Sex, Culture, and Justice: The Limits of Choice (23 page)

This case is important because it illustrates a general problem with Shachar’s approach. Many of the injustices that she identifies are not injustices because women are treated particularly badly within an oth- erwise acceptable framework of multicultural accommodation. They are injustices that arise from the simple fact of allowing cultural groups to deviate from the general rights and duties of liberal citizenship so as to provide their members with special benefits or encumber them with special restrictions. Securing gender equality within the context of multicultural legislative particularity does not in itself render such particularity just.
If
there is to be legislative particularity, it must—on this I agree with Shachar—be internally gender-equal. But it does not follow that gender equality, or equality more generally, is compatible with such particularity.

Why, then, does Shachar advocate some form of multiculturalism despite its frequent injustices? What are her arguments in favor of

59. Ibid.
,
19.

multicultural accommodation? To a large extent, these take the form of the rejection of what she calls ‘‘the ‘re-universalized citizenship’ po- sition’’
60
epitomized by Susan Moller Okin.
61
This position ‘‘concludes that if diverse societies wish to achieve greater gender equality, then they should completely abolish minority group practices which do not adhere to the state’s legal norms, or else they should require these practices to ‘transcend’ themselves to such an extent that they practi- cally conform to the norms and perceptions of the majority communi- ties.’’
62
Since this broad definition could apply to my approach, Sha- char’s objections to it are relevant to the argument of this book. However, she offers only two categories of criticism, both of which apply to the specifics of Okin’s brief (sixteen-page) essay and do not apply to all attempts to (re-)universalize citizenship. First, Shachar charges that Okin’s account is based on ‘‘sweeping generalizations’’ about cultural patriarchy that do not take account of the fact of cultural diversity and change.
63
Regardless of whether Okin is guilty as charged, the charge is irrelevant to the theoretical position of reuniversalized citizenship:
to the extent that
cultural practices are patriarchal, they are problematic, and
to the extent that
those practices are not being changed by the culture in question, the state needs to step in.

Second, Shachar criticizes Okin for, in effect, ignoring the fact of social construction. Shachar writes: ‘‘[Okin] provides a very unsatisfac- tory account of why so many women participate in traditions that are to their distinct disadvantage (compared to other group members). . . . [P]erhaps the most crucial consideration Okin ignores is that women will stay in minority groups because they have no real alternatives.’’
64
Although Shachar does not elaborate on these problems, or discuss the concept of social construction, these two points effectively mirror the two features of social construction that I have discussed in this book: the construction of subjects and their desires, and of social norms and the options that are available.

Shachar concludes that the reuniversalized citizenship approach is untenable because it forces women to choose between their culture and their equal citizenship, denying them the option of both. Such

60. Ibid.
,
64.

1. Okin, ‘‘Is Multiculturalism Bad for Women?’’
   

2. Shachar,
   Multicultural Jurisdictions,
   65. 63. Ibid.
   ,
   65–66.
   

64. Ibid.
,
67.

disadvantaged individuals will, she argues, face a ‘‘wrenching decision’’ as to which aspect of their identity they wish to uphold.
65
This criticism is odd coming from Shachar, since her own approach requires individ- uals to decide whether to submit to the jurisdiction of the state or the group on a particular issue. However, this criticism does not apply to my approach since I do not make universal citizenship available to women if and only if they choose to abandon their culture. Instead, the equality tribunal precisely opens to women the option of having their equality respected while staying within their group, unlike approaches such as Barry’s, which rely on freedom of exit and thus do require individuals to make wrenching decisions. As a result, if the culture is to survive at all, it must be in a modified form that enables
all
individu- als to participate in it in conditions of equality, rather than requiring some individuals and not others to choose between that equality and their culture. Such a consequence is, moreover,
advocated
by Shachar as a beneficial feature of her own proposals. She writes: ‘‘If group lead- ers fail to act appropriately [by reforming discriminatory practices], not only do they lose some of their power (because of the smaller base of supporters they now have); the collective also stands to lose because of the risk that it no longer controls key identity-defining sub-matters.’’
66
Shachar’s criticisms of the reuniversalized citizenship approach do not, therefore, affect my approach. Moreover, her criticisms of multi- cultural accommodation are much stronger than her arguments in favor of its partial adoption. As such, several of her proposals are prob- lematic because they accord too much weight to multicultural particu- larity, as becomes clear when considering her jurisdictional proposals. One of the strengths of Shachar’s work, in the context of this book,

is that it proposes specific legislative and jurisdictional arrangements. As these are different from my own, but share the desire to emancipate women and other vulnerable individuals from the paradox of multicul- tural vulnerability, they merit consideration. Shachar proceeds through rejection of six alternative models of governance. First, she rejects both ‘‘secular absolutism’’ and ‘‘religious particularism’’—the extremes of the ‘‘either/or’’ dilemma just discussed. Then she rejects four alterna- tive models of joint governance which, she argues, do overcome the ‘‘either/or’’ dilemma, but each of which is separately problematic.

65. Ibid.
,
68. 66. Ibid.
,
141.

These four models are described as different forms of accommodation: ‘‘federal-style,’’ ‘‘temporal,’’ ‘‘ consensual,’’ and ‘‘contingent.’’ Finally, Shachar advocates her own model of joint governance, which she labels ‘‘transformative accommodation.’’
67

It is beyond the scope of this discussion to consider Shachar’s argu- ments concerning each of these models of governance in detail. Her rejection of secular absolutism has, in effect, already been dealt with, since she deploys the same criticisms here as against reuniversalized citizenship. I agree with many of her other points—particularly those highlighting the flaws in religious particularism and in the four alter- native models of joint governance. In what follows, then, I consider only Shachar’s arguments in favor of her own transformative accom- modation.

The essence of transformative accommodation is that authority should be divided between the state and the group in such a way that both have jurisdiction over some aspect of a particular area of law, such as family law or criminal law, and neither has jurisdiction over the area in its entirety. Shachar calls these aspects sub-matters. The idea is that all sub-matters need to be addressed if a legal decision is to be reached, but because jurisdiction over the sub-matters is split between the state and the group, any decision must be the result of a compromise be- tween them.
68
In the area of family law, for example, Shachar argues that the group should have jurisdiction over the sub-matter of demarca- tion—determining the conditions under which couples may marry and divorce, and the conditions of membership of the group—with the state having jurisdiction over the sub-matter of distribution— determining how resources should be distributed on divorce and be- tween families.
69
The aim is to limit the power of both the state and the group, and thereby to minimize conflict. As Shachar puts it: ‘‘Even when both jurisdictions can furnish strong arguments for laying exclu- sive claim to the norms and procedures governing each individual, a single cohesive system of checks and balances guarantees that neither the state nor the group is enabled to govern alone. Both the state and the group are consequently forced to abandon their perfectionist and maximalist jurisdictional aspirations, which are so often the source of

67. Ibid., chaps. 4, 5, and 6. 68. Ibid.
,
119.

69. Ibid.
,
132.

conflict.’’
70
One problem immediately arises. Shachar insists on ‘‘the ‘no-monopoly’ rule,’’ according to which ‘‘neither the group nor the state can
ever
acquire exclusive control over a contested social arena that affects individuals both as group members and as citizens,’’
71
and gives ‘‘family law, education, resource development, immigration, and criminal justice’’
72
as examples of such social arenas. She does not ex- plain, however, which will be considered as the relevant group to gov- ern any particular individual. Moreover, Shachar insists that transform- ative accommodation relies on the key assumption that individuals ‘‘represent the intersection of multiple identity-creating affiliations.’’
73
Given that, on her account, individuals are affiliated to many groups, which one should count legally? Should a Jew by descent who is a believer in Islam be governed by Jewish or Muslim law? What, given the no-monopoly rule, happens to those individuals (atheists, libertari- ans, comprehensive liberals?) who wish to be bound to no group? Should a Jewish atheist be governed by Jewish jurisdiction, or may she remove herself to the monopolistic rule of the state?

Assume, however, that this problem can be overcome and that, con- trary to Shachar’s own account, each individual can be unproblemati- cally assigned to the jurisdiction of one and only one group in addition to the state. There remain several serious problems with Shachar’s ap- proach. First, it is unclear in what interests or according to which prin- ciples the state (as opposed to the group) is supposed to govern, and therefore on what basis individuals owe political obligation to the state. Presumably the state is not supposed to articulate the interests of any particular group, since that would replicate the supposed bias of non- multicultural accounts. According to Shachar, ‘‘Both the group and the state have normatively and legally justifiable interests in shaping the rules that govern behavior,’’
74
but it is not clear why. The state’s juris- diction cannot purely be based on justice, with political obligation to the state deriving from a natural duty to do justice. For a natural duty account of political obligation accords normative weight to whichever laws are just, regardless of where they originate, and so could give no

70. Ibid.
,
143.

71. Ibid.
,
121; emphasis added. 72. Ibid.
,
121 n. 8.

73. Ibid.
,
118.

1. Ibid.
   

   grounds for the separate jurisdictional authority of sub-state groups or the deviation of their laws from the justice-embodying state law.
   75
   

   The state cannot, then, be acting in the interests of objective, univer- sal justice, since that would render group particularism at best unnec- essary and at worst unjust. On what, then, does the state base its laws? In talking of the state Shachar tends to construe it as a monolithic wielder of power to be tamed, and does not explain why the state is needed at all and what it ought to do. For example, she argues: ‘‘At the negotiation stage . . . [s]ince the state is the more powerful entity, the presumption in the negotiations must be in favor of the group.’’
   76
   This is to imply that there is no legitimacy to the state’s claims. However, if the state is a liberal state charged with implementing justice, there ought to be a presumption in favor of it by definition.
   

1. Indeed, it is unclear what the role of justice is in Shachar’s account as a whole. Her argument cannot be that the combination of laws of- fered by the state and the group, considered as an
   ensemble,
   will bring about justice, since the precise combination of laws to be obeyed differs from person to person and the laws enforced differ from group to group. Moreover, it is problematic from the point of view of egalitarian justice to endorse a system of justice that is unequally binding on indi- viduals.
   77
   Finally, it appears in parts of Shachar’s argument that the state
   is
   charged with enforcing laws based on considerations of justice, since she looks to the state to provide remedies for individuals who suffer from unjust group laws. But if the state epitomizes justice and the group deviates from justice, why endorse group laws in the first place? If it is unjust for divorce to rely on male consent, for example, why allow any group to implement such a law?
   

   The way in which Shachar’s approach deals with unjust group law is by allowing individuals to opt out of their group’s jurisdiction and look to the state (and vice versa) in certain circumstances. However, this solution is problematic, not least because it is unclear precisely which circumstances qualify. Shachar explains that, under her propos- als, individuals have
   

2. The sort of theory that I have in mind here is developed in Jeremy Waldron, ‘‘Special Ties and Natural Duties,’’ and John Rawls,
   A Theory of Justice,
   chap. 6.
   

3. Shachar,
   Multicultural Jurisdictions,
   129.
   

4. Seyla Benhabib makes a similar point, arguing that transformative accommodation undermines equality before the law, in
   The Claims of Culture,
   129.
   

   the ultimate power to determine whether to ‘‘switch’’ their ju- risdictional loyalty from the original power-holder to the rival power-holder . . . on an issue-by-issue basis. . . . [But t]he pur- pose is not to fracture group solidarity so that members can opt out at the slightest opportunity. The initial division of authority between group and state must still remain meaningful and presumptively binding on its individual members. ‘‘Opting out’’ is justified only when the relevant power-holder has failed to provide remedies to the plight of the individual; only then can the individual instigate a fair claim against that authority.
   78
   

   As an aside, it is unclear to what extent this provision is compatible with the no-monopoly rule and whether there are limits on the number of issues that an individual may opt out on. More substantively, Sha- char gives no clear guidance as to what constitutes acceptable grounds for opting out. The vague concept of failing to provide remedy is re- peated several times, sometimes amplified by the term ‘‘meaningful remedy.’’
   79
   But there is no indication as to how a failure to provide a remedy is defined.
   

   Imagine, for example, a case in which the wife but not the husband wishes to divorce. The jurisdiction of the group (perhaps the group is Orthodox Jewish) states that the husband’s consent is required for di- vorce and thus that no divorce can be granted. The jurisdiction of the state declares that the husband’s consent is not required (perhaps after a set period of separation) and that a divorce will be granted. Regardless of which entity, group or state, is deemed to have presumptive jurisdic- tion over the case, surely each party would have grounds for declaring that one ruling fails to ‘‘provide a remedy’’ for their plight. The hus- band could claim that the state ruling fails to take account of his (their) group association and its attendant laws, and the wife could claim that the group ruling fails to take account of her equal citizenship. So which ruling should prevail? And why, if the case moves from, say, the group to the state in response to the wife’s position, would the husband not have grounds for demanding it be returned to the group’s jurisdiction in response to
   his
   position, as the state fails to provide
   him
   with mean- ingful remedy? Allowing individuals to shift from one system of law to
   

5. Shachar,
   Multicultural Jurisdictions,
   123. 79. Ibid.
   ,
   124.