Most important human right in our lifetime, Part 3

I suppose we can divide human rights into two types: those that people want, and those they don’t want. In the preceding parts of this thread, I’ve set out what I think is one of the hardest cases of the second type. I’ve pictured a Muslim woman (taking the term Muslim generically for present purposes—there are of course many Muslim sects with many variations of practices) who, in the exercise of her own volition, chooses to be legally inferior to men. I’ve tried to articulate her position, which is a composite of the views I have heard after many years of listening and study.

However, the International Covenant on Civil and Political Rights provides for equality before the law for all persons and prohibits discrimination on the ground of sex (Article 26). It also provides for the equal right of men and women to all civil and political rights (Article 3). Thus there is a clash between this norm of international law and the preferences of Muslim women.

Exacerbating this clash is the fact that Muslim men are united with Muslim women on this score: both sexes believe that men are superior to women—legally, socially, physically, and according to the tenets of Islam. Moreover, their nations stand behind them. Today, as I write these words, the newspapers are reporting the final text of the proposed Iraqi constitution. It provides in Article Two (1)(a) that “No law may contradict Islamic standards.” Let’s look at the relevant Islamic standard provided in the Qu’ran:

Men have authority over women because God has made the
one superior to the other. Good women are obedient. As for
those from whom you fear disobedience, admonish them,
forsake them in beds apart and beat them.

Quibbling aside, it seems to me that no fair-minded person can compare the texts of the ICCPR and the Qu’ran and conclude that they are substantively compatible with each other.

In approaching the problem of a clash between the law and deeply held religious/cultural practices, let us briefly consider two easier cases. The first case is that of Christian Scientist parents refusing to let their six-month-old child be operated upon to remove an intestinal blockage. Here the law intrudes: it prohibits the parents’ interference and requires that the operation proceed. The second case is that of female circumcision. Even though this practice is widespread in Muslim communities throughout northern Africa, the law on the books in those countries forbids it.

These cases are easier because our case of the inequality of Muslim women is generally accepted by all persons living within the nation that authorizes the inequality. Thus not only do we have a clash between international law and religious/cultural practices, but we also have a clash between international law and a state’s domestic jurisdiction. On all counts, this clash is so enormous as to lead us to revaluate our commitment to the rule of law.

I think revaluation is always healthy. The “law” should not blindly dominate our lives. I’ve argued elsewhere that even the word “should” should not apply to legal commands. A rule of law, as Kelsen pointed out, is simply a calculation: “if you choose to do X, the state will do Y to you.” There is no “should” or “ought” about it at all.

If Kelsen’s essentialist view is accepted, then we have to go outside the law to see whether the law “should” be obeyed. Morality (at least as Kelsen sees it) is external to the law. Thus it is morality that provides the “should” factor. But morality, by its very nature, cannot apply to every law that is enacted without ending up contradicting itself. Thus morality must pick and choose among the legal rules. Some “ought” to be obeyed; others (like the law requiring apartheid decades ago in South Africa) “ought not” to be obeyed.

Hence, in comparing the ICCPR with the Qu’ran, “the law” will only take us a small part of the way. What we really have here looks like a clash of morality. How do we deal with that?

One way to deal with it is through moral relativism. We might say that although women and men ought to be equal before the law, this equality applies only in parts of the world. In other parts, where both men and women agree that women ought to be inferior to men under the law, then THEIR morality dictates a result opposite to the one we would reach.

I think moral relativism is incoherent. I believe there is a clear moral answer to the clash between equality and inferiority for women. I believe in moral absolutism, which I acknowledge up front is an arrogant doctrine. I’ll try to defend my position in my final blog, coming soon to a theatre near you, either Wednesday or Thursday of this week.