Month: November 2020

by Dr. Atieno Mboya

Definitions

“Gender equality means ensuring equal opportunities for women and men and equitably valuing the contributions of both.

Empowerment of women through law refers to women using the legal system to secure their goals for equality, agency, and equal opportunities and income with men.

Introduction

The United Nations’ Sustainable Development Goal 5 on achieving gender equality and empowering women and girls reiterates the unfinished, universal struggle for women’s rights around the world. The Goal calls for:

(i) Increased women’s leadership and
participation in governance

(ii) Strengthened women’s economic
empowerment

(iii) Increased protection of women against gender-
based violence and access to justice for
women (Sustainable Development Goals
Knowledge Platform 2019)

The feminist movement, which advocates for women’s social, political, legal, and economic rights, equal to those of men, continues to be the catalyst for women’s fight for gender equality. The objective of increasing women’s leadership and participation in governance is a liberal feminist approach to gender equality, which aims to integrate women into existing power structures. As of 2020, a long road remains to be traversed in this regard, with, for example, only 20 countries having female Heads of Government (UNWomen 2020b). The second objective, strengthening women’s economic empowerment, when operationalized, increases women’s life choices and agency because of the greater economic independence they have. And the third objective, protecting women from gender-based violence and ensuring they have access to justice, aims to realize and protect women’s fundamental human rights to life, dignity, and freedom from violence. These objectives and the overall global goal of achieving gender equality are embedded in the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the national laws of states that have ratified the Convention. CEDAW is an international agreement that lists the rights of all girls and women concerning achieving equality between girls/women and boys/men (CEDAW 1979).

This entry will survey the relationship between women and the law in the context of the struggle for gender equality. It will examine how women have been defined as legal subjects over time and traditional legal restrictions that have been upheld against women, using examples drawn primarily from the United States, where there is a robust legal trail for dismantling those restrictions and advancing women’s rights. Victories that women in the United States have won have had reverberating impacts in other parts of the world, surveying the American women’s rights experience relevant to the global women’s movement, which is today reflected in the Sustainable Development Goals. The entry will explore constitutional and legislative doctrines that evolved to remove the oppression of women, tracking how the feminist movement has pushed for these victories, which have in turn fueled the movement towards overcoming legal obstacles and setbacks that women have faced.”

Mboya A. (2020) Empowering Women Through the Law. In: Leal Filho W., Azul A.M., Brandli L., Lange Salvia A., Wall T. (eds) Gender Equality. Encyclopedia of the UN Sustainable Development Goals. Springer, Cham.

Read the rest here: https://doi.org/10.1007/978-3-319-70060-1_146-1

by Deborah Dinner

Illustration by Martha A. Fineman

“Take a closer look at a physical copy of Martha Albertson Fineman’s recent book series and you will notice that the cover art is a print of one of Martha’s own etchings. The print shows two faces, one staring intently at the viewer and the other looking to the side. The faces are not isolated; rather, they are connected by intersecting and overlapping spherical lines. Trees and leaves encircle and, perhaps, protect the faces. For me, the emotions evoked by the etchings include curiosity, warmth, forthrightness, creativity, and an awareness of relationship to other people and to the environment. Martha possesses these qualities, as a scholar and colleague. As an artistic medium, furthermore, etchings draw viewers’ attention to negative spaces as well as positive lines. This is the quality of Martha’s scholarship that is, for me, most inspiring and generative. Martha has a knack for rendering visible the negative spaces—the dimensions of law and social life that others are missing.

Over the last decade, Professor Fineman has turned her attention to one such negative space: vulnerability in the human condition. In 2008, she published The Vulnerable Subject: Anchoring Equality in the Human Condition. This essay, since cited by more than 150 law-review articles and countless book chapters, presented Fineman’s critique of the limits of antidiscrimination law and argued that recognition of universal human vulnerability should serve as the ethical foundation for a more responsive state. In the last decade, vulnerability theory has evolved considerably, but I will start my remarks with a brief overview of this landmark essay.

Fineman’s piece starts with a familiar critique: that the formal conception of equality in U.S. antidiscrimination law—same treatment for similarly situated individuals—has proved wholly inadequate either to challenge structures of subordination or to remedy socioeconomic inequality. She draws attention to the way in which the rhetorical prominence of antidiscrimination, as our legal culture’s dominant frame for justice and injustice, reinforces the perceived legitimacy of a restrained state. Putting a twist on our understanding of the public–private divide, she argues that the contemporary state has not withered. Rather, the state refrains from using its formidable coercive authority to guarantee substantive equality.

The essay then proceeds to chart wholly new territory in legal scholarship: universal and constant human vulnerability. Of crucial importance, Fineman departs from the popular conception of vulnerability as signaling the “victimhood, deprivation, dependency, or pathology” of particular groups. Rather, the essay advances the radical notion that vulnerability is a universal and constant aspect of the condition. Vulnerability, she explains, “should be understood as arising from our embodiment,” which carries with it the capacity for “harm, injury, and misfortune… whether accidental, intentional, or otherwise.” Vulnerability also stems from individuals’ differential location in social, economic, and political institutions. For this reason, while vulnerability is universal, Fineman reasons, its manifestations in specific individuals’ experiences are particular and varying.

In my own view, Fineman’s thoughts about the simultaneous universality and particularity of vulnerability offer fruitful terrain for further scholarship. Scholars may explore the points of overlap and departure between Fineman’s theory and critical-race and feminist theories. The latter view vulnerability as institutionally produced and, generally, challenge universalist theories as insufficiently attentive to the construction and deployment of power. It seems that these two approaches to vulnerability may be compatible—a view that should not be surprising given the long and profound role Fineman has played in the development of critical theory within the legal academy. Existential vulnerability, if understood as particular in its manifestation, may support theoretical insights into the institutional production of vulnerability. Fineman and critical theorists of vulnerability similarly highlight the ways in which both state and civic society institutions construct privilege and disadvantage. Indeed, Fineman herself argues that it is not identity traits, themselves, that produce inequality. Rather, “systems of power and privilege . . . interact to produce webs of advantages and disadvantages.”

Fineman’s project, however, is ultimately constructive rather than critical. In keeping with her laudable pragmatism, Fineman’s theory calls for a responsive state that promotes both human and institutional resilience. Vulnerability theory argues that the state has a responsibility to promote resilience by facilitating the just distribution of physical assets such as material resources, human assets such as education and health care, and social assets such as strong, functional families and communities. For the purposes of this Essay, however, I will focus on the concept of human vulnerability rather than its cognate—resilience.

Even at this early stage, the reader might wonder: why does the author, whose primary intellectual identity lies within the field of legal history, find this particular piece of legal theory so compelling? Here is the answer: Fineman’s theory is of considerable interest to legal historians because it is fundamentally concerned with how we should re-theorize law given the inevitability of change over time. I take the occasion of this tribute issue honoring Martha Albertson Fineman’s oeuvre to outline some ideas about the significance of vulnerability theory as a category of analysis in legal history. To begin, vulnerability theory makes historical analysis critical to law by placing historicalchange (and not just originalist inquiry) at the core of legal analysis. Vulnerability theory draws our attention to the fact that human beings are constantly susceptible to change, both positive and negative, in our bodily, social, and environmental circumstances. Vulnerability theory, therefore, reconceives the universal political–legal subject as dynamic rather than static, materially fragile, and socially interdependent. Vulnerability theory is thus well-suited to legal history because it foregrounds temporality as a means to understand social experience as well as institutional arrangements under law. The theory demonstrates that any theory of social justice must account for change over time.

Even as it demonstrates the relevance of temporality for legal theory, vulnerability theory demands that historians pay greater attention to the persistence of enduring and constant human needs across time. Over the last three decades, critical-race and feminist theory has informed historical scholarship by showing how ideas about identity and difference have structured social–legal institutions. Vulnerability theory, I would argue, challenges historians to examine how history is shaped, too, by what Fineman terms inevitable, biological dependency across the life course as well as the derivative dependency of caregivers. These existential characteristics have provoked varied and shifting institutional and legal responses over time. The question for legal historians is how and why law has constructed and reconstructed the institutional arrangements of dependency. Accordingly, recognition of vulnerability can offer new ways to organize historical periodization and theories of causation.

This Essay uses an illustrative example from my own scholarship to demonstrate the capacity for vulnerability theory to enrich legal history. It analyzes the legal construction and obfuscation of vulnerability in the U.S. “welfare regime”: the public as well as private arrangements that order social provisioning. As a short Essay meant to provoke rather than to answer questions, the piece is necessarily cursory in its treatment of historical causation, controversies, and patterns. First, I outline the relationship between gender and vulnerability in the liberal welfare regime, premised on concepts of feminine vulnerability and masculine independence. Second, I discuss the ways in which the neoliberal welfare regime assumes invulnerability: it valorizes sex neutrality, while reinforcing private responsibility for dependency. Third, I use vulnerability theory to help illuminate a historical path not taken: the transformation of the welfare regime according to the model of the universal, interdependent caregiver rather than the universal, autonomous breadwinner. Throughout this brief exposition, I endeavor to explain how Fineman’s theoretical insights inform my own methodology and analysis as a legal historian.”

by Barbara Bennett Woodhouse

Image via Pixabay

“A World Fit for Children” is the title of a report delivered to the U.N. General Assembly’s Special Session on Children in 2002. The report was the fruit of three days of discussions and debates carried out by over 400 youth delegates aged ten to eighteen (also referred to as the ‘U-18s’) representing children from all of the nations of the world. In their report, the children identified many threats to their well-being, from the degradation of the natural environment, to the HIV epidemic, to war and hunger, each of which is also a threat to women and, indeed, to humans everywhere. The U-18s were not engaged in special pleading on behalf of children, but on behalf of all who inhabit the planet. These U-18s played an integral role in the 2002 U.N. Special Session, and their message transcends the politics of division to make a statement about our shared vulnerability and our shared strength. This Article is premised on the notion that building a world in which children flourish is integral to the project of building a world in which women flourish, and vice versa. By meeting the needs of children and their caregivers, we build an environment in which all can flourish.

In my prior writings, inspired by the work of feminists, and especially the Feminism and Legal Theory Project, I developed a child-centered theory called ‘generism.’ Inspired by environmental, physical, and social science, I have refined this theory under the more descriptive title of ‘ecogenerism.’ In this Article I am claiming that feminism and generism or ecogenerism are mutually complementary and compatible approaches to a broad range of concerns that threaten shared values of human flourishing. Feminist theory, and especially the branch called ‘intersectionality,’ challenges inequality and systematic marginalization of others besides women. Likewise, generist theory does not cease to be generist theory when it challenges the oppression of others besides children. Generism also does not cease to be generism when it addresses the devaluation of persons other than children. I will argue that systematic devaluations of women and children are deeply interconnected and need to be addressed together.

My premise is not novel. Political analysts already lump all manner of things that matter to children — decent schools, safe streets, quality and affordable health care and day care– under the somewhat patronizing rubric of “women’s issues.” Human rights documents already demonstrate that the concerns of women and the concerns of children are deeply interconnected.8But, too often, we in the United States seem to magnify out of proportion the rare clashes between women’s rights and children’s rights, rather than focusing on the overwhelmingly positive correlations between rights for women and rights for children. Perhaps our Constitution, with its single-minded focus on individual rights, looms so large in our imaginations that it blocks our view of the basic human rights concepts that unite us. Lawyers trained in the United States tend to frame discussions as clashes of rights– the fetus’s right not to be killed and the woman’s right not to be told when or whether to bear a child, for example. This framework suggests that rights are a zero sum game. More rights for women mean fewer rights for children, and vice versa.

Instead, I will argue that employing an ecogenerist method brings from the margins to the center those basic economic and social rights that are missing from the U.S. Constitution but so critical to understanding human rights and the human condition generally. Human rights principles, by placing rights in an economic and social context, acknowledge and make visible the interdependency of women’s and children’s rights and the interdependency of women’s and children’s interests. As others have observed, both the right to life and the right to reproductive choice are hollow if the material conditions necessary to exercise such rights are lacking.9 Feminism and the child-centered perspective I call ecogenerism are alike in recognizing that rights without resources are meaningless to dependent persons and those who care for them. Both methods avoid the trap of focusing narrowly on the individual and both demand that we recognize our shared interconnectedness and our shared vulnerabilities, as well as our rights to individual autonomy and privacy.”

by Dr. Stu Marvel

It is no radical proposition to argue for the centrality of the legal institution of marriage in allocating rights and legitimating functions in American society. Marriage remains critically important as both a symbolic and an organizational structure. Indeed, much of the debate around whether gays and lesbians should be permitted to marry has issued from a recognition of the vital role of marriage, not only in childrearing but as a barometer for social order and “traditional” values. While the moral disapproval of same-sex marriage is an admittedly diverting topic, this Article is more interested in a functional analysis of the marriage institution. What work does marriage do for the state? Why marriage, and why does it remain so foundational?

The contemporary answer, I believe, has to do with the priority placed by the state on ensuring mechanisms for the care and nurturance of children. Thus, the battle over same-sex marriage is not merely about gays and lesbians but about the social institution of family and the resilience of the marital form. Can it withstand the challenges posed by same-sex marriage movements? Will it crumble if opened to even broader forms, such as polygamous unions? These contestations are matters of urgency not only for the families involved but for the larger institution of marriage itself. The resilience of the marital family is a particularly critical concern within a “weak” welfare state such as the United States, where the private family is expected to do much of the work of childcare and nurturing. The manner in which the state channels rights, benefits, and obligations through our intimate lives thus continues to be of paramount importance.

While the arcs of the same-sex marriage and polygamous marriage movements have been far from parallel, there are nevertheless important continuities and linkages to be found. The role and position of children in both movements, as well as the vulnerability of the state in regard to the care of dependent children, offer useful signposts toward a future of plural parents and caretakers within the family. But what does it mean to reference “the vulnerability of the state”? How can an institution, much less the state, be understood as vulnerable? The next section will introduce the vulnerability paradigm developed by Martha Fineman and explain its utility in analyzing these social concerns.

Continue reading The Evolution of Plural Parentage: Applying Vulnerability Theory to Polygamy and Same-Sex Marriage