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Constituting Equality

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  • Page extent: 382 pages
  • Size: 228 x 152 mm
  • Weight: 0.77 kg

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 (ISBN-13: 9780521898362)

Constituting Equality
Cambridge University Press
9780521898362 - Constituting Equality - GENDER EQUALITY AND COMPARATIVE CONSTITUTIONAL LAW - Edited by Susan H. Williams
Frontmatter/Prelims

CONSTITUTING EQUALITY: Gender Equality and Comparative Constitutional Law

Constituting Equality addresses the question, how would you write a constitution if you really cared about gender equality? The book takes a design-oriented approach to the broad range of issues that arise in constitutional drafting concerning gender equality. Each section of the book examines a particular set of constitutional issues or doctrines across a range of different countries to explore what works, where, and why. Topics include (1) governmental structure (particularly electoral gender quotas), (2) rights provisions, (3) constitutional recognition of cultural or religious practices that discriminate against women, (4) domestic incorporation of international law, and (5) the role of women in the process of constitution making. Interdisciplinary in orientation and global in scope, the book provides a menu for constitutional designers and others interested in how the fundamental legal order might more effectively promote gender equality.

Susan H. Williams is the Walter W. Foskett Professor of Law at the Indiana University Maurer School of Law, where she also serves as the Director of the Center for Constitutional Democracy. Professor Williams graduated from Harvard Law School, where she served as the Supervising Editor of the Harvard Law Review and then clerked for Hon. Ruth Bader Ginsburg on the U.S. Court of Appeals for the District of Columbia Circuit (1985–1986). She has been a visiting faculty member at the University of Paris II (Pantheόn-Assas) and a Fellow at Wolfson College, Cambridge University, and at the European University Institute in Fiesole, Italy.

Professor Williams is the author of Truth, Autonomy, and Speech: Feminist Theory and the First Amendment (2004). She has published numerous articles on issues related to freedom of speech, feminist theory, freedom of religion, and civil society. Her writing has appeared in the Stanford Law Review, the University of Pennsylvania Law Journal, the Berkeley Women's Law Journal, the Yale Journal of Law and Feminism, and the Michigan Journal of Gender and Law. At Indiana Law, Professor Williams teaches Property, First Amendment Law, Feminist Jurisprudence, Constitutional Design, and a seminar on Comparative Constitutional Law on Gender Equality. Professor Williams is actively involved in constitutional advising for the Burmese democracy movement. She serves as a constitutional advisor to the Women's League of Burma, the Federal Constitution Drafting Coordinating Committee, and the state constitution drafting committees of all of the states of Burma. In this capacity, she teaches workshops, produces educational materials, and works on drafting and revising constitutional language.


Constituting Equality

GENDER EQUALITY AND COMPARATIVE CONSTITUTIONAL LAW

Edited by

Susan H. Williams

Indiana University


CAMBRIDGE UNIVERSITY PRESS
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Cambridge University Press
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Information on this title: www.cambridge.org/9780521898362

© Cambridge University Press 2009

This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press.

First published 2009

Printed in the United States of America

A catalog record for this publication is available from the British Library.

Library of Congress Cataloging in Publication dataConstituting equality : gender equality and comparative constitutional law /edited by Susan H. Williams.p. cm.Includes bibliographical references and index.ISBN 978-0-521-89836-2 (hardback)1. Sex discrimination against women – Law and legislation. 2. Women's rights.3. Constitutional law. I. Williams, Susan Hoffman, 1960– II. Title.K3243.C66 2009342.08′78 – dc22 2009000295

ISBN 978-0-521-89836-2 hardback

Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party Internet Web sites referred to in this publication and does not guarantee that any content on such Web sites is, or will remain, accurate or appropriate. Information regarding prices, travel timetables, and other factual information given in this work are correct at the time of first printing, but Cambridge University Press does not guarantee the accuracy of such information thereafter.


This book is dedicated to Justice Ruth Bader Ginsburg, who has been for me, as for so many others, a mentor, a role model, and an inspiration.


Contents

List of Contributors
ix
Acknowledgments
xv
Introduction:Comparative Constitutional Law, Gender Equality, and Constitutional Design
Susan H. Williams
1
SECTION ONE:STRUCTURE
1         Gender Quotas in Politics – A Constitutional Challenge
Drude Dahlerup and Lenita Freidenvall
29
2         Equality, Representation, and Challenge to Hierarchy: Justifying Electoral Quotas for Women
Susan H. Williams
53
SECTION TWO:RIGHTS
3         More than Rights
Helen Irving
75
4         Perfectionism and Fundamentalism in the Application of the German Abortion Laws
Mary Anne Case
93
5         Moral Authority in English and American Abortion Law
Joanna N. Erdman
107
SECTION THREE:CULTURE/RELIGION AND GENDER EQUALITY
6         Must Feminists Support Entrenchment of Sex Equality? Lessons from Quebec
Beverley Baines
137
7         Deconstructing the East/West Binary: Substantive Equality and Islamic Marriage in a Comparative Dialogue
Pascale Fournier
157
8         Conflicting Agendas? Women's Rights and Customary Law in African Constitutional Reform
Aili Mari Tripp
173
9         Gender Equality and the Rule of Law in Liberia: Statutory Law, Customary Law, and the Status of Women
Felicia V. Coleman
195
SECTION FOUR:CONSTITUTIONS AND INTERNATIONAL LAW
10        Constitutional Incorporation of International and Comparative Human Rights Law: The Colombian Constitutional Court Decision C-355/2006
Verónica Undurraga and Rebecca J. Cook
215
11        Guatemalan Transnational Feminists: How Their Search for Constitutional Equality Interplays with International Law
Christiana Ochoa
248
SECTION FIVE:WOMEN IN THE PROCESS OF CONSTITUTION MAKING
12        Women in the Constitutional Drafting Process in Burma
Thin Thin Aung and Susan H. Williams
273
13        Founding Mothers for a Palestinian Constitution?
Adrien Katherine Wing and Hisham A. Kassim
290
Conclusion:Gender Equality and the Idea of a Constitution: Entrenchment, Jurisdiction, and Interpretation
Vicki C. Jackson
312
Index
351

List of Contributors

Thin Thin Aung is the Secretary for Education and Advocacy of the Federal Constitution Drafting and Coordinating Committee (FCDCC) of the Burmese democracy movement. She also serves as the Coordinator of the Women's Political Empowerment Program for the Women's League of Burma (WLB) and as a member of the Central Executive Committee of the Women's Rights and Welfare Association of Burma (WRWAB). She participated in the nationwide democratic uprising in Burma in 1988 and left the country for India after the military coup in the same year. She lived in a refugee camp at the India-Burma border for two years and then moved to New Delhi in 1990 to seek refugee status from the UNHCR office. She has been living in exile in India for the last 19 years and working for the restoration of democracy in Burma and for women's rights and empowerment.

Beverley Baines is a Professor of Law and the Head of the Women's Studies Department at Queen's University, Canada, as well as being cross appointed to the School of Policy Studies. She co-edited The Gender of Constitutional Jurisprudence with Ruth Rubio-Marin (Cambridge University Press, 2004). Her recent constitutional law scholarship focuses on how the Canadian Charter of Rights and Freedoms frames rights conflicts between religious freedom claimants and sex equality proponents in the contexts of polygamy, faith-based family arbitration, and multicultural accommodation.

Mary Anne Case is the Arnold I. Shure Professor of Law at the University of Chicago. She was the 2006–2007 Crane Fellow in Law and Public Affairs at Princeton University. Her scholarship to date has concentrated on the regulation of sex, gender, and sexuality, although she also has done work on other aspects of constitutional and comparative law and on the early history of feminism. She has taught at the University of Virginia and studied the German abortion laws as a Bosch Public Policy Fellow at the American Academy in Berlin.

Felicia V. Coleman is presently a lawyer in private practice in Monrovia, Liberia. She served as a Circuit Court Judge for the 1st Judicial Circuit Criminal Assizes “A,” and then as an Associate Justice of the Supreme Court of Liberia during the interim government. Her judicial tenure ended on January 16, 2006, with the election and inauguration of the government of Madam Ellen Johnson Sirleaf. After stepping down from the bench, she served on the task force that drafted the Law Reform Commission Act that is presently before the National Legislature. She currently serves as a consultant for the drafting of the Act on the Prohibition of Chemical Weapons for Liberia. During her ten-year career as a trial lawyer, she also served as legal advisor to the Vice President of the Interim Government of National Unity from 1991 to 1993. Before embarking on her legal career, she worked as a registered nurse.

Rebecca J. Cook holds the Faculty Chair in International Human Rights in the Faculty of Law at the University of Toronto. She is ethical and legal issues co-editor of the International Journal of Gynecology and Obstetrics and serves on the editorial advisory boards of Human Rights Quarterly and Reproductive Health Matters. Her most recent book, written with B. M. Dickens and M. F. Fathalla, is Reproductive Health and Human Rights: Integrating Medicine, Ethics and Law (Oxford University Press, 2003).

Drude Dahlerup is a Professor of Political Science at Stockholm University. She has published extensively on women in politics, social movements, and feminist theory, including, for example, The Redstockings: The Development, New Thinking and Impact of the Danish Redstocking Movement 1970–1985, volumes I–II. (Gyldendal, 1998) (in Danish) and The New Women's Movement: Feminism and Political Power in Europe and the USA (Editor) (Sage, 1986). Her latest book, Women, Quotas and Politics (Editor) (Routledge, 2006), is the first global study of the new trend of using gender quotas in politics. See the Web sites www.quotaproject.org (with International IDEA) and www.statsvet.su.se/wip.

Joanna N. Erdman is a Co-Director of the International Reproductive and Sexual Health Law Programme and the Director of the Health Equity and Law Clinic in the Faculty of Law at the University of Toronto. Joanna has published in the areas of access to reproductive health care, Canadian and comparative health policy, and human rights law. Her primary scholarship concerns sex and gender discrimination in the regulation, structure, and financing of health systems.

Pascale Fournier is an Assistant Professor in the Faculty of Law and associate researcher at the Human Rights Research and Education Centre at the University of Ottawa. She served as a law clerk to Justice Claire L’Heureux-Dubé at the Supreme Court of Canada and taught at the McGill Faculty of Law (Canada), the Institute for Women's Studies and Research (Iran), the University for Peace (Costa Rica), and the State University (Haiti). Both her research and her teaching focus on law and religion, comparative family law, women and Islam, and international gender law. She currently serves on the Board of Directors for Canada World Youth, la Fondation Paul Gérin-Lajoie, and the National Network on Environments and Women's Health.

Lenita Freidenvall is a senior lecturer and researcher in the Department of Political Science at Stockholm University, Sweden. She received her Ph.D. in political science on the topic “Every Other One for the Ladies: On Women's Political Representation, Gender Quotas, and Candidate Selection in Swedish Politics 1970–2002.” She has published widely on women and politics, gender quotas, and candidate selection. Her most recent works are Electoral Gender Quota Systems and Their Implementation in Europe: Report to the European Parliament (2008), together with Drude Dahlerup and in cooperation with International IDEA, and Kvotering [Quotas] (2008), together with Drude Dahlerup. She has also written reports on constitutional reform and gender on behalf of the Swedish National Working Commission on Constitutional Reform.

Helen Irving is a Professor of Law in the Faculty of Law at the University of Sydney, where she teaches Australian and comparative constitutional law and theory. In 2005–2006, she was a Visiting Professor at Harvard Law School. She is the author and editor of many works, including To Constitute a Nation (Cambridge University Press, 1997/1999) and, most recently, Gender and the Constitution: Equity and Agency in Comparative Constitutional Design (Cambridge University Press, 2008).

Vicki C. Jackson is a Professor of Law at Georgetown University Law Center. After graduating from Yale Law School, she served as law clerk to Thurgood Marshall, Associate Justice, U.S. Supreme Court. She is co-author with Mark Tushnet of a coursebook on comparative constitutional law (now in its second edition); she serves as an Articles Editor for I·CON, the International Journal of Constitutional Law, and as a vice-president of the International Association of Constitutional Law. Her scholarship addresses federalism, sovereign immunity, freedom of expression, judicial independence, comparative constitutional law, transnationalism, and gender equality. Among other public service activities, she was a co-chair of the Special Committee on Gender of the D.C. Circuit Task Force on Gender, Race and Ethnic Bias (1992–1995).

Hisham A. Kassim is an associate at Kalbian Hagerty, LLP, in Washington, DC. His practice includes international commercial transactions and sovereign representation. He also served as an intern at the Jordan Securities Commission in Amman, Jordan. Author of numerous publications on the personal status codes of Palestine and Tunisia, he received his B.A. from the University of Virginia in 2003, and his J.D. from the University of Iowa College of Law in 2007.

Christiana Ochoa is a Professor of Law at Indiana University Maurer School of Law. She has worked for numerous human rights organizations throughout Latin America, including the Colombian Commission of Jurists, the Center for Justice and International Law, Human Rights Watch, and FUNDECI. Professor Ochoa has also taught at the Universidad de los Andes in Bogotá, Colombia. Her research currently focuses on the customary international law of human rights and argues for the inclusion of individuals in this traditionally state-centered area of international law.

Aili Mari Tripp is a Professor of Political Science and Gender and Women's Studies at the University of Wisconsin–Madison. She is co-author (with Isabel Casimiro, Joy Kwesiga, and Alice Mungwa) of African Women's Movements: Transforming Political Landscapes (Cambridge University Press, 2009). She has also published Women and Politics in Uganda (2000) and Changing the Rules: The Politics of Liberalization and the Urban Informal Economy in Tanzania (1997) and has edited several books, of which the most recent is Global Feminism: Transnational Women's Activism, Organizing, and Human Rights (with Myra Marx Ferree) (New York University Press, 2006). She is co-editor of the American Political Science Association's journal Politics & Gender and the book series Women in Africa and the Diaspora with University of Wisconsin Press.

Verónica Undurraga is the Director of the Women's Program at the Human Rights Center, based in the Law School of the University of Chile. She is a member of the Latin American Women Law Professors Network (Red Alas) and the board of Fundación Pro Bono. She received her J.D. from the Universidad de Chile and her LL.M. degree from Columbia University. She is currently a J.S.D. candidate at the Universidad de Chile.

Susan H. Williams is the Walter W. Foskett Professor of Law and the Director of the Center for Constitutional Democracy at Indiana University Maurer School of Law. In her work with the Center, she advises leaders and reformers in several countries about issues of constitutional drafting in diverse societies, particularly issues concerning gender equality and individual rights. She is the author of numerous articles and of Truth, Autonomy, and Speech: Feminist Theory and the First Amendment (New York University Press, 2004). She teaches courses on Property, Feminist Jurisprudence, Freedom of Speech and Religion, Constitutional Design, and Comparative Constitutional Law.

Adrien Katherine Wing is the Bessie Dutton Murray Professor at the University of Iowa College of Law, where she has taught for 22 years. Additionally, she is the Associate Dean for Faculty Development as well as the Director of the Summer Abroad Program in Arcachon, France. Author of more than 100 publications, she is editor of Global Critical Race Feminism (New York University Press, 2000). Her course load includes International Human Rights, Law in the Muslim World, and U.S. Constitutional Law.




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