Gender, Culture and Human Rights: Reclaiming Universalism 9781472563682, 9781841135137

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This book is dedicated to my parents Kathleen and Frank Mullally.

Series Editor’s Preface Dr Siobhán Mullally’s monograph is a valuable addition to the Series. Dr Mullally examines a range of feminist criticisms of human rights discourse and highlights the problems with the norms and institutions of international human rights law as they currently operate. Dr Mullally travels from theory to practice and includes case studies which draw upon developments in Pakistan, India and Ireland. A central theme of this book is the call for the universal discourse of human rights to be reshaped and reclaimed. Dr Mullally does not underestimate the scale of the task and the difficulties and challenges are comprehensively reviewed. However, the suggestion is that the potential of universalism might still be realised. This will, as Dr Mullally argues, require the reconstruction of the theory and practice of human rights and Gender, Culture and Human Rights: Reclaiming Universalism is a significant contribution to that process. Colin Harvey Belfast April 2006

Acknowledgements This book builds on a doctoral dissertation completed at the European University Institute, Florence. I would like to thank Philip Alston, for his support and encouragement throughout this project and for encouraging a clearer sense of direction and purpose in my work. Much of the later stages of this work were completed while I was on a visiting fellowship at the Gender, Sexuality, Family and Human Rights Programme at Cornell Law School. I am grateful to Martha Fineman for her encouragement and helpful insights throughout my work, in particular, for many comments and discussions on the meaning of autonomy, care and the role of religion / culture in structuring gender relations. I was fortunate to meet many friends and colleagues through the Gender, Sexuality and Family Programme, and am particularly grateful to Reg Graycar, George Pavlakos and Ruth Fletcher for their support, encouragement and advice. I am grateful to Colin Harvey and Neil Walker for their insightful critiques of earlier drafts of this work and for encouraging me to see this through to the final stages of publication. Thanks are due to Henry Steiner for providing me with the opportunity to spend a semester as a visiting fellow on the Harvard Human Rights Program. Thanks are due also to Seyla Benhabib for generously sending on unpublished work and responding to my questions. Earlier drafts of this work were presented at Harvard Law School, Sydney Law School, Osgoode Hall, York University, Beaseley School of Law, Temple University, Keele Law School, Peshawar University, National Law School of India, Bangalore, Free University of Amsterdam. The many comments, suggestions and questions raised at those seminars have helped me to clarify my thoughts and to rethink many earlier ideas. Many friends and colleagues at the Law Faculty, University College Cork, helped me at critical stages of this work, including, Mary Donnelly, John Mee, Olivia Smith, Shane Kilcommins and Caroline Fennell. The British Council provided funding for an ongoing exchange programme in human rights law with the University of Peshawar, Pakistan. The opportunity to teach and research that this programme provided has given me invaluable insights into law and society in Pakistan. My research in Pakistan was helped by very good friends. For their support, friendship and unfailing good humour, I would like to thank Kamran Arif, Javaid Rehman, Shaheen Sardar-Ali, Ayesha Shahid. My thanks are also due to Shashikala Gurpur Murphy, for her hospitality and many keen insights into the women’s movement in India. Thanks also to Patricia Brennan for her friendship and assistance during my stay in Cambridge MA in 1999.

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Thank you to all the McDonnells in Hull for their continuous friendship, good humour and support. For always being the best of friends and for encouraging me to persist with this work, Fitz, Elaine and Winifred. Most of all, I want to thank my parents, Frank and Kathleen, and my brothers, Robert and Tony, for their constant support over many years. And finally thanks to Pat and to my beautiful daughter Bríona, without whom I would found this task much more difficult and much less rewarding. Earlier drafts of chapters nine and ten appeared as: ‘Revisiting the Shah Bano case: Feminism and Multicultural Dilemmas in India’ in Oxford Journal of Legal Studies, 4/2004; and ‘As nearly as may be: debating women’s human rights in Pakistan’, in Social and Legal Studies (2005).

Table of Cases Canada Canada AG v Lavell [1974] SCR 1349 ...................................................82 European Commission and Court of Human Rights Belilos v Switzerland, App. No. 10328/83, Judgment of 29 April 1988 [1988] ECHR 4 ...........................................94–95, 98 Boso v Italy, App No 50490/99, (5 September 2002), ECommHR.......153 Chorherr v Austria, Judgment of 25 August 1993, Ser A No 266-B, (1994) 17 EHRR 358...............................................98 France, Norway, Denmark, Sweden and the Netherlands v Turkey 35 D&R 143...........................................................................94 Johnston v Ireland, App No 9697/82, Judgment of 18 December 1986 [1986] ECHR 17............................132 Keegan v Ireland Judgement of 26 May 1994 (1994) 18 EHRR 342........................................................................130 Lozidou v Turkey, Judgment of 18 December 1996, (1996) 23 EHRR 513 ....................................................................94–95 Norris v Ireland Judgment of 26 October 1988 (1988) 13 EHRR 186........................................................................131 Open Door Counselling v Ireland, Judgment of 29 October 1992 (1993) 15 EHRR 244........................................................................146 Paton v UK, Judgment of 13 May 1980 (1981) 3 EHRR 408 .............153 RH v Norway, App No 17004/90, Admissibility decision of 19 May 1992, ECommHR ..............................................153 Vo v France, App No 53924/00, Judgment of 8 July 2004, [2004] ECHR 326.............................................................................153 X v United Kingdom, App No 8416/79, Admissibility decision of 13 May 1980, 19 D&R 244 ...........................................146 European Court of Justice SPUC v Grogan and others (Case C-159/90) [1991] ECR I-4685; [1991] 62 CMLR 849 ..........................................143, 145 India Abdul Haq v Yasima Talat [1998] Cr LJ 3433 ......................................205 Abdul Rashid v Sultana Begum [1992] Cr LJ 76...................................205

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Ali v Sufaira (1988) 3 Crimes 147.........................................................204 Arab Ahemadhia Abdulla v Arab Ali Mohmuna Saiyadbhai [1988] AIR (Guj) 141........................................................................204 Bai Tahira v Ali Hussain Fidaalli Chothia [1979] 2 SCC 316 .......200, 202 Danial Latifi and Anr v Union of India [2001] AIR SC 3958 ........xxvii, 53, 204–7, 209–11, 213, 215–16 Fazlunbi v K Khader Val [1980] 4 SCC 125 .................................200, 202 Jaitunbi Mubarak Shaikh v Mubarak Fakruddin Shaikh 1999(3) Mh LJ 694 ...........................................................................204 K Kunhashed Hazi v Amena [1995] Cr LJ 3371 ...................................204 K Zunaideen v Ameena Begum [1998] II DMC 468 .............................204 Kaka v Hassan Bano [1998] II DMC 85 (FB) .......................................205 Karim Abdul Shaik v Shenaz Karim Shaik [2000] Cr LJ 3560 ..............204 Maneka Gandhi v Union of India [1978] 1 SCC 248 ...........................205 Marahim v Raiza Begum 1993(1) DMC 60 ..........................................205 Mohammed Ahmed Khan v Shah Bano Begum [1985] AIR SC 945 ......................................xxvii, 53, 65, 82, 193, 195, 199, 203–7, 209–16 Olga Tellis v Bombay Municipal Corporation [1985] 3 SCC 545 .........205 Umar Khan Bahamami v Fathimnurisa [1990] Cr LJ 1364...................205 Inter-American Court of Human Rights Advisory Opinion OC-2/82, The Effect of Reservations on the Entry into Force of The American Convention, Arts 74 and 75, 2 Inter-Am Ct HR (Ser A, No 2) (1982)....................96 Advisory Opinion OC-3/83 of 8 September 1983, Restrictions to the Death Penalty, Art 4(2) and 4(4), American Convention on Human Rights, Series A No 3.....................96 International Court of Justice Bankovic and others v Belgium and 16 other NATO States, 52207/99, admissibility decision of 12 December 2001..........................................................................95 Interhandel case. See Switzerland v US Reservations to the Genocide Convention Case ICJ Rep 1951, 15..........92 Switzerland v US (Interhandel case) (Preliminary Objections) ICJ Rep 1959, 6 ..................................................................................93 Ireland A and B, Applicants v Eastern Health Board, District Judge Mary Fahy and C, Respondents and the Attorney General (C case) [1998] 1 IR 464..........................148

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Article 26 and the Regulation of information (Services Outside the State for the Termination of Pregnancies) Bill 1995, Re [1995] 1 IR 1 .............................147, 160 Att Gen, ex rel SPUC (Ireland) Ltd v Open Door Counselling Ltd and Dublin Well Woman Centre Ltd [1988] IR 593............................................144 Baby O and Another v Minister for Justice, Equality and Law Reform [2002] 2 IR 169 ......................................150 C case. See A and B, Applicants v Eastern Health Board, District Judge Mary Fahy and C, Respondents and the Attorney General Howley, In re [1940] IR 119 .................................................................124 L v L [1992] IR 77........................................................................127, 139 Lobe and Osayande v Minister for Justice, Equality and Law Reform [2003] IESC 1 .........................133–134, 155 McGee v Attorney General [1974] IR 284 ....................................134, 142 Murray v Ireland [1985] IR 532............................................................127 Nicolau v An Bord Uchtála [1966] IR 567 ...........................................130 Norris v Attorney General [1984] IR 36 .......................................130, 156 Osheku v Ireland [1986] IR 733 ...........................................................155 Ryan v Attorney General [1965] IR 294 .......................................142, 156 Sinnott v Minister for Education [2001] IESC 39; [2001] 2 IR 505 ...................................................127–28, 139 SPUC v Grogan and others [1989] IR 734............................................143 The People v Shaw [1982] IR 1....................................................xxiii, 156 X Case [1992] 1 IR 1 ................................................145–50, 153, 161–62 Pakistan Abdul Waheed v Asma Jehangir [1997] PLD Lah 301; [2004] PLD SC 219 .....................................................................180–82 Asma Jilani v The Government of the Punjab [1972] PLD SC 139 ....................................................173 Dr Mahmood-ur-Rahman Faisal v Govt of Pakistan [1994] SC 607 .......................................................179 Federation of Pakistan v Mst Farishta [1981] PLD SC 120...................174 Hakim Khan and others v Govt of Pakistan [1992] PLD SC 595 .........180 Humaira Mehmood v State [1999] PLD Lah 494..................................183 Mirza Qamar Raza v Tahira Begum and others [1988] PLD Karachi 169 .................................................179 Mst Kaneez Fatima v Wali Muhammad [1993] PLD SC 901 ................180 Muhammad Ishaque v Manzooran Bibi [2003] PLD SC 128 ................180 Muhammad Siddique v State [2001] PLD 449 ......................................183 Mukhtar Mai, pending before the Supreme Court of Pakistan ..............188 Safia Bibi [1985] NLR SD 145..............................................................178

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Saima Waheed case. See Abdul Waheed v Asma Jehangir Samia v the State [2003] PLD Lah 747 .................................................184 Shabbir Ahmed [1983] PLD FSC 110....................................................178 Shaukat Hussain v Rubina [1989] PLD Karachi 513 ............................177 International Criminal Tribunal for Rwanda Prosecutor v Jean Paul Akayesu, 2 September 1998, ICTR-96-4-T.......162 UN Human Rights Committee (Views) Kitok v Sweden, Communication No 197/1985, GAOR 43rd Session, Supp No 40, UN Doc A/43/40 (1988) 221 ..............................................................83 Lovelace (Sandra) v Canada, Communication No 24/1977, GAOR 36th Sess, Supp No 40, UN Doc A/36/40 (1981) 166 (merits); UN Doc Supp No 40 (A/38/40) (1983) 249 .............81–83 Rawle Kennedy v Trinidad and Tobago, 2 November 1999, CCPR/C/67/D/845/1999......................................................................95 RL v Canada, Communication No 359/1989, GAOR, 47th Sess, Supp No 40, UN Doc A/47/40 (1994) 358..........................83 United Kingdom R. v Immigration Appeal Tribunal, ex parte Shah; Islam v. SSHD, [1999] 2 A.C 629, [1999] 2 W.L.R. 1015, [1999] 2 All E.R. 545 (H.L. 1999)..............................................189–90 United States of America American Booksellers Association, Inc v William H Hudnut, III, Mayor, City of Indianapolis 598 F Supp 1316 (SD Ind, 1984); 771 F 2d 323 (7th Cir, 1985); aff’d 106 SCt 1172 (1986)..........................................14 Bradwell v Illinois 83 US 130 (1873) ....................................................106 Griswold v Connecticut 381 US 479 (1965)..........................................142 Roe v Wade 410 US 113 (1973)............................................140, 142, 160 Santa Clara Pueblo v Martinez 98 US 1670 (1978).................................81

Table of Statutes Canada Bill of Rights ...........................................................................................82 Charter of Fundamental Rights and Freedoms ........................................83 Constitution Act 1982 Pt IV........................................................................................................83 Indian Act 1970 ................................................................................82–83 §12(1)......................................................................................................82 §12(1)(b) .................................................................................................82 India Bengal, Agra and Assam Civil Courts Act VIII of 1887 ........................174 Bombay Regulation IV of 1827.............................................................174 Code of Civil Procedure 1859 .......................................................171, 197 Code of Criminal Procedure 1861 ..........................................81, 171, 197 Code of Criminal Procedure 1872.........................................................199 Code of Criminal Procedure 1973 ....................200–1, 204, 206, 211, 213 s 125 .....................................................................................199–202, 206 Constitution of India.............................................................199, 204, 206 Art 14....................................................................................................205 Art 15....................................................................................................205 Art 21....................................................................................................205 Directive Principles of State Policy Art 44....................................................................................................199 Art 45..........................................................................................xxvii, 194 Indian Divorce Act 1869 §7 ..........................................................................................................207 §10 ........................................................................................................207 Indian Divorce (Amendment) Act 2001 ................................................208 Interpretation of the Christian Marriages Act (XV of 1872).................184 Muslim Personal Law..................................81, 175, 199–201, 203–5, 211 Muslim Personal Law (Shari’ah) Application Act 1937 ................175, 200 Muslim Personal Law (Shari’ah) Application (Sind Amendment) Act 1950.............................................................175 Muslim Women (Protection of Rights in Divorce) Act 1986 .......................65, 82, 203–7, 209–11, 216 s 3 .........................................................................................................204 Penal Code 1860 ...........................................................................171, 197

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Punjab Laws Act 1872 ..........................................................................174 §5 ..........................................................................................................174 Regulation 1781 §60 ................................................................................................171, 197 Regulation IV 1793 §15 ........................................................................................................171 Special Marriages Act............................................................................208 Warren Hastings Plan 1772 ..................................................171, 174, 197 West Punjab Muslim Personal Law (Shari’ah) Application Act 1948........................................................................175 Ireland Adoption Act 1952 ...............................................................................130 Anglo-Irish Treaty 1921 ................................................................120, 122 Belfast Agreement 1998. See Good Friday Agreement British-Irish Agreement..........................................................................133 Civil Service Act 1924 ...........................................................................125 Constitution 1922 ...................................................................123–24, 126 Constitution 1937 ..............................................8, 117, 119, 122–27, 132, 134–35, 147–49, 164, 170 Preamble .......................................................................122, 147, 156, 172 Art 2 .............................................................................................133, 157 Art 3................................................................................119, 157–58, 163 Art 3(1) .................................................................................................119 Art 26 ...........................................................................................119, 127 Art 29....................................................................................................146 Art 40....................................................................................................128 Art 40.1.................................................................................................126 Art 40.3.................................................................................................142 Art 40.3.3 .....................................................................143, 145, 149, 151 Art 41..............................................................................123, 127–28, 134 Art 41.2 ................................................8, 126–28, 134, 136–37, 139, 160 Art 41.2.1........................................................................................125–26 Art 41.2.2..............................................................................................125 Art 41.3.1 .....................................................................................124, 135 Art 42....................................................................................................128 Art 44....................................................................................................123 Art 44.1.3..............................................................................................123 Art 45.4.2..............................................................................................125 5th Amendment to the Constitution (1972) ...........................................123 8th Amendment to the Constitution (1983) .............................142–43, 147 11th Amendment to the Constitution Act (1992)...................................146 14th Amendment to the Constitution.....................................................148

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19th Amendment to the Constitution Act (1998) ..................xxiv, 133, 157 23rd Amendment to the Constitution Act (2002) ..................................152 27th Amendment to the Constitution Act (2004)...................................134 Employment Equality Act 1998 ............................................................157 §37 ........................................................................................................129 Equal Status Act 2000...........................................................................157 Equality Act 2004 .................................................................................129 European Convention on Human Rights Act 2003...............................153 Family Law (Divorce) Act 1996 ............................................................133 Good Friday Agreement 1998 ......................................xxiv, 119, 133, 157 Irish Nationality and Citizenship (Amdt) Act 2004...............................134 Juries Act 1927 .....................................................................................125 Proclamation of Independence 1916 .............................................120, 126 Regulation of Information (Services Outside the State for the Termination of Pregnancies) Act 1995 ..................................147 Representation of the People Act 1918 .................................................121 Kuwait Constitution ..........................................................................................103 Art 29....................................................................................................103 Electoral Act..........................................................................................102 Nationality Act......................................................................................103 Morocco Personal Code .......................................................................................105 Pakistan Constitution of Pakistan 1956.........................................................172–73 Preamble ...............................................................................................172 Art 198............................................................................................172–73 Constitution of Pakistan 1962 ......................................................173, 176 Preamble ...............................................................................................172 Art 8(3)(b).............................................................................................177 Sch 1, Pt II.............................................................................................177 Sch III, Art 6(3)(ii).................................................................................177 1st Amendment Act 1963 ......................................................................173 8th Amendment Act (XVIII of 1985) .....................................................179 §19(2)....................................................................................................179 Constitution of the Islamic Republic of Pakistan 1973................................................102, 167–68, 170, 173, 176–80, 183, 185–86

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Preamble ...............................................................................................172 Art 2......................................................................................................170 Art 2-A..................................................................................................179 Art 25....................................................................................................172 Art 203B ...............................................................................................180 Art 227 .........................................................................................177, 179 Chapter on Fundamental rights.............................................................170 Directive Principles of State Policy ........................................................170 Constitution (Amendment) Order 1979 ................................................179 Constitution (Second Amendment) Order 1982 (PO No 5 of 1982) §4 ..........................................................................................................179 Constitutional (Amendment) Order 1980 .............................................179 Enforcement of Hadd (Prohibition) Order (IV of 1979) ...............................................177–79, 183, 186–87 Execution of the Punishment of Whipping Ordinance (IX of 1979) ........................177–79, 183, 186–87 Legal Framework Order (Chief Executive’s Order No 24 of 2002) ......................................................................168 Muslim Family Laws Ordinance 1961 (MFLO) ........176–77, 179–80, 201 §6 ..........................................................................................................176 §6(3)......................................................................................................176 a.77 .......................................................................................................176 Muslim Personal Law............................................................................174 North-west Frontier Province Shariat Act 2003 ....................................189 Offence of Qazf (Enforcement of Hadd) Ordinance (VIII of 1979) ......................................177–79, 183, 186–87 Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) ...............................177–79, 181, 183, 186–87 §4 ..........................................................................................................178 Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979).........................................177–79, 183, 186–87 PO No 3 of 1979 ..................................................................................179 PO No 1 of 1980 ..................................................................................179 PO No 5 of 1982 ..................................................................................179 PO No 14 of 1985 ................................................................................179 Provisional Constitutional Order No 1 of 1999....................................167 Qanun-e-Shahadat Order 1984 Art 17(1) ...............................................................................................178 Revival of the Constitution of 1973 Order 1985 (PO No 14 of 1985) ......................................................179 Shari’ah Act 1991 .................................................................................180

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West Pakistan Muslim Personal Law (Shari’ah) Application Act 1962........................................................................175 §2 ..........................................................................................................175 United Kingdom Human Rights Act 1998 ...........................................................................ii United States of America Constitution First Amendment.....................................................................................14

Table of International Instruments African Charter on Human and Peoples’ Rights 1981...............................8 Beijing Declaration and Platform for Action 1995 ...........100–1, 106, 118, 125, 137, 151, 153–54 Cairo Declaration on Human Rights 1990............................................183 Convention Relating to the Status of Refugees 1951.............................190 Declaration on the Elimination of Violence Against Women 1993....................................................99–100 Declaration on the Rights of the Child Preamble, para 3 ...........................................................................105, 151 European Convention on Human Rights (ECHR) ..................................................94–95, 98, 131–32, 153 Art 2......................................................................................................153 Art 3......................................................................................................153 Art 6........................................................................................................94 Art 8..............................................................................................146, 153 Art 10............................................................................................143, 146 Art 14....................................................................................................153 Art 15......................................................................................................94 Art 25......................................................................................................95 Art 46......................................................................................................95 Geneva Convention (Third) 1949............................................................94 Geneva Convention (Fourth) 1949 ..........................................................94 Geneva Conventions 1949.......................................................................94 Genocide Convention ..............................................................................92 International Covenant on Civil and Political Rights 1966 (ICCPR) ......................................................82–83, 95, 113 Art 2................................................................................................83, 104 Art 2(1) ...........................................................................................82, 104 Art 3 ..........................................................................................82–83, 104 Art 7......................................................................................................152 Art 23..............................................................................................82, 104 Art 23(1) .................................................................................................82 Art 23(4) .........................................................................................82, 104 Art 25(b) ...............................................................................................104 Art 26 ................................................................................................82–83 Art 27 ................................................................................................82–83 Art 40......................................................................................................92 Art 41......................................................................................................92

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First Optional Protocol to the International Covenant on Civil and Political Rights .........................................82, 95 Maastricht Treaty ............................................................................145–47 Protocol 17 ......................................................................................145–46 Rome Statute of the International Criminal Court ..................106, 152–53 Art 7(1)(h) .............................................................................................109 Art 7(2) .................................................................................................153 Art 7(3) .........................................................................................106, 109 UN Charter 1945 Art 2(7) .................................................................................................117 UN Convention on the Elimination of All Forms of Discrimination Against Women 1979 (CEDAW) ...........xv, xxii, xxvi, 6, 77,87, 89–91, 98–101, 103–5,107, 111–13, 135–36, 151,154, 161–62, 184, 186, 189, 193, 195, 208–9, 211, 215 Art 2..............................................................89, 98, 101, 105–6, 112, 185 Art 2(e)..................................................................................................100 Art 2(f) ..........................................................................................106, 185 Art 2(g)..................................................................................................106 Art 2(2) .................................................................................................103 Art 3........................................................................................98, 101, 103 Art 5..........................................................................46, 100, 103, 187–88 Art 5(a)..........................................................................................103, 193 Art 7(a)..................................................................................................102 Art 7(b) .................................................................................................103 Art 9......................................................................................................103 Art 9(2) .................................................................................103, 106, 112 Art 12....................................................................................................151 Art 13(a)................................................................................................101 Art 15......................................................................................................89 Art 16..........................................46, 89, 100, 102–3, 106–7, 112, 183–85 Art 16(1) .......................................................................................103, 193 Art 16(1)(b) ...........................................................................................102 Art 16(1)(c) ...........................................................................................101 Art 16(1)(d) ...........................................................................................102 Art 16(1)(e) ...........................................................................................102 Art 16(1)(f) ........................................................................................101–2 Art 16(1)(h) ...........................................................................................102 Art 16(2) .......................................................................................103, 193 Art 29....................................................................................................186 Art 29(1) ...............................................................................................106 UN Convention on the Rights of the Child 1989 (CRC)............xxvi, 46, 102–4, 151, 184, 186, 193, 209

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Preamble, para 9 ...........................................................................105, 151 Art 1..............................................................................................105, 151 Protocol on the Rights of Women in Africa 2003......................................8 Art 5..........................................................................................................8 Art 5(e)......................................................................................................8 Treaty of Nice........................................................................................150 Treaty of Rome........................................................................138, 143–44 Universal Declaration of Human Rights 1948 ................7, 52, 97, 99, 186 Vienna Convention on the Law of Treaties 1969 ...............xxiii, 93, 95–96 Art 11......................................................................................................97 Art 19................................................................................................91, 93 Art 20......................................................................................................91 Art 21......................................................................................................91 Art 21(1) .................................................................................................94 Art 22......................................................................................................91 Art 23......................................................................................................91 Vienna Declaration and Programme of Action 1993 .......................99–100

Introduction

I

incarnations, feminism has been closely associated with the pursuit of women’s rights. Building a just and equal society required the recognition and enforcement of equal rights for women. Early liberal feminists saw their task as being a relatively straightforward, if daunting one. Liberal political theory ascribed rights to human beings on the basis of their capacity for reason. The task for feminism was to show that women had the same capacity for rationality and moral action as did men and to claim for women the same rights as were ascribed to men.1 With the growth of the international human rights movement, the refrain ‘women’s rights are human rights’ became a familiar rallying cry.2 Liberal feminists sought to add women in to the growing body of human rights norms, appealing to women and men’s common humanity and their capacity for reason as a justificatory basis for their claims to equal rights. In recent years, however, feminism has become increasingly sceptical of such appeals. Feminism has come to be defined in opposition to universalism and the terms of Enlightenment philosophy. The discourse of human rights has been a central tenet of Enlightenment philosophy, an indispensable tool in the pursuit of justice and equality. It is now accused, however, of being ‘an active enemy of women’s progress’.3 At the heart of this critique is a concern with difference, differences between women and men and between women themselves. Difference feminism has defined itself in opposition to a Kantian universalism that is accused of not only abstracting from difference but also rendering difference irrelevant. Difference feminisms include feminist critiques of liberalism and include, in particular, feminisms that emphasise the significance of differences, whether rooted in sex, gender, class, sexuality, religion or other N ITS LIBERAL

1

M Wollstonecraft, A Vindication of the Rights of Woman (London, Penguin Classics, 1985). See, for example: C Bunch, ‘Transforming Human Rights from a Feminist Perspective’ in J Peters and A Wolper, (eds), Women’s Rights Human Rights: International Feminist Perspectives (New York, Routledge, 1995) 11; NK Hevener, ‘An Analysis of Gender Based Treaty Law: Contemporary Developments in Historical Perspective’ (1985) 7 Human Rights Quarterly 70. 3 See: M Nussbaum, Sex and Social Justice (Oxford, OUP, 1999) 56. 2

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differences. Nicola Lacey describes difference feminism as based on a ‘complex idea of equality which accommodates and values, whilst not fixing, women’s specificity as women’.4 Feminism’s concern with women’s specificity has expanded to include a concern with religious, cultural and other differences and has led to alliances between feminist, postmodern and communitarian thinkers.5 Underpinning these alliances is a suspicion of the universalistic discourse of rights. In place of universalistic claims, difference feminists emphasise the role of local, contextual judgments, the social construction of the human self and the constitutive role of communities and inherited traditions. Instead of the ideal of the autonomous, freely choosing self, Carol Gilligan, Drucilla Cornell, Luce Irigaray, Iris Young and others, emphasise the specificity of women’s bodies, life-patterns and modes of moral reasoning6 and reject the abstractions of human rights discourse. The challenge to the unitary category ‘woman’ has come from two main sources: the theoretical advance of post-structuralism and from Black, Minority Ethnic and Third World women who have been ignored or rendered invisible by the false universalism that has underpinned much of liberal feminism. Black feminists and critical race feminists have taken the lead in unmasking the particular woman embodied in the unitary category ‘woman’. This process of unmasking has required White women to recognize their own role and agency as oppressors, however unwitting.7 Within the context of international human rights law, critical race feminists have

4 N Lacey, Unspeakable Subjects: Feminist Essays in Legal and Social Theory (Oxford, Hart Publishing, 1998) 4. 5 See generally: A Bunting, ‘Theorizing Women’s Cultural Diversity in Feminist International Human Rights Strategies’ 20(1) Journal of Law and Society 6; E Brems, ‘Enemies or Allies—Feminism and Cultural Relativism as Dissident Voices in Human-rights Discourse’ (1997) 19(1) Human Rights Quarterly 136; TE Higgins, ‘Anti-essentialism, Relativism and Human Rights’ (1996) 19 Harvard Women’s Law Journal 89; R Kapur, ‘A Love Song to Our Mongrel Selves: Hybridity, Sexuality and the Law’ (1999) 8(3) Social and Legal Studies 353; R Kapur, ‘The Tragedy of Victimzation Rhetoric: Resurrecting the “Native” Subject in International/Post-colonial Feminist Legal Politics’ (2002) 15 Harvard Human Rights Journal 2. 6 C Gilligan, In a Different Voice Psychological Theory and Women’s Development (Cambridge, MA, Harvard University Press, 1982); D Cornell, Beyond Accommodation: Ethical Feminism, Deconstruction and the Law (London, Routledge, 1991); IM Young, Inclusion and Democracy (Oxford, OUP, 2000); IM Young, Justice and the Politics of Difference (Princeton, NJ, Princeton University Press, 1990); R West, ‘Jurisprudence and Gender’ in K Bartlett and R Kennedy, (eds), Feminist Legal Theory: Readings in Law and Gender (Boulder, CO, Westview Press, 1991) 201. 7 To quote Audre Lorde, writing more than twenty years ago: ‘As white women ignore their built-in privilege of whiteness and define [woman] in terms of their own experience alone, then women of Color become “other”, the outsider whose experience and tradition is too “alien” to comprehend’. A Lorde, ‘Age, Race, Class, and Sex: Women Redefining Difference’ in Lorde A, Sister Outsider (New York, Trumansburg, 1984) 117.

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highlighted the tendency to homogenize the ‘third-world woman’.8 This tendency has lead to the creation of what Mohanty terms, ‘a composite, singular third-world woman’,9 a woman who is denied all agency and portrayed only as a victim. It is a tendency that can be seen in debates on the problem of human trafficking, in legal and political discourses in France surrounding the wearing of the hijab and in debates within international human rights fora on the practice of female genital mutilation. Lesbian feminists and feminists with disabilities have also challenged the conventional construction of womanhood underpinning international instruments such as the 1979 UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Until recently, a prevailing ‘ideology of heterosexuality’ rendered lesbian women’s concerns invisible within the international human rights movement. Morris has pointed to the way in which feminist research on care and the ethics of care frequently constructed the category ‘woman’ so as to exclude women with disabilities.10 Similarly, women with disabilities were often ignored by disability rights activists who treated concerns raised by women as particular or marginal. The concern with difference has led, for some feminists, to a shift away from universalism and, for others, to a call for a ‘differentiated universalism,’11 in which the achievement of universalism is always contingent upon attention to difference. The challenge is to define a universalism that is interactive, not legislating, that is gender sensitive rather than gender blind, contextually sensitive and not situation indifferent.12 Difference feminisms have provided us with a timely reminder of the many unfulfilled promises of human rights discourse. However, to the extent that difference feminisms are suggesting a move away from human rights discourse and the commitment to universality that underpins it, its claims are flawed. A commitment to the universalistic principles of human rights is not necessarily at odds with feminist struggles. Feminism encounters many difficulties when it defines itself in opposition to universalism and moves away from the discourse of human rights. The shift away from universalism is damaging both for feminist theory and practice, endangering

8 See, for example, R Kapur, ‘The Tragedy of Victimization Rhetoric: Resurrecting the “Native” Subject in International/Post-colonial Feminist Legal Politics’ (2002) 15 Harvard Human Rights Journal 2. 9 C Mohanty, ‘Under Western Eyes: Feminist Scholarship and Colonial Discourses’ (1988) 30 Feminist Review 61. 10 J Morris, Pride Against Prejudice (London, Women’s Press, 1991); J Morris, (ed), Encounters with Strangers: Feminism and Disability (London, Women’s Press, 1996). 11 This term is borrowed from: R Lister, Citizenship: Feminist Perspectives, 2nd edn, (New York, NYU Press, 2003) 91. 12 S Benhabib, Situating the Self: Gender, Community and Postmodernism in Contemporary Ethics (Cambridge, Polity Press, 1992) 3.

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both the pursuit of an emancipatory agenda and the flourishing of difference that feminism so greatly values. Of course, claims to universal validity and inclusion have often masked the unequal treatment of those who were ‘silently excluded’.13 Diane Otto, in a recent essay on the struggle for the inclusion of women in the paradigm of universal human rights, asks whether ‘women’s full inclusion in the universal register may indeed be an impossibility’?14 Ultimately, she concludes, however, that it is too soon to reject the project of universal human rights and opts instead for a destabilizing and particularizing of the ‘masculine universal’.15 As Otto recognizes, it is not universalism per se that is the problem but rather Eurocentric hegemonies posing as universalism.16 Universalism, properly understood, is deeply sensitive to difference. As Habermas has noted in his essay on ‘The Inclusion of the Other’, ‘Equal respect for everyone is not limited to those who are like us; it extends to the person of the other in his or her otherness ... those who are strangers to one another and want to remain strangers’.17 A moral universalism that is sensitive to difference demands a ‘nonleveling and nonappropriating inclusion of the other’.18 The criticisms advanced by difference feminists, such as Ratna Kapur19 or Karen Engle,20 are based on a belief that the misuse of universalism exhausts its limits—that universal norms can only represent a false universality, an imaginary common humanity. Certainly, human rights discourse has not yet fulfilled its promises and human rights law and practice remains deeply flawed. Abandoning the universalistic discourse of human rights, however, will not assist feminism in its pursuit of a complex equality. Reconciling feminism with universalism may be possible but this reconciliation requires us to move beyond the metaphysical illusions of Enlightenment theories of rights. In this book, I argue that the critical insights of discourse ethics theorists offer feminism a way of redefining

13 J Habermas, M Pensky, (tr), Postnational Constellations: Political Essays (London, Polity Press, 2001) 120. 14 D Otto, ‘Disconcerting “Masculinities”: Reinventing the Subject of International Human Rights’ in D Buss and A Manji, (eds), International Law: Modern Feminist Perspectives (Oxford, Hart Publishing, 2005). 15 Ibid. 16 KA Appiah, In my Father’s House: Africa in the Philosophy of Culture (New York, NY, OUP, 1992) 58. 17 J Habermas, The Inclusion of the Other: Studies in Political Theory (Cambridge, MA, MIT Press, 1998) p xxxv. 18 Ibid, p 40. 19 See: R Kapur, above n 5. 20 K Engle, ‘Female Subjects of Public International Law: Human Rights and the Exotic Other Female’ (1992) 26 New England Law Review 1509; K Engle, ‘International Human Rights and Feminisms: When Discourses Keep Meeting’ in D Buss and A Manji, (eds), International Law: Modern Feminist Perspective (Oxford, Hart Publishing, 2005) 47.

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universalism and with it the discourse of human rights.21 Recognising the need for normative reconstruction and reflecting an ethical turn in feminist theorizing, a number of feminist legal theorists have begun the project of reconciling legal reform strategies with critical theory. Within international law, these include Diane Otto,22 Doris Buss,23 Ambreena Manji,24 Karen Knop,25 Patricia Viseur Sellars,26 Christine Chinkin,27 Hilary Charlesworth,28 to name but a few. Underpinning these attempts is a recognition of the need to move beyond the postmodernist celebration of diversity to contemplations of how difference can be accommodated politically and oppression and injustice challenged. Judith Squires argues that this move requires ‘a clearly formed and articulated set of values, ethical standpoints and evaluative criteria.’29 This set of values, standpoints and criteria can be found, I argue, in the universalistic discourse of human rights, properly understood. If feminism is to be truly global, however, a powerful and persuasive way of relating the universal and the particular must be found. The negotiation and recognition of difference continues to be a pressing concern for feminism, a concern that can be seen in the processes of constitutional negotiation in societies as diverse as Iraq, Afghanistan, the European Union, East Timor. This book focuses, in particular, on claims of religious and

21 See, in particular: S Benhabib, ‘Beyond East and West—Response’ (1995) 23(4) Political Theory 674; S Benhabib, ‘Deliberative Rationality and Models of Democratic Legitimacy’ (1994) 1(1) Constellations 26; S Benhabib, ‘The Generalised and the Concrete Other: The Kohlberg-Gilligan Controversy and Feminist Theory’ in S Benhabib and D Cornell, (eds), Feminism as Critique: On the Politics of Gender (Minneapolis, MN, University of Minnesota Press, 1986) 77; S Benhabib, Critique: Norm and Utopia: A Study of the Foundations of Critical Theory (New York, NY, Columbia University Press, 1986); S Benhabib, The Reluctant Modernism of Hannah Arendt (London, Sage, 1996); S Benhabib, Situating the Self: Gender, Community and Postmodernism in Contemporary Ethics (Cambridge, Polity Press, 1992); S Benhabib, The Claims of Culture: Equality and Diversity in the Global Era (Princeton, NJ, Princeton University Press, 2002). 22 D Otto, ‘Disconcerting “Masculinities”: Reinventing the Subject of International Human Rights’ in D Buss and A Manji, (eds), International Law: Modern Feminist Perspectives (Oxford, Hart Publishing, 2005). 23 D Buss and A Manji, (eds), International Law: Modern Feminist Perspectives (Oxford, Hart Publishing, 2005). 24 Ibid. 25 K Knop, Diversity and Self-determination in International Law (Cambridge, CUP, 2002); K Knop, (ed), Gender and Human Rights (Oxford, OUP, 2004). 26 See, for example: PV Sellars, ‘Individuals’ Liability for Collective Sexual Violence’ in K Knop, (ed), Gender and Human Right (Oxford, OUP, 2004). 27 H Charlesworth and C Chinkin, The Boundaries of International Law (Manchester, MUP, 2000). 28 H Charlesworth, ‘Feminist Methods in International Law’ (1999) 93 Am J of Intl Law 379; H Charlesworth, ‘The Mid-life Crisis Of The Universal Declaration Of Human Rights’ (1998) 55 Wash & Lee L Rev 781; H Charlesworth and C Chinkin, above n 27; H Charlesworth, C Chinkin and S Wright, ‘Feminist Approaches to International Law’ (1991) 85 Am J of Intl Law 613. 29 J Squires, Principled Positions (London, Lawrence and Wishart, 1993).

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cultural differences made by States and other collective entities and on the challenges posed to feminism in responding to those claims. Religious and cultural claims do not, of course, exhaust the limits of claims to difference. They raise particular questions, however, of the institutions and strategies necessary to recognize difference and it is on these questions that this book focuses. A. FEMINISM, DISCOURSE ETHICS AND HUMAN RIGHTS

Feminist critiques of rights have centred on three main themes: (a) the disembedded and disembodied subject of rights; (b) the validity of rights claims grounded on a universal legislating reason; and (c) the ability of a universal, legislating reason to tackle the multiplicity of contexts and life-situations with which practical reason is always confronted.30 Rights discourse is accused of pitching the individual against the community, the universal against the particular, the public against the private. Within liberal theories of rights, the subject of human rights is a divided one, ‘caught between the moral law and the starry heaven above and the earthly body below’.31 Although striving for unity, it is plagued by tensions, between ‘autonomy and nurturance, independence and bonding, sovereignty of the self and relations to others’.32 These dichotomies are deeply hierarchical and also deeply gendered. The discourse of human rights is accused of privileging one side of these dichotomies and marginalising the other. Included amongst the marginalised and excluded are those voices associated with the private, the particular, the affective bases of moral judgement. These include women, the poor, the working class, gays, lesbians, people of colour. All are excluded from a polity that prides itself as being cosmopolitan. In chapter 1, I examine these critiques and look at feminism’s departure from the liberal discourse of rights, focusing on three main strands of feminist theory: Carol Gilligan’s feminist Ethics of Care; Catharine MacKinnon’s radical feminism and postmodern feminisms. Each of these strands proposes alternative strategies for feminism yet none provide the resources necessary to build an emancipatory feminist movement or to defend gender equality in the face of competing cultural claims. Gilligan’s relational view of the human self renders the human subject vulnerable to communitarian claims. This problem is recognised by MacKinnon, who rejects the claims of Ethics of Care theorists. However, MacKinnon, herself, continues to define feminism in opposition to the universalist discourse of human rights, preferring instead the methods and claims of civil rights movements. Civil rights movements, she says, begin in small places, close to home.

30 31 32

S Benhabib, above n 2, p 3. Ibid, p 86. Ibid.

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Because of this, she argues, they are more likely to reflect the concrete lived experiences of women’s lives. Within MacKinnon’s writings, however, the distinction between civil rights and human rights movements, becomes increasingly blurred. While her criticisms may be valid in relation to the received traditions of human rights law, once we move beyond these inherited traditions, they become difficult to sustain. Postmodern feminisms also criticise the troubled legacies of international human rights law. Underpinning the various strands of postmodern feminist critique is a suspicion of universalistic claims and a concern to ensure that the significance of difference is recognised. The institutions and procedures necessary to ensure a flourishing of difference, however, require a universalistic framework if their claims are to be sustained. A political sphere deprived of any universal reference ends up operating in line with a kind of law of the jungle, where might is right and the dominant voices determine which cultural claims will prevail. The insistence that we avoid all universal imperatives leads: ... either to an irrationalist embrace of the agnostics of opposition [Lyotard]—to put it more simply, the adoption by default of the universal principle that might is right; or to the sunny complacency of pragmatism [Rorty], in which it is assumed that we can never ground our activities in ethical principles which have more force than just saying ‘this is the sort of thing we do, because it suits us.’33

Against the background of such agnosticism, gender equality cannot make any claim to universal legitimacy. This leads to particular difficulties when feminism is faced with negotiating conflicting cultural claims. There are other difficulties with feminist critiques of human rights discourse. In each strand of feminist theory that we explore, we see that the target of critique, the universalistic discourse of human rights, is, in many ways, a straw target. Much of the feminist critique is an attack, not on human rights discourse per se, but rather on the liberal traditions of human rights inherited from Enlightenment thinkers. Many contemporary human rights theorists have sought to move beyond these troubled legacies, to expand the scope of the moral domain and to recognise the relations and networks within which any human self finds herself. Chapters 2 and 3 look at the work of two contemporary human rights theorists who have taken such steps, Alan Gewirth34 and John Rawls.35 Both Gewirth and Rawls 33 S Connor, Postmodernist Culture: An Introduction to Theories of the Contemporary (Oxford, Blackwell, 1989) 243. 34 A Gewirth, The Community of Rights (Chicago, IL, University of Chicago Press, 1996); A Gewirth, Human Rights Essays on Justification and Applications (Chicago, IL, University of Chicago Press, 1982); A Gewirth, Reason and Morality (Chicago, IL, University of Chicago Press, 1978). 35 See in particular: J Rawls, The Law of Peoples (Cambridge, MA, Harvard University Press, 1999); J Rawls, Political Liberalism (Columbia, NY, Columbia University Press, 1993); J Rawls, A Theory of Justice (Oxford, OUP, 1972).

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have addressed communitarian, and to a lesser extent, feminist critiques of rights. In the work of both Gewirth and Rawls, we see the potential to transform human rights discourse, drawing on the critiques raised by difference feminists. As we shall see, however, neither Gewirth nor Rawls realises this potential. Gewirth’s Community of Rights contains much that is of interest to feminism. Ultimately, however, Gewirth fails to address the concerns raised by difference feminists. His failure is largely due to the methods he employs, in particular, his appeal to a universal legislating reason as a normative justification for human rights claims. Within Gewirth’s justificatory strategy, inter-subjectivity is neither necessary nor possible. The individual agent is the quintessential ‘lonely geometrician’.36 To resolve moral conflicts, she need not consult with any other. She simply applies the canons of deductive and inductive logic to the normative structure of action—without consulting any other agent. The failure of rights discourse to engage with concrete others and to recognise the differentiated subject of human rights has been highlighted in the insights of relational feminism.37 Gewirth recognises the shortcomings of the isolated, atomistic subject of rights discourse. However, he fails to overcome these shortcomings. His failure is due, at least, in part, to his concern that a situated self might be vulnerable to communal claims. He is concerned to avoid the slide into moral conventionalism that we see in communitarian thinking. These concerns, of course, are well-founded and are particularly pertinent to feminists who have often found their claims denied in the name of family, community or nation. The challenge for human rights is to situate the self in gender and community, but to retain the capacity for reflection and critique. As we shall see, Gewirth ultimately fails to meet this challenge and can offer only limited assistance to the feminist project of reclaiming universalism. Chapters 3 and 4 explore Rawls’s response to this challenge and Martha Nussbaum’s ‘friendly amendment’ to Rawlsian political liberalism. In Political Liberalism (PL) and the Law of Peoples (LP), Rawls attempts to accommodate the concerns raised by communitarian and to a lesser extent, feminist critics. His Theory of Justice (TJ) is modified and applied only to political spheres. This leads to difficulties, however, for the pursuit of gender equality. Ultimately, Rawls tries too hard to accommodate the concerns of cultural conservatives. His theory of justice begins to lose its critical edge. We see this loss, in particular, in his deference to cultural claims in

36

See: Benhabib, above n 21. See, for example: M Fineman, The Autonomy Myth: A Theory of Dependency (New York, NY, New Press, 2003); M Fineman, ‘Cracking the Foundational Myths: Independence, Autonomy, and Self-sufficiency’ (2000) 8 American University Journal of Gender, Social Policy and the Law 13. 37

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matters relating to religious freedom and to relations within the family. His appeal to an overlapping consensus leaves feminism vulnerable to the demands of decent hierarchical societies. Although Rawls draws the line at the demands of ‘outlaw states’, he yields too much ground along the way, accommodating difference by drawing lines between the political and the nonpolitical. Justice as fairness is limited in scope and applied only to the political sphere. His division between the political and non-political means that many questions of gender inequality remain beyond the reach of political liberalism. As a result, feminist critiques of human rights discourse remain unanswered. Martha Nussbaum attempts to correct Rawls’s failings by proposing a ‘friendly amendment to liberalism’,38 an amendment that redraws the boundaries between the public and the private. Nussbaum seeks to return feminism to universalism and to reconcile feminism and the universalistic discourse of human rights. For Nussbaum, the moral domain extends much further into the private, domestic spheres than does Rawls’s political liberalism or his Law of Peoples. Her list of central human capabilities offers the possibility of expanding the domain of human rights discourse, of breaking down the gendered distinctions between the public and the private. Nussbaum continues, however, to appeal to an overlapping consensus as a justificatory basis for her list of central capabilities. This raises some difficulties, potentially limiting the pursuit of a critical feminist agenda. As Bruce Ackerman points out, liberalism risks losing its critical edge if it becomes no more than a rationalisation of conventional wisdom.39 On questions of gender inequality, consensus is particularly difficult to achieve. There is also the question of how cultural conflicts are to be negotiated. What institutions and procedures are necessary to negotiate such conflicts? Nussbaum’s more recent work pays greater attention to the importance of democratic participation, particularly in negotiating conflicting cultural claims.40 However, she doesn’t engage in any detail with the processes of reform, or the institutions and procedures necessary to bring about reforms. As noted earlier, this failure has been a gap in feminist critical theory. Discourse ethics and deliberative models of democracy attempt to fill the gap between critical theory and proposals for institutional reform. Chapter 5 examines this attempt, focussing, in particular, on the work of Seyla Benhabib. Benhabib proposes a dual-track approach to cultural conflicts, one that takes account both of the need for legal regulation and for an expanded moral–political dialogue. Like Nussbaum, Benhabib attempts to

38

See: M Nussbaum, Sex and Social Justice (Oxford, OUP, 1999) 38. B Ackerman, ‘Political Liberalisms’ (1994) XCI (7) Journal of Philosophy 364. 40 See: M Nussbaum, Women and Human Development: The Capabilities Approach (Cambridge, CUP, 2000). 39

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reconcile feminism and universalism. The methods, she adopts, however, offer greater possibilities of bringing about this reconciliation. Rather than appealing to an overlapping consensus or to a single comprehensive doctrine, discourse ethics relies on a virtuous circle—a dialectical process of reflecting on the ‘universal and necessary presuppositions of communicative speech.’41 These presuppositions are identified by Benhabib as the core moral principles of universal respect and egalitarian reciprocity.42 For her, these core moral principles define the limits of reasonable pluralism. They provide a normative framework within which conflicting cultural claims must be negotiated, whether arising in spheres defined as political or domestic. The compromises that we see in political liberalism are avoided, without, however, returning to the metaphysical illusions of Enlightenment thinking. B. DISCOURSE ETHICS, FEMINISM AND THE ‘CLASH OF CULTURES’

Benhabib’s appeal to the idea of an ongoing moral–political dialogue and a global dialogical community seeks to ensure that individual women are given a voice and can participate in the articulation and implementation of human rights norms. This emphasis on participation overcomes the welfarism of many proposals for reform. It also offers us a process within which cultural differences can be mediated while at the same time defining the limits of reasonable pluralism. The remaining chapters look at attempts to mediate cultural differences and to define the limits of cultural claims at an international level, in the context of reservations to the 1979 UN Convention on the Elimination of All Forms of Discrimination Against Women (hereinafter CEDAW), and at national levels in family law and reproductive rights debates in three post-colonial states, Ireland, India and Pakistan. Chapter 6 explores the so-called ‘reservations dialogue’,43 surrounding CEDAW. Invoking the requirements of domestic law, religious–cultural traditions and the rights of religious communities, many states have opted out of the expanding international human rights agenda. Treaty provisions encroaching upon relations within the family have led to particular difficulties. States have resisted this expansion of international human rights law, and adopting a Rawlsian strategy, have attempted to restrict the application

41 See J Habermas, ‘Discourse Ethics: Notes on a Program of Philosophical Justification’ in J Habermas, C Lenhardt and SW Nicholsen, (trs), Moral Consciousness and Communicative Action (Cambridge, MA, MIT Press, 1990) 43, 86. 42 S Benhabib, above n 12, p 29. 43 This term is borrowed from A Pellet (Special Rapporteur) 6th Report on Reservations to Treaties, International Law Commission, 53rd session, UN GAOR A/CN4/518, 3 May 2001.

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of human rights standards to domains labelled as private and domestic. Anti-essentialist feminists, drawing on various strands within postmodern feminisms, have criticized the increasingly universalistic stance taken by the international human rights movement. This shift away from universalism leads to difficulties in responding to the claims made by reserving states and in attempting to limit states’ claims to opt out of international human rights standards. All too often, states appeal to the rhetoric of difference, self-determination and post-colonial resistance. International human rights law is accused of reflecting the norms and values of western, liberal societies. The claims made by reserving states pose a dilemma for feminism, particularly given the increasing sensitivity to cultural and other differences within feminist movements. The shift away from universalism within feminist theory adds to these difficulties, as feminism can often claim no greater legitimacy for its claims than the assertions made by reserving states. Legalistic responses to reservations such as those rooted in the Vienna Convention treaty regime, do little to overcome the polarization of debates between reserving and objecting states. I suggest that discourse ethics and the dual-track approach to cultural conflicts, can add to this debate, giving feminism greater support for its claims while, at the same time, bringing an openness and dynamism that allows for change and for a recognition of dissenting voices within diverse cultures and traditions. This openness, in turn, creates opportunities to call international human rights law to account for its claims to universality. Chapters 7 to 10 examine the conflicting cultural claims that have arisen in three states: Ireland; India and Pakistan. These three states share common constitutional backgrounds and a post-colonial history. In each, feminism has struggled to overcome the obstacles posed by religious–cultural claims. The deference paid to such claims has led to highly gendered divisions between the public and the private and a rejection of universal norms guaranteeing equality for women within domains labelled as private. In Ireland, a conservative Roman Catholic ethos provided a legitimising ideology for the nascent nation-state. This brought with it a strict uni-duality of gender roles and identities, entrenching an ideology of separate spheres in Ireland’s constitutional text and in the fundamental rights jurisprudence that followed. The challenges that feminism has faced within the Irish context highlight the difficulties that arise in the absence of a normative framework that can claim a universal legitimacy. For many years, fundamental rights jurisprudence in Ireland developed on the basis of a conception of the good that was rooted in conservative Roman Catholic traditions. Fundamental rights were identified by appealing to the ‘ethical values, which all Christians living in the State acknowledge and accept’.44 The claims of

44

The People v Shaw [1982] IR 1, per Kenny J.

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family, community and nation left little space for the pursuit of feminist agendas. Gender was defined with reference to strict binary divisions between male and female roles. At a time of nation-building, any confusion of gender boundaries could stand only for the ‘fragile status of nationality’.45 Strictly defined gender divisions supported Ireland’s claim to a distinct cultural identity. Any questioning of those divisions, threatened to undermine Ireland’s claims. In more recent years, the Irish legal system has undergone a shift from ‘ethnos to demos’.46 The Supreme Court has rejected appeals to religious doctrine in adjudicating on questions of rights, pointing out that in a pluralist state, such appeals lack a democratic legitimacy. The constitutional amendments introduced following the Good Friday Agreement47 acknowledge the diversity of identities and traditions on the island of Ireland.48 This shift towards a heterogenous public sphere has allowed feminism to reclaim a public identity for women and to assert rights to equal citizenship that appeal, not to cultural traditions or beliefs, but to universal human rights norms. Changing family structures and the pluralisation of society has led to a backlash, however, from the Christian right. Human rights discourse, portrayed as asocial and individualistic, has been one of the main targets of the Christian right movement, which has rejected the expansion of human rights discourse into the domestic sphere, challenging, in particular, the claims to gender equality that impact upon the family, sexuality and reproductive health. The Irish government has, in recent years, distanced itself from the Christian right’s family values agenda, encouraging greater female participation in paid employment, feeding the appetite of the Celtic Tiger economy. Religious–cultural claims have, instead, been given greater rein within debates on reproductive health. Effectively the State has adopted a Rawlsian strategy, drawing lines between the political and the non-political, allowing comprehensive doctrines to flourish within the non-political sphere—defined so as to include reproductive rights. Conflicting claims that arise in the sphere of reproduction have proven difficult to regulate within a universalistic normative framework. These difficulties are largely due to a reluctance to recognise the plurality of voices that exists in matters relating to reproductive rights. As yet, the dominant political culture in Ireland

45 D Kiberd, Inventing Ireland: The Literature of the Modern Ireland (London, Vintage, 1996) 406. 46 See: J Habermas, ‘Multiculturalism and the Liberal State’ (1995) 47(5) Stanford Law Review 849; J Habermas, Postnational Constellations: Political Essays (Cambridge, Polity Press, 2001). 47 Agreement reached in the Multi-Party Negotiations, 10 April 1998 (the Good Friday Agreement), reproduced at (1998) 37 ILM 751 (hereinafter referred to as the Good Friday Agreement). 48 See: The 19th Amendment to the Constitution Act, 1998.

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remains reluctant to move beyond the confines of orthodox Roman Catholic teaching on reproductive rights. Remaining rooted in a single comprehensive doctrine, of course, limits the possibilities of reform. It also limits the pursuit of a feminist agenda. In Ireland, much of feminist jurisprudence comes within the traditions of liberal legalism. Feminist lawyers, academics and practitioners, have sought to ‘add women in’, to seek equality and justice for women, using the tools of rights discourse.49 Much has been achieved by feminist movements in Ireland. Legislative reforms, often prompted by the requirements of EU membership, have eliminated discriminatory legislative provisions that sought to constrain the roles and opportunities provided to women. The limits of liberal legalism, however, are increasingly being recognized. Anti-discrimination law, in Ireland and the throughout the EU, has done little to tackle the broader structural aspects of gender inequality. Legislative measures to promote gender equality have focused primarily on the pursuit of market equality. Yet, despite guarantees of equal pay and equal treatment, gender remains a significant factor in poverty and social exclusion. Feminist lawyers in Ireland are increasingly questioning the limits imposed by legal liberalism and seeking, not only to add women in to existing laws and legal processes, but to engage in a normative reconstruction of the legal sphere.50 Discourse ethics, and a dualtrack approach to conflicting cultural claims, can assist in this process of reconstruction, appealing to universal norms while at the same time supporting immanent critiques within religious communities. A reluctance to accept difference within religious–cultural traditions can also be seen in constitutional debates in Pakistan, where gender equality is frequently subordinated to religious–cultural claims defining and limiting women’s status. As elsewhere, these claims have been given greater rein in domains labelled as private—the family and domestic sphere. Muslim personal law has been exempted from the requirement to comply with the guarantees of fundamental rights. This division between the public and the

49 See, for example: A Connolly (ed), Gender and the Law in Ireland (Dublin, Oaktree Press, 1993). 50 See: L Connolly, The Irish Women’s Movement: From Revolution to Devolution (London, Palgrave, 2002); C Coulter, ‘“Hello Divorce, Good-bye Daddy”: Women, Gender and the Divorce Debate’ in A Bradley and MG Valiulis, (eds), Gender and Sexuality in Modern Ireland (Amherst, MA, University of Massachusetts Press, 1997) 275; C Coulter, The Hidden Tradition: Feminism, Women and Nationalism (Cork, Cork University Press, 1993); R Fletcher, ‘Post-colonial Fragments: Representations of Abortion in Irish Law and Politics’ (2001) 28(4) Journal of Law and Society 568; S Mullally, ‘Promoting Gender Equality: Beyond the Limits of Non-discrimination’ in C Costello and E Barry, (eds), Equality in Diversity (Dublin, Irish Centre for European Law and the Equality Authority, 2003) 295; S Mullally, ‘Making Women Count in Ireland’ in S Nott and F Beveridge, (eds), Making Women Count: Integrating Gender into Law and Policy Making (London, Ashgate, 2000) (with M Donnelly and O Smith).

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private has also limited Pakistan’s participation in international human rights treaties. Pakistan’s ratification of CEDAW and the UN Convention on the Rights of the Child51 (CRC) was accompanied by sweeping reservations appealing to Islam and to the requirements of domestic law. Feminist movements in Pakistan have adopted a range of strategies in attempting to pursue their claims. Drawing on insider methodologies, Farida Shahid, Shaheen Sardar-Ali and others, have highlighted egalitarian traditions within Islam.52 However, the prevailing patriarchal interpretations of Islam continue to constrain and limit the possibilities for reform. Feminist readings of Islam have been met with competing readings that deny equal recognition of women’s moral agency. Against this background, a transformation of the legal sphere is possible only through appeals to norms that can claim a universal legitimacy and that can support the reinterpretation of the Shari’ah proposed by Muslim feminists. Drawing on a comprehensive doctrine as a justificatory basis for human rights claims inevitably limits the possibilities of reform. Recognizing these limits, feminists in Pakistan have also called for a secular legal framework, rejecting the process of reinterpreting Islam adopted by Muslim feminists. Asma Jehangir, for example, has pointed to the need for a more heterogenous public sphere, one that can accommodate diverse religious beliefs within a framework of human rights.53 For some, however, this strategy seems to situate Islam in opposition to the pursuit of women’s human rights. In place of this oppositional approach, a dual-track approach, combining a universalistic framework with ongoing moral–political dialogue within Islam, would allow for a cultural mediation of universal norms. Insider methodologies, drawing on the support of a universalistic framework can generate the kind of consensus necessary for the effective implementation of human rights norms. To enable such a dialogue to take place, however, there first needs to be an uncoupling of orthodox Islam and the legal–political culture. Attempts at such an uncoupling can be seen in the field of Muslim personal law, where changes have been brought about drawing on the standards set by CEDAW and appeals to universal norms. The final chapter examines the conflicting claims that arise between feminism and the politics of multiculturalism, focusing on debates in India. Feminist movements in India have struggled for many years to negotiate the layers of cultural identity that define the boundaries of women’s human

51 Convention on the Rights of the Child, adopted 20 November 1989, entered into force 2 September 1990, GA Res 44/25, 44 UN GAOR, Supp (No 49), UN Doc A/44/49 (1989) 166. 52 See generally: F Shahid, et al, (eds), Shaping Women’s Lives: Laws, Practices and Strategies in Pakistan (Lahore, Shirkitgah, 1998); SS Ali, Gender and Human Rights in Islam and International Law (The Hague, Kluwer, 2000). 53 See: A Jahangir and H Jilani, The Hudood Ordinances: A Divine Sanction? (Lahore, Rhotac Books, 1990).

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rights. Although India’s constitutional text directs the Government to develop a uniform civil code,54 communal tensions and the claims of religious groups have hindered this process and, with it, the extension of human rights discourse into the domestic sphere. The accommodation of religious–cultural differences has led to a highly gendered division between the public and the private, one that allows comprehensive doctrines to flourish within spheres that are defined as ‘non-political’. An overlapping consensus supporting family law reform has proven elusive as non-interference in the patriarchal norms of religious communities becomes the requirement of a politics of recognition. Debates in India following on from the Shah Bano case highlight the extent to which gender equality may be compromised by yielding to the dominant voices within a particular religion or cultural tradition.55 As the Supreme Court noted in Danial Latifi and Anr v Union of India,56 the pursuit of gender justice raises questions of a universal magnitude. Responding to those questions requires an appeal to norms that claim a universal legitimacy. Liberal feminist demands for a uniform civil code, however, have pitted the women’s movement against proponents of minority rights and claims for greater autonomy for minority groups. Against the background of growing communal tensions and increasing Hinduisation of politics, the women’s movement has recognised the need for more complex strategies— strategies that encompass the diversity of women’s lives and create a sense of belonging amongst women with diverse religious–cultural affiliations. Liberal theories of rights that abstract from the concrete realities of women’s daily lives have not always addressed the institutions and procedures necessary to build that sense of belonging. This is where the insights of discourse ethics theorists can assist us. Deliberative models of democracy developed by discourse ethics theorists recognise the need for ‘differencesensitive’ processes of inclusion. Such processes include group-specific rights, guarantees of cultural autonomy, compensatory programmes and other arrangements designed to protect the rights of minorities to a limited form of self-determination. Adopting such measures can also lead to difficulties, however. Groupspecific rights bring about further fragmentation and conflict. This is the so-called ‘Balkanisation’ phenomenon. Rather than creating a vibrant multicultural society, group-differentiated citizenship can lead to ‘a multiplicity of subcultures closed off from one another.’57 While this may satisfy

54

See: Art 45 of the Directive Principles of State Policy, Constitution on India. See: AA Engineer, The Shah Bano Controversy (Hyderabad, Orient Longman, 1985). 56 Case No Writ Petition (civil) 868/1986, 28 September 2001, available at http://www.judis.nic.in 57 J Habermas, The Inclusion of the Other: Studies in Political Theory (Cambridge, MA, MIT Press, 1998) 146. 55

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Introduction

communitarian demands for limited sovereignty and external self-determination, it is problematic for feminism. Where groups are closed off from one another, the possibility of supporting internal struggles of resistance becomes ever more limited. Group-specific rights do not necessarily guarantee internal self-determination and, as we shall see, women within minority groups are frequently subjected to internal restrictions. A dual-track approach recognises both the need for an expanded moral and political dialogue around issues of human rights and a cosmopolitan law that protects internal self-determination for individual group members. However, if a cosmopolitan law is to gain legitimacy amongst diverse cultural groups, it must be divorced from any one comprehensive conception of the good. The majority culture cannot dictate the parameters of political discourse, or define the general political culture in which all groups are to share equally. This painful process of uncoupling, however, should not tear a society apart. The cosmopolitan law, and the institutions and processes of a deliberative democracy, must also be sufficiently inclusive to avoid fragmentation and conflict. This is the challenge faced by the women’s movement in India and by feminist movements in any multicultural society. In focusing on post-colonial states, we also see the alliances that have developed between feminism and postmodernism, and the problems that these alliances can bring. Postcolonial theory shares with anti-essentialist feminism an aversion to universalist moral theories and a concern with the local, the particular. Spivak is categorical in her condemnation of the universal: ‘there can be’, she says, ‘no universalist claims in the human sciences’.58 Bhabha notes that all the major categories of postcolonial theory, hybridity, border-crossing, indeterminacy, ambivalence, ‘refuse every boundary as a matter of principle.’59 This is problematic for feminism. It raises, yet again, the difficulty of specifying the limits of reasonable pluralism, leaving feminism vulnerable to communitarian claims and the illiberal demands of inherited traditions. Discourse ethics offers much to assist in a normative reconstruction of human rights theory and practice. The anti-universalist critique of human rights discourse is justifiably critical of the received traditions of human rights law. Missing within this critique, however, is a failure to recognise the ‘detective aspect’60 of human rights discourse and the transformative potential of a truly universal discourse. Human rights discourse guarantees a hearing to each individual voice. Thus, it provides the means to expose its

58 GC Spivak, Foundations and Cultural Studies: Questioning Foundations: Truth/Subjectivity/Culture (London, Routledge, 1993) 153. 59 HK Bhabha, The Location of Culture (London, Routledge, 1994) 170. 60 See: L Wingert, Türöffner zu geschlossenen Gesellschaften (Frankfurter, Rundschau, 1995), cited in J Habermas, above n 17, p 120.

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own failures and shortcomings.61 At the same time as demanding the inclusion of the other, it functions as a sensor for exclusionary practices exercised in its name. This ‘detective aspect’ is more likely to function where the right to democratic participation is guaranteed. As Habermas, Benhabib and others have argued, human rights are internally linked to democracy. This book argues that this internal relation, if fully realized, could address the criticisms raised by difference feminisms and assist in negotiating the many conflicting cultural claims that limit the pursuit of a global feminist agenda.

61

J Habermas, above n 17, p 120.

1 The Discourse of Human Rights: ‘An Active Enemy of Women’s Progress’1? ... just as women have begun to become human, even as we have begun to transform the human so it is something more worth having and might apply to us, we are told by high theory that the human is inherently authoritarian, not worth having, untransformable, and may not even exist—and how hopelessly 19th century of us to want it.2

M

UCH OF FEMINIST legal theory falls within the liberal paradigm. In recent years, however, feminism has taken a relational turn, emphasising the location of the human self in networks of relationships and the importance of values of solidarity and connection. This chapter examines three main strands within feminist theory: feminist Ethics of Care,3 Catharine MacKinnon’s radical feminism and finally postmodern feminisms. Each strand shares a common concern with difference, difference between women and men and difference between women themselves. Within each strand of feminist theory, we find possibilities for a normative reconstruction of human rights theory and practice. Ultimately, however, this process of reconstruction must continue to appeal to universal norms and principles, if feminism is to retain its critical, emancipatory edge.

1

See: M Nussbaum, Sex and Social Justice (Oxford, OUP, 1999) 56. C MacKinnon, ‘Symposium on Unfinished Feminist Business: Some Points Against Postmodernism’ (2000) 75 Chicago-Kent Law Review 687, 711. 3 I will focus primarily on Carol Gilligan’s work. The feminist ethics of care has been explored and developed in the work of many feminist thinkers. See: M Fineman, The Autonomy Myth: A Theory of Dependency (New York, NY, New Press, 2003); M Fineman, ‘Contract and Care’ (2001) 76(1) Chicago-Kent Law Review 1403; E Kittay, Love’s Labor: Essays on Women, Equality, and Dependency (New York, NY, Routledge, 1999); M Fineman and DT Meyers, (eds), Women and Moral Theory (Totowa, NJ, Rowman & Littlefield, 1987); N Noddings, Caring, A Feminine Approach To Ethics and Moral Education (Berkeley, CA, University of California Press, 1984). 2

2 Discourse of Human Rights: An Enemy of Women’s Progress A. FEMINIST ETHICS OF CARE

Although Carol Gilligan’s claim to have discovered a distinctively female mode of moral reasoning is no longer widely accepted, her work continues to raise an important challenge to the theory and practice of human rights. For feminism, the fundamental question raised by Gilligan still remains. Can an Ethic of Care better serve the interests of feminism than an Ethic of Justice and rights? The salience of appeals to community in contemporary political theory reflects an ethical turn, a nostalgia for questions of the moral, the good, the virtuous.4 It is a turn that owes much to Carol Gilligan’s studies of moral development and her feminist Ethics of Care.5 Gilligan puts forward her proposals for an Ethic of Care in her book, In a Different Voice. She argues that there are two moral codes, a feminine one based on caring and the maintenance of relationships and networks, the Ethic of Care, and a masculine one based on a more abstract systemisation of rights and rules, the Ethic of Justice. At stake between these two codes are differences in: (a) moral capacities—learning moral principles (justice) versus developing moral dispositions (care); (b) moral reasoning—solving problems by seeking principles that have universal applicability (justice) versus seeking responses that are appropriate to the particular case (care) and; (c) moral concepts—attending to rights and fairness (justice) versus attending to responsibilities and relationships (care).6 Gilligan also argues that two competing visions of the human self underlie these distinct moral codes. She claims that the prevailing values of justice and autonomy imply a view of the individual as separate and of relationships as either hierarchical or contractual. In contrast, she says, the values of care and connection, salient in women’s thinking, imply a view of the self and the other as interdependent and of relationships as networks, created and sustained by attention and responsibility.7 By recovering ‘the lost Ethic of Care’, Gilligan seeks to change the dominant image of the human self and to correct ‘an individualism’ within moral theory that has been centred within a ‘single interpretive framework.’8 Rights discourse, she argues, is part of that framework having developed in response to a limited set of questions. These questions, she

4 See generally, N Lacey, Unspeakable Subjects: Feminist Essays in Legal and Social Theory (Oxford, Hart Publishing, 1998). 5 C Gilligan, In a Different Voice: Psychological Theory and Women’s Development (Cambridge, MA, Harvard University Press, 1982). 6 W Kymlicka, Contemporary Political Philosophy: An Introduction (Oxford, Clarendon Press, 1990) 265. 7 C Gilligan, ‘Remapping the Moral Domain: New Images of the Self in Relationship’ in TC Heller, M Sosna and DE Wellbery, (eds), Reconstructing Individualism: Autonomy, Individuality, and the Self in Western Thought (Stanford, CA, Stanford University Press, 1986) 237, 242. 8 Ibid, p 239.

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paraphrases as: ‘What are the circumstances in which essentially solitary individuals might agree to come together in civil society, what would justify them in doing so and how might conflict be prevented when they do?’9. Gilligan argues that this limited and partial view of human interaction has defined the scope of ethics of justice and rights. Human interdependence is presumed to be optional. The facts of human biology, in particular, reproductive biology are ignored. The role of carers who spend their daily lives not in avoiding conflicts with ‘strangers’, but in caring for dependent others is also ignored. Alison Jaggar points out that the assumption of innate human selfishness and competitiveness, ‘overlooks the fact that millions of people (most of them women) have spent millions of hours for hundreds of years giving their utmost to millions of others.’10 And, of course, the long overlooked ‘moral proletariat’ is mostly women.11 As Fineman notes, the ‘assumed family’ presumes that caretakers take on the responsibility of caring for dependent others, with little or no recognition or accommodation for caring work, either by the market-place or the State.12 If theoretical account were taken of these facts, the liberal problematic would be transformed and egoism, competitiveness and conflict would themselves become puzzling and problematic.13 In place of the ‘isolated, atomistic’ self associated with liberal individualism, Gilligan presents a relational view of the self and a dialogic view of identity formation, which, she says, can be arrived at by paying closer attention to the experience of women. For women, Gilligan claims, ‘the self is known through the experience of connection, defined not by reflection but by interaction, the responsiveness of human engagement.’14 This relational view of the self is reflected in the Ethic of Care. Gilligan’s relational view of the self is an attractive one. Her thesis, linking empirical claims about psychological modes of development to proposals for a feminist Ethic of Care, is a powerful one. However, Gilligan’s claim to have discovered a distinctively ‘feminine’ mode of moral reasoning has attracted much criticism. Her thesis repeats many of Western political philosophy’s attempts to distinguish the intuitive, emotional dispositions said to be required for women’s domestic life from the rational, impartial and

9 AM Jaggar, Feminist Politics and Human Nature (Totowa, NJ, Rowman & Allanheld, 1983) 40. 11 A Baier, ‘The Need for More than Justice’ in V Held, Justice and Care: Essential Readings in Feminist Ethics (Boulder, CO, Westview Press, 1995) 47, 49–50. 12 See: M Fineman, ‘Cracking the Foundational Myths: Independence, Autonomy, and Selfsufficiency’ (2000) 8 American University Journal of Gender, Social Policy and the Law 13, and ibid, 2003, above n 3. 13 Ibid. 14 C Gilligan, 1986, above n 7, p 241.

4 Discourse of Human Rights: An Enemy of Women’s Progress dispassionate thought said to be required for men’s public life. Feminism has devoted a great deal of energy to repudiating these claims. Many feminists disagree with the claim that different modes of moral reasoning correlate with gender divisions. To the extent that correlations can be found, disagreement has arisen as to why such differences exist. Powerless groups often learn empathy because they are dependent on others for protection. As Susan Okin argues, women, as subordinates in a male-dominated society, have to develop psychological characteristics that please the dominant groups and fulfil its needs.15 Women are brought up from the very earliest years in the belief that their ideal of character is the very opposite to that of men: ‘not self-will, and government by self-control, but submission, and yielding to the control of others.’16 Women and oppressed classes or minority groups are often associated with an Ethic of Care precisely because of the constraints imposed upon them by dominant groups.17 This argument is put strongly by Catharine MacKinnon. She argues that any special ability women may have for caring and connection can be attributed to the negative aspects of subordination. Women value care, she says, ‘because men have valued us according to the care we give them.’18 Affirming women’s differences perpetuates the belief that those attributes traditionally associated with women really are women’s—rather than simply those that have been attributed to women.19 1. Reason versus Sentiment Other difficulties arise with the feminist Ethic of Care. Care theorists emphasise the role of sentiment and emotion in moral reasoning. Without a well-developed moral disposition, they argue, we cannot know what the principles of justice require of us when faced with concrete moral problems. Moral duties cannot be fulfilled by ‘cold unfeeling moral agent[s].’20 Quoting Hume, Annette Baier argues that the ‘cold jealous virtue of justice’ may yet prove to be too cold.21 Respect for rights, she says, is quite compatible with a great deal of human misery and suffering. This argument is taken up by 15 SM Okin, ‘Thinking Like a Woman’ in D Rhode, (ed), Theoretical Perspectives on Sexual Difference (New Haven, CT, Yale University Press, 1990) 145, 154. 16 JS Mill, ‘On the Subjection of Women’ (1869) in SM Okin, (ed), (Indianapolis, IN, Hackett, 1988) 15. 17 S Harding, ‘The Curious Coincidence of Feminine and African Moralities: Challenges for Feminist Theory’ in E Kittay and D Meyers, (eds), Women and Moral Theory (Savage, MN, Rowman & Littlefield, 1987) 296, 307. 18 CA MacKinnon, Feminism Unmodified Discourses on Life and Law (Cambridge, MA, Harvard University Press, 1987) 39. 19 Ibid. 20 CH Sommers, ‘Filial Morality’ in E Kittay and D Meyers, (eds), Women and Moral Theory (Savage, MD, Rowman and Littlefield, 1987) 69, 78. 21 A Baier, 1995, above n 11, p 51.

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Richard Rorty. Rorty frequently invokes the work of Care theorists such as Annette Baier to support his arguments for a ‘liberalism without foundations’. In his essay, ‘Human rights, rationality and sentimentality’, Rorty argues that we need to overcome our suspicion that sentiment is too weak a force for moral reasoning.22 He points to the emergence of a human rights culture which, he says, seems to owe nothing to increased moral knowledge and everything to hearing sad and sentimental stories—to what Annette Baier refers to as a ‘progress of sentiments’. But could or should this ‘progress of sentiments’ replace appeals to rights-based moral principles? Sad and sentimental stories are not enough. We have to move beyond those stories, to attempt an explanation and to identify possible responses to a problem. This requires an appeal to principles, the recognition of a duty to respond. Appeals to sentiment and emotion can help to garnish support for the enforcement of moral principles. However, they cannot deny the necessity of such principles. As Hannah Arendt has noted, the capacity for exercising an ‘enlarged mentality’, the ability to take the standpoint of the other, is not empathy. In fact, an empathetic nature may make it difficult to draw the boundaries between self and other, such that the standpoint of the ‘concrete other’ can emerge.23 Allowing distinct voices to be heard requires principles, institutions and procedures that safeguard rights to participate for those who are often silently excluded. Relying solely on appeals to moral sentiment also ignores the value of public reason, the need for public standards of justification and for democratic dialogue. These values have been central to much of feminist theory. Emphasising moral disposition and the role of sentiment runs the danger of denying the validity of such values. The view that moral problems should be solved not by appeal to public rules or principles but through the exercise of moral sensitivities by the ‘morally mature agent’ has considerable conservative potential. Without moral principles, we cannot ensure the democratic accountability of moral reasoning. At times, it seems as though Care theorists ignore this need.24 2. Ethical Particularism Allied with the emphasis on sentiment and emotion is a concern with the obligations that arise from special relationships—ethical particularism in other words. Ethic of Care theorists argue that the universalist ethic of rights cannot accommodate ethical particularism. Ethical particularism 22 R Rorty, ‘Human Rights, Rationality, and Sentimentality’ in S Shute and S Hurley, (eds), On Human Rights: The Oxford Amnesty Lectures (New York, NY, Basic Books, 1993) 112. 23 S Benhabib, Situating the Self: Gender, Community and Postmodernism in Contemporary Ethics (Cambridge, Polity Press, 1992) 168. 24 See: W Kymlicka, 1990, above n 6.

6 Discourse of Human Rights: An Enemy of Women’s Progress requires that preferential consideration be given to the interests of those with whom one has a special relationship—members of one’s family or local community, for example. Ethical particularism is defined in opposition to ethical universalism, which is presumed to require us to treat all persons with equal impartiality. This claim, however, is based on a misunderstanding of human rights theory and practice. The ethical universalist principle of human rights can provide for and indeed requires various kinds of partiality and differential treatment. The concept of equality underpinning CEDAW, for example, is a substantive one, requiring differential treatment of differently situated individuals.25 International law provides for distinct sets of standards to safeguard the rights of diverse groups, including refugees, migrant workers, children. Universal human rights principles, however, provide a limit on the pluralistic differentiation permitted. As Gewirth points out, many form of particularism cannot be morally justified and would not be defended by feminism. Racism and sexism, for example, are not justified forms of particularism. Neither is national chauvinism nor restrictive asylum and refugee laws.26 Ethical particularism risks excluding many of those who fall outside family/community networks. This conservative potential can be seen, for example, in Richard Rorty’s appeal to a ‘solidarity’ without ‘common humanity’. Our sense of solidarity, Rorty argues, is strongest, ‘when those with whom solidarity is expressed are thought of as “one of us”, where “us” means something smaller and more local than the human race.’ Because she is a human being, he argues, is ‘a weak, unconvincing explanation of a generous action.’27 A person’s claim to moral consideration depends, therefore, on being one of us, being of the community. Rorty himself insists that the force of any ‘we’—any sense of moral community—must depend on the contrast with a human ‘they’, on enclosing something smaller and more local than the human race. The implications of this line of reasoning can be seen in the following statement: ‘I claim that the force of “us” is, typically, contrastive in the sense that it contrasts with a “they” which is also made up of human beings—the wrong sort of human beings.’28 The inclusionary surface of the language of community, as Nicola Lacey has pointed out, often masks the exclusion of the ‘hated Other’.29 Principles of human rights guard against such exclusionary tendencies, distinguishing between justified and unjustified forms of ethical particularism. 25 See: General recommendation No 25, on Art 4, para 1 of the Convention on the Elimination of All Forms of Discrimination Against Women, on temporary special measures, para 8. 26 A Gewirth, ‘Ethical Universalism and Particularism’ (1988) LXXXV(6) Journal of Philosophy 283, 298. 27 R Rorty, Contingency, Irony and Solidarity (Cambridge, CUP, 1989) 190–91. 28 Ibid, pp 190–91. 29 N Lacey, above n 4, p 139.

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The Ethic of Care could, of course, embrace the language of ethical universalism. Gilligan herself avoids the language of universality. However, the ‘different voices’ articulated in her study, seem to indicate that women’s care and sense of responsibility for others are frequently universalised. A caring perspective could express as fully universalizable a morality of social concern as does the language of justice and rights. A caring perspective is only universalizable, however, if one appeals to something like a shared humanity or a universal principle of equal moral worth. Once considerations of this kind are introduced, then the distinctions between a Care perspective and an Ethic of Justice and rights become blurred.30 3. Rights versus Responsibilities Perhaps the most enduring challenge raised by Ethic of Care theorists is the claim that rights discourse promotes a kind of asocial individualism. Gilligan argues that rights are essentially self-protection mechanisms that can be respected simply by leaving others alone. Rights-based duties, she says, are limited to reciprocal non-interference. In contrast, she argues, accepting responsibility for others requires some positive concern for their welfare.31 The emphasis on responsibilities rather than rights finds echoes in communitarian and duty-based legal philosophies, both of which have gained much momentum in recent years and are critical of the international human rights movement. Care theorists share the communitarian nostalgia for community and for communal values, a nostalgia, they argue, that cannot be satisfied by rights discourse.32 This nostalgia can be found in writings on duty based legal traditions,33 in appeals to ‘Asian values’ and in calls for a ‘Universal Declaration of Human Responsibilities’.34 In 1998, on the 50th anniversary of the Universal Declaration of Human Rights, this nostalgia took on a concrete shape, this time in the form of a

30 Sher notes that a universalisable care perspective would seem to be at least closely related to that of the familiar impartial and benevolent observer, found in Kantian and other universalist theories. G Sher, ‘Other Voices, Other Rooms? Women’s Psychology and Moral Theory’ in E Kittay and D Meyers, (eds), Women and Moral Theory (Savage, MD, Rowman & Littlefield, 1987) 178, 184. 31 C Gilligan, (1982), above n 5, pp 22, 136, 147. 32 This criticism can be found also in Marxist critiques of rights. In his essay, ‘On the Jewish Question’, Marx argued that the individual subject of rights is ‘withdrawn behind his private interests and whims and separated from the community’. K Marx, R Livingstone and G Benton, (trs), Early Writing (Harmondsworth, Penguin, 1975) 230. 33 R Cover, ‘Obligation: A Jewish Jurisprudence of the Social Order’ (1987) 5 Journal of Law and Religion 65; MJ Broyde, ‘Human Rights and Human Duties in the Jewish Tradition’ in MJ Broyde and J Witte, (eds), Human Rights in Judaism (Jerusalem, Jason Aronson, 1999). 34 See ‘A Universal Declaration of Human Responsibilities’ proposed by the InterAction Council, 1 September 1997, reproduced in H Steiner and P Alston, International Human Rights in Context: Law, Politics and Morals (Oxford, OUP, 2000) 351.

8 Discourse of Human Rights: An Enemy of Women’s Progress draft ‘Declaration of Human Responsibilities’. The Declaration was drafted by the Inter-Action Council, a non-governmental body established in 1983 under the initiative of the late Prime Minister Takeo Fukuda of Japan. The Council’s membership includes academics, activists, politicians and religious leaders from all parts of the globe. An initial reading of the declaration suggests that it owes more to communitarian thinking than to feminism. However, in employing the language of responsibilities rather than rights, it addresses the concerns voiced, in particular, by Ethic of Care theorists. The Council argues that an exclusive insistence on rights results in ‘conflict, division, and endless dispute.’35 A declaration of human responsibilities is necessary, they argue, to bring freedom and responsibility ‘into balance’, to move ‘from the freedom of indifference to the freedom of involvement’.36 These ideas are also echoed also in writings on duty-based legal traditions. Unlike other human rights treaties, the African Charter on Human and Peoples’ Rights includes a chapter on the duties of the individual—towards the family, society, the State and the international community.37 For feminist commentators, this statement of duties raises questions as to the limits of such duties and the extent to which restrictions on individual autonomy may be justified by such appeals.38 In another statement of duties, the Irish Constitution provides that ‘a woman should not be forced by economic necessity to neglect her duties within the home.’39 This gendered statement of duties firmly situates Irish women within the domestic sphere, presuming the legitimacy of demands made on her time. Underlying the move towards an ethics of responsibility is a fundamental misunderstanding of the nature of human rights. It is clear from Gilligan’s writings that she presumes a libertarian view of rights, a view of rights as

35

See the Preamble to the proposed Universal Declaration of Human Responsibilities, ibid. See the InterAction Council’s Introductory Comment: ‘It is time to talk about human responsibilities’, 1 September 1997, p 1. 37 Adopted 27 June 1981, entered into force 21 October 1986, OAU Doc CAB/LEG/67/3 Rev 5 (chapter II). 38 These questions are partly addressed in the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, adopted at the second ordinary meeting of the Assembly of the African Union, Maputo, Mozambique, July 2003 (not yet in force). CAB/LEG/66.6/Rev.1. Available at: http://www.africa-union.org/home/Welcome.htm. Art 5 of the Protocol addresses the duty of States to eliminate harmful traditional practices, defined as: ‘all behavior, attitudes and/or practices which negatively affect the fundamental rights of women and girls, such as their right to life, health, dignity, education and physical integrity’, (para (e)). On ‘Health and Reproductive rights’, the Protocol goes further than any other international legal instrument, setting out the duty of States ‘to protect the Reproductive rights of women by authorising medical abortion in cases of sexual assault, rape, incest, and where the continued pregnancy endangers the mental and physical health of the mother or the life of the mother or the fetus.’ For a discussion of African feminist perspectives on human rights, see: J Oloka-Onyango and S Tamale, ‘“The Personal is Political” or Why Women’s Rights are Indeed Human Rights: An African Perspective on International Feminism’ (1998) 17(4) Human Rights Quarterly 691. 39 Art 41.2. See further below ch 7. 36

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protections against unwanted governmental interference, as freedoms from rather than rights to. To use Isaiah Berlin’s terms, it is a concern with negative rather than positive liberty.40 It is a view of rights that is prevalent within the constitutional jurisprudence of the US—a definition of rights as freedoms from rather than rights to. International human rights law, however, has begun to move away from this conception of rights. Properly understood a duty or responsibility is the correlative of any rights-claim, whatever the justificatory basis offered for that claim. The idea of duties or responsibilities is not antithetical to human rights principles. In fact, it is of the very essence of a human rights claim. For each rights-claim, there is a respondent, a duty-bearer. It may be the state. It may be another individual. A commitment to human rights, therefore, ties us into a network of reciprocal obligations. Take, for example, Gewirth’s fundamental principle of human rights, the ‘Principle of Generic Consistency’: ‘Act in accord with the generic rights of your recipients as well as of yourself’.41 Gewirth argues that rights claims can be understood as entailing ‘a communitarian conception of human relations, relations of mutual assistance, social solidarity and important kinds of equality.’42 Understood in this way, the principle of human rights becomes a principle of social solidarity. The opposition between rights and responsibilities, or a rights and duty-based morality begins to collapse. A fundamental distinction remains, however. That distinction concerns the vision of the self underlying human rights based traditions on the one hand and duty-based traditions on the other. A commitment to human rights implies a limit on the bonds of community, to use Will Kymlicka’s phrase, a limit on the ‘internal restrictions’ that a community can place on its members.43 For feminists, this limit is one that cannot be dispensed with. Though feminism can and must recognise the location of the human self within networks of relationships, without a commitment to the overriding priority of individual autonomy, feminism loses its critical potential. It can only claim, therefore, a partial and strategic alliance with communitarianism. To the extent that communitarian or duty-based legal traditions deny the overriding priority accorded to individual autonomy, they cannot be reconciled with the concerns and interests of feminism. At the root of the problem is the embedded or situated vision of the human self underlying communitarian philosophies. Communitarians, such as Michael Sandel, emphasise the constitutive character of social roles and 40

I Berlin, Four Essays on Liberty (London, OUP, 1969). See: A Gewirth, The Community of Rights (Chicago, IL, University of Chicago Press, 1996), A Gewirth, Human Rights: Essays on Justification and Applications (Chicago, IL, University of Chicago Press, 1982); A Gewirth, Reason and Morality (Chicago, IL, University of Chicago Press, 1978). See further chapter two below. 42 A Gewirth, 1996, ibid, p 6. 43 W Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (Oxford, Clarendon Press, 1995). 41

10 Discourse of Human Rights: An Enemy of Women’s Progress advocate a ‘situated’ vision of the self. The isolated, atomistic autonomous self, is not, he argues, a free and rational agent, but rather a person wholly without character, ‘without moral depth.’44 This vision of the self has much in common with the relational self proposed by Gilligan and other Ethic of Care theorists. However, it raises considerable difficulties for the feminist agenda. What, for example, ‘are the precise moral bearings of the self’s being constituted by the communities to which it belongs?’45 Must the demands or obligations deriving from communities or networks of relationships always be fulfilled? Is the freedom and autonomy of the self exhausted by its membership in communities, by its integration into networks of relationships? The demands of the community have often been problematic for feminism. As Benhabib and Cornell put it, ‘situated females often find it impossible to recognise their true selves amidst the constitutive roles that attach to their person.’46 Or to quote from Tagore’s, Letter from a Wife (1914): ‘In your joint family, I am known as the second daughter-in-law. All these years, I have known myself as no more than that.’ Situated and relational visions of the human self come perilously close to a kind of moral conventionalism that does not distinguish between the self and its roles. Despite its shortcomings, however, the feminist Ethic of Care can still offer much to the project of transforming the theory and practice of human rights. Martha Minow has taken on this task. In her work on US family law, she develops a concept of relational rights and responsibilities, which, she argues, best translates the insights of Ethic of Care theorists into public law and policy.47 She identifies three distinct strands within contemporary legal and political theory on the family: contract-based, community-based and rights-based. None, she argues, captures the paradoxical features of family life. Contract-based theories view family relationships solely as contractual relationships, ignoring their affective and emotional bases. Communitybased theories look to existing moral standards within the community to determine the appropriate norms and standards for the regulation of family life. In doing so, they risk marginalising the perspectives of non-traditional families who may not have strong political representation within a community. Rights-based theories, Minow argues, pit individuals against each other without adequate attention to the web of relationships within which individuals find themselves. 44

MJ Sandel, Liberalism and the Limits of Justice (Cambridge, CUP, 1982) 179. A Gewirth, ‘Human Rights and Conceptions of the Self’ (1988) 18 Philosophia (Israel) 129, 145. 46 S Benhabib and D Cornell, (eds), Feminism as Critique: On the Politics of Gender (Minneapolis, MN, University of Minnesota Press, 1987) 12. 47 M Minnow and ML Shanley, ‘Relational Rights and Responsibilities: Revisioning the Family in Liberal Political Theory and Law’ (1996) 11(1) Hypatia 4. See also: M Minow, Not Only for Myself: Identity, Politics and the Law (New York, NY, New Press, 1997); M Minow, Making all the Difference Inclusion, Exclusion and American Law (Ithaca, NY, Cornell University Press, 1990). 45

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However, Minow is not rejecting the idea of rights per se, but rather the liberal individualism at the heart of legal and political culture in the US. Although she argues that an Ethic of Care cannot be simply injected into existing legal rules and standards, she does not suggest abandoning the prevailing Ethic of Justice. She argues that the principles of justice must be applied to political practice to ensure an equality of participation and a radical democratisation of law and policy-making processes. She proposes a view of rights as claims grounded in and arising from human relationships—’intimate associations’.48 A society cannot be well-ordered, she says, if it is not characterised by an Ethic of Care. We cannot simply presuppose the contribution made by care-givers. Economic and political structures must take upon themselves ‘the primary responsibility of maintaining structures that will support the principles of care.’49 Minow argues for a more inclusive and trustworthy political process, one in which exclusions and disadvantages based on gender, race, ethnicity and class no longer play a role. She argues for an expanded concept of rights, one that does not presume an isolated atomistic human self, one that recognises the need to support the work of carers and one that pays attention to the process through which law and policy is formed. A similar concern with rights and responsibilities can be seen in Martha Fineman’s work on welfare reform, and in her critique of the nuclear family. Fineman argues for a more just allocation of responsibility for caring work and highlights the extent to which existing institutions of society assume a deeply gendered allocation of caring responsibilities, without acknowledging the contribution made by such work. The ‘foundational myths’ of contemporary society—independence, autonomy, self-sufficiency—render invisible the work of those caring for dependent others.50 The rhetoric of rights plays a role in reinforcing such myths. Fineman does not suggest, however, that we abandon rights discourse. Rather she argues for a meaningful redistribution of responsibility for dependency, and a national dialogue around the collective stake in caring work. At the root of Fineman’s arguments is a concern with distributive justice, and with securing the right to autonomy and independence for those who have traditionally taken on caring roles and functions.

48 Ibid, p 23, quoting K Karst, ‘The Freedom of Intimate Association’ (1980) 89(4) Yale Law Journal 624. 49 E Kittay, Taking Dependency Seriously: Equality, Social Cooperation and The Family and Medical Leave Act: Conference on Feminism and Social Action (University of Pittsburgh, 1993), quoted in M Minow, (1996), above n 47, p 24. 50 M Fineman, above n 3 and n 12.

12 Discourse of Human Rights: An Enemy of Women’s Progress The work of Minow and Fineman does not point to an abandonment of rights-based theories or a return to an Ethic of Care. Rather it points towards the need for a transformation of the legal and political spheres and a radical transformation of the prevailing ideas of rights particularly within US legal and political culture. The insights of an Ethic of Care and responsibility can assist in the transformation of the Ethic of Justice, but cannot ultimately replace it. Such transformations have already begun to take place within the theory and practice of international human rights law. Much work remains to be done. The shortcomings and limits within international human rights law are not the fault of human rights per se, but rather of the politics and patriarchy that underpin international human rights law and practice. B. RADICAL FEMINISM OF CATHARINE MACKINNON

Catharine MacKinnon continues the critique of liberal theories of rights. Rather than focusing on difference, however, she focuses instead on dominance and subordination. For MacKinnon, gender is not only the way in which women are differentiated socially from men; it is also the way in which women are subordinated to men.51 MacKinnon constructs a grand theory of women’s oppression, identifying sexuality, specifically heterosexuality, as the principal site of women’s oppression. Sexuality, she says, is the linchpin of gender inequality. Women are sexual subordinates. Female sexuality is distorted and manipulated to meet the interests of a class/sex that does not share female interests. The organised expropriation of female sexuality for male use has material consequences for women in the forms of rape, pornography and sexual harassment. The question then is how to respond to this organised expropriation? What strategies should be adopted to correct the distortions of patriarchal ideology? Appeals to a universal moral theory are rejected. Claims to objectivity, MacKinnon claims, are part of the structure of male power. ‘Abstract rights’, she says, ‘will authorize the male experience of the world.’52 Instead, she suggests paying closer attention to the standpoint of the oppressed class-women. This standpoint is not just different; it is also, she argues, epistemologically advantageous. MacKinnon identifies women’s status as that of a victim. She then privileges that status by claiming it gives access to an understanding about oppression

51 See: C MacKinnon, ‘Feminism, Marxism, Method and the State: An Agenda for Theory’ (1982) 7(3) Signs: Journal of Women in Culture and Society 515; C MacKinnon, ‘Feminism, Marxism, Method, and the State: Toward a Feminist Jurisprudence’ (1983) 8(2) Signs: Journal of Women in Culture and Society 635; CA MacKinnon, Feminism Unmodified Discourses on Life and Law (Cambridge, MA, Harvard University Press, 1987); C MacKinnon, Toward a Feminist Theory of the State (Cambridge, MA, Harvard University Press, 1989). 52 C MacKinnon, 1983, ibid, p 658.

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that others cannot have. Pain and subordination provide the oppressed with a motivation for criticising accepted interpretations of reality and for developing new and less distorted ways of understanding the world. The experience of being a victim reveals truths about reality that non-victims cannot see. For MacKinnon, the strength of feminism ‘originates’ in the experience of ‘being dominated, not just in thinking about domination’.53 The standpoint of women is discovered through a collective process, a process of consciousness-raising. The process of gaining knowledge is a collective one and is guided by the special interests and values of the participants in the process. The aim of such knowledge is ultimately practical. This reliance on experiential methodology informs MacKinnon’s critique of human rights law and practice. While much of MacKinnon’s work targets the male discourse of rights, it is in her essay ‘Crimes of War, Crimes of Peace’ that MacKinnon specifically turns her attention to international human rights law.54 At the heart of MacKinnon’s criticisms is a concern with the justificatory basis underlying human rights claims. Human rights claims, she argues, rely for support on the workings of a universal legislating reason. For MacKinnon, feminist methodology requires abandoning this idea of reason. MacKinnon traces the origins of international human rights law to the experience of the Holocaust. That experience, she argues, left us with the enduring belief that survival depends on blending in. So many Polish Jews died, she says, because they only spoke Yiddish. ‘They could not “pass” as not Jews.’55 Recognition and survival depended on meeting the dominant standard. MacKinnon draws an analogy with the psychology of battered women, ‘keeping your head low keeps you alive’. This, she says, is the equality of the Enlightenment, the standard of equality that has been incorporated into international human rights law. It is an equality principle that was constructed under genocidal conditions. By adhering to the same understanding of equality, women, she argues, continue to live under genocidal conditions.56 MacKinnon does not dismiss the idea of rights entirely.57 However, she is skeptical of the human rights movement, turning instead to domestic, ‘home-grown’ civil rights movements. She argues that because civil rights movements rely on an experiential methodology, beginning from concrete 53 C Menkel-Meadow, ‘Feminist Legal Theory, Critical Legal Studies, and Legal Education’ [1988] Journal of Legal Education 38, 61. 54 C MacKinnon, ‘Crimes of War, Crimes of Peace’ in S Shute and S Hurley, (eds), On Human Rights (New York, NY, Basic Books, 1993) 84. 55 Ibid, p 104. 56 Ibid, p 105. 57 MacKinnon is perhaps best known for her advocacy of a civil-rights approach to pornography. See generally: CA MacKinnon, Only Words (Cambridge, MA, Harvard University Press, 1993); CA MacKinnon and A Dworkin, (eds), In Harm’s Way: The Pornography Civil Rights Hearings (Cambridge, MA, Harvard University Press, 1997); C MacKinnon, ‘Pornography, Civil Rights and Speech’ (1985) 20 Harv Civ Rts Civ Lib L Rev 1.

14 Discourse of Human Rights: An Enemy of Women’s Progress experiences of inequality, they can contribute to social change in a way that the human rights movement cannot. By providing direct civil remedies for harms suffered, civil rights distribute power from government to people as well as redistributing power among people,58 practicing a jurisprudence that, in MacKinnon’s view, is ‘social, contextual, relational and anti-hierarchical.’59 MacKinnon also argues that civil rights claims transcend the division between the public and the domestic sphere, beginning at home or close to it. In contrast, she says, ‘human rights seem to improve the further one gets from home’,60 being constantly obstructed by the privatising defence of culture. Yet conflicts between cultural rights and gender equality are at least as likely to arise within civil rights movements. MacKinnon herself argues that equality should not be located in the elimination of difference but rather in the ‘affirmative claims of cultural particularity’.61 Yet it is those very claims that have often hindered the realization of women’s human rights claims. Relying on the experiential methodology of consciousness-raising does not overcome this potential for conflict. It is not always clear whether MacKinnon is confining her criticisms to the received traditions of human rights law and practice, to the positive law of human rights and its mechanisms of enforcement, or whether her criticisms are directed against the idea of human rights per se. At times she refers to human rights, ‘as currently defined’,62 suggesting the possibility of redefinition. In more recent writings, she seems to recognise the possibility of a feminist transformation of human rights norms. ‘By including what violates women under civil and human rights law,’ she says, ‘the meaning of “citizen” and “human” begins to have a woman’s face.’63 To achieve this transformation, she argues that we need to adopt the methods of civil rights movements, beginning from the concrete realities of women’s lives. At times MacKinnon seems to presume that a unitary feminist standpoint will emerge from the process of consciousness-raising, from the concrete practices of civil rights movements. However, given that many women do not perceive themselves as being oppressed and not all those who do, agree on

58 In 1982, MacKinnon and Andrea Dworkin drafted an anti-pornography ordinance, defining pornography both as a violation of civil rights and as discrimination. The Ordinance sought to make a civil remedy available to women who had been ‘harmed’ by pornography. It was adopted by the State of Inndianopolis but met with opposition both from civil liberties groups and feminists and was ultimately found to in violation of the US Constitution’s First Amendment guarantee of ‘free speech’. See: American Booksellers Association, Inc v William H Hudnut, III, Mayor, City of Indianapolis 598 F Supp 1316 (SD Ind, 1984); 771 F 2d 323 (7th Cir, 1985); aff’d 106 SCt 1172 (1986). 59 C MacKinnon, 1993, above n 54, p 103. 60 Above n 54, p 104. 61 C MacKinnon, 1993, above n 54, p 104. 62 Ibid, p 103. 63 C MacKinnon, 2000, above n 2, p 692.

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its origins or its implications, the question of whose standpoint to credit remains unresolved.64 How can any one experiential account claim special authority? As Deborah Rhodes asks: ‘How can feminists wed to experiential analysis respond to women who reject feminism’s basic premises as contrary to their experience?’65 For MacKinnon, different modes of moral reasoning are the product of false consciousness.66 She argues that women have been silenced: ... When you are powerless, you don’t just speak differently. A lot, you don’t speak. Your speech is not just differently articulated, it is silenced. Eliminated, gone. You aren’t just deprived of a language with which to articulate your distinctiveness, although you are; you are deprived of a life out of which articulation might come. 67

Yet MacKinnon herself participates in this silencing. She is often brutal in her condemnation of women’s so-called complicity.68 By her condemnation, however, she devalues women’s voices. She writes off those who do not agree with her, dismissing the disagreement as a product of false consciousness.69 Patricia Cain asks, ‘Where is MacKinnon’s feminist method? To whom does she choose to listen?’70 MacKinnon is also accused of essentialism. She is criticised for falsely universalising women’s experiences. Just as Marxism collapsed gender and race into class, so MacKinnon collapses issues of race and class into gender.71 Her failure is a failure to apply feminist methods, a story of a broken promise. MacKinnon denies these accusations, noting that feminism has never had a ‘monocausal’ narrative.72 She continues, however, to essentialise women’s experiences arguing that women share a collective social history of ‘disempowerment, exploitation, and subordination’.73 While this view might be defended, perhaps a greater difficulty for MacKinnon is that her methods do not allow sufficient space for the articulation of different voices. The processes of social construction 64

D Rhode, ‘Feminist Critical Theories’ (1990) 42 Stanford Law Review 617, 624. Ibid, p 622. 66 See: D Cornell, Beyond Accommodation: Ethical Feminism, Deconstruction and the Law (London, Routledge, 1991) 133–35. 67 C MacKinnon, 1987, above n 51, p 39. 68 D Cornell, 1991, above n 66, p 136. 69 See DuBois, Dunlap, MacKinnon and Menkel-Meadow, ‘Feminist Discourse: Moral Values and the Law—A Conversation (1985) 34 Buffalo Law Review 11. 70 P Cain, ‘Feminist Jurisprudence: Grounding the Theories’ in K Bartlett and R Kennedy, (eds), Feminist Legal Theory: Readings in Law and Gender (Boulder, CO, Westview Press, 1991) 263. 71 C Smart, ‘Feminist Jurisprudence’ in P Fitzpatrick, (ed), Dangerous Supplements: Resistance and Renewal in Jurisprudence (London, Pluto Press, 1991) 142. See also A Harris, ‘Race and Essentialism in Feminist Legal Theory’ (1990) 42 Stanford Law Review 580, 590–601. 72 C MacKinnon, 2000, above n 2, p 696. 73 C MacKinnon, ‘Reflections on Sex Equality under the Law’ (1991) 100 Yale Law Journal 1281, 1294. See also: C MacKinnon, Sex Equality (New York, NY, Foundation Press, 2001). 65

16 Discourse of Human Rights: An Enemy of Women’s Progress are not as determinate as MacKinnon would have us believe. If it were, then feminism would not be possible. The possibility of reinterpreting our sexualised reality and of recognising the reality of gender inequality would also not be possible. As Cornell puts it, ‘Who are the “we” that “see” and why do we, how can we, see differently so as to be able to reinterpret the meaning of our “sexualised” reality?’74 Though MacKinnon’s grand theory does much to expose the false universalism of liberal discourses of rights, ultimately, she fails to convince us of the legitimacy of her claims. Some of her most trenchant critics are to be found amongst postmodern feminists. It is to their writings that we now turn. C. POSTMODERN FEMINISMS

Postmodernism can be understood as a movement that radically calls into question the fundamental presuppositions of Enlightenment thinking. Certain themes recur in postmodernist writings. A central theme is the claim is that Western culture is experiencing an interrelated series of deaths: (i) the death of metaphysics; (ii) the death of the subject; and (iii) the death of History.75 The death of metaphysics is associated with the end of foundationalism. Claims to ‘objectivity’ and ‘neutrality’ are revealed as representing only sectional interests, partial truths. Postmodern critics argue that the reluctance to admit the partiality of such perspectives arises from the desire to, ‘... master the world by enclosing it within an illusory but absolute system ... beyond history, particularity and change ...’76 The ‘death of the subject’ concerns the conception of the human self. In place of the abstract, autonomous self associated with liberal political theory, postmodern thinkers emphasise the radical situatedness and contextualization of the human self. The ‘death of History’ thesis expresses a disillusionment with the ideals of progress, an awareness of the atrocities that have been committed in the name of technological and economic progress and a rejection of the claims of any particular group to be acting in the name of progress. It is because of its championing of the standpoint of the ‘other(s)’ that postmodernism has been identified as a crucial ally by many contemporary feminist thinkers. The concern with difference, with the valuing of the ‘other’, finds expression in an aversion to universalist moral theory. The grand narratives of the Enlightenment, including liberal theories of rights, are contrasted with the ‘petits récits’ of women, children, fools and primitives. As Seyla Benhabib points out, if there is one commitment that unites

74

D Cornell, 1991, above n 66, p 130. J Flax, Thinking Fragments Psychoanalysis: Feminism, and Postmodernism in the Contemporary West (Berkeley, CA, University of California Press, 1990) 29. 76 Ibid, p 34. 75

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postmodernists from Foucault to Derrida to Lyotard, it is the critique of western rationality as seen from the perspective of the margins, ‘from the standpoint of what and whom it excludes, suppresses, delegitimizes, renders mad, imbecilic or childish.’77 Critical legal studies scholars have applied the insights of post-modern thinking to law and legal theory. Postmodern legal thought is portrayed as a moment of rapture—a moment that ‘opens space for the marginal, the different and the “other”.’78 CLS scholars have challenged the law’s claims to objectivity and neutrality, exposing the value-laden nature of legal reasoning. The discourse of rights has been a central target of the CLS movement. Rights consciousness is accused of blocking transformative, counter-hegemonic thought, of oversimplifying complex power relations. The discourse of rights is accused of being shot through with internal contradiction, with irreducible, irremediable, conflict. Fem-crits argue that articulating feminist arguments in terms of abstract rights and neutral rules reduces feminism to ‘a line-drawing debate’. Frances Olsen calls on feminists to stop trying to fit their goals into abstract rights arguments and instead to call for ‘what we really want.’ This critique of rights, however, raises a number of problems. As Patricia Williams has pointed out, rights discourse has been of central importance to the American black civil rights movement: ‘Rights feel so new in the mouths of most black people. It is still so deliciously empowering to say ... . It is the magic wand of visibility and invisibility, of inclusion and exclusion, of power and no power ...’.79 Martha Minow has also questioned the wisdom of denying rights discourse to historically disadvantaged groups: ‘I worry about those who have, telling those who do not, “You do not need it, you should not want it”.’80 Feminists have been concerned at the seemingly endless relativism and fragmentation of CLS and postmodern legal theory. Postmodern feminists have sought to avoid the dangers of such relativism and to maintain an ethical dimension to feminism. 1. Neo-pragmatism Neo-pragmatist feminists rely on a relational view of the human self and a feminist perspective that is contextual and claims to be non-essentialist in aspiration. This perspective is based on what Margaret Radin claims is a ‘new mediating way of thinking’—a way of thinking that rejects the P/or 77

S Benhabib, 1992, above n.23. C Douzinas and R Warrington, Postmodern Jurisprudence (London, Routledge, 1991) 15. 79 PJ Williams, ‘Alchemical Notes: Reconstructing Ideals from Deconstructed Rights’ (1987) 22 Harvard CR-CL Law Rev 401, 431. 80 M Minow, ‘Interpreting Rights: An Essay for Robert Cover’ (1987) 96 Yale Law Journal 1860, 1910. 78

18 Discourse of Human Rights: An Enemy of Women’s Progress not P approach associated with Enlightenment philosophy.81 Enlightenment philosophy is associated with a drive to establish communication between ‘local canons of rationality’—an attempt to make them answerable to a single standard.82 Margaret Radin and others argue that this drive is either misguided or sinister in its own right. Criticism centres on the Enlightenment demand that what exists should justify itself before a timeless ‘tribunal of reason’. Neo-pragmatists refuse to yield to this demand. Justification (or legitimation), they argue, is always local and context-relative. In Fraser and Nicholson’s words, feminism must ‘tailor its method and categories to the specific task at hand, using multiple categories when appropriate and forswearing the metaphysical comfort of a single feminist method or feminist epistemology’.83 For the neo-pragmatist, concepts of justice and rights are additional tools to be employed, or not, as the situation requires. Neo-pragmatism leaves many questions unanswered, however. What counts as a more or less useful idea or suggestion? How do we know if one particular tool will bring us closer to or further away from a just society if we cannot even begin to define what justice is? Within the confines of neopragmatism, we cannot settle the matter by positing non-contingent ends or goals. Feminist methods, Katharine Bartlett says, are means to feminist ends.84 But what are those ends? If knowledge of those ends is always contingent, unstable and subject to revision, then how do we know what to keep and what to revise? If we are to make pragmatic judgements as to whether something ‘works’, we need to know to what end we are working and to be able to assess that end in and of itself. Nancy Fraser argues that feminists share the general purpose of opposing male dominance.85 But not all feminists agree on what counts as dominance or what counts as subordination. The key, Fraser argues, is to avoid ‘metaphysical entanglements’.86 We might wish to avoid metaphysics. However, we cannot avoid entanglements that require us to offer a normative justification for the pursuit of feminist ends. Without such entanglements we cannot even begin to define dominance, subordination or inequality. We need to be able to defend feminist goals in and of themselves, not simply as one amongst a number of equally valid ends or goals.

81

M Radin, ‘The Pragmatist and the Feminist’ (1990) 63 California Law Review 1699. S Lovibond, ‘Feminism and Postmodernism’ (1989) 178 New Left Review 5, 6. 83 LJ Nicholson and N Fraser, (eds), Feminism/Postmodernism (New York, NY, Routledge, 1990) 35. 84 K Bartlett, ‘Feminist Legal Methods’ (1990) 103 Harvard Law Review 829. 85 N Fraser, ‘Pragmatism, Feminism, and the Linguistic Turn’ in S Benhabib, et al, Feminist Contentions: A Philosophical Exchange (New York, NY, Routledge, 1995) 157, 166–67. 86 Ibid, p 166. 82

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Neo-pragmatism has been heavily influenced by Richard Rorty’s antifoundationalist liberalism.87 The limits of this approach can be seen in Rorty’s underlying relativism. Claims based on the ‘greater good’ of feminism, Rorty argues, are like claims that ‘mammals are preferable to reptiles, or Aryans to Jews’. At another point, he argues that ‘the enslavement of one human tribe or race by another, or of the human females by the human males, is not an intrinsic evil.’88 The plasticity of human selves seems to be limitless. Feminism, however, cannot be limitless. Defining those limits requires more than intuitions or situated judgement. 2. Post-structuralist Feminism Post-structuralist feminism takes the emphasis on sexual and other differences much further. For post-structuralist feminists, there can be no ‘middle ground’. This argument is made most forcefully by Iris Marion Young.89 For Young, any attempt to reason through difference is a violent act, an act that fails to respect or to recognise the significance of difference. She argues that universalist moral theories shift difference into dichotomous normative oppositions—between the universal and the particular, justice and care, reason and sentiment. These dichotomies stand in a hierarchy and are also deeply gendered: ‘the first term designates the positive unity on the inside, the second less-valued term designates the left-over outside’.90 Those falling within the excluded domain return to disrupt and fragment the unity of the dominant discourse, the discourse of universal human rights or the unity of the feminist ‘we’.91 Young also attacks the fiction of a unified self, found both in liberal feminism and in feminist Ethics of Care. She argues that the relational or connected view of the self proposed by Gilligan, Minow and others, presupposes a state in which individuals will cease to be opaque. This ideal of ‘shared subjectivity’, Young argues, denies difference in the

87 See: R Rorty, ‘Human Rights, Rationality, and Sentimentality’ in S Shute and S Hurley, (eds), On Human Rights: The Oxford Amnesty Lectures (New York, NY, Basic Books, 1993) 112; R Rorty, Contingency, Irony and Solidarity (Cambridge, CUP, 1989); R Rorty, Philosophy and the Mirror of Nature (Oxford, Blackwell, 1980); R Rorty, Truth, Politics and ‘Post-modernism’ (Assen, Van Gorcum, 1997). 88 R Rorty, 1989, ibid, p 10. 89 See: IM Young, ‘The Ideal of Community and the Politics of Difference’ (1986) 12(1) Social Theory and Practice; IM Young, ‘Impartiality and the Civic Public: Some Implications of Feminist Critiques of Moral and Political Theory’ in S Benhabib and D Cornell, (eds), Feminism as Critique: On the Politics of Gender (Minneapolis, MN, University of Minnesota Press, 1986) 57; IM Young, Justice and the Politics of Difference (Princeton, NJ, Princeton University Press, 1990); IM Young, Inclusion and Democracy (Oxford, OUP, 2000). 90 IM Young, 1986, ibid, p 62. 91 J Butler, ‘Contingent Foundations: Feminism and the Question of Postmodernism’ in J Butler and JW Scott, (eds), Feminists Theorize the Political (London., Routledge, 1992) 3, 14.

20 Discourse of Human Rights: An Enemy of Women’s Progress sense of ‘the basic asymmetry of subjects.’92 It is, she argues, doomed to failure. Despite our best efforts, difference cannot be eliminated. Young proposes a de-centred view of the human self. The subject is always a ‘heterogeneous presence’,93 not just situated or contextualised but radically de-centred. It can no longer be seen as an origin or source of reason—only as a product of multiple, social and psychological forces.94 Young’s arguments are persuasive. She is concerned to redefine the public sphere, at local, regional and global levels. She speaks of the need for global governance institutions, of the need to promote heterogeneity in public and to remedy the disadvantages of socially excluded groups.95 But difficulties arise with these proposals. Young emphasises the direction of agency. Yet the possibility of agency itself seems to be put in question by her work. The de-centred subject, lacking in autonomy or in any kind of identity, is unlikely to be an effective agent of social transformation. The ‘fractured, opaque self’ celebrates heterogeneity, opacity and difference, but at the cost of belittling the importance of a coherent core of individual identity. As Seyla Benhabib points out, an emancipatory feminist politics is not even possible without positing the norms of autonomy, choice and self-determination.96 Contemplating, giving expression to, and working towards a ‘heterogeneous public’ requires that certain democratic procedures are in place—that a degree of autonomy and freedom is protected. Young speaks as though these procedures can be taken for granted. She presupposes a kind of pluralist, tolerant, super-liberalism, relying on the very norms of autonomy and the rationality of democratic procedures that, at the same time, she so blithely dismisses.

92

Ibid. IM Young, 1986, above n 89, p 11. 94 Three different sources seem to have contributed to the emergence of this ‘de-centred’ view of the self. First, from psychoanalysis has come the idea that the ‘ego’ is not in charge of the individual’s life but is in various, ultimately unaccountable ways, affected by the subconscious. In Freudian terms, the self is not ‘transparent’ to itself as it is not ‘master in its own house’. It is controlled by desires, needs and forces that shape both the content of its ideas as well as its capacity to organise and comprehend them. Secondly, from the influence of Saussurean linguistics has come the notion that, just as in language each element or sign only makes sense in relation to and differentiated from the other elements or signs in the overall system, so the self, ‘I’, does not make sense in isolation, but only in relation to and differentiated from such terms as ‘you’, ‘she’, ‘they’ etc. Thus, the self does not enjoy any real autonomy or discrete identity as such. Finally, there is the belief that autonomy belongs, if anywhere, to culture as such, or to the networks of cultural practices within which the self is embedded. However, whereas in structuralism the self was de-centred, meaning was at least preserved in a total system of which the self was one element; in post-structuralist thought neither the self nor the system in which the self is embedded can provide a secure foundation for any final meaning or truth about the human condition. 95 See: IM Young, ‘Self-determination and Global Democracy’ in IM Young, Inclusion and Democracy (Oxford, OUP, 2000) 236. 96 S Benhabib, 1992, above n 23, p 16. 93

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Instead of appealing to a universalist legislating reason or to communal values, Young emphasises the transformative potential of dialogic practices. She appeals to a communicative ethics that seeks neither the unity of a transcendent impartiality nor the opposition of reason to sentiment. She argues that the communicative ethics of Jürgen Habermas and Seyla Benhabib remain too committed to the ideals of impartiality and universality. An emancipatory politics, she says, can best ensure the inclusion of all persons and groups not by claiming a ‘unified universality’ but by explicitly promoting ‘heterogeneity in public.’97 Young argues that the virtues of city life can assist in promoting a heterogeneous public sphere. Ideally, she says, city virtues represent heterogeneity, social differentiation (without exclusion), variety, eroticism and publicity.98 Oppression and domination, she argues, should be the primary terms used in conceptualising injustice. Drawing on the discourse of emancipatory social movements, she argues that oppression has five distinct elements: ‘exploitation, marginalisation, powerlessness, cultural imperialism, and violence.’99 She is concerned to develop methods of social criticism in which people within particular contexts can discuss how to promote well-being, both with one another and with those from other social contexts.100 Implicit within Young’s call to end oppression and to promote well-being is a belief that rights have been violated and justice denied. She seems to invoke universal concerns. Yet, at the same time she attacks the exclusionary and totalising force of moral universalism. Promoting heterogeneity, at least some kinds, and seeking to remedy the effects of past discrimination, are concerns that are at the heart of much of human rights theory and practice. Young fails to propose an alternative, She has no answer to the question, ‘What concept of reason, which vision of autonomy allows us to retain these values and the institutions within which these values flourish?’101 Within her free-floating pluralism, we cannot distinguish between social exclusion and social differentiation, between inclusion and assimilation. Like other postmodern thinkers, Young presumes that a free-floating pluralism would not permit racism, homophobia, poverty or sexism. To make this claim, however, clearly requires us to refer to principles that can claim a universal validity.

97

IM Young, 1986, above n 89, p 59. IM Young, above n 89, p 13. 99 Ibid, p 9. 100 IM Young, ‘Sex and Social Justice: Book Review’ (2001) 111(4) Ethics 819, 820. 101 S Benhabib, 1992, above n 23. 98

22 Discourse of Human Rights: An Enemy of Women’s Progress 3. Deconstruction and Drucilla Cornell’s Ethical Feminism Drucilla Cornell’s ethical feminism also tries to avoid the paralysing relativism of postmodernism.102 Cornell combines the deconstructionist techniques of Jacques Derrida and a celebration of feminine sexual difference to create her own particular ethical feminism. Drawing on the writings of Luce Irigaray and Hélène Cixous,103 she imagines a different way of being human, a way of being in which the feminine is reinterpreted, sexual difference is affirmed and fundamental concepts such as equality, rights and justice, are redefined. She rejects the accusations of essentialism sometimes targeted at French feminist writers,104 arguing that the affirmation of the feminine is not the affirmation of some pregiven sexual identity. Sexual difference defies any rigid logic of definitions, any unified compact subjectivity.105 Quoting Derrida, she argues that feminism should not be another excuse for passing out ‘sexual identity cards’.106 This is the mistake made by feminist thinkers such as Robin West. West maps the feminine onto ‘femaleness’, onto an essentialist understanding of women’s different biology. For Cornell the feminine is a role, a performance that can be restyled, replayed, reinvented.107 Ultimately, however, it is not clear that Cornell avoids the kind of essentialist tendencies of which she is so critical. Her call to resymbolise ‘the feminine within sexual difference’ is a risky strategy. Even in this abstract, indeterminate form, appeals to the feminine entrench, ‘a conceptually and politically dubious gender binarism.’108 Once the ‘feminine’ acquires any determinate content, as it must, if it is to be in any way meaningful, the risk is even greater. It leads to the sort of homogenising essentialism that has so often denied differences of race, class, and sexual orientation between women. Other theoretical and political questions are raised by Cornell’s proposed strategies. Responding to the reality of gender inequality requires an appeal to a utopian female imaginary space, a constant

102 D Cornell, Beyond Accommodation: Ethical Feminism, Deconstruction and the Law (London, Routledge, 1991); D Cornell, ‘Feminism, Deconstruction and the Law’ (1995) 73 Radical Philosophy 23; D Cornell, ‘The Philosophy of the Limit: Systems Theory and Feminist Legal Reform’ in D Cornell, M Rosenfeld and DG Carlson, (eds), Deconstruction and the Possibility of Justice (London, Routledge, 1992) 68; D Cornell, The Philosophy of the Limit (London, Routledge, 1992). 103 See: L Irigaray, C Porter, (tr), The Sex Which is Not One (Ithaca, NY, Cornell University Press, 1985); B Wing, H Cixous and C Clement, (trs), The Newly Born Woman (Minneapolis, MN, University of Minnesota Press, 1986). 104 D Cornell, (1991), above n 102, p 130. 105 Ibid, p 16. 106 Ibid, p 216, n 23. 107 Ibid, p 19. 108 N Fraser, ‘Pragmatism, Feminism, and the Linguistic Turn’ in S Benhabib, et al, Feminist Contentions: A Philosophical Exchange (New York, NY, Routledge, 1995) 157, 166.

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imagining of an undefined and undefinable utopia.109 It is not clear, however, what is to follow from this process of ethical imagining. Given the differences that exist between women and between feminists, it is likely that conflicting utopian visions will emerge. We have already seen similar difficulties in MacKinnon’s appeal to the process of consciousness-raising. Cornell does not tell us how we can move beyond these conflicting utopian visions, being reluctant to yield to what she identifies as perfectionist arguments. She criticises Okin as prescribing a particular conception of the good in relation to justice within the family and, in doing so, violating the sanctuary of the imaginary domain.110 Okin’s is a perfectionist liberalism, she argues, one that encroaches on freedom and the possibilities of re-imagining the organisation of intimate relationships.111 Yet, Cornell herself is willing to impose limits, to prohibit violence and abuse within the family, for example.112 These prohibitions are justified as necessary to allow us to represent and re-imagine our sexuate beings and to protect the realm of freedom required to do so. A similar argument could be made, however, for reforms proposed in the name of substantive equality and distributive justice. Feminism has criticised liberal theories of the rights for the failure to recognise substantive inequalities that limit individual capacities to pursue their own conception of the good. Cornell, herself, argues passionately in favour of worker’s rights, just cause statutes and Spanish language rights.113 These arguments, however, sit uneasily with her reluctance to commit herself to a substantive conception of equality. In her essay, At the Heart of Freedom, Cornell discusses the ‘troubled legacies’ of international human rights law.114 She highlights the imperialism that has attended much of the debate on women’s human rights and accepts Charles Taylor’s argument that ‘Western individualism’ will be ethically undesirable for many of the world’s peoples.115 At the same time, she is optimistic that an overlapping consensus can emerge on women’s rights and the rights of gays and lesbians. Unless such a consensus includes women’s human rights, it is not, she says, deserving of its name. To overcome the ‘troubled legacies’ of human rights, she calls for a moral space to reinterpret and redefine the human rights agenda. On the one hand, she appears to

109 D

Cornell, 1992, above n 102, pp 87–88. p 30. 111 Ibid. See chapter 3, outlining the differences between her arguments for family reform and those proposed by Okin. 112 Ibid, p 26. 113 D Cornell, Just Cause: Freedom, Identity and Rights (New York, NY, Rowman and Littlefield, 2000) chs 6 and 8. 114 Above Cornell D, At the Heart of Freedom: Feminism , Sex and Equality (Princeton, Princeton University Press, 1998) pp 151–73. 115 Ibid, p 167, citing C Taylor, A World Consensus on Human Rights? (Dissent, 1996) pp 16–17. 110 Ibid,

24 Discourse of Human Rights: An Enemy of Women’s Progress defend a quintessentially liberal position, one that posits the overriding value of individual autonomy. On the other hand, she seems to recognise the shortcomings of classical liberal traditions and seeks to avoid the constraints of liberal Enlightenment thinking. Cornell argues that appeals to universal principles, understood as appeals to a common human essence, perpetuate gender hierarchies. She presumes that such universalist appeals define the human self with reference to the masculine subject and that aspects of human existence usually associated with the feminine are ignored, marginalised and rendered invisible by universalist moral theory.116 Certainly this has often been the case. However, it need not necessarily be so. The human self can be defined differently. Universalist moral theory does not have to rely on essentialist definitions of the human self. Cornell argues that equality is defined above all by the recognition of the call of the ‘Other’, the call for us to remember those aspects of human life that are marginalised by dominant legal conceptions.117 The pursuit of equality can be assisted by the celebration of feminine ‘jouissance’.118 ‘Jouissance’ can be understood as feminine sexual pleasure, but also, Cornell argues, as a desire for connection with the Other. It is this desire that can leads us to answer the call of the Other. It also leads us to imagine alternative sexual identities, identities that can undermine established gender hierarchies. Following Derrida, Cornell argues that this concern to answer the call of the other brings with it a kind of universality. She is careful, however, to distance her ethical concerns from what she perceives as the essentialising tendencies of most grand narratives. Universality, she says, should not be defined in terms of a common set of properties defining the human self or a set of procedures to be followed in responding to a call of the ‘Other’. This raises similar questions to those raised by feminist Ethics of Care. How should feminism define its responsibilities to the ‘Other’? Are there any limits to those responsibilities, any calls of the ‘Other’ that do not give rise to responsibilities? For Cornell, however, to define those limits risks trampling on the particular. It risks closure and silence. Failing to do so, however, does little to promote a flourishing of difference. Ultimately, Cornell’s ethical feminism leaves us with little more than hopeful feminine imaginings. If feminists are to engage in practical–critical activity, however, we must be able to defend feminism’s claims against alternative, perhaps more harmful utopian imaginings.

116 D

Cornell, The Philosophy of the Limit, above n 102, p 88. Balkin, ‘What is Postmodern Constitutionalism?’ (1992) 90 Michigan Law Review 1966, 1989. 118 Jouissance is a term used in contemporary philosophical and psychoanalytic discourse to mean feminine sexual pleasure or desire. It is also used to refer to the experience of perfect completion with the Other, the lack of which is the source of desire. Lacan, Feminine Sexuality, pp 137–48 and 116–17. 117 JM

Concluding Remarks

25

D. CONCLUDING REMARKS

Feminism has much to lose in abandoning its roots in a commitment to universalism, individual autonomy and human rights. The alternatives proposed do not provide the resources necessary to build a truly global feminism, global in the sense of addressing discrimination and inequality in all its complex variety and monotonous similarity. Ethic of Care feminism threatens to compromise the commitment to individual autonomy necessary to ensure the conditions required for critical reflexivity. In dismissing the individualism of rights discourse, it also denies the potential of a community of rights to support the values of solidarity and connection so important to Care theorists. Catharine MacKinnon’s radical feminism challenges the many hidden gendered hierarchies that continue to permeate legal systems and our inherited traditions of human rights law. However, she fails to provide us with the normative basis for a feminist transformation of human rights. Her return to the politics and practice of civil rights movements does not resolve the conflicting claims that arise when inherited traditions clash with the pursuit of gender equality. Postmodern feminisms, in their many forms, are committed to a free-floating pluralism that celebrates the flourishing of difference so valued by classical liberals. However, a commitment to the universal moral principles necessary to underpin a theory of rights is anathema to postmodernism. This leaves feminism without the resources necessary to challenge claims to difference that would deny the universal legitimacy of women’s human rights claims. The discourse of human rights has been much maligned in recent years. It is accused of promoting egoism, of ignoring difference and of unduly restricting the scope of the moral domain. However, human rights discourse, properly understood, need not fall prey to such dangers. The concerns of difference feminism must be taken seriously, however, if the theory and practice of human rights is to be transformed. Feminist theory has provided us with the possibility of developing a richer and more complex understanding of human rights. The problem with existing ideas of human rights is not that they are inherently limiting, but that they have operated to date within ‘a limited institutional imaginative universe.’119 The discourse of human rights is an open and dynamic one. The challenge for feminism is to transform that discourse rather than to abandon it. The next two chapters examine the work of two contemporary liberal theorists, Alan Gewirth and John Rawls. Both Rawls and Gewirth have addressed concerns raised by difference feminists, indirectly in the case of Alan Gewirth and only after much prompting in the case of John Rawls. They each come to the idea of human rights from different philosophical

119 DL

Rhode, above n 64, p 638.

26 Discourse of Human Rights: An Enemy of Women’s Progress backgrounds. Gewirth remains firmly wedded to the tradition of Kantian liberalism. Rawls has moved to a more modest, political conception of liberalism. Each addresses questions of international justice and each also addresses the tensions that have arisen between liberalism and communitarianism. Both Rawls and Gewirth combine a commitment to communal values with a concern to remedy distributive injustices. The significance of this work for the international human rights movement and for international feminism is clear. It heralds a return to the now ‘old-fashioned’ ideals of economic and social justice, equality and individual autonomy. These ideals are at the heart of the human rights movement and are also at the heart of feminism—however defined. Significantly for feminism, both Gewirth and Rawls also question the metaphysical and historical legacies of Enlightenment philosophy. This questioning and scrutiny points to possibilities for a feminist rethinking of the universalist tradition and of human rights theory and practice.

2 Alan Gewirth’s Community of Rights: Feminism, Liberalism and the Value of Community

A

G EWIRTH IS one of the leading contemporary thinkers on human rights. While his work is deeply rooted in Kantian traditions, he has attempted to respond to communitarian critics of liberal discourses of human rights. His work highlights both the potential for a normative reconstruction of human rights law and the limits of a reconstruction that ultimately remains within the confines of Enlightenment traditions. In his essay, The Community of Rights,1 Gewirth sets out to dismiss, once and for all, the claim that human rights principles are opposed to or somehow deny the significance of communal values. He does not directly address feminist critiques of rights and, apart from cursory references to feminist Ethic of Care theorists, he refers to few feminist thinkers.2 However, issues that have been central to feminist theory and practice, economic and social justice, the concept of the self, the definition of the moral domain, are very much at the heart of Gewirth’s philosophy of human rights. The question asked in this chapter is whether Gewirth can assist in bringing about a feminist transformation of human rights. Should his Community of Rights be read as a feminist text? Gewirth’s expanded view of the moral domain and his concern with moral motivation and character find echoes in the writings of Martha Minow, Seyla Benhabib, Carol Gilligan and others.3 His ‘reasonable’ conception of LAN

1

A Gewirth, The Community of Rights (Chicago, IL, University of Chicago Press, 1996). References to feminist writings can be found at: ibid, pp 32–33, p 36, above n 89, p 117, p 205. 3 See: S Benhabib, ‘The Generalised and the Concrete Other: The Kohlberg-Gilligan Controversy and Feminist Theory’ in S Benhabib and D Cornell, (eds), Feminism as Critique: On the Politics of Gender (Minneapolis, MN, University of Minnesota Press, 1986) 77; M Minnow and ML Shanley, ‘Relational Rights and Responsibilities: Revisioning the Family in Liberal Political Theory and Law’ (1996) 11(1) Hypatia 4; C Gilligan, In a Different Voice Psychological Theory and Women’s Development (Cambridge, MA, Harvard University Press, 1982); M Fineman, The Autonomy Myth: A Theory of Dependency (New York, NY, New Press, 2003); M Fineman, ‘Contract and Care’ (2001) 76 Chicago-Kent L Rev 1403. 2

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the human self4 recognises at least some of the insights of relational feminism and the relational self, proposed, in particular, by feminist Ethic of Care theorists. Feminism has often criticised the neglect of such concerns within liberal political theory. Gewirth begins to fill this gap and to apply his philosophy of rights within a moral domain that includes interpersonal relations within civil society and the domestic sphere. His concern with economic and social rights also has much in common with feminist writings on the ‘other half’ of the international bill of human rights.5 His Community of Rights provides us with a detailed economic biography, designed to transform human rights principles into concrete proposals for distributive justice. Yet, although Gewirth touches on the concerns raised by feminists, he fails to recognise the full import of a feminist re-thinking of liberal political theory and of human rights principles. The difficulty lies in his justificatory strategy—in the methods that he employs in reasoning about questions of human rights. As Catharine MacKinnon has pointed out, method ‘organizes the apprehension of truth; it determines what counts as evidence and defines what is taken as verification.’6 It also shapes one’s view of the possibilities for change.7 Gewirth seems anxious to avoid the pitfalls of abstract philosophizing and the essentialising tendencies of much liberal political theory. He continues, however, to rely on the very mechanisms of exclusion that have led feminists to distance themselves from liberal political theory. The problem lies in his appeal to a universalistic legislating reason, his reliance on what Seyla Benhabib has described as the workings of a ‘lonely geometrician.’8 Though he is concerned with the right to democratic participation, he fails to democratise the process of justification, to build participatory methods into the justification of human rights claims. This leads to difficulties both in his understanding of the human self and his understanding of difference. A. THE PRINCIPLE OF GENERIC CONSISTENCY AND THE NORMATIVE STRUCTURE OF ACTION

Reviewing the legacies of Enlightenment thinking about rights, Gewirth identifies three key justificatory strategies that have been pursued by liberal 4

A Gewirth, ‘Human Rights and Conceptions of the Self’ (1988) 18 Philosophia (Israel) 129. B Stark, ‘The Other Half of the International Bill of Rights as a Postmodern Feminist Text’ in DG Dallmeyer, (ed), Reconceiving Reality: Women and International Law (Washington DC, American Society of International Law, 1993) 19. 6 C MacKinnon, ‘Feminism, Marxism, Method and the State: An Agenda for Theory’ (1982) 7(3) Signs: Journal of Women in Culture and Society 515, 527. 7 K Bartlett, ‘Feminist Legal Methods’ (1990) 103 Harvard L Rev 829, 830; C MacKinnon (1982), above n 6, p 527. 8 See: S Benhabib, Situating the Self Gender, Community and Postmodernism in Contemporary Ethics (Cambridge, Polity Press, 1992). 5

Generic Consistency and Normative Structure of Action

29

thinkers to date. These involve appeals to (a) the ‘transparently false assumption’ that all human beings are ‘equal in the faculties of body and mind’; (b) the transcendental, non-empirical claims of philosophers such as Locke and Kant, or; (c) the contrarational devices of the original position and the veil of ignorance.9 For Gewirth, none of these strategies provides an adequate answer to the empirical and moral criticisms facing human rights advocates. He proposes an alternative. He argues that the validity of a human rights claim turns on whether or not it can be supported by a supreme moral principle—the Principle of Generic Consistency (PGC).10 Addressed to every actual or prospective agent, the PGC commands us to: ‘Act in accord with the generic rights of your recipients as well as of yourself.’11 Gewirth rejects the positivist approach to the identification of rights. ‘To know or ascertain whether there are human rights requires’, he says, ‘not the scrutiny of legal codes or the empirical observation of social conditions, but rather the ability, in principle, to construct . . . a moral argument.’12 He arrives at his supreme moral principle by applying reason to the concept of action.13 He uses the concept of reason in a strict sense to refer only to the canons of deductive and inductive logic, thereby claiming to avoid arbitrariness and to attain ‘objectivity’.14 He relies on the concept of action because, he says, the necessary content of all morality is to be found in the ‘normative structure of action’. All moral precepts, regardless of their greatly varying contents, are concerned with how people ought to act towards one another. The normative structure of action is to be found in its two interrelated generic features, voluntariness or freedom, where the agent controls her behavior by her unforced choice and purposiveness or intentionality, where the agent aims to attain some end or goal which constitutes her reason for acting.15 The necessary conditions of all action are closely related to its generic features. Gewirth defines these necessary conditions as ‘freedom’ and 9

A Gewirth, ‘Human Rights and Conceptions of the Self’ (1988) 18 Philosophia (Israel) 129. Gewirth sets out the normative basis for his theory of human rights in: A Gewirth, Reason and Morality (Chicago, IL, University of Chicago Press, 1978); A Gewirth, Human Rights Essays on Justification and Applications (Chicago, IL, University of Chicago Press, 1982). 11 A Gewirth (1982), ibid, p 135. 12 A Gewirth (1978), above n 10, p 135. 13 Gewirth proceeds by what he calls a ‘dialectically necessary method’: 10

The method is dialectical in that it begins from statements presented as being made or accepted by an agent; it proceeds from within his first-person conative standpoint. The method is dialectically necessary in that the statements logically must be made and accepted by every agent because they derive from the generic features of purposive action, including the conative standpoint common to all agents. (A Gewirth (1982), above n 1, pp 20–21). This method is contrasted with a dialectically contingent method, ‘where the statements are presented as being made by and relative to an agent or other interlocutor, but there is no logical necessity that he make or accept the statements. ibid, p 22. 14 A Gewirth (1978), above n 10, p 22. 15 Ibid, p 134.

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Alan Gewirth’s Community of Rights

‘well-being’—understood as ‘the various substantive conditions and abilities ... that are required if a person is to act either at all or with general chances of success’.16 Gewirth argues that these necessary conditions are also necessary goods for all human agents, and that all agents must, therefore, claim rights to these goods. On pain of self-contradiction, he argues, all agents must also accept that other agents are entitled to claim such rights. Drawing on the reciprocity inherent in the PGC, Gewirth seeks to dispel the belief that rights discourse, and with it, the commitment to individual autonomy, necessarily leads to a kind of asocial individualism. Although he is concerned primarily with communitarian critiques, he also address feminist critiques of rights, in particular, those put forward by Ethic of Care theorists. For Gewirth, human rights entail ‘a communitarian conception of human relations, relations of mutual assistance, social solidarity, and important kinds of equality.’17 Through their mutuality, human rights claims entail community and community, in order to be morally justified, requires human rights.18 Gewirth is not prepared, however, to accept a strong reading of the good of community. To do so would deny the critical reflexivity needed to question and challenge inherited traditions. For Gewirth, prioritising the value of individual autonomy, does not exclude the recognition of communal values or the need for an ethics of caring and co-operation. In fact, he says, the ideal of individual autonomy incorporates the ‘interconnectedness and concern for others emphasized in communitarian and feminist doctrines.’19 In a direct challenge to the often criticised opposition between rights and communal values, he argues that the care and compassion underlying feminist Ethics of Care require a concern for the rights of the persons cared for.20 Reciprocity and the mutual sharing of the benefits of rights and the burdens of duties is at the heart of human rights norms. Each person is required to act with due regard for others’ interests as well as their own.21 Within Gewirth’s Community of Rights, this requirement of reciprocity is applied also at governmental level. Human rights create both negative and positive duties. As positive duties they warrant serious and active governmental concern for the freedom and well-being of all persons, leading to a supportive state based on a mutuality of rights and responsibilities.22 16

Ibid, p 239. A Gewirth (1996), above n 1, p 6. Ibid, pp 86–87. 19 Ibid, p 117. 20 Ibid, p 89, n 18, quoting R Wuthnow, Acts of Compassion (Princeton, NJ, Princeton University Press, 1991) 251: ‘But the testimony about compassion that we have examined thus far belies this distinction. It suggests that compassion in our society is also rooted in a respect for individual rights. . . that one’s compassion implies a strong sense of the rights and needs of others.’ 21 Ibid, p 6. 22 Ibid, pp 4–5. 17 18

Generic Consistency and Normative Structure of Action

31

In Gewirth’s attention to communal values, we also see an attempt to break down the binary division between reason and sentiment that persists in theories of rights. For Gewirth, the institutional arrangements required by the PGC represent, ‘an institutionalization of love as a deep concern for the freedom and well-being of all the members of the society.’23 The reasonableness required by the PGC takes a ‘strongly affective form’.24 Because the community protects its individual members’ rights, a loyalty and devotion to the community develops. This devotion is based on an awareness of the justice and rightness of the communal protection of rights.25 Gewirth refuses to accept the claim that rights undermine communal values, pointing out that individuals are placed in a combative relation only where human rights are threatened or violated. The removal of adversarial relationships may well depend, he argues, on the implementation rather than the rejection of human rights principles. When mutual rights are effectively recognised, the adversarial stance can and often does give way to an atmosphere of ‘mutual respect and civility’.26 The emphasis on communal values can also be seen in Gewirth’s ‘reasonable’ conception of the self.27 The ‘reasonable self’ is aware of her own agency needs and entitlements but is also aware of and gives due consideration to the agency needs and entitlements of others—as required by the reciprocal universality of human rights.This is a conception of the self that allows for sentiment and feeling in thinking about questions of justice.28 Gewirth tries in other ways to break down the opposition between reason and sentiment. Again, recognising feminist concerns, he argues that the community of rights is not a community of generalised others. Gewirth argues that the PGC provides for and often requires differential treatment of various groups, including family relations, friends and local communities. Importantly, however, the PGC distinguishes between justified and unjustified forms of ethical particularism. Included within unjustified forms of particularism are, ‘negative policies concerning the ... admission of immigrants who flee violations of human rights in their own countries’,29 or forms of national chauvinism that lead to a neglect of questions

23

Ibid, p 83. Ibid, p 93. See also: A Gewirth, ‘Human Rights and Conceptions of the Self’ (1988) 18 Philosophia (Israel) 129. 25 Ibid, p 83 26 A Gewirth (1988), above n 2, p 144. Gewirth’s arguments echo those of Bruce Ackerman. See: B Ackerman, ‘Political Liberalisms’ (1994) XCI(7) Journal of Philosophy 364. Ackerman dismisses the debate between liberalism and communitarianism as a tired debate based on a false dichotomy. 27 A Gewirth (1988), above n 2. 28 See: SM Okin, ‘Reason and Feeling in Thinking about Justice’ in C Sunstein, (ed), Feminism and Political Theory (Chicago, IL, Chicago University Press, 1990) 15. 29 A Gewirth, ‘Ethical Universalism and Particularism’ (1988) LXXXV(6) Journal of Philosophy 283, 298. 24

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Alan Gewirth’s Community of Rights

of international justice.30 Thus, his ethical particularism avoids the kinds of dangers that arise for anti-foundational liberals such as Richard Rorty, who argues that our sense of solidarity is greatest when those with whom we express solidarity are thought of as one of us, where ‘us’ means ‘something smaller and more local than the human race.’31 Revealing the exclusionary potential of a human rights without foundations, he argues that the force of any appeal to solidarity is, ‘typically, contrastive, in the sense that it contrasts with a “they” which is also made up of human beings— the wrong sort of human beings.’32 Gewirth’s attention to communal values is clearly of interest to feminism. He seems concerned to avoid the abstractions of moral philosophy and to recognise the ties of particular, concrete relations, within the family and the domestic sphere. He acknowledges the importance of nurturing moral character and bringing moral sentiment to bear in reasoning about questions of justice. However, he fails to acknowledge the significance of community and of context, both in understanding the human self and in the process of moral reasoning. The reasonable self underlying his PGC is stripped of all but the generic features of agency—freedom and well-being. Gewirth denies that he is ignoring the particularising properties of actual human selves.33 However, Gewirth’s thesis requires that the justificatory basis of human rights takes account only of those features of human selves that ‘no agent can consistently reject’– the generic features of agency.34 This restriction, he argues, is not an arbitrary one as all moral precepts, regardless of their divergent contexts, are necessarily connected with action.35 Even this abstraction, however, may be too much. B. THE ‘LONELY GEOMETRICIAN’ AND A LEGISLATING REASON

Gewirth is critical of the Rawlsian original position, precisely because it requires an abstraction from context. Yet, he himself repeats this error. 30 In her review of Gewirth’s Community of Rights, Jacqueline Bhabha criticises Gewirth for failing to address the rights of non-citizens to inclusion. J Bhabha, ‘The Right to Community? Review of A Gewirth “The Community of Rights” (Chicago, IL, Chicago University Press, 1996)’ (1997) 64 University of Chicago L Rev 1117. He fails, she says, to clarify whether membership in his community of rights is dependent on citizenship. However in his earlier discussions of ethical particularism, Gewirth specifically addresses himself to the question of national chauvinism. He speaks of the right to freedom and well-being of all persons within a state, without distinction between citizens and non-citizens. He also addresses himself to the problems of global injustice, extending his theory of rights to problems of distributive injustice in international relations. See: A Gewirth, ‘Starvation and Human Rights’ in ibid (1984), above n 1, p 197. 31 R Rorty, Contingency, Irony and Solidarity (Cambridge, CUP, 1989) 190–91. 32 Ibid, p 190. 33 A Gewirth (1988), above n 9, p 141. 34 Ibid. 35 Ibid.

The ‘Lonely Geometrician’ and a Legislating Reason

33

Gewirth relies on a distinction between the point of justification and the point of application of human rights claims. Though a distinction of sorts may be defensible, Gewirth takes this distinction too far, falling back into the trap of abstract metaphysical thinking about rights. Gewirth’s argument relies upon a metaphysics that defines the self simply by reference to its capacity for agency. But if the self is stripped of its concrete, affective and emotional aspects, then what we are left with is an empty mask. As Seyla Benhabib points out, ‘We could not know if such a being was a human self, an angel or the Holy Spirit.’36 Its essential characteristics are given independently of any particular social context and are not fundamentally altered by that context. The dangers inherent in ignoring the differentiated moral subject quickly become apparent. Gewirth slips rapidly into relying on essentialist notions of the human self. Although he accepts that all human beings are bearers of rights, he introduces distinctions between normal agents and those who lack the ability or right to be purposive prospective agents. Included within this category are people with mental and physical disabilities and criminals—this last being a category that is strangely essentialised throughout Gewirth’s writings.37 More worrying again is Gewirth’s conflation of difference with danger. The less ability human beings have for productive agency, he argues, the less they are able to fulfil their purposes without endangering themselves and others. Their generic rights must, therefore, be reduced. As Martha Minow has pointed out, linking difference with danger in this way reinforces assigned categories of difference that are based on social prejudice and misunderstanding.38 For feminists, such strategies of exclusion are nothing new. Differences, gender-based or otherwise, have long been used to exclude women from the mainstream of moral and political philosophy. Ultimately, although Gewirth emphasises the importance of democratic participation, his thinking about human rights returns us to the isolation of the ‘lonely geometrician’, concerned only with the moral law within and the starry heavens above. Gewirth’s PGC is based on a rationalisation of the so-called Golden Rule: ‘Do unto others as you would have them do unto you.’ In a famous quip, the Irish writer George Bernard Shaw, proposed an alternative version of the Rule: ‘Do not do unto others as you would have them do unto you. Their tastes may not be the same.’39 Gewirth acknowledges the sentiment underlying this suggestion. However, he misses Shaw’s key insight, the need

36

S Benhabib (1986), above n 3, p 89. See J Bhabha, above n 30. 38 M Minow, Making all the Difference Inclusion, Exclusion and American Law (Ithaca, NY, Cornell University Press, 1990) 9. 39 ‘Maxims for Revolutionsists’ in Collected Works of Bernard Shaw, vol X (New York, NY, 1930) 217, quoted in A Gewirth (1982), above n 1, p 128. 37

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Alan Gewirth’s Community of Rights

for intersubjectivity, for reciprocity and for consultation with the ‘other’ when engaging in moral reasoning. For Gewirth, normative validity is determined by the subjective workings of an individual agent. The agent must bring forward sound reasons in support of any right-claim. Within Gewirth’s scheme of things, however, this process of reason-giving is selfreferential.40 The agent appeals to canons of deductive and inductive logic and applies these rules of logic to her own prudential stand-point. This strategy ignores the requirement of public reason or the need for an intersubjective ground of justification. As Jürgen Habermas has pointed out, such intersubjectivity is implicit within any attempt to defend a right— claim. There is an expectation of accountability both on the part of the hearer and the speaker.41 Gewirth’s appeal to the generic features of agency is plausible only because of its implicit reliance on the presumed consensus of all prospective agents. Yet, this reliance is not acknowledged as an essential component of justifying a human rights claim. The impartial moral reason underlying Gewirth’s principle of human rights ultimately eliminates difference in the form of the differentiated moral subject. To determine the action required by the PGC, the individual agent need not consult with any other. To resolve moral conflicts, she need only consider degrees of necessity for action—again without consulting any other. In adopting this justificatory strategy, Gewirth repeats the error of many liberal political theorists, defining the self and morality in terms of individual autonomy and social responsibility, or as Carol Gilligan puts it, in terms of ‘an internalized conscience enacted by will and guided by duty or obligation’.42 Gewirth’s PGC presupposes a notion of reciprocity. The requirement of reciprocity is introduced at the point of universalising the claim to rights of freedom and well-being. However, the ability to put oneself in another’s position, when construed in these terms, implies not only a capacity for abstraction and generalization but also a conception of moral knowledge that in the end always refers back to the self. As Gilligan puts it, ‘despite the transit to the place of the other, the self oddly seems to stay constant.’43 Gewirth views participation in the political process as an important component of the dynamic state. Human rights, he says, includes one’s right to be a member of political community.44 Yet he refuses to acknowledge

40 SK White, ‘On the Normative Structure of Action: Gewirth and Habermas’ (1982) 44 Review of Politics 282, 294. 41 J Habermas, ‘Vorbereitende Bemerkungen’ in J Habermas, Theorie der Gesellschaft oder Sozialtechnologie (Frankfurt, Suhrkamp, 1971) 119. 42 C Gilligan, ‘Remapping the Moral Domain: New Images of the Self in Relationship’ in TC Heller, M Sosna and DE Wellbery, (eds), Reconstructing Individualism: Autonomy, Individuality, and the Self in Western Thought (Stanford, CA, Stanford University Press, 1986) 237, 240. 43 Ibid. 44 A Gewirth (1996), above n 1, p 69.

The PGC and Conflicting Cultural Claims

35

the importance of dialogue and intersubjective reasoning to the process of justifying human rights claims. This refusal seems to be based, at least in part, on the concern to avoid any kind of moral conventionalism. He criticises communitarians for making normative validity dependent upon what a given community happens to recognise as binding rules or principles.45 To avoid this risk, he turns to the subjective viewpoint of the prudential agent, losing the opportunity to democratise the process of moral reasoning. Gewirth’s fear of moral conventionalism is justified. However, the move that he makes to alleviate this fear is not. Intersubjective grounds of justification do not necessarily fall prey to the dangers of moral conventionalism. Safeguards are required to avoid the jump from ‘is’ to ‘ought’. Once such safeguards are in place, however, this danger can be avoided.46 C. THE PGC AND CONFLICTING CULTURAL CLAIMS

This abstraction from context at the point of justification limits the usefulness of Gewirth’s principle of human rights when faced with cultural and other differences. Gewirth seems to presume the possibility of achieving a consensus around cultural norms and practices. He argues that the concept of action underlying his PGC is a morally neutral one. It fits all moralities rather than reflecting or deriving from any one moral position. This neutrality underpins his claim to the universality validity of human rights. He rejects any ethnocentric or historical objections to human rights discourse, arguing that the roots of human rights philosophies can be found in ancient and medieval sources as well as in non-western cultures.47 Rejecting the arguments of cultural relativists, he points out that the universal validity or relevance of human rights principles does not depend on its acceptance in particular eras or particular climes A political system that is based on an unjust distribution of resources or a denial of the principle of equal concern and respect cannot be excused on the ground that its traditions render impossible any other ways of treating disadvantaged groups.48 Similarly, cultural traditions that discriminate on grounds of race, gender or religion cannot be permitted to restrict the universal application of human rights.49 This is where feminists and communitarians differ. In emphasising the constitutive character of social roles, some communitarians come close to a kind of moral conventionalism that does not distinguish between the self and its roles, or, even to a traditionalism that accepts social roles uncritically. For

45 46 47 48 49

A Gewirth (1978), above n 1, p 74. SK White, above n 40 p 295. A Gewirth (1978), above n 10 pp 98–102 and ibid (1996), above n 1, p 68. A Gewirth (1996), ibid, p 143. Ibid, p 68.

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Alan Gewirth’s Community of Rights

Gewirth, the concept of human rights is a normative one. It provides a moral model for how persons and groups ought to be treated even if existing systems of interpersonal and political relations depart from it. He is committed to the overriding priority of individual autonomy—a priority, he argues, that is essential if the inegalitarian and oppressive potentialities of various traditional communities are to be avoided.50 The right to challenge and question inherited traditions is, of course, of particular importance to feminism. Gewirth’s emphasis on the ultimate value of individual autonomy allows for the re-negotiation of gendered identities. The difficulty for feminists, however, lies in Gewirth’s failure to recognise the challenges that arise in implementing universal human rights norms, within a multicultural state or within a diverse international community. Apart from a brief reference to accusations of ethnocentrism, there is little discussion of cultural difference in his Community of Rights or in his earlier work. This is a surprising omission from a work that sets out to answer the concerns of communitarianism. It is even more surprising when one considers the prevalence of identity politics in the US at the time when Community of Rights was published (1996). A possible solution to the moral conflicts thrown up by cultural differences can be arrived at by applying Gewirth’s PGC to conflicting rights claims. The solution, however, is one that bears all the hallmarks of classical liberal thinking, and few of the hallmarks of a sensitivity to difference. In his discussion of moral conflicts, Gewirth identifies the central requirement of the PGC as being the equality of generic rights. Failure to respect this requirement is a denial, he says, of the ‘argument from the sufficency of agency’ (ASA). The ASA states that every must hold or accept that she has rights to freedom and well-being. To introduce a more restrictive reason for the holding of generic rights (such as one’s sex), would be a denial of the ASA.51 The promulgation of discriminatory laws by a state is clearly prohibited by this argument. What is less clear is how the state should respond to the rules and practices of religious groups, some of which might discriminate on grounds of sex.52 For Gewirth, such groups would fall within the category of ‘voluntary associations’. This categorisation, in itself, might lead to some criticism.53 For many, religion cannot be understood as an optional pursuit. It is a defining component of one’s identity. Gewirth argues that voluntary associations are subject to the requirements of the PGC. However, it applies only indirectly to such

50

Ibid, pp 145–46. A Gewirth (1982), above n 10, p 52. 52 See below chs 7–10, discussing this problem in the contexts of Ireland, India and Pakistan. 53 See, for example, M Malik, ‘Communal Goods as Human Rights’ in C Gearty and A Tomkins, (eds), Understanding Human Rights (London, Mansell, 1996) 138. 51

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associations.54 A voluntary association must satisfy what Gewirth refers to as the ‘optional–procedural’ method of justification, where the association’s legitimacy is dependent on the consent of its members.55 The state may only intervene to ensure that the requirement of voluntariness is being met. Gewirth admits that this test may be difficult to satisfy, particularly where consent is given against a background of historical and institutional discrimination. Beyond this, however, he displays little awareness of the difficulties that would arise in subjecting voluntary associations to the requirements of the PGC. Equally, he fails to acknowledge the obstacles to implementing human rights principles, based on the PGC, across diverse cultures, religions and traditions. A cursory glance at the reservations entered to human rights treaties, such as CEDAW, should be enough to convince Gewirth that he needs to consider more carefully the strategies required for implementing human rights principles.56 This omission on Gewirth’s part is largely a result of his method—his failure to recognise the need for dialogue and for an intersubjective concept of reason. It is easy to resolve moral conflicts in the splendid isolation of deductive and inductive logic. Less so, when faced with the concrete moral dilemmas that arise in ordinary people’s everyday lives. This failure to recognise the significance of democratic participation has consequences for the practical applications of his human rights philosophy in other areas. These consequences become clear in his discussion of the problems of the welfare-state. Gewirth acknowledges the difficulties of welfarism, the loss of autonomy and the perception of dependence associated with welfare recipience.57 He dismisses the charge that welfare recipience is asymmetrical or unilateral and points to the contribution made by those in receipt of welfare. He points, for example, to the work carried out by mothers in receipt of welfare payments. The work of the mother, he argues, 54 According to Gewirth, the PGC has two different kinds of applications, direct and indirect. In its direct application it is applied to the interpersonal actions of individual human agents. In its indirect applications, it is applied to the various social rules that govern the activities of large numbers of people and institutions. The indirect institutional applications are of two different kinds, procedural and instrumental: The procedural applications derive from the PGC’s freedom component: they provide that social rules and institutions are morally right insofar as the persons subject to them have freely consented to accept them or have certain consensual procedures freely available to them. The instrumental applications derive from the PGC’s well-being component: they provide that social rules and institutions are morally right insofar as they operate to protect and support the well-being of all persons. A Gewirth (1982), above n 10, p 61. 55 See: A Gewirth (1978), above n 10, pp 199–205. 56 See the discussion of reservations to CEDAW below ch 6. 57 For a feminist critique of welfarist politics, see: M Fineman, ‘The Inevitability of Dependency and the Politics of Subsidy (Symposium on Welfare Reform)’ (1998) 9 Stanford Law and Policy Review 89; M Fineman, ‘The Nature of Dependencies and Welfare Reform (Symposium on Ethics, Public Policy, and the Future of the Family)’ (1996) 36 Santa Clara University L Rev 287.

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is deserving of the same recognition accorded to that of a soldier. Gewirth is insistent that welfare policies are morally justified, that human beings have a positive right to assistance when they cannot attain basic well-being by their own efforts.58 He sees the welfare state as a safety net, assisting in the transition to full productive agency. His economic biography is designed to change the economic and social conditions that give rise to the need for welfare. But Gewirth does not quite get to the root of the problem. The problem with welfarism is linked with the perception of dependency. Welfarism is in need of a much more radical overhaul than Gewirth proposes if rights to freedom are well-being are to be realised. Many feminist commentators have rejected the ‘welfare pardigm’, pointing out that only marginalised groups themselves can clarify the ‘relevant aspects’ that define equality and inequality for any given matter.59 Welfare state paternalism has often assumed a literal meaning. Overgeneralised classifications are used to label disadvantaged groups. Programs designed to promote gender equality often benefit already privileged women at the cost of other women because of their failure to recognise overlapping and multiple forms of discrimination.60 The problems inherent in such generalisations are evident in Gewirth’s comments on people with disabilities and criminals—in his essentialising of difference. His proposals for reform of the welfare state suggest a program of working for rather than with welfare recipients, failing to acknowledge the need for public discussion and for participation of affected parties in the decisionmaking processes that impact upon them. D. CONCLUDING REMARKS

Gewirth seems to presume a consensus around the priority of freedom and well-being. We might agree with the priority he accords to individual autonomy. We may recognise the need to detach ourselves from the ‘ties that bind’. At the same time, however, we need to recognise the complex moral conflicts that arise in negotiating cultural and other differences. We can only do this, however, by avoiding the abstractions of ‘principled rigorism’ and instead, ‘judging in context’.61 In place of Kantian type ethical theories, we need to return to practical wisdom—phronesis—and to retrieve again the art of moral judgment. This requires more than simply contextualising moral principles. It goes to the heart of resolving moral conflicts and to the justification process itself. Judging in context requires the kind of conversational skills and virtues involved in the ongoing practice of moral 58

A Gewirth (1996), above n 1, p 124. See: J Habermas, Between Facts and Norms Contribution to a Discourse Theory of Law and Democracy (Cambridge, MA, MIT Press, 1996) 420. 60 Ibid, p 422. 61 See: S Benhabib (1992), above n 8, pp 53, 121–47, esp 123–24. 59

Concluding Remarks

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dialogue and discourse.62 It requires the kind of enlarged mentality that can represent to itself the multiplicity of viewpoints involved in any moral conflict—what Hannah Arendt referred to as ‘representative thinking’.63 It requires a sensitivity to particulars that cannot be achieved by abstracting from context as Gewirth does—despite his protestations to the contrary. Gewirth is concerned with the right to democratic participation. However, he is reluctant to take the additional step of moving towards an inter-subjective concept of reason. This reluctance arises from a failure to recognise the full significance of democratic participation or the importance of a participatory approach in thinking about human rights. Ultimately, the methods adopted by Gewirth limit the potential of his Community of Rights to reconcile feminism and the universalistic discourse of human rights. Human rights law is a powerful tool in allocating both the benefits of membership and the ‘brutalities of exclusion.’64 Only an inter-subjective concept of reason and a relational understanding of human rights, however, can ensure a just and inclusive distribution of such benefits and burdens. And, only if we ensure such a just and inclusive distribution, can we reconcile feminism and the universalistic discourse of rights. The next chapter examines Rawls’s shift towards a political conception of liberalism and his attempt to accommodate communitarian and feminist critiques of rights. Rawls’s attempt at accommodation leads to a shift away from universalism and to a political rather than a metaphysical conception of liberalism. The shift away from metaphysical claims is of interest to difference feminists, who have long struggled with inherited traditions of Enlightenment thinking. Rawls attempts to take us beyond those traditions. His distinction, however, between the political and the non-political is highly gendered. Although he recognises the shortcomings of his earlier Theory of Justice, the public/private divide continues to limit the potential of political liberalism. It reappears in the guise of religious–cultural claims and Rawls’s concern to recognise the significance of such claims. This leads to a kind of ‘trafficking in women’,65 where respect for religious–cultural diversity is signalled by yielding to patriarchal norms and practices. Martha Nussbaum attempts to correct Rawls’s failings, by proposing a ‘friendly amendment to liberalism’.66 As we shall see, however, her continuing appeal to the idea of an overlapping consensus limits her potential to reconcile feminism and universalism.

62

Ibid, p 53. H Arendt, ‘The Crisis in Culture’, in Between Past and Future: Six Exercises in Political Thought (Meridian, New York, NY, 1961) 21–22. 64 See: N Lacey, Unspeakable Subjects: Feminist Essays in Legal and Social Theory (Oxford, Hart Publishing, 1996). 65 S Benhabib, The Claims of Culture (Princeton, NJ, Princeton University Press, 2002) 89. 66 M Nussbaum, Sex and Social Justice (Oxford, OUP (SSJ), 1999) 55. 63

3 Political Liberalism, Feminism and the Limits of an ‘Overlapping Consensus’

I

(PL),1 Rawls moves away from the metaphysical aspects of his Theory of Justice (Theory).2 He proposes instead a political conception of liberalism that avoids appeals to any single metaphysical doctrine.3 His aim is to establish reasonable grounds for cooperation against a background of religious, cultural and other differences. For the human rights movement and for the pursuit of global feminism, there is much that is of interest in PL. Rawls’s idea of an overlapping consensus finds echoes in the work of writers as diverse as Martha Nussbaum, Iris Marion Young4 and Abdullahi An-Naim.5 It is an idea that is attractive to feminism because it allows both for agreement and for differences of affiliation and perspective. As Nussbaum notes, Rawls’s shift towards a political conception of liberalism, marks a recognition of the fragmented nature of our postmodern condition and a greater concern with the significance of religious–cultural differences.6 The difficulty, however, is that Rawls’s political conception of liberalism continues to exclude many of feminism’s most urgent concerns. The domestic sphere and much of civil society is once again placed beyond the tests of justice. Rawls accommodates difference by returning us to a well-established liberal strategy, drawing lines between the political and the nonpolitical. Justice as fairness is limited in scope and applied only to the political sphere. Comprehensive philosophical and religious doctrines, both liberal and illiberal, are allowed to flourish within non-political spheres. This division between the political and the non-political is deeply N POLITICAL LIBERALISM

1

J Rawls, Political Liberalism (Columbia, NY, Columbia University Press, 1993). J Rawls, A Theory of Justice (Oxford, OUP, 1972). For the revised edition, see J Rawls, A Theory of Justice (Cambridge, MA, Harvard University Press, 1999). 3 B Ackerman, ‘Political Liberalisms’ (1994) XCI(7) Journal of Philosophy 361. 4 See: IM Young, Inclusion and Democracy (Oxford, OUP, 2000) 44. 5 A An-Naim, Human Rights in Cross-cultural Perspectives: A Quest for Consensus (Philadelphia, PA, University of Pennsylvania Press, 1992). 6 See, for example, M Nussbaum, Sex and Social Justice (Oxford, OUP, 1999); C Douzinas, The End of Human Rights (Oxford, Hart Publishing, 2000). 2

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gendered. Its roots can be found in Rawls’s Theory which, when first published, largely ignored questions of injustice arising within the domestic sphere. Susan Okin and other Rawlsian feminists argued that this oversight could be remedied.7 She is less convinced, however, by PL.8 Similar difficulties arise in Rawls’s Law of Peoples (LP).9 Political liberalism is limited even further. The international community is conceived as a collection of closed sovereign states and international law is competent to inquire only into a limited set of human rights. International human rights law in this Rawlsian scheme takes a back seat to state sovereignty, domestic jurisdiction and the protection of differing comprehensive doctrines. Though Rawls terms his treatise a Law of Peoples, he is reluctant to pierce the veil of state sovereignty. This reluctance leads, yet again, to a public/private divide that feminist international lawyers have sought hard to overcome. In his concern to accommodate competing philosophical and religious beliefs, Rawls compromises too much for feminism. His liberal principle of legitimacy tries to accommodate widely diverging conceptions of the good without unnecessarily threatening cultural conservatives. In both PL and the LP, it is feminism that loses out. Rawls ends up with a restricted conception of international justice and a law of peoples that leaves feminism vulnerable to the intuitive ideas of ‘decent hierarchical societies’.10 Yielding to the claims of cultural difference, as Rawls does, compromises the pursuit of gender equality, returning women’s human rights claims, yet again, to the private, domestic sphere. The key to Rawls’s problems lie in his shift away from a universalistic normative framework and his reluctance to challenge highly gendered divisions between the public and the private. A. JUSTIFICATORY STRATEGIES: FROM A THEORY OF JUSTICE TO POLITICAL LIBERALISM

When A Theory of Justice first appeared in 1971, it received, for an academic work on moral philosophy, an unprecedented welcome.11 It was also, however, greeted with some suspicion. Its publication came at a time when liberalism had fallen into disrepute. Rawls’s stated goal was to produce a persuasive, coherent framework for an egalitarian liberalism. To many, however, Rawls was an unashamed polemicist for the status quo. As Hugo Adam Bedau commented, ‘As a work of original scholarship in the services of the dominant moral and political ideology of our civilization, Rawls’s 7

SM Okin, Justice, Gender and the Family (New York, NY, Basic Books, 1989). SM Okin, ‘Political Liberalism, Justice, and Gender’ (1994) 105(1) Ethics 23. 9 J Rawls, The Law of Peoples (Cambridge, MA, Harvard University Press, 1999). 10 Included within Rawls’s reasonable society of peoples are liberal democratic and decent hierarchical societies. Ibid, pp 63–64. 11 J Rawls, above n 2. 8

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treatise is simply without a rival.’12 Theory was dismissed as being shallow compared with the ‘deep [. . .] truths of Hegel or a Hegelianized Marx.’13 Feminism, now moving away from its first wave, shared this suspicion of Rawls’s attempt to rejuvenate liberal political theory. Rawls’s abstract philosophising represented all that was antithetical to feminist methods. He relied on an abstract conception of the person and ‘an individualist, nonsocial, idea of human nature’14 and his conception of justice as fairness ignored questions of injustice within the family, creating a distinction between the public and domestic sphere that was unworkable and deeply gendered. The problems with Rawls’s conception of justice go right to the root of the justificatory strategies that he employs to support it. In his Theory, he appeals to a hypothetical social contract and to the deliberations of hypothetical contractors situated in the original position. However, though he presents the original position as a process of collective deliberation, his conception of the moral point of view obscures the dynamic, dialogical aspects of justification. It obscures also the relational aspects of the human self and of moral reasoning. Ultimately, Rawls relies on a conception of the self and of moral reasoning that is at odds with much of feminist theorising on questions of justice. The result is that the concerns of groups traditionally excluded from liberal political theory, including women, remain at the margins of Rawls’s Theory. For Rawls, the moral point of view is the point of view of impartial reason. Adopting this point of view requires one to follow strict methodological rules, rules that are designed to eliminate particular interests, desires, emotions and commitments from the process of moral reasoning. Impartial, objective value judgements give no special weight to particular interests or to such contingent properties as ethnicity, class or sex. For many, however, communal attachments, values of solidarity and connection, are not something that can or should be dispensed with when deliberating on questions of justice. Those caring for dependent others do not so easily cast off the ties of family and community. Faced with the concrete moral problems of everyday life, it is difficult to accept that the best justificatory strategy for a theory of justice is an appeal to a gender, colour, class-blind process of moral reasoning. Why should any actual rational persons, who know about their individual characteristics, accept moral principles that are based on the ‘contra-rational assumption of their total ignorance of those characteristics?’15 Why, we might ask, should we not use a thinner veil of ignorance?

12

Nation, 11 September 1972, p 180. N Daniels, Reading Rawls: Critical Studies on Rawls’s ‘A Theory of Justice’ (Oxford, Blackwell, 1975) p xxxv. 14 Above n 11, p xxix. 15 See: A Gewirth, The Community of Rights (Chicago, IL, University of Chicago Press, 1996) 27. 13

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Rawls’s Difference Principle is designed to benefit the least advantaged in society. However, once we are stripped of all knowledge of history or society, it is unclear how the least advantaged can be identified. This abstraction from context has consequences also for the dialogic aspects of Rawls’s justification process. The device of the original position is intended to suggest a dialogue between ‘hypothetical contractors’. But there is no plurality of perspectives in the Rawlsian original position. There is only ‘a definitional identity’.16 Rawls argues that moral reciprocity involves the capacity to take the standpoint of the other, to put oneself in the place of the other. However, one of the prerequisites of reversibility, namely a distinction between self and other, is absent from his original position. Difficulties arise also in attempting to carry out a universalizability test. Behind the veil of ignorance, we lack the necessary epistemic information to judge a moral situation to be like or unlike any other. In his later work, Rawls begins to move away from the Kantian metaphysics of A Theory. In PL, he employs the tools of political constructivism and appeals to ‘certain fundamental intuitive ideas [. . .] latent in the public political culture of a democratic society.’17 These ‘intuitive ideas’ form the basis for an overlapping consensus, which, in turn, specifies reasonable grounds for co-operation between different comprehensive doctrines. Feminists such as Iris Marion Young and Martha Nussbaum have welcomed this shift in Rawls’s methods and in his conception of justice.18 However, difficulties remin. Rawls appeals to public political culture as the underlying basis for an overlapping consensus. Liberalism, ideas of rights and commitments to gender equality, however, may not be in the ascendant in public political culture. If it is to retain its radical potential, a conception of justice cannot be premised on the ideas and practices that are widespread at any particular time. The challenge for liberalism is ‘to criticize political culture, not rationalize it.’19 Rawls’s idea of an overlapping consensus is too parasitic on existing practice to be transformative. B. THE POLITICAL, THE NON-POLITICAL AND AN OVERLAPPING CONSENSUS

PL recognises the fact of religious and philosophical difference. It tries to devise a political framework within which competing conceptions of the good can be accommodated. The problem, however, is that this accommodation comes at the cost of challenging existing structures of inequality. The 16 S Benhabib, ‘The Generalised and the Concrete Other: The Kohlberg-Gilligan Controversy and Feminist Theory’ in S Benhabib and D Cornell, (eds), Feminism as Critique: On the Politics of Gender (Minneapolis, MN, University of Minnesota Press, 1986) 77, 90. 17 B Ackerman, (1994), above n 3, p 361. 18 See M Nussbaum, (1999), above n 6; and IM Young, (2000), above n 4. 19 B Ackerman, (1994), above n 3, p 377.

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danger in relying on an overlapping consensus is that the accommodation of difference will yield, yet again, to those traditions and practices that perpetuate gender inequality. This danger, signalled in PL and identified by Susan Okin and others, is well founded. PL recognises the fact of religious and philosophical difference. It tries to devise a political framework within which competing conceptions of the good can be accommodated. The problem, however, is that this accommodation comes at the cost of challenging existing structures of inequality. From a feminist perspective the danger in relying on an overlapping consensus is that the accommodation of difference will yield, yet again, to those traditions and practices that perpetuate gender inequality. This danger, signalled in PL and identified by Susan Okin and others,20 is well founded. Rawls seems convinced that anything more than a political conception of justice is unrealistic, given the fact of reasonable pluralism. To avoid disagreement, he defines the political so as to exclude questions of justice within much of civil society and the domestic sphere. He repeats again the mistakes of A Theory. This time, however, the problem seems more intractable. Underlying this problem is a dispute as to the value of individual autonomy within political liberalism. Rawls is reluctant to recognise autonomy as a core value within political liberalism. He argues that an autonomybased defence of individual rights would necessarily draw on ‘ideals and values that are not generally . . . shared in a democratic society’.21 If liberalism were to invoke autonomy as a core value, it would become, he says, yet another sectarian doctrine. ‘The liberalism of Kant and Mill’, he says, ‘may lead to requirements designed to foster the values of autonomy and individuality’.22 However, political liberalism has a different aim and requires far less. But how much less is really required by political liberalism? In his essay, Public Reason Revisited, Rawls returns to this question.23 Where conflicts arise between religious doctrine and gender equality, he appeals to the notion of voluntariness. A gendered division of labour based on religion is reasonable, he says, if it is voluntary.24 Citing JS Mill’s landmark On the Subjection of Women, he argues that any decent liberal conception of justice (including justice as fairness) implies equal justice for women as well as men. He accepts that this should have been made more explicit in his work. However, he argues that the omission was his fault and not that of political liberalism itself.25 As to the exclusion of the domestic/intimate sphere from the political sphere, he argues that the political and non-political 20

SM Okin, (1994), above n 8, p 28. J Rawls, ‘The Idea of an Overlapping Consensus’ (1987) 7(1) Oxford Journal of Legal Studies 1, 6, 24. 22 PL, p 199. 23 J Rawls, (1997), above n 21. 24 Ibid, p 765. 25 Ibid, p 787. 21

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domains should not be viewed as separate, disconnected spaces. There is no such thing, he says, as a private sphere exempt from the principles of justice.26 He is ready to admit that family members may need protection from other family members and that the exploitation of women’s unpaid domestic labour is unjust. He speaks of the ‘long and historic injustice’ to women arising from unequal distribution of childcare responsibilities and is willing to recognise women’s right to compensation for unpaid domestic labour on divorce and the need for public attention to childcare.27 Potentially, this would open up the family to feminist reforms, undermining the traditional gendered division of labour within the family and also undermining ways of life that oppose the culture of the modern world. Opposing the culture of the modern world often takes the form of reasserting traditional gender-roles. The discriminatory decrees of the Taliban, implemented with brutal force, are an extreme example. International human rights law, if properly implemented, would extend the principles of liberalism to the domestic/intimate sphere, challenging many traditional ways of life. Article 5 of CEDAW, for example, requires that States parties take all appropriate measures, ‘to modify the social and cultural patterns of conduct of men and women’.28 This, however, is a far more thoroughgoing reform than Rawls is willing to contemplate or than a purely political conception of liberalism would permit. Rawls’s concern, of course, is that such a programme of reform would threaten political liberalism’s overlapping consensus. Once the principles of justice begin to scrutinise the internal workings of the family, it becomes more difficult to find reasonable grounds for co-operation. This dilemma is familiar to feminist commentators on international human rights law. Questions concerning justice within the family have traditionally fallen into the penumbra of human rights norms, identified as issues that are somehow private and cultural rather than universal and political. Attempts to extend the reach of human rights law into the internal workings of the family have met with much resistance. Article 16 of CEDAW seeks to eliminate discrimination in all matters relating to marriage and family relations. Though welcomed by feminists as an attempt to break down the public/private divide within international human rights law, Article 16 of the Convention has attracted extensive reservations from States Parties.29 Similar difficulties have arisen in relation to the UN Convention on the Rights of the Child (CRC).30 Although the CRC is the most widely ratified of the human rights 26

Ibid, p 791. Ibid, p 793. Convention on the Elimination of All Forms of Discrimination against Women, adopted 18 December 1979, entered into force 3 September 1981, GA Res 34/180, 34 UN GAOR, Supp No 46, UN Doc A/34/46, (1979) 193, Art 5. 29 See further below, ch 5. 30 Convention on the Rights of the Child, adopted 20 November 1989, entered into force 2 September 1990, GA Res 44/25, 44 UN GAOR, Supp (No 49), UN Doc A/44/49 (1989) 166. 27 28

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treaties, it is also one of the most heavily reserved.31 Children’s rights inevitably touch on relations within the family, thus touching on an aspect of daily life that is central to religious–cultural traditions. When human rights norms begin to extend their reach, an overlapping consensus becomes more difficult to reach. Achieving an overlapping consensus is dependent on allowing a sufficient space for the flourishing of different comprehensive doctrines. To protect this space, political liberalism is applied only to ‘the main institutions of political and social life’.32 For Rawls, these institutions can be identified by the deep and long-term social effects they have on our characters and aims, on the kinds of persons we are and aspire to be.33 These institutions do not include the family. In his ‘Public Reason Revisited’, Rawls seems to argue that the family is both part of the basic structure and yet not political.34 Although he is anxious to address gender inequalities within the non-political realm, he continues to argue that the familial sphere is somehow distinct from the main institutions that characterise the basic structure. The principles of justice don’t apply to the internal life of the family or religious associations, nor, Rawls argues, ‘is it desirable, or consistent with liberty of conscience or freedom of association, that they should.’35 Rawls’s reluctance to extend the principles of justice to the internal workings of the family can be traced back to the first edition of his Theory. In the original position, the hypothetical contractors are ‘heads of households’. Justice as fairness does not intrude upon the internal life of the domestic sphere. Rawls presumes that his hypothetical contractors will be beneficient altruists in their other lives—their lives internal to the domestic sphere. In his later work, Rawls attempts to correct this failing. He abandons the heads of families assumption and adds sex to the list of morally irrelevant contingencies that are not known in the original position.36 Okin argues that the principles of justice must be applied within the domestic sphere.37 In PL, however, this division returns again, this time disguised as a distinction between political and comprehensive liberalism. Rawls believes that a just liberal society, based on political liberalism, will allow far more space for different comprehensive doctrines than other social worlds. However, his argument runs into a number of problems.

31 See: W Schabas, ‘Reservations to the Convention on the Rights of the Child’ (1996) Human Rights Quarterly 18, 473–91. 32 PL, p 175. 33 PL, p 68. 34 SM Okin, (1994), above n 8, p 26. 35 Ibid. 36 SM Okin, (1994), above n 8, p 24, n 5. 37 See: AR Baehr, ‘Toward a New Feminist Liberalism: Okin, Rawls, and Habermas’ (1996) 11(1) Hypatia 49, 54.

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By limiting the scope of political liberalism, Rawls hopes to placate communitarian critics. He ends, however, by pleasing no-one. For those not ascribing to liberal democratic values, Rawls’s political liberalism is as hostile and sectarian as Mill’s comprehensive liberalism. PL presumes the overriding value of autonomy within the political sphere and confines comprehensive beliefs and doctrines to the non-political realm. Included within Rawls’s discussion of unreasonable comprehensive doctrines are religions that require control of the machinery of State. These, he says, would not survive in the well-ordered society of political liberalism.38 ‘The nature of [their] culture and institutions’ would prove too ‘uncongenial.’39 This falls far short of meeting the demands of communitarian critics, many of whom seek to redefine the public sphere. It also fall short of responding to demands for group differentiated or multicultural citizenship. Rawls fails to recognise that the demands of differentiated citizenship may require more than permitting comprehensive doctrines to flourish within the nonpolitical realm. PL is no more that what Judith Shklar has described as a liberalism of ‘permanent minorities’.40 Its concern is to guard against persecution and fear, to permit religious freedom and liberty of conscience, but not to take the additional step of transforming the public sphere. PL distinguishes between the point of view of a person qua citizen and qua family member or member of a religious association.41 This distinction is based on a fundamental misunderstanding of the role of comprehensive doctrines, in particular religious doctrines, in many people’s lives. Although for some religion might refer only to a system of faith or worship, to others it represents all that goes with ‘statecraft’ and ‘way of life’.42 Some would argue, for example, that the proper observance and practice of the injunctions of Islam, in community with others and in public, requires the establishment of an Islamic state and the enforcement of the Shari’ah. Similar arguments can be found amongst adherents of other religions. In predominantly Roman Catholic states such as Ireland, for example, religious doctrine has historically been closely intertwined with constitutional debates on reproductive rights and the legal regulation of the family.43 Rawls seems to suggest that the human self can be split into political and nonpolitical selves. His account of our non-public identity is based on a communitarian concept of the self—a self that is embedded within communal 38

PL, pp 196–97. Ibid, p 197. 40 See: J Shklar, The Faces of Injustice (New Haven, CT, Yale University Press, 1990). See also: J Levy, The Multiculturalism of Fear (Oxford, OUP, 2000). 41 J Rawls, (1997), above n 23, p 765. 42 See the judgment of the Lahore High Court, Pakistan, explaining the term ‘Din’ in Arabic. PLD 1976 Lah 930, discussed below, ch 9. 43 See further below chs 7 and 8. 39

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networks. His political conception of the person, on the other hand, is based on the liberal ideal of the freely choosing autonomous self.44 Within the nonpolitical sphere, the human self can ‘recognize and affirm his [sic] particularity’.45 Within the sphere of the political, on the other hand, the self is stripped of all particularities. This division leads to a divided self—a self that is plagued by tensions between ‘autonomy and nurturance, independence and bonding, sovereignty of the self and relations to others’.46 Underlying this division, is an opposition between reason and sentiment, an opposition that recurs throughout Rawls’s work. That the distinction goes to the heart of political liberalism is evident from the definition of the personal and familial, which, he says, ‘are affectional . . . in ways the political is not’.47 In excluding the personal and the familial from the political, Rawls denies the importance of moral motivation and character in thinking about questions of justice. In Theory, considerable emphasis was placed on the role of the family in nurturing a sense of justice and on the importance of developing moral understanding.48 In PL, however, Rawls’s account of moral development is more Kantian, ‘more autonomous and intellectualised, less relational and concerned with moral feeling’.49 This lack of attention to questions of moral development leads to problems of congruence between the political and the non-political spheres. Rawls argues that in personal affairs or in the internal life of associations, it would be unthinkable to view oneself apart from one’s enduring attachments and loyalties. In the political realm, however, he seems to think that these attachments and loyalties can simply be dispensed with. He argues, for example, that a person who converts from one religion to another does not cease to be, for questions of political justice, the same person that they were before. He accepts, for example, that in our non-political lives we might hold the view that there is a fixed natural order or a ‘hierarchy justified by religious or aristocratic values’.50 It is difficult, however, to see how a belief in a natural hierarchy can be reconciled with a conception of justice that views all human beings as free and equal citizens.51 As Susan Okin asks, how could one both hold and practice in one’s personal, familial, and associational life the belief that women are naturally inferior, without its seriously affecting one’s capacity to relate politically to women as citizens, free and equal? Rawls’s intention in developing a political conception of justice was to accommodate widely differing comprehensive conceptions of the good. But 44 W Kymlicka, Multicultural Citizenship a Liberal Theory of Minority Rights (Oxford, Clarendon Press, 1995) 160. 45 S Benhabib, (1986), above n 16, p 67. 46 Ibid, p 86. 47 PL, p 137. 48 SM Okin, (1994), above n 8, p 34. 49 Ibid. 50 PL, p 15. 51 SM Okin, (1994), above n 8, p 29.

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this accommodation is not possible without fundamental changes in the nature of such doctrines. Universal agreement on the principles of justice can only be achieved by excluding either the moral and political doctrines of religious conservatives or feminist arguments in areas such as family reform, reproductive rights and equal rights to political representation.52 Rawls is reluctant to admit to this because it threatens the central goal of political liberalism—building a political conception of justice on the basis of an overlapping consensus. In PL, he identifies conceptions of the good that require repression or degradation on racial or ethnic grounds as unreasonable comprehensive doctrines. He doesn’t mention repression on gender grounds. In Public Reason Revisited, he tries to correct this, suggesting that any decent conception of justice must include equality for women. This is difficult to reconcile, however, with Rawls’s often conflicting aim of allowing reasonable comprehensive doctrines to flourish. In PL, Rawls acknowledges that his conception of justice may not have correctly defined or delimited the non-political.53 However, he fails to recognise that the delimitation of this space is deeply gendered. Feminism does not necessarily renounce the constraints on state power advocated by Rawls, or his concern to preserve a sphere of private liberty. However, what it does deny is that conventional public/private dichotomies can provide a useful conceptual scheme for drawing lines between the political and the non-political. Rawls seems reluctant to move beyond conventional dichotomies. These conventional dichotomies remain in Rawls’s discussion of international law. C. THE LAW OF PEOPLES AND THE DEFENCE OF DOMESTIC JURISDICTION

Prior to the publication of the Law of Peoples, Rawls devoted little time to the discussion of international law. Both PL and A Theory are black box theories, that is, they presume that nation-states are self-contained units, closed societies, and that international relations are concerned primarily with relations between these closed societies. This view of the original position as comprising only states reinforces an opposition between the state/non-state that has served to exclude women and other groups marginalised from the institutions and processes of nation-States. Rawls recognises that the idea of a closed society is a considerable abstraction. However, he nonetheless proceeds to develop a conception of justice based on this abstraction. In doing so, he gives a moral significance to arbitrarily determined borders,54 denying the empirical realities of globalisation, permeable 52 J Exdell, ‘Feminism, Fundamentalism, and Liberal Legitimacy’ (1994) 24(3) Canadian Journal of Philosophy 441, 455. 53 PL, p 198, n 33. 54 T Pogge, Realizing Rawls (Ithaca, NY, Cornell University Press, 1989) ch 5.

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national boundaries and the ‘subversion of distinctive national systems.’55 Rawls’s view of inter-state relations relies on a separation thesis, a view of states as disconnected, isolated atomistic beings. Relations between states are competitive, disinterested, contractual in nature. This assumption of innate selfishness and of competitiveness between states is deeply gendered. Rawls repeats many of the errors of liberal social-contract theorists, ignoring the reality of interdependence and the possibility of identifying common interests, beyond the realm of contractual obligations or a core set of human rights norms. To use Charlesworth and Chinkin’s image, within the Rawlsian picture, states are viewed as billiard balls that knock haphazardly against each other, leaving little or no imprint, one on the other.56 This view of inter-state relations denies the reality of interdependence and of permeable national boundaries. The very phenomenon of globalisation relies on the subversion of distinctive national systems. Following Robin West, we might also argue that it is deeply gendered, adopting, as it does, a separation rather than a connection thesis.57 Rawls’s conception of international law is gendered in another way. He invokes a public/private divide that human rights activists and feminists have spent the last 50 years trying to overcome. The domestic jurisdiction defence returns with full force guarding against the scrutiny of all but a core set of human rights. ‘How peoples treat each other and how they treat their own members’, he says, ‘are . . . two different things.’58 The LP is concerned only with ‘politically relevant’ subjects.59 Issues relating to gender equality are hived off, hidden behind the shield of domestic jurisdiction. The cult of domesticity, yet again, renders gender inequality a private, cultural, internal matter. Within the Rawlsian view of international law, only a limited set of human rights are deemed to be of political relevance. Human rights play a special role in Rawls LP. They restrict the justifying conditions of war and its conduct and they specify limits to a regime’s internal autonomy—or as Rawls puts it, they set a limit to ‘the pluralism among peoples’.60 These limits, however, do little to challenge entrenched gender hierarchies. The LP allows for two distinct kinds of societies, liberal democratic and decent hierarchical societies. ‘Outlaw states’ fail to satisfy the minimum normative requirements of the LP, while states suffering from unfavourable conditions lack the resources necessary to do so. To qualify as a decent hierarchical society, two criteria must be satisfied: (a) A decent 55 H Charlesworth and C Chinkin, (2000), The Boundaries of International Law (Manchester University Press, Manchester, 2000) p 139. 56 Ibid, pp 138–39. 57 See: R West, ‘Jurisprudence and Gender’ in K Bartlett and R Kennedy, (eds), Feminist Legal Theory: Readings in Law and Gender (Boulder, CO, Westview Press, 1991) 201. 58 LP, above n 9, p 83. 59 Ibid, p 85. 60 Ibid, pp 79–80.

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society must honour the laws of peace and (b) its system of laws must respect human rights and follow ‘a common good idea of justice’.61 For Rawls, human rights protected at the international level are a sub-set of those rights protected within liberal democratic states. Citizens of liberal democratic states will therefore enjoy a greater protection of rights than is provided for by international law. The Law of Peoples protects only a core set of human rights. These include: the right to life; to liberty; to property; and to formal equality. This list falls far short of the rights agreed upon in the 1948 Universal Declaration of Human Rights62 or in subsequent human rights treaties. Apart from recognising the right to property—betraying his roots in classical liberal traditions—Rawls is reluctant to extend the scope of human rights law beyond the minimum necessary to guard against a ‘slave system’ or ‘command by force’.63 Despite his advocacy of a politics of tolerance, his willingness to accept basic inequality extends even to allowing that there may not be equal liberty of conscience within decent societies. There are other difficulties in Rawls’s political liberalism. In Public Reason Revisited,64 Rawls argued that any decent liberal conception of justice (including justice as fairness) requires equal justice for women as well as men. This privilege, however, is limited to liberal democratic societies. For women in decent hierarchical societies, much less is required. Within the Rawlsian scheme, decent societies occupy a space between the fully unreasonable and the fully reasonable. This space is a gendered one, a penumbral area within which gender inequalities are accepted. Rawls presents his compromise as a necessary one, drawing, yet again, on the language of inevitability. In PL, this lead to a reification of the public/private divide, presented as a division between political and nonpolitical spheres. In the LP, it leads to a reification of the state sovereignty and domestic jurisdiction. The LP is presented as a neutral body of rules, the product of an overlapping consensus. It is, however, far from neutral. Underlying Rawls’s commitment to sovereign equality and the protection of domestic jurisdiction is an undisclosed map of ideological commitments. These ideological commitments lead to a naturalisation of state sovereignty that echoes PL’s naturalisation of the family and the domestic sphere. Rawls’s willingness to yield to cultural conservatives leads him to compromise even on rights to political participation. While representatives of decent hierarchical societies participate on an equal footing at the international level, equal rights to political participation need not necessarily apply

61

Ibid, p 68. Universal Declaration of Human Rights, adopted 10 December 1948, GA Res 217A (III), UN Doc A/810 (1948) 71. 63 Ibid. 64 Rawls J, ‘The Idea of Public Reason Revisited’ 1997 64 (3) University of Chicago Law Review, 765-807. 62

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at the domestic level. His common good idea of justice requires only that a decent consultation hierarchy exists. In ‘Kazanistan’, the idea of one citizen, one vote does not apply. Political and judicial offices may be limited to those of a particular political affiliation.65 Rawls recognises that this inconsistency between rights to political participation at inter-state and intrastate levels might be viewed as unjust. He argues, however, that the right to participate equally in political deliberations could be viewed as an individualistic idea, an idea that relies for its validity on an appeal to the value of autonomy and to the equal moral worth of all persons.66 Rawls is reluctant to invoke a moral conception of the person, fearing that to do so would not only blur the distinction between political and comprehensive liberalism but would also alienate decent hierarchical peoples. This reluctance can be traced back to Rawls’s conception of autonomy and his willingness to compromise individual autonomy so as to accommodate a flourishing of comprehensive doctrines. Rawls brings us back to Hegel’s ‘organic order’ and his objections to the ‘democratic, even anarchical, principle of separation’ underlying direct suffrage.67 In a decent hierarchical society, a Hegelian understanding of the self holds sway. Participants in the consultation hierarchy represent not the interests of separate citizens, but of the groups of which they are members. These groups take the form of estates, corporations, associations or even nation-states. Rawls speaks of an ‘associationist social form’ in which individuals are viewed first as ‘responsible and co-operating members of their respective groups’, with duties and obligations qua members of these groups.68 Rawls is reluctant to encroach upon those duties and obligations or to limit unduly the internal autonomy of groups. As a result, he fails to question how different groups are represented within the consultation hierarchy, or how their needs and interests are to be defined. This has consequences for women and for the pursuit of a feminist agenda through political participation. Those claiming to represent community views do not always do so accurately. Traditions, cultures, community interests are usually defined by the dominant voices within a group, often at the expense of women. These debates have been at the heart of a number of multicultural conflicts, from the Sandra Lovelace case in Canada, to the Shah Bano and Danial Latifi cases in India. They have also been at the heart of debates on group differentiated citizenship, collective claims to autonomy and self-determination and claims to religious freedom. These debates, however, seem to have passed Rawls by. Debates on representation, democratic dialogue, the right to democratic governance also seem to have passed Rawls by. He imagines that in a decent 65 66 67 68

LP, p 76. Ibid, p 73. Ibid, p 73. Ibid, p 66.

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society, important reforms will come about in relation to the rights and role of women.69 This seems, however, to be little more than a hopeful imagining. There is no requirement that women have equal rights to political participation, only the hope that they will be the beneficiaries of reform. Rawls fails to give much thought to the steps required to create a heterogenous public sphere, devoting only a few lines to women’s representation in the consultation hierarchy. To ensure that the consultation process is an inclusive one, he suggests that representatives of oppressed groups should be chosen from within those groups. Nothing is said, however, about the proportion of political representatives to be drawn from oppressed groups or indeed how such a group is to be identified. Rawls seems to appeal to an understanding of oppression that transcends the prevailing norms within decent hierarchical societies. He fails to elaborate on this, however, recognising, perhaps, that he is extending the limits of his minimum requirements for decency. He also presumes that liberal-democratic states adequately represent the views of their citizens, that there is no need for consultative processes that go beyond the paradigm of one citizen, one vote. Yet if we examine the records for women’s involvement in political processes, we see that women remain consistently under-represented.70 Various strategies have been proposed and suggested as remedies for the exclusion of women and other disadvantaged groups. Women’s human rights groups have grappled with issues of women’s presence/absence in political processes. They have sought to supplement and to examine alternatives to decision-making processes that rely solely on the workings of representative democracies. Anne Philips, along with Iris Young and others, has advocated a politics of presence, pointing to the importance of creating a heterogenous public sphere through mechanisms that supplement the processes of representative democracy.71 Rawls ignores these debates, however. His conception of decent societies is based on a binary opposition—liberal democratic or decent hierarchical. The common thread in both is that women are marginalised within decision-making processes. Rawls justifies his modest conception of a Law of Peoples by citing Kant’s critique of the idea of world government, an idea that he says is doomed to failure, given the fragmented interests of nation-states.72 He presents this fragmentation of interests as inevitable, thereby limiting the

69

Ibid, p 78. The Gender Empowerment Measure of the UNDP assesses women’s representation in parliaments worldwide. See: http: //www.undp.org/gender/datastats/index.html#INDICES, as viewed on 20 July 2002. 71 See: A Phillips, The Politics of Presence (Oxford, Clarendon Press, 1995); A Phillips, Who is Author? Oxford Political Theory: Which Equalities Matter? (London, Polity Press, 1999); IM Young, (2000), above n 4. 72 J Rawls, LP, p 36. See: I Kant, LW Beck, (ed), Perpetual Peace: A Philosophical Sketch (1795) (New York, NY, Liberal Arts Press, 1957); J Bohman and M Lutz-Bachmann, (eds), Perpetual Peace: Essays on Kant’s Cosmpolitan Ideal (Cambridge, MA, MIT Press, 1997). 70

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scope for agreement on human rights. This conclusion, however, is far from inevitable. Although, classical international law has been concerned primarily with inter-state relations, international human rights law has sought to re-define the values at stake in international law and to recognise the diverse range of participants in the international legal system—from individuals, to non-governmental organisations and indigenous peoples. Rawls is reluctant to open up the process of international law-making. Only states, liberal democratic and decent hierarchical states, participate in his original position to determine the content of the Law of Peoples. Satisfaction of Rawls’s minimum requirements for decency is enough to participate and to be tolerated in the international legal system. Again, Rawls draws back from developments in contemporary international law. The protection of human rights—not Rawls’s bare bones view of human rights, but the full panoply of international human rights law—has come to be viewed as a precondition to membership in bodies such as the European Union or the United Nations, and indeed, in some cases, as a prerequisite for statehood.73 Although, this remains very much at an aspirational level, at best part of a growing body of lex ferenda, it is more than Rawls seems willing to aspire to. D. CONCLUDING REMARKS

As Seyla Benhabib notes, intercultural differences are most keenly felt along the boundaries demarcating the public and the private.74 How a theory of justice and rights demarcates those boundaries determines its commitment to gender equality. All too often, the private is defined so as to include issues at the heart of feminist agendas. With the rise of a politics of recognition and the assertion of cultural difference, the public/private divide has reappeared. The role of religion in this debate creates particular difficulties for liberal thinkers. As Martha Nussbaum points out: ‘If the government defers to the wishes of the religious group, a vulnerable group of individuals will lose basic rights; if the government commits itself to respecting the equal human rights of all individuals, it will stand accused of indifference to the liberty of conscience.’ This problem raises a peculiarly liberal dilemma. For Rawls, the question of equal liberty of conscience is settled. It is one of the fixed points of our understanding of justice. Rawls is reluctant to challenge those fixed points, 73 See, for example, Guidelines on the Recognition of New States in Eastern Europe and the Soviet Union, adopted by the Council of the European Community, on 17 December 1991, reproduced in (1991) 62 BYIL 559. See also EC Declaration on Yugoslavia, adopted by the Council of the European Community, on 17 December 1991, reproduced in (1991) 62 BYIL 559. 74 S Benhabib, The Claims of Culture (Princeton, NJ, Princeton University Press, 2002) 83.

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even in the name of gender equality. This reluctance has been given an added support with the rise of the politics of recognition. The problem for feminism is that this politics, all too often, leads to a gendered division between the public and the private, as comprehensive doctrines are allowed to flourish within the domestic sphere. And although Rawls is anxious to protect the equal right to liberty of conscience, his deferral to the religious—cultural claims of communities and states threatens this right. Within many states, and religious communities, women’s equal right to liberty of conscience is denied, as dissenting voices are silenced and feminist interpretations of religious—cultural traditions rejected. The negotiation of cultural conflicts is a key test for any theory of rights. For feminism, it is a test of a theory’s commitment to gender equality. Rawls’s political liberalism fails this test. His political liberalism is a defensive liberalism. It resolves multicultural dilemmas by placing cultural conflicts on the privacy side of the public/private divide. Rawls hides his reluctance to challenge gender inequalities behind an appeal to the boundaries between the political and the ‘non-political’. Feminism has exposed the gendered nature of such boundaries. Rawls, himself, has accepted feminist critiques of the public/private divide. He acknowledges his neglect of the domestic sphere in his earlier work. However, in PL, his concern to accommodate religious—cultural differences limits his willingness to redefine the boundaries between the public and the private. In PL, the ‘cult of domesticity’ serves to shield injustices within the family and domestic sphere. In the Law of Peoples, the right to gender equality, viewed substantively, is hived off again into the domestic sphere, this time the sphere of domestic jurisdiction. The sovereign replaces the head of household, successfully protecting his domain from the scrutiny of legal institutions. By invoking privatising rights-claims, religious freeedom, liberty of conscience and the sovereign equality of states, Rawls presents this boundary between the political and nonpolitical realms as natural and inevitable. Frances Olsen and others have exposed the ideological commitments that underpin the public/private divide in international law.75 Rawls, however, continues to follow the path of many liberal theorists by drawing lines that seek to hide those commitments. His black box theory fails to take account of attempts to transform the international legal system The international human rights movement, including transnational and crosscultural networks of feminist groups, has sought to transform the process of international law-making. Though these attempts have not always met with success, they hold out the possiblity of a transformative challenge to

75 F Olsen, ‘International Law: Feminist Critiques of the Public/Private Distinction’ in DG Dallmeyer, (ed), Reconceiving Reality: Women and International Law (Washington DC, American Society of International Law, 1993) 157.

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the institutions and processes of international law. In contrast, Rawls’s statist view of the society of ‘reasonable and decent peoples’, functions so as to prevent transformative outcomes. His over-riding concern is to maintain a peaceful co-existence, to keep things ‘running smoothly’, without unduly challenging cultural conservatives. But at what cost for feminism? Within Rawls’s vision for a Law of Peoples, human rights are co-opted into the service of maintaining a modus vivendi between liberal democratic and decent hierarchical societies—neither of which hold out much promise for transformative feminist outcomes. The role of human rights law, properly understood, is to challenge the status quo with all its strategies of exclusion. In his Law of Peoples, Rawls takes us back more than 50 years, leaving us with a lowest common denominator for co-operation between sovereign nation-states. The next chapter examines Martha Nussbaum ‘friendly amendment to liberalism’. Nussbaum recognises the problems raised by Rawls’s continuing adherence to a division between public and private spheres, both at national and international levels. She believes, however, that these problems can be overcome.

4 Nussbaum and the Human Capabilities Approach: Reconciling Feminism and Universalism?

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two decades, feminism has increasingly distanced itself from liberalism. Nussbaum is anxious to reverse this trend and to highlight the radical potential of liberalism for feminists. She offers her human capabilities approach as a ‘friendly amendment to liberalism’.1 She remains firmly rooted in the liberal tradition but is critical of many of its central tenets. She questions how and why distinctions are drawn between the right and the good, the public and the domestic, the political and the non-political. Though she remains committed to preserving a sphere of private liberty and choice, she pulls the ground from under many of liberalism’s sacred cows. She muddies the waters a little and in doing so opens up the way for a feminist re-assessment of liberalism and with it, the discourse of human rights. Nussbaum describes her feminism as ‘international, humanist, liberal’, and ‘concerned with sympathetic understanding’.2 The Ethics of justice and rights is here combined with an Ethics of Care and sympathy. A powerful picture emerges from this combination, a picture that links feminist inquiry with the pursuit of national and international justice. The international human rights movement is given a central role in this project. As a movement it is charged with promoting and protecting human dignity, cross-culturally and across the borders of nation-states. Nussbaum’s internationalism is rooted in her commitment to humanism and to the liberal principle of equal concern and respect. She is not apologetic for her universalist ambitions, though she recognises that universalism is, to say the least, unfashionable. The arguments of cultural relativists and anti-essentialist VER THE LAST

1 See: M Nussbaum, Sex and Social Justice, (SSJ) (Oxford, OUP, 1999) 55–80; M Nussbaum, Women and Human Development: The Capabilities Approach (Cambridge, CUP, 2000) (WHD); M Nussbaum, ‘Capabilities and Human Rights’ (1997) 66 Fordham Law Review 273. 2 Ibid, (1999), p 6.

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feminisms clearly anger her. She is passionate in her dismissal of their claims and is a staunch defender of cross-cultural universals.3 At the same time, Nussbaum is aware of the need for cultural specificity and for solutions that are responsive to concrete needs. As she points out, the real lives of women are varied. By applying feminist methods, she hopes to overthrow the myth that feminism and the discourse of human rights are somehow western or that cultures and traditions are monolithic. Difficulties remain, however, with the justificatory strategy that Nussbaum adopts. She avoids the abstractions of a universalistic legislating reason but remains wedded to the Rawlsian concept of an overlapping consensus. The justificatory basis for her list of human capabilities is to be found in this consensus. This brings its own problems. A critical feminism will inevitably need to go beyond a rationalization of conventional wisdom. The very parameters of conventional wisdom will be subject to challenge and questioning. Appealing to an overlapping consensus potentially limits the possibility of such challenges. A. THE HUMAN CAPABILITIES APPROACH, EQUALITY AND THE LIBERAL IDEAL OF AUTONOMY

Nussbaum’s work on the human capabilities approach grew out of her involvement with a quality of life project undertaken by a number of philosophers and economists on behalf of the World Institute of Development Economics Research (WIDER) of the United Nations University. The project led to a coming together of philosophy and development economists and an articulation of quality of life in terms of human capabilities.4 Following the end of the WIDER project, Nussbaum continued to work on the concept of ‘quality of life’, ultimately developing a list

3 See Nussbaum’s discussion of anti-universalist conversations at the World Institute for Development Economics Research (WIDER), M Nussbaum, (1999), above n 1, pp 35–39. 4 The WIDER project led ultimately to the Human Development Reports, published annually since 1991 by the UNDP, using a theoretical approach designed by Amartya Sen, Sudhir Anand, and other economists sympathetic to idea of human capabilities, most of whom had worked with WIDER See: MC Nussbaum, ‘Public Philosophy and International Feminism’ (1998) 108 Ethics 762, 782. Since 1991, the Reports have ranked States in accordance with the Human Development Index. In more recent years, the Gender-related Development Index (GDI) and the Gender Empowerment Measure (GEM) have been used, in recognition of the gendered hierarchies that persist within models of development. Since 1996 the Capability Poverty Measure has been added. The Human Development Reports and, in particular, the ranking mechanisms used, have led to much debate and commentary. Many are critical of the components that ‘count’ and those that fail to ‘count’ within the Development Index. Others have criticised the weighting mechanisms used. Nonetheless, these Reports and the WIDER project that preceded them have contributed to the recognition that development is a normative concept and that models of development are deeply gendered.

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of ‘central capabilities’.5 These are: Life; Bodily health;6 Bodily integrity; Senses, imagination, thought; Emotions; Practical reason; Affiliation; Other species (Being able to live with concern for and in relation to animals, plants, and the world of nature); Play; Control over one’s environment. (a) Political; (b) Material. Nussbaum intends her list of central capabilities to give rise, not just to urgent claims, but also to justiciable rights-claims. She offers it as the philosophical basis for a set of constitutional principles that governments must adhere to and that citizens have a right to demand respect for. Applying the capabilities approach in this way, she takes the approach much further than Amartya Sen or other development economists working on quality of life questions.7 As a liberal, Nussbaum is careful to distinguish between human capabilities and human functions. This means allowing women to pursue their own conceptions of the good, however constraining a particular life-plan might appear. Pursuing different conceptions of the good life involve changes in human functioning, not in capability. To use Gewirth’s term, the capacity for agency remains intact.8 Feminism has been suspicious of the liberal emphasis on choice.9 Nussbaum, however, takes us much further than the traditional liberal preoccupation with autonomy and choice, introducing the concept of ‘combined capabilities’—internal capabilities combined with suitable external conditions.10 Recognising the importance of material conditions takes us beyond the formal abstractions of much human rights discourse. Many women have equal rights to political participation without having the capability to realise that right. The closer scrutiny advocated by the combined capabilities approach exposes the myth that gender inequalities are somehow the result of different free choices or natural sex differences. As Nussbaum points out in her discussion of prostitution (defined as ‘taking money for bodily services’),11 freedom to choose is not something that flourishes independently of material or social conditions.

5

WHD, above n 1, p 80. Nussbaum includes here reproductive health, citing the definition adopted at the 1994 International Conference on Population and Development: ‘Reproductive health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity, in all matters relating to the reproductive system and its processes.’ Programme of Action of the International Conference on Population and Development, UN Doc A/CONF 171/13, adopted 18 October 1994, cited in WHD, above n 1, p 78. 7 A Sen, ‘Capability and Well-being’ in M Nussbaum and A Sen, (eds), The Quality of Life (Oxford, Clarendon Press, 1993) 30. 8 See: A Gewirth, Human Rights: Essays on Justification and Applications (Chicago, IL, University of Chicago Press, 1982), above ch 2. 9 See, for example, CA MacKinnon, Feminism Unmodified Discourses on Life and Law (Cambridge, MA, Harvard University Press, 1987), discussed above, ch 1. 10 SSJ, above n 1, pp 44–45. 11 SSJ, above n 1, p 276. 6

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While Nussbaum is clearly concerned with the right to live free from poverty, the capabilities approach does not directly address questions of distributive injustice. Nussbaum’s work, particularly her writing on the work of organizations such as the Self-employed Women’s Association (SEWA) in Ahmedabad, India, reveals a strong concern with the elimination of poverty and with socio-economic rights. Nussbaum cites Raz’s vivid example of the ‘hounded woman’, a woman on a desert island who is free to go anywhere on that island, but is constantly pursued by a ‘man-eating animal’.12 The constraints imposed on the ‘hounded woman’ are similar to those imposed on a woman living in poverty. Though she may be free to make choices, those choices do not count for a great deal given that the options available to her are so limited.13 The capabilities approach, however, misses the relational dimension of equality/inequality. Its contribution to our understanding of distributive justice is, therefore, limited. Anne Phillips sums up the problem as follows: For Nussbaum, ‘What matters is not what resources we have [...] and certainly not whether our bundle is the same size as everyone else’s. What matters is that all human being, wherever they are, should be able to develop their capacities for choosing.’14 As the reference to the ‘hounded woman’ might suggest, in Nussbaum’s capabilities approach the discourse of equality is supplanted by the discourse of poverty. Autonomy, rather than equality, becomes the central concern in eliminating poverty. This emphasis on autonomy speaks to a concern about ensuring humane minimum standards rather than to a concern to address income inequality. The list of human capabilities provides useful benchmarks to measure poverty, but not to assess equality. Nussbaum speaks of human flourishing as a political goal. Phillips is correct, however, in pointing out that income inequality is not necessarily challenged by the capabilities approach. While there is a relational dimension to Nussbaum’s concern with the quality of life that we enjoy, she does not taken the additional step of identifying equality as a central goal. Nussbaum’s earlier work with the WIDER institute led to the use of the Human Development Index by UNDP and others to measure quality of life. The HDI has been supplemented by the Gender Development Index and the Gender Empowerment Measure. Both of these indices include a relational gender dimension. Beyond looking at individual human capabilities, they provide a yardstick against which we can measure the differences in the quality of life enjoyed by women and men. To take this further, however, the capabilities approach would need to identify equality as a central goal. Perhaps this would require a thicker conception of the good than a political liberal such as Nussbaum would accept. 12 J Raz, The Morality of Freedom (Oxford, Clarendon Press, 1986) 374, cited in SSJ, above n 1, p 296. 13 SSJ, above n 1, p 296. 14 A Phillips, ‘Feminism and Liberalism Revisited: Has Martha Nussbaum Got It Right?’ (2001) 8(2) Constellations 248, 258.

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B. CHALLENGING THE PUBLIC/PRIVATE DIVIDE

A central concern in Nussbaum’s friendly amendment to liberalism is to redefine the political. Though she draws on Rawlsian political liberalism, she re-defines Rawls’s notion of the political, challenging the division between public and domestic spheres that underpins it. This leads her to question the distinction between reason and emotion that has permeated much Enlightenment thinking about justice and rights. She identifies the capability for affiliation as a central organising capability,15 one that makes the pursuit of all other capabilities ‘truly human.’16 However, though she seeks to restore the role of emotion in moral reasoning, she continues to emphasise the centrality of critical reason. The role of emotion in moral reasoning, she says, must be ‘suitably constrained’.17 Like many liberal thinkers, she continues to view emotion as a potentially destabilising force. Linked with Nussbaum’s continuing emphasis on the role of critical reason is her insistence on the importance of individual autonomy and the separateness of one life from another. She seems concerned that the emotions attaching us to networks of affiliation will threaten this separateness. Again, we see a reluctance to follow through on the relational dimension of the capabilities approach. Though Nussbaum criticises liberalism’s failure to identify affiliation as a central human capability, she, herself, doesn’t succeed in overcoming the binary divide between reason and sentiment or in developing a relational understanding of the human self. While she justly criticises the relational self proposed by Care theorists such as Gilligan and Noddings as too self-sacrificing, she fails to respond to more nuanced feminist reinterpretations of ‘autonomy-in-relation’, such as those proposed by Martha Fineman, Jennifer Nedelsky or Seyla Benhabib.18 Nussbaum is perhaps more successful in challenging other dimensions of the public/private divide. She applies a much more critical evaluation to the domestic sphere and relations within the family than we see in Rawls’s political liberalism. Her basic argument is that the liberal tradition of equal concern and respect must, in all consistency, be extended to relations between women and men in the family. Nussbaum is far more agnostic than most liberal theorists about which affective ties should be included within the basic structure of society and about the role of the family. She argues

15 The capability for affiliation is defined as: ‘Being able to live for and in relation to others [...] and (b) “Having the social bases of self-respect and non-humiliation.’ SSJ, above n 2, p 41. 16 WHD, above n 1, p 83. 17 Ibid, p 250. 18 See: M Fineman, The Autonomy Myth: A Theory of Dependency (New York, NY, New Press, 2003); J Nedelsky, ‘Law, Judgment, and Relational Autonomy’ in J Nedelsky and R Beiner, (eds), Judgment, Imagination and Politics: Theme from Kant and Arendt (Lanham, MD, Rowman & Littlefield, 2001). See: S Benhabib, Situating the Self: Gender, Community and Postmodernism in Contemporary Ethics (Cambridge, Polity Press, 1992).

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that a workable account of the quality of life should make room for women’s collectives and other groups of affiliation among women. Redefining the basic structure in this way takes us beyond a preoccupation with the family, a preoccupation that has sometimes led western feminism to ignore the diverse networks of affiliation amongst women.19 Nussbaum also challenges the divisions between the public and the private that underpin appeals to cultural difference. Her list of central capabilities is ‘open-ended’ and ‘humble’, subject to revision and correction.20 At the same time, it is intended to operate as a set of cross-cultural universals. The anti-universalism that has permeated so much feminist debate has, in her view, damaged the pursuit of gender equality, protecting ‘ancient religious taboos, the luxury of the pampered husband, ill health, ignorance, and death’.21 Ongoing cross-cultural empirical research, she says, highlights the internal tensions and plurality within cultures. It also highlights the common strivings and needs of women and men from different cultural, religious and economic backgrounds. Liberalism, she says, is about preserving spheres of choice. Unlike Rawls, Nussbaum is willing to challenge the demarcation of those spheres and to question whether privatising appeals to cultural difference are shielding gender injustices. She is limited, however, by the methods she adopts and, in particular, by her continuing appeal to the idea of an ‘overlapping consensus’. C. THE LIMITS OF AN OVERLAPPING CONSENSUS

Nussbaum challenges the prevailing consensus on the scope of domestic jurisdiction and the defence of culture, moving beyond the statist conception of international law that underpins Rawls’s political liberalism. However there is a tension in the justificatory strategy that she adopts. At times, she seems reluctant to move beyond the constraints of an existing consensus. She was initially reluctant, for example, to include sexual orientation within her list of the prohibited grounds of discrimination, suggesting that to do so would be premature given the absence of consensus on claims to a right to non-discrimination on the basis of sexual orientation. Her view changed, however, following the release of the feminist film Fire in India and the discussion generated around issues of gender and sexual orientation.22 Nussbuam’s reluctance is surprising. It highlights the potential constraints on feminism in appealing to an overlapping consensus. 19 Above n 4, p 791. See the discussion of women’s movements in Ireland, India and Pakistan, below chs 7–10. 20 SSJ, above n 1, p 40. 21 M Nussbaum, ‘Human Functioning and Social Justice: In Defense of Aristotelian Essentialism’ (1992) 20 Political Theory 202, 204. 22 WHD, above n 1, p 79, n 84.

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These constraints have been particularly evident in India, where attempts to move towards a uniform civil code have consistently been thwarted by the absence of consensus between majority and minority communities. As is evident from the Indian Supreme Court judgment in the Shah Bano case, and the subsequent Government response, this failure has often been at the cost of securing greater equality for women.23 Nussbaum recognises this tension. Ultimately, she says, feminism must rely on an a priori concept of truly human functioning. She seems to recognise the limits of her own methods. However, returning us to an a priori concept of truly human functioning leads to tensions with her own commitment to individual autonomy and choice. The primary source of human worth, she says, is ‘a power of moral choice within humans.’24 Women must be seen, first and foremost, as ‘human centers of choice and freedom.’25 Despite this concern with choice, however, Nussbaum finds herself in a position where she is likely to criticise the choices that most people make.26 This tension is evident also in Nussbaum’s discussion of adaptive preferences.27 Though she is concerned to listen to the voices of women living in poverty and to ground her philosophising in empirical research, she argues that feminism must bring its theories of justice and the good to its fieldwork. She disagrees with the feminist dictum that we must start from women’s experience. Deprivation and intimidation, she says, can corrupt experience, making it a very incomplete guide to what ought to be done.28 As Tagore wrote, ‘To those with low self-regard, neglect does not seem unjust, and so it does not cause them pain.’29 Radical feminists, appealing to a standpoint epistemology, have grappled unsuccessfully with this problem. Nussbaum seeks to resolve it by appealing to a ‘thick vague conception of the human being’.30 The problem, however, is that this insight into the human condition, this ‘thick vague conception’ of the human person, does not translate into a methodology that recognises the importance of free and reasoned deliberation about human rights. In Nussbaum’s later

23 See: Mohammed Ahmed Khan v Shah Bano Begum [1985] AIR SC 945 The Supreme Court’s judgment in favour of granting Shah Bano a right to maintenance beyond the 3 month iddat period following divorce, was subsequently overturned by the 1986 Muslim Women (Protection on Divorce) Act. However, see Danial Latifi v Union of India [2001] AIR SC 3958, discussed below ch 10 in which the Supreme Court reinterprets the 1986 Act so as to accord with its earlier judgment. 24 SSJ, above n 1, p 57. 25 Ibid, p 70. 26 See: A Phillips, above n 14, pp 257–60. Phillips argues that this tension is due to Nussbaum’s failure to identify equality rather than autonomy as liberalism’s central goal. 27 M Nussbaum, ‘Adaptive Preferences and Women’s Options’ in WHD, above n 1, ch 2. 28 M Nussbaum, (1998), above n 4, p 788. 29 R Tagore, ‘Letter from a Wife’ cited in M Nussbaum, WHD, above n 1, p 11. 30 WHD, above n 1.

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work, she gives greater importance to political rights. Recognising that her earlier work neglected these aspects of human functioning, she points to the role of political participation in making well-being human. Citing Amartya Sen, she notes that political rights are important ‘not only for the fulfillment of needs, ... [but] also for the formulation of needs.’31 She emphasises the importance of listening to women speak about their lives in a situation that is free from fear and hierarchical structures.32 However, she doesn’t articulate the institutions or procedures necessary to generate free and reasoned debate. She neither tells us in what forum or through what channels women call for assistance.33 The danger then is that we end up with welfarism and a paternalistic state where welfare and basic needs may be protected, but a life of praxis is not. As Benhabib points out, Aristotelian social democracy, if it is to avoid the dangers of welfarism, must be both social and democratic.34 In Women and Human Development, Nussbaum seems to come closer to recognising the importance of fair procedures and a deliberative model of democracy.35 She emphasises the role played by cross-cultural discussions between women’s groups in assisting her at drawing up the list of human capabilities. Those discussions, she says, exemplified the values of equal dignity, non-hierarchy and non-intimidation.36 Citing Rawls, Nussbaum notes that the process of arriving at a reflective equilibrium is fully inter-subjective. It requires us to take into account the standpoint of the other. However, she refuses to take the next step of moving towards an inter-subjective concept of reason or of recognising that the ideal of an autonomous moral agent is presupposed by those very discussions that she draws on. Discourse ethics, she says, puts things in the wrong order, is too indirect and unreliable.37 It is, perhaps, more reliable, however, than appeals to an overlapping consensus or to an a priori concept of truly human functioning. A failure to recognise the importance of dialogue and negotiation can also be seen in Nussbaum’s essays on Religion and Women’s Human Rights and Judging Other Cultures.38 While her move beyond a Rawlsian deference to domestic cultural claims is welcome, her rhetoric does at times suggest an ‘us–them’ opposition. Most of the examples of harm to women that she cites are drawn from events and practices that take place in Africa and 31 SSJ, n 1, p 45; A Sen, ‘Freedom and Needs’, New Republic, January 10/17, 1994, pp 31–38. 32 M Nussbaum, (1998), above n 4, p 789. 33 See: IM Young, ‘Sex and Social Justice: Book Review’ (2001) 111(4) Ethics 819. 34 See: S Benhabib, ‘Cultural Complexity, Moral Interdependence, and the Global Dialogical Community’ in M Nussbaum and J Glover, (eds), Women, Culture and Development (Oxford, Clarendon Press, 1995) 235. 35 Above, n 1. 36 Ibid, p 151. 37 Ibid, n 1, p 150. 38 See SSJ, above n 1.

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South Asia and that have become over-sensationalised in western feminism.39 These include practices such as female genital mutilation, veiling and dowry murders. The ‘us–them’ opposition is reinforced by constant references to ‘we’ who make judgments on other cultures and ‘they’ whose actions we criticise. There is also a distancing between ‘us’, western liberal feminists, and those who ask for ‘our help’,40 namely, women from the South who appear as passive victims of persecution. This kind of rhetoric has a distancing effect that limits the possibility of successfully negotiating cultural conflicts. It also reinforces the suspicions raised by difference feminists, that claims to universalism mask an origin in the particular experience and perspectives of persons located in privileged positions—those positions may be privileged by masculinity, heterosexuality, whiteness, or by legacies of imperialism. Nussbaum is aware of this anti-universalist critique, and is anxious to avoid adopting the stance of the enlightened outsider. Her methods and rhetoric, however, do little to convince those who remain suspicious of universalist claims. D. CONCLUDING REMARKS

Nussbaum’s defence of universalism and her re-assessment of political liberalism offers much to the project of global feminism. Her contribution to projects such as the UNDP Human Development Index and her constant referencing to empirical data on literacy rates, life expectancy and poverty, anchor her work in a way that guards against the abstractions of much human rights discourse. Ultimately, however, her roots in political liberalism leads to tensions. Perhaps, as Phillips notes, her attempt to marry Aristotle and Rawls is too ambitious. If political liberalism is committed to gender equality—as both Rawls and Nussbaum clearly believe—then it needs to go beyond the search for a legitimating consensus and to take sides in the debate between feminists and cultural conservatives. As Isiaih Berlin put it: ‘Some among the Great Goods cannot live together. That is a conceptual truth. We are doomed to choose, and every choice may entail an irreparable loss.’41 For feminism, there is a limit to the acceptable consequences of pluralism. A commitment to the universalistic discourse of human rights assists us in defining those limits. As we see in political liberalism, abandoning that commitment leads to difficulties for feminism.

39 For a critique of western feminisms’ sensationalisation of the ‘exotic other female’, see: K Engle, ‘Female Subjects of Public International Law: Human Rights and the Exotic Other Female’ (1992) 26 New England Law Review 1509; R Kapur, ‘The Tragedy of Victimization Rhetoric: Resurrecting the “Native” Subject in International/Post-colonial Feminist Legal Politics’ (2002) 15 Harvard Human Rights Journal 2. 40 SSJ, n 1, p 122. 41 I Berlin, The Crooked Timber of Humanity (New York, NY, Knopf, 1991) 13.

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The next chapter explores discourse ethics, focusing, in particular on the work of Seyla Benhabib and her attempt to reconcile feminism with universalism. For Seyla Benhabib, a commitment to universalistic moral theory is indispensable to an emancipatory feminist politics. Though Benhabib recognises ‘the fractured spirit of our times’,42 she refuses to abandon the universalist traditions of practical philosophy, offering instead a postenlightenment defence of the project of modernity and with it, the discourse of human rights. As we have seen, feminism has increasingly distanced itself from moral theories that claim a universal legitimacy, regardless of religious, cultural or social context. From the perspective of difference feminism, universalism represents a denial of difference, an exclusion of voices that fail to conform to a totalising norm. This shift in feminist theory creates considerable tensions, as feminism seeks to negotiate cultural differences while at the same time pursuing an emacipatory agenda. Benhabib continues Nussbaum’s project of returning feminism to the universalist path. However, her roots in discourse ethics offer greater possibilities of reconciling feminism and universalism and of bringing about a feminist transformation of human rights discourse.

42

See: S Benhabib, above, n 18, p 1.

5 Discourse Ethics, Feminism and the Return to the Universal

T

HIS CHAPTER EXAMINES Seyla Benhabib’s defence of universalism and questions whether her discursive concept of justice and rights can bring us beyond the troubled legacies of the Enlightenment.1 Benhabib seeks to reconcile feminism and universalism by offering an alternative to the metaphysical illusions of Enlightenment thinking. Her goal is to situate reason and the moral self more decisively in the contexts of gender and community. In doing so, she begins to address the concerns raised by difference feminisms. Her aim, however, is to do so without yielding to the claims of cultural conservatives and without compromising individual autonomy. In this way, she hopes to avoid the pitfalls that we have seen in much of feminist theory and more recently in political liberalism. As I noted in the Introduction, the negotiation of cultural conflicts is a key test for any defence of universalism. Much of contemporary feminist theory and practice is concerned with negotiating cultural conflicts. A key test for discourse ethics is what it can bring to these negotiations. Benhabib proposes a dual-track approach to cultural conflicts: legal regulation combined with an expanded moral–political dialogue around controversial normative questions.2 Legal regulation is recognised as a necessary constraint on the demands of cultural pluralism. However, at the same time, it is recognised as a last resort and within Benhabib’s model of a just multicultural arrangement, is no more important than ongoing processes of dialogue, negotiation and contestation. Benhabib’s dual track approach avoids the compromises and pitfalls of Rawlsian political liberalism. At the same time, it is more sensitive to difference than the multicultural arrangements proposed by liberals such as Will Kymlicka and more aware of the importance of intercultural

1 S Benhabib, ‘Deliberative Rationality and Models of Democratic Legitimacy’ (1994) 1(1) Constellations 26, 41. 2 See: S Benhabib, The Claims of Culture: Equality and Diversity in the Global Era (Princeton, NJ, Princeton University Press, 2002) ch 5; S Benhabib, ‘Unholy Wars’ (2002) 9(1) Constellations 34, 44; S Benhabib, ‘Cultural Complexity, Moral Interdependence, and the Global Dialogical Community’ in M Nussbaum and J Glover, (eds), Women, Culture and Development (Oxford, Clarendon Press, 1995) 235.

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dialogue than joint governance models such as that proposed by Ayelet Schachar.3 Part one of this chapter explores discourse ethics’ response to the critiques of universalism raised by difference feminisms. Drawing on the feminist critiques explored in chapter 1, I ask whether discourse ethics can reconcile feminism with the universalistic discourse of human rights and provide the critical resources necessary for a truly global feminist movement. The insights of discourse ethics have been drawn on by international lawyers such as Martii Koskienniemi, but feminist reinterpretations of discourse ethics, such as that proposed by Benhabib, have yet to make a significant impact on human rights theory or practice. A. FEMINISM, DISCOURSE ETHICS AND UNIVERSALISM

Much of moral theory has remained within the confines of Enlightenment traditions. Liberal discourses of rights are firmly rooted in these traditions. Benhabib seeks to move universalistic moral theory beyond the limits of Enlightenment philosophy. She tells us to bid adieu to its metaphysical illusions and to re-think our commitment to universalism, addressing three main lines of critique: (1) scepticism towards a legislating reason that claims to articulate the necessary conditions of a moral point of view; (2) the illusion of a disembedded and disembodied subject of reason and; (3) the inability of universalist, legislative reason to deal with the ‘multiplicity of contexts and life-situations’ with which practical reason is always confronted.4 As we have seen in earlier chapters, Gewirth, Rawls and Nussbaum each try to address these critiques, with limited success. Benhabib takes the project of rethinking universalism further. Recognising the shortcomings of Kantian constructivism, she proposes moving towards an interactive universalism, replacing the legislating reason of Enlightenment traditions with an inter-subjective concept of reason and a discursive mode of justification.5 Drawing on Hannah Arendt, Benhabib employs the model of an ongoing moral conversation and offers us the ‘art of enlarged thinking’6 in which the capacity to reverse perspectives and the sensitivity to hear the voice of the other is paramount. The first step in formulating an interactive universalism is to move towards a discursive, communicative concept of rationality and to abandon the belief that reason is a natural disposition of the human mind. This step marks a shift from legislative to ‘interactive rationality.7 It also requires a reformulation of the moral point of view. 3 A Shachar, Multicultural Jurisdictions: Cultural Differences and Women’s Rights (Cambridge, CUP, 2001). 4 See S Benhabib, Situating the Self Gender, Community and Postmodernism in Contemporary Ethics (Cambridge, Polity Press, 1992) 3. 5 Ibid, p 6. 6 Ibid, pp 8–9. 7 Ibid, p 6.

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For Benhabib, the moral point of view articulates a certain stage in the development of linguistically socialised human beings. It is that stage at which a disjunction emerges, for individuals and collectivities, between the moral ought and social validity or acceptability. This is the ‘postconventional Sittlichkeit’, a moral point of view that is situated within the community but is not constrained by the ‘parish boundaries’.8 Responding to critics of Habermas’s excessive rationalism, Benhabib argues that what is important in the process of dialogue is not that the general interest is discovered but rather that collective decisions are reached through procedures that are radically open and fair to all. The constraints within which any practical discourse take place are presupposed and underpin practices of discursive argumentation. These constraints are to be found in what Habermas terms, the ‘universal and necessary communicative presuppositions of argumentative speech’.9 Benhabib specificies these presuppositions as the principles of universal moral respect and egalitarian reciprocity.10 The precise scope and meaning of these principles is open to challenge. However, as they provide us with the pragmatic rules necessary to keep the moral conversation going, they cannot be suspended altogether. The kinds of compromises on equality that we see in Rawlsian political liberalism are avoided by the requirement of adherence to such rules. Importantly for feminism, this allows for attention to context but does not permit the kind of gendered compromises that were evident in Rawls’s rush to placate communitarian critics. The shift towards an interactive rationality is the first step towards rethinking universalism. If this shift is to avoid the abstractions of deliberative models such as the ‘veil of ignorance’, the generalized others of Rawlsian dialogues must be replaced by concrete others, by embodied human selves. A second step in rethinking universalism, therefore, involves abandoning the illusion of a disembedded and disembodied subject of reason. Rights discourse has been associated with the isolated, atomistic self of liberal political theory. Benhabib returns to the idea of a relational self, though she is concerned to avoid the idealisation of self-sacrificing practices that we see in feminist ethics of Care. Drawing on Jennifer Nedelsky’s idea of ‘autonomy-in-relation’,11 she invokes a self that is firmly situated in the context of gender and community but that is nonetheless autonomous. Rather than working with the paradigmatic ‘lonely geometrician’,12 she assumes that the subject of reason is a human infant who becomes a self through interaction 8

See: S Lovibond, ‘Feminism and Postmodernism’ (1989) 178 New Left Review 5. See J Habermas, ‘Discourse Ethics: Notes on a Program of Philosophical Justification’ in J Habermas, Moral Consciousness and Communicative Action (Cambridge, Polity Press, 1990) Notes: Translated from the German, 43–116, 86. 10 Above n 4, p 29. 11 J Nedelsky, ‘Law, Judgment, and Relational Autonomy’ in J Nedelsky and R Beiner, (eds), Judgment, Imagination and Politics: Themes from Kant and Arendt (Lanham, MD, Rowman & Littlefield, 2001). 12 S Benhabib (1992), above n 4, p 50. 9

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in a human community. To be and to become a human self, she says, is to insert oneself into webs of interlocking narratives, narratives that link us with gendered identities, families, nations. Importantly for the pursuit of an emancipatory politics, Benhabib argues that agency consists in our capacity to weave out of those narratives our individual life stories. Those life stories will be influenced by the master narratives of family structures and gender roles into which each individual is thrown. However, those narratives cannot define or determine an individual’s life story. This dialogic understanding of the self underpins Benhabib’s approach to the politics of multiculturalism and to the challenges raised in negotiating cultural conflicts. In responding to cultural claims, communitarian multiculturalists, such as Bikhu Parekh, proceed from an overly socialised vision of the self in which each human self is posessed of a unique cultural centre determined by his/her cultural location. This vision of the self, of course, ignores the fact that most individual identities are defined through various collective affinities and through many different narratives. Recognising this internal complexity also impacts on our understanding of cultures. The strong multiculturalist is working with a vision of cultures as organic and hermetically sealed wholes. Benhabib, by contrast, views cultures as internally riven and essentially contested narratives.13 Identity then becomes, not a cultural given or an inherited attribute, but the ‘unique and fragile achievement of selves in weaving together conflicting narratives and allegiances into a unique life history.’14 Understanding the human self, in this way, allows for more dynamic definitions of both individual and group identity. This understanding of identity as dynamic, complex and individually constituted, in turn, opens up greater possibilities for the negotiation of cultural conflicts. Benhabib’s relational view of the self also helps to break down the gendered divisions between public and private spheres that persist within Habermasian discourse ethics and that continue to attract feminist criticism. Both Arendt and Habermas maintain the age-old distinction between the public spheres of the polity and the economy on the one hand and the familial–domestic realm on the other. Arendt rigidly defines the public sphere in opposition to the private sphere while Habermas employs a series of binary oppositions that serve to exclude from public discourse many issues of central concern to women. He distinguishes between justice and the good life and between ‘generalizable interests’ and ‘private need interpretations’.15 Benhabib rejects these models of the public sphere,16 arguing that the female experience has been more attuned to the standpoint of the 13 14 15 16

S Benhabib (2002), above n 2, p 2xi. Ibid, p 16. Ibid, p 13. Above n 4, pp 89–120.

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concrete other and to questions of moral judgment in general.17 In a sense, she says, for women, ‘the art of the particular has been their domain’.18 Discourse ethics has been criticised for its excessive proceduralism. The Hegelian critique argues that adherence to formal procedures cannot yield any determinate test of the rightness of maxims. If any concrete maxims of action follow from the ongoing moral conversation, it is only because other unidentified premises have been smuggled into the argument. Within Benhabib’s model, however, the universalisability procedure is no longer a purely formal test of non-contradiction. It involves a reversing of perspectives and a willingness to reason from the other’s point of view. It is a test of communicative agreement, a search for what is mutually acceptable under conditions in which equal rights to participate in the conversation are guaranteed. The difference between this dialogic procedure and that envisaged by Rawls is that the participants in Benhabib’s moral conversation are not hiding behind a veil of ignorance. Each participant in the conversation is a concrete, embodied human self. Benhabib’s moral conversation is also more inclusive than the dialogic procedure envisaged by Habermas. Employing a Hegelian locution, she argues that moral life encompasses much more than relationships between the ‘right-bearing generalized others’.19 As a result, her ongoing moral conversation allows practical discourses to take into account the concrete particulars of women’s daily lives—particulars that are excluded by the binary divisions that persist within Habermas’s discourse ethics. The third step in rethinking universalism requires greater attention to context. The abstractions of universalism have historically denied the signficance of social and cultural contexts. In turn, such denials have led to a failure to take account of differences—differences that may be rooted in gender, in religion, culture or class. Within legal theory rights discourse stands accused of being one of the main tools employed to abstract from concrete social and cultural contexts. Fem-crits have argued that this abstraction from context not only distorts the parameters of debate, it also reduces the transformative potential of feminist arguments.20 Benhabib is anxious to avoid the pitfalls of such abstractions. At the same time, she is aware that contextual considerations do not always serve as benign reminders of difference.21 She recognises the dangers of situated judgment

17 S Benhabib, ‘The Generalised and the Concrete Other: The Kohlberg-Gilligan Controversy and Feminist Theory’ in S Benhabib and D Cornell, (eds), Feminism as Critique: On the Politics of Gender (Minneapolis, MN, University of Minnesota Press, 1986) 77. 18 S Benhabib, above n 4, p 14. 19 Above n 1, p 11. 20 See generally: F Olsen, ‘Statutory Rape: A Feminist Critique of Rights Analysis’ (1984) 62 Texas L Rev 387. 21 See: A Bayefsky, ‘Cultural Sovereignty, Relativism and International Human Rights: New Excuses for Old Strategies’ (1996) 9(1) Ratio Juris 42.

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and appeals to communal values and insists upon the right to challenge inherited traditions in the name of universal principles and as yet ‘undiscovered communities.’22 This insistence distinguishes her search for communicative agreement from the integrationist thinking of communitarians such as McIntyre and Sandel.23 While integrationist thinkers seek to recreate community by reclaiming fundamental values and principles, discourse ethics envisage a community as emerging via participatory politics in a democratic polity. The deliberative model of democracy values community but only those forms of community that all human persons could in good conscience affirm. Thus, the requirements of equal moral respect and egalitarian reciprocity define the limits of reasonable pluralism and set constraints on any appeal to communal values or to contextual considerations. These limits are safeguarded through the institutionalisation of human rights norms, thereby providing us with a framework within which conflicting cultural claims can be negotiated. The attempt to negotiate such conflicts brings us to what is perhaps the most significant challenge facing any attempt to reconcile difference feminisms and the universalist discourse of human rights—how to negotiate conflicting cultural claims that arise between states and within states, within a framework of rights. The rethinking of universalism that underlies discourse ethics opens up the possibility of reclaiming the universalist discourse of rights for the pursuit of a global feminism. At the level of international human rights law, the context—sensitivity of discourse ethics allows for the cultural mediation of human rights norms. At the same time, however, the methodology of discourse ethics and the constraints imposed by requirements of egalitarian reciprocity and universal moral respect, offer important resources for feminism in negotiating conflicting cultural claims. B. DISCOURSE ETHICS, HUMAN RIGHTS AND THE COSMOPOLITAN ORDER

International human rights law is facing a legitimation crisis. Attempts to enforce international human rights treaties are accused of human rights fundamentalism—of exporting western values under the guise of international law. Western liberalism, Homi Bhabha says, is presented as a salvage operation, ‘if not salvation itself’.24 Against this background, human rights law lacks the legitimacy necessary for effective enforcement. It becomes all too easy for states to opt out, to dismiss international human rights law as 22

S Benhabib (1995), above n 2, p 8. See: MJ Sandel, Liberalism and the Limits of Justice (Cambridge, CUP, 1982); MJ Sandel, (ed), Liberalism and its Critics (Oxford, Blackwell, 1984); A MacIntyre, After Virtue: A Study in Moral Theory (London, Duckworth, 1981). 24 HK Bhabha, ‘Liberalism’s Sacred Cow’ in S Okin, Is Multiculturalism Bad for Women? (Princeton, NJ, Princeton University Press, 1999) 79, 83. 23

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reflecting only the concerns and interests of a limited few. This leads to difficulties, in particular, for the pursuit of gender equality as states raise the ‘defence of culture’ to deny the universal legitimacy of women’s human rights claims.25 Benhabib’s deliberative model of democracy, applied to international law, attempts to address this problem of this legitimation crisis. She proposes a dual-track approach to the problem of conflicting cultural claims, combining legal regulation with an expanded moral–political dialogue. Legal regulation is viewed as a last resort. Its role is to define the limits of reasonable pluralism and it does so with reference to the core moral principles of equal moral respect and egalitarian reciprocity. Benhabib applies the dual-track approach primarily at the level of the nation-state. However, she also discusses the role of international law and the international community in responding to the challenges of cultural complexity and moral interdependence. Drawing on Kant’s idea of the republican constitution and its application at the international level through the ‘cosmopolitan point of view’, she proposes a model of international law-making that is premised on a vision of a ‘global dialogical moral community.’26 This dialogical community is rooted in a commitment to cosmopolitanism, understood as an ethical point of view from which the negotiation of difference is both a pragmatic and a moral imperative. The term cosmopolitanism can also refer to a form of political organisation.27 Kant, for examle, draws on the cosmopolitan point of view to propose the idea of a world government.28 In the work of both Habermas and Benhabib, however, we see a concern to avoid the ‘soulless despotism’ of a world government. Importantly for difference feminisms, Benhabib recognises the need to nurture local attachments and to acknowledge the significance of cultural membership. She argues that states should play a role in nurturing such attachments, within the limits defined by the core moral principles of equal moral respect and egalitarian reciprocity. Cosmopolitanism limits the role of the state in other ways. Along with Habermas, Benhabib proposes a more radical view of the cosmopolitan order than that envisaged by Kant. For Kant, the bounds of national sovereignty were inviolable. His cosmopolitan order was a federation of states, not of world citizens. This state-centred conception of the international community limited the scope of international law—or ‘cosmopolitan law’ to borrow Habermas’s term. This limitation was clearly inconsistent with Kant’s commitment to the overriding autonomy of the individual citizen. Properly understood, the idea of a cosmopolitan law requires us to re-think our understanding of international law, its roles, functions and its normative 25

See the debates surrounding reservations to human rights treaties, discussed in below ch 6. S Benabib (1995), above n 2, p 253. 27 S Benhabib (1995), above n 2, p 183. 28 J Bohman and M Lutz-Bachmann, (eds), Perpetual Peace: Essays on Kant’s Cosmopolitan Ideal (Boston, MA, MIT Press, 1997). 26

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basis. Following through on a commitment to the autonomy of the individual citizen, requires a shift from a state-centred conception of international law (Völkrecht) to a cosmopolitan law (Weltbürgerrecht), in which the over-riding autonomy of the individual citizen is recognised. The ‘cosmopolitan law’, therefore, simultaneously establishes each individual as a world citizen and as citizen of a state. The individual state is then transformed into a ‘mere agency’ for the protection of the rights of individual citizens.29 Once we begin to think of the state in this way, the old defences of domestic jurisdiction, or religious–cultural differences and of state sovereignty, can no longer claim a firm foundation in international law. At present, the cosmopolitan aspirations of international law are halfhearted at best. The UN continues to display the features of a ‘permanent congress of states’.30 Hilary Charlesworth, Frances Olsen, Karen Knop and others have criticised this state-centred view of international law and the division between public and private spheres that underpins it.31 The defence of domestic jurisdiction persists, now reappearing as the defence of culture, or the assertion of religious–cultural difference. Feminism has exposed the gendered nature of such claims, and the attempts to privatise the pursuit of gender equality that underlie them. Assertions of privacy and of state sovereignty are made with little or no normative justification advanced to supported the demarcation of the private. The advent of international human rights law and the growth of the international human rights movement have begun to pierce the veil of state sovereignty. A greater emphasis on individual sovereignty signals a shift towards a vision of the UN as a cosmopolitan democracy.32 That shift, however, is constantly threatened by the stratification of world society, by growing impoverishment, unilateralism and a regression to nationalism.33 The dual-track approach underpinning Benhabib’s vision of a cosmopolitan law, recognises the need to create a sense of belonging within the international community, if the legitimation crisis of international law is to be overcome. Legal 29 J Habermas, ‘Learning By Disaster? A Diagnostic Look Back On the Short 20th Century’ (1998) 5(3) Constellations 307. 30 J Habermas, Postnational Constellation: Political Essays (Cambridge, Polity Press, 2001) 186. 31 See: F Olsen, ‘International Law: Feminist Critiques of the Public/Private Distinction’ in DG Dallmeyer, (ed), Reconceiving Reality: Women and International Law (Washington DC, American Society of International Law, 1993) 157; K Engle, ‘After the Collapse of the Public/Private Distinction: Strategizing Women’s Rights’ in DG Dallmeyer, (ed), Reconceiving Reality: Women and International Law (Washington DC, American Society of International Law, 1993) 143; TE Higgins, ‘Reviving the Public/Private Distinction in Feminist Theorising’ (2000) 75 Chicago-Kent L Rev 847; H Charlesworth and C Chinkin, The Boundaries of International Law: A Feminist Analysis (Manchester, MUP, 2000); D Buss and A Manji, (eds), International Law (Oxford, Hart Publishing, 1993). 32 The shift from state sovereignty to individual sovereignty is discussed by Kofi Annan, UN Secretary General in K Annan, ‘Two Concepts of Sovereignty’ The Economist, 18 September 1999. 33 J Habermas, above n 30, p 183.

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regulation asserting the primacy of human rights norms will not be enough. At a national level, the key features of the dual-track approach involve direct and indirect state intervention in cultural conflicts, including legal regulation of such disputes, on the one hand, and ongoing dialogue and contestation in the civil public sphere, on the other.34 At the level of international law, this dual track approach requires the institutionalisation of human rights norms, and a more participatory model of international lawmaking—one that allows free and reasoned deliberation among states and within states. The beginnings of such an approach can be seen in the methods adopted by UN human rights treaty based bodies, which persist in the process of ‘constructive dialogue’, even with the most recalcitrant states.35 However, though treaty-based bodies such as the CEDAW committee, may engage in an ongoing dialogue, the primacy of human rights norms are not compromised. Indeed, bodies such as the CEDAW committee have become increasingly insistent on the universality of human rights norms.36 Underpinning this dual-track approach is recognition of the link between human rights and popular sovereignty. Legal regulation, specifying constitutional essentials that trump other legal claims, is combined with an expanded moral–political dialogue in which all have equal rights to participate. Such an expanded moral–political dialogue is necessary if we are to do justice to the ‘complexities of cross-cultural communication, multiple identities and planetary interdependence.’37 Difference feminism has highlighted the need to recognise such complexities. Universalistic discourses of rights have all too often ignored or trampled upon religious, cultural, socioeconomic differences and inequalities. Correcting these failings, however, should not lead feminism to abandon universalism. Creating the conditions necessary for a global dialogical community requires a universalist outlook, one that is sensitive to contextual considerations but does not fall prey to the ‘poor sociology’ of cultural relativism.38 All too often, cultures are viewed as hermetic and sealed wholes. While this may serve the interests of nation-building, ultimately it is an appeal only to ‘imagined communities.’39 Assertions of cultural difference falsely privilege the homogeneity of cultures and one axis of self-definition and identification—the ethnic one. The dual-track approach, by specifying the conditions necessary for a participatory dialogue, enables dissenting voices to come forward and requires that 34

S Benhabib (2002), above n 2, p 115. See generally: P Alston and J Crawford, (eds), The Future of UN Human Rights Monitoring (Cambridge, CUP, 2000). 36 See further below, ch 6. 37 S Benhabib (1995), above n 2, p 244. 38 Ibid, p 240. 39 Ibid, p 243. Below, chs 7–10 examine the appeals to culture that have served the interests of nation-building in the post-colonial states of Ireland, India and Pakistan. As we shall see, the pursuit of gender equality is frequently sacrificed in the interests of a unifying national ideal. 35

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conditions be put in place to allow such voices to be heard, thus exposing the myth of communities as organic, unified entities. The discursive model of international law can be seen in Martti Koskeniemmi’s work. Koskeniemmi speaks of international law as ‘a conversation about the right thing to do in particular circumstances.’40 However, he combines this emphasis on dialogic practices with a postmodern commitment to instability, uncertainty and a constant questioning. From this perspective, he says, international law has ‘no given focus or centre from which it may not deviate without ceasing to be itself.’41 If dialogic practices are to be transformative, however, then a commitment to democratic procedures cannot be an optional or a contingent element of such practices. Without a commitment to such procedures, we end up with the kind of weak pragmatism of Richard Rorty, who concludes: ‘Among human beings there are those who can be actual or potential participants with me in a community of conversation and those who are not and may never be.’42 For women who have often been denied the right to participate in a dialogic community, this conclusion yields too much to the status quo. A free-floating conversation, with no given focus or centre, cannot even begin to address the complex forms of structural disadvantage encountered by women all over the world.43 It has little to say, for example, on how socio-economic inequalities are to be overcome. There is no moral or practical imperative to developing inclusive democratic procedures, no imperative to transform the practice of international law. Much of our discussion of the dual-track approach so far has concerned the problem of negotiating cultural differences. However, the link between human rights and popular sovereignty also brings to the fore the question of socio-economic inequalities and the often neglected ‘politics of redistribution’. Habermas argues that domination consists in suppressing the voices of oppressed groups, in denying access to the conditions necessary for the exercise of political and civic autonomy.44 Those conditions, of course, require more than the formal guarantees provided by civil and political rights. The liberal–legal paradigm assumed that social justice could be realized by delimiting spheres of individual freedom. The objection to this is obvious: ‘if the free capacity to have and acquire is supposed to guarantee social justice, then an equality in legal capacity must exist.’45 Inequalities in economic power and living conditions mean that the material conditions 40 M Koskenniemi, ‘International Law in a Post-realist Era’ (1995) 16 Australian Yearbook of International Law 1, 17. 41 Ibid. 42 R Rorty, ‘Solidarity or Objectivity’ in J Rajchman and C West, (eds), Post-analytic Philosophy (Columbia, NY, Columbia University Press, 1985) 9. 43 This point is made quite forcefully in H Charlesworth and C Chinkin (2000), above n 31. 44 J Habermas, Between Facts and Norms Contribution to a Discourse Theory of Law and Democracy (Cambridge, MA, MIT Press, 1996) 423. 45 Ibid, p 18.

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necessary for such equality do not exist. Resolving this tension between facticity and normativity requires the recognition and effective enforcement of economic and social rights—the so-called ‘other half of the human rights bill’.46 Feminists have been justifiably critical of the neglect of economic and social rights within human rights law. As concerns with gender equality have been increasingly mainstreamed into the institutional structures of international human rights law, feminists have begun to question the neoliberal economics that continues to dominate international politics and to question what exactly feminism is being mainstreamed into. How transformative are feminist critiques of international law? Ultimately are feminist international lawyers achieving anything more than ‘adding women into’ existing structures and institutions? Karen Engle questions how willing Western and elite Third World women are, in fact, to challenge the material bases of women’s oppression.47 While feminist lawyers working within domestic legal systems have drawn on liberal or socialist feminisms, depending on their politics, feminist international law remains uncertain, she argues, about its politics. This theme is also taken up by Fiona Beveridge, who criticizes the failure to mainstream gender equality issues into international trade law, but also questions whether the very goals and politics of institutions such as the WTO are antithetical to a feminist concern with distributive justice.48 As we saw in earlier chapters, both Rawls and Gewirth recognise the centrality of economic and social rights to the theory and practice of human rights. Martha Nussbaum includes the capacity for self-sufficiency in her list of central human capabilities and recognises the need for protection of economic and social rights, even accepting the legitimacy of claims to property rights. With the rise of identity politics, however, questions of distributive justice have been marginalised. The politics of recognition has replaced the politics of redistribution as a central preoccupation within feminist thinking. This replacement reinforces the danger of exoticising the ‘Other’ female,49 of failing to address the material bases of inequalities that transgress the boundaries of culture or tradition. Discourse ethics has attempted to combine the politics of redistribution and recognition. Benhabib argues that the goal of a democracy is to secure legitimacy, economic welfare and a 46 B Stark, ‘The Other Half of the International Bill of Rights as a Postmodern Feminist Text’ in DG Dallmeyer, (ed), Reconceiving Reality: Women and International Law (Washington DC, American Society of International Law, 1993) 19. 47 K Engle, ‘International Human Rights and Feminisms: When Discourses Keep Meeting’ in D Buss and A Manji, International Law: Modern Feminist Perspectives (Oxford, Hart Publishing, 2005) 47. 48 F Beveridge, ‘Feminist Perspectives in International Economic Law’ in D Buss and A Manji, (eds), International Law: Modern Feminist Perspectives (Oxford, Hart Publishing, 2005) 173. 49 See: K Engle, ‘Female Subjects of Public International Law: Human Rights and the Exotic Other Female’ (1992) 26 New England L Rev 1509.

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meaningful sense of collective identity. Declining standards of living and growing impoverishment, she argues, limit the possibility of achieving a well-functioning democratic society.50 In responding to social and economic inequalities, however, we need to avoid the pitfalls of the welfarist paradigm—where material well-being is secured only by becoming a client of the welfare state. This is where the institutions and procedures of a deliberative democracy come in. By guaranteeing effective rights to participation in the practice of human rights law, they seek to guard against the ‘overgeneralised classifications’ that have for so long limited the transformative potential of rights discourse. Welfarist and liberal discourses of rights failed to recognise the importance of participation in the practice of human rights law. They assumed that gender equality could be achieved within existing institutional frameworks and within a politics dominated and defined by men.51 By emphasising the importance of fair procedures and participation in the practice of legislation, the deliberative model of democracy avoids the spectre of administered masses. The realization of basic rights becomes a process, one that involves free and reasoned deliberation amongst individuals, viewed as moral and political equals.52 While this conclusion may seem optimistic or even naive, discourse ethics would seem to offer a better starting point than the welfarist or formal equality models that have prevailed to date. C. NEGOTIATING JUST MULTICULTURAL ARRANGEMENTS

Cosmopolitanism and the dual-track approach have implications for how we create just multicultural arrangements within states. Feminism has struggled with the politics of multiculturalism, concerned, on the one hand, to recognise the significance of religious, cultural and other differences, and, on the other hand, reluctant to yield to claims that seek to privatise the pursuit of gender equality. As we saw with Rawlsian political liberalism, the accommodation of religious differences risks subordinating gender equality to communal claims. Discourse ethics attempts to create what Habermas has described as ‘difference-sensitive’ models of inclusion—models of inclusion that draw on a commitment to universal norms, while at the same time recognising the importance of religious, cultural and other differences. In The Claims of Culture,53 Benhabib explores the feminism/multiculturalism debate, focusing, in particular, on multicultural disputes that touch on the roles and status ascribed to women and children. These disputes reveal the gendered divisions between the public and the private that continue to surface in the assertion of cultural claims. Cultural differences 50 51 52 53

S Benhabib (1994), above n 1. Ibid, p 419. See: J Habermas (1996), above n 44, pp 425–26. Above n 2.

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are accommodated by reinforcing traditional liberal divisions between the public and the private. As Benhabib points out, the ‘rifts of intercultural difference are most deeply felt along the boundaries demarcating the public from the private sphere.’54 In place of this ‘defensive liberalism’,55 the dualtrack approach is intended to do justice both to women’s aspirations for equality and freedom and to the legitimate plurality of human cultures. The core moral principles of equal moral respect and egalitarian reciprocity define the limits of reasonable pluralism and provide the parameters within which just multicultural arrangements can develop. Building on these core moral principles, Benhabib sets out three key tests that any multicultural arrangement must satisfy. These are: (a) Egalitarian reciprocity; (b) Voluntary self-ascription; (c) Freedom of exit and association.56 The first, egalitarian reciprocity, requires that members of minority communities should not be granted lesser civil, political, economic and cultural rights simply because of their membership status. Any other arrangement, serves only to shield inequalities within groups, yielding to patriarchal claims and the demands of cultural conservatives. The second requirement, voluntary selfascription, recognises the importance of individual autonomy. An individual’s group membership must permit the most extensive form of self-ascription and self-identification to ensure the priority of individual autonomy. Self-ascription may often be contested, leading potentially to a denial of one’s right to membership—as in the Sandra Lovelace case in Canada57—or conversely to a denial of one’s right to ‘opt out’—as in the application of Muslim Personal Law to Muslim women in India, who had sought to enforce the general provisions of the Criminal Procedure Code, regardless of their religious affiliation.58 This leads to Benhabib’s third and final requirement, that of freedom of exit and association. Again, the protection of individual autonomy requires recognition of the right to exit and to disassociate from the group. Of course, exit may bring with it a loss of certain privileges. Such loss, however, may be subject to legal regulation, and, in particular, to the requirement of non-discrimination. Without such regulation, we end up with the kind of discrimination evident in cases such as Santa Clara Pueblo v Martinez,59 where a Santa Clara court upheld an ordinance 54

S Benhabib (1992), above n 4, p 83. See: S Benhabib (2002), above n 2, p 101. 56 Ibid, p 130. 57 An example of such a denial can be seen in Lovelace v Canada, Communication No 24/1977, GAOR, 36th Sess, Supp No 40, UN Doc A/36/40 (1981) 166 (merits). For analyses of the UN Human Rights Committee’s decision, see: K Knop, Diversity and Self-determination in International Law (Cambridge, CUP, 2002) 358. 58 See further below ch 10. 59 Santa Clara Pueblo v Martinez (1978) 98 US 1670. This ruling upheld a Santa Clara ordinance granting member status to the children of men who married outside of the tribe while excluding the children of women who did so. The children of Julia Martinez, a Pueblo woman who married a Navajo man, were prevented from gaining title to her Pueblo-administered public housing. 55

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granting member status to the children of men marrying outside of the Pueblo, while excluding the children of women who did so.60 The extent to which the politics of multiculturalism may lead to a ‘trafficking in women’ was evident in the Sandra Lovelace case before the UN Human Rights Committee. On marrying a non-indian, Sandra Lovelace ceased to be a member of the Tobique Band, and by the application of the 1970 Indian Act, she also lost her status as a Maliseet Indian.61 This loss of status led to a denial of her right to live on a reserve and to access federal assistance programmes that were restricted to those with Indian status. No such consequences followed on the marriage of an Indian man to a non-indian woman. Lovelace petitioned the UN Human Rights Committee, challenging Canada’s compliance with the International Covenant on Civil and Political Rights, arguing that the Indian Act denied both her right to equality before the law (Article 26) and her right to partake of her culture in community with others (Article 27). However, because she had lost her Indian status before the Covenant and First Optional Protocol came into effect in Canada on 19 August 1976, the Human Rights Committee declined to consider whether the Covenant’s guarantees of non-discrimination on grounds of sex had been violated.62 The Committee’s reasoning turned, instead, on the scope of Article 27 of the Covenant and the continuing denial of Lovelace’s right to enjoy her culture in community with others. In her submissions to the Committee, Lovelace challenged the Canadian Government’s claim to have followed patrilineal Indian traditions in legislating for Indian status.63

60 The enactment of the Muslim Women (Protection on Divorce) Act in India in response to the Shah Bano judgment which allowed Muslim women to seek the protection of general laws (rather than those applicable only to the Muslim community), can be seen as another example. See below, ch 9. 61 §12(1)(b) of the Indian Act, RSC 1970 C I–6. §12(1)(b) read as follows: ‘12.(1) The following persons are not entitled to be registered [as Indians], namely ... (b) a woman who has married a person who is not an Indian’. In Canada AG v Lavell [1974] SCR 1349, the Canadian Supreme Court found that §12(1)(b) did not violate the equality guarantee set out in the Canadian Bill of Rights. In a dissenting judgment, Justice Laskin described the impact of the Act as ‘statutory banishment.’ Ibid, p 1386. The Attorney General’s position was supported by the majority of indigenous organisations. The Lavell judgment led to the formation of the Native Women’s Association of Canada. See: K Knop, above n 57, 365. 62 Above n 57, para 18. In her communication, Lovelace claimed to be a victim of a violation of the rights guaranteed in Arts 2(1), 3, 23(1) and (4), 26 and 27 of the ICCPR On the alleged violation of Art 23, the Committee held that the rights aimed at protecting family life and children were only indirectly at stake and, therefore, there was no need to consider the arguments concerning Art 23 (ibid). In her analysis of the Lovelace case, Anne Bayefsky argues that this finding was mistaken. The Committee, she says, should have focused on the continuing effect of the discriminatory legislation and avoided the temporal difficulties. See: A Bayefsky, ‘The Human Rights Committee and the Case of Sandra Lovelace’ (1982) 20 Canadian Yearbook of International Law 244. 63 Lovelace v Canada (merits), above n 57, p 167. For a discussion of the Lovelace case in the context of self-determination, see: K Knop, above n 57, pp 358–72.

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Although the Canadian Government’s position was supported by the majority of indigenous organisations in Canada, Lovelace argued that Maliseet society was, in fact, matrilineal. The matrilineal nature of Maliseet society, however, had been distorted and forgotten through the experience of colonialism. As Knop argues, the Indian Act legislated ‘not indigenous custom, but European patriarchy.’64 Lovelace’s arguments combined an insider methodology, appealing to the possibilities of resistance within Maliseet traditions, with an appeal to the international norm of non-discrimination protected by the Covenant. The Committee concluded that Lovelace’s rights under Article 27 were violated by the Indian Act. In arriving at this conclusion they emphasised Lovelace’s cultural attachment to the Maliseet band. Ultimately, the Committee held that the rights of persons belonging to minorities, as protected under Article 27 of the Covenant, must be interpreted in the light of other provisions, including the right to equality between women and men as protected by Articles 2, 3 and 26 of the ICCPR.65 The denial of Lovelace’s status was not reasonably or objectively justifiable and was not, in the Committee’s view, necessary to protect the continued viability and welfare of the minority community as a whole. If it were necessary, it is not clear from the Committee’s findings whether the discriminatory element of the Act would still have been fatal. Given the absolute nature of the restriction imposed it is unlikely to have survived the reasonableness test.66 The Human Rights Committee’s discussion of minority rights highlights 64 K Knop, ibid, p 364. See also above n 57, discussing a similar argument made with regard to the Shuswap Nation in British Columbia in the case of RL v Canada, Communication No 359/1989, GAOR, 47th Session, Supp No 40, UN Doc A/47/40 (1994) 358, 358–59. 65 Above n 57, paras 16–17. For information on Canada’s response to the views of the Human Rights Committee, see: Sandra Lovelace v Canada, Communication No 24/1977 (6 June 1983), UN Doc Supp No 40 (A/38/40) (1983) 249 (information from Canada on measures taken). Following on from the decision of the Human Rights Committee, Bill C–31 was enacted in 1985, amending the Indian Act, so as to bring it into conformity both with the ICCPR and the Canadian Charter of Fundamental Rights and Freedoms. See: Canada, Indian Affairs, The elimination of Sex Discrimination from the Indian Act (Ottawa, Department of Indian Affairs, 1982 v) 2. For a discussion of the issues related to Bill C–31 from the perspective of reinstated women, see: The Tobique Women’s Group and J Silman, (ed), Enough is Enough: Aboriginal Women Speak Out (Toronto, Ont, Women’s Press, 1988). Canada’s response to the views of the Human Rights Committee reflects a concern both to maintain a sense of belonging amongst aboriginal peoples of Canada and to eliminate sex discrimination. Bill C–31 not only brought the Indian Act into conformity with the guarantees of sex equality in the Canadian Charter of Fundamental Rights and Freedoms, it also introduced measures to increase the autonomy of Indian bands. Part IV of the Constitution Act, 1982, entitled ‘Constitutional Conference’, requires Canada to convene a constitutional conference on matters affecting native peoples, thus ensuring the participation of affected groups in the process of reform. See generally, Department of Indian Affairs and Northern Development, The Impacts of the 1985 Amendments to the Indian Act (Bill C–31) (Ottowa, 1990) http://www.abopeoples.org/programs/c–31.html. 66 In Kitok v Sweden, Communication No 197/1985, GAOR, 43rd Session, Supp No 40, UN Doc A/43/40 (1988) 221, the Human Rights Committee upheld a restriction on the right to reindeer-herding for the Sami population of Sweden. The restriction was found necessary to protect scarce resources and did not lead to a denial of Sami status.

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an important gender dimension that is often ignored by advocates of multiculturalism, that is, that Lovelace’s right to cultural membership and to enjoy her culture in community with others was denied by the application of discriminatory laws. Lovelace’s self-determination, her definition of her ‘minority self’, to borrow Knop’s term, was denied by the codification of a patrilineal tradition in federal legislation. Benhabib’s key principles cannot accommodate communitarian claims that deny the priority of individual autonomy. Her dual-track model is, therefore, open to the kinds of criticisms that are targeted at Will Kymlicka’s model of multicultural citizenship, that is, it fails to cast off the traditions of liberal democratic societies.67 However, denying the priority of individual autonomy leaves women vulnerable to the unending claims of family, community, nation. As Benhabib and Cornell have pointed out, ‘situated females often find it impossible to recognise their true selves amidst the constitutive roles that attach to their person.’68 The principles outlined by Benhabib are designed to avoid the so-called ‘paradox of multicultural vulnerability’, where women become the bearers of culture, the repository of traditions.69 All too often, multicultural arrangements lead to a kind of ‘traffic in women’, where the men of majority and minority communities signal their respect for difference by shielding the patriarchal claims of the other. The requirements imposed by the dual-track model deny the legitimacy of such ‘trafficking’. Legal regulation or the assertion of universal norms is unlikely, however, to overcome the tensions between feminism and multicultural politics. Susan Okin has famously concluded that multiculturalism is ‘bad for women’. Drawing on her roots in Rawlsian liberalism, she rejects appeals to the significance of cultural differences, arguing that many of the world’s traditions or cultures are ‘quite distinctively patriarchal’.70 She refuses to yield to assertions of cultural difference or to sacrifice her commitment to liberal political principles. Okin’s dismissal of multicultural politics has 67 See generally: M Malik, ‘Communal Goods as Human Rights’ in C Gearty and A Tomkins, (eds), Understanding Human Rights (London, Mansell, 1996) 138; C Joppke and S Lukes, Multicultural Questions (Oxford, OUP, 1999). As a liberal, Kymlicka is committed to the overriding priority of individual autonomy within any multicultural arrangement. He seeks to contain the politics of difference within the constraints of liberal justice. See: W Kymlicka, Politics in the Vernacular: Nationalism, Multiculturalism, and Citizenship (Oxford, OUP, 2001) 44. For him, the aim of group-specific rights is to promote equality as between groups. Group members must be free, however, to question and reject ascribed identities. It is this commitment to individual autonomy, to a freedom to opt in or out of cultural membership, that leads to disagreement. 68 S Benhabib and D Cornell, (eds), Feminism as Critique: On the Politics of Gender (Minneapolis, MN, University of Minnesota Press, 1986) 12. 69 A Shachar, ‘The Puzzle of Interlocking Power Hierarchies: Sharing the Pieces of Jurisdictional Authority’ (2000) 35(2) Harvard Civil Rights—Civil Liberties L Rev 387. See also: A Shachar, Multicultural jurisdictions: Cultural Differences and Women’s Rights (Cambridge, CUP, 2001). 70 S Okin, above n 24, p 14.

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attracted heated responses. The problem is not in her refusal to yield, per se, but rather in her failure to engage with cultural claims. She seems to presume that that non-western (non-liberal) cultures exist in a time warp, with no local traditions of protest, no indigenous feminist movements, no sources of political or cultural contestation. As Homi K. Bhabha points out, ‘her monolithic distinction between the West (liberal) and the Rest, seems to consign the South to a kind of premodern customary society devoid of the complex problems of late modernity.’71 Okin fails to engage with the ‘exotic other female’.72 Her gaze is cast from a point that is resolutely from above and elsewhere. Okin’s views have been dismissed as reflecting those of ‘western patriarchal feminism’, a feminism that is ‘burdened with immigrant problems and the human rights conflicts which they engender.’73 Her feminism fails to recognise the need for dialogue, contestation and ongoing negotiation. This dismissal of cultural claims does little to support feminist movements that cannot claim the support of a liberal-democratic state. In Okin’s writings, Third World and Minority women appear only as passive victims of violence and persecution. In her dismissal of multiculturalism, there is, yet again, an essentialising of difference. Diane Otto points out that this essentialising of difference recurs throughout the theory and practice of human rights, with familiar gender tropes—of women as mother, wife and victim—underpinning the construction of the subject of human rights law.74 She argues that we need to understand gender-identities as the ‘hybrid result of choices and desires’ She also recognizes, however, that appeals to hybridity risk erasing the very core of female subjectivity that make agency possible and that defines the limits within which ‘reinvention’ takes place. The dual-track approach attempts to overcome the essentialising tendencies of Okin’s liberalism, while at the same town providing for the possibility of a hybridity of gender identities. It does so by insisting on the importance of public contestation, negotiation and an ongoing moral conversation. The emphasis on dialogue and negotiation allows feminist movements to combine ‘insider methodologies’ that renegotiate religious– cultural traditions from within, with a universalist normative framework that legitimises the pursuit of gender equality. This approach avoids the ‘balkanisation’ effect of multicultural politics and goes beyond creating a modus vivendi between diverse communities. As such, it takes us beyond liberal models of multicultural accommodation such as that proposed by 71

HK Bhabha, above n 24, p 82. K Engle, ‘Female Subjects of Public International Law: Human Rights and the Exotic Other Female’ (1992) 26 New England L Rev 1509. 73 A Al-Hibri, ‘Is Western Patriarchal Feminism Good for Third World/Minority Women?’ in S Okin, above n 24, p 41. 74 D Otto, ‘Disconcerting “Masculinities”: Reinventing the Subject of International Human Rights’ in D Buss and A Manji, (eds), International Law: Modern Feminist Perspectives (Oxford, Hart Publishing, 2005). 72

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Will Kymlicka. For Kymlicka, the role of a multicultural arrangement is to accommodate a societal culture within a liberal democratic state, and to define the limits of reasonable pluralism with reference to prevailing liberal norms. This may include recognizing group rights to autonomy or selfgovernment and allowing for group differentiated citizenship. However, while Kymlicka’s proposals allow for the creation of a modus vivendi between diverse cultural groups, they do little to create a ‘sense of belonging’ for minority groups, or to promote greater intercultural understanding between groups. Ultimately, such a modus vivendi leads to the creation of multicultural enclaves. This so-called ‘balkanisation effect’ of group rights contributes to the isolation of women within minority groups, reinforcing gendered divisions between the public and the private and doing little to reconcile the conflicting claims of feminism and multiculturalism. Kymlicka also takes culture as a given, failing to recognise the significance of subaltern voices or strands of resistance within groups.75 His concept of a societal culture suggests a coherent unified set of norms and practices that define a ‘way of life’, across the full range of human activities. But, as Benhabib points out, there are no such societal cultures. There is no single organising principle that encompasses both public and private spheres for distinct cultural groups. Any human society, at any given point in time, is composed of multiple material and symbolic practices each reflecting different histories of struggle. Kymlicka’s discussion of societal cultures commits the logical error of pars pro toto—’substituting the part for the whole’— thereby contributing to a politics of recognition that takes cultures as organic unified entities. Kymlicka values societal cultures, because they give people access to a range of meaningful options. However, some cultures do not provide their members with a range of options, and do not permit their members to revise their conceptions of the good. In such cases, it is unclear what we are supposed to make of the relationship between cultural membership and the realisation of individual freedom or what the precise value of societal cultures is. In contrast, the dual-track model proposed by Benhabib clearly values requirements of justice and equality ahead of culture as such. D. CONCLUDING REMARKS

One of the most pressing tasks for any defence of universalism is the question of how to negotiate conflicting cultural claims. Difference feminisms have argued that the universalist discourse of rights fails to recognize the significance of differences between women or between women and men. The idea of a global feminism, from this perspective, is flawed. The dual-track 75

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approach proposed by Benhabib, however, offers us a way of creating space for differences, within the limits of a just multicultural state and a cosmopolitan world order. Rather than appealing to the exclusiveness of a single ‘ethnos’, discourse ethics appeals instead to ‘communities of planetary interdependence’ and to the moral ideals of humanity and international solidarity.76 This appeal to humanity is not an appeal to a common essence or to some intrinsic nature. Rather, it is an appeal to a regulative ideal that defines a vision of human solidarity and community. It is this vision that underpins the dual-track approach and Benhabib’s discussion of cultural claims. As we see in Susan Okin’s writings, feminism and the politics of multiculturalism have become increasingly polarized. This polarization does little to assist women struggling for greater equality within diverse cultural communities. Rather than the kind of oppositional stance that we see in Okin’s work, a dual-track approach points to the need to engage in an ongoing moral conversation, informed by the universal norms of equal moral respect and egalitarian reciprocity. Such dialogues can be risky and unpredictable. They may lead to further polarisation or to greater intercultural understanding. Ultimately, the goal is to arrive at just multicultural arrangements, to create a sense of belonging for diverse communities and to demand the inclusion of the ‘other’.77 We are still quite far from Benhabib’s vision of a cosmopolitan world order. Reservations to human rights treaties reveal the state-centred nature of much international law and the appeals to religious–cultural traditions that continue to constrain the pursuit of a global feminism. Limiting a state’s right to opt out of human rights norms requires recognition of the universal legitimacy of those norms. Feminism’s shift away from the universalistic discourse of human rights adds to the difficulties that arise when states opt out of international human rights norms. Indeed, reserving states often find support for their claims in feminism’s refusal to acknowledge the universal legitimacy of human rights discourse. This refusal leaves feminist movements within reserving states without the support of a truly global movement and without a justificatory basis for their claims. The next chapter looks at the debate surrounding reservations to international human rights treaties, focusing, in particular, on the reservations that have been entered to CEDAW. This debate highlights the difficulties that arise for feminism in the absence of a universalistic normative framework and the necessity of remaining within such a framework if a coherent challenge is to be mounted against reserving states. The dual-track approach, recognizing both the need for legal regulation and for an expanded moral–political dialogue offers the possibility of overcoming the limits of the orthodox reservations debate. It also takes us beyond the limits of feminisms that return us and limit us to the local. 76 77

S Benhabib (1995), above n 2. J Habermas (2001), above n 30.

6 Opting out of Women’s Human Rights: Reservations to Human Rights Treaties and the Defence of Culture

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ROGRESS TOWARDS THE effective implementation of CEDAW has been greatly hindered by the sweeping reservations entered by states. As of 18 March 2006, 90 per cent of the world’s states (181 states) had ratified the Convention, bringing us nearer to the goal of universal participation. The USA has signed but not yet ratified the Convention. This near universal participation has been achieved, however, at a considerable cost. More than half of the States Parties to the Convention have entered reservations or declarations, limiting the scope of the Convention and also limiting the mandate of the CEDAW committee.1 Many states have entered sweeping reservations to Article 2, the core obligation of the Convention, making it difficult to ascertain what obligations, if any, are being undertaken by those states. Underpinning these reservations is a desire to limit the scope of international law and to reclaim the specificity of gendered identities. The shift towards a cosmopolitan order is disrupted and women’s human rights are proclaimed, yet again, as private, cultural, domestic affairs. It is not just the number or scope of the reservations that poses a problem, however. It is the justification given by states for ‘opting out’. States have appealed to religious beliefs and practices, to the requirements of Islam,2 to distinct constitutional traditions protecting the private 1 See generally: ‘Statement on Reservations to the Convention on the Elimination of All Forms of Discrimination Against Women’, adopted by the Committee on the Elimination of Discrimination Against Women, Report of the Committee on the Elimination of Discrimination Against Women (18th and 19th sessions) GAOR, Supplement No 38 (A/53/38/Rev 1) ch 1. 2 Reservations specifically invoking the Shari’ah include: Bangladesh; Egypt; Iraq; Kuwait; Libya; Malaysia; Maldives; Mauritania; Morocco; Saudia Arabia; Syrian Arab Republic; United Arab Emirates. Many other states have entered reservations that do not specifically invoke the Shari’ah but can be understood as appealing to the requirements of the Shari’ah to justify ‘opting out’. See for example, the reservations entered by Pakistan, Tunisia, Niger. The initial reservations entered by Turkey to articles of the Convention concerning family relations (specifically Arts 15 and 16), were subsequently withdrawn in September 1999. The full text of these reservations is archived at: http://www.un.org/womenwatch/daw/cedaw/reservationscountry.htm#N19

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sphere3—as in the USA—and to the need to respect the practices and beliefs of distinct religious communities.4 This chapter examines the socalled reservations dialogue surrounding CEDAW and other human rights treaties. Over the last decade, the rise of identity politics, coupled with the discourse of postcoloniality and anti-imperialism, has given added strength to the claims of reserving states. Assertions of religious–cultural difference appear as acts of resistance against the imperialising impulse of universalistic claims. From this perspective, the disruption and fragmentation resulting from reservations to human rights treaties is inevitable.5 As Iris Marion Young says, ‘The totalizing movement always leaves a remainder’.6 The reservations dialogue poses a challenge to feminists, many of whom have moved away from universalistic claims and urged scepticism about the tools and methods of international human rights law. Rather than expanding the scope of international human rights law, much of contemporary feminist theory urges a return to the local, arguing that universalistic discourses deny the significance of religious, cultural and other differences between women. At the same time, women’s rights activists in many parts of the world continue to appeal to the tools and principles of international human rights law to support their claims. This gap between feminist theory and practice signals a problem within feminism. Feminist theory has always been closely allied to the practical struggle to achieve justice and equality for women. The growing gap between feminist theory and the daily struggles of the women’s movement is troubling. In the context of the reservations dialogue, engaging in a process of normative reconstruction requires us to challenge the boundaries set by states and their right to ‘opt out’ of human rights treaties in the name of religious beliefs or cultural traditions. More than legal regulation is needed, however, if such challenges are to be successful. The orthodox solutions to treaty reservations, the blunt application of an ‘object and purpose’ test and severability clauses, will do little to contribute to a feminist process of reconstructing human rights law. Various solutions have been proposed with a view to ensuring ‘universality

3 See: Statements by Senator Jesse Helms, Senate Foreign Relations Committee. The USA, under the Carter administration, signed CEDAW on 17 July 1980, but has not yet ratified the Convention. The Senate Foreign Relations committee held hearings in 1994 and 2002 and voted favourably each time to send the treaty to the Senate floor. Since that time, for various political reasons, the Senate has not voted on this treaty. 4 See, for example, the reservations entered by Singapore and India, archived at: http://www.un.org/womenwatch/daw/cedaw/reservations-country.htm#N19 5 J Flax, Thinking Fragments: Psychoanalysis, Feminism, and Postmodernism in the Contemporary West (Berkeley, CA, University of California Press, 1990) 32. 6 IM Young, ‘Impartiality and the Civic Public: Some Implications of Feminist Critiques of Moral and Political Theory’ in S Benhabib and D Cornell, (eds), Feminism as Critique: On the Politics of Gender (Minneapolis, MN, University of Minnesota Press, 1986) 57, 61.

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of participation’ in human rights treaties while at the same time preserving the ‘integrity of agreement’.7 These solutions, however, have little impact on the debates surrounding reservations to CEDAW. Formal legal tests to determine the permissibility of a reservation or the legal consequences of a finding of impermissibility leave the fundamental questions unanswered, viz, what are the limits of reasonable pluralism and is it reasonable to ‘opt out’ of human rights standards in the name of religion, culture or tradition or domestic laws and customs? This chapter explores the implications of discourse ethics for the reservations dialogue and the integrity of CEDAW. In drawing on discourse ethics, it questions how and whether the dual-track approach to cultural conflicts provides feminism with the resources necessary to challenge reserving states and to move beyond the current impasses of the reservations dialogue. A. THE RESERVATIONS DIALOGUE: THE ORTHODOX RESPONSE

The last decade has witnessed an ongoing reservations dialogue within the UN human rights system. This dialogue has brought into question the nature of international human rights treaties and the source of their claim to legitimacy. International lawyers have largely avoided these questions, not wishing to ground human rights norms in any single comprehensive doctrine. However, when states ‘opt out’ of human rights treaties and seek to exclude the application of human rights norms through reservations or interpretive declarations, these questions become difficult to avoid. Articles 19–23 of the 1969 Vienna Convention on the Law of Treaties offer a solution to the problem of reservations.8 The ‘object and purpose’ of a treaty defines the limits of validity and defines also the limits of a State Party’s right to opt out. The application of this regime in the context of human rights treaties, however, has been fraught with difficulty.9 The reservations dialogue has come to an impasse with, on the one hand, human rights treaty

7 See generally, C Redgwell, ‘Universality or Integrity? Some Reflections on Reservations to General Multilateral Treaties’ (1993) 64 British Yearbook of International Law 245. 8 UN Doc A/CONF 39/27. For the preparatory materials see United Nations Conference on the Law of Treaties, Official Records, 1st Session, A/CONF 39/11; 2nd Session, A/CONF 39/11/Add.1; Documents of the Conference, A/CONF 39/11/Add.2. See also S Rosenne, The Law of Treaties: A Guide to the Legislative History of the Vienna Convention (New York, NY, Oceana Publications, 1970). 9 See generally: R Higgins, ‘Human Rights: Some Questions of Integrity’ (1989) 52 MLR 1; L Lijnzaad, Reservations to UN Human Rights Treaties: Ratify and Ruin? (London, Martinus Nijhoff, 1995); CJ Redgewell, ‘Reservations to Treaties and Human Rights Committee General Comment No 24’ (1997) 46 International and Comparative Law Quarterly 390; JP Gardner, (ed), Human Rights as General Norms and a State’s Right to Opt Out Of Reservations and Objections to Human Rights Conventions (London, British Institute of International and Comparative Law, 1996).

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bodies asserting the right to adjudicate on the validity of reservations and, on the other hand, states objecting to such assertions and reclaiming the sphere of domestic jurisdiction.10 In its advisory opinion on the Reservations to the Genocide Convention Case,11 the International Court of Justice (ICJ) moved away from a strict contractual approach to reservations and proposed instead the object and purpose test: ‘A State which has made and maintained a reservation which has been objected to by one or more of the parties to the Convention but not by others, can be regarded as being a party to the Convention if the reservation is compatible with the object and purpose of the Convention.’12 (emphasis added) In an increasingly diverse international community, the traditional unanimity rule was no longer appropriate. The desire to maximise participation in the Convention regime and the normative character of the Genocide Convention required greater flexibility and a shift away from the contract paradigm of treaty law. At stake, the ICJ concluded, was a common interest. We could no longer speak of individual advantages or disadvantages to states or of the maintenance of ‘a perfect contractual balance between rights and duties.’13 In a statement that underestimated the politicisation of human rights, the Court concluded that in the context of human rights treaties, contracting States did not have ‘any interests of their own.’14 Despite the Court’s appeal to the Convention’s ‘high purposes’, however, its opinion was initially greeted with less than enthusiasm. The International Law Commission (ILC) sought to confine the object and purpose test to the Genocide Convention.15 Others sought to confine the test to normative treaties that by their nature required universal participation.16 Even then, however, it was recognised that difficulties would remain. The ICJ simply

10 Considerable controversy was generated by the UN Human Rights Committee’s General Comment No 24(52). See: General comment on issues relating to reservations made upon accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under Art 41 of the Covenant, No 24(52), 2 November 1994. CCPR/C/21/Rev.1/Add.6. Following the HRC’s adoption of General Comment No 24(52), the United States expressed its concern in a written communication to the Chairperson of the Committee, letter dated 28 March 1995, UN Doc A/50/40. The first report submitted by the US under Art 40 of the ICCPR was considered at the 53rd session of the Human Rights Committee: see CCPR/C/79/Add.50. The UK has also objected to General Comment 24(52), letter dated 21 July 1995, UN Doc A/50/40. 11 ‘Reservations to the Convention on the Protection and Punishment of the Crime of Genocide’, ICJ Repotrs (1951) 15. 12 Ibid, p 23, para 10. 13 Ibid, p 23. 14 Ibid. 15 Yearbook of the International Law Commission (1951), vol 2, p 128, para 24. 16 See the joint dissenting opinions of judges Guerrero, McNair, Read and Hsu Mo, above n 11, p 31ff. See also: J Fitzmaurice, ‘Reservations to Multilateral Conventions’ [1953] 2 International and Comparative Law Quarterly 16.

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assumed that the object and purpose of a treaty would be self-evident or, at the very least, would not be essentially contested by states. This assumption, however, was to prove unfounded. Foreseeing a problem that was to plague human rights treaties, Ruda pointed out that in the absence of agreement as to the object and purpose of a treaty, every state would be free to arrive at the conclusions most convenient to itself.17 Not only would this undermine the integrity of human rights norms, it would also allow for the reassertion of domestic jurisdiction and state sovereignty. In the absence of agreement, the multilateralism of a human rights treaty would collapse into a fragmented series of reservations, objections and confusion. The application of the Vienna Convention regime results in the fragmentation of the treaty commitment: ‘A question which ought to have only one answer (whether a reservation is incompatible with the object and purpose of a treaty) appears to receive a variety of answers.’18 Fragmentation and confusion may be inevitable in the context of a complex and diverse international community. Certainly, post-modern legal thinkers would have us believe so. For those concerned to promote universal observance of human rights standards, however, it leads only to further delay and inaction. The application of the object and purpose test remains largely unresolved by the 1969 Vienna Convention. Article 19 of the Convention establishes the general principle that states are entitled to ‘formulate’ reservations to treaties, subject to the constraints of the object and purpose test.19 However, it fails to charge any independent body with the task of applying that test. This omission has attracted much criticism. At the time, however, Soviet opposition to compulsory dispute resolution and the low esteem in which the ICJ was held would have made agreement on an appropriate body virtually impossible. As a result of this omission, the legal effect of an impermissible reservation remains unclear. In his dissenting opinion in the Interhandel case,20 Judge Lauterpacht argued that the consequences of an impermissible reservation depended on whether the reservation was an ‘essential condition’ of ratification. The will of the State was, in his view, the controlling factor. Lauterpacht’s view, however, has not been followed in the context of humanitarian or human rights treaties. A variation of the

17

J M Ruda, ‘Reservations to Treaties’ (1975) (III) Receuil des Cours 146, 148–51, 156–75. F Hampson, ‘Reservations to Human Rights Treaties: Final Working Paper’ Sub-commission on the Promotion and Protection of Human Rights, 56th session, E/CN.4/Sub.2/2004/42, 19 July 2004, para 27. 19 The use of the term formulate is quite deliberate. The International Law Commission explicitly rejected the term ‘make’ because it might imply that a state had a right to participate in a treaty on the basis of the reservation. See: C Redgwell, ‘Universality or Integrity? Some Reflections on Reservations to General Multilateral Treaties’ (1993) 64 British Yearbook of International Law 245, 262. 20 Interhandel Case Switzerland v US. (Preliminary Objections) ICJ Rep 1959, 6, dissenting opinion of Judge Lauterpacht, 101–18. 18

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severability approach to incompatible reservations was adopted by several States in response to reservations entered to the 1949 Geneva Conventions. The United Kingdom declared at ratification that they did not regard as valid, reservations entered to the Third and Fourth Geneva Conventions by Albania, the Byelorussian Soviet Socialist Republic, Bulgaria, China, Czechoslovakia, Hungary, Poland, Romania, the Ukrainian Soviet Socialist Republic and the Union of Soviet Socialist Republics. They continued, however, to regard those states as being parties to the Conventions. The United States similarly objected to reservations entered to the Geneva Conventions but continued to ‘accept treaty relations with all parties [to the Conventions] except as to the changes proposed by such reservations’.21 The Special Rapporteur of the ILC has suggested that the severability approach adopted in the case law of the European Court of Human Rights reflects an emerging norm of regional customary law.22 In a case brought by France, Norway, Denmark, Sweden and the Netherlands against Turkey, Turkey sought to rely on the French reservation to Article 15 of the European Convention on Human Rights (ECHR), citing the general principle of reciprocity in international law and the rule stated in Article 21(1) of the Vienna Convention on the Law of Treaties. The European Commission did not rule on the validity of the reservation in question. However, it did note that the general rules of international law were not applicable in the same way to disputes concerning reservations to human rights treaties. The obligations under the ECHR were ‘essentially of an objective character, being designed rather to protect the fundamental rights of individual human beings [...] than to create subjective and reciprocal rights for the High Contracting Parties themselves.’23 The Commission’s reasoning appears to be based on the presumed intention of the Contracting parties, to give effect to their undertakings. This gives rise to an outcome different than in the case of other treaties, not designed to promote or protect human rights. In Belilos v Switzerland,24 the European Court of Human Rights concluded that an impermissible reservation is a nullity and that the ‘reserving State’ is bound by the treaty without the benefit of the reservation. In this case, the declaration entered by Switzerland to Article 6 was found to be impermissible and, therefore, severable. The Court’s judgment was affirmed in Lozidou v Turkey. The Court justified this stance by appealing

21 See: Roberts and Guelff, Documents on the Laws of War, 3rd edn, (Oxford, OUP, 2000) 363–68. 22 Report of the International Law Commission on the work of its 49th session, Official Records of the General Assembly 52nd Session, Supplement No 10 (A/52/10) para 84. 23 35 Decisions and Reports 143, paras 39–40. 24 Eur Court HR, Belilos v Switzerland, decision of 21 May 1987, Ser A no 132. See: I Cameron and F Horn, ‘Reservations to the European Convention on Human Rights: The Belilos Case’ (1990) 33 German YIL 69.

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to the special character of the ECHR as an instrument of European public order, adopted ‘for the protection of individual beings.’25 The Court, however, does not argue that it is applying or seeking to develop a form of regional customary law, as suggested by the Special Rapporteur of the ILC. In Bankovic and others v Belgium and 16 other NATO States,26 the Court repeatedly stresses that it takes into account all relevant international law, including the Vienna Convention, whilst also remaining mindful of the special character of the Convention as a human rights treaty. The special character of human rights treaties has also been invoked by the UN Human Rights Committee. In its General Comment 24, the Committee accepts that the criteria for determining the permissibility of a reservation are provided by the object and purpose test.27 As to the consequences of an impermissible reservation, it follows the severability approach adopted in the Belilos case. Most controversial, however, has been its conclusion that it, as the treaty monitoring body, has the competence to determine whether a reservation satisfies the object and purpose test.28 Both the UK and the US have objected to the Committee’s extension of its competence.29 The Committee, however, has persevered. In its 1999 decision on the admissibility of the Rawle Kennedy communication, the Committee rejected Trinidad and Tobago’s reservation to the First Optional Protocol as incompatible with the object and purpose of the Protocol.30 Trinidad and Tobago had sought to exclude the competence of the Human Rights Committee in relation to communications received from death row inmates. The Committee concluded that a reservation, which singled out a group of people for lesser procedural protection, ran counter to the basic principles of the Covenant and its Protocols.31 The dissenting opinions given on the decision, however, highlight the tensions within the Committee on the subject of reservations. In the view of the dissenting Committee members, ‘All or nothing is not a reasonable maxim in human rights law’.32 Compromise was necessary and in their view, the will of the state continued to be a controlling factor even in the context of human rights treaties.

25 Lozidou v Turkey, Judgment of 18 December 1996, 23 EHRR 513, para 93. The Court held that the territorial restrictions that Turkey had attached to its Art 25 (competence of the Commission) and 46 (competence of the Court) declarations were severable, paras 90–98. 26 52207/99, admissibility decision of 12 December 2001, paras 55–57. 27 Above n 10, para 6. 28 Ibid. 29 Ibid. 30 Rawle Kennedy v Trinidad and Tobago, 2 November 1999, CCPR/C/67/D/845/1999. 31 Ibid, para 6.7. 32 Above n 10, Individual, dissenting, opinions of Committee members Nisuke Ando, Prafulachandra N Bhagwati, Eckart Klein and David Kretzmer, para 7.

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Rosalyn Higgins has defended the HRC’s General Comment No 24 (52), pointing out that the reciprocal function of the reservations mechanism is ‘almost meaningless’ in the context of multilateral human rights treaties.33 As to the role and function of treaty monitoring bodies in relation to reservations, Higgins argues that these were not considered by either the ICJ or the framers of the Vienna Convention. At the same time, however, both the ICJ and the Vienna Convention rejected the ‘extreme ... application of the idea of State sovereignty’.34 Avoiding such extreme applications in the context of human rights treaties, she says, requires a controlling function to be undertaken by the treaty monitoring body. The Human Rights Committee was simply suggesting appropriate procedures for an evolving international law. The ‘overwhelming evidence’ before the Committee was that the ‘flexible State response system’ simply did not work.35 The International Law Commission (ILC) has also taken up the question of reservations. In 1997, the Commission adopted a set of Preliminary Conclusions on Reservations to Normative Multilateral Treaties, including Human Rights Treaties.36 The Preliminary Conclusions draw on a series of reports submitted by the Special Rapporteur, Mr Alain Pellet.37 They differ in a number of respects from the HRC’s General Comment No 24 and have provoked some disquiet amongst human rights treaty monitoring bodies.38 The ILC rejects the view that human rights treaties are sui generis and concludes that the Vienna Convention regime is sufficiently flexible to accommodate the requirements of all treaties, whatever their object or nature.39 In their view, the role of treaty bodies is limited to commenting upon and expressing recommendations on reservations. The ‘traditional modalities of

33 R Higgins, ‘Introduction’ in JP Gardner, (ed), Human Rights as General Norms and a State’s Right to Opt Out: Reservations and Objections to Human Rights Conventions (London, BIICL, 1996) xix. 34 Ibid, p xii. 35 The Inter–American Court of Human Rights has reached a similar conclusion. In its view, the opposability regime envisaged by the Vienna Convention is inappropriate in the context of modern human rights treaties that have as their object and purpose the protection of the basic rights of individual human beings. See: ‘The Effect of Reservations on the Entry into Force of the American Convention’, Arts 74 and 75, Advisory Opinion OC–2/82, 2 Inter–Am Ct HR (Ser A, No 2) paras 29–30 (1982). See also: IACtHR, Advisory Opinion OC–3/83 of 8 September 1983, Restrictions to the Death Penalty, Art 4(2) and 4(4), American Convention on Human Rights, Series A No 3, paras 60–74. 36 GAOR, 51st Session, Supplement No 10 (A/51/10) para 157. 37 At its 46th session in 1994, the ILC appointed Mr Alain Pellet Special Rapporteur for the topic. See: GAOR, 49th Session, Supplement No 10, UN Doc A/49/10, para 382. 38 Report of the 9th meeting of persons chairing the human rights treaty bodies: 14 May 1998 GAOR, UN Doc A/53/125, para 17; Report of the International Law Commission on the work of its 49th session, Chapter V, ‘Reservations to Treaties’, 12 May to 18 July 1997, GAOR, UN Doc A/52/10; Report of the Secretary General on the views of the six human rights treaty bodies on the Preliminary Conclusions of the International Law Commission GAOR UN Doc E/CN.4/sub.2/1998/25. 39 Above n 38, para 2.

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control’ exercised by the contracting parties through the opposability regime remain unaffected.40 Underpinning the ILC’s conclusions is a statecentred conception of international law and a view of legal obligation as rooted in the consent of States. In the view of the Special Rapporteur, treaties ‘draw their strength from the will of States’.41 The Commission is willing to allow an expanded role for treaty monitoring bodies but only where States parties have explicitly consented to such a role—through protocols to existing treaties or specific clauses in a treaty.42 The human rights treaty bodies have argued that the ILC’s conclusions are ‘unduly restrictive’ and fail to recognise that human rights treaties, ‘by virtue of their subject-matter’, cannot be placed on the same footing as other treaties with different characteristics.43 As the HRC has stated, the rights enshrined in human rights treaties belong to the people living in the territory of State parties. It is not within the gift of the state to simply denounce or withdraw those rights.44 The Sub-commission on the Prevention of Discrimination and Protection of Minorities has responded with some concern to the work of the ILC.45 On the 50th anniversary of the Universal Declaration of Human Rights, the Sub-commission requested Françoise Hampson to prepare a working paper on reservations to human rights treaties. In her final working paper, submitted to the Sub-commission in 2004,46 Hampson concludes that there is no special legal regime applicable to reservations to human rights treaties, either on account of the legal character of the treaties themselves or of reservations to them. She suggests, however, that reservations to human rights treaties are more likely to be found invalid, because of the object and purpose of such treaties. As to the competence of treaty monitoring bodies to determine the permissibility of reservations, she concludes that this follows from the general competence of judicial or quasi-judicial bodies to determine their jurisdiction. The role of the monitoring bodies in ensuring compliance with human rights treaties also reflects the distinct nature of human rights treaties. Human rights treaties represent unilateral undertakings made by a collection of states. All other states have, or should have, an interest in a state’s respect for human rights law. Ensuring compliance with human rights law is not, or should not

40

Preliminary Conclusions, above n 38, para 6. Above n 38, para 83, citing Art 11 of the 1969 Vienna Convention on the Law of Treaties. 42 The Commission has subsequently adopted a set of draft guidelines, which are intended to form a Guide to Practice for the assistance of States and international organisations. It is intended that these guidelines will, if necessary, be accompanied by model clauses. 43 Above n 38, para 17. 44 CCPR General comment 2, 08/12/97, Continuity of obligations (61st session, 1997), GAOR, UN Doc A/53/40, annex VII. 45 See: Reservations to Human Rights Treaties, Sub-commission on Human Rights resolution 2001/17, E/CN.4/SUB.2/RES/2001/17. 46 See: F Hampson, above n 18. 41

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be, principally a question of a particular or bilateral interest. As Hampson points out, the monitoring bodies are, in a sense, representing the interests of all states when they exercise their functions.47 Against the background of this ongoing reservations dialogue, various legal solutions have been proposed. In his partly dissenting opinion in the Chorherr case, Judge Valticos suggests that the depositary of the ECHR, the Council of Europe, should request an advisory opinion from the Court on the validity of reservations attached to any new ratifications.48 Lijnzaad suggests a ‘sunset provision’, imposing a time limit on the validity of reservations, subject to limited possibility of renewal.49 This proposal draws on the denunciation provisions in ILO Conventions. A similar proposal is made by Judge Van de Meyer in his concurring opinion in the Belilos case. He suggests that states be given ‘a brief space’ following the ratification of a treaty, during which time steps should be taken to bring domestic legislation into line with the requirements of the treaty.50 However, while it might allow for the progressive implementation of human rights treaties, if a state fails to comply with the time limit, it serves only to defer the inevitable conflict between the ‘reserving State’ and the treaty monitoring body. Rebecca Cook proposes a similar compromise solution to the problem of reservations to CEDAW.51 Those reservations that provide for the progressive realisation of full equality for women, albeit, by means of a gradual progression, would be regarded as compatible with the Convention and in compliance with its object and purpose. Those, however, that envisage an enduring inconsistency between the Convention and state law or practice would be incompatible with its object and purpose. In its reporting guidelines for States parties, the CEDAW Committee adopts a similar stance. States that have entered reservations are requested to include information on those reservations in each of their periodic reports and, in particular, to indicate the plans that it has to limit the effect of reservations and ultimately to withdraw them. States parties that have entered general reservations or reservations to Articles 2 and 3 are requested to make a particular effort to report on the effect and the interpretation of those reservations. The Committee also reiterates its view that such reservations are incompatible with the object and purpose of the Convention.52 Another proposed alternative is to seek an advisory opinion from the ICJ in the event of ‘lingering

47

Ibid, para 47. Chorherr v Austria, Judgment of 25 August 1993, Series A No 266–B, partly dissenting opinion of Judge Valticos (1994) 17 EHRR 358, p 42. 49 L Lijnzaad, above n 9. 50 Above n 24, concurring opinion of Judge Van de Meyer. 51 R Cook, ‘Reservations to the Convention on the Elimination of All Forms of Discrimination Against Women’ (1990) 30 Virginia Journal of International Law 643, 650. 52 See: UN Doc HRI/GEN/2/Rev.1, 9 May 2001 (CEDAW/C/7/Rev.3, entitled Guidelines for preparation of reports by States parties). 48

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uncertainties’ concerning the permissibility of a reservation.53 In the context of CEDAW, however, the uncertainties go far deeper. The technicalities of treaty law are unlikely to be helpful in resolving what are principally normative or political conflicts. B. CEDAW AND THE RESERVATIONS DIALOGUE

On the 50th anniversary of the Universal Declaration of Human Rights, CEDAW issued a statement highlighting the adverse impact of reservations on international human rights law.54 The Committee’s statement highlights the threat that reservations pose to the entire human rights regime, the limits such reservations place on the efficacy of international human rights standards and the mandate of treaty monitoring bodies. The CEDAW Committee has, in recent years, adopted a strong universalistic stance towards women’s human rights, rejecting appeals to religious–cultural beliefs that seek to justify inequalities in domestic law and practice. The UN Special Rapporteur on religious intolerance has also supported this universalistic stance, holding that religious norms relating to the status of women are dynamic and should not be put forward as a justification for reservations to CEDAW or other treaties.55 This universalist stance is mirrored in legal instruments such as the 1993 Vienna Declaration and Programme of Action, the 1993 Declaration on the Elimination of Violence Against 53 This has been suggested in particular in the context of reservations to CEDAW. R Jacobson, ‘The Committee on the Elimination of All Forms of Discrimination Against Women’ in P Alston, (ed), The United Nations and Human Rights: A Critical Appraisal (Oxford, Clarendon Press, 1992) 469. 54 Above n 1. At its 6th meeting, CEDAW adopted General Recommendation 4, which expresses concern at ‘the significant number of reservations that appeared to be incompatible with the object and purpose of the Convention.’ General Recommendation 4, Report of the Committee on the Elimination of Discrimination Against Women, 6th Session, 42 GAOR Supp No 38, para 579, UN Doc A/42/38 (1987). CEDAW also requested the UN to ‘promote or undertake studies on the status of women under Islamic laws and customs and in particular on the status and equality of women in the family ... taking into consideration the principle of El Ijtihad in Islam.’ The request provoked considerable controversy at ECOSOC’s next meeting and lead to further accusations of cultural imperialism and religious intolerance. Bangladesh’s delegate to the Economic and Social Council urged ‘the greatest caution in using the Convention as a pretext for doctrinaire attacks on Islam.’ (These comments were made following CEDAW’s criticisms of Bangladesh’s initial report under the Convention.) As a result of this controversy, ECOSOC recommended in its Resolution 1987/3 to the General Assembly, that no further action be taken on CEDAW’s request. See also: General recommendation No 20 (11th session, 1992), Reservations to the Convention, GAOR Supp No 38 UN Doc A/47/38; General recommendation No 21 (13th session, 1994), Equality in marriage and family relations, paras 41–44, GAOR, 49th Session, Supp No 38 UN Doc A/49/38. 55 See generally: UN Special Rapporteur on Religious Intolerance Civil and Political Rights, Including Religious Intolerance. Report submitted by Mr Abdelfattah Amor, Special Rapporteur in accordance with Commission on Human Rights Resolution 2000/33, UN Doc E/CN.4/2001/63; 13 February 2001, paras 186–87 and paras 473–76. See also: UN Doc E/CN.4/2002/73, paras 53–58.

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Women56 and the Beijing Declaration and Platform for Action.57 The Vienna Declaration and Programme of Action states that ‘the universal nature of these rights and freedoms is beyond question.’ The Declaration continues: ‘While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms.’58 This commitment to the universality of human rights is reiterated in the Beijing Platform for Action.59 The Political Declaration adopted as part of the Beijing + five review process, affirms the commitment to achieving universal ratification of CEDAW. The Secretary-general’s Beijing plus ten review calls for ‘urgent efforts’ to achieve universal ratification of CEDAW and withdrawl of reservations.60 The Political Declaration adopted at the 49th session of the UN Commission on the Status of Women, 2005, marking the Beijing plus ten review process does not restate any commitment to universal ratification of CEDAW, but notes simply that the Beijing Declaration and Platform and the standards set by CEDAW are ‘mutually reinforcing’.61 Ensuring that the commitments made at Beijing were safeguarded was a significant step in itself, reflecting the ongoing fragility of international standards on women’s human rights. Against this background, the problem of reservations to CEDAW persists. CEDAW prohibits discrimination against women ‘in all fields’ and imposes a duty on States parties to eliminate discrimination by any person, organisation or enterprise.62 Article 5 takes the prohibition on discrimination even further. States have a duty not only to repeal discriminatory laws, but also to challenge patterns of behaviour that perpetuate gendered stereotypes. Article 16 provides that women and men are to be treated as equals in all matters concerning the legal regulation of marriage and family relations. There are and continue to be many omissions from the text of the Convention, some of which have been overcome through the constructive interpretations applied by the CEDAW Committee. Taken together, the text 56 The 1993 Declaration on the Elimination of Violence Against Women, adopted 20 December 1993, GA Res 48/104, UN Doc A/48/29. 57 The Beijing Declaration and Platform for Action, Adopted 25 June 1993, UN Doc A/CONF.157/23. 58 United Nations World Conference on Human Rights, Vienna Declaration and Programme of Action, adopted 25 June 1993, part 1, para 5. 59 4th World Conference on Women, Declaration and Platform for Action, 15 September 1995, UN doc A/CONF 177/20 (1995), para 9. 60 UN Doc E/CN.6/2005/2 Report of the Secretary-General on the Review of the implementation of the Beijing Platform for Action and the outcome documents of the special session of the General Assembly entitled ‘Women 2000: Gender Equality, Development and Peace for the 21st Century’, para 403. 61 Commission on the Status of Women: 49th session, 28 February–11 March 2005, UN Doc E/CN.6/2005/L.1. 62 Art 2(e).

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of the Convention and the ‘jurisprudence’ of the Committee, give us an international instrument that is potentially very far-reaching indeed. As gender equality is increasingly mainstreamed into the work of other human rights treaty bodies, notably the Human Rights Committee,63 the scope of international human rights law has greatly expanded, holding out greater possibility for the transformation of domestic laws. Reservations, however, seek to limit this transformative potential and the scope of international human rights standards. This transformative potential is limited, in particular, by general reservations that seek to make a treaty obligation subject to conformity with something outside of the treaty, such as religious doctrine or domestic laws and customs. In such cases, States parties and the monitoring bodies are essentially being asked ‘to sign a blank cheque’.64 There is likely to be ongoing disagreement as to the content of the proposed alternative canon of interpretation, as where different adherents of the same religious group disagree on the meaning or scope of a particular doctrine. Where a general reservation appeals to domestic laws and customs, further uncertainties are created as such laws and customs may vary over time.65 Reservations to Article 2 of CEDAW—the core norm of obligation—pose a particularly ‘acute problem’ for CEDAW.66 A number of States have specifically ‘reserved’ on Article 2.67 Others states have entered reservations that do not invoke any specific provision of CEDAW but are broad enough to encompass Article 2.68 Saudi Arabia states that in case of contradiction between any term of the Convention and the norms of Islamic law, ‘the Kingdom is not under an obligation to observe the contradictory terms of 63 See: Equality of rights between men and women (Art 3): 29 March 2000, CCPR/C/21/Rev.1/Add.10, CCPR General comment 28. 64 See: F Hampson, above n 18, para 56. 65 Ibid. 66 Above n 18, para 10. 67 See reservations entered by: Algeria; Bangladesh; Bahamas; Democratic People’s Republic of Korea; Egypt; Iraq; Lesotho; Libya; Malaysia (subsequently withdrew reservation to Art 2(f); Morocco (Interpretive Declaration); New Zealand (Cook Islands); Niger; Singapore; Syrian Arab Republic; United Arab Emirates. The full text of reservations to CEDAW is archived at: http://www.un.org/womenwatch/daw/cedaw/reservations-country.htm. On ratification, Bangladesh entered a reservation stating: ‘The Government of the People’s Republic of Bangladesh does not consider as binding upon itself the provisions of Arts 2, 13 (a) and 16 (1)(c) and (f) as they conflict with Sharia law based on Holy Quran and Sunna.’ Objections to these reservations were entered by Germany, Mexico, the Netherlands and Sweden. On 23 July 1997, the Government of Bangladesh notified the Secretary-General that it had decided to withdraw the reservations made upon accession to Arts 13(a) and 16(f). The reservations are in stark contrast to the closing statements made by the Prime Minister of Bangladesh, Ms Khaled Zia, at the Fourth World Conference on Women in Beijing, 1995, where she reiterated her country’s commitment to the goals and objectives of the Nairobi Forward-looking Strategies and affirmed that the teachings and tenets of Islam could contribute positively to the realisation of equality, development and peace. Nowhere did she suggest that the teachings of Islam were in tension with the Beijing Declaration and Platform for Action or CEDAW itself. 68 See reservations entered by: Algeria; Bangladesh; Egypt; Iraq; Libya; Malaysia; Maldives; Morocco; Pakistan; Saudia Arabia; Tunisia; Turkey. Ibid.

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the Convention.’69 Pakistan’s ratification of the Convention was accompanied by a declaration stating that accession was subject to the provisions of its Constitution. General reservations such as these envisage an enduring inconsistency between state law and practice and the requirements of the Convention. State sovereignty and the defence of domestic jurisdiction reappears, this time in the guise of an unyielding assertion of difference. The divisions between the public and the private that the Convention seeks to overcome are re-asserted. Reserving states adopt a Rawlsian strategy, distinguishing between the public and domestic spheres. The distinctions made are highly gendered, revealing a reluctance to apply the tests of justice to those spheres most closely associated with women’s daily struggles—the family and intimate relations within the domestic sphere. The reassertion of a division between the public and the private can also be seen in the reservations entered to Article 16 of CEDAW and the specificity that is claimed for family life. Article 16 of the Convention guarantees the right to equality in all matters relating to marriage and family relations. When finally adopted, Article 16 represented a significant breakthrough in international human rights law. It brought family relations within the scope of international law, making visible the human rights violations that occur within the domestic sphere and naming them as such. The reservations entered by States parties to the Convention, however, have relegated the domestic sphere, yet again, to the penumbra of human rights law. The CEDAW Committee has noted ‘with alarm’ the number of states that have entered reservations to the whole or part of Article 16.70 Many have invoked the requirements of religious law as a justification for ‘opting out’ of the requirements of equal treatment in marriage and family relations. Kuwait has declared itself not bound by Article 16(f), inasmuch as it conflicts with the provisions of the Shari’ah—Islam being the official religion of the State.71 Israel has reserved on the application of Article 16, ‘to the extent that the laws on personal status which are binding on the various religious 69 A number of states have objected to Saudia Arabia’s general reservation, including: Denmark, Ireland, Norway, Sweden, Portugal, France, Germany, the Netherlands, Spain and the UK. Saudia Arabia has entered a similar reservation to the Convention on the Rights of the Child, with respect to all articles ‘as are in conflict with the provisions of Islamic law.’ 70 The following states have entered specific reservations to Art 16: Algeria; Bahamas; Bangladesh; Egypt; France; India; Iraq; Ireland; Israel; Jordan; Kuwait; Lebanon; Libya; Luxembourg; Malaysia (reservations to Art 16(b), (d), (e), (h) withdrawn on 6 February, 1998); Mauritius; Maldives; Malta; Morocco; Niger; Korea; Iraq; Syrian Arab Republic; Switzerland; Thailand; Tunisia; Turkey; United Arab Emirates; United Kingdom. A number of other states have entered general reservations that do not specifically refer to Art 16 but are broad enough to include Art 16. See, for example, the reservations entered by Mauritania and Pakistan. 71 Kuwait has also entered the following reservations to the Convention: Art 7 (a): The Government of Kuwait enters a reservation regarding Art 7 (a), inasmuch as the provision contained in that para graph conflicts with the Kuwaiti Electoral Act, under which the right to be eligible for election and to vote is restricted to males.

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communities in Israel do not conform with the provisions of that article.’72 On ratifying CEDAW, India entered an interpretive declaration stating that it would apply Articles 5 and 16 only to the extent that it conformed with its policy of ‘non-interference in the personal affairs of any Community without its initiative and consent.’73 Along with Article 16, Article 9, concerning women’s equal rights to acquire, change or retain their nationality, is one of the most heavily reserved provisions of CEDAW.74 Again, these reservations reflect the extent to which gender identities have become intertwined with states’ concerns to define and to delimit national identities.75

Art 9, para 2: The Government of Kuwait reserves its right not to implement the provision contained in Art 9, para 2, of the Convention, inasmuch as it runs counter to the Kuwaiti Nationality Act, which stipulates that a child’s nationality shall be determined by that of his father. Kuwait Interpretative declaration regarding Art 2, para 2, and Art 3: Although the Government of Kuwait endorses the worthy principles embodied in Art 2, para 2, and Art 3 as consistent with the provisions of the Kuwait Constitution in general and of its Art 29 in particular, it declares that the rights to which the articles refer must be exercised within the limits set by Kuwaiti law. On ratifying the Convention on the Rights of the Child, Kuwait entered the following general reservation: ‘[Kuwait expresses] reservations on all provisions of the Convention that are incompatible with the laws of Islamic Shari’a and the local statutes in effect.’ 72 Israel has also entered a reservation to Art 7(b) of the Convention: [...] concerning the appointment of women to serve as judges of religious courts where this is prohibited by the laws of any of the religious communities in Israel. Otherwise, the said article is fully implemented in Israel in view of the fact that women take a prominent part in all aspect of public life. 73 The full text of the declaration reads: i) With regard to Arts 5 (a) and 16 (1) of the Convention on the Elimination of All Forms of Discrimination Against Women, the Government of the Republic of India declares that it shall abide by and ensure these provisions in conformity with its policy of non-interference in the personal affairs of any Community without its initiative and consent. ii) With regard to Art 16 (2) of the Convention on the Elimination of All Forms of Discrimination Against Women, the Government of the Republic of India declares that though in principle it fully supports the principle of compulsory registration of marriages, it is not practical in a vast country like India with its variety of customs, religions and level of literacy. See also: Concluding Observations of the Committee on the Elimination of Discrimination Against Women: India, 1 February 2000, UN Doc A/55/38, paras 30–90. Unlike other states parties to the UN Convention on the Rights of the Child, India has not entered a reservation or declaration invoking religious-cultural claims. The declaration submitted on ratification refers only to the question of child labour and the need for progressive reform in this area. 74 See the reservations and declarations entered by: Algeria; Bahamas; Democratic People’s Republic of Korea; Egypt; Iraq; Jordan; Kuwait; Lebanon; Malaysia; Morocco; Republic of Korea; Saudia Arabia; Syrian Arab Republic; Tunisia; Turkey; United Arab Emirates; United Kingdom. 75 For a broader discussion on the relevance of gender to nationality laws, see: K Knop, ‘Relational Nationality: On Gender and Nationality in International Law’ in TA Aleinikoff and D Klusmeyer, (eds), Citizenship Today: Global Perspectives and Practices (Carnegie Endowment, 2001) 89.

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States have also entered reservations to provisions touching on the domestic sphere in other human rights treaties, though not with any degree of consistency.76 Algeria, for example, has entered an interpretive declaration to the provisions of Article 23, paragraph 4 of the Covenant on Civil and Political Rights (CCPR), regarding the rights and responsibilities of spouses as to marriage, during marriage and at its dissolution, stating that these provisions should in no way impair the ‘essential foundations’ of the Algerian legal system.77 Kuwait has entered an interpretative declaration regarding Articles 2(1) and 3 of the CCPR, endorsing the ‘worthy principles’ embodied in both articles, but noting that the rights contained therein must be exercised within the limits set by Kuwaiti law. With regard to Article 23, Kuwait declares that in case of any conflict with Kuwaiti law, national law will be applied. Other states entering reservations to Article 23 include Mauritania and the United Kingdom. States Parties’ failure to comply with the requirements of Article 23 has been highlighted in recent years by the Human Rights Committee, reflecting a greater integration of gender equality into the mainstream human rights treaties.78 The extensive reservations entered to the Convention on the Rights of the Child (CRC) mirror those entered to CEDAW and reflect the reluctance of states to apply

76 See the chart of reservations to human rights treaties produced at the 53rd session of the Sub Commission on the Promotion and Protection of Human Rights, UN Doc E/CN.4/ Sub.2/2002/34. 77 See: Concluding Observations of the Human Rights Committee: Algeria. 18 August 1998. CCPR/C/79/Add.95, para 13. Reservations to Art 23 have been entered by Algeria; Kuwait; Mauritania and the United Kingdom. See also Kuwait’s reservation to Art 25(b) of the ICCPR, which seeks to restrict the Covenant’s right of citizens to vote and to be elected, making it subject to provisions in Kuwaiti law that bar women from voting and standing for office and severely limit the rights of naturalized citizens. The reservation asserts:

The Government of Kuwait wishes to formulate a reservation with regard to Art 25(b).The provisions of this paragraph conflict with the Kuwaiti electoral law, which restricts the right to stand and vote in elections to males. It further declares that the provisions of the article shall not apply to members of the armed forces or the police. The text of Art 25(b) explicitly prohibits restriction of the right to vote and to be elected on the basis of discrimination prohibited in Art 2 of the Covenant: Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in Art 2 and without unreasonable restrictions: [....] b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors [....] 78 See, for example: Concluding observations of the Human Rights Committee: Mali. 16 April 2003. CCPR/CO/77/MLI, para 10; Concluding observations of the Human Rights Committee: Togo. 1 November 2001, CCPR/CO/76/TGO28, para 21. Concluding observations of the Human Rights Committee: Guatemala. 27 August 2001, CCPR/CO/72/GTM, para 24. Concluding observations of the Human Rights Committee: Syrian Arab Republic. 24 April 2001. CCPR/CO/71/SYR, para 20. See also: CCPR General comment 19. Protection of the family, the right to marriage and equality of the spouses (Art 23): 27 July 1990.

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human rights standards to the family or to acknowledge the obligations arising from economic and social rights claims.79 In these reservations and declarations, we see a decision by states to accord priority to the laws and practices of religious communities, regardless of their compatibility with international human rights standards on gender equality. Individuals are defined first and foremost as group members, with duties and obligations qua members of a group or community. As in Rawls’s Law of Peoples,80 there is a reluctance to challenge the claims of communities or to limit their demands in the name of safeguarding equality. We also see an essentialising of difference in these claims. The personal laws of religious communities are presumed to form a coherent, static, unified body of rules. Any scrutiny in the name of safeguarding individual rights and guarding against the imposition of ‘internal restrictions’— to borrow Kymlicka’s term—is denied. So also is the possibility of difference or dissent within communities. There is no room for the recognition of more egalitarian interpretations of religious norms and no requirement of a right of exit for those with dissenting views. The limits of one’s rights are defined by one’s religious–cultural membership. Reserving states deny difference in other ways. In the reservations entered by Egypt, Algeria and Morocco to CEDAW, we see an attempt to retain a strict binary division between male and female and a reluctance to blur these categories. In a declaration entered to Article 2 of CEDAW, Morocco expresses its readiness to comply with the provisions of this article, provided that they do not conflict with the Moroccan Personal Code, which, it states, derives primarily from the Shari’ah and accords women human rights that differ from men, so as to ‘strike a balance between the spouses’, and, ‘to preserve the coherence of family life.’81 At the time of drafting the Convention, Morocco expressed similar concerns, arguing that to guarantee equal rights for women and men in marriage and family relations would affect the ‘psychic and moral balance of children’.82 Egypt’s reservation to 79 As with CEDAW, the issue of reproductive rights and the right to have access to safe abortions remains disputed. The 9th preambular paragraph of the CRC refers to the child’s right to legal protection before as well as after birth, reiterating the 3rd preambular paragraph to the Declaration on the Rights of the Child. The Working Group on the Convention included an interpretive statement in the travaux preparatoires, to the effect that the 9th preambular paragraph did not have any bearing on the definition of the child as a human being in Art 1 of the Convention. It also rejected a draft savings clause providing that nothing in the Convention should affect any provisions more conducive to the rights of the child before as well as after birth. The definition of a child continues to remain controversial. See, eg, Reservations and Declarations entered by Argentina, Ecuador, Guatemala, The Holy See, available at www. unhchr.ch/html/menu3/b/treaty15_asp.htm. 80 J Rawls, The Law of Peoples (Cambridge, MA, Harvard University Press, 1999). 81 For the full text of the reservation, see UN Treaty Collection, above n 2. 82 See generally: N Burrows, ‘The 1979 Convention on the Elimination of All Forms of Discrimination Against Women’ (1985) Netherlands International L Rev 419, 450. See also L Rehof, Guide to the Travaux Preparatories of the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (London, Martinus Nijhoff, 1993).

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Article 16 of CEDAW states that the Islamic Shari’ah accords women rights that are, ‘equivalent to those of their spouses so as to ensure a just balance between them.’83 Underpinning these reservations is an appeal to the ideology of ‘separate spheres’,84 and an attempt to essentialise the binary divisions between male and female. Similar appeals have been made by the Holy See. In its reservation to the Beijing Declaration and Platform for Action, the Holy See invokes Pope John Paul II’s ‘Letter to Women’, which emphasises the complementarity of gender roles and the specificity of being male or female.85 Preserving this specificity is necessary, the Holy See argues, to ensure the ‘well-being’ and the ‘true advancement of women.’86 A concern to maintain strict binary divisions between male and female is also evident in the definition of gender included in the Rome Statute of the International Criminal Court at the behest of the Holy See and other states.87 The current Pope, Benedicte XVI, previously served as prefect of the ‘Congregation for the Doctrine of the Faith’ and is widely credited with reinforcing conservative views on gender and sexuality throughout the teachings of the Roman Catholic Church and the politics of the Holy See within the UN. In carrying out its monitoring role, the CEDAW Committee has adopted an increasingly universalistic stance, challenging religious–cultural claims made by states. It has highlighted the political nature of appeals to Islam made by reserving states and the possibility of more egalitarian interpretations

83

Above n 2. See also the reservation entered by Iraq to Art 2, which provides: Approval of and accession to this Convention shall not mean that the Republic of Iraq is bound by the provisions of Art 2, paras (f) and (g) or Art 9, para 1and 2, nor of Art 16 of the Convention. The reservation to this last-mentioned article shall be without prejudice to the provisions of the Islamic Shariah according women rights equivalent to the rights of their spouses so as to ensure a just balance between them. Iraq also enters a reservation to Art 29, para 1, of this Convention with regard to the principle of international arbitration in connection with the interpretation or application of this Convention. See objections entered by: Germany; Israel; Mexico; The Netherlands; Sweden. 84 One of the most well-known expressions of the separate spheres ideology is to be found in Justice Bradley’s concurring opinion in the US. Supreme Court decision, Bradwell v Illinois 83 US 130 (1873), 141: ‘Civil law as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman’, and again, the ‘paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother.’ 85 In its written statement on the Declaration and Platform for Action, the Holy See also refers to the ‘well-being of women’ and the ‘true advancement of women.’ Beijing Declaration and Platform for Action, adopted on 15 September 1995, UN Doc A/CONF. 177/20 (1995) and UN Doc A/CONF. 177/20/Add. 1 (1995) 157, ‘Reservations and statements of interpretation’, para 11. 86 Ibid, para 11. 87 See: Art 7(3) of the Rome Statute for an International Criminal Court: ‘For the purpose of this Statute, it is understood that the term ‘gender’ refers to the two sexes, male and female, within the context of society. The term ‘gender’ does not indicate any meaning different from the above.’

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of Islam, giving support to subaltern voices within reserving states. This universalistic stance can also be seen in the Committee’s General Recommendation No 21, adopted in response to the number of reservations to Article 16. The Recommendation affirms the status of Article 16 as a core principle of CEDAW and calls on states to ‘resolutely discourage’ any notions of gender inequality that are rooted in private law or custom, and to ‘gradually progress’ to a stage where reservations will be withdrawn.88 Rejecting fundamentalist or other extremist views that encourage a return to ‘old values and traditions’, the Committee concluded that reservations to Article 16, whether lodged for traditional, religious or cultural reasons, were incompatible with the Convention and therefore impermissible.89 Not all feminists, however, support this universalistic stance. Feminist theory has shifted away from universalistic claims. The reservations dialogue poses a dilemma for feminism. It raises again the question of how feminism should respond to assertions of cultural difference that deny the universal validity of human rights norms. Cultural relativism would seem to be incompatible with feminism, given its denial of critical reflexivity and the priority it accords to cultural claims. Yet, despite these difficulties, feminists continue to challenge the universalistic discourse of human rights in the name of religious, cultural and other differences. The strongest challenge to date has come from postmodern anti-essentialist feminists. C. FEMINISM, ANTI-ESSENTIALISM AND THE ‘DEFENCE OF CULTURE’

Diane Otto argues that the assertion of universalism over relativity merely reinforces the polarization of the debate, rather than transforming it.90 The contestation in Beijing about religious–cultural differences was, she says, a contest about, ‘which masculinist standard should be recognized as dominant.’91 Instead of polarising the debate in this way, she urges us to recognise the ‘productive avenues’ that post-structural insights can offer to feminism. In particular, she suggests that a commitment to multiplicity and anti-discipline could lead us to ‘non-hierarchical conceptions of cultural specificity and diversity.’92 Otto’s arguments echo those of post-modern, anti-essentialist feminism.93 For the anti-essentialist feminist, 88

Above n 54. Ibid, para 17. 90 D Otto, ‘A Post-Beijing Reflection on the Limitations and Potential of Human Rights Discourse for Women’, Women and International Human Rights Law, vol 3 (New York, NY, Transnational, 1999) 115, 135. 91 Ibid. 92 Ibid. 93 See: TE Higgins, ‘By “Reason of their Sex”: Feminist Theory, Postmodernism and Justice’ (1995) 80 Cornell L Rev 1536; B Stark, ‘Women and Globalization: The Failure and Postmodern Possibilities of International Law’ (2000) 33 Vand J Transnat’l L 503. 89

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both universalism and cultural relativism fall prey to the essentialist trap. The universalist is accused of presuming that all human persons share certain essential ahistorical characteristics. The cultural relativist is accused of relying on essentialist notions of cultural difference and failing to recognise the complexities of culture. We see this essentialising of difference in the claims made by reserving states to justify opting out of international human rights standards. To avoid this trap, feminism is urged to enter into a partial alliance with the cultural relativist. The strengths of each are identified as being their attention to difference and to the local, concrete contexts within which emancipatory struggles take place. Anti-essentialist feminism shares the cultural relativist’s concern with difference. However, this concern is taken further, in an attempt to recognise both intra-cultural as well as inter-cultural differences.94 A number of questions remain to be answered, however: Firstly, what exactly does the ‘essentialist trap’ consist of ?; Secondly, does universalism necessarily fall prey to this trap? and; Thirdly, does anti-essentialism leave us with the resources necessary for a critical and emancipatory feminist movement? Diana Fuss defines essentialism as ‘a belief in the real, true essence of things, the invariable and fixed properties that define the “whatness” of a given entity’.95 Universalist theories explaining the discrimination and subordination of women stand accused of relying on an essentialist notion of the subject ‘woman’. Essentialism presumes ‘that those characteristics defined as women’s essence are shared in common by all women at all times: it implies a limit on the variation and possibilities of change.’96 This critique of essentialism is raised as a challenge to international human rights standards. Tracy Higgins argues that the assumption of the universality of human rights standards, fails to respect cross-cultural differences. She appears to equate universalism with essentialism. She argues that much of feminist activism at the international level has been premised on two assumptions, both of which, she says, may be characterised as essentialist, ‘First, that women share types of experiences and are oppressed in particular ways as women; and second, that these experiences are often different than those of men.’97 Despite her anti-essentialist stance, Higgins recognises the power of these arguments, and their success in expanding the scope of international human rights law. The recognition of forced pregnancy, domestic violence and female genital mutilation as forms of persecution and as violations of 94 See: TE Higgins, ‘Anti-essentialism, Relativism and Human Rights’ (1996) 19 Harvard Women’s Law Journal 89. 95 D Fuss, Essentially Speaking: Feminism, Nature and Difference (New York, Routledge, 1989) xi. 96 E Grosz, ‘Conclusion; A Note on Essentialism and Difference’ in S Gunew, (ed), Feminist Knowledge: Critique and Construct (London, Routledge, 1990) 332, 334. 97 T Higgins, above n 94, p 92.

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international human rights standards is due largely to the success of feminist movements in organising around gender-specific or gender-related forms of harm. The recognition of gender-based persecution as a crime against humanity,98 acknowledges that women as a group may be targeted in specific ways because of their gender—as we have seen in recent times, in Darfur, in Afghanistan, in Rwanda and in Bosnia-Herzegovina. Higgins continues, however, to dismiss international human rights standards as essentialist, suggesting a reluctance to distinguish between universalism and essentialism. At other times, Higgins and other anti-essentialist feminists appear to be criticising not universalism per se, but rather pseudo-universalism. Feminist essentialism, Higgins argues, has provided a foundation for Western feminists’ expansion of their political vision, through a reshaping of the international human rights agenda. She argues that this vision has been defined by relatively privileged women’s experiences.99 Excluded voices, however, return to haunt the integrity and the unity of the feminist we.100 Higgins’s criticism, however, can be equally interpreted as a call for a more inclusive human rights movement. The call to inclusion suggests the need for a transformation and expansion of international human rights standards, rather than a shift away from universalism per se. Much of the anti-essentialist critque is based on the assumption that the universalist necessarily relies on truths that are eternally fixed and are outside human experience and history. Higgins argues that the truth claims that emerge from universalist moral theories are understood as ‘substantially independent of history, individual choices, and human experience.’101 This argument, however, assumes that universalism cannot move beyond the troubled legacies of Enlightenment thinking. It assumes a lack of openness and dynamism within human rights law. Anti-essentialist feminists invoke situated social criticism and strategic essentialism’—defined as a contextual approach to the ‘politics of essentialism’.102 But are appeals to ‘situated social criticism’ and ‘strategic essentialism’ enough? Can they sustain a critical stance towards inherited

98

Rome Statute, Art 7(1)(h) includes: Persecution against any identifiable group or collectively on political, racial, national, ethnic, cultural, religious, gender as defined in para 3, or other grounds that are universally recognized as impermissible under international law in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court When committed as part of a widespread and systematic attack against a civilian population, with knowledge of the attack. 99 T Higgins, above n 94, p 102. 100 Ibid. 101 Ibid, p 95. 102 bell hooks summarises the argument for strategic essentialism, b hooks, ‘Post-modern Blackness’ in T Higgins, Yearning: Race, Gender, and Cultural Politics (Boston, South End, 1990) 29.

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traditions, practices and beliefs? Can they provide a normative basis on which to challenge reserving states that seek to opt out of international human rights standards? Advocates of situated social criticism adopt ‘insider’ methodologies, invoking internal rather than external criteria of legitimation to support their claims.103 We see examples of such methodologies in the work of Shaheen Sardar-Ali,104 Fatima Mernissi,105 Catholics for a Free Choice.106 These methodologies, however, do not exempt feminists from the responsibility of normative justification. Cultures and traditions consist of many competing sets of narratives. The problem for feminism is how to choose between competing narratives and how to justify that choice against those who would deny the validity of the feminist agenda. If feminism is to propose an emancipatory agenda, an appeal to norms that claim a universal legitimacy cannot be avoided. There may be times when internal critiques are not enough, when the possibility of radical social criticism requires us to move outside of, or beyond, the constitutive norms of particular communities. This is not a purely instrumentalist or strategic step, however. It is one that requires normative justification. For Barbara Stark, appealing to international human rights standards is one of a ‘virtually endless’ range of ad hoc strategies. International human rights law is a kind of ‘superstore’, of treaties, customs, institutions, and norms.107 This suggests, however, that the choice is an arbitrary one—one that can claim no greater normative justification than the choices made by states in defence of domestic jurisdiction and state sovereignty. If we accept this argument, claims to the greater good of feminism become, to paraphrase Richard Rorty, no more than claims that ‘mammals are preferable to reptiles, or Aryans to Jews’.108 Feminist claims to gender equality become just one of many competing and often conflicting claims. Feminism is left without the resources necessary to challenge the kinds of claims made by reserving states. Egalitarian interpretations of Islam or Roman Catholicism have no more claim to legitimacy than orthodox interpretations that seek to limit and constrain women’s human rights.

103

See: M Sunder, ‘Piercing the Veil’ (2003) 112(6) Yale Law Journal 1399. See: SS Ali, Gender and Human Rights in Islam and International Law (The Hague, Kluwer, 2000). 105 F Mernissi, The Veil and the Male Elite: A Feminist Interpretation of Women’s Rights in Islam (MA, Addison Wesley, 1991). 106 Information on the work of Catholics for a Free Choice is available at: http://www. cath4choice.org. See also D Buss and D Herman, Globalizing Family Values: The Christian Right in International Politics (Minneapolis, MN, University of Minnesota Press, 2003). 107 B Stark, ‘Women and Globalization: The Failure and Post-modern Possibilities of International Law’ (2000) 33 Vand J Transnat’l L 503, 508. 108 See: R Rorty, Contingency, Irony and Solidarity (Cambridge, CUP, 1989) 10. 104

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D. A DUAL-TRACK APPROACH TO THE PROBLEM OF RESERVATIONS

‘The negotiation of complex cultural dialogues in a global civilization is now our lot.’109 So, concludes Seyla Benhabib. Reservations to CEDAW, raise all the difficulties of such a complex dialogue. For feminism, they raise the question of how to negotiate particularistic claims that seek to deny the universal legitimacy of human rights norms. Yielding to the reservations entered by states returns us to a state-centred conception of international law, leading to conflicts with the universalistic claims of human rights norms. It also leaves women within reserving states vulnerable to the claims of particular communities. While states claim a right to opt out, women within reserving states may not have any such right of exit. International human rights law has expanded to reach domains previously labelled as private, and solely within the domestic jurisdiction of the state. This expansion, however, has met with assertions of state sovereignty and has come into conflict with claims to self-determination and the sovereign equality of all states. The reservations dialogue surrounding CEDAW highlights the willingness of states to hide behind the rhetoric of a politics of recognition and to invoke religious–cultural differences so as to limit and constrain the pursuit of gender equality. This conflict, of course, is not unique to debates on women’s human rights. Globalisation has led, not to a cosmopolitan order, but to increasing conflicts between the universalistic principles of human rights and claims to self-determination of sovereign collectivities. As consciousness of international human rights standards develops world-wide, particularistic identities rooted in religion, ethnicity or nationhood, are asserted with increasing ferocity. Gender identities have become intertwined with national identities, leading to a kind of ‘trafficking in women’. We see this in the reservations dialogue surrounding CEDAW. States sign up to and ratify the Convention, but assert their distinct claims to difference by privatising women’s human rights claims that threaten to redefine the boundaries of public and private, and/or of nationhood. Reserving states frequently invoke a singular ‘ethnos’ to support their claims to a distinct national identity. The rise of identity politics and the discourse of postcoloniality gives support to such claims, particularly when entered by newly independent states. However, identity politics also leads to fragmentation within collectivities. Every nationalist movement has within itself a marginalized other. Appeals to a singular ‘ethnos’ become more difficult to sustain once we recognizes the conflicting claims that arise within communities.

109 S Benhabib, The Claims of Culture: Equality and Diversity in the Global Era (Princeton, NJ, Princeton University Press, 2002).

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Anti-essentialist feminism cannot assist us in a process of reconstructing human rights law. Neither does the orthodox treaty law response to reservations. A strict application of the ‘object and purpose’ test can lead to the severance of reservations deemed incompatible with the treaty. However, this does little to address the normative conflicts that arise in claims made by states and other collectivities. Legal regulation, in itself, does not capture the need for an ‘enlarged mentality’—what Benhabib refers to as, the broadening of our horizons, through political and moral struggle. While legal regulation may provide us with a modus vivendi between states, it is unlikely to lead to an acceptance and effective enforcement of human rights norms at national level. Rather than remaining within the confines of treaty law, the reservations dialogue could benefit from the insights of discourse ethics, as applied to the process of reconstructing human rights law. The dual-track approach to cultural conflicts draws on deliberative models of democracy and takes us beyond the limits of legal regulation, introducing the idea of an expanded moral–political dialogue taking place at international, national and local levels. We see the beginnings of such a dialogue in the CEDAW Committee’s constructive engagement with reserving states. In commenting on Egypt’s reports submitted under CEDAW, the Committee calls on Egypt to withdraw its reservations to Articles 2, 9(2) and 16, and specifically acknowledges the efforts of the Egyptian National Council for Women in also seeking a withdrawal.110 The appeal to the local, though rooted in international standards, gives added support to this call and recognizes the importance of a cultural mediation of human rights norms. It also seeks to begin a process of dialogue at national level, drawing on the expanded scope of international human rights standards to support this process. We see a similar attempt at constructive engagement with Libya. In its comments on Libya’s initial report, the Committee called on Libya to withdraw its general reservation to the Convention, to take a leading role in its interpretation of the Shari’ah and to review its interpretation of the Quran in the light of the Convention’s prohibition of discrimination.111 In the Committee’s view, the evolution of the Shari’ah in Libya had come to a standstill. The Committee called on Libya to proceed to an interpretation of the Shari’ah that was ‘permissible’ and that did not ‘block the advancement of women’.112 The possibility of more egalitarian interpretations of Islam is recognised and the attempt by the State to block the transformation of domestic law is denied. Again we see the Committee attempting to open up a process of dialogue around domestic laws, and, in particular,

110 Concluding Observations of the Committee on the Elimination of Discrimination Against Women: Egypt, 2 February 2001, UN Doc A/56/38, paras 312–58. 111 Concluding Observations of the Committee on the Elimination of Discrimination Against Women: Libyan Arab Jamahiriya, 12 April 1994, UN Doc A/49/38, paras 126–85. 112 Ibid, para 132.

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around the requirements of the Shari’ah. The possibility of transformation, of course, requires an openness to change on the part of the State and an equality of participation in the processes of change and reform. This is where the limits laid down by universal human rights principles come into play. Those limits have played an important role in challenging the domestic laws of states on reproductive rights. Although CEDAW does not include any reference to abortion, the Committee has examined the restrictive abortion laws in many states, drawing on developments within international human rights standards and building on the practice of other treaty bodies, such as the UN Human Rights Committee.113 CEDAW expressed concern about the ‘inadequate recognition and protection of the reproductive rights of women in Chile’ and urged the Government ‘to consider review of the laws relating to abortion with a view to their amendment.’114 In commenting on reproductive health in Argentina, the Committee expressed concern that maternal mortality and morbidity due to childbirth and abortion remained high and recommended that legislation criminalizing abortion should be reviewed.115 The dual-track approach sets out the core principles defining the limits of any just multicultural arrangement: egalitarian reciprocity; voluntary selfascription; and right of exit. These limits can also be applied to the reservations dialogue. Reservations that deny women a right to participate in the process of defining and delimiting human rights norms would always fail the tests laid down by the dual-track approach. Such reservations would include those entered by Kuwait, for example, to the CCPR, denying women equal rights to participate in electoral processes.116 Reservations by states, such as those entered by Israel, Singapore and India appealing to the rights of religious communities would be subject to these limits. Ultimately, of course, if a woman consents to the application of religious laws that deny her equal rights to custody of her children or to inheritance, international human rights law cannot deny her this option. It can, however, question whether she is freely consenting to the application of those laws. It can also question whether a woman’s membership in a particular religious or cultural community is voluntary, based on self-identification and self-ascription,

113 See Report of the Committee on the Elimination of Discrimination Against Women on its 21st Session, UN GAOR, 54th Sess, Supp No 38, Pt II, 202–35, UN Doc A/54/38/Rev.1 (1999) (concluding observations on Chile). 114 Ibid, p 228. 115 See also Report of the Committee on the Elimination of Discrimination Against Women on its 17th Session, UN GAOR, 52nd Sess, Supp No 38, Pt II, 273–321, UN Doc A/52/38/Rev.1 (1997) (Concluding observations on Argentina) paras 304 and 319. 116 Above n 77. Kuwait has recently reformed its electoral laws. A bill granting women the right to vote and to run for Parliament for the first time was adopted on 16 May 2005, by a 35–23 vote in parliament with one abstention. However, an article included in the bill requires any female politician or voter to abide by Islamic law.

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and whether a meaningful right of exit is available to a woman who contests the norms of her community.117 In this way, a state’s right to opt out of human rights treaties is limited. A state cannot simply appeal to a policy of non-interference in the laws of religious communities or to the dominant religious–cultural norms of the state. Creating the conditions necessary for a deliberative democracy requires an uncoupling of particularistic conceptions of the good life from the norms and institutions of the state. It requires openness to change and recognition of dissenting voices within collectivities. This, in turn, requires a shift from ‘ethnos’ to ‘demos’ and a shift away from a state-centred conception of international law. Reserving states that appeal to the defence of culture or to ‘domestic jurisdiction’ are resisting the shift from ethnos to demos, denying both the fragmentation and the interdependence that comes with increasing globalisation. A deliberative model of democracy brings with it a cosmopolitan conception of international law, positing the individual simultaneously as a world citizen and as a citizen of the state, transforming the state into a mere agency for the protection and promotion of rights.118 Once we begin to think of the state in this way, the reservations entered by states to human rights treaties can no longer claim a firm foundation in international law. Imposing limits on states’ rights is an inevitable consequence of moving towards a cosmopolitan world order in which the universal legitimacy of human rights norms is recognized. Rights are no longer tied to nationality or to ethno-cultural identity. Disaggregated citizenship and cosmopolitanism, the concern for the world as if it were one’s polis, is furthered by recognition of the universal legitimacy of rights claims.119 E. CONCLUDING REMARKS

When subject to greater scrutiny, we see that the concern of reserving states to preserve a space for the ‘other’ often stops at the level of the collectivity, whether it is the sovereign state, the nation or the religious community. Intra-cultural or religious differences within collectivities are denied, as is the right to religious freedom. If we begin instead from a presumption of difference, it is no longer permissible for states to appeal to or to invoke a singular ‘ethnos’ to justify opting out of international human rights standards. A deliberative model of democracy, applied at international and national levels, draws instead on the idea of a demos, unbounded by religious–cultural

117

S Benhabib above n 109, pp 131–32. J Habermas, Postnational Constellation: Political Essays (Cambridge, Polity Press, 2001) 181. See further above ch 5. 119 On the concept of disaggregated citizenship, see: S Benhabib, The Rights of Others: Aliens, Residents and Citizens (Cambridge, CUP, 2004) 174–75. 118

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norms or national boundaries. Reservations seeking to limit the rights of citizens within the confines of particular communities can no longer claim any legitimacy once this shift is made. The dilemmas of difference that arise in international human rights law are mirrored in debates within many nation-states. An added complexity arises when the negotiation of difference is combined with the nascent processes of nation building. Where national identity is defined negatively as that which the nation-state is not, any challenge to this definition threatens to fragment and undermine the fragile unity of the nation-state. Against this background, gender becomes a contested site. As the bearers of culture and repository of traditions, women bear the burden of preserving the traditions and beliefs that underpin the nation’s claim to a distinct identity. The following chapters examine cultural conflicts that have arisen at national level in Ireland, Pakistan and India, states that share common constitutional traditions and that each have resisted the application of human rights norms to domestic sphere, with particular repercussions for reproductive rights and relations within the family.

7 Debating Gender in Ireland (1): Family Values

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by feminists in Ireland in challenging religious–cultural claims, mirror those encountered by the international human rights movement. Both at national and international levels, the deference paid to cultural claims reveals a gendered division between the public and the private and a willingness to ‘hive off’ the private sphere from public tests of justice and rights. In Ireland, the family, sexuality and reproductive rights have fallen within the boundaries of the private. Claimed as being ‘essentially within the domestic jurisdiction of the state’,1 they have served to underpin the nation-state’s claim to a distinct cultural identity. With the drafting of the 1937 Constitution, the ideology of separate spheres that had come to dominate post-independence politics became entrenched in Irish law.2 A conservative Roman Catholic ethos permeated the constitutional text.3 For many years, it was to constrain the interpretation of fundamental rights, limiting their transformative potential and further entrenching the gendered divisions between public and domestic HE DIFFICULTIES ENCOUNTERED

1 Art 2(7), Charter of the United Nations, adopted 26 June 1945, entered into force 24 October 1945, as amended by GA Res 1991 (XVIII) 17 December 1963, entered into force 31 August 1965 (557 UNTS 143); 2101 of 20 December 1965, entered into force 12 June 1968 (638 UNTS 308); and 2847 (XXVI) of 20 December 1971, entered into force 24 September 1973 (892 UNTS 119). 2 See: MG Valuilis, ‘Power, Gender and Identity in the Irish Free State’ in J Hoff and M Coulter, (eds), Irish Women’s Voices Past and Present (Bloomington, IN, Indiana University Press, 1995) 117. 3 See, A Connolly, ‘The Constitution’ in A Connolly, (ed), Gender and the Law in Ireland (Dublin, Oak Tree Press, 1993) 4. The role of the Roman Catholic hierarchy in Ireland in drafting the 1937 Constitution has been the subject of much historical commentary. See: N Browne, ‘Church and State in Modern Ireland’ in P Twomey and T Murphy, (eds), Ireland’s Evolving Constitution 1937–1997 (Oxford, Hart Publishing, 1998) 41; DM Clarke, Church and State: Essays in Political Philosophy (Cork, Cork University Press, 1984); D Keogh, ‘Church, State and Society’ in B Farrell, (ed), De Valera’s Constitution and Ours (Dublin, Macmillan, 1988) 103; D Keogh, Ireland and the Vatican: The Politics and Diplomacy of Church–State Relations 1922–1960 (Cork, Cork University Press, 1995); D Keogh, The Vatican, The Bishops and Irish Politics 1919–1939 (Cambridge, CUP, 1986).

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spheres.4 At the heart of conservative Catholic teaching is the uni-duality of gender identities, a teaching that presumes the binary opposition of male and female and the complementarity of gender roles.5 In Ireland, transgressing those boundaries also meant transgressing the boundaries of nationstate. As a result, feminist movements in Ireland have been accused of undermining Ireland’s inherited traditions and the values of community and solidarity that underpin those traditions.6 The demarcation of gender roles in Ireland has always been intertwined with debates on national identity.7 In a struggling nation state, scarred by the trauma of partition and civil war, gender trouble could not be countenanced. The overwhelming concern to define Ireland as ‘not England’ led to a search for distinguishing marks of identity, among these, the Roman Catholic religion adhered to by the majority of Irish people.8 This search for defining attributes of the nation is not unique to Ireland. As Iris Young points out, nationalist ideologies have always tended to define their groups in either/or terms.9 The nation is conceptualised as strictly bounded between insiders and outsiders, as nationalists struggle to define attributes of national identity or character that all members share. In Ireland, this search for homogeneity and national unity, transformed Irish republicanism into a ‘conservative [...] Catholic nationalist movement.’10 This transformation was to have a significant impact on women’s citizenship in the fledgling nation-state. 4 The Roman Catholic Church did not have a monopoly on the ideology of separate sphere. As James McMillan suggests in the case of 19th century France, the belief that a woman’s place lay in the home was widely held by the Catholic Church and by those who were the church’s most vocal opponents: anti-clerical republicans, anarchists, and leaders of the labour movement. See ME Daly, ‘“Oh, Kathleen Ni Houlihan, Your Way is a Thorny Way!”: The Condition of Women In Twentieth-century Ireland’ in A Bradley and MG Valiulis, (eds), Gender and Sexuality in Modern Ireland (Amherst, MA, University of Massachusetts Press, 1997) 102, 105. 5 See, for example, Pope John Paul’s, Letter to Women, available at: http://www.vatican.va /holy_father/john_paul_ii/letters/documents/hf_jp-ii_let_29061995_women_en.html, as viewed on 17 May 2002, and the Holy See’s reservation to the Beijing Declaration and Platform for Action, Beijing Declaration and Platform for Action, adopted on 15 September, 1995, UN Doc. A/CONF 177/20(1995) and UN Doc. A/CONF 177/20/Add.1 (1995) 157; ‘Reservations and statements of interpretation’, para 11. 6 See generally C Coulter, ‘“Hello Divorce, Good-bye Daddy”: Women, Gender and the Divorce Debate’ in A Bradley and MG Valiulis, (eds), Gender and Sexuality in Modern Ireland (Amherst, MA, University of Massachusetts Press, 1997) 275. 7 Y Scannell, ‘The Constitution and the Role of Women’ in B Farrell, (ed), De Valera’s Constitution and Ours (Dublin, Gill & Macmillan, 1988) 123; A Bradley and MG Valiulis, (eds), Gender and Sexuality in Modern Ireland (Amherst, MA, University of Massachusetts Press, 1997); A Smyth, (ed), Irish Women’s Studies Reader (Dublin, Attic Press, 1993); H Sheehy-Skeffington, ‘Bean na hEireann’ in M Ward, (ed), In their Own Voice: Women and Irish Nationalism (Cork, Attic Press, 1995) 35; C Coulter, The Hidden Tradition: Feminism, Women and Nationalism (Cork, Cork University Press, 1993). 8 D Kiberd, Inventing Ireland: The Literature of the Modern Ireland (London, Vintage, 1996). 9 IM Young, Inclusion and Democracy (Oxford, OUP, 2000) 252. 10 N Browne, ‘Church and State in Modern Ireland’ in P Twomey and T Murphy, (eds), Ireland’s Evolving Constitution 1937–1997 (Oxford, Hart Publishing, 1998) 41.

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In 1995, the Supreme Court described Ireland as a pluralist state and rejected appeals to Roman Catholic doctrine as a justificatory basis for human rights claims.11 This shift towards pluralism in legal discourse was given an added momentum by the Good Friday Agreement, 1998,12 and the constitutional amendment, inserting a new Article 3 into the Constitution, recognizing ‘the diversity of identities and traditions on the island of Ireland.’13 Against the background of these changes, the state and the judiciary could no longer assert a singular ‘ethnos’ to support their claims. The shift within legal discourse, however, has met with opposition from Christian right movements. Debates concerning the family and reproductive rights form the bedrock of the Christian right’s backlash against Ireland’s tentative steps towards a pluralist, democratic state.14 Concerned to preserve the conservative ethos that permeates the 1937 Constitution, they have portrayed feminism and human rights discourse as a threat to Ireland’s sovereignty, and with it a threat to Ireland’s ‘pro-life’ and ‘pro-family’ traditions. This ‘othering’ of feminist discourse continues in contemporary debates on reproductive rights and women’s roles within the family. In response, feminist movements in Ireland have sought to move beyond the constraints of particularistic, cultural discourse. Today, as in the early stages of nation building, however, the challenges raised by feminism have been perceived, not only as hostile to religious–cultural beliefs and practices, but to the very ties that bind the nation-state. These struggles reveal the necessity of a commitment to the universalistic principles of human rights, if feminism is to retain its critical, emancipatory agenda. Without this commitment, feminist claims risk losing out to competing cultural claims that seek to preserve a link between the state and a singular ethnos—in Ireland, one that is rooted in conservative Roman Catholic traditions. The shift from ‘ethnos’ to ‘demos’ 11 Re Art 26 and the Regulation of Information (Services Outside the State for the Termination of Pregnancies) Bill [1995] 1 IR 1. 12 Agreement reached in the Multi-party Negotiations, 10 April 1998 (the Good Friday Agreement), reproduced at (1998) 37 ILM 751. See generally: C Harvey and S Livingstone, ‘Human Rights and the Northern Ireland Peace Process’ [1999] European Human Rights Law Review 162; CJ Harvey, (ed), Human Rights, Equality, and Democratic Renewal in Northern Ireland (Oxford, Hart Publishing, 2001); C Harvey, ‘Governing After the Rights Revolution’ (2000) 27 Journal of Law and Society 61. 13 The full text of Art 3(1) (as amended) reads:

It is the firm will of the Irish Nation in harmony and friendship, to unite all the people who share the territory of the island of Ireland in all the diversity of their identities and traditions, recognising that a united Ireland shall be brought about only by peaceful means with the consent of a majority of the people, democratically expressed in both jurisdictions in the island. Until then, the laws enacted by the Parliament established by this Constitution shall have the like area and extent of application as the laws enacted by the Parliament that existed immediately before the coming into operation of this Constitution. 14 See: National Union of Mothers of Ireland, Submission to the Forum on Europe, 3 December 2001; Neart, Beijing + 5: Alternative Report for Ireland, 26 May 2000, Beijing + 5: Submission to the National Forum on Europe, 1 December 2001; R Wilkins, ‘International Criminal Court: The Dangers’ [2001] Family Solidarity 5.

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in recent debates on fundamental rights in Ireland has opened up more space for feminist debate, yet a reluctance to yield to the transformative potential of rights discourse remains. This reluctance is evident, in particular, in debates surrounding the role of the family, women’s roles within the family, and reproductive rights. A. GENDER, FAMILY AND NATION-BUILDING

The rise of romanticism in the late 19th century had a significant impact on Irish nationalism. By the late 19th century, culture was increasingly relied on as a marker to divide peoples along national lines. There was also a growing interest in the ‘indigenous’ cultures of colonised nations. British social critics drew attention to the souless, dehumanising quality of urban industrialised life, which they contrasted with the humanity and spirituality of ‘primitive’, usually rural, peasant cultures.15 This belief in the moral superiority of the peasant culture underpinned the Irish cultural revival in the late 19th and early 20th centuries. For Irish women, it was to prove a double-edged sword. The Proclamation of the Irish Republic in 1916 promised an independent state guaranteeing equality for all women and men. Irish republican and socialist, James Connolly, spoke of an independent republic free of the double burdens of colonialism and patriarchy. In a subject nation, Irish women, he said, were the ‘slaves of slaves.’16 Those double burdens were to continue, however, to hinder the pursuit of feminist agendas in post-independence Ireland. Connolly’s republican and socialist vision was sacrificed to the immediate needs of nation-building. On 7 January 1922, all six female deputies of Ireland’s first Dáil (Parliament) voted against the Anglo–Irish Treaty, refusing the oath of allegiance to the British Crown and the partition of Ireland into North and South. All six joined those opposing the foundation of the ‘Free State’ in walking out of the Dáil. Their symbolic ‘walk-out’ was to mark the beginning of an estrangement from the nascent nation-state.17 As the newly independent state sought recognition as a distinct nation-state, there was little room for a feminist politics that threatened to fragment its unifying ideology. The Irish nation had long been defined by mythical female figures, Yeats and Gregory’s Cathleen ni Houlihán being one of the most well-known

15 See generally: A Kuper, Culture: The Anthropologist’s Account (Cambridge, MA, Harvard University Press, 1999); D Kiberd, above n 8; D O Giollain, Locating Irish Folklore: Tradition, Identity and Modernity, (Cork, Cork University Press, 2000); JR Paul, ‘Cultural Resistance to Global Governance’ (2000) 22 Michigan Journal of International Law 1, 6–7. 16 See: M Luddy, Hannah Sheehy Skeffington (Dublin, Historical Association of Ireland, 1995). 17 See: M Ward, Unmanageable Revolutionaries: Women and Irish Nationalism (London, Pluto, 1983).

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personifications of the nation-woman.18 However, as the nation came to be defined as woman, political activity came to be defined as peculiarly masculine. Though many women participated in the war of independence—as fighters, messengers, leaders—they were to find themselves confined to hearth and home in an independent Ireland. The glorification of peasant culture brought with it a kind of homage to motherhood and the virtues of the Irish peasant woman. The representation of Ireland as mother and the nation as a family were established signifiers of community and common lineage.19 The largely middle-class Gaelic League, founded in 1893, to promote Irish literature and culture, idealised mother and home as ‘the repository of spiritual, moral and affective values’.20 Women were constructed as the bearers and cultural reproducers of the future nation. For the Gaelic League, the domestic sphere was the site of a nationalist pedagogy, a pedagogy that conflated women’s roles with motherhood and quiet domesticity. Mary Butler, author of the Gaelic League pamphlet, Women and the Home Language, contrasted the ‘gentle, low-voiced women’ inculcating nationalism at the fireside with the ‘shrieking viragoes or aggressive amazons’ who seek a public platform.21 This demonising of feminist activists often coincided with a dismissal of their nationalist credentials. The struggle for women’s franchise in Ireland highlights the tensions between nationalist politics and the pursuit of a feminist agenda.22 The Irish Parliamentary Party in Westminister had opposed the extension of suffrage to women on a number of occasions. For that reason, the Irish Women’s Franchise League (IWFL) and the women’s suffrage movement in England, both opposed Home Rule. For the Home Rule party, self-determination required a challenge only to national boundaries. Gendered divisions between public and domestic spheres would continue with women denied equal rights to political participation. This created difficulties for the IWFL, who now appeared to be aligning themselves with a movement that proclaimed itself opposed to home rule for Ireland. When the adoption of the Representation of the People Act, 1918 granted a limited right of suffrage to women, the Irish Parliamentary Party and the Ulster Unionists both tried, unsuccessfully, to oppose the extension of the Act to 18 ‘Cathleen Ni Houlihán’ is one of WB Yeats’s most popular poems. It is now accepted that it was in fact co-written by his patron, Lady Gregory. See generally: D Toomey, (ed), Yeats and Women (Basingstoke, Macmillan, 1997). 19 A Quinn, ‘Cathleen Ni Houlihan Writes Back: Maud Gonne and Irish National Theatre’ in A Bradley and M Valiulis, (eds), Gender and Sexuality in Modern Ireland (Amherst, MA, University of Massachusetts Press, 1997) 40. For a critique of the feminisation of the nation, see: E Boland, A Kind of Scar (Dublin, Attic Press, 1989). 20 A Quinn Ibid, p 41. See also P Pearce, An Claidheamh Soluis, Editorials, 11 April and 28 November 1903. 21 M Butler, Irish Women and the Home Language: Gaelic League Pamphlets No 6 (Dublin, Gaelic League, 1901). 22 See: M Ward, Hannah Sheehy-Skeffington: A Life (Dublin, Attic Press, 1997).

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Ireland. To counter the challenges to their patriotism, many feminists became complicit in the feminisation of the Irish nation, in the idealisation of Irish womanhood and of life at the hearth and home in rural Ireland. Although leading feminist figures criticised the romanticisation of Irish womanhood, they were not yet ready to displace the myths associated, in particular, with peasant culture. The depiction of the self-sacrificing mother as an emblem of Irish nationalism was to limit the transformative potential of rights discourse for many years to come. This phenomenon, of course, is not unique to Ireland. Subaltern studies have revealed the dominance of a single unifying form of nationalism and the exclusion of many ‘undesirables’ who challenging the unity of the national ‘self’. For women, the post-colonial moment was often a moment of exclusion. In Ireland this moment of exclusion arrived with the enactment of 1937 Constitution, Bunreacht na hÉireann. The 1937 Constitution posed a tragic dilemma for feminists. It marked a break away from the Free State that had been in existence since 1922. For women, however, it failed to fulfil its promise of a liberal rights-based democracy. The Preamble to the Constitution establishes a triumvirate of powers that have served over time to exclude women from Ireland’s social contract.23 The opening phrase proclaims all authority as deriving from the ‘Most Holy Trinity’—Father, Son and the Holy Spirit. It is to that authority that all action of ‘both men and states’ must ultimately be referred. We are reminded of our fathers’ ‘heroic and unremitting struggle’ for independence. Excluded from the ‘centuries of trial’ are the struggles of womens’ groups, many of whom were leading figures in the independence movement. The 1937 Constitution was drafted by the Taoiseach, (Prime Minister), Mr Eamon De Valera, with the assistance of a few senior civil servants and leading figures in the Roman Catholic Church in Ireland and in the Vatican.24 This close consultation with the Catholic hierarchy reflects the importance of its support in securing the legitimacy of any new social contract proposed by the Irish Government. No women participated in the drafting process and as there were only six female representatives in the Dáil (Parliament), the opportunity to comment on the draft Constitution was limited. The influence of the Roman Catholic Church is evident, in particular, in the constitutional chapters on Fundamental Rights and Directive Principles of Social Policy. Although the Roman Catholic Church had supported the Anglo–Irish Treaty of 1921 and the establishment of the Free State in 1922, there was nonetheless a strong feeling that the

23

See: Preamble to the Constitution of Ireland, Bunreacht na hÉireann, 1937. See generally: R Fanning, ‘Mr De Valera Drafts a Constitution’ in B Farrell, (ed), De Valera’s Constitution and Ours (Dublin, Gill & Macmillan, 1988) 33. 24

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1922 Constitution ‘was not a wholly Irish document.’25 It was an imposed document, ‘exotic, unnatural and quite foreign to the native tradition.’26 De Valera was urged by Church leaders to make ‘a definite break with the Liberal and non-christian type of state’ that had been ‘forced upon us by a foreign, non-catholic power.’27 The Jesuit community, in its submission on the constitutional draft noted that the Catholic faith was ‘inseparably bound up with the nation’s history, tradition and culture’, and occupied, ‘a unique and preponderant position’ among religions in Ireland.28 This submission was to form the basis of Article 44, the constitutional provision on religion. Until its revision in 1972, Article 44 recognised the ‘special position’ of the Roman Catholic Church as the guardian of the faith professed by the majority of Irish citizens.29 Contrary to popular belief, however, De Valera did not succumb to all the demands of the Catholic hierarchy in drafting the Constitution.30 The prospect of a theocratic State with an established church was avoided. In addition to recognising the Catholic Church, Article 44.1.3 also explicitly recognised the Jewish congregation and other Christian churches and religious denominations existing in Ireland. However, although the State was never proclaimed a theocracy and never had an established Church, the implicit contract between the Roman Catholic Church and the State constrained the potential of rights discourse to challenge gender hierarchies.31 In the context of the Irish Constitution, women’s roles have been defined as inextricably linked with the family and domestic sphere. The conservative Catholic ethos that permeates much of the constitutional text culminates in the constitutional provisions on the family.32 Article 41 of the Constitution identifies the family as the natural primary and fundamental unit of society, a moral institution possessing ‘inalienable and imprescriptible rights’. The family provides the necessary basis for social order

25 D Keogh, ‘Church, State and Society’ in B Farrell, (ed), De Valera’s Constitution and Ours (Dublin, Macmillan, 1988) 103, 106. 26 See: DeValera Papers (1095/ 2B) cited in D Keogh, Ibid, p 109. 27 Ibid. 28 Ibid, p 110. 29 The 5th amendment to the Constitution, 1972, removed the reference to the Catholic Church’s ‘special position’. This shift was largely a response to the outbreak of conflict in Northern Ireland and the desire to make the Republic more ‘acceptable’ to Northern Protestants. The referendum proposal was approved by almost seven to one. 30 See D Keogh, above n 25. 31 See: D Dooley, ‘Gendered Citizenship in the Irish Constitution’ in P Twomey and T Murphy, (eds), Ireland’s Evolving Constitution 1937–1997 (Oxford, Hart Publishing, 1998) 121. 32 See generally, F Martin, ‘The Family in the Constitution—Principle and Practice’ in P Twomey and T Murphy, (eds), Ireland’s Evolving Constitution 1937–1997 (Oxford, Hart Publishing, 1998) 79.

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and is ‘indispensable to the welfare of Nation and the State’. The family unit protected by the Constitution is the family based on the institution of marriage.33 In Article 41.3.1º, the State pledges to guard the institution of marriage against ‘unjust attack.’ A post-colonial concern to protect a nation under attack is clearly evident in this provision. The protection of the family founded on marriage is intertwined with and integral to the defence of national identity. The 1922 Constitution did not contain any equivalent provision on the family or the institution of marriage. Its inclusion in the 1937 Constitution marks the growing influence of the Catholic Church, and a willingness to claim a distinctively Catholic identity for the nationstate. Including these provisions on the family served also to secure the support of the Catholic Church for De Valera’s process of nation-building. Given the Church’s previous condemnation of De Valera’s anti-treaty stance, this support could not be presumed. A careful process of negotiation and compromise was required if the constitutional project was to be successful.34 In this process of negotiation, De Valera was willing to sacrifice the support of the women’s movement. The leading female figures in the independence movement had supported De Valera in his anti-treaty stance, opposing the oath of allegiance to the Crown and the partition of the state. Although it was not forseen at the time, the partition of Ireland into North and South was to have a significant impact on women’s citizenship in the Free State. The corollary of a ‘Protestant Parliament for a Protestant people’ in the North was presumed to be a ‘Catholic Parliament for a Catholic People’.35 Catholic triumphalism in the South was rooted in the necessity to find something to celebrate in an infant state scarred by political disappointments.36 Adhering to Roman Catholic teaching on issues relating to the family, sexuality and reproductive health, served to distinguish ‘Irish laws and Irish ways’ from the ‘polluting’ forces of English law.37 In Re Howley, Gavin Duffy J referred to the Reformation and subsequent common law jurisprudence as ‘temporary pollutions’ that interrupted and distorted the normal flow of ‘a Catholic common law.’38 By 1937, women’s political, economic and reproductive rights had been so severely curtailed that women were explicitly

33 See: Constitution Review Group, Report of the Constitution Review Group (Dublin, Government Stationery Office, 1996) ch 12, pp 319–17, and Appendix 23; K Lynch, ‘Defining the Family and Protecting the Caring Functions of Both Traditional and Non-traditional Families’ in ibid, p 627. 34 See: B Farrell, (ed), above n 25. 35 See generally: R Fletcher, ‘Post-colonial Fragments: Representations of Abortion in Irish Law and Politics’ (2001) 28(4) Journal of Law and Society 568. 36 See: R Fanning, above n 24, p 43. 37 In Re Howley [1940] IR 119. 38 Ibid.

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barred from claiming for themselves a public identity.39 The Civil Service Act of 1924 marked the beginning of women’s exclusion from the machinery of state and government. The Act restricted civil service examinations according to sex, the guiding presumption being that women would leave paid employment on marriage. The enactment of the Juries Act 1927 continued the process of exclusion. Women were portrayed as unwilling jurors, preferring to remain within the private sphere of the family and home. As a result of this Act, women were not only excluded from jury service, they were also denied the right to be judged by their peers.40 In parliamentary debates on the Juries Bill, the Minister for Justice appealed to women’s ‘normal and natural functions’ to explain their exclusion.41 The appeal to a natural order, rooted in Roman Catholic doctrine, was to become a constant in legal discourse. B. SEPARATE SPHERES: ‘LIFE WITHIN THE HOME’

A commitment to the ideal of ‘separate spheres’, premised on the complementarity of gender roles and a presumption of natural sex differences between women and men, is central to much Roman Catholic teaching.42 In the drafting of the Constitution, this ethos was to find its way into the constitutional provisions on the family. Article 41.2.1º leaves little room for debate as to the nature of women’s citizenship under the Irish Constitution providing: ‘... the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.’ The category woman that is here invoked does not admit of much difference or diversity. A woman’s citizenship was to be defined, first and foremost, by her ‘life within the home’. The conflation of woman and mother is reinforced further by Article 41.2.2º, which provides, ‘... the State shall endeavour to ensure, that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.’ If women are to ‘neglect their duties in the home’ and enter into paid employment, Article 45.4.2º of the Directive Principles directs the state to ensure

39 MG Valuilis, ‘Power, Gender and Identity in the Irish Free State’ in J Hoff and M Coulter, (eds), Irish Women’s Voices Past and Present (Bloomington, IN, Indiana University Press, 1995) 117, 123. 40 See: M Luddy, above n 16, p 39. 41 Dáil Debates, 23 February 1927, vol 18, col 766. 42 See, for example, the Holy See’s reservation to the Beijing Declaration and Platform for Action, which refers to the complementarity of gender roles and the specificity of being male and female, (invoking Pope John Paul’s ‘Letter to Women’, 6). Beijing Declaration and Platform for Action, adopted on 15 September 1995, UN Doc A/CONF 177/20 (1995) and UN Doc A/CONF 177/20/Add.1 (1995) 157, ‘Reservations and statements of interpretation’, para 11.

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that ‘citizens’ are not forced by economic necessity to enter ‘avocations unsuited to their sex.’ That De Valera presumed a differentiation in gender roles within the family is evident from his contributions on the constitutional provision on equality. Article 40.1 guarantees equality before the law. The corresponding provision in the 1922 Constitution had included the phrase, ‘without distinction on grounds of sex’. De Valera thought this additional phrase was unnecessary. His justification for deleting the phrase, however, refers repeatedly to the realm of ‘political life’, a qualification that went unnoticed by parliamentary colleagues.43 Clearly, in his view, the domestic sphere was to be subject to different tests of justice. The gender-differentiated nature of citizenship and the situating of women firmly within the domestic sphere provoked a huge outcry from the women’s movement, many of whom had supported De Valera in his antitreaty stance. The Women’s Graduates Association led the opposition to the draft Constitution. Hanna Sheehy-Skeffington, a leading feminist activist and a pacificist who had supported DeValera in the civil war, was one of the most vocal opponents. The 1916 Proclamation of Independence, she argued, had given Irish women ‘equal citizenship, equal rights and equal opportunities’.44 Subsequent constitutions had ‘filched these’ or ‘smothered them in mere empty formulae.’45 John A Costello, a former Attorney General, expressed concern that the maxim expressio unis, as applied to Article 41.2.1, could exclude women’s life outside the home from constitutional protection.46 Opposition to the Constitution was rejected as ‘anticatholic’ and as lacking respect for the Church teachings on, ‘the position, the sphere, the duties of women.’47 An editorial in the Irish Press described the opposition to the Constitution as a ‘revolt against the authority and teaching of Pius XI.’ Reverend John Charles McQuaid (later archbishop of Dublin), commenting on feminist opposition, noted that ‘nothing would change the law and fact of nature that women’s natural sphere is the home.’48 From a feminist ethic of Care perspective, Article 41.2 could be welcomed as recognition of the distinct role played by many women within the domestic sphere. Women continue to account for the majority of homemakers and carers working full-time in the home.49 Article 41.2, however, has

43 See, Y Scannell, ‘The Constitution and the Role of Women’ in B Farrell, (ed), De Valera’s Constitution and Ours (Dublin, Gill & Macmillan, 1988) 123, 124. 44 See: Election manifesto of Hannah Sheehy Skeffington, 1943, cited in M Luddy, above n 16, p 50. 45 Ibid. 46 Dáil Debates, vol 68, col 856, 4 June 1937. 47 Irish Press, 17 December 1937. 48 Dublin Diocesan Archives, McQuaid Papers, section 5, file 4b, Rights of Women, 1936. 49 See: National Women’s Council of Ireland, The Hidden Poverty of Women (Dublin, 2000) 25, 3–4.

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failed to provide any support for rights-claims arising from this work. De Valera justified the gender-specificity of Article 41.2 by appealing to the need to protect women and to ensure that their ‘inadequate strength’ was not abused.50 This concern to protect, however, has not translated into a concern to support or empower women within the domestic sphere. In L v L,51 a married woman invoked Article 41.2 to support her claim that a woman working as a full-time homemaker and mother should be entitled to a proprietary interest in the family home. In the High Court, Barr J concluded that the Court had a positive obligation to interpret Article 41.2 in a way that recognized marriage as an equal partnership. If a woman chose to work full time in the home, she should receive reasonable economic security within the marriage in return for the economic and emotional sacrifice this choice involved. Barr J held that the wife and mother in this case was entitled to a 50 per cent beneficial ownership in the family home. This finding, however, was reversed on appeal by the Supreme Court. Drawing a clear line between the public and domestic sphere, Chief Justice Finlay concluded that Article 41 did not create any particular rights within the family, nor did it grant individual members rights against other family members. It dealt only with the protection of the family from external forces. Following on from the L v L case, the Government introduced the Matrimonial Home Bill, 1993, which sought to guarantee joint ownership of the family home. The Bill was referred to the Supreme Court by the President for a determination as to its constitutionality.52 Finding the Bill to be unconstitutional, Finlay CJ concluded that the intervention by the State in the family was not ‘reasonably proportionate’ and constituted a failure by the State to protect the authority of the family.53 A similar view was expressed by Costello J in Murray v Ireland.54 In his view, the rights in Article 41 attached to the institution of the family itself rather than to any personal rights that an individual might enjoy by virtue of family membership. On this reading, the Constitution protects the family as a unit but does not inquire into relations within the family. The defence of domestic jurisdiction, presented as reflecting a ‘natural order’, is clearly to the fore here. A reluctance to invoke Article 41.2 to support claims arising from women working full-time in the home was seen more recently in Sinnott v Minister for Education.55 The case involved a young man, Jamie Sinnott, who suffered from a severe form of autism, and was suing the State for its failure to 50

Dáil Debates, vol 67, cols 67–69, 11 May 1937. L v L [1992] IR 77. 52 Art 26 of the Constitution provides for the possibility of a referral of legislation by the President to the Supreme Court, prior to its enactment. The determination of the Supreme Court is binding. 53 Above n 51, p 326. 54 Murray v Ireland [1985] IR 532, 536. 55 Sinnott v Minister for Education [2001] IESC 39; [2001] 2 IR 505. 51

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defend and vindicate his personal rights and his right to a free primary education, appropriate to his needs, for as long as he was capable of benefiting from it (Article 42 of the Constitution). Jamie was joined in the action by his mother, Kathy Sinnott, who claimed inter alia, that the failure of the State to provide free education facilities appropriate to the needs of her son, had imposed inordinate burdens on her as a single parent and full-time mother, and had deprived her of constitutional rights pursuant to Articles 40, 41 and 42 of the Constitution. Kathy Sinnott was seeking recognition of her role as a carer within the family, and through an argument that relied on a relational understanding of rights and responsibilities, she argued that the State’s failure to protect her son’s rights also breached her constitutional rights as the primary carer within the family.56 Keane CJ, giving judgment on behalf of the majority of the Supreme Court, rejected her arguments, however, noting that while her position evoked ‘respect, admiration and compassion’, these were not grounds in law for any award of damages.57 In a dissenting judgment, Denham J highlighted the relational nature of rights and responsibilities within the family. She noted that Kathy Sinnott had rights and duties as a parent within the family unit. A breach by the State of the rights of one member of the family unit could have a negative impact on the family and particularly on the person charged with the primary care of the family— in this case, Kathy Sinnott.58 Denham J also attempts to rescue Article 41.2, which she argues, does not assign women to a domestic role, but rather seeks to give recognition to the work performed by women in the home. In this case, she concluded, the State had failed to give due recognition to the work performed by Kathy Sinnott, work that Denham J noted was of ‘immense benefit for society’.59 Denham J.’s arguments stand in marked contrast to the reluctance of the majority of the judiciary to inquire into relations within the family and to give legal recognition to the work of carers within the home. The majority of the Supreme Court in the Sinnott case acknowledged the work undertaken by Kathy Sinnott, but refused to acknowledge any rights arising from her role as a carer. The transformative potential of rights is blocked by a deeply gendered division between the public and the private spheres and a presumption that the tests of justice that normally apply within the public sphere do not extend to domestic relations.60

56

Ibid, para 123, per Denham J. Ibid, para 110. 58 Ibid, para 182. 59 Ibid, para 197. 60 For a detailed critique of the failure by states to assume a collective responsibility for caring work, see: M Fineman, The Autonomy Myth: A Theory of Dependency, (New York, NY, New Press, 2003); M Fineman, ‘Contract and Care’ (2001) 76(1) Chicago-Kent Law Review 1403; M Fineman, ‘Cracking the Foundational Myths: Independence, Autonomy, and Self-sufficiency’ (2000) 8 American University Journal of Gender, Social Policy and the Law 13; M Fineman, ‘The Family in Civil Society’ (2000) 75 Chicago-Kent Law Review 531. 57

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A division between the public and the domestic spheres is also evident in the constitutional guarantee of equality. Unlike other constitutional guarantees, the equality guarantee has not been applied to relations between non-state actors.61 A gendered division between the public and the private prevails. The Constitution Review Group considered the possibility of extending the existing equality guarantee so as to allow for ‘horizontal applications’. The Group noted that discrimination is often practised by persons and bodies other than the State. However, they concluded that to extend the scope of the equality guarantee would raise a number of difficulties—both conceptual and practical. A majority of the Group took the view that relations between private individuals did not raise issues of constitutional rights or wrongs. Indeed, it was felt that it would be difficult to identify to whom, other than the State, the obligation to respect equality should apply. No reference was made by the Review Group to the significant body of case law in which relations between non-state actors have been identified by the Irish courts as raising issues of fundamental rights. The CEDAW Committee has noted with concern the failure to apply the constitutional guarantee of equality to private, non-state actors.62 Again, we see here, the limits of inherited traditions of rights discourse. The problem lies not in rights discourse per se, but rather in the gendered divisions that constrain the pursuit of equality through rights. Far from preserving a sphere of liberty, these divisions serve only to constrain a flourishing of difference as discriminatory practices are allowed to continue unabated within domains labelled as private. The division between the public and the private is also evident in the limited scope of equality legislation, which exempts care work, undertaken in domestic households from the general prohibition on discrimination in employment.63 This exemption of the domestic household represents further devaluation of the contribution made by care workers, the majority of whom are women. C. RIGHTS DISCOURSE AND FAMILY LAW REFORM

The reluctance to extend the scope of rights discourse is also evident in the limits imposed on the constitutional guarantee of equality. Although equality

61 See generally: ‘Equality Guarantees in Irish Constitutional Law’ in T Murphy and P Twomey, (eds), Ireland’s Evolving Constitution: 1937–1997 (Oxford, Hart Publishing, 1998). 62 Concluding Observations of the Committee on the Elimination of Discrimination Against Women: Ireland, 1 July 1999, UN Doc A/54/38. 63 Employment Equality Act, 1998, §37 (as amended by the Equality Act 2004). The exemption has been the subject of widespread criticism, particularly from migrant workers’ groups representing the increasing number of female migrant domestic workers in Ireland. See generally: Irish Human Rights Commission, Submission on the Equality Bill 2004, available at: http://www.ihrc.ie

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before the law is guaranteed, the State may have ‘due regard to differences of capacity, physical and moral, and of social function’. The UN Committee on Economic, Social and Cultural Rights has expressed concern that this limitation may be invoked to justify discriminatory practices.64 Its concern is well-founded. The appeal to difference has been invoked to justify a strict binary division in gender roles and gendered identities. This has limited the possibility of recognising diversity within the category ‘woman’. It has also constrained the rights of unmarried fathers to custody and guardianship of their children and, mirroring developments within the international community, it has limited the rights of sexual minorities.65 In Nicolau v An Bord Uchtála,66 an unmarried father sought to challenge the provisions of the Adoption Act, 1952, which permitted the adoption of his child without his consent. The Supreme Court rejected Nicolau’s challenge, appealing to differences in ‘moral capacity and social function’ between the ‘natural’ father and ‘natural’ mother of a child. In the Court’s view, it was, ‘rare for a natural father to take any interest in his offspring,’ except in the circumstances of married life, or circumstances approximating to those of married life.67 Nicolau was, in effect, squeezed between two categories: ‘the over-inclusive category of the uncaring, distant and unreliable natural father and the under-inclusive category of the natural mother who is always, first and foremost, a caring parent.’68 Almost two decades later, in Keegan v Ireland,69 the European Court of Human Rights concluded that Ireland’s failure to protect the rights of an unmarried father were a violation of his right to family life. In a judgment that challenges traditional divisions between the public and domestic spheres, the Court rejected the Government’s appeal to a wide margin of appreciation and its contention that the case touched on a matter of social policy into which the Court should be reluctant to intervene. For sexual minorities in Ireland, it has also been necessary to take the path to Strasbourg. In Norris v Attorney General,70 the plaintiff challenged the constitutionality of 19th century statutory provisions criminalising male homosexuality. A majority of the Supreme Court concluded that the criminalisation of same-sex sexual acts between men was not a violation of the 64 See: Concluding Observations of the Committee on Economic, Social and Cultural Rights : Ireland, UN Doc E/C12/1/Add.35, 14 May 1999, para 11. 65 See generally: D Buss, ‘Racing Populations, Sexing Environments: The Challenges of a Feminist Politics in International Law’ (2000) 20(4) Legal Studies 463. 66 Nicolau v An Bord Uchtála [1966] IR 567. 67 Ibid, p 641, per Walsh J. 68 L Flynn, ‘To be an Irish Man: Constructions of Masculinity in the Constitution’ in P Twomey and T Murphy, (eds), Ireland’s Evolving Constitution 1937–1997 (Oxford, Hart Publishing, 1998) 135, 139. 69 Keegan v Ireland (1994) 18 EHRR 342. 70 Norris v Attorney General [1984] IR 36. See generally V Freedman, Cities of David: The Lives of David Norris (Dublin, Basement Press, 1995).

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plaintiff’s right to privacy. The right to sexual privacy existed only within the sphere of a family based on marriage. Extending the scope of privacy rights would, in the Court’s view, fragment the institution of marriage, posing a serious threat to public morals and social order. As Flynn has argued, the possibility of slippage, of any weakness or ‘kink’, excited the anxiety of the court, provoking a moral panic from within.71 Norris claimed also a violation of his constitutionally protected right to equality before the law. Lesbian sexual relationships were not subject to criminal sanction. Neither were heterosexual relationships outside of marriage. On the first point, O’Higgins CJ, speaking for the majority, stated that the legislature was, ‘perfectly entitled to have regard to the difference between the sexes.’72 While sexual conduct between men required prohibition because of the ‘social problem’ it created, sexual conduct between women, in his view, did not create any such problem. The Supreme Court did not consider the argument concerning heterosexual relationships outside of marriage, though we can safely presume that the same line of reasoning would have been followed. The Court’s rejection of Norris’s claim to equal treatment reflects a deeply gendered view of the roles appropriate and ‘natural’ to men and women. In Norris v Ireland,73 the European Court of Human Rights upheld Norris’s claim to privacy, finding Ireland to be in violation of the ECHR. The Government had argued that the interference with Norris’s right to privacy was ‘necessary in a democratic society’ for the protection of public morals. The Court, however, rejected this argument, applying the criteria of necessity and ‘pressing social need’ as yardsticks to identify ‘public morals’. The Irish Government had argued that such an approach ‘emptied the moral exception of all value’.74 The Court, in its view, should avoid moral judgments. The Court rejected this argument. Though recognising the need to yield a margin of appreciation to States, ultimately it was the final arbiter on the scope of Convention rights. Fulfilling that role required, of necessity, a moral judgment. A reluctance to recognize difference within the Irish polity was evident again in the two referenda held on the constitutional prohibition of divorce. The prohibition had been criticised by both the Second Commission on the Status of Women and UN human rights treaty bodies.75 The prohibition was also the subject of proceedings before the European Court of Human

71

Above n 68, p 144. Above n 70, p 69. 73 Norris v Ireland (1988) 13 EHRR 186 74 Ibid, para 43. 75 See: 1st Commission on the Status of Women, Report to Government (Dublin, Government Stationery Office, 1972); 2nd Commission on the Status of Women, Report to Government (Dublin, Government Stationery Office, 1993); Report of the Committee on the Elimination of All Forms of Discrimination Against Women (8th Session) 1989, GAOR 44th Session, Supp No 38 UN Doc A/43/38, 25; Concluding Observations of the Human Rights Committee: Ireland, 3 August 1993, UN Doc CCPR/C/79/Add.21, para16. 72

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Rights. In Johnston v Ireland,76 the Court found that the prohibition on divorce in Ireland did not violate the right to family life or the right to marry as protected in the ECHR. Neither did the prohibition violate the right to freedom of thought, conscience and religion. The pluralist nature of the State and a concern to recognize diversity in religious beliefs and practices accompanied debates on divorce for some time. These debates were given an added urgency by North–South relations and the concern of some to recognize diversity within the island of Ireland. In 1966, an all-party informal Oireachtas Committee on the Constitution was established by the then Taoiseach, Sean Lemass. The Committee unanimously recommended deleting the Constitution’s absolute prohibition on divorce, pointing out that it, ‘ignored the wishes of a certain minority of the population ... who are not prevented from securing divorce by the tenets of the religious denominations to which they belong.’77 The Commission also argued that the absolute prohibition on divorce was a source of embarrassment for those seeking an improvement in North–South relations. The recommendation provoked predictable hostility from the Roman Catholic hierarchy, Cardinal Conway pointing out that the result would be ‘a radical and far-reaching break with our national traditions.’78 Chubb writing in 1991, noted that the Committee was ‘remarkable both for the progressive views it expressed ... and for its complete misjudgment of what was politically possible at the time.’79 It was another three decades before the prohibition on divorce was finally deleted from the Constitution and then only by the narrowest of margins.80 The move towards family law reform was given an added momentum by the ongoing peace process in Northern Ireland. By removing the constitutional prohibition on divorce, it was hoped that Ireland could define itself as a modern pluralist state ready to accommodate a Northern Protestant community. Not everyone, however, was persuaded by this argument. The divorce referendum was opposed by lobby groups with close links to conservative Catholic organisations, including Opus Dei and the Knights of Columbanus. Throughout the campaign, they raised the spectre of the deserted wife and her children, left without protection, without support. ‘Hello

76

App No. 9697/82 Johnston v Ireland [1986] ECHR 17. Oireachtas Committee on the Constitution, Report of the Committee on the Constitution (Dublin, Government Stationery Office, 1967) para 123. 78 Irish Times, 15 December 1967. 79 B Chubb, The Politics of the Irish Constitution (Dublin, Institute of Public Administration, 1991) 83. 80 The referendum and 15th amendment to the Constitution Bill, was approved by the people by a majority of only 9,000 votes. See: http://www.referendum.ie 77

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divorce, good-bye Daddy’ was the slogan of one such group.81 Opposition to divorce was situated within the framework of communitarian values and resistance to ‘western’ liberal individualism. The Public Policy Research Institute, a conservative think-tank with close links to Opus Dei, argued that full-time work in the home would be a very ‘uncertain option’ for women in a state where divorce existed.82 A woman’s ‘freedom’ to give herself to the upbringing of her family would be undermined.83 Ultimately, the anti-divorce lobby was defeated and divorce ‘Irish-style’ became a reality with the enactment of the 1996 Family Law (Divorce) Act.84 The exclusionary narrative of nation was evident again in recent debates on the right to citizenship by birth in Ireland. The insertion of a new Article 2 into the Irish Constitution following the 1998 Belfast Agreement,85 had given constitutional recognition to the jus soli principle and to birthright citizenship.86 The coincidence of increasing immigration in Ireland with the Belfast Agreement and constitutional change, has been described by the Irish Supreme Court as an ‘accident of history.’87 It is an ‘accident’ that provided the Irish Government with an opportunity to develop an open and inclusive concept of citizenship. That opportunity, at least for the moment, appears to have been passed by. As immigration controls have tightened, with increasing numbers of people denied leave to enter the State, so also have citizenship laws been restricted. The right to family life enjoyed by migrant families living in Ireland was the subject of debate in the L and O cases, before the Supreme Court in January 2003. The majority of the Supreme Court concluded that the State’s right to control immigration and to safeguard the integrity of the asylum and immigration systems took priority over any claims asserted by undocumented migrant family units. The 81 See: C Coulter, ‘“Hello Divorce, Good-bye Daddy”: Women, Gender and the Divorce Debate’ in A Bradley and MG Valiulis, (eds), Gender and Sexuality in Modern Ireland (Amherst, MA, University of Massachusetts Press, 1997) 275. 82 Public Policy Institute, Women Scorned (Dublin, Public Policy Institute, 1995) 59. 83 Ibid, pp 11–12. See C Coulter, above n 81, p 282. 84 The availability of divorce remains restricted with a requirement of five years separation before an application for divorce can be granted. 85 See: Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Ireland (British-Irish Agreement) and the Agreement reached in Multi-party negotiations (Belfast Agreement), concluded 10 April 1998, reproduced in (1998) 37 ILM 751. See also: British-Irish Agreement. See generally: C Harvey and S Livingstone, ‘Human Rights and the Northern Ireland Peace Process’ [1999] European Human Rights Law Review 162; CJ Harvey, (ed), Human Rights, Equality, and Democratic Renewal in Northern Ireland (Oxford, Hart Publishing, 2001); C Harvey, ‘Governing After the Rights Revolution’ (2000) 27 Journal of Law and Society 61. 86 See: 19th Amendment to the Constitution Act, 1998. The full text of Art 2 of the Constitution of Ireland (as amended) reads: Art 2. It is the entitlement and birthright of every person born in the island of Ireland, which includes its islands and seas, to be part of the Irish Nation. That is also the entitlement of all persons otherwise qualified in accordance with law to be citizens of Ireland. Furthermore, the Irish nation cherishes its special affinity with people of Irish ancestry living abroad who share its cultural identity and heritage. 87 See L and O v Minister for Justice, Equality and Law Reform [2003] IESC 1, para 451.

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L and O cases raised questions concerning the constitutional commitment to protecting the ‘inalienable and imprescriptible’ rights of the family. Article 41 of the Constitution assigns the family an exceptionally important status and role in the ‘welfare of the Nation and the State’. The rights of the family are described in the constitutional text as being ‘antecedent and superior’ to all positive law, including, this would suggest, to immigration and asylum law. Ireland’s commitment to the protection of the family unit has frequently been invoked as a marker of Ireland’s distinct national identity. In McGee v Attorney General, Walsh J noted that the family, as the ‘natural primary and fundamental unit group of society’, had rights that the State could not control. Only certain kinds of families, it would seem, are deserving of the constitutional protection afforded by the very entrenched provisions on family life. On 11 June 2004, a referendum was held in Ireland, on the question of birthright citizenship. By a majority of four to one, the electorate voted to impose restrictions on birthright citizenship, for children born to non-national parents.88 The Irish Nationality and Citizenship (Amdt) Act, 2004) provides that children born to non-nationals will only acquire citizenship by birth if one parent has been lawfully resident within the State for a minimum period of 3 years.89 The constitutional provisions on the family have been subject to a detailed examination by the Constitution Review Group, convened by the Government in 1995 to review the Constitution and to establish those areas where constitutional change might be ‘necessary or desirable’. The Review Group, reporting in 1996, noted that the mores of Irish society had changed significantly since the adoption of the Constitution in 1937. The influence of the Roman Catholic church had been weakened by a continuing process of secularisation, changing attitudes to sexual behaviour and greater economic prosperity. The Group highlighted the dated nature of references to ‘women’s duties in the home’ and recommended a revised version of Article 41.2 that would recognise the role and contribution of carers within the home, but would be phrased in gender neutral terms. The Group also examined the constitutional definition of the family and the exclusive protection afforded to the family based on marriage. The Group’s discussion reveals a concern at the threat posed by extending the definition of the family. A multiplicity of unions and relationships would seek recognition as families, leading to uncertainty, confusion, fragmentation. Despite its reservations, 88 See: 27th Amendment to the Constitution Act (2004). The referendum followed a period of heated debated on the rights of migrant families to remain in Ireland on the basis of having an Irish born child. In the L and O cases, the Supreme held the right of a citizen child to the company, care and parentage of her of his parents was subject to the common good, namely the State’s interest in immigration control and the integrity of the asylum process. See L and O v Minister for Justice, Equality and Law Reform [2003] IESC 1, para 148. 89 The full text of the bill is available at: http://www.oireachtas.ie/viewdoc.asp?fn=/documents/bills28/bills/2004/4004/document1.htm.

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the Group ultimately concluded in favour of a constitutional amendment that would continue to guard the institution of marriage with special care, but would also guarantee to all individuals, respect for their family life whether based on marriage or not.90 The recognition of an individual’s right to family life would mark a shift away from the current constitutional provision which protects the family only as a unit, and defers to its ‘authority’ as such. The Review Group’s recommendations are the subject of ongoing consideration before the All-party Oireachtas Committee on the Constitution, which is currently reviewing the constitutional provisions on the family. Submissions to the Committee and hearings before the Committee have highlighted the diversity of views on the family and on the definition of the family. At present, this diversity is not recognized by the Constitution, which as the Minister for Justice, Equality and Law Reform has noted, privileges the family based on marriage.91 The Civil Partnerships Bill 2004, currently pending before the Parliament and an ongoing constitutional challenge seeking recognition of a lesbian marriage,92 validly contracted in Canada, represent attempts to move towards a more inclusive concept of family life, one that transcends the boundaries of a singular ‘ethnos’. Increasingly, legal and political discourse is recognizing the diversity of family forms and permissible sexual affiliations that exist in Ireland. Inherited traditions, however, continue to limit the extent of such recognition. D. RIGHTS DISCOURSE AND LIFE WITHIN THE HOME

The Irish Human Rights Commission, in its submission on Ireland’s Combined Fourth and Fifth Reports under CEDAW has highlighted the inconsistencies between the constitutional stereotyping of women’s roles and the international norm of non-discrimination on grounds of sex.93 In its Concluding Observations on Ireland’s Fourth and Fifth Reports, the CEDAW Committee expressed concern at the constitutional emphasis on 90

Constitution Review Group, above n 33, p 336. ‘Article 41.3.1 of the Constitution provides that the State pledges itself to guard with special care the institution of marriage, on which the family is founded, and to protect it against attack [...]this article precludes the State from [...] equating the institution of marriage with other forms of relationship or partnership which do not carry the attendant obligations.’ Reply by Minister for Justice, Equality and Law Reform, Mr Michael McDowell TD, during the Second Stage Debate on Civil Partnership Bill 2004 held on Wednesday 16 February 2005. 92 The case is currently pending before the High Court. On 9 November 2004, the High Court granted leave to commence judicial review proceedings to lesbian couple, Katherine Zappone and Ann Louise Gilligan, who are seeking recognition of their marriage, contracted in Vancouver, Canada in 2004, for the purposes of tax legislation in Ireland, which gives preferential treatment to married couples. 93 Irish Human Rights Commission. Submission to the UN Committee on the Elimination of Discrimination Against Women in Respect of Ireland’s Combined Fourth and Fifth Reports under the Convention on the Elimination of All Forms of Discrimination Against Women, Irish Human Rights Commission (Dublin, 2005) 2, 10–19. 91

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the role of women as mothers and caregivers and the continuing stereotyping of gender roles.94 The UN Human Rights Committee has also expressed concern at the continuing inequalities faced by women in Ireland. In particular, it noted that the references to women made in Article 41.2 of the Constitution could perpetuate ‘traditional attitudes’ toward the role of women.95 Proposals for reform, however, have led to a backlash from Christian right organisations many of whom have singled out the UN human rights treaty bodies for particular criticism. Opposition to the liberalising agenda of CEDAW gathered momentum in the preparations for the Beijing + 5 review process. A new umbrella body, Neart, (meaning strength) was formed, with the stated objective of defending Article 41.2 and the constitutional protection of women working within the home.96 Neart prepared an alternative report for the Beijing + 5 meeting, highlighting Ireland’s cultural and religious specificity and linking the protection of that specificity with national sovereignty.97 Neart distanced itself from Ireland’s official report and from the submission by the National Women’s Council of Ireland (NWCI).98 The Council’s pursuit of gender equality was portrayed as ‘anti-family’ and as unrepresentative of Neart’s views. The Council’s support for CEDAW and for the CEDAW Committee’s reform proposals could not be reconciled with Neart’s conservative Catholic ethos. Opposition to the Beijing Platform was again reiterated in preparations for the Beijing + 10 review process. In its submission on the Beijing + 10 review process, Neart noted that ‘the woman’s voice is diminished and distorted’ by instruments such as CEDAW, which was ‘unrepresentative and invalidated’.99Though calling for recognition of the ‘multifarious’ voices of women, Neart used the singular ‘woman’ and throughout its submission reveals an essentialist conception of womanhood, 94 See: Concluding Observations of the Committee on the Elimination of Discrimination Against Women on Ireland’s Combined Fourth and Fifth Reports, adopted 29 July 2005. See also: Concluding Observations of the Committee on the Elimination of Discrimination against Women: Ireland, 1 July 1999, UN Doc A/54/38, paras 161–201. 95 Human Rights Committee, 69th session, Concluding Observations of the Human Rights Committee, Ireland, 20 July 2000, UN Doc CCPR/CO/69/IRL, para 16. 96 See: ‘New Coalition to Challenge National Women’s Council’ Irish Times, 11 May 2000. Neart comprised over 20 affiliate groups, including Human Life International, National Union of Mothers Mothers Working at Home. 97 Neart, Beijing + 5: Alternative Report for Ireland, May 2000, 62. See: Report on Proceedings: United Nations General Assembly Special Session ‘Women 2000: Gender Equality Development and Peace’. National Forum for Non-governmental Organisations, Dublin Castle, 10 May 2000, available at http://www.justice.ie as viewed on 15 May 2002. 98 Department of Justice, Equality and Law Reform. UN General Assembly Special Session: ‘Women 2000, Gender Equality Development and Peace’. National Report for Ireland. 2000; National Women’s Council of Ireland. Promises Made Promises Broken: Beijing + 5 Alternative Report for Ireland. Dublin: NWCI; 2000. 99 Neart, Beijing + 10: Submission to the Strategic Review Committee on the Implementation of the Beijing Platform for Action in Ireland, February 2002, available at: http: //www.justice.ie/80256E010039C5AF/vWeb/flJUSQ6ARE3V-en/$File/Group 64.pdf

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rooted in the ideology of conservative Catholicism. Mirroring the Holy See’s reservations to the Beijing Platform, Neart accuses ‘secularized feminism’ of promoting atomistic individualism and of ignoring the networks of relations in which individuals live.100 ‘Christian feminism’, rooted in a conservative Catholic ethos, is offered as an antidote. The greatest challenge to a conservative Catholic ethos within Irish legal and political discourse, has come, however, not from human rights treaty bodies, but from the demands of free market economics. Ireland’s transition to a ‘Celtic Tiger’ economy has further polarised debates on women’s roles and Ireland’s ‘family values’. Globalisation has brought with it a clash of cultures and a challenge to the traditional structures of family life. The transition to a ‘Tiger economy’ has led to increased demands for a more flexible and competitive workforce.101 The relatively low participation of married women in the labour force did not sit well with the demands of an expanding economy. Finally, in 1999, in response to increasing labour shortages, the Government decided to act, introducing a series of measures including individualisation of the income tax system and tax incentives to encourage women to return to paid employment. This challenge to the traditional gendered division of labour met with opposition. As one commentator noted, ‘old allies re-emerge[d] to criticise working women.’102 Article 41.2 again raised its head, with Christian right groups pointing to the constitutional commitment to recognising and protecting women’s lives within the home. If women should not be, ‘forced by economic necessity to neglect their duties within the home’, economic incentives should not be offered by Government to encourage such neglect. Portrayed as an attack on the family, a devaluation of women’s work within the home and possibly unconstitutional, the tax individualisation plan was withdrawn, to be resubmitted a year later modified to take account of the criticisms levied against it. Opposition to tax individualization was also voiced in the preparations for the 10–year review of the Beijing Platform for Action, with Neart calling on the Government to ensure that the economy is structured so as to give full recognition to the family based on marriage as the fundamental unit of society.103 The debate has not ended, however. Incentives to encourage greater female participation in the labour force have been given added momentum by European Union membership and Community strategies to promote gender equality. Christian

100

Ibid, p 4. E Crowley, ‘Making a Difference? Female Employment and Multinationals in the Republic of Ireland’ in A Byrne and M Leonard, (eds), Women and Irish Society: A Sociological Reader (Belfast, Beyond the Pale Publications, 1997) 81. 102 M Holland, Irish Times, 9 December 1999. See also: Dáil Debates 15 December 1999, per Mr John Bruton TD, available at: http://www.gov.ie/debates-99/15dec99/sect9.htm. 103 Neart, above n 99, pp 46–47. 101

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right groups have organised to oppose expansion of EU law, portraying the Treaty of Rome, as amended, and the draft Constitution for Europe as yet further threats to Ireland’s sovereignty and to its ‘pro-family’ and ‘pro-life’ traditions.104 The National Women’s Council has responded to Neart’s claims, seeking to re-gain some of the ground lost in relation to women working within the home.105 The Council has challenged the European Union’s economic focus and its failure to recognise the contribution of carers working full-time in the home.106 The Council has invoked the values of an Ethic of Care feminism, calling on the EU to promote ‘affective equality’—defined as the right to love, care and solidarity. Responding to the charge of exclusion raised by Neart and other Christian right groups, the Council has called on the EU to recognise the diversity and equal value of women’s different experiences and life choices. E. CONCLUDING REMARKS

The response of the Christian right is not unique to Ireland. In the US, a range of Christian right groups have organised to oppose the extension of international human rights law. Joel Richard describes this opposition as a displaced response to the anxiety produced by globalisation.107 Globalisation, he says, has brought with it a sense of economic displacement and loss of control over the nation-state’s destiny.108 In attempting to re-assert control, the Christian right have sought protection for the nationstate’s distinct cultural identity. In Ireland, this protective agenda has focused on preserving strictly gendered roles within the family unit. With changing labour patterns and the expansion of both international and European human rights law, this battle has proven difficult to sustain. The expansion of equality law and the recognition, through human rights law, of a multiplicity of family unions has exposed the socially constructed nature of gender identities and roles. This greater openness to difference has challenged the strict uni-duality of gender roles found in orthodox Roman Catholic doctrine, and enshrined in the constitutional provisions on the

104 See: Neart, Submission to the National Forum on Europe, 1 December 2001; National Union of Mothers of Ireland, Submission to the Forum on Europe, 3 December 2001. 105 National Women’s Council of Ireland. Submission to the National Forum on Europe. December 2001, available at: http://www.forumoneurope.ie as viewed on 17 May 2002. 106 European Union law’s emphasis on the person as an isolated ‘economic’ actor, has been the subject of much feminist critique. See, for example, C Barnard, ‘Gender Equality in the EU: A Balance Sheet’ in P Alston, (ed), The EU and Human Rights (Oxford, OUP, 2000) 215. 107 JR Paul, above n 15. See also: D Buss and D Herman, Globalizing Family Values: The Christian Right in International Politics (Minneapolis, MN, University of Minnesota Press, 2003). 108 Ibid, p 7–8.

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family, notably Article 41.2. In the response of the Christian right, we see a refusal to shift from ‘ethnos’ to ‘demos’ in conceptualising the Irish state and the nature of citizenship. Gender identities and roles within the family have become markers of difference and signifiers of the State’s distinct religious cultural identity. That identity, however, and the inherited traditions of orthodox Roman Catholic teaching, are in a state of flux, and have been contested by feminist and other egalitarian movements since the very foundation of the State. These movements have challenged accepted tropes of Irish nationalism, and, in doing so, have drawn upon universalistic principles of human rights. In debates on the meaning and import of Article 41.2 of the Constitution, we can see the difficulties that arise in negotiating between competing claims, many of which are rooted in religious–cultural beliefs or practices. Denham J in the Sinnott case, along with Barr J in the L v L case, each draw upon Article 41.2 to support the pursuit of greater equality for women who work full-time within the domestic sphere. The dominant voices in the debate, however, choose to defer instead to the authority of the family unit and a gendered division between public and private that acknowledges the role played by women who work within the home, but refuses to recognise any rights-claims that such a role might give rise to. The Christian right have clung to Article 41.2 in an attempt to preserve a strict uni-duality of gender roles. The Constitution Review Group, the National Women’s Council and others, have supported a redrafting of Article 41.2 that would continue to recognise the role of carers, promoting the affective dimensions of equality and human rights, but removing the gender specificity of the provision. This redrafting would, in turn, open up greater space for the recognition of different family unions, and a recognition of the roles played by men who chose to work as full-time carers. This space for difference, however, is constrained by religious–cultural claims that deny the openness and dynamism that comes with rights-based discourse. For feminists, the successful negotiation of these claims requires a universalist normative framework that starts from the point of an equal recognition of human rights claims. The existing constitutional guarantee of equality has done little to challenge the uni-duality of gender roles that continues to constrain both men and women’s pursuit of equality. As with Rawlsian political liberalism, a reluctance to extend the scope of equality guarantees prevails, limiting the flourishing of difference that liberalism itself claims to value.109 While difficulties have arisen in expanding human rights discourse to relations within the family, perhaps the greatest challenge to an expanding discourse of rights has arisen in the area of reproductive rights. As 109 See: M Fineman, ‘Justice, Gender and the Family’ (1991) 101 Ethics 647. An analysis of these debates from the perspective of discourse ethics and a dual-track approach to conflicting cultural claims is found below pp 159–160.

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religious–cultural claims concerning women’s roles within the family become more difficult to sustain, the energies of the Christian right and other cultural nationalist movements are being increasingly channeled into debates on women’s reproductive and sexual health. In the Roe v Wade decision,110 the US Supreme Court turned the discourse of privacy on its head, to recognise a woman’s right to terminate a pregnancy. Once the transformative potential of such a right was recognised, however, conservative forces in the US mobilised to limit the sphere of privacy accorded to women. In Ireland, the Christian right quickly followed suit.

110Roe

v Wade 410 US 113 (1973).

8 Debating Gender in Ireland (2): Reproductive Rights

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1971, almost one hundred women boarded a train in Dublin. They traveled to Belfast, where they purchased large quantities of contraceptives. They returned to Dublin by train, marching illegally through the customs barriers at Connolly Station, waving banners, posters and condom balloons. The ‘condom train’, as it subsequently became known, transgressed many boundaries. In crossing Ireland’s disputed border with Northern Ireland and openly flouting the ban on importing contraceptives, the women’s movement challenged the borders set by the conservative Catholic consensus in the Republic. They exposed the inequalities between women, North and South, and the closure of Irish society to difference in matters of sexual and reproductive health. They also exposed the hypocrisy of a State that made territorial claims to Northern Ireland but refused to accommodate religious diversity in matters concerning sexuality and reproduction.1 This hypocrisy has continued in the abortion debates that have spanned over two decades of legal reform. In Ireland, women’s reproductive health has long been a contested terrain. Defining and limiting the right to reproductive health served to differentiate Ireland from its Protestant neighbour. As Fletcher notes, underpinning debates on reproductive rights in Ireland is ‘a post-colonial urge to mark Irishness distinctively by constructing it in exclusively “pro-life” terms.’2 The overwhelming concern to define Ireland as ‘not England’ ensured that women’s reproductive autonomy would be sacrificed to the greater good of a post-colonial political project. Women were to be defined, not by their equal capacity for moral agency, but by their reproductive and sexual functions. N MAY

1 See generally: N Jackson, ‘Family Law: Fertility and Parenthood’ in A Connolly, (ed), Gender and the Law in Ireland (Dublin, Oak Tree, 1993) 109; L Connolly, The Irish Women’s Movement: From Revolution to Devolution (London, Palgrave, 2002). 2 R Fletcher, ‘Post –Colonial Fragments: Representations of Abortion in Irish Law and Politics’ 2001 28 (4) Journal of Law amd Society, 568, pp 568–89.

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Debating Gender in Ireland (2) A. THE ABORTION DEBATE: RE-PARTITIONING THE STATE

Much of the abortion debate in Ireland has concerned, not the right to life per se, but rather the need to protect Irish society from the liberalising forces of the ‘West’. This debate has highlighted Ireland’s often disputed position between First and Third worlds, a member of the European Union and a former colony. When abortion came to the fore as a political issue in the early eighties, it was debated less on its own terms and more in terms of the consequences it would have for Irish culture.3 Prior to the Eighth Amendment to the Constitution, there was no explicit constitutional prohibition on abortion, though it was widely believed that the right to life of the foetus was protected as an unenumerated personal right under Article 40.3.4 The move to introduce a constitutional amendment prohibiting abortion arose from a concern that the Supreme Court’s recognition of a right to marital privacy could be invoked to strike down legislation criminalising abortion. The Roe v Wade5 decision in the US was preceded by a Supreme Court decision, recognising the right to have access to contraceptives as an aspect of the right to privacy.6 Anti-abortion campaigners were concerned that the same line of reasoning might be invoked by Irish courts. Already, fundamental rights jurisprudence had extended far beyond the limits of the constitutional text, transforming the relationship between citizen and State. Since Kenny J’s landmark judgment in Ryan v Attorney General,7 recognising the right to bodily integrity, the courts had declared more than twenty unenumerated ‘personal rights’ deserving of constitutional protection.8 The Pro-life amendment campaign (PLAC) was launched in 1981, composed primarily of groups drawn from the Catholic right. The amendment campaign and the bitter debates that ensued have been described as a ‘second partitioning’ of the State.9 Although PLAC was careful to employ secular language in its campaign, it clearly drew on a conservative Catholic ethos to support its claim to the absolute inviolability of foetal life.10 Recognising this, each of the Protestant Churches in Ireland issued statements opposing the proposal for a ‘pro-life’ amendment.11 Their concerns were echoed by

3

F Fletcher, ibid p 574; A Smyth, (ed), The Abortion Papers: Ireland (Dublin, Attic, 1990). See McGee v Attorney General [1974] IR 284, per Walsh J (obiter), p 312. Roe v Wade 410 US 113 (1973). 6 Griswold v Connecticut 381 US 479 (1965). 7 Ryan v Attorney General [1965] IR 294. 8 See: Constitution Review Group, Report of the Constitutional Review Group (Dublin: Government Stationery Office, 1996) pp 247–51. 9 T Hesketh, The Second Partitioning of Ireland: The Abortion Referendum of 1983 (Dun Laoighre, Brandsma Books, 1990). 10 See: J Kingston, A Whelan and I Bacik, Abortion and the Law (Dublin: Roundhall, Sweet & Maxwell, 1997) 4–6. 11 R Fletcher, above n 2, p 576. 4 5

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the anti-amendment campaign who argued that an absolute constitutional prohibition on abortion would deny equal rights to citizenship to noncatholics and perpetuate a politics of exclusion in the Irish Republic. PLAC, however, continued to represent abortion as a violent colonial tool threatening the integrity of the Irish nation.12 Ultimately, the pro-life campaign won the day. The 1983 referendum led to the Eighth Amendment to the Constitution, acknowledging the right to life of the unborn.13 Significantly, however, the amendment recognised also the need for ‘due regard to the equal right to life of the mother’. Almost a decade later, the requirement of ‘due regard’ was to give rise to one of Ireland’s most controversial constitutional debates. Before this was to happen, however, further attempts were made to limit the scope of women’s reproductive autonomy. In SPUC v Grogan and others,14 SPUC (the Society for the Protection of the Unborn Child) sought an injunction to prohibit student groups from providing information on abortion services available in the UK. The High Court sought a ruling from the ECJ as to whether the termination of pregnancy was a ‘service’ within the meaning of the Treaty of Rome and, if so, whether student groups had a right under Community law to distribute information concerning abortion services available in the UK. At the ECJ, Advocate General Van Gerven engaged in a lengthy consideration of the rights claims in dispute, which he defined as the right to life of the unborn, as declared by a Member State, and the right to freedom of expression, as protected by Article 10 of the ECHR.15 He concluded that in the absence of a uniform European conception of morals, state authorities were better placed to assess the requirements of public morals. In his view, Ireland was entitled to claim a wide margin of appreciation in the adjudication of the conflicting rights-claims arising in this case. He went on to find that the aim pursued by prohibiting the distribution of abortion information was a legitimate one. It sought to protect the public interest and fulfilled a social need, recognised in the constitutionally enshrined ethical value-judgment of the status of the foetus. He also concluded that the measures adopted in the pursuit of this aim satisfied the requirements of proportionality. He refused to consider evidence submitted by the defendants that the prohibition on providing abortion information led to later, more unsafe abortions, and

12 One anti-abortion slogan read: ‘The Abortion Mills of England Grind Irish Babies into Blood that Cries out to Heaven for Vengeance’ ibid, p 577. See also: E O’Reilly, Masterminds of the Right (Dublin, Attic, 1992). 13 Art 40.3.3(, inserted following the enactment of the 8th Amendment to the Constitution Act, 1983, reads: ‘The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.’ 14 SPUC v Grogan [1989] IR 734. 15 See: Case C–159/90 [1991] ECR I–4685; [1991] 62 CMLR 849, ibid, paras 30–38 of Advocate General Van Gerven’s Opinion.

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greater risks to women’s health. This refusal is difficult to reconcile with his earlier statement that more restrictive national measures, such as a prohibition on the right to travel, could not be justified given the risk to a woman’s life. The ECJ, however, departed from the Opinion presented by the Advocate General, chosing to define abortion ‘solely in terms of the possible commerce and profit resulting from it.’16 Questions relating to fundamental rights were dismissed as raising non-justiciable moral rather than legal arguments.17 The Court concluded that the termination of a pregnancy, in accordance with the law of the State in which it was carried out, constituted a service within the meaning of the Treaty of Rome.18 It was, however, a partial victory only. As the student groups had no direct links with the provision of abortion services in the UK or elsewhere, they could not claim the protection of Community law.19 Again, we see here a prioritising of concerns relating to trade in services and a refusal to address reproductive health as a question of human rights. Women’s bodies and women’s health are rendered invisible by the Court’s abstract reasoning on the scope of Community law. Following on from the Court’s ruling, a permanent injunction was granted, prohibiting Grogan, et al, from distributing any further information on abortion services in the UK. Non-directive pregnancy counseling was a further victim of the State’s duty to ‘defend and vindicate’ the life of the unborn. Following a Supreme Court ruling against them, both the Open Door Counselling service and the Dublin Well Woman Centre closed their pregnancy counselling services.20 The Supreme Court concluded that the right to disseminate information could not be invoked to interfere with ‘such a fundamental right as the right to life of the unborn.’21 Books relating to women’s health, which included information on abortion services, were removed from many public libraries. The national broadcasting station, RTE, forbade any live discussion of abortion on TV or radio. Popular magazines, such as Cosmopolitan, were distributed in the Irish market with blackened out spaces in place of advertisments for abortion services.22 The silencing and

16 Coppell and O’Neill, ‘The European Court of Justice: Taking Rights Seriously?’ (1992) 29 CML Rev 669, 687. See also: R Phelan, ‘Right to Life of the Unborn vs Promotion of Trade in Services: The European Court of Justice and the Normative Shaping of the European Union’ (1992) 55 MLR 670. 17 Above n 15, paras 20 and 21 of the judgment. Coppell and O’Neill, above n 16, p 687. 18 Ibid. 19 Ibid, paras 25–27. 20 Att Gen, ex rel SPUC (Ireland) Ltd v Open Door Counselling Ltd and Dublin Well Woman Centre Ltd [1988] IR 593. 21 Ibid. 22 A Smyth, ‘The “X” Case: Women and Abortion in the Republic of Ireland 1992’ (1993) 1(2) Feminist Legal Studies 163, 170.

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exclusion of women continued in other forums. The ECJ’s ruling in the Grogan case had come while negotiations for the Maastricht treaty were ongoing. Concerned at the possibility of a backlash from anti-abortion groups, the Irish Government added a protocol to the Maastricht Treaty, without consultation at a national level. The Protocol (No 17) sought to protect Article 40.3.3 from any change that might be required as a result of Ireland’s membership of the EU. It was considered necessary to ensure support for the Maastricht Treaty in the forthcoming referendum and ultimately to facilitate the project of globalisation at the heart of EU membership. Before the referendum on Maastricht was to take place, however, a young woman’s body was to become the subject of further contestation. In February 1992, the Attorney General secured an injunction restraining a 14 year old girl, X, who was pregnant as a result of a rape, from leaving the country for a period of 9 months.23 Effectively, she was imprisoned within the State. The X case provoked a huge outcry at national and international levels. Weeks of media attention followed. International media reported Ireland to be ‘backward’, ‘barbarous’, punitive’, ‘priest-ridden’— a portrayal that did not sit well with the modernising image of an emerging Tiger economy. Embarrassed by this potentially damaging attention, the Government persuaded X and her family to appeal to the Supreme Court, undertaking to pay all legal expenses. The Supreme Court lifted the injunction, concluding that the equal right to life of the mother allowed for the termination of a pregnancy where it was established that there was a real and substantial risk to the life, as distinct from the health, of the mother. The risk to life could include a threatened suicide.24 While the Court’s judgment on the ‘substantive’ issue of abortion was welcomed by ‘pro-choice’ activists, its ruling on the right to travel for the purposes of terminating a pregnancy raised some concern. The High Court had ruled that the State’s duty to protect the life of the unborn amounted to a ‘public policy’ derogation and was, as such, permitted by Community law. The Supreme Court upheld the High Court’s finding, concluding that the right to travel, simpliciter, could not take precedence over the right to life of the unborn, unless the right to life of the mother was in danger.25 ‘Public policy’, interpreted so as to reflect an ethno-cultural identity at national level, defined the limits of the European integration project.26 The potential restriction on women’s freedom of movement, and with it, the spectre of ‘pro-life’ groups seeking injunctions to restrain pregnant women from

23

[1992] 1 IR 1. Ibid, pp 57–58, per Finlay CJ. 25 J O’Flaherty, dissenting on this point, held that restricting a woman’s right to travel would interfere to an unwarranted degree with the individual’s freedom of movement, the authority of the family and the protection of the dignity and freedom of the individual. 26 See: R Phelan, above n 16. 24

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travelling to the UK provoked widespread criticism. Now, it seemed that Protocol No 17 to the Maastricht Treaty may have been misguided. Debate ensued as to whether the Protocol would prevent a reversal of the Irish courts’ rulings on travel and information. Ratification of the Maastricht Treaty was threatened as various groups mobilised in opposition to the Government’s Protocol. In a last ditch attempt to save the ratification process, the Government sought to amend the Protocol so as to exclude any effect that it might have on issues relating to travel or the provision of information. Its efforts, however, were unsuccessful as other Member States were reluctant to re-open the Treaty negotiations. Instead, a ‘Solemn Declaration’ was adopted, which provided a ‘legal interpretation’ of the Protocol, to the effect that it excluded questions relating to freedom of travel or the provision of information. The Declaration also allowed for the possibility of amending the Protocol after the Maastricht Treaty had entered into force. In the run up to the referendum on the Maastricht Treaty, each of the political parties gave assurances that a further referendum would be held to resolve the questions raised by the X case. The referendum allowing for ratification of the Maastricht Treaty was approved by the Irish people on 18 June 1992.27 Before a further referendum on abortion could take place, the European Court of Human Rights ruled on the challenge brought against Ireland by Open Door Counselling and Dublin Well Woman Centres. The non-directive pregnancy counselling centres had claimed that the injunctions issued against them, preventing the distribution of information about abortion services available in the UK and elsewhere, was a breach of their rights to freedom of expression (Article 10) and to privacy (Article 8).28 The Court’s ruling, based exclusively on the right to freedom of expression, avoided substantive debates concerning the State’s duty to protect the fundamental rights of others or the scope of the right to privacy.29 Ultimately, the Court concluded that Ireland’s prohibition on the provision of abortion information was prescribed by law and pursued a legitimate public aim, viz, the protection of public morals. However, the interference with the applicants’ rights to freedom of expression was found to be disproportionate to the aim pursued. The impugned injunction was absolute in nature and therefore over-broad and disproportionate. The Court declined to consider 27 The 11th Amendment to the Constitution Act was enacted, amending Art 29 of the Constitution. 28 Open Door Counselling v Ireland, 29 October 1992 (1993) 15 EHRR 244. 29 The European Court of Human Rights has not ruled on whether the Convention requires Contracting States to permit a woman to terminate a pregnancy. From the Court’s jurisprudence to date, it would seem that Contracting States enjoy a very wide margin of appreciation in regulating abortion. However, the former European Commission on Human Rights has stated that placing a higher value on the ‘unborn life of the fetus’ than on the life of a pregnant women would be contrary to the object and purpose of the Convention. Application No 8416/79, X v United Kingdom, admissibility decision of 13 May 1980, 19 D&R 244. See below n 65.

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arguments concerning the right to life, noting that the applicants had not complained of the substantive prohibition on abortion per se. It did point out, however, that the applicants were providing information on services lawfully available in other Contracting states that could be crucial to a woman’s health and well-being.30 On 25 November 1992, the Government put three constitutional amendments to the people. The first proposed to roll back the Supreme Court’s judgment in the X case, prohibiting an abortion arising from a risk to life posed by a threatened suicide. The second and third protected the freedom to travel and to provide information relating to services lawfully available outside of the State. The first amendment was defeated; the second and third were both passed guaranteeing the rights to information and to travel. However, having secured the ratification of the Maastricht Treaty and fulfilled its promise of a referendum on the X case, the Government failed to introduce legislation on the substantive question of abortion. This failure ignored McCarthy J’s stern rebuke in the X case, where he described the failure of the legislature to enact appropriate legislation as ‘inexcusable’. The Eighth amendment, ‘born of public disquiet, historically divisive of our people’, was, he said, ‘bare of legislative direction.’31 In 1995, the Government finally introduced legislation allowing for the provision of abortion information.32 The Abortion Information Bill was the subject of a Supreme Court referral.33 Counsel representing the rights of the unborn, challenged the constitutionality of the Bill arguing inter alia, that, ‘... the natural law is the foundation upon which the Constitution was built and ranks superior to the Constitution.’34 The Supreme Court rejected the claim that there were limits imposed by natural law on the capacity of the people to amend the Constitution. In a pluralist society, Chief Justice Hamilton held, the religious doctrines of one particular faith tradition could not be relied on to determine the limits and scope of fundamental rights. Echoing Rawls’s appeal to ‘public, political culture’ and invoking the Preamble to the Constitution, the Chief Justice held that the constitutional text must be interpreted in the light of prevailing ideas of prudence, justice and charity.35 His views were echoed by the Constitution Review Group. Reporting in 1996, the Group concluded that the religious references in the constitutional text no longer reflected a shared sense of national identity.36 On the subject of abortion, the Group recommended the 30

Above n 28, para 76. Above n 23, p 92. 32 Regulation of Information (Services Outside the State for the Termination of Pregnancies) Act, 1995. 33 Re Article 26 and the Regulation of information (Services Outside the State for the Termination of Pregnancies) Bill, 1995 [1995] 1 IR 1. 34 Ibid. 35 Ibid, p 43. 36 Above n 8 pp 257–59. 31

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introduction of legislation to give effect to the X case judgment as the only practical possibility at that time. Despite the Group’s recommendation, however, the Government failed to act. In the absence of a clear legislative framework, the Irish Medical Council Guidelines continued to exclude a threat of suicide as a ground for terminating a pregnancy.37 The uncertain implications of the X case were again brought into focus in November 1997 in the C case.38 At the centre of the C case was a young woman, a member of the ethnic minority Travelling Community, and in the care of the Eastern Health Board. C became pregnant as a result of a rape when she was thirteen years old. Concerned at the reaction of C’s parents to the rape, the Eastern Health Board obtained a care order in respect of C and placed her with a foster mother. C had at all times expressed a wish to terminate the pregnancy. Initially, her parents agreed to support her decision and arrangements were made for C to travel to the UK. C’s father subsequently changed his mind, following intensive lobbying from antiabortion groups. The Eastern Health Board applied to the District Court for a further interim care order and a direction permitting C to travel to the UK for the purposes of terminating the pregnancy. The order was granted and C’s parents subsequently appealed to the High Court. The High Court accepted the finding that a real and substantial risk to the life, as opposed to the health, of C existed. C had threatened to take her own life. Psychiatric evidence had been submitted testifying to the risk posed to C’s life if the pregnancy was to continue. The Court concluded, therefore, that a direction authorising travel for the purposes of terminating the pregnancy was lawful. However, in a statement that was to give rise to much controversy, the Court went on to hold that the Fourteenth Amendment to the Constitution, on freedom to travel, did not introduce a new substantive right. It was intended merely to prevent injunctions against travel abroad. Where a court was asked to authorise travel abroad for the purposes of terminating a pregnancy, it was confined to considering the grounds for termination which would be lawful under the Irish Constitution and could not make a direction authorising travel to another jurisdiction for a different kind of abortion.39 In deciding whether on health grounds a termination of pregnancy was necessary, a court had to consider ‘the welfare of an Irish child in Ireland.’ The child, C, was firmly situated within the Irish legal system. The constraints that came with Ireland’s inherited traditions were to determine the limits of her right to reproductive health.

37 See: Irish Medical Council, A Guide to Ethical Conduct and Behaviour, 5th edn, (Dublin, Irish Medical Council, 1998). The Medical Council is a regulatory body established by the Medical Practitioners Act, 1978. 38 A and B, Applicants v Eastern Health Board, District Judge Mary Fahy and C, Respondents and the Attorney General [1998] 1 IR 464. 39 Ibid, p 482, per Geoghegan J.

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The same year, 1997, also witnessed the coming to power of the centreright Fianna Fáil, Progressive Democrats coalition Government. A minority Government, they were dependent for support on the votes of four independent TDs. Their support was secured by a promise of yet another abortion referendum. For the majority party in Government, Fianna Fáil, this was not problematic. The Taoiseach, Mr Bertie Ahern TD, had promised a further referendum during the election campaign. His promise was intended to placate Christian right groups and conservative Catholic voters. The Progressive Democrats, traditionally adopting a liberal view on issues such as abortion and divorce, were concerned at the prospect of yet another bitter and divisive referendum. It was agreed that a gradual process of consensus-building should precede any possible referendum. This process began with the publication of a Green paper setting out a range of legislative and constitutional options available to Government.40 Without recommending any particular path to reform the Paper pointed out the difficulties inherent in securing agreement on the precise form of any possible constitutional amendment. Article 40.3.3., intended by its supporters to provide a complete prohibition on abortion, had been turned on its head to provide equal protection to the life of the mother. The Green Paper was referred to the All-party Oireachtas Committee on the Constitution for further consideration. The Committee was unable to achieve majority support for any one of the options set out in the Green Paper.41 Despite the absence of consensus, the Government decided to opt for yet another divisive referendum, placing the Twenty-Fifth Amendement to the Constitution, (Protection of Human Life in Pregnancy Bill) 2001 before the Oireachtas. The Bill proposed a prohibition on abortion except in circumstances where there was a risk to the life of the mother, excluding the risk of suicide. It was essentially the same proposal that was put to the people and defeated in 1992. This time, however, the right to life of the unborn was to be protected only following implantation in the mother’s womb. This definition would continue to allow for the use of contracep40 Dept of The Taoiseach, Green Paper on Abortion (Dublin, Government Stationery Office, 1999). The Green Paper was prepared by an inter-departmental Working Group, charged with considering the constitutional, legal, medical, moral, social and ethical issues surrounding the question of abortion. A Cabinet Committee, composed of four men and two women oversaw the Group’s work. Submissions were invited from interested members of the public. In an unprecedented response, the Working Group received more than 10,000 submissions, with further petitions containing some 36,500 signatures. 41 See: All Party Oireachtas Committee on the Constitution, 5th Report, ‘Abortion’ (Dublin, Government Stationery Office, 2000). Three options commanded support within the Committee, though not majority support. The first was to leave the legal position unchanged and to focus instead on measures to reduce crisis pregnancies. The second was to introduce legislation to give effect to the Supreme Court judgment in the X case. The third was to amend the Constitution so as to protect existing medical practice while at the same time maintaining a prohibition on abortion—in effect rolling back the options opened by the Supreme Court judgment in the X case.

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tives such as the morning after pill. The referendum was further complicated by the proposal to incorporate the full text of the Bill into the constitutional text. Any changes, therefore, would require further referenda. The referendum was held on 6 March 2002. It was defeated by the narrowest of margins: 49.58 per cent voting Yes, to 50.42 per cent voting No. In an ironic twist of fate, the rapist at the centre of the X case was convicted and sentenced for the sexual assault of a 19 year old woman on the day preceding the referendum, 5 March 2002.42 This grim reminder of the trauma that had led to the X case litigation may have influenced the electorate. Possibly the decisive factor in the No vote, however, was the split in the antiabortion movement. Although the Roman Catholic church mobilised behind the Government’s referendum proposal, extremists in the anti-abortion movement opposed the proposed amendment because of its failure to protect human life prior to implantation. Despite this defeat, however, the prospects of a legislative framework allowing for limited rights to abortion remain remote. The willingness of Government to ignore the rights questions at the heart of these debates was evident in the Taoiseach’s (Prime Minister’s) comments following the defeat of the most recent abortion referendum. He would not, he said, be ‘in any hurry’ to legislate.43 Given the pending (second) referendum on the Treaty of Nice, and the opposition of Christian right groups to the Treaty, he could not afford to alienate them further. The draft Treaty on a Constitution for Europe, concluded under the Irish Presidency of the EU, is supplemented by a Protocol, providing that the constitutional prohibition on abortion in Ireland would not be affected by the adoption of a Constitution for Europe.44 Again we see the limits of the European integration project and the willingness of states to accommodate difference through limits imposed on women’s reproductive health. Against the background of this political wrangling, more than 7500 women would continue to travel to the UK each year to terminate their pregnancies. For unwaged or women on low incomes, this ‘freedom to travel’ would remain illusory.45 While the abortion referendum was dominating the political arena, the rights of the ‘unborn’ were being tested again in Ireland’s Supreme Court.46 Baby O and Another v Minister for Justice Equality and Law Reform involved a Nigerian woman who was seven months pregnant and subject to a deportation order from the State, following a failed application for asylum. The woman challenged the validity of the deportation order, arguing that the state’s duty to defend and vindicate Baby O’s right to life prevented the state from deporting her to Nigeria, where infant mortality rates were substantially higher and the standard of living substantially lower. The Attorney 42

See: Irish Times, 5 March 2002. See: Irish Times, 15 March 2002 and 26 March 2002. 44 See: Protocol on Art 40.3.3 of the Constitution of Ireland. 45 See: Irish Council for Civil Liberties (Women’s Committee), ‘Position Paper on the Abortion Referendum’ (Dublin, ICCL, 2002). 46 Baby O v Minister for Justice, Equality and Law Reform, [2002] 2 IR 169. 43

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General, acting on behalf of the Minister for Justice, Equality and Law Reform, appealed to the common good, to the need to defend and vindicate the territorial integrity of the State, and to the Minister’s right to deport failed asylum seekers.47 The Supreme Court agreed with the submissions of the Attorney General. The threat posed by higher infant mortality rates could not invoke the protection of Article 40.3.3º.48 The state’s duty to defend and vindicate the right to life of the unborn did not extend to ensuring the health and well-being of Baby O, or even to ensuring a safe delivery. Article 40.3.3º could not be relied on to invoke unenumerated social and economic rights, which the Court held, were not implicit within the constitutionally protected right to life.49 The Court upheld the deportation order and also refused a final application to stay the order pending a petition to the European Court of Human Rights. The ‘common good’ required a speedy deportation of the mother and fetus. Again, the narrative of nation was to prove exclusionary. The self-styled ‘pro-life’ movement, preoccupied with another referendum on abortion, had little to say in support of Baby O or her mother. Ireland’s restrictive abortion laws have been the subject of repeated criticism from UN human rights treaty bodies. CEDAW does not mention a right to reproductive health. However, in its General Recommendation on Article 12, concerning women and health, the CEDAW Committee includes reproductive and sexual health within the general protection of women’s right to health.50 Ireland has not entered a reservation to Article 12 of CEDAW. Neither has it made any interpretive declarations or reservations to the Cairo Programme of Action or the Beijing Declaration and Platform for Action. And, unlike other States parties to the Convention on the Rights of the Child (CRC),51 Ireland has not accompanied its ratification of the CRC with an interpretive declaration or reservation concerning the protection of the child before birth.52 The

47

Ibid, p 173. Ibid, p 182, per Keane CJ. 49 Ibid, p 182. 50 General Recommendation 24, Women and Health (Art 12) GAOR, 54th session, UN Doc A/54/38/Rev.1, Chapter I (1999), para 23. 51 Convention on the Rights of the Child (CRC), adopted without a vote on 20 November 1989, UN GA Res 44/25, UN Doc A/44/49 (1989) 166. 52 The 9th preambular paragraph of the CRC refers to the child’s right to legal protection before as well as after birth, reiterating the third preambular paragraph to the Declaration on the Rights of the Child. The Working Group on the Convention included an interpretive statement in the travaux preparatoires, to the effect that the ninth preambular paragraph did not have any bearing on the definition of the child as a human being in Art 1 of the Convention. It also rejected a draft savings clause providing that nothing in the Convention should affect any provisions more conducive to the rights of the child before as well as after birth. See: Alston P, ‘The Unborn Child and Abortion under the Draft Convention on the Rights of the Child’ (1990) 12 Human Rights Quarterly 156. The definition of a child continues to remain controversial. See for example the reservations and declarations entered by: Argentina; Ecuador; Guatemala; the Holy See, available at: http://www.unhchr.ch/html/menu3/b/treaty 15_asp.htm as viewed on 25 May 2002. 48

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CEDAW Committee has called for full implementation of women’s right to health, including reproductive health53 and has expressed concern that women’s right to health, including reproductive health, was being compromised by the continuing influence of the Roman Catholic Church in official State policy.54 The CEDAW Committee also pointed to the particular hardships experienced by vulnerable groups of women, such as female asylum-seekers, for whom an attempt to leave the territory of the State could lead to criminal prosecution.55 The UN Human Rights Committee has added its voice to these criticisms and has highlighted Ireland’s obligations under Article 7 of the International Covenant on Civil and Political Rights, pointing out that compelling a woman to continue with a pregnancy, particularly where that pregnancy is a result of rape, may be in violation of the prohibition on torture, cruel, inhuman and degrading treatment.56 This scrutiny of Ireland’s abortion laws has led Christian right groups to mobilise in opposition to the UN human rights agenda. This opposition can be seen in Neart’s alternative report to the Beijing + 5 meeting57 and more recently in its submissions on the Beijing + 10 review process.58 It can also be seen in the opposition raised by Christian right movements to the Rome Statute for an International Criminal Court,59 ratified by Ireland on 14 April 2002, following a referendum and constitutional amendment.60 Ireland’s ratification of the

53 Report of the Committee on the Elimination of Discrimination Against Women on its Twenty-First Session, U.N. GAOR, 54th Sess., Supp. No 38 Pt II¶180, U.N. Doc. A/54/38/Rev.1 (1999) (concluding observations on Ireland). 54 Ibid. 55 Ibid, para 185. 56 Concluding Observations of the Human Rights Committee: Ireland, adopted 21 July 2000, GAOR, Hum. Rts. Comm., 69th Sess., 1858th mtg., para. 18, U.N. Doc. CCPR/Co/69/IRL (2000). See also General Comment No. 28 Equality of Rights Between Men and Women, adopted 29 Mar. 2000, U.N. GAOR Hum Rts. Comm., 68th Sess., 1834th mtg., ¶ 11, U.N. Doc. CCPR/C/21/Rev. 1/Add.10 (2000). The Human Rights Committee has expressed similar concerns in relation to the restrictive abortion laws in Poland. See Concluding Observations of the Human Rights Committee: Poland, adopted 28 July 1999, U.N. GAOR, Hum. Rts. Comm., 66th Sess., 1779th mtg., U.N. Doc. CCPR/C/79/Add.110 (1999). In particular, the Committee has noted ‘with concern’ the strict laws on abortion ‘which lead to high numbers of clandestine abortions with attendant risks to life and health of women.’ Id. ¶ 11. 57 Neart, ‘Beijing + 5: Alternative Report for Ireland’, 62 pp. 2000. 58 See: Neart. Beijing + 10: Submission to the Strategic Review Committee on the Implementation of the Beijing Platform for Action in Ireland, February 2002 available at: http://www.justice.ie/80256E010039C5AF/vWeb/flJUSQ6ARE3V-en/$File/Group 64.pdf. 59 The referendum was opposed by Christian right groups including Neart, Family Solidarity and the Christian Solidarity Party. See: R Wilkins, ‘International Criminal Court: The Dangers’ (2001) Family Solidarity 5. 60 See: 23rd Amendment to the Constitution Act, 2002.

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Rome Statute was not accompanied by any reservation or declaration concerning the import of including ‘forced pregnancy’ within the definition of a crime against humanity.61 Drawing on international human rights instruments, the Irish Family Planning Association has recently launched the ‘Safe and Legal in Ireland’ campaign, calling for the provision of legal abortion services in Ireland.62 Central to the campaign is a legal challenge against Ireland’s abortion laws under the ECHR. The challenge is based on complaints submitted by three Irish women who have had abortions in the UK and claims that Ireland’s restrictive abortion laws violate the State’s duties under Articles 2, 3, 8 and 14 of the ECHR.63 The challenge builds on the growing, though tentative, body of case law under the ECHR safeguarding women’s reproductive rights. It follows quickly on the CEDAW Committee’s criticism of Ireland’s ‘very restrictive abortion laws’ and the continuing refusal of the Irish Government to provide a legislative framework for abortion in line with the Supreme Court’s judgment in the X case. This refusal was again highlighted by the Irish Government in its response to questioning from the CEDAW Committee.64 This refusal raises questions, at the very least, as to the State’s compliance not only with its positive obligations under provisions such as Article 2 of the ECHR, which has been interpreted as including a duty to protect the life of a pregnant woman.65 Ireland did not enter any interpretive declarations or reservations to the Cairo Programme of Action or the Beijing Declaration and Platform for Action. Speaking at the Cairo + 5 review meeting, however, the Minister for Health, emphasised the importance of recognising that abortion policy and legislation were ‘a matter for each country to determine for itself.’66

61 See: Art 7(2) of the Rome Statute for an International Criminal Court, UN Doc A/CONF.183/9 (1998). 62 See: ‘IFPA Launches Campaign for Safe and Legal Abortion in Ireland’, 9Aug 2005 available at http://www.ifpa.ie/news/index.php?mr+111. 63 The ECHR was incorporated into Irish law in 2003, European Convention on Human Rights Act, 2003. The Convention is incorporated at a sub-constitutional level. 64 See: Examination of Ireland’s 4th and 5th Reports under the Convention on the Elimination of All Forms of Discrimination Against Women: National Statement, available at: http://www.justice.ie,/80256E01003A02CF/vWeb/flJUSQ6EADJX-en/$File/CEDAW statement.pdf. 65 See: Paton v UK [1981] 3 EHRR 408. The European Commission on Human Rights noted that the fetus is inseparable from the pregnant woman. The Commission and the Court have repeatedly declined to grant a fetus protection as a human person under Art 2. See: RH v Norway (1992) decision on admissibility, App. No. 17004/90, Eur. Comm. H.R., 19 May 1992; Boso v Italy (2002) App. No. 50490/99, Eur. Comm. H.R., 5 September 2002.; Vo v France (2004) App. no. 53924/00[2004] ECHR 326 (8 July 2004) 66 Brian Cowen, Address at the United Nations Special Session of the General Assembly for the Review and Appraisal of the Implementation of the Program of Action of the International Conference on Population and Development (30 June 1999), archived at: http://www.undp.org/ popin/unpopcom/32ndsess/gass/state/ireland.pdf, as viewed on 15 October 2002.

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No such defences were raised at the Beijing + 5 review meeting, held just one year later. Addressing the Special Session of the General Assembly, the Minister for Justice, Equality and Law Reform emphasised Ireland’s ‘full endorsement’ of the Beijing Declaration and Platform for Action and agreed that there should be no re-negotiation of the 1995 texts.67 This difference in approach might be explained by the more ambiguous language in the Beijing Declaration and Platform. It might also be explained by the Government’s growing recognition of the difficulties that any such re-negotiation would create. The preparatory process for Beijing + 5 was a difficult one at national level, with Christian right groups repeatedly challenging the tenets of the Beijing texts. The Minister for Justice, Equality and Law Reform was all too aware of the religious–cultural claims that could be raised by states if the original texts were re-opened.68 Similar difficulties arose in preparations for the Beijing + 10 review process, with the result that Government efforts focused on maintaining the status quo rather than reviewing progress in implementing the Platform. In its submission on the Beijing + 10 review, Neart again emphasized its opposition to CEDAW and to the concept of reproductive rights, repeatedly appealing to the ‘objective moral order and natural law’. Mirroring the strategies of conservative Christian groups at international level, Neart links recognition of reproductive rights with the promotion of ‘incomplete froms of family’ and ‘reproductive wrongs’, and calls for the use of the term ‘family orientation’ in place of sexual orientation in discussions on reproductive or sexual health. The term ‘right reproduction’ is proposed in placed of reproductive rights, to ensure that the ‘objective procreative/unitive basis and

67 In the build up to the Beijing + 5 review meeting, many feared that conservative forces would try to undermine the Beijing Declaration and Platform. In the final negotiations, however, the coalition of the Holy See and G-77 states disintegrated. Led by Brazil and Peru, a new bloc emerged—known as Some Latin American Countries (SLAC). SLAC came under intense pressure from the Holy See and certain other members of the G-77. Its strengths grew, however. It was joined by the 14 Caribbean CARICOM countries (thus becoming ‘SLACC’) and in the final negotiations worked closely with India and the bloc of Southern African countries known as SADC, as well as Cameroon, Ghana, and Kenya. This fragmentation ensured that the Beijing Declaration and Platform were accepted as a floor for further negotiations. Attempts to roll back the achievements of Beijing, the ICPD and the ICPD + 5 were thwarted. However, little was achieved in the way of progress. Against a background of fragmentation and dissent between states, negotiations were largely focused on containment rather than progress. See generally: Center for Reproductive Law and Policy. Beijing + 5: Assessing Reproductive Rights, November 2000; accessed 6 November 2000. Available at: http://www.crlp.org/pub_art_beijing5.html. 68 See: Department of Justice, Equality and Law Reform, UN General Assembly Special Session ‘Women 2000: Gender Equality, Development and Peace for the 21st Century’: National Forum for Non-governmental Organisations, 10 May 2000, Report on Proceedings, Dublin, 2000.

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natural teleology [...] of sex, sexuality and reproduction are clear, to the forefront and protected.’69 The appeals to a ‘natural teleology’ reveal a continuing refusal to shift beyond a conception of rights rooted in conservative Catholic teachings. The rejection by Christian right groups of a cosmopolitan point of view can also be seen in their failure to engage with the claims made by migrant families in Ireland and in the response of the Irish courts to migrant families, appeal to the discourse of rights. In the context of migrant women, appeals to the constitutional provisions on family life70 and to the State’s duty to defend and vindicate the right to life of the unborn have met with little success. The State’s interest in immigration control, an interest that, in the words of the High Court, is recognised ‘universally and from earliest times’,71 has been granted priority. In the citizenship debates in Ireland, the power of citizenship laws to exclude is clearly evident. Women, migrant families and their children are all excluded from a polity that prides itself as being cosmopolitan. Through the vilification and increasing control of migrant women’s bodies, we see a re-assertion of a limited form of national sovereignty and a racism that functions through reference to reproduction, ‘understood as gendered, classed, racialized labour that can be carried out for the State—or against the State’.72 Migrant women’s assertion of reproductive autonomy threatened to destabilise the racial homogeneity of the nation State. In response to this ‘threat’, Ireland has introduced citizenship laws that seek, yet again, to restrict women’s autonomy, mobility and agency. Drawing on the critiques put forward by the Vatican and its allies, Christian right groups in Ireland have rejected human rights discourse as impoverished, libertarian and peculiarly western.73 In doing so, they have exposed the dangers to feminism of yielding to communitarian and cultural claims. In the context of the abortion debate, such claims have meant that where a woman lives determines whether her experience of abortion is that

69 Neart. Beijing + 10: Submission to the Strategic Review Committee on the Implementation of the Beijing Platform for Action in Ireland, February 2002. available at: http:// www.justice.ie/80256E010039C5AF/vWeb/flJUSQ6ARE3V-en/$File/Group 64.pdf, pp 31–32. 70 See: Lobe and Osayande v Minister for Justice, Equality and Law Reform [2003] IESC 1. See above pp. 134–135. 71 Osheku v Ireland [1986] IR 733, p 746, per Gannon J. 72 E Luibhéid, ‘Globalisation and Sexuality: Redrawing Racial and National Boundaries through Discourses of Childbearing’, paper presented at Migrant Women: Transforming Ireland Conference (Dublin, TCD, 2003) 85. See also: S Mullaly ‘Crossing borders: Gender, Citizenship and Reproductive Autonomy in Ireland. In S van Walsum Women and Immigration Law: New Perspectives on Classical Themes (London, Glasshouse Press, 2006). 73 MA Glendon, Rights Talk: The Impoverishment of Legal Discourse (New York, NY, Macmillan, 1991); MA Glendon, Abortion and Divorce in Western Law (Cambridge, MA, Harvard University Press, 1987).

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of ‘a safe, legal method for terminating an unwanted pregnancy or a dangerous, painful and criminal act.’74 This debate is continuing within Europe, where the Vatican is now battling to secure greater influence within the European Union. The willingness of the Union to yield to the Vatican will determine whether or not citizenship of the Union becomes ever more gendered.75 B. FROM ‘ETHNOS’ TO ‘DEMOS’

Within Ireland’s constitutional text, we see quite clearly the tensions that arise between, on the one hand, a liberal rights-based democracy and, on the other, a communitarian ethos that appeals to an explicitly Christian (and for the most part Catholic) conception of the common good.76 This tension is signalled early on in the Preamble and continues in the appeals to the Christian and democratic nature of the state that have underpinned the development of fundamental rights jurisprudence.77 For many years, it was presumed that such tensions could be resolved by an appeal to the ‘ethical values, which all Christians living in the State acknowledge and accept’.78 A politics of presumed consensus prevailed. Given the dominant position of the Roman Catholic Church in the early years of independence, and its role in the drafting of Bunreacht na hÉireann, this is not surprising. In more recent years, however, we have witnessed what Habermas would describe as a shift from ‘ethnos’ to ‘demos’ in legal discourse. As the Supreme Court and the Constitution Review Group have highlighted, the religious references in the Irish constitutional text can no longer claim to reflect a shared sense of national identity. The solidarity of citizens is no longer presumed to lie in a singular religious–cultural identity, but has shifted instead to the more abstract foundation of a ‘constitutional patriotism’.79 With this shift, the search for a background consensus, constructed on the basis of religious–cultural homogeneity, can no longer claim to have any purpose, and 74 K Sundstrom, ‘Abortion: A Reproductive Health Issue 1993’ cited in MK Eriksson, ‘Abortion and Reproductive Health: Making International Law More Responsive to Women’s Needs’ in D Askin Kelly and MD Koenig, (eds), Women and International Human Rights Law, vol 3 (New York, NY, Transnational, 2000) 3, 6. 75 On the debates surrounding the proposed insertion of references to ‘God’ in the Constitution for Europe, see generally: Catholics for a Free Choice, Catholics Join Coalition of 165 European NGOs in Appeal to Convention not to give Religion Unfair Influence in Constitutional Treaty, available at: http://www.cath4choice.org/new/pressrelease/052203Article37.htm. 76 See: G Quinn, ‘Reflections on the Legitimacy of Judicial Activism in the Field of Constitutional Law’ (1991) Dli 29; G Whyte, ‘Constitutional Adjudication, Ideology and Access to the Courts’ in A Whelan, (ed), Law and Liberty in Ireland (Dublin, Oaktree, 1993) 149. 77 See for example, Norris v Attorney General [1984] IR 36; Ryan v Attorney General, above n 7. 78 The People v Shaw [1982] IR 1, per Kenny J. 79 J Habermas, Postnational Constellation: Political Essays (Cambridge, Polity, 2001) 74.

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is superfluous to the process of nation-building. The task of creating a common political culture is instead given to the democratic process. To the extent that it is successful, this process should make possible a reasonable political understanding, even among strangers.80 The decoupling of the majority culture from political–legal cultures can be a painful process, and, as we have seen, may lead to a conservative backlash. This backlash poses a challenge for feminist movements, concerned, on the one hand, to develop difference-sensitive models of inclusion, and, on the other hand, to safeguard and promote gender equality. The shift from ‘ethnos’ to ‘demos’ in legal discourse in Ireland has opened up more space for feminist debate. The move towards a more heterogenous public sphere has allowed feminism to reclaim a public identity for women and to assert rights to equal citizenship that appeal, not to cultural traditions or beliefs, but to the core moral principles of universal respect and egalitarian reciprocity. The shift from ethnos to demos, limited though it is, can be attributed to a number of factors. Meeting the demands of globalisation required that Ireland assert itself as a modern European state, capable of feeding the appetite of the Celtic Tiger economy. The demands of the Celtic Tiger economy required an expanded labour-force, demands that did not sit well the gendered division of labour that saw the vast majority of married women, working full-time within the domestic sphere. Ireland’s economic expansion coincided with a multi-party peace agreement in Northern Ireland, leading to changes in the structures of governance both North and South. The Good Friday Agreement required a recognition of the diversity of identities and traditions on the island of Ireland.81 Irishness could no longer be defined simply as ‘not English’. ‘Reinventing Ireland’82 to meet the changing political and economic context meant searching for an identity that would allow greater space for diversity. That search has led to an expanded equality agenda, employment equality and equal status legislation and constitutional changes.83 These constitutional changes recognise the increasing fragmentation and diversity within the ‘we’ of the ‘we the people’, altering the expectations of democratic legitimacy within the State.

80

Ibid, p 73. Agreement reached in the Multi-Party Negotiations, April 10th 1998 (the Good Friday Agreement), reproduced at (1998) 37 ILM 751. See generally: Harvey C and Livingstone S. Human Rights and the Northern Ireland Peace Process. European Human Rights Law Review. 1999; 162-177; Harvey C J (ed.). Human rights, Equality, and Democratic renewal in Northern Ireland. Oxford: Hart Publishing; 2001; Colin Harvey. Governing After the Rights Revolution. (2000) 27 Journal of Law and Society 61-97. 82 This phrase is adapted from D Kiberd, Inventing Ireland: The Literature of the Modern Ireland (London, Vintage, 1996). 83 See: Employment Equality Act, 1998; Equal Status Act, 2000 and the 19th Amendment to the Constitution Act, 1998, inserting revised Arts 2 and 3 into the Constitution. See generally: S Mullally, ‘Mainstreaming Equality in Ireland: A Fair and Inclusive Accommodation for All?’ (2001) 21(1) Legal Studies 99. 81

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No longer can the courts read the parameters of fundamental rights from a single set of religious beliefs or ‘ethnos’. As debates surrounding women’s roles within the family reveal, Ireland’s inherited traditions are in a state of flux. Everyday certainties have lost their governing force. Against this background, the modern nation state must recreate itself. The challenge for the State, as the revised Article 3 of the Constitution suggests, is to create an inclusive model of statehood that recognises the diversity of identities and traditions within the State and allows individuals and groups to engage in an ongoing process of tranforming cultural legacies. In the claims of Christian right movements, we see an attempt to deny this process and a refusal to open up the domains of family and reproductive health to greater scrutiny. In resisting reform, Christian right movements are attempting to deny the openness and dynamism that comes with human rights discourse. Their particularistic claims find support in postcolonial discourses that appeal to the process of nation-building, the rhetoric of difference and the right to self-determination. However, neither the rhetoric of self-determination nor that of difference goes very far. Women’s right to reproductive self-determination has been denied, as Christian right movements, supported by the State, have refused to expand the concept of ‘bodily integrity’ to include reproductive autonomy. Women’s right to determine their roles and responsibilities within the family have also been constrained by religious–cultural claims that seek to limit the re-negotiation of dominant traditions. The denial of women’s right to self-determination can be traced back to the origins of the State, when the suffrage movement was denied support by the Home Rule movement. National self-determination did not extend to selfdetermination within. Attempts to silence dissenting voices continue today. As we noted in the previous chapter, every nationalist movement has within itself, a marginalised ‘other’. The Christian right leaves little space for the ‘other’. In submissions on the Beijing + 10 review process, for example, calls are made for recognition of the special role of the Catholic Church in Ireland seeking a return to the pre–1972 position when the special position of the Church was given constitutional recognition.84 The voices of feminist movements, in particular, have been silenced, as the pursuit of gender equality has been sacrificed to the greater good of nation-building. The voices of religious and sexual minorities have similarly been silenced, in the drive to preserve a unified singular ‘ethnos’ to support the State’s claim to national self-determination. Throughout this book, I have argued that remaining within the confines of the local, leaves feminism negotiating many competing cultural claims. The pursuit of gender equality gets lost. In the Irish context, these competing

84

Above n 69, p 61.

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claims find their roots in liberal rights-based constitutional principles, egalitarian Roman Catholic teachings and conservative Roman Catholic doctrine. We see these competing claims within the constitutional text itself. Negotiating between these claims requires a normative framework that defines the limits of reasonable pluralism and sets the core principles of universal respect and egalitarian reciprocity as parameters to any debate. Only within such a universalistic framework can space for the ‘other’ and for differences within the polity, be created. In Benhabib’s discussion of the dual-track approach to cultural conflicts, she gives further content to these core principles. A just multicultural arrangement must conform to the three requirements of: egalitarian reciprocity; voluntary self-ascription; right of exit. These three requirements, form the basis for the legal regulation of cultural claims. Combined with an expanded moral political dialogue, they make up Benhabib’s dual-track approach to an issue that has occupied much of recent feminist debate—the negotiation of cultural conflicts. The negotiation of religious–cultural claims in Ireland provides us with a useful context within which to explore the potential of Benhabib’s dual-track approach. In her discussion of cultural claims, Benhabib takes us beyond the limits of Rawlsian political liberalism, and of Habermasian discourse ethics. She breaks down the public/private divide that underpins the ‘defence of culture’, and remains largely unchallenged by either Rawls or Habermas. Unlike Rawlsian political liberalism, which assumes a distinction between the public political cultural and background cultures, Benhabib’s discourse ethics recognises the intersections between the public and domestic spheres and the need for openness to dialogue and reform in each. In the debates on the nature of the family and rights and responsibilities within the family unit in Ireland, we can see the futility of any attempt to distinguish between background cultures and the public political culture. Beliefs and practices that flourish within so-called background cultures impinge upon and constrain women and men’s participation in public life. This is why an expanded moral–political dialogue taking place within both public and private domains is necessary. Habermas speaks of the discursive processes of opinion and will formation within the public sphere. Benhabib takes this further, recognising the need for an ongoing dialogue at the level of the individual, community, family, and the State. In the debates on women’s roles within the domestic sphere in Ireland, we see the necessity of legal regulation that draws upon universal principles. We also see, however, the necessity of an expanded moral–political dialogue that takes place at the level of the State but also at the level of religious–cultural communities. An ongoing process of dialogue allows for the possibility of mediating universal norms and creates a space within which it may be possible to communicate with and to recognise the claims of the ‘other’. An ongoing process of dialogue may not lead to consensus but may, at the very least, create a more heterogenous public sphere and a genuine

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flourishing of difference. Christian right movements in Ireland have attempted to limit the space for difference within public and private spheres. The ongoing dialogue generated in response to their claims, has, nonetheless, contributed to an expansion of the equality agenda in recent times. The National Women’s Council and others have called for greater recognition of the affective dimensions of equality and the role played by those working as full-time carers, usually women. The resistance raised by the Christian right to tax individualisation plans has brought the gendered dimensions of Article 41.2 into public debate, challenging Government to address the inequalities faced by those working full-time in the domestic sphere, while at the same time challenging the gendered nature of Ireland’s constitutional text. The importance of the dual-track approach, from a feminist perspective, is that the ongoing dialogue takes place within a universalist framework that places a commitment to equality at the heart of any process of constitutional adjudication. In Ireland, as we have seen, the constitutional guarantee of equality is not a core norm. As a result, it is frequently in danger ‘of losing out in the inevitable boundary adjustment between it and other rights.’85 Defining equality as a constitutional essential, an essential that trumps other claims, poses a significant challenge to the claims of Christian right movements. Under the dual-track approach, the requirement to respect women’s right to equal treatment takes priority over any appeal to Ireland’s inherited traditions, imagined or otherwise. The transformative potential of such an approach is immediately apparent. Article 41.2 could no longer sustain its gender-specificity, but would require reform along the lines suggested by the Constitution Review Group to recognise the importance of caring work carried out by either women or men. Securing the effective enforcement of the equality guarantee requires that relations between non-state actors would be subject to the same degree of scrutiny as relations between the citizen and the State, thus bringing about a horizontal application of the equality guarantee. The reproductive rights debate poses a significant challenge to discourse ethics and the dual-track approach. Benhabib does not discuss this particular cultural conflict in her discussion on the claims of culture. In the U.S., the rise of the Christian right and the attempt to roll back Roe v Wade,86 tests the limits of the US claim to being a pluralist democratic state. In Ireland, the State has proven particularly reluctant to distance itself from religious–cultural claims concerning reproductive rights. Reproductive rights continue to be limited by the inherited traditions of a singular ‘ethnos’. In the Supreme Court judgment on the Abortion Information Bill, we

85 86

Above n 8, p 222. Roe v Wade 410 U.S. 113 (1973).

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see a shift from ‘ethnos’ to ‘demos’, and a recognition, albeit limited, that women’s reproductive rights cannot be defined by the teachings of one particular faith tradition. The European Court of Human Rights, in upholding the right to distribute information concerning abortion services, contributed to the recognition of reproductive rights and, in doing so, set limits on the claims to difference that could be accommodated within a human rights paradigm. The ECJ, in a judgment that fell short of recognising the right to information about abortion services as such, nonetheless refused to yield to the local, particularistic claims asserted by the State and supported by the Advocate General. In these judgments, we see an attempt to set limits on the State’s claims to religious–cultural difference. Further attempts at defining such limits can be seen in the concluding observations of CEDAW and the Human Rights Committee, adopted in response to Ireland’s reports. At first glance, it is difficult to see how the dual-track approach and discourse ethics in general can contribute to this debate. The abortion debate has been subject to an ongoing process of democratic dialogue in Ireland for more than two decades, and remains, as yet, unresolved. What insights can the dual-track approach bring to this debate? Critics of discourse ethics have argued that the procedural model is too ‘thin’ to give rise to any substantive outcomes or conclusions about rights. It is this very proceduralism of discourse ethics, however, that creates greater space for difference, and allows discourse participants to determine the progress of the law, within the constraints set by the requirements of communicative action. For deliberative democrats, it is the democratic procedure for the production of law that is the source of legitimacy. Discourse ethics cannot guarantee any particular outcome and does not propose substantive outcomes to such debates. Already, however, in the shift from ‘ethnos’ to ‘demos’ that comes with intersubjective communication and a presumption of difference, there is a change in the parameters of the abortion debate. A commitment to respecting the democratic procedure for the production of law, would suggest, at the very least, that in the Irish context, legislation would be introduced to give effect to the X case judgment. Two successive referendums have rejected proposals to roll back the judgment. The Government, however, has failed to act, yielding to religious–cultural claims that refuse to accord equal respect to the diverse voices in this debate. Imposing limits on the provision of abortion information distorts any process of communication and so falls outside of the limits set by the requirements of communicative action. We could also argue that the core principle of egalitarian reciprocity requires discourse participants to suspend their own religious–cultural beliefs and take seriously the point of view of those who adhere to different comprehensive doctrines—or none. In its submission to the Inter-departmental Working Group on Abortion, Catholics for a Free Choice (CFFC), argued that even in a predominantly

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Catholic country, laws governing abortion should be formulated on secular, plural, democratic principles.87 Taking differences seriously, would suggest the need for greater openness to change and to reform of restrictive abortion laws. Applying Benhabib’s key requirements of a just multicultural arrangement, changes the parameters of the abortion debate even further. Restrictions on the right to travel deny a woman a right of exit, the possibility of opting of the restrictive abortion laws imposed by a particular community. It is this idea that underpins the concept of ‘forced pregnancy’, now recognised as potentially amounting to torture or inhuman treatment, or in extreme circumstances, a crime against humanity. A pregnancy is forced when there is no possibility of exit—when a State’s restrictive abortion laws, for example, limit the possibilities of opting out. Within international human rights law, the concept of ‘forced pregnancy’ has been applied primarily in the context of pregnancies resulting from rape.88 However, just as the concept of rape has expanded—most notably in the Akayesu judgment of the Rwanda Tribunal89—so also, the meaning of ‘forced pregnancy’ may expand to encompass a broader understanding of reproductive rights and of the right of exit. The requirement of voluntary self-ascription, outlined by Benhabib in her discussion of community membership, is rooted in the idea of selfdetermination and the priority of individual autonomy. Reproductive selfdetermination and reproductive autonomy have been key demands of feminist movements in Ireland. The right to bodily integrity, although recognised as a personal right, has not expanded to include reproductive self-determination. The recognition of the ‘equal right to life of the mother’ led to the X case judgment, and the declaration of a limited right to terminate a pregnancy in Ireland. As yet, however, no legislative framework has been adopted to secure this right. For women who may be unable to travel to another jurisdiction, the right to reproductive health remains illusory. Recognising the right to be treated as an equal, as a constitutional essential, also has implications for the debate on reproductive rights. In its General Recommendation 24, on the right to health, CEDAW points out that it is discriminatory for a State party to refuse to provide legally for the performance of certain reproductive health services for women.90 Expanding

87 See: Catholics for a Free Choice: Opening Remarks by Catholics for a Free Choice to the All-party Oireachtas Committee on The Constitution Wednesday 12 July 2000, available at: http://www.cath4choice.org/new/pressrelease/071200DublinAbortionReform.htm accessed on 20 September 2003. 88 See: General Comment No. 28, Equality of Rights Between Men and Women, adopted 29 Mar. 2000, U.N. GAOR, Hum. Rts. Comm., 68th Sess., 1834th mtg., ¶ 11, U.N. Doc. CCPR/C/21/Rev.1/Add.10 (2000). 89 Prosecutor v Jean Paul Akayesu, 2 September 1998, ICTR–96–4–T. 90 Above n 50.

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on this, we could argue that neglecting an aspect of health care, that is required primarily or uniquely by women, violates the norm of non-discrimination. In denying women access to abortion services, and leaving women with no option but to travel to another jurisdiction to avail of those services, women’s equal right to citizenship is compromised by the State. A woman’s reproductive health is determined by the application of laws rooted in religious–cultural traditions, laws that do not comply with universal principles of human rights. Article 3 of the Constitution sets out a constitutional imperative to recognize the diversity of identities and traditions on the island of Ireland. This requires a shift in our understanding of citizenship, a return to the idea of the citizen as citoyen, which is, ‘at once more open and less rigid than the traditional idea of ethnic belonging.’91 In the context of reproductive health, such a shift would bring with it a greater recognition of women’s right to autonomy in matters relating to reproduction. The holding of repeated referendums on the subject of abortion, also compromises women’s equal right to citizenship, as the limits of women’s right to health appear to be open to negotiation, subject to the vagaries of the referendum process. Discourse ethics and Benhabib’s dual-track approach set limits to the terms of any discourse. The core principles of universal respect and egalitarian reciprocity may not be compromised, though they fall to be implemented in varying historical, cultural and political contexts. In subjecting women’s reproductive rights to repeated referendums, the State displays a willingness to compromise on the terms of women’s citizenship. C. CONCLUDING REMARKS

The inherent dualism within the law, which Habermas characterises as a tension between facts and norms, can be seen within the abortion debates. This tension, between the concrete realities of women’s daily lives and limited reproductive autonomy, has led to limited legal reforms. However, a tension remains, between the increasingly pluralist nature of Irish society and the reluctance to recognise this pluralism in the regulation of reproductive rights. In Ireland, appeals to an ethno-cultural national identity, have denied women’s claims to equal citizenship, to equality within public and private spheres, and to reproductive autonomy. Far from protecting difference, such appeals have sought to deny difference within the nation-state, leading to a narrative of nationhood that was and continues to be exclusionary. Against this background, the space for feminist debate has been limited. 91 RV Thadden, ‘Die Botschaft der Bruderlichkeit, Suddeutsche Zeitung’, 26–27 November 1988, cited in J Habermas, Between Facts and Norms: Contribution to a Discourse Theory of Law and Democracy (Cambridge, MA, MIT Press, 1996) 466.

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The drafters of the 1937 Constitution chose to define women’s lives as inextricably bound up with the domestic sphere. Political activity was defined as exclusively male, with women denied the possibility of claiming for themselves a public identity. The constitutional equality guarantee, denied horizontal application between non-state actors, did little to address gender injustices occurring with the private sphere. The transformative potential of human rights discourse was limited as claims to difference were silenced and any attempt to challenge the binary divisions between male and female, quickly crushed. In seeking to move beyond those divisions, feminists have invoked universalistic principles of human rights and claimed the right to renegotiate religious–cultural legacies. The institutional materials of international human rights law have assisted in this process, limited in scope though they may be. The Government’s reluctance to shift from ‘ethnos’ to ‘demos’ in matters relating to reproductive health reflects a continuing division between the public and the private domains. This division permeates the constitutional text limiting the scope of the equality guarantees and closing off the possibilities of reform within domains labelled as private. Unlike Rawlsian political liberalism, and Habermasian discourse ethics, Benhabib’s dualtrack approach rejects such gendered divisions between the public and the private. It is not hostile to liberalism, as such, but it tries to move beyond the constraints of its inherited traditions, in particular, the divisions between public and private that continue to permeate Rawls’s discussion of cultural conflicts. For feminism, this challenge to the public/private divide is particularly important. Equally important is the commitment within the dual-track approach to the universalistic discourse of human rights. As yet, human rights discourse has not succeeded in realising its transformative potential in Ireland. Some might argue that this failure is inevitable, that the discourse of human rights is inherently limited. This line of argument, however, cedes too much to established legal rules and practices. It fails to recognise the potential for reform that comes with a deliberative model of democracy, a commitment to human rights universally recognised, and a truly participatory approach to law-making processes. As Habermas, Benhabib and others have recognised, realising that potential requires us to reconceptualise the nation-state and international law. If the discourse of human rights is to support an emancipatory feminist agenda, the state must be viewed, not as the personification of an ethno–cultural identity, but as an agent for the enforcement and protection of human rights, universally valid. The shift from a state-centred conception of international law to a cosmopolitan world order requires that the religious–cultural claims made by states are subject to careful scrutiny. At the heart of any such scrutiny must be a recognition of the legitimacy of women’s rights to universal respect and egalitarian reciprocity. Without

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this recognition, feminist claims, whether seeking reform within the family or reproductive autonomy for women, risk getting lost within a web of competing cultural claims. The subordination of gender equality to religious–cultural nationalism is not unique to Ireland. The next chapter looks at the debates on gender equality in Pakistan and the continuing conflicts that arise between the pursuit of gender equality, on the one hand, and appeals to a conservative nationalist Islam, on the other. Islam has served as a legitimising ideology for the troubled nation-state. As we shall see, it is an ideology that has often denied the universal legitimacy of women’s human rights claims in the name of preserving national unity. Against this background, feminists have adopted varied strategies in their pursuit of reform.

9 Women, Human Rights and Cultural Claims in Pakistan

S

Pakistan have tried, not always with a great deal of success, to define and demarcate the boundaries within which the ‘injunctions of islam’ were to be applied. Although Pakistan came into being to provide a separate homeland for Indian Muslims, the precise role that Islam was to play within the constitutional framework of the State was unclear. Many Muslim groups in the Indian subcontinent were hostile to the Pakistan movement because of its leaders’ secular aspirations.1 However, despite the fact that the call for a separate Muslim state reflected the secular aspirations of the Pakistan movement, Islam was increasingly evoked as a legitimising, if tenuous, ideology for Pakistani unity and integrity. In pre-partition India, Islam was a communally based religion that had come to serve as an ethnic marker for the Muslim community. In the case of Pakistan, it became integral to nationhood itself.2 The role of religious discourse in the processes of nation-building was to have a significant impact on women in Pakistan. Provisional Constitution Order No 1, proclaimed in the immediate aftermath of the 1999 military coup, provided that Pakistan would be governed ‘as nearly as may be’, in accordance with the Constitution.3 Fundamental rights were, yet again, to UCCESSIVE CONSTITUTIONS IN

1 GW Choudhury, Constitutional Development in Pakistan, 2nd edn, (London, Lowe & Brydone, 1969); A Jalal, The Sole Spokesman: Jinnah, The Muslim League and the Demand for Pakistan (Lahore, Sang-e-Meel, 1992); CH Kennedy, ‘Repugnancy to Islam—Who Decides? Islam and Legal Reform in Pakistan’ (1992) 41 ICLQ 769; See generally: SS Ali and J Rehman, ‘Indigenous Peoples and Ethnic Minorities’ in Pakistan: Constitutional and Legal Perspectives (London, Curzon Press, 2001); R Mehdi, The Islamization of the Law in Pakistan (London, Curzon Press, 1994); F Rahman, ‘Islam and the Constitutional Problem of Pakistan’ (1970) XXXII Studia Islamica 275. 2 D Kandiyoti, (ed), Women, Islam and the State (Basingstoke, Macmillan, 1991); V Moghadam, ‘Patriarchy and the Politics of Gender in Modernising Societies: Iran, Pakistan and Afghanistan’ (1992) 7 International Sociology 35. 3 See Government of Pakistan, Provisional Constitution Order No1 of 1999. The full text of the order is available at: http://www.pak.gov.pk/public/govt/reports/ accessed on 1 July 2003. Proclamations_text.htm, as viewed on 1 July 2002. The Order placed the constitution in abeyance and sanctioned the suspension of the national and provincial assemblies. The Constitution of Pakistan has now been restored. The restoration of the Constitution was carried out in phases on 15 November 2002, 24 November 2002, 31 December 2002 and 12

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lose out to the requirements of nation-building. For women in Pakistan, such compromises are commonplace. Constitutional essentials, guaranteeing equality before the law and prohibiting discrimination on the basis of sex, have frequently lost out to religious–cultural claims that appeal to a singular ‘ethnos’ to support Pakistan’s claims to nationhood. As in Ireland, religious–cultural claims in Pakistan have sought to deny the significance of difference within the Pakistani polity. The strategies of denial adopted by religious leaders and Islamist Governments have relied, in particular, on a gendered division between domains labeled as public and as private. These divisions have limited the application of universal human rights principles to the domestic sphere, the sphere of reproduction, family and sexual relations. Feminist movements in Pakistan have drawn on a wide range of strategies in an attempt to secure reform. Some have adopted insider methodologies, appealing to an egalitarian Islam. Others have adopted secularist strategies, refusing to limit their claims to the confines of religious discourse. Common to these varying strategies is a commitment to the principles of human rights.4 Faced with privatising religious–cultural claims, feminist movements in Pakistan have refused to remain within the constraints of the ‘local’, the particular, instead appealing to and invoking universalistic principles of human rights. These appeals to universal principles have led to the ‘othering’ of feminist discourse by those who seek to resist the transformative potential of human rights discourse. Attempts to reform discriminatory personal laws have been labeled as un-islamic, unfaithful to and out of touch with Pakistan’s inherited traditions. Lost within this web of competing traditions and beliefs is the recognition of women as moral agents and as bearers of rights. Lost also is a recognition of difference. Religious minorities, Islamic reformists and secularists have all been marginalised and excluded from a

March 2003. Elections to the Provincial Assemblies and National Assembly were held on 10 October 2002, and elections to the Senate were held on 24 February 2003. The legality of amendments made to the Constitution by the Legal Framework Order (issued by General Pervez Musharraf on 21 August 2002) is much disputed. The text of the Legal Framework Order (Chief Executive’s Order No 24 of 2002) is available at: Gazette of Pakistan, Extraordinary, August 2002. See generally: Human Rights Watch, World Report 2002, available at: http://www.hrw.org/wr2k2/asia9.html 4 See: SS Ali, Gender and Human Rights in Islam and International Law (The Hague, Kluwer, 2000); SS Ali, ‘Using Law for Women in Pakistan’ in A Stewart, (ed), Gender, Law and Justice (London, Blackstone, 2000) 139. SS Ali, ‘Development of the International Norm of Non-discrimination on the Basis of Sex: An Evaluation of Women’s Human Rights in Islam and International Law’ in A Stewart, (ed), Gender, Law and Social Justice (London, Blackstone, 2000) 45. SS Ali, ‘Law, Islam and the Women’s Movement in Pakistan’ in SM Rai, (ed), Gender and Democratisiation: International Perspectives (London, Routledge, 2000) 41; F Shahid, et al, (eds), Shaping Women’s Lives: Laws, Practices and Strategies in Pakistan (Lahore, Shirkit Gah, 1998); F Zafar, Finding our Way: Readings on Women in Pakistan (Lahore, ASR, 1991).

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state that claims to guarantee equality to all.5 Against this background, human rights discourse has offered, not a homogenising and totalising standard, but a framework within which difference can flourish and conflicting claims can be negotiated without compromising the pursuit of gender equality. The possibility of dialogue, of contestation and debate, the flourishing of difference, requires a shift in political discourse. Gender equality and a flourishing of difference cannot be supported by legitimizing appeals to a singular ‘ethnos’. A shift from ‘ethnos’ to ‘demos’ is required. This shift is at the heart of deliberative models of democracy. The beginnings of such a shift can be seen in Mohammed Ali Jinnah’s now infamous inaugural speech to Pakistan’s Constituent Assembly. In course of time, he said, ‘Hindus would cease to be Hindus and Muslims would cease to be Muslims, not in the religious sense [...] but in the political sense as citizens of the State.’6 As yet, this vision has not been realised. Religious–cultural claims continue to constrain the pursuit of gender equality, leading to a deeply gendered citizenship and a silencing of dissenting voices. A. THE ROLE OF ISLAM IN PAKISTAN’S CONSTITUTIONAL FRAMEWORK

Though many women participated in the independence movements,7 in post-partition Pakistan they were to find themselves the casualties of communal politics. The emergence of an independence movement brought with it a reassertion of religious–cultural claims. However, appeals to the unifying ideology of Islam did not always sit easily with the modernising agendas of Pakistan’s rulers, many of whom wished to retain, at least, the trappings of western liberal democracies. The tensions between these competing aspirations are evident within Pakistan’s constitutional framework.8 Although the fundamental rights chapter guaranteed equality to all, the pursuit of gender equality was frequently sacrificed to religious–cultural claims defining and limiting women’s status. As in other post-colonial

5 See J Rehman, ‘Minority Rights and the Constitutional Dilemmas of Pakistan’ (2001) 19(4) Netherlands Quarterly of Human Rights 417; F Ahmed, Ethnicity and Politics in Pakistan (Karachi, OUP, 1998); K Boyle and J Sheen, (eds), Freedom of Religion and Belief: A World Report (London, Routledge, 1997) 225. 6 Constituent Assembly Debates, vol 1, No 2, pp 19–20. For comment see G W Choudhury, above n 1, pp 45–46. 7 See: M Hasan, (ed), Inventing Boundaries: Gender, Politics, and the Partition of India (New Delhi, OUP, 2000); MS Hussain, Muslim Women’s Role in the Pakistan Movement (Lahore, University the Punjab, Research Society of Pakistan, 1969); R Visram, Women in India and Pakistan: The Struggle for Independence from British Rule (Cambridge, CUP, 1992). 8 I Ahmed, The Concept of an Islamic State in Pakistan: An Analysis of Ideological Controversies (Lahore, Vanguard Books, 1991); F Rahman, ‘Islam and the Constitutional Problem of Pakistan’ (1970) XXXII Studia Islamica 275; C Kennedy, above n 1.

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states,9 yielding to those claims served the interests of nation-building while at the same time guarding against any serious threat to the modernising agendas of the élite. This pattern was to continue throughout Pakistan’s constitutional history. In 1973, following the second partitioning of the state and yet another bloody civil war, Islam was declared the state religion.10 In 1985, following a military coup, General Zia ul-Haq appealed to Islam, initiating a programme of Islamisation that sought to restore the sanctity of the chador aur chardiwari (women veiled and within the confines of the home). Successive governments have failed to roll back General Zia’s legacy of Islamisation. Following the downfall of the Taleban in neighbouring Afghanistan and the subsequent rise of the religious right in Pakistan, the task of challenging religious–cultural claims becomes ever more daunting for the feminist movement. This task, however, is one that feminist movements in Pakistan have struggled with since the establishment of the state itself. Pakistan’s constitutional history has been fraught with tensions between the pursuit of gender equality on the one hand and the dictates of Islamisation on the other. Most of these conflicts have arisen within the field of personal law (broadly defined as the law governing family relations).11 Personal law has become a heavily contested site, identified as central both to women’s legal status and to religious beliefs and practices. Contestation within the sphere of personal law is not, of course, unique to Pakistan. As Ayelet Shachar notes: Traditionally, various religious (and national) communities have used marriage and divorce regulation in the same way that modern states have used citizenship law: to delineate clearly who is inside and who is outside of the collective. Family law fulfils this demarcating function by legally defining only certain kinds of marriage and sexual reproduction as legitimate, while labelling all others as illegitimate.12

In Pakistan, religion-based personal laws have long served this demarcating function. Religious traditions have added a certainty sanctity to the boundaries drawn around the private sphere. The regulation of women’s roles and conduct served to mark Pakistan as a separate national entity, reinforcing its claims to nationhood and to a political destiny distinct from that of its predominantly Hindu neighbour, 9 Much of Pakistan’s constitution is modelled on the Irish constitution, with a Fundamental rights chapter, with Directive Principles of State policy and religious references scattered throughout the constitutional text. See above, ch 6. See also: D Holmes and M Holmes, (eds), Ireland and India: Connections, Comparisons and Contrasts (Dublin, Folens, 1970). 10 Constitution of the Islamic Republic of Pakistan 1973, Art 2. 11 See: C Mallat and J Connors, Islamic Family Law (London, Graham & Trotman, 1990). 12 A Shachar, Multicultural Jurisdictions: Cultural Differences and Women’s Rights (Cambridge, CUP, 2001) 394.

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India. The conflation of gender roles with national identity was not, of course, a post-colonial phenomenon. The Warren Hastings Plan of 1772 in India provided that Hindus and Muslims in the Indian sub-continent were to be governed by their own laws in disputes relating to inheritance, marriage, caste and other religious usages and institutions.13 In 1781, succession and inheritance were added to this list. In all other matters, the courts acted, ‘according to justice, equity and good conscience’.14 The reception of secular and western laws into other spheres of the legal framework created a sharp dichotomy between systems of personal law and the general law applying irrespective of religion.15 For the colonial rulers, maintaining separate systems of personal law was administratively convenient. The division between public and private spheres underpinning the Hastings Plan was a familiar one. It reflected a ‘cult of domesticity’ that permeated much of the British legal system. It also reflected the peculiarly western liberal tradition that viewed the privatising of religion as essential to a modus vivendi between competing conceptions of the good life. Religious differences were tolerated by a state that claimed to be neutral between the private religious beliefs and practices of individual citizens. In the context of colonial rule, this division between the public and the private created difficulties for the state. The colonising state could not command a ‘sense of belonging’ amongst the colonised. This ‘sense of belonging’ developed instead within the confines of religious communities. As a result, political identities were increasingly forged along communal lines. For many of the leaders of the Pakistan movement, however, religious–cultural identities were not central to the process of nation-building. In his Presidential address to the All-India Muslim League in 1930, Mohammed Iqbal first put forward his proposal for the creation of a separate Muslim state.16 Although he rejected the duality of church and state as a peculiarly western concept, he distinguished between Islam, conceived as the legal basis of the state, and a theocracy. In his view, the creation of an autonomous Muslim state would not mean religious rule. This vision

13 Although the courts followed British models of adjudication and procedure, the plan had provided for Hindu and Muslim experts (Pandits and Maulvis respectively) to instruct the courts as to the nature of the Hindu or Muslim law, whenever a matter of Hindu or Muslim law come to be decided upon. The Pandits and the Maulvis were bound by the ‘laws of the Shastras’ in the former case and ‘the laws of the Koran’ in the latter case. In 1793 this Regulation was replaced by §15 of Regulation IV to read ‘Hindu laws’ and ‘Mohammedan laws’. See generally, M Anderson, ‘Islamic Law and the Colonial Encounter in British India’ in C Mallat and J Connors, Islamic Family Law (London, Graham & Trotman, 1990) 205. 14 §60 of the 1781 Regulation. See generally, D Pearl, A Textbook on Muslim Personal Law, 2nd edn, (London, Croom Helm, 1987) 26. 15 See, for example, The Indian Penal Code (1860); Code of Criminal Procedure (1861); Code of Civil Procedure (1859). 16 Extracted in I Singh, The Ardent Pilgrim: An Introduction to the Life and Works of Mohammed Iqbal (New York, NY, OUP, 1997).

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was taken up by Mohammad Ali Jinnah. Jinnah spoke of the ‘withering away’ of religion as a political concern. Religion, caste or creed, he said, had nothing to do with the business of the state. Ultimately, however, the accommodation of religious–cultural claims meant demarcating the public and the private. In the context of Pakistan, this demarcation was intended to allow for religious differences—differences in the interpretation of Islam and protection for the religious beliefs of non Muslims. Accommodating diversity also, however, meant allowing constraints on gender equality within the private, domestic sphere. It was a price that Pakistan’s leaders were willing to pay. Gender trouble could not be countenanced. Under successive constitutions, the private sphere of religious personal laws retained a protected status.17 This accommodation served to shield discriminatory laws and practices within the sphere of personal law from the tests of justice reserved for public political spheres. Thus while Article 25 of Pakistan’s Constitution guarantees equality before the law, religion-based personal laws continue to discriminate in matters relating to marriage, divorce, custody of children and inheritance. The ideology of separate spheres, a constant feature of colonial rule, was to continue post-independence, constraining gender equality within the private, domestic sphere. Although we see a demarcation between the public and private in matters of personal law, Pakistan’s constitutional framework did not follow a strict division between religion and the State. Zafrullah Khan, Pakistan’s first foreign minister argued that to exclude religion from the sphere of politics failed to grasp the full significance of religion and put too narrow a construction on the functions of religion.18 One of those functions was to support the process of nation-building. Islam served to distinguish Pakistan from its predominantly Hindu neighbour state, India. It also served to mask the ethnic, linguistic and socio-economic divisions in Pakistan’s diverse polity. The first significant step in the framing of a constitution for Pakistan was taken by the Constituent Assembly in March 1949, when it passed a resolution on the ‘Aims and Objects of the Constitution’—the Objectives Resolution. This resolution, which subsequently became the Preamble to Pakistan’s three successive Constitutions (1956, 1962 and 1973), provided that Muslims would be enabled to, ‘order their lives in the individual and collective spheres in accord with the teaching and requirements of Islam.’19 However, although the Objectives Resolution was referred to by the courts

17

See Art 198 and the note of explanation attached, Constitution of Pakistan, 1956. Constituent Assembly of Pakistan Debates, 1949, vol V, No5, cited in GW Choudhury, Constitutional Development in Pakistan, 2nd edn, (London, Lowe & Brydone, 1969) 40. 19 Constituent Assembly of Pakistan Debates, 1949, vol V, No5, cited in GW Choudhury, Constitutional Development in Pakistan, 2nd edn, vol V (London, Lowe & Brydone, 1969) 40, 100–1. The structure and phrasing of the Resolution has similarities to the Preamble of the Irish Constitution, Bunreacht na hÉireann. 18

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as the ‘corner-stone of Pakistan’s legal edifice’, embodying the ‘spirit and fundamental norms of the constitutional concept of Pakistan’,20 it was not accepted as a supra-constitutional document nor even as a justiciable provision. The 1956 Constitution declared Pakistan an Islamic Republic and set out the role of Islam within Pakistan’s constitutional framework. Article 198 of the Constitution provided that the legislature would bring all laws into conformity with the ‘Injunctions of Islam’ and prohibited the enactment of any law repugnant to Islam. The legislature, however, was to retain strict control over the pace and direction of this Islamisation process. The question of repugnance to Islam was to be determined solely by the National Assembly. No role was envisaged for the judiciary in this process. There was also recognition of the diversity within Islam, particularly within the field of personal law. A note of explanation inserted into the 1956 Constitution allowed for differences of interpretation of the Qur’an and Sunna as between different Muslim sects, thereby ensuring that the Islamisation process would respect differences between Muslims in the field of personal law.21 Constitutional provision was also made to exempt the personal laws of non-Muslims from any process of Islamisation, again recognising the diversity within the Pakistani polity. As we shall see, however, this concern to accommodate religious–cultural claims led to a deeply gendered citizenship, as Pakistani women’s legal identity was increasingly defined by their communities of origin. The 1962 Constitution initially excluded any reference to the need for legislation to conform to the Shari’ah or to an Islamisation process. However, following protests from the National Assembly, the Islamic provisions of the 1956 Constitution were reinserted.22 Despite this compromise, however, the role of Islam continued to be curtailed. This position was maintained by the 1973 Constitution. For the first time, however, Islam was declared to be the state religion. The privatisation of religious identities, carefully nurtured by the colonial rulers, was no longer tenable in a state scarred yet again by partition and in need of a unifying national ideology. A conservative nationalism was to provide the sense of belonging that had been absent in East Pakistan (Bangladesh).23 The appeal to Islam, however,

20

See Asma Jilani v The Government of the Punjab [1972] PLD SC 139. See note of explanation attached to Art 198 of the Constitution of Pakistan, 1956. See: 1st Amendment Act, 1963. The First Amendment reintroduced the word ‘Islamic’ into the title of the state. Pakistan again became the ‘Islamic Republic’. 23 See generally: GW Chaudhry, ‘Bangladesh: Why It Happened’ (1972) 48(1) International Affairs 242; R Jahan, Pakistan: Failure in National Integration (New York, NY, Columbia University Press, 1972). On the roots of conservative nationalism generally, see: D Miller, On Nationality (Oxford, Clarendon Press, 1995). For a discussion of conservative nationalism and its impact on minority rights, see: M Malik, ‘Minority Protection and Human Rights’ in T Campbell, KD Ewing and A Tomkins, (eds), Sceptical Essays on Human Rights (Oxford, OUP, 2001) 277. 21 22

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served only to highlight the tensions within Pakistan’s constitutional text. Reconciling the establishment of Islam as the state religion with the constitutional guarantees of equality and religious freedom was to continue to raise conflicting claims. The potential for conflict can be see in the sphere of Muslim personal law, contested throughout Pakistan’s constitutional history by reformists, revivalists and feminists alike. B. THE SEPARATE SPHERE OF MUSLIM PERSONAL LAW

The expression ‘Muslim Personal Law’ (MPL) may have a number of different meanings. In its commonly understood sense, it refers to the religious or Divine law of Muslims by which they believe themselves to be governed as a matter of faith.24 However, it is also used to refer to all statutory laws applying only to Muslims.25 The scope of MPL in this second sense is based on the terms of the Warren Hastings plan. The desire to develop a uniform system of law in India had seen the codification of criminal law, the law of contract and the law of evidence. Personal laws in the areas laid down by the Hastings plan, however, continued to be excluded from the general law. Because personal laws were intertwined with religious identities, any attempt at large-scale reform was viewed as a threat and likely to disrupt the colonial project. The colonial rulers were willing to sacrifice reforming measures that might bring about greater equality for women. This willingness reflects, yet again, the kind of ‘traffic in women’ that so frequently accompanies the accommodation of religious–cultural claims. Demarcating the sphere of personal law would also have reflected the kind of public/private divisions that were familiar to western legal systems, based, as they were, on a firmly entrenched ‘cult of domesticity’. Codification would also have proven difficult given the variations in customary practices between different Muslim communities. The Warren Hastings Plan allowing for the application of religious personal laws had proven difficult to implement because of the diversity within religious practices.26 As a result, towards the end of the 19th century, there was a shift from religious personal law to custom as the ‘rule of decision’ in disputes relating to personal law.27 In a dispute concerning the Khoja and Memon communities in Bombay, Chief Justice Perry concluded that if a custom had

24

See E Zafar, Constitutional Law of Pakistan, vol II (Karachi, Saeed Books, 1993) 1250. See Federation of Pakistan v Mst Farishta [1981] PLD SC 120. 26 See SS Ali, above n 4, pp 144–46. 27 §5 of the Punjab Laws Act 1872. See: The Bombay Regulation IV of 1827; The Punjab Laws Act IV of 1872; The Bengal, Agra and Assam Civil Courts Act VIII of 1887. The leading case concerning the applicability of customary practices is a decision involving the Khoja and Memon communities given in Bombay in 1847 (Perry, 1847) and discussed by D Pearl, above n 14, p 33. 25

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been proven to exist, ‘from the time whereof the memory of man runneth not to the contrary’,28 if it was not injurious to the public interest, and if it did not conflict with any express law of the ruling power, such a custom would be enforced by the court regardless of the general Muslim law to the contrary. The reference to the memory of man reflects the patriarchal nature of many customary practices, as women’s memories were either ignored or silenced. The limits imposed by the public interest did little to safeguard gender equality, as public interest was defined more by reference to the smooth running of the colonial enterprise rather than with the protection of women’s human rights. Enforcing custom as the rule of decision allowed for diversity within personal laws. The fragmentation inherent within this practice, however, did not suit the demands of a nationalist movement. The All-India Muslim League sought to codify Muslim personal law and, in doing so, hoped to unify Indian Muslims around a distinct religious–cultural identity. The administration of the Shari’ah by a non-Muslim colonial power and its balancing against local customs and usages had transformed personal law into a ground for organised political struggle. Codification, a trend initiated by the British, was now perceived by Muslim leaders as a necessary step in asserting and protecting a separate Muslim identity. The All India Muslim Women’s Conference also supported the calls for codification of personal laws, arguing that customary practices in many areas of the Indian sub-continent stood in ‘marked contrast to the fuller rights bestowed [...] by the Shari’ah.’29 The Muslim League’s demands for the codification of the Shari’ah culminated with the enactment of the 1937 Muslim Personal Law (Shari’ah) Application Act, extending the application of MPL to the whole of India. The Act provided that in all matters covered by the Act, MPL was to replace custom as the ‘rule of decision’. The struggle for the statutory enforcement of MPL continued after independence. A series of Shari’ah Acts were enacted by Pakistan’s provincial legislatures.30 In 1962 these Acts were amended and consolidated in one comprehensive piece of legislation, the West Pakistan Muslim Personal Law (Shari’ah) Application Act, 1962. Unlike the previous Shari’ah Acts, however, the 1962 Act was made subject to the provisions of any enactment in force at that time.31 This provision 28

Cited in D Pearl, above n 14, p 34. See: Statement of Objects and Reasons, Muslim Personal Law (Shari’ah) Application Act, 1937, Gazette of Pakistan 1937 Part V; M Anderson, ‘Islamic Law and the Colonial Encounter in British India’ in J Conners and C Millat, (eds), Islamic Family Law (London, Graham & Trotman, 1990) 136. 30 The 1937 Act was followed in 1948 by the West Punjab MPL (Shari’ah) Application Act and in 1950 by the MPL (Shari’ah) Application (Sind Amendment) Act. Both these Acts extended the scope of MPL to include testate succession and questions relating to agricultural land. 31 West Pakistan Muslim Personal Law (Shari’ah) Application Act, 1962, §2. 29

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ensured protection for the 1961 Muslim Family Laws Ordinance (MFLO), promulgated only one year previously and condemned by many as unislamic. The MFLO was introduced, following recommendations for reform by the Commission on Marriage and Family Laws, to ensure that women were given their ‘proper place in society according to the fundamentals of Islam.’32 For the Commission, working within the ‘fundamentals of Islam’ was not a problem. In its view, MPL was a ‘growing organism’, that had become a conservative and rigid force under colonial rule, failing to respond to ‘progressive forces’ and ‘changing needs’.33 The Commission’s report included many proposals and recommendations for reform, leading ultimately to the adoption of the 1961 MFLO. A strong note of dissent, however, was entered to the Commission’s final report by Maulana Ihtehshamul Haq, signalling the beginning of a controversy that was to plague reforming forces for many years to come.34 Ultimately, the concern to placate dissenting voices greatly weakened the impact of the 1961 MFLO as a reforming measure.35 The Ordinance imposed procedural restrictions on polygamy and the power of talaq, leaving untouched the discrimination inherent within both practices.36 Despite these shortcomings, however, the Ordinance was welcomed and jealously guarded by women’s rights activists. From the outset, it was labeled as ‘unIslamic’. A resolution proposed in the National Assembly condemned the Ordinance as contrary to Islam.37 Although the resolution was not carried, the label remained. Several petitions were brought before the courts challenging the Ordinance as being repugnant to Islam. In both the 1962 and the 1973 Constitutions, however, the Ordinance was granted a protected status, excluding it from any constitutional challenge invoking fundamental

32 Report of the Commission on Marriage and Family Laws, Gazette of Pakistan, Extraordinary, 20 June 1956, (Majority report) 1197. 33 Ibid, p 1203. 34 Gazette of Pakistan Extraordinary, 30 August 1956 (note of dissent) 1604. 35 See generally: JL Esposito, ‘Muslim Family Law Reform in Pakistan’ (1977) 4(2) Journal of Malaysian and Comparative Law 293; D Pearl, ‘Family Law in Pakistan’ [1969] Journal of Family Law 165. 36 Under the Ordinance polygamy is prohibited unless the prior permission of an Arbitration Council has been received (§6). The Council may grant permission if it is satisfied that the proposed marriage is ‘necessary and just’ (§6(3)). Where the existing wife or wives have granted permission for the marriage, the Council will usually permit the marriage to go ahead. Some restrictions were also placed on what were perceived as being too facile pronouncements of divorce by the husband using his power of talaq. The Ordinance requires that notice of the pronouncement of talaq must be provided in writing to the Arbitration Council (a.77). The pronouncement of talaq does not become effective until the expiration of 90 days from the day on which notice is delivered. However, although a failure to comply with the notification requirements under the Ordinance may render a husband liable to payment of a fine or a term of imprisonment extending up to one year, it does not affect the validity of the divorce. The restrictions, therefore, are procedural only and the substantive issue, namely, the dissolution of the marriage is not affected. 37See, National Assembly Debates, 20 March 1964.

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rights.38 In Shaukat Hussain v Rubina,39 Justice Tanzil-ur-Rehman of the Karachi High Court argued that Article 227 of the Constitution, requiring all laws to be brought into conformity with Islam, had been flouted by the protection given to the Ordinance. The protected status given to the Ordinance amounted, he argued, to a suspension of fundamental rights, in particular, the right to religious freedom. The protected status of the Ordinance guarded against challenges claiming a denial of religious freedom. A fragile compromise was thus achieved. It was a compromise, however, that was to remain constantly under threat. Under General Zia’s Islamisation programme, Justice Tanzil-ur-Rehman’s words were to find support, as Islamisation brought with it an increasingly homogenised Islam and further constraints on women’s claims to equal citizenship. C. ISLAMISATION: ‘CHADOR AUR CHARDIWARI’

The Islamisation of Pakistan’s legal system received a new impetus under General Zia ul-Haq. On the assumption of the office of Chief Martial Law Administrator in July 1977, Zia ul-Haq suspended the fundamental rights chapter of the 1973 Constitution, ordered that the Constitution be to be held in abeyance and proclaimed Islamisation as his prime objective. The regulation and definition of women’s legal status was quickly identified as central to the achievement of this objective. Legal measures to control female sexuality and preserve women’s modesty ensured a rallying of support from the forces of conservative nationalism. Recognising the instrumental value of such support, Zia embarked on a programme of Islamising Pakistan’s inherited criminal codes. The MFLO’s modest reforms were also to come under threat as Zia promised to restore the sanctity of the chador aur chardiwari. Viewed in the light of subsequent developments in Afghanistan, Zia’s programme of Islamisation was a modest one. For women, however, it was to mark a shift towards a conservative nationalism that would limit the potential of rights-based discourse in Pakistan for many years to come. One of the first steps taken by General Zia was the adoption of the Hudood Ordinances. The Ordinances were adopted with the stated objective of ‘Islamising’ Pakistan’s criminal justice system.40 Under the 38 Art 6(3)(ii) and Schedule III of the 1962 Constitution; Art 8(3)(b) and Schedule I, Part II of the 1973 Constitution. 39 Shaukat Hussain v Rubina [1989] PLD Karachi 513. 40 Enforcement of Hadd (Prohibition) Order (IV of 1979); Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979); Offence of Qazf (Enforcement of Hadd) Ordinance (VIII of 1979); The Execution of the Punishment of Whipping Ordinance (IX of 1979); The Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979). See generally: A Jahangir and H Jilani, The Hudood Ordinances: A Divine Sanction? (Lahore, Rhotas Books, 1990). Hudood is an arabic word referring to the Limits and Punishments defined by Allah.

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Ordinances, a woman’s testimony cannot be taken into account if a court wishes to impose a strict hadd punishment.41 This silencing of women’s voices assumes particular significance under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. Zina is defined as wilful sexual intercourse between a man and woman who are not validly married to each other.42 The criminalisation of zina has greatly complicated prosecutions for zina-bil-jabr (rape)—also governed by the 1979 Zina Ordinance.43 Complainants of rape now face yet another hurdle. If a court finds that the complainant consented to sexual intercourse, the charge may be changed from one of rape—zina-bil-jabr, to one of zina, and the complainant herself becomes the accused. If the woman is unable to prove her allegation of rape, her complaint may be treated as a confession to the offence of zina. Pregnancy is taken as further evidence that zina has been committed.44 In a number of rape trials, the woman complaining of rape has been convicted of zina because she could not prove that her ‘unexplained’ pregnancy was the consequence of rape.45 The Zina Ordinance clearly conflicts with Pakistan’s constitutional guarantee of equality.46 The role of the equality norm within Pakistan’s Constitution, however, is a contested one. Given the constitutional requirement that all laws should be brought into conformity with Islam, it is unlikely that the Hudood Ordinances would be struck down as discriminatory and contrary to the guarantee of equality. Zia ul-Haq, nonetheless, 41 A hadd punishment is one ‘the measure of which has been definitely fixed in the Qur’an or Sunnah’. Tazir is a punishment other than hadd and under general Islamic jurisprudence, the Court is allowed discretion both as to the form in which such punishment is to be inflicted and its measure. The Hudood Ordinances, however, depart from general Islamic jurisprudence in this respect and make provision for both the form and measure of the punishment. 42 Offence of Zina (Enforcement of Hudood) Ordinance, 1979, §4. 43 To attract the punishment of hadd for zina-bil-jabr (rape), the evidence submitted may only be in one of two forms, either: (a) the accused confesses to the commission of the offence or (b) at least four Muslim adult male witnesses give evidence as eye-witnesses to the actual act of penetration. The court must be satisfied that they are truthful persons and abstain from major sins (kabair). The woman making the complaint is excluded from giving evidence. Expert opinion, medical evidence and documentary proof is also excluded. If the required standard of proof for hadd is not met, the accused my still liable to tazir. Under tazir the standard of proof is entirely a matter of discretion for the judge. Most rape trials are tried under tazir, given the almost impossible standard of proof for hadd punishments. 44 See, generally: A Jahangir and H Jilani, above n 40. See also, Human Rights Watch, World Report: Pakistan, 2001. Available at http://www.hrw.org/wr2k1/asia/pakistan.html, as viewed on 2 July 2002. 45 See, for example, Safia Bibi [1985] NLR SD 145 and Shabbir Ahmed [1983] PLD FSC 110. 46 The ‘Islamisation’ of the laws of evidence led in 1984 to the Qanun-e-Shahadat Order, Art 17(1) of which provides that in matters relating to financial or future obligations, legal instruments must be attested by two men or one man and two women. Critics argue that the Order is based on a mistaken interpretation of the Quranic verse II: 282. There is also a jurisprudential debate as to whether this particular Qur’anic verse has been superseded by later revelations concerning women’s legal competence in evidentiary matters. See generally: SS Ali, above n 4, pp 70–72.

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took steps to deny the possibility of such a challenge. The Eighth amendment to the Constitution, inserted on the revival of the 1973 Constitution, protected the Ordinances from challenge ‘in any court on any ground whatsoever,’47 thus ensuring that Zia’s legacy would survive long after his demise. Under General Zia’s Islamisation programme, the pluralism inherent within Pakistan’s system of religious personal laws was also to come under attack. In line with Article 227 of the Constitution, personal laws were initially shielded from the Islamisation process and placed outside the jurisdiction of the newly established Shari’ah courts.48 This ensured protection for differing interpretations of the Shari’ah and for the personal laws of religious minorities.49 Indirectly, it also ensured protection for the 1961 MFLO, shielding the Ordinance from the consequences of being labelled ‘un-Islamic.’ This protection, however, was to come under threat as General Zia’s Islamisation programme extended to constitutional reform. On the revival of the 1973 Constitution in 1985, a new provision, Article 2–A, was added to the Constitution, providing that the Objectives Resolution would be elevated from a preambular to a substantive provision.50 The precise import of this new provision was unclear. Those adhering to a conservative nationalist line were quick to argue that the Objectives Resolution had acquired a supra-constitutional status. Constitutional provisions, fundamental rights guarantees and MPL were all to come under threat, as conservative nationalists invoked the Resolution to support an extended programme of Islamisation. In Mirza Qamar Raza v Tahira Begum and others,51 Justice Tanzil-ur-Rehman in the Karachi High Court, held that Article 2–A gave the Supreme Court and the High Courts power to review any aspect of MPL to determine its compatibility with the requirements of Islam. The MFLO, although protected from challenge under the fundamental rights chapter, was, according to Justice Tanzil-ur-Rehman, open to challenge under Article 2–A. He went on to strike down several provisions of the Ordinance as being repugnant to Islam. A more cautious Supreme Court, however, rejected this supraconstitutionality doctrine, pointing out that the establishment of the 47

8th Amendment Act (XVIII of 1985), §19(2). One of the first steps taken by Zia ul-Haq, was the establishment of Shari’ah courts. The Constitution (Amendment) Order, 1979 established Shari’at Benches in each of Pakistan’s High Courts and a Shari’at Appellate Bench in the Supreme Court with exclusive jurisdiction to hear petitions challenging ‘any law or provision of law’ as being repugnant to the ‘Injunctions of Islam’. PO No 3 of 1979. Under the Constitutional (Amendment) Order, 1980, the Shari’at Benches of the High Courts were replaced by a single Federal Shari’at Court (FSC). PO No 1 of 1980. In 1982 the FSC was granted an additional suo moto power to examine any law with a view to determining its compatibility with Islam. Constitution (Second Amendment) Order, 1982 (PO No 5 of 1982), §4. These additional judicial powers were to place the judiciary at the heart of the Islamisation process. 49 See Dr Mahmood-ur-Rahman Faisal v Govt of Pakistan [1994] SC 607. 50 Revival of the Constitution of 1973 Order, 1985 (PO No 14 of 1985). 51 Mirza Qamar Raza v Tahira Begum [1988] PLD Karachi 169. 48

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Shari’ah courts had already created an effective, albeit, limited mechanism for the Islamisation of the legal system.52 In Hakim Khan and others v Govt of Pakistan, the Supreme Court again urged judicial restraint, warning against, ‘the euphoria for instant Islamisation of Constitution, Government and Society’.53 More recently in Muhammad Ishaque v Manzooran Bibi,54 the Supreme Court again affirmed the protected status of the MFLO and in Abdul Waheed v Asma Jehangir reconfirmed the limits placed on the jurisdiction of the Shari’ah courts in matters relating to MPL.55 The limits placed on the jurisdiction of the Shari’ah Courts placed some constraints on the pace and scope of Islamisation. Attempts by General Zia to extend the jurisdiction of the Shari’ah Courts ultimately failed to survive his unexpected death in 1989. In 1991, Nawaz Sharif’s Government introduced the Shari’ah Act, claiming to continue Zia’s legacy of islamisation. The Act, however, simply reaffirmed the supremacy of the Shari’ah in Pakistan’s legal system. It left intact the restrictions on the Shari’ah Courts and also provided that women’s constitutional rights would not be affected in any way. The precise import of this legislative guarantee was, and remains, unclear. Given the uncertainty surrounding the role of Islam within Pakistan’s constitutional framework, the protected status of MPL and the ideology of separate spheres permeating the legal system, the potential for conflict between feminism and religious–cultural claims remains a constant threat, despite legislative reassurances to the contrary. In 1998, this threat raised its head again when Prime Minister Nawaz Sharif attempted to bring forward yet another Shari’ah Act, proposing a constitutional amendment and a revival of General Zia’s Islamisation programme.56 The proposal was viewed by many as an opportunistic attempt to distract attention from Nawaz Sharif’s dwindling political fortunes. The Fifteenth Amendment Bill received the approval of the lower house in Parliament but failed to secure the necessary two-thirds majority in Senate. Sharif’s support for the Taleban regime in neighbouring Afghanistan and his suggestion that Pakistan should follow the Islamic Emirate’s example of swift justice, had provoked widespread concern amongst human rights activists.57 Ultimately, however, 52

Mst Kaneez Fatima v Wali Muhammad [1993] PLD SC 901. Hakim Khan v Govt of Pakistan [1992] PLD SC 595, 630. 54 Muhammad Ishaque v Manzooran Bibi [2003] PLD Supreme Court 128, per Karamat Nazir Bhandari, J. 55 Abdul Waheed v Asma Jehangir [2004] PLD Supreme Court 219. Muslim Personal Law cannot be examined by the Federal Shariat Court and Muslim Personal Law in Art 203B of the Constitution means (i) statutory law of Muslims; and (ii) it is personal law of a particular sect. If these two conditions are not present, the matter can be examined by the Federal Shariat Court, per Karamat Nazir Bhandari, J, 234. 56 15th Amendment to the Constitution Bill, 1998. 57 See, for example, The joint written statement submitted to the 55th session of the UN Commission on Human Rights by Franciscans International, the Commission of the Churches on International Affairs of the World Council of Churches and the World Alliance of Reformed Churches, UN Doc E/CN4/1999/NGO/31, 29 January 1999. 53

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his political posturing failed and a military coup in October 1999 brought General Musharraf to power. Pakistan’s brief flirtation with democracy had failed yet again. D. NEGOTIATING CONFLICTING CLAIMS: THE ROLE OF HUMAN RIGHTS DISCOURSE

A commitment to equality between women and men is enshrined as a core principle—a constitutional essential, to borrow Rawls’s term—in Pakistan’s much amended constitutional text. All too often, however, this constitutional essential has lost out to the claims of culture. For feminist movements in Pakistan, the negotiation of conflicting cultural claims has required the support of universalistic principles, principles that affirm the legitimacy of women’s claims to equal citizenship. Of course, the assertion of universalistic principles is not enough, in itself, to secure reforms for women. Legal regulation is necessary but will not secure widespread acceptance of the necessity for reform or provide for the necessary dialogue, contestation and debate that processes of reform require. A dual-track approach recognises the need for an expanded moral–political dialogue on constitutional essentials, on the meaning and scope of human rights principles, the requirements of Islam and other inherited religious–cultural traditions. The beginnings of such a dialogue can be seen in a number of recent decisions of the superior courts in Pakistan. Against a background of military rule and increasing talebanisation of particular sectors of Pakistani society, human rights advocates have struggled to negotiate conflicting religious–cultural claims and to challenge the discriminatory claims of family, community and tradition. Conflicts between religious–cultural claims and the pursuit of gender equality have been played out in a number of recent cases in Pakistan. At stake in these conflicts are the core principles of egalitarian reciprocity, voluntary self-ascription and freedom of exit and association. Many conflicts arising have centred on women’s freedom to choose a spouse, to marry and to found a family. Women’s claims to individual autonomy and to equal treatment in marriage and family relations have always threatened patriarchal traditions. Pakistan is no exception. The Zina Ordinance has further criminalised the expression of women’s sexuality, creating added difficulties for women seeking to exit from the ties of family and community. The competing traditions defining the scope and limits of women’s rights in Pakistan can be seen in the Saima Waheed case.58 Saima Waheed was from an educated middle-class background. An undergraduate student at the Government College, Lahore, she entered into a marriage with one of her college lecturers without the consent of her parents. Her parents 58

Abdul Waheed v Asma Jehangir [1997] PLD Lah 301.

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disapproved of the marriage and she fled to a woman’s refuge to escape their hostility. Her father immediately filed criminal charges against the refuge alleging that his daughter had been abducted and also arguing that Saima’s marriage was void ab inito because it lacked his (the wali’s) consent. Saima, in turn, petitioned the court seeking a declaration upholding the validity of her marriage. The case attracted considerable media attention, both nationally and internationally. Ultimately, the case turned on the necessity of the wali’s consent and the recognition of an adult Muslim woman’s independent legal personhood. Statutory law inherited from the colonial era pointed to Saima’s capacity to contract a valid marriage without the consent of her wali. The Court, however, choose to resolve the dispute by appealing to the Shari’ah and, in doing so, highlighted the many competing interpretations of Islam available in the context of any jurisprudential debate. The majority judgment, while lamenting the influence of western liberal individualism in Pakistani society, concluded that the Shari’ah recognised women’s full legal capacity and, in doing so, extended far beyond the limits of the inherited common law.59 The dissenting judgment entered by Justice Ihsan ul-Haq Chaudhary appealed to a protective Shari’ah, one that allowed Muslim women a limited legal capacity only. Rejecting the contention that the Shari’ah allowed a Muslim male or female to marry without the consent of a guardian, he invoked his role as a ‘national judge’ and ‘custodian of the morals of Pakistan’s citizens.’60 Chaudhary J’s appeal to the ‘national’ reveals a search for an ‘authentic’ or ‘organic’ Islam. It also reveals a reluctance to admit to the priority of human rights principles, particularly where those principles threaten to destabilise established hierarchies and inherited traditions. Ultimately in this case, a more egalitarian Islam won out. The choice between competing cultural claims was guided finally by the priority of individual autonomy. The Court emphasised the importance of cultural membership, solidarity and communal values. They also emphasised the need to protect Pakistan’s cultural traditions against an encroaching western, liberal individualism. However, the Court’s majority judgment ensured that the ties of family and community could not deny Saima Waheed’s exercise of individual autonomy in her choice of spouse. The Supreme Court confirmed the majority judgment, citing a well established body of case both from the Shariat courts and the High Courts to support the conclusion that a sui juris Muslim female could enter into valid ‘Nikah’/marriage of her own free will.61

59 SS Ali, ‘Is an Adult Muslim Woman Sui Juris? Some Reflections on the Concept of “Consent in Marriage” without a Wali (with Particular Reference to the Saima Waheed Case)’ (1996) 3 YIMEL 150, 156. 60 Above n 58, per Ihsan ul-Haq Chaudhary J. 61 Abdul Waheed v Asma Jehangir [2004] PLD Supreme Court 219, 237.

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A woman’s freedom to marry and choose a spouse was again at issue before the Lahore High Court in Humaira Mehmood v State.62 This time, Humaira Mehmood’s marriage against the wishes of her parents, led to proceedings being initiated against her under the Zina Ordinance. Quashing the criminal proceedings, the Lahore High Court concluded that a sui juris woman’s entitlement to contract a marriage of her own free will was a settled proposition in Islam. The Court also concluded that a marriage ceremony (Nikah) performed under coercion had no legal validity.63 In support of its findings the High Court cited the constitutional guarantee of equality, the State’s duty to protect the institution of marriage and the family, and the requirements of international human rights law. In particular, the Court cited Article 16 of CEDAW, and the 1990 Cairo Declaration on Human Rights in Islam, declaring women’s equal right to human dignity. Humaira Mehmood had sought a release from the ‘high walls of a feudal bondage’.64 She had sought to exercise her right of freedom of exit and association. The Court recognised this right, choosing an egalitarian Islam over the claims of Humaira’s family. In Muhammad Siddique v State,65 the Lahore High Court was faced with a triple murder, committed by Muhammad Siddique in defence of his family’s ‘honour’. Muhammad Siddique’s daughter had married against the wishes of her father. Muhammad Siddique registered a case against his daughter and her husband under the Hudood Ordinances, claiming that their marriage, which was contracted without his consent, was invalid. On the pretence of coming to a compromise on these proceedings, he sought a meeting with his estranged daughter, her husband and their six month old baby daughter. Having secured the meeting, he shot all three. The High Court rejected his defence of ‘grave and sudden provocation’ and his appeal to the necessity of defending his family’s honour. There was, the Court said, nothing religious about his crime and nothing honourable either. It was ‘male chauvinism and gender bias at their worst.’ A woman’s right to marry was recognised, the Court pointed out, not only by Islam but also by the Constitution of Pakistan. Honour crimes, they said, stemmed from prejudices that were not country specific, region specific or people specific. Rejecting Muhammad Siddique’s appeals to the sanctity of family honour, the Court adopted an uncompromising universalist stance. No tradition, they said, was sacred, no convention indispensable, if it did not stand the test of, ‘the fundamentals of a civil society generally expressed through law and the Constitution.’66 Legal regulation played a role in defining the

62 63 64 65 66

Humaira Mehmood v State [1999] PLD Lahore 494. Ibid, p 501. Ibid. Muhammad Siddique v State [2001] PLD 449. Ibid, p 457.

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limits of reasonable pluralism, as did an expanded dialogue on an adult Muslim woman’s right to freedom of exit and association. In Samia v the State,67 the Lahore High Court again drew on CEDAW, specifically Article 16, in applying the Interpretation of the Christian Marriages Act (XV of 1872) to safeguard the validity of the marriage in question and the choices made by the contracting partners. These cases are important, not only in a local context for feminist movements in Pakistan, but also for the project of global feminism. They highlight both the possibility of a cultural mediation of human rights norms and the need for feminism to retain a guiding commitment to the core moral principles of universal respect and egalitarian reciprocity. Feminism in Pakistan has recognised the importance of these universal principles and the transformative potential of human rights discourse. The forces of conservative nationalism have continued, however, to deny this potential. Although General Zia’s Islamisation programme has not been repeated, his legacy of discrimination and political Islam continues to constrain the pursuit of gender equality. To counter the claims of conservative nationalists, feminism in Pakistan has moved beyond the boundaries of domestic laws and traditions, appealing to international human rights law and the normative framework provided, in particular, by CEDAW. The coming to power of the Taleban in Afghanistan coincided with Pakistan’s ratification of CEDAW. The rise of the Taleban in Afghanistan represented a victory for a conservative nationalist Islam. Given political alliances at the time, it was a victory that could easily have spilled over into Pakistan’s legal system. Feminist movements in Pakistan were justifiably concerned, therefore, that Pakistan’s ratification of the Convention should not be accompanied by an ‘opt-out’ clause. The reservation entered by Pakistan to the 1989 UN Convention on the Rights of the Child (CRC), appealing to ‘Islamic laws and values’, added further fuel to this anxiety.68 In 1985, Pakistan’s Commission on the Status of Women had recommended ratification of CEDAW without reservation.69 The Report’s criticism of the status of women in Pakistan, however, had caused some disquiet. As a result, publication of the Commission’s Report was withheld. Debate on ratification, nonetheless, continued in other Government Departments. In 1987, the Cabinet Secretariat (Women’s Division) recommended ratification of the Convention subject to a reservation which clearly stated that Pakistan would accept only those provisions of the Convention that were 67

Samia v the State [2003] PLD Lahore 747. The full text of the reservation read: ‘Provisions of the Convention shall be interpreted in the light of the principles of Islamic laws and values.’ This reservation was subsequently withdrawn on 23 July 1997. See: United Nations Treaty Collection: Declarations and Reservations, available at: http://www.unhchr.ch/html/menu3/b/treaty15_asp.htm. See further below n 77. 69 Government of Pakistan, Report of the Pakistan Commission on the Status of Women (Islamabad, Government of Pakistan, 1986). 68

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compatible with the Qur’an.70 The Government of Pakistan was to be ‘the sole judge of ... whether such repugnancy exists’.71 The Ministry of Foreign Affairs responded that such a reservation would be incompatible with the object and purpose of the Convention. However, it agreed that the substantive provisions of the Convention were, ‘not entirely consistent with the Constitution of Pakistan, the tenets of Islam, nor in keeping with the current programme of Islamisation of laws.’72 In its view, the Convention had been used to criticise, not only the position of women in Islamic states, but also ‘the very fundamentals of the Islamic faith.’73 Ignoring egalitarian traditions within Islam and Pakistan’s own fundamental rights jurisprudence, the Ministry dismissed the Convention as an instrument of western women’s rights activists that failed to take account of diverse customs, religious and ethical perspectives. The issue of ratification came to the fore again in 1994, this time as part of the preparations for the Fourth World Conference on Women to be held in Beijing. The Minister for Women’s Development complained that Pakistan’s non-ratification was creating ‘international embarrassment.’74 The Ministry for Religious Affairs recommended ratification subject to a general reservation that the Convention would be accepted only to the extent of its compatibility with the Constitution and ‘the religious beliefs of the majority population of Pakistan’—the majority population being Sunni Muslims.75 In addition, the Ministry suggested that reservations should be entered to specific provisions of the Convention, including, Articles 2 and 16. Those lobbying in favour of an unequivocal ratification, including the Ministry for Women’s Development, argued that the Convention’s standards were in keeping with Islam and that no such reservations were necessary. The Government suggested ratification subject to a reservation ‘opting out’ of Article 2(f) of the Convention, requiring States parties to modify or abolish law, regulations, customs and practices, which constitute discrimination against women.76 The Ministry for Women’s Development and NGOs lobbying in favour of ratification objected to these proposals, arguing that Islam, properly understood, was compatible with the Convention. It was a strategy that had met with some success in relation to children’s

70 Government of Pakistan, Ministry for Foreign Affairs, The UN Convention on the Elimination of all Forms of Discrimination Against Women: Working Paper (Islamabad, Government of Pakistan, 1994) 2. 71 Ibid, cited in SS Ali, above n 4, pp 268–69. 72 Ibid. 73 Ibid. 74 Ibid, p 3. 75 See SS Ali, A Comparative Study of the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (Peshawar, Shaheen Press, 1995) 126. 76 Above n 70, p 3.

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rights and the CRC. Pakistan’s reservation to the CRC, invoking the principles of Islamic laws and values, was withdrawn, following recognition by the Government that ‘practically no provision of the Convention comes into direct conflict with any of the major precepts of Islam’.77 Ultimately, a compromise was arrived at. Pakistan ratified CEDAW on the 12 March 1996, subject to a general declaration invoking ‘the Constitution of the Islamic Republic of Pakistan.’78 This general declaration raises a number of questions, not least of which concerns the precise role of the Shari’ah within Pakistan’s constitutional framework. As we have seen, the constitutional guarantee of equality has frequently lost out to the dictates of political expediency and religious–cultural claims. Subjecting CEDAW to the requirements of constitutional law, already problematic from the point of view of treaty law, leaves the pursuit of gender equality vulnerable to religious–cultural claims and the political agendas of conservative nationalists. The continued application of the Hudood laws and the failure to seriously challenge community sanctioned violence against women reflects this ongoing vulnerability. In discussions on the 1948 Universal Declaration of Human Rights. Begum Ikramullah argued in favour of ‘a code of civilised behaviour’, that would apply not only in international relations but also in domestic affairs.79 Religious–cultural claims have continued, however, to resist the application of human rights principles to domestic affairs.80 This resistance has led to state sanctioned discrimination, given legal effect in the Hudood Ordinances, and to the extremes of honour crimes against women. Human rights activists, both at local and international levels, have called for repeal of the Hudood Ordinances.81 Despite promises of reform, however, the 77 See: Pakistan’s Initial Report under the CRC, UN Doc CRC/C/3/Add.13, para 3.1 of the Report. See also para 37. In its Reply to the issues raised by the Committee on the Rights of the Child, Pakistan stated that its reservation to the Convention was under review. Written answers from the Government of Pakistan to the List of Issues (CRC/C5.WP1) forwarded by the Committee in connection with the Initial Report of Pakistan (CRC/C/3/Add.13). Reply to List of Issues: Pakistan. 24/01/94, para 1. In its Concluding Observations, the Committee stated that the ‘broad and imprecise nature of the reservation’ raised ‘deep concern’ as to its compatibility with the object and purpose of the Convention. (UN Doc. CRC/C/15/Add.18. para9). 78 See United Nations Treaty Collection. Declarations and Reservations, available at: http: //www.unhchr.ch/html/menu3/b/treaty9_asp.htm>. A reservation was entered to Art 29 of the Convention (providing for the referral of disputes to arbitration or, failing that, to the International Court of Justice). 79 UN Doc GAOR, 3rd Session, Part 1, 3rd Committee, 90th meeting, 1 October 1948, 37, 120. 80 See generally, D Little, J Kelsay and AA Sachedina, Human Rights and the Conflict of Cultures: Western and Islamic Perspectives on Religious Liberty (Columbia, University of South Carolina Press, 1988) 33–52, discussing Saudia Arabia and Pakistan’s responses to the Universal Declaration of Human Rights, adopted 10 December 1948, GA Res 217A (III), UN Doc A/810 (1948) 71. 81 See, for example, Human Rights Commission of Pakistan, State of Human Rights in Pakistan, 2001 (Lahore, HRCP, 2002).

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Ordinances remain. Concern has repeatedly been expressed at the ‘very high level of violence’ against women and girls in Pakistan and the increasing number of so-called ‘honour crimes.’82 In 1997, a Commission of Inquiry for Women identified customary practices and cultural traditions as amongst the ‘most lethal forces’ impacting on women’s dignity and security in Pakistan.83 The Commission made a series of recommendations for legal reform and concluded by urging decision-makers to prioritise the issue of women’s rights, ‘not as a favour or protective gesture but as a fundamental inalienable right’.84 Little has been done, however, to implement the Commission’s recommendations. One of the most widely publicised honour crimes in recent years, was the killing of Samia Sarwar in her lawyer’s office on the 6 April 1999. The women’s refuge where Saima had sought protection was run by two of Pakistan’s leading feminist lawyers, Asma Jehangir and Hina Jilani.85 Samia was seeking a divorce from her abusive husband. Her family, angry at the dishonour brought to them by their daughter, arranged for her to be murdered. The Peshawar Chamber of Commerce, chaired by Saima’s father, and local ulema in Peshawar (Islamic scholars), publicly stated that Saima’s murder was carried out in accordance with local religious and tribal traditions.86 In August 1999, just three months after the murder took place, Pakistan’s Upper House, the Senate, refused to pass a resolution condemning the killing of women in the name of family honour.87 In Pakistan, as elsewhere, a gendered division between public and private spheres has served to shield and protect abusive, violent practices. As Amnesty International has argued, until Pakistan’s government takes seriously its obligation under Article 5 of CEDAW, to ‘modify the social and cultural

82 Asian Legal Resource Centre: Integration of the Human Rights of Women and the Gender Perspective: Violence Against Women. Written statement submitted to the UN Commission on Human Rights, 58th session, 31 January 2002, UN Doc E/CN4/2002/NGO/81. 83 Report of the Commission of Inquiry for Women (Government of Pakistan, 1997). See also: Human Rights Watch, Crime or Custom: Violence Against Women in Pakistan (New York, NY, Human Rights Watch, 1999). 84 Ibid. 85 Asma Jehangir and Hina Jilani established AGHS, the largest free legal aid centre in Pakistan which provides safe shelter for women fleeing violence. In 1998, Asma Jehangir was appointed UN Special Rapporteur on Extra Judicial Executions. In August 2000, Hina Jilani was appointed the Special Representative of the Secretary-General on the situation of Human Rights Defenders. 86 See: Amnesty International USA, Women’s Action Network, April 1999—Action on Pakistan. Available at: http://www.amnesty-usa.org/ainews/pakistan/pakistan05061999.html, as viewed on 5 July 2002. 87 See: Report of the Special Rapporteur on Extra-judicial, Arbitrary and Summary Executions, Ms Asma Jahangir, submitted to the 56th session of the Commission on Human Rights, UN Doc E/CN4/2000/3, 25 January 2000, para 81. See also: ‘Pakistan Fails to Condemn “Honour” Killings’ 3 August 1999, available at http://www.bbc.co.uk. See also: SIGI (Sisterhood is Global Institute), Urgent Action Alert, 31 August, 1999, available at: http://www.sigi.org/Alert/pak0899.htm, as viewed on 5 July 2002.

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patterns of conduct of men and women’, women in Pakistan will ‘continue to pay the price of their families’ honor with their freedom and their lives.’88 The recent rape case of Mukhtar Mai highlights, yet again, the difficulties in securing legal remedies for gender-based violence in Pakistan, as elsewhere, and the continuing trade on women’s ‘honour’, sanctioned by communal claims. On the 22 June 2002, Mukhtar Mai was raped by a gang of 14 men, allegedly on the orders of a village council (Panchayat), in revenge for an earlier police complaint submitted by Mukhtar Mai’s family’s following a sexual assault on her 12 year old brother. The case has attracted widespread international attention but has fallen victim to a series of jurisdictional conflicts within Pakistan’s legal system.89 The case is now pending before Pakistan’s Supreme Court. Mukhtar Mai has succeeded in overcoming her initial positioning by the international media as a ‘victim subject’,90 becoming an activist and campaigner for women’s rights, claiming agency against discriminatory laws, patriarchal traditions and ‘protectionist’ movements that seek to limit her freedom of movement and her political voice.91 The claims of an exceptional woman, however, will not be sufficient to challenge the layers of gender subordination that allow for an ongoing trade in women’s ‘honour’ in Pakistan. Mukhtar Mai’s case has captured the attention of the international media. Few women, however, succeed in claiming public agency or in achieving legal remedies for the rights violations that occur on a daily basis sanctioned by families, communities and traditions.92 E. CONCLUDING REMARKS

Difference feminisms that abandon the universalist path leave feminism vulnerable to the web of competing religious–cultural claims that we have seen in Pakistan. A deliberative democratic multicultural politics does not confine women and children to their communities of origin against their will, but encourages women to develop their autonomous agency vis-à-vis their ascribed communities.93 This requires the support of the key principles laid 88 See Art 5 of CEDAW and Amnesty International USA Pakistan: Violence against Women in the Name of Honour, New York, NY, Amnesty International USA, 1999, available at: http://www.amnestyusa.org/countries/pakistan/reports/honour/overview.html See also: Amnesty International: Violence Against Women on the Increase and Still No Protection, AI Index: ASA 33/008/2002, 17 April 2002. 89 See: Human Rights Watch ‘The Jurisdiction Dilemma’, available at http://hrw.org/english/docs/2005/03/21/pakist10356.htm, published in Dawn 21 March 2005. 90 This term is borrowed from Ratna Kapur: R Kapur, ‘The Tragedy of Victimization Rhetoric: Resurrecting the “Native” Subject in International/Post-colonial Feminist Legal Politics’ (2002) 15 Harvard Human Rights Journal 2. 91 See: ‘Ban on Rape Victim Leaving Pakistan’ The Guardian, 13 June 2005. 92 See: Human Rights Commission of Pakistan, statistics on honour crimes, available at: http://www.hrcp-web.org/Women.cfm. 93 S Benhabib, The Claims of Culture: Equality and Diversity in the Global Era (Princeton, NJ, Princeton University Press, 2002) 86.

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down by discourse ethics for any just negotiation of cultural claims: egalitarian reciprocity, voluntary self-ascription and freedom of exit and association. The religious right and conservative nationalists in Pakistan have attempted to deny the universal legitimacy of these principles. The last year in Pakistan has seen an increasing number of women entering the upper and lower houses of Parliament, following the reservation of 33 per cent of seats for women in both houses. The introduction of the reserved seats, stemmed from a recommendation made by the National Commission on the Status of Women and reflects a recognition of the importance of women’s political participation in the governance of Pakistan. Participation, without the safeguards of fundamental rights, or a constitutional commitment to equal citizenship, is unlikely, however, to lead to fundamental reforms for women. As the Human Rights Commission of Pakistan has argued, the impact of more women participating in Parliament remains uncertain.94 The introduction of reserved seats for women has coincided with an increasing talebanisation of Pakistani society, particularly in Western areas, and the coming to power in NWFP (North Western Frontier Province) of the Muttahida-Majlis-e-Asmal, a coalition of religious right parties.95 The North-west Frontier Province Shariat Act, 2003,96 was passed by the Provincial Assembly in June 2003. The Act reaffirms the supremacy of the Shari’ah within the legal system. Its precise legal import is unclear. Its symbolic importance, however, is not insignificant. Already, attempts have been made to introduce strict dress codes and to enforce the wearing of the hijab in all public places. The rise of the religious right in Pakistan is evidence of what many commentators have identified as a ‘mullah-military’ alliance,97 an alliance that reflects the willingness of both ‘mullahs’ and the military in Pakistan to curb democratic deliberation. This alliance also reveals the limits of General Musharaff’s so-called policies of ‘enlightened moderation’, policies that are frequently subordinated to the demands of the religious right and to expediencies of the ‘war on terror’. The increasingly politicised nature of Islam in Pakistan has subordinated women’s human rights to political expediency and to cultural claims. Pakistan’s ‘opt-out’ of CEDAW, the appeal to the local and the domesticating of human rights, reinforces that subordination. The dangers inherent in yielding to cultural claims were recognised by Lord Hoffmann in the Shah

94 Human Rights Commission of Pakistan, State of Human Rights in Pakistan, 2001 (Lahore, HRCP, 2002) 235. 95 See generally: T Ali, ‘The Colour Khaki’ (2003) 19 New Left Review 5. 96 Gazette of NWFP, Extraordinary 19 June 2003. 97 See: AD Hasan, ‘Pakistan’s Moderates are Beaten in Public’ International Herald Tribune, 15 June 2005, reporting on the beating of Asma Jahangir, UN Special Rapporteur on Freedom of Religion and her sister, Hina Jilani, UN Special Rapporteur on the situation of Human Rights Defenders.

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and Islam cases in the UK,98 involving two Pakistani women fleeing domestic violence and state-sanctioned discrimination in Pakistan. The UK Immigration Appeals Tribunal had earlier rejected evidence concerning discrimination against women in Pakistan, stating that it contained, ‘overt and implicit criticisms of Pakistani society and the position of women in [...] Islamic states.’99 The purpose of the 1951 Convention Relating to the Status of Refugees, the Tribunal concluded, was not to award refugee status because of ‘a disapproval of social mores or conventions in non-western societies.’100 In the House of Lords, however, Lord Hoffmann rejected the relativism implicit within the Tribunal’s findings, appealing instead to universal human rights principles. Discrimination against women was, he said, ‘plainly in pari materiae with discrimination on grounds of race,’101 offending against women’s claims to equal citizenship. Concluding that women in Pakistan qualified as a ‘particular social group’ under the 1951 Convention, he held that a well-founded fear of persecution could not be ignored merely on the ground that this would imply criticism of the legal or social arrangements in another country.102 Against the background of the ‘war on terror’ and US–Pakistan political alliances, the possibility of contestation and critique becomes ever more difficult and ever more reliant on the fragile instruments of international human rights law. Challenging the claims of the religious right, in Pakistan, as elsewhere, requires a universalistic normative framework. While feminist movements may draw on local strands of resistance, on egalitarian principles within Islam, these strategies rely on the support of human rights norms, and legal regulation to give effect to those norms. Insider methodologies are crucial to the expansion of moral–political dialogue and to highlighting the diversity within religious—cultural traditions. Without a commitment to universalistic principles, however, the possibility of debate, contestation and challenge is denied. Speaking at the Fourth World Conference on Women at Beijing, Benazir Bhutto emphasised the importance of distinguishing between Islamic teachings and social taboos ‘spun by the traditions of a patriarchal society.’103 This is a distinction, she said, that ‘obscurantists’ would not like us to see. As the Lahore High Court noted, Islam has been distorted under the influence of a host of prejudices, bequeathed by ‘history, tradition and feudalism’.104 The advent of Islam, they said, was a milestone in human civilisation, bringing with it equality between women 98

Shah and Islam cases [1999] 2 All ER 546. Quoted by Lord Hoffmann at: Ibid, p 566. 100 Ibid. 101 Ibid. 102 Ibid, p 566. 103 Statement by Benazir Bhutto, Prime Minister of Pakistan, at the 4th World Conference on Women (Beijing, 4–15 September 1995), UN Doc A/CONF177/20/Add.1 104 Above, n 62, p 514. 99

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and men. However, ‘male chauvinism, feudal bias and compulsions of a conceited ego’, had since distorted the egalitarian principles of Islam. In choosing an egalitarian Islam, the High Court drew on universal human rights principles, principles they said, that were rooted in Islam and in Pakistan’s legal traditions. Their judgment reflects the necessity of a universalistic normative framework, if the pursuit of gender equality is not to be compromised by competing religious—cultural claims or political expediencies. The expanding agenda of international human rights law has meant that discourses on women and children’s rights have shifted from being ‘wespecific’ religious—cultural claims, to justice-oriented universalistic claims. As we have seen, much work remains to be done to realise gender justice in practice. A dual-track aproach to cultural conflicts can assist feminism in realising this goal. If feminism abandons universalism and with it, the discourse of human rights, however, the pursuit of gender equality will be constantly in danger of losing out to political expediency and to religious— cultural claims.

10 Debating Gender Equality in India: Feminism and Multicultural Dilemmas

T

the feminism/multiculturalism debate in India, a state that has long struggled with the accommodation of religious–cultural claims. The name Shah Bano has become synonymous with this struggle.1 Shah Bano’s case highlighted the tensions that arise when the pursuit of gender equality comes into conflict with the religious–cultural claims of minority groups. These tensions, coupled with the communalisation of politics and the marginalisation of religious minorities, have proven a constant obstacle to family law reform in India. In 1994, India ratified CEDAW, subject to a declaration limiting its obligation to challenge the personal laws of religious communities, in line with its stated policy of ‘non-interference in the personal affairs of any Community, without its initiative and consent.’2 This declaration draws a clear line between public and private domains, and signals a willingness to yield to religious–cultural claims, whether or not such claims conflict with HIS CHAPTER EXAMINES

1

Mohammed Ahmed Khan v Shah Bano Begum [1985] AIR SC 945 The full text of the declaration reads: i) With regard to Arts 5(a) and 16(1) of the Convention on the Elimination of All Forms of Discrimination Against Women, the Government of the Republic of India declares that it shall abide by and ensure these provisions in conformity with its policy of non-interference in the personal affairs of any Community without its initiative and consent. ii) With regard to Art 16(2) of the Convention on the Elimination of All Forms of Discrimination Against Women, the Government of the Republic of India declares that though in principle it fully supports the principle of compulsory registration of marriages, it is not practical in a vast country like India with its variety of customs, religions and level of literacy. See: United Nations Treaty Collection http://www.unhchr.ch/html/menu3/b/treaty9_asp.htm (as of 5 August 2002). See also: Concluding Observations of the Committee on the Elimination of Discrimination Against Women: India, 1 February 2000, UN Doc A/55/38, paras 30–90, para 40. Unlike other states parties to the UN Convention on the Rights of the Child, India has not entered a reservation or declaration invoking religious-cultural claims. The declaration submitted on ratification refers only to the question of child labour and the need for progressive reform in this area. For the full text of the declaration, see: http: //www.unhchr.ch/html/ menu3/b/treaty15_asp.htm. 2

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the requirements of gender equality. It also signals a shift away from the constitutional commitment to a uniform civil code (UCC), set out in Article 45 of the Directive Principles, and reflecting a founding commitment to secularism in India’s constitutional text. The Government’s policy of non-interference privatises the pursuit of gender equality and yields to a discourse of communalism that defines individual identities through religious attachments.3 Feminist movements in India have called for reform of religion based personal laws that discriminate against women and have called for the extension of human rights guarantees beyond the traditional confines of the public sphere. In more recent years, however, the rise of the Hindu right and Hindutva as a political phenomenon has led to fears that law reform will become yet another tool to silence religious minorities.4 Secularism has become a powerful weapon in the Hindu right’s quest for power, as has the discourse of human rights.5 The particular interests of the Hindu right are concealed behind ‘a universalistic mask’6 in yet another example of the ‘shameless instrumentalization of human rights’.7 For feminist movements in India, calls for a uniform civil code run the risk of becoming a vehicle for greater hinduisation of the State and its institutions. This hijacking of the secular agenda has left feminists and human rights activists without their traditional supports, reluctant to challenge the discriminatory cultural practices of religious minorities lest this adds further support to the Hindu right. Negotiating these conflicting agendas has raised many challenges for feminism as the pursuit of gender equality is, once again, constrained by the demands of cultural nationalism. The glorification of women’s roles as wives and mothers, as chaste and sexually 3 See generally: G Panday, The Construction of Communalism in Modern India (Delhi, OUP, 1990); B Chandra, Communalism in Modern India (Delhi, Vani Educational Books, Vikas Publishing House, 1984). 4 Hindutva is the ideology underpinning the Hindu right movement in India. It is a movement that is committed to the establishment of a Hindu state and is against the appeasement of religious minorities, a policy that in its view has contributed to the malaise within contemporary Hindu society in India. The primary organisations involved in promoting Hindutva are the Bharatiya Janata Party (BJP), the Rashtra Swayamsevak Sangh (RSS), the Vishva Hindu Parishad (VHP) and the militantly anti-Muslim, Shiv Sena. See: R Kapur and B Cossman, Subversive Sites: Feminist Engagements with Law in India (London, Sage, 1996) 234–35. Basu, et al, describe ‘Hindutva’ as follows: At the heart of Hindutva lies the myth of a continuous thousand year old struggle of Hindus against Muslims as the structuring principle of Indian history. Both communities are assumed to have been homogenous blocks—of Hindu patriots, heroically resisting invariably tyrannical, ‘foreign’ Muslim rulers. T Basu, et al, Kahki Shorts, Saffron Flags: A Critique of the Hindu Right, 2. 5 See: B Cossman and R Kapur, Secularism’s Last Sigh? Hindutva and the (Mis)Rule of Law (New Delhi, OUP, 1999) 2. 6 Ibid. 7 J Habermas, Postnational Constellation: Political Essays (Cambridge, Polity Press, 2001) 129.

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pure, infuses the very discourse of nationalism.8 Today, the relationship between issues of sexuality, culture and the public/private divide continue to dominate debates on legal reform and to pose ongoing challenges to feminist movements.9 The debates that have taken place in India provide a useful context within which to explore the negotiation of cultural conflicts. In India, as elsewhere, debates between feminism and proponents of multiculturalism have become increasingly polarised. As we see in the debates surrounding the Shah Bano controversy, such negotiations all too often lead to a kind of ‘traffic in women’;10 the males of the dominant community signal their respect for minority communities by refusing to question gender relations within those communities. The dual-track approach of discourse ethics aims to build a ‘difference-sensitive’ model of inclusion. The dual-track model, unlike Rawlsian political liberalism, does not compromise on the pursuit of gender equality. The core moral principles of universal respect and egalitarian reciprocity define the limits of reasonable pluralism. These principles apply across public and private domains, rejecting policies of ‘non-interference’ such as those proclaimed by the Indian Government.11 Discourse ethics is not opposed to multicultural arrangements. The dualtrack approach recognises the legitimacy of claims to self-government for minority communities. Multicultural arrangements, however, must be ‘just’, and if feminism is to realise its transformative potential, those tests of justice must extend to domains labelled as public or private. In what follows, we explore the tensions between gender equality and cultural claims that have arisen in India, focusing, in particular, on the controversy surrounding the Shah Bano judgment. Drawing on the dual-track approach of discourse ethics, I argue that reconciling feminism and the politics of multiculturalism requires a universalistic framework—to secure both gender equality and a flourishing of difference. A. SHAH BANO, COMMUNAL POLITICS AND FEMINIST DILEMMAS

Debates surrounding gender equality and religious–cultural differences have a long and troubled history in India. Colonial rulers viewed Indian women as ‘dependent subjects’, tied to the claims of their husbands, families,

8 M Chaudhury, Indian Women’s Movement: Reform and Revival (Delhi, Radiant Publishers, 1993) 78. 9 R Kapur, Erotic Justice: Law and the New Politics of Postcolonialism (London, Glasshouse Press, 2004) 31. 10 See: S Benhabib, The Claims of Culture: Equality and Diversity in the Global Era (Princeton, NJ, Princeton University Press, 2002). 11 See the interpretive declaration submitted by India on ratification of CEDAW, above n 2.

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communities. Victorian feminists also contributed to the portrayal of the Indian woman as a dependent subject. As feminists, their own claims to political agency were supported by what they claimed as a special moral responsibility to ‘save’ the downtrodden women of the colonies. Indian women appeared as the natural and logical ‘white woman’s burden’ and their ‘unhappy condition’ provided a justification for the imperial presence in the subcontinent. The continuation of colonial rule was necessary to rescue the atavistic, abject Indian woman from the brutality of the Indian male.12 The claim of Victorian feminists to speak for Indian women was replicated in the claims of many Indian nationalists who saw their political roles as crucially bound up with improving the status of Indian women and safeguarding their honour against the polluting forces of the West.13 For many nationalists, the home, and women’s place within in it, was reified as a kind of inner space, within which colonial hegemony could be challenged and denied. Colonial rule was portrayed as an interruption in the authentic life-story of the Indian nation.14 Within the private, domestic sphere, women were charged with safeguarding that story, becoming the bearers of culture, the repository of traditions. As Kapur notes, ‘Women who occupied this place, in turn, came to represent all that was pure and untouched by colonialism. Indian womanhood became the embodiment of nationalism, as the nation came to be constructed as a divine mother, and women in general became the mothers of the nation.’15 Many women were complicit in this idealisation of Indian womanhood, supporting nationalist claims that ‘their’ religion or culture treated women with greater respect than did the cultures and traditions of the West. Gender came to play a role in the ideological service of both colonial Empires and of Third World nationalist movements, ‘helping to position Western and non-western women against each other as competing cultural embodiments of appropriate femininity and virtue.’16 Personal laws played a key role in demarcating the boundaries of communal and gender identities, becoming highly contested sites of political struggle. Hindu and Muslim women increasingly came to be defined as ‘boundary markers’,17 leading to minutely defined, stringent controls on women’s behaviour, their roles and status. These controls were exercised particularly within the domestic sphere, where colonised communities continued to maintain a degree of autonomy or ‘freedom’ from colonial rule. Here, as elsewhere,

12

R Kapur, above n 9, p 29. U Narayan, Dislocating Cultures: Identities, Traditions and Third World Feminism (London, Routledge, 1997) 18. 14 Ibid, p 17. 15 R Kapur, above n 9, p 31. 16 U Narayan above n 13, p 19. 17 K Sangari, below n 24, p 238. 13

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the public/private divide represented the ‘ideological marker that shifts in relation to the role of the state in different historical moments, in particular contexts, and in relation to particular issues.’18 This shifting can be seen in the constant struggles between social reformers and political/cultural nationalists in relation to intervention in the domestic sphere. Social reformers campaigned for legal reforms under colonial rule, seeking prohibitions of child marriage, elimination of sati, recognition of widows’ right to remarry.19 For nationalist movements, however, the sphere of the family needed to be secured from colonial intervention, with the result that resistance to law reform became a symbol of Indian resistance to colonial rule.20 The division between public and domestic spheres was given legal sanction by the Warren Hastings Plan of 1772, which provided that Hindus and Muslims in the Indian sub-continent were to be governed by their own laws in disputes relating to inheritance, marriage, caste and other religious usages and institutions.21 In 1781, succession and inheritance were added to this list. In all other matters, the courts were to act, ‘according to justice, equity and good conscience’.22 The reception of secular and western laws into other spheres of the legal framework created a sharp dichotomy between systems of personal law and the general law applying irrespective of religion.23 As Kum Kum Sangari notes, the division between public and domestic spheres underpinning the Hastings Plan was a familiar one to the colonial rulers. It reflected a ‘cult of domesticity’ that permeated much of the British legal system.24 The process of communalization has been described as involving a ‘dynamic nominalism’, according to which people came to fit the categories that colonial authorities fashioned for them.25 The ideology of communalism was reinforced by the use of the categories of caste and religion in the censuses undertaken by the British in India. Political representation also became communal, as seats in the legislative assembly were reserved for different communities according to principles of proportionality.26

18 S Boyd, Challenging the public/private divide : feminism, law, and public policy ( Toronto, University of Toronto Press, 1997. 19 T Sarkar, Hindu Wife and Hindu Nation (New Delhi, Permanent Black, 2001). 20 R Kapur, above n 9, p 29. 21 See ch 9, pp 171–172. 22 §60 of the 1781 Regulation. 23 See, for example, The Indian Penal Code (1860); Code of Criminal Procedure (1861); Code of Civil Procedure (1859). 24 K Sangari, Politics of the Possible: Essays on Gender, History, Narratives, Colonial English (London, Anthem Press, 2002) 163. 25 See: I Hacking, ‘Making Up People’ in T Heller, M Sosna and DE Wellbury, (eds), Reconstructing Individualism: Autonomy, Individuality and the Self in Western Thought (Stanford, CA, Stanford University Press, 1986) 227–28. 26 See: D Chakrabarty, ‘Modernity and Ethnicity in India’ in D Bennet, (ed), Multicultural States: Rethinking Difference and Identity (London, Routledge, 1998) 91.

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British historians of the colonial era often characterized India as a society weakened by religious divisions. This characterization was taken up by Indian nationalist leaders themselves. To remedy the failings of communal politics, Nehru proposed a secular, pluralist state and the ideal of universal citizenship. However, although the principle of secularism underpins India’s constitutional framework, the precise meaning of secularism has been contested throughout the history of the State.27 As Kapur and Cossmann note, secularism has never been taken for granted in India, ‘The struggle to secure its constitutional and political protection has been long and hard.’28 As a principle adopted in the cause of national unity and integrity, secularism was intended to provide a modus vivendi between communities that had come to define themselves by religious attachments. For many, it has involved a process of drawing lines, demarcating the spheres that ‘legitimately appertain to religion,’29 distinguishing between the secular and spiritual aspects of daily life. Under colonial rule, religious personal laws had become closely intertwined with communal identity.30 Establishing a secular state, it was hoped, would replace communal identities with the ideal of universal citizenship, an ideal that was articulated by Nehru and his followers. For Nehru, national unity required greater uniformity in the administration of justice and the universal application of a set of general laws. Moving beyond the boundaries of communal identities required reform of the separate systems of personal laws inherited from the colonial era. This meant developing a uniform civil code (UCC) that would apply to all citizens, regardless of communal attachments. In a struggling nation state, scarred by the trauma of partition and civil war, however, ‘gender trouble’ could not be countenanced. As many commentators have noted, at times of national crisis and rapid social change, changes in gender relations are perceived as paradigmatic symptoms

27 A Nandy, The Intimate Enemy: Loss and Recovery of Self under Colonialism (Delhi, OUP, 1983); A Nandy, Traditions, Tyranny and Utopias: Essays in the Politics of Awareness (Delhi, Manohar, 1987); B Parekh, Gandhi’s Political Philosophy: A Critical Examination (Indiana, IN, University of Notre Dame Press, 1989). 28 Cossmann and Kapur, above n 5, p 1. 29 Per Shri KM Munshi, Member of the Drafting Committee in the Constituent Assembly, Constituent Assembly Debates, vol VII, 547–48, quoted in VN Shukla, Constitution of India, 9th edn, (MP Singh, Eastern Book Company, 1994). 30 See generally: T Metcalf, Ideologies of the Raj (Cambridge, CUP, 1995); J Nair, Women and Law in Colonial India: A Social History (New Delhi, Kali for Women, 1996); M Galanter and J Krishnan, ‘Personal Law and Human Rights in India and Israel’ (2000) 34 Isr L Rev 34, 101–33; F Pereira, The Fractured Scales: The Search for a Uniform Personal Code (Calcutta, Stree, 2002); SS Ali, Gender and Human Rights in Islam and International Law (The Hague, Kluwer, 2000) ch 6.

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of cultural threat and loss.31 To ease the sense of anxiety in the fledgling nation-state, a compromise was arrived at. Rather than insisting on uniformity within personal laws, Article 44 of the Directive Principles of State Policy directed the State to move towards the adoption of a UCC. The UCC was identified as an aspirational goal within India’s constitutional framework. This compromise, it was hoped, would secure the loyalty of Muslim leaders. Even this compromise, however, attracted criticism from Muslim members of the Constituent Assembly. Ambedkar, one of the chief architects of the constitutional text was unmoved by this opposition. Noting that a uniform code of laws already governed most aspects of human relationships, he defended the need to extend the general scope of the law to marriage and family relations.32 In defence of Article 44, Ambedkar argued that the intention was not to invade the domain of religion but merely to introduce uniformity into the regulation of marriage and succession.33 He and other drafters of the Constitution, however, underestimated the extent to which communal identities had become intertwined with separate systems of personal law. The connection between religion and personal laws was to prove resistant to the reforming agenda of a secular state for many years to come. As a result, women’s claims to equal treatment in matters of marriage and family relations continued to be constrained by the demands of religious communities and attempts at reform of Muslim Personal law, in particular, were to be repeatedly thwarted by conservative forces.34 The controversy surrounding Shah Bano’s case highlights both the potential for reform that comes with rights discourse and the dangers to feminism in yielding to dominant voices within religious communities.35 The Shah Bano case arose from an application for maintenance brought by Shah Bano against her former husband, Mohammed Khan. Her application relied upon Section 125 of the 1973 Code of Criminal Procedure. The 1973 Code, based on the earlier 1872 Code, applied to all Indian citizens,

31 See U Narayan, above n 13, p 20. See also: V Moghadam, ‘Patriarchy and the Politics of Gender in Modernising Societies: Iran, Pakistan and Afghanistan’ (1992) 7 International Sociology 35, 35–47. 32 See: Constituent Assembly Debates, vol VII, 550–52. See generally: DC Ahir, Dr Ambedkar and The Indian Constitution (Delhi, Low Price, 1997) 99. 33 See: Constituent Assembly debates, vol VII, 550–52. See also DC Ahir, above n 32. 34 On reforms of Hindu personal law, see: L Sarkar, ‘Reform of Hindu Marriage and Successsion Laws’ in R Bharati and A Basu, (eds), From Independence Towards Freedom: Indian Women Since 1947 (Oxford, OUP, 1999) pp 39–58. 35 See generally: AA Engineer, The Shah Bano Controversy (Hyderabad, Orient Longman, 1985); KR Khory, ‘The Shah Bano Case: Some Political Implications’ in R Baird, (ed), Religion and Law in Independent India (Delhi, Manohar, 1993) 121–37.

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regardless of religion, and was enacted primarily as a safeguard against vagrancy, ‘or at least some of its consequences’.36 Shah Bano’s husband contended that his liability to pay maintenance should be determined, not under the general law but rather under Muslim Personal Law, in accordance with which the liability of the husband to maintain his divorced wife was limited to the 3–month period of iddat following divorce. The All India Muslim Personal Law Board, a statutory body intervening on behalf of Mohammed Khan, argued that the courts had no right to interfere with the arrangements made by Muslim communities for the maintenance of divorced Muslim women. These arrangements included the payment of mahr (marriage settlement or dower) and the provision of support through Shah Bano’s extended family network.37 The case, which culminated in an appeal to the Supreme Court, raised the question of how and whether the personal laws of a religious community could be subject to the scrutiny of a general law. The key question to be decided by the Court is summarised by Veena Das: ‘How would one resolve conflicts which arise between the desire to preserve culture by a filiative community such as an ethnic or religious minority, and a similar but affiliate community such as the community of women, which wishes to reinterpret that culture according to a different set of principles.’38 It was not the first time that this question fell to be negotiated by the Indian judiciary. Two earlier decisions of the Supreme Court had concluded that Section 125 could be relied upon by Muslim women seeking maintenance.39 With heightening communal tensions, however, the spectre of an exclusively Hindu court determining the terms of India’s multicultural arrangement provoked anger and anxiety amongst conservative forces within the Muslim community. A number of adjudication strategies were open to the Supreme Court. They could simply accept the claims of Mohammed Khan and his supporters and adopt a policy of non-interference in the personal laws of religious communities. They could, in other words, ignore the apparently general provisions of the 1973 Code and yield to the privatising rule of the Shariat Act. This, in itself, however, would not resolve the dispute as the precise meaning and scope of Muslim Personal Law, itself, was contested. Not all

36 Per Sir James Fitzjames Stephen, architect of the Code, cited in V Das, ‘Cultural Rights and the Definition of Community’ in O Mendelsohn and U Baxi, (eds), The Rights of Subordinated Peoples (Delhi, OUP, 1994) 117, 128. 37 Above n 1, p 954, para 31, per Chandrachud CJ. 38 V Das, above n 36, p 137. 39 Two of the earlier decisions were: Bai Tahira v Ali Hussain Fidaalli Chothia [1979] 2 SCC 316; and Fazlunbi v K Khader Val [1980] 4 SCC 125.

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Muslims agreed with the interpretation of the Shari’ah put forward by the Muslim Personal Law and Shariat Boards. The Supreme Court could also have chosen to simply apply the general provisions of the 1973 Code and reject the ‘defence of culture’, raised by Mohammed Khan and his supporters. Choosing this route would have had the added advantage of bringing uniformity to the rules regulating the payment of maintenance, reflecting the constitutional imperative to introduce a uniform civil code. The Supreme Court, however, did not choose either of these strategies. Instead, the Court engaged in a process of reinterpreting the Shari’ah, to determine whether or not there was a conflict between the Code and the requirements of MPL. The Chief Justice concluded that in cases of conflict, the Code of Criminal Procedure would override the personal laws of religious communities.40 The obligation imposed by Section 125 was founded upon the obligation to prevent vagrancy and destitution. That, he said, was ‘the moral edict of the law’ and morality, he said, could not be ‘clubbed with religion.’41 The duty to pay maintenance ‘cut across the barriers of religion.’42 This view was accepted by the five judge bench (all of whom were Hindu). It was open to the Court at this point, to simply apply the general law. The Court, however, did not stop at simple legal regulation. Having determined the priority of the general law, the Court went on to examine whether there was in fact a conflict between the requirements of Muslim personal law and the Code of Criminal Procedure. Noting the Shari’ah’s capacity for evolution, and citing the Report of the Pakistan Commission on Marriage and Family Relations in support of this view,43 the Court undertook a review of a range of sources of the Shari’ah capable of giving guidance on the

40

Above n 1. Ibid, p 948, para7. 42 Ibid. 43 Ibid, per Chandrachud CJ, p 955, para 34, citing Report of the Commission on Marriage and Family Laws, Gazette of Pakistan, Extraordinary, 20 June 1956, (Majority report) 1197. The Report’s conclusion draws on the work of Muslim scholar, Allama Iqbal. In the Commission’s view, MPL was a ‘growing organism’, that had become a conservative and rigid force under colonial rule, failing to respond to ‘progressive forces’ and ‘changing needs’ (p 1203). The Commission’s Report included many proposals and recommendations for reform, leading ultimately to the adoption of the 1961 Muslim Family Law Ordinance in Pakistan. A strong note of dissent, however, was entered to the Commission’s final Report by Maulana Ihtehshamul Haq, signalling the beginning of a controversy that was to plague reforming forces for many years to come. See: Gazette of Pakistan Extraordinary, 30 August 1956 (note of dissent) 1604. See generally: JL Esposito, ‘Muslim Family Law Reform in Pakistan’ (1977) 4(2) Journal of Malaysian and Comparative Law 293; D Pearl, ‘Family Law in Pakistan’ [1969] Journal of Family Law 165; S Mullally, ‘Separate Spheres: Protective Legislation for Women in Pakistan’ (1994) 4 Asian Yearbook of International Law 47. 41

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question of maintenance. Contrary to the view of the All India Muslim Personal Law and Shariat Boards, the Court concluded that the Quran imposed an obligation to provide maintenance beyond the period of iddat. Also contrary to the view of the Board, they concluded that the payment of Mahr (dower) was not sufficient to discharge this obligation. Much of the debate turned on the interpretation of the Arabic word mata, which the Court interpreted as requiring that a husband make provision for his divorced wife, where she was unable to maintain herself. In other words, the duty to make provision for a divorced wife fulfilled the same purpose as Section 125 of the Code, to prevent vagrancy and destitution. Following this interpretation, the Court concluded that there was no conflict between Muslim personal law and Section 125 of the Code.44 Any contrary view, they said, would ‘do less than justice to the teaching of the Holy Quran.’45 Much of the Supreme Court judgment is couched in the discourse of protection. The duty to pay maintenance was conceived as a societal obligation to prevent vagrancy and destitution. Divorced women were represented as a segment of society that had traditionally been subject to unjust treatment and in need of special treatment. Chandrachud CJ cited Verse 241 of the Quran to support his finding of a duty ‘in kindness’ to provide for divorced Muslim women.46 He spoke also of the ‘suffering sections of society’ and the duty to ameliorate this suffering.47 The Supreme Court perhaps recognised the discontent that its findings would generate. Hiding behind the discourse of protection, rather than simply asserting the fundamental rights of Muslim women was perhaps a strategy to diffuse further conflict. If this was their strategy, however, it failed. As Seyla Benhabib notes, the Shah Bano controversy raised issues that went far beyond the case at hand, ‘into the very heart of the practice of legal pluralism, of religious coexistence [...] and of the meaning of Indian national unity and identity.’48 Touching as it did on communal sensibilities, the Supreme Court’s negotiation of the conflicting cultural claims raised in the Shah Bano case was to give rise to considerable controversy. A more cynical reading of the Supreme Court’s judgment might view the protectionist language used as yet another example of the positioning of the Muslim woman as a ‘victim subject’, to borrow Kapur’s term. On this reading, reform of Muslim Personal law, is guided less by the pursuit of equality and more by an exclusionary impulse. 44 In arriving at this conclusion, the Court followed two of its earlier judgments: Bai Tahira v Ali Hussain Fidaalli Chothia [1979] 2 SCC 316; and Fazlunbi v K Khader Val [1980] 4 SCC 125. 45 Above n 1, p 952, para 22. 46 Above n 1, p 952, para 19, citing M Pickthall, T Pickthall, (tr), The Meaning of the Glorious Quran (New York, Dorset, 1988). 47 Ibid, p 954, para 29. 48 S Benhabib, The Claims of Culture: Equality and Diversity in the Global Era (Princeton, NJ, Princeton University Press, 2002) 92.

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B. REINSTATING THE TIES THAT BIND: THE AFTERMATH OF SHAH BANO

The spectacle of an exclusively Hindu Supreme Court determining the scope and content of Muslim personal law provoked an outcry from conservatives within the Muslim community. Shah Bano, under pressure from her own community, disassociated herself from the judgment of the Court and withdrew her claim for maintenance. The All India Muslim Personal Law Board called for legislation to reverse the Court’s ruling.49 Their call led to the enactment of the 1986 Muslim Women (Protection of Rights in Divorce) Act, which attempted to reverse the Supreme Court’s judgment in Shah Bano and provided for a limited obligation to pay maintenance to divorced Muslim women only for the period of iddat. Beyond the period of iddat, the duty to provide for a divorced woman’s well-being fell to the extended family, or failing that, to the broader community through its waqf boards. Many individual Muslims and Muslim organizations had spoken out in defense of the Supreme Court decision and Shah Bano’s claims. Cabinet Minister Arif Mohammad Khan argued that the 1986 Act was anti-constitutional, anti-Islam and inhuman, and several Muslim groups sent protest letters and demonstrated against the Act.50 In spite of this diversity of Muslim opinion on the matter, the Congress Government yielded to conservative forces within the Muslim community. The mass rallies and political power of the legislation’s proponents were important considerations for the Government. The Congress Party had lost support in a number of Muslim dominated districts in the 1985 elections. The Muslim community had been a key constituency of the Congress Party since independence. By passing the 1986 Act and granting continuing autonomy in the area of personal law, the Government hoped to assure the support and votes of the Muslim community. The Government tempered its deference to the claims of conservative Muslims by recommending the adoption of a UCC by the year 2000. This has not yet happened The pursuit of gender equality was deferred, yet again, in the interests of placating communal sensibilities. Absent from the response of the ruling Congress party was a recognition of the legitimacy of Shah Bano’s claims to equal treatment, and of Muslim women’s rights to participate in debates determining the limits of cultural claims. The silencing of Shah Bano, following the Supreme Court’s judgment in her favour, illustrates further the denial of this right. Feminist and other emancipatory interpretations of the Shari’ah were ignored as the ruling Congress party rushed to placate the dominant voices within the Muslim community.

49 50

See: AA Engineer, above n 35. Ibid, p 241.

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The pursuit of a feminist agenda following on from the Shah Bano case was further complicated by the response of the Hindu right. The BJP campaigned against the 1986 Act, arguing that it violated both the constitutional principle of secularism and the rights of Muslim women. It violated the principle of secularism because the Muslim community was allowed to opt out of the general Code of Criminal Procedure and it violated Muslim women’s right to equal treatment because they were to be treated differently from Hindu women. Bal Thackeray, a Hindu nationalist politician argued that the issue was ‘not of religion, but of poisonous seeds of treacherous tendencies ... . Those who do not accept out Constitution and laws, should quit the country and go to Karachi or Lahore ... . There might be many religions in the country, but there must be one constitution and one common law applicable to all ...’.51 The exclusionary impulse underpinning many calls for reform of Muslim Personal law is evident in this statement. The Hindu right was not concerned with gender equality but rather with further fuelling the politics of communalism. As Kum Kum Sangari notes, the dominant model in 20th century Hindu communal discourse had come to rest on male rivalry: ‘... the excessive patriarchal privileges of Muslim men were chastised; women were figured as property endangered by men of “other” groups, men as proprietors governing competing patriarchies, communal tension as between Hindu and Muslim men.’52 Ultimately, in this debate, conservative nationalists within both the Hindu and Muslim communities distorted the discourse of equality to undermine substantive equality as between women and men, and ‘substantive secularism,’ that is, equal respect and accommodation for minority communities.53 The role of the judiciary in adjudicating cultural claims was again the subject of debate in Danial Latifi and Anr v Union of India.54 This case followed on from the Shah Bano controversy and arose from a constitutional challenge brought against the Muslim Women (Protection on Divorce) Act, 1986. The Shah Bano controversy and the enactment of the 1986 Act had given rise to a series of constitutional challenges and conflicting judgments in High Courts throughout India. The Kerala, Bombay and Gujarat High Courts had each concluded that a husband’s duty to make ‘fair and reasonable provision’ for his divorced wife, (provided for under Section 3 of the 1986 Act), included a duty to make arrangements for his wife’s future wellbeing beyond the iddat period.55 A similar conclusion was arrived at by a 51

Cited in AA Engineer, above n 35, p 243–45. K Sangari, above n 24, p 238. 53 Kapur and Cossmann, above n 5, p 257. 54 Danial Latifi v Union of India [2001] AIR SC 3958. 55 See: Arab Ahemadhia Abdulla v Arab Ail Mohmuna Saiyadbhai [1988] AIR (Guj) 141; Ali v Sufaira (1988) 3 Crimes 147; K Kunhashed Hazi v Amena [1995] Cr LJ 3371; K Zunaideen v Ameena Begum [1998] II DMC 468; Karim Abdul Shaik v Shenaz Karim Shaik [2000] Cr LJ 3560; Jaitunbi Mubarak Shaikh v Mubarak Fakruddin Shaikh 1999(3) Mh LJ 694. 52

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full bench of the Punjab and Haryana High Court.56 Opposing views had been adopted in other High Courts, however, limiting Muslim women’s right to maintenance to the iddat period, following the letter of the 1986 Act.57 These judgments contributed to the emergence of a complex web of institutional materials on the subject of Muslim women’s right to maintenance following divorce. They also brought into question the compatibility of the 1986 Act with the constitutional guarantee of equality and the terms of India’s multicultural arrangement. In the Danial Latifi case, the Supreme Court was finally given the opportunity to review the constitutional validity of the 1986 Act.58 The case arose from a series of petitions claiming that the Act violated the constitutional guarantees of equality, life and liberty59 and that it undermined the secular principles underpinning India’s constitutional text. The Solicitor General, defending the constitutionality of the Act, urged the Supreme Court to adopt a contextual approach to the claims raised. He argued that in assessing the fairness and reasonableness of the Act, the Court should take account of the distinct personal laws of the Muslim community. In other words, he argued, religion based personal laws could not be subject to the same tests of justice as applied to other legislation. That there was no right of exit for Muslim women, no ‘opt out’ of the personal laws that applied to them was not considered problematic. The All India Muslim Personal Law Board, intervening in the case, argued that the Supreme Court judgment in Shah Bano was based on an erroneous interpretation of Muslim Personal Law, which the 1986 Act had attempted to correct. The Board criticised the ‘unsafe and hazardous’ route taken by the Supreme Court in Shah Bano,60 and also criticised the Court’s failure to recognise the distinct social ethos of the Muslim community, in particular, the role of the extended family network in providing for the needs of divorced women. The 1986 Act, they argued, attempted to correct these failings and to recognize the legitimacy of the Muslim Community’s claim to a distinct religious–cultural identity. The National Commission for Women, also intervening in the case, urged the Supreme Court to follow the judgments adopted by the Kerala, Gujarat and Bombay High Courts—viz that the duty to make fair and reasonable provision for a divorced Muslim woman extended beyond the iddat period.

56

Kaka v Hassan Bano [1998] II DMC 85 (FB). See: Umar Khan Bahamami v Fathimnurisa [1990] Cr LJ 1364; Abdul Rashid v Sultana Begum [1992] Cr LJ 76; Abdul Haq v Yasima Talat [1998] Cr LJ 3433; Marahim v Raiza Begum 1993(1) DMC 60. 58 Danial Latifi v Union of India [2001] AIR SC 3958. 59 See Arts 14, 15 and 21 of the Constitution of India. In Olga Tellis v Bombay Municipal Corporation [1985] 3 SCC 545 and Maneka Gandhi v Union of India [1978] 1 SCC 248, the Supreme Court held that the right to life and personal liberty, guaranteed by Art 21 of the Constitution, included the right to live with dignity. 60 Above n 1. 57

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The Commission argued that any other construction of the 1986 Act would be a denial of Muslim women’s equal right to life and liberty, as guaranteed by the Constitution. In its judgment on the competing claims brought to it, the Supreme Court adopted what might be viewed as a quintessentially universalist stance. Questions relating to basic human rights and the pursuit of social justice, it held, should be decided on considerations other than religion or other ‘communal constraints’.61 In the Court’s view, the duty to secure social justice was one that was universally recognised by all religions. Vagrancy and destitution were societal problems of universal magnitude and had to be resolved within a framework of basic human rights. Applying a literal interpretation to the 1986 Act, the Court concluded, would deny Muslim women the remedy claimed by Shah Bano under Section 125 of the Criminal Procedure Code. The Court concluded that this reading of the 1986 Act would lead to a discriminatory application of the criminal law, excluding Muslim women from the protection afforded to Christian, Hindu or Parsi women, simply because of their religious membership.62 Applying the presumption of constitutionality to the Act, the Court concluded that this reading could not have been intended by the legislature as it would be contrary to the constitutional guarantees of equality and non-discrimination.63 The Court concluded, therefore, that while the duty to pay maintenance was limited to the iddat period, the requirement to make fair and reasonable provision for a divorced Muslim woman extended to arrangements for her future well-being. Adopting this interpretation of the 1986 Act enabled the Court to uphold the constitutionality of the Act and to avoid the communal triumphalism that might have accompanied a finding of unconstitutionality. It also enabled the Supreme Court to go beyond the limited remedy provided for in the Code of Criminal Procedure under which a statutory amount is set out for the payment of maintenance. The duty to make reasonable provision for a divorced woman allowed for much greater flexibility and attention to the particular needs of divorced women. The strategies adopted by the Supreme Court in the Latifi case were similar to those adopted in Shah Bano and are of particular interest to feminists concerned with the politics of multiculturalism. In the Latifi case, the Supreme Court combined an appeal to universal principles of human rights with an ‘insider methodology’, drawing on internal traditions of resistance within Muslim communities.64 Insider methodologies, however, do not 61

Above n 58, per Rajendra Babu J, p 3967, para 20. Ibid, para 33. 63 Ibid. 64 We see examples of such methodologies in the work of Muslim feminists such as Shaheen Sardar-Ali and Fatima Mernissi: SS Ali, Gender and Human Rights in Islam and International Law (The Hague, Kluwer, 2000); F Mernissi, The Veil and the Male Elite: a Feminist Interpretation of Women’s Rights in Islam (Reading, MA, Addison Wesley, 1991). 62

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remove the responsibility of normative justification. Cultures and traditions consist of many competing sets of narratives. The problem is how to choose between competing narratives and how to justify that choice against those who would deny the validity of egalitarian choices. The Supreme Court in the Danial Latifi case, appealed to the universal legitimacy of women’s claim to equal citizenship. Ultimately, this ensured for Muslim women a more egalitarian application of the Shari’ah. The Court’s judgment treads a fine line between yielding to the cultural claims of the Muslim community, on the one hand, and on the other hand, ensuring Muslim women’s right to equal citizenship. As in the Shah Bano case, priority was given by the Supreme Court to the general law, in this case, the constitutional guarantee of equality. The Court recognised that the rights of Muslim women could not be constrained by their membership of a religious community. The interpretation of the 1986 Act adopted by the Court avoided the kind of binary reasoning that could have led to a condemnation of Muslim personal law and to further communal tensions. In both the Shah Bano and the Latifi cases, the Supreme Court adopted a dual-track approach. Not content to remain within the confines of strict legal regulation, they went on to explore the meaning and scope of Muslim personal law, initiating a dialogue that recognised the diversity within Islam and within the Muslim community itself. The risk, as always, however, is that the Court’s judgment will be perceived as yet another denial of the Muslim community’s right to a distinct cultural identity and will serve to further undermine the community’s ‘sense of belonging’ in the Indian state. Against a background of continuing tensions between Hindu and Muslim communities, this risk will continue to threaten the pursuit of gender equality. While a uniform civil code remains elusive, the search for egalitarian interpretations of the Shari’ah will be the essential to securing greater equality for Muslim women. The Muslim community is not the only religious minority that has faced challenges to its system of personal law. Attempts to reform the personal law of the minority Christian community have also given rise to heated debate. In 2000, the then BJP Government introduced the Christian Marriage Bill, allowing for divorce by mutual consent of the spouses and removing the gender bias inherent within existing divorce laws.65 Although a Christian man could seek a divorce on grounds of adultery, a woman was required to show an additional ground, such as cruelty, desertion or bigamy. Christian women’s groups had been calling for reform of the marriage and divorce laws for some time. When reforming legislation was finally proposed, however, it caused much disquiet within the Christian community. Not only did the bill remove the gender discrimination within

65

See §7 and §10 of the Indian Divorce Act, 1869.

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Christian divorce laws, it also provided that marriages between Christians and non-christians should take place under the procedures provided for in the Special Marriages Act. For those failing to comply with this requirement, a series of penalties were provided. Jyotsna Chatterji of the Joint Women’s Programme (JWP), a Christian Women’s NGO, welcomed the legislation as ‘a major step towards achieving gender justice.’66 However, many within the Christian community expressed fear that the legislation could be used to harass an already vulnerable religious minority. The Christian Marriage Bill was introduced against a background of increasingly violent attacks on the Christian community and rising communal tensions in India.67 For the Christian community, the ‘sense of belonging’ to a multicultural state had become increasingly fragile. It was no surprise, therefore, that the reforming agenda of a Hindu Right Government was greeted with some suspicion.68 Following much debate, the Christian Marriage Bill became the Indian Divorce (Amendment) Act, 2001, re-drafted to reflect the proposals for reform earlier submitted by Christian groups.69 The Act was welcomed by both Christian Church leaders and Christian women’s groups. Again, however, the Hindu Right was portrayed as protecting minority women’s rights against a backward and discriminating religion. The Hindu, a leading national newspaper, reported the Government’s concern to bring relief to the ‘battered and hounded women’ of the Christian community.70 The reforms, it noted, were designed to safeguard Christian women against ‘exploitation by Christian men’71 and would give Christian women rights comparable to those contained in Hindu and secular laws. The laws and practices of the dominant Hindu community were portrayed as the norm against which minority groups were to be measured.72 In this dispute, we see, yet again, the tensions that arise when an attempt is made to limit the cultural claims of a marginalized minority. India’s failure to adopt a uniform civil code has attracted criticism from UN human rights treaty bodies, which have, in recent times, prioritised the pursuit of gender equality over the claims to autonomy and selfdetermination of minority communities. In its Concluding Observations on India’s initial report under CEDAW, the CEDAW Committee expressed

66

‘Gender Justice at Last, Say Christian Women’s Groups’ Indian Express, 3 May 2000. See: ‘Vajpayee Deputes Fernandes to Allay Christian Fears’ 15 May 2000, available at: http://www.rediff.com/news/2000/may/15iype.htm. 68 ‘Christians Oppose Govt move to Present Marriage Bill’ Indian Express, 2 May 2000. 69 An earlier Christian marriage bill had been proposed in 1994, by the Joint Women’s Programme and the ecumenical committee for changes in Christian marriage law. Ibid. 70 ‘Bill on Divorce Act to be Amended’ The Hindu, 18 August 2001. 71 Ibid. 72 See: ‘Christian Divorce Law to Get a More Humane Face’ Indian Express, 26 December 2000. 67

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concern that steps had not been taken to reform the personal laws of religious communities so as bring them into conformity with the Convention.73 In the Committee’s view, the Government’s policy of non-intervention perpetuated sexual stereotypes, son-preference and discrimination against women. The Committee called on the Government to withdraw its declaration to CEDAW and to enact a uniform civil code.74 The Committee on the Rights of the Child has also expressed concern at the persistence of discriminatory social attitudes and harmful traditional practices towards girls in India. Religionbased personal status laws were identified as contributing to gender inequality in areas such as marriage, divorce, custody and guardianship of infants, and inheritance.75 To meet its obligations under the Convention on the Rights of the Child, the Committee called on the State to carry out a comprehensive public education campaign to prevent and combat gender discrimination within the family and to mobilise political, religious and community leaders in support of this effort.76 As yet, however, this has not happened. C. IS MULTICULTURALISM ‘BAD FOR WOMEN’?: A RIGHTS-BASED RESPONSE

In the controversy surrounding the Shah Bano and Danial Latifi cases, we see the tensions that arise between feminism and the politics of multiculturalism. The adoption of the 1986 Act, apparently denying divorced Muslim women’s right to maintenance, illustrates just how ‘bad’ multicultural arrangements can be for women. No doubt, Susan Okin would view the Congress Government’s response to the Shah Bano judgment as yet another example of why feminism should oppose the politics of multiculturalism.77 However, the Supreme Court, in both the Shah Bano and Danial Latifi cases, found alternative ways of negotiating cultural conflicts without adopting the oppositional either/or stance that we see in Okin’s writings. Deliberative democratic models of multiculturalism also find alternative ways of negotiating such conflicting claims and are of particular interest to feminists concerned with the politics of multiculturalism. One of the most insightful discussions of multicultural politics in recent years is to be found in Seyla Benhabib’s essay, ‘The Claims of Culture’.78 Benhabib’s discussion of cultural conflicts is rooted in a ‘cosmopolitan point 73

Above n 2, para 60. Ibid, para 61. 75 Concluding Observations of the Committee on the Rights of the Child: India, 23 February 2000, UN Doc CRC/C/15/Add.115, para 32. 76 Ibid, para 33. 77 SM Okin, ‘Is Multiculturalism Bad for Women: Susan Moller Okin with Respondents’ in J Howard, M Nussbaum and J Cohen, (eds), Is Multiculturalism Bad for Women (Princeton, NJ, Princeton University Press, 1999) 7. 78 S Benhabib (2002), above n 48, p 101. 74

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of view,’79 from which the negotiation of difference is both a pragmatic and a moral imperative. The core moral principles of universal respect and moral reciprocity define the limits of reasonable pluralism, providing a normative framework within which conflicting cultural claims can be negotiated. Within a constitutional framework, they are the constitutional essentials that trump other legal claims. Legal regulation is insufficient, however. As Ratna Kapur notes, ‘law is a complex, multiple and contingent discourse whose meaning is susceptible to context, cultural histories and the legacy of the past.’ It is for this reason that Benhabib proposes a dual-track approach to the negotiation of cultural conflicts, recognizing the need for ongoing contestation, dialogue and debate. It is only through such dialogue and contestation that the ‘discursive relevance of colonial legal histories’ become visible.80 Three key principles define the terms of a just multicultural arrangement: (a) Egalitarian reciprocity; (b) Voluntary self-ascription; (c) Freedom of exit and association.81 Adhering to these principles avoids what Ayelet Shachar has described as the ‘paradox of multicultural vulnerability’82—where women and children become the bearers of culture, the repository of traditions. The first principle, egalitarian reciprocity, requires that members of minority communities should not be granted lesser civil, political, economic and cultural rights because of their membership status. Any other arrangement, serves only to reinforce inequalities within groups. The denial of such rights is evident in the Shah Bano and Danial Latifi cases. In both of these cases, the dominant voices within the Muslim community were seeking to limit the rights of divorced Muslim women. If the Supreme Court had listened to these voices, a woman’s status as a Muslim would have defined the limits of her rights. With the passing the 1986 Act, the Congress Government attempted to do just that. The Supreme Court, and a number of High Courts, however, reasserted the priority of Muslim women’s right to equal citizenship. The requirements of egalitarian reciprocity, albeit couched in the discourse of protection, ultimately won out. The second requirement is that of voluntary self-ascription. This requirement recognises the importance of individual self-determination. Underpinning this requirement, is a recognition that the right to define and control membership cannot be granted to the group at the expense of the individual. In the Shah Bano case, Mohammed Khan and his supporters were attempting to confine Shah Bano within the limits of group membership, 79 S Benhabib, ‘Cultural Complexity, Moral Interdependence, and the Global Dialogical Community’ in M Nussbaum and J Glover, (eds), Women, Culture and Development (Oxford, Clarendon Press, 1995) 235. 80 R Kapur, above n 9, p 50. 81 S Benhabib above n 48. 82 A Shachar, ‘The Puzzle of Interlocking Power Hierarchies: Sharing the Pieces of Jurisdictional Authority’ (2000) 35(2) Harvard Civil Rights—Civil Liberties Law Review 387.

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by denying her the right to invoke a generally applicable law. With the passing of the 1986 Act, the Government defined Muslim women first and foremost as members of a religious community. Any choice as to whether a religion-based system of personal laws would be applicable to them was denied. Group membership and the consequences it entailed, was not based on the voluntary decision of Muslim women, but rather was determined by the claims of community and religion. Many feminists have been critical of the priority accorded to individual autonomy in liberal theories of rights. As the Shah Bano case illustrates, however, without a commitment to the overriding priority of individual autonomy, women remain vulnerable to the claims of nation, religion or community. This brings us to the third and final requirement, that of freedom of exit and association. To satisfy the requirements of a just multicultural arrangement, the freedom of the individual to exit and to disassociate from the group must be unrestricted. Shah Bano, in invoking the Code of Criminal Procedure—a general law—was seeking to exit from the confines of Muslim personal law. Following on from the Supreme Court judgment, the Government sought to deny Muslim women this right to disassociate themselves from the personal laws associated with their religious membership. Danial Latifi, in challenging the constitutionality of the 1986 Act, was questioning the denial of this right to Muslim women. At the heart of this dispute is a tension between a communitarian politics of multiculturalism and the requirements of democratic equality. Communitarian multiculturalists, such as Bikhu Parekh, view culture as constitutive of individual identities.83 For Parekh, culture cannot be viewed as a context of choice alone; cultural membership is not an optional extra. This stronger reading of the role of culture has implications for multicultural arrangements. If we accept the claims of the communitarian multiculturalist, we must recognise cultural membership as a basis for legitimate differentiation. On this reading, states would be required to allow minority groups to opt out of general laws, including constitutional guarantees of equality and fundamental rights. India’s declaration under CEDAW, Stating its policy of non-interference in the personal laws on minority communities,84 would not only be permissible, it would, in fact, be required to protect the distinct cultural identities of religious communities. The Government of India officially claims a policy of non-interference. However, as we see in the controversy surrounding the Shah Bano and Danial Latifi cases, both the judiciary and the legislature have wavered between a reforming agenda and a deference to cultural claims.

83 B Parekh, Rethinking Multiculturalism: Cultural Diversity and Political Theory (Cambridge, MA, Harvard University Press, 2000). 84 Above n 2.

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The principles for a just multicultural arrangement, as set out by Benhabib, are not compatible with the stronger reading of the role of culture put forward by communitarian multiculturalists. Critics might argue that Benhabib’s core principles are themselves rooted in a commitment to individual autonomy that reflects a peculiarly western set of values. This argument has been made against Will Kymlicka’s model of multicultural citizenship. Kymlicka seeks to contain the politics of difference within the constraints of liberal justice.85 ‘Internal restrictions’ denying the priority of individual autonomy, regardless of their roots in religion, culture or tradition, cannot be permitted. Although the value of cultural membership is recognised, it is its contribution to individual human flourishing that is valued and granted legal recognition.86 Kymlicka’s liberal theory of minority rights is criticised as being too tied to western liberal values, and insufficiently sensitive to cultural differences.87 For women like Shah Bano, however, the right to invoke a generally applicable law, and to challenge the terms of her cultural membership, is as fundamental as it is to any ‘western’ woman. Unless the freedom of exit and association is recognised as a core principle in any multicultural arrangement, the pursuit of gender equality will always be subject to the constraints of communal claims, whether from the nation, the family or religious community. Not only will women be denied a right of exit but the very possibility of reinterpreting religious laws or renegotiating religious–cultural legacies will be denied. There may also be times when internal critiques are not enough, when the possibility of radical social criticism requires us to move outside of, or beyond, the constitutive norms of particular communities. There may be times when one’s own culture and traditions are so reified, dominated by such brutal forces, when debate and conversation are so dried up or simply made impossible, that the social critic becomes the social exile.88 When that happens, the right to exit and disassociation is fundamental to any pursuit of an emancipatory agenda.

85 W Kymlicka, Politics in the Vernacular: Nationalism, Multiculturalism, and Citizenship (Oxford, OUP, 2001) 44. 86 W Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (Oxford, Clarendon Press, 1995) 83. A ‘societal culture’ is important because, Kymlicka argues, it gives people ‘access to a range of meaningful options.’ Ibid. See: Human Rights Committee, General Comment 23, Art 27 (50th session, 1994), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc HRI\GEN\1\Rev.1 (1994) 38. 87 See generally: M Malik, ‘Communal Goods as Human Rights’ in C Gearty and A Tomkins, (eds), Understanding Human Rights (London, Mansell, 1996) 138; C Joppke and S Lukes, Multicultural Questions (Oxford, OUP, 1999); W Kymlicka, Politics in the Vernacular: Nationalism, Multiculturalism, and Citizenship (Oxford, OUP, 2001) 49. 88 S Benhabib, Situating the Self: Gender, Community and Postmodernism in Contemporary Ethics (Cambridge, Polity Press, 1992) 222.

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The deliberative democratic model of multiculturalism outlined by Benhabib may challenge different ‘ways of life’ in a very fundamental sense. Voluntary self-ascription or freedom of exit and association are principles that may be incompatible with a way of life that views group membership as a given. These conditions are necessary, however, if gender equality is to be safeguarded in a multicultural society. Importantly, however, the dual-track approach recognises the need to go beyond mere legal regulation of conflicting cultural claims. This is important in a context where communal tensions are running high and legal regulation of cultural claims may fuel those tensions further. A combination of legal regulation and enforcement of constitutional essentials with an expanded moral–political dialogue allows for a process of contestation and challenge and also allows for subordinated voices within religious communities to be heard. Such dialogues can lead to a reinterpretation of inherited traditions, and a recognition that religious communities and systems of personal law may have within themselves the possibilities of more egalitarian outcomes. The strategies adopted by the Indian Supreme Court provide us with valuable lessons on the cultural mediation of human rights norms. In the Shah Bano case, we see the Supreme Court appealing to an egalitarian Islam, recognising the diversity within Islam and rejecting the dominant voices of the Islamic Shariat and All-India Muslim Personal Law Boards. Instead, the Supreme Court chose to listen to sub-altern voices, voices that were seeking equality within and between religious communities. Those voices, though often appealing to background cultural justifications to support their claims, accepted Muslim women’s right to be treated as equal citizens. A commitment to the constitutional essential of equality was the starting point for the Supreme Court’s judgment in the Latifi case. In the Shah Bano case, it was the generally applicable law, the Code of Criminal Procedure and the societal obligation to ensure that Muslim women were not vulnerable to destitution and poverty as a result of a discriminatory application of the law. In both of these cases, we see an attempt to combine legal regulation with an expanded moral–political dialogue on the meaning and scope of constitutional essentials and religion-based personal laws. The emphasis on the importance of ongoing dialogue and contestation distinguishes Benhabib’s dual-track approach from alternative multicultural arrangements such as Ayelet Shachar’s ‘joint governance’ model.89 Shachar’s model involves a complex system of multicultural jurisdictional authorities each drawing on diverse sources of legal authority, depending on

89 See: A Shachar, above n 82; A Shachar, Multicultural Jurisdictions: Cultural Differences and Women’s Rights (Cambridge, CUP, 2001).

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the nature of the claims in question. The problem, however, is that Shachar privileges legal regulation at the expense of political–cultural dialogue. The legal process is shielded from both the dynamism and the unpredictability of such dialogue. The result is ‘a kind of multicultural cold war’,90 peace without reconciliation, bargaining without mutual understanding. The process of moral and political learning, necessary for any vibrant multicultural society are stifled by legal maneuvers. As Benhabib points out, ‘The laws, as the ancients knew, are the walls of the city, but the art and passion of politics occur within those walls’.91 What is needed is a dialectic between constitutional essentials and the actual politics of multicultural societies. This is a dialectic that is missing from Shachar’s multicultural accommodationism. The failure to provide for an ongoing process of dialogue and confrontation can lead either to a legitimation of ‘culture-controlling elites’ or to fragmentation and conflict. In the aftermath of the Shah Bano case, the Congress Government yielded to the demands of conservative forces within the Muslim community, legitimating the claims of ‘culture-controlling elites’. This led to fragmentation and conflict within the women’s movement, within the Muslim community itself and between minority and majority communities in India. Such conflict, in turn, limits the possibility of transforming the inherited traditions of religious communities. Issues relating to group-specific rights and cultural claims need to be understood in the context of the lives of religious communities, who are often isolated from the comforts of citizenship and denied a sense of belonging.92 In the context of Hindutva and the rise of the Hindu right, a vulnerable minority is unlikely to accept a proposal for reform that threatens its own dominant traditions. This is the challenge faced by feminists in India who, on the one hand, advocate universal human rights principles as a means to peaceful coexistence and, on the other hand, recognise that these principles have been hijacked and distorted by the policies of Hindutva. D. CONCLUDING REMARKS

Proposals to reform the personal laws of religious communities raise particular difficulties for feminism. On the one hand, many feminists have criticised discriminatory personal laws. They have called for a uniform civil code that would guarantee women equal rights regardless of their reli-

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S Benhabib, above n 48, p 129. Ibid, p 130. See HK Bhabha, ‘Liberalism’s Sacred Cow’ in S Okin, Is Multiculturalism Bad for Women? (Princeton, NJ, Princeton University Press, 1999) 79, 79–84. 91 92

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gious membership. On the other hand, feminists have been concerned to recognise the significance of religious and cultural differences between women and have sought to avoid the homogenising tendencies of universal norms. A concern not to further isolate and marginalise minority communities further complicates debate. Martha Nussbaum argues that the role of religion in this debate makes criticism and scrutiny more difficult. It is, she says, a peculiarly liberal dilemma: ‘If the government defers to the wishes of the religious group, a vulnerable group of individuals will lose basic rights; if the government commits itself to respecting the equal human rights of all individuals, it will stand accused of indifference to the liberty of conscience.’93 Missing from this debate, however, is a recognition of women’s right to liberty of conscience as dissenting voices are silenced and feminist interpretations of religious traditions are rejected. Protecting the right to liberty of conscience also requires that dissenting voices within religious communities are given a say.94 The right to ‘opt out’ or to follow more egalitarian religious teachings forms part of the right to liberty of conscience. Multicultural arrangements too often deny such intra-group liberties. Though accommodation is made in the name of respecting differences, dissenting voices within religious communities are given little support. A defensive liberalism seeks to resolve multicultural dilemmas by dismissing multicultural politics, as Susan Okin does, or by placing cultural conflicts on the privacy side of the public/private divide, as Rawls does. We see such defensiveness in the Government of India’s declaration of a policy of ‘non-intereference’ in the personal laws of religious communities made on ratification of CEDAW. A democratic multiculturalism, recognising the need both for legal protection of universal norms and for ongoing debate and contestation attempts to avoid the dangers of such compromises. The deliberative democratic model of multiculturalism, proposed by Benhabib, recognises the importance of challenging, negotiating and if necessary, subverting the boundaries of cultural identities. This process of challenge and re-negotiation takes place at a number of levels, within and between minority and majority cultures. We can see the beginnings of such a process of negotiation and challenge in the Supreme Court judgments in the Shah Bano and Danial Latifi cases. The Supreme Court engages in a close scrutiny of the cultural claims made to support restrictions on a divorced Muslim woman’s right to maintenance. In the Shah Bano case, the

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M Nussbaum, Sex and Social Justice, (SSJ) (Oxford, OUP, 1999) 84. See generally: V Das, ‘Cultural Rights and the Definition of Community’ in O Mendelsohn and U Baxi, (eds), The Rights of Subordinated Peoples (Delhi, OUP, 1994) 117. 94

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Court, perhaps recognizing the heightened nature of communal tensions in India, sought to root its findings in Islam itself. In the Latifi case, the Court remained within the constraints of the 1986 Act and avoided a finding of unconstitutionality while continuing to assert the primacy of the constitutional guarantee of equality. Opting to listen to subaltern voices concerning the meaning and scope of Islam, rather than those of the All-India Muslim Personal Law Board and the Islamic Shariat Board was, in many ways, more controversial than an application of constitutional principles or international standards. The Courts’ judgments, by appealing to an egalitarian Islam, however, ultimately lend more support to those seeking to reinterpret inherited traditions and practices. For Muslim feminists, seeking to challenge the dominant voices within Muslim communities, it offers support to their claim to define their own ‘minority selves’.95 As Uma Narayan points out, however, this process of renegotiating religious legacies can only take place if women are assured of an equal right to participate in the definition of religious norms.96 The core principles of egalitarian reciprocity, voluntary self-ascription and freedom of exit, ensure that women’s human rights are not determined by religious membership. These limits are necessary to ensure that multicultural arrangements meet requirements of gender justice. Engaging in feminist critique becomes difficult where communal tensions are running high. In India, the Hindu Right has hijacked the discourse of equality and human rights, challenging the religious laws of minority communities, not in the name of equality but rather domination. The rise of Hindutva as a political phenomenon has left little space for feminism to challenge discriminatory personal laws and practices. The debates surrounding conflicting cultural claims in India highlight the difficulties that arise for feminism when we seek to read an emancipatory agenda directly from inherited traditions. In both the Shah Bano and the Danial Latifi cases, the Supreme Court appealed to the universal legitimacy of human rights principles to support its reading of the Shari’ah. In doing so, they refused to yield to the dominant voices in the Muslim community or to exempt cultural traditions and practices from scrutiny and challenge. As Benhabib points out, ‘Moral autonomy and cultural pluralism need not always conflict, but when they do it is important to know where one stands.’97 In the context of multicultural societies, the pursuit of gender equality requires us to engage in an ongoing moral conversation,

95 This term is borrowed from Karen Knop. See: K Knop, Diversity and Self-determination in International Law (Cambridge, CUP, 2002). 96 U Narayan, Dislocating Cultures: Identities, Traditions and Third World Feminism (London, Routledge, 1997) 37. 97 S Benhabib (2002), above n 48, p 58.

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informed by the core principles of universal respect and egalitarian reciprocity. Such dialogues can be risky and unpredictable. They may lead to further polarisation or to greater intercultural understanding. Ultimately, the goal is to arrive at just multicultural arrangements and to extend the comforts of citizenship to vulnerable minorities. A deliberative democratic model of multiculturalism and a dual-track approach to cultural conflicts, I would suggest, can assist feminism in the pursuit of these goals.

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increasingly defined itself in opposition to universalism and to discourses of rights. Rejecting the troubled legacies of Enlightenment thinking, difference feminists have urged a return to the local, to the particular, and have questioned the premises upon which the international human rights movement is based. This concern to move beyond the troubled legacies of Enlightenment traditions of rights is wellfounded. Human rights discourse has failed to live up to its promise of an inclusive cosmopolitanism. But the promise, nonetheless, remains. The failure lies not with human rights discourse, per se, but rather the pseudouniversalism that has constrained much of the theory and practice of human rights. Difference feminists and cultural critics have exposed the falsely universalising claims that have denied the possibility of an inclusive cosmopolis. In the debate on reservations to human rights treaties and in privatising appeals to religious–cultural differences, we see the tainting of human rights discourse with statist concerns, conservative nationalisms, and patriarchal traditions. Rather than abandoning the discourse of human rights, however, the challenge for feminism is to transform the theory and practice of human rights, to hold it to its promise of creating a just and inclusive society. Much of feminist writing on international human rights law has been concerned to ‘add women’ in to the human rights agenda and has remained largely within the confines of liberal feminism. In the last decade, however, difference feminists—Ratna Kapur, Diane Otto, Karen Engle, to name a few—have joined with cultural critics to argue that the very project of international human rights law is fundamentally flawed. Not only has international human rights law failed to live up to its promises—as liberal feminists have argued—but its very roots are themselves called into question. While liberal feminists have continued with a reforming agenda, difference feminists have questioned the wisdom of this agenda. Against this background, the challenge of normative reconstruction of human rights thinking and practice remains and requires more than simply adding feminist concerns to the human rights agenda. A rethinking of the theory and practice of human rights is required. To quote Diane Otto: ‘The reinvention of the struggle for women’s equality [...] means drawing on women’s long histories of resistance EMINIST THEORY HAS

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in order to replace the injured subjectivities produced by human rights law with subjects who have agency to struggle for their rights.’1 Discourse ethics, and its post-metaphysical defence of universalism, offers a key to this process of rethinking. Discourse ethics has attracted considerable attention from public lawyers. As yet, however, it has attracted little attention from international lawyers. This book begins to explore the implications that discourse ethics might have for our understanding of human rights. It attempts to explore how and whether discourse ethics can inform our thinking about human rights, and, in doing so, reconcile feminism and the global feminist project with the universalistic discourse of rights. Critical legal theory has in recent years placed increasing emphasis on dialogic practices. However, within much critical legal theory, while the importance of democratic deliberation is acknowledged, the universalistic premise of discourse ethics is rejected. Martti Koskeniemmi, for example, presents us with a discursive model of international law. He also argues, however, that international law has, ‘no given focus or centre.’2 From this perspective, there is, to borrow a phrase from Richard Rorty, no limit to the ‘plasticity of the human self’.3 For feminists, who are struggling in many parts of the world to overcome deeply rooted structural inequalities, the absence of such limits is problematic. A commitment to the importance of democratic dialogue can also be seen in Barbara Stark’s postmodern conception of international law. Like Yeats’s Crazy Jane, she says, we must recognise that women are a diverse group and that each woman must be allowed to speak for herself.4 Underpinning this postmodern conception of international law is an appeal, yet again, to the value of democratic participation, to the right to have ‘a say’ and to women’s right to speak for themselves. Such rights claims, if they are to be persuasive, however, require normative justification. Iris Young similarly emphasises the transformative potential of dialogic practices. She makes normative claims concerning structural injustices and oppression, but seems to suggest that universalist discourses contribute to, rather than challenge those structures of injustice, the mechanisms of oppression. In placing her faith in the transformative potential of dialogic practices, she seems to presume the existence of a discursive space or at least the possibility of such a space within which a free-floating pluralism can

1 D Otto, ‘Disconcerting “Masculinities”: Reinventing the Subject of International Human Rights’ in D Buss and A Manji, (eds), International Law: Modern Feminist Perspectives (Oxford, Hart Publishing, 2005) 105, 128. 2 M Koskenniemi, ‘International Law in a Post-realist Era’ (1995) 16 Australian Yearbook of International Law 1–19, 17. 3 R Rorty, ‘Feminism and Pragmatism’ in GB Peterson, (ed), The Tanner Lectures on Human Values (Salt Lake City, UT, University of Utah Press, 1990) 1, 26. 4 B Stark, ‘Women and Globalization: The Failure and Postmodern Possibilities of International Law’ (2003) 33 Vand J Transnat’l L 503, 570–71.

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develop. The creation of discursive spaces, however, requires the support of universal norms, a commitment to the ideals of equal rights and the guarantee of equal rights to democratic participation. There are shortcomings within discourse ethics, as feminist critics have pointed out. Seyla Benhabib, however, takes discourse ethics beyond its confines within a rationalist discourse of moral theory. She also challenges the divisions between the public and private that persist within Habermasian discourse ethics. As Benhabib recognizes, discursive practices of opinion and will formation take place in small places close to home. Transforming the discourse of human rights requires us to challenge the gendered divisions between the public and the private that shield those places from processes of reform. As international human rights law has expanded its reach to domains previously labeled as private, its legitimacy to do so has increasingly been questioned—by states and other collectivities. Such questioning, of course, is not new. States have long argued that the pursuit of gender equality is a private, cultural, domestic matter. Feminists have traditionally drawn on the discourse of human rights to challenge such arguments. Difference feminisms, in urging us to remain within the confines of the local, the particular, leave feminist activists without their traditional supports. By drawing on the insights of discourse ethics, and applying those insights to the domain of international human rights law, it is possible to move beyond the polarisation of debate that we see between feminist and cultural critics of international human rights law, on the one hand, and defenders of the discourse of human rights, on the other. A concern with the institutions and processes necessary to build an inclusive society is at the heart of discourse ethics. Seyla Benhabib’s discourse ethics brings us the method of discursive justification and a public sphere that is differentiated, heterogenous and no longer defined by a stark opposition between the public and the private. She takes the re-thinking of universalism much further than liberal thinkers such as Rawls, Nussbaum or Gewirth, situating the self firmly within gender and community. Because discourse ethics starts from a presumption of difference, we are left with greater space for cultural pluralism and for sensitivity to the context of daily struggles for human rights. This openness to difference is attractive to feminism, as is the emphasis on proceduralism and democratic participation. All too often, reforming measures seeking to promote gender equality have remained constrained by a discourse of protection, a paternalism that ignored the voices of those most affected by reform. The negotiation of cultural conflicts is a key test in any attempt to reconcile difference feminism with the universalism and with the discourse of human rights in particular. The dual-track approach to cultural conflicts discussed in this book combines legal legal regulation with an ongoing process of moral–political dialogue. The duality of this approach builds on the internal

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link between human rights and popular sovereignty—a link that Habermas outlines in Between Facts and Norms. The recognition of this link, in itself, opens up new possibilities for a feminist transformation of human rights discourse, as the importance of democratic participation is acknowledged and supported. Within the dual-track approach, legal regulation draws its normative justification from the core moral principles of universal respect and egalitarian reciprocity. These principles define the limits of difference that can be accommodated within any multicultural arrangement. Legal and political recognition of difference is possible and indeed necessary, but recognition must not be such as to deny women the right to transform their cultural legacies, to challenge, contest or opt out of inherited traditions. The dual-track approach seeks to avoid the emergence of gendered forms of citizenship of the form that we have discussed here in Ireland, in India and in Pakistan. These are but a few examples. Many other examples of gendered forms of citizenship can be pointed to and a ‘traffic in women’ continues amongst adherents to the claims of a politics of recognition and demands for multicultural accommodations. As a framework within which conflicting cultural claims can be negotiated, the dual-track approach has much to offer to feminism and to the human rights movement. The dual-track model can also be usefully applied at the level of international law. The reservations dialogue surrounding human rights treaties provides a useful context within which to begin this process. Applying the dualtrack approach to the reservations dialogue highlights the normative conflicts underpinning reservations to human rights treaties, and the core principles at stake in any attempt at regulating reservations. Once a human rights paradigm is brought to bear on the reservations entered by states, we see very quickly that the rhetoric of difference and of self-determination does not go very far. Women’s right to exit and disassociate from discriminatory religious–cultural norms is denied as states appeal to a singular ‘ethnos’ that denies difference and fragmentation within the collectivity. We need, however, to move beyond mere legal regulation. Discourse ethics’ emphasis on dialogue and on democratic participation recognises the importance of creating a sense of belonging and brings with it an impetus to institutional and procedural reforms that ensure greater equality of participation in the dialogic practices of global forums. Creating a sense of belonging, in turn, requires a move towards a cosmopolitan law and a shift away from the particularistic claims of nation-states. To transform and reconstruct human rights thinking and practice will require, to borrow Benhabib’s term, ‘a pluralistically enlightened ethical universalism.’5 For feminists of the global North, it requires a willingness 5 S Benhabib, ‘Cultural Complexity, Moral Interdependence, and the Global Dialogical Community’ in M Nussbaum and J Glover, (eds), Women, Culture and Development (Oxford, Clarendon Press, 1995) 235, 236.

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to ‘turn the gaze back’,6 to engage rather than to exoticise the other. To quote Obiora: 7 Western feminist scholarship cannot avoid the challenge of examining its inscription in particular relations of structural dominance and struggle, its role in the discursive colonization of the material complexities and historical heterogeneity of the lives of Third World women, as well as its complicity in value systems that exacerbate and sustain harsh realities in dependent political economies.

It will require a constant process of questioning and challenging, a balancing of global solidarities with the specificities of local and cultural affinities. Engaging in such a balancing act may require us to draw on insider methodologies and internal traditions of resistance and dissent. If we are to ensure an ongoing dynamic process of challenge and contestation, the universal legitimacy of women’s human rights claims cannot be denied. Feminist human rights activists throughout the world are appealing to the universalistic discourse of human rights. Yet, feminist theory has shifted away from appeals to universal norms. Feminism has always sought to remain rooted in, and connected to, the daily concrete struggles of women’s lives. There is good reason to be suspicious of this growing gap between feminist theory and practice. Feminism within the academy may become increasingly irrelevant to global feminist activism. The disconnection between theory and practice has been at the heart of feminist critiques of liberal Enlightenment thinking. Bridging the gap between theory and practice also requires a return to the politics of distribution. The rise of a politics of recognition has marginalised concerns with class and socio-economic inequalities. Many cultural conflicts find their roots, however, in socio-economic deprivation and distributive injustices. The pursuit of equality requires us to combine respect for cultural diversity with the pursuit of distributive justice. In recent years, feminism’s preoccupation with difference has meant that class politics and questions of economic injustice have been ignored. Yet, at both national and international levels, distributive injustices threaten the pursuit of justice. Extreme poverty persists throughout the world and income inequalities continue to grow in many countries, both rich and poor. Against this background, gender remains a significant factor in poverty and inequality. Anne Orford challenges feminist internationalists to acknowledge the extent to which the first world benefits from and depends upon the exploitation of the third world. As she points out, ‘Those who

6 See: B Cossman, ‘Turning The Gaze Back On Itself: Comparative Law, Feminist Legal Studies, and the Postcolonial Project’ [1997] Utah L Rev 525. 7 LA Obiora, ‘Feminism, Globalization, and Culture: After Beijing’ (1997) 4 Indiana Journal of Global Legal Studies 355, 372–73.

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celebrate the age of globalization “actively forget”’8 the fact of such exploitation’. Liberal theories of rights have too often ignored the gap between facticity and normativity, between women and men’s capacities to pursue the good life. A concern to respect cultural diversity is meaningless unless we can guarantee the capacity to participate on an equal footing in democratic processes. It is not, then, a question of distinguishing between culture and economics or drawing on the axes of gender/culture or economics, but rather recognising that culture and economics can be mutually constitutive.9 In suggesting that feminism reclaims the discourse of human rights, not this book is claiming that human rights discourse has been without its shortcomings. These shortcomings are particularly evident in the inherited traditions of international human rights law. Transforming human rights will require a significant rethinking of both the theory and practice of human rights law. If the universal legitimacy of human rights norms is accepted, we can no longer operate with a state-centred model of law-making. The global dialogical community, to be a truly inclusive cosmopolis, will require a rethinking of the institutions and process of international law. This book is intended as a step in this direction, a step that resituates feminism within the discourse of human rights, properly understood.

8 A Orford, ‘Feminism, Imperialism and the Mission of International Law’ (2002) 71 Nordic Journal of International Law 275, 290. 9 See K Engle, ‘International Human Rights and Feminisms: When Discourses Keep Meeting’ in D Buss and A Manji, (eds), International Law: Modern Feminist Perspectives (Oxford, Hart Publishing, 2005) 47, 66, citing V Nesiah ‘The Ground Beneath her Feet: TWAIL Feminisms’ in A Anghie, et al, (eds) The Third World and International Order: Law, Politics and Globalization (Leiden, M Nijhoff, 2003) 133, 139.

Bibliography ABOU EL FADL, K, Speaking in God’s Name: Islamic Law, Authority and Women (Oxford, Oneworld, 2001). ABU-LUGHOD, L,‘Do Muslim Women Really Need Saving? Anthropological Reflections on Cultural Relativism and its Others’ (2002) 104(3) Am Anthropologist 783. ABU-ODEH, L ,‘Postcolonial Feminism and the Veil’ (1992) 26(4) New England Law Review 1527. ACKERMAN, BA, Social Justice in the Liberal State (New Haven, CT, Yale University Press, 1980). ACKERS, L, ‘Internal Migration and the Negotiation of Citizenship: The Struggle for Reproductive Self-determination in Ireland’ 18(4) Journal of Social Welfare and Family Law 413. ADELMAN, S, ‘The International Labour Code and the Exploitation of Female Workers in Export Processing Zones’ in A PALIWALA and S ADELMAN, (eds), Law and Development in Crises (London, Hans Zell, 1993) 195. AFKHAMI, M, (ed), Faith and Freedom: Women’s Human Rights in the Muslim World (Syracuse, NY, Syracuse University Press, 1995). AHIR, DC, Dr Ambedkar and the Indian Constitution (Delhi, Low Price, 1997). AHMED, AS, Discovering Islam: Making Sense of Muslim History and Society (London, Routledge and Kegan Paul, 1988). AHMED, F, Ethnicity and Politics in Pakistan (Karachi, OUP, 1998). AHMED, I, The Concept of an Islamic State in Pakistan: An Analysis of Ideological Controversies (Lahore, Vanguard, 1991). ALI, SS, A Comparative Study of the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (Peshawar, Shaheen, 1995). ——, ‘Is an Adult Muslim Woman Sui Juris? Some Reflections on the Concept of “Consent in Marriage” Without a Wali (with Particular Reference to the Saima Waheed Case)’ (1996) 3 YIMEL 156. ——, ‘The Conceptual Foundations of Human Rights: A Comparative Perspective’ (1997) 3 European Public Law 261. ——, Gender and Human Rights in Islam and International Law (The Hague, Kluwer, 2000). ALI, SS and JAMIL, B, The United Nations Convention on the Rights of the Child, Islamic Law and Pakistan Legislation: A Comparative Study (Peshawar, Educational Computing Services, 1995). ALI, SS and MULLALLY, S ,’Women’s Rights and Human Rights in Muslim Countries: A Case Study’ in H Hinds, A PHOENIX and J STACEY, (eds), Working Out: New Directions for Women’s Studies (London, Falmer, 1992) 113.

226

Bibliography

ALI SS, and REHMAN, J, Indigenous Peoples and Ethnic Minorities in Pakistan: Constitutional and Legal Perspectives (London, Curzon, 2001). ALI, T, ‘The Colour Khaki’ (2003) 19 New Left Review 5. ALSTON, P, ‘The Unborn Child and Abortion Under the Draft Convention on the Rights of the Child’ (1990) 12 Human Rights Quarterly 156. ——, ‘The Best Interests Principle: Towards a Reconciliation of Culture and Human Rights’ (1994) 8 International Journal of Law and the Family 1. ——, (ed), The Best Interests of the Child: Reconciling Culture and Human Rights (Oxford, Clarendon Press, 1994). ——, Promoting Human Rights through the Bills of Rights (Oxford, Clarendon Press, 1997). ——, ‘Making Space for New Human Rights: The Case of the Right to Development’ (1998) 1 Human Rights Yearbook 3. AN-NAIM, A, ‘The Rights of Women and International Law in the Muslim Context’ (1987) 9 Whittier Law Review 491. ——, ‘Human Rights in the Muslim World: Socio-political Conditions and Scriptural Imperatives, A Preliminary Inquiry’ (1990) 3 Harvard Human Rights Journal 13. ——, Towards an Islamic Reformation: Civil Liberties, Human Rights, and International Law (Syracuse, NY, Syracuse University Press, 1990). ——, Human Rights in Cross-cultural Perspectives: A Quest for Consensus (Philadelphia, PA, University of Pennsylvania Press, 1992). ANDERSON, M, ‘Islamic Law and the Colonial Encounter in British India’ in J CONNERS and C MILLAT, (eds), Islamic Family Law (London, Graham & Trotman, 1990) 205. ARNAUD, AJ and KINGDOM, E, Women’s Rights and the Rights of Man: Enlightenment Rights and Revolution Series (Aberdeen, Aberdeen University Press, 1990). ASHCROFT, B, et al, (eds), The Post-colonial Studies Reader (London, Routledge, 1994). ASKIN, KD and KOENIG, DM, (eds), Women and International Human Rights Law, vol 3 (New York, NY, Transnational Press, 1999). BAEHR, AR, ‘Toward a New Feminist Liberalism: Okin, Rawls, and Habermas’ (1996) 11(1) Hypatia 49. BAIER, A, ‘Hume, the Women’s Moral Theorist’ in E KITTAY and D MEYERS, (eds), Women and Moral Theory (Totowa, NJ, Rowman & Littlefield, 1987) 37. ——, ‘The Need for More than Justice’ in V Held, Justice and Care: Essential Readings in Feminist Ethics (Boulder, CO, Westview, 1995) 47. BAKHURST D and SYPNOWICH, C, (eds), The Social Self (London, Sage, 1995). BANDA, F, Women, Law and Human Rights (Oxford, Hart Publishing, 2005). BARNARD, C, ‘Gender Equality in the EU: A Balance Sheet’ in P ALSTON, (ed), The EU and Human Rights (Oxford, OUP, 2000) 215. BARTKY, SL, ‘Sympathy and Solidarity: On a Tightrope with Scheler’ in DT MEYERS, (ed), Feminists Rethink the Self (Boulder, Westview, 1997) 177. BARTLETT, K, ‘Feminist Legal Methods’ (1990) 103 Harv L Rev 829. BARTON, TD, ‘Reclaiming Law Talk, Review of MA Glendon, Rights Talk: The Impovershment of Political Discourse’ (1993) 81 Calif L Rev 803. BAYEFSKY, A, ‘The Human Rights Committee and the Case of Sandra Lovelace’ (1982) 20 Canadian Yearbook of International Law 244.

Bibliography

227

——, ‘Cultural Sovereignty, Relativism and International Human Rights: New Excuses for Old Strategies’ (1996) 9(1) Ratio Juris 42. BELL, A and PARCHOMOVSKY, G, ‘The Integration Game’ (2000) 100(8) Columbia Law Review 1965. BENHABIB, S, ‘The Generalised and the Concrete Other: The Kohlberg-Gilligan Controversy and Feminist Theory’ in S BENHABIB and D CORNELL, (eds), Feminism as Critique: On the Politics of Gender (Minneapolis, MN, University of Minnesota Press, 1986) 77 ——, Critique, Norm, and Utopia: A Study of the Foundations of Critical Theory (New York, NY, Columbia University Press, 1986). ——, ‘Feminism as Critique on the Politics of Gender’ in S BENHABIB and D CORNELL, (eds), Feminist Perspectives (Minneapolis, MN, University of Minnesota Press, 1987). ——, Situating the Self: Gender, Community and Postmodernism in Contemporary Ethics (Cambridge, Polity Press, 1992). ——, ‘Deliberative Rationality and Models of Democratic Legitimacy’ (1994) 1(1) Constellations 26. ——, ‘Beyond East and West—Response’ (1995) 23(4) Political Theory 674. ——, ‘Cultural Complexity, Moral Interdependence, and the Global Dialogical Community’ in M NUSSBAUM and J GLOVER, (eds), Women, Culture and Development (Oxford, Clarendon Press, 1995) 235. ——, ‘The Reluctant Modernism of Hannah Arendt’ Modernity and Political Thought (London, Sage, 1996) 10. ——, Democracy and Difference Contesting the Boundaries of the Political (Princeton, NJ, Princeton University Press, 1996). ——, ‘Of Guests, Aliens, and Citizens: Rereading Kant’s Cosmopolitan Right’ in W REHG and J BOHMAN, (eds), Pluralism and the Pragmatic Turn: Transformations of Critical Theory (Cambridge, MA, MIT Press, 2001) 361. ——, Transformations of Citizenship: Dilemmas of the Nation–States in the Global Era: The Spinoza Lectures (Amsterdam, Van Gorcum, 2001). ——, The Claims of Culture: Equality and Diversity in the Global Era (Princeton, NJ, Princeton University Press, 2002). ——, ‘Unholy Wars’ (2002) 9(1) Constellations 34. ——, The Rights of Others: Aliens, Residents and Citizens (Cambridge, CUP, 2004). BENHABIB, S and DALLMAYR, FR, (eds), The Communicative Ethics Controversy (Cambridge, MA, MIT Press, 1990). BENNETT, D, (ed), Multicultural States: Rethinking Difference and Identity (London, Routledge, 1998). BENTHAM, J, ‘Of the Influence of Time and Place in Matters of Legislation’ in J BOWRING, (ed), Works (Edinburgh, William Tait, 1838) 173. BERMAN, N, ‘Aftershocks: Exoticisation, Normalization, and the Hermeneutic Compulsion’ [1997] Utah Law Review 86. BEVERIDGE, F, ‘Feminist Perspectives in International Economic Law’ in D BUSS and A MANJI, (eds), International Law: Modern Feminist Perspectives (Oxford, Hart Publishing, 2005) 173. BHABHA, HK, (ed), Nations and Narration (London, Routledge and Kegan Paul, 1990). ——, The Location of Culture (London, Routledge, 1994).

228

Bibliography

——, ‘The Right to Community? Review of A Gewirth, The Community of Rights’ (1997) 64 University of Chicago Law Review 1117. BHASIN, K, MENON, R and KHAN, NS, Against All Odds: Essays on Women, Religion and Development from India and Pakistan (New Delhi, Kali for Women, 1994). BIELEFELDT, H, ‘Muslim Voices in the Human Rights Debate’ (1995) 17 Human Rights Quarterly 587. BINCHY, W, ‘Pluralism, Liberty and the Right to Life’ in A WHELAN, (ed), Law and Liberty in Ireland (Dublin, Oak Tree, 1993) 132. BINION, G, ‘Human Rights: A Feminist Perspective’ (1995) 17 Human Rights Quarterly 509. BLUM, L, ‘Care’ in LC BACKER and CB BECKER, (eds), Encyclopaedia of Ethics (London, Garland, 1992) 125. BOHMAN, J and LUTZ-BACHMANN, M, (eds), Perpetual Peace: Essays on Kant’s Cosmopolitan Ideal (Cambridge, MA, MIT Press, 1997). BOLAND, E, A Kind of Scar (Dublin, Attic, 1989). BOLGER, M and KIMBER, C, Sex Discrimination Law (Dublin, Roundhall Sweet & Maxwell, 2000). BOON, K, ‘Rape and Forced Pregnancy Under the ICC Statute: Human Dignity, Autonomy, and Consent’ (2001) 32 Colum Human Rights L Rev 625. BORRADORI, G, Philosophy in a Time of Terror: Dialogues with Jürgen Habermas and Jacques Derrida (Chicago, IL, University of Chicago Press, 2003). BOYLE, J, (ed), Critical Legal Studies (Aldershot, Dartmouth, 1994). ——, ‘The Place of Religion in the Practical Reasoning of Individuals and Groups’ [1998] American Journal of Jurisprudence 1. BOYLE, K and SHEEN, J, (eds), Freedom of Religion and Belief: A World Report (London, Routledge, 1997). BRADLEY, A and VALIULIS, MG, (eds), Gender and Sexuality in Modern Ireland (Amherst, MA, University of Massachusetts Press, 1997). BREMS, E, ‘Enemies or Allies—Feminism and Cultural Relativism as Dissident Voices in Human Rights Discourse’ (1997) 19(1) Human Rights Quarterly 136. BROWNE, N, ‘Church and State in Modern Ireland’ in P TWOMEY and T MURPHY, (eds), Ireland’s Evolving Constitution 1937–1997 (Oxford, Hart Publishing, 1998) 41. BROYDE, M, ‘Epilogue: Human Rights and Human Duties in the Jewish Tradition’ in M BROYDE and J WHITE, (eds), Human Rights in Judaism: Cultural, Religious and Political Perspectives (Northvale, NJ, Jason Aronson, 1998) 273. BUNCH, C, ‘Transforming Human Rights from a Feminist Perspective’ in J PERTERS and A WOLPER, (eds), Women’s Rights Human Rights: International Feminist Perspectives (New York, NY, Routledge, 1995) 11. BUNTING, A, ‘Theorizing Women’s Cultural Diversity in Feminist International Human Rights Strategies’ (1993) 20(1) Journal of Law and Society 6. BUSS, D, ‘Racing Populations, Sexing Environments: The Challenges of a Feminist Politics in International Law’ (2000) 20(4) Legal Studies 463. ——, ‘Austerlitz and International Law: A Feminist Reading’ in D BUSS and A MANJII, (eds), International Law: Modern Feminist Perspectives (Oxford, Hart Publishing, 2005) 87. BUSS, D and HERMAN, D, Globalizing Family Values: The Christian Right in International Politics (Minneapolis, MN, University of Minnesota Press, 2003).

Bibliography

229

BUSS, D and MANJI, A, (eds), International Law: Modern Feminist Perspectives (Oxford, Hart Publishing, 2005). BUTLER, J, ‘Contingent Foundations: Feminism and the Question of “Postmodernism”’ in J BUTLER and JW SCOTT, (eds), Feminists Theorize the Political (New York, Routledge,1992) 3. BYRNE, A and LEONARD, M, Women in Irish Society: A Sociological Reader (Belfast, Beyond the Pale Publications, 1997). BYRNES, A, ‘Women, Feminism and International Human Rights Law: Methodological Myopia, Fundamental Flaws or Meaningful Marginalisation?’ (1992) 12 Australian Yearbook of International Law 205. CAIN, P, ‘Feminist Jurisprudence: Grounding the Theories’ in K BARTLETT and R KENNEDY, (eds), Feminist Legal Theory: Readings in Law and Gender (Boulder, CO, Westview, 1991) 263. CARD, C, (ed), On Feminist Ethics and Politics (Lawrence, KS, University of Kansas Press, 1999). CARLSON, DG, CORNELL, D and ROSENFELD, M, (eds), Deconstruction and the Possibility of Justice (London, Routledge, 1992). CERNA, CM and WALLACE, JC, ‘Women and Culture: Introduction’ in DK Askin and DM Koenig, Women and International Human Rights Law, vol 3 (New York, NY, Transnational Press, 1999) 623. CHAKRABARTY, D, ‘Modernity and Ethnicity in India’ in D BENNETT, (ed), Multicultural States: Rethinking Difference and Identity (London, Routledge, 1998) 41. CHANDHRA, S, Enslaved Daughters: Colonialism, Law and Women’s Rights (New Delhi, OUP, 1998). CHANDRA, B, Communalism in Modern India (Delhi, Vani Educational Books and Vikas Publishing House, 1984). CHARLESWORTH, H, ‘The Mid-life Crisis of the Universal Declaration of Human Rights’ (1998) 55 Wash and Lee L Rev 781. ——, ‘The Challenges of Human Rights Law for Religious Traditions’ in MW JANIS and C EVANS, (eds), Religion and International Law (The Hague, Martinus Nijhoff, 1999) 401. ——, ‘Feminist Methods in International Law’ (1999) 93 Am J of Int’l Law 379. CHARLESWORTH, H and CHINKIN, C, The Boundaries of International Law (Manchester, MUP, 2000). CHARLESWORTH, H, CHINKIN, C and WRIGHT, S, ‘Feminist Approaches to International Law’ (1991) 85 American Journal of International Law 613. ——, ‘Feminist Approaches to International Law: Reflections from Another Century’ in D BUSS and A MANJI, (eds), International Law: Modern Feminist Perspectives (Oxford, Hart Publishing, 2005) 15. CHATTERJI, P, ‘The Nationalist Resolution of the Women’s Question’ in S KUMKUM and SUDESH P, (eds), Recasting Women Essays in Colonial History (Delhi, Kali for Women, 1989) 233. CHATTERJI, P, Secular Values for Secular India (Delhi, Manohar, 1995). CHAUDHRY, GW, ‘Bangladesh: Why it Happened’ (1972) 48(1) International Affairs 242. CHAUDHURI, M, Indian Women’s Movement: Reform and Revival (New Delhi, Radiant, 1993).

230

Bibliography

CHINKIN, C, ‘Reservations and Objections to the Convention on the Elimination of all Forms of Discrimination Against Women’ in JP Gardner, Human Rights as General Norms and a State’s Right to Opt Out (London, BIICL, 1996) 64. CHAUDHRY, GW, Constitutional Development in Pakistan, 2nd edn, (London, Lowe & Brydone, 1969). CHUBB, B, The Politics of the Irish Constitution (Dublin, Institute of Public Administration, 1991). CLARKE, DM, Church and State: Essays in Political Philosophy (Cork, Cork University Press, 1984). CLARKE, J, Cochrane, A and Smart, C, Ideologies of Welfare from Dreams to Disillusion (London, Hutchinson, 1987). COBBAH, JAM, ‘African Values and the Human Rights Debate: An African Perspective’ (1987) 9 Human Rights Quarterly 309. CONAGHAN, J, ‘Enhancing Civil Remedies for (Sexual) Harassment: §3 of the Protection from Harassment Act 1997’ (1999) 7 Feminist Legal Studies 203. CONNOLLY, A, ‘The Constitution’ in A CONNOLLY, (ed), Gender and the Law in Ireland (Dublin, Oak Tree, 1993) 4. ——, (ed), Gender and the Law in Ireland (Dublin, Oaktree, 1993). CONNOLLY, L, The Irish Women’s Movement: From Revolution to Devolution (London, Palgrave, 2002). CONNORS, J, ‘The Women’s Convention in the Muslim World’ in JP GARDNER, (ed), Human Rights as General Norms and a State’s Right to Opt Out (London, BIICL, 1996) 85. COOK, RJ, ‘Reservations to the Convention on the Elimination of all Forms of Discrimination Against Women’ (1990) 30 Virginia Journal of International Law 643. ——, (ed), Human Rights of Women National and International Perspectives: Pennsylvania Studies in Human Rights (Philadelphia, PA, University of Pennsylvania Press, 1994). COOK, RJ and FATHALLA, MF, ‘Advancing Reproductive Rights Beyond Cairo and Beijing’ in KD ASKIN and DM KOENIG, Women and International Human Rights Law, vol 3 (New York, NY, Transnational Press 1999) 73. CORNELL, D, Beyond Accommodation: Ethical Feminism, Deconstruction, and the Law (London, Routledge, 1991). ——, ‘The Philosophy of the Limit: Systems Theory and Feminist Legal Reform’ in M ROSENFELD, DG CARLSON and D CORNELL, (eds), Deconstruction and the Possibility of Justice (London, Routledge, 1992) 68. ——, The Philosophy of the Limit (London, Routledge, 1992). ——, Transformations: Recollective Imagination and Sexual Difference (New York, NY, Routledge, 1993). ——, ‘Feminism, Deconstruction and the Law’ (1995) 73 Radical Philosophy 23. ——, The Imaginary Domain: Abortion, Pornography and Sexual Harassment (New York, NY, Routledge, 1995). ——, At the Heart of Freedom: Feminism, Sex and Equality (Princeton, NJ, Princeton University Press, 1998). ——, Just Cause: Freedom, Identity and Rights (New York, NY, Rowman & Littlefield, 2000). CORNELL, D, ROSENFELD, M and CARLSON, DG, (eds), Hegel and Legal Theory (London, Routledge, 1991).

Bibliography

231

COSSMAN, B, ‘Turning the Gaze Back on Itself: Comparative Law, Feminist Legal Studies, and the Postcolonial Project’ [1997] Utah L Rev 525. COSSMAN, B and KAPUR, R, Secularism’s Last Sigh? Hindutva and the (Mis)Rule of Law (New Delhi, OUP, 1999). COULTER, C, The Hidden Tradition: Feminism, Women and Nationalism (Cork, Cork University Press, 1993). ——, ‘“Hello Divorce, Good-bye Daddy”: Women, Gender and the Divorce Debate’ in A BRADLEY and MG VALIULIS, (eds), Gender and Sexuality in Modern Ireland (Amherst, MA, University of Massachusetts Press, 1997) 275. COUTRIGHT, P and HARLAN, L, From the Margins of Hindu Marriage Essays on Gender Religion and Culture (Oxford, OUP, 1995). CRENSHAW, K, ‘A Black Feminist Critique of Anti-discrimination Law and Politics’ in D Kairys, The Politics of Law, 2nd edn, (New York, NY, Pantheon, 1990) 195. CROWLEY, E, ‘Making a Difference? Female Employment and Multinationals in the Republic of Ireland’ in A BYRNE and M LEONARD, (eds), Women and Irish Society: A Sociological Reader (Belfast, Beyond the Pale Publications, 1997) 81. DALY, M, ‘Indian Sati: The Ultimate Consummation of Marriage’ in H Cullen, Gyn/ Ecology: The Metaethics of Radical Feminism (Boston, MA, Beacon, 1978) 113. DALY, ME, ‘“Oh, Kathleen Ni Houlihan, Your Way’s a Thorny Way!”: The Condition of Women in Twentieth-century Ireland’ in A BRADLEY and MG VALIULIS, (eds), Gender and Sexuality in Modern Ireland (Amherst, MA, University of Massachusetts Press, 1997) 102. DAS, V, Critical Events (Delhi, OUP, 1992). ——, ‘Cultural Rights and the Definition of Community’ in O MENDELSOHN and U BAXI, (eds), The Rights of Subordinated Peoples (Delhi, OUP, 1994) 117. DAVIS, MC, ‘Constitutionalism and Political Culture: The Debate Over Human Rights and Asian Values’ (1998) 11(109) Harvard Human Rights Journal 1. DAY O’CONNOR, S, ‘Religious Freedom: America’s Quest for Principles’ (1997) 48(1) Northern Ireland Legal Quarterly 1. DE BURCA, G, ‘The Drafting of the European Union Charter of Fundamental Rights’ (2001) 26 European Law Review 126. DEFEIS, EF, ‘Human Rights and the European Union: Who Decides? Possible Conflicts Between the European Court of Justice and the European Court of Human Rights’ (2001) 19 Dick J Int’l L 301. DELANTY, G, ‘Habermas and Post-national Identity: Theoretical Perspectives on the Conflict in Northern Ireland’ (1996) 11 Irish Political Studies 20. DERRETT, DJ, Religion Law and the State in India (New York, NY, Free Press, 1968). DEVLIN, RF, ‘Law, Postmodernism and Resistance: Rethinking the Significance of the Irish Hunger Strike’ (1994) 14 Windsor Yearbook of Access to Justice 3. DONNELLY, J, ‘Cultural Relativism and Universal Human Rights’ (1984) 6 Human Rights Quarterly 400. ——, The Concept of Human Rights, Croom Helm International Series in Social and Political Thought (London, Croom Helm, 1985). ——, Universal Human Rights in Theory and Practice (Ithaca, NY, Cornell University Press, 1989). DOOLEY, D, ‘Gendered Citizenship in the Irish Constitution’ in P TWOMEY and T MURPHY, (eds), Ireland’s Evolving Constitution 1937–1997 (Oxford, Hart Publishing, 1998) 121.

232

Bibliography

DUNCAN, W, ‘Abortion, Divorce and the Debate About Liberty’ in A WHELAN, Law and Liberty in Ireland (Dublin, Oak Tree, 1993) 120. DWORKIN, R, ‘Freedom’s Law: The Moral Reading of the American Constitution’ in R DWORKIN, (ed), II Speech Conscience and Sex (Cambridge, MA, Harvard University Press, 1996). EAGLETON, T, The Illusions of Postmodernism (Oxford, Blackwell, 1996). ENGINEER, AA, The Shah Bano Controversy (Hyderabad, Orient Longman, 1985). ——, Communalism in India (New Delhi, Vikas, 1996). ENGLE, K, ‘Female Subjects of Public International Law: Human Rights and the Exotic Other Female’ (1992) 26 New England Law Review 1509. ——, ‘After the Collapse of the Public/Private Distinction: Strategizing Women’s Rights’ in DG DALLMEYER, (ed), Reconceiving Reality: Women and International Law (Washington DC, American Society of International Law, 1993) 143. ——, ‘From Scepticism to Embrace: Human Rights and the American Anthropological Association from 1947–1999’ (2001) 23 Human Rights Quarterly 536. ——, ‘International Human Rights and Feminisms: When Discourses Keep Meeting’ in D BUSS and A MANJI, (eds), International Law: Modern Feminist Perspectives (Oxford, Hart Publishing, 2005) 47. ERIKSSON, MK, ‘Abortion and Reproductive Health: Making International Law More Responsive to Women’s Needs’ in KD ASKIN and DM KOENIG, (eds), Women and International Human Rights Law, vol 3 (New York, NY, Transnational Press, 2000) 3. ESPOSITO, JL, ‘Muslim Family Law Reform in Pakistan’ (1997) 4(2) Journal of Malaysian and Comparative Law 293. EXDELL, J, ‘Feminism, Fundamentalism, and Liberal Legitimacy’ (1994) 24(3) Canadian Journal of Philosophy 441. FANNING, R, ‘Mr De Valera Drafts a Constitution’ in B FARRELL, (ed), De Valera’s Constitution and Ours (Dublin, Gill & Macmillan, 1988) 33. FARRELL, B, (ed), De Valera’s Constitution and Ours: Thomas Davis Lectures (Dublin, Gill & Macmillan, 1988). FESTENSTEIN, M, Pragmatism and Political Theory (London, Polity Press, 1997). ——, ‘New Worlds for Old: Kymlicka, Cultural Identity and Liberal Nationalism’ (1998) 4 Acta Politica 362. FINEMAN, M, ‘Abortion and Divorce in Western Law: American Failures, European Challenges’ (1988) 55 Chicago Law Review 1431. ——, At the Boundaries of Law: Feminism and Legal Theory (New York, NY, Routledge, 1991). ——, The Illusion of Equality: The Rhetoric and Reality of Divorce Reform (Chicago, IL, University of Chicago Press, 1991). ——, ‘Feminist Theory and Law’ (1995) 18 Harvard Journal of Law and Public Policy 349. ——, ‘Mothers in Law: Feminist Theory and the Legal Regulation of Motherhood’ (New York, NY, Columbia University Press, 1995). ——, The Neutered Mother, the Sexual Family, and Other Twentieth Century Tragedies (New York, NY, Routledge, 1995). ——, ‘Cracking the Foundational Myths: Independence, Autonomy, and Self-sufficiency’ (2000) 8 American University Journal of Gender, Social Policy and the Law 13.

Bibliography

233

——, ‘The Family in Civil Society’ (2000) 75 Chicago-Kent Law Review 531. ——, ‘Contract and Care’ (2001) 76 Chicago-Kent Law Review 1403. ——, ‘Taking Children’s Interests Seriously’ (2002) XLIV NOMOS 234. ——, The Autonomy Myth: A Theory of Dependency (New York, NY, New Press, 2003). FINNIS, J, ‘Natural Law and the Ethics of Discourse’ (1998) American Journal of Jurisprudence 53. FITZPATRICK, P and HUNT, A, (ed), Critical Legal Studies (Oxford, Blackwell, 1987). FLAX, J, ‘Thinking Fragments Psychoanalysis, Feminism, and Postmodernism in the Contemporary West’ (Berkeley, CA, University of California Press, 1990). FLETCHER, R, ‘Post-colonial Fragments: Representations of Abortion in Irish Law and Politics’ (2001) 28(4) Journal of Law and Society 568. FLYNN, L, ‘The Missing Body of Mary McGee: The Constitution of Woman in Irish Constitutional Adjudication’ (1993) 2(2) Journal of Gender Studies 238. ——, ‘Ireland’ in CA GEARTY, (ed), European Civil Liberties and the European Convention on Human Rights (The Hague, Kluwer Law International, 1997). ——, ‘To Be an Irish Man: Constructions of Masculinity in the Constitution’ in P TWOMEY and T MURPHY, (eds), Ireland’s Evolving Constitution 1937–1997 (Oxford, Hart Publishing, 1998) 135. FRANCK, TM, ‘The Emerging Right to Democratic Governance’ (1992) 86 American Journal of International Law 46. ——, ‘Clan and Superclan: Loyalty, Identity and Community in Law and Practice’ (1996) 90 American Journal of International Law 359. ——, ‘Tribe, Nation, World: Self-identification in the Evolving International System’ (1997) 11 Ethics and International Affairs 151. FRANKENBERG, G, ‘Why Care? The Trouble with Social Rights’ (1996) 17 Cardozo Law Review 1365. ——, ‘Stranger than Paradise: Identity and Politics in Comparative Law’ [1997] Utah L Rev 259. FRASER, N, Unruly Practices Power, Discourse and Gender in Contemporary Social Theory (Cambridge, Polity Press, 1989). ——, ‘After the Family Wage–Gender Equity and the Welfare-state’ (1994) 22(4) Political Theory 591. ——, ‘From Redistribution to Recognition—Dilemmas of Justice in a Post-socialist Age’ (1995) 212 New Left Review 68. ——, ‘A Genealogy of Dependency—Tracing a Keyword of the US Welfare State Reply’ (1996) 21(2) Signs 531. ——, ‘A Rejoinder to Young Iris’ (1997) 223 New Left Review 126. ——, Justice Interrupts Critical Reflections on the ‘Postsocialist’ Condition (London, Routledge, 1997). FRASER, N and GORDON, L, ‘A Genealogy of Dependency—Tracing a Keyword of the United States Welfare State’ (1994) 19(2) Signs 309. FRAZER, E and LACEY, N, The Politics of Community: A Feminist Critique of the Liberal-communitarian Debate (New York, NY, Harvester Wheatsheaf, 1993). FREEDMAN, V, Cities of David: The Lives of David Norris (Dublin, Basement, 1995). FRESHMAN, C, ‘Were Patricia Williams and Ronald Dworkin Separated at Birth’ (1995) 95 Columbia Law Review 15681.

234

Bibliography

FRUG, MJ, ‘A Postmodern Feminist Legal Manifesto (an Unfinished Draft)’ (1992) 105 Harvard Law Review 1045. ——, Postmodern Legal Feminism (London, Routledge, 1992). FUSS, D, Essentially Speaking: Feminism, Nature and Difference (New York, NY, Routledge, 1989). GALANTER, M, Law and Society in Modern India (Delhi, OUP, 1992). GALLAGHER, A, ‘Ending the Marginalization—Strategies for Incorporating Women into the United Nations Human Rights System’ (1997) 19(2) Human Rights Quarterly 283. GALLIGAN, Y, Women and Politics in Contemporary Ireland: From the Margins to the Mainstream (London, Pinter, 1998). GARDNER, JP, (ed), Human Rights as General Norms and a State’s Right to Opt Out: Reservations and Objections to Human Rights Conventions, Human Rights Series (London, British Institute of International and Comparative Law, 1996). GEARTY, C and TOMKINS, A, (ed), Understanding Human Rights (London, Mansell, 1996). GERAS, N, Marx and Human Nature: Refutation of a Legend (London, New Left, 1983). ——, Solidarity in the Conversation of Humankind the Ungroundable Liberalism of Richard Rorty (London, Verso, 1995). ——, The Contract of Mutual Indifference Political Philosophy After the Holocaust (London, Verso, 1998). GEWIRTH, A, ‘Must One Play the Moral Language Game?’ (1970) 7 American Philosophical Quarterly 107. ——, Reason and Morality (Chicago, IL, University of Chicago Press, 1978). ——, Human Rights Essays on Justification and Applications (Chicago, IL, University of Chicago Press, 1982). ——, ‘Ethical Universalism and Particularism’ (1988) LXXXV(6) Journal of Philosophy 283. ——, ‘Human Rights and Conceptions of the Self’ (1988) 18 Philosophia (Israel) 129. ——, ‘A Political-theory of Rights, by A Ingram’ (1995) 89(3) American Political Science Review 747. ——, The Community of Rights (Chicago, IL, University of Chicago Press, 1996). GILLIGAN, C, In a Different Voice: Psychological Theory and Women’s Development (Cambridge, MA, Harvard University Press, 1982). ——, ‘Remapping the Moral Domain: New Images of the Self in Relationship’ in M SOSNA, DE WELLBERY and TC HELLER, (eds), Reconstructing Individualism: Autonomy, Individuality, and the Self in Western Thought (Stanford, CA, Stanford University Press, 1986) 237. ——, The Birth of Pleasure (New York, NY, Knopf, 2002). GLENDON, MA, Abortion and Divorce in Western Law (Cambridge, MA, Harvard University Press, 1987). ——, Rights Talk: The Impoverishment of Legal Discourse (New York, NY, Macmillan, 1991). ——, ‘Law, Communities, and the Religious Freedom Language of the Constitution’ (1992) 60 Geo Wash L Rev 672. ——, ‘Foundations of Human Rights: The Unfinished Business’ [1999] American Journal of Jurisprudence 1.

Bibliography

235

GRAY, B and RYAN, L, ‘(Dis)Locating “Woman” and Women in Representations of Irish Nationality’ in A BYRNE and M LEONARD, (eds), Women in Irish Society: A Sociological Reader (Belfast, Beyond the Pale Publications, 1997) 517. GUNNING, IR, ‘Arrogant Perception, World-travelling and Multicultural Feminism: The Case of Female Genital Surgeries’ (1992) 23 Colum Human Rights L Rev 189. HABERMAS, J, Legitimation Crisis (Boston, MA, Beacon, 1975). ——, (ed), Knowledge and Human Interests, 2nd edn, (London, Heinemann, HEB Paperbacks, 1978). ——, The Philosophical Discourse of Modernity Twelve Lectures (Cambridge, Polity Press, 1987). ——, The New Conservatism Cultural Criticism and the Historians’ Debate (Cambridge, Polity Press, 1989). ——, ‘Three Normative Models of Democracy’ (1994) 1(1) Constellations 1. ——, ‘On the Internal Relation Between the Rule of Law and Democracy’ (1995) 3(1) European Journal of Philosophy 12. ——, ‘Multiculturalism and the Liberal State’ (1995) 47(5) Stanford Law Review 849. ——, ‘Reply to Symposium Participants, Benjamin Cardozo School of Law’ (1996) 17 Cardozo Law Review 1477. ——, Between Facts and Norms Contribution to a Discourse Theory of Law and Democracy: Studies in Contemporary German Social Thought (Cambridge, MA, MIT Press, 1996). ——, ‘Learning By Disaster? A Diagnostic Look Back on the Short 20th Century’ (1998) 5(3) Constellations 307. ——, On the Pragmatics of Communication (Cambridge, MA, MIT Press, 1998). ——, The Inclusion of the Other: Studies in Political Theory (Cambridge, MA, MIT Press, 1998). ——, Postnational Constellation: Political Essays (Cambridge, Polity Press, 2001). ——, ‘Interpreting the Fall of a Monument’ (2003) 4(7) German Law Journal 701. HABERMAS, J, HOHENGARTEN, WM, (tr), Postmetaphysical Thinking Philosophical Essays (Cambridge, Polity Press, 1992). HABERMAS, J and LENHARDT, C, WEBER, NS, (tr), Moral Consciousness and Communicative Action (Cambridge, Polity Press, 1990). HABERMAS, J and MCCARTHY, T, The Critical Theory of Juergen Habermas (Cambridge, Polity Press, 1984). HABERMAS, J, MCCARTHY, T, (tr), Legitimation Crisis (Cambridge, Polity Press, 1988). HABERMAS, J, NICLOSEN, SW, (tr), ‘Struggles for Recognition in the Democratic Constitutional State’ in A GUTMANN, (ed), Multiculturalism: Examining the Politics of Recognition (Princeton, NJ, Princeton University Press, 1994) 107. HAMPSON, F, Reservations to Human Rights Treaties: Final Working Paper, Subcommission on the Promotion and Protection of Human Rights, 56th session, E/CN.4/Sub.2/2004/42 (2004). HARDING, S, The Science Question in Feminism (Milton Keynes, Open University Press, 1986). —— ‘The Curious Coincidence of Feminine and African Moralities: Challenges for Feminist Theory’ in E KITTAY and D MEYERS, (eds), Women and Moral Theory (Savage, Md, Rowman & Littlefield, 1987) 296.

236

Bibliography

——, (ed), Feminism and Methodology Social Science Issues (Bloomington, IN, Indiana University Press, 1987). ——, Whose Science? Whose Knowledge? Thinking from Women’s Lives (Buckingham, Open University Press, 1991). HARDWIG, J, ‘Should Women Think in Terms of Rights?’ in C SUNSTEIN, (ed), Feminism and Political Theory (Chicago, IL, Chicago University Press, 1990) 53. HONGJU KOH, H and SLYE, RC, Deliberative Democracy and Human Rights (New Haven, CT, Yale University Press, 1999). HARVEY, C and LIVINGSTONE, S, ‘Human Rights and the Northern Ireland Peace Process’ [1999] European Human Rights Law Review 162. HARVEY, C, (ed), Human Rights, Equality, and Democratic Renewal in Northern Ireland (Oxford, Hart Publishing, 2001). HASAN, M, (ed), Inventing Boundaries: Gender, Politics, and the Partition of India (New Delhi, OUP, 2000). HASAN, Z, ‘Minority Identity, State Policy and the Political Process’ in Z HASAN, (ed), Forming Identities: Gender, Communities and the State in India (Boulder, CO, Westview, 1994) 59. HAWLEY, JS, Sati: The Blessing and the Curse, The Burning of Wives in India (New York, NY, OUP, 1994). HAYDAR, A, ‘From the Anglo-Mohammedan Law to the Shariah: The Pakistan Experiment’ (1987) X(4) Journal of South Asian and Middle Eastern Studies 33. HEATH, J, ‘Habermas—A Critical Introduction by W Outhwaite’ (1996) 26(4) Philosophy of the Social Sciences 567. HELD, V, ‘Feminism and Moral Theory’ in E KITTAY and D MEYERS, (eds), Women and Moral Theory (Savage, MD, Rowman & Littlefield, 1987) 111. ——, (ed), Justice and Care Essential Readings in Feminist Ethics (Boulder, CO, Westview, 1995). HELLER, TC, SOSNA, M and WELLBERY, DE, (eds), Reconstructing Individualism Autonomy, Individuality, and the Self in Western Thought (Stanford, CA, Stanford University Press, 1986. HESKETH, T, The Second Partitioning of Ireland: The Abortion Referendum of 1983 (Dun Laoighre, Brandsma, 1990). HEVENER, NK, ‘An Analysis of Gender Based Treaty Law: Contemporary Developments in Historical Perspective’ (1985) 7 Human Rights Quarterly 70. HIGGINS, TE, ‘Reviving the Public/Private Distinction in Feminist Theorising’ (2000) 75 Chicago-Kent L Rev 847. HIRSCHMANN, NJ, ‘Western Feminism, Eastern Veiling, and the Question of Free Agency’ (1998) 5(3) Constellations 346. HOGAN, G, ‘Law, Liberty and the Abortion Controversy’ in A WHELAN, (ed), Law and Liberty in Ireland (Dublin, Oak Tree, 1993) 113. HOLMES, D and HOLMES, M, (eds), Ireland and India: Connections, Comparisons and Contrasts (Dublin, Folens, 1970). HORN, F, Reservations and Interpretative Declarations to Multilateral Treaties (Amsterdam, North-Holland, 1988). HOSKYNS, C, Integrating Gender Women, Law and Politics in the European Union (London, Verso, 1996). HASSMANN, H, ‘Multiculturalism, Human Rights and Cultural Relativism: Canadian Civic Leaders Discuss, Women’s Rights and Gay and Lesbian Rights’ (2000) 18(2) Netherlands Quarterly of Human Rights 493.

Bibliography

237

HUTCHINSON, AC, (ed), Critical Legal Studies (Totowa, Rowman & Littlefield, 1989). INGRAM, A, A Political Theory of Rights (Oxford, Clarendon Press, 1994). JACKSON, E, ‘Catherine MacKinnon and Feminist Jurisprudence: A Critical Appraisal’ [1992] Journal of Law and Society 195. JACKSON, N, ‘Family Law: Fertility and Parenthood’ in A CONNOLLY, (ed), Gender and the Law in Ireland (Dublin, Oak Tree, 1993) 109. JAGGAR, AM, Feminist Politics and Human Nature (Totowa, Rowman & Allanheld, 1983). JAHAN, R, Pakistan: A Failure in National Integration (New York, NY, Columbia University Press, 1972). JAHANGIR, A and JILANI, H, The Hudood Ordinances: A Divine Sanction? (Lahore, Rhotas, 1990). JALAL, A, The Sole Spokesman: Jinnah, The Muslim League and the Demand for Pakistan (Lahore, Sange-Meel, 1992). JAMIL, B and ALI, SS, The United Nations Convention on the Rights of the Child, Islamic Law and Pakistan Legislation (Peshawar, Shaheen, 1994). JOHN, ME, ‘Family Law: The Communitarian Message’ (2001) 21(1) Oxford Journal of Legal Studies 181. JOHN, ME and NAIR, J, (eds), A Question of Silence? The Sexual Economies of Modern India (New Delhi, Kali for Women, 1998). JOHNSON, B, A World of Difference (Baltimore, MD, John Hopkins University Press, 1987). JOPPKE, C and LUKES, S, Multicultural Questions (Oxford , OUP, 1999). KAIRYS, D, (ed), The Politics of Law a Progressive Critique, 2nd edn, (New York, NY, Pantheon, 1990). D KANDIYOTI, (ed), Women, Islam and the State (Basingstoke, Macmillan, 1991). KANT, I, BECK, LW, (ed), Perpetual Peace: A Philosophical Sketch (New York, NY, Liberal Arts Press, 1795). KAPUR, R, ‘A Love Song to Our Mongrel Selves: Hybridity, Sexuality and the Law’ (1999) 8(3) Social and Legal Studies 353. ——, The Tragedy of Victimzation Rhetoric: Resurrecting the “Native” Subject in International/Post-colonial Feminist Legal Politics’ (2002) 15 Harvard Human Rights Journal 2. ——, Erotic Justice: Law and the New Politics of Postcolonialism (London, Glasshouse, 2004). KAPUR, R and COSSMAN, B, Subversive Sites: Feminist Engagements with Law in India (London, Sage, 1996). KEKES, J, ‘Benevolence’ in LC BECKER and CB BECKER, (eds), Encyclopaedia of Ethics (London, Garland, 1992) 82. KENNEDY, CH, ‘Repugnancy to Islam—Who Decides? Islam and Legal Reform in Pakistan’ (1992) 41 ICLQ 769. KEOGH, D, The Vatican, the Bishops and Irish Politics 1919–1939 (Cambridge, CUP, 1986). ——, ‘Church, State and Society’ in B FARRELL, (ed), De Valera’s Constitution and Ours (Dublin, Gill & Macmillan, 1988) 103. ——, Ireland and the Vatican: The Politics and Diplomacy of Church-state Relations 1922–1960 (Cork, Cork University Press, 1995). KHORY, KR, ‘The Shah Bano Case: Some Political Implications’ in R BAIRD, (ed), Religion and Law in Independent India (Delhi, Manohar, 1993) 121.

238

Bibliography

KIEBERD, D, Inventing Ireland: The Literature of the Modern Ireland (London, Vintage, 1996). KINGDOM, E, ‘What’s Wrong with Rights? Problems for Feminist Politics of Law’ (Edinburgh, Edinburgh University Press, 1991). KINGSTON, J, WHELAN, A and BACIK, I, Abortion and the Law (Dublin, Roundhall and Sweet & Maxwell, 1997). KITTAY, E, Love’s Labor: Essays on Women, Equality, and Dependency (New York, NY, Routledge, 1999). KITTAY, E and MEYERS, DT, (eds), Women and Moral Theory (Totowa, Rowman & Littlefield, 1987). KLINGER, C, ‘Essentialism, Universalism, And Feminist Politics’ (1998) 2(2) Constellations 333. KNOP, K, Borders of the Imagination: The State in Feminist International Law, Proceedings of the 88th Annual Meeting of the American Society of International Law (1992). ——, ‘Re/Statements: Feminism and State Sovereignty in International Law’ (1993) 3 Transnational Law and Contemporary Problems 293. ——, ‘Relational Nationality: On Gender and Nationality in International Law’ in TA ALEINIKOFF and D KLUSMEYER, (eds), Citizenship Today: Global Perspectives and Practices (Washington D.C., Carnegie Endowment for International Peace, 2001) 89. ——, Diversity and Self-determination in International Law (Cambridge, CUP, 2002). ——, Gender and Human Rights (Oxford, OUP, 2004). KOH, HH and SLYE, RC, Deliberative Democracy and Human Rights (New Haven, CT, Yale University Press, 1999). KOSKENNIEMI, M, ‘International Law in a Post-realist Era’ (1995) 16 Australian Yearbook of International Law 1. ——, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (Cambridge, CUP, 1999). KUKATHAS, C, Rawls: A Theory of Justice and its Critics (Cambridge, Polity Press, 1990). KUPER, A, Culture: The Anthropologist’s Account (Cambridge, MA, Harvard University Press, 1999). KURIN, R, ‘Islamization in Pakistan: A View from the Countryside’ (1985) XXV(8) Asian Survey 852. KYMLICKA, W, Contemporary Political Philosophy: An Introduction (Oxford, Clarendon Press, 1990). ——, Liberalism, Community and Culture (Oxford, Clarendon Press, 1991). ——, Multicultural Citizenship: A Liberal Theory of Minority Rights, Oxford Political Theory (Oxford, Clarendon Press, 1995). ——, (ed), The Rights of Minority Cultures (Oxford, OUP, 1995). ——, ‘Do We Need a Liberal Theory of Minority Rights? Reply to Carens, Young, Parekh and Forst’ (1997) 4(1) Constellations 72. ——, Politics in the Vernacular: Nationalism, Multiculturalism, and Citizenship (Oxford, OUP, 2001). LA TORRE, M, ‘Democracy and Tensions: Representation, Majority Principle, Fundamental Rights’ EUI Working Papers in Law, LAW 95/5 (Florence, European University Institute, 1995).

Bibliography

239

——, ‘Citizenship and Social Rights a European Perspective’ EUI Working Papers of the European Forum, EUF 98/2 (Florence, European University Institute, 1998). LACEY, N, Unspeakable Subjects Feminist Essays in Legal and Social Theory (Oxford, Hart Publishing, 1998). LAU, M, ‘Islam and Fundamental Rights in Pakistan: The Case of Zaheer-Ud-Din v The State and its Impact on the Fundamental Right to Freedom of Religion’ (1994) 1 Yearbook of Islamic and Middle Eastern Law 29. LENNON, K and WHITFORD, M, (eds), Knowing the Difference: Feminist Perspectives in Epistemology (London, Routledge, 1994). LEVY, J, The Multiculturalism of Fear (Oxford, OUP, 2000). LISTER, R, Citizenship: Feminist Perspectives, 2nd edn, (New York, NY, NYU Press, 2003). LITTLE, D, KELSAY, J and SACHEDINA, AA, Human Rights and the Conflict of Cultures: Western and Islamic Perspectives on Religious Liberty (Columbia S.C., University of South Carolina Press, 1988). LOOMBA, A, Colonialism/Postcolonialism: The New Critical Idiom (London, Routledge, 1998). LOVIBOND, S, ‘Feminism and Postmodernism’ (1989) 178 New Left Review 5. ——, ‘Meaning What We Say—Feminist Ethics and the Critique of Humanism’ (1996) 22(2) New Left Review 98. LUDDY, M, Hannah Sheehy Skeffington (Dublin, Historical Association of Ireland, 1995). LUKES, S, ‘Humiliation and the Politics of Identity’ (1997) 64(1) Social Research 36. LYNCH, I, ‘Labour Law’ in A CONNELLY, (ed), Gender and the Law in Ireland (Dublin, Oak Tree, 1993) 47. LYOTARD, JF, La Condition Postmoderne Rapport Sur Le Savoir, Collection Critique, (Paris, Editions de Minuit, 1979). MACINTYRE, A, After Virtue: A Study in Moral Theory (London, Duckworth, 1981). MACKINNON, C, ‘Feminism, Marxism, Method and the State: An Agenda for Theory’ (1982) 7(3) Signs: Journal of Women in Culture and Society 515. ——, ‘Feminism, Marxism, Method, and the State: Toward a Feminist Jurisprudence’ (1983) 8(2) Signs: Journal of Women in Culture and Society 635. ——, ‘Crimes of War, Crimes of Peace’ in S SHUTE and S HURLEY, (eds), On Human Rights (New York, NY, Basic Books, 1993) 84. ——, Sex Equality (New York, NY, Foundation Press, 2001). ——, Women’s Lives, Men’s Laws (Cambridge, MA, Belknap, 2005). MACKINNON, C, Sexual Harassment of Working Women a Case of Sex Discrimination (New Haven, CT, Yale University Press, 1979). ——, Feminism Unmodified Discourses on Life and Law (Cambridge, MA, Harvard University Press, 1987). ——, Toward a Feminist Theory of the State (Cambridge, MA, Harvard University Press, 1989). ——, Only Words (Cambridge, MA, Harvard University Press, 1993). MACKINNON, CA and DWORKIN, A, (eds), In Harm’s Way the Pornography Civil Rights Hearings (Cambridge, MA, Harvard University Press, 1997). MAHMOOD, S and SHAUKAT, N, Constitution of Pakistan 1993, 2nd edn, (Lahore, Legal Research Centre, Noor Villa, 1992).

240

Bibliography

MAHMOOD, T, Muslim Personal Law, Role of the State in the Indian Subcontinent (Delhi, Vikas, 1977). MALIK, IH, State and Civil Society in Pakistan: Politics of Authority, Ideology and Ethnicity (London, Macmillan, 1997). MALIK, M, ‘Communal Goods as Human Rights’ in C GEARTY and A TOMKINS, (eds), Understanding Human Rights (London, Mansell, 1996) 138. ——, ‘Minority Protection and Human Rights’ in K EWING, A TOMKINS and T CAMPBELL, (eds), Sceptical Essays on Human Rights (Oxford, OUP, 2001) 277. ——, ‘Minority Protection and Human Rights’ in KD EWING, A TOMKINS and T CAMPBELL, (eds), Sceptical Essays on Human Rights (Oxford, OUP, 2001). MALLAT, C, The Renewal of Islamic Law (Cambridge, CUP, 1993). MALLAT, C and CONNORS, J, Islamic Family Law (London, Graham & Trotman, 1990). MAMDANI, M, Beyond Rights and Culture Talk: Comparative Essays on the Politics of Rights and Culture (New York, NY, St Martin’s Press, 2000). MANJI, A, ‘The Beautyful Ones of Law and Development’ in D BUSS and A MANJI, (eds), International Law: Modern Feminist Perspectives (Oxford, Hart Publishing, 2005) 159. MARGALIT, A and RAZ, J, ‘National Self-determination’ (1990) 87 Journal of Philosophy 439. MARKS, S, The Riddle of All Constitutions: International Law, Democracy and the Critique of Ideology (Oxford, OUP, 2000). MARTIN, F, ‘The Family in the Constitution—Principle and Practice’ in P Twomey and T Murphy, Ireland’s Evolving Constitution 1937–1997 (Oxford, Hart Publishing, 1998) 89. MARX, K and LIVINGSTONE, R, BENTON, G, (tr), Early Writings (Harmondsworth, Penguin, 1975). MAYER, AE, Islam and Human Rights: Tradition and Politics (Boulder, CO, Westview, 1995). ——, ‘Cultural Particularism as a Bar to Women’s Rights: Reflections on the Middle Eastern Experience’ (1996) 16 WLUML Dossier 21. ——, ‘A “Benign” Apartheid: How Gender Apartheid has been Rationalized’ (2001) 5 UCLA J Int’l L & Aff 237. MCCARTHY, T, ‘The Philosophy of the Limit and its Other’ (1995) 2(2) Constellations 175. MCCORMICK, JP, ‘Habermas’s Discourse Theory of Law: Bridging Anglo-American and Continental Legal Traditions?’ (1997) 60 Modern Law Review 734. MCGOLDRICK, D, ‘Multiculturalism and its Discontents’ (2005) 5(1) Human Rights Law Review 27–56. MEEHAN, J, (ed), Feminists Read Habermas: Gendering the Subject of Discourse (New York, NY, Routledge, 1995). MEHDI, R, The Islamization of the Law in Pakistan (London, Curzon, 1994). MERNISSI, F, The Veil and the Male Elite: A Feminist Interpretation of Women’s Rights in Islam (Reading, MA, Addison-Wesley, 1991). MERTUS, J and GOLDBERG, P, ‘A Perspective on Women and International Human Rights After the Vienna Declaration: The Inside/Outside Construct’ (1994) 26 NYU J Int’l L & Pol 201. METCALF, T, Ideologies of the Raj (Cambridge, CUP, 1995). MILLER, D, On Nationality (Oxford, Clarendon Press, 1995).

Bibliography

241

MILLER, DM, Church, State and Nation in Ireland 1898–1921 (Dublin, Gill & MacMillan, 1973). MINDA, G, Postmodern Legal Movements Law and Jurisprudence at Century’s End (New York, NY, NYU Press, 1995). MINOW, M and SHANLEY, ML, ‘Relational Rights and Responsibilities: Revisioning the Family in Liberal Political Theory and Law’ (1996) 11(1) Hypatia 4. MINOW, M, Making All the Difference Inclusion, Exclusion and American Law (Ithaca, NY, Cornell University Press, 1990). MIRZA, SH, Muslim Women’s Role in the Pakistan Movement, Research Society of Pakistan, (Lahore, University of the Punjab, 1969). MOGHADAM, V, ‘Patriarchy and the Politics of Gender in Modernising Societies: Iran, Pakistan and Afghanistan’ (1992) 7 International Sociology 35. MOHANTY, C, ‘Under Western Eyes: Feminist Scholarship and Colonial Discourses’ in A RUSSO, L TORRES and C MOHANTY, (eds), Third World Women and the Politics of Feminism (Bloomington, IN, Indiana University Press, 1991). ——, Feminism Without Borders: Decolonizing Theory, Practicing Solidarity (London, Duke University Press, 2003). MOHANTY, C, ‘Under Western Eyes: Feminist Scholarship and Colonial Discourses’ (1988) 30 Feminist Review 61. MORRIS, J, Pride Against Prejudice (London, Women’s Press, 1991). ——, (ed), Encounters with Strangers: Feminism and Disability (London, Women’s Press, 1996). MOSHAN, BS, ‘Women, War, and Words: The Gender Component in the Permanent International Criminal Court’s Definition of Crimes Against Humanity’ (1998) 22 Fordham International Law Journal 154. MULLALLY, S, ‘Women’s Rights and Human Rights’ in STACEY, PHOENIX and HINDS, (eds), New Directions in Women’s Studies for the 1990’s (London, Falmer, 1992) 113. ——, ‘International Human Rights Law and Body Politics’ in MILLS S and BRIDGEMAN J, (eds), Law and Body Politics (Andover, Dartmouth, 1995) 240. ——, ‘Beliefs that Discriminate: A Rights Based Solution?’ in GEARTY C and TOMKINS A, (eds), Understanding Human Rights (London, Mansell, 1996) 480. ——, ‘Equality Guarantees in the Irish Constitution: The Myth of Constitutionalism and the Neutral State’ in T MURPHY and P TWOMEY, (eds), Ireland’s Evolving Constitution 1937–1997 (Oxford, Hart Publishing, 1998) 147. ——, ‘Mainstreaming Equality in Ireland: A Fair and Inclusive Accommodation for All?’ (2001) 21(1) Legal Studies 99. ——, ‘Beyond the Limits of the Discrimination Model: Promoting Gender Equality’ in E BARRY and C COSTELLO, (eds), Equality Law in Europe (Dublin, ICEL and Equality Authority, 2003) 39 ——, ‘Feminist Jurisprudence’ in T MURPHY, (ed), Western Jurisprudence (Dublin, Roundhall Thomson, 2004) 108 ____, ‘Feminism and Multicultural Dilemmas in India: Revisiting the Shah Bano Case’ [2004] 24 Oxford J Legal Studies, 671. ____, ‘As Nearly as May be’: Debating Women’s Human Rights in Pakistan’ [2005] 14 Social Legal Studies, 341 ——, ‘Gendered Citizenship: Debating Reproductive Rights in Ireland’ [2005] 27(1) Human Rights Quarterly. 78

242

Bibliography

____, ‘Defining the limits of citizenship: family life and the jus soli principle in Irish law’ (2005) Legal Studies. ——, ‘Crossing Borders: Migrant Women and Reproductive Autonomy in Ireland’ in VAN WALSUM S, (ed), Women and Immigration Law: New Perspectives on Classical Themes (London, Glasshouse, 2006). forthcoming MULHALL, S and SWIFT, A, Liberals and Communitarians (Oxford, Blackwell, 1992). MUMTAZ, K and SHAHEED, F, Women of Pakistan: Two Steps Forward, One Step Back (Karachi, Vanguard, 1987). MURPHY, C, The Women’s Suffrage Movement and Irish Society in the Early Twentieth Century (London, Harvester, 1989). MURPHY, T, ‘Feminism Here and Feminism There: Law, Theory and Choice’ in D BUSS and A MANJI, (eds), International Law: Modern Feminist Perspectives (Oxford, Hart Publishing, 2005) 67. MURPHY, T and TWOMEY, P, (eds), Ireland’s Evolving Constitution: 1937–1997 (Oxford, Hart Publishing, 1998). MURRAY, R, ‘Women’s Rights and the Organisation of African Unity and African Union: The Protocol on the Rights of Women in Africa’ in D BUSS and A MANJI, (eds), International Law: Modern Feminist Perspectives (Oxford, Hart Publishing, 2005) 253. NAIR, J, Women and Law in Colonial India: A Social History (New Delhi, Kali for Women, 1996). NANDY, A, ‘Sati: A Nineteenth Century Tale of Women Violence and Protest’ in A NANDY, At the Edge of Psychology Essays in Politics and Culture (Delhi, OUP, 1991) 1. NANDY, A, The Intimate Enemy: Loss and Recovery of Self Under Colonialism (Delhi, OUP, 1983). ——, Traditions, Tyranny and Utopias: Essays in the Politics of Awareness (Delhi, Manohar, 1987). NARAYAN, U, Dislocating Cultures: Identities, Traditions and Third World Feminism. (London, Routledge, 1997). ——, ‘Towards a Feminist Vision of Citizenship: Rethinking the Implications of Dignity, Political Participation, and Nationality’ in ML SHANLEY and U NARAYAN, (eds), Reconstructing Political Theory: Feminist Perspectives (Cambridge, Polity Press, 1997) 48. NEDELSKY, J, ‘Communities of Judgement and Human Rights’ (2000) 1 Theoretical Inquiries in Law 245. NEDELSKY, J and BEINER, R, (eds), Judgment, Imagination and Politics: Theme from Kant and Arendt (Lanham, MD, Rowman & Littlefield, 2001). NICHOLSON, LJ, ‘Bringing it All Back Home: Reason in the Twilight of Foundationalism’ (1998) 5(3) Constellations 369. NICHOLSON, LJ and SEIDMAN, S, (eds), Social Postmodernism Beyond Identity Politics, Cambridge Cultural Social Studies (Cambridge, CUP, 1995). NICHOLSON, LJ, Feminism/Postmodernism: Thinking Gender (New York, NY, Routledge, 1990). NINO, CS, The Ethics of Human Rights (Oxford, Clarendon Press, 1991). ——, The Constitution of Deliberative Democracy (New Haven, CT, Yale University Press, 1996). ——, Radical Evil on Trial (New Haven, CT, Yale University Press, 1996).

Bibliography

243

NODDINGS, N and CARING, A, Feminine Approach to Ethics and Moral Education (Berkeley, CA, University of California Press, 1984). NUSSBAUM, M, ‘Human Functioning and Social Justice: In Defense of Aristotelian Essentialism’ (1992) 20 Pol Theory 202. ——, ‘Capabilities and Human Rights’ (1997) 66 Fordham Law Review 273. ——, Sex and Social Justice (Oxford, OUP, 1999). ——, Women and Human Development: The Capabilities Approach (Cambridge, CUP, 2000). ——, Upheavals of Thought: The Intelligence of Emotions (Cambridge, CUP, 2001). ———, ‘Public Philosophy and International Feminism’ (1998) 108 Ethics 762. NUSSBAUM M and GLOVER, J, Women, Culture, and Development: A Study of Human Capabilities (Oxford, Clarendon Press, 1995). NUSSBAUM, M and OLYAN, SM, (eds), Sexual Orientation and Human Rights in American Religious Discourse (New York, NY, OUP, 1998). NUSSBAUM, M and SEN, A, ‘Internal Criticism and Indian Relativist Traditions’ in M KRAUSZ, (ed), Relativism: Interpretation and Confrontation (Notre Dame, Notre Dame University Press, 1989) 299. O’GIOLLAIN, D, Locating Irish Folklore: Tradition, Identity and Modernity (Sterling, VA, Cork University Press, 2000). O’REILLY, E, Masterminds of the Right (Cork, Attic Press, 1992). OKIN, SM, Women in Western Political Thought (Princeton, NJ, Princeton University Press, 1979). ——, Justice, Gender and the Family (New York, NY, Basic Books, 1989). ——, ‘Thinking Like a Woman’ in D Rhode, Theoretical Perspectives on Sexual Difference (New Haven, CT, Yale University Press, 1990) 145. ——, ‘Reason and Feeling in Thinking About Justice’ in C SUNSTEIN, (ed), Feminism and Political Theory (Chicago, IL, Chicago University Press, 1990) 15. ——, ‘Political Liberalism, Justice, and Gender’ (1994) 105(1) Ethics 23. ——, ‘Gender Inequality and Cultural Differences’ (1994) 22(1) Political Theory 5. ——, ‘Is Multiculturalism Bad for Women?’ (1997) 22 Boston Review 25. ——, ‘Feminism and Multiculturalism: Some Tensions’ (1998) 108 Ethics 661. ——, ‘Is Multiculturalism Bad for Women’ in J HOWARD, M NUSSBAUM and J COHE, (eds), Is Multiculturalism Bad for Women: Susan Moller Okin with Respondents (Princeton, NJ, Princeton University Press, 1999) 7. OLSEN, F, ‘Statutory Rape: A Feminist Critique of Rights Analysis in Feminist Legal Theory’ (1984) 63 Texas Law Review 387. ——, ‘International Law: Feminist Critiques of the Public/Private Distinction’ in DG DALLMEYER, (ed), Reconceiving Reality: Women and International Law (Washington DC, American Society of International Law, 1993) 157. ——, Feminist Legal Theory, International Library of Essays in Law and Legal Theory, 2nd edn, (Aldershot, Dartmouth, 1995). ——, ‘Democratic Inequalities: The Problem of Equal Citizenship in Habermas’s Democratic Theory’ (1998) 5(2) Constellations 215. OQUENDO, AR, ‘Deliberative Democracy in Habermas and Nino’ (2002) 22(2) Oxford Journal of Legal Studies 189. ORFORD, A, ‘Contesting Globalization: A Feminist Perspective on the Future of Human Rights’ (1998) 8 Transnat’l L & Contemp Probs 171.

244

Bibliography

——, ‘Embodying Internationalism: The Making of International Lawyers’ (1998) 19 Australian Yearbook of International Law 120. ——, ‘Feminism, Imperialism and the Mission of International Law’ (2002) 71 Nordic Journal of International Law 275. OTTO, D, ‘A Post-Beijing Reflection on the Limits and Potential of Human Rights Discourse for Women’ (1996) 6 Australian Feminist Law Journal 7. ——, ‘Subalternity and International Law: The Problems of Global Community and the Incommensurability of Difference’ (1996) 5 Social and Legal Studies 337. ——, ‘Rethinking the “Universality” of Human Rights’ (1997) 29 Columbia Human Rights Law Review 1. ——, ‘Disconcerting “Masculinities”: Reinventing the Subject of International Human Rights’ in D BUSS and A MANJI, (eds), International Law: Modern Feminist Perspectives (Oxford, Hart Publishing, 2005) 105. PANDAY, G, The Construction of Communalism in Modern India (Delhi, OUP, 1990). PANNIKAR, KN, (ed), The Concerned Indian’s Guide to Communalism (New Delhi, Penguin, 1999). PANTHAM, T, ‘Indian Secularism and its Critics: Some Reflections’ (1997) 59 Review of Politics 523. PAREKH, B, Gandhi’s Political Philosophy: A Critical Examination (Indiana, University of Notre Dame Press, 1989). ——, Rethinking Multiculturalism: Cultural Diversity and Political Theory (Cambridge, MA, Harvard University Press, 2000). DE PASSERIN, M and BENHABIB, S, (eds), Habermas and the Unfinished Project of Modernity Critical Essays on the Philosophical Discourse of Modernity (Cambridge, Polity Press, 1996). PATEMAN, C, ‘Feminist Critiques of the Public/Private Dichotomy’ in A PHILLIPS, (ed), Feminism and Equality (Oxford, Blackwell, 1987). PAUL, JR, ‘Cultural Resistance to Global Governance’ (2000) 22 Michigan Journal of International Law 1. PEARL, D, ‘Family Law in Pakistan’ [1969] Journal of Family Law 165. ——, A Textbook on Muslim Personal Law (London, Croom Helm, 1987). PEREIRA, F, The Fractured Scales: The Search for a Uniform Personal Code (Calcutta, Stree, 2002). PERRY, MJ, ‘Are Human Rights Universal—The Relativist Challenge and Related Matters’ (1997) 19(3) Humn Rights Quarterly 461. PHELAN, R, ‘Right to Life of the Unborn vs Promotion of Trade in Services: The European Court of Justice and the Normative Shaping of the European Union’ (1992) 55 MLR 670. PHILLIPS, A, Hidden Hands Women and Economic Policies: Arguments for Socialism (London, Pluto, 1983). ——, (ed), Feminism and Equality: Readings in Social and Political Theory (Oxford, Blackwell, 1987). ——, Engendering Democracy (London, Polity Press, 1991). ——, Democracy and Difference (Cambridge, Polity Press, 1993). ——, ‘Dealing with Difference: A Politics of Ideas or a Politics of Presence?’ (1994) 1(1) Constellations 74. ——, The Politics of Presence (Oxford Political Theory, Oxford, Clarendon Press, 1995).

Bibliography

245

——, ‘From Inequality to Difference: A Severe Case of Displacement?’ (1997) 224 New Left Review 143. ——, Which Equalities Matter? (London, Polity Press, 1999). POE, SC, WENDELBLUNT, D and HO, K, ‘Global Patterns in the Achievement of Women Human Rights to Equality’ (1997) 19(4) Human Rights Quarterly 813. POGGE, T, Realizing Rawls (Ithaca, NY, Cornell University Press, 1989). ——, (ed), Global Justice (London, Blackwell, 2001). ____, Realizing Rawls (Ithaca, Cornell University Press, 1989). POLLIS, A and SCHWAB, P, ‘Human Rights: A Western Construct with Limited Applicability’ in A POLLIS and P SCHWAB, Human Rights: Cultural and Ideological Perspectives (New York, NY, Praeger, 1979) 1. POSNER, RA, The Problems of Jurisprudence (Cambridge, MA, Harvard University Press, 1990). PUSEY, M, Jürgen Habermas (London, Tavistock, 1987). QUINN, A, ‘Cathleen Ni Houlihan Writes Back: Maud Gonne and Irish National Theatre’ in A BRADLEY and M VALIULIS, (eds), Gender and Sexuality in Modern Ireland (Amherst, MA, University of Massachusetts Press, 1997) 39. QUINN, G, ‘Reflections on the Legitimacy of Judicial Activism in the Field of Constitutional Law’ [1991] Dli 29. RADIN, M, ‘The Pragmatist and the Feminist’ (1990) 63 California Law Review 1699. RAHMAN, A, ‘Religious Rights vs Women’s Rights in India: A Test Case for International Human Rights Law’ (1990) 28 Columbia Journal of Transnational Law 473. RAHMAN, F, ‘Islam and the Constitutional Problem of Pakistan’ (1970) XXXII Studia Islamica 275. RAO, A, ‘The Politics of Gender and Culture in International Human Rights Discourse’ in J PETERS and A WOLPER, (eds), Women’s Rights Human Rights: International Feminist Perspectives (New York, Routledge, 1994) 167. RAWLS, J, ‘Two Concepts of Rules’ (1955) 64(1) Philosophical Review 3. ——, ‘Justice as Fairness’ (1957) 54(22) Journal of Philosophy 653. ——, ‘The Sense of Justice’ (1963) 72(3) Philosophical Review 281. ——, A Theory of Justice (Oxford, OUP, 1972). ——, ‘Kantian Constructivism in Moral Theory’ (1980) 77(9) Journal of Philosophy 515. ——, ‘Justice as Fairness: Political not Metaphysical’ (1985) 14(3) Philosophy & Public Affairs 223. ——, ‘The Idea of an Overlapping Consensus’ (1987) 7(1) Oxford Journal of Legal Studies 1. ——, ‘The Priority of Right and Ideas of the Good’ (1988) 17(4) Philosophy & Public Affairs 251. ——, ‘The Domain of the Political and Overlapping Consensus’ (1989) 64(2) New York University Law Review 233. ——, ‘The Law of Peoples’ (1993) 20(1) Critical Inquiry 36. ——, Political Liberalism: The John Dewey Essays in Philosophy (New York, NY, Columbia University Press, 1993). ——, ‘Reconcilation through the Public Use of Reason: Reply to Jurgen Habermas’ (1995) 92(3) Journal of Philosophy 132.

246

Bibliography

——, ‘The Idea of Public Reason Revisited’ (1997) 64(3) University of Chicago Law Review 765. ——, The Law of Peoples (Cambridge, MA, Harvard University Press, 1999). ——, A Theory of Justice (Cambridge, MA, Belknapp, 1999). ——, Justice as Fairness: A Restatement (Cambridge, MA, Belknap, 2001). RAZ, J, The Morality of Freedom (Oxford, Clarendon Press, 1986). REGIS, E, (ed), A Gewirth, Gewirth’s Ethical Rationalism Critical Essays with a Reply by Alan Gewirth (Chicago, IL, University of Chicago Press, 1984). REHMAN, J, ‘Minority Rights and the Constitutional Dilemmas of Pakistan’ (2001) 19(4) Netherlands Quarterly of Human Rights 417. REHOF, LA, Guide to the Travaux Preparatoires of the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (Dordrecht, Martinus Nijhoff, 1993). RENTELN, AD, International Human Rights: Universalism Versus Relativism (London, Sage, 1990). RHODE, D L, ‘Feminist Critical Theories’ (1990) 42 Stanford Law Review 617. _____, Justice and Gender Sex Discrimination and the Law (Cambridge, MA, Harvard University Press, 1989). ——, (ed), Theoretical Perspectives on Sexual Difference (New Haven, CT, Yale University Press, 1990). ROMANY, C, ‘Black Women and Gender Equality in a New South Africa: Human Rights Law and the Intersection of Race and Gender’ (1996) 21 Brook J Int’l L 857. ———, ‘Claiming a Global Identity: Latino/A Critical Scholarship and International Human Rights’ (1997) 28 University of Miami Inter–Am L Rev 215. RORTY, R, Philosophy and the Mirror of Nature (Oxford, Blackwell, 1980). ——, Contingency, Irony and Solidarity (Cambridge, CUP, 1989). ——, ‘Feminism and Pragmatism’ in GB PETERSON, (ed), The Tanner Lectures on Human Values, vol 13 (Salt Lake City, UT, University of Utah Press, 1990) 1. ——, Philosophy and Social Hope (London, Penguin, 1999). RICHARD, R, Truth, Politics and ‘Post-modernism’ (Assen, Van Gorcum, 1997). ROSENFELD, M, ‘Law As Discourse: Bridging the Gap Between Democracy and Rights, Review of J Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy’ (1995) 108 Harvard Law Review 1163. SANDEL, MJ, Liberalism and the Limits of Justice (Cambridge, CUP, 1982). ——, (ed), Liberalism and its Critics: Readings in Social and Political Theory (Oxford, Blackwell, 1984). ——, Democracy’s Discontent America in Search of a Public Philosophy (Cambridge, MA, Harvard University Press, 1996). SANGARI, K, Politics of the Possible: Essays on Gender, History, Narratives, Colonial English (London, Anthem, 2002). SCANNELL, Y, ‘The Constitution and the Role of Women’ in B FARRELL, (ed), De Valera’s Constitution and Ours (Dublin, Gill & Macmillan, 1988) 123. SCHABAS, W, ‘Reservations to the Convention on the Rights of the Child’ (1996) 18 Human Rights Quarterly 473. SELLARS, PV, ‘Individuals Liability for Collective Sexual Violence’ in K KNOP, (ed), Gender and Human Rights (Oxford, OUP, 2004) 143.

Bibliography

247

SEN, A, ‘Capability and Well-being’ in M NUSSBAUM and A SEN, (eds), The Quality of Life (Oxford, Clarendon Press, 1993) 30. ——, ‘India and the West’ [1994] 210 The New Republic. 31 ——, ‘Secularism and its Discontents’ in K BASU and S SUBRAHMANYAM, (eds), Unravelling the Nation (Delhi, OUP, 1995) 11. SHACHAR, A, Multicultural Jurisdictions: Cultural Differences and Women’s Rights (Cambridge, CUP, 2001). SHAHEED, F, ‘The Other Side of the Discourse: Women’s Experiences of Identity, Religion and Activism in Pakistan’ in F SHAHEED, et al, (eds), Shaping Women’s Lives: Law, Practices and Strategies in Pakistan (Lahore, Shirkat Gah, 1998) 415. SHAHID, F, ‘Controlled or Autonomous? Identity and the Experience of the Network, Women Living Under Muslim Laws’ [1994] Signs 997. ——, et al, (eds), Shaping Women’s Lives: Laws, Practices and Strategies in Pakistan (Lahore, Shirkit Gah, 1998). SHANLEY, ML and NARAYAN, U, Reconstructing Political Theory: Feminist Perspectives (Cambridge, Polity Press, 1997). SHANNON, CB, ‘The Changing Face of Cathleen Ni Houlihan: Women and Politics in Ireland, 1960–1966’ in A BRADLEY and MG VALIULIS, (eds), Gender and Sexuality in Modern Ireland (Amherst, MA, University of Massachusetts Press, 1997) 257. SHAPIRO, I and KYMLICKA, W, (eds), Ethnicity and Group Rights XXXIX NOMOS (New York, NY, New York University Press, 1997). SHEEHY-SKEFFINGTON, H, ‘Bean Na HEireann’ in M Ward, In Their Own Voice: Women and Irish Nationalism (Cork, Attic Press, 1995) 35. SHER, G, ‘Other Voices, Other Rooms? Women’s Psychology and Moral Theory’ in E KITTAY and D MEYERS, (eds), Women and Moral Theory (Savage, MD, Rowman & Littlefield, 1987) 178. SHKLAR, J, The Faces of Injustice (New Haven, CT, Yale University Press, 1990). SHOURIE, A, A Secular Agenda: For Strengthening Our Country, For Welding It (New Delhi, Harper Collins, 1997). SINGH, I, The Ardent Pilgrim: An Introduction to the Life and Works of Mohammed Iqbal (New York, NY, OUP, 1997). SINGH, K, ‘The Constitution and Muslim Personal Law’ in Z HASAN, (ed), Forging Identities: Gender, Communities, and the State in India (Boulder, CO, Westview, 1994) 96. ——, ‘Obstacles to Women’s Rights in India’ in RJ COOK, (ed), Human Rights of Women: National and International Perspectives (Philadelphia, PA, University of Pennsylvania Press, 1994) 384. SMART, C, Women, Crime and Criminology a Feminist Critique (London, Routledge and Kegan Paul, 1976). ——, The Ties that Bind Law, Marriage and the Reproduction of Patriarchal Relations (London, Routledge and Kegan Paul, 1984). ——, Feminism and the Power of Law: Sociology of Law and Crime (London, Routledge, 1989). ——, Law, Crime and Sexuality Essays in Feminism (London, Sage, 1995). SMYTH, A, (ed), The Abortion Papers (Dublin, Attic, 1990). ——, ‘The ‘X’ Case: Women and Abortion in the Republic of Ireland (1992) 1(2) Feminist Legal Studies 163.

248

Bibliography

——, Irish Women’s Studies Reader (Dublin, Attic, 1993). SOMMERS, CH, ‘Filial Morality’ in E KITTAY and D MEYERS, (eds), Women and Moral Theory (Savage, MD, Rowman & Littlefield, 1987) 69. SPELMAN, E, Inessential Woman (Boston, Beacon, 1988). SPIVAK, G, In Other Worlds: Essays in Cultural Politics (New York, NY, Routledge, 1987). ——, The Post Colonial Critic: Interviews, Strategies, Dialogues (New York, NY, Routledge, 1990). SQUIRES, J, Principled Positions (London, Lawrence & Wishart, 1993). STARK, B, ‘The Other Half of the International Bill of Rights as a Postmodern Feminist Text’ in DG DALLMEYER, (ed), Reconceiving Reality: Women and International Law, Studies in Transnational Legal Policy, vol 25 (Washington DC, American Society of International Law, 1993) 19. STEINER, HJ and ALSTON, P, International Human Rights in Context Law, Politics, Morals Text and Materials (Oxford, Clarendon Press, 1996). STEWART, A, Gender Law and Justice (London, Blackstone, 1998). STOPLER, G, ‘Countenancing the Oppression of Women: How Liberals Tolerate Religious and Cultural Practices that Discriminate Against Women’ (2003) 12 Colum J Gender & L 153. SULLIVAN, DJ, ‘Gender Equality and Religious Freedom: Toward a Framework for Conflict Resolution’ (1992) 24 NYU J of Int’l L & Pol 795. SUNDER, M, ‘Cultural Dissent’ (2001) Stan L Rev 495. ——, ‘Piercing the Veil’ (2003) 112(6) Yale LJ 1399. SUNSTEIN, CR, The Partial Constitution (Cambridge, MA, Harvard University Press, 1993). SYPNOWICH, C, ‘Feminism and the Critique of Political Theory, A Review of E Frazer and N Lacey, The Politics of Community: A Feminist Critique of the Liberalcommunitarian Debate’ (1996) 16 Oxford Journal of Legal Studies 175. TAMIR, Y, ‘Against Collective Rights’ in C JOPPKE and S LUKES, (eds), Multicultural Questions (Oxford, OUP, 1999) 158. TAUB, N and SCHNEIDER, EM, ‘Women’s Subordination and the Role of Law’ in D KAIRYS, (ed), The Politics of Law, 2nd edn, (New York, NY, Pantheon, 1990) 151. TAYLOR, C, (ed), Modern European Philosophy (Cambridge, CUP, 1979). ——, ‘Atomism’ in C TAYLOR (ed.), Philosophical Papers (Cambridge, CUP, 1985) 151. ——, Sources of the Self the Making of the Modern Identity (Cambridge, CUP, 1989). ——, Multiculturalism and the Politics of Recognition (Princeton, NJ, Princeton University Press, 1992). TICKNER, JA, Gendering World Politics (New York, NY, Columbia University Press, 2001). TOOMEY, D, (ed), Yeats and Women (Basingstoke, Macmillan, 1997). TRONTO, J, ‘Beyond Gender Difference to a Theory of Care’ (1987) 12(4) Signs 644. VALUILIS, MG, ‘Power, Gender and Identity in the Irish Free State’ in J HOFF and M COULTER, (eds), Irish Women’s Voices Past and Present (Bloomington, IN, Indiana University Press, 1995) 117. VANITA, R, (ed), Queering India: Same-sex Love and Eroticism in Indian Culture and Society (New York, NY, Routledge, 2002).

Bibliography

249

VISRAM, R, Women in India and Pakistan: The Struggle for Independence from British Rule (Cambridge, CUP, 1992). VISWESWARAN, K, ‘Small Speeches, Subaltern Gender: Nationalist Ideology and its Historiography’ in S AMIN and D CHAKRABARTY, (eds), Subaltern Studies: Writings on South Asian History and Society, vol IX (Delhi, OUP, 1997) 83. WARD, M, Unmanageable Revolutionaries: Women and Irish Nationalism (London, Pluto, 1983). ——, Hannah Sheehy-Skeffington: A Life (Dublin, Attic, 1997). ——, ‘Nationalism, Pacificism, Internationalism: Louise Bennett, Hanna SheehySkeffington, and the Problems of “Defining Feminism”’ in A BRADLEY and MG VALIULIS, (eds), Gender and Sexuality in Modern Ireland (Amherst, MA, University of Massachusetts Press, 1997) 84. WEILER, JHH and LOCKHART, NJS, ‘“Taking Rights Seriously”: The European Court and its Fundamental Rights Jurisprudence—Part I’ (1995) 32 Common Market Law Review 51. ——, ‘“Taking Rights Seriously”: The European Court and its Fundamental Rights Jurisprudence—Part II’ (1995) 32 Common Market Law Review 579. WEISS, AN, ‘Women’s Position in Pakistan: Sociocultural Effects of Islamisation’ (1985) XXV(8) Asian Survey 863. WEST, R, ‘Jurisprudence and Gender’ in K Barteltt and R Kennedy, Feminist Legal Theory: Readings in Law and Gender (Boulder, CO, Westview, 1991) 201. WHELAN, A, (ed), Law and Liberty in Ireland (Dublin, Oak Tree, 1993). WHITE, SK, ‘On the Normative Structure of Action: Gewirth and Habermas’ (1982) 44 Review of Politics 282. WHYTE, G, ‘Constitutional Adjudication, Ideology and Access to the Courts’ in A WHELAN, (ed), Law and Liberty in Ireland (Dublin, Oak Tree, 1993) 149. ——, ‘Some Reflections on the Role of Religion in the Constitutional Order’ in P TWOMEY and T MURPHY, (eds), Ireland’s Evolving Constitution 1937–1997 (Oxford, Hart Publishing, 1998) 51. WHYTE, JH, Church and State in Modern Ireland 1923–1970 (Dublin, Gill & MacMillan, 1980). WILLIAMS, PJ, ‘Alchemical Notes: Reconstructing Ideals from Deconstructed Rights’ (1987) 22 Harvard CR-CL Law Rev 401. WING, AK, Critical Race Feminism: An International Reader (New York, NY, New York University Press, 1997). WRIGHT, S, ‘Economic Rights and Social Justice: A Feminist Analysis of Some International Human Rights Conventions’ (1992) 12 Australian Yearbook of International Law 241. ——, International Human Rights, Decolonisation and Globalisation: Becoming Human (London, Routledge, 2001). WUTHNOW, R, Acts of Compassion (Princeton, NJ, Princeton University Press, 1991). YOUNG, IM, ‘Impartiality and the Civic Public: Some Implications of Feminist Critiques of Moral and Political Theory’ in S BENHABIB and D CORNELL, (eds), Feminism as Critique: On the Politics of Gender (Minneapolis, MN, University of Minnesota Press, 1986) 57. ——, ‘Polity Press and Group Difference: A Critique of the Ideal of Universal Citizenship’ in CR Sunstein, Feminism and Political Theory (Chicago, IL, Chicago University Press, 1990) 117.

250

Bibliography

——, Justice and the Politics of Difference (Princeton, NJ, Princeton University Press, 1990). ——, ‘A Multicultural Continuum: A Critique of Will Kymlicka’s Ethnic–Nation Dichotomy’ (1997) 4(1) Constellations 48. ——, ‘Unruly Categories—A Critique of Fraser, Nancy Dual Systems Theory’ (1997) 22(2) New Left Review 147. ——, Intersecting Voices: Dilemmas of Gender, Political Philosophy, and Policy (Princeton, NJ, Princeton University Press, 1998). ——, Inclusion and Democracy (Oxford, OUP, 2000). ——, On Female Body Experience: Throwing Like a Girl and Other Essays (Oxford, OUP, 2004). F ZAFAR, Finding Our Way: Readings on Women in Pakistan (Lahore, ASR, 1991). L ZASTOUPIL, John Stuart Mill and India (Stanford, CA, Stanford University Press, 1994). ——, Pakistan: The Enigma of Political Development (Folkestone, KY, Westview, 1980). ——, ‘From Islamic Republic to Islamic State in Pakistan’ (1984) XXIV(9) Asian Survey 931.

Reports Amnesty International USA, ‘Pakistan: Violence Against Women in the Name of Honour’ (New York, NY, Amnesty International USA, 1999). Constitution Review Group, ‘Report of the Constitution Review Group’ (Dublin, Government Stationery Office, 1996). Department of Justice, Equality and Law Reform, ‘Equal Opportunities Childcare Programme 2000–2006’ (Dublin, Government Stationery Office, 2002). Govt of Ireland, ‘UN General Assembly Special Session: “Women 2000, Gender Equality Development”’(Department of Justice, Equality and Law Reform, Dublin: 2000). Is it same as subsequent? No ——, ‘UN General Assembly Special Session: “Women 2000: Gender Equality, Development and Peace for the 21st Century”: National Forum for Non-governmental Organisations’, 10 May 2000 (Report on Proceedings, Dublin, 2000). Dept of An Taoiseach, ‘Green Paper on Abortion’ (Dublin, Government Stationery Office, 1999). Equality Authority, ‘Towards a Vision for a Gender Equal Society’ (Dublin, Equality Authority, 2002). Government of Pakistan, ‘Report of the Pakistan Commission on the Status of Women’ (Islamabad, Government of Pakistan, 1986). ‘Report of the Pakistan Commission on the Status of Women’ (Islamabad, Pakistan Press, 1988). Human Rights Commission of Pakistan, ‘State of Human Rights in Pakistan, 2001’ (Lahore, HRCP, 2002). Human Rights Watch, ‘Crime or Custom: Violence Against Women in Pakistan’ (New York, NY, Human Rights Watch, 1999). ——, ‘Humanity Denied: Systematic Violations of Women’s Rights in Afghanistan’ (New York, NY, Human Rights Watch, 2001).

Bibliography

251

Inter-Action Council, ‘It Is Time to Talk About Human Responsibilities’ (Introductory Comment, 1997). ——, ‘A Universal Declaration of Human Responsibilities, Report on the Conclusions and Recommendations by a High-Level Expert Group Meeting’. Irish Council for Civil Liberties (Women’s Committee), ‘The Committee on the Elimination of All Forms of Discrimination Against Women’ (Dublin, ICCL, 1999). Irish Human Rights Commission, ‘Submission to the UN Committee on the Elimination of Discrimination Against Women in Respect of Ireland’s Combined 4th and 5th Reports under the Convention on the Elimination of All Forms of Discrimination Against Women’ (Irish Human Rights Commission, Dublin, 2005). Irish Medical Council, ‘A Guide to Ethical Conduct and Behaviour’ (Irish Medical Council, Dublin, 1998). Ministry for Women’s Development, et al, ‘National Plan of Action for Women’ (Islamabad, Government of Pakistan, 1998). National Institute of Human Rights, ‘Handbook on Human Rights for Judicial Officers’ (Bangalore, NLSIU, 2000). National Union of Mothers of Ireland, ‘Submission to the Forum on Europe’, 2001. National Women’s Council of Ireland, ‘The Hidden Poverty of Women’, 2000 (Dublin, NWCI, 2000). ——, ‘Promises Made Promises Broken: Beijing + 5 Alternative Report for Ireland’ (Dublin, NWCI, 2000). ——, ‘Submission to the Forum on Europe’ (NWCI, Dublin, 2001). ‘Neart: A National Coalition of Women’s Rights, Pro-life and Pro-family Groups’, ‘Beijing + 5: Alternative Report for Ireland’, 2000. ‘Neart: A National Coalition of Women’s Rights, Pro-life and Pro-family Groups’, Submission to the National Forum on Europe, 2001. ‘Neart: A National Coalition of Women’s Rights, Pro-life and Pro-family Groups’, Beijing + 10: Submission to the Strategic Review Committee on the Implementation of the Beijing Platform for Action in Ireland, 2002 available at: http://www.justice.ie/80256E010039C5AF/vWeb/flJUSQ6ARE3V-en/$File/ Group64.pdf” \t “_blank” Oireachtas Committee on the Constitution, ‘Report of the Committee on the Constitution’ (Government Stationery Office, Dublin, 1967). Second Commission on the Status of Women, ‘Report to Government’ (Government Stationery Office, Dublin, 1993). Tobique Women’s Group, ‘Enough Is Enough: Aboriginal Women Speak Out, as Told to J Silman’ (Toronto, Women’s Press, 1987). UN Economic and Social Council, ‘Concluding Observations of the Committee on Economic, Social and Cultural Rights’, E/C.12/1/Add.35 (Ireland, 1999). United Nations, Statement by Secretary-General, Kofi Annan, on the 50th anniversary year of the Universal Declaration of Human Rights, Universal Declaration of Human Rights, Illuminates, Global Pluralism and Diversity.

Index

abortion, 113, 142–56, 160–1 Ackerman, Bruce, xxi adoption, Ireland, 130 Afghanistan, 109, 170, 180, 184 African Charter on Human and People’s Rights, 8 Ahern, Bertie, 149–50 Albania, 94 Algeria, 104–5 Ambedkar, Bhimrao, 199 Amnesty International, 187–8 An-Naim, Abduallahi, 41 anti-essentialism, 107–10, 112 Arendt, Hannah, 5, 70, 72 Argentina, 113 Aristotle, 66, 67 Asian values, 7

and Gewirth, 27–8 just multicultural arrangements, 80–6, 111, 159–63, 209–14, 216 on postmodernism, 16–17 public/private boundaries, 55, 72, 76, 221 Shah Bano case, 202 social democracy, 66 and Young, 21 Berlin, Isaiah, 9, 67 Beveridge, Fiona, 79 Bhabha, Homi K., xxviii, 74, 85 Bhutto, Benazir, 190 Bosnia-Herzegovina, 109 Bulgaria, 94 Buss, Doris, xvii Byelorussia, 94

Baier, Annette, 4 Bangladesh, 173 Bartlett, Katharine, 18 Bedau, Hugo Adam, 42–3 Beijing Conference, 107, 137 Beijing Declaration, 100, 154 Belgium, 95 Benedict XVI, Pope, 106 Benhabib, Seyla: autonomy, 63, 71 cosmopolitanism and human rights, 74–80, 87 deliberative democracy, 75, 188, 213 discourse ethics, 69–87, 159, 221–2 dual track approach, xxi–xxii, 69, 86–7, 159–64, 210, 213 female self, 10

Cain, Patricia, 15 Canada: Indian Act, 82–3 Sandra Lovelace case, 53, 81–4 Catholic Church: Catholics for a Free Choice, 110, 161–2 egalitarian interpretations, 110 gender differences, 125, 138–9 and International Criminal Court, 106 Ireland, 117–19, 122–5, 150, 152, 156, 158 and reproductive rights, 48, 142, 155 treaty reservations, 106 Vatican policy, 106, 122, 137, 156

254

Index

CEDAW: Article 2, 101, 105, 185 Article 5, 46, 100 Article 9, 103 Article 16, 46, 100, 102–3, 106, 107, 184, 186 Committee, 77, 106–7, 112–13 discrimination in family relations, 46 equality underpinning, 6 and India, 103, 113, 193, 208–9, 211, 215 and Ireland, 129, 135–6, 151–4, 161–2 and minorities, xv nationality rights, 103 and Pakistan, 102, 184–8, 189 ratifications, 89 reservations, xxii, 37, 87, 89–91, 98–107 Charlesworth, Hilary, xvii, 51, 76 Chatterji, Jyotsna, 208 Chile, 113 China, 94 Chinkin, Christine, xvii, 51 Chubb, Basil, 132 civil rights movements, xviii–xix, 13–14 Cixous, Hélène, 22 communitarianism, 7, 9–10, 30, 35, 48, 74, 84, 211 Connolly, James, 120 constructivism, 70 Conway, Cardinal, 132 Cook, Rebecca, 98 Cornell, Drucilla, xiv, 10, 16, 22–4, 84 cosmopolitanism, 74–80, 87, 164, 209–10, 219 Cossmann, Brenda, 198 Costello, John A, 126 crimes against humanity, 109, 153 critical legal theory, 17, 220 critical theory, xvii cultural differences: Benhabib, 69, 74–86 and deliberative democracy, xxi, xxvii, 75, 114, 188, 209, 213, 215, 217 and discourse ethics, xxi–xxix, 220–4 dual track model, xxi–xxii, 69, 78, 86–7, 159–64, 181, 191, 195, 210, 213, 221–2 from ethnos to demos, 156–63, 168–9 Gewirth, 33, 35–8 India, 193–217

joint governance model, 213–14 just multicultural arrangements, 80–6, 111, 159–63, 209–14, 216 multiculturalism, 72, 84, 195, 209–14, 215 overlapping consensus, 41, 44–50, 64–7 Pakistan, 181–8, 189–90 Rawls, 42, 44–50, 56 relativism, 35, 107–8, 190 and treaty reservations, 107–10 Czechoslovakia, 94 Daas, Veena, 200 de Valera, Eamon, 122–4, 126, 127 deconstructionism, 22–4 democracy: Benhabib, 66, 75, 79–80, 213 deliberative democracy, xxi, xxvii, 66, 75, 114, 188, 209, 213, 215, 217 and discourse ethics, 222 from ethos to demos, 156–63, 168–9 Pakistan, 181, 189 social democracy, 66 Denmark, 94 Derrida, Jacques, 22, 24 differences see cultural differences disability, disabled women, xv discourse ethics: Benhabib, 69–87, 159, 221–2 and clash of cultures, xxi–xxix, 220–4 dual-track approach, 195, 210, 213 and feminism, xviii–xxix from ethnos to demos, 156–63, 168–9 and human rights, xviii–xxii human rights and cosmopolitanism, 74–80 just multicultural arrangements, 11, 80–6, 159–63, 209–14, 216 and multiculturalism, 195 Nussbaum, 66 and reservations, 91 and universalism, 70–4 divorce, 131–3, 187 domestic violence, 13, 108–9 economic and social rights, 28, 79–80 Egypt, 105–6, 112 Engle, Karen, xvi, 79, 219 Enlightenment: and equality, 13

Index feminist critique, 223 human rights discourse, xiii liberalism, xix, 16, 26 rationalism, 18, 63, 70 troubled legacies, 28, 69, 109, 219 essentialism, 22, 24, 33, 105, 136–7 ethical feminism, 22–4 ethics of care: assessment, 25 and Cornell, 24 ethical particularism, 5–7 generally, 1, 2–12 and Gewirth, 28, 30 Gilligan, 2–3 and Ireland, 126–7, 138 reason v sentiment, 4–5 rights v responsibilities, 7–12 ethics of justice, 2, 7, 11 European Convention on Human Rights, reservations, 94–5, 98 European Court of Human Rights: and Irish abortion rights, 143–5, 161 and reservations, 94–5 European Union: and Ireland, xxv, 137–8, 142, 145–6, 150 and Vatican, 156

255

post-structuralists, 19–21 and universalism see universalism Victorian feminists, 196 Fineman, Martha, 3, 11–2, 63 Fire (film), 64 Fletcher, Ruth, 141 Flynn, Leo, 131 forced pregnancy, 153, 162 France, xv, 22, 94, 118n4 Fraser, Nancy, 18 freedom of conscience: and discrimination, 55–6 and personal laws, 215 Fukuda, Takeo, 8 Fuss, Diana, 108

Gender Development Index, 62 gender equality: CEDAW, 100–3 India, 193–217 Ireland, 117–40 Islam, 190–1 Pakistan, 167–91 v religion, 105 Sandra Lovelace case, 82–4 and Western feminists, 79 Geneva Conventions, 94 genital mutilation, xv, 108–9 family relations: Genocide Convention, 92 and CEDAW, 100, 102–3 Gewirth, Alan: ICCPR, 104 assessment, 38–9 India, 193–217 capacity for agency, 36, 61 Ireland, 117–40 communal values, 27, 30–2 Pakistan, 170, 172, 174–7, 177–88 conflicting cultural claims, 35–8 treaty reservations, 104, 107 democratic participation, 37, 39 feminism: economic and social rights, 28, 79 anti-essentialism, 107–10, 112 and ethical particularism, 6, 32 Benhabib see Benhabib, Seyla and ethics of care, 28, 30 Cornell’s ethical feminism, feminism and liberalism, 27–39 22–4 feminist concerns, 25–6 deconstruction, 22–4 generally, 27–39 and defence of culture, 107–10 Golden Rule, 33–4 discourse ethics see discourse ethics human rights discourse, xix–xx ethics of care, 1, 2–12, 24–5, 28, 30, liberalism, 26–7, 29, 38, 221 126–7, 138 ‘lonely geometrician,’ 28, 32–5, 71 and International Human Rights Law principle of generic consistency, 9, reservations, 90–1, 107 28–32 India, 195–202 universalism, 28 MacKinnon’s radical feminism, Gilligan, Carol, xiv, xviii, 2–3, 7, 8–10, 12–16, 25 19, 27, 34, 63 neo-pragmatism, 17–19 globalisation: Nussbaum see Nussbaum, Martha and cultural differences, 111 post-modernism, xix, 16–25 and exploitation, 224

256

Index

Islamic Shariat Board, 202, 213, 216 maintenance of divorced women, 199–200, 203–7, 209, 210 and multiculturalism, 195, 209–14 personal laws, 81, 171, 197, 200, 211, 214–15 Habermas, Jürgen, xvi, xix, 21, 71–3, public/private boundaries, 193–4, 75, 78, 80, 156, 159, 163–4, 222 196–7 Hampson, Françoise, 97–8 religious divisions, 193, 198, 207 Hastings Plan, 171, 197 secularism, 198 Hegel, Georg, 43, 53, 73 Self-Employed Women’s Association, Higgins, Rosalyn, 96 62 Higgins, Tracey, 108–9 Shah Bano case, 53, 65, 193, history, death of history, 16 195, 199–207, 209–14, Holocaust, 13 215–16 honour crimes, 183, 186–8 uniform civil code, 194, 199, 203, Human Development Index, 62, 67 207, 208 human rights discourse: Interhandel case, 93–4 and cosmopolitanism, 219 International Convention on the Rights enemy of women’s progress, 1–26, of the Child: 224 and India, 209 and Enlightenment, xiii and Ireland, 151 ethics of care, 2–12 and Pakistan, 184, 186 feminist shift away from universalism, reservations, 46–7, 104–5 87 International Court of Justice: Gilligan, 2–3 Interhandel case, 93–4 Ireland, 129–38 and reservations, 92 MacKinnon’s radical feminism, 12–16 and state sovereignty, 96 Pakistan, 168–9, 181–8 International Covenant on Civil and human rights law see international Political Rights: human rights law and Ireland, 152 Hume, David, 4 reservations, 104, 113 Hungary, 94 Sandra Lovelace case, 82–3 International Criminal Court, 106, Ikramullah, Begum, 186 152–3 India: international human rights law: All-India Muslim League, 175 Benhabib, 74–80 All-India Muslim Personal Law cosmopolitanism, 74–80 Board, 200, 202–3, 205, 213, 216 and discourse ethics, xviii–xxii, 74–86 background, xxvi–xxvii and feminist writings, 219–20 and CEDAW, 103, 113, 193, 208–9, just multicultural arrangements, 80–6 211, 215 origins, 13 Christian marriage, 207–8 Rawls, 46 colonial rule, 195–9 reservations see reservations and CRC, 209 ‘troubled legacies,’ 23 Danial Latifi case, 53, 204–7, and war on terror, 190 209–11, 213, 215, 216 western values, xxiii dual track approach, 195, 207, 210, International Labour Organisation, 98 213 international law: feminist strategies, 194–5, 195–202 object and purpose test, 91–3, 95, Fire (film), 64 97–8 gender equality, 193–217 and Rawls, 50–5 Hastings Plan, 171, 197 state-centred conception, 76, 97, 164 Hindu Right, 194, 204, 208, 214 and Rawls, 50–1 and US Christian Right, 138 Golden Rule, 33–4 Gregory, Lady, 120–1

Index International Law Commission, and reservations, 92, 94–7 international trade law, 79 Iqbal, Mohammed, 171 Ireland: 1916 Proclamation of Independence, 120, 126 1922 Anglo-Irish Treaty, 120, 122 abortion debate, 142–56, 160–1 adoption, 130 asylum seekers, 152 background, xxiii–xxv and Beijing Declaration, 154 C case, 148 Catholic Church, 117–19, 122–5, 150, 152, 156, 158 Catholics for a Free Choice, 110, 161–2 and CEDAW, 129, 135–6, 151–4, 161–2 Celtic Tiger, 137, 145, 157 citizenship rights, 133–4, 155 civil partnerships, 135 conservative constitutional ethos, 117, 119, 122–4, 125, 134 Constitution Review Group, 129, 134–5, 139, 147–8, 160 deportation, 150–1 divorce, 131–3 ECJ jurisprudence, 143–5, 161 and European Union, xxv, 137–8, 142, 145–6, 150 family law reform, 129–35 family values, 117–40 from ethnos to demos, 156–63 Gaelic League, 121 gender differences, 125, 130–1, 138–9 Human Rights Commission, 135 human rights discourse, 129–38 and ICC, 152–3 International Human Rights Law treaty ratifications, 151–2 Irish Family Planning Association, 153 joint ownership of homes, 127 Maastricht Treaty Protocol, 145–6 National Women’s Council of Ireland, 136, 138–9, 160 nationalist ideology, 118, 120–5 Neart, 136–8, 152, 154 and Northern Ireland, 132–3, 141, 157

257

pluralism, 119, 147 Pro-Life Amendment Campaign, 142–3 protection of marriage, 124, 134–5 Public Policy Research Institute, 133 reproductive rights, 141–65 sexual minorities, 130–1 Sinnott case, 127–8, 139 women in the home, 125–9, 134, 135–8 women’s constitutional duties, 8, 117 women’s exclusion from public sphere, 125 women’s franchise, 121–2 Irigaray, Luce, xiv, 22 Islam: and CEDAW reservations, 89, 102–3, 112 egalitarian traditions, xxvi, 106–7, 110 gender equality, 190–1 and India, 200–2, 205–6 interpretations of Shari’ah, 182, 201–2 Pakistan, 167, 169–81, 185, 189 Shari’ah (Muslim Personal Law), 48, 170, 174–7, 200–2 v social taboos, 190 Israel, 102–3, 113 Jehangir, Asma, xxvi, 187 Jilani, Hina, 187 Jinnah, Mohammed Ali, 169, 172 John Paul II, Pope, 106 jouissance, 24 justice, ethics of justice, 2, 7, 11 Kant, Immanuel, 29, 45, 54, 70, 75 Kapur, Ratna, xvi, 196, 198, 210, 219 Khan, Arif Mohammed, 203 Khan, Zafrullah, 172 Knights of Colombanus, 132 Knop, Karen, xvii, 76, 83–4 Koskeniemmi, Martti, 78, 220 Kuwait, 102, 104, 113 Kymlicka, Will, 9, 69, 84, 86, 105, 212 Lacey, Nicola, xiv, 6 Latifi case, 53, 204–7, 209–11, 213, 215, 216

258

Index

liberalism: amending, 39, 57, 59–68, 221 defensive liberalism, 215 Enlightenment roots, 70 facts and norms, 224 false universalism, 16 Gewirth, 27–39 and human rights law, xxiii, 13, 23 Nussbaum, 59–68, 221 Rawls, 26, 41–57, 63–4, 69, 71, 80, 139, 159, 195, 221 tradition, xix–xxi Libya, 112 Locke, John, 29 Lovelace case, 53, 81, 82–4

public/private divide, 63–4 and Rawls, 41, 44, 66, 67 on religion, 55, 215 Obiora, Leslye Amede, 223 Okin, Susan, 4, 23, 42, 45, 49, 84–5, 87, 209, 215 Olsen, Frances, 17, 56, 76 Opus Dei, 132–3 Orford, Anne, 223–4 Otto, Diane, xvi, xvii, 85, 107–8, 219–20 overlapping consensus, 41, 44–50, 64–7

Pakistan: anti-colonial movement, 171–2 background, xxv–xxvi McIntyre, Alisdair, 74 case law, 179–84 MacKinnon, Catharine, xviii, xix, 1, 4, and CEDAW, 102, 184–9 12–16, 25, 28 chador aur chardiwari, 170, 177 Mai, Muktar, 188 Commission on Marriage and Family Manji, Ambreena, xvii Relations, 201 Marx, Karl, 43 conflicting claims, 181–8 Marxism, 15 and CRC, 184, 186 Mauritania, 104 customary law, 174–5 McQuaid, John Charles, 126 family relations, 170, 172, 177–88 Mernissi, Fatima, 110 feminist strategies, 168, 184 metaphysics, death of metaphysics, 16 from ethnos to demos, 168–9 Mill, John Stuart, 45 gender equality, 167–91 Minow, Martha, 10–12, 17, 19, 27, 33 Hastings Plan, 171, 174 Mohanty, Chandra, xv honour crimes, 183, 186–8 Morris, Jenny, xv Hudood Ordinances, 177–80, 186 Morrocco, 105 Human Rights Commission, 189 Musharraf, General, 181, 189 human rights discourse, 168–9, Muslims see Islam 181–8 Islam and Constitution, 167, 169–74 nationality, CEDAW, 103 Islamisation period, 177–81, 185 Neart, 136–8, 152, 154 modernising agendas, 169 Nedelsky, Jennifer, 63, 71 nation-building, 167–8, 172 Nehru, Pandit, 198 Objectives Resolution, 179 neo-pragmatism, 17–19 public/private sphere, 171–2, 174–7, Netherlands, 94 187 Nicholson, Linda J, 18 rape, 178, 188 Noddings, Nel, 63 refugees in UK, 189–90 Norway, 94 religious-cultural claims, 168, 170 Nussbaum, Martha: Saima Waheed case, 181–2 amending liberalism, xx–xxi, 39, 57, Shari’ah (Muslim Personal Law), 170, 59–68, 221 174–7, 189 economic and social rights, 79 treaty reservations, xxvi human capabilities approach, 60–2 women in parliament, 189 limits of overlapping consensus, 64–7 Zina Ordinance, 178, 181 political liberalism, 67 Parekh, Bikhu, 72, 211 political rights, 66 Pellet, Alain, 96 on prostitution, 61

Index Phillips, Anne, 54, 62, 67 Pius XI, Pope, 126 Poland, 94 post-modern feminism: assessment, 25 Cornell’s ethical feminism, 22–4 deconstruction, 22–4 generally, xix, 16–24 neo-pragmatism, 17–19 post-structuralists, 19–21 relativism, 16–17, 22 post-structuralists, 19–22 privacy rights: right to bodily integrity, 142, 162 sexual orientation, 131 prostitution, 61 public/private divide: Benhabib, 55, 72, 76, 221 and CEDAW reservations, 89–90, 102, 106 India, 193–4, 196–7 Ireland, 117, 121, 125–9 Nussbaum, 63–4 Pakistan, 171, 172, 174–7, 187 Rawls, 102, 147, 164 Radin, Margaret, 17–18 rape, 178, 188 Rawls, John, xix–xxi assessment, 55–7 Difference Principle, 44 economic and social rights, 79 feminist concerns, 25–6 generally, 41–57 international law and domestic jurisdiction defence, 50–5 Law of Peoples, 50–5, 105 liberalism, 26, 41–4, 63–4, 69, 71, 80, 139, 159, 195, 221 and Nussbaum, 66–7 overlapping consensus, 41, 44–50 public/private division, 102, 147, 164 shift from universalism, 39, 41–2 Raz, Joseph, 62 Refugee Convention, 190 refugees, Pakistani women in UK, 189–90 religion: Catholics see Catholic Church and CEDAW reservations, 89, 102–3 Christian right, 138, 140, 152–5, 158, 160 discriminatory religions, 36–7, 48

259

Gewirth, 36–7 Hindu Right, 194, 204, 208, 214 Islam see Islam Nussbaum, 215 personal laws see India; Pakistan Rawls on, 49 religious-cultural claims, 174 and treaty reservations, 105, 111, 113 reproductive rights: Catholic Church, 48, 142, 155 Chile and Argentina, 113 Ireland, 141–65 reservations: CEDAW, xxii, 37, 87, 89–91, 98–107 defence of culture, 107–10 dual-track approach, 111–14, 222 and feminism, 107–10 generally, 89–115 Geneva Conventions, 94 Genocide Convention, 92 International Human Rights Law treaties, 37, 46–7, 87, 104–5 object and purpose test, 91–3, 95, 97–8 orthodox response, 91–9 postcoloniality, 90 reasons, 89–90 and religion, 111 UN Human Rights Committee on, 95–7, 104 and Vienna Convention 1969, 91, 93 Rhodes, Deborah, 15 Richard, Joel, 138 right to family life, 130, 132 Romania, 94 Rorty, Richard, 5, 6, 19, 32, 78, 110, 220 Ruda, José María, 93 Rwanda, 109, 162 Sandel, Michael, 9–10, 74 Sangari, Kum Kum, 197, 204 Sardar-Ali, Shaheen, xxvi, 110 Sarif, Nawaz, 180 Sarwar, Samia, 187 Saudi Arabia, 101–2 Sellars, Patricia Viseur, xvii sexual orientation, xv, 64, 130–1 Shachar, Ayelet, 70, 170, 210, 213–14 Shah Bano case, 53, 65, 193, 195, 199–207, 209–14, 215–16 Shahid, Farida, xxvi

260

Index

Shaw, George Bernard, 33 Sheehy-Skeffington, Hanna, 126 Shklar, Judith, 48 Singapore, 113 Sinnott case, 127–8, 139 solidarity, 6, 32, 43 Soviet Union, 93–4 Spivak, Gayatri Chakravorty, xxviii Squires, Judith, xvii Stark, Barbara, 110, 220 state sovereignty, 42, 52, 55, 96, 102 subject: death of subject, 16 post-structuralists, 19–20 Sudan, Darfur, 109 Sweden, 94 Switzerland, 94 Tagore, Rabindranath, 10, 65 Taleban, 46, 170, 180, 184 Thackeray, Bal, 204 Trinidad and Tobago, 95 Turkey, 94

Spanish language rights, 23 and UN HRC, 95 Universal Declarations of Human Rights: 50th anniversary, 7–8, 97, 99 Declaration of Human Responsibilties, 7–8 universalism: Benhabib, 68, 69–87 CEDAW Committee, 106–7 and discourse ethics, 70–4, 222–3 and ethics of care, 7 and feminism, xiii–xviii, 25, 219–24 and gender hierarchies, 24 Gewirth, 28 India, 198 Nussbaum, 59–68 pseudo-universalism, 16, 109 women’s rights treaties, 99–100 unmarried fathers, 130 Vatican, 106, 122, 137, 156 Vienna Convention on the Law of Treaties, 91, 93–4 Vienna Declaration and Programme of Action 1993, 99–100

Ukraine, 94 UN, 76, 77 UN Human Rights Committee: Waheed, Saima, 181–2 and Ireland, 136, 152 welfare state, 37–8 and multiculturalism, 83–4 welfarism, 66, 80 and reservations, 95–7, 104 UNDP, Human Development Index, 62, West, Robin, 22, 51 Williams, Patricia, 17 67 World Institute of Development United Kingdom: Economics Research (WIDER), reservations, 94, 104 60, 62 and UN HRC, 95 WTO, 79 United States: and CEDAW, 89–90 Yeats, William Butler, 120–1, 220 Christian Right, 138, 140, 160 Young, Iris, xiv, 19–21, 41, 44, 90, 118, constitutional freedoms, 9 220 and Geneva Conventions, 94 identity politics, 36 Zia ul-Haq, General, 170, 177, 178–80, Roe v Wade, 140, 142, 160 184 Santa Clara Pueblo case, 81–2