This paper argues that if we can gain a better understanding of the possibilities (and limitations) of the individual's strategies of renegotiating inequalities in societies, communities and households we will be better equipped to address complex factors affecting social justice outcomes. There is no quick fix to inequality and the pursuit of social justice is an ongoing process that demands structural, institutional, political, economic and social change. However, the daily process of renegotiations of power relations by marginalised groups and individuals has a vital role to play in the success or failure of social justice initiatives. In this paper I use the concepts of legal pluralism and power relations to discuss the ways in which the individual is constantly negotiating power. In understanding this process we can better facilitate the inherent struggle by the underprivileged to reduce inequality.
Santal communities; social justice; individual strategies; modes of power; modes of resistance; legal pluralism; marginalisation;
Why do the most underprivileged consistently find themselves in positions of subordination despite the efforts of law and policy to ameliorate their situation? This question provides an underlying frustration for academics and activists working in the fields of human rights and social justice. These frustrations can be read by some as indicators that the subjugated are failing to help themselves, are beyond help or inert with no inherent capacity for resistance. Studies of subaltern resistance such as the Subaltern Studies Series (2) and James Scott's (1985) work in Malaysia have helped to promote a different picture of a fighting, conscious subordinate. (3) But this leaves us back at the start: why, when there are laws in place to assist and an inherent will to resist, do poverty, inequality and injustice persist?
In this paper I discuss the ways in which inequality is maintained through power relations in multiple legal orders and how, within each legal order individuals engage in strategies of struggle to resist disadvantages in a number of ways. In order to understand how, when and why individuals resist we need to understand how the inequalities are formed. My research has led to the conclusion that we can distinguish three forms of relations of inequality. I call these relations of domination. But power relations do not only encompass forces of domination, they have at their core a free subject and with that the possibility of resistance. I identify three forms of resistance that correspond loosely to different relations of domination. I show how these relations of domination and modes of resistance function at the normative levels of the family, village, and state, and give examples of the different forms of resistance used.
The arguments put forward in this paper were developed as part of ethnographic research carried out on the Santal, an adivasi/tribal people in Jharkhand, India and Rajshahi, Bangladesh. The research involved five fieldwork trips between 2002-2004 using sociological and anthropological methodologies to collect qualitative and quantitative data from Santal villagers, judiciary, academics and activists, and primary materials from government departments and national libraries. The longest field trip involved five months living in four villages, two in each country, carrying out structured interviews in Santali and using participant observation and focus groups to collect additional data. (4)
I will begin by introducing the Santal and the three concepts on which my findings are based (power, resistance and legal pluralism) before discussing the forms that relations of inequality and resistance takes in the context of Santal village life.
The Santal are an adivasi (indigenous, tribal) (5) people living predominantly in India, Bangladesh and Nepal. They constitute the largest Scheduled Tribe (6) in East India (inhabiting West Bengal, Tripura, northern Orissa, Bihar, Jharkhand and Assam) numbering just under five million, (7) and one of the largest in India. (8) They are the second largest tribe in Bangladesh--numbering over 200,000--predominantly living in the north-west near the Indian border. (9) They are one of the most illiterate tribes (10) in both countries. The majority of Santal still live in rural areas where they earn their living as cultivators, sometimes with small land holdings (although usually not enough to live off) and mostly dependant on day labour work or sharecropping on others' land. In India where the land is less fertile, many migrate seasonally to get work.
The Santal live in patriarchal communities with village based governance structures. A village headman, Manjhi, is supported by other village officers including a Paranik (deputy), Godet (assistant), Naike (religious leader) and Jog Manjhi (upholder of morals of the youth). These officers oversee ceremonies, give guidance and support to villagers and administer the Santal laws on trespass, marriage, divorce, theft etc. A group of villages (known as a bungalow) is overseen by a Parganait. The posts are traditionally hereditary (descendents of the original founders of the village), (11) with an opportunity for villagers to replace a post holder if an existing officer becomes ill or unfit for the post at the annual Mag festival--in the villages where I stayed democracy was replacing the traditional system and the Manjhi and others had been voted in as the best people for the posts due to their knowledge of customs, maturity and fairness in dealing with disputes, without reference to their heritage.
There is a three tier structure of customary courts beginning with the village court (a gathering of all male head of households, presided over by the Manjhi), the more hor (meeting of five Manjhi's of the area, presided over by a Parganait), and the lo bir (traditionally held during the annual hunt and comprising all male heads of households of a large number of villages). In each court the outcome is said to be a collective decision of all those present--the Manjhi or Parganait listens to the discussion and summarises the major consensus by way of conclusion. Outcomes generally aim to correct the wrong that has occurred through compensation or to punish the perpetrator with a fine (this may be a meal or drink given to those present at the gathering).
Santal law governs not only disputes, but also important social aspects of life--marriage, birth, death, illness. Adherence to the law is not simply a matter of avoiding punishment; it is a sign of commitment to the village community and to the hierarchy of the village officers and elders. Within the Santal village each household has a duty to foster this sense of community. However, despite this, the household unit remains largely autonomous of the community. Privacy is respected and the village will not intervene in a household dispute unless they are called to intervene by a family member. (12) The household has its own structure and codes of behaviour, which are semi-autonomous of the village legal order.
State law forms another level of semi-autonomous legal order to which the Santal are subject. Although in both countries the Santal are exempt from some aspects of state law where their own laws take priority (family law: marriage, divorce, inheritance), they are subject to criminal law and most civil law. While for some the state law is an unknown entity and is only engaged when a crime has been committed--the law forcing itself upon them--for others, as we will see, it is an additional tool for getting a desired outcome, especially in land dispute cases.
Below I discuss further the dynamics of inequality and resistance within the family, village and state. First I want to introduce the concepts of power, resistance and legal pluralism, which are key to my argument.
Power, resistance and legal pluralism
3.1 Power and the formation of inequality
Power or rather power relations, are relations of inequality which exist at all levels of society and which direct and govern our actions. They work through cultures and customs and disciplinary technologies (Foucault, M, 1977) that shape the way we think, perceive, act and react.
We tend to think of our actions as being governed by written laws but Gramsci (Gramsci, A, 1971b, p 242) tells us law, as a concept, includes things we consider 'legally neutral' and belonging to the domain of civil society. (13) Civil society operates 'without 'sanction' or compulsory 'obligations', but nevertheless exerts a collective pressure and obtains objective results in the form of an evolution of customs, ways of thinking and acting, morality, etc'.
Foucault's work on disciplinary power helps us to understand how individuals become the subjects and objects of this collective pressure. In Discipline and Punish, Foucault examines the process of change in social control from visible violent public floggings and executions by the monarch in the middle-ages to the more invisible disciplinary mechanisms used in the eighteenth and nineteenth century. Disciplinary power depended not on direct imposition of control from above, but collective control at the most basic level of society, between individuals. Normalisation of behaviour took place in schools, hospitals and workplaces through surveillance, subtle forms of punishment and examination. Surveillance facilitated coercion through observation of the individual and was enforced by individuals on each other. The layout of urban development, construction of working-class housing estates, hospitals, asylums, prisons and schools was based on the layout of military camps where tents were arranged so that there was a 'network of gazes that supervised one another' (Foucault, M, 1977, p 171). In these spaces the combination of the individual being potentially visible and the viewer potentially invisible lead the...