Markkula Center of Applied Ethics

When Cultural Values Clash with Universal Rights:
Is Multiculturalism Bad for Women?

By Susan Moller Okin

A catchy title that asks a question can be a problem if it leads people to think that the author's inclination is to give a simple answer. Indeed, it seems a hopeless quest to try to answer the question, "Is multiculturalism bad for women?" in an easy way.

So if I'm not going to give a simple answer, what am I trying to do? Above all, I want to point out that there is a real tension between the aim of feminists to promote the equality of women and the aim of multiculturalists to promote the preservation of disadvantaged or endangered cultural groups. I want to look at those instances when the project of trying to advance women's international human rights runs into problems with cultural claims.

Over the past 20 years, there has been increasing recognition that the earlier, post-World War II conceptions of human rights need to be quite distinctly and radically rethought in order to fully include women's human rights. One of the major accomplishments of the international women's human rights movement was the International Women's Conference in Beijing in 1995. At this conference, after much dispute, the final program of action stated the following: "While the significance of national and religious particularities in various historical, cultural, and religious systems must be kept in mind, it is the duty of states regardless of their political, economic, and cultural systems to protect and promote all human rights and fundamental freedoms." In its coverage the next day, The New York Times said that this affirmation-that women's rights should supercede national traditions-was arguably the most far-reaching stance on human rights ever taken at a United Nations gathering.

On the other side, some feminists consider it highly objectionable—a kind of intellectual colonialism—for anyone outside of a particular cultural or religious community even to raise the issue of whether certain rights of women are violated within that community's tradition. They think of it as intrusive because it's impossible to understand another culture from the outside.

In my view, this is not a morally justified approach. At least, I would suggest, it is incumbent on anyone claiming groups' or peoples' rights to ensure that the women of the cultural or religious group concerned are consulted. The group should not just be represented by the elders or the men.

Let's go back to the Universal Declaration of Human Rights of 1948. This document states that women and men have equal rights. It's remarkable that the declaration should have said this at the time it was written because none of the states that signed and ratified it had equal rights for women. There were lots of things that were legally different and unequal for men and women in this country and England. French women couldn't even vote; in Switzerland, they could vote at some levels but not others.

If you read the declaration carefully, it is pretty clear that it's one of those documents that were originally written about men to which somebody added women. A lot of the rights it refers to clearly have to do with male-headed households. For example, there's a clause about the family that says the privacy of the family is to be protected and persons have a right to preserve the honor and integrity of the family. These are words that come up often in the context of women's sexuality, such as a daughter's sexual behavior or even rape, which can be seen as affronts to the family's honor, for which the girl can be punished, sometimes even killed. They have a lot to do with patriarchal cultures, where men are seen as the guardians of family honor.

Also, all the rights asserted in the declaration are held to be rights against states. For example, you have a right to physical integrity and not to be tortured by your government. But many times when women are physically violated or attacked it is not by the state; it is by men in their own environments-often husbands or boyfriends or fathers. So, the problem for women is not so much the state but other persons, yet the document is focused on the state as a violator of rights.

Thirty-one years after the Universal Declaration of Human Rights was issued, it was becoming obvious that many countries, if not all, had policies and laws that clearly discriminated against women. So a convention was put together, which is commonly known as the CEDAW (Convention on the Elimination of All Forms of Discrimination Against Women).

Whatever you think of the practical effectiveness of such documents, you can learn quite a lot by looking at countries' reactions to them. A lot of countries, including our own, have not ratified the CEDAW. Even among the signatories, a lot of countries have made reservations, more than to any other international human rights document. They say, "We can't abide by this particular part of the document." Most of them base their objections on cultural and/or religious grounds. Of those that have signed or ratified the convention, a number-including India, Bangladesh, Iraq, Jordan, Morocco, and Israel-have expressed certain reservations. In particular, they object to Article 16 of the convention, which explicitly says that men and women are to have the same rights and responsibilities during marriage and at its dissolution.

Most of the countries that express this reservation state more or less explicitly that it's because their state marriage and divorce laws are in accord with religious law. In many cases, although not all, it's the Islamic Shariah. Basically, the Shariah says that husbands and wives have complementary rather than the same responsibilities, roles, and rights. As a result, they say they can't abide by this clause.

In this context, it's worth noting that cultural or religious exemptions from international documents are by no means the order of the day. When one looks the cultural reasons for exemptions from international treaties -as Joe Paul, a lawyer at Hastings Law School, recently did-one finds that such justifications stand notably more chance of being accepted when they're about the unequal treatment of women than when they deal with other issues. For example, there are no such reservations by countries signing the earlier 1965 Convention on the Elimination of Racial Discrimination. Also, culturally based claims for exemptions or exceptions from treaties or conventions about other issues such as whaling or cutting down the rainforests have considerably less chance of gaining international acceptance than when the exemption is based on unequal practices regarding women. In short, culture does not generally trump in cases like racial discrimination or whaling, but it does trump and is accepted as trumping when issues of women's equality are concerned.

As some scholars have noted, women's equality and the claims to rights of cultures and religions have been on a collision course ever since the 1948 Declaration because that document states both so boldly. The tension between the two was further increased when the rights of people of culturally distinct groups were promulgated in the U.N. Covenant on Social, Economic, and Cultural Rights in 1966.

I hope it goes without saying that those like myself who are concerned with this issue don't think that cultural and religious freedoms are unimportant; far from it. In many cases, they are of crucial importance to the members of cultural or religious groups who would suffer under oppressive conditions, be discriminated against, or even treated with violence if they did not have this explicit protection of their separate and distinct religious or cultural practices. That some people, whether they make up a whole single nation or a minority within a nation state, need certain rights and protections in order to preserve their language, beliefs, and customs is by now a well established argument.

At the same time, there's a real conflict between these protections and the well being and quality of life for hundreds of millions of the world's women. Martha Nussbam has written eloquently about what she calls the liberal dilemma of respect for religious freedom and commitment to other human rights including women's rights to equal treatment and respect.

To see how this conflict operates in practice, let's take the case of group rights in India, the world's second most populous state and its largest liberal democracy, and also the case of Israel. In both of these states, marriage and divorce are controlled by various religious groups or communities. For various reasons, some of them having to do with the colonial past and some of them having to do with religions per se, religious groups have come to have a particular stake in regulating the relations between spouses and within families.

As a result, in India, millions of Muslim women can be divorced unilaterally by their husbands at any time. But they themselves have no right to leave their marriage except for considerable cause-such as their husbands' desertion of or failure to support them-and even then they need the permission of a religious court judge. These Muslim women are not entitled to any continuing support from their husbands if their marriage is dissolved. No matter how long the marriage lasted and regardless of the extent to which the division of labor was practiced within the marriage, a divorced woman can be left economically destitute after a few months and a certain amount of money that the husband has to pay her temporarily.

There was an infamous case in the late 20th century in India, which involved a woman who had raised five children and who was unilaterally divorced and left without any income after a 40-year marriage to a successful lawyer. At 73, she was supposed, according to the laws of divorce, to rely on her birth family or on charity for the rest of her life.

The Indian Supreme Court, to which this case was appealed, decided in favor of the woman, ordering the husband to pay, but not in accordance with divorce law. He was required to support her because there's a law in India against leaving somebody to become a vagrant.

When the court issued its decision, there was a huge outcry in the Muslim community because they didn't think that the Hindu majority should have anything to do with enforcing their laws of marriage and divorce. They were particularly irate that the Supreme Court had dared to try and interpret Muslim law. There was such an outcry that the government of India in 1986 passed a law that has an odd name: "The Muslim Women's Protection of Rights on Divorce Bill." A more accurate title might be "The Protection of Muslim Husbands' Rights on Divorce Bill." What the law did was overturn the Supreme Court judgment and state that Indian Muslim women would have no recourse to support after divorce. Religious law had triumphed over women's equality.

In the case of Israel, Orthodox Jewish law regulates marriage and divorce between all Jews, religious or secular. The only way for a Jewish Israeli to avoid the inequalities of Orthodox divorce law is to get married outside of Israel. Orthodox divorce law is based on a single passage from Deuteronomy, which reads,

When a man takes a wife and marries her, if then she finds no favor in his eyes because he has found some indecency in her, and he writes her a bill of divorce and puts it in her hand and sends her out of his house; she leaves his house and becomes the wife of another man; then the second man rejects her, writes her a bill of divorce and puts it in her hand and sends her out of his house, or if the latter husband dies, who took her to be his wife, then her former husband, who sent her away, may not take her again to be his wife, after she has been defiled.

Initially, this taking and sending away of wives in Judaism was polygamous, as marriage still is in Islam, of course. About a thousand years ago, a progressive Talmudic scholar, Rabbi Gershon, reinterpreted the text, no longer permitting Jews to have multiple wives. He also said that a Jewish husband could not divorce his wife unilaterally; that is to say, without her consent.

However, one substantial inequality in the Halakhic law remains: Unless the husband agrees to give his wife a bill of divorce, called a get, she is not released from the marriage. She cannot remarry, and any children she has are regarded as bastards, which means they are not allowed to marry within Judaism. In other words, a man can control his wife's life in terms of what she can and cannot do reproductively and in terms of her relationships. The woman in this situation, who is known as an agunah or "chained woman," is often stuck interminably in a marriage that is over. Frequently, she or her family is subjected to extortion in order to receive the get. At the same time, the man can continue with his life much less impeded. For example, he can father legitimate Jewish children, and he can, in some cases, get the permission of a Jewish court to marry again.

A defender of religious group rights in India or Israel might say something like this: "Yes, women are disadvantaged in terms of the laws of marriage and divorce in the various religious groups, but controlling personal or family law is of special importance to these groups because of the huge part it plays in the protection of their culture and religion. It's an important part of their religious freedom. Moreover, the women, too, benefit overall from having their way of life protected."

These claims do have considerable weight; that's why there is a moral dilemma here. Yet, I would argue that each of these claims can be answered. It is the case that control of personal or family law is of central importance to religious and sometimes other cultural minority groups. But such laws also are tremendously important to women. If the availability of divorce, for example, is not equal-especially if women can be married young and sometimes under pressure-the impact of this inequality is bound to reverberate throughout the marriage.

Albert O. Hirschman argues that the terms of exit from any situation affect the voice and the power of the various people within the situation. It's not hard to see how this theory applies to marriage. If a husband is able to exit the marriage more easily than a wife and does not suffer economically from divorce, then surely this must affect the whole marriage, giving far more power to the husband. Even when the terms of divorce are equal, the traditional division of labor between the sexes tends to make divorce less advantageous to women because men usually possess more of the human capital. This effect is surely going to be far greater if the terms of the divorce favor the man, as is the case so often when religious law governs marriage. In such situations, it seems extremely unlikely that the woman would be able to exert anything like equal influence over major or minor decisions made within the family, within the marriage, or even about her own individual day-to-day life and conduct.

There is also an argument that has been made by feminists at least as far back as Mary Wilson-perhaps even John Stuart Mill: If women are not equal within marriage, they can't be equal within any other sphere of life. If their marriage is unequal, how can they be equal in terms of work opportunities, the marketplace, politics, or anything else? All other equal rights laws for women that countries might promulgate can be virtually nullified by the inequality of marriage and divorce law.

As to whether women benefit overall from groups' rights even if they are disadvantaged in certain things like marriage and divorce, I think this presents a false dichotomy. Is there any justice in giving women this choice? How often are men required to sacrifice their individual rights to equal treatment in order to preserve or protect their religious or cultural identity? We might well ask, Why aren't women's, like men's, human rights, especially when they are clearly fundamental rights, always given first priority?

One could argue that as a prerequisite to any defense or protection of a cultural group, that group should be required to change its marriage and divorce laws in order to make women equal within them. Of course, this would be a major change for many religions and cultures. But it seems to me that any group seeking official recognition and rights within a liberal society, or seeking to be part of generally recognized human rights community, should at least have to reform its teaching and practices to bring them in line with basic equalities for men and women.

This article was adapted from a talk by Susan Moller Okin, Marta Sutton Weeks Professor of Ethics in Society and professor of political science at Stanford University. Her presentation on Oct. 29, 2001 was part of the Markkula Ethics Center Lecture Series. Okin is the author of Justice, Gender, and the Family, Women in Western Political Thought and "Is Multiculturalism Bad for Women?"

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