‘Is multiculturalism bad for women?’ The challenge for feminism and family law
This chapter does not try to answer the question ‘Is multiculturalism bad for women?’ Instead, it explores the implications of this debate for feminist theory and family law. Recent developments confirm that feminists working in the area of family law need to take this issue seriously. Legal problems arise in areas such as divorce and the protection of children which force us to ask questions about how law should respond to claims of cultures and religions. The ‘Sexual and Cultural’ Research Project at the London School of Economics sets out the considerable number of British cases where there is a conflict between sexual and cultural, racial or religious equality. A review of this database of cases confirms that this issue has considerable implications for family law. For example, a number of the cases and policy initiatives relate to forced marriage. The cases on forced marriages arise not only in criminal law proceedings but also in wardship proceedings in the family courts and petitions for the annulment of marriages. Other cases relate to divorce or the dissolution of marriages. Problems about the status and suitability of traditional norms have arisen in cases where the parties (often members of religious minorities) have chosen to submit to foreign jurisdictions in preference to English law in the regulation of divorce. These conflicts can also arise in those cases where there are two types of marriage: first, an English civil marriage and a second, cultural or religious ceremony. Subsequently, some minority women have resorted to forum shopping, challenging inequitable foreign divorce rules in favour of English law relating to divorce.
Difficult questions also arise in cases involving the upbringing of children where the child or the parents are from a traditional culture or religion. The possibility that traditional practices may cause harm to young girls makes this a particularly important issue for law and policy relating to children. Young girls are vulnerable to harmful traditional practices within their cultures for two reasons: because of their sex and because of their age. Of course, parents are rightly concerned about the environment in which their children are raised, but can they impose practices on their young female family members that may cause these children harm? John Eekelaar has recently discussed this issue and concluded:
Perhaps we should acknowledge that, at least normally, (that is outside cases of
persecution), communities may have no specific interests as communities. Their
individual members most certainly do, and this includes the interest in passing on their culture to their children. But that interest is limited, and it is limited first and foremost by the interests of the communities’ own children.
As well as resorting to family courts within the mainstream legal system, minorities are also making claims for separate family law tribunals that can govern civil law disputes for minorities. The recent experience of Canada is a good example of the way in which claims of traditional minorities have moved beyond abstract political demands to become a legal reality. Ontario’s Arbitration Act 1991 allows the use of alternative dispute resolution procedures to resolve personal disputes in areas as diverse as wills, inheritance, marriage, remarriage, and spousal support. This legislation allows individuals to resolve civil disputes within their own faith community, providing all affected parties give their consent to the process and the outcomes respect Canadian law and human rights codes. The use of separate tribunals is a real rather than a theoretical possibility in Ontario, where groups from religious minorities such as Jews and Muslims have indicated their preference for resort to traditional religious justice to resolve family law disputes.
It is understandable why traditional minorities will choose to focus on family law when they make claims for accommodation. Family law governs some of the most private and intimate aspects of who we are, and it relates to our personal identity in the most profound way. It therefore seems appropriate to allow citizens in a liberal democracy to reach an agreement about the rules that will govern these aspects of their life. The problem for feminists becomes most acute when there are claims by not only men but also women from traditional cultures that they prefer traditional legal rules to govern their private disputes. If all persons, and women, freely choose to be governed by a traditional justice system – the argument goes – then there seem to be no conclusive reasons why the state should not respect these choices. This is – at first sight – an attractive argument. However, feminist theory has taught us to be vigilant about the automatic acceptance of claims of the ‘free choice of women’ without asking further questions about context: ‘which women’; ‘when’; ‘how’; ‘under what personal, social, economic or political conditions?’ Once we undertake this more detailed analysis it becomes clear that the argument moves too swiftly from ‘free choice of minority women’ to a separate system of family law. Most significantly, such a quick analysis pays insufficient attention to the myriad ways in which granting control over family law to a traditional culture or religion has the potential for causing harm to vulnerable group members such as women.
Feminist theory also encourages us to undertake a deeper analysis of social practices to reveal the distinct impact that they have on women. This should immediately alert us to the more subtle reasons why family law and women have become a focus – sometimes an obsession – for traditional groups concerned with the preservation and transmission of their culture or religion. Women are always at the forefront of attempts to re-create collective identity because they reproduce and socialise future members of the group. Therefore, controlling with whom and on what terms they should undertake their child-bearing and child-rearing functions becomes an issue not only for individual women, their partners and families but also for the wider community. From this perspective, it becomes a critical matter that women should enter into their most intimate relationships and functions in a way that preserves the membership boundaries and identity of the whole community. For all these reasons, the control of women – especially in areas such as sexuality, marriage, divorce and in relation to their children – is a recurring feature of traditional cultural and religious communities. Women are also often given the status of passing on the particular collective history of the tradition and its social, cultural and religious norms to the next generation. Women become a public symbol of the group as a whole. This explains why traditional communities focus on family law when they demand accommodation. These groups draw on multiculturalism in support of their political claims: they insist that they, rather than the liberal state, should have exclusive jurisdiction in these key areas.
Simply citing multiculturalism in defence of these claims by traditional groups cannot be the end of the matter. One of the most powerful arguments for multiculturalism is that there are power hierarchies between minority groups, majorities and the state that should be re-negotiated. However, this recognition of external hierarchies should not blind us to the fact that there are also power hierarchies within groups. These internal inequalities of power may cause vulnerable individuals, such as women and children, to bear a disproportionate burden of any policy of accommodation of cultural or religious practices. The resulting costs can include entering into a marriage without the right to divorce; inadequate financial compensation in the case of divorce; giving up the right to custody over children; restriction on the right to education, employment or participation in the public sphere; giving up the right to control over their bodies and reproduction.
It is often argued that many women choose to remain members of a group despite the fact that traditional rules and practices undermine their interests. ‘They have a right to exit but they freely choose to remain’ is the response to any challenge. But this ‘right to exit’ argument is not a realistic solution to the problem of oppression within groups. It offers an ad hoc and extreme option to what is often a systematic and structural problem within traditional cultures and religions. It puts the burden of resolving these conflicts on individual women and relieves the state (which has conceded jurisdiction in this area to the group) of responsibility for the protection of the fundamental rights of its citizens. Most significantly, the right to exit argument suggests that an individual woman at risk from a harmful practice should be the one to abandon her group membership, her family and community. The complexity of the choices that women face in these circumstances makes it more likely that they will continue to consent to practices despite the fact that they experience harm. This internalisation of harmful practices is exactly what exacerbates women’s vulnerability in these contexts, and we owe feminist theory a great debt for revealing that women can develop a false understanding of their own best interests, and that consciousness raising is an important task for those concerned with the defence of the rights of women. In the ‘multiculturalism and minority women’ debate, the stark fact is that emotional attachment, economic circumstances and sometimes religious commitment makes the ‘right to exit’ not only an unrealistic but also a tragic choice for many women from minority communities.
There will be significant diversity in the responses of minority women who are faced with harmful practices within their own communities. In this context, it is worth remembering that not only are ‘minority women’ not a monolithic group, but also that there is variety within the category ‘women’. This insight is more likely to ensure that our analysis does not distort the choices of minority women. Theory must also be alert to the fact that although women’s membership of a cultural or religious group may provide a useful marker of their preferences, it cannot be allowed to pre-determine the complex possibilities for belief and action available to them. In the face of oppressive practices within their group some women will choose to leave altogether. Of course, they should be assisted if they make this decision and exercise their ‘right to exit’. These are not, however, the hard cases. It is much more difficult to know how to respond to those women (probably the majority) who choose to remain ‘insiders’ within cultures and religions which do not always give them power, safeguard their interests or allow them full participation as equals. This is perhaps one of the most perplexing aspects of the behaviour of minority women that confuses contemporary feminists.
There is rarely one right answer to such complicated personal choices. Some women may choose to remain silent despite the injustice in their communities. Others may seek to challenge the dominance of certain ‘interpretations’ of their traditions that are a source of their oppression. For example, certain traditions within Islamic and Jewish family law give men the right to unilateral divorce but make the right to a divorce for a woman conditional on the consent of her husband. One consequence of this is that, where the husband refuses to grant a divorce, Muslim and Jewish women have to obtain an annulment from traditional religious authorities: called khula (in Arabic) for Muslim women; get (in Hebrew) for Jewish women. Rather than bypassing the traditional religious rules altogether and seeking dissolution of the marriage via secular legal authorities, some Muslim and Jewish women may choose to continue to seek redress using traditional forms of justice whilst at the same time pressing for a change in the way in which their religion interprets the rights to divorce. As Shachar argues, the state can assist these women in this struggle by providing incentives and safeguards for individual rights.
Of course, all women will immediately recognise that collective units such as the family can often oppress women. Feminists are familiar with the argument that vesting rights in the family does not safeguard the interests of women and that the grant of individual civil and political rights to women has been an invaluable strategy in challenging the oppression of women. Yet, at the same time, there is considerable agreement that the understandable status of individual rights needs to be offset against the importance of group membership (in a family and wider community) for minority women, which is a critical aspect of their self – definition. However, this analysis need not collapse into a zero-sum game between individual and group rights. One of the great errors of some forms of multiculturalism, just like familism, is the assumption of essentialism of groups: the claim that it is possible to identify one fixed definition of a tradition or culture, or religion or family. Any complex group contains not just one but a plurality of ideas and arguments. Some of these voices are backed by existing power structures whilst others are relatively silent and do not have access to public space. It should not surprise us to learn that very often those who purport to speak on behalf of traditional cultures or families do not represent the interests of women.
This conflict is not just a quarrel between minority women and their communities. It is also of vital concern for the state and for outsiders who are not members of these communities. Most pointedly, feminists must give this issue priority. Questions about how minority women should respond to harmful practices within their own groups, and how other women can support them in this struggle, should be of critical concern to feminism. If complex traditional groups contain within them a plurality of ideas and arguments, then women who are insiders within these groups have some space for resistance against the dominant interpretations of the groups’ practices. This struggle bypasses the tragic choices involved in ‘exit’ from the group. It is also exactly the sphere in which minority women can and should expect support – intellectual, political and practical – from other women. A sensitive understanding of the concerns of minority women can assist in this delicate task of political advocacy. Once we move beyond the assumption that ‘exit’ is the only legitimate response of minority women who face injustice within their communities, then it becomes clear that the challenge is to strike a balance between showing solidarity for minority women whilst at the same time maintaining a critical perspective. This less extreme response would accept that partial recognition of a traditional group does not require the wholesale uncritical acceptance of all its practices.
In the concluding comments in this chapter, I will suggest that we need to reach some consensus on the foundations for feminist theory. At this point, I want to stress that clarity and articulacy about these foundations are invaluable assets for minority women themselves. In fact, one of the most significant contributions that outsiders can make is to ‘hold the line’ by using key principles such as autonomy as the basis for a detailed and constructive critique of traditional communities and their family practices. Insiders, minority women, can turn to this critique as a precious source of information and ideas to inform their tradition, which often contains within it the resources to allow them to challenge injustice and oppression within their own communities and families. Similarly, insiders will also be able to appropriate legitimate arguments from outside their own tradition and use the experience and ideas of Western feminism and other political movements to make demands for dignity and justice. Western feminism has made an outstanding contribution towards securing dignity for women. It also has an understandable and healthy scepticism about traditional group practices, particularly in the family context. It is therefore lamentable when this constructive analysis collapses into the view that minority women must shed all their group affiliations before they can be considered legitimate partners in feminist, or indeed any, intellectual and political movements. This is a significant barrier to minority women establishing alliances – feminist alliances – that would assist them in the Herculean task of challenging the power of men within their own communities.
There are other arguments against an ‘all or nothing’ approach. Insisting that all traditional groups are misogynistic and patriarchal – whether or not this is true – will cause us to miss those areas in which there is internal resistance to the oppression of women. This is likely to put minority women on the defensive by reintroducing the stark dilemma of ‘your rights or your culture’. Multiculturalism draws its strength from the idea that membership and public recognition of a cultural or religious group can be a source of individual well-being. In addition to this point of principle, there is also a strategic argument against such a wholesale rejection of traditional practices. Vehement and indiscriminate attacks on traditional practices may make a community group defensive, thereby weakening the position of minority women in their attempts to launch an internal challenge to harmful practices. It is essential that minority women are given an opportunity to formulate a criticism of their practices from within their own tradition. Minority women have the potential to be the most effective and devastating social critics of the traditional practices that harm them. Their knowledge and experience – and ability to speak the language of the group – give them an authority that cannot be replicated by outsiders. Taken together with the previous argument that ‘outsiders’ can offer an invaluable critique of social practices, this analysis supports the view that there is a need for alliances – feminist alliances – between all women. It also reinforces the point that feminist theory and practice must give priority to understanding and accommodating minority women. The real challenge is to be able to find a place for the experience of minority women within ‘traditional’ feminist theory: ‘Experience is, in this approach, not the origin of our explanation, but that which we want to explain.’