Academic journal article Proceedings of the Annual Meeting-American Society of International Law

Feminism V. Feminism: What Is a Feminist Approach to Transnational Criminal Law?

Academic journal article Proceedings of the Annual Meeting-American Society of International Law

Feminism V. Feminism: What Is a Feminist Approach to Transnational Criminal Law?

Article excerpt

This panel, co-sponsored by the International Legal Theory and WILIG Interest Groups, was convened at 9:00 a.m., Friday, April 11, by its moderator, Madhavi Sunder of the University of California Davis School of Law, who introduced the panelists: Mary Anne Case of the University of Chicago Law School; Catherine O'Rourke of the University of Ulster School of Law; Ronald Slye of Seattle University School of Law; and Kay Warren of Brown University.* ([dagger])

POWER AND DIFFERENCE 2.0

By Madhavi Sunder ([double dagger])

The American Society of International Law (ASIL) has been engaged in an ongoing conversation on feminist interventions in international law. The focus of these conversations has been on two areas critical to feminist inquiry: power and difference. But feminist talk of power and difference today is distinct from that in the past. In particular, questions concerning power have flipped. As the legal scholar Janet Halley has observed, in the international arena, at least, feminists are no longer outsiders speaking truth to power. Today, feminists wield real, legal power themselves. Halley and others here at ASIL have urged that feminists come to grips with their own power and critically assess the effects--both beneficial and detrimental--that feminist legal interventions have had on real women and men on the ground.

But some of the contributions of this year's panelists seem, at least implicitly, to challenge this story of "governance feminism"--that is, feminism as all-powerful, particularly in the international arena. We hear of the cooptation of feminists in campaigns for legal reform in the area of human trafficking, where religious moralists and colonial impulses to "save" brown women from brown men obscure feminist goals. We hear the suggestion that we must move from our myopic focus on legal reform to address underlying social and cultural norms that more profoundly affect women's lives. Domestic violence laws, for example, are under-enforced because of prevailing notions of privacy surrounding the family home. Similarly, we learn that anti-trafficking laws do little to change the plight of women in a world of dramatically unequal social and economic relations. As Catherine O'Rourke concludes, "Legal change can be affected without significantly impacting the context from which the problem emerges."

Do these arguments disprove governance feminism? Or do they suggest exactly why we need to take a break from feminist lawmaking? Stated differently: is the problem with transnational criminal law reform that it is too feminist or not feminist enough?

Now let's talk about difference. The papers of Mary Anne Case and Ronald Slye invoke culture and race without expressly analyzing these issues. Ron suggests that processes of criminal adjudication are not neutral: far from it, they are perceived as masculine and feminine, Western and non-Western. Ron turns our preconceived gendered and cultured notions about testimony and adjudication on their head asking whether in fact the feminist value for women's autonomy may not be better served by pursuing "non-Western" styles of adjudication and testimony, such as recognizing the power of silence. What is the responsibility of feminism to probe these intersections?

Where Ron's paper implies cultural difference, Mary Anne's emphasizes sameness: she began with the intuition that Muslim prisoners of war were being debased in ways that focused on religion and race, but then changed her priors during the course of her study, where she found that the treatment of Muslim male prisoners was not very different from how the military treats its own officers through processes of hazing. "We were doing to them what was done to us," an officer in her study explains.

I laud Mary Anne's ability to be open to such a critical and disturbing finding--she is admittedly uncomfortable ending up on the side of the Bush Administration and Rush Limbaugh on this one, though she comes there not without a normative critique of the entire gendered process. …

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