Whose Rights? Which Equality? A Reply to Professor Bennoune

I wish to thank Karima Bennoune for her criticisms and comments on my article “Suspect Symbols: Value Pluralism as a Theory of Religious Freedom in International Law.” I wish also to thank Jon Finer and the editors of the Yale Journal of International Law for this wonderful opportunity to discuss the piece.

The inspiration behind Suspect Symbols is the idea of “value pluralism” which, as stated in the Introduction, takes the plurality of valuable options and ways of life to be ultimate and irreducible. The defining features of value pluralism are thus its anti-monistic position as an ethical theory, its view that conflicts of values are an intrinsic part of human life and that there is no single right answer in choosing between them, and that conflicts between entire ways of life suggest that not only individuals but also communities may be the principal bearers of rights (and duties) in pluralist political orders.

If we think even for a moment about current controversies in the world involving claims to freedom of religion—whether the so-called affaire du foulard in France and other European nation-states (and importantly also Turkey); the Muhammad cartoons controversy in Denmark and other predominantly Western states; or various areas of family law on issues such as marriage, divorce and custody—we can’t help but be struck by the variety of normative settlements both within and between different ways of life and the patchwork of legal dispensations that actually exist in the world. All states enact laws limiting the religious activities or practices of individuals and groups in that society to some extent, and in doing so all states assert certain specified reasons and grounds of justification for such limitations.

Irrespective of how such issues as the wearing of the Islamic headscarf may be resolved in particular domestic legal systems, the animating question for my work is how such questions are to be addressed as matters of international law. Do such practices perhaps violate or are they rather protected by international human rights norms regarding freedom of religion and belief and other associated rights? What, in particular, would we need to know in order to make such a determination? Indeed, is such a determination possible either as a matter of law or at the level of theory?

These are the questions that Suspect Symbols seeks to engage. Using the affaire du foulard as its theme, the article explores how even neutral laws of general applicability such as France’s Law 2004-228 banning the wearing of ostentatious religious symbols in public schools can result in claims of differential treatment (and thus unfair discrimination) by restricting the activities of only certain individuals or groups. Such questions of equal treatment, in turn, call into question the historical relationship between religion and the state with each state’s particular religious identity and constitutional matrix giving rise to its own complex patchwork of compromises and dispensations. The article’s general argument is that, together, such considerations of religious, ethnic and cultural diversity—and, in particular, deeply-held conceptions of individual and collective identity—suggest certain limits to the rationalist ambition of advancing a tidy and universally applicable theory of religious freedom in international law.

In this respect, the project is similar in inspiration to John Gray’s recent attempt to formulate a variety of “agonistic” liberalism which is “grounded, not in rational choice, but in the limits of rational choicelimits imposed by the radical choices we are often constrained to make among goods that are both inherently rivalrous, and often constitutively uncombinable, and sometimes incommensurable, or rationally incomparable”. See John Gray, Enlightenment’s Wake: Politics and Culture at the Close of the Modern Age 68-9 (1995). The argument thus pursues three lines of critique similar to those earlier advanced by Joseph Raz in his Morality of Freedom, as follows:

(i) in terms of method, by rejecting the notion of a fixed structure of basic liberties in recognition of the fact that the form of rights that best promotes autonomy is necessarily indeterminate and variable;
(ii) by recognizing that intrinsically valuable forms of human flourishing and ways of life enter into the value of autonomy itself such that forms of autonomous choice will vary in different societies; and
(iii) in acknowledging that incommensurabilities between ultimate values set a limit to the rationalist ambitions of legal and political philosophy.

Given this as the underlying ethos and logic of Suspect Symbols, it is rather dispiriting to note that Professor Bennoune has apparently commented on the article she wished I had written rather than the one I actually wrote. Rather than take up the article’s central conceptual and theoretical challenges regarding value pluralism and incommensurability of value, what attracts Bennoune’s initial interest and concern is footnote 214 at the end of the article and its discussion of the Shah Bano case. In particular, Professor Bennoune’s criticizes my account of Shah Bano for being insensitive to issues of gender equality and for “express[ing] little concern for Muslim women themselves who may be denied post-divorce maintenance” under Islamic family law in India. The article thus “only centers inter-group dynamics, not intra-group dynamics” and, while it does suggest “contestation as a remedy” in cases of conflict between competing claims to religious freedom and gender equality, it makes “no suggestion of what such a process could or should produce—or how it is to be mediated—or how women can be empowered within it.”

These are justified and very real concerns (which incidentally I personally share) and there are indeed libraries discussing this specific aspect of the relationship between religion and human rights. But in choosing the particular perspective of gender equality and the patriarchal structure of religious law and practice, Professor Bennoune misses the main point of the article. First, why should an article directed to the question of value pluralism substantially privilege one particular type of equality claim over others? There can be no doubt that women are an oppressed group whether in different religious groups or nation-states themselves (see, e.g. Catherine MacKinnon’s “Women’s Status, Men’s States” in her Are Women Human? And Other International Dialogues at pp. 1-14). But why focus on this particular oppressed group as against others? Why not focus, e.g., on the claims of children who may suffer various severe harms in the family, religious groups and states (think of the recent case involving the forced removal of 450 children from a polygamous Mormon group in Texas)? Why not focus on sexual minorities who face various forms of “dual subordination”, e.g. lesbian Muslim women in India who may seek to reject oppressive patriarchal religious structures only to find that the secular Indian state criminalizes a particular form of sexuality? What about discrimination by religious majorities themselves against certain religious or non-religious minorities (think, e.g., of states such as Iran, Israel or Russia)? And what about discrimination by states towards non-nationals on the basis of religion, ethnicity, gender, sexuality, and so on? These issues are not addressed in the article either; but this does not make them less important or not questions of genuine concern.

Second, and more critically, what is the normative basis for Professor Bennoune’s apparent privileging of claims to gender over religious equality? As illustrated by the detailed discussion of laws proscribing the wearing of the Islamic headscarf in the four nation-states of France, Germany, Turkey and the United States, the article addresses the question of how the State in essence protects whatever state interests it has as against the claims of religious groups. This is not a debate primarily within religious communities, but between religious communities and the State (or majority group) itself. Regardless of the merits of competing positions, the interesting question is why such debates within religious communities create different normative claims to those between religious communities and the state. Here, the idea of value pluralism allows us to see that there is in fact more than one substantive equality claim at issue.

The demand of the Muslim community in India for an autonomy regime and legal recognition of religious and other “personal” laws is a demand against the Indian state for substantive equality on the basis of religion or belief. In a case such as Shah Bano where a conflict arose between a Muslim personal law requiring the return of the marriage settlement upon divorce and the payment of maintenance only for the period of iddat, and the Indian Code of Criminal Procedure requiring monthly maintenance in specified situations of need, we are thus faced with a genuine conflict not between a liberty claim on the one hand and an equality claim on the other, but between two competing conceptions of equality: one protecting India’s Muslim minority against other majority and minority groups and the other the equal rights of women in India regardless of religion. Why recognize or privilege only the second substantive equality claim and not the first? And if both claims are to be given their due, how are the conflicts between them to be resolved?

One possibility is for the State to exercise its overriding legislative power—what Robert Cover once called the state’s “jurispathic” mode of coercively suppressing the “fecundity of the jurisgenerative principle” through the domination of autonomous paideic communities under a unitary law. But if so, what principle should the state employ? Professor Bennoune presumably believes the state ought to privilege whatever is best for women according to some conception of liberal substantive rights. Of course, if certain (nonliberal) religious communities are themselves strongly represented in state-based processes of democratic deliberation, then this may possibly defeat this objective (or, alternatively, may show the inadequacy of state law to protect the religious freedom of various minority groups). Thus, Bennoune must either be assuming a certain form of secular liberal democratic state or the applicability of international human rights norms such as Article 5 and 16(1) of CEDAW. (It is interesting to note that India has a reservation to both these provisions agreeing to abide by them only “in conformity with its policy of non-interference in the personal affairs of any community without its initiative and consent”). But what is this conception of equality exactly and who is to decide both its substantive meaning and its scope of application? Does it entail the version of maintenance upon divorce currently seen as meeting the demands of substantive gender equality in say France, or Australia, or perhaps Brazil? Or is it rather the latest account advanced by Catherine MacKinnon, or Abdullahi An-Na’im, or perhaps by Professor Bennoune herself? And how exactly is any such an account to be squared with the Indian Constitution’s commitment in Articles 26-28 to guarantee the communal autonomy of India’s religious minorities?

We may also ask whether the ultimate goal sought under the twin banners of “secularism” (or “equal individual rights”) and “gender equality” is for religious personal law to disappear altogether and to be replaced by a uniform civil code? Recall, e.g., Susan Moller Okin’s striking statement in her essay Is Multiculturalism Bad for Women? that it “is by no means clear, from a feminist point of view, that minority group rights are ‘part of the solution’” and in the case of nonliberal minority groups in liberal states, “female members of the culture … might be much better off if the culture into which they were born were either to become extinct (so that its members would become integrated into the less sexist surrounding culture) or, preferably, to be encouraged to alter itself so as to reinforce the equality of women—at least to the degree to which this value is upheld in the majority culture.” Is this the possibility of a “final solution” of which Isaiah Berlin once spoke—the prospect that mankind could be made ‘just and happy and creative and harmonious for ever’, for which no price could be too high to pay”? If so, what exactly is the price to be paid, how is to be exacted, and what, if any, are the possible alternative futures?

Ironically, in order for the state to be right in its codification of the demands of substantive gender equality, it must ignore or simply override the nuanced and contested internal arguments within religious communities themselves (the very “internal politics and debate among Muslims and those of Muslim, North African, and Arab heritage” which Bennoune oddly claims are “disappeared” in my article). The argument of Suspect Symbols is that there are strong normative reasons why the state ought to exercise considerable deference to the arguments going on there and that the struggle over the status quo ought not to be decided solely by the state according to what prevailing national majorities (recall the intolerant and threatening role of the Hindu Right in the Shah Bano controversy) or secular liberal academics, judges or bureaucrats decide.

Of course, how such claims are to be mediated is, yes, essentially-contested but require at a minimum an intersubjective and dialogic understanding of rights discourse. A helpful illustration of this dynamic is the current debate in South Africa over the recognition of Muslim personal laws. (Incidentally, this issue is now arising in a number of “Western liberal democracies” such as in Canada where the Ontario Law Reform Commission is reviewing whether Islamic principles of family and inheritance law could be used to resolve disputes within the Muslim community in Canada, and in England where the Archbishop of Canterbury has recently noted that Muslim communities seek the freedom to live under sharia law and has urged an exploration of what “might be entailed in crafting a just and constructive relationship between Islamic law and the statutory law of the United Kingdom.”) After extensive consultations with Muslim communities, the South African Law Reform Commission proposed in July 2003 a draft Muslim Marriages Act which inter alia recognizes Muslim marriages (including polygynous marriages) and deals with a myriad of issues from registration, to dissolution, to custody of and access to minor children, and to issues of maintenance (both spousal and child support). In response, the South African Commission for Gender Equality (CGE) has drafted an alternative bill called the Recognition of Religious Marriages Act which is stated to be a “secular bill of general application” and which provides for the recognition of all religious marriages (thus avoiding issues of codification of specific religious doctrines).

For a recent discussion of the tensions between these two bills, see the research report by Rashida at www.law.harvard.edu/programs/hrp/documents/Manjoo_RashidaWP.pdf. These are precisely the type of conflicts which value pluralism both anticipates and celebrates. In South Africa, we can thus see a robust constitutional dispensation which provides the normative space for contestation between what Shachar has termed a “religious particularist” conception of pluralism in which different religious communities have legal power over issues of personal status and a “secular absolutist” conception in which the state has authority over family law matters and all citizens are subject to a uniform secular family law. That this contestation will yield varying forms of legal pluralism and accommodation while at the same time seeking to maintain the existence of different majority and minority cultures should not surprise us either descriptively or normatively.

Far from attempting to “opt out of the debate between universality and cultural relativism” as Professor Bennoune alleges, such a view of value pluralism seeks to take both notions seriously and endorses neither illiberal nationalism nor religious fundamentalism. If this has a “whiff of relativism” to it then yes, guilty as charged. But, following Steven Lukes, we should be careful to note that pluralism differs from relativism in at least three ways:

(1) pluralists see value choices as determined by “fundamental moral categories and concepts that are part of people’s being, thought and sense of identity,” whereas relativists see “whole outlooks as determined by forces of which people are unaware;”
(2) pluralists see cultural differences as “bridgeable” whereas relativists do not; and
(3) pluralists take the “values that divide cultures, groups and individuals to be objective, whereas relativists do not.”

In order for value pluralism not to lapse into the subjectivism of either utopian universalism (fundamentalism, whether religious or secular) or apologetic relativism (illiberal nationalism), it must strive for objectivity by continually seeking an overlapping consensus on the conflicting ends that divide cultures, groups and individuals. What needs to be recognized is that claims of equality and nondiscrimination—even in the most liberal of societies with their own historically contingent public-private divides—raise fraught and complex questions in their relationship to religion and culture. If the plurality of conflicting values is to be mutually respected (rather than uncritically dominated by a single value or a particular set of values originating in late 18th century Enlightenment thought), conflicts between equality norms and collective identities must be interpreted and intersubjectively discussed in continuity with each society’s historic traditions and reference points. Indeed, it is now widely recognized that “fundamentalist” resistance to the redefinition of cultural and religious forms can be correlated with the extent to which outside portrayals or attempts to influence a tradition are made in condemnatory or contemptuous terms. As Charles Taylor has observed, this is a “self-reinforcing dynamic, in which perceived external condemnation helps to feed extreme reaction, which calls down further condemnation, and hence further reaction, in a vicious spiral.” If the argument of Suspect Symbols is not just “literate” but correct, then the case to be argued against well-meaning advocates such as Professor Bennoune is: “Pluralism for the liberals; relativism for the cannibals.”