Transcript - "Reproducing Nation and the Social: Law's Regulation of Gender and Family" State Violence as Gender Violence"

Transcript - "Reproducing Nation and the Social: Law's Regulation of Gender and Family" State Violence as Gender Violence"

September 21, 2023 -- CRG Forum Series 

Listen to "Reproducing Nation and the Social: Law's Regulation of Gender and Family" State Violence as Gender Violence". 

NOTE: Rose Cuison Villazor's presentation has been redacted along with the Q+A portion of this CRG Forum as requested by the presenter due to sharing a work in progress.

LETI VOLPP: Welcome everybody to “Reproducing Nation and The Social: Law’s Regulation of Gender and the Family with Rose Cuison Villazor and Prabha Kotiswaran.

I want to begin with the land acknowledgment. We recognize that UC Berkeley sits on the territory of xučyun (Huichin) (hooch yoon), the ancestral and unceded land of the Chochenyo speaking Ohlone people, the successors of the sovereign Verona Band of Alameda County. This land was and continues to be of great importance to the Muwekma Ohlone Tribe and other familial descendants of the Verona Band. 

We recognize that every member of the Berkeley community has benefitted, and continues to benefit, from the use and occupation of this land since the institution’s founding in 1868. Consistent with our values of community, inclusion and diversity, we have a responsibility to acknowledge and make visible the university’s relationship to Native peoples. As members of the Berkeley community, it is vitally important that we not only recognize the history of the land on which we stand, but also, we recognize that the Muwekma Ohlone people are alive and flourishing members of the Berkeley and broader Bay Area communities today.

And in recognition that the Center for Race and Gender, where we are right now benefits from this history we pay the Shumi Land Tax as a small way to contribute to the healing of this history and to recognize the sovereignty of the Ohlone people.

My name is Leti Volpp and I'm the director of the Center for Race and Gender here at UC Berkeley and also the Robert D. and Leslie Kay Raven Professor of Law in Access to Justice. I am thrilled to welcome two stellar scholars to share their important work today.

We will first hear from Rose Cuison Villazor. Rose is Professor of Law and Chancellor's Social Justice Scholar at Rutgers Law School where she just stepped down from serving as Interim Co-Dean. In this role, she was the first Filipina ever to serve as Dean of a U.S. law school. She is currently a Fellow in Residence at the Birnbaum Women’s Leadership Center at NYU School of Law and has been awarded several prizes and awards, including the Derek A. Bell Award from the Association of American Law School’s Minority Section for a junior faculty member who had made an extraordinary contribution to legal education, the legal system or social justice.

Rose is no longer a junior faculty member (Audience laughing) and in this interim has authored so much groundbreaking scholarship that weaves together consideration of questions of immigration, citizenship, property, U.S. territorial law, and race theory. To share just a few snapshots to show the reach of her work, she's the co-editor of “Loving v. Virginia in a Post-Racial World.”  She's the author of the "The Undocumented Closet," "What is a “Sanctuary”?,"  "American Nationals and Interstitial Citizenship." So just a few out of a very long list.

We will then hear from Prabha Kotiswaran. Prabha is a Professor of Law and Social Justice. and I noticed you both are professors on Social Justice (Leti and Rose laughing)

Prabha is Professor of Law and Social Justice at Kings College at the University of London, where her research primarily focuses on social reproduction, governance, feminism, trafficking and sociology of law. Prabha is also the recipient of numerous honors and grants, including the Leverhulme Prize and recently is just concluded or is concluding serving as the principal investigator for a massive European Research Council consolidator grant on social reproduction.

She is the author of the award-winning “Dangerous Sex, Invisible Labor: Sex Work and the Law in India,” which won the 2012 Socio-Legal Studies Association Hart Book Prize for Early Career Academics and is the co-author of “Governance Feminism: An Introduction, “and has published many other foundational works which bridge criminal law, transnational criminal law, sociology of well, postcolonial theory, social reproduction, and feminist legal theory. Most recently, writing about different aspects of women's work stemming from an original interest in applying a material feminist approach to the question of sex work in India.

I am so excited that our two scholars were able to join us in person from New York and London to share with us their research. So after we hear from Rose and then Prabha, we'll open it up for a collective discussion.


PRABHA KOTISWARAN: Thank you so much, Leti, for your very kind introduction and thank you all for being here, and thank you so much for your presentation, Rose, because I think it really brilliantly demonstrates the powerful role of the law in shaping the nation and the family, and importantly the nation through the family.

And so in my talk today, I want to sort of continue to do this kind of rendering visible the role of the law, the very powerful role of the law in shaping different kinds of families and different kinds of homes. And I want to kind of do this from the perspective of, you know a different national context, from the context of India. But I think it's something that speaks to you know you could see similar sort of patterns elsewhere.

So my sort of impetus for doing this actually comes from materialist feminism as a way to intervene in you know, the feminist legal space today, which is mostly dominated by either U.S. influence, casting feminism or liberal feminism, which some feminists call UN feminism. And you know, and of course in order to produce this sort of materialist feminist theory, I rely on socially production theory.

So question, I guess. The first question is what is social reproduction? And it's it's quite simply a term used to connote the labour of women performed in sustaining human life. And it typically includes unpaid domestic and care work, but actually much more. And this is one of the definitions I use for my work, which Hoskins and I shared on how social reproduction includes biological reproduction, and trade production in the home, social provisioning, voluntary work, and the provision of sexual, emotional and affective services.

So here the. This of course, this definition of course presupposes the category of the home as being a private space, which is, you know, distinct from the public space. But this distinction is a relatively recent phenomenon because for a very long time, the, you know we, by the economy, actually the the root word for the term economy was all cost of the household. So you know, we clearly didn't have any sharp distinctions between the household and the market. But this is a more modern kind of development where the home becomes a private space which becomes allocated for various reasons.  You know, certainly in the sort of post-colonial context, you know, many scholars have shown how it was thought of as a personal space where you could survive the ravages of capitalism and colonialism.

But it's been the task of feminists to problematize and politicize this public-private divide, and they've done this in a superb way across disciplines. So feminists have revealed that this public-private divide is actually deeply unstable and that this state plays a crucial role in policing the boundary between the public and the private. So, of course, feminists have focused very much on violence within the home. And they fought the marital rape immunity. For instance, they've sought to decriminalize adultery. They've articulated domestic violence as a problem which were in special laws.

Now what I'm interested in is a question of women's labor. Of course, they are both deeply interconnected, the violence as well, as the economic aspects of it. But the starting point for a lot of socialist feminist theorizing on this question is Frederich Engels's work on the role of private property and marriage as a foundation for capitalism and patriarchal control. So of course, the socialist feminist vision was simply to say you know, women can achieve equality the minute marriage is devoid of its economic motivation. So if men and women marry out of love and with a sense of equality then you know they will not marry because of economic motivations, and that would redeem marriage, as you know as an institution that we can cherish. But of course, this never happened. You know, women became economically independent, but marriage stayed where it was.

And it was left to feminist to then query Marxism's failure to recognize the value of unpaid work within the home. Which was thought to be subsumed within this category of use value generated for consumption within the household. So Marxists could never really understand the value of unpaid work beyond its use and consumption within the household.

So feminist very painstakingly demonstrated how women's unpaid work actually contributes directly to the production of surplus value for the capitalists, leading to their very important demand in the 70s for the direct recognition of women's unpaid work through the mechanism of what they call “Wages for Housework.” Now, it's been exactly 50 years since the campaign took off. And of course, there are various strands of this very fascinating campaign. You know, some feminists like Silvia Federici, for example, claimed that the idea, the demand for wages for housework was simply to put a price on the value of housework so that then women could refuse to do it. It wasn't so much that we actually wanted salaries for what we did. So it was more a political perspective. And they were quite, you know, they departed from the typical socialist feminist view of trying to communalize all these socially. production functions by, you know, communalizing care and cooking, they said, no, we don't want this State interfering in how we reproduce the family. We just want time to take a walk, to paint, you know, to to nurture friendships, and so on. A very, very different socialist feminist understanding of, you know, care work.

But there were other activists within the movement. For example, Selma James, who continues to talk about Wages for Housework being a demand on the State to make payment to homemakers. And the core idea, this core idea of Wages for Housework has persisted over the decades. So today it's morphed into demands for care income as part of the Green New Deal for Europe.  As well as universal basic income in the work of Kathi Weeks, who says, you know, we we should repurpose wages for housework in terms of the Ubi. And most recently during the pandemic there was a tech entrepreneur, Reshma Saujani, who spoke about the Marshall Plan for Moms. So she brought out these huge ads with lots of other corporate leaders saying that, you know, women should be paid, I think $2400 a month for being mothers. So it's very interesting how the idea is, is alive and well.

Of course, Wages for Housework never became a political sort of campaign that was influential, but what we see is a very rich feminist vocabulary of reproductive labor. So it's just not just reproductive labor performed within the home, but it's also performed for the market where it's comodified. It's also there's a very robust theorizing of the international sexual division of labor. There is a lot of literature on global care chains with globalization in the 1990s. So you find this idea of unpaid work simply explodes to include various other forms of work, including, for example, work like sex work, surrogacy, egg donation, paid domestic work, nursing, teaching. There's, you know, just lots of literature from feminists on this. And you find that the site of socially production shifts from just the household to various other institutional settings. And there is, there are also depending on the discipline that you look at, you know, geographers for instance, you know, post-structuralist feminists think of this not as housework but as lifes work. They think of men performing this kind of work. They think of the role of non-humans in this kind of work. They talk about para-capitalist economies because clearly, you know, wages for housework and the reproductive labor.

Literature very much assumed the role central role role of capitalism, whereas the post-structure feminists were a little bit more ambivalent about that. And so what has really happened is the debate around reproductive labors today morphed or developed into broader struggles for housing, healthcare, food security, climate change, climate justice, so on. All of these very large political debates that we now have are being reframed in terms of social reproduction.

So for example, the members of the care collective recently co-authored the “Care Manifesto” which talks about, you know, looking at the world and our lives in terms of the lengths of care to say, how do we restructure the community, the market, the state and so on. The focus shifts away from care simply being a feminist issue of unpaid work performed by women within the household to becoming a much more sort of capacious idea that you can reimagine a new kind of politics. And this has really gotten a huge impetus after the pandemic.

So of course, you know a lot of this literature comes from the Western context, and there's been calls to decolonize socially production theory, which I won't go into today, and clearly, even within the context of a global South. You know, location like India, you could say you need further decolonization of socially production theory, say from a Dalit-Bahujan perspective where caste is a central framing lens for thinking about socially production for example, or from a queer perspective.

So what I just having given you this kind of background on social reproduction. What I want to now do is go back to the story of the law. Which is where I think versus intervention has been very powerful and helps us think through how the law actually shapes our, you know, our our imagination around, you know, what would a just home look like? What would social reproduction actually look like? So I shared a few vignettes with you and I don't know how much time I have. We'll try to be kind of succinct.

The first example that I want to share is of the “Impossible Homes”. So these are images of homes as sex workers that my colleagues took. We've been doing some field work in a few Indian cities. We're trying to understand gentrification in red light areas. We're trying to really map the transformation from quote UN quote modern forms of sex work. To you know. What's called postindustrial sex work here. But it's not doesn't quite fit in the Indian context. So these are spaces where sex workers cook, pray, sleep, raise families and work right. So this is their home. But of course as is common in many common law countries you know, we had laws which might think, would tell us that, you know, selling sexual services for money is legal, but everything associated with it is illegal.

So we have laws which come from the UN Convention on the Suppression of the Traffic in Persons in the 1940s. Which essentially conflates, sex work and trafficking. So in this context, you know where sex workers are renting rooms from a landlord the tenancy relationship is illegal. Therefore they have no lease to show that they're actually tenants, which means they can't access any identity documents. And their connection to the welfare state or whatever little is there in terms of schemes is completely missing, and this became a huge issue during the pandemic.

The law, the inability of the law to also recognize sex workers, work in their workplace and home means a child that's found in these premises would be considered a delinquent child and would be sent off to a state home. Family members living on her income would be considered to be living off the earnings of prostitution. If she were to work with other women, and you know, because there are alternate forms of kinship that you find in red areas. If they were to work together, that would be considered a brothel, and so they would be prosecuted for brothel keeping. So you can see in this the stroke of a law, the law can transform a home into a brothel and family members into criminals or destitute persons that require state protection. So that's one vignette.

Their second one is the home which is mediated by technology. And here there's a very long and complex story. But we know that the right to a family life is something that's recognized under various national and international law instruments. Now the India is very bizarrely unique, I suppose, because we've experimented with almost every legal position there is in relation to surrogacy and egg donation and necessity productive technologies. So in the late 1990s and early 2000s, you know, India was a Mecca for transnational commercial surrogacy. You know, we had a very what I call a medical liberal perspective on surrogacy we thought commercialize surrogacy is fine. And, you know, we have some unique skills in terms of medical tourism that we could leverage and so on. But very quickly, once a nationalist government took, came into power, they whittled away, you know, this medical liberal perspective and went all the way to the other extreme to say we are going to prohibit any such forms of commercial surrogacy or egg donation.

So what we today have, after 20 years of a lot of experimentation, we have two laws which essentially allow only for altruistic surrogacy and altruistic egg donation. They exclude a very vast number of people who can access ARTs. If you think of ARTs as a way to reimagine the home and the household and the family. What the law is immediately done has restricted its access only to married heterosexual couples and excludes, quite predictably, I guess, cohabiting heterosexual couples, excludes same-sex couples, excludes single men, single women, all of them. Right? And not only that, the justification for this prohibition was to prevent exploitation of women surrogates and externals, but what have they done with those women?

All they've said is that the only form of protection they have is a medical insurance policy to protect them in case something terrible happens to them or they die, you know? But apart from that, there is absolutely no compensation for anytime lost caused for very invasive procedures in in egg donation, as well as in surrogacy. And then there are some very stringent rules around how many times you can donate eggs, how many eggs can be harvested so you know there's a way in which the lawmakers have dig deep into the medical profession without really understanding the medical profession. So even the long and short of it is that the way the law has been set up is to produce a huge gamete shortage is to disincentivize people from becoming surrogates or gamete owners of any sort. (Audience member coughs.) And produce a lot of bureaucratic boarders (Audience member coughs.) so that commissioning couples would have to jump through many hoops and therefore the costs of reproduction, assisted reproduction would be very high. And of course, there's no state subsidy in terms of, you know, state provision of reproductive services, for instance, for infertile couples.

So what we find is that this sharp edge of the knife of prohibition will ultimately be borne by very poor women who actually in the field, work that we've done after their laws were passed, had no understanding of the prohibition brought about by the law. So this is the way that the law actually fashions the home and the family.

So the next vignette I want to share is of gated communities in India. So you know, as we know (Audience member coughs.) that given the large number of, you know, poor women in India, the sexual division of labor is less bargain between the husband and the wife as much as it is between the the the women and a whole range of other women workers, right? So, t's really there's a very large contingent of workers who support the middle-class household in India. Now these are images of gated communities, so these gated communities are not like the ones in the U.S. or Latin America where you know you have high barbed wires where the whole move to have gated communities is to provide security from, you know, criminal elements. It's not that way. These gated communities are more middle-class oasis of, you know, elites living. Where you don't, where you know this immense state failure everyone around, everywhere around you, like the the roads don't work, the public transport doesn't work. There's a lot of pollution, so a lot of public goods are not available. So you try to produce all of this in the form of the gated community. So often these gated communities have thousands of apartments. I think this is true in many parts of Southeast Asia as well, right? You have these huge apartment complexes, but I understand they're better regulated there, at least workers rights.

So in these gated communities, what we find is the emergence of what is called Resident Welfare Associations (RWA), which have become really important public institutions without any accountability that would befit a public body. So in any given gated community you will find on a daily basis thousands of workers coming in and out. So some scholars have called this the new factory gates. You know, where you have domestic workers, you have, you know, all this sort of gig workers coming in, you have, you know, drivers, car cleaners, you know, gardeners, lift technicians. There's a very, very large range of workers who service any such gated community at given any given point in time.

Now the RWA is actually are super employers because they have a disproportionate saying who can actually enter these factory gates, right? They require workers to be verified by the police. They have wage rate cards, they have various apps, which are, you know, surveilled the workers and their movements within the complexes. Workers are told where they can be within the complex. There are separate lifts for for domestic workers and for the residents. This risking of domestic workers when they leave the premises to make sure they're not stolen anything. So actually there is a very the the RWA's exercise is disproportionate amount of control on the lives of both the residents, the tenants, as well as workers.

Now during the pandemic, this became very clear actually, where RWA's were expressly commissioned by, you know, municipal authorities to prevent, you know, the spread of of of COVID-19. But, so of course. So it's very clear that they are a public body in some very important ways. Not only do they determine the means of entry into this workspace within the gated community, they also recognize the criminal law against workers. So here, actually, the images are of protest where, you know, say, a woman has been accused of stealing and then all the workers protest. And then there's a lot of retaliation from the middle-class communities. Then there’s the police, the politicians, everyone ganging up together against the workers. Now thinking about the role of the law is very interesting because the law, you know, RWA's claim that they have no, they claim privity of contract. They have no direct relationship, employment relationship with the workers, therefore they can't be held responsible for workers welfare. And when it comes to discrimination again they claim that they are a private body and therefore they are not subject to the constitutional mandates and therefore they can decide to do whatever they want. And so there is zero accountability right now for the RWAs under public law.

So many of us are trying to argue against this and to reinterpret the constitutional provisions against forced labor, and equality, inequality and discrimination, to argue that actually because RWA's are in effect public bodies, constitutional obligation should be imposed on them.

OK, so I don't want to leave you with a sad story, (Audience member laughs.) So there is hope for the law. So very quickly. I'll, I'll turn to this.

So there are there, there is a potential of the law to also recognize just, you know, produce a just home. So this is a very arcane area of private law that we typically don't look at when we look at women's unpaid work we go to family law because we think, you know, at the point of divorce, who gets to keep what sort of thing. But Tort Law, you know, is where personal injury, you know, compensation for personal injuries is awarded by courts. So I'll try to keep this very simple. You know, under Tort Law there are two kinds of damages. One is pecuniary damages and one is non pecuniary. Pecuniary is economic and non-pecuniary is for you know pain and suffering, loss of affection so on and so forth. So what used to happen is when women, when homemakers or women were as subject to some kind of tortuous acts and they died. Typically, the husband was awarded compensation for loss of consortium. That's literally loss of sexual services from the wife and this seems to be a very discrete fixed amount. And this has generally been the trajectory of Common Law and you know many countries around the world which follow the Common Law, English Common Law. So what happens in India actually is an interesting interpretation of English Common Law.

So, we find that in some of the cases, so English courts held that when a homemaker dies that she should be awarded pecuniary damages so economic damages for loss of gratitude services. So this could be a very simple example of. It could also apply to the husband for example, if the husband would normally do work around the yard or gardening and so on, and if he's skilled, then the courts would award the woman say, you know fixed amount for what he would have given to the family. So similarly you know, you could imagine services loss of services to the family. So here the English quotes essentially said, you know, a mother is not simply, you know, she's not just a housekeeper. She's also engaged in love and affection, giving love and affection and reproducing an entire generation. So we should think about their work in a broader fashion. So this is something that was picked up by the Indian courts that said, you know, Indian mothers are no less than English mothers. If English mothers also if their work could be interpreted broadly, then we could also think of the love and affection that Indian mothers bestow upon their families.

So when, so here's a side story which is that in India we have a very high rate of motor vehicles accidents. You know, our roads are very, very unsafe. There's 150,000 people who die every year on Indian roads. So a lot of these. Yeah, it's really high. A lot of these women were homemakers. So obviously if somebody in the formal economy dies, it's very easy to calculate, you know, compensation for that lost life. Whereas for homemakers, it was actually very hard to figure out what the value of their life was. So what the courts did was to take this idea of loss of gratitude services and put it on par with an occupation. So they said, basically homemakers were engaging in the occupation of homemaking. So this is literally wages for housework. They said we will take a certain amount that we should pay them per month and then we will extend it over their lifespan, and we will award a large compensation amount to the dependence of the homemaker.

So this is very, there's a very important kind of way in which the law recognized women's unpaid work. And so over the years and I won't go into too much detail here. Over the years, lots of cases, lots of courts,  you know, build based upon this wages for household jurisprudence and in very explicit feminist terms. So there were judges, you know, so in this case in 2010, one of the judges of the Supreme Court grew very explicitly on a whole body of feminist economics and said, well, you know, we are not counting women's unpaid work well enough. And the sensors should have better ways of accounting for women's unpaid work, talked about C-DOT, talked about the Constitution, talked about various sources to say, you know, it is actually our obligation to recognize women's unpaid work.

And so this not only benefited women, it also benefited men. So you know, if you worked in the informal economy of which we have many people in India, you know, usually there's no way of proving how much people in the informal economy earn. But because of this jurispurdence, you could fix a certain. You know the the courts would take notice of how much somebody in the informal economy would have. Similarly loss of future prospects for a job and informal economy and various reduced deductions for living. And this was confirmed again in 2021, where the court very explicitly gave it a constitutional basis to say that, you know, we need to recognize women's unpaid work to meet our obligations under international law and to satisfy our constitutional vision of social equality and ensuring dignity for all.

So. So I just now obviously there's another side to this story.

I'm running out of time. So I'll quickly wrap up. Yeah. Yeah.

So obviously, a lot of these quotes, also glorified women's work, right. So there was a way in which they glorified women, some paid work. They said, well, these are mothers, you know, we put them on a pedestal. They're reproducing the nation, they're reproducing their families. There were also claims made by in-laws of, say, a young homemaker who had died. To say, you know, we are the ones who would have benefited from our labor, so we should be compensated, not her parents. So there are very interesting ways. And also courts when they had to decide how much compensation to pay, they looked at her age, whether she had children or not, you know how old her children were? What was her education? So there are all kinds of biases that get built into the assessment of compensation in the parts of the courts. Nonetheless, there is some recognition for, for women's and people.

So I won't talk about this very much, but this is another development, not so much in the law, but in policy, in the context of state assembly elections in India since 2021, many political parties have promised unconditional cash transfers for women as a recognition of their unpaid work. And it's something that's really caught on many, many states now, promising various amounts to women, and I think it's it's a fascinating example of rewriting the social contract, but we don't have time for that.

But I'll just conclude by saying that you. As I've tried to sort of build upon what Rose has said, which is to show how the law plays a fundamental role in structuring the household and the family and the home, and we have to think about it, not just in terms of, you know, discrete household, but actually look at these households as deeply interconnected, right? So not just try to recognize reproductive labor perform for a household, but also look at the social reproduction of reproductive laborers such as, you know, surrogates, egg donors, domestic workers, and and and sex workers, for example. So we have to think of all these sort of households as being deeply interconnected and so yeah, so I think there is a role for the law in in recognizing women's labor.


LETI VOLPP: Thank you both so much. That was fantastic.