Why have efforts at law reform and progress in exposing gender biases in formal legal systems failed to bring about gender justice? This chapter, from the International Development Research Centre’s (IDRC) book Gender Justice, Citizenship and Development, links current thinking on gender justice to debates on citizenship, entitlements, rights, law and development. It argues that equal citizenship, whilst key to the struggle for gender justice, does not guarantee it.
‘Gender justice’ can be conceived of in terms of entitlements and choice, absence of discrimination, or positive rights. Here it is defined as the ending of inequalities between women and men that result in women’s subordination to men. Gender justice as a process differs from ‘women’s empowerment’ by explicitly including accountability.
Social institutions – the family, the community, the market, the state – are based on contracts which determine the extent of power-holders’ accountability to the less powerful. Success in bringing gender equality to the contractual bases for the state and market has not done enough to challenge gender biases in the private sphere. While improvements in accountability relations in one arena can spill over into others, powerlessness can also carry over. In many countries the state’s dominance as lawmaker and rights-guarantor is not well-established. Other social institutions enjoying greater legitimacy may therefore limit women’s capacity to claim rights and deny the legitimacy of equal rights. Often, rights are seen as accessed through personal relations rather than a contract between citizen and state. Women are thus brought into public discourse in circumscribed roles and with circumscribed entitlements. Furthermore, privileging communal normative systems seem inevitably to create patriarchal hierarchies. Legal or cultural recognition of traditional communities can reify community boundaries and norms, discouraging women from claiming rights.
Thus, efforts to promote gender justice must bridge the public-private divide with regard to accountability systems. Greater attention needs to be paid to the way in which the institutions that produce rules and adjudicate disputes between women and men institutionalise biases against women. This is a complex process, characterised by:
- the persistence and profound influence of sub-state human communities within which gendered norms are generated
- the nature of both formal and implicit contracts within these communities that determine the extent to which power-holders must answer to less powerful members
- the phenomenon of patriarchal ‘capture’ of authoritative roles and significant resources in rule-making institutions, as well as of rights
- the subtle institutionalisation of male bias in the systems for adjudicating disputes or punishing offenders.
Challenging tyrannical traditional social relations and promoting inclusive citizenship through new approaches to accountability relationships requires:
- positive engagement with legal pluralism. This approach engages with the ‘legal worlds’ of women for whom formal law may be inaccessible and whose communities may regard formal law as illegitimate.
- interpreting customary law in the light of international human rights norms. An example of this is the work of Shirin Ebadi in Iran, who has defended progressive interpretations of Islam and attempted to revise Islamic jurisprudence.
- activating claims to citizenship rights through collective action. Examples of this include struggles to make service provision more responsive to the needs of the poor, rather than based on corruption or nepotism.