Human Rights: A Feminist Perspective

Author(s): Gayle Binion

Source: Human Rights Quarterly , Aug., 1995, Vol. 17, No. 3 (Aug., 1995), pp. 509-526
Published by: The Johns Hopkins University Press

Stable URL: https://www.jstor.org/stable/762391

REFERENCES
Linked references are available on JSTOR for this article:
https://www.jstor.org/stable/762391?seq=1&cid=pdf-
reference#references_tab_contents
You may need to log in to JSTOR to access the linked references.

JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide
range of content in a trusted digital archive. We use information technology and tools to increase productivity and
facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org.

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at
https://about.jstor.org/terms

The Johns Hopkins University Press is collaborating with JSTOR to digitize, preserve and
extend access to Human Rights Quarterly

This content downloaded from

52.172.200.163 on Sun, 19 Feb 2023 08:01:41 UTC
All use subject to https://about.jstor.org/terms
HUMAN RIGHTS QUARTERLY

Human Rights: A Feminist Perspective

Gayle Binion*

ABSTRACT

This paper explores the ways in which human rights might be understood if
women's experience were the foundation for the theorizing and enforc
ment. The argument is not that there is but one feminist perspective
indeed the title suggests that there might be many. Rather, it is argued tha
if one works from the life experiences most common to women, t
principles of human rights that would emerge would not necessarily reflect
the universe of such rights as they are commonly understood by libe
nation states. While the prototypic "human rights" case involves t
individual political activist imprisoned for the expression of his views o
political organizing, forms of oppression that do not fit the Bill of Righ
model of liberty are rarely recognized in international understandings
national asylum laws. These forms would include, inter alia, issues relat
to marriage, procreation, labor, property ownership, sexual repression, a
other manifestations of unequal citizenship that are routinely viewed
private, nongovernmental, and reflective of cultural difference.

FEMINISM AND LAW IN CONTEXT

Perhaps the most profound intellectual stimulant to jurisprudence

past generation has been the development of feminist approaches
study of law. Whereas a decade ago, significant obstacles were enco
in the process of accessing this literature,' by the mid-1980s fem

* Prepared for presentation to the triennial meeting of the International Politica

Association, Berlin, 21-25 August 1994.
1. Standard reference sources and indexes in law did not have feminism as a categ
just a few years ago. While women and the law has been a category for at least t
twenty years, this did not capture the breadth of the feminist enterprise that had

Human Rights Quarterly 17 (1995) 509-526 ? 1995 by The Johns Hopkins Universi

This content downloaded from

52.172.200.163 on Sun, 19 Feb 2023 08:01:41 UTC
All use subject to https://about.jstor.org/terms
510 HUMAN RIGHTS QUARTERLY Vol. 17

became as deeply rooted in legal scholarship

several of the humanities and social sciences.
and approaches employed under the femin
dialogue that raises fundamental questions abo
the system(s) serves, the social conditions it bo
the possibilities for its transformation.
Virtually all areas of law have felt feminism's
of most immediate material concern to w
employment discrimination, and reproductive
analyzed from feminist perspectives,2 other
jects, such as torts, criminal law, and constitutio
viewed through feminist eyes.3 Interwoven w
have been perhaps the most challenging critiq
an inherently gendered system and suggest that
resonate with only male experience.4
Feminist developments in law did not, of c
isolation. As is commonly the case in sociopol
law-oriented insights about the role and fun
constructed and constructive variable drew he
literature in the fields of psychology and soc
Gilligan's In A Different Voice," Chodorow's T
ing,6 and Epstein's Deceptive Distinctions7 add

grown in the field. Consequently, the vehicles necessary

communicative dialogue were nonexistent during the
enterprise.
2. See, e.g., MARTHA A. FINEMAN, THE ILLUSION OF EQUALITY: THE RHETORIC AND REALITY OF DIVORCE
REFORM (1991); LENORE J. WEITZMAN, THE DIVORCE REVOLUTION: THE UNEXPECTED SOCIAL AND
ECONOMIC CONSEQUENCES FOR WOMEN AND CHILDREN IN AMERICA (1985); Katharine T. Bartlett &
Carol B. Stack, Joint Custody, Feminism and the Dependency Dilemma, 2 BERKELEY
WOMEN'S L.J. 9 (1986); Herma H. Kay, Equality and Difference: The Case of Pregnancy, 1
BERKELEY WOMEN'S L.J. 1 (1985); Christine A. Littleton, Reconstructing Sexual Equality, 75
CAL. L. REV. 1279 (1987).
3. See, e.g., Leslie Bender, A Lawyer's Primer on Feminist Theory and Tort, 38 J. OF LEGAL
EDUC. 3 (1988); Kenneth Karst, Woman's Constitution, 1984 DUKE L. J. 447; Robin West,
Jurisprudence and Gender, 55 U. CHI. L. REV. 1 (1988); Elizabeth Schneider, The
Dialectic of Rights and Politics: Perspectives from the Women's Movement, 61 N.Y.U.L.
REV. 589 (1986); Gayle Binion, Toward a Feminist Regrounding of Constitutional Law, 72
Soc. SCI. Q. 207 (1991); Suzanna Sherry, Civic Virtue and the Feminine Voice in
Constitutional Adjudication, 72 VA. L. REV. 543 (1986). The literature to which I refer
herein is all English language, including largely American, British, Australian, and
Canadian theorists.
4. See, e.g., CATHARINE A. MACKINNON, FEMINISM UNMODIFIED: DISCOURSES ON LIFE AND LAW (1987);
CAROL SMART, FEMINISM AND THE POWER OF LAW (1989); Katharine T. Bartlett, Feminist Legal
Methods, 103 HARV. L. REV. 829 (1990).
5. CAROL GILLIGAN, IN A DIFFERENT VOICE: PSYCHOLOGICAL THEORY AND WOMEN'S DEVELOPMENT (1982).
6. NANCY CHODOROW, THE REPRODUCTION OF MOTHERING: PSYCHOANALYSIS AND THE SOCIOLOGY OF GENDER
(1978).
7. CYNTHIA F. EPSTEIN, DECEPTIVE DISTINCTIONS: SEX, GENDER, AND THE SOCIAL ORDER (1988).

This content downloaded from

52.172.200.163 on Sun, 19 Feb 2023 08:01:41 UTC
All use subject to https://about.jstor.org/terms
1995 Human Rights: A Feminist Perspective 511

women within (US) society, but attempted to explain the u

this "different" life experience. The application of insights suc
myriad others of the 1970s and 1980s provided important
feminist theorizing in law.8

FEMINIST STUDIES AND JURISPRUDENCE: THE FOCUS OF CONCERN

Feminist jurisprudence has certain defining characteristics that are shared

with feminist studies generally. These include a focus on women's experi-
ence, especially the disempowerment that has been ubiquitous. In a world
in which women perform two-thirds of the hourly labor and receive 10
percent of the income and hold barely 1 percent of the property,9
disempowerment is clearly economic. In a world in which women are more
than 51 percent of the population, fewer than 5 percent of the heads of
government, and fewer than 10 percent of the (lower house) parliamentar-
ians,10 disempowerment is clearly political. In a world in which it is
acceptable, inter alia, for women to be raped by their husbands; for female
detainees to be raped by the police; for women to be educated at half the
level and literacy of men; for women to have no access to birth control or
abortion; and for women to have no unilateral freedom of movement
domestically or internationally, disempowerment is clearly social. To these
indicia of societal inequity might also be added the practices of dowry
murder, the aborting of female fetuses, the murder of female babies, and
nationality laws that are male determinative." The breadth and depth of the
critical problems addressed in feminist studies suggest that the undertaking

8. Two caveats are important here. First is that the views of the sources of feminist
theorizing in law were and are very diverse. For example, while Gilligan clearly
addressed perceived differences in how men and women conceptualize moral issues
and dilemmas and Chodorow sought to explain identity and empathy as reflective of
gender-based rearing patterns, Epstein cautioned against making too much of "differ-
ence" and suggested that what men and women have in common far outdistances
perceived gender-distinctive characteristics. The second, and related, caveat is that the
theorizing in law, while influenced by developments in the social sciences and
humanities, is not entirely derivative. A legal scholarship of feminism took root in the
1970s and has flourished as a cross-fertilized but also independent enterprise.
9. UNITED NATIONS, THE WORLD'S WOMEN 1970-1990: TRENDS AND STATISTICS at 30 (1991). It might
also be noted that in the United States women are fewer than 1 percent of the CEOs of
the 500 largest corporations.
10. UNITED NATIONS OFFICE AT VIENNA CENTRE FOR SOCIAL DEVELOPMENT AND HUMANITARIAN AFFAIRS,
WOMEN IN POLITICS AND DECISION-MAKING IN THE LATE TWENTIETH CENTURY at 10, 58 (1992).
11. For analyses of these issues, see, e.g., Melissa Spatz, A "Lesser" Crime: A Comparative
Study of Legal Defenses for Men Who Kill Their Wives, 24 COLUM. J.L. & SOC. PROBS. 597
(1991); Lisa C. Stratton, Note: The Right to Have Rights, 77 MINN. L. REV. 195 (1992);
Grdinne De BOirca, Fundamental Human Rights and the Reach of EC Law, 13 OXFORD J.
LEGAL STUD. 283 (1993).

This content downloaded from

52.172.200.163 on Sun, 19 Feb 2023 08:01:41 UTC
All use subject to https://about.jstor.org/terms
512 HUMAN RIGHTS QUARTERLY Vol. 17

need demonstrate no further that there are ac

to be asked about gendered economic, pol
Feminist jurisprudence, which includes a bro
questions about where the law fits within wo
role in perpetuating these gendered systems
vehicle for change.

FEMINIST STUDIES: METHODOLOGY AND ORIENTATION

Feminist studies have more in common than the subject they stu
are a variety of other relatively common features. Feminist analysis
be contextual, experiential, and inductive. Whereas much social t
hierarchical, abstract, and deductive, the feminist starting poin
actual human experience and the implications of that experi
significant sense, it is more anthropological than philosophical,12
marked by what Bartlett calls "practical reasoning."" Because
experience is the source and the focus of the theorizing and inco
the diversity of women's lives is highly valued, grand theory i
eschewed, and absolutes are distinctly suspect.14 This renders f
theorizing necessarily self-consciously limited, tentative, and pro
A final unifying feature of feminist theory is that it is inextricably in
with contemporaneous social, political, and economic movement
law this is an especially prominent feature of the scholarship t
paralleled, influenced, and been influenced by, the movements
equality of women since the late 1960s. The interactive realms o
and political activist, often practiced but rarely openly respecte
quarters of academia, form, in the world of feminism, a natur
While to some such interaction raises questions about the "object
the scholarship, to many feminists the larger question is whether th

12. I do not mean to suggest that feminist studies is therefore difficult or im

philosophy. Quite the contrary, in these respects, feminists have written some of
provocative philosophical work in recent years, work which challenges the
tions of the field. See, e.g., NANCY C.M. HARTSOCK, MONEY, SEX AND POWER: TOWARD
HISTORICAL MATERIALISM (1983); BEYOND SELF-INTEREST (Mansbridge ed., 1990); SUSA
JUSTICE, GENDER AND THE FAMILY (1989); CAROLE PATEMAN, THE SEXUAL CONTRAC
extrapolating from actual experience).
13. Bartlett, supra note 4, at 887.
14. In a very stimulating analysis, Smart, supra note 4, at 68, 71, has suggested
features of feminist jurisprudence have rendered the law-which is hierar
which values grand theorizing and deductive analysis-an inhospitable enviro
women.

15. See, Bartlett, supra note 4, at 857.

This content downloaded from

52.172.200.163 on Sun, 19 Feb 2023 08:01:41 UTC
All use subject to https://about.jstor.org/terms
1995 Human Rights: A Feminist Perspective 513

to engage the application of scholarship suggests an absence

bility.16

HUMAN RIGHTS IN FEMINIST RELIEF

Feminist jurisprudence provides very substantial challenges to human rights

law as it is institutionally understood. These include both fundamenta
questions about the processes by which human rights are defined, adjud
cated, and enforced, as well as questions about the substance of what
thereby "protected." And, while the focus of analysis is on wome
experience, a feminist approach might have immediate implications for
rights of all disempowered peoples and raise questions about soc
organization generally. If it were necessary to offer one word to capture th
essence of feminist jurisprudence, in general and in its significance f
human rights analysis, it is inclusion. The enterprise critiques the experienc
of women as persons excluded from legal protection and from proportio
ate political and economic power.
Feminist critics of legal institutions question whether these institutions
are capable of protecting women. Legal institutions are viewed as hierarc
cal, adversarial, exclusionary, and unlikely to respect claims made
women.17 In apparently stark contrast, exponents of the protection of hum
rights argue that human rights must be seen as a legal phenomenon.
principles of justice are not legalized, then they are subject to the unilateral
control of nation states, and their abuse can be subjected to nothing m
than the ad hoc expression of moral outrage by those who disagree with the
challenged behavior. While the domestic or international codification
policy, like conventional or common law, provides no guarantee that
law will be respected, human rights advocates maintain nevertheless th
"law" is a critically important arrow in their quiver. Even in situations
which litigation is either impossible or impractical, this view rests on
assumption that most states do not even want to appear to be in violation of

16. It must be noted of course that this debate about the appropriateness of involvemen
the practical consequences of one's academic work is limited almost exclusively to on
some of the social sciences. In academic medicine, as in business and law schools, a
well as, for example, in departments of archeology, music, dance, theater, or engineer
ing, to be involved in such activity is mainstream and expected.
17. See, e.g., CATHARINE A. MACKINNON, SEXUAL HARASSMENT OF WORKING WOMEN: A CASE OF SE
DISCRIMINATION (1979); Ann C. Scales, The Emergence of Feminist Jurisprudence: An Essay
95 YALE L.J. 1373 (1986); Smart, supra note 4. I might have added overwhelmingly
"male," but this is not true in all societies. While in the United States and Great Britai
women are fewer than 10 percent of the judiciary, in continental countries a
Scandinavia this is not the case.

This content downloaded from

52.172.200.163 on Sun, 19 Feb 2023 08:01:41 UTC
All use subject to https://about.jstor.org/terms
514 HUMAN RIGHTS QUARTERLY Vol. 17

international law.18 Despite the widely held view th

simply international politics, being able to portr
backing of "law" removes the dialogue from the
more than self-interested negotiation. A feminist an
well argue from experience that human rights
failure in protecting peoples from oppression.
Despite this immediately apparent conflict over
tant in the protection of human rights, in a sense, t
the classic human rights perspective may not be
ment over the question of reliance on law. Th
concern expressed by feminist critics of legal instit
Carole Smart, is that litigation as a process does not
rights advocates also know only too well that li
limited tool in this endeavor.20 Thus, while wom
suggest that reliance on courts, judges, and lawye
folly, feminists and traditional human rights ac
appreciate, and perhaps agree, that developing law
not an enterprise to be jettisoned. The points of d
more fundamental reflect on the political power
process of defining these "legal" rights, the limitati
and the life experience that should underlie the
human rights law to which the world ought to be co
rights advocates spar with the governmental pow
how they are treating political dissidents, feminist c
diameter of the circle of inclusion in the realm
entirely too narrow.

WORKING FROM "WOMEN'S EXPERIENCE"

In an attempt to visualize how human rights would be understoo

women's experience were the foundation for such policymaking, Char

18. Leslie J. Calman, Are Women's Rights "Human Rights" in WOMEN IN INT'L DEV.,
(Michigan State Univ. Working Paper No. 146, 1987).
19. I do not read Smart's critique, supra note 4, as necessarily condemnatory of public po
per se.
20. While the European Court of Justice and the European Court of Human Rights, as we
other similar regional international bodies, have developed some significant hum
rights law, albeit far more readily for men than for women (see, Marie Provine
Human Rights of Women: A Feminist Analysis (on file with the author); Rebecca J. C
International Human Rights Law Concerning Women: Case Notes and Comments
VAND. J. TRANSNAT'L L. 779 (1990)), the minimal volume of output, as well as the cl

This content downloaded from

52.172.200.163 on Sun, 19 Feb 2023 08:01:41 UTC
All use subject to https://about.jstor.org/terms
1995 Human Rights: A Feminist Perspective 515

Bunch has asked what is basic to women's view of their hu

this endeavor of defining human rights from the experien
first step to integrating women into the process of oper
protecting human rights, the outcomes are not entirely wome
suggested above, a feminist perspective on human rights h
for all human rights, not just those of women. For examp
women's experience with respect to reproductive policy a
ment of rape laws, such a perspective highly values bodily int
application as well to issues such as capital punishmen
conscription, governmental practices with which women
not been significantly associated. Similarly, if a feminist
especially sensitive to hierarchy and inequity of power, the im
all people at the bottom of the social order is significant. Hav
broadest implications for human rights theory and practic
challenge to the assumption that only government ought t
for human rights violations. If, in women's experience, d
(traditionally understood principles of) human rights come mo
from the nongovernmental sphere, it would then be asked
rights are not similarly most often threatened by actors and
are not necessarily clothed with officialdom.
In sum, feminist approaches lead us to ask particular qu
challenge certain institutional arrangements, suggesting
inductive methodologies in seeking answers. The conse
analysis and the alternative visions of society that it enge
quite profound and ultimately as relevant to men as to wo

CHALLENGING THE PUBLIC-PRIVATE DISTINCTION

Perhaps no question is more immediately and regularly addressed

feminist critique of human rights theory than is the assumption
separate worlds of the "public" and "private," a distinction that r
corresponds to the governmental and the nongovernmental in cont
rary parlance. This dichotomy is largely a product of classical we

limitations of states as defendants or, in the case of the International Court of J

states as litigants, has rendered the "litigation" process of minimal significan
protecting human rights.
21. Charlotte Bunch, Organizing for Women's Human Rights Globally, in OURS B
WOMEN'S RIGHTS AS HUMAN RIGHTS 141 (Joanna Kerr ed., 1993) [hereinafter OURS BY

This content downloaded from

52.172.200.163 on Sun, 19 Feb 2023 08:01:41 UTC
All use subject to https://about.jstor.org/terms
516 HUMAN RIGHTS QUARTERLY Vol. 17

liberal thought22 in which, inter alia, John

legitimacy of the divine right of kings with
familial structure. To dispute the analogy employ
authority over society and the father's autho
argued that the two spheres were separate and d
authority was deemed to be divine, political p
from the governed. The consequences for wo
perspective are fundamental and profound. A
has relegated women to the home, away from th
make policy23 and away from a substantial ro
institutions that determine the nature and qualit
The Lockean separate spheres approach has al
to the control of patriarchal familial author
husbands-with the understanding that famili
therefore, beyond the scope of governmental
Physical and sexual abuse of wives and children
world, has, consequently, faced little formal cha
understanding of the social order.25
Overcoming the international institutionaliz
dichotomy is one of feminism's greatest hurdles
approach to human rights and in incorporatin
experiences of women into its models.26 Fem
support for their movement to scale the presum
family and to implicate parties other than the g
violations. Whether it is the malnutrition and m

22. Nancy Kim has suggested that it is western liberal th

as "political" and the "private" as "cultural." Nancy Ki
Human Rights: Straddling the Fence between West
Absolutism, 25 COLUM. HUM. RTS. L. REV. 49, 66-74 (19
23. Carole Pateman's brilliant analysis of The Sexual Con
that in liberal theory women are not parties to the soci
the contract much the way slaves are.
24. One of the many great fallacies associated with the
structure is the assumption that there are only two sph
approach draws attention away from other loci of grea
in society, away from what some social scientists cal
would include, inter alia, corporations, religious organiz
cultural and public interest organizations.
25. Human rights concerns aside, despite overwhelmi
consequences of child abuse, Sweden's outlawing o
derisive commentary. Similarly, women who accuse the
to be "suffering" from "false memory syndrome."
26. See Adelaide H. Villmoare, Women, Differences and
tive Essay and a Proposal, 25 LAW & Soc. REV. 385 (19
everyday life experience in the operationalization of a f

This content downloaded from

52.172.200.163 on Sun, 19 Feb 2023 08:01:41 UTC
All use subject to https://about.jstor.org/terms
1995 Human Rights: A Feminist Perspective 517

spousal rape, beatings and murder, or the institution of p

women are essentially imprisoned in their homes), the world's
inclined to see these allegedly nongovernmentally per
inequities as human rights issues.27 While women collect
that their experience of oppressive power that denies them m
human dignity, and physical security occurs more readily in t
in the town jail, there appears to be little support outside
movement for broadening human rights principles to inclu
of abuse and a wider range of abusers. There are numerous
this inability to see human rights in broader relief and for th
model the notion of the international citizen upon the live
First, perhaps ironically, is the interest of the state i
preeminence in the international world. While it is of questio
to be viewed as the only source of violations of fundamen
justice and freedom, states might, nevertheless, value the
their citizenry that this stance implies. By being seen as u
sive, they simultaneously retain a hegemony over their pe
institutions allegedly beyond their control from external pur
Second, the state might promote the dichotomization
private to maintain a chasm between the two out of a con
can be learned about the political world from an understan
life, and these insights might be destabilizing to the sys
Pateman have both suggested that attention to the pa
structures in family life might heighten citizens' under
hierarchical power that controls the political system.28 Iro
Locke, not inclined to challenge paternal authority, saw
cojoining of state and family as reinforcing political autoc
who do challenge familial patriarchy, see the association
having precisely the opposite impact.
It might be argued that the state is not the only powerful a
to limit the reach of human rights to only the "public" doma
to do so might come as well from the "private" realm. Religio
and corporations, for example, have much to gain in the
their autonomy from the illusion of invisibility that the two
provides. If human rights concerns are focused solely on
of a theory of the insulation of the family as "private," the f

27. See Hilary Charlesworth & Christine Chinkin, The Gender ofJus Cogen
63, 72-73 (1993) (suggesting that, despite the right to life and freedom
are incorporated within jus cogens in international human rights law,
the spheres in which these rights of women are most often jeopardize
28. PATEMAN, supra note 12; OKIN, supra note 12, at 110-33.

This content downloaded from

52.172.200.163 on Sun, 19 Feb 2023 08:01:41 UTC
All use subject to https://about.jstor.org/terms
 518 HUMAN RIGHTS QUARTERLY Vol. 17

dual-institution society is reinforced. Exceptiona

the familial patriarchy thereby escape scrutin
men) who pay unconscionably low wages f
conditions would be unlikely to want inter
brought to bear against them. Religious order
disqualification policies would similarly not w
the two-spheres theory of society these instit
practices are effectively shielded from intern
Were women's experience the focus of human
nongovernmental sphere would be heighte
organization and practices that are exploitative
just by familial patriarchs, but also by other
brought into bold relief.29
The denial of the existence of a "private
violations is not limited to those with an appa
status quo. Human rights theorists, such as Alsto
dilution of human rights principles if the rea
traditional.30 Activist friends of human rights, s
slow to view women as victims of denials of hum
their view that government must be seen as the
in order for their organization to act.3' Promine
have argued for only a very circumscribed re
abuses.32 The standard Anglo-American Bill of R
the uniquely powerful potential evil-doer is a
human rights nongovernmental (NGO) commu
ments themselves.

29. As a related matter, some states and, no doubt, many nonstate interests oppose the
International Covenant on Economic, Social and Cultural Rights because of its material
quality, guaranteeing, inter alia, an adequate standard of living, free compulsory primary
education, and paid childbearing leave for women. The last provision is one of the
reasons why the United States, the only industrial democracy not to provide paid
maternity leave, has not yet ratified the treaty, which has been in effect since 1976.
30. Philip Alston, Conjuring up New Human Rights: A Proposal for Quality Control, 78 AM.
J. INT'L L. 607 (1984).
31. See AMNESTY INTERNATIONAL PUBLICATIONS, WOMEN IN THE FRONT LINE (1991), which clearly states
throughout the introductory section that Amnesty International's mandate is to free
prisoners of conscience and that its only focus is on state action. It was only in 1989 that
Human Rights Watch, an organization with a self-consciously broader mandate than
Amnesty International, first set up a Women's Rights Project. See Dorothy Q. Thomas,
Holding Governments Accountable by Public Pressure, in OURS B RIGHT, supra note 21,
at 83.
32. For example, Dorothy Q. Thomas & Michele E. Beasley, Domestic Violence as a Human
Rights Issue, 15 HUM. RTS. Q. 36, 43 (1993), while arguing for the inclusion of such
violence within the purview of human rights concerns, would do so only where it could
be demonstrated that the state's nonenforcement of its laws against violence was gender-
based and, therefore, an official act of sex discrimination.

This content downloaded from

52.172.200.163 on Sun, 19 Feb 2023 08:01:41 UTC
All use subject to https://about.jstor.org/terms
1995 Human Rights: A Feminist Perspective 519

PUBLIC-PRIVATE DICHOTOMY: A FALSE DICHOTOMY?

In contrast to the dual-spheres perspective and international respec

familial autonomy, reiterated in the International Covenant on Econ
Social and Cultural Rights, ecofeminist Riane Eisler has observed tha
principle of noninterference with 'family autonomy' is in actuality nowh
fully accepted. On the contrary, a universally established principle i
family relations are subject to both legal regulation and outside scrutiny.
Therein lies the major conceptional difficulty with the two-sphere
proach to society and to human rights policy. To the extent that the fam
or for that matter any societal institution, is separate or autonomous
government, it is at the sufferance of the state. Governments worl
have not endowed "family" with any significant degree of autonomy
framework for family is everywhere within a collective policy arena.
about who may marry, at what age, and with what rights and dutie
made by the state (or its functional equivalent). Rules governing div
child custody, and inheritance are likewise a matter of "public policy.
thus unpersuasive to suggest that human rights abuses within family life
sui generis. Battery, rape, imprisonment, intimidation from voting
murder are not different from the crimes that they appear to be just be
they are perpetrated by a family member.34
To the extent that these acts are ignored by the state, there is a failu
official responsibility, not an inability to police the environment.
feminist analysis, the state's choice to overlook such criminal acts
abusive of human rights as a refusal to interfere with slave trade. Docum
ing the state's responsibility for the perpetuation of such systems of abu
an easy undertaking, but a feminist analysis would go a significant
further. While the state's failure to act makes it legally liable, the abuser
themselves also directly guilty of a denial of human rights.35 The assum
that the private person, like the familial milieu, is outside the purv
human rights law is regularly challenged within feminist jurispruden

33. Riane Eisler, Human Rights: Toward an Integrated Theory for Action, 9 HUM. RTs. Q
293 (1987).
34. It should be noted, of course, that while imprisonment and intimidation of a voter are
recognized human rights problems because of their close connection to the liberal
model of the free citizen, rape and battery, common dehumanizing experiences of
women, are not so defined by the international community, unless directly linked to
political acts of the state, such as war. See Anna H. Phelan, The Latest Political Weapon
in Haiti: Military Rapes of Women and Girls, L.A. TIMES, 5 June 1994, at M4; see also
Rape was Weapon of Serbs, U.N. Says, N.Y. TIMES, 20 Oct. 1993, at Al.
35. This approach to human rights, holding the private perpetrator directly responsible, is
one of the most difficult reforms to initiate within a system bent on the nation state as
defendant. There are, however, models of human rights that emerge from the Treaty of
Rome and European court decisions, which do include "private," albeit nonfamilial,
defendants.

This content downloaded from

52.172.200.163 on Sun, 19 Feb 2023 08:01:41 UTC
All use subject to https://about.jstor.org/terms
 520 HUMAN RIGHTS QUARTERLY Vol. 17

To argue that family is distinct and "priva

influence in socializing its members, especial
and Okin have noted that the patterns of b
enced within the family seriously affect wheth
members function in the "public" world.
whether the family encourages democratic
whether its members are encouraged and su
become involved in the political processe
commitment of international human rights pol
attention to the institution of the family is no
also empirically sound. The United Nations se
as the laboratory of democracy; its declarati
Family sports the slogan, "Building the small
society."39
In sum, the notion that the family is uniquely separable from the larger
society and from the human rights issues therein generated is indeed
questionable. But again, to reiterate a thematic concern, it is not family
alone that needs to be added to government as a potential locus of abuse; it
is the proposition that women's experience draws immediate attention to
the instruments of repression and disempowerment that exist due to
imbalances in power. This mode of analysis, while targeting family struc-
tures as perhaps the most ubiquitous source of "unofficial" abuse, is also not
necessarily sui generis. Similar analyses are then invited with respect to the
power of employers, religious and educational institutions, corporate
policymakers, etc. and the various ways in which they are capable of
locking people into forms of deprivation and degradation equal in severity
and often kind to those for which we regularly condemn governments.

36. OKIN, supra note 12.

37. Bunch has argued that family life is a key factor in determining whether women will be
able to be involved in the public life of the community. The lack of spousal support for
this activity, the fear of violence or abandonment, all function to keep women from
involvement in the "public" world of policy making, the world in which, inter alia,
decisions are made which define and enforce principles of rights. Bunch, supra note 21,
at 142.
38. What is especially interesting about international law is that, despite a world in which
open democratic politics exist in only a minority of societies, the conventions are all
premised on the principle that this is not only the norm, but is essential. See, e.g., the
Universal Declaration of Human Rights, signed 10 Dec. 1948, G.A. Res. 217A (III), U.N.
Doc. A/810, at 71 (1948); the International Covenant on Political and Civil Rights,
adopted 16 Dec. 1966, G.A. Res. 2200 (XXI), 21 U.N. GAOR Supp. (No. 16), at 52, U.N.
Doc. A/6316 (1966); and the International Covenant on Economic, Social and Cultural
Rights, adopted 16 Dec. 1966, G.A. Res. 2200 (XXI), 21 U.N. GAOR Supp. (No. 16), at
49, U.N. Doc. A/6316 (1966).
39. Bunch, supra note 21, at 142.

This content downloaded from

52.172.200.163 on Sun, 19 Feb 2023 08:01:41 UTC
All use subject to https://about.jstor.org/terms
1995 Human Rights: A Feminist Perspective 521

THE QUESTION OF "CULTURE"

Closely associated with the public-private distinction, in wh

tional order largely immunizes from its purview nongover
of human rights abuses, is the question of culture. In a nutshe
debate in this arena is whether human rights values are univer
cultural relativism legitimately is factored into internation
policies. While some have made significant strides in dec
dichotomy and suggesting the ways in which the gap migh
part,4" feminist scholars have asked why culture appears
only in regard to gender roles and to the governmental and n
tal denials of fundamental rights to women. As Helie-Luc
while such practices as maiming and corporal punishment
international voices of outrage, genital mutilation of women i
"culture."41 Freeman notes that, under principles of "cus
societies women are deprived of custody of their children l
divorce or killed by their husbands who face no sanctions for
also must wonder why racially based slavery and apartheid
condemned despite their entrenchment in culture, while w
under purdah-the denial of the right to vote, travel, wo
property, or control their own fertility-are seen as voluntary
their "cultures." Ironically, highlighted within the Conve
Elimination of All Forms of Discrimination Against Wome
obligation assumed by governments to "take on" cultural tradi
and otherwise, and to rid their societies of sexism.43 It is sign
provision has been the subject of few "reservations" by sig
Perhaps this simply indicates that expressions of princip

40. See in this regard, Annie Bunting, Theorizing Women's Cultural Div
International Human Rights Strategies, 20 J.L. & Soc'Y 6 (1993); Kim
Alison D. Renteln, The Concept of Human Rights, 83 ANTHROPOS 34
Cultural Approach to Validating International Human Rights: The C
Tied to Proportionality, in HUMAN RIGHTS: THEORY AND MEASUREMENT 7 (Da
ed., 1988).
41. Marie-Aimed Helie-Lucas, Women Living Under Muslim Laws, in OUR
note 21, at 61. One might add to Helie-Lucas' examples of internatio
human rights within the context of alleged cultural difference the
Singapore of an American teenager convicted of vandalism.
42. Marsha A. Freeman, Women, Development and Justice: Using the Int
tion on Women's Rights, in OURS BY RIGHT, supra note 21, at 100.
43. Convention on the Elimination of All Forms of Discrimination again
18 Dec. 1979, art. 5, G.A. Res. 34/180, U.N. GAOR, 34th Sess., Su
Doc. A/34/46 (1979).
44. Freeman, supra note 42.

This content downloaded from

52.172.200.163 on Sun, 19 Feb 2023 08:01:41 UTC
All use subject to https://about.jstor.org/terms
522 HUMAN RIGHTS QUARTERLY Vol. 17

presumptively binding conventions, might be lar

experience of the disempowered.45
The manifesto of the UN-sponsored convention
met in June 1993 in Vienna, while expressin
religious diversity, strongly reaffirmed the prin
human rights as well as the impossibility of divo
economic and social rights. There is little doubt t
presence at this meeting, a presence which c
attention, was largely responsible for this co
universality and unity of rights. This represente
cultural hegemony, as is often maintained by
cratic, nonegalitarian societies,46 but rather, a re
women worldwide who very distinctly understan
the various forms of political, economic, and
Despite women's concerns about respecting
ing the diversity of women within societies,
now being documented in Barbara Nelson
ambitious study of women in forty-three countr
themes and concerns. These include eradicatin
equalizing strategies with respect to educatio
pursuit of reproductive rights including acces
infertility services, and maternal and child h
political and legal change to the advantage of
conditions of cultural diversity among societi
perspective, justify a failure to rectify the cond
worldwide. Women's experience demonstrates
arguing from "culture"; to argue from cultur
social order, values, and power can be underst
that is thus made covertly, and should be made o
tions of "culture," whether unique to one soci
are unacceptable to the human family. That is
made with respect to slavery since the ninete

45. This phenomenon reminds me of a discussion with

commented that her government "signs everything; do
on feminism's concern with actual experience and the
may be counterposed to expressions of principle.
46. Indeed, western states, including the United States, oft
rights that are "political" from those which are "econom
States has recently ratified the International Covenant
1992), it has yet to act on the International Covenant
Rights, which opened for signature nearly thirty years
47. WOMEN AND POLITICS WORLDWIDE (Barbara J. Nelson

This content downloaded from

52.172.200.163 on Sun, 19 Feb 2023 08:01:41 UTC
All use subject to https://about.jstor.org/terms
1995 Human Rights: A Feminist Perspective 523

similarly applied to the conditions of disempowerment under

live. Women's organizations, products of indigenous exper
not forcefully silenced, argue for more equitable social,
political systems, for an end to patriarchy. Cultural relativist
or betray their own credo when they dismiss gender issues
do so is to argue that only men create and sustain cultur
suggested the development of a principle of prisoner of cu
sistent with CEDAW, would acknowledge that "custom an
should be respected as a living expression of community norm
not be allowed to be used as a rationale for denial of human r
women's experience is incorporated within the purview o
analysis, it is folly to dismiss it as simply a product of cultur

SOME MODEST PROPOSALS

A feminist approach to human rights thus asks questions not ge

addressed within human rights dialogues, questions generated
experience of women. That there have been some steps for

48. Freeman, supra note 42, at 101.

49. It is also important to emphasize that, despite variations among societies as to
and extent of the disempowerment, the disempowerment of women is everywh
not a useful activity to create hierarchies of "blame" in which one can simply
worst cases, while overlooking the usual. In this respect H6lie-Lucas argues
common practice of attacking Islam as women's major problem may be m
H6lie-Lucas, supra note 41, at 52-56. While she documents the very serious se
women's rights in many Islamic countries during the 1980s, she also notes th
societies vary greatly as to their practices and traditions in which, for example
differences exist between the neighboring countries of Algeria and Tunisia (
female genital mutilation, while practiced by Muslims, Christians, and others in A
unknown in Muslim cultures elsewhere. Id. at 53. Implicit in her argumen
politics, not religion per se, explains the ways in which religion can be used as a
of women's oppression. See e.g., Id. at 53. She further suggests that some of the
now common in Islamic countries, such as the mandatory adoption of a h
surname, were products of colonialization. Id. at 54. Cook echoes the the
demonstrating that the European human rights courts have upheld western
policies of requiring women to change their surnames to those of their husbands
as policies restricting women's rights to custody of their children, to abortio
national identity. Cook, supra note 20. See also Stratton, supra note 11; Elizabeth
Abortion, Speech and the European Community, 1992 J. Soc. WELFARE & FA
(1992). The practical problems associated with "targeting" a particular so
oppression are also formidable. An attempt within the United Nations less t
decade ago to investigate human rights abuses of women within Islamic coun
precipitously cut off by the General Assembly. Thus, experience suggests not o
Islam is hardly unique in its controls over women-controls often not very differ
those in Christian, Hindu, Jewish, or Buddhist societies-but that targeting a par
cluster of societies may be impossible as a matter of strategy, at least within
international fora.

This content downloaded from

52.172.200.163 on Sun, 19 Feb 2023 08:01:41 UTC
All use subject to https://about.jstor.org/terms
 524 HUMAN RIGHTS QUARTERLY Vol. 17

furthering the agenda of women's rights throug

clear in recent years. CEDAW has been passed an
NGOs, such as Amnesty International and Huma
finally set up committees to study and publiciz
Women's organizations are active all over the wo
international forces, despite the ostracism and threat
might entail. In 1992 women's groups submitted
115 countries demanding that women's rights be
Human Rights Convention in Vienna.so At a mor
1989, the US government has included within its
data on violence against women."5 But the st
improved because actual policy has not been alter
alia, nationality policies, the franchise, econom
illiteracy, or violence. And debates rage over ho
change.
While the formalistic front of written documents and political proce-
dures does not seem especially utile, there are good reasons for making
certain that these flanks are not abandoned. If for no other reason than that
of symbolic importance, it is critical that CEDAW enforcement processes be
raised to those attached by the United Nations to other human rights
protocols.52 It is similarly important that principles governing asylum be
revised by nations to recognize women as a social group subject to
persecution and that nongovernmental actors and issues of violence be
"legalized.""5 Despite serious feminist concerns about formalism, about
statism, and about the function of law in general, because women do not set
the agenda and are not in the position to design their arenas, the legal front
and the diplomatic front cannot be eschewed. This does not mean,
however, that their engagement cannot be reconceptualized and a new
approach to human rights incorporated.

A RESPONSIBILITY MODEL

One of the most interesting aspects of the debates within feminist juris
dence is the question of whether rights analysis, domestically or interna

50. Bunch, supra note 21, at 147. In the longer view, it may turn out that this event, th
successful worldwide organizing effort, will constitute a watershed in the interna
women's rights movement, and that the multiple strategies used successfully an
liaisons formed will have unexpected consequences.
51. Thomas, supra note 31, at 84.
52. See, e.g., Kim, supra note 22, at 82.
53. See, e.g., Charlotte Bunch, Women's Rights as Human Rights: Toward a Re-V
Human Rights, 12 HUM. RTS. Q. 486 (1990); Rebecca J. Cook, Women's Internat

This content downloaded from

52.172.200.163 on Sun, 19 Feb 2023 08:01:41 UTC
All use subject to https://about.jstor.org/terms
1995 Human Rights: A Feminist Perspective 525

ally, is useful. Gilligan first highlighted this question effect

findings that (US) women were more prone to see themselves
of community to which they had responsibilities, rather than
tinction to a society against which they had rights; the latte
characteristic male model.54 Feminist legal theorists have wonder
the dichotomous and adversarial character of "rights" is
women's experience.55 If this approach of "responsibility" we
the human rights arena, it might be significant in allowing a
more open range of action with respect to human rights
elements of such an approach would be a concern with impact
intent by powerful social actors, governmental and otherwi
similarly reconceptualize human rights as human needs and w
the acceptability of the status quo by the extent to which hum
being met. The goal would be to effect change and not to "b
ideas are not entirely new; if one scans international "hu
documents of the past half century there is much language th
"rights" in the kind of positivistic and material language th
transcends the politically procedural, but also transcends the n
in addressing human needs. Most critically, one would c
traditional methodology of human rights which catalogue
committed by "guilty governments." In its place one would
different question: to wit, what are the conditions of huma
dignity, health, and safety that are fundamental to an ex
meaningful theory of "rights?" The purpose thereof would be to
avenues necessary to further this state of affairs. Identifying th
causes of the deprivations would thus become second-order
purpose of designing strategies for change, not for ensurin
government that is the perpetrator.
If human rights were subjected to these suggested concept
decisions on policy would be made that place a priority on m
needs of the disempowered.57 Working from any of the ex
generally beautifully crafted, human rights documents,58 one

Human Rights Law: The Way Forward, 15 HUM. RTS. Q. 230 (1993); M.
Governmental Interferences With Human Rights, 56 BRIT. Y.B. INT'L L. 25
54. GILLIGAN, supra note 5, at 54.
55. See, e.g., Sherry, supra note 3, at 582, 604; Schneider, supra note 3, a
56. One is regularly reminded that the UN Charter itself speaks to a c
"peoples," not states.
57. The vast majority of human rights principles are in fact already oriented t
(politically, socially, and economically) disempowered. Capitalist princip
rights of property holders, while extremely well protected by the existing wo
distinctly second-order within twentieth-century human rights discourse.
58. For example, CEDAW, the International Covenant on Civil and Political
International Covenant on Economic, Social and Cultural Rights.

This content downloaded from

52.172.200.163 on Sun, 19 Feb 2023 08:01:41 UTC
All use subject to https://about.jstor.org/terms
526 HUMAN RIGHTS QUARTERLY Vol. 17

each situation about each allegation of denial o

the model of a legitimate human needs conce
affairs be rectified or improved? Absent would b
mental involvement," of "guilt," and of "trad
therefore alter debates on strategies by asking v
making outcome, actual experience, the majo
neously recognize that not all "abuses" of human
for example, the failure of poor nations to provi
only on their poverty. At the same time, under
for that health care to be provided would not
a malevolent offender. While it might be only th
in terms of positive incentives to change and a w
the human condition than in terms of punishme
it also might be that women's needs for socia
under a model of this type. This is a voice that h
the realm of "charity" and "relief work," not po
politics. Research suggests that this might be sub

This content downloaded from

52.172.200.163 on Sun, 19 Feb 2023 08:01:41 UTC
All use subject to https://about.jstor.org/terms