Part 1

This excerpt from the introduction of Jocelynne A. Scutt’s Women, Law and Culture Conformity Contradiction and Conflict has been heavily edited to meet, as far as possible,  blog word count requirements. While the interconnecting pieces remain, description of the contributions have been omitted. The full details of each contribution will appear in  subsequent posts. The introduction also includes a bibliography, not published in the posts. WHN Admin.

INTRODUCTION

Jocelynne A. Scutt

Law and culture are intimately intertwined. Frequently (or even ultimately), laws are based on and in culture, and culture is influenced by law. Both play a major role in social organisation and political structure, and both impact substantially on women. Yet although women are today more likely to be in legislatures, the judiciary and associated professions, women are not the major players in determining the construction, interpretation and application of laws. In some countries, women remain almost wholly outside law-making institutions. Nor do women play the principal part in determining the terms and scope of the dominant culture.

Women, Law and Culture explores this reality from the perspective of scholars in different countries, with different ethnic/race and cultural backgrounds, emphasising the impact of law and culture on women from varying ethnic/race and cultural backgrounds living in different countries. Many recount and analyse the impact of religion or religious culture upon law and women and women’s place within the structure of the law. This ‘global’ perspective is essential to illustrate that ‘culture’ and ‘ethnicity/race’ are not confined to ‘other’: that women’s place in the world, whatever country, whatever culture and race/ethnicity, is impacted by the overwhelming control men at all levels exercise over law and culture.

PART I – IDENTITY AND REPRESENTATION

Through time, women have struggled to establish themselves as human – as ‘equal’ to men – in law and culture. Today, does women’s sense of identity receive support and affirmation through law and culture, or are women represented in ways that challenge women’s rights and subvert women’s right to be human? How does the law in various cultures and countries impact on women and women’s rights not only within the formal legal system but in the world outside it, and what of the imposition of law from another culture on a country and particularly on women? These questions are explored from the perspective of popular television culture; women’s dance culture – developing, and then subjected to surveillance and control through colonisation; women’s lives as sites of conflict and struggle in a ‘new’ country where ‘cover’ (the scarf, niqab, burqah) is dictated by culture and country of origin, reacted against by the ‘new’ country’s culture (and sometimes laws), potentially changing character to be a protest adopted by women fighting back against ‘foreign’ diktats;  asymmetry in law imposed through Sharia or Islamic law denying women independent representation and equal rights in home and family;  and what agency means for women, when those women and their rights are employed in support of imperialism by foreign governments claiming they must be liberated.

Robin Joyce reviews popular culture expressed in Australia’s version of ‘Big Brother’ (BB) and ‘The Apprentice’ (TA) UK. Australia and the UK reflect cultural similarities, the dominant culture in both coming from the same source…

Moving to popular culture in India, Anna Morcom reflects on women and dance culture impacted by foreign culture implanted when imperialism strikes. She explores the way a traditional form of expression developed by women as a women’s cultural ‘event’ encounters laws introduced by a foreign culture and legal system dominated by masculine values…

Susan SM Edwards shifts the debate to the covering-up of women’s bodies. As the Egyptian feminist writer and philosopher Nawal El Saadawi says of Western culture: ‘No one criticises a woman who is half-naked. This is so-called freedom … The problem is our conception of freedom. Men are encouraged neither to be half-naked, nor veiled. Why?’ (Cooke, 2015)…

Nahda Shehada addresses Islamic family law and the dominance of male rights and male right in custody and other aspects of male-female marriage and family dynamics. This enables the reader to ‘see’ the parallels with Western law, culture and family…

Part 1 – ‘Identity & Representation’ concludes with a chapter by Shadia Edwards-Dashti looking at the Middle East and the war on terror (WOT) – advancing a perspective through war and conflict, facilitating reflection on the elements of colonialism and imposition of ‘foreign’ law on women in their own countries, and how women fight back against control and notions of women’s identity and representation of women as ‘women’…

PART II – SPACE & PLACE

Women notoriously take up less space in both public and private areas. This is evident on public transport and footpaths: men (particularly younger men) not infrequently sit with legs spread (‘manspreading’) over the passageway and splayed over two seats (Dougary, 2015), whilst in the street fill the footpath and, particularly as youths or at sporting matches have a tendency to walk in groups (although younger women, particularly students, appear to adopt this approach at least in University towns). Even in the domestic setting, although the notion of men taking up ‘more space’ may be disputed, the room of one’s own called for by Virginia Woolf [1929] (1989) is less likely than the back-garden shed of his own (Jenn, 2013). ‘Dad’s chair’ in the lounge, drawing or sitting room is often a cultural or social feature that crosses national and class boundaries.

On a more confrontational level, Reclaim the Night marches address directly constraints confining women to home – attacks in public places, often at night or in deserted areas, but sometimes in the presence of others and in daylight. Women are told to stay out of dark places, even to remain at home behind deadlocked doors to be safe – although as well as constricting women’s freedom, this advice is too often misplaced: what use a deadlock if the attacker has the key? Women have defied the ‘stay at home’ ukase, taking up space by demonstrating outside the homes and workplaces of men identified as wife beaters (in Japan, for example), or taking to the streets in cars (as in Saudi Arabia) where law or custom denies them the right to drive. Laws advancing women’s right to enter university, engage in professions formerly categorised as ‘for men only’, take up traditionally male trades and occupations address the question of women’s space and place directly, too.

Karen Buczynski-Lee addresses this question in culture and law, in relation to women’s identity and representation in film – as filmmakers. Taking an historical perspective she looks at newly developing technologies at the turn of the 19th into the 20th century, when women struggled for the vote and to stand for parliament or congress, whilst being classed by the law as non-persons, so disentitled to work in professions where they might influence law and culture, and make their mark as ‘identities’ …

Gisele Yasmeen looks at space and place in the context of the market and public streets and venues in South and Southeast Asia. She reveals similarities and differences in Thailand, the Philippines and India. Colonisation again intrudes, for these countries at various times were subjected to British or US colonisation, with both cultural and legal implications…

Greta Bird and Jo Bird look at women, aging and the right to space and place within the confines of aged-care. Women being likely to live longer than men means that social and cultural influences in aged-care homes are highly likely to be gendered…

Amy Gaudion’s chapter on space and place for women in the US military is a good counterpart to Shadia Edwards-Dashti’s chapter addressing identity and representation of women in conflict, engaged (as the Kurdish women) in guerrilla warfare, and women operating under the imposition of military intervention. Gaudion addresses women’s role in the formal military and the impact on structures and traditional occupiers of military structures – male military…

In concluding Part 2 – ‘Space & Place’, Pragna Patel looks at culture and religion, focusing on the role of Islam and its place culturally in gender-based harms. Her chapter complements that of Edwards in illustrating the way a ‘new’ country may impose its culture on women in the name of extending them freedom (just as Edwards-Dashti looked at the ‘liberation’ of women through invasions of Iraq and Afghanistan). Yet Patel raises another dimension: that of a ‘new’ country giving imprimatur to the culture and laws of the ‘old’ country – the country from which women have come…

PART III – BODILY & PSYCHIC INTEGRITY

Law and culture directly impact on women’s bodies, women’s lives and women’s deaths. UN efforts to end violence against women through commitments by all member nations to guidelines, covenants or treaties recognising violence against women in the public and domestic sphere as unlawful are met by some countries’ protestations that this impinges on sovereignty. The principle of ‘Duty to Protect’ (UN, nd) falling upon nations where citizens/residents are subjected to war and state conflict can be used to require nations to take proper steps in law and the administration of justice to save women’s lives bodily and psychically when threatened or imposed on by criminal acts. Every human being is entitled to a safety. The state is obliged to provide it.

As violence against women occurs in all cultures and societies, with the major violence against women carried out by male perpetrators – most often men known to their victims (sometimes survivors) whether through marriage, civil partnerships or de facto relationships, other familial relationships (parent, sibling, child – attacks on mothers, grandmothers  or sisters) – it is imperative to explore what factors feature across cultures and societies, how or whether the law responds effectively or at all, or whether the law reinforces cultural and social constraints on women that support men in engaging in violence against women. Recognition of the ‘war on women’ in the domestic setting of the home and the domestic setting of a woman’s home country as genocide so long as the state stands by doing nothing, or taking inadequate steps to end it, is vital.

Patmalar Ambikapathy Thuraisingham addresses the law’s religious underpinnings. She looks at Christianity and its ‘hold’ on English common law, continuing to influence cultural attitudes and behaviours, particularly for some family men and within the legal system…

Kathryn Goodchild writes from experience, too – this time, direct experience of domestic abuse within a boyfriend-girlfriend and male-female relationship. She sets this against her exploration of sociological and cultural ‘justifications’ for violence inflicted on wives, female partners and girlfriends by partners who have learned, from boyhood, that their wants, desires and social position take precedence over those of women and girls. She focuses on media projections of women and girls which can be seen and understood against the backdrop of earlier chapters by Joyce and Buczynski-Lee…

Lynette Dumble addresses the situation in India, where violence against women in and on public transport has fuelled campaigns for women’s safety and security, and against traditional notions that, being disentitled to appear in or occupy public places, women are responsible for violence enacted against them. She reflects on violence against women generated in the many places and spaces women occupy – yet are denied to do so, safely…

Writing on their work undertaken in Canada into ‘non-state torture’, Jeanne Sarson and Linda MacDonald recognise the extremes of violence against women reflected in organised institutionalised familial violence, exploitation and abuse. The need for recognition in criminal law of this extreme end of criminal assault at home and other forms of domestic violence is discussed together with the political actions they have taken in highlighting this issue and its cultural, social and legal impact on women and girls…

CONCLUSION

‘Up From Under – Women, Law, Culture’ draws the threads of the Parts and the chapters, putting the issues in a legal context and reflecting on the way women have campaigned over centuries against wife torture (Frances Power Cobbe’s seminal 19th century article [1878](1995)), denial of women’s rights and freedom through family law (Caroline Norton’s work mid-19th century ([1858[(nd)), refusal to acknowledge women’s independent identity (Christine de Pizan (France 15th century ([1405](1999) (1985)) and Mary Wollstonecraft (England/France 18th century ([1792](1999)), leading to substantive and substantial changes. Using the foregoing chapters as a foundation, she illustrates the way women’s position socially and culturally continues to influence law and justice, and contrarily how law and justice have changed or attempted to change social and cultural constructs denying women personhood and equality through independent identity and rights. Sometimes, women conform socially and politically, and the law patronises them in its support, robbing them of independence and identity in the name of protecting them. Sometimes, the law operates contradictorily, conflicting with culture and supporting women’s rights. Sometimes, a direct conflict arises in the law, between women’s rights and cultural edicts – sometimes, women’s rights win out, sometimes, they do not. To be recognised as fully human, a struggle in which women have engaged for centuries, sometimes with support of men, often times without it, culture needs to readjust itself to recognise women as equal players in its making, with an equal right to construct culture as affirming women as human. The law needs to be reconstructed to ensure women’s rights to equality – economic, political, social and cultural – are as firmly embedded as their opposites have been – for too long.

Barrister and human rights lawyer, Jocelynne A. Scutt is Visiting Professor and Senior Teaching Fellow at the University of Buckingham and a Labour County Councillor.  Her Women and The Magna Carta was published in 2015 by Palgrave MacMillan and is available at good bookshops, Amazon  and as an eBook. Women, Law and Culture Conformity, Contradiction and Conflict was published in 2016 by Palgrave MacMillan and is available through good bookstores,  Amazon and as an eBook.