Out of the Shadows: Traversing the Imaginary of Sameness, Difference, and Relationalism -- A Human Rights Proposal

Abstract

This work seeks to develop a methodology that serves a women's anti-subordination project. To achieve this goal, Part II sets out the theoretical background of feminist theory (II.A) and three waves of feminism (II.B). Part II.C articulates the feminist revelations about law these analytical frameworks have engendered.

This project sets out to craft a methodology that can assist the goal of full personhood for women. Women's full personhood is a substantive concept that, as detailed in Part III, I ground on international human rights notions of fundamental rights -- rights that we have, or ought to have, because we are human beings. Part III explores the breadth of the “rights concept” in the human rights model which includes social, economic, and cultural rights as well as civil and political rights.

In Part IV, to develop the methodology that aspires to full personhood for women, I draw from two theoretical models about international law-making: the communication theory, also known as the New Haven School, and the legitimacy theory. Both theoretical frameworks are of great utility in this equality project. To be sure, in their original articulation, the concern of these theories is international lawmaking. In Part IV, I take liberties with this original context and adapt the frameworks to a reconceptualization of law for women. Thus, as Parts III and IV set forth, this project draws from international law for both process and substance.

In conclusion, this work suggests the first step towards women's full personhood is to redesign our box, or better yet break out of it, and eschew the “your rights/my rights” conceptualization of the liberal tradition that has decimated women -- the law that says pregnancy is not sex related or insists that race and sex are divisible categories. In its stead, we can adopt the basic premise of human rights ideology that the plethora of rights recognized as fundamental to our thriving as persons, necessary for our human dignity, are indivisible, interdependent, and inviolable. In this regard, we move beyond the “either/or” zero sum game approach to rights that drives the liberal model, to a more communitarian, pluralistic approach that embraces equality in difference.

Keywords: gender roles, women's rights, gender equality, anti-subordination, women's equality, women's personhood, alpha bias, Bradwell v. Illinois, Carol Gilligan, social construction of gender, feminism