SYMPOSIUM: PART II: CLAIMS IN CONTEXT: Democracy, Gender Equality, and Customary Law: Constitutionalizing Internal Cultural Disruption Skip over navigation
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Copyright (c) 2011 Indiana University School of Law
Indiana Journal of Global Legal Studies

SYMPOSIUM: PART II: CLAIMS IN CONTEXT: Democracy, Gender Equality, and Customary Law: Constitutionalizing Internal Cultural Disruption

Winter, 2011

Indiana Journal of Global Legal Studies

18 Ind. J. Global Leg. Stud. 65


Susan H. Williams*



Customary legal systems in many countries pose a serious threat to women's equality rights by legitimizing and enforcing gender discriminatory rules with respect to marriage, divorce, property, and a host of other issues. But freedom to practice one's culture and religion is also a fundamental human right. Is it possible, then, for a country to both respect and make space for the customary legal systems of its various populations and, at the same time, protect the equality rights of its women citizens? Or must the nation simply choose between these two projects, necessarily sacrificing one to the other? In this paper, I argue that greater attention to the internal dialogue of the cultural community provides resources that open up new possibilities for accommodating both sides of this dilemma.

Since Muna Ndulo has provided a detailed description of the types of problems that arise regarding gender equality in customary law systems in his excellent paper in this symposium, I will not repeat that description. 1 In many cases, the legal system gets involved when a cultural community seeks recognition or accommodation for a practice that would otherwise violate the equality norms of their country's constitution. The literature on multiculturalism has responded to this conflict primarily by choosing one side or the other in the dilemma: some theorists would sacrifice equality to protect culture while others would sacrifice culture to protect equality.

In Part I of this paper, I explain why I believe both those responses are unsatisfactory. I then ...
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