the magistrate's (DC) court in Kweneng. They also
attended a few cases in the high court. In addition, interviews with
many of the participants in the disputes and some of the judges were
carried out. Griffiths and Masimega also collected detailed life histories
in Mosotho ward (kgotla), which effectively enhance and broaden the
descriptions in the existing literature on gender and legal theory in
Botswana. The first three chapters examine the general interplay of
gender, marriage, and legal practice; the "gendered dynamics of
households in managing resources, procreation and marriage"; and
the dynamics of social differentiation. The next four chapters comprise
the bulk of the book and present detailed case studies. The final chapter
offers a closing argument on "reconfiguring law". The reconfiguration
proposed by Griffiths holds that law is necessarily embedded in particular
social, cultural and political matrices. Throughout the study the author
engages the "legal centralist" or "formalist" model
of law. She instead proposes a "strong form of legal pluralism"
that emphasizes the social grounding of legal practice.
In each of the central chapters, the author demonstrates how access
to various legal arenas and the eventual outcomes depend on the participants'
social situation. Different ideas about gender-appropriate behavior
in various situations and relations between participants and judges
can influence rulings. Legal norms, arguments and judgments cannot be
understood without reference to the social matrix in which they occur.
Again and again, the author argues that "the kinds of claims made
by a legal centralist model of law with respect to autonomy ... from
ordinary social processes cannot be sustained. Nor can such a model's
view of legal pluralism, as endorsing separate and parallel spheres
of law ... be upheld" (p. 133; cf. 157, 182, 183, 209). This "strong"
form of legal pluralism, which insists on the "mutually constitutive
nature" of law and society, contrasts greatly with the "weak"
form that merely posits a co-existence of "parallel systems"
of law (p. 35). Responding to criticism that this "strong"
form of legal pluralism sees the law everywhere, Griffiths maintains
a distinction between law and nonlaw with respect to particular sources
and institutions. However, she insists that the distinction between
them is not impermeable but socially constituted (p. 213).
Overall, the book has a powerful effect. The detailed presentation and
analysis of dispute cases skilfully show how deeply gendered the processes
of justice are. Griffiths uses the recorded court discussions, interviews
with participants, and detailed life histories to engage the literature
on legal studies, legal anthropology, and gender studies. However, the
author claims too great a difference between her study and earlier approaches
which also aimed to use disputes as "moments of a certain kind
of public visibility embedded in the context of ongoing social relations"
(p. 32). The main drawback of dispute-focused studies is the lack of
actually observed social life. Everyday interactions between women and
men in different partnerships, families, and social status groups influence
the particular ways in which their disputes take shape. Some quarrels
are resolved, others reemerge chronically, and yet others are transformed
into disputes over the meanings of "marriage" or "neglect".
This type of ethnographic study was not carried out and I am not really
suggesting that the author should have. Griffiths' study is excellent
on its own terms but the post hoc character of dispute cases makes one
wish for an account that also described their genesis. Still, as a study
that artfully displays the social embeddedness of customary and statutory
court cases, this book is one of the best available.
Pauline E. Peters
Harvard Institute for International Development
Harvard University
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