A critical race feminist conceptualization of violence: South African and Palestinian women.

• Author: Wing, Adrien Katherine
• Position: Conceptualizing Violence: Present and Future Developments in International Law

1. INTRODUCTION

   Until very recently, violence against women was not thought of as a proper subject for international human rights law. There were three interrelated reasons for this exclusion: traditional concepts of state responsibility under international and domestic law that exclude the private sphere of the family and home; misconceptions and ignorance about the prevalence of such violence; and inattention and unwillingness to extend legal notions of equality and anti-discrimination to the area of equality between the sexes.(1)

   This Article seeks to conceptualize violence against women, under both international and foreign domestic law, from the perspective of critical race feminism. "Violence against women exists in various forms in everyday life in all societies. Women are being beaten, mutilated, burned, sexually abused and raped. Such violence is a major obstacle to the achievement of peace."(2) Global statistics demonstrate that the very act of "being female is life threatening."(3) For purposes of this Article, "violence against women" will be defined as the United Nations defined it in the Declaration on the Elimination of Violence Against Women:(4) "any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life."(5)

   This Article will feature two different groups of women: Black South African women(6) and Palestinian women in the West Bank and Gaza Strip.(7) Both groups of women have faced violence from multiple sources external violence from the state and internal violence from the home. "In the ongoing struggles against violence in the family, society and the State, we recognize that the State is one of the main sources of violence and stands behind the violence committed by men against women in the family, the work-place and the neighborhood."(8) South African women face the legacy of legalized racism known as apartheid which the South African government abolished only a few years ago.(9) South African women also simultaneously deal with domestic violeneet(10) at the hands of their own men, who themselves remain victims of apartheid. Palestinian women currently living in the West Bank and Gaza Strip must deal with the ongoing Israeli occupation that still affects almost all of them.(11) Additionally, they must silently endure violence at the hands of their own men, who also remain victims of the Israeli occupation.

   Part II of this Article describes critical race feminism, a jurisprudential addition to both critical race theory and feminism. Part II also presents a conceptualization of violence that will then be applied throughout the rest of the Article. Because critical race feminism believes in evaluating women within their own concrete circumstances, Part III provides a brief overview of the social and legal condition of South African and Palestinian women and the types of violence that affect them. Part IV highlights the possibilities of international law empowering South African and Palestinian women, and specifically discusses the Convention on the Elimination of All Forms of Discrimination Against Women.(12) Because international law is insufficient and unlikely to be of much practical assistance, Part V performs a comparative law analysis by examining how the domestic laws of each jurisdiction presently help or hinder in dealing with violence against women. This discussion will be enhanced by reference to the involvement of the author in advising on the drafting of the interim constitution of South African(13) and the Basic Law of Palestine.(14) In conclusion, the Article calls for a "world traveling"(15) approach by the international community in order to work with South African and Palestinian women to improve their legal and social status within their societies.

2. CRITICAL RACE FEMINISM(16)

   Critical race feminism (CRF) is the latest offshoot in the jurisprudential framework that began with critical legal studies (CLS),(17) and includes feminism(18) and critical race theory (CRT).(19) The CLS theorists have been a group of predominantly progressive or radical white male academics that have critiqued traditional positivist or realist legal jurisprudence. These CLS theorists embrace several premises, including postmodern critiques of the inviolability of laws and hierarchy in Western society. Additionally, one primary method of their analysis is deconstruction which involves the critique of allegedly neutral concepts to expose the actuality of the socially constructed contingent power relationships. Many progressive scholars, including white women and people of color, were attracted to CLS because it exposed various aspects of the nature of domination through law within American society. Yet their analysis was incomplete as there was a lack of attention to the sexual and racial aspects of legal domination.

   CRT embraces the CLS deconstruction methodology to challenge racial orthodoxy. CRT draws from intellectual traditions such as liberalism, law and society, Marxism, postmodernism, pragmatism and cultural nationalism. Furthermore, CRT is skeptical of traditional legal theories that support hierarchy, and so-called neutrality, objectivity, color blindness, meritocracy and ahistoricism. In areas as wide ranging as hate speech, affirmative action and Federal Indian law, CRT questions the ability of traditional legal strategies to deliver racial and social justice.

   Women of color within the legal academy noted that there was sufficient inattention within CRT and traditional feminist jurisprudence to the legal and social plight of the most oppressed groups within American society--African-American, Latina, Asian and Native-American women. Traditional rights jurisprudence seemed to be based on white middle class reasonable man standards, while traditional feminism was based upon reasonable white middle class woman standards. Even much of CRT seemed to present the essentialist term "minority," when it really meant African-American men.

   With respect to the issue of violence against women, traditional rights jurisprudence was silent. This sort of violence was not perceived as a problem for the reasonable man. Feminists have defined five traditional categories of violence against women: "battering, sexual harassment, rape, prostitution, and pornography."20 These categories do not incorporate racialized violence against women. While CRT focuses on the missing racial aspect, it pays insufficient attention to the gendered aspect of racial violence.

   A thorough search of the literature shows that there are more than one hundred law review articles dealing with the intersection of race, class and gender. Many of these articles appear in an anthology edited by the author.(21) Jurisprudentially, CRF has much in common with CRT. CRF regards racism as an ordinary and fundamental part of American society rather than an aberration. It utilizes the well-known narrative technique to construct alternative visions of reality and identity. CRF also adopts feminist notions focusing on the oppressed status of women within society. Furthermore, both CRF and CRT are concerned with practice as well as theory.

   CRF adds to CRT and feminism by placing women of color at the center rather than in the margins or footnotes of the analysis.(22) CRF attacks the notion of the essential woman (i.e., the white middle class woman) and explores the lives of those facing multiple discrimination on the basis of their race, gender, and class, revealing how all of these factors interact within a system of white male patriarchy and racist oppression.(23) CRF seeks to explore and celebrate the differences and diversity within women of color and articulate how the law might improve their status.(24) Thus, while CRF is concerned with theoretical frameworks, it is very much centered on praxis, seeking to identify ways to empower women through law and other disciplines. With respect to the issue of violence against women, CRF focuses on the gendered and racialized aspects of such violence, and how we can design solutions to help women of color.(25)

   CRF goes beyond the domestic focus of the United States that is typical of most scholarship on CLS, feminism, and CRT. CRF embraces a global analysis as well,(26) taking the narrow United States notion of race, and expanding it to look at the legal treatment of women of color, whether they are living in the developing or developed world. After all, women of color in the United States originate and often have continuing links with developing world societies, which themselves play a subordinate role within a postCold War unipolar world in which the United States dominates.

   CRF also enhances the development of twentieth century international law, which is a field that has developed based upon principles enunciated first by American and European white male power elites. Men of color from the developing world did not become involved until their respective nations gained independence or sufficient collective clout in entities like the United Nations. Their voices are still muted, but often rise in discussions of cultural relativism and international human rights. European and American women have only very recently become involved in attempting to reconceptualize international law from a feminist perspective.(27) Ones again, the viewpoints of women of color have been absent,(28) a manifestation of their continued legal and social subordination on multiple grounds, including ethnicity, class, religion, and gender, both within and outside the developing world. CRF adds to the development of international law by focusing on women of color in a theoretical and practical sense. With respect to violence against these women, this Article hopes to make a contribution to a small, but growing body of...