75 Pages Posted: 14 Jul 2003
Human rights law has a problem with religion. In a postmodern world in which the nation-state has been deconstructed and eighteenth- and nineteenth-century notions of unmediated national sovereignty have been properly put to rest, religion - and its attendant category, culture - represent the New Sovereignty. September 11th crystallized this fact. The infamous Taliban regime in Afghanistan assumed power in 1996 and immediately began stripping women of fundamental human rights. But war, not law, defeated what was perhaps the world's most ruthless fundamentalist regime. This Article argues that religion qua religion is less the problem than is law's construction of this category. Premised on Enlightenment theory, law has a fundamentalist view of religion as law's other. Confident that freedom in the public sphere is freedom itself, law posits and, indeed, preserves religion as an extralegal sphere that is static, irrational, and imposed. Individuals may exit religion but not reform it. Increasingly, fundamentalists are taking advantage of this legal tradition. Because law does not recognize religious communities as contested and subject to change, legal norms such as the freedom of religion and the right to culture defer to the claims of patriarchal elites. The result is that, in case after case in both national and international law, law is siding with fundamentalists over modernizers. But on the ground, human rights activists working in Muslim communities are piercing the veil of religious sovereignty. In the work of these activists, this Article hears the rumblings of the New Enlightenment: Today, individuals demand democracy, reason, and rights within religious and cultural communities, not just without them. Examining the campaigns of reformers in Muslim communities through the overlooked efforts of transnational human rights networks and archives of women's human rights education manuals - illuminated by interviews with leading activists from around the globe - this Article identifies an emergent, conceptually coherent framework for operationalizing modernity and freedom within a context of culture and community. This New Enlightenment upsets the foundation of the legal understanding of the right to religion, which has deferred to leaders' views over those of members. While feminists have challenged the absolute sovereignty of the private sphere, particularly on the issue of violence, women's right to contest and create normative community - that is, to make cultural and religious meanings - has been far less theorized. This Article suggests that women's human rights law must go beyond freedom from violence to freedom to make the world.
Suggested Citation: Suggested Citation
Sunder, Madhavi, Piercing the Veil. Yale Law Journal, Vol. 112, April 2003; UC Davis Legal Studies Research Paper No. 112. Available at SSRN: https://ssrn.com/abstract=413982