I am grateful for the opportunity to read and comment on Peter Danchin’s “Suspect Symbols: Value Pluralism as a Theory of Religious Freedom in International Law.” [See below] The tolerance that it advocates reflects a generally healthy human rights impulse. Hence, I wish that I could write a positive response to the article into which a great deal of thought and work has obviously gone. Unfortunately, while it is well-written and literate, I disagree with a number of its ideas – and find some of them especially alarming from a women’s human rights perspective.

Like much writing in the field of international human rights on freedom of religion, the article is virtually gender blind and fails to seriously take into account the extensive literature in feminist legal theory and in women’s human rights on the range of implications of collective rights for women. Indeed, in his account of the Shah Bano case in India – in footnote 214 – Danchin tellingly worries about the potential essentializing of Islamic culture and history that can come from critiques of gender discriminatory practices of Islamic family law in India, but expresses little concern for Muslim women themselves who may be denied post-divorce maintenance under that body of law. Moreover, it may mean very different things for men than for women that his value pluralism “calls into question the exaltation of individual autonomy.” Some men can take such autonomy for granted within the collective, many women cannot. Ultimately, Danchin only centers inter-group dynamics, not intra-group dynamics. He does not seriously question who speaks for a community nor does he interrogate who defines the claims of a group in a group rights framework.

While his theory of value pluralism is articulately argued, it is unclear what it actually means in the real world of conflicts over human rights, especially for women. He suggests that his aim is to “satisfy and mediate” both the “demand for substantive equality between religious and cultural groups in a theory of toleration and differential treatment by the state and the demand for substantive equality in terms of the treatment by the religious minority of the autonomy of its own members.” However, something has to give in resolving such claims when they conflict – and in the real world it is usually women’s human rights that are surrendered to the particular, to the communal, and to religious justifications for sex discrimination. Human rights law offers insufficient guidance on resolving such conflicts between the right to religious freedom and the right to gender equality. While Danchin suggests contestation as remedy (in footnote 220), he 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.

As to the issue of religious symbols, I will focus only on his discussion of headscarves worn by Muslim women, a topic on which I have written. (For a full exposition of my own views, please see Secularism and Human Rights: A Contextual Analysis of Headscarves, Religious Expression and Women’s Equality Under International Law, 45 Colum. J. Transnat’l. L. 367 (2007) [1]). This article is cited in Danchin’s footnote 18. However, the point in Danchin’s text to which the footnote attaches fails to convey the complex, contextual point I was trying to make, and the specific quote in the text is not attributable to me.) Other than my article, Danchin cites almost exclusively literature on his side of the debate on this question. The many critical views of headscarves and their meanings for women written by people of Muslim heritage, like Chahrdott Djavann’s, BAS LES VOILES ! (2003) or Ghais Jasser’s The Twin Evils of the Veil [2], 5 Soc. Identities 31 (1999), or Malika Zouba’s Voile et dépendance, 59 Confluences Méditerranée 33 (Fall 2006), to name but a few, are omitted.

Danchin refers to religious fundamentalist movements as a “perceived threat” on page 6. In fact, women’s human rights experts like Hilary Charlesworth and Christine Chinkin have argued that religious fundamentalisms represent one of the greatest contemporary threats to the human rights of women. Yet, this topic remains largely overlooked in much of the human rights literature outside of the specialized field of women’s human rights. International human rights scholarship and critique has often portrayed a range of complex socio-political questions as simple matters of difference and individual rights to freedom of religion. No topic has more thoroughly manifested these shortcomings than the commentary on the regulation of headscarves in French public schools.

In the polarizing post-September 11 environment, many international human rights advocates and other critical voices have understandably been concerned with not appearing to be discriminatory against Muslims. To avoid this pitfall, such voices have often responded with a thin anti-racist account of the headscarf controversy in France, an account simply pitting a racist French state against headscarved Muslim girls who are being hampered from expressing their individual religious beliefs. In this narrative, as in Danchin’s article, all of the internal politics and debate among Muslims and those of Muslim, North African, and Arab heritage on this topic is thereby “disappeared.”

I conducted research last summer in the Muslim community in France among those many members of the community who support the ban on religious symbols in public schools as a way to combat pressure on women and girls, and on the secularism that secures their rights, by fundamentalist Muslim organizations. (See The Law of the Republic Versus the “Law of the Brothers”: Muslim and North African Voices in Support of the French Law on Religious Symbols in Public Schools, in HUMAN RIGHTS ADVOCACY STORIES (Deena Hurwitz et al. eds., forthcoming 2008)). Some women and girls may wear such garments as a personal religious or other choice (though the latter term needs to be understood in nuanced, contextual ways). However, fundamentalist groups have been strong proponents of headscarves and other “modest” clothing – pushing more and more restrictive garments that often have nothing to do with the local traditions or heritages of the women and girls in question. For example, girls of North African heritage are exhorted to wear the imported Iranian hijab and djilbab – specific garments entirely foreign to North African religious tradition prior to the Iranian revolution. Coercion and violence are sometimes used to impose such “dress codes.”

Danchin asserts that “In most religious traditions, the wearing of religious symbols or attire – for example the Jewish yarmulke, the Sikh turban, or the Islamic hijab – is not a simple matter of choice, but a matter of religious duty, ritual and observance. (emphasis added)” With regard to the hijab, this is - to borrow his favored paradigm - highly contested. He is choosing one particular interpretation. Many Islamic feminists, and others, dispute the interpretation of religious tenets that make such covering a religious duty per se. And, in any case, for the most part, such “duties” have largely been interpreted by men.
The most worrying assertion that Danchin makes here is to refer to women who wear the hijab as those who “take [their] religious obligations seriously.” (page 6) In this worldview, Muslim women who do not cover become those who do not take their religious obligations seriously – rather than simply having a different interpretation of what it means to be a Muslim woman. Such a view of them can have a range of grave consequences, from ostracization to violence, in the real contexts where women face these dilemmas. It is precisely such implications which have led some feminists of Muslim origin to argue that the wearing of headscarves by some girls in schools, especially schools with a high percentage of Muslim students, can indeed have a negative impact on the human rights of other girls. Thus, some limits on the wearing of headscarves in school in particular contexts may come within exceptions to the right to express religious belief as found, inter alia, in Article 18(3) of the International Covenant on Civil and Political Rights. Danchin, like a number of Anglophone human rights critics of the French law, rejects this possibility out of hand.

His attempt to exempt himself from having to deal with the actual context of these problems, by stating in footnote 11 that he will not consider “relations between local ethnic and religious groups and movements in foreign countries, or the political mobilization of different groups and the nature of their demands with the resulting potential for violence or other rights violations” suggests that he is avoiding the very heart of the problem. The failure of liberal and human rights forces to comprehend and respond forcefully to the menace of religious fundamentalisms, in this particular manifestation to Muslim fundamentalist pressure on women and girls to cover, needs to be addressed.

As to Danchin’s attempt to opt out of the debate between universality and cultural relativism by offering the additional alternative of value pluralism – this alternative has a whiff of relativism itself. He notes that “there is a plurality of ways of thinking not just about the good, but also about the right.” In some ways this is a healthy reminder to avoid hegemonic constructs of universality. On the other hand, for women in particular contexts, such equivocation can be perilous. Danchin posits that “(h)uman rights are not immutable truths[,]” but rather “conventions, whose contents vary as circumstances and human interests vary”. In some ways this is again a helpful warning against Western liberal human rights imperialism. But for those on the frontlines of the struggles against movements that seek to deny women’s equality, and to justify grave and pervasive forms of sex discrimination in the name of religion and culture, such language can represent a damaging capitulation. This approach risks deconstructing the tools they need most.

While I believe the motivation of this article is to advance the laudable goal of preventing religious discrimination in a time of prejudice, because of Danchin’s failure to contextualize, he ends up arguing the very theoretical “view from nowhere” that he critiques. As he is an obviously erudite human rights theorist, I urge him to re-think his approach to these crucial questions.

Karima Bennoune

* From Opinio Juris:
http://opiniojuris.org/author/karima-bennoune/

* “Suspect Symbols: Value Pluralism as a Theory of Religious Freedom in International Law”. Peter G. Danchin, University of Maryland School of Law.
Published in Yale Journal of International Law, v. 33, no. 1, winter 2008, p. 1-61.

Abstract

The grounds upon which states may limit the freedom to manifest religion or belief are divisive questions in constitutional and international law. The focus of recent inquiry has been on laws which proscribe the wearing of religious symbols in certain aspects of the public sphere, and on the claims more generally to religious and cultural freedom of Muslim minorities in European nation-states. Stepping back from these debates, this Article aims at a more rigorous theoretical treatment of the subject. It asks whether there is a coherent notion of religious freedom in international legal theory and, if not, why not? In identifying certain problematic aspects of the extant literature, an argument is advanced which seeks to overcome the current impasse in liberal theorizing: the idea of value pluralism as a basis for religious freedom in international law. By acknowledging rather than seeking to avoid the disabling indeterminacies of rights discourse, and by recognizing the intrinsic connection between individual autonomy and communal goods, value pluralism opens new pathways for reimagining the limits of liberal theory and for cultivating an ethos of engagement toward currently intractable questions of subjectivity and intersubjectivity.

* http://works.bepress.com/peter_danchin/8/