Territorial Pluralism and Family-Law Reform: Conflicts between Gender and Culture Rights in Federations, North and South

Abstract

This article considers how gender conflicts and cultural rights conflicts affect family-law reform. UN Women maintains that women experience harms including violence because of legal pluralism, i.e. multiple family law codes. The article explores if federal territorial pluralism involves similar dangers. Since women's citizenship depends on equality, security and autonomy in family relations, the question is whether federal governments can regulate legal pluralism and enact reforms required under international law. Although in some federations, unregulated territorial pluralism harms women, some federal governments regulate legal pluralism effectively and reform family law codes. State capacity, political will, and manageable diversity all contribute to positive outcomes.

Notes

The key international document governing women's rights in family relations is the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Compliance is monitored by the U.N. CEDAW Committee based on reports from complying governments and coalitions of Non-Governmental Organizations (NGOs). Family law come from CEDAW country reports.

Family law challenges conventional (gender-blind) views about a federation's de/centralization, e.g. for many issues, Canada is less centralized than the USA. However, Canada is more centralized regarding family law (Smith 2008; Vickers 2010) because marriage and divorce are federal jurisdictions.

Many leftist and progressive feminists reject federalism, or favour weak ML governments. See Gray (2010) for examples.

Legal pluralism denies women equal treatment as citizens which is claimed to be the key benefit of the rule of law (Vickers 2013).

In Canada, (most) family law is governed under different legal codes in Quebec and the English-language provinces, and provisions that discriminate against women have been eliminated from both. Discriminatory provisions persist in the Indian Act.

Federal state formation in the global south often occurred within colonially imposed borders and was accepted to achieve independence.

Mainstream political science uses gender blind indices of democracy on the basis that the sexes’ experiences of democracy are the same. Gender scholars have shown that this is not the case. Consequently, the ‘gendering democracy’ project has formulated these additional indices (Coppedge et al. 2011): when women's full enfranchisement occurred; the extent of progress towards equality in participation/representation; gender quotas and their impact; and if constitutional rights apply to women.

This discussion reflects an e-mail conversation with Professor Andrea Chandler, a specialist on Russian gender equality policies (See also Chandler 2010).

Additional information

Notes on contributors

Jill Vickers

Department of Political Science, Carleton University, Ottawa, Canada.