Academic journal article Stanford Law Review

From Multiculturalism to Technique: Feminism, Culture, and the Conflict of Laws Style

Academic journal article Stanford Law Review

From Multiculturalism to Technique: Feminism, Culture, and the Conflict of Laws Style

Article excerpt

INTRODUCTION

I.   HOW FEMINISM BECAME ENTANGLED IN THE CONCEPT OF CULTURE
     A. Feminism Versus Culture: Equality > Culture
     B. Relativist Critiques of Feminism: Culture Versus Culture
     C. Post-Essentialist Critiques of Culture: Taking Apart Cultures
     D. Responses to Post-Essentialist Critiques of Culture
        1. Transforming cultures
        2. Minimizing culture
II.  A HYPOTHETICAL CASE
     A. A Dispute over a Gift
     B. The Substantive Law Dimensions
     C. The Cultural Dimensions
        1. The culture of household--corporation and kinship
        2. The postcolonial dimension
        3. The transnational dimension
     D. The Feminist Dimensions
III. THE CONTRIBUTION OF A CONFLICTS APPROACH: INTRODUCING
     TECHNICALITIES
     A. Capturing the Insights of the Feminism/Culture Debate
        1. Seeing culture--the "foreign element".
        2. Culture and agency--pleading and proving foreign law
     B. Revealing New Possibilities
        1. Splitting the power to decide from the question of
           whether to defer to another normative
           community--jurisdiction and choice o flaw
        2. "As if" (I)--characterization
        3. Slicing issue by issue--depegage
        4. "As if" (II)--as if the conflict could disappear
        5. The ethical moment--public policy
IV. "AS IF": LEGAL THEORY THROUGH TECHNIQUE
V.  FEMINISM AS TECHNIQUE
    A. No Dialogue, No Tolerance, No Compromise
       1. No dialogue
       2. No tolerance
       3. No compromise
    B. Feminism in the Conflicts Style
CONCLUSION

INTRODUCTION

German Chancellor Angela Merkel, French President Nicholas Sarkozy, and British Prime Minister David Cameron have each grabbed world headlines of late with pronouncements that their states' efforts to create a multicultural society have failed. "Utterly failed," according to Merkel in a speech to young members of her party in October 2010, asserting that the onus should be on immigrants to do more to integrate into German society. (1) "Oui, c'est un echec," Sarkozy responded bluntly in a February 2011 televised exchange with voters (2)--puzzling those who noted that France has been relatively inflexible about minorities' cultural practices, banning headscarves in schools and preparing to introduce a separate ban on face veils in all public places. (3) In announcing he would soon present new policies designed to strengthen Britain's collective identity, David Cameron was equally hard hitting:

      State multiculturalism is a wrong-headed doctrine that has had
   disastrous results.

   ....

      Take forced marriages. In Bradford, where I was last week,
   schoolgirls under the age of sixteen have simply disappeared from
   school. Nobody knows where they are.

      And, until recently, there was little investigation--despite the
   fact that it is likely that they may have been drugged, imprisoned,
   kidnapped and forced into an unwanted marriage on the other side of
   the world. (4)

Headscarves, face veils, the British prime minister's sensationalist example of schoolgirls drugged and dragged off to a forced marriage in a backward country--as so often, domestic debates about the limits of multiculturalism revolve around the treatment of women. Much the same is true of foreign policy debates about human rights in non-Western countries. Consider, for example, that an independent bipartisan U.S. federal government commission that monitors other countries' compliance with the international human right to religious freedom has emerged as a persistent critic of Islamic countries for their violations of women's equality. (5)

In contrast to such political resolve, however, there seems to be widespread if awkward agreement that Western academic feminism has become bogged down in the problem of "culture." (6) By the problem of culture, we mean not that actual cultures have proved resistant to efforts to further gender equality (although that is also the case), but that as understandings of the concept of culture have changed, it has become more and more complicated to frame, let alone resolve, the issues raised by veiling, clitoridectomy, polygamy, and other cultural practices considered oppressive to women by Western standards. …

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