Constitutions and Gender) Religion, Custom, and Legal Pluralism PDF

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15. Religion, custom, and legal pluralism

Susan H. Williams
15.1 INTRODUCTION
Legal pluralism poses an important challenge for constitutional drafters
and reformers concerned about gender equality. In many countries around
the world, the legal system recognizes normative orders, such as religious
or customary law, which are grounded in culture and maintained by
practices and institutions that are not part of the state-based system.
These alternative systems often include substantial gender inequality and
serious violations of women’s human rights. But recognition for such
systems is itself a human rights issue: these non-state-based systems of
law may be necessary to protect minority cultures or to allow the
expression of collective identities crucial to the self-determination of
peoples (see Kymlicka 1995; Tully 1995). These alternative systems
grounded in local cultures may also be the only dispute resolution option
that is available to many people in countries with weak state-based
justice systems.1 As a result, for reasons of both practicality and
principle, many countries are unlikely to eliminate these alternative
systems. From the perspective of constitutional design, the central
question is how particular constitutional choices might help a country to
move toward a future in which a plural legal system is consistent with a
commitment to gender equality.2
I approach this question as an advisor to constitutional drafters and
reformers in several countries struggling with this challenge. The Center
for Constitutional Democracy, which is located at the Maurer School of
Law at Indiana University, works with reformers in countries around the
world to design constitutional systems that will support democratic
institutions, encourage democratic practices and instill democratic cul-
tures.3 In my role as Director of the Center, I have worked over the past
decade with the government of Liberia, democratic reformers in Burma/
Myanmar and civil society organizations in Libya on issues related to
religious and customary law. Based on this experience, I believe that the
best hope for incorporating gender equality into plural legal systems lies
in using constitutional design to promote cultural development, rather
than in trying to use the state-based system to coerce the alternative
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414 Constitutions and gender
systems. Framing the issue in this way allows us to consider a broad

range of possible constitutional mechanisms and to address the under-
lying disempowerment of women within many cultural systems.
This chapter will provide an overview of this approach. The chapter
begins in Section 15.2 by describing three, largely separate literatures that
address gender equality issues in different types of plural legal systems. In
Section 15.3, the chapter suggests that these literatures can usefully be
situated in a single landscape when they are organized according to two
central factors that shape each type of system: (1) whether a majority or
minority of the population uses the alternative system; and (2) whether
there is one dominant group using the alternative system or many different
groups. These two factors affect the analysis of the situation in multiple
ways, but one of the most important is that they influence whether the legal
issues in a given country concern incorporating the alternative system into
the state-based legal system or accommodating it as a separate system.
Taking account of these factors, and the sorts of legal issues to which they
give rise, allows us to determine which sorts of constitutional mechanisms
will be helpful in promoting gender equality in different types of plural
systems.
Section 15.4 of the chapter offers an argument for the idea that
promotion of cultural change rather than external coercion is the most
productive framework for addressing this issue. And finally, Section 15.5
uses the framework developed earlier to offer some specific suggestions
about constitutional mechanisms for promoting cultural change within
different sorts of plural systems. While the analysis of any particular
country would require much more detailed attention to the specific
context, this general typology illustrates the usefulness of the suggested
approach, both in terms of the general orientation toward constitutional
design and in terms of the specific focus on promoting cultural change.
15.2 THE LITERATURES ON GENDER EQUALITY

ISSUES IN PLURAL LEGAL SYSTEMS
There are three different literatures that address the issue of gender
equality in plural legal systems. These literatures are focused on different
paradigm cases, rely on different theoretical and disciplinary foundations,
and generally pay little attention to each other. One of the goals of this
chapter is to highlight the fact that all three literatures are actually about
the same general problem and to demonstrate how they might be seen as
different parts of a single landscape of plural legal systems for the
purposes of constitutional design.

Religion, custom, and legal pluralism 415
15.2.1 The Multiculturalism Literature
The first literature has its home in political theory and addresses the issue
of multiculturalism. This literature focuses on the issues raised by
minority communities within developed democracies who find the state-
based legal system uncongenial to their cultures. These groups may be
religious minorities, such as Muslim or Orthodox Jewish communities
within majority Christian nations, or they may be indigenous peoples
within settler nations (Kymlicka 1995). In most of these contexts, there
are multiple different sorts of groups making these claims for accom-
modation, but it is possible that in some countries a particular minority
group may be seen as having a special status for such claims, either
because they are a substantial percentage of the population or because of
a particular history of relations with the majority, or both. There is
generally no question of incorporating the alternative system into the
state based system in these cases – for example, by using the alternative
system as a basis for legislation – because the majority population has no
wish to be regulated by the cultural rules of the minority and, in a
functioning democracy, they will reject such suggestions. The legal issues
tend to focus, instead, on a variety of mechanisms for accommodating
the alternative system, ranging from attention by state-based institutions
to cultural differences in those institutions’ own operations (for example,
the ‘cultural defense’) (Shachar 2012) to authorizing non-state-based
institutions to exercise jurisdiction over certain kinds of cases (for
example, ‘sharia arbitration’) (Baines 2009).
While there are issues in many countries that are addressed by this
literature, perhaps the paradigm example is Canada. Canada is a useful
paradigm for this literature for three reasons.4 First, Canada has multiple
religious and indigenous minorities making these sorts of claims, gener-
ating a wide range of issues. Second, Canada has strong constitutional
commitments both to multiculturalism and to gender equality, posing the
conflict starkly. And, third, Canada has a well-functioning democratic
political system and a legal system based on liberal values of individual
rights and equality, a condition that is largely assumed by all sides in the
multiculturalism debate. The major theoretical concerns of this literature
centre on the question of what justice requires for minority groups trying
to maintain their identities as against a dominant culture and how to
make those justice concerns consistent with a commitment to women’s
rights and gender equality.5 Thus, the literature as a whole tends to cast
the problem as a conflict between multiculturalism and gender equality,
where women’s concerns appear only on one side of the battle lines.

The feminist part of this literature offers a distinctive focus on the

experiences of the women within the minority cultural communities.
There is a range of views within this feminist literature. Some theorists
offer a detailed analysis of the harm to such women and argue that the
state-based legal system should simply refuse to recognize or accommo-
date gender-discriminatory alternative systems (Okin 1999; Cohen 2012;
Falsafi 2014; Ashe and Hélie 2014). Other theorists focus on the ways in
which women within these communities could be given the opportunity
to maintain both their cultural identities and their rights (Deveaux 2000;
Phillips 2007). And other theorists have offered demonstrations that
direct interference by the state that seeks to support women’s rights often
leads to a ‘cultural reactionism’ that only makes matters worse for the
women inside such communities (Shachar 2001). One of the insights of
this literature is that cultures are inherently dynamic and contested and
that the problems for women come from the fact that the women
members are often excluded from the mechanisms through which these
communities renegotiate and revise their cultures over time (Song 2007;
Williams 2012).
15.2.2 The Islamic Constitutionalism Literature
A second literature addressed to plural legal systems concerns the role of

Islamic law6 in the legal systems of majority Muslim countries. In this
literature, the paradigm case is very different: it is a country where a
majority of the people wish to use the alternative system and where they
belong to a single group rather than to many different kinds of groups.
Perhaps Egypt could serve as the paradigm for this literature.
There are complex political issues underlying the move to incorporate
Islamic law into the legal system in different majority Muslim countries.
The evidence concerning popular opinion in these countries suggests a
general support for this trend, but also a concern to preserve or expand
democratic control, accountable government and a range of human rights
(including both free speech in public media and gender equality)
(Esposito and Mogahed 2007: 50). The particular shape of the legal
system’s response to Islamic law is profoundly affected by histories of
colonialism, as well as by the competing interests and political goals of
secular elites (who often adopted authoritarian styles of governance after
independence), religious scholars and judges (whose traditional sources
of power were sometimes supplanted by government), tribal leaders, and
religious reformers (who may have a complicated relationship to trad-
itional religious authority figures, such as judges and scholars) (Otto
2010: 621–23, 645–46).

This set of countries is usefully seen within the model of legal pluralism
because the central legal issues in these cases concern the degree to which
and ways in which the alternative system will be integrated or incorporated
into the state-based legal system. Thus, a recent survey describes the issues
as including: (1) the scope of Islamic law within the legal system (i.e. only
family law or other areas as well); (2) the orientation toward Islamic law
within the legal system (i.e. puritan or moderate, a particular school of
jurisprudence or multiple interpretations); (3) the status of Islamic law
within the legal system (i.e. whether it is the only allowable source of law
and whether laws that are inconsistent with it will be considered invalid);
(4) which legal decision makers have the authority to enforce the role of
Islamic law (i.e. religious leaders, elected officials, courts); (5) the codifi-
cation of Islamic law; (6) the nature of the judicial system (for example,
the role of religious courts, the role of religious scholars on state courts);
and (7) the nature of the executive (i.e. ‘Islamic rulers’) (Otto 2010:
29–30).
Attention to gender issues in this literature has focused on three issues.
First, some scholars describe and document the ways in which the
alternative system threatens gender equality and violates women’s rights
(Mir-Hosseini et al. 2013). Second, some argue that certain types of
incorporation of Islamic law into the state-based legal system are more or
less dangerous from a gender equality perspective (Lombardi 2013;
Ahmed 2014). And third, some describe and analyse the efforts of
women within these systems to offer new interpretations of their religious
traditions that will be more consistent with gender equality norms and
women’s human rights (Mashhour 2005; Mir-Hosseini 2006; Afsaruddin
2016). The major theoretical issues addressed include the problem of
giving state-based powers to non-democratic religious authorities and the
effort to open up the traditions to interpretation by women themselves.
15.2.3 The Customary Law Literature
The third literature addressed to gender equality issues in plural legal

systems focuses on customary law systems. While customary law oper-
ates across a wide swath of the world – including indigenous com-
munities in the Americas, Roma communities in Europe and ethnic
communities in Southeast Asia – the focus of this literature has been on
African customary law. In the African context, the groups using the
alternative system often make up a majority of the population, but they
belong to multiple groups with different identities and different custom-
ary systems. South Africa has been one of the most studied examples and
serves as a useful paradigm for this literature. The legal issues in this

context include both questions of accommodation (for example, whether

the customary system can include rules that would otherwise violate the
constitutional equality guarantee) (Ndulo 2011: 89), and issues of incor-
poration (for example, whether traditional tribal leaders will be incorpor-
ated into the structure of the government, either through a national body
or as local government officials) (Abebe 2013: 442–45). One of the most
common and controversial incorporation issues has concerned the codifi-
cation of customary law: the process of using the legislature to draft
codes that summarize custom for use by state-based courts (Pimentel
2011: 77–79).
This literature has focused on gender equality issues mostly from the
perspective of human rights law – both domestic and international – and
the use of those human rights norms to protect women against discrimin-
atory customary law. Scholars have analysed the potential usefulness of
the Women’s Protocol to the African Charter of Human and People’s
Rights, which gives women the right to participate in the formation of
culture,7 as a mechanism for getting women access to positions of power
within customary systems (Bond 2007). Others have assessed the utility
of clauses – like Art. 31 of the South African Constitution8 – requiring
customary law to be consistent with the rights protected by the Constitu-
tion (Grenfell 2016). The major theoretical issues addressed by this
literature include a focus on the ways in which interaction between the
different legal systems can freeze the development of customary law and
empower traditional authority structures to the detriment of women
(Higgins and French 2012: 15–21).
15.3 BRINGING THE LITERATURES TOGETHER:

FACTORS RELEVANT TO CONSTITUTIONAL
DESIGN
From the perspective of constitutional design, all three of these literatures
address the issue of gender equality in plural legal systems. But they are
focused on different paradigm cases and, as a result, they are not often in
dialogue with each other. In order to think about the issue more
synoptically, this chapter suggests that we envision all three literatures as
occupying different locations in a landscape that can be described in
terms of two cross-cutting factors and the legal issues to which they give
rise. Once we focus on these aspects of the situation, we can see that all
three literatures can be incorporated into a coherent approach that can
organize our thinking on the challenges posed for gender equality by
plural legal systems.

15.3.1 Factor One: Majority or Minority
The first factor is whether the people who want to use the alternative
system are a majority or a minority of the population. Obviously, this
factor marks a continuum rather than two categories: as the percentage of
the population that wants to use the alternative system rises, we shift
from one end of the continuum to the other. But it is useful to separate
those situations in which a clear majority desires the alternative system
from those in which it is a small minority, while recognizing that there
will be cases in between these two extremes. The percentage of the
population that wants to use the alternative system is relevant in at least
two ways.
First, if the people using the alternative system are a minority, then
they may be unable to protect their culture through the normal demo-
cratic process and can make potentially powerful justice claims for the
accommodations necessary to sustain their identities. Majority groups
that can effectively use democratic political institutions are generally not
in need of such additional protections. Second, the size of the population
using the alternative system may have implications for which institutions
are most likely to be able to protect women’s rights. If the majority does
not use the alternative system and if the state-based legal system has
strong protections for gender equality,9 then majoritarian institutions like
the legislature can be expected to take the need to protect equality
seriously (although they may not be very concerned about minority
cultural protection). If, on the other hand, a majority of the population
wants to use the alternative systems that are gender-discriminatory, then
it is likely that the legislature (even in a functioning democracy) will not
be interested in protecting gender equality as against those systems. Seen
through the lens of this factor, the three paradigm cases are arranged as
two sets: the multicultural case involves minorities wishing to use
alternative systems, while the Islamic states and the customary law cases
involve a majority.
15.3.2 Factor Two: One Group or Many
The second factor concerns whether the population wanting to use the
alternative system is understood as a single group or as many different
groups. In the multicultural context, there may be one group that is the
focus of public attention – as in the sharia issue in the UK – but there are
usually multiple groups making claims for recognition of their own
systems. Canada is, again, a good paradigm example because, not only
are there multiple religious groups (Orthodox Jews and Sikhs, along with

Muslims), there are indigenous groups, as well, which opens the spec-
trum even further. In the customary law context, there are also generally
many different groups (different tribes in African states, with their own
separate customs). Whereas, in the Islamic state context, the central issue
concerns the role of one group’s alternative system: Islamic law.10
Although there are often religious minorities in these states, the recog-
nition for their systems is seen as parasitic on the status of Islamic law. In
other words, to the extent that Islamic law is incorporated into the
state-based system or recognized as a separate, complementary system,
people from other religions will need to rely on their own systems for
the legal issues that have been assigned to Islamic law for Muslims. The
focus of the plural system is on the majority’s alternative system and the
role of minority systems is seen as dependent on that issue. Thus, for this
factor, the paradigms in the literature line up differently: the multicultural
and customary law paradigms both involve multiple groups, while the
Islamic state paradigm involves a focus on one.
This factor is significant to constitutional design of plural systems
because it affects institutional and political dynamics. Where there are
multiple groups pushing for recognition of their alternative systems, there
is the potential for disagreement between them. This disagreement has
both positive aspects (creating the possibility for cultural variation and
allowing for the creation of checks and balances that might protect
gender equality) and negative aspects (weakening the democratic bargain-
ing power of minority groups that are divided against each other).
15.3.3 Legal Issues that Result from these Factors: Incorporation v.

Accommodation
The two factors identified above interact to determine the menu of legal
issues that is used to structure the plural legal system. In some cases, the
legal issues are focused on accommodation of the alternative system,
while in others, the focus is on incorporating the alternative basis into the
state-based system. Again, this dichotomy actually marks a continuum:
the range of possible legal responses to the alternative system run from
the extreme of incorporating it into the foundation of the whole state-
based system (for example, through a ‘sharia consistency’ clause, as in
the Iraqi Constitution11), through more moderate incorporation, such as
treating it as a branch or aspect of the state-based system (for example,
by assigning certain areas of law, such as personal status, to the
alternative system, as in India; see Nussbaum 2005), to the limited
accommodation of holding the alternative system separate from the

state-based system (with or without making it immune from the consti-

tution, as in many African nations; see Bond 2007: 305), to the opposite
extreme of refusing to recognize the alternative system at all (i.e. no
accommodation), as in the United States.12 There are many different
ways of incorporating or accommodating along this continuum, and each
raises its own issues of institutional design, some of which will be
discussed in Section 15.5 of the chapter. This continuum captures only
one dimension of such mechanisms: the degree to which they build the
alternative system (its rules, processes, or personnel) into the state-based
system. This dimension has significance for the underlying principle this
chapter will suggest for designing plural systems: the need to encourage
cultural development toward gender equality.
This dimension (incorporation v. accommodation) is a product of the
two factors identified above. Incorporation is most likely where a
majority of the population wants to use the alternative system: a minority
situation makes incorporation much less likely. Moreover, incorporation
is far more likely when those seeking recognition for the alternative
system belong to a single group rather than to multiple groups with
different systems. Thus, in countries where a particular group is seen as
having distinctive claims for recognition – such as the Maori in New
Zealand – there may be a greater chance of incorporation than if many
different groups are seen as similarly situated.
As a result, when seen through the lens of this dimension, the
paradigms in the literature divide in yet another way. The multicultural
paradigm case is at the accommodation end of the continuum: there is no
question of incorporation in these contexts. The Muslim majority para-
digm case is at the incorporation end of the continuum: the argument is
over how far toward that end a particular state should go and which
specific mechanisms of incorporation it should use. And the customary
law paradigm case is in the middle of the continuum: both accom-
modation and some forms of incorporation (such as codification or
hybrid bodies like Councils of Chiefs) are often on the table. Putting the
three issues together, we can see the whole landscape of plural legal
systems as captured by the following intersecting axes.
It is possible to test this schema by asking where it would place some
of the cases that do not fit so well into the paradigms around which the
literature is organized. For example, both India and Israel have plural
legal systems in which certain areas of personal status law are delegated
to alternative systems with varying degrees of separation from the
state-based system. In both of these countries, a majority of persons use
the alternative systems for these issues. And, in both countries, while
there is a single group that dominates (Jews in Israel and Hindus in


Majority----------------------------------------------------------------------Minority
(Incorporaon) (Accommodaon)
One group Muslim majority states Maori in New Zealand
(Incorporaon)
I
I India and Israel
I
Many groups African customary law Lan American Mulculturalism in
(Accommodaon) customary law Canada
Figure 15.1 The landscape of plural legal systems

India), there are multiple, separate alternative systems serving different
communities and these other systems are often the focus of attention (as
opposed to the Islamic law paradigm). Thus, Israel and India are best
understood as falling within the Majority column and at intermediate
points on the one v. many continuum. As a result, we should expect to
find issues concerning both incorporation (for example, codification) and
accommodation (whether judgments can be inconsistent with the consti-
tution) arising in those countries as, indeed, we do.
Similarly, some of the recent developments on indigenous issues in
Latin American constitutions can also be understood in terms of this
schema. In some countries, the indigenous population is large enough
that it moves toward the majority end of the spectrum and, while it is
composed of more than one group, those groups share some basic
cultural understandings that allow them to function as a political bloc on
some issues. In those cases, issues of incorporation are on the agenda, as
in the constitutionalization of the concept of ‘sumak kawsay’ in Ecua-
dor13 (Scofield 2017). In other countries, the indigenous groups are
smaller percentages of the public or more fragmented, in which case the
focus is on accommodation, such as recognition of indigenous land title
and community governance forms (Sieder and Barrera, forthcoming).
Thus, these cases cross the boundary between the literatures on multi-
culturalism and on customary law.
Finally, it is important to recognize that a country may occupy a
particular place on the framework in relation to a particular group or set
of groups, and may appear in a different place in relation to different
groups. For example, New Zealand appears in the upper right quadrant
(minority, one group) for the purposes of thinking about legal pluralism
issues in relation to the Maori. While the Maori are only about 15 per

cent of the population, the history of oppression has led the government
of New Zealand to adopt some forms of incorporation for this group that
are not available to others, such as reserved seats in the legislature.14 But
for the purposes of thinking about New Zealand’s religious minorities –
such as Muslims, Buddhists and Jews – the country would be placed in
the lower, right quadrant (minority, many groups – the multicultural
paradigm), along with Canada, the UK and the US.
In short, by focusing on these factors, we can map the landscape of
plural legal systems in a way that brings together the three separate
literatures currently engaged with these issues. All three literatures are
addressing the same set of problems, but they are focused on one or
another subset of the situations in which the problems arise. By looking
at all of these situations together, we can see that they vary along two
primary axes (majority v. minority, one v. many) and that the interaction
of these two variables results in a focus on certain types of legal issues
(incorporation or accommodation). Keeping in mind this landscape will
help us to think systematically about the constitutional design options for
bringing plural legal systems into consistency with gender equality norms
and goals.
15.4 PROMOTING INTERNAL CULTURAL CHANGE

I would like to suggest a particular focus or orientation as the basis for
approaching this problem of promoting gender equality within plural
legal systems. In order to address these issues more effectively, I believe
we need to reorient our efforts away from direct coercion of one system
by the other in this plural arrangement, and toward methods of encour-
aging and incentivizing cultural development toward gender equality.15
Currently, the feminist arguments in all three literatures surveyed
above tend to focus on ways of using the state-based legal system to
restrain the discriminatory aspects of the alternative system. The mech-
anisms differ in different countries, depending on where they fall on the
chart above, but almost all of the suggestions rely on using norms or
institutions from the state-based system to restrict the ability of the
alternative system to engage in gender discrimination. This dynamic is
clearest in the multiculturalism literature, where the starting point is an
effective legal system committed to a gender equality norm, and the
primary question is whether it should allow any deviation from that norm
by cultural minorities. But the same dynamic is at work in the customary
law literature, where the central question is whether the constitutional
commitment to equality (and/or international law norms of equality) will

be applied against the customary legal systems and, if so, through what
mechanisms. Even in the debates over the role of Islamic law in Muslim
majority states, a similar dynamic is evident. Here, the issue concerns the
extent to which the state-based legal system will absorb the gender
discriminatory aspects of the alternative system or stand apart from it as
a counterweight.
The sorts of protections for women that are the current focus in these
literatures are all important. But mechanisms like these are not a
complete solution to the problem. Efforts to get the state-based system to
coerce the alternative system into respecting gender equality tend to
result in one of two outcomes. In many cases, such efforts have little
effect because women lack the ability to mobilize the state-based legal
system to enforce them. In countries in all three of the paradigms, but
particularly in those outside the established democracies that are the
focus of the multiculturalism literature, women may have very little
access to courts or government agencies to enforce the rights they are
given. And, in some of the cases where women have managed to reach
the courts to raise their rights, they have run into resistance within the
state-based system itself. Where a majority of the public is committed to
the alternative system, the courts are sometimes simply unwilling to use
these tools to restrict the alternative system (Bond 2007: 336). For
these reasons, these sorts of protective mechanisms generally have only
sporadic and lackadaisical enforcement.
Alternatively, if the legal system does enforce the mechanism, such
enforcement often results in a backlash by their communities against the
women who invoke the power of the state (Shachar 2001: 35–36). In
cases around the world, women who try to use the state-based system to
restrain gender discrimination in alternative systems find themselves
subjected to enormous pressures by their communities to renounce their
rights in favour of their culture.16 So, either these mechanisms are
under-enforced or they generate a harmful backlash. Either way, they are
not a sufficient solution for women struggling to deal with the discrimin-
atory aspects of plural legal systems.
In addition, this construction of the solution – in which the state-based
legal system steps in to prevent the cultural community from harming its
women members – is deeply disrespectful toward the women in such
communities. They are being hurt, and their welfare should matter
deeply, but they are more than simply victims of their cultures. They are
actively engaged in supporting and transforming those cultures from
within (Bond 2010: 511). A solution focused on encouraging internal
cultural development17 – particularly on helping women to have a larger
role in that development – would be more respectful of the identities and

agency of the women involved. Moreover, if the women inside the

community are given more control over the agenda for cultural develop-
ment, they will be able to focus on the aspects of change that are their
own highest priorities, rather than the ones that the state-based system
sees as most important.18
This shift in orientation does not require us to abandon all of the
external constraints on the alternative systems. There may still be some
lines the state-based legal system enforces against everyone, regardless of
whether they are operating within such an alternative system or not. But
in thinking about the nature and enforcement of such lines, we must
reckon with the reactions of cultural communities to them. In each case,
we must weigh the factors in favour of imposing such restrictions (which
include the possibility that some women will be able to use them to
protect themselves against serious harm, and also the symbolic import-
ance of the state-based legal system endorsing gender equality with
respect to the behaviour at issue), against the factors on the other side
(which include the barriers that will keep women from using them
effectively and the likelihood of a backlash by the community that will
cause additional harm to women). Such a balancing is likely to lead to a
reduction in such restrictions, but not their total elimination.
The question, then, is: what do we add to these restrictions that might
help to encourage the transformation of the alternative cultures from
within, with a major voice for women in that process? Nancy Fraser has
explored a typology of remedies that is useful in thinking about this
question (Fraser 2009).19 She distinguishes between ‘affirmative’ rem-
edies, which redress the outcome of injustice without changing the
underlying structures that generate it, and ‘transformative’ remedies,
which reorder those underlying structures to try to eliminate the causes of
the injustice (Honneth and Fraser 2003: 74). For example, ‘affirmative
action’ which gives racial minorities preference in admission to college is
an effort to redress the outcome of underlying inequality in pre-college
educational opportunities, but it does nothing to change the fact that
schools in minority areas are poorer. A transformative remedy would aim
to equalize the quality of pre-college education across racial lines,
perhaps by adopting a new model of school funding that gave equal
resources to schools in different neighbourhoods. Obviously, transforma-
tive remedies are preferable, since they address the root of the problem,
but they are often much harder to achieve, both because their scale may
make them expensive or difficult to implement and because their
challenge to foundational structures makes them politically unpalatable to
many people. The challenge is, therefore, to look for affirmative remedies
that have some transformative potential (for example, by giving people

resources that allow them to acquire more power in the underlying

structures) and to try to minimize the counterproductive results that often
attend them (such as backlash).
The structures of such remedies will vary depending on where a
country is located in this landscape of legal pluralism. The question in
each case is: how can we use the legal mechanisms available to build a
form of interaction between the different systems that is responsive to the
underlying pressures for pluralism while encouraging the development
toward consistency with gender equality, particularly in terms of wom-
en’s ability to shape their own cultures?
15.5 APPLYING THE FRAMEWORK TO PROMOTE

INTERNAL CULTURAL CHANGE
There are three overall design strategies that can be used to help promote
internal cultural development toward gender equality. All three strategies
are focused on the nature of the institutions and persons that exercise
authority in the particular system: courts, executive authorities, schools
and so on.20 In other words, the strategies are focused on affecting the
structures and processes of the alternative system, rather than on con-
straining the substantive rules of that system. The goal is to use the
interaction between the two systems to encourage these institutions to
develop a commitment to gender equality. The idea here is not to put
certain choices off limits for such institutions, but to change what they
want to choose.
There are at least three ways to do this. One way is to try to change the
outlook of the people who are already occupying positions of power in
these institutions: to change the hearts and minds of existing authority
figures. Education can be an effective mechanism for achieving such
change. For example, education of traditional leaders has been one of the
most effective tools for reducing the prevalence of female genital cutting
(also known as ‘female genital mutilation’) in parts of Africa (see, for
example, Diop and Askew 2009). Indeed, it has been far more effective
than legal prohibitions, which tend to have little impact.21 If the
occupants of certain customary roles are licensed (like the practitioners
of female genital cutting), such education can be built into the licensing
process. This is one way of using the interaction between the two
systems to promote internal cultural change. Contact with other sorts of
institutions and cultures can also be useful. For example, the contact
between judges in different systems, including judges from other parts of
the world, has helped to spread the culture of human rights (see Kirby

2008). Offering judges from customary or religious systems the oppor-

tunity to meet and study together with judges from the state-based
systems would be a way to use the realities of legal pluralism to
encourage cultural change.
The second method is to change the people who are placed in those
positions. The goal is, of course, to include people who are likely to have
a greater understanding of and commitment to gender equality. First and
foremost, that means including women. In many places, there are existing
cultural resources that can be used to increase women’s power in
customary institutions. For example, in many African customary systems,
there are important roles for women as leaders with prestige and
influence over certain practices. The Sande societies in Liberia, for
example, or the female chiefs in Namibia, could be the basis for
extending women’s power within their cultures (Moran 2006: 40–42;
Becker 2006: 29–48). The state-based system can look for ways of
expanding the role of such traditional female leaders in determining the
future development of their cultures.22 The state can also use other sorts
of programmes to empower women within their communities more
generally, for example through education and micro-finance schemes.
Such programmes will be likely to increase women’s influence over their
customary systems, both because they will control more significant
resources within their communities and because they will have a greater
capacity to use their exit to create pressure for change. Such programmes
are an example of an affirmative remedy with transformative potential.
Finally, bringing in new people does not only mean bringing in
women. The commitment to gender equality might be strengthened
simply by making the process through which such authorities are chosen
more democratic. The space for new voices and visions can be opened by
moving toward a more participatory and democratic model of authority –
for example, by moving from a simple hereditary chieftaincy toward a
process of community discussion and choice.23 If chiefs have a role in the
state-based system – for example, by serving as local government
officials or in a body like a Council of Chiefs – then the state can require
those who hold such office to be chosen through a more consultative
process.
The third method is to create incentives for the alternative system to
move toward greater gender equality. Here the issue is less a matter of
changing hearts and minds (or of changing personnel) and more a matter
of providing carrots and sticks (mostly carrots, since sticks generate
backlash). For example, in many plural legal contexts, the alternative
system is seeking particular sorts of recognition from the state. It may,
therefore, be possible for the state to offer some of these benefits,

contingent upon the alternative system moving in directions that increase

respect for gender equality norms. For example, the state might offer
greater recognition for customary court judgments as the customary
system includes greater participation for women, such as treating wom-
en’s testimony as equal to men’s and including women as judges.24 There
is no prohibition on running the customary system without these ele-
ments and no requirement that they change. But, as the community
moves in these directions, the decisions of its courts will be given greater
respect by the state-based system. Similarly, the state could run a
scholarship programme for students from rural areas and increase the
amount given to all students (male and female) as the percentage of
female students from the district rises.
Finally, for all three strategies, two factors are crucial to avoid a return
to the unproductive cycle of coercion and backlash. First, the incentives
and influences by the state-based system can never take the form of
reducing the alternative system’s choices to a single, preferred path: the
pressures and influences must always leave some latitude to the alter-
native system to come up with its own approach. The cultural change will
be real only if the community has some freedom to choose a path that
serves its own sense of its needs and values. The goal is to have the
community feel that it is making creative choices among multiple
available options (even if the option that it would like best is not one of
them).
Second, it is important to recognize that these mechanisms may need
to operate in a gradual way over time. For example, the level of
consultation and participation in the choice of chief that is required in
order for a chief to act as a local government official might be increased
over time. So, once a practice of elite consultation has been developed
for many groups, the requirement might expand to include a role for the
public generally. If the goal is cultural change, then the process will need
to be incremental: too large a leap will take us back to resistance.
Obviously, both of these factors are deeply contextual. Whether a
particular change in how chiefs are chosen is too large a leap will depend
on the specific practices and cultural flexibility of the groups involved.
Similarly, whether the remaining options offered by the state leave
sufficient room for creative choice by the community depends on the
cultural resources the community can draw upon and the history of
interaction with the state. Equally obviously, these issues are both deeply
political. How large a leap (or how narrow a range of options) can be
experienced without backlash depends on how these decisions were
reached: the amount and type of consultation, the background relations
between the state and the community, the nature of the public dialogue

about the issues, and so on. A set of conditions with many plausible
mechanisms for encouraging cultural change can be destroyed by poor
politics; and a set of conditions with few opportunities can be improved
by good politics. Thus, I do not mean to suggest that the options are
given in advance. One can begin by identifying potential mechanisms
based on these three strategies, but they must then be pursued through
political means that could dramatically expand or contract their viability.
What, then, is the role of the framework developed in Section 15.3?
While these three mechanisms apply across the different sorts of plural
legal contexts, the location of a country on the framework will affect both
the range of options available within each strategy and the particular
form each option might take. The factors along each axis of the
framework provide constraints, making some possibilities more difficult
or less useful, and opening up others. So, for example, in a customary
law context, if the population using the customary law system(s) is a
small minority, it would not make sense to incorporate the chiefs into the
state-based structure (either as local officials or in a special Council). In
that case, the ability of the legal system to affect the way in which chiefs
are chosen (without simply imposing restrictions that are likely to
generate backlash) will be more limited. Thus, the location on the
framework will shape the analysis of each of the strategies just discussed.
As this example indicates, one of the most important ways in which
location on the framework affects analysis is that the movement along
each axis affects the degree to which the legal issues will focus on
incorporation or accommodation. As a practical matter, this variable
affects all of the strategies outlined above. The ways in which the
state-based system can affect the composition, attitudes and values, and
incentives of institutions in the alternative system all depend on the
degree to which (and the ways in which) the alternative system has been
incorporated into the state-based system. At one level, this is simply a
commonsense observation that the legal tools available for creating such
encouragement depend on the ways in which the two systems relate to
each other.
At a deeper level, however, the incorporation/accommodation variable
has a complex connection to the goal of encouraging internal cultural
development toward gender equality. At first glance, it might appear that
the shape of this effect is a simple inverse relation: the state-based legal
system’s ability to influence decreases as the degree of incorporation
increases. It is true that full incorporation of the alternative system into
the state-based system – with its gender discriminatory aspects intact –
will dramatically reduce the potential for interaction between the two
systems to create greater gender equality. The engine of change in this

machine is the commitment of the state-based system to a gender

equality norm.25 If the incorporation undermines that commitment, then
the machine will not function. This is why sharia consistency clauses,
particularly where their enforcement is given to democratically un-
accountable religious elites, are rightly seen as extremely dangerous to
gender equality.
But, the inverse relation does not hold at the other end of the spectrum:
accommodation that treats the alternative system as fully separate, with
no contact or connection with the state-based system, is not at the apogee
of influence. So, for example, immunizing the alternative system from
constitutional challenge or refusing to recognize the judgments of cus-
tomary courts altogether does not maximize the chance to influence
internal cultural change. In fact, such a system leaves the state with
minimal means of influencing internal cultural change (although it might
maximize its ability to exercise coercion). Perhaps counterintuitively,
then, the relationship between incorporation/accommodation and the goal
of encouraging internal cultural change is best understood as a bell curve:
the ability to influence internal change is weak at both ends of the
incorporation/accommodation spectrum and strongest in the middle. It is
where the state-based system has a rich set of connections to the
alternative system, but is not captured by it, that it has the best chance to
encourage internal cultural change.
15.6 CONCLUSION
Thus, an examination of the landscape of legal pluralism and the
challenge it poses for women highlights several important issues concern-
ing gender equality and constitutions. First, from the perspective of
constitutional design, there are at least three different literatures
addressed to this issue, but they focus on different paradigm cases,
ground themselves in different disciplines, and are generally not in
dialogue with each other. Second, it is possible to place the paradigm
cases in all of these literatures (and many other cases of plural legal
systems as well) in a single landscape organized around the intersection
of two axes: the percentage of the population that uses the alternative
system and the degree of diversity or unity in that population. Third, once
they are placed in this landscape, it becomes apparent these two factors
will determine where the legal issues in these systems fall along a third
continuum running from incorporation to accommodation. Fourth, the
chapter has argued that the current approach to promoting gender
equality under conditions of legal pluralism – which, across the three

literatures, centres on ways the state-based system can coerce or con-

strain the alternative system – should be replaced by a focus on how the
state can encourage internal cultural development toward gender equality
within the alternative system. This focus would allow us to think about
strategies for using the interaction between the two systems to shift the
personnel, incentives, and values of the alternative system toward greater
gender equality. The factors marking the axes of the framework, and the
issue of incorporation/accommodation, will be important practical con-
siderations in designing such mechanisms. And, finally, from this per-
spective of designing a system to maximize internal cultural development
toward greater gender equality, the best approach is likely to fall
somewhere in the middle of the spectrum and avoid either total incorpor-
ation or total separation of the alternative system. The engine of cultural
change works best where there are varied and well-functioning mech-
anisms of engagement and influence, without capture in either direction.
NOTES
1. See United States Institute of Peace, ‘Looking for Justice: Liberian Experiences with
and Perceptions of Local Justice Options’, Report 4, 39–42 (5 November 2009);
Pimentel (2011: 65).
2. The relatively new discipline of constitutional design studies constitutions from the
perspective of drafters, rather than from the perspective of those operating within an
existing constitutional system. It looks at the issues facing a particular country,
examines the range of possible constitutional choices available to address those
issues and how they have worked in various contexts, and develops approaches for
assessing and tailoring such choices for a specific country. This process is deeply
contextual and interdisciplinary: it focuses on the particular political, cultural and
economic conditions of a country in order to understand which constitutional choices
will help it to best address its challenges and develop its strengths.
3. For a description of the work of the Center, see http://ccd.indiana.edu.
4. There is a subset of this literature that is focused on a different paradigm. This subset
addresses the claims of indigenous groups in particular. As a result, the paradigm is
broadened to include a focus on Latin America, where the rights of indigenous
groups have been central to the constitutional agenda in a number of countries. See
Sieder and Barrera (forthcoming). As I will discuss later, this set of cases falls in a
slightly different place on the landscape of legal pluralism I will describe. But, the
scholarship addressing these cases most often proceeds from the same theoretical
foundations in political theory as the rest of the multiculturalism literature. For that
reason, I am describing this scholarship as a subset of this first category.
5. The literature tends to fall into one of two extreme camps on this issue: some writers
argue that minority groups should be free to restrict or discriminate against their own
members with very few limits beyond a guarantee that those members have freedom
to exit (see Kukathas 1995: 247–48), while others argue that the legal system should
refuse to allow any discrimination or restrictions that violate the liberal rules
applicable within the majority culture. See Okin (1999); Barry (2002).


6. I will generally use ‘Islamic law’ rather than ‘sharia’ in order to make clear that the
legal rules at issue are products of complex human institutions rather than the direct
will of Allah (which is the legal ideal captured by the term ‘sharia’). See Warren
(2008: 34–35).
7. See Protocol on the Rights of Women to the African Charter on Human and People’s
Rights, Art. 17 at http://www.achpr.org/instruments/women-protocol/. Accessed 26
February 2017.
8. See, e.g., Constitution of South Africa, Art. 31 (cultural rights ‘may not be exercised
in a manner inconsistent with any provision of the Bill of Rights’).
9. This second condition is, of course, far from certain to hold. It is often assumed in
the multicultural literature, which focuses on developed democracies, but I would
suggest that it should be interrogated even there. In the other paradigm cases for
plural legal systems, the gender equality commitment of the state-based legal system
is sometimes explicitly qualified, as in some Muslim majority countries with explicit
reservations from CEDAW. For example, Jordan has declined to be bound by Art. 16
concerning gender equality in family law and Egypt has refused to accede to any part
of the Convention that runs counter to Islamic sharia. See United Nations Treaty
Collection database at https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&
mtdsg_no=IV-8&chapter=4&lang=en#EndDec. Accessed 26 February 2017. In some
other countries, the equality guarantee, while not explicitly qualified, is so shallowly
rooted as not to be reliable. In Liberia, for example, although there is a large
jurisprudence on some issues, there is not a single Supreme Court case interpreting
the gender equality guarantee in the Constitution. See David C. Williams and Jallah
Barbu, ‘A Treatise on the Meaning of the Liberian Constitution’ (manuscript on file
with the author). These limitations in the commitment to the equality principle would
obviously affect the usefulness of certain state-based institutions (like courts) as
protectors for equality concerns.
10. This is a simplification because there are, of course, multiple forms of Islam. Beyond
the now-familiar divide between Shia and Sunni, there are multiple schools of
jurisprudence among the Sunni, and there are groups regarded as heretical among the
Shia (like the Alawites in Syria until recently). Nonetheless, these internal divisions
have not been central to the arguments over Islamic constitutionalism. One reason for
this may be that, in many countries, a clear majority subscribes to a particular form
of Islam and it is assumed that this form is what is being incorporated into the
state-based system. Another reason may be that the ways in which Islamic law is
incorporated into the legal system generally allow for some ability of individuals to
choose which particular form of the religion will apply to them (e.g. by choosing to
go to a Shia or Sunni authority for resolution of a family law matter). Perhaps for
this second reason, even in places like Iraq, where the Shia/Sunni divide has been the
source of tremendous conflict, it has not been the focus of arguments over the legal
status of Islamic law. Those arguments have, instead, been waged by secularists
versus Islamists, where Shia and Sunni appear on both sides of this divide. Thus, the
potential conflicts between different types of Islam were not the focus of discussions
about whether or how to incorporate Islamic law into the legal system in Iraq (private
conversation by the author with Ambassador Feisal al Istrabadi, one of the primary
drafters of the interim Iraqi Constitution, 5 May 2016).
11. See Iraqi Constitution, Art. 2(1): ‘Islam is the official religion of the State and is a
foundation source of legislation: No law may be enacted that contradicts the
established provisions of Islam.’: http://www.iraqinationality.gov.iq/attach/iraqi_
constitution.pdf. Accessed 26 February 2017.
12. Jacob Levy identifies the following kinds of claims:
1. exemptions from laws that burden cultural practices


2. assistance to do activities that the majority does without assistance
3. self-government
4. external rules restricting the liberty of non-members
5. internal rules restricting the liberty of members and enforced by social pressures
6. recognition or enforcement of a legal code specific to that culture by the state
legal system
7. representation for the group within government bodies
8. symbolic acknowledgement of the value of the group by the majority.
See Levy (2000: 127). Because I am addressing a broader range of contexts, beyond
the typical multiculturalist focus on developed democracies and relatively small
minorities, I would include a number of additional possibilities that arise in the
customary law and Muslim majority states, such as (1) recognition of alternative
legal institutions by the state-based system; (2) incorporation of alternative legal
institutions or authority figures into the state-based system; and (3) adoption of the
alternative system as the basis for law-making in the state-based system.
13. ‘Sumak kawsay’ is an indigenous concept that roughly translates to living well in
harmony: harmony with nature, with other human beings, and between different
aspects of life (such as family, work and community). It has consequences not only
for issues of economic development and environmental protection (where it is most
often raised), but also for issues of governance more generally. Ecuador has included
this concept in its Constitution by committing in the Preamble to build ‘a new form
of public coexistence, in diversity and in harmony with nature, to achieve the good
way of living, the sumak kawsay’ and by creating an enforceable right in Article 4 to
‘live in a healthy and ecologically balanced environment that guarantees sustainabil-
ity and the good way of living (sumak kawsay)’. See Constitution of Ecuador at
http://pdba.georgetown.edu/Constitutions/Ecuador/english08.html. Accessed 23 Feb-
ruary 2017.
14. See ‘The Origins of the Maori Seats’, Parliamentary Research Paper at http://
www.parliament.nz/en-nz/parl-support/research-papers/00PLLawRP03141/origins-of-
the-m%C4%81ori-seats. Accessed 23 February 2017.
15. In this chapter, I am focusing on encouraging such development primarily in the
alternative system, but it is also necessary to encourage such development within the
state-based system. No country has achieved perfect gender equality in its state-
based legal system and there are important ways in which inequality in each part of
a plural system can interact with and facilitate inequality in the other part. See Song
(2007: 6–7).
16. See, e.g., Mohammed Ahmed Khan v Shah Bano Begum, (1985) 2 S.C.C. 556 (India).
For a discussion of the Shah Bano case, see Martha Nussbaum (2004: 190–91).
17. Obviously, no culture is independent of the surrounding cultures, and barring
influence across these lines is neither desirable nor possible. The focus on ‘internal’
development is not intended to distinguish it from development influenced from the
outside, but only from development that is experienced as imposed from outside.
Methods of influence that are not experienced as coercion (including education,
exposure to alternatives, cooperative interaction and so on) are the heart of this
approach.
18. This argument does not assume that the women inside such communities will be free
of the cultural gender biases that are causing the problems; only that, with support
from outside, they will be in a better position than anyone else to assess those biases
and make decisions about the priorities for their own welfare. See Williams
(forthcoming).


19. For an application of Fraser’s tripartite theory of justice (Fraser 2009) to the issue of
customary law, see Williams (2016).
20. All three of the paradigm cases involve these sorts of institutions within the
alternative system, although their nature is different in different contexts. Thus, the
courts at issue may be religious, customary or tribal courts; the executive authorities
may be imams, chiefs or shamans; and the schools may be Al Azhar, private
religious primary schools or bush schools. The idea is to identify these sorts of
institutions within the particular system at issue and then think about the ways that
interaction can be structured to increase their openness to gender equality norms.
21. Between 1980 and 1998, 24 of the 25 countries where female genital cutting is
prevalent, and most Western countries, adopted laws or policies specifically designed
to eradicate the practice. See Boyle (2001). Nonetheless, millions of women and
girls continue to be subjected to the practice each year. See Fact Sheet on Female
Genital Mutilation, WHO (February 2013) 140 million women and girls are living
with the consequences of FGM worldwide, and many of these cases come from
countries where the practice is illegal. For example, the prevalence rate of FGM in
Somalia is estimated at 98 per cent, despite the fact that the 2012 Constitution
outlaws it. See Ban Al-Dhayi, ‘Towards Abandoning Female Genital Mutilation/
Cutting in Somalia Once and For All’, UNICEF (27 February 2013) at http://
www.unicef.org/somalia/reallives_12335.html. Accessed 23 February 2017.
22. There are obvious risks in using such existing institutions: they may simply solidify
prevalent cultural biases about women’s capacities and proper roles and they may be
occupied by women who are less likely to challenge harmful traditions. There are
reasons to think that these risks are often balanced by opportunities: the women in
these roles have both knowledge and social capital that will help them to make
changes and they can be expected to want to increase their own influence within
their communities. The judgment about whether the risks outweigh the potential
benefits would have to be made in each instance, for each proposed form of
interaction, with each institution. The point is simply to open up the space for that
judgment, not to assert that it will always come out in favour of this particular
strategy.
23. Not necessarily an election. If elections are not culturally resonant, they may simply
be hijacked by those with power in the community. Using more culturally familiar
forms of community dialogue is likely to create a more realistic option for input by
a broader range of participants.
24. In many Islamic systems, a woman’s testimony is worth only half of a man’s; i.e. it
takes the testimony of two women to overcome the contrary testimony of one man.
For a discussion of this issue, see Testimony in Courts, Women’s Islamic Initiative in
Spirituality and Equality at http://www.wisemuslimwomen.org/currentissues/
testimonyincourts/. Accessed 23 February 2017. Customary law in some African
groups is similar: women are not allowed to speak in the settings in which the
community handles disputes and they are not allowed to serve as judges. For an
interesting analysis of traditional forms of female leadership in Liberia and the
barriers to it, see Steady (2011: 99–160).
25. Which raises the rather important question: are the state-based systems in these
countries really committed to gender equality? If their commitment is not as strong
or clear as it could be, that should affect the analysis. The text focuses on how the
interaction between the two systems could be used to motivate cultural change within
the alternative system, but it is also important to think about how this interaction
could be structured so as to motivate cultural change toward greater gender equality
in the state-based system. For example, it is interesting to think about whether a
move to encourage women’s representation in Islamic tribunals in developed


democracies might help to motivate the appointment of more female judges in the
state-based courts in such systems.
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JOBNAME: Irving PAGE: 3 SESS: 4 OUTPUT: Fri May 26 08:55:10 2017

15. Religion, custom, and legal pluralism

Susan H. Williams - 9781784716967

414 Constitutions and gender

systems. Framing the issue in this way allows us to consider a broad

15.2 THE LITERATURES ON GENDER EQUALITY

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Religion, custom, and legal pluralism 415

15.2.1 The Multiculturalism Literature

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416 Constitutions and gender

The feminist part of this literature offers a distinctive focus on the

15.2.2 The Islamic Constitutionalism Literature

A second literature addressed to plural legal systems concerns the role of

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Religion, custom, and legal pluralism 417

15.2.3 The Customary Law Literature

The third literature addressed to gender equality issues in plural legal

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418 Constitutions and gender

context include both questions of accommodation (for example, whether

15.3 BRINGING THE LITERATURES TOGETHER:

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Religion, custom, and legal pluralism 419

15.3.1 Factor One: Majority or Minority

15.3.2 Factor Two: One Group or Many

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420 Constitutions and gender

15.3.3 Legal Issues that Result from these Factors: Incorporation v.

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Religion, custom, and legal pluralism 421

state-based system (with or without making it immune from the consti-

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422 Constitutions and gender

Figure 15.1 The landscape of plural legal systems

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Religion, custom, and legal pluralism 423

15.4 PROMOTING INTERNAL CULTURAL CHANGE

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424 Constitutions and gender

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Religion, custom, and legal pluralism 425

agency of the women involved. Moreover, if the women inside the

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426 Constitutions and gender

resources that allow them to acquire more power in the underlying

15.5 APPLYING THE FRAMEWORK TO PROMOTE

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Religion, custom, and legal pluralism 427

2008). Offering judges from customary or religious systems the oppor-

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428 Constitutions and gender

contingent upon the alternative system moving in directions that increase

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Religion, custom, and legal pluralism 429

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430 Constitutions and gender

machine is the commitment of the state-based system to a gender

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Religion, custom, and legal pluralism 431

literatures, centres on ways the state-based system can coerce or con-

Susan H. Williams - 9781784716967