One alternative to traditional approaches in feminist theory is what we can loosely label post-modern feminist theory.[979] Post-modern feminism is especially useful in any attempts to accommodate the claims of minority women because it challenges assumptions about the definition and status of the subject ‘woman’, therefore providing room for alternative definitions and analysis. It also makes clear that definitions of identity – such as women, race or religion – are never merely descriptive; they are also normative categories that need to be challenged and reconstructed (‘resignified’ in Butler’s terms). In the present discussion about feminist theory, post-modern feminism’s insights into the way in which power (and politics) influences our choice of theory are particularly pertinent.[980] The methods and conclusion of post-modern feminism confirm the earlier criticism of ‘scientific feminism’ by acknowledging the uncertainty in basic categories such as ‘women’ and ‘their interests’ and ‘tradition’ and ‘culture’. In all these ways, post-modern feminism is invaluable to any attempt to analyse and accommodate the claims of minority women.

In the discussion that follows, many of the insights about theory are influenced by post-modern feminism. However, rather than explicitly making a choice between alternative ways of ‘doing’ feminist theory, I want to take a different approach. I do not want to set myself the impossible challenge of providing a conclusive answer on how we should theorise difference. Instead, I want to make a tentative gesture towards examining whether there are methods that can assist us in capturing the beliefs and experiences of minority women without distortion and misrepresentation. One way of making this issue more manageable is to reduce the methodological choices that we face to two contrasting models. Of course, such a reductive choice is vulnerable to the criticism that it is a caricature. At the same time, presenting the arguments in this way has a number of advan­tages. I hope that this contrast will make clear not only what, but more importantly just how much, is at stake in the initial choice of method. In addition, the reduction of complex positions to their simple end results will allow us to see that each of the models reflects ideas, presuppositions and debates which will be immediately familiar. The aim of this analysis, therefore, is neither to resolve the issue between post-modern feminism and its critics nor to provide one overarching theoretical approach. Rather, it is a more modest task of retrieval: what modifications do we need to make to the usual methods of feminist analysis so that we can better understand – and accommodate – minority women?

The first cluster of ideas, which I have loosely called ‘scientism’,[981] is similar in some respects to the ‘scientific feminism’ of approaches that have been criticised by Smart and Cornell. It has as its central presupposition the belief that the study of human practices can model themselves on the natural and physical sciences. It is partly summarised in the approach of certain writers such as AJ Ayer: ‘Just as I must define material things… in terms of their empirical manifestations, so I must define other people in terms of their empirical manifestations – that is, in terms of the behaviour of their bodies.’[982] There are a number of aspects of this approach which are important for an analysis of gender and minority women. The first is the belief that there must be a strict separation between fact and value: description of a social practice is one thing; its evaluation is something quite different. The second is the priority of the right over the good: the belief that human agency is about the capacity to create an identity through the exercise of radical choice, rather than about participating in any prior conception of the individual or com­mon good.[983] Third, the subject is abstracted from the context of decision making such as language, community and culture; identity tends to be interpreted as a ‘monological’ process. Thus, there is an atomistic treatment of human conduct: complex human actions are analysed in terms of their simple components. This ahistorical analysis emphasises the basic action as the proper temporal unit for the study.[984] The importance of the intentions, motivation and inner states of consciousness of the human agent is ignored, or at the very least marginalised.[985]

The techniques for analysis which this model advocates are description and observation. The theorist is encouraged to neutralise her own perspective and evaluative criteria before studying the subject matter. In this way, the subject matter is made more manageable: the focus is on qualities which are absolute and can be stated with precision; the theorist is necessarily forced to concentrate on the outward rather than inner dimensions of human conduct. A particular practice is described using accurate, certain and definite concepts, and in an all-or-nothing way. Finally, this positivist model is consistent with an understanding of language as an instrument for ‘designating’ existing subject matter and reality which exists ‘out there’.

I think it will be clear from the way in which I have presented the model that I do not consider it an attractive way to proceed, and nor do I find its assumptions concerning human agency convincing. Moreover, this method is inappropriate to address the central challenge of understanding minority women because it does not have the appropriate resources to allow description of, and qualitative distinctions relating to, inner states. These inner states – motivations, feelings and desires – cannot be stated with scientific accuracy or tested by the empirical tools of scientism.

Most importantly, this approach ignores the need for feminist theory to move beyond claims that it has access to one absolute truth and to accommodate the complexity of difference in the lives of women. Recognition of difference means that the focus of our enquiry – the lives and practices of women – is no longer homogenous or stable. Both Smart and Segal argue for a method that is willing to sacrifice some certainty and objectivity in favour of greater responsiveness to difference. Their approach comes closer to what I term a ‘human sciences’ approach that lies in contrast to the scientific feminism I described above. I do not want to undertake a point-by-point comparison of ‘scientific feminism’ and a ‘human sciences’ approach to feminism, but some contrast between the two is illuminating because it reveals the specific ways in which we need to modify feminist analysis to accommodate minority women in a way that takes experience and difference seriously.

The key distinction between the two models is that the human sciences approach takes as an essential principle the fact that human agency raises unique issues for method and analysis. This has a number of consequences for theory. First, this alternative approach challenges not only the validity but also the possi­bility of describing human conduct without first undertaking the difficult task of evaluation: that is, we cannot understand human action without first understand­ing the purpose pursuant to which that action was undertaken. Therefore, under­standing the point, value and significance of conduct as conceived by the people who performed those actions – and which are reflected in their discourse, actions, and institutions – is a key task for the theorist.[986] Second, any study of individual human conduct must also attend to the communal context of actions: for instance, language, community and culture, which mediates and is mediated by family, including affective ties and emotional, physical and economic hierarchies and dependencies. This means that individuals cannot be understood in an atomistic, all-or-nothing way; the exercise of freedom and choice by an individual must be understood in this wider context. Third, this different approach is less resistant to shifting the focus of analysis from the outward manifestation of human conduct towards inner states of consciousness. It is consistent with the view that an essential rather than contingent feature of human agency is that agents not only make choices about what they want, but also undertake a process of reflection about these choices, by ranking them against evaluative criteria. They undertake a process of self-interpretation to judge certain inner states as belonging to an integrated, and therefore more valuable, mode of life; and others as unworthy.[987] Purpose, intent, motivations and inner states necessarily require us to place these features within the context of the agent’s history, and social practices become intelligible only when understood as part of an ongoing tradition. The basic action gives way to a different temporal unit for analysing human conduct. Human action therefore needs to be analysed not as a static one-off event, but as part of a dynamic process. To paraphrase Alisdair Macintyre’s observations: human agency is ‘a quest – a narrative – a progression towards purpose and unity’.[988] Like post-modern feminism, this approach takes seriously the need to ‘situate’ women in a wider context for analysis.

These modifications will allow a greater focus on the purposes, intentions, motives of subjects. They will also take seriously the way in which historical and social contexts are important to the self-definition of women, their feelings and their choices. In this way, it is more likely that the experiences of minority women can be better articulated, understood and accommodated.

This alternative approach has important implications for our choice of method, concepts and language. Observation and description remain important devices, but the theorist has to start by undertaking the difficult task of identifying the good, point, value and significance which the subjects feel they are pursuing. Rather than mere description of outer action, this method gives a better under­standing of the subject from her own perspective. In this sense, it is an inter­subjective understanding rather than an objective description that is being forced from the outside.[989] However, this move from neutral universal description to inter-subjective understanding raises some intractable problems. How can an outsider to the tradition (race, culture or religion) accurately understand purpose and inner motivations? Are there any evaluative criteria by which we can judge these purposes and inner motivations as being better or worse; beneficial or harmful to women? There will be a wide variety of purposes and inner states of consciousness which will vary between minority women and within the indi­vidual lives of minority women. How can a method capture such unstable subject matter?

A non-distorted understanding of a tradition might come from women who are themselves able to recognise, appreciate and accurately describe the inner motivations of subjects, but at all times, analysis must align itself with the lived experiences of minority women, as they understand them. In a less formal sense, this idea is reflected in Iris Murdoch’s philosophical and fiction writing, which is a passionate call for our theorising to connect with essential features of our human experiences.[990] In the present context, paying attention to texts that have authority in the lives of minority women, and their own writing and literature, will be an essential task for any theorist who sets herself the task of making minority women’s inner lives more intelligible.

There remain more fundamental problems of ‘uncertainty’ which arise because attention to point, motivation and inner states of consciousness complicates the subject matter. These features vary between different persons and contexts; they can also vary considerably within the life of the same person over a period of time. Taking them into account makes the lives of women less amenable to study using descriptive and ‘all or nothing’ concepts. Conceptual devices such as the identification of the focal meaning or the ideal type of a traditional practice, which are then used as the basis for evaluation and analysing how and in what ways the current practice has become corrupted, become more useful.[991]

Other acute problems of uncertainty will arise in evaluating the lives of minority women. Recent post-modern scholarship tells us that this problem of ‘ethno – centrism’ arises whenever we seek to understand a tradition as outsiders by applying evaluative criteria which are external to that tradition. Feminist theory has taken both sets of issues seriously. Critics have argued that these approaches risk eliminating ‘normative philosophy’ from feminist theory. Benhabib, for example, argues that to move away from universal claims about the importance of equality as a universal value underpinning feminism is to throw away crucial foundations that are ‘the branch on which we sit’.[992] Butler replies that there is a need to challenge these foundations because power precedes theory, but argues that the resulting uncertainty need not collapse into nihilism.[993]

Their disagreement reflects the longstanding debate between post-modern feminism and its critics. Post-modern theory provides two interrelated ways of treating the problem of applying evaluative criteria by ‘outsiders’ to the prac­tices of ‘different insiders’. First, there are those – often relying on the work of Nietzsche and Foucault – who suggest that all criteria are ultimately a matter of ‘power’ and therefore refuse to use any standards for evaluation. Second, there are others who emphasise ‘diversity’ and suggest that the application of judgments is to do ‘violence’ – a term which Jacques Derrida uses – to the other, and shows a failure to respect the ‘difference’ of the other. In the present context of under­standing minority women, it is unlikely that refusal to apply evaluative criteria, for whatever reason, will be helpful. For minority women, especially for those who rely on traditional cultural and religious norms, it is of critical importance that they believe these norms to be objectively true criteria for making value judgments. Therefore, a proper understanding of these norms and their status in the life of minority women must take this fact seriously. In these circumstances, it is tempting to fall back on a descriptive method that is ‘neutral’ between truth claims. At least observation – and adopting a neutral ‘point from nowhere’ – has advantages because it allows us to bypass difficult questions of the choice of evaluative criteria. However, this model – as suggested above – is not ideal. The evaluation becomes obscure, but that does not mean that it is not operating.[994] In particular, this method will miss altogether purpose, motive, intention and sentiment, which are essential features for a non-distorted understanding of the other tradition. Therefore, a seemingly innocuous description results in distortion and misunderstanding.

This dilemma may be resolved – in part – by remaining committed to, rather than abandoning, the central requirements of the human sciences model. Hans Gadamer’s work reminds us that, in these contexts, we come to understand through an act of comparison which allows us to ‘place’ the different practice against a similar or analogous home practice. Attention to the purpose, intention and motivation which is necessary for us to make sense of our own practice also provides the basic modular frame within which the different practice is accom­modated and made more intelligible. Gadamer states: ‘Only the support of the familiar and common understanding makes possible the venture into the alien, the lifting out something out of the alien, and thus the broadening and enrichment of our own experience of the world.’[995]

The introduction of a method that makes comparison between the familiar ‘home’ understanding of a practice and the new ‘alien’ practice has a number of significant consequences for those involved in theorising difference. For observers, this requires moving beyond the dominant idea that ‘understanding’ is about reaching agreement on foundational arguments, which is an epistemology which is particularly attractive for scientific modes of thought. Once we start to move away from the assumptions of that model, we can start to see the way in which the idea of ‘understanding’ needs to be recast as a hermeneutic and relational process. On this analysis, the act of comparison of the practices and experiences of minority women with our home understanding carries within it the seeds of its own success.

Whereas previously the other practice may have been viewed as merely different, undertaking comparison in a self-conscious and formal context can be illuminat­ing; placing the different practice against an analogous ‘home’ practice which has point, value and significance within the life of the observer may allow a shift – albeit modest – in understanding.

The use of hermeneutic methods, in a comparative context of a theorist seeking to make the practice of minority women more intelligible, may also have some transformative potential in two important respects. First, most obviously, it can allow the ‘outsider’ theorist to gain a more accurate appreciation of the value of the practice and beliefs of minority women as they themselves experience them. Second, more subtly, it presents a formidable and intimate challenge to the theorist’s own perspective. This alternative approach uses a ‘home’ understanding rather than a neutral point from nowhere as the essential starting point for under­standing. It follows that success in this method will require the theorist to have a more accurate understanding of her own ‘home’ perspective: that is, she will need to review and re-examine her own commitments as a (possibly minority) feminist. Self-understanding and the ability to analyse these pre-existing commitments will be as important as objective observation and description. The theorist will need to remain open to the possibility of transformation: the study of minority women may lead to a change and shift in the fundamental criteria which are the starting point of her analysis.

There will also be important limits to this method. Most importantly, it could lead to the problem of the ‘hermeneutical circle’ into which all women cannot enter, because they are not able to share the ‘home’ understanding of the particu­lar theorist, and which cannot be broken because we have jettisoned the appeal to objective and neutral criteria. The method will work well in those cases where, despite difference, there remains a sufficient basis for some shared goals, attributes and experiences. It will not work as well where these criteria start to diverge significantly and it may fail altogether where there is a substantial chasm or binary opposition between the two world views: that of the theorist and that of the ‘different’ subject. Therefore, in some cases, the tradition or practice of minority women may be so alien and irrational that there is no possibility of any advance in understanding. One example of this may be the clash between a commitment to autonomy in the home understanding of the theorist and a minority woman’s insistence on adhering to a practice that causes her substantial harm. There are many practical examples of exactly these types of conflict: ranging from the extreme case of consent to female circumcision through to other examples such as voluntary veiling or gender segregation. In the family context, the Islamic and Jewish law practice of making a right to divorce conditional on the consent of the husband is an obvious example. When faced with these fact situations, the immediate response of the outside observer may be: ‘Why did she consent?’ In these cases, comparison between the theorist’s pre-existing commitments and values and the claims of minority women may not be illuminating. The ‘home’ understanding in these cases may be an absolute barrier to understanding. These practices will remain irrational and inexplicable to the theorist, as well as being accompanied by a judgment (using the home understanding as evaluative criteria) that they are wrong. Therefore, it could be argued that this approach will fail in exactly those situations where there is the most need to make the practices of minority women more intelligible.

This last problem sheds light on the limits inherent in attempts to move away from neutral objectivity as the preferred method for analysis. My argument suggests that the term ‘woman’ needs to be subjected to analysis to allow greater accommodation for minority women. The methods I advocate do not resolve all the issues, but they do provide one way of gaining a more accurate understanding of the claims of minority women from their own perspective. Further work needs to be done that allows us to delineate the issues with greater precision. Is differ­ence always relevant? If not, what are the circumstances in which we need to be specially vigilant about differences caused by race, culture and religion? We also need to ask ourselves about the status of traditional values in the lives of women and the limits of consent.[996] Is there a floor of individual rights which minority women cannot negotiate away?[997] Out of these enquiries we can start to develop a better theoretical understanding of the priorities – emotions, desires and choices – of minority women and whether, and if so how, feminist theory and family law can accommodate these aspects.

Feminism already contains considerable resources that allow us to develop an intelligent and sensitive response to many of these questions. For example, sophis­ticated concepts such as ‘autonomy’, ‘power’, ‘hierarchy’ and ‘false consciousness’ can be used, carefully, to analyse the position of minority women within their own communities. The starting point must be a better understanding of the choices, experiences and feelings of these women from their own perspective. With this knowledge in place, it becomes easier to imagine the way in which sustained and rigorous analysis can inform discussions about why minority women may consent to harmful practices. Feminism and multiculturalism both also require a more nuanced and sophisticated definition of social and political equality: one in which gender is aligned with categories of identity such as race, culture and religion. Clearly, we must reconsider dominant constructions of ‘woman’ to take into account these criteria and accept multiculturalism’s charge that the misrecogni – tion of private identity is a serious injury. Yet, at the same time, we should also acknowledge that misrecognition and the forced assimilation of a minority are not the only harms that should preoccupy feminists. Analysis needs to move on to delineate the nature and limits of valid consent. There are other injustices – violence, poverty and social exclusion – that remain urgent issues for feminists. Can we find a common basis for a ‘home’ understanding of feminist theory around these wider sets of concerns? Is it possible to challenge dominant construc­tions of ‘woman’ without collapsing into nihilism?[998] Is it unrealistic to hope that autonomy remains a fundamental and transformative organising principle for feminism? What is the ‘branch’ upon which feminists sit? Before we can under­stand and accommodate the needs of minority women, we will need to achieve some consensus – or, at the very least, reach a modus vivendi – on these essential questions. Until then, multiculturalism will continue to trouble feminism and family law.

Acknowledgments

I would like to thank Professor Anne Phillips, The Gender Institute, London School of Economics, for her patient assistance with this work.

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Chapter 12