The hegemonic function of ideology and law in a post-colonial state ;Tanzania with particular reference to family law
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Date
1982
Authors
Journal Title
Journal ISSN
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Publisher
University of Dar es Salaam
Abstract
Since the late 1960’s and early 1970’s there has been an increasing awareness of the inadequacy of approaches to the study of society in bourgeois social sciences. Hence what has been referred to as the crisis in the social science, the crisis itself, signifying not just this awareness, but more importantly, the overall crisis or international capital. The inadequacy in the social science is particularly illuminated in the empiricist comceptions that dominate these compartimentalised disciplines: political science, economics, history, literature, sociology, anthropology, law, etc. The major shortcoming of these conceptions lies in their lack of a theoretical grounding in their analysis if social forms. The empiricist method can never go deep enough to uncover the linner essences of social structure. It remains trapped at the level of appearances, confounding forms of appearance with their causative mechanism. In the circumstances the claim bourgeois social sciences to scientific rigour, neutrality and objectivity must be challenged for what it is: a reflection of and reinforcement of the ideological hegemony of bourgeois society, which by focusing superficially on these forms of appearances pre cludes the possibility of perceiving the underlying structures and there by legitimates the exploitative relations of production by presenting these forms of appearances as universal. It is in this respect that ideological hegemony becomes a prime factor in reproducing the social formation. The dominate classes do not depend solely on the coercive apparatus to maintain their supremacy. Quite crucially, they rely on ideological hegemony to their rule, that is, through consensus from the ruled. Ideology then becomes a crucially element of social practice, for, through its form, relations between fractions of classes and more importantly relation between different and antagonistic classes come to be mediated. To comprehend its centrality for social practice one would have to transcend the otherwise compartmentalized disciplines of the social sciences. This calls for a different problematic that would enable one to penetrate below these surface forms of appearances and uncover their foundation in the social relations obtaining in the formation. Such a methodology. It is submitted, would make it possible view law, history, anthropology, and all other social disciplines not as given absolute categories, but as complex forms of consciousness through which class struggle is mediated. It is this light that present discourses on law and the legal system must be questioned. One cannot afford to study law in isolation of the other social forms that go to mediate class struggles. It is for this reason that the study of law which preoccupies itself with investigating pieces of legislation or specific legal systems must be rejected. Law is neither a natural nor a god given category. It is a social form which is highly composed of ideology. It is important to understand that while law is made up of normative rules, these rules and their operation are mediated through ideological practice within the social formation. Consequently without a concept of ideology and its role in social practice, the study of law remains purely an academic and mechanical exercise. As Sumner pointed out:
“ The study of law will not be advanced by
continually investigating specific legal systems.
These investigations must be accompanied by inquiries into
the theory of law and the methodology of the social sciences.
Since ideology is one of the two components of the legal
system the other being power, the conception and
identification of ideology are of central importance
to the development of the socially analysis of law”.1
A methodology that confined itself within the realm of appearances and which took law and the legal system for granted would be doomed to the ideological hegemony of the dominant class and would only further reinforce it. Yet the role of science must be to investigate the possibility of analysis of social forms, including law, beyond the terrain of bourgeois hegemony in order that their functioning for capital may be exposed. As shivji noted,
“ ….a lawyer intellectual has reveal the real
substance the exploitative economic, social and
political dominat/ dominated that underlie much
of the law”.2
In other words law as a social form must be linked with other social forms i.e. the social sciences by perceiving their function as complex forms of consciousness through which class struggle is fought out. Sumner gives us a useful hint:
“…. Legal discourse and the ideology of law
Must always be seen in relation to other
contemporaneous forms of ideology ….
we must not only put the last nail in the coffin of empiricist epistemology of bourgeois social science, but we must also arrest this dogmatism masquerading under the guise of science. We thus open our discussion in chapter one with an attempt to conceptualize ideology as a specific theoretical and social category inherent in social practice. Such an analysis will enable us to identify the other social forms: law, history, anthropology, and other social sciences as component parts that reflect and reinforce ideology within the social formation. This analysis is then used as a spring board in the attempt to integrate the social form: law and social form: ideology as interlocking and interpenetrating social practices within a social formation. In this we aim, in chapter two, to delineate the ideological hegemony of the social form: law.
While chapters one and two perceive law and ideology as theoretical as well as historical categories, the subsequent chapters attempt to situate them within the historical determined and concrete realities of a post –colonial state. While there is a brief attempt to treat the post-colonial state as general category, for a more concrete analysis, however, the Tanzania formation is singled out and its own peculiarities dwelt upon. In chapter three therefore, we locate the role of ideology within a specific historical and social setting. We examine the unfolding of the class struggle in the post-colonial state from the colonial period to date. Our emphasis is in perceiving how this struggle is mediated through ideological practice and how such ideological practice shifts to meet the exigencies of the moment. It is in this respect that such as history, anthropology, etc., are subject to scrutiny for their function in mediating these struggles in the neo-colonial formation. Chapter four abstracts the legal system from other ideological forms. It then sets out to show how the legal system articulates with ideological practice within the
Because law is but one of sveral ideological
Forms which combine to form and reproduce
the ideological kernel of class hegemony.
Law in linked in reality with other ideological
Forms and apparatuses as mechanism of domination by consent:
it must therefore be linked with them in theory too”.3
Finally we would like to point out that while we reject the empiricist functionalism which underpins the ideological hegemony of bourgeois social sciences,
We must guard against its theoretical twin: the dogmatism of the bukharinist order. Under the guise of Marxism this mechanistic materialism continues to flourish with sorry consequences for social practice. Therefore if we are to comprehend the function of social forms in social practice formation to moderate class conflict and so maintain the social social formation. The function of legal system is here seen through the spectacles of ideological practice in formation. Chapter five singles out one branch of law – family law for a concrete analysis of the complex interpenetration between ideological practice and law. We attempt to show the general ideologies of the day, articulate with a particular Field of law, namely, family law to reproduce the formation. While it is acknowledge and indeed shown that the legal system, and for that matter any law including family law signify in terms of the dominant ideologies in the formation and thereby reflect and reinforce the hegemony of the dominant classes, we investigate the possibility of a revolutionary practice that would penetrate and provide a way out of of this ideological hegemony. We show in this chapter the implications of such revolution practice for the family institution ad the social formation in general.
Chapter six contains a summary of our observations and conclusions.
Description
Available in print form,East Africana Collection ,Dr.Wilbert Chagula Library,Class mark ( THS EAF HQ1019.T309)
Keywords
Family, Tanzania, Domestic relations, Marriage law
Citation
Owori M.O. A (1982) The hegemonic function of ideology and law in a post-colonial state ;Tanzania with particular reference to family law,Master Dissertation,University of Dar es Salaam,Dar es Salaam.