Revisioning the Role of Law In Women’s Human Rights Struggles

Revisioning the role of law in women’s
human rights struggles

Ratna Kapur

The demand for human rights law has been a cornerstone in the international movement to empower disadvantaged groups and individuals since the middle of the twentieth century. Women’s groups, social justice organizations, the human rights community and other progressive movements have all fought for the recognition of human rights in the legal arena at the domestic as well as international level. These movements have challenged laws that discriminate against or exclude individuals and groups, such as women, blacks, sexual and religious minorities, and have made demands for the protection of human rights through law central to the pursuit and realization of justice, freedom and emancipation. In many ways these demands for human rights have given human rights law a political character. Many of the political campaigns for human rights have been successful in so far as states have been forced at times to respond by enacting new legislation to support and promote the human rights of a diverse array of communities and individuals. The Convention for the Elimination of All Forms of Discrimination Against Women (CEDAW), has been directed at the eradication of discrimination against women and the promotion of the right to equality for all, regardless of sex and gender. Similarly, the Convention on the Elimination of All Forms of Religious Discrimination (CERD), has been adopted by some nation states to eradicate racial discrimination in all its forms, again in the name of pursuing the right to universal equality. While specific laws have been enacted by different states pursuant to these conventions, the important fact is that law has been reformed in response to the demand from the human rights community for change.

Yet despite these legal victories over the years, the social, political and economic status of many human beings has shown remarkably little improvement. There is extensive evidence for example that despite the responses of the United Nations and nation states to the problem of violence against women over the course of the past decade, rape, domestic violence and trafficking persist in the face of legislation designed to eliminate these practices. Similarly, the adoption of CERD has not arrested the problem of discrimination against ethnic and racial minorities. These legal initiatives have not alleviated the socio-economic inequality which has persisted in the face of the broad range of legislation intended to improve the status of racially marginalized communities. The gap between formal rights and the actual status of disadvantaged groups has not decreased as a result of the legalization process.

Despite the evidence that human rights law has not necessarily brought about effective improvement in the situation of different disadvantaged groups, human rights groups, individuals, and those concerned with social justice have continued to turn to law time and again to secure human rights as well as to address human rights violations. In many ways law has played a central role in the struggles of disempowered groups for their human rights, and given these movements their political and discursive character. At the same time, many within these movements have expressed at least some degree of ambivalence on whether human rights law can bring about effective social change and realize its promise of justice. For some, the problem is one of enforcement and access to human rights law. Others suggest that human rights law alone may be unable to eliminate injustice and inequality. Yet others have begun to suggest that the problems are more structural, that is, human rights law is informed by and serves to reinforce and entrench assumptions about difference, including gender, racial, religious or sexual difference.

In this chapter, I examine how the ‘legalization of human rights’ being pursued in the name of protecting women’s human rights, may at times be hurting the very subjects for whose benefit it is intended. I focus specifically on the legal project, that is, the enactment of laws at the national level as well as the adoption of treaties, resolutions, protocols, and declarations in international forums designed to give legal effect to the demand for and recognition of women’s human rights. Many of these legal initiatives have been taken ostensibly in the interest of protecting women, out of concern for the abuse, exploitation, or victimization they have experienced in both the public and private spheres. Yet an interrogation of the assumptions on which these laws are based, exposes how such laws may at times aggravate the problem rather than provide a resolution. I illustrate my argument by focusing specifically on the proliferation of law in the area violence against women as well as trafficking of women and how laws have not had entirely beneficial effects for the promotion of women’s human rights. The discussion reveals how human rights law must be subject to deep interrogation and a more sophisticated analysis developed to capture its complex and contradictory role in struggles to improve the situation of women. I argue that law cannot be posited simply as an instrument of social engineering nor of liberation, but it must be understood as a complex and contradictory force. I draw on postcolonial and postmodern feminist theory to interrogate the process of subject constitution as well as the assumptions about difference, and the ‘other’ on which the legalization of human rights in the context of women is at times based and argue that human rights law should be revisioned as a site of discursive struggle where competing visions of the world and assumptions about gender, difference, culture and subjectivity are fought out.

Law—a complex and contradictory discourse

In this section, I discuss how law is a complex and contradictory discourse. By complex and contradictory, I mean to suggest that human rights law’s relationship to injustice and oppression is not always the same. Human rights law does not always operate in the same way nor always produce consistent results. Those who bring more resources and less vulnerability to the law will be able to reap greater benefits from it. At times, the process of legalization of human rights has reinforced the subordination of the ‘victim’ of human rights violations, by reinforcing assumptions about difference—including gender and cultural difference. At times human rights law has also been an important source of resistance and change.

I use a postcolonial and postmodern feminist analysis to help illuminate how law operates as well as its implications for women’s human rights. Postcolonial feminism is an emerging area of scholarship that seeks to account for women’s conditions of subordination within the conditions of postcolonialism (Otto 1996; Rajan 1995; Mohanram 1999; Mohanty 1991; Narayan 1997; Spivak 1988; Weedon 1999). 1 It is a heterogeneous project which precludes any formulation of a grand theory. Its commonality lies in providing a critical and necessary challenge to explanations about women’s subordination that have been furnished by liberal and ‘Western’ feminist positions, especially those that have come to occupy the international human rights arena in their understanding and articulation of concerns of ‘Third World’ women. Postcolonial feminism furnishes the tools for exposing the imperial and essentialist assumptions about the ‘Third World’ woman and culture and a reliance on a centre-periphery model of world culture that have come to inform legal responses to women’s human rights concerns (Kapur 2005). It not only challenges the ‘us and them’, ‘here and there’ divide along which liberalism and ‘global feminism’ has operated. It also challenges attempts to universalize women’s experiences primarily along the lines of gender, which perpetuate the exclusions that have been the hallmark of ‘universalizing strategies’ since the colonial encounter. It thus raises questions about the appropriateness of universal rights and the ability of law to deliver on its promise of justice given that subjects are not equally situated. Strategies that celebrate some notion of ‘global sisterhood’ or argue that all women are similarly oppressed, obscure the universalizing and hegemonic moves on which such claims are historically based, perpetuating at times the exclusion of the very constituency they claim to represent, through cultural, religious or sexual ‘othering’. The search for universal solutions to women’s concerns through law continues to ignore the significance of the colonial encounter on the situation and understanding of women in the postcolonial world and also how their struggles for rights are tethered to the legacy of this encounter in the contemporary moment.

Postmodern feminism also eludes any simple or singular definition. The various strands, however, all share a common object of critique of the basic philosophical tenets of the Enlightenment—rationality, objectivity, and subjectivity. It rejects the concepts of objectivity and neutrality, insisting instead that knowledge is a product of perspective and thus always partial. It similarly rejects the Enlightenment’s understanding of subjectivity, that is, of an individual subject that exists prior to its interaction with the society around it: a stable, coherent, self-constituting subject. 2 Postmodernism argues that the subject does not exist prior to language or discourse, but rather, is produced through discourse. It proposes a subjectivity which is precarious and contradictory, which is constantly reconstituted (Weedon 1987:3). And it is precisely the way in which subjects are constituted in and through multiple and contradictory discourses that creates space for agency. The subject negotiates her way through a multiplicity of discourses exercising reflection, choice, and action, although this agency is constituted and limited by her particular position within intersecting discourses. Postmodern feminism ensures that women’s oppression is not reduced to a singular or universal set of factors, but rather examines the multiple and shifting dimensions for women’s oppression.

Postmodernism enables us to analyze and understand law as a discourse as it highlights how power and knowledge is dispersed and deployed through law. Law is one of many discourses in and through which subjects are constituted. Although the subject is constituted in and through multiple discourses, law is a particularly authoritative discourse. As Lucinda Finley has argued:

Law can pronounce definitively what something is or is not and how a situation or event is to be understood. The concepts, categories and terms that law uses and the reasoning structure by which it expresses itself, organizes its practices and constructs its meanings, has a particularly potent ability to shape popular and authoritative understanding of situations.

(Finley 1989:888)

A discursive analysis allows us to explore law as a particular way of giving meaning to the world. A discursive analysis further allows us to connect law’s power with this construction of meaning. Carol Smart, for example, has argued that law’s power lies in its distinctive ability to define and pronounce authoritatively on the world around it. She argues that the law’s distinctive claim to truth in ‘setting itself outside the social order’ from where it can ‘reflect upon the world from which it is divorced’ gives law a powerful ability to disqualify opposing discourses (Smart 1989:11).

Law as discourse can also assist in understanding the way in which it constitutes subjectivity. Legal discourse constitutes subjects as legal citizens: as individuals with rights and responsibilities vis-à-vis other citizens and the state. This discourse is both universalizing and naturalizing—all legal citizens are the same, that is, they are equal before the law, and all legal citizens are natural subjects, that is, they are equal before the law. Law is simply seen to protect the rights of individuals who are seen to exist prior to their constitution in and through legal discourse.

However, the discourse of law is not homogenous. Legal discourse does not in fact constitute all legal citizens in the same way. Rather, legal discourse constitutes individuals as gendered subjects. It is partially constitutive of women’s identity. It encodes women with meaning, and rationalizes those meanings by appealing to natural differences between the sexes. These differences are in part produced by legal rules. Nor are all women constituted in the same way. Legal discourse also partially constitutes women’s racial, ethnic, religious and sexual identities. Sometimes these differences are explicitly inscribed in law and at other times these differences are obscured in law, as legal discourse assumes the homogeneity of all women and attempts to universalize a common gender identity.

Law is then an important site of discursive struggle. It is a terrain on which competing visions of the world are fought out; on which contesting normative visions struggle for the power to define legal and political concepts that give meaning to the world. It is neither the only site of this discursive struggle, nor is it in any way the primary site. It is a site among others, where this discursive struggle occurs. It is a place where contests over the meaning of equality and liberty are fought out and where dominant meanings come to inform human rights approaches. By understanding law as discourse, it is possible to understand law’s formidable power in constituting women’s gendered identities, while at the same time, search for ways to use this discourse to challenge those constructions. Law needs to be understood as a complex and contradictory discourse.

Legalization of women’s human rights

In this section I briefly illustrate the complex and contradictory results of the legalization of women’s human rights. The 1993 Vienna World Conference on Human Rights marked the culmination of a long struggle to secure international recognition of women’s rights as human rights. The conference was a turning point for both the international women’s rights movement and the human rights movement. The final document that emerged from Vienna acknowledged that, partly as a result of the artificial line drawn between the public and private sphere, certain gender-specific issues had been left out of the human rights arena (Charlesworth et al. 1991; Schneider 1991; Engle 1993; Romany 1993). Governments around the world acknowledged that women, too, were entitled to enjoy fundamental rights. These included full and equal participation in political, civil, economic, social, and cultural life at the national, regional, and international level. 3 In addition, the document brought about a significant change in human rights law: the recognition of women’s human rights in the private sphere. A broad spectrum of harms occurring in the sphere of the family have been rendered open to human rights scrutiny (Bunch 1990). 4 The document challenged the public/private distinction along which human rights had traditionally operated and increased awareness of the fact that power operates in multiple arenas.

The women’s human rights movement at the international and regional level as well as official recognition of women’s human rights has subsequently focused primarily on the issue of violence against women and their victimization in this context. Immediately after the Vienna conference, the UN General Assembly passed a Declaration on Violence Against Women. 5 The declaration stated that it would strengthen and complement the process of effective implementation of the CEDAW. It recognized that violence against women ‘is a manifestation of historically unequal power relations between men and women, which have led to domination over and discrimination against women’. It reiterated the consensus reached at Vienna: that violence against women covers ‘gender-based violence…whether occurring in public or in private life’. 6 In 1994, Dr Radhika Coomaraswamy was appointed as the UN Special Rapporteur on Violence Against Women. 7 She subsequently submitted a series of annual reports to the UN General Assembly addressing the issue of violence against women. 8 Even Recommendation 19 of the CEDAW, which deals with violence against women and is not binding, has achieved greater visibility after the Human Rights World Conference. 9

The focus on human rights law as the means to eliminate violence against women has had some extremely important and beneficial consequences for women. The women’s human rights movement has drawn attention to the lack of domestic governmental response to women’s demands for more effective rape laws, laws against child sexual abuse, and domestic violence laws. 10 The women’s human rights campaigns have been overwhelmingly successful in translating very specific violations experienced by individual women into a more general human rights discourse.

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