Religion, State, and the Problem of Gender: Re-Imagining Citizenship and Governance in Diverse Societies

41 Pages Posted: 31 Jul 2006

See all articles by Ayelet Shachar

Ayelet Shachar

University of Toronto - Faculty of Law; Max Planck Society for the Advancement of the Sciences - Max Planck Institute for the Study of Religious and Ethnic Diversity

Abstract

From the controversy in France over whether Muslim girls have the right to wear a headscarf (hijab) in public schools to the debate surrounding the proposal to establish a private Islamic arbitration tribunal (dar-ul qada) in Canada, state and religion appear currently to clash on a regular basis in virtually every region of the world. While disputes over the scope and limits of religious accommodation are not novel, what is distinctive about this new brand of secular-religious quandary is that so many of the central issues raised revolve around the regulation of women, gender/sexuality and the family.

In this article, I analyze the major implications for competing notions of citizenship of the centrality of women and the family in these new cultural wars. I then offer concrete illustrations of the institutional re-designs that are required in order to better protect the twin goals of promoting religious accommodation and gender equality. The discussion proceeds in four parts. After a few methodological comments, I briefly outline in Part II the thrust of the multicultural citizenship model, and explain why it is insufficient for understanding the controversies at the heart of the new cultural wars. I then identify two major strands of critique of the multicultural citizenship model. For the sake of analytical clarity, I classify them as falling into two distinct categories: internal and external critiques. Part III focuses on the internal critique, as represented here by the feminist critique of multiculturalism. The recent controversy in Canada over the Islamic arbitration tribunal illustrates the core arguments of this approach. Part IV critically appraises the external branch of critique, which challenges the wisdom of adopting any accommodation policy that legitimizes public expressions of cultural or religious difference. The most powerful external arguments against multicultural citizenship rely on three alternative conceptualizations of political membership: liberalism, civic-republicanism, and ethno-culturalism. I address each in turn, using the contemporary example of the hijab controversy in France.

I close by revisiting the religious arbitration tribunal example, suggesting concrete amendments that help redefine the requirements of choice in consent to arbitration. I further recommend introducing an additional layer of judicial oversight as a condition for arbitral awards to become final and enforceable. By establishing a public veto point to which arbitrators are held accountable, the proposed review process can substantively improve the protection of the rights of women while at the same time allowing them to follow the tenets of the faith because it provides a practical legal mechanism for shifting the burden of finding such resolutions to the arbitrators themselves rather than the vulnerable party who has her loyalty to demonstrate. Encouraging such internal transformation represents a crucial improvement on the traditional multicultural citizenship model. Equally important, it offers the most practical hope for ensuring that women and other at-risk group members do not become the primary casualties of the new cultural wars between state and religion.

Suggested Citation

Shachar, Ayelet, Religion, State, and the Problem of Gender: Re-Imagining Citizenship and Governance in Diverse Societies. McGill Law Journal, Vol. 50, pp. 49-88, 2005; U Toronto, Legal Studies Research Paper No. 921290. Available at SSRN: https://ssrn.com/abstract=921290

Ayelet Shachar (Contact Author)

University of Toronto - Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada
416-978-1620 (Phone)
416-978-7899 (Fax)

HOME PAGE: http://www.law.utoronto.ca/faculty/shachar

Max Planck Society for the Advancement of the Sciences - Max Planck Institute for the Study of Religious and Ethnic Diversity

Hermann-Foege-Weg 11
Goettingen, 37073
Germany

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