The Yale Law Journal Company, Inc. The Yale Law Journal

The Yale Law Journal Company, Inc.
Piercing the Veil

Author(s): Madhavi Sunder
Source: The Yale Law Journal, Vol. 112, No. 6 (Apr., 2003), pp. 1399-1472
Published by: The Yale Law Journal Company, Inc.
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Piercing the Veil
Madhavi Sundert
CONTENTS
INTRODUCTION ................................................................................... 1401
I. GROUNDWORK ..................................... 1407

A. The New Sovereignty.......... ........................
B. The New Enlightenment ..................................... 1410
II. TRANSITION ....................................... 1415
A. Law 's "Past".......................... ..........................

B. Law 's "Other".......................... .........
C. Constructing and Obstructing.......
D. Cases in Point .........................
1. CEDA W (Global) .................. ................ 1425
t Professor, University of California, Davis, School of Law. J.D. 1997, Stanfo

School; A.B. 1992, Harvard College. msunder@ucdavis.edu. Thanks to Mahnaz Afkham
Amann, Anjali Arondekar, Cassandra Balchin, Carol Bruch, Harish Chander, Joel Dobr
Doremus, Rich Ford, Arturo Gandara, Janet Halley, Anissa H61ie, Maridm6 H61ie Luc
Heller, Bill Hing, Margaret Johns, Kevin Johnson, Larry Johnson, Shulamith Koenig, Har
Leslie Kurtz, Spencer Overton, Sophie Pirie, Lisa Pruitt, Margaret Jane Radin, Jake S
Marty West, and the editors of The Yale Law Journal for helpful suggestions. Special t
Nancy Flowers, who supplied numerous manuals on women's human rights from all o
world. Dean Rex Perschbacher's support has been generous and invaluable. Additiona
Article gained much from presentations at "The Globalization of Modern Legal Th
Production and Reception, 1830-2000" conference at Harvard Law School; a faculty wor
the University of California, Davis, School of Law; the "Globalizing Sex and Gender" ser
workshop with the Middle East/South Asia Research Cluster at the University of Cali
Davis; the "Feminist Interventions: Rethinking South Asia" conference held at the Univ
California, Santa Cruz; the "Gender and Globalization: A Dialogue Across Disci
Institutions and Generations" conference at Stanford University; presentations at the
University College of Law; and the "Redefining Identity Politics--Internationalism, Fem
Multiculturalism" conference at the University of Michigan, Ann Arbor. My research a
Guru Inder Khalsa, Benjamin Muilenburg, Belle Na, Suzianne Painter-Thorne, and Canc
and the staff of the U.C. Davis Law Library provided valuable assistance. Most import
thank Anupam Chander, whose faith has been critical.
This Article is dedicated to my grandmother, Seetha Tilak, and my mother, Mona Sun
who taught me that being an Indian woman has no bounds.
1399
1400 The Yale Law Journal [Vol. 112: 1399
2. Personal Laws (India) ..................................... 1427

3. Freedom of Religion and Tribal Sovereignty
(United States) .................................. 1429
4. Customary Laws (Zimbabwe, Nigeria, and South Afric
III. CONFRONTATION ................. ......... ....................... 1433

A. Human Rights Networks:
Women Living Under Muslim Laws......................................
1. Identity Problems ................................................... 1
2. Identity Strategies ............................. ..............
3. Identity Norms ......................... ................. ..............
4. WLUML 's Challenge to Human Rights Law....................
B. Human Rights Manuals-Claiming Our Rights...................
1. Translation .. 0 .................................. 1446
2. Textualism ..........................................................
3. Constructivism ................................................... ............ 1448
4. Reconstructivism ................................................................. 1449

5. Rumblings of a New Enlightenment ................................. 1451
IV. FUTURES ........ .............................................................. ............... 1457

A. Piercing the Veil of the New Sovereignty......................... 1458
B. Operationalizing the New Enlightenment ............................... 1465
1. Passive Proceduralism ..................................... 1466
2. Robust Proceduralism ..................................... 1468
3. Substantive Prescriptions .............................................
CONCLUSION ........................................ 1471
2003] Piercing the Veil 1401
INTRODUCTION
The failure of the international community to intervene in Afghanistan

prior to September 1 1th was more than a failure of politics. It was also a
failure of law. To put it bluntly, human rights law has a problem with
religion. In a postmodern world in which the nation-state has been
deconstructed and eighteenth- and nineteenth-century notions of
unmediated national sovereignty have been properly put to rest, religion-
and its attendant category, culture-represent the New Sovereignty.'
Human rights abuses that since World War II are no longer acceptable
when committed by states2 are paradoxically tolerated when justified in the
name of religion or culture. September 1 lth crystallized this fact. The
infamous Taliban regime in Afghanistan assumed power in 1996 and
immediately began stripping women of fundamental human rights3 to
1. See HENRY J. STEINER & PHILIP ALSTON, INTERNATIONAL HUMAN RIGHTS IN CONTEXT
445 (2d ed. 2000) ("If notions of state sovereignty represent one powerful concept and a force that
challenges and seeks to limit the reach of the international human rights movement, religion can
then represent another."); David Kennedy, International Law and the Nineteenth Century: History
of an Illusion, 17 QUINNIPIAC L. REV. 99, 101 (1997) (describing the historical movement in
international law "from autonomy to community," and expressing concern that "there remain
those (often in politics, or in the third world, or new to the field) who would return us to a time of
sovereignty"). My use of the word sovereignty refers to its traditional sense as the right to be let
alone-what's new are the parties making these claims. Cf. ABRAM CHAYES & ANTONIA
HANDLER CHAYES, THE NEW SOVEREIGNTY: COMPLIANCE WITH INTERNATIONAL REGULATORY
AGREEMENTS (1995). In the words of Anne-Marie Slaughter (writing in her memorial to Abe
Chayes), Chayes and Chayes offer an evolving sense of the term in which "sovereignty no longer
means the right to be left alone, but rather the right and capacity to participate 'in the regimes that
make up the substance of international life."' Anne-Marie Slaughter, In Memoriam, 114 HARV. L.
REV. 682, 684-85 (2001) (quoting CHAYES & CHAYES, supra, at 27).
2. It is easy to forget that individual rights are of only recent vintage in international law. As
Louis Henkin reminds us:
[F]or hundreds of years international law and the law governing individual life did not
come together. International law, true to its name, was law only between States,
governing only relations between States on the State level. What a State did inside its
borders in relation to its own nationals remained its own affair, an element of its
autonomy, a matter of its "domestic jurisdiction."
LOUis HENKIN, INTERNATIONAL LAW: POLITICS, VALUES AND FUNCTIONS 209 (1989). But as a
general matter, human rights law is just one example of the gradual whittling away of traditional
notions of state sovereignty. See Anupam Chander, Diaspora Bonds, 76 N.Y.U. L. REV. 1005,
1039 (2001) ("While it is true ... that there was never an era in which nation-states had absolute
dominion over their territory, the last century saw a higher degree of legalization of intrusions into
territorial sovereignty, as well as a magnification of the number and breadth of such intrusions.").
3. Implementing the "strictest interpretation of Shari'a law ever seen in the Muslim world,"
the Taliban closed down girls' schools and banned women from working outside the home,
smashed TV sets, forbade a whole array of sports and recreational activities, and ordered all males
to grow long beards. AHMED RASHID, TALIBAN: MILITANT ISLAM, OIL AND FUNDAMENTALISM
IN CENTRAL ASIA 29, 50-51 (2000). A strict dress code was imposed on women, which required
them to wear head-to-toe veils, id. at 50, and people were required to blacken the windows of their
homes so women could not be seen from the street, id. at 70. Women were banned from general
hospitals, id. at 71, and their health suffered dramatically, see Physicians for Human Rights, The
Taliban's War on Women-a Health and Human Rights Crisis in Afghanistan, at
1402 The Yale Law Journal [Vol. 112:1399
education,4 healthcare,5 work,6 and movement.7 But war

what has been described as the world's most ruthless fundamentalist
regime. For all its pomp and circumstance, international human rights had
little to do with it.8
Current scholarship posits an inherent conflict between women's rights
and culture.9 But this Article argues that religion qua religion is less the
problem than is our traditional legal construction of this category. Premised
on a centuries-old, Enlightenment compromise that justified reason in the
public sphere by allowing deference to religious despotism in the private,
human rights law continues to define religion in the twenty-first century as
a sovereign, extralegal jurisdiction in which inequality is not only accepted,
but expected. Law views religion as natural, irrational, incontestable, and
imposed-in contrast to the public sphere, the only viable space for
freedom and reason. Simply put, religion is the "other" of international law.
Today, fundamentalists are taking advantage of this legal tradition.1"
Yet, contrary to law's centuries-old conception, religious communities are
http://www.phrusa.org/research/health_effects/exec.html (last visited Jan. 29, 2003). For the texts

of Taliban decrees, see Final Report on the Situation of Human Rights in Afghanistan, U.N.
ESCOR, 53d Sess., U.N. Doc. E/CN.4/1997/59 (1997).
4. See Convention on the Elimination of All Forms of Discrimination Against Women, Dec.
18, 1979, art. 10, 1249 U.N.T.S. 13, 18 (entered into force Sept. 3, 1981) [hereinafter Women's
Convention]; International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, art.
13, 993 U.N.T.S. 3, 8 (entered into force Mar. 23, 1976) [hereinafter Covenant on Economic,
Social and Cultural Rights]; Universal Declaration of Human Rights, art. 26, G.A. Res. 217
(III)A, U.N. GAOR, 3d Sess., at 71, U.N. Doc. A/810 (1948) [hereinafter Universal Declaration
of Human Rights]. See generally Convention Against Discrimination in Education, May 22, 1962,
429 U.N.T.S. 93.
5. See Women's Convention, supra note 4, arts. 12, 14, at 19-20; Covenant on Economic,
Social and Cultural Rights, supra note 4, art. 12, at 8; Universal Declaration of Human Rights,
supra note 4, art. 25(1).
6. See Women's Convention, supra note 4, art. 11, at 18-19; Covenant on Economic, Social
and Cultural Rights, supra note 4, arts. 7, 8, at 6-7; Universal Declaration of Human Rights, supra
note 4, art. 23.
7. See International Covenant on Civil and Political Rights, adopted Dec. 19, 1966, art. 20(2),
S. EXEC. Doc. E, 95-2, at 23 (1978), 999 U.N.T.S. 171, 178 (entered into force Mar. 23, 1976);
Universal Declaration of Human Rights, supra note 4, art. 13.
8. While the Bush Administration did cite the Taliban's mistreatment of women in its
denunciation of the regime, American intervention was motivated principally by the desire to
reduce the threat of terrorism from al Qaeda by destroying the group's sanctuary. Given the U.S.
government's prior indifference, the invocation of the plight of women seems more cynical than
sincere.
9. See, e.g., Susan Moller Okin, Is Multiculturalism Bad for Women?, in Is

MULTICULTURALISM BAD FOR WOMEN? 7 (Joshua Cohen et al. eds., 1999) (arguing that
multiculturalism is not in the best interests of women and children).
10. See Christina M. Cerna & Jennifer C. Wallace, Women and Culture, in 1 WOMEN AND
INTERNATIONAL HUMAN RIGHTS LAW 623, 646 (Kelly D. Askin & Dorean M. Koenig eds.,
1999) ("States have used this distinction [between public and private] to the disadvantage of
women by asserting that certain harmful practices are cultural traditions, and thus outside of the
realm of human rights law."); Ann Elizabeth Mayer, Cultural Particularism as a Bar to Women 's
Rights: Reflections on the Middle Eastern Experience, WLUML DOSSIER 16, Nov. 1996, at 21,
26 ("Middle Eastern governments [can exploit] Western stereotypes of Islam.").
internally contested, heterogeneous, an

through internal debate and interaction w
been so true as in the twenty-first centur
increasingly demand change within their
bring their faith in line with democratic n
New Enlightenment: Today, individuals se
not just in the public sphere, but also in
culture, and family.13 Current law, h
modernization. Failing to recognize cultur
contested and subject to change, legal
religion," the "right to culture," and the
defer to the claims of patriarchal, religio
over the claims of modernizers. Paradoxic
revisit its old Enlightenment views is obst
Enlightenment. In short, human rights law,
But on the ground, women's human righ
of religious sovereignty. Betraying a gro
rights law and human rights practice, th
women's human rights activists work
countries. It demonstrates that, despite la
claims of internal dissent, women are no
challenge religious and cultural author
community on more egalitarian and demo
the veil" of corporate sovereignty in case
11. See, e.g., MICHAEL M.J. FISCHER & MEHDI A

DIALOGUES IN POSTMODERNITY AND TRADITION (1
contest among Muslims).
12. See, e.g., GARRY WILLS, WHY I AM A CATHO
does one remain a Catholic while criticizing some of
describes three reactions to his earlier book, Papal S
group asked him how he could reconcile his faith wi
asked why I did not leave." Id. at 4. The third grou
criticize dishonesty in church leaders but wrong to
wrote Why I Am a Catholic for the first group "ag
groups." Id. at 6.
13. See, e.g., FREEDOM OF RELIGION AND BELIE
Juliet Sheen eds., 1997) (discussing the recurring
religious communities around the world, writing that
larger debate about democracy within religious com
also discussion infra Section II.D, Part 1II.
14. Cf Cerna & Wallace, supra note 10, at 646 (a
traditional liberal philosophy" make it difficult to st
David Kennedy, The International Human Rights M
HUM. RTS. J. 101 (2002) ("The legal regime of 'hum
produce and excuse violations than to prevent and rem
15. This Article uses the metaphor of "piercing the
and does not address the doctrine as it relates to corpo
law generally, see STEPHEN M. BAINBRIDGE, COR
activists are asserting a right to confront oppressive

otherwise legally shielded in the name of religion.
Scholars have failed to recognize the full significance
By insisting, in the words of President George W. Bush,
us, you're against us,"'6 scholars celebrate campaigns for
Muslim communities for their similarities to Wester
movements, but elide what is different in these claim
campaigns present powerful critiques of current law, wh
right to religious freedom (on leaders' terms) or to e
public sphere), but no right to both. Envisioning a third
rights activists in Muslim communities are pursuing equ
within the context of religion, not just without it.
We ignore these activists at our peril. In an era of rising
fundamentalism in which women's-and men's-lives are increasingly
governed by private, not public, laws,'" securing human rights requires
deconstructing religion and culture. As the anthropologist Lila Abu-Lughod
writes, "We have become politicized about race and class, but not
culture."19 The same can be said-perhaps more forcefully-about
religion,20 which law's Enlightenment origins have encouraged us to fear
and to worship. Unmasking the politics and mutability of religion that
traditional legal narratives have concealed, we must identify that part of
religion that is a human or legal construction and thus requires justification
and accountability.21 As Kahled Abou El Fadl asks, "In Islamic thought,
God is the authoritative source of law, but what is the balance between
God's authoritativeness and the potential for human authoritarianism?"22
(2002); ROBERT C. CLARK, CORPORATE LAW 37, 71-85 (1986); and Robert B. Thompson,
Piercing the Corporate Veil: An Empirical Study, 76 CORNELL L. REV. 1036 (1991).
16. Arundhati Roy, The Algebra of Infinite Justice, GUARDIAN (London), Sept. 29, 2001,
Saturday Review, at 1 (arguing that Bush's ultimatum is "not a choice that people want to, need
to, or should have to make").
17. See discussion infra Section IV.A.
18. Here I refer to formal and informal laws, including custom and tradition.
19. See Lila Abu-Lughod, Do Muslim Women Really Need Saving? Anthropological
Reflections on Cultural Relativism and Its Others, 104 AM. ANTHROPOLOGIST 783, 789 (2002).
20. See, e.g., Diana L. Eck, The Multireligious Public Square, in ONE NATION UNDER GOD?
RELIGION AND AMERICAN CULTURE 3 (Marjorie Garber & Rebecca L. Walkowitz eds., 1999); id.
at 5 (remarking on "academic blindspots when it comes to religion"). Eck writes that "[t]aking
religion seriously as a category of analysis" means abandoning the "lfighly reified thing-ish notion
of religion as if 'it' were a bounded set of ideas, institutions, and practices." Id. Far from it, Eck
describes "religious traditions such as Christianity, Buddhism, and Islam" as "dynamic, more like
rivers than structures, constantly negotiating the terms and directions of change." Id.
21. I do not attempt to offer a study in Islamic law in this Article, but rather, focus solely on
legal constructions of religion. For introductions to Islam and Islamic legal systems, see KAHLED
ABOU EL FADL, SPEAKING IN GOD'S NAME: ISLAMIC LAW, AUTHORITY AND WOMEN (2001);
KAREN ARMSTRONG, ISLAM: A SHORT HISTORY (2000); DAVID PEARL, A TEXTBOOK ON
MUSLIM LAW (1979); and LAWRENCE ROSEN, THE JUSTICE OF ISLAM: COMPARATIVE
PERSPECTIVES ON ISLAMIC LAW AND SOCIETY (2000).
22. KAHLED ABOU EL FADL, REBELLION AND VIOLENCE IN ISLAMIC LAW 1 (2001).
This is nothing less than a question of

summer, a mentally disturbed young man
blasphemy, and a tribal council ordered
revenge for a crime allegedly committed
traditional Islamic Shari'a law.23 In Nigeri
awaits her fate after an appeals court i
court's ruling that Lawal be stoned to d
child outside of marriage.24 Nigeria's Sup
the case. But as it currently stands, there
Nigerian national law or international hum
the pronouncements of a religious court.25
In such cases, law's conception of religio
as law continues to hold a fundamentalist
will transfer more power to fundamen
expense of human rights. This Article i
process.26 I lay the groundwork for my a
New Sovereignty and the New Enlight
Paradoxically, just as claims to absolute
weaker in the modern world, calls for law
23. See Beena Sarwar, Brutality Cloaked as Traditio

Pakistani journalist Beena Sarwar wrote in the New Y
reflects an increased willingness on the part of the sta
the name of deferring to customary, religious, or trad
Aside from noting the dubious "religious" or "traditi
"equally troubling.., .that the state, in its insecurity, m
public affairs as private, thereby shifting accountabi
others." Id.
24. The sentence has been commuted until after L
one-year-old baby. See Simon Robinson, Casting Ston
Why Is This Mother Facing Death?, TIME, Sept. 2, 20
Stoned To Death, Rules Nigerian Court, INDEPENDEN
by stoning in the Muslim world, see generally
(expressing "the sense of the Congress that the Uni
execution by stoning," and discussing State Departme
in Nigeria, Iran, Saudi Arabia, Somalia, Sudan, and Y
25. Although Nigerian government officials-incl
made statements to the international press that they w
they have made conflicting statements within Nigeria
long established acceptance in the Nigerian constitut
Akosile, Anti Miss World Protests, THIS DAY, Nov.
printable/200211260367.html (reporting President O
always been part of our law" and that "Shari'a is not
Vows To Block Islamic Court's Executions by Stonin
11/10/02 DJINS 02:49:00 (Westlaw); Press Release,
Lawal-the Nigerian Government's Double Speech, at h
AFR440222002 (last visited Jan. 28, 2003).
26. The issue is of utmost importance today in coun
and South Africa, where authorities are debating refor
The question is whether women's and other moderniz
tradition will be heard, or whether lawmakers wil
discussion infra Section II.D.
authority against claims for change and modernity ar

pronounced. Taking advantage of the legal tradition
religion, contemporary fundamentalists are using
authoritarian and patriarchal claims against the challe
Enlightenment. As this Part shows, whether and how we
the New Sovereignty will have profound consequences for
New Enlightenment emerging on the ground.
In Part II, I revisit the traditional intellectual history of
in order to better understand how law's construction of
"other" obstructs new constructions of religion as compat
argue that our entrenched narrative of international law
away from the premodern world of religion toward a
secular rights makes no accommodation for the presen
modern claims for both religion and rights. The result is
case in both international and national law, law i
fundamentalists over modernizers within religio
communities.
Part III turns to the work of the transnational information-sharing and
solidarity network, Women Living Under Muslim Laws, and the
unexamined archives of women's human rights education manuals, to
demonstrate how, on the ground, women activists in the Muslim world are
defying the transition narrative and confronting fundamentalist and legal
constructions of religion here and now. Rather than accepting the binary
framework of religion (on traditional leaders' terms) or rights (without
normative community), activists are developing strategies and new human
rights theory that enable women to claim freedom and equality within the
context of normative community. Based on close readings of nontraditional
sources of international law-illuminated by interviews with leading
activists from around the globe-I begin to identify in the work of these
activists the rumblings of the New Enlightenment, and a conceptually
coherent framework for operationalizing modernity within the context of
culture and community. In the final Part, I suggest how law, in harnessing
these bottom-up strategies and theories, may pierce the veil of the New
Sovereignty and operationalize the New Enlightenment.
A note before proceeding. Some may object to my titling an article
about women in the Muslim world "Piercing the Veil."27 Nevertheless, I use
27. Particularly after September Ilth, such a title could be characterized as everything from
trite to offensive. Indeed, by now the veil trope may seem exhausted. See, e.g., Jen'nan Ghazal
Read & John P. Bartowski, To Veil or Not To Veil, 14 GENDER & SOC'Y 395 (2000); Nicole
Gaouette et al., Voices friom Behind the Veil, CHRISTIAN SCI. MONITOR, Dec. 19, 2001, at 1;
Marilyn Gardner, Lifting the Veil on Women 's Subjugation, CHRISTIAN SCI. MONITOR, Nov. 28,
2001, at 15; Donna Gehrke-White, Behind the Veil, a Strength of Faith, MIAMI HERALD, Nov. 24,
2001, at IE; L.S. Klepp, Under the Veil, ENT. WKLY., Oct. 26, 2001, at 112: Stanley Kurtz, Veil
of Fears: Why the Veil, NAT'L REV., Jan. 28, 2002, at 36; Richard Lacayo, About Face, TIME,
this title as a legal term of art. Simply

the ultimate argument of this Article:
corporation, is a construction of law
doctrine reminds us that law should
otherwise the rule, when grave injusti
and this is my concern-"piercing the v
the world as a natural, discrete category
in part constructed by legal narrativ
today's increasingly fragmented world
religion itself-that determines the bou
the amount of autonomy and equality
sphere. Thus far, law has used its powe
over women and individuals, forcefully
modernity. "Piercing the Veil," t
prescription. Law must both recognize
sovereignty.
I. GROUNDWORK
A. The New Sovereignty
Today we are witnessing the rise of religion and culture as the New
Sovereignty at the very moment that we are hearing rumblings on the
ground of a New Enlightenment. While religious sovereignty is not new,
the conflict between religion and culture and the global recognition that
"women's rights are human rights" is growing.28 Unlike other rights,29
Dec. 3, 2001, at 34 (using the title "Lifting the Veil" on the magazine's cover); Pete Norman &
Eileen Finan, Veil of Tears, PEOPLE, Nov. 12, 2001, at 106; Atefeh Oliai, From Behind the Veil,
FEMINIST VOICES, Nov. 2, 1997, at 7; Sean Salai, Veiled Messages, WASH. TIMES, Aug. 2, 2002,
at A2; CNN Presents: Beneath the Veil (CNN television broadcast, Aug. 26, 2001).
28. Hillary Rodham Clinton, Remarks for the United Nations Fourth World Conference on
Women (Sept. 8, 1995), at gopher://gopher.undp.org:70/00/unconfs/women/conf/gov/
950905175653 (proclaiming the mantra of the conference: "If there is one message that echoes
forth from this conference, it is that human rights are women's rights. ... And women's rights are
human rights."). Women at the United Nations Fourth World Conference on Women held in
Beijing in 1995 popularized this phrase, but women's rights were first recognized as officially
human rights during the World Conference on Human Rights held in Vienna in 1993. See Vienna
Declaration and Programme ofAction, pt. 1, ? 11, U.N. Doc. A/CONF.157/23 (1993).
29. See Courtney W. Howland, The Challenge of Religious Fundamentalism to the Liberty
and Equality Rights of Women: An Analysis Under the United Nations Charter, 35 COLUM. J.
TRANSNAT'L L. 271 (1997) (comparing the refusal to accept religious or cultural justifications for
racial apartheid to the easy acceptance of such claims in the case of women's rights); Ann
Elizabeth Mayer, A "Benign" Apartheid: How Gender Apartheid Has Been Rationalized, 5
UCLA J. INT'L L. & AFF. 237 (2001) (juxtaposing the treatment of racial and gender apartheid in
international human rights law).
women's human rights are being consistently underm

religious freedom30 and "cultural exceptionalism."3'
To be sure, the New Sovereignty emerges out of the o
which theorized freedom in the public sphere in exchang
the private.32 But the New Sovereignty is fueled
developments, as well. Specifically, the New Sovereignty
response to the New Enlightenment. As this Article wil
numerous examples and case studies, today more and mo
challenging traditional religious and cultural authorit
more reason, choice, liberty, and equality within their re
communities. I call this the New Enlightenment. These i
the binary approach of the Enlightenment, which fo
choose between religious liberty (on leaders' terms) in t
and equality (without normative community) in the pub
they articulate a vision of human flourishing that requir
the context of religious and cultural community. This v
only a right to equal treatment in one's cultural or religio
also a right to engage in those communities on one's own
In earlier work, I have described the emergence o
normative claims as the rise of "cultural dissent."33 L
describe empowered selves rejecting community in favor of
individualism.34 Less remarked upon have been new social movements for a
right to constitute individual identity within communities, but with a right
to choice within those confines. As I have argued, cultural dissenters, or
30. See Mayer, supra note 10, at 21-32 (describing the growing popularity of arguments to
curtail women's rights in the name of "Islam"); Yasmin Abdullah, Note, The Holy See at United
Nations Conferences: State or Church?, 96 COLUM. L. REV. 1835 (1996) (describing Vatican
campaigns against women's rights at international conferences in both Cairo and Beijing).
31. Thomas M. Franck, Are Human Rights Universal?, FOREIGN AFF., Jan.-Feb. 2001, at 191
(noting more cultural challenges to the universality of human rights); see also LOUIS HENKIN ET
AL., HUMAN RIGHTS 391 (1999) (writing that cultural relativism "presents a particularly acute
challenge in respect of women's human rights"); Berta Esperanza Hernmindez-Truyol, Human
Rights Through a Gendered Lens: Emergence, Evolution, Revolution, in 1 WOMEN AND
INTERNATIONAL HUMAN RIGHTS LAW 3, 37 (Kelly D. Askin & Dorean M. Koenig eds., 1999)
("[W]omen's rights are especially fragile to a claim of 'culture."'); Arati Rao, The Politics of
Gender and Culture in International Human Rights Discourse, in WOMEN'S RIGHTS, HUMAN
RIGHTS: INTERNATIONAL FEMINIST PERSPECTIVES 167, 169 (Julie Peters & Andrea Wolper eds.,
1995) ("No social group has suffered greater violation of its human rights in the name of culture
than women."). The debate about whether human rights are compatible with "Asian values" has
been particularly heated. See generally THE EAST ASIAN CHALLENGE FOR HUMAN RIGHTS
(Joanne R. Bauer & Daniel A. Bell eds., 1999). For a trenchant reply to this claim, see Amartya
Sen, Human Rights and Asian Values, NEW REPUBLIC, July 14 & 21, 1997, at 33 (documenting
substantial theorizing about tolerance and freedom within Asian traditions).
32. See discussion infra Part II.
33. Madhavi Sunder, Cultural Dissent, 54 STAN. L. REV. 495, 498-500, 516-23 (2001).
34. See THOMAS M. FRANCK, THE EMPOWERED SELF: LAW AND SOCIETY IN THE AGE OF
INDIVIDUALISM 74-75 (1999) (identifying a new right of individuals to define their identities
outside of traditional identities).
"individuals within a community [who

traditional terms of cultural mem
traditional liberal understandings of lib
"thin" theory of the self.36 Their claim
takes too lightly the ease of exit from o
of culture; I read in the rise of cultu
requires not only a liberty right to nor
community free of the fear of discri
meaningful right to equality requires eq
but also within the contexts of the c
people.
But thus far, law has not recognized these new social movements.
Worse still, law has become complicit in the backlash efforts of
traditionalists to stymie these movements.38 Premised upon old
Enlightenment notions that theorize freedom in the public sphere but not
the private, current law elides the claims of modernizers for freedom within
a cultural and religious context, and, paradoxically, sides with
fundamentalist or traditionalist leaders instead. The upshot is that law,
rather than facilitating human rights and modernity, is buttressing the power
of traditionalists against change. This is the phenomenon I call the New
Sovereignty-the increasing use of law to protect and preserve cultural
stasis and hierarchy against the challenges to cultural and religious
authority emerging on the ground.
My argument on cultural dissent forms the first of a trilogy of works on
the theme of law's role in thwarting modernity and cultural change.39 The
instant Article forms the middle work in the trilogy. This Article
instantiates cultural dissent on a global scale through an examination of
women's human rights movements. Going further, it introduces the dual
concepts of the New Sovereignty and the New Enlightenment in order to
highlight the increasing role played by law in obstructing cultural dissent
and social change. Seeing these as parallel movements highlights that the
absence of law from religion is not natural. To the contrary, in a modern
world in which religious authority increasingly is buttressed by law, and not
internal norms, a legal veil, and not religion itself, will increasingly insulate
35. Sunder, supra note 33, at 498.

36. Id. at 551.
37. See id.
38. See id. at 500-03.
39. My first article in this series focused on freedom of association as guaranteed by the First
Amendment. See id. at 523, 523-48 (arguing, based on a close reading of Boy Scouts ofAmerica v.
Dale, 530 U.S. 640 (2000), that freedom-of-association law responds to increasing dissent and
expressive conflict within an association with "an all-out rescue mission" to protect the
association against "dilution" and change).
religious community from modernity and chan

importantly, this Article advances my earlier work by i
for implementing the New Enlightenment. It is neocri
critique, it proposes a blueprint for cultural reconstru
blueprint in the groundwork of women's human right
communities. In their praxis I identify an alternative
of liberal Enlightenment and the despair of cultural re
work in the trilogy, IP3, examines how yet ano
intellectual property-is being deployed to stymie c
suggests that the convergence of intellectual property,
the Internet Protocol creates a similarly volatile mi
empowerment and dominant backlash through law.42
B. The New Enlightenment
Women activists working in Muslim communities on

the war against fundamentalism are laying the groundw
of human rights that would pierce the veil of reli
Women's human rights campaigns in Muslim communi
challenge traditional human rights law, which views id
and provides no individual right to contest cultural or r
within. Under current law, an individual may choose e
discriminatory culture-on the leaders' terms-or to e
no right to stay within their communities and contest or r
is there any right to religion or culture on one's ow
plurality and choice within culture. In short, law requ
between religion and rights. Traditionally, feminist
framework, arguing that when weighing religious freed
women's rights should trump.44 Choosing rights ov
40. See Sunder, supra note 33, at 509 (similarly noting, in the c
association law, that "increasingly, it will be law, not culture, that
borders and determines how much information, autonomy, and equ
community will enjoy").
41. See Madhavi Sunder, IP3 (2003) (unpublished manuscript, on fi
that while new technological and global architectures are empowerin
themselves as subjects, not objects, of culture, intellectual property
demands of traditional cultural producers in struggles to create and cont
42. See id.
43. Current law stresses alienability-the right to exit from and choose among competing
religions-at the expense of personhood, roots, and loyalty. For one critical perspective on this
approach, see Makau Wa Mutua, Limitations on Religious Rights: Problematizing Religious
Freedom in the African Context, in RELIGIOUS HUMAN RIGHTS IN GLOBAL PERSPECTIVE 417, 417
(Johan D. van der Vyver & John Witte, Jr., eds., 1996) (problematizing the "right to proselytize in
the marketplace of religions" at the expense of the cultural survival of less market-dominant
groups). See generally MARGARET JANE RADIN, CONTESTED COMMODITIES (1996).
44. See Hilary Charlesworth, The Challenges of Human Rights Law for Religious Traditions,
in RELIGION AND INTERNATIONAL LAW 401 (Mark W. Janis & Carolyn Evans eds., 1999)
entails either leaving one's community

elsewhere45--or else praying that one's cultur
Assaulting this binary discourse, Gayatri C
Third World women as having to choose fro
that "white men are saving brown wome
nativists' argument: "The women actually
alternative discourse in sight, Spivak famous
speak?""'8 Now, rumblings from interna
campaigns in Muslim communities suggest t
Confronted with the same options today,49
(arguing that "the tradition of human rights [should] take

Donna J. Sullivan, Gender Equality and Religious Freedo
Resolution, 24 N.Y.U. J. INT'L L. & POL. 795, 828-29 (19
religion and rights); cf Memorandum from Madhavi Su
Women Against Religious Intolerance: Possibilities
Rapporteur on Religious Intolerance (Aug. 23, 1995) (o
dichotomized view of religion and women's human rights)
45. See Eve McCabe, Comment, The Inadequacy of I
Protect the Rights of Women as Illustrated by the Crisi
FOREIGN AFF. 419, 422 (2000) (arguing that the inabilit
practices of groups such as the Taliban "leaves asylum law
to women to address violations of their human rights").
46. Okin, supra note 9, at 22-23 (arguing that women
"might be much better off if the culture into which they
(so that its members would become integrated into th
preferably, to be encouraged to alter itself so as to reinfor
47. Gayatri Chakravorty Spivak, Can the Subalte
INTERPRETATION OF CULTURE 271, 296-97 (Cary Nelson
other critical examinations of the interplay between wom
see LEILA AHMED, WOMEN AND GENDER IN ISLAM 244
"progress for women could be achieved only through ab
product of... the discourses of patriarchal colonialism in th
KAREN KNOP, DIVERSITY AND SELF-DETERMINATIO
(highlighting indigenous and Third World women's ant
binary discourses of women's equality versus indigen
NUSSBAUM, WOMEN AND HUMAN DEVELOPMENT: T
(2000); Lila Abu-Lughod, The Marriage of Feminism
Repudiation as a Dynamic of Postcolonial Cultural Politi
AND MODERNITY IN THE MIDDLE EAST 243, 262 (Lila Ab
of Egyptian feminism that attempts to stand outside the t
hand, and cultural authenticity, on the other); and Seyl
Interdependence, and the Global Dialogical Commu
DEVELOPMENT: A STUDY OF HUMAN CAPABILITIES 235
Glover eds., 1995).
48. Spivak, supra note 47, at 296. For incisive critiq
women, see MARNIA LAZREG, THE ELOQUENCE OF SILE
(1994); Abu-Lughod, supra note 19, at 787 (warning t
rhetoric of saving people"); and Lata Mani, Contentio
Colonial India, in RECASTING WOMEN: ESSAYS IN INDI
Sangari & Sudesh Vaid eds., 1989).
49. See Farida Shaheed, The Other Side of the Discour
Religion and Activism in Pakistan, in SHAPING WOM
STRATEGIES IN PAKISTAN 415, 441 (Farida Shahee
"[i]ncreasingly, vast numbers of women whose faith is a l
communities increasingly refuse to choose between rel

and demand both.51 Turning traditional legal understand
religion" and the "right to culture" on their heads,
rejecting law's deference to the views of religious lead
an individual right to construct one's identity, not just
cultural community but also within it. As one activist p
have the right to challenge both the doctrinaire, legalist
and the ethnic and religious chauvinism currently ascen
arena without, necessarily, being obliged to renounce th
ethnic identity."52 Recognizing that neither legal d
adequately addresses their interest in freedom within id
forging their own strategies and theories that allow f
change.
This is an important new conception of women's human rights, and of
freedom itself. While feminists have made important inroads in challenging
win choice: to give up their faith altogether or to conform to the dictates of groups whose political
agendas are cloaked in religious discourse" (citations omitted)).
50. See, e.g., FAITH AND FREEDOM: WOMEN'S HUMAN RIGHTS IN THE MUSLIM WORLD
(Mahnaz Afkhami ed., 1995); Azizah al-Hibri, Islam, Law and Custom: Redefining Muslim
Women's Rights, 12 AM. U. J. INT'L L. & POL'Y 1, 3 (1997) (describing many Muslim women as
wanting "to be good Muslims, but [wanting] to have their rights as well"); Azizah Y. al-Hibri,
Deconstructing Patriarchal Jurisprudence in Islamic Law: A Faithful Approach, in GLOBAL
CRITICAL RACE FEMINISM: AN INTERNATIONAL READER 221, 229 (Adrien Katherine Wing ed.,
2000) (asserting that "the solution to Muslim women's human rights problems is not to ask these
women to cast away their deepest beliefs in search of a Western quick fix"); Radhika
Coomaraswamy, Different but Free: Cultural Relativism and Women's Rights as Human Rights,
in RELIGIOUS FUNDAMENTALISMS AND THE HUMAN RIGHTS OF WOMEN 79, 85-87 (Courtney W.
Howland ed., 1999) (rejecting an either/or approach that would "balance" women's rights against
freedom of religion in favor of an approach that embraces both religion and equality).
51. See discussion infra Part III. In highlighting the challenges of Muslim women activists to
traditional notions of religion and culture, I do not mean to essentialize them as more religious
than non-Muslims. In fact, women's rights activists in the Muslim world engage in numerous
strategies for women's rights "from the exclusively secular to the exclusively theological, with
many permutations in between." Farida Shaheed, Controlled or Autonomous: Identity and the
Experience of the Network, Women Living Under Muslim Laws, 19 SIGNS 997, 999 (1994).
52. Shaheed, supra note 49, at 442.
53. Id. (describing this as a "neglected area . . .both in scholarship and in activism"); see also
Bahia Tahzib-Lie, Applying a Gender Perspective in the Area of the Right to Freedom of Religion
or Belief, 2000 BYU L. REV. 967, 969 (2000) (arguing that "[dissenting] women who object to
certain interpretations of their religion or belief imposed by religious leaders or society or women
who are committed to a different religion or belief from that of the wider society" are often
overlooked in analyses of the "right to freedom of religion"); Bahia G. Tahzib-Lie, Women's
Equal Right to Freedom of Religion or Belief: An Important but Neglected Subject, in RELIGIOUS
FUNDAMENTALISMS AND THE HUMAN RIGHTS OF WOMEN, supra note 50, at 117 (observing the
absence of any global document addressing women's equal right to freedom of religion).
Abdullahi Ahmed An-Na'im's work is a notable exception. See ABDULLAHI AHMED AN-NA'IM,
TOWARD AN ISLAMIC REFORMATION: CIVIL LIBERTIES, HUMAN RIGHTS AND INTERNATIONAL
LAW 10 (1990); Abdullahi Ahmed An-Na'im, Human Rights in the Muslim World: Socio-
Political Conditions and Scriptural Imperatives, A Preliminary Inquiry, 3 HARV. HUM. RTS. J. 13,
15, 21 (1990) [hereinafter An-Na'im, Human Rights] (concluding that "human rights advocates in
the Muslim world must work within the framework of Islam to be effective" and asserting that "a
modern 'Shari'a' could be ... entirely consistent with current standards of human rights").
the absolute sovereignty of the private s

violence,55 women's rights to contest
that is, to make cultural meanings-ha
women's claims suggest that women'
freedom from violence to freedom to ma
Where law has faltered, new intelle
studies and subaltern studies have steppe
traditional human rights law, which
marked by cultural relativism,56 these
cultural communities." Going furth
traditional models of representing, or t
important book, Provincializing Europe
he calls Western "historicism," which p
world's people in which to have justic
54. See Hernrndez-Truyol, supra note 31, at 32 (d

"slowly being eviscerated" by feminists). For trench
see Hilary Charlesworth, Feminist Methods in Inte
(1999) (arguing that law's noninterference in the
power of men over women); Rhonda Copelon, R
Domestic Violence as Torture, 25 COLUM. HUM
"whether state involvement in the commission of th
of torture as a violation of international human rig
Distinction and the Right to Development in International Law 1, at
http://www.law-lib.utoronto.ca/diana/fulltext/char2.htm (last visited Aug. 31, 2001) (arguing tha
international law "is built on paradigms which privilege a male perspective," specifically, the
public/private perspective that is central to liberalism).
55. See Declaration on the Elimination of Violence Against Women, G.A. Res. 48/104, U.N.
GAOR, 48th Sess., Agenda Item 111, at 4, U.N. Doc. A/RES/48/104 (1994) ("States should
condemn violence against women and should not invoke any custom, tradition or religiou
consideration to avoid their obligations with respect to its elimination.").
56. See Karen Engle, From Skepticism to Embrace: Human Rights and the American
Anthropological Association from 1947-1999, 23 HUM. RTS. Q. 536 (2001) (describing huma
rights law as culturally relativist); see also Martin Chanock, "Culture" and Human Rights
Orientalising, Occidentalising and Authenticity, in BEYOND RIGHTS TALK AND CULTURE TALK
COMPARATIVE ESSAYS ON THE POLITICS OF RIGHTS AND CULTURE 15, 15 (Mahmood Mamdan
ed., 2000) (writing that sophisticated understandings of culture are "curiously absent from th
notions of 'culture' used in the human rights debates, in which the sacralised idea of culture still
dominates"); Austin Sarat & Thomas R. Kearns, The Unsettled Status of Human Rights: An
Introduction, in HUMAN RIGHTS: CONCEPTS, CONTESTS, CONTINGENCIES 1, 16-17 (Austin Sar
& Thomas R. Kearns eds., 2001) (describing the traditional conception of culture in human rights
law as discreet and homogeneous). The historical bent toward cultural relativism in traditional
anthropology reflects the influence of anthropologist Franz Boas, who affirmed cultural relativism
as a critique of imperialism and racism. See ELVIN HATCH, CULTURE AND MORALITY: TH
RELATIVITY OF VALUES IN ANTHROPOLOGY 8 (1983); ADAM KUPER, CULTURE: THE
ANTHROPOLOGISTS' ACCOUNT 2 (1999).
57. See, e.g., GAYATRI CHAKRAVORTY SPIVAK, IN OTHER WORLDS: ESSAYS IN CULTURAL
POLITICS 197 (1987) ("The work of the Subaltern Studies group offers a theory of change.").
Cultural studies spotlight the "radical social and cultural transformation" of contemporary global
society. See generally Cary Nelson et al., Cultural Studies: An Introduction, in CULTURAL
STUDIES 1, 5, 8-9 (Lawrence Grossberg et al. eds., 1992). For more background in cultural studie
theory, see John Fiske, Cultural Studies and the Culture of Everyday Life, in CULTURAL STUDIES
supra, at 154; and Richard Johnson, What Is Cultural Studies, Anyway?, 16 SOC. TEXT 38 (1986
1987).
means to become "a European."58 In the historicist view

is marked by classic ideas of secularism-that is, by adh
of law in the public sphere, with identity, community
reserved to the private sphere. Cultures marked by an
ideal separation between public and private, Chakr
characterized as in transition or developing, sittin
waiting room of history"60 until they are ready to clai
"modern."
Under the historicist view, the continuing commitment of Muslim

women activists to religion seems anachronistic; only their commitment to
"rights" resonates. But as Chakrabarty argues, such historicism obscures the
continuing reality of religion, culture, peasantry, and parochialism in our
present. By conceiving of these phenomena as something in the past to be
overcome, transition narratives "blind us to the responsibility of looking at
the shapes and forms our modernity is taking."6' A goal of subaltern
studies, in contrast, is to see how individuals are living in the present,
negotiating universal ideals about law, justice, and rights with their
continuing commitment to religion and culture.62 Complicating historicist
descriptions of change, subaltern studies pluralize and plot reform
movements, in Spivak's words, "as confrontations rather than transition."63
In the next two Parts, I contrast these narratives in the context of
international law. While a confrontation narrative informed by subaltern
studies reads Muslim women as remaking international law, and not simply
receiving it,64 the traditional legal narrative of law in transition elides this
58. DIPESH CHAKRABARTY, PROVINCIALIZING EUROPE 33 (2000).

59. Dipesh Chakrabarty, Postcoloniality and the Artifice of History: Who Speaks for
"Indian " Pasts?, in A SUBALTERN STUDIES READER, 1986-1995, at 263, 269 (Ranajit Guha ed.,
1997) (defining "despotism" not as "a government of mere caprice and whim," but as "the
opposite of English constitutional government").
60. CHAKRABARTY, supra note 58, at 8.
61. Id. at 235-36 (quoting Sudipta Kaviraj's observation that "the more modernity unfolds
[the more] it seems to appear inescapably plural").
62. Chakrabarty is careful to note that he is not "shunning European thought," which "is a gift
to us all," but merely questioning its totalizing features. Id. at 255. At the same time, subaltern
studies is philosophically grounded "in a radical critique and transcendence of liberalism,"
particularly of liberalism's "bureaucratic" conception of citizenship and the modern state. See
Chakrabarty, supra note 59, at 286.
63. SPIVAK, supra note 57, at 197.
64. My readings of Muslim women's human rights campaigns are consistent with Harold
Koh's descriptions of "transnational legal process" and Anne-Marie Slaughter's "new real world
order." Koh and Slaughter demonstrate how transnational and nonstate actors are renegotiating the
meaning of international law to suit their evolving needs and aspirations. See generally Harold
Hongju Koh, Transnational Legal Process, 75 NEB. L. REV. 181, 183-84 (1996) (describing
"transnational legal process" as the theory and practice of how public and private actors-nation-
states, international organizations, multinational enterprises, nongovernmental organizations, and
private individuals-interact in a variety of public and private, domestic and international fora to
make, interpret, enforce, and ultimately, internalize rules of transnational law); Anne-Marie
Slaughter, The Real New World Order, FOREIGN AFF., Sept.-Oct. 1997, at 183 (describing the
new world governance system as a network, or "dense web of relations" between a changing cast
story. The transition narrative does not

"other," but also thwarts the new c
relationship to law that the New Enli
narrative that I now turn.
II. TRANSITION
A. Law's "Past"
International law ceremoniously recounts its birth in 1648.65 This date

simultaneously marks the end of a great religious conflict (the Thirty Years'
War), which brought down the Holy Roman Empire, and the Peace of
Westphalia, which created the modern nation-state system. Starting law's
story here is important. By placing itself temporally after religion-and, as
we shall see, as a philosophical response to the problem of religion-in one
swift move, religion is constructed as law's past.66 The period of the
Empire prior to 1648 is marked by a rule of religious ideology claiming to
be universal.67 This ideology was imposed; it was irrational and
undemocratic. In contrast, the emerging nation-state system, built on
notions of equality and enforceable agreement, symbolized the response of
philosophy and reason to the chaos of religion. If religion was law's past,
law was to be religion's future.
Law's transition narrative was characteristic of the Enlightenment era.
Also known as the Age of Reason, the period from the late seventeenth
through the end of the eighteenth century was preoccupied with touting the
preeminence of reason, science, and law over the absurdities of religion,
which was thought to leave men in a state of perpetual "immaturity."68
of transnational state and nonstate actors). See also W. Michael Reisman, International
Lawmaking: A Process of Communication, The Harold D. Lasswell Memorial Lecture (Apr. 24,
1981), in SOURCES OF INTERNATIONAL LAW 497 (Martti Koskenniemi ed., 2000) (outlining the
New Haven School, or Communications Theory of international law, which envisions
international legal rules as "continuously being fashioned and refashioned by a wide variety of
global actors to suit the needs of the living"); discussion infra Part III, Section IV.A.
65. See JORGEN HABERMAS, THE PHILOSOPHICAL DISCOURSE OF MODERNITY: TWELVE
LECTURES 17 (Frederick Lawrence trans., MIT Press 1987) (describing the Peace of Westphalia
as the beginning of law and as a dismantling of the "world of the divine"); David Kennedy,
Images of Religion in International Legal Theory, in RELIGION AND INTERNATIONAL LAW, supra
note 44, at 145, 146; Hilaire McCoubrey, Natural Law, Religion and the Development of
International Law, in RELIGION AND INTERNATIONAL LAW, supra note 44, at 177, 179.
66. As David Kennedy quips, "Religion is something we used to have." Kennedy, supra note
65, at 145.
67. Kennedy, supra note 1, at 112 (describing "a pre-legal international world of politics,
war, religion, and ideology").
68. IMMANUEL KANT, An Answer to the Question: What Is Enlightenment?, in PERPETUAL
PEACE AND OTHER ESSAYS ON POLITICS, HISTORY, AND MORALS 41, 41 (Ted Humphrey trans.,
Hackett Publ'g Co. 1983) (1795) (defining enlightenment as "man's emergence from his self-
imposed immaturity").
Where the final end was the attainment of Truth, philo

Descartes to John Locke, Immanuel Kant, and David H
freedom by way of exercising one's own reason-not blin
church-was the surest path to enlightenment.69
philosophes from Voltaire to Diderot, who trans
philosophers' ideas to the people, the idea that reason
science, politics, and law) would overpower-and even
religion grew.70 Nineteenth-century evolutionary th
conceive of religion as "an early human condition from
science, and politics emerged and became detached."7
century, Max Weber and adherents of Karl Marx wou
theses about the inevitable obsolescence of religion.72
We see the narrative at work in the intellectual history
law. While Christianity undoubtedly influenced inter
discipline's leading thinkers-the "fathers of internationa
distance themselves from law's religious past. In this
more successful than others. While Hugo Grotius, th
international law," believed in secular law, his writi
grounded the new discipline in natural law theories.7
discipline moved further away from religion, with some
"father," Emmerich de Vattel.75
Human rights law has pursued a similar, albeit shorter
the ashes of World War II, human rights law also has so
69. See FRANK E. MANUEL, THE AGE OF REASON 32 (1951) (describi

view that religion "was nothing but an absurd imposition upon the ig
struck at because it was not rational," Manuel wrote. Id. at 33. "Even more
attacked as a patent fraud, the artifice of those who controlled the instrumen
70. Id. at 26-31.
71. TALAL ASAD, GENEALOGIES OF RELIGION: DISCIPLINE AND REASONS OF POWER IN
CHRISTIANITY AND ISLAM 27 (1993).
72. See, e.g., MAX WEBER, THE PROTESTANT ETHIC AND THE SPIRIT OF CAPITALISM 70
(Talcott Parsons trans., Routledge 1992) (1904) ("The people filled with the spirit of capitalism
to-day tend to be indifferent, if not hostile, to the Church.").
73. See James A.R. Nafziger, The Functions of Religion in the International Legal System, in
RELIGION AND INTERNATIONAL LAW, supra note 44, at 155, 162 ("Scholars generally
agree ... that much modern international law grew out of Christian civilization.").
74. Mark W. Janis, Religion and the Literature of International Law: Some Standard Texts,
in RELIGION AND INTERNATIONAL LAW, supra note 44, at 121, 122-23 (describing Grotius as a
thinker who labored to construct a field of international law that "sought to moderate the excesses
of the Thirty Years War (1618-1648)," but who "throughout De Jure Belli Ac Pacis... relied
heavily on proofs and evidences from the Bible to demonstrate the truth of his propositions");
McCoubrey, supra note 65, at 183 ("The work of Hugo Grotius was far less a break with the past
than is sometimes supposed.").
75. Janis, supra note 74, at 127-28 (finding Vattel more committed to a secular theory of
international law and more skeptical of religion than was Grotius). Janis notes that while Grotius
closed his 17th-century text "with a prayer," Vattel's famous The Law of Nations (1758)
concluded with a quintessential "18th century Age of Reason passage" that made its "final appeal
not to God but to accuracy and utility." Id. at 126.
away from religion and natural law76 to

Thus, while human rights may be bet
religious justifications for them, the poi
required.78
B. Law's "Other"
Of course, law's transition from religion did not excise religion from
our lives. To the contrary, it simply excised religion from law, and vice
versa. In the real world, religion remains, but as an "extralegal field,"79
banished from the public and reserved to the private sphere.80 Seeking to
make a clean break with the past,8' law could separate from religion only by
definitional fiat, constructing religion as something wholly distinct from
law-that is, as law's "other."82
The Enlightenment facilitated this partition. At the same time that
international law emerged as a discipline governing the public realm,
Enlightenment theory did the important work of transforming the
conception of religion from political ideology to personal belief. As Talal
Asad recounts in his Genealogy of Religion, European historians contend
that "the constitution of the modem state required the forcible redefinition
of religion as belief, and of religious belief, sentiment, and identity as
personal matters that belong to the newly emerging space of private (as
opposed to public) life."83
According to Kant and his colleagues, one could acquire enlightenment
by transcending his religious passions and applying reason. Significantly,
enlightenment was fully attainable through the exercise of reason in the
76. The foundational documents of international human rights law-the United Nations
Charter (1945), the International Covenant on Civil and Political Rights (1976), and the
International Covenant on Cultural and Economic Rights (1976)--all reflect natural law origins.
See Hernindez-Truyol, supra note 31, at 21.
77. RHODA E. HOWARD, HUMAN RIGHTS AND THE SEARCH FOR COMMUNITY 12 (1995)
(writing that human rights "are derived from human thought about the nature of justice, not from
divine decree"). As Kennedy describes, modern human rights law reflects a "[p]ost-
enlightenment, rationalist, secular, Western, modern, capitalist" philosophy. Kennedy, supra note
14, at 114.
78. See HOWARD, supra note 77, at 12.
79. Kennedy, supra note 65, at 149.
80. David Kennedy, Losing Faith in the Secular: Law, Religion, and the Culture of
International Governance, in RELIGION AND INTERNATIONAL LAW, supra note 44, at 309, 313
("Religion was to be respected, even honored, in its own sphere-the domain of private
commitment and spiritual meaning.").
81. See Kennedy, supra note 65, at 146 (describing law's view of its own birth as pristine,
believing that it "shares nothing with the messy collapse itself').
82. See Gustavo Benavides, Modernity, in CRITICAL TERMS FOR RELIGIOUS STUDIES 186,
196 (Mark C. Taylor ed., 1998) (describing secularization as leading, not to the "disappearance of
religion," but rather to the "differentiation and narrowing of the institutional religious realm").
83. ASAD, supra note 71, at 205.
public sphere alone, even if individuals lacked the sam

private sphere.84 "The public use of one's reason must alwa
alone can bring about enlightenment among mankind," Ka
he continued, "the private use of reason may... often b
restricted, without otherwise hindering the progress of enligh
The fact that religion and reason could coexist, albeit se
enlightenment, in Kant's words, a "least harmful" pr
revolutionary concept of enlightenment was acceptable pr
did not reject, but rather cabined, religion, attempting to
passions by carefully tucking them away in the private sph
the public sphere became freedom itself; the private sphe
to harbor passion and unreason without inhibiting freedom
But controlling religion entailed far more than spatial
redefinition of religion as belief, or something internal an
on conceiving of religion as both foundationally and func
from the public fields of law and science. Foundationally,
was not premised upon reason-unlike science, it was no
could be tested, challenged, or questioned. To the contrary
argued that religion was inherently incapable of being un
reason because the only proof of God was faith.89 In cont
subjects such as law and science--open knowledge systems
rationally tested against new and external ideas-religio
84. See KANT, supra note 68, at 42 ("Nothing is required for this enlig
except freedom; and the freedom in question is the least harmful of all, nam
reason publicly in all matters.").
85. Id.
86. Id. Kant defined the public use of one's reason as the use of reason before the public, or
"the entire literate world." He called "the private use of reason that which a person may make in a
civic post or office that has been entrusted to him"--that is, in the private sphere. Id.
87. Id.
88. That said, Kant (and Hume) may not have conceived of the stark separation of public and
private that we have today. For example, Kant described the following situation as "wholly
impossible" and unacceptable in an enlightened society:
But would a society of pastors, perhaps a church assembly or venerable
presbytery ... not be justified in binding itself by oath to a certain unalterable symbol
in order to secure a constant guardianship over each of its members and through them
over the people, and this for all: I say this is wholly impossible. Such a contract, whose
intention is to preclude forever all further enlightenment of the human race, is
absolutely null and void ....
Id. at 43.
89. See DAVID HUME, AN INQUIRY CONCERNING HUMAN UNDERSTANDING (Charles W.
Hendel ed., Prentice-Hall, Inc. 1995) (1748); IMMANUEL KANT, RELIGION WITHIN THE
BOUNDARIES OF MERE REASON (Allen Wood & George di Giovanni eds. & trans., Cambridge
Univ. Press 1998) (1793). Interestingly, preeminent scientists have made similar arguments in the
modem day. See STEPHEN JAY GOULD, ROCKS OF AGES: SCIENCE AND RELIGION IN THE
FULLNESS OF LIFE 111 (1999) (rejecting the "model of warfare between science and religion"
because what distinguishes the two is reason).
system was premised upon closure. Reli

bounded, incapable of being tested or jud
Undoubtedly, these Enlightenme
anthropological and sociological unde
anthropologist Bronislaw Malinowski fa
essay, "It is not easy to dissect with the
accepted with a complete surrender
anthropologist, Clifford Geertz, althoug
a cultural system consisting of meaning
characterized religion as a closed system
systems such as law and science.94 T
within religious communities contribu
internally homogeneous. Indeed, Emil
unified system of beliefs and practices
and practices which unite into one single
all those who adhere to them."95 Durkh
distinct and wholly separate from one
Thus, religion continued to be under
uncontestable, homogeneous, and comm
While religion's irrationality and spiri
and science, it was perfectly suited for
90. Thomas Paine wrote that "[r]eason is the for

Paine], Of the Religion of Deism Compared with the
Former over the Latter, 1 PROSPECT; OR, VIEW O
CORNEL WEST, The Historicist Turn in Philosophy
360, 361 (1999) (writing that "post-Humean and
forced either to give up or to redefine the scientifi
conceptually redescribe such beliefs in moral, affect
91. See ASAD, supra note 71, at 207 (acknowled
religion and state have not remained unchanged si
to invoke his principle of the public use of reason as
92. BRONISLAW MALINOWSKI, The Foundations
THE WORK OF MYTH 131, 133-34 (Ivan Strenski ed
93. Clifford Geertz, Religion as a Cultural System
87, 89 (1973).
94. Id. at 125; see also CLIFFORD GEERTZ, ISLAM
MOROCCO AND INDONESIA (1968).
95. EMILE DURKHEIM, THE ELEMENTARY FOR
trans., Free Press 1995) (1912).
96. Id. at 38 (writing that when a "certain nu
coordination and subordination with one anothe
coherence and does not belong to any other system
taken together, constitute a religion").
97. Twentieth-century theorists critiqued the
continued to understand religion as "a distinctive
supra note 71, at 27.
98. Id. at 9 (characterizing religion as "an emine
are collective representations that express collective
only in the midst of assembled groups and whose pu
mental states of those groups.").
science would satisfy individuals' material needs, re

provided that more elusive good: meaning." Malinowsk
essay, The Foundation of Faith and Morals, with a p
people to "work for the maintenance of the eternal truth
mankind out of barbarism to culture, and the loss o
threaten us with barbarism again."'" Religion, Malin
provides society with those "indispensable pragmatic
which civilization cannot exist."'0'
In short, religion could coexist with law so long as th
separate, 02 and forcefully so.'03 Going further, their dist
their coexistence. Religion (now moved to the private sp
govern moral life, while law (in the public sphere) would
and political life. Development and modernity are define
separation of law and religion into distinct, sovereign jur
C. Constructing and Obstructing
Revisiting law's story reveals not only how law has ob

but, more importantly, sheds light on how law's tr
obstructs new constructions of religion. In order to just
the public sphere, the Enlightenment banished religion f
and constructed religion as a separate, sovereign sphere
does not belong. But in fact, law does far more than simp
religious passion. In ceding complete authority to
subjecting it to tests of rationality and legitimacy, law
99. See, e.g., PAUL TILLICH, WHAT IS RELIGION? 60 (James L. Adam

is the sum total of all spiritual acts directed towards grasping the uncondit
through the fulfillment of the unity of meaning.").
100. MALINOWSKI, supra note 92, at 172.
101. Id.
102. Significantly, anthropologists such as E.B. Tylor and James George Frazer defined
magic as primitive beliefs and practices that attempted to interpret the world rationally, in contrast
to religion, which was characterized in spiritual, nonrational terms. Defining religion and magic
this way enabled scholars to predict that science would replace magic (revealing the empirical
observations of magic to be mistaken, incomplete, or faulty), while religion would remain. See
Stephen Sharot, Magic, Religion, Science, and Secularization, in RELIGION, SCIENCE, AND
MAGIC: IN CONCERT AND IN CONFLICT 261, 262 (Jacob Neusner et al. eds., 1989)
("Religion ... is defined only in terms of its difference from science so that there is no question of
its being replaced by science."). See generally JAMES GEORGE FRAZER, THE GOLDEN BOUGH: A
STUDY IN MAGIC AND RELIGION 58 (1930) (describing mankind's "great transition from magic to
religion" as a process by which man admitted that he could not control nature and thus gradually
came to believe, or to have faith, in beings higher than man who did exert such control); EDWARD
BURNETT TYLOR, PRIMITIVE CULTURE (1871) (laying a foundation for an understanding of
religion as "belief"').
103. Kennedy, supra note 65, at 149 (describing "law's singular and repressive relationship
to religion"); see also id. ("It is unsurprising that a law so constructed would be obsessed with the
relationship, the line, the distinction, between international law and sovereignty .... ").
active role in defending a particular concept

in obstructing change.
As we shall see more fully in Part III, in
increasingly challenging the traditional Enli
both descriptively and prescriptively. Case s
reformers in Muslim communities show wom
and fundamentalist dogma and thereby
homogeneous and static religious identity
reformers are making new normative claims,
their religious identity themselves. While the
identity was always more contested than tra
revealed, they also suggest that today more
ever before is contestable and subject to recon
Thus far, however, law has not recogniz
instead seventeenth- and eighteenth-centu
define freedom as reason in the public sph
sphere without rights. Because law views rel
law fails to recognize contestation within re
more difficult to bring about changes on th
law actively advantages the status quo an
communities.105
New Enlightenment claims are defeated
modem legal view of religion is not subs
traditional one. As Alan Brownstein describe
United States continues to be defined as
dignitary right to personal belief.'06 Recent
toward viewing religion in more commu
terms,'07 particularly focusing on the right o
104. For a similar argument about the movement from s

between individuals and culture, see Sunder, supra no
membership has evolved from Pierre Bourdieu's notion
determines one's identity-toward a conception of culture
bottom up).
105. One could go further and suggest that law actively shapes religious community. It may
be the case, for example, that religious leaders take fundamentalist positions because that is what
the law expects of them.
106. Alan E. Brownstein, Harmonizing the Heavenly and Earthly Spheres: The
Fragmentation and Synthesis of Religion, Equality, and Speech in the Constitution, 51 OHIO ST.
L.J. 89, 95 (1990) (defining, from a U.S. constitutional standpoint, the free exercise of religion as
"essentially a dignitary right," and explaining that "[i]t is part of that basic autonomy of identity
and self-creation which we preserve from state manipulation, not because of its utility to social
organization, but because of its importance to the human condition").
107. Stephen L. Carter, Liberal Hegemony and Religious Resistance: An Essay on Legal
Theonr, in CHRISTIAN PERSPECTIVES ON LEGAL THOUGHT 25, 37 (Michael W. McConnell et al.
eds., 2001) (describing religion as "a communal rather than an individual exercise").
to public debate.108 Michael McConnell, for exa

Enlightenment roots of liberal secularism, not
discourses take the public out of the private, but
discourses blunt the influence of religion in the
religious sovereignty in the private sphere has gone v
In fact, this sovereignty appears so strong today th
more "like religion""' arguments, in which groups-
suffered discrimination in the name of religion-seek t
let alone, rather than rights to contest religious sovere
While law remains true to its origins, schola
beginning to challenge the binaries of traditio
discourse.12 For some time, progressive, feminist, an
108. See Noah Feldman, From Liberty to Equality: The Transform

Clause, 90 CAL. L. REV. 673 (2002) (describing the transformatio
jurisprudence from protecting the individual liberty of conscience of
guaranteeing the political equality of religious minorities). Perhaps the
this issue revolve around those who challenge John Rawls's theory
argues that in a constitutional regime "we must each give up forev
constitution so as to establish our religion's hegemony." See JOHN
Reason Revisited, in THE LAW OF PEOPLES 129, 150 (1999). I do no
focusing instead on the more often ignored question of the role of
religious sphere, rather than religion in the public sphere.
109. See Michael W. McConnell, "God Is Dead and We Have K
Religion in the Post-Modern Age, 1993 BYU L. REV. 163, 166; M
Liberalism, New Liberalism, and People of Faith, in CHRISTIAN
THOUGHT, supra note 107, at 5 (chastising secularism for its presump
can exist without religion).
110. I am tracking Janet Halley's identification of "like race" ar
analogize discrimination against them to that suffered by racial minor
greater legal protection. See Janet E. Halley, "Like Race" Argum
THEORY?: NEW WORK ON THE POLITICS OF LITERARY THEORY 40
2000).
111. See David B. Cruz, Disestablishing Sex and Gender, 90 CAL. L. REV. 997 (2002)
(arguing that sexuality should be treated like religion and accorded a similar degree of personal
autonomy); William N. Eskridge, Jr., A Jurisprudence of "Coming Out": Religion,
Homosexuality, and Collisions of Liberty and Equality in American Public Law, 106 YALE L.J.
2411, 2411 (1997) (writing that the "public law consensus to preserve and protect the autonomy of
religious and ethnic subcultures" should be extended to sexual minorities); Andrew Koppelman,
Three Arguments for Gay Rights, 95 MICH. L. REV. 1636, 1648 (1997) (noting that protection for
gay rights can be invoked by analogy to the protection of religious minorities, "who exercise
[their] important [religious] liberty in unpopular ways").
112. See CORNEL WEST, Religion and the Left, in THE CORNEL WEST READER, supra note
90, at 372; Janet R. Jakobsen & Ann Pellegrini, Getting Religion, in WOMEN, GENDER,
RELIGION: A READER 518, 525 (Elizabeth A. Castelli ed., 2001) (expressing concern that
scholars' exclusive focus on "fundamentalism" reinforces the notion of religion as irrational
without taking the responsibility of understanding the moderate and modern forces within
religion); Russell T. McCutcheon, The Category "Religion" in Recent Publications: A Critical
Survey, 42 NUMEN 284, 285-87 (1995) (comparing characterizations of religion as an essence with
more critical approaches); Miriam Peskowitz, What's in a Name? Exploring the Dimensions of
What "Feminist Studies in Religion" Means, in WOMEN, GENDER, RELIGION: A READER, supra,
at 29, 29 (asking: "What happens as we write about women and gender while simultaneously
making visible the Enlightenment constructs that restrict the imagination of women and gender in
the first place?"); Randi R. Warne, Gender, in GUIDE TO THE STUDY OF RELIGION 140, 151 (Willi
actors have been influenced by Enlighte

possible only in secular terms.'13 But no
which acceptance of the Enlightenment'
turned on downplaying discrimination i
discrimination against women.14 These sch
freedom in the public sphere is enough an
should be a sphere in which we may deman
While traditional theories of religion
religious beliefs to be unchanging, contem
fact, religion is much more internally co
argument and change than earlier theor
notion of religion as mutable, rather than
the observation that while the subject mat
textual, it is human beings who interpret
for their time. The fundamentally human
then, may be subject to tests of rationa
Parekh writes, "The divine will is a mat
interpretation, and requires [human beings]
religion in one way rather than another
interpretation entails a particular form
Braun & Russell T. McCutcheon eds., 2000) (critiquing

the public sphere preeminent over the private). With
religion and law is a notable exception. See Kennedy, s
rights discourse "overemphasizes" the naturalness of
"plasticity").
113. See CHAKRABARTY, supra note 58, at 4 ("Modem social critiques of caste, oppressions
of women, the lack of rights for laboring and subaltern classes in India, and so on-and, in fact,
the very critique of colonialism itself-are unthinkable except as a legacy, partially, of how
Enlightenment Europe was appropriated in the [Indian] subcontinent."); WEST, supra note 112, at
373 (writing that "[i]n Europe-where the Enlightenment ethos remained (and still remains)
hegemonic among intellectuals and the literate middle classes-secular sensibilities were nearly
prerequisite for progressive outlooks, and religious beliefs usually a sign of political reaction");
Elizabeth A. Castelli, Women, Gender, Religion: Troubling Categories and Transforming
Knowledge, in WOMEN, GENDER, RELIGION: A READER, supra note 112, at 3, 5 ("It has been an
obstacle to some conversations that many feminists. . . have tended to read 'religion' as an
abstraction solely in negative terms ... ."); Shaheed, supra note 49, at 416 (writing that Pakistani
leaders "had internalized the premise of the colonial discourse that any religious/cultural tradition
deviating from the approved Eurocentric Christian tradition was incompatible with the desired
goal of modernity and progress").
114. See, e.g., Suad Joseph, Gendering Citizenship in the Middle East, in GENDER AND
CITIZENSHIP IN THE MIDDLE EAST 3, 25-26 (Suad Joseph ed., 2000) (arguing that civil society
theorists' "overprivileging of the public sphere as a source of democracy and the exclusive focus
on the public/private binary have been made possible by glossing over gendered antidemocratic
forces").
115. See ASAD, supra note 71, at 236 ("Religious traditions have undergone the most radical
transformations over time.").
116. BHIKHU PAREKH, RETHINKING MULTICULTURALISM: CULTURAL DIVERSITY AND
POLITICAL THEORY 334-35 (2000). Parekh writes:
There is a pervasive tendency among religious people to claim to be in possession of
divinely vouchsafed infallible truths which they are not at liberty to compromise. This
involve faith," Parekh admits, "but it is not a matter of fa

why the two should not be equated. It involves judgm
decision, and hence reason and personal responsibility.""7
Finally, Enlightenment definitions of religion as "
personal belief obscure the role of politics-and more imp
in religious contexts.18 Religion has become "problem
from the specific historical contexts, social frameworks, p
and institutional constraints that have produced it.""9
anthropologists are criticized for being more concerne
what constitutes Truth in various religions-that is, i
religious object-than with studying how and by who
object came to be produced.'20
In short, religion's conceptualization as law's other n
confine religion but also to defend it.12 The Enlight
religion immutable and without need for justificatio
religion cannot be defended against irrationality becau
thought to be its essence.122 Heterogeneity and critical d
religion are subverted in favor of the imposed views of re
Religion is studied and preserved as a fixed, unchanging
as an ever-shifting, subjective construct.
Revealing this relationship between law and religion su
does more than cabin and control religion. In defending
sovereignty of religion, law has ceded enormous powe
sphere and, in the process, has created a different k
perverse result of "othering" discourses is that th
appropriates its negative image and wears it with pride.
fundamentalist view of religion being reproduce
fundamentalists, who hold themselves out as an alternati
morally defunct, bureaucratic rationality. More signif
leaders take advantage of a legal tradition that does no
is a wholly false reading of religion. No religion is or can be wholly div

of being altogether free of human mediation. Its origin and inspiration
human beings determine its meaning and content.
Id.
117. Id.
118. See ASAD, supra note 71, at 29 ("The theoretical search for an essence of religion invites
us to separate it conceptually from the domain of power.").
119. Castelli, supra note 113, at 6.
120. See ASAD, supra note 71.
121. See id. at 28 (writing that defining religion as distinct from law "is at once part of a
strategy (for secular liberals) of the confinement" of religion "and (for liberal Christians) of the
defense of religion").
122. Id. at 50 ("The separation of religion from science, common sense, aesthetics, politics,
and so on, allows [religious theorists] to defend it against charges of irrationality.").
123. Id. at 232.
about the internal political dimensions of

religion is imposed without internal contest or
D. Cases in Point
The practical effect of law's view of religion is that law defers to

fundamentalist claims to discriminate in the name of religion or culture,
thwarting the claims of dissenting women and other advocates of change.
This is the case in both international and national law.
1. CEDA W (Global)
The Convention on the Elimination of Discrimination Against Women

(CEDAW), which has been called the "International Bill of Rights for
Women,"'24 offers a case in point. CEDAW is a wide-ranging,
comprehensive treaty covering civil, political, and cultural rights intending
to protect women in both their public and private lives.125 To date, 170
countries have either ratified or acceded to CEDAW, the only major
international human rights instrument to address women's human rights
exclusively.126 On paper, CEDAW is a milestone achievement for women's
rights, going so far as to call on states to change customary, cultural, and
religious laws premised upon the inequality of the sexes.127
But thus far CEDAW's goals--especially with respect to the protection
of women in the private sphere-have been foiled. One of the most broadly
ratified conventions, CEDAW also has the dubious distinction of having the
highest number of reservations by the states party to it.'28 While the
reservations cover many issues, the most damning are those that reject
CEDAW's obligations where they interfere with religious or customary
124. Sheila Jayaprakash, The Right To Be Equal, HINDU, Apr. 23, 2000, at 4.
125. Most notable is CEDAW's Article 5(a), which provides:
States Parties shall take all appropriate measures:
To modify the social and cultural patterns of conduct of men and women, with a
view to achieving the elimination of prejudices and customary and all other practices
which are based on the idea of the inferiority or the superiority of either of the sexes or
on stereotyped roles for men and women ....
Women's Convention, supra note 4, art. 5(a), 1249 U.N.T.S. at 17.
126. OFFICE OF THE UNITED NATIONS HIGH COMM'R FOR HUMAN RIGHTS, STATUS OF
RATIFICATIONS OF THE PRINCIPAL INTERNATIONAL HUMAN RIGHTS TREATIES (2002), at
http://www.unhchr.ch/pdf/report.pdf.
127. See Women's Convention, supra note 4, art. 5(a), 1249 U.N.T.S. at 17.
128. See HENKIN ET AL., supra note 31, at 362 (writing that as of April 1999, CEDAW "'has
attracted the greatest number of reservations with the potential to modify or exclude most, if not
all, of the terms of the treaty"' (quoting Belinda Clark, The Vienna Convention Reservations
Regime and the Convention of Discrimination Against Women, 85 AM. J. INT'L L. 281, 371
(1991))).
laws." 2 These laws, such as many laws based on Shari'a

regressive on women's issues.'30 When other signatory st
the United Nations that the reservations based on relig
custom violated international human rights law, which
make reservations to treaties only if they do not underm
purpose" of the treaty,'"' they were cowed into silen
religious intolerance and cultural imperialism. 32 While t
has repeatedly called on parties to withdraw their reserva
129. Many Middle Eastern and Islamic countries, for example. Ban
Kuwait, Libyan Arab Jamahiriya, Malaysia, Maldives, and Morocco, took
the Convention citing prejudice to Shari'a. United Nations, Convention on
Forms of Discrimination Against Women, Reservations and Declarations,
Depts/Treaty/final/ts2/newsfiles/part_boo/iv_boo/iv_8.html#J6G2eePat
2003) [hereinafter CEDAW Reservations and Declarations]. Other coun
Israel, and Singapore, took similar reservations on general freedom of r
addition, a small number of countries, including India, Kuwait, Morocco
Tunisia, expressed reservations based on customary laws and cultural m
subsume international human rights law under religious and customary
Muslim states, for example, have long asserted a right to religious and
defiance of universal rights. The most symbolic of their statements is the
of Human Rights in Islam. Authored by the Organization of the Isl
document protests the universality of international human rights and declar
are subsumed under the Islamic law of Shari'a. See Cairo Declaration on H
U.N. GAOR, 2d Sess., Agenda Item 11, U.N. Doc. A/CONF.157/PC/35 (19
130. See, e.g., An-Na'im, Human Rights, supra note 53, at 36-50 (fi
between Shari'a and international human rights standards, including in the
but arguing that it is possible to reinterpret Shari'a to be consistent with int
norms).
131. Article 19 of the Vienna Convention on the Law of Treaties "provides that a state
ratifying a treaty may make a reservation unless it is 'prohibited by the treaty' or 'is incompatible
with the object and purpose of the treaty.' Section 313 of the Restatement (Third), Foreign
Relations Law of the United States (1987), is to the same effect." STEINER & ALSTON, supra note
1, at 439 (quoting Vienna Convention on the Law of Treaties, opened for signature, May 23,
1969, art. 19, S. EXEC. DOC. L, 92-1, at 16 (1971), 1155 U.N.T.S. 331, 336-37). In general,
tolerance of reservations has been urged in order to achieve greater participation in the treaty and
to enable a state to protect its interests as much as possible. See id. at 441. Article 28(2) of the
Women's Convention also expressly prohibits reservations that contravene its "object and
purpose." Women's Convention, supra note 4, art. 28(2). 1249 U.N.T.S. at 23.
132. See Mayer, supra note 29, at 271 ("[A]ttempts to deter the practice of reservations in
conflict with the object and purpose of CEDAW have met with resistance in the form of
accusations that these were tantamount to Western attacks on Islam and/or the Third World."
(citation omitted)).
133. See REPORT OF THE FOURTH WORLD CONFERENCE ON WOMEN, ? 130, U.N. Doc.
A/CONF. 177/20, U.N. Sales No. E.96.IV.13 (1995) (calling on states parties to CEDAW to
"consider withdrawing reservations ... [and] ensure that no reservation is incompatible with the
object and purpose of the Convention or otherwise contrary to international treaty law"); Press
Release, Commission on Human Rights, Commission on Human Rights Takes Up Integration of
Human Rights of Women and Gender Perspective, U.N. Doc. HR/CN/909 (Apr. 13, 1999), at
http://www.un.org/News/Press/docs/l 999/19990413.hrcn909.html (recommending that "all
Governments should ratify, without reservation, the Convention on the Elimination of all Forms
of Discrimination Against Women"). See generally General Recommendations Made by the
Committee on the Elimination of Discrimination Against Women, General Recommendation No.
4 (1987), at http://www.un.org/womenwatch/daw/cedaw/recomm.htm (expressing concern in
1987 over reservations to CEDAW and suggesting "that all States parties concerned reconsider
such reservations with a view to withdrawing them").
any changes made by Muslim countries

these efforts have been little more tha
Charlesworth observes, that althoug
reservations to CEDAW are likely invali
are no satisfactory mechanisms in
reservations adequately."'35 Human r
notwithstanding, "implicitly, the U.N.
position on women's rights."'36
But deference to religious leaders'
women dissenters within these religious
within the states parties making the rel
oppose the reservations, and contest th
they are based."37 These women argu
international human rights commun
traditionalists and so-called cultural lead
without taking proper account of moder
2. Personal Laws (India)
India offers one of the most infamou

how political and legal systems togeth
religious views to traditional, patriarch
of India recognized the right of an elde
alimony from her divorcing husband ba
of criminal procedure.138 While many
right to alimony for Muslim women
sparked a firestorm of protest because
expressly rejected the argument tha
husband to pay a divorcing wife any am
three months (iddat), this completely ab
134. See CEDAW Reservations and Declaration

parties, only Turkey withdrew all reservations based
135. Charlesworth, supra note 44, at 408-09 (n
themselves have been rejected as a form of religious
136. Mayer, supra note 10, at 21-32.
137. See UNIFEM, Bringing Equality Home:
www.unifem.undp.org/resources/cedaw/cedawl0.h
contest CEDAW reservations from within their stat
138. The Indian court held:
Under section 125 (1)(a), a person who, having su
maintain his wife who is unable to maintain herse
monthly maintenance to her at a rate not excee
includes a divorced woman who has not remarried
THE SHAH BANO CONTROVERSY 25 (Asghar Ali
A.I.R. 1985 S.C. 945, 948).
139. See NUSSBAUM, supra note 47, at 172.
thereafter.'40 Before Muslim women had time to celebr

Minister Rajiv Gandhi, motivated by the fear of losing
supporters, quickly introduced legislation to overturn the
resulting Muslim Women's Protection After Divorce
"deprived all and only Muslim women of the right
guaranteed under the Criminal Procedure Code."143
Muslim women expressed outrage, especially because th
never sought input from the diverse Muslim community
Standing on the steps of Parliament the day the Act was pa
asked, "If by making separate laws for Muslim women, yo
say that we are not citizens of this country, then why
clearly and unequivocally that we should establish anot
Hindustan or Pakistan but Auratstan (women's land)?"1
decision, Shah Bano touched off activism worldwide; refor
case to highlight the problem of state deference to opp
practices, and more importantly, the state's refusal to take
varying religious perspectives within India's minority Musl
Activists are bringing this critique to bear on quest
reservations and the reform of personal laws. Tho
government ratified CEDAW in 1993, it did so with reser
social and cultural patterns, rights within the family, and
marriage.'45 But now, a women's NGO, Women's Acti
Legal Action for Women (WARLAW), is "develop[ing] a
incisive legal challenge to force the [Indian] Government t
its CEDAW commitments" and to revisit its reservations.1
WARLAW brought a petition to the Indian Supreme Court
to order the government to specify "how it intends to de
communities want [their] personal laws changed" and how
"intends to include the voices of women from these co
140. See Bano, A.I.R. 1985 S.C. at 945. For a fuller account of the Shah
its aftermath, see NUSSBAUM, supra note 47, at 172-73 (reporting that the
Muslim Personal Law Board organized widespread protest against the rul
violated their free exercise of religion"); and Martha C. Nussbaum, Ind
Equality Through Law, 2 CHI. J. INT'L L. 35, 44-47 (2001).
141. See, e.g., Edward A. Gargan, Hindu Rage Against Muslims Tra
Politics, N.Y. TIMES, Sept. 17, 1993. at Al ("Worried about Muslim suppo
the Parliament change the law to void the court's ruling."); Steven R. We
Moslem Divorce Ensnarls Gandhi, N.Y. TIMES, Feb. 9, 1986, at A3 ("Politi
with Mr. Gandhi say he will probably support legislation to reverse the effe
decision. But feminists have served notice that if this happens, his party w
represent women,' as one leader put it.").
142. The Muslim Women (Protection of Rights on Divorce) Act (1986), at
http://indiacode.nic.in/cgi/nph-bwcgi/BASIS/indweb/all/actretr/SF.
143. NUSSBAUM, supra note 47, at 173.
144. Nussbaum, supra note 140, at 45 (citation omitted).
145. See CEDAW Reservations and Declarations, supra note 129; UNIFEM, supra note 137.
146. UNIFEM, supra note 137.
making this assessment."'47 While many

abandon its personal laws altogether in
still others, like the members of WARLA
the government take all constituents
account when ceding power to such com
was the case in the Shah Bano controver
women's efforts in this regard, and
intact.'15
3. Freedom of Religion and Tribal Sovereignty

(United States)
While the United States does not expressly delegate the governance of
private matters to various communities through personal or customary laws,
deference to religious or other private communities arises nonetheless in a
number of contexts. The associational speech and religious freedoms
guaranteed by the First Amendment offer one principal mechanism for
halting public intervention. In EEOC v. Catholic University of America,'51
for example, Sister Elizabeth McDonough alleged sex discrimination and
retaliatory conduct in violation of Title VII of the Civil Rights Act of 1964.
McDonough argued that she was denied tenure at Catholic University
because of her sex. But the Court of Appeals for the District of Columbia
Circuit dismissed the claim on the ground that its adjudication on the merits
would violate the First Amendment.152 Deferring to university authorities as
the arbiters of the organization's norms, the court upheld university leaders'
freedom of religion over the dissenting claim of Sister McDonough.
While it does not involve religion per se, tribal sovereignty for Native
Americans is yet another area in which U.S. law defers to traditionalists
within a culture over the claims of reformers. In Santa Clara Pueblo v.
Mkartinez.,53 a Pueblo woman and her daughter sought to apply the federal
Indian Civil Rights Act to challenge a tribal rule that granted tribal
membership to children of mixed marriages only when the father was
147. See id. (emphasis added).

148. See Padmaja A. Patil, Socio-Econoinic and Political Policies in the 1990s and Status of
If omen in India, 19 J. THIRD WORLD STUD. 195, 199-201 (2002).
149. See Nussbaum, supra note 140, at 46 (writing that the adoption of a Uniform Civil Code
in India currently seems unlikely and that, in the meantime, "internal reform" of personal laws "is
the best option for the foreseeable future").
150. Proposed revisions to Christian personal laws dating back to the late nineteenth century,
for example, have languished in Parliament since 1994. See Shuma Raha, Women: The Right
Fight. STATESMAN, Jan. 27, 2001, at 2001 WL 4381562 (reporting that "even when a particular
community had been progressive enough to submerge their internal divisions and urge reforms,
the gox ernment ... had baulked at implementing them").
151. 83 F.3d 455, 457 (D.C. Cir. 1996).
152. Id.
153. 436 U.S. 49 (1978).
Pueblo and not when the mother was Pueblo.'54 The U.

decided that it lacked jurisdiction to address the claim.15
Pueblo as a "distinct"' 56 community-"a separate
sovereignty over its internal affairs, the Court declined to
protect the "tribe's ability to maintain itself as a cultura
distinct entity.""58 Applying the traditional rationale fo
wanting to impose the state's view on the tribe-the
acknowledge that the tribe itself was conflicted. Ignoring
diversity of views within the tribe (evidenced by the lega
Court deferred to tribal leaders at the expense of the Pueb
to seek equal justice for women within the tribe.'59
4. Customaiy Laws (Zimbabwe, Nigeria, and South A
In 1999, the landmark decision of the Supreme Court o

Magaya v. Magaya'60 shocked the international human rig
case, the eldest daughter of a deceased, polygamist man w
to her father's estate and ejected from the premises whe
decided to claim ownership. The court based its decision o
Zimbabwe's intestacy code, which states:
"If any African who has contracted a marriage accordin

law or custom or who, being unmarried, is the offsprin
married according to African law or custom, dies intest
154. Id. at 51.

155. The U.S. Supreme Court decided that Congress, however oddly, had conferred certain
civil rights on tribal members, but had provided no means to enforce these federal rights in federal
court. Id.
156. Id. at 55 (citations omitted).
157. Id. (citations omitted).
158. Id. at 72; cf Lovelace v. Canada, U.N. GAOR, 36th Sess., Supp. No. 40, U.N. Doc.
A/3640 (1981). In Lovelace, the Human Rights Committee, a body that monitors states parties'
compliance with the International Covenant on Civil and Political Rights, upheld the claim of
Sandra Lovelace, who was born and registered as a "Maliseet Indian" but who lost her tribal
membership and privileges under the Canadian Indian Act because she married a non-Indian man.
Id. The Committee held that the deprivation of Lovelace's Indian status-a deprivation that would
not have occurred if Lovelace were a man marrying a non-Indian woman-violated her rights
under article 27 of the Covenant, which states that "persons belonging to ... minorities shall not
be denied the right, in community with the other members of their group, to enjoy their own
culture." Id. ? 13.2. The Committee further concluded that "to deny Sandra Lovelace the right to
reside on the reserve [does not seem] reasonable, or necessary to preserve the identity of the
tribe." Id. ? 17. Karen Knop reveals that the Canadian Indian Act incorrectly presumed that
traditional Maliseet culture was patrilineal. Indigenous women activists such as Lovelace
highlighted that, in fact, Maliseet culture was matrilineal and the Canadian Indian Act was a
colonial imposition of patriarchy. Knop argues that characterizations of the Lovelace decision as a
victory for all women's equality rights minimizes "Lovelace's claim about the cultural violence of
colonialism." KNOP, supra note 47, at 367.
159. See Santa Clara Pueblo, 436 U.S. at 72.
160. 1999(1) Zim. L. Rep. 100.
shall be administered and distributed ac

usages of the tribe or people to which h
The Supreme Court declined to interf

custom" of the father's tribe, which refus
deceased father's estate when there is a
Magaya alleged a prima facie violation o
guarantee of equality for women, the cou
customary law and civil law set fort
customary law from constitutional scrutiny.1
The case is only one of the most recent
has long debated the role of customary law
battleground is post-apartheid South Afri
Appeal recently held that women married
bereft of "all rights under a matrimonial p
ruling, many "African women are [now
Interestingly, critical appraisals of cust
women's rights in South Africa have not
laws, but rather for more dynamic and pr
laws.166 Activists denounce the static und
legal system's "cultural relativism."'67 Ref
state legal systems to take into acco
understandings of personal laws, just a
efforts can be seen in Nigeria,"68 where A
161. Id. at 103 (quoting Administration of Estates

see also David M. Bigge & Amblie von Briesen, Confl
Rights and Indigenous Self-Determination in Magay
(2000) (analyzing the Magaya case).
162. Magaya, 1999(1) Zim. L. Rep. at 104.
163. Id. at. 105-06; see also Katherine Franke, Ill
Nationalisms, in DISSENT IN DANGEROUS TIME
(manuscript at 14-17, on file with author) (describing t
regressive approach to women's rights, particularly wit
164. Khadija Magardie, Ctr. for Socio-Legal Stud
Women's Rights, at http://www.csls.org.za/dw/artl0j.h
165. Id.
166. See Penelope E. Andrews, Striking the Rock: Confronting Gender Equality in South
Afi-ica, 3 MICH. J. RACE & L. 307 (1998) (advocating a balance between protecting indigenous
culture and women's rights); Elsje Bonthuys, Accommodating Gender, Race, Culture and
Religion: Outside Legal Subjectivity, 18 S. AFR. J. ON HUM. RTS. 41, 55 (2002) (arguing for a
solution that avoids the "impossible choice" for women between conforming to civil law
standards or retaining "old forms of custom or religious law"); Martin Chanock, Law, State and
Culture: Thinking About "Customary Law" After Apartheid, in ACTA JURIDICA 1991, at 52, 67
(T.W. Bennett et al. eds., 1991) (arguing for an understanding of customary law as "tradition"
with a "future"-that is, as something that develops over time "without the exclusive control of
male elders and without state support for their interests").
167. Magardie, supra note 165.
168. In a joint statement by Baobab, a Nigerian women's rights organization that focuses on
women's legal rights under customary, statutory, and religious laws, and Amnesty International,
of an appeals court about her sentence of stoning-to-death

these countries, organizations such as the Gender Research
Centre for Applied Legal Studies at Wits University in So
the International Human Rights Law Group in Nigeria170
to abolishing customary laws but to making them just.
But these efforts are falling on deaf ears. Without

recognizes contest within cultural communities, and t
progressive change in the context of culture or religion,
either ignored or affirmatively shut down.
In each of these cases, current law is lacking both pr
substantively. Premised upon an outmoded conception
homogeneous and static, law presumes religious comm
uniform view and refuses to confront actual plurality
within a religious community. But as these examples, and t
case studies in the next Part show, women are ch
presumptions. All over the world, women are contest
customary and religious laws and demanding a right to pa
process of making religious or cultural meanings. Seen in t
law is procedurally faulty because law does not recognize
within the community as having a say in these processes.
Enlightenment view of religion leads it to only recogn
fundamentalists and traditionalists, empowering these voi
modernizers. Women's activism around the globe also
normative premise of current law, which accepts (and
identity and despotism within religion, so long as one has
the organizations took no position on "the introduction and application o

long as it is carried out in full respect of international human rights standa
with the conventions of international law signed and ratified by Nigeri
Amnesty International, BAOBAB for Women's Human Rights and Amnes
Statement on the Implementation of New Sharia-Based Penal Codes in North
2002), at http://www.amnestyusa.org/news/2002/nigeria03252002.ht
Landsberg, Muslim Feminist Focuses on Roots of Extremism, TORONTO
2002 WL 103590078 (discussing Baobab's use of Islamic law to appeal cases
the organization's proposition that the strict interpretations of Shari'a curr
courts-such as the "strict isolation of women, flogging and stoning to dea
been part of Nigerian tradition).
169. CTR. FOR APPLIED LEGAL STUDIES, UNIV. OF WITWATERSRAND,
PROGRAMME 1999, at 1, at http://www.wits.ac.za/cals/gender/annual%2
also Ctr. for Applied Legal Studies, Univ. of Witwatersrand, Women
Reform, at http://www.kit.nl/gcg/html/womenand_law_reformprojects_.asp (last visited Dec. 1,

2002).
170. Int'l Human Rights Law Group, IHRLG Women's Inheritance Rights in Africa
Initiative, at http://www.hrlawgroup.org/initiatives/inheritance_rights/ (last visited Aug. 8, 2002)
(describing efforts "to end unjust inheritance practices in Africa since 1998").
public sphere. Departing from this tra

making normative demands for a right
religion, as well as in the public sphere
claims. Intent on actively defending the n
today's law is obstructing the opera
Enlightenment. Simply stated, yesterd
today's New Sovereignty.
III. CONFRONTATION
But on the ground, women in the Muslim world are piercing the veil of
religious sovereignty. Far from reflecting a world in transition in which
formal laws (such as treaties and conventions) are imposed on individuals
at the grass-roots level, a close study of women activists in the Muslim
world demonstrates how they are confronting problems with formal laws
that often privilege the viewpoints and interests of traditionalists and
patriarchs. Rather than accepting the binary framework of religion (on
traditional leaders' terms) or rights (without normative community),
activists are developing strategies that enable women to claim both. Going
further, they are articulating new normative visions of women's human
rights that fundamentally challenge the Enlightenment premises of existing
laws. In contrast to the transition model, this confrontation brings to view a
far more dialogical model of interaction between formal human rights law
and informal human rights mechanisms; it suggests that strategic and
normative claims of "rights" on the ground may be ultimately distinct from
those articulated in formal law. Substantively, the dialogical model presents
new visions of law with which traditional law must reckon.
This Part presents two case studies that glimpse this dialogical model in
action. First, I highlight the human rights strategies of the transnational
network Women Living Under Muslim Laws (WLUML). WLUML
exemplifies an operational human rights strategy that provides women the
option of articulating and demanding freedom and equality within the
context of a normative (i.e., religious and/or cultural) community. Next, I
offer a close reading of Claiming Our Rights: A Manual for Human Rights
Education in Muslim Societies,"17 published in 1998. The Manual, like
WLUML, identifies and employs strategies for allowing women access to
both equality and community. But the Manual perhaps goes further than
WLUML by identifying the core principles and theories undergirding its
strategy. Reading them together, I identify a conceptually coherent theme in
171. MAHNAZ AFKHAMI & HALEH VAZIRI, CLAIMING OUR RIGHTS: A MANUAL FOR
HUMAN RIGHTS EDUCATION IN MUSLIM SOCIETIES (1998). In this Article, I will refer to this
manual as "Claiming Our Rights" or "the Manual."
the work of both WLUML and the Manual. Both herald w

as the rumblings of a New Enlightenment. As these ca
activists on the front lines of the war against Muslim fu
challenging old Enlightenment views that would leave rel
as spheres of despotism, and are asserting instead righ
equality within the private, as well as public, sphere.
A. Human Rights Networks:

Women Living Under Muslim Laws
Information-sharing and solidarity networks linking wo

via computers, fax machines, and the Internet have b
source of community building'72 and internationa
particularly in the Muslim context.174 The work of
powerful example. Seeking to facilitate women's h
articulated in international instruments within Muslim communities or
countries, WLUML employs strategies that begin to bridge the gaps in
formal legal analysis that currently confound the realization of women's
rights in these contexts. In the process, WLUML's strategies suggest ways
of rethinking the formal law.
Founded in 1984, WLUML emerged as a response to rising
fundamentalism and identity politics in Algeria.'75 There, as elsewhere in
the Muslim world, women's autonomy was increasingly being threatened in
the name of "Islamic" laws and customs seeking to preserve a distinctive
way of life by heavily regulating women and their bodies, long thought of
as important sites for the articulation of community identity.176
Rather than simply acquiescing to the claims of fundamentalists, or
pursuing women's human rights purely through secular strategies, as formal
human rights law would require, WLUML forged an alternate course. By
172. See Anupam Chander, Whose Republic?, 69 U. CHI. L. REV. 1479, 1493-95 (2002)
(describing how the Internet helps nurture transnational communities).
173. See generally ANNELISE RILES, THE NETWORK INSIDE OUT (2000) (describing the rise
of national, regional, and international women's "networks" as a mechanism for pursuing human
rights after the United Nations Fourth World Conference on Women in Beijing in 1995); Anne-
Marie Slaughter, Globalization, Accountability and the Future of Administrative Law: The
Accountability of Government Networks, 8 IND. J. GLOBAL LEGAL STUD. 347 (2001) (noting the
expanding influence of "transgovernmental regulatory networks").
174. See Susan Sachs, Where Muslim Traditions Meet Modernity, N.Y. TIMES, Dec. 17,
2001, at B1 (describing how the world's Muslim women are increasingly "confident of their
religious judgment and use the Internet as a forum to promote an alternative vision of the rights of
Muslim women").
175. See generally Int'l Women's Human Rights Law Clinic & WLUML, Shadow Report on
Algeria: To the Committee on the Elimination of Discrimination Against Women (1999), at
http://www.nodo50.org/mujeresred/argelia-shadowreport.html.
176. See HILARY CHARLESWORTH & CHRISTINE CHINKIN, THE BOUNDARIES OF
INTERNATIONAL LAW (2000); PARTHA CHATTERJEE, THE NATION AND ITS FRAGMENTS (1993).
networking, or sharing information with

particularly women from other Muslim com
contest the fundamentalist depictions of relig
To this end, WLUML collected information
alternative legal systems in Muslim comm
repressive-indeed, were progressive-on wo
shared this information with Algerian act
fundamentalist depictions of monolithic "Mus
provided an important source of solidarity
connecting Algerian women with other Mu
who supported the Algerian women's claims f
this offered an important retort to fundame
rights as "Western" and un-Islamic.
These strategies enabled Algerian women
and equality, but without conceding their rig
WLUML's approach confronted not only fund
religion, but formal legal understandings,
traditional legal notions about who has th
meaning and law's conception of the very nat
WLUML continues to identify many of the sa
attainment of women's rights in Muslim com
back in 1984. And the network employs
problems that are very similar to those used in
1. Identity Problems
WLUML asserts that the most serious challe

the Muslim world today is the imposition of
particularly the imposition of a religiou
Increasingly, laws in the name of Islam or
impose a singular-and, typically, conservati
on women in Muslim communities. In a perso
director of WLUML's international coordinati
characterizing laws and practices as religious
177. See ANISSA HELIE, FEMINISM IN THE MUSLIM WO

(2000) (observing that "[f]ar from being innocent, this my
limits women's and people's ability to evaluate what pert
therefore undermines their ability to assert their righ
(1997), at http://www.wluml.org/english/publications/engp
(identifying the concept of one, homogeneous Muslim wo
factors undermining "women's ability to control change and
178. WLUML, LAWS, INITIATIVES IN THE MUSLIM WOR
LAWS, INITIATIVES] (expressing concern that many states a
primary identity").
the realization of women's rights because the talism

religion insulates the claims from critique. Laws in M
"are characterized as Islamic, divinely ordained, an
therefore can't challenge," H6lie says.179 Whereas secu
and contestable, religious laws are deemed fixed and im
the "myth of a homogeneous Muslim world," and made
isolation and lack of knowledge about their rights,
made to believe that the fundamentalist view is the onl
a woman unless she abandons her religion."80 Coupled
the assertion-made by both fundamentalists and some
in the West-that human rights are a Western c
incompatible with Islam.
WLUML notes that such identity politics affect
secular state because regardless of the formal gover
"Muslim" customs have a profound influence in
possibilities.'18 Moreover, as Farida Shaheed, coord
regional coordination office for Asia has written
coexistence of multiple legal systems provides an optio
all too frequently the one least favorable to wome
implemented."'82
2. Identity Strategies
But rather than advocate purely secular strategies f

public sphere without addressing growing inequality in
traditional human rights approach would suggest),
strategies that contest fundamentalist depictions of ide
entails both critiquing the fundamentalist claims abou
identity and empowering women to reshape religio
egalitarian terms.183
179. Interview with Anissa Hdlie, Author, in London, Eng. (

WLUML, International Coordination Office Flyer (on file with autho
in the fact that, typically, in each community, this entire body of
'Islamic,' justified as divinely-ordained, and constructed as immutabl
are therefore led to believe that the only way of 'being' is the one cultu
180. Interview with Anissa Hdlie, supra note 179.
181. "In most of the Muslim world, patriarchal customs-rather
women's mobility, severely limit their access to public spaces,
information, and deny women equal access to economic resources,
processes and to educational and job opportunities." WOMEN, LAWS,
178, at 9; see also id. ("Customs can override formal legal or religious pr
182. Shaheed, supra note 51, at 1000. For example, even where form
as in Turkey and Uzbekistan, customary practices refer to Isla
INITIATIVES, supra note 178, at 12.
183. WLUML's foundational document, the 1986 Aramon Plan
"focusing on the private as an area of enormous potential change
WLUML's first strategy for underminin

involves highlighting the political and hist
thought to be essential to Islam. To this
disseminates information about the actua
throughout the Muslim world.'84 The n
information about progressive Muslim law
academic articles on women and law, ava
Internet; produces information kits, a news
disseminates Action Alerts (including over
which publicize urgent cases requiring imm
makes much of this information availab
addition, WLUML fosters "shared lived e
promoting "face-to-face interaction bet
world who would normally not have a c
women from other, culturally divers
exchanges help to break women's isolatio
fundamentalists that there is just one way o
Sharing this information undercuts the
essential to religious belief. For example
practices such as female genital mutilation
rather, vary by time and location. Female g
existed in some Muslim communities, a
practice is more popular among Christi
exposing diversity in the areas of reprodu
also "enabled women to disentangle the
custom, and law."'88 As one writer observe
Network "Women Living Under Muslim Laws": Stren

Boundary Networking, 45 SOC'Y INT'L DEV. 128, 128
184. Far from discovering any single way of being
that in fact Muslim women's lives
"range from being strictly closeted, isolated and vo
to public floggings and condemned to death for pr
given in marriage as a child, to situations where wo
freedom of movement and interaction, the right to w
and also exercise a far greater control over their own
Shaheed, supra note 51, at 1007 (quoting WLUML, 1986
185. Id. at 1009.
186. Id. at 1010.
187. See id. at 1005. As Shaheed writes:
[C]ontacts and links with women from other parts
existence speaks of the multiplicity of women's rea
provide an important source of inspiration [a
alternatives. Both encourage women to dream of di
changing the present one.
Id. at 1007.
188. Balchin, supra note 183, at 128.
laws for themselves helps women "to distinguish betw

religion."'89
Highlighting support for women's rights within the
also offers a powerful tool to counter fundamentalist c
and human rights are Western and un-Islamic.190 I
empower women to reclaim feminism, in preparation
the Muslim World Leadership Institutes,9'9 the networ
shared historical examples of women's rights activism
from the eighth to the twentieth centuries. "It was
women from the community to claim feminists from t
from their personal lives (stories about grandmoth
explains.192 "It's a tool," says Cassandra Balchin, as
WLUML's international coordination office in Lond
interview, Balchin continues, "[We are] giving women t
say that women's rights are part of your own culture."'9
Significantly, WLUML's anti-essentialist critique
fundamentalists and the liberal Left. For Mari6mn6 H61
and former international coordinator of WLUML, cult
both sides of the political spectrum is "the big threat.
Left will say, 'Well, it's their culture. Who are we?
can't interfere,"' says H61ie Lucas in an interview.195 T
way of thinking, she says, is that "everything can be t
of culture."'96 A better approach, H61ie Lucas urge
sources of cultural edicts, and to ask whose interests a
disserved by them.1'97
H61ie Lucas recalls a case in which one's conceptio
all the difference. The case involved a divorce dispute
Pakistani woman and a Nigerian man. The couple met a
189. Homa Hoodfar, Muslim Women on the Threshold of the Twenty-

DOSSIER 21, Sept. 1998, at 7.
190. Shaheed writes:
The condemnation of any challenges to existing Muslim laws as rejections of Islamic
injunctions and the very concept of Muslim womanhood is a very potent formula for
maintaining the status quo, as it implicitly threatens challengers with ostracization....
Under these circumstances, questioning, rejecting, or reformulating Muslim laws is
indeed a major undertaking.
Id. at 1005.
191. The Feminism in the Muslim World Leadership Institutes took place in Turkey (1998)
and Nigeria (1999) and were organized in collaboration with the Center for Women's Global
Leadership.
192. Interview with Anissa Helie, supra note 179.
193. Interview with Cassandra Balchin, Author, in London, Eng. (July 11, 2002).
194. Id.
195. Id.
196. Interview with Marimem H6lie Lucas, Author, in Montpellier, Fr. (June 25, 2002).
197. Id. This is similar to exercises in the Claiming Our Rights manual. See infra Section
III.B.
and eventually married and had a child

to divorce, the husband asked the Brit
law. When the judge appeared ready to
divorce rules under Shari'a, advocate
WLUML sent the judge examples of cas
in which marriages were dissolved to t
exposing someone who is a cultural
judge. "He was prepared to divorce the
is Shari'a? ... [W]hich one is the right
Today, this is an especially importan
Philippines, South Africa, and Palest
reform of personal, customary, and re
gives reformers in these communities
of justice within Muslim framewor
consideration at home.199 Empowered b
a right to offer their own interpre
demanding that the state recognize
defines culture," H61ie Lucas says. "I w
you going to deny me this right?"200
Significantly, for H61ie Lucas, the m
network since it began deals with
challenge proffered religious interp
meanings instead. "It has changed ins
powerful to change both [religion and
that's what comes out of nearly twent
what they are told is tradition or is
anymore."201
3. Identity Norms
It is at this point that WLUML's inno

normative claims. According to Shahee
it is only when women start assum

themselves the parameters of their o
unconditionally and without question
the "correct" religion, the "correc
198. Interview with Mari6md H61ie Lucas, supr

199. Balchin, supra note 183, at 127-28 (writin
world "are using their linkages through WLUM
women in family laws and strengthen their ability
200. Interview with Mariem6 H6lie Lucas, supra
201. Id.
national identity that they will be able effectively to

corpus of laws imposed on them.202
The network writes, "The essential issue is who has

what women's identities should be.... It is time
politically as well as personally-those who define w
women should be as Muslims."203 WLUML calls upo
[their] own identity" by, among other things,
* asking [themselves] and analyzing who is im

new dress codes on [them] and why;
* breaking the male monopoly of religious

interpretations... ;
* and, most importantly, by functioning as alternative
legitimising reference points for each other.204
In short, WLUML demands that women enjoy a right to challenge and to

create normative community-that is, a right to make the world. This claim
challenges not only the fundamentalists' view of religion, but law's view as
well. As H6lie Lucas says, paradoxically, both "want a homogeneous view
of Muslim laws."205 Thus, WLUML holds individuals accountable for not
taking women's cultural and religious interpretations into account when
deferring to traditionalist interpretations of personal, religious, or customary
laws. For example, in its third Plan of Action written in Dhaka in 1997,
WLUML directly confronts the "progressive media" for "fall[ing] into the
trap of cultural relativism,"206 writing that "[i]n the name of the right to
difference, they are prepared to support any practice, be it totally unjust and
against the common understanding of human rights, if so-called 'authentic
leaders' of the community justify it by reference to culture or religion." The
Plan of Action condemns the media for giving "a platform to
fundamentalists as the sole representatives of Muslims."207
202. Shaheed, supra note 51, at 1008.

203. WOMEN, LAWS, INITIATIVES, supra note 178, at 24 (emphasis added).
204. Id. at 46.
205. Interview with Maridm6 H6lie Lucas, supra note 195.
206. Plan of Action, supra note 177.
207. Id. (emphasis added). WLUML also criticizes "human rights groups," which it claims
"perhaps unintentionally... help build the legitimacy of fundamentalist groups. Because their
mandate is primarily to focus on the violations of human rights by the state, human rights groups
focus on violations committed against fundamentalists such as arbitrary arrest and illegal
detention, torture and absence of fair trials." Id. at 6. While WLUML concedes the importance of
such work, it contends that "the extreme imbalance between the representation of violations
committed by the state and by fundamentalists in recent human rights reports creates de facto
support for fundamentalists." Id.
WLUML emphasizes that far from bei

religion and culture are and ought to be pl
evolving to meet the changing needs and d
Thus, WLUML's work within the framewor
not limit itself to reading Islamic texts or
and essences.208 Rather, the network under
historical-hence, changing with cultural changes-and based on
individual autonomy-that is, as emerging from the definitions that
individual members themselves forge. WLUML empowers individual
women to take part in the process of defining their religious community and
identity based on historically evolving needs and aspirations, reason, and
exchange of information with people inside and outside the Muslim world.
4. WLUML 's Challenge to Human Rights Law
WLUML's identity strategies and evolving norms reveal the deficiency

of the strategies and choices offered by traditional human rights law. While
traditional human rights law is content not to challenge despotism in the
private, religious and cultural sphere-indeed, it more often defends
despotic religious practices-WLUML is confronting injustice within the
contexts of religion and culture. WLUML's approach is in part strategic:
The network recognizes that religious claims are particularly hard to
challenge, and therefore expends effort to deconstruct religious claims as, in
part, contingent and political. Perhaps more importantly, WLUML
recognizes that many women will resist rights if they are only possible
outside the context of religious and cultural community. Thus, it pursues
strategies that would reconcile religion and rights, making it possible for
women to have both.
But WLUML's proclamation of a right to contest and create culture
also presents a normative challenge to traditional legal understandings of
rights, and freedom itself. The organization suggests that normative,
religious, and cultural experience may be so important that it requires more
208. Reformers characterize a purely textualist approach as too limited. "We can show that
what the Prophet said was a step forward" on a particular issue, such as slavery or women's rights,
Hdlie Lucas says. Interview with Mari6md Hl1ie Lucas, supra note 195. "But we cannot limit
ourselves to that. If the Prophet says 'beat your wife lightly,' or 'be kind to your slave,' a religious
approach would limit itself to these" instructions. Id. "Maybe within reinterpretation people can
go further than that. But a secular approach would be no slavery" under any circumstances. Id. In
addition, few Muslim women have the expertise or credentials to challenge traditional Islamic
interpretations. "If you are talking about reinterpretations, there the problem is historical-that
women have historically been excluded from interpretation, and they therefore lack the capacity in
terms of knowledge of Arabic, knowledge of jurisprudence, admission into colleges that teach
theology, etc.," says Balchin. Interview with Cassandra Balchin, supra note 193. "It's very
difficult if you don't know Classical Arabic. It's difficult if you don't have the legitimacy of
education at certain places." Id.
substantive rights within these spheres than are curre

formal law. Under current law, individuals would h
discriminatory community in pursuit of equality in th
WLUML's strategies suggest that exit rights, without m
women of the fundamentally important right to religiou
same time, WLUML's work suggests that a meaningful
cultural community requires that individuals have a ri
the shaping of the community because community
freedom within it is also insufficient. In short, W
articulate a right to more democratic culture.
It is important to note that WLUML's innovative, cul
based approaches to women's human rights do n
traditional, secular human rights approaches. Nor does
culture- and religion-based strategies exclusively. To b
employs purely secular strategies for pursuing women
many WLUML activists identify themselves as secularist
to what strategies work best in particular context
emphasize that "these are choices, not destiny."210
points out, many observers try to confine the networ
within."211 "Whenever we do a religious interpretation
easy to get funding," H6lie Lucas says, and "it's usually
to speak about. There are all sorts of indications that th
be-indigenous."212 For example, some outsiders incorre
209. H61ie contrasts the network with the U.S.-based Catholics for a F
WLUML collaborates regularly. Interview with Anissa H61ie, supra n
between the two groups, Hdlie says, is that the members of Catholics f
believers, which is not the case in the Network. While many wom
indeed believers in Islam, there are also many people who choose a s
they may also be believers), and there are those who are not believers b
born and raised in a Muslim community, are assumed to be "Muslim
laws are applied. id.
210. WLUML, Introduction, WLUML DOSSIER 23/24, July 2001,
Lucas, What Is Your Tribe?: Women 's Struggles and the Constructio
DOSSIER 23/24, July 2001, at 49, 59 ("What is of most interest to m
different but complementary strategies [of Muslim feminists], only
getting most attention, most funding, most recognition. It is seen as th
best for 'Muslims.' Indeed, it is the strategy of religious interpretati
Politics of Theorizing "Islamic Fundamentalism".: Implications jb
Movements, WLUML DOSSIER 23/24, July 2001, at 64, 71 (critiquing
woman" whose identity is determined singly by religion); Farida
Identities-Culture, Women's Agencv and the Muslim World, WLU
2001, at 33, 34 (expressing concern that preoccupation with religiously
Muslim women at the expense of recognizing multiple strategies, inc
determines the role of Islam in the lives of women," and implies that "
to live in a world that is defined solely by a religious identity, is exclus
that is insulated from any other social political or culturally relevant inf
of power, the technological revolution, the culture of consumerism, etc.
211. Interview with Mariemd Hl1ie Lucas, supra note 195.
212. Id.
group's activities "as reinterpreting th

"They essentialize us."213 Of course, there
side as well. While some view WLUML a
countries we are labeled atheists," Hlie Lu
To be sure, many WLUML networkers h
women's rights. At the same time, obse
between traditional understandings
implementation and interpretation on the
also see that WLUML's emerging strategie
distinct from those articulated in tradition
of their Western counterparts, who might
with being antireligious, WLUML recogn
women must be able to influence the c
Indeed, WLUML contends that even in a se
of family, culture, and religion, and not t
influence women's lives and opportunities
in all aspects of their lives, WLUML innov
be actively involved in critiquing, con
Emerging from WLUML's confrontation w
is a new legal claim: Women must have a r
their own terms.
B. Human Rights Manuals-Claiming Our
Human rights training manuals are ye

international law. At first glance, these m
for helping to communicate with women o
international law, or for training the train
activists from groups such as Human
International how to conduct consciousnes
in local communities worldwide. But o
human rights training manuals, like WL
remaking legal strategies and theories. In
further than networks such as WLUM
articulating theories of women's human r
creative strategic programs to impleme
studying the normative theories and strat
offers another view of how rights on the
from law in theory.
213. Id.
214. Id.
215. On consciousness raising as a feminist strategy for change generally, see CATHERINE A.
MACKINNON, TOWARD A FEMINIST THEORY OF THE STATE 83-105 (1989).
This Section studies Claiming Our Rights: A Manu

Human Rights Education in Muslim Societies,216 an amb
kind manual designed to foster women's human rights a
level in Muslim communities. Claiming Our Rights-
1996217--diverges from prior manuals in significant wa
the Sisterhood Is Global Institute (SIGI) by Mahnaz A
Vaziri, Claiming Our Rights sought to address speci
scholars and activists identified as impeding women's hu
Muslim world.218 First, reformers were concerned that
cultural texts and stories to help convey the abstract rig
international legal documents would make the transl
human rights concepts to local Muslim communities
reformers had no theory or strategy to respond to c
fundamentalists-and some Western cultural relativist
universal human rights are "Western" and thus inco
Islamic or Muslim way of life. Third, and perhaps m
without a mechanism for reconciling human rights a
reformers found themselves only able to make rights ar
terms, completely relinquishing the terms of cultural an
to patriarchs.
Thus, the Manual's goals were both strategic a
Strategically, Claiming Our Rights sought to facilitate t
international human rights law to local Muslim com
216. AFKHAMI & VAZIRI, supra note 171. The Manual, which was fir
has since been translated and adapted for use in countries as diverse as
Egypt, India, Iran, Jordan, Lebanon, Malaysia, Pakistan, Syria, the United
As of 1998, nearly 2000 women and men were estimated to have parti
pilot workshops. See id. at iii.
217. See Barbara Crossette, A Manual on Rights of Women Under Isl
29, 1996, at A4 (announcing the Manual's historic publication "with the
Islamic regime in Afghanistan hovering over the debate" on women's hum
world).
218. See generally KUMARI JAYAWARDENA, FEMINISM AND NATIONALISM IN THE THIRD
WORLD 2 (1986) (observing that feminism was "not imposed on the Third World by the West"
and detailing a far more complex history of feminism in the Third World); FATIMA MERNISSI,
BEYOND THE VEIL: MALE-FEMALE DYNAMICS IN MODERN MUSLIM SOCIETY 169 (Ind. Univ.
Press 1987) (1975) (describing acquisition of greater rights by women in Muslim communities as
"a random, non-planned, non-systematic phenomenon, due mainly to the disintegration of the
traditional system under pressures from within and without"); VALENTINE M. MOGHADAM,
MODERNIZING WOMEN: GENDER AND SOCIAL CHANGE IN THE MIDDLE EAST (1993) (noting that
Islamist feminist movements simultaneously seek to maintain authentic cultural traditions and
institutions while selectively incorporating from the West to advance women's rights); WOMEN,
ISLAM AND THE STATE (Deniz Kandiyoti ed., 1991) (highlighting the role of state building in the
development of feminisms in Muslim societies); Chandra Talpade Mohanty, Under Western Eyes:
Feminist Scholarship and Colonial Discourses, in THIRD WORLD WOMEN AND THE POLITICS OF
FEMINISM 51, 51 (Chandra Talpade Mohanty et al. eds., 1991) (positioning "the intellectual and
political construction of 'third world feminisms"' at the crossroads of two simultaneous projects:
one of deconstructing hegemonic Western feminist discourses and another of constructing
historically, geographically, and culturally grounded feminisms).
effectively answering the claim that univ

Muslim women. Normatively, the Manu
incompatibility of religion and rights.
The result is a manual that, unlike tr
reconceives rights as also relevant in religi
in the public sphere. Arranged into twe
around hypothetical scenarios that highlig
during the Fourth World Conference o
China, in September 1995,219 the Manual
label as translation, textualism, constru
Translation involves collecting stories, t
examples from local cultural and religio
international human rights laws to women
collection and presentation of specific rel
explain and support the rights articulated
parcel of the translation effort. Viewed b
textualism strategies-to the extent the M
women's rights and international law-appe
thesis. Religious and cultural texts are used
help deploy secular, universal human right
rights themselves remain unchallenged.
But viewed in conjunction with two ot
and reconstructivism-the Manual begins t
with traditional international law than an
textualism does not rely purely on texts t
call these "good texts"-but also includes
challenge the rights expressed in internat
texts," women participants are not asked t
in cases of conflict, but rather, are encou
critique them. Religious texts are revealed
that are historically contingent and biased
Revealing some religious truths as part
reconstruct religious and cultural norm
international human rights principles and
aspirations.
219. These issues include women's rights to autono

integrity; subsistence; education and learning; emp
religious beliefs; free expression; and political partic
family and during times of conflict. See AFKHAMI & V
1. Translation
Initially, Claiming Our Rights simply seeks to translate, or "use

indigenous ideas, concepts, myths, and idioms to explain the rights
contained in international documents" to Muslim women at the grass-roots
level.220 For years, Muslim activists and scholars worried that the lack of
culturally relevant language to convey to Muslim women the message of
international human rights documents was a major impediment to the
propagation of the concepts and to expansion of women's human rights in
Muslim societies.221 At a meeting in Berlin in May 1995, representatives
from sixteen Muslim countries meeting to discuss strategies for improving
women's human rights in their regions concluded that "the production of
material using indigenous concepts and ideas to support international rights
documents" was a project of "highest priority."222
True to this goal, Claiming Our Rights presents excerpts from several
leading human rights instruments-including the Universal Declaration of
Human Rights (1948),223 the International Covenant on Economic, Social
and Cultural Rights (1966),224 the International Covenant on Civil and
Political Rights (1966),225 and the Convention on the Elimination of All
Forms of Discrimination Against Women (1979)226-in dialogue with
supporting texts from Muslim communities, such as the sura of the
Qur 'an;227 samples of hadith concerning women;228 examples of women
role models, some from among Muhammad's wives and daughters;229 and
samples of Arabic proverbs concerning women.230
The cultural and religious examples are offered to help explain abstract
international rights in a local language.231 The notion of "equality," for
220. Id. at 1 (discussing the need to find indigenous concepts and ideas "to support"
international rights documents).
221. Id. ("The idea of a human rights education project for women in Muslim societies
originated during a series of meetings, discussions, and conferences held and sponsored by SIGI
since 1993.").
222. Id.
223. Id. at 85-89.
224. Id. at 91-99.
225. Id. at 101-15.
226. Id. at 117-27.
227. The sura are passages from the Qur'an. Id. at 53-73.
228. Id. at 75-78. The Manual describes hadith as "the term applied to the reports of the
Prophet Muhammad's words and actions." Id. at 75. Hadith were first recorded by the Prophet's
companions orally and later translated into writing. Because of the human intervention involved in
writing the hadith, the authenticity of many of them-of which there are thousands-remains a
subject of disagreement among Islamic scholars. Id.
229. Id. at 79-81.
230. Id. at 83-84.
231. The Manual does not limit the use of cultural examples in training sessions to those
examples it supplies. Instead, Manual facilitators are requested to "make a point of collecting
cultural materials-proverbs, quotes from literary works, biographies of role models, and/or
newspaper clippings" found in the cultural settings in which they are teaching. Id. at 13.
example, is engaged in the very first wor

on a hadith from the Prophet Muhammad
are equal, as equal as the teeth of a comb.
of equality through discussion of the P
"[t]here is no claim of merit of an Arab ov
a black person, or of a male over a female."
2. Textualism
In order to translate international rights to local communities, the

Manual relies heavily on texts from religious and cultural sources that
support women's rights-my so-called "good texts." On the issue of
domestic violence, for example, the Manual offers a verse from the Qur'an
that states that "[i]f a wife fears cruelty or desertion on her husband's part,
there is no blame on them if they arrange an amicable settlement between
themselves."234 On the subject of the freedom of religion, the Manual
quotes the Qur'an as stating, "[l]et there be no compulsion in religion."235
"Good texts" help women relate to international human rights. At the same
time, "good texts" respond to claims by fundamentalists and cultural
relativists that universal human rights are foreign to Muslim religion and
culture. "Good texts" demonstrate to women that their human rights are
"supported by their cultural traditions."236
Without more, the Manual's strategies of translation and textualism do
not represent anything new in human rights theory. In both instances,
culture is engaged pragmatically, accommodating women's religious
beliefs, but ultimately only in the service of helping women to learn their
universal human rights.
But the Manual's textualism also includes "bad texts"-that is, texts
that might be read as more hostile, or equivocal, with respect to women's
equality and autonomy. In a session on women's right to choose whom to
marry, for example, the Manual juxtaposes international legal text stating
that "[m]arriage shall be entered into only with the free and full consent of
the intending spouses"'237 with conflicting religious texts. One verse from
the Qur'an states, "We have enjoined upon man (to be good) to his
parents," asking women to think about their obligations to obey elders; yet
another verse states that believers "enjoin what is just, and forbid what is
evil," suggesting, perhaps, that women ought to do what is right for them.238
232. Id. at 16.

233. Id.
234. Id. at 27.
235. Id. at 39.
236. Letter from Sisterhood Is Global Institute to author (Jan. 29, 1997) (on file with author).
237. AFKHAMI & VAZIRI, supra note 171, at 19.
238. Id.
Women are encouraged to discuss the issue in light of

In an exercise on veiling, the Manual offers a verse from
that men should be modest before God by lowering
modest women should "draw their veils over their bos
their beauty except to their husbands" and other members
Facilitators then ask women whether these injunctions
obligations of women and men, and who decides how w
both of these examples, texts are used not merely to t
also to encourage women to weigh and judge the texts t
3. Constructivism
It is in this critical textualist approach that the Manual begins to look

like something new. By encouraging women to question religious texts, the
Manual challenges the traditional legal conception of religion as natural and
incontestable. To the contrary, one of the "major premises" of the Manual is
that many religious texts are historically contingent and subject to human
bias.241 For example, the Manual characterizes the "shari'a-the rules
which have governed Muslim societies throughout the centuries," as
"historically determined and temporally situated because it has had to be
rendered understandable to each age and community by reference to the
needs of that age and community."242 The Manual states that the Shari'a
laws, which were written by men, may be flawed and politically biased.
"Because human society has been organized hierarchically and patriarchally
across the ages, the shari'a, like all other religiously inspired laws, reflects
the social realities specific to that age," the Manual states.243
The constructivist strategy emphasizes not only the contestability of
religious laws and interpretations, but also their multiplicity and flexibility.
"The interpreters of the Qur'an... have been able to offer different
interpretations during different epochs precisely because the original
'Word' is infinite in depth and scope," the Manual states.244 "Hence, it is
applicable to innumerable circumstances and is able to define evolving
conditions infinitely."245
239. Id. at 23.

240. Id. at 23-24.
241. Id. at 3.
242. Id.
243. Id.
244. Id.
245. Id.
4. Reconstructivism
Revealing that religion is in part a human construction is a first step in

enabling women to question and critique religious laws. But the Manual
goes further. It also empowers women to reconstruct religion. Through
twelve workshops, the Manual uses hypotheticals, role playing, and
storytelling to enable women to construct a dialogue and negotiate, rather
than avoid, the tensions between Muslim traditions, international human
rights concepts, and evolving notions of gender equality.246 In its own
words, the Manual examines not the conflict but the "relationship between a
woman's basic human rights and her culture."247 Under this approach,
rights are not imposed from outside or above a community, but rather are
derived from the process of women negotiating conflicts within the
community.
In short, women's human rights emerge, or are reconstructed, through
dialogue and participation-both within one's cultural community and
ultimately in the legal world of international human rights itself. The
cultural basis for human rights in Muslim communities under the
reconstructivist method, then, is not just proverbs and quotations from
religious texts, but the workshop participants themselves. The Manual self-
consciously seeks to help "individuals become participants in defining the
relevance and validity of ideas regardless of their source or age," stating
that "[t]he appropriate function of a human rights education model,
therefore, is to promote 'rights' by facilitating individuals' participation in
the definition of law or truth."248 It is only when women "reclaim their own
cultures, interpreting texts and traditions in self-empowering ways...,
[that] women may truly claim their rights."249
Thus, the Manual is a tool not just for teaching knowledge, but for
empowering action-that is, for empowering women to construct new
cultural, religious, and legal knowledge. Practical exercises prepare and
empower women for the political activity of rejecting imposed norms and,
246. See, e.g., id. at 27-29 (presenting a hypothetical conversation between Leila and her
friend Zahra, who has just been raped); id. at 33-35 (describing the dilemma of Ayda, a top
student who is denied permission to take a science class because of her gender); id. at 36-37
(presenting a hypothetical in which Fatima, a medical student, discovers she is being paid less
than half of what a male medical student is being paid for the same work in a local doctor's
office). There is an interesting coincidence of method here with the approach of some critical race
scholars, who also rely upon dialogue and narrative to promote rights consciousness. See, e.g.,
DERRICK BELL, AND WE ARE NOT SAVED (1987); RICHARD DELGADO, THE RODRIGO
CHRONICLES (1995).
248. Id. at 4. Rather than aiming at incontrovertible truths, it produces dialogical frames
where "ideas can be freely discussed and analyzed," the Manual states of its methodology. Id.; see
also id. at 5 (explaining that the model "does not aim to teach a particular truth but rather to
establish dialogue"); id. at 12 ("[T]his manual does not seek to impart truth.").
249. Id. at 9.
1450 The Yale Law Journal [Vol. 1 12: 1399
in turn, creating their own truths and meanings. Thro

exercises focus on encouraging women to speak thei
express themselves freely, "without self- or other kinds o
a variety of settings, public and private. In a session on
responsibilities within the family, for example, partici
consider how they interact with male members of their f
the women when was the last time they asked a male rela
and how they broached the subject,252 the exercise enc
share both frustrations experienced in communicating
members and strategies for successful communication.
a hypothetical conflict between a daughter, Leila, and h
choice of whom to marry.253 Leila is not averse to the
chosen for her, but would like the opportunity to get t
finalizing the arrangement. The young man, Karim, has
Leila's father does. Participants are asked to consider
obligations, and how Leila may successfully present her v
Another exercise encourages women to discuss fam
their husbands. In this hypothetical, Leila, now married
use contraception but Karim is afraid of community stig
facilitates the discussion with an excerpt from CED
women's right to "decide freely and responsibly on the n
of their children" and a verse from the Qur 'an stating t
parenting, "[n]o soul shall have a burden laid on it g
bear."255 Participants are asked to "consider what aspects
and religious experiences support women's rights within
Later, the Manual directly addresses women's rig
religious authorities. In an exercise entitled "Learnin
Manual seeks to "underscore the relationship between h
Islam is taught, and what is learned, to suggest that wo
understanding Islam and may do so differently than m
women's actual and potential role in teaching and interp
Women are asked whether "both women and men" are "
and understanding the Qur'an and hadith," and "[i]f wom
Qur'an, would they emphasize different issues than tho
250. Id. at 40.

251. Id. at 17-18.
252. Id. at 17.
253. Id. at 18-19.
254. Id. at 21-22.
255. Id. at 22-23.
256. Id. at 19.
257. Id. at 35.
stressed?"258 The Manual asks, "If you

community what aspects of Islam would y
The penultimate exercise has the le
hypotheticals-Leila, Karim, and friend
demonstration at the local university, to p
silence a friend, Huda, who has written
experience with domestic violence.260
women organize around a common ca
communities? Have you ever organized
common goal?"261 The final session asks w
women's basic human rights a commun
encouraging dialogue, several exercises t
women to draft model laws that better ad
asked, for example, to "write a law" ad
against women.263 After discussing their e
on this project, women are asked what role
strengthening the laws against various form
5. Rumblings ofa New Enlightenment
It is through this reconstructivist appro

that Claiming Our Rights charters n
conceptions of human rights, the Manu
of democracy within culture, not just outs
rumblings of a New Enlightenment: T
assumptions that rights, reason, and auton
belong purely in the public realm. "The op
and authenticity in a context of freedom a
An interview with one of the Manual's coauthors reveals more about
the cultural and political context within which the Manual seeks to
intervene. Mahnaz Afkhami explains that this radical new approach to
thinking about religion and rights emerged out of Muslim feminists'
frustrations with traditional conceptions of women's human rights.267 On
the one hand, she recalls, Muslim reformers were frustrated with the claims
258. Id.
259. Id.
260. Id. at 44-46.
261. Id. at 46.
262. Id. at 49.
263. Id. at 29.
264. Id.
265. Id. at 5 (describing the Manual as "geared to ideas, structures, and actions that enhance
democracy and promote civil society").
266. Id. at 6.
267. Telephone Interview with Mahnaz Afkhami, Author (Aug. 1, 2002).
of fundamentalists and cultural relativists, who held that

Western or foreign. "I have traveled all over the Musl
never heard anybody say that we don't want [a right] beca
right," says Afkhami, an international women's rights ac
thirty years. "[T]he right to choice-no one opposes that."2
On the other hand, Afkhami says that reformers bega
traditional notion that religion and rights do not mix. "Du
with women's groups in Iran in the 70s we had a hands of
religion," Afkhami recalls. "We did not engage because w
with the option that either you believed in rights or you
religion and there was just no way of doing both."269 Bu
began to challenge this dichotomy, asserting that cho
religion was an extreme sacrifice many women were
make.270 As Afkhami tells it, this changing consciousnes
shifts due to modernization and globalization. Over tim
women-both those on the ground and those in activi
positions-felt more empowered to question traditional re
rules. "As traditional societies change, people become m
individual rights," Afkhami says. "At one point, the law w
everybody accepted and people just had to obey what was
are moving toward rights. We are moving from law to rights.
In other words, modernizing societies-including M
are moving away from accepting law or imposed identiti
era that posits an individual's right to construct identity
rights on one's own terms. The Manual's reconstruct
premised on this notion: Individuals are not taught "t
international law, but rather are empowered to construct
of the truth-be it in a cultural, religious, or public conte
part of the methodology is the consciousness that yo
people, by either religious edicts or human rights edicts,"
You let people discuss it for themselves and come to

for themselves. It's striving for a new way of lear
emphasizes the individual as an empowered being wh
for herself. It connects again to the idea that that
decides how she sees her religion and how she sees the
between various rights and her religion.272
268. Id.
269. Id.; see also IN THE SHADOW OF ISLAM: THE WOMEN'S MOVEMENT IN IRAN (Azar
Tabari & Nahid Yeganeh eds., 1982).
270. Telephone Interview with Mahnaz Afkhami, supra note 267.
271. Id.
272. Id.
For Afkhami, the Manual's engagement wi

antisecular. In fact, Afkhami believes that "[
human rights" because women should not
religious identity-imposed upon them.273 Bu
beyond this by not accepting that people
Afkhami says. The Manual, in contrast, assert
their own spirituality, their own exercise of
that "sometimes feminists have had a way of
lot of other feminists to religion. That's som
difficulty in solidarity building."274
Significantly, while Claiming Our Rights co
does not reject it. Rather, it takes human
applicable in more aspects of women's live
public contexts. Afldhami says of the Manual
It's radical.., .because it is a new way of

one can in allowing people to make c
autonomous definitions of their identit
otherwise.... It allows people-for many,
first time-to think that it is possible to r
relate to culture directly, and to make the
means.275
Indeed, this is a "radical" new conception of human rights. While

traditional legal understandings of the "right to religion" favor leaders'
views of the religion over those of dissenters and actively affirm the right of
leaders to impose their views on members, the Manual views freedom of
religion and choice as an individual right to participate in the group and to
shape one's own religion-not just as an individual right to belong or to
leave. "You talk about the right to exercising your religion, but the nuance
of here's an individual woman wanting to say what her religion means to
her and not wanting to comply with what some mullah says it is" has been
less theorized, Afkhami says. Claiming Our Rights allows the religious
authority "the right to his interpretation, but he just simply does not have
the right to tell me to change my interpretation," Afkhami continues,
acknowledging that in this way the Manual heralds "a new way of
extending, expanding, and communicating the actual practice of the right to
religion."276
To be sure, like WLUML, the Manual does not advocate a culture- or
religion-based approach to human rights in all contexts. Field studies
273. Id.
274. Id.
275. Id.
276. Id.
testing the Manual in various countries have foun

approaches are more appealing in some countries and less
For example, in her home country, Iran, where theocracy
for more than twenty years, Afkhami says that religious
popular. "There [women] resist religion and they want to
[international] conventions and material like that," she say
population in Iran since the revolution has become more a
Not in terms of the government but in terms of the c
different settings, different aspects of the [Manual] have
In Afghanistan, on the other hand, many reformers have
engagement with culture and religion is necessary.279
The Manual's open framework has led to its appropriat
groups around the world. According to Afkhami, Claimin
thus far been translated into twelve languages and h
"reevaluated and readjusted as it has been produced and
different countries."280 "The methodology and the M
flexible," Afkhami says, so that "[p]eople are making new
Manual all the time. There is not only a Jordanian versio
are many Jordanian versions of it."281
Where the Manual itself has not been adapted, its appro
Even traditional human rights manuals that at one tim
277. See SISTERHOOD IS GLOBAL INSTITUTE ANNUAL REPORT 200

country reports from field tests of the Manual in Azerbaijan, Bangladesh,
Lebanon, Pakistan, Syria, and Uzbekistan).
279. June Starr's work on Islamic justice in Turkey suggests a dia
between secular and religious law. According to Starr, religious campaign
periods of secularization; and, vice versa, secular campaigns have more reson
moments. See JUNE STARR, LAW AS METAPHOR 176 (1992) (writing
religious sentiments within otherwise secular campaigns for legal reform
does not represent a problematic aberration in the secular legal project, but
in the pendulum toward more complexity in the dialogue").
282. A review of other country-specific manuals for women's human rig
cultural approach is used by a number of women's human rights gro
ABBAS, HUMAN RIGHTS EDUCATION FOR WOMEN: AN ISLAMIC PERSP
Sudanese women to discuss religious and cultural tenets that both contradic
human rights); MANISHA GUNASEKARA, DRAFT TRAINING MANUAL O
RIGHTS EDUCATION 86 (1995) (encouraging women to "recast" traditional
texts "from a constructive feminist optic" and calling forth a "radic
tradition"); LILA-PILIPINA, WOMEN'S HUMAN RIGHTS EDUCATION: A T
(1995) (urging Filipino women at the grass roots to reconceive internatio
recognizing the limitations of international treaties "vis-A-vis religion, eth
class stratification[,] ... racism and other patriarchal ideologies of
WOMEN'S HUMAN RIGHTS GROUP, TRAINING ON WOMEN'S RIGHTS AS
(using culture for educational, but not necessarily nationalist,
GUHATHAKURTA & KHADUA LINA, EMPOWERING WOMEN AT THE GRA
FOR WOMEN'S HUMAN RIGHTS EDUCATION (1995) (taking a more secular
on increasing women's political participation in hopes of securing a Unif
"secular" approach283 have begun to

Claiming Our Rights. A popular hum
Local Action, Global Change: Learning A
and Girls,284 written by human rig
Flowers, and Mallika Dutt, is an exa
Action, Global Change took a traditio
human rights that spent little time o
community,285 the current version que
approach in securing women's rights.28
example, Local Action, Global Change n
to prevent secular legal reforms, wh
foreign and "counter to religious law an
Taking a reconstructivist approach si
manual states that it may be "necessary
interpretation of different religions, s
believe."288 An exercise entitled "Analy
list religious and cultural practices in
women and men. Participants are asked
and "Who is benefiting from the pr
women are not asked whether human r
but rather, whether it is possible to fi
religion that are not oppressive to any
women how they would "go about pr
Finally, rather than view human right
human rights law, the revised manua
evolutionary."291 Documents such
documents for giving women som
standards." But the manual continues th
will end misuse of religion and governance of fam

these manuals were sponsored and partially fund
Education, a United Nations project.
283. Interview with Nancy Flowers, Autho
International, in Stanford, Cal. (Oct. 29, 1997).
284. See JULIE MERTUS ET AL., LOCAL ACTION
HUMAN RIGHTS OF WOMEN AND GIRLS (1999).
285. In fact, a pre-Beijing version sought to hel
and embrace their global identity as women. Julie
Women's Human Rights (1995) (unpublished manusc
286. The Manual also directly quotes many co
Muslim world. See, e.g., MERTUS ET AL., supra n
Farida Shareed); id. at 41-42 (citing reports of the
287. Id. at 41.
288. Id. (quoting Nawal El Saadawi, Fundamentalism--a Universal Phenomenon, WLUML
DOSSIER 9/10, Dec. 1991, at 30) (emphasis added).
289. Id. at 29.
290. Id.
291. Id. at 206.
these documents should not be presented as "perfect"

Women should be encouraged to examine and question
The facilitator may point out that women's participatio
perspective in the drafting and enforcement of i
documents has been far from perfect. Moreover, not
women have been addressed. Participants should c
these documents might have been different if all wom
had been represented and respected.292
This review of contemporary women's human rights

reveals that traditional understandings about the "unive
rights are changing. During the last century universality
a notion of positive law that is external to communit
trumps local culture or takes a backseat to it. Recent edi
Our Rights and other contemporary human rights
suggest, however, that evolving notions of human right
from within cultures, in response to their needs and evol
dialogue between reformers on the ground and form
instruments.293
But how are formal law and legal institutions res
dialogue? Perhaps more important still, how should they
these questions in the next Part. Here I conclude by sum
normative conception of rights emerging on the ground
women's activism. Feminist analysis emerging in Mu
does more than offer an anti-essentialist critique sho
diverse. Feminists assert that Islam ought to be diverse.
in Muslim communities assert women's rights to contest
and to create plural and autonomous normative vision
religion. Articulating a new right to make one's ow
fundamentally challenge current legal constructions of re
While current law conceives of individuals as having the
and choose between communities, but allocates the ri
community to religious and cultural leaders, wo
communities are asserting that individual members of a
to be able to participate in this process.
292. Id. at 205-06.

293. Sally Engle Merry makes a similar observation in a recent article describing three
different approaches to gender violence in a small Hawaiian town. Merry observes that the three
approaches-one based on rights, one based on religion, and one based on indigenous
community--were strikingly different in how they defined and dealt with gender relations. At the
same time, Merry notes that all three approaches shared "similar technologies of the self' through
free will and choice. Merry's point is that local communities reflect "modern" conceptions of the
self as autonomous and rational, while imagining just societies that are not necessarily secular or
universal. Sally Engle Merry, Rights, Religion, and Community: Approaches to Violence Against
Women in the Context of Globalization, 35 LAW & SOC'Y 39, 40 (2001).
Herein lies an important contrib

international human rights. Feminists i
taking the critique of the public/privat
violence to freedom to create normative
women should have a right to exit a
another one if they want to, they should a
communities and reform them. Curre
women's desire to maintain religious an
time, a right to culture is not enough if
in making the culture. For women to as
requires a reconception of culture an
reasoned, autonomous, and democratic p
the rights-based claims of feminists wo
distinct from traditional, Western hum
Enlightenment sought freedom and e
feminists in Muslim communities
demanding autonomy and democracy in
IV. FUTURES
"Imaginations of socially just futures for humans usually take the idea
of single, homogenous, and secular historical time for granted,"
Chakrabarty writes.294 But in presuming that the world's peoples are
marching in lockstep toward a singular future,295 we elide alternatives and
blind ourselves to incisive critiques of current law and of liberalism
itself.296 Viewed as confrontation rather than as transition, the claims of
women reformers in Muslim communities offer important new takes on
traditional law and its attendant notions of cultural relativism,
multiculturalism, imposed identity, and narratives of transition. This Part
highlights these contributions by offering the normative critiques of
reformers working in Muslim communities as a theoretical road map for
piercing the veil of the New Sovereignty. More broadly, it highlights their
contributions in the hopes of illuminating the importance of shifting from

295. See Lawrence M. Friedman, Erewhon: The Coming Global Legal Order, 37 STAN. J.
INT'L L. 347, 355-56 (2001) (describing "the spread of U.S. law and U.S. lawyering abroad" as, in
part, "a matter of taste, like the spread of Coca-Cola" and explaining that "[i]t is perhaps also
sheer convenience and the fact that Americans were in the field fairly early, and because their
style of lawyering suits the needs of the international order").
296. See Bhikhu Parekh, A Varied Moral World, BOSTON REV., Oct.-Nov. 1997, at
http://bostonreview.mit.edu/br22.5/parekh.html (observing "an increasing tendency among liberals
to equate 'liberalism' and the good" and lamenting that this "prevents us from asking if liberal
principles are good and, conversely, if nonliberal principles might also be good").
an impositional to a dialogical approach in our stu

development.
The last Section in this Part shifts from theory to pract
the grave human rights problems with which this Articl
of Amina Lawal and others suffering under th
fundamentalism in religious law and culture-I consider
procedures, and prescriptions law should adopt to better ad
A. Piercing the Veil of the New Sovereignty
Read one way, campaigns for women's rights in Muslim

suggest a swift victory for the universality of human
culturally relativist arguments that cultural groups ought
allowed to continue their discriminatory ways, more
world's women assert-in the words of the United
Rapporteur on Violence Against Women, Radhika Coom
"[c]ultural diversity should be celebrated only if tho
cultural attributes are doing so voluntarily."297 Challengin
theory that Islam and the West are clashing civilizatio
fundamentals,298 the rights-based efforts of women in t
provide persuasive evidence that liberty and democra
universal appeal.299 And thus far, this is the way they hav
Thomas M. Franck's impressive history of the tr
communitarianism to individualism by "societies everywh
297. Radhika Coomaraswamy, Reinventing International Law: Wome

Rights in International Community, in DEBATING HUMAN RIGHTS: CRITIC
UNITED STATES AND ASIA 167, 181 (Peter van Ness ed., 1999).
298. Harvard's Samuel P. Huntington has led this crusade. See SAMU
THE CLASH OF CIVILIZATIONS AND THE REMAKING OF THE WORLD OR
Huntington, The Clash of Civilizations, FOREIGN AFF., Summer 1993, at
of individualism, liberalism, constitutionalism, human rights, equality, li
democracy, free markets, the separation of church and state, often hav
Islamic... cultures."). Ernest Gellner's significant work on Islamic leg
similar to Huntington's. See, e.g., ERNEST GELLNER, CONDITIONS OF LIB
AND ITS RIVALS 28-29 (1994) (describing Islam as "an absolute moral
contrast with Civil Society, lacks individualism, intellectual pluralism, an
institutions and associations); ERNEST GELLNER, POSTMODERNISM, REA
(1992) (explaining the rise of Islamic fundamentalism and critiquing postmo
299. JOEL BEININ & JOE STORK, On the Modernity, Historical Specific
Context of Political Islam, in POLITICAL ISLAM 3, 21 (Joel Beinin &
(arguing that "the 'clash of civilizations' thesis ... invokes an essentialist,
and that "Islam, like all cultural systems, is a contested field of meaning");
Not Neatly Divided, N.Y. TIMES, Nov. 23, 2001, at A39 (criticizing a "clash
of Islam and the West, which imagines uniformity within cultures and s
cultures, and arguing that such a view robs us "of our plural identities"
world"). On "Orientalism," or the West's view of Islam as "other," se
EDWARD SAID READER 171 (Moustafa Bayoumi & Andrew Rubin eds., 20
and non-Western societies"3--gains mu

activists from the Third World "have t
rights are not a set of imposed w
application, speaking to the human
Claiming Our Rights for its proposition
not in conflict with Islam.302
In another recent book, Martha C. N
years of field studies on women's ri
developing countries303 that "no argum
human being who does not desir
characterizations is the quick conclusio
the world over, is "democracy, stupid."
the West, to be specific. Nussbaum, fo
universalism that has a chance to b
must.., .be a form of political liberalis
Salman Rushdie joined the chorus, argu
take on the secular-humanist principles
Such claims reflect a familiar story
of legal consciousness, in which the
production-exporting such goodies a
and the Third World is the happy
structures.
But read another way, claims for women's human rights in Muslim
communities signify much more than a world "in transition." To be sure,
women from Muslim countries and communities embrace the universal
concepts of justice, equality, and democracy. But unlike traditional Western
lawyers, they seek to apply these concepts within explicitly religious and
cultural contexts, not in the public sphere alone. Feminists in Muslim
300. FRANCK, supra note 34, at 148.

301. Id. (quoting Rosalyn Higgins, Ten Years on the Human Rights Committee, 6 EUR. HUM.
RTS. L. REV. 570, 575 (1996)). Franck quotes Kofi Annan, the Secretary-General of the United
Nations, who characterizes "the idea that different societies and cultures view fundamental human
rights differently" as "truly demeaning... of the yearning for human dignity that resides in every
African heart." Id.
302. See id. at 120.
303. MARTHA C. NUSSBAUM, SEX AND SOCIAL JUSTICE 9 (1999) ("The universals defended
here are the fruit of many years of collaborative international work.").
304. Id. at 1.
305. Thomas L. Friedman, Today's News Quiz, N.Y. TIMES, Nov. 20, 2001, at A19 (writing
that the key to the future of Arab-Muslim states is "democracy, stupid!"); cf. Amy Chua, Markets,
Democracy, and Ethnicity: Toward a New Paradigm for Law and Development, 108 YALE L.J. 1
(1998) (complicating evolutionary theories of democratization and marketization in the context of
market-dominant ethnic minorities).
306. NUSSBAUM, supra note 303, at 9.
307. Salman Rushdie, Editorial, Yes, This Is About Islam, N.Y. TIMES, Nov. 2, 2001, at A25
(arguing that Muslim nations must restore religion to the personal, rather than the political, sphere
"in order to become modern").
communities argue that the same democratic principles th

sphere should apply within the family, culture, and re
spheres traditionally defined by Western law as priva
unregulated. This is a radical shift from traditional human
posits freedom only in secular terms.
The transition narrative explains away these diffe
women's claims are hailed for their affirmation of rights a
while differences are characterized as strategic cultural a
worse-as nostalgic,309 self-defensive,310 and "disingenuou
signs of "incomplete transition"312 or failed "legal tra
cultural accommodation view314 understands the engagem
Muslim communities with culture and religion as strategic
the "shadow"315 of fundamentalism, but without normat
view, religious discourse is just a means to an end, with t
when the transition to secular rights-that is, a proper
public and private-is complete. Presuming that religio
sphere of injustice, the transition narrative misses the new
that religion ought to be just.
Characterizing claims for rights within religion as
accommodations also indigenizes the claims, confining the
local, not global, contexts. When I presented early drafts o
308. As subaltern studies scholars describe. historicism reduces the ref

World actors to mere mimicry of the West. See HOMI BHABHA, THE LOCA
(1994) (defining "colonial mimicry" as "the desire for a reformed, re
subject of a difference that is almost the same, but not quite").
309. See CHAKRABARTY, supra note 58, at 27 (acknowledging that his
leaves him "open to the charge of nativism, nationalism-or worse, the sin o
310. Gellner describes cultural arguments as reflecting a tendency
among Muslim apologists, which ultimately creates the anomaly of "a
culture with native idioms." JOHN HUTCHINSON, THE DYNAMICS OF CULT
(1987).
311. One law professor characterized feminist readings of the Qur'an this way during a
presentation of some of the ideas in this Article.
313. See generally ALAN WATSON, LEGAL TRANSPLANTS: AN APPROACH TO COMPARATIVE
LAW (1974). For more critical explications of the "transplant" hypothesis in law-and-development
scholarship, see Pierre Legrand, The Impossibility of "Legal Transplants," 4 MAASTRICHT J.
EUR. & COMP. L. 122 (1997) (critiquing the "transplant" thesis as betraying "a political decision
to marginalize difference and correlatively to extol sameness"); and David Kennedy, The Politics
and Methods of Comparative Law 13 (n.d.) (unpublished manuscript, on file with author)
(describing differences under the transplant hypothesis as arising from "[flailed transplant efforts,
indigenous reactions against transplantation [and] intentional or accidental misreadings of
transplanted material"). Both Kennedy and Legrand note that "legal transplant" analysis is used
more often to explain similarities than differences in legal reform efforts.
314. See Legrand, supra note 313, at 122 (describing the "transplant" thesis as conceiving of
culture as an "irrational interloper" that interferes with the implementation of "objective" legal
rules); Kennedy, supra note 313, at 17 (writing that "[s]imilarities between legal phenomenon in
different locations.. . tend to be allocated to economic stages or functional necessities, while
dif]erences tend to be allocated to cultures").
315. Crossette, supra note 217.
first reaction of the audience members

good for Muslim women who have t
theocratic states!"), but that it offers li
view obscures the struggle with fund
United States is in the company of A
CEDAW.316 While conservatives in
expressed their concern about the "r
"threatens" American family value
nonetheless argue that the United State
order to help women in the Third World
real threat to women's rights is elsew
Muslim women's New Enlightenment
enlightenment in the public sphere w
century, and remains so in the twenty-firs
But far from speaking narrowly to
human rights claims emerging in the
normative critique of the New Sovere
law. Denouncing law for conceding pow
groups without engaging the dive
communities,320 activists highlight t
traditional views of religion over the cl
learn more from this claim than simply
316. See United Nations, Convention on the Eli

Against Women, Signatures and Ratifications, at
englishinternetbible/partl/chapterIV/treaty10.asp (la
317. See James Dao, Senate Panel Approves Tr
TIMES, July 31, 2002, at A3 (noting that conserva
feminist agenda on issues ranging from abortion
Ashcroft Loves Iran, NATION, July 8, 2002, at 10
distaste for CEDAW and reiterating Jesse Helms's
treaty negotiated by radical feminists with the inte
international law").
318. See Nicholas D. Kristof, Bush vs. Women, N
that CEDAW "would make no difference in Americ
in countries where discrimination means death");
Not?, N.Y. TIMES, June 18, 2002, at A23 (writing th
do with American women, who already enjoy the
"[i]nstead, it has everything to do with the half of t
until, often, death").
319. See Leti Volpp, Feminism Versus Multicul
(arguing that Western feminist obsession with th
women obscures violence and discrimination against
320. See Clara Connolly & Pragna Patel, Wome
"Race" in Women Against Fundamentalism, in WO
note 112, at 447, 447, 461 (critiquing what they call
style" emerging in British jurisprudence, and expl
Fundamentalism "rejects the politics of wha
'multiculturalism' that delivers women's futures i
leaders' by seeing these as representatives of the com
how the New Sovereignty has arisen in response to the Ne

illustrates how, in a globalizing world witnessing fr
change, law itself has become an important tool for forc
traditional communities. Simply put, "[i]n the modern da
not come naturally. Those who seek it must fight for it."3
norms such as cultural relativism and multiculturalism but
traditionalists over modernizers. Because law conceiv
fundamentalist terms, religious communities are continu
to reflect fundamentalist views.
It matters how law conceives culture and religion.
conceptions of culture and religion view both as static an
and make no conceptual space for internal change.322 In c
in the Muslim world suggest that in the twenty-first ce
normative theory of cultural change that allows ind
imagining autonomous and egalitarian lives outsi
bureaucratic freedom of traditional liberalism. The fear is that without a
discourse that allows women to choose freedom within a context of faith,
reactionary impulses will win out over progressive ones. That is, as
freedom and the future become associated only with the bureaucratic West,
many in the Muslim world seek to maintain their religious identity in what
appears to be the only place remaining-the past.323
In contrast, reformers with a dynamic and historically contingent
understanding of religion question the authenticity of "traditional" laws,
which are often the products of either internal power politics or colonialism.
Indian principalities, for example, generally had uniform laws governing all
aspects of life until British rule. The British established separate "personal
laws" governing family life and property inheritance for each religious
community, while creating a national system of commercial and criminal
321. Sunder, supra note 33, at 501.

322. For some recent, thoughtful attempts to retheorize multiculturalism, see JACOB T. LEVY,
THE MULTICULTURALISM OF FEAR 52 (2000) (arguing for a new understanding of
multiculturalism that offers "no cultural shield to protect violent and cruel internal practices");
AYELET SHACHAR, MULTICULTURAL JURISDICTIONS: CULTURAL DIFFERENCES AND WOMEN'S
RIGHTS 5-8 (2001) (arguing for "joint governance" of cultural communities between local leaders
and the state in order to protect internal minorities' rights, particularly the rights of women); and
Iris Marion Young, Two Concepts of Self-Determination, in HUMAN RIGHTS: CONCEPTS,
CONTESTS, CONTINGENCIES, supra note 56, at 25 (arguing for a revised understanding of self-
determination from noninterference to nondomination, whereby minorities may enjoy a separate
existence so long as there is no internal domination). On cultural relativism, see SATYA P.
MOHANTY, LITERARY THEORY AND THE CLAIMS OF HISTORY: POSTMODERNISM, OBJECTIVITY,
AND MULTICULTURAL POLITICS (1997).
323. See M.H.A. Reisman, Islamic Fundamentalism and Its Impact on International Law and
Politics, in RELIGION AND INTERNATIONAL LAW, supra note 44, at 357, 364 ("The future was
hopelessly penetrated by non-Islamic elements, while the past remained pure. To maintain their
identity, Moslem leaders became backward-looking.").
law.324 Thus, postcolonial studi

noninterference on which cultural relativism and multiculturalism are
based. As Lila Abu-Lughod writes, "[I]t is too late not to interfere. The
forms of lives we find around the world are already products of long
histories of interactions."325
Today, both Western feminism and religious fundamentalism are
competing to define women's identity-the former as secular and free, the
latter on religious leaders' terms.326 But as I have sought to show, women
increasingly reject these options, choosing a third way that seeks identity on
more enlightened terms. This activism suggests that the central question of
the new century will not be individualism or identity, but rather who has the
power to define identity.327 Despite increasing skepticism in the academy
about the possibilities for freedom within identity,328 women's human rights
reformers in Muslim communities are not rejecting identity, but calling for
the right to reconstruct it.329
In short, advocacy for women's rights in the Muslim world signals a
fundamental change in the conception of identity itself. While traditional
human rights to identity presume that identity will be imposed within
groups (albeit freely chosen from among groups), the activists I have
highlighted here seek to expand choice within identity groups. This claim
presupposes not only that identity groups are internally plural, but that they
324. See Nussbaum, supra note 140, at 40 (explaining that the current "decentralized
situation dates back to the Raj, when the British codified commercial and criminal law for the
nation as a whole, but, in the spirit of divide and rule, encouraged the maintenance of separate
spheres of civil law in non-commercial areas"); see also KNOP, supra note 47, at 364 (describing
how indigenous women in Canada revealed that the Canadian Indian Act codified "not indigenous
customs" as claimed, "but European patriarchy").
325. Abu-Lughod, supra note 19, at 786-87.
326. See Minoo Moallem, Transnationalism, Feminism, and Fundamentalism, in WOMEN,
GENDER, RELIGION: A READER, supra note 112, at 119, 120 ("Feminisms and fundamentalisms
are now competing global forces, both attempting to find means to control the mechanism of
cultural representation.").
327. As Cornel West writes:
The crucial intellectual battles of the day... are no longer over Truth but rather over
the production of truths-and this truth-production is a fully historical and political
affair. That is, we do not passively accept the Truth from a static past, but rather we
contribute to the creation of new truths by reinterpreting old truths of dynamic
traditions in light of new circumstances and challenges.
Cornel West, Faith, Struggle, and Reality, 45 CHRISTIANITY & CRISIS 400, 401 (1985).
328. See, e.g., PAUL GILROY, AGAINST RACE: IMAGINING POLITICAL CULTURE BEYOND THE
COLOR LINE (2000); K. Anthony Appiah, Identity, Authenticity, Survival: Multicultural Societies
and Social Reproduction, in MULTICULTURALISM 149, 162-63 (Amy Gutmann ed., 1994) (asking
whether, if we take autonomy seriously, identity does not replace "one kind of tyranny with
another"); Janet E. Halley, Culture Constrains, in Is MULTICULTURALISM BAD FOR WOMEN?,
supra note 9, at 100, 103-04.
329. In this sense women's strategies reflect the view of West, who writes that identity
politics, "on the one hand, are inescapable and, on the other hand, still too limited." CORNEL
WEST, Christian Love and Heterosexism, in THE CORNEL WEST READER, supra note 90, at 401,
407.
should be, in order to allow individuals more room

membership in the group-from the traditional end of t
radical.330
Finally, although a transition narrative would e
religion-based claims as a remnant of the past, Muslim w
a far cry from nostalgic. Critically engaging religion,
ground are taking seriously the claims and desires of mo
in so doing, offer the possibility for futures in whic
imagined both within and without faith.331 What is mo
human rights in Muslim communities challenge the li
view of law and history implicit in transition narratives.
contextual, contingent, and dynamic model of legal hist
women's human rights in Muslim communities illus
process resembling what Reva Siegel describes as "pres
transformation."332 In this view, the legal system does n
in the service of "rights" and "justice," but rather, is con
status quo interests against change.333 In the present cont
create a sphere of enlightenment in the public realm, bu
and traditionalists take advantage of this liberal compro
define more of life's activities as belonging to the pr
reformers in Muslim communities that this Article high
confronting the traditional transition theories of law and
made this cooptation possible. Keeping their eye on the p
and strategies emerge from efforts to attain freedom an
in new and expansive ways.
330. See Henry J. Steiner, Ideals and Counter-Ideals in the Struggle o

for Minorities, 66 NOTRE DAME L. REV. 1539, 1553-54 (1991) (expre
current conception of group autonomy does not, but ought to, prov
empowered "to decide whether to remain on one side of a cultural bounda
side, or to seek a life not committed to one or the other communit
Advancing the Freedom of Religion or Belief Through the UN Declarati
Religious Intolerance and Discrimination, 82 AM. J. INT'L L. 487, 488 (1
notion of intolerance only applies between religious groups and not within
331. As West writes, "The major contribution religious revivals can mak
demand that Marxist thinkers and activists take seriously the culture o
supra note 112, at 378. West denounces the Left, which he claims has
oppressed peoples while having "little understanding and appreciation
people." Id. The Enlightenment legacy, he argues, led to the Left's "in
capacities of oppressed peoples to create cultural products of value." Id.
332. Reva Siegel, Why Equal Protection No Longer Protects: The Evol
Enforcing State Action, 49 STAN. L. REV. 1111, 1113 (1997) ("Efforts to
bring about changes in its rule structure and justificatory rhetoric ... .").
333. See id. ("The ways in which the legal system enforces social str
and evolve over time.").
B. Operationalizing the New Enlightenm
As my grandmother, a physics profes

dynamic world, one cannot be static." J
reconsider our old understandings of
legal tradition of religious sovereignty.
change, law must adapt so that the origi
prevail. Substantive cultural change
narratives that posit the old Enlightenme
one as an anachronism.334 Today, in
religious and cultural contexts.35 In pur
only new strategies for maintaining old
imagining socially just futures, where
possible in all aspects of our lives.336
Thus far, I have argued that law has b
New Enlightenment. In this final Sectio
What might law do instead? Ought law m
out of internal religious conflict, thereb
in the backlash projects of traditionalist
private coercion work things out)? Or s
claims based on a different set of norm
the New Enlightenment rather than
rethink its procedures and prescriptions
Thin rules-such as a right of exit or th
sphere-sufficed to fulfill Enlightenmen
and demand more. I do not offer any si
as one that states that equality norms sh
or a rule that would prohibit perso
altogether in favor of a uniform pu
334. As Kennedy explains, we have a problem wh

prohibit us from seeing the new problems and solutio
The movement's Western liberal origins bec
particular difficulties general to the liberal traditi
movement. When, for example, the global expr
human rights terms narrows humanity's apprecia
they have taken in the nineteenth- and twentieth-ce
Kennedy, supra note 14, at 114.
335. See Rodney Stark, Rationality, in GUIDE TO
at 239, 239-44 (advocating rationality within religiou
336. See 'ABDOLKARIM SOROUSH, Tolerance and
Democracy, in REASON, FREEDOM & DEMOCR
'ABDOLKARIM SOROUSH 131, 135 (Mahmoud Sadr
that democracy does not require traditional secula
truly violates democracy is not embracing a faith
punishment of disbelief' (emphasis added)). On con
from secular intellectuals to "modern Muslim activ
JOHN O. VOLL, MAKERS OF CONTEMPORARY ISLAM
themselves "thin" in that they fail to recognize a central

Enlightenment-that women ought to be able to have equal
the context of religion or community.
Rather, I offer here a set of procedures and principles,
larger vision of a New Enlightenment, that would all
decisionmakers to operationalize this New Enlightenment.
1. Passive Proceduralism
This prescription would require legal decisionmakers (for example,

judges, national lawmakers, international human rights treaty-making
participants, and United Nations and regional human rights committees) to
recognize that religions are dynamic communities, whose norms are in a
state of constant negotiation-and that the law impedes this dynamism
(usually in favor of powerful members of the community) whenever it
imposes upon religious communities a static, top-down vision of what that
community is.337 In light of this reality, legal decisionmakers would cease
privileging the norms of religious elites and would instead place elites and
dissenters on an equal footing-but only when a specific dispute is brought
before a decisionmaker. This approach is procedural insofar as it requires
that all members of a community are represented before the courts,
legislatures, and human rights bodies. Merely acknowledging an internal
diversity of interests-when such diversity actually exists-may help
decisionmakers to become less complicit in backlash efforts on behalf of
the status quo. Furthermore, a finding of diverse claims about the meaning
of membership may ultimately lead decisionmakers to refuse to enforce
strict rights to exclude from the normative community based on claims of
inauthenticity, thus making the communities themselves more
accommodating of difference and pluralism.
Revisiting the cases in point that I highlighted in Section II.D may be
helpful in illustrating this approach. In each of those cases-women
protesting their countries' religious and culture-based reservations to
CEDAW, Muslim women seeking to reform personal laws in India,
religious women challenging sex discrimination in the United States, tribal
women striving for gender equality within the tribe in the United States,
and African women seeking reform of discriminatory customary laws-the
primary fault of legal decisionmakers at both the international and national
337. This is Robert Cover's argument. Cover recognized that law is more often jurispathic-
killing off the "law" offered by dissenters-than jurisgenerative. See Robert M. Cover, The
Supreme Court, 1982 Term-Foreword: Nomos and Narrative, 97 HARV. L. REV. 4, 53 (1982)
(famously writing: "Judges are people of violence. Because of the violence they command, judges
characteristically do not create law, but kill it. Theirs is the jurispathic office. Confronting the
luxuriant growth of a hundred legal traditions, they assert that this one is law and destroy or try to
destroy the rest.").
levels has been a failure to acknowledge

more equality within their religious an
right to define the group's norms. In
currently practice a policy of deferenc
absolute authority to define the norms
proceduralism I suggest here woul
recognize multiple claims to define c
would prevent law from being coopted
allow for the proliferation of greater di
each group.
To be sure, this approach only facilitates the substantive goals of the
New Enlightenment-freedom and equality within normative
communities-to the extent that such claims are actually made before legal
decisionmakers. In many cases, communities may lack serious dissent; in
the next Subsection, I consider law's role in facilitating internal dissent and
individual capabilities for participating in the processes of cultural
meaning-making. But the question of how much dissent is necessary to
warrant legal recognition remains. Certainly, the extent of dissent within a
community will also turn on the opportunity for dissent. But assuming
ample opportunity to dissent, what is the procedural obligation to recognize
a small dissenting minority-say, two out of a hundred? Again, recognition
of even this small group of dissenters' claims would descriptively
acknowledge that the group is not, in fact, homogeneous. But recognition of
these dissenters' claims also implicates some of the more substantive goals
of the New Enlightenment-namely, that individuals have a right to dissent
and be different within normative spaces. Recognizing the existence of
difference-no matter how little-would make it more difficult to legally
impose conformity and repress autonomy.
As anemic as the passive proceduralist approach may seem on one
level, it acquires some vigor in that religious groups are increasingly
seeking refuge in the law from internal voices of modernization and dissent.
Today, we see cultural groups increasingly turning to law to help forcefully
preserve traditional communities. In the face of such preservationist
movements, the law should acknowledge the dynamic nature of religious
communities and block the efforts of religious elites who would lock in
their privileged status quo in the name of religious tradition. Yet the voice
of dissent would have to originate from within a religious community. In
these cases, law would merely recognize that dissent and would thereby
empower the subaltern to speak.
2. Robust Proceduralism
The passive proceduralist approach merely asks lawmakers to respond

to claims brought before them. But this approach presumes that women and
other disempowered individuals within communities have the knowledge or
strength to question their leaders and to demand cultural change. In order to
empower the subaltern to speak, the state must take an affirmative role in
promoting discourse and in ensuring that women are given access to
educational and economic opportunities so that they will have the critical
tools to challenge received norms and to make the world their own. For
example, the state may encourage more networking efforts similar to those
pioneered by NGOs such as WLUML (by, for example, guaranteeing their
ability to operate without interference within its borders), and more on-the-
ground education, empowerment, and consciousness raising such as that
facilitated by human rights manuals like Claiming Our Rights. Or a state
may go as far as ensuring women equal access to educational and religious
institutions at all levels, and access to unregulated global media and
technologies, such as the Internet.38 At either end of the spectrum, this
approach, too, is procedural in that it requires law to empower previously
marginalized voices to participate in the processes of cultural meaning-
making. But it is more robust in that it envisions an affirmative role for the
state in shaping a more broadly educated and represented cultural citizenry.
Robust proceduralism would also require a state to protect cultural
dissenters from suppression, harassment, and violence. In this Article, I
have mostly spoken about cultural dissent as an unmitigated good; I have
tried to highlight the powerful, dissenting voices of Muslim women that
have too often been ignored. But my championing of such efforts is not
naive. On a daily basis, these women risk their lives in order to claim their
rights to religion and equality. To be sure, dissent is a very dangerous
proposition. Thus, any state that seeks to foster such dissent must
acknowledge the need to provide for legal mechanisms to protect women
and other dissenters against violent backlash. This protection would take
many forms. Just as in the United States where the First Amendment
recognizes the need to protect unpopular speakers from being silenced by
the state, states should also recognize free speech rights within private,
normative groups.339 Women dissenters, in particular, may be vulnerable to
suppression by more violent means, including sexual harassment and
338. See Madhavi Sunder, Intellectual Property and Identity Politics: Playing with Fire, 4 J.
GENDER RACE & JUST. 69, 94 (2000) (arguing against national laws that would limit access to
global media and technology in order to promote cultural survival).
339. I make this argument elsewhere. See Sunder, supra note 33, at 562 (arguing for a "right
to speak and to challenge oppressive cultural norms and practices" from within a cultural
association).
rape.340 Indeed, women in all contex

rights agents to dissenting women i
violence aimed at silencing their spee
employing change-agents to pursue soci
proceduralism would require that the st
those who use violence to suppress cultu
3. Substantive Prescriptions
While the case of the small minority

more substantive goals, the case of t
who seek more repression, not more f
issues. In this case, operationalizing
making substantive legal judgmen
judgments may be perfectly consistent
required by the old Enlightenment. Re
religious sovereignty is based on a n
Enlightenment-freedom in the public
argued in this Article for a new nor
groundwork of women's human righ
more expansive understanding of freed
and private spaces, namely within n
communities. Thus, just as Enligh
decisionmakers to reject legal claims to
too would New Enlightenment norms
private sphere.
Some may read my Article as a cal
activist role for international law in wh
communities to enforce norms of in
might mean, for example, compelli
Shari'a to the Universal Declaration
340. I have written about a path-breaking sexua

sponsored social worker was subjected to sexua
response to her efforts to educate women and men
marriages. Her tragedy became a test case in Indi
harassment as an employment hazard, particular
Madhavi Sunder, In a "Fragile Space": Sexual H
Feminism, 18 LAW & POL'Y 419, 425 (1996) (d
harassment-including gang rape-is a tool for con
delicate but real work of constructing national and
341. See id. at 428-33 (highlighting interviews
from all over India working in a variety of fields).
342. The Indian Supreme Court has held that s
Rajasthan, A.I.R. 1997 S.C. 3011 (outlining nati
against workplace sexual harassment).
conform its stance on abortion and birth control to the strictures of

CEDAW. But this would be taking my argument too far.
That said, I suspect that cultural dissent is more often the rule than the
exception-that is, that dissenting voices within cultures are omnipresent. I
am often asked, for example, whether the prescriptions I offer here would
require substantive intervention with respect to the Hmong immigrant
community in the United States, which has attained notoriety for its
ostensibly traditional practice of "marriage by capture" or "marriage by
abduction."343 The questioners almost always presume that Hmong
immigrants uniformly accept and defend this practice.'3" But as Bill Ong
Hing has exposed through first-hand research among immigrant Hmong
youth, many Hmong-Americans dissent from such traditions. Indeed, Hing
finds his interviewees are committed to maintaining and fostering their
cultural identity, but are less than reverent about how they do so. They
"sense an obligation to learn about and perpetuate their culture [but] want to
do so on their own terms."345 Similarly, returning to the case of Amina
Lawal, many within Nigeria contest the rise of strict, Shari'a law in that
country.346
My point is that while questions about substantive intervention in cases
of no cultural dissent may be sound in theory, I do not think that they
represent a very common problem in fact.347 In most cases, individuals are
challenging oppressive cultural and religious norms and appealing to legal
authorities to hear their case. But legal authorities are rejecting their claims
at present, paradoxically protecting religious elites against rumblings for
change and modernity. In this sense, this Article agrees with scholars such
343. Deirdre Evans-Pritchard & Alison Dundes Renteln, The Interpretation and Distortion of
Culture: A Hmong "Marriage by Capture" Case in Fresno, California, 4 S. CAL. INTERDISC. L.J.
1, 14 (1994) (describing such practices as involving a Hmong male's kidnapping of a woman
against her will, intending that she become his bride-where this custom is recognized, he will
obtain the sanction of both his and her family for their marriage at a later date).
344. Cf id. at 14-16 (describing this practice as only one among many marriage practices in
Hmong culture, with some allowing a woman much greater choice in the selection of a marriage
partner). Evans-Pritchard and Renteln critique the use of a "cultural defense" in such cases
because this approach all too often presents "a single uniform version of a marriage practice,"
despite contest within a culture over such practices. Id. at 21. The writers highlight that many
cases involved claims by Hmong women in the United States, including a prospective bride and
her mother, who appealed to American authorities not to recognize such marriages. Id. at 16.
345. Bill Ong Hing, Refugee Policy and Cultural Identity: In the Voice of Hmong and Iu
Mien Young Adults 48, 50 (Jan. 16, 2002) (unpublished manuscript, on file with author)
(describing young Hmong women, in particular, as "embracing gender equality" in the self-
conscious process of forming their cultural identity).
346. See supra notes 168-170 and accompanying text; see also Janine di Giovanni, Divine
Injustice, TIMES (London), Nov. 30, 2002, at 24 (chronicling protests against Lawal's stoning
sentence by Nigerian feminist organization, Baobab).
347. In the rare case of no cultural dissent, I do not, at this time, propose further substantive
intervention on the basis of my theory. Indeed, such cases are beyond the scope of my proposals,
which are not intended to cover comprehensively each and every instance of injustice in the
private sphere.
as Franck and Nussbaum that people,

equality. I diverge from them in th
traditional liberalism, women and m
within private, cultural spaces as we
women are reimagining traditional, lib
in thicker, richer ways. For law to leav
past elides their claims, and their impo
can and should operationalize the N
recognizing diverse ways of imagining
CONCLUSION
Just as the eighteenth-century public acquired its Enlightenment less

from philosophers than through the work of philosophes-"'populizers'"
such as "journalists, men of letters, the bright young talkers of the
salons"348--the twenty-first century public is acquiring a New
Enlightenment from the real-world activists of the transnational human
rights movement. Forging ahead of both anthropological and legal theorists,
the international human rights reformers working within a Muslim context
are challenging traditional understandings of both religion and international
law as imposed, and advocating instead a right to question, critique, and
indeed, recreate normative communities for themselves. Contrary to their
popular image as either slaves to tradition or naive champions of it,
reformers in Muslim communities are doing the hard work of reimagining
the present and future. Yet, we are ignoring it.349 By continuing to read their
actions within a meta-narrative of transition, we reduce their agency to
mere mimicry of the West, or we write off their commitment to religion and
difference as a relic of the past. Having no context for conceiving the
presence of religion and equality, we discount as conservative or ignore
completely the radically new frameworks for human rights they are
building. In short, Muslim women are producing a new legal consciousness
but there is static on the receiving end.
348. See Crane Brinton, Enlightenment, in 2 THE ENCYCLOPEDIA OF PHILOSOPHY 519, 519
(Paul Edwards et al. eds., 1972). Crane Brinton is the former President of the American Historical
Association.
349. For example, in an editorial on the importance of internal dialogue within religious
communities, Thomas Friedman contended that while "Christianity and Judaism struggled with
this issue for centuries... a similar internal struggle within Islam to re-examine its texts and
articulate a path for how one can accept pluralism and modernity--and still be a passionate,
devout Muslim-has not surfaced in any serious way." Thomas L. Friedman, Editorial, The Real
War, N.Y. TIMES, Nov. 27, 2001, at A19. That same day, on the pages of Friedman's paper,
another writer argued that Afghan women "have already shown their determination to create
change from within," stressing that "Western organizations can be more effective in helping
women if they ground their support in the positions of Muslim feminists." Rina Amiri, Editorial,
Muslim Women as Symbols--and Pawns, N.Y. TIMES, Nov. 27, 2001, at A19.
In critiquing international law's transition narrative, I do

call for a return to the past of religious Empire. Ra
international law to think beyond the old Enlightenment to
the twenty-first century, new theories and normative dema
guide our laws to guaranteeing more freedom, not
Enlightenment does not reject the old one, but rather take
demanding reason and rights within normative as w
community. This requires piercing the veil that pro
authoritarianism from the processes of justice. For interna
truly modern, it must begin to confront its own traditions.
350. In this sense I agree with Habermas that "the defects of the Enlight
made good by further enlightenment." Thomas McCarthy, Introduction to HA
65, at vii, xvii.

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Piercing the Veil

INTRODUCTION ................................................................................... 1401

I. GROUNDWORK ..................................... 1407

II. TRANSITION ....................................... 1415

A. Law 's "Past".......................... ..........................

t Professor, University of California, Davis, School of Law. J.D. 1997, Stanfo

2. Personal Laws (India) ..................................... 1427

III. CONFRONTATION ................. ......... ....................... 1433

4. Reconstructivism ................................................................. 1449

IV. FUTURES ........ .............................................................. ............... 1457

CONCLUSION ........................................ 1471

The failure of the international community to intervene in Afghanistan

education,4 healthcare,5 work,6 and movement.7 But war

http://www.phrusa.org/research/health_effects/exec.html (last visited Jan. 29, 2003). For the texts

9. See, e.g., Susan Moller Okin, Is Multiculturalism Bad for Women?, in Is

internally contested, heterogeneous, an

11. See, e.g., MICHAEL M.J. FISCHER & MEHDI A

activists are asserting a right to confront oppressive

This is nothing less than a question of

23. See Beena Sarwar, Brutality Cloaked as Traditio

authority against claims for change and modernity ar

this title as a legal term of art. Simply

A. The New Sovereignty

women's human rights are being consistently underm

"individuals within a community [who

35. Sunder, supra note 33, at 498.

religious community from modernity and chan

B. The New Enlightenment

Women activists working in Muslim communities on

entails either leaving one's community

(arguing that "the tradition of human rights [should] take

communities increasingly refuse to choose between rel

the absolute sovereignty of the private s

54. See Hernrndez-Truyol, supra note 31, at 32 (d

means to become "a European."58 In the historicist view

Under the historicist view, the continuing commitment of Muslim

58. DIPESH CHAKRABARTY, PROVINCIALIZING EUROPE 33 (2000).

story. The transition narrative does not

International law ceremoniously recounts its birth in 1648.65 This date

Where the final end was the attainment of Truth, philo

69. See FRANK E. MANUEL, THE AGE OF REASON 32 (1951) (describi

away from religion and natural law76 to

public sphere alone, even if individuals lacked the sam

system was premised upon closure. Reli

90. Thomas Paine wrote that "[r]eason is the for

science would satisfy individuals' material needs, re

C. Constructing and Obstructing

Revisiting law's story reveals not only how law has ob

99. See, e.g., PAUL TILLICH, WHAT IS RELIGION? 60 (James L. Adam

active role in defending a particular concept

104. For a similar argument about the movement from s

to public debate.108 Michael McConnell, for exa

108. See Noah Feldman, From Liberty to Equality: The Transform

actors have been influenced by Enlighte

Braun & Russell T. McCutcheon eds., 2000) (critiquing

involve faith," Parekh admits, "but it is not a matter of fa

is a wholly false reading of religion. No religion is or can be wholly div

about the internal political dimensions of