Reporting on travel, for me, is always an exercise in finding similarities between differences: the bonds of shared dilemmas, conflicts and social change that unite people, no matter what country.
I spent two weeks in India, where this effort turned out to be clearer than I expected. I was there working on a long-term project about young women struggling to find a balance between ambitions in a modernizing economy and the constraints of a patriarchal system that expects them to stay at home, ruled by their families, husbands and in-laws.
Many of her struggles felt like more extreme versions of the dilemmas faced by women all over the world, including in the US, where I grew up, and the UK, where I live today.
But, unexpectedly, there was also a much more direct connection, which became clear when the opinions of leading judges became public within days of each other, both based on the reasoning of the same man: Lord Matthew Hale, the 17th-century English jurist.
Hundreds of years ago, her decisions about women’s rights in marriage and about their bodies – decisions that those rights should be contained so that they would not override those of men – became part of UK common law and, by extension, US, India and other British colonies.
In the US, Samuel Alito’s draft to reverse the Roe vs. Wade, who leaked to the press, quoted Hale eight times. In India, a Delhi High Court ruling refused to criminalize spousal rape, upholding a legal exception that Hale had codified in a treaty in the 17th century. (The Indian court split, with one judge voting to end the exception; petitioners intend to appeal.)
“It’s surprising that within 10 days we have the leaked Alito decision and the marital rape decision,” says Karuna Nundy, a lawyer who represented the plaintiffs in the Indian case. “Both hark back to a colonial-era misogyny that the Constitutions of India and the US — which guarantee individual rights to bodily privacy, bodily integrity — nullified.”
Or at least they seemed to have canceled it. But both cases showed how this kind of reasoning, once incorporated not only into judicial decisions but also into social norms and practices that have their own collective power and momentum, can persist even in the face of apparent progress.
The past is not dead
A central tenet of Hale’s legal philosophy was that giving women legally enforceable rights over their bodies was a threat to men’s freedom. This is clear from his famous description of rape as “an accusation that is easy to make, difficult to prove, and harder to defend by the accused, though never so innocent.”
This became the basis for centuries of jurisprudence treating the moral character of rape victims as a primary concern, often assuming that they were lying if they could not present witnesses or outside evidence to support their claims.
Hale also wrote in an influential treatise that marital rape could not be a crime because marriage itself constituted an irrevocable consent to sex—only for the woman. “By their mutual consent and marriage contract,” she wrote, “the wife has given herself to the husband she cannot deny.”
This belief was a consequence of the doctrine of coverage: her property became his and she could not bring legal action in her own right. The family, in this view, was a private sphere in which the husband was essentially the sovereign and the wife could not appeal to state protection.
In common law systems, judicial opinions become binding, as do written laws, so many of Hale’s beliefs are not in the past.
Some are extinct, fortunately: we no longer hold witch trials, for example. But his views on rape, marriage and abortion, enshrined in legal opinions, became part of the legal system of Britain and its colonies. And to say they had global staying power would be an understatement. In the UK, spousal rape was only criminalized in 1991. In the US, it took until 1993 to become a crime in all 50 states. In India it is not yet criminalized.
The patriarchal hierarchy
But common law is just the procedural mechanism by which these ideas became and remained law. The bigger story here is politics.
In colonial India, allowing men to control the private sphere became part of an unstable détente between colonial officials and Hindu nationalists, who saw the family as a zone to be protected from outsiders, according to Tanika Sarkar, an Indian legal historian.
In the US, as several jurists have written, treating the family as a private sphere, protected from state interference, has become a shield for male violence, including domestic abuse and marital rape.
And just as protection of the male power hierarchy intertwined with nationalist politics in India, in the US traditional gender roles became a central element of Southern states’ justification for white supremacy, including Jim Crow laws.
“To justify and rationalize brutality against black men, they created this false chivalry and supposed threat that white women needed to be protected from,” says Angie Maxwell, a political scientist at the University of Arkansas. Protecting traditional gender roles thus became linked to protecting racial hierarchy.
This meant that Roe vs. Wade and other feminist reforms created an opportunity for the Republican Party: By framing feminism as a security threat, they managed to gain support among white women in the South. But that strategy also helped cement the divide in American politics between a Republican Party dedicated to protecting existing hierarchies and a Democratic Party primarily seeking more egalitarian reforms.
So while quoting Hale seems, on the one hand, a sober reference to legal history, on the other it reads as a more partisan political statement: this is how the US has always been and any change is illegitimate.
“The structure of patriarchy was exposed by Alito’s leaked decision, and the fact that it hasn’t changed, even though both countries have Constitutions designed to protect individual rights ever since,” says Nundy. “It hasn’t changed since 300 years ago, although both gained independence. One would expect that the freedom of these sovereign nations would also bring the freedom of the human body.”
