Piercing the veil.

AuthorSunder, Madhavi
PositionWomen's human rights activists in Muslim communities

CONTENTS

INTRODUCTION I. GROUNDWORK A. The New Sovereignty B. The New Enlightenment II. TRANSITION A. Law's "Past" B. Law's "Other" C. Constructing and Obstructing D. Cases in Point 1. CEDAW (Global) 2. Personal Laws (India) 3. Freedom of Religion and Tribal Sovereignty (United States) 4. Customary Laws (Zimbabwe, Nigeria, and South Africa) III. CONFRONTATION A. Human Rights Networks: Women Living Under Muslim Laws 1. Identity Problems 2. Identity Strategies 3. Identity Norms 4. WLUML's Challenge to Human Rights Law B. Human Rights Manuals--Claiming Our Rights 1. Translation 2. Textualism 3. Constructivisim 4. Reconstructivism 5. Rumblings of a New Enlightenment IV. FUTURES A. Piercing the Veil of the New Sovereignty B. Operationalizing the New Enlightenment 1. Passive Proceduralism 2. Robust Proceduralism 3. Substantive Prescriptions CONCLUSION INTRODUCTION

The failure of the international community to intervene in Afghanistan prior to September 11th was more than a failure of politics. It was also a failure of law. To put it bluntly, human rights law has a problem with religion. In a postmodern world in which the nation-state has been deconstructed and eighteenth- and nineteenth-century notions of unmediated national sovereignty have been properly put to rest, religion--and its attendant category, culture--represent the New Sovereignty. (1) Human rights abuses that since World War II are no longer acceptable when committed by states (2) are paradoxically tolerated when justified in the name of religion or culture. September 11th crystallized this fact. The infamous Taliban regime in Afghanistan assumed power in 1996 and immediately began stripping women of fundamental human rights (3) to education, (4) healthcare, (5) work, (6) and movement. (7) But war, not law, defeated what has been described as the world's most ruthless fundamentalist regime. For all its pomp and circumstance, international human rights had little to do with it. (8)

Current scholarship posits an inherent conflict between women's rights and culture. (9) But this Article argues that religion qua religion is less the problem than is our traditional legal construction of this category. Premised on a centuries-old, Enlightenment compromise that justified reason in the public sphere by allowing deference to religious despotism in the private, human rights law continues to define religion in the twenty-first century as a sovereign, extralegal jurisdiction in which inequality is not only accepted, but expected. Law views religion as natural, irrational, incontestable, and imposed--in contrast to the public sphere, the only viable space for freedom and reason. Simply put, religion is the "other" of international law.

Today, fundamentalists are taking advantage of this legal tradition. (10) Yet, contrary to law's centuries-old conception, religious communities are internally contested, heterogeneous, and constantly evolving over time through internal debate and interaction with outsiders. (11) And this has never been so true as in the twenty-first century. Individuals in the modern world increasingly demand change within their religious communities in order to bring their faith in line with democratic norms and practices. (12) Call this the New Enlightenment: Today, individuals seek reason, equality, and liberty not just in the public sphere, but also in the private spheres of religion, culture, and family. (13) Current law, however, elides these claims for modernization. Failing to recognize cultural and religious communities as contested and subject to change, legal norms such as the "freedom of religion," the "right to culture," and the guarantee of "self-determination" defer to the claims of patriarchal, religious elites, buttressing their power over the claims of modernizers. Paradoxically, law's failure to question or revisit its old Enlightenment views is obstructing the emergence of the New Enlightenment. In short, human rights law, not religion, is the problem. (14)

But on the ground, women's human rights activists are piercing the veil of religious sovereignty. Betraying a growing disconnect between human rights law and human rights practice, this Article presents a close study of women's human rights activists working in Muslim communities and countries. It demonstrates that, despite law's formal refusal to acknowledge claims of internal dissent, women are nonetheless claiming their rights to challenge religious and cultural authorities and to imagine religious community on more egalitarian and democratic terms. Just as we "pierce the veil" of corporate sovereignty in cases of injustice or fraud, (15) women activists are asserting a right to confront oppressive laws and practices otherwise legally shielded in the name of religion.

Scholars have failed to recognize the full significance of these efforts. By insisting, in the words of President George W. Bush, "if you're not with us, you're against us," (16) scholars celebrate campaigns for women's rights in Muslim communities for their similarities to Western women's rights movements, but elide what is different in these claims. (17) In fact, these campaigns present powerful critiques of current law, which offers women a right to religious freedom (on leaders' terms) or to equality (within the public sphere), but no right to both. Envisioning a third way, women human rights activists in Muslim communities are pursuing equality and freedom within the context of religion, not just without it.

We ignore these activists at our peril. In an era of rising fundamentalism in which women's--and men's--lives are increasingly governed by private, not public, laws, (18) securing human rights requires deconstructing religion and culture. As the anthropologist Lila Abu-Lughod writes, "We have become politicized about race and class, but not culture." (19) The same can be said--perhaps more forcefully--about religion, (20) which law's Enlightenment origins have encouraged us to fear and to worship. Unmasking the politics and mutability of religion that traditional legal narratives have concealed, we must identify that part of religion that is a human or legal construction and thus requires justification and accountability. (21) As Kahled Abou El Fadl asks, "In Islamic thought, God is the authoritative source of law, but what is the balance between God's authoritativeness and the potential for human authoritarianism?" (22)

This is nothing less than a question of life or death. In Pakistan last summer, a mentally disturbed young man was stoned to death for alleged blasphemy, and a tribal council ordered that a young woman be raped as revenge for a crime allegedly committed by her brother--all on the basis of traditional Islamic Shari'a law. (23) In Nigeria, another woman, Amina Lawal, awaits her fate after an appeals court in that country upheld a Shari'a court's ruling that Lawal be stoned to death because she gave birth to a child outside of marriage. (24) Nigeria's Supreme Court may ultimately decide the case. But as it currently stands, there is no legal theory--either under Nigerian national law or international human rights law--for overturning the pronouncements of a religious court. (25)

In such cases, law's conception of religion and culture matters. So long as law continues to hold a fundamentalist view of religion and culture, it will transfer more power to fundamentalists and traditionalists at the expense of human rights. This Article is an effort to intervene in this process. (26) I lay the groundwork for my argument in Part I, describing the New Sovereignty and the New Enlightenment as parallel movements. Paradoxically, just as claims to absolute religious authority are becoming weaker in the modern world, calls for law to protect or preserve religious authority against claims for change and modernity are becoming more pronounced. Taking advantage of the legal tradition of deference to religion, contemporary fundamentalists are using law to buttress authoritarian and patriarchal claims against the challenges of the New Enlightenment. As this Part shows, whether and how we pierce the veil of the New Sovereignty will have profound consequences for the future of the New Enlightenment emerging on the ground.

In Part II, I revisit the traditional intellectual history of international law in order to better understand how law's construction of religion as law's "other" obstructs new constructions of religion as compatible with rights. I argue that our entrenched narrative of international law as in transition away from the premodern world of religion toward a modern world of secular rights makes no accommodation for the presence of religion, or modern claims for both religion and rights. The result is that, in case after case in both international and national law, law is siding with fundamentalists over modernizers within religious and cultural communities.

Part III turns to the work of the transnational information-sharing and solidarity network, Women Living Under Muslim Laws, and the unexamined archives of women's human rights education manuals, to demonstrate how, on the ground, women activists in the Muslim world are defying the transition narrative and confronting fundamentalist and legal constructions of religion here and now. Rather than accepting the binary framework of religion (on traditional leaders' terms) or rights (without normative community), activists are developing strategies and new human rights theory that enable women to claim freedom and equality within the context of normative community. Based on close readings of nontraditional sources of international law--illuminated by interviews with leading activists from around the globe--I begin to identify in the work of these activists the rumblings of the New Enlightenment, and a conceptually coherent framework for operationalizing modernity within the context of culture and community. In the final Part, I...

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