or her behavior. This way, we do not presume that a homogeneous and unchanging culture accompanies migrants as they cross borders and remain in another country. Yet, the context of the United States should also be given weight.66 This approach is not blind to the problems inherent in attempting to identify what encompasses culture. This solution recognizes that both culture and context shape the behavior of Asian Americans as well as other immigrant communities. Clearly the culture of the country of origin might be more relevant for understanding the behavior and motives of first-generation immigrants rather than second-generation immigrants.
Professors Knop, Michaels, and Riles’s insightful article proposes another flexible framework to resolve what they frame as the debate between Okin-style feminists who claim that women’s equality (as defined in Western feminist terms) should trump multiculturalism and multiculturalists who give priority to culture.67 They draw from principles courts use in resolving conflicts of laws to determine when courts should consider foreign cultural and other norms and when they should not.
They explain how the conflict of laws approach would work by applying it to a hypothetical case that involves a father in Japan and a daughter living in California. The father transfers shares of a California subsidiary of a Japanese parent corporation to the daughter, but his intention is not to transfer actual control but only to transfer the stock in “name only,” which is a common practice in Japan to prevent potential disputes between siblings. The question is how relevant should the Japanese cultural norms and traditions be to an American judge deciding the case.68 Their proposal to use a modified conflict of law framework allows a decision-maker to use one normative system for one purpose and another normative system to resolve another issue.69
Context in Feminist Legal Theories and International Human Rights Law
There has been a dynamic relationship between American feminist legal theory and practice. Feminist legal theorists shaped litigation and advocacy strategies to promote women’s equality and the practice influenced how the theories evolved. These theories are often used in evaluating laws from the perspective of women’s equality. The perspectives were used by feminist lawyers and advocates to evaluate whether a law promotes, inhibits, or has a neutral impact in respect to women’s equality. When American legal feminism theories emerged to address inequalities in one domestic context—the United States. These theorists did not face a world with massive immigration. Today practices like sex selection, veiling, and female genital cutting move beyond borders more than ever. Recent feminist scholarship has begun to address women’s rights issues across multiple countries. It observes that country context is relevant in determining the human rights implications of immigrant practices. I discuss geographic context in traditional and emerging feminist legal theories and international human rights law and theory below.
Context in Traditional Feminist Legal Theories
Contemporary legal feminism traces its roots to the 1970s when early feminist activists struggled against laws that were formally unequal. They pushed for women to be able to engage in traditionally male-dominated activities. Prior to the 1970s, many laws contained sex-based distinctions. For example, only women could receive alimony, only men could be drafted, and the age of majority was different for men and women.70 Essentially, laws were motivated by the idea that a woman’s appropriate role was in the private sphere of home and family. The form of feminism, which reacted against such laws, is often referred to as “liberal feminism.”
In the 1970s, court victories erased many formal gender-based distinctions in the law. One prominent example is the case of Reed v. Reed where the U.S. Supreme Court found a statute that permitted only men to be executors of an estate unconstitutional.71 It should be noted that liberal feminists would advocate changing not only laws that seem to benefit only men, but also laws that benefit only women. For example, they helped in eradicating the “tender years rule” that gave women preference in child custody cases.72 These feminists emphasized women’s similarity to men. Most liberal feminists would not push the law beyond formal equality with men.
In liberal feminism, context is not very relevant in questions about laws and women’s equality. Making laws gender neutral and ensuring formal equality is assumed to promote women’s equality regardless of their impact on society. That is, liberal feminists assumed that giving women the same rights as men would translate into women’s equality. It was difficult for them to contend with biological differences where equal treatment could be disadvantageous to women.
Taking feminism in new directions, scholars emerging in the 1980s emphasized women’s differences from men and proposed that any evaluation of laws and policies should take that fundamental notion into account. Taking their cue from Carol Gilligan’s work, cultural feminists found that women’s behavioral differences were tied to their sex.73 Critics of cultural feminism argue that sex “essentializes” women’s behavior.74 While these feminists took into account social context, it was mostly fixed—all women shared certain traits and they were different from those of men.
Anti-subordination legal theorists also emphasized the difference between men and women. Men’s and women’s different roles and privileges in society contributed to women’s inequality. If men and women were not equal in society, then treating them the same in the law would not necessarily promote equality. These scholars believed that gender was socially constructed rather than fixed. According to a prominent anti-subordination theorist, Catharine MacKinnon, women’s inequality in society was the result of oppression by men, not biology. MacKinnon’s approach rejects the idea that men and women should be treated identically. Instead, she believes that in some cases identical treatment can lead to subordination. These theorists would be willing to deviate from formally equal laws if they will benefit women in practice.
Even though the impact of laws must be evaluated within the social context, MacKinnon’s theory did not imagine social context to vary so significantly. Her theory is animated by the assumption that society is defined by male dominance over women. In her view, the legal system was principally designed to perpetuate male dominance over women. Sexual abuse and sexual relationships were the fundamental ways in which women were oppressed. Consequently, even under dominance theory, if a policy promotes women’s equality in one country context, then it would be assumed to have the same impact in a different country context.75 Thus, these feminist legal theories did not seem to conceive of the possibility that a practice could be oppressive to women in one context, but not oppressive to women or neutral to women’s equality in another geographic context.
The anti-essential feminist theorists’ critique of the dominant strands of feminism in the 1990s is also relevant here. Those theorists have argued that the dominant feminist understandings were shaped by the concerns and goals of a very specific class of women. Some feminists called this essentialism “false universalism,” where the unstated norm is the white, middle-class, heterosexual woman.76 Angela Harris, for example, argued that Catharine MacKinnon’s understanding of rape ignored the experiences of black women for whom rape is linked with gender and race.77 She also argued that the motherhood experience varies for women of different races.78 Other scholars have pointed out that mainstream feminist legal theories have largely ignored lesbian women and assumed that their experiences are the same as those of heterosexual women.79 These theorists’ basic point is that women differ on the basis of race, sexuality, class, and other things. To treat them the same is problematic for a host of reasons, including the fact that policies developed around white middle-class women’s experiences do not necessarily apply to all women.
Race is the lens often used for analysis and critique in critical legal studies, but Indian American women and Indian women living in India are arguably of the same “race.” Scholars have pushed anti-essentialist feminist theory further to acknowledge that even those two groups of women should be distinguished. Consequently, an anti-essentialist feminist view would posit that a policy solution designed to address
