Women and International Human Rights Law Volume 2
Publication Year: 2000, Editors; Kelly D. Askin and Dorean M. Koenig
This collection of writings analyzes the legal groundings of women and human rights laws. With four sections Women and International Human Rights Law Volume 2 explores International Courts and Women, International Instruments, International Organizations and Women, and Regional and Cultural Issues.
Section IV: Select Regional or Cultural Issues, Cultural Relativism and Women’s Human Rights by Mahnaz Afkhami (chapter)
Women have moved from the margins of history to its center and play increasingly important roles in families, communities, and states across the world. In the most recent national elections in the United States, women were instrumental in electing candidates to important political offices, including that of president. In Scandinavian countries, women have become an integral part of the governing process. In Muslim societies, women are the main issue in state-society relations. As women become increasingly aware and assertive across the globe, their demands for equality, participation, and access elicit reactions that range from efforts to curtail the exercise of their rights to their body, as in the United States, to policies that seek to segregate them from all activities that are essential to their ability to compete ini society, as in contemporary Afghanistan.
Women’s ubiquitous presence at the center of politics is unprecedented and phenomenal. History as we know it begins with indifference to women. In the earliest of societies, as in most originary myths, men and women seem to be more or less equal.’ However, as human need begins to exceed the bounty of nature and the procreation of species and the provision of subsistence become more complicated and socially demanding, women gradually lose their equal place in the communal project of procurement and defense. Many lines of argument—biological, environmental, bioenvironmental, or sociological—have been offered to explain, to condemn, or to justify this phenomenon.2 Regardless of their intellectual leanings, however, these arguments typically hold that the persistence of communities depends on institutional arrangements that underlie what we understand today by the term “culture.” These arrangements are said to define the facts, values, and aesthetics of social existence.’ Because relationships in early societies remained static over long periods, facts, values, and aesthetics congealed and assumed an aura of sanctity. As societies began to change, facts, values, and aesthetics also changed disturbing the symmetry and balance among the components of the traditional culture. Pattern gave way to fragmentation. Culture, therefore, became increasingly an alienated concept, describing conditions imagined to have existed rather than the reality of life actually lived in contemporary societies. This confusion is now our primary problem in understanding the issue of women’s human rights in non-Western societies.
This chapter briefly discusses the conflict between the modern use of the term ‘culture’ and women’s human rights, touching on the sources of women’s universal human rights the inalienability of universal rights from the concept of individual freedom, and some ethical problems that attend cultural relativism hen applied to societies that deny the ‘human’ foundation of women’s rights.
WOMEN’S RIGHTS AS UNIVERSAL RIGHTS
The “universal” foundations of women’s human rights are inscribed in several international documents, including, among others, the Universal Declaration of Human Rights (1948), the International Covenant on Economic, Social and Cultural Rights (1966), the International Covenant on Civil and Political Rights (1966), the Convention on the Elimination of All Forms of Discrimination Against Women (1979), the U.N. Declaration on the Elimination of Violence Against Women (1993), the Vienna Declaration and Programme of Action adopted by the World Conference on Human Rights (1994), and the Fourth World Conference on Women held in Beijing (1995). The main points of these documents were encapsulated in the Mission Statement to the Platform for Action of the Fourth World Conference on Women, of which the first and second articles state:
The Platform for Action is an agenda for women’s empowerment. It aims at accelerating the implementation of the Nairobi Forward-looking Strategies for the Advancement of Women and at removing all the obstacles to women’s active participation in all spheres of public and private life through a full and equal share in economic, social, cultural and political decision-making. This means that the principle of shared power and responsibility should be established between women and men at home, in the workplace and in the wider national and international communities. Equality between women and men is a matter of human rights and a condition for social justice and is also a necessary and fundamental prerequisite for equality, development and peace. A transformed partnership based on equality between women and men is a condition for people-centered sustainable development. A sustained and long-term commitment is essential, so that women and men can work together for themselves, for their children and for society to meet the challenges of the twenty-first century.
The Platform for Action reaffirms the fundamental principle set forth in the Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights, that the human rights of women and of the girl child are an inalienable, integral and indivisible part of universal human rights. As an agenda for action, the Platform seeks to promote and protect the full enjoyment of all human rights and the fundamental freedoms of all women throughout their life cycle.
The Platform for Action identifies twelve focus areas as particularly germane to women’s rights: poverty, education, health, violence against women, effect of armed conflict, economic structures and politics, economic structures and politics, inequality of men and women in decision making gender equality, women’s human rights, media, environment, and the girl child.
Thus, for the first time in history, Women’s issues have become coterminous with human issues. The international community now recognizes that a women’s rights are human rights and human rights are women’s rights. Women possesses these rights not because they belong to a particular culture or religion, but because they are human beings. It follows therefore that they also possess the right to be equal with men in all spheres of social endeavor. To achieve this goal, it is imperative that women be allowed and, when necessary, helped to acquire certain capabilities. The unequal condition of women results from a universally repressive and unjust social order that throughout history has denied women the opportunity to gain the capabilities necessary to successful competition. The need to rectify this injustice, at once moral and political, commits governments and societies to specific measures required to promote women’s rights.
The Platform forces that because of the diversities that exist in and among societies, promoting women’s human rights will have to be adjusted to the requirements of local settings. However, it emphasizes that governments and nongovernmental organizations (NGOs) everywhere are obligated to help realize gender equality, and states that while it “respects and values the full diversity of women’s situations and conditions,” it also “recognizes that some women face particular barriers to their empowerment.” These barriers, historically erected by the patriarchal order, have their roots in a variety of economic, social, political, and ideological foundations, as the Platform specifically points out by identifying several focus areas. Opposition to women’s equality, however, is more recently expressed mainly in cultural, including religious, terms. At the First World Conference on Women in Mexico City in 1975, for example, governments accepted in principle the rights inscribed in the major international documents. Most of those that entered reservations did so on political grounds. In the 1993 U.N. Human Rights Conference in Vienna, as well as later in Beijing, some governments rejected many of the same rights on the ground of a supposed conflict between universal human rights and national cultures. In the 1994 Cairo Conference on Population and Development, fundamentalist and conservative positions against women coalesced across societies and North-South boundaries. Islamists, the Vatican, fundamentalist Protestants, rand Eastern totalitarians united in opposition to the concept and practice of women’s universal human rights, questioning the validity of universal human rights not on the ground of political expediency (as in the past) but on moral and cultural grounds.
In relation to the developing societies, many denounced universal human rights was Western parochial concepts and as weapons of cultural imperialism. They argued that judging non-Western societies by these standards injures their communal rights and that, for Muslim countries in particular, Islam provides the basic elements of a jus society, including the fundamental rights of women. A major contention of this position is that women, in East and West alike, have rights because they belong to certain cultures or religions, not because they are individual human beings.
CULTURE AND WOMEN’S RIGHTS
Webster’s Dictionary defines “culture” as “the training and refining of the mind, emotions, manners, tastes, etc.; the result of this refinement of thought, emotion, manners, taste, etc.; the concepts, habits, skills, arts, instruments, institutions, etc. of a given people in a given period; civilization.” There are two distinct strings of meaning in these definitions. The first suggests the best in the arts, manners, literature, music, philosophy, science and all the other refined attributes that a civilization has achieved. This meaning of “culture” is common to all societies. It is also the reason why people everywhere and always have been sensitive to the word itself. To be culturally invaded is abhorrent to everyone– relativists and universalists alike.
The emotional attachment to this denotation of “culture” often confounds discussion when the second meaning is intended. The second string — the concepts, habits, skills, arts, instruments, etc. — constitutes the more modern meaning attached to the term and is originally an invention of the Western social scientists who studied primitive societies in modern time. These societies exhibited social, intellectual and material habits that had remained substantially unchanged over time, patterning and controlling individuals’ thoughts and actions. They resemble “ideal types” that nevertheless existed and were real. The idea of culture derived from these societies was then extended to the study of “traditional societies,” i.e., non-Western peoples. A curious result of this idealization is the similarity that exists between the orientalists’ reports of traditional Islamic societies and contemporary Islamists’ claim to legitimacy based on their descriptions of Muslim societies before they were corrupted by Western influence.
The “traditional society” is thought to be the end result of a series of cataclysmic changes in technology, including a social passage successively from primary hunter-gatherer colonies to horticultural-nomadic and sedentary-agricultural communities. The culture is considered “traditional” in the sense that, for most of the people, the community was primary, preceding the individual who received his/her identity and authenticity rom the place and position she or he was accorded in the family, clan or state. Thus, although values might change, the traditional community persisted essentially in the institutional arrangements that had congealed over many centuries and were sanctified by a mixture of science, religion, and philosophy that produced what Max Weber called an enchanted view of the world. Patriarchy, hierarchically organized and socially solidified over the millennia, derived its authority from tradition– intellectual and material patterns that were thought to have always existed and therefore would always exist. Women, children, and slaves were taught, and for the most part believed, that they lived in the best of possible worlds under God, or gods. Force, though used extensively in this society, was not indispensable to its persistence or integrity. For most people, regardless of their station, social arrangements were legitimate and just. Injustice applied to the individuals who deviated from the rules– the law as given. Kings, priests, and commoners might be unjust; societies never.
Social arrangements were considered just because they were accepted by the community. Or, alternatively, a community was perceived as just because it was held together by its culture. Cultures differed, of course. Chinese, Egyptians, Babylonians, Persians, Greeks, and Israelites, and later, Christians and Muslims, for example, lived under different rules and norms, some upholding human dignity, others decidedly inhuman by modern standards. But, as it concerned women, all rules more or less converged. The Chinese mandarin, the Greek philosopher, the Jewish prophet, the Pauline priest, and the Muslim ‘alim united in assigning women to the lower ranks, not only in society but, more generally, in God’s design. This was the norm everywhere throughout the centuries and women, by and large, accepted it.
Traditional societies, however, were not in all matters as “traditional” as the paradigms of modern anthropology suggested. For example, the life Muslim people actually lived rarely matched the theoretical patterns the orientalists or modern Islamists assign to Islam or past Muslim societies. Muslim people, like most other peoples, lived their lives according to human requirements that were widely shared by other societies. Lifestyles, including governmental organizations, varied among ethnic groups. Not only did Arabs, Iranians, Indians, and Indonesians differ in their norms, mores, and customs, and their understanding of Islam, but each of them also experienced significant internal variations. None lived exactly as the shari’a prescribed. In Iran, for example, a study of lyrical poetry across time, a sure indicator of cultural preference among Iranians, suggests a significant variance between the life pattern preferred and followed by the people, and the legal prescriptions of the shari’a as proclaimed and enforced, often half-heartedly, by the government. Indeed, judge and sheriff — qadhi and muhtasib— were probably the least liked officials of the realm. Medieval Muslims, of course, were devoutly religious and, like medieval Christians an others, did not know how to live except by religion.The shari’a derived law did govern significant aspects of their personal affairs. Life, however, though circumscribed by the law, nevertheless was lived in response to the requirements of human nature– love, passion, fear, pity, greed, kindness, and other common human traits– that often conflicted with the clerics’ prescriptions.
Moreover, behavior and beliefs changed as circumstances changed. To continue with the Iranian example, it took three centuries for Iranians to become preponderantly Muslim. During this period, they absorbed whatever they could of their new holy book, the Qur’an, which was written in Arabic, a language most of them neither read or understood. Most people mixed Islam with their formed Zoroastrian faith according to their gifts as they and their community strove to accommodate the new religion. During the next three centuries, the Mongols and the Timurids invaded Iran and amidst much mayhem, devastation, and brutality brought new values and norms, which then became immersed in a new Iranians- Islamic culture characterized by a splendid array of different modes and tropes in the arts, architecture, philosophy and literature. To describe or explain simply as “traditional culture” the turmoil, the creativity, and the social change Iranians experienced and endured in these circumstances is vexingly inadequate.
The “traditional society” institutionally static and unchanging compared to the modern society, began to change dramatically toward the end of the Middle Ages, first in Europe, and later, in the nineteenth and twentieth centuries, in other parts of the world. The Renaissance, Reformation, Enlightenment, the Industrial Revolution, colonialism, and more recently, the Information Revolution, altered the social structure. A consequence of these changes has been a breakdown of “culture” as conceived and defined by traditional social science or by modern ideologues. We are accustomed, however, to use the term “culture” as if it still denoted the “patterned” interactions that pioneering anthropologists, orientalists, and Islamists assign to primitive, tradition, or “ideal” Muslim societies. The point is important for our appreciation of the concepts of relativity and universality as they apply to the relationship between culture and women’s human rights in societies that have undergone or are undergoing significant and rapid social change. Specifically, the problematization of the term “culture” is germane to the ethics of the choice we make between universal rights, i.e. the rights we have because we are human beings, and rights that are conceived to derive from “cultures.”
THE ETHICS OF CULTURAL RELATIVISM AND WOMEN’S RIGHTS
“Cultural relativity,” writes Jack Donnelly, “is an undeniable fact; moral rules and social institutions evidence an astonishing cultural and historical variability.” Donnelly distinguishes three levels of cultural relativism– radical, strong, and weak. In radical cultural relativism, culture is held to be the only source of the validity of a moral right. Strong cultural relativism allows, according to Donnelly, the universal standards to “serve as a check on potential excesses of relativism.” Weak cultural relativism, on the other hand, holds that “culture may be an important source of the validity of a moral right or rule.” Donnelly also distinguishes a hierarchy of qualitative judgements respecting relativity “in the substance of the list of human rights in the interpretation of individual rights, and in the form in which particular rights are implemented.”
Clearly, cultural relativity is conceptually complex and politically involved, and depending on circumstances, can affect human interaction in all social settings. Consequently, it is naive to suppose that rights that are universally identified and defined, regardless of their intrinsic value, may be implemented in defiance of values, rules and customs that are locally prescribed in the name of culture. This problem, however, is a matter of practical exigency– a question of means– as the Beijing Platform for Action also acknowledges.
The central problem of cultural relativism is that it must deny rights to women (or men) who have become aware that they possess rights because they possess an identity that is theirs independently of the community to which they belong. Each instance of such a demand creates an ethical problem. When the number of demands increases, the ethical question also assumes a significant political dimension. The demand, then, must be repressed by force. The denial of rights becomes an act of violence that under Donnelly’s radical or strong relativisms will necessarily expand to pervade the whole social fabric.
Consider contemporary fundamentalism as an example. Fundamentalism seeks to rearrange social and cultural relations according to blueprints that it judges to be most appropriate because it assumes they are originary and represent social arrangements that have actually existed in the best of times. The good and the past are associated to produce an aura of cultural authenticity presumed to be applicable to the individual, the fundamentalist impulse is almost always anti-individual. Stated differently, fundamentalism, regardless of its origin, almost always privileges the communal law over individual right. History, on the other hand, moves from law to right. As facts, values, and aesthetics of cultural change, individuals are gradually liberated from the force of the law and are left to choose from among all the possibilities that the evolving disorder affords. Women are particularly affected by this disorder because, for the first time in their history, they achieve the possibility of becoming authentic members of the community in their own right. It is not difficult to see that by the time this possibility occurs, society is no longer “traditional” and culture no longer balanced and symmetrical. References to culture, therefore, become chimerical, alienated, and, in the final analysis, a stratagem and ruse. Culture becomes a weapon of control– in the case of women, one of patriarchal control.
To derive rights from culture is to confer privilege but to deny rights. This is because “culture” is by definition proscriptive when used to differentiate right from wrong. Rights that are derived from culture are privileges afforded to individuals under rules or laws to which the individual is not signatory. Women have always had this kind of privilege in history. In Muslim societies, for example, the first wife of the patriarch has always enjoyed considerable power in the household and great privileges vis-a-vis the sons’ wives and other younger women. These privileges, however, are derivative and, although traditional in appearance, they tend to be rationally devised to maintain the integrity of the patriarchal household. Even in cases where the privilege approaches “right” for example when, as in the case of a Muslim woman’s right to own property, it is perscribed in the Qur’an, the right is mediated by the patriarchy through an elaborate system of judicial rulings.
The debate on cultural relativity takes many forms and varies in intensity. But, regardless of its form and content, in developing societies it is fundamentally about the relationship between men and women, and the moral and political foundations of women’s demand for the right to participate in decisions that affect the condition and shape of life on our planet as we move into the twenty-first century. In Cairo or in Beijing, as discussed above, the debate was not between North and South, or East and West. It was not between cultures, as traditionally defined. Protagonists and antagonists drew their lines of attack and defense everywhere across the world– in Europe, in the Americas, in Asia, in the Middle East, and in Africa. The debate was, and remains, between those who see societies and cultures as verities that are hard, fixed, and immutable, and those who see reality as fluid and changing and wish to move it in the direction of greater equality, freedom, and justice.