Paper for the 4^th European Feminist Research Conference:

Body, Gender, Subjectivity. Crossing borders of disciplines and institutions.

Workshop 10: Ties that Bind: the Law, Economics and the Labour Market

(Please do not quote without permission)

Ute Gerhard

(University of Frankfurt a.M./Germany)

Women’s Experiences of Injustice

A Dimension of Feminist Legal Criticism

”Human rights have no gender” was the defiant and self-confident conclusion drawn by Hedwig Dohm, writer and women’s rights activist, in her 1876 book Der Frauen Natur und Recht (Women’s Nature and Privilege), in which she demanded suffrage for women as their ”natural right,”[1] since it was a civil right and a human right on which all other rights were based. Her slogan, ”human rights have no gender,” was simultaneously a response to and protest against the opinion--as prevalent now as it was then--that human rights ”had one gender”; that is, that they did not apply, or at least did not apply adequately, to women. The claim that human rights--which have served as standards for justice, rule of law, and respect for human dignity since the French Revolution--are universal has been questioned again and again throughout the world, even in the Western industrialised nations. The fundamental standard in Article 1 of the Declaration of the Rights of Man of 1789, that ”Men are born and remain free and equal in rights,” has failed to be realised for two hundred years due to inequalities of social standing, class, property, religion, ethnicity, and especially gender.

”Women’s rights are human rights.” This equation, expressed in the present tense, was part of the closing declaration of the Fourth World Conference on Women, held in 1995 in Beijing. And ”women’s rights as human rights” has been, at least since the 1993 World Conference on Human Rights in Vienna, the slogan of an international campaign of women’s movements and organisations combating violence and discrimination against women. Irrespective of, and initially unnoticed by, scholarly feminist discourse on the meaning of equality and/or difference, an extremely vocal women’s movement for human rights has begun to make itself heard, demanding answers to questions that are by no means new. But how should we assess this new international discourse, which has made a significant difference both at the international policy level (for example through the appointment of a special United Nations rapporteur) and in the growing amount of scholarly literature on the subject? It is interesting to observe how various standpoints have rearranged themselves, shifting sides as the discourse progresses. The question is whether feminist criticism of the androcentrism of human rights will have an impact on the discussion of their universality, encouraging a reinterpretation and/or redefinition of human rights.

In my contribution I can only deal with one dimension of feminist legal criticism with regard to women’s human rights.[2] I shall ask to what extent human rights can respond to the specifically female experience of injustice. In answering this question, I will undertake a historical and empirical investigation, using examples of experienced injustice, to determine whether and, if so, how the generally worded universal concepts of human rights can be understood and interpreted in a way that responds to these specifically female experiences of injustice.

Human Rights as a Response to Fundamental Experiences of Injustice

Apart from the feminist criticism of the androcentrism of human rights, beyond the heated debate about equality and difference as reciprocal and related points of reference, in this paper I will turn the attention to the empirical and concrete historical level of injustice and the emergence of demands for rights. As demonstrated by the history of human and civil rights, human rights as standards for just and humane conditions have been developed in response to concrete historical experiences of injustice and with regard to crises of the modern world.[3] The United Nations’ 1948 Universal Declaration of Human Rights was the first set of legal rules and standards of international policy recognised world-wide in various pacts and special agreements. According to the preamble, it was a reaction to ”barbarous acts” committed by the Nazis during World War II that ”outraged the conscience of mankind.” Human rights thus do not stand for an unbroken faith in the progress of Western societies; on the contrary, they reflect the concerns of the international community and perceived threats to it. In view of the injustices committed by the Western world in the twentieth century, in the form of racism, imperialism, and genocide, they also stand for an ”attempt to find a new way to protect humanity in the face of fundamental threats to human dignity.”[4]

Even though they were not part of the positive, valid legal order, human rights have remained an important point of reference for individuals in the struggle for justice since the French Revolution, and even more so for social movements. The main condition is that they must not concern ”merely” a matter of individual suffering, misfortune, or fate, but a ”collective experience of violated integrity”[5] that can be expressed as an injustice. The question remains when such experiences of injustice lead to the claiming of rights or to social protest. Several factors must evidently coincide for such a step to be taken. In his comprehensive and detailed study, Injustice: The Social Bases of Obedience and Revolt, Barrington Moore provided concrete historical evidence, citing the German working class and the labour movement, that ”moral anger and a sense of social injustice have to be discovered and that the process of discovery is fundamentally an historical one.”[6] The wealth of his material clearly illustrates the extent to which individuals are capable of tolerating and coming to terms with maltreatment, rather than rebelling. Accordingly, it is plainly not the experience of pain and suffering alone that moves a person to resist. The idea that this pain and suffering is not inevitable and that its societal distribution is unjust is the necessary prerequisite to action.

This suggests that the ability to articulate experiences of wrongdoing and injustice is tied to the ability to understand the experiences and intentions of others; it involves having knowledge and opinions on justice and injustice from a particular locus. This experience is socially transmitted and therefore time- and context-dependent. Everyday experience, and thus everyday consciousness, serves an important orienting function in everyday life, influencing routines, communication, and modes of conduct. This explains why people are reluctant to call their own ”conscious experience” and familiar patterns into question. As confirmed in empirical studies on everyday consciousness,[7] or sociological examinations of the contentment of workers on the job,[8] or the satisfaction of housewives,[9] admitting to discontent would disrupt the laboriously created everyday balance between self-image and expectations. An additional factor is required; that is, the everyday routine must be disrupted. The chance to question one’s experiences as unjust, or unjust with respect to others, does not emerge until one’s life situation and social context become problematic or change, ”in crisis situations in which routinely practiced patterns of action fail to yield the familiar success,”[10] or if new standards and comparisons are created--for example, in the process of so-called globalisation through international communication and information.

Perceiving human rights as a response to ”fundamental” and ”exemplary experiences of injustice”[11] can possibly become a basis for understanding, especially in international and intercultural dialogue. By referring to the ”fundamental” interests at stake in human rights violations, we are reminded of the fact that in all previous, or classical, lists of rights, certain objects of legal concern have been viewed as deserving protection above everything else, since they deal with a ”core” of rights, ”without which it is not possible to become aware of one’s self as a person.”[12] However, which rights to include in this ”core” is a matter of debate: the right to live under the protection of law at all or to even have rights,[13] the ”right to security of the person,” or the classical catalogue of liberties, characterised, depending on context, as ”basic liberties,” basic needs,” or ”natural and social primary goods.”[14]

Winfried Brugger’s phrase ”exemplary experiences of injustice” refers to events and situations, the experience of which ”by the persons involved or the awareness of which by a third party would result in an elementary and like-minded judgement as ‘unjust,’ even when the persons involved and the third party belong to different groups and cultures.” This means that the experience of suffering must also exist for others; it must be generalizable. The exemplary or representative character refers to a ”universal element,” beyond its expression in a specific culture, that--it is further assumed--transcends presuppositions of ”just” or ”unjust” that apply in a specific group, class, race, gender, or culture.[15]

Despite the expansion of this approach to include a gender-specification of the problem, an explicit ”core” of women’s rights has so far been so lacking in all legal theories that additional information is needed to clarify what it encompasses. This may require a modification of theoretical assumptions and a different history of law, one that fills the existing gaps in current legal history. In the following, some systematic or paradigmatic examples from the history of the women’s movement will be presented that describe the steps in the development and explication of law.

Historical Experiences of Injustice.

All modern women’s movements entered the public arena first and foremost with demands for more rights, as rights struggles and rights movements. The impetus for a women’s social movement appeared only when there was ”not only injustice,” but ”outrage” (Brecht). It was necessary that individual, isolated experiences of suffering and injustice--that is, of lack of freedom and of legal incapacity or exclusion from equal participation--were no longer considered individual misfortunes, but experienced as injustice by and with others and asserted to be an infringement of rights. The immediate causes, the social and political conditions that triggered awareness and political action, differed greatly in the various historical phases. But the form of rights violations, the systematic exclusion of women, and the reactions to women’s movements were structurally the same, at least in the period of emerging civil society. I have identified three historical stages of legal development in the modern history of struggles for women’s rights, corresponding to typical experiences of injustice:

1. The experience of exclusion from civil rights and political participation in the context of the bourgeois revolution and democracy movements of the eighteenth and nineteenth centuries.

2. Denial of civil liberties, individual autonomy, and rights of property for women, in the form of gender tutelage and conjugal authority of husbands, in matrimonial and family law.

3. Sexual exploitation and violence against women, not only because they violate personal and physical integrity, but also as structural violence and a curtailment of life options and agency for women; this is also the impetus for and focus of the current international campaign ”Women’s Rights are Human Rights,” supported by the 1995 United Nations World Conference on Women.

These examples of basic experiences of injustice and women’s demands for rights are not merely concrete manifestations of the above-mentioned levels of feminist legal criticism. They also correspond to the historical reconstruction, which has recently received considerable public attention, of the three dimensions of ”social rights of citizenship,” according to Thomas H. Marshall.[16] Marshall illustrated his delineation of periods with the situation in England. Accordingly, the conflict over civil rights took place primarily in the eighteenth century, the struggle for rights of political participation in the nineteenth century, and basic social rights were an outcome of the welfare-state politics of the twentieth century. Not only the lack of simultaneity, but also the different order in which women’s and men’s rights were recognised, indicates fundamental, structural differences in both a qualitative and quantitative sense. The forms of rights violations and the types of experiences of injustice show that it is virtually impossible to interpret the issue of women’s rights simply as a delay in the process of democratisation.

To 1. The experience of exclusion from the category of citizens.

In connection with the bourgeois revolutions in Europe and the United States, women began to demand, first and foremost, political rights. The shared motivating force was the experience of exclusion--exclusion from the category of active citizens--and thus the ”unfulfilled promise” of the bourgeois revolutions. This pertained to the collective protest by women in the French Revolution, who demanded not only bread but human rights and political participation. In the most important women’s political document of the period, the Declaration of the Rights of Woman and Citizen, written in 1791 by Olympe de Gouges, the specific injustices experienced by women were indicated in the parallels drawn to, and particularly in the deviations from, the ”universal” Declaration of the Rights of Man and Citizen. At the same time, de Gouges paved the way for the radicalisation of the principle of democracy as a social contract between men and women. It is noteworthy that de Gouges’s concept of politics expressly provided for the compatibility of motherhood and civil rights. In fact, the main reason she directly demanded basic liberties in this catalogue of rights was to assure that existential gender-specific differences be taken into consideration and recognised. For instance, the right to free communication of thoughts and opinions could obviously mean different things for men and women. The passage that seems far too detailed and inappropriately worded for such a document nevertheless characterised a fundamental experience of injustice by women. This was the demand that paternity--that is, the fathers’ responsibility and obligation to support even children born out of wedlock--could be investigated and made public.[17] This direct connection between the role of citizen and that of mother was a provocation and a protest , not only against contemporary legal practice; it also contradicted modern constitutional and legal theory, which excluded mothers and wives from the category of active citizens through the marriage contract (see above). This point had systematic significance for Olympe de Gouges, as demonstrated by the fact that, in addition to this women’s rights declaration and numerous other works, she drafted a marriage contract as a social contract between man and woman. The aim of this gender contract was to eliminate the two-tiered structure of bourgeois legal orders that separated the private and political spheres on the basis of gender. In this way she put her finger on the contradiction, inherent in gender relations in civil society, between the publicly expressed promise of equality of all human beings and the private despotism and violence in the so-called unlegislated realm of the family.

Further examples of claims for universal basic and human rights could be mentioned that served to legitimise the efforts of the nineteenth-century women’s movements.. The Declaration of Sentiments, adopted in 1848 at the first U. S. Women’s Congress in Seneca Falls, is a paraphrase of the 1776 United States’ Declaration of Independence with a few significant modifications. In addition to the demand for equal, inalienable rights for men and women, which are listed in the U. S. Constitution as including, especially, ”life, liberty, and the pursuit of happiness,” the Declaration of Sentiments also contained a negative list of ”repeated injuries and usurpations on the part of man toward woman, having in direct object the establishment of an absolute tyranny over her.”[18] This document is an example of the self-confident and legally pragmatic point of departure of the first women’s movement in the United States.

The experience of exclusion and the disappointment in their revolutionary comrades-in-arms repeated itself in European history in the revolutions of 1830 and 1848. Again and again, throughout Europe, women who had participated in bringing about democratic movements, and who had taken a stand for liberty, democracy, and the unity of their country, were forced to admit that they had been ”forgotten” and that the political sphere had been established as a male domain and as men’s business. This is why Louise Otto’s comment in 1849 in the women’s journal she published, ”I am recruiting women citizens for the realm of freedom,” struck a chord in many women:

Liberty is indivisible! Thus free men shall tolerate no enslaved men beside them--and no enslaved women. We must doubt the honest will and intellect of all freedom fighters who stand up for the rights of men, but not at the same time for the rights of women.[19]

There was still a long way to go before equal rights of citizenship would be achieved, that is, until equal democratic suffrage would be established in most countries of the Western world in 1918. The international women’s suffrage movement that developed in diverse initiatives in the late nineteenth century insisted that ”human rights have no gender” and demanded the right to political self-determination as the ”foundation,” the starting point, for the implementation of all other rights demanded by its members. Explaining why women need ”the suffrage”[20] always brought together two lines of reasoning, one claiming equality and one defending difference. Whereas the suffragists initially supported the general political discourse that demanded equality ”as a human right,” it was always emphasised that the goal was never to ”be the same as men.” Depending on the political context, reference to gender difference, female particularity, and women’s contribution to the general good turned out to be a strategic advantage and mobilising bond at the end of the nineteenth century. Nonetheless, this only confirms the fact that, after the decline of the German empire and the defeat in the war, women were not granted the right to vote as an act of magnanimity. Instead, women’s suffrage was achieved due to the efforts of a broad-based women’s movement with an international network. Yet suffrage as the ”paradigm for rights in general”[21] did not, as the pioneering women had hoped, bring about fundamental changes in gender relations in state and society after 1918. This had more to do with the flip side of this persistent exclusion of women from politics--that is, with their inclusion in the private sphere by means of family law.

To 2. Legal incapacity and personal dominance in private law.

Refusing to grant women citizenship status, and thus excluding them from all public and political rights, was, from a legal perspective, closely tied to the ”special role” played by women in the family, according to theorists of civil society. ”Women are the representatives of love, just as men are representatives of law in a general sense.”[22] This condensed gender assignment hit the nail succinctly on the head with respect to civil society.

This is why various attempts at personal liberation and emancipation from private constraints were necessary prior to the mobilisation and protests that took place within the context of the 1848 March Revolution. The participating women were concerned with being recognised as persons, individuals, and holders of rights, and with claiming the ”right to freely develop one’s personality and the right to freedom of opinion and conscience.” Contemporary women’s literature provided frequent confirmation of this:

We now demand from the new age a new system of law. . . . Whoever encroaches upon this right of personality is committing a brutal act of violence. . . . This right of mine has been violated; my only recourse is to use my freedom of speech! My matter speaks for itself; it is its own advocate. But it is not my matter alone.[23]

A ”new age,” with new political and social conditions and public forums, made it possible to speak of the personal experience of suffering as an experience of injustice. It became clear that this experience could be generalised and could be understood by many others as such. From the outset, conditions of marriage had been characterised as especially problematic and in need of change. Louise Dittmar’s harsh criticism of the ”marriage of convenience” or the ”essence of marriage” is an example of this. She criticised their significance on the basis of her insight into the social context:

A lot of relationships are being shaken in recent times; a lot of injustice eliminated; a lot of nonsense and convention done away with. . . . [But conditions of marriage carry the] brand of slavery. . . . In its political relationships, marriage corresponds to the representative system, . . . since the man embodies virtually all authority, since he is the representative of political sovereignty, the absolute monarchy, the unrestricted government. . . . The political status of the man in contrast to the woman is that of the patrician to the plebian, of the freeman to the slave.[24]

Nevertheless, at first such radical critiques were rare. Louise Dittmar and Louise Aston were pioneers of an emancipation movement, but the middle- and working-class women’s movements were unable to create public interest in such emancipation until social and political conditions changed once again in the late nineteenth century. In Germany, while the internal trigger for women was the experience of injustice in everyday married life, the external impetus for a discourse on rights among women was the codification of the German Civil Code in 1900, after a prolonged discussion that began following the founding of the German Reich in 1871.[25]

Full legal capacity and civic equality are necessary for wives and mothers, not only out of personal interest, for the sake of their own human dignity, but also in the interests of the family, in the interests of the state, . . . in the interests of all new social obligations and all tasks for the common good that today’s woman must perform, which she can only fulfil as a free person, in consciousness of her full human responsibility. . . . What a contradiction it is to refer again and again to her so-called destiny, her vocation as mother and her purpose for the species. . . and then for her to be so shamefully low in society’s estimation, precisely in this vocation.[26]

The legal struggles and mass protests of the women’s movement in much of the Western world were directed against matrimonial and family laws that were anachronistic and patriarchal and their flip side, the double standard, according to which prostitution, for example, was tolerated by the state and only the women were prosecuted. Indignation over this ”boundless injustice”[27] sparked the international movement of so-called abolitionists, led by Josephine Butler. They mobilised themselves against state regulation of prostitution and, like many other campaigns of the morality movement, made sexual violence in gender relations the focus of their critique of society.[28] It should be noted that the struggle for legal capacity in marriage (unmarried women essentially had equal rights under the new Civil Code) experienced virtually no success at all--especially as the Civil Code’s matrimonial and family laws remained unchanged even after the attainment of equal citizenship rights, thus undermining, women’s capacity to act in political and civil matters. Not until 1977 were full equal rights formally guaranteed in West German matrimonial law.

To 3. Social rights and violence against women.

The women’s movement in the late nineteenth and early twentieth centuries made an important contribution, through all its endeavours and areas of concern, to the discussion and resolution of social problems, though this fact has gone largely unnoticed in the history of the welfare states. Thus, like the labour movement, it helped lay the groundwork for the state welfare and social policies. Under the motto of ”a policy of organised motherliness,”[29] the women’s movement organised a variety of sociopolitical projects even before social security rights were achieved, making a decisive contribution to social reform and, in particular, to the professionalisation of social work.[30] This served to create the institutions and professions of community and welfare activities, which today comprise the ”social,” caring side of the welfare state, beyond transfer payments and public benefits, and make up the social services that are an indispensable component of the welfare state.

Several important self-help projects and achievements were, for example, the establishment early on of employment agencies, vocational counseling, and legal aid offices, where movement activists provided other women free of charge with advice and support in all legal matters and disputes. The movement for moral reforms was led primarily by radical middle-class women; and the proletarian women’s movement agitated for equal pay for equal work, the extension of protection of maternity rights, and employment protection for women. Aside from these movements, the bourgeois women’s movement enjoyed its greatest success in the area of education and training, especially since its emphasis on gender differences enabled it to explain women’s special contribution to culture as ”a politics of difference.”[31] In fact, access to higher education for girls, to university study, and to special women’s professions was a prerequisite for social participation, self-determined action, and the development of female individuality. Thomas H. Marshall, in his broad conception of social rights, described the right to education as ”a genuine social right of citizenship,” and as a ”necessary prerequisite of civil freedom.”[32]

The modern women’s movement basically took up the issues left unresolved by the earlier movement. On the basis of formally recognised equal rights, the newer movement was able to articulate, more clearly and confidently than the previous generation could, the deeper experiences of injustice concealed within the private sphere--the persistent sore point in gender relations. These private injustices--domestic violence, etc.--were articulated in so-called consciousness-raising groups. The German term for such groups, Selbsterfahrungsgruppe, or ”self-experience” group, underlines the significance that sharing experiences may have for the individual and collective learning process. Their central demands were no longer ”simply” equal rights; instead they called for private and political autonomy. This included, in particular, bodily autonomy and exposure of the many scandalous forms of violence against women that are protected because they take place in the private sphere. Violence against women was recognised not only as direct physical violence, but also as structural violence. The exclusion of private experience from the legal domain, and thus from the protection of the law, was again called into question, not only in an effort to assure protection from violence and secure the woman’s quality of life; it was and is about the extension of political agency, from an international perspective. In a broad sense, it is about empowering women. In the concept of citizenship rights, this space for women to act is viewed as an ensemble of political, civil, and social rights, marking the point of departure for an international feminist legal critique that has recently found a political platform in the international ”Women’s Rights are Human Rights” campaign.

Prospects of the International ”Women’s Rights are Human Rights” Campaign

But how, in view of gender as well as cultural differences, can agreement be reached on the validity of universal human rights? And how can the extent of suffering and human rights violations that has gone undocumented thus far, especially as experienced by women, become a subject of public discussion, when at the same time the victims are prevented from speaking, lack information about human rights, and are unable to express their experiences as injustice? Human rights cannot be imported or prescribed; they apply only if the people involved are in a position to claim or defend them as rights.

A summary of the theoretical as well as the historical, empirical evidence indicates that women’s elementary experiences of injustice are difficult to perceive and discuss as human rights violations largely because the neglect, legal incapacitation, and degradation of women, the violation of their physical integrity, and the failure to recognise them as equals or holders of rights in almost all cultures are accepted aspects of gender arrangements and thus of women’s role. Cultural traditions, customs, and everyday routines often even lend legal legitimacy to the very violence of these relationships. There is obvious common ground among the different sufferings and injustices experienced by women. Women’s particular vulnerability is generally based on their gender role, their ability to bear children, and the ”invisible” work they perform in the family. Yet this private, unlegislated sphere is so firmly rooted in historic traditions and cultural characteristics that violations, discrimination, and restricted living conditions cannot even be discussed, let alone added to the canon of fundamental violations of rights, unless conditions change. It is not merely a characteristic of Western civilisation, but a fundamental element of the structure of all patriarchal societies, that subordination, legal incapacity, obedience, a hierarchical division of labour, and the authoritarian nature of sexual relations comprise the substance and core of the traditional role assigned to women. Claiming rights in this situation is often not only next to impossible, it also contradicts the internalisation of these roles and the image of women’s identity. Consequently, the women involved often feel they are imperilling their human relationships, since the structure of these relations are so firmly anchored in their everyday lives and thus in routines, religious rules, or cultural traditions.

>From an intercultural and international perspective, the unique aspect of human rights violations against women thus lies in the fact that they often take place in the non-public, intimate, private sphere of the family, where they are tolerated and go unpunished, and thus are not subject to public law or protection by the state. The systematic separation of public from private law is therefore one of the main obstacles to the safeguarding of human rights for women.

The international campaign for the worldwide recognition of women’s rights as human rights has specifically addressed this problem, with a two-fold aim. On the one hand, it has adopted feminist criticism of the androcentrism of positive law and human rights, and criticises the inadequacy of human rights protections for women. On the other hand, it not only claims the universality of human rights, but aims to expand them, ”redefining” them with respect to women’s specific concerns.[33] The above-mentioned dimensions of feminist legal criticism thus become even more clearly evident: (1) the ”maleness” or androcentrism of the definitions of crimes and of human rights; (2) the dialectic of equality as a universal human right versus consideration and recognition of gender-specific differences; and finally, (3) the distinction between public and private law, which is problematic for the protection of women’s rights. The vehement defense of protection of the family and of religiously and culturally rooted family law as a state task, even a state interest, proves an additional barrier, especially for international human rights protections targeted at states and their institutions. Nor has the common hierarchy of human rights according to generation in human rights theory offered any helpful points of reference for women’s rights discourse. Women in the southern hemisphere, in particular, have rejected this way of prioritising rights--political and civil rights as the first generation, followed by economic, social, and cultural rights, and finally by the third generation of collective or group rights, such as the rights to development, a liveable environment, and peace.[34] Linking women’s rights to the so-called third generation rights, as group rights, has been shown to be a trap, since international development policies, as well as women’s participation in nationalist movements and in the decolonisation process, have tended to support male economic dominance at the expense of women’s interests.[35]

The United Nations and its committees have not proven the best defenders of women’s rights. Nor have the achievements of existing human rights agencies created under the UN charter been very positive in protecting women.[36] The United Nations has had a Commission on the Status of Women since 1947-- an official, political agency that drafts all conventions dealing specifically with women and which initiated a procedure for the protection of the human rights of women in 1983. In 1979, the United Nations adopted the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).[37] CEDAW went into force in 1981 and has since been ratified by 160 countries, though over eighty registered serious reservations, especially regarding marriage and family rights. Feminist critics have pointed out that the approach to discrimination taken in this convention is also based on male standards; that is, equal rights are defined as equal status in the public sphere (”The States Parties to the present Convention . . . Have agreed on the following”: . . . ”To establish legal protection of the rights of women on an equal basis with men . . .” (Pt. I, Art. 2 c”). On the other hand, there is danger that separating out rights specific to women from the general human rights committees and issues could again lead to the marginalisation of women. Finally, far too few women who could exercise influence have been represented up to now on the various committees. Not until 1993 was ”gender-specific violence [defined] as discrimination against women” in a supplemental protocol, referring to the special significance of oppression in the private sphere.[38]

Nevertheless, owing not least to international public discussion by women, a movement for the human rights of women has emerged amidst human rights theories and political practice. It is clearly not led by women from the northern hemisphere; quite the contrary. The development of publicity and discussion by women at the international level was decisive. This was furthered by the United Nations Decade of the Woman, from 1975 to 1985, which led to change, or at least to increased attention to women, in development policies. Starting in 1975, several World Conferences on Women have taken place under the auspices of the United Nations, at which unofficial forums organised by nongovernmental organisations (NGOs) have led to a new global public concerned with women’s issues.[39] In addition to the resources that the United Nations has made available in preparation for the Conferences, a mobilisation network of local and national organisations and projects has formed to discuss and prepare the topics and issues of dispute. These projects and activists have freed the human rights campaign from suspicions that it is a manifestation of elitist or Western feminism. Like the 1985 World Conference on Women in Nairobi, they have demonstrated the strength and self-confidence of women from other parts of the world.[40] A decisive step for women from non-western cultures in demanding human rights was, however, that they themselves began to define the substance and meaning of their cultures, using their own experience and legal systems to confront patriarchal practices and interpretations.[41]

In addition, the subject of women’s human rights has been deliberately placed on the agenda of United Nations conferences by various organisations since 1991. This effort has been assisted by systematic documentation of human rights violations against women throughout the world, and through the organisation of a women’s tribunal in conjunction with the 1993 human rights conference in Vienna, supported by hundreds of thousands of signatures from more than 120 countries. The main subject and the point on the agenda that brought together all experiences of injustice at the Vienna conference was ”violence against women.” Thus the Fourth World Conference on Women in 1995 in Beijing included the following statement in its Declaration and Platform for Action:

Violence against women both violates and impairs or nullifies the enjoyment by women of human rights and fundamental freedoms. Taking into account the Declaration on the Elimination of Violence against Women and the work of Special Rapporteurs, gender-based violence, such as battering and other domestic violence, sexual abuse, sexual slavery and exploitation, and international trafficking in women and children, . . . [etc.] are incompatible with the dignity and the worth of the human person and must be combated and eliminated. . . .[42]

The driving force of the human rights campaign, ”putting these issues squarely on the world’s doorstep,”[43] is therefore a dynamic and participatory concept of human rights that must prove itself, especially in view of cultural differences. The goal remains the elimination of androcentric assumptions, a redefinition of human rights, and the introduction of the specific experiences of women to the practical discourse on human rights, without once again separating out and isolating questions of women’s rights. Those concerned are well aware of how many questions remain unanswered and how little human rights have so far changed in practice. Yet the history and range of this feminist discourse on human rights is unique in international law, a political issue that demands attention.

Notes:

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[1] For further discussion see Ute Gerhard, Debating Women’s Equality. Towards a Feminist Theory of Law , Rutgers (Forthcoming)

[2] Hedwig Dohm, Women’s Nature and Privilege, trans. Constance Campbell (Westport, CT: Hyperion Press, 1976), 142; first published as Der Frauen Natur und Recht (Berlin: Wedekind & Schwieger, 1876).

[3] Johannes Schwardtländer and Heiner Bielefeldt, Christen und Muslime vor der Herausforderung der Menschenrechte (Bonn: Wissenschaftliche Arbeitsgruppe für Weltkirchliche Aufgaben der Dt. Bischofskonferenz, 1992), 22; Heiner Bielefeldt, ”Die Menschenrechte ‘das Erbe der gesamten Menschheit,’” in Würde und Recht des Menschen, Festschrift für Johannes Schwartländer zum 70. Geburtstag, ed. Heiner Bielefeldt, Winfried Brugger, and Klaus Dicke (Würzburg: Könighausen & Neumann, 1992), 143 ff., 156.

[4] Schwardtländer and Bielefeldt, Christen und Muslime vor der Herausforderung der Menschenrechte, 22.

[5] Axel Honneth, Der Kampf um Anerkennung. Zur moralischen Grammatik sozialer Konflikte (Frankfurt/Main: Suhrkamp, 1992).

[6] Barrington Moore, Injustice: The Social Bases of Obedience and Revolt (White Plains, NY: M. E. Sharpe (with Pantheon Books), 1978), 15.

[7] See Thomas Leithäuser et al., Entwurf zu einer Empirie des Alltagsbewußtseins (Frankfurt/Main: Suhrkamp, 1977).

[8] See Oskar Negt and Alexander Kluge, Öffentlichkeit und Erfahrung (Frankfurt/Main: Suhrkamp, 1977), 59, 67.

[9] See Helge Pross, Die Wirklichkeit der Hausfrau (Reinbek: Rowohlt, 1977).

[10] Arbeitsgruppe Bielefelder Soziologen, ed., Alltagswissen, Interaktion und gesellschaftliche Wirklichkeit (Reinbek: Rowohlt, 1973), 22; see also Martin Kohli, Soziologie des Lebenslaufs (Darmstadt: Luchterhand, 1978), 15.

[11] See Winfried Brugger, ”Stufen der Begründung von Menschenrechten,” Der Staat 31 (1992): 20-38.

[12] Axel Honneth, Der Kampf um Anerkennung, 148 ff.

[13] Hannah Arendt, ”Es gibt nur ein einziges Menschenrecht” (1949), in Praktische Philosophie/Ethik, ed. Otfried Höffe, Gerd Kadelbach, and Gerhard Plumpe (Frankfurt/Main: Fischer, 1981), 2: 152 ff.; Hans-Richard Reuter, ”Menschenrechte zwischen Universalismus und Relativismus,” Zeitschrift für Evangelische Ethik 40 (1996): 135-147.

[14] John Rawls, A Theory of Justice, (London, Oxford and NY: Oxford University Press), 62.

[15] Brugger, ”Stufen der Begründung von Menschenrechten,” 19 ff.

[16] Thomas Humphrey Marshall, Citizenship and Social Class (Cambridge: Cambridge Univ. Press, 1950). This appears as part one in Thomas H. Marshall and Tom Bottomore, Citizenship and Social Class (London and Concord, MA: Pluto Press, 1992).

[17] See Olympe de Gouges’s Declaration of the Rights of Woman and Citizen, Article 11.

[18] ”The Declaration of Sentiments,” Seneca Falls Conference, 1848, taken from: Elizabeth Cady Stanton, A History of Woman Suffrage (Rochester, NY: Fowler and Wells, 1889), 1: 70-71. Accessed through the Internet Modern History Sourcebook.

[19] Louise Otto, ”Die Freiheit ist unteilbar,” in Die Frauen-Zeitung (Frankfurt/Main: Syndikat,1979), 41; reprint of no.1 (1849).

[20] Dohm, Women’s Nature and Privilege.

[21] Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, trans. William Rehg (Cambridge: MIT Press, 1996), 409-427 (271)

[22] Entry: ”Frauen” in Conversations-Lexicon, oder encyclopädisches Handwörterbuch für gebildete Stände, 7 vols. (Stuttgart: Macklot, 1818-1819), 2: 789.

[23] Louise Aston, ”Meine Emancipation, Verweisung und Rechtfertigung,” introduction, in Für die Selbstverwirklichung der Frau: Louise Aston, ed. Germaine Goetzinger (Frankfurt/Main: Fischer, 1983), 61 f.

[24] Louise Dittmar, ”Die männliche Bevormundung,” in Frauenemanzipation im deutschen Vormärz. Texte und Dokumente, ed. Renate Möhrmann, (Stuttgart: Reclam, 1978), 64). This is an excerpt originally published in Louise Dittmar, ed., Das Wesen der Ehe. Nebst einigen Aufsätzen über die soziale Reform der Frauen (Leipzig: no publ. listed, 1849).

[25] See the petition of the Allgemeinen deutschen Frauenvereins ”Einige deutsche Gesetzparagraphen über die Stellung der Frau,” with comments by Louise Otto (Leipzig: Schäfer, 1876); on the struggle against the German Civil Code, see Beatrix Geisel, ”Patriarchale Rechtsnormen ‘unterlaufen.’ Die Rechtsschutzvereine der ersten deutschen Frauenbewegung,” in Frauen in der Geschichte des Rechts. Von der Frühen Neuzeit bis zur Gegenwart, ed. Ute Gerhard (Munich: Beck, 1997), 683-697.

[26] Marie Stritt, Das bürgerliche Gesetzbuch und die Frauenfrage (Frankenberg/i.S.: Reisel, 1898), 4, 13.

[27] Katharina Scheven, ”Was versteht man unter ‘Reglementierung der Prostitution?’” Der Abolitionist, no. 1 (1902), 2.

[28] See Anna Pappritz, ”Die Teilnahme der Frauen an der Sittlichkeitsbewegung,” in Handbuch der Frauenbewegung, ed. Helene Lange and Gertrud Bäumer (Berlin: Moeser, 1901), 154-192.

[29] Agnes von Zahn-Harnack, Die Frauenbewegung. Geschichte, Probleme, Ziele (Berlin: Deutsche Buchgemeinschaft, 1928), 76 f.

[30] See Dora Peyser, Alice Salomon. Die Begründerin der sozialen Frauenberufe in Deutschland (Cologne and Berlin: Heymann, 1958); Alice Salomon, Charakter ist Schicksal. Lebenserinnerungen (Weinheim: Beltz, 1983); Christoph Sachße, Mütterlichkeit als Beruf (Frankfurt/Main: Suhrkamp, 1986).

[31] See Helene Lange, Kampfzeiten. Aufsätze und Reden aus vier Jahrzehnten (Berlin: Herbig, 1928), 2: 8 ff., 197 ff.

[32] Marshall, cited from Marshall and Bottomore, Citizenship and Social Class, 16; see also Anna Yeatman, ”Beyond Natural Right: The Conditions for Universal Citizenship,” in Postmodern Revisionings of the Political, ed. A. Yeatman (New York and London: Routledge, 1993), ##.

[33] See Charlotte Bunch, ”Transforming Human Rights from a Feminist Perspective,” in Women's Rights--Human Rights. International Feminist Perspectives, ed. Julie Peters and Andrea Wolper (New York and London: Routledge, 1995), 11-17; Elisabeth Friedman, ”Women's Human Rights: The Emergence of a Movement,” in ibid., 18-34.

[34] See Eibe Riedel, ”Menschenrechte der dritten Dimension,” Europäische Grundrechte-Zeitschrift 16, no. 1/2 (1989): 9 ff.

[35] See Hillary Charlesworth, ”What are ‘Women's International Human Rights’?” in Human Rights of Women. National and International Perspectives, ed. Rebecca J. Cook (Philadelphia: Univ. of Pennsylvania Press, 1994), 58-84, here: 75.

[36] Sonja Wölte, ”Der internationale Schutz der Menschenrechte von Frauen: Ansätze einer feministischen Kritik am UN-Menschenrechtsinstrumentarium,” unpublished university thesis for the department of social sciences (Frankfurt/Main, 1996), 20 ff.

[37] Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted by the United Nations General Assembly on 18 December 1979 (Resolution 34/180).

[38] See also Ruth Klingelbiel, ”Kein Rückschritt und kein Meilenstein. Die 4. Weltfrauenkonferenz zwischen Neuinterpretation und Erweiterung des Menschenrechts-konzepts,” Wissenschaft & Frieden, no. 4 (1995): 12-16; Ines Holthaus, ”Frauenmenschenrechtsbewegungen und die Universalisierung der Menschenrechte,” Peripherie, No. 61 (1996): 6-23.

[39] See Christa Wichterich, Frauen der Welt. Vom Fortschritt der Ungleichheit (Göttingen: Lamuv, 1995).

[40] Of the wealth of literature on the subject, see especially the two anthologies Cook, ed., Human Rights of Women, and Peters and Wolper, eds., Women's Rights--Human Rights, including many national reports.

[41] See Nahid Toubia, ”Female Genital Mutilation,” in Women's Rights--Human Rights, ed. Peters and Wolper, 224-237.

[42] Beijing Declaration and Platform for Action, report of the Fourth World Conference on Women, United Nations (New York, 1996), no. 224; cited in Human Rights Reader, ed. Ishay, 497.

[43] Bunch, ”Transforming Human Rights from a Feminist Perspective,” 17.