The socio-cultural reasons why consent in marriage for women remains an area of bitter contestation are obvious to anyone remotely familiar with the Pakistani social structure and the degree and extent to which patriarchal norms here determine the personal space ascribed within Western regulatory regimes to autonomous subjects as being within their ambit of decision making. As corrective and resistant, struggles are advocated along two axes: firstly, that Western forms of codified laws should be adopted alongside a more rigorous adherence to equality-espousing human rights norms; secondly, that judges should become social activists by taking a woman-centred approach, by incorporating contextual analysis and international customary and treaty law into the domestic legal landscape.
We believe that such forced diagnostic-prognostic couplings overlie a fundamental disconnect, in that the intervening system of legality has systematically been occluded by a narrow focus on the content of laws and on the procedural encumbrances encountered by women who now have to transpose their social struggles into legal battles. Before approaching legal strategies, it is important to interrogate the basis on which law functions in different postcolonial societies. Through a case study of the jurisprudence of Pakistani courts on the issue of women’s right to consent in marriage we attempt to highlight the possibility of re-discovering, within classical Islamic legality, strategies and institutions that may simultaneously counter the over-determining presence of the postcolonial state and enable an excavation for normative values that counter some of the patriarchal claims of current forms of legality.