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Article Excerpt
ABSTRACT
This article seeks to fill a void in rights theory that permitted Western policy-makers to support the Iraqi and Afghan constitutions despite the risk they posed to women's rights. Women's advocacy efforts focused on the danger of discrimination from constitutional protection of religious law, which policymakers stated would be countered by the constitutions' progressive human rights provisions. The concept of discrimination failed to capture the true depth of harm, which is that religious law may exclude women from the protection of some or all of those human rights provisions. This article proposes expanding the theory of relational rights to simply and clearly explain the process that could render constitutionally protected individual rights meaningless to women in these countries. While the impetus for this article was the drafting of the Iraq and Afghan constitutions, this concept applies beyond these examples to any situation in which a country cedes authority over law or law enforcement to unaccountable non-governmental actors and is not limited to the adoption of religious law.
Many women's groups around the world watched the drafting and adoption of the constitutions of Afghanistan and Iraq with horror, futilely trying to explain to policy-makers the danger constitutional protection for religious law poses to women's rights. The focus of their advocacy efforts was on the obvious discrimination that results from conservative and at this time prevailing interpretations of Shari'a law. Western policy-makers all too easily countered these efforts by pointing to the progressive human rights protections in both constitutions, claiming that they will balance out any detrimental effect of religion in government. (1)
What was missing from women's advocacy efforts was a coherent conceptual framework to describe the true depth of the injury to women, which far exceeds the threat of discrimination. A new concept is needed to explain how constitutional protection for religious or cultural law can remove the safeguards of many, if not most, of the human rights provisions by making them unenforceable by women. (2) To fill this void, I propose an expanded theory of relational rights to simply and clearly express not only the extent of the damage constitutional protection of religious or cultural law can cause to women, but also the process that transforms individual rights into relational rights. By arming women's groups with a new concept, this article seeks to prevent Western policy-makers from supporting constitutional protection of religious or cultural law without examining women's concerns more deeply.
Part I of this article explains the theory of relational rights and its disparate impact on women. One important point described in this section is that the risk of harm expressed by the concept of relational rights is not limited to Iraq and Afghanistan, to the adoption of religious or cultural law or to women. Part II applies the expanded theory to the Iraqi and Afghan constitutions to illustrate more fully how constitutional entrenchment of religious or cultural law creates the possibility that women will be removed from under the protection of constitutional human rights provisions. It is intended to counter the assumption of Western policy-makers that progressive human rights provisions can neutralize the harm to women. While it is too late for this concept to influence the drafting processes in Iraq and Afghanistan, the understanding of how relational rights work may stop their development in other constitutions.
TABLE OF CONTENTS I. RELATIONAL RIGHTS A. The Theory B. Women and Relational Rights C. The Special Case of Group Rights D. The Solution II. CONSTITUTIONALLY ENTRENCHED RELATIONAL RIGHTS: THE CASES OF IRAQ AND AFGHANISTAN A. The Premises B. The Transformation CONCLUSION
I. RELATIONAL RIGHTS
Part I introduces the expanded theory of relational rights to provide a framework for understanding the risk of harm women face from the constitutional protection of religious law in Iraq and Afghanistan. Although ultimately the focus of this article is on the constitutional entrenchment of religious law, Section A develops the theory more generally, describing how it applies in several different contexts. Section B discusses the disparate impact of relational rights on women, which is important to understanding why relational rights are a women's issue. Section C then examines how group rights, such as the right to be governed by religious or cultural law, elevate the risk that individual rights will become relational. Part I ends in Section D with a brief discussion of one possible method for preventing the constitutional transformation of individual rights into relational rights.
A. The Theory
Relational rights are rights that are derived from the government, such as from a constitution, legislation or a judicial decision, but that individuals can exercise only with the permission or acquiescence of someone with whom they have a personal relationship. (3) Suad Joseph developed the initial concept based on her research and experiences in Lebanon where political circumstances were such that average citizens rarely were able to claim their rights and entitlements from the government without the help of their personal relationships. (4) Access to public services and resources depended on a patronage system that forced individuals to develop vast social networks. (5) Joseph provided the example of a neighbor who had been unable to obtain certification of his residency in Lebanon from the government. Her neighbor approached her for help. Joseph turned to her friends, who turned to their networks and so on until the neighbor eventually received his papers. (6) What should have been a simple and regular task of the government could not be completed without resort to private sources of power. Joseph extrapolated from a wide number of such examples that in Lebanon citizen's rights, or rights that inhere in individuals as a result of their citizenship in a country, had been transformed into relational rights in which access to them depended on personal networks of power.
Joseph's concept of relational rights can be developed to apply beyond the political transformation of rights through a patronage system to a transformation through law, law enforcement or their failures. In this expanded conception, government action, or in some cases inaction, removes certain areas of law or law enforcement from government oversight so that there is no accountability mechanism with the ability and/or willingness to enforce human rights. Governments create this void either by permitting unaccountable persons or bodies to determine the rules within particular areas of law or by ceding law enforcement to such actors. By surrendering its jurisdiction, the government allows these private actors to determine for others the content of human rights, and therefore access to them, without any meaningful oversight.
The concept developed here differs from Joseph's in that she seems to envision an individual needing a relative or an acquaintance to act essentially as a broker between the government and the individual. The government retains the power to provide the rights while the broker serves as a bridge between the individual and the government necessary to access those rights. Anyone with access to an effective broker then can achieve their rights. In my conception, personal relations are more directly responsible for determining the contours and boundaries of a person's rights as they actually control them. To clarify the difference, in Joseph's example, if she and her personal network were unable to help the neighbor access his rights, he could turn to others for help to reach the government. Under my theory, there would be no one else who could help him as the government in effect would have relinquished its power to safeguard and enforce the neighbor's rights to a specific person or group within his personal network, who then could decide whether and when to enforce or deny those rights. To avoid confusion, where necessary to delineate between Joseph's theory and mine, I will refer to my concept as the expanded theory of relational rights. Despite these differences, many of the lessons Joseph draws from her concept of relational rights apply also to the expanded theory.
The beneficiaries of this now private jurisdiction usually are the most powerful members of the community. Where these rights exist, access to them depends on the strength of a person's relationships with those more powerful actors and the bargaining chips they hold. (7) The dominant by-product of relational rights is the creation of differentiated citizenship under which citizens receive the benefit and privileges of citizenship based on the strength of their social relationships. (8) Some people will have full access to their rights, while others will have only some or even no access. (9) Citizens are not entitled to the same rights, and the strength of their rights could change as their relationships change. (10) Relational rights reinforce any existing social hierarchies or power imbalances between individuals, particularly between men and women, a point that is examined more fully in Part I (B) below. (11)
Relational rights can be created when law or practice gives nongovernmental actors the power to interpret or enforce law. In some instances, the unwillingness or inability of a government to enforce law creates relational rights. The lack of enforcement could result from a conscious decision of governmental actors or could be an element of a weak or failing state. The lack of accountability must be systemic and not simply a bad ruling or decision by a government official. The accountability mechanisms in that country must acquiesce to the transfer of the power to determine the content of and/or to enforce rights to private actors.
The treatment of domestic violence cases in much of the world demonstrates the conversion of individual rights to relational rights that results from the government's unwillingness to enforce law--or the systemic relinquishment of enforcement power to non-governmental actors. Throughout the world, police often are reluctant to intervene in domestic violence cases, believing that what goes on between intimate partners and within families is private. For example, in the United States standard protocol for a long time encouraged police officers to establish momentary peace rather than arrest and prosecute abusers or provide for a different long-term solution. (12) Such failure to address domestic violence violates women's right to equal protection of law by treating violence against women differently than violence among any other persons and also violates women's right to bodily integrity. The harm, however, goes far deeper than the violation of these rights. When police refuse to intervene in "private" family matters, they relinquish control over the enforcement of the right to bodily integrity to the husbands. The husbands then decide whether women can access this right by deciding whether to abuse their wives. Through the government's acquiescence to this transfer of power, women's individual right to bodily integrity becomes relational.
In other instances, a constitution or legislation expressly assigns such control so that compliance with the rule of law establishes relational rights. South Africa's customary law of succession illustrates how this process can work. This example is imperfect in that the South African constitution also supplies the solution to relational rights; however it illustrates the potential for constitutions and legislation to create relational rights.
Customary law is defined by the South African legislature as "the customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those peoples." (13) As a system of dispute resolution, it stresses conciliation and mediation to maintain harmony within the community rather than focusing on fault. (14) At the center of the fluid rules are the family and community: "[u]nlike most Western legal systems, customary law focuses on the obligation of an individual to the family and collective, rather than on individual personal rights." (15)
Article 15(3) of South Africa's constitution allows the enactment of legislation recognizing traditional systems of personal status or family law. (16) The Recognition of Customary Marriages Act of 1998 ("Customary Marriages Act") was adopted in accordance with Article 15(3) to recognize as legal marriages conducted under African customary law. (17) The Customary Marriages Act permits cultural norms to control personal status matters of black South Africans and, by doing so, allows privileged individuals to determine access to rights for their relations.
Under Article 7(1) of the Customary Marriages Act, customary law governs the proprietary consequences of customary marriages completed before the statute went into effect. (18) One proprietary consequence is that all property is deemed to belong to the husband, (19) with the limited exception of personal items such as clothing. (20) In exchange for the husband's "right" to control all marital property, customary law places on men a duty to use the property to care for their wives and families. (21) Customary law further prohibits a woman from inheriting property. (22) On the death of a husband, any property belonging to the husband, which includes all marital property, passes by intestate succession to the closest and most senior male from her husband's family, which could be a son, the husband's brother, his father, grandfather or even his uncle. (23) It follows a system of primogeniture. Customary law places a duty on the heir of the estate to take financial care of the widow, daughters and minor sons for as long as they live on the deceased's property. (24) The heir must meet his obligations regardless of the size and wealth of the estate he inherits. (25) If the widow or children eligible for care leave the property, the heir is no longer required to support them and he keeps...
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