As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
Ideologically, the South African government is big on marriage. But not just any marriage: heteronormative, patriarchal marriage. And this has been reflected to a disturbing degree in the recent government Green Paper on families. We’re supposed to be a democracy. So what gives?
The late Marxist philosopher, Louis Althusser, called the traditional (nuclear) family “that primary, terrifying tool of the state”. He argued that the family was one of the most potent institutions relied on by the state (along with, amongst others, the school and the church) to help it socialise – and ultimately discipline and control – the population in a capitalist system.
To put it crudely, Althusser suggested that in a society in which traditional nuclear families dominated, the state would find it much easier to control the population in a seemingly non-violent and non-oppressive manner and to keep the population docile and subdued – no matter how vast the social and economic injustice in that society. One could add that nuclear families often help to socialise boys and girls into performing different gender roles and help to perpetuate the gender hierarchy which underlies patriarchy and legitimises the continued economic and social exploitation of women in our society.
Under the influence of Judeo-Christian teachings and traditional cultural beliefs and practices, the nuclear family – one man as the head of the household, in a monogamous marriage with one woman, together raising two or three children (and perhaps a dog) – is often held up as an ideal, despite the fact that in many societies this “ideal” family format is not statistically the norm.
This is particularly true in South Africa, with its wide range of family formats and its low marriage rates. According to a 2008 study by the Economic Policy Research Institute, the nuclear family comprised only 23.25% of all family formats in South Africa, followed by single adult families with 20.40%. According to Statistics South Africa, in 1999 the rate of registered marriages was 355 per 100,000 of the population.
Despite the fact that less than a quarter of South African families conform to the nuclear model, many policy makers and politicians continue to extol the virtues of the family – with a special focus on the nuclear family – and base policy initiatives, aimed at building social cohesion and combating poverty and social disintegration, on the idea of promoting marriage and the nuclear family.
The government Green Paper on families, entitled “Promoting Family Life and Strengthening Families in South Africa”, which was released last week after President Jacob Zuma’s sexist comments about the need for women to marry and have children to “give an extra training to a woman, to be a mother”, does not avoid these pitfalls.
Unfortunately, the Green Paper is conceptually and ideologically incoherent and intellectually shallow. Quite frankly, it reads like a set of first year Unisa study notes for a course in Sociology.
The starting point of the Green Paper is that the family in South Africa is under threat and is unable to play the critical roles “of socialisation, nurturing, care and protection” in an effective manner. It is not surprising that the government is concerned about this failure by the family. After all, if families were to fulfil these functions, it would lift a major burden off the state to contribute to the socialisation and support of individual members in families. If Althusser is correct, it would also assist the state in controlling the restless population.
However, it is striking that the Green Paper fails to engage in any meaningful manner with the manner in which the widely accepted traditional ideology of marriage and the nuclear family at the heart of this Green Paper entrenches and perpetuates gender inequality and the economic exploitation of women. It also fails to come to grips with the fact that the living arrangements of the vast majority of South Africans do not mirror those of an idealised nuclear family and never will.
Although the Green Paper acknowledges that there are different types of families in South Africa and that there is a need to recognise the diverse nature of South Africa’s families when embarking on policy initiatives, this diversity of family forms is not seen as a strength which would help us to address the effects of patriarchy, but rather as a problem to be addressed by government policies and interventions. It seems to me that at the heart of the Green Paper lurks a yearning for a full-scale return to the traditional nuclear family, with clearly-defined gender roles and the man as the head of the household.
Thus, the paper refers to the “plight” of family forms that differ from the idealised norm of the nuclear family and claims that “[m]arriages are essential for the stability of families and ultimately society’s well-being. Where marriages are flourishing, efforts will be made to promote them and where marriages are under threat, there will be a focus on strengthening them”. It then proceeds to make the claim (without any references to the “research” quoted) that “[s]ocial science research demonstrates two almost [my italics] incontestable conclusions: stable marital structures provide profound benefits for men, women and children, while, on the other hand, the breakdown of stable marital structures imposes significant social costs upon individuals and society”.
This statement wrongly assumes that marriages always involve a man, a woman and children, ignoring same-sex marriages as well as marriages in which spouses decline to have children. Elsewhere in the document migrant and refugee families and same-sex families are mentioned also as “emerging families in South Africa” – whatever that may mean – but the assumption underlying the document is clearly that the ultimate family form to aspire to is the heterosexual, monogamous, married couple who raise their biological or adopted children.
No wonder, then, that the document ignores feminist critiques of marriage which point to the often exploitative nature of the gendered division of labour inside many traditional marriages. Marriage robs many women of their economic agency and dignity and forces them into unremunerated or badly remunerated forms of work – including child-rearing and cooking and cleaning. Marriage often perpetuates and entrenches unequal power relations between men and women because men and women are expected to play different roles in a marriage relationship.
For example, in the Constitutional Court judgment of President of the RSA v Hugo, Justice Kriegler remarked that the assumption that women would serve as the primary caregivers of young children:
is a root cause of women’s inequality in our society. It is both a result and a cause of prejudice; a societal attitude which relegates women to a subservient, occupationally inferior yet unceasingly onerous role. It is a relic and a feature of the patriarchy which the Constitution so vehemently condemns… One of the ways in which one accords equal dignity and respect to persons is by seeking to protect the basic choices they make about their own identities. Reliance on the generalisation that women are the primary caregivers is harmful in its tendency to cramp and stunt the efforts of both men and women to form their identities freely.
Because it acts as a cheerleader in favour of traditional marriage (on the basis of the completely unscientific assumption that marriage is essential for the stability of families), the Green Paper ignores the fact that women often suffer acute trauma because they are trapped in loveless, abusive or even violent marriage relationships and that families often thrive without the destructive presence of an emotionally or physically abusive father. The negative effects of such marriage relationships on children are also not addressed – as if marriages (no matter how dysfunctional) are always the first choice. For some reason the Green Paper does not consider the possibility that in a patriarchal society, non-traditional family arrangements in which fathers and/or husbands play little or no role can often be far more beneficial to women and children than being members of traditional nuclear families.
Although the Green Paper mentions patriarchy (the authors think it’s a bad thing), as well as the problem of women’s subjugation that flows from it, it fails to come to grips with the fact that men often wield a disproportionate amount of power is in traditional family relationships – whether those relationships are cemented through marriage or not. One gets the impression that the author(s) of the Green Paper knew that they had to mention patriarchy, but either did not understand the consequences of patriarchy and power differentials for women and children in family structures, or chose to avoid this problem because of the political sensitivity of addressing it in a country where our president himself embraces patriarchal values.
This impression is further enhanced by the comment in the Green Paper that: “[t]raditional leaders have a very important role to play in the Green Paper. They remain the custodians of the traditional value system. They also preside over land, marriages and the family in rural areas. Their engagement by Government is crucial to the realisation of the vision of the Green Paper.” The Green Paper does not mention that traditional leaders embody patriarchy and that their control over land, marriages and family represent a major obstacle for the emancipation of women in our society.
Families, as the Constitutional Court stated in the Dawood case, come in many shapes and sizes. Some families provide a protective and nurturing environment in which individuals – including children – can flourish. But many families do not provide such an environment, whether these families are structured around a heterosexual, supposedly monogamous marriage or not. The refusal of the authors of the Green Paper to engage with the fact that marriage and families are not always beneficial to the individuals involved suggests a deeply conservative, traditional Judeo-Christian, ideological bent on their part – despite the flummery about respect for women’s rights.
The fact is that patriarchal attitudes, which often still underlie family relations in our conservative society, turn many families (of whatever kind) into oppressive spaces of exploitation and marginalisation – especially for those members of the family who happen not to be the male patriarch. Until we deal with this reality, talk about the importance of the state promoting policies to strengthen marriage and family life in South Africa will at best be no more than empty platitudes and at worst will amount to a self-serving attempt by some men to retain their dominance and their position of power over their intimate partners and children.BACK TO TOP