INTRODUCTION I. HOW FEMINISM BECAME ENTANGLED IN THE CONCEPT OF CULTURE A. Feminism Versus Culture: Equality > Culture B. Relativist Critiques of Feminism: Culture Versus Culture C. Post-Essentialist Critiques of Culture: Taking Apart Cultures D. Responses to Post-Essentialist Critiques of Culture 1. Transforming cultures 2. Minimizing culture II. A HYPOTHETICAL CASE A. A Dispute over a Gift B. The Substantive Law Dimensions C. The Cultural Dimensions 1. The culture of household--corporation and kinship 2. The postcolonial dimension 3. The transnational dimension D. The Feminist Dimensions III. THE CONTRIBUTION OF A CONFLICTS APPROACH: INTRODUCING TECHNICALITIES A. Capturing the Insights of the Feminism/Culture Debate 1. Seeing culture--the "foreign element". 2. Culture and agency--pleading and proving foreign law B. Revealing New Possibilities 1. Splitting the power to decide from the question of whether to defer to another normative community--jurisdiction and choice o flaw 2. "As if" (I)--characterization 3. Slicing issue by issue--depegage 4. "As if" (II)--as if the conflict could disappear 5. The ethical moment--public policy IV. "AS IF": LEGAL THEORY THROUGH TECHNIQUE V. FEMINISM AS TECHNIQUE A. No Dialogue, No Tolerance, No Compromise 1. No dialogue 2. No tolerance 3. No compromise B. Feminism in the Conflicts Style CONCLUSION INTRODUCTION
German Chancellor Angela Merkel, French President Nicholas Sarkozy, and British Prime Minister David Cameron have each grabbed world headlines of late with pronouncements that their states' efforts to create a multicultural society have failed. "Utterly failed," according to Merkel in a speech to young members of her party in October 2010, asserting that the onus should be on immigrants to do more to integrate into German society. (1) "Oui, c'est un echec," Sarkozy responded bluntly in a February 2011 televised exchange with voters (2)--puzzling those who noted that France has been relatively inflexible about minorities' cultural practices, banning headscarves in schools and preparing to introduce a separate ban on face veils in all public places. (3) In announcing he would soon present new policies designed to strengthen Britain's collective identity, David Cameron was equally hard hitting:
State multiculturalism is a wrong-headed doctrine that has had disastrous results. .... Take forced marriages. In Bradford, where I was last week, schoolgirls under the age of sixteen have simply disappeared from school. Nobody knows where they are. And, until recently, there was little investigation--despite the fact that it is likely that they may have been drugged, imprisoned, kidnapped and forced into an unwanted marriage on the other side of the world. (4) Headscarves, face veils, the British prime minister's sensationalist example of schoolgirls drugged and dragged off to a forced marriage in a backward country--as so often, domestic debates about the limits of multiculturalism revolve around the treatment of women. Much the same is true of foreign policy debates about human rights in non-Western countries. Consider, for example, that an independent bipartisan U.S. federal government commission that monitors other countries' compliance with the international human right to religious freedom has emerged as a persistent critic of Islamic countries for their violations of women's equality. (5)
In contrast to such political resolve, however, there seems to be widespread if awkward agreement that Western academic feminism has become bogged down in the problem of "culture." (6) By the problem of culture, we mean not that actual cultures have proved resistant to efforts to further gender equality (although that is also the case), but that as understandings of the concept of culture have changed, it has become more and more complicated to frame, let alone resolve, the issues raised by veiling, clitoridectomy, polygamy, and other cultural practices considered oppressive to women by Western standards. Is the question whether to give our commitment to gender equality precedence over claims that a practice is fundamental to a culture--or is it actually a question of competing cultures? Do Western feminists fail to recognize the choices made by women in other cultures and, conversely, the cultural conditioning of their own? What should we do when confronted with internal disagreements over what is fundamental to another culture? And so on.
It is not a stretch to say that the much-noted brain drain from feminism is' partly due to the intellectual and ethical morass the "feminism/culture" debate has become. (7) "Everywhere I go," Janet Halley has written, "women complain to me that academic feminism has lost its zing. Many of the key intellectual figures in feminism have decamped to other endeavors." (8) Indeed, Halley herself argues that feminists should "take a break from feminism." (9)
As Martha Minow has put it, the debate over women and cultural accommodation has become a number of predictable moves in a game. (10) In Part I of this Article, we trace a succession of challenges for legal feminism caused by developments in how culture is conceived, culminating with the post-essentialist idea of culture as "invented tradition." Along the way, we highlight a number of important insights and fault lines that emerge from the feminism/culture debate and also several common strategies for resolving the issue.
In the subsequent Parts, we suggest a way to engage in the practical political work of feminism in an intellectually vibrant fashion and, in particular, a way to both build on the insights of the feminism/culture debate and gain some critical leverage on it rather than "take a break." The path we propose draws on an unlikely legal paradigm---conflict of laws. Conflict of laws is the part of private law that deals with cases having a foreign element. "Foreign element" simply means a connection to some legal system other than that of the jurisdiction in which the case is being tried, the other jurisdiction being either a foreign state or another subdivision of the same state. The contract in dispute might be made with a foreign company, for example, or the lawsuit might concern the ownership of property situated abroad. The questions that conflict of laws answers are whether a court can and should hear a case with a foreign element, and if so, what law it should apply. That is, a court must first decide whether it has jurisdiction, given that the case could potentially be tried elsewhere instead. Once the court has taken jurisdiction, conflicts governs the choice of law question: namely, whether the court applies its own law to some or all of the issues, as opposed to the law of another jurisdiction connected to the case. A Canadian court might apply U.S. tort law, for example, or a Maryland court might apply South Dakota contract law.
At first glance, the conventional associations of conflicts make it seem unpromising for feminism/culture issues. For one, although conflict of laws does deal with the area of the family, in U.S. legal circles it is more often associated with issues such as out-of-state car accidents, cross-border products liability, and international antitrust litigation than with issues commonly coded as cultural. (11) We start, however, by illustrating that the day-to-day areas of work and the economy that make up the nuts-and-bolts issues of private law can raise feminism/culture issues as well. Part II introduces a hypothetical case based on an actual dispute litigated in California between a Japanese father and daughter over a transfer of shares. Our choice of example thus cuts against the often-criticized tendency of Western feminists to focus on "exotic" ethical questions such as veiling and clitoridectomy that are usually the province of constitutional law or international human rights law, to the neglect of questions about the economic conditions of women in other cultures. (12) It also shows that economics, in fact, takes us back to the same feminism/culture debate. (13) Even mundane aspects of corporate law prove to be dizzyingly indeterminate and complex in their feminist and cultural dimensions.
What makes conflict of laws seem particularly counterintuitive as a method for dealing with conflicts of feminism and culture, though, is not the kinds of private law issues it brings to mind, but its highly technical nature. The field has famously been described as a "dismal swamp ... inhabited by learned but eccentric professors who theorize about mysterious matters in a strange and incomprehensible jargon." (14) Yet a court required to apply foreign law in a conflicts case runs up against the same "how different is too different" question that confronts feminists in any instance of feminism/culture--the ethical moment at which some feminists will decide that compromise with or tolerance of cultural difference ends. In contrast to feminism/culture analyses, however, a conflicts analysis gets to that ethical moment only after going through a series of technical steps. We will show that far from being a shortcoming of the field, these technicalities bring to the fore a vital level of detail that feminism/culture analyses must generate from first principles--and seldom achieve. Moreover, we argue that as a matter of sociology of knowledge, adhering to the constraints of form that characterize conflicts technicalities more often opens up an alternative resolution, or indeed alternative questions for theory and practice, and hence renders the "how different is too different" question less inevitable.
Thus the fruitfulness of conflicts lies in viewing it as technique. By "technique," we mean the technical aspect of law, particularly although not uniquely present in private law, which foregrounds questions of form. The technical aspect of law encompasses:
(1) certain ideologies legal instrumentalism and managerialism ... (2) certain categories of...