Texas Journal of Women and the Law, Volume 22, Number 2, Spring 2013 Page: 185
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2013 Chieftainship'Succession and Gender Equality in Lesotho
similar opportunities or exist in situations where their abilities would be
judged by a common act.166 Thus, the metaphorical "difference of worlds"
is affirmed by marked differences in gender roles, and perhaps, the
perpetuation of male domination.167 In a more gendered discourse, the
"difference of worlds" is captured by the distinctiveness of the culturally
imprinted quality of each sex-defined by Lerner as comprised of "a set of
cultural roles. It is a costume, a mask, a straitjacket in which men and
women dance their unequal dance."'68 This conception could be stretched
to illuminate the lack of homogeneity within the sexes, too. Among
women, just like men, there are differences based on age, rank within clans
or within polygamous households, and even lineage.169 In sum, one might
argue that equality, in the sense that we understand it today, was never
really an issue in traditional societies.
It is perhaps for this reason that customary law does not deal with
equality between sexes as an exclusive subject. Rather, the essence of the
law can be gleaned from the overall manner in which the relationship
between sexes is treated in various aspects of societal life. The problem is
that the rules governing relationships are informed by an overarching
tradition that allowed for the Basotho women, irrespective of age, to be
treated as minors.170 Duncan describes the position of women under
customary law as follows: "Traditionally the position of women,
throughout their lives, is that of minor children. Before they are married
they are the children of their fathers; and during marriage they are the
children of their husbands; and during their widowhood they are the
children of their heirs."171 In effect, women lacked legal capacity to
transact any business, be it acquisition of property or simply enforcing their
rights through the courts. The status of women can therefore be ascertained
by examining how customary laws dealt with issues such as marriage,
property, and succession.
CONTRADICTIONS WITHIN LESOTHO SOCIO-CULTURAL CONTEXT 6 (2009).
166. Incidentally, the differences are evident in the gendered nature of the rural
economy, a phenomenon that has engaged a number of scholars. See, e.g., JAMES
FERGUSON, THE ANTI-POLITICS MACHINE: DEVELOPMENT, DEPOLITICIZATION AND
BUREAUCRATIC POWER IN LESOTHO (1990); MURRAY, supra note 3; Elizabeth Gordon, An
Analysis of the Impact of Labour Migration on the Lives of Women in Lesotho, in AFRICAN
WOMEN IN THE DEVELOPMENT PROCESS (Nicki Nelson ed., 1981).
167. The "difference of worlds" metaphor has become a preferred analytical phrase in
studies on gender roles. See, e.g., NANXIU QIAN ET AL., DIFFERENT WORLDS OF DISCOURSE:
TRANSFORMATION OF GENDER AND GENRE IN LATE QING AND EARLY REPUBLIC OF CHINA
297 (2008).
168. See GERDA LERNER, THE CREATION OF PATRIARCHY 238 (1986).
169. Id.
170. See Makoa, supra note 6, at 7; P. Kashindo et al., Women, Land and Agriculture in
Lesotho 9 (Inst. S. Afr. Stud., Working Paper No. 4, 1993).
171. See DUNCAN, supra note 58, at 4.185
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University of Texas at Austin. School of Law. Texas Journal of Women and the Law, Volume 22, Number 2, Spring 2013, periodical, Spring 2013; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth638862/m1/63/: accessed July 17, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.