THE ROLE OF THE STATE IN THE INTRA-GROUP VULNERABILITY OF WOMEN: REVISITING DEBATES ABOUT MULTICULTURALISM THROUGH THE CASE OF POLYGAMY AMONG THE BEDOUINS IN ISRAEL.

Date22 September 2020
AuthorZucker, Miriam

INTRODUCTION

The Article examines the intra-group vulnerability of minority women, focusing on the context of polygamy among the Bedouin-Arabs in Israel, to explore two questions: First, should the liberal state address concerns about the oppressive potential of minority cultures' practices for women? Second, if so, what approach should be taken to this end, and how should this approach inform state laws?

Critical work discussing liberal multiculturalism has generated different proposals for addressing such intra-group vulnerability concerns. But if we attempt to practically implement these proposals, we find that the proposed solutions come down to a binary choice between heavy-handed interventionism and a laissez-faire approach. Looking into actual cases of intra-group vulnerability to critically reflect on this theoretical scholarship reveals that the scholarship suffers from a striking gap in its proposed solutions--it overlooks the state's role in creating and perpetuating the problem. This oversight can explain the tendency of scholars to fall into this binary. Viewing the state as a bystander restricts these scholars to "response strategies," either intervening against other community members or holding back from acting at all.

Investigating the vulnerability of Bedouin women to oppressive marriage arrangements highlights how the state could be implicated in this problem on different levels. This investigation illustrates how Israel's policy of pushing the Bedouins out of their lands has reinforced this vulnerability. It further elucidates how Israel's legal treatment of polygamy has been significant in perpetuating this vulnerability. Finally, it reveals how discriminatory accessibility barriers to public resources, including family courts and welfare assistance, have made it harder for Bedouin women to resist and break away from oppressive marriage arrangements.

This investigation also allows us to see why recognizing the (partial) responsibility of the state for this problem provides the key to escaping the laissez-faire/heavy-handed interventionism binary. Most significantly, it indicates how removing barriers impairing minority women's access to various public resources can open up paths for these women to leave and resist unfavourable aspects of their community life, without forcing them to exit their community altogether.

Part I frames the debate around multiculturalism and feminism. Part II critically discusses the solutions that scholars propose for addressing the vulnerability of women and other less powerful members of minority communities to oppressive treatments in these communities, to show how the literature is characterized by a rigid binary choice between starkly different responses to this problem of intra-group vulnerability. On the one hand, there are the interventionists, who would use the power of the state. According to this interventionist position, the liberal state should interfere to enforce liberal rights in these communities. On the other hand, various exit right models are proposed. These models focus on fostering the ability of members of oppressed groups within minority communities to leave the group to escape oppression. But, as critics have pointed out, women in minority cultures have less access to the resources and opportunities needed to successfully exit their community, and the consequences of leaving can be grave for many women. Thus, in effect, the exit right solution allows the state to take a laissez-faire approach and do nothing to tackle the problem. Part III suggests an alternative understanding of the exit right solution as a gradational concept and shows how this understanding, integrated with a recognition of the role of the state in the problem, offers a way out of the binary choice between heavy-handed interventionism and a laissez-faire approach.

Parts IV and V delve into the case of polygamy among the Bedouins in Israel to demonstrate the role of the state in the intra-group vulnerability of women along two significant axes. Part IV shows how the state is involved in creating background conditions conducive to intra-group victimization by revealing how Israel's dispossessing land regime harmed Bedouin women and has encouraged polygamy in this community. Part V illustrates how Israel continues to play a major role in this vulnerability through its legal treatment of polygamy. This legal treatment oscillates in a binary between policies in criminal law and welfare law that attempt to eradicate the practice by sanctioning polygamous families, and a hands-off approach--a binary which institutionally replicates the false binary choice between interventionism and a laissez-faire approach that characterizes the theoretical literature on intra-group vulnerability. Part VI delineates a path out of this binary by demonstrating how the gradational exit right proposal can be implemented in actual contexts. Through an analysis that traces how discriminatory laws and policies reinforce obstacles to the ability of Bedouin women to access family courts, I point to the kind of work that should be done to address the role of the state in the problem of women's intra-group vulnerability. I highlight that this work should include positive measures to remedy, or at least alleviate, the harms that the state has inflicted on these women--i.e., beyond the measures that should be taken to comply with the state's "ordinary," negative duty not to discriminate against groups of individuals. Part VII concludes by indicating how the recognition of the state's role in this problem has the potential to relax tensions between multiculturalism and feminism.

  1. Multiculturalism, Feminism, and the Problem of Intra-Group Vulnerability

    In the last fifty years, we have witnessed a shift in the relationship between the liberal state, the individual, and cultural minorities. Assimilationist and monocultural nationstate models were contested and increasingly displaced by newer multicultural models. State-neutrality and toleration--which were formerly widely accepted among liberal states as appropriate standards for treating cultural differences--gave room to a more robust standard of recognition. (1) Rather than ignoring cultural differences or otherwise allowing some practices that stand in tension with liberal values and norms in the name of tolerance, this new standard requires the state to recognize the equal right of cultural minority members to practice and maintain their culture.

    Whereas older models of citizenship and the state emphasize the direct right and duty-based relationship as between the state and the individual, multicultural models add the group to the equation. These new models acknowledge the recognition of cultural minority groups as a prerequisite for the ability of their members to equally enjoy their freedoms and rights. (2) According to the multicultural idea, a true commitment to cultural diversity requires the state to recognize the rights of cultural minority members for special consideration.

    However, it was not without criticism that the multicultural wave swept the Western developed world. (3) One criticism views multiculturalism as a separatist project, arguing that it weakens the bonds of solidarity. According to this line of criticism, emphasizing cultural differences between citizens comes at the expense of recognizing what people have in common. (4) A second type of criticism draws attention to inequalities within cultural minority groups and the way that these groups can oppress their own internal minorities--who might be women, children, LGBTQ+ individuals, members of a lower caste, low-income individuals, and other groups of less powerful members. Works addressing this second type of criticism are collectively known as the literature on "minorities within minorities." (5) Feminist scholars who write in this vein highlight the disproportionate costs to women in traditional minorities when a multicultural agenda is adopted. Multicultural policies, they argue, encourage governments and public authorities to tolerate cultural practices that undermine gender equality. Feminist critics further argue that granting these groups special rights could reinforce patriarchal oppression, given the heavy burden borne by women in upholding certain traditions. (6)

    While liberal multicultural theorists have recognized the role of the state in the injustice towards minority communities (or inter-group vulnerability), scholars' discussions on injustice within them (or intra-group vulnerability) treat the state as a bystander. As a bystander, the state is only called to respond to intra-group vulnerability, and it is thus free to decide whether to address this problem. In other words, according to this view, the state may be asked to respond to but not be held accountable for the occurrence of this problem. However, this Article disputes this presumption. Through contextual inquiry into the case of polygamy among the Bedouins in Israel, it shows how the state is implicated in the intra-group vulnerability of minority women. Given the role of the state in creating or perpetuating the conditions that render minority women vulnerable to oppressive treatment in their community, I argue that the state has a duty to address this problem of intra-group vulnerability. I further argue that recognizing this responsibility is key to overcoming the limitations of the theoretical solutions that scholars have proposed for addressing intra-group vulnerability.

  2. Identifying Gaps in the Theoretical Scholarship on Intra-Group Vulnerability

    Critical work on liberal multicultural theories has generated different proposals for addressing concerns around the problem of intra-group vulnerability. This scholarship offers two types of solutions. The first type, which I define as intervention to protect liberal rights, advances liberal rights as inviolable. According to this...

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