This material is reproduced with permission from the copyright holder. Please cite as 3 Transnational Law and Contemporary Problems 417.

I. INTRODUCTION ........................................................ 418

II. WOMEN'S RIGHTS AND HUMAN RIGHTS ..................................... 421

A. Shah Bano ........................................................ 428

B. Female Genital Mutilation ........................................ 433

1. The Practice .................................................... 434

2. Eradication ..................................................... 437

III. CULTURAL RELATIVISM: A MISUSE OF SOCIAL SCIENCE ..................... 438

A. The Third World Responses ........................................ 446

B. The Epistemological Obfuscation .................................. 451

IV. FIRST WORLD CRITICISMS OF HUMAN RIGHTS .............................. 454

A. Public and Private in the International Sphere ................... 454

B. Liberal Individualism: The Basis of Western Civil and Political Rights ............................................................ 456

C. Group Rights: An Alternative to Human Rights? .................... 461

V. CONCLUSION .......................................................... 463

[End of Page 417]

The clitoris, culture and the law seem to belong to different epistemological terrains. The clitoris belongs in biological discourse, culture is best analyzed in the terms of social science, and international law is the domain of normative international relations theory. When analyzing the position of women in society such disciplinary boundaries begin to look less convincing as ways of demarcating human activity. No matter how objective they seem, information derived from these disciplines can be used to the disadvantage of women: biological narratives may make women "naturally" suited to the maternal and domestic roles in which social science might come across them. These roles in turn are likely to be in areas of activity not governed by international human rights norms. It is hard to have faith in these sorts of disciplinary distinctions when no matter where their boundaries are drawn, they stop short of considering women with the same centrality of concern as they do men. This shortcoming persists because patriarchy, the "most pervasive and tenacious system of power in history" is "metaphysically nearly perfect." ¹

Nearly, but not quite. Clitorises have become a matter of international concern because of the practice of genital mutilation. However, like all gender-specific human rights abuse of women, female genital mutilation is dealt with as a cultural issue; a particular concern of the U.N. Committee on the Elimination of All Forms of Discrimination Against Women, for example, rather than as a human rights abuse on the agenda of the U.N. Human Rights Committee. ² Female genital mutilation is often, as is much human rights abuse of women, defendedor excused as a cultural practice.

In this essay I examine how the term "culture" is used in the literature on cultural relativism and human rights. Arguments about the desirability of maintaining a culture, a cultural practice, or traditional values, function to delineate a sphere which, it is argued, should remain immune to the dictates and scrutiny of the international community. That countries, in particular Third World countries, invoke cultural autonomy in the name of sovereignty or post-colonialism or anti-imperialism in order to shield themselves from international criticism has been noted elsewhere. ³ Less [End of Page 418] attention has been devoted to the content of the concept of 'cultural autonomy' itself. The practices which constitute culture are different for men than for women.

I examine the way in which the debate over cultural relativism and human rights is formulated so that the epithet "culture" functions to establish a category in which certain practices are removed from the purview of legitimate Western or international scrutiny. The realm of the cultural in this way resembles the private, in the familiar feminist use of the term to contrast the public sphere (of national rights and freedoms) and the private sphere (in which roles and duties are ascribed on the basis of sex). To examine culture through the prism of the public/private distinction is to see similarities in the effect of culture in Western and Third World nations. It is to look underneath the terms "cultural practice" or, in the West for example, "domestic violence" and see violence to women simpliciter. Such violence is inexcusable whether in the name of culture or of privacy; whether in the West or in the Third World.

The essay is divided into three main parts. The first examines the way in which human rights abuse of women is considered internationally as a subspecies of human rights abuse, although most human rights abuse is committed against women. I describe in particular the Shah Bano incident in India and the issue of female genital mutilation. I aim to show the close association between the treatment of women and cultural integrity because often, by seeing women as part of culture, the human rights abuse of women is taken off the main agenda of international human rights organizations.

The second part examines the debate between Third and First World human rights scholars about whether Western individualistic civil and political human rights standards should have any applicability in the Third World. The issues raised by the debate come under the rubric of cultural relativism. The way in which Western writers deal with human rights and cultural relativism provokes justified concern among Third World human rights writers fearful that "human rights" is a term in which Western incursions into Third World countries are justified, or to use Cockburn's term "violence redeemed." ⁴ However, arguments against Western human rights (which are norms or standards) often refute them on grounds drawn from social science or nature. Some Third World responses describe a world of communitarian values which is put forward as antithetical to individualistic human rights standards. I show that communitarian values, regularly [End of Page 419] upheld in the name of cultural integrity, oppress women.

Communitarian or family values have been given by their proponents a basis in nature, or in more recent times, social science. This is the same nature that John Locke claimed placed women in a separate sphere from that of men, so that equal rights were the prerogative of all men, but not of men and women. By focusing on culture, I hope to make the category open to question because it serves men's interests better than women's, and because many cultural practices, both in the West and the Third World, provide cohesion in a society at the expense of women. Just as at the end of the twentieth century it is no longer possible to discuss the age of colonialism without reference to the effects of that political practice upon those whom it oppressed, so should culture be a category which cannot be invoked without reference to the domination of women it entails.

The third part examines the way in which the liberal theory of the rights-bearing individual, although never an accurate reflection of society, was nevertheless useful as a normative tool. The theory provided an ideal pursuant to which laws and institutions of civil society were established. This theory can be useful in arguments for equal rights for women.

The terms used in this essay are general because it ranges over disciplines, theories and cultures. Terms such as "West" and "Third World," ⁵ "human rights," "cultural practices," "liberalism," and [End of Page 420] even "women," cover many differences, and are defined only broadly. They are useful because they are the terms in which the debates examined are conducted, and because patriarchy itself is both general and specific: it is the universal general practice of valuing women less than men, and it has a myriad different specific manifestations. This essay is about reconceptualizing women's specificity as of general concern.

The world of humanity consists of two parts: male and female. Each is the complement of the other. Therefore, if one is defective, the other will necessarily be incomplete, and perfection cannot be attained. Just as physical accomplishment is complete with two halves, so man and woman, the two parts of the social body, must be perfect. It is not natural that either should remain undeveloped, and until both are perfected, the happiness of the human world will not be realized.

--Abdu'l-Bahd, 1912.

She is defined and differentiated with reference to man and not he with reference to her; she is the incidental, the inessential as opposed to the essential. He is the Subject, he is the Absolute--she is the Other.

--Simone de Beauvoir ⁶

The main stumbling block to forming a consensus on the "moral underpinnings" ⁷ of human rights between Western and Third World scholars takes shape under what is called 'culture.' Part of the reason for the international neglect of human rights abuse of women can be attributed to the cultural reasons advanced for abusive practices.

The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) ⁸ is treated differently by [End of Page 421] states parties from other treaties--including other human rights treaties. Belinda Clark writes that " o f the UN human rights treaties, CEDAW has attracted the greatest number of reservations with the potential to modify or exclude most, if not all, of the terms of the treaty," ⁹ so it is "the human rights instrument least respected by its states parties." ¹⁰ These sweeping reservations arguably contravene the Vienna Convention on the Law of Treaties ¹¹ and the provision of the CEDAW which incorporates the provisions of the Vienna Convention as follows: "A reservation incompatible with the object and purpose of the present convention shall not be permitted." ¹² Such reservations are permitted, and instead of challenging the basis and legitimacy of secure international human rights obligations, the CEDAW is considered a "particular case" which does not mean that other human rights treaties, for instance the Convention on the Elimination of Racial Discrimination, can also be taken so lightly. This is an instance of the way in which women and women's concerns are treated as particular and subject to less stringent norms than those affecting men which are more rigidly upheld. ¹³

The broadest reservations are those which restrict any measures to be taken by the state party to those which will not conflict with Shari'a law (Islamic Religious Law) ¹⁴ or traditional practices. The Bangladeshi reservation is as succinct as it is sweeping. It reads:

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The Government of the People's Republic of Bangladesh does not consider as binding upon itself the provisions of Articles 2, 13(a) and 16(1)(c) and (f) as they conflict with Sharia law based on the Holy Quran and Sunna. ¹⁵

Other reservations such as that of Malawi are more explicit about the importance of traditional cultural practices as a barrier to the rights of women. The Malawi reservation reads:

Owing to the deep-rooted nature of some traditional customs and practices of Malawians, the Government of the Republic of Malawi shall not, for the time being, consider itself bound by such of the provisions of the convention as require immediate eradication of such traditional customs and practices. ¹⁶

Culture may be considered as a set of rules and practices which delineate social roles and demarcate the sexes (this involves the separation of public from private). Accordingly, a realignment of the public/private division, for instance by making female genital mutilation a matter of national or international concern, as opposed to keeping it "all in the family," is perceived by some Third World commentators as a threat to cultural integrity.

Josiah M. Cobbah writes that the Western human rights concept "denies culture in a very fundamental sense." ¹⁷ Non-western human rights writers invoke culture and cultural difference against what are often with good reason considered to be neo-colonialist attempts to impose Western human rights standards on nations which have no such tradition. "Culture" and "cultural difference" serve to demarcate areas which, it is claimed, should remain immune to international scrutiny. ¹⁸ But it is as a result of "culture" and "cultural practices" that women are dead and mutilated.

When the economist Amartya Sen studied population levels of women and men in countries all over the globe, he found vast disparities in the ratio of women to men, in men's favor. Sen wrote:

[End of Page 423]

In view of the enormity of the problems of women's survival in large parts of Asia and Africa, it is surprising that these disadvantages have received such inadequate attention. The numbers of 'missing women' in relation to the numbers that could be expected if men and women received similar care in health, medicine, and nutrition, are remarkably large. More than a hundred million women are simply not there because women are neglected as compared to men. If this situation is to be corrected by political action and public policy, the reasons why there are so many 'missing' women must first be better understood. We confront here what is clearly one of the more momentous, and neglected, problems facing the world today. ¹⁹

In order to make the missing and mutilated women visible on the human rights and international theory agendas, it is necessary to examine what goes on under the epithet "culture" so that it can no longer be invoked in order to define a sphere of existence immune to (Western) human rights criticism.

The traditions of Western and non-Western countries alike, which are upheld in the name of culture, can be extremely damaging to women. Because of the recent history of imperialism, cultural autonomy is a very important basis for arguments for self-determination, sovereignty and non-intervention in nations which have suffered colonial interference. Arguments in the name of cultural autonomy assert that the values of tradition should remain free from interference, and tradition is in large part upheld by practices done by and to women (ranging from cooking, crafts, and fashion to genital mutilation, sati, footbinding or wearing neck rings). In the West this occurs because culture and traditional values are linked with the private sphere of so-called higher or non-market affective values of the family. Western writers arguing for a return to traditional values attribute their decline to, for instance, a climbing divorce rate, women entering the workforce and the increasing delinquency or abuse of children which is often calculated to be a consequence of these factors. ²⁰ The disintegration of the distinct line between the private and the public sphere is bemoaned. ²¹ A demarcation dispute arises: in the interests of [End of Page 424] culture and traditional values a clear line between the private and the public should be maintained, and women should know that their place is in the private. This demarcation can be achieved only by denying women access to the rights and privileges attaching to the liberal individual.

Third World writers connect traditional values and cultural integrity when arguing for sovereignty and against imperialism. ²² In the West a similar connection is made between traditional values and cultural integrity, and these values depend upon control over the place and role of women in society. This similarity is never made apparent, because the recent colonial history has rendered Western feminists and human rights writers reluctant to criticize other cultures. Mary Daly, writing in 1978 on the absence of female genital mutilation from the human rights or other political platforms of international relations, remarked that:

Erasure of [female genital mutilation] on the global level occurs when leaders of 'advanced' countries and of international organizations overlook these horrors in the name of 'avoiding cultural judgment.' They are free of responsibility and blame, for the 'custom' must be respected as part of a 'different tradition.' ²³

To view female genital mutilation as one manifestation of a universal cultural practice of valuing women less than men ²⁴ and of [End of Page 425] making culture and tradition depend on the control of women, may disabuse well-intentioned non-interventionists from their reluctance to criticize what goes on under the label of culture. Isabelle R. Gunning, for instance, advocates a "culturally sensitive" approach to what she calls a "culturally challenging" practice. ²⁵ Gunning discusses the reception of the report of the working group established by the U.N. Sub-Commission on the Prevention of Discrimination and Protection of Minorities ²⁶ to examine female genital mutilation. She notes with approval that:

The silence of the Western members of the working group seems to have been the appropriate response. Although not mentioned by the participants, surely the Western members' silence and sensitivity were also influenced the [End of Page 426] participants' awareness of the charge of cultural imperialism that is often lodged against the West. ²⁷

Westerners are now conscious that their standards and values are not universally held, we have become aware that the conviction of the universal validity of these values was a result of the "tendency to conceive of the shared vision of a specific historical community as the universal experience of a transcendental subject." ²⁸ The values of individualism and democracy were not universal; rather, they were imposed for the benefit of colonizers upon the colonized. But there is no sense in which cultures are pristine artifacts to be maintained like objects in a temperature-controlled environment. ²⁹ Cultures define themselves by the norms and values held by their members, but the most frequent arguments made in order to preserve culture mandate a strict separation between an increasingly global, high-technology free marketplace, which is the public sphere of almost all countries, and a private sphere in which traditions and cultural practices may continue.

Mary Racelis, Regional Director of UNICEF in Nairobi, wrote that "tradition represents that part of a people's culture that gives continuity and meaning to people's lives." ³⁰ In the face of rapid industrialization, global interdependence, and the modernization they bring, many countries cling to traditional practices as living symbols of the autonomy and continuity of their culture. Female genital mutilation, for instance, was reinforced in Kenya after liberation. President Jomo Kenyatta described it as an important "custom" for the benefit of "the people," and as "the conditio sine qua non for the whole teaching of tribal law, religion, and morality." ³¹ [End of Page 427] The rise of fundamentalism and theocracy in the Middle East might be conceptualized as a reinvigoration of traditional values (in this case those derived from the Islamic Shari'a religious law) in the face of Western encroachment on those states' autonomy. Shari'a values and the laws in which they find expression, like traditional values the world over, are predominantly concerned with the control of women--with demarcating a sphere of male private control over women, a sphere in which traditional values are replicated, and culture maintained. ³²

If culture more generally is viewed as the problem for women, we are confronted with an irony in women's relation to this culture. As feminists have emphasized, in the traditional dichotomy between nature and culture, woman is identified with nature, which is shaped and controlled and conquered by men. ³³ In the international human rights and cultural relativism debate, woman is associated with culture in a culture/law, or culture/international politics dichotomy. The changed place of women, from nature in one set of terms to culture in the other, is most clearly explained by imposing a public/private grid on the two dichotomies: woman is in the private domain, as that which is controlled, in both sets of terms. The cultural basis for the lack of support for women's human rights affects the lives of women not only in Islamic countries, but in other Third World countries and in the West, because at base a gendered public/private distinction operates to differentiate between the rights of women and those of men.

In Parts A and B I give two examples of the connection between traditional values, which are described as constitutive of culture, and the control of men over women: the Shah Bano incident, and the issue of female genital mutilation.

The 'Shah Bano' incident epitomizes the connection between traditional culture and control over women. ³⁴ In April 1985, the [End of Page 428] Supreme Court of India handed down a judgment in favor of Shah Bano Begum, a seventy-five year old Muslim woman who had petitioned for payment of maintenance from her husband under section 125 of India's Code of Criminal Procedure. ³⁵ The Code provides for maintenance of destitute divorced women in India, both Muslim and non-Muslim.

The decision evoked a sharp response from the Muslim community, the Personal Law of which governs divorce. ³⁶ The [End of Page 429] Muslim Personal Law Board called for a national protest, and in Bombay alone in November 1985, prior to a December 1985 bi-election for a parliamentary seat, more than 500,000 Muslims rallied in protest against the decision. Rajiv Gandhi's Congress (I) Party candidate, although a Muslim, was defeated by the self-titled Muslim fundamentalist Syed Shahabudding, a defeat widely attributed to the reaction against the Shah Bano decision. ³⁷ Thereafter Mr. Gandhi reversed the ruling party's position and, with the support of the Muslim Personal Law Board, the ironically named Muslim Women (Protection of Rights in Divorce) Act of 1986 ³⁸ was passed. The effect of the Act is to protect the rights of Muslim men in divorcing women. The Act denies all Muslim women the right to maintenance under section 125 of the Code of Criminal Procedure. Now governed by the Personal Law, women are only entitled to maintenance for three months and to a payment of deferred dowry rather than to permanent maintenance under the civil law. In effect, there are now two classes of women in India: those whose rights in divorce are governed by the Uniform Code, and Muslim women whose rights depend on the Personal Law. Rahman views the conflict as one between "religious rights and women's [End of Page 430] rights." ³⁹ Essentially, in the name of religion and culture, the Muslim community was allowed to control its women and remove them from the public sphere of equal justice under the Uniform Code. ⁴⁰

Designed to prevent vagrancy, section 125 of the Code of Criminal Procedure enables "discarded wives, helpless and deserted children and destitute parents to secure the much needed relief...." ⁴¹ It provides a maximum payment of 500 rupees (approximately US$16) for all petitioners, for so long as the magistrate sees fit. Since many criminal law procedures are quicker and more effective than civil suits, women of all religions have used this section and its forerunner, section 488 of the 1972 Code, to obtain financial support from their former husbands. This remedy is vital because under Muslim law a husband can divorce a wife by the unilateral pronouncement of the triple talaq ⁴² and under both Hindu and Muslim law women's property rights in terms of inheritance and earnings are severely restricted. These legal barriers combine with the "social ostracism of divorced Muslim women" to make the payment of maintenance vital because it is "highly unlikely that either the families or any religious institution would ... be supportive." ⁴³

The Muslim Personal Law (Shari'a law) was first enacted in 1937. Rahman writes that the "subjects generally governed by personal law or custom include: succession, special property of women, betrothal, marriage, dower, divorce, adoption, guardianship, minority, bastardy, family relations, wills, legacies and gifts." ⁴⁴ Pathak and Sunder Rajan write that "the nature of the personal laws of all religious communities ... regulate most spheres [End of Page 431] of women's activity." ⁴⁵ The tenets of Muslim Personal Law are derived from the interpretations by male Muslim jurists and scholars of the Quranic texts: "essentially, the administration of Islamic personal law is a manifestation of this religion." ⁴⁶ The Muslim Personal Law is thus pivotal in the religious life of the Muslim community and it demonstrates the way in which control over personal life, or women, is central to that community's perception of its culture.

Rahman writes that Gandhi's government, prior to enacting the Muslim Women (Protection of Rights in Divorce) Act 1986, was "torn between, on the one hand, the need to bring Islamic law into line with secular law and ... [to] provide social justice to women, and, on the other, the demands of a powerful minority community for cultural integrity." ⁴⁷ Cultural integrity it seems, is not consonant with women's equal rights nor with their human rights.

Amartya Sen attributes much of the neglect of women relative to men to the organization of family life, and correlates women's well-being with their economic role, the perception of who is doing productive work, and women's economic independence. ⁴⁸ He writes that " conflicts in family life are typically resolved through implicitly agreed-on patterns of behavior that may or may not be particularly egalitarian." The Muslim Personal Law makes explicit the "implicitly agreed-on patterns of behavior" in families so that their non-egalitarian nature is remarkably clear. It enacts publicly patriarchal control over women that might more usually be thought of as operating privately in families; it is the creation of a social private sphere because it legislates in the public arena for the differential rights of and control over women. This public control can be accomplished because culture, and religion as part of it, is largely based on the exercise of control by men over women: only in this sense can we understand Rahman's comment about "cultural integrity" being perceived of as at stake if Muslim women were granted equal rights to non-Muslim women. The maintenance of cultural integrity is shown to depend upon the maintenance of control over women in a private culturally-defined sphere. It is not accidental that the Muslim law by which the Muslim community in India maintains its sense of cultural integrity is Muslim Personal Law, and that that law is concerned virtually completely with delineating the rights of women. If, to use Schor's term, there is no [End of Page 432] "conceptual space beyond the laws of sexual difference," ⁴⁹ then one of our concepts which should be gendered is that of 'culture.'

My initial responses to this issue were ambivalent and confused. As a woman, I felt rage that the practice helped solidify and preserve society by the violation of female bodies; as a Black, I felt a perverse pride that an African tradition had managed to hold its own amid invasive values of beauty, morality, and self-worth....

Kay Boulware-Miller ⁵¹

Boulware-Miller's own "ambivalent and confused" response to the issue of female genital mutilation is writ large in the debate over female genital mutilation in the human rights literature.To respond differently as a woman and as a Black is to recognize that [End of Page 433] the practice is intimately connected with women as women, and sexuality, and that it is similarly linked to concepts of ethnicity which are central to identity. The main strategy to counter the practice takes all arguments against it out of the realm of women's specificity, sexuality or ethnicity, and deals with it as a gender and culturally neutral (scientific) health issue, or a right to health. While this may be the most effective way to implement measures to stop the practice, the fact that women's sexuality is pivotal in 'culture' remains to be examined.

The link made between women's sexuality and the integrity of a culture prevented the eradication of female genital mutilation long ago. It is the reason that the United Nations could study the issue "with care and sensitivity" ⁵² for more than thirty years without taking any measures to stop it, and why the World Health Organization "traditionally treated female circumcision as a social and cultural matter not within its competence." ⁵³ The 1991 report on the practice by the U.N. Special Rapporteur assigned to study traditional practices affecting the health of women and children, while recommending local health and education measures to eradicate female genital mutilation, concluded rather delicately, that " the study raises a number of challenging questions especially related to cultural self-determination and the right of the individual; this is an area which merits further study." ⁵⁴ These "challenging questions" concern the incompatibility of cultural self-determination (or the right of a culture to determine internally the rights of its members) ⁵⁵ and the rights of women. The incompatibility arises because cultures are threatened with losing control over women's sexuality, which is in part how they define themselves. While recommendations for change on the ground may be packaged as a health measure in order not to affront cultures sensitive to Western ideas and encroachment, what is expressed as meriting "further study" is in fact the problem itself. ⁵⁶

1. The Practice

Fran P. Hosken describes the main variants of female genital mutilation:

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1. Sunna Circumcision: removal of the prepuce and/or tip of the clitoris.

2. Excision or clitoridectomy: excision of the entire clitoris with the labia minora and some or most of the external genitalia.

3. Excision and Infibulation (Pharaonic Circumcision): This means excision of the entire clitoris, labia minora and parts of the labia majora. The two sides of the vulva are then fastened together in some way either by thorns ... or sewing with catgut. Alternatively the vulva are scraped raw and the child's limbs are tied together for several weeks until the wound heals (or she dies). The purpose is to close the vaginal orifice. Only a small opening is left (usually by inserting a slither of wood) so urine or later the menstrual blood can be passed. ⁵⁷

It is estimated that 80 million women in Africa alone are genitally mutilated. ⁵⁸ Excision and clitoridectomy are practiced in Burkina Faso, Cameroon, Cote d'Ivoire, Chad, Egypt, Ethiopia, the Gambia, Guinea, Guinea Bissau, Kenya, Liberia, Mauritania, Niger, Nigeria, Oman, Senegal, Togo, Uganda and the northern part of Ghana, and parts of Benin and Tanzania. In Somalia, Mali and the Sudan most women are infibulated; infibulation is also practiced in Djibouti, and some parts of Ethiopia and Egypt. ⁵⁹ The Special Rapporteur also noted that outside Africa, a certain form of female circumcision exists in Indonesia, Malaysia and Yemen, and in some European countries and Australia among immigrant communities. ⁶⁰

The health implications of the practices are severe. Female genital mutilation often results in death. The lesser implications are infertility, keloid formation (scars which shrink the vagina), blockage of menstruation, painful intercourse (an infibulated woman must be cut open to permit insertion of the penis), obstructed childbirth, hemorrhaging, tetanus and septicemia from unsterile instruments (kitchen knives, razor blades, pieces of glass), infection (an infibulated child's excrement remains trapped in the bandages which bind her legs together during the period of immobility which is required for the skin between her legs to bind), bleeding of adjacent organs, and shock and pain from the mutilation which is often [End of Page 435] carried out without anesthesia. According to Magary and Evatt, the psychological consequences can include frigidity and insatiability, anxiety, melancholy and depression. ⁶¹

The reasons most frequently given for the practice are "religion, custom, decreasing the sexual desire of women, hygiene, aesthetic, facility of sexual relations [for the man], fertility etc." ⁶² Boulware-Miller briefly mentions, among other reasons, the fact that it is designed to "curb women's sexual desires and maintain the moral fibre of society." ⁶³ This kind of thinking is reminiscent of that of Francis. ⁶⁴

The practice forms neither part of Christianity nor of Islam. Although most of the countries in which it is currently practiced are Islamic, it has been practiced as a gynecological procedure to cure women of disorders of various kinds in America in the nineteenth century and in Tsarist Russia. In many of the societies in which it is practiced, it is a precondition to marriage. Boulware-Miller writes:

Faced with this societal mandate that circumcision improves their feminine anatomy and morality, women 'consent' to be circumcised. In addition to cultural pressures, economic and social concerns may compel women to 'consent' to these operations. In much of Africa, marriage is a primary path to social and economic survival and advancement. Because uncircumcised women are not considered suitable for marriage in some areas, many African women are forced to undergo circumcision to avoid becoming social and economic outcasts. ⁶⁵

Boulware-Miller observes that circumcision is thought to improve feminine morality and to be a result of social and economic concerns in addition to cultural pressures. The outcry against stopping the practice, however, is a plea in the name of culture, not [End of Page 436] of women's moral fiber. The reason is that women's morality (that is, the control of men over women's sexuality, or measures taken to uphold the notion that a "less sexual woman is more moral") ⁶⁶ is a barometer of cultural integrity: the extent of control over women measures the extent of control of the men, of traditional values, in the face of a potentially liberatory (and to that extent invasive) Western tradition. If this logic holds, then it can be seen that genital mutilation is the price, paid by women, for cultural integrity. This price is too high.

2. Eradication

The history of supposed sensitivity in the treatment by international organizations of female genital mutilation, attributed to thecultural nature of the practice, has severely hampered attempts to eradicate it. The most recent and most successful eradication effort has been the practical result of a shift in logic: the issue of female genital mutilation has been taken out of the realm of specificity which is culture and treated as a gender-neutral health issue. The Inter-African Committee on Traditional Practices Affecting the Health of Women and Children, established in 1984, conducts local programs of education for women and traditional birth attendants, organizes seminars and workshops, and lobbies for greater recognition of the issue. ⁶⁷ Female genital mutilation has in a sense been re-integrated into a mainstream discourse of health, rather than of women's health. Slack writes that "the health approach is not culturally biased and is easier for people to understand and accept than approaches that attack the practice from a religious or cultural perspective." ⁶⁸ Boulware-Miller writes that the right to health argument is likely to be successful ⁶⁹ because it "considers the practice from the perspective of Africans" and can be "integrated into preexisting values and ... economic priorities." ⁷⁰

Health, the objective discourse of medical science, has provided relief for a symptom of a problem of culture and politics, not medicine. This is commendable and will hopefully prove effective, but the problem of culture, and sensitive treatment or marginalization of issues affecting women, remains unaddressed. In Somalia's urban areas educated families have their girls mutilated in hygienic modern hospitals. ⁷¹ The enlightenment values [End of Page 437] behind health education, as espoused by the 1991 Report of the Special Rapporteur, implicitly assume that the practice has to do with barbarism, lack of education, and lack of enlightenment. Chris Brown provides a succinct definition of the "Enlightenment Project" as "the application of reason to human relations, the overcoming of superstition, ... the search for liberation." ⁷² He remarks that it has been "carried throughout the globe parasitic upon, albeit ultimately subversive of, Western imperialism." ⁷³ If, however, advances in medical science, which refute many of the traditional superstitious reasons for the practice, can also be used to perform mutilations in hygenic surgical conditions, it becomes evident that the problem is one of cultural values and not of cultural backwardness.

It does not seem self-evident that with modernization or Westernization or development, however called, in parts of the world to which they are foreign, will necessarily come any change to the system of values which results in female genital mutilation. Even if the practice is eradicated by the year 2000, as the Inter-African Committee hopes, the system of values of which it is a symptom may persist. Patriarchal values subsist in the West despite modernization, so that while women may live longer and perhaps less mutilated lives there than elsewhere, they remain disadvantaged relative to men.

In the international law arena, theorists and human rights proponents argue whether there can be any moral consensus between North and South. ⁷⁴ Both Third World and Western writers look to a supposedly neutral discourse of science, empirical discovery, and truth in nature in order to justify their arguments. ⁷⁵ [End of Page 438] It is as though science might be looked to for universal values and thereby lead us to discover a moral consensus, a bedrock.

Science is looked to for certainty when what is at issue are values, not natural phenomena. Westerners are used to thinking that for something to be true, it must be universally applicable: the idea of culturally different value systems threatens the truth of our values. This is an unnecessary logic: the issue is how and in whose interests culture or rights work, not whether they are true.

Cultural relativism has been an issue in the formulation of universal human rights standards from the beginning of the United Nations. The terms of the argument have not shifted since then. The issue is usually conceived as a conflict between the "right of men to live in terms of their own traditions" and "respect for the individual as an individual." ⁷⁶ In its 1947 submission to the Commission on Human Rights as it was drafting the Universal Declaration of Human Rights, the Executive Board of the American Anthropological Association warned:

Only when a statement of the right of men to live in terms of their own traditions is incorporated into the proposed Declaration, then, can the next step of defining the rights and duties of human groups as regards each other be set upon the firm foundation of the present-day scientific knowledge of Man. ⁷⁷

The "right of men to live in terms of their own traditions" amounts in substance to the right to set up standards of behavior which are not necessarily concordant with the rights of humans as we perceive them in the West. Often, the foundation of tradition is the right of men to exercise all legal power for and over women, who thus have no access to the public sphere of equal justice. If implemented, systems which aim to uphold civil and political human rights would ostensibly give women the same rights as men, [End of Page 439] therefore they fundamentally challenge custom, tradition, and cultural autonomy. The link between cultural autonomy and the autonomy of men to control women is rarely drawn, but it has many detrimental effects. Not the least of these is the reluctance of Western human rights writers, for fear of claims of cultural imperialism, to criticize a cultural practice (for example, female genital mutilation). ⁷⁸ This is strategic misnaming; a cultural practice is in fact a culturally specific variant of the universal exercise of autocratic (that is, patriarchal) power which holds sway in spheres of life where civil and political rights, and equivalent standards of justice to those in civil society, do not apply.

In 1947, the Executive Board of the American Anthropological Association offered three principles to the Commission on Human Rights to guide it in the formation of the Universal Declaration of Human Rights:

1. The individual realizes his personality through his culture, hence respect for individual differences entails a respect for cultural differences....

2. Respect for differences between cultures is validated by the scientific fact that no technique of qualitatively evaluating cultures has been discovered....

3. Standards and values are relative to the culture from which they derive so that any attempt to formulate postulates that grow out of the beliefs or moral codes of any one culture must to that extent detract from the applicability of any Declaration of Human Rights to mankind as a whole. ⁷⁹

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These principles epitomize the dilemma of cultural relativism in a normative framework such as that of international law. They rely on anthropological research to demonstrate that people are culturally constructed and that cultures differ because of differences in value rather than of biology. It is assumed that such a social science research paradigm can also shed light on questions of value themselves. To advocate respect for other cultures because we have no scientific way of qualitatively evaluating them demonstrates the problem in a nutshell. To realize that standards and values which from culture to culture (in a legal debate the concern is with norms, that is, standards and values and not scientifically provable facts), but then to enjoin respect (a value) because we have no scientific basis for "non- respect" yields only obfuscatory gestures towards a discourse of scientific proof in order to show us value. In the end, qualitative evaluation is never a matter of proof.

To ground cultural relativism upon "the firm foundation of the present day scientific knowledge of man," as the Executive Board of the American Anthropological Association called for in 1947, is misguided. It is an attempt to have a firm foundation, a common ground, which is the acceptance of a priori truths revealed by a value-neutral scientific method. One might think this foundation considerably firmer because of all the scientific advances which have occurred since 1947. However, none of the issues raised in discussions of the culturally relative nature of human rights standards have been resolved. This is precisely because they are standards. Their truth will not become apparent by the patient application of cross-cultural scientific method, whether or not one believes the light of reason will eventually illuminate reality so everyone sees it as the same. Human rights standards are not phenomena which will yield laws of nature or physical science. Rather, they are statements of the (Western) conception of the relationship between the individual and society which ought to exist in order for justice to exist. As such they are results of a process of political negotiation and choice of values; not of research, nor of finding the truth. To continue to think in a framework which anticipates the discovery of universal values, like a law of gravity, denies the importance of negotiation, and assumes that, once discovered, this law will be enforceable. The contradiction is clear: if such values were discovered to exist in all cultures, there should logically be no need to enforce what already exists.

Alison Dundes Renteln sets out to "resolve this challenging problem" ⁸⁰ of cultural relativism and human rights. She describes it as the idea that "relativism forbids value judgments" so a "relativist [End of Page 441] cannot disapprove of specific cultural practices." ⁸¹ Renteln calls for a "comparative study of the concept of human rights," ⁸² to "evaluate diverse cultures to see if a concept of human rights exists," ⁸³ and for "extensive research drawing not only on legal but also on cultural materials" in order " to decide whether there is a concept of human rights in African and Islamic societies." ⁸⁴ We are in a waiting period, waiting for further research to show us the true universals of human nature. She writes " until it is feasible to undertake a comparative study of the concept of human rights," "perhaps the only viable solution" is to rely on the documents which have been ratified as evidence of consensus. But " still, it is not true that ratification proves that there is a universal concept of human rights." ⁸⁵

Renteln describes the search for "a principle or mechanism by which to universalize human rights." ⁸⁶ This is to fundamentally mistake human rights, which are by definition a universal standard, for social practices that vary from culture to culture and within cultures. When Renteln writes " egalitarianism is not a universal phenomenon, and so rights, also would not seem to be worldwide" ⁸⁷ she is writing nonsense. To see evidence of a state of affairs in the world (the presence or absence of egalitarianism or the relative oppression or freedom of women) as evidence of a standard is illogical. To find evidence of a standard is only to find that certain societies live up to it, not to find evidence that the standard, which is a judgment of value, is correct or empirically true. Empirical research, such as Amartya Sen's, demonstrates that in many countries women live shorter, sicker, and more overworked lives than men but does not prove what the standard should be. ⁸⁸ Human rights are useful precisely in identifying derogations from the standards they set. These standards need to be identified or forged in consensus, not found or observed like a natural phenomenon.

Renteln's use of the term "universalization" to describe her project is revealing. It is indeed more accurate to describe it as an active political project of making human rights norms universal than, as she claims, a process of finding universal values. To acknowledge an aim of universalizing Western human rights values [End of Page 442] would take the debate out of the realm of scientific truth claims and into that of a juggling of interests in international politics where, once one acknowledges that Westerners have no monopoly of truth in their values, it belongs. It also distinguishes Third World claims of cultural authenticity from claims of truth, making them, too, claims of value and thus negotiable. Much of the debate in Western, particularly American, human rights law literature, is indeed involved in a political process, but it is an unacknowledged one. While gesturing towards cross-cultural negotiation, the overriding concern is to "find" universals which can then be enforced in countries which derogate from them. ⁸⁹ The aim is to proclaim the Western discovery of a universal value in the name of which invasions can be justified.

Renteln's dilemma is as follows:

There is no problem here if criticizing other societies is permissible. The tension begins to build when a society is considered to have some right to determine its own domestic affairs. National sovereignty and self-determination often [End of Page 443] carry with them this sense. It is the challenge from cultural and ethical relativism which makes it difficult to accept assertions about practices. If it is self evident that a practice is ethically wrong, then its repugnant nature should give rise to an argument. What is self evident should be easily argued. The failure to advance an argument when there is a countervailing principle calling for respect for sovereignty is a serious one. The challenge from relativism is increasing. Despite the absolutist language in which the Charter is framed, the need to quell relativism remains. ⁹⁰

The need to quell relativism translates very easily into a justification for interference in other cultures which have values that offend Western concepts of human rights. Until there is evidence of universal values, Western values cannot be proved wrong, and remain available to justify interference in the name of upholding them. In this way calls to social science or cross-cultural study to find universal values are a decoy. In the (eternal) interim period, because there is "no problem" in criticizing (or invading or interfering in) other cultures, relativism, as the manifestation of values different to Western ones, remains to be "quelled," there being no concrete proof that Western values should not be universal. This is the same absence of proof that the Executive Board of the American Anthropological Association took as evidence for the need for respect for other cultures. An absence of proof is perhaps as useful as proof itself: it can be taken as validating either a politics of intervention, or one of respect.

In Fernando R. Téson's article International Human Rights and Cultural Relativism, ⁹¹ the tendency toward justifying interference is especially marked. Despite its title, the article does not deal with cultural relativism itself. Téson's argument cannot seriously admit the possibility that cultural relativism challenges the international validity of any human rights law. Rather, he considers cultural relativism to be invalid at international law.

Téson sets out to prove, quoting French President Mitterand, that "[n]otre conception des droits de l'homme ne varie pas selon les latitudes ni selon les circonstances." ⁹² Téson argues that:

[End of Page 444]

As international law becomes more responsive to the demands for individual freedom, ... it necessarily challenges the validity of certain State practices reflectinggeographical and cultural particularities. The tension between national sovereignty and the enforcement of international human rights standards is highlighted when governments point to national cultural traditions to justify failures to comply with international law. ⁹³

Téson's basic premise is that cultural relativism is untenable because as it manifests itself in international law terms as the right to self-determination, it means "[p]eople have the right to create whatever form of government they want, no matter how repressive, and human rights claims put forward by other states may not interfere with the fulfillment of this right." Implicitly, "peculiar" forms of political organization should be prohibited. He criticizes the "anti-colonialist values embodied in present international law" as leading to relativist interpretations "whereby entire populations are less eligible for protection in the enjoyment of human rights." ⁹⁴ Teson's main concern is to formulate a "more reasonable approach, consistent with sound treaty interpretation, which would dictate that the principle of independent cultural development be harmonized with human rights law." ⁹⁵ In effect, self-determination amounts to the universalization of Western-style democracy, it "requires internal democracy and respect for the rights of all peoples." This is contradictory: democracy is respect for all individuals; respect for "peoples" or groups entails subordinating the interests of some as individuals to those of the group. The conflict is resolved by advocating a Western standard of civil and political rights over all the globe:

Despite serious problems of enforcement, the dynamism of human rights groups throughout the world and the pressure exerted on delinquent governments by democratic nations has achieved remarkable results, demonstrating [End of Page 445] that the belief in human rights is not a mere illusion created by scholars, but an effective and living tool for political reform." ⁹⁶

Téson's assumptions are clear. Whereas Renteln's strategic a priori foundation was empirical research, Teson's is international conventions and customary law. Both approaches validate interference in other cultures in order to impose Western norms on them. This is the way of the "universalization of the concern for human dignity." ⁹⁷ It is not difficult to see how arguments by Third World writers against Western human rights identify those rights as the claims of a new kind of imperialism. The arguments proffered in response, however, advocate a concept of "group rights" according to which power is exercised along natural, autocratic and ascribed lines like those within a family.

It is not surprising that scholars and human rights activists from the Third World are suspicious of the way in which the terms of the human rights debate are defined by, and for, the West. Third World arguments are sometimes framed as a defense of fundamentalism and theocracy, or of traditional values and group rights, often in the name of nationalism or a rediscovery of pre-colonial values. ⁹⁸ The responses of Third World writers such as Cobbah, Sudarkasa and Sinha ⁹⁹ do not imply that a law of science might be discovered which will prove Western individualistic human rights values to be correct. However, they enter into the debate on the similar epistemological grounds that social science has already demonstrated the falsity of individualistic human rights by showing how necessarily interdependent humans are. Cobbah contrasts the two views as follows:

[End of Page 446]

The one [Western] sees the individual, and his freedom, his interest and his projects at the center of the field, society and social relationships as marginal to the hard irreducible core of his individuality, the other starts with the social relationships themselves and sees the individual not as an independent being related only externally to others, but as a being whose whole nature is constituted by the character of the social relations in which he stands. ¹⁰⁰

Cobbah makes an "urgent call for seeing man as a cultural being," ¹⁰¹ because this would "be a more useful framework within which we can understand human behavior." ¹⁰² He argues that atomistic human rights conceptions have been proved wrong and are inapplicable. Cobbah grounds his argument in social science, but it functions to validate a form of group social organization in which tasks are ascribed along autocratic gendered lines, or as Cobbah puts it, the desired social arrangement is one in which equality is not required "any more than the working of the human body or of the universe itself requires equality of its parts." ¹⁰³ Taken to its logical extreme, Cobbah's argument would be that as social science studies have shown us the role of women in our society--that they are not atomized individuals with rights but dependent persons with duties to the group--this means that they should not be equal.

What are the assumptions about the roles of men and women which underlie the proposed alternative ways of seeing human rights? Arguments for communitarian rights are a direct corollary of the arguments about culture which are heard at meetings of international organizations. ¹⁰⁴ They function to demarcate a sphere in which rights-claims are not relevant because the group determines the place and role of the individual, or woman. Such arguments are also an effect of the confusion between normative theory and empirical social science which bypasses discussions of value (for example, should women have human rights?) by presenting a cultural characteristic (e.g., they do not have such rights) that should remain inviolate. It is necessary to disentangle claims about culture as a system of unalterable facts, from a set of norms which can be changed. Henry McDonald conceptualizes culture as a set of norms which, although we cannot shuck them off [End of Page 447] because they are constitutive of our world-views, may, if seen as norms, be changed. He writes:

[T]he meaning of cultural phenomena is grounded neither in external natural processes nor in the internal mental processes of individuals, but in the rules, norms, and values governing (but not rigidly dictating) practice and belief. ¹⁰⁵

What happens to women in groups, families and cultures? Niara Sudarkasa writes:

If there is one thing that anthropologists should have learned from their study of African societies, it is that large and complex family groupings do not present to Africans the 'problems' that they present to Europeans. ¹⁰⁶

Cobbah uses this anthropological data without questioning whether the lack of problems Sudarkasa observes is the result of a voicelessness of African women. "Given the 'naturalness' of the extended family to Africans," Cobbah writes, "it is imperative that we seek to explore the implications of this reality [of the family] rather than attempt to obscure the reality through conceptual analyses that seek to superimpose Western-derived individualistic paradigms." ¹⁰⁷ He is claiming that the individualistic "conceptual analyses" of human rights do not correspond to the reality of African life.

Prakash Sinha is of a similar view. Sinha writes that the current formulation of human rights contains elements which reflect non-Western values:

One, the fundamental unit of society is the individual, not the family. Two, the primary basis for securing human existence in society is through rights, not duties. Three, the primary method of securing these rights is through legalism whereunder rights are claims and adjudicated upon, not reconciliation, repentance, or education. ¹⁰⁸

Rights-claims may indeed not correspond to the reality of contemporary African life (nor do they describe Western existence), but this does not make them unnecessary, nor does it make familial, group, or cultural norms the solution. Human or individual rights are useful precisely because they do not correspond to the lived reality of those who might need to claim them. Elizabeth Fox-Genovese describes a traditional Western concept of the family in a [End of Page 448] way which explains why families present problems to Westerners. Fox-Genovese points out that Western family groups did not cater to the civil and political rights of women:

[F]amilies have normally been treated as the equivalent to sanctuary. The internal relations of families obeyed the discrete principles of an institution that related to society at large as a unit. The father and husband spoke, voted, and earned a living for the family as a whole. Society expected disputes to be settled internally: whether between husbands and wives or fathers and children. The myth of the home as a haven from the struggles of capitalist society cloaked the considerable violence, injustice, and inequality that family relations could contain.... Husbands did wield authority over wives, whose property, wages, and bodies the law entitled them to control.... Law and government tended to stop at the threshold of the private home, still frequently treated as the individual man's castle. ¹⁰⁹

Cobbah argues that Western human rights norms are not relevant to African society and are an imposition because "equality [is] not required," ¹¹⁰ or, to use Fox-Genovese's words, "society expect s disputes to be settled internally." ¹¹¹ To make a connection between the corporatism or hierarchy in families which traditionally protected their members (women and children) from individual rights claims, and the Third World claims for communitarianism, group rights, or autonomous culture, is to see that what is being argued for is the exclusion of women from the public sphere. According to Sen, this exclusion is what is killing them. ¹¹²

Cobbah considers that the family and communitarian societies solve internally many of the problems that Western societies have encountered. He writes:

[End of Page 449]

[I]t is the individualist postulate of natural rights theory that raises the most suspicions about the Western view of dignity and liberty. For example, how do we deal with situations in which some people are disadvantaged? How do we deal with those who cannot compete because of physical or mental disabilities? ... [I]t has become imperative that Westerners seek to accommodate group rights concepts within their hitherto liberal and individualistic human rights framework. ¹¹³

Cobbah's argument becomes clearer when he writes that "African observers are ... quick to consider the hullabaloo over child care and the care of the aged as Western problems. In African societies child care is a communal affair. The busy mother can always count on the entire community for support." ¹¹⁴ The communal nature of African society, which forms the basis of Cobbah's and by implication Sinha's and Sudarkasa's suggested alternative to individualism, amounts to women having support from the community when they perform their duties of caring for children, the aged, the physically or mentally disadvantaged, and so on. The busy mother is busy indeed. When Cobbah writes that " although African society is communal, it is hierarchical," ¹¹⁵ he is describing a form of social arrangement in which the roles, rights, and tasks are assigned on the basis of an hierarchical order ascribed by sex. Although this arrangement might be in the interests of the continuation of the culture as it now works and of the men, it may not be in the interests of the women.

In Cobbah's view, the Western tradition of the natural and imprescriptible rights of man, based on the fiction of an essential, atomized human stripped of all social conditioning in an imagined state of nature, is a concept of human dignity which fundamentally denies the cultural construction of people's sense of self. ¹¹⁶ To postulate the individual as the fundamental unit of society (or the individual as telos) is, in his view, plainly wrong. " I t has become imperative," he writes, "that Westerners seek to accommodate group rights concepts" ¹¹⁷ because Hobbesian and Lockeian concepts of the individual have left something out, not something accidental, but the very essence of man's social and political relationships. The essence of man's political and social relationships is their patriarchal [End of Page 450] nature; to complain that " l iberal thinkers abstracted man from this corporate wholeness and isolated the individual as one with rights not only against the sovereign state but also against all sub-state entities" ¹¹⁸ is to presume that the corporate wholeness of the family as a sub-state entity is as beneficial for women as it is for men.

Cobbah's arguments mistake rights for descriptors of social science. Rights are not things found in a culture or society, but things claimed from it. Human rights are avenues for people to make claims against a society precisely in the event that their society or culture, albeit the same one which constituted them, might also oppress them. To say that such individual rights are "meaningless" ¹¹⁹ to a group, culture, or society, is to presume the total satisfaction of individuals' needs by that society, or to ensure that if those needs are not satisfied the people shall remain voiceless, or, if expressed, their claims will be illegitimate. It is to hermetically seal a society against a discourse of rights in which inequities can be raised and resolved on the basis that humans should be treated as much as possible as if they were free and equal. Groups function to serve male interests better than they serve female ones, ¹²⁰ so arguments about the priority of group needs over those of the individual should often read 'priority of men's interests over women's.'

The 1947 Executive Board of the American Anthropological Society put the problem, without explicitly recognizing it as the difference between, and interdependence of, empirical and normative theory:

If we begin, as we must, with the individual, we find that from the moment of his birth not only his behavior, but his very thought, his hopes, aspirations, the moral values which direct his action and justify and give meaning to his life in his own eyes and those of his fellows, are shaped by the body of custom of the group of which he becomes a member. The [End of Page 451] process by means of which this is accomplished is so subtle, and its effects are so far-reaching, that only after considerable training are we conscious of it. Yet if the essence of the Declaration is to be, as it must, a statement of the right of the individual to develop his personality to the fullest is to be stressed, then this must be based on a recognition of the fact that the personality of the individual can develop only in terms of the culture of his society. ¹²¹

The choice of beginning "as we must" with the male individual, rather than, for instance, a woman, who is always already defined in terms of her relationship to others (a daughter, a wife, a mother) indicates that the Executive Board is operating within the assumptions of a theory of society as constituted by (male) individuals. The task, having chosen without realizing it to discuss an atomized individual, is to account for the social nature of his life, to theorize his dependence, to integrate him back into society. The American Anthropological Society did this using methods derived from the social sciences. To begin an analysis with the individual as its primary focus is to start in Western Lockean normative theory, which provides an ideal for relations between individuals rather than a description of their social construction. Current social theory is concerned with explaining the social construction of the individual in anthropological, psychological, psychoanalytic, Marxist, historical or other terms. Lockean social theory was concerned with theorizing social relations between ideal individuals who were born free, equal, whole and male. Locke's theory was about how relations in the political sphere between men should be organized, not how they in fact were. Locke did not describe how social reality in fact functioned. He began with a fiction in order to see men as free and equal, a fiction that is still used by lawyers who are concerned with standards for behavior in society, but that is not useful for social scientists who examine that behavior itself, regardless of whether or not it conforms to a standard. Much social science is concerned to show how people, rather than being free and equal to choose their destinies, are shaped by the social forces around them.

Social contract theory involved calls to nature in a sense analogous to the calls to empirical evidence which we hear today. [End of Page 452] For Locke, the freedom of men was defined by separating the sort of power which they could legitimately exercise over each other, from the sort of power which was naturally theirs to exercise over women and slaves. The latter power was given to them by nature; it was in the natural order of things. Locke used ideas of individual rights and the liberty and equality of all men, in order to advocate a system of political power in which, unlike in a monarchy or a family, certain men could not exercise "naturally based" hierarchical power over others. In this way he was using an idea, a fiction, in order to advocate standards and norms of behavior which did not exist but, in his view, should have.

If one maintains a clear distinction between the normative and the natural, or between human rights claims and social science, one is wary of calls like Cobbah's to the revelations of social science which show how women are treated in various cultures and then claim that this is what the standard should be. It is still necessary to have a normative language in which claims for changing society can be made; but the question remains as to whether the terms of individual rights theories are still credible.

My argument against the inviolability of culture may appear to advocate a politics of intervention like that of Western human rights writers such as Renteln and Teson. These writers assume the validity of individualistic notions of human rights, and argue that they remain standards available to justify intervention in other countries. Third World writers deny individual rights are valid standards applicable to them, and maintain that their cultures provide other conceptions of human dignity. They do so not in the terms of discredited individualistic human rights theory, but in the terms of existing social relations; social relations are used as a call to nature in a way which advocates maintaining the same "nature" which Locke found to have ascribed women a subordinate place in the social order.

In arguing against these cultural conceptions of human dignity, one is quickly positioned as a Western neo-imperialist, set on intervention. For Westerners to argue, as I do, that cultural practices such as female genital mutilation should be ended might be to assume that we know better or, in Savane's words, to be firmly part of "the West whose benevolence once more led them to define the path to be followed." ¹²² It is to appear unquestioningly part of the Enlightenment project which conceptualized the West as the future or beacon in relation to the darkness and backwardness of the rest of the world. ¹²³ My argument does not, however, involve "enlightening" [End of Page 453] others with scientific proof, or the truth. It is about values. To examine the Western human rights proponents and find apologists for interventionist foreign policy, and Third World writers and find defenders of a cultural sphere which functions to severely disadvantage women by leaving them in a state of nature (or culture) in which equal rights claims have no purchase, is to reveal both sides of the issue as imbued with questions of value and not matters of truth. Values can legitimately be disagreed with; they cannot be proved wrong.

To advocate individual civil and political rights for women is not a simple solution to countering Third World claims for group rights. Feminist critiques have made readers aware that the rhetoric of liberal individualism may serve to mask systemic discrimination on the grounds of sex or race behind a rhetoric of civil and political enfranchisement, equality of opportunity, and a neutral and shared conception of merit. Liberal individualism's hidden premise is that access to the free and equal rights differs depending on whether one is male or female. This premise is hidden by the dichotomy between a private world and a public one. Before examining Locke's theory in detail, it is worth noting that the division of public and private exists at international law, and it has a similarly obscuring effect. ¹²⁴ Pateman notes succinctly that "the dichotomy between the private and the public obscures the subjection of women to men within an apparently universal, egalitarian and individualist order." ¹²⁵

The language of sovereign individual states who are free to keep their own houses in order, and equal to each other in the sense of being free to enter into relations or not, is common. Brierly writes of a sort of laissez faire attitude toward the relations of states in that

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[t]he restricted range of international law is merely the counterpart of the wide freedom of independent action which states claim in virtue of their sovereignty.... Law will never play a really effective part in international relations until it can annex to its own sphere some of the matters which at present lie within the "domestic jurisdictions" of states.... ¹²⁶

The casebook author helpfully provides a note explaining the domestic jurisdiction of states:

Matters within the "domestic jurisdiction" of a state are matters not regulated by international law so that a state is free to act in its discretion. They are numerous and varied. They range from the kind of government (democratic, totalitarian) a state has, to the treatment of nationals (but not aliens) in most respects, to cruelty to cats. ¹²⁷

Female genital mutilation, a cultural practice or a traditional practice as it is called by the Working Group on Traditional Practices of the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities, ¹²⁸ many human rights advocates argue, should come under the legal regulation of human rights norms and organs. It should cease to be, to use Harris and Brierly's words, something within the domestic jurisdiction of a state, one of the "matters not regulated by international law," ¹²⁹ so that a "state is free to act in its discretion;" ¹³⁰ it should no longer represent part of the "wide freedom" of action states have as a corollary of sovereignty, and human rights law should "annex to its own sphere" this matter which at present lies within the "domestic jurisdictions" of states.

Female genital mutilation is not, of course, something that states do. However, human rights law concerns treatment of the person generally, not only by states. Traditional practices such as female genital mutilation are protected when a State claims a cultural immunity to implementing CEDAW, or that its sovereignty is being assailed by criticism of practices it countenances. Further, human rights law would require state action to eliminate the practice, so it is appropriate to discuss state jurisdiction when dealing with female [End of Page 455] genital mutilation or human rights abuse of women.

The notion that international law operates according to a domestic/legal, or domestic/international dichotomy is, as Brierly notes, connected with sovereignty, and with freedom. It is useful to analyze the traditional Western concepts of sovereignty and freedom in order to see whom they exclude at the domestic level (members of families) and whom they exclude at the international level (members of cultures).

And thy desire shall be to thy husband, and he shall rule over thee.

--Genesis III:16

But if these words here spoke to Eve must needs be understood as a law to bind her and all other women to subjection, it can be no other subjection than what every wife owes her husband, and then if this be the 'original grant of government' and the 'foundation of monarchical power,' there will be as many monarchs as there are husbands.

--John Locke ¹³¹

The foundations of human rights are often considered to be the claims made for individuals in the grand liberatory statements of the seventeenth and eighteenth centuries. The English Petition of Rights (1627), the Habeas Corpus Act (1679), the American Declaration of Independence (1776), the United States Constitution (1787), the American Bill of Rights (1791), and the French Declaration of the Rights of Man and Citizen (1789) are among the most prominent.

The Preamble to the Declaration of the Rights of Man and Citizen recites that:

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[A]ll men are created equal ... endowed with certain inalienable rights ... among these ... life, liberty, and the pursuit of happiness, men were born and remain free and equal in rights, the aim of every political association is the preservation of the natural and imprescriptible rights of man. These rights are liberty, the ownership of property, security, and the right to resist oppression. ¹³²

In the English tradition, the birth of the free individual might be taken to have occurred in John Locke's social contract theory. Locke writes:

Men being, ... by nature all free, equal, and independent, no one can be put out of his estate and subjected to the political power of another without his own consent, which is done by agreeing with other men, to join and unite into a community for their comfortable, safe and peaceable living, one amongst another, in a secure enjoyment of their properties, and a greater security against any that are not of it. ¹³³

In his Two Treatises, Locke refutes his contemporary Sir Robert Filmer's defense of absolute monarchy. Filmer's argument was based on the biblical grant of power by God to Adam over all creatures, over Eve, and over their children. ¹³⁴ Locke's main argument is that such a grant of power was only the natural power of men over women; it had nothing to do with political power. Men were not born subject to a ruler, but free to decide contractual limits on their freedom in return for other men contracting not to extend their freedom so it infringed that of the individual. Locke describes the sort of power men have over women, slaves, or children, in order to distinguish it from the sort of power they can legitimately exercise over each other. According to Locke,

[i]t is impossible that the rulers now on earth should make any benefit, or derive any the least shadow of authority from that which is held to be the fountain of all power, 'Adam's [End of Page 457] private dominion and paternal jurisdiction;' so that he will not give just occasion to think that all government in the world is the product only of force and violence ... [he] must of necessity find out another rise of government, another original of political power, and another way of designing and knowing the persons that have it than what Sir Robert Filmer hath taught us. ¹³⁵

Part of a man's absolute freedom is his control over a woman, his "private dominion" and "paternal jurisdiction." ¹³⁶ A different theory of power was needed to justify the relations between free men. Individual rights provided the groundwork and rhetoric for a system of social organization based on freedom of contract and a nascent form of democracy rather than "paternal" or "despotical" power. ¹³⁷ Rights were the claims which took sovereignty away from a monarch empowered by God, in favor of a leader chosen by free men. Men controlled their social relations by consent and by virtue of being men, not by virtue of being born into a particular position (for example, servitude to a monarch) or the other sex. Rights provided the terminology for defining a sphere on which the omnipotent monarch or the leviathan state could not encroach; they were ways of creating a private sphere of autonomy, or at least of voicing a claim to it.

Pateman neatly describes the problem that arose in justifying the continued existence of patriarchal power (as part of the individual's privacy) while at the same time denouncing monarchical regimes:

In theory, liberalism and patriarchalism stand irrevocably opposed to each other. Liberalism is individualist, egalitarian, conventionalist doctrine; patriarchalism claims that hierarchical relations of subordination necessarily follow from the natural characteristics of men and women. In fact, the two doctrines were successfully reconciled through the answer given by the contract theorists in the seventeenth century to the subversive question of who [End of Page 458] counted as free and equal individuals. The conflict with the patriarchalists did not extend to women or to conjugal relations; the latter were excluded from individualist arguments and the battle was fought out over the relation of adult sons to their fathers. ¹³⁸

This shift in terrain from the relations of men and women to those of fathers and their adult sons provoked a contemporary critique of the public/private distinction by Mary Astell:

If absolute sovereignty be not necessary in a state, how comes it to be so in a family? Or if in a family why not in a state; since no reason can be alledged [sic] for the one that will not hold more strongly for the other? ... For if arbitrary power is evil in itself, and an improper method of governing rational and free agents, it ought not to be practiced anywhere.... If all men are born free, how is it that all women are born slaves? ¹³⁹

Locke's definition of political power and law entailed separating the natural from the social and the autocratic from the consensual, so that power exercised in the private realm, which was not between consenting adults but by a man over a woman and their children who belonged to him, was deemed not to be political (consensual), but natural (ascribed). Thus Locke writes that Eve's subjection to Adam

can be no other subjection than what every wife owes her husband ... [Adam's] can be only a conjugal power, not political; the power that every husband hath to order the things of private concernment in his family as proprietor of the goods and land there, and to have his will take place before that of his wife in all things of their common concernment; but not a political power of life and death over her, much less over anybody else. ¹⁴⁰

So although the aim of every political association might be to [End of Page 459] preserve the natural and imprescriptible rights of man, not only do women not belong to the category of persons with these rights, but they are confined to a sphere in which conjugal power holds sway instead. It is not a political sphere, and so it is not one in which the theories of individual rights operate.

By analyzing the standards which apply in the public and the private spheres, Pateman reveals that "the apparently universal criteria governing civil society are actually those associated with the liberal conception of the male individual, a conception which is presented as that of the individual." ¹⁴¹ Locke provided the theoretical basis for this division in his Second Treatise where he argues that political power is conventional (i.e. contractual) and can be exercised over free and equal adult individuals only with their consent. ¹⁴² Locke can find no reason for the subjection of women other than in nature. He writes that we know wives should be subject to husbands because "generally the laws of mankind and the customs of nations have ordered it so: and there is, I grant, a foundation in nature for it." ¹⁴³ Men's superiority to women is accorded by nature too; but their relations among one another must be governed by reason, justice and rights instead. To quote Pateman again on Locke:

When he states that he will consider 'what State all Men are naturally in', in order to arrive at a proper understanding of the character of (civil) political power, 'men' should be read literally. The natural subjection of women, which entails their exclusion from the category of 'individual', is irrelevant to Locke's investigation. The subjection of women (wives) to men (husbands) is not an example of political domination and subordination. ¹⁴⁴

In this way a nature/culture distinction is put forward according to which nature, and the hypothetical state of nature, provide the foundations for both women's and men's social roles; women, however, remain in the state of nature whereas men emerge from it and enter into contractual relations of freedom and politics.

Locke associates the "law of mankind" and the "customs of nations" with a "foundation in nature." Contemporary law and customs still share the founding assumption that women belong in a sphere which is de-politicized. Cobbah argues for this in his refutation of the relevance of individual rights theory. The sphere of the cultural or the private is intimately associated with the freedom [End of Page 461 of the (male) individual because it is where the mores and practices of a liberal political state or liberal international human rights norms have no jurisdiction: he does. The twentieth century feminist slogan "the personal is political," according to which notions of power and rights and fairness were imported into the sphere of conjugal power, is a direct response to this division of private and public.

In the international arena the question of the definition of human rights is one which raises strikingly similar arguments using the terms of sovereignty and freedom, in this case of Third World nations and cultures. The debate is at base about defining a sphere in which the juridico-political terms of human rights do not apply-a private sphere called cultural autonomy. It is the status of women as humans, as global citizens with human rights recognized in the public sphere of international law, which is at stake.

It may be that the theoretical basis for human rights is, in the face of a Third World challenge, ¹⁴⁵ being redefined. Any such redefinition must not occur in ungendered terms, on an equivalent terrain to that of the Lockeian fathers and sons. The human with human rights, like his domestic counterpart, the individual with individual rights, is a man, and will remain one unless women, using a rhetoric of rights, become human.

Within Western society there have always been people unable to voice claims against the "natural," hidden, private bases of power which made family members unfree and unequal. Individual rights defined the realm of the individual's freedom from the state, which was his privacy. Women, who had very limited public legal rights in the West, were thought of as living in therealm of the individual's or citizen's autonomy. At the same time that the individual was born free, he was born male, and his freedom necessarily entailed the freedom to conduct relations in the family along non-equal lines.

To argue in terms of the granting of full citizenship rights, or full human rights, assumes that one is working on the premise of individualism; that the individual's good is the fundamental aim of society. The theoretical model of liberalism, from which civil and political rights are derived, is flawed because it relies on the exclusion of women so that an individual can have a corporate entity--the private familial sphere--to support him in the exercise of his rights in the polity. ¹⁴⁶ Working within the liberal framework is [End of Page 461] problematic. Many feminists are unsettled by the knowledge that the liberal individualist theory upon which our notions of democracy are based is an inadequate way of thinking about just social organization: but "group rights" or "communitarian values" such as those Cobbah puts forward are not a viable alternative for women.

This century women have wrought changes in the West in the name of individualism, but the social meaning of that concept cannot remain the same as when it was buttressed by a private sphere of women's labor. Claims by women for full legal equality and for the state to protect their rights both in the home and in the workplace have altered the relation of the private and public spheres. The upshot of these claims (among other factors) is that women have won the right to participate in public life, to vote, to be educated, and to contract in and out of marriage. This has been accomplished largely by arguing along individualist grounds: if the constitutional foundations of our polity prescribed freedom and equality for all, women, turning these principles to their own use, could argue for a share in such rights. The seventeenth and eighteenth century rhetoric of the rights of man could not withstand a challenge to it on its own foundations, and provided the language by which women could claim the status of individual, or citizen. ¹⁴⁷ However, according to Elizabeth Fox-Genovese, writing of the United States context:

As a people and a society we have stretched the principles of individualism about as far as we can. The struggle for women's full access to individualism has, more than any other single development, exposed the bankruptcy of individualist principles as guidelines for a just society. Individualism worked as a standard of justice and of freedom only so long as more than half the population was excluded from it. At an accelerating rate during the last two centuries, the market and the state have intruded into [End of Page 462] households and into private relations. In our own time, that accelerating intrusion has assumed revolutionary proportions. Personal relations are being conflated with contractual relations and have, consequently, been politicized. The implications of this shift have, so far, exceeded our collective understanding, ideals, and imagination--and are rapidly exceeding the resilience of our polity. ¹⁴⁸

Individual rights in Western societies were never an apt way of describing the constitutional foundations of our polity. Nevertheless, they have been and remain useful terms in which women can argue for equal rights. In the international arena, these terms will remain useful so long as a public/private dichotomy, such as the one I have described between individual human rights and culture, continues to be invoked in order to deny women access to human rights on a par with their brothers, sons, and fathers.

Can we still, in our time, provide a rational justification for universal normative standards? Or are we faced with relativism, decisionism, or emotivism which hold that ultimate norms are arbitrary and beyond rational warrantability? ... The fate--indeed, the very possibility, of a critical theory of society with the practical intent of furthering human emancipation--depends on giving an affirmative answer to the first question and a negative answer to the second.

Richard J. Bernstein ¹⁴⁹

[End of Page 463]

The tendency to conceive of the shared vision of a specific historical community as the universal experience of a transcendental subject can be observed in every field of cultural production. Such fields appear as sites in which universal reason actualizes itself, owing nothing to the social conditions under which it is manifested. In The Conflict of Faculties, Kant noted that the 'higher disciplines'--theology, law, and medicine--are clearly entrusted with a social function. In each of these disciplines, a serious crisis must generally occur in the contract by which this function has been delegated before the question of its basis comes to be seen as a real problem of social practice. This appears to be happening today.

Pierre Bourdieu ¹⁵⁰

Today, to paraphrase Bourdieu, the question of the basis of human rights law has arisen because of a serious crisis occurring in the relationship between the original formulators of universal human rights, and cultures whose social arrangements and practices can no longer be interpreted as testimony to the universality of human rights. The shared vision of the Western community which gave rise to the transcendental subject, the individual with human rights, has been found not to have been shared worldwide. So natural law and reason, the cornerstones of the transcendental subject, are in question.

These factors have also called into question the basis of knowledge, because many claims, both philosophical and legal, have their ultimate justification in an a priori given of one kind or another. ¹⁵¹ The twentieth century has witnessed a massive decline in the descriptive credibility of such "master narratives" ¹⁵² as that of Christianity, of the natural ascription of gender roles, of the enlightenment, or of its modern variant of truth and progress through the application of reason and science. With this questioning has come an interrogation of the relevance of thinking in terms of humans with rights. As David Baker puts it, " the decline of God made relative the notion of what is objective, and the primary result was to change the referent, now to empirical phenomena." ¹⁵³

[End of Page 464]

As "master narratives" became increasingly less convincing ways of describing the world and people's place in it, that world and place were being described in the terms of disciplines which took the local social construction of the individual as their founding premise: psychology, psychoanalysis, sociology, anthropology, ethnography and so on. David Bennett describes the process of disabuse as follows:

The so-called 'master narratives' of modernity--emancipatory metanarratives in which the West figured as the future in relation to the rest of the world's past--have reputedly been discredited. The humanist metanarrative of enlightenment, of humanity's inevitable progress toward self-knowledge and emancipation through the agencies of reason, science and technology; the Marxist metanarrative of emancipation from exploitation through the revolutionary struggle of the proletariat; the liberal capitalist metanarrative of humanity's emancipation from poverty through the operations of the free market: these teleological 'grand narratives,' which once provided historiography with such grounding universals as human knowledge or reason, labour, class, and capital, have been revealed as the fallible projections of local rather than global interests, of desires rather than of 'knowledge', and with their destabilizing the very grounds of social and cultural periodization have seemed to dissolve. ¹⁵⁴

The law, however, never took the social construction of the individual as its basis in Western society. The law is a discipline too intimately involved with the regulation and construction of such individuals; it is what Kant calls a "discipline entrusted with a social function." ¹⁵⁵ It is one of the factors metanarratives of psychology or history might take into their accounts. So, concerned with the regulation of people and their relationship to society, the law took an ideal fiction as its guide: that of the individual as telos. In Kant's words, "in the order of ends, man (and every rational being) is an end-in-himself, i.e., he is never to be used merely as a means for someone (even for God) without at the same time being himself an end, and that thus the humanity in our person must itself be holy to us." ¹⁵⁶ Instead of treating people born unequal as the social world would determine them, the law maintained the fiction, through thick and thin, that individuals were born free and equal. Although [End of Page 465] patently untrue in Western societies, it is arguable that such a fiction, along with the fiction of what Kant called the "idea" of a social contract, ¹⁵⁷ resulted in a more just way of social organization than some other ideas of the basis of power (for example the ascriptions claimed to be derived from god or nature, or the order innate in the universe) ¹⁵⁸ precisely because the fiction of equality has enabled claims to be made in the language of rights, which might otherwise not have been heard.

There is no reason to think that the use of individual rights claims is in any sense invalidated by the fact that these claims do not accurately represent the societies in which they are voiced: the point is precisely to change those societies, not to describe them. The only sense in which individual rights claims might be considered to describe a society is in that they describe what that society is doing to certain of its members: they are a catalogue of complaints. Rights claims describe the areas, in Western societies, where the reality falls short of the rhetoric of equality. Where people are claiming equal rights it means they are missing them. It is no answer to a claim for equal rights to point out the fact that society has treated the claimant unequally: that is precisely the problem. To make such a reply is to use existing systems of social relations as a call to nature, as validity for the status quo. This is how Third World calls to culture in the human rights literature and in the reservations to CEDAW ¹⁵⁹ are used in order to validate the fact that human rights norms should not apply to existing social practices, such as female genital mutilation. The fact that arguments for group rights function to disentitle women from claiming against human rights abuse demonstrates the continuing usefulness of individual rights theory, despite it not describing their social reality, except insofar as what is missing from it.

Currently, although calls to a state of nature no longer command authority, calls to social science do. There seems to be good reason, with the advances in data collection and technology which have been made this century, to place some faith in empirical disciplines for discoveries in the natural world or for technological advances. But when one considers that all the empirical evidence in the world ¹⁶⁰ has not led to readjustment of the treatment of women by men, it becomes clear that the problem is one of power and value; there is no simple equation between knowing a fact, such as that eighty million women are mutilated, and changing the world. As Catharine A. [End of Page 466] MacKinnon writes, "the equality of women to men will not be scientifically provable until it is no longer necessary to do so." ¹⁶¹

The problem of the difference between normative and empirical theory is the problem of cultural relativism. A condition of belief in our norms and standards is their universality. Donnelly writes that "if we take seriously the idea of human rights, we must recognize them as both a historical product and of universal validity." ¹⁶² The difference between recognizing individual rights as the products of a particular period in Western history and still claiming their universal validity reflects the difference between social science and values. The epistemological confusion creates the human rights/cultural relativism debate in terms like these: for some standard to be right it must be true, and truth, as science demonstrates, must remain always the same under the same conditions; empirical evidence from other cultures would suggest that our standards of civil and political rights are not universal. Can they then be "imposed" on other cultures? David Baker writes

The purpose of philosophy perhaps should be to change the world, but it should be an open question as to who shall bring about this change and to what end. However, Western social science has already answered both questions, if sometimes only implicitly. This sort of neo-colonialism must be recognized and others in the world given their rightful opportunity to shape their future as they understand it. But is it possible for us to study societies other than our own without applying a logic external to the society being considered? ¹⁶³

I argue that it is precisely a logic external to the societies being considered, both Western and Third World, which must be applied in order to change the human rights abuse of women, because such abuse flows logically from the structure of all societies. That is to say, the social science studies which reveal the effects of patriarchy should not be called upon to justify maintaining any particular culture. Although there are problems with rights theory, it remains the best normative option in which to allow people to make claims for change, and through which to see women as citizens of the globe.

************************************************

^* Counsel, Office of International Law, Attorney-General's Department of Australia; L.L.B. (Hons.) University of Melbourne, B.A. (Hons.) University of Melbourne. I thank Hilary Charlesworth for her guidance and encouragement of this article, and Jenny Morgan and David Bennett for their useful comments on it in draft form. The opinions expressed in this article are those of the author and not necessarily those of the Attorney-General's Department of Australia.

¹ Catharine A. MacKinnon, Feminism, Marxism, Method, and the State: Toward Feminist Jurisprudence, 8 SIGNS 635, 638 (1983).

² See Andrew Byrnes, Women, Feminism and International Human Rights Law--Methodological Myopia, Fundamental Flaws or Meaningful Marginalization?, 12 AUSTL.Y.B.INT'L L. 205 (1992).

³ See, e.g., Jack Donnelly, Cultural Relativism and Universal Human Rights, 6HUM.RTS.Q. 400 (1984).

⁴ ALEXANDER COCKBURN, CORRUPTIONS OF EMPIRE: LIFE STUDIES AND THE REAGAN ERA (1987).

⁵ I use 'Third World' in this article to refer to countries which include developing countries, forming a group under this term only because they share a history of colonial exploitation, and because arguments for sovereignty of some of these countries, for example Islamic states, quickly turn into arguments about "the West" and "the Third World." See, e.g., Belinda Clark, The Vienna Convention Reservations Regime and the Convention on Discrimination against Women, 85 AM.J.INT'L L., 281 (1991). In this context it is useful to note that the difference between the West and the previously colonized world is a result of geopolitical conditions which, despite the so- called end of colonialism, are a direct result of colonial practice. Wolfgang J. Mommsen writes:

The caesura marked by decolonization and the end of empire, that is to say, the forfeiting of all direct control by the former colonial powers, appears to be a very marked one. But on closer inspection, it evaporates to some extent. The formal granting of independence did not change social reality at the periphery overnight; instead it was merely a stage, though an important one, in the painful and difficult struggle for emancipation in a world still dominated by the West economically, culturally and, at least to some degree, politically, though perhaps no longer to the same degree as before 1940.

Wolfgang J. Mommsen, The End of Empire and the Continuity of Imperialism, in IMPERIALISM AND AFTER: CONTINUITIES AND DISCONTINUITIES 333 (Wolfgang J. Mommsen & Jurgen Osterhammel eds., 1986). With regard to the continuing validity of using the category "third world," see also Clarence C. Ferguson Jr., Redressing Global Injustices: The Role of Law, in THIRD WORLD ATTITUDES TOWARD INTERNATIONAL LAW 365 (Frederick Snyder & Surakiart Sathirathail eds., 1987).

⁶ THE SECOND SEX xviii-xvix (1953).

⁷ See Chris Brown, The Modern Requirement? Reflections on Normative International Theory in a Post-Western World, 17 MILLENNIUM 339, 339-48 (1988).

⁸ Convention on the Elimination of All Forms of Discrimination Against Women, G.A.Res. 180, U.N. GAOR, 34th Sess., Supp. No. 46, at 194, U.N.Doc. A/34/830 (1979) [hereinafter CEDAW].

⁹ Clark, supra note 5, at 317.

¹⁰ Id. at 318. As of February 5, 1993 there were 118 states parties to CEDAW, at least 41 of whom had made reservations to substantive provisions of CEDAW. Nineteen of those were with regard to dispute settlement under article 29(2) of the Convention which provides that any dispute between the parties over the interpretation or application of the Convention not settled by negotiation shall be referred to the International Court of Justice (ICJ) at the request of any one of those parties. Article 29(2) gives parties the right to declare that they do not consider themselves bound by paragraph (1) of the article. No state has brought an action under article 29(1). There are thus at least 22 reservations which refer to the content of the obligations imposed by the convention. Id. at 282.

¹¹ Vienna Convention on the Law of Treaties, opened for signature, May 23, 1969, 1155 U.N.T.S. 331, 8 ILM 679 (1969) (entered into force Jan. 27, 1980) [hereinafter Vienna Convention].

¹² CEDAW, supra note 8, § 28, ¶ 2.

¹³ See infra notes 135-145and accompanying text on making a sphere of the private in which liberal norms of equality and justice do not apply.

¹⁴ See infra text accompanying notes 45-47.

¹⁵ Multilateral Treaty Series, deposited with the Secretary General, status as at Dec. 31, 1989, at 171, U.N.Doc. ST/LEG/SER.E/8 (1989). Sunna literally means tradition, here it is used to mean Islamic tradition. It is also the word for clitoridectomy.

¹⁶ Id. at 175.

¹⁷ Josiah A.M. Cobbah, African Values and the Human Rights Debate: An African Perspective, 9 HUM.RTS.Q. 309, 310 (1987).

¹⁸ See, e.g., Clark, supra note 5, at 285.

¹⁹ Amartya Sen, More Than 100 Million Women Are Missing, N.Y.REV. OF BOOKS, Dec. 20, 1990, at 61-64.

²⁰ For a concise account of the connections which are made between these factors and declining traditional values, see Elizabeth Fox-Genovese, Women's Rights, Affirmative Action, and the Myth of Individualism, 54 GEO.WASH.L.REV. 338-74, esp. at n. 46 (1986).

²¹ For example, Babette Francis, leader of Endeavour Forum (formerly called Women Who Want to Be Women), an Australian anti-feminist group, attributes the decline of traditional moral values in a permissive society to the weakened distinction between the public and the private spheres. Describing a "massive campaign of thought control and censorship to eliminate the traditional family and traditional values," Francis rails against women who argue for more rights for women:

In order to achieve the unisex utopia which they believe is their right, feminists demand increasing levels of government intervention and control over the day to day workings of the marketplace, the education system and even the interactions between private individuals.

BABETTE FRANCIS, FEMINISM: THE SIX FRAUDS 1 (Endeavour Forum Publications, 1990). The interference in the private sphere co-exists with women entering the public sphere, and this in turn spells the moral decline of culture: "[o]ne of the consequences," Francis writes, "of feminist antipathy to marriage has been the advent of the permissive society: alternative lifestyles and no-fault divorce laws." Id.

²² For a particularly marked instance of the effect of these arguments in the international arena, seeClark, supra note 5.

²³ MARY DALY, GYN/ECOLOGY: THE METAETHICS OF RADICAL FEMINISM 160 (1978). See also Valerie Amos & Pratibha Parmar, Challenging Imperial Feminism, 17 FEMINIST REV. 3-19 (1984); Angela P. Harris, Race and Essentialism in Feminist Legal Theory, 42 STAN.L.REV. 581-616 (1990); Marlee Kline, Race, Racism and Feminist Legal Theory, 12 HARV.WOMEN'S L.J. 115-50 (1989).

²⁴ The anthropologist Sherry B. Ortner provides a lucid account of this view in Sherry Ortner, Is Female to Male as Nature is to Culture?, in WOMAN CULTURE AND SOCIETY 67, 79 (Michelle Zimbalist Rosaldo & Louise Lamphere eds., 2d ed. 1983). On the universal validity of the term "patriarchy" Hester Eisenstein writes that:

despite many differences of detail distinguishing the lives of women in the West from those of their Sisters both in developed socialist countries and in the under developed Third World, the fundamental fact of male domination over women could be discerned in all societies. The term 'patriarchy' was therefore justified by this fact, that of the 'universal' oppression of women by men.

HESTER EISENSTEIN, CONTEMPORARY FEMINIST THOUGHT 5 (1984). See also Claire C. Robertson, Never Underestimate the Power of Women: The Transforming Vision of African Women's History, 11 WOMEN'S STUD.INT'L F. 439 (1988); Michelle Zimbalist Rosaldo, The Use and Abuse of Anthropology: Reflections on Feminism and Cross-Cultural Understanding, 5 SIGNS 389 (1980); Marilyn Strathern, An Awkward Relationship: The Case of Feminism and Anthropology, 12 SIGNS 276 (1987); Marnia Lazreg, Feminism and Difference: The Perils of Writing as a Woman on Women in Algeria, 14 FEMINIST STUD. 81 (1988); Chandra Mohanty, Under Western Eyes: Feminist Scholarship and Colonial Discourses, 30 FEMINIST REV. 61 (1988); Gayatri Chakravorty Spivak, French Feminism in an International Frame, 19 YALE FRENCH STUD. 154 (1981); Donna J. Sullivan, Gender Equality and Religious Freedom: Toward a Framework for Conflict Resolution, 24 N.Y.U.J.INT'L L. & POL. 795 (1992).

²⁵ See generally Isabelle R. Gunning, Arrogant Perception, World-Travelling and Multicultural Feminism: The Case of Female Genital Surgeries, 23 COLUM.HUM.RTS.L.REV. 189 (1992).

²⁶ Report of the Working Group on Traditional Practices Affecting the Health of Women and Children, U.N. Sub-Commission on the Prevention of the Discrimination and Protection of Minorities, U.N.Doc. E/CN.4/1986/42 (1986). The final report of the special rapporteur was presented in 1991. Halima Embarck Warzazi, Special Rapporteur, Study on Traditional Practices Affecting the Health of Women and Children, Final report to the Subcommission on Prevention of Discrimination and Protection of Minorities, U.N.Doc. E/CN.4/Sub.2/1991/6 (1991).

²⁷ Gunning, supra note 25, at 244.

²⁸ Pierre Bourdieu, The Force of Law: Toward a Sociology of the Juridical Field, 38 HASTINGS L.J. 805, 819 (1986-87). In the discipline of international relations theory Chris Brown echoes Bourdieu's finding, describing the Western logic "that universal conclusions can be drawn from initially European premises." BROWN, supra note 7, at 342.

²⁹ See generally HENRY MCDONALD, THE NORMATIVE BASIS OF CULTURE: A PHILOSOPHICAL INQUIRY 3-9 (1986).

³⁰ As quoted in Kirsty Magarey & Elizabeth Evatt, Genital Mutilation: A Health and Human Rights Issue, AUSTRALIAN DEVELOPMENT STUDIES NETWORK BRIEFING PAPER NO. 18, at 3 (1990).

³¹ PRESIDENT JOMO KENYATTA, FACING MOUNT KENYA: THE TRIBAL LIFE OF THE GIYUKU 134 (1953). By way of contrast to the Kenyan nationalism which reinforced the practice of female genital mutilation, it is interesting to note that in Ethiopia, in the areas occupied by the Eritrean People's Liberation Front Army in 1977-78, the practice was abolished and appears not to have been reinstated. See Kay Boulware-Miller, Female Circumcision: Challenges to the Practice as a Human Rights Violation, HARV. WOMEN'S L.J. 155, 167-68 (1985) (decribing this policy as accounting for the large numbers of girls who joined that army).

³² On Shari'a values generally, see James Dudley, Human Rights Practices in the Arab States: The Modern Impact of Shari'a Values 12 GA.J.INT'L & COMP.L. 55 (1982).

³³ See, e.g., Carole Pateman, Feminist Critiques of the Public/Private Dichotomy, in PUBLIC AND PRIVATE IN SOCIAL LIFE 281, 287-90 (Stanley I. Benn & Gerald F. Gaus eds., 1983).

³⁴ See Anika Rahman, Religious Rights Versus Women's Rights in India: A Test Case for International Human Rights Law, 28 COLUM.J.TRANSNAT'L L. 473 (1990); Zakia Pathak & Rajeswani Rajan Sunder, Shahbano, 14 SIGNS 558 (1989); THE SHAH BANO CONTROVERSY (Ashgar A. Engineer ed., 1987). These sources are relied on generally for the account given here. For another example of the conflict between women's rights (the regulation of the private sphere) and equal constitutional protection, see B.A. Rwezaura, Tanzania: Family Law and the New Bill of Rights, 29 J.FAM.L. 453 (1990-91).

³⁵ § 125 Order for maintenance of wives, children and parents.

(1) If any person having sufficient means neglects or refuses to maintain

(a) his wife, unable to maintain herself, ... a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife ... at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit ... Explanation. For the purposes of this chapter ...

(b) 'wife' includes a women who has been divorced by, or has obtained a divorce from, her husband and has not remarried ...

(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment is made.

INDIA CODE CRIM.PROC. § 125 as quoted in Rahman, supra note 34, at 476 n. 18.

³⁶ It seems that the India Code of Criminal Procedure § 125 and its predecessor had been used by both Muslin and non-Muslim women since their enactment. It is not clear why the case of Shah Bano rather than any other prompted such a dramatic response from the Muslim community. One of the reasons given is that it was the first time that the Supreme Court of India had purported to interpret the Quran. It did so in order to show that the Quran requires Muslim husbands to provide maintenance for their wives beyond the iddat period. The Court relied on interpreted Ayats No. 241 and 242 as follows: Ayat 241 says that "for divorced women, maintenance should be provided on a reasonable scale. This is a duty on the righteous." Ayat 242 says "Thus doth God make clear His signs to you in order that you may understand." Mohammed Ahmed Khan v. Shah Bano Begum, 3 S.C.R. 844, 859-60 (1985) (India).

The Muslim Personal Law varies according to the different Schools of Muslim thought. Generally speaking, however, on divorce a Muslim woman is entitled to two claims against her husband, both of which grant only temporary maintenance. The first is for maintenance during iddat which is the period a woman must wait before remarrying after death or divorce. This time runs for three menstrual periods or three months if a woman is no longer menstruating. The second claim is for mahr which is a payment a husband must make upon marriage. It is usually divided into two payments: 'prompt mahr' upon marriage and 'deferred mahr' payable upon the dissolution of marriage by death or divorce. A third claim, mataa obligates a husband to provide for his ex-wife in the longer term. Mataa is considered by the majority of Sunni Muslims to apply only to more orthodox Muslims and is not enforced by secular courts under the personal law. Shah Bano's former husband, a prominent lawyer named Mohammed Ahmed Khan, successfully argued against this claim in the lower courts on the basis that he was not a pious enough observer of the faith to be obligated to pay this mataa. In interpreting the Quran to include payment of mataa the Supreme Court was perceived to have usurped the role of Muslim scholars and jurists by granting extended rights to Muslim women. The Muslim Women (Protection of Rights in Divorce) Act 1986 was passed to 'entitle' women to the first two (very limited) claims under the Personal Law, and to disentitle them from seeking relief under the Criminal Code. Section 3 of the Act entitles women to "reasonable and fair provision and maintenance to be paid within the iddat period" and "to an amount equal to the sum of the mahr." Rahman, supra note 34, at 474-78.

³⁷ Shah Bano herself was convinced by the Muslim leaders that the decision was contrary to Quranic principles, and issued an open letter addressed to all Muslims rejecting the decision and demanding the withdrawal of the judgment. THE SHAH BANO CONTROVERSY, supra note 34, at 238.

³⁸ The Muslim Women (Protection of Rights in Divorce) Act, 1986, A.I.R. ANN.INDEX 152, Rahman supra note 34, at 481 n. 41.

³⁹ Rahman, supra note 34 at 482; seealso Pathak & Rajan Sunder, supra note 34, at 561.

⁴⁰ I use the term 'equal justice' meaning 'equal to other women,' not equal to men.

⁴¹ INDIA CODE CRIM.PROC. § 125 (on objects behind § 125); Rahman supra note 34, at 477 n. 3.

⁴² Muslim divorce law is based on an exercise of choice by the husband. It may take the following forms:

(1) Talaq or repudiation by the husband; (2) Ila or a vow by the husband to refrain from consortium for a minimum of three months; (3) Zihar or claim by the husband that the relationship is analogous to certain prohibited consanguinous relationships; (4) Zhula or payment to the husband of a sum of money; (5) Mubaraat or separation by mutual consent; (6) Li'an or adultery committed by the wife.

Rahman, supra note 34, at 475 n. 13.

⁴³ Rahman, supra note 34, at 481 n. 45.

⁴⁴ Id. at 474 n. 4. See also Pathak & Sunder Rajan, supra note 34, at 560.

⁴⁵ Id.

⁴⁶ Rahman, supra note 34, at 489.

⁴⁷ Id. at 497.

⁴⁸ Sen, supra note 19, at 63.

⁴⁹ NAOMI SCHOR, READING IN DETAIL 4 (1987).

⁵⁰ The term 'female genital mutilation' is used here rather than 'female circumcision' because "any definitive and irremediable removal of a healthy organ constitutes mutilation." Magarey & Evatt, supra note 30, at 2, citing OLAYINKA KOSO-THOMAS, THE CIRCUMCISION OF WOMEN: A STRATEGY FOR ERADICATION 16 (1987). Magarey and Evatt write that:

The inadvisability of using the term female circumcision is highlighted by the fact that, by drawing an analogy to male circumcision, the use of the phrase obscures the dramatically different effects of female circumcision. Robin Morgan gives a more useful analogy when she points out that, despite the similarities between the practices referred to as circumcision i.e. that both are practiced with no medical necessity and, in fact, with deleterious side effects to health--clitoridectomy is more analogous to total penisectomy than to circumcision.

There is an extensive literature on the issue of female genital mutilation. I rely most heavily on the human rights papers of Boulware-Miller, supra note 31; Katherine Brennan, The Influence of Cultural Relativism on International Human Rights Law: Female Circumcision as a Case Study, 7 J.L. & INEQUALITY 367 (1989); Magarey & Evatt, supra note 30; Alison Slack, Female Circumcision: A Critical Appraisal, 10 HUM.RTS.Q. 137-86 (1988); Warzazi, supra note 26. See also Raqiya Haji Dualch ABDALLA, SISTERS IN AFFLICTION (1982); ASMA EL DAREER, WOMAN WHY DO YOU WEEP? (1982). FRAN P. HOSKEN, THE HOSKEN REPORT (3d. ed. 1982 & supp. 1983); NAWAL EL SAADAWI, THE HIDDEN FACE OF EVE (1980); L. SANDERSON, AGAINST THE MUTILATION OF WOMEN (1981); AWA THIAM, LA PAROLE AUX NEGRESSES (1978); SCILLA MCLEAN & STELLA E. GRAHAM, FEMALE CIRCUMCISION, EXCISION AND INFIBULATION, THE FACTS AND PROPOSALS FOR CHANGE, MINORITY RIGHTS GROUP REPORT, No. 47 (1983).

⁵¹ Boulware-Miller, supra note 31, at 176 n. 121.

⁵² Id. at 164.

⁵³ Id.

⁵⁴ Warzazi, supra note 50, at 36.

⁵⁵ See infra Part III.A.

⁵⁶ Below I discuss the fact that "further study" in the sense of scientific or cross-cultural research will reveal no answers because the question is one of value and not fact; the lesser value accorded women has been nowhere solved by finding 'scientific' facts to demonstrate that this should not be so.

⁵⁷ HOSKEN, supra note 50. It takes on average 10-15 minutes for an infibulated woman to urinate. Magarey & Evatt, supra note 30, at 2.

⁵⁸ 'Africa' as used in this essay includes sub-Saharan and Arab countries.

⁵⁹ Warzazi, supra note 26, at 3.

⁶⁰ Id. ¶ 12.

⁶¹ Magarey & Evatt, supra note 30, at 2. I am unsure what 'insatiability' means. It is perhaps the result of the fact that despite one of the reasons given in support of the operation being to eliminate sexual desire, to the extent that libido is psychological, this does not occur. See Boulware-Miller, supra note 31, at 169 n. 82.

⁶² Warzazi, supra note 50, at 4.

⁶³ See also Brennan, supra note 50, at 374. The author reiterates the claim that "it curbs women's sexual appetite and thus maintains the morality of society." There are a wide variety of other reasons given, all of which run along the same theme. In some societies it is thought that if not removed, the clitoris will grow to the size of a penis, so in order to ensure sexual differentiation it is necessary to remove this masculine part of a woman. It is also believed that if the clitoris touches the head of a child during birth the child will die. Warzazi, supra note 50, at 4.

⁶⁴ FRANCIS, supra note 21, at 3.

⁶⁵ Boulware-Miller, supra note 31, at 157-58.

⁶⁶ This is logic Boulware-Miller describes as "absurd." Id. at 169.

⁶⁷ Warzazi, supra note 50, at 35.

⁶⁸ Slack, supra note 50, at 479-80.

⁶⁹ Boulware-Miller, supra note 31, at 172.

⁷⁰ Id. at 172.

⁷¹ Id. at 21.

⁷² Brown, supra note 7, at 342.

⁷³ Id.

⁷⁴ See id. at 339.

⁷⁵ I am using the term 'empirical' as opposed to 'normative.' Empiricism is defined as:

The theory (1) that all CONCEPTS are derived from experience, ... and (2) that all statements claiming to express knowledge depend for their justification on experience.... The opposite of empiricism is RATIONALISM or, more precisely, APRIORISM. The principle of VERIFICATION is a modern formulation of empiricism.

THE HARPER DICTIONARY OF MODERN THOUGHT 269 (Alan Bullock & Stephen Trombley eds., rev. ed. 1988).

Normative is defined as:

In general, concerned with rules, recommendations, or proposals ... [it] tends to imply ... that the standards or values involved are those of some social group rather than of an individual.

Id. at 589.

Human rights as norms or standards are closely linked to apriorism, which is defined in the same source as the idea "that the mind is constitutionally endowed with concepts or ideas which it has not derived from experience" and "that there is knowledge which does not depend for its justification on experience." Id. at 96. This is because human rights are normative claims produced by the absence of that which they claim, and therefore cannot be justified by experience. The physical and social sciences belong in the former category of philosophical definition, and the law in the latter.

⁷⁶ American Anthropological Association, Statement on Human Rights by the Executive Board, 49 AM. ANTHROPOLOGIST 543 (1947).

⁷⁷ Id.

⁷⁸ See supra note 23-27 and accompanying text. With regard to female genital mutilation, Mary Daly refers to a variant of this problem:

Critics from Western countries are constantly being intimidated by accusations of 'racism,' to the point of misnaming, non-naming, and not seeing these sado-rituals. The accusations of 'racism' may come from ignorance, but they serve only the interests of males, not of women ... [I]t is in the interest of women of all races to seeAfrican genital mutilation in the context of planetary patriarchy of which it is but one manifestation.

DALY, supra note 23, at 154. The accusations of racism and neo-colonialism are made more acute by the link between female genital mutilation and nationhood. Marie-Angelique Savane, writes of the campaign against female genital mutilation that: "In the end, this campaign has often done little more than to arouse the ultra-nationalistic reactions spotlighting the right to be different, giving renewed strength to certain feudal practices that oppress African women." Marie-Angelique Savane, Why We are Against the International Campaign, 40 INT'L CHILD WELFARE REV. 37, 39.

⁷⁹ American Anthropological Association, supra note 76, at 541-43 (emphasis added).

⁸⁰ Alison Dundes Renteln, The Unanswered Challenge of Relativism and the Consequences for Human Rights, 7 HUM.RTS.Q. 514 (1985).

⁸¹ Id. at 514.

⁸² Id. at 519.

⁸³ Id. at 531.

⁸⁴ Id. at 538.

⁸⁵ Id. at 519.

⁸⁶ Id. at 518.

⁸⁷ Id. at 514.

⁸⁸ Sen, supra note 19.

⁸⁹ See also Gunning, supra note 25. While more diplomatic than Renteln, Gunning ultimately comes to a similar conclusion. Gunning writes:

The difficult question regarding my preferred scenario, where the process of dialogue leads to a firmer and more broadly shared value against the surgery, is when do we know we have such a shared norm against the surgery that punishment and coercion can be used? There is no easy, abstract answer to the question. In practical terms we will know 'after the fact.' Only after nations have introduced or reintroduced domestic legislation, and their citizenry largely abide by and welcome it, can we be more assured that the norm is shared.

Id. at 247.

Gunning writes that "[t]he continued process of creating shared values around the practice does not inevitably lead to the eradication of the surgery." Id. at 246. This is no doubt correct, but it is also putting the cart before the horse by wanting to change all (patriarchal) values and hoping this will lead to an end of mutilation. Like the United Nations dealing with the issue with "care and sensitivity" nothing will be achieved for a long time. See Boulware-Miller, supra note 50 and accompanying text.

The value that is currently shared between the West and the Third World, however, is that of discrimination against women. The cessation of female genital mutilation is not primarily a matter of norm changing, but of implementing a social and legal program to abolish it. The experience of Western women shows that it is unlikely that all discrimination against women would end with the end of mutilation in those places where it is practised.

⁹⁰ Renteln, supra note 80, at 520.

⁹¹ See generally Fernando R. Téson, International Human Rights and Cultural Relativism, 25 VA.J.INT'L L. 869 (1985).

⁹² Id. at 869 n. 1, quoting President Francois Mitterand on the eve of his trip to the Soviet Union. LE MONDE, May 17, 1984, at 1 ("Our conception of human rights varies neither with latitudes nor with circumstances.") [author's translation].

⁹³ Id. at 869-70.

⁹⁴ Id. at 882.

⁹⁵ Id.

⁹⁶ Id. at 885.

⁹⁷ Id. at 869.

⁹⁸ See supra text accompanying notes 31-2.

⁹⁹ Cobbah, supra note 17; S. Prakash Sinha, Human Rights: A Non- Western Viewpoint, 67 ARCHIV FUR RECHTS--UND SOZIALPHILOSOPHIE 76 (1981); Niara Sudarkasa, African and Afro-American Family Structure: A Comparison, 11 BLACK SCHOLAR 44 (1980).

¹⁰⁰ Cobbah, supra note 17, at 319, quoting DENYS TURNER, ON THE PHILOSOPHY OF KARL MARX 32 (1968).

¹⁰¹ Id. at 317.

¹⁰² Id.

¹⁰³ Id. at 312, quoting Gerald E. Frug, The City as a Legal Concept, 93 HARV.L.REV. 1086 (1980).

¹⁰⁴ Clark, supra note 5, and Byrnes, supra note 2.

¹⁰⁵ MCDONALD, supra note 29, at 3.

¹⁰⁶ Sudarkasa, supra note 99, at 44.

¹⁰⁷ Cobbah, supra note 17, at 321.

¹⁰⁸ Sinha, supra note 99, at 77.

¹⁰⁹ Fox-Genovese, supra note 20, at 356-57 (footnotes omitted, emphasis added).

¹¹⁰ Cobbah, supra note 17, at 312.

¹¹¹ Fox-Genovese, supra note 20, at 356.

¹¹² Sen, supra note 19, at 5. Sen puts forward some possible reasons for the diminished survival rate of women across varying cultures, and concludes with the general observation that survival seems correlated with women's economic independence (i.e. access to the public sphere) and with the status accorded their activities within the group to which they belong. It seems reasonable to assume that one of the reasons for women dying in such large numbers compared to men in the same societies is the disparity of the treatment they receive compared to men.

¹¹³ Cobbah, supra note 17, at 314.

¹¹⁴ Id. at 321.

¹¹⁵ Id. at 321.

¹¹⁶ Id. at 319. I examine the origins and uses of these Lockeian conceptions of individualism in part IV.

¹¹⁷ Id. at 314.

¹¹⁸ Id. at 315.

¹¹⁹ Amandatia Pollis & Peter Schwab, Human Rights: A Western Construct with Limited Applicability, in HUMAN RIGHTS: CULTURAL AND IDEOLOGICAL PERSPECTIVES 13 (Amandatia Pollis & Peter Schwab eds., 1979).

¹²⁰ Sen, supra note 19, at 64.

¹²¹ American Anthropological Association, supra note 76, at 539-40.

¹²² Savane, supra note 78, at 39.

¹²³ David Bennett, Postmodernism and Vision: Ways of seeing (at) the End of History, in 3 POSTMODERN STUDIES: HISTORY AND POST-WAR WRITING 259, 260 n. 6 (Theo D'haen & Hans Bertens eds., 1990).

¹²⁴ Hilary Charlesworth, Christine Chinkin & Shelley Wright, Feminist Approaches to International Law, 85 AM.J.INT'L L. 613 (1991).

¹²⁵ Carole Pateman, supra note 33, at 281, 283.

¹²⁶ BRIERLY, THE LAW OF NATIONS 41-42, 68-76 (6th ed. 1963), excerpts reprinted in D.J. HARRIS, CASES AND MATERIALS IN INERNATIONAL LAW 3 (3d ed. 1983).

¹²⁷ Id. at 3 n. 8.

¹²⁸ Report of the Working Group on Traditional Practices Affecting the Health of Women and Children, Working Group on Slavery of the Sub-Commission on the Prevention of Discrimination and Protection of Minorities, at 11-23, U.N.Doc. E/CN.4/1986/42 (1986).

¹²⁹ Harris, supra note 126, at 3 n. 8.

¹³⁰ Id. at 3.

¹³¹ John Locke, An Essay Concerning Certain False Principles, Chapter V.: Of Adam's Title to Sovereignty by the Subjection of Eve, in TWO TREATISES OF CIVIL GOVERNMENT 34 (1924).

¹³² Declaration of the Rights of Man and Citizen, pmbl. (Fr. 1789).

¹³³ John Locke, An Essay Concerning the True Original, Extent and End of Civil Government, in TWO TREATISES OF GOVERNMENT 164 (1962).

¹³⁴ Id. An Essay Concerning Certain False Principles at 112-14.

¹³⁵ Supra note 133, at 117-18.

¹³⁶ Id. at 117.

¹³⁷ Id. at Ch. VI Of Paternal Power, and Ch. XV Of Paternal, Political and Despotical Power, Considered Together, 130, 132.

¹³⁸ Pateman, supra note 33, at 283.

¹³⁹ MARY ASTELL, SOME REFLECTIONS UPON MARRIAGE 66 (1706).

¹⁴⁰ Locke, supra note 132, at 34.

¹⁴¹ Pateman, supra note 33, at 285.

¹⁴² See generally Locke, supra note 133, for example at 179-80.

¹⁴³ Id. at 34.

¹⁴⁴ CAROLE PATEMAN, THE SEXUAL CONTRACT 53 n. 41 (1988).

¹⁴⁵ Cf. Renteln, supra note 80, at 515, 520 (seeing it as a "challenge" which must be "quelled").

¹⁴⁶ Fox-Genovese, supra note 20, at 363. See also Elizabeth M. Schneider, The Dialectic of Rights and Politics: Perspectives From the Women's Movement, 6 N.Y.U.L.REV. 589 (1986).

¹⁴⁷ I do not mean to exclude the myriad factors, largely economic, which contributed to these changes of which the legal representation is but one. However, my task is to reformulate the terms of a debate, so I am concerned with those in which it has formerly been justified.

¹⁴⁸ Elizabeth Fox-Genovese, supra note 20, at 363.

¹⁴⁹ Richard J. Bernstein, Introduction to HABERMAS AND MODERNITY 14 (Richard J. Bernstein ed., 1985).

¹⁵⁰ Pierre Bourdieu, The Force of Law: Toward a Sociology of the Juridical Field, 38 HASTINGS L.J. 814, 819 (1986-87).

¹⁵¹ IMMANUEL KANT, THE METAPHYSICS OF MORALS (1981).

¹⁵² See JEAN-FRANCOIS LYOTARD, THE POSTMODERN CONDITION 31-41 (1981) (on "narratives of the legitimation of knowledge").

¹⁵³ David Baker, Theory as a Cultural System, in FOREIGN VALUES AND SOUTHEAST ASIAN SCHOLARSHIP 1, 9 (Joseph Fischer ed., 1973).

¹⁵⁴ David Bennett, History & Post-War Writing, in POSTMODERN STUDIES, supra note 124, at 261-62.

¹⁵⁵ IMMANUEL KANT, THE CONFLICT OF THE FACULTIES as quoted in P. Bourdieu, supra note 151, at 828.

¹⁵⁶ IMMANUEL KANT, CRITIQUE OF PRACTICAL REASON III, at 132 n. 12.

¹⁵⁷ See Hans Koechler, Democracy and Human Rights, 39 FOREIGN AFF.REP. 75, 82 (Indian Council of World Affairs, May 1990).

¹⁵⁸ Cobbah, supra note 17.

¹⁵⁹ See supra notes 15-16 and accompanying text.

¹⁶⁰ See, e.g., Sen, supra note 19.

¹⁶¹ MacKinnon, supra note 1, at 639.

¹⁶² Jack Donnelly, Human Rights and Human Dignity: An Analytic Critique of Non-Western Conceptions of Human Rights, 76 AM. POL. SCI. REV. 303, 314 (1982) (emphasis added).

¹⁶³ Baker, supra note 153, at 8.

End of Document

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