When Sexual Harassment Law Goes East: Feminism, Legal Transplantation, and Social Change
Barak-Erez, Daphne, Kothari, Jayna, Stanford Journal of International Law
Activism around sexual harassment has sparked developments around the globe, but every legal system has its own individualized story of sexual harassment law. This article engages in a comparative study of sexual harassment in India and Israel, which seem to share a very similar development. Both countries introduced reforms in the area of sexual harassment around the same time and have legal systems that share common denominators, such as a British colonial past and a mixture of modernity and tradition. This article follows the processes that shaped the reforms and uncovers significant differences between Indian and Israeli sexual harassment law. In general, Israeli law is more robust in both its substantive scope and its enforcement. Paradoxically, for these very reasons, it is encountering a significant backlash not traced in the Indian context.
I. INTRODUCTION: SEXUAL HARASSMENT LAW AS A LEGAL TRANSPLANT II. INTRODUCING SEXUAL HARASSMENT LAW IN INDIA AND ISRAEL A. Sexual Harassment Law in India B. Sexual Harassment Law in Israel III. IMPLEMENTATION AND ENFORCEMENT OF SEXUAL HARASSMENT LAW REFORMS A. Implementation in India B. Implementation in Israel IV. THE COMPARATIVE RIDDLE: LEGAL IMPLEMENTATION VIS-A-VIS PUBLIC ATTITUDE V. CONCLUSION
I. INTRODUCTION: SEXUAL HARASSMENT LAW AS A LEGAL TRANSPLANT
"Over the past two decades, activism around sexual harassment has sparked developments around the globe, with differing results as each nation has drawn on its own legal and cultural traditions to fashion its own approach to regulating harassment." Yale Law Professor Vicki Schulz offered these opening remarks to the panel dedicated to the discussion of sexual harassment under the auspices of the Association of American Law Schools in 2004. (1) This Article looks into this process of global-local transplantation more closely by uncovering the differences between supposedly similar case studies.
Inspiration and borrowing from other legal systems has always been a major technique in the development of law, known also as "legal transplantation." (2) This practice has been criticized by scholars pointing to the danger of imposing foreign notions that do not necessarily conform to domestic culture and needs. At the same time, it is obvious that inspiration from other systems also has its virtues, and, at any rate, is part of modem reality. (3) Sexual harassment law is an interesting example of a transplant that was conceptualized and developed originally in the United States (4) and then adopted by many other systems in different forms and degrees. (5) In fact, it represents the hegemonic mode of legal transplantation today: The impact of American law on law reforms in other countries has often been characterized as the "Americanizatton" of other laws. (6)
This Article follows and assesses the processes of adoption of sexual harassment law in two case studies: India and Israel. The justification for looking into these two case studies lies in the basic traits of the two systems. Both systems are based on western constitutional traditions but remain very rooted in traditional and multicultural social contexts. The issue of women's rights is a prime example of this ambivalence in both Israel and India. (7) In addition, the legal systems of India and Israel merit comparison because of their common backgrounds (originating from British colonialism around the same period--India in 1947 and Israel in 1948) and the mixture of modem values and tradition. (8) This combination of "new" and "old" in Israeli and Indian society makes analysis of the transplantation of a progressive normative standard such as the prohibition on sexual harassment, and evaluation of its introduction and the level of its acceptance, even more intriguing. Very interestingly, the two countries introduced reform in the area of sexual harassment around the same time--in 1997 the Indian Supreme Court gave the Vishaka decision, (9) which serves the basis for the sexual harassment law in the country, and in 1998 Israel enacted an advanced statute in this area. …