Wednesday, July 14, 2010

An Introduction to Muslim Feminist Law Reform Efforts, Part 3 of 3: Coda

Part One 
Part Two 

Part Three: Coda

When examining the relationship between equality rights and freedom of religion, one theme constantly reappears in a variety of manifestations: the public-private divide.

It is the public/private divide that associates women with the home, giving them symbolic cultural value while denying their individual worth and silencing their public voice.

When law in the public sphere was secularized, religion was relegated to the private sphere. This is reflected today in the fact that in several countries, though the laws in general are secular, religious law continues to govern the family.

By being associated with the public sphere, law became associated with rationality and politics, while in the private sphere, religion was associated with irrationality and immutable truth. To international law, religion is the “other” (Sunder 1402). Since religion is irrational, it cannot be reasoned, or logically critiqued. As a result, religious claims can be an effective shield against the applicability of international human rights law.

That claims of cultural relativism are easily accepted by many in the West can be attributed to the tendency of Westerners to feminize those from non-white majority countries. “Feminization,” naturally, involves attributing characteristics associated with women – and the private sphere – to entire groups of people – irrationality, and a committment to culture and tradition. This allows people in the West to readily believing that feminized “others” are governed by an unquestioning adherence to tradition; that their actions are determined by culture rather than by individual choice, while logic, and reasoned law, are claimed as Western.

The public/private divide is played out on every possible level – individual, national, international, and conceptual – and it is instrumental to sustaining the tension between human rights and religion. By being half of one of the binaries which supports the distinction between public and private spheres, human rights law is problematic in its own right – not the solution to the problem.

As Sunder notes, the Enlightenment did not reject religion, but relegated it to the private sphere, so that “freedom in public was freedom itself” (Sunder 1418). Since the public sphere is the realm of the masculine, and the private sphere that of the feminine, true gender equality will be elusive so long as guarantees of freedom are only available with respect to public life. The recognition of this fact is the major innovation of critical engagement (Sunder 1423). (While this insight has been recognized by Western feminists with the phrase, “the personal is the political,” Western feminists have typically not followed it to its conclusion with respect to the religious rights of non-Western women and international human rights). The questions that remain are how will international human rights law respond to this challenge? And, as a country that values both gender equality and religious freedom, and which adds to its Muslim population every year – how will Canada respond? Can this innovative new perspective on rights be incorporated into Canadian Charter and human rights law?

It would be difficult for Canadian law to adapt to the critical engagement approach's interpretation of rights. The grounds on which either the Charter or human rights legislation apply would be difficult to establish. The courts would also have to rethink the basic precept that they are not competent to adjudicate religious matters. Whether these hurdles can be overcome would very much depend on the facts a given case.

If so, then Canadian courts would have to reinterpret the right to religious freedom to include an individual right to participate in shaping their religion. This would require, in essence, courts to recognize a constitutionally protected right to be an accepted member of a religious community – the limits of which might be difficult to define. However, it would be essential that they do so. “Without a theory that recognizes contest within cultural communities, and the possibility of progressive change in the context of culture or religion, cultural dissent is either ignored or affirmatively shut down” (Sunder 1432).

At the same time, however, the logic of the critical engagement approach is not difficult to grasp, and the opportunity to resolve the apparent conflict between equality and freedom of religion may be appealing to judges. Any effort to transform legal thinking about religion and equality will be long and arduous. However, the current legal understanding can overlook the interests and perspectives of the very women who are most effected by the conflict between these rights – and that is no guarantee of equality at all.

Note: I own the copyright to this! I worked hard on it! If you want to quote it, limit the quote to a couple of sentences and link back to me!

Sources that are available online are linked. Articles that are only available from paid sites are labled with [H] for Hein Online and [L] for Lexis Nexus.


Ebrahim, Zofeen. “Women's rights delegates discuss fundamentalism in Asia” Inter Press Service (October 30, 2007).

Gray, Doris & Sinikka Tarvainen. “Moroccan women seek emancipation between Islam and the West” Deutsche Presse-Agentur (July 12, 2004).

Paulson, Michael. “Studying gender in Islam” The Boston Globe (November 24, 2001) B2.
Prazic, Ivana. “Islamic feminists work for just, fair marriage laws” The Jakarta Post (October 31, 2008). 

Sadr, Shadi. “Iran-rights: Shadi Sadr describes Iranian women's movement” WomensENews (May 26, 2004).

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