Globally, women's movements share the twin concerns of equality within the family and freedom from domestic violence. The following questions conjoin and animate these debates: Given that violence against women is a global phenomenon, why are some states more effective at controlling domestic violence than others? What is the correlation between inequality encoded in family laws and the rate of violence against women in society? Are legally plural states more likely to demonstrate a higher degree of institutionalized inequality and gender-based violence within the family? The analytical peg for Hudson, Bowen, and Nielsen (Reference Hudson, Bowen and Nielsen2012) is the feminist evolutionary analytic approach (FEAA) that explains the almost universal prevalence of male dominance among humans during the course of formation of societies. It suggests that violence against women is greater in legal systems that design family law to maximize men's rights.
If, following the authors, we were to leave aside poststructuralist and feminist psychoanalytic approaches but consider social constructivism as a rival theory, then it could be argued that gender inequality and male power are intrinsic to violence against women in patriarchal societies and that biological differences are irrelevant. The counterfactual for social constructivists is that domestic violence would be eradicated under conditions of gender neutrality and the dismantling of patriarchy. In contrast, the FEAA is more ambiguous: It posits that male aggression is not biologically rooted but that it arises to ensure male reproductive interests and that change is due to interactions among epigenetic, genetic, and cultural factors. The FEAA, however, is pre-empirical and conceptual—it does not specify modes of interorganic interactions or methods to measure the impact of social change on biological organisms as they coevolve. It also disregards a possibility that social reforms could have unintended consequences at the biosocial interface—reproductive access-induced male aggression, agentic and resilient in the face of societal change, might hinder the complete dismantling of gender inequality and patriarchy. This would pose a challenge for feminism itself, which is both a diagnostic as well as a transformative project that identifies conditions of patriarchy and seeks to eradicate it. As such, any possibility of the continuation of domestic violence in the absence of gender hierarchy calls into question the very idea of feminism.
In the face of this question, FEAA theorists reply that society conditions biological phenotypes and that these, in turn, affect genetic make-up across generations; the overhauling of patriarchy would therefore render some biological traits mutable across generations. But given that both social constructivists and FEAA proponents consider social change as a necessary condition to end domestic violence, it is unclear how evolutionary biology, even if it steers clear of essentialism, is a resource for feminists in explaining and challenging domestic violence. To elaborate, the practice of matriliny among the Nairs in precolonial South Asia organized descent from mother to daughter and recognized it in religio-customary laws. Their domicile arrangements consisted of mothers, daughters, sons, and brothers living together on common property, and therefore it can be assumed that domestic violence, as contemporarily defined, was not prevalent and that the phenotypic adaptations among the Nairs would have affected the culture of subsequent generations. Standardized laws encoding patriliny in colonial and postcolonial India, however, were applied to regulate marriage and inheritance among the Nairs, which led to the gradual decline of matriliny. The interplay between biosocial factors presumably altered biocultural values among the Nairs, but the FEAA does not offer additional insights.
The FEAA's analytical usefulness, according to the authors, is that it offers a theory of ultimate cause in explaining the origin and prevalence of patriarchy; its weakness is that it is based on reductionism and overgeneralizations. The authors argue that “the first conflict among humans was the clash of reproductive interests between men and women” (Hudson, Bowen, and Nielsen Reference Hudson, Bowen and Nielsen2012, 465), even in the hunting-gathering stage, which became more widespread during the age of agriculture, where systems such as patrilocality weakened collective female resistance and enabled collusive economic dominance of men, who later consolidated their control over women's sexuality and reproduction by developing systems of family and law.
This monocausal theory of the FEAA, rooted in sexual dimorphism and based on biologically informed “facts” of reproductive competition, is mapped and transposed onto sociocultural practices of descent. In India, however, the Hijra—sometimes man, sometimes woman—challenge theories of kinship grounded in sexual and reproductive logic. The Hijra consider their biological and marital families as “not family” and organize around a systematic kinship structure centered around a guru–disciple ideology (Reddy Reference Reddy2005). The devadasi system in South India, where girls are given in a sacred marriage to the goddess Yellamma, rendering them forever auspicious and untethered to human husbands, is part of a kinship system that produces devadasis as “sons.” It recognizes their property rights and sexual autonomy, enabling them to form sexual alliances with patrons or to practice performative arts and/or prostitution (the term prostitution does not quite translate the meaning of this premodern practice) or celibacy (Ramberg Reference Ramberg2011).
The retrospective hypothesis offered by the authors, told as an evolutionary story through the epochs, is countered by social constructivists who point out that sexual relations and pregnancy are cultural facts; societies have different systems of conceptualizing the meanings of being man and being woman and organizing family systems. Anthropological evidence demonstrates diversity in gender egalitarianisms within each subsistence strategy of foraging, horticulture, agriculture, and industry. For instance, among the Agta Negritos of the Philippines, women hunt and have evolved birth spacing methods that do not constrain their hunting activity during pregnancy and after childbirth; even in the industrial age, the data presented here indicate that the degree of inequality varies across states.
The authors project seamless continuity and similarity in family forms and gender inequality and do not explain the reasons behind the variation and change in kinship and marriage across time and space. For instance, matriliny, patriliny, polygyny, polyandry, matrilocality, patrilocality, group marriage, concubinage, and various forms of sociosexual nonwife relations and kinship systems have simultaneously coexisted in precolonial South and Southeast Asia, regulated by locally embedded religious and customary laws that stipulated different degrees of gender equality. Practices such as female infanticide and dowry violence mentioned by the authors were not timeless practices rooted only in gender-based conflict, but emerged as a result of colonialism. Scholars have pointed out that the commodification of land, the introduction of a private property regime and its consolidation in the hands of men through the invention of custom, and transplantation of British laws erased women's relatively equitable inheritance rights in communal property and turned infanticide, practiced for demographic balance, into son preference and female infanticide, and linked it to dowry (Oldenburg Reference Oldenburg2002). Social factors, such as wars, slavery, globalization, migration, the emergence of the modern state, enlightenment rationality, and postcolonial state-building also impacted the formation of families and laws over time. The FEAA suggests that these historical processes emerged from and are embedded in constraints influenced by nature and provides a general framework into which context-specific and additional explanations can be placed—but in doing so, the framework becomes void of robust explanatory power. The alternative is to build theories that assemble and compare across a wide range of diverse particulars, pay analytical attention to anomalies, and make meaningful generalizations.
Turning to coding, it is unclear how the authors derive from FEAA and single out the index “Islamic civilization,” which is also presented as an unproblematic indicator of legal pluralism, raising normative tensions, and the question of endogeneity. The latter is not foreclosed by the authors’ discussion of Tunisia, since all legal systems carry remnants of diverse religions and civilizations. Moreover, a reinterpretation of their data suggests that it is not the presence or absence of Islam or legal pluralism that explain their findings, but conditions such as political stability, the presence of a strong state and institutions, effective rule of law enforced by an independent judiciary, economic security, robust social welfare systems, democratic governance, the presence of fragmented and flexible religio-cultural elite and sizable and vocal moderates, accommodation as state craft, strong civil society, and women's movements that determine the degree of gender inequality and the regulation of gender-based violence in individual states.
The statistical analysis, not backed by qualitative research, fails to capture change over time. A more context-specific reading of the data shows a different picture if two anomalies highlighted by the authors are considered. The United States, which does not have legal enclaves, demonstrates relatively higher levels of domestic violence. But feminists suggest a shift in the normative terrain; domestic violence is no longer seen as a private matter in the United States; state intervention in the family is legitimized. Similarly, India recognizes legal pluralism and has experienced a shift toward gender equality through internal reforms within religious laws (Solanki Reference Solanki2011). Furthermore, India has criminalized physical and mental violence in the family and has taken steps to protect economic rights of women who challenge domestic violence and mobilize the reformed laws. The higher rate of violence indicates the increased reporting of violence by women. It also shows that the success of women's resistance to gender-based violence has begun to rupture patriarchal dominance, triggering a social churning that has engendered more violence against women.
This study highlights a pressing need to direct feminist efforts toward contextual, innovative, bottom-up strategies for gender justice in the family across societies with uniform or plural legal systems. Empirically grounded studies of multiculturalism demonstrate that family law reforms in legal enclaves take place through a combination of statist and society-centered interventions and interactions, dialogue, and productive tensions between lay, civic, and religious actors (Solanki Reference Solanki2011), normative convergence and reconciliation across deep differences (Bowen Reference Bowen2003), and elite-led efforts in order to create modern states through family law reforms (Charrad Reference Charrad2001).
Evolutionary biology, especially social Darwinism, is malleable—summoned to defend capitalism, socialism, militarism, and pacifism—but given that it has also been a vital ingredient in the development of eugenics, scientific racism, colonialism, and race-conscious imperialism, feminists alert to its ideological history might reconsider its analytical usefulness in justifying legal centralism, for it is still unclear whether this approach provides a metatheory. Instead, theories offering rigorous proximate answers that illuminate the multilayered, zigzag patterns of constructing and regulating families across societies might suffice in facilitating feminist efforts toward gender justice.
